The rationale for establishment of the Exclusive Economic Zone (EEZ) in the United Nations Convention on the Law of the Sea (UNCLOS) has profound implications for the maritime disputes in the South China Sea. The EEZ was created to ensure that coastal subsistence fishing communities had access to offshore fish stocks adjacent to their coast. Developing States joined with a handful of artisanal fishing States such as Iceland to propose a 200-mile zone to protect living marine resources from distant water fishing nations, such as Japan, the Soviet Union, and the United States. As 90 percent of all fish stocks are within 200 miles of shore, the EEZ was designed to safeguard a basic human right to food security. The human right to food security is the lost dimension of the maritime boundary disagreements in the South China Sea.
The legal structure of the EEZ informs the dispute between China on the one hand and the Philippines, Vietnam, Malaysia, Brunei, and Indonesia over sovereign rights and jurisdiction in the South China Sea. In these disputes China plays the role of a distant water fishing nation, as the southern tip of Hainan Island is some 1200 kilometers from the farthest extent of Beijing’s claims in the South China Sea. The maritime zones in UNCLOS are predicated on the concept that the land dominates the sea, so coastal States are entitled to a 12 nm territorial sea over which it exercises sovereignty, a 24 nm contiguous zone for customs purposes, a 200 nm EEZ for exclusive access to living and non-living resources, and a continental shelf of 200 nm or more, over which the coastal State has rights to seabed oil minerals. Each of these zones was codified from customary international law, except the EEZ, which emerged from the mood of decolonization and national sovereignty that permeated the negotiations as well as the drive for food security and economic development.
First, the coastal States surrounding the South China Sea enjoy sovereign rights to the marine resources of their EEZ based on the legal theory of construction of the zone. The EEZ was produced during UNCLOS negotiations that spanned 9 years principally to give coastal States competence to protect subsistence coastal fishing populations, rather than as a zone of national aggrandizement or offshore industrial development. The large coastal populations of Vietnam, the Philippines, and the other States in close proximity to the seashore of the South China Sea are in contrast with China’s physically remote population and distant coastline.
Second, despite physical occupation of selected land features, such as rocks, islets, reefs and cays in the South China Sea, China does not enjoy legal title to territories located there, and therefore lacks concomitant maritime rights to an EEZ generated by them. Regardless of the resolution of the disputes over legal title to the insular rock and island features, however, the five coastal States with large populations in proximity to and adjacent to the South China Sea are entitled to a normal 200-mile EEZ to fulfill the rationale for the origin and purpose of the zone.
II. The Emergence of the EEZ
The process of creation of the EEZ in the United Nations Convention on the Law of the Sea (UNCLOS) provides a unique vantage point from which to evaluate the disputes in the South China Sea. China relies on the theory of discovery and historic title…