As China continues its reclamation activities in the South China Sea, there is speculation that it will use the new land masses to justify its international legal claims. One critical question will be whether it claims an Exclusive Economic Zone (EEZ) for each of the features being developed.  Given China’s interpretation of the rights of other states in its EEZ, this step would be worrisome for those that are committed to freedom of the seas.  But, as examined below, China has already taken the position that artificial improvements will not change the legal status of land features.  The question now is whether China will demonstrate good faith and remain consistent in its position – something it has come to expect of other states.

Good faith is accepted as a general principle of international law that is rooted in equity, fairness, and consistency.  Among other sources, the requirement for states to act in good faith can be found in the United Nations Charter, the Vienna Convention on the Law of Treaties, the United Nations Convention on the Law of the Sea (UNCLOS),  and the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States.  To quote the latter, “[e]very state has the duty to fulfill in good faith its obligations under international agreements valid under the generally recognized principles and rules of international law.”  In practice, and somewhat controversially, the principle of good faith has been applied beyond the treaty-realm to conclude that a State’s unilateral declarations can create binding obligations under international law.  For instance, in the Nuclear Tests Case, the International Court of Justice (ICJ) relied on the principle of good faith in reasoning that unilateral political declarations could have binding effect in certain circumstances.

Only a few months ago, China invoked the ICJ’s reasoning while advocating for consistency in state positions in the South China Sea disputes.  In fact, in its position paper on the Philippines arbitration case, China went so far as to argue that the Philippines had violated the principle of good faith by making inconsistent political statements.  Citing the Nuclear Tests Case, China embraced an expansive interpretation of the principle in arguing that the Philippines had breached  its obligation to act in good faith by, on the one hand, ignoring the call in the Declaration on the Conduct of Parties in the South China Sea (DOC) for negotiated dispute resolution by initiating arbitration while, on the other hand, pressing for full implementation of the DOC.  China argued that in taking these two positions at once, the Philippines had fallen short of its obligation to act in good faith, an obligation China interprets as “requir[ing] all States to honestly interpret agreements they enter into with others, not to misinterpret them in disregard of their authentic meaning in order to obtain an unfair advantage.”

In March, China again condemned what it perceives as political inconsistencies by the Philippines, this time regarding construction activities in the South China Sea. It has similarly faulted other states for assuming inconsistent positions with respect to their sovereignty claims.  For instance, addressing the state parties to UNCLOS last June, China’s Ambassador to the United Nations argued that Vietnam’s claim to the Paracel Islands contradicted earlier Vietnamese declarations on the sovereignty of the islands.  The Ambassador referenced the doctrine of estoppel, an equitable principle rooted in good faith that acts to bar parties to a dispute from changing positions to the detriment of their opponent, suggesting that Vietnam could no longer be trusted in international relations.  According to the Ambassador, “trustworthiness is of paramount importance in state-to-state relations.”

By introducing the principle of good faith as a substantive obligation applicable to the interaction of states in the South China Sea, China has invited the same scrutiny from states wishing to challenge future Chinese claims as inconsistent with its own positions in the past.  Which brings us to China’s position on Okinotori Island, a feature in the East China Sea.  Readers may recall that, in 2009 and again in 2011, China formally challenged Japan’s inclusion of Okinotori in its submission before the Commission on the Limits of the Continental Shelf (CLCS).  China’s primary contention was that Okinotori was a “rock” under Article 121 of UNCLOS and, thus, not entitled to a continental shelf or an EEZ.  In making its argument, China emphasized that Okinotori could not sustain life “on its natural conditions.”  This statement was a reference to Japan’s substantial efforts to artificially fortify Okinotori so as to prevent its erosion.  To the Chinese, this represented an impermissible effort to change the facts on the ground and prompted the Chinese Foreign Ministry’s admonition that “the construction of infrastructure will not change Okinotori Reef’s legal position.”

While the question of whether a feature is a rock or an island is outside the mandate of the CLCS, the Commission took note of China’s argument and deferred ruling on Okinotori’s right to a continental shelf.  China hailed this determination as “fair and reasonable” and stated that the Commission had “safeguarded the overall interest of the international community.”

There is no doubt that China perceived its position on EEZs and uninhabitable rocks to be advantageous in regards to Okinotori, but it may prove to be an inconvenient precedent for possible land-based claims in the South China Sea.  Just as it had criticized Japan for doing, China is today engaged in construction of infrastructure on what may be similarly uninhabitable features.  The prospect of future EEZ claims arising from this construction exposes a dramatic inconsistency with China’s earlier opposition at Okinotori and, despite challenging states to respect the principle of good faith, substantially detracts from the predictability in state-state relations that good faith ought to produce.

China’s call for consistency and adherence to international legal principles in the region is positive, but leading by example would be far more effective.  China should clarify the intent of its reclamation activities in the South China Sea and reaffirm its position that maritime claims cannot be perfected through human development of otherwise uninhabitable features.  These are steps that China can itself take to promote good faith and “safeguard the overall interest of the international community.”

About Ryan Santicola

Ryan Santicola is a judge advocate in the United States Navy. The views expressed in this article are the author’s own and do not necessarily reflect those of the U.S. Government, the Department of Defense, or the Department of the Navy.