Tuesday, May 17, 2016

What makes an island ? Land reclamation and the South China Sea arbitration

From AMTI CSIS by Christopher Mirasola 

We have all heard about land reclamation by the People’s Republic of China (PRC) in the South China Sea, particularly the southeastern region known as the Spratly Group.
But much less is being said about what the Permanent Court of Arbitration just finished considering for the past week: are artificial islands really islands?
According to the Philippines, the answer is straightforward: No.
In its initial statement of claim, the Philippines asked the Court to invalidate China’s Nine-Dash Line (click here for a good overview of that issue) and determine that eight PRC-controlled maritime features are not islands.
Of these eight features, seven are home to ongoing PRC land reclamation.
The Philippines has a strong case for why the PRC’s artificial islands should not be considered real islands.
The UN Convention on the Law of the Sea (UNCLOS) and past decisions by international tribunals suggest that land reclamation will not affect the Permanent Court of Arbitration’s decision because: (1) artificial islands don’t have the legal significance afforded natural islands, and;
(2) land reclamation occurred after the so-called “critical date” when the China-Philippines dispute “crystallized” in international legal terms.

Why This Matters

 Recent land reclamation has dramatically transformed seven disputed maritime features in the Spratly Islands.
These include Mischief, Gaven, Subi, Johnson, Cuarteron, Fiery Cross, and Hughes (McKennan) Reefs.
For example, in 1995, Subi Reef was completely submerged at high tide.
Today, there are 3.9 million square meters of reclaimed land above water at high tide on Subi Reef, and it is home to a pair of wooden barracks, communications array, and helipad.
There are similarly stark changes at each of the other reefs.
Since UNCLOS affords differing maritime based on the geographic characteristics of a given landmass, at first blush these changes could have big implications for both China and the Philippines.
In particular, the Spratlys dispute involves three types of territorial objects at sea:
  1. Low-tide elevation: A landmass above water only at low tide. Outside an existing territorial sea it is not entitled to a separate maritime zone.
  2. Rock: A landmass permanently above water but unable to sustain human habitation or economic life on its own. It is entitled to a territorial sea and contiguous zone, but not an exclusive economic zone (EEZ) or continental shelf rights.
  3. Island: A landmass permanently above water that can sustain human habitation or economic life on its own. It is entitled to a territorial sea, contiguous zone, EEZ, and continental shelf rights.

Before land reclamation, Johnson, Cuarteron, and Fiery Cross Reefs were rocks and the other reefs were, at most, low-tide elevations.
After land reclamation, all six features would be considered rocks, if not islands.
So the key question becomes: do we define the reefs’ legal character by looking at the facts from before or after land reclamation?

Artificial Islands Do Not Generate Maritime Entitlements

According to UNCLOS, an island is: “a naturally formed area of land, surrounded by water, which is above water at high tide.”
For the Philippines to make its case, it must show that reclaimed land should not be considered “a naturally formed area of land.”
You wouldn’t have to break the English language to find some ambiguity in the UNCLOS definition of an island. It could mean islands formed by natural processes or islands composed of naturally occurring objects.[1] If the second definition is correct, reclaimed land would be entitled to all the maritime zones of an island.
But this expansive interpretation just does not hold water.
The Vienna Convention on the Law of Treaties says that we must give treaty provisions their “ordinary meaning” while remaining mindful of their context, purpose and, if necessary, negotiating history.
Let’s start with ordinary meaning.
The New Oxford American Dictionary’s first entry for the verb ‘form’ defines it as to “bring together parts or combine to create (something).” So UNCLOS’ requirement that an island be naturally formed should mean that an island be created naturally.
It would not make sense to interpret “naturally formed” as a noun.
We can see this is true by looking at other UNCLOS provisions.
For example, Article 60 says that countries may “establish reasonable safety zones around … artificial islands” and that “[a]rtificial islands, installations and structures do not possess the status of islands.”
UNCLOS does not define “artificial island” explicitly, but a definition is suggested by the fact that Article 60 differentiates artificial islands, installations, and structures.
Installations and structures ordinarily include objects built of non-natural materials (like concrete and steel in an oil rig).
By using “artificial islands” as a separate term, UNCLOS states that this is a different type of landmass, one that is made of natural objects (i.e. sand) and not man-made objects (i.e. steel).
If artificial islands are made of natural objects, it would not make sense for UNCLOS to define islands as a landmass also made of natural objects.
The only solution, therefore, is for “naturally formed” to indicate the process by which an island is created.
This interpretation is confirmed by the Convention’s negotiating history.
Although there were initially some scholars who thought artificially formed islands should be treated like natural islands, by 1958 they had largely lost the debate.[2]
In fact, the United States specifically added “naturally formed” before “area of land” during negotiations culminating in the UNCLOS text to eliminate most maritime entitlements for artificial islands.[3]
Since then, scholars have agreed that artificially formed islands should not be granted maritime entitlements.[4]

China claims Hawaii-Micronesia : new 251 dash map

International Tribunals Do Not Consider Construction After the Critical Date 

It is possible, however, that the tribunal will not even have to consider this interpretive question because PRC land reclamation occurred after what is called the “critical date.”
The critical date is the time when “the dispute crystallized”[5] between two parties (here, the PRC and Philippines).
In a dispute between Nicaragua and Colombia regarding Caribbean islands, for example, the critical date was when the two countries exchanged diplomatic notes explicitly claiming sovereignty over the islands after Nicaragua issued oil contracts in the surrounding waters.
A tribunal will generally only consider the facts of a dispute as they existed prior to this date.[6]
It is not clear if the Tribunal will fix a critical date in the Spratlys dispute, or what it will be if it does so.
It may decline to indicate a date because the Philippines is not arguing for territorial sovereignty over these reefs.
But assuming that arbitrators do use the critical date, there are three options: 1947 (when the Nationalist government of China first endorsed the Nine-Dashed Line) sometime in the 1970s (when the PRC alleges that the Philippines first occupied maritime features in the region) or April 14, 2011 (when the PRC responded to a diplomatic note from the Philippines protesting the Nine-Dash Line).
Given the Nicaragua/Colombia dispute this third option seems most likely, but much could be disputed about the merits of each date.
Regardless, it is clear that all three options occurred well before PRC land reclamation began approximately 18 months ago.
The current geographic characteristics of these reefs, therefore, simply would not matter.
It is important to note that the Tribunal has not released the Philippines’ legal briefs, so we cannot be certain what topics have been addressed.
But since more than 3000 pages of briefing materials have been submitted, it is safe to assume that the Philippines has addressed all plausible arguments (both UNCLOS interpretation the critical date).

 Final Thoughts

The China-Philippines arbitration implicates a region in which nearly all neighboring states have sovereign claims.
But while there are a number of difficult legal and strategic issues for the Permanent Court of Arbitration to consider, the legal character of PRC-controlled reefs is not one of them.
Here, if anywhere, a straightforward application of UNCLOS should prevail.
No amount of land reclamation can change a reef into an island, nor entitle them to an island’s maritime zones.

[1] Alfred Soons, Artificial Islands and Installations in International Law, 22 Occasional Paper Series Law of the Sea Institute 17—18 (1974) (Showing scholars have argued in favor of this second position).
[2] Hiran W. Jayewardene, The Regime of Islands in International Law 9 (1990)
[3] Id.
[4] N. Papdakis, The International Legal Regime of Artificial Islands 96–97 (1977); Hiran W. Jayewardene, The Regime of Islands in International Law 9 (1990).
[5] Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 p. 624, 652.
[6] Yehuda Blum, Historic Titles in International Law 219 (1965).

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