South China Sea Strategies for other nations (Not China)

Jeff Head said:

So, if they take a reef that gets covered over at high tide...and build it up as they have done...then you are saying that the resulting land mass, that is not covered at high tide, and is now an island, does not count as land?

Or is a man-made formation that also get covered at high tide what is not considered land?

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Samurai Blue is right. Part VIII of the LOS Convention defines an island as "a naturally formed area of land, surrounded by water, which is above water at high tide" (Article 121(1)). The Convention also makes clear that "artificial islands, installations, and structures do not possess the status of islands. Natural formation is easy to understand and what is happening with reclamation is obviously not natural. Unfortunately the facts on the ground are being changed as we speak. In practice, it will be difficult to determine pre and post status given the vast reclamation being undertaken. In a legal dispute, the strength of a case is either based on law or facts. I don't believe China has either on its side and hence it is being evasive on law while changing the facts

SamuraiBlue said:

The natural formation part only counts and if was not above water at high tides then no matter how much concrete and sand they pour in it is not considered land therefore there is no territorial limits to that formation.
PRC is a signatory of UNCLOS and is a willing participant to the treaty so they should know better then to bury it then call it their territory.
The nine dash line goes against UNCLOS since land is required to make any territorial claim to the surrounding waters around it.

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I agree with what you said about everything about high tide and natural formation, but for the record, the nine dash line territorial claim was made and "inherited" prior to the existence of UNCLOS in 1982 (the nine dash line was drawn up in the late 40s by Chiang Kai Shek's ROC).

In other words, the actual basis of the nine dash line was never created on the basis of UNCLOS but rather historical reasons of the time, and the question is whether the nine dash line is automatically invalid because of China being signatory to UNCLOS.


As for some of the reclaimed formations, such as Fiery Cross reef recently featured, what might end up happening is China not acknowledging that the reclaimed islands themselves are natural formations, but at the same time not acknowledging them as international territory either. In other words it'll be a piece of large land in legal limbo, but with PRC structures and possibly some PLA aircraft and assets stationed there. The PRC might not even choose to use the reclaimed islands as a means of asserting sovereignty of 12nmi of waters and airspace around the islands, but simply as a large "reef" that happens to be able to support air operations.
In the same way that a US aircraft carrier is a their sovereign territory but doesn't mean the 12nmi of waters around it is US territorial waters, the reclaimed islands/AKA "aircraft carrying reefs" are sovereign PRC territory but PRC may simply not choose to claim 12nmi territorial waters and airspace rights given it would be legally untenable. So instead what may happen is a small military exclusion zone around the aircraft carrying reefs instead.

I think there is some possible evidence the PRC are aware of this: during the encounter with the P-8, the PLAN side stated "military alert zone" rather than territorial airspace.

Sorry but since PRC is a signatory of UNCLOS and as a willing participant she is required to abide the rules in which the treaty dictates. UNCLOS does not recognize PRC's claim under the treaty's definition.
You can't be part of an international party while still adopting something that goes against it.

SamuraiBlue said:

Sorry but since PRC is a signatory of UNCLOS and as a willing participant she is required to abide the rules in which the treaty dictates. UNCLOS does not recognize PRC's claim under the treaty's definition.
You can't be part of an international party while still adopting something that goes against it.

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Rules and laws can be changed.

SamuraiBlue said:

Sorry but since PRC is a signatory of UNCLOS and as a willing participant she is required to abide the rules in which the treaty dictates. UNCLOS does not recognize PRC's claim under the treaty's definition.
You can't be part of an international party while still adopting something that goes against it.

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Well SamuraiBlue, the answer is yes and no. It's true Communist China is an UNCLOS signatory and subject to both the responsibilities and benefits enshrined in the treaty. However, UNCLOS doesn't deal with sovereignty arguments, and current SCS claims/counter-claims existed before the creation of UNCLOS.

Equation said:

Rules and laws can be changed.

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Well it hasn't as of yet which means PRC is in violation of.
A nation can't change international rules to meet their own needs. All signatories are required to agree to those changes to ratify it.

SamuraiBlue said:

Sorry but since PRC is a signatory of UNCLOS and as a willing participant she is required to abide the rules in which the treaty dictates. UNCLOS does not recognize PRC's claim under the treaty's definition.
You can't be part of an international party while still adopting something that goes against it.

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That's the problem though -- China's position from the way I've read it, is that the islands under the nine dashed line are "inherently" its territory, and therefore China would agree that UNCLOS applies to all the islands within the line because they are seen as "sovereign territory" to begin with.

In other words, China being signatory to UNCLOS absolutely does mean the rules will apply to all its sovereign coast... including the islands within the nine dashed line. However signing up to UNCLOS does not mean the basis of China's sovereignty and claim over the (islands in the) nine dashed line is dependent on UNCLOS... or at least that is they way I think they are interpreting it.

Blackstone said:

Well SamuraiBlue, the answer is yes and no. It's true Communist China is an UNCLOS signatory and subject to both the responsibilities and benefits enshrined in the treaty. However, UNCLOS doesn't deal with sovereignty arguments, and current SCS claims/counter-claims existed before the creation of UNCLOS.

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Sorry but the sea was seen as international body in which no nation can make claim before UNCLOS so you argument is baseless to begin with.
When PRC became a signatory they agreed to the basis and definition of what makes land making your argument again meaningless.

Brumby said:

Samurai Blue is right. Part VIII of the LOS Convention defines an island as "a naturally formed area of land, surrounded by water, which is above water at high tide" (Article 121(1)). The Convention also makes clear that "artificial islands, installations, and structures do not possess the status of islands. Natural formation is easy to understand and what is happening with reclamation is obviously not natural. Unfortunately the facts on the ground are being changed as we speak. In practice, it will be difficult to determine pre and post status given the vast reclamation being undertaken. In a legal dispute, the strength of a case is either based on law or facts. I don't believe China has either on its side and hence it is being evasive on law while changing the facts

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I think you're right, Brumby. UNCLOS doesn't recognize artificial islands as real ones, so China shouldn't get 12 mile territorial waters around them. On the other hand, the 2,000 newly formed acres are indeed land features, so it's not clear what legal status they would eventually enjoy.

SamuraiBlue said:

Sorry but the sea was seen as international body in which no nation can make claim before UNCLOS so you argument is baseless to begin with.
When PRC became a signatory they agreed to the basis and definition of what makes land making your argument again meaningless.

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You make absolutely no sense at all. What exactly do you mean when you say "no nation can make claim before UNCLOS?" That's demonstrably FALSE and I could show you plenty of nations making the exact SCS claims that you say they can't. Baseless you say? Try it again, but with more feelings.

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