In each instance, other claimants were the first to roil the waters.
But China’s response to actions by other claimants has been heavy-handed, disproportionate to the provocation at hand and, at times, designed to destabilise an already-delicate situation. That said, none of the actions by claimants, China included, has violated international law — even if some of the actions have operated in grey areas where definitive rules are lacking (such as in respect of the status of maritime historic rights). The same cannot be said about recently-publicised actions by the US Navy in these contested waters.
On 20 May, a US Navy P-8 Poseidon surveillance aircraft directly flew over a Chinese administered artificial island constructed atop a Spratly’s feature (the Fiery Cross Reef) in the South China Sea. The American crew insisting that it was flying through international airspace. The overflight was provocative, dangerous and inconsistent with international law. Worse, the most senior US diplomat for the East and Southeast Asia region appears not to grasp this, insisting that the flight was ‘entirely appropriate’.
International law on artificial islands, installations and structures is very clear. The UN Convention on the Law of the Sea reads: ‘In the exclusive economic zone, the coastal state shall have the exclusive right to construct artificial islands, installations and structures; the coastal state shall have exclusive jurisdiction over such islands; [it] may, where necessary, establish reasonable safety zones around such islands … [so long as these zones do] not exceed 500 metres around them, measured from each point of their outer edge; [all vessels] must respect these safety zones’.
China is legally entitled to reclaim and construct artificial islands and installations in the sea areas adjacent to the land features that it administers within the Spratlys chain. There is no rule in international law that bars a coastal state from undertaking this kind of reclamation at sea.
And, so long as the feature resides within the 200-nautical-mile exclusive economic zone (or median line thereof) of an ‘island’ administered by China in the Spratlys, Beijing is entitled to reclaim and build atop that land feature — even if it is submerged at high-tide. Three of Beijing’s seven administered features in the Spratlys protrude above sea level at high-tide and could comport to the technical definition of an ‘island’. If Itu Aba/Taiping Island — an ‘island’ that is administered by Taiwan — is considered to be Chinese territory as per the ‘One China’ policy, then every China-administered feature in the Spratlys chain is encompassed within this exclusive economic zone area up to the median line.
China also has the right to exercise exclusive jurisdiction over the waters and airspace above the artificial island, out to perimeter of 500 metres from its outer edges. Establishing such a safety zone has nothing to do with unilateral enforcement of a military exclusion zone or an air defence identification zone (ADIZ) as some have claimed.
It follows that the US Navy by directly flying over the artificial island has violated Beijing’s rights. Admittedly, the US is not a party to the Law of the Sea Treaty and hence is not bound by its strictures. By the same token, the US’ customary navigation and overflight freedoms do not override the prescriptive treaty-based rights that accrue to Beijing in the airspace and adjoining waters of its artificial islands, installations and structures.
The flights are not just legally untenable and dangerously escalatory; they also have implications beyond the immediate legal infringement. Specifically, they are also a standing invitation to the Chinese to send surveillance flights through the airspace directly above the disputed Senkaku/Diaoyu islands. In November 2013, Beijing declared an ADIZ in the East China Sea, which controversially included the airspace over these disputed islands. China has until now refrained from conducting non-commercial flights through this airspace. But it would be within its rights as a claimant to take such provocative and unwise action. It is extremely unwise for Washington to lay the groundwork for such behaviour through its own errant actions in the South China Sea. To rein in its Spratlys overflights would be the sensible course.
The driver of America’s actions in the Spratlys is a growing and pervasive mind-set within the Beltway that insists that the US must ‘do something … anything’ to demonstrate active resolve in the face of regional anxiety over China’s use of military and paramilitary force to allegedly change the status quo.
If that is indeed a sensible strategic objective, US (and other claimants’) naval vessels and aircraft could operationally assert their navigational and overflight freedoms beyond the 500-metre safety zone of China’s artificial islands that are built atop low-tide elevations. Such features are not entitled to a territorial sea. Common sense would dictate that as a precaution the overflights should be kept some distance away from the 500-metre zone.
But no party in the South China Sea should engage in non-commercial passage through the airspace above an artificial island, installation or structures that they do not administer or are obliged to protect. For the United States to do so would be to violate international law; for other claimants to do so would be to engage in dangerously provocative actions.
High seas navigational and overflight freedoms in the waters adjoining the disputed land features in the South China Sea have not been violated, despite a rhetorical tendency to inflate the threat to these freedoms. The exercise of these freedoms, especially by non-claimants, should not interfere with the sovereign rights and jurisdiction of those who are claimant parties in these waters.
Sourabh Gupta is a Senior Research Associate at Samuels International Associates, Inc., Washington, D.C.
An artificial island has no territorial sea, and thus has no sovereignty over airspace. A 500 meter safety zone does not have the properties of a territorial sea regarding airspace – though you might, I suppose, argue that it extends 500 meters upward – or at least enough space to avoid accidents. However, article 60 only addresses ships, not aircraft, in regards to safety zones.
Islands, however, do have territorial seas, and that includes sovereignty over the airspace. So flight over an artificial island or platform is not comparable to flight over real islands.
Regarding ADIZs, the legal basis for such zones is that failure to abide by a country’s notification requests within such a zone may preclude entry into the airspace above the land and territorial sea. A legally correct ADIZ does not preclude passage outside the territorial sea – that is why Russia is free to fly bomber missions within the US ADIZ but not within the territorial sea, and it is why the US doesn’t not view such missions as a violation of international law.
The author seems to equate “exercising administration over” with “having sovereignty over.” But the two are not the same. Do the Chinese have sovereignty over these islets? I don’t think so.
The author’s link to the UN Convention on the Law of the Sea in fact takes the reader to the transcript of a State Department press conference of 21 May 2015.
While I found reading this transcript quite edifying, I am more interested, perhaps like Mr Ho, in finding out where the Convention eliminates the distinction between sovereignty over an island or a feature and merely its ‘administering’.
LOS does not delve into territoriality-related determinations. At best, it says that artificial islands and low tide elevations (beyond the territorial sea of the mainland or an island) are not entitled to a territorial sea. One can infer that such islands and LTE’s, thus, are not capable of being appropriated as ‘territory’ by a sovereign. Earlier tribunal decisions were silent on this point but a recent one did come down in favor of this inference.
The Chinese Govt. agrees that artificial islands and LTE’s are not entitled to a territorial sea but contests the point that LTE’s cannot be appropriated as territory. For them, it is still an open question because that tribunal which struck down the territorial appropriation of LTEs didn’t provide legal analytics or backing to support why it was the case. So they maintain that this point (status of LTEs) remains an open question, and till it is sorted out China can claim sovereignty over these features (without claiming an appurtenant territorial sea).
In any case, each of these low-tide elevations resides within 200 nm miles, or median line thereof, of a Chinese administered ‘island’ (i.e. that which possesses the attribute of sovereignty). On this basis, China can exclusively exercise sovereign rights and jurisdiction, not sovereignty, over the airspace and adjoining waters up to 500 meters from each artificial island built on a low tide elevation.
Hope this helps.
Best, Sourabh
What do you think about flying over a carrier (an artficial platform)?
Its the land feature – submerged or above sea – that counts. Not the artificial island, platform or structure
“If Itu Aba/Taiping Island — an ‘island’ that is administered by Taiwan — is considered to be Chinese territory as per the ‘One China’ policy, then every China-administered feature in the Spratlys chain is encompassed within this exclusive economic zone area up to the median line.”
Well it isn’t because Taiwan isn’t China. So that’s that entire argument scuttled.
The fact is that official name is the Republic of China. Also, the ROC maintains it’s the guardian of the entire gold reserve of China in 1949 and the best of the best Chinese national treasure that the ROC government moved from mainland China to Taipei when it lost the civil war in 1949. In fact, the ROC still officially claims all the land and islands of China including Taiping island which ROC still administers to this day.
To add to your point, Brad, even the head of the Taiwanese government will note that Taiwan belongs to (one) China – with respective interpretations of meaning of One China. Cross-straits relationship is not ‘state-to-state’.
While it is obvious to all that each has its own government, to say that Taiwan isn’t China is a viewpoint with no international legal standing. Taiwan is (a part of) China.
Gupta writes:
“”””””China has not been the precipitator of the tensions in these waters — whether it be in initiating resource exploration activities in disputed areas, introducing military vessels to enforce jurisdictional claims, or conducting land reclamation work in the adjoining waters. In each instance, other claimants were the first to roil the waters.”””
Gupta’s use of the term “claimants” obscures the nature of the claims by putting everyone on an equal footing, a case of false balance if there ever was one. Vietnam certainly has a longer and much better historical and legal claim to the islands, while China’s claims, as recent scholarship has conclusively shown, are utterly bogus, as fake as Chinese milk powder and plastic rice. Bill Hayton’s latest piece at Asia Sentinel traces how pro-China writing has impacted the historical writing on the SCS:
http://t.co/qnPUy0lBrT
While Bonnet has shown that the “archaeological record” of China in the South China Sea is based on fakes.
http://www.imoa.ph/wp-content/uploads/2015/04/ARCHEOLOGY-AND-PATRIOTISM.pdf
None of the other claimants is forwarding a recent claim based on fakery and severe distortions of history, in order to underpin naked territorial expansion to islands no government of China ever claimed.
GUPTA: “‘That said, none of the actions by claimants, China included, has violated international law — even if some of the actions have operated in grey areas where definitive rules are lacking (such as in respect of the status of maritime historic rights). The same cannot be said about recently-publicised actions by the US Navy in these contested waters.”””
China has violated international law by illegally seizing islands from their rightful owner Vietnam twice by violent invasion, which is against the UN agreements as well as multilateral agreements. China murdered Vietnamese sailors and soldiers and seized Vietnamese land. No other claimant has performed such actions.
Strangely, Gupta omits that.
So, yes, if omitted actions are included, China really is different from the other claimants. And has been.
GUPTA: “””In November 2013, Beijing declared an ADIZ in the East China Sea, which controversially included the airspace over these disputed islands. China has until now refrained from conducting non-commercial flights through this airspace.”””
Another error. In 2013 China overflew the airspace near islands with drones. A piece from that year:
http://dronecenter.bard.edu/act-war-drones-testing-china-japan-relations/
Chinese officials emitted the usual bombast
“China enjoys freedom of overflight in relevant waters… The Chinese military will organize similar routine activities in the future,”
The US is not provoking but in fact echoing language China has used in abusing and bullying other nations.
Note that the US flight DID NOT fly over the islands but simply in the nearby airspace. Hence, his accusation here of US violation of international law is also wrong.
Gupta’s piece is wrong in both its point of view and in most of its particulars.
Michael Turton
The View from Taiwan
Just a hodgepodge of analysis and misinformation.
The Vietnam-China sovereignty contestation in the South China Sea relates primarily to the Paracel Islands – not to the Spratlys.
For those with a reasonable bent of mind, a fair (and relatively brief) analysis of the strength of their competing claims is available in the 2002 Asian Perspective paper by Stein Tonnesson, “The Paracels: The Other South China Sea Dispute.” A preliminary version of the paper is also available at (but please note the author’s caveat on cover page): http://www.cliostein.com/documents/2001/01%20lec%20paracels.pdf
Regarding the overflight, media reports at the time of writing this post specifically noted that the airplane directly overflew. The link is attached to the post. Subsequent video also show direct overflight – although it is hard to discern if the land feature is above tide or submerged and if it is administered by China or by another claimant.
“If Itu Aba/Taiping Island . . . is administered by Taiwan . . . it is Chinese.. . .(T)hen every China-administered feature within the 200-nautical-mile exclusive economic zone (or median line thereof) of an ‘island’ administered by Chinese Taiwan in the Spratlys, Beijing is legally entitled to reclaim and build atop that land feature. There is no rule in international law that bars a coastal state from undertaking this kind of reclamation at sea.”
Zhongnanhai means in so many words, “ the Spratly Islands are mine because Taiwan’s mine. Butt off!” Et voilà. All in a day’s work. Pretty neat, hey?
The depositary power of the September 8, 1951 Treaty of Peace with Japan could do the region a favor in dusting off that old historical scroll and convening the sequel to the San Francisco Peace Conference. Meanwhile, WWII in the Pacific is still on.
You’re right Jerome. That is what scares everyone outside, and many inside China. We don’t want Nostrodamus’s “flames will come from the east” to be a part of current history when our children go to high school. Nor do we want the countries and cities in Asia that we love to be laid waste. The actions that China has taken are a threat to world peace and will be dealt with accordingly.It woud be sad if such a thing should be necessary. I hope and pray that it is not…
Does the author have any proof that the U.S. plane flew within 500 metres of the artificially reclaimed islands? The video made available on YouTube by the U.S. Navy shows the plane some distance away.
At the time the article was written, western media straight-forwardly reported that the US Navy plane overflew a Chinese artificial island. Even the Economist and, over this weekend, an FT Editorial picked up the reports and reported/argued based on the premise that an overflight had taken place. PRC government too issued a (non-routine)protest.
It seems that something other than a routine FON/Overflight operation did happen … although there are contending versions that say that the plane did not transgress the 500 m and some say did not even enter the 12 nm territorial limit.
Frankly two weeks into the flight, it is for DoD to publicly confirm what it did and did not do that day. Its high-profile caper for television though seems to have somewhat backfired.
Separately, at Shangri La, Def. Sec. Carter was factually wrong to say that China’s artificial islands are constructed on underwater rocks. Wrong. They are constructed on low-tide elevations (LTE) … and the overflight regime over a submerged feature and an LTE might not be the same. Doesn’t inspire a whole lot of confidence about USN actions in the skies above the SCS.
Best, Sourabh
I don’t get it. How can a territory (rocks)which its status is ambiguous at best and subject to dispute have attached to it assumed sovereignty over its surrounding waters and air space. Until the matter is resolved, the US position as I understand it is non recognition. You can’t have violation of something that is not recognised.
Sourabh Gupta states:
“International law on artificial islands, installations and structures is very clear. The UN Convention on the Law of the Sea reads: ‘In the exclusive economic zone, the coastal state shall have the exclusive right to construct artificial islands, installations and structures; the coastal state shall have exclusive jurisdiction over such islands; [it] may, where necessary, establish reasonable safety zones around such islands … [so long as these zones do] not exceed 500 metres around them, measured from each point of their outer edge; [all vessels] must respect these safety zones’.”
But China has never established any territorial seas, published any charts nor declared any EEZs in the area. It’s a bit disingenuous for Mr. Gupta to make things out to be so very clear when they clearly aren’t. Countries don’t just get an EEZ because a researcher thinks they ought to have one. Int’l law and UNCLOS is “very clear” (to borrow Mr. Gupta’a phrase) that affirmative action on the part of the State required and public data on coordinates for any alleged claims must be published. While China has published data on the Paracels (not in compliance with the UNCLOS incidentally) there’s nothing for the Spratlys and the area in question.
Sourabh Gupta states:
“Three of Beijing’s seven administered features in the Spratlys protrude above sea level at high-tide and could comport to the technical definition of an ‘island’.”
Yes, but not all “islands” are capable of generating an EEZ, some are just UNLCOS Art. 121(3) “islands” that are “rocks which cannot sustain human habitation or an economic life of their own” are not entitled to an EEZ or continental shelf.”
Sourabh Gupta states:
“If Itu Aba/Taiping Island — an ‘island’ that is administered by Taiwan — is considered to be Chinese territory as per the ‘One China’ policy, then every China-administered feature in the Spratlys chain is encompassed within this exclusive economic zone area up to the median line.”
This “if” statement in discussing Itu Aba’s potential status as an Art. 121(2) island capable of generating an EEZ is the most honest statement Mr. Gupta makes here. And it’s a big “if”. Big enough, in fact, to be a fact for dispute before the Permanent Court of Arbitration in Philippines v. China case. And what are the chance that Itu Aba — or any other island in the Spratlys — is capable of generating an EEZ? Not so good in the opinion of some of the most respected and objective law of the sea scholars in the world. (See Sharing the Resources of the SCS, M. Valencia, J.M. Van Dyke, N.A. Ludwig (1997), p. 42-44). Any of course, again, there’s been no charts or concrete claims or an EEZ for Itu Aba from China, and even Taiwan has done no more than assert it could claim and EEZ if it wanted. Taiwan hasn’t promulgated any laws or published any data claiming an EEZ.
Mr. Gupta is upset with the confidence in which the “American crew insist[ed] that it was flying through international airspace” and “worse,” the assurance of “the most senior US diplomat” that doing so was “entirely appropriate” when Mr. Gupta is so certain that this overflight was clearly “inconsistent with international law.”
But if we’re honest about things nothing is very “clear” in South China Sea and Mr. Gupta should temper his certainty with further study and investigate the cause for the lack of clarity in the region. It is China that bears the blame for muddying the waters of Mr. Gupta’s crystal clear argument. China has intentionally kept things vague in SCS and it should clarify its claims. It could start by explaining the meaning of its nine dash line claim. It could publish data on alleged territorial sea and EEZ claims, but it hasn’t. Until then things won’t be very clear.
But as far as arguments under international law go, the US claim that it’s overflight was through international airspace is pretty solid. Certainly more solid than Mr. Gupta’s argument that a hypothetical EEZ from a Taiwanese island made the flight “inconsistent with international law.”
In its interim ruling in late-October, the Tribunal constituted in the China-Philippines case had no problems stating that there was no insular feature in the South China Sea within 200 nm of the Scarborough Shoal. Obviously measurements can be made – and by a Tribunal no less – even without any baselines being notified. And any land feature that breaks the plane of the sea at high-tide gets a 12 nm territorial sea. One can even be only a researcher and say that with authority.
The Tribunal in China-Philippines does not care which feature China administers or does not. It will make its determination on the basis of any-and-all insular feature in the South China Sea which China CLAIMS – which is every feature of the Spratlys group at minimum.
On Itu Aba, yes, the tribunal will rule. And you should not pin your hopes that a land feature with its own fresh water source will not be designated an ‘island’ – along with the suite of maritime entitlements that accompanies this designation.
You seem to think everything is fuzzy EXCEPT of course your dear American overflight on which you are very clear that it was legal. Well, there still isn’t clarity if an overflight took place or not. If it overflew any land feature in the Sea that broke the plane of the water at high-tide, the overflight was illegal. In all other instances it was legal and fair.
China had (past tense) been intentionally vague in the SCS so that the sovereignty issues related to many of these tiny land features could be shelved and their underlying entitlements thereafter be shared. Obviously, other parties seem to want to operate the other way, i.e. as per UNCLOS and its exclusivity prerogatives. But if such exclusivity-based prerogatives are to kick-in, perhaps all parties should first get their territorial sovereignty claims adjudicated first. The ICJ does do this sort of stuff after all. It will be easier to determine the entitlements of the features thereafter.
You’ve side stepped the UNCLOS Arts. 16 & 121 analysis (again). There simply are no EEZs in the area you are referring to to in this article. US aircraft aren’t obligated to observe a researcher’s theoretical EEZ even if Itu Aba were capable of generating one, which it’s not as we’ll soon learn from the Tribunal.
As you know (one would hope) none of the claimants have clarified geographic features are islands as per Art. 121 nor have charts or geographic coordinates been issued for any straight baselines as required by Art. 16. As a researcher one say a great deal about the UNLCOS with authority but that doesn’t mean you can create rights where none have been claimed. To rely on the Convention for one piece of your argument and disregard in another just isn’t cricket.
Don’t let your anti-Americanism get the best of you. One, it’s not “my” dear America as I’m not a national; and two, I hardly said anything was clear only that the US argument was “pretty solid” as things go in the SCS, certainly on firmer ground than your hypothetical Taiwanese EEZ protection claim.
It seems not to have quite registered that all Parties, including China, legally exercise their EEZ rights in the SCS on a provisional basis. And as a claimant ‘coastal’ State in the SCS, Beijing too is within its UNCLOS-created rights to claim a provisional EEZ from every above-high-tide feature and exercise jurisdiction too provisionally up to 200 nm from that feature (upto the TS/CZ of the adjacent/opposite State). Until a consensual agreement or judicial decision, this claim to rights and jurisdiction remains provisionally legal and UNCLOS-complaint.
Did it never register that the US and Japan call China’s ‘land reclamations’ out as a “disturbance or violation of the status quo” but NOT a violation of international law? This is worth thinking about before you race to print again.
On Article 16, I already suggested: Lack of basepoints is no bar to laying a provisional EEZ claim or measuring out its provisional distance from the relevant land feature. Just to clear the confusion about the legality or provisional properness (or not) of China’s Spratly’s TS/EEZ/CS claims, let me quote the Tribunal’s interim ruling on this front: “The Tribunal sees nothing improper about this and considers that China is free to set out its public position as it considers most appropriate.” It’s internationally lawful; the Tribunal is satisfied; and you need to reconcile to this reality and brush up on understanding of basic UNCLOS principles and rules.
Scholars may debate on whether any Spratly Islands should be capable of generating an EEZ — the better reasoned arguments such as Van Dyke’s (cited above), in my opinion, are that none qualify. (Thus, the EEZ point is really moot from the start). But NO scholar thinks that an EEZ has been declared in the area you refer to. Even proponents of an EEZ regime in the SCS like Beckman (See e.g. “Defining EEZ claims from islands: A potential South China Sea change,” The International Journal of Marine and Coastal Law 29 (2014) 193–243)), acknowledge this indisputable fact. No EEZ, no EEZ rights to violate.
If you want to make a UNCLOS argument, then advocate that China makes an EEZ claim. As you correctly note the Tribunal’s says: “China is free to set out its public position as it considers most appropriate.” But again (getting tired of repeating this for you) China hasn’t done so in the Spratlys. They are “free to,” but haven’t.
Finally, that you would suggest the need to brush up on my understanding on the UNCLOS is pretty laughable considering you have failed to grasp that EEZ rights under the UNCLOS are not automatic. This is UNCLOS 101, Mr. Gupta. You must have skipped the day they discussed the Exclusive Economic Zone. Here’s a free lesson:
“PART V
EXCLUSIVE ECONOMIC ZONE
Article75
Charts and lists of geographical coordinates
1. Subject to this Part, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with article 74 SHALL BE shown on charts of a scale or scales adequate for ascertaining their position. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation.
2. The coastal State SHALL GIVE due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.”
PROVISIONAL EEZ claim does NOT require charts and list of geographic coordinates. Formal verbal claim suffices. China has relayed this on numerous instances, most recently and clearly, in this Note Verbale: http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf
BTW, I am not sure if you are aware that by your charts/lists standard, vast swathes of the EEZ of the SCS has not been claimed by ANY littoral states. They have made, at best, partial CLCS claims. Would you care to explain how Manila and Hanoi exercise their LOS Convention-related rights then in these unclaimed EEZ waters?
Sourabh,
Following on up Bill Hayton’s comment above. I’m curious why you are so vigorously demanding a putative EEZ for China when, as Bill points outs, China’s own mouthpiece, the Global Times, makes clear that the “Spratlys are not habitable islands and therefore do not qualify for a 200nm Exclusive Economic Zone around them”? https://www.chathamhouse.org/expert/comment/china-moving-towards-compromise-south-china-sea#sthash.X5xhz4Ue.dpuf
Jennifer,
Regardless on whose behalf the Global Times was speaking, the officially stated position of the Chinese Government is that the Spratlys are entitled to an EEZ, i.e. that the ‘islands’ within the Spratlys chain (whichsoever they are) are entitled to more than just a Territorial Sea. Check out the language in the second para on pg. 2 of the PRC Note Verbale to the UN Sec. Gen:
http://www.un.org/depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf
The fact is that the Chinese Government does unambiguously claim a provisional EEZ from the Spratlys in the SCS.
Best, Sourabh