A Gist On The Philippines Memorial against China

The Philippines is confident that China's non-appearance and non-participation does not
bar the arbitration. An applicant-State's right to unilaterally bring a dispute to arbitration over the
defending-State's objections was also expressly recognized in the Barbados case.
Simply stating that a decision on sovereignty is not sought, or that boundaries need not be
delimited, will not be enough: the tribunal needs to be absolutely convinced that these are not
necessary to the resolution of the issues under arbitration. These may be addressed by zeroing in
on the principal source of the disputes, which is the Nine Dashed Lines.
The Nine Dashed Lines represent China's claim to certain amorphous rights
characterized as such because they have not had any clear substantive basis for decades within
a vast expanse of the South China Sea. It is this lack of clarity that has been China's main refuge
for attempting to reserve and assert its claims anywhere within this large body of water.
Since 1947, China's diplomatic communications described its claim as sovereignty over
the islands and insular features, not the entirety, of the South China Sea. Mainland China never
took action to assert this amorphous claim, although Taiwan independently took control of the
largest island, Itu Aba. Neither the mainland nor Taiwan explained the basis or substance of the
claim, but among Chinese scholars and policy advocates, the explanation of the Nine Dashed
Lines is split into four:

It represented a claim to sovereignty over only the islands (not waters) within the
lines.

It was a claim to sovereignty over islands and UNCLOS-based jurisdictions over

the enclosed waters.

It represented a line of historic rights to fishing.

It represented a historic territorial boundary line.

Lack of clarity on the real nature of the Nine Dashed Lines allowed China's actions to be
sheltered within the plausible limits of interpretation under UNCLOS. This policy of ambiguity
prevailed until sometime around 2008-2009, when China became increasingly assertive in its
maritime policies and enforcement activities in the aftermath of the Vietnamese and Malaysian
claims to the seabed beyond 200 nautical miles in the South China Sea, in accordance with
UNCLOS.
Chinas actions inevitably led to conflict, as the Nine Dashed Lines effectively deprived
other countries around the South China Sea of their own exclusive economic zones (EEZs) and
continental shelf under UNCLOS. Not only did China begin sending its law enforcement vessels
to protect Chinese fishing operations inside the EEZs of Vietnam, Indonesia, Malaysia, and the
Philippines, it also began actively interfering with their long-standing petroleum exploration
activities. Chinese ships cut the seismic exploration cables of Vietnamese survey ships, and
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threatened the operations of Philippine vessels off Reed Bank. China also protested Philippine
petroleum contracts and bidding processes for concession areas on the Philippine continental
shelf off Palawan.
These acts were undertaken in places where they could not be justifiable unless China
was claiming to exercise absolute sovereignty over the entire area of the Nine Dashed Lines,
which was inconsistent with its previous public positions.
China's diplomatic language also increasingly bent toward claiming absolute sovereignty
on the basis of history, not international law. However, this flies in the face of both UNCLOS,
which establishes the system of maritime zones globally, and customary international law, which
has consistently held for hundreds of years that no State can place any portion of the high seas
under its sovereignty.
Article 76 as Basis for the Philippine Claim on Spratly
As mans technology enabled him to exploit the historically inaccessible seabed and
subsoil lying beyond the territorial sea, so did the interests of States to appropriate for themselves
these areas rich with minerals and other resources. The need to regulate this once invisible realm
of humanity can be traced back to the continental shelf doctrine proclaimed by U.S. President
Harry Truman in 1945, where he pronounced the US governments claim of sovereignty to the
natural resources and sea bed of the continental shelf beneath the high sea but contiguous to the
coast of the United Sates.
Trumans proclamation started the flow of customary international law on the continental
shelf that was officially recognized by the international community in the 1958 Convention on
the continental shelf and in the 1969 North Sea Continental Shelf Cases as well as the 1978
Aegean Sea Continental Shelf Cases all decided by the International Court of Justice (ICJ). In
fact, the ICJ had the occasion to assert the customary nature of the doctrines governing the
continental shelf. The ICJ stated:
For to become binding, a rule or principle of international law need not pass the test of
universal acceptance. This is reflected in several statements of the Court, e.g.: generally
adopted in the practice of States (Fisheries, Judgment, I.C.J. Reports 1951, p. 128). Not all
States have, as I indicated earlier in a different context, an opportunity or possibility of applying
a given rule. The evidence should be sought in the behavior of a great number of States, possibly
the majority of States, in any case the great majority of the interested States.
Hence, Articles 76 to 84 of UNCLOS embodied the customary international law pertinent
to the determination of the validity of States claims over its continental shelf. The pertinent
provisions of UNCLOS now prevail over the 1958 Convention on the Continental Shelf.

Top 3 Philippines bases of claim in the Spratlys

1.

200 Nautical Mile Exclusive Economic Zone (UNCLOS)

2.
The Spratlys Archipelago is very close to the Philippines in less than 200 Nautical
miles compare to Vietnam and China
3.
The historical rights as the ancestral domain of the Sultanate of Sulu date backs
from the Mahjapahit and Shrivijaya empires, which extended from Sabah (North Borneo), the
Sulu archipelago, Palawan, parts of Mindanao, the islands now known as the Spratlys, Palawan,
and up to the Visayas and Manila.
The Philippines claims over parts of the West Philippine Sea, including the Spratlys,
were based on international law, specifically UNCLOS. Even though the Philippines could also
use the historical rights like based on the ancestral domain of Sultanate of Sulu date backs from
the Mahjapahit and Shrivijaya empires, which extended from Sabah (North Borneo), the Sulu
archipelago, Palawan, parts of Mindanao, the islands now known as the Spratlys, Palawan, and
up to the Visayas and Manila but the Philippines did not use such claim as it is not recognized by
the UNCLOS.
Chinese officials, however, said their claims were based on historic rights.
The Philippines claims 52 features in the Spratly Island group. Among these, the
Philippines was only able to occupy 7 islands and 2 reefs. These include Thitu (Pagasa) island
(2nd largest), West York (Likas) island (3rd largest), Northeast (Parola) cay (5th largest),
Nanshan (Lawak) island, Loaita (Kota) island, Flat (Spratly) (Patag) island, Lankiam (Panata)
cay, Commodore (Rizal) reef, Irving (Balagtas) reef and Second Thomas (Ayungin) reef. Other
features claimed by the Philippines are either occupied by Vietnam, China, Taiwan or Malaysia
or unoccupied by any other countries. Parts of the Spratly Islands group that are not claimed by
the Philippines are those that are near to Vietnam. The farthest feature that it claims is Ladd Reef
which is nearer to and occupied by Vietnam.
The Philippines established a municipality named Kalayaan under the province of
Palawan for all the features that it occupies Pag-asa island.
The Scarborough Shoal, more correctly described as a group of islands, atolls, and reefs
than a shoal, is located in the South China Sea. The nearest landmass is Palauig town, Zambales
province, Luzon Island, at 221 kilometers. It is about 123 miles west of but the Subic Bay.

The Philippines is asserting jurisdiction over the shoal based on the juridical criteria
established by public international law on the lawful methods for the acquisition of sovereignty.
Among the criteria (effective occupation, cession, prescription, conquest, and accretion), the
Philippines said that the country "exercised both effective occupation and effective jurisdiction
over Bajo de Masinloc since its independence." Thus, it claims to have erected flags in some
islands and a lighthouse which it reported to the International Maritime Organization. It also
asserts that the Philippine and US Naval Forces have used it as impact range and that its
Department of Environment and Natural Resources has conducted scientific, topographic and
marine studies in the shoal, while Filipino fishermen regularly use it as fishing ground and have
always considered it their own. Likewise, multiple engagements and arrests of Chinese
fishermen were already made at the shoal by the Philippine Navy for using illegal fishing
methods and catching of endangered sea species.
The legal basis of the Philippine assertion is based on the international law on acquisition
of sovereignty. Thus, the Philippine government explains that its Exclusive Economic Zone
(EEZ) claim on the waters around Scarborough Shoal is different from the sovereignty exercised
by the Philippines in the shoal itself.
The Chinese basis for claim is that the shoal would have been first discovered by Chinese
in the 13th century and historically used by Chinese fishermen. Although a claim to sovereignty
would require a deeper understanding then discovery and resource use.