[Lost media] Physics (Philippine educational show from 1964)

Started a thread on the Lost Media Wiki, hopefully to start a search: https://forums.lostmediawiki.com/thread/4543/physics-philippine-educational-show-1964

While working on a Philippine educational television shows special for my YouTube channel (please subscribe and watch my videos), I discovered (not found) a lost show.

From Florangel Rosario (later Dr. Florangel Rosario Braid, one of the framers of the present Constitution), “Instruction by Television in Secondary Schools”, 12 Philippine Studies 723-6, 725 (1964), Available at JSTOR: https://www.jstor.org/stable/42719979?seq=1

The administration of META is carried out by a board of trustees, its policy-making body, and an executive staff. The staff is concentrating its full attention ont he transmission and utilization of 120 telecasts in Physics which are now seen on two television channels at different hours of the day. These telecasts, produced and kinescoped by the Center for Educational Television, are received by secondary schools around the greater Manila rea. Kinescopes (16 mm. television recordings) have an advantage over “live” programs in that they can be reshown through different channels and at different hours of the day to meet the demands of varied school schedules. Another advantage is that they can be distributed to other parts of the country after they have been utilized in the metropolitan area. Rev. Francis Glover, S.J. of the Manila Observatory is the studio teacher in the Physics series. Fr. Glover meets classroom teachers utilizing the series at weekly conferences for previews and discussions. A research program will also attempt to discover conditions necessary to present outstanding lessons under local circumstances.

META is an acronym for Metropolitan Educational Television Association, Inc., described in depth on the JSTOR article.

I always thought Batibot/Sesame (see thread by me on the Lost Media Wiki forums) was the first Philippine educational television show. Glad to discover something new. I wonder if the kinescopes still exist.

Case Digest: Philippines vs. China (South China Sea Arbitration) – quick digest

May fix this digest after the bar. Made this as short as possible by focusing on legal and not factual issues.

I. to IV. skip

V. THE ‘NINE-DASH LINE’ AND CHINA’S CLAIM TO HISTORIC RIGHTS IN THE MARITIME AREAS OF THE SOUTH CHINA SEA (SUBMISSIONS NO. 1 AND 2)

ISSUE: WoN China is entitled only to those rights provided for by the Convention (UNCLOS)

HeldYES, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein (paragraph 277).

Ratio: (Paragraph 243) As a matter of the text alone, the Tribunal considers that the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone. The notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources, in particular if such historic rights are considered exclusive, as China’s claim to historic rights appears to be. Furthermore, the Tribunal considers that, as a matter of ordinary interpretation, the (a) express inclusion of an article setting out the rights of other States and (b) attention given to the rights of other States in the allocation of any excess catch preclude the possibility that the Convention intended for other States to have rights in the exclusive economic zone in excess of those specified.

(Paragraph 245) Moving from the text to the context of exclusive economic zone rights, the Tribunal recalls its earlier observation (see paragraph 231) that the system of maritime zones created by the Convention was intended to be comprehensive and to cover any area of sea or seabed. The same intention for the Convention to provide a complete basis for the rights and duties of the States Parties is apparent in the Preamble, which notes the intention to settle “all issues relating to the law of the sea” and emphasises the desirability of establishing “a legal order for the seas.” The same objective of limiting exceptions to the Convention to the greatest extent possible is also evident in Article 309, which provides that “[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.”

(Paragraph 246) Insofar as China’s relevant rights comprise a claim to historic rights to living and non-living resources within the ‘nine-dash line’, partially in areas that would otherwise comprise the exclusive economic zone or continental shelf of the Philippines, the Tribunal cannot agree with this position. The Convention does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones. China’s claim to historic rights is not compatible with these provision.

(Paragraph 247) The Tribunal considers the text and context of the Convention to be clear in superseding any historic rights that a State may once have had in the areas that now form part of the exclusive economic zone and continental shelf of another State. There is no ambiguity here that would call for the Tribunal to have recourse to the supplementary means of interpretation set out in Article 32 of the Vienna Convention. Nevertheless, in light of the sensitivity of the matters at issue in these proceedings, the Tribunal considers it warranted to recall the origin of and purpose behind the Convention’s provisions on the exclusive economic zone and continental shelf. (see item ii. “The Negotiation of the Convention and the Creation of the Exclusive Economic Zone”, paragraphs 248-54)

(Paragraph 255) The present dispute is not the first instance in which a State has claimed rights in or to the exclusive economic zone of a neighbouring State. The Tribunal considers it useful, for the purpose of confirming its own reasoning, to briefly canvas the other decisions to have addressed claims involving rights in the exclusive economic zone of another State. (See paragraphs 256-260)

(Paragraph 261) For all of the reasons discussed above, the Tribunal concludes that China’s claim to historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention. This is apparent in the text of the Convention which comprehensively addresses the rights of other States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights. It is also reinforced by the negotiating record of the Convention where the importance of adopting a comprehensive instrument was manifest and where the cause of securing the rights of developing States over their exclusive economic zone and continental shelf was championed, in particular, by China

(Paragraph 262) Accordingly, upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.

ISSUE: WoN the rights provided for by the Convention are supplemented or modified by any historic rights, including within the area marked by the ‘nine-dash line’ on Chinese maps

Held: NO, the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein. (paragraph 278).

Ratio: (Paragraph 268) On this issue, the Tribunal notes that historic rights are, in most instances, exceptional rights. They accord a right that a State would not otherwise hold, were it not for the operation of the historical process giving rise to the right and the acquiescence of other States in the process. It follows from this, however, that the exercise of freedoms permitted under international law cannot give rise to a historic right; it involves nothing that would call for the acquiescence of other States and can only represent the use of what international law already freely permits.

(Paragraph 270) Historical navigation and fishing, beyond the territorial sea, cannot therefore form the basis for the emergence of a historic right. As the Chamber in Gulf of Maine recognised with respect to historic U.S. fishing on the Georges Bank, such activity was merely the exercise of freedoms already permitted by international law. Evidence that merely points to even very intensive Chinese navigation and fishing in the South China Sea would be insufficient. Instead, in order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China had engaged in activities that deviated from what was permitted under the freedom of the high seas and that other States acquiesced in such a right. In practice, to establish the exclusive historic right to living and non-living resources within the ‘nine-dash line’, which China now appears to claim, it would be necessary to show that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced in such restrictions. In the Tribunal’s view, such a claim cannot be supported. The Tribunal is unable to identify any evidence that would suggest that China historically regulated or controlled fishing in the South China Sea, beyond the limits of the territorial sea. With respect to the non-living resources of the seabed, the Tribunal does not even see how this would be theoretically possible. Seabed mining was a glimmer of an idea when the Seabed Committee began the negotiations that led to the Convention. Offshore oil extraction was in its infancy and only recently became possible in deep water areas. Indeed, the China National Offshore Oil Corporation itself was only founded in 1982, the same year that China signed the Convention. With respect to the seabed, the Tribunal does not see any historical activity that could have been restricted or controlled, and correspondingly no basis for a historic right.

(Paragraph 271) Accordingly, in the Tribunal’s view, China’s ratification of the Convention in June 1996 did not extinguish historic rights in the waters of the South China Sea. Rather, China relinquished the freedoms of the high seas that it had previously utilised with respect to the living and non-living resources of certain sea areas which the international community had collectively determined to place within the ambit of the exclusive economic zone of other States. At the same time, China gained a greater degree of control over the maritime zones adjacent to and projecting from its coasts and islands. China’s freedom to navigate the South China Sea remains unaffected.

(Paragraph 272) Finally, because the Tribunal considers the question of historic rights with respect to maritime areas to be entirely distinct from that of historic rights to land, the Tribunal considers it opportune to note that certain claims remain unaffected by this decision. In particular, the Tribunal emphasises that nothing in this Award should be understood to comment in any way on China’s historic claim to the islands of the South China Sea. Nor does the Tribunal’s decision that a claim of historic rights to living and non-living resources is not compatible with the Convention limit China’s ability to claim maritime zones in accordance with the Convention, on the basis of such islands. The Tribunal will address the question of the entitlements that can be generated by different features in the South China Sea in the following Chapter.

(Paragraph 271) As a final matter, and for the sake of completeness, the Tribunal considers it appropriate to briefly address whether China has acquired rights or jurisdiction at variance with the Convention in the years since the Convention entered into force in 1996.

(Paragraph 273) The Tribunal does not consider it necessary here to address in general whether and under which conditions the Convention may be modified by State practice. It is sufficient to say that a unilateral act alone is not sufficient. Such a claim would require the same elements discussed above with respect to historic rights: the assertion by a State of a right at variance with the Convention, acquiescence therein by the other States Parties, and the passage of sufficient time to establish beyond doubt the existence of both the right and a general acquiescence. Here, however, there is no basis for such a claim. Since the adoption of the Convention, historic rights were mentioned in China’s Exclusive Economic Zone and Continental Shelf Act, but without anything that would enable another State to know the nature or extent of the rights claimed. The extent of the rights asserted within the ‘nine-dash line’ only became clear with China’s Notes Verbales of May 2009. Since that date, China’s claims have been clearly objected to by other States.

VI. THE STATUS OF FEATURES IN THE SOUTH CHINA SEA (SUBMISSIONS NO. 3 TO 7)

(Paragraph 280, note terms) In the terminology of the Convention, a feature that is exposed at low tide but covered with water at high tide is referred to as a ‘low-tide elevation’. Features that are above water at high tide are referred to generically as ‘islands’. However, the entitlements that an island can generate to maritime zones will depend upon the application of Article 121(3) of the Convention and whether the island has the capacity to “sustain human habitation or economic life of [its] own.” Throughout this Chapter, the Tribunal will refer to the generic category of features that meet the definition of an island in Article 121(1) as ‘high-tide features’. The Tribunal will use the term ‘rocks’ for high-tide features that “cannot sustain human habitation or economic life of their own” and which therefore, pursuant to Article 121(3), are disqualified from generating an exclusive economic zone or continental shelf. For high-tide features which are not rocks, and which pursuant to Article 121(2) enjoy the same entitlements as other land territory under the Convention, the Tribunal will use the term ‘fully entitled islands’. ‘Rocks’ and ‘fully entitled islands’ are thus both sub-sets of the broader category of ‘high-tide features’. Finally, the Tribunal will refer to features that are fully submerged, even at low tide, as ‘submerged features’.

Issue: What features are high-tide and low-tide elevations?

Held: (Paragraph 382) The following features include, or in their natural condition did include, rocks or sand cays that remain above water at high tide and are, accordingly, high-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North).

(Paragraph 383) The following features are, or in their natural condition were, exposed at low tide and submerged at high tide and are, accordingly low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas Shoal. 384. The Tribunal additionally records that Hughes Reef lies within 12 nautical miles of the high-tide features on McKennan Reef and Sin Cowe Island, Gaven Reef (South) lies within 12 nautical miles of the high-tide features at Gaven Reef (North) and Namyit Island, and that Subi Reef lies within 12 nautical miles of the high-tide feature of Sandy Cay on the reefs to the west of Thitu.

Ratio: (Paragraph 303) The definition and properties of low-tide elevations are set out in Article 13 of the Convention, which provides as follows:

Article 13

Low-tide elevations

1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.

2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.

(Paragraph 304) This definition operates in parallel with that of an island in Article 121(1) of the Convention, which provides that “[a]n island is a naturally formed area of land, surrounded by water, which is above water at high tide.”

(Paragraph 305) With respect to low-tide elevations, several points necessarily follow from this pair of definitions. First, the inclusion of the term “naturally formed” in the definition of both a low-tide elevation and an island indicates that the status of a feature is to be evaluated on the basis of its natural condition. As a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it.

(Paragraph 308) Article 13(2) states that, except where a low-tide elevation falls within the breadth of a territorial sea generated from a high-tide feature or mainland, it generates no territorial sea of its own. Article 13(2) does not expressly state that a low-tide elevation is not entitled to an exclusive economic zone or continental shelf. Nevertheless the Tribunal considers that this restriction is necessarily implied in the Convention. It follows automatically from the operation of Articles 57 and 76, which measure the breadth of the exclusive economic zone and continental shelf from the baseline for the territorial sea. Ipso facto, if a low-tide elevation is not entitled to a territorial sea, it is not entitled to an exclusive economic zone or continental shelf. The same restriction follows implicitly from Article 121(3), which provides that even certain high-tide features are deemed to be rocks that are ineligible to generate an exclusive economic zone or continental shelf.

(Paragraph 309) With respect to the status of low-tide elevations, the Tribunal considers that notwithstanding the use of the term “land” in the physical description of a low-tide elevation, such low-tide elevations do not form part of the land territory of a State in the legal sense. Rather they form part of the submerged landmass of the State and fall within the legal regimes for the territorial sea or continental shelf, as the case may be. Accordingly, and as distinct from land territory, the Tribunal subscribes to the view that “low-tide elevations cannot be appropriated, although ‘a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself’.”

(Paragraph 311) The Tribunal sees nothing in the Convention, and no rule of customary international law, that would mandate that the status of low-tide elevations and high-tide features/islands be determined against any particular high-water datum. Accordingly, the Tribunal considers that States are free under the Convention to claim a high-tide feature or island on the basis of any high-water datum that reasonably corresponds to the ordinary meaning of the term “high tide” in Articles 13 and 121. Ordinarily, this would also be the height datum for nautical charts published by that State, above which rocks would be depicted as not covering at high tide.

(Paragraph 312) In the present case, the situation is complicated by the fact that the features in question are claimed by multiple States and may or may not lie within one or another State’s exclusive economic zone and continental shelf.

(Paragraph 313) The Tribunal considers that either Mean Higher High Water or Mean High Water Springs would be an appropriate approximation of “high tide” if determined on the basis of Chinese nautical charts….Ultimately, however, the tidal range in the South China Sea is comparatively small and the selection of a vertical datum will, in most instances, make no difference regarding the status of a feature.

Skipped application for each feature

Issue: WoN Scarborough Shoal and the high-tide features in the Spratly Islands generate entitlements to exclusive economic zones or continental shelfs

HeldNO.

Ratio: (Paragraph 386) Article 121 establishes a regime of islands as follows:

Article 121

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

(Paragraph 540) First, for the reasons set out, the use of the word “rock” does not limit the provision to features composed of solid rock. The geological and geomorphological characteristics of a high-tide feature are not relevant to its classification pursuant to Article 121(3).

(Paragraph 541) Second, the status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own.

(Paragraph 542) Third, with respect to “human habitation”, the critical factor is the non-transient character of the inhabitation, such that the inhabitants can fairly be said to constitute the natural population of the feature, for whose benefit the resources of the exclusive economic zone were seen to merit protection. The term “human habitation” should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain. Such a community need not necessarily be large, and in remote atolls a few individuals or family groups could well suffice. Periodic or habitual residence on a feature by a nomadic people could also constitute habitation, and the records of the Third UN Conference record a great deal of sensitivity to the livelihoods of the populations of small island nations. An indigenous population would obviously suffice, but also non-indigenous inhabitation could meet this criterion if the intent of the population was truly to reside in and make their lives on the islands in question.

(Paragraph 543) Fourth, the term “economic life of their own” is linked to the requirement of human habitation, and the two will in most instances go hand in hand. Article 121(3) does not refer to a feature having economic value, but to sustaining “economic life”. The Tribunal considers that the “economic life” in question will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features. Additionally, Article 121(3) makes clear that the economic life in question must pertain to the feature as “of its own”. Economic life, therefore, must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea. Economic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall inherently short with respect to this necessary link to the feature itself. Extractive economic activity to harvest the natural resources of a feature for the benefit of a population elsewhere certainly constitutes the exploitation of resources for economic gain, but it cannot reasonably be considered to constitute the economic life of an island as its own.

(Paragraph 544) Fifth, the text of Article 121(3) is disjunctive, such that the ability to sustain either human habitation or an economic life of its own would suffice to entitle a high-tide feature to an exclusive economic zone and continental shelf. However, as a practical matter, the Tribunal considers that a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community. One exception to that view should be noted for the case of populations sustaining themselves through a network of related maritime features. The Tribunal does not believe that maritime features can or should be considered in an atomised fashion. A population that is able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the feature on the grounds that its habitation is not sustained by a single feature individually. Likewise, a population whose livelihood and economic life extends across a constellation of maritime features is not disabled from recognising that such features possess an economic life of their own merely because not all of the features are directly inhabited.

(Paragraph 545) Sixth, Article 121(3) is concerned with the capacity of a maritime feature to sustain human habitation or an economic life of its own, not with whether the feature is presently, or has been, inhabited or home to economic life. The capacity of a feature is necessarily an objective criterion. It has no relation to the question of sovereignty over the feature. For this reason, the determination of the objective capacity of a feature is not dependent on any prior decision on sovereignty, and the Tribunal is not prevented from assessing the status of features by the fact that it has not and will not decide the matter of sovereignty over them.

(Paragraph 546) Seventh, the capacity of a feature to sustain human habitation or an economic life of its own must be assessed on a case-by-case basis. The drafters of the Convention considered proposals with any number of specific tests and rejected them in favour of the general formula set out in Article 121(3). The Tribunal considers that the principal factors that contribute to the natural capacity of a feature can be identified. These would include the presence of water, food, and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time. Such factors would also include considerations that would bear on the conditions for inhabiting and developing an economic life on a feature, including the prevailing climate, the proximity of the feature to other inhabited areas and populations, and the potential for livelihoods on and around the feature. The relative contribution and importance of these factors to the capacity to sustain human habitation and economic life, however, will vary from one feature to another. While minute, barren features may be obviously uninhabitable (and large, heavily populated features obviously capable of sustaining habitation), the Tribunal does not consider that an abstract test of the objective requirements to sustain human habitation or economic life can or should be formulated. This is particularly the case in light of the Tribunal’s conclusion that human habitation entails more than the mere survival of humans on a feature and that economic life entails more than the presence of resources. The absence of an abstract test, however, has particular consequences (that will be discussed below) for the Tribunal’s approach to evidence of conditions on, and the capacity of, the features in question.

(Paragraph 547) Eighth, the Tribunal considers that the capacity of a feature should be assessed with due regard to the potential for a group of small island features to collectively sustain human habitation and economic life. On the one hand, the requirement in Article 121(3) that the feature itself sustain human habitation or economic life clearly excludes a dependence on external supply. A feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3). Nor does economic activity that remains entirely dependent on external resources or that is devoted to using a feature as an object for extractive activities, without the involvement of a local population, constitute a feature’s “own” economic life. At the same time, the Tribunal is conscious that remote island populations often make use of a number of islands, sometimes spread over significant distances, for sustenance and livelihoods. An interpretation of Article 121(3) that sought to evaluate each feature individually would be in keeping neither with the realities of life on remote islands nor with the sensitivity to the lifestyles of small island peoples that was apparent at the Third UN Conference. Accordingly, provided that such islands collectively form part of a network that sustains human habitation in keeping with the traditional lifestyle of the peoples in question, the Tribunal would not equate the role of multiple islands in this manner with external supply. Nor would the local use of nearby resources as part of the livelihood of the community equate to the arrival of distant economic interests aimed at extracting natural resources.

(Paragraph 548) Ninth, in light of the Tribunal’s conclusions on the interpretation of Article 121(3), evidence of the objective, physical conditions on a particular feature can only take the Tribunal so far in its task. In the Tribunal’s view, evidence of physical conditions will ordinarily suffice only to classify features that clearly fall within one category or the other. If a feature is entirely barren of vegetation and lacks drinkable water and the foodstuffs necessary even for basic survival, it will be apparent that it also lacks the capacity to sustain human habitation. The opposite conclusion could likewise be reached where the physical characteristics of a large feature make it definitively habitable. The Tribunal considers, however, that evidence of physical conditions is insufficient for features that fall close to the line. It will be difficult, if not impossible, to determine from the physical characteristics of a feature alone where the capacity merely to keep people alive ends and the capacity to sustain settled habitation by a human community begins. This will particularly be the case as the relevant threshold may differ from one feature to another.

(Paragraph 549) In such circumstances, the Tribunal considers that the most reliable evidence of the capacity of a feature will usually be the historical use to which it has been put. Humans have shown no shortage of ingenuity in establishing communities in the far reaches of the world, often in extremely difficult conditions. If the historical record of a feature indicates that nothing resembling a stable community has ever developed there, the most reasonable conclusion would be that the natural conditions are simply too difficult for such a community to form and that the feature is not capable of sustaining such habitation. In such circumstances, the Tribunal should consider whether there is evidence that human habitation has been prevented or ended by forces that are separate from the intrinsic capacity of the feature. War, pollution, and environmental harm could all lead to the depopulation, for a prolonged period, of a feature that, in its natural state, was capable of sustaining human habitation. In the absence of such intervening forces, however, the Tribunal can reasonably conclude that a feature that has never historically sustained a human community lacks the capacity to sustain human habitation.

(Paragraph 550) Conversely, if a feature is presently inhabited or has historically been inhabited, the Tribunal should consider whether there is evidence to indicate that habitation was only possible through outside support. Trade and links with the outside world do not disqualify a feature to the extent that they go to improving the quality of life of its inhabitants. Where outside support is so significant that it constitutes a necessary condition for the inhabitation of a feature, however, it is no longer the feature itself that sustains human habitation. In this respect, the Tribunal notes that a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation. Bearing in mind that the purpose of Article 121(3) is to place limits on excessive and unfair claims by States, that purpose would be undermined if a population were installed on a feature that, as such, would not be capable of sustaining human habitation, precisely to stake a claim to the territory and the maritime zones generated by it. The Tribunal notes that, as a result, evidence of human habitation that predates the creation of exclusive economic zones may be more significant than contemporary evidence, if the latter is clouded by an apparent attempt to assert a maritime claim.

(Paragraph 551) The same mode of analysis would apply equally to the past or current existence of economic life. The Tribunal would first consider evidence of the use to which the feature has historically been put before considering whether there is evidence to suggest that that historical record does not fully reflect the economic life the feature could have sustained in its natural condition.

(Paragraph 615) On the basis of the evidence in the record, it appears to the Tribunal that the principal high-tide features in the Spratly islands are capable of enabling the survival of small groups of people. There is historical evidence of potable water, although of varying quality, that could be combined with rainwater collection and storage. There is also naturally occurring vegetation capable of providing shelter and the possibility of at least limited agriculture to supplement the food resources of the surrounding waters. The record indicates that small numbers of fishermen, mainly from Hainan, have historically been present on Itu Aba and the other more significant features and appear to have survived principally on the basis of the resources at hand (notwithstanding the references to annual deliveries of rice and other sundries).

As applied to the facts

(Paragraph 617) The first question for the Tribunal is whether any of this activity constitutes “human habitation” or an “economic life of its own” for the purposes of Article 121(3). The second is whether there is evidence to suggest that the historical record of human activity on the Spratly Islands is not proof of the natural capacity of the features.

(Paragraph 620) Finally, the Tribunal does not consider that the military or other governmental personnel presently stationed on the features in the Spratly Islands by one or another of the littoral States suffice to constitute “human habitation” for the purposes of Article 121(3). These groups are heavily dependent on outside supply, and it is difficult to see how their presence on any of the South China Sea features can fairly be said to be sustained by the feature itself, rather than by a continuous lifeline of supply and communication from the mainland. Military or other governmental personnel are deployed to the Spratly Islands in an effort to support the various claims to sovereignty that have been advanced. There is no evidence that they choose to inhabit there of their own volition, nor can it be expected that any would remain if the official need their presence were to dissipate. Even where the current human presence in the Spratly Islands includes civilians, as is the case on at least Thitu and (very recently) Itu Aba, the Tribunal considers that their presence there is motivated by official considerations and would not have occurred, but for the disputed claims to sovereignty over these features.

(Paragraph 621) The Tribunal sees no indication that anything fairly resembling a stable human community has ever formed on the Spratly Islands. Rather, the islands have been a temporary refuge and base of operations for fishermen and a transient residence for labourers engaged in mining and fishing. The introduction of the exclusive economic zone was not intended to grant extensive maritime entitlements to small features whose historical contribution to human settlement is as slight as that. Nor was the exclusive economic zone intended to encourage States to establish artificial populations in the hope of making expansive claims, precisely what has now occurred in the South China Sea. On the contrary, Article 121(3) was intended to prevent such developments and to forestall a provocative and counterproductive effort to manufacture entitlements.

(Paragraph 622) The Tribunal sees no evidence that would suggest that the historical absence of human habitation on the Spratly Islands is the product of intervening forces or otherwise does not reflect the limited capacity of the features themselves. Accordingly, the Tribunal concludes that Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay are not capable of sustaining human habitation within the meaning of Article 121(3). The Tribunal has also considered, and reaches the same conclusion with respect to, the other, less significant high-tide features in the Spratly Islands, which are even less capable of sustaining human habitation, but does not consider it necessary to list them individually.

(Paragraph 623) As set out at paragraph 543, the Tribunal considers that, to constitute the economic life of the feature, economic activity must be oriented around the feature itself and not be focused solely on the surrounding territorial sea or entirely dependent on external resources. The Tribunal also considers that extractive economic activity, without the presence of a stable local community, necessarily falls short of constituting the economic life of the feature.

(Paragraph 625) The Tribunal concludes that Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay are not capable of sustaining an economic life of their own within the meaning of Article 121(3). The Tribunal has also considered, and reaches the same conclusion with respect to, the other, less significant high-tide features in the Spratly Islands, which are even less capable of sustaining economic life, but does not consider it necessary to list them individually.

Issue: WoN the Tribunal has jurisdiction to declare that “Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and continental shelf of the Philippines.”

HeldYES, because no delimitation is required—or, indeed, even possible— there is no possible basis for the application of the exception to jurisdiction (paragraph 633)

Ratio: (Paragraph 631) The Tribunal has already held (see paragraphs 277 to 278) that there is no legal basis for any Chinese historic rights, or sovereign rights and jurisdiction beyond those provided for in the Convention, in the waters of the South China Sea encompassed by the ‘nine-dash line’. The Tribunal sees no evidence that, prior to the Convention, China ever established a historic right to the exclusive use of the living and non-living resources of the waters of the South China Sea, whatever use it may historically have made of the Spratly Islands themselves. In any event, any such right would have been superseded by the adoption of the Convention and the legal creation of the exclusive economic zone. The ‘nine-dash line’ thus cannot provide a basis for any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas Shoal that would overlap the entitlement of the Philippines to an exclusive economic zone and continental shelf generated from baselines on the island of Palawan.

(Paragraph 632) The Tribunal has now held (see paragraphs 378 and 381) that Mischief Reef and Second Thomas Shoal are low-tide elevations and, as such, generate no entitlement to maritime zones of their own. The Tribunal has also now held (see paragraph 626) that neither Itu Aba, nor any other high-tide feature in the Spratly Islands, is a fully entitled island for the purposes of Article 121 of the Convention. As such, pursuant to the operation of Article 121(3) of the Convention, these features are legally considered to be “rocks” and to generate no exclusive economic zone or continental shelf. The Tribunal also notes that there is no maritime feature that is above water at high tide in its natural condition and that is located within 12 nautical miles of either Mischief Reef or Second Thomas Shoal.

(Paragraph 633) From these conclusions, it follows that there exists no legal basis for any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas Shoal. Accordingly, there is no situation of overlapping entitlements that would call for the application of Articles 15, 74, or 83 to delimit the overlap. Because no delimitation is required—or, indeed, even possible— there is no possible basis for the application of the exception to jurisdiction in Article 298(1)(a)(i).

VII. CHINESE ACTIVITIES IN THE SOUTH CHINA SEA (SUBMISSIONS NO. 8 TO 13)

Issue: WoN China has unlawfully interfered with the enjoyment and exercise of the sovereign rights of the Philippines with respect to the living and non-living resources of its exclusive economic zone and continental shelf

Held: YES.

Ratio: (Paragraph 695) Because the areas of the South China Sea at issue for Submission No. 8 can only constitute the exclusive economic zone of the Philippines, the Tribunal also considers that Article 297(3)(a) and the law enforcement exception in Article 298(1)(b) of the Convention pose no obstacle to its jurisdiction. These provisions serve to limit compulsory dispute settlement where a claim is brought against a State’s exercise of its sovereign rights in respect of living resources in its own exclusive economic zone. These provisions do not apply where a State is alleged to have violated the Convention in respect of the exclusive economic zone of another State. The Tribunal therefore concludes that it has jurisdiction with respect to the Philippines’ Submission No. 8.

(Paragraph 698) The Convention is clear on the allocation of rights within the exclusive economic zone and continental shelf. With respect to non-living resources, Article 77 of the Convention provides that the “coastal State”—which in this case is necessarily the Philippines—“exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” The Convention goes on to make clear that “[t]he rights referred to . . . are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.” These provisions are unequivocal and require no further interpretation. Within its continental shelf, only the Philippines, or another State acting with its permission, may exploit the resources of the sea-bed.

(Paragraph 699) The rights of other States in the waters above the continental shelf and with respect to submarine cables and pipelines are expressly detailed in Articles 78 and 79 of the Convention. Nothing in these Articles permits any State to prevent another State from exercising sovereign rights over its own continental shelf.

(Praragraph 700) The same clarity is evident with respect to living resources and the provisions of the exclusive economic zone. Article 56 is clear in allocating to the coastal State—which again is necessarily the Philippines in the areas in question—“sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone . . . .” The rights of other States in the exclusive economic zone are detailed in Article 58 and are limited to “navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.” The rights of other States do not include restricting a coastal State from exploiting the living resources of its own exclusive economic zone. Indeed, the very notion is incompatible with the concept of sovereign rights and the exclusive jurisdiction over fisheries that was the central objective motivating the introduction of the exclusive economic zone concept (see paragraphs 248 to 254).

(Paragraph 716) The Tribunal finds that China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the Philippines’ sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank. The Tribunal further finds that China has, by promulgating its 2012 moratorium on fishing in the South China Sea, without exception for areas of the South China Sea falling within the exclusive economic zone of the Philippines and without limiting the moratorium to Chinese flagged vessels, breached Article 56 of the Convention with respect to the Philippines’ sovereign rights over the living resources of its exclusive economic zone.

Issue: WoN China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines

HeldYES.

Ratio: (Paragraph 736) In this respect, Article 61(1) of the Convention provides that “[t]he coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.” The remainder of Article 61 concerns the process through which the coastal State will determine the allowable catch.

(Paragraph 737) Article 62 of the Convention then outlines the circumstances in which vessels of other States will have access to the fisheries of a State’s exclusive economic zone. Article 62(2) provides that “[w]here the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch . . . .” Article 62(3) then provides guidance on the factors to be considered in according access to other States.

(Paragraph 738) These provisions make clear that it is the Philippines that controls the process of granting and regulating access to the fisheries of its exclusive economic zone, subject to the provisions of the Convention in doing so. It is thus for the Philippines to determine the allowable catch for fisheries within its exclusive economic zone. If after determining the allowable catch, the Philippines also determines that it lacks the capacity to fully harvest the allowable catch, it must allow other States access to the fishery.

(Paragraph 739) Article 62(4) then imposes an obligation on nationals of other States fishing in the exclusive economic zone to comply with the laws and regulations of the coastal State and sets out an illustrative list of the areas that may be regulated.

(Paragraph 740) Article 62(4) thus expressly requires Chinese nationals to comply with the licensing and other access procedures of the Philippines within any area forming part of the exclusive economic zone of the Philippines. The Convention imposes an obligation directly on private parties engaged in fishing that would apply to Chinese nationals and vessels engaged in fishing at Mischief Reef and Second Thomas Shoal and require them to comply with the terms and conditions of the laws and regulations of the Philippines.

(Paragraph 741) The Convention also imposes obligations on States Parties with respect to activities in the exclusive economic zone of other States. Article 58(3) of the Convention provides as follows:

In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.

(Paragraph 744) Given the importance of fisheries to the entire concept of the exclusive economic zone, the degree to which the Convention subordinates fishing within the exclusive economic zone to the control of the coastal State, and the obligations expressly placed on the nationals of other States by Article 62(4) of the Convention, the Tribunal considers that anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention.

(Paragraph 756) The obligation to have due regard to the rights of the Philippines is unequivocally breached when vessels under Chinese Government control act to escort and protect Chinese fishing vessels engaged in fishing unlawfully in the Philippines’ exclusive economic zone.

(Paragraph 757) the Tribunal finds that China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines’ sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of the Convention.

Issue: WoN China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal

Held: YES.

Ratio: (Paragraph 804) Under the Convention, therefore, traditional fishing rights are accorded differing treatment across maritime zones:

(a) In archipelagic waters, traditional fishing rights are expressly protected, and Article 51(1) of the Convention provides that “an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.”

(b) In the exclusive economic zone, in contrast, traditional fishing rights are extinguished, except insofar as Article 62(3) specifies that “the need to minimize economic dislocation in States whose nationals have habitually fished in the zone” shall constitute one of the factors to be taken into account by the costal State in giving access to any surplus in the allowable catch. The Tribunal considers that the inclusion of this provision—which would be entirely unnecessary if traditional fishing rights were preserved in the exclusive economic zone—confirms that the drafters of the Convention did not intend to preserve such rights. The Convention does not, of course, preclude that States may continue to recognise traditional fishing rights in the exclusive economic zone in their legislation, in bilateral fisheries access agreements, or through regional fisheries management organisations. Such recognition would, in most instances, be commendable, but it is not required by the Convention, except to the extent specified in Article 62(3).

(c) Finally, in the territorial sea, the Convention continued the existing legal regime largely without change. The innovation in the Convention was the adoption of an agreed limit of 12 nautical miles on the breadth of the territorial sea, not the development of its legal content. The Tribunal sees nothing that would suggest that the adoption of the Convention was intended to alter acquired rights in the territorial sea and concludes that within that zone—in contrast to the exclusive economic zone—established traditional fishing rights remain protected by international law. The Tribunal also notes that the vast majority of traditional fishing takes place in close proximity to the coast.

(Paragraph 812) In the Tribunal’s view, it is not necessary to explore the limits on the protection due in customary international law to the acquired rights of individuals and communities engaged in traditional fishing. The Tribunal is satisfied that the complete prevention by China of fishing by Filipinos at Scarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen. This is particularly the case given that China appears to have acted to prevent fishing by Filipinos, specifically, while permitting its own nationals to continue. The Tribunal is cognisant that April and May 2012 represented a period of heightened tensions between the Philippines and China at Scarborough Shoal. China’s dispute with the Philippines over sovereignty and law enforcement at Scarborough Shoal, however, was with the Philippine Government. The Tribunal does not see corresponding circumstances that would have justified taking action against Filipino fishermen engaged in their traditional livelihood or that would have warranted continuing to exclude Filipino fishermen from Scarborough Shoal for months after the Philippines had withdrawn its official vessels. The Tribunal notes, however, that it would have reached exactly the same conclusion had the Philippines established control over Scarborough Shoal and acted in a discriminatory manner to exclude Chinese fishermen engaged in traditional fishing.

(Paragraph 813) With respect to the Philippines’ claim that China’s actions at Scarborough Shoal represented a specific failure to fulfil its duties pursuant to Article 2(3) of the UN Charter and Article 279 of the Convention to settle disputes by peaceful means, the Tribunal notes that both Parties found fault with the other in their handling of the standoff and that both found cause to allege breaches of the UN Charter. 864 The Tribunal does not find the record before it sufficient to support such a claim in respect of either Party.

Issue: WoN China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal, Second Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef

Held: YES.

Ratio: (Paragraph 938) The Tribunal will not deem activities to be military in nature when China itself has consistently and officially resisted such classifications and affirmed the opposite at the highest levels. Accordingly, the Tribunal accepts China’s repeatedly affirmed position that civilian use [comprises] the primary (if not the only) motivation underlying the extensive construction activities on the seven reefs in the Spratly Islands. As civilian activity, the Tribunal notes that China’s conduct falls outside the scope of Article 298(1)(b) and concludes that it has jurisdiction to consider the Philippines’ Submissions No. 11 and 12(b).

(Paragraph 939) The protection and preservation of the marine environment form a prominent component of the legal regime of the Convention, the importance of which is recognised in the Preamble in the following terms:

Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment . . .

(Paragraph 940) The substantive provisions relevant to the marine environment comprise their own Part XII of the Convention. At the outset, the Tribunal notes that the obligations in Part XII apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it. Accordingly, questions of sovereignty are irrelevant to the application of Part XII of the Convention. The Tribunal’s findings in this Chapter have no bearing upon, and are not in any way dependent upon, which State is sovereign over features in the South China Sea.

(Paragraph 941) Article 192 of the Convention provides that “States have the obligation to protect and preserve the marine environment.” Although phrased in general terms, the Tribunal considers it well established that Article 192 does impose a duty on States Parties, the content of which is informed by the other provisions of Part XII and other applicable rules of international law. This “general obligation” extends both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition. Article 192 thus entails the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment. The corpus of international law relating to the environment, which informs the content of the general obligation in Article 192, requires that States “ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control.” Thus States have a positive “‘duty to prevent, or at least mitigate’ significant harm to the environment when pursuing large-scale construction activities.” The Tribunal considers this duty informs the scope of the general obligation in Article 192.

(Paragraph 942) The content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII, including Article 194, as well as by reference to specific obligations set out in other international agreements, as envisaged in Article 237 of the Convention.

(Paragraph 943) Article 194 concerns “pollution of the marine environment,” a term which is defined in Article 1 of the Convention to mean “the introduction by man, directly or indirectly, of substances . . . into the marine environment . . . which results or is likely to result in such deleterious effects as harm to living resources and marine life . . . [and] hindrance to . . . legitimate uses of the sea . . . .” The “measures to prevent, reduce and control pollution of the marine environment” are set out in Article 194.

(Paragraph 944) Articles 192 and 194 set forth obligations not only in relation to activities directly taken by States and their organs, but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment.

(Paragraph 945) The fifth paragraph of Article 194 covers all measures under Part XII of the Convention (whether taken by States or those acting under their jurisdiction and control) that are necessary to protect and preserve “rare or fragile ecosystems” as well as the habitats of endangered species. As observed by the tribunal in Chagos Marine Protected Area, the phrasing of Article 194(5) confirms that Part XII is “not limited to measures aimed strictly at controlling marine pollution,” which while “certainly an important aspect of environmental protection . . . is by no means the only one.” An ‘ecosystem’ is not defined in the Convention, but internationally accepted definitions include that in Article 2 of the CBD, which defines ecosystem to mean “a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.” The Tribunal has no doubt from the scientific evidence before it that the marine environments where the allegedly harmful activities took place in the present dispute constitute “rare or fragile ecosystems.” They are also the habitats of “depleted, threatened or endangered species,” including the giant clam, the hawksbill turtle and certain species of coral and fish.

(Paragraph 946) Part XII of the Convention also includes Article 197 on cooperation, which requires States to cooperate on a global or regional basis, “directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.” In its provisional measures order in MOX Plant, the International Tribunal for the Law of the Sea emphasised that “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law.” Related to regional cooperation is the provision in Article 123 of the Convention, which covers semienclosed seas, such as the South China Sea.

(Paragraph 947) The final provisions of Part XII relevant to the Philippines’ Submissions concern monitoring and environmental assessment. Article 204 requires States to endeavour as far as practicable to “observe, measure, evaluate and analyse . . . the risks or effects of pollution on the marine environment” and to keep under surveillance the effects of any activities which they “permit or in which they engage” in order to determine whether they are likely to pollute the marine environment. Article 205 requires State to publish reports of the results from such monitoring to the competent international organisations, which should make them available to all States. Finally, Article 206 relates to environmental impact assessments.

(Paragraph 948) Article 206 ensures that planned activities with potentially damaging effects may be effectively controlled and that other States are kept informed of their potential risks. In respect of Article 206, the International Tribunal for the Law of the Sea emphasised that “the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law.”  As such, Article 206 has been described as an “essential part of a comprehensive environmental management system” and as a “particular application of the obligation on states, enunciated in Article 194(2).” While the terms “reasonable” and “as far as practicable” contain an element of discretion for the State concerned, the obligation to communicate reports of the results of the assessments is absolute.

(Paragraph 992) Based on the considerations outlined above, the Tribunal finds that China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention.

(Paragraph 993) The Tribunal further finds that China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the Convention.

Issue: WoN China’s occupation of and construction activities on Mischief Reef (a) violate the provisions of the Convention concerning artificial islands, installations and structures; . . . (c) constitute unlawful acts of attempted appropriation in violation of the Convention

HeldYES for both.

Ratio: (Paragraph 1035) These provisions speak for themselves. In combination, they endow the coastal State—which in this case is necessarily the Philippines—with exclusive decision-making and regulatory power over the construction and operation of artificial islands, and of installations and structures covered by Article 60(1), on Mischief Reef. Within its exclusive economic zone and continental shelf, only the Philippines, or another authorised State, may construct or operate such artificial islands, installations, or structures.

(Paragraph 1036) The Tribunal considers that China’s initial structures on Mischief Reef from 1995 onwards constituted installations or structures for the purposes of Article 60(1). The Tribunal takes China at its word that the original purpose of the structures was to provide shelter for fishermen and concludes that this is an economic purpose. The Tribunal also notes that the original structures, which China declined to permit fishermen from the Philippines to use, also had the potential to interfere with the exercise by the Philippines of its rights in the exclusive economic zone. Accordingly, pursuant to Article 60 of the Convention, only the Philippines could construct or authorise such structures.

(Paragraph 1037) China’s activities at Mischief Reef have since evolved into the creation of an artificial island. China has elevated what was originally a reef platform that submerged at high tide into an island that is permanently exposed. Such an island is undoubtedly “artificial” for the purposes of Article 60. It is equally clear that China has proceeded without receiving, or even seeking, the permission of the Philippines. Indeed, China’s conduct has taken place in the face of the Philippines’ protests. Article 60 is unequivocal in permitting only the coastal State to construct or authorise such artificial islands.

(Paragraph 1040) The Tribunal recalls, first, that Mischief Reef is incapable of appropriation. As the Tribunal has already concluded at paragraphs 307 to 309, low-tide elevations “do not form part of the land territory of a State in the legal sense.” Rather, such features form part of the submerged landmass of a State and, in the case of Mischief Reef, fall within the legal regime for the continental shelf. In consequence, low-tide elevations, as distinct from land territory, cannot be appropriated. As the Tribunal has now found, Mischief Reef is a low-tide elevation; it follows from this that it is incapable of appropriation, by occupation or otherwise.

(Paragraph 1041) As a low-tide elevation within the Philippines’ exclusive economic zone and continental shelf, the legal relevance of Mischief Reef is that it lies within an area in which sovereign rights are vested exclusively in the Philippines and where only the Philippines may construct or authorise artificial islands. The Tribunal has already held in relation to the Philippines’ Submissions No. 8 and 9 that China’s actions at Mischief Reef have unlawfully interfered with the Philippines’ enjoyment of its sovereign rights. 1042. Having established that Mischief Reef is not capable of appropriation and addressed the effect of China’s actions on the Philippines’ sovereign rights, the Tribunal sees no need to address Submission No. 12(c).

Issue: WoN China has breached its obligations under the Convention by operating its law enforcement vessels in a dangerous manner causing serious risk of collision to Philippine vessels navigating in the vicinity of Scarborough Shoal

Held: YES.

Ratio: (Paragraph 1082) Although the Philippines did not become a party to the COLREGS until 2013, in assessing the Philippines’ Submission No. 13 the Tribunal considers the COLREGS to bind both Parties relating to the conduct of their respective vessels by virtue of Article 94 of the Convention. Article 94(1) of the Convention requires flag States to effectively exercise their “jurisdiction and control” in administrative, technical, and social matters over ships flying their flag. Subsection 3 of that article clarifies the scope of flag States’ duties, requiring them to “take such measures . . . as are necessary to ensure safety at sea,” including measures concerning, inter alia, “the use of signals, the maintenance of communications and the prevention of collisions.” The precise scope of those obligations is clarified in Article 94(5)

(Paragraph 1083) In the Tribunal’s view, Article 94 incorporates the COLREGS into the Convention, and they are consequently binding on China. It follows that a violation of the COLREGS, as “generally accepted international regulations” concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself. With this in mind, the Tribunal turns to the independent expert opinion and factual record regarding the two incidents and to an evaluation of China’s conduct in light of the applicable regulations.

(Paragraph 1109) The Tribunal finds that China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence, to be in breach of Article 94 of the Convention.

VIII. AGGRAVATION OR EXTENSION OF THE DISPUTE BETWEEN THE PARTIES (SUBMISSION NO. 14)

Issue: Since the commencement of this arbitration in January 2013, China has unlawfully aggravated and extended the dispute by, among other things: (a) interfering with the Philippines’ rights of navigation in the waters at, and adjacent to, Second Thomas Shoal; (b) preventing the rotation and resupply of Philippine personnel stationed at Second Thomas Shoal; (c) endangering the health and well-being of Philippine personnel stationed at Second Thomas Shoal; and (d) conducting dredging, artificial island-building and construction activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef; and

Held: YES, as to (d). NO, as to the rest.

Ratio: (Paragraph 1161) The Tribunal finds that the essential facts at Second Thomas Shoal concern the deployment of a detachment of the Philippines’ armed forces that is engaged in a stand-off with a combination of ships from China’s Navy and from China’s Coast Guard and other government agencies. In connection with this stand-off, Chinese Government vessels have attempted to prevent the resupply and rotation of the Philippine troops on at least two occasions. Although, as far as the Tribunal is aware, these vessels were not military vessels, China’s military vessels have been reported to have been in the vicinity. In the Tribunal’s view, this represents a quintessentially military situation, involving the military forces of one side and a combination of military and paramilitary forces on the other, arrayed in opposition to one another. As these facts fall well within the exception, the Tribunal does not consider it necessary to explore the outer bounds of what would or would not constitute military activities for the purposes of Article 298(1)(b).

(Paragraph 1162) Accordingly, the Tribunal finds that it lacks jurisdiction to consider the Philippines’ Submissions No. 14(a) to (c).

(Paragraph 1164) For the reasons already set out, the Tribunal will not find activities to be military in nature when China itself has consistently resisted such classification and affirmed the opposite at the highest level. Accordingly, the Tribunal accepts China’s repeatedly affirmed position that civilian use comprises the primary (if not the only) motivation underlying its works on the aforementioned features. As civilian activity, the Tribunal notes that China’s conduct falls outside the scope of Article 298(1)(b) in any event. Accordingly, for the purposes of its jurisdictional analysis, the Tribunal need not engage with the question of whether the Philippines’ Submission No 14(d) constitutes a distinct dispute from those the Philippines alleges to have been aggravated or extended.

(Paragraph 1165) The Tribunal concludes that it has jurisdiction with respect to the matters raised in the Philippines’ Submission No. 14(d). The Tribunal now turns to the activities underpinning this portion of the Philippines’ claim.

(Paragraph 1169) In the Tribunal’s view, the proper understanding of this extensive jurisprudence on provisional measures is that there exists a duty on parties engaged in a dispute settlement procedure to refrain from aggravating or extending the dispute or disputes at issue during the pendency of the settlement process. This duty exists independently of any order from a court or tribunal to refrain from aggravating or extending the dispute and stems from the purpose of dispute settlement and the status of the States in question as parties in such a proceeding. Indeed, when a court or tribunal issues provisional measures directing a party to refrain from actions that would aggravate or extend the dispute, it is not imposing a new obligation on the parties, but rather recalling to the parties an obligation that already exists by virtue of their involvement in the proceedings.

(Paragraph 1172) Within the Convention, the same principles find expression in Article 279, which provides that:

States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter.

In carrying out the dispute settlement procedures of the Convention, the Parties are also under an obligation, pursuant to Article 300, to “fulfil in good faith the obligations assumed under this Convention and . . . exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right.” Finally, the Tribunal considers that the final and binding nature of the Award has an impact on the permissible conduct of the parties in the course of proceedings. Article 296 of the Convention provides that “[a]ny 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”; Article 11 of Annex VII to the Convention provides that “[t]he 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.” The Tribunal concludes that actions by either Party to aggravate or extend the dispute would be incompatible with the recognition and performance in good faith of these obligations.

(Paragraph 1177) The Tribunal considers that China’s intensified construction of artificial islands on seven features in the Spratly Islands during the course of these proceedings has unequivocally aggravated the disputes between the Parties identified above. First, China has effectively created a fait accompli at Mischief Reef by constructing a large artificial island on a low-tide elevation located within the Philippines’ exclusive economic zone and continental shelf, an area in which only the Philippines has sovereign rights with respect to living and non-living resources and where only the Philippines may construct or authorise artificial islands. In practical terms, the implementation of the Tribunal’s decision will be significantly more difficult for the Parties, and Mischief Reef cannot be returned to its original state, before China’s construction work was begun.

(Paragraph 1178) Second, China has aggravated the Parties’ dispute with respect to the protection and preservation of the marine environment by causing irreparable harm to the coral reef habitat at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef, and Mischief Reef. The Tribunal has already found that China has seriously violated its obligation to preserve and protect the marine environment in the South China Sea (see paragraphs 950 to 993). Whatever other States have done within the South China Sea, it pales in comparison to China’s recent construction. In practical terms, neither this decision nor any action that either Party may take in response can undo the permanent damage that has been done to the coral reef habitats of the South China Sea. In this respect, the Tribunal is conscious that the marine environment at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef did not form part of the Philippines’ claims in these proceedings prior to the close of the November 2015 hearing. In the Tribunal’s view, China’s actions have aggravated the dispute between the Parties with respect to the marine environment at Mischief Reef and extended that dispute to encompass additional features that became the sites of large-scale construction work while this arbitration was ongoing.

(Paragraph 1179) Finally, China has undermined the integrity of these proceedings and rendered the task before the Tribunal more difficult. At the same time that the Tribunal was called upon to determine the status of features in the Spratly Islands and the entitlements that such features were capable of generating, China has permanently destroyed evidence of the natural status of those same features (see paragraphs 305 to 306, 321, 511, 541, and 578). The small rocks and sand cays that determine whether a feature constitutes a low-tide elevation or a high-tide feature capable of generating an entitlement to a territorial sea are now literally buried under millions of tons of sand and concrete. Despite this, the Tribunal has reached a decision on the status of features in the South China Sea using the best evidence available to it and drawing heavily on historical sources. The Tribunal is satisfied that its decisions regarding the status of features are well founded in fact, but records that they were rendered significantly more difficult by China’s works at the features in question.

(Paragraph 1811) Based on the considerations outlined above, the Tribunal finds that China has in the course of these proceedings aggravated and extended the disputes between the Parties through its dredging, artificial island-building, and construction activities. In particular, while these proceedings were ongoing:

(a) China has aggravated the Parties’ dispute concerning their respective rights and entitlements in the area of Mischief Reef by building a large artificial island on a low-tide elevation located in the exclusive economic zone of the Philippines.

(b) China has aggravated the Parties’ dispute concerning the protection and preservation of the marine environment at Mischief Reef by inflicting permanent, irreparable harm to the coral reef habitat of that feature.

(c) China has extended the Parties’ dispute concerning the protection and preservation of the marine environment by commencing large-scale island-building and construction works at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

(d) China has aggravated the Parties’ dispute concerning the status of maritime features in the Spratly Islands and their capacity to generate entitlements to maritime zones by permanently destroying evidence of the natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef.

[Historical Documents] Copyright Registrations from 1986 (and potential Philippine lost media?)

EDIT (23 April 2020): Made a Lost Media Wiki forum post quoting this post almost verbatim, in case anyone wants to mount a search effort. Link at https://forums.lostmediawiki.com/thread/4542/songs-jerry-dadap-filipino-composer

Note: Every once in a while, I take breaks from bar review to look at historical documents available in the library where I review. Hundreds of Official Gazettes and legislative deliberations lay untouched and unopened, waiting for a historian to open them. I am sharing here in my blog whatever I find interesting, to pique the curiosity of others who may want to look further.


I wonder who Jerry I. Dadap, Jr. is/was and why he has many unpublished songs. All these songs could be lost media, which I earlier talked about. Not sure if Dadap is the same person as Michael Dadap. They could be since the Tumblr page I found on “Jerry Dadap” has the same information as “Michael Dadap” on WIkipedia. (Please forgive me, I just did a cursory search).

Also note the interesting movie titles by Viva Home Entertainment.

It appears all the registrations were made on February 1986, before the regime change.

Source is the Official Gazette, 14 April 1986 issue.

 

[Historical Documents] Proklamasyon Blg. 5 (1986)

Note: Every once in a while, I take breaks from bar review to look at historical documents available in the library where I review. Hundreds of Official Gazettes and legislative deliberations lay untouched and unopened, waiting for a historian to open them. I am sharing here in my blog whatever I find interesting, to pique the curiosity of others who may want to look further.


Nasa ibaba ang isang madalang na Proklamasyon. “Madalang” ito dahil hindi ito nasa wikang Ingles. Nilagdaan ito ng Pangulong Corazon Aquino bilang pagtakda sa 2 Abril bilang Araw ni Balagtas.

Ang larawang ito ay mula sa Official Gazette, isyu ng 7 Abril 1986.

[Historical Documents] Letter of Instruction No. 1, 1972

Note: Every once in a while, I take breaks from bar review to look at historical documents available in the library where I review. Hundreds of Official Gazettes and legislative deliberations lay untouched and unopened, waiting for a historian to open them. I am sharing here in my blog whatever I find interesting, to pique the curiosity of others who may want to look further.


This was the letter of instruction by President Ferdinand E. Marcos dated 22 September 1972 ordering the takeover of media after the declaration of martial law.

Image was taken from the Official Gazette, 2 October 1972.

[Historical Documents] Seal of the Batasang Pambansa

Note: Every once in a while, I take breaks from bar review to look at historical documents available in the library where I review. Hundreds of Official Gazettes and legislative deliberations lay untouched and unopened, waiting for a historian to open them. I am sharing here in my blog whatever I find interesting, to pique the curiosity of others who may want to look further.


I initially took these photos to upload to the English Wikipedia article on the Batasang Pambansa, but had no free time to crop and upload it there. I’ll just upload the raw images, unedited, here, and let someone else do the work. Of course, my prior permission and proper crediting are required. “CTTO” (credits to the owner) is not enough.

The Batasang Pambansa was the legislature under the 1973 Marcos-era Constitution.

Images were taken from the History of Bills and Resolutions, Fourth Regular Session, First Batasan by the Batasang Pambansa.

Batasang Pambansa

 

 

 

Book V, Rule VIII and IX of the Omnibus Rules Implementing the Labor Code

Department Order (D.O.) No. 40-03, as amended by D.O. 40-F-03 and D.O. 40-I-15

NOTE: 1) Rule VII (Voluntary Recognition) was replaced by Rule VII (REQUEST FOR SOLE AND EXCLUSIVE BARGAINING AGENT (SEBA) CERTIFICATION) by D.O. 40-I-15.

2) Inconsistency between Rule VIII, Section 14 (f), Rule IX, Section 3, and Rule IX, Section 6 regarding the employment period for members of the bargaining unit.

RULE VIII

CERTIFICATION ELECTION

Section 1. Who May File. – Any legitimate labor organization, including a national union or federation that has issued a charter certificate to its local/chapter or the local/chapter itself, may file a petition for certification election.

A national union or federation filing a petition in behalf of its local/chapter shall not be required to disclose the names of the local/chapter’s officers and members, but shall attach to the petition the charter certificate it issued to its local/chapter.

When requested to bargain collectively in a bargaining unit where no registered collective bargaining agreement exists, an employer may file a petition for certification election with the Regional Office.

In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election. The employer’s participation in such proceedings shall be limited to: (1) being notified or informed of petitions of such nature: and (2) submitting the list of employees during the pre-election conference should the Mediator-Arbiter act favorably on the petition. However, manifestation of facts that would aid the mediator-arbiter in expeditiously resolving the petition such as existence of a contract-bar, one year bar or deadlock bar may be considered. The contract-bar rule shall apply in any of the following: (1) when there exists an unexpired registered CBA; or (2) when there is no challenge on the representation status of the incumbent union during the freedom period. (as amended by D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 2. Where to file. – A petition for certification election shall be filed with the Regional Office which issued the petitioning union’s certificate of registration or certificate of creation of chartered local.

At the option of the petitioner, a petition for certification election and its supporting documents may also be filed online.

The petition shall be heard and resolved by the Mediator-Arbiter.

Where two (2) or more petitions involving the same bargaining unit are filed in one (1) Regional Office, the same shall be automatically consolidated with the Mediator-Arbiter who first acquired jurisdiction. Where the petitions are filed in different Regional Offices, the Regional Office in which the petition was first filed shall exclude all others; in which case, the latter shall indorse the petition to the former for consolidation. (as amended by D.O. 40-I-15, 7 September 2015)

Section 3. When to file. – A petition for certification election may be filed anytime, except:

(a) when a fact of voluntary recognition has been entered or a valid certification, consent or run-off election has been conducted within the bargaining unit within one (1) year prior to the filing of the petition for certification election. Where an appeal has been filed from the order of the Med-Arbiter certifying the results of the election, the running or the one year period shall be suspended until the decision on the appeal has become final and executory;

(b) when the duly certified union has commenced and sustained negotiations in good faith with the employer in accordance with Article 250 [renumbered 261] of the Labor Code within the one year period referred to in the immediately preceding paragraph;

(c) when a bargaining deadlock to which an incumbent or certified bargaining agent is a party had been submitted to conciliation or arbitration or had become the subject of a valid notice of strike or lockout;

(d) when a collective bargaining agreement between the employer and a duly recognized or certified bargaining agent has been registered in accordance with Article 231 [renumbered 237] of the Labor Code. Where such collective bargaining agreement is registered, the petition may be filed only within sixty (60) days prior to its expiry.

Section 4. Form and contents of petition. – The petition shall be in writing, verified under oath by the president of petitioning labor organization. Where a federation or national union files a petition in behalf of its local or affiliate, the petition shall be verified under oath by the president or duly authorized representative of the federation or national union. In case the employer filed the petition, the owner, president or any corporate officer, who is authorized by the board of directors shall verify the petition. The petition shall contain the following:

(a) the name of petitioner, its address, and affiliation if appropriate, the date and number of its certificate of registration. If the petition is filed by a federation or national union, the national president or his/her duly authorized representative shall certify under oath as to the existence of its local/chapter in the establishment and attaching thereto the charter certificate or a certified true copy thereof. If the petition is filed by a local/chapter it shall attach its charter certificate or a certified true copy thereof;

(b) the name, address and nature of employer’s business;

(c) the description of the bargaining unit;

(d) the approximate number of employees in the bargaining unit;

(e) the names and addresses of other legitimate labor unions in the bargaining unit:

(f) a statement indicating any of the following circumstances:

1) that the bargaining unit is unorganized or that there is no registered collective bargaining agreement covering the employees in the bargaining unit;

2) if there exists a duly registered collective bargaining agreement, that the petition is filed within the sixty-day freedom period of such agreement; or

3) if another union had been previously recognized voluntarily or certified in a valid certification, consent or run-off election, that the petition is filed outside the one-year period from date of recording of such voluntary recognition or conduct of certification or run-off election and no appeal is pending thereon.

(g) in an organized establishment, the signature of at least twenty-five percent (25%) of all employees in the appropriate bargaining unit shall be attached to the petition at the time of its filing; and

(h) other relevant facts. (as amended by D.O. 40-F-03, 30 October 2008)

Section 5. Raffle or the case. – The Regional Director or his/her duly authorized representative upon receipt of the petition shall immediately assign it by raffle to a Mediator-Arbiter. The raffle shall be done in the presence of the petitioner if the latter so desires. (as amended by D.O. 40-F-03, 30 October 2008)

Section 6. Notice of preliminary conference. – The petition shall immediately be transmitted to the assigned Mediator-Arbiter who shall immediately prepare and serve a notice of preliminary conference to be held within ten (10) working days from the Mediator-Arbiter’s receipt of the petition.

The service of the petition to the employer and of the notice of preliminary conference to the petitioner and the incumbent bargaining agent (if any) shall be made within three (3) working days from the Mediator-Arbiter’s receipt of the petition. The service may be made by personal service, by registered mail or by courier service.

A copy of the petition and of the notice of preliminary conference shall be posted within the same three (3) day period in at least two conspicuous places in the establishment. In multiple-location workplaces, the posting shall be made in at least two conspicuous places in every location. (as amended by D.O. 40-F-03, 30 October 2008)

Section 7. Posting. – The regional director or his/her authorized DOLE personnel, and/or the petitioner shall be responsible for the posting of the notice of petition for certification election. (inserted by D.O. 40-I-15, 7 September 2015)

Section 8. Forced Intervenor. – The incumbent bargaining agent shall automatically be one of the choices in the certification election as forced intervenor. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 9. Motion for Intervention. – When a petition for certification election was filed in an organized establishment, any legitimate labor union other than the incumbent bargaining agent operating within the bargaining unit may file a motion for intervention with the Med-Arbiter during the freedom period of the collective bargaining agreement. The form and contents of the motion shall be the same as that of a petition for certification election.

In an unorganized establishment, the motion shall be filed at any time prior to the decision of the Med-Arbiter. The form and contents of the motion shall likewise be the same as that of a petition for certification election. The motion for intervention shall be resolved in the same decision issued in the petition for certification election. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 10. Preliminary Conference; Hearing. – The Med-Arbiter shall conduct a preliminary conference and hearing within ten (10) days from receipt of the petition to determine the following:

(a) the bargaining unit to be represented;

(b) contending labor unions;

(c) possibility of a consent election:

(d) existence of any of the bars to certification election under Section 3 of this Rule: and

(e) such other matters as may be relevant for the final disposition of the case. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 11. Consent Election; Agreement. – The contending unions may agree to the holding of an election, in which case it shall be called a consent election. The Mediator-Arbiter shall forthwith call for the consent election, reflecting the parties’ agreement and the call in the minutes of the conference.

The Mediator-Arbiter shall, immediately forward the records of the petition to the Regional Director or his/her authorized representative for the determination of the Election Officer who shall be chosen by raffle in the presence of representatives of the contending unions if they so desire.

The first pre-election conference shall be scheduled within ten (10) days from the date of the consent election agreement. Subsequent conferences may be called to expedite and facilitate the holding of the consent election.

To afford an individual employee-voter an informed choice where a local/chapter is the petitioning union, the local/chapter shall secure its certificate of creation at least five working days before the date of the consent election. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 12. Number of Hearings; Pleadings. – If the contending unions fail to agree to a consent election during the preliminary conference, the Med-Arbiter may conduct as many hearings as he/she may deem necessary, but in no case shall the conduct thereof exceed fifteen (15) days from the date of the scheduled preliminary conference/hearing, after which time the petition shall be considered submitted for decision. The Med-Arbiter shall have control of the proceedings. Postponements or continuances shall be discouraged.

Within the same 15-day period within which the petition is heard, the contending labor unions may file such pleadings as they may deem necessary for the immediate resolution of the petition. Extensions of time shall not be entertained. All motions shall be resolved by the Med-Arbiter in the same order or decision granting or denying the petition. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 13. Failure to appear despite notice. – The failure of any party to appear in the hearing(s) when notified or to file its pleadings shall be deemed a waiver of its right to be heard. The Med-Arbiter, however, when agreed upon by the parties for meritorious reasons may allow the cancellation of scheduled hearing(s). The cancellation of any scheduled hearing(s) shall not be used as a basis for extending the 15-day period within which to terminate the same. (renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 14. Order/Decision on the petition. – Within ten (10) days from the date of the last hearing, the Mediator-Arbiter shall formally issue a ruling granting or denying the petition, except in organized establishments where the grant of the petition can only be made after the lapse of the freedom period.

The ruling for the conduct of a certification election shall state the following:

(a) the name of the employer or establishment;

(b) a description of the bargaining unit;

(c) a statement that none of the grounds for dismissal enumerated in the succeeding paragraph exists;

(d) the names of the contending labor unions which shall appear in the following order: the petitioner unions in the order of the date of filing of their respective petitions; the forced intervenor; and “no union”:

(e) to afford an individual employee-voter an informed choice where a local/chapter is one of the contending unions, a directive to an unregistered local/chapter or a federation/national union representing all unregistered local/chapter to personally submit to the Election Officer its certificate of creation at least five working days before the actual conduct of the certification election.

Non-submission of this requirement as certified by the Election Officer shall disqualify the local/chapter from participating in the certification election: and

(f) a directive upon the employer and the contending union(s) to submit within ten (10) days from receipt of the order, the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit for the last three (3) months prior to the issuance of the order. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 15. Denial of the petition; Grounds. – The Mediator-Arbiter may dismiss the petition on any of the following grounds:

(a) the petitioning union or national union/federation is not listed in the Department’s registry of legitimate labor unions or that its registration certificate has been cancelled with finality in accordance with Rule XIV of these Rules:

(b) failure of a local/chapter or national union/federation to submit a duly issued charter certificate upon filing of the petition for certification election;

(c) filing the petition before or after the freedom period or a duly registered collective bargaining agreement; provided that the sixty-day period based on the original collective bargaining agreement shall not be affected by any amendment, extension or renewal of the collective bargaining agreement;

(d) filing of a petition within one (1) year from the date of recording of the voluntary recognition, or within the same period from a valid certification, consent or run-off election where no appeal on the results of the certification, consent or run-off election is pending;

(e) where a duly certified union has commenced and sustained negotiations with the employer in accordance with Article 250 [renumbered 261] of the Labor Code within the one-year period referred to in Section 14.d of this Rule, or where there exists a bargaining deadlock which has been submitted to conciliation or arbitration or has become the subject of a valid notice of strike or lockout where an incumbent or certified bargaining agent is a party;

(f) in an organized establishment, the failure to submit the twenty-five percent (25%) signature requirement to support the filing of the petition for certification election;

(g) non-appearance of the petitioner for two (2) consecutive scheduled conferences before the Mediator-Arbiter despite due notice; and

(h) absence of employer-employee relationship between all the members of the petitioning union and the establishment where the proposed bargaining unit is sought to be represented. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 16. Prohibited ground for the denial/suspension of the petition. – The inclusion as union members of employees outside the bargaining unit shall not be a ground for the cancellation of the registration of the union. Said employees are automatically deemed removed from the list of membership of said unions. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered pursuant to D.O. 40-I-15, 7 September 2015)

Section 17. Ancillary Issues. – All issues pertaining to the existence of employer-employee relationship, eligibility or mixture in union membership raised before the Mediator-Arbiter during the hearing(s) and in the pleadings shall be resolved in the same order or decision granting or denying the petition for certification election.

All issues pertaining to the validity of the petitioning union’s certificate of registration or its legal personality as a labor organization, validity of registration and execution of collective bargaining agreements shall be heard and resolved by the Regional Director in an independent petition for cancellation of its registration and not by the Mediator-Arbiter in the petition for certification election, unless the petitioning union is not listed in the Department’s roster of legitimate labor organizations, or an existing collective bargaining agreement is not registered with the Department. (renumbered and amended by D.O. 40-F-03. 30 October 2008)

Section 18. Release of Order/Decision within ten (10) days from the last hearing. – The Med-Arbiter shall release his/her order or decision granting or denying the petition personally to the parties within ten (10) days from the last hearing, copy furnished the employer. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015 and amended by D.O. 40-I-15, 7 September 2015)

Section 19. Appeal. – The order granting the conduct of a certification election in an unorganized establishment shall not be subject to appeal. Any issue arising therefrom may be raised by means of protest on the conduct and results of the certification election.

The order granting the conduct of a certification election in an organized establishment and the decision dismissing or denying the petition, whether in an organized or unorganized establishment, may be appealed to the Office of the Secretary within ten (10) days from receipt thereof.

The appeal shall be verified under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 20. Where to file appeal. – The memorandum of appeal shall be filed in the Regional Office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within twenty-four (24) hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 21. Finality of Order/Decision. – Where no appeal is filed within the ten-day period, the Med-Arbiter shall enter the finality of the order/decision in the records of the case and cause the transmittal of the records of the petition to the Regional Director. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 22. Period to Reply. – A reply to the appeal may be filed by any party to the petition within ten (10) days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 23. Decision of the Secretary. – The Secretary shall have fifteen (15) days from receipt of the entire records of the petition within which to decide the appeal. The filing of the memorandum of appeal from the order or decision of the Med-Arbiter stays the holding of any certification election.

The decision of the Secretary shall become final and executory after ten (10) days from receipt thereof by the parties. No motion for reconsideration of the decision shall be entertained. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 24. Transmittal of records to the Regional Office. – Within forty-eight (48) hours from notice of receipt of decision by the parties and finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for implementation. Implementation of the decision shall not be stayed unless restrained by the appropriate court. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 25. Effects of consent election. – Where a petition for certification election had been filed, and upon the intercession of the Med-Arbiter, the parties agree to hold a consent election, the results thereof shall constitute a bar to the holding of a certification election for one (1) year from the holding of such consent election. Where an appeal has been filed from the results of the consent election, the running of the one-year period shall be suspended until the decision on appeal has become final and executory.

Where no petition for certification election was filed but the parties themselves agreed to hold a consent election with the intercession of the Regional Office, the results thereof shall constitute a bar to another petition for certification election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 26. Effects of early agreements. – The representation case shall not be adversely affected by a collective bargaining agreement registered before or during the last sixty (60) days of a subsisting agreement or during the pendency of the representation case. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 27. Non-availability of Med-Arbiter. – Where there is no Med-Arbiter available in the Regional Office by reason of vacancy, prolonged absence, or excessive workload as determined by the Regional Director, he/she shall transmit the entire records of the case to the Bureau, which shall within forty-eight (48) hours from receipt assign the case to any Med-Arbiter from any of the Regional Offices or from the Bureau. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

RULE IX

CONDUCT OF CERTIFICATION ELECTION

SECTION 1. Employer as By-Stander. – Subject to the provisions of paragraph 3, Section 1 of Rule VIII, the principle of the employer as by-stander shall be strictly observed throughout the conduct of certification election. The employer shall not harass, intimidate, threat or coerce employees before, during and after elections. (inserted by D.O. 40-I-15, 7 September 2015)

Section 2. Raffle of the case. – Within twenty-four (24) hours from receipt of the notice of entry of final judgment granting the conduct of a certification election, the Regional Director shall cause the raffle of the case to an Election Officer who shall have control of the pre-election conference and election proceedings. (renumbered by D.O. 40-I-15, 7 September 2015)

Section 3. Pre-election conference. – Within twenty-four (24) hours from receipt of the assignment for the conduct of a certification election, the Election Officer shall cause the issuance or notice of pre-election conference upon the contending unions, which shall be scheduled within ten (10) calendar days from receipt of the assignment. The employer shall be required to submit the certified list of employees in the bargaining unit, or where necessary, the payrolls covering the members of the bargaining unit at the time of the filing of the petition. (as amended by D.O. 40-F-03. 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)

Section 4. Waiver of right to be heard. – Failure of any party to appear during the pre-election conference despite notice shall be considered as a waiver of its right to be present and to question or object to any of the agreements reached in the pre-election conference. However, this shall not deprive the non-appearing party of the right to be furnished notices of and to attend subsequent pre-election conferences. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)

Section 5. Minutes of pre-election conference. – The Election Officer shall keep the minutes of matters raised and agreed upon during the pre-election conference. The parties shall acknowledge the completeness and correctness of the entries in the minutes by affixing their signatures thereon. Where any of the parties refuse to sign the minutes, the Election Officer shall note such fact in the minutes, including the reason for refusal to sign the same. In all cases, the parties shall be furnished a copy of the minutes.

The pre-election conference shall be completed within thirty (30) days from the date of the first hearing. (renumbered by D.O. 40-I-15, 7 September 2015)

Section 6. Qualification of voters; inclusion-exclusion. – All employees who are members of the appropriate bargaining unit three (3) months prior to the filing of the petition/request shall be eligible to vote. An employee who has been dismissed from work but has contested the legality of the dismissal in a forum of appropriate jurisdiction at the time of the issuance of the order for the conduct of a certification election shall be considered a qualified voter, unless his/her dismissal was declared valid in a final judgment at the time of the conduct of the certification election.

In case of disagreement over the voters’ list or over the eligibility of voters, all contested voters shall be allowed to vote. But their votes shall be segregated and sealed in individual envelopes in accordance with Sections 11 and 12 of this Rule. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)

Section 7. Posting of Notices. – The Election Officer and/or authorized DOLE personnel shall cause the posting of notice of election at least ten (10) days before the actual date of the election in two (2) most conspicuous places in the company premises. The notice shall contain:

(a) the date and time of the election;

(b) names of all contending unions;

(c) the description of the bargaining unit and the list of eligible and challenged voters.

The posting of the list of employees comprising the bargaining unit shall be done by the DOLE personnel.

The posting of the notice or election, the information required to be included therein and the duration of posting cannot be waived by the contending unions or the employer. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)

Section 8. Secrecy and sanctity of the ballot. – To ensure secrecy of the ballot, the Election Officer, together with the authorized representatives of the contending unions and the employer, shall before the start of the actual voting, inspect the polling place, the ballot boxes and the polling booths.

No device that could record or identify the voter or otherwise undermine the secrecy and sanctity of the ballot shall be allowed within the premises, except those devices brought in by the election officer. Any other device found within the premises shall be confiscated by the election officer and returned to its owner after the conduct of the certification election. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)

Section 9. Preparation of ballots. – The Election Officer shall prepare the ballots in English and Filipino or the local dialect. The number of ballots should correspond to the number of voters in the bargaining unit plus a reasonable number or extra ballots for contingencies. All ballots shall be signed at the back by the Election Officer and an authorized representative each of the contending unions. A party who refuse or fails to sign the ballots waives its right to do so and the Election Officer shall enter the fact of refusal and the reason therefor in the records of the case. (as amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)

Section 10. Casting of votes. – The voter must put a cross (x) or check (/) mark in the square opposite the name of the chosen union or “No Union” if she does not want to be represented by any union.

If the voter inadvertently spoils a ballot, he/she shall return it to the Election Officer who shall destroy it and give him/her another ballot.

Any member of the bargaining unit who is untentionally [(yes, the spelling is wrong)] omitted in the master list of voters may be allowed to vote if both parties agree, otherwise, he/she will be allowed to vote but the ballot is segregated. (as amended and renumbered by D.O. 40-I-15, 7 September 2015)

Section 11. Procedure in the challenge of votes. – The ballot of the voter who has been properly challenged during the pre-election conferences, shall be placed in an envelope which shall be sealed by the Election Officer in the presence of the voter and the representatives of the contending unions. The Election Officer shall indicate on the envelope the voter’s name. the union challenging the voter, and the ground for the challenge. The sealed envelope shall then be signed by the Election Officer and the representatives of the contending unions. The Election Officer shall note all challenges in the minutes of the election proceedings and shall have custody of all envelopes containing the challenged votes. The envelopes shall be opened and the question of eligibility shall be passed upon by the Mediator-Arbiter only if the number of segregated votes will materially alter the results of the election. (renumbered and amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)

Section 12. On-the-spot questions. – The Election Officer shall rule on any question relating to and raised during the conduct of the election. In no case, however, shall the Election Officer rule on any of the grounds for challenge specified in the immediately preceding section. (renumbered by D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015).

Section 13. Protest; When perfected. – Any party-in-interest may file a protest based on the conduct or mechanics of the election. Such protests shall be recorded in the minutes of the election proceedings. Protests not so raised are deemed waived.

General reservation to file a protest shall be prohibited. The protesting party shall specify the grounds for protest.

The protesting party must formalize its protest with the Med-Arbiter, with specific grounds, arguments and evidence, within five (5) days after the close of the election proceedings. If not recorded in the minutes and formalized within the prescribed period, the protest shall be deemed dropped. (renumbered by D.O. 40-F-03, 30 October 2008 and amended and renumbered by D.O. 40-I-15, 7 September 2015)

Section 14. Canvassing of votes. – The votes shall be counted and tabulated by the Election Officer in the presence of the representatives of the contending unions. Upon completion of the canvass, the Election Officer shall give each representative a copy of the minutes of the election proceedings and results of the election. The ballots and the tally sheets shall be sealed in an envelope and signed by the Election Officer and the representatives of the contending unions and transmitted to the Med-Arbiter, together with the minutes and results of the election, within twenty-four (24) hours from the completion of the canvass.

Where the election is conducted in more than one region, consolidation of results shall be made within fifteen (15) days from the conduct thereof. (renumbered by D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 15. Conduct of election and canvass of votes. – The election precincts shall open and close on the date and time agreed upon during the pre-election conference. The opening and canvass of votes shall proceed immediately after the precincts have closed. Failure of the representative/s of the contending unions to appear during the election proceedings and canvass of votes shall be considered a waiver of the right to be present and to question the conduct thereof. (renumbered and amended by D.O. 40-F-03, 30 October 2008 and renumbered by D.O. 40-I-15, 7 September 2015)

Section 16. Certification of Collective Bargaining Agent. – The union which obtained a majority of the valid votes cast shall be certified as the sole and exclusive bargaining agent of all the employees in the appropriate bargaining unit within five (5) days from the day of the election, provided no protest is recorded in the minutes of the election.

When the winning choice is a local chapter without a certificate of creation of chartered local, such local chapter shall submit its DOLE-issued certificate of creation within five (5) days from the conclusion of election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and amended and renumbered by D.O. 40-I-15, 7 September 2015)

Section 17. Failure or election. – Where the number of votes cast in a certification or consent election is less than the majority of the number of eligible voters and there are no material challenged votes, the Election Officer shall declare a failure of election in the minutes of the election proceedings. (renumbered pursuant to D.O 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 18. Re-Run Election. – When a certification, consent or run-off election results to a tie between the two (2) choices, the election officer shall immediately notify the parties of a re-run election. The election officer shall cause the posting of the notice of re-run election within five (5) days from the certification, consent or run-off election. The re-run election shall be conducted within ten (10) days after the posting of notice.

The choice receiving the highest votes cast during the re-run election shall be declared the winner and shall be certified accordingly. (inserted by D.O. 40-I-15, 7 September 2015)

Section 19. Effect of failure of election. – A failure of election shall not bar the filing of a motion for the immediate holding of another certification or consent election within six (6) months from date of declaration of failure of election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 20. Action on the motion. – Within twenty-four (24) hours from receipt of the motion, the Election Officer shall immediately schedule the conduct of another certification or consent election within fifteen (15) days from receipt of the motion and cause the posting of the notice or certification election at least ten (10) days prior to the scheduled date of election in two (2) most conspicuous places in the establishment. The same guidelines and list of voters shall be used in the election. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 21. Proclamation and certification of the result of the election. – Within twenty-four (24) hours from final canvass of votes, there being a valid election, the Election Officer shall transmit the records of the case to the Med-Arbiter who shall, within the same period from receipt of the minutes and results of election, issue an order proclaiming the results of the election and certifying the union which obtained a majority of the valid votes cast as the sole and exclusive bargaining agent in the subject bargaining unit, under any of the following conditions:

(a) no protest was filed or, even if one was filed, the same was not perfected within the five-day period for perfection of the protest;

(b) no challenge or eligibility issue was raised or, even if one was raised, the resolution of the same will not materially change the results of the elections.

The winning union shall have the rights, privileges and obligations of a duly certified collective bargaining agent from the time the certification is issued.

Where majority of the valid votes cast results in “No Union” obtaining the majority, the Med-Arbiter shall declare such fact in the order. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 22. Appeal; finality of decision. – The decisions of the Med-Arbiter may be appealed to the Secretary within ten (10) days from receipt by the parties of a copy thereof.

The appeal shall be under oath and shall consist of a memorandum of appeal, specifically stating the grounds relied upon by the appellant with the supporting arguments and evidence.

Where no appeal is filed within the ten-day period, the order/decision shall become final and executory and the Med-Arbiter shall enter this fact into the records of the case. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 23. Where to file appeal. – The memorandum of appeal shall be filed in the Regional Office where the petition originated, copy furnished the contending unions and the employer, as the case may be. Within twenty-four (24) hours from receipt of the appeal, the Regional Director shall cause the transmittal thereof together with the entire records of the case to the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 24. Period to Reply. – A reply to the appeal may be filed by any party to the petition within ten (10) days from receipt of the memorandum of appeal. The reply shall be filed directly with the Office of the Secretary. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 25. Decision of the Secretary. – The Secretary shall have fifteen (15) days from receipt of the entire records of the petition within which to decide the appeal.

The decision of the Secretary shall become final and executory after ten (10) days from receipt thereof by the parties. No motion for reconsideration of the decision shall be entertained. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)

Section 26. Transmittal of records to the Regional Office. – Within forty-eight (48) hours from notice of receipt of decision by the parties and finality of the decision, the entire records of the case shall be remanded to the Regional Office of origin for implementation. Implementation of the decision shall be stayed unless restrained by the appropriate court. (renumbered pursuant to D.O. 40-F-03, 30 October 2008 and D.O. 40-I-15, 7 September 2015)