There is a clear historical record of Chinese people inhabiting and engaging in commercial activities on Taiping Island, the biggest of the Nansha Islands. Whether or not a land feature is capable of sustaining human habitation and economic activityare the key criteria set by the United Nations Convention on the Law of the Sea(UNCLOS) to determine whether or not it should be considered an island. In ruling that Taiping Island is a “rock”, the arbitral tribunal is disregarding this factual record.

The tribunal’s award argued that “the temporary use of the features by fishermen did not amount to inhabitation by a stable community and that all of the historical economic activity had been extractive in nature”. Accordingly, all of the high-tide features in the Nansha Islands including Taiping Island are “legally ‘rocks’ that do not generate an exclusive economic zone(EEZ) or continental shelf.” Such an absurd ruling came as a surpriseto many observers around the world, and has been widely criticized.

Chinese fishermen engaged in sustained activities on Taiping Island, including fishing, well-digging, erection of houses and temples, and livestock farming. These activities were expressly recorded in the sea route logs used by Chinese fishermen generation after generation. In 1947, the Chinese government established the Nansha Island Administration Agency on the island, which fell under the jurisdiction ofGuangdong province. In the same year, a meteorological center and radio station on the island began operations. Taiping Island has been under the control of a Taiwanese garrison since the 1950s. The Taiwan administration also built facilities to explore natural resources on the island.

Additionally, some European publications have recorded Chinese activities on and around Taiping Island. For example, the Guide to the South China Sea issued by the British Hydrographic Department in 1868 noted that Chinese fishermen from Hainan Island made their living from sea cucumbers and shellfish in the waters around the Zhenghe Isles and Reefs. According to that guide, the fishermen set footon almost every isle and reef there, some even settling on these features for sustained periods of time. The living conditionson Taiping were much better than in other places in the Nansha Islands. The1923 edition of the same Guide again noted that Chinese fishermen frequently visited Taiping Island seeking sea cucumbers and shellfish. According to a 1933 issue of Le Monde Colonial Illustre, a French magazine,Taiping Island, Zhongye Island, and Nanwei Island were fertile,livable places with drinkable water provided by wells, and residents planted tropical fruit trees and vegetables and raised fowl.

However, the tribunal concluded that an island should have the capacity, in its natural condition, to sustain either a stable community of people or economic activity that is neither dependent on outside resources nor purely extractive in nature. Jia Yu, deputy director of the Institute for Ocean Development Strategy Studies at China’s State Oceanic Administration, told People’s Daily that the tribunalin effect narrowed the legal definition of what constitutes an island. At the result, the largest feature within the Nanshawas downgraded from an island to a “rock”. Such a conclusion came as a shock,as it is not upheld by any national practice or by precedentset by other international courts.

Chia-Jui Cheng, a professor at Soochow University Law School in Taiwan, notes that the tribunal has dismissed a consensus on Taiping Island’s legal status among international law scholars. A group of Taiwan legal scholars filed an amicus curiae brief in March to explain why Taiping is in fact anisland,noting the ample historical evidence of Chineseactivities, as well as the island’s own ability to support habitation and economic activity. Foreign scholars and journalists who have actually visited Taiping have also affirmedthat it should be considered an island. The tribunal’s decision thus flies in the face of objective evidence and legal principles. If we use the ruling as a guide to determine the status of island nations in the Pacific Ocean, many of them might no longer be considered countries.

Huang Wei, fellow at China’s Collaborative Innovation Center for Territorial Sovereignty and Maritime Rights, told People’s Daily that the tribunal didn’t have jurisdiction over Taiping Island’s status, and the proceeding was full of errors.

First, Chinese claims to a territorial sea, EEZ and continental shelf are based on the Nansha Islands as a whole; China has never made claims based on Taiping Island or any other individual island or reef. The tribunal, however, fragmented Chineseclaims when it considered the status of separate features within the Nansha Islandswith reference to related articles of the Convention. In fact,there remains disagreement in the international community as to whether these articles of the Convention are even applicable in resolving the questionsinvolved in the Nansha.

Second, there is no clear answer as to whatis actually meant by “sustain human habitation or economic life of their own”, as formulatedin Article 121 of the Convention. Traditionally, international juridical and arbitration practice has avoided this question, and scholars’ views on it vary widely. The tribunal realized that the standard it invented to determine an “island” would not gain support from existing written law, current practice, or scholarly opinion –but it still insisted on using such a groundless standard to deal with the dispute between China and the Philippines. It should not have been difficult to foresee how the tribunal’s absurd approach here would open the door for escalating disputes, rather than settling them.

Finally, Manila had not initially requesteda ruling on Taiping Island’s legal status. In its award on jurisdiction, the tribunal suggested Manila add this point to its position in order to reject China’s optional exception. To serve its pre-determined conclusion, the tribunal and the Philippines worked hand-in-hand to stage this farce, which clearly violatesprinciples of neutrality and justice.

Huang expressed concern that the decision on Taiping Island may have a disruptive effectnot only on international judicial practice but also on regional peace and stability. For example, he noted the large number of small island countriesthat are unable to sustain residents’ basic living needs and economic activities without outside resources. Currently, these islands’ claims to an EEZ and continental shelf are widely recognized. If a party uses the tribunal’s decision to challenge these islands, however, those countries will become “rocks” and lose all the entitlements generated from their status as islands – a situation that would significantly elevate the risk of new conflicts.

SurachaiSirikrai, professor of political science at Thammasat University in Bangkok, also rejected the tribunal’s decision. He suggested it would be hard to convince the world that a land feature as large as Taiping Island,with its own supply of fresh water, is a “rock”. A political farce initiated by the Philippines thus sets a damaging precedent for the rest of the world.

There is plenty of evidence that Taiping Island meets the Convention’s requirements for island status. Any attempt to deny this fact – and the lawful maritime rights that go along with it – will ultimately fail. The tribunal’s decision revealed that the real motivation behind this case is to deny China’s sovereign and maritime rights over the Nansha Islands. China’s will and resolution to safeguard its legitimate rights and interests will remain unaffected.