3-Oct-16

Post-Arbitration Behavior

Compliance

1. China’s maritime
entitlements in the SCS
may not extend beyond
those expressly permitted
by UNCLOS

Submission

“[T]he Convention superseded any
historic rights, or other sovereign
rights or jurisdiction, in excess of
the limits imposed therein.” PCA
Award ¶ 1203(B)(2)

Decision

“China has territorial sovereignty and
maritime rights and interests in the South
China Sea, including, inter alia: i. China has
sovereignty over Nanhai Zhudao, consisting of
Dongsha Qundao, Xisha Qundao, Zhongsha
Qundao and Nansha Qundao; ii. China has
internal waters, territorial sea and contiguous
zone, based on Nanhai Zhudao; iii. China has
exclusive economic zone and continental shelf,
based on Nanhai Zhudao; iv. China has
historic rights in the South China Sea.” CN
Gov’t statement

Uncertain
(depends on
whether the
‘historic
rights’ are w/n
the territorial
sea (allowed)
or EEZ (not
allowed). CN
hasn’t clarified

2. China’s claims to
sovereign rights
jurisdiction and to historic
rights within the “nine-dash
line” are contrary to
UNCLOS and without
lawful effect.

“China’s claims to historic rights, or
other sovereign rights or
jurisdiction, with respect to the
maritime areas of the South China
Sea encompassed by the relevant
part of the ‘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 under the
Convention.” ¶ 1203(B)(2)

“Based on the practice of the Chinese people
and the Chinese government in the long course
of history and the position consistently upheld
by successive Chinese governments, and
pursuant to China's national law and under
international law, including the
1958 Declaration of the Government of the
People's Republic of China on China's
Territorial Sea, the 1992 Law of the People's
Republic of China on the Territorial Sea and
the Contiguous Zone, the 1996 Decision of the
Standing Committee of the National People's
Congress of the People's Republic of China on
the Ratification of the United Nations
Convention on the Law of the Sea, the
1998 Law of the People's Republic of China on
the Exclusive Economic Zone and the

Uncertain
(same reasons
as above)

By Julian Ku & Christopher Mirasola
Lawfareblog.com

1

 3-Oct-16

3. Scarborough Shoal
generates no entitlement to
an exclusive economic
zone or continental shelf.

4. Mischief Reef, Second
Thomas Shoal and Subi
Reef are LTEs that do not
generate a TS, EEZ 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 Philippines’
EEZ and CS.

“[N]one of the high-tide features in
the Spratly Islands, in their natural
condition, are capable of sustaining
human habitation or economic life
of their own within the meaning of
Article 121(3) of the Convention.”
¶ 1203(B)(7)(a)
“Subi Reef, Gaven Reef (South),
Hughes Reef, Mischief Reef, and
Second Thomas Shoal, are low-tide
elevations, within the meaning of
Article 13 of the Convention.”
¶ 1203(B)(3)(c)

Continental Shelf, and the 1982 United Nations
Convention on the Law of the Sea, China has,
based on Nanhai Zhudao, internal waters,
territorial sea, contiguous zone, exclusive
economic zone and continental shelf. In
addition, China has historic rights in the South
China Sea.” CN White Paper
CN hasn’t taken a position on the UNCLOS
Uncertain
characterization of the reef, and therefore has
not asserted that Scarborough should be
afforded an EEZ or CS.

CN hasn’t taken a position on the UNCLOS
characterization of any of these features.

“[A]s low-tide elevations, Mischief
CN continues to occupy Mischief Reef & use
Reef and Second Thomas Shoal do
it for military & civilian purposes.
not generate entitlements to a
territorial sea, exclusive economic
zone, or continental shelf and are not
features that are capable of
appropriation.” ¶ 1203(b)(4)

Uncertain

Non-compliant
(CN
occupation of
PHL territory
continues).

“Mischief Reef and Second Thomas
Shoal are within the exclusive
economic zone and continental shelf
By Julian Ku & Christopher Mirasola
Lawfareblog.com

2

 3-Oct-16

6. Gaven Reef and
McKennan Reef (including
Hughes Reef) are LTEs
that do not generate
entitlement to a TS, EEZ,
or CS, but their low-water
line may be used to
determine the baseline for
Namyit and Sin Cowe,
respectively.
7. Johnson Reef, Cuarteron
Reef and Fiery Cross Reef
generate no entitlement to
an EEZ or CS.

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 EEZ and
CS.

of the Philippines.” § 1203(B)(7)
“Gaven Reef (South) lies within 12
nautical miles of the high-tide
features of Gaven Reef (North) and
Namyit Island.” ¶ 1203(B)(3)(e)
“Hughes Reef lies within 12 nautical
miles of the high-tide features of
McKennan Reef and Sin Cowe
Island.” ¶ 1203(B)(3)(f)
“none of the high-tide features in the
Spratly Islands, in their natural
condition, are capable of sustaining
human habitation or economic life
of their own within the meaning of
Article 121(3) of the Convention”
¶ 1203(B)(7)(a)
“China has, through the operation
of its maritime surveillance vessels
in relation to M/V Veritas Voyager
on 1 and 2 March 2011 breached its
obligations under 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.” ¶ 1203(B)(8)

CN continues to sustain artificial islands at
Gaven Reef & Hughes Reef.
Tribunal didn’t take a position on territorial
claims, so these LTEs would be w/n territorial
sea of the high-tide features and therefore
would be subject to claimant State’s use.

Uncertain

As above, CN has not taken a position on
whether these features should be afforded an
EEZ or CS. However, it does continue to
maintain artificial islands on Johnson Reef &
Fiery Cross Reef.

Uncertain

Evidence that moratorium on fishing continued Non-compliant
after the arbitral ruling (CN media).
on one ground
stated by the
tribunal.

“China has, by promulgating its
2012 moratorium on fishing in the
South China Sea, without exception
for areas of the South China Sea
By Julian Ku & Christopher Mirasola
Lawfareblog.com

3

 3-Oct-16

9. China has unlawfully
failed to prevent its
nationals and vessels from
exploiting the living
resources in the EEZ of the
Philippines.

falling within the exclusive
economic zone of the Philippines
and without limiting the moratorium
to Chinese flagged vessels, breached
its obligations under Article 56 of
the Convention with respect to the
Philippines’ sovereign rights over
the living resources of its exclusive
economic zone.” ¶ 1203(B)(9)
“China has breached its obligations
under Article 58(3) of the
Convention” with respect to fishing
by Chinese vessels at Mischief Reef
and Second Thomas Shoal (May
2013). ¶ 1203(B)(10)

No specific reports of CN fishermen near
Mischief Reef/2d Thomas Shoal, but since
Mischief Reef is controlled by CN it seems
unlikely that there are no CN fishermen in the
area.

Uncertain

See also Supreme People’s Court decision that
CN can prosecute anyone illegally fishing in
its claimed waters, unclear if CN believes that
includes waters around Mischief.

10. China has unlawfully
prevented Philippine
fishermen from pursuing
their livelihoods by
interfering with traditional
fishing activities at
Scarborough Shoal.

“Scarborough Shoal has been a
traditional fishing ground for
fishermen of many nationalities and
DECLARES that China has, through
the operation of its official vessels at
Scarborough Shoal from May 2012
onwards, unlawfully prevented
fishermen from the Philippines from
engaging in traditional fishing at
Scarborough Shoal.” ¶ 1203(B)(11)

By Julian Ku & Christopher Mirasola
Lawfareblog.com

Evidence of increased Chinese State vessel
presence at Scarborough Shoal (beyond what
was deemed to be prohibited by tribunal).

Non-compliant

Recent report of Coast Guard vessels driving
Philippine fishermen away from Scarborough
Shoal.
But also signs that the two sides may be
moving toward a deal whereby fishermen from
4

 3-Oct-16

11. China has violated its
obligations under
UNCLOS 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.

“China has breached its obligations
under Articles 192 and 194(5) of the
convention” with respect to the
protection and preservation of the
marine environment due to [a]
harvesting of endangered species on
a significant scale [b] harvesting of
giant clams in a manner that is
severely destructive of the coral reef
ecosystem, and [c] that “China was
aware of, tolerated, protected, and
failed to prevent the aforementioned
harmful activities.” ¶ 1203(B)(12)

12. China’s occupation of
and construction activities
on Mischief Reef: (a)
violate the UNCLOS
provisions concerning
artificial islands,
installations and structures;
(b) violate China’s duties to
protect and preserve the
marine environment under
UNCLOS; and (c)
constitute unlawful acts of
attempted appropriation in
violation of UNCLOS.

“China has breached Article 60 and
80 of the convention with respect to
the Philippines’ sovereign rights in
its exclusive economic zone and
continental shelf” due to “China’s
construction of artificial islands,
installations, and structures at
Mischief Reef.” ¶ 1203(B)(14)(c)

both sides would be able to access these
traditional fishing grounds.
• No additional reports since ruling about
whether these practices have continued.

Satellite evidence of continued construction
on Mischief Reef as well as landing of civilian
aircraft from the Reef since the arbitral ruling
(this source, from late July).

Uncertain

Non-compliant

No reports of CN coordinating with other
States in its further island
construction/operation.

“[W]ith respect to the protection and
preservation of the marine
environment . . . China has breached
its obligations under Articles 123,
192, 194(1), 194(5), 197, and 206 of
the Convention” because (a)
“China’s land reclamation and

By Julian Ku & Christopher Mirasola
Lawfareblog.com

5

 3-Oct-16

13. China has breached its
obligations under
UNCLOS by operating its
law enforcement vessels in
a dangerous manner
causing serious risk of
collision to Philippine
vessels navigating near
Scarborough Shoal.

14. Since the
commencement of this
arbitration in January 2013,
China has unlawfully

construction of artificial islands has
caused severe, irreparable harm to
the coral reef ecosystem;”
(b) “China hasn’t cooperated or
coordinated with the other States
bordering the SCS concerning the
protection and preservation of the
marine environment concerning
such activities;” and (c) “China has
failed to communicate an assessment
of the potential effects of such
activities on the marine
environment, within the meaning of
Article 206.” ¶ 1203(B)(13)
“[W]ith respect to the operation of
Chinese law enforcement vessels in
the vicinity of Scarborough Shoal . .
. China has breached its obligations
under Article 94 of the Convention”
because (a) operations on 28 April
2012 and 26 May 2012 “created a
serious risk of collision and danger
to Philippine ships and personnel;”
and (b) operations on those days
“violated rules 2,6,7,8,15, and 16 of
the Convention on the International
Regulations for Preventing
Collisions at Sea, 1972.”
¶ 1203(B)(15)
“[T]he Tribunal finds that it lacks
jurisdiction to consider the
Philippines’ Submissions No. 14(a)
to (c).” ¶ 1162

By Julian Ku & Christopher Mirasola
Lawfareblog.com

The Philippine Coast Guard reports that, on
September 6th, Chinese Coast Guard vessels
chased Philippine fishermen away from
Scarborough Shoal. There are insufficient
details to determine whether this action
“created a serious risk of collision and danger
to Philippine ships and personnel.”

Uncertain

Not
Applicablehas to do with
behavior
6

 3-Oct-16
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.

“China has breached its obligations
pursuant to Article 279, 296, and
300 of the Convention, as well as
pursuant to general to general
international law, to abstain from
any measure capable of exercising a
prejudicial effect in regard to the
execution of the decisions to be
given and in general, not to allow
any steps of any kind to be taken
which might aggravate or extend the
dispute during such time as dispute
resolution proceedings were
ongoing” ¶ 1203(B)(16)

during course
of the
arbitration and
its effect on the
tribunal’s
jurisdiction.

China “aggravated the Parties’
dispute concerning their respective
rights and entitlements in the area of
Mischief Reef” ¶ 1203(B)(16)(d)
China “aggravated the Parties’
dispute concerning the protection
and preservation of the marine
environment at Mischief Reef”
¶ 1203(B)(16)(e)
China “extended the scope of the
Parties’ dispute concerning the
protection and preservation of the
marine environment to Cuarteron
Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes

By Julian Ku & Christopher Mirasola
Lawfareblog.com

7

 3-Oct-16
Reef, and Subi Reef.”
¶ 1203(B)(16)(f)

15. China shall respect the
rights and freedoms of the
Philippines under
UNCLOS, shall comply
with its duties under
UNCLOS, including those
relevant to the protection
and preservation of the
marine environment in the
SCS, and shall exercise its
rights and freedoms in the
SCS with due regard to
those of the Philippines
under UNCLOS.

China “aggravated the Parties’
dispute concerning the status of
maritime features in the Spratly
Islands and their capacity to
generate entitlements to maritime
zones” due to land reclamation and
construction activities.”
¶ 1203(B)(16)(g)
“The Tribunal considers it beyond
dispute that both Parties are obliged
to comply with the Convention,
including its provisions regarding
the resolution of disputes, and to
respect the rights and freedoms of
other States under the Convention.
Neither Party contests this, and the
Tribunal is therefore not persuaded
that it is necessary or appropriate for
it to make any further declaration.”
¶ 1201

By Julian Ku & Christopher Mirasola
Lawfareblog.com

“The Chinese government will continue to
abide by international law and basic norms
governing international relations as enshrined
in the Charter of the United Nations, including
the principles of respecting state sovereignty
and territorial integrity and peaceful settlement
of disputes, and continue to work with states
directly concerned to resolve the relevant
disputes in the South China Sea through
negotiations and consultations on the basis of
respecting historical facts and in accordance
with international law, so as to maintain peace
and stability in the South China Sea.” CN
Foreign Ministry Statement

Compliant

8