What is the dispute in the West Philippine
Sea?
China claims “indisputable sovereignty”
over all the waters, islands, reefs, rocks,
seabed, minerals, and living and non-living
resources falling within its 9-dashed line
claim in the South China Sea. The 9-dashed
line area comprises almost 90% of the total
area of the South China Sea. China’s 9-
dashed line claim encroaches on 80% of
the Philippines’ 200-nm exclusive economic
zone (EEZ) and 100% of its 150-nm
extended continental self (ECS) facing the
South China Sea – what the Philippines
calls the West Philippines Sea. China’s 9-
dashed line claim has similar effects on the
EEZs and ECSs of Vietnam, Malaysia,
Brunei and Indonesia facing the South
China Sea. The countries most adversely
affected by China’s 9-dashed line claim, in
terms of the size of the area encroached by
the 9-dashed line claim, are the Philippines,
Vietnam, Malaysia, Brunei and Indonesia, in
that order.
Is there an international law that governs
the resolution of the West Philippine Sea
dispute?
The 1982 United Nations Convention on the
Law of the Sea, or UNCLOS, which entered
into force in 1994, governs the conflicting
maritime claims in the South China Sea. All
the claimant states in the South China Sea
dispute, including the Philippines and
China, have ratified UNCLOS. UNCLOS is
the Constitution for the world’s oceans and
seas. UNCLOS codified the then existing
customary international law of the sea,
created novel entitlements in favor of
coastal and landlocked states, and adopted
a compulsory dispute settlement
mechanism to insure that there is a final
authoritative body to interpret and apply its
provisions.
UNCLOS has been ratified by 165 states,
comprising an overwhelming majority of
the members of the United Nations. For this
reason, even the novel maritime
entitlements under UNCLOS in favor of
coastal and land-locked states, which
maritime entitlements have been
consistently affirmed by international
tribunals since 1994, now form part of
customary international law. Even non-
signatory states, as well as signatory
states that later withdraw from UNCLOS,
are bound by these maritime entitlements.
UNCLOS governs only maritime
entitlements, maritime space and maritime
disputes. The maritime entitlements of
states – the territorial sea, EEZ and ECS
and their resources – emanate and are
drawn only from baselines on continental
land or islands. UNCLOS provides for a
compulsory dispute settlement mechanism,
subject to certain types of disputes that
states are allowed to exclude from
compulsory arbitration. All states that
ratified UNCLOS bound themselves in
advance to this compulsory dispute
settlement mechanism. The Philippines and
China, having ratified UNCLOS, are bound
by this compulsory dispute settlement
mechanism.
UNCLOS does not govern territorial
sovereignty disputes over land or land
features in the oceans and seas. Territorial
sovereignty disputes over land or land
features – that is, islands, reefs and rocks
above water at high tide – are governed by
the rules and principles of general
international law. An international tribunal
can acquire jurisdiction over territorial
sovereignty disputes only with the consent
of the states that are parties to the
particular dispute, in the absence of a
treaty binding them in advance to the
jurisdiction of such tribunal. There is no
such treaty between the Philippines and
China.
In short, any maritime dispute between the
Philippines and China is subject to
compulsory arbitration under UNCLOS,
except for the disputes that China has
excluded from compulsory arbitration in
accordance with UNCLOS. In contrast, the
territorial sovereignty dispute between the
Philippines and China over land and land
features is not subject to compulsory
arbitration.
What is the right or entitlement of the
Philippines under international law that is
being violated by China?
Under UNCLOS, every coastal state is
entitled as a matter of international law to
a 200-nm EEZ, plus an additional 150-nm
ECS where applicable, drawn from
baselines on continental land or islands. In
lieu of this additional 150-nm ECS, a
coastal state may adopt an ECS of up to
100-nm seaward from the 2,500 meter
isobaths. This legal maritime entitlement is
one of the most important reasons why
developing coastal states approved
UNCLOS. Without this important legal
maritime entitlement there might have
been no UNCLOS. In case of overlapping
EEZs or ECSs, the opposing or adjacent
coastal states shall negotiate in good faith
an equitable maritime boundary.
Also, land-locked states joined UNCLOS for
two reasons: first, the area of the sea
beyond the EEZ of a coastal state, called
the high seas, is open to fishing for all
states, whether coastal or land-locked; and
second, the seabed and its minerals
beyond the ECS of a coastal state is
declared the common heritage of mankind –
belonging to all states, whether coastal or
land-locked.
China’s 9-dashed line claim negates, and
thus violates, the Philippines’ legal
entitlement under UNCLOS to an EEZ and
ECS. China’s 9-dashed line claim also
negates, and thus violates, the right of all
states on this planet, including the
Philippines, to fish in the high seas or the
area beyond the EEZ of a coastal state.
China’s 9-dashed line claim furthermore
negates, and thus violates, the right of all
states on this planet, including the
Philippines, to the seabed and its mineral
resources beyond the ECS of a coastal
state. Finally, China’s claim of
“indisputable sovereignty” to areas of the
South China Sea beyond the EEZs of
coastal states violates the prohibition
under UNCLOS against states subjecting
the high seas to their sovereignty.
What is the basis of China’s 9-dashed line
claim?
China anchors its 9-dashed line claim on
so-called “historical rights.” However,
China admits that its 9-dashed line claim
was first included in an official Chinese
map only in 1947 during the Kuomintang
Government. In 1998, China enacted its
Exclusive Economic Zone and Continental
Shelf Law to affirm its sovereign rights and
jurisdiction over its EEZ and ECS under
UNCLOS. A provision in this 1998 law
states, “this Act shall not affect the
historical rights of the People’s Republic of
China.” This 1998 law is the first official
reference in a Chinese law to China’s
“historical rights” to maritime areas
outside its EEZ and ECS. However, the
rights of a state under international law
cannot be enlarged by its domestic
legislation, but only by customary
international law or by a convention like
UNCLOS.
China’s 9-dashed line claim was originally
represented by 11 dashes in the 1947
Chinese map, then reduced unilaterally in
1950 to 9 dashes without explanation after
the Communists ousted the Kuomintang
from the mainland. In January this year
China released a new official map adding a
10th dash on the eastern side of Taiwan.
China’s claim was ambiguous from the
start as China failed to explain its scope
until January this year. Moreover, until now
China has never revealed the exact
coordinates of its 9 or 10-dashed line claim,
and neither has China explained the basis
under international law for its claim.
China formally announced to the
international community its claim only in
2009 when it submitted to the United
Nations a map depicting its 9-dashed line
claim. This map, showing no coordinates of
the 9 dashes, was appended to a note
verbale China lodged to protest Vietnam
and Malaysia’s joint submission of their
ECSs. With this map, China claimed
“indisputable sovereignty” over the islands
and “adjacent waters” within the enclosed
area, as well as sovereign right and
jurisdiction over the “relevant waters,”
seabed and subsoil within the enclosed
area. China did not explain the meaning of
the words “adjacent waters” and “relevant
waters,” which are not used in UNCLOS.
China thus failed to clarify the ambiguity of
its 9-dashed line claim. China’s submission
of its 9-dashed line claim to the United
Nations was, of course, promptly protested
by other claimant states.
China has always been ambiguous about
the scope of its 9-dashed line claim –
whether it is claiming only the islands
within the 9-dashed line area, or whether it
is also claiming all the waters and
resources within the 9-dashed line area
beyond the applicable maritime zones.
Even Chinese scholars on the law of the
sea are divided as to whether the 9-dashed
line claim includes all the waters within the
area, comprising almost 90% of the South
China Sea. China’s incumbent judge in the
International Tribunal for the Law of the
Sea, Zhiguo Gao, wrote in 1994 that the 9
dashes merely identify the islands owned
by China within the enclosed area and do
not represent a claim to all the waters and
resources within the enclosed area.
In January this year China appears to have
clarified at least the scope of its claim by
issuing a new official map describing 10
dashes on the map as its “national
boundaries.” By using the term “national
boundaries,” China is apparently claiming
everything within these boundaries as part
of its national territory. If so, China has
clarified only this year that it is claiming all
the waters, islands, reefs, rocks, living and
non-living resources, the seabed and the
minerals found within the previous 9, now
10-dashed line area. This is consistent with
the aggressive actions of Chinese
surveillance ships in harassing survey
vessels of Vietnam and the Philippines
exploring for oil and gas in their own EEZs
that overlap the waters enclosed by the 9-
dashed lines, even if the waters are outside
the maritime zones of any disputed island
and outside the EEZ or ECS of China.
Still, China has not explained the basis
under international law of its “historical
rights” to the 9-dashed line claim. China
has not released an official paper or
document explaining such “historical
rights,” and the justification for such
“historical rights” under international law.
China has refused to defend its 9-dashed
line claim before an international tribunal
on the law of the sea. However, on its face
alone the 9-dashed line claim has
absolutely no basis under international law.
First, UNCLOS extinguished all historical
rights of other states within the 200-nm
EEZ of the adjacent coastal state. That is
why this 200-nm zone is called “exclusive”
– no state other than the adjacent coastal
state can exploit economically its
resources. Fishing rights that other states
historically enjoyed within the EEZ of the
adjacent coastal state automatically
terminated upon the effectivity of UNCLOS.
Moreover, UNCLOS prohibits states from
making any reservation or exception to
UNCLOS unless expressly allowed by
UNCLOS. Any reservation of claims to
“historical rights” over the EEZ or ECS of
another coastal state is prohibited because
UNCLOS does not expressly allow a state
to claim “historical rights” to the EEZ or
ECS of another state. In short, UNCLOS
does not recognize “historical rights” as
basis for claiming the EEZs or ECSs of
other states.
The few cases where the waters beyond
the territorial sea were still treated as
internal waters because of “historical
rights” all happened before the advent of
UNCLOS, when the breadth of the territorial
sea was still three miles. These cases
involved deeply indented bays, like the
Chesapeake Bay bordering Maryland and
Virginia in the United States, or deeply
indented gulfs like the Gulf of Fonseca in
Central America bordering Honduras,
Nicaragua, and El Salvador. These bays and
gulfs are adjacent to the coast and have
long been accepted by other states as
internal waters. With UNCLOS, the
territorial sea has been extended to 12-nm,
and a 200-nm EEZ has been granted to
coastal states, removing the need for a
coastal state to invoke “historical rights”
to exclude other states from its deeply
indented bays or gulfs. In none of these few
cases has “historical rights” been invoked
to claim a non-adjacent area beyond 200-
nm from the coast, or to claim an entire or
nearly entire sea bordering several states.
Second, under UNCLOS the term “historic
bays” refers to internal waters, and the
term “historic titles” refers to territorial
seas. A state can claim “historical rights”
over waters only as part of its internal
waters or territorial sea. There is no
freedom of navigation and no freedom of
over-flight in internal waters or territorial
sea. There is a right of innocent passage
for ships in the territorial sea.
The South China Sea, beyond the 12-nm
territorial sea of coastal states, has never
been considered as the internal waters or
territorial sea of any state. Since time
immemorial, ships of all nations have
exercised freedom of navigation in the
South China Sea. Likewise, since the time
airplanes flew across the seas, aircraft of
all nations have exercised freedom of over-
flight over the South China Sea. If the
South China were the internal waters or
territorial sea of China, then no state could
have exercised freedom of navigation and
freedom of over-flight over the South China
Sea. Indeed, China has stated that there is
freedom of navigation and freedom of over-
flight in the South China Sea, an admission
that the South China Sea does not
constitute its internal waters or territorial
sea.
China’s 1992 Law on Territorial Sea and
Contiguous Zone declares a 12-nm
territorial sea measured from its baselines.
Since China’s own law limits its territorial
sea to 12-nm from its baselines, China
cannot claim the waters within the 9-
dashed line map as its territorial sea. The
waters within the 9-dashed line claim
cannot also be considered internal waters
of any state because they are in the open
sea bordering seven coastal states. The
South China Sea falls under the UNCLOS
definition of a semi-enclosed sea because
it consists “entirely or primarily of the
territorial seas and EEZs of two or more
States.”
Since the time that Grotius’ idea of the free
sea became part of international law, no
nation could appropriate or claim
“indisputable sovereignty” to any part of
the oceans and seas beyond its territorial
sea or beyond what other states recognize
as its internal waters. This is reflected in
UNCLOS, which only grants a coastal state
specified sovereign rights and jurisdiction
over its EEZ and ECS, and expressly
prohibits any coastal state from subjecting
the high seas to its sovereignty.
Thus, the waters enclosed by China’s 9-
dashed line claim are neither internal
waters nor territorial sea of China. The
waters cannot also form part of China’s
EEZ or ECS because they are not drawn
from China’s baselines and are beyond the
limits of China’s EEZ and ECS as drawn
from China’s baselines. In short, China’s
claim to the waters enclosed by the 9-
dashed line claim does not fall under any of
the maritime zones recognized by
international law or UNCLOS – namely,
internal waters, territorial sea, EEZ, and
ECS – that could be claimed by a coastal
state. Only China seems to know under
what maritime zone the 9-dashed line
waters fall, but China is not telling the
world except to claim “indisputable
sovereignty” over such waters by
“historical rights.”
Third, under the general principles and
rules of international law, a claim of
“historical rights” to internal waters or
territorial sea must satisfy four conditions.
One, the state must formally announce to
the international community such claim to
internal waters or territorial sea, clearly
specifying the nature and scope of such
claim. Two, the state must exercise
effective authority, that is, sovereignty,
over the waters it claims as its own
internal waters or territorial sea. Three,
such exercise of effective authority must
be continuous over a substantial period of
time. Four, other states must recognize,
tolerate or acquiesce in to the exercise of
such authority.
China fails to comply with any of these four
conditions. China officially notified the
world of its 9-dashed line claim only in
2009. Not a single country in the world
recognizes, respects, tolerates or
acquiesces in to China’s 9-dashed line
claim. China has never effectively enforced
its 9-dashed line claim from 1947 to 1994
when UNCLOS took effect, and even after
1994 up to the present. Thus, under the
general principles and rules of international
law, China cannot claim “historical rights”
that pre-dated UNCLOS. Even assuming, for
the sake of argument, that China has such
“historical rights,” the entry into force of
UNCLOS in 1994 extinguished such rights.
Under UNCLOS, a state cannot claim any
“historical right” to the EEZ or ECS of
another state.
In the 2002 Asean-China Declaration on the
Conduct of Parties in the South China Sea,
China agreed that all claimant states shall
resolve their disputes “in accordance with
universally recognized principles of
international law, including the 1982 UN
Convention on the Law of the Sea.” China
did not state that “historical rights,” or any
other circumstance, should be a factor in
resolving the disputes. China thus agreed
that only international law, in particular
UNCLOS, should govern the resolution of
the disputes in the South China Sea.
Clearly, there is nothing “historical” or
“right” about China’s 9-dashed line claim
because it is fairly recent, without fixed
coordinates, ambiguous even to its own
legal scholars, inconsistent with its own
national law, contrary to the general
principles and rules of international law,
contrary to UNCLOS, contrary to the Asean-
China DOC, and still evolving as recently as
this year. Not a single state in the world
recognizes, tolerates or acquiesces in to
China’s 9-dashed line claim. By asserting
their own claims to parts of the waters
enclosed by China’s 9-dashed line claim,
the other claimant states actually oppose
and contest China’s 9-dashed line claim.
What is China’s offer to jointly develop the
disputed areas?
China has been dangling to the Philippines
and other claimant states its offer to jointly
develop the disputed areas while shelving
the sovereignty issues. This joint
development offer originated from Deng
Xiaoping’s three-part guideline: sovereignty
belongs to China, shelve the disputes, and
pursue joint development. There are at
least three problems to this offer.
First, China wants to jointly develop the
EEZ of the Philippines but refuses to jointly
develop China’s own EEZ. In effect, China
is saying to the Philippines, what is
exclusively your economic zone belongs to
both of us, but what is exclusively our
economic zone is ours alone, and if you do
not agree, our warships will be there to
prevent you from developing your exclusive
economic zone.
Second, as explained by Chinese officials
and scholars, China’s offer of joint
development is subject to the precondition
that participating coastal states must first
expressly recognize China’s “indisputable
sovereignty” under its 9-dashed line claim.
This precondition effectively means that
once a state agrees to joint development, it
must not only vacate any island it
possesses in the Spratlys and turn over the
same to China, it must also renounce any
maritime claim within the 9-dashed line
area. This precondition demanded by China
is obviously inconsistent with its offer to
shelve the sovereignty issue.
Third, if the Philippines agrees to China’s
joint development offer, the Philippines will
in effect give up its exclusive “sovereign
right and jurisdiction” to exploit all the
living and non-living resources in its own
EEZ. The Philippines will also give up its
exclusive right to exploit the mineral
resources in its own ECS. The bottom line
is that China’s joint development offer will
negate the maritime entitlements of the
Philippines under UNCLOS. This is
constitutionally impermissible because our
1987 Constitution mandates, “The State
shall protect the nation’s marine wealth in
its archipelagic waters, territorial sea and
exclusive economic zone, and reserve its
use and enjoyment exclusively to Filipino
citizens.”
Naturally, not a single claimant state has
agreed to China’s joint development offer.
China’s response to the negative reaction
of other claimant states to its joint
development offer is to harass the ships of
other claimant states exploring for oil and
gas within their own EEZs. In May 2011,
Vietnam protested that Chinese
surveillance vessels cut off the cables of a
Vietnamese ship surveying within
Vietnam’s own EEZ. In December 2012, the
Vietnamese again protested another cable-
cutting act committed by two Chinese
vessels on a Vietnamese ship surveying
within Vietnam’s EEZ. In March 2011, the
Philippines also protested that Chinese
surveillance vessels menacingly circled a
Philippine-commissioned ship surveying in
the Reed Bank, which is within the
Philippines’ EEZ.
These harassment tactics by the Chinese
have prevented Vietnam and the
Philippines from exploiting the resources
within their own EEZs, an exclusive right
guaranteed to them under UNCLOS. These
harassment tactics only confirm that in
practice China is claiming all the waters
and resources within its 9-dashed line map,
even if the waters and resources fall within
the EEZ of other coastal states that have
no overlapping EEZs with China.
The only joint development that is feasible
in the Spratlys is for all claimant states to
respect each others’ EEZs as guaranteed
by UNCLOS, and to jointly develop the
disputed areas beyond these EEZs. In the
absence of overlapping EEZs in the
Spratlys, the EEZ of a coastal state can
never be a disputed area because UNCLOS,
to which all claimant states in the Spratlys
are parties, guarantees such EEZ to every
coastal state. Beyond the EEZs, the
extended continental shelves of claimant
states in the Spratlys overlap and can be
considered disputed areas, and thus open
to joint development. This kind of joint
development, with no preconditions, is
friendly, fair, practical and durable because
it is in accordance with UNCLOS. There is
no bullying in this kind of joint
development, and no state illegally
appropriates the EEZ of another state.
Why did the Philippines file an arbitration
case against China?
Following the tense standoff in April and
May 2012 between Chinese and Philippines
vessels in Scarborough Shoal, the
Philippines withdrew in June 2012 its
vessels from Scarborough Shoal on the
understanding of a mutual withdrawal of
vessels by both China and the Philippines.
The Chinese, however, reneged on their
commitment and refused to withdraw their
vessels. Then in November 2012, China
informed the Philippines that the Chinese
surveillance vessels would remain
permanently stationed in Scarborough
Shoal. China was now in permanent
occupation of Scarborough Shoal.
Scarborough Shoal is a submerged reef
except for six small rocks that protrude not
more than three meters above water at
high tide. The width of the largest rock
above water at high tide is only a few
meters. The Philippines built a lighthouse
on one of the rocks in 1965, and another
lighthouse in 1991. From the 1960s to the
1980s Scarborough Shoal was a bombing
range of American and Philippine Air force
planes practicing bombing runs. Prior to
such practice bombings, American and
Philippine authorities would give worldwide
notices to mariners to avoid Scarborough
Shoal. No protest was ever heard from
China.
Scarborough Shoal appeared in the first
map of the Philippines issued under the
American regime in 1899. Earlier during the
Spanish regime, Scarborough Shoal, at that
time called Panacot, appeared in several
Spanish maps of the Philippines starting at
least in the 1734 Murillo map. While
Scarborough Shoal was outside the lines
drawn in the 1898 Treaty of Paris, Spain
and the United States two years later
entered into the 1900 Treaty of Washington
clarifying that islands to which Spain had
“title or claim of title” were also ceded to
the United States even though outside the
lines drawn in the Treaty of Paris. Thus,
Spain ceded Scarborough Shoal to the
United States under the 1900 Treaty of
Washington. Under the 1935 Constitution,
the territories ceded by Spain to the United
States under the Treaty of Paris and the
Treaty of Washington form part of the
Philippine national territory. Under the
2009 amendment to the Philippine
Baselines Law, Scarborough Shoal is
declared as a Regime of Islands for
purposes of determining its baselines.
The Philippines had five options in
responding to the Chinese occupation of
Scarborough Shoal. First was to send naval
vessels and marines to retake Scarborough
Shoal. This was not feasible because of the
superior Chinese naval forces. Second was
to file a diplomatic protest with China. This
was useless because China would simply
ignore the protest – as it ignored the
protest of the Philippines after China seized
Mischief Reef 17 years earlier in 1995.
Third was to ask Asean to lobby China to
withdraw from Scarborough Shoal. This
was not realistic because some Asean
countries are hesitant to offend China.
Besides, Asean countries do not take sides
on territorial disputes. Fourth was to take
the matter to the United Nations Security
Council. This was also futile since China
has a veto power in the Security Council.
The fifth and only viable option was to
bring the matter to an international tribunal
for arbitration, where the playing field
would be level and military power would
not count, but only the rule of law would
govern. Incidentally, the Philippines could
also not invoke the Phil-U.S. Mutual
Defense Treaty since the U.S. has made it
clear that the islands, reefs and rocks in
the South China Sea are outside the scope
of the treaty.
With China’s occupation of Scarborough
Shoal, the Philippines had no other
recourse but to go to an Annex VII arbitral
tribunal under UNCLOS. It was the only
sensible and effective response that the
Philippines could offer. Otherwise, nothing
would stop China from occupying another
rock, reef, or shoal within its 9-dashed line
claim even if within the EEZ of the
Philippines.
The Chinese occupation of Scarborough
Shoal is an invasion of Philippine territory,
giving rise to a territorial sovereignty
dispute. However, the Philippines could not
bring China to compulsory arbitration on a
territorial sovereignty dispute without
China’s consent. That is why the
Philippines decided to do the next best
thing – bring China to compulsory
arbitration on the maritime aspect of
China’s 9-dashed line claim. If China’s 9-
dashed line claim is invalidated, then China
will lose its excessive claim to the waters
of the South China Sea. More significantly,
China’s basis for claiming territorial
sovereignty over the islands within its 9-
dashed line claim will weaken considerably
since the 9-dashed line claim is central to
China’s historical claim to territorial
sovereignty over the islands within the
enclosed area.
Is China’s consent required for the
compulsory arbitration?
When a state ratifies UNCLOS, the state
consents in advance to be bound by the
compulsory dispute settlement mechanism
under UNCLOS on “any dispute concerning
the interpretation or application” of the
provisions of UNCLOS. However, a state is
allowed to opt out of compulsory
arbitration for certain matters, like
disputes on maritime boundary
delimitation. In 1996, ten years after
ratifying UNCLOS, China opted out of
compulsory arbitration for certain types of
disputes, including any dispute on maritime
boundary delimitation. A state remains
bound to compulsory arbitration with
respect to the interpretation or application
of UNCLOS on disputes that the state has
not excluded, or cannot exclude, from
compulsory arbitration.
Thus, when an actual dispute arises
involving the interpretation or application
of UNCLOS, a signatory state is already
deemed to have given its consent to
compulsory arbitration, unless the dispute
is one that is properly excluded from
compulsory arbitration under UNCLOS.
The Philippines’ arbitration case against
China involves the interpretation or
application of UNCLOS on three main
issues. The first issue is whether China’s 9-
dashed line claim can negate the grant
under UNCLOS of an EEZ to the Philippines.
This issue does not involve any maritime
boundary delimitation because there are no
overlapping EEZs between China and the
Philippines, certainly not in the island of
Luzon facing the West Philippine Sea.
Scarborough Shoal, whatever state may
have sovereignty over it, does not generate
an EEZ because only small rocks are found
there. Admittedly, those rocks are not
islands capable of sustaining human
habitation or economic life of their own,
which is the condition for an island to have
an EEZ.
In the Spratlys there is no island capable of
sustaining human habitation or economic
life of its own. This is the position of the
Philippines, Vietnam, Malaysia and Brunei.
Thus, there are also no overlapping EEZs
between the Philippines and other claimant
states in the Spratlys. However, since
China claims that islands in the Spratlys
generate EEZs, the second issue is
whether an island in the Spratlys actually
generates an EEZ. The resolution of this
issue does not involve any maritime
boundary delimitation. This issue is an
inquiry into whether an island in the
Spratlys satisfies the UNCLOS requirement
of being able to “sustain human habitation
or economic life of [its] own.” If none of the
islands satisfies this requirement, then
there are no overlapping EEZs in the
Spratlys and hence no maritime boundary
delimitation is involved. If an island
satisfies this requirement, and thus
generates an EEZ, then the tribunal will so
declare but will proceed no further without
the consent of China because the issue will
then involve overlapping EEZs requiring
maritime boundary delimitation for its
resolution.
In the event that the arbitral tribunal rules
that an island in the Spratlys generates an
EEZ, the Philippines can bring China to
compulsory conciliation under an UNCLOS
conciliation commission. Under UNCLOS, a
state that opts out of compulsory
arbitration involving maritime boundary
delimitation shall nevertheless submit to
compulsory conciliation. The conciliation
commission will adjust the median line of
the overlapping EEZs, taking into account
Palawan’s more than 600-nm coastline as
against the less than 1-nm coastline of the
biggest island in the Spratlys. Under
prevailing law of the sea jurisprudence,
such huge disproportion in the opposing
coastlines will entitle the island in the
Spratlys to an EEZ either only seaward
away from Palawan, or to a proportionally
minuscule EEZ facing Palawan, if at all.
Although the report of the conciliation
commission is not binding on China, China
is obligated under UNCLOS to negotiate in
good faith with the Philippines based on
the report of the conciliation commission.
The third issue is whether China can
appropriate and construct artificial islands
on low-tide elevations (LTEs) within the
Philippines’ EEZ, like the massive structure
China built on Mischief Reef, which China
officially describes as a shelter for Chinese
fishermen. LTEs are rocks above water at
low tide but under water at high tide. LTEs
beyond the territorial sea of a coastal state
do not generate any maritime zone, not
even a territorial sea. LTEs beyond the
territorial sea are not subject to
appropriation and to claims of territorial
sovereignty because they are not land but
part of the maritime zone. Under UNCLOS,
only the adjacent coastal state can build
artificial islands within its EEZ.
A corollary issue raised by the Philippines
is whether China can subject the high seas
in the South China Sea to its sovereignty.
The high seas refer to the area beyond the
EEZs of coastal states. China’s 9-dashed
line claim subjects the high seas in the
South China Sea to China’s “indisputable
sovereignty.” UNCLOS expressly provides
that no state shall subject the high seas to
its sovereignty. This UNCLOS provision is a
codification of centuries’ old customary
international law.
Under UNCLOS, the refusal of a party to
participate in a dispute settlement
proceedings, where such participation is
compulsory, “shall not constitute a bar to
the proceedings” and the tribunal can still
decide the case on the merits.
How long will it take for the arbitral
tribunal to decide the case?
The 5-man Annex VII arbitral tribunal met
for the first time last July 11, 2013 and
designated The Hague as seat of the
arbitration and the Permanent Court of
Arbitration as the Registry of the
proceedings. Although China has refused to
participate in the proceedings, it is still
being notified, and requested to comment,
at every stage of the proceedings. Last
Tuesday, August 27, 2013, the Tribunal
issued an Order approving its Rules of
Procedure and directing the Philippines to
submit its Memorial not later than March
30, 2014. The Order states that the
Memorial shall “fully address all issues,
including matters relating to the
jurisdiction of the Arbitral Tribunal, the
admissibility of the Philippines’ claim, as
well as the merits of the dispute.” The
Order further states, “The Arbitral Tribunal
will determine the further course of the
proceedings, including the need for and
scheduling of any other written
submissions and hearings, at an
appropriate later stage, after seeking the
views of the Parties.” Based on the
Tribunal’s Order requiring all issues to be
addressed in the Memorial of the
Philippines, it is possible that the Tribunal
may decide the jurisdictional issue
together with merits of the dispute.
Arbitrations under Annex VII may take two
to three years before a decision is reached.
What are the ramifications of this case on
international law?
China’s 9-dashed line claim simply cannot
co-exist with UNCLOS. Upholding one
means killing the other. If China’s 9-dashed
line claim is upheld or allowed to stand,
UNCLOS will cease to be the law of the sea
in the South China Sea. China will
appropriate for itself not only the EEZs and
ECSs of other coastal states but also the
high seas and all the living and non-living
resources found there. This will be the
beginning of the end for UNCLOS. Other
naval powers will likewise claim other
oceans and seas, taking away the EEZs
and ECSs of weak or defenseless coastal
states. The oceans and seas of the planet
will be governed by the rule of the naval
canon.
Indeed, the maritime dispute between the
Philippines and China is an acid test to the
very survival of UNCLOS – whether the Rule
of Law will govern the oceans and seas of
our planet, or whether the rule of the naval
cannon will prevail, as it did in the time of
Grotius. Legal scholars on the law of the
sea all over the world are keenly watching
the outcome of the Philippines’ arbitration
case.
What are the ramifications of this case on
the Philippines?
The Philippines has wisely chosen to bring
its maritime dispute with China to a forum
where warships, fighter planes and
missiles do not count, eliminating the
military advantage of China and insuring
that the outcome of the dispute will be
decided only in accordance with the Rule
of Law. It was a wise decision, but one
borne out of necessity because it was
actually the only viable option open to the
Philippines.
We have to admit that as a nation we have
neglected to maintain a credible self-
defense force, particularly in our naval
assets despite our being an archipelagic
country with extensive coastlines and a
vast EEZ. We are paying dearly for this
neglect, by losing Mischief Reef in 1995,
Scarborough Shoal in 2012, and most likely
Ayungin Shoal in the near future. To remain
a sovereign and independent nation, to
maintain our territorial integrity, to avoid
further humiliation, and to maintain our
self-respect as a nation, we must build and
maintain a credible self-defense force.
There is simply no alternative to this. No
nation can remain sovereign, independent
and free for long without maintaining a
credible self-defense force, even if
international law and world opinion are on
its side.
As a nation we must also understand that
the maritime and territorial dispute with
China in the West Philippine Sea is an inter-
generational struggle to maintain our
sovereignty and territorial integrity. Our
generation may win the legal battle in the
UNCLOS arbitration case, but for sure
China will not simply abandon its massive
structure in Mischief Reef or withdraw its
surveillance vessels in Scarborough Shoal.
After securing a favorable ruling from the
arbitral tribunal, our generation must still
win over world opinion and convince the
Chinese people that they will become a
rogue nation if their Government continues
to violate international law. he Chinese
leaders may not survive politically if they
simply abandon the 9-dashed line claim
without the Chinese people being
convinced that their 9-dashed line claim is
against international law. The present
generation of Chinese have been taught
from the time they entered school that the
South China Sea belongs to them. The next
generation of Filipinos, and even the
generation after them, must continue to
wage a worldwide campaign to convince
the Chinese people that the 9-dashed line
claim has no basis in international law.

UNCLOS does not provide for a world

policeman or sheriff to execute decisions
of international arbitral tribunals. Member
states of UNCLOS are expected to
voluntarily self-execute decisions of
arbitral tribunals. For a losing party, this
will happen only if the Government of the
day can survive politically even if it
complies with a decision against its own
state. A Government will survive politically
if its people understand that the decision is
mandated by international law. The world
must explain to the Chinese people that the
9-dashed line claim is contrary to
international law. No nation can claim the
oceans and seas as its own. That is why it
is necessary for the Philippines to first
secure a ruling from an international
tribunal that the 9-dashed line claim is
contrary to international law.

The West Philippine Sea dispute can, and

must be resolved, through the Rule of Law
because it is the only fair, just and durable
solution to a situation where the opposing
states are vastly unequal in terms of
military, economic and political strength.
Any resolution of the dispute outside of the
Rule of Law will only result in unequal
treaties and plant the seeds of conflict for
future generations.

The Rule of Law in the West Philippine Sea

dispute is UNCLOS. All the claimant states
to the dispute are parties to UNCLOS and
are bound to comply with their treaty
obligations under UNCLOS in good faith. If
the West Philippine Sea dispute is settled
in accordance with UNCLOS, then the
world can be assured that there will be a
just, permanent and lasting peace in the
West Philippine Sea.

Reference: https://www.imoa.ph/speech-the-rule-of-
law-in-the-west-philippine-sea-dispute/#:~:text=The
%201982%20United%20Nations%20Convention,and
%20China%2C%20have%20ratified%20UNCLOS.