Understanding the difference between an Island and a Rock in context of South China Sea Dispute

Introduction

 

Nations along the South China Sea are caught in a dispute over the ownership of spate of islands and rocks found in South China Sea. The dispute reached its zenith with the declaration of the judgment by the arbitration tribunal on the case bought to it by Philippines. On 12th July, 2016, the tribunal ruled in favor of Philippines citing that claims made by China are not valid. But what exactly is the South China Sea dispute and where did it all start?

 

The South China Sea dispute revolves around island and maritime claims by several sovereign states- the Nation of Brunei, the People’s Republic of China, the Republic of China (Taiwan), Malaysia, the Republic of Indonesia, the Republic of the Philippines, and the Socialist Republic of Vietnam. There are estimated 11 billion barrels of oil, 190 trillion feet of natural gas and 10% of the world’s fisheries in the region and 30% of the global shipping trade passes through it, because of which many non-claimant nations wants to keep it as international waters. Several nations, especially US has conducted “freedom of navigation” operations to promote this situation. The importance of the South China Sea region is also the reason why the claimant nations want to assert their sovereignty on it. 

 

The dispute started when Japan renounced all claims to the Spratly islands and other conquered islands and territories in the Treaty of San Francisco as well as Treaty of Peace with the Republic of China signed on 8 September 1951. The problem was that Japan did not indicate any successor states, thus leaving ambiguity regarding the ownership of the island chain. Thereafter there was multiple claim by various countries. Since China was not invited to the treaty talks, it issued its own the Declaration on the Draft Peace Treaty claiming its sovereignty over the archipelagos in the South China Sea, Including the Spratly Islands. The Philippines based its claim on its geographical proximity to the Spratly Islands. The Republic of China took control of the largest island, Taiping Island since 1946.Vietnam claims the islands have belonged to it since 17th century and began to occupy the westernmost islands. Malaysia joined the dispute in the early 1970s claiming the islands nearest to it. Brunei also extended its exclusive economic zone, claiming the Louisa Reef.

 

There is a serious interest shown by all the nations regarding Spratly Islands. Spratly Island is located at the heart of South China Sea.  By controlling these islands, the country in question would be able to ensure the safe passage of their goods, and claim the potential sources of natural gas and oil found under the island’s seabed. Anyone claiming Spratly Island can also extend their Exclusive Economic Zone (EEZ) and gained exclusive rights to their surrounding territories. This has also led to insidious strategies being adopted by the countries. The most notable being China and its strategy of building islands so as to claim EEZ. It is especially important for China as it tries to become the leading superpower of the world. China especially seeks to control the sea lane route so as to increase its national security by rerouting merchant ships, block potential threats, or even divert the delivery of goods to a disputing state. It can also build naval bases on these islands so as to increase sea lane security. This obviously is causing a lot of uneasiness to the other claimant nations as not only do they face a possibility of having to give up their claims on the islands along with all the advantages that comes with it but also face a real possibility of having to subjugate themselves to China’s supremacy which is not acceptable to most of these claimant nations. 

 

The interesting dimension of this dispute is the way the United Nations Convention on the Law of the Seas (UNCLOS) is being used to legitimise the claims each claimant nation have.  The UNCLOS, also known as the Law of the Sea Convention or the Law of the Sea treaty put down an inclusive regime of law and order in the world’s oceans and seas. It replaces the “freedom of the seas” concept which dates back to the 17th century. It establishes rules that governs all uses of the oceans and their resources. The convention came into force on 16 November 1994 and it is now globally recognized regime in dealing with all matters relating to the law of the sea. There are 167 countries and the European Union that has joined the convention. All the claimant nations, along with China, is a party to this treaty. Article 121 dealing with the definition of what constitutes Islands and Rocks is one of the important articles of the treaty that needs to be studied to understand the varied claims along with the Article 56 that deals with the EEZ.

 

UNCLOS- Definition of Islands and Rocks

 

The convention has 320 articles and nine annexes which governs all aspects of ocean space. The most significant issues the convention covers are setting limits, navigation, archipelagic status and trans regime, exclusive economic zones (EEZs), continental shelf jurisdiction, deep seabed mining, the exploitation regime, protection of the marine environment, scientific research, and settlement of disputes.

 

Under Part VII of UNCLOS, An island is defined as “a naturally formed area of land, surrounded by water, which is above water at high tide”. However, certain kinds of islands, namely those labelled as rocks which “cannot sustain human habitation or economic life of their own”, they are not entitled to an exclusive economic zones or continental shelves. (Schofield, 2017)

 

Therefore an Island is entitled to 200 nautical miles of exclusive economic zone as well as a continental shelf. A rock on the other hand is only entitled to 12 nautical miles instead of 200 nautical miles. It needs to be emphasized that gaining rights to exclusive economic zone does not guarantee sovereignty to the nation as per the Article 56 of the UNCLOS treaty. (Schofield, 2017)

The Case of Spratly Islands

 

Spratly Islands is a chain of fourteen disputed islands, islets and cays and more than 100 reefs that are in the proximity of Malaysia, Philippines and Vietnam but are claimed by all the claimants in South China Sea dispute. Malaysia, Vietnam, Philippines as well as China and Taiwan have created structures on some of these islands. Taiwan has occupied the largest island of the island chain namely the Taiping Island. Brunei has claimed the exclusive economic zone in the south-eastern part of Spratlys which has the Louisa Reef. Malaysia, Philippines, Taiwan, China and Vietnam have their military stationed on this Island. Philippines took China to the arbitration tribunal arguing that China’s claim on these island is not legitimate and that China cannot use the historical nine dash line to prove the legitimacy of its claim. Here are the points that Philippines used primarily to argue its case:

 

All features on the Spratly Archipelago are incapable of sustaining human habitation or economic life of their own. Even the largest feature in the Spratlys-Taiping Island- is a rock. 

Taiping Island, even the largest island in the Spratly chain, cannot generate maritime entitlement of 200 nautical miles, an exclusive economic zone or continental shelf under the 1982 United Nations Convention on the Laws of the Seas (UNCLOS).

Chinese had different arguments to put forth. 

 

China argued:

Based on nine dash line, China claims sovereignty on the Islands.

 

China claims Spratly archipelago as “islands” and has undertaken various projects in the island chain- including increasing military presence and building airstrip to prove “human habitation” implying the fact that it is habitable and hence qualified under UNCLOS to be regarded as “Island”. Doing so, it can claim the exclusive economic zone of 200 nautical miles. However it still does not guarantee sovereignty. 

 

It is very clear that it is in the interest of Philippines as well as Malaysia and Vietnam to prove that Spratly archipelago is in fact just chain of “rocks” as per definition of UNCLOS. This is because of their own close proximity to the islands which make them naturally accessible to them. However, it being proven as a “rock” would ensure that it stays out of China’s control which would mean positive geopolitical implications for Philippines, Malaysia and Vietnam. 

 

On the other hand, it is important to note that it is of absolute significance for China (as well as Taiwan on account of its occupation of Taiping Island) to prove that Spratly archipelago is in fact group of “islands” as per UNCLOS definition as it will then get access to larger parts of South China Sea and in turn the exclusive economic rights of the region. China’s claims are based on nine dash line which is not recognized by the international community as well as UNCLOS. 

The judgment to the case Republic of Philippines vs People’s Republic of China mentioned the following important points:

 

1. China apparently claims that it has historic rights on the resources in the waters of South China Sea. The areas that come under its so-called nine-dash line were stamped out by the ICJ where they found that the claims by China were incompatible with the maritime zones that come under UNCLOS.

2. The above high-tide features, which are disputed, in the Spratly Islands are not capable of developing any extended maritime claims beyond a 12-nautical-mile territorial sea.

3. The sovereign rights of the Philippines have been violated by China. China interfered in the EEZ of Philippines by constructing artificial islands, failing to prevent Chinese fishermen from entering and fishing in Philippines territory and conducting fishing and petroleum exploration activities.

4. China has violated its obligation under UNCLOS, to protect and preserve fragile ecosystems and the habitats of threatened or endangered species. Through construction of various artificial islands on seven features in the South China Sea and their reclamation of large-scale land, they have violated their obligation. Also, severe harm has been cause to coral reef environment in that region.

5. The dispute in South China Sea has been aggravated since the start of the arbitration process because of the activities carried out by China. Their large-scale land reclamation and artificial island construction have inflicted harm on the marine environment that is beyond repair.

 

Islands and Rocks- Comprehensive Analysis

 

Spratly Island and the larger South China Sea dispute has raised some important points regarding what constitutes an island and what can be referred to as rocks. It has led to the following five questions:

1. What is defined by human habitation?

2. What constitutes sustaining economic life?

3. Are they independent of each other?

4. What about “rocks” that are extended to be artificially built as an island? Are they eligible to be termed as “island”?

5. What about “islands” that can sustain human habitation or economic activity but are low tide structures?

 

There has been no clear definition of what constitutes human habitation. If we focus on the definition given by UNCLOS, it implies that an island should be able to sustain human life on it. This begs the question what would help sustain human life? Do we focus on a minimum level of sustenance, which could point to the lowest levels of basic necessity that is required for human survival? Or should we consider some form of minimum standards that are required to live comfortably as a way to understand what constitutes human habitation. Van Dyke and Dale Bennet bring in a different perspective. According to them, if a structure is capable of sustaining at least 50 humans, it should be termed as an Island. This perspective hinges on the amount of people an island can sustain but fails to take into account the parameter to decide what is required for 50 people to sustain. Similarly, Beckman and Schoefiled points out that basic infrastructure and vegetation can point to “human activity” and hence such a structure can be referred to as “Islands”. However, it fails to prove whether any existing infrastructure and vegetation can be regarded as enough to sustain any human activity. In the South China Sea dispute itself, many of such islands or rocks are occupied by military and have structures related to defence on them. This is being done to prove “human habitation” as well which going by the literal definition can be considered accurate. However there are some caveats. 

 

Any human habitation should be able to give some basic level of sustenance- not only in terms of what constitutes basic needs in form of food or housing or anything that is required for human to survive at the bare minimum but also any structure capable of sustaining life should be able to provide for economic, social and mental fulfilment and a livelihood to the occupant of the island itself. This means that every individual should have the capability:

1. To have the means to build a livelihood in the island and to undertake economic activity that is sustainable for larger periods of time

2. Social needs like education and health be taken care of.

3. The basic necessities absolutely essential for survival are easily accessible.

 

Similarly, economic activity is also open to interpretation. What does economic activity really constitute? Many nations have indulged in oil drilling as well as mining. However can any activity constitute as economic activity? The answer to this question requires much closer examination. If economic activity involves anything that can generate revenue then presence of any economic activity on any structure would ensure that it be considered “island” although otherwise it might qualify as more of a “rock” than an “island”.

 

However Article 121 can be looked from a broader lens. According to Jonathan Charney, the article includes the word “or” between “human habitation” and “economic activity”. Hence even if an economic activity like “mining” is undertaken, then that physical feature can still claim to be an island on account of fulfilling one of the two criteria. This economic activity, according to him, need not be throughout the year. By this definition, Spratly Chain can claim to be “island”.

However, the real argument here is that although human habitation and economic activity might seem independent of each other, they in the truest sense are interdependent. This has been pointed out in the arbitration tribunal judgment where this interdependence is emphasized and hence the implication is that although the word “or” is used between the two keywords “human habitation” and “economic activity” in Article 121, it is incorrect to consider them as independent on the premise that any form of human habitation cannot be sustained without some form of economic activity and vice versa. Similarly, any economic activity undertaken would require some form of human habitation. This fact has been rightly established while understanding how these two keywords can be defined and what it constitutes.

 

China has also been undertaking the artificial construction of islands on structures that are deemed as “rock” as per UNCLOS by extending them. Under UNCLOS, artificial islands, installations and structures do not possess the status of islands. The presence of artificial islands does not affect the delimitations of the territorial sea, continental shelf or the EEZ. They do not have any territorial sea of their own. Hence the question of artificial island gaining the status of “islands” becomes illegitimate.

The definition as per UNCLOS defines islands as structures that remain above sea at high tide but there is ambiguity regarding the structures that potentially can sustain human habitation as well as economic activity but are elevated in low tides. Two important cases can be looked upon in this regard. 

1. Nicaragua v. Colombia case- In this case, the International Court of Justice stated that ‘low-tide elevations cannot be appropriated’.

2. Qatar v. Bahrain case- In this case, the court expressed itself in more guarded terms; it said: “International treaty law is silent on the question whether low tide elevations can be considered to be ‘territory’. Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations”. In fact, the Court in Qatar v. Bahrain was keen to emphasize that: “the decisive question for the present case is whether a State can acquire sovereignty by appropriation over a low-tide elevation situated within the breadth of its territorial sea when that same low-tide elevation lies also within the breadth of the territorial sea of another State”. (Justice, 2001)

 

Therefore, because of this rather special situation, the ICJ submitted that it was premature for the court in the subsequent Nicaragua v. Colombia case to come up with any general rule from what had been said in Qatar v. Bahrain case.

There are certain policy observations that can be made from the South China Sea case with regards to Article 121 of UNCLOS Treaty. These are:

1. International jurisprudence and various state practices are of only limited utility on the issue of the South China Sea. The Article 121 of UNCLOS is highly desirable but presently lacks an authoritative interpretation.

2. With various views in play, it is becoming clear that the parties that are involved in the disputes over East and South East Asian islands have differing perceptions of the certain features to generate broad maritime claims. Competing interests and views regarding various features are therefore, a key obstacle when it comes to achievement of a peaceful settlement of territorial disputes and regional maritime claims. 

3. Recently, there has been a trend that is going on, which asserts on minimizing the role of small and remote islands in the generation of claims to maritime space. The delimitation of maritime boundaries is encouraging and suggests approaches to overcoming the island/rock conundrum in the South China Sea. This should help reduce the scope of overlapping maritime claims and subsequently “defuse the bomb” of potential conflict over disputed islands in the region. (Initiative, 2015)

 

Conclusion

The United Nations Convention on the Law of the Sea tribunal rejected China's claim of sovereignty on many of these Island or rocks in South China Sea under the agreement that a historical nine dash line cannot be used to claim much of this territory. There is growing concern that tensions over territorial disputes in the South China Sea could escalate and it would lead to serious confrontations between China and its neighbours. China's rise has already caused a significant regional counterbalancing that it would’ve expected and it still isn’t clear if the leadership regards the South China Sea as a “core interest”. 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 argued 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 Spratly Island- Taiping Island- is a “rock”. Accordingly, Taiping Island cannot generate maritime entitlement of 200 nautical miles. The interpretation of article 121(3) in first instance has to be addressed by individual states establishing the limits of their continental shelf and EEZ. The interpretation of article 121(3) can become an issue either in disputes over the outer limit of the EEZ and the continental Shelf, or the delimitation of these zones between neighbouring states. Although entitlement to and delimitation of maritime zones are closely related, in the case of article 121 (3), both issues seem to have different implications. For the delimitation of maritime boundaries between states, in the most cases with regards to South China Sea, it is not necessary to resolve the question whether a particular island is a rock under article 121(3) of the Law of Sea Convention. States may even choose not to address this issue if the island concerned is the only feature resulting in an overlap of EEZs and the continental shelf. This suggests that for most, delimitation of maritime boundaries and the clarification of article 121(3) is not a matter of great urgency. 

 

The geopolitical landscape of the region is in flux too. There have been two new developments with regards to the leader of the players involved in the region. First, President Duterte came into power in Philippines and has slowly shifted towards China, moving away from its previous ally- the United States of America. This has caused a major shift in the power play of the region. Philippines which has taken the case to the tribunal would now be less likely to be concerned about the dispute over island chain in South China Sea. Secondly, Donald Trump is the new president of the United States who is showing little interest in keeping the security arrangement in the South China Sea intact which can trigger dire consequences for all the neighbours of China. Thus, how the issue unfolds in future is yet to be seen and the geopolitics of the region will largely determine how the issue around the islands be resolved eventually.

 

 

 

References

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2. Sharda. (2016, July 21). Nauticl Law: What is UNCLOS? Retrieved March 19, 2017, from Marine Insight: http://www.marineinsight.com/maritime-law/nautical-law-what-is-unclos/

3. Initiative, A. M. (2015). A Case of Rocks or Islands?

4. Justice, I. C. (2001). Maritime Delimitation and Territorial Questions between Qatar and Bahrain. 

5. Schofield, C. (2017). South China Sea: What are the legal implications of the Hague ruling against China? The Conversation.

6. Schofield, C., & Wang, D. K.-H. (2012). The Regime of Islands under UNCLOS: Implications for the South China Sea. In Maritime Energy Resources in Asia: Legal Regimes and Cooperations. The National Bureau of Asian Research.