Yes, you read correctly, China is planning a deep-sea “space station”! Fortunately, we have popular Lawfire® contributor (and maritime law super-expert) Professor Raul (“Pete”) Pedrozo to explain it all to us, including some of the potential legal implications.
(In case you were wondering, here’s an interesting article“about the similarities between deep sea and space exploration and what risks they pose to explorers.”)
Here’s Pete’s quick update on a issue that I believe will become increasingly important international security issue.
China’s Deep-Sea Space Station
Raul (Pete) Pedrozo
Galaxy News
China announced that it plans to build a deep-sea space station in the South China Sea by 2030. The research station will be located at a depth of 6,000 feet and can house up to six scientists for a month at a time.
The station will reportedly be used to study cold seep ecosystems and monitor deposits of methane hydrates. A network of autonomous vessels (unmanned underwater and surface vehicles) and seabed observatories will support the space station to “create a four-dimensional monitoring system of the ocean depths.”
The United States is developing a similar project—PROTEUS—in coordination with the Proteus Ocean Group, which will be located off the coast of Curacao in the Caribbean Sea.
Nothing prevents China from building a deep-sea space station and deploying it to the ocean floor in the South China Sea provided it is located beyond the limits of national jurisdiction (UNCLOS, art. 1(1)).
All States may claim a 200 nautical mile exclusive economic zone (EEZ) (UNCLOS, art. 57) and continental shelf (UNCLOS, art. 76) measured from the baselines from which the breadth of the territorial sea is measured.
Within these maritime areas, coastal States have exclusive rights over the living and non-living resources, as well as jurisdiction over the establishment and use of artificial islands, installations, and structures; marine scientific research; and the protection and preservation of the marine environment (UNCLOS, arts. 56, 77).
All the South China Sea claimants—Brunei, Malaysia, Philippines, and Vietnam—have established 200-nautical mile exclusive economic zones and continental shelves consistent with the United Nations Convention on the Law of the Sea (UNCLOS).
China’s claim to “indisputable sovereignty”
Notwithstanding these entitlements, China claims “indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof” contained within the infamous Nine-Dash Line (9DL).
In 2013, the Philippines instituted arbitral proceedings against China under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS) challenging (inter alia) the validity of the 9DL. Specifically, the arbitration concerned (inter alia) the role of historic rights and the source of maritime entitlements in the South China Sea and the status of certain maritime features in the South China Sea.
Permanent Court of Arbitration
On July 12, 2016, the Tribunal issued a unanimous award in favor of the Philippines that is final and legally binding on China (UNCLOS, art. 296, art. 11 of Annex VII). Regarding the 9DL, the Tribunal concluded that UNCLOS defines the scope of maritime entitlements in the South China Sea, which may not extend beyond the limits imposed by the convention.
Thus, the Tribunal concluded that China’s claims to historic rights, or other sovereign rights or jurisdiction, related to the maritime areas of the South China Sea encompassed by the 9DL are contrary to the convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements under UNCLOS.
Impact of UNCLOS
In short, UNCLOS superseded any historic rights or other sovereign rights or jurisdiction beyond the limits imposed in the convention (Award, ¶¶ 277, 278). The Tribunal further determined that none of the high-tide features in the Spratly Islands are “islands” within the meaning of Article 121(3), but rather are “rocks” that do not generate entitlements to an EEZ or continental shelf. (Award, ¶ 646).
Given that the mission of the research station is to study cold seep ecosystems and track methane hydrates as a potential future energy source, China may only deploy the deep-sea space station in the high seas donut hole (see map) in the South China Sea. As previously mentioned, coastal States enjoy sovereign rights over the living and non-living resources of the EEZ.
Tracking methane hydrates as a potential energy source would clearly fall within the exclusive jurisdiction of the coastal State. Similarly, marine scientific research (e.g., studying ecosystems) in the EEZ and on the continental shelf can only be conducted with the consent of the coastal State (UNCLOS, art. 246).
Situating the research station within 200 nautical miles of any of the other South China Sea claimants without their consent would violate China’s obligations under UNCLOS.
If used for military purposes
Although the stated purpose of the space station is to conduct civilian research, given China’s lack of transparency, it is likely that the facility will also be used for military purposes (e.g., tracking submarines and surface ships, as well as other intelligence, surveillance, and reconnaissance (ISR) activities). Autonomous vessels supporting the research station could also be transformed or reprogramed to perform military missions (e.g., ISR, mine warfare).
Generally, combatants should distinguish between civilian objects and military objectives and direct their operations only against military objectives (DoD Law of War Manual, ¶ 5.4.2).
Military objectives include “any object which by its nature, location, purpose or use makes an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” (DoD Law of War Manual, ¶ 5.6.3).
Nonetheless, a civilian object, like the research station, may become a military objective and thereby lose its immunity from deliberate attack depending on its use or purpose.
During an international armed conflict, if used (or could potentially be used) to support military operations, the deep-sea space station could be considered a military objective and made the object of a direct attack even though there are civilian personnel on board (Newport Manual on the Law of Naval Warfare, §§ 1.1, 5.4.1, 8.8.1). The presence of civilians in or on a military objective does not alter its status.
Moreover, at sea, the principle of proportionality underlying the concept of collateral damage is applied using a vessel-based construct. A naval commander does not have to conduct an individualized proportionality assessment of embarked personnel on the vessel once it is deemed to be a military objective (Commander’s Handbook on the Law of Naval Operations, § 8.3.2).
About the author:
**Captain Raul (Pete) Pedrozo, U.S. Navy (Retired), is the Howard S. Levie Chair on the Law of Armed Conflict and professor of international law at the Stockton Center for International Law, U.S. Naval War College. Prof. Pedrozo was the former senior legal adviser at U.S. Pacific Command and served as special assistant to the Under Secretary of Defense for Policy.
Disclaimers:
T he views and opinions expressed in this article are those of the author and do not necessarily reflect those of the U.S. Naval War College, the U.S. Department of Defense, or the U.S. Government.
The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See alsohere).
Remember what we like to say onLawfire ® : gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
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