Law of the sea - UNCLOS - legal status of artificial islands and installations on the continental shelf - south china sea

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ASSIGNMENT: LAW OF THE SEA
LEGAL STATUS OF ARTIFICIAL ISLANDS AND
INSTALLATIONS ON THE CONTINENTAL SHELF
Submitted by:
Mohith S
2nd Semester
LLB Regular

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Introduction
The provisions relating to Continental Shelf are detailed in Part VI (Articles
76-85) of the United Nations Convention on the Law of the Sea (UNCLOS
1982).
Article 76 defines the Continental Shelf as follows:
“The continental shelf of a coastal State comprises the seabed and subsoil of
the submarine areas that extend beyond its territorial sea throughout the
natural prolongation of its land territory to the outer edge of the continental
margin, or to a distance of 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured where the outer edge of the
continental margin does not extend up to that distance”
Article 77 empowers the coastal State to exercise sovereign rights over the
continental shelf for the purpose of exploring it and exploiting its natural
resources. The rights of the Coastal State over the continental shelf do not
depend on occupation, effective, or notional, or on any express proclamation.
According to Article 78, the rights of the coastal State over the continental
shelf do not affect the legal status of the superjacent waters or of the air space
above those waters. However, the exercise of the rights of the coastal State
over the continental shelf must not infringe or result in any unjustifiable
interference with navigation and other rights and freedoms of other States.
Artificial Islands and Installations
Article 80 of the UNCLOS 1982 states that “Article 60 applies mutatis
mutandis to artificial islands, installations and structures on the continental
shelf.”
A reading of Article 60 (which forms a part of provisions of the Convention
with respect to Exclusive Economic Zone) shows that it pertains to the
exclusive right of coastal States to construct and to authorize and regulate
the construction, operation and use of:
(a) Artificial islands;
(b) Installations and structures for the purposes provided for in article 56 and
other economic purposes;
(c) Installations and structures which may interfere with the exercise of the
rights of the coastal State in the zone.
Article 121(1) defines the ‘Island’ as “An island is a naturally formed area of
land, surrounded by water, which is above water at high tide.”. Rocks which
cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.
However the Convention does not formally define ‘Artificial Islands’. Various
academicians have generally defined Artificial Islands as ‘a man-made

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structure in the territorial sea, in the EEZ or on the continental shelf which is
usually used to explore or exploit marine resources. These may also be built for
other purposes, such as marine scientific research and tide observations.’
Similarly, the description of the term ‘Offshore Installations’ can be culled
from Article 1(1) of the 1992 Convention for the Protection of the Marine
Environment of the North-East Atlantic (OSPAR), as: “Offshore Installations
means any man-made structure, plant or vessel or parts thereof, whether
floating or fixed to the sea-bed, placed within the maritime area for the purpose
of offshore activities.”
Rights of Coastal State over Artificial Islands and Installations
i. The coastal State shall have exclusive jurisdiction over such artificial
islands, installations and structures, including jurisdiction with regard
to customs, fiscal, health, safety and immigration laws and regulations.
ii. The coastal State may, where necessary, establish reasonable safety
zones around such artificial islands, installations and structures in
which it may take appropriate measures to ensure the safety both of
navigation and of the artificial islands, installations and structures.
Duties of Coastal State w.r.t. Artificial Islands and Installations
i. Due notice must be given of the construction of such artificial islands,
installations or structures, and permanent means for giving warning of
their presence must be maintained.
ii. Any installations or structures which are abandoned or disused shall
be removed to ensure safety of navigation, taking into account any
generally accepted international standards established in this regard by
the competent international organization.
iii. Such removal shall also have due regard to fishing, the protection of
the marine environment and the rights and duties of other States.
iv. Appropriate publicity shall be given to the depth, position and
dimensions of any installations or structures not entirely removed.
v. The breadth of the safety zones shall not exceed a distance of 500
metres around them, measured from each point of their outer edge,
except as authorized by generally accepted international standards or
as recommended by the competent international organization. Due
notice shall be given of the extent of safety zones.
vi. Artificial islands, installations and structures and the safety zones
around them may not be established where interference may be caused
to the use of recognized sea lanes essential to international navigation.
However, it is clearly stated in Article 60(8) that Artificial islands, installations
and structures do not possess the status of islands. They have no territorial
sea of their own, and their presence does not affect the delimitation of the
territorial sea, the exclusive economic zone or the continental shelf.

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Legal Regime of Artificial Islands and Installations on the Continental
Shelf
Coastal States have sovereign rights over the continental shelf, the national
area of the sea-bed, for exploring and exploiting it. The continental shelf can
extend at least 200 nautical miles from the shore, and more under specified
circumstances. On the High Seas, all States enjoy the freedoms of navigation,
over flight, scientific research, fishing, laying of submarine cables and
pipelines and the establishment of artificial islands and installations.
In this context, an issue to be considered is the fact that the regime that
governs the continental shelf in the UNCLOS 1982 differs from the regime
which governs the waters above the continental shelf.
In the Matter of the South China Sea Arbitration (Philippines/China), PCA Case
No. 2013-19, Award (12 July 2016), the facts were as follows:
The issue related to the lawfulness of China’s construction of an artificial
island on Mischief Reef within the Philippine EEZ. The Tribunal found that
Mischief Reef is located 125.4 nm from the archipelagic baseline of the
Philippine island of Palawan, and thus is well within and part of the Philippine
EEZ and continental shelf.
Considering the provisions of Article 80 and Article 60 of the UNCLOS 1982,
the Tribunal stated these ‘provisions speak for themselves.’ The Tribunal
explained:
“In combination, they endow the coastal State—which in this case is
necessarily the Philippines—with exclusive decision-making and regulatory
power over the construction and operation of artificial islands, and of
installations and structures covered by Article 60(1), on Mischief Reef. Within
its exclusive economic zone and continental shelf, only the Philippines, or
another authorised State, may construct or operate such artificial islands,
installations, or structures.”
The Tribunal thus concluded that “China’s violation of its obligations [is]
manifest.”

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Conclusions
• Lack of definition and lack of clear nature of artificial islands,
installations, and structures in the UNCLOS 1982 is a weakness likely
to lead to future legal complications in international disputes.
• Coastal States are entitled to build artificial islands and undertake land
reclamation on their Continental shelf even when it extends beyond 200
nm from the baseline.
• It can be inferred that the entitlement of the coastal State for
construction of artificial islands/installations on Continental Shelf
beyond 200 nm from the baseline is only connected with the exploration
and exploitation of the natural resources of the continental shelf.
• Wherever the Continental Shelf of a coastal State extends beyond 200
nm, i.e. the superjacent waters are situated in the High Seas, the
construction of Artificial Islands and Installations on the Continental
Shelf is subject to prior authorization by the relevant coastal State.
• Artificial islands do not generate similar sovereign entitlements to a
natural island and do not generate a maritime zone.
• Artificial islands may generate a limited security zone impacting upon
navigation and overflight.
• States have diplomatic, political and legal options to contest the
building of artificial islands and associated assertions of sovereignty
and jurisdiction.

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References
1. United Nations Convention on the Law of the Sea (1982) – Retrieved
from https://www.un.org/depts/los/convention_agreements/texts
/unclos/unclos_e.pdf
2. Rothwell, Donald R. - "Artificial Islands and International Law" -
Australian National University College of Law - PowerPoint
presentation; 28 July 2015
3. Galea, Francesca - Dissertation on "Artificial Islands in the Law of
the Sea" submitted to the University of Malta, May 2009
4. Roach, Ashley J. - "Artificial Islands in the South China Sea: The
Legal Regime and Implications of the Award" - Analysis; 23
December 2016
5. Grigoris, TSALTAS; Tilemachos, BOURTZIS and Gerasimos,
RODOTHEATOS - "Artificial islands and structures as a means of
safeguarding state sovereignty against sea level rise: A Law of the
Sea perspective"; University of Athens.
6. Zohourian, Mohammad Ali - "The Real Nature of Artificial Islands,
Installation and Structures from Perspective of Law of the Sea";
Xiamen University, South China Sea Institute; Asia-pacific Journal
of Law, Politics and Administration Vol. 2, No. 1 (2018), pp.13-26