NATIONAL

TERRITORY
WHAT COMPRISES THE PHILIPPINE TERRITORY?

The National Territory comprises the Philippine

Archipelago, with all the islands and waters embraced
therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial, and aerial domains, including
its territorial sea, the seabed, the subsoil, the insular
shelves areas.

The waters around, between, and connecting the

islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of
the Philippines. (Article I, 1987 Constitution)

PROTECTING PHILIPPINE TERRITORY

Our 1987 Constitution mandates: “The State shall

protect the nation’s marine wealth in its x x x exclusive
economic zone, and reserve its use and enjoyment ORIGIN OF THE CONFLICT: China seized Subi Reef
exclusively to Filipino citizens.” in 1988

To fulfill the State’s obligation to protect the nation’s *insert picture*

marine wealth in its exclusive economic zone, the
Philippines has filed an arbitration case against China China Seized Mischief (Panganiban) Reef in 1995
in accordance with the 1982 United Nations
*insert picture*
Convention on the Law of the Sea (UNCLOS).
In 1995, china seized Mischief Reef from the
At stake in the arbitration before an UNCLOS Annex
Philippines. Mischief Reef located 125 NM from
VII tribunal is whether the Philippines will keep or
Palawan, is a Low-Tide Elevation (LTE) within the
lose 80% of tis exclusive economic zone and 100% of
Philippines’ EEZ.
its extended continental shelf in the West Philippines
Sea. As an LTE beyond the territorial sea of any state, it is a
part of the submerged continental shelf of the
ORIGIN OF THE CONFLICT
adjacent coastal state, which is the Philippines. Under
On May 7, 2009, China submitted a note verbale to the UNCLOS, the Philippines can exploit its natural
UN and claimed “indisputable sovereignty” over all the resources or erect structures on it.
islands in the West Philippine Sea (WPS) and their
ORIGIN OF CONFLICT: China claimed Reed Bank in
“adjacent waters” encompassed by its “nine-dash line
2010
map.”
*insert picture*
This map covers the entire South China Sea (SCS)
bordering the shorelines of Vietnam, Malaysia, Brunei, PHILIPPINE CLAIM
Taiwan, and the Philippines.
What is at stake in the West Philippine Sea dispute are
It converts the huge SCS into an internal waterway or the following:
lake of China, similar to a gigantic Laguna de Bay.
 A. 80% of the Philippines’ exclusive economic CONTIGUOUS ZONE is 24 nautical miles from the
zone (EEZ), comprising 381,000 square baseline.
kilometers of maritime space; and
B. 100% of the Philippines’ extended continental CONTINENTAL SHELF is 150 nautical miles from the
shelf (ECS), estimated at over 150,000 square baseline.
kilometers of maritime space, aggregating a *insert picture*
huge maritime area of over 531,000 square
kilometers, larger than the total land area of THE UNCLOS
the Philippines of 300,000 square kilometers –
either the Philippines keeps this huge UNCLOS governs maritime disputes on overlapping
maritime space or loses it to China. maritime zones like overlapping territorial seas, EEZs
and ECSs.
THE UNCLOS
UNCLOS does not govern territorial disputes which
UNCLOS, ratified by 165 states comprising 85% of the are sovereignty or ownership issues over land
entire membership of the United Nations, is the territory like islands or rocks above water at high tide.
primary international law governing the use of the
oceans and seas of our planet. Rocks that are below water, or submerged, at high tide
are not considered land and thus disputes over such
Specifically, UNCLOS governs the use of the following rocks are governed by UNCLOS.
maritime zones:
UNCLOS provides for a compulsory dispute settlement
a. Internal Waters or Archipelagic Waters, the mechanism over maritime disputes among its member
landward waters adjacent to the territorial states, including disputes involving the interpretation or
sea; application of the provisions of UNCLOS.
b. Territorial Sea, an area of 12 nautical miles
from the baselines along the coast; DISPUTES GOVERNED BY THE UNCLOS

c. Exclusive Economic Zone (EEZ), an area of 200
China, the Philippines and all the other disputant
nautical miles from the baselines;
states in the South China Sea are parties to UNCLOS,
d. Extended Continental Shelf (ECS), an
and are thus bound by the UNCLOS compulsory
additional area of 150 nautical miles from the
dispute settlement mechanism.
outer limits of the EEZ; and
e. The High Seas area, which is the maritime zone Maritime disputes are governed primarily by UNCLOS,
beyond the ECS. The high seas belongs to all while territorial disputes are governed by the general
states, whether coastal or land-locked. rules and principles of international and within the
consensual jurisdiction of the International Court of
*insert picture*
Justice.
IMPORTANT DEFINITIONS
MARITIME DISPUTES VS. TERRITORIAL DISPUTES
EXCLUSIVE ECONOMIC ZONE is an area beyond and
Maritime disputes are subject to compulsory
adjacent to the territorial sea, which shall not extend
arbitration because under UNCLOS, a party state has
beyond 200 nautical miles from the baseline from
given its advance consent to compulsory arbitration,
which the territorial sea is measured.
unless a State has opted out of compulsory arbitration
TERRITORIAL SEA is 12 nautical miles from the involving certain specified disputes.
baseline.
In contrast, territorial disputes can be subject to
arbitration only with the consent of each disputant
state to every arbitration, unless such consent has WHAT IS THE BASIS OF THE PHILIPPINES’ CLAIM?
been given in advance in a treaty.
Low-Tide Elevations or LTEs are rocks above water at
There is no such treaty between the Philippines and low tide but below water, or submerged, at high tide.
China involving compulsory arbitration of territorial LTEs are not land but part of the submerged
disputes. continental shelf.

The Philippines’ arbitration case against China is Under UNCLOS, LTEs beyond the 12 nautical miles
solely a maritime dispute and does not involve any territorial sea are not capable of appropriation by any
territorial dispute. state.

WHAT IS THE NATURE AND PURPOSE OF THE As part of the submerged continental shelf, LTEs
ARBITRATION CASE FILED BY THE PHILIPPINES beyond the territorial sea but within the EEZ of a
AGAINST CHINA? coastal state are subject to the sovereign rights of such
coastal state.
The Philippines asked the tribunal if China’s 9-dashed
lines can negate the Philippines’ EEZ as guaranteed Thus, LTEs in the Spratlys within the 200 NM EEZ of
under UNCLOS. the Philippines, like Mischief Reef and Subi Reef, are
subject to the sovereign rights of the Philippines.
The Philippines also asked the tribunal if certain rocks
above water at high tide, like Scarborough Shoal, Under UNCLOS, only the Philippines can construct
generate a 200 nautical miles EEZ or only a 12 structures on LTEs within its EEZ.
nautical miles territorial sea.

The Philippines further asked the tribunal if China can WHY DID THE PHILIPPINES FILE AN ARBITRAL
appropriate low-tide elevations (LTEs), like Mischief CASE AGAINST CHINA?
Reef and Subi Reef, within the Philippines’ EEZ.
The Philippines is the only country to have resorted to
WHAT IS THE NATURE AND PURPOSE OF THE compulsory arbitration (under Article 287 and Annex
ARBITRATION CASE FILED BY THE PHILIPPINES VII of the UNCLOS) against China with its case resting
AGAINST CHINA? on at least 5 key arguments.

These disputes only involve the interpretation or Primarily, the Philippines is questioning China’s claim
application of the provisions of UNCLOS. to “historical rights” over the South China Sea based
on a range of dubious claims and ancient maps.
The Philippines is not asking the tribunal to delimit by
nautical measurements overlapping EEZs between These, in turn, constitute the foundations of its
China and the Philippines. notorious 9-dashed line claims.

The Philippines is also not asking the tribunal what THE CASE OF THE PHILIPPINES
country has sovereignty over an island, or rock above
The Philippines has also called on the Tribunal to
water at high tide, in the West Philippine Sea.
clarify (under Article 12 of the UNCLOS) the nature of
IMPORTANT QUESTIONS the disputed features in the South China Sea.

1. Why did the Philippines file an arbitral case
against China?
2. What are the key points in the arbitral award
in favor of the Philippines?
3. How can its judgment be enforced?
While Beijing tends to characterize most of these If China’s claim was upheld, the Philippines would
features as islands, which can generate their own 200 have lost 80% of its EEZ in the West Philippine Sea.
nautical miles EEZ and continental shelves, Manila
instead claims that at most they are only rocks and *insert picture*
high-tide elevations, which can generate a maximum WHAT ARE THE KEY POINTS IN THE ARBITRAL
of 12 nautical miles territorial seas. AWARD?
WHAT IS THE PHILIPPINES CLAIMING? 2. Reclaimed islands have no exclusive economic
The Philippines is asking the tribunal if China’s 9- zone: “The Tribunal noted that the current
dashed lines can negate the Philippines’ EEZ as presence of official personnel on many of the
guaranteed under UNCLOS. features is dependent on outside support and
not reflective of the capacity of the features…
The Philippines is also asking the tribunal if certain (and) …that none of the Spratly Islands is
rocks above water at high tide, like Scarborough Shoal, capable of generating extended maritime
generate a 200 nautical miles EEZ or only a 12 nautical zones.
miles territorial sea.
“The Tribunal found that it could – without delimiting
The Philippines is further asking the tribunal if China a boundary – declare that certain sea areas are within
can appropriate low-tide elevations (LTEs), like the exclusive economic zone of the Philippines,
Mischief Reef and Subi Reef, within the Philippines’ because those areas are not overlapped by any
EEZ. possible entitlement of China.”

These disputes involve the interpretation or

application of the provisions of UNCLOS. QUESTION: Recent land reclamation by China has
dramatically transformed seven disputed maritime
The Philippines is not asking the tribunal to delimit by features in the Spratly Islands at the West Philippine
nautical measurements overlapping EEZs between Sea.
China and the Philippines.
For example, in 1995 Subi Reef was completely
WHAT ARE THE KEY POINTS IN THE ARBITRAL submerged at high tide. Today, there are 3.9 million
AWARD? square meters of reclaimed land above water at high
tide on Subi Reef, and it is home to a pair of wooden
1. The so-called 9-dash line is invalid: “The
barracks, communications array, and helipad. There
tribunal concluded that there was no legal
are similarly stark changes at each of the other reefs.
basis for China to claim historic rights to
resources within the sea areas falling within Will China’s reclamation activities entitle it to claim
the 9-dash line.” maritime rights over its newly created territories? Is
reclamation a valid mode of acquiring territory?
Under UNCLOS, every coastal state is entitled to a 200
Explain.
NM EEZ, subject to boundary delimitation in case of
overlapping EEZs with other coastal states. ANSWER: (According to the Tribunal Award): NO.
Artificial islands do not generate maritime
China claims almost 90% of the South China Sea under
entitlements.
its so-called 9-dashed line map, which overlaps 80% of
the Philippines’ EEZ in the West Philippine Sea. According to UNCLOS, an island is: “a naturally formed
area of land, surrounded by water, which is above
The tribunal declared this 9-dash line as a clear
water at high tide.” Reclamation is obviously not a
violation of the UNCLOS. This is very important.
mode of acquiring territory under international law
because reclaimed land cannot be considered “a The Tribunal ruled that China’s refusal to appear does
naturally formed area of land.” not negate the consent that it has given to the
compulsory jurisdiction of the arbitral tribunal when
The reefs reclaimed by China are considered as low it signed the UNCLOS.
tide elevations. The UNCLOS defines these maritime
features as landmass above water only at low tide. 6. Beijing has damaged the environment: China’s
Outside an existing territorial sea it is not entitled to a large-scale land reclamation has “caused
separate maritime zone. It is unable to sustain human severe harm to the coral reef environment and
habituation or economic life on its own. violated its obligation to preserve and protect
fragile ecosystems.”
It is therefore NOT entitled to a territorial sea and
contiguous zone or other maritime rights.

WHAT ARE THE KEY POINTS IN THE ARBITRAL WHAT ARE THE KEY POINTS IN THE ARBITRAL
AWARD? AWARD?

3. China has behaved unlawfully: “China had 7. Island building should have stopped during
violated the Philippines’ sovereign rights in its the dispute process: The panel said it had no
exclusive economic zone. The Tribunal further jurisdiction over the military standoff at
held that Chinese law-enforcement vessels had Second Thomas Shoal were Chinese and
unlawfully created a serious risk of collision Philippine military and law enforcement
when they physically obstructed Philippine vessels are locked in confrontation.
vessels.”
However, “China’s recent large-scale reclamation and
4. Mischief Reef and Second Thomas Shoal are
construction of artificial islands was incompatible
part of the exclusive economic zone and
with the obligations on a state during dispute
continental shelf of the Philippines.
resolution proceedings, insofar as China has…
The Tribunal ruled that all constructed infrastructure destroyed evidence of the natural condition of
in the reef and shoal should now be turned over to the features of the South China Sea that formed part of the
Philippines. Parties’ dispute.”

WHAT ARE THE KEY POINTS IN THE ARBITRAL

WHAT IS THE PHILIPPINES’ RESPONSE?
AWARD?
The Philippines’ response is to assert its control and
5. China’s non-participation will not affect the
ownership of the disputed islands by exercising
jurisdiction of the tribunal.
effective occupation thereof.
Article 9 of the Annex VII UNCLOS, default of
Since the Philippines does not have enough funds to
appearance and Article 25 of the Rule of Procedure of
reclaim and build artificial islands and no naval power
the Arbitral Tribunal both state that the non-
to take-over any habitable island – we decided to
appearance of one party will not constitute a bar to
maroon BSP Sierra Madre in the Second Thomas Shoal
the proceedings and at the same time require the
(Scarborough).
tribunal to “satisfy itself that it has jurisdiction and
that claim is well-founded in fact and in law.” This now serves as temporary headquarters to several
naval personnel who are currently occupying a
portion of the disputed reefs.
HOW CAN THE JUDGMENT BE ENFORCED?

The UNCLOS dispute settlement system does not

contain an enforcement mechanism comparable to
that of the ICJ with the Security Council, at least in
theory.

This means that should China refuse to comply with a

decision perceived to be unfavorable to its interests, it
is unlikely that there can be any legal sanctions
against such non-compliance.

The reaction of non-appearing States in the aftermath

of an advance decision has been varied.

Despite affirming its rejection to the judgment of the

Court, some non-appearing parties have eventually
taken courses of action that were in compliance with
the final award.

HOW WERE PREVIOUS JUDGMENT ENFORCED?

For example, in the Artic Sunrise case, Russia

announced that it would not comply with the
provisional measure prescribed by ITLOS. However,
nearly half a year after the provisional measure was
handed down, it did release the activists and the ship,
albeit – Moscow insisted – pursuant to a domestic
decision and not the ITLOS order.

In the Nicaragua case, the US persistently defied the

judgment of the ICJ and refused to enter into any
negotiation with Nicaragua on compensation.
Nicaragua attempted to enforce the judgment through
various mechanisms including recourse to the
Security Council and the General Assembly, until the
US relented.