Disputes in

West
Philippine
Sea
Reporters: Kenneth Bernard Beltran
Donnabelle Gruspe Medina
Introduction

In response, and because of its significantly weaker military capabilities, the Philippines resorted to
international law—the great equalizer of nations. In 2013, it filed a case against China at
the International Tribunal for the Law of the Sea (ITLOS) concerning maritime questions in the
West Philippine Sea.
Surprisingly, a lot of countries supported the Philippines in its case against China. The U.S. and its allies
in the European Union such as Germany, France, and the U.K. expressed their support for the decision
to take the matter to court. Likewise, Vietnam, Japan, and Australia supported the move, emphasizing
that the rule of law should prevail over acts of war in resolving disputes.
Finally, in 2016, the Permanent Court of Arbitration handed out a landmark victory for the Philippines
and declared China’s nine-dash lines and historical claims on the entire South China Sea illegal. It also
declared key features in the West Philippine Sea as falling within the Philippines’ maritime zone.
West Philippine Sea
West Philippine Sea is the official designation by the Philippine government of eastern parts of the
South China Sea which are included in the Philippines' exclusive economic zone. The term is also
sometimes incorrectly used to refer to the South China Sea as a whole.

Where is the West Philippine Sea exactly located?

The area is located 124 nautical miles west of Zambales and is within the Republic's 200 nautical-mile
Exclusive Economic Zone and the Philippine Continental Shelf.
 Countries are involved in the West Philippine Sea
In the first eight months of 2011, tensions rose in relation to long-standing territorial
disputes involving the Republic, other Southeast Asian nations (including Vietnam,
Malaysia and Brunei) and China over certain islands in the West Philippine Sea, also
known as the Sout.h China Sea

What is the importance of West Philippine Sea?

How rich is the West Philippine Sea in terms of Natural Resources? The Philippine Sea
is known as a hotspot and a center of marine biodiversity. The South China Sea,
including the West Philippine Sea, accounts for 12% of the world's annual fish catch,
worth $21 billion.
An exclusive economic zone (EEZ), as prescribed by the 1982 
United Nations Convention on the Law of the Sea, is an area of the sea in which a sovereign state has
special rights regarding the exploration and use of marine resources, including energy production from
water and wind.[1] It stretches from the baseline out to 200 nautical miles (nmi) from the coast of the state in
question. It is also referred to as a maritime continental margin and, in colloquial usage, may include the 
continental shelf. The term does not include either the territorial sea or the continental shelf beyond the 200
nautical mile limit. The difference between the territorial sea and the exclusive economic zone is that the
first confers full sovereignty over the waters, whereas the second is merely a "sovereign right" which refers
to the coastal state's rights below the surface of the sea. The surface waters, as can be seen in the map, are 
international waters.
Electronic Chart System (ECS) is a new type of vessel navigation system and aid in decision making
system. It can not only continuously give out the position of the vessel but also provide various types of
information relating to navigation to effectively prevent all kinds of hazards.
Maritimes Zones Under UNCLOS
What is the dispute in the West Philippine Sea?
China claims “indisputable sovereignty” over all the waters, islands, reefs,
rocks, seabed, minerals, and living and non-living resources falling within
its 9-dashed line claim in the South China Sea. The 9-dashed line area
comprises almost 90% of the total area of the South China Sea. China’s 9-
dashed line claim encroaches on 80% of the Philippines’ 200-nm exclusive
economic zone (EEZ) and 100% of its 150-nm extended continental self
(ECS) facing the South China Sea – what the Philippines calls the West
Philippines Sea. China’s 9-dashed line claim has similar effects on the EEZs
and ECSs of Vietnam, Malaysia, Brunei and Indonesia facing the South
China Sea. The countries most adversely affected by China’s 9-dashed line
claim, in terms of the size of the area encroached by the 9-dashed line
claim, are the Philippines, Vietnam, Malaysia, Brunei and Indonesia, in that
order.
Is there an international law that governs the resolution of the West
Philippine Sea dispute?
The 1982 United Nations Convention on the Law of the Sea, or UNCLOS,
which entered into force in 1994, governs the conflicting maritime claims in
the South China Sea. All the claimant states in the South China Sea dispute,
including the Philippines and China, have ratified UNCLOS. UNCLOS is the
Constitution for the world’s oceans and seas. UNCLOS codified the then
existing customary international law of the sea, created novel entitlements in
favor of coastal and landlocked states, and adopted a compulsory dispute
settlement mechanism to insure that there is a final authoritative body to
interpret and apply its provisions.
UNCLOS has been ratified by 165 states, comprising an overwhelming majority
of the members of the United Nations. For this reason, even the novel maritime
entitlements under UNCLOS in favor of coastal and land-locked states, which
maritime entitlements have been consistently affirmed by international
tribunals since 1994, now form part of customary international law. Even non-
signatory states, as well as signatory states that later withdraw from UNCLOS,
are bound by these maritime entitlements.

UNCLOS governs only maritime entitlements, maritime space and maritime

disputes. The maritime entitlements of states – the territorial sea, EEZ and ECS
and their resources – emanate and are drawn only from baselines on
continental land or islands. UNCLOS provides for a compulsory dispute
settlement mechanism, subject to certain types of disputes that states are
allowed to exclude from compulsory arbitration. All states that ratified UNCLOS
bound themselves in advance to this compulsory dispute settlement
mechanism. The Philippines and China, having ratified UNCLOS, are bound by
this compulsory dispute settlement mechanism.
UNCLOS does not govern territorial sovereignty disputes over land or land
features in the oceans and seas. Territorial sovereignty disputes over land or land
features – that is, islands, reefs and rocks above water at high tide – are governed
by the rules and principles of general international law. An international tribunal
can acquire jurisdiction over territorial sovereignty disputes only with the consent
of the states that are parties to the particular dispute, in the absence of a treaty
binding them in advance to the jurisdiction of such tribunal. There is no such
treaty between the Philippines and China.

In short, any maritime dispute between the Philippines and China is subject to
compulsory arbitration under UNCLOS, except for the disputes that China has
excluded from compulsory arbitration in accordance with UNCLOS. In contrast, the
territorial sovereignty dispute between the Philippines and China over land and
land features is not subject to compulsory arbitration.
What is the right or entitlement of the Philippines under international law
that is being violated by China?
Under UNCLOS, every coastal state is entitled as a matter of international law
to a 200-nm EEZ, plus an additional 150-nm ECS where applicable, drawn from
baselines on continental land or islands. In lieu of this additional 150-nm ECS, a
coastal state may adopt an ECS of up to 100-nm seaward from the 2,500 meter
isobath. This legal maritime entitlement is one of the most important reasons
why developing coastal states approved UNCLOS. Without this important legal
maritime entitlement there might have been no UNCLOS. In case of
overlapping EEZs or ECSs, the opposing or adjacent coastal states shall
negotiate in good faith an equitable maritime boundary.
Also, land-locked states joined UNCLOS for two reasons: first, the area of the
sea beyond the EEZ of a coastal state, called the high seas, is open to fishing
for all states, whether coastal or land-locked; and second, the seabed and its
minerals beyond the ECS of a coastal state is declared the common heritage of
mankind – belonging to all states, whether coastal or land-locked.
China’s 9-dashed line claim negates, and thus violates, the Philippines’ legal
entitlement under UNCLOS to an EEZ and ECS. China’s 9-dashed line claim
also negates, and thus violates, the right of all states on this planet, including
the Philippines, to fish in the high seas or the area beyond the EEZ of a coastal
state. China’s 9-dashed line claim furthermore negates, and thus violates, the
right of all states on this planet, including the Philippines, to the seabed and
its mineral resources beyond the ECS of a coastal state. Finally, China’s claim
of “indisputable sovereignty” to areas of the South China Sea beyond the EEZs
of coastal states violates the prohibition under UNCLOS against states
subjecting the high seas to their sovereignty.
What is the basis of China’s 9-dashed line claim?
China anchors its 9-dashed line claim on so-called “historical rights.” However,
China admits that its 9-dashed line claim was first included in an official
Chinese map only in 1947 during the Kuomintang Government. In 1998, China
enacted its Exclusive Economic Zone and Continental Shelf Law to affirm its
sovereign rights and jurisdiction over its EEZ and ECS under UNCLOS. A
provision in this 1998 law states, “this Act shall not affect the historical rights of
the People’s Republic of China.” This 1998 law is the first official reference in a
Chinese law to China’s “historical rights” to maritime areas outside its EEZ and
ECS. However, the rights of a state under international law cannot be enlarged
by its domestic legislation, but only by customary international law or by a
convention like UNCLOS.
China’s 9-dashed line claim was originally represented by 11 dashes in the 1947 Chinese map,
then reduced unilaterally in 1950 to 9 dashes without explanation after the Communists ousted
the Kuomintang from the mainland. In January this year China released a new official map adding
a 10th dash on the eastern side of Taiwan. China’s claim was ambiguous from the start as China
failed to explain its scope until January this year. Moreover, until now China has never revealed
the exact coordinates of its 9 or 10-dashed line claim, and neither has China explained the basis
under international law for its claim.

China formally announced to the international community its claim only in 2009 when it
submitted to the United Nations a map depicting its 9-dashed line claim. This map, showing no
coordinates of the 9 dashes, was appended to a note verbale China lodged to protest Vietnam
and Malaysia’s joint submission of their ECSs. With this map, China claimed “indisputable
sovereignty” over the islands and “adjacent waters” within the enclosed area, as well as sovereign
right and jurisdiction over the “relevant waters,” seabed and subsoil within the enclosed area.
China did not explain the meaning of the words “adjacent waters” and “relevant waters,” which are
not used in UNCLOS. China thus failed to clarify the ambiguity of its 9-dashed line claim. China’s
submission of its 9-dashed line claim to the United Nations was, of course, promptly protested by
other claimant states.
China has always been ambiguous about the scope of its 9-dashed line claim –
whether it is claiming only the islands within the 9-dashed line area, or
whether it is also claiming all the waters and resources within the 9-dashed
line area beyond the applicable maritime zones. Even Chinese scholars on the
law of the sea are divided as to whether the 9-dashed line claim includes all
the waters within the area, comprising almost 90% of the South China Sea.
China’s incumbent judge in the International Tribunal for the Law of the Sea,
Zhiguo Gao, wrote in 1994 that the 9 dashes merely identify the islands
owned by China within the enclosed area and do not represent a claim to all
the waters and resources within the enclosed area.
Still, China has not explained the basis under international law of its
“historical rights” to the 9-dashed line claim. China has not released an official
paper or document explaining such “historical rights,” and the justification for
such “historical rights” under international law. China has refused to defend
its 9-dashed line claim before an international tribunal on the law of the sea.
However, on its face alone the 9-dashed line claim has absolutely no basis
under international law.
First, UNCLOS extinguished all historical rights of other states within the 200-
nm EEZ of the adjacent coastal state. That is why this 200-nm zone is called
“exclusive” – no state other than the adjacent coastal state can exploit
economically its resources. Fishing rights that other states historically enjoyed
within the EEZ of the adjacent coastal state automatically terminated upon
the effectivity of UNCLOS. Moreover, UNCLOS prohibits states from making
any reservation or exception to UNCLOS unless expressly allowed by
UNCLOS. Any reservation of claims to “historical rights” over the EEZ or ECS of
another coastal state is prohibited because UNCLOS does not expressly allow
a state to claim “historical rights” to the EEZ or ECS of another state. In short,
UNCLOS does not recognize “historical rights” as basis for claiming the EEZs
or ECSs of other states.
China’s 1992 Law on Territorial Sea and Contiguous Zone declares a 12-nm
territorial sea measured from its baselines. Since China’s own law limits its
territorial sea to 12-nm from its baselines, China cannot claim the waters within
the 9-dashed line map as its territorial sea. The waters within the 9-dashed line
claim cannot also be considered internal waters of any state because they are in
the open sea bordering seven coastal states. The South China Sea falls under the
UNCLOS definition of a semi-enclosed sea because it consists “entirely or
primarily of the territorial seas and EEZs of two or more States.”

Since the time that Grotius’ idea of the free sea became part of international law,
no nation could appropriate or claim “indisputable sovereignty” to any part of the
oceans and seas beyond its territorial sea or beyond what other states recognize
as its internal waters. This is reflected in UNCLOS, which only grants a coastal
state specified sovereign rights and jurisdiction over its EEZ and ECS, and
expressly prohibits any coastal state from subjecting the high seas to its
sovereignty.
Thus, the waters enclosed by China’s 9-dashed line claim are neither internal
waters nor territorial sea of China. The waters cannot also form part of China’s
EEZ or ECS because they are not drawn from China’s baselines and are beyond
the limits of China’s EEZ and ECS as drawn from China’s baselines. In short,
China’s claim to the waters enclosed by the 9-dashed line claim does not fall
under any of the maritime zones recognized by international law or UNCLOS –
namely, internal waters, territorial sea, EEZ, and ECS – that could be claimed by
a coastal state. Only China seems to know under what maritime zone the 9-
dashed line waters fall, but China is not telling the world except to claim
“indisputable sovereignty” over such waters by “historical rights.”
What is China’s offer to jointly develop the disputed areas?
China has been dangling to the Philippines and other claimant states its offer to
jointly develop the disputed areas while shelving the sovereignty issues. This joint
development offer originated from Deng Xiaoping’s three-part guideline:
sovereignty belongs to China, shelve the disputes, and pursue joint development.
There are at least three problems to this offer.
First, China wants to jointly develop the EEZ of the Philippines but refuses to
jointly develop China’s own EEZ. In effect, China is saying to the Philippines, what
is exclusively your economic zone belongs to both of us, but what is exclusively
our economic zone is ours alone, and if you do not agree, our warships will be
there to prevent you from developing your exclusive economic zone.
Second, as explained by Chinese officials and scholars, China’s offer of joint
development is subject to the precondition that participating coastal states
must first expressly recognize China’s “indisputable sovereignty” under its 9-
dashed line claim. This precondition effectively means that once a state
agrees to joint development, it must not only vacate any island it possesses in
the Spratlys and turn over the same to China, it must also renounce any
maritime claim within the 9-dashed line area. This precondition demanded by
China is obviously inconsistent with its offer to shelve the sovereignty issue.
Third, if the Philippines agrees to China’s joint development offer, the
Philippines will in effect give up its exclusive “sovereign right and jurisdiction” to
exploit all the living and non-living resources in its own EEZ. The Philippines will
also give up its exclusive right to exploit the mineral resources in its own ECS.
The bottom line is that China’s joint development offer will negate the maritime
entitlements of the Philippines under UNCLOS. This is constitutionally
impermissible because our 1987 Constitution mandates, “The State shall
protect the nation’s marine wealth in its archipelagic waters, territorial sea and
exclusive economic zone, and reserve its use and enjoyment exclusively to
Filipino citizens.”
Why did the Philippines file an arbitration case against China?
Following the tense standoff in April and May 2012 between Chinese and
Philippines vessels in Scarborough Shoal, the Philippines withdrew in June 2012
its vessels from Scarborough Shoal on the understanding of a mutual
withdrawal of vessels by both China and the Philippines. The Chinese, however,
reneged on their commitment and refused to withdraw their vessels. Then in
November 2012, China informed the Philippines that the Chinese surveillance
vessels would remain permanently stationed in Scarborough Shoal. China was
now in permanent occupation of Scarborough Shoal.
Scarborough Shoal is a submerged reef except for six small rocks that protrude
not more than three meters above water at high tide. The width of the largest
rock above water at high tide is only a few meters. The Philippines built a
lighthouse on one of the rocks in 1965, and another lighthouse in 1991. From
the 1960s to the 1980s Scarborough Shoal was a bombing range of American
and Philippine Air force planes practicing bombing runs. Prior to such practice
bombings, American and Philippine authorities would give worldwide notices to
mariners to avoid Scarborough Shoal. No protest was ever heard from China.
Scarborough Shoal appeared in the first map of the Philippines issued under
the American regime in 1899. Earlier during the Spanish regime,
Scarborough Shoal, at that time called Panacot, appeared in several Spanish
maps of the Philippines starting at least in the 1734 Murillo map. While
Scarborough Shoal was outside the lines drawn in the 1898 Treaty of Paris,
Spain and the United States two years later entered into the 1900 Treaty of
Washington clarifying that islands to which Spain had “title or claim of title”
were also ceded to the United States even though outside the lines drawn in
the Treaty of Paris. Thus, Spain ceded Scarborough Shoal to the United
States under the 1900 Treaty of Washington. Under the 1935 Constitution,
the territories ceded by Spain to the United States under the Treaty of Paris
and the Treaty of Washington form part of the Philippine national territory.
Under the 2009 amendment to the Philippine Baselines Law, Scarborough
Shoal is declared as a Regime of Islands for purposes of determining its
baselines.
The Philippines had five options in responding to the Chinese occupation
of Scarborough Shoal.
First was to send naval vessels and marines to retake Scarborough Shoal.
This was not feasible because of the superior Chinese naval forces. Second
was to file a diplomatic protest with China. This was useless because China
would simply ignore the protest – as it ignored the protest of the Philippines
after China seized Mischief Reef 17 years earlier in 1995. Third was to ask
Asean to lobby China to withdraw from Scarborough Shoal. This was not
realistic because some Asean countries are hesitant to offend China.
Besides, Asean countries do not take sides on territorial disputes. Fourth
was to take the matter to the United Nations Security Council. This was also
futile since China has a veto power in the Security Council. The fifth and
only viable option was to bring the matter to an international tribunal for
arbitration, where the playing field would be level and military power would
not count, but only the rule of law would govern. Incidentally, the
Philippines could also not invoke the Phil-U.S. Mutual Defense Treaty since
the U.S. has made it clear that the islands, reefs and rocks in the South
China Sea are outside the scope of the treaty.
The Chinese occupation of Scarborough Shoal is an invasion of Philippine
territory, giving rise to a territorial sovereignty dispute. However, the
Philippines could not bring China to compulsory arbitration on a territorial
sovereignty dispute without China’s consent. That is why the Philippines
decided to do the next best thing – bring China to compulsory arbitration on
the maritime aspect of China’s 9-dashed line claim. If China’s 9-dashed line
claim is invalidated, then China will lose its excessive claim to the waters of
the South China Sea. More significantly, China’s basis for claiming territorial
sovereignty over the islands within its 9-dashed line claim will weaken
considerably since the 9-dashed line claim is central to China’s historical claim
to territorial sovereignty over the islands within the enclosed area.
Is China’s consent required for the compulsory arbitration?
When a state ratifies UNCLOS, the state consents in advance to be bound by the
compulsory dispute settlement mechanism under UNCLOS on “any dispute
concerning the interpretation or application” of the provisions of UNCLOS.
However, a state is allowed to opt out of compulsory arbitration for certain
matters, like disputes on maritime boundary delimitation. In 1996, ten years
after ratifying UNCLOS, China opted out of compulsory arbitration for certain
types of disputes, including any dispute on maritime boundary delimitation. A
state remains bound to compulsory arbitration with respect to the interpretation
or application of UNCLOS on disputes that the state has not excluded, or cannot
exclude, from compulsory arbitration.
Thus, when an actual dispute arises involving the interpretation or application of
UNCLOS, a signatory state is already deemed to have given its consent to
compulsory arbitration, unless the dispute is one that is properly excluded from
compulsory arbitration under UNCLOS.
The Philippines’ arbitration case against China involves the interpretation or
application of UNCLOS on three main issues. The first issue is whether
China’s 9-dashed line claim can negate the grant under UNCLOS of an EEZ to
the Philippines. This issue does not involve any maritime boundary
delimitation because there are no overlapping EEZs between China and the
Philippines, certainly not in the island of Luzon facing the West Philippine
Sea. Scarborough Shoal, whatever state may have sovereignty over it, does
not generate an EEZ because only small rocks are found there. Admittedly,
those rocks are not islands capable of sustaining human habitation or
economic life of their own, which is the condition for an island to have an
EEZ.
What are the ramifications of this case on international law?
China’s 9-dashed line claim simply cannot co-exist with UNCLOS. Upholding one
means killing the other. If China’s 9-dashed line claim is upheld or allowed to
stand, UNCLOS will cease to be the law of the sea in the South China Sea. China
will appropriate for itself not only the EEZs and ECSs of other coastal states but
also the high seas and all the living and non-living resources found there. This will
be the beginning of the end for UNCLOS. Other naval powers will likewise claim
other oceans and seas, taking away the EEZs and ECSs of weak or defenseless
coastal states. The oceans and seas of the planet will be governed by the rule of
the naval canon.
Indeed, the maritime dispute between the Philippines and China is an acid test to
the very survival of UNCLOS – whether the Rule of Law will govern the oceans
and seas of our planet, or whether the rule of the naval cannon will prevail, as it
did in the time of Grotius. Legal scholars on the law of the sea all over the world
are keenly watching the outcome of the Philippines’ arbitration case.
What are the ramifications of this case on the Philippines?
The Philippines has wisely chosen to bring its maritime dispute with China to a forum where
warships, fighter planes and missiles do not count, eliminating the military advantage of China
and insuring that the outcome of the dispute will be decided only in accordance with the Rule of
Law. It was a wise decision, but one borne out of necessity because it was actually the only viable
option open to the Philippines.
We have to admit that as a nation we have neglected to maintain a credible self-defense force,
particularly in our naval assets despite our being an archipelagic country with extensive
coastlines and a vast EEZ. We are paying dearly for this neglect, by losing Mischief Reef in 1995,
Scarborough Shoal in 2012, and most likely Ayungin Shoal in the near future. To remain a
sovereign and independent nation, to maintain our territorial integrity, to avoid further
humiliation, and to maintain our self-respect as a nation, we must build and maintain a credible
self-defense force. There is simply no alternative to this. No nation can remain sovereign,
independent and free for long without maintaining a credible self-defense force, even if
international law and world opinion are on its side.
As a nation we must also understand that the maritime and territorial dispute with China in the
West Philippine Sea is an inter-generational struggle to maintain our sovereignty and territorial
integrity. Our generation may win the legal battle in the UNCLOS arbitration case, but for sure
China will not simply abandon its massive structure in Mischief Reef or withdraw its surveillance
vessels in Scarborough Shoal.
Some Structures Build BY China In West Philippine Sea