By Prashanth Parameswaran
Beijing will continue to ignore international law while continuing to unilaterally change the status quo in its favor and increase its military capabilities to make it more difficult for the United States to challenge it.
In an earlier piece, I considered this proposal as part of the larger case for a more robust U.S. approach in the South China Sea.
But what is the logic behind this specific proposal, how would it work in practice, and what would its implications be?
The essence of this proposal is to physically challenge the legality of China’s land reclamation activities in the South China Sea.
Many have worried that Beijing may try to suggest that its reclaimed features built on low-tide elevations are islands or rocks, since that would then allow them to generate maritime claims (a territorial sea of 12 miles, along with an exclusive economic zone and a continental shelf for an island, and a territorial sea of 12 miles for a rock).
Yet in fact, the United Nations Convention on the Law of the Sea (UNCLOS) makes it clear that such features would not be able to generate any maritime claims.
Low-tide elevations are not capable of generating claims themselves per se, with the idea being that they are distinct from islands because they are inundated at high tide.
Neither do “artificial islands”.
According to Article 60(8) of UNCLOS, “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.”
Under the proposal being considered, U.S. Navy ships and aircraft would be used to illustrate this point.
To take a concrete example, U.S. Navy ships would do so by passing through within 12 miles of one of the reclaimed features to show that they do not recognize that these features qualify as islands or rocks that generate a 12-mile territorial sea.
If this occurs, China would be in a bind.
In order to say that this passage was an infringement, it would have to publicly claim that these low-tide elevations were a rock or island entitled to a territorial sea, which would put it in clear violation of international law.
If, on the other hand, it choose to remain silent, it would essentially have tolerated a very direct challenge to the legal status of its land reclamation activities.
The United States, meanwhile, would have demonstrated its commitment to international law, shown its willingness to apply it using not only words, but actions, and prodded Beijing to clarify its extent of its claims.
Of course, this proposal may have its fair share of risks and limitations depending on how it is carried out and how Beijing responds.
The United States would essentially be immersing itself in a contested area where features can be defined differently – and as a result, generate different claims – in order to support an international legal position that China may not agree with.
Washington would have to be careful to ensure that it is making this statement with regard to the right features and is maintaining sufficient distance from other features that might generate maritime claims.
Such an act also carries with it the chance of an accident or miscalculation should U.S. and Chinese vessels or aircraft come into contact.
While this is a chance that Washington may ultimately be willing to take, it is important to explore the consequences of these actions.
As it is, U.S. aircraft flying near, not within the 12-mile zone around China’s features, havereportedly already been notified by Chinese military officers that they are nearing Chinese territory according to The Wall Street Journal.
And as The Diplomat reported earlier, China has already responded to the proposal – albeit predictably – by vowing to stand firm in defense of its sovereignty and warning other actors against taking “any risky or provocative actions.”
Furthermore, it is unclear whether this move would force China to clarify its claims.
Beijing could simply issue a general statement accusing the United States of undermining peace and stability in the South China Sea and remain mum about its claims while its land reclamation activities continue.
Perhaps most importantly, while this move would get at the issue of the legal implications of China’s land reclamation activities, as with the Philippines’ pending case at the arbitral tribunal at the Hague, there is always the chance that Beijing will continue to ignore international law while continuing to unilaterally change the status quo in its favor and increase its military capabilities to make it more difficult for actors like the United States to challenge it in this way further down the line.
This is why, as I pointed out in an earlier piece, it is essential to view these proposals as part of an overall U.S. South China Sea policy, rather than in isolation.