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Beijing should be denied access to islands it has built in the disputed South China Sea, according to Donald Trump’s nominee for secretary of state, Rex Tillerson. He did not elaborate on how exactly Beijing might be blocked from the artificial islands (RT).

Questions:

  1. By international laws, is building and owning the artificial islands illegal?
  2. considering the fact that China has veto power in UN, how US can ban china from the islands?
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    This is a component of a larger problem; the islands that China is reclaiming are in areas of significant dispute over territorial water authority for every major country in the region. Related: politics.stackexchange.com/a/14023/6738 – Drunk Cynic Jan 13 '17 at 16:47
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    Not really an answer, but, as a sovereign nation, the United States only abides by international law because it chooses to (international law is effectively a treaty). As President, Donald Trump is responsible for international affairs and can choose to withdraw from any/all US treaties. – barrycarter Jan 13 '17 at 20:28
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The Security Council Does Not Determine Sovereignty

Sovereignty is the term for one state being able to govern a piece of territory. The United Nations has no process in place for determining who has sovereignty over some territory.

The General Assembly may adopt a resolution supporting a state's ability to govern a territory (which can be vetoed), but it is not entirely binding. Similarly, the International Court of Justice can be asked to make a decision regarding the sovereignty over some territory, but that requires both parties to submit to the ruling.

In this sense, it really doesn't matter that China is on the Security Council. Additionally, it is counter-balanced by the presence of the United States, who could veto any similar claim by China.

Sovereignty

So how is sovereignty determined? The most important concept is reciprocity. A state is sovereign over some territory when other states recognize its sovereignty. For example, if other states seek permission from the United States enter the border around the island, or land there, then they are recognizing the United States' sovereignty over that land (and not China's).

Additionally, there are some other things to look for when determining who is sovereign in some territory. These are less important than reciprocity.

  • The ability to create and enforce laws in that area.
  • Recognition of sovereignty from the people living in that territory (for example, by paying taxes, voting in elections, serving on juries, etc.)
  • A treaty wherein two states agree who has sovereignty
  • A history of governing the territory, or a historic claim on that territory

More Information

If you would like a short primer on sovereignty, this document by National Unity Government seems pretty good. I'm not familiar with this organization, but the content matches what I covered in my international law coursework (in an American university in the early 2010's). You could ignore the section on Aboriginal rights.

If you are interested in a very long article about sovereignty, try the Stanford Encyclopedia of Philosophy article.

  • "to do business with the people on these islands": the islands in question are uninhabited. – phoog Jan 13 '17 at 19:13
  • It's just an example of the kind of activity that signifies sovereignty. I can add a second example, if that helps. – indigochild Jan 13 '17 at 19:22
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  1. By international laws, is building and owning the artificial islands illegal?

Altough "international laws" are a fuzzy concept, an international tribual of the International Court of Justice in The Hague did rule that China's claims have no legal basis. https://www.nytimes.com/2016/07/13/world/asia/south-china-sea-hague-ruling-philippines.html That's as close to a clear answer in "international" law as one can get I suppose.

  1. Considering the fact that China has veto power in UN, how US can ban china from the islands?

China has veto in the UN Security Council, not the entire UN. However even if the Security Council were to rule that China could not build on the islands, China would likely ignore the Security Council ruling just as it is ignoring (other than to condemn) the decision of the International Court of Justice. American cannot "ban" China from the islands through international law.

Other ways to keep China away from the islands would be necessary. Typical tools in this kind of situation are military force and economic sanctions or other economic pressure, However China has a strong enough military at this point that other countries, including America, are unlikely to want to force the issue. Similarly the Chinese economy is large enough that attempts to apply economic pressure are unlikely to succeed.

Unless American leadership is very creative it is unlikely that America will be able to dislodge China from the islands.

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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:

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  • It might be worth commenting on the relative size of Chinese and American naval presence in the area. Specially since our new guy seems to do nothing by half measures. – user9389 Jan 13 '17 at 17:11
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    Generally, a reference should be summarized in the answer (see the answer to this on Meta). A large block-quote like that distracts from the answer by providing a lot of unnecessary information. It's hard to know exactly how much to quote is right, but if the vast majority of your answer is quotes - it's probably too much. – indigochild Jan 13 '17 at 19:46

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