The Legal Challenge of China’s Island Building
Determining the original status of a feature, especially in the Spratly Islands, is more difficult than might be expected. The 2012 International Court of Justice ruling on a dispute between Colombia and Nicaragua, which included a number of low-lying reefs and islets, underscored the high bar set for proving the status of features. Satellite imagery, or even aerial photography, are unlikely to be acceptable to a court except in the most obvious cases. Instead, judges will require rigorous geological surveys of features, preferably conducted during the highest tide of the year (the perigean spring tide, often called a “king tide”).
Accurate surveys in the South China Sea are notoriously lacking, and will prove impossible for features permanently modified by Chinese expansion. To be fair, Beijing is not the only claimant to perform reclamation work, but there is a qualitative difference between building new islands and preventing the erosion of existing ones (such as Vietnam has done at Spratly Island). The best hope for a long-term system to manage the disputes around the Spratlys requires agreeing to an area of legally disputed water and seabed (the disputes over the actual islands are irreconcilable for the foreseeable future) in which claimants can cooperate. That will require agreement on the status of features and their entitlements, either via negotiation or arbitration.
China’s reclamation work could make such agreement by negotiation significantly more difficult, and could make arbitration all but impossible. Claimants, and interested parties including the United States, should wake up to this danger and seek to head it off before any further damage is done. A joint survey of the Spratlys, performed by the Philippines and Vietnam, preferably with Brunei and Malaysia, and assisted by outside partners, should be launched this year. It is an endeavor that will prove useful to all claimants and which, as a cooperative scientific effort, should not be seen as escalating the disputes.
Read the full analysis at http://amti.csis.org/the-legal-challenge-of-chinas-island-building/