Sunday, August 07, 2016

Beijing's artificial islands bring South China Sea crisis to the boil

A tribunal of the Permanent Court of Arbitration in The Hague is ready to give its verdict on a complaint by the Philippines, which has challenged China's territorial rights in the South China Sea.
The verdict is set to address the simmering crisis in the South China Sea which will come to the boil later this month.
China has rightfully asserted that the tribunal cannot adjudicate maritime boundaries; these can only be determined through bilateral negotiations between the parties in question.

However, under the UN Convention on the Laws of the Seas (UNCLOS), the tribunal can indeed declare whether a particular feature is an 'island' - and thus entitled to a 200 nautical mile exclusive economic zone (EEZ) - a 'rock' which only permits a 12 nautical mile territorial sea, or a feature visible only in low tide, which does not provide for any maritime zone.
The issue has raised eyebrows because China has constructed artificial islands over some of these rocks, and low-elevation features, and is claiming an exclusive economic zone around them.
Under UNCLOS, artificial islands and structures like oil rigs do not confer territoriality of any kind. 
China says it is not participating in the arbitration, even though the UNCLOS does not confer it any right to exclude itself from the process.

Beijing has not been clear whether it is claiming the islands of the South China Sea, over which it says it has historical rights

Indeed, UNCLOS says that even if a party refuses to participate, the tribunal can give its verdict -which is final and without appeal.
In the build-up to the verdict, China has strongly denounced the process and made it clear that it will not abide by the ruling.
It has questioned the bias of the tribunal, and termed it as a kangaroo court.
At the same time, it has built up a military presence in some of the artificial islands. 
The US has made it clear that it expects Beijing to abide by the verdict - and if it doesn’t, the US and its allies will ignore Chinese claims, sail through the waters, and fly over them.

The Chinese position on the South China Sea is complicated and there is a touch of mendacity around it.
Beijing has not been clear whether it is claiming the islands of the South China Sea, over which it says it has historical rights, or the boundary it has laid out in maps through what is called the Nine Dash Line.

UNCLOS has clear sections on historical rights, and the problem for the Chinese is that since only two of the islands were historically habitable, they cannot indisputably prove this includes the entire Paracel and Spratly island groups.
The Nine Dash line is even more problematic. Firstly, no country can assert a maritime boundary; it must be negotiated with the specific neighbour.
For example, India and Pakistan have failed to negotiate their maritime boundary because of their Sir Creek dispute.
The Nine Dash line follows no maritime principle, insofar as many of the areas it claims are beyond 200 nautical miles from the nearest rock or feature claimed by China. In other words, they are simply lines on a map that China insists the world has to accept.

Now, not only is China readying to reject the arbitrary award, it has hinted that it will establish an Air Defence Identification Zone over the area.
Its not clear whether it plans to set up an ADIZ over the islands it has built, or over the entire Nine Dash line area.

An ADIZ has no basis on international law. Yet many states, especially the US, have established them in the name of national security.
Civilian aircraft flying through these zones have to notify their flight plan in advance to the country which claims a particular ADIZ.
There is no problem if such a zone is over undisputed territory, but in the case of China, it has previously established one covering the Senkaku Islands it disputes with Japan and there are places where its ADIZ overlaps with that of South Korea.

Many airlines and countries have accepted the Chinese rules, but many others ignore them. But they are a ready pretext to stage a crisis. 
In the past, China has denied plans to set up an ADIZ in the South China Sea. But China is well known for shifting goal-posts at will. After all, it had given a public declaration in the past that it would cease island building in the South China Sea, but as of now it continues its activities. 
India needs to keep a careful watch on the situation, especially since our friends the US, Vietnam, and Japan want us to play a larger role in the region.
Riling China is fair-game considering Beijing’s role in South Asia. But we need to think our game through.
Mail Today June 5, 2016

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