Fun with China - South China Sea Freedom of Navigation Operations

Nice piece at Defence One discussing U.S. Freedom of Navigation Operations in the context of the artificial islands China is creating in the South China Sea:

The point of these operations is to publicly challenge any country which seems to be asserting unjustified legal rights under UNCLOS. China has a longstanding disagreement with this US interpretation of the law of the sea. So they always make protests, and China has sometimes sent its fighter jets out to harass or challenge US spy aircraft.

But the bottom line: freedom of navigation operations are not challenges to “territorial claims” or “sovereignty”; US Navy operations already assume that the other nation has “sovereignty” over the relevant coastline or island. So the US Navy operations near China’s artificial islands can assume that China has sovereignty but still demand the standard transit rights.

Of course, it is worth noting that the US could soon escalate the dispute with China.

The US might take the view, for example, that China is building artificial islands on top of reefs or submerged features which do not entitle China to any legal rights at all (See UNCLOS, Art.60(8): “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.”)

If so, then the US would fly within 12 nm miles or even directly over the artificial islands. Such operations would effectively be a direct challenge to China’s territorial claims, but they haven’t happened yet. 
(Hat tip to James Kraska)

China is pushing hard to assert that it has some historical claim to a large chunk of the South China Sea that renders the provisions of UNCLOS inapplicable. See Why US analysis of China’s nine-dash line is flawed:

The State Department study is at its most questionable in its blunt dismissal of the dashed line’s most compelling legal basis: as a geographic limit of China’s historically formed and accepted traditional fishing rights in the semi-enclosed waters of the South China Sea, which are exercised today on a non-exclusive basis. The study argues that China, in acceding to UNCLOS’ exclusive economic zone (EEZ) regime and its exclusivity-based prerogatives, effectively conceded all prior usage-based claims that it may have held in foreign EEZs, even in semi-enclosed seas. Limited rights pertaining to historical uses are confined to the territorial sea of the coastal state. It quotes the International Court of Justice’s Gulf of Maine judgment of 1984 to press its point.

The study’s argument is conceptually and legally flawed. It fails to fully admit that such long-usage (traditional fishing) rights in semi-enclosed seas that pre-date UNCLOS can be exercised non-exclusively, and has been accepted by regional peers by way of practice. Further, such usage rights do not raise sovereignty or title-based claims but only give rise to the right to continue using the waters for these traditional purposes.

Read the source completely.

See also Maintaining Peace and Tranquility in the South China Sea:

International law has not prohibited the reclamation of land or islands from the sea. For instance, Shanghai has expanded greatly since the Song Dynasty by reclaiming land from the sea. Songjiang, now a part of internal land here, used to be coastal many centuries ago. Such reclamation has been continuing all the time – Japan has built Kansai International Airport through reclamation, Hong Kong has done similarly for its current airport, and Dubai has engineered its famous World Islands projects for leisure purposes. Certainly they have expanded their territory and gained associate benefits. Contemporary international maritime law doesn’t disallow such activities.

Maritime reclamation has been a part of our life. For a long time, Japan has been fortifying the Okinotori Islands and demanded an exclusive economic zone derived from its fortified structure. However, America has been silent on this. For a similarly long time, Vietnam has reclaimed and expanded some of the islands of the Spratly under its occupation, earlier than China is doing. Again, America has made no objection.

It shall be noted that China and Vietnam have disputes over some of these islands in South China Sea. China has claimed that it owns all islands/islets on its side of the U-shaped line and it thought that decades ago Vietnam had agreed with China’s claim, made at the time when Hanoi needed China’s support to its independence and unification fight with France and the US. Last year China submitted to the UN its evidence of Vietnam’s past admission of China’s sovereignty over the entire Spratly and Paracel islands. China has difficulty with Vietnam’s negating its past commitment and present occupation oj some of them and subsequent reclamation.

Despite this, China has joined the Declaration on the Code of Conduct (DoC) on the South China Sea with all ASEAN members, committing to using peaceful means only to settle disputes. Lately Beijing has embarked on a process of preparing for negotiating the Code of Conduct (CoC) on the South China Sea, to eventually conclude a multilateral institutional legally bound framework of resolving disputes peacefully in the region. Clearly, China’s handling of the disputes has shown its intent to maintain peace and tranquility collaboratively in South China Sea. It is notable that per the UN Charter, any countries have self-defense right to protect national sovereignty and territorial integrity, with or without specific UN authorization. By working around DoC and CoC parameters on the South China Sea, China is willing to abide by higher standard so as to resolve international disputes through cooperation.

I guess that only works if you assume China has any rights at all to do what it is doing.