Should the US patrol around China’s artificial islands? | East Asia Forum
The US defence establishment’s provocative plan to assert freedom of navigation by patrolling near China’s artificial islands in the South China Sea appears to have stalled. But if the United States abandons the policy it will forego an important opportunity to help stabilise Asia’s contested waters.
In May, Secretary of Defense Ashton Carter reportedly asked the US military to develop plans to send planes and ships within 12 nautical miles (nm) of China’s new installations — the radius of territorial sea and airspace granted to legitimate territorial features under international law.
The intended effect would be to demonstrate that land reclamation does not create new areas of sovereign territorial seas, cautioning Beijing against any future attempt to institute exclusive military control in these areas. This month, US defence officials reiterated their desire to carry out the plan. But so far no patrols have been conducted.
Some analysts have expressed concern that such freedom of navigation (FoN) operations would spur the militarisation of the area or, worse, provoke Sino–US confrontation. Similar misgivings in Washington are likely part of the explanation for the lack of implementation so far.
If conducted on the basis of careful research and clear communication, such a policy could show that the United States is willing to act in a measured way to uphold universally accepted international rules in the region. In the process, it would demonstrate limits to China’s ability to create new ‘facts on the water’.
Ensuring FoN operations in the Spratlys are constructive rather than destabilising depends first and foremost on making them scrupulously legal.
The key would be to make certain that US ships and aircraft only pass within 12 nm of those artificial islands built on features that were naturally underwater at high tide. One example is Mischief Reef, where China has created more than five square kilometres of new land. No matter how much sand is dumped on these ‘islands’, the waters around them have no legal territorial sea status.
On this point, international law is, thankfully, unambiguous. Article 60 of the UN Convention on the Law of the Sea (UNCLOS) explicitly states that artificial islands ‘have no territorial sea of their own’. Patrols within 12 nm of such submerged features would be on safe legal grounds and could not be construed as a violation of any country’s territorial waters.
At the same time, UNCLOS is equally clear that even small ‘rocks’ may be entitled to 12 nm of sovereign territorial sea — provided they naturally protruded above the waterline at high tide. Fiery Cross Reef, where China has built a 3000 metre runway, is one such feature. American FoN patrols should not enter within 12 nm of this or any other disputed feature without producing strong evidence that it was, in fact, entirely submerged in its natural state.