The South Sea Award, Artificial Islands and Territory

Imogen Saunders*

I. Introduction Although building is a centuries-old practice,1 international law has remained relatively silent on the status of artificial islands. While much remains unsettled, two things are clear from the United Nations Convention on the Law of the Sea (‘UNCLOS’): artificial islands cannot generate a territorial sea of their own;2 and cannot satisfy the ‘naturally formed’ requirement to be a ‘true’ island in the sense of art 121.3 Apart from these two strictures, there is little legal guidance to be found in UNCLOS. In the context of this near-vacuum, the UNCLOS Arbitral Tribunal in the matter of the Arbitration4 was asked to adjudicate on some of China’s island building activities in the South China Sea. There are many different ways of constructing artificial islands—from ‘floating islands’5 to artificial structures resting on the sea bed.6 However the most common construction of artificial islands, and the most pertinent to the South China Sea, are those artificial islands made by modifying existing low-tide elevations (LTEs). An LTE is ‘a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide’.7 Transformation of LTEs into artificial islands may be by way of dredging procedures to add sand or other materials to transform a

* Lecturer, The Australian National University. 1 See, eg, Bennie Buga and Veikila Vuki, ‘The People of the Artificial Island of Foueda, Lau Lagoon, Malaita, Solomon Islands: Traditional Fishing Methods, Fisheries Management and the Roles of Men and Women in Fishing.’ (2012) 22 Secretariat of the Pacific Community Women in Fisheries Information Bulletin 42; Tomoya Akimichi, ‘The Ecological Aspect of Lau (Solomon Islands) Ethnoichthyology’ (1978) 87(4) The Journal of the Polynesian Society 301, 303. 2 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) art 60(8) (‘UNCLOS’). 3 Ibid art 121. 4 South China Sea Arbitration ( v China) (Award) (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) (‘Merits Award’). 5 See, eg, Alfred H A Soons, ‘Artificial Islands and Installations in International Law’ (1974) 22 Law of the Sea Institute Occasional Paper Series 1, 1–2. 6 Such were the structures in the Duchy of Sealand and the Isola Delle Rose cases: see Samuel Pyeatt Menefee, ‘“Republics of the Reefs”: Nation-Building on the Continental Shelf and in the World’s Oceans’ (1994) 25 California Western International Law Journal 81, 105–7. 7 UNCLOS art 13.

31 32 Australian Year Book of International Law Vol 34 reef or other LTE to sit permanently above the high tide line,8 or by installation of artificial structures on the LTE which sit permanently above high tide.9 Once these artificial islands are built, a question emerges as to their status. Are these artificial structures—perhaps now quite large and intended to be permanent— territory at international law, notwithstanding the lack of accompanying territorial sea? Who owns the artificial island (if, indeed, they are capable of being owned)? In the context of the South China Sea, an answer to these questions for artificial islands necessitates some discussion of LTEs. In particular, we need to know whether LTEs themselves are territory capable of appropriation. If they are, then it would follow that any transformation of an LTE, or structure built on an LTE, would also be territory capable of appropriation. If, however, LTEs are not capable of appropriation, then if through artificial means an LTE is altered into something that is permanently above high tide (i.e. an artificial island), is this new artificial island territory capable of appropriation? Both of these questions were considered by the Arbitral Tribunal in the Merits Award, with reference to activities carried out on . As will be seen, however, the approach taken by the Tribunal does little to illuminate the status of artificial islands at international law in a general sense. II. Mischief Reef Although China has built artificial structures on many islands in the South China Sea,10 the Philippines limited their complaints regarding artificial islands to construction activity on Mischief Reef.11 Mischief Reef is ‘a large oval-shaped atoll, approximately 6.5 kilometres wide’.12 It was surveyed by the Japanese and British Navies in the 1930s for its possible military use as a flying boat base.13 Although there is evidence of Chinese use of the reef as part of China’s deep-sea fishing activities in the 1990s,14 and the installation of various multi-story buildings and wharves by 1999,15 China did not begin intensive land reclamation activities until January 2015.16 The Philippines estimated that construction activities on Mischief Reef had created over 5.5 million square metres of new land as of November 2015.17 In addition to the newly dredged land, ‘Chinese construction on the feature has added fortified seawalls, temporary loading piers, cement plants, and a 250-metre-wide

8 Such as the Republic of Minerva: see Menefee, above n 6, 96. 9 Similar to the Iedo Ocean Research Station (although this sits on a wholly submerged rock rather than an LTE). 10 Of particular relevance to this dispute are the construction activities at Fiery Cross Reef and . China’s construction activities on Fiery Cross Reef are noted in the Merits Award (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) at [565]. 11 Merits Award (UNCLOS Arbitral Tribunal, Case No 2013-19, 12 July 2016) [994]. 12 Ibid [887]. 13 Ibid [374]–[375]. 14 Ibid [376]. 15 Ibid [888]. 16 Ibid [889]. 17 Ibid [1008].