Dela Rosa, Talisa

Espiritu, Janine
Salamat, Joannah

It has been more than a year since the Arbitral Tribunal ruled in favor of the Philippines.
It was indeed a great victory for the Philippines, but ever since the award was released, there
has been no changes.

In 2009, the Philippines aligned its baselines with the United Nations Convention on
the Law of the Sea (UNCLOS) in Republic Act No. 9522. The Supreme Court declared that
without a baseline law that was compliant with UNCLOS, the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its maritime zones
and continental shelf is measured.1 Absent an UNCLOS compliant law, the Philippines would
be sending an open invitation to foreign seafarers to enter and exploit its waters and
resources. It also weakens the countrys case in the event of an international dispute over the
Philippines maritime space.2 With RA No. 9522, the Philippines is able to safeguard its
maritime zones through an internationally recognized delimitation. But current events have
shown that even internationally recognized delimitations can be challenged and even ignored.

When Vietnam and Malaysia submitted to the United Nations (UN) their extended
continental shelf (ECS) claims,3 China protested with the use of their nine-dashed line. They
claimed to have 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 The above position is consistently held by the Chinese
government, and is widely known by the international community.4 Despite this hefty claim,
Chinas nine-dashed line does not comply with the requirements of UNCLOS.

The Philippines, Malaysia and Vietnam stand to lose a great deal due to Chinas claims.
Malaysia could lose 80% of its exclusive economic zone (EEZ), along with most of its active gas
and oil fields5 while Vietnam can lose 50% of its total EEZ. The Philippines stands to lose a
great deal given that its stake in the South China Sea accounts for 80% of its EEZ, and this
includes Reed Bank and the Malampaya gas field.6 Chinas claims also cover 100% of the
Philippine ECS, which is 150,000 square kilometers of maritime space. In total, Chinas claim
encloses 85.7% of the South China Sea, or almost 3 million square kilometers of South China
Seas 3.5 million square kilometers.7

Given that there are several maritime disputes, how exactly can the states go about
solving this? UNCLOS state parties have the option to settle disputes by agreement between
the parties.8

1
Magallona v. Ermita, G.R No. 187167, July 16, 2011 [Per J. Carpio, En Banc].
2
Id
3
See footnote 27 of carpio
4
The South China Sea Arbitration (Philippines v. China), Case no. 2013-19, Award, par. 182 (Permanent
Court of Arbitration 2016).
5
J A T. C, T S C S D : P S R
J W P S, 30 (2017).
6 J A T. C, T S C S D : P S R
J W P S, 34 (2017).
7
J A T. C, T S C S D : P S R
J W P S, 30 (2017).
8
J A T. C, T S C S D : P S R
J W P S, 48 (2017).
 One of Justice Antonio Carpios suggestions entails negotiating maritime boundaries
with Malaysia and Vietnam.9 Suggestion number five reads:10

5. The Philippines can negotiate maritime boundaries with Malaysia

(EEZ and ECS) and Vietnam (ECS), applying the Arbitral Tribunals ruling that
no geologic feature in the Spratlys generates an EEZ and that the nine-dashed
line has no legal effect on maritime entitlements. This will result in state
practice adopting the rulings in the Award.

China claims that Itu Aba and other islands in the Spratlys generate EEZs. 11 The Arbitral
Tribunal ruled that none of the 750 geologic features of the Spratlys is capable of human
habitation or economic life of its own.12 Thus, it cannot be entitled to a 200 NM EEZ.
Continental lands and islands are entitled to 200 NM EEZ measured from the baselines along
the coast if they are capable of human habitation or economic life.13 They are also entitled to
an ECS that does not exceed 150 NM from the outer limit of its EEZ. Most of the geologic
features of Spratlys are submerged at all times. Only few are above water during low tide and
only twenty-eight are above water at high tide.14 Itu Aba, although the largest geologic
feature in the Spratlys, is only entitled to 12 NM territorial sea since it does not meet the
requirements for it to have a 200 NM EEZ.

To be entitled to a 200 NM EEZ, there must be the (a) objective

capacity of a feature, (b) in its natural condition, to sustain either (c) a
stable community of people or (d) economic activity that is neither
dependent on outside resources nor purely extractive in nature 15

All seven reefs that China reclaimed in the Spratlys do not generate any EEZs. Fiery
Cross Reef, Johnson Reef, Gaven Reef, Cuarteron Reef and McKennan Reef are high-tide
elevations entitled only to a 12 NM territorial sea.16 Mischief Reef and Subi Reef are low-tide
elevations not entitled to a territorial sea. It is important to note that Mischief Reef is within
Philippine EEZ and is part of the Philippine continental shelf. Thus, Chinas structures on it are
illegal.17 Subi reef is also part of the Philippine ECS and only the Philippines can erect
structures or artificial islands on it. Reed Bank and Ayungin Shoal are also part of the
Philippine EEZ. Chinas reclamations on Mischief Reef and Subi Reef, LTEs within the
Philippine EEZ and ECS are illegal under UNCLOS.

Article 60, Part VI, UNCLOS, Artificial islands, installations and

structures in the exclusive economic zone:
1. In the exclusive economic zone, the coastal State shall have the exclusive
right to construct and to authorize and regulate the construction, operation
and use of:

9
J A T. C, T S C S D : P S R
J W P S, 216 (2017).
10
Id.
11
J A T. C, T S C S D : P S R
J W P S, 144 (2017).
12
J A T. C, T S C S D : P S R
J W P S, 97 (2017).
13
J A T. C, T S C S D : P S R
J W P S, 21 (2017)
14
J A T. C, T S C S D : P S R
J W P S, 97 (2017).
15
United Nations Convention on the Law of the Sea, December 10, 1982, Article 121(3), 1983 U.N.T.S.,
3 [hereinafter UNCLOS].
16
J A T. C, T S C S D : P S R
J W P S, 146 (2017).
17
Id
 (a) artificial islands;
(b) installations and structures for the purposes provided in Article 56
(exploitation of non-living resources in the seabed, marine scientific research,
protection and preservation of marine environment) and other economic
purposes...
....
2. The coastal state shall have exclusive jurisdiction over such artificial islands,
installations and structures, including jurisdiction with regard to customs,
fiscal, health, safety and immigration laws and regulations. 18

Now if for some reason, the reclamations of China were legal, it would still not change
the fact that those areas are LTEs. Under UNCLOS, the reclamation of an LTE would not
change the legal status of the LTE for purposes of entitlement to maritime zones. 19

Artificial islands, installations and structures do not possess the

status of islands. They have no territorial sea of their own, and their presence
does not affect the delimitation of the territorial sea, the exclusive economic
zone, or the continental shelf.20

China is also setting a dangerous precedent through their construction of military

facilities on Subi Reef. UNCLOS mandates that the high seas should be for peaceful purposes.
The construction of artificial islands and installations for non-peaceful purposes is prohibited
by UNCLOS.21

For the suggestion to work, the Philippines must first convince both Malaysia and
Vietnam to acknowledge the Arbitral Tribunals decision. Convincing Malaysia, however, may
prove difficult. Malaysia and China have strong economic ties.22 According to John Finkbeiner,
a representative for the US State Department, Malaysia is trying to balance its relationship
with China and the United States. On the one hand, Malaysia is careful not to provoke China
because in the recent years it has tried to lessen its economic dependence on the United
States by strengthening trade relations with China.23 On the other hand, Malaysia also
continues its positive relationship with the United States to help hedge against Chinese
dominance in Southeast Asia.24 The Philippines may use the Arbitral Tribunals decision to
convince Malaysia that trying to appease China will produce negative results in the long run.

The Arbitral Tribunal ruled that China has no entitlement whatsoever in any geologic
feature in the Spratlys,25 and that China has no legal basis for Its nine-dashed line claims.26
This decision would benefit Malaysia as China claims James Shoal a feature within Malaysias

18
United Nations Convention on the Law of the Sea, December 10, 1982, Article 60, 1983 U.N.T.S., 3
[hereinafter UNCLOS].
19
J A T. C, T S C S D : T P S R
J W P S, 153 (2017).
20
United Nations Convention on the Law of the Sea, December 10, 1982, Article 60(8), 1983 U.N.T.S., 3
[hereinafter UNCLOS].
21
United Nations Convention on the Law of the Sea, December 10, 1982, Article 80, 1983 U.N.T.S., 3
[hereinafter UNCLOS].
22
Camille Diola, Why Claimant Malaysia, Unlike Philippines, Keep Quiet on Searow, T P S,
June 25, 2014, <http://www.philstar.com/headlines/2014/06/25/1338864/why-malaysia-unlike-philippines-
keeps-quiet-sea-row> (last accessed August 13, 2017).
23
Id
24
John M. Finkbeiner, Malaysias Great Power Balance and the South China Sea Disputes, March 2013,
available at <www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA589214>(last accessed August 13, 2017).
25
The South China Sea Arbitration (Philippines v. China), Case no. 2013-19, Award, par. 132
(Permanent Court of Arbitration 2016).
26
The South China Sea Arbitration (Philippines v. China), Case no 2013-19, Award, par. 278
(Permanent Court of Arbitration 2016).
Exclusive Economic Zone (EEZ).27 The decision enumerated the damage that China has done
to the areas it claims in the Spratlys. It also shows the extent of Chinas nine-dash line claim. If
Malaysia decides to stay quiet regarding the issue, China would continue asserting its rights
on these disputed areas. China could use the same tactics it used on the Philippines to deny
Malaysia of its own rights on James Shoal. China already tried to show its sovereignty when It
conducted an oath-swearing ceremony on James Shoal.28

Convincing Vietnam to acknowledge the Arbitral Tribunals decision may be easier.

Vietnam is one of the most outspoken countries regarding the South China Sea dispute.29
China has been intimidating Vietnam with the same tactics that it has used for the
Philippines.30 This August 2017, Vietnam was forced to stop its oil exploration activities
because of protests from China.31 Further, Vietnam saw the Philippines landmark win against
China as a giant step toward its decades-long goal of creating a unified diplomatic front against
Chinese territorial encroachment in the South China Sea.32

The Philippines must use the importance and impact of its win against China to
convince both countries to adopt the Tribunals ruling. The Philippines must put emphasis on
the damage that Chinas nine-dashed line claims have on the marine environment.33 Malaysia
and Vietnam are asserting their rights on certain areas on the South China sea for economic
reasons.34 If both countries allow China to continue, the environmental damage may result in a
complete loss of the biodiversity of the South China Sea, thus, greatly affecting both Malaysia
and Vietnams resources.

Going back to Justice Carpios suggestion, if Malaysia and Vietnam adopt the ruling it
would result in State Practice. State practice is an essential element of customary
international law (CIL).35 According to the International Law Association, the two elements of
CIL are:36

(i) Subject to the Sections which follow, a rule of customary

international law is one which is created and sustained by the constant and
uniform practice of States and other subjects of international law in or
impinging upon their international legal relations, in circumstances which
give rise to a legitimate expectation of similar conduct in the future.

(ii) If a sufficiently extensive and representative number of States

participate in such a practice in a consistent manner, the resulting rule is
one of general customary international law. Subject to Section 15, such a
rule is binding on all States. [emphasis supplied]

27
J A T. C, T S C S D : T P S R
J W P S, 33 (2017).
28
139, D C. L, ., T R C 132 (2015).
29
Ralph Jennings, Why Malaysia Stays Quiet About Its Claims In the South China Sea, June 2, 2016,
available at <www.forbes.com/sites/ralphjennings/2016/06/02/why-malaysia-stays-quiet-about-its-claims-
in-the-disputed-south-china-sea> (last accessed August 13, 2017).
30
Mike Ives, Vietnam, Yielding to Beijing, Backs Off South China Sea Drilling, The New York Times,
August 4, 2017, <https://www.nytimes.com/2017/08/04/world/asia/vietnam-south-china-sea-repsol.html>
(last accessed August 13, 2017).
31
Id.
32
Id,
33
The South China Sea Arbitration (Philippines v. China), Case no. 2013-19, Award, par. 941
(Permanent Court of Arbitration 2016).
34
Pete Cobus, Conflict and Diplomacy on the High Seas, available at
<https://projects.voanews.com/south-china-sea/> (last accessed August 13, 2017).
35
Florida State University College of Law, Customary Law & General Principles, available at
<http://guides.law.fsu.edu/c.php?g=84838&p=547203> (last accessed August 13, 2017).
36
Mark Weisburd, The International Court of Justice and the Concept of State Practice, 31 U
P J I L 295, 301-302 (2009).
 In the 1969 North Sea Continental Shelf Case, the International Court of Justice (ICJ)
stated that state practice must not only must amount to a settled practice, but they must also
be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of the rule of law requiring it.37 Malaysia and Vietnam are both
signatories to UNCLOS.38 Article 123 of the convention enumerates the obligations of the
bordering states in regard to semi-enclosed seas. Article 123 states:39

Article 123
Cooperation of States bordering enclosed or semi-enclosed seas

States bordering an enclosed or semi-enclosed sea should cooperate

with each other in the exercise of their rights and in the performance of their
duties under this convention. To this end they shall endeavour, directly or
through an appropriate regional organization.

a) To coordinate the management, conservation, exploration and

exploitation of the living resources of the seal
b) To coordinate the implementation of their rights and duties with
respect to the protection and preservation of the marine
environment;
c) To coordinate their scientific research policies and undertake
where appropriate joint programmes of scientific research in the
area;
d) To invite, as appropriate, other interested States or international
organizations to cooperate with them in furtherance of the
provisions of this article.

The Philippines can use Article 123 to get Malaysia and Vietnam to cooperate in
ensuring that Chinas actions will not continue in the Spratlys. This may also serve as a catalyst
for both countries to agree to maritime negotiations. Maritime negotiations are mutually
beneficial to the parties involved.40 The maritime negotiations between Indonesia and the
Philippines is a great example. The negotiations also provided for maritime security in the
negotiated areas.41 The Philippines Department of Foreign Affairs stated that the agreement
is a milestone for Philippine-Indonesia relations as the EEZ boundary will open opportunities for
closer cooperation in the preservation and protection of the rich marine environment in the area,
increased trade, and enhanced maritime security.42 If the same can be done with Malaysia and
Vietnam, it would prevent future conflicts between the Philippines and the two countries as
the boundaries of each country's EEZ and ECS would be clearly defined.43 It would also

37
Michael P. Scharf, Accelerated Formation of Customary International Law in Times of Fundamental
Change, 20 ILSA J I C L 306, 311 (2014).
38
United Nations, Joint Submission to the Commission on the Limits of the Continental Shelf In Pursuant
to Article 76, paragraph 8 of the United Nations Convention on the Law of the Sea 1982 in Respect to the
South China Sea, available at
<http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutivesummary
.pdf> (last accessed August 13, 2017).
39
United Nations Convention on the Law of the Sea, December 10, 1982, Article 123, 1983 U.N.T.S., 3
[hereinafter UNCLOS].
40
S-Y H & J M. V D, M B D , S P ,
L S, 94 (2009).
41
Marguerite Afra Sapiie, Indonesia to Ratify EEZ Agreement with Philippines, T J P , April
18, 2017, <http://www.thejakartapost.com/news/2017/04/18/indonesia-to-ratify-eez-agreement-with-
philippines.html> (last accessed August 13, 2017).
42
Paterno Esmaquel II, Philippines, Indonesia, Seal Maritime Deal, Rappler, May 24, 2014,
<http://www.rappler.com/nation/58737-philippines-indonesia-eez-boundary-agreement> (last accessed
August 13, 2017).
43
Id.
strengthen the obligations that the countries have under UNCLOS. More importantly, it would
serve as a great stronghold against China.

The way that the Philippines, Vietnam and Malaysia could do this is by partaking in a
treaty. Treaties are international agreements that states may enter into. Under Philippine
laws, a treaty shall be valid and effective if at least two-thirds of all members of the Senate
agree to it.44 Treaties are governed by the Vienna Convention on the Law of Treaties. The
Vienna Convention states that international agreement is between states and is governed by
international law.45 The Philippines can convince Malaysia and Vietnam, its fellow Association
of Southeast Asian Nations (ASEAN) member-states to work together so that China does not
get the lions share of the South China Sea. The South China Sea dispute poses as a threat to
the ASEAN as a regional organization. It challenges the regions ability to manage and protect
the economic benefits of the ASEAN, as well as its civilians and environment. 46 It also blocks
the efforts of the region for further integration because of the disagreements about how to
solve the conflict. The ASEAN member states must have a united position toward the South
China Sea dispute and Justice Carpios fifth suggestion can be one way to do this.

Another way of enforcing the award, as suggested by Carpio, is to delineate the

Philippines Extended Continental Shelf (ECS) from Luzon:
Philippines can delineate its ECS from Luzon and file its claim with the
CLCS, there being no legal impediment from the nine-dashed line.
China, the only opposite coastal state, can raise two grounds to
oppose the Philippine ECS claim.47

The Philippines may indicate the exact location of its ECS from Luzon then file that
claim to the Commission on the Limits of the Continental Shelf (CLCS). The CLCS facilitates
the implementation of UNCLOS with regard to the establishment of the outer limits of the
continental shelf beyond 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured.48 China has submitted to the CLCS an information regarding the
limits of the continental shelf beyond 200 nautical miles from the baselines from which the
breadth of its territorial sea is measured in part of the East China Sea. 49 The only opposite
coastal state is China with regard to the Philippines ECS in Luzon. From there, China can raise
two grounds as to why the Philippines ECS.

First, China can raise its nine-dashed line claim to the CLCS so that the Philippines
cannot claim its ECS from Luzon. The nine-dashed line claim is the very core of the
Philippines dispute against China. As stated earlier, the nine-dashed line claims almost 80
percent of the Philippines EEZ and 100 percent of the Philippines ECS. 50 This means that

44
Section 2(b)Executive Order No. 459, Providing for the Guidelines in the Negotiation of International
Agreements and its Ratification
45
Vienna Convention art. 2 (1)(a)
46
Linh Tong, The ASEAN Crisis, Part 1: Why the South China Sea is a Critical Test, The Diplomat,
December 21, 2016 <http://thediplomat.com/2016/12/the-asean-crisis-part-1-why-the-south-china-sea-is-
a-critical-test/> (last accessed on August 14, 2017)
47
J A T. C, T S C S D : P S R
J W P S, 216 (2017).
48
Division for Ocean Affairs and the Law of the Sea, Commission on the Limits of the Continental Shelf
(CLCS) Purpose, functions and sessions, United Nations,
<http://www.un.org/depts/los/clcs_new/commission_purpose.htm> (last accessed on August 13, 2017).
49
United Nations, Commission on the Limits of the Continental Shelf, Submissions to the Commission:
Submission by the People's Republic of China,
<http://www.un.org/depts/los/clcs_new/submissions_files/submission_chn_63_2012.htm> (last accessed
August 13, 2017).
50
J A T. C, T S C S D : P S R
J W P S, 30(2017).
China claims all the fishery, gas, oil and mineral resources located in that great area, which is
rightfully and legally for the Philippines use, authority and regulation.51

However, the CLCS is bounded by the Award of the Arbitral Tribunal.52 The Arbitral
Tribunal has ruled in favor of the Philippines since the nine-dashed claim has no legal basis:
[T]he Tribunal concludes that, as between the Philippines and China,
Chinas 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 Chinas maritime
entitlements under the Convention.53

Second, China can claim that the Philippine ECS overlaps with Chinas ECS. 54 This is a
clear indication that China knows and accepts that the Philippines has an EEZ from Luzon.

The Philippines claim to the ECS, if not opposed by China, will be recommended for
adoption from the CLCS. Since no state opposed, the CLCS can adopt the Philippines ECS
claim, similar to its claim in Philippine Rise,55 formerly called Benham Rise.56

In 2009, the Philippines filed a claim for the territory of Benham Rise before the CLCS.
Then on April 12, 2012, the CLCS approved the claim and confirm[ed] the landmass as part of
the Philippines continental shelf[.]57 Similarly, if China, or any other state for that matter,
does not oppose the Philippines claim to its ECS from Luzon, then the CLCS will recommend
the adoption of the said ECS. With this, the Philippines can legally exercise sovereign rights
and jurisdiction to exploit, explore, conserve and manage the natural resources.58

51
Id.
52
J A T. C, T S C S D : P S R
J W P S, 216(2017).
53
The South China Sea Arbitration (Philippines v. China), Case no. 2013-19, Award, 278 at 117
(Permanent Court of Arbitration 2016).
54
J A T. C, T S C S D : P S R
J W P S, 216 (2017).
55
Patricia Lourdes Viray, Carpio: Philippines Can Extend Continental Shelf Claim in Luzon, T
P D I, July 13, 2017,
<http://www.philstar.com/headlines/2017/07/13/1719211/carpio-philippines-can-extend-continental-shelf-
claim-luzon> (last accessed August 13, 2017).
56
Exec. Order No. 25 (2017).
57
Marielle Medina, Timeline, T P D I, Mar 19, 2017,
<https://www.pressreader.com/philippines/philippine-daily-inquirer/20170319/281818578647273> (last
accessed August 13, 2017).
58
Christine Avendano, Duterte renames Benham Rise Philippine Rise, May 23, 2017,
<http://newsinfo.inquirer.net/898607/duterte-renames-benham-rise-philippine-rise> (last accessed
August 13, 2017).