Recently there have been many dangerous encounters between the Philippines and China in the waters around the Second Thomas Shoal. It is an offshore maritime feature located in the exclusive economic of the Philippines, less than 200 nautical miles from the Philippine Island of Palawan, and almost 600 nautical miles from China’s Hainan Island. A warship of the Philippines, the BRP Sierra Madre, was deliberately marooned on the shoal, and Manila treats it as a military outpost in its waters. Manila’s vessels frequently carry out mission of troop rotation and supplying daily necessities. China disagrees with such practice, claiming sovereignty over Second Thomas Shoal and accusing the Philippines of infringing on their territory and relevant waters.

The core dispute between Manila and Beijing over the Second Thomas Shoal is seemingly a territorial one, in which two opposing parties contest each other on the sovereignty of a maritime feature. However, judging the event from an international law perspective, such a territorial dispute may not exist. The mere claim of a party, without any legal basis, is not sufficient to prove the existence of a dispute. In fact, the law of the sea dictates that China has no right to claim sovereignty over Second Thomas Shoal and has no entitlement to any waters around the feature.

Maritime features in law of the sea

Under the law of the sea, offshore maritime features can be categorized into three groups namely islands, rocks, and low-tide elevations (LTEs). Both islands and rocks are high-tide features, which means they are visible at high tide. Furthermore, article 121 of the Law of the Sea Convention (UNCLOS) establishes conditions to distinguish an island from a rock. Any natural high-tide feature at sea that is either (1) able to support permanent life of a community or (2) capable of providing economic materials independently from the mainland for such community will be legally considered as an island. China’s Hainan Island is a clear example of a legal island. On the other hand, a maritime feature that lacks both conditions in article 121 can only be regarded as a rock. The United Kingdom’s Rockall is the example of this category. In addition, while islands can generate all maritime zones including a territorial sea, contiguous zone, exclusive economic zone, and continental shelf, rocks can only generate a 12nm territorial sea around them.

With respect to low-tide elevations (LTEs), according to article 13 of UNCLOS, they are maritime features that are submerged at high tide and only visible at low tide, and they do not generate any maritime zones around themselves.

One more important legal rule, which should not be overlooked, is that while states can claim their sovereignty over offshore rocks and islands, this law is not applicable to an LTE. If an LTE is located within maritime zones of a littoral state, such as territorial sea, exclusive economic zone, and continental shelf, it automatically belongs to that state. This legal consequence is vital when it comes to any dispute in the South China Sea.

Legal status of Second Thomas Shoal

In 2016, the Arbitral Tribunal established under UNCLOS, to which both the Philippines and China are parties, delivered its decision on the case concerning disputes in the South China Sea between the two countries. Several of the Award’s dictum are relevant to the event at hand.

Firstly, the Tribunal ruled that Second Thomas Shoal is an LTE, which is only visible at low tide and submerged at high tide (paragraph 383). This means that no country can claim sovereignty over the Shoal itself. More importantly, if its location is within the exclusive economic zone or continental shelf of either China or the Philippines, such country will enjoy sovereignty over it. The second significant point the Tribunal rendered was that Second Thomas Shoal is located within the exclusive economic zone of the Philippines (paragraph 399). Taking these two points together, the Tribunal ruled that China does not have any entitlement over any maritime zones around the Shoal (paragraph 632). As a result, such dictum confirmed the sovereignty of Philippines over Second Thomas Shoal and concluded that no maritime zones can be claimed from the Shoal by China. The water around the feature is the EEZ of the Philippines.

From a legal perspective, it is sensible to say that there is no territorial dispute over the Second Thomas Shoal between China and the Philippines according to the Award in the South China Sea case. The Philippines legally enjoys sovereignty over the Shoal.

China urged the United Kingdom to follow the decision of the International Court of Justice to respect the sovereignty of Mauritius over Chagos Island, perhaps it is also time for China to follow the South China Sea Award and respect the sovereignty of the Philippines over the Second Thomas Shoal.

About Pham Ngoc Minh Trang

Pham Ngoc Minh Trang is a Research Fellow at the Max Planck Foundation for International Peace and the Rule of Law.