The Hague Oral Argument
Content
Below is the full text of Philippine Foreign Secretary Albert del Rosario's statement before an arbitral
tribunal at The Hague, The Netherlands, on the Philippines' case against China. Del Rosario delivered
this speech – originally titled "Why the Philippines Brought This Case to Arbitration and Its Importance to
the Region and the World" – on July 7, the first day of oral hearings at The Hague.
1. Mr President, distinguished Members of the Tribunal, it is a great honor to respectfully appear before
you on behalf of my country, the Republic of the Philippines. It is indeed a special privilege to do so in a
case that has such importance to all Filipinos and – if I may add – to the rule of law in international
relations.
2. Mr President, the Philippines has long placed its faith in the rules and institutions that the international
community has created to regulate relations among States. We are proud to have been a founding
member of the United Nations, and an active participant in that indispensable institution.
3. Its organs, coupled with the power of international law, serve as the great equalizer among States,
allowing countries, such as my own, to stand on an equal footing with wealthier, more powerful States.
4. Nowhere is this more true, Mr President, than with respect to the progressive development of the law of
the sea, which culminated in the adoption of the Law of the Sea Convention in 1982. That instrument,
which has rightly been called a “Constitution for the Oceans,” counts among its most important
achievements the establishment of clear rules regarding the peaceful use of the seas, freedom of
navigation, protection of the maritime environment and, perhaps most importantly, clearly defined limits on
the maritime areas in which States are entitled to exercise sovereign rights and jurisdiction.
5. These are all matters of central significance to the Philippines. Indeed, given our lengthy coastline, our
status as an archipelagic state, and our seafaring tradition, the rules codified in the law of the sea have
always had particular importance for the Philippines. The Philippines is justifiably proud of the fact that it
signed the Convention on the day it was opened for signature, on December 10, 1982, and was one of
the first States to submit its instrument of ratification, which it did on May 8, 1984.
6. The Philippines has respected and implemented its rights and obligations under the Convention in
good faith. This can be seen in the amendment of our national legislation to bring the Philippines’
maritime claims into compliance with the Convention, by converting our prior straight baselines into
archipelagic baselines in conformity with Articles 46 and 47, and by providing that the maritime zones of
the Kalayaan Island Group and Scarborough Shoal in the South China Sea would be consistent with
Article 121.
7. The Philippines took these important steps, Mr President, because we understand, and accept, that
compliance with the rules of the Convention is required of all States Parties.
8. I mentioned a moment ago the equalizing power of international law. Perhaps no provisions of the
Convention are as vital to achieving this critical objective than Part XV. It is these dispute resolution
provisions that allow the weak to challenge the powerful on an equal footing, confident in the conviction
that principles trump power; that law triumphs over force; and that right prevails over might.
9. Mr President, allow me to respectfully make it clear: in submitting this case, the Philippines
is NOT asking the Tribunal to rule on the territorial sovereignty aspect of its disputes with China.
10. We are here because we wish to clarify our maritime entitlements in the South China Sea, a question
over which the Tribunal has jurisdiction. This is a matter that is most important not only to the Philippines,
but also to all coastal States that border the South China Sea, and even to all the States Parties to
UNCLOS. It is a dispute that goes to the very heart of UNCLOS itself. Our very able counsel will have
much more to say about this legal dispute over the interpretation of the Convention during the course of
these oral hearings. But in my humble layman’s view, the central legal dispute in this case can be
expressed as follows:
11. For the Philippines, the maritime entitlements of coastal States – to a territorial sea, exclusive
economic zone, and continental shelf, and the rights and obligations of the States Parties within these
respective zones – are established, defined, and limited by the express terms of the Convention. Those
express terms do not allow for – in fact they preclude – claims to broader entitlements, or sovereign
rights, or jurisdiction, over maritime areas beyond the limits of the EEZ or continental shelf. In particular,
the Convention does not recognize, or permit the exercise of, so-called “historic rights” in areas beyond
the limits of the maritime zones that are recognized or established by UNCLOS.
12. Sadly, China disputes this, Mr President, in both word and deed. It claims that it is entitled to exercise
sovereign rights and jurisdiction, including the exclusive right to the resources of the sea and seabed, far
beyond the limits established by the Convention, based on so-called “historic rights” to these areas.
Whether these alleged “historic rights” extend to the limits generally established by China’s so-called “9dash line,” as appears to be China’s claim, or whether they encompass a greater or a narrower portion of
the South China Sea, the indisputable fact, and the central element of the legal dispute between the
Parties, is that China has asserted a claim of “historic rights” to vast areas of the sea and seabed that lie
far beyond the limits of its EEZ and continental shelf entitlements under the Convention.
13. In fact, China has done much more, Mr President, than to simply claim these alleged “historic rights.”
It has acted forcefully to assert them, by exploiting the living and non-living resources in the areas beyond
the UNCLOS limits while forcibly preventing other coastal States, including the Philippines, from exploiting
the resources in the same areas – even though the areas lie well within 200 M of the Philippines’ coast
and, in many cases, hundreds of miles beyond any EEZ or continental shelf that China could plausibly
claim under the Convention.
14. The legal dispute between the Philippines and China over China’s claim to and exercise of alleged
“historic rights” is a matter falling under the Convention, and particularly Part XV, regardless of whether
China is claiming that “historic rights” are recognized under the Convention, or allowable under the
Convention because they are not precluded by it. China has made both arguments in its public
statements. But it makes no difference for purposes of the characterization of this dispute as one calling
for the interpretation or application of the Convention. The question raised by the conflicting positions of
the Philippines and China boils down to this: Are maritime entitlements to be governed strictly by
UNCLOS, thus precluding claims of maritime entitlements based on “historic rights”? Or does the
UNCLOS allow a State to claim entitlements based on “historic” or other rights even beyond those
provided for in the Convention itself?
15. As our counsel will explain, Mr President, any recognition of such “historic rights” conflicts with the
very character of UNCLOS and its express provisions concerning the maritime entitlements of coastal
States. This calls indisputably for the proper interpretation of the fundamental nature of the Convention.
16. China’s assertion and exercise of its alleged rights in areas beyond its entitlements under UNCLOS
have created significant uncertainty and instability in our relations with China and in the broader region. In
this respect, I note the presence here today of representatives of Vietnam, Malaysia, Indonesia, Thailand,
and Japan to observe these critical proceedings.
17. Mr President, China has claimed “historic rights” in areas that are beyond 200 M from its mainland
coasts, or any land feature over which it claims sovereignty, and within 200 M of the coasts of the
Philippines’ main islands, and exploited the resources in these areas while preventing the Philippines
from doing so. It has therefore, in the Philippines’ view, breached the Convention by violating Philippine
sovereign rights and jurisdiction. China has pursued its activities in these disputed maritime areas with
overwhelming force. The Philippines can only counter by invoking international law. That is why it is of
fundamental importance to the Philippines, and we would submit, for the rule of law in general, for the
Tribunal to decide where and to what limit China has maritime entitlements in the South China Sea;
where and to what limit the Philippines has maritime entitlements; where and to what extent the Parties’
respective entitlements overlap and where they do not. None of this requires or even invites the Tribunal
to make any determinations on questions of land sovereignty, or delimitation of maritime boundaries.
18. The Philippines understands that the jurisdiction of this tribunal convened under UNCLOS is limited to
questions that concern the law of the sea. With this in mind, we have taken great care to place before you
only claims that arise directly under the Convention. As counsel for the Philippines will discuss at length in
the coming days, we have, in essence, presented five (5) principal claims. They are:
– First, that China is not entitled to exercise what it refers to as “historic rights” over the waters, seabed,
and subsoil beyond the limits of its entitlements under the Convention;
– Second, that the so-called 9-dash line has no basis whatsoever under international law insofar as it
purports to define the limits of China’s claim to “historic rights”;
– Third, that the various maritime features relied upon by China as a basis upon which to assert its claims
in the South China Sea are not islands that generate entitlement to an exclusive economic zone or
continental shelf. Rather, some are “rocks” within the meaning of Article 121, paragraph 3; others are lowtide elevations; and still others are permanently submerged. As a result, none are capable of generating
entitlements beyond 12M, and some generate no entitlements at all. China’s recent massive reclamation
activities cannot lawfully change the original nature and character of these features;
– Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its
sovereign rights and jurisdiction; and
– Fifth, that China has irreversibly damaged the regional marine environment, in breach of UNCLOS, by
its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its
destructive and hazardous fishing practices, and by its harvesting of endangered species.
19. Mr President, the Philippines is committed to resolving its disputes with China peacefully and in
accordance with international law. For over two decades, we diligently pursued that objective bilaterally,
regionally, and multilaterally. I will not here take this Tribunal through the Philippines’ painstaking and
exhaustive diplomatic efforts, which are set out in detail in our written pleadings. I will, however, mention a
few representative examples, if I may.
20. As far back as August 1995, after China seized and built structures on Mischief Reef – a low-tide
elevation located 126 nautical miles from the Philippine island of Palawan and more than 600 nautical
miles from the closest point on China’s Hainan Island – the Philippines sought to address China’s
violation of its maritime rights diplomatically. During those exchanges, the Philippines and China agreed
that the dispute should be resolved in accordance with UNCLOS. As the then Chinese Vice Minister for
Foreign Affairs, Mr Tang Jiaxuan, stated two years later during bilateral negotiations, China and the
Philippines should “approach the disputes on the basis of international law, including the United Nations
Convention on the Law of the Sea, particularly its provisions on the maritime regimes like the exclusive
economic zone.”
21. The mutual acceptance that the Philippines’ disputes with China must be resolved in accordance with
UNCLOS was also reflected in a Joint Communiquéissued in July 1998 upon completion of bilateral
discussions between my predecessor, Foreign Secretary Domingo Siazon, and China’s Foreign Minister
Tang Jiaxuan. The Communiqué recorded that, and I quote, “The two sides exchanged views on the
question of the South China Sea and reaffirmed their commitment that the relevant disputes shall be
settled peacefully in accordance with the established principles of international law, including the United
Nations Convention on the Law of the Sea.” (End of quote)
22. Regrettably, neither the bilateral exchanges I have mentioned, nor any of the great many subsequent
exchanges, proved capable of resolving the impasse caused by China’s intransigent insistence that China
alone possesses maritime rights in virtually the entirety of the South China Sea, and that the Philippines
must recognize and accept China’s sovereignty before meaningful discussion of other issues could take
place.
23. The Philippines has also been persistent in seeking a diplomatic solution under the auspices of
ASEAN. This has proven no more successful than our bilateral efforts. In fact, China has insisted that
ASEAN cannot be used to resolve any territorial or maritime disputes concerning the South China Sea,
and that such issues can only be dealt with in bilateral negotiations. ASEAN and China have yet to
conclude a binding code of conduct in the South China Sea. The most that has been achieved was the
issuance, in 2002, of a “Declaration on the Conduct of Parties in the South China Sea.” Although that
document recorded the parties’ commitment to work toward the “eventual” establishment of a code of
conduct in the South China Sea, China’s intransigence in the 13 years of subsequent multilateral
negotiations has made that goal nearly unattainable.
24. Nonetheless, Mr President, the 2002 DOC is significant in at least one important respect: the ASEAN
Member States and China undertook therein to “resolve their territorial and jurisdictional disputes by
peaceful means, without resorting to the threat or use of force, through friendly consultations and
negotiations by sovereign states directly concerned, in accordance with universally recognized principles
of international law, including the 1982 UN Convention on the Law of the Sea.” In so doing, the
Declaration encouraged those States, should they prove unable to resolve their disputes through
consultations or negotiations, to do so in accordance with the Convention, which includes, of course, the
dispute resolution procedures under Part XV.
25. Mr President, over the years, China’s positions and behavior have become progressively more
aggressive and disconcerting. Outside observers have referred to this as China’s “salami-slicing” strategy:
that is, taking little steps over time, none of which individually is enough to provoke a crisis. Chinese
military officials themselves have referred to this as its “cabbage” strategy: peeling one layer off at a time.
When these small steps are taken together, however, they reflect China’s efforts to slowly consolidate de
facto control throughout the South China Sea.
26. Two more recent incremental steps caused the Philippines to conclude that it had no alternative other
than to invoke compulsory procedures entailing a binding decision. The first was China’s transmittal of its
9-dash line claim to the United Nations in 2009, after which, it prevented the Philippines from carrying out
long-standing oil and gas development projects in areas that are well inside the Philippines’ 200 M EEZ
and continental shelf.
27. Secondly, in 2012, China forcibly expelled Philippine fishermen from the maritime areas around
Scarborough Shoal where the Filipino fishermen have for generations been fishing without so much as a
protest from China.
28. These and other acts by China caused the Philippines to conclude that continued diplomatic efforts,
whether bilateral or multilateral, would be futile, and that the only way to resolve our maritime disputes
was to commence the present arbitration.
29. Subsequent events, including China’s acceleration of massive land reclamation activities, which it has
undertaken – and continues to undertake – in blatant disregard of the Philippines rights’ in its EEZ and
continental shelf, and at tremendous cost to the marine environment in violation of UNCLOS – only serve
to reconfirm the need for judicial intervention.
30. Mr President, I would like to conclude by conveying my country’s deepest appreciation for the
considerable time and attention you have devoted to these proceedings. The case before you is of the
utmost importance to the Philippines, to the region, and to the world. In our view, it is also of utmost
significance to the integrity of the Convention, and to the very fabric of the “legal order for the seas and
oceans” that the international community so painstakingly crafted over many years.
31. If China can defy the limits placed by the Convention on its maritime entitlements in the South China
Sea, and disregard the entitlements of the Philippines under the Convention, then what value is there in
the Convention for small States Parties as regards their bigger, more powerful and better armed
neighbors? Can the Philippines not invoke Part XV to challenge China’s activities as violations of its
obligations and the Philippines’ rights, considering that the Philippines’ claims call for a mere
interpretation and application of the Convention and do not fall within any of the jurisdictional exclusions
of Articles 297 or 298?
32. Mr President, if the Philippines cannot invoke Part XV, then what remains of the obligation regarding
judicial settlement of disputes that was such a key element of the comprehensive package that made the
Convention acceptable to all State Parties?
33. We understand, Mr President, that in the exercise of its collective wisdom and judgment, this body
has decided to bifurcate the proceedings and to limit these current hearings to the issue of jurisdiction. In
this respect, we shall explain in full how our case falls squarely within the jurisdiction of this Tribunal, to
the end that justice and fair play may prevail and the Tribunal would recognize its jurisdiction over the
case and allow the Philippines to present the actual merits of our position.
34. In the Philippines’ view, it is not just the Philippines’ claims against China that rest in your capable
hands. Mr. President, it is the spirit of UNCLOS itself. That is why, we submit, these proceedings have
attracted so much interest and attention. We call on the Tribunal to kindly uphold the Convention and
enable the rule of law to prevail.
35. I humbly thank you, Mr President, and distinguished Members of the Tribunal. May I now ask that
Philippines’ counsel, Mr. Paul Reichler, be called to the podium. – Rappler.com
MANILA, Philippines – The Philippines' case against China over the West Philippine Sea (South China
Sea) boils down to 5 basic arguments.
For the oral hearings that run until July 13, we've listed these 5 arguments, quoted verbatim from Del
Rosario.
Below each argument, we've added our own notes to explain things in a nutshell. We've also included
links to other stories for further reading and reference.
The Philippines' arguments revolve around the right to fish, as well as to exploit other resources, in the
West Philippine Sea. (READ: PH vs China at The Hague: '80% of fish' at stake)
This right is based on the so-called Constitution for the Oceans, the United Nations Convention on the
Law of the Sea (UNCLOS).
Under UNCLOS, a coastal state has the exclusive right to fish within its exclusive economic zone (EEZ),
an area 200 nautical miles from the coastal state's baselines or edges.
1. China's 'historical rights'
ARGUMENT: "First, that China is not entitled to exercise what it refers to as 'historic rights' over the
waters, seabed, and subsoil beyond the limits of its entitlements under the Convention."
EXPLANATION: China says the South China Sea has belonged to it for centuries. This is why it claims
"historical rights" over the disputed sea.
Senior Associate Justice Antonio Carpio of the Philippine Supreme Court, however, says that "even if
true," these historical rights have no bearing on sea disputes under UNCLOS. Carpio explains that
UNCLOS "extinguished all historical rights of other states." This UN convention instead gives each
coastal state an EEZ. (READ: Top Philippine judge uses Chinese maps vs China)
2. China's 9-dash line
ARGUMENT: "Second, that the so-called 9-dash line has no basis whatsoever under international law
insofar as it purports to define the limits of China’s claim to 'historic rights.'"
EXPLANATION: The 9-dash line is China's demarcation to claim virtually the entire South China Sea.
China says this is based on its "historical rights."
The Philippines, however, asserts that the 9-dash line is baseless under UNCLOS. This UN convention
allows an EEZ, not a 9-dash line. (READ: No such thing as 9-dash line – US envoy)
3. Rocks vs islands
ARGUMENT: "Third, that the various maritime features relied upon by China as a basis upon which to
assert its claims in the South China Sea are not islands that generate entitlement to an exclusive
economic zone or continental shelf. Rather, some are 'rocks' within the meaning of Article 121, paragraph
3; others are low-tide elevations; and still others are permanently submerged. As a result, none are
capable of generating entitlements beyond 12NM (nautical miles), and some generate no entitlements at
all. China’s recent massive reclamation activities cannot lawfully change the original nature and character
of these features."
EXPLANATION: Under UNCLOS, habitable islands can generate a 200-nautical-mile EEZ. Rocks cannot.
China describes some features in the South China Sea as islands. One of these is Panatag Shoal
(Scarborough Shoal), a rocky sandbar. China claims these supposed islands.
China also says these "islands" generate an EEZ, which could overlap with the EEZ of the Philippines.
The problem for the Philippines is, China declared in 2006 that it "does not accept" arbitral jurisdiction
when it comes to overlapping EEZs. UNCLOS allows this exception.
This is partly why China says the tribunal at The Hague has no right to hear the Philippine case –
because it supposedly involves overlapping EEZs.
"The maritime dispute between the Philippines and China boils down to whether there are overlapping
EEZs between the Philippines and China in the West Philippine Sea," Senior Associate Justice Carpio
says.
Carpio, however, explains that "China has no EEZ that overlaps with the Philippines' EEZ in the
Scarborough area." Carpio also believes an international tribunal "will deny Itu Aba," the largest island in
the Spratlys, an EEZ. (READ: Why China calls it Huangyan Island)
The Philippines adds that China's reclamation activities cannot "lawfully change" rocks into islands.
4. Breach of the law of the sea
ARGUMENT: "Fourth, that China has breached the Convention by interfering with the Philippines’
exercise of its sovereign rights and jurisdiction."
EXPLANATION: China prevents Filipinos from fishing in the West Philippine Sea. UNCLOS, on the other
hand, gives Filipinos the exclusive rights to fish within the Philippines' EEZ in the disputed waters.
(READ: PH fisherfolk: Living with Chinese coast guard's hostility)
5. Damage to environment
ARGUMENT: "China has irreversibly damaged the regional marine environment, in breach of UNCLOS,
by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its
destructive and hazardous fishing practices, and by its harvesting of endangered species."
EXPLANATION: China is building artificial islands in the West Philippine Sea. The Philippines says
China's reclamation activities have buried 311 hectares of coral reefs – around 7 times the size of Vatican
City. This can mean P4.8 billion ($106.29 million) in lost economic benefits. At the same time, China is
accusedof poaching. (READ: PH: China 'irreversibly damaged' environment)
China, for its part, refuses to answer the Philippines' arguments in arbitration proceedings. It has
instead published a position paper debunking the Philippines' claims.
In the end, the Philippines says, the case at The Hague is set to provide a long-term solution to the sea
dispute. (READ: FULL TEXT: The Philippines' opening salvo at The Hague)
For Del Rosario, UNCLOS provisions "allow the weak to challenge the powerful on an equal footing,
confident in the conviction that principles trump power; that law triumphs over force; and that right prevails
over might." – Rappler.com
tribunal at The Hague, The Netherlands, on the Philippines' case against China. Del Rosario delivered
this speech – originally titled "Why the Philippines Brought This Case to Arbitration and Its Importance to
the Region and the World" – on July 7, the first day of oral hearings at The Hague.
1. Mr President, distinguished Members of the Tribunal, it is a great honor to respectfully appear before
you on behalf of my country, the Republic of the Philippines. It is indeed a special privilege to do so in a
case that has such importance to all Filipinos and – if I may add – to the rule of law in international
relations.
2. Mr President, the Philippines has long placed its faith in the rules and institutions that the international
community has created to regulate relations among States. We are proud to have been a founding
member of the United Nations, and an active participant in that indispensable institution.
3. Its organs, coupled with the power of international law, serve as the great equalizer among States,
allowing countries, such as my own, to stand on an equal footing with wealthier, more powerful States.
4. Nowhere is this more true, Mr President, than with respect to the progressive development of the law of
the sea, which culminated in the adoption of the Law of the Sea Convention in 1982. That instrument,
which has rightly been called a “Constitution for the Oceans,” counts among its most important
achievements the establishment of clear rules regarding the peaceful use of the seas, freedom of
navigation, protection of the maritime environment and, perhaps most importantly, clearly defined limits on
the maritime areas in which States are entitled to exercise sovereign rights and jurisdiction.
5. These are all matters of central significance to the Philippines. Indeed, given our lengthy coastline, our
status as an archipelagic state, and our seafaring tradition, the rules codified in the law of the sea have
always had particular importance for the Philippines. The Philippines is justifiably proud of the fact that it
signed the Convention on the day it was opened for signature, on December 10, 1982, and was one of
the first States to submit its instrument of ratification, which it did on May 8, 1984.
6. The Philippines has respected and implemented its rights and obligations under the Convention in
good faith. This can be seen in the amendment of our national legislation to bring the Philippines’
maritime claims into compliance with the Convention, by converting our prior straight baselines into
archipelagic baselines in conformity with Articles 46 and 47, and by providing that the maritime zones of
the Kalayaan Island Group and Scarborough Shoal in the South China Sea would be consistent with
Article 121.
7. The Philippines took these important steps, Mr President, because we understand, and accept, that
compliance with the rules of the Convention is required of all States Parties.
8. I mentioned a moment ago the equalizing power of international law. Perhaps no provisions of the
Convention are as vital to achieving this critical objective than Part XV. It is these dispute resolution
provisions that allow the weak to challenge the powerful on an equal footing, confident in the conviction
that principles trump power; that law triumphs over force; and that right prevails over might.
9. Mr President, allow me to respectfully make it clear: in submitting this case, the Philippines
is NOT asking the Tribunal to rule on the territorial sovereignty aspect of its disputes with China.
10. We are here because we wish to clarify our maritime entitlements in the South China Sea, a question
over which the Tribunal has jurisdiction. This is a matter that is most important not only to the Philippines,
but also to all coastal States that border the South China Sea, and even to all the States Parties to
UNCLOS. It is a dispute that goes to the very heart of UNCLOS itself. Our very able counsel will have
much more to say about this legal dispute over the interpretation of the Convention during the course of
these oral hearings. But in my humble layman’s view, the central legal dispute in this case can be
expressed as follows:
11. For the Philippines, the maritime entitlements of coastal States – to a territorial sea, exclusive
economic zone, and continental shelf, and the rights and obligations of the States Parties within these
respective zones – are established, defined, and limited by the express terms of the Convention. Those
express terms do not allow for – in fact they preclude – claims to broader entitlements, or sovereign
rights, or jurisdiction, over maritime areas beyond the limits of the EEZ or continental shelf. In particular,
the Convention does not recognize, or permit the exercise of, so-called “historic rights” in areas beyond
the limits of the maritime zones that are recognized or established by UNCLOS.
12. Sadly, China disputes this, Mr President, in both word and deed. It claims that it is entitled to exercise
sovereign rights and jurisdiction, including the exclusive right to the resources of the sea and seabed, far
beyond the limits established by the Convention, based on so-called “historic rights” to these areas.
Whether these alleged “historic rights” extend to the limits generally established by China’s so-called “9dash line,” as appears to be China’s claim, or whether they encompass a greater or a narrower portion of
the South China Sea, the indisputable fact, and the central element of the legal dispute between the
Parties, is that China has asserted a claim of “historic rights” to vast areas of the sea and seabed that lie
far beyond the limits of its EEZ and continental shelf entitlements under the Convention.
13. In fact, China has done much more, Mr President, than to simply claim these alleged “historic rights.”
It has acted forcefully to assert them, by exploiting the living and non-living resources in the areas beyond
the UNCLOS limits while forcibly preventing other coastal States, including the Philippines, from exploiting
the resources in the same areas – even though the areas lie well within 200 M of the Philippines’ coast
and, in many cases, hundreds of miles beyond any EEZ or continental shelf that China could plausibly
claim under the Convention.
14. The legal dispute between the Philippines and China over China’s claim to and exercise of alleged
“historic rights” is a matter falling under the Convention, and particularly Part XV, regardless of whether
China is claiming that “historic rights” are recognized under the Convention, or allowable under the
Convention because they are not precluded by it. China has made both arguments in its public
statements. But it makes no difference for purposes of the characterization of this dispute as one calling
for the interpretation or application of the Convention. The question raised by the conflicting positions of
the Philippines and China boils down to this: Are maritime entitlements to be governed strictly by
UNCLOS, thus precluding claims of maritime entitlements based on “historic rights”? Or does the
UNCLOS allow a State to claim entitlements based on “historic” or other rights even beyond those
provided for in the Convention itself?
15. As our counsel will explain, Mr President, any recognition of such “historic rights” conflicts with the
very character of UNCLOS and its express provisions concerning the maritime entitlements of coastal
States. This calls indisputably for the proper interpretation of the fundamental nature of the Convention.
16. China’s assertion and exercise of its alleged rights in areas beyond its entitlements under UNCLOS
have created significant uncertainty and instability in our relations with China and in the broader region. In
this respect, I note the presence here today of representatives of Vietnam, Malaysia, Indonesia, Thailand,
and Japan to observe these critical proceedings.
17. Mr President, China has claimed “historic rights” in areas that are beyond 200 M from its mainland
coasts, or any land feature over which it claims sovereignty, and within 200 M of the coasts of the
Philippines’ main islands, and exploited the resources in these areas while preventing the Philippines
from doing so. It has therefore, in the Philippines’ view, breached the Convention by violating Philippine
sovereign rights and jurisdiction. China has pursued its activities in these disputed maritime areas with
overwhelming force. The Philippines can only counter by invoking international law. That is why it is of
fundamental importance to the Philippines, and we would submit, for the rule of law in general, for the
Tribunal to decide where and to what limit China has maritime entitlements in the South China Sea;
where and to what limit the Philippines has maritime entitlements; where and to what extent the Parties’
respective entitlements overlap and where they do not. None of this requires or even invites the Tribunal
to make any determinations on questions of land sovereignty, or delimitation of maritime boundaries.
18. The Philippines understands that the jurisdiction of this tribunal convened under UNCLOS is limited to
questions that concern the law of the sea. With this in mind, we have taken great care to place before you
only claims that arise directly under the Convention. As counsel for the Philippines will discuss at length in
the coming days, we have, in essence, presented five (5) principal claims. They are:
– First, that China is not entitled to exercise what it refers to as “historic rights” over the waters, seabed,
and subsoil beyond the limits of its entitlements under the Convention;
– Second, that the so-called 9-dash line has no basis whatsoever under international law insofar as it
purports to define the limits of China’s claim to “historic rights”;
– Third, that the various maritime features relied upon by China as a basis upon which to assert its claims
in the South China Sea are not islands that generate entitlement to an exclusive economic zone or
continental shelf. Rather, some are “rocks” within the meaning of Article 121, paragraph 3; others are lowtide elevations; and still others are permanently submerged. As a result, none are capable of generating
entitlements beyond 12M, and some generate no entitlements at all. China’s recent massive reclamation
activities cannot lawfully change the original nature and character of these features;
– Fourth, that China has breached the Convention by interfering with the Philippines’ exercise of its
sovereign rights and jurisdiction; and
– Fifth, that China has irreversibly damaged the regional marine environment, in breach of UNCLOS, by
its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its
destructive and hazardous fishing practices, and by its harvesting of endangered species.
19. Mr President, the Philippines is committed to resolving its disputes with China peacefully and in
accordance with international law. For over two decades, we diligently pursued that objective bilaterally,
regionally, and multilaterally. I will not here take this Tribunal through the Philippines’ painstaking and
exhaustive diplomatic efforts, which are set out in detail in our written pleadings. I will, however, mention a
few representative examples, if I may.
20. As far back as August 1995, after China seized and built structures on Mischief Reef – a low-tide
elevation located 126 nautical miles from the Philippine island of Palawan and more than 600 nautical
miles from the closest point on China’s Hainan Island – the Philippines sought to address China’s
violation of its maritime rights diplomatically. During those exchanges, the Philippines and China agreed
that the dispute should be resolved in accordance with UNCLOS. As the then Chinese Vice Minister for
Foreign Affairs, Mr Tang Jiaxuan, stated two years later during bilateral negotiations, China and the
Philippines should “approach the disputes on the basis of international law, including the United Nations
Convention on the Law of the Sea, particularly its provisions on the maritime regimes like the exclusive
economic zone.”
21. The mutual acceptance that the Philippines’ disputes with China must be resolved in accordance with
UNCLOS was also reflected in a Joint Communiquéissued in July 1998 upon completion of bilateral
discussions between my predecessor, Foreign Secretary Domingo Siazon, and China’s Foreign Minister
Tang Jiaxuan. The Communiqué recorded that, and I quote, “The two sides exchanged views on the
question of the South China Sea and reaffirmed their commitment that the relevant disputes shall be
settled peacefully in accordance with the established principles of international law, including the United
Nations Convention on the Law of the Sea.” (End of quote)
22. Regrettably, neither the bilateral exchanges I have mentioned, nor any of the great many subsequent
exchanges, proved capable of resolving the impasse caused by China’s intransigent insistence that China
alone possesses maritime rights in virtually the entirety of the South China Sea, and that the Philippines
must recognize and accept China’s sovereignty before meaningful discussion of other issues could take
place.
23. The Philippines has also been persistent in seeking a diplomatic solution under the auspices of
ASEAN. This has proven no more successful than our bilateral efforts. In fact, China has insisted that
ASEAN cannot be used to resolve any territorial or maritime disputes concerning the South China Sea,
and that such issues can only be dealt with in bilateral negotiations. ASEAN and China have yet to
conclude a binding code of conduct in the South China Sea. The most that has been achieved was the
issuance, in 2002, of a “Declaration on the Conduct of Parties in the South China Sea.” Although that
document recorded the parties’ commitment to work toward the “eventual” establishment of a code of
conduct in the South China Sea, China’s intransigence in the 13 years of subsequent multilateral
negotiations has made that goal nearly unattainable.
24. Nonetheless, Mr President, the 2002 DOC is significant in at least one important respect: the ASEAN
Member States and China undertook therein to “resolve their territorial and jurisdictional disputes by
peaceful means, without resorting to the threat or use of force, through friendly consultations and
negotiations by sovereign states directly concerned, in accordance with universally recognized principles
of international law, including the 1982 UN Convention on the Law of the Sea.” In so doing, the
Declaration encouraged those States, should they prove unable to resolve their disputes through
consultations or negotiations, to do so in accordance with the Convention, which includes, of course, the
dispute resolution procedures under Part XV.
25. Mr President, over the years, China’s positions and behavior have become progressively more
aggressive and disconcerting. Outside observers have referred to this as China’s “salami-slicing” strategy:
that is, taking little steps over time, none of which individually is enough to provoke a crisis. Chinese
military officials themselves have referred to this as its “cabbage” strategy: peeling one layer off at a time.
When these small steps are taken together, however, they reflect China’s efforts to slowly consolidate de
facto control throughout the South China Sea.
26. Two more recent incremental steps caused the Philippines to conclude that it had no alternative other
than to invoke compulsory procedures entailing a binding decision. The first was China’s transmittal of its
9-dash line claim to the United Nations in 2009, after which, it prevented the Philippines from carrying out
long-standing oil and gas development projects in areas that are well inside the Philippines’ 200 M EEZ
and continental shelf.
27. Secondly, in 2012, China forcibly expelled Philippine fishermen from the maritime areas around
Scarborough Shoal where the Filipino fishermen have for generations been fishing without so much as a
protest from China.
28. These and other acts by China caused the Philippines to conclude that continued diplomatic efforts,
whether bilateral or multilateral, would be futile, and that the only way to resolve our maritime disputes
was to commence the present arbitration.
29. Subsequent events, including China’s acceleration of massive land reclamation activities, which it has
undertaken – and continues to undertake – in blatant disregard of the Philippines rights’ in its EEZ and
continental shelf, and at tremendous cost to the marine environment in violation of UNCLOS – only serve
to reconfirm the need for judicial intervention.
30. Mr President, I would like to conclude by conveying my country’s deepest appreciation for the
considerable time and attention you have devoted to these proceedings. The case before you is of the
utmost importance to the Philippines, to the region, and to the world. In our view, it is also of utmost
significance to the integrity of the Convention, and to the very fabric of the “legal order for the seas and
oceans” that the international community so painstakingly crafted over many years.
31. If China can defy the limits placed by the Convention on its maritime entitlements in the South China
Sea, and disregard the entitlements of the Philippines under the Convention, then what value is there in
the Convention for small States Parties as regards their bigger, more powerful and better armed
neighbors? Can the Philippines not invoke Part XV to challenge China’s activities as violations of its
obligations and the Philippines’ rights, considering that the Philippines’ claims call for a mere
interpretation and application of the Convention and do not fall within any of the jurisdictional exclusions
of Articles 297 or 298?
32. Mr President, if the Philippines cannot invoke Part XV, then what remains of the obligation regarding
judicial settlement of disputes that was such a key element of the comprehensive package that made the
Convention acceptable to all State Parties?
33. We understand, Mr President, that in the exercise of its collective wisdom and judgment, this body
has decided to bifurcate the proceedings and to limit these current hearings to the issue of jurisdiction. In
this respect, we shall explain in full how our case falls squarely within the jurisdiction of this Tribunal, to
the end that justice and fair play may prevail and the Tribunal would recognize its jurisdiction over the
case and allow the Philippines to present the actual merits of our position.
34. In the Philippines’ view, it is not just the Philippines’ claims against China that rest in your capable
hands. Mr. President, it is the spirit of UNCLOS itself. That is why, we submit, these proceedings have
attracted so much interest and attention. We call on the Tribunal to kindly uphold the Convention and
enable the rule of law to prevail.
35. I humbly thank you, Mr President, and distinguished Members of the Tribunal. May I now ask that
Philippines’ counsel, Mr. Paul Reichler, be called to the podium. – Rappler.com
MANILA, Philippines – The Philippines' case against China over the West Philippine Sea (South China
Sea) boils down to 5 basic arguments.
For the oral hearings that run until July 13, we've listed these 5 arguments, quoted verbatim from Del
Rosario.
Below each argument, we've added our own notes to explain things in a nutshell. We've also included
links to other stories for further reading and reference.
The Philippines' arguments revolve around the right to fish, as well as to exploit other resources, in the
West Philippine Sea. (READ: PH vs China at The Hague: '80% of fish' at stake)
This right is based on the so-called Constitution for the Oceans, the United Nations Convention on the
Law of the Sea (UNCLOS).
Under UNCLOS, a coastal state has the exclusive right to fish within its exclusive economic zone (EEZ),
an area 200 nautical miles from the coastal state's baselines or edges.
1. China's 'historical rights'
ARGUMENT: "First, that China is not entitled to exercise what it refers to as 'historic rights' over the
waters, seabed, and subsoil beyond the limits of its entitlements under the Convention."
EXPLANATION: China says the South China Sea has belonged to it for centuries. This is why it claims
"historical rights" over the disputed sea.
Senior Associate Justice Antonio Carpio of the Philippine Supreme Court, however, says that "even if
true," these historical rights have no bearing on sea disputes under UNCLOS. Carpio explains that
UNCLOS "extinguished all historical rights of other states." This UN convention instead gives each
coastal state an EEZ. (READ: Top Philippine judge uses Chinese maps vs China)
2. China's 9-dash line
ARGUMENT: "Second, that the so-called 9-dash line has no basis whatsoever under international law
insofar as it purports to define the limits of China’s claim to 'historic rights.'"
EXPLANATION: The 9-dash line is China's demarcation to claim virtually the entire South China Sea.
China says this is based on its "historical rights."
The Philippines, however, asserts that the 9-dash line is baseless under UNCLOS. This UN convention
allows an EEZ, not a 9-dash line. (READ: No such thing as 9-dash line – US envoy)
3. Rocks vs islands
ARGUMENT: "Third, that the various maritime features relied upon by China as a basis upon which to
assert its claims in the South China Sea are not islands that generate entitlement to an exclusive
economic zone or continental shelf. Rather, some are 'rocks' within the meaning of Article 121, paragraph
3; others are low-tide elevations; and still others are permanently submerged. As a result, none are
capable of generating entitlements beyond 12NM (nautical miles), and some generate no entitlements at
all. China’s recent massive reclamation activities cannot lawfully change the original nature and character
of these features."
EXPLANATION: Under UNCLOS, habitable islands can generate a 200-nautical-mile EEZ. Rocks cannot.
China describes some features in the South China Sea as islands. One of these is Panatag Shoal
(Scarborough Shoal), a rocky sandbar. China claims these supposed islands.
China also says these "islands" generate an EEZ, which could overlap with the EEZ of the Philippines.
The problem for the Philippines is, China declared in 2006 that it "does not accept" arbitral jurisdiction
when it comes to overlapping EEZs. UNCLOS allows this exception.
This is partly why China says the tribunal at The Hague has no right to hear the Philippine case –
because it supposedly involves overlapping EEZs.
"The maritime dispute between the Philippines and China boils down to whether there are overlapping
EEZs between the Philippines and China in the West Philippine Sea," Senior Associate Justice Carpio
says.
Carpio, however, explains that "China has no EEZ that overlaps with the Philippines' EEZ in the
Scarborough area." Carpio also believes an international tribunal "will deny Itu Aba," the largest island in
the Spratlys, an EEZ. (READ: Why China calls it Huangyan Island)
The Philippines adds that China's reclamation activities cannot "lawfully change" rocks into islands.
4. Breach of the law of the sea
ARGUMENT: "Fourth, that China has breached the Convention by interfering with the Philippines’
exercise of its sovereign rights and jurisdiction."
EXPLANATION: China prevents Filipinos from fishing in the West Philippine Sea. UNCLOS, on the other
hand, gives Filipinos the exclusive rights to fish within the Philippines' EEZ in the disputed waters.
(READ: PH fisherfolk: Living with Chinese coast guard's hostility)
5. Damage to environment
ARGUMENT: "China has irreversibly damaged the regional marine environment, in breach of UNCLOS,
by its destruction of coral reefs in the South China Sea, including areas within the Philippines’ EEZ, by its
destructive and hazardous fishing practices, and by its harvesting of endangered species."
EXPLANATION: China is building artificial islands in the West Philippine Sea. The Philippines says
China's reclamation activities have buried 311 hectares of coral reefs – around 7 times the size of Vatican
City. This can mean P4.8 billion ($106.29 million) in lost economic benefits. At the same time, China is
accusedof poaching. (READ: PH: China 'irreversibly damaged' environment)
China, for its part, refuses to answer the Philippines' arguments in arbitration proceedings. It has
instead published a position paper debunking the Philippines' claims.
In the end, the Philippines says, the case at The Hague is set to provide a long-term solution to the sea
dispute. (READ: FULL TEXT: The Philippines' opening salvo at The Hague)
For Del Rosario, UNCLOS provisions "allow the weak to challenge the powerful on an equal footing,
confident in the conviction that principles trump power; that law triumphs over force; and that right prevails
over might." – Rappler.com
