feature: ‘islands’ that can support human habitation or economic life; ‘rocks’ (including sandbanks and reefs above water at high tide) that cannot support either; and ‘low-tide elevations’ which, as the name suggests, are only dry at low tide. Although the exact definitions of ‘human habitation’ and ‘economic life’ were left unspecified,each type of sea feature was endowed with certain inalienable rights. Islands are regarded as ‘land’ and generate both a 12-nautical-mile territorial sea and a 200-nautical-mile EEZ. Rocks generate a 12-nautical-mile territorial sea, but no EEZ. Low-tide elevations generate nothing at all unless they are within 12 nautical miles of a piece of land or a rock, in which case they can be used as base-points from which the territorial sea and EEZ can be measured. As far as maritime resources are concerned, the difference between an island and a rock is vast. A rock generates a potential territorial sea of just 452 square nautical miles (π × 12 × 12). An island generates the same territorial waters but also a potential EEZ of at least 125,600 square nautical miles (π × 200 × 200).
On 22 January 2013 the Philippine government tried to change the terms of the South China Sea disputes by relegating traditional arguments about ‘historic rights’ over territory in favour of new arguments based upon UNCLOS. Rather than hold emotive debates about claims to wide areas of water, it tried to focus them onto designated pieces of sea based on distances from specific pieces of land. Its 20-page submission to the Permanent Court of Arbitration (PCA) in The Hague made clear that the Philippines wasn't seeking a ruling on the historical claims to the islands, or on any maritime boundaries, but purely on which features constituted islands and rocks and could thus be classed as ‘territory’, and on what kind of zones could be legitimately drawn from them. 10 The Manila government was hoping the PCA would rule that none of the features occupied by the People's Republic of China were islands capable of sustaining human habitation or economic life and were therefore unable to generate any EEZ whatsoever.
By forcing arbitration on these issues, the Philippines was explicitly seeking to have any historical claim to all the waters inside the ‘U-shaped line’ – based on a Chinese interpretation of the traditional model of international law – ruled invalid. Regardless of which country owned each rock, rights over the sea would be limited to – at best – a 12-nautical-mile radius around each feature. This would allow the Philippines to develop the oil and fish the seas within its EEZ, provided the resources lay outside the 12-nautical-mile potential territorial sea of each Chinese-occupied feature. A different court could make a ruling about ownership at a later date.
By the time the PRC joined the party in the Spratlys in the late 1980s, the best tables had been taken: only the cheap seats were left. Five of the eight PRC-occupied features are, at best, low-tide elevations (Mischief, Kennan, Subi, Gaven North and Gaven South Reefs). The remaining three, the Philippines case argues, are, at best, rocks that only generate a 12-nautical-mile territorial sea and no EEZ. UNCLOS is clear: it doesn't matter how large a fortress you build on a low-tide elevation; if the natural feature underneath would be under water at high tide then it doesn't generate any maritime territory. The same is true of all the features occupied by Malaysia (including Swallow Reef), most of those controlled by Vietnam and at least three of the Philippines’ possessions. Constructed on low-tide elevations or reefs, they don't count as either islands or even rocks under UNCLOS.
The Philippines, Vietnam and the Republic of China (Taiwan) do control some features that might be classified as islands and therefore entitled to an EEZ. But to prove this to a tribunal they would need to establish that the islands
On 22 January 2013 the Philippine government tried to change the terms of the South China Sea disputes by relegating traditional arguments about ‘historic rights’ over territory in favour of new arguments based upon UNCLOS. Rather than hold emotive debates about claims to wide areas of water, it tried to focus them onto designated pieces of sea based on distances from specific pieces of land. Its 20-page submission to the Permanent Court of Arbitration (PCA) in The Hague made clear that the Philippines wasn't seeking a ruling on the historical claims to the islands, or on any maritime boundaries, but purely on which features constituted islands and rocks and could thus be classed as ‘territory’, and on what kind of zones could be legitimately drawn from them. 10 The Manila government was hoping the PCA would rule that none of the features occupied by the People's Republic of China were islands capable of sustaining human habitation or economic life and were therefore unable to generate any EEZ whatsoever.
By forcing arbitration on these issues, the Philippines was explicitly seeking to have any historical claim to all the waters inside the ‘U-shaped line’ – based on a Chinese interpretation of the traditional model of international law – ruled invalid. Regardless of which country owned each rock, rights over the sea would be limited to – at best – a 12-nautical-mile radius around each feature. This would allow the Philippines to develop the oil and fish the seas within its EEZ, provided the resources lay outside the 12-nautical-mile potential territorial sea of each Chinese-occupied feature. A different court could make a ruling about ownership at a later date.
By the time the PRC joined the party in the Spratlys in the late 1980s, the best tables had been taken: only the cheap seats were left. Five of the eight PRC-occupied features are, at best, low-tide elevations (Mischief, Kennan, Subi, Gaven North and Gaven South Reefs). The remaining three, the Philippines case argues, are, at best, rocks that only generate a 12-nautical-mile territorial sea and no EEZ. UNCLOS is clear: it doesn't matter how large a fortress you build on a low-tide elevation; if the natural feature underneath would be under water at high tide then it doesn't generate any maritime territory. The same is true of all the features occupied by Malaysia (including Swallow Reef), most of those controlled by Vietnam and at least three of the Philippines’ possessions. Constructed on low-tide elevations or reefs, they don't count as either islands or even rocks under UNCLOS.
The Philippines, Vietnam and the Republic of China (Taiwan) do control some features that might be classified as islands and therefore entitled to an EEZ. But to prove this to a tribunal they would need to establish that the islands
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