After an international tribunal rejected China's maritime claims surrounding its outposts in the Spratlys, China could try to use a number of planned offshore power platforms to justify the creation of expansive safety zones for their protection.
China’s first floating nuclear power plant is expected to be operational by 2019, and will likely be deployed to the South China Sea to support China’s outposts and oil drilling operations. CNOOC, the state enterprise which owns the mobile oilrig that deployed to disputed waters with Vietnam two years ago, has signed a contract for one such platform; another 20 are reportedly in the works.
Since China has shown no sign of renouncing its jurisdictional claims within the nine-dash line, it will likely assert control over the maritime space surrounding such plants for their protection. The recent arbitral award’s finding that several Chinese outposts in the Spratlys are artificial islands, not entitled even to a 12-nautical mile territorial sea, gives China added incentive to interpret expansively the law governing protection of offshore platforms.
Offshore installations are vulnerable to safety hazards and attacks
The UN Convention on the Law of the Sea (UNCLOS) allows states to enforce safety zones around artificial islands or installations with a radius of 500 metres. This is not adequate for protection against safety hazards or deliberate attack, as recognised in a recent report into the security of Australia’s offshore oil and gas sector; a speedboat loaded with explosives or armed men can cover that distance in around 40 seconds. This is not a hypothetical threat: in 2008, Nigerian militants attacked a platform 120 kilometres from the coast, and Southeast Asian terrorist groups have a demonstrated intent and capacity for offshore attacks.
The prospect of a maritime catastrophe could be used by China (or indeed any country) to justify expanded safety zones around its installations. This would be less controversial than an air defence identification zone over the South China Sea, particularly as safety zones would cover a smaller and non-contiguous area, which might only marginally impinge on commercial freedom of navigation. Such a move would align with China’s assertion (alongside Vietnam, India and several other Asian states) of rights to regulate foreign navigation through its territorial sea and exclusive economic zone. It would likely be justified through the same arguments made for a coastal state’s right to prohibit surveying and monitoring activity by foreign warships and aircraft beyond its territorial sea: that these provisions of UNCLOS derive from past state practice that is now out-dated due to technological advance, and that the final text of UNCLOS left the extent of coastal state rights unresolved.
Expansive safety zones in the South China Sea would serve the interests of two powerful constituencies in China: the state oil companies and the PLA. When CNOOC’s oilrig entered waters disputed with Vietnam in 2014, a three-nautical mile exclusion zonewas declared around it, and enforced to the point of collisions and sinkings. The PLA already asserts ‘military alert zones’ around Chinese outposts in the South China Sea, and is the most plausible driver of China’s 2013 declaration of an air defence identification zone over the East China Sea. PLA planners have strong incentives to continue deploying power-hungry equipment to the artificial islands in the Spratlys. The proximity of nuclear plants would have the added benefit of complicating enemy targeting of these outposts in a conflict, given the risk of spreading radioactive waste across a sea that carries a third of world maritime trade and feeds several hundred million people.
Limited US response options to unilateral expansion of safety zones
Such moves would likely be opposed by the US, which has blocked proposals in the International Maritime Organisation to accommodate safety zones wider than 500 metres as an infringement on freedom of navigation. But US response options would be limited; freedom of navigation operations in close proximity to a floating nuclear plant would be risky, and unlikely to play well in the court of public opinion. It could be argued that mobile ‘artificial installations’ are properly classified as ‘ships’, which are not entitled to safety zones at all; but since UNCLOS does not define either term, another arbitration might be needed to settle the matter. Treating a mobile nuclear plant as a ‘ship’ also raises thorny jurisdictional issues around its deployment into other countries’ exclusive economic zones, even leaving aside disputed sovereign rights.
Nor would the US be assured of international support in pushing back against China on this issue. As noted above, many regional states assert rights to control maritime space beyond what UNCLOS expressly permits. India reportedly has plans for five nautical mile safety zones around its’ offshore platforms, and Indonesia (which has a long record of disputing foreign navigational rights in its coastal waters) intends to buy its own floating nuclear plants. The Australian government report cited above recommends a concentric safety zone system around offshore platforms, including a five nautical mile exclusion zone. Expansive safety zones may well become a contentious issue between countries that see them as ‘creeping jurisdiction’ undermining the navigational freedoms enshrined in UNCLOS, and those viewing them a proper evolution of coastal state rights that were incompletely defined in UNCLOS.
Nonetheless, the first mover is likely to be China. It is of course possible that foreign opinion could steer China away from its higher risk options around mobile platforms in the South China Sea, even if the artificial islands are here to stay. Optimists can find a precedent in China’s approach to testing anti-satellite capabilities: international outcry over the results of the first test may have influenced the adjustment of subsequent tests to reduce collateral space debris. But as for most aspects of dealing with China, effective engagement is likely to require some flexibility in approach.
This article was first published on 26 August 2016 by the Interpreter, which is published by the Lowy Institute for International Policy, an independent think tank based in Sydney.