Artificial Islands and Territory in International Law

By Saunders, Imogen | Vanderbilt Journal of Transnational Law, May 2019 | Go to article overview

Artificial Islands and Territory in International Law


Saunders, Imogen, Vanderbilt Journal of Transnational Law


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. …

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