The Republic of the Philippines v.

The People's
Republic of China

Seal of the Permanent Court of Arbitration

Court An arbitral tribunal constituted under Annex VII to the

1982 United Nations Convention on Law of the

Sea (UNCLOS)

Full case An Arbitration before an arbitral tribunal constituted under

name Annex VII to the 1982 United Nations Convention on Law of

the Sea between the Republic of the Philippines and the

People's Republic of China

Decided 12 July 2016

Citation(s) PCA Case No. 2013-19

Transcript(s) https://pcacases.com/web/view/7

Ruling

 There was no legal basis for China to claim historic rights to resources

within the sea areas falling within "nine-dash line"

 UNCLOS does not provide for a group of islands such as the Spratly

Islands to generate maritime zones collectively as a unit

 China had breached its obligations under the convention on

the International Regulations for Preventing Collisions at Sea and

 Article 94 of UNCLOS concerning maritime safety

 China violated its obligations to refrain from aggravating or extending

the parties disputes during the pendency of the settlement process

Court membership

Judges Presiding Arbitrator:[1]

sitting Thomas A. Mensah

Members:

Jean-Pierre Cot

Rüdiger Wolfrum

Alfred H. Soons

Stanislaw Pawlak

Philippines v. China (PCA case number 2013–19), also known as the South China Sea Arbitration, was an arbitration
case brought by the Republic of the Philippines against the People's Republic of China under Annex VII to the United
Nations Convention on the Law of the Sea(UNCLOS) concerning certain issues in the South China Sea including the legality
of China's Nine-dash line.[2]
On 19 February 2013, China declared that it would not participate in the arbitration. [3] On 7 December 2014, a white
paper was published by China to elaborate its position. [4][5] On 29 October 2015, the arbitral tribunal ruled that it has
jurisdiction over the case,[6] taking up seven of the 15 submissions made by the Philippines. [7]
On 12 July 2016, the tribunal ruled in favor of the Philippines. It clarified that it would not "...rule on any question of
sovereignty over land territory and would not delimit any maritime boundary between the Parties". [8][9]The tribunal also ruled
that China has "no historical rights" based on the "nine-dash line" map.[8][9] China has rejected the ruling, as has Taiwan.[10][11]

Background
The dispute has been affected by the fact that, after Japanrenounced all claims to the Spratly Islands and other conquered
islands and territories in the Treaty of San Francisco and Treaty of Peace with the Republic of China (Taiwan) signed on 8
September 1951, it did not indicate successor states[12] since China was not invited to the treaty talks held in San Francisco.
In reaction to that, on 15 August, the Chinese government issued the Declaration on the Draft Peace Treaty with Japan by
the US and the UK and on the San Francisco Conference by the then Foreign Minister Zhou Enlai, reiterating China's
sovereignty over the archipelagos in the South China Sea, including the Spratly Islands, and protesting about the absence of
any provisions in the draft on who shall take over the South China Sea islands following Japan's renouncement of all rights,
title and claim to them. It reiterated that "the Chinese government of the day had taken over those islands" and that the
PRC's rightful sovereignty "shall remain intact". [13]
On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the Republic of
China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of Peace which Japan
signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the San Francisco Treaty), Japan has
renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the Pescadores) as well as the Spratly Islands and the
Paracel Islands."[13]
The Philippines bases its claim on its geographical proximity to the Spratly Islands. [14]
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands and declared
the territory as "Freedomland", now known as Kalayaan for himself and later requested to make the territory a protectorate
of the Philippines.[15] Tomas Cloma even stole China (ROC)'s national flag from the Taiping Island. In July 1956, he
apologized officially for his act and he surrendered the flag he stole to China's embassy in Manila. On 2 October 1956, he
wrote a letter and ensured he would not make further training voyages or landings in the territorial waters of China (ROC). [16]
Philippine troops were sent to three of the islands in 1968, [15] when the Philippines were under President Ferdinand Marcos.
In the 1970s, some countries began to invade and occupy islands and reefs in the Spratlys. [17][18] The Spratlys were placed
under the jurisdiction of the province of Palawan in 1978. [15]
The People's Republic of China (PRC) claims it is entitled to the Paracel and Spratly Islands because they were seen as
integral parts of the Ming dynasty.[14] China and Taiwan have these same territorial claims.[14] The Republic of China
(Taiwan) took control of the largest island - Taiping Island - in the group since 1946.[15]
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of ownership as
evidence.[14] Hanoi began to occupy the westernmost islands during this period. [14]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.[19]
Brunei also extended its exclusive economic zone, claiming Louisa Reef.[19]

Optional exceptions to applicability of compulsory procedure[edit]

Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to applicability of compulsory procedures
provided in Section 2. China made declaration in accordance with the UN Convention on the Law of the Sea in 2006 not to
accept any of the procedures provided for in section 2 of Part XV of the Convention. Many countries including the United
Kingdom, Australia, Italy, France, Canada, and Spain made similar declarations to reject any of the procedures provided for
in sections 2 of Part XV of the Convention with respect to the different categories of disputes. [20][21]

Participants[edit]
The arbitration involved the Philippines and China. [22]

Philippine stance[edit]

Map of Pedro Murillo Velarde, 1774

The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS agreements
about exclusive economic zones and territorial seas.[23] It says that because most of the features in the South China Sea,
such as most of the Spratly Islands, cannot sustain life, they cannot be given their own continental shelf as defined in the
convention.[24]

 Agent - Office of the Solicitor General of the Philippines

 Counsel and Advocates
 Paul S. Reichler, Lawrence H. Martin and Andrew B. Loewenstein of Foley Hoag
 Professor Bernard H. Oxman of University of Miami School of Law
 Professor Philippe Sands QC of Matrix Chambers
 Professor Alan Boyle of Essex Court Chambers
 Chinese stance[edit]

China's nine-dotted line claimover the South China Sea, 1947

China refused to participate in the arbitration, stating that several treaties with the Philippines stipulate that bilateral
negotiations be used to resolve border disputes. It also accuses the Philippines of violating the voluntary Declaration on the
Conduct of Parties in the South China Sea, made in 2002 between ASEAN and China, which also stipulated bilateral
negotiations as the means of resolving border and other disputes. [25][26][27] China issued a position paper in December 2014
arguing the dispute was not subject to arbitration because it was ultimately a matter of sovereignty, not exploitation
rights.[28] Its refusal will not prevent the PCA tribunal from proceeding with the case. [29]After the award ruling, the PRC issued
a statement rejecting it as 'null' and having decided not to abide by the arbitral tribunal's decision, said it will "ignore the
ruling".[30]

Claimants of the South China Sea[edit]

Taiwanese stance[edit]
The arbitral tribunal has not invited Taiwan to join the arbitration, and no opinion of Taiwan has been sought. [31] The
Philippines claimed that Taiping Island is a rock. In response,[32] President Ma Ying-jeou of the Republic of China on Taiwan
rejected the Philippines' claim as "patently false". [33] Taiwan invited the Philippines and five arbitrators to visit Taiping Island;
the Philippines rejected the invitation, and there was no response from the PCA tribunal. [34]

Vietnamese stance[edit]
On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam supports the
filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the PCA tribunal to take note of
Vietnam's claims on certain islands such as the Paracels.[35]

Other stances[edit]
Brunei sent its own UNCLOS claim through a preliminary submission prior to the arbitration. [36] In May 2009, Malaysia and
Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the Sea with regard to the
islands[clarification needed]. This was in relation to extending their claimed continental shelves and Exclusive Economic Zones. The
People's Republic of China rejected the claims since those violate the "nine-dotted line". The Philippines challenged the
Malaysian claim stating that the claims overlap with the North Borneo dispute.[37]
Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life, effectively calling
the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that the islands belong to them through
geographic proximity.[37][38]

Arbitration[edit]
Hearings[edit]
On 7 July 2015, case hearings began with the Philippines asking the tribunal to invalidate China's claims. The hearings were
also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.[6] The case has been compared
to Nicaragua v. United States due to similarities of the parties involved such as that a developing country is challenging
a permanent member of the United Nations Security Council in an arbitral tribunal.[39]
On 29 October 2015, the PCA tribunal ruled that it had the power to hear the case. It agreed to take up seven of the 15
submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like Mischief Reef can be
considered islands. It set aside seven more pointed claims mainly accusing Beijing of acting unlawfully to be considered at
the next hearing on the case's merits. It also told Manila to narrow down the scope of its final request that the judges order
that "China shall desist from further unlawful claims and activities."[7]
The arbitral tribunal scheduled the hearing on merits of the case from 24 to 30 November 2015. [40]

Award on Jurisdiction and Admissibility[edit]

On 29 October 2015, the PCA published the award by the tribunal on Jurisdiction and Admissibility [41] for the case. The
tribunal found that it has jurisdiction to consider the following seven Philippines' Submissions. (Each number is the
Philippines' Submissions number.) The tribunal reserved consideration of its jurisdiction to rule on Nos. 1, 2, 5, 8, 9, 12, and
14.

 No.3 Philippines'position that Scarborough Shoal is a rock under Article 121(3).

 No.4 Philippines' position that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide elevations that do not
generate entitlement to maritime zones.
 No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations "that do not generate
any maritime entitlements of their own".
 No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an entitlement to an
exclusive economic zone or continental shelf.
 No.10 "premised on [the] fact that China has unlawfully prevented Philippine fishermen from carrying out traditional
fishing activities within the territorial sea of Scarborough Shoal."
 No.11 "China's failure to protect and preserve the marine environment at these two shoals [Scarborough Shoal and
Second Thomas Shoal]."
 No.13 Philippines’ protest against China's "purported law enforcement activities as violating the Convention on the
International Regulations for the Prevention of Collisions at Sea and also violating UNCLOS".
The tribunal stated in the award that there are continuing disputes in all of the 15 submissions from the Philippines, [41] but for
submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines prior to the initiation of this arbitration
exist, and that China was not aware of (nor had previously opposed) such claims prior to the initiation of arbitration.
The Chinese Society of International Law (CSIL) has stated that the tribunal was trying to hide its incapability to prove that
maritime entitlements of the nine features constitute the essence of the disputes. [4]
For Submissions No.8 to No.14, the tribunal held the view that the lawfulness of China's maritime activities in the South
China Sea is not related to sovereignty. CSIL has asserted that the disagreements do concern territorial sovereignty, and
constitute no dispute with respect to the claims advanced by the Philippines. [4]

Award[edit]
On 12 July 2016, the Permanent Court of Arbitration published an arbitration award by the tribunal which it states is final and
binding as set out in the Convention.[30][42] Conclusions expressed in the award included the following:
Regarding the "Nine-Dash Line" and China's claim in the maritime areas of the South China Sea [43]

 The [UNCLOS] Convention defines the scope of maritime entitlements in the South China Sea, which may
not extend beyond the limits imposed therein. [44]
 China's claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of
the South China Sea encompassed by the relevant part of the 'nine-dash line' are contrary to the Convention
and without lawful effect to the extent that they exceed the geographic and substantive limits of China's
maritime entitlements under the Convention. The Convention superseded any historic rights or other
sovereign rights or jurisdiction in excess of the limits imposed therein. [45]
Regarding the status of features as above/below water at high tide (Submissions no. 4 and 6)

 High-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e)
McKennan Reef, and (f) Gaven Reef (North).[46]
 Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second
Thomas Shoal.[47]
 Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin Cowe Island,
Gaven Reef (South) lies within 12 nautical miles of the high-tide features at Gaven Reef (North) and Namyit
 Island, and that Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy Cay on the reefs to
the west of Thitu.[48]
Regarding the status of features as rocks/islands (Submissions no. 3, 5, and 7)

 Scarborough Shoal contains, within the meaning of Article 121(1) of the Convention, naturally formed areas of
land, surrounded by water, which are above water at high tide. However, under Article 121(3) of the
Convention, the high-tide features at Scarborough Shoal are rocks that cannot sustain human habitation or
economic life of their own and accordingly shall have no exclusive economic zone or continental shelf. [49]
 Johnson Reef, Cuarteron Reef, and Fiery Cross Reef contain, within the meaning of Article 121(1) of the
Convention, naturally formed areas of land, surrounded by water, which are above water at high tide.
However, for purposes of Article 121(3) of the Convention, the high-tide features at Johnson Reef, Cuarteron
Reef, and Fiery Cross Reef are rocks that cannot sustain human habitation or economic life of their own and
accordingly shall have no exclusive economic zone or continental shelf. [50]
 The high-tide features at Gaven Reef (North) and McKennan Reef are rocks that cannot sustain human
habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental
shelf.[51]
 Mischief Reef and Second Thomas Shoal are both low-tide elevations that generate no maritime zones of
their own [and] that none of the high-tide features in the Spratly Islands are capable of sustaining human
habitation or an economic life of their own within the meaning of those terms in Article 121(3) of the
Convention. All of the high-tide features in the Spratly Islands are therefore legally rocks for purposes of
Article 121(3) and do not generate entitlements to an exclusive economic zone or continental shelf. There is,
accordingly, no possible entitlement by China to any maritime zone in the area of either Mischief Reef or
Second Thomas Shoal and no jurisdictional obstacle to the tribunal's consideration of the Philippines'
Submission No. 5.[52]
 Both Mischief Reef and Second Thomas Shoal are located within 200 nautical miles of the Philippines’ coast
on the island of Palawan and are located in an area that is not overlapped by the entitlements generated by
any maritime feature claimed by China. It follows, therefore, that, as between the Philippines and China,
Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of
the Philippines.[53]
Regarding alleged interference with the Philippines' sovereign rights in its EEZ and continental shelf (Submission
no. 8)

 China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1
to 2 March 2011 breached Article 77 of the Convention with respect to the Philippines' sovereign rights over
the non-living resources of its continental shelf in the area of Reed Bank [and] that China has, by
promulgating its 2012 moratorium on fishing in the South China Sea, without exception for areas of the South
China Sea falling within the exclusive economic zone of the Philippines and without limiting the moratorium to
Chinese flagged vessels, breached Article 56 of the Convention with respect to the Philippines’ sovereign
rights over the living resources of its exclusive economic zone.[54]
Regarding alleged failure to prevent Chinese nationals from exploiting the Philippines' living resources
(Submission no. 9)

 China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due
diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May
2013, failed to exhibit due regard for the Philippines' sovereign rights with respect to fisheries in its exclusive
economic zone. Accordingly, China has breached its obligations under Article 58(3) of the Convention. [55]
Regarding China's actions in respect of traditional fishing at Scarborough Shoal (Submission no. 10)

 China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards,
unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal. [56]
Regarding alleged failure to protect and preserve )the marine environment (Submissions no. 11 and 12(B))

 China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in
harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other
features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention.[57]
 China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North),
Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123,
and 206 of the Convention.[58]
Regarding occupation and construction activities on Mischief Reef (Submission no. 12)
  China has, through its construction of installations and artificial islands at Mischief Reef without the
authorisation of the Philippines, breached Articles 60 and 80 of the Convention with respect to the Philippines'
sovereign rights in its exclusive economic zone and continental shelf [and], as a low-tide elevation, Mischief
Reef is not capable of appropriation.[59]
Regarding operation of law enforcement vessels in a dangerous manner (Submission no. 13)

 China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of Scarborough Shoal,
created serious risk of collision and danger to Philippine vessels and personnel. The Tribunal finds China to
have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence, to be in breach of Article
94 of the Convention.[60]
Regarding aggravation or extension of the dispute between the parties (Submission No. 14)

 China has in the course of these proceedings aggravated and extended the disputes between the Parties
through its dredging, artificial island-building, and construction activities [in several particulars itemized in the
award].[61]
Regarding the future conduct of the parties (Submission no. 15)

 Both Parties are obliged to comply with the Convention, including its provisions regarding the resolution of
disputes, and to respect the rights and freedoms of other States under the Convention. Neither Party contests
this.[62]

The South China Sea has, especially in contemporary times, emerged as a region of great interest
to global players, in terms of strategic and economic interests of the competing States. As
Foreign Policy puts it, “There’s no tenser set of waters in the world than the South China Sea.
For the last few years, China and its neighbors have been bluffing, threatening, cajoling, and
suing for control of its resources.”[2]
To best understand the current situation in the South China Sea from a legal point of view, it is
imperative to refer back to the judgment passed by the Arbitral Tribunal of the Permanent Court
of Arbitration last year, in response to the claims brought by Philippines against China,
primarily regarding maritime rights, entitlements and zones in the South China Sea, as well as
for the protection of the marine life and the environment of the region, under the United
Nations Convention on the Law of the Sea, 1982.
China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’ on its official
maps of the region in question; other stakeholders, however, dispute this claim, as shown in the
arbitral proceedings. As is noted:
… While it was the Philippines which brought the case, it wasn’t the only interested party in the
Asean. Three other members have claims to parts of the South China Sea or the Spratly Islands
or the Paracels that conflict with China’s expansive nine-dash theory: Brunei, Malaysia, and
Vietnam. Indonesia, Asean’s largest economy, has continuing run-ins with Chinese fishing
vessels and occasionally with the Chinese Coast Guard in its exclusive economic zone.[3]
Now, as the Association of South East Nations (ASEAN) heads towards working on the
enforcement of this arbitration award from last year (2016), and attempting to employ a code of
conduct for the South China Sea, it becomes even more important to look at the arbitral ruling
from an objective vantage point.
Case Brief
The South China Sea Arbitration was conducted between the Republic of the Philippines and the
People’s Republic of China by the Permanent Court of Arbitration (PCA), under the 1982 United
Nations Convention on the Law of the Sea (UNCLOS). The arbitration is related to disputes
 between the Parties regarding the legal basis of maritime rights and entitlements, the status of
certain geographic features, and the lawfulness of certain actions taken by China in the South
China Sea; in particular, the following four issues, as raised by Philippines:
1. To resolve a dispute between the parties regarding the source of maritime rights and
entitlements in the South China Sea;
2. To resolve a dispute between the parties concerning the entitlements to maritime zones that
would be generated under the Convention by Scarborough Shoal and certain maritime
features in the Spratly Islands that are claimed by both the parties;
3. To resolve a series of disputes concerning the lawfulness of China’s actions in the South China
Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and preserve the marine
environment, and inflicting harm on the marine environment (through land reclamation and
construction of artificial islands);
4. To find that China has aggravated and extended the disputes between the Parties by
restricting access to a detachment of Philippines Marines stationed at Second Thomas Shoal.
While China and Philippines are both parties to the UNCLOS, China specifically made a
declaration in 2006 to exclude maritime boundary delimitation from its acceptance of
compulsory dispute settlement. In addition, China has shown disagreement with Philippines’
decision to take the matter to arbitration and has decided neither to agree with the decision of
the Tribunal nor to participate in the proceedings.
The Tribunal, on its end, has taken cognizance of these factors and has purported to not deal
with delimiting maritime boundaries. Furthermore, the Tribunal did not bar the proceedings, on
the basis of Article 9 of Annex VII of UNCLOS[4]. In addition, the Tribunal also noted that
despite China’s absence from the proceedings, since it is a party to the UNCLOS, the decision of
the Tribunal would, in fact, be binding upon it, pursuant to Article 296 (1)[5] and Article 11 of
Annex VII[6].
China’s Foreign Ministry, further, stated its position with regard to the proceedings by
publishing a Position Paper in 2014[7]. It claimed that the Tribunal lacks jurisdiction over the
matter because:
1. The essence of the subject-matter of the arbitration is the territorial sovereignty over the
relevant maritime features in the South China Sea;
2. China and the Philippines have agreed, through bilateral instruments and the Declaration on
the Conduct of Parties in the South China Sea, to settle their relevant disputes through
negotiations;
3. Philippines’ disputes would constitute an integral part of maritime delimitation between the
two countries.
The Tribunal considered China’s Position Paper as a plea on jurisdiction, and conducted a
separate hearing on the issue of jurisdiction and admissibility. Additionally, the Tribunal also
declared that it would honour China’s declaration of 2006 and the UNCLOS and would neither
delve into issues of maritime boundary delimitation or questions of sovereignty. The Philippines
also stated that it, “does not seek in this arbitration a determination of which Party enjoys
sovereignty over the islands claimed by both of them. Nor does it request a delimitation of any
maritime boundaries.”[8]
Pursuant to this, the Tribunal issued its Award on Jurisdiction[9] in October 2015, in which it
concluded that it did indeed have jurisdiction in the case, as per Philippines’ Final
Submissions[10], and that China’s lack of participation would not prove to be a bar to its
proceedings. It, further, concluded that the treaties China was relying on were either political in
nature and not legally binding[11], or that they did were legally binding and yet did not bar
either Party from alternative means of dispute resolution[12]. In accordance with Article 283 of
the UNCLOS[13], the Tribunal found that this requirement was met in the diplomatic
communications between the Parties and that Philippines’ initiation of proceedings under the
UNCLOS did not constitute an abuse of of process as claimed by China.
The Tribunal, proceeding with the first two submissions made by the Philippines, considered the
validity of China’s claim to historic rights in the maritime region of the South China Sea and the
‘Nine-Dash Line’. Through a lengthy analysis of the text and context of the Convention, in line
with the principles set out in the Vienna Convention on the Law of Treaties, the Tribunal
established that the Convention supersedes any treaties in force before its coming into force. It
questioned China’s claim to historical rights in the region, and established that China’s state
practice does not show that China had been enjoying any historical rights in the South China
Sea; rather, it was enjoying the freedom of the high seas and since it did not create bar to other
states’ usage of the same, it could not be understood as being a historical right. Furthermore,
since China’s publishing of the same in its Notes Verbales in 2009, many states have objected to
its claim as well. “The Tribunal concludes that the Convention superseded any historic rights or
other sovereign rights or jurisdiction in excess of the limits imposed therein.”[14] However, the
Tribunal also concluded that its jurisdiction was limited to the claims of historic rights on the
maritime region and not to the land masses in the South China Sea, i.e. if it can claim historic
rights on any of the islands, then it may also be able to claim maritime zones (as per the
Convention) on the basis of these islands.
Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature of the
features in the South China Sea. It differentiates between low-tide elevations[15], high-tide
features[16] and rocks[17]. In its Award on Jurisdiction, the Tribunal clarified that:
This is not a dispute concerning sovereignty over the features, notwithstanding any possible
question concerning whether low-tide elevations may be subjected to a claim of territorial
sovereignty. Nor is this a dispute concerning sea boundary delimitation: the status of a feature
as a “low-tide elevation”, “island”, or a “rock” relates to the entitlement to maritime zones
generated by that feature, not to the delimitation of such entitlements in the event that they
overlap.[18]
The Philippines put forward three categories for classifying low-tide elevations: where a low-tide
elevation is located within 12 miles of a high-tide feature[19], where the low-tide elevation is
beyond 12 miles but within the state’s exclusive economic zone or continental shelf[20], and
where the low-tide elevation is located beyond the areas of natural jurisdiction[21].
For the purpose of identifying the nature of the features in the South China Sea, the Tribunal
relied upon satellite imagery that had been conducted on the area and direct surveys that had
been carried out, by navies or otherwise, in the area, and relied upon maps that were sufficiently
detailed. They chose a certain tidal height to maintain uniformity across the features, and
decided to rely, in cases where there had been significant man-made changes, alterations or
construction on the features, upon maps/imagery/surveys that depicted the features as they had
been in their original form.[22]
Again the Tribunal relied upon statements previously made by China to obtain their stance on
the nature of the features, since China had neither submitted any document to the Tribunal nor
had it discussed these in its Position Paper.
The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson
Reef, McKennan Reef and Gaven Reef (North) were all found to be high-tide features. The
Tribunal further noted that for the purposes of Article 121(3), the high-tide features at
Scarborough Shoal and the reefs were rocks that cannot sustain human human habitation or
economic life of their own and so have no exclusive economic zone or continental shelf. The
Tribunal found the same to be true of the Spratly Islands and so concluded that China,
therefore, has no entitlement to any maritime zone in the area of Mischief Reef or Second
Thomas Shoal; they do, however, form part of the exclusive economic zone and continental shelf
of the Philippines as they lie within 200 nautical miles of the Philippines’ coast and there are no
overlapping entitlements in the area with respect to China.
On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and Second
Thomas Shoal were all found to be low-tide elevations, of which Hughes Reef lay within 12 miles
of McKennan Reef and Sin Cowe Island, Gaven Reef (South) lay within 12 miles of Gaven Reef
(North) and Namyit Island, and Subi Reef lay within 12 miles of the high-tide feature of Sandy
Cay on the reefs to the west of Thitu.

In the issue of Chinese interference with the living and non-living resources (primarily
concerned with fishing practices in the South China Sea and oil and gas exploration and
exploitation) of the Philippines, the Tribunal considered diplomatic statements from China to
the Philippines and regulations related to the matter that China had passed domestically. The
Philippines put forward four contentions related to living resources: China’s prevention of
fishing by Philippine vessels at Mischief Reef since 1995, and at Second Thomas Shoal since
1995, China’s revision of the Hainan Regulation[23] and China’s moratorium on fishing in the
South China Sea in 2012[24]. The Tribunal finds that China had breached Articles 77[25] and
56[26] of the Convention through the operation of its marine surveillance vessels (which
interfered with Philippines’ oil and gas exploration) and through its moratorium on fishing
which interfered with the exclusive economic zone of the Philippines, respectively.
The Tribunal also found China in breach of Article 58 (3)[27] of the Convention, due to its
failure to prevent fishing by Chinese flagged ships in the exclusive economic zone of the
Philippines, failing to respect the sovereign rights of the Philippines over its fisheries in its
exclusive economic zone.
Submission 10 of the Philippines related to China’s interference with Philippines’ fishing vessels
and practices in the Scarborough Shoal. While both the states had conflicting views on the
situation (China believed that it was Philippines who was causing the interference) and both
claimed historic rights (Philippines distinguished this by clarifying that it only referred to
historic fishing rights) to the region, the Tribunal opined that China was, in fact, in
contravention of the Convention by interfering with the traditional fishing practice of the
Philippines in its exclusive economic zone through the deployment of its official ships in the
region. The Tribunal also noted that this decision does not depend on the question of
sovereignty, and that the Tribunal once again refrained from commenting on the matter.
Philippines’ successive contention related to China’s activities on the reefs in the South China
Sea, with regards the practices it had adopted for the purpose of large-scale construction and
reclamation at seven locations in the Spratly Islands[28], and its practices with regards to
fishing[29] in the South China Sea. Philippines claimed that China had been harming and
causing damage to the marine environment of the South China Sea through these practices and
despite objections from the surrounding states, China had not ceased its actions. It was also
noted that while some of the fishing ships were not state-appointed ships and were being
manned by non-state actors, the Chinese government had neither condemned their actions nor
made any efforts to stop them from proceeding. The Tribunal, assisted by three independent
experts on coral reef biology, expert briefs and satellite imagery, found that China was in breach
of the Convention for failing to stop the fishing vessels from engaging in harmful harvesting
practices[30] and also for its island-building activities[31]. The Tribunal further opined that
China’s construction on Mischief Reef, without authorization from Philippines was in violation
of Philippines’ sovereign rights in its exclusive economic zone and continental shelf and a breach
of the Convention[32].
The next consideration before the Tribunal was the demeanour of China’s law enforcement
vessels at Scarborough Shoal[33] and the lawfulness of these actions. The Philippines also raised
the issue under the relevant provisions of the Convention on the International Regulations for
Preventing of Collisions at Sea, 1972 (COLREGS). The Tribunal found that China, through the
actions of its law enforcement vessels, endangered Philippine vessels and personnel and created
a serious risk of collision and found China in breach of Article 94 of the Convention[34].
The Tribunal, in response to Submission 14 of the Philippines, opined that China had, in the
course of the proceedings of this arbitration, aggravated and extended its disputes with
Philippines, through its actions of dredging, artificial island-building and construction
activities[35].
Lastly, the Tribunal did not find it necessary to make any further declaration, owing to the fact
that both the parties are already parties to the Convention and are already obliged to comply
with it.