Do their claims to extended maritime zones for these islands reflect a legitimate
interest to be taken into account by a decision-maker? Australia, for example, may
well argue that its position is legitimate because the marine environment around the
Heard and McDonald Islands is much better served by the 2002 establishment of the
HIMI Marine Reserve,
63 and its assertion of exclusive jurisdiction has facilitated
better conservation and management of the living resources in the area. As with the
Philippines and China, a decision that favours its claims becomes its own selffulfilling legitimacy of the interest.
Yet Australia may also assert its legitimacy, as would France, on the basis that the
claims to the extended maritime zones have been in place without protest for an
extended length of time, reflecting other states’ acquiescence in the legitimacy of
those claims. Japan, by contrast, has faced greater resistance to its claims to fullyentitled island status for Okinotorishima and in this situation, the legitimacy of its
position is undermined. In this factual setting, it is easier to identify the legitimacy of
a particular claim.
For completeness, we can consider the power and urgency interests of Australia,
France and Japan. At the time of the judgment, all three would have held normative
power comparable to the Philippines to the extent they all support a rules-based order
and wish to engage in the UNCLOS regime and assert and protect the interests
enshrined in that treaty. All three states have been involved in UNCLOS dispute
settlement processes (although Japan and France only as respondents),
64 so have
some credibility as players in the compulsory UNCLOS procedures.
The urgency for these three states would not have been as high as would have
been the situation with the Philippines and China. Nonetheless, all three states have
interests in the regulation of maritime activities in the South China Sea as it relates to
their navigation and defence concerns within and across this semi-enclosed sea.
Greater certainty as to the maritime entitlements of each neighbouring state would
enhance national decision-making on navigation and defence issues in both shortand long-term.
Other stakeholders that are also parties to UNCLOS are the other states that
border the South China Sea. Beyond China and the Philippines, Viet Nam, Malaysia,
and Brunei hold competing claims over different island groups, such as the Paracels
and the Spratly islands, as well as over other islands and land features located
throughout this semi-enclosed sea.
65 On the issue of the status of the features as
fully-entitled islands, rocks or low-tide elevations, there were likely two primary
considerations for these states. First would be the impact of any determination in the
arbitration on their claims to maritime zones in the area based on the maritime
63 See Australian Government Department of the Environment and Energy, Australian Antarctic
Division (undated).
64 See, e.g., Monte Confurco Case, p. 86; Camouco Case, p. 10; Volga Case (Judgment); Southern
Bluefin Tuna Cases; Southern Bluefin Tuna Cases (Jurisdiction and Admissibility).
65 For a map of the claims, see Damrosch and Oxman (2013), p. 96. Taiwan is also a claimant, but it
is not universally recognised as a state and is not a party to UNCLOS.
252
N. Klein
interest to be taken into account by a decision-maker? Australia, for example, may
well argue that its position is legitimate because the marine environment around the
Heard and McDonald Islands is much better served by the 2002 establishment of the
HIMI Marine Reserve,
63 and its assertion of exclusive jurisdiction has facilitated
better conservation and management of the living resources in the area. As with the
Philippines and China, a decision that favours its claims becomes its own selffulfilling legitimacy of the interest.
Yet Australia may also assert its legitimacy, as would France, on the basis that the
claims to the extended maritime zones have been in place without protest for an
extended length of time, reflecting other states’ acquiescence in the legitimacy of
those claims. Japan, by contrast, has faced greater resistance to its claims to fullyentitled island status for Okinotorishima and in this situation, the legitimacy of its
position is undermined. In this factual setting, it is easier to identify the legitimacy of
a particular claim.
For completeness, we can consider the power and urgency interests of Australia,
France and Japan. At the time of the judgment, all three would have held normative
power comparable to the Philippines to the extent they all support a rules-based order
and wish to engage in the UNCLOS regime and assert and protect the interests
enshrined in that treaty. All three states have been involved in UNCLOS dispute
settlement processes (although Japan and France only as respondents),
64 so have
some credibility as players in the compulsory UNCLOS procedures.
The urgency for these three states would not have been as high as would have
been the situation with the Philippines and China. Nonetheless, all three states have
interests in the regulation of maritime activities in the South China Sea as it relates to
their navigation and defence concerns within and across this semi-enclosed sea.
Greater certainty as to the maritime entitlements of each neighbouring state would
enhance national decision-making on navigation and defence issues in both shortand long-term.
Other stakeholders that are also parties to UNCLOS are the other states that
border the South China Sea. Beyond China and the Philippines, Viet Nam, Malaysia,
and Brunei hold competing claims over different island groups, such as the Paracels
and the Spratly islands, as well as over other islands and land features located
throughout this semi-enclosed sea.
65 On the issue of the status of the features as
fully-entitled islands, rocks or low-tide elevations, there were likely two primary
considerations for these states. First would be the impact of any determination in the
arbitration on their claims to maritime zones in the area based on the maritime
63 See Australian Government Department of the Environment and Energy, Australian Antarctic
Division (undated).
64 See, e.g., Monte Confurco Case, p. 86; Camouco Case, p. 10; Volga Case (Judgment); Southern
Bluefin Tuna Cases; Southern Bluefin Tuna Cases (Jurisdiction and Admissibility).
65 For a map of the claims, see Damrosch and Oxman (2013), p. 96. Taiwan is also a claimant, but it
is not universally recognised as a state and is not a party to UNCLOS.
252
N. Klein