The South China Sea Arbitration

PCA Case No. 2013-19 11 July 2016 Mensah, T.

Art. II – Legal Value
CLAIMANTS RESPONDENTS
The Republic of Philippines (State) The People’s Republic of China (State)
SUMMARY
The Philippines raised an arbitral proceeding against China and case was handled by
the Permanent Court of Arbitration. Although China did not participate in the
proceedings, the tribunal, based on the UNCLOS, pushed through with the case. The
Philippines raised 15 submissions involving China and certain issues on violation of
the UNCLOS. These submissions revolve around rights to maritime areas, contested
overlapping EEZ zones, fishing and exploration rights of the Philippines, China’s
violation of environmental obligations, China’s construction of artificial islands, risk of
collision caused by China’s law enforcement vessels to name a few. The Award was
unanimously given and favored most of the Philippines submissions. The tribunal,
heavily relied on the provisions of UNCLOS, due to many compelling reasons: the
parties involved both signed in the convention thus bounded to what is stipulated, that
the UNCLOS supersedes any treaties in force before its coming into force. China, in
it’s no acceptance, no participation, no recognition, and no implementation approach
to the arbitration does not recognize the award given by the tribunal while The
Philippines strongly affirms its respect for this milestone decision as an important
contribution to ongoing efforts in addressing disputes in the South China Sea.
FACTS
On January 22, 2013, the Republic of the Philippines instituted arbitral proceedings
against the People's Republic of China.

Philippines and China are both parties to United Nations, thus the dispute settlement
procedure was based on Annex VII of the 1982 United Nations Convention on the
Law of the Sea (UNCLOS). Moreover, as implied in Article 287 of UNCLOS, it is
prescribed that the arbitration be handled by the Permanent Court of Arbitration
(PCA) given that China adopted a position of non-acceptance and non-participation in
the proceedings and no settlement is achieved between the parties.

Despite China’s absence from the actual proceedings, Article 9 of Annex VII of
UNCLOS supports that the proceedings shall not be barred.

The Philippines raised a total of 15 submissions which can be categorized into main
issues concerning about historic rights and the source of maritime entitlements in the
South China Sea, the status of certain maritime features in the South China Sea, and
the lawfulness of certain actions by China in the South China Sea that the Philippines
alleged to be in violation of the Convention.

Proceedings commenced on January 21, 2013 and issuance of final award (decision)
was released on July 11, 2016.
ISSUES RULING
1. Whether or not China’s claims
based on any “historic rights” to YES
waters, seabed, and subsoil within
the “nine-dash line” are contrary to
UNCLOS and invalid.
NO
2. Whether or not the Spratly Islands
generates Exclusive Economic
Zone which in turn may cause
overlap between Philippines and
China’s EEZ giving the latter
possible entitlement.

3. Whether or not China has YES

interfered with and violated the
Philippines’ exercise of sovereign
rights over living and non-living
resources within the latter’s EEZ
and continental shelf

4. Whether or not the demeanor of YES

China’s law enforcement vessels
at Scarborough Shoal violated
UNCLOS and endangered
Philippine vessels and personnel
and created a serious risk of
collision
RATIONALE
1. UNCLOS “comprehensively” governs the parties’ (PH and CH) respective
rights to maritime areas in the South China Sea. Therefore, to the extent
China’s nine-dash line is a claim of “historic rights” to the waters of the South
China Sea, it is invalid. 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. Whatever historic rights China may
have had were extinguished when UNCLOS was adopted, to the extent those
rights were incompatible with UNCLOS.
2. None of the features in the Spratly Islands generates an EEZ, nor can the
Spratly Islands generate an EEZ collectively as a unit. As such, the Tribunal
declared certain areas are within the Philippines’ EEZ and not overlapped by
any possible Chinese entitlement. 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.
3. The Tribunal finds that China had breached Articles 7 and 56 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. China violated the Philippines’ sovereign rights in its EEZ. It did
so by interfering with Philippine fishing and hydrocarbon exploration;
constructing artificial islands; and failing to prevent Chinese fishermen from
fishing in the Philippines’ EEZ. China also interfered with Philippine fishermen’s
traditional fishing rights near Scarborough Shoal. China’s construction of
artificial islands at seven features in the Spratly Islands, as well as illegal
fishing and harvesting by Chinese nationals, violate UNCLOS obligations to
protect the marine environment. Finally, Chinese law enforcement vessels
unlawfully created a serious risk of collision by physically obstructing Philippine
vessels at Scarborough Shoal in 2012.
4. 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.
Chinese law enforcement vessels violated maritime safety obligations by
 creating a serious risk of collision on two occasions in April and May 2012
during the Scarborough Shoal standoff. The Tribunal also added that China
had breached its obligations under the Convention on the International
Regulations for Preventing Collisions at Sea, 1972 (COLREGS).
Disposition
The Unanimous Award of the Permanent Court of Arbitration ruled affirmative on the
Republic of the Philippines’ disputes. (excluding certain submissions***)

Related/Cited Provisions:
Article 287 – UNCLOS:Choice of procedure
1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State
shall be free to choose, by means of a written declaration, one or more of the following means
for the settlement of disputes concerning the interpretation or application of this Convention:
(a) the International Tribunal for the Law of the Sea established in accordance with Annex
VI;
(b) the International Court of Justice;
(c) an arbitral tribunal constituted in accordance with Annex VII;
(d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of
the categories of disputes specified therein.

Article 9 Annex VII – UNCLOS: Default of appearance

If one of the parties to the dispute does not appear before the arbitral tribunal or fails to defend
its case, the other party may request the tribunal to continue the proceedings and to make its
award. Absence of a party or failure of a party to defend its case shall not constitute a bar to the
proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has
jurisdiction over the dispute but also that the claim is well founded in fact and law.

Article 121 UNCLOS: Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at
high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf of an island are determined in accordance with the
provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.

Article 77 UNCLOS: Rights of the coastal State over the continental shelf
 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources.

2. The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does
not explore the continental shelf or exploit its natural resources, no one may undertake these
activities without the express consent of the coastal State.

3. The rights of the coastal State over the continental shelf do not depend on occupation,
effective or notional, or on any express proclamation.

4. The natural resources referred to in this Part consist of the mineral and other non-living
resources of the seabed and subsoil together with living organisms belonging to sedentary
species, that is to say, organisms which, at the harvestable stage, either are immobile on or
under the seabed or are unable to move except in constant physical contact with the seabed or
the subsoil.

Article 94 UNCLOSE: Duties of the flag State

1. Every State shall effectively exercise its jurisdiction and control in administrative, technical
and social matters over ships flying its flag.

2. In particular every State shall: (a) maintain a register of ships containing the names and
particulars of ships flying its flag, except those which are excluded from generally accepted
international regulations on account of their small size; and (b) assume jurisdiction under its
internal law over each ship flying its flag and its master, officers and crew in respect of
administrative, technical and social matters concerning the ship. 3. Every State shall take such
measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia,
to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour
conditions and the training of crews, taking into account the applicable international instruments;
(c) the use of signals, the maintenance of communications and the prevention of collisions.

4. Such measures shall include those necessary to ensure: 59 (a) that each ship, before
registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships,
and has on board such charts, nautical publications and navigational equipment and
instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the
charge of a master and officers who possess appropriate qualifications, in particular in
seamanship, navigation, communications and marine engineering, and that the crew is
appropriate in qualification and numbers for the type, size, machinery and equipment of the
ship; (c) that the master, officers and, to the extent appropriate, the crew are fully conversant
with and required to observe the applicable international regulations concerning the safety of life
at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and
the maintenance of communications by radio.

5. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to
generally accepted international regulations, procedures and practices and to take any steps
which may be necessary to secure their observance.

6. A State which has clear grounds to believe that proper jurisdiction and control with respect to
a ship have not been exercised may report the facts to the flag State. Upon receiving such a
report, the flag State shall investigate the matter and, if appropriate, take any action necessary
to remedy the situation.

7. Each State shall cause an inquiry to be held by or before a suitably qualified person or
persons into every marine casualty or incident of navigation on the high seas involving a ship
flying its flag and causing loss of life or serious injury to nationals of another State or serious
damage to ships or installations of another State or to the marine environment. The flag State
and the other State shall cooperate in the conduct of any inquiry held by that other State into
any such marine casualty or incident of navigation.

*** Gaven Reef and McKennan Reef (including Hughes Reef) are LTEs that generate no
maritime entitlements, but may be used to determine baselines to measure territorial sea. – NO.
Both Gaven and McKennan Reef are above water at high tide; they are rocks that generate
territorial seas but no EEZ or continental shelf.