I’d Like to Be Under the South China Sea in a Crewed Deep Sea Platform in the Shade

by Chris Borgen

Earlier this week, Julian and I each posted about the international legal issues of the Moon and asteroid mining plans of U.S. companies. Those projects may have sounded like something out of Space 1999 but now we hear of one of China’s near-term priorities that sounds like SeaLab 2020.

Bloomberg reports:

China is speeding up efforts to design and build a manned deep-sea platform to help it hunt for minerals in the South China Sea, one that may also serve a military purpose in the disputed waters.

Such an oceanic “space station” would be located as much as 3,000 meters (9,800 feet) below the surface…

This would be by far the deepest long-term undersea facility (as opposed to a deep sea vessel, such as a submarine). By way of context, the NASA Extreme Environment Mission Operations Facility (NEEMO), the “world’s only undersea research station” is anchored at a depth of 62 feet.

China’s leadership explains that, in part, this base will help with a new frontier of resource development, using rhetoric that is at times similar to the arguments some make concerning private space ventures on the Moon and asteroids:

President Xi Jinping said at a national science conference in May: “The deep sea contains treasures that remain undiscovered and undeveloped, and in order to obtain these treasures we have to control key technologies in getting into the deep sea, discovering the deep sea, and developing the deep sea.”

But, beyond looking for deep sea resources, the concern is that the base is part of China’s gambit for sovereignty over much of the South China Sea.  However, while establishing this undersea platform may become part of China’s political argument for its sovereignty claims, it does nothing to support the legal argument. Under the UN Convention on the Law of the Sea (UNCLOS), this undersea platform would probably be treated as an “artificial island,” like an oil rig.  At the time that UNCLOS was being drafted, large undersea bases were more the province of James Bond movies than treaty negotiations, so the closest analogy in the text is what would likely be applied in this case.  (For a discussion on sea platforms, “seasteading,” and sovereignty claims by non-state actors, see this post.)

Although it is not clear where the location of this undersea lab would be, UNCLOS has similar provisions concerning artificial islands located in an Exclusive Economic Zone (article 60) or on the continental shelf (article 80, which refers back to the article 60 text, with any applicable adjustments).

The text from article 60 states:

Artificial islands, installations and structures 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, the exclusive economic zone or the continental shelf.

So, in short, building this base would not change China’s territorial rights.

However, the concern is that, while it may not help the legal argument, another goal of the base may be to bolster the political argument with some military muscle. The Bloomberg article quotes the following:

“To develop the ocean is an important strategy for the Chinese government, but the deep sea space station is not designed against any country or region,” said Xu Liping, a senior researcher for Southeast Asian affairs at the Chinese Academy of Social Sciences, a government-run institute.

“China’s project will be mainly for civil use, but we can’t rule out it will carry some military functions,” Xu said. “Many countries in the world have been researching these kind of deep water projects and China is just one of those nations.”

Whether China actually builds this base–and if so, where–remains to be seen. If it does so, it will also be interesting to assess whether the base turns out to be most useful as a scientific research facility, a political gambit, or a military base.

http://opiniojuris.org/2016/06/10/32618/

4 Responses

  1. They’d yank me in,
    question everywhere I’ve been,
    in that little military base beneath the waves.

  2. ResponseThank you for this really puzzling post Chris.
    I have indeed some doubt as to the legal considerations expressed in the text.
    You made references to articles 80 (and 60) of UNCLOS and to “artificial islands”. Accordingly it seems that you argue that the “undersea lab” (or platform) could not generate territorial waters or otherwise support Chinese territorial claims, because it is “artificial”. Is this the correct understanding?
    I would rather argue that an undersea law or platform is not an island primarily … because it is not “above the water” (art. 121 UNCLOS).
    Article 60(8) when referring to artificial islands, installations and structures seems to presume that they are “above the water”.
    I believe you have touched upon an intriguing aspect of international maritime law – the law of undersea installations – which is at the crossroad between coastal State established rights to exploit marine resources, residual rights of pertaining to the freedom of navigation of other States and the right of the later ones to lay undersea cables and pipelines.

  3. I agree with Jean Paul that a fixed undersea research base would not constitute an island under the definition. Article 121 requires that an island be “naturally formed” and “above water at high tide”. A manned deep-sea platform would not meet either requirement. But the UNCLOS provisions on marine scientific research may be more relevant to this discussion. For example, Article 241 states that “marine research scientific activities shall not constitute the legal basis for any claim to part of the marine environment or its resources”, and Article 259 states that “installations or equipment” for scientific research “do not possess the status of islands”, “have no territorial sea of their own”, and do not affect delimitation of the territorial sea, EEZ or continental shelf.

    Much depends on the location of the planned facility. China has the exclusive right “to regulate, authorize and conduct” marine scientific research in its territorial sea (Article 245), and a similar right within its EEZ (Article 246). The sovereignty disputes in the South China Sea thus have some bearing on where China could construct such a facility. However, the planned facility may also raise tricky questions under UNCLOS about the legal status of activities that combine scientific, commercial, and military aspects.

  4. Thank you for your comments. A couple of responses:

    Jean Paul: I realize that the an undersea fixed platform is not the definition of an “artificial island” which is a fixed platform above the water. My point is that when UNCLOS was written deep sea bases were not in serious contemplation and that the artificial island definition is the closest analogy and what would likely be applied (as opposed to one to moving vessels).

    Ultimately, based on that analogy, the establishment of an undersea base would not lead to rights of sovereignty.

    M.A.: I think we largely agree but I do want to make clear that my analysis was not based on “islands” but “artificial islands,” which are in different clauses in UNCLOS. Thank you for highlighting the clauses related to scientific activities. Rather than one of the purposes of the base, I had decided to focus on the clauses related to the thing itself; that is, whether a platform can lead to sovereign claims. Both routes are consistent and lead to the same result.

    Concerning your point regarding the issue of location: as I noted above, the location still is not known but neither placement in an EEZ nor on the Continental Shelf (nor, one would expect, in the high seas) would lead to a change in *existing* territorial rights. The issue, of course, is that China’s interpretation of its existing sovereign rights over the South China Sea is different from the views of other nations; the addition of this platform should not strengthen China’s claim as a matter of law.

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