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China, US, reclaimed islands [updated]

October 27, 2015

A US warship finally sailed by one of the reefs-built-into-islands constructed by raising reclaimed sea-floor material above the waterline. (Hong Kong’s airport was built with similar techniques).

The main issue is economic control of the natural resources in the South China sea, as well as broader issues of sovereignty, world order, international law, etc. The details of the incident surround the 12-mile territorial zone a country gets around its land. Question being, do the reclaimed Islands belong to China?

On the one hand, China built them and is occupying them. To this day, possession is 9/10 of the law, as international law has a sort-of unwritten statue of limitations on unjust acquisitions. Moreover, in this case there was only an act of construction involved, in contrast to the vast majority of land ownership claims on earth, which are traced back to an act of conquest.

The opposite case, and also a very strong one, is that the reefs which China built up are in a zone which other countries have a claim to, so it was not exclusively theirs to build up in the first place. And moreover, the whole thing is an obvious legal loophole gambit to give legal justification for exclusive Chinese control of the South China sea — a claim they’re not at all shy about.

The relevant international treaty is the UN Convention on the Law of the Sea (UNCLOS), signed by most countries, but interestingly, not signed by the U.S., which if I understand correctly, has the position that we accept clauses of the treaty that are compatible with our interests we like but reject clauses that are opposed to U.S. interests or limit the reach of US sovereignty.

This last point factors strongly into the pissing-match rhetorical aspect of the situation. Nowadays, when US officials talk of international law most people just look away, but no doubt the Chinese will be more than happy to save the video clips of these statements to manipulate and replay out of context later.

They also get a sort of get-out-of-jail-free card they can now play in case they are accused by the US of making borderline-aggressive moves. Keep in mind, we have set the bar for this sort of thing very, very low.

The smart thing for the US to do? Bring in the U.N., strengthen international institutions based on reciprocity and universality, and find a way to convince the rest of the world that the same rules of international law apply to both weak and strong states. Smart thing for China to do? Buy the cooperation of one or more of the countries with maritime claims in the South China sea.

update

A pretty important legal point is that UNCLOS specifically refers to naturally formed islands, which would make the artificial islands moot in terms of the UNCLOS III treaty (which China did ratify). See below.

http://amti.csis.org/what-makes-an-island-land-reclamation-and-the-south-china-sea-arbitration/

150514_spratlyOutpostsMap

This would raise the stakes to “exceptional-nation” status.

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