On the status of features in the South China Sea, the Tribunal concluded that the following features include, or in their natural condition did include, rocks or sand cays that remain above water at high tide and were, accordingly, high-tide features: (a) Scarborough Shoal, (b) Cuarteron Reef, (c) Fiery Cross Reef, (d) Johnson Reef, (e) McKennan Reef, and (f) Gaven Reef (North). Also the following features are, or in their natural condition were, exposed at low tide and submerged at high tide and are, accordingly low-tide elevations: (a) Hughes Reef, (b) Gaven Reef (South), (c) Subi Reef, (d) Mischief Reef, (e) Second Thomas Shoal.

Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, Gaven Reef (North) and McKennan Reef contain, within the meaning of Article 121(1) of the Convention, naturally formed areas of land, surrounded by water, which are above water at high tide. However, under Article 121(3) of the Convention, the high-tide features at Scarborough Shoal are rocks that cannot sustain human habitation or economic life of their own and accordingly shall have no exclusive economic zone or continental shelf.

The Tribunal further concluded that Mischief Reef and Second Thomas Shoal were both low-tide elevations that generate no maritime zones of their own. The Tribunal also concluded that none of the high-tide features in the Spratly Islands were capable of sustaining human habitation or an economic life of their own within the meaning of those terms in Article 121(3). All of the high-tide features in the Spratly Islands were therefore legally rocks for purposes of Article 121(3) and did not generate entitlements to an exclusive economic zone or continental shelf. Thus there was no possible entitlement by China to any maritime zone in the area of either Mischief Reef or Second Thomas Shoal. Mischief Reef and Second Thomas Shoal were held located within 200 nautical miles of the Philippines’ coast on the island of Palawan and were located in an area that was not overlapped by the entitlements generated by any maritime feature claimed by China. Thus as between the Philippines and China, Mischief Reef and Second Thomas Shoal form part of the exclusive economic zone and continental shelf of the Philippines.

Thus no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal constituted a fully entitled island for the purposes of Article 121 of the Convention and therefore that no maritime feature claimed by China within 200 nautical miles of Mischief Reef or Second Thomas Shoal had the capacity to generate an entitlement to an exclusive economic zone or continental shelf.

On the China’s claim of ‘nine-dash line’ to support its case, the tribunal observed that it first appeared on an official Chinese map in 1948 when 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 the 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 appeared consistently in that nine-dash form in official Chinese cartography since that date. The length and precise placement of individual dashes, however, do not appear to be entirely consistent among different official depictions of the line.

Also in 2009, China sent two Notes Verbales to the UN Secretary-General in response to Malaysia and Vietnam’s Joint Submission of the preceding day to the Commission on the Limits of the Continental Shelf (CLCS) wherein China stated that it has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. The above position was consistently held by the Chinese Government, and is widely known by the international community. Appended to China’s notes was a map depicting the same ‘nine-dash line’.

The Tribunal held that on the basis of China’s conduct, China claims rights to the living and non-living resources within the ‘nine-dash line’, but (apart from the territorial sea  generated by any islands) does not consider that those waters form part of its territorial sea or internal waters.

Also as between the Philippines and China, the Convention defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed therein. The Tribunal concluded that, as between the Philippines and China, China’s claims to historic rights, or other sovereign rights or jurisdiction, with respect to the maritime areas of the South China Sea encompassed by the relevant part of the ‘nine-dash line’ were held contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under the Convention. The Tribunal concluded that the Convention superseded any historic rights or other sovereign rights or jurisdiction in excess of the limits imposed therein.

The Arbitral Tribunal had earlier issued its unanimous award on the jurisdiction issue. According to Article 288(4) of the Convention, in the event of a dispute as to whether a court or tribunal has jurisdiction, the matter has to be settled by decision of that court or tribunal. Also Article 9 of Annex VII to the Convention requires that where a Party does not appear before the Tribunal, 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 as well as in law. It held that Philippines and China were parties to the Convention and that the provisions for the settlement of disputes, including through arbitration, formed an integral part of it.  Although the Convention specifies certain limitations and exceptions to the subject matter of the disputes that may be submitted to compulsory settlement, it does not permit other reservations, and a State may not except itself generally from the Convention’s mechanism for the resolution of disputes. The Tribunal also rejected the claim of China alleging abuse of the Convention holding that mere act of unilaterally initiating arbitration in itself cannot constitute an abuse of the Convention.

China contended that the Parties’ dispute is actually about sovereignty over the islands of the South China Sea and therefore not a matter concerning the Convention. It also contended that the Parties’ dispute was actually about the delimitation of the maritime boundary between them and therefore excluded from dispute settlement by an exception set out in the Convention that States may activate by declaration.  China contended that it had already activated the exception for disputes concerning sea boundary delimitations when it made a declaration in 2006.

The Tribunal observed that though there was a dispute between the Parties regarding sovereignty over islands, but yet the matters submitted to arbitration by the Philippines did not concern sovereignty. On the second issue the Tribunal observed 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.  While a wide variety of issues are commonly considered in the course of delimiting a maritime boundary, it does not follow that a dispute over each of these issues is necessarily a dispute over boundary delimitation.  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 Convention.

The Tribunal thus held that China’s non-appearance in the proceedings did not deprive the Tribunal of jurisdiction and Philippines’ act of initiating this arbitration did not constitute an abuse of process. It also found that the 2002 China–ASEAN Declaration on Conduct of the Parties in the South China Sea, the joint statements of the Parties, the Treaty of Amity and Cooperation in Southeast Asia, and the Convention on Biological Diversity, did not preclude recourse to the compulsory dispute settlement procedures available the Convention.