NEWPORT, R.I. – Professor James Kraska
delivered a presentation on the interpretation of the regime of islands at the International Workshop on Securing Maritime Peace in East Asia: The Role of International Law, which was conducted at the University of Central Lancashire Law School in Preston, United Kingdom, April 23-24.
The International Workshop was jointly organized by the Lancashire Law School, the Uppsala East Asian Peace Program in Sweden and the National Institute for South China Sea Studies in Hainan, China. Approximately 20 international law and international relations scholars from China, Sweden, Canada, and other nations participated in the Workshop.
Kraska's remarks focused on paragraph three in Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS), which states, "Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf."
Kraska suggested that application of the Regime of Islands in Article 121(3) would eliminate many of the geo-political disputes fomenting in the South China Sea, since most of the insular features are "rocks" rather than "islands," and thus do not generate an exclusive economic zone or continental shelf.
Kraska's presentation focused on the many cases relevant to analysis of Article 121, including the 2009 Maritime Delimitation in the Black Sea at the International Court of Justice. The case addressed the meaning of article 121(3) in relation to Ukraine's tiny Serpent's (Snake) Island in the Black Sea. The Court declined to provide a definitive definition of the meaning of the words, "[r]ocks which cannot sustain human habitation or economic life of their own."
Serpents Island is 0.17 square kilometers in land area, or 42 acres or 17 hectares, and located about 20 nautical miles east of the Danube River Delta that forms the border between Ukraine and Romania. There is no natural fresh water on the island, and it has never been inhabited, even though it has had a lighthouse on it since the 1800s.
Recent exploration suggests recoverable oil and natural gas are located beneath the seabed surrounding the island.
The Court stated Serpent's Island was entitled to a 12 nautical mile territorial sea, but that it had no other impact on or relevance to the maritime delimitation between the two countries.
If the rule applied in the Serpent's Island Case were adhered to in the South China Sea, then most of the features and rocks under dispute would generate at most a 12 nautical mile territorial sea, rather than a 200 nautical mile EEZ. Consequently, Kraska suggested that most of the entire South China Sea constitutes the normal continental EEZ of Vietnam and the Philippines.
The biggest loser in a plain application of the regime of islands in UNCLOS is China. The greatest problem with the analysis is not legal, but rather political, since the result does not accommodate the reality of China's power and its focused commitment to extract some benefit from vacuous and historically ambiguous claims over the area.