US provoca­tive act in South China Sea

China Daily (Canada) - - LIFE -

The US has started a new se­ries of games with China by send­ing its guided mis­sile de­stroyer USS Lassen within 12 nau­ti­cal miles of China’s isles in the South China Sea. We need to de­fine the le­gal sta­tus of built-up is­lands and reefs ac­cord­ing to the 1982 UN Con­ven­tion on the Law of Sea. It should be made clear that the land claim projects are car­ried out in China’s land and islets, rather than as the US me­dia claim be­ing ar­ti­fi­cial is­lands that have no ter­ri­to­rial sea of their own.

Ac­cord­ing to Ar­ti­cle 121 of UN­C­LOS, 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.

Ar­ti­cle 6 of UN­C­LOS says: “In the case of is­lands sit­u­ated on atolls or of is­lands hav­ing fring­ing reefs, the base­line for mea­sur­ing the breadth of the ter­ri­to­rial sea is the seaward low-wa­ter line of the reef...”

Since peo­ple can’t habi­tat reefs, ex­clu­sive eco­nomic zones can’t be drawn from them.

How­ever, ac­cord­ing to Ar­ti­cle 13: “A low-tide el­e­va­tion is a nat­u­rally formed area of land which is sur­rounded by and above wa­ter at low tide but sub­merged at high tide. Where a low-tide el­e­va­tion is sit­u­ated wholly or partly at a dis­tance not ex­ceed­ing the breadth of the ter­ri­to­rial sea from the main­land or an is­land, the low-wa­ter line on that el­e­va­tion may be used as the base­line for mea­sur­ing the breadth of the ter­ri­to­rial sea.”

Some of China’s land recla­ma­tion projects in South China Sea are car­ried out on reefs and low-tide el­e­va­tions. But af­ter the com­ple­tion of the land recla­ma­tion projects it is im­pos­si­ble to prove that the islets used to be low-tide el­e­va­tions that can’t claim ter­ri­to­rial sea.

And ac­cord­ing to Ar­ti­cle 17: “Sub­ject to this Con­ven­tion, ships of all States, whether coastal or land-locked, en­joy the right of in­no­cent pas­sage through the ter­ri­to­rial sea.”

There­fore, ac­cord­ing to UN­C­LOS, the US can en­ter the ad­ja­cent wa­ters of such is­lands and reefs in the name “in­no­cent pas­sage”, even the wa­ters are China’s ter­ri­to­rial sea. But the US congress hasn’t rat­i­fied UN­C­LOS yet, which makes things dif­fi­cult. What’s more, there is a heated de­bate over whether war­ships en­joy the “in­no­cent pas­sage” within other coun­tries’ ter­ri­to­rial seas. And it should be noted that “in­no­cent pas­sage” goes both ways and there­fore the Chi­nese navy are en­ti­tled to the same right to en­ter the wa­ters ad­ja­cent to US is­lands and reefs ac­cord­ing to the US’ logic.

As for the reefs stand­ing above high tide be­fore con­struc­tion, China owns the right to the ter­ri­to­rial seas. If the US wants in­no­cent pas­sage through th­ese wa­ters, it should ap­ply for China’s per­mis­sion and be in ac­cor­dance with China’s Law on the Ter­ri­to­rial Sea and the Con­tigu­ous Zone.

The US’ bold mil­i­tary provo­ca­tion will not only dam­age Sino-US re­la­tions, but also could re­sult in the risk of con­flicts in the wa­ters if it per­sists.

It is ob­vi­ous that US took in­no­cent pas­sage as the ex­cuse for its war­ship USS Lassen en­ter­ing into or get­ting close to China’s ter­ri­to­rial seas. This is sim­i­lar to the US’ sell­ing weapons to Tai­wan even af­ter China and US es­tab­lished their diplo­matic re­la­tion­ship. There is no in­ter­na­tional law mak­ing it le­gal to sell weapons to parts of a sov­er­eign coun­try.

The US’ true rea­son for sail­ing its war­ship was be­cause it fears China’s grow­ing ca­pa­bil­ity to project its power af­ter the com­ple­tion of its land recla­ma­tion projects in the South China Sea.

Since China can en­hance man­age­ment of larger area of wa­ters, this may fur­ther change the geopo­lit­i­cal pat­tern, and the US wor­ries that the change will un­der­mine its dom­i­nant po­si­tion in Asia-Pa­cific.

Build­ing up is­lands or reefs, how­ever, is al­lowed un­der in­ter­na­tional law. The US can’t slow China’s pace of build­ing up its is­lands and reefs by sim­ply flex­ing its mil­i­tary mus­cle in the South China Sea.

The US should face up to the re­al­ity that it’s no longer a unipo­lar world, and seek to en­gage more with rather than con­tain China.

The author is a pro­fes­sor at and as­so­ciate dean of the In­sti­tute of In­ter­na­tional Stud­ies in Fu­dan Univer­sity, Shang­hai.

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