“No rock is an island,” atoll tale from Herbert Smith, a quote that stands out given the significance of Okinotorishima and its status under the international law of the sea.
In 1931, approximately 350 years after mariners of all stripes began passing by (or over, depending on the tide) a coral reef referred to through the ages as Parece Vela (“looks like a sail”) and Douglas Reef; the Japanese navy (seeing a hydroplane base where others had seen a sail, or less) claimed this unassuming atoll for Japan and named it “Okinotorishima.”
80 years later and Okinotorishima is still not much to look at. Ignoring Japanese construction of recent years, at high tide one area of the reef is roughly the size of a twin bed and pokes just 2.9 inches out of the ocean. The other is the size of a small bedroom and boasts about twice the height. Japan argues, however, that under international law these modest measurements are more than enough to extend Japan’s continental shelf and create a 400,000 square km Exclusive Economic Zone (EEZ) in the Philippine Sea.
So how does a 6 inch protrusion of coral legitimize a claim to the “huge volume of undiscovered oil and gas reserves estimated to lie offshore” of Okinotorishima?
The legal argument boils down to the definitions of “island” and “rock.” Under the UN Convention on the Law of the Sea (UNCLOS), the right to a piece of continental shelf or an EEZ stems from a country’s possession of a real piece of property. An “island,” defined by UNCLOS as “a naturally formed area of land, surrounded by water, which is above water at high tide” meets the test and gets its very own continental shelf. A rock “which cannot sustain human habitation or economic life of its own,” fails the test and gets nothing.
So, is Okinotorishima a rock or an island? Unsurprisingly where Japan sees a bedrock legal argument (ie, coral is not rock and high-tide visible Okinotorishima merits island status); others see…well, a rock bed. In 2008, Japan asked the UN Commission on the Limits of the Continental Shelf (CLCS) to bless its island-based rights to a continental shelf around Okinotorishima; a claim that China and South Korea have since thrown rocks at.
The CLCS now appears poised to give its views on Japan’s continental shelf claims, a decision which (because both continental shelf and EEZ claims ulimately rest on the resolution of the island/rock dichotomy) will also undoubtedly impact Japan’s EEZ aspirations. To raise the stakes even further, the CLCS’s views are also likely to ripple through the roughly 60 other continental shelf claims that it is currently considering; many of which will directly impact the energy and natural resource sector.
To read more from myCorporateResource and to access this document as well as other legal resources for the energy sector, visit their site here.