Third Strike: The Australian newspaper doesn't get UNCLOS
Dear Colleagues,
This
is the third time in recent months I have written to the Editor of The
Australian newspaper pointing out that military maritime patrols – such
as US Freedom of Navigation Operational Patrols – are not addressing the
real problem in the South China Sea posed by China’s occupation of
several features. China claims all the islands and adjacent waters in
the South China Sea embraced by its nine-dash line claim. China has not
clarified its claims which it is required to do under the United
National Convention on the Law of the Sea (UNCLOS). China occupies at
least seven features in the Spratly archipelago. But China has not
declared their status – islands, rocks or low tide elevations – nor
promulgated any baselines around these features. Baselines are essential
for determining maritime zones such as the 12 nautical mile territorial
sea and the 200 nm Exclusive Economic Zone (EEZ). Instead, China
actively asserts a “military alert zone” over the Spratly islands and
demands that foreign military aircraft and ships leave this area.
If
China declared a certain feature to be a rock and promulgated its
baselines, then this rock would be entitled to a 12 nm territorial sea.
This means that foreign navies would have to exercise innocent passage
if they sailed inside the 12 nm. All of Chinese-occupied features are
disputed.
If
China attempted to declare a 12 nm territorial sea around one of its
artificial islands built on a low tide elevation, this would be an
excessive claim under international law. Low tide elevations are not
entitled to a territorial sea or EEZ. Even if a low tide elevation were
converted to an artificial island its legal status remains unchanged.
Artificial islands and structures are entitled to a 500 metre safety
zone.
China’s “military alert zone” has no basis under UNCLOS.
I have attached my unpublished letter to the editor and the story that prompted my response.
Carlyle A. Thayer, Emeritus Professor
The University of New South Wales at the
Australian Defence Force Academy, Canberra
and Director, Thayer Consultancy
P.O. Box 435
Jamison Centre, ACT 2614, Australia
Home Office: +612 6251 1849
Mobile: +61 0489 906 928 (International)
Mobile: +61437 376 429
Skype carl.a.thayer
Publications: http://www.scribd.com/carlthayer
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