Prospects for satellite imagery of insular features and surrounding marine habitats in the South China Sea

Marine Policy 45 (2014) 146–155

Contents lists available at ScienceDirect

Marine Policy journal homepage: www.elsevier.com/locate/marpol

Prospects for satellite imagery of insular features and surrounding marine habitats in the South China Sea Youna Lyons n National University of Singapore, Centre for International Law, Bukit Timah Campus, 2nd Storey, Block B, 469 Bukit Timah Road, Singapore 259756, Singapore

art ic l e i nf o

a b s t r a c t

Article history: Received 30 June 2013 Received in revised form 3 December 2013 Accepted 12 December 2013 Available online 9 January 2014

This paper investigates the extent to which remote sensing data can contribute to the management of two parallel crises in the South China Sea (SCS); first the ongoing disputes related to islands and related maritime boundaries and second the degradation of the marine environment and the decrease in fish stocks. It demonstrates that remote sensing surveys are the only means to lawfully collect independent and verifiable geographic data on the disputed features without the need to consult all the claimants and thereby add to regional frictions and tensions. These surveys can contribute to the determination of whether these features are submerged or above water at high tide and what their physical characteristics are. This would inform the application of the Law of the Sea and help determine entitlements to maritime zones and thus access to resources. The other category of uses for remote sensing surveys which is explored is the identification and classification of marine habitats and the building of a biogeographic platform. This paper shows the limits created by unavoidable uncertainties in the interpretation of satellite imagery. However, many benefits outweigh the downsides: the potential for national and regional marine spatial planning, for the prioritization of marine environments in need of management, for the implementation by the States bordering the SCS of the international treaties which they have ratified and for ecological monitoring. & 2014 Elsevier Ltd. All rights reserved.

Keywords: South China Sea Remote sensing Satellite imagery Maritime dispute Marine habitat Marine spatial planning

1. Introduction With more satellites being sent into space and increased accessibility to satellite imagery, remote sensing surveys are transforming scientific knowledge of remove insular features. They consist in the sensing of the Earth0 s surface from space by making use of the properties of electromagnetics waves emitted, reflected or diffracted by the sensed objects, for the purpose of improving natural resources management, land use and the protection of the environment [1]. As a result, they provide a greater degree of visual clarity of what an island or rock may look like and of their location relative to each other. They also provide access to far more detailed information on insular features including land uses, surrounding water depth and underwater geomorphological and ecological features including marine habitats. Oil spills can also be spotted and environmental change can be monitored. Satellite information can also contribute to changing perceptions and mindsets on whether a particular offshore feature can be correctly termed and classified as an island, a rock, a sand bank, a cay or a reef awash for example. Distinguishing between these distinct types of features is important because they possess different capacities to generate different maritime boundaries. Satellite images n

Mobile: þ 65 9005 2437. E-mail address: [email protected]

0308-597X/$ - see front matter & 2014 Elsevier Ltd. All rights reserved. http://dx.doi.org/10.1016/j.marpol.2013.12.008

present on open access on the internet suggest that the combined surface area of the 13 largest features in the Spratlys total less than two square kilometers of dry land [2]. This is less than half of Sentosa Island, a small island attached to Singapore Island. The largest island of the Spratlys, Itu Aba, is itself less than half a square kilometer or around 50 football fields. Such presentation of the offshore features as very small areas of land lost at sea may decrease the perceived legitimacy that such islands may be entitled to the same maritime zone than the opposing mainland States (Fig. 1). This paper investigates the contributions that this source of information can make in the South China Sea (SCS) to two parallel crises in facilitating the application of relevant international treaties, which have been ratified by all the States bordering the SCS. The first crisis is the dispute over features in the SCS and the maritime zones they may generate which determine access to living and non-living resources. The second crisis is the management of the marine and coastal habitats in the SCS. With respect to maritime disputes related to islands, satellite imagery can inform answers to at least three key questions which arise in this discussion and facilitate the application of the United Nations Convention on the Law of the Sea (UNCLOS) [3]:  which features are naturally formed and which are man-made;  which features are above water at high tide;

Y. Lyons / Marine Policy 45 (2014) 146–155

147

Fig. 1. South China Sea.

 what vegetation cover (if any) the feature possesses as well as indicators of land use. Parallel to the on-going maritime disputes, the status of the marine environment in the SCS has been degrading for decades and marine scientists have been unsuccessful to date [4] in their call for a regional solution although coastal States have acknowledged the difficulties and expressed the wish to improve the situation [5]. While remote sensing information cannot directly solve the political and institutional components of this environmental crisis, they can bring new spatial data on the location of valuable coastal and marine habitats and species assemblages which are critical to the coastal economies and the protection of marine biodiversity and facilitate the application of the 1992 Convention on Biological Diversity (CBD)

[6] and of relevant Conventions and regulations of the International Maritime Organization (IMO). Such information can in turn provide a basis for improve the management of the marine environment in these areas. Prior to exploring the potential benefits of remote sensing surveys to these two main current issues in the SCS, this paper discusses the advantages presented by satellite imagery over field and aerial surveying.

2. Advantages of satellite imagery The use of satellite imagery avoids sensitive issues of territorial sovereignty which other methods such as aerial surveys or ship

148

Y. Lyons / Marine Policy 45 (2014) 146–155

surveys (legally termed ‘Marine Scientific Research’ or MSR) may generate. Unlike remote sensing surveys, MSR are regulated in UNCLOS. Furthermore, they cannot be conducted over the land, territorial sea [6] or exclusive economic zone [7] of a coastal State without prior authorization. The rules applicable to MSR are provided for in UNCLOS. The only difference in the consent regime between these two maritime zones is the discretion which can be exercised by the coastal State in granting or denying consent [8]. Aerial surveys, or surveys based on data collected from an aircraft, fall under a distinct regime dominated by State sovereignty. According to the 1944 Chicago Convention on Civil Aviation [9], every State has complete and exclusive sovereignty over the airspace above its territory [10]. With respect to the use of the airspace over maritime zones, the rules are set in UNCLOS according to which sovereign States also have sovereignty over the airspace over their territorial sea [11]. However, the rules applicable to aerial surveys over exclusive economic zones are subject to conflicting readings and interpretation of UNCLOS provisions with respect to the rights of coastal States in their exclusive economic zone and the parallel rights of other States in this zone [12]. On one hand, UNCLOS recognizes the sovereign rights of coastal States to the resources of the exclusive economic zone [13] while also providing for an obligation of ‘due regard’ to the rights of other States [14]. On the other hand, UNCLOS grants the right of overflight to all States over other States0 exclusive economic zone as well as a right to other international lawful uses of the sea related to this freedom in this zone, such as those associated to the operation of aircraft and compatible with other provisions of this convention [15]. Aerial surveys of above and below water features and habitats in the SCS would involve the overflight of land areas subject to conflicting sovereignty claims as well as the surrounding potential territorial seas and coastal States exclusive economic zones. Such surveys would thus require authorization from claimants and coastal States. The on-going tensions between claimants of the features prevent any optimism in the likelihood of them granting the required authorization regarding surveys conducted either from the water or the air. Ocean observation through remote sensing surveys shares a common goal with MSR and aerial surveying when it is used to gather oceanographic data. However, it presents two very distinctive features. First, the data is gathered without direct physical contact with the ocean. Second, the satellite through which the data is collected is located beyond air space, in outer space. This second characteristic triggers the application of international space law, including the freedom of outer space principle which stems from the idea that it would not be logical or desirable to extend a State0 s sovereignty beyond the air space above its territory [16]. This principle which is considered to have become part of customary international law has also been incorporated in the 1967 Outer Space Treaty [17]. The non-ratification of the treaty by coastal States of Asia is thus not an obstacle to the application of this principle of freedom of the outer space [18]. It follows that coastal States of the Southeast Asia cannot validly oppose the use of the outer space to collect imagery relating to their land territory, territorial sea or exclusive economic zone. However, the freedom of outer space principle only pertains to the freedom of exploration and use of the outer space and does not elaborate on the status of data which would be collected in the exercise of this freedom, nor provides guiding rules on the rules applicable to the distribution of such data. Nevertheless, the 1967 Outer Space Treaty provides that this freedom must be exercised in accordance with international law [19], without discrimination of any kind and on a basis of equality [20]. The application of these principles sparked a controversy opposing mostly developed States to developing States (joined by France

and the Soviet Union) with respect to the dissemination of remote sensing data obtained without consent of the sensed State, especially where they relate to natural resources of the sensed State [21]. Debates over this controversy took place within the United Nations Committee on the Peaceful Uses of the Outer Space in the 700 s. The position of many developing States, France and the Soviet Union was that information relating to natural resources should not be disseminated without the consent of the State concerned [22]. By contrast, the United States and some other States advocated for the unrestricted use of satellite data [23]. A consensus was reached in the 1986 Resolution of the United Nations General Assembly containing the Principles Relating to Remote Sensing of the Earth from Outer Space (the Principles relating to Remote Sensing) [24]. This text reiterates the principle of full and permanent sovereignty of all States and peoples over wealth and natural resources [25]. However, it does not require the consent of the sensed State prior to the dissemination of the imagery obtained with a satellite [26]. The launching State retains jurisdiction and control over its satellite [27] either directly or through national rules and regulations if a private third party under its control owns rights over the imagery [28]. In the context of a remote sensing survey of the geographic features in the SCS, the legality of remote sensing imagery collection of the features and their potential territorial sea and exclusive economic zone is therefore undisputable, irrespective of the State or of the nationality of the entity which may own the rights over this imagery. The sale and purchase of this imagery by any of the claimants or by a third party is also lawful and does not require the consent of the States, the territory of which may be the subject of the imagery. Claimants to the SCS features cannot object to such acquisition. The fact that it is designed for academic research and is to be released, as open access data for the benefit and in the interest of all countries is an additional argument to deflect potential political tensions resulting from national sensitivities, though not a legal requirement. Further, such use would also be in the spirit of the second of the Principles relating to remote sensing which provides that remote sensing activities shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic, social or scientific and technological development. Another advantage of remote sensing surveys is that, unlike ship based surveys (or MSR) which can only be undertaken at certain times of the year to avoid the inclement weather of the monsoonal cycles, the weather only affects the selection of images used for the survey as those with too much cloud cover will not be selected. The weather does not disrupt the study nor limit the timeframe within which it can be done. Finally, such data source, if shared among the scientific community, could constitute verifiable primary information and remove the mistrust on asymmetrical evidence. It could thus be a sound and balanced base for negotiations on maritime claims over the features and to discuss measures for marine environmental management.

3. Relevance of remote sensing surveys to maritime boundaries disputes: distinguishing islands from low tide elevations and submerged features 3.1. Categories of features under UNCLOS International law provides for clear rules to solve maritime boundary disputes. However, their application to the facts requires detailed data and an interpretation of these data. This paper shows how remote sensing surveys can bring more clarity and foreseeability in the application of international law.

Y. Lyons / Marine Policy 45 (2014) 146–155

The distinction between an island (or a rock) and a low-tide elevation is defined in UNCLOS which has been ratified by all the claimants in the SCS [29]. This distinction is critical as while the former is land subject to a claim of sovereignty and maritime zones, the latter is not. To qualify as an island (or a rock), a feature, which is surrounded by water, must be a naturally formed area of land and above water at high tide [emphasis added] [30]. If the feature only dries at low tide, it cannot qualify as an island. In such a situation, it would qualify as a low-tide elevation [31]. By contrast, submerged features remain below sea level during the entire tidal cycle. UNCLOS provides for a distinct status to each of these three categories of features. An island (or a rock) can generate maritime zones but low-tide elevations (in their own rights) and submerged features cannot. It is noted that UNCLOS does not indicate a reference time for a naturally formed feature to be considered as above water at high tide. Can a naturally formed and naturally sinking atoll qualify as an island under UNCLOS once it is no longer above water at high tide? The legal treatment of seasonal features, disappearing features and newly appearing features as a result of geological activities, sea level rise or other processes which are out of human0 s control are the subject of much debate [32]. Of the 130 or more features in the Spratlys, the various reports available suggest that of the order of 25% to 30% of these features are above water at high tide [33]. Unfortunately, only few of these features can be found in Google Earth. Satellite imagery from commercial satellites could thus limit the list of features which may meet the double test of being naturally formed areas of land and being always above water at high tide though the observations made may only be true at the time of capture of the satellite imagery. 3.2. A naturally formed area of land Remote sensing surveys can inform the question of whether the feature is naturally formed in providing detailed information with respect to the shape of the land area of the feature, which, where it has been reclaimed, tends to exhibit noticeably different coastal fronts. Such coastal land reclamation can also be deduced from the comparison of two or more satellite images taken over a period of time. Similarly, coastal works designed to limit natural erosion are often visible [34]. Satellite images can also show man-made structures such as the tower located on South Reef (111230 15.20″N and 1141170 54.71″ E) or the installation located on Subi Reef (101540 47.5″N and 1141030 41.5″), both visible on Google Earth. However, such observation of the pan-sharpened color image at the time of the satellite capture is insufficient to indicate whether the man-made installation or structure was above water at high tide when the construction started [35]. Such a query is difficult to answer without archive of satellite images taken prior to the construction, which, in the case of South Reef tower which appears to have been built in the 80s is unlikely. However, as discussed in Section 3.4.2 below, calculation of the surrounding bathymetry of the man-made structure and parallel consultation of the tide time table can help determine whether this structure is the only part of the feature which stands above water at high tide. If confirmed, this would suggest that at the time it was built, the feature was at the best a small section of reef above water at high tide. Further, coastal works against natural erosion or to reclaim land often trigger a change in coastal hydrodynamic processes which in turn can result in steeper coastal banks. Calculation of the surrounding bathymetry of offshore features through remote sensing can thus also valuably contribute to identifying such coastlines which are not naturally formed (see also Section 3.4.2 below).

149

3.3. Possibility to sustain habitation or economic life of its own According to UNCLOS, ‘rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’ [36]. This provision comes in contrast with the general status of islands which enjoys the same maritime zone entitlements as mainland [37]. The question of distinguishing between islands capable of generating an exclusive economic zone and continental shelf rights and “rocks” which cannot has excited considerable and conflicting scholarly commentary. Van Dyke and Brooks propose that the key factor must be whether the island can in fact support a stable population. However they also add that ‘islands should not generate ocean space if they are claimed by a distant absentee landlord who now desires the island primarily because the ocean resources around the island’ [38]. This view is not shared by all. Charney, for example, presents the opposite view that the ‘economic life’ may include exploitation of the living or mineral resources found in the territorial sea and not be limited to classical agrarian concepts of viability [39]. Other authors also consider that islands obtaining external support may still qualify as islands able to sustain human habitation or economic life of their own or that islands which are unsuitable to an economic life of its own at some early stage may become so following the discovery of new economically exploitable resources [40]. States, however, tend to interpret UNCLOS as to optimize the extent of their own maritime rights and jurisdiction. Satellite imagery does not purport to solve this legal discussion. It only aims at informing it in bringing information on the human, biological and physical characteristics of an above high tide insular formation, including the variety of criteria proposed by scholars such as soil fertility, water sources, existing human infrastructure and generally any economic resources. Even more so than ocean applications, satellite imagery is indeed well known for its land use surveying applications that are particularly useful for this kind of investigation [41]. However, the detail of the information obtained will depend on the resolution of the satellite images. Medium resolution images can show vegetation coverage but will be outperformed by high resolution images with respect to the observation of habitation and other human infrastructures such as those which are visible on Nanshan Island [42]. 3.4. Above water at high tide Remote sensing surveys can determine whether the feature under scrutiny is above or below water at the time the satellite image was taken. When receiving solar radiations, different land cover and water absorb and reflect differently at different wavelengths. Different formations and physical features can be differentiated by their spectral reflectance signatures in the remotely sensed images and transformed in images of the earth0 s surface. Short-waves infrared for example get strongly absorbed in water and can thus detect a shallow atoll that, on the pan sharpened color image [43], may look like a ring of sand surrounding a light blue lagoon. The infrared image can demonstrate whether the atoll is fully submerged or not. However, such observation that a feature is above at the time the satellite image is taken is not necessarily sufficient to determine that this feature is above water at all times. It will be the case if a feature presents a substantial vegetation cover given that a feature submerged at high tide, even occasionally, is unlikely to have developed terrestrial vegetation visible on satellite imagery [44]. However, if a satellite image shows a barren sand bar, cay or reef just above water, complementary information is necessary to determine whether this area of land is always above water or whether it is submerged at high tide.

150

Y. Lyons / Marine Policy 45 (2014) 146–155

Across the world oceans, high and low tides generally occur every day once or twice, depending on the geomorphology of the basin and its location. Tidal variations can be close to nil or exceed 10 m. The tides in the SCS are among the most complex in the world [45]. In addition to a varying bathymetry, bays, gulfs and straits, the ocean circulation system in the SCS crosses the equator. These extraordinary features result, in some locations, in a changing semi-diurnal and diurnal pattern of the tidal cycle in the course of each year or even in the course of one month (a moon cycle) and is not geographically homogeneous. The west side of the basin is generally dominated by a semi-diurnal tidal cycle, whereas the east side is more mixed [46]. The tidal range also varies from close to nil to a predicted 2 m during spring tides in the northern part of the Spratlys [47]. Given that the features generally present very little elevation (being mostly sand banks and coral atolls and reefs), the determination of which high tide and low tide should be taken into account is particularly critical yet complex.

3.4.1. Possible definitions of high and low tide UNCLOS does not provide a legal definition nor any indication on the ‘high tide’ to be taken into account in the application of the provision on islands, rocks and low tide elevations [48]. However, it refers in several occasions to the low water line ‘as shown by the appropriate symbol on charts officially recognized by the coastal State’ [49]. The determination of low tide is thus left to the coastal State. However, as previously mentioned, the tidal range and cycles are geographically variable throughout the SCS. Some days, two high waters and two low waters occur in different parts of the basin, often of unequal range. Other days, only one tidal cycle occurs [50]. The question thus arises of determining whether low tide should be based on a general average of all the low waters (Mean Low Water or MLW) or on the mean of the lowest low waters (Mean Low Low Water or MLLW) or on the lowest of all the low tide of an astronomical cycle (Lowest Astronomical Tide, LAT [51]) or on another combination of low tides. Choosing LAT results in increasing the potential occurrence of low tide elevations as more submerged features may be exposed at this level, even if only very rarely. Conversely, the more liberal choice of MLW or even mean sea level would generally limit the potential occurrence of low tide elevations (except perhaps in the situation of a straight and deep coast line). However, should the corresponding high tide be preferred, the effect would be opposite. The choice of HAT (Highest Astronomical tide) as reference high tide would decrease the chance of a small sand bank or cay being above water at high tide and thus qualifying as an ‘island’ under UNCLOS. However, there is no clear homogeneous practice in the choice made by the States bordering the SCS for the low water line used as a reference in tide tables and nautical charts (‘vertical datum’, ‘tidal datum’ or ‘chart datum’). Though they seem generally conservative, it is unclear whether they have adopted or intend to adopt the LAT and HAT recommended by the International Hydrographic Organization (IHO) [52]. Malaysia0 s tide tables use the Indian Spring Low Water, which is below Mean Low Spring Waters [53]. The Philippines0 tide tables use a similar but different datum: the Mean Lower Low Water [54]. Interestingly, Singapore0 s chart datum for elevations is Mean Higher High Water (MHHW) for the drying height of features mentioned but the chart datum for depths is the level of the LAT [55] as recommended by the IHO [56]. Not only does the chart datum vary between countries but the low water datum and the high water datum can also differ. This situation is complicated by the fact that there is no common understanding of the exact size and number of insular

features in the Spratlys, nor of their surrounding bathymetry, let alone the exact tidal variations [57]. Second to the issue of determining which high and low tides should be taken into account comes the technical difficulty of determining the level of different low tides on different insular features. While remote sensing surveys cannot determine the sea level which should be used as a reference, it can contribute to determining sea heights at different points in the tidal cycle (e.g. LAT/HAT and MLLW/ MHHW) through the analysis of remotely sensed bathymetry data coupled with tidal predictions from ocean tidal models. 3.4.2. Reconstruction of tidal variation and low/high tides levels based on remote sensing surveys This section outlines the process through which remote sensing surveys can assist in the determination of low/high sea heights. First it discusses the need to resort to tidal predictions models and second the need for precise bathymetry information to correct the model and infer corrected sea height predictions. Tidal heights on Thitu island which are mentioned in the Philippines0 tide tables [58] are based on modeled tide predictions. So are the tidal heights mentioned for North Danger Reef [59] by the tidal prediction service of the United Kingdom Hydrographic Office Admiralty Easy Tide. Tide prediction software can be used to provide modeled tidal height for all insular features identified through remote sensing. However, such models take into account the general geography and bathymetry of the mainland surrounding the SCS to determine tides0 amplitude at different times and on different points. They do not take into account the effect of the Spratlys0 insular features on tides and unfortunately, there are very few if any real time measurements taken in tidal stations to verify the predictions. Remote sensing surveys are invaluable for the information they can provide on the location, size and water depth of each feature, which in turn can be used to correct the accuracy of the initial tide predictions. Extreme meteorological events can also be taken into account in the predictions [60]. In turn, these revised tidal predictions can be taken into account to calculate corrected measurement of water depth around the Spratly features and thus improve the general accuracy of the inferred bathymetry [61]. Such verification of the bathymetry is rendered necessary by the fact that commercially available nautical charts of the SCS rely on a patchwork of data from different years and sources including unverified extrapolations. The most up-to-date chart published by the UK Admiralty (2002) itself relies on data from 1849 to 1971, especially the Spratly area. Accounts of physical descriptions of specific features made by geographers and academics highlight these uncertainties [62]. The most comprehensive physical and hydrographic description of the Spratly islands has been done by D. Hancox and V. Prescott in 1995 [63]. In their review of past hydrographic surveys, they highlight that many of the current sailing directions about the Spratly Islands are taken, sometimes without change, from Findlay0 s publication in 1869 [64]. Since then, sporadic hydrographic surveys have been and still are carried out on a unilateral basis by various public and private research organizations. However, many of them have not been published [65]. 3.5. Maritime baselines for atolls The determination that an insular feature may be considered as above water at high tide and subject to the exercise of sovereignty and may [66] thus generate an entitlement to maritime zones, raises another set of questions with respect to the location of the baselines from which such maritime zone should be calculated.

Y. Lyons / Marine Policy 45 (2014) 146–155

Two key questions can be highlighted and both can be informed by satellite imagery. First, whether the above high tide feature is surrounded by low-tide elevations. Second, whether the above high tide feature is located on an atoll. A low tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide [67]. If a low tide elevation is located within 12 nautical miles of the coastline, it is deemed to be a part of that coastline [68]. As a result, the territorial sea and the exclusive economic zone (if any) can be calculated from such low tide elevation instead of being calculated from the coastline. The process described above which relies on remote sensing surveys coupled with tide predictions to determine the sea level height at high tide can conversely be applied to determine whether insular features identify as low tide elevations and thus can be used as a basepoint for the maritime baseline. Satellite images and nautical charts clearly show that the Spratlys are a collection of coral atolls located on seamounts. They also show that many of the insular features in the Spratlys are located on coral reef flats now mostly submerged. As an example, Union Reef, which may be the largest coral atoll in the Spratlys, is an oval coral flat measuring just under 20 nautical miles from west to east by 8 nautical miles north to south. It holds the small Sin Cowe coral island (less than 400 m by 140 m) and 10 visible features which either dry at low tide or may include fragments which remain above water at all times. However, sections of the reef flat are no longer visible. To remain visible on satellite images, the reef must have not subsided below 10 to 20 m (depending on the satellite resolution and water clarity). This raises the question whether these partly submerged atolls can still be treated as single atolls. In the affirmative, the inside lagoon constitutes internal waters of the State having sovereignty over the above high tide feature on the atoll and the outer side of the atoll ring can determine the baseline of the territorial sea. This question is particularly relevant in situations where the atoll is large and parts which are submerged at high tide are more than 12 nm away from the above high tide feature located on the atoll. In this case, the issue is to determine whether the atoll can still be used to determine the territorial sea baseline or whether each above high tide feature on the atoll should have its own baseline and territorial sea. UNCLOS relies on the low-water line along the coast of the atoll as marked on the large charts officially recognized by the coastal State [69]. However, given the absence of a chart that would be accepted by all the bordering States of the SCS and the lack of an updated chart [70], remote sensing surveys would be particularly useful to verify and correct current nautical charts generally based on old hydrographic surveys.

4. Marine habitat mapping and environmental monitoring This section discusses first how the mapping of marine habitats in the SCS would fill in a general lack of spatial data on marine habitats. Second, it demonstrates how such mapping of marine habitats would in turn be instrumental to develop a spatial prioritization plan of valuable areas and develop management strategies [71] at regional level. It would assist in sustainable development planning and in complying with the CBD and UNCLOS. It would also facilitate the implementation of regulations from the International Maritime Organization such as the provisions on particularly sensitive sea areas (PSSAs). Third, it shows how successive satellite imagery of the same location can then be used to monitor environmental change.

151

4.1. Filling the gap in consistent spatial datasets of marine and coastal habitats in the SCS High resolution commercial satellites with multispectral sensors have improved the quantity and quality of the data which can be derived from remote sensing surveys. SPOT 5, IKONOS and GeoEye systems are examples of high resolution (up to 1 m resolution or less) satellite images providers. The interest for satellite imagery has grown also in Southeast Asia since the opening of the first satellite ground stations [72]. The 2008 book ‘Satellite Remote Sensing of SCS’ which contains studies of the physical oceanographic characteristics of the basin through remote sensing, shows case of this interest [73]. Notably, two studies focus on the tuna fishery oceanography in the SCS. However, they use parameters of physical oceanography as indicators of fishing grounds. Other papers demonstrate how remote sensing data can be used to map essential fish habitat in order to better manage fish stocks. The method used relies on the identification of water spaces and bottom substrates providing favorable habitats for fish population to spawn, feed and nature [74]. Advances in the spatial and spectral resolutions of sensors now available to ecologists are making the direct remote sensing of certain aspects of biodiversity possible [75]. Such spatial data on marine habitats would be particularly useful for this ‘global apogee of marine biodiversity’ [76] also labeled ‘center of biodiversity of the world’ [77], which, depending on the geographical scope of studies, host from 34% to 44% of the area of world coral reef and a quarter to 40% of the total area of global mangrove area [78]. The marine resources of these seas are subjected to an intense and often conflicting and unsustainable exploitation, and the current growth in both the intensity and diversification in types of maritime activities in the SCS further increases the pressure exerted. Climate change is yet another stressor projected to compound the pressures on natural resources and the environment [79], especially with respect to coral reefs and mangroves [80], with the risk of hitting tipping points [81]. Over 34% of the coral reefs of Asia were already reported to have been lost in 1998, largely due to coral bleaching induced by the 1997/ 1998 El Nino event [82]. However, by contrast with the biodiversity of the coral triangle which has been the subject of international efforts, marine biodiversity data of the SCS is sparingly represented in global databases such as the Ocean Biogeographic Information System (OBIS) [83]. In case of a pollution event or environmental degradation occurring as a result of extreme weather event, the extent of the damage cannot be quantified nor understood. In this context, satellite imagery could provide much needed spatial data on the location of marine habitats in the entire basin of the SCS such as coral reefs and seagrass bed which are often used as proxies for productivity and biodiversity [84]. The collection of such spatial data on marine habitats would be a building block for the integrated mapping of valuable ecosystems (including biodiversity data when available), resources and uses needed for regional marine spatial planning towards sustainable use of the SCS and its resources [85]. In the last 10 years, research has focused on classifying marine habitats based on benthic and substratum data, habitat condition (i.e. exposure to environmental and anthropologic stresses) and modeled associated species cluster to create a conservation management rating or conservation value for different habitats [86]. Such rating, or value, is created to serve as a basis to identify priority areas for conservation [87]. The amount of specialized publications and controversy on habitat classifications, on studies discussing their application and on the elements that should be taken into account to determine priorities in conservation [88] is a testimony to the complexity of this endeavor. However, they also highlight the need for such habitat classification and for the end product, a spatial map of vulnerable and valuable habitats for marine spatial planning purposes.

152

Y. Lyons / Marine Policy 45 (2014) 146–155

Habitat classification and mapping can be particularly difficult in areas of complex benthic combination such as sandy areas with variable amount of algal cover, sandy areas surrounded by coral rubbles or variations in color, texture and size within a discrete benthic class (e.g. coral bleaching in the case of coral reefs) [89]. In such situation, the spectral reflectance signatures, shape, pattern and texture of the benthic feature studied can be unclear and compromise the interpretation of spatial data. To overcome this, in situ datasets are collected for calibration and validation purposes (commonly referred to as ‘ground truthing’). While such field verifications can hardly be envisaged in the disputed areas of the SCS without great political difficulties, such field calibration could be carried out of the Anambas islands, an island chain located in the south western part of the SCS and under the uncontested sovereignty of Indonesia. Arguably, unofficial calibration could also be carried out from Layang Layang which is currently occupied by Malaysia and operates a diving resort open to the public. Such calibration process would require that satellite imagery of these areas be compared with field verifications. The spectral signatures and classification schemes identified for these areas could then be used to verify the interpretation of remote sensing data for similar formations and marine habitats in the SCS. Warnings raised on inevitable inaccuracies in satellite imagery based habitat mapping given the current state of scientific capabilities in this field and the difficulties in habitat classification must not delay habitat classification efforts until further research decreases the risk of inaccuracies. In ocean spaces subject to intensive and conflicting uses, such course of action could compromise the ability of marine systems to recover and provide the resources they once had. Andréfouët emphasizes this point that the risk of inaccuracies must not paralyze an initial mapping exercise which would be sufficient for initial marine spatial planning purposes [90]. Later research should be used to complement and correct the initial map in an iterative manner. The use of remote sensing surveys in Southeast Asia has developed greatly in the last 15–20 years. However, to date, such surveys tend to be limited in their geographic scope and target and reports are rarely published. As States0 capability increased, governments developed new applications to better manage their resources and pollution events in maritime zones. Notable applications include the monitoring of oil slicks, be they from spillage from vessels or offshore activities or from seeps from the seabed. The later can also bring useful information in the quest for new subsea hydrocarbon reserves. Oil spill monitoring however is more effectively done by aerial surveys than satellite imagery due to the unpredictable and common presence of clouds [91]. Clouds0 frequent presence is a particular hindrance when the purpose of the monitoring is to gather the evolution of ecological features over a short period of a time (a few days). Where the timeframe is longer, observations made one day can be completed in the following days for the sections of the image which may have been obscured by clouds. The monitoring of harmful algal blooms is an example of remote sensing application involving averages over a long period.

4.2. Identify valuable marine and coastal habitats and facilitate the implementation of UNCLOS, CBD and other IMO regulations Several international conventions unanimously ratified in Southeast Asia provide for an obligation of coastal States to protect sensitive marine environments. UNCLOS, the ‘constitution of the ocean’ which sets the legal framework for all uses of the ocean and its protection, provides for the obligation to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life

[92]. However, the text provides no criteria nor method to determine such ecosystems and habitats. The 1973/78 International Convention for the Prevention of Pollution from ships (MARPOL) [93] defines certain areas as Special Areas where more restrictive rules are applicable in order to minimize pollution from shipping. Such Special Areas are ‘a sea area where for recognized technical reasons in relation to its oceanographic and ecological conditions and to the particular character of its traffic, the adoption of special mandatory methods for the prevention of sea pollution by oil, noxious liquid substances, or garbage, as applicable, is required [94]. The guidelines adopted by the IMO to assist contracting parties in the designation of such Special Areas further specify that the ecological conditions which must be met for an area to be designated as a Special Area involve depleted, threatened or endangered species; areas of high natural productivity; spawning, breeding and nursery areas for important marine species and areas representing migratory routes for sea-bird and marine mammals; rare or fragile ecosystems such as coral reefs, mangroves, seagrass beds and wetlands; and, critical habitats for marine resources including fish stocks and/or areas of critical importance for the support of large marine ecosystems [95]. The current IMO Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (PSSAs) [96], provide a more exhaustive and more detailed list of ecological criteria which would need to be met for an area to qualify for this other protective regime for ecological reasons [97]. These criteria are divided into the following overlapping and broad 11 categories: (1) uniqueness or rarity, (2) critical habitat, (3) dependency, including migratory routes, (4) representativeness, (5) diversity, (6) productivity, (7) spawning or breeding grounds, (8) naturalness, (9) integrity, (10) fragility and bio-geographic importance. The protection mechanisms available through the designation of PSSAs are identified as means to addressing States0 obligations under the CBD [98]. States0 obligations under the CBD are wider and can even assist in the implementation of PPSAs. Notably, States have obligations of identification and monitoring of components of biodiversity including ecosystems and habitats containing high diversity, large numbers of endemic or threatened species, required by migratory species or which are representative, unique or associated with key evolutionary or other biological processes [99]. States also have an obligation of prioritization of biodiversity research (i.e. identification and monitoring) as well as conservation and sustainable use [100]. However, to overcome the lack of guidance provided by the CBD to designate and prioritize areas for protection, the Conference of the Parties (COP) to the CBD adopted scientific criteria for identifying ecologically or biologically significant marine areas in need of protection (the EBSAs criteria) [101]. Set out in Annex I to the decision IX/20 of the COP to the CBD, seven criteria are identified [102]: (1) uniqueness and rarity, (2) special importance for life history stages of species (3) threatened, endangered or declining species and/or habitats, (4) vulnerability, fragility, sensitivity, slow recovery, (5) biological productivity, (6) biological diversity; and, (7) naturalness. Clear commonalities can be observed between the ecological criteria provided in the 2005 IMO Guidelines for the designation of PSSAs and in the EBSAs devised in 2008. While satellite derived data cannot document all the ecological criteria spelled out above, they can contribute to the identification of critical habitats such as coral reefs and seagrass beds. Other less iconic yet unique habitats such as large reef formations built by polychaetes worms (sabellariid reefs) in intertidal or shallow areas may also be identified by remote sensing [103]. They have been shown to be potentially invasive and threaten coral reef [104]. The monitoring of such formations which can change greatly over time can therefore reveal critical. Satellite images are to date the most effective tool to map habitats on a regional scale with GIS [105] and identify priority

Y. Lyons / Marine Policy 45 (2014) 146–155

areas according to a set of criteria. To identify such priority site, habitat classes can be overlaid with marine resource uses and shipping lanes. Quantitative data on these resource uses and shipping (e.g. from peer-reviewed publications) can be integrated into the GIS system to assess cumulative effect on marine habitats. An example of such integrated mapping done at global level is the global assessment of coral risks project carried out in collaboration by the World Resource Institute, the International Center for Living Aquatic Resources Management and the World Conservation Monitoring Center. The map-based indicator of potential threats to coral reefs published under this project uses reef locations identified through satellite imagery. However, the mapping is done on a global scale and does not include any other marine habitat [106]. It is a good example of what needs to be done at regional level for the SCS for all the main habitat types. 4.3. Monitoring marine environmental change While it is generally accepted that global biodiversity, which is under numerous natural and man-made stresses, is rapidly decreasing globally, the exact extent of this process in the SCS is still unclear (Section 4.1 above). An initial collection of satellite data would bring the ecological baseline study needed. Subsequent and repeated collection over the same geographical area and at the same scale would bring the time series on the basis of which the extent of environmental changes can be documented. Such time series can be used to monitor positive and negative impacts from specific uses and environmental stresses and measure the effectiveness of policy measures which may have been taken. Were satellite data showing a clear degradation of habitats (such as coral bleaching) or a reduction in the coverage of any given category of habitats, further research can be launched to investigate the potential causes.

5. Conclusion This paper has shown the valuable contributions that satellite imagery could provide to two very hot and difficult current issues with respect to the SCS: first maritime disputes and second the degradation of the marine environment. With respect to the first issue, satellite imagery can usefully inform the discussion on the number and location of features in the SCS and whether they could qualify as a rock, an island or a low tide elevation through the provision of scientific, transparent and verifiable data. Such data would also be useful to complete the oldest hydrographic records still used for parts of the UK Admiralty map of the SCS. This data cannot purport to determine the sovereignty over islands or rocks nor the extent of the maritime zone to which an island or rock may be entitled. However, the provision of open access, scientifically proven and relevant facts to the discussion may improve the natural information asymmetry between parties to the discussion and limit the temptation of claimants to make spurious allegations which could be disproved by a single satellite image. Satellite imagery could also provide spatial data on marine habitats in the SCS and form the basis for the development of a biogeographic management platform, the first layer of which will require the mapping of islands and other geographic features in the SCS (SCS) and the habitats surrounding them (e.g. coral reefs and patches, mangroves, seagrass beds, mud and sand flats). Such platform would be critical to integrate regional data with global data on the marine environment and develop a marine spatial planning framework for the SCS. At national level, it would also facilitate the implementation of UNCLOS, IMO regulations and the CBD with respect to the protection of marine biodiversity of

153

sensitive marine habitats by bordering States of the SCS. Finally, the regular collection of satellite remote sensing data would permit to not only create a static image of the SCS. Such data would also provide the information needed to monitor the evolution of physical characteristics of insular features and the surrounding habitats. This in turn would provide the basis to assess the success of policy decisions at regional, national and local scales.

Acknowledgments This paper is the result of a feasibility study coordinated by the Centre for International Law and realized in collaboration with two other research centers of the National University of Singapore, the Centre for Remote Imaging, Sensing and Processing (CRISP) and the Tropical Marine Science Institute (TMSI). Special thanks go particularly to Kwoh Leong Keong, Peter Ng, Liew Soo Chin and Pavel Tkalich without whom this study would not have been possible. References [1] Principles relating to remote sensing of the earth from outer space, adopted by resolution of the United Nations General Assembly at the 95th plenary meeting, on 3 December 1986, U.N. Doc. A/RES/41/65, principle 1(a), available online: 〈http://www.unoosa.org/oosa/SpaceLaw/rs.html〉. [2] This calculation is based on measurements made with the ruler on Google Earth for all the features visible in this application and for those which are not (West York Island, Sand Cay and Amboyna Cay) on the data presented by Hancox D and Prescott V. A geographical description of the Spratly Islands and an account of hydrographic surveys amongst those islands. Maritime Briefing – International Boundaries Research Unit 1995. 1:6. [3] United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), 〈http:// cil.nus.edu.sg/1982/1982-united-nations-convention-on-the-law-of-the-sea/ 〉. For a comprehensive presentation and discussion of the maritime disputes, see Beckman R. The UN Convention on the Law of the Sea and the maritime disputes in the South China Sea. Am J Int Law 2013;107(1):142–63. [4] UNEP and COBSEA. State of the marine environment report for the East asian Seas. Bangkok; 2009. See also Vo ST and Pernetta J. The UNEP/GEF South China Sea project: lessons learned in regional cooperation. Ocean Coast Manag 2010;53:589–96. Wilkinson C et al. Strategies to reverse the decline in valuable and diverse coral reefs, mangroves and fisheries: the bottom of the J-Curve in Southeast Asia? Ocean Coast Manag 2006;49:766–79. These authors describe many of these initiatives and call for regional cooperation in order to improve marine management. Many publications are focusing more particularly on the loss in coral reef habitats. The most recent is Burke, L., L. Selig, et al. (2011). Reefs at risk revisited: Southeast Asia. [5] The ASEAN reiterates regularly its unwavering support and wishes to promote sustainable management and utilization of marine and coastal resources and conservation and sustainable management of key ecosystems in coastal and marine habitats (point 18 of the 2012 Bangkok Resolution on ASEAN Environmental Cooperation). The East Asia Summit adopts similar declarations (see for instance the 2007 Singapore declaration on climate change, energy and the environment, point 14). This is also the spirit of the 2009 Manado declaration (adopted on 14 may 2009 in Manado, following the world ocean conference, available online: 〈http://www.gc.noaa.gov/ documents/051409-manado_ocean_declaration.pdf〉) which emphasizes the particular importance of sustainable management of coastal and marine ecosystems in the context of climate change. [6] The territorial sea extends 12 nautical miles from the coast or more specifically from the territorial sea baseline determined according to UNCLOS (UNCLOS, article 3). [7] The exclusive life zone extends from the seaward boundary of the territorial sea, up to 200 nautical miles from the territorial sea baseline (UNCLOS, article 57). [8] The coastal state has more discretion to deny consent in the territorial sea than in the exclusive economic zone (UNCLOS articles 21 and 245 for the MSR territorial sea regime and articles 56 and 246 for the MSR economic exclusive zone regime.). [9] International civil aviation convention, 7 December 1944 (entered into force on 4 April 1947) 15 UNTS 295, available online at: http://cil.nus.edu.sg/1944/ 1944-convention-on-international-civil-aviation/. [10] Civil aviation convention, article 1. [11] UNCLOS, article 2(2). [12] For a summary of the arguments, see Valencia MJ and Akimoto K. Guidelines for navigation and overflight in the exclusive economic zone. Mar Policy 2006;30:704–11 [706].

154

Y. Lyons / Marine Policy 45 (2014) 146–155

[13] UNCLOS, article 56(1)(a). [14] UNCLOS, article 56(2). [15] UNCLOS, article 58(1). Several States have enacted legislation to prevent other military and intelligence gathering activities in and over their exclusive economic zone, notably China (article 51 of the 2002 Surveying and Mapping Law of the People0 s Republic of China) (Order of the President no.75). However, these rules do not apply to satellite data. For further information on this, see also Pedrozo R. Coastal State jurisdiction over marine data collection in US views. Military activities in the EEZ. Naval War College. China Maritime Studies Institute 2010; 7:27. [16] Jakhu R. International law governing the acquisition and dissemination of satellite imagery. J Space Law 2003;29:65–91. [17] Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies, 27 January 1967, 610 U.N.S.T. 205 (entered into force 10 October 1967), articles 1 to 3. [18] See Jakhu R0 s discussion, ibid note 14. [19] Outer Space Treaty, article 3. [20] Outer Space Treaty, article 1. [21] The socialist countries (including France and the Soviet Union) and the developing countries relied on the universally recognized principle of permanent sovereignty over natural resources within a State0 s national jurisdiction to defend the position that the treatment and dissemination of satellite imagery acquired with satellites must be governed by State sovereignty. By contrast, the developed countries were defending the full freedom of the sensing States. For a discussion of this argument, see Jakhu R, ibid note 14. [22] UN document A/AC/05/C.2/L.99 (1974). [23] See Jakhu R0 s discussion, ibid note 14. [24] Res GA. 41/65, U.N. GAOR, 41th sess. 95th plen. mtg., U.N. Doc. A/RES/41/65, available online: 〈http://www.unoosa.org/oosa/SpaceLaw/rs.html〉. [25] Principles relating to remote sensing, principle 4. [26] Principles relating to remote sensing, principle 4. See also Jakhu R., ibid note 14. [27] Jakhu R. ibid note 14. [28] However, according to Principle 12 of the principles relating to remote sensing also, the sensed State has be given access to all primary data on a non-discriminatory basis and on reasonable cost terms. For a discussion of the right to a non-discriminatory access, see Jakhu R, ibid note 14. [29] Status of ratification available at: 〈http://treaties.un.org/Pages/ViewDetailsIII. aspx?&src=UNTSONLINE&mtdsg_no=XXI  6&chapter=21&Temp=mtdsg3& lang=en〉. [30] UNCLOS, article 121(1). [31] UNCLOS, article 13. [32] See for instance Park CH. The changeable legal status of islands and ‘nonislands’ in the law of the sea: some instances in the Asia-Pacific region. Bringing new law to ocean waters. Caron DD and Scheiber HN. Berkeley Leiden/Boston. University of California. Law of the Sea Institute. Martinus Nijhoff publishers; 2004. p. 483–91. [33] Hancox D, Prescott V. 1995; ibid note 2. See also map of the South China Sea no.803426A1 (G02284) 1–10. Office of the Geographer. U.S. Department of State; January 2010. [34] See for instance the north-northeast coastline of Spratly Island in Google Earth entering in the geographic coordinates 81380 400 0 N and 1111550 130 0 E. [35] See Symmons C. Some problems relating to the definition of insular formations in international law – Islands and low-tide elevations. Marit Brief 1995; 1(5). [36] UNCLOS article 121(3). Note that the breadth of the territorial sea is 12 nm from the baseline (UNCLOS article 3) while the exclusive economic zone extends to 200 nm from the baseline (UNCLOS article 57). [37] UNCLOS, article 121(2). [38] Van Dyke JM, Brooks RA. Uninhabited islands: their impact on the ownership of the ocean0 s resources. Ocean Dev Int Law 1983;12(3):265–300. This paper also includes an exhaustive account of the history of the drafting of this current provision of article 121(3) of UNCLOS. [39] Charney JI. Rocks that cannot sustain human habitation. Am J Int Law 1999;93:863–78. [40] Charney JI. 1999. Ibid note 34. See also Beckman R and Schofield C. Moving beyond disputes over island sovereignty: ICJ Decision sets stage for maritime boundary delimitation in the Singapore Straits. Ocean Dev Int Law 2013;40 (1):1–35. [41] A topical and much mediatized example is the use of remote sensing data to document the impact of the 2004 Banda Aceh (Indonesia) tsumani and subsequent earthquakes. They have been critical to identify the extent of the coastal transformation and evaluate the damage suffered to human infrastructure and the environment and assess reparation needs. See for instance Suppasri A et al. Application of remote sensing for tsunami disaster 2012; available from: 〈http://cdn.intechopen.com/pdfs/27097/InTech-Applicatio n_of_remote_sensing_for_tsunami_disaster.pdf〉. [42] Four or five constructions can be observed in Google Earth entering in the geographic coordinates 101430 590 0 N and 1151480 110 0 E. [43] Format commonly displayed for public viewing such as Google Earth. [44] Medium resolution civil satellites including Landsat 7 (a US satellite launched by NASA in 1999; collected data is managed by USGS and can be downloaded for free. Landsat 8 has been launched on 11 February 2018 and the data is expected for downloads by the end of the year. See USGS website: 〈http://landsat.usgs.gov/index.php〉) and Spot 5 (a French satellite launched in 2002; the data collected is commercially available) can detect the

[45]

[46]

[47]

[48]

[49]

[50] [51]

[52] [53] [54]

[55] [56] [57]

[58] [59] [60]

[61]

[62] [63]

[64]

[65]

[66] [67] [68]

[69] [70]

presence of small islands provided that they are larger than their maximum resolution of 30 to 25 m. Smaller formations which may still be above water at high tide will require high resolution satellite imagery for better accuracy. Guoy TK. Tides and and tidal phenomena of the ASEAN Region. Australia: MSc Thesis, School of Earth Sciences. Flinders University of South Australia; 1989. This is clearly illustrated in the tide and current tables of the bordering countries. For example in the Philippines, the tides in Manila and Puerto Princesa (both are ports on the South China Sea) go from diurnal to semidiurnal in the course of one month (Coast and Geodetic Survey Department, National Mapping and Resource Information Authority, and Department of Environment and Natural Resources, 2010). So do the tides in Miri, Bintulu and Kota Kinabalu in Malaysia (Borneo) though this general patterns is more or less pronounced in the course of the year (Jabatan Ukur Dan Pemetaan, 2011). Spring tides are the name given to the highest tides, which occur monthly when the gravitational pull from the moon and from the sun add up. The highest spring tides occur around the time of the equinoxes (21st of March and 23rd of September). For a discussion of tidal datum in general and specifically with respect to insular formations in international law, see Symmons C. Some problems relating to the definition of insular formations in international law - Islands and low-tide elevations. Marit Brief 1995;1(5) and Marques Antunes NS. The importance of the tidal datum in the definition of maritime limits and boundaries. Marit Brief 2000;2(7). UNCLOS article 5 (in the context of the determination of the normal baseline) and article 6 (in the context of the determination of the baseline of island located on atolls). See Guoy TK. Ibid note 38. LAT (HAT) is defined as the lowest (highest) tide level which can be predicted to occur under average meteorological conditions and under any combination of astronomical conditions. It is recommended that LAT and HAT be calculated either over a minimum period of 19 years (IHO Resolution 3/1919 from 1997 (as amended in 2008) available at: 〈http://www.ecdisregs. com/get_pdf.php?id=111&action=view〉). IHO Resolution 3/1919, article 2(a) and (b). Ibid note 43. Jadual Ramalan Air Pasang Surut (Tide tables). Malaysia. Jabatan Ukur Dan Pemetaan. 2011 [vii]. Tide and currents tables. Philippines. The Coast and Geodetic Survey Department National Mapping and Resource Information Authority. Department of Environment and Natural Resources. Manila, Philippines; 2010[3]. Charts for small crafts, Singapore Straits and Adjacent Waterways 2009/ 2010. Maritime and Port Authority. Singapore [2]. Charts for small craft, Singapore Strait and Adjacent Waterways, Maritime and Port Authority of Singapore, 2009/2010. Based on publicly available tide tables published by the hydrographic offices of the States bordering the South China Sea, there is no official primary control tide gauge station (or reference port) on the Spratly islands. The only primary Stations are on the closest mainland coast. Tide and currents tables. Pagasa island, Kalayaan Island Group. Philippines. [222]. ibid note 49. One of the main northernmost above water feature of the Spratlys. This notion of permanence is seen by many scholars as key to determining that an insular feature can qualify as an island (see Symmons C. 1995. Ibid note 40). However, it is noted that the precise elevation of a low above water feature is difficult to assess through satellite data, which are not as precise as airborne laser airborne mapping survey or LIDAR (Laser Imaging, Detection and Ranging). Hancox D, Prescott V. Ibid note 2; 1995. A geographical description of the Spratly Islands and an account of hydrographic surveys amongst those islands, International Boundaries Research Unit, Mar Brief, vol. 1–6. Hancox D, Prescott V. 1Ibid note 2 and Findlay AG. A directory for the navigation of the Indian Archipelago and the coast of China from the Straits of Malacca and Sunda, and the passages east of Java, to Canton, Shanghai, the Yellow Sea and Korea, London: Richard Holmes Laurie, 1869 and 1889; First and Third editions. This record appears to be the oldest one relied on in current charts and sailing directions; 995. Hydrographic surveys are known to be carried out unilaterally by the USA and PRC in the EEZ of other States without seeking their consent. This has led to numerous diplomatic incidents, among which the well known USNS Bowditch in 2001 and the USNS Impeccable in 2009 (Captain Pedrozo R. Close encounters at sea. The USNS Impeccable Incident. Naval War College Review. Summer 2009;62–3:101–11). Subject to States determination whether directly or through the consultation of a third party. UNCLOS, article 13. See above section 3.1. While this is not the exact wording of UNCLOS it is the spirit. Article 13 (1) provides that the low-water line on these elevations may be used as the baseline for measuring the breadth of the territorial sea where there are it is situated at wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. UNCLOS, article 6. Which would be based on reviewed hydrographic measurements. As seen above, the UK Admiralty Chart has for instance not been updated.

Y. Lyons / Marine Policy 45 (2014) 146–155

[71] Johansen KC, et al. High spatial resolution remote sensing for environmental monitoring and management preface. J Spat Sci 2010;53(1):43–7. [72] Thailand0 s satellite activities which started in the 70s led to the creation of GISDA, the Geo-Informatics and Space Technology Development Agency in 2000, which also operates the ground stations. Singapore Centre for Remote Sensing, Imaging and Processing was created in 1992. In Indonesia, the Indonesian National Institute of Aeronautics and Space (LAPAN) is operating ground stations and currently developing remote sensing data collection, management and processing capabilities. [73] Liu AK et al., editor. Satellite remote sensing; Tingmao Publish Company. Taiwan. [74] Valavanis VD, et al. Modelling of essential fish habitat based on remote sensing, spatial analysis and GIS. Hydrobiologia 2008;612:5–20. [75] Turner WS, et al. Remote sensing for biodiversity science and conservation. Trends Ecol Evol 2003;18(6):306–14. [76] Carpenter KE, et al. Comparative phylogeography of the Coral Triangle and implications for marine management. J Mar Biol 2011;1–14:1. [77] Wilkinson C, et al. Strategies to reverse the decline in valuable and diverse coral reefs, mangroves and fisheries: the bottom of the J-Curve in Southeast Asia? Ocean Coast Manag 2006;49:766–79. [78] Todd P et al. Impacts of pollution on marine life in Southeast Asia. Biodivers Conserv 2010;19:1063–82 and Wilkinson C et al. 2006. Ibid note 58. [79] Climate change. Synthesis report, Cambridge University Press 2007. Cambridge, UK [50]. [80] Cruz RV et al. Asia. Climate change: impacts, adaptation and vulnerability. Contribution of working group II to the fourth assessment report of the Intergovernmental Panel on Climate Change, M.L. Parry et al., Cambridge University Press 2007. Cambridge UK [472]. Of note are the repercussions on fisheries from loss of coral reefs and mangroves. [81] Paine RT, et al. Compounded perturbations yield ecological surprises. Ecosystems 1998;1:535–45. [82] Wilkinson C. Status of coral reefs of the world: 2000, Australian Institute of Marine Science; 2000 Townsville. and Burke L et al. Reefs at risk in Southeast Asia. World Resource Institute 2002; accessible on reefbase. 〈http://www. reefbase.org/resource_center/publication/main.aspx?refid=12496〉 [accessed 25.01.12] and Burke L and al. Reefs at risk revisited: Southeast Asia 2011, accessible online on Reefbase 〈http://www.reefbase.org/download/down load.aspx?type=10&docid=61849〉. [83] This is evidenced by the very low number of records for the SCS. [84] On the use of hard-bottom areas, coral reefs and seagrass beds as a proxy for biodiversity and productivity, see Dunn DC and Halpin PN. Rugosity-based regional modeling of hard-bottom habitat. Mar Ecol Prog Ser 2009;337:1–11. See also Duffy JE. Biodiversity and the functioning of seagrass ecosystems. Mar Ecol Prog Ser 2006;311:233–50. [85] Andréfouët S. Coral reef habitat mapping using remote sensing: a user vs. producer perspective-implications for research, management and capacity building. J Spat Sci 2008;53(1):113–29. [86] On conservation value, see Harding S et al. Baseline data analysis as a tool for predicting the conservation value of tropical coastal habitats in the IndoPacific. Ocean Coast Manag 2006;49:696–705. On conservation management rating, see Edinger EN and Risk MJ. Reef classification by coral morphology predicts coral reef conservation value. Biol Conserv 2000;92:1–13, Harding S et al. Baseline data analysis as a tool for predicting the conservation value of

[87] [88]

[89]

[90] [91]

[92] [93] [94] [95] [96]

[97]

[98]

[99] [100] [101] [102] [103]

[104]

[105]

[106]

155

tropical coastal habitats in the Indo-Pacific. Ocean Coast Manag 2006;49:696–705. See for instance Harding S et al.; (2006). Ibid note 86. See for instance Gilman E et al. Designing criteria suites to identify discrete and networked sites of high value across manifestations of biodiversity, Biodivers Conserv 2011;20:3363-83. For more details on this complex topic, see Mishra D et al. Benthic habitat mapping in tropical marine environments using QuickBird multispectral data. Photogramm Eng Remote Sens 2006;72(9):1037–48. See also Marine and Coastal Spatial Data Subcommittee. Coastal and Marine Ecological Classification Standards. Interior Department Documents and Publications. Lanham; 2012 USA. Andréfouët S. Ibid note 66; 2008. See for instance a 2010 Technical Note by the International Tanker Owners Pollution Federation (ITOPF) on aerial observation for clean-up and response to oil spills: 〈http://www.itopf.com/spill-response/clean-up-and-response/ aerial-observation/index.html〉. UNCLOS article 194(5). 1340 UNTS 1-2284 available online: 〈http://treaties.un.org/doc/Publication/ UNTS/Volume 1340/volume-1340-I-22484-English.pdf〉. Initially MARPOL Annex I, II and V. IMO Resolution A.927 (22) adopted on 29 November 2001, replacing Resolution A.720(17) adopted on 6 November 1991. This list dates back from IMO Resolution A.927(22) adopted on 29 November 2001 and replacing Resolution A.720(17). The revised Guidelines adopted in Resolution A.982(24) on 1 December 2005 reiterated them. The designation of sea areas as PSSAs are a mechanism designed to protect an sensitive sea areas against shipping pollution through the adoption of protective measures such as ship routeing measures. Alternatively to ecological conditions, PSSAs can also be designated on the basis of socioeconomic or cultural criteria, or scientific and educational criteria, provided that the shipping activity concerned constitutes a threat to such condition (IMO Resolution A.927 (22) [article 4(4)]). Roberts J. Marine environment protection and biodiversity conservation: the application and future development of the IMO0 s particularly sensitive sea area concept. Springer; 2007. CBD, article 7(a) and (b) and Annex I. CBD, article 7 (a) and (b) adopted at the 9th COP on 19–30 May 2008. COP Decision IX/20 para 14 and Annex I. The criteria can be accessed on CBD website 〈http://www.cbd.int/doc/ decisions/cop-09/cop-09-dec-20-en.pdf〉. McCarthy DA, et al. The ecological importance of a recently discovered intertidal sabellariid reef in St Croix, U.S. Virgin Islands. Caribb J Sci 2008;44 (2):223–7. Huang H et al. An outbreak of the colonial sand tube worm, Phragmatopoma sp., Threatens the Survival of Scleractinian Corals, Zoological Studies 2008; available online: 〈http://zoolstud.sinica.edu.tw/Journals/48.1/106.pdf〉. Geographic Information System are a system of computer hardware, software and data for collecting, storing, analyzing and disseminating information about areas of the earth (ESRI), E. S. R. I. Understanding GIS: The Arc/Info Method; 1992. Redlands California. WRI website 〈http://www.wri.org/publication/reefs-at-risk-revisited〉.