MODULE 7 THE PHILIPPINE TERRITORY

A. GENERAL REFERENCES
Treaty of Peace Between the United States of America and the
Kingdom of Spain (Treaty of Paris), 10 December 1898.
Treaty Between the Kingdom of Spain and the United States of
America for Cession of Outlying Islands of the Philippines,
1990.
Convention Between the United States of America and Great
Britain Delimiting the Boundary Between the Philippine
Archipelago and the State of Borneo (1930).
Treaty of General Relations Between the Republic of the
Philippines and the United States of America, Art. I (1946).
Agreement Between the Republic of the Philippines and the
United States of America Concerning Military Bases (1947).
Magallona v. Ermita, GR 187167, 16 August 2011.
B. On claim to Spratlys
Coquia, “The South China Sea Dispute – The Spratlys”
Treaty Limits of the Philippines (illustration) South China Sea:
Selected Claims (illustration)
Carpio, Historical Facts, Historical Lies, and Historical Rights
in the West Philippine Sea
South China Sea Arbitration, Award on Jurisdiction and Admissibility, 29 October 2015

Guide Questions:
a. What is the legal basis of the Philippine’s claim over the Kalayaan Island Group?
The basis of the Philippine claim is effective occupation of a territory not subject to
the sovereignty of another state. The Japanese forces occupied the Spratly Island
group during the Second World War. However, under the San Francisco Peace
Treaty or any other International agreement however, did not designate any
beneficiary state following the Japanese renunciation of right. Subsequently, the
Spratlys became terra nullius and was occupied by the Philippine sovereignty was
displayed by open and public occupation of a number of islands by stationing of
military forces, by organizing petroleum drilling rights, among other political and
administrative acts. In 1978, it confirmed its sovereign title by the promulgation of
Presidential Decree No. 1596, which declared of the Kalayaan Island Group part of
the Philippine territory.

b. What are the legal arguments of the Philippines in the West Philippine Sea
dispute with China? How about China’s arguments?
1. Procedural: Jurisdiction

a. China’s Position: The Arbitral Tribunal has no jurisdiction over the dispute.
China has consistently expressed its position to neither accept nor participate in the
arbitration unilaterally initiated by the Philippines for the primary reason that the Tribunal
has no jurisdiction over the dispute, and thus, the proceedings therein are null and void
thereby creating no legal effect as to China.
China’s stance of lack of jurisdiction is anchored on the following grounds:
1. Compulsory arbitration can only be applied to settle disputes concerning the
interpretation and application of the UNCLOS. If otherwise, the disputes shall not
be settled by compulsory arbitration.
The essence of the subject-matter of the arbitration is territorial sovereignty
over several maritime features in the South China Sea, which does not concern the
interpretation and application of the UNCLOS.
2. A State Party to the UNCLOS may declare in writing that it does not accept
compulsory arbitration with respect to disputes concerning maritime delimitation,
historic bays or titles, military and law enforcement activities, etc. China has
activated all these exceptions through the issuance of its 2006 Declaration. Hence,
compulsory arbitration is not proper.
3. If parties to a dispute have agreed on other means of settlement of their own
choice, no party shall unilaterally initiate compulsory arbitration. China and
Philippines, by execution of joint statements, have agreed to settle their disputes
through bilateral negotiations and consultations.
4. Parties to a dispute are obliged to first exchange views on the means of dispute
settlement. Failing to fulfill this obligation, they shall not initiate compulsory
arbitration. China and Philippines have not yet exchanged views on the subject of
the dispute.
5. The Declaration on the Conduct of Parties in the South China Sea (DOC)
explicitly states that the sovereign states directly concerned undertake to resolve
their territorial and jurisdictional disputes by peaceful means through friendly
consultations and negotiations.
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b. Philippines’ Position: Tribunal has jurisdiction.
The Philippines argues that the dispute is not among those subject matter excluded
under the exceptions to arbitration proceedings under the UNCLOS.
For one, the dispute does not refer to issues of territorial sovereignty or overlapping
maritime entitlements.
Further, China has no historic rights in the maritime areas of the South China Sea
since it only first claimed the existence of such purported rights on 7 May 2009 when it
submitted to the United Nations a map showing that it is now claiming almost 80% of the
entire South China Sea under their “Nine-Dash Line”.
The Philippines submits that Chinese historic maps dating back to 1136, including
those purporting to depict the entirety of the Empire of China, consistently show that China’s
territory extends no further south than Hainan.
The Philippines further emphasizes the absence of “any documents evidencing any
official Chinese activities in regard to any South China Sea feature prior to the beginning of
the 20th century.”
Moreover, there is a Note Verbale from the Legation of the Chinese Republic in
France to the French Ministry of Foreign Affairs in 1932, stating that the Paracel Islands
“form the southernmost part of Chinese territory.”
c. Tribunal’s Conclusion
The Tribunal noted that both the Philippines and China are parties to the Convention
and that the provisions for the settlement of disputes, including arbitration, form an integral
part of the Convention. Although the UNCLOS specifies certain exceptions that may be
submitted to compulsory settlement, a State, as a general rule, may not except itself from the
UNCLOS’ mechanism for dispute resolution.
The Tribunal rendered its Award on Jurisdiction on 29 October 2015 with the
following findings:
A. Tribunal was properly constituted on 21 June 2013 in accordance with Annex VII
(Arbitration) of the UNCLOS.
Philippines appointed Judge Wolfrum;
China did not appoint any arbitrator; President of the International Tribunal
for the Law of the Sea appointed the second arbitrator, Judge Pawlak;
President also appointed the remaining three arbitrators, namely: Judge Cot,
Prof. Soons, and the Presiding Arbitrator Judge Mensah.
B. China’s non-appearance in these proceedings does not deprive the Tribunal of
jurisdiction.
UNCLOS has a provision expressly acknowledging the possibility of nonparticipation
by one of the parties to a dispute and confirms that such non6
participation does not constitute a bar to the proceedings. This is found in Article 9 of
Annex VII which provides:
“Article 9
Default of Appearance
If one of the parties to the dispute does not appear
before the arbitral tribunal or fails to defend its case, the
other party may request the tribunal to continue the
proceedings and to make its award. Absence of a party or
failure of a party to defend its case shall not constitute a bar
to the proceedings. Before making its award, the arbitral
tribunal must satisfy itself not only that it has jurisdiction
over the dispute but also that the claim is well founded in
fact and law.” (Underscoring supplied)
Pursuant to Article 9, the Philippines expressly requested that these
proceedings continue. The Tribunal has continued the proceedings, confirming that
despite China’s non-appearance, it remains a party to the arbitration, with the ensuing
rights and obligations, including the fact that it will be bound under international law
by any decision of the Tribunal.
C. Philippines’ act of initiating this arbitration did not constitute an abuse of process.
Article 298 of the Convention provides in relevant part as follows:
“Article 298
Optional exceptions to applicability of section 2
1. When signing, ratifying or acceding to this Convention
or at any time thereafter, a State may, without prejudice to
the obligations arising under section 1, declare in writing
that it does not accept any one or more of the procedures
provided for in section 2 with respect to one or more of the
following categories of disputes:
(a) (i) disputes concerning the interpretation or application
of articles 15,74 and 83 relating to sea boundary
delimitations, or those involving historic bays or titles . . . ”
(a) On sea boundary delimitations
The Tribunal noted that a dispute concerning whether a State possesses an
entitlement to a maritime zone is a distinct matter from the delimitation of maritime
zones in an area in which they overlap. A maritime boundary may be delimited only
between States with opposite or adjacent coasts and overlapping entitlements. In
contrast, a dispute over claimed entitlements may exist even without overlap.
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Accordingly, the Tribunal held that the claims presented by the Philippines do
not concern sea boundary delimitation and are not, therefore, subject to the exception
to the dispute settlement provisions of the UNCLOS.
(b) On historic bays and titles
The Tribunal is of the view that the reference to ‘historic titles’ in Article
298(1)(a)(i) of the UNCLOS is a reference to claims of sovereignty over maritime
areas derived from historical circumstances. Other “historic rights”, in contrast, are
nowhere mentioned in the UNCLOS, and the Tribunal sees nothing to suggest that
Article 298(1)(a)(i) was intended to also exclude jurisdiction over a broad and
unspecified category of possible claims to historic rights falling short of sovereignty.
Having concluded that the exception to jurisdiction in Article 298(1)(a)(i) is
limited to disputes involving historic titles and that China does not claim historic title
to the waters of South China Sea, but rather a constellation of historic rights short of
title, the Tribunal holds that it has jurisdiction over the subject matter of the dispute.
D. There is no indispensable third party whose absence deprives the Tribunal of
jurisdiction.
The Tribunal held that the determination of the nature of and entitlements
generated by the maritime features in the South China Sea does not require a decision
on issues of territorial sovereignty, and accordingly, the legal rights and obligations of
third parties need not be determined as a prerequisite to the determination of the
merits of the case.
E. The 2002 China–ASEAN Declaration on Conduct of the Parties in the South China
Sea (DOC), the joint statements of the Parties referring to bilateral agreements, the
Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological
Diversity (CBD), do not preclude recourse to the compulsory dispute settlement
procedures under the UNCLOS.
The Tribunal held that the DOC is a political agreement and “was not intended
to be a legally binding agreement with respect to dispute resolution,” does not provide
a mechanism for binding settlement, and does not exclude other means of settlement.
The Tribunal reached the same conclusion with respect to the joint statements.
With respect to the Treaty of Amity and Cooperation in Southeast Asia and
the CBD, the Tribunal noted that both are legally binding agreements with their own
procedures for disputes, but that neither provides a binding mechanism and neither
excludes other procedures.
Accordingly, the Tribunal concluded that none of these instruments prevent
the Philippines from bringing its claims to arbitration.
F. The Parties have exchanged views as required by the UNCLOS.
Article 283 of the UNCLOS provides:
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“Article 283
Obligation to exchange views
1. When a dispute arises between States Parties concerning
the interpretation or application of this Convention, the
parties to the dispute shall proceed expeditiously to an
exchange of views regarding its settlement by negotiation
or other peaceful means.”
With respect to the exchange of views on the settlement of the dispute, the
Tribunal held that such requirement pertains to the exchange of views on the means of
settling the dispute and not the substance of that dispute.
The Tribunal held that this requirement was met in the record of diplomatic
communications between the Philippines and China, in which the Philippines
expressed a clear preference for multilateral negotiations involving the other claimant
States while China insisted that only bilateral talks could be considered.
2. Substantive
a. Fifteen Submissions of the Philippines
The following is the list of issues submitted by the Philippines for declaratory
judgment of the Tribunal:
1. China’s maritime entitlements in the South China Sea may not extend beyond those
expressly permitted by the United Nations Convention on the Law of the Sea
(UNCLOS).
2. China’s claims to sovereign rights jurisdiction, and to “historic rights”, with respect to
the maritime areas of the South China Sea encompassed by the so-called “nine-dash
line” are contrary to UNCLOS and without lawful effect to the extent that they exceed
the geographic and substantive limits of China’s maritime entitlements expressly
permitted by UNCLOS.
3. Scarborough Shoal generates no entitlement to an exclusive economic zone or
continental shelf.
4. Mischief Reef, Second Thomas Shoal and Subi Reef are low-tide elevations that do not
generate entitlement to a territorial sea, exclusive economic zone or continental shelf,
and are not features that are capable of appropriation by occupation or otherwise.
5. Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and
continental shelf of the Philippines.
6. Gaven Reef and Mckennan Reef (including Hughes Reef) are low-tide elevations that do
not generate entitlement to a territorial sea, exclusive economic zone or continental shelf.
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7. Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an
exclusive economic zone or continental shelf.
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.
9. China has unlawfully failed to prevent its nationals and vessels from exploiting the
living resources in the exclusive economic zone of the Philippines.
10. China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by
interfering with traditional fishing activities at Scarborough Shoal.
11. China has violated its obligations under UNCLOS 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.
12. China’s occupation of and construction activities on Mischief Reef:
i. Violated the provisions of UNCLOS concerning artificial islands, installations and
structures;
ii. Violate China’s duties to protect and preserve the marine environment under
UNCLOS;
iii. Constitute unlawful acts of attempted appropriation in violation of UNCLOS.
13. China has breached its obligations under UNCLOS 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.
14. Since the commencement of this arbitration in January 2013, China has unlawfully
aggravated and extended the dispute by:
i. Interfering with the Philippines’ rights of navigation in the waters at, and adjacent to,
Second Thomas Shoal;
ii. Preventing the rotation and resupply of Philippine personnel stationed at Second
Thomas Shoal;
iii. Endangering the health and well-being of Philippine personnel stationed at Second
Thomas Shoal;
iv. Conducting dredging, artificial island-building and construction activities at Mischief
Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson Reef, Hughes Reef and
Subi Reef.
15. China shall respect the rights and freedoms of the Philippines under the Convention,
shall comply with its duties under the Convention, including those relevant to the
protection and preservation of the marine environment in the South China Sea, and shall
exercise its rights and freedoms in the South China Sea with due regard to those of the
Philippines under the Convention.
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b. Discussion per Submission: China’s position, the Philippines’ position, and the Tribunal’s
conclusion
Submissions No. 1 and 2: The ‘Nine-Dash Line’ and China’s Claim to Historic Rights in
the Maritime Areas of the South China Sea
Reproducing below Submissions 1 and 2 as worded by the Philippines for easy
reference:
(1) China’s maritime entitlements in the South China Sea, like those of the
Philippines, may not extend beyond those expressly permitted by the UNCLOS;
(2) China’s claims to sovereign rights jurisdiction and to “historic rights” with
respect to the maritime areas of the South China Sea encompassed by the so called “nine
dash line” are contrary to UNCLOS and without lawful effect to the extent that they exceed
the geographic and substantive limits of China’s maritime entitlements expressly permitted
by UNCLOS.
1. China’s Position
The ‘nine-dash line’ invoked by China first appeared on an official Chinese map in
1948. In that year, the Ministry of the Interior of the then Republican Government of China
published a “Map Showing the Location of the Various Islands in the South Sea”. A similar
line had also appeared in privately produced cartography as early as 1933.In this original
form, the map featured 11 dashes. The two dashes in the Gulf of Tonkin were removed in
1953, rendering it a ‘nine-dash line’, and the line has appeared consistently in that nine-dash
form in official Chinese cartography since that date.
However, basically, China has never expressly clarified the nature or scope of its
claimed historic rights. Nor has it ever clarified its understanding of the meaning of this
‘nine-dash line’. It just says repeatedly that its sovereignty and jurisdiction in the South China
Sea are supported by abundant historical and legal evidence without citing these “historical
and legal evidence”. It ambiguously states that its claim to rights is “formed over a long
course of history”.
2. Philippines’ Position
The argument of the Philippines on this issue is two-fold. First, the Philippines
submits that international law do not historically permit the type of expansive claim advanced
by China’s ‘nine-dash line’ and that, even if China did possess historic rights in the South
China Sea, any such rights were extinguished by the adoption of the UNCLOS.
Second, the Philippines argues that, on the basis of the historical record of China’s
activities in the South China Sea, China cannot meet the criteria for having established
historic rights within the ‘nine-dash line’.
According to the Philippines, China first claimed the existence of such rights on 7
May 2009. The Philippines submits that Chinese historic maps dating back to 1136, including
those purporting to depict the entirety of the Empire of China, consistently show China’s
territory extending no further south than Hainan.
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3. Tribunal’s Conclusion
Within the exclusive economic zone, Article 56(1) of UNCLOS provides for the
sovereign rights and jurisdiction of the coastal State in the following terms:
“Article 56
Rights, jurisdiction and duties of the coastal State in the
exclusive economic zone
1. In the exclusive economic zone, the coastal State has:
(a) 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, such as the production of energy
from the water, currents and winds;
(b) 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;
(ii) marine scientific research;
(iii) the protection and preservation of the marine
environment;
(c) other rights and duties provided for in this
Convention.”
Furthermore, Articles 77 and 81 read as follows:
“Article 77
Rights of the coastal State over the continental shelf
1. The coastal State exercises over the continental shelf
sovereign rights for the purpose of exploring it and
exploiting its natural resources.
2. The rights referred to in paragraph 1 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.
Article 81
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Drilling on the continental shelf
The coastal State shall have the exclusive right to
authorize and regulate drilling on the continental shelf for
all purposes.” (Underscoring Supplied)
Based on the foregoing provisions, UNCLOS is categorical in giving sovereign rights
to the living and non-living resources of the exclusive economic zone to the coastal State
exclusively. This is the same with the exclusive sovereign rights given to the coastal state to
explore and exploit the natural resources found in its continental shelf.
So, how do we determine the extent of the exclusive economic zone and the
continental shelf accorded to the coastal state?
Articles 2 through 32 of UNCLOS govern the rights and obligations of States within
the territorial sea and limit the extent of the territorial sea to 12 nautical miles.
Articles 55 through 75 provide for the creation of an exclusive economic zone and
limit its extent to 200 nautical miles.
Articles 76 to 85 govern the rights and obligations of States to the continental shelf,
generally limit the continental shelf to 200 nautical miles, and set out technical criteria
according to which some States may claim a continental shelf beyond 200 nautical miles.
China has stated its view that its “relevant rights in the South China Sea, formed in
the long historical course” are “protected under international law including the UNCLOS.”
Insofar as China’s relevant rights comprise a claim to historic rights to living and non-living
resources within the ‘nine-dash line’, partially in areas that would otherwise comprise the
exclusive economic zone or continental shelf of the Philippines, the Tribunal cannot agree
with this position.
UNCLOS does not include any express provisions preserving or protecting historic
rights that are at variance with it. On the contrary, UNCLOS supersedes earlier rights and
agreements to the extent of any incompatibility upon a State Party’s adherence to UNCLOS.
The Tribunal concludes that UNCLOS defines the scope of maritime entitlements in
the South China Sea, which may not extend beyond the limits imposed therein. The ‘ninedash
line’ is contrary to UNCLOS, and is thus, without lawful effect. The Tribunal concludes
that the UNCLOS superseded any historic rights or other sovereign rights or jurisdiction in
excess of the limits imposed therein.
Submissions No. 4 and 6: The Status of Features as Above/Below Water at High Tide
Reproducing below Submissions 4 and 6 as worded by the Philippines for easy
reference:
(4) Mischief Reef, Second Thomas shoal and Subi Reef are low-tide elevations that do not
generate entitlement to a territorial sea, exclusive economic zone or continental shelf, and
are not features that are capable of appropriation by occupation or otherwise.
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(6) Gaven Reef and McKennan Reef (including Hughes Reef) are low-tide elevations that do
not generate entitlement to a territorial sea, exclusive economic zone or continental shelf, but
their low-water line may be used to determine the baseline from which the breadth of the
territorial sea of Namyit and Sin Cowe, respectively, is measured.
1. China’s Position
China stated that the Philippines asserts that some of the maritime features, about
which it has submitted claims for arbitration, are low-tide elevations, thus being incapable of
appropriation as territory. As to whether those features are indeed low-tide elevations, this
Position Paper will not comment.
2. Philippines’ Position
The Philippines recalled that low-tide elevations are defined and governed by Article
13 of the Convention. Low-tide elevations are not land territory and no measure of
occupation or control can establish sovereignty over such features.
The Philippines sought a determination as to whether certain land features in the
Spratly Islands claimed by both China and the Philippines are properly characterized as
islands, rocks, low tide elevations (LTEs), or submerged banks. Under UNCLOS, an “island”
generates both a territorial sea of 12 nautical miles and an exclusive economic zone (EEZ) of
up to 200 nautical miles, subject to delimitation of a maritime boundary with any other
countries’ overlapping territorial seas or EEZs. A “rock” is entitled to a territorial sea no
greater than 12 nautical miles, but not an EEZ. LTEs and submerged banks do not generate
any such entitlements.
The Philippines submitted that Landsat imagery of each of the five features confirms
that none is above water at high tide. In addition to satellite analysis, the Philippines relied
on what it considered to be the consistent depiction of all five features as low-tide elevations
in all published charts and on the corresponding descriptions of the features as submerged at
high tide in sailing directions and pilots.
3. Tribunal’s Conclusion
Under the submission no. 4 of the Philippines, the tribunal ruled that Mischief Reef,
Second Thomas Shoal, and Subi Reef are all LTEs that do not generate territorial seas or
EEZs, and are not subject to appropriation. They referred to the definition of LTE inscribed
in Article 13 of UNCLOS which is a naturally formed area of land which is surrounded by
and above water at low tide but submerged at high tide.
Based HMS Herald and Imperial Japanese Navy’s survey on Mischief Reef, it was
shown that there was no indication or feature above water at high tide. Second Thomas Shoal
was also first surveyed in the 1930s, although less intensively than Mischief Reef. Second
Thomas Shoal was visited by HMS Iroquois in 1931. No detailed fair plan of the reef appears
to have been produced, but it is depicted in medium scale, without any indication of a hightide
feature, on the reporting chart of the combined air/sea survey operations that the Royal
Navy undertook in that year to eliminate uncharted dangers and clear safe lanes through the
Spratly Islands. Lastly, for Subi Reef, no high-tide feature is depicted British Admiralty Chart
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No. 1201and U.S. Defense Mapping Agency Chart No. 93061 and the Tribunal is unable to
identify any source suggesting a rock or cay above high water on Subi Reef. Accordingly,
the Tribunal concluded that Subi Reef is a low-tide elevation.
In reference with submission 6 of the Philippines, they claimed that Gaven Reef and
McKennan Reef (including Hughes Reef) are LTEs that generate no maritime entitlements,
but may be used to determine baselines to measure territorial sea. However, the tribunal ruled
in the negative and declared both Gaven and McKennan Reef are above water at high tide;
they are rocks that generate territorial seas but no EEZ or continental shelf.
The Philippines argued that no high-tide feature is apparent in the satellite bathymetry
materials prepared by EOMAP, but the Tribunal did not give weight to this evidence. As
between the earlier British and Japanese materials depicting no high-tide feature on
McKennan Reef and a more recent Chinese chart depicting a height at McKennan Reef, the
Tribunal concluded that the Chinese chart is to be preferred as the more recent evidence and
that the height indicated for McKennan Reef most likely indicates a coral boulder pushed
onto the reef platform and above high water by storm action. On the part of Hughes Reef, the
Tribunal concluded that Hughes Reef is a low-tide elevation. Although the Japanese chart
appeared to indicate a high-tide feature, no height is given for this feature (in contrast to the
depiction of a sand cay on Gaven Reef (North) on the Japanese chart of Tizard Bank) and the
observation is not corroborated by any other evidence before the Tribunal. Nor did it appear
in the most recent Chinese chart.
As to the Gaven Reef, the Tribunal considered that the Japanese evidence is to be
preferred and found no more recent evidence that would disprove the existence of a sand cay
on Gaven Reef (North). Accordingly, the Tribunal concluded that Gaven Reef (North) is a
high-tide feature. However, there was no evidence in any of the sources discussed that would
suggest the existence of a high-tide feature on Gaven Reef (South) and noted the description
to the contrary in the Chinese sailing directions. The Tribunal concluded that Gaven Reef
(South) is a low-tide elevation.
Submissions No. 3 5 and 7: The Status of Features as Rocks/Islands
(3) Scarborough Shoal generates no entitlement to an exclusive economic zone or continental
shelf;
(5) Mischief Reef and Second Thomas Shoal are part of the exclusive economic zone and
continental shelf of the Philippines; and
(7) Johnson Reef, Cuarteron Reef and Fiery Cross Reef generate no entitlement to an
exclusive economic zone or continental shelf;
In Article 121 of the UNCLOS a regime of islands is defined as follows:
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
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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.”
Hence, the general rule is that islands generate the same entitlements under UNCLOS
as any other land territory. Paragraph 3 provides for the exception, which is that rocks which
cannot sustain human habitation or economic life of their own shall have no exclusive
economic zone or continental shelf. It is therefore a necessary corollary to distinguish which
of the two categories a high-tide feature would fall under—a rock or a fully-entitled island.
1. China’s Position
In connection with the Philippines’ Submissions No. 3, 5, and 7, China’s Position
Paper stated that “the Philippines is putting the cart before the horse by requesting the
Arbitral Tribunal to determine, even before the matter of sovereignty is dealt with, the issue
of compatibility of China’s maritime claims with the Convention.”
China also objected that the Philippines had selected to seek specific determinations
on the status of only nine maritime features, principally those on which China currently
maintains a presence. China posited that it is plain that, in order to determine China’s
maritime entitlements based on the Nansha Islands under the Convention, all maritime
features comprising the Nansha Islands must be taken into account.
While China has not made statements on the Article 121 status of other specific
features in the Spratly Islands, it has made general statements that the Spratly Island group as
a whole generate full maritime entitlements. In its Position Paper, China argued that the
Philippines’ selection of particular features was “an attempt at denying China’s sovereignty
over the Nansha Islands as a whole
2. Philippines’ Position
The Philippines submitted that Scarborough Shoal and all of the high-tide features in
the Spratly Islands are properly characterized as “rocks” under Article 121(3) of the
Convention. The meaning of “rock” must not be limited in terms of geological or
geomorphological characteristics. Thus, protrusions above water that are composed of coral,
mud, sand, or soil may constitute rocks within the meaning of Article 121(3) of the
Convention.
The Philippines noted that Articles 121 of the Convention should be interpreted using
the following parameters: the term “cannot” refers to the capacity or potential of the feature
to sustain human habitation or economic life, and not to an enquiry into whether the feature
actually does now sustain, or has ever in the past sustained, human habitation or economic
life. The use of “on their own” in connection with features sustaining an economic life must,
according to the Philippines, plainly mean “that the feature itself has the ability to support an
independent economic life without infusion from the outside.” It would need to be “local and
not imported”; “real and not contrived,” though “100 percent self-sufficiency is not required.”
The Philippines also argued that “economic life” is not to be equated simply to economic
value. Rather it requires some activity that presupposes more than the existence of a resource
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or the presence of an installation of an economic nature. The feature must, in its naturally
formed state, have the capacity to develop sources of production, distribution, and exchange
sufficient to support the presence of a stable human population.
In application to Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef, and McKennan Reef, in these submissions, the Philippines and its experts
maintained that Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are
indisputably, under Article 121(3), rocks. Relying largely on aerial and satellite photography,
as well as the Philippine, Chinese, UK, and U.S. sailing directions, the Philippines considered
all four features to be incapable of supporting human habitation. Finally, the Philippines
stressed that neither China’s recent island construction nor its earlier installation of small
artificial structures atop coral reefs, manned by government personnel sustained entirely with
external resources, can convert these features into fully entitled islands.
3. Tribunal’s Conclusion
In order to interpret this provision, the Tribunal must apply the provisions of the
Vienna Convention on the Law of Treaties. The general rule of interpretation is set out in
Article 31 of the Vienna Convention and provides that a treaty “shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.” Further, “any subsequent practice in the
application of the treaty which establishes the agreement of the parties regarding its
interpretation” shall be taken into account. In the Tribunal’s view, no such restriction
necessarily follows from the use of the term in Article 121(3). The dictionary meaning of
“rock” does not confine the term so strictly, and rocks may “consist of aggregates of minerals
and occasionally also organic matter. They vary in hardness, and include soft materials such
as clays.”
The use of the word “cannot” in Article 121(3) indicates a concept of capacity. This
enquiry is not concerned with whether the feature actually does sustain human habitation or
an economic life. It is concerned with whether, objectively, the feature is apt, able to, or lends
itself to human habitation or economic life. In connection with sustaining human habitation,
to “sustain” means to provide that which is necessary to keep humans alive and healthy over
a continuous period of time, according to a proper standard.
Under submission no. 3, Philippines claimed that Scarborough Shoal generates no
EEZ or continental shelf, the tribunal ruled in favor of the Philippines and declared
Scarborough Shoal is a rock that generates no EEZ. The Tribunal found that Scarborough
Shoal includes five to seven rocks that are exposed at high tide and is accordingly a high-tide
feature. That those protrusions are composed of coral is immaterial to their classification
pursuant to Article 121(3).
They obviously could not sustain human habitation in their naturally formed state;
they have no fresh water, vegetation, or living space and are remote from any feature
possessing such features. Scarborough Shoal has traditionally been used as a fishing ground
by fishermen from different States, but the Tribunal recalled that economic activity in the
surrounding waters must have some tangible link to the high-tide feature itself before it could
begin to constitute the economic life of the feature. There is no evidence that the fishermen
working on the reef make use of, or have any connection to, the high-tide rocks at
Scarborough Shoal. Nor is there any evidence of economic activity beyond fishing. There is,
17
accordingly, no evidence that Scarborough Shoal could independently sustain an economic
life of its own
In addition, under submission no. 7 of the Philippines, they claimed Johnson Reef,
Cuarterton Reef, and Fiery Cross Reef generate no entitlements to EEZ or continental shelf.
The tribunal ruled in favor of the Philippines and declared indeed that Johnson Reef,
Cuarterton Reef, and Fiery Cross Reef are rocks that generate no EEZ or continental shelf
with the following findings:
Tribunal found that Johnson Reef, in its natural condition, had at least one rock that
reaches as high as 1.2 metres above Mean Sea Level and is accordingly a high-tide feature.
Like the rocks at Scarborough Shoal, the high-tide portion of Johnson Reef lacks drinking
water, vegetation, and living space. It is a minuscule, barren feature obviously incapable, in
its natural condition, of sustaining human habitation or an economic life of its own.
Tribunal ratiocinated that Fiery Cross Reef, in its natural condition, had one
prominent rock, which remains exposed approximately one meter above high tide, and is
accordingly a high-tide feature. According to the Chinese sailing directions, the surface area
of this rock exposed at high tide amounts to only two square meters. The high-tide portion of
Fiery Cross Reef is minuscule and barren, and obviously incapable, in its natural condition,
of sustaining human habitation or an economic life of its own.
Tribunal found that Gaven Reef (North), in its natural condition, had a small sand cay
in its north-east corner that remains exposed at high tide and is accordingly a high-tide
feature. It is a minuscule, barren feature obviously incapable, in its natural condition, of
sustaining human habitation or an economic life of its own.
Tribunal found that McKennan Reef includes a feature that remains exposed at high
tide and is accordingly a high-tide feature. There is no indication that this feature is of any
significant size, and the Tribunal concludes that the height indicated on the recent Chinese
chart most likely refers to a coral boulder pushed above high water by storm activity. Such a
feature would be obviously incapable, in its natural conditions, of sustaining human
habitation or an economic life of its own. There is no evidence of any human activity on
McKennan Reef, nor has any State installed a human presence there.
The baseline of analysis is what the features can sustain in their “natural condition”
(i.e., not after construction of artificial islands, installation of desalination plants, etc.). Based
on historical evidence, none of the features in the Spratly Islands can sustain either a stable
community of people or economic activity that is not dependent on outside resources or
purely extractive in nature. The current presence of personnel on the features is dependent on
outside support and does not reflect the capacity of the features in their natural condition.
Next is the submission no. 5 of the Philippines which they posited Mischief Reef and
Second Thomas Shoal are part of the Philippines’ EEZ and continental shelf. This claim was
upheld by the tribunal and pronounced they are part of the EEZ and continental shelf of the
Philippines.
The Tribunal has already held that there is no legal basis for any Chinese historic
rights, or 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’. The Tribunal found
18
no evidence that, prior to the Convention, China ever established a historic right to the
exclusive use of the living and non-living resources of the waters of the South China Sea,
whatever use it may historically have made of the Spratly Islands themselves. In any event,
any such right would have been superseded by the adoption of the Convention and the legal
creation of the exclusive economic zone. The ‘nine-dash line’ thus cannot provide a basis for
any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas
Shoal that would overlap the entitlement of the Philippines to an exclusive economic zone
and continental shelf generated from baselines on the island of Palawan.
Submission No. 8: Alleged Interference with the Philippines’ Sovereign Rights in its
EEZ and Continental Shelf
1. China’s Position
China's position was not direct, but can be discerned from its public statements. It is
apparent that China considers it, and not the Philippines, has rights in the areas in question.
This contention was based on Chinese historic rights in the waters of the South China Sea
encompassed by the nine-dash line.
2. Philippines’ Position
The Philippines engaged in several activities on different areas like GSEC101 at the
Reed Bank, West Calamian Petroleum Block, North-West Palawan Petroleum Block,
Mischief Reef, and Second Thomas Shoal. These activities include the exploration and
exploitation of petroleum products, seismic surveys, and fishing, within the 200 nautical
miles from its baselines. China, however, objected thereto and asserted that such activities
fall within its jurisdiction, specifically the Nansha Islands where the Reed Bank is located.
The Philippines submits that under Article 57 and 76 of the Convention, "the waters,
seabed, and subsoil of the South China Sea within the 200 miles of the Philippine coast, but
beyond 12 miles from any high-tide feature the South China Sea constitute the EEZ and
continental shelf of the Philippines." It further argued that since "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. Consequently, China's interference on the
aforesaid activities in the Philippine's EEZ and continental shelf, constitute continuing
violation of Articles 56, 58, 61, 62, 73, 77, and 84 of the Convention.
3. Tribunal’s Conclusion
The Tribunal found that there exists no legal basis for any entitlement by China to
maritime zones. It ruled that the areas in question are undoubtedly part of the Philippines’
EEZ and continental shelf.
The Convention is clear on the allocation of rights within the EEZ and continental
shelf. Article 77 and Article 56 of the Convention are clear on the allocation of rights, over
non-living resources and living resources respectively, within the exclusive economic zone
and continental shelf. These provisions vested an exclusive sovereign rights to the coastal
State, which in this case is the Philippines, for the purposes of exploring and exploiting the
natural resources 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
19
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.
Submission No. 9: Alleged Failure to Prevent Chinese Nationals from Exploiting the
Philippines’ Living Resources
1. China’s Position
According to the reports of the Armed Forces of the Philippines, China maintained the
presence of government vessels, on a rotational basis, at Mischief Reef and Second Thomas
Shoal, which are low-tide elevations lying within the 200 nautical miles of the Philippines’
baselines. These vessels have been accompanied by a number of fishing vessels since 1995.
China did not address the allegation that it has unlawfully permitted its fishermen to
fish within the Philippines’ EEZ at Second Thomas Shoal or Mischief Reef, but maintained
that it does not consider the Philippines to have rights in the areas in question. It likewise
stated that it has indisputable sovereignty over Nansha Islands and their adjacent waters,
Meiji Jiao or the Mischief Reef.
2. Philippines’ Position
The Philippines submits that under Article 56 of the Convention, China violated its
obligation 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’ EEZ.
It further argued that when China seized and began occupying the Mischief Reef, just 126
nautical miles off the coast of Palawan in 1995, and when it took de facto control of Second
Thomas Shoal in 2013, it has prevented Philippines vessels from fishing there, and, in
contrast, Chinese fishing vessels have fished freely in the adjacent waters, even though they
are part of the Philippines’ EEZ.
3. Tribunal’s Conclusion
The Tribunal concluded that China has breached its obligations under Article 58(3) of
the Convention.
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.
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 UNCLOS. Article 61(1) of the Convention provides that the coastal State
shall determine the allowable catch of the living resources in its exclusive economic zone;
Article 62(2) allows the coastal State to enter into agreements or arrangements with other
State to allow access to the surplus of the allowable catch; Article 62(4) requires Chinese
nationals to comply with the procedural requirements of the Philippines. These provisions
make clear that it is the Philippines that controls the process of granting and regulating access
to fisheries of its EEZ, subject to the provisions of the Convention.
20
Submission No. 10: China’s Actions in respect of Traditional Fishing at Scarborough
Shoal
(10) China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by
interfering with traditional fishing activities at Scarborough Shoal.
1. China’s Position
China claims sovereignty over Scarborough Shoal and asserts that its waters
constitute a traditional fishing ground for Chinese fishermen. On its own account on the
incident that took place on 10 April 2012, China sets out that China were conducting normal
operations in Huangyan Island lagoon when Philippine Navy warship Gregorio del Pilar
blocked the entrance to the lagoon and boarded four Chinese fishing boats questioning and
searching the Chinese fishermen. Upon learning the incident, several Chinese patrol headed
to the Island to protect the safety of the Chinese fishermen and get rid of the Philippine
intimidation. China has consistently adhered to its position of solving the issue through
diplomatic consultation but Philippines kept on escalating the situations by erroneous
remarks to mislead the public. China however responded against the allegations that China’s
conduct fell short of its obligation to resolve the Parties’ dispute peacefully. In it’s position,
the Director General referred to Article 2.4 of the UN Charter that on 10 April 2012, the
Philippines used a warship to harass unarmed Chinese fishermen which is a sign of force.
China believes that it is the Philippines that has violated this Article and China deeply regrets
this. This position has not made specific statements concerning the status of Filipino
fishermen at Scarborough Shoal.
2. Philippines’ Position
The Philippines submit that China violated Article 2(3) in connection to Articles 51(1)
and 62(3) ; as well as Articles 279 and 300 of the Convention.
a. Article 2(3) - "Sovereignty over the territorial sea is exercised subject to this
Convention and to other rules on international law"
Philippines submits that the article imposes substantive obligations on Sates
and that a State might determine the extent of its territorial sea on the coniditon that
such determination "does not infringe on rights acquired by other states". The
traditional fishing rights of a country acquired a vested interest when the country have
been accustomed from time immemorial to fish in a certain area.
Philippines also submits that there is 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 as established in national and international jurisprudence. In
Paquete Habana, US Supreme Court recognized that fishing vessels are exempted
from prize capture in wartime. In Eritrea v. Yemen arbitration, Yemen was required to
ensure the free access and enjoyment of traditional fishing for fishermen of both
Eritrea and Yemen and shall be preserved for the benefit of the lives and livelihoods.
Accordingly, Philippines argues that a State may restrict fishing rights only to
the extent those activities may go beyond those that have traditionally been
conducted. It further argues that fishing by Philippine nationals at Scarborough Shoal
21
plainly meets the threshold required to deem it a protected activity under international
law by the fishing practices in the area as characterized as long, deep, peaceful,
uninterrupted ancient and having occurred since time immemorial. These
characteristics were supported by the colonial maps, twentieth century publications
and testimony of Filipino fishermen.
Philippines argue that China also breached its obligation under Article 2(3) of
the UN Charter and Article 279 of the Convention in resolving disputes through
peaceful means when it rejected the Philippine proposal to settle the parties’ dispute
through recourse to the International Tribunal of the Law of the Sea and instead
deployed Chinese vessels preventing Philippine vessels from entering the area.
b. Article 51(1) - “an archipelagic State shall recognize traditional fishing
rights and other legitimate activities of the immediately adjacent neighbouring State
in certain areas falling within archipelagic waters. ”; and
c. Article 62(3) - “in 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.”
Philippines argue that these provisions are relevant because they express the
recognition and importance of traditional fishing by the nationals of the adjacent
coastal states and confirms the intent of drafters to preserve traditional fishing.
d. Articles 279 and 300 - Philippines considers China’s conduct to be in
breach of its obligations in the said Articles of the Convention and of the general
international law to refrain from any acts that might aggravate or extend the dispute.
3. Tribunal’s Conclusion
The Tribunal notes that both parties claim sovereignty over the Scarborough Shoal
and both consider it to be a traditional fishing ground for their nationals. The tribunal,
however, only considers the issue on fishing rights and refrain from commenting on the
sovereignty due to limited jurisdiction.
A traditional fishing, also referred to as artisanal fishing is was noted to be simple,
efficient and does not extend to large-scale commercial or industrial fishing. The legal basis
for protecting the 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. Said right attached to the individuals and
communities that have traditionally fished in an area, which is actually a private right. In
international law, private rights acquired under existing law do not cease on a change of
sovereignty and remained unaffected by any territorial delimitation.
Prior to the exclusive economic zone, expansion of jurisdiction amounts to adjustment
of boundaries or change in sovereignty and acquired rights were protected. But this differed
with the adoption of the Convention of the exclusive economic zone.
22
The Tribunal does not consider it possible that the drafters intended for traditional
fishing rights to survive the introdction of exclusive economic zone. Traditional fishing rights
are accorded differing treatment across maritime zones under the Convention. In archipelagic
waters, traditional fishing rights are expessly protected in Article 51(1). In exclusive
economic zone, it is extinguished except insofar as Article 62(3) which specifies that there is
a need to minimize economic dislocation in Stated whose nationals have habitually fished in
the zone. Thus, Tribunal confirms that the drafters did not intend to preserve traditional
fishing rights in exclusive economic zone.
It is the view of the Tribunal that it is not necessary to explore the limits on the
protection due in customary international law to the acquired rights of indiviuals 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 period of
time is not compatible with the respect due under the international law to teh traditional
fishing rights of Filipino fishermen.
The Tribunal does not find the record before it sufficient to support such a claim in
respect of either parties with respect to Philippines' claim that China's action at Scarborough
Shoal represented a specific failure to fulfill its duties to settle disputes by peaceful means.
Therefore, China is found to have unlawfully prevented Filipino fishermen from
engaging in traditional fishing at Scarborough Shoal without prejudice to the question of
sovereignty over Scarborough Shoal.
Submissions No. 11 and 12(B): Alleged Failure to Protect and Preserve the Marine
Environment
(11) 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;
(12) 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; . . .
1. China’s Position
No direct position with repect to the allegations in this Submission were stated. It was
discerned from contemporaneous official statements.
China reiterated through the Chinese Embassy in Manila that China has a law on
illegal catching of turtles and corals and those who violate will be punished. China also stated
in May 2015 that it will strictly observe provisions of the conventions and honour her
obligations in good faith. But the Tribunal has no evidence that Chinese fishermen involved
in poaching of endangered species have been prosecuted under Chinese law.
About the Chinese construction activites at Mischief Reef, the Chinese Foreign
Minister Spokesperson stated that these projects have gone trhough scientific assesments and
rigorous tests to meet civilian demands and for the future to monitor and protect ecological
23
environment conservation. The Philippines located the SOA Statement entitled "Construction
Work at Nansha Reefs Will Not Harm Oceanic Ecosystems". It stated therein that the
expansion of the Nansha reefs uses the "nature simulation" method as its comprehensive
technical concept whereby the displacement of bioclasts during wind storms and high waves
combines equilibrium points of the shallow reef to form stable supertidal zones and evolves
into oceanic oasis. It also stated that the land reclamation area will produce the ecological
effects by going from desalination, solidification, efflorescense, to a green coral reef
ecological environment.
A SOA Report by government-sponsored organization commented that the
construction at Nansha Reef are in all respects in compliance with domestic laws and
regulations and it was undertaken with an emphasis on the protection of the ecosystem and
carried out after scientific assessment and feasibility studies. Nansha Reef was rated as
"subhealthy"
before the construction which remained the same after the construction. Hence,
concluding that the Reef was not affected and harmed.
China did not reply on the Tribunal's request for a copy of the environmental impact
study if it conducted any.
2. Philippines’ Position
Philippines argue that China's toleration, encouragement of, and failure to prevent
environmentally destructive fishing practices by its nationals violates Article 192 and 194 of
the Convention in its "duty to protect and preserve the marine environment" when it allowed
its fishermen to harvest endangered species and use dynamite to kill fish and destroys coral as
well as the use of cyanide to harvest live fish which were premised on the incidents in April
2012.
Philippines justifies the argument by explaining 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 reef to support fishes and other animals. The harvesting of endangered
species compounds environmental impact and reduces biodiversity. The usage of explosives
pulverises corals, weakens the structure of the reef and reduces biodiversity when killing
fishes and destroying habitat. As for cyanide, it can kill or injure non-targert species. It also
impacts the Philippines, as per Professor Carpenter, because of its connectivity of the eastern
South China Sea through ocean currents.
Philippines also notes the inevitable harm to the fragile ecosystem due to the
extensive artificial island-building program in the Reefs. It directly impacts and alter the
topography that took years to form and causes dramatic reductions in poputaltion and local
extinction of prominent fishes and invertebtrates. Recovery from these severe disturbances is
uncertain.
Philippines also alleged that China breached Article 192 because a State has general
obligation to take "active measures" to prevent harm, to "conserve marine living resources",
and to "preserve the ecological balance of the oceans as a whole"; Article 194(5) with respect
to measures necessary to protect and preserve "rare or fragile ecosystems" and "places that
provide habitats for endangered species"; and Articles 205 and 206 absence of any evidence
that China carried out an environmental impact assessment and no science-based evaluation
has been made.
24
Philippines highlighted five obligations that it considers applicable to States: (1) to
protect and preserve marine ecosystems, (2) to ensure sustainable use of biological
resources, (3) to protect and preserve endangered species, (4) to apply a precautionary
approach in all of these respects, and (5) to consult and cooperate with relevant coastal States.
3. Tribunal’s Conclusion
The Tribunal is satisfied that Chinese fishing vessels have been involved in the
harvesting of endangered species in Scarborough Shoal and in Second Thomas Shoal based
on several events recounted in the Philippines' Memorial, review of satellite imagery,
photographic and video evidence, contemporaneous press reports, scientific studies and
materials for Professor McManus.
The Tribunal also has 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. Therefore, the Tribunal finds China of breach in its obligations under
Article 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 form the fragile
ecosystems at Scarborough Shoal and Second Thomas Shoal.
The Tribunal is initially satisfied that Chinese fishing vessels were engaged in the use
of dynamite and cyanide on several incidents, thus, a breach of Articles 192, 194(2) and
194(5) of the Conevntion. However, the incidents referred pre-dates the the 1999 Marine
Environment Law Protection of the People's Republic of China whereby local fishing
autorities imposed a penalty on fishermen caught blasting coral reefs near Scarborough Shoal
in 2000. The Tribunal finds that there is little in record to suggest that China has failed to do
so with respect to dynamite and cyanide fishing and is not prepared to make a finding with
this respect.
The Tribunal accepts the conclusion in the Ferse Report that "China's recent
construction activities have and will cause environmental harm to coral reefs on the seven
reefs, beyond the pre-existing damage to reefs that resulted from destructive fishing and the
collection of corals and clams, storm damage and human presence. The harm caused by direct
burial of reef habitat during the construction of artificial isalnds is near-permanent and
prospects for rejuvenation are low.
The Tribunal is not convinced that China attempted to cooperate or coordinate with
other States ordering the South China Sea as required in Articles 197 and 123. The Tribunal
cannot make a definitive finding that China has prepared an environmental impact assessment
because of its repeated assertions that China undertook thorough studies. But the Tribunal
finds that China has not fulfilled its duties under Article 205 to communicate the
environmental impact assessment.
Therefore, China has breached Articles 192 and 194(5) of the Convention by its
toleartion of Chinese fishing vessels engaging in harmful harvesting activities of endangered
species at Scarborough Shoal, Second Thomas Shoal and in the other features of Spratly
Islands. China also breached Articles 192, 194(1), 194(5), 197, 123, and 206 of the
Convention through its island-building activities on the seven reefs.
25
Submission No. 12: Occupation and Construction Activities on Mischief Reef
The Philippines seeks a declaration that:
China’s occupation of and construction activities on Mischief Reef:
1. violate the provisions of the Convention concerning artificial
islands, installations and structures;
…
2. constitute unlawful acts of attempted appropriation in violation
of the Convention;
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. In one instance, Filipino fishermen reported the
presence of an estimated 1,000 uniformed men aboard Chinese vessels. On February that
same year, Philippine authorities recognized a construction being undertaken on the feature.
This was answered by Chinese officials, saying that they were merely building a “typhoon
shelter” on Mischief Reef.
In addition to this, China has begun intensive construction of artificial islands on the
seven coral reefs there, which commenced in 2014. 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. Additionally, 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,” a development that, according to media reports, may indicate the
intention to build an airstrip.
1. China’s Position
The structures built by Chinese fishing authorities were described a “typhoon or wind
shelter” for the “purpose of protecting the lives of Chinese fisherman and their production.”
Chinese statements have continued to characterize China’s activities as intended for civilian
use and not for military purposes.
2. Philippines’ Position
Article 56 (1) of the UNCLOS provides coastal States the “exclusive right to regulate
the establishment and use” of such structures within its exclusive economic zone. On this
basis, China’s construction of artificial islands, installations and structures on Mischief Reef
violate 60 and 80 of the UNCLOS.
Since Mischief Reef is located within 200 M of Palawan, it is capable of generating
an EEZ or continental shelf, or within the EEZ of the Philippines
3. Tribunal’s Conclusion
Mischief Reef is a low-tide elevation and not a rock or fully entitled island and, as
such, generates no entitled to maritime zones of its own.
26
Thus, it follows that there exist no legal basis for any entitlement by China to
maritime zones in the area of Mischief Reef.
Mischief Reef is necessarily a lowtide elevation located within an the exclusive
economic zone of the Philippines. China has, through its construction of installation and
artificial islands at Mischief Reef without the authorization of the Philippines, breached
Articles 60 and 80 of the UNCLOS with respect to Philippines’ sovereign rights in the EEZ
and continental shelf.
Submission 13: Operation of Law Enforcement Vessels in a Dangerous Manner
(13) 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.
The factual precedents which spawned this issue are the interactions between Chinese
law enforcement vessels and Philippine coast guard and surveillance ships on two separate
occasions: 28 April 2012 and on 26 May 2012.
a. Near-Collision of Philippine Vessels BRP Pampanga and BRP Edsa II with Chinese
Vessel FLEC 310
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. It came in contact with FLEC 310, a vessel operated
by China’s Fisheries and Law Enforcement Command. According to BRP
Pampanga’s 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.”
b. Near-Collision of Philippine Vessel MCS 3008 with Several Chinese Vessels upon
Approach to Scarborough Shoal
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 Philippine Coast Guard when it was approached by CMS 71.
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 its direction at an alarmingly fast rate.
Following these incidents, MCS 3008 was pursued by three Chinese vessels:
FLEC 303, CMS 71, and CMS 84, until MSC 3008 reached BRP Corregidor.
1. China’s Position
China maintained that the presence of Philippine naval vessels at Scarborough Shoal
constituted “provocations” that forced China to take the necessary measure to safeguard its
sovereignity.
27
2. Philippines’ Position
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. Thus, 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, 1972 (the “COLREGS”).
3. Tribunal’s Conclusion
Article 94 incorporates the COLREGS into the UNCLOS and they are consequently
binding on China. It follows that a violation of the COLREGS, as “generally accepted
international regulations” concerning measures to ensure maritime safety, constitutes a
violation of the Convention itself.
Tribunal finds that China has created serious risk of collision and danger to Philippine
vessels and personnel and finds to have violated Rules 2, 6, 7, 8, 15 (safe speed, risk of
collision, safe distance rules) of the COLREGS, and as a consequence, to be in breach of
Article 94 of the UNCLOS.
Submission No. 14: Aggravation or Extension of the Dispute between the Parties
The Philippines submits:
Since the commencement of this arbitration in January 2013, China has unlawfully
aggravated and extended the dispute by, among other things:
(1) interfering with the Philippines’ rights of navigation in the waters at, and
adjacent to, Second Thomas Shoal;
(2) preventing the rotation and resupply of Philippine personnel
stationed at Second Thomas Shoal;
(3) endangering the health and well-being of Philippine personnel
stationed at Second Thomas Shoal; and
(4) conducting dredging, artificial island-building and construction
activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef, Johnson Reef, Hughes Reef and Subi Reef.
a. Chinese Actions in and around Second Thomas Shoal
On 7 May 1999, the Philippine Navy grounded BRP Sierra Madre on Second
Thomas Shoal, where it has remained to the present day. Beginning in February 2013,
the Armed Forces of the Philippines reported the repeated presence of Chinese
Government vessels and unidentified aircraft in the vicinity of Second Thomas Shoal,
the situation has only gotten worse since.
Thereafter, the Philippines delivered a Note Verbale to China, objecting to the
presence of Chinese vessels in the area of Second Thomas Shoal, asserting that it
forms part of the continental shelf of the Philippines. China has responded publicly as
follows:
28
“Second Thomas Shoal is part of the Nansha Islands. China’s
possession of the islands and the surrounding waters is indisputable.
Official Chinese vessels have conducted normal patrols in these
waters, this cannot be questioned…”
The Philippines responded, stating that it rejects the statement and that the
government cannot help but consider it as a threat to prevent the Philippines from
delivering essential supplies to its naval personnel stationed there.
b. China’s Interference in the Rotation and Resupply of Philippine Personnel at Second
Thomas Shoal
On 9 March 2014, two China Coast Guard vessels intercepted two Philippine
vessels, which had been dispatched by the Philippines to conduct rotation and
resupply operations for personnel stationed aboard BRP Sierra Madre, and prevented
the Philippine vessels from entering Second Thomas Shoal.
Several days later, the Philippines was able to provide some essential food and
water to its personnel aboard the Sierra Madre by means of an airdrop. However, this
is an interim solution at best, as the Philippines still has not been able to rotate its
personnel (a step which can be accomplished only by sea), and its capacity to deliver
supplies by air is limited.
c. China’s Dredging, Artificial Island-Building and Construction Activities
Since the commencement of the arbitration, China has greatly intensified its
programme of building artificial islands and installations at Mischief Reef, Cuarteron
Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi
Reef.
1. China’s Position
China consistently argued that its activities are un reasonable, justified and lawful, for
it has undisputable sovereignity over the islands on dispute.
China has never accepted any compulsory procedures in respect of these claims, and
that there has been an agreement existing between China and Philippines to settle their
relevant disputes by negotiations, nevertheless, the latter initiated by unilateral action, the
present arbitration.
2. Philippines’ Position
China’s actions constitute aggravation and extension of the dispute which are
inconsistent with Articles 279 and 300 of the UNCLOS which requires the parties to settle
any dispute between then concerning the interpretation or application of the Convention by
peaceful means” with reference to the “basic principles of good faith and abuse of rights”
China has dramatically and dangerously altered the status quo pendent lite” of the Second
Thomas Shoal singe the commencement of the arbitration by unlawfully preventing the
routine rotation of the Philippines.
29
3. Tribunal’s Conclusion
Tribunal finds that there exists no legal basis for any entitle of China to maritime
zones in the area of Second Thomas Shoal, it being a low-tide elevation located within the
EEZ of the Philippines.
The Tribunal considers that China’s intensified construction of artificial islands on the
seven features in the Spratley’s Islands during the course of the proceedings has
unequivocally aggravated the disputes between China and Philippines by construction
artificial island located within the latter’s EEZ and continental shelf, and area In which only
the Philippines has sovereign rights.
Submission No. 15: The Future Conduct of the Parties
(15) China shall respect the rights and freedoms of the Philippines under the Convention,
shall comply with its duties under the Convention, including those relevant to the protection
and preservation of the marine environment in the South China Sea, and shall exercise its
rights and freedoms in the South China Sea with due regard to those of the Philippines under
the Convention.
1. China’s Position
China has not directly stated its position with respect to Submission No. 15 as
amended.
2. Philippines’ Position
The focus of Submission No. 15 is prospective and that China’s “significant,
persistent and continuing violations of the Philippines rights under the convention, and
China’s “statements and conduct in this regard provide ample justification for ordering China
to respect the rights and freedoms of the Philippines in the future, and to honour its
environmental obligations.”
3. Tribunal’s Conclusion
The Tribunal finds that the propositions under this Submission fall within the basic
rule of “pacta sunt servanda”, expressed in Article 26 of the Vienna Convention on the Law
of Treaties. In essence, what the Philippines is requesting is a declaration from the Tribunal
that China shall do what it is already obliged by the Convention to do.
The Tribunal considers it beyond dispute that both Parties are obliged to comply with
the Convention, including its provisions regarding the resolution of disputes, and to respect
the rights and freedoms of other States under the Convention. Neither Party contests this, and
the Tribunal is therefore not persuaded that it is necessary or appropriate for it to make any
further declaration.

c. What is the legal basis of the Philippine’s claim over Sabah? How about
Malaysia’s arguments?

A. GENERAL REFERENCES
Treaty of Peace Between the United States of America and the Kingdom of Spain (Treaty
of Paris)*By the President of the United States of America
[Signed in Paris, December 10, 1898]
A Proclamation.
Whereas, a Treaty of Peace between the United States of America and Her Majesty the Queen
Regent of Spain, in the name of her August Son, Don Alfonso XIII, was concluded and signed
by their respective plenipotentiaries at Paris on the tenth day of December, 1898, the original of
which Convention being in the English and Spanish languages, is word for word as follows:
THE UNITED STATES OF AMERICA AND HER MAJESTY THE QUEEN REGENT OF
SPAIN, IN THE NAME OF HER AUGUST SON DON ALFONSO XIII, desiring to end the
state of war now existing between the two countries, have for that purpose appointed as
Plenipotentiaries:
THE PRESIDENT OF THE UNITED STATES,
WILLIAM R. DAY, CUSHMAN K. DAVIS, WILLIAM P. FRYE, GEORGE GRAY, and
WHITELAW REID, citizens of the United States;
AND HER MAJESTY THE QUEEN REGENT OF SPAIN,
DON EUGENIO MONTERO RIOS, President of the Senate
DON BUENAVENTURA De ABARZUZA, Senator of the Kingdom and ex-Minister of the
Crown,
DON JOSE DE GARNICA, Deputy to the Cortes and Associate Justice of the Supreme Court;
DON WENCESLAO RAMIREZ DE VILLA-URRUTIA, Envoy Extraordinary and Minister
Plenipotentiary at Brussels, and
DON RAFAEL CERERO, General of Division;
Who, having assembled in Paris, and having exchanged their full powers, which were found to
be in due and proper form, have, after discussion of the matters before them, agreed upon the
following articles:

ARTICLE I
Spain relinquishes all claim of sovereignty over and title to Cuba.
And as the island is, upon its evacuation by Spain, to be occupied by the United States, the
United States will, so long as such as occupation shall last, assume and discharge the obligations
that may under international law result from the fact of its occupation, for the protection of life
and property.
ARTICLE II
Spain cedes to the United States the island of Porto Rico and other islands now under Spanish
sovereignty in the West Indies, and the island of Guam in the Marianas or Ladrones.
ARTICLE III
Spain cedes to the United States the archipelago known as the Philippine Islands, and
comprehending the islands lying within the following line:
A line running from west to east along or near the twentieth parallel of north latitude, and
through the middle of the navigable channel of Bachi, from the one hundred and eighteenth
(118th) to the one hundred and twenty seventh (127th) degrees meridian of longitude east of
Greenwich, thence along the one hundred and twenty seventh (127th) degree meridian of
longitude east of Greenwich to the parallel of four degree and forty five minutes (4°45′) north
latitude, thence along the parallel of four degrees and forty five minutes (4°45′) north latitude to
its intersection with the meridian of longitude one hundred and nineteen degrees and thirty five
minutes (119°35′) east of Greenwich, thence along the meridian of longitude one hundred and
nineteen degrees and thirty five minutes (119°35′) east of Greenwich to the parallel of latitude
seven degrees and forty minutes (7°40′) north, thence along the parallel of latitude seven degrees
and forty minutes (7°40′) north to its intersection with the one hundred and sixteenth (116th)
degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the
tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree
meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth
(118th) degree meridian of longitude east of Greenwich to the point of beginning.
The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three
months after the exchange of the ratifications of the present treaty.
ARTICLE IV
The United States will, for the term of ten years from the date of the exchange of the ratifications
of the present treaty, admit Spanish ships and merchandise to the ports of the Philippine Islands
on the same terms as ships and merchandise of the United States.
ARTICLE V
The United States will, upon the signature of the present treaty, send back to Spain, at its own
cost, the Spanish soldiers taken as prisoners of war on the capture of Manila by the American
forces. The arms of the soldiers in question shall be restored to them.
Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the
Philippines, as well as the island of Guam, on terms similar to those agreed upon by the
Commissioners appointed to arrange for the evacuation of Porto Rico and other islands in the
West Indies, under the Protocol of August 12, 1898, which is to continue in force till its
provisions are completely executed.
The time within which the evacuation of the Philippine Islands and Guam shall be completed
shall be fixed by the two Governments. Stands of colors, uncaptured war vessels, small arms,
guns of all calibres, with their carriages and accessories, powder, ammunition, live stock, and
materials and supplies of all kinds, belonging to the land and naval forces of Spain in the
Philippines and Guam, remain the property of Spain. Pieces of heavy ordnance, exclusive of
field artillery, in the fortifications and coast defenses, shall remain in their emplacements for the
term of six months, to be reckoned from the exchange of ratifications of the treaty; and the
United States may, in the mean time, purchase such materials from Spain, if a satisfactory
agreement between the two Governments on the subject shall be reached.
ARTICLE VI
Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons
detained or imprisoned for political offenses, in connection with the insurrections in Cuba and
the Philippines and the war with the United States.
Reciprocally, the United States will release all persons made prisoners of war by the American
forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the
insurgents in Cuba and the Philippines.
The Government of the United States will at its own cost return to Spain and the Government of
Spain will at its own cost return to the United States, Cuba, Porto Rico, and the Philippines,
according to the situation of their respective homes, prisoners released or caused to be released
by them, respectively, under this article.
ARTICLE VII
The United States and Spain mutually relinquish all claims for indemnity, national and
individual, of every kind, of either Government, or of its citizens or subjects, against the other
Government that may have arisen since the beginning of the late insurrection in Cuba and prior
to the exchange of ratifications of the present treaty, including all claims for indemnity for the
cost of the war.

The United States will adjudicate and settle the claims of its citizens against Spain relinquished
in this article.

ARTICLE VIII

In conformity with the provisions of Articles I, II, and III of this treaty, Spain relinquishes in
Cuba, and cedes in Porto Rico and other islands in the West Indies, in the island of Guam, and in
the Philippine Archipelago, all the buildings, wharves, barracks, forts, structures, public
highways and other immovable property which, in conformity with law, belong to the public
domain, and as such belong to the Crown of Spain.
And it is hereby declared that the relinquishment or cession, as the case may be, to which the
preceding paragraph refers, cannot in any respect impair the property or rights which by law
belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or
private establishments, ecclesiastical or civic bodies, or any other associations having legal
capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of
private individuals, of whatsoever nationality such individuals may be.
The aforesaid relinquishment or cession, as the case may be, includes all documents exclusively
referring to the sovereignty relinquished or ceded that may exist in the archives of the Peninsula.
Where any document in such archives only in part relates to said sovereignty, a copy of such part
will be furnished whenever it shall be requested. Like rules shall be reciprocally observed in
favor of Spain in respect of documents in the archives of the islands above referred to.
In the aforesaid relinquishment or cession, as the case may be, are also included such rights as
the Crown of Spain and its authorities possess in respect of the official archives and records,
executive as well as judicial, in the island above referred to, which relate to said islands or the
rights and property of their inhabitants. Such archives and records shall be carefully preserved,
and private persons shall without distinction have the right to require, in accordance with law,
authenticated copies of the contracts, wills and other instruments forming part of notarial
protocols or files, or which may be contained in the executive or judicial archives, be the latter in
Spain or in the islands aforesaid.

ARTICLE IX
Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the
present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove
therefrom, retaining in either event all their rights of property, including the right to sell or
dispose of such property or of its proceeds; and they shall also have the right to carry on their
industry, commerce and professions, being subject in respect thereof to such laws as are
applicable to other foreigners. In case they remain in the territory they may preserve their
allegiance to the Crown of Spain by making, before a court of record, within a year from the date
of the exchange of ratifications of this treaty, a declaration of their decision to preserve such
allegiance; in default of which declaration they shall be held to have renounced it and to have
adopted the nationality of the territory in which they may reside.
The civil rights and political status of the native inhabitants of the territories hereby ceded to the
United States shall be determined by the Congress.

ARTICLE X
The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be
secured in the free exercise of their religion.
ARTICLE XI
The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her
sovereignty shall be subject in matters civil as well as criminal to the jurisdiction of the courts of
the country wherein they reside, pursuant to the ordinary laws governing the same; and they shall
have the right to appear before such courts, and to pursue the same course as citizens of the
country to which the courts belong.

ARTICLE XII
Judicial proceedings pending at the time of the exchange of ratifications of this treaty in the
territories over which Spain relinquishes or cedes her sovereignty shall be determined according
to the following rules:
1. Judgments rendered either in civil suits between private individuals, or in criminal matters,
before the date mentioned, and with respect to which there is no recourse or rights of review
under the Spanish law, shall be deemed to be final, and shall be executed in due form by
competent authority in the territory within which such judgments should be carried out.
2. Civil suits between private individuals which may on the date mentioned be undetermined
shall be prosecuted to judgment before the court in which they may then be pending or in the
court that may be substituted therefor.
3. Criminal actions pending on the date mentioned before the Supreme Court of Spain against
citizens of the territory which by this treaty ceases to be Spanish shall continue under its
jurisdiction until final judgment; but, such judgment having been rendered, the execution thereof
shall be committed to the competent authority of the place in which the case arose.

ARTICLE XIII
The rights of property secured by copyrights and patents acquired by Spaniards in the Island of
Cuba, and in Porto Rico, the Philippines and other ceded territories, at the time of the exchange
of the ratifications of this treaty, shall continue to be respected. Spanish scientific, literary and
artistic works, not subversive of public order in the territories in question, shall continue to be
admitted free of duty into such territories, for the period often years, to be reckoned from the
date of the exchange of the ratifications of this treaty.

ARTICLE XIV
Spain shall have the power to establish consular officers in the ports places of the territories, the
sovereignty over which has been either relinquished or ceded by the present treaty.

ARTICLE XV
The Government of each country will, for the term of ten years, accord to the merchant vessels
of the other country the same treatment in respect of all port charges, including entrance and
clearance dues, light dues, and tonnage duties, as its accords to its own merchant vessels, not
engaged in the coastwise trade.
This article may at any time be terminated on six months’ notice given by either Government to
the other.
ARTICLE XVI
It is understood that any obligations assumed in this treaty by the United States with respect to
Cuba are limited to the time of its occupancy thereof; but it will upon the termination of such
occupancy, advise any Government established in the island to assume the same obligations.

ARTICLE XVII
The present treaty shall be ratified by the President of the United States, by and with the advice
and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain; and the
ratifications shall be exchanged at Washington within six months from the date hereof, or earlier
if possible.
In faith whereof, we, the respective Plenipotentiaries, have signed this treaty and have hereunto
affixed our seals.
Done in duplicate at Paris, the tenth day of December, in the year of Our Lord one thousand
eight hundred and ninety-eight.
Treaty Between the Kingdom Spain and the United States of America forCession of
Outlying Islands of the Philippines [1900]*

ARTICLE
Relinquishment of islands to the United States.
The United States of America and Her Majesty the Queen Regent of Spain, in the name of Her
August Son, Don Alfonso XIII, desiring to remove any ground of misunderstanding growing out
of the interpretation of Article III of the Treaty of Peace concluded between them at Paris the
tenth day of December, one thousand eight hundred and ninety eight, whereby Spain cedes to the
United States the archipelago known as the Philippine Islands and comprehending the islands
lying within certain described lines, and having resolved to conclude a Treaty to accomplish that
end, have for that purpose appointed as their respective plenipotentiaries:
The President of the United States, John Hay, Secretary of State of the United States;
and Her Majesty the Queen Regent of Spain, the Duke de Arcos, Envoy Extraordinary and
Minister Plenipotentiary of Spain to the United States;
who, having met in the city of Washington and having exchanged their full powers, which were
found to be in due and proper form, have agreed upon the following sole article:
SOLE ARTICLE
Spain relinquishes to the United States all title and claim of title, which she may have had at the
time of the conclusion of the Treaty of Peace of Paris, to any and all islands belonging to the
Philippine Archipelago, lying outside the lines described in Article III of that Treaty and
particularly to the islands of Cagayan, Sulu and Sibutu and their dependencies, and agrees that
all such islands shall be comprehended in the cession of the Archipelago as fully as if they had
been expressly included within those lines.
The United States, in consideration of this relinquishment, will pay to Spain the sum of one
hundred thousand dollars ($100,000) within six months after the exchange of the ratifications of
the present treaty.
The present treaty shall be ratified by the President of the United States, by and with the advice
and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain, after approval
by the Cortes of the Kingdom, and the ratifications shall be exchanged at Washington as soon as
possible.

In faith whereof we, the respective Plenipotentiaries, have signed this Treaty and have hereunto
affixed our seals.
Done in duplicate at the city of Washington, the 7th day of November, in the year of Our Lord
one thousand nine hundred.

JOHN HAY (SEAL)

ARCOS (SEAL)

Convention Between the United States of America and Great Britain

Delimiting the Boundary Between the Philippine Archipelago and the State
of North Borneo [1930]

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA

A PROCLAMATION

WHEREAS a convention between the United States of America and His Majesty the King of Great
Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, delimiting definitely
the boundary between the Philippine Archipelago (the territory acquired by the United States of
America by virtue of the treaties of December 10, 1898, and November 7, 1900, with Her Majesty
the Queen Regent of Spain) and the State of North Borneo which is under British protection, was
concluded and signed by their respective Plenipotentiaries at Washington on the second day of
January, one thousand nine hundred and thirty, the original of which convention is word for word
as follows:

The President of the United States of America and His Majesty the King of Great Britain, Ireland
and the British Dominions beyond the Seas, Emperor of India.

Being desirous of delimiting definitely the boundary between the Philippine Archipelago (the
territory acquired by the United States of America by virtue of the Treaties of December 10, 1898,
and November 7, 1900, with Her Majesty the Queen Regent of Spain) and the State of North
Borneo which is under British protection.
Have resolved to conclude a Convention for that purpose and have appointed as their
plenipotentiaries:

The President of the United States of America, Henry L. Stimson, Secretary of State of the
United States; and His Majesty the King of Great Britain, Ireland and the British Dominions
beyond the Seas, Emperor of India,

For Great Britain and Northern Ireland:

The Right Honorable Sir Esme Howard, G.C.B., G.C.M.G., C.V.O., His Majesty’s
Ambassador Extraordinary and Plenipotentiary at Washington; Who, having communicated to
each other their respective full powers found in good and due form have agreed upon and
concluded the following Articles:

ARTICLE I

It is hereby agreed and declared that the line separating the islands belonging to the Philippine
Archipelago on the one hand and the islands belonging to the State of North Borneo which is under
British protection on the other hand shall be and is hereby established as follows:

From the point of intersection of the parallel of four degrees forty-five minutes (4°45′) north
latitude and the meridian of longitude one hundred twenty degrees (120° 0) east of Greenwich,
(being a point on the boundary defined by the Treaty between the United States of America and
Spain signed at Paris, December 10, 1898), a line due south along the meridian of longitude one
hundred twenty degrees (120° 0′) east of Greenwich to its point of intersection with the parallel of
four degrees twenty-three minutes (4° 23) north latitude;

thence due west along the parallel of four degrees twenty-three minutes (4° 23) north latitude to
its intersection with the meridian of longitude one hundred nineteen degrees (119° 0′) east of
Greenwich;

thence due north along the meridian of longitude one hundred nineteen degrees (199°0′) east of
Greenwich to its intersection with the parallel of four degrees forty-two minutes (4°42″) north
latitude;

thence in a straight line approximately 45° 54′ true (N 45° 54′ E) to the intersection of the parallel
of five degrees sixteen minutes (5° 16′) north latitude and the meridian of longitude one hundred
nineteen degrees thirty-five minutes (119° 35′) east of Greenwich;

thence in a straight line approximately 314° 19′ true (N 45° 41′ W) to the intersection of the parallel
of six degrees (6° 0′) north latitude and the meridian of longitude one hundred eighteen degrees
fifty minutes (118° 50′) east of Greenwich;

thence due west along the parallel of six degrees (6° 0′) north latitude to its intersection with the
meridian of longitude one hundred eighteen degrees twenty minutes (118° 20′) east of Greenwich;

thence in a straight line approximately 307° 40′ true (N 52° 20′ W) passing between Little
Bakkungaan Island and Great Bakkungaan Island to the intersection of the parallel of six degrees
seventeen minutes (6° 17′) north latitude and the meridian of longitude one hundred seventeen
degrees fifty-eight minutes (117°58′) east of Greenwich;

thence due north along the meridian of longitude one hundred seventeen degrees fifty-eight
minutes (117° 58′) east of Greenwich to its intersection with the parallel of six degrees fifty-two
minutes (6° 52′) north latitude;

thence in a straight line approximately 315° 16′ true (N 44° 44′ W) to the intersection of the parallel
of seven degrees twenty-four minutes forty-five seconds (7° 24′ 45″) north latitude with the
meridian of longitude one hundred seventeen degrees twenty-five minutes thirty seconds (117° 25′
30″) east of Greenwich;
thence in a straight line approximately 300° 56′ true (N 59° 4′ W) through the Mangsee Channel
between Mangsee Great Reef and Mangsee Islands to the intersection of the parallel of seven
degrees forty minutes (7° 40′) north latitude and the meridian of longitude one hundred seventeen
degrees (117° 0′) east of Greenwich, the latter point being on the boundary defined by the Treaty
between the United States of America and Spain signed at Paris, December 10, 1898.

ARTICLE II

The line described above has been indicated on Charts Nos. 4707 and 4720, published by the
United States Coast and Geodetic Survey, corrected to July 24, 1929, portions of both charts so
marked being attached to this treaty and made a part thereof. It is agreed that if more accurate
surveying and mapping of North Borneo, the Philippine Islands, and intervening islands shall in
the future show that the line described above does not pass between Little Bakkungaan and Great
Bakkungaan Islands, substantially as indicated on Chart No. 4720, the boundary line shall be
understood to be defined in that area as a line passing between Little Bakkungaan and Great
Bakkungaan Islands as indicated on the chart, said portion of the line being a straight line
approximately 307° 40′ true drawn from a point on the parallel of 6° 0′ north latitude to a point on
the meridian of longitude of 117° 58′ east of Greenwich.

It is likewise agreed that if more accurate surveying and mapping shall show that the line described
above does not pass between the Mangsee Islands and Mangsee Great Reef as indicated on Chart
No. 4720, the boundary shall be understood to be defined in that area as a straight line drawn from
the intersection of the parallel of 7° 24′ 45″ north latitude and the meridian of longitude of 117°
25′ 30″ east of Greenwich, passing through Mangsee Channel as indicated on attached Chart No.
4720 to a point on the parallel of 7° 40′ north latitude.

ARTICLE III

All islands to the north and east of the said line and all islands and rocks traversed by the said line,
should there be any such, shall belong to the Philippine Archipelago and all islands to the south
and west of the said line shall belong to the State of North Borneo.

ARTICLE IV

The provisions of Article 19 of the Treaty between the United States of America, the British
Empire, France, Italy, and Japan limiting naval armament, signed at Washington on February 6,
1922, shall, so long as that Treaty remains in force, apply in respect of all islands in the Turtle and
Mangsee Groups which are or may be deemed to be comprised within the territories of the
Philippine Archipelago on the one hand and of the State of North Borneo on the other hand in
consequence of the establishment of the line fixed by the preceding articles of the present
Convention. In the event of either High Contracting Party ceding, selling, leasing or transferring
any of the islands in question to a third party provision shall be made for the continued application
to such island of the aforementioned Article 19 of the Treaty between the United States of America,
the British Empire, France, Italy and Japan limiting naval armament, signed at Washington on
February 6, 1922, provided that Treaty is still in force at the time of such cession, sale, lease or
transfer.

ARTICLE V

The present Convention shall be ratified by the President of the United States of America, by and
with the advice and consent of the Senate thereof, and by His Britannic Majesty, and shall’ come
into force on the exchange of the acts of ratification which shall take place at Washington as soon
as possible.

In witness whereof the respective Plenipotentiaries have signed the same and have affixed thereto
their respective seals.
Done in duplicate at Washington the second day of January in the year of our Lord one thousand
nine hundred and thirty.

HENRY L. STIMSON [SEAL]

ESME HOWARD [SEAL]

AND WHEREAS, the said convention has been duly ratified on both parts and the ratifications of
the two Governments were exchanged at Washington on the thirteenth day of December, one
thousand nine hundred and thirty-two;

NOW, THEREFORE, be it known that I, Herbert Hoover, President of the United States of
America, have caused the said convention to be made public, to the end that the same and every
article and clause thereof may be observed and fulfilled with good faith by the United States of
America and the citizens thereof.

IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the United
States of America to be affixed.

DONE at the city of Washington this fifteenth day of December in the year of our Lrd one thousand
nine hundred and thirty-two, and of the Independence of the United States of America the one
hundred and fifty-seventh.

HERBERT HOOVER

By the President:

HENRY L. STIMSON
Secretary of State.

Treaty of General Relations Between the Republic of the Philippines (1946)

TREATY OF GENERAL RELATIONS BETWEEN THE REPUBLIC OF THE

PHILIPPINES AND THE UNITED STATES OF AMERICA

The Republic of the Philippines and the United States of America, being animated by the desire
to cement the relations of close and long friendship existing between the two countries, and to
provide for the recognition of the independence of the republic of the Philippines as of July 4,
1946 and the relinquishment of American sovereignty over the Philippine Islands, have agreed
upon the following articles:

ARTICLE I

the United States of America agrees to withdraw, and surrender, and does withdraw and
surrender, all right of possession, supervision, jurisdiction, control or sovereignty existing and
exercised by the United States of America in and over the territory and the people of the
Philippine Islands, except the use of such bases, necessary appurtenances to such bases, and the
right incident thereto, as the United States of America, by agreement with the Republic of the
Philippines, may deem necessary to retain for the mutual protection of the Republic of the
Philippines and of the United States of America. The United states of America further agrees to
recognize, and does hereby recognize, the independence of the Republic of the Philippines as a
separate self-governing nation and to acknowledge, and does acknowledge, the authority and
control over the same of the Government instituted by the people thereof, under the constitution
of the Republic of the Philippines. chan robles virtual law library

ARTICLE II

The diplomatic representatives of each country shall enjoy in the territories of the other the
privileges and immunities derived from generally recognized international law and usage. The
consular representatives of each country, duly provided with exequator, will be permitted to
reside in the territories of the other in the places wherein consular representatives are by local
laws permitted to reside; they shall enjoy the honorary privileges and the immunities accorded to
such officers by general international usage; and they shall not be treated in a manner less
favorable than similar officers of any other foreign country. chan robles virtual law library

ARTICLE III

Pending the final establishment of the requisite Philippine foreign Service establishments abroad,
the Republic of the Philippines and the United States of America agree that at the request of the
Republic of the Philippines the United States of America will endeavor, in so far as it may be
practicable, to represent, through its Foreign Service the interests of the Republic of the
Philippines in countries where there is no Philippine representation. The two countries further
agree that any such arrangements are to be subject to termination when in the judgment of either
country such arrangements are no longer necessary. chan robles virtual law librar

ARTICLE I

The Republic of the Philippines agrees to assume, and does assume hereby assume, all the debts
and liabilities of the Philippine Islands, its provinces, cities, municipalities and instrumentalities,
which shall be valid and subsisting on the date hereof. The Republic of the Philippines will make
adequate provision for the necessary funds for the payment of interest on the principal of bonds
issued prior to May 1, 1934 under authority of an Act of Congress of the United States of
America by the Philippine Islands, or any province, city or municipality therein, and such
obligations shall be a first lien on the taxes collected in the Philippines. chan robles virtual law
library

ARTICLE

the Republic of the Philippines and the United States of America agree that cases at law
concerning the Government and people of the Philippines which, in accordance with Section 7
(6) of the Independence Act of 1934, are pending before the granting of the independence of the
Republic of the Philippines shall continue to be subject to the review of the Supreme Court of the
United States of America for such period of time after independence as be necessary to
effectuate the disposition of the cases at hand. The contracting parties also agrees that following
the disposition of such cases the Supreme Court of the United States of America will cease to
have the right of review of cases originating in the Philippine Islands. chan robles virtual law
library

ARTICLE VI

In so far as they are not covered by existing legislation, all claims of the Government of the
United States of America or its nationals against the Government of the Republic of the
Philippines and its nationals against the Government of the United States of America shall be
promptly adjusted and settled. The property rights of the Republic of the Philippines and the
United States of America shall be promptly adjusted and settled by mutual agreement, and all
existing property rights o citizens and corporations of the Republic of the Philippines in the
United States of America and the citizens and corporations of the United States of America and
the citizens and corporations of the United States of America in the Republic of the Philippines
shall be acknowledged, respected and safeguarded to the same extent as property rights of
citizens and corporations of the United States of America and of the Republic of the Philippines
respectively. Both Governments shall designate representatives who may in concert agree on
measures best calculated to effect a satisfactory and expeditious disposal of such claims as may
not be covered by existing legislation.

ARTICLE VII

The Republic of the Philippines agrees to assume all continuing obligations assumed by the
United States of America under the Treaty of Peace between the United States of America, and
Spain concluded at Paris on the 10th day of December, 1898, by which the Philippine Islands
were ceded to the United States of America, and under the Treaty between the United States of
America and Spain concluded at Washington on the 7th day of November, 1900.

ARTICLE VIII

This Treaty shall enter into force on the exchange of instruments of ratification. chan robles
virtual law library

This Treaty shall be submitted for ratification in accordance with the constitutional procedures if
the Republic of the Philippines and of the United States of America and instruments of
ratification should be exchanged and deposited at Manila. chan robles virtual law librar

Signed at Manila this fourth day of July, one thousand nine hundred forty six. chan robles virtual
law library

PROF. MERLIN M. MAGALLONA ET AL, Petitioners, -versus- HON. EDUARDO

ERMITA ET AL, Respondents.

G.R No. 187167, EN BANC, JULY 16, 2011,

CARPIO, J.
Baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives
notice to the rest of the international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based rights, namely, the exercise of
sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal,
immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non living resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77).

FACTS: In March 2009, Republic Act 9522, an act defining the archipelagic baselines of the
Philippines was enacted (Baselines Law). This law was meant to comply with the terms of the
third United Nations Convention on the Law of the Sea (UNCLOS III), ratified by the Philippines
in February 1984. Professor Merlin Magallona, et al. questioned the validity of RA 9522 as they
contend, among others, that the law decreased the national territory of the Philippines hence the
law is unconstitutional.

ISSUE:
Whether or not RA 9522 is constitutional. (YES)

RULING:
The Supreme Court emphasized that RA 9522, or UNCLOS, itself is not a means to acquire, or
lose,
territory. The treaty and the baseline law has nothing to do with the acquisition, enlargement, or
diminution of the Philippine territory. What controls when it comes to acquisition or loss of
territory is the international law principle on occupation, accretion, cession and prescription and
NOT the execution of multilateral treaties on the regulations of sea-use rights or enacting statutes
to comply with the treaty’s terms to delimit maritime zones and continental shelves.

The law did not decrease the demarcation of our territory. In fact it increased it. Under the old law
amended by RA 9522 (RA 3046), we adhered with the rectangular lines enclosing the Philippines.
The area that it covered was 440,994 square nautical miles (sq. na. mi.). But under 9522, and with
the inclusion of the exclusive economic zone, the extent of our maritime was increased to 586,210
sq. na. mi. If any, the baselines law is a notice to the international community of the scope of the
maritime space and submarine areas within which States parties exercise treaty-based rights.

Province of North Cotabato v. Government of the Republic of

the Philippines

(G.R. Nos. 183591, 183752, 183893, 183951, &

183962) (14 October 2008)

Facts:

On 8 August 2008, the Government of the Republic of the Philippines (GRP), represented by the
GRP Peace Panel and the Presidential Adviser on the Peace Process (PAPP), and the Moro
Islamic Liberation Front (MILF) were scheduled to sign the Memorandum of Agreement on the
Ancestral Domain (MOA-AD) aspect of the previous GRP-MILF Tripoli Agreement on Peace of
2001 in Kuala Lumpur, Malaysia.

The MOA-AD included, among others, a stipulation that creates the Bangsamoro Juridical Entity
(BJE), to which the GRP grants the authority and jurisdiction over the ancestral domain and
ancestral lands of the Bangsamoro—defined as the present geographic area of the ARMM
constituted by Lanao del Sur,Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City, as well
as the municipalities of Lanao del Norte which voted for inclusion in
the ARMM in the 2001 plebiscite.
The BJE is then granted the power to build, develop, and maintain its own institutions. The
MOA-AD also described the relationship of the GRP and the BJE as “associative,” characterized
by shared authority and responsibility. It further provides that its provisions requiring
“amendments to the existing legal framework” shall take effect upon signing of a
Comprehensive Compact. Before the signing, however, the Province of North Cotabatosought to
compel the respondents to disclose and furnish it with complete and official copies of the MOA-
AD, as well as to hold a public consultation thereon, invoking its right to information on matters
of public concern.

A subsequent petition sought to have the City of Zamboanga excluded from the BJE. The Court
then issued a Temporary Restraining Order (TRO) on 4 August 2008, directing the public
respondents and their agents to cease and desist from formally signing the MOA-AD.

Issues and Ruling:

1.W/N the President has the power to pursue reforms that would require new legislation and
constitutional amendments.

YES. However, the stipulation in the MOA-AD that virtually guarantees that necessary changes
shall be effected upon the legal framework of the GRP must be struck down as unconstitutional
as it is inconsistent with the limits of the President’s authority to propose constitutional
amendments. Because although the President’s power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-in-Chief, and, in the course
of conducting peace negotiations, may validly consider implementing even those policies that
require changes to the Constitution, she may not unilaterally implement them without the
intervention of Congress, or act in any way as if the assent of that body were assumed as a
certainty.

2. W/N there is a violation of the people’s right to information on matters of public concern
(1987 Constitution, Art. III, Sec. 7) under a state policy of full disclosure of all its transactions
involving public interest (1987 Constitution, Art. II, Sec. 28), including public consultation
under RA No. 7160 (Local Government Code of 1991).

YES. At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people’s right to be consulted on relevant matters relating to the peace agenda

a. EO No. 3, which enumerates the functions and responsibilities of the PAPP, is replete
with mechanics for continuing consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the PAPP to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners and
concerned sectors of society;
b. RA No. 7160 (LGC) requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in such locality, is implemented therein.
The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people, which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total environment;

c. RA No. 8371 (IPRA) provides for clear-cut procedure for the recognition and delineation
of ancestral domain, which entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural Communities/Indigenous Peoples
(ICC/IP).

3. W/N the GRP Peace Panel and the PAPP committed grave abuse of discretion amounting to
lack or excess of jurisdiction.
YES. The PAPP committed grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by EO No. 3, RA No. 7160, and RA No. 8371. The furtive
process by which the MOA-AD was designed and crafted runs contrary to and in excess of the
legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary, and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.

4. W/N the MOA-AD is constitutional.

NO. It cannot be reconciled with the present Constitution and laws. Not only its specific
provisions, but the very concept underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on its way to independence.

While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the
present legal framework will not be effective until that framework is amended, the same does not
cure its defect. The inclusion of provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is, itself, a violation of the
Memorandum of Instructions From The President addressed to the government peace panel.
Moreover, as the clause is worded, it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the GRP Peace Panel nor the
President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional Convention, or the people
themselves through the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or interference with that
process.

5.W/N the GRP can invoke executive privilege.

NO. Respondents effectively waived such defense after it unconditionally disclosed the official
copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny. Carpio-
Morales, J.

The people’s right to information on matters of public concern under Sec. 7, Art. III of the
Constitution is in splendid symmetry with the state policy of full public disclosure of all its
transactions involving public interest under Sec. 28, Art. II of the Constitution.

The right to information guarantees the right of the people to demand information, while the
policy of public disclosure recognizes the duty of officialdom to give information even if nobody
demands. The IPRA does not grant the Executive Department or any government agency the
power to delineate and recognize an ancestral domain claim by mere agreement or compromise.

An association is formed when two states of unequal power voluntarily establish durable links.
In the basic model, one state, the associate, delegates certain responsibilities to the other, the
principal, while maintaining its international status as a state. Free associations represent a
middle ground between integration and independence.

The recognized sources of international law establish that the right to self-determination of a
people is normally fulfilled through internal self-determination—a people’s pursuit of its
political, economic, social, and cultural development within the framework of an existing state.
A right to external self-determination (which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises only in the most extreme of cases and, even
then, under carefully defined circumstances. That the authority of the President to conduct peace
negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean that
she has no such authority.

The President has authority, as stated in her oath of office, only to preserve and defend the
Constitution. Such presidential power does not, however, extend to allowing her to change the
Constitution, but simply to recommend proposed amendments or revision. As long as she limits
herself to recommending these changes and submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need not be construed as an
unconstitutional act.

Public statements of a state representative may be construed as a unilateral declaration only when
the following conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and that not to
give legal effect to those statements would be detrimental to the security of international
intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

SAGUISAG V. OCHOA

FACTS:

EDCA or Enhanced Defense Cooperation Agreement is an agreement between the Philippines and
America wherein it authorizes the U.S. military forces to have access to and conduct activities
within certain "Agreed Locations" in the country. After eight rounds of negotiations for two years,
the Secretary of National Defense and the U.S. Ambassador to the Philippines signed the
agreement on 28 April 2014. President Benigno S. Aquino III ratified EDCA on 6 June 2014. It
was not transmitted to the Senate on the executive's understanding that to do so was no longer
necessary. Senators file Senate Resolution No. (SR) 105.91. The resolution expresses the "strong
sense" of the Senators that for EDCA to become valid and effective, it must first be transmitted to
the Senate for deliberation and concurrence

ISSUE: Whether the President may enter into an executive agreement on foreign military bases,
troops, or facilities.

RULING:

The manner of the President's execution of the law, even if not expressly granted by the law, is
justified by necessity and limited only by law, since the President must "take necessary and proper
steps to carry into execution the law”. It is the President's prerogative to do whatever is legal and
necessary for Philippine defense interests (commander-in-chief powers). EDCA is considered an
executive agreement, therefore may be bound through the President without the need of senatorial
votes for its execution. The right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long usage

On Claim to Spratlys
August 5, 1963

Joint Statement Between the Republic of the Philippines,

the Republic of Indonesia and the Federation of Malaysia*
Signed at Manila, August 5, 1963

The President of the Republic of Indonesia, the President of the Philippines, and the Prime Minister
of the Federation of Malaya met at a Summit Conference in Manila from July 30 to August 5,
1963.

1. Moved by a sincere desire to solve their common problems in an atmosphere of fraternal

understanding, they considered, approved and accepted the Report and Recommendations of the
Foreign Ministers of the three countries adopted in Manila on June 11, 1963 (hereafter to be known
as the Manila Accord).

2. In order to provide guiding principles for the implementation of the Manila Accord the Heads
of Government have issued a declaration known as the Manila Declaration, embodying the
common aspirations and objectives of the peoples and governments of the three countries.

3. As a result of the consultations amongst the three Heads of Government in accordance with the
principles enunciated in the Manila Declaration, they have resolved various current problems of
common concern.

4. Pursuant to paragraphs 10 and 11 of the Manila Accord the United Nations Secretary-General
or his representatives should ascertain prior to the establishment of the Federation of Malaysia the
wishes of the people of Sabah (North Borneo) and Sarawak within the context of General
Assembly Resolution 1541 (XV), Principle 9 of the Annex, by a fresh approach, which in the
opinion of the Secretary-General is within the requirements embodied in Principle 9, taking into
consideration:

(i) the recent elections in Sabah (North Borneo) and Sarawak but nevertheless further examining,
verifying and satisfying himself as to whether

(a) Malaysia was a major issue, if not the main issue;

(b) electoral registers were properly compiled;
(c) elections were free and there was no coercion; and
(d) votes were properly polled and properly counted; and

(ii) the wishes of those who, being qualified to vote, would have exercised their right of self-
determination in the recent elections had it not been for their detention for political activities,
imprisonment for political offenses or absence from Sabah (North Borneo) or Sarawak.

5. The Secretary-General will be requested to send teams to carry out the task set out in paragraph
4.

6. The Federation of Malaya, having undertaken to consult the British Government and the
Governments of Sabah (North Borneo) and Sarawak under paragraph 11 of the Manila Accord on
behalf of the three Heads of Government, further undertake to request them to cooperate with the
Secretary-General and to extend to him the necessary facilities so as to enable him to carry out his
task as set out in paragraph 4.

7. In the interest of the countries concerned, the three Heads of Government deems it desirable to
send observers to witness the carrying out of the task to be undertaken by the working teams, and
the Federation of Malaya will use its best endeavors to obtain the cooperation of the British
Government and the Governments of Sabah (North Borneo) and Sarawak in furtherance of this
purpose.

8. In accordance with paragraph 12 of the Manila Accord, the three Heads of Government decided
to request the British Government to agree to seek a just and expeditious solution to the dispute
between the British Government and the Philippine Government concerning Sabah (North Borneo)
by means of negotiation, conciliation and arbitration, judicial settlement, or other peaceful means
of the parties’ own choice in conformity with the Charter of the United Nations. The three Heads
of Government take cognizance of the position regarding the Philippine claim to Sabah (North
Borneo) after the establishment of the Federation of Malaysia as provided under paragraph 12 of
the Manila Accord, that is, that the inclusion of Sabah (North Borneo) in the Federation of
Malaysia does not prejudice either the claim or any right thereunder.

9. Pursuant to paragraphs 6, 7, 8 and 9 of the Manila Accord and the Fifth Principle of the Manila
Declaration, that is, that initial steps should be taken towards the establishment of Maphilindo by
holding frequent and regular consultations at all levels to be known as Mushawarah Maphilindo,
it is agreed that each country shall set up a National Secretariat for Maphilindo affairs and as a
first step the respective National Secretariats will consult together with a view to coordinating and
cooperating with each other in the study on the setting up of the necessary machinery for
Maphilindo.

10. The three Heads of Government emphasized that the responsibility for the preservation of the
national independence of the three countries and of the peace and security in their region lies
primarily in the hands of the governments and the peoples of the countries concerned, and that the
three governments undertake to have close consultations (mushawarah) among themselves on
these matters.

11. The three Heads of Government further agreed that foreign bases—temporary in nature—
should not be allowed to be used directly or indirectly to subvert the national independence of any
of the three countries. In accordance with the principle enunciated in the Bandung Declaration, the
three countries will abstain from the use of arrangements of collective defence to serve the
particular interests of any of the big powers.

12. President Soekarno and Prime Minister Abdul Rahman express their deep appreciation for the
initiative taken by President Macapagal in calling the Summit Conference which, in addition to
resolving their differences concerning the proposed Federation of Malaysia, resulted in paving the
way for the establishment of Maphilindo. The three Heads of Government conclude this
Conference, which has greatly strengthened the fraternal ties which bind their three countries and
extended the scope of their cooperation and understanding, with renewed confidence that their
governments and peoples will together make a significant contribution to the attainment of just
and enduring peace, stability and prosperity in the region.

Manila, August 5, 1963

Onn Claim to Sabah

Manila Accord Between the Philippines, the Federation of Malaya, and Indonesia, 31 July
1963
The Governments of the Federation of Malaya, the Republic of Indonesia and the
Republic of the Philippines, prompted by their keen and common desire to have a general
exchange of views on current problems concerning stability, security, economic development
and social progress of the three countries and of the region and upon the initiative of President
Diosdado Macapagal, agreed that a Conference of Ministers of the three countries be held in
Manila on 7th June 1963 for the purpose of achieving common understanding and close fraternal
cooperation among themselves. The Ministers were of one mind that the three countries share a
primary responsibility for the maintenance of the stability and security of the area from
subversion in any form or manifestation in order to preserve their respective national identities,
and to ensure the peaceful development of their respective countries and of their region, in
accordance with the ideals and aspirations of their peoples.
Recognizing that it is in the common interest of their countries to maintain fraternal
relations and to strengthen cooperation among their peoples who are bound together by ties of
race and culture, the three Ministers agreed to intensify the joint and individual efforts of their
countries to secure lasting peace, progress and prosperity for themselves and for their neighbors.
In this context, the three Ministers supported President Macapagal's plan envisaging the grouping
of the three nations of Malay origin working together in closest harmony but without
surrendering any portion of their sovereignty. This calls for the establishment of the necessary
common organs. The three Ministers agreed to take the initial steps towards this ultimate aim by
establishing machinery for frequent and regular consultations. The details of such machinery will
be further denned. This machinery will enable the three governments to hold regular
consultations at all levels to deal with matters of mutual interest and concern consistent with the
national, regional and international responsibilities or obligations of each country without
prejudice to its sovereignty and independence.
In particular, considering the close historical ties between the peoples of the Philippines
and North Borneo as well as their geographical propinquity, the Ministers agreed that in the
event of North Borneo joining the proposed Federation of Malaysia the Government of the latter
and the Government of the Philippines should maintain and promote the harmony and the
friendly relations subsisting in their region to ensure the security and stability of the area

MANILA DECLARATION BY THE PHILIPPINES, THE FEDERATION OF MALAYA

AND INDONESIA
Signed at Manila, August 3, 1963

The President of the Republic of Indonesia, the President of the Philippines and the Prime Minister
of the Federation of Malaya, assembled in a Summit Conference in Manila from July 30 to August
5, 1963, following the meeting of their Foreign Ministers held in Manila from June 7 to 11, 1963;

Conscious of the historic significance of their coming together for the first time as leaders of
sovereign States that have emerged after long struggles from colonial status to independence;

Desiring to achieve better understanding and closer cooperation in their endeavour to chart their
common future;

Inspired also by the spirit of Asian-African solidarity forged in the Bandung Conference of 1955;
Convinced that their countries, which are bound together by close historical ties of race and culture,
share a primary responsibility for the maintenance of the stability and security of the area from
subversion in any form or manifestation in order to preserve their respective national identities and
to ensure the peaceful development of their respective countries and their region in accordance
with the ideals and aspirations of their peoples; and

Determined to intensify the joint and individual efforts of their countries to secure lasting peace,
progress and prosperity for themselves and their neighbors in a world dedicated to freedom and
justice;
Do hereby declare:

First, that they reaffirm their adherence to the principle of equal rights and self-determination of
peoples as enunciated in the United Nations Charter and the Bandung Declaration;

Second, that they are determined, in the common interest of their countries, to maintain fraternal
relations, to strengthen cooperation among their peoples in the economic, social and cultural fields
in order to promote economic progress and social well-being in the region, and to put an end to
the exploitation of man by man and of one nation by another;

Third, that the three nations shall combine their efforts in the common struggle against colonialism
and imperialism in all their forms and manifestations and for the eradication of the vestiges thereof
in the region in particular and the world in general;

Fourth, that the three nations, as new emerging forces in the region, shall cooperate in building a
new and better world based on national freedom, social justice and lasting peace; and

Fifth, that in the context of the joint endeavours of the three nations to achieve the foregoing
objectives, they have agreed to take initial steps towards the establishment of Mapilindo by holding
frequent and regular consultations at all levels to be known as Mushawarah Mapilindo.