On the Sovereignty Legitimacy of Island-building
YU Shifeng[1]
［Abstract］ In theory, as an act of sovereignty-exercising by a state, island-building belongs to the category of “territory accretion”in traditional international law．In practice, a state always fully exercises this sovereignty under the principle of Sovereignty Supremacy．With the signing of the United Nations Convention on the Law of the Sea, the modern legal system became separately applicable to the behavior patterns and legal consequences of islanding-building．Island-building is not only a unilateral behavior of a state, but also relates to the maintenance of the international legal order．Influenced by subjective and objective factors, together with sovereign legitimacy elements, island-building is now subject to both domestic law and international law．During the exercising of national sovereignty, it is necessary to determine the boundaries of sovereign legitimacy, in order to avoid such illegal tendencies as sovereignty abuse．Different from Japan's island-building behavior on Okinotori atoll, China's does not violate international law because China abides by the principle of sovereign equality throughout the entire process, after analyzing and proving the legitimacy of its behavior.
［Key words］ Island-building, Territorial Accretion, Unilateral Acts of a State, Residual Rights, Sovereign Legitimacy
Recently, China is undertaking its island-building project on its islands and reefs in the South China sea[2], whichattracted considerable domestic and international attention．Foreign media[3], foreign governments[4], as well as countries such as Vietnam and Philippines which have claimed their sovereignty over those islands and reefs, all raised objection to China's behavior, accused Chinese government of violating international law, and claimed that China's island-building is a provocative and unilateral change of the status quo, against the Declaration on the Conduct of Parties in the South China Sea (DOC)．Furthermore, there was a foreign official[5]observing that China is strongly against Japan's island-building on Okinotori atoll, but turns a blind eye to the same behavior of its own, which violated the Estoppel principle of international law．Are the facts and laws really so?
On a country's island-building behavior, academic research lags behind the practice of a state．The academic field pays tremendous attention to the technical part of island-building[6], but scant as to the legal part[7]．The reasons are twofold．On the one hand, island-building is a highly sensitive issue．In nature, it is more than a territorial expansion into offshore area, closed sea or semi-closed sea, but extending to the islands and reefs in the sea, which sometimes happen to be sensitive waters and consequently leads to legal disputes and confusion．On the other, island-building is distinctly different from country to country, especially with respect to legal affairs involving the sea and territories due to the importance of the natural resources, security and strategic position of the sea.
So what exactly is island-building? What specific legal nature does it have? Is it lawful for Japan to build island on Okinotori atoll? Why is China's island-building in the South Sea legitimate, and what is its legal basis? What is the legal difference between these two island-building acts? This article attempts to analyze these questions in four parts by surveying the historical practice, clarifying the differences, distinguishing the legal properties, and synthesizing the gist．The first part analyzes the nature of island-building by tracing it from the traditional and modern point of view．The second part synthesizes the legitimacy of China's island-building by jurisprudence analysis．The third part distinguishes whether it is legitimate for China and Japan to build their islands respectively, as well as their distinctive influence factors, characteristics, and standards, with the practices of these two countries as the positive and negative examples．The fourth part summarizes this article by referring to the reality and finally making a conclusion.
[1] YU Shifeng, assistant researcher of Center for Rule of Law Strategy Studies, East China University of Political Science and Law．This paper is the partial fulfillment of the Research on the Use of Non-residential Islands (The National Social Sciences Fund).
[2] Foreign Ministry spokeswoman Hua Chunying admitted that China was performing island-building in the South China Sea at a routine press conference on Sep.9, 2014．See http://news.xinhuanet.com/world/2014-09/10/c-126969053.htm, visited on Oct.20, 2014.
[3] BBC journalist Rupert Wingfield-Hayes took close-up shots of the construction site of China's island-building project on Chigua Reef (known as South Johnson Reef in Western countries) by taking a Philippine vessel, and then published a news report entitled China's Island Factory in support of Philippines' territorial claims and political position．See http://www.bbc.co.uk/news/special/2014/newsspec_8701/index.html, visited on Oct.20, 2014.
[4] U.S．Defense Secretary Chuck Hagel demonstrated the position of the American government on this issue by denouncing China's island-building act in the South China Sea at the Asian Security Conference in Singapore in May．See http://www.nytimes.com/2014/06/17/world/asia/spratly-archipelago-china-trying-to-bolster-its-claims-plants-islands-in-disputed-waters．html, visited on Oct.20, 2014．The Japanese government perceived China's island-building in the South China Sea as a preparation for its construction of the South China Sea Air Defense Identification Zone, and expressed objection to it．See http://www.nytimes.com/2014/06/17/world/asia/spratly-archipelago-china-trying-to-bolster-its-claims-plants-islands-in-disputed-waters．html, visited on Oct.20, 2014.
[5] Philippine Justice Antonio T．Carpio delivered a speech entitled “Protecting the Nation's Maritime Wealth in the West Philippine Sea”at Philippine Women's Judges Association on March 6, 2014, charging China of violating the Estoppel principle of international law by arguing that the China's position on Japan's island-building on Okinotori atoll contrasts sharply with the same behavior of its own on Chigua Reef．See http://www.imoa.ph/speech-protecting-nations-marine-wealth-west-philippine-sea/, visited on Oct.20, 2014.
[6] The Technical part of island-building mainly focuses on the technical problems which are necessary for island-building, such as ocean currents, marine geology, and the growth of coral reefs.
[7] Currently, CNKI (short for “China National Knowledge Infrastructure”, http://www.cnki.net, the official Online publishing platform for China's academic publications) includes a total of over 10 articles on legal analysis of island-making in Chinese language, but all of them are on the legal problems of “offshore island-building”．As for the legal problems between sovereign countries due to island-making, only one article, “Reflection on the Disputes over Land Reclamation between Singapore and Malaysia from the Perspective of international law”, relates to it slightly.