Legal status of the nine‑dash line : historic waters or historic rights
著者（英） Shigeki Sakamoto
journal or
publication title
The Doshisha Hogaku (The Doshisha law review)
volume 69
number 3
page range 1300‑1250
year 2017‑07‑31
権利（英） The Doshisha Law Association
URL http://doi.org/10.14988/pa.2019.0000000422
Legal Status of the Nine-Dash Line:
Historic Waters or Historic Rights
Shigeki Sakamoto
Table of Contents 1．Introduction
2．The Nine-Dash Line: Historic Waters or Historic Rights
（1）The Concept of Historic Waters
（2）China’s Claims to Historic Rights within the Nine-Dash Line
（3）Necessary Conditions for Establishing the “Historic Waters” Status 3．Rulings of the South China Sea Arbitral Tribunal
（1）Initiation of Arbitration
（2）Award on Jurisdiction
（3）Arbitration Award 4．Conclusion
1．Introduction
The United Nations Convention on the Law of the Sea （UNCLOS） was adopted in 1982. Sometimes referred to as “the Constitution of the Sea”, the UNCLOS is a codification of the law of the sea, and as such the marine- related domestic laws and regulations of every parties to UNCLOS must comply with it. However, this Convention suffers from a problem, one that
is hardly touched upon in its 320 constituent Articles. This article will cover that issue: the problem of historic waters and historic rights.
The word “historic” is used only in three Articles of the UNCLOS: in Article 10 paragraph 6, which concerns bays （“historic bays”）; in the proviso to Article 15, on determining the delimitation of territorial sea
（“historic title”）; and in Article 298 paragraph 1（a）（i）, which relates to optional exceptions to the compulsory dispute settlement procedures of Part XV （“historic bays or titles”）（1）. The UNCLOS contains no provisions related to the conditions necessary for a State to fulfill in order to claim a certain maritime area as their own “historic waters” or to claim “historic rights” over it.（2） In fact, draft articles concerning historic waters were proposed during the Third United Nations Conference on the Law of the Sea, in the process of codification on territorial sea, but reportedly faced strong opposition against their creation of generalized principles for determining historic waters.（3）
In its Preamble, however, the UNCLOS affirms that “matters not regulated by this Convention continue to be governed by the rules and
（1）Clive R. Symmons, “Historic Waters and Historic Rights in the South China Sea: A Critical Appraisal,” Shicun Wu, Mark Valencia and Nong Hong （eds.）, UN Convention on the Law of the Sea and the South China Sea, （Ashgate, 2015）, p. 191. In addition, Article 46（b）, regarding archipelagos, contains the provision: “‘Archipelago’ means ［a group of islands］...
which historically have been regarded as such.”
（2）However, one could evaluate Article 62 paragraph 3 of UNCLOS as implying historic rights, as it permits granting excessive and preferential access to one State’s exclusive economic zone to another “whose nationals have habitually fished in the zone...” Ibid., p. 195. With regard to the issue of historic waters versus historic rights, readers may refer to the 1974 India–Sri Lanka maritime boundary agreement, in which Sri Lanka’s pearl and shankha industries in the Manaar Bay influenced the delimitation of their maritime boundaries. Limits in the Seas, Historic waters boundary: India–Sri Lanka, USA, No. 66 （December 12, 1975）, pp. 5⊖6.
（3）Ted L McDorman, “Rights and jurisdiction over resources in the South China Sea: UNCLOS and the ‘nine-dash line,’” Wu, Valencia and Hong （eds.）, supra note 3, p. 151.
principles of general international law.” To this effect, the International Court of Justice （ICJ） stated the following in its Judgment in the Continental Shelf Case （Tunisia/Libya）:
It seems clear that the matter continues to be governed by general international law which does not provide for a single “régime” for
“historic waters” or “historic bays”, but only for a particular régime for each of the concrete, recognized cases of “historic waters” or “historic bays”. It is clearly the case that, basically, the notion of historic rights or waters and that of the continental shelf are governed by distinct legal régimes in customary international law. The first régime is based on acquisition and occupation, while the second is based on the existence of rights “ipso facto and ab initio.”（4）
According to the ICJ, the matters of whether a State possesses historic rights to a given maritime area, and whether a given maritime area has the status of historic waters, are governed by general international law: their answers are “based on acquisition and occupation.” Clive R. Symmons comments that even today, the notion of historic waters is generally regarded as an established part of the law of the sea.（5）
Symmons writes that the concepts of historic waters and historic rights are considered to differ in several respects. First, while asserting historic waters implies a claim to sovereignty in the specified water, asserting historic rights is no more than a jurisdictional claim （e.g., fishery rights） in certain waters. Second, while historic waters apply erga omnes, against all
（4）Continental Shelf （Tunisia/Libya） Case, ICJ Reports, 1982, p. 74, para. 100.
（5）Symmons, Historic Waters in the Law of the Sea: A Modern Reappraisal, （Martinus Nijhoff, 2008）, p. 296.
nations, historic rights apply to a particular state or states.（6） Third, a State must inevitably border historic waters in order to claim them as such, but there is no such restriction on historic rights.（7） In fact, in the first-stage award of the 1998 Eritrea–Yemen arbitration, the Permanent Court of Arbitration （PCA） tribunal commented that certain historic rights are a kind of “servitude international,” which falls short of territorial sovereignty.（8）
In the Philippines v. China arbitration case, the Philippines accused China’s claims under the so-called “nine-dash line” in the South China Sea of being in violation of the UNCLOS and therefore invalid. The Arbitral Tribunal established for the case according to UNCLOS Annex VII delivered its arbitration award on July 12 2016, ruling 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.”（9） While it did not attend the arbitration proceedings, China has claimed sovereignty over the islands and reefs within the nine-dash line, as well as sovereign rights and
（6）Symmons, supra note 1, pp. 193－194. In its Judgment on the Fisheries Jurisdiction Case
（1974）, the ICJ held that while Iceland possessed preferential fishing rights in fishing waters that it had established and expanded unilaterally, its actions were not opposable to other States, and it could not unilaterally exclude them from the waters concerned. Fisheries Jurisdiction Case （United Kingdom v. Iceland）, ICJ Reports 1974, p. 30, paras. 67⊖68.
（7）Symmons, supra note 5, p. 6.
（8）Award of Eritrea/Yemen Arbitration Case, Phase I, October 9, 1998, http://www.pca-cpa.
org, para. 126. Zhiguo Gao, the Chinese judge of the International Tribunal for the Law of the Sea, and Bing Bing Jia, Professor of Tsinghua University, point out that “The tribunal did not distinguish ‘historic rights’ from ‘historic title,’ but as indicated by its statement quoted above, it accepted the notion of historic rights as something falling short of territorial sovereignty.” Zhiguo Gao and Bing Bing Jia, “The nine-dash line in the South China Sea:
history, status and implications,” AJIL, Vol. 107 （2013）, p. 122.
（9）Award of the South China Sea Arbitration Case, July 12, 2016, http://www.pca-cpa.org, p.
111, para. 261.
jurisdiction over their adjacent waters. China has not officially clarified the legal character of the nine-dash line, but its domestic laws are predicated on the notion that it has historic rights to the waters within the nine-dash line, as discussed below.
In this article, the author will first examine the nature of China’s claims related to the nine-dash line in the South China Sea, and then whether historic rights exist within the waters that it claims within the nine-dash line. Next, the author will examine how the Philippines v. China arbitral tribunal perceived the relationship between historic waters and historic rights.
2．The Nine-Dash Line: Historic Waters or Historic Rights
⑴ The Concept of Historic Waters
As mentioned above, while the UNCLOS uses the terms “historic bay”
and “historic title,” it contains no definition of the term “historic title” itself.（10）
Further, there are no Articles in the Convention that use the terms “historic waters” or “historic rights.”
The topic of historic waters has rarely garnered strong interest in academic circles. That being said, this lack of interest is certainly not because the term “historic waters” already has an established definition in international law. Symmons considers the most famous definition of historic waters to be that of L. J. Bouchez: “Waters over which ［a］ coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises
（10）Satya N. Nandan and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982 A Commentary, Vol. II, （Martinus Nijhoff, 1993）, p. 118, para. 10.5（e）.
（11）L. J. Bouchez, The Regime of Bays in International Law （Leyden, 1964）, p. 281.
（12）Nandan and Rosenne, supra note 10, p. 118, para. 10.5（e）.
（13）Land, Island, and Maritime Frontier Dispute （El Salvador/Honduras: Nicaragua intervening）, ICJ Reports 1992, p. 588, para. 383.
（14）Fisheries Case （United Kingdom v. Norway）, ICJ Reports 1951, p. 130.
sovereign rights with the acquiescence of the community of States.”（11） In this definition, we can see three necessary conditions: （1） a coastal State’s claims over historic waters must be exercised continuously and over a long period; （2） it must exercise effective jurisdiction over the waters concerned; and （3） other States must have acquiesced to that jurisdiction.
Article 10 paragraph 6 of the UNCLOS excludes “historic bays” from its general definition of bays.（12） The Chamber constituted by the ICJ stated that the language of this article “might be found to express general customary law” in its 1992 decision on the Land, Island, and Maritime Frontier Dispute （El Salvador/Honduras: Nicaragua intervening（13））.
In its 1951 Fisheries Case, the ICJ ruled as follows concerning the jurisdiction of Norway’s fisheries:
By “historic waters” are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title. The United Kingdom Government refers to the notion of historic titles both in respect of territorial waters and internal waters, considering such titles, in both cases, as derogations from general international law. In its opinion, Norway can justify the claim that these waters are territorial or internal on the ground that she has exercised the necessary jurisdiction over them for a long period without opposition from other States...（14）
Gilbert Gidel regarded the doctrine of historic waters as an essential
concept for establishing general provisions for the delimitation of maritime borders, writing: “Whatever name is given to it, the theory of ‘historic waters’ is an essential one. It works as one kind of safety valve in the demarcation of maritime areas. Denying it would signify the demise of all possibilities of creating general provisions in this domain of international law.”（15） However, it is likely that Gidel only ever envisioned the case of delimiting territorial sea. Indeed, such a restriction is reflected in the aforementioned proviso to UNCLOS Article 15: “The above provision
［concerning delimitation of territorial sea］ does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.” However, an interpretative problem makes it unclear whether the concept as written is applicable to the delimitation of maritime areas other than territorial waters. Articles 74 and 83 provide that the delimitation of a State’s exclusive economic zone （EEZ） and continental shelf, respectively, “shall be effected by agreement on the basis of international law”: should we interpret this language as accommodating the doctrine of historic waters? Neither EEZ delimitation, newly established by the UNCLOS in 1982, nor continental shelf delimitation, recognized by the 1958 Convention on the Continental Shelf, have given much scope for a State to claim historic waters in practice to date.
In international law, the concept of historic waters has served the role of an explanatory concept for the individual maritime claims of individual States, established in their separate historical contexts, rather than an explicitly defined regime like that of territorial sea. In addition, the concept of historic waters has been used exclusively to characterize internal waters
（15）Gibert Gidel, Le droit international public de la mer, Tome. III, （Établissements Mellottée, 1934）, p. 651.
and territorial waters to date. China does not claim that the maritime area within the nine-dash line is historic waters; rather, it claims historic rights to the area. At the very least, China’s claim does not fit the historical pattern to date that historic waters claims follow; China seems to have adopted its position upon deciding that it was difficult to explain the vast maritime area in the South China Sea established by the nine-dash line, covering 90% of its area, using the concept of historic waters. As mentioned earlier, the UNCLOS makes no reference to “historic rights,” only to “historic title.” Can one then argue that, since the UNCLOS lacks provisions for historic rights, China’s historic rights-based claims concerning the nine- dash line cannot violate them? It is not that simple. For one, the same reasoning could be used to argue that China’s claim lacks legal basis in the UNCLOS. Zou Keyuan takes a different perspective, arguing that China’s claim is one not of historic waters in the traditional sense, but of “historic rights with tempered sovereignty.” This, he continues, is not complete sovereignty, but the sovereign right to exploit natural resources （i.e., living and non-living resources）, and includes the jurisdiction to perform marine scientific research, to establish artificial islands, and to protect the marine environment.（16） In this case, the issue becomes whether a maritime claim of this nature is admissible under current international law.
The Republic of China （R.O.C.; Taiwan） takes yet another position.
Responsible for the initial drawing of the nine-dash line, the R.O.C. claimed the following in its 13 April 1993 Policy Guidelines for the South China Sea.
In light of history, geography, international law, and facts, the islands
（16）Zou Keyuan, “Historic Rights in International Law and in China’s Practice,” OD&IL, Vol. 31
（2001）, p. 160.
in the South China Sea are part of the inherent territory of the Republic of China, to which sovereignty over the islands belongs. The South China Sea area within the historic water limit is the maritime area under the jurisdiction of the Republic of China, where the Republic of China possesses all rights and interests.（17）
In Chinese academic circles, some accounts explain the legal character of the nine-dash line as being a “historic waters line.” However, no unified consensus has been reached on the legal status of the line in Chinese academia.（18） Interpretations can be broadly divided into the following four understandings. The first is that the nine-dash line serves as the line of attribution of the islands therein. All islands within the line and their surrounding waters belong to China; China maintains jurisdiction and control over them. However, the legal status of the waters within the line is unclear: are they internal waters, territorial waters, or an EEZ? The second interpretation holds that the nine-dash line indicates the scope of historic rights. The islands, reefs, shoals, and sandbars within the line are Chinese territory; non-territorial waters fall under its EEZ and continental shelf, and as such the free navigation of foreign vessels and overflight of foreign aircraft are guaranteed. The third considers the nine-dash line to be a historic waters line. China has historic rights to the islands, reefs, shoals, sandbars within the line along with their surrounding waters; all waters within the line are its historic waters, which foreign vessels cannot navigate within or pass through without permission. Needless to say, it would
（17）Lynn Kuok, “Tides of Change: Taiwan’s Evolving Position in the South China Sea,” The Brooking Institution: Center for Far East Asia Policy Studies, May, 2015, p. 6.
（18）For details on these interpretations in Chinese academic circles, cf. Zou Keyuan, “South China Sea Studies in China: Achievements, Constraints and Prospects,” Singapore Year Book of International Law and Contributions, Vol. 11 （2007）, pp. 85⊖98.
significantly impact the free navigation of Japanese and U.S. vessels if China took this position. The fourth interpretation of the nine-dash line is as a traditional border line. The line denotes the border between China and foreign countries; inside the line lies Chinese territory, whereas outside the line lies the territory of neighboring States or the high seas.（19）
Unfortunately, China has consistently taken the position of eschewing any official explanation of the nine-dash line; this position has been called intentional by some.（20） As a result, Chinese maritime claims in the South China Sea continue to be characterized by, in the words of Indonesia, “no clear explanation as to the legal basis, the method of drawing, and the status” of the nine-dash line.（21）
2 China’s Claims to Historic Rights within the Nine-Dash Line In a 2009 Note Verbale to the Secretary General of the United Nations, the Government of the People’s Republic of China asserted the following:
China has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. ［...］ The above position is consistently held by the Chinese Government, and is widely known by the international community. ［...］
（19）Li Guoqiang, “The Frontier Issues between China and its Neighboring Countries ［in Japanese］,” Border Studies ［Kyōkai Kenkyū］, No. 1 （2010）, pp. 51⊖52.
（20）Peter Dutton, “Three Disputes and Three Objectives: China and the South China Sea,”
Naval War College Review, Vol. 63（4）（2011）, p. 45. As Vice-Director General of the China Institute for Marine Affairs, Zhang Haiwen made clear her opinion that China was under no obligation to explain the legal nature or meaning of this maritime area to foreign States. Cf.
Taisaku Ikeshima, “China’s Dashed Line in the South China Sea: Legal Limits and Future Prospects,” Waseda Global Forum, No. 10 （2013）, pp. 32⊖33.
（21）Indonesia, Note Verbale to the Secretary-General of the United Nations, Doc. 480/POL⊖703/
VII/10, 8 July 2010.
［The Joint Submission by Malaysia and Vietnam, and the Submission by Vietnam to the Commission on the Limits of the Continental Shelf have］ seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea.（22）
Submitted as supporting documentation was a map of the nine-dash line, which showed almost the entire maritime area of the South China Sea encompassed by nine broken lines. Florian Dupuy and Pierre-Marie Dupuy pointed out, “the relation between the map and historic rights is unclear and maps do not constitute titles in international law. It is uncertain whether the map has any legal relevance to the delimitation of China’s boundaries in the South China Sea, because China has never provided any explanation as to the meaning of nine-dash line.”（23） In any case, it is nearly impossible to consider this map, which lacks even latitude and longitude coordinates, to be at all effective for delimiting maritime boundaries.（24）
In addition, the expression that China uses—“enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof”—connotes the provisions in Article 56 of UNCLOS, which concern the sovereign rights and jurisdiction of a coastal State in its EEZ. The UNCLOS was concluded in 1982, but 2009, the year of China’s Note Verbale, was arguably the first time that other countries could possibly recognize such an assertion, making unthinkable the Chinese assertion that its position had been “widely known” internationally. Needless to say, the validity of a historical claim must be evaluated internationally: foreign
（22）Note Verbale CML/17/2009 dated 6 May 2009 and CML/18/2009 from the Permanent Mission of the People’s Republic of China.
（23）Florian Dupuy and Pierre-Marie Dupuy, “A Legal Analysis of China’s Historical Rights Claim in the South China Sea,” AJIL, Vol. 107 （2013）, pp. 131⊖132.
（24）Symmons, supra note 1, p. 221.
States must be apprised of any such claim, because they must first know about it in order to be able to object to it.（25）
The roots of the nine-dash line date back to 1 December 1947, when the Government of the R.O.C. promulgated two documents created by the Ministry of the Interior: The Cross Reference Table of the New and Old Names of the South China Sea Islands and The Location Map of the South China Sea Islands. These documents depicted an eleven-part, U-shaped line that encompassed the Spratly Islands and the Paracel Islands.
In 1949, the People’s Republic of China issued the map as an official document. Signed on 8 September 1951, The Treaty of Peace with Japan states in Article 2（f） that “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.” Preceding this, then-Premier Zhou Enlai stated on 15 August of the same year:
The draft ［treaty］ has once again purposely stipulated that Japan relinquishes all rights to the Nanwei ［Spratly］ Island and Xisha
［Paracel］ Islands and will refrain from bringing up the issue of restituting sovereignty. In reality, the Nanwei Island and the Xisha Islands, just like the entirety of the Nansha ［Spratly］ Islands, Zhongsha Islands ［Macclesfield Bank］, and Dongsha ［Pratas］ Islands, have always been Chinese territory...（26）
Given the name of the map—The Location Map of the South China Sea Islands—and this statement by the Chinese government, the essence of the nine-dash line when it was drawn seems different from that implied by the
（25）Ibid., p. 230.
（26）Zhou Enlai’s Statement on the Draft Peace Treaty with Japan and the San Francisco Conference, 15 August 1951.
P.R.C.’s 2009 Note Verbale. It seems reasonable to assume that, at least at this time, China was considering the line to indicate a claim for the attribution of territory discussed above.（27）
This line was redrawn when territorial rights to the Bach Long Vi Island in the Gulf of Tonkin were transferred from the P.R.C. to Vietnam in 1953, changing the eleven-dash line to a nine-dash line. This is the line that has since come to be known as the “nine-dash line.”（28） In the P.R.C.’s Law on the Territorial Sea and the Contiguous Zone（1992）, Article 2 paragraph 2 stipulates that “［t］he land territory of the People’s Republic of China includes the mainland and its offshore islands, Taiwan and the various affiliated islands including Diaoyu Island, Penghu Islands, Dongsha Islands, Xisha Islands, Nansha （Spratly） Islands and other islands that belong to the People's Republic of China.” Interestingly, prior to enacting this 1992 law, the P.R.C. had promulgated its Declaration of the Government of the People’s Republic of China on China’s Territorial Sea on 4 September 1958. The most notable characteristic of this declaration is the lack of any reference to the nine-dash line that the P.R.C. claims today. It states simply:
The Government of the People’s Republic of China declares:
1．The breadth of the territorial sea of the People’s Republic of China shall be twelve nautical miles. This provision applies to all
（27）Symmons, supra note 1, p. 233.
（28）Some Chinese researchers have expressed their opinions as follows: “Upon the declaration of the nine-dotted line, the international community at no time expressed dissent. None of the adjacent states presented a diplomatic protest. This silence in the face of a public declaration may be said to amount to acquiescence, and it can be asserted that the dotted line has been recognized for half a century.” Li Jinming and L. Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note,” OD&IL, Vol. 34 （2003）, p. 290. However, adjacent States needed to have known the details of this alleged ‘declaration,’ as a precondition for them to have protested. The issue then becomes, how widespread was the public knowledge of this alleged ‘declaration’?
territories of the People’s Republic of China, including the Chinese mainland and its coastal islands, as well as Taiwan and its surrounding islands, the Penghu Islands, the Dongsha Islands, the Xisha Islands, the Zhongsha Islands, the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.
Despite explicitly mentioning the various islands in the South China Sea over which China claimed “indisputable sovereignty,” the declaration lacks mentions or reservations to the waters within the nine-dash line, in any form.（29） Where provisions that recognize the waters within the nine-dash line do appear in Chinese domestic law is in 1998’s Law on the Exclusive Economic Zone and the Continental Shelf: “The provisions in this Law shall not affect the rights that the People's Republic of China has been enjoying ever since the days of the past” （Article 14）. This language is used to imply the existence of historic rights pursuant to the nine-dash line, as distinct from a 200-nautical-mile EEZ. Furthermore, Article 2 of China’s 1999 Marine Environment Protection Law appears cognizant of the nine-dash line: “This Law shall apply to the internal waters, territorial seas, contiguous zones, exclusive economic zones and continental shelves of the People's Republic of China and all other sea areas under the jurisdiction of the People's Republic of China.”（30）
In its 5 April 2011 Note Verbale, the Philippines objected to China’s claims.
（29）Ibid., p. 201.
（30）Keyuan Zou, “Historic Rights in the South China Sea,” Wu, Valencia and Hong （eds.）, supra note 3, pp. 245⊖246.
The Kalayaan Island Group （KIG） constitutes an integral part of the Philippines. ［...］［T］he Philippines...exercises sovereignty and jurisdiction over the waters around or adjacent to...the KIG as provided for under the United Nations Convention on the Law of the Sea
（UNCLOS）. ［...］［T］he claim as well by the People’s Republic of China on the “relevant waters as well as the seabed and subsoil thereof”...in the KIG and their “adjacent waters” would have not basis under international law, specifically the UNCLOS.（31）
In a Note Verbale to the UN Secretary General dated 11 April 2011, China made its rebuttal.
The so-called Kalayaan Island Group （KIG） claimed by the Philippines is in fact part of China’s Nansha Islands. ［...］ In addition, under the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, as well as in the Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone （1992）...China’s Nansha Islands is fully entitled to the Territorial Sea, Exclusive Economic Zone （EEZ） and Continental Shelf.（32）
With regard to this exchange between China and the Philippines, Vietnam issued their own Note Verbale on 3 May 2011, objecting to China’s remarks:
“Hoang Sa （Paracel） and Truong Sa （Spratly） Archipelagoes are integral parts of Vietnamese territory. Viet Nam has sufficient historic evidences and
（31）Philippine Mission to the United Nations, letter to the Secretary-General of the United Nations, 11⊖00494, No. 000228, New York, 5 April 2011.
（32）Note Verbale CML/8/2011 dated 4 April 2011 from the Permanent Mission of the People’s Republic of China.
legal foundation to assert her sovereignty over these two archipelagoes.”（33）
Indonesia also issued a Note Verbale to the UN Secretary General on 8 July 2010, criticizing China: “［T］he so called ‘nine-dotted-lines map’...clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.”（34）
China’s Foreign Ministry released its 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 on 7 December 2014 （hereinafter, simply “Position Paper”）. In this document, which will be discussed in more detail below, the Foreign Ministry states that “Chinese activities in the South China Sea date back to over 2,000 years ago. China was the first country to discover, name, explore and exploit the resources of the South China Sea Islands and the first to continuously exercise sovereign powers over them.”（35） The Chinese Government interprets the nine-dash line as demarcating China’s historic rights, a concept outside the scope of the UNCLOS’s applicability. China develops the argument that, except for Article 10 paragraph 6 and Article 15, the UNCLOS lacks provisions that could pertain to historic rights, and so the Convention cannot be applied to resolve matters related to the nine- dash line. According to Zhiguo Gao, the Chinese judge on the International Tribunal for the Law of the Sea （ITLOS）, and Bing Bing Jia, Professor of Tsinghua University, the term Nan Hai （Southern Sea） and referring to the South China Sea, appeared in the Shi Jing （The Classic of Poetry）, a publication of the Spring and Autumn Period （475⊖221 BC）. Thereafter as
（33）Note Verbale 77/HC⊖2011 dated 3 May 2011 from the Government of the Socialist Republic of Vietnam.
（34）Indonesia, supra note 21.
（35）Position Paper on 7 December, 2014, para. 4.
well, the sea was well known as a trade route used by Zheng He in his expeditionary voyages in the Ming dynasty （1405⊖1433 AD）, and as a site of fishing-industry activities.（36） Nong Hong, Director of the Research Center for Ocean Law & Policy, National Institute for South China Sea Studies, writes that Chinese vessels dominated trade in the South China Sea from the 12th to mid-15th century.（37）
At the same time, China rejects the application of the UNCLOS ex post facto. The Convention came into force in 1994; forty-seven years had already elapsed since the R.O.C. Government’s official promulgation in 1947. The claim that the nine-dash line does not conform to the UNCLOS, China argues, clearly lacks grounds in international law, the reason being that one “cannot determine the legality of past actions ［i.e., the nine-dash line］ using laws from succeeding eras ［i.e., UNCLOS］（38）.”
However, it is obvious that China’s logic in this case does not hold water.
Consider, for example, what would happen if a certain State had once established territorial sea extending 100 nautical miles from the coast, but could maintain those 100 nautical miles territorial waters even after 1994, when the UNCLOS established territorial sea as extending 12 nautical miles from the coast. UNCLOS would lose its raison d’etre as a code of conduct to be followed by all States. The issue now at hand is: Do the “historic rights” of which China speaks refer to traditional fishing rights, or rights to natural resources besides fisheries? Or, perhaps, are they synonymous with
“historic waters”?
（36）Gao and Jia, supra note 8, pp. 100⊖101.
（37）Nong Hong, UNCLOS and Ocean Dispute Settlement - Law and Politics in the South China Sea, （Routledge, 2012）, p. 6.
（38）Remarks of Yi Xianliang, Chinese official in the Department of Border and Ocean Affairs of China’s Ministry of Foreign Affairs. Interview with China news, 6 January 2012.
3 Necessary Conditions for Establishing the “Historic Waters”
Status
In 1962, the United Nations Secretariat published the Judicial Regime of Historic Waters, including Historic Bays（39）. This study established the following elements for claiming title to “historic waters”: （1） Exercise of authority over the waters claimed （taking into account （a） scope of the authority exercised, （b） acts by which the authority is exercised under that scope, and （c） effectiveness of the authority exercised）; （2） continuity of the exercise of authority （i.e., “usage”）; and （3） attitude of foreign States.
Decisions must also consider the questions of （4） the vital interests of the coastal State in the maritime area claimed, and of （5） “historic waters,” the coasts of which belong to two or more States.（40）
Regarding Element （1）, the exercise of authority, the study holds that if a State is to claim sovereignty over a maritime area, it is sovereignty that must be exercised by that State （para. 85）. Gidel writes that “the exclusion from these areas of foreign vessels or their subjection to rules imposed by the coastal State which exceeds the normal scope of regulations made in the interests of navigation” serves as evidence of a State expressing its sovereign intentions over an area; however, he continues, these are not the only acts that could serve as evidence （para. 89）（41）. Maurice Bourquin opines:
“Sovereignty must be effectively exercised; the intent of the State must be expressed by deeds and not merely by proclamations” （para. 98）（42）. China’s claims surrounding the nine-dash line are problematic with respect to this
（39）U.N. Secretariat, Judicial Regime of Historic Waters, including Historic Bays, Document A/
CN.4/143, Yearbook of the International Law Commission 1962, Vol. II, pp. 1⊖26.
（40）Ibid., pp. 13⊖20.
（41）Gidel, supra note 15, p. 633.
（42）Maurice Bourquin, “Les baies historiques” in Mélanges Georges Sauser-Hall, 1952, Publication des Facultés de Droit de Genève et de Neuchâtel, p. 43.
element.
The study regards the passage of time as an important aspect of Element
（2）, usage, holding that a State must continuously exercise sovereignty over a maritime area for a considerable period of time （para. 103）.
Regarding Element （3）, the attitudes of foreign States, some scholars assert that the acquiescence of other States is required in order to establish historic title, while others argue that the absence of opposition by these States is sufficient.（43） This element is fraught with serious problems. Can a historic title be generated by a State’s unilateral acts, merely because they are continuous? Looking from a different angle, is it impossible for a State to completely establish historic title through usage, if that usage is not recognized by other States? In other words, in order for certain waters to be historic waters, is the positive fact of recognition necessary, or does the negative fact of incontesté suffice?（44） In its 1951 Fisheries case, the ICJ used the term “toleration” in discussing Norway’s historic title, stating that the
“general toleration of foreign States with regard to the Norwegian practice is an unchallenged fact” （para. 111）（45）.
In discussing Element （4）, the vital interests of the coastal State, the UN Secretariat referenced the opinion, held by some scholars and governments, that determining whether a coastal State has title to historic waters can depend not only on long-term usage, but also on other “particular circumstances” of the State concerned, e.g., geological configuration, self- defense requirements, or other vital interests （para. 134）. However, the UN Secretariat viewed this requirement in a negative light, citing an opinion
（43）YBIL 1962, Vol. II, supra note 39, p. 13, para. 80.
（44）Charles Rousseau argued that both conditions—continuous usage and incontesté—were necessary to affirm a historic title.” C. Rousseau, Droit International Public, （Recueil Sirey, 1953）, p. 441.
（45）ICJ Reports 1951, p. 138.
that historic title is unjustified if the historic element is completely absent.
Moreover, the text continues, it makes sense to reserve the position of
“historic bays” in the Geneva Convention on the Territorial Sea, but giving the States concerned the right to claim a “vital bay” runs the risk of destroying the usefulness of provisions in the Convention regarding the definition or delimitation of bays （para 140）.
The UN Secretariat considered there to be “fairly general agreement”（46） on the three requirements described above （i.e., exercise of authority over the maritime area claimed as historic waters; continuity of exercising that authority; and attitudes of foreign States）（47）. Moreover, they commented that in the Fisheries case （1951）, both disputing States “agreed that the onus of proof was on the State claiming a historic title, although they disagreed regarding the conditions and nature of the proof.”（48） With all this in mind, is it true that China has sufficiently demonstrated evidence of historic title, whether to historic waters or historic rights?
With regard to the nine-dash line, China’s exercise of jurisdiction within the nine-dash line has become especially apparent recently. However, one feels obliged to remark that these activities were begun too recently for China to claim the maritime area concerned as historic waters. In addition, China’s activities have run into protests from the States most affected by it, as we can see in the Notes Verbale of the Philippines, Vietnam, and Indonesia discussed earlier.（49） In that sense, China arguably has not satisfied
（46）YBIL 1962, Vol. II, supra note 63, p. 13, para. 80.
（47）R. Churchill and V. Lowe evaluated the ICJ as having implicitly accepted these three criteria in reviewing its Judgment in the Land, Island, and Maritime Frontier Dispute case. R. R.
Churchill and A. V. Lowe, The Law of the Sea. 3rd ed., （Manchester University Press, 1999）, p. 44.
（48）YBIL 1962, Vol. II, supra note 39, p. 21, para. 152.
（49）Symmons, supra note 1, p. 232.
the necessary requirements for the maritime area within the nine-dash line to be conferred “historic waters” status. To begin with, neighboring States would not silently acquiesce to Chinese claims of historic waters or historic rights in the expansive maritime area enclosed by the nine-dash line; those who believe so are being unrealistic.（50） Seemingly to contest that very assertion, the Philippines v. China arbitration was initiated in 2013.
3．Rulings of the South China Sea Arbitral Tribunal
⑴ Initiation of Arbitration
On 22 January 2013, the Philippines institute arbitral proceedings against China under Annex VII of UNCLOS in respect of their maritime jurisdictional dispute in the South China Sea, pursuant to the compulsory proceedings for dispute settlement provided for in Part XV of the Convention. On 26 April of the same year, the ITLOS appointed five judges to the tribunal: Thomas A. Mensah, Jean-Pierre Cot, Stanislaw Pawlak, Alfred J. A. Soons, and Rüdiger Wolfrum, with Mensah serving as President.
China was supposed to designate one arbitrator, but because it refused to cooperate with arbitration proceedings, the appointments fell to Yanai Shunji, then-president of ITLOS, pursuant to Annex VII Article 3. After losing the case, China would criticize the appointments as a kind of government conspiracy; however, Shunji’s role in making them was simply a result of the relevant provisions in Article 3.
Prior to this case, China had lodged a declaration with the UN Secretary- General on 25 August 2006, which essentially stated that China exempts itself from the compulsory procedures for dispute settlement provided for in paragraph 1（a）, （b）, and （c） of Article 298 of the Convention.（51） As a
（50）Ibid, p. 208.
result, the path was closed off to use the arbitration proceedings set forth in Annex VII to settle “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles,” （Article 298 para. 1（a）（i）） and “disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service” （para. 1（b））. In order to circumvent these jurisdictional restrictions, the Philippines constructed its argument to accuse China of claiming sovereign rights and jurisdiction over the entire maritime area within the nine-dash line.
Sovereign rights and jurisdiction, the Philippines asserted, can only be claimed for waters within a certain distance from the mainland or islands.
Among the geographical features under China’s effective control, the Spratly Islands are actually reefs and low-tide elevations, and as such cannot confer entitlement to a territorial sea, EEZ, or continental shelf;
moreover, Scarborough Shoal and similar features are actually “［r］ocks which cannot sustain human habitation or economic life of their own”
（Article 121 para. 3）, and as such can only confer entitlement to a territorial sea. The Philippines requested the Arbitral Tribunal to declare, on these grounds, that China’s maritime claims based on the nine-dash line were in violation of the UNCLOS. In short, the Philippines posed the dispute over the interpretation and scope of the UNCLOS as an entitlement dispute.（52）
Rather than as a territorial dispute or a maritime delimitation dispute, they chose to formulate the matter as an entitlement dispute that contested whether certain geographical features were islands, which under the
（51）http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm, p. 19.
（52）China and Korea have argued that Japan’s Oki-No-Tori-Shima （a.k.a. the Okinotori Islands）
are “rocks” under UNCLOS Article 121 para. 3. Due to its strict interpretations of the “human habitation” and “economic life of their own” requirements of this paragraph, the Philippines v. China ruling may have an effect on their legal status.
UNCLOS entitle the sovereign State to an EEZ and continental shelf, or rocks, which do not （Article 121 para. 3）. The Philippines adopted this strategy not only because initiating arbitration as a territorial dispute was impossible （i.e., as the UNCLOS contains no provisions related to territorial sovereignty）, but also because China had taken the optional exception to decline the arbitration of disputes related to sea boundary delimitations
（Article 298 para.1（a）（i）） .
Needless to say, for a geographical feature to have a territorial sea, contiguous zone, EEZ, and continental shelf, that feature must be an island.
The UNCLOS defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide” （Article 121 para.
1）. Furthermore, it provides for low-tide elevations in Article 13, defining the feature as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide” （para 1）, and stipulating that “［w］here a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island ［i.e. 12 nautical miles］, it has no territorial sea of its own” （para.
2）. Thus, the Philippines requested the Tribunal to determine “whether, under Article 121 of UNCLOS, certain of the maritime features claimed by both China and the Philippines are islands, low tide elevations or submerged banks, and whether they are capable of generating entitlement to maritime zones greater than 12 nautical mailes.”（53）
Following some amendments to its claims as written in its Notification and Statement of Claim, the Memorial of the Philippines was filed to the Arbitral Tribunal on 30 March 2014. In it, the Philippines enumerated fifteen Submissions:
（53）Republic of Philippines, Department of Foreign Affairs, Notification and Statement of Claim, Manila, 22 January 2013, Notification and Statement of Claim, pp. 2⊖3, para. 6.
1．China’s maritime entitlements in the South China Sea... may not extend beyond those permitted by the United Nations Convention on the Law of the Sea...;
2．China’s claims to sovereign rights and 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 effec t to the extent that they exceed...China’s maritime entitlements under 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...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...
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 and Second Thomas Shoal;
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．...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; and （c） endangering the health and well-being of Philippine personnel stationed at Second Thomas Shoal; and
15．China shall desist from further unlawful claims and activities.（54）
In its original Notification and Statement of Claim, the Philippines claimed that the nine-dash line was contrary to UNCLOS, and sought tribunal arbitration stating the following:
（54）Memorial of the Philippines, 30 March 2014, pp. 271⊖272
Despite China’s adherence to UNCLOS in June 1996, and the requirement of Article 300 that States Parties fulfill in good faith their obligations under the Convention, China has asserted a claim to
“sovereignty” and “sovereign rights” over a vast maritime area lying within a so-called “nine dash line” that encompasses virtually the entire South China Sea. By claiming all of the waters and seabed within the
“nine dash line”, China has extended its self-proclaimed maritime jurisdiction to within 50 nautical miles off the coasts of the Philippine Islands of Luzon and Palawan, and has interfered with the exercise by the Philippines of its rights under the Convention, including within its own exclusive economic zone and continental shelf.（55）
Further, within the maritime area encompassed by the “nine dash line”, China has laid claim to, occupied and built structures on certain submerged banks, reefs and low tide elevations that do not qualify as islands under the Convention, but are parts of the Philippines’
continental shelf, or the international seabed... （56）
...China’s claims based on its “nine dash line” are inconsistent with the Convention and therefore invalid.（57）
Note that unlike islands, low-tide elevations are not subject to
“occupation.” This precedent was established in several ICJ cases:
Maritime Delimitation and Territorial Questions between Qatar and Bahrain （2001）（58）, Sovereignty over Pedra Branca/Paulau Batu Puteh,
（55）Ibid., p. 1, para. 4.
（56）Ibid., pp. 1⊖2, para. 3.
（57）Ibid., p. 2, para. 6.
（58）Maritime Delimitation and Territorial Questions between Qatar and Bahrain （Qatar v.
Middle Rocks and South Ledge（2008）（59）, and Territorial and Maritime Dispute（2012）（60）.
China took absentee tactics in response, neither sending representatives to attend the Arbitral Tribunal, nor submitting preliminary objections contesting the jurisdiction （of the Tribunal） or a Counter-Memorial to the Merits, nor participating in oral proceedings. Outside of court, on the other hand, it showed a contentious attitude. In the aforementioned Position Paper, the Chinese Foreign Ministry disputed the Tribunal’s jurisdiction:
China has indisputable sovereignty over the South China Sea Islands
（the Dongsha Islands, the Xisha Islands, the Zhongsha Islands and the Nansha Islands） and the adjacent waters. Chinese activities in the South China Sea date back to over 2,000 years ago. China was the first country to discover, name, explore and exploit the resources of the South China Sea Islands and the first to continuously exercise sovereign powers over them.（61）
The subject-matter of the Philippines’ claims is in essence one of 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.
Bahrain）, ICJ Reports 2001, paras. 206⊖208.
（59）Sovereignty over Pedra Branca/Paulau Batu Puteh, Middle Rocks and South Ledge
（Malasia/Singapore）, ICJ Reports 2008, paras. 291⊖299.
（60）Territorial and Maritime Dispute （Nicaragua v. Columbia）, ICJ Reports 2012, para.
26.
（61）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, 7 December 2014, para. 4. http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/
t1217147.shtml.
Consequently, the Arbitral Tribunal has no jurisdiction over the claims of the Philippines for arbitration.（62）
The Position Paper continued by countering the Philippines’ second set of claims.
...China believes that the nature and maritime entitlements of certain maritime features in the South China Sea cannot be considered in isolation from the issue of sovereignty. In the first place, without determining the sovereignty over a maritime feature, it is impossible to decide whether maritime claims based on that feature are consistent with the Convention.（63）
Secondly, in respect of the Nansha Islands, the Philippines selects only a few features and requests the Arbitral Tribunal to decide on their maritime entitlements. This is in essence an attempt at denying China's sovereignty over the Nansha Islands as a whole.（64）
Finally, whether or not low-tide elevations can be appropriated is plainly a question of territorial sovereignty.（65）
The Position Paper added:
It should be particularly emphasized that China always respects the freedom of navigation and overflight enjoyed by all States in the South
（62）Ibid., para. 9.
（63）Ibid., para. 15⊖16.
（64）Ibid., para. 19.
（65）Ibid., para. 23.
China Sea in accordance with international law.（66）
In addition, China referenced the regimes for negotiations already in operation:
［W］ith regard to disputes concerning territorial sovereignty and maritime rights, China has always maintained that they should be peacefully resolved through negotiations between the countries directly concerned. In the present case, there has been a long-standing agreement between China and the Philippines on resolving their disputes in the South China Sea through friendly consultations and negotiations.（67）
Under the Joint Statement between the People’s Republic of China and the Republic of the Philippines concerning Consultations on the South China Sea and on Other Areas of Cooperation, issued on 10 August 1995, both sides “agreed to abide by” the principles that “［d］
isputes shall be settled in a peaceful and friendly manner through consultations on the basis of equality and mutual respect.”（68）
Furthermore, in an 8 June 2016 statement on settling disputes between China and the Philippines in the South China Sea, China’s Foreign Ministry argued that the unilateral initiation of arbitration by the Philippines constituted a serious breach of faith, criticizing their actions in spite of, in the 2002 Declaration on the Conduct of Parties in the South China Sea,
（66）Ibid., para. 28.
（67）Ibid., para. 30.
（68）Ibid., para. 31.
pledging to “resolve their territorial and jurisdictional disputes by peaceful means...through friendly consultations and negotiations by sovereign States directly concerned,” and, in the 1 September 2011 China–Philippines Joint Statement, recommitting to resolving related disputes through negotiations. Given the clear decision of both parties to opt for resolving disputes between themselves through negotiations, the statement continued that the Philippines’ unilateral initiation was contrary to the provisions of Article 280 and 281 in UNCLOS:
Nothing in this Part ［i.e., Settlement of Disputes］ impairs the right of any States Parties to agree at any time to settle a dispute between them concerning the interpretation or application of this Convention by any peaceful means of their own choice （Article 280）.
If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure （Article 281）（69）.
China also argued that the Philippines had violated its obligation to exchange views as stipulated in Article 283 of UNCLOS. The Position Paper concluded by asserting that “the Arbitral Tribunal manifestly has no jurisdiction over this arbitration, unilaterally initiated by the Philippines, with regard to disputes between China and the Philippines in the South
（69）Ibid., para. 43.
China Sea,”（70） adding that “the unilateral initiation of the present arbitration by the Philippines will not change the history and fact of China's sovereignty over the South China Sea Islands and the adjacent waters.”（71）
2 Award on Jurisdiction
After considering the Philippines’ fifteen Submissions above, the five Tribunal arbitrators unanimously agreed on the following findings in their 29 October 2015 Award on Jurisdiction and Admissibility.
A．The Tribunal was properly constituted in accordance with Annex VII to the Convention;
B．China’s non-attendance in these proceedings does not deprive the Tribunal of jurisdiction;
C．The Philippines’ act of initiating this arbitration did not constitute an abuse of process;
D．There exists no indispensable third party whose absence deprives the Tribunal of jurisdiction;
E．The 2002 China–ASEAN Declaration on Conduct of the Parties in the South China Sea, the joint statements of the Parties referred to in paragraphs 231 to 232 of this Award, the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological Diversity, do not preclude, under Articles 281 or 282 of the Convention, recourse to the compulsory dispute settlement procedures available under Section 2 of Part XV of the Convention.
F．The Parties have exchanged views as required by Article 283 of the Convention.
（70）Ibid., para. 86.
（71）Ibid., para. 93.
G．The Tribunal has jurisdiction to consider the Philippines’ Submissions No. 3, 4, 6, 7, 10, 11, and 13, subject to the conditions noted in paragraphs 400, 401, 403, 404, 407, 408, and 410 of this Award.
H．A determination of whether the Tribunal has jurisdiction to consider the Philippines’ Submissions No. 1, 2, 5, 8, 9, 12, and 14 would involve consideration of issues that do not possess an exclusively preliminary character, and accordingly reserves consideration of its jurisdiction to rule on Submissions No. 1, 2, 5, 8, 9, 12, and 14 to the merits phase.
I．The Philippines ［is directed］ to clarify the content and narrow the scope of its Submission 15 and reserves consideration of its jurisdiction over Submission No. 15 to the merits phase, and
J．［The Tribunal reserves］ for further consideration and directions all issues not decided in the Award.（72）
To summarize its findings concerning its jurisdiction to arbitrate this case, the Arbitral Tribunal ruled that since both China and the Philippines are State Parties to the UNCLOS, and are bound by the dispute-settlement procedures provided for therein, China’s decision not to participate in judicial proceedings did not deprive the Tribunal of its jurisdiction, and the Philippines’ decision to unilaterally initiate proceedings via an arbitral tribunal was not an abuse of the dispute-settlement procedures concerned.
The Position Paper released by the Chinese Foreign Ministry in December 2014 had rejected the jurisdiction of the arbitral tribunal, saying that the dispute exceeded its jurisdiction because it was in fact a territorial dispute concerning the various islands in the South China Sea. After considering the Philippines’ claims, the Tribunal rejected this argument.
（72）Award on Jurisdiction and Admissibility, 29 October 2015, p. 149, para. 413.
In oral proceedings, the Philippines argued that the fact that “resolution of delimitation issues may require the prior resolution of entitlement issues does not mean that entitlement issues are an integral part of the delimitation process itself.”（73） Professor Bernard H. Oxman, who served as counsel for the Philippines in oral proceedings, reinforced this claim by introducing a Chinese claim about Japan’s Oki-No-Tori-Shima for comparison:
China maintained that Japan is not entitled to a continental shelf in respect of Oki-No-Tori-Shima because that feature, China asserted, is
“in its natural conditions” a rock within the meaning of Article 121（3）
of the Convention. ［...］ ...China’s coast is very far from Oki-No-Tori- Shima. No question of delimitation with China was implicated. Rather, as China expressly observed, application of Article 121（3） of the Convention... “relates to the overall interests of the international community, and is an important legal issue of general nature” that impacts “the maintenance of an equal and reasonable order for the oceans”. In this way...China recognises the fundamental distinction between an entitlement on the one hand, and delimitation on the other.（74）
The Tribunal reached the following conclusion with regard to the Philippines’ assertion:
A dispute concerning the existence of an entitlement to maritime zones is distinct from a dispute concerning the delimitation of those zones in an area where the entitlements of parties overlap. ［...］ A
（73）Hearing on Jurisdiction and Admissibility, Day 2 （8 July 2015）, p. 46.
（74）Ibid., pp. 41⊖42.
maritime boundary may be delimited only between States with opposite or adjacent coasts and overlapping entitlements. In contrast, a dispute over claimed entitlements may exist even without overlap, where—for instance—a State claims maritime zones in an area understood by other States to form part of the high seas or the Area for the purposes of the Convention.（75）
The Tribunal thus rejected China’s assertion from its 2006 declaration invoking optional exception to arbitration under Article 298 of UNCLOS, i.e., that the dispute between the Parties was a maritime delimitation dispute, and as such the tribunal lacked jurisdiction over it. On the contrary, the Tribunal determined that each of the Submissions filed by the Philippines indeed reflected a dispute between the two Parties concerning the interpretation and application of the UNCLOS.
The Arbitral Tribunal also considered the conditions necessary for its exercise of jurisdiction as provided for in the UNCLOS. China’s Position Paper had said that the consensus had been reached in the 2002 China–
ASEAN Declaration of Conduct that disputes in the South China Sea would be resolved exclusively through negotiation. The Tribunal rejected this argument, saying that this Declaration was a political agreement not intended to be legally binding; the fact that provisions of UNCLOS give priority to dispute settlement that both parties had agreed on was irrelevant to this arbitration’s legitimacy. The Tribunal simultaneously ruled that joint statements and other agreements between China and the Philippines did not preclude the Philippines from requesting a settlement of disputes with China via the UNCLOS. It went on to state that the Philippines had satisfied
（75）Award, supra note 72, p. 61, para. 156.
