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states and occupation by those states of
various Spratly features.
For example, the Vietnamese occupy
approximately 29 islands and reefs and
have built a harbour on one. The Taiwanese
have an airstrip on the largest of the islands
Nonetheless, most of the attention
of late has been on China’s sand pouring
activities on Johnston Reef. It seems
likely that China will use this reclaimed
and artificial island/reef (and others) to
establish military bases in the South
It is important to note that, under
LoSC ships of all nations retain the right of
‘innocent passage’ through the territorial
waters of other states. It was for this reason,
among others, that in late October 2015,
the United States warship USS Lasson
made a point of sailing through disputed
‘ territorial waters’ claimed by China.
China has recently made it very clear
that it did not think that was a good idea.
Much of the Spratly Islands is (on one
analysis) within the EEZ of the Philippines;
in 2013 the Philippines commenced an
arbitration in accordance with the dispute
resolution provisions of the LoSC in
relation to its claims. China, a party to the
LoSC since 1996, has refused to participate
in that arbitration.
One of the objectives of an international
legal order, given that there exists in the
international system no sovereign (the
system is essentially anarchic), is the
creation and maintenance of rules based
interactions that limit the scope for dispute
and hence violence.
It is not clear yet whether the
competing interests at play in the South
China Sea will be resolved using available
legal (and diplomatic) mechanisms or
whether these matters will be resolved
in some other way. What is clear is that
these issues are not going to go away and
that the Chinese like to play a long game.
The Arctic is another resource rich area
with multiple states (Russian, Norway,
Greenland/Denmark, Iceland, United
States) competing for resources.
As well as giving the coastal state
the rights it enjoys in its EEZ, the LoSC
gave coastal states the right to exploit the
resources of the continental shelf where
that shelf extended beyond the 200nm
limit of the EEZ.
Because of the unique geography and
configuration of the Arctic Sea, there are
multiple claims by the coastal states to
rights in respect of these resources.
However, contra the position in
the South China Sea, these claims are
proceeding in an orderly fashion pursuant
to the mechanisms established in the
LoSC. In particular LoSC established a
21 member ‘Commission on the Limits
of the Continental Shelf’ to receive and
determine claims, and a procedure for the
determination of those claims.
Most recently (August 2015), Russia has
submitted an updated claim. Indications
are that these claims will be settled in
accordance with the agreed procedures
and without conflict.
As set out briefly above, possession
of maritime entitlement proceeds from
sovereignty over land. But what about a
state which used to exist, but is no more?
This is an issue prospectively facing a
number of low lying Pacific states, among
them Tuvalu, Kirabati and the Federated
States of Micronesia. If these islands go
under, will they still have the right to (for
example) an EEZ?
The answer to this may proceed on the
question of whether or not they will still
be states. As the four determinants/indicia
of a state are a permanent population, a
defined territory, a government and the
capacity to enter into relations with other
states, it seems that any sinking states may
fail on the territory requirement.
However, what about a state that did
exist, but built an artificial island on site
of a sunken/sinking island? What will be
the effect of article 60(8) of the LoSC:
‘Artificial islands, installations and structures
do not possess the status of islands. They have no
territorial sea of their own, and their presence does
not affect the delimitation of the territorial sea, the
exclusive economic zone or the continental shelf.’
Ultimately such a question may be
settled by something more than legal
niceties. Perhaps more relevant is the
question of whether any of these states
could afford to build artificial islands.
Without a benefactor, perhaps not. In any
event, if technical expertise is required, it
seems likely that the Chinese will be able
to assist. h
* Chris Kelly is a Sydney lawyer specialising
in commercial law <www.ckcl.com.au>. He
can sometimes be found on the water in his
F27 trimaran or at the Lane Cove 12ft Sailing
The Arctic is rich in resources. Russia’s 2015 submission to the Commission on the Limits
of the Continental Shelf made large claims to those resources.
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