Without causing much of a stir, China has been quietly dumping sand onto reefs and rocks in waters claimed by Vietnam.
In addition to altering the geography of the Spratly (Truong Sa) archipelago, China's land reclamation work on Johnson South, Cuarteron, Fiery Cross, Gaven, and Kennan reefs could be used as a clever legal leverage in an international court battle, particularly if Vietnam doesn't pay attention.
And there's still time to make a difference.
Based on Robert Beckman (1) and Clive Schofield (2)’s analysis of satellite imagery and studies conducted by the United Kingdom Hydrographic Office and the United States National Geospatial-Intelligence Agency, these reefs don't yet qualify as islands.
Reefs, rocks, islands and low-tide elevations
An island is defined in Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) as a naturally formed area of land above water at high tide.
Islands are entitled to the same maritime zones as land territory, including a 12 nautical mile (nm) territorial sea, a 200nm exclusive economic zone (EEZ) and a continental shelf which could extend beyond 200nm.
While Cuarteron Reef has been definitively classified as "a rock," it remains unclear whether the four remaining reefs qualify as "rocks" or "low-tide elevations" -- which stick out at low-tide and disappear at high tide.
Under UNCLOS, rocks are only entitled to a 12nm territorial sea.
Low-tide elevations are not entitled to any territorial boundary of their own, but can be used as base points to measure the territorial sea if they are within 12nm of the mainland or an island.
So, the maximum maritime zone that can be claimed around the Johnson South, Cuarteron, Fiery Cross, Gaven, and Kennan reefs is a 12nm sea.
China's campaign to create artificial islands by pumping dredged sand into the reefs could create a serious legal issue.
China claims that it has the right to build in the Spratlys because they are Chinese territory.
“China has indisputable sovereignty over Nansha Islands,” a foreign ministry spokeswoman, Hua Chunying, said in May, using the Chinese name for the Spratlys.
Chinese officials also argue that Vietnam and the Philippines have built more structures in the disputed region than China, so China is free to pursue its projects.
However, Hanoi and Manila modified existing land masses; Beijing is constructing islands out of reefs that (for the most part) once disappeared at high tide, IHS Jane’s Defense Weekly reported in June -- the same month that the New York Times quoted unnamed analysts as noting that China's southern neighbors hadn't built islands out of reefs or rocks and generally erected their structures before 2002, when China and nine Southeast Asian nations signed the Declaration on the Conduct of Parties in the South China Sea.
All parties to the agreement vowed to “exercise self-restraint in the conduct of activities” that would escalate tensions; they further agreed to refrain from inhabiting any currently uninhabited land features.
Vietnam should gather evidence now
Analysts say the island-building will not strengthen China’s sovereignty claim to the Spratly archipelago under international law.
Article 60 (8) of UNCLOS 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."
However, China’s island-building could cause problems for Vietnam at an arbitration court if Vietnam cannot prove that China's islands are indeed artificial.
Gregory Poling, a Southeast Asia expert at the Washington-based Center for Strategic and International Studies, advised Hanoi to conduct a thorough survey of the Spratlys before China’s reclamation work makes it impossible to determine their original geography.
I agree, however, IHS Jane’s told me it possesses high-resolution satellite images that document these features in the Spratlys both before and during China’s land reclamation campaign.
While China refuses to engage in international arbitration over the sovereignty dispute, Vietnam can still petition an international court for a ruling under UNCLOS.
Maritime disputes could hold Asia back, UN chief says
|United Nations Secretary-General Ban Ki-moon warned Asia Wednesday that competing territorial claims "could hold the region back," though he is encouraged by recent steps to enhance dialogue, which he hopes will prevent "any needless escalation."
"Leaders have a responsibility to resolve their disputes peacefully, through dialogue," Ban said at the Association of Southeast Asian Nations (ASEAN) Summit in Naypyitaw, Myanmar's capital.
"An Asia that can overcome legacy issues and look to a shared future will be even better placed to advance prosperity for all," he said.
Myanmar is hosting the ASEAN summit followed by the East Asia Forum, which US President Barack Obama and Japanese Prime Minister Shinzo Abe will attend.
Vietnam’s Prime Minister Nguyen Tan Dung said: "During the May summit, ASEAN expressed its deep concern about the increasing tensions in the East Sea, which affected peace, stability, maritime security, safety and freedom."
"However, the East Sea situation remained complex so far, with large-scale reclamation being carried out on many reefs and submerged features, changing their original status," Dung said, using the Vietnamese term for the South China Sea.
"These acts contradict the Declaration on the Conduct of Parties in the South China Sea (DOC), which China signed with ASEAN nations in 2002," he said.
To contain escalating tensions, Dung urged ASEAN nations to be more active and have more responsibilities in maintaining peace, security and stability in the region during this summit.
"ASEAN needs to continue requesting related parties to respect and fully abide by the DOC, especially Article 5, which stipulated that all parties must practice restraint and refrain from broadening or accelerating tensions and complicating the situation," he said.
China, Taiwan and four ASEAN nations have competing claims in the sea where concern is growing about an escalation in disputes even as the claimants work to establish a code of conduct to resolve them, Le Luong Minh, ASEAN secretary-general, told Reuters in Myanmar's capital.
"We are seeing a widening gap between the political commitments and the actual actions, the real situation at sea," he said.
In May, China sent an oil drilling rig and its armada to Vietnamese waters. Vietnam and the Philippines have sought closer US ties to counter what they see as China's aggression.
Philippines President Benigno Aquino has said he would address what was a pressing security issue in Myanmar, but indicated some progress on Tuesday during a "meeting of minds" with Chinese counterpart Xi Jinping at an Asia-Pacific summit in Beijing.
China should focus on resolving disputes through international law and dialogue, US deputy national security advisor for strategic communications Ben Rhodes said on Tuesday.
"There cannot be a situation where a bigger nation is simply allowed to bully smaller nations," he told reporters in Beijing, where Obama attended the summit.
Singapore sees the maritime disputes as one of the region's biggest threats to security, Foreign Affairs Minister K Shanmugam told reporters.
Singapore will push for progress on a code of conduct that will reduce the potential for disruption to trade, he said. (Thanh Nien News, Reuters)
*The writer is a South China Sea researcher and founder of www.seasresearch.wordpress.com. The opinions expressed are her own.
(1) Professor Robert Beckman is the Director of Centre for International Law, a university-wide research center at the National University of Singapore (NUS).
(2) Ph.D. Clive Schofield is Professor and Director of Research, Australian National Centre for Ocean Resources and Security, University of Wollongong, Australia.
Beckman's and Schofield's studies have been published on The International Journal of Marine and Coastal Law.