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 Vietnam Amy Douglas Bank Lys Shoal and Trident Shoal Reed Tablemount Marie Louise Reef North Reef North Reef Northeast Cay North Danger Reef Nares Bank Pennsylvania North Reef Eastern Reefs South Reef Meiju Reefs Southwest Cay 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 Loaita Island Subi Reef Hopkins Reef Itu Aba Seahorse Shoal Namyit Island Kugui Reefs Irving Reef Nanshan Island Petley Reef Menzies Reef Loaita Bank Iroquois and Sin Cowe Island Baker Reefs Bamford Reef Sand Cay Tizard Bank Hopps Reef Jackson Atoll Foulerton Reef Zhongzhou Reef Pennsylvania South Collins Reef Western Reef Southern Bank Edmond Reef Livock Reef Reef Empire Reef Discovery Great Reef Hardy Reef Sao Bank Gent Reef Discovery Small Reef Grierson Reef Mischief Reef Sabina Shoal Hallet Reef Union Reefs Higgens Reef Fiery Cross Reef Second Thomas Shoal Boxall Reef Holiday Reef Alicia Annie Reef Bombay Shoal Hughes Reef Johnson South Reef 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 Cuarteron Reef Alison Reef Ross Reef Half Moon Shoal Philippines Sin Cowe Island East Reef Ladd Reef Tetley Reef Cornwallis South Reef Unnamed Reef 1 Spratly Island 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 Amboyna Cay Investigator Shoal Mariveles Reef Petch Reef Ardasier Reef Ardasier Bank Grainger Bank Dallas Reef Rifleman Bank Vanguard Bank Swallow Reef 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 Luconia Shoals Extended continental shelf (claimed) Seahorse Breakers Continental shelf or extended Hayes Reef Malaysia 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