Third Strike: The Australian newspaper doesn't get UNCLOS

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I have attached my unpublished letter to the editor and the story that prompted my response.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

https://research.unsw.edu.au/people/emeritus-professor-carlyle-alan-thayer