Creeping jurisdiction and the South China Sea

The USA sailing a warship near the controversially-developed Spratly island chain is an act to balance the ledger on maritime freedoms of navigation, argues Marina Tsirbas.

That the US last week sailed a warship within 12 nautical miles of feature(s) in the Spratly chain in the South China Sea is a continuation of longstanding US maritime practice. Viewed through the prism of US-China strategic rivalry in the Asia-Pacific and creeping coastal state jurisdiction, it is an act to balance the ledger on maritime freedoms of navigation.

Within the context of international law, it is unexceptional.

The issues at play in the South China Sea are not just about sovereignty or title to the various groups of disputed islands and maritime features – they are also about the status of disputed features.

Legally speaking, you can’t create your own island.

According to the 1982 UN Convention on the Law of the Sea (UNCLOS), a feature that’s submerged at high tide is just that – a feature. No amount of concrete poured, or runways and buildings put up on a low tide elevation that is below the water line at high tide is going to change its legal status as water to land.

Arcane? Well not really when you consider what rights and rules emanate from the fundamental question at international law of whether something is a rock, an island an artificial feature or just part of the high seas.  The zones generated by each of these features potentially impact on the freedoms of international shipping to sail in and through waters, around and among them. These are the sorts of things that actually matter to mariners of all persuasions.

UNCLOS (which has near universal adherence and is taken in most respects to reflect customary international law) is a package balancing the rights of great seafaring nations and states with large coastal areas and islands and an accompanying desire to extend their coastal state jurisdiction.

The agreement sets a 12 nautical mile (NM) territorial sea, a 200 NM Exclusive Economic Zone which gives rights to marine living resources and the seabed, and recognises a right for states to claim seabed jurisdiction beyond 200 NM.

Importantly, it also set some rules about artificial islands, what constitutes an “island” (a naturally formed area of land above water at high tide) and how maritime zones are to be measured.

A rock gets to generate a 12 NM territorial sea, an island gets a territorial sea and also generates an 200 NM EEZ and a continental shelf (subject to delimitations with neighbours). An artificial island gets to have a 500 metre safety zone.

UNCLOS also confirms the rights of freedom of navigation of the high seas and innocent passage through the territorial sea of an island or mainland. There are some states (eg China, Iran and Oman) which claim that a state needs to give prior notice to the coastal state of the intention of its warships to transit through its territorial sea to exercise this right. In ratifying UNCLOS some states made declarations about their views on innocent passage (including rejecting any need for such notification), others have conveyed their perspectives through practice.

Most countries do not impose a notification requirement. Major players such as the US have consistently denied any requirement for prior notice for their warships to transit a territorial sea and backed this position up with practice. This includes challenging attempts by the USSR to impose requirements on transit in the Black Sea in the 1980s by sailing US warships through the territorial sea.

Flip back to the scenario in the South China Sea last Tuesday.

Sailing within 12 NM of a feature which may or may not be an island can be seen as unexceptional against this backdrop. If it is a rock or island the right of innocent passage as consistently stated and applied is being exercised.

If one has serious doubts about whether that feature was an elevation above high tide before it was reinforced perhaps it is not an island or rock at all (and unless it is within 12 NM of a land feature) all one is doing is exercising the right of freedom of navigation on the high seas.

The same rules apply irrespective of who is reinforcing features in the Sea, and China is not alone in having done this.

China has not clarified the precise nature of its claim in the South China Sea by designating baselines or officially claimed maritime zones from islands (or proactively clarified which features are islands) – the “nine dash line” in and of itself is not a valid means of articulating maritime rights under UNCLOS.

If a feature was in a body of water that one previously sailed through without protest – or even with an exchange of diplomatic protest and response – should it be for the demandeur (the one asserting that they now have enhanced authority to regulate) to prove that it is in fact what they claim it to be? Leaving aside issues of policy, is there any obligation to acquiesce in that shift? What is the status quo pro ante and isn’t sailing within 12 NM of the feature merely a reflection of that?

I liken the situation roughly to a dispute in a strata title setting where one of the owners is planting on communal or disputed land, perhaps narrowing a public easement. Other tenants politely ask the gardener to stop. The body corporate meets and sends a letter of protest. There’s no progress. Certificates of title and maps are produced, courses of conduct over time referred to but there is no-one to adjudicate. The momentum is with the gardener. Picnickers trample the flowers, the public access the easement. The gardener protests: how dare you step on my petunias? Only I can plant there.  How should we interpret the behaviour of the picnickers and public?

While many states do not accept adjudication over competing maritime and territorial claims and boundaries, rulings can be made on whether a feature is an island, a rock or a low tide elevation. In doing so tribunals would look to maps, historical claims, hydrographic charts, before and after satellite images, state practice and learned legal opinion. The Permanent Court of Arbitration following its jurisdictional ruling last Thursday in the Philippines v China case may well rule on the status of some of the features in the South China Sea.

Any country whose maritime navigation passes through the region will be interested to know where they enjoy high seas freedom and where there is a territorial sea of which they need to be cognisant.

While international law clearly does not have all the answers in the South China Sea context, it provides a critical framework for players against which they justify their actions.

The act of the US in sailing a ship within 12 NM of the Spratly feature is consistent with the legal status quo, and seeks to counter-balance the challenge to rights of freedom of navigation from island building activities and creeping jurisdiction.