In its Memorial and supplemental information submitted to the arbitral tribunal in The Republic of the Philippines v. The People’s Republic of China, the Philippines argues that all features in the Spratly archipelago are incapable of sustaining human habitation or economic life of their own. Even the largest feature in the Spratlys – Taiping Island (Itu Aba) – is a “rock”. Accordingly, Taiping Island cannot generate maritime entitlement to a 200 nautical miles, an Exclusive Economic Zone (EEZ), or a continental shelf under the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
Is Taiping Island an “island” or a “rock” under UNCLOS? Is Taiping Island capable of sustaining human habitation or economic life of its own? Is Taiping Island entitled the right to generate a 200 nm EEZ or a continental shelf? Is the Philippines’ argument well founded in fact and law? For the purpose of answering these questions, it is important to examine the facts about Taiping Island and discussing its legal status in accordance with Article 121of the UNCLOS.
Taiping Island, known in English as Itu Aba Island, in Chinese as Tàipíng Dǎo (literally: “peace island”), in Tagalog as Ligao, and in Vietnamese as Đảo Ba Bình, is the largest of the naturally occurring Spratly Islands in the South China Sea. The island is named in honor of a Nationalist Chinese Navy warship which sailed to the island in December 1946 after the Second World War. Under Article 2(f) of the 1951 San Francisco Treaty of Peace with Japan and Article 2 of the 1952 Treaty of Peace between the Republic of China and Japan, Japan renounced all right, title and claim to the Spratly Islands and to the Paracel Islands in the South China Sea. Since 1956, the island has continuously been administered by the Republic of China (Taiwan). Since February 1980, Taiping Island has been incorporated into the administration of Qijin District, Kaohsiung City of Taiwan.
The island has a long and narrow shape that is low and flat, approximately 1,290-meter long and 366-meter wide. The surface includes fine sand and coral reefs formed by weathering. Around the island are sandy beaches, with narrower 5-meter wide beaches on the south and north sides, on the east side 20 meters wide, and on the southwest side 50 meters wide. The island has diverse flora and fauna, and has historically been mined for phosphates to the point of depletion. Taiping’s waters may be suitable for fisheries and may hold potential oil and gas reserves. There has been no formal exploration or mining conducted thus far.
Taiping is the only island with fresh water in the Spratly archipelago. In 1992, a water catchment, reservoirs and other facilities were constructed. In 1993, two complete desalination machines were placed on the island, which operate for four hours each day, generating approximately 6,000 gallons of fresh water.
Prior to the use of solar power, facilities on the island were powered mainly by five 200 kW diesel generators; all fuel is shipped from the Taiwanese main island. Since December 2014, Taiping Island has been powered by a 40 kW photovoltaic power station that will generate an estimated 50MWh per year. The entire solar power system generates an estimated 189,492 kWh per year, saving an estimated 49,000 litres of diesel fuel per year. Taiwan’s policy goal is to develop Taiping Island as a low-carbon, environmentally sound island, to be used for peaceful purposes.
Taiping hosts a shelter for fishermen, a hospital, a post office, a Guanyin temple, weather stations, satellite telecommunications facilities, radar surveillance equipment and other communications equipment located on the island. There are five public telephones and internet connectivity. The southeast side of the island contains old Japanese constructions. The “Taiping Cultural Park” is located near an old pier that was damaged.
A 1,200-meter long, 30-meter wide runway was constructed on Taiping Island in late 2007. In February 2008, Taiwan’s then-president Chen Shui-bian landed on the island in an air force C-130 cargo plane to inaugurate the airstrip. There is also a large hard-standing area capable of accommodating two C-130 aircraft. The island has a helicopter platform that is not used frequently. There have been a number of plans to lengthen the runway.
Since there are many reefs around the island and the surrounding water is shallow, transportation and supply vessels are unable to dock on the island itself. Supplies are loaded on to rafts and taken to and from shore from an anchorage about 1.2 nm from the island—a difficult and time-consuming task due to the risk of large waves. Taiwan is currently undertaking several development project on the island, including building two new piers and access roads, which are to be completed by the end of 2015. Other projects include a lighthouse, navigation guidance and other auxiliary facilities, rain water drainage improvement, landing light repairs, and a refueling facility. In addition to national defense, humanitarian, and transportation purposes, the runway and piers will also be used in support of future economic development projects and activities.
Currently, a military supply ship services the island during a single voyage in April and November each year, anchoring for one day to deliver personnel and military supplies. Additionally, a civil merchantman arrives with general goods every 20 days. This ship is also used as a transport for stationed personnel and occasionally for scholars who conduct research on the island. In March 2008, then-presidential candidate Ma Ying-jeou proposed in his ocean policy to establish a marine peace park in Taiping Island. Since 2011, Taiping Island has become an attractive visiting site for college students, teachers and researcher who participate in a study camp organized by Taiwan’s Ministry of National Defense. The camp is intended to enhance awareness among young people of the importance of maritime strategy and security in the South China Sea.
At present, Taiping has a population of 200. This includes personnel from the Coast Guard Administration, soldiers from Navy and Air Force, and no civilians. Personnel are stationed on the island to safeguard sovereignty, national defense, security, and for environmental protection and law enforcement.
With these facts in hand, we can return to the application of Article to Taiping Island. Article 121 has following three paragraphs:
- An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
- Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
- Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
This article creates two categories of islands: (1) the islands that are capable of sustaining human habitation or economic life of their own, and therefore, just like other land territory, have a territorial sea, a contiguous zone, an EEZ, and a continental shelf; and (2) the islands that are incapable of sustaining human habitation or economic life of their own, and therefore are treated as “rocks.”
How should the article, in particular its third paragraph, be interpreted and applied to Taiping Island? According to Jon M. Van Dyke and Robert A. Brooks, Article 121 should be interpreted according to Article 31 of the 1969 Vienna Convention on the Law of Treaties, which provides for treaty interpretation in accordance with “good faith […] to be given to the terms of the treaty in their context and in the light of its object and purpose.” Because the purposes for establishing coastal EEZs cannot justify claims to EEZs around uninhabited islands situated far away from their coasts, Van Dyke and Brooks have argued that UNCLOS should note be applied to remote rocks or reefs to generate extended maritime zones. Accordingly, only if stable communities of people live on the island can islands generate maritime entitlements.
Van Dyke and Dale Bennett have argued that if a rock or reef cannot sustain human habitation permanently for at least 50 people, it cannot claim an EEZ or continental shelf. Other international legal scholars, including Northcut Ely, Arvid Pardo, Gilbert Gidel, and Robert D. Hodgson have expressed similar views. There is no doubt that Taiping Island is capable of sustaining human habitation permanently for more than 150 people.
Jonathan I. Charney has advocated a broader interpretation of Article 121(3). He argued that a rock is a kind of island, and that Article 121(3) would not be needed in the Convention if they were not. Article 121(3) uses “or” between “human habitation” and “economic life of their own,” and therefore it is only necessary to prove that a land feature can sustain either human habitation or economic activity of its own to be able to claim an EEZ or continental shelf.
After examining the travaux preparatoires of UNCLOS III, Charney reasoned that the habitation referred to in Article 121(3) need not be permanent in nature, and the economic activity need not be capable of sustaining a person throughout the year. Activity could include industry or exploration of the living or mineral resources in the territorial sea of the island or rock. Charney suggested that a feature is not subject to Article 121(3) if it has mineral resources such as oil or gas, harvestable fisheries, or is the location for a profitable business such as a casino, which could sustain an economy sufficient to support that activity through the purchase of necessities from external sources. He maintained that Article 121(3) should permits a finding of an economic life as long as the feature can generate revenues sufficient to purchase the missing necessities. Charney concluded that changes in circumstances might help rocksto obtain the legal status of islands and therefore have the right to generate EEZs and continental shelves.
Jonathan L. Hafetz has also argued that marine conservation constitutes an economic use within the meaning of Article 121(3), as conservation activities bring net economic benefits and sustainable development through the establishment of marine protected areas.
Although expert opinion on the number of Spratly features that qualify as islands under Article 121 of the UNCLOS varies, Mark J. Valencia, Jon M. Van Dyke, and Noel A. Ludwig suggest that between 25 and 35 of the 80-90 distinct features in the Spratly area are above water at high tide, and therefore they qualify as “islands” under Article 121 of the Convention. Taiping Island is the largest among these land features.
Robert Beckman and Clive H. Schofield suggest that because they all have vegetation, and in some cases roads and structures have been built on them, the following features are islands under UNCLOS: Taiping Island, Thitu Island, West York Island, Northeast Cay, Southwest Cay, Spratly Island, Namyit Island, Nansha(n) Island, Sand Cay, Loaita Island, Sin Cowe Island, and Amboyna Cay. In January 2010, the U.S. government released a South China Sea Map and Gazetteer, in which Taiping Island, along with other smaller features, are labelled as “islands.” More recently, BBC correspondent Bill Hayton wrote in his book that Taiping Island is “clearly able to support at least minimal human habitation.”
There are more writings of the highly qualified scholars in the field of the law of the sea that can be cited in support of the legal status of Taiping Island as an island under the UNCLOS. But the conclusion for this short essay is that in fact and law, there is no doubt that Taiping Island is capable of sustaining human habitation or that can have economic life of its own. Accordingly, this island is not a “rock” as referred to in paragraph 3 of Article 121 of the Convention. This means that Taiping Island is indeed an island and in accordance with Article 121(2), it can have EEZ and continental shelf.