China's War against International Law in the South China Sea
In medieval times, alchemists sought to transmute base metals into gold. Today, the People’s Republic of China (PRC) is engaged in the geopolitical equivalent of alchemy in the South China Sea, as it seeks to transform reefs into islands. The Pentagon’s annual report on Chinese military capabilities notes that, for the last year, China has been reclaiming land at five of the reefs under its control in the South China Sea. The PRC is already building major infrastructure on four of these artificial islands. At least two of them—Fiery Cross Reef and Subi Reef—are getting airstrips.
Beijing views these actions as “lawful and justified,” since they are occurring on Chinese territory. As the Chinese Foreign Minister Wang Yi emphasized at the National People’s Congress earlier this year, China is building on “its own islands and reefs.” As important, China characterizes these actions are “necessary.” That assertion is likely rooted, in part, in the fact that none of China’s claimed features have an airstrip, unlike almost all of the other claimants’, including Taiwan’s Itu Aba, Malaysia’s Swallow Reef (where Kuala Lumpur has also reclaimed land), Vietnam’s Southwest Cay, and the Philippines’ Pagasa island.
Another important factor is Beijing’s development of Hainan Island—the site of China’s newest spaceport, as well as a new aircraft carrier berth and submarine pens. As Hainan Island grows in strategic importance, so grows Beijing’s desire to create a “buffer zone” in the South China Sea. Moreover, the region contains major economic assets, including rich fishing grounds and potential hydrocarbon deposits.
But China’s decision to build islands (habitable territory) where there had previously been only rocks (an uninhabitable feature that breaks the surface) and reefs (submerged features that did not break the surface) is also an attempt to alter facts on the ground (or in the water). As such, it challenges an array of international laws. In particular, it is an attempt to create new features (islands) that would project both territorial waters (with a twelve nautical mile limit) and exclusive economic zones (EEZs) extending 200 nautical miles. Rocks extend only twelve nautical mile territorial waters, and reefs project nothing.
These Chinese actions, moreover, occur in the midst of longstanding efforts to alter the nature of EEZs, from international waters where the owning state has primacy over natural resources, to essentially territorial waters through which other states might be able to pass freely. China has tried to press its arguments in this regard through both legal warfare (also known as “lawfare”) and physical obstructionism—such as the interference with the USNS Impeccable and the USNS Victorious (among other vessels) in 2009. In short, China is undertaking a basic challenge to the nature of the land features at sea and to freedom of navigation.
To counter China’s efforts, Washington is certainly considering new ways to deal with Beijing’s challenge. Options include overflights of the man-made islands, and dispatching U.S. Navy ships to within 12 nautical miles of the reefs, to underscore that no territorial waters extend from these artificial islands. Already, the USS Fort Worth, a new littoral combat ship, has sailed into the waters around the Spratlys; the Chinese have trailed the American vessel with a frigate of their own. The intended American message is clear: China has neither the power nor the right to unilaterally overturn the status quo in the South China Sea, or to rewrite international laws and treaties (or geography).
The American approach is not new. American naval vessels have long undertaken actions to uphold and reinforce freedom of navigation—and not just against the PRC. U.S. Navy vessels, for example, have made “operational assertions” of freedom of navigation in waters claimed by the Philippines and Malaysia. In 1988, it exercised the right of innocent passage through Soviet territorial waters in the Black Sea. Indeed, the Navy’s Judge Advocate General issues the “Maritime Claims Reference Manual,” a guide to the various maritime claims of coastal nations, in order to support the freedom of navigation program.
Nor does Washington’s possible moves change the United States’ stance regarding sovereignty disputes in the region. The United States has consistently refrained from taking any position regarding the various sovereignty claims in the South China Sea. Instead, as then-Secretary of State Clinton announced at the 2010 ASEAN Regional Forum, the United States supports a peaceful resolution of the various territorial disputes, based on claims to maritime space “derived solely from legitimate claims to land features.”