Is building the military outposts on small islands and reefs illegal?
Background: Links from Heritage
Although Beijing persists in reminding all other claimant countries that the South China Sea is Chinese sovereign territory, China has been very careful about not officially demarcating its specific maritime claims. Thus, other countries can only infer China's specific claims from Beijing's statements and actions, and China retains the option to change or redefine its maritime border according to the situation. The following analysis, therefore, is drawn from the large body of information published about the dispute but should not be considered the final word on China's position.
The impracticality of drawing coastal boundaries for countries with complex and deeply indented coastlines, like Norway, or for archipelagic states, such as the Philippines or Indonesia, was recognized in such UNCLOS (United Nations Convention on the Law of the Sea ) provisions as Article 7, Straight baselines , and Article 47, Archipelagic baselines . These articles permit countries to draw straight boundary lines across complex or closely spaced coastal features and islands as long as they do not interfere with customary freedom of navigation. Beijing, however, uses exaggerated definitions of these articles and its claimed islands and coastal features to draw its territorial borders more than a thousand miles from the Chinese mainland.3
The Standing Committee of the National People's Congress adopted the Law on the Territorial Waters and Their Contiguous Areas (Territorial Sea Law) on February 25, 1992. This law does not specify China's exact territorial claim, but it does assert sovereignty over the Paracel and Spratly Islands. Moreover, China has published a map showing the entire South China Sea from Hainan Island up to Indonesia's Natuna Island in an enclosed loop as territorial waters. In 1993, China verbally reassured Indonesia's foreign minister that the heavily populated and economically important Natuna Island was not claimed by China, but Beijing has since failed to formally confirm that informal statement.
Additionally, although most countries involved in the dispute use the same fuzzy or exaggerated definitions of UNCLOS provisions to justify their maritime borders, Beijing does them one better by also proffering a new definition of "territorial" waters. For most countries, "territorial waters" extend 12 nautical miles from the low-water line along a country's coast. When Beijing signed UNCLOS, however, it included a declaration that postulated definitions of territorial waters and rights of coastal states different from those written in UNCLOS.4 Among other things, China declared that:
In accordance with the provisions of the United Nations Convention on the Law of the Sea, The People's Republic of China shall enjoy sovereign rights and jurisdiction over an exclusive economic zone of 200 nautical miles and the continental shelf.
The People's Republic of China will effect, through consultations, the delimitation of boundary of maritime jurisdiction with the states with coasts opposite or adjacent to China respectively on the basis of international law and in accordance with the equitable principle.
The People's Republic of China reaffirms the sovereignty over all its archipelagoes and islands as listed in Article 2 of the Law of the People's Republic of China on the Territorial Sea and Contiguous Zone which was promulgated on 25 February 1992.
The People's Republic of China reaffirms that the provisions of the United Nations Convention on the Law of the Sea concerning innocent passage through the territorial sea shall not prejudice the right of a coastal state to request, in accordance with its laws and regulations, a foreign state to obtain advance approval from or give prior notification to the coastal state for the passage of its warships through the territorial sea of the coastal state.
By making this declaration, China is defining how it will interpret certain sections of UNCLOS and how they apply to China's existing territorial claims. China is saying that its sovereign maritime border is 200 nautical miles, not the traditional 12 miles. Beijing is also claiming that the islands and reefs of the South China Sea are Chinese territory and thus also have EEZs extending an additional 200 nautical miles from these points. Finally, it is redefining China's rights as a coastal state by insisting that warships making innocent passage must first obtain Chinese permission, again a violation of both UNCLOS and the traditional laws of the sea.
How Strong is China's Claim?
As stated earlier, China's claims are based largely on Beijing's unique interpretations of various articles of UNCLOS. But even a cursory examination of the articles in question indicates that China's position is not sustainable. For example, China's entire 10,000-mile coastline is not severely indented, as is Norway's coast, and its claim to a handful of uninhabited islands and reefs does not make China an archipelago.
To demonstrate the drastic impact of China's inflated claims, one needs only to examine what America's territorial boundaries would be like if Washington used the same interpretations of UNCLOS that China uses. In that scenario, the United States could claim a maritime border from the coast of California west past the Hawaiian Islands all the way to Guam; from Alaska and the Aleutian islands in the north; south to Howland, Baker, and Jarvis islands on the equator. Virtually the entire northern Pacific would be American "internal waters."
How can the US stop China without resorting to the UN?:
Through bi-lateral and multi-lateral direct talks and agreements
Before 1995, China participated in five Indonesia hosted unofficial conferences on the South China Sea designed to explore territorial disputes. China participated in each of these conferences and agreed to the unofficial statements, including the prohibition on the use of force.
The US could require that China resume such talks (or others sponsored by the Association of South East Asian Nations (ASEAN)) or threaten it with removal of its Most Favored Nation status in trade agreements. Such talks, if multi-lateral, would ensure that the UNCLOS arbitration mechanisms would be invoked giving them the force of international law.