Philippines v.

China
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The Republic of the Philippines v. The
Peoples Republic of China

Logo of the United Nations Convention on the

Law of the Sea (UNCLOS)

Court

An arbitral tribunal constituted

under Annex VII to the 1982 United
Nations Convention on Law of the
Sea

An Arbitration before an arbitral

tribunal constituted under Annex
VII to the 1982 United Nations
Full case
Convention on Law of the Sea
name
between the Republic of the
Philippines and the People's
Republic of China
Decided

July 12, 2016

Transcrip
https://pcacases.com/web/view/7
t(s)
Ruling
"Chinas 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 ninedash line are contrary to the Convention and
without lawful effect"[2]
Court membership
Judges
sitting

Presiding Arbitrator:[3]
Thomas A. Mensah

Members:
Jean-Pierre Cot
Rdiger Wolfrum
Alfred H. Soons
Stanislaw Pawlak

China's nine-dotted line claim over the South China Sea, 1947
Philippines v. China (201319, also known as The South China Sea
Arbitration) was an arbitration case brought by the Republic of the Philippines at
the Permanent Court of Arbitration (PCA) in Hague, under the provisions of the
United Nations Convention on the Law of the Sea (UNCLOS)[4][5][6] against the
People's Republic of China concerning certain issues in the South China Sea[7]
including the legality of China's "nine-dotted line" claim over the South China Sea
under the UNCLOS.
On 19 February 2013, China officially refused to participate in the arbitration. [8] On 7
December 2014, a position paper was published by China to elaborate its position. [7]
[9]
On 29 October 2015, the arbitral tribunal ruled that it has jurisdiction over the
case,[10] taking up seven of the 15 submissions made by the Philippines. [11]
On 12 July 2016, the tribunal ruled in favor of the Philippines in seven of the
Philippines' submissions. It also ruled that it could not make a decision in seven of
the submissions, and asked the Philippines to clarify and narrow one of its
submissions. It also clarified that it would not "...rule on any question of sovereignty
over land territory and would not delimit any maritime boundary between the
Parties".[12][13] The tribunal ruled that China has "no historical rights" based on the
"nine-dash line" map.[12][13]
China has rejected the ruling, as has Taiwan. [14][15] The United Nations holds no
position on the case, and the International Court of Justice has had no involvement.

Background
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Main article: Territorial disputes in the South China Sea
See also: Nine-dash line

Territorial claims in the South China Sea

The dispute has been affected by the fact that, after Japan renounced 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
September 8, 1951, it did not indicate successor states [16] 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, reitirating 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". [17]
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."[17]
The Philippines bases its claim on its geographical proximity to the Spratly Islands.
[18]

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.[19] 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 Oct 2nd 1956, he
wrote a letter and ensured he would not make further training voyages or landings
in the territorial waters of China (ROC).[20]
Philippine troops were sent to three of the islands in 1968, [19] when the Philippines
were under President Ferdinand Marcos. In the 1970s, some countries began to
invade and occupy islands and reefs in the Spratlys. [21][22] The Spratlys were placed
under the jurisdiction of the province of Palawan in 1978. [19]
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.[18] China and
Taiwan have these same territorial claims.[18] The Republic of China (Taiwan) took
control of the largest island - Taiping Island - in the group since 1946.[19]
Vietnam states that the islands have belonged to it since the 17th century, using
historical documents of ownership as evidence. [18] Hanoi began to occupy the
westernmost islands during this period.[18]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.
[23]

Brunei also extended its exclusive economic zone, claiming Louisa Reef.[23]
Optional exceptions to applicability of compulsory procedure
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.[24][25]
Participants
The arbitration involved the Philippines and China. [26]
Philippine stance

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.[27] 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.[28]
Chinese stance
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.[29][30][31] 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.[32] Its refusal will not prevent the PCA tribunal
from proceeding with the case.[33] 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". [34]
Claimants of the South China Sea
Taiwanese stance
The arbitral tribunal has not invited Taiwan to join the arbitration, and no opinion of
Taiwan has been sought.[35] The Philippines claimed that Taiping Island is a rock. In
response,[36] President Ma Ying-jeou of Taiwan rejected the Philippines' claim as
"patently false".[37] 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.[38]
Vietnamese stance
On December 11, 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.[39]
Other stances
Brunei sent its own UNCLOS claim through a preliminary submission prior to the
arbitration.[40] 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.[41]
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.[41][42]
Arbitration
Hearings
On July 7, 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.[10] 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.[43]
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." [11]
The arbitral tribunal scheduled the hearing on merits of the case from 24 to 30
November 2015.[44]
Award on Jurisdiction and Admissibility
On 29 October 2015, the PCA published the award by the tribunal on Jurisdiction
and Admissibility[45] for the case. The tribunal found that it has jurisdiction to
consider the following seven Philippines Submissions. The number is the
Philippines Submissions number. The tribunal reserved consideration of its
jurisdiction to rule on No. 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 Chinas failure to protect and preserve the marine environment at

these two shoals [Scarborough Shoal and Second Thomas Shoal].

No.13 Philippines protest against Chinas 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 disputes in all of the 15 submissions
from the Philippines,[45] 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 arbitration exist, and
China was not aware or opposed such claims prior to the initiation of arbitration.
Chinese Society of International Law (CSIL) states that the tribunal was trying to
hide its incapability to prove that maritime entitlements of the nine features
constitute the disputes.[7]
For Submission No.8 to No.14, the tribunal held the view that lawfulness of China's
activities in the South China Sea is not related to sovereignty. CSIL has asserted that
disagreements concern territorial sovereignty, and constitute no dispute with
respect to the claims advanced by the Philippines. [7]
Award
On July 12, 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. [34][46]
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[1]

The [UNCLOS] Convention defines the scope of maritime entitlements in the

South China Sea, which may not extend beyond the limits imposed therein. [47]

Chinas 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 Chinas maritime entitlements under the Convention.
The Convention superseded any historic rights or other sovereign rights or
jurisdiction in excess of the limits imposed therein. [48]

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). [49]

Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef,
(d) Mischief Reef, (e) Second Thomas Shoal. [50]

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. [51]
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.[52]

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. [53]

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. [54]

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 tribunals consideration of the Philippines Submission No. 5.
[55]

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. [56]

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.[57]
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. [58]

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. [59]

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.[60]

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.[61]

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. [62]

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.[63]

Regarding aggravation or extension of the dispute between the parties (Submission

No. 19)

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]. [64]

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. [65]

Timeline

January 22, 2013 Philippines served China with notification and Statement
of Claim[66]

February 19, 2013 China rejected the Philippines Notification

July 11, 2013 First meeting of the arbitral tribunal at The Hague

July 31, 2013 Philippines commented on draft Rules of Procedure for the
Tribunal

August 1, 2013 China indicated that it does not accept the arbitration
initiated by the Philippines

August 27, 2013 Procedural Order No 1 issued via PCA Press Release on
behalf of the arbitral tribunal[67]

March 30, 2014 Submission of the Philippines Memorial

May 1415, 2014 Second meeting of the arbitral tribunal at The Hague

May 21, 2014 China comments on draft Procedural Order No 2 and observes
that it does not accept the arbitration initiated by the Philippines.

May 29, 2014 Philippines comments on draft Procedural Order No 2

June 3, 2014 Procedural Order No 2 issued via PCA Press Release on behalf
of the arbitral tribunal[68]

December 15, 2014 China had not filed a Counter-Memorial [69]

December 17, 2014 Procedural Order No 3 issued via PCA Press Release on
behalf of the arbitral tribunal[69]

March 16, 2015 The Philippines made a Supplemental Written Submission to

the Arbitral Tribunal[70]

April 2021, 2015 Third meeting of the arbitral tribunal at The Hague [70]

April 22, 2015 Procedural Order No 4 issued via PCA Press Release on behalf
of the arbitral tribunal[70]

July 713, 2015 Hearing of the arbitral tribunal at The Hague [71][72]

October 29, 2015 PCA issued the Award on jurisdiction and admissibility [45]

July 12, 2016 - The tribunal of PCA gave a verdict claiming that China has no
legal basis or historic claim on the Nine-dash line. China rejected the ruling.