Dredging Up Disaster in the South China Sea

China is exploiting a legal gray area to advance its ambitions.

Chinese dredging operations add an interesting complication to the debate over sovereignty, control, and conflict in the South China Sea. The Spratly Islands are presently claimed by both China and the Philippines. Each party to the dispute makes claims that are intended to define the interpretation of events. However, it is not always the case that these interpretations fit the facts. As part of their efforts to assert their claim to ongoing sovereignty in the area, China is engaging in significant dredging operations there. The Chinese are involved in dredging operations on five different reefs and has created some 2,900 acres of land in the Spratlys. This behaviour sits within murky and sometimes undefined legal frameworks, but often clashes with Beijing’s official reasoning for their behavior.

 

Manila’s Response:

Facing a drastic military imbalance, Manila based its protest to China’s behavior within a legal framework. Their position hinges on a number of legal documents including the 2002 Declaration of Conduct in the South China Sea. This is firstly tenuous because Beijing is not a party to this document. However, their case draws strongly upon section five:

5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner. -2002 Declaration of Conduct in the South China Sea, Part 5

The Philippines assert dredging operations are designed to assist in placing Chinese infrastructure on islands that have thus far been uninhabited. Indeed, when looking at the photographs of the area taken by supporters of the Philippines and visiting journalists, it appears that this is exactly what China is doing. While it is perhaps too early to unpack how exactly this strategy will impact ongoing tensions over sovereignty in the South China Sea, it is possible to discuss some of the advantages China can gain from this situation.

There has been a direct link between the cultivation of these islands and the development of Chinese infrastructure in the area. One of the dredging operations located in the Johnson South Reef appears to have created enough space for the building of an airstrip. A possible interpretation of Chinese behavior could be the that China is simply seeking to hand off day-to-day operations in the area to land-based forces, rather than relying on maritime capability. As such, it might not be prudent for states such as the Philippines to see this as an intended provocation. China could see this behavior as not violating the status quo. Notwithstanding this, the occupation of previously uninhabited islands is unlikely to undermine the narrative being put forward by Manila that China is attempting a slow takeover of the area.

 

International Law:

The occupation of these islands also impacts on the status of islands themselves. This has flow on impacts to the kind of territorial claims that China is making in places like the Johnson South Reef. Although the Philippine government has protested these actions under its agreements with ASEAN (an association in which China is an observer of, but not a full member), the legal case does not necessarily favor Manila. The United Nations Charter on the Law of the Sea (UNCLOS), an agreement to which both China and the Philippines are signatories, states:

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. - UNCLOS Part 8

This means that if China were to occupy these islands, their status under UNCLOS might change and result in claims to a significantly greater exclusive economic zone in the area.

An occupied island sustains a 12 nautical mile territorial zone, but China’s relationship with Exclusive Economic Zone (EEZ) territory is quite complicated. Certainly China has a great deal to gain in terms of economic space from these dredging operations but UNCLOS does not allow that same economic territory to be policed as territorial waters. Beijing, however, has ambitions to change the way EEZ space is considered under international law, preferring a view that allows them to maintain a monopoly over legitimate military deployment in the area in the same way territorial zones are defined. This debate impacts significantly on China’s relationship with the United States, but it also relates to the sort of gains Beijing is seeking to make by converting these islands into inhabited islands. China is therefore seeking to exploit the definitions of UNCLOS whereby an artificial island does not have status, but an inhabited island does. China is attempting to convert uninhabited islands into inhabited ones while bypassing the claim that they are ‘artificial’. This area of international law is untested.

 

Beijing’s Position:

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