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A Study of the South China Sea – India as a stakeholder


Introduction


Artificial islands have a distinct meaning in international law though it has not been officially defined by any International statute. The Encyclopedia of Public International Law defines an artificial island as a “temporary or permanent fixed platform made by man, surrounded by water and above water at high tide”.

The Spratly Islands are an archipelago in the South China Sea, located off the coasts of the Philippines, Malaysia, and southern Vietnam. Article 121(3) of United Nations Convention on Law of the Seas (UNCLOS) provides that “rocks which cannot sustain human habitation or economic life shall have no Exclusive Economic Zone (EEZ) or continental shelf”. Many of the features in the Spratly Islands fall in this category of rocks, including those where China has carried out land reclamation works turning them into 'islands'.


China’s assertions of indisputable sovereign rights in these circumstances represent a form of legal alchemy in which China has converted submerged features and rocks into useable surfaces and claims those to have the status of naturally formed islands which directly subverts the provisions given in UNCLOS pertaining to the rights, jurisdiction and duties of the coastal State in the exclusive economic zone. Despite not being a coastal State, China has carried out disruptive activities and claims to have sovereign rights to explore, exploit, conserve and manage the living and non-living marine resources in the vicinity of Spratly Islands which is an infringement of rights of other coastal states.


Article 60 of UNCLOS gives the coastal state “the exclusive right to construct and authorize and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures” in their EEZ. It has been further clarified that these do not possess the status of islands. Thus, these artificial creations do not have any territorial sea of their own and have no effect on the EEZ or continental shelf.


Hence, if the construction of these artificial islands had taken place within China's EEZ or continental shelf, it would have enjoyed “exclusive jurisdiction over them, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations". However, these artificial islands and structures would still not have the right of territorial waters, EEZ, continental shelf and a straight baseline of their own.

In the case of South China Sea Arbitration, Philippines requested that the tribunal declare that these activities both “violate the provisions of the Convention concerning artificial islands, installations and structures” and “constitute unlawful acts of attempted appropriation in violation of the Convention”.


Construction of installations and Structures.

China’s construction of installations and structures in the exclusive economic zones of various nations is violative of International law. China’s claim that their extensive constructions on these structures enable them to have an EEZ and territorial sea is invalidated by the award of the tribunal in the case of South China Sea arbitration. The tribunal in determining the status of such features and their entitlements has further stated that, "As a matter of law, human modification cannot change the seabed into a low tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it" China has violated the spirit of the guidelines given in Article 121(3) of UNCLOS by use of deliberate artificial constructions for determination of sovereignty over the said area to extend their maritime zones.'


Installations and structures are not islands and are not entitled to any maritime zones of their own. Within the territorial sea, they are subject to sovereignty of the coastal state. In the EEZ and on the continental shelf, a coastal state has the exclusive right to construct and to authorize and regulate the construction, operation, and use of (1) artificial islands, (2) installations and structures for economic purposes, and (3) installations and structures that may interfere with the exercise of the coastal state's rights in the zone.


Installations and structures are also not defined, but they refer to assets like buildings, lighthouses, research stations, and oil platforms. These are often built on low-tide elevations or submerged features. Low-tide elevations are naturally formed areas of land surrounded by and above water at low tide, but submerged at high tide. Low-tide elevations are not islands and are not entitled to any maritime zones of their own. In its 2012 judgment in the case of Nicaragua v. Columbia, the ICJ clarified its position by expressly stating that "low-tide elevations cannot be appropriated."


Once rival States collectively declare territorial and maritime competence in the South China Sea, express enforceable borders of national authority, and then continue to award concessions or licensing projects to foreign corporations within the areas asserted, the conditions for dispute over boundaries to assign opportunities for growth of resource zones become ripe. Global anxieties are often exacerbated, and international conflicts intensified to the point that certain regimes can possibly approve of military options.


Militarization of Artificial Islands and repercussions on the Environment

China’s construction activities have affected regional peace and stability. The Spratly Islands are ecologically fragile and the waters surrounding it are rich in biological diversity with abundant fish stock and a large variety of coral reefs. Its occupation and subsequent militarization of these maritime features is a violation of international territorial laws and of the UNCLOS.


Militarization presents a threat to innocent passage and international law is violated if the territorial claims infringe upon the territorial rights of another State. The Additional Protocol I to the 1949 Geneva Convention similarly prohibits methods of warfare intended or expected to cause ‘widespread, long term and severe damage to the natural environment’. The Protocol requires parties to take care to protect the natural environment, and places limits on the circumstances in which ‘works or installations containing dangerous forces’, can be made the object of attack.


The International Law Commission’s Code of Offences against Peace and Security of Mankind and the 1998 Statute of the International Criminal Court also treat certain acts of serious and intentional harm to the environment as war crimes and allow for individual responsibility. Principle 24 of the 1992 Rio Declaration asserts that ‘States shall…respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary’. UN General Assembly Resolution 47/37 (1992) states that ‘destruction of the environment is not justified by military necessity and carried out wantonly, is clearly contrary to existing international law’.


The International Tort Law lays great emphasis on environmental damage as a part of modern civil liability conventions and protocols. Imposition of international liability on Iraq for environmental damage in Kuwait as per Resolution 687 of UN Security Council is also a case in point. Heightened concerns in view of increased pollution and global warming make taking cognizance of the environmentally disruptive activities of China more relevant and pertinent.


China has on numerous occasions’ disrupted peace in the region by initiating avoidable conflicts by restricting free and fair usage of marine resources by other nations. China’s aggressive pursuit of its territorial claim over the South China Sea has increased in tandem with the expansion of its navy and maritime services. Hence, China’s construction activities have affected regional peace and stability. The Spratly Islands are ecologically fragile and the waters surrounding it are rich in biological diversity with abundant fish stock and a large variety of coral reefs. Therefore, its occupation and subsequent militarization of these maritime features is a flagrant violation of international territorial laws and of the UNCLOS.


India and the South China Sea

Whilst India is not geographically located in the South China Sea nor does it share a coastline or island territory with the same, its regular naval developments in the region and covert strategic partnerships with the countries that are located there, make the South China Sea and the disputes arising therein an area of interest and concern for India. Through its geopolitical and geo-economic interests in the waters and with the littoral states, India’s role as an extra-regional power is increasing. The South China Sea is becoming a factor in India’s own strategic calculations and strategic debates, and India is becoming a factor in the strategic calculations of South China Sea states.


The most important narrative pertaining to the South China Sea and Indian interests therein is emphasized by the skyrocketing in the number of the Indian trade relations and economic arrangements. Some of the most important players in such relations and arrangements include ASEAN constituents and East Asian nations.


Almost 55% of Indian trade is transported through the Strait of Malacca choke point to and from the South China Sea. The horizons of Indian security now include the necessity of the Strait of Malacca as a well-established feature. The India Maritime Military Strategy in 2007 emphasized that India’s “primary” area of strategic interest specifically included “the choke points leading to and from the Indian Ocean— principally the Strait of Malacca.” Any disruption of the same through the Bay of Bengal or the South China Sea will not be in India’s interest.


The increasingly visible interest on the part of India in the South China Sea region is premised on the following factors:-


(1) The increased trade with East Asia and the sense for recognition on the Sea Lanes of Communication (SLOC) from the Indian side beyond its geographical expanse.

(2) Reduction in the reliance on the major powers for India’s avowed maritime needs.

(3) India’s fear of growing China’s assertiveness in the Indian Ocean region.

(4) The importance of forward maritime presence and naval partnership is seen critical to deter India’s adversaries in the region.

(5) Securing the trade-transit route which passes through the South China Sea all vital to India’s growing trade, energy and security interests.


Therefore, the South China Sea has been a bone of contention for decades for all the stakeholder nations involved. The increasing instances and reports of environmental law violations and threat to the military integrity of surrounding nations at the behest of Chinese powers have only increased their hegemonic powers. India’s role in the region, while still in the backdrop is becoming increasingly important.


Author - Srishti Jha, 2nd year student, Army Institute of Law.


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