Case Summary/Case Digest: Republic of the Philippines vs.

People’s Republic of
China (South China Sea territorial dispute)

See: published version

http://foreignpolicyproject.org/2017/03/21/policy-report-rule-of-law-and-peace-
and-order-in-the-south-china-sea-and-the-west-philippine-sea/

Rule of Law and Peace and Order

in the South China Sea and the West Philippine Sea1

By: Catherine S. Panaguiton

“ We have to step back and look at all China’s activities and the one
you mentioned..
the island building in the South China Sea, the declaration of
control on airspace in waters over the Senkaku islands in Japan..

Both of those are illegal actions.. they're (PRC) taking territorial
control of territories that are not rightfully China’s..”2

---- quote from Rex Tillerson, Donald Trump’s pick for and US’s newly
confirmed Secretary of State, during in his confirmation hearing in
January 2017

This sentiment echoes the Arbitral Tribunal ruling in the Republic of the
Philippines vs. People’s Republic of China case. The Award discussed the two
key phrases in the above statement:

i. “China’s activities… island building in the South China Sea”

ii. “are illegal actions”

1
This paper was made while the author was under the Fellowship Program at the Japan Institute for
International Affairs (JIIA) in Tokyo, Japan. This author wishes to especially acknowledge her
colleagues at the JIIA for their kind assistance: Mr. Tetsuo Kotani, Senior Fellow (JIIA), Japan-US
Alliance, Maritime Security, Mr. Ryosuke Hanada, Fellow (JIIA), Political and Economic Issues
in Australia, India and ASEAN and Ms. Yuko Hirayabashi, Research Assistant (JIIA).

In addition, this author likewise extends her gratitude to Capt. Raul (Pete) Pedrozo, United States
Deputy General Counsel Defense POW/MIA Accounting Agency (DPAA); and Prof. Dr. Timothy
Stephens, Professor of International Law, Australian Research Council Future Fellow Deputy
Director, University of Sydney Marine Studies Institute, for their invaluable inputs.
2
Excerpt taken from the video of Rex Tillerson during his confirmation hearing dated 11 January
2017, accessed 25 January 2017, https://www.youtube.com/watch?v=SnI1l68-vz4.

1
 This paper briefly explains items (i) and (ii).3 Then it later on goes deeper
as to the legal and practical implications of the case to the judicial and political
spheres and key actors of littoral4 and affected states, respectively. Specifically,
the paper provides examples of significant legal doctrines that may be useful for
and legally permissible actions of littoral and affected states in areas in the SCS
and WPS, as per the ruling made by the arbitral tribunal in the Republic of the
Philippines (RP) vs. People’s Republic of China (PRC) case.

However, be it noted that although the award declares certain legally

permissible actions in the South China Sea5 and West Philippine Sea6, there are
still issues on the practicability of the full implementation of these actions.

Key states play vital roles in the manner and extent of enforcement of the
award. The manner and extent of enforcement of the award are partly determined
by the foreign policy of these key states. Presently, the precise direction and/or
probability and/or outcome of the enforcement of the award remain uncertain.
This paper briefly goes over possible directions and/or probability and/or outcome
of the enforcement of the award particularly from RP standpoint vis-à-vis recent
notable political events in gauging the current state of Rule of Law in the SCS and
WPS. Rule of Law aspects will also be examined and their relation to maintenance
of peace and order, in the context of the SCS and WPS dispute. Pre-conceived
notions of Rule of Law being automatically synonymous to peace and order may
be reconsidered.

Brief Background Behind the Institution of the Case

Chinese incursions in disputed waters in the SCS and WPS started from as
early as the 1950s. However, they were scant and far in between. As decades
passed, Chinese surveillance and incursions and the incidents between PRC, RP
and Vietnam have increased in these areas. Rapid reclamation activities by PRC
and the construction of installations on them (many of which are of a military
nature)7, amidst protests by its neighbors (including the Philippines) and claimant
states, have likewise increased the tensions.

After having exhausted political and diplomatic avenues for a peaceful

negotiated settlement of its disputes with the PRC over entitlements in the SCS

3
“China’s activities” would refer to iteration of definite Chinese actions in the SCS and WPS.
“are illegal” would pertain to how these definite Chinese actions violate rules and which specific
rules. (In this case, it is international law in general and UNCLOS, in particular).
4
i.e. RP, Vietnam etc.
5
Hereinafter, “SCS”.
6
Hereinafter, “WPS.”
7
“The True Scope of China’s Land Reclamation Activities in the South China Sea”, accessed 25
January 2017, http://www.valuewalk.com/2015/09/chinas-land-reclamation-activities-in-the-south-
china-sea/.

2
and WPS, which came to a boil when PRC seized Panatag (Scarborough) Shoal
off the RP’s Zambales Province in 2012,8 the RP initiated arbitration in January
2013.9

Summary of the Facts, Issues and Ratio of the Arbitral Tribunal

Quick Facts on the Arbitration Case

Seat of Arbitration: Netherlands

Arbitrator (s): 5 Judge Thomas A. Mensah (Ghana)
Judge Jean-Pierre Cot (France)
Judge Stanislaw Pawlak (Poland)
Professor Alfred H. Soons (Netherlands)
Judge Rudiger Wolfrum (Germany)
Length of Proceedings: 3-4 years
Date of commencement: 22-01-2013
Date of issue of final award: 12-07-2016

Main Relief Prayed for By the Philippines in Filing the Case

For the Arbitral Tribunal to rule that PRC activities in the SCS are illegal
under international law and violates PH rights under international law.

Steps that Need to be Undertaken by the RP to obtain Relief

1. RP needed to convince the Arbitral Tribunal that it had jurisdiction over

the case and the claims are admissible.

a. RP must prove that it had jurisdiction even if PRC did not participate
in any stage of the case.

PRC states that as PRC did not participate in the case in any stage, the
tribunal has no jurisdiction over it. Thus, the case must be dismissed.

The general rule in institution of suits is that everyone has a right to

due process. That is, if a state is not able to be heard and defend itself before the
court, a judgment rendered against it has no binding effect. This covers states that
have suits filed against it in international courts such as PRC. PRC contends that
as it has not appeared before the tribunal and explained its position, judgment
rendered against it has no binding effect.

8
“Duterte Optimistic About Outcome in the South China Sea Arbitration Ruling”, accessed 11
October 2016, http://www.gmanetwork.com/news/story/572494/news/nation/duterte-optimistic-
arbitration-court-will-rule-in-favor-of-phl-on-sea-dispute.
9
Institute for Maritime Affairs and Law of the Sea, UP College of Law (UP IMLOS), Press
Release, 13 June 2016, http://ac.upd.edu.ph/index.php/resources/the-asian-center-blog/873-up-
imlos-publishes-case-digest-summary-of-findings-on-south-china-sea-arbitration.

3
 However, in the instant case, an exception was applied by the arbitral
tribunal10. The tribunal ruled that PRC was given notice in every step of the suit
and multiple chances to explain its side and defend itself. PRC refused to avail of
the opportunities given to it pursuant to procedural rules and RP will not be
prejudiced by this refusal.11

b. RP must argue successfully that the RP vs. PRC case is not a

sovereignty dispute.

PRC contends that the suit is a sovereignty dispute and not a dispute
concerning the interpretation or application of the Convention. Under Article 288
of the UNCLOS, the tribunal only has jurisdiction over disputes concerning the
interpretation or application of the Convention and NOT sovereignty disputes.
PRC contends that it is of such nature because only after the extent of CH’s
territorial sovereignty in SCS is determined can a decision be made on whether
CH’s maritime claims in SCS have exceeded the extent allowed under the
Convention.12 Further, PRC furthers that the question of the legality of CH actions
in SCS is dependent upon the resolution of the question of its sovereignty over
relevant maritime features and maritime rights derived therefrom.

The tribunal in the case disagreed with the foregoing PRC position. It
ruled that the case is a dispute concerning the status of maritime features in the
SCS. It therefore involves the interpretation and application of UNCLOS. It is not
a sovereignty dispute.

And even assuming arguendo that passing upon questions of sovereignty

is unavoidable, this does not render the case dismissible. As stated in the United
States Diplomatic Consular Staff in Tehran case13:

10
Article 9( Default of appearance ) of Annex VII, UNCLOS states:
“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.” x x x

“Despite CH’s non-appearance, it remains a Party to the proceedings, with the ensuing rights and
obligations, including that it will be bound by any decision of the Tribunal.” (citing, “Artic Sunrise
Case” Kingdom of Netherlands vs. Russian Federation and Nicaragua vs. United States; See
Award on Jurisdiction, para. 114, citing Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States), Merits, Judgment, ICJ Reports 1986, p. 14 at p. 24, para.
28; Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), Provisional Measures,
Order of 22 November 2013, ITLOS Reports 2013, p. 230 at p. 242, para. 51; Arctic Sunrise
Arbitration (Kingdom of the Netherlands v. Russian Federation), Award on Jurisdiction of 26
November 2014, para. 60; Arctic Sunrise Arbitration (Kingdom of the Netherlands v. Russian
Federation), Award on the Merits of 14 August 2015, para. 10.)
11
See Award, paras. 116-128, p.113.
12
See Award, paras. 628-633, pp 255-256.
13
United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ
Reports 1980, p. 3 at p. 43, para. 93.

4
 “There are no grounds to decline to take cognizance of one aspect of the
dispute merely because that disputes has other aspects, however
important.”

For as long as the case primarily involves the determination of the

status of maritime features, even if there are questions of sovereignty that are
involved, but for as long as these questions are just in the periphery, the tribunal
has jurisdiction to the case14.

c. RP must be able to further that the RP vs. PRC case is not a maritime
boundary delimitation case.

PRC submitted that the subject matter of the proceedings is an integral

part of the dispute of maritime boundary delimitation between RP and PRC. Thus,
this makes the case accordingly excluded from the Tribunal’s jurisdiction under
Article 298 of the UNCLOS.

The tribunal disagreed with this position. Following the doctrine (and in
the process, firming up the doctrine) in Nicaragua vs. Colombia that ‘Maritime
boundary delimitation does not arise unless there are overlapping maritime
entitlements’15, it outlined several steps that ought to be undertaken to determine
whether or not it is a maritime boundary delimitation case.

These steps are in the below and in this particular order:

(1) Determine the character and nature of the maritime features;

(2) Consequently, determine the entitlement to maritime zones based
on (1) and;
(3) Determine the existence of overlapping zones between the two
states asking this question.

After the foregoing steps are undertaken and there were indeed found to
be overlapping zones between the two states, then the case is a maritime boundary
limitation case. PRC conflated all the steps, which the tribunal corrected in this
case. In the end, the tribunal ruled that after determining the status of maritime
features, there are no overlapping zones in this case. Hence, the case is not a
maritime boundary delimitation case.16

d. RP must overcome all other preliminary questions posed by PRC

assailing the jurisdiction of the Court.

(1) RP must prove that its act of initiating arbitration does not per
se constitute an abuse of process.

PRC contended that RP’s initiation of the arbitration case is “an

abuse of compulsory dispute settlement procedures.”17 Although

14
See Award on Jurisdiction, paras. 401, 403.
15
See Award, para. 392, p. 177.
16
See Award on Jurisdiction, para. 146.
17
See Award, para. 124.

5
 the tribunal noted that PRC has not specifically tied its allegations
to Articles 300 18 and 294 19 of the UNCLOS, the tribunal still
interpreted the above statement as pertaining to these
aforementioned provisions.

The tribunal ruled that RP’s act of initiating arbitration does not
per se constitute an abuse of process. China has not made an
application to the tribunal pursuant to Article 294 (1) of the
Convention, and the Tribunal is therefore under no obligation to
follow the procedure outlined in Article 294 (2). Further, while the
Tribunal is entitled to determine proprio motu whether the
Philippines’ claim constitutes an abuse of process or whether
prima facie it is unfounded, it declines to do so in the present
case.20 The tribunal ruled that the question of whether or not there
is an abuse of process will only be passed upon by the tribunal
provided that there is a “blatant showing” of abuse. In the instant
case, there is no such blatant showing of abuse, so the tribunal
even refused to consider this as a valid question.

(2) RP must convince the tribunal that the exchange of views between
RP and PRC as required by Article 283 of the UNCLOS has
already been fulfilled.

PRC contends that the requirement of exchange of views under

Article 283 of the UNCLOS21 has not yet been fulfilled. If this is
merited by the court, it renders the case dismissible.

RP argued that it had met the requirements of Article 283 by virtue

of “two exchanges in 1995 and 1998 that by themselves show this

18
Article 300 of the UNCLOS reads: “State Parties shall fulfill in good faith the obligations
assumed under this Convention and shall exercise the rights, jurisdiction and freedoms recognized
in this Convention in a manner which would not constitute an abuse of right.”
19
Article 294 of the UNCLOS reads: “1. A court or tribunal provided for in article 287 to which an
application is made in respect of a dispute referred to in article 297 shall determine at the request
of a party, or may determine proprio motu, whether the claim constitutes an abuse of legal process
or whether prima facie it is well founded. If the court or tribunal determines that the claim
constitutes an abuse of legal process or is prima facie unfounded, it shall take no further action in
the case.
2. Upon receipt of the application, the court or tribunal shall immediately notify the other party or
parties of the application, and shall fix a reasonable time-limit within which they may request it to
make a determination in accordance with paragraph 1.
3. Nothing in this article affects the right of any party to a dispute to make preliminary objections
in accordance with the applicable rules of procedure.
20
See Award on Jurisdiction, para. 128.
21
Article 283 of the UNCLOS reads: “Obligation to exchange views 1. When a dispute arises
between States Parties concerning the interpretation or application of this Convention, the parties
to the dispute shall proceed expeditiously to an exchange of views regarding its settlement by
negotiation or other peaceful means. 2. The parties shall also proceed expeditiously to an exchange
of views where a procedure for the settlement of such a dispute has been terminated without a
settlement or where a settlement has been reached and the circumstances require consultation
regarding the manner of implementing the settlement.”

6
 requirement to have been satisfied.” The Philippines also noted
that, in its view, China’s Position Paper itself demonstrates “that
the obligation to exchange views on the means to settle the dispute
has been satisfied.”22

The arbitral tribunal ruled that the Parties (RP and PRC) have
already exchanged views as required by Article 283 23 of the
Convention, meriting RP’s above contention.

(3) RP must prove that the following instruments/statements do

not preclude recourse to compulsory settlement procedures
available under Section 2 of Part XV of the Convention. Hence,
the case can proceed24:

a) 2002 China-ASEAN Declaration on Conduct of Parties in the

SCS
b) Joint statements of the Parties referred to in pars. 231-232 of
the Award
c) Treaty of Amity and Cooperation in the Southeast Asia
d) Convention on Biological Diversity

PRC furthers that items (a) – (d) makes for arbitration an improper
action for RP. Hence, the case must be dismissed.

As for (a) and (b), the tribunal stated that the non-binding nature of
these instruments and the lack of prescribed procedures do not preclude
recourse to arbitration.25 As for (c) and (d), although these are considered
as binding instruments, the lack of declaration in these instruments
specifically barring recourse to arbitration makes for arbitration still a
valid action for RP.26

22
See Award on Jurisdiction, para. 330 citing Jurisdictional Hearing Tr. (Day 2), p. 27;
Government of the Republic of the Philippines and Government of the People’s Republic of
China, Philippine-China Bilateral Consultations: Summary of Proceedings (20-21 March 1995)
(Annex 175); Republic of the Philippines, Department of Foreign Affairs, Record of Courtesy Call
on Chinese Vice Premier and Foreign Minister Qian Qichen (21 March 1995) (Annex 176);
Summary of Proceedings: Philippine-China Bilateral Consultations (20-22 March 1995) (Annex
177); Government of the Republic of the Philippines and Government of the People’s Republic of
China, Joint Statement: Philippine-China Experts Group Meeting on Confidence Building
Measures (23 March 1995) (Annex 178); Department of Foreign Affairs of the Republic of the
Philippines, Transcript of Proceedings: RP-PRC Bilateral Talks (9 August 1995) (Annex 179);
Government of the Republic of the Philippines and Government of the People’s Republic of
China, Agreed Minutes on the First Philippines-China Bilateral Consultations on the South China
Sea Issue (10 August 1995) (Annex 180); Government of the Republic of the Philippines,
Transcript of Proceedings Republic of the Philippines-People’s Republic of China Bilateral Talks
(10 August 1995), p. 3 (Annex 181). Government of the Republic of the Philippines and
Government of the People’s Republic of China, Joint Pres
23
See Award on Jurisdiction, para. 342.
24
See Award, para, 159 p. 60.
25
Ibid.
26
Ibid.

7
 2. RP needed to convince the tribunal of the Merits of the case. Specifically,
that China does not have legal rights to the areas in the SCS and hence, its
actions there are unlawful as well.

To do this, RP needed to prove three things:

A) It needed to invalidate the nine-dashed line theory of China and the

rules under UNCLOS prevails;

B) Within the UNCLOS regime, RP and not PRC has rights in zones
within the SCS where PRC conducts the activities complained of; and

C) As the RP and PRC has rights has rights in zones within the SCS
where PRC conducts the activities complained of, actions within these
areas violate specific provisions of the UNCLOS.

RP was successful in proving A-C. RP’s arguments, PRC’s counter-arguments to

the tribunal ruling are in the following:

A) It needed to invalidate the nine-dashed line theory of PRC and prove

that the rules under UNCLOS prevails;

PRC claims to have legal rights over areas within the red area in the figure
below based on “historic rights”. This runs counter to rules of UNCLOS which
shows entitlements to EEZs by states as seen in blue in the figure below. First step
that RP must do is to invalidate the nine-dashed line.

In the end, the arbitral tribunal ruled that PRC never had historic rights in
the SCS, before and even after it signed on the UNCLOS.27 There was no hard
evidence of CH claiming sovereignty28 i.e. historical navigation and fishing in
SCS.

Thus,

“China’s ratification of the Convention did not extinguish historic rights in the
waters in the South China Sea.

Rather, CH relinquished the freedoms of the high seas that it had previously
utilised, when these areas are placed within the ambit of the EEZ of other states by
virtue of UNCLOS.”29

And even assuming arguendo 30 that it did have these rights prior to
UNCLOS, these rights have been extinguished when it signed on the UNCLOS.31
Specifically the tribunal ruled that,

27
See Award, para. 270.
28
Historic rights are predicated on sovereignty and not sovereign rights claims. See Award par.
265.
29
See Award, par. 271.
30
For the sake of argument.

8
 “The text and context of UNCLOS is clear in superseding any historical
rights that a State may once have had in the areas that form part of the EEZ
and CS of another state.”32

Figure 1. Extent of China’s maritime claims and EEZs of littoral states under the
UNCLOS

B) RP must prove that within the UNCLOS regime, RP and not PRC has
rights in zones within the SCS where PRC conducts the activities
complained of;

To prove that RP had rights to areas, it must be able to convince the

tribunal to declare the status of maritime features as “rocks” or “low tide
elevations” and not “islands.”

31
See Award, par. 246.
32
See Award, par. 247.

9
 The Table below provides a summary of maritime features that RP asked
the tribunal to rule upon, RP submissions as to their status, PRC positions on the
maritime features as per its Position Paper and Diplomatic Communications33 and
finally, the Tribunal ruling on the status of the maritime features. The
declarations of the status of maritime features in the SCS. Specifically, these
were classified as “rocks”, “islands”34, “high tide elevations (HTEs) and low-tide
elevations (LTEs)” (Kindly refer to Annex A herein to see the table showing
descriptions of classifications of maritime features as discussed).

Name of RP Submissions PRC Tribunal Ruling

Feature Submissions in
Diplomatic
Comms, PP
LTE HTE THE LTE HTE
Rock Island Rock Island Rock Island
Itu Aba ✓35 ✓36 ✓37
Thitu ✓38 ✓39 ✓40
West York ✓41 ✓42 ✓43
Scarborough ✓44 ✓45 ✓46
Shoal

Johnson ✓47 ✓49

Reef

33
PRC never made any submissions through a pleading throughout the whole case. Its position on
the maritime features was determined by the arbitral tribunal through the Position Paper it
submitted and Diplomatic Communications to RP and the arbitral tribunal.
34
Fully Entitled Islands. See Explanation in Annex A.
35
See Award, paras. 426-427.
36
See Award, para. 100.
37
See Award, para. 625.
38
See Award, par. 426.
39
See Award, para. 301
40
See Award, para. 625.
41
See Award, para. 426.
42
See Award, para. 301
43
See Award, para. 625.
44
See Award, para. 423.
45
See Award, para. 244. See also Award, paras. 299 and 461.
46
See Award, para. 282. See also Award, paras. 554 and 643.
47
See Award, para. 423.
49
See Award, para. 282.

10
 Cuarteron ✓50 N/A48 ✓51
Reef

Gaven Reef ✓52 ✓53

McKennan ✓54 ✓55
Reef (inc.
Hughes
Reef)
Fiery Cross ✓56 HTE57 ✓58
Reef
Mischief ✓59 HTE60 ✓61
Reef
(Part
Second ✓ 62 N/A63 of PH
EEZ)
Thomas
Shoal
Subi Reef ✓64 N/A65 ✓66

Table. Summary of the Tribunal Ruling on Status of Maritime Features67.

50
See Award, para. 423.
48
N.A. stands for “Not Applicable”. This means that PRC never made any declaration as regards
its position with respect to the indicated features. See Award, para. 302 stating that “Where China
has not publicly stated its specific view regarding the status of a particular feature xxx”, meaning
China did not give a particular position regarding the status of all maritime features subject of the
dispute and para. 472 stating “As far as the Tribunal is aware, China has not made any specific
statements about the status of Johnson Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), or McKennan Reef for purposes of 121 (3) of the Convention xxx”. However, please see
Award, para. 301 stating that “China has (also) commented on the entitlements of the maritime
features of the Spratlys Islands collectively, stating that “China’s Nansha Islands is fully entitled to
Territorial Sea, Exclusive Economic Zone and Continental Shelf”. Features in the Spratlys Island
Group are the following: Itu Aba, Thitu, West York, Spratly Island, Northeast Cay, Southwest
Cay, Sin Cowe, Nanshan, Sand Cay, Loaita, Namyit, Amboyna Cay, Flat Island, Lankam Cay.
51
See award, para. 282.
52
See Award, para. 292.
53
See Award, para. 282.
54
See Award, para. 292.
55
See Award, para. 282
56
See Award, para. 423.
57
See Award, para. 300.
58
See award, para. 282
59
See Award, para. 292.
60
See Award, para. 300.
61
See Award, para. 381.
62
See Award, para. 292.
63
See Note at 25.
64
See Award, para. 292.
65
See Note at 25.
66
See Award, para. 383.
67
Please note that for purposes of reading the table, HTE stands for high tide elevation and LTE
stands for low tide elevation. Further, the arbitral tribunal determined the status of these maritime
features based on their original state and not after human modifications have been employed upon
them (i.e. reclamation activities). The table must be read like so: the check marks that are found in
the intersection of the name of the island and the PH Submissions, CH Submissions and Arbitral

11
 There are significant practical implications as to the declaration of the above
maritime features. Determining whether a feature is a “rock” or an “island”, or an
HTE or LTE, has an effect as to what could be legally permissible actions of the
RP and other littoral and affected states within areas of these features.

To illustrate, examples may be helpful.

Example 1: Mischief Reef as an LTE and not as an HTE

The tribunal in this case ruled that Mischief Reef is a LTE and not a HTE.
And as a LTE, it is deemed to be part of RP’s EEZ.68

As the tribunal discussed in the award, the treatment then of Mischief

Reef, per the ruling, shall not even limited to treating it as a “rock” that is entitled
to a 12 nautical mile (NM) territorial sea, as some operations by states prior to the
ruling treated it to be69. Any transit within 12 NM of such artificial islands
consistent with innocent passage would amount to tacit consent to China's position
that these features possess territorial seas — a position directly at odds with
UNCLOS.70 It should then be treated as part of the PH EEZ, with all the rights and
obligations of RP as a coastal state, and with due regard to rights of other states
under the UNCLOS.

Specifically, for RP, Mischief Reef being part of EEZ entitles it to all the
rights, jurisdiction of the coastal state under Article 56 of the UNCLOS, such as,

‘sovereign rights for the purpose of exploring and exploiting, conserving and
managing the natural resources, whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its subsoil, and with regard to
other activities for the economic exploitation and exploration of the zone, such as
the production of energy from the water, currents and winds.’71

Tribunal Ruling would provide the answers on PH Submissions, CH Submissions and Arbitral
Tribunal Ruling of the particular feature. For example, for the maritime feature of Mischief Reef,
RP’s position is that it is an LTE or a Low Tide Elevation. PRC on the other hand, believes
otherwise-that it is a HTE or a High Tide Elevation based on its Position Paper and/or Diplomatic
Communications. The Arbitral Tribunal sided with RP on this note stating that it is a LTE. This
format applies to the rest of the table.

Islands discussed in this table will refer to “Fully Entitled Islands” as described in Annex A
herein.
68
See Table.
69
Herscovitch, Ben. “Both Coalition and Labor Weak On South China Sea Freedom of
Navigation”. https://www.lowyinstitute.org/the-interpreter/both-coalition-and-labor-weak-south-
china-sea-freedom-navigation.
70
Ibid.
71
Ibid.

12
 For states other than RP, they have “(a) freedom of navigation; (b)
freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject
to Part VI; (d) freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI; (e) freedom of fishing,
subject to the conditions laid down in section 2; (f) freedom of scientific research,
subject to Parts VI and XIII.”72 As earlier mentioned, both RP and these other
states are not limited only to the right of innocent passage within 12 NM of the
Mischief Reef and can even go beyond that. Thus, as this feature is part of PH
EEZ, it becomes obvious that China’s occupation and activities73 herein are illegal
as it fails to respect RP’s rights in this area

Example 2: Cuarteron Reef, Gaven Reef and Fiery Cross Reef are
“rocks” and not “islands”

Figure 2. Features as “rocks” and “islands”74

72
Article 58 in relation to Article 87 of the United Nations Convention on the Law of the Sea, 1833
UNTS 3; 21 ILM 1261 (1982).
73
Specifically, the tribunal ruled that PRC’s grant of rights to nationals and vessels (issuance of
Nansha Certification of Fishing permit to its nationals and Chinese fishermen escorted by CMS
vessels pursuant to the permit) in areas in which RP exercises sovereign rights (Mischief Reef)
violates Article 58(3) of the UNCLOS. It failed to exercise due regard on rights of RP in its EEZ.
74
Original map is found in the South China Sea Org Website, accessed 25 January 2017,
http://www.southchinasea.org/maps/territorial-claims-maps/. However, please note that the circles
in red and green were drawn by the author.

13
 To make the concepts easier to understand, we refer to the above figure.
The features circled in red are features declared as “rocks” by the tribunal. The
features circled in green show the same features as “islands” that are entitled up
to 200 NM EEZ. In the figure above, the green circles are illustrated to have larger
areas than the red circles to show entitlement of “islands” of bigger MZs than
“rocks”. (Please note though that these are very rough illustrations. The green and
red areas do not purport to show in exact dimensions of 12 NM TS and 200 NM
EEZ. These are only drawn to depict the stark difference between the MZs of
“rocks” and “islands).

Now, what is the effect of the tribunal declaration to these features as

“rocks” and not “islands” to states other than RP such as the US or Japan, whose
ships ply these areas?

There is a significant effect. The declaration of rocks allows not only

innocent passage rights within 12 NM from the baseline of these features to ships
such as the US and Japan. Furthermore, from the area outside of the red circles of
these features, and outwards, US and Japanese ships, for example, exercise vast
high seas freedoms under Articles 8775, 8976 and 9077 of the UNCLOS.

Compare this if these features are ruled to be “islands”. If these were

declared as “islands”, from the area outside of the red circles of these features, and
outwards, these ships have to follow the rights and obligations under UNCLOS,
i.e. the section on EEZ, as applicable. The areas wherein these ships can exercise
high seas freedoms will only be in the areas starting from 200 NM EEZ (or the
green areas). Furthermore, be it noted that although the said vessels can exercise
high seas freedoms starting from 200 NM EEZ and these vessels may legitimately
engage in military activities in these EEZs without prior notice to, or consent of,
the coastal State concerned 78 , coastal states’ sovereign rights must still be
respected under Article 56 of the UNCLOS. Whereas, in the declaration of these
features as “rocks”, ships can exercise full high seas freedoms, without regard to

75
Article 87 (Freedom of the High Seas) reads: “The high seas are open to all States, whether
coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by
this Convention and by other rules of international law. It comprises, inter alia, both for coastal
and land-locked States: (a) freedom of navigation; (b) freedom of over flight; (c) freedom to lay
submarine cables and pipelines, subject to Part VI;(d) freedom to construct artificial islands and
other installations permitted under international law, subject to Part VI;(e) freedom of fishing,
subject to the conditions laid down in section 2;(f) freedom of scientific research, subject to Parts
VI and XIII.
76
Article 89 (Invalidity of Claims of Sovereignty Over the High Seas) reads: “No State may
validly purport to subject any part of the high seas to its sovereignty.”
77
Article 90 (Right of Navigation) reads: “Every State, whether coastal or land-locked, has the
right to sail ships flying its flag on the high seas.”
78
Raul (Pete) Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct
Military Activities in China's Exclusive Economic Zone”, Chinese Journal of International Law,
(01 March 2010), https://doi.org/10.1093/chinesejil/jmq007

14
coastal states’ rights under Article 56, in areas as near as for example, 14 NM
from the baseline of the maritime feature.

This goes to show that the declaration of maritime features as “rocks”

is certainly good news for these states’ vessels as they can exercise more high
seas freedoms closer to the features. Please note though that the maritime
features79, Gaven Reef, Cuarteron Reef and Fiery Cross Reef, such as the earlier
example of Mischief Reef, are occupied by China. This fact must be considered
by states in attempting to exercise these high seas freedoms (beyond 12 NM) and
even the right to innocent passage (within 12 NM) from the baseline of these
“rocks”.

C) RP must prove the specific provisions that PRC has violated, after it
has shown that it had rights to areas in the SCS.

As the RP (and not PRC) has rights in zones within the SCS where
PRC conducts the activities complained of, actions within these areas
violate specific provisions of the UNCLOS. In the end, the tribunal
ruled the following PRC actions as illegal:

1. There is interference with lawful activities of the PH- petroleum

exploration, seismic surveys, and fishing- within 200 NM of the
PH mainland in violation of various provisions of the UNCLOS.

2. PRC violated Article 77 of the UNCLOS, which accords sovereign

rights to RP with respect to the continental shelf due to the SC 72
incident at the Reed Bank.

3. The issuance, and not merely enforcement of a fishing Moratorium

known as the Hainan Regulation, violated Article 56 of the
UNCLOS.

4. PRC also violated Article 58 (3) of the UNCLOS, when it failed to

exercise due diligence in preventing its nationals from unlawfully
fishing in PH EEZ. Specifically, the tribunal merited evidence on
sightings of PRC fishermen in Second Thomas Shoal and Mischief
Reef and this was pursuant to the issuance by PRC of a Nansha
Certification of Fishing Permit to its nationals and PRC fishermen
escorted by CMS vessels in these areas.

5. PRC also violated obligations to protect and preserve the marine

environment (UNCLOS provisions against pollution, duty to
preserve and protect the environment by flag state (harvesting of
endangered species, CITES convention, CH is a party), duty to

79
There are even runways spotted and/or preparations for a runway for some of these features.
Nobody is going to try to stop the U.S. Navy from operating': Washington warns Beijing NOT to
challenge its flights over South China Sea” (accessed 25 January
2017).http://i.dailymail.co.uk/i/pix/2015/12/16/article-doc-6j05f-
FqeQv9hsW372334277514aa60e0-882_634x494.jpg)

15
 cooperate et al, conduct EIA80s). This is due to harmful fishing
practices and construction activities done in the SCS.

Figure 3. Dredging activities: “Second Carpenter Report”

*** However, there are several activities by the PRC that were declared to be
violative of the UNCLOS that did not need to be proven to that these are within
maritime zones whereby RP exercises its rights:

6. The dangerous maneuver by CMS ships in Scarborough Shoal in

serious risk of collision to PH vessels violated Articles 94 and 21
of the UNCLOS and related provisions in the 1972 COLREGS.

7. The prevention of rotation and resupply of personnel in BRP Sierra

Madre in Second Thomas Shoal and continuing of reclamation
activities even after the case aggravated the dispute, in violation of
UNCLOS.

Legal Implications of the Case

The Arbitral Tribunal Award established and/or re-affirmed several

noteworthy legal doctrines. These legal doctrines established in RP vs. PRC are
useful for states in similar situations as RP, in case they wish to seek similar legal
remedies.81These rulings may also be used in states’ policy-making and thus, be
influential in the development of state practice and affect international law, in
general. The complete listing of legal doctrines and explanation is explained in
Annex B below.

The Aftermath

After the arbitral tribunal handed down its ruling, the main concern is its
enforcement. Avoiding a “paper judgment” in international law depends a lot on

80
Environmental Impact Assessments.
81
If similar suits are filed against PRC and PRC interposes these defences to render the case
dismissible, applicant states can use doctrines from this ruling to support their arguments in these
suits. (Caveat: Please note though that this is true provided that similar facts and circumstances
exist and metrics employed in the case are used.)

16
the political will of the international community, most especially its leading states
to influence its neighbour PRC to act in accordance with international law82.

Spotlight has been with RP after the award was rendered. Emerging
foreign policy83 under the Duterte administration suggests that PH will pursue the
route of resolving the SCS issue with China through peaceful bilateral dialogue84
and not through resort of other legal means that are more confrontational by
nature versus China 85 . Should the US undertake Freedom of Navigation
Operations (FONops) in the SCS or make provocative statements against PRC86,
the Philippines will play no part in these.87 However, RP is still adamant in
protecting its rights through measured actions such as the lodging of diplomatic
protests against PRC over Beijing's installation in 2016 of anti-aircraft and anti-
missile systems on its manmade islands in the disputed SCS.88

The Way Ahead

AV Dicey89 provided three (3) components on the Rule of Law in his

seminal work “The Law of the Constitution”, viz:

(1) Sovereignty of law over man;

(2) Equality of men over the law; and
(3) Judicial decisions applying prevailing laws be enforced.

As per the above, enforcement of judicial decisions forms part and parcel
of “Rule of Law”. However, in the case of RP vs. PRC 90 , the decision of

82
Employment of legal remedies can provide pressure to China to comply with its international
obligations. Alternative routes to resolve the dispute can be undertaken such as development of
Joint Development Zones by claimant states. Operations that are in accord with the ruling to
change the status quo to be more in line with the award may also be undertaken, but with utmost
care of the consequences.
83
Duterte's foreign policy shift away from traditional ally the United States and towards doing
more regional deals for loans and business under his "pro-Filipino" policy.
http://www.cnbc.com/2017/01/23/china-philippines-agree-to-cooperate-on-30-projects-worth-37-
billion.html
84
“New Dynamics in ASEAN’s Stance in South China Sea” by Henry Hing Chan and other
sources.
85
i.e. UN General Assembly.
86
i.e. U.S. nominee for Secretary of State, Rex Tillerson’s strong statement that Beijing should be
repelled from, and then denied access to, the controversial islets (in the SCS).
87
Philippine Foreign Minister Perfecto Yasay speaks during a meeting with Russian Foreign
Minister Sergei Lavrov (not pictured) in Moscow, Russia, December 5, 2016. See Henry Ching
Chan. “Duterte and the IPP Review”. (accessed 25 January 2017).
http://www.reuters.com/article/us-southchinasea-philippines-china-idUSKBN1501E4
88
Ibid.
89
“Explain The Rule of Law” (accessed 25 January 2017) . https://www.lawteacher.net/free-law-
essays/public-law/explain-the-rule-of-law-public-law-essays.php.

17
undertaking full enforcement, while ideal, must be made whilst ever so mindful of
its aftereffects. What is legally permissible may not exactly be practicable. If
not well thought out and handled appropriately, employment of legally
permissible actions can lead to dire consequences.

“Rule of law” in the international setting has been regarded to “suit those
states that are resistant to a broader understanding of international legal
obligations”.91 However, be it noted Simon Chesterman’s view of “Rule of Law”:
While it makes a well-ordered society possible, but it is a means rather than an
end.”92 Dicey’s concepts in items 1-3 above are just means that must be employed
judiciously and in such a manner as to accomplish the ultimate end of ensuring a
well-ordered and peaceful setting among states.

As earlier explained, to maintain peace and order, it is not enough that

the ruling must be followed to the letter (This could mean following newly
installed US Secretary of State Rex Tillerson’s prescribed action that ‘China be
denied access to the reefs 93’). Further care must be made to ensure that
tensions in the region do not escalate. Dicey had a point that yes, enforcement
of the judgment is one of the components in saying that there is indeed Rule of
law in the SCS and WPS. However, per Chesterman’s view, the notion that all
Rule of Law concepts being put into play is synonymous to ensuring peace
and order must be done away with. One must always bear this in mind in the
consideration of full enforcement of judgment as an aspect of Rule of Law.

Moreover and as a final note, whether or not actions undertaken thereafter

would depart from the decision as they seem to appear at the present, it is of
primordial importance that ALL states continue on harping on the validity of
the decision.94

The RP vs. PRC judgment is significant not only as to provide a peaceful

resolution to the issues in the SCS and WPS. The doctrines established therein
that aim to prevent and declare illegal unilateral claiming by states of vast
maritime zones can likewise shape and influence later behaviour of states and
hopefully, effect a more stable and rules-based state conduct in seas worldwide.
Thus, to ensure Rule of Law and maintenance of peace and order in the oceans,
the significance of affirming the validity of the judgment over and over again
cannot be overemphasised.

90
Ibid.
91
Ibid.
92
Simon Chesterman, “An International Rule of Law?”, American Journal of Comparative Law,
accessed 4 February 2017 http://www.jstor.org/stable/20454616
93
“China Pushes Back After Tillerson Warns on South China Sea”, accessed 2 February 2017,
https://www.bloomberg.com/news/articles/2017-01-12/tillerson-says-china-can-t-have-access-to-
south-china-sea-isles
94
i.e. should RP enter into bilateral negotiations with PRC, it should still do so while still affirming
the validity of the judgment.

18
 ANNEX A
High Tide Elevations Low Tide Elevations Submerged
General Term: Islands Features
Fully Entitled Rock
Islands
Above water at high tide
HAS the CANNOT Art. 13 UNCLOS, Features that
capacity to “sustain human Exposed at low tide, are fully
“sustain human habitation or covered with water at submerged
habitation or economic life of high tide; both at high or
economic life of its own” (Art. not land territory; no low tide
its own” (Art. 121 (3), measure of
121 (3), UNCLOS) occupation or control
UNCLOS) can establish
sovereignty of
features;
sovereignty/sovereign
rights depend on its
distance to a HTE;
although its status
depends on HTE near
it, it is not land, but
merely as part of the
TS, or EEZ of that
HTE

Generate:
12 NM TS YES YES NO to ALL; NO to ALL;
Continental YES NO No entitlement to TS, No entitlement
Shelf (CS) (Art. 121 (3), EEZ or CS; No to TS, EEZ or
UNCLOS) features capable of CS; No
200 NM EEZ YES NO appropriation by features
occupation or capable of
“Sustain YES NO otherwise appropriation
human by occupation
habitation or or otherwise
economic life
on its own”

Annex A. Maritime Features vis-à-vis Entitlement to Maritime Zones (MZs)

they are capable of generating95 and General Characteristics

95
The table provides a simplistic explanation of the maritime features vis-à-vis entitlement to MZs
they are capable of generating and their General Characteristics. The Table is divided into three (3)
columns: High Tide Elevations (HTEs), Low Tide Elevations (LTEs) and Submerged Features.
The rows below provide information on each. HTEs are divided into two categories: a) Fully
entitled Islands and b) Rocks. Both are considered as High Tide Elevations or “Islands” and above
water at high tide. However, there are significant differences for a Rock to be called as such
(although it remains under the category of Island), and a Fully Entitled Island (that is not a Rock).
Based on the table, a (Fully Entitled) Island has the capacity to “sustain human habitation or
economic life of its own”, whereas, a Rock could not. Hence, a (Fully Entitled) Island is entitled

19


to more vast maritime zones under the UNCLOS as opposed to a rock. Specifically, a (Fully
Entitled) Island is entitled to 12 NM Territorial Sea (TS), 200 NM Exclusive Economic Zone
(EEZ) and Continental Shelf; whereas, among the three (3), a rock is entitled only to a 12 NM TS.
It must be emphasised that both Rocks and Fully Entitled Islands are under the general category of
an “Island”.

Whereas, Low Tide Elevations (LTEs) and Submerged Features are the same in that they are not
entitled to any MZs as there are no features for both that are capable of appropriation by
occupation or otherwise.

There is a significant difference though between an LTE and a Submerged Feature. An LTE is a
feature that is exposed at low tide, but covered with water at high tide. It is not land territory and
no measure of occupation or control can establish sovereignty of features. The
sovereignty/sovereign rights depend on its distance to an HTE. Although its status depends on
HTE near it, it is not land, but merely as part of the TS, or EEZ of that THE. Submerged features
on the other hand, are features that are fully submerged both at high or low tide.

20
 ANNEX B
Commentary

1. The tribunal ruled that for claims based on “historic rights” to be

declared as valid, it must be shown that these rights claimed are formed through:
(a) continuous exercise of claimed right by the State asserting the claim and (b)
acquiescence on the part of the affected states 96 . This dual requirement,
especially (b), prevents situations of other states claiming vast maritime zones on
the basis of historic rights unilaterally and without any care for possible claims on
“historic rights” as well by other states.

2. The same principle of preventing unilateral claiming of states of

vast maritime zones with ease is employed when Article 121(3) of UNCLOS was
clarified for the first time on the definition of “Rocks”:

“3. Rocks which cannot sustain human habitation or economic life of their
own shall have no exclusive economic zone or continental shelf.”

This stringent requirement of proving that the feature can sustain human
habitation or economic life of its own before a feature can be classified as an
“island” (hence entitled to 200 NM EEZ) prevents states from claiming vast
maritime zones with ease. It precludes situations wherein states conveniently call
a feature an “island” and assigning a handful of military people there to guard it to
claim a more expansive 200 NM EEZ, wherein in fact, there is no actual
community of people continuously inhabiting it or performing economic activities
who are supposed to benefit from the 200 NM EEZ. Be it noted that during the
negotiations of the UNCLOS, the vast 200 NM EEZ was a compromise and was
granted to states specifically so that exploitation of resources there would benefit
the inhabitants of the island living therein.97 If there is no such living community,
then there is no point in granting access to rights to that much larger area (200
NM), as opposed to only 12 NM, if it is just considered as a “rock”.

Complete Listing of the Significant Legal Doctrines of the Case

1. The case solidified compulsory arbitration under Annex VII of the
UNCLOS as a valid means to settle disputes.98

96
Republic of Philippines v. The People's Republic of China, PCA case No. 2013-19, Award, 12
July 2016, para. 265, p.113 (hereinafter, Award).
97
See Award, par. 621.
98
Jay Batongbacal. “Arbitration 101: Philippines vs. China”. (accessed 2 January 2017).
https://amti.csis.org/arbitration-101-philippines-v-china/

21
 2. The award addressed unanswered and significant questions on
jurisdiction and admissibility. Particularly, it ruled that:

e. PRC’s non-participation to the arbitration case at any stage is not a

ground to dismiss the case.

The general rule in institution of suits is that everyone has a right to

due process. That is, if a state is not able to be heard and defend itself before the
court, a judgment rendered against it has no binding effect. This covers states that
have suits filed against it in international courts such as PRC. PRC contends that
as it has not appeared before the tribunal and explained its position, judgment
rendered against it has no binding effect.

However, in the instant case, an exception was applied by the arbitral

tribunal99. The tribunal ruled that PRC was given notice in every step of the suit
and multiple chances to explain its side and defend itself. PRC refused to avail of
the opportunities given to it pursuant to procedural rules and RP will not be
prejudiced by this refusal.100

f. The RP vs. PRC101 case is not a sovereignty dispute. It is a dispute

concerning the interpretation or application of the Convention, and
thus, it is a matter within the jurisdiction of the tribunal.

PRC contends that the suit is a sovereignty dispute and not a dispute
concerning the interpretation or application of the Convention. Under Article 288
of the UNCLOS, the tribunal only has jurisdiction over disputes concerning the
interpretation or application of the Convention and NOT sovereignty disputes.
PRC contends that it is of such nature because only after the extent of CH’s
territorial sovereignty in SCS is determined can a decision be made on whether
CH’s maritime claims in SCS have exceeded the extent allowed under the

99
Article 9( Default of appearance ) of Annex VII, UNCLOS states:
“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.” x x x

“Despite CH’s non-appearance, it remains a Party to the proceedings, with the ensuing rights and
obligations, including that it will be bound by any decision of the Tribunal.” (citing, “Artic Sunrise
Case” Kingdom of Netherlands vs. Russian Federation and Nicaragua vs. United States; See
Award on Jurisdiction, para. 114, citing Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States), Merits, Judgment, ICJ Reports 1986, p. 14 at p. 24, para.
28; Arctic Sunrise (Kingdom of the Netherlands v. Russian Federation), Provisional Measures,
Order of 22 November 2013, ITLOS Reports 2013, p. 230 at p. 242, para. 51; Arctic Sunrise
Arbitration (Kingdom of the Netherlands v. Russian Federation), Award on Jurisdiction of 26
November 2014, para. 60; Arctic Sunrise Arbitration (Kingdom of the Netherlands v. Russian
Federation), Award on the Merits of 14 August 2015, para. 10.)
100
See Award, paras. 116-128, p.113.

22
Convention. 102 Further, PRC furthers that the question of the legality of CH
actions in SCS is dependent upon the resolution of the question of its sovereignty
over relevant maritime features and maritime rights derived therefrom.

The tribunal in the case disagreed with the foregoing PRC position. It
ruled that the case is a dispute concerning the status of maritime features in the
SCS. It therefore involves the interpretation and application of UNCLOS.

And even assuming arguendo that passing upon questions of sovereignty

is unavoidable, this does not render the case dismissible. As stated in the United
States Diplomatic Consular Staff in Tehran case103:

“There are no grounds to decline to take cognizance of one aspect of the

dispute merely because that disputes has other aspects, however
important.”

For as long as the case primarily involves the determination of the

status of maritime features, even if there are questions of sovereignty that are
involved, but for as long as these questions are just in the periphery, the tribunal
has jurisdiction to the case104.

g. The RP vs. PRC case is not a maritime boundary delimitation case.

PRC submitted that the subject matter of the proceedings is an integral

part of the dispute of maritime boundary delimitation between RP and PRC. Thus,
this makes the case accordingly excluded from the Tribunal’s jurisdiction under
Article 298 of the UNCLOS.”

The tribunal disagreed with this position. Following the doctrine (and in
the process, firming up the doctrine) in Nicaragua vs. Colombia that ‘Maritime
boundary delimitation does not arise unless there are overlapping maritime
entitlements’105, it outlined several steps that ought to be undertaken to determine
whether or not it is a maritime boundary delimitation case.

These steps are in the below and in this particular order:

(4) Determine the character and nature of the maritime features;

(5) Consequently, determine the entitlement to maritime zones based
on (1) and;
(6) Determine the existence of overlapping zones between the two
states asking this question

After the foregoing steps are undertaken and there were indeed
found to be overlapping zones between the two states, then the case is a maritime

102
See Award, paras. 628-633, pp 255-256.
103
United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment, ICJ
Reports 1980, p. 3 at p. 43, para. 93.
104
See Award on Jurisdiction, paras. 401, 403.
105
See Award, para. 392, p. 177.

23
boundary limitation case. PRC conflated all the steps, which the tribunal corrected
in this case. In the end, the tribunal ruled that after determining the status of
maritime features, there are no overlapping zones in this case. Hence, the case is
not a maritime boundary delimitation case.106

h. All other preliminary questions that may be applicable to states in

similar situations as RP, had been addressed in the case.

(4) RP’s act of initiating arbitration does not per se constitute an

abuse of process. To be considered as abuse of process,
requirements under the law must be proven. (What is most
noteworthy though in this case is that the arbitral tribunal avoided
passing upon this question. The tribunal ruled that the question of
whether or not there is an abuse of process will only be passed
upon by the tribunal provided that there is a “blatant showing” of
abuse. In the instant case, there is no such blatant showing of
abuse, so the tribunal even refused to consider this as a valid
question. 107)

(5) The arbitral tribunal ruled that the Parties (RP and PRC)
have already exchanged views as required by Article 283 of the
Convention108. (What is noteworthy in this case are the evidence
presented in which the tribunal considered as satisfying the
requirement that there have already been an exchange of views.
This may be instructive to states in similar circumstances as RP.)

(6) The tribunal ruled that the following instruments/statements

do not preclude recourse to compulsory settlement procedures
available under Section 2 of Part XV of the Convention. Hence,
the case can proceed109.

e) 2002 China-ASEAN Declaration on Conduct of Parties in the

SCS
f) Joint statements of the Parties referred to in pars. 231-232 of
the Award
g) Treaty of Amity and Cooperation in the Southeast Asia
h) Convention on Biological Diversity

As for (a) and (b), the tribunal stated that the non-binding nature of
these instruments and the lack of prescribed procedures do not preclude
recourse to arbitration.110 As for (c) and (d), although these are considered
as binding instruments, the lack of declaration in these instruments
specifically barring recourse to arbitration makes for arbitration still a
valid action for RP.111

106
See Award on Jurisdiction, para. 146.
107
See Award on Jurisdiction, para. 128.
108
See Award on Jurisdiction, para. 342.
109
See Award, para, 159 p. 60.
110
Ibid.
111
Ibid.

24
 3. China’s nine-dashed line was formally declared to be invalid112. In the
award, PRC’s obfuscation of its claims as encapsulated in its “nine-dashed
line” and refusal to elucidate the same before the tribunal worked against
it. This can be a warning for those claiming the said rights and refusing to
explain the same before the tribunal and courts. It was determined in this
case that PRC would not benefit from its obfuscation and hence, its claims
based on the nine dashed line were declared to be invalid.

4. The case declared that maritime entitlements are determined based on

a feature’s natural state, without consideration of its state after
human modification113 (i.e. reclamation activities).

The effect of this declaration is two-fold. For suits by states in similar

situations, they must be mindful of this fact if they are asking for a
declaration on maritime entitlements of a particular feature. Practically
speaking, this doctrine also prevents situations of states altering features
and on the basis of features that have already been altered, claim vast
maritime zones.

5. The case stated that once a state becomes a party to the UNCLOS,
historic rights contrary to UNCLOS are abandoned automatically114.

Although not particularly applied in this case 115 , its mention is very
significant. This has a profound effect for states in similar situations and a
good case for further study.

6. In making declarations regarding maritime features, the arbitral

tribunal relied on similar cases with features having same dimensions
to rule on features in SCS case (i.e. dimensions in Quitasueño in
Nicaragua vs. Colombia case116 that were considered as “rock” were made
a basis for declaration of “rocks” of maritime features in the instant
case117).

Finding validity in this practice is instructive for other states, who are in
similar situations and contemplating of filing similar suits.

Please also note that the Nicaragua vs. Colombia case was an ICJ case.
The direct manner by which the arbitral tribunal applied the doctrine in
this case decrease doubts on questions of propriety of direct application of
ICJ cases in PCA rulings118.

112
See Award, para, 238 (d) p. 100.
113
See Award, para. 511.
114
See Award, paras. 238 (d), 260 and 261.
115
The doctrine was not applied in the case because the tribunal found that PRC never had historic
rights prior to entering into UNCLOS. See Award, para. 270.
116
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, p.
624.
117
See Award, para. 480.
118
See Gilbert Guillame. “The Use of Precedent by International Judges and
Arbitrators”(accessed 25 January 2017). http://iusgentium.ufsc.br/wp-

25


content/uploads/2014/11/GUILLAUME-Gilbert.-The-use-of-precedent-by-international-judges-
and-arbitrator-2011.pdf. This article provides insights on the use of legal precedents by
International Judges and Arbitrators. It may be useful in looking into the validity of practice of
application of ICJ cases to PCA cases, such as the instant case.

26