Tag Archives: South China Sea

South China Sea Legal Differences Redux

After my original post, I learned through comments and Twitter discussions that I got the Philippines position a little bit wrong and that the legality is even more nuanced. So the Philippines does claim the islands as sovereign territory, but claims them as a “rock.” A “rock” is different than an “island” in the UN Law of the Sea – a distinction I would have not thought of. Islands must have an “economic life of their own” if they have no permanent human population. Unlike an island, rocks get no extension of Economic Exclusion Zones (EEZ). Though Taylor Fravel says that if the rock still peaks over the water during high tide, they can get a 12 mile radius territorial sea.

What makes all of this interesting is that, technically, a court could rule that the “rocks” are Chinese but most the water around it belong to the Philippines. What it really does, though, is significantly weaken China’s case for the South China Sea claims. Even if they were to “belong” to China, their economic rights via the EEZ wouldn’t be nearly as large as they’re claiming because most of the shoals, sandbars, and reefs they claim would just be “rocks.”

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Legal Differences Between Claims to the South China Sea

[Please see a revised version of this here]

I commented to a friend a few days ago that there was something “natural” looking to the Philippines territorial claims map, while the Chinese map looked distinctly phallic – it just jutted out into the ocean with seemingly no other logic than “mine!” I was digging around Wikipedia trying to understand the history of the different claims and came to an interesting realization. There’s a reason for that: the Philippines isn’t claiming more than what what most would already recognize as the Philippines.

The legal basis for each country’s claim is different, which is why the maps look so different. The Chinese are claiming Scarborough Shoal (and the Spratley’s, and the Paracels, and every other uninhabited rock and reef in the South China Sea) as integral parts of China’s territory. They’re as Chinese as the neighborhoods inside third ring of Beijing. Each island then has a 12 mile territorial claim around it and an Economic Exclusion Zone extending up to 200km outwards, but usually stopping at the halfway point between it and another country’s territory.

The Philippines is making a much more subtle claim. They’re claiming the Shoal and the Spratley’s they fall under Philippine jurisdiction rather than being a “part” of the Philippines, per se (though it does seem they’ve made that claim at times). They’re arguing they have the same legal rights to the shoals as they would an offshore oil field. They claim this under terra nullius – that the islands don’t belong to anybody. They are, after all, just some rocks standing above the waves. So while China is claiming “mine!”, the Philippines claim is more nuanced “not yours” to her neighbors. They’re nobody’s rocks but they’re more ours than yours. They’re also not claiming anything more specific than open ocean 200 miles out from their coast.

In so much as the shoal is a point of interest it is a Chinese interest. It’s just part of the sea to the Philippines. If the Philippines were claiming these as territories like the Chinese were, then the EEZ would jet out from each of these islands another 200 miles and their territorial waters would also cover much of the South China Sea, much as the Chinese map does.

A big difference is that an EEZ is still “international waters” in a lot of ways. Ships, even military ships, are allowed to sail through it without permission. A countries claims would seem to end at the right to use resources from the area. Think of it this way: if some enemy fleet were sailing towards your country you wouldn’t have the right to sink it until they crossed the twelve mile line. Thus, China’s claim of the shoal being territorial waters make claims of Filipino transgressions technically more provocative – on par with enemy ships sailing around inside the Pearl River Delta. Even if the Philippines did have a powerful military to counter Chinese claims, the Chinese sending a fleet to the area is a lot less provocative for them than the other way around.


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