China’s Island-Building Pushes U.N.’s Legal Boundaries

From World Politics Review (Jun 3): China’s Island-Building Pushes U.N.’s Legal Boundaries

China’s increased pace of island-building in the disputed South China Sea has angered many of its neighbors, but China insists that its land-reclamation activities are no cause for concern. In an email interview, Mira Rapp Hooper, a fellow with the Asia Program at the Center for Strategic and International Studies, and the director of its Asia Maritime Transparency Initiative, discussed China’s rights under the U.N. Convention on the Law of the Sea.

WPR: What rights do countries have to develop features and outcroppings into artificial islands under the U.N. Convention on the Law of the Sea (UNCLOS), and what maritime rights do these artificial islands then accrue?

Mira Rapp Hooper: Land reclamation is not illegal under the U.N. Convention on the Law of the Sea. It is within a coastal state’s sovereign rights to reclaim land within its own territorial waters, or 12 nautical miles from its coast. If reclamation is within 12-200 nautical miles of a country’s coast, it is governed by UNCLOS’ provisions for the use of exclusive economic zones (EEZs) and continental shelves. A coastal state may also legally conduct land reclamation on the high seas beyond 200 nautical miles.

Artificial islands constructed through land reclamation do not, however, generate new maritime entitlements of their own. When evaluating the maritime entitlements of a reclaimed island, it is crucial to know what the status of that land feature was before building took place. If the feature was formerly a rock, then under Article 121 of UNCLOS it is entitled to a 12-nautical-mile territorial sea and adjacent air space. It is not entitled to an EEZ or a continental shelf provision. If the feature was formerly a submerged reef, or a low-tide elevation, it is not entitled to anything: no territorial waters, no EEZ, no airspace, no continental shelf provisions. In fact, it is not even subject to a sovereignty claim under UNCLOS. The only zone that is legally afforded to an ersatz island built atop a submerged feature is a 500-meter “safety zone.”

WPR: How do these rights apply in the case of the features and outcroppings that China is developing in the South China Sea, some of which involve maritime areas claimed by other countries?

Rapp Hooper: Artificial island-building is illegal if it takes place in the territorial waters or exclusive economic zone of another state. Some of the islands that China is building in the Spratly Islands are within 200 nautical miles of the Philippines’ coast, meaning they are likely within its EEZ. But because the sovereignty of Spratly land features is highly contested, China also may claim that its new artificial features are also within its own EEZ as measured from Itu Aba or other Spratly Islands that may generate additional maritime entitlements.

WPR: What impact are these developed features and outcroppings likely to have on the adjudication of competing maritime claims in the South China Sea?

Rapp Hooper: China’s island-building has implications for the resolution of disputes in the Spratlys. The seven features on which China is building are all part of an arbitration case that the Philippines has brought against China before the International Tribunal on the Law of the Sea in Hamburg. In its case, the Philippines argues that some of the features that China occupies are rocks and others are reefs. By building on top of these features, China may make it more difficult for the court to determine their prior status. Moreover, China has already announced that it will not abide by any decision that the court hands down. If, therefore, the court were to rule that some of China’s features are, in fact, reefs, and therefore not subject to sovereignty claims, it would make it all the less likely that China would stop building and vacate the features in question. China’s building spree appears to signal that Beijing believes possession is nine-tenths of the law.

http://www.worldpoliticsreview.com/trend-lines/15917/china-s-island-building-pushes-u-n-s-legal-boundaries