Spratlys reclamation won't boost China's claims

MANILA - China's reclamation projects in the disputed waters of the West Philippine Sea won't strengthen its claims, a legal analyst said.

Robert Beckman, director of the Centre for International Law, said in a S. Rajaratnam School of International Studies (RSIS) commentary on Wednesday that China is not the only one claiming sovereignty over the islands and maritime features in the Spratlys.

"Vietnam, the Philippines, and Taiwan also claim sovereignty over the islands/features occupied by China. Once there is a dispute over sovereignty, the State that occupies and controls the islands/features cannot strengthen its sovereignty claim by undertaking reclamation or building installations and structures," he explained.

Beckman, an associate professor in the Faculty of Law of the National University of Singapore (NUS) added that artificially raised submerged reefs should not be given maritime zones of their own.

He said under the UN Convention on the Law of the Sea (UNCLOS), an island is defined as a "naturally formed" area of land surrounded by and above water at high tide.

"If a feature is above water at high tide because of reclamation works, it is an artificial island," he added. "Under UNCLOS, an artificial island is not entitled to any maritime zones of its own, not even a 12 nm territorial sea. Therefore, the reclamation works on features that are submerged at high tide will not change their legal status."

Beckman also said that based on UNCLOS' definition of an island, China cannot convert a rock into an island that would be entitled to an exclusive economic zone and a continental shelf of its own.

He also raised concerns on the impact of China's activities in the Spratlys on UNCLOS and the environment.

"One issue is whether China’s large-scale reclamation works are consistent with its obligation under UNCLOS to protect and preserve the marine environment. If a State is planning activities in an area under its jurisdiction and control that may have significant harmful effects on the marine environment of other States, it has a ‘duty to cooperate’ with those States. It must consult the States that might be affected in advance and in good faith," Beckman said.

"In this case, the Philippines is a potentially affected State because three of the features on which China is undertaking reclamation works are either just inside or just outside its 200 nm EEZ," he added.

"China is under an obligation under international law to exercise restraint and not take unilateral actions that would permanently change the status quo regarding the features in question. This is especially so in this case because the status of the very features on which China is doing major reclamation works are the subject of an ongoing case before an international arbitral tribunal," Beckman said.

DIPLOMATIC PROTESTS

The Philippines earlier lodged diplomatic protests against China's reef reclamation projects.

China’s ongoing land reclamation in five reefs -- the Johnson South (Mabini) Reef, Cuarteron (Calderon) Reef, Hughes (Kennan) Reef, Gaven (Burgos) Reef and Eldad (Malvar) Reef in the West Philippine Sea -- is widely seen by the Philippine government as preparation for more land reclamation operations.

The Philippines has submitted a 4,000-page memorial detailing its arguments and evidence against China’s nine-dash line and other aspects of Beijing’s expansive and excessive claims in the West Philippine Sea to an arbitral tribunal at The Hague.

The arbitration case was filed based on the UNCLOS to clarify the country’s maritime entitlements in the West Philippine Sea.

Under the UNCLOS, maritime features like rocks and reefs are entitled to 12 nautical miles of territorial sea without an exclusive economic zone (EEZ).