Sea was capable of generating an Exclusive Economic Zone (“EEZ”), which meant that they fell within the EEZ of the Philippines instead.
In reaching this conclusion, the Tribunal first considered whether some of the reefs claimed by China were above water at high tide. Under Articles 13 and 121 of the Convention, features above water at high tide generate an entitlement to at least a 12-nautical mile territorial sea, while features that are submerged at high tide do not generate such entitlement. The Tribunal noted that many of the features that China claims generate entitlement have been subject to human modification, while the Convention classifies features only based on their natural condition. Consequentially, the Tribunal assessed the status of the features on the basis of archival materials and historical hydrographic surveys. The Tribunal concluded that Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North) and McKennan Reef are features not submerged at high tide, therefore generate an entitlement to at least a 12-nautical mile territorial sea.
The Tribunal then went on to analyse whether these features found to be above water at high tide could be classified as islands. Under Article 121 of the Convention, islands generate an entitlement to an EEZ and to a Continental Shelf, while rocks that cannot sustain human habitation or economic life of their own do not generate such entitlement. The Tribunal found that the above-mentioned features, despite China’s constructions on a number of them, cannot sustain human habitation or economic life. Consequentially, the Tribunal concluded that these features were rocks and not islands.
The Tribunal also considered whether any of the Spratly Islands that China claims or the Spratly Islands as a whole could generate extended maritime zones. The Tribunal found that the Spratly Islands had been used only by small groups of transient fishermen and mining enterprises and therefore could not be said to sustain human habitation or economic life. They therefore do not generate entitlement to an EEZ. The Tribunal also held that, under the Convention, the Spratly Islands do not generate maritime zones collectively as a unit.
The lawfulness of Chinese actions in the South China Sea
Second, having found that certain areas are within the EEZ of the Philippines, the Tribunal found that China had violated the Philippines' sovereign rights within those areas in a number of ways. Specifically, it found that China had: (1) interfered with Philippine fishing and petroleum exploration at Reed Bank; (2) constructed artificial islands at Mischief Reef without the permission of the Philippines; and (3) failed to prevent Chinese fishermen from fishing within the Philippines’ EEZ at Mischief Reef and Second Thomas Shoal. The Tribunal also concluded that China had interfered with the Philippines’ traditional fishing rights at Scarborough Shoal and created a serious risk of collision when they obstructed Philippine vessels.
The effect of China’s actions on the marine environment
Third, the Tribunal made a first-time ruling on the Convention’s provisions on environmental protection, finding that China had breached these too. Articles 192 and 194 of the Convention oblige States to protect and preserve the marine environment and take steps to avoid polluting it. The Tribunal found that China had breached these articles by severely harming the marine environment with its large-scale land reclamation and construction of artificial islands. By not preventing Chinese fishermen from harvesting endangered species in the area, China also had failed to fulfil its due diligence obligations under the Convention.
China’s aggravation of the dispute
Fourth, the Tribunal determined that China had violated its obligation under international law not to aggravate the dispute during the pendency of the proceedings against it. The