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Island-Building in the South China Sea: Legality and Limits

  • Tara DAVENPORT (a1)
Abstract

All the claimants in the South China Sea disputes have engaged in various degrees of island-building on many of the geographic features in the Spratly Islands. However, as noted by the Tribunal in the South China Sea Arbitration, none has been on the scale of Chinese island-building on the features which it occupies, which escalated after the Philippines initiated arbitral proceedings in 2013. While the most important aspect of the Award is that it clarified the extent of the respective maritime rights of China and the Philippines in the South China Sea, the Tribunal’s rulings on the reclamation and island-building activities of China are equally significant. To this end, this paper will examine the findings of the Tribunal on the legality of China’s island-building activities as well as legal constraints on such activities (if any). Last, it will explore the implications of these findings for the Southeast Asian claimants and island-building and fortification of the features that they occupy.

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Instructor, National University of Singapore; doctoral candidate, Yale Law School.

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1. “China’s New Spratly Island Defences” CSIS Asia Maritime Transparency Initiative (13 December 2016), online: CSIS Asia Maritime Transparency Initiative <https://amti.csis.org/chinas-new-spratly-island-defenses/>.

2. “China’s Big Three Near Completion” CSIS Asian Maritime Transparency Initiative (27 March 2017), online: CSIS Asia Maritime Transparency Initiative <https://amti.csis.org/chinas-big-three-near-completion/>.

3. South China Sea Arbitration (Philippines v. China) Award on the Merits [2016] Permanent Court of Arbitration, Case No 2013-19, 12 July 2016 [Merits Award] at para. 854.

4. See for example, Eleanor ROSS, “How and Why China is Building Islands in the South China Sea” Newsweek Online (29 March 2017), online: Newsweek Online <http://www.newsweek.com/china-south-china-sea-islands-build-military-territory-expand-575161>.

5. Occupation and construction activities will be used as a short form to describe the initial sending of military personnel to a feature and the subsequent establishment of man-made facilities on the said feature.

6. The claimants are China/Taiwan, Vietnam, the Philippines, Malaysia, and Brunei.

7. See generally, GAO, Zhiguo, “From Conflict to Cooperation?” (1994) 25 Ocean Development and International Law 345 at 346–7.

8. Ibid., at 346.

9. See List of Occupied Features in “Memorial of the Philippines” of South China Sea Arbitration (Philippines v. China) [2014] Permanent Court of Arbitration Case No 2013-19, 30 March 2014, Volume IV at Annex 97.

10. Gao, supra note 7 at 346. Brunei’s sovereignty claim is not clear but it appears to claim two features in the Spratly Islands—Louisa Reef and Riflemen Bank. See J. Ashley ROACH, “Malaysia and Brunei: An Analysis of their Claims in the South China Sea”, CNA Occasional Paper, August 2014 at 15.

11. 2002 ASEAN Declaration on the Conduct of Parties in the South China Sea, Phnom Penh, Cambodia, 4 November 2002.

12. Merits Award, supra note 3 at para. 977.

13. Ibid., at para.1178.

14. There are four groups of features subject to competing sovereignty claims: The Paracel Islands (China/Taiwan and Vietnam); the Pratas Islands (China/Taiwan); Scarborough Shoal (China/Taiwan and the Philippines); and the Spratly Islands (China/Taiwan, the Philippines, Vietnam, Malaysia, and Brunei).

15. For a detailed discussion of the sovereignty disputes, see Christopher C. JOYNER, “The Spratly Islands Dispute: Rethinking the Interplay of Law, Diplomacy and Geopolitics in the South China Sea” (1998) 13 International Journal of Marine and Coastal Law 193.

16. United Nations Convention on the Law of the Sea, 10 December 1982, U.N.T.S 1833 (entered into force 16 November 1994) [UNCLOS].

17. SCHOFIELD, Clive, “What’s at Stake in the South China Sea? Geographical and Geopolitical Considerations” in Robert BECKMAN, Ian TOWNSEND-GAULT, Clive SCHOFIELD, Tara DAVENPORT, and Leonardo BERNARD, eds., Beyond Territorial Disputes in the South China Sea: Legal Frameworks for the Joint Development of Hydrocarbon Resources (Cheltenham: Edward Elgar, 2013), 11 at 20–2.

18. Merits Award, supra note 3 at paras. 7–9. For background on the nine-dashed line, see MCDORMAN, Ted L., “Rights and Jurisdiction over Resources in the South China Sea: UNCLOS and the ‘Nine-Dash Line’” in S. JAYAKUMAR, Tommy KOH, and Robert BECKMAN, eds., The South China Sea Disputes and Law of the Sea (Cheltenham: Edward Elgar, 2014), at 144.

19. Merits Award, supra note 3 at paras. 202–78, 577–626.

20. For a discussion on the history of this principle, see JIA, Bing Bing, “The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges” (2014) 57 German Yearbook of International Law 1 at 1–31.

21. See UNCLOS, supra note 16, at Part II.

22. Ibid., at Part V.

23. Coastal states are entitled to a continental shelf up to a distance of 200 M or beyond that, depending on whether the continental shelf meets certain geological and geomorphological requirements: see UNCLOS, supra note 16, at art. 76.

24. Ibid., at art. 121(3).

25. See Merits Award, supra note 3 at para. 280.

26. UNCLOS, supra note 16 at art. 13(1).

27. Ibid., at art. 13(2).

28. Dissenting Opinion of Judges Bedjaoui, Ranjeva, and Karoma, in the Qatar/Bahrain case (Merits) [2001] I.C.J. Rep. 40 at para. 200.

29. “Memorial of the Philippines” of South China Sea Arbitration (Philippines v. China) [2014] Permanent Court of Arbitration Case No. 2013-19, 30 March 2014, Volume IV, at para. 2.12.

30. Schofield notes that it has been suggested that there are 400 to 500 features, whereas others suggest a more modest range between 150–180: see Schofield, supra note 17 at 20–1.

31. For a more detailed discussion of this, see Tara DAVENPORT, “Legal Implications of the South China Sea Award for Maritime Southeast Asia” (2016) Australian Yearbook of International Law 65 at 68–9.

32. Merits Award, supra note 3 at para. 327.

33. Territorial and Maritime Disputes (Nicaragua v. Colombia) [2012] I.C.J Rep. 50.

34. Merits Award, supra note 3 at para. 309.

35. Ibid., at paras. 309, 1040.

36. Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) [2001] I.C.J. Rep. 40.

37. Sovereignty over Pedra Branca / Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) (Merits) [2008] I.C.J. Rep. 12 at paras. 295–9.

38. Because its jurisdiction depended on the absence of overlapping entitlements, the Tribunal also asked for further information on certain other features. See “Supplemental Written Submissions of the Philippines”, South China Sea Arbitration (Philippines v. China) [2013] Permanent Court of Arbitration Case No. 2013-19, 16 March 2015, at 114–17.

39. The Philippines, relying on the expert reports of Professor Clive Schofield, Professor J.R.V. Prescott, and Professor Robert van de Poll argued that there were twenty-six islands, although the Schofield Report suggested that there were twenty-eight such islands: see Clive SCHOFIELD, J.R.V. PRESCOTT, and Robert VAN DE POLL, “An Appraisal of the Geographical Characteristics and Status of Certain Insular Features in the South China Sea” in “Supplemental Written Submissions of the Philippines”, South China Sea Arbitration (Philippines v. China), Permanent Court of Arbitration, Case No. 2013-19, 16 March 2015, at Annex 513 (hereinafter the “Schofield Report”).

40. Schofield Report, supra note 3, at 87.

41. Ibid., at 23.

42. See Robert BECKMAN, “China’s Island-Building in the South China Sea: Implications for Regional Security” CSCAP Regional Security Outlook 2017, at 40–2.

43. See generally MILANO, Enrico and PAPANICOLOPULU, Irini, “State Responsibility in Disputed Areas on Land and at Sea” (2011) 71 Heidelberg Journal of International Law 587 at 587–640, who try to extrapolate some general principles from various bodies of law, including state responsibility, jus ad bellum and jus in bello rules, as well as the obligation to make every effort to prevent the aggravation of the dispute and not hamper the final settlement.

44. For example, in the 2002 ICJ decision of Cameroon/Nigeria, where Nigeria had occupied parts of Cameroon’s territory, the Court held that “… by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will therefore not seek to ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation.” See Land and Maritime Boundary between Cameroon and Nigeria, Judgment of 10 October 2002, I.C.J. Rep. 2002 at para. 319.

45. The Award also found that China’s construction activities on the seven features was a breach of its obligation under international law and UNCLOS not to aggravate a dispute during dispute resolution proceedings, but this obligation would presumably cease once the dispute resolution proceedings were over: see Merits Award, supra note 3 at paras. 1153–200.

46. Schofield Report, supra note 39 at 88.

47. David ANDERSON and Youri VAN LOGCHEM, “Rights and Obligations in Areas of Overlapping Maritime Claims” in Jayakumar et al., supra note 18, 192 at 222. Arts. 74(3) and 83(3), which oblige states to enter into provisional arrangements of a practical nature pending maritime delimitation, have been interpreted as imposing an obligation on states with overlapping EEZs and continental shelves to co-operate and exercise mutual restraint: see Delimitation of the Maritime Boundary Between Guyana v. Suriname (Guyana v. Suriname) (Award) 30 R.I.A.A. 1.

48. As discussed in note 45, the Award also found that China’s construction activities on the seven features was a breach of its obligation under international law and UNCLOS not to aggravate a dispute during dispute resolution proceedings.

49. See UNCLOS, supra note 16 at art. 77.

50. Ibid., at art. 56.

51. Merits Award, supra note 3 at paras. 697–701.

52. The Schofield Report states that Ladd Reef is a low-tide elevation: see Schofield Report, supra note 39 at 88. Ladd Reef appears to be the only low-tide elevation which falls within Vietnam’s 200 M continental shelf and not within 12 M of a disputed high-tide feature.

53. Merits Award, supra note 3 at para. 305.

54. See “Consolidated Glossary of Technical Terms used in the LOS Convention prepared by the Technical Aspects of the Law of the Sea Working Group of the International Hydrographic Organization”, reprinted in UN Office for Ocean Affairs and the Law of the Sea, “The Law of the Sea: Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea”, Appendix I at 41.

55. Merits Award, supra note 3 at paras. 1037–8.

56. Ibid., at para. 1035.

57. See List of Occupied Spratly Features, supra note 9; See Schofield Report, supra note 39 at 88.

58. O’Connell, D.P., The International Law of the Sea, Volume I, (Oxford: Oxford University Press, 1983) at 488.

59. James KRASKA, “Military Activities on the Continental Shelf” Lawfare (22 August 2016), online: Lawfare <https://www.lawfareblog.com/military-activities-continental-shelf>.

60. Merits Award supra note 3 at para. 1027.

61. Ibid., paras. 1036–7.

62. “Final Transcript Day 2—Merits Hearing” in South China Sea Arbitration (Philippines v. China) [2015] Permanent Court of Arbitration Case No. 2013-19, 8 July 2015, at 22–3.

63. UNCLOS, supra note 16 at art. 87(1)(d).

64. Ibid., at art. 87(2). Installations used to exploit mineral resources are under the authority of the ISA: see UNCLOS, supra note 16 at art. 147.

65. BROWN, E.D., The International Law of the Sea (New Hampshire: Dartmouth Publishing, 1994) at 317.

66. See List of Occupied Features, supra note 9; see Schofield Report, supra note 39 at 88.

67. Merits Award, supra note 3 at para. 940.

68. Ibid., at paras. 979, 981, 983.

69. Ibid., at para. 941.

70. Ibid.

71. Ibid., at para. 983.

72. Ibid., at para. 986.

73. Ibid., at para. 988.

74. Ibid., at paras. 979, 981, 983.

75. Ibid., at para. 990.

76. Ibid., at para. 991.

77. Mox Plant Case (Ireland v. United Kingdom) (Provisional Measures) [2002] Order of 3 December 2001, 41 I.L.M 405.

78. Land Reclamation Case by Singapore In and Around the Straits of Johor (Malaysia v. Singapore) (Provisional Measures), Order of 8 October 2003, International Tribunal for the Law of the Sea [ITLOS].

79. “China’s New Spratly Island Defences” Asia Maritime Transparency Initiative (13 December 2016), online: Asia Maritime Transparency Initiative <https://amti.csis.org/chinas-new-spratly-island-defenses/>.

80. Ben BLAND, “Beijing Installs Defence Systems on South China Sea Islands” Financial Times (15 December 2017), online: Financial Times <https://www.ft.com/content/3575cd8c-c27d-11e6-81c2-f57d90f6741a>.

81. Liu ZHEN, “China, Philippines to Set Up Negotiation Mechanism to Resolve South China Sea Disputes” South China Morning Post (21 October 2016) online: South China Morning Post <http://www.scmp.com/news/china/diplomacy-defence/article/2038993/china-philippines-agree-set-negotiation-mechanism>.

* Instructor, National University of Singapore; doctoral candidate, Yale Law School.

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