On July 14, Taiwan’s ex-president Ma Ying-jeou held up a bottle of water during a press conference to prove a key point—that 400-meter-wide Itu Aba, the largest feature in the contested Spratly archipelago, is clearly not a rock. The water, sourced from the feature Taiwan calls Taiping Dao (Island), is proof that it is actually an island, he said.
The difference is worth billions of dollars to Taiwan, and could affect nations from Japan to France.
Ma was responding to an international tribunal’s July 12 ruling that Itu Aba is legally a “rock,” based on the United Nations Convention on the Law of the Sea (UNCLOS). In terms of maritime rights, that means Itu Aba generates a paltry 12-nautical-mile territorial sea around it. The far more valuable designation of ”island” produces an exclusive economic zone (EEZ) of 200 nautical miles. That would have given Taiwan and its industries coveted rights to fish, oil, natural gas, and other resources.
The classification, made by the Permanent Court of Arbitration in The Hague, is certainly a blow to Taiwanese pride and its potential GDP. But Taiwan is not alone. Many “islands” dotting the globe generate EEZs, and many of those are smaller than Itu Aba. Nations with such EEZs—among them the US, Japan, and France—will now find they are more vulnerable to legal challenges.
The July 12 ruling “adds great clarity to the law of the sea,” said Peter Dutton, a US Naval War College professor, in an interview with the US National Committee on US-China Relations on July 13. “There’s now a lot more certainty about what islands get resource zones and what don’t. This is an issue that I think all states are now going to have to pay careful attention to. This is not just about China or even about other countries in the South China Sea.”
Goats and a runway
The Spratly archipelago, about the size of Tunisia, is a scattered collection of islets, banks, reefs, and shoals. Each of the features is claimed by one nation or another, among them Vietnam, the Philippines, and most notably by China, which claims not just the Spratlys but most of the South China Sea, and has been frightening neighbors with its militarization in the area.
With its small size and lack of aggression, Taiwan isn’t frightening anyone, although because of a shared history with China it makes an equally sweeping claim to the sea. But it did have high hopes for Itu Aba. It put significant effort into making the islet more island-like, adding gardens, livestock, and buildings. It also put in a runway, which looks inordinately large on the backdrop of the islet.
In March, Taiwan arranged a group trip to the islet so that journalists and others could see for themselves just how island-like the place is. The visitors, once they emerged from a four-and-a-half-hour flight from Taipei aboard a military transport plane, learned that Taiwan had spent more than a $100 million upgrading the runway and port at Itu Aba.
They also learned Itu Aba has fresh water (otherwise nearly nonexistent in the Spratlys), is naturally formed, and supports livestock. By contrast, China is reportedly considering the use of floating nuclear reactors for water desalination to support the artificial islands it has built in the sea atop reefs.
The oil near Itu Aba
Here’s one reason Taiwan cares so much about the classification. An EEZ surrounding Itu Aba would have overlapped with the EEZ generated by the west coast of the Philippines’ Palawan Island, near which is Reed Bank, believed to hold significant reserves of oil and natural gas. To resolve the overlap Taipei and Manila would have likely worked out a maritime boundary, and Taiwan (assuming its sovereignty over Itu Aba held) would have solidified rights to some of the hydrocarbon riches.
After the ruling, it’s clear that under international law only the Philippines has sole extraction rights to those riches. What’s still unclear is whether Taiwan and China will respect the ruling. So far they have both strongly rejected it.
In the past Chinese forces have prevented the Philippines from exploring for oil at Reed Bank, which falls within China’s “nine-dash line.” That line, drawn on a map in the 1940s, is used by China (and Taiwan) to justify its claims to nearly the entire sea. But the tribunal invalidated that line, which is welcome news for not only the Philippines, but also for Vietnam, Malaysia, and Indonesia, which have also encountered China’s aggression in their EEZs because of it.
Rights for rocks
The tribunal did not rule on who has sovereignty over any of the contested features in the sea, as that was outside its jurisdiction. What it did rule on, under UNCLOS, is what’s legally an island versus a rock, among other maritime distinctions.
The convention states that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”
That passage, the tribunal noted (pdf, p. 239), was there for a reason.
[It] serves to disable tiny features from unfairly and inequitably generating enormous entitlements to maritime space that would serve not to benefit the local population, but to award a windfall to the (potentially distant) State to have maintained a claim to such a feature.
The tribunal studied the history of UNCLOS to find further clarity, and also observed (pdf, p. 237):
The purpose of the exclusive economic zone that emerges from the history of the Convention… was to extend the jurisdiction of States over the waters adjacent to their coasts and to preserve the resources of those waters for the benefit of the population of the coastal State.
If any nation is the “coastal State” in relation to Itu Aba, it’s the Philippines. The city of Puerto Princesa on its Palawan Island lies less than 490 km away, compared to the southern part of Taiwan at more than 1,500 km to the north.
Designating Itu Aba a “rock” will have ramifications far beyond the South China Sea, partly because it sets a precedent. The five judges who issued the ruling ”really shape the future of the law,” said Dutton. “These are five of the world’s most learned international law-of-the-sea scholars. They understand the law, they understand how it was developed.”
Three of the judges who worked on the case are also judges on the International Tribunal for the Law of the Sea (ITLOS), an intergovernmental organization established by UNCLOS to settle disputes arising out of the interpretation and application of the UN convention. Another has served ITLOS as president and judge and currently participates as an ad hoc judge.
One EEZ that’s more legally vulnerable after the ruling surrounds Okinotorishima, an uninhabited atoll claimed by Japan in the Philippine Sea. That EEZ includes rare metals in the seabed and possibly oil and gas. China, South Korea, and Taiwan have argued that Okinotorishima is at most a rock. Much of Okinotorishima’s dry “land” consists of three concrete structures. Japan would probably now lose a case challenging the EEZ.
Among US territories, the EEZs generated by Johnson Atoll (south of Hawaii), Jarvis Island (in the south Pacific), and Palmyra Atoll and Kingman Reef (in the northern Pacific) are now thrown into question. For France, ones around Clipperton Island (near Mexico), the Crozet Islands (between Africa and Antarctica), and parts of French Polynesia have less legal validity.
There are more examples, but none of them matters much to Taiwan. On July 20 a group of Taiwanese lawmakers, and separately a group of patriotic fishermen, traveled to Itu Aba to reassert their nation’s sovereignty, protest the ruling, and, probably, blow off some steam. But it didn’t change the ruling.
And as for that bottle Ma held up at the news conference? It soon emerged that the water in it was not really from Itu Aba—yet another claim struck down. Gulp.