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Gregory Poling: China's legal guessing game in the Spratlys -- reef, rock or island?

In June, the Philippine government released photographic evidence documenting China's efforts to expand five tiny spits of land it occupies in the disputed Spratly Islands: Johnson, Cuarteron, Hughes, Gaven and Eldad reefs. Subsequent reports have suggested a sixth, Fiery Cross Reef, may have also been expanded. IHS Jane's, the data and consulting group, offered further insight, releasing tracking data in June showing the movements of a large Chinese dredging vessel between several of these reefs between late 2013 and mid-2014 and analyzing satellite imagery confirming expansion of at least three of them.

     According to Manila and Jane's, China has dredged up large amounts of sand from the seabed and deposited it on these reefs and low-lying rocks in order to massively expand their size and allow for construction of more permanent facilities. A recent BBC investigation provided firsthand documentation of the striking geographical changes on some of these reefs over a period of just a few months.

     Unsurprisingly, discussion about these developments in the Philippines and abroad has been focused on their potential military implications. Many regional governments are fretting about whether China is preparing to construct permanent, large-scale bases in the Spratlys -- and if so, whether this heralds even greater forward deployment of Chinese paramilitary forces, particularly its Coast Guard vessels and the aggressive fishing ships that sail with them. Images from a Chinese construction company revealing a proposal to further expand facilities at Johnson South Reef suggested this was the case, and it has since become apparent that Beijing is indeed constructing an airstrip on the enhanced reef.

     Nonetheless, the reefs in question remain extremely small, isolated and nearly impossible to defend. Their potential military uses remain few and, in any case, are a more distant concern than their legal ramifications. Aside from China's rationale for this provocative buildup, its choice of reefs for expansion indicates that at least for some in Beijing, it is about stymying Manila's ongoing case over China's maritime claims at the Permanent Court of Arbitration.

Defining an island     

While all 3,000-plus pages of arguments and evidence submitted by the Philippines against China's claims in the South China Sea have not been made public, the initial Notification and Statement of Claim that Manila filed in January 2013 provides the broad outlines of the case. It charges that China's "nine-dash line" -- which ambiguously defines Beijing's claims in the South China Sea -- is invalid as a claim to maritime space because it is not founded on the United Nations Convention on the Law of the Sea (UNCLOS). It also claims China's seizure in 2012 of Scarborough Shoal, a handful of rock outcrops off the Philippine coast north of the Spratlys, as well as other incidents is a violation of UNCLOS. But the most detailed and controversial portion of the Philippine case focuses on the status of a number of geographical features occupied by China.

     The use of the term "feature," as opposed to island, rock, reef or some other geological category, matters here because those latter terms have very specific legal definitions according to UNCLOS. Repeated claims by China's Foreign Ministry would suggest that Beijing views most, if not all, of the features it occupies in the South China Sea as legal islands -- which would be entitled to the same maritime zones as a mainland coastline, including an exclusive economic zone and continental shelf of up to 200 nautical miles (roughly 370km) or even farther in the latter's case -- where it would have exclusive rights to natural resources.

     According to UNCLOS, there are two requirements for a feature to qualify as an "island":

     1. The feature in question must be above water at high tide.
     2. It must be capable of supporting human habitation or independent economic life.

     Those features that fulfill the first but not the second are legally "rocks" entitled to only a 12-nautical-mile -- about 22km -- territorial sea around them. Those that fail on both counts are at best low-tide elevations that are underwater at high tide and therefore not eligible for an independent claim of sovereignty. They are considered part of the seabed and thus belong to whichever state is entitled to the continental shelf on which they sit, according to legal precedent.

     The Philippines is arguing in court that four of the features China currently occupies -- Mischief, Hughes, Gaven and Subi reefs -- are below water at high tide and therefore cannot be claimed as land by China. Four more features, according to Manila, are merely rocks, not islands. These include Scarborough Shoal, and Johnson, Cuarteron and Fiery Cross reefs. Those names should sound familiar from the beginning of this article as they include all but one of the features that Beijing is expanding.

     China has insisted it will not engage in the Philippine arbitration case. But it has also gone to significant lengths to publicly outline its arguments against the merits and jurisdiction of the case, ensuring that the five judges hearing the case will be forced to confront them. Indeed, Beijing has little interest in subjecting itself to the international condemnation and image hit that would come from ignoring a ruling by the court -- one that China, by signing UNCLOS, agreed it would be legally bound to obey. Therefore, its best option is to have the case, at least in large part, dismissed.

China's trump card?      

China knows it can do little to avoid the court ordering a clarification of the nine-dash line, and such a ruling would not necessarily force Beijing to limit its claims in the South China Sea, as long as it could find another way to justify them. That makes the second half of the case, regarding the status of its tiny features, the most potentially damaging to China's claims. Being unable to generate exclusive economic zones or continental shelves from those features would most likely negate any hope Chinese legal experts might have of redefining the nine-dash line without abandoning most of its claims to waters and seabed areas.

     Most international legal experts would agree that a state cannot transform a submerged feature or low-tide elevation into an island by dumping sand on top of it until it finally rises above the waves. Most would also agree that a rock is unlikely to be made legally habitable, and therefore become an island, by expansion, although that point is less certain. There are no precedents for the scope of China's land-reclamation tactics. But in either case, China does not need to convince a court that it has created legal islands. It just needs to make it impossible to determine the original geography of the features in question.

     And this is where artificial island building could prove useful for Beijing and disastrous for other claimants. Surveys of the Spratly Islands by claimants and others have been very few and very poor. Indeed, there seems to be no comprehensive survey currently available that would meet the requirements of a court. That raises the possibility that the judges hearing the Philippines' case, and those in any future cases brought by other claimants, could rule that they lack the ability to determine the original status of features as islands, rocks or nothing at all.

     In that case, the Southeast Asian claimants could lose their only real advantage against Beijing -- recourse to the law. That would mean Beijing's reclamation work will have paid off handsomely by negating any role the courts could have in managing and limiting the scope of the South China Sea disputes, keeping them firmly in the "might makes right" arena that China clearly prefers.

Gregory Poling is a fellow with the Sumitro Chair for Southeast Asia Studies at the Center for Strategic and International Studies in Washington, D.C.

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