Artificial Islands and Territory in International Law.

• Author: Saunders, Imogen

TABLE OF CONTENTS I. INTRODUCTION 644 II. ARTIFICIAL ISLANDS AND THE CONVENTION ON THE LAW OF THE SEA 647 A. Islands and Artificial Islands 647 B. Artificial Islands and Installations 648 C. Limitations and Jurisdiction 649 III. TERRITORY AT INTERNATIONAL LAW 652 A. Naturally Formed: A Portion of the Earth's Surface 654 B. Conceptual Stability 656 C. Physical Stability 657 D. Criteria of Territory 659 IV. TITLE TO TERRITORY 659 A. Naturally Formed: A Portion of the Earth's 660 Surface B. Capable of Appropriation 661 1. Qatar v. Bahrain 662 2. South China Sea Arbitration 664 V. STATE PRACTICE 666 A. Historic State Practice 667 1. Insulo de la Rozoj 667 2. The Duchy of Sealand 668 3. Grand and Triumph Reefs 670 4. Republic of Minerva 671 B. Contemporary State Practice: Artificial Islands 674 VI. ARE ARTIFICIAL ISLANDS TERRITORY? 676 A. Natural State Revisited 676 B. Acquisition of Title to Territory of Artificial Islands 678 VII. REPERCUSSIONS 681 VIII. CONCLUSION 683 I. INTRODUCTION

The Pentagon estimates that since early 2014, China has reclaimed over 3,200 acres of land in the Spratly Islands archipelago to build new artificial structures around existing maritime features. (1) The Pentagon asserts that these actions "do not provide China with any additional territorial or maritime rights within the South China Sea." (2) This is, however, not self-evident. It is clear that the United Nations Convention on the Law of the Sea (3) (UNCLOS or the Convention) restricts artificial islands from generating their own territorial sea or other maritime rights, save a five-hundred-meter safety zone. (4) UNCLOS however does not cover issues of territory. The question for this Article is whether certain artificial islands could be considered sovereign territory at international law (albeit territory that generates no territorial sea or extended maritime zones).

Artificial island building is not limited to China, of course. (5) It has been suggested as a solution to the climate change-driven concerns of small island nations. (6) It has long been the vanguard of adventurers seeking to create their own new states in the international community. (7) Historic evidence shows people have engaged in artificial island building for centuries. (8) Many of these artificial islands are still occupied, such as those in the Lau Lagoon in the Solomon Islands. (9) However, the recent large-scale island building in the South China Sea has opened, in the words of Jean Gottmann, a new realm of "[a]ccessible [s]pace." (10) As Gottmann explained in 1952:

Accessibility is the determining factor: areas to which men have no access do not have any political standing or problems. The sovereignty of the moon has no importance whatsoever today, because men cannot reach it nor obtain anything from it. The Antarctic had no political standing before navigators began going there, but since it was made accessible by its discoverers, the icy continent has been divided into portions like an apple pie.... (11)

International law has similarly viewed the territorial status of artificial islands as unimportant. As long as artificial islands were merely theoretical, or small-scale, one-off creations of ambitious individuals, the value in determining their territorial status was low. Now however, such islands are technologically accessible, and the scale is dramatically different: some artificial islands are larger than populated naturally formed islands. (12) As was the case with Antarctica, and indeed, the moon after it, technology has made artificial island building a modern reality that is causing international debates, tensions, and flashpoints. But what status do these artificial islands have at international law?

In 1977, Nikos Papadakis argued that artificial islands were de lege ferenda and would be best dealt with by a new international convention to determine their status in international law. (13) Over forty years later, while artificial island building has accelerated, no such convention has been forthcoming. This Article cannot provide a comprehensive legal regime covering artificial islands. Rather, in terms of their legal status, it seeks to answer one question: are artificial islands capable of comprising territory at international law? The answer to this question is not a mere technicality of language or nomenclature, but one that has important ramifications in how and when artificial islands can be built, used, and claimed by states, as well as how international law doctrines interact with such islands. (14)

In asking this question, consider Malcolm Shaw's work on title to territory. Shaw linked the evolution of the concept of "territory" in international law to both the needs of people and the reality of historical developments. (15) These same factors are present with respect to artificial islands: the changing needs of people in the face of climate change, the technological advances that have made large-scale land reclamation feasible, and the contemporary reality of island building taken all together mean the concept of territory must be reassessed.

Thus, although this Article will analyze traditional doctrines of territory and title to territory, it will also argue for an evolutionary approach to these doctrines, insofar as they must be considered and applied in light of the reality of modern large-scale artificial island building. Indeed, such an evolutionary approach is entirely consistent with historical development of the law regarding sovereignty, territory, and maritime features: for example, sovereign rights were only asserted over the continental shelf after technological developments made retrieving resources viable. (16) As new areas become accessible, we must consider how the law applies to them.

This Article will do so by first setting out how the UNCLOS regime applies to artificial islands in Part II. It will then consider existing conceptions of territory in Part III, and title to territory in Part IV and assess how these theories might apply to artificial islands. In Part V, the Article will turn to considering existing state practice on artificial islands and territory. In Part VI, the Article will argue that artificial islands can constitute territory, and consider how title to territory will flow in different maritime zones. Finally, Part VII will address the repercussions of this argument using the principal of unlawful territorial situations.

2. ARTIFICIAL ISLANDS AND THE CONVENTION ON THE LAW OF THE SEA

   There is no question that UNCLOS contains a binding regime for the law of the sea, including maritime zones and the status of islands, and that its substantive provisions are reflected in customary international law. This Article does not seek to disrupt or reject this regime. However, UNCLOS also contains silences: the juridical status, and in particular the territorial status, of artificial islands is one such silence. It is this silence that this Article is attempting to fill.

   UNCLOS does make two distinctions in regards to artificial islands: first, between islands and artificial islands, and second, between artificial islands and installations. UNCLOS also places certain limitations on artificial islands. This Part will consider these two distinctions and the limitations in turn, concluding that these provisions cannot answer the question of whether artificial islands can constitute territory in international law.

   A. Islands and Artificial Islands

   It is clear from the text of UNCLOS that artificial islands are not assimilated to islands under the law of the sea: (17) while the term "artificial island" is not defined within the Convention, an "island" is "a naturally formed area of land, surrounded by water, which is above water at high tide." (18) It should be noted there is ambiguity around where the line between natural formation and artificial intervention precisely sits (as in, for example, an artificial structure that alters natural accretion patterns to cause sand to be deposited where it would not otherwise be). (19) This Article will focus on those artificial islands that are unambiguously artificial, and truly outside the regime of Article 121 of UNCLOS.

   This includes artificial islands built by reclamation or other processes around/on existing maritime features, particularly those built around low-tide elevations (LTEs). This Article accepts the argument made by Phillipe Sands in submissions before the arbitral tribunal in the South China Sea arbitration: "A low-tide elevation cannot become a 'rock' or an 'island' merely because it has been subject to some degree of human manipulation. Equally, a 'rock' cannot be upgraded to an 'island' by human intervention." (20) Human manipulation around such features can, however, transform them into artificial islands. (21)

   B. Artificial Islands and Installations

   The text of UNCLOS draws a distinction between artificial islands and installations, (22) although neither term is defined in the Convention. (23) Guidance as to the differences between artificial islands and installations can be gained from commentary. Alfred Soons, writing in the context of the pre-UNCLOS emerging Law of the Sea, described four types of offshore facilities: "floating structures, kept at the same position by anchors or other means"; (24) "fixed structures, resting upon the seafloor by means of piles or tubes driven into the bottom"; (25) "[c]oncrete structures"; (26) and fourthly, "structures which have been created by the dumping of natural substances like sand, rocks and gravel ... [or the] so-called artificial islands." (27)

   There is a clear and obvious delineation between, on one hand, those types of structures made from a non-natural material that are either not attached to the sea bed or attached through artificial means, and, on the other hand, those features created by reclamation processes around an already existing feature, such as a submerged reef or low-tide...