By Jerome A. Cohen
Here is a very good essay by Steven Myers of the NYTimes on “Island or Rock? Taiwan Defends Its Claim in South China Sea.” The draftsmen of the United Nations Convention on the Law of the Sea (UNCLOS) could have spared the world a lot of confusion had they done a better job. Obviously Taiping Island is an island not only by the definition agreed on in UNCLOS but also in our common vernacular. But Article 121 of UNCLOS should have made it clearer that it deals with two types of islands—those entitled to a 200 nautical mile Exclusive Economic Zone (EEZ) and those that are not. By calling the latter mere “rocks” the draftsmen set the stage for misunderstanding by the general public concerning the decision of the arbitral tribunal in the Philippines-China dispute since any observer can see that Taiping Island is an island in the commonly understood sense. As the tribunal concluded, however, Taiping Island is not an island entitled to an EEZ in accordance with the criteria stated in Article 121. If every small island were allowed an EEZ, it would produce chaos and conflicts in maritime affairs.
The best part about the Myers story is its emphasis on the peaceful uses to which Taiwan is putting its occupation of the island, in contrast to the militarization by China of features that it has occupied, some of which are not even properly subject to identification as islands at all because, in their natural state, they are not above water at high tide as Taiping Island is.
As Beijing began its artificial constructions on and militarization of these always submerged or low tide reefs and tiny islands – much tinier than Taiping Island, it had tried to assure the world that it was taking these actions largely for non-military purposes, thereby inspiring some of us to suggest that it demonstrate its peaceful intentions by allowing other states to share the use of these features and thereby avoid the crisis that Chinese military bases would inevitably induce. I also suggested that Taiwan open Taiping Island to a variety of international activities. Sadly, at this point, the multilateral option—always unlikely—now seems to be definitively off the charts, leaving the U.S. and China to search for other possible ways to resolve their emerging clash of interests.