None of the Spratly Islands is an island, the Arbitral Tribunal at The Hague ruled yesterday.
The Philippines had sought, among other things, a ruling on whether certain maritime features claimed by both China and the Philippines are islands, rocks or low-tide elevations under the UN Convention on the Law of the Sea (Unclos).
The distinction is important as the status would determine whether the feature is entitled to a 200- nautical-mile exclusive economic zone (EEZ) and continental shelf of its own, a 12-nautical-mile territorial sea, or no maritime zone.
The tribunal said in its ruling that it first undertook a technical evaluation as to whether certain coral reefs claimed by China are or are not above water at high tide. It also relied heavily on archival materials and historical hydrographic surveys.
Pointing out that Unclos classifies features on the basis of their “natural condition”, it noted that “many of the reefs in the South China Sea have been heavily modified by recent land reclamation and construction”.
Under Articles 13 and 121 of Unclos, features that are above water at high tide generate an entitlement to at least a 12-nautical-mile territorial sea, whereas features that are submerged at high tide generate no entitlement to maritime zones.
Under Unclos, only “a naturally formed area of land above water at high tide” that can support human or economic life – on its own – can be considered an island, entitled to a 200-nautical-mile EEZ and continental shelf of its own.
The tribunal said many of the features in the Spratly Islands are currently controlled by one or another of the littoral states, which have constructed installations and maintain personnel there. The current presence of official personnel on many of the features is dependent on “outside resources and support” and many of the features have been modified to improve their habitability.
As such, it concluded that all of the high-tide features in the Spratlys, including Itu Aba, are legally “rocks”, entitled to only a 12-nautical-mile territorial sea. While not referred to in its written submission, the Philippines in an oral argument at the tribunal had said Taiwan-held Itu Aba cannot sustain economic activity and therefore is not entitled to an EEZ. Manila’s gambit was that if 48ha Itu Aba – as the largest natural land formation in the Spratlys – cannot be considered an island, then none of the land features in the chain can be considered as one.
The tribunal agreed with the Philippines that Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are high-tide features and that Subi Reef, Mischief Reef, and Second Thomas Shoal were submerged at high tide in their natural condition.
However, it disagreed with the Philippines on Gaven Reef (North) and McKennan Reef and concluded that both are high-tide features.
hweepeng@sph.com.sg
This article was first published on July 13, 2016.
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