Are China's Artifical Islands Valid Under the Law of the Sea?

For centuries, China has sought to establish its sovereignty over the seas. In the late twentieth century, China confronted Japan in an attempt to dominate the East China Sea,[1] and today, it seeks to control the South China Sea ("SCS"). China's ambitions for the SCS are not modest. In recent years, China has built artificial islands and military installations on top of existing islands outside its territorial waters, particularly in the Spratly Islands.[2] 

China's actions created tension among countries in the region and their allies.[3]  The Spratly Islands are located in an area of the SCS where the waters of China, the Philippines, Vietnam, Brunei, and Malaysia overlap.[4] However, China’s president does not respect these countries' assertions,[5] claiming sovereignty over 90% of the SCS’ waters.[6]  The United States got involved in the spat and claimed that China's actions violated its right to navigate freely through exclusive economic zones. China disagreed and argued that freedom of navigation does not include military intelligence operations.[7]

Several international legal issues converge in the conflict between the countries claiming sovereignty over the SCS. First, the overlapping of what is known as the exclusive economic zones ("EEZs") of various countries is one of the sticking points in this dilemma.[8]  China claims to have exclusive jurisdiction over the SCS; however, its neighbors disagree. Article 74 of the United Nations Convention on the Law of the Sea ("UNCLOS") states that: "[t]he delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law."[9]  Under UNCLOS Article 74, China, nor the other States, have a demarcated EEZ, as they have not reached an agreement.

But even if the States surrounding the SCS were to reach an agreement on their EEZs, they would still have to comply with several provisions. UNCLOS defines these zones as an: "area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part,”[10] where all States may navigate and overfly freely.[11]  These provisions clarify that the United States and others States may navigate and overfly freely through the SCS.

The other interesting topic is the construction of artificial islands. Throughout history, islands have been built to claim sovereignty. In 1967, a German citizen occupied a platform built by the British army, located in the sea eight miles off the coast of that country, to establish the sovereign state of Duchy of Sealand.[12]  The self-proclaimed president of the Duchy of Sealand sued Germany, claiming that he was no longer a German citizen because he obtained citizenship of the Duchy of Sealand. The German court dismissed the suit because it found that the Duchy of Sealand did not meet the requirements of international law for establishing a State, including not having a natural segment of the earth's surface. In the same year, an Italian, Giorgio Rosa, completed the construction of a platform he called Rosa Island, which was in international waters outside Italy's territorial waters.[13]  This feat was not well received by the Italian government, which destroyed the platform and extended its territorial waters to 12 nautical miles to avoid similar situations in the future.

Unlike Duchy of Sealand and Rose Island, which were feats that were defeated, and carried out by individuals with limited economic and military resources, China has abundant resources to push and defend the construction of its islands in the SCS. However, China's artificial islands are subject to international law even as a global power. The construction of artificial islands is regulated by UNCLOS Article 60[14] and Article 56 (b)(i),[15] which gives States jurisdiction over artificial islands within EEZs.  Article 60 provides that States may construct artificial islands in their EEZs, over which it has exclusive jurisdiction. However, paragraph three (3) of the said article stipulates that the construction of such islands must be duly notified, which China still needs to do. In addition to these provisions, paragraph eight (8) provides that: "[a]rtificial islands...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 ".[16]

China's desire to expand its territorial limits by creating artificial islands in the SCS is unlikely to be fulfilled in light of international law. To achieve its goal, China must begin by reaching an agreement on the EEZ with the other nations with interests in the SCS. If an agreement does not materialize, the strategy of building islands is invalid since, according to UNCLOS, they must be within China’s EEZ, which has not been established. Such constructions do not give territorial rights. Thus, for the time being, the United States will be able to continue navigating or patrolling the South China Sea.

Footnotes

[1] China’s Maritime Disputes, Council on Foreign Relations, https://www.cfr.org/chinas-maritime-disputes/#!/chinas-maritime-disputes?cid=otr-marketing_use-china_sea_InfoGuide (Feb. 2, 2022).

[2] Isabel Ferrer, La Haya deja a China sin base legal para su expansionismo marítimo, El País (Apr. 3, 2021), https://elpais.com/internacional/2016/07/11/actualidad/1468258154_789338.html

[3] Territorial Disputes in the South China Sea, Council on Foreign Relations, https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea (Feb. 2, 2022).

[4] Ferrer, supra note 2.

[5] Center for Preventive Action, Military Confrontation in the South China Sea, COUNCIL ON FOREIGN RELATIONS (May 21, 2020), https://www.cfr.org/report/military-confrontation-south-china-sea.

[6] Ferrer, supra note 2.

[7] Supra note 3.

[8] Ferrer, supra note 2.

[9] United Nations Convention on the Law of the Sea art. 74, 1834 U.N.T.S. 399.

[10] United Nations Convention on the Law of the Sea art. 55, 1834 U.N.T.S. 390.

[11] Id. Art. 58.

[12] In re Duchy of Sealand, Case No. 9 K 2565/77, 80 I.L.R. 683 (May 3, 1978).

[13] Rose Island (Groenlandia 2020).

[14] United Nations Convention on the Law of the Sea art. 60, 1834 U.N.T.S. 391.

[15] Id. Art. 56.

[16] United Nations Convention on the Law of the Sea art. 60 (8), 1834 U.N.T.S. 391.