Dibal, which both parties agreed was a
low-tide elevation. (101)
"A
low-tide elevation is below water during high tide and therefore in legal sense a
low-tide elevation does not generate any maritime entitlement whether in the context of 12 nm territorial sea or 200 nm exclusive economic zone."
Low-tide elevations do not generate entitlements to a territorial sea, exclusive economic zone, or continental shelf.
The Palace official said Professor Philippe Sands argued that Mischief Reef, Second Thomas Shoal, Subi Reef, Mckennan Reef and Gaven Reef are all
low-tide elevations under the United Nations Convention on the Law of the Sea (UNCLOS) and as such, are not entitled to its own territorial sea, exclusive economic zone (EEZ) or continental shelf.Sands also presented to the Tribunal the construction activities on these features done by China, and asserted that these changes cannot be the basis of additional maritime entitlements, she said.
With regard to
low-tide elevations (LTEs), that is, features that are submerged at high-tide but uncovered at low-tide, the Tribunal noted that, in keeping with Article 13(2), an LTE generates no territorial sea of its own except where it falls wholly or partially within the breadth of a territorial sea generated by an above high-tide feature or the mainland.
The award applied these four zones to four kinds of geologic features in the SCS: 1) '
low-tide elevations' and 2) 'submerged banks,' both being below water at high tide, generate no maritime zones; 3) 'rocks,' being above water at high tide, are considered land territory but generate only a TS; and 4) 'islands,' which in their natural condition can sustain human habitation, generate all four zones.
The tribunal agreed that Scarborough Shoal, located off the shore of Zambales, and three features in the Spratlys are 'rocks,' but disagreed with the Philippines' claim that Gaven Reef North and McKennan Reef (located also in the Spratlys) were
low-tide elevations; instead, it said they are 'rocks' also.
The panel meanwhile ruled that Zamora (Subi) Reef, Hughes Reef (no local name indicated), Panganiban (Mischief) Reef, the Ayungin (Second Thomas) Shoal, and the Recto (Reed) Bank were 'submerged at high tide in their natural condition,' hence
low-tide elevations that do not generate any maritime entitlement.
If they are neither islands nor rocks, but merely
low-tide elevations or submerged banks, they would be incapable of generating any such entitlements.
For instance, the two should jointly send ships in transit within 12 nautical miles of
low-tide elevations that have been turned into artificial islands by China, such as Mischief Reef and Subi Reef, and other claimants, such as the Vietnamese-occupied Discovery Great Reef, the report's authors wrote.
Specifically, the Philippines is asking that Scarborough Shoal, and eight maritime features in the Spratly Island Group be declared mere rocks or
low-tide elevations or submerged banks that do not generate any exclusive economic zones (EEZ) or continental shelf (CS).
If they are neither islands or rocks, but merely
low-tide elevations or submerged banks, they would be incapable of generating any such entitlements.
