It’s the slow motion fuse that poses the greatest threat both to freedom of navigation and international law: China’s conversion of reefs and rocks in the South China Sea into airfields and military bases. By claiming its new bases are islands, China not only claims a 12-nautical-mile territorial sea around each one, but also a 200-nautical-mile exclusive economic zone. Multiply that by at least seven, and China suddenly claims the bulk of the South China Sea as its own and not by mere coincidence, oil reserves that potentially rival those of the Persian Gulf.
Under international law, there are three categories for features that break water in an ocean or sea: islands remain above water, even at high tide, and are able to sustain human habitation and economic life; rocks, in contrast, remain above water at high tide but cannot sustain human life; the third category, low-tide elevations, are submerged at high tide. While islands can claim the territorial sea and exclusive economic zone, rocks only receive territorial sea recognition, and low-tide elevations get neither by themselves.
Both historically and geologically, China’s claims among both the Spratly and the Paracel Islands are nonsense. China bases its claims in the so-called nine-dash line, which it said was based on historical Chinese activities. But the nine-dash line appeared first on maps only in 1947; historical Chinese maps dating back centuries do not provide any substantiation for these claims. Chinese fishing activities from centuries past are likewise meaningless because Vietnamese, Indonesian, and Filipino fishermen also frequented the rocks and reefs of the South China Sea.
Indeed, the historical evidence is far stronger for other regional countries. When the United States took possession of the Philippines as the result of the U.S. victory in the Spanish-American War of 1898, Washington also assumed control over Scarborough Shoal and Mischief Reef. When the United States granted the Philippines their full independence on July 4, 1946, and withdrew, the U.S. transferred Scarborough Shoal and Mischief Reef to the Philippines. An arbitration tribunal convened under the 1982 UN Convention on the Law of the Sea also ruled that China has no legal basis to claim “historical rights” within the nine-dash line.
China, however, has cared little for international law or tradition; rather, it embraces only the notion that might makes right. In some cases, it has literally shot every Filipino manning outpost on remote, historically Filipino reefs and shoals. China has also continued to build upon reefs not its own (permanently destroying unique underwater habitats to gather enough rock to crush and sand) and has broken every pledge not to militarize its new “islands.” Creating artificial islands out of reefs and rocks, however, does not under international law bestow the territorial seas or exclusive economic zones that China seeks to claim. For this reason, the United States is right to continue to use its navy to ensure freedom of passage through international waters, much as it did in 1981 with the Gulf of Sidra under former President Ronald Reagan and the Strait of Hormuz and Persian Gulf in subsequent years.
While China’s claims to the rocks, shoals, and reefs it has seized are contrived and empty, there is one claim that is not. Taiwan possesses Itu Aba, sometimes called Taiping Island, the largest land feature in the Spratly Islands. While the international community classifies Itu Aba as a rock, the Taiwanese point out that it traps rainwater and thus possesses freshwater and could support a meaningful economy, a position the Philippines, which disputes Taiwan’s possession, disputes. A 2016 arbitration panel agreed with the Philippines that Itu Aba is a rock and not an island, but its logic was far from conclusive, and its own disdain for precedent undercuts its claim to have its ruling considered to be final.
As China has ignored its own previous agreements and diplomatic commitments, it is time the United States stops adhering to a diplomatic process that Beijing treats with disdain. Rather, Washington might consider recognizing Taiwan’s claim to Itu Aba and, by extension, that island’s territorial sea and exclusive economic zone.
Recognition of Taiwan’s ownership of Itu Aba as ownership of an island, however, will not alone be enough.
Rather, the U.S. should provide defense assistance to Taiwan to help protect the island — with both advanced radar and anti-aircraft missiles. The United States might also consider deploying scientific teams to conduct research — that is, after all, how China excuses many of its own deployments. The Philippines might be angry but Filipino President Rodrigo Duterte’s embrace of China despite other arbitration rulings against Beijing should blunt any Filipino complaint. China will also complain rather shrilly and will saber-rattle.
Of course, this is dangerous. But so too is simply allowing China to bulldoze through the region without any meaningful resistance. Diplomacy, after all, only works when all parties are equally invested in it. China, alas, has for too long gotten away with treating diplomacy as an asymmetric warfare strategy to tie its opponents’ hands while it acts unilaterally and without regard for what its diplomats may say or promise. China can decide which path it wants to go down but, whatever Beijing’s decision, it’s crucial Washington play the same game.
Michael Rubin (@Mrubin1971) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a resident scholar at the American Enterprise Institute and a former Pentagon official.
