Ⅲ．The Differences in Legitimacy Between the Island-Building Acts of China and Japan
China's island-building in the South China Sea is legitimate, while Japan's on Okinotori atoll is illegitimate．And the accusation made by such states as Vietnam and the Philippines which claim their sovereignty over the South China Sea has no legal basis．We reached these conclusions by applying the reconstructed concepts of island-building legitimacy into the actual cases, based on the above legal theories and reasoning．This section will explain these conclusions in details and distinguish the legitimacy issues of the island-building practices of China and Japan.
A．Objective Factors: The Difference in the Questionable Source of Rights
Japan's island-building takes place on Okinotori atoll, 1740 kilometers away from Tokyo．At first there were five rocks above the water at high tide, and afterwards due to the erosion of the seawater, only two mattress-sized rocks poke out of the water, about one meter high, 4.6 meters wide and only 6.75 square meters in size.[1]Its construction is by cultivating coral reefs to achieve the purpose of territory accretion,[2]which belongs to the category of island-building at the high seas, namely, the expansion of the existing reefs．Chinese scholars have made extensive legal research on Japan's island-building on Okinotori atoll, and focused on the legal status of “islands”and “rocks”to illustrate its illegitimacy.[3]And the legal basis of this argument is the stipulation of Paragraph 3, Article 121 of UNCOLS, that “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”The emphasis is that Okinotori atoll is “rocks”instead of “island”, and can possess only 12 nautical miles of territorial sea and 24 nautical miles of contiguous zone, but not its exclusive economic zone or continental shelf．Other scholars also exploited another way of convention interpretation to deduce the relationship between “island”and “rocks”[4], which implies an indirect recognition that Okinotori atoll belongs to Japan, which is contrary to the facts.
In history, Okinotori atoll was first sighted by the Spanish sailor Bernardo de la Torre in 1543, and he named it “Abre Ojos”, which means “be watchful”in Spanish．In 1789, the British navigator William Douglas arrived with the ship Iphigenia, found the geographical feature of this place, and in the following year named it Douglas Reef.[5]After the Spanish jurisdiction over Okinotori atoll, with the defeat of Spain in the Spanish-American War, it was sold to Germany．And after the Germany's defeat in the First World War, the atoll was assigned to Japan as a mandate according to the Treaty of Versailles．In 1922, the Japanese navy ship Manchu investigated the area for the first time, in 1926 for the second time and on a large scale, which concluded that it was possible to establish a “seaplane base”on it．At that time, there was a view in Japan that under international law, it might be controversial to claim Japan's territorial sovereignty depending on such geographic features of the atoll, but the Japanese government believed that it was an opportunity to make a fait accompli by declaring the atoll Japanese territory．Therefore, in 1931, Japan officially claimed that it owned the “geographical features”[6]sovereignty[7]of Okinotori atoll．From the historical process, it can be found that Japan's position on Okinotori atoll is that it belongs to Japanese territory, and its island-building is a right within the scope of its exercise of sovereignty.
However, the legality of acts is derived from the legitimate source of sovereign rights．But in the author's opinion, the legal source of rights of Japan's island-building is dubious and the reasons are as follows: firstly, the right that Japan obtained to exercise to Okinotori atoll after the WWI is mandate rather than sovereignty．Secondly, Japan's unilateral declaration of sovereignty over Okinotori atoll violates international law, because neither the Covenant of the League of Nations nor theCharter of United Nationsstipulates that a mandate could be automatically transformed into territorial sovereignty．According to Article 22 of the Covenant of the League of Nations, with “mandate”or its later replacement “trusteeship”, the Mandatory can exercise jurisdiction, supervision or administration over the mandated territory, but all these rights are not equivalent to sovereignty．Although some Japanese scholars pointed out that according to Paragraph 6 of Article 22 of the Covenant, Okinotori atoll satisfies the condition that “owing to…… their remoteness from the centres of civil isation, or their geographical contiguity to the territory of the Mandatory…… (the mandated territory) can be best administered as integral portions of its territory”[8]．However, the reality is that though the legal basis of Japan's claim for its territorial sovereignty over Okinotori atoll is the Covenant, in the same year as its declaration of sovereignty, Japan unilaterally announced its withdrawal from the League of Nations when it was investigated by the League due to its invasion of northeastern China．Thus, the Covenant was no longer applicable to Japan．Thirdly, Japan's island-building on Okinotori atoll is not an exercise of its sovereign rights because its source of sovereign rights is questionable．And international law rather than its domestic law should be applicable to its practice of island-building．But it is certain that it should exclude the application of the provisions of UNCOLS on artificial islands within the territorial sea.[9]From the above, the objective factors of Japan's island-building do not meet the criteria of legitimacy.
However, China's island-building in the islands of the South China Sea is completely different from Japan's．Firstly, China possesses an indisputable sovereignty over the islands of the South China Sea, which has been proved by historical evidence, maps, as well as other real evidence.[10]Secondly, China's island-building has the characteristics of sovereignty exercising．The islands that are in construction at the present time, such as Yongshu Reef (also referred to “Cuarteron Reef”by Western countries), Chigua Reef (also “South Johnson Reef”), Huayang Reef (also “Cuarteron Reef”), and Dongmen Reef (also “Hughes reef”)[11], all belong to the Chinese territory．In addition, all the baselines of all these islands can be used not only to demarcate the territorial sea and the contiguous zone, but also to claim their corresponding exclusive economic zones and continental shelves, because they all have been inhabited and stationed for a long time．It is also worth noting that Paragraph 3, Article 121 of UNCOLS is not applicable to the islands that are being expanded now, so that China's island-building acts are legal in terms of the objective factors.
B．Subjective Factors: The Difference in Purposes
The island-building practice of both China and Japan are unilateral state acts without consultation or agreement with third countries．And the declaration of will of these two states both demonstrates their intent to maintain the environment of the islands they build and their interests in the surrounding sea area of the islands．During the construction, China's island-building approaches in the South China Sea are more complex than Japan's,[12]but the actual results are the same: island expansion．From the perspectives of purposes and results of their practices, the declaration of will of these two states seems quite explicit．But their subsequent specific practice reflects the distinction in the tendency of their purposes.
Japan's island-building not only aims at the claim of territorial sea and contiguous zone, but also that of the exclusive economic zones and continental shelf．China and South Korea oppose to the latter claim of rights, holding that Okinotori atoll is just “rocks”, with no basis to claim these rights．Moreover, it is a violation of the basic rules of international law to claim the exclusive economic zones and the continental shelf of several hundred thousand kilometers, on the basis of the “rocks”of such a small size．And Japan took a proactive stance in its sovereign declaration, by submitting its application for the continental shelf expansion to the UN Commission on the Limits of the Continental Shelf (CLCS) in November 2012．And the basis of the continental shelf stems from Okinotori atoll.[13]Japan's proactivity clearly indicates that the purpose of its island-building is to expand its national maritime rights and interests by seizing the resources of the exclusive economic zones and the continental shelf．Originally belonging to the common heritage of mankind, and to the international seabed area of the high seas, these resources are being coveted by Japan's privatization．The subjective purpose of building “artificial islands”is to protect their ecology and consolidate their rightful place in the sea, which is different from the “artificial constructing”that intentionally destroy the islands' ecology and nature in order to fight for their legal status and to enhance their effectiveness in delimitation．There should be a causal relationship between the artificial construction and maintenance of the islands and the ecological threats they face, while at the same time island-building should not harm the legitimate maritime rights and interests of other countries, nor undermine the security of the navigation courses and the overall maritime ecology.[14]Therefore, Japan's island-building practice does not conform to the theory of territory accretion in international law．On the contrary, its act violates the rights and interests of its maritime neighbors.
In contrast, China's island-building practice on the islands and reefs of the South China Sea fully complies with the existing system of international law, either from the embodiment of a state's will, or the way of its sovereignty declaration．The purposes of its island-building on the islands and reefs of its own territory in the South China Sea is to improve the living conditions of the inhabitants working and living there, as well as to provide with them the necessary logistic support,[15]which are also the indisputable state rights that are granted by territorial sovereignty．As early as in 1958, the Declaration of the Government of the People's Republic of China on China's Territorial Sea has affirmed China's sovereignty over the islands of the South China Sea.[16]And there is no need for China to re-declare through the exercise of its island-building rights, and thus it does not violate the obligation of omission, which is in line with the customary practice of international law．Therefore, China's island-building practice also is legitimate in terms of the subjective factors.
C．Factors of Sovereignty Legitimacy: The Differences in Practices
As a traditional maritime power, Japan has a strong awareness of sea power with its world-leading naval power and maritime development capabilities．With its “interests-oriented”maritime legislation, Japan never stops its exploration of marine resources and expansion of the island territory．It is common for Japan to encroach upon the maritime rights and interests of its neighboring countries through domestic legislation and unilateral acts.[17]Although Japan has repeatedly claimed that the international maritime legal order should be preserved by a legal system with UNCOLS as its core, the truth is that it does not follow “the rules of the maritime game”stipulated by UNCOLS．And for many times, its actions, due to its malicious presumption of rights and virtual inequality, further intensified the regional sea situation and worsened the complicated legal disputes over the seas of East Asian more than ever.
Firstly, Japan's island-building on Okinotori atoll is a malicious presumption of Article 121 of UNCOLS, which is an active “circumvention”of unfavorable arguments in international law．The construction of Okinotori atoll and the cultivation of its coral transformed the disappearing rocks into a permanent island．And such transformation from “rocks”into “island”aims to make the regulation of Paragraph 1 and 2, Article 121 of the UNCOLS applicable to its island-building, but not that of Paragraph 3．In addition, the CLCS did not acknowledge Japan's application for the extension of continental shelf, which is located at the southern Kyushu-Palau ridge, south to Okinotori atoll in 2014.[18]This result also reveals the negative view of the international community and international organizations toward the approach of “legal circumvention”, which is a malicious presumption of the maritime rights．Against the background that there are many residual rights under the law of the sea, if a state makes a malicious presumption of the connotation and denotation of state rights on the excuse of sovereignty supremacy, and seriously harms the interests of other states and even the entire human society, this method will not be sustainable, and will damage the interest balance mechanism anticipated by international law．As a result, the authority of international law will be undermined, the international legal order broken, and global governance process paralyzed.
Secondly, Japan's island-building reflects substantive inequality, contrary to the values of “new egalitarianism”．Given its territorial size and geological structure, Japan has always attached great importance to island construction．Its artificial islands rank first in Asia in scale and number, and is also world leading．Japan claims that it is transformed from an order-breaker during the World War II into a follower and defender of international legal rules, and abides by the UNCOLS in its maritime practice.[19]But actually this is not the case．In compliance with the provisions of Annex II of the UNCOLS, Japan's request to extend its continental shelf does adopt the legal approach of international law to acquire more continental shelf and exclusive economic zones．But this request was based on the illegitimate island-building practice, filled with national “unilateralism”and abuse of rights, as well as lack of proportion—seeking enormous state interests by building a small artificial “islet”which was constructed on the basis of “small rocks”．And it was at the expense of the marine resources and interests of its neighboring countries, not to mention that the source of Japan's sovereign rights over Okinotori atoll is also questionable．The new egalitarianism tends to make a comprehensive assessment on a state's national practice, the fulfillment of its international obligations and the undertaking of its national responsibilities．Given Japan's past conducts, such as commercial whaling in the name of scientific research[20], large-scale hunting of other species of sea mammals[21], and provoking marine disputes with its neighboring countries—all these are a state's acts of sovereignty in a coat of dubious legitimacy．But after the above analysis, it can be found that these suspicious practices render its exercise of sovereignty illegitimate.
The prerequisites for China's island-building are that it should not prejudice the interests of its maritime neighbors, and that it should guarantee the freedom of navigation in international watercourses．Ever since Chinese government initiated the signing of the Declaration on the Conduct of Parties in the South China Sea, it claimed that the South China Sea should be constructed as “sea of freedom”and “sea of peace”．Both its prudent exercise of sovereign rights and that of the residual rights in the law of the sea in good faith reflect China's image of a responsible great power．The geographic and strategic position of the South China Sea is unique and important, with its sea area overlapping with the exclusive economic zones and continental shelves of many “small states”in Southeast Asia, and therefore the disputes in international law are the product of both history and reality．As a “great power”, China upholds the principle of sovereign equality．Ever since its founding in 1949, all its maritime practice has fully proved that China has never bullied the weak, but behaved with maximum self-control and forbearance when it was confronted with harms to its sovereign rights and interests．China abides by the rules of international law in both “the Declaration of Parties in the South China Sea”and the UNCOLS, strictly restrains its sovereign acts within the legal framework, and eliminates any unlawful elements in these acts．However, such self-control, forbearance, and restraint do not mean China will give up its sovereign rights and interests．By contrast, China always emphasizes the policy of “shelving differences, seeking joint development, and holding sovereignty in my hand”on the sovereignty issues over the islands of the South Sea．When a state's maritime territory, fishermen's lives, and navigation security are in serious danger, it is a necessity to exercise the state's sovereignty[22], which is also true with regards to the issues of island-building in the South China Sea．If China aims to achieve “good law and good governance”[23]in its governance of the South China Sea, it will also necessarily require the exercise of sovereignty and the use of international law, which is not only a right, but also an obligation granted by the international community for the development of each state.
Although both China and Japan build artificial islands on the pre-existing islands or reefs under their control in the sea areas far away from their main lands, their legal nature, sources of rights, interpretation of purposes, applicable laws, and national practices are of significant difference．That is to say, the objective factors, subjective factors and the factors of sovereign legitimacy of their island-building bear remarkable distinction．Therefore, the accusation by other states that China violates the Estoppel principle of international law is nothing but a nonsense and without any legal basis．China's island-building in the South China Sea complies with international law, and such an exercise of sovereignty is legitimate.
[1] See Wu Ka, An Analysis on the Legal Property of Okinotori Atoll, The Journal of Zhejiang Normal University (Social Science), Vol.1, 2008.
[2] See Guan Jiqian, On the Legal Status of the Nine-dash Line of the South China Sea, International Survey, Vol.4, 2012.
[3] Besides Okinotori atoll, legal academic research on the relationship between “island”and “rock”includes the issue of Socotra Rock (also known as “Suyan Rock”in China) which is a disputed area between China and Korea, as well as the legal status of the rocks of the South China Sea.
[4] See Wu Ka, A Review on the Disputes of Okinotori Atoll Between China and Japan: From the Perspective of Methodology, Studies in Law and Business, Vol.2, 2011.
[5] See Jiang Huangchi, On the Legal Status of Okinotori Atoll: From the Perspective of UNCOLS, National Taiwan University Journal, Vol.42, No.3, 2013.
[6] From the Japan's domestic documents at that time, it can be seen that Japan was very cautious of its declaration of Okinotori atoll, thus the term “geographical features”was used rather than “territory”or “island”.
[7] See Yukie Yoshikawa, Okinotorishima: Just the Tip of the Iceberg, Harvard Asia Quarterly, Vol.9, 2005, pp.51-53.
[8] See Barbara Kwiatkowska, Alfred H.A．Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, Netherlands Yearbook of International Law, T.M.C Asser Press, 1990, pp.150-151.
[9] Article 11 of UNCOLS.
[10] At its routine press conference in September 2011, China's Ministry of foreign affairs expounded China's official position on the issues of the South China Sea, “The historical and legal basis of China's sovereignty over the Nansha Islands (also known as Spratly Islands in Western countries) and their adjacent sea areas lies in the fact that China was the first to discover and name the islands in the South China Sea, and also the first to exercise sovereignty over them．And this exercise of sovereignty had been continuous．As early as in the Han Dynasty (B.C.202-220 A.D.), China had discovered the Nansha Islands, and the governments of all dynasties ever since the Tang Dynasty (618-907 A.D.) had always hold the jurisdiction over this area．And since the founding of the People's Republic of China in 1949, China has resumed the exercise of sovereignty over the Nansha Islands．Since the ancient times, China had always been developing, exploiting and exercising jurisdiction over the adjacent sea areas of the South China Sea．China's sovereignty, rights and related claims over the South China Sea have been formed and developed in the long history, which have been insisted by the Chinese government．See http://news.xinhuanet.com/world/2011-09/20/c_122058010.htm, visited on Nov.3, 2014．See also Xing Guangmei, A Research on China's Sovereignty Over the Islands of the South China Sea, Journal of Comparative Law, Vol.6, 2013.
[11] The geological features of these atolls are completely different from those of Okinotori atoll．There are lagoons in the former for fishermen to take a rest and use as a shelter．Moreover, either their sizes above the high tide line or their reef bases are larger than those of Okinotori atoll．Although both are named as “atoll”, their actual legal status and nature are not the same.
[12] Japan took the approach of coral breeding to build the island, while in China's island-building in the South China Sea, besides coral breeding, China also used Sky Whale, a self-propelled cutter suction dredger ship, to take “reclamation”operation on the original reefs and lagoons.
[13] See the application letter submitted by Japan to the CLCS, http://www.un.org/depts/los/clcs_new/submissions_files/submission_jpn.htm, visited on Nov.3, 2014.
[14] See Zhang Xianglan, Fan Yi, Legal Issues of Defining Islands and Rocks, Chinese Journal of Maritime Law, Vol.1, 2013.
[15] See Chinese Foreign Ministry spokeswoman Hua Chunying's answers to a BBC journalist's questions, http://news.china.com.cn/txt/2014-09/09/content_33466927.htm, visited on Nov.4, 2014.
[16] This Declaration won the responses and recognition of the neighboring countries．For example, then-Prime Minister Ph?m Vǎn Dông of the Democratic Republic of Vietnam issued an official correspondence, recognizing that the South China Sea Islands were an inalienable territory of China.
[17] On July 14, 2008, Japanese government unilaterally declared that Takeshima, whose sovereignty has been disputed by Japan and South Korea, belonged to Japan, which provoked a strong protest from South Korean．On September 11, 2012, Japanese government and Kurihara family, the so called “owner of the land rights”of Diaoyu islands, formally concluded a contract for the sale of the islands, with a purchase price of 2.05 billion yen．This unilateral act of Japan prompted a strong protest and opposition from the Chinese government.
[18] The CLCS approved Japan's application for the extension of its continental shelf north to Okinotori atoll, but it was because the geographical features of this block belong to natural extension．See http://thediplomat.com/2014/09/japan-takes-large-southern-extension-of-continental-shelf/, visited on Nov.6, 2014.
[19] See the official website of Japanese Foreign Ministry, http://www.mofa.go.jp/policy/inter_law/law/index.html, visited on Nov., 6, 2014.
[20] In January 2010, Australia prosecuted Japan in the International Court of Justice for its use of scientific research as a disguise to conduct commercial whaling, which violated the International Convention for the Regulation of Whaling．Australia also condemned Japan for being good at “taking advantage of loopholes of the international rules”to maximize its own interests.
[21] DeSombre Elizabeth, an American scholar, pointed out in her research article that the protection of sea mammals should be based on cooperation, and that any unilateral act will make such a goal a failure．Germany, Norway and other countries have successively formulated laws on sea mammals' protection, but Japan has always been outside of this system．See Elizabeth DeSombre, Fisheries and Marine Mammals, in Routledge Handbook of Global Environmental Politics, ed．by Paul Harris, Routledge, 2014, p.468.
[22] China repelled the invasion of the South China Sea Islands by the armed Vietnamese forces twice, in 1974 and 1988, respectively.
[23] See Zeng Lingliang, The Modernization of State Governance From the Perspective of International Law, Law and Social Development, Vol.5, 2014.