Over the past several months, China has constructed a number of artificial islands atop existing atolls and reefs in the middle of the Spratly island chain. The move is China’s latest volley in the dispute over the Spratly archipelago, parts of which are claimed by six different states.
Beijing’s decision to transform existing reefs and atolls into large, artificial islands is an interesting one. It follows in the footsteps of the Philippines’ decision to launch a legal case against China in which the central issue is whether or not the features of the Spratly archipelago occupied by China are, in fact, islands.
[China's constructed islands are to the west of the Second Thomas Shoal]
The Philippines' central claim is that a number of the features that China holds in the South China Sea fail to meet the technical definition of islands set out in the United Nations Convention on the Law of the Sea (UNCLOS), which defines islands as “naturally formed area[s] of land” that are above water at high tide and can sustain either human habitation or economic life. Instead, the Philippines has suggested that the features occupied by China are more appropriately categorized as rocks, submerged reefs, or low tide elevations.
The distinction between islands, rocks, and reefs is crucial one. While islands are entitled to both a territorial sea and a 200-nautical mile exclusive economic zone (EEZ), rocks are only entitled to a 12 miles territorial sea. Submerged reefs and low tide elevations, meanwhile, generate no rights at all. As such, islands have far greater potential to generate claim to resources in the sea than rocks and reefs. Every island, for example, has the potential to generate claim to resources in over 125 663 square nautical miles of water—an area roughly the size of a small country. Rocks, by comparison, may entitle states to as little as 452 square miles of water—closer to the size of a large city.
Building islands out of rocks and reefs
How does China’s construction of artificial islands atop existing reefs and atolls affect its claim to the South China Sea? In short, it doesn’t. Even if construction of the islands were legal—which is disputed—they do little to expand China’s right to exploit the surrounding waters of the South China Sea.
While coastal states have the right to establish artificial island and structures under Article 56 of UNCLOS, they may only do so within their own exclusive economic zone or territorial sea. Are, then, the artificial islands in question within China’s territorial sea or exclusive economic zone? Beijing certainly seems to believe so.
China is not, however, the only nation that has laid claim to the Spratlys. There are five other states—Vietnam, Malaysia, Brunei, Taiwan, and the Philippines— that assert ownership over some or all of the archipelago. And most of these nations disagree with China’s position. The Philippines, for example, has already filed two official protests against Chinese land reclamation at reefs in the South China Sea—arguing that the construction occurred in its waters and was thus illegal.
Unfortunately, the issue of who is entitled to what in the South China Sea is unlikely to be clarified anytime soon, so the legality of the constructed islands remains unclear, at least until the issue of ownership over the Spratlys is resolved.
But even if the constructed islands were legal, they would do little to bolster China’s existing maritime claims. As Article 60(8) of UNCLOS clearly states, “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.” The most that states are entitled to do is establish a small safety zone around such artificial islands, which may not extend further than 500 meters or interfere with a recognized sea lane.
The artificial constructions do not, in short, affect the Philippines' claim that most of the features occupied by China in the Spratly archipelago are rocks, submerged reefs, or low tide elevations. International law simply does not allow states to transform rocks into islands by adding sand.
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