By Clive Schofield and Richard Schofield
Asia-Pacific Journal of Ocean Law and Policy 1 (2016) 37-67
Low-tide elevations [LTEs] and artificial islands have received less attention than islands ‘proper’. The article examines the evolution of the law of the sea applicable to such features, providing a contextual background for controversial contemporary state practice relating to their treatment. It includes a detailed case study of how the policies of one major maritime power, the United Kingdom, were formulated, adapted and refined in the face of fast-changing international legal norms and pressing regional concerns. In particular Britain’s consideration of the entitlement of artificial islands in the Persian Gulf during the early 1950s and the question of whether low-tide elevations could be occupied a few years later in the Caribbean region are examined. Subsequent clarifications of relevant positions in international law concerning sovereignty claims to and maritime claims from low-tide elevations and artificial islands are discussed.
The following is the conclusion of the paper:
VI. Concluding Considerations
As noted above, following a period of considerable uncertainty in the post-War period, the international law of the sea relating to LTEs and artificial islands evolved considerably. Thanks to these developments, reinforced by international jurisprudence, sovereignty over and maritime claims from both LTEs and artificial islands appears to be largely settled.
With regard to LTEs it now appears clear that such features cannot be appropriated. As they form parts of the seabed and subsoil of the ocean floor a State may, however, hold sovereignty over them by virtue of their location within a maritime zone over which that State does have sovereignty, that is, where an LTE falls within a coastal State’s internal or archipelagic waters or wholly or partially within its territorial sea. With regard to LTEs located wholly beyond territorial sea limits but within 200 nm of the coast, it follows that a coastal State may have sovereign rights over such an LTE through its continental shelf rights or EEZ claim. Theoretically if an LTE were to exist seawards of 200 nm limits and therefore beyond the EEZ, yet fall with an area of extended continental shelf, then the coastal State in question would hold sovereign rights over the LTE through its continental shelf rights. The authors are, however, unaware of such a circumstance existing in reality. Where an LTE exists in a maritime area subject to overlapping maritime claims, sovereignty or sovereign rights over that features would necessarily also be disputed. Further, were an LTE to be located even further offshore it would necessarily form part of the Area and be subject to Part XI of UNCLOS. With respect to claims to maritime jurisdiction from LTEs, it is also well-established that while LTEs do not generate maritime claims of their own, they can provide basepoints for the measurement of maritime zones so long as they are located wholly or partially within 12 nm of an above high-tide territory of the claimant State.
Similarly, concerning artificial islands, although such man-made features are clearly not land territory that can be appropriated, a State may nonetheless hold sovereignty over an artificial island on account of their location within a maritime zone over which that State has sovereignty. Further, the UNCLOS provisions concerning artificial islands are explicit in distinguishing these features from islands and denying them any capacity to generate maritime zones save for a narrow safety zone as well as ruling out any role for artificial islands in the delimitation of maritime boundaries.
Accordingly, the legal status of and maritime claims associated with the LTEs and artificial islands such as those recently constructed in the South China Sea, should be viewed against this well settled international legal backdrop. In particular it can be concluded that where LTEs have been, as it were, elevated or built-up as a result of these activities, the original status of the feature on which the man-made above high-tide installation is located remains unchanged. In short, LTEs cannot be ‘upgraded’ to ‘full’ insular status. The man-made structures situated on LTEs in the South China Sea are necessarily artificial islands since they are clearly not “naturally-formed” as required by Article 121(1) of UNCLOS. Consequently, these artificial islands, installations and structures fall under the scope of Article 60(8) of UNCLOS and “do not possess the status of islands”.
In closing we would suggest that arguably an analogy can be drawn between China’s recent activities in the South China Sea and Britain’s earlier practice in relation to artificial islands in the Gulf and LTEs in the Caribbean region. The latter episodes illustrate the extremes that States are willing to go to in order to assert and protect their perceived rights and interests and we submit that a comparable dynamic appears to be evident in the South China Sea context also. That said, clear differences also exist. The early to mid-1950s were a period of notable uncertainty, with international law struggling to keep up with regional resource development, the possibilities were there for the element of opportunism discernible in Britain’s consideration of policy and practice. Yet, the international law of the sea, for all that issues of interpretation and uncertainty remain, is far more settled now, especially in light of the near-universal uptake of the UNCLOS. Ultimately, Britain moderated the impulse to maximise its maritime claims, and thus access to seabed hydrocarbons, and brought its policies into line with emerging and now well-established international law of the sea norms. It is to be hoped that this bodes well for similarly questionable, if not outright excessive, contemporary practice relating to LTEs and artificial islands, whether by China or other South China Sea States or, indeed, elsewhere, to be brought into line with UNCLOS.
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Clive Schofield is a Professor and Director of Research, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong (UOW), Australia. Academic Leader of the Sustaining Coastal and Marine Zones research theme within the UOW Global Challenges Program.
Richard Schofield is a Senior Lecturer in Boundary Studies, Department of Geography, King’s College London, United Kingdom and Convenor of the MA programme in Geopolitics, Territory and Security there. Founding editor (Editor Emeritus) of the journal Geopolitics and co-founder of the London International Boundary Conference.