South China Sea Arbitration.docx

SOUTH CHINA SEA ARBITRATION (PCA Case Number 2013–19) Between The Republic of the Philippines and The People’s Republic of China Before An Arbitral Tribunal Constituted Under Annex VII to the United Nations Convention on the Law of the Sea 1982 Registry: Permanent Court of Arbitration Date of Award: 12 July 2016 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-àvis 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; 1

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.

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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 islandbuilding 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. [4] “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.”

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[5] “Any decision rendered by a court or tribunal having jurisdiction under this section shall be final and shall be complied with by all the parties to the dispute.” [6] “The award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute.” [8] P. 11 – 12, Permanent Court of Arbitration’s Award on the South China Sea Arbitration [9] Available at: http://www.pcacases.com/web/sendAttach/1506; A summarized form can be found at para 164 of the Permanent Court of Arbitration’s Award on the South China Sea Arbitration [10] Para 112, Permanent Court of Arbitration’s Award on the South China Sea Arbitration [11] The China-ASEAN Declaration on the Conduct of the Parties in the South China Sea 2002 [12] Treaty of Amity and Cooperation in Southeast Asia; Convention on Biological Diversity [13] This article deals with the Parties’ obligations to “exchange views regarding [the dispute’s] settlement by negotiation or other peaceful means.” [14] Para. 278, Permanent Court of Arbitration’s Award on the South China Sea Arbitration [15] A feature that is exposed at low tide, but covered with water at high tide; low-tide elevations do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf. [16] Features that are above water at high tide; of these, those features that have the capacity to sustain human habitation or economic life of their own are referred to as islands. [17] High tide features that cannot sustain human or economic life of their own; rocks do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf. [18] Para. 403, Permanent Court of Arbitration’s Award on Jurisdiction [19] Sovereignty of this elevation rests with the State by virtue of its sovereignty over the high-tide feature. [20] Exclusive sovereign rights and jurisdiction lie with the coastal state. [21] These elevations are part of the deep seabed and no state can claim sovereignty over the same. [22] This was in line with the Convention which deals only with ‘naturally formed’ features, as per its Article 13. [23] Since 2012, China considers the Spratly and Paracel Islands, as well as the Scarborough Shoal, to be part of the Hainan Province; despite repeated requests from the Philippines, China never clarified the status of the Hainan Regulation. [24] The moratorium was placed by China in the area north of the 12°N latitude, was applicable to foreign ships as well and was, as China claimed, in an effort to rehabilitate the area’s marine resources. 4

[25] Rights of the coastal state over the continental shelf [26] Rights, jurisdiction and duties of the coastal state in the exclusive economic zone [27] Rights and duties of other states in the exclusive economic zone [28] These practices were found to cause extensive damage to the coral reef environment. [29] This includes China’s activities of using propellers to break up coral, fishing for endangered turtles and using poaching practices. [30] Articles 192 and 194(5) of UNCLOS [31] Articles 192, 194(1), 194(5), 197, 123 and 206 of UNCLOS [32] Articles 60 and 80 of UNCLOS [33] Especially in 2012 when these vessels physically obstructed Philippine vessels from approaching the Shoal. [34] Duties of the flag state. [35] See Para. 1181 of the Permanent Court of Arbitration’s Award on the South China Sea Arbitration EXPLAINER: Philippines' 5 Arguments VS China MANILA, Philippines – The Philippines' case against China over the West Philippine Sea (South China Sea) boils down to 5 basic arguments. Philippine Foreign Secretary Albert del Rosario outlined these claims on Tuesday, July 7, the first day of arguments at The Hague. (READ: Philippines vows to smash China's strongest argument) For the oral hearings that run until July 13, we've listed these 5 arguments, quoted verbatim from Del Rosario. Below each argument, we've added our own notes to explain things in a nutshell. We've also included links to other stories for further reading and reference. The Philippines' arguments revolve around the right to fish, as well as to exploit other resources, in the West Philippine Sea. (READ: PH vs China at The Hague: '80% of fish' at stake) This right is based on the so-called Constitution for the Oceans, the United Nations Convention on the Law of the Sea (UNCLOS). Under UNCLOS, a coastal state has the exclusive right to fish within its exclusive economic zone (EEZ), an area 200 nautical miles from the coastal state's baselines or edges. 1. China's 'historical rights' ARGUMENT: "First, that China is not entitled to exercise what it refers to as 'historic rights' over the waters, seabed, and subsoil beyond the limits of its entitlements under the Convention." EXPLANATION: China says the South China Sea has belonged to it for centuries. This is why it claims "historical rights" over the disputed sea. Senior Associate Justice Antonio Carpio of the Philippine Supreme Court, however, says that "even if true," these historical rights have no bearing on sea disputes under UNCLOS. Carpio explains that UNCLOS 5

"extinguished all historical rights of other states." This UN convention instead gives each coastal state an EEZ. (READ: Top Philippine judge uses Chinese maps vs China) 2. China's 9-dash line ARGUMENT: "Second, that the so-called 9-dash line has no basis whatsoever under international law insofar as it purports to define the limits of China’s claim to 'historic rights.'" EXPLANATION: The 9-dash line is China's demarcation to claim virtually the entire South China Sea. China says this is based on its "historical rights." The Philippines, however, asserts that the 9-dash line is baseless under UNCLOS. This UN convention allows an EEZ, not a 9-dash line. (READ: No such thing as 9-dash line – US envoy) 3. Rocks vs islands ARGUMENT: "Third, that the various maritime features relied upon by China as a basis upon which to assert its claims in the South China Sea are not islands that generate entitlement to an exclusive economic zone or continental shelf. Rather, some are 'rocks' within the meaning of Article 121, paragraph 3; others are low-tide elevations; and still others are permanently submerged. As a result, none are capable of generating entitlements beyond 12NM (nautical miles), and some generate no entitlements at all. China’s recent massive reclamation activities cannot lawfully change the original nature and character of these features." EXPLANATION: Under UNCLOS, habitable islands can generate a 200-nautical-mile EEZ. Rocks cannot. China describes some features in the South China Sea as islands. One of these is Panatag Shoal (Scarborough Shoal), a rocky sandbar. China claims these supposed islands. China also says these "islands" generate an EEZ, which could overlap with the EEZ of the Philippines. The problem for the Philippines is, China declared in 2006 that it "does not accept" arbitral jurisdiction when it comes to overlapping EEZs. UNCLOS allows this exception. This is partly why China says the tribunal at The Hague has no right to hear the Philippine case – because it supposedly involves overlapping EEZs. "The maritime dispute between the Philippines and China boils down to whether there are overlapping EEZs between the Philippines and China in the West Philippine Sea," Senior Associate Justice Carpio says. Carpio, however, explains that "China has no EEZ that overlaps with the Philippines' EEZ in the Scarborough area." Carpio also believes an international tribunal "will deny Itu Aba," the largest island in the Spratlys, an EEZ. (READ:Why China calls it Huangyan Island) The Philippines adds that China's reclamation activities cannot "lawfully change" rocks into islands. 4. Breach of the law of the sea ARGUMENT: "Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its sovereign rights and jurisdiction." EXPLANATION: China prevents Filipinos from fishing in the West Philippine Sea. UNCLOS, on the other hand, gives Filipinos the exclusive rights to fish within the Philippines' EEZ in the disputed waters. (READ: PH fisherfolk: Living with Chinese coast guard's hostility) 5. Damage to environment ARGUMENT: "China has irreversibly damaged the regional marine environment, in breach of UNCLOS, by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its destructive and hazardous fishing practices, and by its harvesting of endangered species." 6

EXPLANATION: China is building artificial islands in the West Philippine Sea. The Philippines says China's reclamation activities have buried 311 hectares of coral reefs – around 7 times the size of Vatican City. This can mean P4.8 billion ($106.29 million) in lost economic benefits. At the same time, China is accused of poaching. (READ: PH: China 'irreversibly damaged' environment) China, for its part, refuses to answer the Philippines' arguments in arbitration proceedings. It has instead published a position paper debunking the Philippines' claims. In the end, the Philippines says, the case at The Hague is set to provide a long-term solution to the sea dispute. (READ: FULL TEXT: The Philippines' opening salvo at The Hague)

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