By now, the international legal and political community has heard about the July 12 decision by The Hague-based arbitration tribunal to settle disputes in the South China Sea. Some nations in Asia — particularly American allies like Japan — have taken strong stands in support of the decision and the rule of law. But belatedly some are realizing that the decision has important potentially negative implications for their own maritime claims and disputes.
In particular, the tribunal ruled that no features in the Spratly Islands and the Scarborough Shoal can generate exclusive 200 nm zones (EEZ) or a continental shelf. This means that extended jurisdictional claims and boundaries based on similar features elsewhere that were claimed to be legal “islands” have been deeply undermined. To bring the claims in accordance with the arbitral decision, either the countries themselves must rescind them, or their opponents may file a complaint under UNCLOS and have the claims arbitrated. But according to this precedent, the eventual likely outcome is that they are only rocks entitled to a 12nm territorial sea. Such features include Tok Do/Takeshima in the Sea of Japan where sovereignty and attendant maritime zones are disputed by South Korea and Japan; the Senkaku/Diaoyutai in the East China Sea — a dispute involving China, Japan, South Korea, and Taiwan; and Okinotorishima in the western Pacific Ocean claimed by Japan.
Article 121 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides that “rocks” that cannot “sustain human habitation or economic life of their own” are not entitled to an EEZ or a continental shelf. The tribunal’s rationale that none of the Spratlys are legal islands rather than rocks was that the feature must have an “objective capacity which can sustain a stable community of people” and cannot include official or seasonal habitation.
The tribunal said that “human habitation must be permanent and indigenous and that their supporting economic activity must arise only out of activity on the islands themselves, must not be artificially stimulated with outside support, and must not be connected either to the wider area around the islands or to wider national economy.” The tribunal also found that “human habitation” entails the “non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner,” and requires “conditions sufficiently conducive to human life and livelihood for people to inhabit, rather than merely survive.” This means a “presence” for “an extended period of time” by a “settled group or community for whom the feature is a home.” The temporary presence of migrant workers for a “few short years” failed to suffice because the purpose of their presence was not to “make a new life for themselves on the island.”
Further, the tribunal said that “economic life of their own” means that “economic life” is “more than the mere presence of resources,” and that “some level of local human activity to exploit, develop, and distribute those resources would be required.” “Of their own” means that the feature(s) “must have the ability to support an independent economic life, without relying predominantly on the infusion of outside resources or serving purely as an object for extraction activities, without the involvement of a local population.”
This means that Tok Do/Takeshima, the Senkaku/Diaoyutai, and Okinotorishima are probably not legal islands and therefore cannot be used as base points to declare EEZs and continental shelves. This also changes the potential allocation of any fisheries, and petroleum/mineral resources in the affected areas. In this situation, such claims and the hypothetical equidistant line ignoring the features must be reevaluated. The same may be said of Pratas Island in the northern South China Sea but in this case ignoring Pratas as a base for EEZ claims opens up an area of high seas.
In the case of Tok Do/Takeshima the hypothetical equidistant boundary would now move eastward, disadvantaging Japan (see Map 1).
In the East China Sea, the hypothetical equidistant EEZ boundary would move to the east but not as far as China would like since it also claims an extended continental shelf all the way to the Okinawa Trough (see Map 2).
As for Okinotorishima (Map 3), since it is likely a rock, Japan’s claims to a full EEZ and continental shelf are unsupported and its claims to an extended continental shelf are not likely to be approved by the Commission on the Limits of the Continental Shelf. Of course all the boundaries must still be negotiated and “equity” may play an important role. But the starting point for negotiations has changed.
There may well be other “islands” in the region that have become rocks and that will then influence boundary negotiations. The point is that this decision has implications around the world and particularly in Asia. Countries should be careful regarding their unqualified support for it. A new law has been written and it may be used against them.