A Study Of International Law On The Construction Work On The Maritime Features In The South China Sea

Recently,China has constructed ports,oil depots,aircraft runways and carried out land reclamation work on seven maritime features in the South China Sea which are Mischief Reef,Johnson Reef,Gaven Reef,Cuarteron Reef,Fiery Cross Reef,Hughes Reef and Subi Reef.Although the Chinese Ministry of Foreign Affairs has repeatedly stated that China's construction work on the Spratly Islands is exercising national sovereignty,these activities are still questioned by other countries.The controversy over the construction activities has received more attention as a result of the filing of arbitration by the Philippines.Of the 15 submissions filed by the Philippines,two are related to China's construction activities,namely,Submission No.11 which argues that China has violated its obligation under the United Nations Convention on the Law of the Sea(thereafter “the Convention”)to protect and preserve the marine environment at Scarborough Shoal,Second Thomas Shoal,Cuarteron Reef,Fiery Cross Reef,Gaven Reef,Johnson Reef,Hughes Reef and Subi Reef;and Submission No.12 which argues that China's construction activities on Mischief Reef violates the provisions of the Convention concerning artificial islands,installationsand structures and China's duties to protect and preserve the marine environment under the Convention.On 12 July 2016,the arbitral tribunal issued an award on merits which almost fully supported the two submissions.Although China did not accept or participate in and will not recognize or execute the arbitration,it still needs to respond to the fallacy of the arbitration award.There is no definition of “construction on maritime features” in the Convention.The most relevant concept in the Convention is the “artificial island”.Article 60,paragraph 8,of the Convention provides that “artificial islands,installations and structures do not possess the status of islands.” Paragraph 4 provides that “the coastal State may,where necessary,establish reasonable safety zones around such artificial islands,installations and structures.” Paragraph 5 provides that the breadth of the safety zones shall not exceed 500 meters.Therefore,if construction on maritime features is considered as building artificial islands,states will lose most of the claims of maritime benefits.Another relevant article is Article 121 of the Convention,which provides the “regime of islands”.The first paragraph provides that “an island is a naturally formed area of land,surrounded by water,which is above water at high tide.” Paragraph 2 states that “except as provided for in paragraph 3,the territorial sea,the contiguous zone,the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” Paragraph 3 states that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” There is controversy among scholars as to the relationship between “islands” and “rocks”.For example,is a maritime feature called an island if it is “a naturally formed area of land,surrounded by water,which is above water at high tide”? Is it true that all rocks have no exclusive economic zone or continental shelf? What does it mean that a maritime feature cannot sustain human habitation or economic life of their own? Does an island have to be fully naturally formed? Thus,the lacuna in the Convention makes interpretation of concepts and provisions of the Convention and summary of state practice crucial.Therefore,the purpose of this paper is to analyze the meaning of construction on maritime features and relevant concepts,analyze the legal character of China's construction on maritime features in the South China Sea,clarify the legitimacy of the construction work under international law and make a comparison between China's construction work and that of Japan on Okinotorishima.This paper is divided into four chapters:The first chapter of this paper explains the definition and classification of “construction on maritime features” and relevant concepts.It is noted that the Ministry of Foreign Affairs spokespersons always use the term “construction on maritime features” when addressing the concerns of China's construction work on the Spratly Islands,although occasionally they use “land reclamation”.In the South China Sea Arbitration(thereafter “the Arbitration”),the Philippines used “artificial island” or “island-building” or other similar terms.In the Arbitration Award,it uses “artificial island” and “construction activities”.Other terms are used among the media and scholars.Different concepts will incur different rights and obligations under international law.Therefore,it is necessary to clarify the difference between these concepts in order to analyze the legal nature and legitimacy of China's construction work in the South China Sea.In this paper,the term “construction on maritime features” is used to define the China's construction work in the South China Sea.In order to analyze the legal character of the construction work,the paper also divides the construction work into two categories: land reclamation and facilities-building.The second chapter of the paper analyzes the legal character of the construction work.For the legal character of the land reclamation,this paper argues that it is accretion under international law.Therefore,this chapter first introduces the legal theory of accretion,then analyzes the elements of establishing accretion,and then apply this theory to China's land reclamation work in the South China Sea,and finally draws the conclusion.It is noteworthy that,although accretion is allowed under international law,there is limit to this right which is that accretion cannot harm the rights of other states.Therefore,this chapter also analyzes the legal consequences of China's land reclamation and concludes that it does not affect other countries since it does not impact the free navigation and flying over rights of other countries,nor does it damage the marine environment of the South China Sea.This chapter then analyzes the legal nature of the facilities-building on these maritime features.Since China has undisputed sovereignty over the Spratly Islands and the accretion is legal,it is therefore within the scope of sovereignty to construct the facilities on the accreted land.The third chapter analyzes the legitimacy of the construction work from three aspects.First,the construction work is in line with the rules of international law.The Convention obliges the State Parties to protect and preserve the marine environment.China has conducted in-depth study and rigorous demonstration before the construction.As the construction work almost reached the end,China's State Oceanic Administration has published two environmental reports on its official website to prove that China's construction work has not had a devastating impact on the marine environment.In addition,the construction work is in line with the Declaration on the Conduct of Parties in the South China Sea.China has always been committed to resolving disputes by negotiating with the directly concerned parties,while the Philippines has unilaterally initiated the arbitration and increased the complexity of the controversy.Second,the construction work is in line with the principles of international law.On one hand,China has complied with the principle of good faith,which means that states shall fulfil the obligations in good faith instead of abusing the rights and freedom.In view of China's construction work,the United States and the Philippines have accused China of relying on the strength of great powers to build the islands with the fastest speed and at the largest scale and the purpose behind this is to expand its maritime benefits in the South China Sea.However,these are unreasonable accusations because the main purpose of the construction work is to improve the living standard of the people living and working on the Spratly Islands and to provide maritime services for the international community.On the other hand,the construction work is in compliance with the principle of due regard.China not only did not affect the other states' rights of free flight over and navigation in the South China Sea,but also has informed other states through official means of the content and process of the construction work.Finally,through interpretation of the provision in the Convention,China has also fulfilled its obligations.Interpretation by context and purpose are two important means of interpretation in the Vienna Convention on the Law of Treaties.Using these two interpretation methods,the relationship between the island and rock contained in the Article 121 of the Convention can be demonstrated and the rule that status of maritime features cannot be changed by the construction work can be implied.China has stated that it did not intend to expand its maritime benefits in the South China Sea through construction work on the Spratly Islands,therefore it did not breach the obligations of the Convention.The fourth chapter of the paper introduces Japan's construction work on Okinotorishima and analyzes the essential difference between Japan's construction work and that of China.This chapter first introduces the geography of Okinotorishima.After typhoon and sea erosion,Okinotorishima now only has two reefs as large as a queen-size bed revealing surface at high tide.But after years of construction,Japan claims exclusive economic zone and continental shelf based on Okinotorishima.The intention behind this is obvious,which is to claim a wider maritime zone,have more marine resources and carry out its military strategic deployment on top of it.The most controversial issue at the moment is whether it is now a reef or an island.Therefore,the chapter analyzes Article 121 of the Convention and concludes that Okinotorishima cannot enjoy exclusive economic zone and continental shelf.Finally,this chapter compares the purpose and outcome of the construction work of China and Japan and concludes that China has not changed the legal status of the maritime features and its scope of maritime entitlements in the South China Sea.