“x x x.
A unanimous Award has been issued today by the Tribunal
constituted under Annex VII to the United Nations Convention on the Law of the
Sea (the “Convention”) in the arbitration instituted by the Republic of the
Philippines against the People’s Republic of China.
This arbitration concerned the role of historic rights and
the source of maritime entitlements in the South China Sea, the status of
certain maritime features and the maritime entitlements they are capable of generating,
and the lawfulness of certain actions by China that were alleged by the
Philippines to violate the Convention. In light of limitations on compulsory
dispute settlement under the Convention, the Tribunal has emphasized that it
does not rule on any question of sovereignty over land territory and does not
delimit any boundary between the Parties.
China has repeatedly stated that “it will neither accept nor
participate in the arbitration unilaterally initiated by the Philippines.”
Annex VII, however, provides that the “[a]bsence of a party or failure of a
party to defend its case shall not constitute a bar to the proceedings.” Annex
VII also provides that, in the event that a party does not participate in the
proceedings, a 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.”
Accordingly, throughout these proceedings, the Tribunal has taken steps to test
the accuracy of the Philippines’ claims, including by requesting further written
submissions from the Philippines, by questioning the Philippines both prior to
and during two hearings, by appointing independent experts to report to the
Tribunal on technical matters, and by obtaining historical evidence concerning
features in the South China Sea and providing it to the Parties for comment.
China has also made clear—through the publication of a
Position Paper in December 2014 and in other official statements—that, in its
view, the Tribunal lacks jurisdiction in this matter. Article 288 of the Convention
provides that: “In the event of a dispute as to whether a court or tribunal has
jurisdiction, the matter shall be settled by decision of that court or
tribunal.” Accordingly, the Tribunal convened a hearing on jurisdiction and
admissibility in July 2015 and rendered an Award on Jurisdiction and
Admissibility on 29 October 2015, deciding some issues of jurisdiction and
deferring others for further consideration. The Tribunal then convened a
hearing on the merits from 24 to 30 November 2015.
The Award of today’s date addresses the issues of
jurisdiction not decided in the Award on Jurisdiction and Admissibility and the
merits of the Philippines’ claims over which the Tribunal has jurisdiction. The
Award is final and binding, as set out in Article 296 of the Convention and
Article 11 of Annex VII.
Historic Rights and the ‘Nine-Dash Line’: The Tribunal found
that it has jurisdiction to consider the Parties’ dispute concerning historic
rights and the source of maritime entitlements in the South China Sea.
On the merits, the Tribunal concluded that the Convention
comprehensively allocates rights to maritime areas and that protections for
pre-existing rights to resources were considered, but not adopted in the Convention.
Accordingly, the Tribunal concluded that, to the extent China had historic
rights to resources in the waters of the South China Sea, such rights were
extinguished to the extent they were incompatible with the exclusive economic
zones provided for in the Convention. The Tribunal also noted that, although
Chinese navigators and fishermen, as well as those of other
States, had historically made use of the islands in the South China Sea, there
was no evidence that China had historically exercised exclusive control over
the waters or their resources. The Tribunal concluded that there was no legal
basis for China to claim historic rights to resources within the sea areas
falling within the ‘nine-dash line’.
Status of Features: The Tribunal next considered
entitlements to maritime areas and the status of features. The Tribunal first
undertook an evaluation of whether certain reefs claimed by China are above
water at high tide. Features that are above water at high tide generate an
entitlement to at least a 12 nautical mile territorial sea, whereas features
that are submerged at high tide do not. The Tribunal noted that the reefs have
been heavily modified by land reclamation and construction, recalled that the
Convention classifies features on their natural condition, and relied on
historical materials in evaluating the features.
The Tribunal then considered whether any of the features
claimed by China could generate maritime zones beyond 12 nautical miles. Under
the Convention, islands generate an exclusive economic zone of 200 nautical
miles and a continental shelf, but “[r]ocks which cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone
or continental shelf.”
The Tribunal concluded that this provision depends upon the objective capacity
of a feature, in its natural condition, to sustain either a stable community of
people or economic activity that is not dependent on outside resources or
purely extractive in nature.
The Tribunal noted that the current presence of official
personnel on many of the features is dependent on outside support and not
reflective of the capacity of the features.
The Tribunal found historical evidence to be more relevant
and noted that the Spratly Islands were historically used by small groups of
fishermen and that several Japanese fishing and guano mining enterprises were
attempted.
The Tribunal concluded that such transient use does not
constitute inhabitation by a stable community and that all of the historical
economic activity had been extractive.
Accordingly, the Tribunal concluded that none of the Spratly
Islands is capable of generating extended maritime zones.
The Tribunal also held that the Spratly Islands cannot
generate maritime zones collectively as a unit. Having found that none of the
features claimed by China was capable of generating an exclusive economic zone,
the Tribunal found that it could—without delimiting a boundary—declare that
certain sea areas are within the exclusive economic zone of the Philippines,
because those areas are not overlapped by any possible entitlement of China.
Lawfulness of Chinese Actions: The Tribunal next considered
the lawfulness of Chinese actions in the South China Sea. Having found that
certain areas are within the exclusive economic zone of the Philippines, the
Tribunal found that China had violated the Philippines’ sovereign rights in its
exclusive economic zone by (a) interfering with Philippine fishing and
petroleum exploration, (b) constructing artificial islands and (c) failing to
prevent Chinese fishermen from fishing in the zone.
The Tribunal also held that fishermen from the Philippines
(like those from China) had traditional fishing rights at Scarborough Shoal and
that China had interfered with these rights in restricting access.
The Tribunal further held that Chinese law enforcement
vessels had unlawfully created a serious risk of collision when they physically
obstructed Philippine vessels.
Harm to Marine Environment: The Tribunal considered the
effect on the marine environment of China’s recent large-scale land reclamation
and construction of artificial islands at seven features in the Spratly Islands
and found that China had caused severe harm to the coral reef environment and
violated its obligation to preserve and protect fragile ecosystems and the
habitat of depleted, threatened, or endangered species.
The Tribunal also found that Chinese authorities were aware
that Chinese fishermen have harvested endangered sea turtles, coral, and giant
clams on a substantial scale in the South China Sea (using methods that inflict
severe damage on the coral reef environment) and had not fulfilled their
obligations to stop such activities.
Aggravation of Dispute: Finally, the Tribunal considered
whether China’s actions since the commencement of the arbitration had
aggravated the dispute between the Parties. The Tribunal found that it lacked
jurisdiction to consider the implications of a stand-off between Philippine
marines and Chinese naval and law enforcement vessels at Second Thomas Shoal,
holding that this dispute involved military activities and was therefore
excluded from compulsory settlement. The Tribunal found, however, that China’s
recent large-scale land reclamation and construction of artificial islands was
incompatible with the obligations on a State during dispute resolution
proceedings, insofar as China has inflicted irreparable harm to the marine
environment, built a large artificial island in the Philippines’ exclusive
economic zone, and destroyed evidence of the natural condition of features in
the South China Sea that formed part of the Parties’ dispute.
An expanded summary of the Tribunal’s decisions is set out
below.
The Tribunal was constituted on 21 June 2013 pursuant to the
procedure set out in Annex VII of the Convention to decide the dispute
presented by the Philippines. The Tribunal is composed of Judge Thomas A. Mensah
of Ghana, Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of Poland,
Professor Alfred H.A. Soons of the Netherlands, and Judge Rüdiger Wolfrum of
Germany. Judge Thomas A. Mensah serves as President of the Tribunal. The
Permanent Court of Arbitration acts as the Registry in the proceedings.
Further information about the case may be found at www.pcacases.com/web/view/7,
including the Award on Jurisdiction and Admissibility, the Rules of Procedure,
earlier Press Releases, hearing transcripts, and photographs. Procedural
Orders, submissions by the Philippines, and reports by the Tribunal’s experts
will be made available in due course, as will unofficial Chinese translations
of the Tribunal’s Awards.
Background to the Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) is an
intergovernmental organization established by the 1899 Hague Convention on the
Pacific Settlement of International Disputes. The PCA has 121 Member States.
Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA
facilitates arbitration, conciliation, fact-finding, and other dispute
resolution proceedings among various combinations of States, State entities,
intergovernmental organizations, and private parties.
The PCA’s International
Bureau is currently administering 8 interstate disputes, 73 investor-State
arbitrations, and 34 cases arising under contracts involving a State or other
public entity. The PCA has administered 12 cases initiated by States under
Annex VII to the United Nations Convention on the Law of the Sea.
In July 2013, the Tribunal in the South China Sea
Arbitration appointed the PCA to serve as Registry for the proceedings. The
Tribunal’s Rules of Procedure provide that the PCA shall “maintain an archive
of the arbitral proceedings and provide appropriate registry services as
directed by the Arbitral Tribunal.” Such services include assisting with the
identification and appointment of experts; publishing information about the
arbitration and issuing press releases; organizing the hearings at the Peace
Palace in The Hague; and the financial management of the case, which involves
holding a deposit for expenses in the arbitration, such as to pay arbitrator
fees, experts, technical support, court reporters etc. The Registry also serves
as the channel of communications amongst the Parties and the Tribunal and
observer States.
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