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3/9/2014 7:19:54 PM

In the Spratlys, with the exception of China, all the disputant states, namely the Philippines, Vietnam, and Malaysia, agree that none of the islands in the Spratlys generates an EEZ. The largest island, Itu Aba, has a land area of only 37.7 hectares and a coastline of 1.0 KM facing Palawan, the largest Philippine province. Palawan has a land area of 1,489,655 hectares and a coastline of 650 KM facing Itu Aba. In short, Palawan’s coastline is 650 times longer, and its land area 39,513 times larger, than those of Itu Aba. The distance between Itu Aba and Palawan is 250 NM. Itu Aba is occupied by Taiwan, which the Philippines recognizes as part of China.

Under UNCLOS, to generate an EEZ an island must be capable of human habitation or economic life of its own. The soldiers stationed in Itu Aba cannot survive without periodic supplies from Taiwan. In the law of the sea jurisprudence, there are many islands bigger than Itu Aba that have been denied EEZs opposite a mainland or a much larger island. In all probability, an international tribunal will deny Itu Aba an EEZ.

Even assuming for the sake of argument that Itu Aba generates an EEZ, the UNCLOS rule of ensuring an “equitable solution” in maritime boundary delimitation prohibits any substantial disproportion in the allocation of EEZs if the length of the opposite coastlines are substantially unequal. The opposite coastline of Itu Aba is 1 KM while that of Palawan is 650 KM.

Equitable solution

Under law of the sea jurisprudence, the rule of “equitable solution” in opposite coastlines requires a reasonable degree of proportionality, or at least absence of excessive disproportionality, in the lengths of the coastlines and the areas of the adjacent EEZs. The best-case scenario for Itu Aba is a reduced EEZ of 50 NM facing Palawan, while Palawan will have a full EEZ of 200 NM facing Itu Aba. Itu Aba may, however, be given a longer or even a full EEZ facing the South China Sea away from Palawan.

Of course, if an arbitral tribunal rules that Itu Aba is capable of human habitation or economic life of its own and thus generates an EEZ, the tribunal will have no jurisdiction to proceed further without the consent of China. The arbitral tribunal cannot rule on the extent of such EEZ for that will involve a maritime boundary delimitation on overlapping EEZs – a dispute that China has excepted from compulsory arbitration.

In such eventuality, where an arbitral tribunal rules that Itu Aba generates an EEZ, the Philippines will then file a second case against China, this time for compulsory conciliation over the maritime boundary delimitation between China’s EEZ in Itu Aba and the Philippines’ EEZ in Palawan. Under UNCLOS, states that opt out of compulsory arbitration in maritime delimitation of sea boundaries cannot opt out of compulsory conciliation. While the report of the conciliation commission is non-binding, it will have persuasive authority as the equitable boundary delimitation under international law.

Interestingly, in China’s dispute with Japan over the Japanese-held Senkaku Islands in the East China Sea, China claims that the largest Senkaku island - Uotsurishima - with an area of 430 hectares, does not generate an EEZ but only a 12 NM territorial sea because, according to China, Uotsurishima cannot sustain human habitation of its own. In sharp contrast, China claims that Itu Aba, which has an area of only 37.7 hectares, and Scarborough Shoal, whose largest rock has an area of not more than 3 square meters, each generates a 200 NM EEZ, implying that both Itu Aba and Scarborough can sustain human habitation of their own. Uotsurishima is 11.4 times larger than Itu Aba and 860,000 times larger than the largest Scarborough rock.

This is not the only glaring inconsistency of China. China claims that the largest Japanese-held rock in Okinorotishima in the Philippine Sea, protruding about two feet above water at high tide with an area of less than 4 square meters, does not generate a 200 NM but only a 12 NM territorial sea because obviously Okinorotishima cannot sustain human habitation of its own. Yet China claims that Scarborough, which just as obviously cannot sustain human habitation of its own, generates a 200 NM EEZ. There is neither reason nor rhyme in China’s position.

China on shaky ground

China’s claim to a “historical right” to the waters enclosed within the 9-dashed lines in the South China Sea is utterly without basis under international law. This is the almost universal opinion of non-Chinese scholars on the law of the sea.

First, UNCLOS extinguished all historical rights of other states within the 200 NM EEZ of the adjacent coastal state. That is why this 200 NM zone is called “exclusive” – no state other than the adjacent coastal state can exploit economically its resources. Fishing rights that other states historically enjoyed within the EEZ of a coastal state automatically terminated upon the effectivity of UNCLOS.




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