By Ryan Scoville
One of the big takeaways from the South China Sea arbitration is that the high-tide features in the Spratly Islands are mere “rocks” under Article 121(3) of the UN Convention on the Law of the Sea because they “cannot sustain human habitation or economic life of their own.” This means that even the largest islands within the group lack an exclusive economic zone and a continental shelf. It also means that the separate question of sovereignty over the islands themselves is suddenly much less consequential than it might have been: whoever has title over the land now enjoys a diminished package of maritime rights that spatially extend no farther than a 12-nautical-mile territorial sea and an additional 12-nautical-mile contiguous zone.
This outcome is not only significant for the South China Sea; it also suggests something about the status of disputed features in the East China Sea: the Senkaku Islands. Simply put, the UNCLOS tribunal’s exposition and application of 121(3) strongly suggest that the Senkaku Islands are rocks. This is a setback for Japan, which has the superior claim to title, but might help to deescalate tensions between China and Japan by substantially reducing their legal incentives to contest each other’s claim.
I’ll start with 121(3)’s text: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Due to a lack of precedent and divergent commentary, there’s been quite a bit of uncertainty about the meaning of this language. The tribunal, however, resolved much of it in favor of treating close cases as rocks.
Particularly noteworthy for present purposes is the tribunal’s application of 121(3) to Itu Aba / Taiping Island—the largest and least rock-like of Spratlys. According to evidence cited in the ruling, Itu Aba has had fresh-water wells of sufficient quality and volume to support small groups of people; its vegetation has included, at one point or another, coconut, banana, plantain, and papaya trees, along with fields of palm, pineapple, cabbage, radish, and sugarcane; and workers there have at times operated small animal farms. The soil, moreover, contains sizable quantities of phosphate, and the surrounding waters have supported an abundance of sea life. Such conditions made it possible for fishermen to inhabit the island on a temporary basis for “comparatively long periods of time.” In addition, Japanese companies extracted economic benefits from Itu Aba for over twenty years starting in 1917. One company employed 600 workers to mine nearly 30,000 tons of guano, and built dorms, warehouses, a clinic, an analysis room, a weather station, a jetty, and mining tracks on the island to support its activities. Another hired roughly 40 workers to use the island as a base of operations for fishing in the surrounding waters. A publication from 1941 reported that still two other companies had a combined total of 130 personnel residing there “continuously.”
Picture: U.S. Navy photo [Public domain], via Wikimedia Commons