South China Sea Arbitration

Topic: Acquisition of Territory by Accretion

Overview

The South China Sea Arbitration was conducted between the Republic of the Philippines
and the People’s Republic of China by the Permanent Court of Arbitration (PCA), under
the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

The arbitration is related to disputes between the Parties regarding the legal basis of maritime
rights and entitlements, the status of certain geographic features, and the lawfulness of certain
actions taken by China in the South China Sea; in particular, the following four issues, as raised
by Philippines:

1. To resolve a dispute between the parties regarding the source of maritime rights and
entitlements in the South China Sea;
2. To resolve a dispute between the parties concerning the entitlements to maritime zones
that would be generated under the Convention by Scarborough Shoal and certain
maritime features in the Spratly Islands that are claimed by both the parties;
3. To resolve a series of disputes concerning the lawfulness of China’s actions in the
South China Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and
preserve the marine environment, and inflicting harm on the marine environment
(through land reclamation and construction of artificial islands);
4. To find that China has aggravated and extended the disputes between the Parties by
restricting access to a detachment of Philippines Marines stationed at Second Thomas
Shoal.

China says ancient maps show that it legally controls nearly all the South China Sea. But
Philippine officials argue that China’s territorial claims and recent aggressive activities in the
South China Sea violate the United Nations Convention on the Law of the Sea (UNCLOS).

The UN Permanent Court of Arbitration in The Hague said China has “no historic title” to the
area. And, the court ruled that China had violated the Philippines’ rights by interfering with that
country’s fishing and oil exploration in the area.

The Tribunal considered the validity of China’s claim to historic rights in the maritime region of
the South China Sea and the ‘Nine-Dash Line’. Through a lengthy analysis of the text and
context of the Convention, in line with the principles set out in the Vienna Convention on the
Law of Treaties, the Tribunal established that the Convention supersedes any treaties in force
before its coming into force.

It questioned China’s claim to historical rights in the region, and established that China’s state
practice does not show that China had been enjoying any historical rights in the South China
Sea; rather, it was enjoying the freedom of the high seas and since it did not create bar to other
states’ usage of the same, it could not be understood as being a historical right.

ISSUE:

WON China’s construction of artificial “islands” on maritime features such as reef and low-tide
elevations in the South China Sea can form the basis of Chinese claims to title in the areas in
question. -artificial accretion?

DISCUSSION:

NO.

The formation of new territory must be the result of natural forces, however, and man-made
features are not covered. Artificial accretion will only be accepted as a new territory it it does
not infringe the rights of other states or if those states have given their consent. -from book.
THe Court considered that the “status” of a feature to be ascertained on the basis of its
earlier, natural condition prior to the onset of significant human modification.
South China Sea Arbitration

Naturally Formed Areas and the Human Modification of Coral Reefs

305. With respect to low-tide elevations, several points necessarily follow from this pair of
definitions. First, the inclusion of the term “naturally formed” in the definition of both a low-tide
elevation and an island indicates that the status of a feature is to be evaluated on the basis of its
natural condition. As a matter of law, human modification cannot change the seabed into a low-
tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide
elevation under the Convention, regardless of the scale of the island or installation built atop it.

306. This point raises particular considerations in the present case. Many of the features in
the South China Sea have been subjected to substantial human modification as large
islands with installations and airstrips have been constructed on top of the coral reefs. In
some cases, it would likely no longer be possible to directly observe the original status of the
feature, as the contours of the reef platform have been entirely buried by millions of tons of
landfill and concrete. In such circumstances, the Tribunal considers that the Convention
requires that the status of a feature be ascertained on the basis of its earlier, natural
condition, prior to the onset of significant human modification. The Tribunal will therefore
reach its decision on the basis of the best available evidence of the previous status of what are
now heavily modified coral reefs.

(a) The Context of Islands, Rocks, and Low-Tide Elevations

Article 13 (UNCLOS)

Low-tide elevations

1. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide
but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the
breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the
baseline for measuring the breadth of the territorial sea.

2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from
the mainland or an island, it has no territorial sea of its own.

Article 121 (UNCLOS)

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable
to other land territory.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive
economic zone or continental shelf

508. As discussed above in connection with the status of features as above or below water (see
paragraphs 305 to 306), Article 13 and Article 121 both apply to a “naturally formed area of
land.” Just as a low-tide elevation or area of seabed cannot be legally transformed into an
island through human efforts, the Tribunal considers that a rock cannot be transformed
into a fully entitled island through land reclamation. The status of a feature must be
assessed on the basis of its natural condition.

509. In addition to maintaining the structure apparent across Articles 13 and 121, this reading
is consistent with the object and purpose of Article 121(3). If States were allowed to convert
any rock incapable of sustaining human habitation or an economic life into a fully entitled
island simply by the introduction of technology and extraneous materials, then the purpose
of Article 121(3) as a provision of limitation would be frustrated. It could no longer be used
as a practical restraint to prevent States from claiming for themselves potentially immense
maritime space. In this regard, the Tribunal agrees with the Philippines that “[a] contrary rule
South China Sea Arbitration

would create perverse incentives for States to undertake such actions to extend their maritime
zones to the detriment of other coastal States and/or the common heritage of mankind.” Were a
feature’s capacity to sustain allowed to be established by technological enhancements, then
“every high-tide feature, no matter . . . its natural conditions, could be converted into an island
generating a 200-mile entitlement if the State that claims it is willing to devote and regularly
supply the resources necessary to sustain a human settlement.”

511. As noted above with respect to low-tide elevations, many of the high-tide features in the
Spratly Islands have been subjected to substantial human modification as large installations and
airstrips have been constructed on them. Desalination facilities have been installed and tillable
soil introduced. In some cases, it is now difficult to observe directly the original status of the
feature in its natural state. In such circumstances, the Tribunal considers that the Convention
requires that the status of a feature be ascertained on the basis of its earlier, natural condition,
prior to the onset of significant human modification, taking into account the best available
evidence of the previous status of the high-tide features, before intensive modification.

Acts in Relation to Appropriation

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 that China’s actions at Mischief Reef
have unlawfully interfered with the Philippines’ enjoyment of its sovereign rights.

(c) Conclusion

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.