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2016-07-13

仲裁文中有關 Itu Aba

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.


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.427


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.428
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


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.431


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”; 434 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

6 則留言:

  1. 馬英九的國際法層次比俺還遜。要構成島嶼的條件,除了昌出海平面,還要有淡水,這都僅是必要條件,太平島都符合。但這是否足夠被稱為島?嘿嘿,還差一點點,必須除了這兩個條件之外,還有形成自給自足的經濟生活條件,加上這一項,那麼被稱為島的資格才完備。

    啥叫自給自足的經濟生活條件?若淡水不夠兩人以上使用,那麼就不構成自給自足的經濟生活條件。太平島目前有住人,但天然資源無法維持人類群居的功能,需要靠海水淡化,食物也需要靠台灣補給,所以根本不具不具自然島嶼生活條件,故就不能享有200經濟海域。

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  2. 這有無兩百浬經濟海域目前對台灣影響暫時看不出,但是接受這樣的仲裁就等於接受Taiwan Authority of China,明白一點就是你是中國下的治理當局,抹掉了舊金山和約的處分,所有締約國的權利,更一舉將台灣的地位推到中國之下。美國老大不經人提點,不出來講話等於和約諦約國的權益被聯合國的某個單位白白犧牲。Taiwan Governing Authority 佔領的太平島的權益應該屬於舊金山和約諦約國所共有的,但由TWGA所執行佔領。

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  3. 樓上的看法建立在一個中國的前提之下
    雖然很難說仲裁法院的立場不是一個中國
    但版主特別標出來 the Taiwan Authority and China's interests are "aligned" (版主的眼睛好厲害)
    可以解釋為這裡有兩個實體

    換句話說,就是Taiwan Authority of China←這個China指的不見得是PRC

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  4. 我也搞錯了,仲裁法庭不是聯合國的某個單位,因此只要簽約國狀告國際法庭有關仲裁法庭擅自擴權(雲程大下篇) 做出有關舊金山和約對Spratly Islands的處分就。。。。

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  5. 用Authority一字
    似乎也可含示china 不享有台灣主權

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  6. 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

    這段才有趣,簡單翻譯是:台灣當局為了配合他(馬英九)的主張,才在2016搞出第一位民間人士的住家登記,為的是誇張太平礁太平礁是具有經濟生活自足的島嶼性質。

    直接明顯地打了馬英九的臉,又大又響。

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