China Defends Itself on South China Sea: “We are against the arbitrary distortion of the international law.”

by Julian Ku

There is no shortage of commentary on the growing US-China tensions over China’s land reclamation activities in the South China Sea. I’ve already added my two cents on the legal aspects here, but it’s worth trying to understand China’s defense of its actions.  Here is China’s Foreign Ministry spokeswoman at a press conference responding to comments from US and Japanese leaders that China should abide by international law.

The international law has been constantly brought up by some countries when it comes to the South China Sea issue. If they did read closely the international law, then please tell us which article in the international law forbids China to carry out justified construction on its own islands and reefs? Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom? We are against the arbitrary distortion of the international law. If it is not a practice of double standard, then it must be driven by some hidden motives.

Let me take the two (rhetorical) questions in order:

1) “[W]hich article in the international law forbids China to carry out justified construction on its own islands and reefs?

China has a point here. There is no explicit prohibition under international law on construction on a country’s own “islands and reefs.”  That is why the US calls on China to stop land reclamation don’t have a strong legal basis, especially since it appears most of the other South China Sea claimants have also engaged in some (smaller scale) land reclamation.

On the other hand, it is far from clear China is building out on “islands”. It is likely that it has possession only of “rocks” or maybe even just “reefs.” And it is far from clear that China has title to whatever land features it is using.  But land reclamation alone isn’t a violation of any international law that I am aware of.

2) “Which article allows the vessels and aircraft of one country to monitor the islands and reefs of another country at a close distance? Which article gives the green light to one country’s infringement upon another country’s sovereignty and legitimate rights and interests with the excuse of navigation freedom?”

Here, China is on much shakier ground. As I explained at too much length here, UNCLOS is probably best interpreted to allow surveillance and monitoring by foreign military vessels and aircraft up to 12 nautical miles of a country’s territories, and within those 12 nm if the territory is only a rock or a reef.  China doesn’t agree with this interpretation, and this is the crux of the dispute with the U.S.

Overall, I think China has a strong legal point on land reclamation, but a weak legal point on surveillance and freedom of navigation.  The obvious “compromise”  (or maybe the word is “standoff”) here is for the US to tacitly accede to China’s land reclamation, and for China to tacitly accede to US military surveillance up to and perhaps within 12 nautical miles.  Since the US can’t actually stop China from continuing its land reclamation, and China can’t stop US surveillance, this “compromise” seems like a safe bet. I will note, however, that China’s actions have unleashed the hawkish wing of the China-watching establishment in the U.S. and, over the long term, this may be the most important outcome of this standoff.  The US is taking off the gloves against China and a containment strategy with our new best friends in Vietnam and India  is becoming increasingly likely.

http://opiniojuris.org/2015/06/04/china-defends-itself-on-south-china-sea-we-are-against-the-arbitrary-distortion-of-the-international-law/

4 Responses

  1. Thanks for the post , I was just wondering , how that observation of the author of that post , can be reconciled with the provisions of the :

    ” convention on the continental shelf 1958 ”

    For that convention , clearly states as follows
    :

    ” article 5
    2. subject to the provisions of paragraphs 1 and 6 of this article, the coastal state is entitled to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection.

    3. the safety zones referred to in paragraph 2 of this article may extend to a distance of 500 metres around the installations and other devices which have been erected, measured from each point of their outer edge. ships of all nationalities must respect these safety zones.”

    So , one could conclude clearly : for the purpose of exploration and exploitation , and : establishing safety zones around it , to a distance of no more ( apparently ) than 500 meters .

    Moreover , I quote :

    ” article 2
    1. the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.
    article 5
    4. such installations and devices, though under the jurisdiction of the coastal state, do not possess the status of islands. they have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal state.”

    So, one can conclude, not only, solely for the purpose of exploiting it is permitted , but such installations, have no territorial sea of their own (referring to the 12 sea miles of the author).

    Well , one needs to see also how reconciled with the provisions of :

    ” United nations convention on the law of the sea 1982 ”

    But maybe latter I shall have such ressources . Thanks

  2. Julian, how do you square the Chinese argument that international law does not forbid its land reclamation/construction activity with the 2002 Declaration on the Conduct of Parties in the South China Sea? China (along with other states with claims in the SCS) undertook to “to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features”? This makes it hard to see how land reclamation/construction activity – by any of the interested states – can proceed lawfully without some form of agreement.

    Yet even if you consign the 2002 Declaration to the dustbin of “soft law” and assume that no treaty obligation or a rule of customary international law prohibits in the abstract the type of work that China is undertaking, the crucial fact is that the work affects features that are the subject of competing claims. The question should not be whether a state can carry out construction on its own islands, rocks and reefs, but whether it can do so when sovereignty over those features is disputed. Surely, it is unlawful to engage in land reclamation work on another state’s territory (in the absence of consent). At a minimum, efforts to alter the physical status quo when the dispute is the subject of a negotiating process suggest a breach of the obligation to negotiate in good faith.

    One might also consider whether China has respected any obligations it may have under international environmental law. Has China carried out studies (i.e., impact assessments) to determine how the reclamation work might affect the surrounding waters or nearby features, some of which may fall under the jurisdiction or sovereignty of neighboring states? Has China’s dredging work had an impact on seabed or subsoil that is subject to continental shelf claims by neighboring states? It seems far from obvious that China’s land reclamation activities are as free from legal restraint as you suggest.

  3. Perhaps China is attempting to alter islands like the Spratlies so that (a) it becomes impossible to tell if they were naturally formed, as defined by UNCLOS; and (b) they become capable of supporting human habitation and economic life. See e.g. http://amti.csis.org/the-legal-challenge-of-chinas-island-building/

    Per UNCLOS Art. 121(1), an island is a, “…naturally formed…area…which is above water at high tide…” Unless the island is a rock that cannot sustain human habitation or economic life, it has the same territorial sea, contiguous zone, EEZ and continental shelf as any other land bordering the ocean. See UNCLOS Art. 121(2), (3).

    The Philippines is contesting precisely this issue – the status of the Spratlies as islands – before the Permanent Court of Arbitration. Given this, I question how China’s aggressive reclamation activities (particularly the military aspects of that reclamation) can be in compliance of its obligation not to jeopardize or hamper the reaching of the final agreement on the Spratly issue. See e.g. UNCLOS Art. 74.3 and 83.3; see also http://amti.csis.org/reclamation-in-the-south-china-sea-legal-loopholes-practical-impacts/

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