CHINA’s artificial islands in the South China Sea (SCS) and their upgrades have been serving as tools to Filipino politicians who’ve been mobilizing anti-Chinese sentiment against President Rodrigo Duterte who has been generally congenial to Beijing. Yet have you ever wondered what’s the actual position of the US on building artificial islands within a coastal state’s exclusive economic zone (EEZ)?
It’s necessary to ask this as the Americans have been positioning themselves as the disciplinarian in the SCS. It’s never been discussed in Philippine mainstream media nor parsed by Filipino experts on international relations and law. Now, it’s time to reveal the actual beliefs of the self-proclaimed freedom of the seas police. How it interprets and understands the scope of the rights of coastal states would affect how it would conduct the policing.
Through its freedom of navigation operations (FONOPs), the US has been challenging what it deems as excessive maritime claims of different nations. Started in 1979, FONOPs are conducted by US military forces. And every year, the US Department of Defense (DoD) publishes on their website their FONOPs, which they proudly characterize as “transparently [demonstrating]US non-acquiescence to excessive maritime claims.”
Sifting through the annual FONOP reports by the DoD, there are common claims the US finds unacceptable. I’ll only be considering reports from 2012 as that’s the pivotal moment in the escalation of tensions in the SCS.
The US finds the following claims of the rival coastal states of the SCS (China/Taiwan, Malaysia, Vietnam, and the Philippines) as excessive maritime claims, and hence it wouldn’t respect:
1. Prior permission for innocent passage of foreign military ships through the territorial sea (China/Taiwan, Vietnam)
2. Prior authorization required for nuclear-powered ships to enter the territorial sea (Malaysia)
3. Prior consent for military exercises or maneuvers in the EEZ (Malaysia)
4. Actions/statements that indicate a claim to territorial sea around features not so entitled (China)
5. Domestic law criminalizing survey activity by foreign entities in the EEZ (China)
6. Archipelagic waters, like the Sulu Sea, are internal waters (Philippines)
Conspicuously absent are the activities related to the building of artificial islands, installations, and structures in the EEZ of another country. Why?
Two important official documents hold the answer.
First is the official statement of the US during the 11th Session of the Third United Nations Conference on the Law of the Sea, which were a series of negotiations on the UN Convention on the Laws of the Sea (Unclos). This official statement can be found on the website of the UN’s Codification Division Publications: Diplomatic Conferences (legal.un.org/diplomaticconferences).
On March 8, 1983, among other issues, the US expounded on its understanding of the EEZ. In the EEZ, “a coastal State may assert sovereign rights over natural resources and related jurisdiction but may not claim or exercise sovereignty.” Then zeroing on artificial islands, installations, and structures, the US said:
“…the Convention recognizes that the coastal State has the exclusive right to control the construction, operation, use of all artificial islands, of those installations and structures having economic purposes and of those installations and structures that may interfere with the coastal State’s exercise of its resource rights in the zone. This right of control is limited to those categories.”
Two days after, President Ronald Reagan signed Proclamation 5030 on the “Exclusive Economic Zone of the United States of America.”
Among other things, the Proclamation stated that the US has “…jurisdiction with regard to the establishment and use of artificial islands, and installations and structures having economic purposes, and the protection and preservation of the marine environment.”
Thus, the US believes that coastal states only has the exclusive right to control the construction and operations of artificial islands, installation, and structures in its EEZ if their purpose is economic and related to the protection and preservation of the marine environment.
The US has already asserted this position against at least two countries.
As noted in Excessive Maritime Claims by Retired US Navy Captain J. Ashley Roach and Robert W. Smith, geographic expert on maritime boundary and jurisdictional issue in the US State Department from 1975-2006), the US protested the national laws of Trinidad and Tobago (1986) and Seychelles (2000) that gave them the authority to regulate the construction of any kind of artificial islands, structures, and installation in their EEZ.
In both instances, the US asserted that the authority of the coastal states only covers those built for economic purposes. Artificial islands, installations, and structures that are military in purpose are generally excluded. This complements the US position that coastal states have no right to ask prior consent from countries that would like to conduct military exercises or maneuvers in their EEZs.
I remember Duterte asking before why the US didn’t stop China from building and militarizing their artificial islands. We now know why. The US doesn’t believe that building artificial islands in another country’s EEZ is an excessive maritime claim if those islands are for military purposes. In this light, US FONOPs against China’s artificial islands aren’t challenges against the establishment of those islands but against the claim that they’re entitled to a territorial sea.