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Artificial Island Building in the South China Sea

No, China Is Not Reclaiming Land in the South China Sea

No, China Is Not Reclaiming Land in the South China Sea

Carl Thayer

The Diplomat

Rather, China is slowly excising the maritime heart out of Southeast Asia.

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China’s building of artificial island on Mischief Reef. Image credit: Victor Robert Lee and DigitalGlobe

Ever since last year when satellite imagery confirmed that China was constructing artificial islands in the South China Sea, journalists, security specialists and even government officials uncritically have adopted terminology that obfuscates rather than clarifies the issues at stake. No term has been so abused as “land reclamation” both in its everyday usage and legal meaning.

A commentary written by Chinese academic Shen Dingli argues that there is no prohibition in international law about land reclamation. He cites the examples of Shanghai city, Japan’s Kansai International Airport, Hong Kong and Dubai. None of these examples are comparable to what it taking place in the South China Sea.

Let’s be clear: China is not reclaiming land in the South China Sea in order to improve conditions on a land feature – an island – that has deteriorated due the impact of the environment or human use. China is dredging sand from the seabed and coral reefs to create artificial islands. China misleadingly states it is reclaiming land on islands over which it has sovereignty. This is not the case. China is building artificial structures on low tide elevations (submerged features at high tide) and rocks. China cannot claim sovereignty over these features. These features are not entitled to maritime zones or airspace.

Artificial islands have a distinct meaning in international law. Under the United Nations Convention on the Law of the Sea (UNCLOS) sovereignty over artificial islands can only be exercised by a coastal state in its Exclusive Economic Zone (EEZ). Article 56 states, “In the exclusive economic zone, the coastal State has…jurisdiction… with regard to: (i) the establishment and use of artificial islands, installations and structures…” Article 60 gives the coastal state “exclusive right to construct… artificial islands.” And Article 80 extends this provision to artificial islands on a coastal state’s continental shelf.

All seven of the features that China presently occupies and has converted into artificial islands are the subject of legal proceeding brought by the Philippines before the UN’s Arbitral Tribunal. The Philippines Notification and Statement of Claim argued that under UNCLOS Mischief Reef, McKennan Reef, Gaven Reef and Subi Reef are submerged features and both Mischief Reef and McKennan Reef form part of the Philippines’ continental shelf. Further, the Philippines argued that Scarborough Shoal, Jonhson Reef, Fiery Cross Reef and Cuarteron Reef are rocks under UNCLOS. All of these features lie within the Philippines’ EEZ or continental shelf.

In summary, China considers these features to be islands in the legal sense and therefore claims not only sovereignty over them but a territorial sea, EEZ, continental shelf and airspace above them. The Philippines argues that these features are submerged banks, reefs and low tide elevations that do not qualify as islands under UNCLOS but are part of the Philippines continental shelf, or the international seabed.

The issue of China’s construction of artificial islands has been befuddled by three other issues. The first issue concerns China’s attempt to enforce its jurisdiction over twelve nautical miles of water surrounding these artificial islands and the airspace above these features. Chinese law requires the promulgation of baseline prior to the assertion of sovereign jurisdiction over maritime zones. With the exception of the Paracels, China has not promulgated any baseline over the features it occupies.

It should be noted that all of China’s artificial islands are located close to features occupied by Vietnam. If these features were entitled to a twelve nautical mile territorial sea China’s zone would overlap a similar zone claimed by Vietnam. The bottom line is that all of these features are contested and signatories to UNCLOS are enjoined not to take actions that would change the status quo.

Read more at http://thediplomat.com/2015/06/no-china-is-not-reclaiming-land-in-the-south-china-sea/

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