Tribunal Decision: the pressure on Tsai + Excerpts from the Tribunal Decision Re Taiping Island

Been here many times, still one of my favorite spots on the island

The Blue side is putting pressure on the Tsai Administration, saying its response to the recent ruling on the South China Sea islands was weak. The Minkuotang, a pan-Blue party, is backing sending fisherman to Taiping Island:

Taiwanese fishermen are planning to sail to Taiwan-controlled Taiping Island in the South China Sea to protect the country's fishing rights in response to a court ruling that rejected the island's right to an exclusive economic zone.

A day after fishermen from Pingtung County's Donggang Township proposed to set foot on Taiping to assert Taiwan's sovereignty claim to the island and safeguard their fishing rights, the Liuchiu Fishermen's Association expressed support for the move on Saturday.

The Party Chair, a former KMT legislator, urged President Tsai to take "concrete action". Like what? Bomb the Hague?

The Legislature also put out a non-partisan statement backed by all parties, because stoopid isn't stoopid if it is unanimous:

A statement announced by Legislative Speaker Su Jia-chyuan (蘇嘉全) at 5pm yesterday said that the arbitration ruling has “seriously damaged the rights of the nation to its territory and the regional peace of the South China Sea.”

“The legislature, the ROC’s highest representative institution and authorized by the nation’s citizens, has made a resolution to make an international statement on the basis of facts and jurisprudence,” it said.

“The ROC enjoys the rights conferred by international law over its South China Sea islands and its relevant waters as they are, in terms of history, geography and international law, part of the ROC’s territory and waters. Any country’s claims or occupation or any international arbitration’s arbitrary decision will not be recognized by the ROC,” the statement said.

The CNA got in the swing of things, putting out a video explaining why the ruling is unfair. Yes, the whole government is taking a position sure to antagonize its South China Sea littoral friends and annoy the US and Japan. Not to mention, this puts pressure on the Tsai Administration. Brilliant.

What did the Tribunal say? Was its decision arbitrary? I've picked up some of the highpoints of the decision from the text (501 pages). They will give you a sense of what arguments and issues the Tribunal considered, as well as the thoroughness of the Philippines' case (click read more)(UPDATED: Phils gov't felt Itu Aba was most difficult part of its case, China blew the case by ignoring it). If you read the entire decision it is clear the Tribunal spent a great deal of energy on the environment...

86. The Philippines reported that it approved of the proposed appointments and had no comments. On 11 March 2016, the Philippines submitted its comments concerning additional materials relating to (a) evidence relevant to Submissions No. 11 and 12(b) on protection of the marine environment, and (b) materials relevant to the status of features that may generate overlapping entitlements. Its comments were accompanied by 30 new annexes, including two new expert reports, by Dr. Ryan T. Bailey on “Groundwater Resources Analysis of Itu Aba” and by Dr. Peter P. Motavalli on “Soil Resources and Potential Self-Sustaining Agricultural Production on Itu Aba.”


87. China did not comment on the proposed appointment of either expert candidate. China did not respond to the Tribunal’s invitation to supply information about environmental impact assessments and did not comment on the new materials about Itu Aba.

89. On 1 April 2016, the Tribunal sent three letters to the Parties:

(a) The first letter noted that, in furtherance of its mandate to satisfy itself that the Philippines’ claims are well founded in fact, the Tribunal considered it appropriate to have reference, to the greatest extent possible, to original records based on the direct observation of the features in question, prior to them having been subjected to significant human modification. It informed the Parties that, as the most extensive hydrographic survey work in the South China Sea prior to 1945 was carried out by the Royal Navy of the United Kingdom, followed closely by the Imperial Japanese Navy, the Tribunal had undertaken to seek records from the archives of the United Kingdom Hydrographic Office (the “UKHO”), which also hold certain Japanese records captured during the Second World War. The Tribunal provided documents and survey materials obtained by the Tribunal from the UKHO archives and invited the Parties’ comments by 22 April 2016.

92. On 25 April 2016, the Philippines filed its responses to the Tribunal’s request for comments on additional materials regarding the status of Itu Aba. While the Philippines considered that it would have been “within its rights in requesting, and the Tribunal would be well-justified in finding, that these materials should be disregarded,” it nevertheless “recognized the exceptional difficulties China’s non-appearance has created for the Tribunal” and chose “not to object to the Tribunal’s consideration of Taiwan’s most recent materials should the Tribunal itself find it appropriate to do so.” 21 The Philippines’ comments were accompanied by two revised translations and 21 new annexes, including supplemental expert reports from Dr. Bailey and Dr. Motavalli. The Philippines submitted that: (a) Taiwan’s newest materials “must be treated with caution,” (b) “[n]o further attempts by Taiwan to influence the Tribunal’s deliberations should be entertained,” (c) “[i]n any event, Taiwan’s latest submissions only prove that Itu Aba has never supported genuine, sustained human habitation or economic life of its own” as explained in part by the “fact that Itu Aba lacks the freshwater and soil resources to do so,” (d) the historical account of China’s alleged presence in the South China Sea in “Taiwan’s Position Paper only underscores the baseless nature of China’s claim to exclusive historical rights to the maritime areas located within the nine-dash line,” and (e) the “PRC’s Spokesperson’s remarks make it clear that Taiwan is alone among the littoral authorities in the South China Sea in claiming that Itu Aba is capable of sustaining human habitation and economic life of its own.”

100. The new Chinese Ambassador sent a second letter to the individual members of the Tribunal on 3 June 2016, enclosing a statement expounded by a Foreign Ministry Spokesperson in response to a question about the status of Itu Aba. The Ambassador emphasised again that his letter does not constitute a plea or participation in the arbitration. The enclosed statement of the Foreign Ministry Spokesperson was the following:

Q: As reported by some foreign media, the Philippines and the arbitral tribunal are attempting to characterize Taiping Dao of China’s Nansha Islands as a “rock” other than an “island”. However, according to experts and journalists who recently visited Taiping Dao, it is an island boasting plenty of fresh water and lush vegetation. The installations and facilities for medical care, postal service, energy generation, and scientific research are all available and in good working condition. It is vibrant and lively everywhere on this island. Do you have any comment on this?

A: China has indisputable sovereignty over the Nansha Islands and its adjacent waters, including Taiping Dao. China has, based on the Nansha Islands as a whole, territorial sea, exclusive economic zone and continental shelf. Over the history, Chinese fishermen have resided on Taiping Dao for years, working and living there, carrying out fishing activities, digging wells for fresh water, cultivating land and farming, building huts and temples, and raising livestock. The above activities are all manifestly recorded in Geng Lu Bu (Manual of Sea Routes) which was passed down from generation to generation among Chinese fishermen, as well as in many western navigation logs before the 1930s. The working and living practice of Chinese people on Taiping Dao fully proves that Taiping Dao is an “island” which is completely capable of sustaining human habitation or economic life of its own. The Philippines’ attempt to characterize Taiping Dao as a “rock” exposed that its purpose of initiating the arbitration is to deny China's sovereignty over the Nansha Islands and relevant maritime rights and interests. This violates international law, and is totally unacceptable.

101. In response to an invitation from the Tribunal, the Philippines commented on the Ambassador’s letter and accompanying statement on 10 June 2016. The Philippines submitted that there is no basis in the Convention for China’s assertion “based on the Nansha Islands as a whole” to a territorial sea, exclusive economic zone and continental shelf. With respect to the Geng Lu Bu, the Philippines observed that this “Manual of Sea Routes” is reported to be a navigation guide for “Hainan fishermen” consistent with evidence that China’s fishermen “did no more than sojourn temporarily” at Itu Aba, and that in any event China had failed to demonstrate any evidence by citation to specific text or supporting documentation that would constitute proof as to the characterisation of Itu Aba.

132. First, pursuant to the procedure established in Article 25 of the Rules of Procedure, in the Tribunal’s Request for Further Written Argument of 16 December 2014, the Tribunal noted the Philippines’ argument that “none of the features in the Spratlys—not even the largest among them—is capable of generating entitlement to an EEZ or a continental shelf.”45 The Tribunal invited the Philippines to “provide additional historical and anthropological information, as well as detailed geographic and hydrographic information regarding” Itu Aba, Thitu, and West York.”46 The Tribunal also invited the Philippines to provide written argument on the status of any maritime feature claimed by China—“whether or not occupied by China”—that could potentially give rise to an entitlement to an exclusive economic zone or continental shelf extending to any of Mischief Reef, Second Thomas Shoal, Subi Reef, Scarborough Shoal, Reed Bank, or the areas designated as Philippine oil blocks “Area 3” and “Area 4”. In so doing, the Philippines was invited to provide “historical and anthropological information, as well as detailed geographic and hydrographic information” regarding the following features: Spratly Island, North-East Cay (North Danger Reef); South-West Cay (North Danger Reef); Nanshan Island; Sand Cay; Loaita Island; Swallow Reef; Amboyna Cay; Flat Island; Lankiam Cay; Great Discovery Reef; Tizard Bank reefs; and Union Bank reefs.47 In response to this request, the Philippines submitted with its Supplemental Written Submission an atlas and an expert report by Professor Clive Schofield, Professor J.R.V. Prescott, and Mr. Robert van der Poll entitled “An Appraisal of the Geographical Characteristics and Status of Certain Insular Feature in the South China Sea” (the “Schofield Report”). The atlas provided for each feature: a geographic and hydrographic description, a satellite image, photographs, excerpts from various sailing directions and nautical charts, and a summation of the pertinent geographic and hydrographic information by geographer Dr. Robert W. Smith.48

142. As explained in the Tribunal’s communications to the Parties, the Tribunal considered historical records concerning conditions on features in the Spratly Islands, prior to them having been subjected to significant human modification, to be more relevant than evidence of the situation currently prevailing, which reflects the efforts of the various littoral States to improve the habitability of features under their control. Accordingly, although the Tribunal has fully considered the contemporary evidence provided by the Philippines, as well as certain materials made public by the Taiwan Authority of China, the Tribunal has not itself sought additional materials on contemporary conditions on any feature in the Spratlys. The Tribunal has, for the same reason, not sought to take advantage of the Taiwan Authority of China’s public offer to arrange a site visit to Itu Aba. In this respect the Tribunal notes that China, through its Ambassador’s letter of 6 February 2015, objected strongly to the possibility of any site visit to the South China Sea by the Tribunal.67

401. Itu Aba is known as “Taiping Dao” (太平岛) in China and “Ligaw” in the Philippines. It is the largest high-tide feature in the Spratly Islands, measuring approximately 1.4 kilometres in length, and almost 400 metres at its widest point. Its surface area is approximately 0.43 square kilometres. It is located at 10° 22′ 38″ N, 114° 21′ 56″ E, lying atop the northern edge of Tizard Bank, 200.6 nautical miles from the archipelagic baseline of the Philippine island of Palawan and 539.6 nautical miles from China’s baseline point 39 (Dongzhou (2)) adjacent to the island of Hainan. The general location of Itu Aba, and that of the other major Spratly Island features described in this Section, is depicted in Map 3 on page 125 above. It is surrounded by a coral reef and shallow water. Itu Aba is currently under the control of the Taiwan Authority of China, which stations personnel there. There are multiple buildings, a lighthouse, a runway, and port facilities on Itu Aba.

426. The Philippines concedes that the three largest features, Itu Aba, Thitu, and West York, “differ from Scarborough Shoal, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef in terms of their area, natural conditions and small population,” but submits that these differences are “too minor to elevate such small, insignificant and remote features” to the status of fully entitled islands. According to the Philippines, none of the features in the Spratly Islands is capable, based on its own natural elements, of sustaining both human habitation and economic life of their own.426

427. At the Hearing on the Merits, the Philippines summarised its view of the evidence concerning Itu Aba as follows:

(1) there is no fresh water on Itu Aba suitable for drinking or capable of sustaining a human settlement;

(2) there is no natural source of nourishment on the feature capable of sustaining a human settlement;

(3) there is no soil on Itu Aba capable of facilitating any kind of agricultural production that could sustain human habitation;

(4) there has never been a population on the feature that is indigenous to it;

(5) excluding military garrisons, there has never been human settlement of any kind on Itu Aba;

(6) there was not even a military occupation prior to World War II

(7) the Taiwanese troops that are garrisoned at Itu Aba are entirely dependent for their survival on supplies from Taiwan, and apart from sunlight and air, they derive nothing they need from the feature itself;

(8) no economic activity has been or is performed on Itu Aba.

428. The Philippines points particularly to the lack of drinkable water and the fact that the Taiwan Authority of China has had to compensate for this through construction of desalination plants. The Philippines relies on a 1994 scientific study on “The Flora of Taipingtao (Aba Itu Island)” (the “1994 Study”), prepared based on a field inspection by Taiwanese botanists whose work was financed by the Taiwan Authority of China, and submits that its conclusions on water, soil, and vegetation demonstrate the impossibility of sustaining human habitation.

429. The Philippines acknowledges that in the nineteenth century, British vessels observed the presence of fishermen on Itu Aba. But according to the Philippines, the presence of the fishermen is conveyed as “very primitive and temporary” and “short-lived” and the fishermen’s “inability to settle on Itu Aba only confirms the feature’s uninhabitability.” The Philippines notes that the Japanese were the first to use the feature as a military base, during the Second World War, but recalls that military occupation for the sole purpose of asserting sovereignty does not suffice to prove capacity to sustain human habitation or an economic life. The Philippines also observes that all attempts to extract commercial quantities of guano from the Spratlys failed.

430. When asked to comment on certain historical materials obtained by the Tribunal from the archives of the United Kingdom Hydrographic Office that include descriptions and photographs of Itu Aba and other features in the Spratly Islands, the Philippines argued that these materials “support [its] conclusion that the feature is a rock as defined in Article 121(3).” 432 The Philippines notes that the 1868 China Sea Directory describes Itu Aba as being “almost completely devoid” of natural resources and frequented by fishermen having their permanent residence in Hainan, not on Itu Aba itself. 433 The Philippines considers that the documents obtained by the Tribunal confirm that subsequent Japanese attempts to cultivate or settle the island were either unsuccessful or exclusively “military in nature”; that the feature remained uninhabited, excepting a “brief” post-war Taiwanese occupation from 1946 to 1950; 435 and that Itu Aba lacked both fresh water and high-quality soil.436

431. The Philippines likewise submits that various historical documents obtained by the Tribunal from the Bibliothèque Nationale de France and the Archives Nationales d’Outre-Mer and provided to the Parties for comment “confirm that Itu Aba and the other insular features discussed in the French documents . . . lack the natural resources, including fertile soil and freshwater, necessary to sustain human habitation or economic life.”437 The Philippines notes that the Division Botanique à l’Institut des Recherches Agronomiques de L’Indochine visited Itu Aba in 1936 and recorded that it was covered only partly with soil, and that the rest was coral sand, guano and natural phosphate, and that the vegetation was very poor.438 According to the Philippines, “[n]one of the native species cataloged by the visiting botanists are agricultural crops capable of supporting human habitation” as they are “either inedible or have only limited nutritional value.” 439 On this basis, the Philippines argues that Itu Aba is “incapable of sustaining agricultural production.”440 The Philippines also points to “the lack of any discussion of freshwater in any of the documents.”441 Furthermore, the Philippines considers that the archival material confirms that Itu Aba “had no permanent human population” and was not recognised as “having any economic value.”442

432. When asked at the Hearing on the Merits to comment on more recent materials concerning Itu Aba published by the Taiwan Authority, the Philippines noted that two books claimed only the existence of “groundwater wells” without describing the water’s drinkability and depicted a “skimming well”, which is used to extract relatively fresh water from the upper zone of a
fresh-saline aquifer in freshwater lenses.443 According to the Philippines:

Taiwan’s fancy photographs of a paved airstrip, communications equipment and various buildings change nothing. They amount to no more than a manmade façade, a Potemkin “island”. . . whose artifices serve mainly to divert attention from the true nature of the feature: a remote dot of exposed coral that is incapable naturally of sustaining any human habitation or economic life of its own.444

433. The Philippines recalls that the Taiwan Authority never claimed maritime entitlement beyond 12 nautical miles from Itu Aba until after the Philippines initiated this arbitration.445 434. The Philippines suggests that the Taiwan Authority’s more recent public declarations and publication of video of conditions on Itu Aba through the internet are attempts by the Taiwan Authority to rebut the Philippines’ case and “put its best foot forward” in the context of this arbitration. 446 The Philippines urges the Tribunal to treat with great caution the claims presented by the Taiwan Authority as being unsupported by actual evidence, created specifically for the purpose of litigation, and based on statements by officials with an interest in the outcome of the proceedings. The Philippines asserts that the Taiwan Authority and China’s interests are “aligned” in maximising Itu Aba’s potential maritime entitlements.447

435. According to the Philippines, earlier statements of Taiwanese officials and academics reference the need for regular external supplies to sustain the garrison and thus undermine the Taiwan Authority’s claim that Itu Aba has the natural resources to be self-sufficient.448 The Philippines observes that the first civilian to register residence on the island only did so in 2016 in the midst of the Taiwan Authority’s public relations campaign to “aggrandize” the feature.449

436. The Philippines also rejects the Taiwan Authority’s claims about “rich supply of groundwater” from five wells on the island. It suggests that the Taiwan Authority’s failure to refer to the 1994 Study must “be taken to mean that [it] has no effective response.”450 The Philippines recalls that four of the wells are “skimming wells”. According to the Philippines, even the carefully skimmed water from the best well produces limited amounts of water that verges close to minimal potability.451 The Philippines submits an expert analysis of Itu Aba’s groundwater resources by Dr. Ryan T. Bailey.452 Taking into account the size of the island, its composition, and the annual rainfall, Dr. Bailey concludes that “any freshwater lens on Itu Aba is, at best, a fragile source of freshwater that, if disturbed or affected by periods of low rainfall, would become completely exhausted.”453 The Philippines concludes that “even if Itu Aba does have a marginal freshwater lens beneath it, which is questionable and unsupported by any actual evidence tendered by Taiwan, it requires constant and substantial supplementation by artificial means just to keep Taiwan’s few troops alive.”454

437. The Philippines also takes issue with the Taiwanese claims concerning soil on Itu Aba, which it says are contradicted by the 1994 Study. The Philippines submits from Dr. Peter Motavalli an Expert Report on Soil Resources and Potential Self-Sustaining Agricultural Production on Itu Aba and a Second Supplemental Expert Report on Soil Resources and Potential Self-Sustaining Agricultural Production on Itu Aba.455 Dr. Motavalli describes the calcareous soils and highlights several constraints for self-sustaining agricultural production on Itu Aba,456 queries whether the soil for vegetables might have been introduced, and notes the problems of pests and diseases.457 In his supplemental export report, Dr. Motavalli provides observations on a 1936 report by the Division Botanique à l’Institut des Recherches Agronomiques de L’Indochine obtained by the Tribunal from the National Library of France and concludes that:

the 1936 Report’s analysis of an “[a]verage soil sample” on Itu Aba confirms my prior conclusions that the soil is sandy, calcareous, has a high pH, and lacks some major nutrients. In light of these characteristics, I conclude that Itu Aba’s soil resources cannot sustain a meaningful level of agricultural production without the use of soil amendments and other major interventions.458

The Philippines expresses doubts about the agricultural capability of Itu Aba to even feed a single person.

438. The Philippines considers the Taiwan Authority’s submission of additional materials concerning the status of Itu Aba, such as a “Position Paper on ROC South China Sea Policy Republic of China (Taiwan)” and an “Amicus Curiae Submission by the Chinese (Taiwan) Society of International Law,” similarly unavailing. Even on the basis of the materials submitted by the Taiwan Authority, the Philippines argues that Itu Aba has neither a longstanding history of human habitation nor possesses sufficient fresh water and soil resources to sustain such a population, and notes that any attempts made to carry out “meaningful economic activity” on Itu Aba uniformly “ended in failure.”459 The Philippines attaches a supplemental expert report by Dr. Ryan T. Bailey, who questions the Taiwan Authority’s measurements of water quality and salt concentration on Itu Aba’s wells. 460 The Philippines considers the historical account presented by the Taiwan Authority relevant insofar as it undermines China’s claim to exclusive rights within the ‘nine-dash line’.461

439. Finally, the Philippines objects to the Taiwan Authority’s arguments that if the Tribunal were to find Itu Aba to be a rock, “serious issues could arise, as several nations would no longer be able to claim EEZs of certain islands.”462 The Philippines notes that the Taiwan Authority’s position is undermined by China’s own stance with respect to Japan’s claim to an exclusive economic zone around Oki-no-Tori-shima. It also recalls that restraining excessive State claims is one of the purposes of Article 121(3) and international law in general.463 The Philippines echoes its appeal to the Tribunal to avoid a situation of dangerous uncertainty:

Finding that a tiny feature like Itu Aba could generate entitlement to a continental shelf and EEZ would intensify the already dangerous sovereignty disputes in the area (and potentially elsewhere in the world) and encourage further damage to the delicate natural environment of the South China Sea by encouraging States to undertake further efforts to solidify their claims. Such an outcome would be inconsistent with the core objects and purposes of the Convention, namely to ‘promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment.’ It would be equally inconsistent with the central object of Part XV: the peaceful settlement of disputes.464

440. The Philippines submits that there are two ways for the Tribunal to avoid these threats to peace: either find Itu Aba to be a rock, or “enjoin both Parties, pending agreement on delimitation, from exercising any rights in respect of any feature in the Spratly Islands beyond 12 [miles].”465

579. The Tribunal will review different aspects of conditions on the features in turn.

(a) The Presence of Potable Fresh Water

580. There are consistent reports, throughout the record, of small wells located on a number of features in the Spratly Islands. The 1868 edition of the China Sea Directory, reflecting observations collected in the course of HMS Rifleman’s survey work in the area, notes the presence of small wells on Itu Aba, Thitu, and North-East Cay, observing with respect to Itu Aba that “the water found in the well on that island was better than elsewhere.” 600 HMS Rambler reported a similar small well on Namyit in 1888;601 HMS Iroquois described two wells on South-West Cay in 1926;602 and HMS Herald reported a well on Spratly Island in 1936.603 Finally, the 1944 British Sailing Directions for the Dangerous Ground describe two wells on Nanshan Island.604

582. At the same time, a Japanese survey report of Itu Aba from 1939, apparently undertaken for commercial purposes, describes significant quantities of fresh water in the following terms:

At that time, there were four wells, but only two of them were used. One of the two wells is one meter in diameter, and about five meters deep. There is a large quantity of the outwelling water, and according to the result of a survey, the water is suitable for drinking, and the people staying there also used the water for drinking.

Even if they had collected about 10 tons of water per day from the well, the situation of the well has not changed at all. Since they never collected more water than about 10 tons per day, it is impossible to correctly explain the quantity of the water which the well may supply. However, it is recognized that the well is able to supply considerable quantity of water.

Besides the well mentioned above, the other well of similar size was used for various purposes, and all chores that require water were done using this well. The other two wells were not used at that time and were unattended, although it is said that the water outwelled in the manner explained above in these wells.610

583. Another Japanese account of a visit to Itu Aba in 1919 similarly indicates that “[t]he quality of the water was good, and the quantity was abundant.”611 More recent accounts of water quality are mixed. One study by Taiwanese botanists in 1994 indicates that “[t]he underground water is salty and unusable for drinking.”612 Another study from the same year indicates that “[o]n the whole, the two freshwater sites actually had better water quality than in usual rivers or lakes” and that “the freshwater resources of the island were still in good condition.”613 Media coverage of recent visits to Itu Aba by officials and guests of the Taiwan Authority of China also stress that the well water there is drinkable.

585. The record likewise indicates that the larger features in the Spratly Islands have historically been vegetated. The 1868 edition of the British China Sea Directory describes Itu Aba as “covered with small trees and high bushes” and notes the presence of “two or three cocoa-nut and a few plantain trees near a small well, but the most conspicuous object is a single black clump tree.”615 Thitu is similarly described as having a “dark clump tree”, as well as “some low bushes and two stunted cocoa-nut trees, near to which is a small well and a few plantain trees.”616 Namyit was described in 1888 as “well covered by small trees and shrubs,”617 Loaita was “covered with bushes”, 618 and both cays on North Danger Reef were “covered with coarse grass.”619 During the same period, however, Spratly Island is noted as having “not a bush or even a blade of grass.”620 The crew of HMS Rifleman were also noted to have been planting coconut trees on Spratly Island and Amboyna Cay in 1864, in order to increase visibility of the features.621

586. Over time, the level of vegetation on the features appears to have increased, with Japanese commercial interests (discussed in paragraph 610 to 611 below) having made a concerted effort to introduce fruit trees on Itu Aba. An account from 1919 notes that “[a] huge number of banana trees grew densely everywhere on the island. Also, wild mice ran on trees everywhereon the island, and almost all the ripe bananas had become food for the mice. In fact, the island was dominated by mice.” By 1933, Itu Aba is described as having “a dense forest of papaya. Papaya trees which were originally planted by the Japanese spilled their seeds, and thrifted through the whole island. In addition, there remained fine palm fields, pineapple fields and sugar cane fields.”623

588. The source of the crops recorded on Itu Aba is made clear from a 1939 account of commercial activities during the period of Japanese presence that records as follows:

The company made an effort to develop the island for settlement, and studied the propagation of palm trees, cultivation of papayas, pineapples and bananas, extraction of copra, utilization of papayas, processing of pineapples, etc., and the company grew vegetables to supply food. Papayas grew vigorously everywhere on Long Island, and the island was also called the Island of Papayas.627

589. Another Japanese account from 1939 records that:

As for the plants, in addition to the short trees of two or three meters, there are 131 palm trees 7 to 10 meters tall, which bear a lot of fruit every year. In addition, there are 31 hard trees, two meters in circumference and 15 meters tall. Further, there are 80 soft trees, one meter in circumference and about 10 meters tall. Besides, there are many trees, 20 centimeters in circumference and about three meters tall growing densely. Besides these, there are a number of papaya and banana trees.

Considerable portion of the open land mentioned above has started to be used as an agriculture field, and napa and radish are grown there.

As for animals, many chickens and pigs are farmed . . . .

590. The Japanese account is confirmed by the French, in a 1936 report by the Division Botanique à l’Institut des Recherches Agronomiques de L’Indochine, which provides the most detailed historical account of vegetation on Itu Aba:[long quote omitted]

591. By 1947, following the war, Itu Aba was described in the following terms:

There are many tropical plants growing here—the land is covered in distinctly beautiful light purple and red morning glories, which are also common on the beaches of Taiwan. Morning glories are part of the Verbenaceae family (Lippia Nodiflora (L.) L. C. Rich), and its Chinese name is Guojiangteng (Quwucao). There are many Barbados nut (Nyctaginaceae family (Pisoniaalda Spanoghe), Chinese name Bishuang) and Yinye Zidan (Tournefortia ArgenfeaL, F, Boraginaceae family) (generally growing on sand by the beach (AG-12), and these plants grow very thickly. Barbados nut grows very quickly, but the timber is not solid; the trees have diameters over ten centimeters, which can usually be toppled by one person. It cannot be used for anything other than firewood. The islands also have coconut and banana, which taste good, but they are not numerous. Papaya and the castor oil plant also grow very well; these two may be planted in large quantities. The soldiers stationed on the island have cleared land to plant vegetables, which can grow, but there is a great deal of pest damage. The Taiping Island Series [of soil] may be cultivated to provide fruits and vegetables to stationed troops with no problem; but it would not be meaningful to grow grains for consumption.630

592. Photos of Itu Aba from 1951 also show it as thickly wooded.631

593. The Tribunal considers the record to indicate that Itu Aba and Thitu to have been the most heavily forested features in their natural condition, with other features covered in low bushes, grasses, and heavy scrub. Moreover, at least Itu Aba appears to have been amenable to the introduction and cultivation of papaya and banana trees, even if such species do not necessarily appear to have been naturally occurring. The features also appear to have suffered from the imbalances common to small islands faced with introduced species, resulting in rapid shifts in the flora and fauna.

594. The historical record before the Tribunal contains less information concerning soil quality on features in the Spratly Islands, and such details are generally not recorded in historical accounts. HMS Rambler noted in 1888 that on Namyit, “[t]he soil of the island was very brown and earthy at the surface, but below a loose oolitic rock.”632 The Division Botanique à l’Institut des Recherches Agronomiques de L’Indochine who visited Itu Aba in 1936 recorded the presence of coral sand, natural phosphate, and guano. The Division also analysed an average sample of soil and determined that 87 percent of it contained sand.633 Further, a Japanese description of Itu Aba in 1939 notes that it “is covered by black soil.” 634 None of these observations is particularly insightful with respect to the agricultural potential of the feature.

595. Recent scientific evidence is varied. A 1947 Chinese study discusses two types of soil on Itu Aba and concludes that the more rich is “lush with morning glories; the coconut and banana trees are doing well, but not many have been planted; the castor oil plant grows very well and is unusually prosperous.”635 The same study notes that “approximately 250 meters to the east of the radio station and slightly to the north, in the Barbados nut shrubs, there is a small vegetable patch of only slightly over 2 mu [1,333 square metres]; the vegetables are growing decently but there is pest damage.” 636 Another description from 1994, apparently drawing on scientific accounts, describes the soil on Itu Aba in the following terms:

Sand layers accumulated in the central area of the island. Layers of bird feces reach30 centimeters. The lower layers are lithified bird feces. Especially in the western area of the island, layers of bird feces reach 1 meter. In many cases, humus soils are on these layers, and thus people may cultivate crops.637

596. The Tribunal also takes note of the Philippines’ caution that present-day agriculture may involve the use of imported soil,638 as well as the expert evidence provided by the Philippines that the capacity of the soil on Itu Aba to sustain extensive cultivation is low, as would be the output of such cultivation.639 Ultimately, the Tribunal considers the most instructive evidence to be the clear indication that fruit and vegetables were being grown on Itu Aba during the period of Japanese commercial activity (see paragraph 589 above and paragraphs 610 to 611 below). The Tribunal sees no evidence that this would have involved the importation of soil and concludes that it most likely reflects the capacity of the feature in its natural condition. At the same time, the Tribunal accepts the point that the capacity for such cultivation would be limited and that agriculture on Itu Aba would not suffice, on its own, to support a sizable population. The Tribunal also considers that the capacity of other features in the Spratly Islands would be even more limited and that significant cultivation would be difficult beyond the larger and more vegetated features of Itu Aba and Thitu.

597. The record before the Tribunal indicates the consistent presence of small numbers of fishermen, mostly from Hainan, on the main features in the Spratly Islands. A footnote to the description of Tizard Bank in the 1868 edition of the China Sea Directory reads as follows:

Hainan fisherman, who subsist by collecting trepang and tortoise-shell, were found upon most of these islands, some of whom remain for years amongst the reefs. Junks from Hainan annually visit the islands and reefs of the China Sea with supplies of rice and other necessaries, for which the fishermen give trepang and other articles in exchange, and remit their profits home; the junks leave Hainan in December or January, and return with the first of the S.W. monsoon. The fishermen upon Itu-Aba island were more comfortably established than the others . . . .

599. A report of the French arrival on Itu Aba in 1933 recorded “Chinese from Hainan managed to survive on the cays (small rocky islands surrounded by coralliferous reefs) from turtle and sea cucumber fishing, as well as a small area planted with coconut and banana trees and potatoes.” 644 A later visit in 1936 by the Division Botanique à l’Institut des Recherches Agronomiques de L’Indochine recorded that “[t]he only persons on the island seem to be at present, the Chinese and Japanese fishermen that the ocean-going junks drop off and pick in the course of their seasonal journeys from China–Singapore and from Japan–Singapore and back.”645 Finally, a French Government report from 1939, describing the Spratly Islands, noted that “[t]here is no doubt that since time immemorial, these islands were frequented and even temporarily inhabited by the Chinese, Malay, and Annamite fishermen that haunt these parts.”646

600. In 1951, HMS Dampier reported on a visit to Itu Aba and described meeting a significant number of Filipinos, as well as individuals who appeared to be from Hainan, although their purpose for being at Itu Aba is reported as being unclear and no fishing gear was observed.647

601. Taken as a whole, the Tribunal concludes that the Spratly Islands were historically used by small groups of fishermen. Based on the clear reference from 1868, the Tribunal also accepts that some of these individuals were present in the Spratlys for comparatively long periods of time, with an established network of trade and intermittent supply. At the same time, the overall number of individuals engaged in this livelihood appears to have been significantly constrained.

602. The 1941 edition of the Japanese Pilot for Taiwan and the Southwest Islands, providing sailing directions for the South China Sea, includes a general introduction, covering Japanese commercial activities in the area between 1917 and 1939 in the following terms:

The group was first explored by MATSUJI HIRADA in June 1917; next the RASASHIMA Phosphate Co. (now the RASASHINA WORKS Co.) made 3 expeditions between the years 1918 to 1923 and although excavations were planned at [Itu Aba] and [Northeast and South-West Cay] operations were suspended in 1929 owing to the business falling off and all personnel were withdrawn. Thereafter in 1937 the Kaiyo Kogyo Kabushiki Kaisha (Ocean Exploration Industrial Co. Ltd.) commenced an investigation of the industrial resources of these islands and at the same time conferred a public benefit generally by weather reports communicating with fishing vessels, replenishing supplies, assisting in shipwrecks, &c. Most recently the Nanyo Kohatsu Kabushiki Kaisha (Southern Ocean Enterprise Co. Ltd.) has commenced plans for the working of phosphates and the Hakuyo Suisan Kabushiki Kaisha (Ocean Exploration Marine Products Co. Ltd.) for marine produce; since then personnel of both companies reside continuously at [Itu Aba] the total number of persons being about 130 including officials.

On the basis of this history the Imperial Government formally proclaimed possession of this group on 30th March, 1939. Nevertheless the French Government in July, 1933, upon the discovery of new islands and islets in the adjacent South China Sea proclaimed possession of the [Southern Archipelago]; at the present time near the E. end of [Itu Aba] there are about 20 persons staying permanently who are said to belong to the French Indo-China Registered Company.

606. A similar mining operation was established on Itu Aba in 1921 and later described as follows:

The mining of phosphate ore started to operate in 1921 in full swing. On Long Island, which is the base for the mining, various facilities for the mining business were eventually prepared: for example, dormitories, warehouses, offices, a clinic, an analysis room, a weather station, etc. were built; a jetty of 84 KEN length to get goods on board was constructed on the sea; and tracks were made in the mining area. At that time about 200 Japanese people lived there, and it is said that the number reached about 600 by 1927. During this period, the company mined 25,900 tons of guano, and the value of it was about 727,000 yen.

608. By 1933, however, mining operations had apparently ceased. When the French briefly occupied Itu Aba that year it was deserted, and described as follows:

The island was deserted, but two occupants had left their mark: cement wells, remains of an iron jetty, rusted rail tracks on the embankment, and a pile of abandoned phosphates bore witness to a Japanese enterprise dating back to 1925; then a hut made out of foliage, a well maintained potato field, a little altar with a votive tea light and stick jars to the Lar gods of the Chinese fishermen. A board hung on a hut, covered with characters which could roughly be translated as “I, Ti Mung, Chief of the Junk, come here in the full moon of March to bring you food. I found nobody, I left rice in the shelter of the rocks and I left.”

610. By 1937, however, a new Japanese commercial presence had been established on Itu Aba in the form of the Kaiyo Kogyo Company, engaged in the fishing industry. This is confirmed in the account of HMS Herald’s visit to the area in that year, which includes the description that: [Omitted]

611. A Japanese account from 1939 confirms the same facts:

In the early Showa era, the area around the island became the major fishing places for tunas and shellfish based on Kaohsiung City, and the Japanese were active there. They got water in Long Island (the Itu Aba Island) and North Danger (so called the Danger Island). In other words, at that time, the place was considerably developed as a fishery advanced base of Kaohsiung, and thus the fishermen of Kaohsiung feel that it is strange for the government to announce that the place will be incorporated into Kaohsiung after all these years. After that, Kaiyo Kogyo Company was established as suggested by Mr. Sueharu Hirata, who is a resident of Kaohsiung City in 1935. The purposes of the company are fishery and mining phosphate ore. The company is based in the Long Island having employees there and has operated business to date.656

612. During the war, Itu Aba was used as a base of operations by Japanese forces and bombed by aircraft of the U.S. Navy in May 1945. HMS Dampier’s account of a visit to the island in 1951 records “the remains of what must have been a flourishing concern, before it was demolished by shellfire and/or bombing.”658 Photographs taken during the visit also depict a number of large concrete buildings, although whether these were of military construction or the remains of installations built by the Kaiyo Kogyo Company, or another commercial concern, is unclear.

613. Following the war, a Chinese survey of Itu Aba noted the poor mineral content of guano extracted from the Spratly Islands—an issue that may well partially explain the failure of the Rasashima Phosphate Company’s operations in the 1920s—and identified fisheries as the mostly likely potential commercial use of the islands:[OMITTED]

614. There is, however, no evidence of any commercial fishing operation having been established in the Spratly Islands since 1945. Nor, in light of the advances in shipbuilding and fishing technology since that date, does the Tribunal see that a base of operations on a small, isolated feature such as Itu Aba would be economically necessary, or even beneficial. Rather, the historical record indicates only a short period of activity by Thomas Cloma of the Philippines and his associates (who may well have been the Filipinos encountered on Itu Aba in 1951 by the crew of HMS Dampier), who sought to devise a commercial scheme for the islands.660 There is no evidence, however, that Mr. Cloma or his associates ever took up residence in the Spratlys or succeeded in deriving the least economic benefit from them. Malaysia has also established a small resort and scuba diving enterprise on Swallow Reef, but this operation is only possible due to significant land reclamation activities that have enlarged the small high-tide rocks on the reef; it does not represent the natural capacity of the feature. Otherwise, human activity on the Spratly Islands appears to be entirely governmental in nature.

618. For the Tribunal, the criterion of human habitation is not met by the temporary inhabitation of the Spratly Islands by fishermen, even for extended periods. As discussed above at paragraph 542, the Tribunal considers human habitation to entail the non-transient inhabitation of a feature by a stable community of people for whom the feature constitutes a home and on which they can remain. This standard is not met by the historical presence of fishermen that appears in the record before the Tribunal. Indeed, the very fact that the fishermen are consistently recorded as being “from Hainan”, or elsewhere, is evidence for the Tribunal that they do not represent the natural population of the Spratlys. Nowhere is there any reference to the fishermen “of Itu Aba”, “of Thitu”, or “of North Danger Reef,” nor is there any suggestion that the fishermen were accompanied by their families. Nor do any of the descriptions of conditions on the features suggest the creation of the shelter and facilities that the Tribunal would expect for a population intending to reside permanently among the islands. Rather, the record indicates a pattern of temporary residence on the features for economic purposes, with the fishermen remitting their profits, and ultimately returning, to the mainland.

619. The same conclusion holds true with respect to Japanese commercial activities on Itu Aba and South-West Cay... [omitted]

620. Finally, the Tribunal does not consider that the military or other governmental personnel presently stationed on the features in the Spratly Islands by one or another of the littoral States suffice to constitute “human habitation” for the purposes of Article 121(3). These groups are heavily dependent on outside supply, and it is difficult to see how their presence on any of the South China Sea features can fairly be said to be sustained by the feature itself, rather than by a continuous lifeline of supply and communication from the mainland...[omitted]

624. Applying this standard, the history of extractive economic activity does not constitute, for the features of the Spratly Islands, evidence of an economic life of their own. In reaching this conclusion, however, the Tribunal takes pains to emphasise that the effect of Article 121(3) is not to deny States the benefit of the economic resources of small rocks and maritime features. Such features remain susceptible to a claim of territorial sovereignty and will generate a 12-nautical-mile territorial sea, provided they remain above water at high tide. Rather, the effect of Article 121(3) is to prevent such features—whose economic benefit, if any, to the State which controls them is for resources alone—from generating a further entitlement to a 200-nautical-mile exclusive economic zone and continental shelf that would infringe on the entitlements generated by inhabited territory or on the area reserved for the common heritage of mankind.

625. The Tribunal concludes that Itu Aba, Thitu, West York, Spratly Island, South-West Cay, and North-East Cay are not capable of sustaining an economic life of their own within the meaning of Article 121(3). The Tribunal has also considered, and reaches the same conclusion with respect to, the other, less significant high-tide features in the Spratly Islands, which are even less capable of sustaining economic life, but does not consider it necessary to list them individually.

626. The Tribunal having concluded that none of the high-tide features in the Spratly Islands is capable of sustaining human habitation or an economic life of their own, the effect of Article 121(3) is that such features shall have no exclusive economic zone or continental shelf.

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