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发帖数: 3244 | 1 The Hague, 12 July 2016
The Tribunal Renders Its Award
A unanimous Award has been issued today by the Tribunal constituted under
Annex VII to the United Nations Convention on the Law of the Sea (the “
Convention”) in the arbitration instituted by the Republic of the
Philippines against the People’s Republic of China.
This arbitration concerned the role of historic rights and the source of
maritime entitlements in the South China Sea, the status of certain maritime
features and the maritime entitlements they are capable of generating, and
the lawfulness of certain actions by China that were alleged by the
Philippines to violate the Convention. In light of limitations on compulsory
dispute settlement under the Convention, the Tribunal has emphasized that
it does not rule on any question of sovereignty over land territory and does
not delimit any boundary between the Parties.
China has repeatedly stated that “it will neither accept nor participate in
the arbitration unilaterally initiated by the Philippines.” Annex VII,
however, provides that the “[a]bsence of a party or failure of a party to
defend its case shall not constitute a bar to the proceedings.” Annex VII
also provides that, in the event that a party does not participate in the
proceedings, a tribunal “must satisfy itself not only that it has
jurisdiction over the dispute but also that the claim is well founded in
fact and law.” Accordingly, throughout these proceedings, the Tribunal has
taken steps to test the accuracy of the Philippines’ claims, including by
requesting further written submissions from the Philippines, by questioning
the Philippines both prior to and during two hearings, by appointing
independent experts to report to the Tribunal on technical matters, and by
obtaining historical evidence concerning features in the South China Sea and
providing it to the Parties for comment.
China has also made clear—through the publication of a Position Paper in
December 2014 and in other official statements—that, in its view, the
Tribunal lacks jurisdiction in this matter. Article 288 of the Convention
provides that: “In the event of a dispute as to whether a court or tribunal
has jurisdiction, the matter shall be settled by decision of that court or
tribunal.” Accordingly, the Tribunal convened a hearing on jurisdiction and
admissibility in July 2015 and rendered an Award on Jurisdiction and
Admissibility on 29 October 2015, deciding some issues of jurisdiction and
deferring others for further consideration. The Tribunal then convened a
hearing on the merits from 24 to 30 November 2015.
The Award of today’s date addresses the issues of jurisdiction not decided
in the Award on Jurisdiction and
Admissibility and the merits of the Philippines’ claims over which the
Tribunal has jurisdiction. The Award is final and binding, as set out in
Article 296 of the Convention and Article 11 of Annex VII.
Historic Rights and the ‘Nine-Dash Line’: The Tribunal found that it has
jurisdiction to consider the Parties’ dispute concerning historic rights
and the source of maritime entitlements in the South China Sea. On the
merits, the Tribunal concluded that the Convention comprehensively allocates
rights to maritime areas and that protections for pre-existing rights to
resources were considered, but not adopted in the Convention. Accordingly,
the Tribunal concluded that, to the extent China had historic rights to
resources in the waters of the South China Sea, such rights were
extinguished to the extent they were incompatible with the exclusive
economic zones provided for in the Convention. The Tribunal also noted that,
although Chinese navigators and fishermen, as well as those of other States
, had historically made use of the islands in the South China Sea, there was
no evidence that China had historically exercised exclusive control over
the waters or their resources. The Tribunal concluded that there was no
legal basis for China to claim historic rights to resources within the sea
areas falling within the ‘nine-dash line’.
Status of Features: The Tribunal next considered entitlements to maritime
areas and the status of features. The Tribunal first undertook an evaluation
of whether certain reefs claimed by China are above water at high tide.
Features that are above water at high tide generate an entitlement to at
least a 12 nautical mile territorial sea, whereas features that are
submerged at high tide do not. The Tribunal noted that the reefs have been
heavily modified by land reclamation and construction, recalled that the
Convention classifies features on their natural condition, and relied on
historical materials in evaluating the features. The Tribunal then
considered whether any of the features claimed by China could generate
maritime zones beyond 12 nautical miles. Under the Convention, islands
generate an exclusive economic zone of 200 nautical miles and a continental
shelf, but “[r]ocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or continental shelf.”
The Tribunal concluded that this provision depends upon the objective
capacity of a feature, in its natural condition, to sustain either a stable
community of people or economic activity that is not dependent on outside
resources or purely extractive in nature. The Tribunal noted that the
current presence of official personnel on many of the features is dependent
on outside support and not reflective of the capacity of the features. The
Tribunal found historical evidence to be more relevant and noted that the
Spratly Islands were historically used by small groups of fishermen and that
several Japanese fishing and guano mining enterprises were attempted. The
Tribunal concluded that such transient use does not constitute inhabitation
by a stable community and that all of the historical economic activity had
been extractive. Accordingly, the Tribunal concluded that none of the
Spratly Islands is capable of generating extended maritime zones. The
Tribunal also held that the Spratly Islands cannot generate maritime zones
collectively as a unit. Having found that none of the features claimed by
China was capable of generating an exclusive economic zone, the Tribunal
found that it could—without delimiting a boundary—declare that certain sea
areas are within the exclusive economic zone of the Philippines, because
those areas are not overlapped by any possible entitlement of China.
Lawfulness of Chinese Actions: The Tribunal next considered the lawfulness
of Chinese actions in the South China Sea. Having found that certain areas
are within the exclusive economic zone of the Philippines, the Tribunal
found that China had violated the Philippines’ sovereign rights in its
exclusive economic zone by (a) interfering with Philippine fishing and
petroleum exploration, (b) constructing artificial islands and (c) failing
to prevent Chinese fishermen from fishing in the zone. The Tribunal also
held that fishermen from the Philippines (like those from China) had
traditional fishing rights at Scarborough Shoal and that China had
interfered with these rights in restricting access. The Tribunal further
held that Chinese law enforcement vessels had unlawfully created a serious
risk of collision when they physically obstructed Philippine vessels.
Harm to Marine Environment: The Tribunal considered the effect on the marine
environment of China’s recent large-scale land reclamation and
construction of artificial islands at seven features in the Spratly Islands
and found that China had caused severe harm to the coral reef environment
and violated its obligation to preserve and protect fragile ecosystems and
the habitat of depleted, threatened, or endangered species. The Tribunal
also found that Chinese authorities were aware that Chinese fishermen have
harvested endangered sea turtles, coral, and giant clams on a substantial
scale in the South China Sea (using methods that inflict severe damage on
the coral reef environment) and had not fulfilled their obligations to stop
such activities.
Aggravation of Dispute: Finally, the Tribunal considered whether China’s
actions since the commencement of the arbitration had aggravated the dispute
between the Parties. The Tribunal found that it lacked jurisdiction to
consider the implications of a stand-off between Philippine marines and
Chinese naval and law enforcement vessels at Second Thomas Shoal, holding
that this dispute involved military activities and was therefore excluded
from compulsory settlement. The Tribunal found, however, that China’s
recent large-scale land reclamation and construction of artificial islands
was incompatible with the obligations on a State during dispute resolution
proceedings, insofar as China has inflicted irreparable harm to the marine
environment, built a large artificial island in the Philippines’ exclusive
economic zone, and destroyed evidence of the natural condition of features
in the South China Sea that formed part of the Parties’ dispute.
An expanded summary of the Tribunal’s decisions is set out below.
The Tribunal was constituted on 21 June 2013 pursuant to the procedure set
out in Annex VII of the Convention to decide the dispute presented by the
Philippines. The Tribunal is composed of Judge Thomas A.
Mensah of Ghana, Judge Jean-Pierre Cot of France, Judge Stanislaw Pawlak of
Poland, Professor Alfred H.A. Soons of the Netherlands, and Judge Rüdiger
Wolfrum of Germany. Judge Thomas A. Mensah serves as President of the
Tribunal. The Permanent Court of Arbitration acts as the Registry in the
proceedings.
Further information about the case may be found at www.pcacases.com/web/view
/7, including the Award on Jurisdiction and Admissibility, the Rules of
Procedure, earlier Press Releases, hearing transcripts, and photographs.
Procedural Orders, submissions by the Philippines, and reports by the
Tribunal’s experts will be made available in due course, as will unofficial
Chinese translations of the Tribunal’s Awards.
Background to the Permanent Court of Arbitration
The Permanent Court of Arbitration (PCA) is an intergovernmental
organization established by the 1899 Hague Convention on the Pacific
Settlement of International Disputes. The PCA has 121 Member States.
Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA
facilitates arbitration, conciliation, fact-finding, and other dispute
resolution proceedings among various combinations of States, State entities,
intergovernmental organizations, and private parties. The PCA’s
International Bureau is currently administering 8 interstate disputes, 73
investor-State arbitrations, and 34 cases arising under contracts involving
a State or other public entity. The PCA has administered 12 cases initiated
by States under Annex VII to the United Nations Convention on the Law of the
Sea.
In July 2013, the Tribunal in the South China Sea Arbitration appointed the
PCA to serve as Registry for the proceedings. The Tribunal’s Rules of
Procedure provide that the PCA shall “maintain an archive of the arbitral
proceedings and provide appropriate registry services as directed by the
Arbitral Tribunal.” Such services include assisting with the identification
and appointment of experts; publishing information about the arbitration
and issuing press releases; organizing the hearings at the Peace Palace in
The Hague; and the financial management of the case, which involves holding
a deposit for expenses in the arbitration, such as to pay arbitrator fees,
experts, technical support, court reporters etc. The Registry also serves as
the channel of communications amongst the Parties and the Tribunal and
observer States.
Photograph: Hearing in session, July 2015, Peace Palace, The Hague.
Clockwise from top left: Registrar and PCA Senior Legal Counsel Judith
Levine; Judge Stanislaw Pawlak; Professor Alfred H. A. Soons; Judge Thomas A
. Mensah (Presiding Arbitrator); Judge Jean-Pierre Cot; Judge Rüdiger
Wolfrum; PCA Senior Legal Counsel Garth Schofield; former Secretary for
Foreign Affairs of the Philippines, Mr. Albert F. Del Rosario; former
Solicitor General Mr. Florin T. Hilbay, Counsel for the Philippines; Mr.
Paul S. Reichler; Professor Philippe Sands; Professor Bernard H. Oxman;
Professor Alan E. Boyle; Mr. Lawrence H. Martin.
SUMMARY OF THE TRIBUNAL’S DECISIONS ON ITS JURISDICTION
AND ON THE MERITS OF THE PHILIPPINES’ CLAIMS
1. Background to the Arbitration
The South China Sea Arbitration between the Philippines and China concerned
an application by the Philippines for rulings in respect of four matters
concerning the relationship between the Philippines and
China in the South China Sea. First, the Philippines sought a ruling on the
source of the Parties’ rights and obligations in the South China Sea and
the effect of the United Nations Convention on the Law of the Sea
(“Convention”) on China’s claims to historic rights within its so-called
‘nine-dash line’. Second, the Philippines sought a ruling on whether
certain maritime features claimed by both China and the Philippines are
properly characterized as islands, rocks, low-tide elevations or submerged
banks under the Convention. The status of these features under the
Convention determines the maritime zones they are capable of generating.
Third, the Philippines sought rulings on whether certain Chinese actions in
the South China Sea have violated the Convention, by interfering with the
exercise of the Philippines’ sovereign rights and freedoms under the
Convention or through construction and fishing activities that have harmed
the marine environment. Finally, the Philippines sought a ruling that
certain actions taken by China, in particular its large-scale land
reclamation and construction of artificial islands in the Spratly Islands
since this arbitration was commenced, have unlawfully aggravated and
extended the Parties’ dispute.
The Chinese Government has adhered to the position of neither accepting nor
participating in these arbitral proceedings. It has reiterated this position
in diplomatic notes, in the “Position Paper of the Government of the
People’s Republic of China on the Matter of Jurisdiction in the South China
Sea Arbitration Initiated by the Republic of the Philippines” dated 7
December 2014 (“China’s Position Paper”), in letters to members of the
Tribunal from the Chinese Ambassador to the Kingdom of the Netherlands, and
in many public statements. The Chinese Government has also made clear that
these statements and documents “shall by no means be interpreted as China’
s participation in the arbitral proceeding in any form.”
Two provisions of the Convention address the situation of a party that
objects to the jurisdiction of a tribunal and declines to participate in the
proceedings:
(a) Article 288 of the Convention provides that: “In the event of a dispute
as to whether a court or tribunal has jurisdiction, the matter shall be
settled by decision of that court or tribunal.” (b) Article 9 of Annex VII
to the Convention provides that:
If one of the parties to the dispute does not appear before the arbitral
tribunal or fails to defend its case, the other party may request the
tribunal to continue the proceedings and to make its award. Absence of a
party or failure of a party to defend its case shall not constitute a bar to
the proceedings. Before making its award, the arbitral tribunal must
satisfy itself not only that it has jurisdiction over the dispute but also
that the claim is well founded in fact and law.
Throughout these proceedings, the Tribunal has taken a number of steps to
fulfil its duty to satisfy itself as to whether it has jurisdiction and
whether the Philippines’ claims are “well founded in fact and law”. With
respect to jurisdiction, the Tribunal decided to treat China’s informal
communications as equivalent to an objection to jurisdiction, convened a
Hearing on Jurisdiction and Admissibility on 7 to 13 July 2015, questioned
the Philippines both before and during the hearing on matters of
jurisdiction, including potential issues not raised in China’s informal
communications, and issued an Award on Jurisdiction and Admissibility on 29
October 2015 (the “Award on Jurisdiction”), deciding some issues of
jurisdiction and deferring others for further consideration in conjunction
with the merits of the Philippines’ claims. With respect to the merits, the
Tribunal sought to test the accuracy of the Philippines’ claims by
requesting further written submissions from the Philippines, by convening a
hearing on the merits from 24 to 30 November 2015, by questioning the
Philippines both before and during the hearing with respect to its claims,
by appointing independent experts to report to the Tribunal on technical
matters, and by obtaining historical records and hydrographic survey data
for the South China Sea from the archives of the United Kingdom Hydrographic
Office, the National Library of France, and the French National Overseas
Archives and providing it to the Parties for comment, along with other
relevant materials in the public domain.
2. The Parties’ Positions
The Philippines made 15 Submissions in these proceedings, requesting the
Tribunal to find that:
(1) China’s maritime entitlements in the South China Sea, like those of
the Philippines, may not extend beyond those expressly permitted by the
United Nations Convention on the Law of the Sea;
(2) China’s claims to sovereign rights jurisdiction, and to “historic
rights”, with respect to the maritime areas of the South China Sea
encompassed by the so-called “nine-dash line” are contrary to the
Convention and without lawful effect to the extent that they exceed the
geographic and substantive limits of China’s maritime entitlements
expressly permitted by UNCLOS;
(3) Scarborough Shoal generates no entitlement to an exclusive economic
zone or continental shelf;
(4) Mischief Reef, Second Thomas Shoal, and Subi Reef are low-tide
elevations that do not generate entitlement to a territorial sea, exclusive
economic zone or continental shelf, and are not features that are capable of
appropriation by occupation or otherwise;
(5) Mischief Reef and Second Thomas Shoal are part of the exclusive
economic zone and continental shelf of the Philippines;
(6) Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide
elevations that do not generate entitlement to a territorial sea, exclusive
economic zone or continental shelf, but their low-water line may be used to
determine the baseline from which the breadth of the territorial sea of
Namyit and Sin Cowe, respectively, is measured;
(7) Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no
entitlement to an exclusive economic zone or continental shelf;
(8) 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;
(9) China has unlawfully failed to prevent its nationals and vessels from
exploiting the living resources in the exclusive economic zone of the
Philippines;
(10) China has unlawfully prevented Philippine fishermen from pursuing
their livelihoods by interfering with traditional fishing activities at
Scarborough Shoal;
(11) 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;
(12) China’s occupation of and construction activities on Mischief Reef
(a) violate the provisions of the Convention concerning artificial
islands, installations and structures;
(b) violate China’s duties to protect and preserve the marine
environment under the Convention; and
(c) constitute unlawful acts of attempted appropriation in violation of
the Convention;
(13) 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;
(14) 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
(15) China shall respect the rights and freedoms of the Philippines under
the Convention, shall comply with its duties under the Convention,
including those relevant to the protection and preservation of the marine
environment in the South China Sea, and shall exercise its rights and
freedoms in the South China Sea with due regard to those of the Philippines
under the Convention.
With respect to jurisdiction, the Philippines has asked the Tribunal to
declare that the Philippines’ claims “are entirely within its jurisdiction
and are fully admissible.”
China does not accept and is not participating in this arbitration but
stated its position that the Tribunal “does not have jurisdiction over this
case.” In its Position Paper, China advanced the following arguments:
- The essence of the subject-matter of the arbitration is the territorial
sovereignty over several maritime features in the South China Sea, which is
beyond the scope of the Convention and does not concern the interpretation
or application of the Convention;
- China and the Philippines have agreed, through bilateral instruments
and the Declaration on the Conduct of Parties in the South China Sea, to
settle their relevant disputes through negotiations. By unilaterally
initiating the present arbitration, the Philippines has breached its
obligation under international law;
- Even assuming, arguendo, that the subject-matter of the arbitration
were concerned with the interpretation or application of the Convention,
that subject-matter would constitute an integral part of maritime
delimitation between the two countries, thus falling within the scope of the
declaration filed by China in 2006 in accordance with the Convention, which
excludes, inter alia, disputes concerning maritime delimitation from
compulsory arbitration and other compulsory dispute settlement procedures;
Although China has not made equivalent public statements with respect to the
merits of the majority of the Philippines’ claims, the Tribunal has sought
throughout the proceedings to ascertain China’s position on the basis of
its contemporaneous public statements and diplomatic correspondence.
3. The Tribunal’s Decisions on the Scope of its Jurisdiction
The Tribunal has addressed the scope of its jurisdiction to consider the
Philippines’ claims both in its Award on Jurisdiction, to the extent that
issues of jurisdiction could be decided as a preliminary matter, and in its
Award of 12 July 2016, to the extent that issues of jurisdiction were
intertwined with the merits of the Philippines’ claims. The Tribunal’s
Award of 12 July 2016 also incorporates and reaffirms the decisions on
jurisdiction taken in the Award on Jurisdiction.
For completeness, the Tribunal’s decisions on jurisdiction in both awards
are summarized here together. a. Preliminary Matters
In its Award on Jurisdiction, the Tribunal considered a number of
preliminary matters with respect to its jurisdiction. The Tribunal noted
that both the Philippines and China are parties to the Convention and that
the Convention does not permit a State to except itself generally from the
mechanism for the resolution of disputes set out in the Convention. The
Tribunal held that China’s non-participation does not deprive the Tribunal
of jurisdiction and that the Tribunal had been properly constituted pursuant
to the provisions of Annex VII to the Convention, which include a procedure
to form a tribunal even in the absence of one party. Finally, the Tribunal
rejected an argument set out in China’s Position Paper and held that the
mere act of unilaterally initiating an arbitration cannot constitute an
abuse of the Convention.
b. Existence of a Dispute Concerning Interpretation and Application
of the Convention
In its Award on Jurisdiction, the Tribunal considered whether the Parties’
disputes concerned the interpretation or application of the Convention,
which is a requirement for resort to the dispute settlement mechanisms of
the Convention.
The Tribunal rejected the argument set out in China’s Position Paper that
the Parties’ dispute is actually about territorial sovereignty and
therefore not a matter concerning the Convention. The Tribunal accepted that
there is a dispute between the Parties concerning sovereignty over islands
in the South China Sea, but held that the matters submitted to arbitration
by the Philippines do not concern sovereignty. The Tribunal considered that
it would not need to implicitly decide sovereignty to address the
Philippines’ Submissions and that doing so would not advance the
sovereignty claims of either Party to islands in the South China Sea.
The Tribunal also rejected the argument set out in China’s Position Paper
that the Parties’ dispute is actually about maritime boundary delimitation
and therefore excluded from dispute settlement by Article 298 of the
Convention and a declaration that China made on 25 August 2006 pursuant to
that Article. The Tribunal noted that a dispute concerning whether a State
has an entitlement to a maritime zone is a distinct matter from the
delimitation of maritime zones in an area in which they overlap. The
Tribunal noted that entitlements, together with a wide variety of other
issues, are commonly considered in a boundary delimitation, but can also
arise in other contexts. The Tribunal held that it does not follow that a
dispute over each of these issues is necessarily a dispute over boundary
delimitation.
Finally, the Tribunal held that each of the Philippines’ Submissions
reflected a dispute concerning the Convention. In doing so, the Tribunal
emphasized (a) that a dispute concerning the interaction between the
Convention and other rights (including any Chinese “historic rights”) is a
dispute concerning the Convention and (b) that where China has not clearly
stated its position, the existence of a dispute may be inferred from the
conduct of a State or from silence and is a matter to be determined
objectively.
c. Involvement of Indispensable Third-Parties
In its Award on Jurisdiction, the Tribunal considered whether the absence
from this arbitration of other States that have made claims to the islands
of the South China Sea would be a bar to the Tribunal’s jurisdiction. The
Tribunal noted that the rights of other States would not form “the very
subject-matter of the decision,” the standard for a third-party to be
indispensable. The Tribunal further noted that in December
2014, Viet Nam had submitted a statement to the Tribunal, in which Viet Nam
asserted that it has “no doubt that the Tribunal has jurisdiction in these
proceedings.” The Tribunal also noted that Viet Nam, Malaysia, and
Indonesia had attended the hearing on jurisdiction as observers, without any
State raising the argument that its participation was indispensable.
In its Award of 12 July 2016, the Tribunal noted that it had received a
communication from Malaysia on 23 June 2016, recalling Malaysia’s claims in
the South China Sea. The Tribunal compared its decisions on the merits of
the Philippines’ Submissions with the rights claimed by Malaysia and
reaffirmed its decision that Malaysia is not an indispensable party and that
Malaysia’s interests in the South China Sea do not prevent the Tribunal
from addressing the Philippines’ Submissions.
d. Preconditions to Jurisdiction
In its Award on Jurisdiction, the Tribunal considered the applicability of
Articles 281 and 282 of the Convention, which may prevent a State from
making use of the mechanisms under the Convention if they have already
agreed to another means of dispute resolution.
The Tribunal rejected the argument set out in China’s Position Paper that
the 2002 China–ASEAN Declaration on the Conduct of Parties in the South
China Sea prevented the Philippines from initiating arbitration. The
Tribunal held that the Declaration is a political agreement and not legally
binding, does not provide a mechanism for binding settlement, does not
exclude other means of dispute settlement, and therefore does not restrict
the Tribunal’s jurisdiction under Articles 281 or 282. The Tribunal also
considered the Treaty of Amity and Cooperation in Southeast Asia, and the
Convention on Biological Diversity, and a series of joint statements issued
by the Philippines and China referring to the resolution of disputes through
negotiations and concluded that none of these instruments constitute an
agreement that would prevent the Philippines from bringing its claims to
arbitration.
The Tribunal further held that the Parties had exchanged views regarding the
settlement of their disputes, as required by Article 283 of the Convention,
before the Philippines initiated the arbitration. The Tribunal concluded
that this requirement was met in the record of diplomatic communications
between the Philippines and China, in which the Philippines expressed a
clear preference for multilateral negotiations involving the other States
surrounding the South China Sea, while China insisted that only bilateral
talks could be considered.
e. Exceptions and Limitations to Jurisdiction
In its Award of 12 July 2016, the Tribunal considered whether the
Philippines’ Submissions concerning Chinese historic rights and the ‘nine-
dash line’ were affected by the exception from jurisdiction for disputes
concerning “historic title” in Article 298 of the Convention. The Tribunal
reviewed the meaning of “historic title” in the law of the sea and held
that this refers to claims of historic sovereignty over bays and other near-
shore waters. Reviewing China’s claims and conduct in the South China Sea,
the Tribunal concluded that China claims historic rights to resources within
the ‘nine-dash line’, but does not claim historic title over the waters
of the South China Sea. Accordingly, the Tribunal concluded that it had
jurisdiction to consider the Philippines’ claims concerning historic rights
and, as between the Philippines and China, the ‘nine-dash line’.
In its Award of 12 July 2016, the Tribunal also considered whether the
Philippines’ Submissions were affected by the exception from jurisdiction
in Article 298 for disputes concerning sea boundary delimitation. The
Tribunal had already found in its Award on Jurisdiction that the Philippines
’ Submissions do not concern boundary delimitation as such, but noted that
several of the Philippines’ Submissions were dependent on certain areas
forming part of the Philippines’ exclusive economic zone. The Tribunal held
that it could only address such submissions if there was no possibility
that China could have an entitlement to an exclusive economic zone
overlapping that of the Philippines and deferred a final decision on its
jurisdiction. In its Award of 12 July 2016, the Tribunal reviewed evidence
about the reefs and islands claimed by China in the South China Sea and
concluded that none is capable of generating an entitlement to an exclusive
economic zone. Because China has no possible entitlement to an exclusive
economic zone overlapping that of the Philippines in the Spratly Islands,
the Tribunal held that the Philippines’ submissions were not dependent on a
prior delimitation of a boundary.
In its Award of 12 July 2016, the Tribunal also considered whether the
Philippines’ Submissions were affected by the exception from jurisdiction
in Article 298 for disputes concerning law enforcement activities in the
exclusive economic zone. The Tribunal recalled that the exception in Article
298 would apply only if the Philippines’ Submissions related to law
enforcement activities in China’s exclusive economic zone. Because, however
, the Philippines’ Submissions related to events in the Philippines’ own
exclusive economic zone or in the territorial sea, the Tribunal concluded
that Article 298 did not pose an obstacle to its jurisdiction.
Lastly, in its Award of 12 July 2016, the Tribunal considered whether the
Philippines’ submissions were affected by the exception from jurisdiction
in Article 298 for disputes concerning military activities. The Tribunal
considered that the stand-off between Philippine marines on Second Thomas
Shoal and Chinese naval and law enforcement vessels constituted military
activities and concluded that it lacked jurisdiction over the Philippines’
Submission No. 14(a)-(c). The Tribunal also considered whether China’s land
reclamation and construction of artificial islands at seven features in the
Spratly Islands constituted military activities, but noted that China had
repeatedly emphasized the non-military nature of its actions and had stated
at the highest level that it would not militarize its presence in the
Spratlys. The Tribunal decided that it would not deem activities to be
military in nature when China itself had repeatedly affirmed the opposite.
Accordingly, the Tribunal concluded that Article 298 did not pose an
obstacle to its jurisdiction.
4. The Tribunal’s Decisions on the Merits of the Philippines’ Claims
a. The ‘Nine-Dash Line’ and China’s Claim to Historic Rights in the
Maritime Areas of the South China Sea
In its Award of 12 July 2016, the Tribunal considered the implications of
China’s ‘nine-dash line’ and whether China has historic rights to
resources in the South China Sea beyond the limits of the maritime zones
that it is entitled to pursuant to the Convention.
The Tribunal examined the history of the Convention and its provisions
concerning maritime zones and concluded that the Convention was intended to
comprehensively allocate the rights of States to maritime areas. The
Tribunal noted that the question of pre-existing rights to resources (in
particular fishing resources) was carefully considered during the
negotiations on the creation of the exclusive economic zone and that a
number of States wished to preserve historic fishing rights in the new zone.
This position was rejected, however, and the final text of the Convention
gives other States only a limited right of access to fisheries in the
exclusive economic zone (in the event the coastal State cannot harvest the
full allowable catch) and no rights to petroleum or mineral resources. The
Tribunal found that China’s claim to historic rights to resources was
incompatible with the detailed allocation of rights and maritime zones in
the Convention and concluded that, to the extent China had historic rights
to resources in the waters of the South China Sea, such rights were
extinguished by the entry into force of the Convention to the extent they
were incompatible with the Convention’s system of maritime zones.
The Tribunal also examined the historical record to determine whether China
actually had historic rights to resources in the South China Sea prior to
the entry into force of the Convention. The Tribunal noted that there is
evidence that Chinese navigators and fishermen, as well as those of other
States, had historically made use of the islands in the South China Sea,
although the Tribunal emphasized that it was not empowered to decide the
question of sovereignty over the islands. However, the Tribunal considered
that prior to the Convention, the waters of the South China Sea beyond the
territorial sea were legally part of the high seas, in which vessels from
any State could freely navigate and fish. Accordingly, the Tribunal
concluded that historical navigation and fishing by China in the waters of
the South China Sea represented the exercise of high seas freedoms, rather
than a historic right, and that there was no evidence that China had
historically exercised exclusive control over the waters of the South China
Sea or prevented other States from exploiting their resources.
Accordingly, the Tribunal concluded that, as between the Philippines and
China, there was no legal basis for China to claim historic rights to
resources, in excess of the rights provided for by the Convention, within
the sea areas falling within the ‘nine-dash line’.
b. The Status of Features in the South China Sea
In its Award of 12 July 2016, the Tribunal considered the status of features
in the South China Sea and the entitlements to maritime areas that China
could potentially claim pursuant to the Convention.
The Tribunal first undertook a technical evaluation as to whether certain
coral reefs claimed by China are or are not above water at high tide. Under
Articles 13 and 121 of the Convention, features that are above water at high
tide generate an entitlement to at least a 12 nautical mile territorial sea
, whereas features that are submerged at high tide generate no entitlement
to maritime zones. The Tribunal noted that many of the reefs in the South
China Sea have been heavily modified by recent land reclamation and
construction and recalled that the Convention classifies features on the
basis of their natural condition. The Tribunal appointed an expert
hydrographer to assist it in evaluating the Philippines’ technical evidence
and relied heavily on archival materials and historical hydrographic
surveys in evaluating the features. The Tribunal agreed with the Philippines
that Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef
are high-tide features and that Subi Reef, Hughes Reef, Mischief Reef, and
Second Thomas Shoal were submerged at high tide in their natural condition.
However, the Tribunal disagreed with the Philippines regarding the status of
Gaven Reef (North) and McKennan Reef and concluded that both are high tide
features.
The Tribunal then considered whether any of the features claimed by China
could generate an entitlement to maritime zones beyond 12 nautical miles.
Under Article 121 of the Convention, islands generate an entitlement to an
exclusive economic zone of 200 nautical miles and to a continental shelf,
but “[r]ocks which cannot sustain human habitation or economic life of
their own shall have no exclusive economic zone or continental shelf.” The
Tribunal noted that this provision was closely linked to the expansion of
coastal State jurisdiction with the creation of the exclusive economic zone
and was intended to prevent insignificant features from generating large
entitlements to maritime zones that would infringe on the entitlements of
inhabited territory or on the high seas and the area of the seabed reserved
for the common heritage of mankind. The Tribunal interpreted Article 121 and
concluded that the entitlements of a feature depend on (a) the objective
capacity of a feature, (b) in its natural condition, to sustain either (c) a
stable community of people or (d) economic activity that is neither
dependent on outside resources nor purely extractive in nature.
The Tribunal noted that many of the features in the Spratly Islands are
currently controlled by one or another of the littoral States, which have
constructed installations and maintain personnel there. The Tribunal
considered these modern presences to be dependent on outside resources and
support and noted that many of the features have been modified to improve
their habitability, including through land reclamation and the construction
of infrastructure such as desalination plants. The Tribunal concluded that
the current presence of official personnel on many of the features does not
establish their capacity, in their natural condition, to sustain a stable
community of people and considered that historical evidence of habitation or
economic life was more relevant to the objective capacity of the features.
Examining the historical record, the Tribunal noted that the Spratly Islands
were historically used by small groups of fishermen from China, as well as
other States, and that several Japanese fishing and guano mining enterprises
were attempted in the 1920s and 1930s. The Tribunal concluded that
temporary use of the features by fishermen did not amount to inhabitation by
a stable community and that all of the historical economic activity had
been extractive in nature. Accordingly, the Tribunal concluded that all of
the high-tide features in the Spratly Islands (including, for example, Itu
Aba, Thitu, West York Island, Spratly Island, North-East Cay, South-West Cay
) are legally “rocks” that do not generate an exclusive economic zone or
continental shelf.
The Tribunal also held that the Convention does not provide for a group of
islands such as the Spratly Islands to generate maritime zones collectively
as a unit.
c. Chinese Activities in the South China Sea
In its Award of 12 July 2016, the Tribunal considered the lawfulness under
the Convention of various Chinese actions in the South China Sea.
Having found that Mischief Reef, Second Thomas Shoal and Reed Bank are
submerged at high tide, form part of the exclusive economic zone and
continental shelf of the Philippines, and are not overlapped by any possible
entitlement of China, the Tribunal concluded that the Convention is clear
in allocating sovereign rights to the Philippines with respect to sea areas
in its exclusive economic zone. The Tribunal found as a matter of fact that
China had (a) interfered with Philippine petroleum exploration at Reed Bank,
(b) purported to prohibit fishing by Philippine vessels within the
Philippines’ exclusive economic zone, (c) protected and failed to prevent
Chinese fishermen from fishing within the Philippines’ exclusive economic
zone at Mischief Reef and Second Thomas Shoal, and (d) constructed
installations and artificial islands at Mischief Reef without the
authorization of the Philippines. The Tribunal therefore concluded that
China had violated the Philippines’ sovereign rights with respect to its
exclusive economic zone and continental shelf.
The Tribunal next examined traditional fishing at Scarborough Shoal and
concluded that fishermen from the Philippines, as well as fishermen from
China and other countries, had long fished at the Shoal and had traditional
fishing rights in the area. Because Scarborough Shoal is above water at high
tide, it generates an entitlement to a territorial sea, its surrounding
waters do not form part of the exclusive economic zone, and traditional
fishing rights were not extinguished by the Convention. Although the
Tribunal emphasized that it was not deciding sovereignty over Scarborough
Shoal, it found that China had violated its duty to respect to the
traditional fishing rights of Philippine fishermen by halting access to the
Shoal after May 2012. The Tribunal noted, however, that it would reach the
same conclusion with respect to the traditional fishing rights of Chinese
fishermen if the Philippines were to prevent fishing by Chinese nationals at
Scarborough Shoal.
The Tribunal also considered the effect of China’s actions on the marine
environment. In doing so, the Tribunal was assisted by three independent
experts on coral reef biology who were appointed to assist it in evaluating
the available scientific evidence and the Philippines’ expert reports. The
Tribunal found that China’s recent large scale land reclamation and
construction of artificial islands at seven features in the Spratly Islands
has caused severe harm to the coral reef environment and that China has
violated its obligation under Articles 192 and 194 of the Convention to
preserve and protect the marine environment with respect to fragile
ecosystems and the habitat of depleted, threatened, or endangered species.
The Tribunal also found that Chinese fishermen have engaged in the
harvesting of endangered sea turtles, coral, and giant clams on a
substantial scale in the South China Sea, using methods that inflict severe
damage on the coral reef environment. The Tribunal found that Chinese
authorities were aware of these activities and failed to fulfill their due
diligence obligations under the Convention to stop them.
Finally, the Tribunal considered the lawfulness of the conduct of Chinese
law enforcement vessels at Scarborough Shoal on two occasions in April and
May 2012 when Chinese vessels had sought to physically obstruct Philippine
vessels from approaching or gaining entrance to the Shoal. In doing so, the
Tribunal was assisted by an independent expert on navigational safety who
was appointed to assist it in reviewing the written reports provided by the
officers of the Philippine vessels and the expert evidence on navigational
safety provided by the Philippines. The Tribunal found that Chinese law
enforcement vessels had repeatedly approached the Philippine vessels at high
speed and sought to cross ahead of them at close distances, creating
serious risk of collision and danger to Philippine ships and personnel. The
Tribunal concluded that China had breached its obligations under the
Convention on the International Regulations for Preventing Collisions at Sea
, 1972, and Article 94 the Convention concerning maritime safety.
d. Aggravation of the Dispute between the Parties
In its Award of 12 July 2016, the Tribunal considered whether China’s
recent large-scale land reclamation and construction of artificial islands
at seven features in the Spratly Islands since the commencement of the
arbitration had aggravated the dispute between the Parties. The Tribunal
recalled 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. The Tribunal noted
that China has (a) built a large artificial island on Mischief Reef, a low-
tide elevation located in the exclusive economic zone of the Philippines; (b
) caused permanent, irreparable harm to the coral reef ecosystem and (c)
permanently destroyed evidence of the natural condition of the features in
question. The Tribunal concluded that China had violated its obligations to
refrain from aggravating or extending the Parties’ disputes during the
pendency of the settlement process.
e. Future Conduct of the Parties
Finally, the Tribunal considered the Philippines’ request for a declaration
that, going forward, China shall respect the rights and freedoms of the
Philippines and comply with its duties under the Convention. In this respect
, the Tribunal noted that both the Philippines and China have repeatedly
accepted that the Convention and general obligations of good faith define
and regulate their conduct. The Tribunal considered that the root of the
disputes at issue in this arbitration lies not in any intention on the part
of China or the Philippines to infringe on the legal rights of the other,
but rather in fundamentally different understandings of their respective
rights under the Convention in the waters of the South China Sea. The
Tribunal recalled that it is a fundamental principle of international law
that bad faith is not presumed and noted that Article 11 of Annex VII
provides that the “award . . . shall be complied with by the parties to the
dispute.” The Tribunal therefore considered that no further declaration
was necessary. | c*******9
发帖数: 9032 | 2 太长，谁总结一下要点。
maritime
and
【在 y*z 的大作中提到】
: The Hague, 12 July 2016
: The Tribunal Renders Its Award
: A unanimous Award has been issued today by the Tribunal constituted under
: Annex VII to the United Nations Convention on the Law of the Sea (the “
: Convention”) in the arbitration instituted by the Republic of the
: Philippines against the People’s Republic of China.
: This arbitration concerned the role of historic rights and the source of
: maritime entitlements in the South China Sea, the status of certain maritime
: features and the maritime entitlements they are capable of generating, and
: the lawfulness of certain actions by China that were alleged by the
| s****e
发帖数: 7018 | 3 就是一个屁，把它放了就完了
老子看谁敢执行
我先把我家附近的丰田销售中心夷为平地 | y*z
发帖数: 3244 | 4 国际法庭就是一坨屎。
中国也需要向米国那样，国内法高于国际法。 | x******g
发帖数: 33885 | 5 一开头这句话就摆明这个法庭在不袒护中国：
the Tribunal has emphasized that it does not rule on any question of
sovereignty over land territory and does not delimit any boundary between
the Parties.
既然如此，后面的长文就当是放屁。 | l*****i
发帖数: 20533 | 6 这不是什么‘宣判’，只是一个自称‘法庭’的其实是个调解机构的单方面意见。而这
种偏向一方的意见还是受外部干扰才造成的。 | x******g
发帖数: 33885 | 7 但法庭又否定了中国九段线范围内海面的主权：
The Tribunal concluded that there was no legal basis for China to claim
historic rights to resources within the sea areas falling within the ‘nine-
dash line’. | h*********n
发帖数: 11319 | 8 ‘常设仲裁法庭’并不是真正的国际法庭。所谓仲裁庭可以看作只是一个国际法法官的
俱乐部。因为这帮人是法官，所以处处模仿法院也是自然的，包括把俱乐部名字都定成
什么‘仲裁庭’。但其实他们的意见毫无约束力。如果说他和联合国有什么关系，那就
是这个法官俱乐部组织在联合国备了案，属于联合国承认的国际组织之一。仅此而已。
在过去的时间内，由于其意见缺乏约束力，这个所谓‘仲裁庭’能够调解成功的案例非
常少，以至于一段时间基本淡出人们视线。这次由于美国的舆论导向，这个玩意才突然
进入国际政治的舞台中心，俨然要由李鬼代替李逵，取代真正的海牙国际法院了。
最后，用维基的相关内容做结尾：
The PCA is not a “court" in the conventional understanding of that term but
an administrative organization with the object of having permanent and
readily available means to serve as the registry for purposes of
international arbitration and other related procedures, including
commissions of enquiry and conciliation.
maritime
and
【在 y*z 的大作中提到】
: The Hague, 12 July 2016
: The Tribunal Renders Its Award
: A unanimous Award has been issued today by the Tribunal constituted under
: Annex VII to the United Nations Convention on the Law of the Sea (the “
: Convention”) in the arbitration instituted by the Republic of the
: Philippines against the People’s Republic of China.
: This arbitration concerned the role of historic rights and the source of
: maritime entitlements in the South China Sea, the status of certain maritime
: features and the maritime entitlements they are capable of generating, and
: the lawfulness of certain actions by China that were alleged by the
| x******g
发帖数: 33885 | 9 法庭认为中国侵犯了菲律宾的主权：有三条罪状：
the Tribunal found that China had violated the Philippines’ sovereign
rights in its exclusive economic zone by (a) interfering with Philippine
fishing and petroleum exploration, (b) constructing artificial islands and (
c) failing to prevent Chinese fishermen from fishing in the zone. | l*****i
发帖数: 20533 | 10 这根本就不是‘法庭’。用词请注意准确性。如果只是引用，请带上必要的标点符号。
(
【在 x******g 的大作中提到】
: 法庭认为中国侵犯了菲律宾的主权：有三条罪状：
: the Tribunal found that China had violated the Philippines’ sovereign
: rights in its exclusive economic zone by (a) interfering with Philippine
: fishing and petroleum exploration, (b) constructing artificial islands and (
: c) failing to prevent Chinese fishermen from fishing in the zone.
| x******g
发帖数: 33885 | 11 法庭认为中国渔民破坏了当地海洋的生态系统，对被保护鱼类进行种族绝灭，而中国领
导人对此知道了却不闻不问。
found that China had caused severe harm to the coral reef environment
and violated its obligation to preserve and protect fragile ecosystems and
the habitat of depleted, threatened, or endangered species. The Tribunal
also found that Chinese authorities were aware that Chinese fishermen have
harvested endangered sea turtles, coral, and giant clams on a substantial
scale in the South China Sea (using methods that inflict severe damage on
the coral reef environment) and had not fulfilled their obligations to stop
such activities. | x******g
发帖数: 33885 | 12 法庭的结论是：它无法对这个海洋争端做出裁决，因为南海不是这个法庭能管的地区。
The Tribunal found that it lacked jurisdiction to consider the implications
of a stand-off between Philippine marines and Chinese naval and law
enforcement vessels at Second Thomas Shoal, holding
that this dispute involved military activities and was therefore excluded
from compulsory settlement. | x******g
发帖数: 33885 | 13 所以，对邓产党来说，这个案子的结论对它继续在南海的作业没有任何影响，大家该干
啥就继续干啥。 |
|
