Art. 121 of the UN Convention of regulations of the Sea

Discuss the interpretation of Art work. 121 of the UN Convention of the Law of the ocean after the decision in PCA-Case N 2013-19, Philippines vs China. Are there standard conclusions to be attracted which can help in other similar disputes surrounding the world?

Siderakos Panourgias

Introduction

On the 22nd of January 2013, the Republic of Philippines commenced, under Annex VII to the US Convention on the Law of the Sea (UNCLOS), an arbitration technique from the People's Republic of China. The dispute concerned the South China Sea and is principally known as the South China Sea Arbitration (PCA circumstance quantity 2013-19). The arbitration was made before the Permanent Judge of Arbitration (PCA). The Republic of Philippines claimed the violation of the UNCLOS Convention so long as historic rights, the foundation of maritime entitlements, the position of certain maritime features in the South China Sea were worried and also doubted the lawfulness of specific activities by the Republic of China in the precise area. In particular, China's rights were disputed over specific islands (island formations within the "nine-dash line"). However, China rejected to accept the arbitration and didn't participate in the whole method as it didn't identify the jurisdiction of the PCA in the specific case.

Area of Interest

The South China Sea is a sea in the western world Pacific Ocean and covers an approximate portion of 3. 5 million km². From north, it is surrounded by the mainland of China, Taiwan and Vietnam, from western world there exists Philippines, Malaysia and Sumatra and from south there is Borneo. Within this sea there are island and reef formations, that the main are the Paracel Islands, the Spratly Islands, Pratas, the Natuna Islands and Scarborough Shoal (fig. 1). The wider area of the South China Sea is very unique and interesting because yearly, approximately 1 / 3 of the global maritime traffic goes through these waters. The angling stocks of the area are massive. Furthermore, Japan and South Korea rely mainly on the South China Sea for their fuel and material supply and their trading, too. Additionally it is believed by experts that within the seabed, it contains huge reserves of gas and oil. In addition, the South China Sea is the area which is made up of highly appreciable, reef ecosystems of high biodiversity importance. All the factors mentioned previously have obviously changed the South China Sea into a very conflicting area with essential, monetary and geostrategic benefits for decades now.

Main Historical Background

The standard dispute in the South China Sea has begun many years in the past, from the 10 years of 1940's after the WWII. More specific, in 1947 the Republic of China (Taiwan) publicized a map of the South China Sea with an eleven-dash lines area, including many island formations that said to be under its sovereignty. Two of the dashes at the Gulf of Tonkin were later removed in 1949, when the Communist Party of China took over the mainland of China, forming the famous "nine-dash line area" in the South China Sea (Wu Shicun, 2013).

In 1951, Japan renounced all claims to the Spartly Islands of the Republic of China (Taiwan). As a result, the Chinese government proceeded to a particular declaration, reestablishing China's sovereignty in the wider area of the South China Sea, including the Spratly Islands.

The Philippines, from other side, based mostly their say for the sovereignty within the Spartly Islands to the physical proximity.

Over the years, many situations escalated the dispute. Among these is at 1956 when the President of the Philippines, Tomas Cloma and several his people, resolved on the islands, even stole the national flag of China from the Taiping Island, and announced the hawaiian islands as a protectorate of the Philippines with the name of "Freedomland". A couple of months later he delivered China's flag to the Chinese language embassy in Manila and wrote a notice apologizing and proclaiming that he'd not check out any similar actions in the foreseeable future. In the 1970s, some countries commenced to invade and occupy islands and reefs in the Spratly Islands.

The People's Republic of China (PRC) from its side said that it was eligible for the Paracel and Spratly Islands because these were seen as integral elements of the Ming dynasty. The Republic of China (Taiwan) needed control of the Taiping Island (the largest one in the island development) since 1946.

Vietnam claimed that the islands have belonged to it since the 17th century, using historical documents of ownership as facts. Hanoi began to occupy the westernmost islands during this time period. In the first 1970s, Malaysia joined the dispute by claiming the islands nearest to it. Brunei also prolonged its exclusive monetary zone and said Louisa Reef.

Discussion

The dispute, as mentioned in the intro, begun in 2013 when Philippines started a tribunal arbitration with the PRC, complaining about the legality of specific actions in the South China Sea, the legal basis of maritime rights and entitlements in the specific region and the status of certain geographic features. The basis, which this arbitration and all its results must stand, is the United Nations Convention on regulations of the Sea (UNCLOS).

Philippines accused PRC that the historical rights within the Spratly Islands had no serious information, it was in charge of artificial-constructed islands that ruined the natural environment and also for the over-exploitation of the South China Sea from Chinese language fishermen under its authorization and tolerance.

UNCLOS

The UNCLOS is a convention that was agreed upon in 1982. Both Philippines and the PRC are people from it, having it ratified in May 1984 and June 1996, respectively. The standard and essential goal of this Convention was the desire of the Areas Parties "to stay, in a heart of shared understanding and cooperation, all issues relating to the law of the ocean and alert to the historic need for this Convention as an important contribution to the maintenance of tranquility, justice and progress for all peoples of the world" (UNCLOS).

The Convention was ratified by the amount of 168 Claims. In its articles, a very wide selection of issues are being analyzed. A small listing of them includes territorial and inside waters, transit and innocent passage of ships, to Exclusive Economic Area (EEZ), Continental Shelf and sovereignty on resources. More specifically, it provides the coastal Expresses the framework in order to determine the areas and their limits, in which they exercise their nationwide jurisdiction. Additionally, in the Convention, a particular organization is authorized in order to resolve peacefully any dispute that will come up between States in the future. This business is the Permanent Court of Arbitration (PCA).

The PCA was the organization that Philippines asked for its tribunal arbitration in the case of the South China Sea, using the Annex VII of the Convention. Probably the most relevant, with our case, zones are the Exclusive Economic Area (EEZ), the Continental Shelf, the High Seas and the Area.

However, the PCA was not responsible and of course could not talk about the sovereignty over land territories, specifically over the Spratly Islands or the Scarborough Shoal. A subject that was clearly explained in the South China Sea Arbitration Prize of 12 July 2016.

Article 121 Interpretation

In this statement, this article that has more importance is this article 121. Based on the UNCLOS, this article 121 state governments that:

" 1. An island is a by natural means formed part of land, surrounded by normal water, which is above drinking water at high tide.

2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive monetary zone and the continental shelf of any island are driven in accordance with the provisions of the Convention relevant to other land territory.

3. Rocks which cannot maintain human habitation or monetary life of their own shall have no exclusive economic area or continental shelf. "

The three paragraphs of the article 121 mentioned just as in the Convention above, play a significant role in the layout of the jurisdictions and sovereignties all over the world, as long as there are waters and islands in them. Firstly, paragraph 1 expresses with great clearance the definition of the island. A "naturally made section of land, surrounded by water" automatically excludes exactly what is artificially created. No artificial-constructed islands can be considered as natural. As a result, artificial islands cannot have any maritime areas around them (contiguous area, EEZ, continental shelf etc. ). The one zone they can legitimately have is a security zone that cannot stretch to more than 500 meters from its exterior corners. The purposes of the safety area are completely for maritime safe practices reasons. In addition, if an unnatural island can be officially became a maritime danger in line with the international maritime protection standards due to abandoning or misuse, it will be completely removed on its total. (unclos article 60)

Secondly, in paragraph 2 it is obviously mentioned that natural-formed islands have all the legal maritime areas around them as all other land territories do. A very strong assertion, that designates many privileges but also commitments to the sovereign State so long as the maritime zones are concerned and almost all their characteristics.

Thirdly, paragraph 3 offers the most crucial statement from the whole article. That is that any small island (rock) with no human being habitation or financial life can haven't any EEZ. A affirmation that is both clear and logical, because having a small island with an engine oil platform, a internet casino or a military base onto it, does not automatically make it a real island with a special Economic Area. The human habitation cannot be supported by its powers and the monetary life can't be developed on the communal basis. If an undeniable fact like this could be legal, that would extend the jurisdiction and sovereignty of the using State 200 nautical miles even further in to the sea, interfering with other coastal States' protection under the law and jurisdictions.

China's interpretation over Article 121

It was unavoidable that China's interpretation over the article 121 would increase many objections from its side. The most important subject for China, it referred to many times officially, was japan Oki-no-Tori-shima rock. "Oki-no-Tori-shima can be an atoll, situated in the european Pacific Sea between Okinawa and the Northern Mariana Islands, which only two small portions normally protrude above normal water at high tide. "(Award)

Under that explanation, and following straight the directions of the Article 121 (3), China rejected the living of continental shelf of the Oki-no-Tori-shima rock as it cannot sustain human habitation or monetary life on its own. A rock that happens to be under Japanese sovereignty and jurisdiction. A general popularity of the non-existence of the continental shelf of the existing rock, would automatically decrease the Japanese privileges in the specific area by 2 hundred nautical miles. An enormous area with benefits, both sociable and economic, as it influences both the local life of men and women fishing in this area but also the exploitation of possible deposits in the seabed. A possibility, reinforced by many researchers and theories, that could easily bring in large numbers of revenue to the owning Talk about.

Furthermore, China says sovereignty both on the Spratly Islands and the Scarborough Shoal. Its activities imply that China considers Scarborough Shoal (Huangyan Dao in Chinese language) as a completely entitled island, effortlessly formed and with all the following maritime areas around it. Such activities (e. g. the banning of angling north of 12 North latitude and the objection in petroleum research and concessions in the region) specifically implies China's thoughts and things to consider above the Scarborough Island in the wider area and its own protection under the law and jurisdictions on it.

Tribunal's decisions

The CPA come to adjudication, mainly rejecting any statements of China in the South China Sea by "historic title". Furthermore, relating to Article 121, the CPA didn't acknowledge the Mischief Reef and Second Thomas Shoal as obviously developed islands. Therefore, these low-tide elevations cannot create maritime areas around them. Also, it announced that Subi Reef, Gaven Reef (South), Hughes Reef, Scarborough Shoal, Gaven Reef (North), McKennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef aren't islands that can sustain individual habitation or economical life, so they don't possess the right of any maritime area. Finally, it declared that the Mischief Reef and Second Thomas Shoal are within the exclusive financial zone and continental shelf of the Philippines.

In standard, as seen above, the CPA didn't identify any sovereign rights or jurisdictions of China related to the "nine-dash line" area, proclaiming that this area is completely contrary to the UNCLOS and has no legality. It also explained the breach of China's responsibilities amongst environmental coverage of the region and its own biodiversity, and also illegal elimination of traditional fishing in the area from the anglers of the State of Philippines.

Similar disputes throughout the world

As identified above, from the dispute of the South China Sea between your PRC and the Philippines many basic conclusions were made. These conclusions can be easily found in similar disputes across the world, however proper attention must be paid as each situation has its unique variables.

Such areas a wide range of; two of the most famous are the Aegean Sea and the Caribbean Sea. Inside the Aegean Sea, Greece and Turkey have disputes which may have started many years before. These disputes include sovereign protection under the law and jurisdictions over islands in the Aegean and the right of Search And Recovery (SAR) operations in its waters. In the Caribbean Sea there is a dispute across the neighboring Areas about the environmental protection of the region and the overall maritime safeness.

Firstly, the key final result from the South China Sea that is very useful to focus on is the fact an adjudication from which one of the two States will not take part in, is considered to be non suitable. From the moment that China will not recognize the prize of the PCA and its own jurisdiction, no real facts and results can be expected in your community rather than continuous discord with unexpected incidents or accidents. So, almost in every similar case about the world, it is nearly for certain that there will never be considered a unanimous arrangement from all the attributes of the dispute to be able to attain a peaceful and cooperative agreement. For example, in the Aegean Sea, Turkey has been declaring (mainly under the presidency of Recep Tayyip ErdoÄŸan) that lots of islands are Turkish. The Greek administration obviously does not accept that, referring to the UNCLOS and the Treaty of Lausanne, professing that all Turkey's promises are illegal. Because of this, Turkey has never accepted to go over within the conventions and treaties mentioned previously, as it will serve its own aims and rights in the region of the Aegean Sea.

Secondly, another main bottom line is the actual fact that no unnatural islands can be viewed as to be natural. Therefore, they can not have any maritime areas around them. This forbids the to any State that builds an man-made island to lay claim any jurisdiction or sovereign right around the waters of the island, which could possibly collide to another neighboring State's continental shelf from its mainland or a natural island with individuals habitation and developed economical life onto it.

Finally, the existence of a "rock" just appearing over the surface of the sea will not constitute a land, with the capacity of having continental shelf or exclusive monetary zone. A realization that can be very helpful in many disputes round the world and may force many States to reconsider their continental cabinets and EEZs.

Conclusion

In conclusion, the truth of the Philippines from the People's Republic of China within the South China Sea is very interesting and its award and conclusions are extremely useful for the whole world and the world of the international maritime legislations. The articles of the UNCLOS Convention were totally followed by the CPA, reestablishing Philippines' protection under the law and jurisdictions on specific parts of the wider area. Moreover, it acknowledged the illegal activities of China in the area, concerning the coverage of the marine environment and the actions against the fishermen of other neighboring States. Although these conclusions can be utilized for the interpretation and analysis of other similar instances and disputes across the world (e. g. the Aegean Sea, the Caribbean Sea), a great many other factors must be studied into consideration for the ultimate outcome. Factors including the general geographic position of the region, the already authorized Conventions or Treaties of the conflicting Expresses and the geostrategic need for the area, can completely change the final end result of the dispute. In addition, special organizations must be produced in order to resolve similar disputes. Organizations that'll be globally accepted, with reps from all the binding Areas.

It must never be neglected that a dispute over a location with great gains and benefits, can certainly finish up in a combat clash numerous casualties from both factors. An undesirable final result that does not promote peace on the globe between Claims, one of the very most fundamental rules of the UNCLOS.

 

Figure 1: Map of the South China Sea, including the nine-dash collection area

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