Lawyers, other representatives, expert(s), tribunal’s secretary

Award

GLOSSARY OF DEFINED TERMS
TermDefinition
1948 Map The map showing the location of the various islands in the South Sea, published by the Boundary Department of the Ministry of Interior of the Republic of China in 1948
1958 Convention on the Continental Shelf Convention on the Continental Shelf, Art. 1, 25 April 1958, 499 UNTS 311
1958 Convention on the Territorial Sea and the Contiguous Zone Convention on the Territorial Sea and the Contiguous Zone, Art. 10, 29 April 1958, 516 UNTS 205
1994 Study T.C. Huang, et. al., "The Flora of Taipingtao (Itu Aba Island)," Taiwania, Vol. 39, No. 1-2 (1994)
2009 Map The map appended to Notes Verbales from the Permanent Mission of the People's Republic of China to the Secretary-General of the United Nations (7 May 2009)
Affidavit of R.Z. Comandante Affidavit of Mr. Richard Comandante (12 November 2015)
Affidavit of T.D. Forones Affidavit of Mr. Tolomeo Forones (12 November 2015)
Affidavit of M.C.Lanog Affidavit of Mr. Miguel Lanog (12 November 2015)
Affidavit of J.P.Legaspi Affidavit of Mr. Jowe Legaspi (12 November 2015)
Affidavit of C.D. Talatagod Affidavit of Mr. Crispen Talatagod (12 November 2015)
Affidavit of C.O.Taneo Affidavit of Mr. Cecilio Taneo (12 November 2015)
Allen Report Report of Professor Craig H. Allen (19 March 2014)
Arunco Report of28 May 2012 Report from A.A. Arunco, et al., FRPLEU-QRT Officers, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, to the Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (28 May 2012)
Area 3 Offshore petroleum block tendered on 30 June 2011, as part of the Fourth Philippine Energy Contracting Round (PECR 4)
Area 4 Offshore petroleum block tendered on 30 June 2011, as part of the Fourth Philippine Energy Contracting Round (PECR 4)
ASEAN Association of Southeast Asian Nations

TermDefinition
Award on Jurisdiction The Tribunal's Award on Jurisdiction and Admissibility, dated 29 October 2015
CBD Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79
China The People's Republic of China
China's 2006 Declaration The Declaration of the People's Republic of China under Article 298 of the Convention, dated 25 August 2006, that China "does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b) and (c) of Article 298 of the Convention."
China's PositionPaper 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, published by China on 7 December 2014
Chinese Embassy The Embassy of the People's Republic of China in the Kingdom of the Netherlands
CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243
CLCS Commission on the Limits of the Continental Shelf
CMS China Marine Surveillance
CNOOC China National Offshore Oil Corporation
COLREGS Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 UNTS 1976
Convention United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (or "UNCLOS")
DOC 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea, 4 November 2002
EIA Environmental impact assessment
FAO Food and Agriculture Organization of the United Nations
Ferse Report Dr. rer. Nat. Sebastian C.A. Ferse, Professor Peter Mumby, PhD and Dr. Selina Ward, PhD, Assessment of the Potential Environmental Consequences of Construction Activities on Seven Reefs in the Spratly Islands in the South China Sea (26 April 2016)
First Bailey Report Dr. Ryan T. Bailey, Groundwater Resources Analysis of Itu Aba (9 March 2016)
First CarpenterReport Professor Kent E. Carpenter, Eastern South China Sea Environmental Disturbances and Irresponsible Fishing Practices and their Effects on Coral Reefs and Fisheries (22 March 2014)

TermDefinition
First Motavalli Report Dr. Peter P. Motavalli, Soil Resources and Potential Self-Sustaining Agricultural Production on Itu Aba (9 March 2016)
FLEC Fisheries Law Enforcement Command of China
Forum Energy Forum Energy Plc
GSEC101 Geophysical Survey and Exploration Contract 101 block (a Philippine offshore petroleum block)
Hainan Regulation People's Republic of China, Hainan Province, Hainan Provincial Regulation on the Control of Coastal Border Security (31 December 2012)
Hearing onJurisdiction The Hearing held from 7 to 13 July 2015 to consider the matter of the Tribunal's Jurisdiction and, as necessary, the admissibility of the Philippines' Submissions
Hearing on the Merits The Hearing held from 24 to 30 to November 2015 to consider any outstanding issues of the Tribunal's jurisdiction and admissibility and the merits of the Philippines' Submissions.
IHO International Hydrographic Organization
ISA International Seabed Authority
IUCN International Union for Conservation of Nature and Natural Resources
IUU illegal, unreported, and unregulated (fishing)
Malaysia'sCommunication Communication from the Ministry of Foreign Affairs of Malaysia to the Tribunal, (23 June 2016)
McManus Report Professor John W. McManus, Offshore Coral Reef Damage, Overfishing and Paths to Peace in the South China Sea (rev. ed., 21 April 2016)
Mora Report Professor Camilo Mora, Dr. Iain R. Caldwell, Professor Charles Birkeland, and Professor John W. McManus, "Dredging in the Spratly Islands: Gaining Land but Losing Reefs," PLoS Biology Vol. 14(3) (31 March 2016)
Memorial The Memorial of the Philippines, filed on 30 March 2014
Nido Nido Petroleum Ltd.
Parties The Republic of the Philippines and the People's Republic of China
PCA The Permanent Court of Arbitration (or "Registry")
Philippines The Republic of the Philippines
PNOC PNOC Exploration Corporation
Registry The Permanent Court of Arbitration (or "PCA")

TermDefinition
Request for Further Written Argument The Tribunal's Request for Further Written Argument by the Philippines Pursuant to Article 25(2) of the Rules of Procedure, annexed to Procedural Order No. 3 (16 December 2014)
SARV CoastguardReport of 28 April2012 Report from Commanding Officer, SARV-003, Philippine Coast Guard, to Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard (28 April 2012)
SC58 Service Contract 58 (a Philippine offshore petroleum block)
SC72 Service Contract 72 (a Philippine offshore petroleum block)
Schofield Report Professor Clive Schofield, Professor J.R.V. Prescott, and Mr Robert van de Poll, An Appraisal of the Geographical Characteristics and Status of Certain Insular Features in the South China Sea (March 2015)
Second Bailey Report Dr. Ryan T. Bailey, Supplemental Report on Groundwater Resources Analysis of Itu Aba (20 April 2016)
Second Carpenter Report Professor Kent E. Carpenter and Professor Loke Ming Chou, Environmental Consequences of Land Reclamation Activities on Various Reefs in the South China Sea (14 November 2015)
Second MotavalliReport Dr. Peter P. Motavalli, Second Supplemental Expert Report on Soil Resources and Potential Self-Sustaining Agricultural Production on Itu Aba (2 June 2016)
Singhota Report Captain Gurpreet S. Singhota, Report of the International Navigational Safety Expert appointed by the Permanent Court of Arbitration, The Hague, The Netherlands (15 April 2016)
SOA The State Oceanic Administration of China
SOA Report Feng Aiping and Wang Yongzhi, First Ocean Research Institution of State Oceanic Administration, "Construction Activities at Nansha Reefs Did Not Affect the Coral Reef Ecosystem" (10 June 2015)
SOA Statement State Oceanic Administration of China, "Construction Work at Nansha Reefs Will Not Harm Oceanic Ecosystems" (18 June 2015)
Sterling Energy Sterling Energy Plc
Submissions The Submissions of the Philippines set out at pp. 271-272 of its Memorial, re-stated during the Hearing on the Merits and in a Letter from the Philippines to the Tribunal on 30 November 2015, as amended with leave of the Tribunal granted on 16 December 2015
Supplemental Written Submission The Supplemental Written Submission of the Philippines, filed on 16 March 2015, pursuant to Article 25 of the Rules of Procedure and Procedural Order No. 3
Third Carpenter Report Declaration of Professor K.E. Carpenter, para. 5 (24 April 2016)

TermDefinition
Third UN Conference Third United Nations Conference on the Law of the Sea
UKHO United Kingdom Hydrographic Office
UNCLOS United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 3 (or "Convention")
UNEP United Nations Environment Programme
Vienna Convention Vienna Convention on the Law of Treaties, Art. 33(1), 22 May 1969, 1155 UNTS 331
Viet Nam Socialist Republic of Viet Nam
Viet Nam's Statement Statement of the Ministry of Foreign Affairs of Viet Nam for the Attention of the Tribunal in the Proceedings between the Republic of the Philippines and the People's Republic of China (14 December 2014)
Written Responses of the Philippines(23 July 2015) Written Responses of the Philippines to the Tribunal's 13 July 2015 Questions (23 July 2015)
Written Responses of the Philippines(11 March 2016) Written Responses of the Philippines to the Tribunal's 5 February 2016 Request for Comments (11 March 2016)
Written Responses of the Philippines on ItuAba (25 April 2016) Responses of the Philippines to the Tribunal's 1 April 2016 Request for Comments on Additional Materials regarding the Status of Itu Aba (25 April 2016)
Written Responses of the Philippines onUKHO Materials (28 April 2016) Responses of the Philippines to the Tribunal's 1 April 2016 Request for Comments on Materials from the Archives of the United Kingdom Hydrographic Office (28 April 2016)
Written Responses of the Philippines onFrench Archive Materials (3 June 2016) Responses of the Philippines to the Tribunal's 26 May 2016 Request for Comments on Materials from the French Archives (3 June 2016)

GLOSSARY OF GEOGRAPHIC NAMES MENTIONED IN THIS AWARD

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.

I. INTRODUCTION

1.
The Parties to this arbitration are the Republic of the Philippines (the "Philippines") and the People's Republic of China ("China") (together, the "Parties").
2.
This arbitration concerns disputes between the Parties regarding the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.
3.
The South China Sea is a semi-enclosed sea in the western Pacific Ocean, spanning an area of almost 3.5 million square kilometres, and is depicted in Map 1 on page 9 below. The South China Sea lies to the south of China; to the west of the Philippines; to the east of Viet Nam; and to the north of Malaysia, Brunei, Singapore, and Indonesia. The South China Sea is a crucial shipping lane, a rich fishing ground, home to a highly biodiverse coral reef ecosystem, and believed to hold substantial oil and gas resources. The southern portion of the South China Sea is also the location of the Spratly Islands, a constellation of small islands and coral reefs, existing just above or below water, that comprise the peaks of undersea mountains rising from the deep ocean floor. Long known principally as a hazard to navigation and identified on nautical charts as the "dangerous ground", the Spratly Islands are the site of longstanding territorial disputes among some of the littoral States of the South China Sea.
4.
The basis for this arbitration is the 1982 United Nations Convention on the Law of the Sea (the "Convention" or "UNCLOS").1 Both the Philippines and China are parties to the Convention, the Philippines having ratified it on 8 May 1984, and China on 7 June 1996. The Convention was adopted as a "constitution for the oceans," in order to "settle all issues relating to the law of the sea," and has been ratified by 168 parties. The Convention addresses a wide range of issues and includes as an integral part a system for the peaceful settlement of disputes. This system is set out in Part XV of the Convention, which provides for a variety of dispute settlement procedures, including compulsory arbitration in accordance with a procedure contained in Annex VII to the Convention. It was pursuant to Part XV of, and Annex VII to, the Convention that the Philippines commenced this arbitration against China on 22 January 2013.
5.
The Convention, however, does not address the sovereignty of States over land territory. Accordingly, this Tribunal has not been asked to, and does not purport to, make any ruling as to which State enjoys sovereignty over any land territory in the South China Sea, in particular with respect to the disputes concerning sovereignty over the Spratly Islands or Scarborough Shoal. None of the Tribunal's decisions in this Award are dependent on a finding of sovereignty, nor should anything in this Award be understood to imply a view with respect to questions of land sovereignty.
6.
Similarly, although the Convention does contain provisions concerning the delimitation of maritime boundaries, China made a declaration in 2006 to exclude maritime boundary delimitation from its acceptance of compulsory dispute settlement, something the Convention expressly permits for maritime boundaries and certain other matters. Accordingly, the Tribunal has not been asked to, and does not purport to, delimit any maritime boundary between the Parties or involving any other State bordering on the South China Sea. To the extent that certain of the Philippines' claims relate to events at particular locations in the South China Sea, the Tribunal will address them only insofar as the two Parties' respective rights and obligations are not dependent on any maritime boundary or where no delimitation of a boundary would be necessary because the application of the Convention would not lead to any overlap of the two Parties' respective entitlements.
7.
The disputes that the Philippines has placed before the Tribunal fall broadly within four categories. First, the Philippines has asked the Tribunal to resolve a dispute between the Parties concerning the source of maritime rights and entitlements in the South China Sea. Specifically, the Philippines seeks a declaration from the Tribunal that China's rights and entitlements in the South China Sea must be based on the Convention and not on any claim to historic rights. In this respect, the Philippines seeks a declaration that China's claim to rights within the 'nine-dash line' marked on Chinese maps are without lawful effect to the extent that they exceed the entitlements that China would be permitted by the Convention.
8.
Second, the Philippines has asked the Tribunal to resolve a dispute between the Parties concerning the entitlements to maritime zones that would be generated under the Convention by Scarborough Shoal and certain maritime features in the Spratly Islands that are claimed by both the Philippines and China. The Convention provides that submerged banks and low-tide elevations are incapable on their own of generating any entitlements to maritime areas and that "[r]ocks which cannot sustain human habitation or economic life of their own" do not generate an entitlement to an exclusive economic zone of 200 nautical miles or to a continental shelf. The Philippines seeks a declaration that all of the features claimed by China in the Spratly Islands, as well as Scarborough Shoal, fall within one or the other of these categories and that none of these features generates an entitlement to an exclusive economic zone or to a continental shelf.
9.
Third, the Philippines has asked the Tribunal to resolve a series of disputes between the Parties concerning the lawfulness of China's actions in the South China Sea. The Philippines seeks declarations that China has violated the Convention by:

(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.

10.
Fourth, the Philippines has asked the Tribunal to find that China has aggravated and extended the disputes between the Parties during the course of this arbitration by restricting access to a detachment of Philippine marines stationed at Second Thomas Shoal and by engaging in the large-scale construction of artificial islands and land reclamation at seven reefs in the Spratly Islands.
11.
China has consistently rejected the Philippines' recourse to arbitration and adhered to a position of neither accepting nor participating in these proceedings. It has articulated this position in public statements and in many diplomatic Notes Verbales, both to the Philippines and to the Permanent Court of Arbitration (the "PCA" or the "Registry"), which serves as the Registry in this arbitration. China's Foreign Ministry has also highlighted in its statements, press briefings, and interviews that it considers non-participation in the arbitration to be its lawful right under the Convention.
12.
The possibility of a party refraining from participating in dispute resolution proceedings is expressly addressed by the Convention, which provides in Article 9 of its Annex VII that the "[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings." The Tribunal has thus held that China's non-participation does not prevent the arbitration from continuing. The Tribunal has also observed that China is still a Party to the arbitration and, pursuant to the terms of Article 296(1) of the Convention and Article 11 of Annex VII, shall be bound by any award the Tribunal issues. The situation of a non-participating Party, however, imposes a special responsibility on the Tribunal. It cannot, in China's absence, simply accept the Philippines' claims or enter a default judgment. Rather, Article 9 requires the Tribunal, before making its award, to satisfy itself "not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law."
13.
Despite its decision not to appear formally at any point in these proceedings, China has taken steps to informally make clear its view that the Tribunal lacks jurisdiction to consider any of the Philippines' claims. On 7 December 2014, China's Foreign Ministry published a "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" ("China's Position Paper").2 In its Position Paper, China argued that the Tribunal lacks jurisdiction because (a) "[t]he essence of the subject-matter of the arbitration is the territorial sovereignty over the relevant maritime features in the South China Sea"; (b) "China and the Philippines have agreed, through bilateral instruments and the Declaration on the Conduct of Parties in the South China Sea, to settle their relevant disputes through negotiations"; and (c) the disputes submitted by the Philippines "would constitute an integral part of maritime delimitation between the two countries." The Chinese Ambassador to the Netherlands has also sent several communications to the individual members of the Tribunal, directly and via the Registry, to draw certain statements of Foreign Ministry officials and others to the attention of the arbitrators, while at the same time making clear that such communications should not be interpreted as China's participation in the arbitral proceedings.
14.
The Tribunal decided to treat the Position Paper and communications from China as equivalent to an objection to jurisdiction and to conduct a separate hearing and rule on its jurisdiction as a preliminary question, except insofar as an issue of jurisdiction "does not possess an exclusively preliminary character." The Tribunal issued its Award on Jurisdiction and Admissibility (the "Award on Jurisdiction") on 29 October 2015, addressing the objections to jurisdiction set out in China's Position Paper, as well as other questions concerning the scope of the Tribunal's jurisdiction. In its Award on Jurisdiction, the Tribunal reached conclusions with respect to seven of the Philippines' fifteen Submissions while deferring decisions on seven other Submissions for further consideration in conjunction with the merits of the Philippines' claims. The Tribunal also requested the Philippines to clarify one of its Submissions. Those questions regarding the scope of the Tribunal's jurisdiction that were not decided in the Award on Jurisdiction have all been considered and are addressed in the course of this Award.
15.
The Tribunal outlined in its Award on Jurisdiction the steps it took to satisfy itself of its jurisdiction, including treating China's communications as a plea on jurisdiction, bifurcating the dispute to have a separate hearing and exchange of questions and answers on issues of jurisdiction and admissibility, probing the Philippines on jurisdictional questions beyond even those in China's Position Paper, and in relation to the seven matters not decided in the Award on Jurisdiction, deferring for later consideration those jurisdictional issues so intertwined with the merits that they lacked an exclusively preliminary character. In the merits phase of the dispute, as set out in more detail elsewhere in this Award, the Tribunal has been particularly vigilant with respect to establishing whether the Philippines' claims are well founded in fact and law. It has done so, for example, by retaining independent experts on technical matters raised by the Philippines' pleadings; inviting comments from both Parties on materials that were not originally part of the record submitted to the Tribunal by the Philippines; and posing questions to the Philippines' counsel and experts before, during, and after the hearing on the merits that was held in The Hague from 24 to 30 November 2015. While China did not attend the hearing, it was provided with daily transcripts and all documents submitted during the course of the hearing and was given an opportunity to comment thereon. In addition to a large delegation from the Philippines, representatives from Australia, the Republic of Indonesia, Japan, Malaysia, Singapore, the Kingdom of Thailand, and the Socialist Republic of Viet Nam attended the hearing as observers.
16.
In this Award, the Tribunal addresses those matters of jurisdiction and admissibility that remained outstanding after the Award on Jurisdiction, as well as the merits of those of the Philippines' claims for which the Tribunal has jurisdiction. The Award is structured as follows.
17.
Chapter II sets out the procedural history of the arbitration, focusing on the events which postdate the issuance of the Award on Jurisdiction. The Chapter demonstrates that, in line with the Tribunal's duty under Article 5 of Annex VII to "assure each party a full opportunity to be heard and to present its case," the Tribunal has communicated to both Parties all developments in this arbitration and provided them with the opportunity to comment on substance and procedure. The Tribunal has consistently reminded China that it remained open to it to participate at any stage, and has taken note of its Position Paper, public statements, and multiple communications from its Ambassador to the Netherlands. The Tribunal has also taken steps, in line with its duty under Article 10 of the Rules of Procedure, to "avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the Parties' dispute."
18.
Chapter III sets out the Philippines' requests for relief, including the fifteen final Submissions as amended on 30 November 2015, with leave from the Tribunal communicated on 16 December 2015. This Chapter notes that while China has not participated in the proceedings, the Tribunal has sought to discern from China's official statements its position on each of the Philippines' claims.
19.
Chapter IV covers preliminary matters. It details the legal and practical consequences of China's non-participation, summarises and incorporates the findings in the Award on Jurisdiction, and addresses the status and effect of that Award and China's reaction to it.
20.
In Chapter V, the Tribunal considers the Philippines' requests for a declaration that the Parties' respective rights and obligations in regard to the waters, seabed, and maritime features of the South China Sea are governed by the Convention (the Philippines' Submission No. 1), and for a declaration that China's claims to sovereign and historic rights with respect to the maritime areas encompassed by the 'nine-dash line' are contrary to the Convention and therefore without lawful effect (the Philippines' Submission No. 2).
21.
In Chapter VI, the Tribunal addresses the Philippines' requests concerning the status of, and maritime entitlements generated by, certain maritime features in the South China Sea (the Philippines' Submissions No. 3 to 7), namely Cuarteron Reef, Fiery Cross Reef, the Gaven Reefs, Johnson Reef, Hughes Reef, McKennan Reef, Mischief Reef, Scarborough Shoal, Second Thomas Shoal, and Subi Reef. In arriving at its decisions on Submissions No. 3, 5 and 7, the Tribunal also addresses in Chapter VI whether any feature in the Spratly Islands constitutes a fully entitled island, capable in its natural condition of sustaining human habitation or an economic life of its own within the meaning of Article 121(3) of the Convention, such as to be entitled to potential maritime zones that could overlap with those of the Philippines.
22.
In Chapter VII, the Tribunal considers the various allegations by the Philippines that China has violated provisions of the Convention, including with respect to:

(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).

23.
In Chapter VIII, the Tribunal considers the Philippines' claim that China has, through its activities near Second Thomas Shoal and its artificial island-building activities at seven coral reefs in the Spratly Islands, aggravated and extended the Parties' disputes since the commencement of the arbitration (the Philippines' Submission No. 14).
24.
Chapter IX examines the Philippines' Submission No. 15 on the future conduct of the Parties and discusses the obligations on both Parties going forward to resolve their disputes peacefully and to comply with the Convention and this Award in good faith.
25.
Chapter X sets out the Tribunal's formal decisions.

II. PROCEDURAL HISTORY

26.
The Award on Jurisdiction recounts in detail the procedural history of the arbitration from its commencement up until the date on which the Award on Jurisdiction was issued. In this Award, the Tribunal will focus on procedural events which occurred after the issuance of the Award on Jurisdiction.
27.
Article 5 of Annex VII to the Convention provides that the Tribunal has a duty to "assur[e] to each party a full opportunity to be heard and to present its case." In line with this duty, and as the procedural history chapters in both Awards demonstrate, the Tribunal has communicated to the Philippines and China all developments in this arbitration and provided them with the opportunity to comment on substance and procedure. The Tribunal consistently reminded China that it remained open to it to participate in these proceedings at any stage. It has also taken steps to ensure that the Philippines is not disadvantaged by China's non-appearance and has conducted the proceedings in line with its duty under Article 10(1) of the Rules of Procedure, "so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the Parties' dispute."

A. INITIATION OF THE ARBITRATION

28.
By Notification and Statement of Claim dated 22 January 2013, the Philippines initiated arbitration proceedings against China pursuant to Articles 286 and 287 of the Convention and in accordance with Article 1 of Annex VII of the Convention. The Philippines stated that it seeks an Award that:

(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

29.
In response, China presented a Note Verbale to the Department of Foreign Affairs of the Philippines on 19 February 2013, rejecting the arbitration and returning the Notification and Statement of Claim to the Philippines.5 In its Note Verbale, China stated that its position on the South China Sea issues "has been consistent and clear" and that "[a]t the core of the disputes between China and the Philippines in the South China Sea are the territorial disputes over some islands and reefs of the Nansha Islands." China noted that "[t]he two countries also have overlapping jurisdictional claims over parts of the maritime area in the South China Sea" and that both sides had agreed to settle the dispute through bilateral negotiations and friendly consultations.

B. CONSTITUTION OF THE TRIBUNAL AND APPOINTMENT OF THE PCA AS REGISTRY

30.
As detailed in the Award on Jurisdiction, the Philippines appointed Judge Rüdiger Wolfrum, a German national, as a member of the Tribunal in accordance with Article 3(b) of Annex VII to the Convention. As China did not appoint an arbitrator, the President of the International Tribunal for the Law of the Sea, pursuant to Articles 3(c) and 3(e) of Annex VII to the Convention, appointed Judge Stanislaw Pawlak, a national of Poland, as the second arbitrator. In accordance with Articles 3(d) and 3(e) of Annex VII to the Convention, the President of the International Tribunal for the Law of the Sea also appointed the remaining three arbitrators, namely Judge Jean-Pierre Cot, a national of France; Professor Alfred H.A. Soons, a national of the Netherlands; and as the Presiding Arbitrator, Judge Thomas A. Mensah, a national of Ghana. The present Tribunal was constituted on 21 June 2013.
31.
On 12 July 2013, the Tribunal issued Administrative Directive No. 1, pursuant to which the Tribunal appointed the Permanent Court of Arbitration as Registry and set in place arrangements for a deposit to cover fees and expenses. On 15 July 2013, the Secretary-General of the PCA informed the Tribunal and the Parties that Ms. Judith Levine, PCA Senior Legal Counsel, had been appointed to serve as Registrar. Copies of Administrative Directive No. 1, as with all subsequent documents issued by the Tribunal and correspondence issued on its behalf by the Registry, were transmitted to the Agent and Counsel for the Philippines, and the Embassy of the People's Republic of China in the Kingdom of the Netherlands (the "ChineseEmbassy"). Throughout the proceedings, the Chinese Embassy has returned the communications and reiterated that "it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines."
32.
On 27 August 2013, the Tribunal issued Procedural Order No. 1, by which it adopted the Rules of Procedure and fixed 30 March 2014 as the date for the Philippines to submit a Memorial that "shall fully address all issues including matters relating to jurisdiction, admissibility, and the merits of the dispute" (the "Memorial").

C. WRITTEN ARGUMENTS

33.
On 11 March 2014, the Tribunal granted leave pursuant to Article 19 of the Rules of Procedure for the Philippines to amend its Statement of Claim, which added a request to determine the status of Second Thomas Shoal.6
34.
On 30 March 2014, pursuant to Procedural Order No. 1, the Philippines submitted its Memorial and accompanying annexes, addressing all aspects of the case including issues of jurisdiction, admissibility, and the merits. The Memorial concluded with 15 specific submissions setting out the relief sought by the Philippines (the "Submissions"), which are reproduced in their final and amended version in Chapter III below.7
35.
On 7 April 2014, the Philippines wrote further to the Tribunal regarding "China's most recent actions in and around Second Thomas (Ayungin) Shoal." This followed an earlier complaint that the Philippines had submitted to the Tribunal on 18 March 2014 concerning "recent actions of China to prevent the rotation and resupply of Philippine personnel stationed at Second Thomas (Ayungin) Shoal." The Philippines wrote again to the Tribunal on 30 July 2014, expressing concern about China's activities at several features in the South China Sea, in particular the land reclamation at McKennan Reef, Hughes Reef, Johnson Reef, the Gaven Reefs, and Cuarteron Reef. These complaints to the Tribunal are set out in more detail at Chapter VIII on aggravation of the dispute.
36.
On 5 December 2014, the Vietnamese Embassy sent to the Tribunal a "Statement of the Ministry of Foreign Affairs of the Socialist Republic of Viet Nam Transmitted to the Arbitral Tribunal in the Proceedings between the Republic of the Philippines and the People's Republic of China" and annexed documents ("Viet Nam's Statement"). Viet Nam's Statement requested that the Tribunal give due regard to the position of Viet Nam with respect to: (a) advocating full observance and implementation of all rules and procedures of the Convention, including Viet Nam's position that it has "no doubt that the Tribunal has jurisdiction in these proceedings"; (b) preserving Viet Nam's "rights and interests of a legal nature"; (c) noting that the Philippines does not request this Tribunal to consider issues not subject to its jurisdiction under Article 288 of the Convention (namely questions of sovereignty and maritime delimitation); (d) "resolutely protest[ing] and reject[ing]" any claim by China based on the "nine-dash line"; and (e) supporting the Tribunal's competence to interpret and apply Articles 60, 80, 194(5), 206, 293(1), and 300 of the Convention and other relevant instruments. Viet Nam stated that none of the maritime features referred to by the Philippines in these proceedings can "generate maritime entitlements in excess of 12 nautical miles since they are low-tide elevations or 'rocks which cannot sustain human habitation or economic life of their own' under Article 121(3) of the Convention." Viet Nam reserved "the right to seek to intervene if it seems appropriate and in accordance with the principles and rules of international law, including the relevant provisions of UNCLOS." Viet Nam also asked to receive copies of all relevant documents in the arbitration.8
37.
On 7 December 2014, the Ministry of Foreign Affairs of the People's Republic of China published a "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," copies of which the Chinese Embassy deposited with the PCA for distribution to members of the Tribunal.9 The Chinese Embassy expressed in a Note Verbale that "[t]he Chinese Government reiterates that it will neither accept nor participate in the arbitration unilaterally initiated by the Philippines. The Chinese Government hereby makes clear that the forwarding of the aforementioned Position Paper shall not be regarded as China's acceptance of or its participation in the arbitration."
38.
The Tribunal conveyed copies of China's Position Paper and Viet Nam's Statement to the Parties on 11 December 2014 and invited their comments.
39.
On 16 December 2014, the Tribunal issued Procedural Order No. 3, which established a timetable for further written submissions from both Parties and annexed a Request for Further Written Argument by the Philippines Pursuant to Article 25(2) of the Rules of Procedure (the "Request for Further Written Argument"). The Request for Further Written Argument included specific questions relating to admissibility, jurisdiction, and the merits of the dispute and invited comments on any relevant public statements made by Chinese Government officials or others.
40.
In a letter accompanying Procedural Order No. 3, the Tribunal invited the Parties' comments on certain procedural matters, including (a) the possible bifurcation of the proceedings to address the Tribunal's jurisdiction as a preliminary matter, (b) the possible appointment of an expert hydrographer, (c) the possibility of a site visit as contemplated in Article 22 of the Rules of Procedure, (d) the appropriate procedure with regard to any amicus curiae submissions that the Tribunal may receive, and (e) the scheduling of a hearing in July 2015.
41.
On 26 January 2015, the Philippines sent the Tribunal its comments on Viet Nam's requests, supporting Viet Nam having access to documents in the interest of transparency. On the same day, the Philippines also (a) conveyed its position that it opposed bifurcation; (b) supported the appointment of a technical expert and made suggestions as to the appropriate profile for an expert; (c) commented that a site visit "would be useful" provided arrangements were made for it to occur "under secure conditions" but acknowledged the "fact that conducting a site visit in the context of this case would present certain challenges, not least because of China's decision not to participate"; (d) commented that any decision on accepting an amicus curiae submission would fall within the Tribunal's inherent power and under Article 1(2) of the Rules of Procedure and suggested "that each amicus submission should be evaluated on its own merits, to determine whether there is 'sufficient reason' for it to be accepted," so long as it does not delay or disrupt the proceedings; and (e) commented on the dates and scope of an oral hearing.
42.
On 6 February 2015, the Chinese Ambassador to the Kingdom of the Netherlands wrote individually to the members of the Tribunal, setting out "the Chinese Government's position on issues relating to the South China Sea arbitration initiated by the Philippines." The letter described China's Position Paper as having "comprehensively explain[ed] why the Arbitral Tribunal... manifestly has no jurisdiction over the case." The letter also stated that the Chinese Government "holds an omnibus objection to all procedural applications or steps that would require some kind of response from China." The letter further clarified that China's non-participation and non-response to any issue raised by the Tribunal "shall not be understood or interpreted by anyone in any sense as China's acquiescence in or non-objection to any and all procedural or substantive matters already or might be raised by the Arbitral Tribunal." The letter further expressed China's "firm opposition" to some of the procedural items raised in the Tribunal's correspondence, such as "intervention by other States," "amicus curiae submissions," and "site visit[s]". Finally, the letter recalled the commitment of China and countries of the Association of Southeast Asian Nations ("ASEAN") to resolving disputes through consultation and negotiation and expressed the hope that "all relevant actors will act in a way that contributes to peaceful settlement of the South China Sea disputes, cooperation among the coastal States of the South China Sea and the maintenance of peace and stability in the South China Sea."
43.
On 17 February 2015, the Tribunal authorised the Registry to provide Viet Nam with a copy of Procedural Order No. 3 and the Tribunal's accompanying Request for Further Written Argument. The Tribunal stated that it would address the permissibility of intervention in these proceedings "only in the event that Viet Nam in fact makes a formal application for such intervention."
44.
The Philippines submitted its Supplemental Written Submission and accompanying annexes (the "Supplemental Written Submission") on 16 March 2015.

D. BIFURCATION OF PROCEEDINGS

45.
On 21 April 2015, the Tribunal issued Procedural Order No. 4, in which it considered the communications of China, including China's Position Paper, effectively to "constitute a plea concerning this Arbitral Tribunal's jurisdiction for the purposes of Article 20 of the Rules of Procedure." The Tribunal thus decided to convene a hearing to consider issues of jurisdiction and admissibility from 7 to 13 July 2015 (the "Hearing on Jurisdiction"). In Procedural Order No. 4, the Tribunal stated that if it determined after the Hearing on Jurisdiction "that there are jurisdictional objections that do not possess an exclusively preliminary character, then, in accordance with Article 20(3) of the Rules of Procedure, such matters will be reserved for consideration and decision at a later stage of the proceedings."
46.
On 21 May 2015, the Tribunal received a letter from the Philippines which described China's "current[] engage[ment] in a massive land reclamation project at various features in the South China Sea" as "deeply troubling to the Philippines" and submitted that such actions were in "violation of the Philippines' rights and in disregard of... China's duty not to cause serious harm to the marine environment." In light of such developments, the Philippines suggested that a merits hearing be provisionally scheduled at the earliest possible date.

E. HEARING ON JURISDICTION AND ADMISSIBILITY

47.
On 2 June 2015, the Tribunal confirmed the schedule for the Hearing on Jurisdiction. The Tribunal advised that the hearing would not be open to the general public, but that it would consider allowing representatives of interested States to attend upon receipt of a written request.
48.
No comments had been received from China by 16 June 2015, the date set by Procedural Order No. 3 for China's comments on the Philippines' Supplemental Written Submission.
49.
In line with its duty to satisfy itself that it has jurisdiction, the Tribunal did not limit the hearing to the issues raised in China's Position Paper, and on 23 June 2015, the Tribunal sent the Parties a list of issues as guidance for the Hearing on Jurisdiction.
50.
Throughout June and July 2015, the Tribunal received requests from several States, interested in the arbitration, for copies of relevant documents and for permission to attend the Hearing on Jurisdiction. After seeking the views of the Parties on each occasion, the Tribunal granted such requests from Malaysia, Japan, Viet Nam, Indonesia, Thailand, and Brunei.
51.
On 1 July 2015, the Chinese Ambassador to the Kingdom of the Netherlands sent a second letter to the members of the Tribunal recalling China's "consistent policy and practice of [resolving] the disputes related to territory and maritime rights and interests with States directly concerned through negotiation and consultation" and noting China's "legitimate right" under the Convention not to "accept any imposed solution or any unilateral resorting to a third-party settlement," a right that it considered the Philippines breached by initiating the arbitration. The Ambassador stated that his letters and the Chinese Government's statements "shall by no means be interpreted as China's participation in the arbitral proceeding" and that China "opposes any moves to initiate and push forward the arbitral proceeding, and does not accept any arbitral arrangements, including the hearing procedures."
52.
The Hearing on Jurisdiction took place from 7 to 13 July 2015 at the Peace Palace in The Hague. A list of attendees is contained in the Award on Jurisdiction. Copies of the daily transcripts, questions from the Members of the Tribunal, answers from the Philippines and all materials submitted during the hearing were made available to both Parties. A press release was issued by the Registry at the close of the hearing and the transcripts were subsequently published.
53.
On 23 July 2015, the Philippines filed written responses to questions posed by the Tribunal. China did not respond to the invitation to submit by 17 August 2015, comments on matters raised during or after the Hearing on Jurisdiction. However, on 24 August 2015, China published "Foreign Ministry Spokesperson Hua Chunying's Remarks on the Release of the Transcript of the Oral Hearing on Jurisdiction by the South China Sea Arbitral Tribunal Established at the Request of the Philippines." The spokesperson recalled that China had "consist[e]ntly expounded its position of neither accepting nor participating in the South China Sea arbitration unilaterally initiated by the Philippines" and that China's Position Paper had "pointed out that the Arbitral Tribunal... has no jurisdiction over the case and elaborated on the legal grounds for China's non-acceptance and non-participation in the arbitration."10

F. PROVISIONAL SCHEDULING OF HEARING ON THE MERITS AND APPOINTMENT OF EXPERT

54.
Article 24(1) of the Arbitral Tribunal's Rules of Procedure provides:

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.

55.
Previously, in December 2014, the Tribunal had invited the Parties' views on the utility and timing of appointing an expert hydrographer, as well as the qualifications appropriate for such an expert. The Chinese Ambassador's letter of 6 February 2015 did not expressly address this question. The Philippines considered it desirable for the Tribunal to appoint as soon as convenient a "knowledgeable, independent, and impartial hydrographer" from whose input "many issues in dispute... would benefit significantly." The Philippines set out a list of appropriate qualifications.
56.
On 21 April 2015, when the Tribunal issued Procedural Order No. 4 bifurcating proceedings, the Tribunal invited the Parties' views as to whether it should, without prejudice to any findings on jurisdiction and admissibility, proceed to: (a) reserve a period of time within the next 6 to 12 months for a subsequent merits hearing should it become necessary; (b) take steps already to ascertain the availability of potential technical experts. In so doing, the Tribunal recalled its duty under Article 10(1) of the Rules of Procedure to "conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the Parties' dispute."
57.
The Philippines, by letter dated 11 May 2015, noted that the week of 23 to 27 November 2015 would be suitable for a hearing on the merits and considered that engaging a technical expert early would help to avoid unnecessary delay and that no prejudice would be suffered as a result of an interim engagement in the event that the Tribunal found that it lacked jurisdiction. China did not comment on either matter.
58.
The Tribunal informed the Parties on 7 August 2015 that, after reviewing a number of candidates, it proposed to appoint Mr. Grant Boyes (a national of Australia) as the Tribunal's expert hydrographer. The Parties were invited to comment on his curriculum vitae, declaration of independence, and draft Terms of Reference. The Philippines reported that it had no objection, but proposed a clarification to the Terms of Reference that "[i]n providing the Arbitral Tribunal with technical assistance... the Expert shall respect that it is the Arbitral Tribunal, and not the Expert, that makes any determination as to legal questions, in particular the application of Article 121(3) of the Convention." With this clarification, and having received no comments from China, the Tribunal and Mr. Boyes finalised the appointment.
59.
On 10 September 2015, the Parties were invited to comment on a provisional schedule for a merits hearing to take place between 24 to 30 November 2015 and also on a request from the Embassy of the Republic of Singapore in Brussels seeking observer status at any future hearing. The Philippines agreed with the proposed schedule and, consistent with its position in support of transparency, expressed that it had no objection to the attendance of a Singaporean delegation at any future hearings. China did not comment on the proposals and, consistent with its practice throughout the proceedings, returned the correspondence to the Registry and reiterated its position of non-acceptance and non-participation.

G. ISSUANCE OF AWARD ON JURISDICTION AND ADMISSIBILITY

60.
On 29 October 2015, the Tribunal issued its Award on Jurisdiction, the key findings of which are summarised in Chapter IV below. The Award, which was unanimous, only addressed matters of jurisdiction and admissibility; it did not address the merits of the Parties' dispute. In the dispositif, the Tribunal:

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

61.
The Tribunal confirmed that it was ready to proceed in late November with a hearing on the merits and any outstanding questions of jurisdiction and admissibility (the "Hearing on the Merits") and stated that it was willing to make appropriate adjustments to the schedule if China decided to participate. The Philippines confirmed the schedule, and China did not comment on it. However, on 30 October 2015, the Chinese Ministry of Foreign Affairs issued a "Statement... on the Award on Jurisdiction and Admissibility of the South China Sea Arbitration by the Arbitral Tribunal Established at the Request of the Republic of the Philippines" as follows:

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

62.
On 6 November 2015, the observer States that had attended the Hearing on Jurisdiction, as well as Brunei and Singapore, were advised of the schedule for the Hearing on the Merits and that they could send delegations of up to five representatives as observers.
63.
As it had done before the Hearing on Jurisdiction, the Tribunal provided on 10 November 2015 an "Annex of Issues the Philippines May Wish to Address" as guidance for the Hearing on the Merits.
64.
On 6 November 2015, the Philippines sought leave to present for examination two experts, Professor Clive Schofield and Professor Kent Carpenter; and on 14 November 2015, sought leave to supplement its written pleadings with additional documentary and testimonial evidence and legal authorities which it intended to reference during the Hearing on the Merits. The Tribunal invited China's comments on the requests by 17 November 2015.
65.
On 18 November 2015, the Tribunal granted both requests, noting that it had not received comments from China, and that the requests were reasonable. The Tribunal also invited the Parties' comments on whether copies of the 10 November 2015 Annex of Issues could be provided to observer States who had confirmed attendance at the Hearing on the Merits (namely Viet Nam, Malaysia, Thailand, Japan, Indonesia and Singapore). Finally, the Tribunal forwarded to the Parties for their comment a Note Verbale from the Embassy of the United States of America, requesting to send a representative to observe the hearing. The Note Verbale explained that "[a]s a major coastal and maritime State, and as a State that is continuing to pursue its domestic Constitutional processes to accede to the United Nations Convention on the Law of the Sea, the United States has a keen interest in the proceedings in light of the important legal issues relating to the law of the sea that are the subject of the arbitration."
66.
The Philippines wrote on 19 November 2015 that it did not object to the U.S. request, nor to providing the Annex of Issues to observer delegations. The Philippines also submitted the additional documentary and testimonial evidence and legal authorities for which it had been granted leave. Copies were provided to the Chinese Embassy.
67.
On 23 November 2015, the Tribunal communicated to the Parties and the U.S. Embassy that it had decided that "only interested States parties to the United Nations Convention on the Law of the Sea will be admitted as observers" and thus could not accede to the U.S. request. The same day, the Tribunal received a Note Verbale from the United Kingdom's Embassy in the Netherlands applying for "neutral observer status" at the Hearing on the Merits and explaining that "[a]s a State Party to the [Convention], and with a strong interest in the maintenance of peace and stability in the South China Sea, underpinned by respect for, and adherence to, international law, the United Kingdom has been closely following proceedings in the arbitration and has an ongoing interest in developments." The request was forwarded to the Parties for their comment, and the Philippines stated it had no objection to it.
68.
On 24 November 2015, the Tribunal received a request from the Australian Embassy to observe the Hearing on the Merits. The request stated that "Australia has taken a close interest in this case. Australia has the third largest maritime jurisdiction in the world, and a significant proportion of our global seaborne trade passes through the South China Sea. As one of the original States Parties to [the Convention], Australia has an abiding national interest in promoting the rule of law regionally and globally, including through the peaceful settlement of disputes in accordance with international law." The request was forwarded to the Parties for their immediate comment. The Philippines did not object to the Australian request. The Tribunal informed the embassies of Australia and the United Kingdom that their respective requests to send observer delegations had been granted, and so advised the Parties. The United Kingdom, however, informed the Registry that it would not be attending the proceedings.

H. HEARING ON THE MERITS

69.
The Hearing on the Merits took place in two rounds on 24, 25, 26, and 30 November 2015 at the Peace Palace in The Hague, the Netherlands. As with the Hearing on Jurisdiction, it was not open to the general public. A press release was issued upon its commencement.
70.
The following were present at the Hearing:

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

71.
Oral presentations were made by the then Solicitor General Florin T. Hilbay, then Agent of the Philippines; Secretary Albert F. del Rosario, the then Secretary of Foreign Affairs of the Philippines; Mr. Paul S. Reichler and Mr. Lawrence H. Martin of Foley Hoag LLP, Washington, D.C.; Professor Bernard H. Oxman of the University of Miami; Professor Philippe Sands QC of Matrix Chambers, London; Professor Alan E. Boyle of Essex Court Chambers, London; and Mr. Andrew B. Loewenstein of Foley Hoag LLP, Boston.
72.
The Registry delivered daily transcripts to the Philippines' delegation and to the Chinese Embassy, along with copies of all materials submitted by the Philippines during the course of their oral presentations.
73.
During the first round of oral argument, several questions were posed by individual arbitrators and answered by the Philippines. On 27 November 2015, the Tribunal circulated to the Parties (a) "Questions for the Philippines to Address in the Second Round," (b) "Questions for Professor Schofield," and (c) "Questions for Professor Carpenter." Copies of the questions were subsequently made available to the observer delegations.
74.
On 30 November 2015, during the second round of the hearing, the Philippines responded to the Tribunal's written questions circulated on 27 November 2015, as well as to oral questions posed by individual arbitrators. Professor Schofield and Professor Carpenter also responded to the written questions put to them respectively. The Philippines' then Secretary for Foreign Affairs addressed the Tribunal with concluding remarks, in which he recalled, on the 70th anniversary of the United Nations, that two "centrepieces" of the UN order were the sovereign equality of States and the obligation to settle disputes by peaceful means. He also noted the 40th anniversary of the establishment of diplomatic relations between the Philippines and China and stated that it was for the preservation of the valued friendship between the two States that the Philippines had initiated this arbitration. He expressed his belief that this arbitration "benefits everyone" because for China "it will define and clarify its maritime entitlements," for the Philippines, "it will clarify what is ours, specifically our fishing rights, rights to resources, and rights to enforce our laws within our EEZ" and for the rest of the international community, "it will help ensure peace, security, stability and freedom of navigation and overflight in the South China Sea." He expected the arbitration to "be instructive for other States to consider the dispute settlement mechanism under UNCLOS as an option for resolving disputes in a peaceful manner." He summarised the key legal arguments and expressed hope that this arbitration would help "promote[] peace, security and good neighbourliness" and accord to the rule of law the "primacy that the founders of the United Nations and the drafters of UNCLOS envisioned."13
75.
The Agent for the Philippines formally presented the Philippines' fifteen final Submissions.14 The Presiding Arbitrator outlined the next steps in the proceeding, including an invitation to both Parties to submit by 9 December 2015 their corrections to the transcript, an invitation to the Philippines to submit by 18 December 2015 any further responses to questions posed during the second round, and an invitation to China to comment in writing by 1 January 2016 on anything said during the Hearing on the Merits or submitted subsequently. The Presiding Arbitrator then declared the Hearing on the Merits closed.
76.
In keeping with its prior practice and in accordance with Article 16 of the Rules of Procedure, the Registry issued a Press Release after the closure of the Hearing on the Merits.

I. POST-HEARING PROCEEDINGS

77.
The Agent for the Philippines submitted in written form the Final Submissions of the Republic of the Philippines on 30 November 2015.
78.
By letter dated 1 December 2015, the Tribunal noted that the Philippines' final Submissions reflected three amendments—to Submissions No. 11, 14 and 15—requested by the Philippines in the course of the Hearing on the Merits.15 With respect to Submission No. 11, on failure to protect and preserve the marine environment, the Philippines added references to Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef. With respect to Submission No. 14, on China's alleged aggravation and extension of the dispute, the Philippines added reference to "dredging, artificial island-building and construction activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef." In response to the Tribunal's direction in paragraph 413(I) of the Award on Jurisdiction to "clarify the content and narrow the scope of its Submission 15," the Philippines changed the text of Submission No. 15 to seek a declaration that "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." China was invited to provide any comments on the requested amendments by 9 December 2015.
79.
On 14 December 2015, the Philippines submitted documents that had been referenced or requested during the hearing. These included electronic versions of materials displayed by Professor Schofield, additional legal authorities, and observations by Dr. Robert Smith and EOMAP satellite bathymetry analysis pertaining to the nature of certain maritime features located between Thitu and Subi Reef.
80.
In accordance with Article 19 of the Rules of Procedure, on 16 December 2015, the Tribunal granted leave to the Philippines to make the amendments incorporated in its final Submissions. It also informed the Parties that the final reviewed and corrected transcripts of the Hearing on the Merits would be published on the PCA's website and reminded China of its opportunity to comment in writing by 1 January 2016 on anything said during the hearing or subsequently filed by the Philippines.
81.
On 18 December 2015, the Philippines filed a supplementary response to one of Judge Wolfrum's questions posed during the Hearing on the Merits, referring to additional evidence about the alleged taking of giant clams and sea turtles by Chinese fishermen and alleged environmental damage to reefs.
82.
On 21 December 2015, an official spokesperson for the Chinese Ministry of Foreign Affairs commented on the publication of the transcript of the Hearing on the Merits as follows:

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

83.
On 11 January 2016, the Tribunal noted that China had not submitted any comments on what was said during the Hearing on the Merits or subsequently filed by the Philippines. The Tribunal also conveyed a request the Registry had received from the Japanese Embassy for copies of any relevant new documents in relation to the Hearing on the Merits. The Tribunal invited the Parties' views on the documents that it proposed to provide to the observer States. The Philippines had no objection to the proposed items being provided to the observer States.

J. FURTHER EVIDENCE, EXPERT REPORTS, AND COMMUNICATIONS FROM CHINA AND OTHERS

84.
On 5 February 2016, the Tribunal sent a letter to the Parties informing them that, in reviewing the evidentiary record and pursuing its deliberations, it had decided that it would benefit from further evidence and clarifications from the Parties, and from the views of independent experts. The Tribunal referred to Article 22(2) of the Rules of Procedure, which provides for the Tribunal to "take all appropriate measures in order to establish the facts"; Article 22(4), which provides that the Tribunal may "at any time during the arbitral proceedings, require the Parties to produce documents, exhibits or other evidence"; and Article 24 which provides for the Tribunal to appoint independent experts to report on specific issues. The Tribunal's letter addressed the following matters:

(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.

85.
The Tribunal proposed on 26 February 2016 to appoint Captain Gurpreet Singh Singhota, a national of the United Kingdom, as an expert on navigational safety issues and invited the Parties' comments on his qualifications, declaration of independence and draft Terms of Reference. On 29 February 2016, the Tribunal proposed to appoint Dr. Sebastian Ferse, a national of Germany, as an expert on coral reef issues and invited the Parties' comments on his qualifications, declaration of independence and draft Terms of Reference. Noting the size and complexity of the coral reef expert's mandate, the Tribunal mentioned that it was considering the appointment of a second expert on coral reef ecology.
86.
The Philippines reported that it approved of the proposed appointments and had no comments. On 11 March 2016, the Philippines submitted its comments concerning additional materials relating to (a) evidence relevant to Submissions No. 11 and 12(b) on protection of the marine environment, and (b) materials relevant to the status of features that may generate overlapping entitlements. Its comments were accompanied by 30 new annexes, including two new expert reports, by Dr. Ryan T. Bailey on "Groundwater Resources Analysis of Itu Aba" and by Dr. Peter P. Motavalli on "Soil Resources and Potential Self-Sustaining Agricultural Production on Itu Aba."
87.
China did not comment on the proposed appointment of either expert candidate. China did not respond to the Tribunal's invitation to supply information about environmental impact assessments and did not comment on the new materials about Itu Aba.
88.
On 15 March 2016, the Tribunal invited China to comment on the new materials filed by the Philippines and informed the Parties that it was proceeding with the appointments of Captain Singhota and Dr. Ferse as experts under Article 24 of the Rules of Procedure.
89.
On 1 April 2016, the Tribunal sent three letters to the Parties:

(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."

90.
On 12 April 2016, the Tribunal informed the Parties that it intended to appoint two additional coral reef experts to collaborate with Dr. Ferse, namely Professor Peter Mumby (a national of the United Kingdom and Australia) and Dr. Selina Ward (a national of Australia). Their curricula vitae, declarations of independence, and draft Terms of Reference were sent to the Parties. The Philippines approved of their appointments and China did not respond.
91.
On 18 April 2016, the Tribunal sent to the Parties the expert opinion of Captain Singhota on navigational safety issues and, in accordance with Article 24(4) of the Rules of Procedure, invited the Parties to express any comments on the report in writing. The Philippines expressed that it had no comments, and China did not respond.
92.
On 25 April 2016, the Philippines filed its responses to the Tribunal's request for comments on additional materials regarding the status of Itu Aba. While the Philippines considered that it would have been "within its rights in requesting, and the Tribunal would be well-justified in finding, that these materials should be disregarded," it nevertheless "recognized the exceptional difficulties China's non-appearance has created for the Tribunal" and chose "not to object to the Tribunal's consideration of Taiwan's most recent materials should the Tribunal itself find it appropriate to do so."21 The Philippines' comments were accompanied by two revised translations and 21 new annexes, including supplemental expert reports from Dr. Bailey and Dr. Motavalli. The Philippines submitted that: (a) Taiwan's newest materials "must be treated with caution," (b) "[n]o further attempts by Taiwan to influence the Tribunal's deliberations should be entertained," (c) "[i]n any event, Taiwan's latest submissions only prove that Itu Aba has never supported genuine, sustained human habitation or economic life of its own" as explained in part by the "fact that Itu Aba lacks the freshwater and soil resources to do so," (d) the historical account of China's alleged presence in the South China Sea in "Taiwan's Position Paper only underscores the baseless nature of China's claim to exclusive historical rights to the maritime areas located within the nine-dash line," and (e) the "PRC's Spokesperson's remarks make it clear that Taiwan is alone among the littoral authorities in the South China Sea in claiming that Itu Aba is capable of sustaining human habitation and economic life of its own."
93.
On 26 April 2016, the Philippines filed its responses to Dr. Ferse's request for clarification on the issue of reef damage attributable to dredging versus clam shell extraction. This included a letter and updated report from Professor John W. McManus, and a supplementary declaration from Professor Carpenter.
94.
On 28 April 2016, the Philippines filed its response to the UKHO materials, and submitted that "the documents and survey materials confirm the Philippines' characterization of the relevant features... as a submerged feature, a low-tide elevation, or an Article 121(3) rock."
95.
On 29 April 2016, the Tribunal sent the Parties the independent expert opinion of Dr. Ferse, Professor Mumby, and Dr. Ward on the "Assessment of the Potential Environmental Consequences of Construction Activities on Seven Reefs in the Spratly Islands in the South China Sea." Pursuant to Article 24(4) of the Rules of Procedure, the Parties had an opportunity to express in writing their respective comments on the report. The Philippines expressed that it had no comments, and China did not respond.
96.
On 12 May 2016, the Director-General of the Chinese Department of Treaty and Law of the Chinese Ministry of Foreign Affairs, Xu Hong, gave a "Briefing on the South China Sea Arbitration Initiated by the Philippines." He made the following overview statement on "the relevant policies and positions of the Chinese Government, especially from the international law perspective," before answering questions from the media:

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

97.
On 20 May 2016, representatives from the Chinese Embassy in The Hague presented to the Registry a letter from the new Ambassador, with the request that it be delivered to each member of the Tribunal. The letter enclosed for reference, the "relevant position expounded on 20 May 2016 by the Spokesperson of the Ministry of Foreign Affairs of the People's Republic of China on the Philippines' South China Sea arbitration." The Ambassador reiterated that "China does not accept or participate in the Philippines' South China Sea arbitration. This position is consistent and clear. My letter shall not be considered as China's plea or participation in the Philippines' South China Sea arbitration." The enclosed statement of the Foreign Ministry Spokesperson was a response to a question as follows:

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

98.
The Registry forwarded the Chinese Ambassador's letter to the members of the Tribunal and to the Philippines.
99.
On 26 May 2016, the Tribunal informed the Parties that it considered it appropriate to consult French material from the 1930s in order to gain a more complete picture as to the natural conditions of the South China Sea features at that time. The Tribunal provided the Parties with documents obtained from the Bibliotheque Nationale de France (the National Library of France) and from the Archives Nationales d'Outre-Mer (the National Overseas Archives) and invited their comments. The Philippines commented on 3 June 2016 and supplied supplementary materials and a further expert report from Dr. Motavalli with its response. China was invited to, but did not, comment on the Philippines' response.
100.
The new Chinese Ambassador sent a second letter to the individual members of the Tribunal on 3 June 2016, enclosing a statement expounded by a Foreign Ministry Spokesperson in response to a question about the status of Itu Aba. The Ambassador emphasised again that his letter does not constitute a plea or participation in the arbitration. The enclosed statement of the Foreign Ministry Spokesperson was the following:

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

101.
In response to an invitation from the Tribunal, the Philippines commented on the Ambassador's letter and accompanying statement on 10 June 2016. The Philippines submitted that there is no basis in the Convention for China's assertion "based on the Nansha Islands as a whole" to a territorial sea, exclusive economic zone and continental shelf. With respect to the Geng Lu Bu, the Philippines observed that this "Manual of Sea Routes" is reported to be a navigation guide for "Hainan fishermen" consistent with evidence that China's fishermen "did no more than sojourn temporarily" at Itu Aba, and that in any event China had failed to demonstrate any evidence by citation to specific text or supporting documentation that would constitute proof as to the characterisation of Itu Aba.
102.
On 8 June 2016, representatives from the Chinese Embassy delivered to the Registry a third letter from the Chinese Ambassador to the individual members of the Tribunal. The letter, which was said not to constitute a plea or participation in the arbitration, enclosed a "Statement of the Ministry of Foreign Affairs of the People's Republic of China on Settling Disputes Between China and the Philippines in the South China Sea through Bilateral Negotiation." The statement laid out jurisdictional points previously made by China in other statements, including the Position Paper, under the following headings:

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

103.
On 10 June 2016, a fourth letter from the Chinese Ambassador was delivered to the Registry, addressed to the individual members of the Tribunal, enclosing a statement by the Chinese Society of International Law, entitled "The Tribunal's Award in the 'South China Sea Arbitration' Initiated by the Philippines is Null and Void." The statement repeated many of the same jurisdictional points that were covered in the Position Paper and dealt with in the Award on Jurisdiction. Copies of the Chinese Ambassador's correspondence of 8 and 10 June 2016 were forwarded to the Philippines for information.
104.
During the same period that the Tribunal received the four most recent letters from the Chinese Ambassador, the Registry received copies or was made aware of various unsolicited statements and commentaries from Chinese associations and organisations pertaining to issues covered in the Award on Jurisdiction. These statements, however, were not provided to the Tribunal by the Chinese Government or any Party to the Convention. The statements were concerned with matters of jurisdiction already decided by the Tribunal and did not offer to assist the Tribunal on issues in dispute in the present phase of the proceedings.
105.
On 23 June 2016, the Embassy of Malaysia in the Netherlands sent to the Tribunal two Notes Verbales, drawing attention to an issue with certain maps contained in the Award on Jurisdiction (which had been extracted, for illustrative purposes, from the Philippines' Memorial), and requesting that the Tribunal show due regard to the rights of Malaysia ("Malaysia's Communication"). The Malaysian Embassy emphasised that it was not seeking to intervene in the proceedings. The Tribunal sent copies of Malaysia's Communication to the Parties and requested any comments by 28 June 2016. The Philippines commented on 28 June 2016. With respect to the maps, the Philippines noted that it had presented the maps in such a way as to preserve its own claim but would leave the issue to the Tribunal's discretion. With respect to Malaysia's assertions that issues in dispute may directly or indirectly affect its rights and interests, the Philippines noted that this question had already been dealt with by the Tribunal. The Philippines considered Malaysia's Communication therefore to be "without merit" and also pointed out that it was "untimely", in light of the fact that Malaysia had been an observer since 10 June 2015 and until now made no effort to raise its concerns. China did not comment on Malaysia's Communication. On 29 June 2016, the Tribunal forwarded the Philippines' comments to China and acknowledged to Malaysia that it had received and taken note of its Communication.26

K. NOTIFICATION, PUBLICATION, AND TRANSLATION OF AWARD

106.
By advance notification that was published on the PCA's website and sent directly to the Parties, observer States and interested media, the Tribunal advised on 29 June 2016, that it would be issuing this Award on 12 July 2016.
107.
On 1 July 2016, the Philippines informed the Tribunal, in accordance with Article 4(2) of the Rules of Procedure, that as of 30 June 2016 Mr. Jose C. Calida had been appointed Solicitor General of the Philippines and had also been appointed to serve as Agent in the arbitration. The Philippines requested that future correspondence be directed to him and Attorney Anne Marie L. Corominas. A copy of the Philippines' letter was forwarded to China for information.
108.
The Tribunal has authorised the Registry to publish a press release in English (official version), French, and Chinese at the same time as the issuance of the present Award.
109.
In accordance with Article 15(2) of the Rules of Procedure, the Tribunal has instructed that, in due course, the Registry shall arrange for the translation of the Award on Jurisdiction and the present Award into Chinese, to be made available to the public. The English version of the Awards, however, shall remain the only authentic version.

L. DEPOSITS FOR COSTS OF THE ARBITRATION

110.
Article 33 of the Rules of Procedure states that the PCA may from time to time request the Parties to deposit equal amounts as advances for the costs of the arbitration. Should either Party fail to make the requested deposit within 45 days, the Tribunal may so inform the Parties in order that one of them may make the payment. The Parties have been requested to make payments toward the deposit on three occasions. While the Philippines paid its share of the deposit within the time limit granted on each occasion, China has made no payments toward the deposit. Having been informed of China's failure to pay, the Philippines paid China's share of the deposit.

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

111.
In accordance with Article 33(4) of the Rules of Procedure, the Registry will "render an accounting to the Parties of the deposits received and return any unexpended balance to the Parties" after the issuance of this Award.

III. RELIEF REQUESTED AND SUBMISSIONS

112.
On 30 November 2015, the Agent for the Philippines presented the Philippines' Final Submissions, requesting the Tribunal to adjudge and declare that:

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

113.
As described above at paragraphs 78 and 80, on 16 December 2015 in accordance with Article 19 of the Rules of Procedure, having sought the views of China, the Tribunal granted leave to the Philippines to make the amendments incorporated in its final Submissions.
114.
While China does not accept and is not participating in this arbitration, it has stated its position that the Tribunal "does not have jurisdiction over this case."29
115.
In accordance with its decision not to participate, China did not file a Counter-Memorial, has not stated its position on the particular Submissions of the Philippines, and has not commented on specific substantive issues when given the opportunity to do so. China pointed out that its Position Paper "does not express any position on the substantive issues related to the subject-matter of the arbitration initiated by the Philippines."30 Nevertheless, as described in relevant portions of the Award, in proceeding to assess the merits of the respective Submissions, the Tribunal has sought to take into account China's position to the extent it is discernible from China's official statements and conduct.

IV. PRELIMINARY MATTERS

A. THE LEGAL AND PRACTICAL CONSEQUENCES OF CHINA'S NON-PARTICIPATION

116.
As is evident from the procedural history recounted in Chapter II, China has consistently rejected the Philippines' recourse to arbitration and has adhered to a position of non-acceptance and non-participation in the proceedings. China did not participate in the constitution of the Tribunal, it did not submit a Counter-Memorial in response to the Philippines' Memorial, it did not attend the Hearings on Jurisdiction or on the Merits, it did not reply to the Tribunal's invitations to comment on specific issues of substance or procedure, and it has not advanced any of the funds requested by the Tribunal toward the costs of the arbitration. Throughout the proceedings, China has rejected and returned correspondence from the Tribunal sent by the Registry, reiterating on each occasion "that it does not accept the arbitration initiated by the Philippines."
117.
The Convention, however, expressly acknowledges the possibility of non-participation by one of the parties to a dispute and confirms that such non-participation does not constitute a bar to the proceedings. Article 9 of Annex VII provides:

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.

118.
Pursuant to Article 9, the Philippines expressly requested that these proceedings continue.31 The Tribunal has continued the proceedings, confirming that despite its non-appearance, China remains a party to the arbitration, with the ensuing rights and obligations, including that it will be bound under international law by any decision of the Tribunal.32

1. Steps Taken to Ensure Procedural Fairness to Both Parties

119.
Article 9 of Annex VII seeks to balance the risks of prejudice that could be suffered by either party in a situation of non-participation. First, it protects the participating party by ensuring that proceedings will not be frustrated by the decision of the other party not to participate. Second, it protects the rights of the non-participating party by ensuring that a tribunal will not simply accept the evidence and claims of the participating party by default.33
120.
The respective procedural rights of the parties are further articulated in Article 5 of Annex VII, which provides that "the arbitral tribunal shall determine its own procedure, assuring to each party a full opportunity to be heard and to present its case."34
121.
The Tribunal has taken a number of measures to safeguard the procedural rights of China. For example, it has:

(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.

122.
The Tribunal has also taken measures to safeguard the Philippines' procedural rights. As noted by the International Tribunal for the Law of the Sea in Arctic Sunrise, a participating party "should not be put at a disadvantage because of the non-appearance of the [non-participating party] in the proceedings."35
123.
One possible disadvantage of non-participation is delay. While ensuring equality of opportunity, the Tribunal has also complied with the obligation in Article 10 of the Rules of Procedure to "conduct the proceedings so as to avoid unnecessary delay and expense and to provide a fair and efficient process for resolving the Parties' dispute."
124.
A second possible disadvantage about which the Philippines expressed concern was that China's non-appearance might deprive it of "an opportunity to address any specific issues that the Arbitral Tribunal considers not to have been canvassed, or to have been canvassed inadequately."36 The Tribunal has taken various steps to ensure both Parties the opportunity to address specific issues of concern to the Tribunal's decision-making. For example, the Tribunal introduced the following process into Article 25(2) of its Rules of Procedure:

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

125.
The Tribunal implemented the above procedure by issuing a Request for Further Written Argument on 16 December 2014, containing 26 questions pertaining to jurisdiction and the merits. Further, on 23 June 2015, in advance of the Hearing on Jurisdiction, and on 23 November 2015, in advance of the Hearing on the Merits, the Tribunal sent to the Parties lists of specific issues which it wished to be addressed. During both hearings, following the first round of arguments, the Tribunal circulated lists of questions to be addressed during the second round.
126.
A third perceived disadvantage that the participating party may face as a result of non-participation is being put in the "position of having to guess" what the non-participating party's arguments might be and to "formulate arguments for both States."38 The Philippines suggested that the Tribunal could discern China's position on the issues raised by the Philippines' Submissions by consulting communications from China's officials, statements of those associated with the Government of China, and academic literature by individuals closely associated with Chinese authorities.39 The Tribunal has done so, cognisant of the practice of international courts and tribunals of taking notice of public statements or informal communications made by non-appearing Parties.40
127.
Concerns about the Philippines "having to guess what China's arguments might be" were to some extent alleviated, at least with respect to jurisdiction, by China's decision to make public its Position Paper in December 2014. The Position Paper was followed by two letters from the former Chinese Ambassador, addressed to the members of the Tribunal, and four more-recent letters from the current Chinese Ambassador. The latter directed the Tribunal's attention to statements of the Chinese Ministry of Foreign Affairs Spokespersons and other public statements and materials. Indeed, the Tribunal has taken note of the regular press briefings of the Chinese Ministry of Foreign Affairs, which frequently touch on issues before the Tribunal, and occasionally contain statements exclusively dedicated to aspects of the arbitration. On the very question of China's non-participation, the Director-General of the Department of Treaty and Law at the Chinese Ministry of Foreign Affairs gave the following remarks in response to questions about why China did not participate and whether, having renounced the opportunity to appear before the Tribunal to contest jurisdiction, China should "bear the consequences":

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

128.
It is in relation to the fourth point above, "the Tribunal's obligation under international law to establish that it does have jurisdiction over the disputes" to which the Tribunal next turns.

2. Steps Taken by the Tribunal to Satisfy Itself that It Has Jurisdiction and that the Claim is Well Founded in Fact and Law

129.
China's non-participation imposes a special responsibility on the Tribunal. There is no system of default judgment under the Convention. As will be apparent in the course of this Award, the Tribunal does not simply adopt the Philippines' arguments or accept its assertions untested. Rather, under the terms of Article 9 of Annex VII, the 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" before making any award.
130.
The Tribunal has actively sought to satisfy itself as to whether it has jurisdiction over the dispute. Following China's decision not to file a Counter-Memorial, the Tribunal requested the Philippines under Article 25 of the Rules of Procedure to provide further written argument on certain jurisdictional questions and posed questions to the Philippines both prior to and during the Hearing on Jurisdiction. China's Position Paper in December 2014 expounded three main reasons why it considers that the Tribunal "does not have jurisdiction over this case."42 The Tribunal decided to treat the Position Paper and certain communications from China as constituting, in effect, a plea concerning jurisdiction, which under the Rules of Procedure meant conducting a hearing and issuing a preliminary ruling dedicated to jurisdiction.43 However, in line with its duty to satisfy itself that it has jurisdiction, the Tribunal did not limit the hearing to the three issues raised by China. It also considered, and invited the Parties to address, other possible jurisdictional questions. These procedures led to the Tribunal's Award on Jurisdiction, issued on 29 October 2015 (a summary of which appears at paragraphs 145 to 164 below).
131.
With respect to the duty to satisfy itself that the Philippines' claims are well founded in fact and law, the Tribunal notes that Article 9 of Annex VII does not operate to change the burden of proof or to raise or lower the standard of proof normally expected of a party to make out its claims or defences.44 However, as a practical matter, Article 9 has led the Tribunal to take steps to test the evidence provided by the Philippines and to augment the record by seeking additional evidence, expert input, and Party submissions relevant to questions arising in this merits phase, including as to the status of features in the South China Sea, the allegations concerning violations of maritime safety obligations, and claims about damage to the marine environment. These steps are described below.
132.
First, pursuant to the procedure established in Article 25 of the Rules of Procedure, in the Tribunal's Request for Further Written Argument of 16 December 2014, the Tribunal noted the Philippines' argument that "none of the features in the Spratlys—not even the largest among them—is capable of generating entitlement to an EEZ or a continental shelf."45 The Tribunal invited the Philippines to "provide additional historical and anthropological information, as well as detailed geographic and hydrographic information regarding" Itu Aba, Thitu, and West York."46 The Tribunal also invited the Philippines to provide written argument on the status of any maritime feature claimed by China—"whether or not occupied by China"—that could potentially give rise to an entitlement to an exclusive economic zone or continental shelf extending to any of Mischief Reef, Second Thomas Shoal, Subi Reef, Scarborough Shoal, Reed Bank, or the areas designated as Philippine oil blocks "Area 3" and "Area 4". In so doing, the Philippines was invited to provide "historical and anthropological information, as well as detailed geographic and hydrographic information" regarding the following features: Spratly Island, North-East Cay (North Danger Reef); South-West Cay (North Danger Reef); Nanshan Island; Sand Cay; Loaita Island; Swallow Reef; Amboyna Cay; Flat Island; Lankiam Cay; Great Discovery Reef; Tizard Bank reefs; and Union Bank reefs.47 In response to this request, the Philippines submitted with its Supplemental Written Submission an atlas and an expert report by Professor Clive Schofield, Professor J.R.V. Prescott, and Mr. Robert van der Poll entitled "An Appraisal of the Geographical Characteristics and Status of Certain Insular Feature in the South China Sea" (the "Schofield Report"). The atlas provided for each feature: a geographic and hydrographic description, a satellite image, photographs, excerpts from various sailing directions and nautical charts, and a summation of the pertinent geographic and hydrographic information by geographer Dr. Robert W. Smith.48
133.
Second, in accordance with Article 24 of the Rules of Procedure, and after seeking the views of the Parties, the Tribunal retained an independent technical expert—Mr. Grant Boyes—to assist it in "reviewing and analysing geographic and hydrographic information, photographs, satellite imagery and other technical data in order to enable the Arbitral Tribunal to assess the status (as a submerged feature, low-tide elevation, or island)" of the features named in the Philippines' Submissions or any other such feature determined to be relevant during the course of the reference. While the appointment of hydrographic experts is common practice in Annex VII arbitrations,49 in light of China's non-participation, Mr. Boyes was also tasked with assisting with a "critical assessment of relevant expert advice and opinions submitted by the Philippines."50
134.
Third, the Tribunal posed to Professor Schofield a series of written and oral questions during the Hearing on the Merits, about his testimony, his earlier writings, and specific points in the Schofield Report.51
135.
Fourth, the Tribunal similarly posed written and oral questions to Professor Kent Carpenter, who submitted two expert reports for the Philippines about the environmental consequences of China's conduct in the South China Sea.52 Professor Carpenter's second report was submitted, inter alia, to adequately address the issues identified by the Tribunal in its "Annex of Issues" circulated in advance of the Hearing on the Merits.53
136.
Fifth, in light of China's non-participation, the Tribunal decided to appoint coral reef ecology experts to provide their independent opinion on the impact of Chinese construction activities on the coral reef systems in the Spratly Islands. A team composed of Dr. Sebastian Ferse, Professor Peter Mumby, and Dr. Selina Ward prepared a report (the "Ferse Report"), on which both sides were invited to comment. In the course of preparing the report, some follow-up questions were put to the Philippines about sources relied on in the Carpenter Report, a process through which the Tribunal gained yet further information.54
137.
Sixth, the Tribunal has made efforts to understand China's stance on environmental issues, including having (a) asked the Philippines and Professor Carpenter to identify any statements made by Chinese Government officials that suggest China had taken into account issues of ecological preservation and followed environmental protection standards in connection with its construction work;55 (b) presented to the Parties for their comment a number of official Chinese statements and reports from Chinese State-sponsored scientific institutes concerning the ecological impact of the construction work;56 (c) specifically and directly asked China whether it had undertaken an environmental impact study and if so, for the Tribunal to be provided with a copy.57 While China declined to comment, the Tribunal has taken note of its recent official statements to the effect that "[a]s owners of the Nansha Islands, China cares about protecting the ecological environment of relevant islands, reefs and waters more than any other country, organization or people of the world" and that "[b]ased on thorough studies and scientific proof, China adopts dynamic protection measures along the whole process so as to combine construction with ecological environmental protection and realize sustainable development of islands and reefs."58 As noted below in Chapter VII.D, neither the Tribunal nor its experts, however, have managed to retrieve copies of such studies.
138.
Seventh, in relation to the Philippines' Submission No. 13, alleging dangerous manoeuvring by Chinese law enforcement vessels in breach of the Convention's maritime safety obligations, the Tribunal considered it appropriate to appoint an expert to review the available documentary material and draw independent conclusions. In accordance with Article 24 of the Rules of Procedure and having consulted the Parties, the Tribunal commissioned a report by Captain Gurpreet Singhota (the "Singhota Report").
139.
Eighth, in accordance with Article 22 of the Rules of Procedure, which provides that the Tribunal may "take all appropriate measures in order to establish the facts," and Article 25, which states that the Tribunal "may take whatever other steps it may consider necessary... to afford to each of the Parties a full opportunity to present its case," the Tribunal has on several occasions invited the Parties to comment on various sources concerning the prevailing conditions on features in the South China Sea, including some materials in the public domain emanating from the Taiwan Authority of China.59 The Philippines has responded with comments both during the hearings and in written submissions after the hearings.60 On 11 March 2016, the Philippines submitted written comments, accompanied by two new expert reports on soil and water quality at Itu Aba.61 On 25 April 2016, the Philippines responded to an invitation to comment further on additional Taiwanese materials. While the Philippines considered that it would have been "within its rights in requesting, and the Tribunal would be well-justified in finding, that these materials should be disregarded," it nevertheless "recognize[d] the exceptional difficulties China's non-appearance has created for the Tribunal" and chose "not to object to the Tribunal's consideration of Taiwan's most recent materials."62 Accordingly, the Philippines provided comments, translations and exhibits, and supplementary expert reports. China did not submit comments to the Tribunal in response to these materials, though its public statements on relevant questions have been noted.63
140.
Ninth, the Tribunal sought the Parties' views on records obtained from the UKHO. Prior to the Hearing on the Merits, the Tribunal had requested the Philippines to confirm "whether it has sought and been able to obtain copies of hydrographic survey plans (fair charts), relating in particular to those surveys undertaken by the United Kingdom in the Nineteenth Century and by Japan in the period leading up to the Second World War."64 The Philippines replied that it had not and explained that it considered it unnecessary to do so.65 On 1 April 2016, the Tribunal informed the Parties that it 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. 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 advised that it had undertaken to seek records from the archives of the UKHO, which also hold certain Japanese records captured during the Second World War. The Tribunal provided copies of records to the Parties and invited their comments, which the Philippines provided on 28 April 2016.
141.
Tenth, the Tribunal also considered it appropriate to consult French material from the 1930s in light of France's occupation of the Spratly Islands announced in 193366 and in order to gain a more complete picture as to the natural conditions of the South China Sea features.

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.

142.
As explained in the Tribunal's communications to the Parties, the Tribunal considered historical records concerning conditions on features in the Spratly Islands, prior to them having been subjected to significant human modification, to be more relevant than evidence of the situation currently prevailing, which reflects the efforts of the various littoral States to improve the habitability of features under their control. Accordingly, although the Tribunal has fully considered the contemporary evidence provided by the Philippines, as well as certain materials made public by the Taiwan Authority of China, the Tribunal has not itself sought additional materials on contemporary conditions on any feature in the Spratlys. The Tribunal has, for the same reason, not sought to take advantage of the Taiwan Authority of China's public offer to arrange a site visit to Itu Aba. In this respect the Tribunal notes that China, through its Ambassador's letter of 6 February 2015, objected strongly to the possibility of any site visit to the South China Sea by the Tribunal.67

3. Conclusion on the Legal and Practical Consequences of China's Non-Participation

143.
For reasons set out above, despite its non-participation in the proceedings, China is a Party to the arbitration and is bound under international law by any awards rendered by the Tribunal.
144.
In line with its duties under Annex VII to the Convention, in the circumstances of China's non-participation, the Tribunal has taken steps to ensure procedural fairness to both Parties without compromising the efficiency of the proceedings. The Tribunal has also taken steps to ascertain China's position on the issues for decision, based on statements made by Chinese officials publicly and in communications to the members of the Tribunal. In addition to its thorough review of the materials placed before it by the Philippines, the Tribunal has also taken steps to satisfy itself of its jurisdiction and the legal and factual foundations of the Philippines' claims through obtaining independent expert input, reviewing other materials in the public domain, and inviting further comments from the Parties on those sources.

B. SUMMARY OF THE TRIBUNAL'S AWARD ON JURISDICTION

145.
Pursuant to Article 288(4) of the Convention, "[i]n the event of a dispute as to whether a court or tribunal has jurisdiction, the matter shall be settled by decision of that court or tribunal." As set out above, where a Party does not appear before the Tribunal, Article 9 of Annex VII to the Convention requires that "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." Additionally, the Rules of Procedure adopted by the Tribunal provide at Article 20(3) as follows:

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

146.
China's Position Paper was said by the Chinese Ambassador to have "comprehensively explain[ed] why the Arbitral Tribunal... manifestly has no jurisdiction over the case."69 In its Procedural Order No. 4 of 21 April 2015, the Tribunal recalled the practice of international courts and tribunals in interstate disputes of (a) taking note of public statements or informal communications made by non-appearing Parties, (b) treating such statements and communications as equivalent to or as constituting preliminary objections, and (c) bifurcating proceedings to address some or all of such objections as preliminary questions.70 The Tribunal considered that:

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

147.
Accordingly, the Tribunal decided:

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

148.
The Tribunal also noted that it would not limit itself to hearing only the questions raised in China's Position Paper.73 The Tribunal accordingly convened the Hearing on Jurisdiction in The Hague on 7, 8, and 13 July 2015 and issued its Award on Jurisdiction on 29 October 2015. The principal findings of that decision are recalled herein.

1. Preliminary Matters

149.
In its Award on Jurisdiction, the Tribunal noted that "both the Philippines and China are parties to the Convention"74 and that the provisions for the settlement of disputes, including through arbitration, form an integral part of the Convention.75 Although the Convention specifies certain limitations and exceptions to the subject matter of the disputes that may be submitted to compulsory settlement, it does not permit other reservations, and a State may not except itself generally from the Convention's mechanism for the resolution of disputes.76
150.
The Tribunal also noted China's non-participation and held that this fact does not deprive the Tribunal of jurisdiction. In this respect, the Tribunal recalled the provisions of Article 9 of Annex VII to the Convention.
151.
Although China did not participate in the constitution of the Tribunal, the Tribunal held that it had been properly constituted pursuant to the provisions of Annex VII to the Convention.77 The Tribunal detailed the steps it had taken to satisfy itself regarding its jurisdiction, including through questions posed to the Philippines and through the Hearing on Jurisdiction in July 2015.78 The Tribunal also recalled the steps it had taken to safeguard the procedural rights of both Parties in the circumstances of China's non-participation.79
152.
Finally, the Tribunal considered the argument set out in China's Position Paper that the Philippines' unilateral resort to arbitration constituted an abuse of the dispute settlement provisions of the Convention.80 The Tribunal noted that, although certain provisions of the Convention address the abuse of rights and provide a preliminary procedure to dismiss claims that are facially unfounded, it was more appropriate to consider China's concerns about the Tribunal's jurisdiction as a preliminary objection.81 The Tribunal also noted that "the mere act of unilaterally initiating an arbitration under Part XV in itself cannot constitute an abuse" of the Convention.82

2. Existence of a Dispute concerning Interpretation and Application of the Convention

153.
The Tribunal next considered whether there is a dispute between the Parties concerning the interpretation or application of the Convention, which is the basis for the dispute settlement mechanisms of the Convention.83 In so doing, the Tribunal considered two objections set out in China's Position Paper: first, that the Parties' dispute is actually about sovereignty over the islands of the South China Sea and therefore not a matter concerning the Convention, and second, that the Parties' dispute is actually about the delimitation of the maritime boundary between them and therefore excluded from dispute settlement by an exception set out in the Convention that States may activate by declaration. China activated the exception for disputes concerning sea boundary delimitations when it made a declaration in 2006.
154.
With respect to the former objection, the Tribunal noted that there is a dispute between the Parties regarding sovereignty over islands, but held that the matters submitted to arbitration by the Philippines do not concern sovereignty.84 The Tribunal considered it to be expected that the Philippines and China would have disputes regarding multiple subjects, but emphasised that the Tribunal did not accept that "it follows from the existence of a dispute over sovereignty that sovereignty is also the appropriate characterisation of the claims the Philippines has submitted in these proceedings."85 The Tribunal also emphasised that "[t]he Philippines has not asked the Tribunal to rule on sovereignty and, indeed, has expressly and repeatedly requested that the Tribunal refrain from so doing."86 The Tribunal emphasised that it did "not see that any of the Philippines' Submissions require an implicit determination of sovereignty."87 Finally, the Tribunal observed that it was "fully conscious of the limits on the claims submitted to it and, to the extent that it reaches the merits of any of the Philippines' Submissions, intends to ensure that its decision neither advances nor detracts from either Party's claims to land sovereignty in the South China Sea."88
155.
With respect to the latter objection, the Tribunal noted that a dispute concerning whether a State possesses an entitlement to a maritime zone is a distinct matter from the delimitation of maritime zones in an area in which they ove rlap.89 While a wide variety of issues are commonly considered in the course of delimiting a maritime boundary, it does not follow that a dispute over each of these issues is necessarily a dispute over boundary delimitation. In particular, the Tribunal emphasised that:

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

156.
Turning to the matters raised in the Philippines' Submissions, the Tribunal reviewed the record to determine whether disputes existed between the Parties at the time the Philippines commenced this arbitration and whether such disputes concerned the interpretation and application of the Convention.93 In so doing, the Tribunal noted that it was necessary to address some ambiguity regarding China's position on the matters before it and recalled that the existence of a dispute may be inferred from the conduct of a State, or from silence, and is a matter to be determined objectively.94 The Tribunal considered that each of the Philippines' claims reflected a dispute concerning the Convention95 and noted in particular that a dispute concerning the interaction between the Convention and other rights (including any Chinese historic rights) is a dispute concerning the Convention.96

3. Involvement of Indispensable Third Parties

157.
Having identified the disputes presented by the Philippines' Submissions, the Tribunal considered whether the absence from this arbitration of other States, such as Viet Nam, that have claims to the islands of the South China Sea would be a bar to the Tribunal's jurisdiction.97 The Tribunal noted that this arbitration differs from past cases in which a court or tribunal has found the involvement of a third party to be indispensable.98 The Tribunal recalled that "the determination of the nature of and entitlements generated by the maritime features in the South China Sea does not require a decision on issues of territorial sovereignty" and held accordingly that "[t]he legal rights and obligations of Viet Nam therefore do not need to be determined as a prerequisite to the determination of the merits of the case."99 The Tribunal also recalled that, in December 2014, Viet Nam submitted a "Statement of the Ministry of Foreign Affairs of Viet Nam" for the Tribunal's attention, in which Viet Nam asserted that it has "no doubt that the Tribunal has jurisdiction in these proceedings."100

4. Preconditions to Jurisdiction

158.
The Tribunal then considered the preconditions to jurisdiction set out in the Convention. Although the dispute settlement mechanism of the Convention provides for compulsory settlement, including through arbitration, it also permits parties to agree on the settlement of disputes through alternative means of their own choosing. Articles 281 and 282 of the Convention may prevent a State from making use of the mechanisms under the Convention if they have already agreed to another means of dispute resolution. Article 283 also requires the Parties to exchange views regarding the settlement of their dispute before beginning arbitration.
159.
The Tribunal considered the applicability of Articles 281 and 282 to the following instruments to determine whether the Parties had agreed to another means of dispute settlement: (a) the 2002 China-ASEAN Declaration on the Conduct of Parties in the South China Sea (the "DOC"), (b) a series of joint statements issued by the Philippines and China referring to the resolution of disputes through negotiations, (c) the Treaty of Amity and Cooperation in Southeast Asia, and (d) the Convention on Biological Diversity (the "CBD"). The Tribunal held that the DOC is a political agreement and "was not intended to be a legally binding agreement with respect to dispute resolution,"101 does not provide a mechanism for binding settlement,102 and does not exclude other means of settlement.103 The Tribunal reached the same conclusion with respect to the joint statements identified in China's Position Paper.104 With respect to the Treaty of Amity and Cooperation in Southeast Asia and the CBD, the Tribunal noted that both are legally binding agreements with their own procedures for disputes, but that neither provides a binding mechanism and neither excludes other procedures.105 Additionally, the Tribunal noted that although there is overlap between the environmental provisions of the UN Convention on the Law of the Sea and the CBD, this does not mean that a dispute concerning one instrument is necessarily a dispute concerning the other or that the environmental claims brought by the Philippines should instead be considered under the framework of the CBD.106 Accordingly, the Tribunal concluded that none of these instruments prevent the Philippines from bringing its claims to arbitration.
160.
With respect to the exchange of views on the settlement of the dispute, the Tribunal held that Article 283 requires parties to exchange views on the means of settling their dispute, not the substance of that dispute.107 The Tribunal held that this requirement was met in the record of diplomatic communications between the Philippines and China, in which the Philippines expressed a clear preference for multilateral negotiations involving the other States surrounding the South China Sea while China insisted that only bilateral talks could be considered.108 The Tribunal also considered whether, independently of Article 283, the Philippines was under an obligation to pursue negotiations before resorting to arbitration.109 In this respect, the Tribunal held that the Philippines had sought to negotiate with China110 and noted that it is well established that international law does not require a State to continue negotiations when it concludes that the possibility of a negotiated solution has been exhausted.111

5. Exceptions and Limitations to Jurisdiction

161.
Finally, the Tribunal examined the subject matter limitations to its jurisdiction set out in Articles 297 and 298 of the Convention. Article 297 automatically limits the jurisdiction a tribunal may exercise over disputes concerning marine scientific research or the living resources of the exclusive economic zone. Article 298 provides for further exceptions from compulsory settlement that a State may activate by declaration for disputes concerning (a) sea boundary delimitations, (b) historic bays and titles, (c) law enforcement activities, and (d) military activities. By declaration on 25 August 2006, China activated all of these exceptions.
162.
The Tribunal considered that the applicability of these limitations and exceptions may depend upon certain aspects of the merits of the Philippines' claims:

(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

163.
The Tribunal recalled that its Rules of Procedure call for it to rule on objections to jurisdiction as a preliminary matter, but permitted it to rule on such objections in conjunction with the merits if the objection "does not possess an exclusively preliminary character." For the foregoing reasons, the Tribunal concluded that it was able, at that time, to rule that it has jurisdiction over certain of the claims brought by the Philippines, but that others were not exclusively preliminary and would be deferred for further consideration in conjunction with the merits.116

6. Decisions of the Tribunal

164.
In its Award, the Tribunal unanimously concluded that it:

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

C. THE STATUS AND EFFECT OF THE TRIBUNAL'S AWARD ON JURISDICTION

165.
The Tribunal's Award on Jurisdiction is an "award of the arbitral tribunal" for the purposes of Article 10 of Annex VII to the Convention.118 Pursuant to Article 11 of Annex VII to the Convention, "[t]he award shall be final and without appeal, unless the parties to the dispute have agreed in advance to an appellate procedure. It shall be complied with by the parties to the dispute."119
166.
The Tribunal is conscious that China has not, to date, accepted the decisions in the Tribunal's Award on Jurisdiction and has stated that the Award "is null and void, and has no binding effect on China."120 The Tribunal is also conscious that China has continued to assert publicly that the Tribunal lacks jurisdiction for the same reasons set out in China's Position Paper of 7 December 2014, specifically that:

(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

167.
The Tribunal considers that each of these objections—concerning (a) the link between sovereignty and the Philippines' claims,126 (b) the link between maritime delimitation and the Philippines' claims,127 (c) the effect of the DOC,128 (d) the Parties' exchange of views on the settlement of the dispute prior to the commencement of the arbitration,129 and (e) the appropriateness of the Philippines' recourse to arbitration130—has been fully addressed and decided in the Tribunal's Award on Jurisdiction, in keeping with the Tribunal's power pursuant to Article 288(4) to decide any dispute concerning the scope of its own jurisdiction.
168.
For the avoidance of doubt, the Tribunal hereby reaffirms in full, and incorporates by reference, the conclusions and reasoning set out in its Award on Jurisdiction.

V. THE 'NINE-DASH LINE' AND CHINA'S CLAIM TO HISTORIC RIGHTS IN THE MARITIME AREAS OF THE SOUTH CHINA SEA (SUBMISSIONS NO. 1 AND 2)

A. INTRODUCTION

169.
In this Chapter, the Tribunal addresses the Parties' dispute reflected in the Philippines' Submissions No. 1 and 2, which request the Tribunal to hold that China is entitled only to those rights provided for by the Convention and that these rights are not supplemented or modified by any historic rights, including within the area marked by the 'nine-dash line' on Chinese maps.131 Submissions No. 1 and 2 are expressed as follows:

(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;

170.
In its Award on Jurisdiction, the Tribunal held that these Submissions reflect a dispute concerning the source of maritime entitlements in the South China Sea and the interaction of China's claimed historic rights with the provisions of the Convention.132 This dispute does not concern sovereignty, insofar as the Philippines has asked the Tribunal to determine the source of rights to maritime areas, and not to decide sovereignty over any land features within the South China Sea.133 The Tribunal also held that this dispute does not concern maritime boundary delimitation.134 Finally, the Tribunal emphasised that "[a] dispute concerning the interaction of the Convention with another instrument or body of law, including the question of whether rights arising under another body of law were or were not preserved by the Convention, is unequivocally a dispute concerning the interpretation and application of the Convention."135
171.
However, the Tribunal held that a final determination on its jurisdiction with respect to the Parties' dispute is dependent on the nature of any historic rights claimed by China and whether they are covered by the exclusion from jurisdiction in Article 298 of the Convention for disputes concerning "historic bays or titles." Accordingly, the Tribunal deferred a decision on its jurisdiction for consideration in conjunction with the merits of the Philippines' claims.136

B. CHINA'S DECLARATIONS AND LEGISLATION CONCERNING ENTITLEMENTS TO MARITIME ZONES

172.
China has set out its claims to maritime zones in legislation and a series of declarations.
173.
When China was under the control of its Republican Government in the 1930s, it issued a decree declaring a territorial sea of three nautical miles.137 Prior to that declaration China appears to have distinguished between the "inner ocean" and the "outer ocean" in its domestic laws, and to have included references to a territorial sea in a number of international agreements, but never to have fixed the extent or boundaries of that zone.138
174.
On 4 September 1958, China issued a Declaration of the Government of the People's Republic of China on China's Territorial Sea, which provided in relevant part as follows:

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

175.
On 25 February 1992, China enacted a Law on the Territorial Sea and the Contiguous Zone, which provided in relevant part as follows:

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

176.
On 15 May 1996, China issued a Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea, setting out certain coordinates for the baselines from which its territorial sea would be measured.141
177.
On 7 June 1996, in conjunction with its ratification of the Convention, China declared an exclusive economic zone in the following terms:

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

178.
On 26 June 1998, China enacted a Law on the Exclusive Economic Zone and the Continental Shelf, which described the extent of China's exclusive economic zone and continental shelf as follows:

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

179.
Article 14 of the Exclusive Economic Zone and Continental Shelf Act provides further that "[t]he 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."144

C. CHINA'S CLAIMS TO HISTORIC RIGHTS

180.
As the Tribunal noted in its Award on Jurisdiction, the resolution of the Parties' dispute in relation to Submissions No. 1 and 2 is complicated by some ambiguity in China's position. As far as the Tribunal is aware, China has never expressly clarified the nature or scope of its claimed historic rights. Nor has it ever clarified its understanding of the meaning of the 'nine-dash line'.145 Certain facts can, however, be established.
181.
What has become known as the 'nine-dash line' first appeared on an official Chinese map in 1948. In that year, the Ministry of the Interior of the then Republican Government of China published a "Map Showing the Location of the Various Islands in the South Sea" (the "1948 Map").146 A similar line had also appeared in privately produced cartography as early as 1933.147 The 1948 Map is reproduced as Figure 1 on page 75 below. In this original form, the map featured 11 dashes. The two dashes in the Gulf of Tonkin were removed in 1953,148 rendering it a 'nine-dash line', and the line has appeared consistently in that nine-dash form in official Chinese cartography since that date.149 The length and precise placement of individual dashes, however, do not appear to be entirely consistent among different official depictions of the line.
182.
On 7 May 2009, China sent two Notes Verbales to the UN Secretary-General in response to Malaysia and Viet Nam's Joint Submission of the preceding day to the Commission on the Limits of the Continental Shelf (the "CLCS"). In its notes, China stated as follows:

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

183.
Appended to China's notes was a map depicting the 'nine-dash line' (the "2009 Map"), which is reproduced as Figure 2 on page 77 below.
184.
China's notes prompted immediate objections from Viet Nam and Malaysia,151 as well as subsequent objections from Indonesia152 and the Philippines.153 In addition to claiming sovereignty over the "Kalayaan Island Group (KIG)", the Philippines' objection stated in relevant part:

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

185.
In response to the Philippines, China restated its position as follows:

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

186.
China has repeated variations on this formula in its diplomatic correspondence156 and in the public statements of its official spokespersons,157 and has expressly linked the 'nine-dash line' to China's claim to rights "formed over a long course of history":

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

187.
China's formal statement, released following the Tribunal's issuance of the Award on Jurisdiction, is representative of China's consistent characterisation of its maritime entitlements in the South China Sea:

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

D. THE PHILIPPINES' POSITION

188.
The Philippines submits that the Tribunal has jurisdiction to consider its Submissions No. 1 and 2. On the merits, the Philippines argues both (a) that any rights that China may have had in the maritime areas of the South China Sea beyond those provided for in the Convention were extinguished by China's accession to the Convention and (b) that China never had historic rights in the waters of the South China Sea.

1. Jurisdiction

189.
With respect to jurisdiction, the Philippines argues that China's statements since May 2009 make a consistent distinction between claims to "sovereignty" and claims to "sovereign rights and jurisdiction," and a further distinction between the "islands in the South China Sea and the adjacent waters" and the "relevant waters". According to the Philippines:

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

190.
In the Philippines' view, the nature of China's claim as one of sovereign rights and jurisdiction is confirmed by China's conduct in (a) seeking to ban fishing by other States within the 'nine-dash line'; (b) interfering with the Philippines' petroleum exploration activities; and (c) offering concessions to oil blocks in areas within the 'nine-dash line' but beyond the possible limits of China's entitlements under the Convention.161 At the same time, the Philippines considers that China's conduct makes clear that its claim is not to sovereignty over the entire area within the 'nine-dash line', insofar as China has repeatedly asserted that it respects freedom of navigation and overflight in the South China Sea.162 The Philippines also notes that this interpretation of China's position has been adopted by numerous Chinese scholars, including those with significant links to the government.163
191.
According to the Philippines, the exception to jurisdiction in Article 298 of the Convention is limited to disputes involving "historic bays or titles." Moreover, the Philippines argues, "the concept of 'historic title' as used in Article 298 has a specific and limited meaning: it pertains only to near-shore areas of sea that are susceptible to a claim of sovereignty as such."164 Because the Philippines understands China's claims to fall short of sovereignty over the maritime areas of the South China Sea (beyond the "islands" and "adjacent waters"), the Philippines considers that China's claim cannot be one of historic title. In this respect, the Philippines argues that there is a consistent distinction—including in the Chinese terminology— between China's use of the term "historical rights" in China's Exclusive Economic Zone and Continental Shelf Act165 and the term 'historic title' in Article 298 and elsewhere in the Convention. As such, the Philippines argues, "China's claim of 'historic rights' within the area encompassed by the nine-dash line is not covered by Article 298(1)(a)(i)."166 Even if China's claim were to a historic title, however, the Philippines submits that Article 298 would nevertheless be inapplicable because the article applies only to disputes over the delimitation of historic bays and titles. According to the Philippines, "when Article 298(1)(a)(i) refers to 'those involving historic bays or titles' the 'those' being referred to are not disputes generally but rather disputes concerning delimitation."167

2. China's Claim to Historic Rights

192.
With respect to the merits, the Philippines' argument is two-fold. First, the Philippines submits that international law did not historically permit the type of expansive claim advanced by China's 'nine-dash line' and that, even if China did possess historic rights in the South China Sea, any such rights were extinguished by the adoption of the Convention. Second, the Philippines argues that, on the basis of the historical record of China's activities in the South China Sea, China cannot meet the criteria for having established historic rights within the 'nine-dash line'.
193.
According to the Philippines, international law prior to the adoption of the Convention did not accept "assertions of historic rights over such a vast area" as China now claims.168 Prior to the Convention, the Philippines argues, "[t]he sea was subject only to two principles: the principle of the freedom of the seas, which prohibits appropriation by any state; and the principle of control over a limited area by the immediately adjacent coastal state, which prohibits appropriation by any other state."169 In the Philippines' view, "China's claim... is inconsistent with both principles."170
194.
With the adoption of the Convention, the Philippines submits, the States Parties considered "with careful specificity the nature of prior uses [of the sea] that are protected, the nature of the protections, and the areas in which such protections apply."171 According to the Philippines, where the Convention makes no express exception for prior uses or rights "those historic rights would not have survived as derogations from the sovereignty, sovereign rights and high seas freedoms of other states."172 Notably, while some protections of prior uses were accepted, the Philippines argues that "distant water fishing states failed to obtain recognition in the exclusive economic zone of historic fishing rights derived from prior high seas fishing."173 In the course of these debates, the Philippines submits:

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

195.
The Philippines also challenges the existence of Chinese historic rights in the maritime areas of the South China Sea. According to the Philippines, China "first claimed the existence of such rights on 7th May 2009."176 The Philippines submits that Chinese historic maps dating back to 1136, including those purporting to depict the entirety of the Empire of China, consistently show China's territory extending no further south than Hainan.177 The Philippines also notes that, for periods of the 14th century and for much of the 15th and 16th centuries, the Imperial Chinese Government actively prohibited maritime trade by Chinese subjects.178 Indeed, the Philippines notes:

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

196.
This ambivalent attitude to seafaring explains, for the Philippines, China's muted reaction to the activities of European States in the South China Sea and its lack of protest to European navigation and the establishment of colonies in Southeast Asia, beginning in the 16th century.
197.
Reviewing the published archival records of the Taiwan Authority of China,180 which the Philippines considers to comprise documents selected to support China's claims, the Philippines emphasises the absence of "any documents evidencing any official Chinese activities in regard to any South China Sea feature prior to the beginning of the 20th century."181 The Philippines also emphasises a Note Verbale from the Legation of the Chinese Republic in France to the French Ministry of Foreign Affairs in 1932, stating that the Paracel Islands "form the southernmost part of Chinese territory."182 According to the Philippines, when China "sought to assert its claim to the South China Sea islands,"183 following the defeat of Japanese forces in the Second World War, the plans included an effort to develop Chinese names for the features, the majority of which were then identified only by Chinese transliterations of their English names.184 According to the Philippines "Lord Auckland Shoal was thus 'Ao ke lan sha', and Mischief Reef 'Mi-qi fu'. Gaven Reef was 'Ge wen', and Amy Douglas Reef 'A mi de ge la'."185 Based on this record, the Philippines questions how China could have historic rights in an area "over which it had so little involvement or connection that most of the features had no Chinese names."186
198.
According to the Philippines, the absence of any Chinese historic rights in the South China Sea is also apparent in various historical documents obtained by the Tribunal from the Bibliothéque Nationale de France and the Archives Nationales d'Outre-Mer and provided to the Parties for comment. In the Philippines' view, these documents confirm that "prior to the Second World War France did not consider China to have made a claim in regard to any of the Spratlys, or to the waters of the South China Sea far removed from China's mainland coast."187 Additionally, "the post-war documents—including France's internal records—make clear that France retained its claim to those features," a position the Philippines considers consistent with its view that the United Kingdom and United States "wished to protect France's sovereignty claim" in connection with the Cairo Declaration and Potsdam Proclamation.188
199.
In any event, the Philippines argues that any Chinese historical claims to the features of the South China Sea did not, until 2009, "include a claim to the waters beyond their territorial seas."189 The Philippines notes China's support of the three-mile territorial sea limit during the Second UN Conference on the Law of the Sea in 1960,190 as well as the fact that China's Declaration of the Government of the People's Republic of China on China's Territorial Sea refers to the Spratly Islands as being "separated from the mainland and its coastal islands by the high seas," and not by any maritime area in which China had particular entitlements.191 The Philippines argues that this has also been the understanding, until recently, of Chinese scholars working from the archives of the People's Republic of China.192 Finally, when China did make clear in May 2009 that it claims historic rights in the maritime areas within the 'nine-dash line', the Philippines submits that this was promptly objected to by the other littoral States of the South China Sea.193 As such, the Philippines submits that China has no historic rights within the 'nine-dash line'.

E. CHINA'S POSITION

200.
China's various statements indicating that it claims historic rights in the South China Sea within the area of the 'nine-dash line' are set out above at paragraphs 180 to 187. On 12 May 2016, when the Director-General of the Department of Treaty and Law at the Chinese Ministry of Foreign Affairs was asked about the 'nine-dash line' in the context of the present arbitration, he responded with the following statement:

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

201.
China has not explained the nature of these claims in the course of these proceedings. The Tribunal will address the nature of China's claims to historic rights in the context of considering its jurisdiction with respect to the Philippines' Submissions No. 1 and 2.

F. THE TRIBUNAL'S CONSIDERATIONS

1. The Tribunal's Jurisdiction

202.
Article 298 of the Convention provides in relevant part as follows:

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....

203.
On 25 August 2006, China issued a declaration pursuant to Article 298, activating all of the optional exceptions to jurisdiction in the following terms: "[t]he Government of the People's Republic of China does not accept any of the procedures provided for in Section 2 of Part XV of the Convention with respect to all the categories of disputes referred to in paragraph 1 (a), (b) and (c) of Article 298 of the Convention."195
204.
The Tribunal has already addressed the first exception to jurisdiction in Article 298(1)(a)(i) of the Convention, which applies to disputes concerning the interpretation or application of articles 15, 74, and 83 of the Convention relating to sea boundary delimitations, and found it inapplicable in the present case.196 In brief, a dispute over the source and existence of maritime entitlements does not "concern" sea boundary delimitation merely because the existence of overlapping entitlements is a necessary condition for delimitation. While all sea boundary delimitations will concern entitlements, the converse is not the case: all disputes over entitlements do not concern delimitation. Where, as here, a party denies the existence of an entitlement, a possible outcome may well be the absence of any overlap and any possibility of delimitation. The exception in Article 298(1)(a)(i) of the Convention does not reach so far as to capture a dispute over the existence of entitlements that may—or may not—ultimately require delimitation.
205.
What remains for the Tribunal in the present decision is the second exception to jurisdiction in Article 298(1)(a)(i) of the Convention, which applies to disputes involving historic bays or titles. The concept of a historic bay is well understood in international law197 and, as a matter of plain geography, the South China Sea is not a bay.198 The question is therefore whether China potentially claims historic title in the South China Sea and, if so, the implications for the Tribunal's jurisdiction.
206.
Whether the Parties' dispute involves historic titles, therefore, depends first upon the nature of China's claims in the South China Sea and, second, on the scope of the exception. It is for China to determine the scope of its maritime claims. As far as the Tribunal is aware, however, the most insightful formulation by China of its claims in the South China Sea, beyond its claim to sovereignty over islands and their adjacent waters, is as a claim to "relevant rights in the South China Sea, formed in the long historical course."199 In the absence of a more specific indication from China itself, it necessarily falls to the Tribunal to ascertain, on the basis of conduct, whether China's claim amounts to 'historic title'.

(a) The Nature of China's Claimed Rights in the South China Sea

207.
Since 1956, China has proclaimed a series of maritime zones—a territorial sea, a contiguous zone, a continental shelf, and an exclusive economic zone—that are, at least in general terms, in line with those anticipated by the Convention. Nevertheless, China's repeated invocation of rights "formed in the long historical course" and its linkage of this concept with the 'nine-dash line' indicates that China understands its rights to extend, in some form, beyond the maritime zones expressly described in the Convention. The Tribunal therefore turns to the rights that China has actually invoked in the South China Sea. Much of the area encompassed by the 'nine-dash line', however, would also fall within a claim to an exclusive economic zone or continental shelf drawn from the various features of the Spratly Islands. Whether or not the Tribunal would agree that the Convention or the features support such entitlements, a matter discussed in Chapter VI below, the mere fact that China asserts rights in the South China Sea does not indicate that China considers those rights to derive from the 'nine-dash line'. Where, however, China has asserted rights in areas beyond the maximum entitlements that could be claimed under the Convention, the Tribunal considers that such assertions indicate a claim to rights arising independently of the Convention. There are at least three instances when China appears to have asserted such rights.
208.
In June 2012, the China National Offshore Oil Corporation ("CNOOC") issued a notice of open blocks for petroleum exploration adjacent to the western edge of the 'nine-dash line'.200 The western portions of at least one of these blocks (Block BS16) lie beyond 200 nautical miles from any feature in the South China Sea claimed by China,201 and beyond any possible extended continental shelf.202 The map appended to the CNOOC tender is reproduced as Figure 3 on page 89. The Tribunal acknowledges that the affected area of the 'nine-dash line' is not of direct relevance to the Philippines' own maritime claims, but nevertheless notes that China's 2012 notice assists in understanding the nature of China's claims within the 'nine-dash line'. Thus, with respect to some areas of the blocks, even assuming the maximum possible claim to entitlements that China could make under the Convention, China's authority to issue the petroleum blocks in question cannot be based solely upon entitlements derived from the Convention.
209.
China has also objected to the Philippines' award of petroleum blocks within the 'nine-dash line', an issue discussed in greater detail in connection with the Philippines' Submission No. 8. The area of the Philippines' petroleum blocks could be almost covered by entitlements claimed by China under the Convention, if China were understood to claim an exclusive economic zone from all high-tide features in the Spratly Islands, no matter how small, and from Scarborough Shoal. The fact of China's objection is thus not necessarily indicative of the source of China's claimed rights. When, however, China objected to the Philippines' Geophysical Survey and Exploration Contract 101 petroleum block ("GSEC101") (depicted in Map 4 on page 269), the Philippines recorded China's Chargé d'Affaires in Manila as stating that "[s]ince ancient times, China has indisputable sovereignty over the Nansha islands and its adjacent waters. The GSEC 101 (SC 72) area is situated in the adjacent waters of the Nansha Islands (Spratlys)."203 Similarly, when China objected to the Philippines' Service Contract 58 ("SC58") block, the Philippines recorded China's Deputy Chief of Mission in Manila as stating that "Service Contract 54, 14, 58, 63, and other nearby service contracts are located 'deep within China's 9-dash line.'"204 Finally, China objected to the Philippines' Area 3 and Area 4 petroleum blocks by Note Verbale:

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.

210.
A similar conclusion is suggested by China's declaration, in May 2012, of a "Summer Ban on Marine Fishing in the South China Sea Maritime Space," in order to "protect and rationally utilise South China Sea fishery resources."206 The announcement described the ban and the area in which it would apply as follows:

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

211.
This description is not entirely clear with respect to the source of China's claimed right to restrict fishing in the South China Sea areas. That is because first, it applies ultimately only to areas "under the jurisdiction of the People's Republic of China," although a description of the ban by Xinhua, the official press agency of China, noted that it applied "in most parts of the South China Sea... including Huangyan Island [Scarborough Shoal]."208 Second, the area north of 12° north latitude could be almost entirely covered by entitlements claimed from the Convention, if China were understood to claim an exclusive economic zone from the very small rocks of Scarborough Shoal.209 However, taken together with the conclusion above about the grant of petroleum blocks and China's frequent references to historic rights without further specification, the Tribunal concludes that China does claim rights to petroleum resources and fisheries within the 'nine-dash line' on the basis of historic rights existing independently of the Convention.
212.
At the same time, China has unequivocally stated that it respects freedom of navigation and overflight in the South China Sea. On 27 October 2015, China's Vice Foreign Minister stated that "[t]he Chinese side respects and safeguards the freedom of navigation and over-flight in the South China Sea to which all countries are entitled under international law.... There has been and will be no obstruction to navigation and over-flight freedom in the South China Sea."210 The same commitment has been repeated in numerous other statements by Chinese officials and spokespersons.
213.
Within the territorial sea, the Convention does not provide for freedom of overflight or for freedom of navigation, beyond a right of innocent passage.211 Accordingly, the Tribunal considers China's commitment to respect both freedom of navigation and overflight to establish that China does not consider the sea areas within the 'nine-dash line' to be equivalent to its territorial sea or internal waters. The Tribunal also notes that China declared baselines for the territorial sea surrounding Hainan and the Paracel Islands (see paragraph 176 above). In the view of the Tribunal, China would presumably not have done so if the waters both within and beyond 12 nautical miles of those islands already formed part of China's territorial sea (or internal waters) by virtue of a claim to historic rights through the 'nine-dash line'.
214.
In sum, on the basis of China's conduct, the Tribunal understands that China claims rights to the living and non-living resources within the 'nine-dash line', but (apart from the territorial sea generated by any islands) does not consider that those waters form part of its territorial sea or internal waters. The Tribunal will now consider whether a dispute concerning such a claim falls within the exception to compulsory jurisdiction for "historic bays or titles" in Article 298(1)(a)(i) of the Convention.

(b) The Scope of the Exception in Article 298(1)(a)(i) of the Convention

215.
In assessing the scope of the exception in Article 298(1)(a)(i), the Tribunal notes, as an initial matter, that it disagrees with the Philippines that the exception can be dispensed with on the grounds that, properly interpreted, the exception applies only to "delimitations... involving historic bays or titles."212 The Tribunal considers this interpretation to be contrary to the natural reading of even the English text, but agrees that at least the English text of this Article is potentially ambiguous. The Convention is a multi-lingual instrument, however, and pursuant to Article 320 of the Convention, "the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic." No comparable ambiguity is to be found in the Chinese, French, Russian, or Spanish versions of the Convention, each of which is structured so as to make clear that the exception extends to "disputes... involving historic bays or titles," whether or not such disputes involve delimitation.
216.
Article 33 of the Vienna Convention on the Law of Treaties (the "Vienna Convention on the Law of Treaties" or the "Vienna Convention") addresses the interpretation of a treaty authenticated in multiple languages and provides that, unless otherwise indicated, "the text is equally authoritative in each language."213 Article 33 of the Vienna Convention also provides that "when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted."214 In the present case, and noting that the Convention is silent on the resolution of differences between its different versions, the Tribunal considers that the broader exception in the non-English texts, for "disputes... involving historic bays or titles," best reconciles the different versions.
217.
Article 298(1)(a)(i) of the Convention provides for an exception for disputes involving 'historic titles'. While the ordinary meaning of this term already implies a notion of property, the Tribunal considers that the meaning of the Convention's reference to 'historic titles' should be understood in the particular context of the evolution of the international law of the sea.
218.
The genesis of the present Convention dates back at least to the League of Nations Codification Conference which met in The Hague in March and April 1930. The regime of the territorial sea was among the topics considered, and the Preparatory Committee of the Conference recommended that the Conference seek to identify the bays claimed as "historic bays".215 No convention, however, resulted from the Conference.
219.
Efforts at codification next moved to the International Law Commission, which submitted a set of draft articles to the General Assembly in 1956. Article 7 of these draft articles addressed the subject of bays and Article 7(4) provided that "[t]he foregoing provisions shall not apply to so-called 'historic' bays."216 The commentaries to the draft articles also noted that the breadth of the territorial sea, which was not then agreed upon, could be determined up to 12 nautical miles on the basis of "historic rights".217
220.
Prior to the First UN Conference on the Law of the Sea, the UN Secretariat prepared an influential memorandum on historic bays which noted as follows:

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

221.
The first reference to historic title in the treaties preceding the present Convention appears in the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, Article 12 of which addresses the delimitation of territorial sea, but provides that "[t]he provisions of this paragraph shall 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 with this provision."221 This provision was introduced by Norway, reflecting its recent experience before the International Court of Justice.222 As used in Article 12 of the 1958 Convention, 'historic title' was clearly intended to have the same meaning as its usage in Anglo-Norwegian Fisheries, namely as an area of sea claimed exceptionally as internal waters (or, possibly, as territorial sea). At the close of the First Conference, a resolution was adopted on the initiative of India and Panama, requesting the General Assembly to "make appropriate arrangements for the study of the juridical regime of historic waters including historic bays, and for the result of these studies to be sent to all Member States of the United Nations."223 The General Assembly referred the matter to the International Law Commission, which did not, however, take it up.
222.
In 1962, following the Second UN Conference on the Law of the Sea, the UN Secretariat produced a memorandum on historic waters, which considered the term as equivalent to historic title. As with historic bays, the UN Secretariat noted that such historic waters "would be internal waters or territorial sea according to whether the sovereignty exercised over them in the course of the development of the historic title was sovereignty as over internal waters or sovereignty as over the territorial sea."224 The memorandum analyses the formation of historic title as a process of acquiring a historic right225—a term which is used generally—and concludes that:

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

223.
During the Third United Nations Conference on the Law of the Sea (the "Third UN Conference"), Article 12 of the 1958 Convention was adopted as Article 15 of the 1982 Convention, without significant discussion. The principal proponent of the concept of historic title in the course of the Conference was, in fact, the Philippines, which employed the term with respect to a claim (which it has since abandoned) to a territorial sea within the lines fixed by the Treaty of Paris of 1898 between Spain and the United States that governed the cession of the Philippines.227
224.
In recent years, the International Court of Justice has twice had the occasion to distinguish between historic fishing rights and historic title that would bear on the entitlement to maritime zones. In Qatar v. Bahrain, the Court noted that historic pearl fishing "seems in any event never to have led to the recognition of an exclusive quasi-territorial right to the fishing grounds themselves or to the superjacent waters."228 Similarly, in Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the Court distinguished the legal basis for historic Tunisian fishing rights— on which it ultimately refrained from ruling—from the regime of the continental shelf.229
225.
The purpose of this extended recitation is to emphasise that there exists, within the context of the law of the sea, a cognizable usage among the various terms for rights deriving from historical processes. The term 'historic rights' is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of a claim of sovereignty. 'Historic title', in contrast, is used specifically to refer to historic sovereignty to land or maritime areas. 'Historic waters' is simply a term for historic title over maritime areas, typically exercised either as a claim to internal waters or as a claim to the territorial sea, although "general international law... does not provide for a single 'regime' for 'historic waters' or 'historic bays', but only for a particular regime for each of the concrete, recognised cases of 'historic waters' or 'historic bays'."230 Finally, a 'historic bay' is simply a bay in which a State claims historic waters.
226.
The Tribunal is of the view that this usage was understood by the drafters of the Convention and that the reference to 'historic titles' in Article 298(1)(a)(i) of the Convention is accordingly a reference to claims of sovereignty over maritime areas derived from historical circumstances. This accords with the only other direct usage of the term, in Article 15 of the Convention, where historical sovereignty would understandably bear on the delimitation of the territorial sea. Other "historic rights", in contrast, are nowhere mentioned in the Convention, and the Tribunal sees nothing to suggest that Article 298(1)(a)(i) was intended to also exclude jurisdiction over a broad and unspecified category of possible claims to historic rights falling short of sovereignty.
227.
The terminological distinction outlined above exists also in Chinese, and the Philippines has pressed on the Tribunal the fact that in its public statements, China has invoked its "historic rights" (li shi xing quan li, or 历史性权利) in the South China Sea, rather than historic title (li shi xing suo you quan, or 历史性所有权) as that term appears in the official Chinese text of the Convention.231 For its part, the Tribunal notes that China's usage has not been entirely consistent, and that at least the English version of China's Note Verbale of 6 July 2011 (of which only the English version is in the record before the Tribunal) refers to "waters of which China has historic titles including sovereign rights and jurisdiction."232 This instance is at odds with the vast majority of China's statements, however, and the Tribunal considers that it more likely represents an error in translation or an instance of imprecise drafting, rather than a claim by China to sovereignty over the entirety of the South China Sea.
228.
More importantly, however, the Tribunal does not see that the absence of a claim to historic title can be inferred from China's use of the broader and less-specific term, as historic title constitutes one form of historic right. For the Tribunal, the dispositive proof that China's claim is not one to historic title lies in China's conduct, which as discussed above (see paragraphs 207 to 214) is incompatible with a claim that the waters of the South China Sea constitute China's territorial sea or internal waters.
229.
Having concluded that the exception to jurisdiction in Article 298(1)(a)(i) is limited to disputes involving historic titles and that China does not claim historic title to the waters of South China Sea, but rather a constellation of historic rights short of title, the Tribunal holds that it has jurisdiction to consider the Philippines' Submissions No. 1 and 2. As China has not made such a claim, the Tribunal need not consider whether there would be any limit to the application of Article 298 to expansive claims of historic title extending well beyond those that may have been anticipated when the Convention was concluded in 1982.

2. The Merits of the Philippines' Submissions No. 1 and 2

230.
Having determined that it has jurisdiction to consider the Philippines' Submissions No. 1 and 2, the Tribunal now turns to the merits of those claims.
231.
Building on prior international law and the 1958 Conventions on the Law of the Sea, the Convention establishes limits for maritime entitlements and sets out the rights and obligations of coastal States—as well as other States—within such maritime zones. Articles 2 through 32 of the Convention govern the rights and obligations of States within the territorial sea and limit the extent of the territorial sea to 12 nautical miles. Articles 55 through 75 of the Convention provide for the creation of an exclusive economic zone and limit its extent to 200 nautical miles. Articles 76 to 85 of the Convention govern the rights and obligations of States to the continental shelf, generally limit the continental shelf to 200 nautical miles, and set out technical criteria according to which some States may claim a continental shelf beyond 200 nautical miles. Articles 86 through 120 and 133 through 191 of the Convention govern the rights and obligations of States in the high seas and in the Area of seabed beyond the limits of national jurisdiction. The Convention thus provides—and defines limits within—a comprehensive system of maritime zones that is capable of encompassing any area of sea or seabed.
232.
The Tribunal has already indicated that it understands, on the basis of China's actions, that China claims historic rights to the living and non-living resources in the waters of the South China Sea within the 'nine-dash line', but that China does not consider that those waters form part of its territorial sea or internal waters (other than the territorial sea generated by islands). Such a claim would not be incompatible with the Convention in any areas where China already possesses such rights through the operation of the Convention. This would, in particular, be the case within China's exclusive economic zone and continental shelf. However, to the extent that China's claim to historic rights extends to areas that would be considered to form part of the entitlement of the Philippines to an exclusive economic zone or continental shelf, it would be at least at variance with the Convention.
233.
In its Submissions No. 1 and 2, the Philippines requests the Tribunal to declare that China's entitlements in the South China Sea are limited to those provided for in the Convention and that any claim to historic rights, or other sovereign rights and jurisdiction, within the area of the 'nine-dash line' in excess of that provided for in the Convention is prohibited.
234.
China's claims to rights and jurisdiction within the 'nine-dash line' and the Philippines' Submissions on this dispute raise three issues that are related, but distinct:

(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?

(a) The Convention and Prior Claims to Historic Rights and Jurisdiction

235.
The Tribunal is faced with the question of whether the Convention allows the preservation of rights to resources which are at variance with the Convention and established anterior to its entry into force. To answer this, it is necessary to examine the relationship between the Convention and other possible sources of rights under international law. The relationship between the Convention and other international agreements is set out in Article 311 of the Convention. The Tribunal considers that this provision applies equally to the interaction of the Convention with other norms of international law, such as historic rights, that do not take the form of an agreement. Article 311 provides as follows:

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.

236.
The relationship between the Convention and other rules of international law is also made clear in Article 293(1) of the Convention, which applies to dispute resolution—including these proceedings—and provides that "[a] court or tribunal having jurisdiction under this section shall apply this Convention and other rules of international law not incompatible with this Convention."
237.
These provisions mirror the general rules of international law concerning the interaction of different bodies of law, which provide that the intent of the parties to a convention will control its relationship with other instruments. This can be seen, in the case of conflicts between treaties, in Article 30 of the Vienna Convention on the Law of Treaties. Articles 30(2) and 30(3) of the Vienna Convention provide that, as between treaties, the later treaty will prevail to the extent of any incompatibility, unless either treaty specifies that it is subject to the other, in which case the intent of the parties will prevail.
238.
In the case of the Convention, the application of these rules leads to four propositions:

(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.

239.
No article of the Convention expressly provides for or permits the continued existence of historic rights to the living or non-living resources of the exclusive economic zone. Similarly, nothing in the Convention expressly provides for or permits a State to maintain historic rights over the living and non-living resources of the continental shelf, the high seas, or the Area. The question for the Tribunal is therefore whether the Convention nevertheless intended the continued operation of such historic rights, such that China's claims should be considered not incompatible with the Convention.

i. The Text and Context of the Convention

240.
Within the exclusive economic zone, Article 56(1) of the Convention provides for the sovereign rights and jurisdiction of the coastal State in the following terms:

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.

241.
The rights of other States in the exclusive economic zone are then set out in Article 58, which limits them to navigation, overflight, and the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms. High seas rights and freedoms apply in the exclusive economic zone only to the extent they are not incompatible with the provisions of this part of the Convention. Article 58 of the Convention provides as follows:

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.

242.
Finally, the rights of other States "whose nationals have habitually fished in the zone" are specifically addressed in Article 62 of the Convention. Under this provision, coastal States are only obliged to permit fishing in the exclusive economic zone by foreign nationals in the event that the coastal State lacks the capacity to harvest the entire allowable catch. Even then, historic fishing in the area is only one of the criteria to be applied in allocating access, and foreign fishing is subject to the laws and regulation of the coastal State. Article 62 of the Convention provides in relevant part as follows:

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....

243.
As a matter of the text alone, the Tribunal considers that the Convention is clear in according sovereign rights to the living and non-living resources of the exclusive economic zone to the coastal State alone. The notion of sovereign rights over living and non-living resources is generally incompatible with another State having historic rights to the same resources, in particular if such historic rights are considered exclusive, as China's claim to historic rights appears to be. Furthermore, the Tribunal considers that, as a matter of ordinary interpretation, the (a) express inclusion of an article setting out the rights of other States and (b) attention given to the rights of other States in the allocation of any excess catch preclude the possibility that the Convention intended for other States to have rights in the exclusive economic zone in excess of those specified.
244.
The same considerations apply with respect to the sovereign rights of the continental shelf, which are set out in Article 77 of the Convention. On the continental shelf, the rights of other States are limited to laying cables and pipelines and to the rights and freedoms to which they are otherwise entitled in the superjacent waters. Indeed, the provisions of the Convention concerning the continental shelf are even more explicit that rights to the living and non-living resources pertain to the coastal State exclusively. Article 77(2) expressly provides that "[t]he rights referred to in paragraph 1 [relating to natural resources] are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State." Article 81 similarly states that "[t]he coastal State shall have the exclusive right to authorize and regulate drilling on the continental shelf for all purposes."
245.
Moving from the text to the context of exclusive economic zone rights, the Tribunal recalls its earlier observation (see paragraph 231 above) that the system of maritime zones created by the Convention was intended to be comprehensive and to cover any area of sea or seabed. The same intention for the Convention to provide a complete basis for the rights and duties of the States Parties is apparent in the Preamble, which notes the intention to settle "all issues relating to the law of the sea" and emphasises the desirability of establishing "a legal order for the seas." The same objective of limiting exceptions to the Convention to the greatest extent possible is also evident in Article 309, which provides that "[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention."
246.
China has stated its view that its "relevant rights in the South China Sea, formed in the long historical course" are "protected under international law including the United Nations Convention on the Law of the Sea (UNCLOS)."233 Insofar as China's relevant rights comprise a claim to historic rights to living and non-living resources within the 'nine-dash line', partially in areas that would otherwise comprise the exclusive economic zone or continental shelf of the Philippines, the Tribunal cannot agree with this position. The Convention does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones. China's claim to historic rights is not compatible with these provisions.
247.
The Tribunal considers the text and context of the Convention to be clear in superseding any historic rights that a State may once have had in the areas that now form part of the exclusive economic zone and continental shelf of another State. There is no ambiguity here that would call for the Tribunal to have recourse to the supplementary means of interpretation set out in Article 32 of the Vienna Convention. Nevertheless, in light of the sensitivity of the matters at issue in these proceedings, the Tribunal considers it warranted to recall the origin of and purpose behind the Convention's provisions on the exclusive economic zone and continental shelf.

ii. The Negotiation of the Convention and the Creation of the Exclusive Economic Zone

248.
The Tribunal recalls that prior to the adoption of the Convention, the principal failure of the First and Second UN Conferences on the Law of the Sea was the lack of agreement on the breadth of the territorial sea and the extent of coastal States' jurisdiction over the resources, then principally involving fisheries, of the waters adjacent to their coasts. This period coincided with the widespread decolonisation of developing States, and many newly independent governments sought to secure greater control over the waters adjacent to their coasts. The lack of agreement on an international standard and the growing capabilities of the long-distance fishing fleets of developed States led to the widespread unilateral declaration of exclusive fishing zones of varying breadths and to the declaration, by some States, of a 200-nautical-mile territorial sea. Such claims to zones, including the Icelandic exclusive fishing zones considered by the International Court of Justice in the Fisheries Jurisdiction cases,234 were generally opposed by the traditional maritime States, which sought to limit the scope of national jurisdiction.
249.
The creation of the Ad Hoc and Permanent Seabed Committees that preceded the Third UN Conference on the Law of the Sea was prompted by concern with this unregulated propagation of claims to maritime rights and jurisdiction and with the prospect that technological developments would rapidly enable the greater exploitation of the resources of the seabed, which would fall to those States most capable of claiming them.235 Latin American and African States organised around an assertion of greater control over coastal resources236 and draft articles on the concept of an exclusive economic zone were introduced by Kenya during the 1972 session of the Seabed Committee.237 In this form, the exclusive economic zone was a compromise proposal: a standardised form of coastal State jurisdiction—exclusive if the coastal State so desired—over living and non-living resources that nevertheless stopped short of extending the territorial sea beyond 12 nautical miles.
250.
The Tribunal recalls this history because it frames the debates that took place during the negotiation of the Convention. Japan and the Soviet Union possessed the largest distant sea fishing fleets and sought to preserve the status quo, advancing proposals that would have provided only for "preferential rights" for coastal States, while protecting the position of traditional fishing States. As summarised by Japan:

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.

251.
In the course of these debates, China actively positioned itself as one of the foremost defenders of the rights of developing States and was resolutely opposed to any suggestion that coastal States could be obliged to share the resources of the exclusive economic zone with other powers that had historically fished in those waters. The Tribunal considers the remarks of Mr. Ling Ching on behalf of China during the 24th meeting of the Second Committee to be representative of the committed position that China repeatedly took during the negotiation of the Convention:

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

252.
The Tribunal notes these comments not because the remarks of any particular State during the negotiation of a multilateral Convention are indicative of the content of the final treaty, but because China's resolute opposition to any accommodation of historic fishing is largely representative of the position that prevailed in the final text of the Convention. The Tribunal also notes that China's position, as asserted during the negotiation of the Convention, is incompatible with a claim that China would be entitled to historic rights to living and non-living resources in the South China Sea that would take precedence over the exclusive economic zone rights of the other littoral States. China never advanced such a claim during the course of the negotiations, notwithstanding that the South China Sea and the question of sovereignty over the Spratly Islands was raised on several occasions in exchanges between China and the Philippines during the work of the Seabed Committee241 and between China and Viet Nam during the Third UN Conference.242
253.
The Tribunal also considers the negotiating history of the Convention instructive for the light it sheds on the intent for the Convention to serve as a comprehensive text and the importance to that goal of the prohibition on reservations enshrined in Article 309. The Convention was negotiated on the basis of consensus and the final text represented a package deal. A prohibition on reservations was seen as essential to prevent States from clawing back through reservations those portions of the final compromise that they had opposed in negotiations. In this respect the Convention follows the practice of other multilateral treaties considered to be of fundamental importance, including the UN Charter, the Rome Statute of the International Criminal Court, and the UN Framework Convention on Climate Change. The importance of a comprehensive agreement, without reservations, is well expressed in the Conference President's remarks to the Informal Plenary and Group of Legal Experts tasked with preparing the final clauses:

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

254.
On this issue, the Tribunal notes that China and other States were opposed to a complete ban on reservations244 and that the final approach in the Convention represents a compromise: certain permissible reservations are set out in the text of the Convention while any other reservation is prohibited. Thus China was entitled to, and did, activate the reservations to compulsory dispute settlement in Article 298—that the Tribunal has already determined do not apply to the present dispute—but is not entitled to except itself from the system of compulsory settlement generally.245 In the Tribunal's view, the prohibition on reservations is informative of the Convention's approach to historic rights. It is simply inconceivable that the drafters of the Convention could have gone to such lengths to forge a consensus text and to prohibit any but a few express reservations while, at the same time, anticipating that the resulting Convention would be subordinate to broad claims of historic rights.

iii. Rights in the Exclusive Economic Zone in other Disputes concerning the Law of the Sea

255.
The present dispute is not the first instance in which a State has claimed rights in or to the exclusive economic zone of a neighbouring State. The Tribunal considers it useful, for the purpose of confirming its own reasoning, to briefly canvas the other decisions to have addressed claims involving rights in the exclusive economic zone of another State.
256.
In the Tribunal's view, the most relevant instance occurs in the consideration given to historic fishing activities in the delimitation of the Gulf of Maine between the United States and Canada by a chamber of the International Court of Justice. The area to be delimited included the Georges Bank, with its abundant fisheries resources, and the United States argued that the delimitation line should take account of the longstanding use of the bank by U.S. fishermen. The Chamber not only rejected this argument for the purposes of the delimitation, but went on to comment on the nature of U.S. fishing rights and the effect on U.S. fishing activities of the adoption by the United States and Canada of exclusive fisheries zones, the case having been instituted prior to the declaration of a full exclusive economic zone by the United States but at a time when States had already begun to declare such zones unilaterally in reflection of the emerging consensus at the Third UN Conference. In this context, the Chamber in Gulf of Maine commented as follows:

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

257.
The present case does not, of course, involve delimitation, but the Tribunal considers the Chamber's views on the effect of exclusive fisheries zones, declared as a matter of customary law, to confirm its own interpretation of the provisions of the Convention. The Tribunal has no doubt that Chinese fisherman have long made use of the waters of the South China Sea, including in areas beyond the territorial sea of any feature. If China had historic rights giving it a privileged position with respect to the resources of such waters, the acceptance of the exclusive economic zone as a matter of customary law and China's adherence to the Convention altered that situation. Through the Convention, China gained additional rights in the areas adjacent to its coasts that became part of its exclusive economic zone, including the areas adjacent to any island entitled to such a zone. It necessarily follows, however, that China also relinquished the rights it may have held in the waters allocated by the Convention to the exclusive economic zones of other States.
258.
A contrary indication could be ascribed to the decision of the International Court of Justice in the Fisheries Jurisdiction Cases.247 In those disputes, which concerned Iceland's declaration of a 50-nautical-mile exclusive fishing zone, the Court held that the preferential rights asserted by Iceland's fishing zone were not compatible with the exclusion of all fishing by other States and that Iceland could not extinguish the rights of other States to have habitually fished in the area.248 In the Tribunal's view, however, this decision from 1974 must be understood in the context of the law of the sea as it then was, which differs from the law prevailing under the Convention or in the emergent customary law of the exclusive economic zone in effect at the time of Gulf of Maine. As an initial matter, the Tribunal notes that the applicants in Fisheries Jurisdiction, the United Kingdom and the Federal Republic of Germany, never asserted that their historical fishing superseded Iceland's declaration of a fisheries zone, but merely claimed a right of access. This thus differs fundamentally from the present proceedings, where the Tribunal understands China to consider that its claimed historic rights to living and non-living resources effectively negate the exclusive economic zone rights of other littoral States to the South China Sea. Notwithstanding this difference, the Tribunal also considers the reasoning exhibited in Fisheries Jurisdiction to be inapplicable under the present law of the sea. At the time Iceland declared its 50-nautical-mile zone in July 1972, the extension of national jurisdiction over maritime areas beyond the territorial sea was still a hotly contested issue. As the Court read the state of customary law then prevailing, it permitted an exclusive fishing zone of only 12 nautical miles and preferential rights in an undefined area beyond that limit.249 Only a few short years later, however, the processes at work in the Third UN Conference (described above at paragraph 249 to 252) crystallised into the consensus in favour of the exclusive economic zone. The law applied in Gulf of Maine and recorded in the Convention thus differed materially from that considered by the Court in Fisheries Jurisdiction.
259.
A contrary approach to Gulf of Maine might also be identified in the Eritrea v. Yemen arbitration, in which the arbitral tribunal emphasised the importance of preserving traditional fishing practices in the Red Sea which had been carried on for centuries, without regard for the specifics of maritime boundaries. The arbitral tribunal also held that "[t]he traditional fishing regime is not limited to the territorial waters of specified islands" but extended also through the exclusive economic zone of Eritrea and Yemen.250 The Philippines distinguishes this decision251—correctly in the Tribunal's view—on the basis of applicable law. Eritrea v. Yemen was not an arbitration under Annex VII to the Convention and that arbitral tribunal was not bound by Article 293 to apply only the Convention and rules of law not incompatible therewith. Instead, the Parties' arbitration agreement empowered the arbitral tribunal, in the second stage of the proceedings to render its decision "taking into account the opinion that it will have formed on questions of territorial sovereignty, the United Nations Convention on the Law of the Sea, and any other pertinent factor."252 The arbitral tribunal in Eritrea v. Yemen was thus empowered to—and in the Tribunal's view did—go beyond the law on traditional fishing as it would exist under the Convention. The Tribunal will address below the scope of traditional fishing rights under the current law of the sea in connection with the Philippines' Submission No. 10.
260.
Finally, the Tribunal notes that the arbitral tribunal in the Chagos Marine Protected Area Arbitration held that Mauritius had rights in the exclusive economic zone declared by the United Kingdom surrounding the British Indian Ocean Territory. These were not fishing rights, in light of the Convention's prohibition in Article 297 on compulsory settlement regarding disputes over sovereign rights with respect to the living resources in the exclusive economic zone, but rather a right to the eventual return of the Chagos Archipelago when no longer needed for defence purposes and a right to the benefit of any oil or minerals discovered in or near the Chagos Archipelago. These rights had their origins in assurances given in 1968 in connection with the detachment of the Chagos Archipelago from the then-colony of Mauritius that were repeated by the United Kingdom thereafter. In that case, however, not only did the United Kingdom not argue that Mauritius's rights were extinguished by the United Kingdom's declaration of an Environmental Protection and Preservation Zone/Fisheries Conservation and Management Zone, but it reiterated its undertakings thereafter253 and emphasised that the zone it had created was not an exclusive economic zone for purposes beyond fisheries and environmental protection.254 Article 311 permits States to agree to modify certain aspects of the Convention as between them (an issue the Tribunal will return to below) and the Tribunal considers the United Kingdom's reiteration of its undertakings following the adoption of the Convention to fall within the ambit of that provision.
261.
For all of the reasons discussed above, the Tribunal concludes that China's claim to historic rights to the living and non-living resources within the 'nine-dash line' is incompatible with the Convention to the extent that it exceeds the limits of China's maritime zones as provided for by the Convention. This is apparent in the text of the Convention which comprehensively addresses the rights of other States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights. It is also reinforced by the negotiating record of the Convention where the importance of adopting a comprehensive instrument was manifest and where the cause of securing the rights of developing States over their exclusive economic zone and continental shelf was championed, in particular, by China.
262.
Accordingly, upon China's accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the 'nine-dash line' were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State's prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention's limits.

(b) China's Claim to Historic Rights in the South China Sea

263.
The Tribunal has held, in the preceding Section, that the entry into force of the Convention had the effect of superseding any claim by China to historic rights to the living and non-living resources within the 'nine-dash line' beyond the limits of China's maritime zones as provided for by the Convention. This conclusion would, in one sense, suffice to decide the dispute presented by the Philippines' Submissions No. 1 and 2. The Tribunal nevertheless considers it important, for the sake of completeness, to distinguish among China's claims to historic rights and to separate those that are, in fact, in excess of and incompatible with the Convention, from those that are not. The Tribunal considers that, in ratifying the Convention, China has, in fact, relinquished far less in terms of its claim to historic rights than the foregoing conclusion might initially suggest. The Tribunal also considers that this is an area where communications between the Parties have been characterised by a high degree of confusion and misunderstanding.
264.
In its public statements, diplomatic correspondence, and in its public Position Paper of 7 December 2014, China has repeatedly asserted its sovereignty over the Spratly Islands and Scarborough Shoal.255 According to China, its nationals have historically engaged in navigation and trade in the South China Sea and the activities of Chinese fishermen in residing, working, and living among the Spratly Islands "are all manifestly recorded in Geng Lu Bu (Manual of Sea Routes) which was passed down from generation to generation among Chinese fishermen."256 There is, indeed, much interesting evidence—from all sides—that could be considered by a tribunal empowered to address the question of sovereignty over the Spratly Islands and Scarborough Shoal. This Tribunal, however, is not empowered to address that question. For its part, the Philippines has likewise argued about the historical limits of China's land territory, the degree of China's historical commitment to oceangoing trade and navigation, and China's historical knowledge concerning the Spratly Islands. In the Tribunal's view, however, much of this evidence—on both sides—has nothing to do with the question of whether China has historically had rights to living and non-living resources beyond the limits of the territorial sea in the South China Sea and therefore is irrelevant to the matters before this Tribunal.
265.
The Tribunal recalls that the process for the formation of historic rights in international law is well summarised in the UN Secretariat's 1962 Memorandum on the Juridical Regime of Historic Waters, Including Historic Bays and requires the continuous exercise of the claimed right by the State asserting the claim and acquiescence on the part of other affected States. Although that memorandum discussed the formation of rights to sovereignty over historic waters, as the Tribunal noted above (see paragraph 225), historic waters are merely one form of historic right and the process is the same for claims to rights short of sovereignty.
266.
Accordingly, the scope of a claim to historic rights depends upon the scope of the acts that are carried out as the exercise of the claimed right. Evidence that either the Philippines or China had historically made use of the islands of the South China Sea would, at most, support a claim to historic rights to those islands. Evidence of use giving rise to historic rights with respect to the islands, however, would not establish historic rights to the waters beyond the territorial sea. The converse is also true: historic usage of the waters of the South China Sea cannot lead to rights with respect to the islands there. The two domains are distinct.
267.
Because the Tribunal is not addressing questions of sovereignty, evidence concerning either Party's historical use of the islands of the South China Sea is of no interest with respect to the formation of historic rights (although, as will be discussed below (see paragraphs 549 to 551), it may bear upon the status of features pursuant to Article 121(3)). The Tribunal does find it relevant, however, to consider what would be required for it to find that China did have historic maritime rights to the living and non-living resources within the 'nine-dash line'.
268.
On this issue, the Tribunal notes that historic rights are, in most instances, exceptional rights. They accord a right that a State would not otherwise hold, were it not for the operation of the historical process giving rise to the right and the acquiescence of other States in the process. It follows from this, however, that the exercise of freedoms permitted under international law cannot give rise to a historic right; it involves nothing that would call for the acquiescence of other States and can only represent the use of what international law already freely permits.
269.
Prior to the introduction of the Convention system—and certainly prior to the Second World War—the international legal regime for the oceans recognised only a narrow belt of territorial sea and the vast areas of high seas that comprised (and still comprise) the majority of the oceans. Under this regime, nearly all of the South China Sea formed part of the high seas, and indeed China's Declaration of the Government of the People's Republic of China on China's Territorial Sea of 4 September 1958 expressly recognises that it applies to "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."257 For much of history, therefore, China's navigation and trade in the South China Sea, as well as fishing beyond the territorial sea, represented the exercise of high seas freedoms. China engaged in activities that were permitted to all States by international law, as did the Philippines and other littoral States surrounding the South China Sea. Before the Second World War, the use of the seabed, beyond the limits of the territorial sea, was likewise a freedom open to any State that wished to do so, although as a practical matter the technological ability to do so effectively has emerged only more recently.
270.
Historical navigation and fishing, beyond the territorial sea, cannot therefore form the basis for the emergence of a historic right. As the Chamber in Gulf of Maine recognised with respect to historic U.S. fishing on the Georges Bank, such activity was merely the exercise of freedoms already permitted by international law.258 Evidence that merely points to even very intensive Chinese navigation and fishing in the South China Sea would be insufficient. Instead, in order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China had engaged in activities that deviated from what was permitted under the freedom of the high seas and that other States acquiesced in such a right. In practice, to establish the exclusive historic right to living and non-living resources within the 'nine-dash line', which China now appears to claim, it would be necessary to show that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced in such restrictions. In the Tribunal's view, such a claim cannot be supported. The Tribunal is unable to identify any evidence that would suggest that China historically regulated or controlled fishing in the South China Sea, beyond the limits of the territorial sea. With respect to the non-living resources of the seabed, the Tribunal does not even see how this would be theoretically possible. Seabed mining was a glimmer of an idea when the Seabed Committee began the negotiations that led to the Convention. Offshore oil extraction was in its infancy and only recently became possible in deep water areas. Indeed, the China National Offshore Oil Corporation itself was only founded in 1982, the same year that China signed the Convention. With respect to the seabed, the Tribunal does not see any historical activity that could have been restricted or controlled, and correspondingly no basis for a historic right.
271.
Accordingly, in the Tribunal's view, China's ratification of the Convention in June 1996 did not extinguish historic rights in the waters of the South China Sea. Rather, China relinquished the freedoms of the high seas that it had previously utilised with respect to the living and non-living resources of certain sea areas which the international community had collectively determined to place within the ambit of the exclusive economic zone of other States. At the same time, China gained a greater degree of control over the maritime zones adjacent to and projecting from its coasts and islands. China's freedom to navigate the South China Sea remains unaffected.
272.
Finally, because the Tribunal considers the question of historic rights with respect to maritime areas to be entirely distinct from that of historic rights to land, the Tribunal considers it opportune to note that certain claims remain unaffected by this decision. In particular, the Tribunal emphasises that nothing in this Award should be understood to comment in any way on China's historic claim to the islands of the South China Sea. Nor does the Tribunal's decision that a claim of historic rights to living and non-living resources is not compatible with the Convention limit China's ability to claim maritime zones in accordance with the Convention, on the basis of such islands. The Tribunal will address the question of the entitlements that can be generated by different features in the South China Sea in the following Chapter.

(c) Whether China has Established Exceptional Rights or Jurisdiction since the Adoption of the Convention

273.
As a final matter, and for the sake of completeness, the Tribunal considers it appropriate to briefly address whether China has acquired rights or jurisdiction at variance with the Convention in the years since the Convention entered into force in 1996.
274.
Paragraphs 3 and 4 of Article 311 of the Convention permit States to agree between them to modify the operation of the Convention between them, provided that such agreements are notified to other States Parties, do not affect the rights of other States, and are in keeping with the object and purpose of the 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.

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.

275.
The Tribunal does not consider it necessary here to address in general whether and under which conditions the Convention may be modified by State practice.259 It is sufficient to say that a unilateral act alone is not sufficient. Such a claim would require the same elements discussed above with respect to historic rights: the assertion by a State of a right at variance with the Convention, acquiescence therein by the other States Parties, and the passage of sufficient time to establish beyond doubt the existence of both the right and a general acquiescence. Here, however, there is no basis for such a claim. Since the adoption of the Convention, historic rights were mentioned in China's Exclusive Economic Zone and Continental Shelf Act,260 but without anything that would enable another State to know the nature or extent of the rights claimed. The extent of the rights asserted within the 'nine-dash line' only became clear with China's Notes Verbales of May 2009. Since that date, China's claims have been clearly objected to by other States. In the Tribunal's view, there is no acquiescence.

(d) Conclusion

276.
The Philippines' Submissions No. 1 and 2 are linked and represent two aspects of one dispute concerning the source of maritime rights and entitlements in the South China Sea.
277.
With respect to Submission No. 1, for the reasons set out above, the Tribunal concludes that, as between the Philippines and China, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein.
278.
With respect to Submission No. 2, for the reasons set out above, the Tribunal concludes that, as between the Philippines and China, China's claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the 'nine-dash line' are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China's maritime entitlements under the Convention. The Tribunal concludes that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.

VI. THE STATUS OF FEATURES IN THE SOUTH CHINA SEA (SUBMISSIONS NO. 3 TO 7)

A. INTRODUCTION

279.
In this Chapter, the Tribunal assesses the status of certain maritime features and the entitlements to maritime zones that they are capable of generating for the purposes of the Convention.
280.
In the terminology of the Convention, a feature that is exposed at low tide but covered with water at high tide is referred to as a 'low-tide elevation'. Features that are above water at high tide are referred to generically as 'islands'. However, the entitlements that an island can generate to maritime zones will depend upon the application of Article 121(3) of the Convention and whether the island has the capacity to "sustain human habitation or economic life of [its] own." Throughout this Chapter, the Tribunal will refer to the generic category of features that meet the definition of an island in Article 121(1) as 'high-tide features'. The Tribunal will use the term 'rocks' for high-tide features that "cannot sustain human habitation or economic life of their own" and which therefore, pursuant to Article 121(3), are disqualified from generating an exclusive economic zone or continental shelf. For high-tide features which are not rocks, and which pursuant to Article 121(2) enjoy the same entitlements as other land territory under the Convention, the Tribunal will use the term 'fully entitled islands'. 'Rocks' and 'fully entitled islands' are thus both sub-sets of the broader category of 'high-tide features'. Finally, the Tribunal will refer to features that are fully submerged, even at low tide, as 'submerged features'.

B. THE STATUS OF FEATURES AS ABOVE/BELOW WATER AT HIGH TIDE (SUBMISSIONS NO. 4 AND 6)

1. Introduction

281.
In this Section, the Tribunal addresses the Parties' dispute concerning the status of the maritime features and the source of maritime entitlements in the South China Sea. This dispute is reflected in the Philippines' Submissions No. 4 and 6, which request the Tribunal to hold that certain specified features are low-tide elevations and do not generate any independent entitlement to maritime zones. Submissions No. 4 and 6 provide as follows:

(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;

282.
The question of whether features are above or below water at high tide is also implicated by the Philippines' Submissions No. 3 and 7, which are predicated on the Philippines' view that Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are high-tide features with rocks that remain above water at high tide. For the sake of completeness, and in keeping with its duty under Article 9 of Annex VII to the Convention to satisfy itself that the Philippines' Submissions are well founded in fact, the Tribunal will examine the status, as above or below water at high tide, of all ten features identified in the Philippines' Submissions.
283.
In its Award on Jurisdiction, the Tribunal held that these Submissions reflect a dispute concerning the status of maritime features in the South China Sea and not a dispute concerning sovereignty over such features. The Tribunal also held that this is not a dispute concerning sea boundary delimitation, insofar as "the status of a feature as a 'low-tide elevation', 'island', or a 'rock' relates to the entitlement to maritime zones generated by that feature, not to the delimitation of such entitlements in the event that they overlap."261 The Tribunal noted, however, that the possible existence of overlapping entitlements to an exclusive economic zone or continental shelf could have "practical considerations for the selection of the vertical datum and tidal model against which the status of the features is to be assessed."262

2. Factual Background

284.
Scarborough Shoal is known as "Huangyan Dao" (黄岩岛) in China and "Panatag Shoal" or "Bajo de Masinloc" in the Philippines and is a coral reef located at 15° 09' 16" N, 117° 45' 58" E. Scarborough Shoal is 116.2 nautical miles from the archipelagic baseline of the Philippine island of Luzon and 448.2 nautical miles from China's baseline point 29 (Jiapengliedao) near Hong Kong.263 The general location of Scarborough Shoal is depicted in Map 2 on page 123 below.
285.
Cuarteron Reef is known as "Huayang Jiao" (华阳礁) in China and "Calderon Reef" in the Philippines. It is a coral reef located at 08° 51' 41" N, 112° 50' 08" E and is the easternmost of four maritime features known collectively as the London Reefs that are located on the western edge of the Spratly Islands. Cuarteron Reef is 245.3 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 585.3 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to the island of Hainan. The general location of Cuarteron Reef, along with the other maritime features in the Spratly Islands, is depicted in Map 3 on page 125 below.
286.
Fiery Cross Reef is known as "Yongshu Jiao" (永暑礁) in China and "Kagitingan Reef" in the Philippines. It is a coral reef located at 09° 33' 00" N, 112° 53' 25" E, to the north of Cuarteron Reef and along the western edge of the Spratly Islands, adjacent to the main shipping routes through the South China Sea. Fiery Cross Reef is 254.2 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 547.7 nautical miles from the China's baseline point 39 (Dongzhou (2)) adjacent to the island of Hainan.
287.
Johnson Reef, McKennan Reef, and Hughes Reef are all coral reefs that form part of the larger reef formation in the centre of the Spratly Islands known as Union Bank. Union Bank also includes the high-tide feature of Sin Cowe Island. Johnson Reef (also known as Johnson South Reef) is known as "Chigua Jiao" (赤瓜礁) in China and "Mabini Reef" in the Philippines. It is located at 9° 43' 00" N, 114° 16' 55" E and is 184.7 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 570.8 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan. Although the Philippines has referred to "McKennan Reef (including Hughes Reef)" in its Submissions, the Tribunal notes that McKennan Reef and Hughes Reef are distinct features, albeit adjacent to one another, and considers it preferable, for the sake of clarity, to address them separately. McKennan Reef is known as "Ximen Jiao" (西门礁) in China and, with Hughes Reef, is known collectively as "Chigua Reef" in the Philippines. It is located at 09° 54' 13" N, 114° 27' 53" E and is 181.3 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 566.8 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan. Hughes Reef is known as "Dongmen Jiao" (东门礁) in China and, with McKennan Reef, is known collectively as "Chigua Reef" in the Philippines. It is located at 09° 54' 48" N 114°29' 48" E and is 180.3 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 567.2 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan.
288.
The Gaven Reefs are known as "Nanxun Jiao" (南 薰礁) in China and "Burgos" in the Philippines. They constitute a pair of coral reefs that forms part of the larger reef formation known as Tizard Bank, located directly to the north of Union Bank. Tizard Bank also includes the high-tide features of Itu Aba Island, Namyit Island, and Sand Cay. Gaven Reef (North) is located at 10° 12' 27" N, 114° 13' 21" E and is 203.0 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 544.1 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan. Gaven Reef (South) is located at 10° 09' 42" N 114° 15' 09" E and is 200.5 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 547.4 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan.
289.
Subi Reef is known as "Zhubi Jiao" (渚碧礁) in China and "Zamora Reef" in the Philippines. It is a coral reef located to the north of Tizard Bank and a short distance to the south-west of the high-tide feature of Thitu Island and its surrounding Thitu Reefs. Subi Reef is located at 10° 55' 22" N, 114° 05' 04" E and lies on the north-western edge of the Spratly Islands. Subi Reef is 231.9 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 502.2 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan.
290.
Mischief Reef and Second Thomas Shoal are both coral reefs located in the centre of the Spratly Islands, to the east of Union Bank and to the south-east of Tizard Bank. Mischief Reef is known as "Meiji Jiao" (美济礁) in China and "Panganiban" in the Philippines. It is located at 09° 54' 17" N, 115° 31' 59" E and is 125.4 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 598.1 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan. Second Thomas Shoal is known as "Ren'ai Jiao" (仁爱礁) in China and "Ayungin Shoal" in the Philippines. It is located at 09° 54' 17" N, 115° 51' 49" E and is 104.0 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 616.2 nautical miles from China's baseline point 39 (Dongzhou (2)) adjacent to Hainan.

3. The Philippines' Position

291.
The Philippines recalls that low-tide elevations are defined and governed by Article 13 of the Convention.264 "[L]ow-tide elevations are not land territory," the Philippines emphasises, and "no measure of occupation or control can establish sovereignty over such features."265 According to the Philippines, low-tide elevations can be divided into three categories:

(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

292.
The Philippines submits that each of the five maritime features mentioned in its Submissions

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

293.
The Philippines supports its conclusions with two types of satellite imagery. First, the Philippines has provided the Tribunal with what it describes as "multi-band Landsat satellite photographs of each of the five low-tide features."271 According to the Philippines, this imagery was prepared as follows:

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

294.
Second, the Philippines has provided the Tribunal with satellite imagery analysis prepared by the EOMAP company that depicts the five features bathymetrically at what EOMAP calculates to be Lowest Astronomic Tide, Highest Astronomic Tide, and Mean High Water.274 The Philippines submits that EOMAP's analysis likewise confirms that all five features are below water at high tide.275
295.
In addition to satellite analysis, the Philippines relies on what it considers to be the consistent depiction of all five features as low-tide elevations in all published charts and on the corresponding descriptions of the features as submerged at high tide in sailing directions and pilots. The Philippines summarises its conclusions on the available evidence as follows:

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

296.
During the hearing, the Philippines was questioned by the Tribunal regarding the depiction of the Gaven Reefs in U.S. Defense Mapping Agency Chart No. 93043 (Tizard Bank South China Sea)277 and the description of the feature in the U.S. Sailing Directions (Enroute), South China Sea and the Gulf of Thailand.278 The Philippines responded as follows:

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

297.
During the hearing, the Philippines' expert was also questioned by the Tribunal as to whether or not Subi Reef lies within 12 nautical miles of a high-tide feature on the reefs to the west of Thitu Island. In response, the Philippines submitted additional analysis from EOMAP and the following conclusion:

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

4. China's Position

298.
China has not, as far as the Tribunal is aware, specifically set out its position with respect to all of the maritime features at issue in these proceedings. Indeed, the Tribunal recalls that in its public Position Paper of 7 December 2014, China stated that:

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

299.
The Tribunal notes, however, that the record of public statements and diplomatic correspondence before it includes the Chinese statement that "Huangyan Dao [Scarborough Shoal] is not a sand bank but rather an island."283
300.
The Tribunal also notes China's statement that "China has indisputable sovereignty over Nansha Islands and their adjacent waters, Meiji Jiao [Mischief Reef] and Yongshu Jiao [Fiery Cross Reef] included."284 This statement is not entirely without ambiguity, but the Tribunal understands it to mean that China considers Mischief Reef and Fiery Cross Reef to be high-tide features, entitled to at least a territorial sea.
301.
China has also commented on the entitlements of the maritime features of the Spratly Islands collectively, stating that "China's Nansha Islands is fully entitled to Territorial Sea, Exclusive Economic Zone (EEZ) and Continental Shelf."285
302.
The Tribunal recalls the statement in its Award on Jurisdiction that "a dispute is not negated by the absence of granular exchanges with respect to each and every individual feature."286 Where China has not publicly stated its specific view regarding the status of a particular feature, the Tribunal will assess the status of the feature on the basis of the best evidence available to it, paying particular attention to the depiction of features on nautical charts or the descriptions in sailing directions issued by China.

5. The Tribunal's Considerations

(a) The Interpretation of Article 13 and the Tribunal's Approach to Submissions No. 4 and 6

303.
The definition and properties of low-tide elevations are set out in Article 13 of the Convention, which provides as follows:

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.

304.
This definition operates in parallel with that of an island in Article 121(1) of the Convention, which provides that "[a]n island is a naturally formed area of land, surrounded by water, which is above water at high tide." The latter Article will be discussed in detail subsequently in connection with the Philippines' Submissions No. 3, 5, and 7 (see paragraphs 473 to 553 below).

i. Naturally Formed Areas and the Human Modification of Coral Reefs

305.
With respect to low-tide elevations, several points necessarily follow from this pair of definitions. First, the inclusion of the term "naturally formed" in the definition of both a low-tide elevation and an island indicates that the status of a feature is to be evaluated on the basis of its natural condition. As a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it.
306.
This point raises particular considerations in the present case. Many of the features in the South China Sea have been subjected to substantial human modification as large islands with installations and airstrips have been constructed on top of the coral reefs. In some cases, it would likely no longer be possible to directly observe the original status of the feature, as the contours of the reef platform have been entirely buried by millions of tons of landfill and concrete. In such circumstances, the Tribunal considers that the Convention requires that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification. The Tribunal will therefore reach its decision on the basis of the best available evidence of the previous status of what are now heavily modified coral reefs.

ii. The Status and Entitlements of Low-Tide Elevations

307.
The Philippines' Submissions request the Tribunal to declare that those features which qualify as low-tide elevations under Article 13 are not entitled to maritime zones and are not capable of appropriation or occupation. These Submissions thus raise the question of the status and entitlements of low-tide elevations.
308.
Article 13(2) states that, except where a low-tide elevation falls within the breadth of a territorial sea generated from a high-tide feature or mainland, it generates no territorial sea of its own. Article 13(2) does not expressly state that a low-tide elevation is not entitled to an exclusive economic zone or continental shelf. Nevertheless the Tribunal considers that this restriction is necessarily implied in the Convention. It follows automatically from the operation of Articles 57 and 76, which measure the breadth of the exclusive economic zone and continental shelf from the baseline for the territorial sea. Ipso facto, if a low-tide elevation is not entitled to a territorial sea, it is not entitled to an exclusive economic zone or continental shelf. The same restriction follows implicitly from Article 121(3), which provides that even certain high-tide features are deemed to be rocks that are ineligible to generate an exclusive economic zone or continental shelf.
309.
With respect to the status of low-tide elevations, the Tribunal considers that notwithstanding the use of the term "land" in the physical description of a low-tide elevation, such low-tide elevations do not form part of the land territory of a State in the legal sense. Rather they form part of the submerged landmass of the State and fall within the legal regimes for the territorial sea or continental shelf, as the case may be. Accordingly, and as distinct from land territory, the Tribunal subscribes to the view that "low-tide elevations cannot be appropriated, although 'a coastal State has sovereignty over low-tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself'."287

iii. Vertical Datum and the Meaning of "High Tide" in Articles 13 and 121

310.
A further consideration is posed by the use of the term "high tide" in the definition of both a low-tide elevation and an island. "High tide" is not a technical term and is potentially subject to a number of different technical interpretations, corresponding with different measurements and water levels. Common datums for measuring high water include Mean High Water (the average height of all high waters at a place over a 19-year period), Mean Higher High Water (the average height of higher high water at a place over a 19-year period), and Mean High Water Springs (the average height of the high waters of spring tides).288 The International Hydrographic Organization (the "IHO") recommends that a high-water datum be used as the reference datum for heights depicted on nautical charts, but makes no recommendation as between the possibilities.289 The IHO specifically recommends that Highest Astronomic Tide (the highest tidal level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions) be used as the datum for vertical clearances (i.e., bridges), but only for this purpose.290