JURISDICTION OF THE ITLOS
LAW OF THE SEA Its jurisdiction covers all disputes submitted to it in accordance with the
Reporters:
Mary Louise D. Tuscano
Jervin S. Budek
Pilita Annang
Victoriano Clive Davis P. Mallillin
Augustines Lagadon
INTERNATIONAL LAW OF THE SEA
A body of treaty rules and customary norms governing the uses of the
sea, the exploitation of its resources, and the exercise of jurisdiction
over maritime regimes.
It is a branch of Public International Law which regulates the relations
of states with respect to the use of the oceans.
UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
(UNCLOS)
It defines the rights and obligations of nations in their use of the world’s
oceans, establishing rules for business, the environment and the
management of marine natural resources.
INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA (ITLOS)
The ITLOS is an independent judicial body established by the Third
United Nations Convention on the Law of the Sea to adjudicate disputes
arising out of the interpretation and application of the convention. It was
established after Ambassador Arvido Pardo Malta addressed the
General Assembly of the United Nations and called for “an effective
international regime over the seabed and ocean floor beyond a clearly
defined national jurisdiction.”
UNCLOS. It also includes matters submitted to it under any other
agreement. It is composed of 21 independent members elected from
among persons enjoying the highest reputation for fairness and
integrity and of recognized competence in the field of the law of the sea.
COMPULSORY SETTLEMENT OF DISPUTES
Where no successful settlement can be achieved, or if the parties are
unable to agree on the means of settlement of a dispute concerning
the application of UNCLOS, such dispute may be governed by the
principle of compulsory settlement, where procedures entail binding
decisions.
The parties may choose, through a written revocable and replaceable
declaration, to submit the dispute to:
1. ITLOS;
2. ICJ;
3. Arbitral tribunal;
4. Special arbitral tribunal.
The court or tribunal has jurisdiction over:
1. Any dispute submitted to it concerning the application
or interpretation of UNCLOS; or
2. Any dispute concerning the interpretation or application
of an international agreement:
a. Related to the purposes of the UNCLOS;
b. When such dispute is submitted to it in accordance
with that agreement.
The court or tribunal shall apply the UNCLOS and other rules of
international law not incompatible with the UNCLOS. It may also
decide a case ex aequo et bono (what is
and just) if the parties so agree.
BASELINE
A baseline is the line from which a breadth of the territorial sea and
other maritime zones, such as the contiguous zone and the exclusive
economic zone is measured. Its purpose is to determine the starting
point to begin measuring maritime zones boundary of the coastal state.
2 Kinds of Baseline
1. Normal baseline - where the territorial sea is the low-water line
along the coast as marked on large scale charts officially
recognized by the coastal state [Article 5, UNCLOS].
2. Straight baseline - where the coastline is deeply indented or cut
into, or if there is a fringe of islands along the coast in its
immediate vicinity, the method of straight lines joining the
appropriate points may be employed in drawing the baseline
from which the breadth of the territorial sea is measured [Article
7, UNCLOS].
How baseline is formed
1. Mouths of Rivers – If a river flows directly into the sea, the
baseline shall be a straight line across the mouth of the river
between points on the low‐water line of its banks. (Article 9,
UNLOS)
2. Bays – Where the distance between the low‐water marks of the
natural entrance points:
a. Does not exceed 24 nautical miles – closing line may be drawn
between these two low‐water marks, and the waters enclosed
thereby shall be considered as internal waters. (Article 10 [4],
UNCLOS)
b. Exceeds 24 nautical miles–straight baseline of 24 nautical miles
shall be drawn within the bay in such a manner as to enclose
the maximum area of water that is possible with a line of that
length. (Article 10 [5], UNCLOS)
Bay
It is a well‐marked indentation whose penetration is in such proportion
to the width of its mouth as to contain land‐locked waters and constitute
more than a mere curvature of the coast. (Article 10 (2), UNCLOS)
RA 9522
AN ACT TO AMEND CERTAIN PROVISIONS OF REPUBLIC ACT NO.
3046, AS AMENDED BY REPUBLIC ACT NO. 5446, TO DEFINE THE
ARCHIPELAGIC BASELINES OF THE PHILIPPINES, AND FOR
OTHER PURPOSES
Magallona et. Al. Vs. Executive Secretary
Petitioners assailed the constitutionality of RA 9522.
Facts: RA 9522 reduces the territory of the Philippines in violation to
the Constitution and it opens the country to maritime passage of
vessels and aircrafts of other states to the detriment of the economy,
sovereignty, national security and of the Constitution as well. They
added that the classification of Regime of Islands would be prejudicial
to the lives of the fishermen.
Decision: The Supreme Court dismissed the petition. RA 9522 did not
delineate the territory the Philippines but is merely a statutory tool to
demarcate the country’s maritime zone and continental shelf under
UNCLOS III. SC emphasized that UNCLOS III is not a mode of
acquiring or losing a territory as provided under the laws of nations.
UNCLOS III is a multi-lateral treaty that is a result of a long-time
negotiation to establish a uniform sea-use rights over maritime zones
(i.e., the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines], exclusive
economic zone [200 nautical miles from the baselines]), and continental
shelves.
In order to measure said distances, it is a must for the state parties to
have their archipelagic doctrines measured in accordance to the
treaty—the role played by RA 9522. The contention of the petitioner
that RA 9522 resulted to the loss of 15,000 square nautical miles is
devoid of merit. The truth is, RA 9522, by optimizing the location of base
points, increased the Philippines total maritime space of 145,216
square nautical miles.
Archipelagic states
A state constituted wholly by one or more archipelagos and may include
other islands. (Article 46, UNCLOS)
Archipelago
It means a group of islands, including parts of islands, interconnecting
waters and other natural features which are so closely interrelated that
such islands, waters and other natural features form an intrinsic
geographical, economic and political entity, or which historically have
been regarded as such (Article 46, UNCLOS)
There are two kinds of archipelagos:
1. Coastal, situated close to a mainland and may be considered part
thereof (i.e., Norway);
2. Mid-Ocean, situated in the ocean at such distance from the coasts
of firm land, (i.e., Indonesia). The archipelagic state provisions apply
only to mid-ocean archipelagos composed of islands, and not to a
partly continental state.
How may an archipelagic state draw straight archipelagic
baselines
By joining the outermost points of the outermost islands and drying
reefs of the archipelago provided that within such baselines are
included the main islands and an area in which the ration of the water
to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
(Article 47, UNCLOS)
Guidelines in drawing archipelagic baselines
1. The length of such baselines shall not exceed 100 nautical
miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length,
up to a maximum length of 125 nautical miles. (Article 47 [2],
UNCLOS)
2. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago. (Article 47[3], UNCLOS)
3. Such baselines shall not be drawn to and from low tide
elevations (Article 47[4], UNCLOS)
4. It shall not be applied in such a manner as to cut off from the
high seas or the exclusive economic zone the territorial sea of
another State. (Article 47[5], UNCLOS)
5. If a part of the archipelagic water of an archipelagic State lies
between 5. two parts of an immediately adjacent neighboring
State, existing rights and all other legitimate interests which the
latter State has traditionally exercised in such waters and all
rights stipulated by agreement between those States shall
continue and be respected. (Article 47[6], UNCLOS)
Archipelagic waters
These are waters enclosed by the archipelagic baselines, regardless of
their depth or distance from the coast. (Article 49[1], UNCLOS)
Sovereignty of the archipelagic states to archipelagic waters
Archipelagic states have sovereignty over the archipelagic waters.
However, such sovereignty is subject to the right of innocent passage
which is the same nature as the right of innocent passage in the
territorial sea. (Article 49[1] in relation to Article 52[1], UNCLOS)
It is also subject to….
1. Rights under existing agreement on the part of the third states
should be respected; (Article 51[1], UNCLOS)
2. The traditional fishing rights and other legitimate activities of
the immediately adjacent neighboring States (Ibid)
3. Existing submarine cables laid by other States and “passing
though its waters without making a windfall” as well as the
maintenance and replacement of such cables upon being
notified of their location and the intention to repair or replace
them. (Article 51[2], UNCLOS)
Suspension of the right to innocent passage in areas of
archipelagic waters
The suspension must be:
1. Without discrimination in form or in fact among foreign ships;
2. Essential for the protection of its security; and
3. Shall take effect only after having been duly published. (Article 52[2],
UNCLOS)
Right of archipelagic sea lanes passage
It is the right of foreign ships and aircraft to have continuous,
expeditious and unobstructed passage in sea lanes and air routes
through or over the archipelagic waters and the adjacent territorial sea
of the archipelagic state, “in transit between one part of the high seas
or an exclusive economic zone.” All ships and aircraft are entitled to the
right of archipelagic sea lanes passage. (Magallona, 2005; Article 53[1]
in relation with Article 53[3], UNCLOS)
OTHER RIGHTS RELATING TO ARCHIPELAGIC WATERS
1. Rights under existing agreement on the part of third states should
be respected by the archipelagic state.
2. Within its archipelagic waters, the archipelagic state shall recognize
traditional fishing rights and other legitimate activities of immediately
adjacent neighboring states.
3. The archipelagic state shall respect existing submarine cables laid
by other states and “passing through its waters without making a
landfall.”

Under Article 1 of the 1987 Constitution, the archipelagic waters of the

Philippines are characterized as forming part of “the internal waters of
the Philippines.”
However, under the UNCLOS, archipelagic waters consist mainly of
the “waters around, between, and connecting the islands of the
archipelago, regardless of breadth or dimension.”

Thus, conversion from internal waters under the Constitution into

archipelagic waters under the UNCLOS gravely derogates the
sovereignty of the Philippine state, because sovereignty over internal
waters may preclude the right of innocent passage and other rights
pertaining to archipelagic waters under the UNCLOS. Also, under
Article 47, UNCLOS, it is not mandatory upon concerned states to
declare themselves as archipelagic states; the Philippines did, under
its new baselines law, RA 9522 upheld as constitutional [Magallona v.
Executive Secretary (2011)].
Waters
a. Internal Waters
b. Territorial Sea
c. Contiguous Zone
d. Exclusive Economic Zone
e. High Seas
Internal waters
These are waters of lakes, rivers and bays landward of the baseline of
the territorial sea. Waters on the landward side of the baseline of the
territorial sea also form part of the internal waters of the coastal state.
However, in the case of archipelagic states, waters landward of the
baseline other than those of rivers, bays, and lakes, are archipelagic
waters. (Magallona, 2005; Article 8 [1], UNCLOS)
Internal waters are treated as part of a State's land territory, and is
subject to the full exercise of sovereignty. Thus, the coastal state may
designate which waters to open and which to close to foreign shipping.

Is there a right of innocent passage through internal waters?

No, the right of innocent passage applies only to territorial sea and the
archipelagic waters (Magallona, 2005; Article8[2], UNCLOS)
However, A coastal state may extend its internal waters by applying the
straight baseline method in such a way as to enclose as its internal
waters areas which are previously part of the territorial sea. It also
applies to straits used for international navigation converted into
internal waters by applying the straight baselines method. Thus, the
right of innocent passage continues to exist in the “extended” internal
waters. (Magallona, 2005; Article 8[2], UNCLOS)
Territorial Sea take into account the subject to adoption by
These waters stretch up to 12 miles from the baseline on the seaward recommendations of competent international
direction. They are subject to the jurisdiction of the coastal state, which competent international organization upon the
jurisdiction almost approximates that which is exercised over land organization proposal and
territory. agreements of states
Except that the coastal state must respect the rights to (1) innocent bordering the straits
passage and , in the case of certain straits, to (2) transit passage.
• Innocent passage ➔ navigation through the territorial sea w/o
entering internal waters, going to Internal waters, or coming
from internal waters and making for !he high seas. It must Contiguous zone
(a) Involve only acts that are required by navigation or by This is the maritime zone (up to 24 nautical miles) adjacent to the
distress, and territorial sea where the coastal stale may exercise certain protective
(b) not prejudice the peace, security, or good order of the jurisdiction.
coastal state. Thus, the coastal stale may exercise the control necessary to:
• Transit passage ➔ the right to exercise freedom of navigation
a. Prevent infringement of its customs, fiscal, immigration or
and overflight solely for the purpose of continuous and sanitary laws and regulations within its territory or territorial sea;
expeditious transrt through the straights used for international b. Punish infringement of the above laws and regulations
navigation. The right cannot be unilaterally suspended by the committed within its territory or territorial sea.
coastal state.
The coastal state must not extend its contiguous zone beyond 24
Innocent passage Transit passage nautical miles from the baseline Note that the contiguous zone is merely
• Pertains to navigation of • Includes the right of a zone of jurisdiction for a particular purpose. It is not a zone of
ships only overflight sovereignty.
• Requires submarines and • Submarines are
other underwater vehicles allowed to navigate in THALWEG DOCTRINE
to navigate on the surface “normal mode”
and show their flags It provides that for boundary rivers, in the absence of an agreement
 Can be suspended, but • Cannot be suspended between the riparian States, the boundary line is laid in the middle of
under the condition that it the main navigable channel.
does not discriminate
among foreign ships, and Exclusive Economic Zone
such suspension is It gives the coastal State sovereign rights over all economic resources
essential for the protection of the sea, sea‐bed and subsoil in an area extending not more than 200
of its security, and nautical miles beyond the baseline from which the territorial sea is
suspension is effective measured. (Magallona, 2005; Articles 55 & 57, UNCLOS))
only after having been duly
published (Article 25, Within this zone, a State may regulate nonliving and living resources,
UNCLOS) other economic resources, artificial installations, scientific research,
• In the designation of sea • Designation of sea and pollution control.
lanes and traffic schemes, lanes and traffic
the coastal state shall only separation schemes is
Under the UNCLOS. states have the sovereign right to exploit the
resources of this zone. But shall share that part of the catch that is
beyond its capacity to harvest.
SOVEREIGN RIGHTS OF A COASTAL STATE IN EEZ
1. For the purpose of exploring and exploiting, conserving and
managing the living and non‐living resources in the super
adjacent waters of the sea‐bed and the resources of the sea‐
bed and subsoil;
2. With respect to the other activities for the economic exploitation
and exploration of the EEZ, such as production of energy from
water, currents and winds;
JURISDICTIONAL RIGHTS OF A COASTAL STATE IN EEZ
1. With respect to establishment and use of artificial islands;
2. As to protection and preservation of the marine environment;
and
3. Over marine scientific research
OBLIGATIONS OF A COASTAL STATE IN EEZ
1. Proper conservation and management measures that the living
resources of the EEZ are not subjected to overexploitation;
2. Promote the objective of “optimum utilization” of the living
resources. (Magallona, 2005, (Article 61[2], 62[1] UNCLOS)
LAND-LOCKED STATES
These are states which do not border the seas and do not have
Exclusive Economic Zones. (Magallona, 2005)
Rights of land-locked states
Land‐locked States shall have the right to participate, on an equitable
basis, the exploitation of an appropriate part of the surplus of the living
resources of the exclusive economic zones of coastal States of the
same subregion or region, taking into account the relevant economic
and geographical circumstances of all States concerned. (Article 69[1],
UNCLOS)
Developed land‐locked States shall be entitled to participate in the
exploitation of living resources only in the exlusive economic zones of
developed coastal States of the same subregion or region having
regard to the extent to which the coastal State, in giving access to other
States to the living resources of its exclusive economic zone, has taken
into account the need to minimize detrimental effects on fishing
communities and economic dislocation in States whose nationals have
habitually fished in the zone. (Article 70[1], UNCLOS)
High seas
These are all parts of the sea that are not included In the EEZ. In the
territorial sea, or in Internal waters of a state or are In the archipelagic
waters of the archipelagic state. They are beyond the jurisdiction and
sovereign rights of states
High seas are open to all states whether coastal or land-locked, and no
state may validly purport to subject any of the high seas to its
sovereignty.
It is the right of every state to sail ships flying Its flag on the high seas,
and thus no state can prevent ships or other states from using the high
seas for lawful purposes. The high seas, however, Is reserved for
peaceful purposes.
What comprises freedom of the high seas
(a) freedom of navigation
(b) freedom of overflight,
(c) freedom of fishing ,
(d) freedom to lay submarine cables and pipelines
(e) freedom to construct artificial islands and installations and
(f) freedom of scientific research.
• All states must exercise these freedoms with due regard for the
interests of other 5tates.
In the high seas a state has exclusive jurisdiction over ships sailing
under Its flag, hence it is called a " flag state·
Warships and ships owned and operated by a State also enjoy
immunity from the jurisdiction of any other state other than the flag
state.
SOUTH CHINA SEA ARBITRATION
(PCA Case Number 2013–19)
Between The Republic of the Philippines and The People’s
Republic of China
Before An Arbitral Tribunal Constituted Under Annex VII to the
United Nations Convention on the Law of the Sea 1982
Registry: Permanent Court of Arbitration
Date of Award: 12 July 2016
The South China Sea Arbitration was conducted between the
Republic of the Philippines and the People’s Republic of China
by the Permanent Court of Arbitration (PCA), under the 1982
United Nations Convention on the Law of the Sea (UNCLOS).
The arbitration is related to disputes between the Parties
regarding the legal basis of maritime rights and entitlements, the
status of certain geographic features, and the lawfulness of
certain actions taken by China in the South China Sea; in
particular, the following four issues, as raised by Philippines:
1. To resolve a dispute between the parties regarding the source
of maritime rights and entitlements in the South China Sea;
2. To resolve a dispute between the parties concerning the
entitlements to maritime zones that would be generated under
the Convention by Scarborough Shoal and certain maritime
features in the Spratly Islands that are claimed by both the
parties;
3. To resolve a series of disputes concerning the lawfulness of
China’s actions in the South China Sea, vis-à-vis interfering
with Philippine’s rights, failing to protect and preserve the
marine environment, and inflicting harm on the marine
environment (through land reclamation and construction of
artificial islands);
4. To find that China has aggravated and extended the disputes
between the Parties by restricting access to a detachment of
Philippines Marines stationed at Second Thomas Shoal.
While China and Philippines are both parties to the UNCLOS,
China specifically made a declaration in 2006 to exclude maritime
boundary delimitation from its acceptance of compulsory dispute
settlement. In addition, China has shown disagreement with
Philippines’ decision to take the matter to arbitration and has
decided neither to agree with the decision of the Tribunal nor to
participate in the proceedings.
The Tribunal, on its end, has taken cognizance of these factors
and has purported to not deal with delimiting maritime
boundaries. Furthermore, the Tribunal did not bar the
proceedings, on the basis of Article 9 of Annex VII of UNCLOS[4].
In addition, the Tribunal also noted that despite China’s absence
from the proceedings, since it is a party to the UNCLOS, the
decision of the Tribunal would, in fact, be binding upon it,
pursuant to Article 296 (1)[5] and Article 11 of Annex VII[6].
China’s Foreign Ministry, further, stated its position with regard to
the proceedings by publishing a Position Paper in 2014[7]. It
claimed that the Tribunal lacks jurisdiction over the matter
because:
1. The essence of the subject-matter of the arbitration is the
territorial sovereignty over the relevant maritime features in the
South China Sea;
2. China and the Philippines have agreed, through bilateral
instruments and the Declaration on the Conduct of Parties in
the South China Sea, to settle their relevant disputes through
negotiations;
3. Philippines’ disputes would constitute an integral part of
maritime delimitation between the two countries.
The Tribunal considered China’s Position Paper as a plea on
jurisdiction, and conducted a separate hearing on the issue of
jurisdiction and admissibility. Additionally, the Tribunal also
declared that it would honour China’s declaration of 2006 and the
UNCLOS and would neither delve into issues of maritime
boundary delimitation or questions of sovereignty. The
Philippines also stated that it, “does not seek in this arbitration a
determination of which Party enjoys sovereignty over the islands
claimed by both of them. Nor does it request a delimitation of any
maritime boundaries.”[8]
Pursuant to this, the Tribunal issued its Award on
Jurisdiction[9] in October 2015, in which it concluded that it did
indeed have jurisdiction in the case, as per Philippines’ Final
Submissions[10], and that China’s lack of participation would not
prove to be a bar to its proceedings. It, further, concluded that the
treaties China was relying on were either political in nature and
not legally binding[11], or that they did were legally binding and
yet did not bar either Party from alternative means of dispute
resolution[12]. In accordance with Article 283 of the
UNCLOS[13], the Tribunal found that this requirement was met
in the diplomatic communications between the Parties and that
Philippines’ initiation of proceedings under the UNCLOS did not
constitute an abuse of of process as claimed by China.
The Tribunal, proceeding with the first two submissions made by
the Philippines, considered the validity of China’s claim to historic
rights in the maritime region of the South China Sea and the
‘Nine-Dash Line’. Through a lengthy analysis of the text and
context of the Convention, in line with the principles set out in the
Vienna Convention on the Law of Treaties, the Tribunal
established that the Convention supersedes any treaties in force
before its coming into force. It questioned China’s claim to
historical rights in the region, and established that China’s state
practice does not show that China had been enjoying any
historical rights in the South China Sea; rather, it was enjoying
the freedom of the high seas and since it did not create bar to
other states’ usage of the same, it could not be understood as
being a historical right. Furthermore, since China’s publishing of
the same in its Notes Verbales in 2009, many states have
objected to its claim as well. “The Tribunal concludes that the
Convention superseded any historic rights or other sovereign
rights or jurisdiction in excess of the limits imposed
therein.”[14] However, the Tribunal also concluded that its
jurisdiction was limited to the claims of historic rights on the
maritime region and not to the land masses in the South China
Sea, i.e. if it can claim historic rights on any of the islands, then it
may also be able to claim maritime zones (as per the Convention)
on the basis of these islands.
Next, the Tribunal looked at Philippines’ submissions 3 to 7,
concerning the nature of the features in the South China Sea. It
differentiates between low-tide elevations[15], high-tide
features[16] and rocks[17]. In its Award on Jurisdiction, the
Tribunal clarified that:
This is not a dispute concerning sovereignty over the features,
notwithstanding any possible question concerning whether low-
tide elevations may be subjected to a claim of territorial
sovereignty. Nor is this a dispute concerning sea boundary
delimitation: the status of a feature as a “low-tide elevation”,
“island”, or a “rock” relates to the entitlement to maritime zones
generated by that feature, not to the delimitation of such
entitlements in the event that they overlap.[18]
The Philippines put forward three categories for classifying low-
tide elevations: where a low-tide elevation is located within 12
miles of a high-tide feature[19], where the low-tide elevation is
beyond 12 miles but within the state’s exclusive economic zone
or continental shelf[20], and where the low-tide elevation is
located beyond the areas of natural jurisdiction[21].
For the purpose of identifying the nature of the features in the
South China Sea, the Tribunal relied upon satellite imagery that
had been conducted on the area and direct surveys that had been
carried out, by navies or otherwise, in the area, and relied upon
maps that were sufficiently detailed. They chose a certain tidal
height to maintain uniformity across the features, and decided to
rely, in cases where there had been significant man-made
changes, alterations or construction on the features, upon
maps/imagery/surveys that depicted the features as they had
been in their original form.[22]
Again the Tribunal relied upon statements previously made by
China to obtain their stance on the nature of the features, since
China had neither submitted any document to the Tribunal nor
had it discussed these in its Position Paper.
The Tribunal concluded that Scarborough Shoal, Cuarteron Reef,
Fiery Cross Reef, Johnson Reef, McKennan Reef and Gaven
Reef (North) were all found to be high-tide features. The Tribunal
further noted that for the purposes of Article 121(3), the high-tide
features at Scarborough Shoal and the reefs were rocks that
cannot sustain human human habitation or economic life of their
own and so have no exclusive economic zone or continental
shelf. The Tribunal found the same to be true of the Spratly
Islands and so concluded that China, therefore, has no
entitlement to any maritime zone in the area of Mischief Reef or
Second Thomas Shoal; they do, however, form part of the
exclusive economic zone and continental shelf of the Philippines
as they lie within 200 nautical miles of the Philippines’ coast and
there are no overlapping entitlements in the area with respect to
China.
On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef,
Mischief Reef and Second Thomas Shoal were all found to be
low-tide elevations, of which Hughes Reef lay within 12 miles of
McKennan Reef and Sin Cowe Island, Gaven Reef (South) lay
within 12 miles of Gaven Reef (North) and Namyit Island, and
Subi Reef lay within 12 miles of the high-tide feature of Sandy
Cay on the reefs to the west of Thitu.
In the issue of Chinese interference with the living and non-living
resources (primarily concerned with fishing practices in the South
China Sea and oil and gas exploration and exploitation) of the
Philippines, the Tribunal considered diplomatic statements from
China to the Philippines and regulations related to the matter that
China had passed domestically. The Philippines put forward four
contentions related to living resources: China’s prevention of
fishing by Philippine vessels at Mischief Reef since 1995, and at
Second Thomas Shoal since 1995, China’s revision of the Hainan
Regulation[23] and China’s moratorium on fishing in the South
China Sea in 2012[24]. The Tribunal finds that China had
breached Articles 77[25] and 56[26] of the Convention through
the operation of its marine surveillance vessels (which interfered
with Philippines’ oil and gas exploration) and through its
moratorium on fishing which interfered with the exclusive
economic zone of the Philippines, respectively.
The Tribunal also found China in breach of Article 58 (3)[27] of
the Convention, due to its failure to prevent fishing by Chinese
flagged ships in the exclusive economic zone of the Philippines,
failing to respect the sovereign rights of the Philippines over its
fisheries in its exclusive economic zone.
Submission 10 of the Philippines related to China’s interference
with Philippines’ fishing vessels and practices in the Scarborough
Shoal. While both the states had conflicting views on the situation
(China believed that it was Philippines who was causing the
interference) and both claimed historic rights (Philippines
distinguished this by clarifying that it only referred to historic
fishing rights) to the region, the Tribunal opined that China was,
in fact, in contravention of the Convention by interfering with the
traditional fishing practice of the Philippines in its exclusive
economic zone through the deployment of its official ships in the
region. The Tribunal also noted that this decision does not
depend on the question of sovereignty, and that the Tribunal once
again refrained from commenting on the matter.
Philippines’ successive contention related to China’s activities on
the reefs in the South China Sea, with regards the practices it had
adopted for the purpose of large-scale construction and
reclamation at seven locations in the Spratly Islands[28], and its
practices with regards to fishing[29] in the South China Sea.
Philippines claimed that China had been harming and causing
damage to the marine environment of the South China Sea
through these practices and despite objections from the
surrounding states, China had not ceased its actions. It was also
noted that while some of the fishing ships were not state-
appointed ships and were being manned by non-state actors, the
Chinese government had neither condemned their actions nor
made any efforts to stop them from proceeding. The Tribunal,
assisted by three independent experts on coral reef biology,
expert briefs and satellite imagery, found that China was in
breach of the Convention for failing to stop the fishing vessels
from engaging in harmful harvesting practices[30] and also for its
island-building activities[31]. The Tribunal further opined that
China’s construction on Mischief Reef, without authorization from
Philippines was in violation of Philippines’ sovereign rights in its
exclusive economic zone and continental shelf and a breach of
the Convention[32].
The next consideration before the Tribunal was the demeanour
of China’s law enforcement vessels at Scarborough
Shoal[33] and the lawfulness of these actions. The Philippines
also raised the issue under the relevant provisions of the
Convention on the International Regulations for Preventing of
Collisions at Sea, 1972 (COLREGS). The Tribunal found that
China, through the actions of its law enforcement vessels,
endangered Philippine vessels and personnel and created a
serious risk of collision and found China in breach of Article 94 of
the Convention[34].
The Tribunal, in response to Submission 14 of the Philippines,
opined that China had, in the course of the proceedings of this
arbitration, aggravated and extended its disputes with
Philippines, through its actions of dredging, artificial island-
building and construction activities[35].
Lastly, the Tribunal did not find it necessary to make any further
declaration, owing to the fact that both the parties are already
parties to the Convention and are already obliged to comply with
it.
[1] Available at: http://ichef-
1.bbci.co.uk/news/624/cpsprodpb/18105/production/_90356589_south_china_sea_spratlys.png
[2] As available at: http://foreignpolicy.com/2017/07/31/the-week-donald-trump-lost-the-south-
china-sea/
[3] As available at: http://globalnation.inquirer.net/159582/asean-south-china-sea-arbitral-ruling-
maritime-dispute
[4] “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.”
[5] “Any decision rendered by a court or tribunal having jurisdiction under this section shall be
final and shall be complied with by all the parties to the dispute.”
[6] “The award shall be final and without appeal, unless the parties to the dispute have agreed in
advance to an appellate procedure. It shall be complied with by the parties to the dispute.”
[7] Available at: http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml
[8] P. 11 – 12, Permanent Court of Arbitration’s Award on the South China Sea Arbitration
[9] Available at: http://www.pcacases.com/web/sendAttach/1506; A summarized form can be
found at para 164 of the Permanent Court of Arbitration’s Award on the South China Sea
Arbitration
[10] Para 112, Permanent Court of Arbitration’s Award on the South China Sea Arbitration
[11] The China-ASEAN Declaration on the Conduct of the Parties in the South China Sea 2002
[12] Treaty of Amity and Cooperation in Southeast Asia; Convention on Biological Diversity
[13] This article deals with the Parties’ obligations to “exchange views regarding [the dispute’s]
settlement by negotiation or other peaceful means.”
[14] Para. 278, Permanent Court of Arbitration’s Award on the South China Sea Arbitration
[15] A feature that is exposed at low tide, but covered with water at high tide; low-tide elevations
do not generate entitlement to a territorial sea, exclusive economic zone or continental shelf.
[16] Features that are above water at high tide; of these, those features that have the capacity to
sustain human habitation or economic life of their own are referred to as islands.
[17] High tide features that cannot sustain human or economic life of their own; rocks do not
generate entitlement to a territorial sea, exclusive economic zone or continental shelf.
[18] Para. 403, Permanent Court of Arbitration’s Award on Jurisdiction
[19] Sovereignty of this elevation rests with the State by virtue of its sovereignty over the high-
tide feature.
[20] Exclusive sovereign rights and jurisdiction lie with the coastal state.
[21] These elevations are part of the deep seabed and no state can claim sovereignty over the
same.
[22] This was in line with the Convention which deals only with ‘naturally formed’ features, as per
its Article 13.
[23] Since 2012, China considers the Spratly and Paracel Islands, as well as the Scarborough
Shoal, to be part of the Hainan Province; despite repeated requests from the Philippines, China
never clarified the status of the Hainan Regulation.
[24] The moratorium was placed by China in the area north of the 12°N latitude, was applicable
to foreign ships as well and was, as China claimed, in an effort to rehabilitate the area’s marine
resources.
[25] Rights of the coastal state over the continental shelf
[26] Rights, jurisdiction and duties of the coastal state in the exclusive economic zone
[27] Rights and duties of other states in the exclusive economic zone
[28] These practices were found to cause extensive damage to the coral reef environment.
[29] This includes China’s activities of using propellers to break up coral, fishing for endangered
turtles and using poaching practices.
[30] Articles 192 and 194(5) of UNCLOS
[31] Articles 192, 194(1), 194(5), 197, 123 and 206 of UNCLOS

[32] Articles 60 and 80 of UNCLOS

[33] Especially in 2012 when these vessels physically obstructed Philippine vessels from
approaching the Shoal.

[34] Duties of the flag state.

[35] See Para. 1181 of the Permanent Court of Arbitration’s Award on the South China Sea
Arbitration