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)
Held: YES, 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:
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
Ratio: (Paragraph 386) Article 121 establishes a regime of islands as follows:
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.”
Held: YES, 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
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
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
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
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
Held: YES 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
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.