For ease of reference, and without prejudice to any State's claims, the Tribunal uses throughout this Award the common English designation for the following geographic features, the Filipino translations for which come from the Philippine National Mapping and Resource Information Agency, Philippine Coast Pilot (6th ed., 1995) (Annex 230) and the Philippines' Submissions, and the Chinese translations for which come from the Navigation Guarantee Department of the Chinese Navy Headquarters, China Sailing Directions: South China Sea (A103) (2011) (Annex 232(bis)).

As discussed at paragraph 482 below, the name of a feature as an bank, cay, island, reef, or shoal has no bearing on the Tribunal's determination of the status of those features under the Convention.

(a) interfering with the exercise of the Philippines' rights under the Convention, including with respect to fishing, oil exploration, navigation, and the construction of artificial islands and installations;

(b) failing to protect and preserve the marine environment by tolerating and actively supporting Chinese fishermen in the harvesting of endangered species and the use of harmful fishing methods that damage the fragile coral reef ecosystem in the South China Sea; and

(c) inflicting severe harm on the marine environment by constructing artificial islands and engaging in extensive land reclamation at seven reefs in the Spratly Islands.

(a) China's interference with the Philippines' sovereign rights over non-living and living resources (the Philippines' Submission No. 8);

(b) China's failure to prevent exploitation of the Philippines' living resources by Chinese fishing vessels (the Philippines' Submission No. 9);

(c) China's interference with the traditional fishing activities of Philippine fishermen at Scarborough Shoal (the Philippines' Submission No. 10);

(d) China's failure to protect and preserve the marine environment through (a) its tolerance and active support of Chinese fishing vessels harvesting endangered species and engaging in harmful fishing methods; and (b) its extensive land reclamation, artificial island-building, and construction activities at seven coral reefs in the Spratly Islands (the Philippines' Submissions No. 11 and 12(b));

(e) China's construction of artificial islands, installations, and structures at Mischief Reef without the Philippines' authorisation (the Philippines' Submissions No. 12(a) and 12(c)); and

(f) China's operation of its law enforcement vessels in such a way as to create serious risk of collision and danger to Philippine vessels in the vicinity of Scarborough Shoal during two incidents in April and May 2012 (the Philippines' Submission No. 13).

(1) declares that the Parties' respective rights and obligations in regard to the waters, seabed and maritime features of the South China Sea are governed by UNCLOS, and that China's claims based on its "nine dash line" are inconsistent with the Convention and therefore invalid;

(2) determines 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 M; and

(3) enables the Philippines to exercise and enjoy the rights within and beyond its exclusive economic zone and continental shelf that are established in the Convention.³

The Philippines stressed that it:

does not seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both of them. Nor does it request a delimitation of any maritime boundaries. The Philippines is conscious of China's Declaration of 25 August 2006 under Article 298 of UNCLOS, and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.⁴

After seeking the views of the Parties, the Arbitral Tribunal may appoint one or more independent experts. That expert may be called upon to report on specific issues and in the manner to be determined by the Arbitral Tribunal. A copy of the expert's terms of reference, established by the Arbitral Tribunal, shall be communicated to the Parties.

A. FINDS that the Tribunal was properly constituted in accordance with Annex VII to the Convention.

B. FINDS that China's non-appearance in these proceedings does not deprive the Tribunal of jurisdiction.

C. FINDS that the Philippines' act of initiating this arbitration did not constitute an abuse of process.

D. FINDS that there is no indispensable third party whose absence deprives the Tribunal of jurisdiction.

E. FINDS that 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. FINDS that the Parties have exchanged views as required by Article 283 of the Convention.

G. FINDS that 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. FINDS that 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. DIRECTS the Philippines 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.

J. RESERVES for further consideration and directions all issues not decided in this Award.¹¹

The award rendered on 29 October 2015 by the Arbitral Tribunal established at the request of the Republic of the Philippines (hereinafter referred to as the "Arbitral Tribunal") on jurisdiction and admissibility of the South China Sea arbitration is null and void, and has no binding effect on China.

I. China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. China's sovereignty and relevant rights in the South China Sea, formed in the long historical course, are upheld by successive Chinese governments, reaffirmed by China's domestic laws on many occasions, and protected under international law including the United Nations Convention on the Law of the Sea (UNCLOS). With regard to the issues of territorial sovereignty and maritime rights and interests, China will not accept any solution imposed on it or any unilateral resort to a third-party dispute settlement.

II. The Philippines' unilateral initiation and obstinate pushing forward of the South China Sea arbitration by abusing the compulsory procedures for dispute settlement under the UNCLOS is a political provocation under the cloak of law. It is in essence not an effort to settle disputes but an attempt to negate China's territorial sovereignty and maritime rights and interests in the South China Sea. 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, which was released by the Chinese Ministry of Foreign Affairs on 7 December 2014 upon authorization, the Chinese government pointed out that the Arbitral Tribunal manifestly has no jurisdiction over the arbitration initiated by the Philippines, and elaborated on the legal grounds for China's non-acceptance of and non-participation in the arbitration. This position is clear and explicit, and will not change.

III. As a sovereign state and a State Party to the UNCLOS, China is entitled to choose the means and procedures of dispute settlement of its own will. China has all along been committed to resolving disputes with its neighbors over territory and maritime jurisdiction through negotiations and consultations. Since the 1990s, China and the Philippines have repeatedly reaffirmed in bilateral documents that they shall resolve relevant disputes through negotiations and consultations. The Declaration on the Conduct of Parties in the South China Sea (DOC) explicitly states that the sovereign states directly concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means through friendly consultations and negotiations. All these documents demonstrate that China and the Philippines have chosen, long time ago, to settle their disputes in the South China Sea through negotiations and consultations. The breach of this consensus by the Philippines damages the basis of mutual trust between states.

IV. Disregarding that the essence of this arbitration case is territorial sovereignty and maritime delimitation and related matters, maliciously evading the declaration on optional exceptions made by China in 2006 under Article 298 of the UNCLOS, and negating the consensus between China and the Philippines on resolving relevant disputes through negotiations and consultations, the Philippines and the Arbitral Tribunal have abused relevant procedures and obstinately forced ahead with the arbitration, and as a result, have severely violated the legitimate rights that China enjoys as a State Party to the UNCLOS, completely deviated from the purposes and objectives of the UNCLOS, and eroded the integrity and authority of the UNCLOS. As a State Party to the UNCLOS, China firmly opposes the acts of abusing the compulsory procedures for dispute settlement under the UNCLOS, and calls upon all parties concerned to work together to safeguard the integrity and authority of the UNCLOS.

V. The Philippines' attempt to negate China's territorial sovereignty and maritime rights and interests in the South China Sea through arbitral proceeding will lead to nothing. China urges the Philippines to honor its own commitments, respect China's rights under international law, change its course and return to the right track of resolving relevant disputes in the South China Sea through negotiations and consultations.¹²

Arbitral Tribunal

Judge Thomas A. Mensah (Presiding)

Judge Jean-Pierre Cot Judge Stanislaw Pawlak Professor Alfred H.A. Soons Judge Rüdiger Wolfrum

The Philippines

Agent

Solicitor General Florin T. Hilbay

Representatives of the Philippines

Secretary of Foreign Affairs Albert F. del Rosario

Mrs. Gretchen V. del Rosario

Secretary Ronaldo M. Llamas

Representative Rodolfo G. Biazon

Justice Francis H. Jardeleza

Justice Antonio T. Carpio Ambassador Jaime Victor B. Ledda Mrs. Veredigna M. Ledda Ambassador Enrique A. Manalo Ambassador Victoria S. Bataclan Ambassador Cecilia B. Rebong Ambassador Melita S. Sta. Maria-Thomeczek Ambassador Joselito A. Jimeno Ambassador Carlos C. Salinas Mrs. Isabelita T. Salinas

Deputy Executive Secretary Menardo I. Guevarra Deputy Executive Secretary Teofilo S. Pilando, Jr.

Undersecretary Emmanuel T. Bautista Undersecretary Abigail D. F. Valte Consul General Henry S. Bensurto, Jr.

Minister Igor G. Bailen

Minister and Consul General Dinno M. Oblena Director Ana Marie L. Hernando Second Secretary and Consul Zoilo A. Velasco Third Secretary and Vice Consul Ma. Theresa M. Alders Third Secretary and Vice Consul Oliver C. Delfin Attorney Josel N. Mostajo

Attorney Maximo Paulino T. Sison III Attorney Ma. Cristina T. Navarro Associate Solicitor Elvira Joselle R. Castro Attorney Margaret Faye G. Tañgan Associate Solicitor Maria Graciela D. Base Associate Solicitor Melbourne D. Pana Ms. Ma. Rommin M. Diaz

Mr. Rene Fajardo

Counsel and Advocates

Mr. Paul S. Reichler

Mr. Lawrence H. Martin

Professor Bernard H. Oxman

Professor Philippe Sands QC

Professor Alan E. Boyle

Mr. Andrew B. Loewenstein

Counsel

Mr. Joseph Klingler Mr. Yuri Parkhomenko Mr. Nicholas M. Renzler Mr. Remi Reichhold

Ms. Melissa Stewart

Technical Expert Mr. Scott Edmonds Mr. Alex Tait

Dr. Robert W. Smith

Assistants

Ms. Elizabeth Glusman Ms. Nancy Lopez

Expert Witnesses

Professor Kent E. Carpenter

Professor Clive Schofield

China

No Agent or representatives present

Delegations from Observer States

Australia

Ms. Indra McCormick, Embassy of Australia Republic of Indonesia

Mr. Ibnu Wahyutomo, Embassy of Indonesia

Dr. iur. Damos Dumoli Agusman, Ministry of Foreign Affairs

Mr. Andy Aron, Ministry of Foreign Affairs

Mr. Andreano Erwin, Office of the Special Envoy to the President Dr. Haryo Budi Nugroho, Office of the Special Envoy to the President Ms. Ayodhia G.L. Kalake, Coordinating Ministry of Maritime Affairs Ms. Sora Lokita, Coordinating Ministry of Maritime Affairs

Ms. Ourina Ritonga, Embassy of Indonesia

Ms. Monica Nila Sari, Embassy of Indonesia

Japan

Mr. Masayoshi Furuya, Embassy of Japan

Mr. Nobuyuki Murai, Embassy of Japan

Ms. Kaori Matsumoto, Embassy of Japan

Ms. Yuri Suzuki, Consular Office of Japan in Hamburg

Malaysia

Ambassador Ahmad Nazri Yusof

Dr. Azfar Mohamad Mustafar, Ministry of Foreign Affairs

Mr. Mohd Helmy Ahmad, Prime Minister's Department

Mr. Kamarul Azam Kamarul Baharin, Department of Survey and Mapping

Mr. Intan Diyana Ahamad, Attorney General's Chambers

Ms. Nor'airin Abd Rashid, Embassy of Malaysia

The Republic of Singapore

Mr. Luke Tang, Attorney-General's Chambers

Ms. Vanessa Lam, Ministry of Foreign Affairs

Ms. Lin Zhiping, Ministry of Foreign Affairs

Mr. John Cheo, Ministry of Foreign Affairs

Kingdom of Thailand

Ambassador Ittiporn Boonpracong

Mr. Sorayut Chasombat, Ministry of Foreign Affairs

Mr. Asi Mamanee, Royal Thai Embassy

Ms. Tanyarat Mungkalarungsi, Ministry of Foreign Affairs Ms. Kanokwan Ketchaimas, Royal Thai Embassy Ms. Natsupang Poshyananda, Royal Thai Embassy

Socialist Republic of Viet Nam

Mr. Trinh Duc Hai, National Boundary Commission

Ambassador Nguyen Duy Chien

Mr. Nguyen Minh Vu, Ministry of Foreign Affairs

Mr. Nguyen Dang Thang, National Boundary Commission Mr. Thomas Grant, Counsel

Expert Appointed to Assist the Tribunal

Mr. Grant Boyes

Permanent Court of Arbitration

Ms. Judith Levine, Registrar

Mr. Garth Schofield

Ms. Nicola Peart

Ms. Julia Solana

Mr. Philipp Kotlaba

Ms. Iuliia Samsonova

Ms. Gaelle Chevalier

Court Reporter

Mr. Trevor McGowan

The Chinese side will neither accept nor participate in the South China Sea arbitration unilaterally initiated by the Philippines. This longstanding position is fully supported by international law and subject to no change.

In the hearing, the Philippine side attempted to negate China's sovereignty over the Nansha Islands and deny the validity of the Cairo Declaration and the Potsdam Proclamation in disregard of historical facts, international law and international justice. It testifies to the fact that the South China Sea dispute between China and the Philippines is in essence a territorial dispute over which the arbitral tribunal has no jurisdiction. It also shows that the so-called arbitration is a political provocation under the cloak of law aiming at negating China's sovereignty and maritime rights and interests in the South China Sea instead of resolving the dispute.

It is the Chinese people rather than any other individuals or institutions that master China's territorial sovereignty. When it comes to issues concerning territorial sovereignty and maritime delimitation, China will not accept any dispute settlement approach that resorts to a third party. The Chinese side urges the Philippine side to cast aside illusions, change its course and come back to the right track of resolving disputes through negotiations and consultations.¹⁶

(a) As indicated during the Hearing on the Merits, the Tribunal remained interested in publications and studies from China or elsewhere concerning the environmental impact of China's island-building activities,¹⁷ especially in light of statements made by public officials and China's State Oceanic Administration ("SOA") indicating that such studies had been conducted.¹⁸ The Parties were thus invited to submit comments in respect of those materials, and China was specifically asked to indicate whether it had conducted an environmental impact study per Article 206 of the Convention and, if so, to provide the Tribunal with a copy.

(b) The Tribunal had decided to appoint an expert to provide an independent opinion on whether the Chinese construction activities in the Spratly Islands have a detrimental effect on the coral reef systems and the anticipated duration of such effects.

(c) The Tribunal considered it appropriate to appoint an expert to review the available documentary material relevant to the Philippines' Submission No. 13 on navigational safety issues and to draw independent conclusions as to whether there had been a violation of the navigational safety provisions covered by the Convention.

(d) Recalling that it had previously sought the Parties' comments on new documentation about the status of Itu Aba, the Tribunal sought comments on two further documents in the public domain that had recently come to its attention.

(a) The first letter noted that, in furtherance of its mandate to satisfy itself that the Philippines' claims are well founded in fact, the Tribunal considered it appropriate to have reference, to the greatest extent possible, to original records based on the direct observation of the features in question, prior to them having been subjected to significant human modification. It informed the Parties that, as the most extensive hydrographic survey work in the South China Sea prior to 1945 was carried out by the Royal Navy of the United Kingdom, followed closely by the Imperial Japanese Navy, the Tribunal had undertaken to seek records from the archives of the United Kingdom Hydrographic Office (the "UKHO"), which also hold certain Japanese records captured during the Second World War. The Tribunal provided documents and survey materials obtained by the Tribunal from the UKHO archives and invited the Parties' comments by 22 April 2016.

(b) The second letter conveyed a request from Dr. Ferse for the Philippines to seek clarification from the author of a 2015 report that was put into the record by the Philippines,¹⁹ with respect to the extent of reef damage caused by dredging versus clam shell extraction, in light of some more recent reporting on the matter.²⁰

(c) The third letter invited the Parties' comments on four new documents that had come to the Tribunal's attention, namely a "Position Paper on ROC South China Sea Policy," the comments of the People's Republic of China Foreign Ministry Spokesperson in response to that Position Paper; a document published by the "Chinese (Taiwan) Society of International Law" and some remarks of Mr. Ma Ying-jeou, then President of the Taiwan Authority of China, at an international press conference "regarding Taiping [Itu Aba] Island in Nansha Islands."

China has made it clear on multiple occasions that because the Arbitral Tribunal clearly has no jurisdiction over the present Arbitration, the decision to be made by such an institution that lacks the jurisdiction to do so has obviously no legal effect, and consequently there is no such thing as the recognition or implementation of the Award. Some people wonder whether China's position above is consistent with international law. Today, I would like to elaborate on China's positions from the international law perspective....

The first question is what is the scope of the jurisdiction of the Arbitral Tribunal.

... to settle international disputes by peaceful means is one of the fundamental principles of international law. However, it should be noted that there are a variety of means to settle disputes peacefully, and compulsory arbitration is merely a new type of procedure established under the UNCLOS. Compulsory arbitration is subsidiary and complementary to negotiation and consultation, and its application is subject to several preconditions....

First, compulsory arbitration can only be applied to settle disputes concerning the interpretation and application of the UNCLOS. If the subject matters are beyond the scope of the UNCLOS, the disputes shall not be settled by compulsory arbitration. The issue of territorial sovereignty is one such case. Consequently, States shall not initiate compulsory arbitration on disputes concerning it; and even if they do, the arbitral tribunal has no jurisdiction over them.

Second, a State Party to the UNCLOS may declare in writing that it does not accept compulsory arbitration with respect to disputes concerning maritime delimitation, historic bays or titles, military and law enforcement activities, etc. Such exclusions are effective to other States Parties. With respect to disputes excluded by one party, other parties to the dispute shall not initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over them.

Third, if parties to a dispute have agreed on other means of settlement of their own choice, no party shall unilaterally initiate compulsory arbitration; and even if it does, the arbitral tribunal has no jurisdiction over the dispute.

Fourth, at the procedural level, parties to a dispute are obliged to first exchange views on the means of dispute settlement. Failing to fulfill this obligation, they shall not initiate compulsory arbitration; and even if they do, the arbitral tribunal has no jurisdiction over the dispute.

The above four preconditions act as the "four bars" for States Parties to initiate compulsory arbitration, and for the arbitral tribunal to establish its jurisdiction. They form a part of the package system of dispute settlement, which shall be interpreted and applied comprehensively and in its entirety.

... If we apply the above preconditions to the arbitration unilaterally initiated by the Philippines, it is not difficult to see that the Philippines, by initiating the arbitration, has violated international law in at least four aspects.

First, the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the UNCLOS. Second, even assuming some of the claims were concerned with the interpretation and application of the UNCLOS, they would still be an integral part of maritime delimitation, which has been excluded by China through its 2006 Declaration and consequently is not subject to compulsory arbitration. Third, given that China and the Philippines have agreed to settle their disputes in the South China Sea through negotiation, the Philippines is precluded from initiating arbitration unilaterally. Fourth, the Philippines failed to fulfill the obligation of exchanging views with China on the means of dispute settlement.

In summary, the Philippines' initiation of the arbitration is a typical abuse of compulsory arbitral procedures stipulated in the UNCLOS.... In 2014, the Chinese Government issued a Position Paper to elaborate, from an international law perspective, on the question why the Tribunal lacks jurisdiction over the Arbitration....

However, the Tribunal is not objective or just. On several occasions, it distorts the provisions of the UNCLOS to embrace the claims of the Philippines. In violation of the fundamental principle that the jurisdiction shall be established based on facts and law, the Arbitral Tribunal concluded that it had jurisdiction over the Philippines' claims, which is neither convincing nor valid in international law. For such an award, China certainly has good reasons not to recognize it. The opinions made by the Tribunal, as an institution that manifestly lacks jurisdiction and should not exist in the first place, are personal views of the arbitrators at best and are not legally binding, not to mention its recognition or implementation.²²

Q: The Philippines claims that it had no alternative but to initiate the arbitration because the bilateral means has been exhausted. However, it is otherwise commented that China and the Philippines have never engaged in any negotiation on the subject-matters the Philippines submitted. What is China's comment on that?

A: The Chinese Government consistently adheres to the position of settling the relevant disputes between China and the Philippines by peaceful means through negotiation and consultation. This is a consensus reached and repeatedly reaffirmed by the two sides, as well as an explicit provision in the Declaration on the Conduct of Parties in the South China Sea (DOC). Besides, in 2006, China has, pursuant to the relevant provisions in Article 298 of the United Nations Convention on the Law of the Sea (UNCLOS), excluded disputes concerning, among others, sea boundary delimitations, historic bays or titles, military and law enforcement activities from the dispute settlement procedures provided in UNCLOS. Before its unilateral initiation of the arbitration in January 2013, the Philippine Government has not conducted any negotiation or consultation with China on the relevant subject-matters, not to mention that it has exhausted the means of bilateral negotiation for dispute settlement. The unilateral initiation of arbitration by the Philippines has failed to meet the prerequisite for arbitration initiation, and cannot play a role of dispute settlement or lead to anywhere for dispute settlement.

China always stands that, with regard to the relevant disputes between China and the Philippines in the South China Sea, a true solution can only be sought through bilateral negotiation and consultation. All sides should encourage the Philippines to work with China to resolve peacefully the relevant disputes through negotiation in accordance with the bilateral consensus, the DOC and international law including UNCLOS.²³

Q: As reported by some foreign media, the Philippines and the arbitral tribunal are attempting to characterize Taiping Dao of China's Nansha Islands as a "rock" other than an "island". However, according to experts and journalists who recently visited Taiping Dao, it is an island boasting plenty of fresh water and lush vegetation. The installations and facilities for medical care, postal service, energy generation, and scientific research are all available and in good working condition. It is vibrant and lively everywhere on this island. Do you have any comment on this?

A: China has indisputable sovereignty over the Nansha Islands and its adjacent waters, including Taiping Dao. China has, based on the Nansha Islands as a whole, territorial sea, exclusive economic zone and continental shelf. Over the history, Chinese fishermen have resided on Taiping Dao for years, working and living there, carrying out fishing activities, digging wells for fresh water, cultivating land and farming, building huts and temples, and raising livestock. The above activities are all manifestly recorded in Geng Lu Bu (Manual of Sea Routes) which was passed down from generation to generation among Chinese fishermen, as well as in many western navigation logs before the 1930s.

The working and living practice of Chinese people on Taiping Dao fully proves that Taiping Dao is an "island" which is completely capable of sustaining human habitation or economic life of its own. The Philippines' attempt to characterize Taiping Dao as a "rock" exposed that its purpose of initiating the arbitration is to deny China's sovereignty over the Nansha Islands and relevant maritime rights and interests. This violates international law, and is totally unacceptable.²⁴

I. It is the common agreement and commitment of China and the Philippines to settle their relevant disputes in the South China Sea through negotiation.

…

II. China and the Philippines have never conducted any negotiation on the subject-matters of the arbitration initiated by the Philippines.

…

III. The Philippines' unilateral initiation of arbitration goes against the bilateral agreement on settling the disputes through negotiation and violates the provisions of UNCLOS.

…

IV. China will adhere to the position of settling the relevant disputes with the Philippines in the South China Sea through negotiation.²⁵

The deposit has covered the fees and expenses of members of the Tribunal, Registry, and experts appointed to assist the Tribunal, as well as all other expenses including for hearings and meetings, information technology support, catering, court reporters, deposit administration, archiving, translations, couriers, communications, correspondence, and publishing of the Awards. Article 7 of Annex VII to the Convention provides that "[u]nless the arbitral tribunal decides otherwise because of the particular circumstances of the case, the expenses of the tribunal, including the remuneration of its members, shall be borne by the parties to the dispute in equal shares."²⁷

A. The Tribunal has jurisdiction over the claims set out in Section B of these Submissions, which are fully admissible, to the extent not already determined to be within the Tribunal's jurisdiction and admissible in the Award on Jurisdiction and Admissibility of 29 October 2015.

B. (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 ("UNCLOS" or the "Convention");

(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.²⁸

Article 9

Default of Appearance

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.

(a) ensured that all communications and materials in the arbitration have been promptly delivered, both electronically and physically, to the Ambassador of China to the Kingdom of the Netherlands in The Hague;

(b) granted China adequate and equal time to submit written responses to the pleadings submitted by the Philippines;

(c) invited China (as with the Philippines) to comment on procedural steps taken throughout the proceedings;

(d) provided China (as with the Philippines) with adequate notice of hearings and multiple opportunities to comment on the setting and scheduling of both the Hearing on Jurisdiction and Hearing on the Merits, as described at paragraphs 47 to 53, 54 to 59 and 61 to 76 above;

(e) promptly provided to China (as with the Philippines) copies of transcripts of the Hearing on Jurisdiction and Hearing on the Merits;

(f) invited China to comment on anything said during the Hearing on Jurisdiction and Hearing on the Merits;

(g) invited China (as with the Philippines) to comment on the proposed candidates and terms of reference for independent experts appointed by the Tribunal;

(h) invited China (as with the Philippines) to comment on certain materials in the public domain, but not already in the case record;

(i) made the Registry staff available to Chinese Embassy personnel to answer informal questions of an administrative or procedural nature;

(j) had the Registry convey written communications from the Chinese Embassy to the individual members of the Tribunal; and

(k) reiterated that it remains open to China to participate in the proceedings at any stage.

In the event that a Party does not appear before the Arbitral Tribunal or fails to defend its case, the Arbitral Tribunal shall invite written arguments from the appearing Party on, or pose questions regarding, specific issues which the Arbitral Tribunal considers have not been canvassed, or have been inadequately canvassed, in the pleadings submitted by the appearing Party. The appearing Party shall make a supplemental written submission in relation to the matters identified by the Arbitral Tribunal within three months of the Arbitral Tribunal's invitation. The supplemental submission of the appearing Party shall be communicated to the non-appearing Party for its comments which shall be submitted within three months of the communication of the supplemental submission. The Arbitral Tribunal may take whatever other steps it may consider necessary, within the scope of its powers under the Convention, its Annex VII, and these Rules, to afford to each of the Parties a full opportunity to present its case.³⁷

First, not accepting or participating in arbitral proceedings is a right enjoyed by a sovereign State. That is fully in conformity with international law. And certainly, China is not the first State to do so. For such a proceeding that is deliberately provocative, China has neither the obligation nor the necessity to accept or participate in it. The Philippines' initiation of the Arbitration lacks basic grounds in international law. Such an act can neither generate any validity in international law, nor create any obligation on China.

Second, by not accepting or participating in the arbitral proceedings, we aim to safeguard the solemnity and integrity of international law, including the UNCLOS, to oppose the abuse of the compulsory arbitration procedures, and to fulfill our commitments with the Philippines to settle relevant disputes through negotiations. The commitments were breached by the Philippines, but China remains committed to them.

Third, the actual objective of the Philippines to initiate the Arbitration and that of some other States to fuel the fire are not to genuinely resolve disputes. The Philippines was fully aware that the Arbitral Tribunal has no jurisdiction over disputes concerning territorial sovereignty and maritime delimitation between the two States; it was fully aware that it was absolutely not possible that China would accept the compulsory arbitration; and it was also fully aware that such a means would not help resolve the problem. With full awareness of the above, the Philippines still decided to abuse the provisions of the UNCLOS by unilaterally initiating and then pushing forward the arbitral proceedings. Some other States, who were making every effort to echo it, apparently have their ulterior motives. For such a game, there is no point for China to humor it.

Fourth, whether or not China accepts and participates in the arbitral proceedings, the Arbitral Tribunal has the obligation under international law to establish that it does have jurisdiction over the disputes. But from what we have seen, it apparently has failed to fulfill the obligation and the ruling would certainly be invalid. So there is no such thing of China's taking the consequence of the arbitration. If anything, it is the Philippines that should bear all the consequences of abusing the UNCLOS.⁴¹

Accordingly, the Tribunal sought records from the online database of the Bibliotheque Nationale de France and from the Archives Nationales d'Outre-Mer. On 26 May 2016, the Tribunal provided the Parties with the most pertinent documents obtained from those sources and allowed them an opportunity to comment. The Philippines sent its comments, with supplementary materials, on 3 June 2016.

The Arbitral Tribunal shall rule on any plea concerning its jurisdiction as a preliminary question, unless the Arbitral Tribunal determines, after seeking the views of the Parties, that the objection to its jurisdiction does not possess an exclusively preliminary character, in which case it shall rule on such a plea in conjunction with the merits.⁶⁸

the communications by China, including notably its Position Paper of 7 December 2015 and the Letter of 6 February 2015 from the Ambassador of the People's Republic of China to the Netherlands, effectively constitute a plea concerning this Arbitral Tribunal's jurisdiction for the purposes of Article 20 of the Rules of Procedure and will be treated as such for the purposes of this arbitration.⁷¹

in light of the circumstances and its duty to "assure to each Party a full opportunity to be heard and to present its case," it is appropriate to bifurcate the proceedings and to convene a hearing to consider the matter of the Arbitral Tribunal's jurisdiction and, as necessary, the admissibility of the Philippines' submissions."⁷²

A 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.⁹⁰

Accordingly, the Tribunal held that the claims presented by the Philippines do not concern sea boundary delimitation and are not, therefore, subject to the exception to the dispute settlement provisions of the Convention.⁹¹ The Tribunal also emphasised that the Philippines had not asked it to delimit any boundary.⁹²

(a) First, the Tribunal noted that its jurisdiction may depend on the nature and validity of any claim by China to historic rights in the South China Sea and whether such rights are covered by the exclusion from jurisdiction of "historic bays or titles."¹¹²

(b) Second, the Tribunal noted that its jurisdiction may depend on the status of certain maritime features in the South China Sea and whether the Philippines and China possess overlapping entitlements to maritime zones in the South China Sea. If so, the Tribunal may not be able to reach the merits of certain claims because they would first require a delimitation of the overlapping zones (which the Tribunal is not empowered to do).¹¹³

(c) Third, the Tribunal noted that its jurisdiction may depend on the maritime zone in which alleged Chinese law enforcement activities in fact took place.¹¹⁴

(d) Fourth, the Tribunal noted that its jurisdiction may depend on whether certain Chinese activities are military in nature.¹¹⁵

A. FINDS that the Tribunal was properly constituted in accordance with Annex VII to the Convention.

B. FINDS that China's non-appearance in these proceedings does not deprive the Tribunal of jurisdiction.

C. FINDS that the Philippines' act of initiating this arbitration did not constitute an abuse of process.

D. FINDS that there is no indispensable third party whose absence deprives the Tribunal of jurisdiction.

E. FINDS that 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. FINDS that the Parties have exchanged views as required by Article 283 of the Convention.

G. FINDS that 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. FINDS that 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. DIRECTS the Philippines 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.

J. RESERVES for further consideration and directions all issues not decided in this Award.¹¹⁷

(a) "First, the essence of the subject-matter of the arbitration is territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the UNCLOS."¹²¹

(b) "Second, even assuming some of the claims were concerned with the interpretation and application of the UNCLOS, they would still be an integral part of maritime delimitation, which has been excluded by China through its 2006 Declaration and consequently is not subject to compulsory arbitration."¹²²

(c) "Third, given that China and the Philippines have agreed to settle their disputes in the South China Sea through negotiation, the Philippines is precluded from initiating arbitration unilaterally."¹²³

(d) "Fourth, the Philippines failed to fulfill the obligation of exchanging views with China on the means of dispute settlement."¹²⁴

China has also continued to assert its view that (e) "the Philippines' initiation of the arbitration is a typical abuse of compulsory arbitral procedures stipulated in the UNCLOS."¹²⁵

(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 ("UNCLOS" or the "Convention");

(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;

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 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.

2. China's territorial sea along the mainland and its coastal islands takes as its baseline the line composed of the straight lines connecting base-points on the mainland coast and on the outermost of the coastal islands; the water area extending twelve nautical miles outward from this baseline is China's territorial sea. The water areas inside the baseline, including Bohai Bay and the Chiungchow Straits, are Chinese inland waters. The islands inside the baseline, including Tungyin Island, Kaoteng Island, the Matsu Islands, the Paichuan Islands, Wuchiu Island, the Greater and Lesser Quemoy Islands, Tatan Island, Erhtan Island and Tungting Island, are islands of the Chinese inland waters.

3. No foreign vessels for military use and no foreign aircraft may enter China's territorial sea and the air space above it without the permission of the Government of the People's Republic of China.

While navigating Chinese territorial sea, every foreign vessel must observe the relevant laws and regulations laid down by the Government of the People's Republic of China.

4. The principles provided in paragraphs (2) and (3) likewise apply to 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.¹³⁹

Article 2

The territorial sea of the People's Republic of China is the sea belt adjacent to the land territory and the internal waters of the People's Republic of China.

The land territory of the People's Republic of China includes the mainland of the People's Republic of China and its coastal islands; Taiwan and all islands appertaining thereto including the Diaoyu Islands; the Penghu Islands; the Dongsha Islands; the Xisha Islands; the Zhongsha Islands and the Nansha Islands; as well as all the other islands belonging to the People's Republic of China.

The waters on the landward side of the baselines of the territorial sea of the People's Republic of China constitute the internal waters of the People's Republic of China.

Article 3

The breadth of the territorial sea of the People's Republic of China is twelve nautical miles, measured from the baselines of the territorial sea.

The method of straight baselines composed of all the straight lines joining the adjacent base points shall be employed in drawing the baselines of the territorial sea of the People's Republic of China.

The outer limit of the territorial sea of the People's Republic of China is the line every point of which is at a distance equal to twelve nautical miles from the nearest point of the baseline of the territorial sea.

Article 4

The contiguous zone of the People's Republic of China is the sea belt adjacent to and beyond the territorial sea. The breadth of the contiguous zone is twelve nautical miles.

The outer limit of the contiguous zone of the People's Republic of China is the line every point of which is at a distance equal to twenty four nautical miles from the nearest point of the baseline of the territorial sea.

Article 5

The sovereignty of the People's Republic of China over its territorial sea extends to the air space over the territorial sea as well as to the bed and subsoil of the territorial sea.¹⁴⁰

1. In accordance with the provisions of the United Nations Convention on the Law of the Sea, the People's Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.

2. The People's Republic of China will effect, through consultations, the delimitation of boundary of the maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle.

3. The People's Republic of China reaffirms its sovereignty over all its archipelagoes and islands as listed in article 2 of the Law of the People's Republic of China on the Territorial Sea and Contiguous Zone which was promulgated on 25 February 1992.

4. The People's Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal state to request, in accordance with its laws and regulations, a foreign state to obtain advance approval from or give prior notification to the coastal state for the passage of its warships through the territorial sea of the coastal state.¹⁴²

Article 2

The exclusive economic zone of the People's Republic of China covers the area beyond and adjacent to the territorial sea of the People's Republic of China, extending to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.

The continental shelf of the People's Republic of China comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

The People's Republic of China shall determine the delimitation of its exclusive economic zone and continental shelf in respect of the overlapping claims by agreement with the states with opposite or adjacent coasts, in accordance with the equitable principle and on the basis of international law.¹⁴³

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 (see attached map). The above position is consistently held by the Chinese Government, and is widely known by the international community.¹⁵⁰

On the "Waters Adjacent" to the Islands and other Geological Features

SECOND, the Philippines, under the Roman notion of dominium maris and the international law principle of "la terre domine la mer" which states that the land dominates the sea, necessarily exercises sovereignty and jurisdiction over the waters around or adjacent to each relevant geological feature in the KIG as provided for under the United Nations Convention on the Law of the Sea (UNCLOS).

At any rate, the extent of the waters that are "adjacent" to the relevant geological features are definite and determinable under UNCLOS, specifically under Article 121 (Regime of Islands) of the said Convention.

On the Other "Relevant Waters, Seabed and Subsoil" in the SCS

THIRD, since the adjacent waters of the relevant geological features are definite and subject to legal and technical measurement, the claim as well by the People's Republic of China on the "relevant waters as well as the seabed and subsoil thereof" (as reflected in the so-called 9-dash line map attached to Notes Verbales CML/17/2009 dated 7 May 2009 and CML/18/2009 dated 7 May 2009) outside of the aforementioned relevant geological features in the KIG and their "adjacent waters" would have no basis under international law, specifically UNCLOS. With respect to these areas, sovereignty and jurisdiction or sovereign rights, as the case may be, necessarily appertain or belong to the appropriate coastal or archipelagic state - the Philippines - to which these bodies of waters as well as seabed and subsoil are appurtenant, either in the nature of Territorial Sea, or 200 M Exclusive Economic Zone (EEZ), or Continental Shelf (CS) in accordance with Articles 3, 4, 55, 57, and 76 of UNCLOS.¹⁵⁴

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. China's sovereignty and related rights and jurisdiction in the South China Sea are supported by abundant historical and legal evidence. The contents of the Note Verbale No 000228 of the Republic of Philippines are totally unacceptable to the Chinese Government.

... Furthermore, under the legal principle of "la terre domine la mer", coastal states' Exclusive Economic Zone (EEZ) and Continental Shelf claims shall not infringe upon the territorial sovereignty of other states.

Since 1930s, the Chinese Government has given publicity several times the geographical scope of China's Nansha Islands and the names of its components. China's Nansha Islands is therefore clearly defined. In addition, under the relevant provisions of the 1982 United Nations Convention on the Law of the Sea, as well as the Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone (1992) and the Law on the Exclusive Economic Zone and the Continental Shelf of the People's Republic of China-(1998), China's Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf.¹⁵⁵

China has indisputable sovereignty over the Nansha Islands and their adjacent waters. And it is an indisputable fact that the Xisha Islands are an integral part of China's territory. As early as 1948, the Chinese government published an official map which displayed "the dotted line" in the South China Sea. China's sovereignty over the South China Sea and its claims to the relevant rights have been formed over a long course of history. They are solidly grounded in international law and have been consistently upheld by successive Chinese governments.¹⁵⁸

China has indisputable sovereignty over the South China Sea Islands and the adjacent waters. China's sovereignty and relevant rights in the South China Sea, formed in the long historical course, are upheld by successive Chinese governments, reaffirmed by China's domestic laws on many occasions, and protected under international law including the United Nations Convention on the Law of the Sea (UNCLOS)....¹⁵⁹

the most logical way to construe China's language is as an assertion of sovereignty over the islands of the South China Sea and their "adjacent waters", or territorial seas; and a claim of sovereign rights and jurisdiction—short of sovereignty—in the waters that lie between the territorial seas claimed by China and the nine-dash line.¹⁶⁰

China was a vocal supporter of the demands of developing coastal states for exclusive jurisdiction over the natural resources in the EEZs and continental shelves off their respective coasts, and China was a consistent critic of attempts to limit the content of that jurisdiction. China identified itself as one of those developing coastal states. It made no attempt whatsoever to secure an exception protecting historic claims of maritime rights of the kind that are now at issue.¹⁷⁴

Accordingly, the Philippines concludes, "[t]he Convention leaves no room for assertions of rights to control activities beyond [the limits fixed in the Convention] in derogation of the sovereign rights of other coastal states or the rights and freedoms of all states."¹⁷⁵

During the mid-15th century, for instance, the Ming authorities suppressed maritime activities, and in 1500 made it a capital offence to build two-masted ships. In 1525, all such remaining ships were ordered destroyed. In 1551, China defined venturing out to sea in a multi-masted ship to be an act of treason.¹⁷⁹

The "nine-dash line"... is called by China the dotted line. I want to stress that China's sovereignty and relevant rights in the South China Sea were formed throughout the long course of history and have been maintained by the Chinese Government consistently.

Early in 1948, the dotted line was mapped on China's official map. It was a confirmation of China's rights in the South China Sea formed throughout the history, instead of creation of new claims. For a long time, no State questioned the legitimacy of the dotted line and it also appeared on the official maps of many States.

In recent years, some States started to attack on China's dotted line. The real motive is to intentionally confuse territorial disputes with disputes over maritime delimitation, deny China's sovereignty over the South China Sea Islands and their adjacent waters, and cover up their illegal invasion and occupation of part of the maritime features of China's Nansha Islands.

In the Arbitration, the Philippines requested the Arbitral Tribunal to decide whether maritime entitlements claimed by China in the South China Sea exceeded the limits of the UNCLOS.... [T]o answer this question, we need to decide China's territorial sovereignty first. In accordance with international law, territorial sovereignty is the basis of maritime rights. Without first determining China's territorial sovereignty over the maritime f[ea]tures in the South China Sea, it would not be possible to determine maritime entitlements China may claim in it pursuant to the UNCLOS, let alone determine whether China's maritime claims in the South China Sea have exceeded the extent allowed under the UNCLOS.

On the other hand, we have to note that the dotted line came into existence much earlier than the UNCLOS, which does not cover all aspects of the law of the sea. No matter from which lens we look at this, the Tribunal does not have jurisdiction over China's dotted line. As to negotiations, China has reiterated its hope that the relevant parties should resolve the disputes through consultation and negotiation based on historical facts and international law. The door of negotiation remains open.¹⁹⁴

Article 298

Optional exceptions to applicability of section 2

1. When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes:

(a) (i) disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles....

On 30 June 20l1 at the launching of Fourth Philippine Energy Contracting Round (PECR4), the Department of Energy of the Philippines offered 15 petroleum blocks to local and international companies for exploration and development. Among the aforesaid blocks, AREA 3 and AREA 4 are situated in the waters of which China has historic titles including sovereign rights and jurisdiction.²⁰⁵

Despite the possibility that China's claims were based on a theory of entitlement to continental shelf rights pursuant to the Convention, the framing of China's objections strongly indicates that China considers its rights with respect to petroleum resources to stem from historic rights.

All productive activity types, except for using single-layer gill net and line-fishing equipment, shall be prohibited from 16 May 12:00 p.m. until 1 August 12:00 p.m. in the South China Sea areas from 12° north latitude up to the "Common Boundary Line of Fujian-Guangdong Sea Areas" (including the Gulf of Tonkin) under the jurisdiction of the People's Republic of China.²⁰⁷

the theory of historic bays is of general scope. Historic rights are claimed not only in respect of bays, but also in respect of maritime areas which do not constitute bays, such as the waters of archipelagos and the water area lying between an archipelago and the neighbouring mainland; historic rights are also claimed in respect of straits, estuaries and other similar bodies of water. There is a growing tendency to describe these areas as "historic waters", not as "historic bays".²¹⁸

The report also recalled the observation of the International Court of Justice in Anglo-Norwegian Fisheries that "[b]y '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"²¹⁹ and discussed the formation of rights to a historic bay in terms of the formation of historic title.²²⁰

In determining whether or not a title to "historic waters" exists, there are three factors which have to be taken into consideration, namely,

(i) The authority exercised over the area by the State claiming it as "historic waters";

(ii) The continuity of such exercise of authority;

(iii) The attitude of foreign States.²²⁶

(a) First, does the Convention, and in particular its rules for the exclusive economic zone and continental shelf, allow for the preservation of rights to living and non-living resources that are at variance with the provisions of the Convention and which may have been established prior to the Convention's entry into force by agreement or unilateral act?

(b) Second, prior to the entry into force of the Convention, did China have historic rights and jurisdiction over living and non-living resources in the waters of the South China Sea beyond the limits of the territorial sea?

(c) Third, and independently of the first two considerations, has China in the years since the conclusion of the Convention established rights and jurisdiction over living and non-living resources in the waters of the South China Sea that are at variance with the provisions of the Convention? If so, would such establishment of rights and jurisdiction be compatible with the Convention?

Article 311

Relation to other conventions and international agreements

1. This Convention shall prevail, as between States Parties, over the Geneva Conventions on the Law of the Sea of 29 April 1958.

2. This Convention shall not alter the rights and obligations of States Parties which arise from other agreements compatible with this Convention and which do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides.

5. This article does not affect international agreements expressly permitted or preserved by other articles of this Convention.

6. States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof.

(a) Where the Convention expressly permits or preserves other international agreements, Article 311(5) provides that such agreements shall remain unaffected. The Tribunal considers that this provision applies equally where historic rights, which may not strictly take the form of an agreement, are expressly permitted or preserved, such as in Articles 10 and 15, which expressly refer to historic bays and historic titles.

(b) Where the Convention does not expressly permit or preserve a prior agreement, rule of customary international law, or historic right, such prior norms will not be incompatible with the Convention where their operation does not conflict with any provision of the Convention or to the extent that interpretation indicates that the Convention intended the prior agreements, rules, or rights to continue in operation.

(c) Where rights and obligations arising independently of the Convention are not incompatible with its provisions, Article 311(2) provides that their operation will remain unaltered.

(d) Where independent rights and obligations have arisen prior to the entry into force of the Convention and are incompatible with its provisions, the principles set out in Article 30(3) of the Vienna Convention and Article 293 of the Convention provide that the Convention will prevail over the earlier, incompatible rights or obligations.

Article 56

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

Article 58

Rights and duties of other States in the exclusive economic zone

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

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

Article 62

Utilization of the living resources

1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to article 61.

2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned therein.

3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks.

4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following....

While according a preferential right of catch to developing coastal States corresponding to their harvesting capacities and a differentiated preferential right to developed coastal States, the proposals also take into consideration the legitimate interests of other States. Thus, they seek to ensure that a gradual accommodation of interests can be brought about in the expanding exploitation and use of fishery resources of the high seas, without causing any abrupt change in the present order in fishing which might result in disturbing the economic and social structures of States.²³⁸

The Soviet Union, for its part, sought to limit the rights of coastal States to fisheries beyond 12 nautical miles to a preferential right to reserve "such part of the allowable catch of fish as can be taken by vessels navigating under that State's flag."²³⁹ These proposals were ultimately rejected and are not reflected in the text of the Convention, as adopted.

On the question whether the coastal State should exercise full sovereignty over the renewable and non-renewable resources in its economic zone or merely have preferential rights to them, [Mr. Ling] said that such resources in the off-shore sea areas of a coastal State were an integral part of its natural resources. The super-Powers had for years wantonly plundered the offshore resources of developing coastal States, thereby seriously damaging their interests. Declaration of permanent sovereignty over such resources was a legitimate right, which should be respected by other countries. The super-Powers, however, while giving verbal recognition to the economic zone, were advocating the placing of restrictions on the sovereignty of coastal States over their resources. For example, one of them had proposed that the coastal State should allow foreign fishermen the right to fish within that zone in cases where the State did not harvest 100 per cent of the allowable catch. Such logic made no sense. The suggestion in fact harked back to that super-Power's well-known proposal that coastal States should be allowed only "preferential rights" when fishing their own off-shore areas. Yet, the establishment of exclusive economic zones over the resources of which coastal States would exercise permanent sovereignty simply meant that the developing countries were regaining their long-lost rights and in no way implied a sacrifice on the part of the super-Powers. The coastal State should be permitted to decide whether foreign fishermen were allowed to fish in the areas under its jurisdiction by virtue of bilateral or regional agreements, but it should not be obliged to grant other States any such rights.²⁴⁰

Our prime concern is the establishment of a completely integrated legal order for the use of the oceans and its resources and potential. All else must be subordinated to and subserve this purpose. This is the function of the Preamble and the Final Clauses. They must not be allowed to create such contention as would obscure and obstruct the overriding objective, hamper the work of the Conference and imperil our chances of success.

We must seek to preserve intact, and protect, the efficacy and durability of the body of law which we are trying to create in the form of a Convention encompassing all issues and problems relating to the law of the sea as a package comprising certain elements that constitute a single and indivisible entity.

We must seek to attract the most extensive and representative degree of ratification and the earliest possible entry into force of the new Convention.

The second objective that I have specified here cannot be achieved if we expose the essential unity and coherence of the new body of law to the danger of impairment through the unrestricted exercise of the right of reservation.²⁴³

The Chamber cannot adopt these positions of the Parties. Concerning that of the United States, it can only confirm its decision not to ascribe any decisive weight, for the purposes of the delimitation it is charged to carry out, to the antiquity or continuity of fishing activities carried on in the past within that part of the delimitation area which lies outside the closing line of the Gulf. Until very recently, as the Chamber has recalled, these expanses were part of the high seas and as such freely open to the fishermen not only of the United States and Canada but also of other countries, and they were indeed fished by very many nationals of the latter. The Chamber of course readily allows that, during that period of free competition, the United States, as the coastal State, may have been able at certain places and times—no matter for how long—to achieve an actual predominance for its fisheries. But after the coastal States had set up exclusive 200-mile fishery zones, the situation radically altered. Third States and their nationals found themselves deprived of any right of access to the sea areas within those zones and of any position of advantage they might have been able to achieve within them. As for the United States, any mere factual predominance which it had been able to secure in the area was transformed into a situation of legal monopoly to the extent that the localities in question became legally part of its own exclusive fishery zone. Conversely, to the extent that they had become part of the exclusive fishery zone of the neighbouring State, no reliance could any longer be placed on that predominance. Clearly, whatever preferential situation the United States may previously have enjoyed, this cannot constitute in itself a valid ground for its now claiming the incorporation into its own exclusive fishery zone of any area which, in law, has become part of Canada's.²⁴⁶

3. Two or more States Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them, provided that such agreements do not relate to a provision derogation from which is incompatible with the effective execution of the object and purpose of this Convention, and provided further that such agreements shall not affect the application of the basic principles embodied herein, and that the provisions of such agreements do not affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention.

4. States Parties intending to conclude an agreement referred to in paragraph 3 shall notify the other States Parties through the depositary of this Convention of their intention to conclude the agreement and of the modification or suspension for which it provides.

Similarly, the subsequent practice of the States parties may bear on the interpretation of a treaty pursuant to Article 31 of the Vienna Convention, or a new rule of customary international law may emerge to modify the provisions of a treaty. International law is not static.

(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;

(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;

(a) "[W]here a low-tide elevation is located within 12 miles of a high-tide feature, sovereignty over the low-tide elevation rests with the State by reason of the sovereignty it has over the high-tide feature."²⁶⁶

(b) Where "low-tide elevations... lie wholly beyond 12 miles, but within a state's exclusive economic zone or continental shelf..., the coastal state enjoys exclusive sovereign rights and jurisdiction with regard to the low-tide elevation in accordance and within the limits of the regime provided for in Articles 56(3) and 77 of the 1982 Convention."²⁶⁷

(c) And where a low-tide elevation would be located "at an even greater distance, beyond areas of national jurisdiction. In such cases, it is part of the deep seabed and subject to Part XI of the Convention, and no state can purport to exercise sovereignty or any sovereign rights over or in respect of it."²⁶⁸

The Philippines also notes that, pursuant to Article 13(1), there is a distinction between low-tide elevations falling wholly or partially within the territorial sea of a high-tide feature, which may serve as part of the baseline for the territorial sea of that high-tide feature, and low-tide elevations located beyond the territorial sea, which "have no capacity to generate claims to maritime jurisdiction."²⁶⁹

No. 4 and 6 is a low-tide elevation: Second Thomas Shoal, Mischief Reef, Subi Reef, "McKennan Reef including Hughes Reef" (which the Philippines treats as single feature), and the Gaven Reefs. The Philippines distinguishes between them, however, and considers that Second Thomas Shoal, Mischief Reef, and Subi Reef lie beyond 12 nautical miles from any high-tide feature. In contrast, the Philippines considers that the Gaven Reefs lie within the 12-nautical-mile territorial sea of Namyit Island and that McKennan Reef lies within the 12-nautical-mile territorial sea of Sin Cowe Island, such that both low-tide elevations can be used to extend the baseline of the territorial sea of the high-tide features.²⁷⁰

Two sets of images were produced from different parts of the electromagnetic spectrum resulting in varying wavelengths. The band 1 images correspond to a shorter wavelength of between 0.45 and 0.52 micrometres, and these can penetrate water. The band 4 images correspond to a longer wavelength of between 0.76 and 0.90 micrometres, which are almost entirely absorbed by water. A band 4 image can therefore only show features that are above water.²⁷²

The Philippines submits that Landsat imagery of each of the five features confirms that none is above water at high tide.²⁷³

We have collected all the available charts and other evidence we can find. The satellite imagery, including the EOMAP analysis of each of the features, consistently, completely and without the slightest ambiguity demonstrates that all five features are covered by water at high tide. This is simply not an issue and cannot reasonably be disputed.

The charts produced by all the relevant charting agencies—including the Philippines, China, Malaysia, Vietnam, the United Kingdom and the United States—agree that all five features are low-tide elevations. All of the evidence, including the satellite imagery and the Sailing Directions set out in the Atlas, is remarkably—and, we say, gloriously— consistent in its depiction of the features as low-tide elevations.²⁷⁶

Taking the U.S. Sailing Directions first, the relevant passage is on your screens. It is true that there is a reference to a white sand dune, and the third sentence says that it is 2 metres high. But the Sailing Directions does not say that the sand dune is "above water at high tide"; in fact, it says the opposite. The first sentence states without ambiguity that both reefs are covered by water at high tide. The white sand dune mentioned in the third sentence is properly read as a reference to its situation at less than high water.

Both the Philippines and Chinese Sailing Directions support this interpretation. The Philippine Coast Pilot explains that Gaven Reefs "cover at [high water]", and the Chinese Sailing Directions states explicitly that, "these rocks are all submerged by seawater". And these are the words, we say, that dominate.

I turn to US chart no. 93043, referred to in the Tribunal's question. You can see it on your screens. You can now see the datum for the chart; it is highlighted. This is based on a Japanese survey undertaken in 1936 and 1937. As to the heights—this is significant—these are expressed in "metres above mean sea level". Mean sea level is not the same as high tide; it is a lower level. It cannot therefore be concluded on the basis of this chart—an old chart of about 80 years of age—that any part of Gaven Reef is above water at high tide.²⁷⁹

The Philippines also emphasised that the EOMAP imagery of the Gaven Reefs gives no indication of a high-tide feature.²⁸⁰

Both the U.S. and UK Sailing Directions indicate that a sand cay lies on one of the reefs approximately 3.5 nautical miles from Thitu. However, U.S. chart NGA 93044 (2nd ed. 5/84) has removed the indication of a cay that had been present on the previous U.S. chart of the area, NGA 93061B (4th ed. revised through 9/70). Currently, only British Chart 3483 shows the presence of a tiny cay on one of these reefs. Charts published by the Philippines, China, Vietnam, Japan and Russia give no indication of any feature above water at high tide among these reefs.

When the satellite imagery used in the EOMap analysis was taken, the tidal level was determined (by EOMap) to be 71 cm below Mean High Water. Even at that relatively low tidal level, the two westernmost reefs were completely submerged.

On the three easternmost reefs, there are indications of tiny sand spits that had uncovered at that tidal level. While it is likely that these sandy areas cover fully at tidal levels approaching Mean High Water, the EOMap analysis automatically depicts them as small white spots identified as "data flags," because the technology employed only reads the relative heights of features that are covered by water at the time of image capture.²⁸¹

The Philippines asserts that some of the maritime features, about which it has submitted claims for arbitration, are low-tide elevations, thus being incapable of appropriation as territory. As to whether those features are indeed low-tide elevations, this Position Paper will not comment.²⁸²

Article 13 Low-tide elevations

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

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