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The Latest Developments of the US Freedom of Navigation Programs in the South China Sea: Deregulation or Re-Balance?

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Abstract: The US may choose LTEs lying outside the range of 12 nm from any islands nearby (hereinafter non-offshore LTE. e.g., Mischief Reef) as a target for its future FONOPs in the Spratlys. FONOPs will be conducted within the 12 nm boundary in the way that freedom of navigation is unambiguously exercised in a normal pattern. The US would maintain that neither prior permission, nor even the ‘innocent’ passage is needed to justify FONOPs there. Those FONOPs will be conducted in order to reject any possible setting of a territorial water boundary for non-offshore LTEs in the Spratly Islands, where there are land reclamation activities attempting to change LTEs into islands. China has traditionally associated its position with developing countries, explicitly requiring foreign warships to obtain advance authorization to enter its territorial waters. China, however, may have another position on this matter, as its naval power grows. It may follow what the Soviet Union did in 1989. Admittedly, land reclamation activities can not change LTEs into islands; it can not change them into artificial islands within the meaning of UNCLOS either. The term,‘artificial islands’ in the UNCLOS is not defined, but is set into the same category with ‘installations’ and ‘structures ", which are rooted in and associated with continental shelf. Installations thus refer to construction works in the seabed rather than over LTEs. Moreover, Article 60, paragraph 7 of the UNCLOS provides that: “Artificial islands, installations and structures and the safety zones around them may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation. " This is unlikely to apply to LTEs which, by their very nature, sea lines avoid. In addition, Article 60 also prescribes due notice for the construction of artificial islands, installations and structures, or even removal of the same. However, such notice for the safety of navigation is not necessary in the case of construction in a LTE already marked in the charts, and removal of a LTE is physically impossible. The view that land reclamation in a LTE turning it into an artificial island also seems inaccurate given these considerations. The legal and political implication of the Chinese land reclamation in LETs in the Spratly Islands, in addition to stiffening up the garrison thereon, is to display China s sovereignty over the Spratly Islands suffering from illegal occupation by foreign States. It is a practical move for China to take for claiming the Nansha Islands in its entirety, but remains debatable for claiming sovereignty over individual LTEs. If international law does not prohibit appropriating non-offshore LTEs, freedom of navigation would wither at a zone around the LTEs set by the State for self-help and self-defense. Even if non-offshore LTEs are not subjects for appropriation, as long as activities in the LTEs are not forbidden (albeit meaningless in a mid-ocean LTE), a safety zone equivalent to that of artificial islands or even a defensive "bubble zone " in the case of a garrisoned LTE may be legitimately set up to which freedom of navigation may yield.

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