Philippines v.

China (PCA case number 2013–19), also known as the South China Sea Arbitration, was an
arbitration case brought by the Republic of the Philippines against the People's Republic of China under Annex
VII to the United Nations Convention on the Law of the Sea (UNCLOS) concerning certain issues in the South
China Sea including the legality of China's Nine-dash line.[2]
On 19 February 2013, China declared that it would not participate in the arbitration.[3] On 7 December 2014,
a white paper was published by China to elaborate its position.[4][5] On 29 October 2015, the arbitral
tribunal ruled that it has jurisdiction over the case,[6] taking up seven of the 15 submissions made by the
Philippines.[7]
On 12 July 2016, the Permanent Court of Arbitration ruled in favor of the Philippines. It clarified that it would
not "...rule on any question of sovereignty over land territory and would not delimit any maritime boundary
between the Parties".[8][9] The tribunal also ruled that China has "no historical rights" based on the "nine-dash
line" map.[8][9] China has rejected the ruling, as has Taiwan.[10][11]
The dispute has been affected by the fact that, after Japan renounced all claims to the Spratly Islands and
other conquered islands and territories in the Treaty of San Francisco and Treaty of Peace with the Republic of
China (Taiwan) signed on 8 September 1951, it did not indicate successor states[12] since China was not
invited to the treaty talks held in San Francisco. In reaction to that, on 15 August, the Chinese government
issued the Declaration on the Draft Peace Treaty with Japan by the US and the UK and on the San Francisco
Conference by the then Foreign Minister Zhou Enlai, reiterating China's sovereignty over the archipelagos in
the South China Sea, including the Spratly Islands, and protesting about the absence of any provisions in the
draft on who shall take over the South China Sea islands following Japan's renouncement of all rights, title and
claim to them. It reiterated that "the Chinese government of the day had taken over those islands" and that the
PRC's rightful sovereignty "shall remain intact".[13]
On 28 April 1952, the United States presided over the signing of the Treaty of Peace between Japan and the
Republic of China. Article 2 of the document provided that "It is recognized that under Article 2 of the Treaty of
Peace which Japan signed at the city of San Francisco on 8 September 1951 (hereinafter referred to as the
San Francisco Treaty), Japan has renounced all right, title, and claim to Taiwan (Formosa) and Penghu (the
Pescadores) as well as the Spratly Islands and the Paracel Islands."[13]
The Philippines bases its claim on its geographical proximity to the Spratly Islands.[14]
In May 1956, the dispute escalated after Filipino national Tomas Cloma and his followers settled on the islands
and declared the territory as "Freedomland", now known as Kalayaan for himself and later requested to make
the territory a protectorate of the Philippines.[15] Tomas Cloma even stole China (ROC)'s national flag from the
Taiping Island. In July 1956, he apologized officially for his act and he surrendered the flag he stole to China's
embassy in Manila. On 2 October 1956, he wrote a letter and ensured he would not make further training
voyages or landings in the territorial waters of China (ROC).[16]
Philippine troops were sent to three of the islands in 1968,[15] when the Philippines were under
President Ferdinand Marcos. In the 1970s, some countries began to invade and occupy islands and reefs in
the Spratlys.[17][18] The Spratlys were placed under the jurisdiction of the province of Palawan in 1978.[15]
The People's Republic of China (PRC) claims it is entitled to the Paracel and Spratly Islands because they
were seen as integral parts of the Ming dynasty.[14] China and Taiwan have these same territorial
claims.[14] The Republic of China (Taiwan) took control of the largest island - Taiping Island - in the group since
1946.[15]
Vietnam states that the islands have belonged to it since the 17th century, using historical documents of
ownership as evidence.[14] Hanoi began to occupy the westernmost islands during this period.[14]
In the early 1970s, Malaysia joined the dispute by claiming the islands nearest to it.[19]
Brunei also extended its exclusive economic zone, claiming Louisa Reef.[19]
Optional exceptions to applicability of compulsory procedure[edit]
Article 298 of Section 3 of Part XV of the Convention provides optional exceptions to applicability of
compulsory procedures provided in Section 2. China made declaration in accordance with the UN Convention
on the Law of the Sea in 2006 not to accept any of the procedures provided for in section 2 of Part XV of the
Convention. Many countries including the United Kingdom, Australia, Italy, France, Canada, and Spain made
similar declarations to reject any of the procedures provided for in sections 2 of Part XV of the Convention with
respect to the different categories of disputes.[20][21]
Philippine stance[edit]

Map of Pedro Murillo Velarde, 1774

The Philippines contended that the "nine-dotted line" claim by China is invalid because it violates the UNCLOS
agreements about exclusive economic zones and territorial seas.[23] It says that because most of the features
in the South China Sea, such as most of the Spratly Islands, cannot sustain life, they cannot be given their
own continental shelf as defined in the convention.[24]
Chinese stance[edit]

China's nine-dotted line claimover the South China Sea, 1947

China refused to participate in the arbitration, stating that several treaties with the Philippines stipulate that
bilateral negotiations be used to resolve border disputes. It also accuses the Philippines of violating the
voluntary Declaration on the Conduct of Parties in the South China Sea, made in 2002 between ASEAN and
China, which also stipulated bilateral negotiations as the means of resolving border and other
disputes.[25][26][27] China issued a position paper in December 2014 arguing the dispute was not subject to
arbitration because it was ultimately a matter of sovereignty, not exploitation rights.[28] Its refusal will not
prevent the PCA tribunal from proceeding with the case.[29] After the award ruling, the PRC issued a statement
rejecting it as 'null' and having decided not to abide by the arbitral tribunal's decision, said it will "ignore the
ruling".[30]
Taiwanese stance[edit]
The arbitral tribunal has not invited Taiwan to join the arbitration, and no opinion of Taiwan has been
sought.[31] The Philippines claimed that Taiping Island is a rock. In response,[32] President Ma Ying-jeou of the
Republic of China on Taiwan rejected the Philippines' claim as "patently false".[33] Taiwan invited the
Philippines and five arbitrators to visit Taiping Island; the Philippines rejected the invitation, and there was no
response from the PCA tribunal.[34]
Vietnamese stance[edit]
On 11 December 2014, Vietnam filed a statement to the tribunal which put forward three points: 1) Vietnam
supports the filing of this case by the Philippines, 2) it rejects China's "nine-dashed line", and 3) it asks the
PCA tribunal to take note of Vietnam's claims on certain islands such as the Paracels.[35]
Other stances[edit]
Brunei sent its own UNCLOS claim through a preliminary submission prior to the arbitration. [36] In May 2009,
Malaysia and Vietnam, as well as Vietnam alone, filed claims to the International Tribunal for the Law of the
Sea with regard to the islands[clarification needed]. This was in relation to extending their claimed continental shelves
and Exclusive Economic Zones. The People's Republic of China rejected the claims since those violate the
"nine-dotted line". The Philippines challenged the Malaysian claim stating that the claims overlap with the North
Borneo dispute.[37]
Indonesia made a comment on China's claim by saying that the features are rocks and cannot sustain life,
effectively calling the Chinese claim invalid. The Philippines echoed Indonesia's claims, further stating that the
islands belong to them through geographic proximity.[37][38]
Arbitration[edit]
Hearings[edit]
On 7 July 2015, case hearings began with the Philippines asking the tribunal to invalidate China's claims. The
hearings were also attended by observers from Indonesia, Japan, Malaysia, Thailand and Vietnam.[6] The case
has been compared to Nicaragua v. United States due to similarities of the parties involved such as that
a developing country is challenging a permanent member of the United Nations Security Council in an arbitral
tribunal.[39]
On 29 October 2015, the PCA tribunal ruled that it had the power to hear the case. It agreed to take up seven
of the 15 submissions made by Manila, in particular whether Scarborough Shoal and low-tide areas like
Mischief Reef can be considered islands. It set aside seven more pointed claims mainly accusing Beijing of
acting unlawfully to be considered at the next hearing on the case's merits. It also told Manila to narrow down
the scope of its final request that the judges order that "China shall desist from further unlawful claims and
activities."[7]
The arbitral tribunal scheduled the hearing on merits of the case from 24 to 30 November 2015.[40]
Award on Jurisdiction and Admissibility[edit]
On 29 October 2015, the PCA published the award by the tribunal on Jurisdiction and Admissibility[41] for the
case. The tribunal found that it has jurisdiction to consider the following seven Philippines' Submissions. (Each
number is the Philippines' Submissions number.) The tribunal reserved consideration of its jurisdiction to rule
on Nos. 1, 2, 5, 8, 9, 12, and 14.
 No.3 Philippines'position that Scarborough Shoal is a rock under Article 121(3).
 No.4 Philippines' position that Mischief Reef, Second Thomas Shoal, and Subi Reef are low tide elevations
that do not generate entitlement to maritime zones.
 No.6 Whether Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations "that do
not generate any maritime entitlements of their own".
 No.7 Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an entitlement
to an exclusive economic zone or continental shelf.
 No.10 "premised on [the] fact that China has unlawfully prevented Philippine fishermen from carrying out
traditional fishing activities within the territorial sea of Scarborough Shoal."
 No.11 "China's failure to protect and preserve the marine environment at these two shoals [Scarborough
Shoal and Second Thomas Shoal]."
 No.13 Philippines’ protest against China's "purported law enforcement activities as violating the Convention
on the International Regulations for the Prevention of Collisions at Sea and also violating UNCLOS".
The tribunal stated in the award that there are continuing disputes in all of the 15 submissions from the
Philippines,[41] but for submissions such as No.3, No.4, No.6 and No.7, no known claims from the Philippines
prior to the initiation of this arbitration exist, and that China was not aware of (nor had previously opposed)
such claims prior to the initiation of arbitration. The Chinese Society of International Law (CSIL) has stated that
the tribunal was trying to hide its incapability to prove that maritime entitlements of the nine features constitute
the essence of the disputes.[4]
For Submissions No.8 to No.14, the tribunal held the view that the lawfulness of China's maritime activities in
the South China Sea is not related to sovereignty. CSIL has asserted that the disagreements do concern
territorial sovereignty, and constitute no dispute with respect to the claims advanced by the Philippines. [4]
Award[edit]
On 12 July 2016, the Permanent Court of Arbitration published an arbitration award by the tribunal which it
states is final and binding as set out in the Convention.[30][42] Conclusions expressed in the award included the
following:
Regarding the "Nine-Dash Line" and China's claim in the maritime areas of the South China Sea[43]
 The [UNCLOS] Convention defines the scope of maritime entitlements in the South China Sea,
which may not extend beyond the limits imposed therein.[44]
 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 Convention
superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits
imposed therein.[45]
Regarding the status of features as above/below water at high tide (Submissions no. 4 and 6)
 High-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson
Reef, (e) McKennan Reef, and (f) Gaven Reef (North).[46]
 Low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e)
Second Thomas Shoal.[47]
 Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin
Cowe Island, Gaven Reef (South) lies within 12 nautical miles of the high-tide features at Gaven
Reef (North) and Namyit Island, and that Subi Reef lies within 12 nautical miles of the high-tide
feature of Sandy Cay on the reefs to the west of Thitu.[48]
Regarding the status of features as rocks/islands (Submissions no. 3, 5, and 7)
 Scarborough Shoal contains, within the meaning of Article 121(1) of the Convention, naturally
formed areas of land, surrounded by water, which are above water at high tide. However, under
Article 121(3) of the Convention, the high-tide features at Scarborough Shoal are rocks that cannot
sustain human habitation or economic life of their own and accordingly shall have no exclusive
economic zone or continental shelf.[49]
 Johnson Reef, Cuarteron Reef, and Fiery Cross Reef contain, within the meaning of Article 121(1)
of the Convention, naturally formed areas of land, surrounded by water, which are above water at
high tide. However, for purposes of Article 121(3) of the Convention, the high-tide features at
Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are rocks that cannot sustain human
habitation or economic life of their own and accordingly shall have no exclusive economic zone or
continental shelf.[50]
 The high-tide features at Gaven Reef (North) and McKennan Reef are rocks that cannot sustain
human habitation or economic life of their own and accordingly shall have no exclusive economic
zone or continental shelf.[51]
 Mischief Reef and Second Thomas Shoal are both low-tide elevations that generate no maritime
zones of their own [and] that none of the high-tide features in the Spratly Islands are capable of
sustaining human habitation or an economic life of their own within the meaning of those terms in
Article 121(3) of the Convention. All of the high-tide features in the Spratly Islands are therefore
legally rocks for purposes of Article 121(3) and do not generate entitlements to an exclusive
economic zone or continental shelf. There is, accordingly, no possible entitlement by China to any
maritime zone in the area of either Mischief Reef or Second Thomas Shoal and no jurisdictional
obstacle to the tribunal's consideration of the Philippines' Submission No. 5.[52]
 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.[53]
Regarding alleged interference with the Philippines' sovereign rights in its EEZ and continental shelf
(Submission no. 8)
  China has, through the operation of its marine surveillance vessels with respect to M/V Veritas
Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the
Philippines' sovereign rights over the non-living resources of its continental shelf in the area of
Reed Bank [and] that China has, by promulgating its 2012 moratorium on fishing in the South China
Sea, without exception for areas of the South China Sea falling within the exclusive economic zone
of the Philippines and without limiting the moratorium to Chinese flagged vessels, breached Article
56 of the Convention with respect to the Philippines’ sovereign rights over the living resources of its
exclusive economic zone.[54]
Regarding alleged failure to prevent Chinese nationals from exploiting the Philippines' living resources
(Submission no. 9)
 China has, through the operation of its marine surveillance vessels in tolerating and failing to
exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second
Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines' sovereign rights with
respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations
under Article 58(3) of the Convention.[55]
Regarding China's actions in respect of traditional fishing at Scarborough Shoal (Submission no. 10)
 China has, through the operation of its official vessels at Scarborough Shoal from May 2012
onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing at
Scarborough Shoal.[56]
Regarding alleged failure to protect and preserve )the marine environment (Submissions no. 11 and
12(B))
 China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels
engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second
Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the
Convention.[57]
 China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1),
194(5), 197, 123, and 206 of the Convention.[58]
Regarding occupation and construction activities on Mischief Reef (Submission no. 12)
 China has, through its construction of installations and artificial islands at Mischief Reef without the
authorisation of the Philippines, breached Articles 60 and 80 of the Convention with respect to the
Philippines' sovereign rights in its exclusive economic zone and continental shelf [and], as a low-
tide elevation, Mischief Reef is not capable of appropriation.[59]
Regarding operation of law enforcement vessels in a dangerous manner (Submission no. 13)
 China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of
Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and
personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS
and, as a consequence, to be in breach of Article 94 of the Convention.[60]
Regarding aggravation or extension of the dispute between the parties (Submission No. 14)
 China has in the course of these proceedings aggravated and extended the disputes between the
Parties through its dredging, artificial island-building, and construction activities [in several
particulars itemized in the award].[61]
Regarding the future conduct of the parties (Submission no. 15)
 Both Parties are obliged to comply with the Convention, including its provisions regarding the
resolution of disputes, and to respect the rights and freedoms of other States under the Convention.
Neither Party contests this.[62]

Introduction
Since the 1970s, the South China Sea has been a nest of competing sovereignty claims over the island
features and ocean spaces by a number of adjacent countries. Included in this is China’s nine-dash line, first
officially communicated in notes verbale to the United Nations in 2009.[1] In addition, China has recently
engaged in, amongst other things, the physical enhancement of many of the small features of the Spratly
Islands and enforcement of a moratorium on fishing in the South China Sea.
The decision of the South China Sea Arbitration[2] by a tribunal established pursuant to the UN Convention on
the Law of the Sea[3] (UNCLOS) has landed in this cauldron. UNCLOS provides for compulsory adjudication of
disputes concerning the interpretation and application of the Convention, subject to a number of exceptions. In
2013, the Philippines commenced the case against China.[4]Although a long-standing party to the Convention,
China declined to participate in the establishment of the Tribunal or to appear before it.[5] In deciding not to
appear, China has followed a small number of states that have similarly declined to participate in cases before
the International Court of Justice (ICJ), as well as the more recent nonparticipation by the Russian Federation
in UNCLOS procedures in the Arctic Sunrise Case brought by the Netherlands.[6]
There were fifteen Philippine Submissions dealt with by the Tribunal.[7] The Submissions that have received
the most post-decision attention and that are the focus of this Insight include the legal validity of China’s claim
of rights within the nine-dash line in light of UNCLOS and what—if any—maritime zones appertain to the
insular features in the South China Sea.
China viewed the principal subject matters in dispute as political and beyond the jurisdiction and competence
of the Tribunal. The Philippines characterized the subject matters in dispute as involving the interpretation and
application of UNCLOS and thus within the jurisdiction of the Tribunal. As a result of this difference of views, it
was necessary for the Tribunal to assess whether it had jurisdiction to deal with the merits of the Philippine
submissions.
The Tribunal held that it had jurisdiction to consider the merits of almost all the Submissions made by the
Philippines and, overall, accepted the claims and arguments on the merits asserted by the Philippines.[8]
Legal Status of the Award
UNCLOS, the international legal basis for the arbitration, is very clear in Annex VII, Arbitration, Article 11 that
“[t]he award of the arbitral tribunal shall be final and binding and without appeal . . . . It shall be complied with
by the parties to the dispute.”[9]
Hence, there is no argument to be made that nonappearance by a state changes or effects the “final and
binding” nature of the Award. Moreover, while China has asserted both after the release of the 2015 Award on
Jurisdiction and the 2016 Award that the both are “null and void” and have “no binding force,”[10] there is no
legal basis in UNCLOS for such assertions.
China has further stated that it “neither accepts nor recognizes” the Award.[11] There is a modest practice of
states opting not to accept or recognize, and thus not comply with, decisions of the ICJ, the International
Tribunal for the Law of the Sea (ITLOS), and a tribunal established pursuant to UNCLOS.
Rocks/Low-Tide Elevations or Islands
Jurisdiction
The Philippines argued that the Tribunal had jurisdiction to determine whether certain insular features in the
South China Sea were either rocks (entitled to a 12 nm territorial sea), low-tide elevations no territorial sea), or
islands (entitled to a 200 nm zone), even though the features in question were subject to territorial sovereignty
disputes, as this involved interpretation of the relevant provisions of UNCLOS.[12]
China directly countered this, arguing that the heart of the dispute concerned territorial sovereignty, not the
“interpretation or application” of UNCLOS. [13] In the alternative, China argued that the rock-or-island
determination concerned maritime boundary delimitation, which, as result of China’s Declaration of August 26,
2006,[14] was exempted from compulsory adjudicative jurisdiction under UNCLOS.[15]
In reaching the conclusion that it had jurisdiction to determine the status of the contested features, the Tribunal
stated that it “does not accept . . . that it follows from the existence of a dispute over sovereignty that
sovereignty is also the appropriate characterization” of the Philippine claims that the features were rocks or
low-tide elevations.[16] In making this determination, it noted that none of the Philippine Submissions required
a determination of sovereignty. [17]
The Tribunal did not accept China’s assessment of the dispute as involving maritime boundary delimitation,
stating that it was “not convinced,” and that “[i]t does not follow . . . that a dispute over an issue that may be
considered in the course of a maritime boundary delimitation constitutes a dispute over maritime boundary
delimitation itself.”[18] More specifically, the Tribunal commented that entitlement to maritime zones “is distinct”
from delimitation of those zones in an area where entitlements overlap.”[19]
Merits
In the period immediately prior to the issuing of the Award, China had significantly modified and enhanced
numerous features in the Spratly Islands. The Tribunal clearly stated that UNCLOS “requires that the status of
a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human
habitation.”[20]
The Tribunal accepted that in order to examine the Submissions regarding the location of the Philippine
exclusive economic zone (EEZ), it was necessary to determine the legal status of all of the relevant high-tide
features that are part of the Spratly Islands.[21] The Tribunal focused upon the six largest features, observing
that if these were characterized as rocks under UNCLOS, then the same conclusion would apply to the other
high-tide features in the Spratly Islands.[22]
Unlike previous international tribunals that had accepted certain features as islands or rocks without explicitly
applying UNCLOS Article 121(3),[23] the Tribunal analyzed its application in detail.[24] The Tribunal’s
interpretation placed great emphasis on the physical conditions of the feature in question such as “the natural
capacity, without external additions . . . to sustain human habitation or an economic life of its own.”[25] The
Tribunal also delved into the definition of the terms involved in this standard. Additionally, the Tribunal directed
that where the physical conditions did not determine clearly whether a feature is a rock or island then the
historical use will be relevant. In this regard, the Tribunal concluded “that a feature that has never historically
sustained a human community lacks the capacity to sustain human habitation.”[26]
Applying their understanding of Article 121(3) to the relevant high-tide features in the Spratly Islands, the
Tribunal noted that although the features were “capable of enabling the survival of small groups of
people”[27] and that the features could not be “dismissed as uninhabitable on the basis of their physical
characteristics,” nevertheless, there was “no indication that anything fairly resembling a stable human
community has ever formed on the Spratly Islands” with the result that all of the high-tide features were
classed as rocks.[28]
The Nine-Dash Line and Historic Rights[29]
The principal jurisdictional question concerning the nine-dash line and possible Chinese historic rights therein
was whether such a claim was captured by the wording of Article 298(1)(a)(i) of UNCLOS, covering “disputes .
. .involving historic bays or title”[30] and thus that the Tribunal was without jurisdiction due to China’s 2006
Declaration.[31] On the merits, at issue was the relationship between the historic rights asserted by China
within the nine-dash line and the rights of the Philippines based on UNCLOS in areas beyond China’s EEZ or
continental shelf and within the EEZ or continental shelf of the Philippines.
To deal with both questions, the Tribunal assessed “the nature of any historic rights claimed by China” within
the nine-dash line, which was “complicated by some ambiguity in China’s position.”[32] The Tribunal undertook
an examination of China’s statements and actions[33] concluding “that China claims rights to living and non-
living resources within the ‘nine-dash line’ but (apart from the territorial sea generated by any islands) does not
consider that those waters form part of its territorial sea or internal waters.”[34]
The Tribunal indicated that the term historic title in Article 298 centered on the historic title wording in Article
12(1) of the 1958 Convention on the Territorial Sea and Contiguous Zone.[35] The Tribunal took the view that
the 1958 “historic title” wording was tied directly to the historic terminology as used in the 1951 Anglo-
Norwegian Fisheries case, where the area in question was “an area of sea claimed exceptionally as internal
waters.”[36] Based upon this, the Tribunal took the view that the meaning of historic title in Article 298 was
“claims to sovereignty over maritime areas derived from historical circumstances.”[37] Having determined that
China was claiming historic rights and not historic title, the Tribunal concluded that China’s 2006 Declaration
was not available as regards China’s historic claims.[38]
Concerning the merits, the relationship between the historic rights asserted by China within the nine-dash line
and the rights of the Philippines based on UNCLOS, the Tribunal sided with the Philippines concluding that
UNCLOS “leaves no space for an assertion of historic rights,” and that “China’s claim to historic rights to the
living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention.”[39]
Concluding Comments
In the immediate aftermath, the reactions indicate little hope that the South China Sea Award will result in a
period of peaceful management of the tangled disputes within the South China Sea. China has loudly
condemned the Award and a joint statement from ASEAN and China did not even mention it. Somewhat more
encouraging are the preparatory talks that have taken place between the Philippines and China.[40]
It has long been recognized by those who have a significant history with the South China Sea disputes that if
the numerous maritime features in the South China Sea were all categorized as either low-tide elevation or
rocks, the result would be that the 200 nm zones in the region would be measured from the mainland coasts.
This would cause almost all of the maritime claim disputes to become bilateral, rather than multilateral, which
could in turn create a possibility for resolution and de-escalation. Part of this as well is that the nine-dash line
be without legal effect. As of 2009, the South China Sea ASEAN states advocated such a position.[41] In light
of the Tribunal’s ruling, this could be a potential path forward.
Article 121(3) was a provision of deliberately negotiated vagueness, thus Tribunal’s rock/island criteria can be
viewed perhaps as “missionary” work. The rock or island criteria in the Award may result in states able to more
readily reach maritime boundary agreements and adjudicative bodies more readily make such determinations.
It will be future tribunals, courts, and state practice that will determine whether this “missionary” aspect of the
Award finds favour.
Of final note, concerns about whether the Award and China’s rejection of it have undermined confidence in
UNCLOS dispute resolution procedures are perhaps misplaced. Subsequent to the commencement of
the South China Sea Arbitration, three parties have brought cases before ITLOS and two have commenced
UNCLOS, Annex VII arbitration cases.