South China Sea Ruling: July 12, 2016
Sign in or join
Add a note by highlighting text or Replying to an existing note.
Add a note by highlighting text or Replying to an existing note.
In this Section, the Tribunal addresses the Parties' dispute concerning the activities of Chinese officials and Chinese vessels with respect to living and non-living resources in the areas of the South China Sea located within the Philippines' exclusive economic zone and continental shelf. This dispute is reflected in the Philippines' Submission No. 8, which requests the Tribunal to declare that:
(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;
Documents adduced by the Philippines record several incidents since 2010 in which China has acted to prevent the Philippines from exploiting the non-living and living resources in the waters that lie within 200 nautical miles of the Philippines' baselines. The following is an overview of these incidents.
China has objected to or acted to prevent petroleum exploration by the Philippines in the South China Sea, within 200 nautical miles of the Philippines' baselines, on several occasions.
In June 2002, the Philippines awarded Sterling Energy Plc ('Sterling Energy') a licence to explore oil and gas deposits within the GSEC101 block, located at Reed Bank.673The location of the GSEC101 block is depicted in Map 4 on page 269 below.
In April 2005, Forum Energy Plc, a UK-based oil and gas exploration and production company ('Forum Energy'), acquired the concession from Sterling Energy and became its operator.674On 15 February 2010, the Philippines converted the licence into a Service Contract ('SC72').675
Merits Hearing Tr. (Day 2), pp. 140-141.
Forum Energy plc, 'SC72 Recto Bank (Formerly GSEC101)' (Annex 342).
On 22 February 2010, China delivered to the Philippines a Note Verbale, expressing 'its strong objection and indignation' about the award of the Service Contract. China went on to state as follows:
China has indisputable sovereignty, sovereign rights and jurisdiction over Nansha Islands and its adjacent waters. The so-called 'GSEC101' is situated in the waters of China's Nansha Islands. The aforementioned act of the Philippine side has seriously infringed upon China's sovereignty and sovereign rights and goes contrary to its commitments on the South China Sea issue and to the maintenance of peace and stability in the South China Sea. It is illegal, null and void.676
On 13 May 2010, China reiterated its objections in a further Note Verbale.677
On 1 March 2011, M/V Veritas Voyager, a Singaporean flagged seismic survey vessel, was engaged in conducting surveys for Forum Energy at Reed Bank, within the GSEC101 area, when it was approached by two China Marine Surveillance ('CMS') vessels (Zhongguo 71 and Zhongguo 75). As recorded by the Philippine Navy, the following events were reported by M/V Veritas Voyager:
O/a 01 0549H March 2011, seven (7) Chinese fishing vessels and two (2) Marine surveillance vessels entered the survey area. These vessels came closer to the survey and chase vessels to have a look at the ongoing survey operations then headed away southward. One of the Veritas Voyager crew who knows how to speak Mandarin communicated with the marine surveillance vessels and was informed that they were on a routine surveillance patrol, and asked who they were and what they were doing.
O/a 01 0509H March 2011, the two (2) marine surveillance vessels followed the Veritas Voyager for an hour staying in the position at approximately two (2) Nautical Miles off its starboard beam. The two (2) vessels then increased speed and headed off southwest. The mandarin speaking crew onboard MV Veritas Voyager was able to communicate to the surveillance vessel on the details of their towed spread.
O/a 02 0942H March 2011, the two (2) (Chinese) surveillance vessels approached MV Veritas Voyager again and informed them that they are operating in the territorial waters of China under the UN charter. The Party Manager replied that the Veritas Voyager was operating in the territory of the Philippines with all the required permits. The Marine surveillance vessels then ordered the Veritas Voyager to stop the production and leave the area. After consultation with CGGV senior management, the Party Manager, informed the Chinese Surveillance vessels that they would stop production and proceed to the recovery area.
O/a 021018H March 2011, MV Veritas Voyager reported that they terminated the operation as of 0936H due to the two Chinese Surveillance vessels that have been tracking them and insisting that they should stop the survey. The Mandarin speaking navigator onboard the Voyager explained what they were working for
Forum Energy plc, 'SC72 Recto Bank (Formerly GSEC101)' (Annex 342).
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (10) PG-047 (22 February 2010) (Annex 195).
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (10) PG-137 (13 May 2010) (Annex 196).
Forum Energy on a permitted survey area. However, the Chinese surveillance vessels demanded them to stop immediately and leave the area, stating that according to UN treaty, MV Veritas Voyager is operating in waters belonging to the People's Republic of China. Hence the crew of MV Veritas Voyager told them that they would stop the acquisition. In addition, the Chinese vessels have made aggressive actions against the MV Veritas Voyager by steering at a direct course (Head on) and turning away at the last minute.678
On 2 March 2011, the Philippines delivered to China a Note Verbale objecting to the incident in the following terms:
At 9:36 a.m. today, 2 March 2011, two Chinese surveillance vessels 'Zhongguo 71 and 75' threatened a Philippine-authorized seismic survey vessel operating in Philippine waters around Reed Bank, and demanded that it stop its activities and immediately leave the area.
The area where the incident took place has the following coordinates:
|
Corner |
LAT |
LONG |
|
l0''40'00'N |
116''30'00'E |
|
|
l0''40'00'N |
116''50'00'E |
|
|
l0''20'00'N |
116''50'00'E |
|
|
l0''20'00'N |
116''30'00'E |
The Philippine Government views the aggressive actions of the Chinese vessels as a serious violation of Philippine sovereignty and maritime jurisdiction.679
On 9 March 2011, the Charg'' d'Affaires of the Chinese Embassy called on the acting Assistant Secretary of Asia and Pacific Affairs of the Philippines. As recorded by the Philippines, the principal points conveyed by China in the conversation were as follows:
China has indisputable sovereignty over the waters of Nansha Islands where Reed Bank is situated
Since 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).
On 2 March, Chinese maritime surveillance vessels were in the area. The vessels dissuaded the Forum vessel from further work. This was an action that China had to take to safeguard its sovereignty and sovereign rights as a result of the unilateral action from the Philippine side.
[The Philippines] unilateral action in the area is contrary to its commitment to China. [The Philippines] has not given an official reply to Chinese representations on the matter
China has made repeated representations with the Philippines on the GSEC 101 issue since 2002. In 2007, 2009 and February 2010, former Foreign Affairs Secretary Romulo conveyed to China that [the Philippine]Government will not grant to Forum Energy the conversion of the GSEC 101 into a service contract. Secretary Romulo said that GSEC 101 will not be an issue in [Philippines]-China relations.
Memorandum from Colonel, Philippine Navy, to Flag Officer in Command, Philippine Navy (March 2011) (Annex 69).
Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of the People's Republic of China in Manila, No. 110526 (2 March 2011) (Annex 198).
However, PH went against its commitment and converted GSEC 101 into a service contract in February 2010. China made repeated representations for the cancellation of the contract, but [the Philippines]declined to reply officially to Chinese representations. Forum is now pursuing activities in the area.
In consideration of overall bilateral relations, China has exercised restraint and sincerity on the issue
Looking at the issue from the context of maintaining the overall good relations between [the Philippines]and China, and maintaining peace and stability in the area, China has exercised maximum self-restraint and sincerity on the issue.
Its vessels left the area in order to avoid escalating the issue. This demonstrates China's goodwill and sincerity in wanting to maintain good relations with [the Philippines].
China is willing to have cooperation with [the Philippines] following the principle of 'setting aside disputes and pursuing joint development'
China expressed willingness to have cooperation in the area by following the principle of 'shelving disputes and pursuing joint development' as a prerequisite for cooperation.
Is it [the Philippines'] intention to escalate tensions by undertaking high profile unilateral actions?
Since February 2010, [the Philippines] has not replied officially to Chinese representations on the matter but proceeded to undertake unilateral action by sending the seismic survey ship to conduct activities. It even sent military and coast guard vessels to the area. China is perplexed and disappointed with Philippine actions. Does the Philippines want to escalate the issue?
[The Philippines] is not handling the issue in a low profile manner. To avoid creating bigger pressures on the options of both governments, [the Philippines] should properly guide media reporting on the 2 March 2011 incident in a positive way
Contrary to [Philippine Department of Foreign Affairs] commitment to handle the GSEC
101 issue in a low profile manner, Wescom Commander General Sabban gave strongly-worded statements to the media. An unidentified [Philippine Department of Foreign Affairs] official also divulged the CDA's meeting with Undersecretary Basilio to the media. These reports have hugged headlines and aroused the attention of both peoples.
Such action is not conducive to the resolution of the issue in a low profile manner and has created bigger pressures from the media on the solutions of both Governments to the problem. It has created unnecessary impediments for both sides to find a way out of the issue. If not handled well, the issue will further escalate and may bring unpleasant results for both sides, which is dangerous.
China requests that [the Philippines]actively guide media reporting in a positive way so that the issue will not be played up.
The [South China Sea] issue is the only outstanding issue in [Philippines]China relations. Both countries should look at the issue from a higher and broader Vantage point
The [South China Sea] issue is the only outstanding issue between [the Philippines] and China. It is a difficult issue that could undermine bilateral relations. In handling the issue,
both countries should proceed from the overall pursuit of maintaining close and cooperative relations, and maintaining peace and stability in the area.680
From 22 to 24 March 2011, the Secretary-General of the Philippines' Commission on Maritime and Ocean Affairs Secretariat, visited Beijing for consultations with the Director-General of the Ocean and Boundary Affairs Department of the Chinese Ministry of Foreign Affairs. As recorded by the Philippines, the following views were expressed concerning the Reed Bank incident:
2. On the Reed Bank/GSEC 101 Issue
China stated that it has sovereignty over the so-called 'Nansha Islands.' According to them, 'Nansha' is a 'comprehensive whole' that includes the Reed Bank. China is concerned with the survey and exploration that are reportedly being undertaken by [the Philippines] in the GSEC 101 area. China cannot and will never accept this. China has always approached the issue from a broader perspective and adopted an attitude of restraint. This however should not be misinterpreted by other countries as a reason to undertake unilateral action on the area. If this happens, China will have reason to do exploration as well on areas it deems as its own. Joint development is the best and most practical way to approach the issue pending the resolution of the disputes. China is open to any [Philippine] proposal on this matter.
[The Philippines] expressed the view that while its relations with China is an important component of [Philippine] foreign policy, the same should be founded on mutual respect for each other's sovereignty and dignity. In this context, [the Philippines] stated the following points:
[The Philippines] exercises sovereignty and jurisdiction over the Kalayaan Island Group (KIG).
Even while [the Philippines] exercises sovereignty and jurisdiction over the KIG, nonetheless; the Reed Bank'where GSEC 101/SC 72 is situated'is not part of the 'adjacent waters' of the Spratlys (Nansha) islands, using UNCLOS as a standard.
Reed bank is neither an island nor a rock nor a low tide elevation. It is completely submerged under water and a continental shelf by definition. Indeed, it is part of the continental shelf of Palawan.
[The Philippines], in the context of friendly relations with China, is open to Chinese investment in the Reed Bank under [Philippine] laws.
However, with respect to the disputed features (e.g., islands, islets) in the Spratlys, [the Philippines] is open to exploring possible modalities or mechanisms for managing disputes in the said area including ideas on joint cooperation.681
On 4 April 2011, the Philippines responded formally to China's Notes Verbales of February and May 2010, stating as follows:
Memorandum from the Acting Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs (10 March 2011) (Annex 70) (emphasis removed from original).
Memorandum from the Secretary General, Commission on Maritime and Ocean Affairs Secretariat, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs of the Republic of the Philippines (28 March 2011) (Annex 71) (emphasis removed from original).
FIRST, the Republic of the Philippines has sovereignty and jurisdiction over the Kalayaan Island Group (KIG);
SECOND, even while the Republic of the Philippines has sovereignty and jurisdiction over the KIG, the Reed Bank where GSEC 101 is situated does not form part of the 'adjacent waters,' specifically the 12 M territorial waters of any relevant geological feature in the KIG either under customary international law or the United Nations Convention on the Law of the Sea (UNCLOS);
THIRD, Reed Bank is not an island, a rock, or a low tide elevation. Rather, Reed Bank is a completely submerged bank that is part of the continental margin of Palawan. Accordingly, Reed Bank, which is about 85 M from the nearest coast of Palawan and about 595 M from the coast of Hainan, forms part of the 200 M continental shelf of the Philippine archipelago under UNCLOS;
FOURTH, Articles 56 and 77 of UNCLOS provides that the coastal or archipelagic State exercises sovereign rights over its 200 M Exclusive Economic Zone and 200 M Continental Shelf. As such, the Philippines exercises exclusive sovereign rights over the Reed Bank.
Therefore, the action of the Philippine Department of Energy is fully consistent with international law. It does not impinge on the sovereignty of the People's Republic of China, or violate the ASEAN-China Declaration of Conduct on the South China Sea (DOC). 682
On 12 January 2006, the Philippine Department of Energy issued Service Contract 58 to PNOC Exploration Corporation ('PNOC') in respect of the West Calamian block adjacent to Palawan.683The location of SC58 is depicted in Map 4 on page 269 below. PNOC was joined by Nido Petroleum Ltd. ('Nido') as operator of the block.684
On 24 March 2010, Nido announced that it would commence multi beam and sea bed coring in SC58.685
On 30 July 2010, the Deputy Chief of Mission of the Chinese Embassy called on the Secretary-General of the Philippines' Commission on Maritime and Ocean Affairs Secretariat. As recorded by the Philippines, China made the following representations:
Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 110885 (4 April 2011) (Annex 199).
Department of Energy of the Republic of the Philippines and PNOC Exploration Corporation, West Calamian Block Service Contract No. 58 (12 January 2006) (Annex 335).
See PNOC Exploration Corporation available at <pnoc-ec.com.ph/service-contract-no-58-west- calamian/>.
Letter from Country Representative, Nido Petroleum, to the Office of the Undersecretary, Department of Energy of the Republic of Philippines (7 October 2013) (Annex 340).
Nido Petroleum Ltd. and Service Contract 54
Chinese authorities have received reports that Australian company Nido Petroleum Ltd. is planning to sell crude oil that it extracted from the Tindalo oil well, which is covered by Service Contract 54a. It plans to start selling the oil this August 2010.
Mr. Bai Tian [the Deputy Chief of Mission of the Chinese Embassy] further asserted that Service Contract 54, 14, 58, 63, and other nearby service contracts are located 'deep within China's 9-dash line.' China considers the Philippines as violating and encroaching on China's sovereignty and sovereign rights in these areas.
China is requesting for detailed information on these service contracts.
China considers this as a very serious matter and that it reserves the right to unilaterally act on this matter to protect their interests.
China will send the Philippines a Note Verbale on this issue.686
On 6 August 2010, the First Secretary of the Chinese Embassy, Mr. Yongsheng Li, met with Nido's Vice-President, Mr. Leonardo M. Ote. As later memorialised by Nido:
During the meeting, Mr. Yongsheng showed Mr. Ote a copy of China's 9-dash-line map and informed the latter that all areas within that map are being claimed by PRC, including those areas covered by Nido's existing service contracts with the Philippine Government. Mr. Ote informed Mr. Yongsheng that Nido is a service contractor which derives its licenses and permits from the [Philippine Department of Energy]. Mr. Ote suggested that Mr. Yongsheng discuss any claims with the [Philippine Department of Energy]. Nido has not heard from Mr. Yongsheng since then.687
In September 2011, according to Nido, COSL, a Chinese service contractor, wrote to Nido's Operations Manager for SC 54 'signifying its refusal to conduct any seismic activity in SC54 and SC58 due to PRC's territorial claims in the said areas.'688
On 30 June 2011, the Philippine Department of Energy launched the Fourth Philippine Energy Contracting Round (PECR 4) and offered 15 petroleum blocks for exploration and development by companies, including two blocks in the South China Sea to the north-west of Palawan ('Area 3' and 'Area 4'), immediately to seaward of SC58.689The locations of Area 3 and Area 4 are depicted in Map 4 on page 269 below.
Memorandum from the Undersecretary for Special and Ocean Concerns, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs of the Republic of the Philippines (30 July 2010) (Annex 63).
Letter from Country Representative, Nido Petroleum, to the Office of the Undersecretary, Department of Energy of the Republic of Philippines (7 October 2013) (Annex 340).
Letter from Country Representative, Nido Petroleum, to the Office of the Undersecretary, Department of Energy of the Republic of Philippines (7 October 2013) (Annex 340).
Deloitte LLP, 'Fourth Philippine Energy Contracting Round (PECR 4) 2011' (2011) (Annex 336).
On 6 July 2011, China delivered to the Philippines a Note Verbale, objecting to the tender in the following terms:
On 30 June 2011, 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.
China has indisputable sovereignty, sovereign rights, and jurisdiction over the islands in South China Sea including Nansha Islands and its adjacent waters. The action of the Philippine Government has seriously infringed on China's sovereignty and sovereign rights, violated the Declaration on the Conduct of Parties in the South China Sea (DOC), cannot but complicate the disputes and affect stability in the South China Sea.
The Chinese side urges the Philippine side to immediately withdraw the bidding offer for AREA 3 and AREA 4, refrain from any action that infringes on China's sovereignty and sovereign rights and violates the DOC, and honor its commitment to peace and stability in this region.690
China has also acted to assert its jurisdiction over fisheries in the South China Sea and to restrict fishing by Philippine nationals in areas within 200 nautical miles of the Philippines' baselines.
Beginning in 1995, China undertook the construction of certain elevated structures on the reef platform at Mischief Reef. According to the Philippines, '[i]n relation to Mischief Reef, China has acted to prevent Filipino fishermen from fishing there ever since it took physical control of the reef in 1995.'691
In August 1995, representatives of the Philippines and China held 'Bilateral Consultations on the South China Sea Issue,' addressing among other issues Mischief Reef. The Agreed Minutes of those consultations record the Philippine representatives' declaration that 'previous to the Chinese occupation of Mischief Reef, Filipino fishermen had been freely using the Mischief Reef as shelter.'692
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (11) PG-202 (6 July 2011) (Annex 202).
Merits Hearing Tr. (Day 2), p. 156.
Government of the Republic of the Philippines and Government of the People's Republic of China, Agreed Minutes on the First Philippines-China Bilateral Consultations on the South China Sea Issue (10 August 1995) (Annex 180).
23. As noted in connection with the Tribunal's consideration of China's claim to historic rights, on 10 May 2012, the Fishery Bureau of Nanhai District under the Chinese Ministry of Agriculture announced a fishing moratorium in the South China Sea. The announcement provided, in relevant part, 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.
During the fishing moratorium, all fishing boats subject to the prohibition shall be moored at harbor with their nets folded without exception. No unit may supply oil or ice to, or purchase, distribute, freeze or store fish from the fishing boats subject to the fishing moratorium.
During the fishing moratorium, any fishing boat that holds Nansha Special Fishing Permits and goes to conduct fishing production in the sea areas of Nansha Islands south of 12'' north latitude must strictly follow the reporting system in its entry and exit of sea ports, and any production activities in the sea area prohibited under the fishing moratorium.
Those who violate the fishing moratorium regulations by carrying out fishing activities shall have their fishing catch and any illegal gains derived therefrom confiscated and a fine of up to 50,000 yuan shall be imposed; if the circumstances are serious, their fishing equipment shall be confiscated and their fishing permit shall be revoked; if the circumstances are especially serious their fishing boat may be confiscated; if it constitutes a crime, their criminal responsibility shall be investigated according to law.
The fishing ban was also announced by Xinhua, the official press agency of China, which stated that the ban applied 'in most parts of the South China Sea as part of ongoing efforts to rehabilitate the area's marine resources . . . including Huangyan Island [Scarborough Shoal] but excluding most of the Nansha Islands.'694The Xinhua announcement further reported that '[t]he fishing ban is also applicable to foreign ships. A spokesman from the fishery bureau under the [Ministry of Agriculture] said earlier this week that fishing activity conducted by foreign ships in banned areas will be seen as a 'blatant encroachment on China's fishery resources.''695
People's Republic of China, Ministry of Agriculture, South China Sea Fishery Bureau, Announcement on the 2012 Summer Ban on Marine Fishing in the South China Sea Maritime Space (10 May 2012) (Annex 118).
'Fishing ban starts in South China Sea,' Xinhua (17 May 2012) (Annex 318).
'Fishing ban starts in South China Sea,' Xinhua (17 May 2012) (Annex 318).
On 14 May 2012, the Philippines issued the following statement: 'Our position is we do not recognize China's fishing ban in as much as portions of the ban encompass our Exclusive Economic Zone (EEZ).'696
On 27 November 2012, the Standing Committee of Hainan Provincial People's Congress revised 'The Hainan Provincial Regulation on the Control of Coastal Border Security' ('the Hainan Regulation').697As an administrative matter, China considers the Spratly and Paracel Islands, as well as Scarborough Shoal to form part of Hainan Province, since 2012 as part of the city of Sansha.698As revised, the Hainan Regulation provides as follows:
Article 2 The Regulation is applicable to the border security control in the sea areas and coastal areas within the jurisdiction of the Hainan Province. If any matter is otherwise regulated by other laws or administrative regulations, such laws or administrative regulations shall apply to the matter.
. . .
Article 31 When entering the sea areas within the jurisdiction of the Hainan Province, all foreign ships and the people on the foreign ships shall obey the laws and regulations of the People's Republic of China, and shall not have the following actions that breach the control of coastal border security:
Illegally stop or anchor when passing the sea areas under the jurisdiction of the Hainan Province, or take provocative acts;
Enter or exit the border without inspection and approval, or change the entry or exit ports without approval;
Illegally board any of the islands and reefs within the jurisdiction of the Hainan Province;
Damage marine defense facilities or production and living facilities on the islands and reefs within the jurisdiction of the Hainan Province;
Engage in propaganda activities that violate national sovereignty or endanger national security; or
Conduct any other actions that breach the control of coastal border security as specified by other laws or regulations.
. . .
Article 47 If a foreign ship and the people on the foreign ship have one of the following circumstances as specified in Article 31, the authorities of the public security border can legally take such measures as boarding the ship, conducting inspection, detention,
Philippine Statement on the Inclusion of Bajo de Masinloc and the Philippine Exclusive Economic Zone in China's Fishing Ban (14 May 2012), available at <www.gov.ph/2012/05/14/philippine-statement-on- the-inclusion-of-bajo-de-masinloc-and-the-philippine-exclusive-economic-zone-in-chinas-fishing-ban- may-14-2012/>.
People's Republic of China, Hainan Province, Hainan Provincial Regulation on the Control of Coastal Border Security (31 December 2012) (Annex 123).
'China establishes Sansha City,' Xinhua, 24 July 2012, available at <en.hainan.gov.cn/englishgov/News/ 201208/t20120801_734629.html>.
deportation, or ordering to stop sailing, change the route or return the voyage. The involved ship or the auxiliary navigation equipment in the ship may be seized. Prosecution shall be conducted in accordance with relevant laws and regulations such as the Law of the People's Republic of China on the Penalties for Public Security Administration and the Law of the People's Republic of China on the Control of Exit and Entry of the Border.699
In November 2012, the Philippines delivered a Note Verbale to the Chinese Embassy in Manila, seeking clarification of the content the Hainan Regulation:
The Philippines seeks clarification on the reported law and that foreign vessels illegally entering the waters under the jurisdiction of Hainan Province can be boarded, inspected, detained, confiscated, immobilized, and expelled, among other punitive actions.700
On 31 December 2012, an official spokesperson of China's Foreign Ministry stated that the Regulation would only be enforced within 12 nautical miles of Hainan's coast.701
In January 2013, the Philippines reiterated its request for clarification:
The Philippines seeks clarification anew on the scope of Hainan's rules that there is no change from regulations passed in 1999 limiting enforcement to within 12 nautical miles of Hainan's coast, based on the recent pronouncements of Chinese Foreign Ministry Spokesperson Hua Chunying.
The Philippines further seeks confirmation that the 12 nautical miles enforcement law is absolutely limited to the island of Hainan only.702
According to the Philippines, China has never formally clarified the intended scope of application of the Hainan Regulation.703
According to the Philippines, 'after China took de facto control of Second Thomas Shoal in May 2013, it began interfering with Philippine fishing activities in the area.'704
According to the Director of the Bureau of Fisheries and Aquatic Resources of the Philippines, the conduct of and laws enacted by the Chinese Government 'have created a deep sense of fear
People's Republic of China, Hainan Province, Hainan Provincial Regulation on the Control of Coastal Border Security (31 December 2012) (Annex 123).
Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of the People's Republic of China in Manila, No. 12-3391 (30 November 2012) (Annex 215).
'China says 'board and search' sea rules limited to Hainan coast,' Reuters (31 December 2012) available at <in.reuters.com/article/china-seas-idINL4N0A51QH20121231>.
Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of the People's Republic of China in Manila, No. 13-0011 (2 January 2013) (Annex 216).
Memorial, para. 6.34.
Memorial, para. 6.36.
among Filipino fishermen that has significantly curtailed their fishing activities and severely impacted their ability to earn a livelihood.'705
According to the Philippines, 'the only limitation on the Philippines' entitlement to an EEZ and continental shelf is to the extent that any nearby maritime features claimed by China might generate overlapping entitlements.' 706The Philippines submits that there are no maritime features in the South China Sea claimed by China that can generate entitlements to an exclusive economic zone in the areas relevant to its Submission No. 8.707For the Philippines, 'all of the incidents . . . fall within areas that are indisputably Philippines' EEZ and continental shelf,'708and no issue of maritime delimitation is implicated.
The Philippines likewise submits that Article 297(3) of the Convention poses no bar to its claims because that Article (concerning jurisdiction over the living resources of the exclusive economic zone) does not restrict compulsory dispute settlement over disputes relating to the exclusive economic zone of the State making the claim. According to the Philippines, 'Article 297(3)(a) does not impair the Tribunal's jurisdiction over this Submission in the first instance because China is not 'the coastal State' in those areas.'709The Philippines also argues that Article 297(3) poses no bar to its claims regarding petroleum activities because '[b]y its terms, the exception applies only to disputes relating to a coastal State's sovereign rights with respect to 'the living resources' in the EEZ. Non-living resources are not covered.' 710Finally, the Philippines submits that the Tribunal's jurisdiction is not barred by the exception in Article 298(1)(b) for law enforcement activities for the same reason that the exception for living resources is not applicable: 'In those areas, the Philippines'not China'enjoys the sovereign rights that UNCLOS accords. Submission No. 8 therefore does not implicate China's exercise
Affidavit of A.G. Perez, Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (26 March 2014) (Annex 241).
Merits Hearing Tr. (Day 2), p. 133.
Merits Hearing Tr. (Day 2), pp. 96, 130-131.
Merits Hearing Tr. (Day 2), p. 162.
Supplemental Written Submission, para. 5.4.
Supplemental Written Submission, para. 5.6.
of its sovereign rights as 'the coastal State', as Articles 297(3)(a) and 298(1)(b) would require.'711
The Philippines submits that 'the waters, seabed and subsoil of the South China Sea within 200 M of the Philippine coast, but beyond 12 M from any high-tide feature within the South China Sea, constitute the EEZ and continental shelf of the Philippines' under Articles 57 and 76 of the Convention because none of the maritime features claimed by China 'generates entitlement to an EEZ or continental shelf.'712
According to the Philippines, '[b]ecause the sovereign rights and jurisdiction of the coastal State in both the continental shelf and EEZ are exclusive, no other State may interfere with their use or enjoyment.'713The Philippines submits that 'China's interference with oil and gas exploration and exploitation, and the measures adopted to prevent fishing in the Philippines' EEZ and continental shelf, constitute . . . continuing violations of . . . Articles 56, 58, 61, 62, 73, 77 and 81' of the Convention.714
The Philippines argues that China's assertiveness in 'its claim to 'historic rights' over all the waters, seabed, and subsoil within the so-called 'nine-dash line'' has interfered with the Philippines' enjoyment and exercise of its sovereign rights and jurisdiction under the Convention. 715The Philippines submits that the following actions by China constitute violations of the Philippines' sovereign rights and jurisdiction:
The Philippines further argues that China has interfered with the Philippines' sovereign rights and jurisdiction to exploit the living resources of its maritime zones by enacting and enforcing 'laws and regulations that purport to extend China's law enforcement jurisdiction, including over fishing resources, throughout the entire area encompassed by the nine-dash line.' 717According to the Philippines, this has created 'a cloud of uncertainty which has had a substantial chilling effect on the activities of Philippine fishermen' as well as 'an environment of insecurity . . . among all coastal States in the South China Sea.'718The Philippines objects specifically to:
China has not directly stated its position with respect to the allegations presented in the Philippines' Submission No. 8. Nevertheless, China's position can be discerned from its public statements at the time of the incidents in question.
Memorial, para. 6.29; Merits Hearing Tr. (Day 2), pp. 150, 155-156.
Memorial, paras. 6.29, 6.35; Merits Hearing Tr. (Day 2), pp. 154, 156, 158.
With respect to the Philippines' petroleum exploration, it is apparent that China considers that it'and not the Philippines'has rights in the areas in question:
Regarding the GSEC101 contract at Reed Bank, China stated that 'China has indisputable sovereignty, sovereign rights and jurisdiction over Nansha Islands and its adjacent waters. The so-called 'GSEC101' is situated in the waters of China's Nansha Islands.'719
Regarding the SC58 contract, China is recorded as having stated that 'Service Contract 54, 14, 58, 63, and other nearby service contracts are located 'deep within China's 9-dash line.' China considers the Philippines as violating and encroaching on China's sovereignty and sovereign rights in these areas.'720
And, regarding the Area 3 and Area 4 tender, China stated that 'AREA 3 and AREA 4 are situated in the waters of which China has historic titles including sovereign rights and jurisdiction.'721
China's statements with respect to fisheries likewise make clear that China considers that it has sovereign rights in the areas in question. Thus, China's Ministry of Agriculture is reported to have stated that fishing by foreign vessels in the South China Sea north of 12'' N latitude constitutes 'blatant encroachment on China's fishery resources.'722
In its Award on Jurisdiction, the Tribunal held that Submission No. 8 reflects a dispute concerning 'China's actions that allegedly interfere with the Philippines' petroleum exploration, seismic surveys, and fishing in what the Philippines claims as its exclusive economic zone.'723The Tribunal noted that this is not a dispute concerning sovereignty, nor is it barred from the Tribunal's consideration by any requirement of Section 1 of Part XV.724
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (10) PG-047 (22 February 2010) (Annex 195).
Memorandum from the Undersecretary for Special and Ocean Concerns, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs of the Republic of the Philippines (30 July 2010) (Annex 63).
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (11) PG-202 (6 July 2011) (Annex 202).
'Fishing ban starts in South China Sea,' Xinhua (17 May 2012) (Annex 318).
Award on Jurisdiction, para. 405.
Award on Jurisdiction, para. 405.
The Tribunal also found that the dispute at issue in Submission No. 8 does not concern the delimitation of maritime boundaries. As with Submission No. 5, the Tribunal noted that the premise of Submission No. 8 is 'that no overlapping entitlements exist because only the Philippines possesses an entitlement to an exclusive economic zone in the relevant areas.'725The Tribunal is not asked to delimit overlapping entitlements in the areas in question. Rather, its jurisdiction is contingent on the absence of any possible overlap. Had the Tribunal found that another maritime feature claimed by China within 200 nautical miles of the relevant areas were a fully entitled island for purposes of Article 121 of the Convention and capable of generating an entitlement to an exclusive economic zone and continental shelf, it would necessarily have had to decline jurisdiction over the dispute.
The Tribunal has found, however, (see paragraphs 230 to 278 above) that there is no legal basis for any Chinese historic rights, or other sovereign rights and jurisdiction beyond those provided for in the Convention, in the waters of the South China Sea encompassed by the 'nine-dash line' and that none of the high-tide feature in the Spratly Islands is a fully entitled island for the purposes of Article 121 of the Convention (see paragraphs 473 to 626 above). There is thus no maritime feature in the Spratly Islands that is capable of generating an entitlement to an exclusive economic zone or continental shelf in the areas of Mischief Reef or Second Thomas Shoal, or in the areas of the GSEC101 block, Area 3, Area 4, or the SC58 block.
The Tribunal has also found (see paragraphs 374 to 381 above) that Mischief Reef and Second Thomas Shoal are low-tide elevations and, as such, generate no entitlement to maritime zones of their own. Additionally, Reed Bank (the area of the GSEC101 block) is an entirely submerged reef formation that cannot give rise to maritime entitlements.726Nor is there any high-tide feature claimed by China within 12 nautical miles of Area 3, Area 4, or the SC58 block that could generate an entitlement to a territorial sea in those areas.
From these conclusions, it follows that there exists no legal basis for any entitlement by China to maritime zones in the area of Mischief Reef, Second Thomas Shoal, the GSEC101 block, Area 3, Area 4, or the SC58 block. There is thus no situation of overlapping entitlements that would call for the application of Articles 15, 74, or 83 to delimit the overlap and no possible basis for the application of the exception to jurisdiction in Article 298(1)(a)(i).
Award on Jurisdiction, para. 405.
See, e.g., Chinese Chart 10019 (Annex NC3), Chinese Chart 18050 (Annex NC21); Navigation Guarantee Department of the Chinese Navy Headquarters, China Sailing Directions: South China Sea (A103) (2011) (Annex 232(bis)); United Kingdom Hydrographic Office, Admiralty Sailing Directions: China Sea Pilot (NP31), Vol. 2 (10th ed., 2012) (Annex 235).
Because the areas of the South China Sea at issue for Submission No. 8 can only constitute the exclusive economic zone of the Philippines, the Tribunal also considers that Article 297(3)(a) and the law enforcement exception in Article 298(1)(b) of the Convention pose no obstacle to its jurisdiction. These provisions serve to limit compulsory dispute settlement where a claim is brought against a State's exercise of its sovereign rights in respect of living resources in its own exclusive economic zone. These provisions do not apply where a State is alleged to have violated the Convention in respect of the exclusive economic zone of another State. The Tribunal therefore concludes that it has jurisdiction with respect to the Philippines' Submission No. 8.
In the Tribunal's view, the core of the Parties' dispute with respect to living and non-living resources lies in their differing understandings of their respective rights in the areas of the South China Sea within 200 nautical miles of the Philippines' baselines that are encompassed by the 'nine-dash line'. It is apparent that the Philippines and China have each proceeded on the basis that it, and not the other, has exclusive rights to resources and have acted accordingly.
As discussed above, the effect of China's objection to compulsory dispute settlement for maritime delimitation is that the Tribunal could only address this Submission if the respective maritime entitlements of the Parties could be established and if no overlap requiring delimitation were found to exist. Jurisdiction has been established only because the allocation of rights under the Convention is unequivocal. Thus, the Tribunal has found that Mischief Reef, Second Thomas Shoal, the GSEC101 block, Area 3, Area 4, or the SC58 block all fall within areas where only the Philippines possesses possible entitlements to maritime zones under the Convention. The relevant areas can only constitute the exclusive economic zone and continental shelf of the Philippines. Accordingly, the Philippines'and not China'possesses sovereign rights with respect to resources in these areas.
The Convention is clear on the allocation of rights within the exclusive economic zone and continental shelf. With respect to non-living resources, Article 77 of the Convention provides that the 'coastal State''which in this case is necessarily the Philippines''exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.' The Convention goes on to make clear that '[t]he rights referred to . . . 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.' These provisions are unequivocal and require no further interpretation. Within
its continental shelf, only the Philippines, or another State acting with its permission, may exploit the resources of the sea-bed.
The rights of other States in the waters above the continental shelf and with respect to submarine cables and pipelines are expressly detailed in Articles 78 and 79 of the Convention. Nothing in these Articles permits any State to prevent another State from exercising sovereign rights over its own continental shelf.
The same clarity is evident with respect to living resources and the provisions of the exclusive economic zone. Article 56 is clear in allocating to the coastal State'which again is necessarily the Philippines in the areas in question''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 . . . .' The rights of other States in the exclusive economic zone are detailed in Article 58 and are limited to 'navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.' The rights of other States do not include restricting a coastal State from exploiting the living resources of its own exclusive economic zone. Indeed, the very notion is incompatible with the concept of sovereign rights and the exclusive jurisdiction over fisheries that was the central objective motivating the introduction of the exclusive economic zone concept (see paragraphs 248 to 254 above).
Having established the applicable law and the allocation of rights, the Tribunal now turns to the events underpinning the Philippines' claim.
In the case of non-living resources, the Philippines has identified three distinct types of conduct on the part of China that it considers to violate its sovereign rights to the continental shelf:
diplomatic statements, in the form of China's objections to the Philippines Government regarding the conversion of the GSEC101 contract, the SC58 contract, and the tender for Area 3 and Area 4; (b) a statement by a Chinese official to a representative of Nido Petroleum Ltd. to the effect that the area of Nido Petroleum's concession from the Philippines was claimed by China; and (c) actions by CMS vessels to order the M/V Veritas Voyager to halt operations and leave the area of Reed Bank.
The Tribunal notes that China's diplomatic communications, the statements of its diplomats, and the actions of government-operated ships, such as CMS vessels, are all attributable to China
as such. These actions constitute official acts of China. At the same time, however, the Tribunal reaches different conclusions with respect to the consequences of these actions.
As an initial matter, the Tribunal accepts that China has asserted its claim to rights in the waters within 200 nautical miles of the Philippines baselines in good faith. That the Tribunal disagrees with China's understanding of its rights and considers that there is no possible legal basis for China's claimed rights does not mean that China's understanding has not been genuinely held.
Correspondingly, the Tribunal does not consider that China's diplomatic communications, asserting China's understanding of its rights in the South China Sea pursuant to the Convention and international law, can themselves constitute breaches of the provisions of the Convention regarding the continental shelf. It is an altogether normal occurrence that States will have different understandings of their respective rights. If the expression of such differences were itself sufficient to place the State whose understanding of the law ultimately proved incorrect in breach of the underlying obligation, it would cast an unacceptable chill on the ordinary conduct of diplomacy. The Tribunal does not exclude that it could reach a different conclusion in the case of diplomatic statements claiming rights in bad faith, or in the case of attempts by one State to induce another to relinquish its rights through repeated statements, veiled threats, or diplomatic coercion. That, however, is not the case on the record before the Tribunal. Accordingly, the Tribunal concludes that China's diplomatic statements to the Philippines regarding their respective rights, although incorrect with respect to the law, do not constitute breaches of the Convention.
The Tribunal reaches the same conclusions with respect to the communications of the Chinese Embassy in Manila with Nido Petroleum Company (see paragraph 664 above). Even taking Nido's account of that conversation as fully accurate, the most that can be attributed to the Chinese diplomat in question is the statement that 'all areas within [China's '9-dash line'] map are being claimed by PRC, including those areas covered by Nido's existing service contracts with the Philippine Government.' 727There is no evidence before the Tribunal that the conversation included any efforts to induce Nido to cease operations in the SC58 block, any indication of adverse consequences if Nido declined to do so, or even a request that Nido refrain from further operations. On the evidence before the Tribunal, China's representative merely informed Nido of China's claim. When Nido suggested that China take the matter up with the Philippine Department of Energy, China's representative left and did not return. The Tribunal
Letter from Country Representative, Nido Petroleum, to the Office of the Undersecretary, Department of Energy of the Republic of Philippines (7 October 2013) (Annex 340).
considers that China's actions in merely informing a private party of its claims in the South China Sea do not, without more,728constitute breaches of the Convention.
The Tribunal reaches a different conclusion, however, with respect to China's actions in connection with the survey operations of M/V Veritas Voyager. The Tribunal accepts the Philippine Navy's contemporaneous record of events as accurate and notes that the key passage of that account records as follows:
two (2) (Chinese) surveillance vessels approached MV Veritas Voyager again and informed them that they are operating in the territorial waters of China under the UN charter. The Party Manager replied that the Veritas Voyager was operating in the territory of the Philippines with all the required permits. The Marine surveillance vessels then ordered the Veritas Voyager to stop the production and leave the area. After consultation with CGGV senior management, the Party Manager, informed the Chinese Surveillance vessels that they would stop production and proceed to the recovery area.729
On these facts, the Tribunal does not consider that China's actions were limited to stating its understanding of the Parties' respective rights. Rather, China acted directly to induce M/V Veritas Voyager to cease operations and to depart from an area that constitutes part of the continental shelf of the Philippines. Prior to this, the Tribunal notes, China was unequivocally aware that there existed a difference of views regarding the Parties' respective entitlements in the South China Sea and, in particular, in the area of Reed Bank. On the account of China's own diplomats (as memorialised at the time by the Philippines), 'China has made repeated representations with the Philippines on the GSEC 101 issue since 2002.'730A dispute on this issue was evident, and the approach called for by the Convention was for the Parties to seek to resolve their differences through negotiations or the other modes of dispute resolution identified in Part XV of the Convention and the UN Charter. Instead, China sought to carry out its own understanding of its rights through the actions of its marine surveillance vessels. China having done so, the Tribunal considers that China's actions amount to a breach of Article 77 of the Convention, which accords sovereign rights to the Philippines with respect to its continental shelf in the area of Reed Bank (the area in question).
The Tribunal notes that Nido's account also indicates that, approximately one year later, it was informed by a Chinese subcontractor that the subcontractor would not work in the area of the SC54 and SC58 blocks due to China's territorial claims. This is an action by a private party. There is no evidence before the Tribunal that would suggest that the actions of Nido's subcontractor are attributable to China.
Memorandum from Colonel, Philippine Navy, to Flag Officer in Command, Philippine Navy (March 2011) (Annex 69).
Memorandum from the Acting Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs (10 March 2011) (Annex 70).
In the case of living resources, the Tribunal notes that the Philippines has, again, identified several distinct types of conduct on the part of China that it considers to violate its sovereign rights in the exclusive economic zone. First, the Philippines objects to China's extension of its jurisdiction over fisheries in the South China Sea through the 2012 moratorium on fishing in the area north of 12'' N latitude and through the Hainan Regulation. Second, the Philippines objects to China's prevention of fishing by Philippine vessels at Mischief Reef and Second Thomas Shoal.
With respect to China's assertion of fisheries jurisdiction, the Tribunal asked the Philippines to clarify '[w]hether China has sought to enforce either the May 2012 fishing ban or the Regulations for the Management of Coastal Border Security in Hainan Province against Philippines fishing vessels and the specifics of such enforcement.' 731In response, the Philippines asserted that China had done so.732As evidence of this, the Philippines advanced a Note Verbale from China in which China asserted its right to impose a fishing moratorium in the South China Sea, requested the Philippines to educate its fishermen to comply with the moratorium, and cautioned the Philippines that 'Chinese law-enforcing authorities will strengthen their maritime patrols and other law-enforcing actions, investigate and punish the relevant fishing vessels and fishermen who violate the fishing moratorium in accordance with the law.'733The Philippines also noted that '[s]tatements like that have a deeply chilling effect on Filipino fishermen and their activities.'734
As an initial matter, the Tribunal notes that the Note Verbale invoked by the Philippines dates from 6 July 2015. To the extent that diplomatic correspondence constitutes evidence of enforcement actions taken by China, the Note Verbale would relate, if at all, to the fishing moratorium imposed by China in the summer of 2015. The Philippines did not invoke any other evidence that would establish that the 2012 fishing moratorium was enforced against any Philippine fishing vessel in any area falling in the Philippines' exclusive economic zone, nor has the Tribunal seen any such indication in the record before it. Accordingly, the Tribunal considers that the relevant question is whether China's 2012 promulgation of the fishing
Letter from the Tribunal to the Parties (10 November 2015).
Merits Hearing Tr. (Day 2), p. 155.
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (15) PG-229 (6 July 2015) (Annex 580).
Merits Hearing Tr. (Day 2), p. 156.
moratorium itself, irrespective of whether the moratorium was directly enforced, infringes on the rights of the Philippines and constitutes a breach of the Convention.
On this question, the Tribunal considers that the adoption of legislation or the promulgation of the fishing moratorium as a regulation differs from the mere assertion of China's rights in its diplomatic communications with the Philippines. Examining the scope of application specified in the moratorium itself,735and noting the public reports to the effect that the ban would apply in 'most parts of the South China Sea' and in the 'areas north of the 12th parallel, including Huangyan Island [Scarborough Shoal],'736the Tribunal concludes that the moratorium was intended to apply to areas of the Philippines' exclusive economic zone north of 12'' N latitude and was not limited to Chinese flagged vessels. In contrast to mere statements, the fishing moratorium established a realistic prospect that Filipino fisherman, seeking to exploit the resources of the Philippines' exclusive economic zone, could be exposed to the punitive measures spelled out in the moratorium, including the possible confiscation of the fishing vessel in question. The Tribunal considers that such developments may have a deterring effect on Filipino fishermen and their activities. In effect, the 2012 fishing moratorium constituted an assertion by China of jurisdiction in areas in which jurisdiction over fisheries is reserved to the Philippines through the operation of the provisions of the Convention concerning the exclusive economic zone. The Tribunal considers that such an assertion of jurisdiction amounts to a breach of Article 56 of the Convention, which accords sovereign rights to the Philippines with respect to the living resources of its exclusive economic zone.
The Tribunal reaches a different conclusion with respect to the Hainan Regulation. As an initial matter, the Tribunal sees no provision on the face of the Hainan Regulation that would restrict the rights of the Philippines over the resources of its exclusive economic zone. Moreover, the Tribunal notes that China has publicly stated that the regulation applies only within 12 nautical miles of Hainan.737The Tribunal does not consider that the Hainan Regulation infringes on the rights of the Philippines or amounts to a breach of the provisions of the Convention concerning the exclusive economic zone.
Finally, with respect to China's alleged prevention of Philippine vessels from fishing at Mischief Reef and Second Thomas Shoal, the Tribunal notes that there is a distinct lack of
People's Republic of China, Ministry of Agriculture, South China Sea Fishery Bureau, Announcement on the 2012 Summer Ban on Marine Fishing in the South China Sea Maritime Space (10 May 2012) (Annex 118).
See 'Fishing ban starts in South China Sea,' Xinhua (17 May 2012) (Annex 318).
'China says 'board and search' sea rules limited to Hainan coast,' Reuters (31 December 2012), available at <in.reuters.com/article/china-seas-idINL4N0A51QH20121231>.
evidence on this question in the record before it. Prior to the hearing, the Tribunal invited the Philippines to clarify 'the specifics of the actions taken by China' to prevent fishing by Philippines vessels at Mischief Reef and Second Thomas Shoal.738The Philippines has stated with respect to Mischief Reef that 'China has acted to prevent Filipino fishermen from fishing there ever since it took physical control of the reef in 1995.'739The Philippines said China's actions to restrict Filipino fishing at Second Thomas Shoal 'have also primarily taken place within 12 miles of Second Thomas Shoal ever since China took de facto control of that feature in May 2013.'740The Philippines further stated that 'Chinese marine surveillance vessels, navy warships and fishing administration vessels have surrounded the shoal. They have blocked Philippine vessels, including civilian vessels, from approaching Second Thomas Shoal.' 741With respect to evidence of these assertions, however, the Tribunal has reviewed the record identified by the Philippines and is not able to identify a single documented instance in which Chinese Government vessels acted to prevent Filipino fishermen from fishing at either Second Thomas Shoal or Mischief Reef.
The Tribunal hastens to emphasise that the absence of evidence on this point in the record before it does not mean that such events did not occur or that China's actions may not otherwise have dissuaded Filipino fishermen from approaching Second Thomas Shoal and Mischief Reef. The Tribunal can readily imagine that the presence of Chinese law enforcement vessels at both locations, combined with China's general claim to fisheries jurisdiction in the South China Sea, could well lead Filipino fishermen to avoid such areas. The Tribunal is not, however, prepared to find a violation of the Convention on this basis. The Tribunal considers that the Philippines has not established that China has prevented Filipino fishermen from fishing at Mischief Reef or Second Thomas Shoal and that, in this respect, the provisions of the Convention concerning fisheries are not implicated.
Letter from the Tribunal to the Parties, 10 November 2015.
Merits Hearing Tr. (Day 2), p. 156.
Merits Hearing Tr. (Day 2), p. 158.
Merits Hearing Tr. (Day 2), p. 158.
Based on the considerations outlined above, the Tribunal finds that China has, through the operation of its marine surveillance vessels with respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article 77 of the Convention with respect to the Philippines' sovereign rights over the non-living resources of its continental shelf in the area of Reed Bank. The Tribunal further finds that China has, by promulgating its 2012 moratorium on fishing in the South China Sea, without exception for areas of the South China Sea falling within the exclusive economic zone of the Philippines and without limiting the moratorium to Chinese flagged vessels, breached Article 56 of the Convention with respect to the Philippines' sovereign rights over the living resources of its exclusive economic zone.
* * *
In this Section, the Tribunal addresses the Parties' dispute concerning China's toleration of fishing by Chinese vessels in the areas of the South China Sea located within the Philippines' exclusive economic zone. This dispute is reflected in Submission No. 9 of the Philippines, which requests the Tribunal to declare that:
The Philippines' allegations in respect of this Submission concern developments at Mischief Reef and Second Thomas Shoal, both of which are low-tide elevations lying within 200 nautical miles of the Philippines' baselines.
Since 3 May 2013, China has maintained a significant presence of naval and CMS vessels near Second Thomas Shoal. As reported by the Armed Forces of the Philippines:
Starting 03 May 2013, China maintained the presence of at least two (2) vessels at Ayungin Shoal [Second Thomas Shoal]. Since then, two (2) PLA Navy frigates (BN 562 and 563) and five (5) CMLEA vessels (CMS BN 84, 167, 75, 71 and 8002) have been monitored deployed in the shoal and its outlying areas on a rotation basis.742
These government vessels have been accompanied by a number of fishing vessels. Thus on 4 May 2013, the Philippines' marine detachment maintained on the wreck of the BRP Sierra Madre on Second Thomas Shoal reported the presence of '1 PLA Navy, 2 CMS, and 1 Chinese steel-hulled fishing vessels . . . in the vicinity of Ayungin Shoal.'743On 11 May 2013, the Armed Forces of the Philippines reported the presence of:
PLA Navy Frigate at vicinity 6 [nautical miles] northwest off Ayungin Detachment.
2 CMS vessels at vicinity 7 [nautical miles] southeast off Ayungin Detachment;
1 CMS vessel at vicinity 4 [nautical miles] north off Ayungin Detachment.
1 Hainan-type Fishing Vessel at vicinity 3 [nautical miles] northeast off Ayungin Detachment. and,
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
1 Hainan-type Fishing Vessel at vicinity 3NM south off Ayungin Detachment744
And on 16 May 2013, the Philippines Air Force reported several fishing vessels apparently at work in the vicinity of Second Thomas Shoal:
PAF Nomad-22 MAS sighted JIANGHU V Missile Frigate 562 (DESIG JIANGMEN), CMS 84 and 167 in the vicinity of Ayungin shoal [Second Thomas Shoal], along with a steel-hulled Hainan fishing vessel and a suspected Hainan fishing vessel with three dinghies believed to be gathering corals and clams and dredging in the shoal.
The Philippines' military has likewise reported the presence of Chinese fishing vessels, escorted by Chinese Government ships, at Mischief Reef, where China has maintained a presence since 1995. A Philippines' report from May 2013 notes as follows:
at least 33 Chinese fishing vessels were said to have been fishing at the Chinese-occupied Mischief Reef and nearby features since 08 May 2013, escorted by a PLA Navy ship and CMS vessels
The Philippines submits that the Tribunal has jurisdiction to consider its Submission No. 9, for the same reasons set out with respect to its Submission No. 8 (see paragraphs 681 to 682 above).
On the merits, the Philippines argues that China has violated its obligations under Article 56 of the Convention to respect the sovereign rights and jurisdiction of the Philippines by failing to prevent its nationals and vessels from exploiting the living resources of the Philippines' exclusive economic zone.
The Philippines argues that as China has established de facto control over areas of the South China Sea, it has acted to prevent fishing by Philippine vessels, while tolerating fishing by Chinese nationals and vessels, including in areas that comprise the Philippines' exclusive economic zone. Thus, according to the Philippines, 'since 1995, when China seized and began occupying Mischief Reef, just 126 [nautical miles] off the coast of Palawan, it has prevented Philippines vessels from fishing there. In contrast, Chinese fishing vessels under China's protection have fished freely in the adjacent waters, even though they are part of the Philippines' EEZ.'747Similarly, the Philippines argues, 'after China took de facto control of Second Thomas Shoal in May 2013, it began interfering with Philippine fishing activities in the
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
Memorial, para. 6.36.
area, while allowing fishing by Chinese vessels, notwithstanding that Second Thomas Shoal is part of the Philippines' EEZ.
Pursuant to Article 56 of the Convention, the Philippines argues, 'States have an obligation, acting in good faith, to take the measures necessary to prevent their nationals from exploiting the living resources in the EEZ of another State party.'749In the Philippines' view, the scope of this duty 'extends to such actions as are reasonably necessary to give full effect to the exclusive rights of the coastal State conferred by Article 56.
The Philippines relies in particular on the Fisheries Advisory Opinion of the International Tribunal for the Law of the Sea,751emphasising the portions of that decision that recognise that a State has an obligation to ensure that its nationals and vessels comply with any conditions or regulations imposed by the coastal State when fishing within its exclusive economic zone and to ensure that vessels flying its flag do not engage in illegal, unreported, and unregulated ('IUU') fishing.752The Philippines also adopts the definition of the 'obligation to ensure' set out in the Advisory Opinion, which provides that such an obligation is an obligation 'to deploy adequate means, to exercise best possible efforts, to do the utmost.
Applying this standard to the activities of Chinese fishermen, the Philippines submits that:
Instead of adopting measures to prevent fishing, Chinese authorities have actively encouraged illegal and unregulated fishing by Chinese vessels in the Philippines' EEZ. In circumstances in which China has explicitly authorised its own vessels to engage in fishing activities in the EEZ of the Philippines, it simply cannot be said that China has 'deployed adequate means' to prevent such fishing activity. Nor can it be said that China has 'exercise[d] best possible efforts' to prevent illegal and unregulated fishing activities. And it certainly cannot be said that China has done 'the utmost, to obtain [the] result' that its vessels shall not fish in the Philippines' EEZ.754
The Philippines concludes that 'China is not per se responsible for the actions of its fishermen, 'but it is responsible for its own failure to control their illegal and damaging activities.
Memorial, para. 6.36.
Merits Hearing Tr. (Day 2), p. 160.
Merits Hearing Tr. (Day 2), p. 160.
Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015.
Merits Hearing Tr. (Day 4), pp. 85-86.
Merits Hearing Tr. (Day 4), p. 86; Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, para. 129.
Merits Hearing Tr. (Day 4), pp. 87-88.
Merits Hearing Tr. (Day 4), p. 88.
Philippines considers that China's failure to control its fishermen amounts to a breach of the Convention that engages the State responsibility of China.
As far as the Tribunal is aware, China has never directly addressed the allegation that it has unlawfully permitted its fishermen to fish within the Philippines' exclusive economic zone at Second Thomas Shoal or Mischief Reef.
Rather, the position that consistently appears in China's contemporaneous statements is that it does not consider the Philippines to have rights in the area of Second Thomas Shoal and Mischief Reef. Thus, in its diplomatic correspondence with the Philippines, China has stated generally that:
China possesses indisputable sovereignty over Nansha Islands and its adjacent waters, and the construction, usage and other activities at the relevant islands, reefs, shoals and sands are actions completely within the scope of China's sovereignty, sovereign rights and jurisdiction.757
China has repeatedly demanded that the Philippines withdraw its personnel from Second Thomas Shoal in the following terms:
The Chinese side demands the Philippine side withdraw all its personnel and facilities from China's islands and reefs, and honor its commitment to tow away its illegally 'grounded' vessel on China's Ren'ai Jiao [Second Thomas Shoal] 758
Likewise, China has stated that 'China has indisputable sovereignty over Nansha Islands and their adjacent waters, Meiji Jiao [Mischief Reef] . . . included.'759
Merits Hearing Tr. (Day 4), p. 89.
Note Verbale from the Ministry of Foreign Affairs, People's Republic of China to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 5 (20 January 2015) (Annex 681).
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-195 (30 June 2014) (Annex 675); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-197 (4 July 2014) (Annex 676); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-264 (2 September 2014) (Annex 678); see also Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-336 (28 October 2014) (Annex 680); Note Verbale from the Ministry of Foreign Affairs, People's Republic of China to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 5 (20 January 2015) (Annex 681); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-068 (4 March 2015) (Annex 685); Note Verbale from the Department of Boundary and Ocean Affairs, Ministry of Foreign Affairs, People's Republic of China, to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 22 (30 March 2015) (Annex 686); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (2015) PG-329 (29 September 2015) (Annex 692).
In its Award on Jurisdiction, the Tribunal deferred any final decision with respect to its jurisdiction concerning the Philippines' Submission No. 9, for the same reason that it deferred consideration of its jurisdiction with respect to the Philippines' Submission No. 8 (see paragraphs 690 to 691 above). Specifically, the Tribunal considered that its jurisdiction over these Submissions was contingent on whether Mischief Reef and Second Thomas Shoal were low-tide elevations and whether any other feature claimed by China is capable of generating an entitlement to an exclusive economic zone in the area of those features that would overlap the entitlement of the Philippines.
Having determined that Mischief Reef and Second Thomas Shoal are both low-tide elevations, and that no high-tide feature in the Spratly Islands is capable of generating an entitlement to an exclusive economic zone, the Tribunal concludes that it has jurisdiction with respect to the Philippines' Submission No. 9 for the same reason already stated with respect to Submission No. 8 (see paragraphs 692 to 695 above).
The Tribunal has held that Mischief Reef and Second Thomas Shoal are low-tide elevations located within areas where only the Philippines possesses possible entitlements to maritime zones under the Convention. The relevant areas can only constitute the exclusive economic zone of the Philippines. Accordingly, the Philippines'and not China'possesses sovereign rights with respect to resources in these areas, and the law relevant to Chinese fishing activities at these reef formations is the law governing fishing by the vessels of one State in the exclusive economic zone of another.
In this respect, Article 61(1) of the Convention provides that '[t]he coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.' The remainder of Article 61 concerns the process through which the coastal State will determine the allowable catch.
Article 62 of the Convention then outlines the circumstances in which vessels of other States will have access to the fisheries of a State's exclusive economic zone. Article 62(2) provides
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-214 (28 June 2015) (Annex 689).
that '[w]here 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 . . . .' Article 62(3) then provides guidance on the factors to be considered in according access to other States.
These provisions make clear that it is the Philippines that controls the process of granting and regulating access to the fisheries of its exclusive economic zone, subject to the provisions of the Convention in doing so. It is thus for the Philippines to determine the allowable catch for fisheries within its exclusive economic zone. If after determining the allowable catch, the Philippines also determines that it lacks the capacity to fully harvest the allowable catch, it must allow other States access to the fishery.
Article 62(4) then imposes an obligation on nationals of other States fishing in the exclusive economic zone to comply with the laws and regulations of the coastal State and sets out an illustrative list of the areas that may be regulated. Article 62(4) provides in full as follows:
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:
licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry;
determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period;
regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used;
fixing the age and size of fish and other species that may be caught;
specifying information required of fishing vessels, including catch and effort statistics and vessel position reports;
requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data;
the placing of observers or trainees on board such vessels by the coastal State;
the landing of all or any part of the catch by such vessels in the ports of the coastal State;
terms and conditions relating to joint ventures or other cooperative arrangements;
requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research;
enforcement procedures.
Article 62(4) thus expressly requires Chinese nationals to comply with the licensing and other access procedures of the Philippines within any area forming part of the exclusive economic zone of the Philippines. The Convention imposes an obligation directly on private parties engaged in fishing that would apply to Chinese nationals and vessels engaged in fishing at Mischief Reef and Second Thomas Shoal and require them to comply with the terms and conditions of the laws and regulations of the Philippines.
The Convention also imposes obligations on States Parties with respect to activities in the exclusive economic zone of other States. Article 58(3) of the Convention provides as follows:
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.
The nature of the obligation to have 'due regard to the rights and duties' of another State was considered by the tribunal in the Chagos Marine Protected Area Arbitration in the context of Article 56(2) (concerning the reversed situation of the regard owed by the coastal State to the rights and duties of other States within its exclusive economic zone). The tribunal in that matter reasoned as follows:
the ordinary meaning of 'due regard' calls for the [first State] to have such regard for the rights of [the second State] as is called for by the circumstances and by the nature of those rights. The Tribunal declines to find in this formulation any universal rule of conduct. The Convention does not impose a uniform obligation to avoid any impairment of [the second State's] rights; nor does it uniformly permit the [first State] to proceed as it wishes, merely noting such rights. Rather, the extent of the regard required by the Convention will depend upon the nature of the rights held by [the second State], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [first State], and the availability of alternative approaches.760
In the context of the duties of a flag State with respect to fishing by its nationals, the International Tribunal for the Law of the Sea interpreted the obligation of due regard, when read in conjunction with the obligations directly imposed upon nationals by Article 62(4), to extend to a duty 'to take the necessary measures to ensure that their nationals and vessels flying their
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, para. 519.
flag are not engaged in IUU fishing activities.'761The Fisheries Advisory Opinion goes on to note that:
the obligation of a flag State . . . to ensure that vessels flying its flag are not involved in IUU fishing is also an obligation 'of conduct'. . . . as an obligation 'of conduct' this is a 'due diligence obligation', not an obligation 'of result'. . . . The flag State is under the 'due diligence obligation' to take all necessary measures to ensure compliance and to prevent IUU fishing by fishing vessels flying its flag.762
The Tribunal agrees with the Fisheries Advisory Opinion in this respect. Given the importance of fisheries to the entire concept of the exclusive economic zone, the degree to which the Convention subordinates fishing within the exclusive economic zone to the control of the coastal State, and the obligations expressly placed on the nationals of other States by Article 62(4) of the Convention, the Tribunal considers that anything less than due diligence by a State in preventing its nationals from unlawfully fishing in the exclusive economic zone of another would fall short of the regard due pursuant to Article 58(3) of the Convention.
With respect to Chinese activities at Mischief Reef and Second Thomas Shoal, the Tribunal notes that it has limited evidence before it. The record of Chinese fishing at these features is restricted to reports from the Armed Forces of the Philippines and confined to a single period in May 2013. The most information is available from Second Thomas Shoal, where the Philippines maintains a small marine detachment, but even there it is apparent that the Philippines is able to observe the activities of China's vessels only from a distance and has not sought to enforce its regulations or restrict the activities of Chinese vessels. China's de facto control over the waters surrounding both features effectively limits the information available to the Philippines and to this Tribunal.
Despite these limitations, the Tribunal is prepared to accept that the account of events provided by the Armed Forces of the Philippines is accurate and that Chinese fishing vessels, accompanied by the ships of CMS, were engaged in fishing at both Mischief Reef and Second Thomas Shoal in May 2013. It does so for two reasons.
First, the Tribunal notes that China has asserted sovereign rights and jurisdiction in the South China Sea, generally, and has apparently not accepted these areas as part of the Philippines'
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 124.
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 129.
exclusive economic zone (see paragraphs 730 to 732 above). Indeed, the Tribunal notes that China has issued a 'Nansha Certification of Fishing Permit' to its nationals, 763which the Tribunal understands to extend to the area of Mischief Reef and Second Thomas Shoal. The Tribunal considers this assertion of jurisdiction over the activities of (at least) Chinese fishermen in the South China Sea to support the Philippines' evidence that Chinese vessels have indeed been fishing at Mischief Reef and Second Thomas Shoal.
Second, the pattern of Chinese fishing activity at Mischief Reef and Second Shoal is consistent with that exhibited at other reef formations for which the Tribunal has information. Thus, in the case of Subi Reef, the Philippines reports as follows:
a Chinese fishing fleet composed of 30 vessels under a unified command sailed on 06 May 2013 from Hainan province, China to the disputed Spratly Islands in the West Philippine Sea for a '40-day operation.' The '40-day operation' is the second of its kind organized by local fishery associations after Sansha City was established by China in June 2012. Each vessel in the fleet, equipped with all-weather communication devices, weighs more than 100 metric tons. Further, a 4,000-ton supply ship and a 1,500-ton transport ship were supplying the fishing vessels with fuel, food, water and other necessities.764
Meanwhile, in the case of Scarborough Shoal, the Tribunal has ample, corroborated evidence of fishing by Chinese vessels working in apparently close coordination with government vessels from CMS and the Fisheries Law Enforcement Command ('FLEC') in the period of April and May 2012. 765These incidents are discussed in detail in connection with the Philippines' Submissions No. 11 and 13.
The Tribunal notes that Subi Reef and Scarborough Shoal are not, as a legal matter, comparable to Mischief Reef and Second Thomas Shoal. Subi Reef lies within the territorial sea of Sandy Cay on the reefs adjacent to Thitu (see paragraphs 367 to 373 above) while Scarborough Shoal is a high-tide feature that would generate its own entitlements to a territorial sea
See Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 15-2341 (16 June 2015) (Annex 690). Details of the Chinese fishing permit system for the Spratly Islands are also evident on the website of the Department of Ocean and Fisheries of Hainan Province, available at <dof.hainan.gov.cn/wsbs/bszn/ 200809/t20080907_993887.html>.
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
See, e.g., Memorandum from Colonel, Philippine Navy, to Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77); Report from the Commanding Officer, SARV-003, Philippine Coast Guard, to Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard (28 April 2012) (Annex 78); Memorandum from the FRPLEU/QRT Chief, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, to Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (2 May 2012) (Annex 79); Report from FRPLEU/QRT Officers, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, to Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (2 May 2012) (Annex 80).
(see paragraphs 333 to 334 above). The Tribunal has not addressed'and will not address'the question of which State has sovereignty over Sandy Cay, Thitu, or Scarborough Shoal and would thus have an entitlement to the surrounding territorial sea.
In contrast, Mischief Reef and Second Thomas Shoal are not capable of generating entitlements to maritime zones and can only form part of the Philippines' exclusive economic zone. Nevertheless, in light of the fact that China has not accepted these areas as part of the Philippines' exclusive economic zone, the Tribunal considers the similarities in Chinese fishing activities at all of these features to be a significant indication of what has taken place at Mischief Reef and Second Thomas Shoal.
The Tribunal expects, from the general positions of the Parties, that Chinese vessels have continued to fish at Mischief Reef and Second Thomas Shoal since May 2013. The Tribunal does not, however, have the direct evidence before it that would enable it to draw such a conclusion for the period subsequent to May 2013.
Having established that Chinese vessels have been engaged in fishing at Mischief Reef and Second Thomas Shoal in May 2013, the Tribunal considers that China has failed to show the due regard called for by Article 58(3) of the Convention to the Philippines' sovereign rights with respect to fisheries within its exclusive economic zone.
In many cases, the precise scope and application of the obligation on a flag State to exercise due diligence in respect of fishing by vessels flying its flag in the exclusive economic zone of another State may be difficult to determine. Often, unlawful fishing will be carried out covertly, far from any official presence, and it will be far from obvious what the flag State could realistically have done to prevent it. That, however, is not the case here.
Chinese fishing vessels have in all reported instances been closely escorted by government CMS vessels. The actions of these ships constitute official acts of China and are all attributable to China as such. Indeed, the accounts of officially organised fishing fleets from Hainan at Subi Reef and the close coordination exhibited between fishing vessels and government ships at Scarborough Shoal support an inference that China's fishing vessels are not simply escorted and protected, but organised and coordinated by the Government. In any event, there can be no question that the officers aboard the Chinese Government vessels in question were fully aware of the actions being taken by Chinese fishermen and were able to halt them had they chosen to do so.
The obligation to have due regard to the rights of the Philippines is unequivocally breached when vessels under Chinese Government control act to escort and protect Chinese fishing vessels engaged in fishing unlawfully in the Philippines' exclusive economic zone.
Based on the considerations outlined above, the Tribunal finds that China has, through the operation of its marine surveillance vessels in tolerating and failing to exercise due diligence to prevent fishing by Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in May 2013, failed to exhibit due regard for the Philippines' sovereign rights with respect to fisheries in its exclusive economic zone. Accordingly, China has breached its obligations under Article 58(3) of the Convention.
* * *
In this Section, the Tribunal addresses the Parties' dispute concerning China's actions with respect to the traditional fishing activities of Philippine nationals at Scarborough Shoal. This dispute is reflected in the Philippines' Submission No. 10, which provides as follows:
China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal;
In its Award on Jurisdiction, the Tribunal held that this Submission reflects a dispute that does not concern maritime boundary delimitation and is not barred from the Tribunal's consideration by any requirement of Section 1 of Part XV.766The Tribunal noted that the Philippines had clarified that the activities alleged all occurred within the 12-nautical-mile territorial sea generated by Scarborough Shoal and that, accordingly, determination of Submission No. 10 does not depend on the characterisation of the feature as a rock or an island under Article 121 of the Convention.767Nor do Articles 297 and 298 of the Convention apply in the territorial sea to restrict the Tribunal's jurisdiction with respect to fisheries and law enforcement.768In addition, the Tribunal noted that traditional fishing rights 'may exist even within the territorial waters of another State,' and considered that its jurisdiction to address this dispute is not dependent on any prior determination of sovereignty over Scarborough Shoal. 769In consequence, the Tribunal concluded that it has jurisdiction to address the matters raised in the Philippines' Submission No. 10 'to the extent that the claimed rights and alleged interference occurred within the territorial sea of Scarborough Shoal.'770
The facts underlying the present Submission concern the conduct of Chinese Government vessels at Scarborough Shoal since 2012, and in particular their interactions with Philippine fishermen proximate to the feature.
Even as several States have claimed sovereignty over Scarborough Shoal, there is evidence that the surrounding waters have continued to serve as traditional fishing grounds for fishermen,771including those from the Philippines, Viet Nam, and China (including from Taiwan). The background to a Philippine Navy report in the record before the Tribunal describes Scarborough Shoal as 'a traditional fishing ground of fishermen from neighbouring Asian countries that have been heading to this area for its rich marine resources. Both foreign and local fishermen are among those who venture to this atoll and they would be fishing there for about a week or more.' 772China's Foreign Ministry Spokesperson has likewise asserted that '[t]he waters surrounding the Huangyan Island [Scarborough Shoal] has been a traditional fishing ground for Chinese fishermen. Since ancient times, Chinese fishermen have been fishing in waters surrounding the Island.'773Affidavits from Filipino fishermen proffered by the Philippines describe having seen nationals of other States, including Viet Nam and China (including from Taiwan), fishing at Scarborough Shoal.774
Historical cartography evidences a connection between Scarborough Shoal and the Philippine mainland. A map of the Philippines produced in 1734 included the shoal;775another produced in 1784 labelled Scarborough Shoal as 'Bajo de Masinloc'.776Other documents provided by the Philippines'including a 1953 book published by its Bureau of Fisheries'depict
See, e.g., P. Manacop, 'The Principal Marine Fisheries' in D.V. Villadolid (ed.), Philippine Fisheries: Handbook Prepared by the Technical Staff of the Bureau of Fisheries, p. 103 at p. 121 (1953) (Annex 8);
A.M. Mane, 'Status, Problems and Prospects of the Philippine Fisheries Industry,' Philippine Farmers Journal, Vol. 2, No. 4, p. 32 at p. 34 (1960) (Annex 244).
Memorandum from Colonel, Philippine Navy, to Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (April 2012) (Annex 77).
Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Liu Weimin's Regular Press Conference (18 April 2012), available at <nl.china-embassy.org/eng/ wjbfyrth/t925289.htm>.
See Affidavit of R.Z. Comandante (12 November 2015), paras. Q38-A38 (Annex 693) (hereinafter 'Affidavit of R.Z. Comandante'; Affidavit of T.D. Forones (12 November 2015), paras. Q8-A8 (Annex 694) (hereinafter 'Affidavit of T.D. Forones'); Affidavit of M.C. Lanog (12 November 2015), paras. Q26-A26 (Annex 695) (hereinafter 'Affidavit of M.C. Lanog'); Affidavit of J.P. Legaspi (12 November 2015), paras. Q-18-A18 (Annex 696) (hereinafter 'Affidavit of J.P. Legaspi'); Affidavit of Crispen Talatagod (12 November 2015), paras. Q7-A7 (Annex 697) (hereinafter 'Affidavit of C.D. Talatagod'); Affidavit of C.O. Taneo (12 November 2015), paras. Q18-A18 (Annex 698) (hereinafter 'Affidavit of
C.O. Taneo').
A.R. Brotons, Spain in the Philippines (16th-19th Centuries), pp. 16, 24 (19 March 2014) (Annex 238).
Map of Pacific Ocean between the coast of California and Mexico and Japan, Philippines, and the coast of China (Spain, c. 1784) (Annex M113).
Scarborough Shoal as having historically served as one of the 'principal fishing areas' for Filipino fishermen.777
Affidavits of six fishermen interviewed by the Philippines confirm the practice of fishing at Scarborough Shoal in recent generations, 778providing direct documentation of Philippine fishing activities in the area at least since 1982779and indirect evidence from 1972.780Fishes caught at the shoal'primarily using spear and net fishing methods 781'have historically included '[b]onito, talakitok, tanguige and other species of fish found beneath or near rocks.'782
Beginning in April 2012, a series of incidents occurred between Philippine and Chinese vessels at Scarborough Shoal that heightened tensions between the Parties. Philippine authorities reported increasing numbers of Chinese fishing vessels at Scarborough Shoal and stepped up inspections in response to indications that Chinese vessels were employing destructive fishing methods and harvesting endangered giant clams, corals, and sea turtles. China increased the deployment of its own FLEC and CMS vessels in response, leading to a series of incidents between Chinese and Philippine vessels on 10 April 2012, 78328 April 2012, 784and
P. Manacop, 'The Principal Marine Fisheries' in D.V. Villadolid (ed.), Philippine Fisheries: A Handbook Prepared by the Technical Staff of the Bureau of Fisheries, p. 103 at p. 121 (1953) (Annex 8). See also
A.M. Mane, 'Status, Problems and Prospects of the Philippine Fisheries Industry,' Philippine Farmers Journal, Vol. 2, No. 4 (1960), p. 34 (Annex 244).
See Affidavit of R.Z. Comandante, paras. Q7-A8, Q12-A13, Q15-A19, Q35-A35, Q38-A38; Affidavit of
T.D. Forones, paras. Q7-A8, Q19-A19; Affidavit of M.C. Lanog, paras. Q13-A13, Q18-A18; Affidavit of
J.P. Legaspi, paras. Q2-A4, Q9-A11, Q18-A18; Affidavit of C.D. Talatagod, paras. Q6-A7, Q19-A19; Affidavit of C.O. Taneo, paras. Q6-A9, Q14-A14, Q17-A18.
Affidavit of J.P. Legaspi, paras. Q4-A5; Affidavit of C.D. Talatagod, para. A7.
See also Affidavit of R.Z. Comandante, para. A12.
Affidavit of T.D. Forones, paras. A5, A11, A18, A20; Affidavit of J.P. Legaspi, para. Q12-A12, Q15-A15; Affidavit of C.D. Talatagod, para. A4, A9, A20 (Annex 697).
Affidavit of R.Z. Comandante, para. A11.
See Memorandum from Colonel, Philippine Navy, to Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (April 2012) (Annex 77); Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Liu Weimin's Regular Press Conference (12 April 2012) (Annex 117); Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of the People's Republic of China in Manila, No. 12-0894 (11 April 2012) (Annex 205); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 12-1137 (26 April 2012) (Annex 207); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs of the Philippines, No. (12) PG-206 (29 April 2012) (Annex 208).
See Report from the Commanding Officer, SARV-003, Philippine Coast Guard, to Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard, paras. 5.44-5.48 (28 April 2012) (Annex 78); Memorandum from the FRPLEU/QRT Chief, Bureau of Fisheries and Aquatic Resources,
26 May 2012.785The environmental implications of Chinese fishing are discussed in greater detail with respect to Submission No. 11 (see paragraphs 815 to 993 below). The incidents between Philippine and Chinese vessels are discussed in connection with the Philippines' Submission No. 13 (see paragraphs 1044 to 1109 below).
Efforts to negotiate a mutual withdrawal of government vessels were not successful,786and by early June 2012, China had 'deployed about 28 utility boats across the southeast entrance of the shoal and rigged them together by rope to establish a makeshift boom or barrier,' blocking the entrance to the lagoon of Scarborough Shoal.787
The record indicates that, as tensions intensified, fishermen active in the vicinity of Scarborough Shoal were affected by the Parties' dispute. In a memorandum dated 2 June 2012, the Commander of the Philippines' 'Naval Forces Northern Luzon' wrote that China's barrier was 'likely designed to discourage if not prevent the ingress/egress of Philippine vessels to the shoal.'788He also noted that '[t]his recent action poses a danger to safety of life at sea among
Republic of the Philippines, to Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (2 May 2012) (Annex 79); Report from 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 (2 May 2012) (Annex 80); Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-080-2012-S (24 May 2012) (Annex 81); Embassy of the People's Republic of China in the Republic of the Philippines, China's Sovereignty over the Huangyan Island is Indisputable (15 May 2012) (Annex 119); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 12-1222 (30 April 2012) (Annex 209); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassies of ASEAN Member States in Manila, No. 12-1372 (21 May 2012) (Annex 210); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (12) PG-239 (25 May 2012) (Annex 211); Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of People's Republic of China in Manila, No. 12-1371 (21 May 2012) (Annex 688).
See Report from 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) (Annex 82); Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of People's Republic of China in Manila, No. 12-1453 (31 May 2012) (Annex 212); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (12) PG-251 (12 June 2012) (Annex 213); Embassy of the People's Republic of China in the Republic of the Philippines, 'Ten Questions Regarding Huangyan Island' (15 June 2012) (Annex 120).
Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-080-2012-S (24 May 2012) (Annex 81); Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-110-2012-S (26 July 2012) (Annex 84).
Memorandum from the Commander, Naval Forces Northern Luzon, Philippine Navy, to the Flag Officer in Command, Philippine Navy, No. CNFNL Rad Msg Cite NFCC-0612-001 (2 June 2012) (Annex 83).
Memorandum from the Commander, Naval Forces Northern Luzon, Philippine Navy, to the Flag Officer in Command, Philippine Navy, No. CNFNL Rad Msg Cite NFCC-0612-001, para. 5 (2 June 2012) (Annex 83).
Philippine fishermen, who use the shoal as a shelter during the typhoon season to mitigate the effects of the southwest monsoon.'789
Similarly, a memorandum submitted by the Director of the Philippine Bureau of Fisheries and Aquatic Resources states:
Since April 2012, when the Chinese took control of Scarborough Shoal, Filipinos find it difficult to enter the shoal because the Chinese law enforcement vessels have created a 'no fishing zone' around it. Chinese patrol vessels enforce this zone by threatening Filipino fishermen who attempt to fish at Scarborough.
This conduct of the Chinese government, together with its enactment of new laws, such as the 2012 Hainan Regulations and the 2012 fishing ban, have created a deep sense of fear among Filipino fishermen that has significantly curtailed their fishing activities and severely impacted their ability to earn a livelihood.790
The accounts provided by Filipino fishermen confirm their exclusion from fishing grounds at Scarborough Shoal. Mr. Crispen Talatagod, a retired fisherman from the municipality of Infanta in Pangasinan province, stated:
I stopped fishing in 2012 because we were prohibited from fishing there by the Chinese. I remember that when my companions and I went to Scarborough Shoal, we were met by an armed member of [the] Chinese Coast Guard. The guard told us that they own Scarborough Shoal and he prevented us from fishing there. We were surprised and afraid at that time. We tried to hide and wait for nighttime before starting to fish, but the Chinese were able to anticipate this. Again, they prohibited us from fishing in Scarborough Shoal. I was not able to return since then.791
Similarly, Mr. Tolomeo Forones, a resident of Masinloc, recalled:
No one fishes there anymore. I tried to go back to Scarborough Shoal last June 2012 and July 2013 with some members of the media. When we arrived only Chinese Coat Guard vessels were there to drive away anyone who attempts to go in.792
Additionally, Mr. Cecilio Taneo, of Masinloc, said:
The Filipinos were prohibited by the Chinese from entering the Scarborough Shoal. While the Filipinos are still far from reaching the Scarborough Shoal, the Chinese already gave a signal not to proceed further. The Chinese used water cannons against the Filipinos.793
During other periods, however, fishermen were occasionally permitted to continue to fish at the shoal. Opportunities to do so appear to have been limited. Mr. Jowe Legaspi, a fisherman who began fishing at Scarborough Shoal in 1994,794reported:
Memorandum from the Commander, Naval Forces Northern Luzon, Philippine Navy, to the Flag Officer in Command, Philippine Navy, No. CNFNL Rad Msg Cite NFCC-0612-001 (2 June 2012), para. 5 (Annex 83).
Affidavit of A.G. Perez, Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, paras. 5-6 (26 March 2014) (Annex 241).
Affidavit of C.D. Talatagod, para. A24. 792Affidavit of T.D. Forones, para. A25. 793Affidavit of C.O. Taneo, para. A30.
[I]n February to March 2014, they temporarily let fishermen in at Scarborough Shoal. But suddenly in April 2014, they ward us off again. In May or June 2014, they harassed Filipino fishermen through water cannon, sound blare, and there were times that they have a gun when they came near us.795
Since the introduction of restrictions on Philippine fishing activity at Scarborough Shoal, several of the fishermen interviewed noted a decrease in income,796expressed uncertainty about the continued viability of their trade,797or have retired.798
The Philippines argues that China violated its obligations under Article 2(3) of the Convention, and considers this conclusion supported indirectly by reference to Articles 51(1) and 62(3) of the Convention.799Additionally, the Philippines submits that China has violated Articles 279800and 300 of the Convention.801
The Philippines maintains that, by preventing Filipino fishermen from fishing in the waters of Scarborough Shoal,802China has violated Article 2(3) of the Convention, which provides that 'sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.'803
As a threshold matter, the Philippines submits that Article 2(3), rather than being merely hortatory, imposes substantive obligations on States. The Philippines recalls the Chagos
Affidavit of J.P. Legaspi, para. A5.
Affidavit of J.P Legaspi, para. A27.
Affidavit of T.D. Forones, para. Q27-A27; Affidavit of M.C. Lanog, para. Q27-A27; Affidavit of
J.P. Legaspi, para. Q28-A28; Affidavit of C.D. Talatagod, para. Q27-A27; Affidavit of C.O. Taneo, para. Q34-A35.
Affidavit of T.D. Forones, para. Q27-A27; Affidavit of C.D. Talatagod, para. Q27-A27.
Affidavit of C.D. Talatagod, para. Q27-A27.
Merits Hearing Tr. (Day 2), pp. 185-186; (Day 4), pp. 108-110.
Memorial, paras. 6.42-6.45; Merits Hearing Tr. (Day 4), pp. 110-111.
Memorial, paras. 6.46-6.47; Merits Hearing Tr. (Day 2), pp. 185-186.
802Memorial, paras. 3.51-3.54, 6.36-6.37.
Convention, art. 2(3).
Marine Protected Area Arbitration, 804in which the tribunal 'unanimously rejected' the argument that Article 2(3) was 'descriptive' only.805
In this regard, the Philippines also recalls the individual opinion of Judge Alvarez in the Anglo-Norwegian Fisheries case, acknowledging that a State might 'determine the extent of its territorial sea,' on the condition that such determination 'does not infringe on rights acquired by other states.' 806Finally, the Philippines regards instructive the writings of Sir Gerald Fitzmaurice, who framed traditional fishing rights in the following terms:
[I]f the fishing vessels of a given country have been accustomed from time immemorial, or over a long period, to fish in a certain area, on the basis of the area being high seas and common to all, it may be said that their country has through them . . . acquired a vested interest that the fisheries of that area should remain available to its fishing vessels (of course on a non-exclusive basis)'so that if another country asserts a claim to that area as territorial waters, which is found to be valid or comes to be recognized, this can only be subject to the acquired rights of the fishery in question, which must continue to be respected.807
Accordingly, the Philippines deems Article 2(3) to impose substantive obligations informed by general rules of international law, including the preservation of pre-existing rights.
One such rule, the Philippines submits, is the protection of traditional fishing rights of the sort raised in its Submission No. 10; there is, in other words, 'a general rule of international law that requires a state to respect long and uninterrupted fishing by the nationals of another state in its territorial sea.'808
In the Philippines' view, the protection of traditional fishing rights is firmly established in national and international jurisprudence. In The Paquete Habana, for instance, the Philippines notes that the U.S. Supreme Court recognised, then 'adopted and applied the rule of customary international law that exempts fishing vessels from prize capture in wartime.'809
From arbitral practice, the Philippines recalls the holding in the Eritrea v. Yemen arbitration, that required Yemen to 'ensure that the traditional fishing regime of free access and enjoyment for the fishermen of both Eritrea and Yemen shall be preserved for the benefit of the lives and
Chagos Marine Protected Area (Mauritius v. United Kingdom), Award of 18 March 2015.
Merits Hearing Tr. (Day 2), p. 164.
Anglo-Norwegian Fisheries (United Kingdom v. Norway), Judgment, ICJ Reports 1951, p. 150.
G. Fitzmaurice, 'The Law and Procedure of the International Court of Justice, 1951-54: General Principles' British Yearbook of International Law, Vol. 30, p. 1 at p. 51 (1953).
Hearing Tr. (Day 2), p. 165.
Hearing Tr. (Day 2), pp. 165-166, referring to The Paquete Habana, 175 U.S. 677 (1900).
livelihoods of this poor and industrious order of men.'810The Philippines therefore submits that, 'provided it has been exercised over a long period of time without interruption or opposition,' traditional fishing in the territorial sea of another State is protected by general international law as incorporated through Article 2(3) of the Convention.811In this regard, the Philippines notes that, in the Abyei Arbitration, the tribunal 'applied the same rule even to the delimitation of a land boundary to protect traditional grazing rights.'812
With regard to the scope of traditional fishing rights protected, the Philippines again refers to the Eritrea v. Yemen award. The Philippines accordingly argues that a State may restrict fishing rights 'only . . . to the extent those activities may go beyond those that have traditionally been conducted.'813Within the sphere of protected fishing rights, however, the Philippines considers that 'any other administrative measure that might impact' traditional fishing rights 'must be agreed between the states involved.'814
The Philippines argues that fishing by Philippine nationals at Scarborough Shoal 'plainly meets' the threshold required to deem it a protected activity under international law.815It characterises Filipino fishing practices in the area as 'longstanding',816'long',817'deep', 818'peaceful', 819'uninterrupted', 820'ancient', 821and having occurred 'since times immemorial'.822In the Philippines' view, a combination of sources, ranging from (a) colonial maps of the Philippines depicting Scarborough Shoal, 823(b) twentieth-century publications
Eritrea v. Yemen, Award of 9 October 1998, RIAA Vol. XXII p 209 at pp. 329-330, para. 526.
Merits Hearing Tr. (Day 2), p. 170; see also Merits Hearing Tr. (Day 2), p. 165.
Merits Hearing Tr. (Day 2), p. 170; Abyei Arbitration (Government of Sudan v. Sudan People's Liberation Movement/Army), Final Award of 22 June 2009, RIAA, Vol. XXX, p. 145 at pp. 408-409, 412, paras. 753-754, 766.
Merits Hearing Tr. (Day 2), p. 171.
Merits Hearing Tr. (Day 2), pp. 171-172.
Merits Hearing Tr. (Day 2), p. 170.
Merits Hearing Tr. (Day 2), p. 163.
Merits Hearing Tr. (Day 2), p. 181.
Merits Hearing Tr. (Day 2), p. 174.
Merits Hearing Tr. (Day 2), p. 181.
Merits Hearing Tr. (Day 2), p. 181.
Memorial, para. 6.40.
Memorial, para. 6.41.
Memorial, para. 6.41; Hearing Tr. (Day 2), p. 175.
describing fishing practices there,824and (c) testimony of Filipino fishermen,825all support the conclusion that the fishing practices it alleges qualify as activities protected under Article 2(3) of the Convention.
In the Philippines' view, China has additionally breached its obligations under Article 2(3) of the UN Charter and Article 279 of the Convention to resolve disputes through peaceful means.826It suggests that China 'rejected' a Philippine proposal to settle the Parties' dispute through recourse to the International Tribunal for the Law of the Sea;827instead, the Philippines argues, China 'sought to consolidate its hold on Scarborough Shoal by deploying and anchoring Chinese vessels in such manner as to form an effective physical barrier to prevent Philippine vessels from entering the area.'828The Philippines adds:
Despite the longstanding use of Scarborough Shoal as a traditional fishing ground by Filipino fishermen, China abruptly acted to prevent them from pursuing their livelihoods in the area in April and May 2012. . . . China has since that date exercised control over Scarborough and only intermittently allowed Filipino fishing vessels to approach the area. These acts violate China's obligations under the Convention.829
Finally, the Philippines seeks to distinguish its Submissions regarding 'historic fishing rights' from 'historic rights' as claimed by China. It does so in three ways. First, whereas China allegedly asserts 'rights of control', including over 'exploration for and exploitation of all the resources within the nine-dash line,' the Philippines maintains that it 'seeks only access for its fishermen to pursue their traditional livelihood.'830Second, the Philippines claims that 'there is an obvious and significant difference between individual, non-exclusive rights on the one hand,' such as those for which it purports to seek protection in this arbitration, and 'exclusive sovereign rights on the other,' including China's claim to 'exclusive sovereign rights to all the resources in areas beyond 12 miles from Scarborough [Shoal].' 831Third, the Philippines contends that its Submission No. 10 is 'limited to the territorial sea''the regime of which is circumscribed by 'other rules of international law' per Article 2(3)' as compared with China's
Memorial, para. 6.41; Hearing Tr. (Day 2), pp. 175-176; see also A.M. Mane, 'Status, Problems and Prospects of the Philippine Fisheries Industry,' Philippine Farmers Journal, Vol. 2, No. 4 (1960), p. 34 (Annex 244).
Affidavit of R.Z. Comandante; Affidavit of T.D. Forones; Affidavit of M.C. Lanog; Affidavit of
J.P. Legaspi; Affidavit of C.D. Talatagod; Affidavit of C.O. Taneo.
826Memorial, para. 6.42-6.45, 7.35; Merits Hearing Tr. (Day 2), pp. 185-186; (Day 4), pp. 110-112.
Memorial, para. 3.52; Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 12-0894 (11 April 2012). (Annex 205).
Memorial, para. 3.53.
Memorial, para. 6.42.
Merits Hearing Tr. (Day 2), p. 172.
Merits Hearing Tr. (Day 2), p 173.
assertion of 'exclusive historic rights . . . beyond the limits of any conceivable entitlement under the Convention.'832
The Philippines considers that Articles 51(1) and 62(3) of the Convention, though not directly applicable to the present case, are nevertheless relevant insofar as they refer to traditional fishing rights. 833Article 51(1) provides that 'an archipelagic State . . . shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.' For its part, Article 62(3) provides that, '[i]n 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 need to minimize economic dislocation in States whose nationals have habitually fished in the zone.'
In the Philippines' view, Articles 51(1) and 62(3) are important for two reasons. First, they constitute an 'express recognition of the existence, and underscore[] the importance, of traditional fishing by the nationals of the immediately adjacent coastal states.'834Second, the articles confirm that, where the drafters of the Convention intended to 'preserve traditional fishing in the context of the new legal regimes they created,' they did so 'explicitly' and 'made clear to what extent such prior uses were or were not protected.'835
Finally, the Philippines submits that China has 'unlawfully endangered justice by exacerbating the dispute between it and the Philippines concerning their maritime rights and entitlements in the vicinity of Scarborough Shoal.'836Specifically, the Philippines considers China's conduct to be in breach of its obligations, both under Articles 279 and 300 of the Convention and under general international law, to refrain from 'any acts that might aggravate or extend the dispute.'837The Philippines' arguments in relation to these issues are elaborated more fully in paragraphs 1130 to 1140 of this Award, relating to its Submission No. 14.
Hearing Tr. (Day 2), p. 173.
Hearing Tr. (Day 4), pp. 107-110.
Merits Hearing Tr. (Day 4), pp. 109-110.
Merits Hearing Tr. (Day 4), p. 110.
Memorial, para. 6.45.
Memorial, para. 6.45.
In relation to the present Submission, the Philippines observes that China took no actions to disturb traditional fishing by Filipinos in the aftermath of declaring a territorial sea of 12 nautical miles around Scarborough Shoal in 1958.838It concludes that, in light of 'China's own longstanding practice in what it claims as territorial sea,' China has 'create[d] an obligation not to endanger justice by abruptly altering the status quo on which local artisanal fishing depends.'839
Although China has not responded to the Philippines' Submission in the context of these proceedings, China's position is made clear in its contemporaneous statements from 2012.
Like the Philippines, China claims sovereignty over Scarborough Shoal and asserts that its waters constitute a traditional fishing ground for Chinese fishermen. On 12 June 2012, the Embassy of China in Manila published the following statement laying out China's claim:
Huangyan Island and its surrounding waters have been China's traditional fishing grounds since ancient times. Chinese fishermen have engaged in fishery activities for generations. In addition, they have used Huangyan Island as a safe have in their voyage in the South China Sea. Genglubu, an ancient Chinese navigation log recording trips in the South China Sea, and other ancient documents and literature contain complete records of Chinese fishermen's activities around Huangyan Island. Since the Yuan Dynasty, the Chinese people have never stopped developing and exploiting Huangyan Island and its surrounding waters and the Chinese government has exercised effective management and jurisdiction over their activities all these years. These historical facts are supported by official documents, local chronicles and official maps in the past centuries.840
China also set out its own account of the events that took place on 10 April 2012:
When 12 fishing boats from Hainan, China were conducting normal operations in the Huangyan Island lagoon on the morning of April 10, the Philippine Navy warship Gregorio del Pilar blocked the entrance to the lagoon. The Philippine armed personnel boarded four Chinese fishing boats, question the Chinese fishermen, searched the boats and took photos. They were rude and rough, severely violated China's territorial sovereignty and the human rights of Chinese fishermen. On the afternoon of 10 April, upon learning of the incident, the Chinese marine surveillance vessels No.84 and No.75, both performing routine patrol duty nearby, immediately headed to the Island to protect the safety of the Chinese fishermen. On the afternoon of 11 April, the Chinese fishery administration boat No.303 also arrived on the site and instructed the Chinese fishing boats and fishermen to evacuate safely and get rid of the Philippine intimidation. Afterwards, an archaeological ship of the Philippines stayed in the lagoon for illegal operation for a long time, and refused to leave the site until 18 April after China's repeated representations.841
Memorial, para. 6.44.
Memorial, para. 6.44.
Embassy of the People's Republic of China in the Republic of the Philippines, Ten Questions Regarding Huangyan Island (15 June 2012) (Annex 120).
Embassy of the People's Republic of China in the Republic of the Philippines, Ten Questions Regarding Huangyan Island (15 June 2012) (Annex 120).
China also elaborated on its actions following April 2012:
After the occurrence of Huangyan Island Incident, China has consistently adhered to its position of solving the issue through diplomatic consultation. However, the Philippines kept escalating the situation, made erroneous remarks to mislead the public at home and abroad and whip up hostile sentiments. All the above actions have severely damaged the bilateral relations. To prevent further provocations by the Philippines, the Chinese public service ships have continued to keep close watch over Huangyan Island waters, provide administrative and other service to Chinese fishing boats in accordance with China's laws, so as to ensure Chinese fishermen a good environment for operations in their traditional fishing grounds.842
China has also responded to the Philippines' allegations that China's conduct fell short of its obligation to resolve the Parties' dispute peacefully. On 24 May 2012, the Charg'' d'Affaires of the Philippines' Embassy in Beijing met with the Director General of the Department of Boundary and Ocean Affairs of China's Ministry of Foreign Affairs. As recorded by the Philippines, China expressed the following position:
DG Deng also referred to Article 2.4 of the United Nations Charter, saying that on 10 April, the Philippines used a warship to harass unarmed Chinese fishermen. This is a sign of the use of force. Since April 10, all actions of the Philippines in Huangyan Island are in violation of Chinese territorial sovereignty. The Philippines is now citing Article 2.4. China believes that it is the Philippines that has violated this Article and China deeply regrets this.
. . .
There have been no Chinese words or actions to escalate the situation at the multilateral level; on the diplomatic front or in the media. Nor has China taken any action on the ground in Huangyan Island waters.843
As far as the Tribunal is aware, China has not made specific statements concerning the status of Filipino fishermen at Scarborough Shoal. Nevertheless, the Tribunal considers the content of China's statements, especially with regard to the presence and conduct of Chinese vessels at the feature, to indicate China's position that its actions at Scarborough Shoal are generally lawful.
The Tribunal notes at the outset that both the Philippines and China claim sovereignty over Scarborough Shoal and that both the Philippines and China consider Scarborough Shoal to be a traditional fishing ground for their nationals.
Consistent with the limitations on its jurisdiction, the Tribunal has refrained from any decision or comment on sovereignty over Scarborough Shoal. The Tribunal also considers it imperative
Embassy of the People's Republic of China in the Republic of the Philippines, Ten Questions Regarding Huangyan Island (15 June 2012) (Annex 120).
Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-080-2012-S (24 May 2012) (Annex 81).
to emphasise that the following discussion of fishing rights at Scarborough Shoal is not predicated on any assumption that one Party or the other is sovereign over the feature. Nor is there any need for such assumptions. The international law relevant to traditional fishing would apply equally to fishing by Chinese fishermen in the event that the Philippines were sovereign over Scarborough Shoal as to fishing by Filipino fishermen in the event that China were sovereign. The Tribunal's conclusions with respect to traditional fishing are thus independent of the question of sovereignty.
The attention paid to traditional fishing rights in international law stems from the recognition that traditional livelihoods and cultural patterns are fragile in the face of development and modern ideas of interstate relations and warrant particular protection.
Also referred to as artisanal fishing, traditional fishing was extensively discussed in the Eritrea
v. Yemen arbitration, which looked to the reports of the Food and Agriculture Organization of the United Nations (the 'FAO') for guidance on artisanal fishing in the Red Sea. Relying on the FAO's studies of artisanal fishing, that tribunal noted that:
artisanal vessels and their gear are simple. The vessels are usually canoes fitted with small outboard engines, slightly larger vessels (9-12m) fitted with 40-75 hp engines, or fishing sambuks with inboard engines. Dugout canoes and small rafts (ramas) are also in use. Hand lines, gill nets and long lines are used. In its Report on Fishing in Eritrean waters, the FAO study states that this artisanal fishing gear, which varies according to the boat and the fish, is 'simple and efficient'.844
The Eritrea v. Yemen tribunal went on, however, to note:
the term 'artisanal' is not to be understood as applying in the future only to a certain type of fishing exactly as it is practised today. 'Artisanal fishing' is used in contrast to 'industrial fishing'. It does not exclude improvements in powering the small boats, in the techniques of navigation, communication or in the techniques of fishing; but the traditional regime of fishing does not extend to large-scale commercial or industrial fishing nor to fishing by nationals of third States in the Red Sea, whether small-scale or industrial.845
Artisanal fishing has been a matter of concern in a variety of international fora without any common definition having been adopted. Artisanal fishing has been addressed at the World Trade Organization in the context of the Doha Round negotiations on fisheries subsidies,846
Eritrea v. Yemen, Award of 17 December 1999, RIAA Vol. XXII, p. 335 at pp. 359-360, para. 105.
Eritrea v. Yemen, Award of 17 December 1999, RIAA Vol. XXII, p. 335 at p. 360, para. 106.
See World Trade Organisation, Ministerial Declaration, Fourth WTO Ministerial Conference, Doha, Qatar, WT/MIN(01)/DEC/1, paras. 28, 31 (14 November 2001).
where a variety of definitions have been advanced.847Traditional, artisanal, and small-scale fishing has also formed part of the work of the FAO,848the International Labour Office,849and the United Nations Environment Programme ('UNEP').850Despite this attention, the essential defining element of artisanal fishing remains, as the tribunal in Eritrea v. Yemen noted, relative. The specific practice of artisanal fishing will vary from region to region, in keeping with local customs. Its distinguishing characteristic will always be that, in contrast with industrial fishing, artisanal fishing will be simple and carried out on a small scale, using fishing methods that largely approximate those that have historically been used in the region.
The legal basis for protecting artisanal fishing stems from the notion of vested rights and the understanding that, having pursued a livelihood through artisanal fishing over an extended period, generations of fishermen have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears. Thus, traditional fishing rights extend to artisanal fishing that is carried out largely in keeping with the longstanding practice of the community, in other words to 'those entitlements that all fishermen have exercised continuously through the ages,'851but not to industrial fishing that departs radically from traditional practices. Importantly, artisanal fishing rights attach to the individuals and communities that have traditionally fished in an area. These are not the historic rights of States, as in the case of historic titles, but private rights, as was recognised in Eritrea v. Yemen, where the tribunal declined to endorse 'the western legal fiction . . . whereby all legal rights, even those in reality held by individuals, were deemed to be those of the State.'852
Where private rights are concerned, international law has long recognised that developments with respect to international boundaries and conceptions of sovereignty should, as much as possible, refrain from modifying individual rights. Thus the Permanent Court of International Justice in its Settlers of German Origin in Poland advisory opinion noted that '[p]rivate rights
See, e.g., World Trade Organization, Definitions Related to Artisanal, Small-Scale And Subsistence Fishing: Note by the Secretariat, TN/RL/W/197 (24 November 2005).
See, e.g., Food and Agriculture Organization of the United Nations, Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries: In the Context of Food Security and Poverty Eradication (2015).
See, e.g., M. Ben-Yami, Risks and Dangers in Small-Scale Fisheries: An overview, International Labour Office, Sectoral Activities Programme, Doc. SAP 3.6/WP.147 (2000).
See, e.g., D.K. Schorr, UN Environment Programme, Artisanal Fishing: Promoting Poverty Reduction and Community Development through New WTO Rules on Fisheries Subsidies: An Issue and Options Paper, pp. 12-18 (November 2005).
Eritrea v. Yemen, Award of 17 December 1999, RIAA Vol. p. 335 at p. 359, para. 104.
Eritrea v. Yemen, Award of 17 December 1999, RIAA, Vol. XXII, p. 335 at p. 359, para. 101.
acquired under existing law do not cease on a change of sovereignty,'853and the tribunal in the Abyei Arbitration observed that 'traditional rights, in the absence of an explicit agreement to the contrary, have usually been deemed to remain unaffected by any territorial delimitation.'854The same principle was recognised with respect to rights at sea by the tribunal in the Bering Sea Arbitration, when it exempted indigenous peoples from its division of jurisdiction with respect to the hunting of fur seals in the Bering Sea.855
Before turning to the question of the status of artisanal fishing rights under the Convention, the Tribunal notes that it is conscious of what could be seen as a contradiction in the Philippines' Submissions. On the one hand, the Philippines has asserted (and the Tribunal has agreed) that any historic rights China may have had in the waters of the South China Sea beyond its territorial sea were extinguished by the adoption in the Convention and in customary law of the concept of the exclusive economic zone. On the other hand, the Philippines has argued that its traditional fishing rights at Scarborough Shoal must be protected, even in the event that China has sovereignty over the feature.
The Tribunal considers that no contradiction in fact exists between these two positions. Rather, the law reflects the particular circumstances of the creation of the exclusive economic zone.
Under the law existing prior to the exclusive economic zone, any expansion of the maritime areas under national jurisdiction functioned essentially as described in paragraph 799 above. The expansion of jurisdiction was considered equivalent to the adjustment of a boundary or a change in sovereignty, and acquired rights, in particular to fisheries, were considered protected. Thus, in the Fisheries Jurisdiction Cases, the International Court of Justice held that Iceland's expansion of its fisheries zone could give it only preferential rights vis-''-vis the nationals of States that had habitually fished in the area.856
With the adoption in the Convention of the exclusive economic zone, however, a different calculus applied. Having reviewed the extensive attention given to the question of fishing by nationals of other States in the exclusive economic zone (see paragraphs 248 to 254 and 522
Questions relating to Settlers of German Origin in Poland, Advisory Opinion, PCIJ Series B, No. 6, p. 6 at p. 36.
Abyei Arbitration (Government of Sudan v. Sudan People's Liberation Movement/Army), Final Award of 22 June 2009, RIAA, Vol. XXX, p. 145 at p. 412, para. 766.
Award between the United States and the United Kingdom relating to the Rights of Jurisdiction of United States in the Bering's Sea and the Preservation of Fur Seals (United Kingdom v. United States), Award of 15 August 1893, RIAA, Vol. XXVIII, p. 263 at p. 271.
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, ICJ Reports 1974, p. 3 at pp. 27-28, para. 62; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, ICJ Reports 1974, p. 175 at pp. 196-197, para. 54.
to 538 above) and the degree of control over fisheries that was ultimately given to the coastal State, the Tribunal does not consider it possible that the drafters of the Convention intended for traditional or artisanal fishing rights to survive the introduction of the exclusive economic zone. In this respect, the Tribunal disagrees with the conclusions of the tribunal in Eritrea v. Yemen (which held that the traditional fishing regime in the Red Sea extended throughout the maritime zones of those States) and considers that that tribunal was able to reach the conclusions it did only because it was permitted to apply factors other than the Convention itself under the applicable law provisions of the parties' arbitration agreement (see paragraph 259 above).
Under the Convention, therefore, traditional fishing rights are accorded differing treatment across maritime zones:
In archipelagic waters, traditional fishing rights are expressly protected, and Article 51(1) of the Convention provides that 'an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.'
In the exclusive economic zone, in contrast, traditional fishing rights are extinguished, except insofar as Article 62(3) specifies that 'the need to minimize economic dislocation in States whose nationals have habitually fished in the zone' shall constitute one of the factors to be taken into account by the costal State in giving access to any surplus in the allowable catch. The Tribunal considers that the inclusion of this provision'which would be entirely unnecessary if traditional fishing rights were preserved in the exclusive economic zone'confirms that the drafters of the Convention did not intend to preserve such rights. The Convention does not, of course, preclude that States may continue to recognise traditional fishing rights in the exclusive economic zone in their legislation, in bilateral fisheries access agreements, or through regional fisheries management organisations. Such recognition would, in most instances, be commendable, but it is not required by the Convention, except to the extent specified in Article 62(3).
Finally, in the territorial sea, the Convention continued the existing legal regime largely without change. The innovation in the Convention was the adoption of an agreed limit of 12 nautical miles on the breadth of the territorial sea, not the development of its legal content. The Tribunal sees nothing that would suggest that the adoption of the Convention was intended to alter acquired rights in the territorial sea and concludes that within that zone'in contrast to the exclusive economic zone'established traditional
fishing rights remain protected by international law. The Tribunal also notes that the vast majority of traditional fishing takes place in close proximity to the coast.
Based on the record before it, the Tribunal is of the view that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities, including the Philippines, China (including from Taiwan), and Viet Nam. The stories of most of those who have fished at Scarborough Shoal in generations past have not been the subject of written records, and the Tribunal considers that traditional fishing rights constitute an area where matters of evidence should be approached with sensitivity. That certain livelihoods have not been considered of interest to official record keepers or to the writers of history does not make them less important to those who practise them. With respect to Scarborough Shoal, the Tribunal accepts that the claims of both the Philippines and China to have traditionally fished at the shoal are accurate and advanced in good faith.
The Tribunal does not have before it extensive details of the fishing methods traditionally used by either Filipino or Chinese fishermen, or of the communities that have traditionally dispatched vessels to Scarborough Shoal. In keeping with the fact that traditional fishing rights are customary rights, acquired through long usage, the Tribunal notes that the methods of fishing protected under international law would be those that broadly follow the manner of fishing carried out for generations: in other words, artisanal fishing in keeping with the traditions and customs of the region. The Tribunal is not prepared to specify any precise threshold for the fishing methods that would qualify as artisanal fishing, nor does the Tribunal deem it necessary to consider how and when traditional fishing practices may gradually change with the advent of technology.
Based on the record before it,857the Tribunal is of the view that at least some of the fishing carried out at Scarborough Shoal has been of a traditional, artisanal nature. The Tribunal is also open to the possibility that some of the fishing at Scarborough Shoal may have become sufficiently organised and industrial in character that it can no longer fairly be considered artisanal.
See Report from 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 (2 May 2012) (Annex 80); Affidavit of T.D. Forones, para. A5, A8, A11, A18, A20; Affidavit of
J.P. Legaspi, para. Q12-A12 Q15-A15; Affidavit of C.D. Talatagod, para. A4, A7, A9, A20.
Turning to the Philippines' Submission, the Tribunal notes that Article 2(3) of the Convention provides that '[t]he sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.' The Tribunal agrees with the finding in the Chagos Marine Protected Area Arbitration that, in the territorial sea, 'Article 2(3) contains an obligation on States to exercise their sovereignty subject to 'other rules of international law'.'858Traditional fishing rights constitute a vested right, and the Tribunal considers the rules of international law on the treatment of the vested rights of foreign nationals859to fall squarely within the 'other rules of international law' applicable in the territorial sea.
The Tribunal notes, however, that traditional fishing rights are not absolute or impervious to regulation. Indeed, the careful regulation of traditional fishing may be necessary for conservation and to restrict environmentally harmful practices. Customary international law, in this respect, does not restrict the coastal State from reasonable regulation (a principle recognised with respect to treaty-based fishing rights in North Atlantic Coast Fisheries860). Nor would it prevent the coastal State from assessing the scope of traditional fishing to determine, in good faith, the threshold of scale and technological development beyond which it would no longer accept that fishing by foreign nationals is traditional in nature.
The Tribunal finds as a matter of fact that since May 2012, Chinese Government vessels have acted to prevent entirely fishing by Filipino fishermen at Scarborough Shoal for significant, but not continuous, periods of time. The Philippines has provided evidence of Chinese vessels physically blockading the entrance to Scarborough Shoal, 861and Filipino fishermen have testified to being driven away by Chinese vessels employing water cannon.862During these periods, Chinese fishing vessels have continued to fish at Scarborough Shoal.863The actions of Chinese Government vessels constitute official acts of China, and the consequences that follow from them are attributable to China as such.
With respect to these actions, the Tribunal considers that the Philippines' Submission No. 10 is based on one of two alternative premises. If, on the one hand, the Philippines is sovereign over
Chagos Marine Protected Area (Mauritius v. United Kingdom), Award of 18 March 2015, para. 514.
See, e.g., Certain German Interests in Polish Upper Silesia, Merits, Judgment of 25 May 1926, PCIJ, Series A, No.7, p. 4 at p. 42.
North Atlantic Coast Fisheries (United Kingdom/United States), Permanent Court of Arbitration, Award of 7 September 1910, RIAA, Vol. XI, p. 167.
Memorandum from the Commander, Naval Forces Northern Luzon, Philippine Navy, to the Flag Officer in Command, Philippine Navy, No. CNFNL Rad Msg Cite NFCC-0612-001 (2 June 2012) (Annex 83)
Affidavit of T.D. Forones; Affidavit of J.P. Legaspi; Affidavit of C.D Talatagod; Affidavit of C.O. Taneo.
Embassy of the People's Republic of China in the Republic of the Philippines, Ten Questions Regarding Huangyan Island (15 June 2012) (Annex 120).
Scarborough Shoal, then the surrounding waters would constitute the territorial sea of the Philippines, with all that follows from it. If, on the other hand, China is sovereign over Scarborough Shoal, the premise of the Philippines' Submission is that China has failed to respect the traditional fishing rights of Filipino fishermen within China's territorial sea.
In the Tribunal's view, it is not necessary to explore the limits on the protection due in customary international law to the acquired rights of individuals and communities engaged in traditional fishing. The Tribunal is satisfied that the complete prevention by China of fishing by Filipinos at Scarborough Shoal over significant periods of time after May 2012 is not compatible with the respect due under international law to the traditional fishing rights of Filipino fishermen. This is particularly the case given that China appears to have acted to prevent fishing by Filipinos, specifically, while permitting its own nationals to continue. The Tribunal is cognisant that April and May 2012 represented a period of heightened tensions between the Philippines and China at Scarborough Shoal. China's dispute with the Philippines over sovereignty and law enforcement at Scarborough Shoal, however, was with the Philippine Government. The Tribunal does not see corresponding circumstances that would have justified taking action against Filipino fishermen engaged in their traditional livelihood or that would have warranted continuing to exclude Filipino fishermen from Scarborough Shoal for months after the Philippines had withdrawn its official vessels. The Tribunal notes, however, that it would have reached exactly the same conclusion had the Philippines established control over Scarborough Shoal and acted in a discriminatory manner to exclude Chinese fishermen engaged in traditional fishing.
With respect to the Philippines' claim that China's actions at Scarborough Shoal represented a specific failure to fulfil its duties pursuant to Article 2(3) of the UN Charter and Article 279 of the Convention to settle disputes by peaceful means, the Tribunal notes that both Parties found fault with the other in their handling of the standoff and that both found cause to allege breaches of the UN Charter.864The Tribunal does not find the record before it sufficient to support such a claim in respect of either Party.
See, e.g., Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-080-2012-S (24 May 2012) (Annex 81).
Based on the considerations outlined above, the Tribunal finds that China has, through the operation of its official vessels at Scarborough Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal. The Tribunal records that this decision is entirely without prejudice to the question of sovereignty over Scarborough Shoal.
* * *
This Section addresses the Parties' dispute concerning the protection and preservation of the marine environment. This dispute is reflected in the Philippines' Submission No. 11, which provides (as amended):
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;
This dispute is also reflected in the portion of the Philippines' Submission No. 12 concerning environmental harm from China's construction at Mischief Reef:
China's occupation of and construction activities on Mischief Reef
(b) violate China's duties to protect and preserve the marine environment under the Convention; . . .
The Philippines' allegations concerning China's environmental violations relate to two general categories of conduct: harmful fishing practices and harmful construction activities.
Prior to 30 November 2015, the Philippines' Submission No. 11 had been limited to 'the marine environment at Scarborough Shoal and Second Thomas Shoal.'865The Philippines' Memorial focused on environmentally harmful fishing practices at those two features undertaken by Chinese fishing vessels, allegedly with the toleration and active support of China. 866The activities complained of included the use of cyanide and explosives and the harvesting of endangered giant clams and sea turtles. The Philippines also introduced evidence of land reclamation and construction by China on a number of features in the Spratly Islands.867The Philippines argued, in the context of its Submission No. 12(b) concerning Mischief Reef, that China's construction of artificial islands, installations, and structures had breached its obligations to protect and preserve the marine environment. In support of these allegations, the Philippines filed an expert report by reef ecologist Professor Kent E. Carpenter of Old Dominion University in Norfolk, Virginia, United States (the 'First Carpenter Report').
Memorial, p. 272; Jurisdictional Hearing Tr. (Day 2), pp. 86-87, 94-95; Merits Hearing Tr. (Day 3), p. 11.
Memorial, paras. 6.48-6.66.
Memorial, paras. 6.108-6.111; 'Matrix of Events' documents compiled by the Armed Forces of the Philippines for Cuarteron, Gaven, Fiery Cross, Johnson, and Subi Reefs (Annexes 86-91).
Subsequent to filing its Memorial, the Philippines periodically expressed to the Tribunal its 'deep concerns' about China's 'extensive land reclamation' and construction activities at several features in the Spratly Islands and their impact on the 'fragile marine environment in the vicinity of these sites'868in disregard of China's duty not to cause serious harm to the marine environment.'869Shortly before the Hearing on the Merits, the Tribunal granted leave to the Philippines to enter into the record new aerial and satellite photography showing China's construction activities in the South China Sea and a second report by Professor Carpenter, co-authored with Dr. Loke Ming Chou of the National University of Singapore, entitled 'Environmental Consequences of Land Reclamation Activities on Various Reefs in the South China Sea' (the 'Second Carpenter Report').
During the Hearing on the Merits, the Philippines requested the Tribunal's permission to amend Submission No. 11 so that it would also cover the marine environment at Cuarteron Reef, Fiery Cross Reef, Johnson Reef, Hughes Reef, Gaven Reef and Subi Reef.870The Philippines noted that evidence relevant to those features had not been available at the time of drafting the Memorial. The Philippines specified that China's artificial island-building activities at these features breached Articles 123, 192, 194, 197, 205, and 206 of the Convention.871The Tribunal granted the Philippines leave to amend its Submissions, noting that the proposed amendment was related to or incidental to the Philippines' original Submissions (which included the environmental effects of island building at Mischief Reef) and did not involve the introduction of a new dispute between the Parties.872
After seeking the views of the Parties, the Tribunal sought an independent opinion on the environmental impact of China's construction activities. Pursuant to Article 24 of the Rules of Procedure, the Tribunal appointed Dr. Sebastian C.A. Ferse of the Leibniz Center for Tropical Marine Ecology in Bremen, Germany. Dr. Ferse is a coral reef ecologist with over ten years' research experience in Southeast Asia, the Pacific Islands, East Africa, and the Red Sea. His ecological work has focused on coral reef restoration and ecological functioning and the impact of environmental and anthropogenic factors on coral reef benthic communities. Additionally, the Tribunal appointed Dr. Peter J. Mumby, a Professor of coral reef ecology at the School of
See, e.g., Letter from the Philippines to the Tribunal (30 July 2014) (Annex 466).
See, e.g., Letter from the Philippines to the Tribunal (27 April 2015).
Merits Hearing Tr. (Day 4), pp. 169, 203. See also Letter from the Philippines to the Tribunal (30 November 2015); Letter from the Tribunal to the Parties (1 December 2015); Letter from the Tribunal to the Parties (16 December 2015).
Merits Hearing Tr. (Day 4), pp. 186-187.
Letter from the Tribunal to the Parties (16 December 2015). See also Letter from the Tribunal to the Parties (1 December 2015) (inviting China's comments by 9 December 2016).
Biological Sciences at the University of Queensland, Australia, and his colleague, Dr. Selina Ward each with over 20 years' experience. Professor Mumby has advised governments and UN agencies on coral reef and fisheries issues. His work focuses on tropical coastal ecosystems and he is involved in developing ecosystem models to investigate conservation measures in mitigating disturbance on reefs. Dr. Selina Ward is a coral biologist who has conducted research into the responses of corals to environmental stress including elevated nutrients, mechanical damage and elements of climate change. On 26 April 2016, Dr. Ferse, Professor Mumby, and Dr. Ward provided their 'Assessment of the Potential Environmental Consequences of Construction Activities on Seven Reefs in the Spratly Islands in the South China Sea.'873The report is based on an independent review of the factual record, scientific literature, and other publicly available documents, including from China.
As discussed further in paragraphs 925 to 938 below, the Tribunal in its Award on Jurisdiction found that it has jurisdiction over Submission No. 11, as involving a dispute over the interpretation and application of Articles 192 and 194 of the Convention (imposing obligations on States to protect and preserve the marine environment).874The Tribunal deferred its decision on jurisdiction over all of Submission No. 12 for further consideration in connection with the merits.875
The South China Sea includes highly productive fisheries and extensive coral reef ecosystems, which are among the most biodiverse in the world. 876The marine environment around Scarborough Shoal and the Spratly Islands has an extremely high level of biodiversity of species, including fishes, corals, echinoderms, mangroves, seagrasses, giant clams, and marine turtles, some of which are recognised as vulnerable or endangered.877
Dr. rer. nat. S.C.A. Ferse, Professor P. Mumby, PhD and Dr. S. 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) (hereinafter 'Ferse Report').
Award on Jurisdiction, para. 408.
Award on Jurisdiction, para. 409.
See, e.g., First Carpenter Report, pp. 3-9; Second Carpenter Report, pp. 3, 26-27; J.W. McManus, Offshore Coral Reef Damage, Overfishing and Paths to Peace in the South China Sea, pp. 10-11 (rev. ed., 21 April 2016) (hereinafter 'McManus Report'); Ferse Report, pp. 12-14; Merits Hearing Tr. (Day 3), p. 14.
See, e.g., First Carpenter Report, pp. 4-7; Second Carpenter Report, pp. 3, 26-27; McManus Report, pp. 10-11; Ferse Report, pp. 12-16, Merits Hearing Tr. (Day 3), p. 14. See also S. Wells, International Union for Conservation of Nature and Natural Resources (hereinafter 'IUCN'), 'Tridacna gigas,'
While coral reefs are amongst the most biodiverse and socioeconomically important ecosystems, they are also fragile and degrade under human pressures.878Threats to coral reefs include overfishing, destructive fishing, pollution, human habitation, and construction.879
In the South China Sea, ocean currents and the life cycles of marine species create a high degree of connectivity between the different ecosystems. 880This means that the impact of any environmental harm occurring at Scarborough Shoal and in the Spratly Islands may not be limited to the immediate area, but can affect the health and viability of ecosystems elsewhere in the South China Sea.881
Documents adduced by the Philippines record a number of instances since the late 1990s in which Chinese fishing vessels have engaged in environmentally harmful fishing practices and the harvesting of endangered or threatened species. The same documents indicate that Chinese Government vessels have been present on some, but not all, of these occasions. The following is an overview of this record.
The earliest incidents detailed by the Philippines date from January 1998 when, according to police reports, 22 Chinese fishermen were involved in harvesting corals and marine turtles in the waters of Scarborough Shoal.882In March 1998, 29 Chinese fishermen at Scarborough
IUCN Red List of Threatened Species (Annex 724); S. Wells, IUCN, 'Tridacna maxima,' IUCN Red List of Threatened Species (Annex 725); S. Wells, IUCN, 'Tridacna squamosa,' IUCN Red List of Threatened Species (Annex 726).
Ferse Report, p. 7; C. Mora, I.R. Caldwell, C. Birkeland, J.W. McManus, 'Dredging in the Spratly Islands: Gaining Land but Losing Reefs,' PLoS Biology Vol. 14(3), pp. 1-2 (31 March 2016) (Annex 893) (hereinafter 'Mora Report'); A. Feng & Y. Wang, , First Ocean Research Institution of State Oceanic Administration, 'Construction Activities at Nansha Reefs Did Not Affect the Coral Reef Ecosystem,' 10 June 2015, available at <www.soa.gov.cn/xw/dfdwdt/jgbm_155/201506/ t20150610_38318.html> (Annex 872) (hereinafter 'SOA Report').
Ferse Report, p. 7; Mora Report, pp. 1-2.
First Carpenter Report, p. 8; Second Carpenter Report, pp. 3, 26-27; Ferse Report, pp. 12-14.
First Carpenter Report, pp. 9, 13, 18-19; Second Carpenter Report, pp. 3, 26-27; Ferse Report, pp. 37-39.
Memorandum from the Fact Finding Committee, National Police Commission, Republic of the Philippines, to the Chairman and Members of the Regional Committee on Illegal Entrants for Region 1, Republic of the Philippines (28 January 1998) (Annex 28); Memorandum from the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (23 March 1998) (Annex 29). An even earlier document suggests that 62 Chinese fishermen had been prosecuted in the Philippines in 1995 for illegal fishing in
Shoal were reported to be found in possession of dynamite and corals. 883Several of the fishermen were prosecuted and convicted under Philippine fisheries laws.884
Further incidents of unlawful harvesting of coral were reported in a Note Verbale dated 14 January 2000, in which the Philippines asked China to take 'resolute action' against fishermen found with corals at Scarborough Shoal, and expressed concern that:
This illegal activity disturbed the tranquility of the ecosystem and habitat of important species of marine life and, at the same time, caused irreparable damage to the marine environment of the area. It might be noted that the gathering and trade of corals violate the provisions of three (3) international conventions to which China is a signatory, namely, the Convention on Biological Diversity which entered into force on 29 December 1993; the RAMSAR Convention adopted in Iran in 1971, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which entered into force on 01 July 1975.885
In April 2000, three Chinese fishing vessels were found at Scarborough Shoal by Philippine authorities, loaded with corals, cyanide, blasting caps, detonating cord, and dynamite.886
On 29 January 2001, Philippine authorities photographed and confiscated the catch of endangered 'sharks, eels, turtles and corals' from four Chinese fishing vessels in the vicinity of Scarborough Shoal.887The incident led to diplomatic exchanges in which China asserted its sovereignty over Scarborough Shoal and noted that 'the Chinese Government attaches great importance to environmental protection and violators are dealt with in accordance with Chinese
the Spratlys, Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 April 1995) (Annex 21).
Memorandum from the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (23 March 1998) (Annex 29).
People of the Philippines v. Shin Ye Fen, et al., Criminal Case No. RTC 2357-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 30); People of the Philippines v. Wuh Tsu Kai, et al., Criminal Case No. RTC 2362-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 31); People of the Philippines v. Zin Dao Guo, et al., Criminal Case No. RTC 2363-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 32).
Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 200100 (14 January 2000) (Annex 186). See also Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (hereinafter 'CBD'); Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 246; the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, 993 UNTS 243 (hereinafter 'CITES').
Situation Report the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. 004-18074 (18 April 2000) (Annex 41); Letter from the Vice Admiral, Armed Forces of the Philippines, to the Secretary of National Defense, Republic of the Philippines (27 May 2000) (Annex 42).
Memorandum from the Acting Secretary of Foreign Affairs, Republic of the Philippines, to the President of the Republic of the Philippines (5 February 2001) (Annex 44); Office of Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, Apprehension of Four Chinese Fishing Vessels in the Scarborough Shoal, pp. 2-3 (23 February 2001) (Annex 46).
laws and regulations.'888Six weeks later, on 15 March 2001, Philippine authorities again confiscated 'endangered marine resources (giant oysters), cyanide and blasting caps' from Chinese fishing vessels.889
On at least three occasions in 2002, the Philippine Navy confiscated explosives, cyanide, corals, sea shells, and sea clams from Chinese fishing vessels at Scarborough Shoal.890
On 31 October 2004, Philippine naval vessels again intercepted Chinese fishing vessels at Scarborough Shoal laden with giant clams.891
On 30 December 2005, during a 'routine inspection' at Scarborough Shoal, the Philippine vessel BRP Artemio Ricarte found four Chinese fishing vessels in possession of 'assorted corals, live clamshells weighing about 16 tons and illegal fishing gears.'892The catch was photographed and confiscated and the crew then released. The incident led the Chinese Vice Foreign Minister to summon the Philippine Ambassador in Beijing to convey China's 'grave concern and strong opposition' and reiterate China's position that it has 'indisputable sovereignty over Scarborough Shoal and adjacent waters.'893The Philippines in turn expressed 'grave concern' about the 'harmful illegal fishing and rampant trading of endangered corals and marine species in the South China Sea.'894
Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs, Republic of the Philippines, No. ZPE-06-2001-S (13 February 2001) (Annex 43); see also Memorandum from the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines, pp. 1-2 (14 February 2001) (Annex 45); Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs, Republic of the Philippines, No. ZPE-09-2001-S (17 March 2001) (Annex 47).
Memorandum from the Embassy of the Republic of the Philippines in Beijing, to the Secretary of Foreign Affairs, Republic of the Philippines, p. 9 (21 May 2001) (Annex 48).
Memorandum from the Director, Naval Operation Center, Philippine Navy to the Flag Officer in Command, Philippine Navy (11 February 2002) (Annex 49); Memorandum from Vice Admiral, Philippine Navy to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of Philippines (26 March 2002) (Annex 50); Memorandum from the Embassy in the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs, Republic of the Philippines (19 August 2002) (Annex 51); Report from CNS to the Flag Officer in Command, Philippine Navy, File No. N2D-0802-401, (1 September 2002) (Annex 52).
Report from Lt. Commander, Philippine Navy, to Flag Officer in Command, Philippine Navy, No. N2E-F-1104-012 (18 November 2004) (Annex 55).
Letter from the Rear Admiral, Armed Forces of the Philippines, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (Annex 57).
Memorandum from the Secretary of Foreign Affairs, Republic of the Philippines, to the President of the Republic of the Philippines (11 January 2006) (Annex 58).
Memorandum from the Secretary of Foreign Affairs, Republic of the Philippines, to the President of the Republic of the Philippines (11 January 2006) (Annex 58).
On 8 April 2006, a Philippine naval patrol at Scarborough Shoal located Chinese fishing vessels with 'assorted corals and shells' on board that were photographed and then thrown overboard.895
On 10 April 2012, the Philippine naval vessel BRP Gregoria del Pilar, and smaller boats launched from it, conducted a 'Visit, Board, Search and Seizure Operation' on Chinese fishing vessels inside Scarborough Shoal and reported finding 'large amounts of corals and giant clams' inside the first Chinese vessel boarded.896A further eight Chinese vessels were boarded throughout the morning, resulting in the documentation and recovery of 'assorted endangered species' including 'corals and giant clams.'897Later that afternoon, two CMS vessels moved towards the shoal, 'placing themselves between' BRP Gregoria del Pilar and the eight Chinese fishing boats.898
The incident of 10 April 2012 led to what the Philippine Navy described as a 'diplomatic stand-off . . . following the discovery of Chinese fishing vessels . . . harvesting corals and capturing endangered marine species and the subsequent interference by Chinese maritime law enforcement vessels.'899During the remainder of April 2012, the Philippine Navy and Coast Guard conducted air and sea surveillance missions at Scarborough Shoal and reported sighting three CMS vessels alongside a number of Chinese fishing vessels.900
A Chinese Ministry of Foreign Affairs Spokesperson confirmed on 12 April 2012 that:
Report from the Commanding Officer, NAVSOU-2, Philippine Navy, to the Acting Commander, Naval Task Force 21, Philippine Navy, No. NTF21-0406-011/NTF21 OPPLAN (BANTAY AMIANAN) 01-05
(9 April 2006) (Annex 59).
Memorandum from the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77). See also Note Verbale from the Department of Foreign Affairs, Republic of Philippines to the Embassy of the People's Republic of China in Manila, No. 12-0894 (11 April 2012) (Annex 205).
Memorandum from the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77).
Memorandum from the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77).
Memorandum from the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77).
Memorandum from the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77); see also Report from the Commanding Officer, SARV-003, Philippine Coast Guard to the Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard (28 April 2012) (Annex 78).
Relevant Chinese authorities have dispatched administrative vessels rather than military vessels to the Huangyan Island waters to protect the safety and legitimate fishing activities of Chinese fishermen and fishing vessels.901
On 23 April 2012, the Philippine Coast Guard observed two Chinese fishing vessels with stacks of giant clams inside the cargo hold, as well as several Chinese utility boats 'dragging something underwater that caused seawater discoloration.'902
On 26 April 2012, the Philippine Coast Guard reported to the Bureau of Fisheries that it had seen a Chinese fishing boat depart Scarborough Shoal 'loaded with giant clams and other marine products' but noted that '[a]ll we can do is observe[], we cannot apprehend the poachers because they are being protected by two China Marine Surveillance ships.'903
On 2 May 2012, Philippine Bureau of Fisheries personnel described how, during April 2012, Chinese CMS and FLEC vessels were docking alongside and protecting Chinese fishing vessels in Scarborough Shoal while they undertook trawling, fishing, dredging, and towing.904
The Philippines expressed its concerns to ASEAN Member States on 21 May 2012, about the issue of 'Chinese fishermen poaching in the area' noting that 'although these fishermen have already evaded arrests and prosecution for illegal fishing, nevertheless, Chinese Government vessels continue to ply the area in [] much larger numbers now.' 905Simultaneously, the Philippines sent a Note Verbale to the Chinese Embassy in Manila stating that:
the increase in the number of China's vessels in the area imperils the marine diversity in the Shoal and threatens the marine ecosystem in the whole West Philippine Sea. The Philippines has documented the many instances where Chinese fishermen have unlawfully dredged the area and illegally harvested giant clams and corals.906
In response, China recalled that after the incident of 10 April 2012, it had urged the Philippines to withdraw all Philippine ships immediately, and once again urged that the Philippines
Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Liu Weimin's Regular Press Conference (12 April 2012) (Annex 117).
Report from the Commanding Officer, SARV-003, Philippine Coast Guard to the Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard, para. 5.12(b) (28 April 2012) (Annex 78).
Memorandum from the FRPLEU/QRT Chief, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, to the Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (2 May 2012) (Annex 79).
Report from 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 (2 May 2012) (Annex 80).
Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassies of ASEAN Member States in Manila, No. 12-1372 (21 May 2012) (Annex 210).
Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 12-1371 (21 May 2012) (Annex 688).
'immediately pull out' all remaining ships and 'desist from disturbing the operation of Chinese fishing boats and law enforcement activities by China's public service ships.'907
By 2 June 2012, an air reconnaissance mission undertaken by the Philippine Navy reported there were 28 'Chinese fishing vessels trawling alongside each other' at Scarborough Shoal, with flotation devices 'believed intended to obstruct the passage to the shoal' and four Chinese FLEC vessels and five CMS ships were sighted in the area.908
The Philippines has refrained from sending any further vessels to Scarborough Shoal since May 2012 and accordingly its recent monitoring of poaching activities has been limited.909
According to reports of the Armed Forces of the Philippines, two fishing vessels 'believed to be Chinese were monitored fishing using explosives and sodium cyanide 4 NM SW off LT57' in Second Thomas Shoal on 12 February 2012.910
A situation report on Second Thomas Shoal prepared by the Armed Forces of the Philippines on 11 May 2013 contains a photograph depicting a Chinese vessel laden with giant clams and corals.911A few days later, the Armed Forces of the Philippines also reported sighting various Chinese Government vessels such as 'Jianghu V Missile Frigate 562' and China Marine Service vessels, CMS 84 and CMS 167, alongside two Hainan fishing vessels with three dinghies 'believed to be gathering corals and clams and dredging in the shoal.'912
During the Hearing on the Merits, one member of the Tribunal asked the Philippines what 'hard facts' the Philippines had about the harvesting of giant clams.913In addition to referring to
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (12) PG-239 (25 May 2012) (Annex 211).
Memorandum from the Commander, Naval Forces Northern Luzon, Philippine Navy to the Flag Officer in Command, Philippine Navy, No. CNFNL Rad Msg Cite NFCC-0612-001 (2 June 2012) (Annex 83).
Memorial, para. 3.54; Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (12) PG-239 (25 May 2012) (Annex 211).
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2013 (May 2013) (Annex 94).
Memorial, para. 6.64, figure 6.7, extracted from Armed Forces of the Philippines, Ayungin Shoal: Situation Update (11 May 2013) (Annex 95).
Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2013, pp. 3-4 (May 2013) (Annex 94).
Merits Hearing Tr. (Day 3), p. 46.
evidence already in the record,914on 18 December 2015, the Philippines submitted a new BBC article and video footage reporting that '[a]t least a dozen boats' trailing 'plumes of sand and gravel' near Thitu were engaged in harvesting endangered species including hundreds of giant clams.915The BBC showed the fishermen's method, of breaking up coral with their propellers and described the resultant 'complete devastation' of the reefs.916
The Tribunal-appointed expert, Dr. Ferse, also drew the Tribunal's attention to recent reporting on the damaging use of propellers to break up coral and release giant clams for ultimate sale on lucrative curio markets. One report states 'widespread chopping of reefs by fishermen using propellers mounted on small boats in order to poach giant clam shells is visible on recent images of at least 28 reefs in the Spratly and Parcel island groups' and refers to 'abundant evidence that China's navy and coast guard have been aware of the Tanmen fishermen's practice of chopping reefs, and tolerated or condoned it.'917
Noting such reports, the Tribunal conveyed a request from Dr. Ferse to seek clarification from a scientist, Professor John McManus of the University of Miami, United States, whose studies had been cited during the Hearing on the Merits.918Specifically, the Philippines was invited to find out 'what proportion of Professor McManus' estimates on the extent of reef area damaged he would confidently assign to dredging versus clam shell extraction.'919
As a result of this process, Professor McManus provided the Tribunal with a revised version of his unpublished paper920and reported that he had conducted further examinations, interviews, studies of satellite imagery, and an underwater inspection at clam extraction sites near Thitu. He stated:
I confirmed both that the affected areas were very shallow (generally 1-3 m deep) and that the presence of masses of dead broken branching coral, as well as abundant sand on one of the reefs, ruled out dredging as a cause. The thoroughness of the damage to marine life
Merits Hearing Tr. (Day 3), pp. 46-47.
R. Wingfield-Hayes, 'Why are Chinese fishermen destroying coral reefs in the South China Sea?,' BBC (15 December 2015), available at <www.bbc.com/news/magazine-35106631> (Annex 862). The video accompanying this annex refers to the Philippine arrest and prosecution of Chinese fishermen in November 2014 for poaching up to 500 sea turtles in the Spratlys and is available at
<www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/2511_665403/t1214543.shtml>.
R. Wingfield-Hayes, 'Why are Chinese fishermen destroying coral reefs in the South China Sea?,' BBC,
p. 3 (15 December 2015), available at <www.bbc.com/news/magazine-35106631> (Annex 862).
V.R. Lee, 'Satellite Imagery Shows Ecocide in the South China Sea,' The Diplomat (15 January 2016),
available at <thediplomat.com/2016/01/satellite-images-show-ecocide-in-the-south-china-sea/>.
J.W. McManus, 'Offshore Coral Reef Damage, Overfishing and Paths to Peace in the South China Sea,' draft as at 20 September 2015 (Annex 850); Merits Hearing Tr. (Day 4), pp. 29-31, 147-150, 157.
Letter from the Tribunal to the Parties (1 April 2016).
Letter from Professor McManus to the Tribunal (22 April 2016), enclosing McManus Report.
exceeded anything I had previously seen in four decades of investigating coral reef degradation. Interviews with local fishers, officials and military personnel indicated that this highly destructive PRC harvesting practice was now very widespread across the Spratly area.
. . .
The new results indicate that the People's Republic of China (PRC) is responsible for at least 39 km2of damage from shallow dredging and 69 km2of damage from giant clam harvest using propellers to dig up the bottom within the Greater Spratly Islands . . . . Vietnam is responsible for shallow dredging covering approximately 0.26 km2. The overall damage to coral reefs within the Greater Spratly Islands covers at least 124 km2, of which PRC is responsible for 99%.921
The Philippines also filed a short additional report from Professor Carpenter commenting on the new material from Professor McManus. Professor Carpenter stated the 'extraction methods employed by Chinese fishermen, which are countenanced by the Chinese Government, are extremely destructive to reef habitat and represent unprecedented harm to the marine environment.' 922He recalled having already addressed the environmental impact of giant clam extraction,923but at the time he had prepared his reports he had 'not appreciated the scale upon which this is occurring.' 924The Tribunal's experts also observe from satellite imagery the presence of tell-tale arc-shaped scars at Cuarteron, Fiery Cross, Gaven, Hughes and Mischief Reefs, indicating extensive propeller damage on the reef flats by boats likely harvesting giant clams.925
The second aspect of the Philippines' environmental submissions relates to Chinese construction activities on seven features in the Spratly Islands: (a) Cuarteron Reef, (b) Fiery Cross Reef,
(c) Gaven Reef (North), (d) Johnson Reef, (e) Hughes Reef, (f) Subi Reef, and
(g) Mischief Reef.
Documents adduced by the Philippines indicate that in the period from the early 1990s until 2013, China undertook some construction and land reclamation on these features, typically starting with basic aluminium, wooden, or fibreglass structures supported by steel bars with
Letter from Professor McManus to the Tribunal (22 April 2016).
Declaration of Professor K.E. Carpenter, para. 5 (24 April 2016) (hereinafter 'Third Carpenter Report'). 923First Carpenter Report, pp. 14-15; Second Carpenter Report, pp. 29-32; Merits Hearing Tr. (Day 3), pp. 53-54. 924Third Carpenter Report, para. 5.
Ferse Report, pp. 17-21, 31.
cement bases.926Over time, China installed more sophisticated structures, including concrete multi-storey buildings, wharves, helipads, and weather and communications instruments.927The largest of the projects before 2013 was the construction of an artificial island at Fiery Cross Reef of approximately 115 x 80 metres.928Other States in the region, including the Philippines and Viet Nam, undertook similar construction activities during the same period.929Examples of the pre-2013 structures built by China can be seen below at Figures 13 and 14 on page 333.
The massive island-building project that China has embarked on since the end of 2013, however, far exceeds the scale of these earlier construction projects. China has deployed a large fleet of vessels to the seven reefs, primarily using heavy 'cutter-suction dredge' equipment, to create more than 12.8 million square metres of new land in less than three years.930
The 'cutter-suction dredge' method involves a ship-borne drill which is extended from the dredging vessel into the seabed. The drill's rotating teeth act like picks that chisel away at the seabed or reef, breaking apart and extracting the soil, rock, and reef.931This material is then
See, e.g., Armed Forces of the Philippines, Chronological Development of Artificial Structures on Features (Annex 96); Armed Forces of the Philippines, Chronology of Events in the Kalayaan Island Group (2004) (Annex 53).
See Armed Forces of the Philippines, Chronological Development of Artificial Structures on Features
(Annex 96).
Armed Forces of the Philippines, Matrix of Events: Fiery Cross (Kagitingan) Reef (2013) (Annex 88).
See, e.g., Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-053 (12 February 2015) (Annex 683);
Feng & Y. Wang, State Oceanic Administration, p. 1 (10 June 2015), available at
<www.soa.gov.cn/xw/dfdwdt/jgbm_155/201506/t20150610_38318.html> (Annex 872); Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Remarks on the Philippines' Allegation that China's Construction on Maritime Features of the Nansha Islands Violates the DOC (5 May 2015), available at <www.fmprc.gov.cn/mfa_eng/ xwfw_665399/s2510_665401/t1260672.shtml>. See also Asia Maritime Transparency Initiative, 'Sandcastles of Their Own: Vietnamese Expansion in the Spratly Islands,' available at
<amti.csis.org/vietnam-island-building/>; J.B. Miller, 'Tensions Continue to Boil in South China Sea,' Al Jazeera Centre for Studies, (29 May 2016), available at <studies.aljazeera.net/ mritems/Documents/2016/5/29/4b10b189241a43478b9f862f4d1985a6_100.pdf>.
See Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Cuarteron Reef Tracker,' available at <amti.csis.org/cuarteron-reef-tracker/> (Annex 776); Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Fiery Cross Reef Tracker,' available at
<amti.csis.org/fiery-cross-reef-tracker/> (Annex 777); Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Gaven Reef Tracker,' available at <amti.csis.org/gaven-reef-tracker/> (Annex 778); Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Hughes Reef Tracker,' available at <amti.csis.org/hughes-reef-tracker/> (Annex 779); Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Johnson Reef Tracker,' available at <amti.csis.org/johnson-reef-tracker/> (Annex 780); Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Subi Reef Tracker,' available at <amti.csis.org/subi- reef-tracker/> (Annex 781); Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Mischief Reef Tracker,' available at <amti.csis.org/mischief-reef-tracker/> (Annex 782).
Ferse Report, p. 22; Van Oord, Cutter Suction Dredger Castor, Video (2012), available at
<www.vanoord.com/activities/cutter-suction-dredger> (Annex 796).
pumped up through a floating tube pipeline at the stern of the vessel to a reclamation area which can be several kilometres from the dredging location. It is then deposited onto the reef to create dry land, as illustrated in the video by Dutch dredging company Van Oord932and the diagram at Figure 12 below, both shown to the Tribunal during the Hearing on the Merits.933
Figure 12: Dredging Operations
Second Carpenter Report, p. 10, reproduced from 'What China Has Been Building in the South China Sea,' New York Times (27 October 2015)
China's largest suction cutter dredger is the Tian Jing Hao, reportedly capable of extracting 4,500 cubic metres per hour of sand, rock, and other materials from the surrounding seabed.934Photographs of the Tian Jing Hao are shown below, and at work, alongside other dredgers in the process of reclamation works at Mischief reef. China has also used 'trailing suction hopper dredgers' which collect loose materials from the seabed and shoot material onto the reef, as illustrated in Figures 15 to 17 on page 335 below.
The environmental impact of such dredging methods are discussed in the Tribunal's considerations at paragraphs 976 to 983 below. In short, according to the Tribunal's experts, construction and dredging activities can impact reef systems in three ways: (a) direct destruction of reef habitat through burial under sand, gravel and rubble; (b) indirect impacts on benthic organisms such as corals and seagrasses via altered hydrodynamics, increased sedimentation, turbidity, and nutrient enrichment; and (c) indirect impacts on organisms in the water column, such as fishes and larvae, from sediments, chemical and nutrient release, and noise.935
Van Oord, Cutter Suction Dredger Castor, Video (2012), available at <www.vanoord.com/ activities/cutter-suction-dredger> (Annex 796).
Merits Hearing Tr. (Day 2), p. 198.
CCCC Tianjin Dredging Co., Ltd. 'Tian Jing Hao,' available at </en.tjhdj.com/ index.php?mod=product&act=view&cid=46&id=397> (Annex 857); 'Tian Jing Hao,' Dredgepoint.org, available at <www.dredgepoint.org/dredging-database/equipment/tian-jing-hao> (Annex 858); see also Guangdong TV, 'The Magic Dredge Pumping Artifact 'Tianjing Hao', a Great Meritorious Machine in China's Land Reclamation in Nansha,' Video (10 April 2015) (Annex 799).
Ferse Report, p. 22.
Descriptions of the reef environment and construction activities at each of the seven features identified in the Philippines' Submissions No. 11 and 12(b) are set out in the following Sections.
Throughout the course of China's island-building project, in multiple exchanges of diplomatic notes, the Philippines has strongly protested China's activities936and China has rejected 'the groundless protest and accusation' by the Philippines.937China has also pointed out that 'the Philippine side has constructed and kept expanding facilities including airports, harbors, stilt houses and schools on some of the illegally occupied islands and reefs.'938
See Note Verbale from the Embassy of the Republic of the Philippines to the Embassy of the People's Republic of China in Manila, No. 14-1180 (4 April 2014) (Annex 670); Note Verbale from the Embassy of the Republic of the Philippines to the Embassy of the People's Republic of China in Manila, No. 14-2093 (6 June 2014) (Annex 672); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China, No. 14-2276 (23 June 2014) (Annex 673); Note Verbale from the Embassy of the Republic of the Philippines to the Embassy of the People's Republic of China in Manila, No. 14-2307 (24 June 2014) (Annex 674); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 14-2889 (18 August 2014) (Annex 677); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China, No. 14-3504 (10 October 2014) (Annex 679); Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 15-0586 (16 February 2015) (Annex 684).
See Verbatim Text of Response by Deputy Chief of Mission, Embassy of the People's Republic of China in Manila, to Philippine Note Verbale No. 14-1180 dated 04 April 2014 (11 April 2014) (Annex 671); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-195 (30 June 2014) (Annex 675); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-197 (4 July 2014) (Annex 676); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-264 (2 September 2014) (Annex 678); Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-336 (28 October 2014) (Annex 680); Note Verbale from the Ministry of Foreign Affairs, People's Republic of China to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 5 (20 January 2015) (Annex 681); Note Verbale from the Embassy of the People's Republic of China to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-068 (4 March 2015) (Annex 685); Note Verbale from the Department of Boundary and Ocean Affairs, Ministry of Foreign Affairs, People's Republic of China, to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 22 (30 March 2015) (Annex 686); Note Verbale from the Department of Boundary and Ocean Affairs, Ministry of Foreign Affairs, People's Republic of China, to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 23 (30 March 2015) (Annex 687).
Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-053 (12 February 2015) (Annex 683).
Figure 13: Fiery Cross Reef Installation circa 2011
Armed Forces of the Philippines, Matrix of Events: Fiery Cross (Kagitingan) Reef (2013) (Annex 88)
Figure 14: Subi Reef Installation circa 2012
Armed Forces of the Philippines, Matrix of Events: Subi (Zamora) (2013) (Annex 91)
this page intentionally blank
Figure 15: Tian Jing Hao, Cutter-Suction Dredge (Annex 858)
Figure 16: Trailing Suction Hopper Dredge (Annex 792)
Figure 17: Dredgers at work at Mischief Reef (Annex 792)
this page intentionally blank
While some of these communications have concerned the effect of China's construction work on the present proceedings (an issue discussed further in connection with the Philippines' Submissions concerning the aggravation of the dispute, see Chapter VIII below), the Philippines has also emphasised the environmental impact of China's island-building project. For instance, on 13 April 2015, the Philippine Department of Foreign Affairs released the following statement:
China's massive reclamation activities are causing irreversible and widespread damage to the biodiversity and ecological balance of the South China Sea/ West Philippine Sea. We cannot accept China's claim that its activities have not caused damage to the ecological environment of the South China Sea.
China has pursued these activities unilaterally, disregarding peoples in the surrounding states who have depended on the sea for their livelihood for generations. . . .
Moreover, we note that China has tolerated environmentally harmful fishing practices by its nationals at Bajo De Masinloc which breaches its obligations under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).939
A more detailed statement was released on 23 April 2015 by the Philippine Bureau of Fisheries and Aquatic Resources, following a comprehensive study by the University of the Philippines on the damage inflicted to marine biodiversity and economic productivity.940
As detailed below at paragraphs 916 to 924, China maintains that its island-building project 'had gone through science-based evaluation and assessment with equal importance given to construction and protection' and that it had taken 'full account of issues of ecological preservation and fishery protection' and 'followed strict environmental protection standards.'941
Cuarteron Reef is an ellipse-shaped table-like reef extending roughly 5 kilometres west to east, with a shallow reef flat area and no lagoon in the centre.942Fishing surveys from the late 1990s recorded an abundance of reef fish resources there, including sharks, parrotfishes, and
Department of Foreign Affairs, Republic of the Philippines, 'Statement on China's Reclamation Activities and their Impact on the Region's Marine Environment' (13 April 2015) (Annex 608).
Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, 'Press Release: DA-BFAR, National Scientist Condemn the Destruction of Marine Resources in the West Philippine Sea' (23 April 2015) (Annex 609).
Embassy of the People's Republic of China in Canada, 'An Interview on China's Construction Activities on the Nansha Islands and Reefs 2015/05/27,' available at <ca.chineseembassy.org/eng/ zt/cpot/t1267437.htm> (Annex 820).
See the general geographic description of Cuarteron Reef at paragraph 285 above.
groupers.943The Tribunal has found at paragraph 339 above that, in its natural condition, the reef platform at Cuarteron Reef was submerged at high tide, with some rocks remaining exposed. The Tribunal classified Cuarteron Reef as an Article 121(3) rock.
Chinese construction activities reportedly commenced at Cuarteron Reef in 1992 with three small buildings.944By 1997, further buildings, wharves, and communications facilities were observed. 945By 2006, Philippine aerial surveys sighted a three-story building, a concrete platform, and a helipad.946By October 2013, the Philippines military observed more concrete buildings, solar panels, weather and communications instruments, observation towers, a temporary pier, and the presence of a barge for hauling of construction materials.947
More substantial land reclamation began in the spring of 2014. Chinese land reclamation intensified throughout 2015,948with a permanent pier evident from 9 May 2015.949On 26 May 2015, the Chinese Ministry of Transport held a ceremony there to mark the beginning of construction on a 50-metre lighthouse, the main purpose of which, according to the Ministry of Foreign Affairs, is 'to better carry out China's international responsibilities and obligations in terms of maritime search and rescue, disaster prevention and relief, maritime scientific research, meteorological observations, protection of the ecology and environment, navigation safety, and fishery and production services.'950Images from 18 July 2015 showed the presence of large vessels and dredgers at Cuarteron Reef.951
Aerial and satellite photography demonstrate China's construction efforts. Satellite photography from 23 August 2015, which is reproduced as Figures 18 and 19 on page 341 shows an artificial island approximately 200 times larger than the original installation in 2012, which is barely visible in the photograph from January 2012 reproduced on the same page.
Ferse Report, p. 17.
Armed Forces of the Philippines, Matrix of Events: Cuarteron (Calderon) Reef (2013) (Annex 87). 945Armed Forces of the Philippines, Matrix of Events: Cuarteron (Calderon) Reef (2013) (Annex 87). 946Armed Forces of the Philippines, Matrix of Events: Cuarteron (Calderon) Reef (2013) (Annex 87). 947Armed Forces of the Philippines, Matrix of Events: Cuarteron (Calderon) Reef (2013) (Annex 87).
See photographs of reclamation works progress at Compilation of Images of Cuarteron Reef (various sources) (compiled 13 November 2015) (Annex 787); Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, Press Release: DA-BFAR, National Scientist Condemn the Destruction of Marine Resources in the West Philippine Sea (23 April 2015) (Annex 609).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (22 June 2015) (Annex 610).
'China to Construct Two 50m Lighthouses in Huayang Jia [Cuarteron] Reef and Chigua Jiao [Johnson South Reef],' Xinhua (26 May 2015) (Annex 760).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (10 August 2015) (Annex 611).
Calculations presented by the Philippines, estimate that China's construction work as at November 2015 had resulted in the creation of at least 231,000 square metres of new land on Cuarteron Reef. 952The same report indicates that China built a channel approximately 125 metres wide for large vessels to access and berth within a harbour cut out of the reef platform.
Fiery Cross Reef is an 'open spindle-shaped atoll that extends for about 25 km from northeast to southwest, with a width of about 6 km.'953An extensive reef flat on the southwest end of the reef surrounds a small closed lagoon in its centre with a maximum depth of 12 metres. According to the Tribunal's coral reef experts, the present coral reef there developed approximately seven to eight thousand years ago. 954Abundant fisheries were reported in surveys from the late 1990s, and highly biodiverse coral communities were recorded in surveys from 2004 and 2005.955The Tribunal has found at paragraph 343 above that, while Fiery Cross Reef was mostly submerged in its natural state, the atoll was encumbered by a rock that remained exposed at high tide. The Tribunal classified Fiery Cross Reef as an Article 121(3) rock.
Chinese construction activities reportedly commenced at Fiery Cross reef in 1988 with the building first of a small naval post, followed by an oceanographic observation post, pier, and several other buildings.956Subsequent years saw the installation of communications systems and lighthouses, and by 2013 the Philippines Army reported, based on photographic surveys, that 'Fiery Cross Reef is now a complete complex of buildings with significant communications and defense and military features.' 957By March 2013, further buildings, including a greenhouse and powerhouse had also been observed.958
See Center for Strategic & International Studies, Asia Maritime Transparency Initiative, 'Cuarteron Reef Tracker,' available at <amti.csis.org/cuarteron-reef-tracker/> (Annex 776).
Ferse Report, p. 17. See the general geographic description of Fiery Cross Reef at paragraph 286 above.
Ferse Report, p. 17.
Ferse Report, pp. 17-18.
Armed Forces of the Philippines, Matrix of Events: Fiery Cross (Kagitingan) Reef (2013) (Annex 88). 957Armed Forces of the Philippines, Matrix of Events: Fiery Cross (Kagitingan) Reef (2013) (Annex 88). 958Armed Forces of the Philippines, Matrix of Events: Fiery Cross (Kagitingan) Reef (2013) (Annex 88).
By November 2014 there were reports that China was building a runway on Fiery Cross Reef.959Land reclamation intensified and progressed rapidly throughout 2015.960Images from 18 July 2015 showed the presence of at least 18 vessels unloading construction equipment. 961By November 2015, approximately 2,740,000 square metres of land had been created at Fiery Cross Reef, with sand and rock dredged from the seabed covering virtually the entire platform of the southwestern reef flat. 962China's recent activities have created an artificial island approximately 300 times larger than the pre-existing installations, which covered an area of approximately 11,000 square metres. The installations now include a three-kilometre runway, a 630,000-square-metre harbour, multiple cement plants, support buildings, temporary loading piers, communication facilities, defence equipment, two lighthouses, a greenhouse, two helipads and a multi-level administrative facility adjacent to the runway. 963
The massive scale of China's construction efforts on Fiery Cross Reef is apparent in aerial and satellite photography. Satellite photography reproduced as Figures 20 and 21 on page 343 shows the reef's progression from its nearly natural state in January 2012 (with China's original installation just visible at the southern end) to an artificial island complex, complete with a large runway, covering the entire reef platform in October 2015.
Gaven Reef (North) sits on the western end of the largely submerged atoll of Tizard Bank.964Its reef flat extends approximately 1.9 kilometres from north to south and 1.2 kilometres from east to west and has no central lagoon.965According to surveys conducted between 1998 and 2005, fisheries resources at Gaven Reef (North) were lower than at Fiery Cross Reef, but Gaven Reef
See e.g., J. Hardy & S. O'Connor, 'China Building Airstrip Capable Island on Fiery Cross Reef,' IHS Jane's Defence Weekly (20 November 2014) (Annex 720).
See Armed Forces of the Philippines, Aerial Photographs of On-Going Reclamation at Fiery Cross Reef
(2014-2015) (Annex 785).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (10 August 2015) (Annex 611).
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, Fiery Cross Reef Tracker, available at <amti.csis.org/fiery-cross-reef-tracker/> (Annex 777).
J. Perlez, 'China Building Aircraft Runway in Disputed Spratly Islands,' New York Times (16 April 2015) (Annex 756); Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Fiery Cross Reef Tracker,' available at <amti.csis.org/fiery-cross-reef-tracker/> (Annex 777);
J. Hardy and S. O'Connor, 'China Completes Runway on Fiery Cross Reef,' IHS Jane's Defence Weekly
(25 September 2015) (Annex 812).
See the general geographic description of Gaven Reef (North) at paragraph 288 above.
Ferse Report, p. 18.
Figure 18: Cuarteron Reef, 14 January 2012
(Annex 787)
Figure 19: Cuarteron Reef, 23 August 2015
(Annex 787)
this page intentionally blank
Figure 20: Fiery Cross Reef, 17 January 2012
(Annex 788)
Figure 21: Fiery Cross Reef, 19 October 2015
(Annex 788)
this page intentionally blank
(North) was found to have the highest resources for longlining among the seven reefs.966The Tribunal has found at paragraph 366 above that, in its natural state, Gaven Reef (North) included a small sand cay at its north-east end that remained exposed at high tide. The Tribunal classified Gaven Reef (North) as an Article 121(3) rock.
China has reportedly had a presence on Gaven Reef (North) since 1988 and, by 1996, had built an outpost with barracks and two octoganal structures.967A three-storey concrete building with communications equipment was observed by Philippine surveillance in May 2005, and further enhancements were noted in 2011.968
Intense reclamation work began at Gaven Reef (North) in the spring of 2014.969Philippine surveillance in May 2015 at Gaven Reef (North) observed a new helipad, watch post, and wharf expansion.970Within the span of a year, China transformed Gaven Reef (North) from a coral reef to an artificial island measuring approximately 300 by 250 metres, created from 136,000 square metres of materials dredged from the seabed.971
The change in Gaven Reef (North) is readily visible in aerial and satellite photography. China's original installation, as well as the naturally occurring sand cay, are barely visible at the north end of the reef in satellite imagery from January 2012, reproduced as Figure 22 on page 347. In contrast, a large artificial island in the shape of a sideways 'Y' dominates the reef in imagery from November 2015 in Figure 23.
Johnson Reef is a large coral reef platform with a shallow central lagoon located at the south-west end of the Union Bank atoll and measures approximately 4.6 by 2.4 kilometres.972
Ferse Report, p. 18.
Armed Forces of the Philippines, Matrix of Events: Gaven (Burgos) (2013) (Annex 89).
Armed Forces of the Philippines, Matrix of Events: Gaven (Burgos) (2013) (Annex 89).
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Gaven Reef Tracker,' available at <amti.csis.org/gaven-reef-tracker/> (Annex 778); Armed Forces of the Philippines, Aerial Photographs of On-Going Reclamation at Gaven Reef (2014) (Annex 783).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (22 June 2015) (Annex 610); See also Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Gaven Reef Tracker,' available at
<amti.csis.org/gaven-reef-tracker/> (Annex 778).
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Gaven Reef Tracker,' available at <amti.csis.org/gaven-reef-tracker/> (Annex 778).
Ferse Report, p. 18. See also the general geographic description of Johnson Reef at paragraph 287 above.
Its fisheries resources were lower than those recorded at the other reefs, and live coral covered approximately 15 percent of the reef flat.973The Tribunal has found at paragraph 351 above that Johnson Reef has been consistently reported as including rocks that remain exposed at high tide and classified Johnson Reef as an Article 121(3) rock.
China has reportedly had a presence on Johnson Reef since 1988.974By 1992, China had constructed a 'heavily fortified area with an observation tower,' to which was added, by 2006, a three-storey concrete building, communications eqiupment, solar panels, and a helipad.975
China began extensive reclamation activities at Johnson Reef in the spring of 2014. Aerial reconnaissance conducted by the Philippines on 9 May 2015 detected further buildings, solar panels, paved roads, and piers.976A ceremony was held by the Chinese Ministry of Transport for the construction of a lighthouse on Johnson Reef on 26 May 2015.977By November 2015, China had created an artificial island measuring approximately 109,000 square metres, nearly 1,000 times larger than the previous structure.
The change in Johnson Reef is readily visible in aerial and satellite photography. China's original installation cannot even be seen without enlargement in satellite imagery from March 2013, reproduced as Figure 24 on page 347. In contrast, a large artificial island, along with a dredged harbour channel into the centre of the reef is readily visible in imagery from November 2015 in Figure 25.
Hughes Reef also forms part of the rim of the Union Bank atoll and lies to the north-east of Johnson Reef, measuring approximately 2.1 kilometres from north to south, and 2 kilometres from east to west.978Hughes Reef features a natural lagoon 'meandering across its centre and opening to an adjacent deeper lagoon through a narrow, shallow channel on the eastern side of
Ferse Report, pp. 18-19.
Armed Forces of the Philippines, Matrix of Events: Johnson (Mabini) Reef (2013) (Annex 90).
Armed Forces of the Philippines, Matrix of Events: Johnson (Mabini) Reef (2013) (Annex 90).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines, Annex A (22 June 2015) (Annex 610).
'China to Construct Two 50m Lighthouses in Huayang Jia [Cuarteron] Reef and Chigua Jiao [Johnson South Reef],' Xinhua (26 May 2015) (Annex 760).
See also the general geographic description of Hughes Reef at paragraph 287 above.
this page intentionally blank
the reef.'979Fisheries surveys from the late 1990s showed some 'production value' (albeit lower than the other reefs discussed in this Chapter). 980The Tribunal has found at paragraph 358 above that Hughes Reef is a low-tide elevation.
China has reportedly had a presence on Hughes Reef since 1988. By October 2006, China had installed a three-storey concrete building and helipad. 981By February 2013, there were additional power-houses and communications equipment, but the total land area for these structures was still only approximately 380 square metres. 982
China began large-scale reclamation activities at Hughes Reef in the spring of 2014. Aerial reconnaissance by the Philippines on 9 May 2015 detected a permanent pier, a 'massive onshore construction of a 6-storey building,' and large cargo vessels transporting sand sediments for 'newly reclaimed land'. 983By November 2015, China had created an artificial island on Hughes Reef measuring around 75,000 square metres, on which it has built coastal fortifications, defensive towers, and a multi-level facility.984China also enlarged the entrance to the reef to create a 118-metre wide access channel for larger vessels.
The change in Hughes Reef is readily visible in aerial and satellite photography. China's original installation cannot even be seen without enlargement in satellite imagery from February 2010, reproduced as Figure 26 on page 351. In contrast, a large artificial island, along with a dredged harbour channel into the centre of the reef is apparent in imagery from September 2015 in Figure 27.
Subi Reef is coral atoll enclosing a large lagoon that lies to the south-west of Thitu. Subi Reef spans approximately 5.75 kilometres in length and 3.25 kilometres in width and was, originally,
Ferse Report, p. 19.
Ferse Report, p. 19.
Armed Forces of the Philippines, Matrix of Events: Chigua (Kennan) Reef (2013) (Annex 86). Because the Philippines identified McKennan and Hughes Reefs collectively as 'Chigua', a number of materials refer to Hughes Reef as McKennan or discuss the two features together.
Armed Forces of the Philippines, Matrix of Events: Chigua (Kennan) Reef (2013) (Annex 86); Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Hughes Reef Tracker,' available at <amti.csis.org/hughes-reef-tracker/> (Annex 779).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines, Annex B2 (22 June 2015) (Annex 610).
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Hughes Reef Tracker,' available at <amti.csis.org/hughes-reef-tracker/> (Annex 779); Armed Forces of the Philippines, Aerial Photographs of Kennan Reef (2014-2015) (Annex 784).
a closed atoll, with no passages into the lagoon.985According to a 2002 study, Subi Reef was home to a rich variety of over 300 macrobenthic species,986although fisheries surveys from the late 1990s indicate that the reef may already have suffered from overfishing. Coral surveys conducted in 2007 recorded between 64 and 74 species of coral at Subi Reef, with live coral cover highest in the inner reef flat and lagoon areas.987The Tribunal has found at paragraph 373 above that Subi Reef is submerged at high tide in its natural condition and classified it as a low-tide elevation.
According to Philippine military records, China has had a presence on Subi Reef since 1989, and by 1994, 'considerable improvements' there included at least five buildings, a wharf and helipad. By October 2006, a four-storey concrete building was present, and by February 2013, there were more concrete structures, a lighthouse, and communications equipment.988
China began large-scale dredging work at Subi Reef in the summer of 2014,989which intensified in early 2015. Photographs taken on 7 July 2015 showed over 80 ships and a dredger at Subi Reef.990A few weeks later, two cutter suction dredgers, 44 cargo supply vessels, 22 tugboats, and a floating barge crane were seen reclaiming both sides of Subi Reef.991By November 2015, China had created an artificial island measuring approximately 3,950,000 square metres, 'covering the majority of the reef.'992China has built the beginning of what appears to be a three-kilometre runway, a large multi-level facility, reinforced sea walls, towers, and communications facilities. China also created a 230-metre-wide access channel.
The massive scale of China's work on Subi Reef and the transformation of nearly the entire atoll into an artificial island is apparent in aerial and satellite photography and can be seen in satellite imagery from July 2012 and November 2015, reproduced as Figures 28 and 29 on page 353.
See also the general geographic description of Subi Reef at paragraph 289 above.
Ferse Report, p. 20.
Ferse Report, pp. 20-21.
Armed Forces of the Philippines, Matrix of Events: Subi (Zamora) Reef (2013) (Annex 91).
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Subi Reef Tracker,' available at <amti.csis.org/subi-reef-tracker/> (Annex 781); Armed Forces of the Philippines, Aerial Photographs of On-Going Reclamation at Subi Reef (February 2015-March 2015) (Annex 786).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (10 August 2015) (Annex 611).
Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (10 August 2015) (Annex 612).
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Subi Reef Tracker,' available at <amti.csis.org/subi-reef-tracker/> (Annex 781).
Figure 26: Hughes Reef, 7 February 2010
(Annex 791)
Figure 27: Hughes Reef, 22 September 2015
(Annex 791)
this page intentionally blank
Figure 28: Subi Reef, 27 July 2012
(Annex 795)
Figure 29: Subi Reef, 6 November 2015
(Annex 795)
this page intentionally blank
Mischief Reef is a large oval-shaped atoll, approximately 6.5 kilometres wide, with three natural entrances into the lagoon.993The lagoon featured a number of well-developed patch reefs with massive, foliose, and branching corals.994A 2007 survey found 94 species of stony corals there, and live coral cover of 51 percent on the reef slope. Fisheries surveys from the late 1990s described Mischief Reef as having some 'production value,' although the reef appeared to be already under pressure of increased fishing by 2005. 995The Tribunal has found at paragraph 378 above that, in its natural condition, the highest rocks at Mischief Reef covered at high tide. The Tribunal classified Mischief Reef as a low-tide elevation.
China's construction work at Mischief Reef is discussed in greater detail below in connection with the Philippines' Submissions No. 12(a) and 12(c), relating to the lawfulness of constructing artificial islands within the Philippines exclusive economic zone. In brief, Chinese construction activities on Mischief Reef date back at least to January 1995, starting with 'typhoon shelters'. By 1999, Mischief Reef featured multi-storey structures, communications equipment, wharves and a helipad.
Intense land reclamation began at Mischief Reef in January 2015. Progress was rapid, with up to nine dredgers working in the reef simultaneously, according to satellite imagery analysed by the Philippines. By November 2015, the total area of land created by China on Mischief Reef was approximately 5,580,000 square metres.996The southern entrance to Mischief Reef was widened from its original 110 metres to 275 metres.
The massive scale of China's work at Mischief Reef and the transformation of nearly the entire atoll into an artificial island is apparent in satellite imagery, reproduced as Figures 31 and 32 at page 405 below.
The Philippines' submits that China's actions have damaged the diverse and fragile ecosystem of the South China Sea. The Philippines states that 'if unchecked [China's] activities will
See also the general geographic description of Mischief Reef at paragraph 290 above.
Ferse Report, p. 20.
Ferse Report, p. 20.
Asia Maritime Transparency Initiative and Center for Strategic and International Studies, 'Mischief Reef Tracker,' available at <amti.csis.org/mischief-reef-tracker/> (Annex 782).
continue to pose a significant threat to the marine environment of the South China Sea, and of all of the States which border the Sea.'997
The Philippines stresses that China's obligation to protect and preserve the marine environment is 'not dependent on deciding which Party, if any, has sovereignty or sovereign rights or jurisdiction over Scarborough Shoal or Second Thomas Shoal or Mischief Reef' or any of the other features named in the amended version of Submission No. 11.998What matters, according to the Philippines, is rather whether China has 'jurisdiction or control over the harmful fishing practices, the land creation and the construction activities which threaten the marine environment at those locations and elsewhere in the South China Sea.'999
According to the Philippines, China's island-building activities do not fall within the jurisdictional exclusion for 'military activities' under Article 298(1)(b).1000In this respect, the Philippines notes that China did not invoke the military activities exception, and that in any event China has repeatedly characterised its island-building as being for civilian purposes.1001The Philippines also submits that 'mixed-use projects' and situations 'in which a military unit is used to protect other activities' are not covered by the military activities exception.1002
The first component of the Philippines' argument on Submission No. 11 is that China's toleration, encouragement of, and failure to prevent environmentally destructive fishing practices by its nationals violates the 'duty to protect and preserve the marine environment' set forth in Articles 192 and 194 of the Convention.1003The Philippines complains that China has allowed 'its fishermen to harvest coral, giant clams, turtles, sharks and other threatened or endangered species which inhabit the reefs' and 'to use dynamite to kill fish and destroy coral, and to use cyanide to harvest live fish.'1004
Merits Hearing Tr. (Day 3), p. 11.
Merits Hearing Tr. (Day 3), p. 12.
Merits Hearing Tr. (Day 3), p. 12.
1000See, e.g., Written Responses of the Philippines, paras. 5-6 (11 March 2016); Jurisdictional Hearing Tr. (Day 2), pp. 73-93, (Day 3), pp. 48-57; Merits Hearing Tr. (Day 3), pp. 85-90.
1001Jurisdictional Hearing Tr. (Day 2), pp. 74-76; see also Merits Hearing Tr. (Day 3), p. 88.
1002Merits Hearing Tr. (Day 4), p. 104; see also Jurisdictional Hearing Tr. (Day 2), pp. 81-82, (Day 3), p. 57.
1003Memorial, paras. 6.66, 7.35; Merits Hearing Tr. (Day 3), pp. 11-12.
1004Merits Hearing Tr. (Day 3), p. 12.
The Philippines relies principally on the incidents that took place near Scarborough Shoal on 10, 23, and 26 April 2012 (described above at paragraphs 835 to 844), when the Chinese fishing vessels caught with caches of endangered corals and clams were operating under the clear protection of Chinese Government vessels.1005The Philippines nevertheless points to incidents from 1998 to 2006 (described above at paragraphs 827 to 834) as evidence of a continued pattern of environmentally destructive activities by Chinese fishing vessels 'that had been carried on over many years, with China's full knowledge.'1006
The Philippines explains that the extraction of corals is very damaging to the marine environment because it 'reduces the structural complexity of reefs and affects the ability of the reef to support fishes and other animals.'1007Citing the First Carpenter Report, the Philippines notes that it can take decades for similar numbers of corals to replenish.1008
The Philippines observes that harvesting of giant clams, sea turtles, and other endangered species compounds environmental impact and reduces biodiversity.1009Extracting giant clams is especially problematic because, as Professor Carpenter explains, they are important elements of the coral reef structure and also because the method of harvesting them entails crushing surrounding corals.1010
With respect to the use of dynamite, the Philippines explains that using explosives pulverises coral, weakens the structure of the reef, and reduces biodiversity by killing fish and destroying their habitat.1011As for cyanide, which is used to immobilise fish so that they can be caught live for the aquarium and restaurant trades, the Philippines notes that it can kill or injure non-target species and encourage unsustainable catch levels. Because the stunned fishes may be hidden in coral crevices, the usage of cyanide leads to the coral being broken apart by fishermen to retrieve them.1012
1005Memorial, para. 6.50.
1006Memorial, para. 6.55.
1007Memorial, para. 6.56; First Carpenter Report, pp. 5-6.
1008Memorial, para. 6.56; First Carpenter Report, pp. 19-21.
1009Merits Hearing Tr. (Day 3), p. 22.
1010Memorial, para. 6.57; First Carpenter Report, pp. 20-21; Third Carpenter Report, paras. 6-7.
1011Memorial, para. 6.59; Merits Hearing Tr. (Day 3), p. 21; First Carpenter Report, p. 15.
Professor Carpenter explained how these practices impact the highly interconnected and interdependent ecosystem of the South China Sea.1013He confirmed the conclusions in his first report, that:1014
These activities not only reduce the potential sustainable fisheries on the reefs themselves, but also can have detrimental effects on biodiversity and fisheries in the greater Philippine archipelago. . . .
With more marine species per unit area than any other region on earth . . . . the Philippines is seen as the 'Amazon River Basin of the Seas'. . . . Because of the connectivity of the eastern South China Sea to the greater Philippine archipelago through prevailing ocean currents, it is important to ensure the sustainable stewardship of Scarborough Shoal and the Spratly Islands.
. . . [C]oral reef degradation of Scarborough Shoal and the Spratly Islands affects the wider marine ecosystem of the South China Sea. Coral reefs provide ecosystem services to the open ocean around these reefs. . . . Coral reef degradation decreases the capacity of reefs to support [visiting foraging species] and . . . reduces the capacity of the reef for . . . cleaner organisms and can impact the health of marine fishes 1015
The Philippines notes that even before the extensive artificial island-building program commenced in late 2013, China's installations on the features in the Spratlys between the early 1990s and 2013 had 'inevitably harmed the fragile ecosystem there, and resulted in significant damage to the habitats of vulnerable species.'1016
The Philippines notes, however, that such damage is dwarfed by the 'catastrophic' environmental impact of the more recent construction activities,1017stating that 'the loss of seven major reef features to land creation within 1.5 years will have a huge impact on the ecological integrity of not only the Spratly reefs but also of the South China Sea.'1018The Philippines observes that with 'millions of tons of rock and sand' dredged from the seabed and deposited on shallow reefs, 'land creation on this massive scale inevitably destroys that part of the reef.'1019Separate from the destruction of the reef itself, sedimentation caused by the works smothers coral, depriving it of sunlight and impeding its ability to grow.1020
1013Merits Hearing Tr. (Day 3), pp. 53-54; First Carpenter Report, p. 1.
1014Merits Hearing Tr. (Day 3), pp. 48, 54; First Carpenter Report, p. 1.
1015First Carpenter Report, pp. 22-24.
1016Memorial, para. 6.110-6.111; First Carpenter Report, p. 18.
1017Second Carpenter Report, p. 37.
1018Merits Hearing Tr. (Day 3), p. 17; Second Carpenter Report, p. 26.
1019Merits Hearing Tr. (Day 3), p. 18; Second Carpenter Report, p. 24.
1020Second Carpenter Report, pp. 24-25, 38-39; Merits Hearing Tr. (Day 3), p. 18.
The Philippines acknowledges that, for obvious reasons, it was unable to investigate recent conditions at Mischief Reef (and the other features address in Submission No. 11). Nevertheless, the Philippines argues that the Tribunal can use satellite images and scientific reports to 'draw the obvious inferences about the harm that large-scale land creation and construction activities will cause.'1021
At the Hearing on the Merits, Professor Carpenter recalled that 'abrupt man-made alterations to shallow reef features,' such as China's island-building 'directly impacts the functioning of these delicate reefs and alters the topography that has taken thousands of years to form.'1022He summarised the 'very significant damage to this complex coral reef ecosystem' as follows:
The total destruction of a large swathe of reef structures through demolition and burying and landfill is a catastrophic disturbance of the reef. The wholesale removal and destruction of coral reef habitat by the direct destruction and replacement of the shallow portions of the reef ecosystem with man-made structures removes vital components of available reef habitat that have functioned as a single ecosystem for many generations of reef inhabitants. This causes dramatic reductions in populations and local extinction of prominent fishes and invertebrates.
This is of particular concern because there are a number of species listed as threatened with extinction in the South China Sea. . . . The direct ecosystem harm . . . can be multiplied many times over by the wider effects of sediment plumes caused by island building. . . . This sediment cloud covers large areas of the reefs, smothers the coral, and results in widespread destruction of the reef. This in turn dramatically reduces overall primary productivity and topography of the reef, limiting its ability to sustain life.
Recovery from these severe disturbances is uncertain . . . . Here, demolition and burial and landfill has resulted in the total destruction of large swathes of reef structures that destabilise the reef substrate and negatively impact the potential for recovery. Reefs that have been smothered by sedimentation are unlikely to ever recover if unstable sediments remain in place, because reef building requires hard substrate . . . to recruit and thrive.1023
Professor Carpenter then addressed a variety of questions from the Tribunal, including as to the prospects of replenishment, damage caused by sedimentary plumes and turbidity,1024and the reliability of satellite imagery (which he supported by reference to independent studies reaching similar results).1025He reported on his efforts to find Chinese statements about the ecological impact of the construction activities and noted that the only report he identified, a 500-word statement 1026from China's State Oceanic Administration, contains assertions 'contrary to
1021Merits Hearing Tr. (Day 3), p. 19.
1022Merits Hearing Tr. (Day 3), pp. 51-52; see also Second Carpenter Report, p. 38.
1023Merits Hearing Tr. (Day 3), pp. 52-53; see also Second Carpenter Report, pp. 37-39.
1024Merits Hearing Tr. (Day 4), pp. 151-152.
1025Merits Hearing Tr. (Day 4), pp. 147-148.
1026State Oceanic Administration of China, 'Construction Work at Nansha Reefs Will Not Harm Oceanic Ecosystems' (18 June 2015), available at <www.soa.gov.cn/xw/hyyw_90/201506/t20150618
_38598.html> (Annex 821) (hereinafter 'SOA Statement').
everything that we know about coral reef ecology and conservation.'1027This statement (the 'SOA Statement') did not alter his conclusion that the Chinese activity 'constitutes the most rapid nearly permanent loss of coral reef area in human activity.'1028
The Philippines made similar observations about a slightly longer report prepared by SOA scientists (the 'SOA Report'), which the Tribunal drew to the Parties' attention on 5 February 2016.1029According to the Philippines, that report was also 'thoroughly contradicted by the evidence,'1030contained inaccurate statements about timing, flawed predictions about recovery periods, and misplaced analogies with dredging projects in Australia and other countries.1031
In connection with the marine environment, the Philippines alleges China has breached Articles 123, 192, 194, 197, 205, and 206 of the Convention.
The Philippines recalls that the general obligation on States under Article 192 to 'protect and preserve the marine environment''which it considers to form part of customary international law 1032'covers areas within national jurisdiction as well as areas beyond national jurisdiction.1033According to the Philippines, this requires States to take 'active measures' to prevent harm, to 'conserve marine living resources,' and to 'preserve the ecological balance of the oceans as a whole.' 1034
The Philippines notes that the interpretation of Article 192 may be guided by reference to standards in other multilateral environmental instruments, such as CITES and the CBD.1035Likewise those instruments provide content for the obligation under Article 194(5) with respect to measures necessary to protect and preserve 'rare or fragile ecosystems' and 'places that provide habitats for . . . endangered species.'1036
1027Merits Hearing Tr. (Day 4), p. 149.
1028Merits Hearing Tr. (Day 4), p. 150.
1029SOA Report.
1030Written Responses of the Philippines, p. 27 (11 March 2016).
1031Written Responses of the Philippines, pp. 26-35 (11 March 2016).
1032Merits Hearing Tr. (Day 4), pp. 170-174.
1033Merits Hearing Tr. (Day 3), p. 23.
1034Memorial, para. 6.68; Merits Hearing Tr. (Day 3), p. 23.
1035Memorial, paras. 6.71, 6.73, 6.82-6.83; see also Merits Hearing Tr. (Day 3), p. 294, (Day 4), pp. 177-179.
1036Memorial, para. 6.78; see also Merits Hearing Tr. (Day 3), p. 24.
The Philippines notes that States are only required to take appropriate measures and act with due diligence. In this case, however, the Philippines argues that the clear evidence of deliberate and irreparable ecological destruction cannot be squared with China's own laws on environmental protection.1037While China's island-building activities at the seven reefs were unquestionably within the control and jurisdiction of China, the Philippines acknowledges that the unlawful harvesting was carried out by non-government Chinese fishing vessels and that 'China is not responsible for the actions of its fishermen.' China is, however, 'responsible for its own failure to control their illegal and damaging activities.'1038The Philippines argues that China has 'not even attempted to do so' but rather has actively 'supported, protected and facilitate[ed]' their harmful practices.'1039The Philippines also observes that as the flag State, China is obliged to monitor and enforce compliance with its laws by all ships flying its flag.1040
The Philippines highlights five obligations that it considers applicable to States under Part XII of the Convention and relevant in the context of this case:1041
To protect and preserve marine ecosystems: The Philippines observes that coral reefs are a fragile and vitally important part of the marine ecosystem and argues that 'creating artificial islands out of coral reefs is the worst possible way to treat these fundamental ecological building blocks.'1042
To ensure sustainable use of biological resources: The Philippines notes that this reflects a long-recognised duty to conserve living resources.1043Blast fishing and the use of cyanide are wasteful and unsustainable, and violate Articles 192 and 194 (including as marine pollution),1044whether the methods are used in the territorial sea or beyond.1045
To protect and preserve endangered species: The Philippines argues that this is implicit in Article 194(5). According to the Philippines, the harvesting of giant clams in April
1037Merits Hearing Tr. (Day 3), p. 32.
1038Merits Hearing Tr. (Day 3), p. 33.
1039Merits Hearing Tr. (Day 3), p. 32; see also Memorial, para. 6.73.
1040Merits Hearing Tr. (Day 3), p. 33.
1041Merits Hearing Tr. (Day 3), pp. 22-23; see also Jurisdictional Hearing Tr. (Day 2), pp. 96-97.
1042Merits Hearing Tr. (Day 3), pp. 25-26; First Carpenter Report, p. 15; Second Carpenter Report, pp. 26-29.
1043Merits Hearing Tr. (Day 3), p. 27.
1044Memorial, para. 6.76-6.79; Merits Hearing Tr. (Day 3), p. 24.
1045Merits Hearing Tr. (Day 3), p. 28; see also UN Food and Agriculture Organization, Code of Conduct for Responsible Fisheries, para. 8.4.2 (31 October 1995).
2012 under the protection of Chinese authorities constitutes a clear violation of Articles 192 and 194.1046
To apply a precautionary approach in all of these respects: The Philippines considers this obligation applicable to China, but argues this is not necessary to the Tribunal's findings in the current case because the risks to the marine environment are obvious and there can be no uncertainty.1047
To consult and cooperate with the relevant coastal States: The Philippines draws this obligation from Articles 197 and 123 of the Convention, the latter of which takes into account the 'characteristic regional features' which would include the fundamental biological and ecological importance and fragile nature of the coral reef ecosystem of the South China Sea.1048The Philippines submits that there is very little evidence of genuine Chinese cooperation on matters of environmental protection in the South China Sea.1049The Philippines considers China's behaviour towards the Philippines and other States bordering the South China Sea to be aggressive rather than cooperative.1050
Related to the failure to coordinate is, for the Philippines, a failure to assess and communicate.
The Philippines argues that China was 'fairly and squarely' required to carry out an environmental impact assessment ('EIA') within the meaning of Article 206 of the Convention.1051At a minimum, the Philippines argues an EIA should have assessed possible effects on the marine ecosystem of the South China Sea, the coral reefs at issue, the biodiversity and sustainability of living resources there and endangered species.1052The Philippines argues that there is simply no evidence that China carried out such an EIA and no science-based evaluation has been made public or communicated to the Philippines or to 'the competent international organizations' as required by Articles 205 and 206 of the Convention. 1053According to the Philippines, the 500-word SOA Statement was a 'pseudo-evaluation . . . plainly not an EIA.'1054The (slightly longer) SOA Report also fell short, in its view.1055The
1046Merits Hearing Tr. (Day 3), p. 29.
1047Merits Hearing Tr. (Day 3), p. 30.
1048Merits Hearing Tr. (Day 3), pp. 39-45.
1049Merits Hearing Tr. (Day 3), pp. 42-43.
1050Merits Hearing Tr. (Day 3), p. 44.
1051Merits Hearing Tr. (Day 3), pp. 34-36.
1052Merits Hearing Tr. (Day 3), pp. 38-39.
1053Merits Hearing Tr. (Day 4), p. 183; see also Merits Hearing Tr. (Day 3), pp. 38-39.
1054Merits Hearing Tr. (Day 4), p. 185.
Philippines observed that even without appearing in the arbitration, China could easily have made its evaluation available to the Tribunal and added that China's non-appearance should not exempt it from 'the normal burden of proof that attaches to any assertion of fact in inter-State proceedings.'1056
China has not directly stated its position with respect to the allegations as presented in the Philippines' Submissions No. 11 and 12(b). Nevertheless, China's position can be discerned from contemporaneous official statements.
Statements of Chinese officials relating to the incidents between 1998 and 2006 were primarily focused on asserting Chinese sovereignty over Scarborough Shoal and objecting to interference by Philippine authorities. Nevertheless, on a few occasions Chinese officials did address environmental concerns raised by the Philippines in connection with Scarborough Shoal. For example:
According to a record of a meeting in March 2000, a Chinese Foreign Ministry official expressed to the Philippine Ambassador in Beijing her 'particular concern about the practice of dynamite fishing' and that she had 'requested the [Ministry of Agriculture] to do something about the situation.'1057
Following the confiscation of endangered species from Chinese fishing vessels in February 2001, the political counsellor from the Chinese Embassy in Manila reiterated that 'Scarborough Shoal is part of Chinese territory and . . . Chinese fishermen have been fishing in the area since ancient times' but reportedly added that '[w]ith regard to the illegal catching of turtles and corals, . . . . China has a law on this and those who violate the law will be punished.' 1058
1055Written Responses of the Philippines, pp. 10-14 (11 March 2016).
1056Merits Hearing Tr. (Day 4), pp. 183-184.
1057Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-24-2000-S (14 March 2000) (Annex 40).
1058Memorandum from the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (14 February 2001) (Annex 45).
In March 2001, the Asian Department Deputy Director-General of the Chinese Foreign Ministry stated to the representative of the Philippine Embassy in Beijing that 'the Chinese Government is always against illegal fishing.'1059
By contrast, following poaching incidents in 2005 and 2006, China's Vice Foreign Minister did not mention environmental issues and instead expressed dissatisfaction with the Philippine Navy's continued patrol of vessels in Scarborough Shoal, which he considered to have violated the sovereignty and maritime rights of China.1060China's opposition to Philippine interference at Scarborough Shoal persisted through 2012, when in April China confirmed that 'relevant Chinese authorities' had been dispatched to 'protect the safety and legitimate fishing activities of Chinese fishermen and fishing vessels.'1061
Although a Chinese official stated in May 2015 that, as a State party to the CBD and to CITES, 'China will strictly observe provisions of the conventions and honour her obligations in good faith,'1062the Tribunal has seen no evidence that Chinese fishermen involved in poaching of endangered species have been prosecuted under Chinese law. China did not respond to reports forwarded by the Tribunal in December 2015 and February 2016 concerning the widespread removal of giant clams by propeller cutting in and around features under Chinese control.1063
The Tribunal has sought to ascertain China's position by reviewing statements by its Foreign Ministry officials, identifying publicly available scientific reports from China,1064and tasking
1059Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs, Republic of the Philippines, No. ZPE-09-2001-S (17 March 2001) (Annex 47).
1060Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs, Republic of the Philippines, No. ZPE-61-2005-S (28 October 2005) (Annex 56); Letter from Rear Admiral, Armed Forces of the Philippines, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (2006) (Annex 57).
1061Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Liu Weimin's Regular Press Conference (12 April 2012) (Annex 117).
1062Embassy of the People's Republic of China in Canada, An Interview on China's Construction Activities on the Nansha Islands and Reefs 2015/05/27, available at <ca.chineseembassy.org/eng/ zt/cpot/t1267437.htm> (Annex 820).
1063See, e.g., Letter from the Tribunal to the Parties (18 December 2015) (forwarding BBC reports submitted by the Philippines); Letter from the Tribunal to the Parties (1 April 2016) (forwarding article on giant clam harvesting on behalf of the Tribunal's Expert).
1064Letter from the Tribunal to the Parties (5 February 2016).
the independent experts with 'analysing any documents concerning China's assessment of the environmental impact of its activities.'1065
On 9 April 2015, a Chinese Foreign Ministry Spokesperson made the following remarks about Chinese construction activities at Mischief Reef:
China's construction projects on the islands and reefs have gone through scientific assessments and rigorous tests. We put equal emphasis on construction and protection by following a high standard of environmental protection and taking into full consideration the protection of ecological environment and fishing resources. The ecological environment of the South China Sea will not be damaged. We will take further steps in the future to monitor and protect the ecological environment of relevant waters, islands and reefs.1066
Similar remarks were made by the Director-General of the Department of Boundary and Ocean Affairs of China's Foreign Ministry on 27 May 2015.1067
A Chinese Foreign Ministry Spokesperson noted, on 16 June 2015, that the 'main purpose' of the construction activities is to 'meet various civilian demands and better perform China's international obligations and responsibilities in the areas such as . . . ecological environment conservation.'1068
More recently, a Chinese Foreign Ministry Spokesperson provided the following response to a question about whether China's massive land reclamation activities have destroyed coral reefs in the South China Sea 'on a large scale':
The Nansha Islands are China's territory. As 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 in the world.
China's activities on the Nansha Islands strictly follow the principle of conducting green project and building ecological islands and reefs. Based 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. To be specific, China takes the approach of 'natural simulation' which simulates the natural process of sea storms blowing away and moving biological scraps which gradually evolve into oasis on the sea. The impact on the ecological system of coral reefs is limited. Once China's construction activities are completed, ecological
1065Terms of Reference for Expert, Dr. Sebastian Ferse, paras. 3.1.2, 3.1.4 (18 March 2016).
1066Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (9 April 2015) (Annex 624).
1067Embassy of the People's Republic of China in Canada, An Interview on China's Construction Activities on the Nansha Islands and Reefs 2015/05/27, available at <ca.chineseembassy.org/eng/zt/ cpot/t1267437.htm > (Annex 820).
1068Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Lu Kang's Remarks on Issues Relating to China's Construction Activities on the Nansha Islands and Reefs (16 June 2015) (Annex 579).
environmental protection on relevant islands and reefs will be notably enhanced and such action stands the test of time.1069
In light of China's references to 'thorough studies', 'scientific assessments', and 'rigorous tests', the Tribunal has sought further information on environmental studies conducted by China. Thus, during the Hearing on the Merits, the Tribunal asked the Philippines if it was 'aware of any experts from China or elsewhere that have published or articulated views about the environmental impact of China's activities or toleration of activities by others within its control that are contrary or different to those of the Philippines.'1070The Philippines noted 'problems of access to the features occupied by China' and the 'rather expedited timeframe,' and reported that its searches had turned up only 'a brief statement from the State Oceanic Administration.'1071
The SOA is an administrative agency under the Chinese Ministry of Land and Resources, responsible for, among other things, the management of sea area uses, the strategic development of the sea, marine environmental protection, and the development of uninhabited islands.1072The SOA Statement located by the Philippines was entitled 'Construction Work at Nansha Reefs Will Not Harm Oceanic Ecosystems' and included the following:
The land reclamation work at some of the reefs of China's Nansha Islands will be completed in the near future. In order to ascertain the effects of the construction work on oceanic ecosystems, scientific studies have been conducted by a team of experts and researchers from the fields of civil engineering, marine engineering, marine ecology, environment protection, and hydrogeology.
The construction work will abide vigorously by the rules of environment protection. The expansion of the Nansha reefs will abide rigorously by the concept of 'Green
Construction, Eco-Friendly Reefs' in protecting the ecosystems. . . .
The construction work employs the method of nature simulation.
The expansion of the Nansha reefs uses the 'nature simulation' method as its comprehensive technical concept. This method simulates the displacement of bioclasts such as corals and sands during wind storms and high waves; this biological detritus settles on the combined equilibrium points of the shallow reef flats to form stable supratidal zones which then evolve into oceanic oases. Big cutter suction dredgers are used to collect the loose coral fragments and sands in the lagoon and deposit them on bank-inset reefs to form supratidal platform foundation on which certain kinds of facilities can be built. Through the natural functions of the air, the rain, and the sun, paving it with some quick man-made
1069Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hong Lei's Regular Press Conference (6 May 2016), available at <www.fmprc.gov.cn/mfa_eng/ xwfw_665399/s2510_665401/2511_665403/t1361284.shtml>.
1070Letter from the Tribunal to the Parties (27 November 2015) (Annex A, Questions 22 and 23 to the Philippines, Annex C, Question 9 to Professor Carpenter); Merits Hearing Tr. (Day 4), pp. 181-182.
1071Merits Hearing Tr. (Day 4), p. 182.
1072State Council of the People's Republic of China, 'State Oceanic Administration,' available at
<english.gov.cn/state_council/2014/10/06/content_281474992889983.htm>.
material, the land reclamation area will produce the ecological effects by going from desalination, solidification, efflorescence, to a green coral reef ecological environment.
The construction work adopts the measures of ecological protection.
To plan construction projects on bank-inset reefs made of basically dead corals: use a cutter suction dredger to collect loose coral fragments and sands from flat lagoon basins, which do not constitute hospitable environment for corals . . . .
We used a new 'dig, cutter suction, blow, and fill' land reclamation method to integrate digging, transporting, and filling into the construction work; this results in the least ecological impact to the coral reefs.
At the same time that the land reclamation work is in progress, use slope model of concrete to build permanent protective banks and walls around the land area to fend off waves . . . .
The construction embraces the concepts of containment of scope, high efficiency, and sustainability. The duration of construction for every land reclamation project on the reefs will only be about several months.
Conclusion
The construction work on the Nansha reefs stresses ecological protection. Many protection measures were adopted in the stages of planning, design, and construction. Good results have been obtained, and the ecological impact on the coral reefs is partial, temporary, controllable, and recoverable.1073
The Tribunal subsequently identified the SOA Report, dated 10 June 2015, by researchers from the First Ocean Research Institution of the SOA. The authors are not State officials, but work for a government-sponsored organisation. The following are extracts from the SOA Report, which was provided to the Parties for comment:
. . . Due to global seawater warming, ocean acidification, overfishing, development of coastal areas and other reasons, modern coral reefs are degenerating rapidly. . . . The site selection, construction and postconstruction monitoring of the construction at Nansha Reefs are in all respects in compliance with domestic laws and regulations. The construction was undertaken with an emphasis on the protection of ecosystem and fishery resources, carried out after scientific assessment and feasibility studies.
There has been abundant global experience in construction in coral reef areas
. . . Nowadays, coral reefs are utilized mainly for four purposes. First, for national defence and military purposes. [e.g., U.S. and Japan] . . . Second, for coastal tourism development.
. . . . Third, for the construction of port terminals. [e.g., Bahamas, Sudan, Papua New Guinea and Australia]. . . . Of course, rigorous protection standards must be complied with
when carrying out construction in the coral reef areas.
General information on the Coral Reef Ecosystem of Nansha Reefs
Nansha Reefs present typical tropical reef landscape. . . . It is estimated that there are between 127 and 200 species of shallow water reef building corals (hermatypic corals) surrounding the Nansha reefs.
. . . . Research has shown that the South China Sea is not a body of closed waters, therefore nutrients and food organisms can be replenished constantly from surrounding waters . . . . The
1073SOA Statement, pp. 1-2.
severe degeneration of coral reefs worldwide has been exacerbated also by human factors such as overfishing, illegal destruction, excessive tourism development activities . . . .
The amount and number of species of coral reefs in China's South China Sea is also showing a tendency of rapid decrease. . . . Such decrease is mainly due to natural factors, with overfishing being the major human factor.
Eco-protection measures implemented during the construction activities
. . . First, enhance the protection through legislation. . . . Second, actively fulfilling obligations under international conventions including the [CBD]. . . . Third, establish marine natural reserves to protect coral reef ecosystems. . . . Fourth, actively conduct research on the restoration of coral reefs. . . .
. . . . The government has evaluated all construction plans available and has chosen the optimal plan while excluded the ones that would have a bigger impact on marine environment. . . .
As to scientific site selection . . . most of the construction sites selected are located in reef flats with the lowest hermatypic coral coverage or where hermatypic corals are mostly dead.
. . . . China had drawn on the construction technology and environmental protection standards implemented in similar projects. . . . The following specific environmental protection measures were implemented to minimise the impact on coral reefs, including:
minimising the extent of the reclamation and dredging areas;
setting trash collecting screens;
timing construction reasonably, trying to avoid spawn periods of red snapper (mid-April), tuna (peak from June to August) and bonito (from March to August);
monitoring the change of grain size of sand sediments regularly . . . to maintain the water quality of coral reef areas;
reducing construction intensity during the peak of growth of Nansha and Xisha coral reefs . . . . ;
monitoring the growth and health of coral reefs in construction areas and indicators such as species . . . in coral reef areas;
centrally collecting the waste water and solid waste produced from life and construction to be sent for treatment at land facilities of harbours;
using newer vessels to ensure no oil spill happens; listening to weather and marine condition forecasts regularly. . . .
Assessment of the environment impact of Nansha construction activities on coral reef systems
. . . The Nansha coral reefs were rated as 'sub-healthy' before the construction. After assessing the construction's environmental impact on coral reefs, the health of Nansha coral reefs were still rated 'sub-healthy' after the construction was completed. Therefore, the construction activities neither affected the health of . . . nor harmed the coral reef ecosystems. In fact, due to the strong currents and waves . . . the water bodies are updated fairly fast so that little suspended sands are produced from the constructions, leaving the photosynthesis of corals largely unaffected. Because the sites are located in areas where coverage of coral reefs is low, the overall community structure [and] the physical and chemical living environment of coral reefs are not fundamentally changed, therefore their health was not significantly harmed by the construction activities. . . .
As to the impact of reclamation activities on fishery resources . . . the construction avoided the spawning seasons of the main economic species [including tuna], the impact on fishery resources is reduced to the minimum. . . . [The] South China Sea is not a body of closed waters, therefore nutrients and food organisms can be replenished constantly from surrounding waters. . . .
Research has also shown that coral reefs have strong capability of self-restoration. Generally speaking, coral reefs that have been severely damaged by natural factors or human activities can be restored initially in 5-10 years provided that effective measures are taken, and complex and complete ecosystems can be fully restored in 50-100 years.
. . . [T]he conclusion can be reached that the construction activities did not adversely affect the regional coral reef ecosystems. . . . The assessments are objective. Even so, after the construction is completed, it is important to enhance monitoring of regional ecosystems and implement measures including release, coral restoration and transplantation in order to better protect the coral reefs.1074
On 5 February 2016, the Tribunal referred the Parties to the above SOA Statement and SOA Report, as well as to a number of general SOA 'Communiqu''s on Marine Environment' and technical guidelines for assessing marine ecosystem health. At the same time, the Tribunal directly invited the Chinese Government 'to indicate whether it has conducted an environmental impact study per Article 206 of the Convention and, if so, to provide the Tribunal with a copy.' China did not respond to the Tribunal's request.
The Tribunal recalls that in its original form, Submission No. 11 sought a declaration that 'China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal and Second Thomas Shoal.'1075
In its Award on Jurisdiction, the Tribunal held that Submission No. 11 reflects a dispute concerning the protection and preservation of the marine environment at relevant features within the South China Sea and the application of Articles 192 and 194 of the Convention.1076The Tribunal found that this is 'not a dispute concerning sovereignty or maritime boundary delimitation, nor is it barred from the Tribunal's consideration by any requirement of Section 1 of Part XV.'1077
1074SOA Report, p. 3.
1075Memorial, p. 272.
1076Award on Jurisdiction, para. 408; see also Award on Jurisdiction, para. 173.
1077Award on Jurisdiction, para. 408.
The Tribunal noted that because the environmental obligations in Part XII apply to States irrespective of where the alleged harmful activities took place, its jurisdiction is not dependent on the question of sovereignty over any particular feature, on a prior determination of the status of any maritime feature, on the existence of an entitlement by China or the Philippines to an exclusive economic zone in the area, or on the prior delimitation of any overlapping entitlements.1078
The Tribunal likewise held that the other possible exceptions in Article 298 of the Convention posed no bar to its jurisdiction over Submission No. 11.1079The harmful fishing and harvesting practices complained of in the Submission as originally formulated have no connection with 'military activities'. To the extent the incidents could be characterised as related to 'law enforcement activities', the Tribunal pointed out that the law enforcement activities exception in Article 298(1)(b) would not in any event apply.
First, the law enforcement activities exception concerns a coastal State's rights in its exclusive economic zone and does not apply to incidents in a territorial sea. Thus, the exception could not be relevant to incidents at Scarborough Shoal.1080
Second, although the status of Second Thomas Shoal and the question of whether the feature was potentially within the entitlement of either China or the Philippines to an exclusive economic zone were undetermined at the time of the Award on Jurisdiction, the Tribunal noted that Article 297(1)(c) expressly reaffirms the availability of compulsory dispute settlement for disputes concerning 'alleged violations of international rules and standards for the protection and preservation of the marine environment.'1081The Tribunal's decision in this Award that Second Thomas Shoal is a low-tide elevation located in an area that can only form part of the exclusive economic zone of the Philippines (see paragraph 646 to 647 above) further confirms
1078Award on Jurisdiction, para. 408.
1079Award on Jurisdiction, para. 408. Article 298, which allows States the option of excluding from compulsory dispute settlement certain categories of disputes, including '(1)(b) disputes concerning military activities, including military activities by government vessels and aircraft engaged in non- commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or tribunal under article 297, paragraph 2 or 3.' Article 297(2) concerns marine scientific research and Article 297(3) concerns fisheries. Cases under Article 297(1) are therefore not excluded. Article 297(1)(c) includes cases 'when it is alleged that a coastal State has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment which are applicable to the coastal State and which have been established by this Convention or through a competent international organization or diplomatic conference in accordance with this Convention.'
1080The Tribunal has found Scarborough Shoal to be an Article 121(3) rock, capable of generating a territorial sea, but not an exclusive economic zone. See paragraphs 554 to 556 above.
1081Convention, art. 297(1)(c).
that the law enforcement exception in Article 298(1)(b) has no application in these circumstances.
Accordingly, the Tribunal found that it has jurisdiction over the dispute relating to Submission No. 11 in its original form.
In its Award on Jurisdiction, the Tribunal noted that Submission No. 12 reflects a dispute concerning China's activities on Mischief Reef and the effects of those activities on the marine environment. The Tribunal noted that this dispute does not concern sovereignty or maritime boundary delimitation, nor is it barred from the Tribunal's consideration by any requirement of Section 1 of Part XV.1082However, the Tribunal deferred taking a final decision on jurisdiction over Submission No. 12, in light of factors discussed below at paragraphs 1024 to 1028. The only such factor of relevance to paragraph (b) of Submission No. 12 (relating to the marine environment) was the possible application of the exception in Article 298(1)(b) of the Convention, which excludes disputes concerning military activities from the Tribunal's jurisdiction. The Tribunal considered it preferable to assess the specifics of China's activities on Mischief Reef, and whether such activities are military in nature, in conjunction with the merits.1083
As already noted, the Tribunal subsequently granted the Philippines leave to amend Submission No. 11 to encompass the marine environment at Cuarteron Reef, Fiery Cross Reef, Johnson Reef, Hughes Reef, Gaven Reef (North), and Subi Reef, in light of the evidence relating to the larger-scale island-building activities at those features which had not been available at the time of the Memorial.1084The Tribunal recognised that the amendments were related to, or incidental to the Submissions originally made by the Philippines, and did not involve the introduction of a new dispute between the Parties.1085Indeed, the Philippines had already presented evidence of China's gradually increasing construction activities at all seven reefs,1086and had already set forth its concerns over the resultant degradation of the marine environment.1087
1082Award on Jurisdiction, para. 409.
1083Award on Jurisdiction, para. 409.
1084Merits Hearing Tr. (Day 4), p. 169; Letter from the Tribunal to the Parties (16 December 2015); see also
Letter from the Tribunal to the Parties (1 December 2015) (inviting China's comments).
1085Letter from the Tribunal to the Parties (16 December 2015).
1086See, e.g., Armed Forces of the Philippines, Chronology of Events in the Kalayaan Island Group (2004) (Annex 53); Armed Forces of the Philippines, Chronological Development of Artificial Structures on
It thus remains for the Tribunal to decide whether its jurisdiction over the Philippines' Submissions No. 11 and 12(b) is constrained by the military activities exception in Article 298(1)(b) of the Convention.
In determining whether Chinese land reclamation activities at the seven reefs are military in nature, the Tribunal takes note of China's repeated statements that its installations and island-building activities are intended to fulfil civilian purposes.
On 9 September 2014, a Chinese Foreign Ministry Spokesperson stated that 'the construction work China is undertaking on relevant islands is mainly for the purpose of improving the working and living conditions of people stationed on these islands.'1088The same spokesperson elaborated, in April 2015, that the 'main purposes' of the 'maintenance and construction work' on the Spratly islands and reefs were:
optimizing their functions, improving the living and working conditions of personnel stationed there, better safeguarding territorial sovereignty and maritime rights and interests, as well as better performing China's international responsibility and obligation in maritime search and rescue, disaster prevention and mitigation, marine science and research, meteorological observation, environmental protection, navigation safety, fishery production service and other areas.1089
These same civilian purposes were articulated on 12 June 2015, by the Head of China's delegation to the Meeting of States Parties to the UN Convention on the Law of the Sea.1090As noted below with respect to Submission No. 12, China's President Xi Jinping stated in September 2015 that '[r]elevant construction activities that China [is] undertaking in the island of South -- Nansha Islands do not target or impact any country, and China does not intend to pursue militarization.'1091
Features (Annex 96); 'Matrix of Events' documents compiled by the Armed Forces of the Philippines for Cuarteron, Gaven, Fiery Cross, Johnson, and Subi Reefs (Annexes 86-91); Memorial, paras. 5.68-5.75.
1087See Memorial, paras. 6.108-6.111; see also First Carpenter Report, pp.16-18.
1088Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (9 September 2014) (Annex 619).
1089Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (9 April 2015) (Annex 624); see also Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Lu Kang's Remarks on Issues Relating to China's Construction Activities on the Nansha Islands and Reefs (16 June 2015) (Annex 579).
1090Permanent Mission of the People's Republic of China to the United Nations, Statement by
H.E. Ambassador Wang Min, Head of the Chinese Delegation at the 25th Meeting of States Parties to the UN Convention on the Law of the Sea (12 June 2014) (Annex 624).
1091See 'China not to pursue militarization of Nansha Islands in South China Sea: Xi,' Xinhua (25 September 2015), available at <news.xinhuanet.com/english/2015-09/26/c_134660930.htm>; United States, The White House, Office of the Press Secretary, 'Press Release: Remarks by President Obama and President Xi of the People's Republic of China in Joint Press Conference' (25 September 2015) (Annex 664).
The Tribunal will not deem activities to be military in nature when China itself has consistently and officially resisted such classifications and affirmed the opposite at the highest levels. Accordingly, the Tribunal accepts China's repeatedly affirmed position that civilian use compromises the primary (if not the only) motivation underlying the extensive construction activities on the seven reefs in the Spratly Islands. As civilian activity, the Tribunal notes that China's conduct falls outside the scope of Article 298(1)(b) and concludes that it has jurisdiction to consider the Philippines' Submissions No. 11 and 12(b).
The protection and preservation of the marine environment form a prominent component of the legal regime of the Convention, the importance of which is recognised in the Preamble in the following terms:
Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment . . .
The substantive provisions relevant to the marine environment comprise their own Part XII of the Convention. At the outset, the Tribunal notes that the obligations in Part XII apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it.1092Accordingly, questions of sovereignty are irrelevant to the application of Part XII of the Convention. The Tribunal's findings in this Chapter have no bearing upon, and are not in any way dependent upon, which State is sovereign over features in the South China Sea.
Article 192 of the Convention provides that 'States have the obligation to protect and preserve the marine environment.' Although phrased in general terms, the Tribunal considers it well established that Article 192 does impose a duty on States Parties,1093the content of which is informed by the other provisions of Part XII and other applicable rules of international law. This 'general obligation' extends both to 'protection' of the marine environment from future damage and 'preservation' in the sense of maintaining or improving its present condition. Article 192 thus entails the positive obligation to take active measures to protect and preserve
1092See, e.g. Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 120.
1093M/V 'Louisa' (Saint Vincent and the Grenadines v. Kingdom of Spain), Provisional Measures, Order of 23 December 2010, ITLOS Reports 2008-2010, p. 58 at p. 70, para. 76; Dispute Concerning Delimitation of the Maritime Boundary Between Ghana and C''te D'Ivoire in the Atlantic Ocean, Provisional Measures, Order of 25 April 2015, ITLOS Reports 2015, at para. 69.
the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment. The corpus of international law relating to the environment, which informs the content of the general obligation in Article 192, requires that States 'ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control.'1094Thus States have a positive ''duty to prevent, or at least mitigate' significant harm to the environment when pursuing large-scale construction activities.'1095The Tribunal considers this duty informs the scope of the general obligation in Article 192.
The content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII, including Article 194, as well as by reference to specific obligations set out in other international agreements, as envisaged in Article 237 of the Convention.1096
Article 194 concerns 'pollution of the marine environment,' a term which is defined in Article 1 of the Convention to mean 'the introduction by man, directly or indirectly, of substances . . . into the marine environment . . . which results or is likely to result in such deleterious effects as harm to living resources and marine life . . . [and] hindrance to . . . legitimate uses of the sea . . . .' The 'measures to prevent, reduce and control pollution of the marine environment' are set out in Article 194:
Article 194
Measures to prevent, reduce and control pollution of the marine environment
1. States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.
1094Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226 at pp. 240-242, para. 29.
1095Indus Waters Kishenganga Arbitration (Pakistan v. India), Partial Award, 18 February 2013, PCA Award Series (2014), para. 451; quoting Arbitration Regarding the Iron Rhine ('IJzeren Rijn') Railway between the Kingdom of Belgium and the Kingdom of the Netherlands, Award of 24 May 2005, PCA Award Series (2007), RIAA Vol. XXVII p. 35 at pp. 66-67, para. 59.
1096Article 237, entitled 'Obligations under other conventions on the protection and preservation of the marine environment,' provides as follows:
The provisions of this Part are without prejudice to the specific obligations assumed by States under special conventions and agreements concluded previously which relate to the protection and preservation of the marine environment and to agreements which may be concluded in furtherance of the general principles set forth in this Convention.
Specific obligations assumed by States under special conventions with respect to the protection and preservation of the marine environment, should be carried out in a manner consistent with the general principles and objectives of this Convention.
States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention.
The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent:
the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;
pollution from vessels . . .
. . .
pollution from other installations and devices operating in the marine environment, in particular measures for . . . regulating the design, construction, equipment, operation and manning of such installations or devices.
. . .
5. The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.
Articles 192 and 194 set forth obligations not only in relation to activities directly taken by States and their organs, but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment. The Fisheries Advisory Opinion of the International Tribunal for the Law of the Sea sheds light on the obligation of a flag State to ensure its fishing vessels not be involved in activities which will undermine a flag State's responsibilities under the Convention in respect of the conservation of living resources and the obligation to protect and preserve the marine environment.1097Drawing on decisions of the International Court of Justice in Pulp Mills on the River Uruguay1098and the Seabed Disputes Chamber advisory opinion,1099the International Tribunal for the Law of the Sea noted that the obligation to 'ensure' is an obligation of conduct. It requires 'due diligence' in the sense of a flag State not only adopting appropriate rules and measures, but also a 'certain level of
1097Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, paras. 118-136. See also Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 295, para. 70; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14, at p. 79, para. 197.
1098Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14.
1099Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area (Request for Advisory Opinion submitted to the Seabed Disputes Chamber), Advisory Opinion of 1 February 2011, ITLOS Reports 2011.
vigilance in their enforcement and the exercise of administrative control.'1100Upon receipt from another State of reports of non-compliance, the flag State 'is then under an obligation to investigate the matter and, if appropriate, take any action necessary to remedy the situation as well as inform the reporting State of that action.'1101
The fifth paragraph of Article 194 covers all measures under Part XII of the Convention (whether taken by States or those acting under their jurisdiction and control) that are necessary to protect and preserve 'rare or fragile ecosystems' as well as the habitats of endangered species. As observed by the tribunal in Chagos Marine Protected Area, the phrasing of Article 194(5) confirms that Part XII is 'not limited to measures aimed strictly at controlling marine pollution,' which while 'certainly an important aspect of environmental protection . . . is by no means the only one.' 1102An 'ecosystem' is not defined in the Convention, but internationally accepted definitions include that in Article 2 of the CBD, which defines ecosystem to mean 'a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.'1103The Tribunal has no doubt from the scientific evidence before it that the marine environments where the allegedly harmful activities took place in the present dispute constitute 'rare or fragile ecosystems.'1104They are also the habitats of 'depleted, threatened or endangered species,' including the giant clam, the hawksbill turtle and certain species of coral and fish.1105
Part XII of the Convention also includes Article 197 on cooperation, which requires States to cooperate on a global or regional basis, 'directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.' In its provisional measures order in MOX Plant, the International Tribunal for the Law of the Sea emphasised that 'the duty to cooperate is a fundamental principle in the prevention of pollution of the marine
1100Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 131; quoting Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14, at p. 79, para. 197.
1101Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 139.
1102Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award, 18 March 2015, paras. 320, 538.
1103CBD, art. 2.
1104See Ferse Report, p. 7; First Carpenter Report, p.22; Second Carpenter Report, p.8; McManus Report,
17; Mora Report, p. 1; see also SOA Report (Annex 872).
1105First Carpenter Report, pp. 1, 5-7, pp.10-11; Ferse Report, pp. 10-11.
environment under Part XII of the Convention and general international law.'1106Related to regional cooperation is the provision in Article 123 of the Convention, which covers semi- enclosed seas, such as the South China Sea:
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:
to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;
to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;
to coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area;
to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article.
The final provisions of Part XII relevant to the Philippines' Submissions concern monitoring and environmental assessment. Article 204 requires States to endeavour as far as practicable to 'observe, measure, evaluate and analyse . . . the risks or effects of pollution on the marine environment' and to keep under surveillance the effects of any activities which they 'permit or in which they engage' in order to determine whether they are likely to pollute the marine environment. Article 205 requires State to publish reports of the results from such monitoring to the competent international organisations, which should make them available to all States. Finally, Article 206 relates to environmental impact assessments:
Article 206
Assessment of potential effects of activities
When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.
Article 206 ensures that planned activities with potentially damaging effects may be effectively controlled and that other States are kept informed of their potential risks. In respect of Article 206, the International Tribunal for the Law of the Sea emphasised that 'the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law.' 1107As such, Article 206 has been
1106MOX Plant (Ireland v. United Kingdom) Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, para. 82.
1107Responsibilities and Obligations of States with respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10 at p. 50, para. 145.
described as an 'essential part of a comprehensive environmental management system' and as a 'particular application of the obligation on states, enunciated in Article 194(2).'1108While the terms 'reasonable' and 'as far as practicable' contain an element of discretion for the State concerned, the obligation to communicate reports of the results of the assessments is absolute.
In applying the provisions of Part XII to the Philippines' Submissions No. 11 and 12(b), the Tribunal will consider first the actions of harmful harvesting and fishing by Chinese fishermen, and second the construction activities by China on the seven coral reefs.
Based on contemporaneous reports of naval, coastguard and fisheries authorities, diplomatic exchanges and photographic evidence presented in the record, the Tribunal is satisfied that Chinese fishing vessels have been involved in harvesting of threatened or endangered species on the following occasions at or in the waters of Scarborough Shoal:
In January and March 1998, Chinese fishermen were found in possession of corals and marine turtles.1109
In April 2000, Chinese fishing vessels were found with four tons of corals on board.1110
In January 2001, Chinese fishing vessels were found with endangered sea turtles, sharks, and corals.1111
1108S. Rosenne & A. Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV, para. 206.6(b) (M. Nordquist, gen. ed., 2002).
1109Memorandum from the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs of the Republic of the Philippines (23 March 1998) (Annex 29); People of the Philippines v. Shin Ye Fen, et al., Criminal Case No. RTC 2357-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 30); People of the Philippines v. Wuh Tsu Kai, et al, Criminal Case No. RTC 2362-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 31); People of the Philippines v. Zin Dao Guo, et al, Criminal Case No. RTC 2363-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 32).
1110Situation Report from Colonel, Philippine Navy, to Chief of Staff, Armed Forces of the Philippines, No. 004-18074 (18 April 2000) (Annex 41).
1111Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-06-2001-S (13 February 2001) (Annex 43), Memorandum from the Acting Secretary of Foreign Affairs of the Republic of the Philippines to the President of the Republic of the Philippines (5 February 2001) (Annex 44).
Tons of corals as well as clams were confiscated from Chinese fishing vessels in February, March and September of 2002.1112
In October 2004, Chinese fishing vessels loaded and photographed with giant clams were intercepted by the Philippine Navy.1113
In December 2005, four Chinese fishing vessels were found and photographed in possession of 'assorted corals and live clamshells weighing about 16 tons.'1114
In April 2006, Chinese fishing vessels were found and photographed with corals.1115
On 10 April 2012, large amounts of corals and giant claims were found and photographed on board Chinese fishing vessels that were later joined by Chinese Government vessels.1116
On 23 and 26 April 2012, at least two Chinese fishing vessels, operating under the protection of CMS vessels were observed to have giant clams inside the cargo hold.1117
In addition to the above events at Scarborough Shoal, the Tribunal has reviewed reports of an incident in the vicinity of Second Thomas Shoal in May 2013, in which fishing vessels from Hainan, accompanied by a Chinese naval ship and two CMS ships, were sighted by Philippine
1112Memorandum from the Director, Naval Operation Center, Philippine Navy, to The Flag Officer in Command, Philippine Navy (11 February 2002) (Annex 49), Letter from Vice Admiral, Philippine Navy, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (26 March 2002) (Annex 50), Report from CNS to Flag Officer in Command, Philippine Navy, File No. N2D-0802-401 (1 September 2002) (Annex 52).
1113Report from Lt. Commander, Philippine Navy, to Flag Officer in Command, Philippine Navy, No. N2E-F-1104-012 (18 November 2004) (Annex 55).
1114Letter from Rear Admiral, Armed Forces of the Philippines, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (2006) (Annex 57).
1115Report from the Commanding Officer, NAVSOU-2, Philippine Navy, to the Acting Commander, Naval Task Force 21, Philippine Navy, No. NTF21-0406-011/NTF21 OPLAN (BANTAY AMIANAN) 01-05
(9 April 2006) (Annex 59).
1116Memorandum from Colonel, Philippine Navy, to Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77).
1117Memorandum from Colonel, Philippine Navy, to Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77), Report from the Commanding Officer, SARV-003, Philippine Coast Guard, to Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard (28 April 2012) (Annex 78).
armed forces and 'believed to be gathering corals and clams and dredging in the shoal.'1118
Photographs from the incident show the harvesting of giant claims.1119
Recent evidence also indicates the large-scale harvest of endangered hawksbill sea turtles by Chinese fishermen, whose arrest by Philippine authorities led to protests by China.1120
Finally, in addition to the occurrence of the above events recounted in the Philippines' Memorial, the Tribunal is satisfied based on its review of satellite imagery, photographic and video evidence, contemporaneous press reports, scientific studies and the materials from Professor McManus, that in recent years, Chinese fishing vessels have been engaged in widespread harvesting of giant clams through the use of boat propellers to break through the coral substrate in search of buried clam shells.
The Tribunal turns now to the harmful impact of the above-described activities and then addresses the extent to which China may be held responsible for breach of the Convention in connection with those activities.
Many of the above-listed incidents involved the harvesting of coral species. The Ferse Report describes the impact on the marine environment from the harvesting of coral as follows:
stony corals are frequently harvested as construction material, or for sale in the curio trade,
e.g. to tourists. The repeated, targeted removal of coral colonies can modify the community structure ' branching species are preferably targeted for the curio trade, and their removal leads to an overall loss of structural complexity. Decreased live coral cover and structural complexity severely affects the reef fish community, as a large proportion of the species on
the reef utilise live corals at some point in their life history.1121
All of the sea turtles (Cheloniidae) found on board Chinese fishing vessels are listed under Appendix I to the CITES Convention as species threatened with extinction and subject to the strictest level of international controls on trade. 1122CITES is the subject of nearly universal adherence, including by the Philippines and China, and in the Tribunal's view forms part of the general corpus of international law that informs the content of Article 192 and 194(5) of the
1118Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
1119Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94). See photographs at Armed Forces of the Philippines, Ayungin Shoal: Situation Update (11 May 2013) (Annex 95).
1120R. Wingfield-Hayes, 'Why are Chinese fishermen destroying coral reefs in the South China Sea?,' BBC (15 December 2015), available at <www.bbc.com/news/magazine-35106631> (Annex 862); Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (25 November 2014), available at <www.fmprc.gov.cn/mfa_eng/xwfw_665399/ s2510_665401/2511_665403/t1214543.shtml>.
1121Ferse Report, p. 10 and coral studies cited therein.
1122CITES, Appendix I, available at <cites.org/eng/app/appendices.php>.
Convention. '[T]he conservation of the living resources of the sea is an element in the protection and preservation of the marine environment,'1123and the Tribunal considers that the general obligation to 'protect and preserve the marine environment' in Article 192 includes a due diligence obligation to prevent the harvesting of species that are recognised internationally as being at risk of extinction and requiring international protection.
The Tribunal is particularly troubled by the evidence with respect to giant clams, tons of which were harvested by Chinese fishing vessels from Scarborough Shoal, and in recent years, elsewhere in the Spratly Islands. Giant clams (Tridacnidae) and many of the corals found in the Spratly Islands are listed in Appendix II to CITES and are unequivocally threatened, even if they are not subject to the same level of international controls as Appendix I species. Equally important, however, giant clams play a significant role in the overall growth and maintenance of the reef structure.1124The Ferse Report describes the effects of harvesting them as follows:
Giant clams have historically been harvested widely throughout Southeast Asia and beyond, both for their meat and their shells. The larger species can reach considerable sizes (the largest species, Tridacna gigas, can reach almost 1.5m in size and a weight of over 300kg), but they grow slowly. Thus, large individuals have become rare on most reefs. As their shells are highly coveted, collectors have begun to target fossil shells buried in the reef flat (the shallow, extensive habitat on top of reefs). Excavation is highly destructive, with early reports showing a drop in coral cover by 95% from its original value. More recently, fishermen in the South China Sea are reported to utilise the propellers of their boats to excavate shells from reef flats in the Spratly Islands on an industrial scale, leading to near- complete destruction of the affected reef areas.1125
The Tribunal recalls in particular the very recent examinations conducted by Professor McManus, which led him to estimate that China is responsible for almost 70 square kilometres of coral reef damage from giant clam harvesting using propellers,1126a practice he described as more thoroughly damaging to marine life than anything he had seen in four decades of investigating coral reef degradation.1127
The Tribunal has noted that it considers the duty to prevent the harvest of endangered species follows from Article 192, read against the background of other applicable international law. The Tribunal considers that this general obligation is given particular shape in the context of fragile ecosystems by Article 194(5). Read in this context, the Tribunal thus considers that Article 192 imposes a due diligence obligation to take those measures 'necessary to protect and
1123Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 280, at p. 295, para. 70.
1124Merits Hearing Tr. (Day 4), pp. 144-145.
1125Ferse Report, p. 10, and studies and reports cited therein.
1126McManus Report, p. 66.
1127Letter from Professor McManus to the Tribunal (22 April 2016).
preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.' Therefore, in addition to preventing the direct harvesting of species recognised internationally as being threatened with extinction, Article 192 extends to the prevention of harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat.
The Tribunal thus considers the harvesting of sea turtles, species threatened with extinction, to constitute a harm to the marine environment as such. The Tribunal further has no doubt that the harvesting of corals and giant clams from the waters surrounding Scarborough Shoal and features in the Spratly Islands, on the scale that appears in the record before it, has a harmful impact on the fragile marine environment. The Tribunal therefore considers that a failure to take measures to prevent these practices would constitute a breach of Articles 192 and 194(5) of the Convention, and turns now to consider China's responsibility for such breaches.
The vessels involved in the incidents described above were all Chinese flag vessels, under the jurisdiction and control of China. In the Tribunal's view, where a State is aware that vessels flying its flag are engaged in the harvest of species recognised internationally as being threatened with extinction or are inflicting significant damage on rare or fragile ecosystems or the habitat of depleted, threatened, or endangered species, its obligations under the Convention include a duty to adopt rules and measures to prevent such acts and to maintain a level of vigilance in enforcing those rules and measures.
On the question of awareness, it is clear from the record that the Philippines had brought its concerns about poaching of endangered species to the attention of China as early as January 2000, when it stated to the Chinese Embassy that unlawful harvesting 'disturbed the tranquillity of the ecosystem and habitat of important species of marine life and . . . caused irreparable damage to the marine environment of the area.'1128The Philippines also recalled that the gathering and trade of corals violates the provisions of three international conventions to which China is a signatory, including the CBD and CITES. In 2001, China assured the Philippines that it 'attaches great importance to environmental protection and violators are dealt with in accordance with Chinese laws and regulations.'1129After finding 16 tons of clams and corals
1128Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 2000100 (14 January 2000) (Annex 186).
1129Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-06-2001-S (13 February 2001) (Annex 43).
aboard Chinese fishing vessels in 2005, the Philippines expressed its grave concern to China over the 'rampant trading of endangered corals and marine species in the South China Sea.'1130
China was therefore, certainly by 2005, on notice of poaching practices of Chinese fishing vessels in Scarborough Shoal and aware of the Philippines' concerns. The poaching, however, has persisted, despite (a) China's earlier statements that it would deal with violators, (b) China being party to CITES since 1981, and (c) China having enacted in 1989 a Law of the Protection of Wildlife, which prohibits the catching or killing of two classes of special state protected wildlife,1131and specifically lists among them sea turtles and giant clams.1132
As the Tribunal has noted above, adopting appropriate rules and measures to prohibit a harmful practice is only one component of the due diligence required by States pursuant to the general obligation of Article 192, read in the context of Article 194(5) and the international law applicable to endangered species. There is no evidence in the record that would indicate that China has taken any steps to enforce those rules and measures against fishermen engaged in poaching of endangered species. Indeed, at least with respect to the April 2012 incidents, the evidence points directly to the contrary. China was aware of the harvesting of giant clams. It did not merely turn a blind eye to this practice. Rather, it provided armed government vessels to protect the fishing boats.1133The Chinese Ministry of Foreign Affairs Spokesperson confirmed on 12 April 2012 that it had 'dispatched administrative vessels . . . to protect the safety and legitimate fishing activities of Chinese fishermen and fishing vessels.'1134Despite the reference
1130Memorandum from the Secretary of Foreign Affairs, Republic of the Philippines, to the President of the Republic of the Philippines, (11 January 2006) (Annex 58).
1131Standing Committee of the National People's Congress, Law of the People's Republic of China on the Protection of Wildlife, amended 27 August 2009, Article 9, available at
<www.china.org.cn/english/environment/34349.htm>. See also Regulations of the People's Republic of China for the Implementation of Wild Aquatic Animal Protection, amended on 7 December 2013, Article 12, available at <http://www.eduzhai.net/yingyu/615/763/yingyu_246269.html>; Ministry of Agriculture, Measures of the People's Republic of China for Special Licenses for Exploitation of Aquatic Wild
Animals, available at <http://www.moa.gov.cn/zwllm/zcfg/nybgz/201401/t20140113_3737659.htm>.
1132Directory of the People's Republic of China on Special State Protection of Wildlife, Ministry of Forestry and Ministry of Agriculture, 14 January 1989, available at <www.unodc.org/res/cld/document/directory-of- the-peoples-republic-of-china-on-special-state-protection-of-wildlife_html/Directory_of_the_Peoples_
Republic_of_China_on_Special_State_Protection_of_Wildlife.pdf> (both sea turtles (Cheloniidae, '' ') and giant clams (Tridaonidae, ''') are expressly protected).
1133Memorandum from the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. N2E-0412-008 (11 April 2012) (Annex 77); Report from the Commanding Officer, SARV-003, Philippine Coast Guard to the Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard (28 April 2012) (Annex 78); Memorandum from the FRPLEU/QRT Chief, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines, to the Director, Bureau of Fisheries and Aquatic Resources, Republic of the Philippines (2 May 2012) (Annex 79).
1134Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Liu Weimin's Regular Press Conference (12 April 2012) (Annex 117).
to 'legitimate fishing activities', the photographic evidence of endangered species, including giant clams and sharks, on board the vessels in question indicates China must have known of, and deliberately tolerated, and protected the harmful acts. Similarly, with respect to the May 2013 incident in the vicinity of Second Thomas Shoal, the Tribunal accepts, on the basis of the photographic and contemporaneous documentary evidence, that Chinese naval and CMS vessels were escorting Chinese fishing vessels in gathering clams.1135The Tribunal therefore has no hesitation in finding that China breached its obligations under Articles 192 and 194(5) of the Convention, to take necessary measures to protect and preserve the marine environment, with respect to the harvesting of endangered species from the fragile ecosystems at Scarborough Shoal and Second Thomas Shoal.
There remains the question of China's responsibility for the more recent and widespread environmental degradation caused by propeller chopping for giant clams across the Spratlys. From satellite imagery showing scarring from this practice, it appears the harvesting took place in areas under control of Chinese authorities, at a time and in locations where Chinese authorities were engaged in planning and implementing China's island-building activities. The Tribunal considers that the small propeller vessels involved in harvesting the giant clams were within China's jurisdiction and control. The Tribunal finds that China, despite its rules on the protection of giant clams, and on the preservation of the coral reef environment generally,1136was fully aware of the practice and has actively tolerated it as a means to exploit the living resources of the reefs in the months prior to those reefs succumbing to the near permanent destruction brought about by the island-building activities discussed in Section 4.1137
Accordingly, the Tribunal finds that China has also breached its obligation to protect and preserve the marine environment in respect of its toleration and protection of the harvesting of giant clams by the propeller chopping method.
1135Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94); Armed Forces of the Philippines, Ayungin Shoal: Situation Update (11 May 2013) (Annex 95).
1136People's Republic of China, Marine Environment Protection Law of the People's Republic of China, art. 9 (25 December 1999) (Annex 614).
1137The Tribunal notes that China is not alone in conducting this practice, but estimates suggest that China is responsible for over 99 percent of the destruction of reef in the South China Sea brought about by this method. See V.R. Lee, 'Satellite Imagery Shows Ecocide in the South China Sea,' The Diplomat (15 January 2016), available at <http://thediplomat.com/2016/satellite-images-show-ecocide-in-the- south-china-sea/>; Ferse Report, pp. 59-60; McManus Report; Letter from Professor McManus to the Tribunal (22 April 2016).
The Tribunal next examines the complaints that China has breached the Convention in relation to Chinese fishermen who used cyanide and explosives at Scarborough Shoal and Second Thomas Shoal.
Based on contemporaneous reports from the Philippine navy, coast guard, and police, and photographic evidence presented in the record, the Tribunal is satisfied that Chinese fishing vessels were engaged in the use of dynamite or cyanide on the following occasions:
As early as 1995, 62 Chinese fishermen in the Spratly Islands were arrested by Philippine authorities after being found in possession of explosives and cyanide.1138
In March 1998, 29 Chinese fishermen at Scarborough Shoal were found in possession of dynamite and convicted under Philippine fisheries law banning it.1139
In April 2000, three Chinese vessels were found at Scarborough Shoal with blasting caps, detonating cord, and dynamite.1140
On three occasions in 2002 Chinese vessels in Scarborough Shoal were found with blasting caps, detonating cord, plastic explosives, cyanide, and cyanide tubes.1141
Cyanide pumps were found aboard Chinese vessels at Scarborough Shoal in December 20051142and April 2006.1143
1138Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 April 1995) (Annex 21).
1139Memorandum from the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines, to the Secretary of Foreign Affairs of the Republic of the Philippines (23 March 1998) (Annex 29); People of the Philippines v. Shin Ye Fen, et al., Criminal Case No. RTC 2357-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 30); People of the Philippines v. Wuh Tsu Kai, et al, Criminal Case No. RTC 2362-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 31); People of the Philippines v. Zin Dao Guo, et al, Criminal Case No. RTC 2363-I, Decision, Regional Trial Court, Third Judicial Region, Branch 69, Iba, Zambales, Philippines (29 April 1998) (Annex 32).
1140Situation Report the Philippine Navy to the Chief of Staff, Armed Forces of the Philippines, No. 004-18074 (18 April 2000) (Annex 41); Letter from the Vice Admiral, Armed Forces of the Philippines, to the Secretary of National Defense, Republic of the Philippines (27 May 2000) (Annex 42).
1141Memorandum from the Director, Naval Operation Center, Philippine Navy, to The Flag Officer in Command, Philippine Navy (11 February 2002) (Annex 49); Letter from Vice Admiral, Philippine Navy, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (26 March 2002) (Annex 50); Report from CNS to Flag Officer in Command, Philippine Navy, File No. N2D-0802-401 (1 September 2002) (Annex 52).
1142Letter from Rear Admiral, Armed Forces of the Philippines, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (2006) (Annex 57).
After 2006, the only mention in the record of use by Chinese fishing vessels of explosives is a historical entry in a military briefing of May 2013, which recounts that on 12 February 2012 '2 fishing vessels believed to be Chinese were monitored fishing using explosives and sodium cyanide 4 NM SW off LT57 in Ayungin Shoal.'1144The Tribunal notes that this reference is uncertain as to the provenance of the vessels and, unlike the above-listed incidents, is unsupported by contemporaneous reports, inventories, and photographs. Accordingly, the Tribunal does not include this incident in its further consideration of breach of Part XII of the Convention.
The Tribunal accepts the observation in the Ferse Report that cyanide and blast fishing are 'highly destructive methods' that have been used in the Spratly Islands in the past decades.1145It takes note of the studies referred to by Professor Carpenter which found 'both dynamite and cyanide fishing . . . among the most highly destructive of all fishing methods' and that both methods are considered irresponsible and unsustainable according to the FAO Code of Conduct for Responsible Fisheries.1146Because explosives shatter coral and cyanide can kill or injure non-target species, the Tribunal considers the use of both dynamite and cyanide to be 'pollution' of the marine environment within the meaning of the Convention'they are substances introduced by man that 'result in such deleterious effects as to harm living resources and marine life.'1147They also threaten the fragile ecosystem of the coral reefs and the habitats of endangered species at Scarborough Shoal. The Tribunal therefore considers that failure to take measures against the use of dynamite and cyanide would constitute breach of Articles 192, 194(2) and 194(5) of the Convention.
The Tribunal must, however, address whether there is sufficient evidence that China should be held responsible now for the failure to prevent the incidents listed in paragraph 968 above. The Tribunal recalls that while Chinese fishing vessels are within China's jurisdiction and control as the flag State, the obligation to ensure that those fishing vessels do not take measures to pollute the marine environment is one of due diligence.
1143Report from the Commanding Officer, NAVSOU-2, Philippine Navy, to the Acting Commander, Naval Task Force 21, Philippine Navy (9 April 2006) (Annex 59)
1144Armed Forces of the Philippines, Near-occupation of Chinese Vessels of Second Thomas (Ayungin) Shoal in the Early Weeks of May 2012 (May 2013) (Annex 94).
1145Ferse Report, p. 10.
1146First Carpenter Report p. 12; see also Merits Hearing Tr. (Day 3), p. 28, UN Food and Agriculture Organization, Code of Conduct for Responsible Fisheries (31 October 1995), para. 8.4.2.
1147Convention, Arts. 1, 194.
In contrast to the poaching of endangered species, there is little evidence in the record with respect to Philippine complaints to China about the use of cyanide and blasting specifically. In a memorandum about a meeting with China's Assistant Foreign Minister in April 1995, the Philippine Ambassador in Beijing recorded raising the issue of 62 Chinese fishermen found in possession of explosives and cyanide. He noted that this is 'harmful to the marine environment and thus, illegal. When coral reefs are destroyed, it takes generations before they can be rebuilt. And the poisoning of the marine environment . . . is a matter of grave concern to the Philippine Government.'1148
The Tribunal notes that the above statement pre-dates the introduction in 1999 of the Marine Environment Protection Law of the People's Republic of China.1149Indeed in March 2000, the same Philippine Ambassador to Beijing reported that a Chinese diplomat had expressed to him her 'particular concern about the practice of dynamite fishing' and had requested the Ministry of Agriculture to do something about the situation. 1150A year later, the new Philippine Ambassador in Beijing recalled that 'local fishing authorities imposed a penalty on the fishermen caught blasting coral reefs near Scarborough Shoal in early 2000.' He was also told by a Chinese Foreign Ministry official that 'the Chinese Government attaches great importance to environmental protection and violators are dealt with in accordance with Chinese laws and regulations.'1151
In 2000, the People's Republic of China updated its Fisheries Law, Article 30 of which prohibits the 'use of explosives, poisons, electricity and any other means in fishing that impairs the fishery resources.'1152Adopting appropriate rules and measures is one component of the due diligence required by States under the Convention. States are also required to adopt a certain level of vigilance in the enforcement and control of the rules, but there is little in the record to suggest that China has failed to do so with respect to dynamite and cyanide fishing.
1148Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 April 1995) (Annex 21).
1149People's Republic of China, Marine Environment Protection Law of The People's Republic of China (25 December 1999) (Annex 614).
1150Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-24-2000-S (14 March 2000) (Annex 40).
1151Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-06-2001-S (13 February 2001) (Annex 43). See also, Memorandum from the Embassy of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-09-2001-S (17 March 2001) (Annex 47).
1152People's Republic of China, Fisheries Law, Article 30, available at <www.npc.gov.cn/englishnpc/ Law/2007-12/12/content_1383934.htm>.
In contrast to the situations of harvesting of endangered species and harmful construction activities, there is scant evidence in the case record about the use of explosives and cyanide over the last decade or Philippine complaints about its use. This suggests China may have taken measures to prevent such practices in the Spratly Islands. In any event, the Tribunal is not prepared to make a finding on the evidence available, under Submission No. 11 with respect to cyanide and explosives.
The Tribunal turns now to the environmental impact of China's extensive island-building project at seven reefs in the Spratly Islands, the nature and extent of which is described in paragraphs 852 to 890 above. In summary, the record shows that since the end of 2013, China has created on top of the coral reefs approximately 12.8 million square metres of land, from millions of tons of dredged coral, rocks and sand. There is no question that the artificial island-building program is part of an official Chinese policy and program implemented by organs of the Chinese State.
Before turning to the impact of China's recent island-building activities, the Tribunal recalls that during the preceding two decades, China, as well as the Philippines and other States in the region, undertook some more modest construction and land reclamation work on features in the Spratly Islands, which has included the installation of buildings, wharves, helipads, and weather and communications instruments.1153The Tribunal notes Professor Carpenter's observation that most of the construction during this period was 'limited to building discrete structures with a minimal footprint on the natural form and structure of existing coral reefs.'1154Nevertheless, he opined in his first report that the earlier generation of concrete structures (including those built by other States) reduced the coral reefs on which they were installed, displaced the organisms that inhabited them, and made the reefs' structural integrity vulnerable to wave action and
1153See, e.g., Armed Forces of the Philippines, Chronological Development of Artificial Structures on Features (Annex 96); Armed Forces of the Philippines, Chronology of Events in the Kalayaan Island Group (2004) (Annex 53); Second Carpenter Report, pp. 6-8; Merits Hearing Tr. (Day 2), pp. 193-194; Note Verbale from the Department of Boundary and Ocean Affairs, Ministry of Foreign Affairs, People's Republic of China, to the Embassy of the Republic of the Philippines in Beijing, No. (2015) Bu Bian Zi No. 22 (30 March 2015) (Annex 686); J. Page & J.E. Barnes, 'China Expands Island Construction in Dispute South China Sea,' Wall Street Journal (19 February 2015) (Annex 748).
1154Second Carpenter Report, p. 6.
storms.1155Human presence on the features also entails the disposal of waste, and waste water, which promotes algal growth that can detrimentally affect fisheries.1156The Ferse Report also acknowledged that while the Spratly Islands are an area of high diversity and among the least impacted reefs in the South China Sea, the 'area is not pristine' and had already been affected by the impacts of human activity, such as overfishing and destructive fishing, construction activities and human habitation 'for several decades prior to commencement of large-scale construction in 2013.'1157The Ferse Report concluded however, that '[t]he scale of these previous impacts generally cannot be compared with the environmental harm caused by the construction activities, both in terms of spatial extent and duration.'1158
The conclusions of the Tribunal-appointed independent experts are unequivocal with respect to the more recent construction activities, which they say have 'impacted reefs on a scale unprecedented in the region.'1159They cite a 2016 study analysing satellite imagery that found up to 60 percent of the shallow reef habitat at the seven reefs has been directly destroyed.1160Construction-related sedimentation and turbidity have affected large portions of the reefs beyond the immediate area of construction. The Ferse Report states:
The effects of these impacts on the reefs, together with altered hydrodynamics and released nutrients, are likely to have wide-ranging and long-lasting ecological consequences for the affected reefs and the wider ecosystem of the Spratly Islands, and possibly beyond. Reefs subjected to direct land reclamation have disappeared entirely. Reefs subjected to dredging in order to create landfill will have lost their complex structure that was built over centuries to millennia. This structure will take decades to centuries to recover. Reefs that did not experience dredging directly but were impacted by the associated sedimentation and nutrient release will likely have experienced severe coral mortality and recovery will take place more slowly than in natural settings, likely taking decades. The capacity for ongoing . . . carbonate production is severely diminished on several of the reefs, and their capacity to keep up with increasing sea level rise is impaired. 1161
The Tribunal accepts the conclusion in the Ferse Report that 'China's recent construction activities have and will cause environmental harm to coral reefs at Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef, Mischief Reef, and Subi Reef; beyond the pre-existing damage to reefs that resulted from destructive fishing and the collection of corals and clams, storm damage, Crown-of-Thorns starfish, and the human presence on small garrisons
1155First Carpenter Report, pp. 14, 16-17.
1156Memorial, para. 6.110-6.111; First Carpenter Report, pp. 16-18.
1157Ferse Report, p. 3.
1158Ferse Report, p. 59.
1159Ferse Report, p. 3.
1160Ferse Report, p. 3; Mora Report.
1161Ferse Report, p. 3.
on the reefs.' The Ferse Report also arrives at the following conclusions as to the extent and likely duration of the harm.
The harm caused by direct burial of reef habitat during the construction of artificial islands is near-permanent. The duration of harm to areas affected by dredging and dredging- related release of sediments and nutrients and the prospects and likely rates for rejuvenation differ depending on the environmental setting of each particular affected habitat area. We expect that the harm to areas affected by dredging for navigable channels and basins will likely be near-permanent and that the prospects for rejuvenation are low, particularly as long as maintenance dredging for the use of the artificial islands continues. Second, where major geomorphological structures have been removed through dredging, such as large coral 'bommies' (accumulations of corals that typically stand several metres above the substrate), there is little prospect for recovery on ecological time scales. These structures constitute accumulated reef growth on geological time scales of centuries to millennia. This statement applies to much of the lagoon and deeper parts of the reef flat where these features (bommies or patch reefs) have been described in the Spratly Islands. Harm to areas affected by smothering of sediments and increased turbidity, which includes most of the lagoons at Mischief and Subi Reefs and parts of the outer reef slopes of all seven reefs, is likely to endure for years to decades within the lagoons (due to limited water exchange), and for weeks to months on the outer reef slopes. Rejuvenation of these areas is possible (provided chronic stressors such as sedimentation are removed and recurrent stressors such as bleaching events are infrequent), but will take several decades, and it will likely take centuries for large massive colonies to regrow.
China's construction activities have led to reduced productivity and complexity of the affected reefs, with significant reductions of nursery habitat for a number of fish species. Therefore, not only will the reefs affected by construction have a greatly reduced capacity to sustain local fisheries but their ability to help replenish the fisheries of neighbouring jurisdictions will also be vastly diminished ' at least threefold. The construction activities thus will have a broader impact on the marine ecosystem in and around the South China Sea and on fisheries resources. However, the magnitude of this impact will depend on the relative role of the seven affected reefs as critical habitat and source of larvae for fisheries resources compared to other reefs in the Spratly Islands, which is difficult to quantify due to a lack of empirical studies. On the basis of available information, cascading effects cannot be ruled out.1162
The conclusions in the Ferse Report largely confirm the conclusions reached in the First and Second Carpenter Reports. However, Dr. Ferse and his colleagues noted in Part IX of their report, that in some respects they consider Professor Carpenter may have overstated or understated particular aspects of the damage.1163
The Tribunal is conscious that the conclusions reached in the Ferse Report and those by Professor Carpenter and in other recent scientific studies,1164are at odds with China's stated position that its construction activities have followed a 'high standard of environmental protection' and that the marine environment end ecosystem of the South China Sea 'will not be
1162Ferse Report, pp. 59-60.
1163Ferse Report, pp. 42-46.
1164See, e.g., McManus Report; Mora Report.
damaged.'1165The Tribunal has accordingly sought out China's position on the environmental impact of its construction activities, by reviewing statements of Chinese officials and scientists, by asking the Philippines and the Tribunal-appointed experts to locate and assess the claims by Chinese officials and scientists, and by directly requesting China to comment on a range of materials and questions about the alleged impact of the construction.
The Ferse Report noted that several ecological studies of the area by Chinese researchers actually emphasise the need for conservation of the seven reefs,1166and 'available satellite and aerial imagery provides little indication of effective mitigation measures.'1167As to the general claim that the construction activity 'does not damage the environment on the reefs,' the Ferse Report stated it 'is contradicted by the facts.'1168While the Ferse Report noted that the Chinese statements contained 'accurate descriptions of the environmental conditions at the reefs,' the Chinese assessments of the nature and extent of impacts from construction were 'largely in disagreement with the available information.'1169The following are examples of specific claims made by Chinese scientists that were addressed in the Ferse Report:
Replenishment: Chinese scientists claimed that in the South China Sea 'the nutrients and food organisms can be replenished constantly from surrounding waters.' The Ferse Report noted there is 'very limited support' for the potential for replenishment from outside the Spratly Islands, in light of larval connectivity patterns within the South China Sea.1170
Timing of works: In relation to the claim by Chinese scientists that the construction was timed 'reasonably, trying to avoid spawn periods of red snapper (mid-April), tuna (peak from June to August) and bonito (from March to August),' the Ferse Report analysed satellite and aerial imagery to conclude that land construction had indeed occurred in
1165See, e.g., Permanent Mission of the People's Republic of China to the United Nations, Statement by Head of the Chinese Delegation at the 25th Meeting of States Parties to the UN Convention on the Law of the Sea (12 June 2014) (Annex 617), Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (9 April 2015) (Annex 624), Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hong Lei's Regular Press Conference (28 April 2015) (Annex 625), Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 14 (PG)-336 (28 October 2014) (Annex 680).
1166Ferse Report, p. 48, fn. 279; see also SOA Report, pp. 1-2.
1167Ferse Report, p. 48.
1168Ferse Report, p. 48.
1169Ferse Report, p. 2.
1170SOA Report, p. 3; Ferse Report, p. 49.
months during those spawning periods.1171The Ferse Report noted that construction activity occurred during the suspected spawning time of reef corals.
Water quality: Chinese scientists claimed that China avoided 'fine sands from going into reclamation areas to maintain the water quality of coral reef areas.' The Ferse Report stated that satellite and aerial imagery clearly shows water quality in the vicinity of each construction site was affected by increased sediment and turbidity from dredging. 1172
Restoration and Transplantation: Chinese scientists claimed that 'the restoration of coral reef communities could be realized should effective measures be taken' and that 'coral reefs that have been severely damaged . . . can be restored initially in 5-10 years provided that effective measures are taken, and complex and complete ecosystems can be fully restored in 50-100 years.' They also suggested implementing measures like 'transplantation' to better protect the coral reefs. The Ferse Report explained that restoration is not likely to succeed if stressors persist and if ecological connectivity and larval supply are disturbed. The Ferse Report noted the uncertainty of restoration science. It further noted 'large parts of the seven reefs have been permanently destroyed by construction, and for the remaining areas, recovery is uncertain and, if it occurs, it will take more than a century until the large massive coral colonies have regrown.' Further, restorative activities are 'extremely expensive' and have only ever been attempted on far smaller scales. Transplantation is unlikely to be suitable on the scale of the impacts from construction, as it could risk impacting other reefs in the region, and involves 'prohibitive' labour and costs.1173
Impact on reef structure: Chinese scientists claimed that due to strong currents and waves, 'the photosynthesis of corals' was left 'largely unaffected' and because the sites are located in areas where coverage of coral reefs is low, 'the overall community structure of coral reefs' and the 'physical and chemical living environment of coral reefs' have not fundamentally changed. The Ferse Report pointed to the sediment plumes generated by dredging and notes they are 'very likely to have altered the community structure of the affected coral reefs.' The Ferse Report recalled that the construction has permanently altered the hydrodynamics of the affected reefs, and elevated level of sediments are likely, 'from months to years in those parts of the reefs that are
1171SOA Report, p. 2; Ferse Report, pp. 50-51, 53.
1172SOA Report, p. 2; Ferse Report, pp. 50-51.
1173SOA Report, p. 3; Ferse Report, pp. 52-55.
well-flushed by open ocean waters, and from years to decades in areas with less flushing, such as the lagoons of Mischief and Subi Reef.'1174
Impact on reef health: Chinese scientists claimed that in light of the status of the reefs as 'sub-healthy' both before and after the construction activities, it can be concluded that the 'construction activities neither affected the health of the ecosystems of Nansha nor harmed the coral reef ecosystems.' The Ferse Report noted the lack of available information on post-construction monitoring but recalls that 'the available evidence leaves little doubt that the coral reef ecosystems of the seven affected reefs have suffered significant and extensive harm as a result of construction activities.' 1175
Selection of sites containing dead coral: The SOA and other Chinese scientists claim that the construction sites contained dead coral. The Ferse Report noted that even deep lagoon basins containing less live corals than other reef habitats constitute a vital habitat for molluscs, echinoderms and crustaceans. On the reefs lacking a deep lagoon (Cuarteron, Hughes, Gaven, and Johnson), material for land reclamation was gathered from the shallow reef habitat. In any event, sediment plumes affected both lagoon and outer reef slope habitats.
Use of 'nature simulation' method: China embraces the 'nature simulation' as its 'comprehensive technical concept' in the Nansha reef expansion project. It claims the land reclamation area will 'produce the ecological effects by going from desalination, solidification, efflorescence, to a green coral reef ecological environment.'1176The Ferse Report observed that this statement overlooks the importance of biogenic sediment production. 'Rather than simulating the natural process of island development, the construction process increases the erosion of the reefs by shifting the balance between carbonate accretion and erosion, and thus increases the risk of drowning the reef as sea levels continue to rise.'1177
Recovery: China's SOA has claimed that '[g]ood results have been obtained and the ecological impact on the coral reefs is partial, temporary, controllable, and
1174SOA Report, p. 3; Ferse Report, p. 53.
1175SOA Report, p. 3; Ferse Report, pp. 50-51.
1176SOA Statement, p. 1.
1177Ferse Report, p. 56.
recoverable.' 1178The Ferse Report summed up its responses to this and previous statements as follows:
Ecological impacts from the construction activities affected large parts of the reefs and include permanent (for reclaimed reef flats and excavated channels) and long- lasting (for sediment resuspension in lagoons) effects. The extensive sediment plumes visible from aerial and satellite imagery that remained near the construction areas for several weeks to months render the amount of control over potential impacts doubtful. For large areas of reef affected by the construction activities, recovery is unlikely, or may take decades to centuries.1179
Based on the compelling evidence, expert reports, and critical assessment of Chinese claims described above, the Tribunal has no doubt that China's artificial island-building activities on the seven reefs in the Spratly Islands have caused devastating and long-lasting damage to the marine environment. The Tribunal accordingly finds that through its construction activities, China has breached its obligation under Article 192 to protect and preserve the marine environment, has conducted dredging in such a way as to pollute the marine environment with sediment in breach of Article 194(1), and has violated its duty under Article 194(5) to take measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.
The Tribunal further notes that China's construction activities at the seven coral reefs have been met with protest from the Philippines and other neighbouring States.1180Article 197 of the Convention requires States to cooperate on a regional basis to formulate standards and practices for the protection and preservation of the marine environment. In relation to semi-enclosed seas, the Convention further specifies in Article 123 that States shall endeavour to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment.
The importance of cooperation to marine protection and preservation has been recognised by the International Tribunal for the Law of the Sea on multiple occasions.1181The International Court
1178SOA Statement, p. 2.
1179Ferse Report, p. 57.
1180See, e.g., Department of Foreign Affairs, Republic of the Philippines, 'Statement on China's Reclamation Activities and their Impact on the Region's Marine Environment' (13 April 2015) (Annex 608); Joint Communiqu'' 48th ASEAN Foreign Ministers Meeting Kuala Lumpur, 4 August 2015, available at
<www.asean.org/storage/images/2015/August/48th_amm/joint%20communique%20of%20the%2048th%20 amm-final.pdf>.
1181The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, para. 82; Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports
of Justice, also recognised, in Pulp Mills on the River Uruguay, that 'by co-operating . . . the States concerned can manage the risks of damage to the environment that might be created by the plans initiated by one or [the] other of them, so as to prevent the damage in question.'1182
With respect to China's island-building program, the Tribunal has before it no convincing evidence of China attempting to cooperate or coordinate with the other States bordering the South China Sea. This lack of coordination is not unrelated to China's lack of communication, discussed below.
Article 206 requires that when States have 'reasonable grounds for believing that planned activities under their jurisdiction or control may cause significant and harmful changes to the marine environment' they shall as far as practicable assess the potential effects of such activities on the marine environment' and also 'shall communicate reports of the results of such assessments.'
The Tribunal considers that given the scale and impact of the island-building activities described in this Chapter, China could not reasonably have held any belief other than that the construction 'may cause significant and harmful changes to the marine environment.' Accordingly, China was required, 'as far as practicable' to prepare an environmental impact assessment. It was also under an obligation to communicate the results of the assessment.
In Construction of a Road (Nicaragua v. Costa Rica),1183the International Court of Justice found that Costa Rica's simple assertions as to the existence of a preliminary assessment did not equate to having 'adduced any evidence that it actually carried out such a preliminary assessment.'1184Despite China's repeated assertions by officials at different levels, that it has
2003, para. 92; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 140; see also Merits Hearing, Tr. (Day 4), pp. 40-41.
1182Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p.14, p.49, para. 77; see also 'Consequences Arising Out Of Acts Not Prohibited By International Law (Prevention of Transboundary Harm From Hazardous Activities),' in Report of the International Law Commission on the work of its Fifty-third session (23 April-1 June and 2 July-10 August 2001), UN Doc. GAOR A/56/10 (2001).
1183Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua: Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), Merits Judgment, ICJ Reports 2015, para. 154.
1184Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua: Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v. Costa Rica), Merits Judgment, ICJ Reports 2015, para. 154.
undertaken thorough environmental studies, neither the Tribunal, the Tribunal-appointed experts, the Philippines, nor the Philippines' experts have been able to identify any report that would resemble an environmental impact assessment that meets the requirements of Article 206 of the Convention, or indeed under China's own Environmental Impact Assessment Law of 2002.1185
By China's own legislative standards, an EIA must be 'objective, open and impartial, comprehensively consider impacts on various environmental factors and the ecosystem they form after the implementation of the plan or construction project, and thus provide scientific basis for the decision-making.'1186Additionally, the 'state shall encourage all relevant units, experts and the public to participate in the EIA in proper ways.' 1187With respect to construction projects, Chinese law requires an EIA to include, inter alia, analysis, projection and evaluation on the potential environmental impacts of the project, and suggestions on implementation of environmental monitoring.1188The SOA Statement and the SOA Report which the Tribunal did manage to locate both fall short of these criteria, and are far less comprehensive than EIAs reviewed by other international courts and tribunals, or those filed in the foreign construction projects to which the SOA scientists referred in their report.1189
The Tribunal cannot make a definitive finding that China has prepared an environmental impact assessment, but nor can it definitely find that it has failed to do so in light of the repeated assertions by Chinese officials and scientists that China has undertaken thorough studies. Such a finding, however, is not necessary in order to find a breach of Article 206. To fulfil the obligations of Article 206, a State must not only prepare an EIA but also must communicate it. The Tribunal directly asked China for a copy of any EIA it had prepared; China did not provide one.1190While acknowledging that China is not participating in the arbitration, China has
1185People's Republic of China, Law of the People's Republic of China on Evaluation of Environmental Effects (28 October 2002) (Annex 615).
1186People's Republic of China, Law of the People's Republic of China on Evaluation of Environmental Effects (28 October 2002) (Annex 615).
1187People's Republic of China, Law of the People's Republic of China on Evaluation of Environmental Effects (28 October 2002) (Annex 615).
1188People's Republic of China, Law of the People's Republic of China on Evaluation of Environmental Effects (28 October 2002), Article 17 (Annex 615).
1189The Philippines' March 2016 Written Comments, p. 14; Merits Hearing Tr. (Day 4), p. 184, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Merits, Counter-Memorial of Uruguay (20 July 2007), Vols. VI and VII; Commonwealth of Australia, Queensland Government, Department of State Development, Final Environmental Impact Statement for the proposed Abbot Point Growth Gateway Project, available at <www.statedevelopment.qld.gov.au/abbotpoint-eis> (Annex 892).
1190Letter from the Tribunal to the Parties (5 February 2016); Letter from the Tribunal to the Parties 15 March 2016 (inviting China's comments).
nevertheless found occasions and means to communicate statements by its own officials, or by others writing in line with China's interests.1191Therefore had it wished to draw attention to the existence and content of an EIA, the Tribunal has no doubt it could have done so. In any event, the obligation to communicate is, by the terms of Article 205, to 'competent international organizations, which should make them available to all States.' Although China's representatives have assured the States parties to the Convention that its 'construction activities followed a high standard of environmental protection,' it has delivered no assessment in writing to that forum or any other international body as far as the Tribunal is aware.1192Accordingly, the Tribunal finds that China has not fulfilled its duties under Article 206 of the Convention.
Based on the considerations outlined above, the Tribunal finds that China has, through its toleration and protection of, and failure to prevent Chinese fishing vessels engaging in harmful harvesting activities of endangered species at Scarborough Shoal, Second Thomas Shoal and other features in the Spratly Islands, breached Articles 192 and 194(5) of the Convention.
The Tribunal further finds that China has, through its island-building activities at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the Convention.
* * *
1191See paragraph 127 above.
1192Permanent Mission of the People's Republic of China to the United Nations, Statement by
H.E. Ambassador Wang Min, Head of the Chinese Delegation at the 25th Meeting of States Parties to the UN Convention on the Law of the Sea (12 June 2014) (Annex 617).
this page intentionally blank
CCUPATION AND
CONSTRUCTION
ACTIVITIES ON
MISCHIEF
REEF
(SUBMISSION
N. 12)'In this Section, the Tribunal addresses the Parties' dispute concerning China's activities on Mischief Reef and its construction there of installations and artificial islands. This dispute is reflected in parts (a) and (c) of the Philippines' Submission No. 12, which provides as follows:
China's occupation of and construction activities on Mischief Reef
violate the provisions of the Convention concerning artificial islands, installations and structures;
. . .
(c) constitute unlawful acts of attempted appropriation in violation of the Convention;
To avoid duplication, the Tribunal has addressed the matters raised in the Philippines' Submission No. 12(b)'asserting that China has violated its 'duties to protect and preserve the marine environment''in connection with Submission No. 11 (at paragraphs 815 to 993 above).
Chinese construction activities on Mischief Reef reportedly date back at least to January 1995, when fiberglass structures flying the Chinese flag were observed at four separate locations on the reef platform.1193Fishermen from the Philippines reported the presence of 'an estimated 1,000 uniformed men' aboard eleven Chinese vessels anchored there and in the structures on the reef.1194
On 6 February 1995, the Philippines submitted an Aide Memoire1195to the Chinese Ambassador in Manila. According to Philippine records, China had denied1196that it was building a base on the feature. The Philippines expressed 'serious concern' over Chinese activities on Mischief Reef, including:
1193Letter from Captain, Philippine Navy, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (13 November 2004) (Annex 54); Armed Forces of the Philippines, Chronology of Events in the Kalayaan Island Group (2004) (Annex 53).
1194Armed Forces of the Philippines, Chronology of Events in the Kalayaan Island Group (2004) (Annex 53).
1195Memorandum from the Undersecretary of Foreign Affairs of the Republic of the Philippines to the Ambassador of the People's Republic of China in Manila (6 February 1995) (Annex 17).
1196Armed Forces of the Philippines, Chronology of Events in the Kalayaan Island Group (2004) (Annex 53).
The presence of three large warships and five smaller vessels belonging to the People's Republic of China on or around Panganiban Reef, otherwise known as Mischief Reef;
The construction by the People's Republic of China of certain structures on Panganiban Reef; and
The detention of Filipino fishermen by military elements of the People's Republic of China deployed on and around Panganiban Reef.1197
The Philippines added that China's actions violated 'the spirit of the 1992 ASEAN Declaration on the South China Sea' and requested the immediate removal of Chinese vessels from the reef.
On 10 March 1995, China's Vice Premier and Minister of Foreign Affairs reportedly described the structures on Mischief Reef as 'typhoon shelters' constructed by Chinese fishing authorities 'for the purpose of protecting the lives of Chinese fishermen and their production.'1198The Minister reiterated that the structures were civilian in nature and did 'not pose threat to any country.'1199
In the period from October 1998 to February 1999, China substantially enlarged two of the structures on Mischief Reef while removing the other two.1200On 15 October 1998, according to Philippine diplomatic archives, China informed the Philippine Ambassador in Beijing of 'plans to renovate and reinforce the structures it [China] constructed on Mischief Reef back in 1995.'1201According to the Philippines' then-Undersecretary for Policy in the Department of Foreign Affairs, the Philippine Ambassador was informed by the Chinese Ministry of Foreign Affairs that:
Chinese local fishing authorities will undertake 'soon' the renovation and reinforcement works which have become necessary because the structures have deteriorated over the years due to exposure to the elements. Furthermore, the Chinese have stated that they will give positive consideration to the use of the facilities by other countries, including the Philippines, after the renovation and reinforcement works have been completed and when the conditions are ripe.1202
1197Memorandum from the Undersecretary of Foreign Affairs of the Republic of the Philippines to the Ambassador of the People's Republic of China in Manila (6 February 1995) (Annex 17).
1198Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 March 1995) (Annex 18).
1199Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 March 1995) (Annex 18).
1200Letter from Captain, Philippine Navy, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (13 November 2004) (Annex 54).
1201Memorandum from the Undersecretary for Policy, Department of Foreign Affairs, Republic of the Philippines, to all Philippine Embassies (11 November 1998) (Annex 35).
1202Memorandum from the Undersecretary for Policy, Department of Foreign Affairs, Republic of the Philippines, to all Philippine Embassies (11 November 1998) (Annex 35).
1000. Philippine records indicate that, in addition to reinforcing two of the existing structures, China added a concrete platform supporting a three-storey building at each site.1203A report by the Armed Forces of the Philippines described the construction activities as involving '[a]bout 100-150 personnel working on site laying foundations for rectangular structure.'1204
1001. On 5 November 1998, the Philippines sent China a Note Verbale in which it demanded from China that it:
immediately cease and desist from doing further improvements over the illegal structures it has built in [Mischief] Reef and to dismantle any repair works, renovations, reinforcements, fortifications and/or improvements made therein.1205
1002. On 9 November 1998, the Philippine Ambassador in Beijing met the Deputy Director General of the Asia Department of the Chinese Ministry of Foreign Affairs. At the meeting, the Deputy Director General characterised the activities as 'the work of the local fishing authorities undertaking repair and renovation.' 1206On 14 November 1998, China's Minister of Foreign Affairs explained that 'the structures are solely for shelter of fishermen . . . . The scale of work is small and there is no change in the civilian nature of the facilities.'1207
1003. By February 1999, the two sites at Mischief Reef were equipped with a helipad, new communications equipment, and wharves.1208An oblique photograph taken by the Philippines and reproduced as Figure 30 on page 402 below depicts the smaller of China's two structures following these improvements:
1203Letter from Captain, Philippine Navy, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (13 November 2004) (Annex 54).
1204Armed Forces of the Philippines, Chronological Development of Artificial Structures on Features
(Annex 96).
1205Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 983577 (5 November 1998) (Annex 185).
1206Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-77-98-S (9 November 1998) (Annex 34). See also Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-76-98-S (6 November 1998) (Annex 33).
1207Memorandum from the Secretary of Foreign Affairs of the Republic of the Philippines to the President of the Republic of the Philippines (14 November 1998) (Annex 36).
1208Letter from Captain, Philippine Navy, to the Assistant Secretary for Asian and Pacific Affairs, Department of Foreign Affairs, Republic of the Philippines (13 November 2004) (Annex 54).
Figure 30: Aerial Photograph of Structure on Mischief Reef Supplemental Written Submission, Vol. II, p. 126.
1004. Construction on Mischief Reef between 1999 and 2013 appears to have been relatively limited.
China's intensive construction of artificial islands on seven coral reefs commenced in 2014, with construction on Mischief Reef resuming from January 2015.1209On 28 May 2015, for instance, the Philippine Secretary of National Defense, identified 'around 32 dredger vessels, 32 cargo ships and three (3) ocean tugs' deployed at the reef.1210
1005. On 3 February 2015, in response to the commencement of substantial construction on Mischief Reef that year, the Philippines delivered to China a Note Verbale 'to strongly protest China's land reclamation activities at Panganiban (Mischief) Reef.'1211The Philippines went on to assert as follows:
Panganiban [Mischief] Reef is a low-tide elevation located in the exclusive economic zone of the Philippines and on its continental shelf. Pursuant to Articles 60 and 80 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the Philippines has the exclusive right to authorize the construction of artificial islands, installations or other
1209See Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 15-0359 (3 February 2015) (Annex 682).
1210Letter from the Secretary of National Defense, Republic of the Philippines, to the Secretary of Foreign Affairs, Republic of the Philippines (22 June 2015) (Annex 610).
1211Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 15-0359 (3 February 2015) (Annex 682).
structures in the vicinity of Panganiban [Mischief] Reef. China's reclamation activities constitute a flagrant violation of these rights.1212
The Philippines concluded by requesting that China 'desist from its reclamation activities.'1213
1006. On 12 February 2015, China replied that 'China has indisputable sovereignty over the Nansha Islands and its adjacent waters. The development of any facility in the Nansha Islands falls within the scope of China's sovereignty.'1214
1007. Aerial and satellite photography up to and over the course of 2015 details China's construction of an artificial island on Mischief Reef and is reproduced at Figures 31 and 32 on page 405 below. The latter photograph from October 2015 shows an artificial island covering the entire northern half of the reef.
1008. Calculations presented by the Philippines estimate that China's construction work has resulted in the creation of 5,580,000 square metres of new land on Mischief Reef as of November 2015.1215
1009. China's activities on Mischief Reef are not limited to the creation of new land alone. Chinese construction on the feature has added fortified seawalls, temporary loading piers, cement plants, and a 250-metre-wide channel to allow transit into the lagoon by large vessels.1216Additionally, one analysis has noted that an area of approximately 3,000 metres in length has 'been cleared and flattened along the northern rim of the reef,'1217a development that, according to media reports, may indicate the intention to build an airstrip. 1218A Chinese Foreign Ministry Spokesperson was questioned regarding the construction of an airstrip on Mischief Reef and did not deny this, noting instead that '[c]onstruction activities taken by the Chinese side on some
1212Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 15-0359 (3 February 2015) (Annex 682) (emphasis in original).
1213Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 15-0359 (3 February 2015) (Annex 682).
1214Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-053 (12 February 2015) (Annex 683) (emphasis added).
1215See Center for Strategic & International Studies, Asia Maritime Transparency Initiative, Mischief Reef Tracker, available at <amti.csis.org/mischief-reef-tracker/#> (accessed 1 November 2015) (Annex 782).
1216'Third South China Sea airstrip being built, says expert, citing satellite photos,' The Guardian
(15 September 2015) (Annex 770).
1217G. Poling, 'Spratly Airstrip Update: Is Mischief Reef Next?,' Center for Strategic & International Studies (16 September 2015) (Annex 835).
1218'Third South China Sea Airstrip Being Built, Says Expert, Citing Satellite Photos,' The Guardian
(15 September 2015) (Annex 770).
stationed islands and reefs in the Nansha Islands are completely lawful, reasonable and justified.'1219
1010. The Philippines submits that China's activities at Mischief Reef violate Articles 60 and 80 of the Convention, relating to artificial islands, installations. and structures. and constitute unlawful acts of attempted appropriation under the Convention.
1011. The Philippines submits that the Tribunal has jurisdiction to consider the matters raised in its Submission No. 12, and that the Tribunal's jurisdiction is not constrained by the exception for military activities in Article 298(1)(b).1220
1012. The Philippines notes that China did not invoke the military activities exception in its Position Paper of 7 December 2014.1221In the Philippines' view, the Tribunal should accept China's own characterisation of its activities. According to the Philippines, '[t]he decision by a State to characterise its own actions as military activities is not one that is taken lightly. The political, legal and other consequences may extend well beyond Article 298, or indeed the Law of the Sea Convention as a whole.'1222Far from China having invoked the exception, the Philippines notes that 'China repeatedly told the Philippines that the facilities at Mischief Reef were being built for civilian use' and argues that any 'fleeting intimation of a concurrent defence purpose falls far short of a characterisation of the activities as military.'1223The Philippines also recalls that China's President Xi Jinping has stated that China does not intend to militarise the features.1224
1219Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hong Lei's Regular Press Conference (14 September 2015), available at <www.fmprc.gov.cn/mfa_eng/ xwfw_665399/s2510_665401/2511_665403/t1296485.shtml>.
1220Jurisdictional Hearing Tr. (Day 3), pp. 48-53.
1221Jurisdictional Hearing Tr. (Day 2), p. 73.
1222Jurisdictional Hearing Tr. (Day 2), pp. 74-75.
1223Jurisdictional Hearing Tr. (Day 2), pp. 75-76.
1224Merits Hearing Tr. (Day 3), p. 88; 'China not to pursue militarization of Nansha Islands in South China Sea: Xi,' Xinhua (25 September 2015), available at <news.xinhuanet.com/english/2015- 09/26/c_134660930.htm>; United States, The White House, Office of the Press Secretary, 'Press Release: Remarks by President Obama and President Xi of the People's Republic of China in Joint Press Conference' (25 September 2015) (Annex 664).
Figure 31: Mischief Reef, 24 January 2012
(Annex 792)
Figure 32: Mischief Reef, 19 October 2015
(Annex 792)
this page intentionally blank
1013. According to the Philippines, 'the context [of the military activities exception] requires that the nature and purpose of the activity be military, to the exclusion of other activities or purposes that are more than purely incidental.' 1225With this in mind, the Philippines argues that 'mixed-use projects' and situations 'in which a military unit is used to protect other activities' are not covered by the exception to jurisdiction. 1226With respect to land reclamation in particular, the Philippines submits that 'the involvement of military personnel in construction or land reclamation activities does not necessarily mean that the purpose of the activities is military. The logistical capabilities of the armed forces are at times engaged for civilian purposes in different parts of the world.'1227The Philippines also notes that '[t]he Chinese People's Liberation Army is expressly tasked by the constitution to 'participate in national reconstruction', and has an extensive record of civil projects.'1228
1014. Finally, the Philippines argues that subsequent Chinese statements cannot change the nature of the activities it has undertaken. According to the Philippines, '[t]he nature of the activity complained of is determined as of the time that activity occurred. The respondent cannot thereafter unilaterally change the jurisdictional facts regarding its past conduct, especially two-and-a-half years after the proceedings were commenced.'1229
1015. The Philippines develops its Submissions from the position that Article 56(1) provides coastal States the 'exclusive right to regulate the establishment and use' of such structures within its exclusive economic zone.1230On this basis, the Philippines submits that China's construction of artificial islands, installations, and structures on Mischief Reef violate Articles 60 and 80 of the Convention.1231Specifically, the Philippines argues that, under Article 60, coastal States enjoy the 'exclusive right' to authorise or regulate the construction of structures, a principle that is extended to the continental shelf by virtue of Article 80.1232
1225Merits Hearing Tr. (Day 4), p. 103.
1226Merits Hearing Tr. (Day 4), p. 104.
1227Jurisdictional Hearing Tr. (Day 2), pp. 81-82.
1228Jurisdictional Hearing Tr. (Day 2), p. 82.
1229Jurisdictional Hearing Tr. (Day 3), p. 57.
1230Memorial, para. 6.100.
1231Memorial, para. 6.100.
1016. In this connection, the Philippines notes that Mischief Reef 'is located within 200 M' of Palawan and 'not within 200 M of any other feature claimed by China that is capable of generating an EEZ or a continental shelf.'1233In its view, therefore, the Philippines remains the only possible beneficiary of the effects of Articles 60 and 80 of the Convention with respect to Mischief Reef.1234Accordingly, because China did not 'seek and receive authorization from the Philippines,' 1235it violated Articles 56(1)(b)(i), 60(1), and 80 of the Convention.1236Because the Philippines considers the Convention to require similar authorisation for the 'operation and use' of structures already built (in addition to their construction in the first instance), moreover, it submits that China's violation is a 'continuing' one, at least so long as its activities on Mischief Reef persist.1237
1017. The Philippines also considers China's construction of artificial islands, installations, and other structures to constitute acts of attempted and unlawful appropriation.1238Taking into account China's assertions of sovereignty over the reef, as well as the presence of China's flag, the Philippines considers that it is 'beyond dispute' that China claims to have appropriated Mischief Reef.1239
1018. In the Philippines' view, low-tide elevations are incapable of being 'fully assimilated with islands or other land territory' such as to extend a State's sovereignty over such features (see also paragraphs 307 to 309 above).1240Drawing on guidance provided by the International Court of Justice in Maritime Delimitation and Territorial Questions between Qatar and Bahrain and Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), the Philippines considers that 'sovereignty and other rights' in relation to low-tide elevations are determined 'by the maritime zone in which they are located.'1241As a result, and to the extent such features lie within the territorial sea of an island or other land
1233Memorial, para. 6.103.
1234Memorial, para. 6.103.
1235Memorial, para. 6.103.
1236Memorial, para. 6.103.
1237Memorial, para. 6.104.
1238Memorial, paras. 6.105-6.107.
1239Merits Hearing Tr. (Day 2), p. 211.
1240Memorial, paras. 5.86, 6.105, quoting Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, ICJ Reports 2001, p. 40 at p. 102, para. 206.
territory, the Philippines submits that low-tide elevations fall under the sovereignty of the coastal State in whose territorial sea those features are located.1242In this case, because it considers Mischief Reef to lie within its exclusive economic zone and continental shelf, the Philippines deems Mischief Reef to be 'subject to [its] sovereign rights.'1243Those rights, it suggests, do not depend on occupation or express proclamation.1244
1019. Although China is not participating in these proceedings, its statements relating to the nature and purpose of its actions at Mischief Reef provide an indication of China's position regarding its activities on the reef.
1020. In bilateral meetings from 20 to 21 March 1995, the Chinese Vice Minister for Foreign Affairs informed his Philippine counterpart that the reef's structures 'are not military [structures], they are wind shelters and Chinese fishermen have long used Mischief [Reef] as wind shelter.'1245China reiterated its position throughout 1995.1246During bilateral talks on 10 August 1995, for instance, China emphasised the economic character of its activities and explained that the construction was intended to provide shelter for fishermen from local winds:
It is nothing serious for the Chinese side to construct some windsheltering facilities for peaceful purposes. Some people just exaggerated this and they said that the Chinese side is constructing a military facility. This does not square with the fact[s].1247
1021. Further statements by China have largely reflected its previous assertions as to the structures' purpose, continuing throughout the 1990s to characterise its activities on Mischief Reef as civilian in nature.1248On 15 March 1999, China informed the Philippines that the facilities were
1242Memorial, para. 6.105-6.106.
1243Memorial, para. 6.107.
1244Merits Hearing Tr. (Day 2), pp. 207-208.
1245Government of the Republic of the Philippines and Government of the People's Republic of China,
Philippine'China Bilateral Consultations: Summary of Proceedings (20-21 March 1995) (Annex 175).
1246See, e.g., Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-231-95 (20 April 1995) (Annex 22); Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 April 1995) (Annex 21).
1247Government of the Republic of the Philippines, Transcript of Proceedings: Republic of the Philippines' People's Republic of China Bilateral Talks (10 August 1995) (Annex 181).
1248Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 March 1995) (Annex 18); Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-231-95 (20 April 1995) (Annex 22); Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-76-98-S (6 November 1998) (Annex 33); Memorandum from the
'meant for civilian use and not for military purposes,' and stated that, '[b]y repairing the structures, China's actual intention to use them as fishermen shelters will be supported.'1249China explained, further, that the 'so-called radar facilities' on the reef were 'nothing but dish- type television satellite antennae to enable the personnel on the reef to watch ordinary TV programs.'1250At a bilateral meeting the following month, China reiterated that its facilities would 'remain for civilian purposes.'1251
1022. In keeping with its earlier pronouncements, more recent Chinese statements have continued to characterise China's activities on Mischief Reef as intended for civilian purposes. On 9 April 2015, for example, a Spokesperson for China's Foreign Ministry stated:
The Chinese government has been carrying out maintenance and construction work on some of the garrisoned Nansha Islands and reefs with the main purposes of optimizing their functions, improving the living and working conditions of personnel stationed there, better safeguarding territorial sovereignty and maritime rights and interests, as well as better performing China's international responsibility and obligation in marine search and rescue, disaster prevention and mitigation, marine science and research, meteorological observation, environmental protection, navigation safety, fishery production service and other areas. The relevant construction, which is reasonable, justified and lawful, is well within China's sovereignty. It does not impact or target any country, and is thus beyond reproach.
After the construction, the islands and reefs will be able to provide all-round and comprehensive services to meet various civilian demands besides satisfying the need of necessary military defense. The maritime areas in the South China Sea, where shipping lanes criss-cross and fishing grounds scatter around, are far away from the landmass. These areas are prone to marine accidents due to the influence of typhoon and monsoon. Civilian functions and facilities will be included in the construction for ships to take shelter, and for navigation aid, search and rescue, marine meteorological observation and forecast, fishery service and administration, so as to provide services to ships of China, neighboring countries and other countries that sail across the South China Sea.1252
1023. On 16 June 2015, China's Foreign Ministry Spokesperson reiterated that 'the main purpose of China's construction activities is to meet various civilian demands.'1253The statement was
Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-18-99-S (15 March 1999) (Annex 38); Government of the Republic of the Philippines and Government of the People's Republic of China, Philippine'China Bilateral Consultations: Summary of Proceedings (20-21 March 1995) (Annex 175).
1249Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-18-99-S (15 March 1999) (Annex 38).
1250Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-18-99-S (15 March 1999) (Annex 38).
1251Government of the Republic of the Philippines and Government of the People's Republic of China, Joint Statement: Philippine-China Experts Group Meeting on Confidence Building Measures (23 March 1995) (Annex 178(bis)).
1252Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (9 April 2015) (Annex 624).
1253Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Lu Kang's Remarks on Issues Relating to China's Construction Activities on the Nansha Islands and Reefs (16 June
mirrored in remarks by the Chinese Foreign Minister at an ASEAN Regional Forum on 6 August 2015:
At the end of June, China announced the completion of land reclamation. Next, we will build facilities mainly for public good purposes, including multi-functional lighthouse, search and rescue facilities for maritime emergencies, meteorological observatory station, maritime scientific and research center, as well as medical and first aid facilities.1254
1024. In its Award on Jurisdiction, the Tribunal held that Submission No. 12 reflects a dispute concerning 'China's activities on Mischief Reef and their effects on the marine environment.'1255It determined that this is not a dispute concerning sovereignty or maritime boundary delimitation, nor is it barred from the Tribunal's consideration by any requirement of Section 1 of Part XV.1256The Tribunal warned, however, that its jurisdiction to address the questions raised in Submission No. 12 'is dependent on the status of Mischief Reef as an 'island', 'rock', or 'low-tide elevation'.'1257Had the Tribunal found'contrary to the premise of the Philippines' Submission'that Mischief Reef is a fully entitled island or rock and thus constitutes land territory, it would necessarily lack jurisdiction to consider the lawfulness of China's construction activities on Mischief Reef (at least in terms of the provisions of the Convention concerning artificial islands) or the appropriation of the feature.1258Accordingly, the Tribunal deferred taking any final decision with respect to its jurisdiction over this Submission.1259
1025. The Tribunal has now found, however, that Mischief Reef is a low-tide elevation and not a rock or fully entitled island (see paragraphs 374 to 378 above) and, as such, generates no entitlement to maritime zones of its own. The Tribunal has also found that none of the high-tide features in the Spratly Islands is a fully entitled island for the purposes of Article 121 of the Convention
2015), available at <www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1273370.shtml>. The following week, China protested Philippine overflight over the reef. Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. 15 (PG)-214 (28 June 2015) (Annex 689).
1254Ministry of Foreign Affairs, People's Republic of China, Wang Yi on the South China Sea Issue At the ASEAN Regional Forum (6 August 2015) (Annex 634).
1255Award on Jurisdiction, para. 409.
1256Award on Jurisdiction, para. 409.
1257Award on Jurisdiction, para. 409.
1258Award on Jurisdiction, para. 409.
1259Award on Jurisdiction, para. 413(H).
(see paragraphs 473 to 647 above). From these conclusions, it follows that there exists no legal basis for any entitlement by China to maritime zones in the area of Mischief Reef and no situation of overlapping entitlements that would call for the application of Articles 15, 74, or 83 to delimit the overlap. Mischief Reef is necessarily a low-tide elevation located within the exclusive economic zone of the Philippines.
1026. In its Award on Jurisdiction, the Tribunal also reserved for the merits the question of whether Chinese activities at Mischief Reef constitute 'military activities' within the scope of Article 298(1)(b) of the Convention.1260Article 298(1)(b) excludes disputes concerning military activities from compulsory dispute settlement under the Convention.
1027. In determining whether Chinese activities at Mischief Reef are military in nature, the Tribunal takes note of China's repeated statements that its installations and island construction are intended to fulfil civilian purposes.1261The Tribunal also takes note of the public statement of China's President Xi Jinping that '[r]elevant construction activities that China are undertaking in the island of South ' Nansha Islands do not target or impact any country, and China does not intend to pursue militarization.'1262
1260Award on Jurisdiction, paras. 372, 396, 409.
1261See Ministry of Foreign Affairs, People's Republic of China, Wang Yi on the South China Sea Issue At the ASEAN Regional Forum (6 August 2015) (Annex 634); Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Lu Kang's Remarks on Issues Relating to China's Construction Activities on the Nansha Islands and Reefs (16 June 2015), available at
<www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1273370.shtml>; Ministry of Foreign Affairs, People's Republic of China, Foreign Ministry Spokesperson Hua Chunying's Regular Press Conference (9 April 2015) (Annex 624).
China has also made the same point frequently in its diplomatic communications and conversations with officials of the Philippines. As recorded by the Philippines, these include at least the following: Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-18-99-S (15 March 1999) (Annex 38); Memorandum from the Ambassador of the Republic of Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-76-98-S (6 November 1998) (Annex 33); Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Secretary of Foreign Affairs of the Republic of the Philippines, No. ZPE-231-95 (20 April 1995) (Annex 22); Government of the Republic of the Philippines, Transcript of Proceedings: Republic of the Philippines'People's Republic of China Bilateral Talks (10 August 1995) (Annex 181); Government of the Republic of the Philippines and Government of the People's Republic of China, Philippine'China Bilateral Consultations: Summary of Proceedings (20-21 March 1995) (Annex 175); Memorandum from the Ambassador of the Republic of the Philippines in Beijing to the Undersecretary of Foreign Affairs of the Republic of the Philippines (10 March 1995) (Annex 18).
1262'China not to pursue militarization of Nansha Islands in South China Sea: Xi,' Xinhua (25 September 2015), available at <news.xinhuanet.com/english/2015-09/26/c_134660930.htm>; United States, The White House, Office of the Press Secretary, 'Press Release: Remarks by President Obama and President Xi of the People's Republic of China in Joint Press Conference' (25 September 2015) (Annex 664).
1028. The Tribunal will not deem activities to be military in nature when China itself has consistently resisted such classifications and affirmed the opposite at the highest level. Accordingly, the Tribunal accepts China's repeatedly affirmed position that civilian use comprises the primary (if not the only) motivation underlying the dramatic alterations on Mischief Reef. As civilian activity, the Tribunal notes that China's conduct falls outside the scope of Article 298(1)(b) and concludes that it has jurisdiction to consider the Philippines' Submission.
1029. As a preliminary matter, and as noted previously in this Award (see paragraph 696 above), the Tribunal is of the view that the Parties' dispute in relation to the Philippines' Submission No. 12 appears to stem from divergent understandings of their respective rights in the areas of the South China Sea within 200 nautical miles of the Philippines' baselines that are encompassed by the 'nine-dash line', including Mischief Reef. Each Party, in other words, has conducted its affairs from the premise that it, and not the other Party, has sovereign rights over Mischief Reef.
1030. However much these beliefs have been held in good faith, the Tribunal has found that Mischief Reef is a low-tide elevation that falls within an area where only the Philippines possesses possible entitlements to maritime zones under the Convention. Mischief Reef, therefore, can only constitute part of the exclusive economic zone and continental shelf of the Philippines; it does not lie within any entitlement that could be generated by any feature claimed by China (or another State).
Acts in Relation to the Installations and the Construction of Islands at Mischief Reef
1031. Having found that Mischief Reef lies within the exclusive economic zone and continental shelf of the Philippines, the Tribunal notes that the Convention is clear with respect to the law governing artificial islands, installations, and structures.
1032. Article 56(1)(b) of the Convention provides that, within the exclusive economic zone, the coastal State enjoys '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.'
1033. Article 60 then elaborates on this provision. Paragraphs (1) and (2) provide as follows:
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:
artificial islands;
installations and structures for the purposes provided for in article 56 and other economic purposes;
installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.
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.
The remaining paragraphs of Article 60 address (a) the notice that must be given regarding the construction of artificial islands, installations, and structures; (b) the procedures with respect to safety zones; and (c) the obligation to remove abandoned or disused installations and structures. Article 60(8) also expressly provides that '[a]rtificial 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.'
1034. With respect to the continental shelf, Article 80 provides that 'Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.'
1035. These provisions speak for themselves. In combination, they endow the coastal State'which in this case is necessarily the Philippines'with exclusive decision-making and regulatory power over the construction and operation of artificial islands, and of installations and structures covered by Article 60(1), on Mischief Reef. Within its exclusive economic zone and continental shelf, only the Philippines, or another authorised State, may construct or operate such artificial islands, installations, or structures.
1036. The Tribunal considers that China's initial structures on Mischief Reef from 1995 onwards constituted installations or structures for the purposes of Article 60(1). The Tribunal takes China at its word that the original purpose of the structures was to provide shelter for fishermen and concludes that this is an economic purpose. The Tribunal also notes that the original structures, which China declined to permit fishermen from the Philippines to use, also had the potential to interfere with the exercise by the Philippines of its rights in the exclusive economic zone. Accordingly, pursuant to Article 60 of the Convention, only the Philippines could construct or authorise such structures.
1037. China's activities at Mischief Reef have since evolved into the creation of an artificial island.
China has elevated what was originally a reef platform that submerged at high tide into an island that is permanently exposed. Such an island is undoubtedly 'artificial' for the purposes of Article 60. It is equally clear that China has proceeded without receiving, or even seeking, the permission of the Philippines. Indeed, China's conduct has taken place in the face of the
Philippines' protests. Article 60 is unequivocal in permitting only the coastal State to construct or authorise such artificial islands.
1038. In light of these provisions of the Convention, the Tribunal considers China's violation of its obligations to be manifest.
Acts in Relation to Appropriation
1039. The Tribunal now turns to the Philippines' Submission that China, through its occupation and construction activities, has unlawfully attempted to appropriate Mischief Reef.
1040. The Tribunal recalls, first, that Mischief Reef is incapable of appropriation. As the Tribunal has already concluded at paragraphs 307 to 309 above, low-tide elevations 'do not form part of the land territory of a State in the legal sense.' Rather, such features form part of the submerged landmass of a State and, in the case of Mischief Reef, fall within the legal regime for the continental shelf. In consequence, low-tide elevations, as distinct from land territory, cannot be appropriated. As the Tribunal has now found, Mischief Reef is a low-tide elevation; it follows from this that it is incapable of appropriation, by occupation or otherwise.
1041. As a low-tide elevation within the Philippines' exclusive economic zone and continental shelf, the legal relevance of Mischief Reef is that it lies within an area in which sovereign rights are vested exclusively in the Philippines and where only the Philippines may construct or authorise artificial islands. The Tribunal has already held in relation to the Philippines' Submissions No. 8 and 9 that China's actions at Mischief Reef have unlawfully interfered with the Philippines' enjoyment of its sovereign rights.
1042. Having established that Mischief Reef is not capable of appropriation and addressed the effect of China's actions on the Philippines' sovereign rights, the Tribunal sees no need to address Submission No. 12(c).
1043. Based on the considerations outlined above, the Tribunal finds that China has, through its construction of installations and artificial islands at Mischief Reef without the authorisation of the Philippines, breached Articles 60 and 80 of the Convention with respect to the Philippines' sovereign rights in its exclusive economic zone and continental shelf. The Tribunal further finds that, as a low-tide elevation, Mischief Reef is not capable of appropriation.
* * *
this page intentionally blank
1044. In this Section, the Tribunal addresses the Parties' dispute concerning China's operation of its law enforcement vessels near Scarborough Shoal. This dispute is reflected in the Philippines' Submission No. 13, which requests a declaration that:
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;
1045. In its Award on Jurisdiction, the Tribunal held that Submission No. 13 'reflects a dispute concerning the operation of China's law enforcement activities in the vicinity of Scarborough Shoal and the application of Articles 21, 24, and 94 of the Convention.'1263The Tribunal found that the Submission did not concern 'sovereignty or maritime delimitation.'1264It determined that the dispute was not barred from its consideration by any requirement of Section 1 of Part XV of the Convention. 1265The Tribunal also concluded that Article 298(1)(b) of the Convention, which excludes certain disputes concerning 'law enforcement activities' from the procedures in Section 2, was inapplicable because that exception applies only in the context of the exclusive economic zone; the present dispute relates 'principally to events that occurred in the territorial sea' of Scarborough Shoal.1266Finally the Tribunal considered its jurisdiction 'not dependent on a prior determination of sovereignty over Scarborough Shoal.' 1267Accordingly, the Tribunal found that it has jurisdiction to address the matters raised in Submission No. 13.1268
1046. The facts underlying the present Submission concern interactions between Chinese law enforcement vessels and Philippine coast guard and surveillance ships on 28 April 2012 and on 26 May 2012.
1263Award on Jurisdiction, para. 410.
1264Award on Jurisdiction, para. 410.
1265Award on Jurisdiction, para. 410.
1266Award on Jurisdiction, para. 410 (emphasis added).
1267Award on Jurisdiction, para. 410.
1268Award on Jurisdiction, para. 410.
1047. On 28 April 2012, BRP Pampanga, a Philippine Coast Guard ship conducting maritime patrol and law enforcement activities in the vicinity of Scarborough Shoal, established contact with another vessel, BRP Edsa II, in order to be relieved of its duties before returning to port. At 08:15 local time, the captain and commander of BRP Edsa II boarded the Pampanga for 'briefing and turnover'.1269
1048. At 09:00, the Philippine vessels came in contact with FLEC 310, a vessel operated by China's Fisheries and Law Enforcement Command.1270According to BRP Pampanga's after operations report, while the ship was stationary, FLEC 310 approached it 'from port to almost dead ahead at a distance of about 600 yards with speed of 20.3 knots.'1271
1049. Fifteen minutes later, at 09:15, FLEC 310 approached BRP Edsa II, 1272passing from the 'starboard quarter to the port side' of the ship at a distance of 200 yards and a speed of
20.6 knots.1273BRP Pampanga's after operations report describes the manoeuvre as creating
two-metre high waves in FLEC 310's wake that 'battered' two Philippine rubber boats, which were in the water at the time for the purpose of transferring personnel.1274At 09:25, BRP Pampanga 'turned over the area' to BRP Edsa II and began its voyage to Manila, where it arrived that night.1275
1050. On 26 May 2012, MCS 3008, a Philippines Bureau of Fisheries and Aquatic Resources vessel, approached Scarborough Shoal for the purpose of resupplying BRP Corregidor, a ship of the
1269Report from the Commanding Officer, SARV-003, Philippine Coast Guard, to Commander, Coast Guard District Northwestern Luzon, Philippine Coast Guard (28 April 2012), para. 5.45 (Annex 78) (hereinafter 'SARV Coastguard Report of 28 April 2012').
1270SARV Coastguard Report of 28 April 2012, paras. 5.46, 7.1.
1271SARV Coastguard Report of 28 April 2012, paras. 5.46, 7.1.
1272SARV Coastguard Report of 28 April 2012, paras. 5.46, 7.1.
1273SARV Coastguard Report of 28 April 2012, para. 5.46.
1274SARV Coastguard Report of 28 April 2012, paras. 5.46, 7.1.
1275SARV Coastguard Report of 28 April 2012, paras. 5.46-5.48.
Philippine Coast Guard.1276At approximately 15:50 local time and having come within seven nautical miles of Scarborough Shoal, MCS 3008 was approached by CMS 71.1277
1051. According to the report of the Philippine Coast Guard officers aboard the MCS 3008, CMS 71 'increased speed and at less than 100 yards' from the MCS 3008 and 'attempted to cross this unit's port bow.'1278MCS 3008 'responded by increasing speed to 20 knots and altering course to the starboard' and then passing to the rear of the CMS 71 'in order to evade a possible impact.'1279
1052. Once it 'was able to evade the first dangerous maneuver of CMS 71,' MCS 3008 reported, 'the same vessel immediately swinged to its starboard and again attempted to cross [the] starboard bow of [MCS 3008].'1280In response, and 'in order to avoid a possible collision ensued by this second intentional act of CMS 71,' MCS 3008 'immediately maneuvered hard port' and 'passed through the rear of [CMS 71].'1281
1053. After steering clear of the 'deliberate maneuvers of CMS 71,' MCS 3008 reported that it was approached by another Chinese vessel, FLEC 303, which 'steered towards our position and . . . aimed to cross [MCS 3008]'s starboard bow.' 1282MCS 3008 'instantly . . . reacted by increasing speed to 22 knots and swerving towards the rear of FLEC 303' in order to avoid a collision.1283
1054. Following these incidents, MCS 3008 continued toward BRP Corregidor. During this time, MCS 3008 was pursued by three Chinese vessels: FLEC 303, CMS 71, and CMS 84 (a third Chinese vessel, also belonging to CMS).1284All three Chinese vessels pursued MCS 3008 until the latter approached BRP Corregidor. While MCS 3008 was alongside BRP Corregidor, CMS 84 'passed through starboardside of our position at a distance of less than 100 yards.'1285According to MCS 3008, CMS 84 'eventually stopped and positioned on the port quarter at a
1276Report 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), para. 1.d (Annex 82) (hereinafter 'Arunco Report of 28 May 2012').
1277Arunco Report of 28 May 2012, para. 1.a.
1278Arunco Report of 28 May 2012, para. 1.a.
1279Arunco Report of 28 May 2012, para. 1.a.
1280Arunco Report of 28 May 2012, para. 1.b.
1281Arunco Report of 28 May 2012, para. 1.b.
1282Arunco Report of 28 May 2012, para. 1.c.
1283Arunco Report of 28 May 2012, para. 1.c.
1284Arunco Report of 28 May 2012, para. 1.d.
1285Arunco Report of 28 May 2012, para. 1.e.
distance of approx. 500 yards from our position.'1286At the same time, a fourth Chinese vessel, FLEC 301, 'was stationed at the port beam with a distance of about one thousand (1,000) yards.'1287
1055. After checking the tidal level, MCS 3008 proceeded towards the entrance to the lagoon of Scarborough Shoal.1288As MCS 3008 pulled away from BRP Corregidor, CMS 84 again began to chase. According to the officers of MCS 3008, 'sensing that CMS 84 was aiming to cross through the bow of this vessel, this unit increased speed which eventually caused the Chinese vessel to be left behind by a few yards.'1289
1056. As MCS 3008 continued toward the lagoon entrance, three Chinese vessels, FLEC 303, CMS 71, and FLEC 306 approached it. As reported by MCS 3008,
when FLEC 303 was already about 50 yards from this vessel, said Chinese vessel immediately altered course as if crossing to our starboard bow. However, when FLEC 303 was already dead ahead of this unit, the Chinese vessel decreased speed and established a blocking position. [MCS 3008] right away swerved towards the rear of the Chinese vessel to evade a possible impact.1290
1057. Thereafter, MCS 3008 'sighted CMS 71 moving fast towards our position. Again, because of our speed, CMS 71 was only able to get near our position from a distance of approximately 70 yards on our portside.'1291
1058. At the entrance to the lagoon, MCS 3008 encountered FLEC 306, along with three Chinese fishing vessels. MCS 3008 described this incident as follows:
On our route towards the basin, this vessel sighted three (3) Chinese fishing vessels and FLEC 306 on a blocking position near the lone entrance inside the shoal. Furthermore, three (3) Chinese service ships were now chasing this unit with CMS 71 joining CMS 84 and FLEC 303.
After being able to position [a] few yards from the entrance of the shoal and reviewing our prepared safe way points, this unit decided to enter the shoal's basin by passing in between the three (3) Chinese fishing vessels (CFV's) and FLEC 306 which was fast moving towards our location. This unit considered such path as the only possible way towards the basin because of our safe distance from the CFV's and FLEC 306 in which, all the while seemed to have given way for the entry of this vessel inside. However, as this unit was on its way towards the basin, ships personnel sighted two (2) mooring lines which was planted by CFV's obviously intended to impede our movement towards the shoal's basin. While this unit stopped engines and then maneuvered backwards to avoid the lines, crew of the CFV's from which the line came from and FLEC 306 suddenly echoed cheers and clapped
1286Arunco Report of 28 May 2012, para. 1.e.
1287Arunco Report of 28 May 2012, para. 1.e.
1288Arunco Report of 28 May 2012, para. 1.f.
1289Arunco Report of 28 May 2012, para. 1.g.
1290Arunco Report of 28 May 2012, para. 1.h.
1291Arunco Report of 28 May 2012, para. 1.i.
hands. At this point, FLEC 306 was already on a blocking position [a] few yards dead ahead of this unit.
With the lines planted by the CFV's, FLEC 306 posing a blockade and three (3) Chinese service ships positioned at the rear, it was evident that all efforts by the Chinese vessels were already employed in order to obstruct our entry to the shoal's basin. Nevertheless, with the sheer determination to comply with the directive from higher-ups for this vessel to go inside the shoal's basin coupled with the courage that the officers and crew exuded on such situation, this unit sped up, maneuvered hard to the starboard and swerved toward the astern of FLEC 306.
The scenario went worse this time with FLEC 306 going all engines back and determined to ram our vessel. Nevertheless, this unit continued to employ speed and immediately maneuver[ed] hard left which was just enough to dodge from the deliberate intention of said FLEC which was just about 10 meters away on our portside and at the same time, to keep this vessel safe from a shallow area approximately 25 yards away on the starboardside. . . .
After avoiding the chase, harassment and intended sabotage, finally, this unit was able to enter the shoal basin safely and anchored 1292
1059. The Philippines alleges that China has operated its law enforcement vessels in a dangerous manner, causing 'serious risk[] of collision' to Philippine vessels navigating in the vicinity of Scarborough Shoal.1293In consequence, the Philippines submits that China has breached its obligations relating to safe navigation under Articles 94 and 21 of the Convention and related provisions in the Convention on the International Regulations for Preventing of Collisions at Sea, 19721294(the 'COLREGS').1295
1060. The Philippines submits, first, that China's conduct in the territorial sea of Scarborough Shoal is governed and constrained by the general requirements of flag States under the Convention. In this regard, it recalls the Fisheries Advisory Opinion, in which the International Tribunal for the Law of the Sea held that the Convention 'contains provisions concerning general obligations' which must be met by flag States 'in all marine areas regulated by the Convention,' including those regulated by Articles 91, 92, and 94 of the Convention.1296It follows, in the Philippines'
1292Arunco Report of 28 May 2012, paras. 1.j-1.n.
1293Memorial, para. 6.114.
1294Convention on the International Regulations for Preventing Collisions at Sea, 20 October 1972, 1050 UNTS 1976 (hereinafter 'COLREGS').
1295Memorial, para. 6.114.
1296Merits Hearing Tr. (Day 3), pp. 56-57; Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, para. 111.
view, that China has obligations under the Convention whenever its vessels, 'including those operated by CMS and FLEC . . . are operated in the territorial sea of Scarborough Shoal or anywhere else.'1297In other words, the obligations of a flag State apply 'regardless of where the ships were located' at any particular point in time.1298
1061. The Philippines recalls that Article 94(3) of the Convention requires flag States to 'take such measures . . . as are necessary to ensure safety at sea,' including measures concerning 'the use of signals, the maintenance of communications and the prevention of collisions.' 1299The Philippines also refers to Article 94(5), which clarifies the scope of the flag State's duties in the following terms:
In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.1300
1062. Finally, the Philippines notes that Article 21(4) of the Convention also refers to 'international regulations relating to the prevention of collisions at sea.' 1301
1063. The correct interpretation of the aforementioned provisions, in the Philippines' view, includes the COLREGS as one of the 'generally accepted international regulations' to which flag States are required to conform.1302The International Maritime Organisation, for example, recognises the COLREGS as one of its conventions that 'may, on account of their world-wide acceptance, be deemed to fulfil the requirement of general acceptance' for the purposes of Article 94(3).1303
1064. The Philippines submits that while Article 21(4) technically applies only to foreign ships in innocent passage, if the coastal State fails to ensure its vessels respect COLREGS in the territorial sea and subsequently endangers the navigation of foreign ships in the territorial sea, this would constitute a violation of its duties under Article 24 to refrain from hampering innocent passage and to publicise dangers to navigation.1304
1297Merits Hearing Tr. (Day 3), pp. 57, 60.
1298Merits Hearing Tr. (Day 3), p. 56.
1299Convention, art. 94(3)(c).
1300Merits Hearing Tr. (Day 1), p. 72.
1301Memorial, para. 6.131.
1302Memorial, para. 6.131; Merits Hearing Tr. (Day 3), p. 59-60; W. Tetley, International Maritime and Admiralty Law (2002), p. 237.
1303International Maritime Organization, Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, Doc. LEG/MISC/3/Rev. 1 (6 January 2003), pp. 10-11.
1304Memorial, para. 6.133.
1065. According to the Philippines, the COLREGS are legally binding rules.1305By their terms, they extend to 'all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels'1306and apply to 'the high seas, the EEZ, the territorial sea, archipelagic waters, [and] straits used for international navigation and archipelagic sea lanes.'1307They therefore bind China with respect to its vessels operating in the vicinity of Scarborough Shoal.
1066. While the Philippines acknowledges that Rule 2(b) of the COLREGS recognises 'special circumstances' in which a departure from the rules may be 'necessary to avoid immediate danger,' it maintains that the exception 'does not undermine the otherwise mandatory nature of the regulations.'1308It notes the practice of national courts in limiting that exception only to circumstances raising 'immediate' danger, rather than 'generic special circumstances'.1309In any event, the Philippines considers the exception in Rule 2(b) to be inapplicable in the present case.1310
1067. The Philippines submits that China has violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS.1311In so doing, the Philippines relies on the expert report of Professor Craig H. Allen (the 'Allen Report').1312Professor Allen is a Professor of Law and Adjunct Professor of Marine Affairs at the University of Washington in Seattle, and served for 21 years with the United States Coast Guard. Professor Allen produced his expert report pro bono.1313Relying on the contemporaneous reports and dispatches provided to him by the Philippines, Professor Allen considers China to have violated Rules 2, 6, 8, and 16 of the COLREGS on both occasions comprising the basis for Submission No. 13.
1305Merits Hearing Tr. (Day 3), pp. 61-62.
1306Memorial, para. 6.133; COLREGS, Rule 1(a).
1307Memorial, para. 6.133 quoting S. Rosenne & L. Sohn (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. V, p. 775 (M. Nordquist, gen. ed. 2012).
1308Merits Hearing Tr. (Day 3), p. 62.
1309Merits Hearing Tr. (Day 3), p. 62; see, e.g., Crowley Marine Services Inc. v. Maritrans Inc., 447 F.3d 719, 725 (9th Cir. 2006).
1310Merits Hearing Tr. (Day 3), p. 62.
1311Memorial, para. 6.140.
1312Report of Craig H. Allen, p. 4 (19 March 2014) (Annex 239) (hereinafter the 'Allen Report').
1313Allen Report, p. 1.
1068. The Philippines argues first that China is in breach of the general principle of responsibility for the prevention of collisions provided in Rule 2. That provision states:
Rule 2. RESPONSIBILITY
Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.
In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger.1314
1069. The Philippines argues that the conduct of Chinese vessels in both the 28 April and 26 May 2012 incidents place China in breach of Rule 2. Relying on the Allen Report, the Philippines describes the conduct of FLEC 310 (on 28 April 2012) and of CMS 71, FLEC 303, and FLEC 306 (on 26 May 2012) as having 'intentionally endanger[ed] another vessel through high speed 'blocking' or harassment maneuvers.'1315With regard to Rule 2, Professor Allen states that Chinese vessels 'demonstrated serious and apparently intentional breaches' of the requirement that ships take 'precautions as are required by the ordinary practice of seamen.'1316Based on an analysis of the vessels' conduct, the Allen Report concludes that the Chinese vessels showed 'a flagrant disregard of the tenets of good seamanship'1317on both occasions.
1070. Second, the Philippines maintains that the Chinese vessels breached Rule 6 of the COLREGS, requiring vessels to 'proceed at a safe speed so that [they] can take proper and effective action to avoid collision.' 1318Professor Allen considers Rule 6 to have been violated when Chinese vessels passed BRP Pampanga and BRP Edsa II at distances of 600 and 200 yards and speeds of over 20 knots.1319The Philippines notes that the interpretation of the term 'safe speed' is not specified and is thus contingent on the particular facts of each case, but maintains that the circumstances of the two incidents leave little doubt that China failed to ensure that its vessels 'proceed[ed] at a safe speed' in accordance with the regulation. 1320The failure, in the
1314Memorial, para. 6.134; COLREGS, Rule 2.
1315Memorial, para. 6.141; Allen Report, p. 4.
1316Allen Report, p. 4.
1317Allen Report, p. 4.
1318Memorial, para. 6.135; Merits Hearing Tr. (Day 3), p. 66; COLREGS, Rule 6.
1319Allen Report, p. 4.
1320Merits Hearing Tr. (Day 3), pp. 66-67; Memorial, para. 6.136; A.N. Cockcroft & J.N.F. Lameijer, A Guide to the Collision Avoidance Rules: International Regulations for Preventing Collisions at Sea (7th ed., 2011), p. 18; Allen Report, p. 4.
Philippines' view, was further aggravated by the size of the Chinese vessels and the wake created by the manoeuvres, heightening the threat to the Philippine ships and their crews.1321
1071. Third, the Philippines argues that the Chinese vessels breached Rules 7 and 8 of the COLREGS, which set out the principles governing the risk of collision and avoidance of collision, respectively.1322
1072. In the Philippines' view, the Chinese vessels failed to take the necessary steps in accordance with Rule 8, which requires evasive action to have 'due regard to the observance of good seamanship' and achieve passing at a 'safe distance.'1323Although the COLREGS do not define what constitutes a 'safe distance' and the Philippines recognises the determination is context-specific, it submits that the term implies that 'the passing distance must be large enough to leave a margin for error and allow for the unexpected,' such as to provide for a 'margin for human error or mechanical malfunction.'1324The Philippines submits, supported by the Allen Report, that the Chinese vessels 'not only fail[ed] to take actions to avoid collision but [took] actions that made collision substantially more likely.'1325That no collision actually occurred during the incidents in question does nothing to diminish China's culpability, in the Philippines' view, since it considers both rules to impose an obligation of conduct, rather than result.1326
1073. Finally, the Philippines, supported by the Allen Report, alleges breach of Rules 15 and 16 of the COLREGS, both of which it considers to have been violated. Rule 15 states:
When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.1327
The Philippines' notes that Rule 15 requires that 'the vessel on the left . . . turn away'1328and submits that, when CMS 71 approached MCS 3008 at speed from the left (i.e., with MCS on the starboardside of CMS 71) on 26 May 2012 'it was the 'give-way vessel' according to Rule 15.'1329Nevertheless, CMS 71 attempted to cross ahead of the Philippine vessel, rather than avoiding such a manoeuvre as called for by Rule 15. In the context of Rule 15, Professor
1321Allen Report, p. 4; Merits Hearing Tr. (Day 3), p. 67.
1322Memorial, para. 6.137.
1323COLREGS, Rules 7-8.
1324Allen Report, p. 5.
1325Memorial, para. 6.144; see also Allen Report, p. 5.
1326Merits Hearing Tr. (Day 3), p. 64; Allen Report, p. 4.
1327Memorial, para. 6.139; Hearing Tr. (Day 3), p. 67; COLREGS, Rule 15.
1328Merits Hearing Tr. (Day 3), p. 67.
1329Memorial, para. 6.145; Allen Report, p. 5.
Allen principally notes the failure of CMS 71 to give MSC 3008 right of way by attempting to cut across the latter's bow on 26 May 2012.1330
1074. Additionally, as the 'give-way vessel', the Philippines submits that CMS violated Rule 16, regarding the obligations of the give-way vessel, insofar as 'CMS 71 was . . . under the obligation to 'keep out of the way' of the MCS 3008, which she did not do.'1331Professor Allen notes that, by 'intentionally closing [in] on [the Philippine] vessels' in an attempt to block their progress toward Scarborough Shoal, the Chinese vessels'FLEC 310 in particular''violated Rule 16's requirement to 'so far as possible, take early and substantial action to keep well clear'.'1332The Philippines likewise argues that 'during the incident of 28 April 2012, the FLEC 310's approach toward Philippine vessels made it the 'give-way vessel', requiring that it 'so far as possible, take early and substantial action to keep well clear'.'1333
1075. Professor Allen recognises that the operational requirements of law enforcement ships (such as intercepting a vessel) may stand in 'occasional tension' with the COLREGS. He cautions, however, that Rule 2(b) permits only limited exception from Rule 16, to 'avoid immediate danger'.1334Professor Allen finds no such danger justifying a departure from the regulations. He concludes that the incidents alleged by the Philippines 'apparently involved intentional violations of the most basic rules for preventing collisions at sea' and would be 'condemned by all professional mariners.'1335
1076. China has made no statements as to the specific matters raised in the Philippines' Submission No. 13, concerning the incidents in the vicinity of Scarborough Shoal on 28 April and 26 May 2012. It has, however, made statements concerning the presence of Chinese vessels at Scarborough Shoal, both generally and in response to Philippine diplomatic notes concerning the incidents.
1077. On 30 April 2012, the Department of Foreign Affairs of the Philippines submitted a Note Verbale to the Embassy of the People's Republic of China in Manila expressing the Philippines'
1330Allen Report, p. 5.
1331Memorial, para. 6.145.
1332Allen Report, p. 5 (emphasis in original).
1333Memorial, para. 6.146; Allen Report, p. 5. 1334Allen Report, pp. 5-6; COLREGS, Rule 2(b). 1335Allen Report, p. 6.
'grave concern over the provocative and extremely dangerous maneuvers' committed by Chinese vessels at Scarborough Shoal.1336The Philippines referred to the incident on 28 April 2012 and requested China 'to instruct its ships to observe the [COLREGS].'1337
1078. In response to this and several other Philippine diplomatic notes expressing 'grave concern' over the conduct of Chinese vessels in the area,1338on 25 May 2012, China replied that it 'does not accept the contents' of the Philippines' notes and asserted that the conduct of its vessels was justified. China stated:
The various jurisdiction measures adopted by the Chinese government over Huangyan Island [Scarborough Shoal] and its waters, and activities by Chinese ships, including government public service ships and fishing boats, in Huangyan Island and its waters are completely within China's sovereignty.
. . .
The Chinese side once again urges the Philippine side to concretely respect China's territorial sovereignty over Huangyan Island, immediately pull out all Philippine ships from the Huangyan Island waters and desist from disturbing the operation of Chinese fishing boats and law enforcement activities by China's public service ships.1339
1079. While China has responded to specific Philippine allegations relating to the conduct of Chinese vessels at Scarborough Shoal, it has specifically addressed only an encounter that occurred on 10 April 2012.1340For example, in its Position Paper, China maintained that the presence of Philippine naval vessels at Scarborough Shoal on 10 April 2012 constituted 'provocations' that 'forced [China] to take response measures to safeguard its sovereignty.'1341More generally, China has stated that 'the legality of China's actions in the waters of the Nansha Islands and
1336Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 12-1222 (30 April 2012) (Annex 209).
1337Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassy of the People's Republic of China in Manila, No. 12-1222 (30 April 2012) (Annex 209).
1338Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of People's Republic of China in Manila, No. 12-1371 (21 May 2012) (Annex 688). See also the largely identical Note Verbale from the Department of Foreign Affairs, Republic of the Philippines, to the Embassies of ASEAN Member States in Manila, No. 12-1372 (21 May 2012) (Annex 210). The Philippines submitted several other diplomatic notes in April and May 2012 relating to China's conduct at Scarborough Shoal generally. See, e.g., Note Verbale from the Department of Foreign Affairs of the Republic of Philippines to the Embassy of People's Republic of China in Manila, No. 12-1304 (14 May 2012) (Annex 669);
1339Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (12) PG-239 (25 May 2012) (Annex 211).
1340See, e.g., Note Verbale from the Embassy of the People's Republic of China in Manila to the Department of Foreign Affairs, Republic of the Philippines, No. (12) PG-239 (25 May 2012) (Annex 211).
1341China's Position Paper, para. 48.
Huangyan Dao rests on both its sovereignty over relevant maritime features and the maritime rights derived therefrom.'1342
1080. As far as the Tribunal is aware, China has not made specific statements with respect to the incidents of 28 April and 26 May 2012. Accordingly, the Tribunal does not have explicit Chinese statements concerning the incidents alleged by the Philippines in its Submission No. 13. However, the Tribunal considers China's statements described above as indicating that it considers its actions at Scarborough Shoal to have been generally lawful.
1081. The COLREGS, entered into force on 15 July 1977. With 156 contracting parties representing more than 98 percent of world tonnage, the COLREGS comprise one of the most widely adopted multilateral conventions in force. Both China and the Philippines are parties to the COLREGS.1343
1082. Although the Philippines did not become a party to the COLREGS until 2013, in assessing the Philippines' Submission No. 13 the Tribunal considers the COLREGS to bind both Parties relating to the conduct of their respective vessels by virtue of Article 94 of the Convention. Article 94(1) of the Convention requires flag States to effectively exercise their 'jurisdiction and control' in administrative, technical, and social matters over ships flying their flag.1344Subsection 3 of that article clarifies the scope of flag States' duties, requiring them to 'take such measures . . . as are necessary to ensure safety at sea,' including measures concerning, inter alia, 'the use of signals, the maintenance of communications and the prevention of collisions.'1345The precise scope of those obligations is clarified in Article 94(5):
In taking the measures called for in paragraph[] 3 . . . each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.1346
1342China's Position Paper, para. 26.
1343China joined in 1980, and the Philippines in 2013. See International Maritime Organisation, 'Status of Conventions' (2 August 2014); Maritime Industry Authority of the Philippines, 'List of IMO Conventions Ratified by the Philippines,' available at <www.marina.gov.ph/sectoral/ listimoconventions.html>.
1344Convention, art. 94(1).
1345Convention, art. 94(3)(c).
1083. In the Tribunal's view, Article 94 incorporates the COLREGS into the Convention, and they are consequently binding on China. It follows that a violation of the COLREGS, as 'generally accepted international regulations' concerning measures necessary to ensure maritime safety, constitutes a violation of the Convention itself. With this in mind, the Tribunal turns to the independent expert opinion and factual record regarding the two incidents and to an evaluation of China's conduct in light of the applicable regulations.
1084. In assessing the present Submission, the Tribunal takes into account the Allen Report, submitted by the Philippines, as well as the report of 15 April 2016 by Captain Gurpreet S. Singhota,1347who was appointed by the Tribunal in accordance with Article 24 of the Rules of Procedure in order to obtain an independent expert assessment of the Philippines claims. Captain Singhota's experience includes 26 years of service with the International Maritime Organization's Maritime Safety Division, Sub-committee on Safety of Navigation, and other departments, as well as 14 years of seagoing experience. Captain Singhota certified that he 'is, and shall remain, impartial and independent with respect of each of the Parties.'1348
1085. After a review of the factual record, Captain Singhota concludes that China has breached its obligations under Rules 2, 6, 8, 15, and 16 of the COLREGS.
1086. With respect to the alleged incidents of 28 April 2012, Captain Singhota finds that high-speed manoeuvring by FLEC 310 in the vicinity of BRP Pampanga, veering away a distance of approximately 0.32 nautical miles from the Philippine vessel, exemplifies 'unprofessional ship handling . . . totally inconsistent with the practice of good seamanship.' 1349In such circumstances, a 'momentary decision-making lapse,' Captain Singhota suggests, could have resulted in a 'catastrophic collision'.1350He therefore considers FLEC 310's conduct to have violated Rule 2(a) of the COLREGS. Noting FLEC 310's high speed at the time of its encounters with BRP Pampanga and Edsa II (20.3 and 20.6 knots, respectively), the report also identifies a breach of Rule 6 relating to safe speed in the prevailing situations.1351
1347Captain Gurpreet S. Singhota, Report of the International Navigational Safety Expert appointed by the Permanent Court of Arbitration, The Hague, The Netherlands (15 April 2016) (hereinafter 'Singhota Report').
1348Terms of Reference for Expert, Captain Gurpreet S. Singhota, 18 March 2016; Declaration of Captain Singhota, 24 February 2016.
1087. Captain Singhota attributes two additional breaches to FLEC 310's conduct under Rules 8 and
16 of the COLREGS. He explains that where risk of collision exists, Rule 8 imposes obligations on give-way vessels to 'take timely action to keep clear' and to maintain a safe distance from the other ship. Observing that thresholds for 'safe' distances vary and are context-specific, the report concludes that FLEC 310's closing in, within 600 yards
(0.296 nautical miles) and 200 yards (0.098 nautical miles), respectively, of the Philippine vessels 'certainly' fell short of the requirement of passing at a safe distance.1352Because Rule 16 requires give-way vessels to take 'early and substantial' action to maintain a safe distance, the report also considers that provision to have been violated over the course of the encounter.1353
1088. With respect to the alleged incidents of 26 May 2012, Captain Singhota considers the 'high-speed blocking' manoeuvres of FLEC and CMS vessels vis-''-vis MCS 3008 to constitute a 'total disregard of good seamanship and neglect of any precaution, which may be required by the ordinary practice of seamen.'1354In particular, the report deems the conduct of CMS 71, FLEC 303, and FLEC 306, and especially CMS 71's attempt to cut across the bow of MCS 3008 at a distance of fewer than 100 yards (0.049 nautical miles), to have breached Rules 2, 6, and 8 of the COLREGS.1355The report considers CMS 71 'unnecessarily' attempting to cut across the bow of MCS 3008 also to violate Rule 15:
To cross another vessel's bow unnecessarily, where collision is probable, or even only possible, is an unseamanlike manoeuvre, and apart from the regulations would be held to be negligent in fact and in law.1356
Finally, Captain Singhota considers that the actions of the Chinese vessels 'created situations that required them to assume the role of the give-way vessel.'1357As such, Rule 16 required them to 'so far as possible, take early and substantial action to keep well clear.'1358
1089. Captain Singhota concludes that the Chinese manoeuvres on 26 April and 28 May 2012 'demonstrated a complete disregard for the observance and practice of good
1352Singhota Report, p. 5, paras. 13-14.
1353Singhota Report, p. 5, para. 15.
1354Singhota Report, p. 6, para. 17.
1355Singhota Report, pp. 6-7, paras. 19-21.
seamanship including the ordinary practice of seamen but most importantly, a total disregard
for the observance of the collision regulations.'1359
1090. Having determined that Article 94 of the Convention incorporates the COLREGS into the duties of flag States by reference, the Tribunal must interpret and apply the COLREGS in order to make decisions as to the Philippines' Submission No. 13.
1091. As a preliminary matter, the Tribunal observes that the conduct of each of the Chinese vessels in question'CMS 71, CMS 84, FLEC 303, FLEC 306, and FLEC 310'is attributable to China. All Chinese-flagged vessels involved in the incidents alleged by the Philippines on 28 April and 26 May 2012 belonged to one of two agencies: CMS or the FLEC. Accordingly, because the conduct complained of was committed by vessels falling directly under the command and control of the Chinese Government, the Tribunal considers the vessels' behaviour to constitute official acts of China. Their conduct is automatically attributable to China as such.
1092. Having regard to the entirety of the record before it, the Tribunal determines that the activities of Chinese vessels implicated in Submission No. 13 constituted violations of the COLREGS.
1093. The Tribunal notes that the evidence demonstrates that FLEC 310 passed within 200 yards of BRP Edsa II and within 600 yards of BRP Pampanga, in both cases at a speed of more than 20 knots. Similar conduct occurred on 26 May 2012, during which CMS 71 and FLEC 303 attempted to cut across the bow of MCS 3008 on three occasions, once at a distance of less than 100 yards.1360
1094. Such conduct is irreconcilable with an obligation of responsible navigation. In this regard, the Tribunal accepts Captain Singhota's characterisation of the Chinese vessels' conduct as having been in 'total disregard of good seamanship and neglect of any precaution.'1361It follows that Rule 2(a) was breached by each of the aforementioned incidents.
1095. In this connection, moreover, the Tribunal considers the exception posed by Rule 2(b), permitting departure from the COLREGS where 'necessary to avoid immediate danger,' inapposite to the case at hand. Quite apart from the Philippines' argument that national courts,
1359Singhota Report, p. 10, para. 28 (emphasis in original).
such as those in the United States,1362construe the exception narrowly, the high threshold established by the exception cannot apply to the facts as presented. If anything, the record suggests that the Chinese manoeuvres themselves created an immediate danger, rather than having been undertaken in response to a pre-existing threat.1363Additionally, while the Tribunal is aware that China's statements suggest that its actions were justified as part of general law enforcement activities in the vicinity of a feature which China considers to comprise part of its sovereign territory, the Tribunal also recognises that, where the operational requirements of law enforcement ships stand in tension with the COLREGS, the latter must prevail. 1364Accordingly, the Tribunal can find no danger justifying a departure from the regulations under Rule 2(b).
1096. The Tribunal turns next to Rule 6 of the COLREGS, which requires ships to preserve the means to avoid collision when circumstances so require. It provides, in relevant part, that:
Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions.1365
1097. On 28 April 2012, FLEC 310 passed by BRP Pampanga at 20.3 knots and Edsa II at 20.6 knots (see paragraphs 1048 to 1049 above). The COLREGS do not define what constitutes a 'safe speed', and the meaning and application of the phrase remains dependent on the particular facts of each case, including factors such as the vessels' size and probability of harm. In this instance, however, both Professor Allen and Captain Singhota 1366consider the incidents described above to have occurred at unsafe speeds. The Tribunal concurs with that view and determines that the Chinese vessels' actions breached Rule 6.
1098. Next, the Tribunal turns to Rules 7 and 8 of the COLREGS. Rule 7(a) provides: 'Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.'1367Both experts conclude that such a risk existed on 28 April and 26 May 2012. The Allen Report concludes a breach of Rule 7 occurred in each of three instances: (a) FLEC 303 closing at high speed within 600 yards of BRP Pampanga and passing BRP Edsa II within 200 yards;
1362See, e.g., Merits Hearing Tr. (Day 3), p. 62; Crowley Marine Services Inc. v. Maritrans Inc., 447 F.3d 719, 725 (9th Cir. 2006).
1363See Allen Report, p. 6.
1364See, e.g., Allen Report, pp. 5-6; COLREGS, Rule 2(b).
1365COLREGS, Rule 6(a).
1366Allen Report, p. 4; Singhota Report, pp. 4, 6.
1367COLREGS, Rule 7(a).
dangerous manoeuvres undertaken by CMS 71, FLEC 303, and CMS 84, which passed the Philippine vessels at distances of 100 or fewer yards; and (c) FLEC 306 nearly 'ramming' MCS 3008. 1368The Singhota Report reaches a similar conclusion, although its analysis primarily evaluates the incidents under the framework of Rule 8 (which presumes that a risk of collision exists).1369Under these circumstances, the Tribunal considers the 'risk' identified under Rule 7 to have been clearly established.
1099. Having established that a 'risk of collision' existed, the Tribunal turns to Rule 8, which governs the means by which vessels may act to avoid such risks, as follows:
Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.
. . .
Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.1370
1100. Rule 8 of the COLREGS does not define what constitutes a 'safe distance'. Professor Allen suggests that the term be read to imply that 'the passing distance . . . be large enough to leave a margin for error and allow for the unexpected.'1371Captain Singhota proposes that a 'safe distance' must allow for 'human error on the bridge and engine or [for] steering gear failure at a critical phase of the maneuver,' as well as for any incidental effects of the 'interaction' between passing vessels.1372In any event, the Tribunal considers the conduct of FLEC 303, FLEC 306 FLEC 310, and CMS 71 all to fall short of any reasonable definition of a safe distance.
1101. Indeed, far from avoiding a collision, the actions of the Chinese ships made the possibility of a collision substantially more likely. 1373That fact alone'independent of any question as to whether a collision, whether through the crew's effort or by good fortune, was ultimately averted'suffices to demonstrate a violation of the COLREGS. For the same reasons as those underlying its conclusion with respect to Rule 2(a), the Tribunal considers the other requirement
1368Allen Report, p. 5.
1369Singhota Report, p. 5, 7, paras. 13, 21.
1370COLREGS, Rules 8(a), 8(d).
1371Allen Report, p. 5.
1372Singhota Report, p. 5, para. 13; see also Singhota Report, p. 4, para. 8.
1373See Allen Report, p. 5; Singhota Report, p. 4, para. 8 ('It is quite likely that if there had been any momentary decision-making lapse on part of the bridge team, engine or steering gear failure, a catastrophic collision would have been the inevitable result.').
imposed by Rule 8, namely 'due regard to the observance of good seamanship,' also to have been violated.
1102. Finally, the Tribunal considers Rules 15 and 16, relating to right-of-way. Rule 15 states that when two power-driven vessels are crossing so as to involve a risk of collision, the vessel 'which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.'1374
1103. Rule 16, in turn, requires that '[e]very vessel which is directed . . . to keep out of the way of another vessel shall, so far as possible, take early and substantial action to keep well clear.'1375
1104. On 28 April 2012, FLEC 310 approached BRP Pampanga to within 600 yards; fifteen minutes later, it passed BRP Edsa II from the starboard quarter to the port side at a distance of 'barely 200 yards'.1376In other words, rather than abiding by the applicable regulations by 'keep[ing] out of the way' and avoiding the other ship, FLEC 310 did the opposite. The attempt by CMS 71, on 26 May 2012, to cut across the bow of MCS 3008 from the port (left) side at a distance of merely 100 yards admits of the same error. Accordingly, both incidents constituted a breach of the Rules of the COLREGS in this respect.
1105. In light of the foregoing analysis, the Tribunal considers China to have repeatedly violated the Rules of the COLREGS over the course of the interactions described by the crew of the Philippine vessels and as credibly assessed in the two expert reports. Where Chinese vessels were under an obligation to yield, they persisted; where the regulations called for a safe distance, they infringed it. The actions are not suggestive of occasional negligence in failing to adhere to the COLREGS, but rather point to a conscious disregard of what the regulations require. The various violations are underscored by factors such as the large disparity in size of the Chinese and Philippine vessels, the shallow waters in which the incidents took place, and the creation of a two metre-high wake causing additional risk to the Philippines' crews.1377
1106. The Tribunal notes that, in addition to the COLREGS themselves, the Singhota Report identifies Resolution MSC.303(87) adopted by the International Maritime Organisation's Maritime Safety
1374COLREGS, Rule 15.
1375COLREGS, Rule 16.
1376See Singhota Report, p. 5, para. 14.
1377Allen Report, p. 4.
Committee Resolution on 17 May 2010, entitled 'Assuring safety during demonstrations, protests or confrontations on the high seas.'1378The resolution calls upon governments to urge:
persons and entities under their jurisdiction to refrain from actions that intentionally imperil human life, the marine environment, or property during demonstrations, protests or confrontations on the high seas; [and]
. . .
(3) all vessels, during demonstrations, protests or confrontations on the high seas, to comply with COLREG and SOLAS by taking all steps to avoid collisions and safeguard navigation, security and safety of life at sea.1379
While this resolution operates in the context of the high seas, the text is of interest insofar as it confirms the priority of maritime safety even in situations of confrontation.
1107. As the Allen Report makes clear, 'operational requirements' of law enforcement vessels such as those of CMS and FLEC occasionally stand in tension with the obligations imposed by the COLREGS, without diminishing the nature or binding force of their provisions.1380In this regard, the Tribunal having reviewed the record relevant to Submission No. 13 and having considered possible circumstances precluding wrongfulness has found no convincing evidence that the aforementioned violations are excusable by any mitigating circumstances.
1108. The Tribunal emphasises again that its determinations in Submission No. 13 do not depend upon, and do not involve any finding of sovereignty over Scarborough Shoal and its waters. The same conclusions about violations of the navigational safety provisions of the Convention would be reached irrespective of which State has sovereignty over Scarborough Shoal. The Tribunal does not purport to make a finding on that question.
1109. Based on the considerations outlined above, the Tribunal finds that China has, by virtue of the conduct of Chinese law enforcement vessels in the vicinity of Scarborough Shoal, created serious risk of collision and danger to Philippine vessels and personnel. The Tribunal finds China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS and, as a consequence, to be in breach of Article 94 of the Convention.
1378Resolution MSC.303(87), available at <www.imo.org/en/knowledgecentre/indexofimoresolutions/ maritime-safety-committee-(msc)/documents/msc.303(87).pdf#search=msc%2e303%2887%29>; see also Singhota Report, Annex 5.
1379Resolution MSC.303(87), art. 1/c operative paragraph 3, available at <www.imo.org/en/ knowledgecentre/indexofimoresolutions/maritime-safety-committee-(msc)/documents/msc.303(87)
.pdf#search=msc%2e303%2887%29>.
1380Allen Report, pp. 5-6; COLREGS, Rule 2(b).
