During a joint press conference on Friday, US President Barack Obama and Chinese President Xi Jinping addressed the increasingly tense situation in the South China Sea, an important body of water with rich fishing and untapped mineral and energy resources that is also the site of a thicket of overlapping claims by the six countries that surround it: Brunei, China, Taiwan, Malaysia, Vietnam, and the Philippines.
The Spratly Islands — a group of islets, reefs, and atolls that have been the site of China's widely reported land-reclamation efforts — were a particular focus of the two leaders' remarks.
Xi used the opportunity to press China's claims to the Spratlys and their wealth, stating that the islands have been Chinese territory "since ancient times." Many of China's neighbors have competing claims over the Spratlys, which Xi referred to in his speech as the Nansha Islands, as well as other outcroppings in the South China Sea. The Philippines has challenged China's claim on the Spratlys and much of the South China Sea before the Permanent Court of Arbitration at The Hague.
China has been the most active country reclaiming land by piling dredged sand on top of narrow reefs, but Vietnam, Malaysia, Taiwan, and the Philippines have also done so to a lesser degree. China had reclaimed more than 2,900 acres as of June, according to the US Department of Defense, while the Philippines had reclaimed some 14 acres.
"China has now reclaimed 17 times more land in 20 months than the other claimants combined over the past 40 years, accounting for approximately 95 percent of all reclaimed land in the Spratly Islands," wrote the Department of Defense in its recent Asia-Pacific Maritime Security Strategy report.
Understanding Chinese claims in the region requires an understanding the geography of the Spratly Islands, which are not really islands but rather a collection of uninhabitable rocks, submerged reefs, and low-tide elevations. The legal status of these formations — and, to a lesser extent, neighboring ones — prior to China's land-reclamation work is itself a matter of some dispute.
"There may be definitive status in some states' minds, but there is disagreement by other states," James Kraska, a professor at the Stockton Center for the Study of International Law at the United States Naval War College, said. "There is no final arbitration to issues of territorial title unless the states submit their claims to the International Court of Justice or some other adjudicative body."
The status of such sites is crucial because under the United Nations Convention on the Law of the Sea (UNCLOS), to which China is a signatory, the unaugmented state of a land featuredetermines the maritime zones that can be claimed. In other words, astroturfed sovereignty doesn't count in the eyes of the law. Artificial islands do not generate a 12-nautical-mile territorial sea; nor do so-called "low-tide elevations" — small reefs or islands that disappear completely at high tide — if they fall outside of a nation's existing territorial sea. Rocks, which remain above water regardless of tidal fluctuations but are unable to sustain human life, do generate a territorial sea, but not the 200-nautical-mile exclusive economic zone that is accorded to a habitable island, giving a country sole rights to whatever sources of wealth lies beneath that stretch of water.
China's large-scale land-reclamation project has obscured many of the natural features of the South China Sea, while its actions, including warning away US military aircraft operating in the vicinity of the islands, suggest that it is enforcing maritime zones that have no basis in the original geography of the region. But if given time and left unchallenged, they could become de facto reality considering the customary nature of international law.
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"There are a couple of overlapping legal issues," said Greg Poling, director of the Asia Maritime Transparency Initiative at the Center for Strategic and International Studies. "One: These are… not necessarily high seas, which means that it is certainly reasonable for other states to argue that China is illegally building artificial islands in their claimed exclusive economic zones, rather than in international waters."
"The other," he added, "is whether or not China is claiming maritime entitlements beyond a 500-meter safety zone for an artificial island. We have every indication that they are doing so, since they are warning away other military craft and civilian vessels."
While the United States does not lay claim to any of the features comprising the Spratly Islands and is not a signatory to UNCLOS, the US Navy nevertheless routinely conducts freedom of navigation operations (FONOPS) wherever excessive maritime claims are made worldwide, including in the South China Sea.
"The entire point of FONOPS is to show consistent contestation of what you would consider excessive or illegal maritime claims," Poling said. "A one-off operation within 12 nautical miles of Mischief Reef or Subi Reef doesn't do much."
He noted that the US contested every nation's claims to the South China Sea except for Brunei's last year.
"The goal is not to show the flag," he remarked. "The goal is not to send a message to China. It is to contest extralegal claims."
"The very worst thing the US can do is FONOPS that skirt away from 12 nautical miles, which is what it has done," Kraska said. "It must go inside 12 nautical miles on a routine basis and with routine presence — in the air, on the surface, and submerged. And other states should as well."
Despite the anxiety that China's attempts to dredge sovereignty from the seabed have caused, conflict over these territorial disputes is far from inevitable, said Dr. Jacques deLisle, director of the Asia Program for the Foreign Policy Research Institute.
"Nobody wants to go to war over this," he said. "The real risks are accidental escalation, and one of the things that can happen to help avoid that is to have better communications." Last year, China and the US moved in that direction with the creation of a multinational agreement known as CUES, or Conduct for Unplanned Encounters at Sea.
China's government could also clarify its position.
"One of the things the US has been very frustrated about has been trying to get from China a clear answer on whatexactly the natures and contours of its claims are," deLisle said. "Until we know what they're claiming, it's hard to know where we would be crossing what they consider significant lines."
On Friday, Obama reiterated his intention to continue to combat excessive maritime claims, stating that "the United States will continue to sail, fly, and operate anywhere that international law allows." He was essentially saying that the US will continue to express its view of the facts on the ground by operating as though these artificial islands are just that.
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