Spectre of China’s Artificial Islands

By Prof Swaran Singh & Dr Lilian Yamamoto

Issue Vol. 30.3 Jul-Sep 2015 | Date : 14 Feb , 2016

Dialectics of China’s Doublespeak

As regards this recent groundswell of polemics, most analyses have clearly missed on the very interesting dialectics of inherent contradictions in China’s own policy positions with regards to artificial islands. The most apt case in point is China’s policy responses to earlier instances of Japan’s flexible interpretations of UNCLOS regarding the condition of islands. The Okinotori Reef, which is located at 1,770 km South of Tokyo, constitutes of two barren rocks located 1,400 yards apart and these are no more than two feet out of the water at high tide.

The legal status of an artificial island is even more disadvantageous than of natural rock features…

The standard Chinese government line on this has been that these are rocks which cannot sustain economic and human life and therefore, Japan cannot obtain an Exclusive Economic Zone around the Reef. Conversely, the Japanese government has argued that their efforts have been to simply keep the Okinotori Reef — which it calls ‘shima’ (island) – above water. That is why it has constructed circular blocks of steel and concrete around these two rock features. Japan professes Okinotori is an island and not as a rock. The same is true in the case of the islands that are being constructed by the Chinese government. By the same logic, it should be counter intuitive for China to argue that the reclaimed area is a natural one.

Indeed, the legal status of an artificial island is even more disadvantageous than of natural rock features. In legal terms, it would be better for China to argue that the Fiery Cross Reef is a rock rather than an artificial island in terms of claiming maritime zones. In its application, the interpretations of UNCLOS though have differed depending on the location of the artificial islands in the marine space. If the Chinese government had reclaimed these features within their territorial sea, it would have had full legal jurisdiction over them. Were the construction of these islands to take place within China’s EEZ and continental shelf, the coastal state would also have exclusive jurisdiction over such artificial islands, installations and structures. A country is even allowed to build artificial islands in the high seas. However, there is a prohibition on states claiming sovereignty in the high seas or seeking to establish maritime zones around them. Besides, South China Sea is surely not seen as high seas but a disputed maritime territory and this makes the UNCLOS open to subjective interpretations.

The ongoing sabre rattling is driven far more by the pre-conceived China threat theories and is not likely to help either side of the divide…

Conclusion

To conclude, therefore, the ongoing sabre rattling is driven far more by the pre-conceived China threat theories and is not likely to help either side of the divide. No doubt, China is seen altering the status quo of these highly-contested and sensitive maritime features. Also, China’s unstoppable spate of constructions has surely further shrunk any openings for peaceful resolutions. It was more than a decade ago that Asia’s senior leader Lee Kuan Yew had advised the West on urgent need for caution against China’s inevitable rise.

There does exist a mechanism to interpret facts on the ground and to foster bilateral or multilateral negotiations or even to establish third-party tribunal though these are often uninspiring and painfully slow. On the other side, given the exaggerated nature of these enormously overlapping claims of nations with complicated equations, muscle-flexing and jingoism is also no way out and is not going to add up to producing any definite solutions towards maritime delimitations. Ensuring peace in status quo and accommodation though joint explorations seem the only pragmatic way out and must be the aim of all stakeholders and the first step has to be creation of an atmosphere of trust and dialogue.

Although the UNCLOS is far from being adhered to even after ratification of the states involved in the South China Sea dispute, it is a case where international law alone might provide a pragmatic start even while it may not promise to provide the full necessary response to these enormous geopolitical challenges. Based on reports on the nature of naval strategy of China in recent years, the construction of artificial islands is more likely to be guided by China’s military strategy rather than claims on EEZ stipulated by the UNCLOS. Since China’s rise in general and its artificial islands in particular have gradually been altering the status quo of the region, this may continue to add to tensions and further reduce the possibility of resolving the dispute. Among the available solutions in the backdrop of China’s unstoppable rise, fostering bilateral or multilateral negotiations or third-party tribunal seem the most pragmatic way out even though chances of clear the maritime delimitations remain elusive and distant.

Notes

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ASEAN, Declaration on the Conduct of Parties in the South China Sea. Available at: <http://www.asean.org/asean/external-relations/china/item/declaration-on-the-conduct-of-parties-in-the-south-china-sea> Accessed on: 3 June 2015.
Ueno Hideshi, “The Problems in the South China Sea,” Review of Island Studies, June 10, 2013, http://islandstudies.oprf-info.org/readings/b00004/. Translated from “Minami Shina Kai ni okeru shomondai,” Tosho Kenkyu Journal, Vol. 2 No. 1 (October 2012), pp. 90–99; published by the OPRF Center for Island Studies.
Schofield, Clive (2012) Island disputes and the “oil factor” in South China Sea, Current Intelligence 4, pp. 3-15, p.3
Although this is based more on speculation than in a well resonated data. See C. H. Schofield, ‘Island disputes and the “oil factor” in the South China Sea disputes’ (2012) 4 (4 Fall) Current Intelligence 3-7.
Jia, Bing Bing and Talmon, Stefan (2014) The South China Sea Arbitration, Hart Publishing, p.2
Permanent Court of Arbitration , The Republic of Philippines v. The People’s Republic of China
Mofa of People’s Republic of China, Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, 12/07/2014. Available at: <http://www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml >
Gjetnes, Marius (2001) The Spratlys: are they rocks or islands? Ocean Development and International Law 32: 191-204, p.199
Hutchison, Charles S. and Viyajan(2010) V.R. What are the Spratly Islands?, Journal of Asian Earth Sciences, n. 39, pp.371-385, p.372
Hutchison, Charles S. and Viyajan(2010) V.R. What are the Spratly Islands?, Journal of Asian Earth Sciences, n. 39, pp.371-385, p.371
Quintos, Mary F. (2015) Artificial Islands in the South China Sea and their impact on the regional (in)security, Center for International Relations and Strategic Studies, vol, II, available at: http://www.fsi.gov.ph/wp-content/uploads/2015/03/2015-0305-Vol-2-No-2-FSI-Insights-Artificial-Islands-in-the-South-China-Sea-Quintos.pdf . Accessed 20 June 2015.
Nagao, Satoru (Japan, the United States and India as key balancers in Asia, Centre for Strategic International Studies, available at http://csis.org/files/publication/150331_Nagao_JapanUSIndia.pdf, . Accessed 22 June 2015, p.4.
Secretary Albert del Rosario, 69th Session of the United Nations General Assembly, High Level General Debate, 29 September 2014, available at: http://www.un.org/en/ga/69/meetings/gadebate/pdf/PH_en.pdf . Accessed 18 June 2015).
1992 Declaration on the South China Sea. Available at: http://cil.nus.edu.sg/rp/pdf/1992%20ASEAN%20Declaration%20on%20the%20South%20China%20Sea-pdf.pdf . Accessed on 20 June 2015.
Buszynskip, Leszek (2010) Rising Tensions in the South China Sea: Prospects for a Resolution of the Issue Security Challenges, Vol. 6, No. 2 (Winter 2010), pp. 85-104. p 88.
Joyner, Christopher. The Spratly Islands Dispute in the South China Sea: problems, policies, and prospects for diplomatic accomodation, in Ranjeet Singh (ed.), Investigating Confidence Building Measures on the Asia Pacific Region, Report No. 28 (Washington DC: Henry L. Stimson Centre, 1999). pp.53-54
Joyner, Christopher. The Spratly Islands Dispute in the South China Sea: problems, policies, and prospects for diplomatic accomodation, in Ranjeet Singh (ed.), Investigating Confidence Building Measures on the Asia Pacific Region, Report No. 28 (Washington DC: Henry L. Stimson Centre, 1999). pp. 54.
Thayer, Carl No China is not reclaiming land in the South China Sea. Available at: http://thediplomat.com/2015/06/no-china-is-not-reclaiming-land-in-the-south-china-sea/. Accessed 20 June 2015.
Beckman, Robert and Schofield, Clive (2014) Defining EEZ claims from Islands: A potential South China Sea Change, The International Journal of Marine and Coastal Law, pp.193-243. p. 195.
Bateman, Sam and Schofield, Clive (2008), State Practice Regarding Straight Baseline in East Asia – Legal, Technical and Political Issues in a Changing Environment, p. 9.
President of the United States, National Security Strategy, February 2015, pp. 10, 13.
Note verbale no. 13-0211 from the Department of Foreign Affairs of the Republic of the Philippines to the Embassy of the People’s Republic of China in Manila, 22 January 2013. Para. 22.
Note Verbale No. 13-0211 from the Department of Foreign Affairs of the Republic of the Philippines to the Embassy of People’s Republic of China in Manila, 22 January 2013, para. 24.