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Drawing a Line in the South China Sea

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Drawing a Line in the South China Sea Basepoints and Equity: Drawing a line in the South China Sea Robin Cleverly Marbdy Consulting Ltd New Approaches to the South China Sea Conflicts University Of Oxford, 19-20th October, 2017 Maritime Zones: straight and Taiwan archipelagic baselines PR China Territorial Sea S O U T H C H I N A S E A Vietnam Philippines Internal water Brunei Sabah Archipelagic water Indonesia Malaysia 1 200M Limits from Taiwan Mainlands PR China Area >200M Vietnam Philippines 200M EEZ + Continental Shelf Brunei Sabah Indonesia Malaysia 2 Bathymetry Very deep ocean >5000m Deep ocean >4000m Intermediate shelf ~2000m Shallow shelf ~100m 3 Outer Continental Shelf Taiwan PR China Oceanic crust Vietnam Philippines Brunei Indonesia Malaysia 4 Outer Continental Shelf Taiwan PR China Oceanic Vietnam’s crust Partial Submission Malaysia/Vietnam Vietnam Joint Submission Philippines Brunei Indonesia Malaysia 5 Outer Continental Shelf Taiwan PR China Possible area beyond CS Outer Continental Shelf >200M Vietnam Philippines 200M EEZ + Continental Shelf Brunei Sabah Indonesia Malaysia 6 South China Sea: Islands Taiwan Prata Island PR China Paracel Islands Scarborough Reef Vietnam Spratly Islands Philippines Brunei Sabah Indonesia Malaysia 7 200M EEZ from all features Taiwan Prata Island PR China Scarborough Paracel Reef Islands Vietnam Spratly Islands Philippines Brunei Indonesia Malaysia 19 Law of the Sea Convention: Regime of Islands Article 121: Regime of islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. 8 Island Features in the South China Sea Island Rock Artificial island Sand cay = rock? 9 Island Features in the South China Sea 12M 200M? 12M only 12M only Nothing! 10 Subi Reef – low-tide elevation 1867 HMS Rifleman Survey 11 Subi Reef – low-tide elevation DecJuneOctober 20162016 2005 SatelliteSatellite Satellite ImageryImagery Imagery 12 Subi Reef: December 2016 13 Thitu Island and Reefs Sandy Cay Island 1867 HMS Rifleman Survey 14 Thitu Island and Reefs Sandy Cay Sandy Cay Island Thitu Island 15 Thitu Island and Subi Reef Entitlements Sandy Cay Island (Philippines) Low-tide elevation Subi Reef (China) 16 Gaven Reef (North) 17 Gaven Reef (North) 18 Rules for drawing boundaries • Territorial Sea (article 15): • equidistance/special circumstances • Continental Shelf/EEZ (articles 74/83) • Equitable principles Three Stage process 1. Draw equidistance 2. Adjust for relevant circumstances 3. Check for equity and proportionality 22 Status of small features in delimitation Feature Entitlement Role in Delimitation Fully entitled island TS, CZ, EEZ, CS Full or, more likely, reduced weight Small Island/Rock TS, CZ Reduced weight/enclave Low-tide elevation TS, CZ Probably nil (<12M of island) (BD/India = nil) Isolated low-tide Nil -not capable Nil elevation (>12M) of appropriation 23 Nicaragua vs Colombia Serranilla Bajo Nuevo Quitasueño Serrana Roncador S Catalina Providencia San Andres Albuquerque COSTA COLOMBIA RICA PANAMA 24 Colombia’s Islands and Cays San Andrés Quitasueño Quitasueño Serrana 25 Colombia’s proposal Serranilla Bajo Nuevo Quitasueño Serrana Roncador S Catalina Providencia San Andres Albuquerque Median line COSTA COLOMBIA RICA PANAMA 26 Nicaragua vs Colombia: ICJ Judgment (2012) Serranilla 12M Bajo Nuevo Enclaves Quitasueño Serrana Roncador Weighted S Catalina Median line Providencia San Andres Median line COSTA COLOMBIA RICA PANAMA 27 12M zones for small Taiwan islands and rocks Prata Island PR China Scarborough Paracel Reef Islands Vietnam Spratly Islands Philippines Brunei Indonesia Malaysia 28 A Solution? Taiwan Prata Island PR China CS median >200M Scarborough Paracel Reef Islands Vietnam Spratly Islands Philippines Agreed Median Indonesia Malaysia 29 Interim Practical Taiwan Prata Solution? Island PR China Scarborough Paracel Reef Islands Vietnam Spratly Islands Philippines 50M zones Brunei Indonesia Malaysia 30 .
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