Philippines v.

China in the matter of the South China Sea Arbitration

Permanent Court of Arbitration, 12 July 2016

FACTS
The Philippines instituted an arbitration case against China. The arbitration
concerns disputes between the Parties regarding the legal basis of maritime rights and
entitlements in the South China Sea, the status of certain geographic features in the South
China Sea, and the lawfulness of certain actions taken by China in the South China Sea.
The basis for this arbitration is the 1982 United Nations Convention on the Law of
the Sea (UNCLOS) since both the Philippines and China are parties to the Convention.
The Convention was adopted as a “constitution for the oceans,” in order to “settle all
issues relating to the law of the sea,”. The Convention addresses a wide range of issues
and includes as an integral part a system for the peaceful settlement of disputes.
China has consistently rejected the Philippines’ recourse to arbitration and
adhered to a position of neither accepting nor participating in these proceedings. Despite
China’s decision not to appear formally at any point in these proceedings, it has taken
steps to informally make clear its view that the Tribunal lacks jurisdiction to consider any
of the Philippines’ claims.

ISSUES
1. Whether or not the Tribunal has jurisdiction.
2. Whether China have claims under historical rights and the “nine-dash line”.
3. What is the status of features in the South China Sea?
4. Whether or not the activities of China in the West Philippine Sea are lawful.
5. Whether or not the actions of China since the commencement or arbitration have
aggravated and extended the dispute.
6. What is future conduct of the parties?

RULING
1. Yes, the Tribunal has jurisdiction in the arbitration. Pursuant to Article 288(4) of
the Convention, “in the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that court or tribunal.”

2. The Tribunal concludes that the Convention defines the scope or maritime
entitlements in the South China Sea, which may not extend beyond the limits
imposed therein. The Tribunal concludes that, as between the Philippines and
China, China’s 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 China’s maritime entitlements under the Convention. The Tribunal concludes
that the Convention superseded any historic rights or other sovereign rights or
jurisdiction in excess of the limits imposed therein.

3. The features in the South China Sea include, or in their natural condition did
include, rocks or sand cays that remain above water at high tide and are,
accordingly, high-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c)
Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef
(North).
The Tribunal concludes 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.
The Tribunal concludes that 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.

4. The Tribunal finds that China has created serious risks of collision and danger to
Philippine vessels and personnel by the conduct of Chinese law enforcement
vessels in the vicinity of Scarborough Shoal. The Tribunal finds China to have
violated Rules 2, 6, 7, 8, 15 and 16 of the Convention on the International
Regulations for Preventing Collisions at Sea and, therefore, to be in beach of
Article 94 of the Convention.

5. The Tribunal finds that 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 particular, while these proceedings
were ongoing:
(a) China has aggravated the Parties’ dispute concerning their
respective rights and entitlements in the area of Mischief Reef by building a
large artificial island on a low-tide elevation located in the exclusive
economic zone of the Philippines.
(b) China has aggravated the Parties’ dispute concerning the
protection and preservation of the marine environment at Mischief Reef by
inflicting permanent, irreparable harm to the coral reef habitat of that
feature.
(c) China has extended the Parties’ dispute concerning the
protection and preservation of the marine environment by commencing
large-scale island-building and construction works at Cuarteron Reef, Fiery
 Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi
Reef.
(d) China has aggravated the Parties’ dispute concerning the status
of maritime features in the Spratly Islands and their capacity to generate
entitlements to maritime zones by permanently destroying evidence of the
natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

6. The Tribunal considers it beyond dispute that 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, and the Tribunal is therefore not persuaded that it is
necessary or appropriate for it to make any further declaration.