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| Image: Flickr User - Official U.S. Navy Page |
By Brendan S. Mulvaney
The U.S. needs to carefully consider the implications of its South China Sea operations for international law.
Over the course of the last several years, tension in the western Pacific has been building. Naval buildups and military modernization efforts continue apace, despite economic downturns. Deployment of ships and new aggressive actions by surface fleets continue unabated. Most recently, plans to spend billions of dollars building up islands that are far from the continental territory have been put into motion. And those are just the actions by the United States.
For its part, China has been acting more assertively as well. Although it is certainly not the sole instigator in the region, it is by far the largest. Since 2010, which not coincidentally coincides with the start of historically high oil prices, China has continued to adopt more assertive positions and actions when it comes to enforcing its claims in the South China Sea. Over the course of the past year, China, as well as Vietnam and the Philippines (a U.S. treaty ally), has undertaken a series of projects to build and expand its claimed territories in the region. This has been the subject of much reporting and hype, and has elicited multiple calls from the U.S. and others for all parties to halt the build-up of these areas. The most recent development is that the U.S. Navy sailed a military ship, a destroyer, within 12 nautical miles of one of the ‘features,’ aka shoal of rocks, in the region, thus touching off another round of escalating tensions.
The thorny problem here is that the United States is not a claimant in the region, is not a member of ASEAN, and has not signed the UN Convention on the Law of the Sea (UNCLOS). As such, the U.S. has little to no legitimate standing to actually take actions to intervene or influence what goes on in the South China Sea, outside of the diplomatic arena, or in the global commons of international waters.
The main justification for the recent patrol revolves around the issue of whether or not these ‘features’ should count as islands at all. UNCLOS says, “An island is a naturally formed area of land, surrounded by water, which is above water at high tide… Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The convention further 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.”
Read the full story at The Diplomat