SUBMISSION NO.

8: ALLEGED INTERFERENCE WITH THE PHILIPPINES’ SOVEREIGN RIGHTS IN ITS EEZ AND
CONTINENTAL SHELF

INTRODUCTION: 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;

Tribunal’s Jurisdiction:

It is not a dispute concerning sovereignty, nor is it barred from the Tribunal’s consideration by any
requirement of Section 1 of Part XV.

here 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).

The Tribunal has also found 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.
Nor 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).

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 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.

Factual Background

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 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.

Interference with Rights to Non-Living Resources

A. Petroleum Blocks at Reed Bank

Philippines’ Position: China objected to the conversion of the Philippines’ contract with Sterling Energy
for exploration of oil and gas deposits within the GSEC101 block, located at Reed bank, into a service
contract.

China’s Position: 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.”

Ruling:

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.

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.

B. M/V Veritas Voyager Incident

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.

MV Veritas Voyager reported that they terminated the operation as of due to the two Chinese Surveillance
vessels that have been tracking them and insisting that they should stop the survey.

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.
Philippine’s Position: The “aggressive manoeuvres” by two CMS vessels towards the MV Veritas Voyager
on 2 March 2011 violates the Philippines’ sovereign rights and jurisdiction.

Ruling:

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.

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.

A 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.

China sought to carry out its own understanding of its rights through the actions of its marine surveillance
vessels which the Tribunal considers 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

C. West Calamanian Petroleum Block

Philippines’ Position: China’s objected to Service Contract 58 in respect of the West Calamian petroleum
block and dissuaded Nido from working in the area.

China’s Position: “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.”

Ruling:

There 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

China’s actions in merely informing a private party of its claims in the South China Sea do not, without
more,constitute breaches of the Convention.

D. North-West Palawan Petroleum Blocks

The Philippine Department of Energy 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”). China however objected. They claim that “AREA 3 and AREA 4 are situated in the waters of which
China has historic titles including sovereign rights and jurisdiction.”

Philippine’s Position: China’s objection to the 2011 tender for the Area 3 and 4 petroleum blocks, north-
west of Palawan

China’s Position: 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.”

Ruling: 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.

Acts in Relation to Living Resources

(a) China’s prevention of fishing by Philippine vessels at Mischief Reef and Second Thomas Shoal since
1995.

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.

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.”

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 among Filipino
fishermen that has significantly curtailed their fishing activities and severely impacted their ability to earn
a livelihood.”

Ruling:

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.

he 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.
(b) China’s extension of jurisdiction over fisheries in south china sea

May 10 2012, China announced a fishing moratorium in the South China Sea as part of ongoing efforts to
rehabilitate the area’s marine resources . . . including Huangyan Island [Scarborough Shoal]. “[t]he fishing
ban is also applicable to foreign ships.

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”).As 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.

Philippines’ Position: Philippines’ objects to China’s extension of its jurisdiction over the South China Sea
through the 2012 moratorium on fishing in the South China Sea north of 12°N latitude and through Hainan
Regulation

China’s Position: With respect to fisheries China considers that it has sovereign rights in the areas
in question. China’s Ministry of Agriculture is stated that fishing by foreign vessels in the South China Sea
north of 12° N latitude constitutes “blatant encroachment on China’s fishery resources.”

Ruling:

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 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.

the Tribunal notes that China has publicly stated that the regulation applies only within 12 nautical miles
of Hainan.

The 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.

CONCLUSION:

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.
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.

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.

C. CHINA’S ACTIONS IN RESPECT OF TRADITIONAL FISHING AT SCARBOROUGH SHOAL (SUBMISSION No.

10)

I. INTRODUCTION: The Tribunal addresses the Parties’ dispute concerning China’s actions with respect to
the traditional fishing activities of Philippine nationals at Scarborough Shoal. This is reflected in the
Philippines’ Submission No. 10 which provides:

China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with
traditional fishing activities at Scarborough Shoal.

II. FACTUAL BACKGROUND

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.

a) Traditional Fishing by Philippine Fishermen at Scarborough Shoal

1. 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,
including those from the Philippines, Vietnam, China and Taiwan.

2. Historical cartography evidences a connection between Scarborough Shoal and the Philippine
mainland. A map of the Philippines produced in 1734 included the shoal; another produced in
1784 labelled Scarborough Shoal as “Bajo de Masinloc.” Other documents provided by the
Philippines depict Scarborough Shoal as having historically served as one of the “principal fishing
areas” for Filipino fishermen.

3. Affidavits of six fishermen interviewed by the Philippines confirm the practice of fishing at
Scarborough Shoal in recent generations, providing direct documentation of Philippine fishing
activities in the area at least since 1982 and indirect evidence from 1972.

b) China’s Intermittent Prevention of Fishing by Philippine Vessels at Scarborough Shoal (May 2012
to Present)
 1. China increased the deployment of its own FLEC and CMS vessels in response. 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.

2. Since the introduction of restrictions on Philippine fishing activity at Scarborough Shoal, several
of the fishermen interviewed noted a decrease in income, expressed uncertainty about the
continued viability of their trade, or have retired.

III. The Philippines’ Position

1. 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. Additionally, the Philippines submits that China has violated Articles 279 and 300 of
the Convention. 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.”

2. The Philippines submits that, “provided it has been exercised over a long period of time without
interruption of 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.

3. With regard to the scope of traditional fishing rights protected, the Philippines argues that a State
may restrict fishing rights “only to the extent those activities may go beyond those that have
traditionally been conducted.”

4. 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.”

5. 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. It
suggests that China rejected a Philippine proposal to settle the Parties’ dispute through recourse
to the International Tribunal for the Law of the Sea. Instead, 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.

IV. China’s Position

1. 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.

2. Like the Philippines, China claims sovereignty over Scarborough Shoal and asserts that its waters
constitute a traditional fishing ground for Chinese fishermen. Accordingly, Huangyan Island and
its surrounding waters have been China’s traditional fishing grounds since ancient times.
 3. China believes that it is actually the Philippines that has violated Article 2.4 of the UN Charter by
using warship to harass unarmed Chinese fishermen.

4. 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.

IV. The Tribunal’s Considerations

1. 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
traditional fishing ground for their nationals.

2. Consistent with the limitation on its jurisdiction, the Tribunal has refrained from any decision or
comment on sovereignty over Scarborough Shoal. The Tribunal also considers it imperative 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. 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.

a. The Law Applicable to Traditional Fishing

Under the Convention, traditional fishing rights are accorded differing treatment across maritime
zones:

i. In archipelagic waters – traditional fishing rights are expressly protected

ii. In exclusive economic zone – traditional fishing rights are extinguished.
iii. In territorial sea – traditional fishing rights are protected.

b. The Protection of Traditional Fishing at Scarborough

i. Based on the record before it, the Tribunal is of the view that Scarborough Shoal has
been a traditional fishing ground for the fishermen of many nationalities. The Tribunal
accepts that the claims of the both the Philippines and China to have traditionally
fished at the shoal are accurate and advanced in good faith.

ii. In keeping with the facts that traditional fishing rights are customary rights, acquired
through long usage, the Tribunal notes that the methods of fishing protected under
the 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.
 iii. The Tribunal agrees that, in the territorial sea, “Article 2(3) contains an obligation on
States to exercise their sovereignty subject to other rules of international law.”
Traditional fishing rights constitute a vested right, and the Tribunal considers the rules
of international law on the treatment of the vested rights of foreign nationals to fall
squarely within the other rules of international law applicable in the territorial sea.

iv. 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.

v. With respect to the Philippines’ claim that China’s actions at Scarborough Shoal
represented a specific failure to fulfil its duties pursuant to Art 2(3) of the UN Charter
and Art 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. The Tribunal does
not find the record before it sufficient to support such a claim in respect of either
Party.

VI. Conclusion

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. This decision is entirely without prejudice to the question of sovereignty over
Scarborough Shoal.