Is China Reclaiming the Law of the Sea?

The Asia Maritime Transparency Initiative has released a special issue on land reclamation and development activities in the South China Sea. As part of its ongoing effort to promote transparency in maritime Asia, AMTI obtained exclusive, never-before-published, imagery of China’s recent building efforts in the Spratly Islands. The collection of exclusive photographs includes coverage of developments on Mischief Reef, Fiery Cross Reef, Johnson South Reef, Cuarteron Reef, Hughes Reef, and Gaven Reef, all located in the Spratlys. These high resolution photos capture the scale of Beijing’s building activities, much of which have taken place in only the last year. The images also demonstrate that many of the structures that China is building on its new artificial islands appear to be similar, as though it is rolling out a systematic plan across these six land features. In addition to viewing these photos on an interactive map, you can also watch some of these Spratly features transform before your eyes through a “before-and-after” interactive. Beyond this visuals, AMTI’s current analysis also draws some important connections between China’s development activities and international law. Before examining these, however, it is necessary to start with a bit of history. There are six countries that claim land features in the Spratly Islands. Taiwan was the first to establish a presence there, taking the largest island, Itu Aba, when the Japanese gave it up at the end of World War II. Taiwan has since built a military base and an airstrip on Itu Aba, and this is the only feature in the Spratlys that it holds. Vietnam, the Philippines, and Malaysia also established their presence in the Spratlys between the 1950s and 1970s, and Vietnam holds the most land features. China was the last to arrive in the area, establishing a presence there in 1988 after it used force to eject Vietnamese soldiers from Johnson South Reef. By the time it did so, the other claimants had occupied the islands and rocks in the area, and it was left with 7 reefs or partially submerged features. In the last year, China has undertaken extensive efforts to transform at least 6 of these 7 reefs into artificial islands. China is not the only Spratly claimant to have engaged in serious construction efforts. Indeed, Taiwan, Malaysia, the Philippines, and Vietnam have all performed significant construction of some sort on the features that they occupy. Moreover, other claimant states have airstrips in the Spratlys, while it is presumed that China will acquire its first this year. China’s South China Sea development activities are, however, unprecedented in their size and scale. This, in turn, raises concerns among other states in the region and the United States about China’s territorial and maritime intentions. Moreover, these efforts have potentially far-reaching implications for international law. Land reclamation is not strictly illegal: There is no specific international law that prohibits it, although it does violate the spirit of the 2002 China-ASEAN Declaration on Conduct in the South China Sea. When reclamation takes place outside of a coastal state’s territorial waters but inside its EEZ, it is governed by UNCLOS articles on the EEZ and the Continental Shelf. The nearest coastal state to the features that China is reclaiming is the Philippines, and most of the features are not within the Philippines’ EEZ. But under UNCLOS, artificial islands do not receive any maritime entitlements. Perhaps more important that the law that may govern China’s current activities is the law that they will affect. The punctuated timing and sweeping scale of China’s efforts leads experts to suspect that its South China Sea developments are intended to undermine central parts of the Philippines’ case that is currently before the Permanent Court of Arbitration at The Hague. In its case, one of Manila’s arguments is that some of the features that China occupies are rocks, and are therefore entitled to only a 12 nm territorial sea under Article 121 of UNCLOS, but not an EEZ or a continental shelf. Another is that some of China’s features are low-tide elevations or submerged features—land formation that are below water at high tide. Low-tide elevations are legally part of the seabed, are not subject to sovereignty claims, and do not generate any maritime entitlements in their own right. Under Article 121, islands must be “naturally formed,” so China cannot hope to legally upgrade its reefs by transforming them into artificial islands. But by engaging in massive land reclamation, Beijing is obscuring the court’s ability to rule on whether the features in question were actually rocks or reefs in the first place. In effect, it seems, China may be “tampering with the evidence” in the South China Sea. Unfortunately, the international community has few good tools with which to respond to China’s activities. As my colleague Greg Polling has suggested, states in the region could undertake a massive effort to survey the South China Sea in an attempt to designate relevant land features as islands, rocks, and low-tide elevations. This would be a great help in future South China Sea legal arbitration, and the United States and others should provide material support for these survey efforts. Beyond this, analysts and the media should continue to shed light on this destabilizing behavior as it unfolds. It is notable, however, that China is making such rapid progress in the Spratlys that many analysts expect that Beijing will have completed much of its building effort by the end of 2015—before the arbitral tribunal is likely to rule on the case. If these activities do affect the PCA’s ruling on parts of the Philippines case, that will in turn make future South China Sea arbitration all the more intractable, and impair the claimants’ ability to manage these disputes. Beyond its legal impact, China’s rapid development efforts will have other ramifications. If Beijing builds airstrips and helipads on these artificial islands as many expect, this will meaningfully improve its ability to project power in the South China Sea. Some further speculate that this may encourage Beijing to declare an Air Defense Identification Zone in the South China Sea, although that is probably at least a few years off. The impact of this lightening-speed construction on the Law of the Sea regime is likely to be felt much sooner than that. If you want to understand these efforts better, do take a look at the AMTI imagery: the 14 photos are worth far more than my 1,000 words.