Lack of a legal framework regarding island building in the South China Sea

Daniel Mooney, Vol. 37 Associate Editor

Over the past few years the Chinese government has rapidly undertaken widespread land reclamation and construction in the Spratly Islands in the South China Sea. In general, the island building consists of converting formerly submerged reefs into artificial islands and increasing their size in order to suit specific needs. Once built, the islands are then converted into civilian or military outposts such as ports or airstrips. [i] China is one of many countries that have engaged in island building in the Spratly Islands, however the scope and speed of Chinese activities is largely unprecedented.[ii] Island building has been a point of contention between China, the United States, and other nations with territorial claims in the South China Sea. Despite China’s foreign ministers’ claims that the nation has stopped land-reclamation efforts in the disputed South China Sea in an attempt to smooth tensions with its territorial rivals, the U.S. remains skeptical. [iii] It has slowly morphed into a major geopolitical problem that has been discussed in depth by Chinese and U.S. officials.[iv] A major point of contention is how the new islands are to be classified. If the islands are classified as either a low tide elevation or a rock then the artificial islands are not entitled to the full legal status of naturally formed islands under the U.N. Convention on the Law of the Sea.[v] A low-tide elevation creates no territorial sea, exclusive economic zone (EEZ), or continental shelf, and cannot be claimed as territory in its own right. It is legally part of the seabed and its only real effect on the maritime regime is that, if it lies within the 12 nautical mile territorial sea of another feature, it can be considered the baseline from which that rock or island’s entitlements are measured. A rock, which is distinguished from an island by not being able to sustain independent human habitation or economic life, generates a territorial sea but no EEZ or continental shelf.[vi] The original determination of the legal status of the artificial constructs is widely understood to be all that matters. What it is made into is unlikely to have any bearing if a legal dispute were to arise. This is partially why the speed of Chinese expansion is troubling. Determining island classification requires in depth geological surveys and these surveys will prove inaccurate if rock or low tide elevations are permanently modified.[vii] A lack of legal classification presents a number of problems. First, allowing China to exercise authority over the region as if they have full legal state of naturally formed islands will allow Chinese military buildup in the area, further straining diplomacy in the region.[viii] Second, the questionable legal status of the territory could have dire effects on trade and commerce.[ix] 30 percent of the world’s commercial shipping, upwards of $5 trillion per year, including large amounts of oil and natural gas pass through the South China Sea.[x] Any accident either on the seas or in the skies could spark a major international crisis.[xi] Finally, the dredging and decimation of the reefs in the area are having untold environmental effects on the region.[xii] The island building process causes extensive damage to the surrounding marine ecosystem. Classification appears to be the only way to peacefully resolve this dispute for the foreseeable future.[xiii] The territory in question is likely to remain in dispute due to unwillingness on all sides to concede control. United States Defense secretary Ashton B. Carter has maintained that, “[t]he United States will fly, sail and operate wherever international law allows, as we do all around the world.”[xiv]  With this in mind, claimants of territory in the South China Sea and interested parties like the U.S. and E.U. would be well served to move towards the creation of a code of conduct for the South China Sea that sets out the legal steps for island classification. A timely and thorough standard of conduct would at least provide some framework from which countries can operate in the South China Sea. It is not the perfect solution, however it is better than doing nothing.

[i]Mira Rapp-Hooper, Why China’s island-building is raising eyebrows, CNN (May 21, 2015, 6:54 PM), http://www.cnn.com/2015/05/21/opinions/rapp-hooper-china-island-building/. [ii] Id. [iii] Trefor Moss, China Official Says Island-Building Has Stopped in Disputed Seas, The Wall Street Journal (August 5, 2015), http://www.wsj.com/articles/china-official-says-island-building-has-stopped-in-disputed-seas-1438793782 [iv] Id. [v] United Nations Convention on the Law of the Sea art. 13(1), Dec. 10, 1982, 1833 U.N.T.S. 3. [vi] Gregory Poling, The Legal Challenge of China’s Island Building, Asia Maritime Transparency Initiative (Feb. 18, 2015), http://amti.csis.org/the-legal-challenge-of-chinas-island-building/. [vii] Id. [viii] Rapp-Hooper, supra note 1. [ix] Id. [x] Id. [xi] Id. [xii] Derek Watkins, What China Has Been Building in the South China Sea, The New York Times (Sept. 23, 2015) http://www.nytimes.com/interactive/2015/07/30/world/asia/what-china-has-been-building-in-the-south-china-sea.html. [xiii]  Rapp-Hooper, supra note 1. [xiv] Id.