There are a great many legal nuggets that can be mined from the 501 page decision released on July 12, 2016 by the Permanent Court of Arbitration (PCA) panel. However, perhaps the most far reaching aspect of the ruling was the Tribunal’s holding that no features in the Spratly Island group are “islands” within the meaning of Article 121 of UNCLOS.
The practical import is that the claims by Vietnam, Taiwan, and the Philippines to 200 nautical mile zones around the currently occupied “islands” of Itu Aba (Taiwan), Spratly (Vietnam) and Thitu/Pagasa (Philippines) are null and void. As “rocks,” these features only get a 12 nm territorial sea. Clearly influenced by the persuasive argument by the Philippines (para 421) that the dispute over the Spratly Islands would be forever “frozen” if the features were determined to be “fully entitled islands,” the panel concluded that “abstract tests” that a feature could meet the UNCLOS definition of an island are trumped by reliable evidence that a feature has the continuous capacity to support human habitation, and economic life, without outside support.
The vast majority of press reporting since the Tribunal issued its ruling has been focused on aggressive posturing by Chinese officials who decry the illegitimacy of the decision and the prospect Beijing will have to up the ante to register its dissent with the holding. Reports have intensified that China is actively considering a South China Sea Air Defense Interception Zone (ADIZ) and is a continuing to block Philippine access to the waters near Scarborough Shoals. There are also reports that China is considering the deployment of floating nuclear power plants to the South China Sea to provide power to offshore platforms. And there have been multiple press reports that the PCA was essentially bribed to reach a decision in the Philippines’ favor because the court costs were paid by the Philippine government. Finally, Chinese Premier Li Keqiang’s warning to Japanese Prime Minister Shinzo Abe that since Japan is not directly involved in the South China Sea issue it should “exercise caution in its own words and deeds, and stop hyping up and interfering” suggests that careful analysis and reflection is not the order of the day in Beijing.
China has reason to bristle that its historic arguments concerning the nine-dash line were rejected because it undercuts the narrative that Chinese leaders have told both their citizens and others in Southeast Asia: that China’s sovereignty extends to nearly all of the South China Sea as a historic entitlement. China also has good reason to have bruised feelings over the arbitral tribunal’s especially blunt description of the ecocide that China has inflicted on formerly pristine areas of the South China Sea as a result of its island building activities. China’s official acquiescence to outrageously illegal fishing practices and reef destruction by Chinese fisherman was another area which landed the PRC much criticism.
But China’s protest of the Itu Aba ruling doesn’t seem to make much sense since that aspect of the ruling favors their own interests in two different disputes which it currently has with Japan. The new legal benchmark for what constitutes an island actually serves China’s global interests.
Disputes With Japan
China would do well to recall two protracted disputes that it has with Japan concerning Okinotorishima and the Diaoyu/Senkakus. In both instances, Japan’s is asserting sovereignty over two comparatively insignificant features to gain access to vast ocean areas for fisheries and oil and gas. Japan, which claims sovereignty over the Senkakus, has yet to formerly designate a 200 nm EEZ around the islands. The practical effect of Japan’s claiming an EEZ around the Senkakus is that it results in a considerable reduction of China’s EEZ and continental shelf territory because Japan is able to leverage the Senaku islands to push their EEZ from the Ryukyu Island Chain much further west towards China’s coast.
Okinotorishima is an uninhabited atoll consisting of roughly 8,500 square meters of atoll; most of the above-water portion is three concrete structures. Its highest elevation is 1.5 meters above high tide and it is over a 1000 miles south of Tokyo; yet Japan claims an EEZ of over 400,000 sq km based on this feature. This particular feature’s status came up in connection with Japan’s submission to the Commission on the Limits of the Continental Shelf (CLCS) to obtain an extended continental shelf.
China and South Korea both contest this EEZ assertion. China expressed the reasoned view in 2009 (before the CLCS) that Okinotorishima is, at best, a high tide elevation and not entitled to a 200 nm EEZ. China argued that states “ have the obligation to ensure respect for the extent of the International Seabed Area… which is the common heritage of mankind, and not to affect the overall interests of the international community as a whole” [and that states] “shall implement the Convention in its entirety and ensure the integrity of the Convention.” China also said:
It is to be noted that the so-called Okinotorishima Island is in fact a rock as referred to in Article 121(3) of the Convention…. Article 121(3) of the Convention stipulates that, “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Available scientific data fully reveal that the rock of Okinotori, on its natural conditions, obviously cannot sustain human habitation or economic life of its own, and therefore shall have no exclusive economic zone or continental shelf. Even less shall it have the right to the extended continental shelf beyond 200 nautical miles.
The above statement was repeated again by China on August 3, 2011 in a note verbale to the UN Secretary General. This occurred after South Korea had registered a protest that establishing an EEZ around Okinotorishima was inconsistent with Article 121(3) of UNCLOS and that Japan’s activities “seriously encroached into the Area which is the Common Heritage of Mankind.” Given the criteria established in the Philippines v. China arbitration, there is absolutely no question that Okinotorishima would not be entitled to full entitlements as an island. At the very best, it is entitled to a 12 nm territorial sea and China should take the recent ruling as an invitation to further contest Japan’s claim in a legal action and win.
The tribunal ruling also has implications on the Diaoyu/Senkaku dispute. Japan has yet to establish formal claims around the Senkakus to force the issue on the status of these uninhabited islets, which do not possess any fresh water or arable land sufficient to support agriculture. But there are some key features in the tribunal’s decision that have a direct bearing on the juridical status of the Senkakus which, if determined to only be a rock versus an island, would result in a much increased EEZ and continental shelf area for the PRC.
For an island to have full entitlements under Article 121, the tribunal held that the any population on the island must rely upon “local and not imported” support and be capably of supporting general populations. This directly contrasts with small outposts that are designed to support a sovereignty claim. Fresh water, arable land, and continuous civilian inhabitation are all features that must be present before the Article 121 entitlement can be given. The tribunal (para 420) also relied upon on a line of three important precedents — the 2009 Serpent Island Case by the International Court of Justice (ICJ), the 2012 Bay of Bengal decision by the International Tribunal for the Law of the Sea (ITLOS), and the 2012 Nicaragua v. Columbia ICJ case — which together held that small remote features were “enclaved” in the EEZ projections of continental countries.
Even though the tribunal’s decision to delve into the status of Itu Aba was a surprise, the legal result was logical and predictable given the recent case law and overall equities of the various South China Sea contestants who can ill afford for the situation to remain forever in limbo. In any event, applying the detailed standards from the tribunal’s decision of what constitutes an island under Article 121 of UNCLOS leads to the inescapable conclusion that the Senkakus are not islands within the meaning of Article 121 and are not entitled to a 200 nm entitlement. Armed with this knowledge, China can and should make use of its EEZ and Continental Shelf territory up to the median line with the Ryukyu Island China and treat the Senkakus as an enclaved feature until a sovereignty resolution is made. All the better if China were to do that in collaboration with Japan as I suggested in “Fixing the Senkaku/Diaoyu Problem Once and For All.”
China Can Legally Contest Vast EEZ Claims by the U.S., France, and Other Countries
In 2012, leaders of the Chinese Communist Party declared that becoming a “maritime power” was essential to the PRC’s national goals of spreading its influence, securing access to natural resources, protecting its citizens overseas, and feeding its population. Rear Admiral Michael McDevitt of CNA also writes that China’s “strategic circumstances” have changed such that expanded maritime power is now a part of Xi Jinping’s strategic intent: his “China Dream.”
Regardless of why this is happening, the “what” is more telling: the PLAN is likely to have the largest navy in the world (including combatant vessels, underway replenishment ships, and submarines) and the second most capable “far seas” navy by 2020. China now has the largest marine law enforcement force (Coast Guard) and a merchant marine that has tripled in size in the past 10 years. And, at a time when most developed countries – especially among EU countries – are implementing “buy back” programs to limit the number of fishing vessels, China — by orders of magnitude — has the largest fishing fleet in the world, with 2,500 distant water fishing vessels and 200,000 coastal craft.
Given this incredible maritime muscle that China has to flex, it seems rather pointless for Beijing to focus its gaze on the contested resources in its backyard. Alienation of their less powerful neighbors like Vietnam and the Philippines does little to advance China’s desire to be the leading force in ASEAN and a global maritime power. Also, focusing on the dwindling fish stocks in the South China Sea under a very questionable legal guise will likely result in a continuing cycle of disputes and could put its maritime forces in the cross hairs of the U.S. Navy, who may have to act if Philippine or Japanese forces are attacked.
An unintended consequence of the Itu Aba decision is that it exposed the soft legal underbelly of some of the huge EEZ claims of a number of countries, including the United States (11.3 million sq km) and France (11.7 million sq km); mostly in the Pacific. Both countries rely on a number of very small features in the South Pacific to greatly augment their continental EEZ claims. Such U.S. features include:
- The Johnson Atoll – an uninhabited atoll of four small islets (increased by dredge and fill to 3,200 acres) 860 miles south of Hawaii, currently administered by the U.S. Air Force. It now serves as a wildlife refuge because of nuclear contamination. This atoll has abandoned runways and military buildings but never had any indigenous populations. The islands contain some low growing vegetation but there is no fresh water or reports of arable land. Yet, this feature generates an EEZ of 407,635 sq km.
- Howland and Baker Islands – two uninhabited atolls in the equatorial Pacific that consistent of coral formations on two exitinct volcanoes. The two islands have phosphorite and guano deposits. The two islets consist of 855 acres and have no fresh water or arable land and currently serve as a Marine National Monuments, managed by the U.S. Fish and Wildlife Service. These two features generate a combined EEZ of 434,921 sq km.
- Jarvis Island – an uninhabited 4.5 sq km coral island located in the South Pacific that is administered by the U.S. Fish and Wildlife Service. The island has no ports or harbors, scant vegetation, and has been infrequently used for guano mining. There is no freshwater and there is no evidence that the island has ever supported a self-sustaining population. This island generates an EEZ of 316,665 sq km.
- Palmyra Atoll and Kingman Reef – an unoccupied Northern Pacific atoll 12 sq km in size that hosts itinerant scientists and is located between American Samoa and Hawaii. The atoll mostly consists of reefs but the land features have some vegetation and coconut trees. The atoll now serves as a U.S. National Wildlife Refuge. There is no freshwater and likely no arable land. These features generate an EEZ of 352.300 sq km.
France too has a number of features that are uninhabited yet those features are used to generate very large EEZs, including:
- French Polynesia – the territory consists of 118 islands and atolls but only 67 of those features are inhabited. Many of these features are clusters associated with significant populations; however, the southernmost Austral Islands (Marotiri and Rapa Lti) are uninhabited. Yet these features significantly enhance the EEZ claims of the island group. Careful analysis would likely result in a diminution of the 4.7 million sq km EEZ based on French Polynesia.
- Clipperton Island – a 6 sq km feature 671 miles southwest of Mexico. It has been occupied by itinerant guano miners but was awarded to France following a famous arbitration in in 1931. Clipperton is currently unoccupied and consists of a ring shaped atoll that encloses a stagnant freshwater lagoon (devoid of fish). Apart from this unique lagoon, there are no other freshwater sources. Vegetation is sparse and there is no arable land. Clipperton generates an EEZ of 431,263 sq. km.
- Crozet Islands – an uninhabited cluster of features midway between Africa and Antarctica. The volcanic islands consist of 353 sq km and currently serve as a nature preserve. There are snow-capped mountains but there does not appear to be any arable land or other fresh water sources. The islands generate an EEZ of 574,558 sq km.
This analysis of these features hardly meets the exacting geomorphic and historical analysis done by the tribunal; however, based on this quick analysis over 2.5 million square kilometers of currently claimed EEZs that could be classified as high seas fisheries is potentially available to the PRC and others if the tribunal’s decision were given the broadest possible effect.
The Itu Aba Ruling and Beijing’s Relations with Taipei
A number of analysts are saying that one outcome of the decision is that it Taiwan and Beijing will be drawn together in a common cause the reverse the injustice of the ruling as it affects Itu Aba.
Taiwan’s deployment of a destroyer to the waters around Itu Aba is understandable because the Tribunal’s decision that Itu Aba was a rock versus an island was not previously identified as an issue for decision by the Tribunal. But Taiwan is legally complicit in this matter because Taipei made a bad tactical decision to have its Ministry of Foreign Affairs issue a detailed statement on the matter on March 21, 2016 which the tribunal, and the Philippines, agreed would be given due consideration. By making this very late and detached intervention, Taipei gave the Tribunal the legal green light that they needed to consider Itu Aba’s status.
Given the public positions that China has taken in the past on Okinotorishima, which argue for a strict interpretation of Article 121, China would be in a awkward position should the Itu Abu finding be reversed. Given the other beneficial aspects of the ruling in terms of creating new legal avenues to gain access to rich fishing areas in the South Pacific, it would now seem more beneficial for Taipei (another aggressive distant water fishing country) and Beijing to not dwell on the Itu Aba aspect of the decision.
Beijing would also do well to remember that the ruling also vitiates the Article 121 island claims of both Vietnam and the Philippines and paves the way for a cooperative approach to the management of the South China Sea’s fisheries (and hydrpcarbons). Beijing can play a big role in that cooperative approach since the negotiators don’t have to deal with the intractable issue of uncertain and overlapping maritime entitlements. Besides, aligning on the Itu Aba issue with Taipei and fighting joint development schemes in the Spratlys would send very confusing strategic signals to the rest of the world and could lead to further disarray within ASEAN and political misunderstandings.
It Is In China’s Best Interest to Soldier On
No responsible Western trained jurist can fathom a legal basis for China’s 2 million sq km nine-dash line claim that can coexist with UNCLOS. China’s eminent Judge Zhiguo Gao, who serves on the International Tribunal for the Law of the Sea. gave it his best shot in a 2013 Article in the American Journal of International Law, putting forth the notion that UNCLOS does not vitiate general international law principles of historic rights. But even a careful reading of Gao’s arguments left most members of the international legal community unable to find a coherent argument that would allow the nine-dash line claim to be UNCLOS compliant, since UNCLOS was expressly designed to be the comprehensive authority on maritime zones. UNCLOS was also intended to be a “package deal” which states could either accept in its entirety or reject. China accepted that deal in 1996. For that reason and the fact that the tribunal has ruled definitely that the nine-dash line is a legal nullity, China had best soldier on and use the tribunal’s decision to its own legal advantage.
China would seem to do well to take a cue from Mahatma Gandhi, who said: “I suppose leadership at one time meant muscles; but today it means getting along with people.” As much as the tribunal decision stings the leaders in Beijing, the decision provides a raison d’etre for China to begin the process of negotiating with the Philippines regarding Scarborough Shoal, Reed Bank, and Mischief Reef and, possibly, with the other Spratly Island claimants and, in doing so, display constructive leadership. More importantly, finding a way to embrace at least parts of the decision will both be a display of leadership in a Gandhian sense and also help put its maritime power aspirations on a far seas trajectory. UNCLOS is China’s ticket to the distant riches of the oceans.
Mark E. Rosen is the SVP and General Counsel of CNA Corp and holds an adjunct faculty appointment at George Washington School of Law. The views expressed in this paper are those of the author along and do not represent the views of CNA or any of its sponsors.