A Korean vessel investigates possible seabed mineral deposits in Tonga's EEZ, April 2011. (Applied Geoscience and Technology Division of Secretariat of the Pacific Community (SOPAC))

The value of an EEZ is on clear display in the South China Sea dispute and in the Pacific small island states battling the climate change threat. Despite their differences – one carries the weight of changing geopolitics and possible military force; the other, the disappearance of states altogether from the world map – both cases involve high stakes, and both test customary international law in new ways.

The increasingly tense dispute in the South China Sea over sovereignty of the waters and its four main archipelagoes – the Pratas, Macclesfield Bank, the Paracels and the Spratlys – has a long history. Six countries – China, Taiwan, Vietnam, Malaysia, the Phillipines and Brunei – have competing claims that they say go back centuries.  However, things heated up this year, with China showcasing its growing naval strength, clashes between Chinese, Phillipino and Vietnamese vessels, and an increase in live-fire naval exercises. A call by six members of the Association of Southeast Asian Nations (ASEAN) for a peaceful resolution to the dispute during last week’s United Nations Convention on the Law of the Sea (UNCLOS) meeting is seen against the backdrop of Beijing and Hanoi’s growing animosity.

At the heart of the dispute lies a contradiction: an EEZ means everything – and nothing.

An exclusive economic zone, or EEZ, is a 200-nautical-mile sea area measured from the low-water baseline (the level reached by the sea at low tide) of a state’s coast or of an inhabitable island under its sovereignty. An EEZ, as well as its relation, the continental shelf – the seabed and its subsoil up to 350 nautical miles from the coast – is a closely guarded asset. Under UNCLOS, a state has sovereign jurisdiction over the area’s living and non-living marine resources, which can be highly lucrative. When EEZ claims overlap, UNCLOS leaves it to states to sort out their differences, though these rules generally apply.

The two most coveted archipelagos, the Paracels and the Spratlys, are rich in resources such as minerals, oil and natural gas. Both the Phillipines and Vietnam firmly claim the Spratlys as part of their EEZ; the former calls them the Kalayaan Island Group (KIG) while Vietnam calls them the Truong Sa. China, which claims them as the Nansha Islands in an official map without latitude or longitude points, is more ambiguous. It argues the Nansha Islands are “fully entitled” to an EEZ, yet it also argues that a coastal state’s EEZ comes second to another state’s territorial sovereignty (in this case, its own).

In other words, territorial sovereignty renders this international legal concept meaningless.

This may not be a surprising argument, but it raises some questions: what can be done when inconsistencies exist between a country’s claims and the relevant international treaty, in this case UNCLOS – particularly when the state in question is a rising world and naval power?  To borrow a phrase from the New York Times, if China’s actions are setting the future tone of the region, will this tone and dismissal of the EEZ concept ultimately lead to a new direction for customary international law?

The case of the Pacific small island states and their EEZs also raises questions. Climate change has irrevocably caused sea-levels in the region to rise, leading to the possibility that these atolls nation could become uninhabitable or disappear completely. If this occurred, they could lose their status as sovereign states, and thus, all EEZ claims.

A lesser risk, though more immediate, is the slow shrinking of an EEZ as an island nation’s coastline erodes due to climate change. Since baselines are ambulatory, they retreat along with a coast – and they bring with them the outer limits of the EEZ.

To a tiny state with many atolls, the slow shrinking or entire loss of an EEZ and a continental shelf (or more than one) would mean the loss of its rights to rich, if embattled, marine resources, significant revenues from deep sea mining, access fees from foreign fishing vessels, and to its own fishing industry that lies at the core of its identity.

In short, it would be shattering.

What, then, are the legal options for a small island state to protect its EEZ?

One option is to protect a small island’s statehood status so that its claims remain legitimate. Options were explored in a previous post on a conference last month at the Columbia Law School.

Another option is to look to UNCLOS for guidance, despite that the 1982 convention was negotiated when climate change and its possible threats to state and marine sovereignty were not in the policy lexicon. Some academics think it is unlikely that UNCLOS will be amended to reflect baseline challenges because of the complexity of the treaty and its amendment process. That leaves options such as a separate agreement, or the increased use of straight baselines (while the low-water baseline follows the naturally occurring low-water mark along a coast, a straight baseline follows discrete points along an unstable coast, such as Bangladesh’s delta, allowing for greater legal stability).

Perhaps the most promising and equitable idea is Alfred Soons and David Caron’s suggestion to freeze current baselines, so that they are fixed in perpetuity even if the coast moves. This allows EEZs to remain the same despite climate change. Yet as Rosemary Rayfuse points out, a freeze on baselines is not a freeze on disputes.

Whether the question is regarding the necessity of tying a marine claim to a coastline, as in the South China Sea, or what happens when land disappears altogether, the answers will ultimately have to be found in customary international law, as it changes with a changing world.

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