Artificial Islands, Installations and Related Activities by Non-State Actors

ICLOS Conference 2018, 21-22 Nov, 2018, Bandung UNCLOS & ARTIFICIAL ISLANDS BEYOND NATIONAL JURISDICTION Session II – Theoretical and Legal Developments of Artificial Islands Youna Lyons, Centre for International Law, National University of Singapore Outline

Introduction - Definitions Part 1 – Existing and Prospective Activities from artificial islands and installations in ABNJ Part 2 – Key Features of the International Legal Framework Part 3 – Gaps and Challenges Part 4 – Possible paths forward Introduction

Definitions . Artificial island = man-made, not naturally formed and therefore not an ‘island’ which can generate maritime zones . Difference between offshore installations, structures and artificial islands? . Distinction may be theoretical as the High Seas freedom of UNCLOS art 87(1)(d) applies to the construction of artificial islands and other installations permitted under international law . No definition and no indication of the activity which may be carried out from this installation other than it would be permitted under international law . Human settlement, fisheries/aquaculture, energy production, geo-engineering, scientific research, etc… 1/3 Introduction Definitions . Immovable or also movable? An ongoing debate. Islands may be seen as immovable by nature whereas installations can also be immovable . Permanent or temporary? . Fixed or floating or drifting and non- propelled?

Floating instrument platform (FLIP) - A RV operated by Scripps Institution of Oceanography which can operate in https://ttalents.com/futuristic-floating-city/ vertical and horizontal positions 2/3 Introduction

Definitions . Above water or also in the water column?

. ABNJ= In the High Seas or in the Area . Excludes mining (ECS or Area) 3/3 Part 1 – Existing and prospective activities

Human Settlements

Solution for rising pacific sea levels (ourworld.unu.edu) Vincent Callebaut Architectures – www.vincentcallebaut.org https://ourworld.unu.edu/en/artificial-island-could-be-solution-for-rising-pacific-sea-levels 1/14 Part 1 – Existing and prospective activities

Human Settlements And Mixed Uses

https://www.scidev.net/asia- pacific/engineering/news/artificial-islands-offer-an-option-to- low-lying-states.html

https://bbih.nl/blog/the- artificial-islands-of-dubai/ 2/14 Part 1 – Existing and prospective activities

Human Settlements and Mixed Uses

3/14 Part 1 – Existing and prospective activities

. X Part 1 – Existing and prospective activities

Hotel Projects

5/14 Part 1 – Existing and prospective activities Economic uses

Dogger Bank in the North Sea - https://www.bbc.com/news/uk-england-humber-42552319 Dutch Energy Company Tennet is considering possibilities ‘far out at sea’ to meet future wind energy needs 6/14 Part 1 – Existing and prospective activities Economic uses - Energy

Transportable Nuclear Power Plants (TNPP)

A new type of FPSO and FSUs

6/14 Part 1 – Existing and prospective activities

Aquaculture Activities

Or a large kelong?

7/14 Part 1 – Existing and prospective activities

Aquaculture

Ocean Farm 1- https://www.fishfarmingexpert.com/article/salm ar-buys-into-plan-for-huge-high-seas-salmon- farm/

Projected SalMar Farm (can hold 12,000t of fish) https://www.fishfarmingexpert.c om/article/salmar-buys-into- plan-for-huge-high-seas-salmon- farm/ 160m in diameter and semi- submersible 8/14 Part 1 – Existing and prospective activities

Aquaculture and ocean farming activities, including re-stocking

9/14 Part 1 – Existing and prospective activities

Geo-engineering applications

. Ice911 . Considers that the melting of Arctic sea ice contributes 1/3 of the increase in temperature . Pilot installation on a surface of 3 football fields of sea ice . Proposes to use silicate (reflective sand) to restore the Arctic sea ice 10/14 Part 1 – Existing and prospective activities

Open Ocean Clean-up

1-2km long

X 50 to 60 floating arrays in each ocean gyre 11/14 Part 1 – Existing and prospective activities

Marine Scientific Research . X

http://www.goosocean.org/index.php?option=com_content&view=article&id =45&Itemid=145 12/14 Part 1 – Existing and prospective activities

Marine Scientific Research

http://www.goosocean.org/index.php?option=com_content&view=article&id =45&Itemid=145 13/14 Part 1 – Existing and prospective activities

Global distribution of large seamounts

https://www.sciencelearn.org.nz/images/1552-global-distribution-of-large-seamounts 14/14 Part 1 – Existing and prospective activities

Global distribution of large seamounts

14/14 Youna Lyons Spratlys’ Geographic Features – Maritime Zones based on the 12 July 2016 Arbitral Award Centre for International Law 9 January 2017

Flat Island Amy Douglas Bank Lys Shoal and Trident Shoal Reed Tablemount Marie Louise Reef North Reef North Reef North Danger Reef Nares Bank Pennsylvania North Reef Eastern Reefs South Reef Meiju Reefs Lamkiam Cay Brown, Leslie, Templer Eldad Reef Loaita Cay and Thitu Island West York Island Thitu Reefs and Wood Banks Gaven Reefs Loaita Nan Sandy Cay Hopkins Reef Itu Aba Seahorse Shoal Namyit Island Kugui Reefs Irving Reef Petley Reef Menzies Reef Loaita Bank Iroquois and Sin Cowe Island Baker Reefs Bamford Reef Sand Cay Hopps Reef Jackson Atoll Foulerton Reef Zhongzhou Reef Pennsylvania South Collins Reef Southern Bank Edmond Reef Livock Reef Reef Empire Reef Discovery Great Reef Hardy Reef Sao Bank Gent Reef Discovery Small Reef Grierson Reef Sabina Shoal Hallet Reef Union Reefs Higgens Reef Boxall Reef Holiday Reef Alicia Annie Reef Bombay Shoal Maralie Reef First Thomas Shoal Investigator Northeast Shoal Jones Reef Loveless Reef Pearson Reef McKennan Reef Central Reef Pigeon Reef Royal Captain Shoal West Reef Alison Reef Ross Reef Half Moon Shoal Sin Cowe Island East Reef Ladd Reef Tetley Reef Cornwallis South Reef Unnamed Reef 1 Whitsun Reef Barque Canada Reef Deane Reef Prince of Wales Bank Commodore Reef Dickinson Reef Erica Reef Hampson Reef Hoare Reef Prince Consort Bank Alexandra Bank Investigator Shoal Mariveles Reef Petch Reef

Ardasier Reef Ardasier Bank Grainger Bank Dallas Reef Rifleman Bank Vanguard Bank Bombay Reef Erjiao Reef Legend Kingston Shoal Langkou Reef Johnson Patches Royal Charlotte Reef Xiantou Reef 12 NM arc around confirmed Orleana Shoal High Tide Features in Award 12 NM arc around likely High Tide Features 12 NM arc around possible Louisa Reef High Tide Features High Sea North Extended continental shelf (claimed) Seahorse Breakers Continental shelf or extended Hayes Reef continental shelf boundary Herald Reef Luconia Breakers (claimed) Comus Shoal Stigant Reef South Luconia Shoals EEZ boundary (disputed) Brunei Darussalam Part 2 – Key Features of the International Legal Framework Freedoms of the High Seas … . Freedom of construction of artificial islands and other installations is one of the 6 Freedoms of the High Seas (UNCLOS art 87) . High Seas Freedoms are held by States, not by individuals . Underlying assumption that individuals and private entities may benefit from these freedoms under the authorisation of a State . Activities in ABNJ are now often handled by private entities . Whereas States are party to international organisations and mechanisms for State cooperation, private entities are not always 1/2 Part 2 – Key Features of the International Legal Framework Freedoms of the High Seas … are subject to obligations of due regard for other activities and obligation to protect and preserve the marine environment . Exercise of due regard by the State / Can the private entity do it? How? . Due to regard to other legitimate uses of the sea including other freedoms: shipping, fisheries, mining, research, etc. . Obligation of the State to ensure that activities under its jurisdiction and control do not cause substantial pollution of or significant and harmful changes to the marine environment (UNCLOS Art 194(2) . Protection of rare or fragile ecosystems, habitats of endangered species (UNCLOS Art 194(5)) 2/2 Part 3 – Gaps and Challenges

State Responsibility to exercise jurisdiction and control

. State with jurisdiction and control . The flag State(s) of the vessel(s) that may have deployed some of the activity . The flag State(s) of the vessel(s) that have been servicing the activity? . The States of nationals involved in the operation? . The State in which private entities involved are incorporated?

1/4 Part 3 – Gaps and Challenges

State Responsibility to exercise jurisdiction and control and the obligation to act with ‘due diligence’ to protect and preserve the marine environment . ‘Obligation to ensure’ that activities are so conducted as to not cause damage to the marine environment is an obligation of due diligence - An obligation ‘to deploy adequate means to exercise best possible efforts, to do the utmost to obtain this result’ . ‘Due diligence’ is a ‘variable concept’ that ‘may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge’

2/4 Part 3 – Gaps and Challenges

State Responsibility to exercise jurisdiction and control and the obligation to act with ‘due diligence’ to protect and preserve the marine environment . It includes an obligation to adopt all the appropriate and necessary domestic measures as well as . As well as a ‘certain level of vigilance in their enforcement and the exercise of administrative control’ to ensure compliance by nationals and vessels flying its flag . Application in Pulp Mills Case, two advisory opinions and SCS Arbitration Case . Duty to cooperate is a ‘fundamental principle of Part XII that the Tribunal may consider appropriate to preserve’ (MOX Plant Case) 3/4 Part 3 – Gaps and Challenges

EIAs . Obligation to carry out an EIA, monitor activity and publish the results (UNCLOS Art 204-206) . This should include impact on fragile ecosystems and habitats of threatened and endangered species . Which is the State with jurisdiction and control? . The flag State(s) of the vessel(s) that may have deployed some of the activity . The flag State(s) of the vessel(s) that have been servicing the activity? . The States of nationals involved in the operation? . The State in which private entities involved are incorporated? 4/ Monitoring and Environmental Impact Assessments (EIAs)

Art 204- Monitoring of the Risks or Effects of Pollution 1. States shall, consistent with the rights of other States, endeavour, as far as practicable, directly or through the competent international organizations, to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment. 2. In particular, States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment. Monitoring and Environmental Impact Assessments (EIAs)

Art 205- Publication of Reports . States shall publish reports of the results obtained pursuant to article 204

or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States. Monitoring and Environmental Impact Assessments (EIAs)

Art 206- Assessment of Potential Effects of Planned Activities . When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205. Part 4 – Possible Paths Forward

. International Law (including UNCLOS) provides a strong legal framework for the construction and operation of artificial islands and installations in ABNJ . But mechanisms are lacking at global level for publication of EIAs and monitoring results by private actors . At regional level, some regional seas have mechanisms but not Southeast Asia, especially not the SCS . In the context of SEA, exploring mechanims to strenghten the role of regional bodies in performing this role may be useful, including joint-research, data standardisation and sharing

Thank You

Questions?

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