Author: Mark E. Rosen
The Diplomat, 18 July 2016
The decision regarding Itu Aba allows China to challenge excessive EEZs claimed by Japan, the U.S., France, and others.
There are a great many legal nuggets that can be mined from the 501 page decision released on July 12, 2016 by the Permanent Court of Arbitration (PCA) panel. However, perhaps the most far reaching aspect of the ruling was the Tribunal’s holding that no features in the Spratly Island group are “islands” within the meaning of Article 121 of UNCLOS.
The practical import is that the claims by Vietnam, Taiwan, and the Philippines to 200 nautical mile zones around the currently occupied “islands” of Itu Aba (Taiwan), Spratly (Vietnam) and Thitu/Pagasa (Philippines) are null and void. As “rocks,” these features only get a 12 nm territorial sea. Clearly influenced by the persuasive argument by the Philippines (para 421) that the dispute over the Spratly Islands would be forever “frozen” if the features were determined to be “fully entitled islands,” the panel concluded that “abstract tests” that a feature could meet the UNCLOS definition of an island are trumped by reliable evidence that a feature has the continuous capacity to support human habitation, and economic life, without outside support.
The vast majority of press reporting since the Tribunal issued its ruling has been focused on aggressive posturing by Chinese officials who decry the illegitimacy of the decision and the prospect Beijing will have to up the ante to register its dissent with the holding. Reports have intensified that China is actively considering a South China Sea Air Defense Interception Zone (ADIZ) and is a continuing to block Philippine access to the waters near Scarborough Shoals. There are also reports that China is considering the deployment of floating nuclear power plants to the South China Sea to provide power to offshore platforms. And there have been multiple press reports that the PCA was essentially bribed to reach a decision in the Philippines’ favor because the court costs were paid by the Philippine government. Finally, Chinese Premier Li Keqiang’s warning to Japanese Prime Minister Shinzo Abe that since Japan is not directly involved in the South China Sea issue it should “exercise caution in its own words and deeds, and stop hyping up and interfering” suggests that careful analysis and reflection is not the order of the day in Beijing.
China has reason to bristle that its historic arguments concerning the nine-dash line were rejected because it undercuts the narrative that Chinese leaders have told both their citizens and others in Southeast Asia: that China’s sovereignty extends to nearly all of the South China Sea as a historic entitlement. China also has good reason to have bruised feelings over the arbitral tribunal’s especially blunt description of the ecocide that China has inflicted on formerly pristine areas of the South China Sea as a result of its island building activities. China’s official acquiescence to outrageously illegal fishing practices and reef destruction by Chinese fisherman was another area which landed the PRC much criticism.
But China’s protest of the Itu Aba ruling doesn’t seem to make much sense since that aspect of the ruling favors their own interests in two different disputes which it currently has with Japan. The new legal benchmark for what constitutes an island actually serves China’s global interests.
Read the remainder of the article at http://thediplomat.com/2016/07/china-has-much-to-gain-from-the-south-china-sea-ruling/
PCA Press Release: PCA Case No. 2013-19 – The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China)
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