Itu Aba isn’t an island on the account that it doesn’t support a “stable community of people

[WuMaoCleverbot]

5 Takeaways: A Closer Look at the Historic South China Sea Arbitration Award
By Ankit Panda
July 13, 2016

We’re hardly 12 hours out from the release of today’s historic award by a five-judge tribunal in The Hague on maritime entitlements in the South China Sea. The Tribunal, among other things, ruled China’s nine-dash line claim invalid and ruled in the Philippines’ favor on almost all counts. You can read my summary and early analysis of the award in a previous article here at The Diplomat. While I’m far from finished with the 500-page document, I do want to highlight some notable takeaways from my early reading of the award. (Readers may have caught some of these impressions on Twitter already, but it’s always good to avail of the longer form permitted here.)

Taiwan’s island isn’t an island. One of the big bang outcomes of the arbitration is the ruling on Itu Aba, the largest feature in the Spratlys occupied by Taiwan. Itu Aba had been a complicating factor in this whole dispute. While the case involved a filing by the Philippines against China, Taiwan possessed a feature at the center of the Spratly imbroglio that could have potentially been ruled an island under Article 121.3 of the United Nations Convention on the Law of the Sea, generating a full 200 nautical mile exclusive economic zone (EEZ). This didn’t happen and Itu Aba is just a rock, like so many of the other features involved in the award.

My colleague Shannon has written about why the result is so deeply disappointing for the Taiwanese, but there’s a broader fallout that’s worth considering too. If Itu Aba isn’t an island on the account that it doesn’t support a “stable community of people,” it raises questions about other EEZ-generated possessions, like Wake and Midway Islands for the United States and Japan’s Okinotori claim (which I’ve discussed recently). The U.S. hasn’t ratified UNCLOS while Japan has. Meanwhile, the results of this award are binding on China and the Philippines, but will serve as a notable precedent in potential other cases of generously understood “islands.”

Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Let’s talk about Mischief Reef. In its ruling, the Tribunal decided that Mischief Reef, along with Second Thomas Shoal, is part of the Philippines’ continental shelf and falls within Manila’s EEZ. (Paragraph 647 outlines this in more detail.) As a low-tide elevation, it receives no special consideration for a territorial sea. As some readers may be aware, Mischief Reef also happens to be the site of one of China’s artificial islands. In paragraph 1177, the Tribunal remarkably notes that “China has effectively created a fait accompli” at Mischief Reef.

The Tribunal’s observation is correct. Mischief Reef now contains an illegally constructed Chinese dual-use facility on the Philippines continental shelf that a) cannot be reverted to its pre-artificial island state, and b) is highly unlikely to change hands. If Manila and Beijing do enter bilateral talks as per the Duterte government’s recent signals, this fact will loom as an awkward elephant in the room.

Finally, way back in October 2015, after the first U.S. freedom of navigation operation (FONOP) near Subi Reef, I made the incorrect prediction that Washington would opt to conduct a FONOP near Mischief Reef, which was enticing as it likely had far fewer constraints, permitting a high seas-assertion FONOP instead of an innocent passage operation like the first three we’ve seen. The ITLOS award effectively confirms what I’d suggested about the feature, but it also makes it an acute flash point given U.S. commitments to the Philippines under the Mutual Defense Treaty.

Slice it any way, it seems likely that Mischief Reef, through China’s island-building, has been sealed in as a long-term flash point in the South China Sea.

China’s island-building made the Tribunal’s job a lot harder than it needed to be. Remember, when the Aquino administration in the Philippines decided to file an Annex VII compulsory arbitration under UNCLOS back in 2013, after the 2012 stand-off over Scarborough Shoal, the present seven Chinese artificial islands didn’t exist (though the features were Chinese possessions). China began building them up shortly thereafter, but the arbitration was always a motivating factor.

In its award Tuesday, the Tribunal notes as much: “China has undermined the integrity of these proceedings and rendered the task before the Tribunal more difficult.” The Tribunal effectively alleges that Beijing obstructed the swift carriage of an investigation. Reading pages 131 to 260 of the decision, it’s apparent, for instance, how much work went into ascertaining the pre-reclamation status of some of the features that the Tribunal ended up ruling on. Given Chinese land reclamation and island-building activities, the Court resorted to pre-2013 hydrographic and navigational data from a variety of sources to make its decision easier (going back to early 20th century sources in some cases).

China’s non-participation in the case was always going to be an issue, but the award makes it clear just how deleterious Beijing’s activities in the Spratlys were to the Tribunal’s work.

China’s “own goals” in the South China Sea. Several paragraphs in the Tribunal’s award expose episodes of China shooting itself in the foot. For instance, there’s the Tribunal’s statement in paragraph 1164 that it would have found itself lacking jurisdiction over the seven artificial island-bearing features had China stated that they had military applications. Instead, the Tribunal “will not find activities to be military in nature when China itself has consistently resisted such classification and affirmed the opposite at the highest level.” Remember Xi Jinping’s pledge in the White House Rose Garden that the Nansha Islands (the Chinese name for the Spratlys) would not be militarized? Turns out that turned what could have been a less embarrassing verdict into a virtual calamity for China.

Other areas in the award–for instance, paragraph 209, on petroleum block assignment–highlight simple lapses in China’s conceptual framing of its position. In the aforementioned paragraph, the Tribunal points out that had China eschewed framing its entitlement to continental shelf rights in terms of the language of “historic rights” and used language consistent with UNCLOS, it may have had some luck with the Tribunal. Instead, the judges found that “the framing of China’s objections strongly indicates that China considers its rights with respect to petroleum resources to stem from historic rights,” which were declared invalid elsewhere.

One final example of the Tribunal underlining an “own goal” by China is in its reading of the nine-dash line itself. Paragraph 213 notesthat China’s declaration of baselines in the Paracels and around Hainan contradicts its ambiguous claim to a territorial sea or internal waters within the area claimed by the nine-dash line. “China would presumably not have done so if the waters both within and beyond 12 nautical miles of those islands already formed part of China’s territorial sea (or internal waters) by virtue of a claim to historic rights through the ‘nine-dash line,’” it notes.

One wonders if China could have fared better on these counts if it had actively participated in the arbitration process, instead of refusing to participate and leaving its position up to the Tribunal’s interpretation based on a lone position paper, public statements, and past declarations.

Reduced bargaining space. One final takeaway from today’s award is somewhat counter-intuitive. The Philippines may have won a favorable award on nearly all 15 of its submissions, but that leaves the space for bilateral negotiation and “off ramping” with China limited. With Itu Aba a mere rock and the Spratlys reduced to a small collection of rocks with territorial seas and some LTEs, there’s little the Philippines can concede that would not involve the capitulation of something the ITLOS Tribunal has clarified is legitimately Manila’s under international law. For instance, concessions over Mischief Reef or Second Thomas Shoal (where the stranded BRP Sierra Madresits) are out of the question unless Duterte wants to either face constitutional scrutiny under Article XII, Section 2 of the Philippines constitution or public outcry.

The one open door–somewhat poetically–is Scarborough Shoal, the disputed feature that led Manila to the court in the first place. (After the award, Scarborough is a disputed feature, albeit within the Philippines’ EEZ.) The Tribunal’s award leaves some space for the two sides to come to an agreement on joint resource exploitation. For this to work–in my personal read of the diplomatic situation–China would have to be both literally and figuratively the bigger country and make the first concession. (Chinese Coast Guard currently hold the chips for Scarborough Shoal, chasing away Chinese fishermen and sailors.) Manila isn’t in a position to make the first concession. Another option may be some form of energy exploitation bargain at Reed Bank, but that too has its complications, as Jeremy Maxie explores in The Diplomat.

Given China’s reaction to the award and the fact that, despite its legal propriety, the verdict will be read as another “national humiliation” in a long string of embarrassments, I don’t see Beijing taking the opening.

http://thediplomat.com/2016/07/5-ta...e-historic-south-china-sea-arbitration-award/

 

[WuMaoCleverbot]

TAIPING ISLAND: AN ISLAND OR A ROCK UNDER UNCLOS

In its Memorial and supplemental information submitted to the arbitral tribunal in The Republic of the Philippines v. The People’s Republic of China, the Philippines argues that all features in the Spratly archipelago are incapable of sustaining human habitation or economic life of their own. Even the largest feature in the Spratlys – Taiping Island (Itu Aba) – is a “rock”. Accordingly, Taiping Island cannot generate maritime entitlement to a 200 nautical miles, an Exclusive Economic Zone (EEZ), or a continental shelf under the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Is Taiping Island an “island” or a “rock” under UNCLOS? Is Taiping Island capable of sustaining human habitation or economic life of its own? Is Taiping Island entitled the right to generate a 200 nm EEZ or a continental shelf? Is the Philippines’ argument well founded in fact and law? For the purpose of answering these questions, it is important to examine the facts about Taiping Island and discussing its legal status in accordance with Article 121of the UNCLOS.

Taiping Island, known in English as Itu Aba Island, in Chinese as Tàipíng Dǎo (literally: “peace island”), in Tagalog as Ligao, and in Vietnamese as Đảo Ba Bình, is the largest of the naturally occurring Spratly Islands in the South China Sea. The island is named in honor of a Nationalist Chinese Navy warship which sailed to the island in December 1946 after the Second World War. Under Article 2(f) of the 1951 San Francisco Treaty of Peace with Japan and Article 2 of the 1952 Treaty of Peace between the Republic of China and Japan, Japan renounced all right, title and claim to the Spratly Islands and to the Paracel Islands in the South China Sea. Since 1956, the island has continuously been administered by the Republic of China (Taiwan). Since February 1980, Taiping Island has been incorporated into the administration of Qijin District, Kaohsiung City of Taiwan.

The island has a long and narrow shape that is low and flat, approximately 1,290-meter long and 366-meter wide. The surface includes fine sand and coral reefs formed by weathering. Around the island are sandy beaches, with narrower 5-meter wide beaches on the south and north sides, on the east side 20 meters wide, and on the southwest side 50 meters wide. The island has diverse flora and fauna, and has historically been mined for phosphates to the point of depletion. Taiping’s waters may be suitable for fisheries and may hold potential oil and gas reserves. There has been no formal exploration or mining conducted thus far.

Taiping is the only island with fresh water in the Spratly archipelago. In 1992, a water catchment, reservoirs and other facilities were constructed. In 1993, two complete desalination machines were placed on the island, which operate for four hours each day, generating approximately 6,000 gallons of fresh water.

Prior to the use of solar power, facilities on the island were powered mainly by five 200 kW diesel generators; all fuel is shipped from the Taiwanese main island. Since December 2014, Taiping Island has been powered by a 40 kW photovoltaic power station that will generate an estimated 50MWh per year. The entire solar power system generates an estimated 189,492 kWh per year, saving an estimated 49,000 litres of diesel fuel per year. Taiwan’s policy goal is to develop Taiping Island as a low-carbon, environmentally sound island, to be used for peaceful purposes.

Taiping hosts a shelter for fishermen, a hospital, a post office, a Guanyin temple, weather stations, satellite telecommunications facilities, radar surveillance equipment and other communications equipment located on the island. There are five public telephones and internet connectivity. The southeast side of the island contains old Japanese constructions. The “Taiping Cultural Park” is located near an old pier that was damaged.

A 1,200-meter long, 30-meter wide runway was constructed on Taiping Island in late 2007. In February 2008, Taiwan’s then-president Chen Shui-bian landed on the island in an air force C-130 cargo plane to inaugurate the airstrip. There is also a large hard-standing area capable of accommodating two C-130 aircraft. The island has a helicopter platform that is not used frequently. There have been a number of plans to lengthen the runway.

Since there are many reefs around the island and the surrounding water is shallow, transportation and supply vessels are unable to dock on the island itself. Supplies are loaded on to rafts and taken to and from shore from an anchorage about 1.2 nm from the island—a difficult and time-consuming task due to the risk of large waves. Taiwan is currently undertaking several development project on the island, including building two new piers and access roads, which are to be completed by the end of 2015. Other projects include a lighthouse, navigation guidance and other auxiliary facilities, rain water drainage improvement, landing light repairs, and a refueling facility. In addition to national defense, humanitarian, and transportation purposes, the runway and piers will also be used in support of future economic development projects and activities.

Currently, a military supply ship services the island during a single voyage in April and November each year, anchoring for one day to deliver personnel and military supplies. Additionally, a civil merchantman arrives with general goods every 20 days. This ship is also used as a transport for stationed personnel and occasionally for scholars who conduct research on the island. In March 2008, then-presidential candidate Ma Ying-jeou proposed in his ocean policy to establish a marine peace park in Taiping Island. Since 2011, Taiping Island has become an attractive visiting site for college students, teachers and researcher who participate in a study camp organized by Taiwan’s Ministry of National Defense. The camp is intended to enhance awareness among young people of the importance of maritime strategy and security in the South China Sea.

At present, Taiping has a population of 200. This includes personnel from the Coast Guard Administration, soldiers from Navy and Air Force, and no civilians. Personnel are stationed on the island to safeguard sovereignty, national defense, security, and for environmental protection and law enforcement.

With these facts in hand, we can return to the application of Article to Taiping Island. Article 121 has following three paragraphs:

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

1. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.

1. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

This article creates two categories of islands: (1) the islands that are capable of sustaining human habitation or economic life of their own, and therefore, just like other land territory, have a territorial sea, a contiguous zone, an EEZ, and a continental shelf; and (2) the islands that are incapable of sustaining human habitation or economic life of their own, and therefore are treated as “rocks.”

How should the article, in particular its third paragraph, be interpreted and applied to Taiping Island? According to Jon M. Van Dyke and Robert A. Brooks, Article 121 should be interpreted according to Article 31 of the 1969 Vienna Convention on the Law of Treaties, which provides for treaty interpretation in accordance with “good faith […] to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the purposes for establishing coastal EEZs cannot justify claims to EEZs around uninhabited islands situated far away from their coasts, Van Dyke and Brooks have argued that UNCLOS should note be applied to remote rocks or reefs to generate extended maritime zones. Accordingly, only if stable communities of people live on the island can islands generate maritime entitlements.

Van Dyke and Dale Bennett have argued that if a rock or reef cannot sustain human habitation permanently for at least 50 people, it cannot claim an EEZ or continental shelf. Other international legal scholars, including Northcut Ely, Arvid Pardo, Gilbert Gidel, and Robert D. Hodgson have expressed similar views. There is no doubt that Taiping Island is capable of sustaining human habitation permanently for more than 150 people.

Jonathan I. Charney has advocated a broader interpretation of Article 121(3). He argued that a rock is a kind of island, and that Article 121(3) would not be needed in the Convention if they were not. Article 121(3) uses “or” between “human habitation” and “economic life of their own,” and therefore it is only necessary to prove that a land feature can sustain either human habitation oreconomic activity of its own to be able to claim an EEZ or continental shelf.

After examining the travaux preparatoires of UNCLOS III, Charney reasoned that the habitation referred to in Article 121(3) need not be permanent in nature, and the economic activity need not be capable of sustaining a person throughout the year. Activity could include industry or exploration of the living or mineral resources in the territorial sea of the island or rock. Charney suggested that a feature is not subject to Article 121(3) if it has mineral resources such as oil or gas, harvestable fisheries, or is the location for a profitable business such as a casino, which could sustain an economy sufficient to support that activity through the purchase of necessities from external sources. He maintained that Article 121(3) should permits a finding of an economic life as long as the feature can generate revenues sufficient to purchase the missing necessities. Charney concluded that changes in circumstances might help rocksto obtain the legal status of islands and therefore have the right to generate EEZs and continental shelves.

Jonathan L. Hafetz has also argued that marine conservation constitutes an economic use within the meaning of Article 121(3), as conservation activities bring net economic benefits and sustainable development through the establishment of marine protected areas.

Although expert opinion on the number of Spratly features that qualify as islands under Article 121 of the UNCLOS varies, Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig suggest that between 25 and 35 of the 80-90 distinct features in the Spratly area are above water at high tide, and therefore they qualify as “islands” under Article 121 of the Convention. Taiping Island is the largest among these land features.

Robert Beckman and Clive H. Schofield suggest that because they all have vegetation, and in some cases roads and structures have been built on them, the following features are islands under UNCLOS: Taiping Island, Thitu Island, West York Island, Northeast Cay, Southwest Cay, Spratly Island, Namyit Island, Nansha(n) Island, Sand Cay, Loaita Island, Sin Cowe Island, and Amboyna Cay. In January 2010, the U.S. government released a South China Sea Map and Gazetteer, in which Taiping Island, along with other smaller features, are labelled as “islands.” More recently, BBC correspondent Bill Hayton wrote in his book that Taiping Island is “clearly able to support at least minimal human habitation.”

There are more writings of the highly qualified scholars in the field of the law of the sea that can be cited in support of the legal status of Taiping Island as an island under the UNCLOS. But the conclusion for this short essay is that in fact and law, there is no doubt that Taiping Island is capable of sustaining human habitation or that can have economic life of its own. Accordingly, this island is not a “rock” as referred to in paragraph 3 of Article 121 of the Convention. This means that Taiping Island is indeed an island and in accordance with Article 121(2), it can have EEZ and continental shelf.

https://amti.csis.org/taiping-island-an-island-or-a-rock-under-unclos/


The Taiwanese already admitted that Itu Aba is not capable of sustaining human habitation or economic life of its own. Taiwan is pouring enormous resources just to sustain Itu Aba. Taiping Island cannot generate maritime entitlement to a 200 nautical miles, an Exclusive Economic Zone (EEZ), or a continental shelf under the 1982 United Nations Convention on the Law of the Sea (UNCLOS).