The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China)

By: The Permanent Court of Arbitration
The Hague, The Netherlands

Second part of a series


1.Background to the Arbitration
The South China Sea Arbitration between the Philippines and China concerned an application by thePhilippines for rulings in respect of four matters concerning the relationship between the Philippines andChina in the South China Sea. First, the Philippines sought a ruling on the source of the Parties’ rights andobligations in the South China Sea and the effect of the United Nations Convention on the Law of the Sea(“Convention”) on China’s claims to historic rights within its so-called ‘nine-dash line’. Second, thePhilippines sought a ruling on whether certain maritime features claimed by both China and the Philippinesare properly characterized as islands, rocks, low-tide elevations or submerged banks under the Convention.The status of these features under the Convention determines the maritime zones they are capable ofgenerating. Third, the Philippines sought rulings on whether certain Chinese actions in the South China Seahave violated the Convention, by interfering with the exercise of the Philippines’ sovereign rights andfreedoms under the Convention or through construction and fishing activities that have harmed the marineenvironment. Finally, the Philippines sought a ruling that certain actions taken by China, in particular itslarge-scale land reclamation and construction of artificial islands in the Spratly Islands since this arbitrationwas commenced, have unlawfully aggravated and extended the Parties’ dispute.

The Chinese Government has adhered to the position of neither accepting nor participating in these arbitralproceedings. It has reiterated this position in diplomatic notes, in the “Position Paper of the Government ofthe People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated bythe Republic of the Philippines” dated 7 December 2014 (“China’s Position Paper”), in letters to membersof the Tribunal from the Chinese Ambassador to the Kingdom of the Netherlands, and in many publicstatements. The Chinese Government has also made clear that these statements and documents “shall by nomeans be interpreted as China’s participation in the arbitral proceeding in any form.”

Two provisions of the Convention address the situation of a party that objects to the jurisdiction of a tribunaland declines to participate in the proceedings:

(a)Article 288 of the Convention provides that: “In the event of a dispute as to whether a court ortribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal.”

(b)Article 9 of Annex VII to the Convention provides that:If one of the parties to the dispute does not appear before the arbitral tribunal or fails todefend its case, the other party may request the tribunal to continue the proceedings and tomake its award. Absence of a party or failure of a party to defend its case shall notconstitute a bar to the proceedings. Before making its award, the arbitral tribunal mustsatisfy itself not only that it has jurisdiction over the dispute but also that the claim is wellfounded in fact and law.

Throughout these proceedings, the Tribunal has taken a number of steps to fulfil its duty to satisfy itself as towhether it has jurisdiction and whether the Philippines’ claims are “well founded in fact and law”. Withrespect to jurisdiction, the Tribunal decided to treat China’s informal communications as equivalent to anobjection to jurisdiction, convened a Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015,questioned the Philippines both before and during the hearing on matters of jurisdiction, including potentialissues not raised in China’s informal communications, and issued an Award on Jurisdiction andAdmissibility on 29 October 2015 (the “Award on Jurisdiction”), deciding some issues of jurisdiction anddeferring others for further consideration in conjunction with the merits of the Philippines’ claims. Withrespect to the merits, the Tribunal sought to test the accuracy of the Philippines’ claims by requesting furtherwritten submissions from the Philippines, by convening a hearing on the merits from 24 to 30 November2015, by questioning the Philippines both before and during the hearing with respect to its claims, byappointing independent experts to report to the Tribunal on technical matters, and by obtaining historicalrecords and hydrographic survey data for the South China Sea from the archives of the United KingdomHydrographic Office, the National Library of France, and the French National Overseas Archives andproviding it to the Parties for comment, along with other relevant materials in the public domain.

2. The Parties’ Positions
The Philippines made 15 Submissions in these proceedings, requesting the Tribunal to find that:

1. China’s maritime entitlements in the South China Sea, like those of the Philippines, may notextend beyond those expressly permitted by the United Nations Convention on the Law of the Sea;

2. China’s claims to sovereign rights jurisdiction, and to “historic rights”, with respect to themaritime areas of the South China Sea encompassed by the so-called “nine-dash line” are contraryto the Convention and without lawful effect to the extent that they exceed the geographic andsubstantive limits of China’s maritime entitlements expressly permitted by UNCLOS;

3. Scarborough Shoal generates no entitlement to an exclusive economic zone or continental shelf;

4. Mischief Reef, Second Thomas Shoal, and Subi Reef are low-tide elevations that do not generateentitlement to a territorial sea, exclusive economic zone or continental shelf, and are not featuresthat are capable of appropriation by occupation or otherwise;

5. Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and continentalshelf of the Philippines;

6. Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do notgenerate entitlement to a territorial sea, exclusive economic zone or continental shelf, but theirlow-water line may be used to determine the baseline from which the breadth of the territorial seaof Namyit and Sin Cowe, respectively, is measured;

7. Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an exclusiveeconomic zone or continental shelf;

8. China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of thePhilippines with respect to the living and non-living resources of its exclusive economic zone andcontinental shelf;

9. China has unlawfully failed to prevent its nationals and vessels from exploiting the livingresources in the exclusive economic zone of the Philippines;

10. China has unlawfully prevented Philippine fishermen from pursuing their livelihoods byinterfering with traditional fishing activities at Scarborough Shoal;

11. China has violated its obligations under the Convention to protect and preserve the marineenvironment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef,Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef;

12. China’s occupation of and construction activities on Mischief Reef

(a)violate the provisions of the Convention concerning artificial islands, installations andstructures;

(b)violate China’s duties to protect and preserve the marine environment under theConvention; and

(c)constitute unlawful acts of attempted appropriation in violation of the Convention;

13. China has breached its obligations under the Convention by operating its law enforcement vesselsin a dangerous manner, causing serious risk of collision to Philippine vessels navigating in thevicinity of Scarborough Shoal;

14. Since the commencement of this arbitration in January 2013, China has unlawfully aggravated andextended the dispute by, among other things:

(a)interfering with the Philippines’ rights of navigation in the waters at, and adjacent to,Second Thomas Shoal;

(b)preventing the rotation and resupply of Philippine personnel stationed at Second ThomasShoal;

(c)endangering the health and well-being of Philippine personnel stationed at Second ThomasShoal; and

(d)conducting dredging, artificial island-building and construction activities at Mischief Reef,Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef; and

15. China shall respect the rights and freedoms of the Philippines under the Convention, shall complywith its duties under the Convention, including those relevant to the protection and preservation ofthe marine environment in the South China Sea, and shall exercise its rights and freedoms in theSouth China Sea with due regard to those of the Philippines under the Convention.

With respect to jurisdiction, the Philippines has asked the Tribunal to declare that the Philippines’ claims“are entirely within its jurisdiction and are fully admissible.”

China does not accept and is not participating in this arbitration but stated its position that the Tribunal “doesnot have jurisdiction over this case.” In its Position Paper, China advanced the following arguments:

-The essence of the subject-matter of the arbitration is the territorial sovereignty over severalmaritime features in the South China Sea, which is beyond the scope of the Convention and doesnot concern the interpretation or application of the Convention;

-China and the Philippines have agreed, through bilateral instruments and the Declaration on theConduct of Parties in the South China Sea, to settle their relevant disputes through negotiations.By unilaterally initiating the present arbitration, the Philippines has breached its obligation underinternational law;

-Even assuming, arguendo, that the subject-matter of the arbitration were concerned with theinterpretation or application of the Convention, that subject-matter would constitute an integralpart of maritime delimitation between the two countries, thus falling within the scope of thedeclaration filed by China in 2006 in accordance with the Convention, which excludes, inter alia,disputes concerning maritime delimitation from compulsory arbitration and other compulsorydispute settlement procedures;

Although China has not made equivalent public statements with respect to the merits of the majority of thePhilippines’ claims, the Tribunal has sought throughout the proceedings to ascertain China’s position on thebasis of its contemporaneous public statements and diplomatic correspondence.

-to be continued-


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