Indian Defence Review

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.

Tensions have been escalating rapidly in the South China Sea due to the construction of artificial islands by China that the US fears might become military bases in the near future. Although Chinese officials argue that these islands will be used mainly for rescue missions and scientific research, there is evidence that military equipment has been shipped to these places1. In view of these insinuations, to the least these constructions of artificial islands raise concerns about the breach of the 2012 Declaration on the Conduct of the Parties in the South China Sea2 which provides for the respect for freedom of navigation in and flight over the South China Sea as provided by the UN Convention on the Law of the Sea (UNCLOS). This in the backdrop of the continuous strengthening of the Chinese military presence, especially of the PLA Navy, over the years seems to enable the government to increase its assertion and presence in the area thereby redefining the very geopolitics of South China Sea.3

The South China Sea is surrounded by China, Brunei, Indonesia, Malaysia, Philippines, Vietnam and Taiwan all having had claims on this maritime territory. This area has been under active dispute for several decades due to the strategic interest of the surrounding countries. The main groups of islands in the area are Paracel Islands, which are targets of dispute between China and Vietnam, the Pratas Islands, which are administered by Taiwan, Scarborough Reef, Macclesfield Bank and the group of Spratly Islands4 which are disputed between China and the Philippines. This area is of remarkable importance due to its strategic location, sea-lanes and mineral and natural resources, including fisheries as also vast oil and gas reserves.5 More than half of the annual global merchant fleet tonnage, with over 70.000 ships navigates through the South China Sea.6

The potential flashpoint where the construction of artificial islands is taking place is a subject of controversies over claims and counter claims of sovereignty primarily between China and the Philippines. On January 22, 2013, Philippines had submitted a formal Notification and Statement of Claims to the Arbitral Tribunal to begin compulsory arbitration proceedings under Article 287 and Annex VII of the UNCLOS regarding the dispute with China over its “maritime jurisdiction” in the South China Sea.7 The Chinese government declined the Philippines’ ‘note verbale‘ and published a ‘position paper’ in respect to the topic.8 In this ‘position paper’, China asserted that the entire Spratly group of Islands belongs to her and also rejected the jurisdiction of the Arbitral Tribunal.

Disputed Spratlys and Artificial Islands

The group of Islands in the Southern part of South China Sea was named so after Captain Richard Spratly, master of the whaler “Cyrus South Seaman”, who discovered these Islands in 1843. The Islands are controversial features under a Chinese-Filipino dispute and it is important to underline that according to international law, most of these cannot generate maritime zones and finally, it is estimated that between 20 and 46 can actually be considered as islands depending on high or low tide.9 Most of these islands are under water at high tide, but some have a low elevation and are called reefs.10 They are small and uninhabited except for government and/or military personnel who could be stationed under special circumstances.11 Vietnam claims 22 features while Philippines claims nine, China occupies seven and Malaysia claims the other eight of these.12

The expansion of China in the South China Sea has had correlation with creation of vacuums following the exist by powerful countries. Such was the case of the occupation of the Paracel Islands in 1974 followed by the Vietnam War which took place after the US left Subic Bay. In similar ways, when the Soviet Union withdrew from Vietnam, China advanced its occupation in the Spratlys. In addition, after the US withdrew from the Philippines, China also occupied Mischief Reef.13 The construction of artificial islands by the Chinese government has been receiving protests from all these neighbouring countries, especially Philippines and Vietnam who emphasize the breach of the status quo in the region by the unilateral construction of them by the Chinese.14

This is not, though, the first time that temples have been rising amongst these littoral claimants to the South China Sea. These features were occupied by China after its naval vessels sunk three Vietnamese vessels in 1988. Following this, the ASEAN had asked China to sign the Declaration of the South China Sea in 1992.15 This instrument provided that China and ASEAN were to solve questions of sovereignty claimants to the South China Sea without resort to force that China and ASEAN were to solve question of Mischief Reef in 1995 in breach of this understanding and this island is especially within the Philippine EEZ.16 Following this, from 1995 to 1999 too China had built atop the Mischief Reef, a cement building alongside the three octagonal structures which are used for communications, anti-aircraft guns, and radar systems for monitoring aircraft and ships.17 On that occasion, the Philippines government had filed a diplomatic protest against Beijing for the occupation of this Reef.18

The most recent of the artificial islands construction has been the one on the Fiery Cross Reef which is also claimed by the Philippines and is located in the region of the Spratly group of Islands facing the Philippines and Vietnam. Both these countries have had rather acrimonious political ties with Beijing. Unlike several other dormant claimants to these features in the South China Sea, these two have been fiercely confronting China’s assertions of its sovereignty over the whole of this maritime territory. Also, they may not have raised this hyperbole, if the construction of artificial islands occurred in the EEZ of the PRC. However, China has been carrying out these constructions far away from its EEZ and these have revived the above mentioned legal dispute that was brought forward by the Philippines before the United Nations Arbitral Tribunal.19

Even in case of this Fiery Cross island feature, the advance of the Chinese government had also been suspected earlier during the 1990s and specifically during 2011, when China had designated Fiery Cross marine observation station as the main command headquarters equipped with radars and high-powered naval guns. And now, China seems to have replicated this on other features in the South China Sea.

Artificial Islands Regime and the UNCLOS

To begin with, China has been a state party to United Nations Convention on the Law of Sea (UNCLOS) as it had ratified the Convention on June 07, 1996. However, China was seen as the one not fully observing the UNCLOS. Indeed, in August 2006, Beijing had formally filed a ‘reservation’ statement saying it does not accept the ‘compulsory procedures’ of the UNCLOS entailing ‘binding decisions’ as stipulated in Article 298 of this Convention. Although the UNCLOS provides for the regime of islands, it does so assuming that the boundaries are already established. Therefore, the UNCLOS does not provide any specific mechanisms to solve competing claims of sovereignty over such maritime features. Such matters are expected to be ruled by the principles of customary international law regarding the acquisitions and loss of territory.20

Second, China is also not an isolated case amongst various claimants to make ‘nine-dash-line-type’ extravagant claims to the South China Sea. Other countries of the East and Southeast Asia have also been making excessive maritime claims using flexible interpretations of the UNCLOS provisions, especially when they set straight baselines, which have been often interpreted in a very liberal way.21 This is often seen at their strategic positioning of their claims to keep margins for political bargaining. However, unlike these other claimants, what is different is rising China’s will and its wherewithal that makes it so confident to take the risk of seeking out its sovereign claims on these waters.

In particular, under President Xi Jinxing, China’s rather assertive neighbourhood policy, especially recent forays by China’s aircraft carrier, have triggered speculations if not nightmares amongst neighbouring countries forcing the US to make a far more assertive response to this. The recently released National Security Strategy 2015 by the US, for instance, described tensions in South China Sea as “reminders of the risks of escalation” and urged all parties for “an early conclusion of an effective code of conduct for the South China Sea.”22

As regards building a regime for islands, it is stipulated in the Article 121 of UNCLOS. In paragraph 1, it provides that an island is “a naturally formed area of land, surrounded by water, which is above water at high tide.”s regards building , it states that the territorial sea, the contiguous zone, the continental shelf is determined by the coastline of islands as well. However, Article 121(3) provides that, oastline of islands as well. However, Article 121(3) provides thatnental shelf is determined bygraph 1, it provides that “rocks which cannot sustain human habitation or economic life shall have no exclusive economic zone or continental shelf.”

Many of the features in the Spratlys might meet the definition of rocks including those where the construction work of China is being carried out but most of these cannot be categorised as islands. Especially, the features where the Chinese are building the artificial islands are mainly divided in two groups. The first one includes Jonhson South Reef, Cuarteron Reef and the above mentioned Fiery Cross Reef, all classified as rocks.23 Jonhson South Reef has a few rocky protrusions rising above water at high tide. Cuarteron Reef is a collection of coral rocks reaching no higher than one and a half metres and Fiery Cross is a submerged bank with protruding rocks no more than a metre above sea level in high tide.

In the second group, there are low tide elevations named Gaven Reef, Subi Reef and Mischief Reef, which are neither rocks nor islands. Regarding the first group of rocks, China claims entitlements beyond the 12 nautical miles in the waters and excludes other states from these areas24, which does not follow the UNCLOS since according to Article 121 (3), rocks do not generate maritime rights larger than 12 nautical miles. Regarding the second group of features, low tide elevations which submerge at high tide and cannot be considered either as islands and or as rocks; they are part of the seabed and belong to the country’s continental shelf (within 200 nautical miles).

The concept of an ‘island’ according to the UNCLOS does not encompass ‘artificial’ islands. Article 80 of the UNCLOS explicitly establishes that those that submerge at high tide do not possess the status of islands. Hence, the consequence of not being considered as an island is that it will not generate territorial sea and cannot be used as base point measuring the territorial sea. But China has deeply modified the status of these reefs and low-tide elevations into artificial islands which is how it legally claims rights to a 500-metre safety zone as long as there was not conflicting claims over them.

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However, some of these features are within the Philippines EEZ and the Chinese claims of sovereignty over them have caused tensions and protests from the Philippines government. Although the UNCLOS has been signed and ratified by all the involved states, it is their perceptible tendencies to interpret and surpass its provisions in the name of national interests that pose a serious threat on the maintenance of peace and stability. The situation becomes especially perilous when the refusal to apply the spirit of UNCLOS is blended with China’s increasing militarisation and overall ever expanding power projections.