The Exclusive Economic Zone and food security for developing coastal states in the South China Sea

Abstract

The human right to food security is the lost dimension of the maritime boundary disagreements in the South China Sea. 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. Yet China’s encroachment on its neighbor’s EEZs directly undermines the central purpose for creation of the zone. Whether China actually has lawful title to any of the insular features in the Paracel Islands and Spratly Islands is irrelevant to the question of sovereign rights over the resources in the region. As none of the features generate a 200-mile EEZ, the coastal states of the South China Sea may assert sovereign rights and jurisdiction from their normal baselines running along the coast of the mainland and the major islands supporting human habitation or an economic life of their own. Consequently, the southern-most reach of Chinese territory is the southern tip of Hainan Island. Vietnam, Malaysia, Indonesia, Brunei, and the Philippines enjoy the large EEZs throughout the South China Sea. This legal analysis is the only conclusion that supports the purpose of the zone, which is to protect rights of subsistence fishing for coastal populations. China’s distant water fishing activities, which stretch some 1,200 km from Hainan Island, unlawfully impair subsistence fishing by the South China Sea states. Although this analysis was written well before the 2016 Philippine–China Arbitration under Annex VII of UNCLOS, it is entirely congruent with the holding in the case. It remains to be seen whether China will ever curtail its gross violations of the international law of the sea.