Beijing calls ‘island’ an undersea atoll

China’s communist rulers shamelessly claim the “global commons,” the planet’s resources that commonsensically belong to all. Supreme Court Senior Associate Justice Antonio T. Carpio exposes this in “Grand Theft of the Global Commons,” a recent speech at the University of San Agustin-College of Law, Iloilo City. Following is the third of a four-part serialization of his research.

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Problem arises when China’s Fisheries Law is applied to the high seas. Also, to the EEZs of other coastal States that China claims to fall within its 9-dashed lines in the South China Sea.

China’s 12th Five-Year Plan for National Oceanic Development states that the sea area under its jurisdiction comprises 3,000,000 square kilometers. The 12th Five-Year Plan of the Hainan Maritime Safety Administration states that the sea area under Hainan’s jurisdiction comprises 2,000,000 square kilometers. The South China Sea has a sea area of 3,500,000 square kilometers. In the 1988 creation of the province by China’s National People’s Congress, Hainan’s territory expressly includes Zhongsa Island, internationally known as Macclesfield Bank.

The Fisheries Law of China and the Fishery Regulations of Hainan, when applied to the high seas in the South China Sea, violate directly, openly and glaringly two UNCLOS provisions: first, that all States have a right to fish in the high seas; second, that no State can subject the high seas to its sovereignty.

Let me quote from Isaac Kardon’s article in China Brief published by Jamestown Foundation (January 24, 2014): “The Xinhua press release announcing the new banfa (Regulations) asserts that Hainan is responsible for some 2,000,000 square kilometers of relevant maritime area (xiangguan haiyu). The only official document citing this figure is the obscure 12th Five-Year Plan of the Hainan Maritime Safety Administration (MSA, July 7, 2012). It claims that the province administers roughly two-thirds of China’s maritime space (woguo haiyu), sets base points for the northern tier of waters under Hainan’s administration, and extends a line southeast at 140 degrees from the Qiongzhou Strait as the northeastern boundary of that zone... This line encloses the Macclesfield Bank, and intersects the infamous U-shaped ‘nine-dashed’ line, thus including the disputed Spratly and Paracels Islands along with the EEZs of Vietnam, Malaysia, Indonesia, Brunei, and the Philippines....”

This reveals five assertions:

One, Hainan claims to administer 2,000,000 square kilometers of maritime space, two-thirds of China’s total claim in the South China Sea.

Two, China’s total claimed maritime space in the South China Sea is 3,000,000 square kilometers.

Three, since the entire South China Sea has an area of 3,500,000 square kilometers, the maritime space Hainan claims to administer comprises 57 percent of the entire South China Sea.

Four, with maritime space of 3,000,000 square kilometers, China claims 85.7 percent of the entire South China Sea.

Five, the maritime space China claims under its jurisdiction, and Hainan claims to administer, includes the Macclesfield Bank, as well as large swathes of the EEZs of Vietnam, the Philippines, Malaysia, Brunei and Indonesia.

Wu Shicun, head of Hainan’s Foreign Affairs Office and president of the National Institute for South China Sea Studies, told the New York Times that Hainan’s fishing Regulations apply to “all entities within the nine-dotted line and the contiguous waters.” He also told the Global Times that Hainan would focus on administering the Xisha (Paracels) and Zhongsa Islands (Macclesfield Bank) and their adjacent waters.

Shen Shishun, director of the Department of Asia-Pacific Security and Co-Operation of the China Institute of International Studies, told the South China Morning Post: “Our navy and law enforcers have not patrolled the disputed areas often enough. Now, given the strengthening of their capabilities, they will set up surveillance... That’s why we now require foreign fishing vessels to get permission.”

Macclesfield Bank is one of the world’s largest atolls, 6,448 square kilometers, ten times Metro Manila. It lies just outside the Philippine EEZ facing South China Sea from Luzon. It is named after HMS Macclesfield, a British warship that ran aground there in 1804.

Not an island, Macclesfield Bank is a fully submerged atoll whose highest peak is nine meters undersea. China calls Macclesfield the Zhongsa Island, which is glaringly misleading because the entire area is fully submerged even at high tide. Under UNCLOS, a geologic feature is an island only if it is above water at high tide. Macclesfield does not qualify as an island under this UNCLOS definition. An island is subject to a claim of sovereignty – but not a fully submerged atoll beyond the territorial sea like Macclesfield. As a fully submerged atoll beyond China’s territorial sea, Macclesfield is not subject to its sovereignty claim. Since Macclesfield is beyond China’s EEZ, it cannot claim any exclusive right to exploit the fishery resources there.

Under UNCLOS, Macclesfield Bank is part of the high seas since it is situated beyond the EEZ of any coastal State. It is within the “hole of the doughnut” in the middle of the South China Sea. UNCLOS prohibits any State from subjecting the high seas to sovereignty. All States have the right to fish in Macclesfield, which is part of the global commons. Rich in fishery resources, Macclesfield has been a traditional fishing ground of Filipinos, just like nearby Scarborough Shoal.

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