Since 2014 China has been constructing features atop seven coral reefs in the disputed Spratly/Nansha Islands of the South China Sea by dredging sand and coral from existing coral reefs. At last count China’s new features total more than 2,000 acres.
This activity has produced much commentary. However, none of the commentary addresses all of the issues arising under international law from this activity. This Insight discusses all of those legal issues: (1) the zonal entitlements of each feature; (2) the zonal entitlements of each of the constructed features (artificial islands); (3) Chinese and U.S. claims as to use of the airspace and water within 12 nautical miles (nm) of the features; (4) the effect of China’s construction on the Philippine arbitration with China, including the construction of lighthouses on some of them; (5) China’s tu quoque defense that other claimants have done the same thing; (6) whether China’s reclamation and construction is consistent with the Declaration on the Conduct of Parties in the South China Sea (DOC) and the consistency of China’s position on DOC vis-à-vis the Philippines; (7) the parties’ obligation not to tamper with the evidence; and (8) the reclamations’ compliance with international environmental law. This Insight examines each of these issues in turn.
The Spratly/Nansha Features in Question
Public reports of China’s activities from satellite imagery show the seven reefs on which China has been filling and constructing are Hughes Reef, Mischief Reef, Subi Reef, Fiery Cross Reef, Gaven Reefs, Johnson South Reef, and Cuarteron Reef. Satellite imagery shows that the dredging has been from ten other reefs as well as these seven.
Given that each of the seven reefs are naturally formed areas of coral surrounded by water, the maritime zonal entitlements of each reef depends on whether it is (1) above water at all times, and can sustain human habitation or have an economic life of its own, in which case it is a “full-fledged island”; (2) above water at all times but cannot sustain human habitation or have an economic life of its own, known as a “rock”; (3) below high tide but above water at low tide, known as a “low-tide elevation” (or LTE); or (4) below water at all times.