As defined under the United Nations Convention on the Law of the Sea (UNCLOS) Article 13, Low-Tide Elevation are naturally formed areas of land surrounded by water, which are usually above the water level during low tide but are submerged amid high tides.
In contemporary times we see the term low-tide elevation garner attention that is mainly due to the activities conducted by the Chinese in the South China Sea where it has been building artificial islands. Now the question that arises is will the Chinese sovereignty increase in the South China sea by boosting their territorial waters and Exclusive Economic Zone (EEZ) if they consider these artificial islands as the baseline? In order to understand this, we need to first grasp the various rules and judgments in regards with the role of an LTE.
Interpreting the Stipulation
As per the UNCLOS if an LTE is located within the territorial sea from the mainland or an island, its low-water line maybe used as the baseline for measuring the breadth of the territorial sea. But if the LTE is situated wholly outside the breadth of the territorial sea from mainland or an island, these LTE’s have no territorial sea, EEZ or continental shelf of their own and are considered a part of the sea bed.
This was noted in the case of Qatar v. Bharain 2001 where the crux of their dispute was regarding two LTEs Fasht ad Dibal and Fasht al Azm. In this case, Fasht ad Dibal was situated within the overlapping territorial seas of both Qatar and Bahrain and it was noted by the ICJ that in such a case neither state could use its low water line as baseline for delimitation. This was the first precedent where an international tribunal gave effect to an LTE in maritime delimitation.
Generally, LTEs cannot be used for drawing straight baseline, but there is a certain exception that in case if lighthouses or similar installations which are permanently above sea level are built over them then the LTE can be used as a basepoint, making the waters on the landwards side form part of internal waters.
The Case in South China Sea
In the case of the South China Sea, the Chinese have built infrastructure beyond their territorial sea and have went on to build artificial structures not on naturally occurring land. Thus, we see that in the 2016 Permanent Court of Arbitration Philippines v. China it was held that the Chinese historic claim over the Nine Dash Line is illegal as most of the features China built are on LTE’s or rocks while their artificial islands do not generate maritime zones and that construction cannot create sovereignty. The tribunal also affirmed that the status of a feature must be determined by its natural condition before any significant human modification.
Strategic Exploitation of the Loopholes
LTEs are natural phenomenon which are meant to have a minimal legal value but states have often attached strategic values by exploiting the loopholes, but how do these loopholes look like?
Article 7 (2) of the UNCLOS mentions that an LTE can be counted as a basepoint if a permanent installation is built on it and is above water at all times, but it does not define what counts as permanent or similar installation which has led to building military and civilian infrastructure such as the Chinese building runways. Even though a feature was originally submerged, states build artificial islands now although the UNCLOS mentions that these islands do not have any territorial sea nor do they generate EEZ but a state building a military base becomes a territory of functional sovereignty.
Another issue is that states can use data from different points in time to prove that a feature was a natural land, similarly there is no universal fixed level of sea surface that can be used to determine when a feature is above water. One of the major problems regarding the issue of LTE comes to the basic fundamental question in the discipline of international relations is that who enforces the rules? The lack of an overarching authority to enforce rules has left compliance completely dependent on the political will of the country.
Conclusion
This has left the stronger countries unchecked as can be seen in the case of China that even post the 2016 sea tribunal ruling, it is still continuing to engage in unlawful activities in the South China Sea. Climate Change in the world today is seeping in at a very fast pace, natural phenomena cannot be predicted but it cannot be avoided either. What will be the role of LTEs in the changing landscape of the world when the sea level is rising? This requires a nuanced approach in defining and addressing LTE.
