May I please have the comments by the supporters of China re: territorial claims in the Spratlys - South China Sea. TV yesterday reported that the Philippines' claim is considered legally justified by the UN Court of Justice. How would China react to this if this is a confirmed report? Thanks.
Considering the case supposed to start like next month with a verdict not in until next year, I will take that claim of legally justified with a grain of salt.
Broadly speaking the Philippines will try two arguments, none of which relate to sovereignty per se as that is outside the courts jurisdiction. They will argue on the extent of EEZ under UNCLOS. These arguments are
1. China must define its claims on the 9DL so we can debate this.
This doesn't seem unreasonably, however China practices strategic ambiguity and any case that runs into issues is referred to the UNSC where China could just veto it.
2. Itu Aba is a "rock."
Itu Aba is the largest natural island in the Spratly chain, and is garrisoned by the ROC (Taiwan) with population from sources saying 200-600. However since the US, Vietnam, and the Philippines all recognise the one China principle, it follows that they recognise anything owned by Taiwan is by extension China's. They can of course dispute ownership, although I like to the Philippines try to explain why they have ownership of an island they never cared about until 1978 when the ROC has garrisoned it since 1946, and continuously since the 1950s to this day. So they won't even argue ownership, they will argue EEZs.
Essentially rocks (structures above water at high tide but cannot sustain economic activity) cannot generate an EEZ but inhabited islands can. Islands of course are structures above high tide which can sustain economic activity and a population. So an uninhabited island behaves like a rock under UNCLOS. Rocks can only generate 12 nm territorial seas.
Now lets get the environmental angle out the way. While there are provisions that about environmental protection in UNCLOS but pretty much everyone has broke them. Plus people are protesting China's reclamations mainly on territorial or EEZ grounds, not on environmental grounds, and if environmental grounds were your best argument, maybe that implies your territorial arguments are bad.
Strictly speaking, you can reclaim on a rock you own. Like Japan did in Okinotorishima.
So structures which count as rocks (ie above water at high tide) include Scarborough shoal, Johnson reef , Cuarteron reef and Fiery Cross reef. So whoever owns these are within their rights to reclaim it. Of course ownership is disputed, but China's pretty much got these in the bag.
You cannot reclaim on a structure which is below water at high tide, unless you a) own it and b) if it falls within you EEZ.
The only way to claim a below water structure is if it falls within the 12 nm territorial sea generated by another one of your possessions which is above water at high tide. None of China's targets fall within this criteria. So lets go to option B.
Do any of the low tide elevations ie Mischief Reef, Kennan Reef ( Hughes reef) , Gaven Reef and Subi Reef fall within China's EEZ? The answer is, if China holds Itu Aba, then yes it does and its legal.
Article 56 of UNCLOS states that a nation can create an artificial island in its EEZ, although it will be subjected to environmental concerns (which every other state broke as well, but I digress). Mischief Reef is the furthest away from Itu Aba at around 74 - 75 nm. EEZs can be generated 200 nm.
Now you might ask, what about the Philippines own EEZ generated by Palawan? When two EEZs overlap, its negotiated between the states, but by convention we draw the line about halfway.The distance between Itu Aba and the Philippines is around 219 nm, so the halfway point is around 109.5 nm. So even Mischief Reef easily falls within that range.
When the Philippines own media refers to "rock" in inverted commas, you know something stinks about that argument. Essentially they will argue that the largest natural feature of the Spratly ISLANDS is really a rock and not an island.