Ginger Without Borders

[This blog series was originally posted on the now-defunct website of American University, Washington College of Law’s Law and International Development Society in June 2020.]

About 40% of the world’s population – roughly 2.4 billion people – live within 100km (60 miles) of a coastline. As sea levels rise, these people may lose their economic livelihoods and could be forced out of their ancestral homes. Under the provisions of the United Nations Convention of the Laws of the Sea (UNCLOS), a State may obtain maritime rights based on landmasses within the State’s maritime zones, depending on what classification the landmass falls under. As a result, some States are artificially reinforcing landmasses that are at risk of being reclassified due to sea-level rise. This practice raises a key question: is preventing reclassification of landmasses through artificial conservation legally acceptable? This article argues that, in order to maintain stability and equality in the international community, the rights based on existing island status should be maintained regardless of any artificial measures.

UNCLOS Maritime Classifications

There are three classifications of maritime rights under UNCLOS: a low-tide elevation, which is a landmass above water only at low tide; a rock, which is a landmass permanently above water but unable to sustain human habitation or economic life on its own; or an island, which is a naturally formed area of land, surrounded by water and permanently above water, that can sustain human habitation or economic life on its own. Each of these classifications creates a different set of rights for the nation. For example, a “low-tide elevation” outside of the State’s territorial sea is not entitled to a separate maritime zone; a “rock” is entitled to a territorial sea and contiguous zone but not an exclusive economy zone (EEZ); and an “island” is entitled to a territorial sea, contiguous zone, EEZ, and continental shelf rights.

A significant consequence of sea-level rise is the change in classification for many landmasses currently creating rights for States. If a landmass is reclassified, the State claiming the landmass can lose rights tied to the landmass’s existence. For example, if an island becomes uninhabitable or no longer supports an economy on its own, it would be reclassified as a rock. As a result, the State claiming the island would lose the rights associated with the “island”, which would be devastating to many coastal and island states.

How does international jurisprudence treat artificial reinforcement?

As sea levels rise, states are constructing artificial islands to strengthen their maritime claims. As a result, scholars are debating the best way to stabilize fluctuating maritime limits within the bounds of existing international law, and courts are determining what is acceptable or not. UNCLOS Article 60(8) states that artificial islands, installations, and structures are not “islands” and therefore do not have a territorial sea of their own. While UNCLOS does not expressly define “artificial islands,” the definition used by the UN Office for Ocean Affairs and the Law of the Sea is “man-made structure(s) in the territorial sea, exclusive economic zone or on the continental shelf usually for the exploration and exploitation of marine resources … and may also be built for other purposes such as marine scientific research, tide observations etc.” In the South China Sea case, wherein the Philippines challenged China’s large-scale construction of artificial installations in the Spratly Islands, the Permanent Court of Arbitration (PCA) ruled that artificial islands cannot generate maritime entitlements. 

In general, however, existing international law and State practice allows States to preserve existing maritime entitlements through construction or reinforcement of the shoreline. Therefore, artificial conservation of coastlines is considered permissible. According to the ILA Committee on International Law and Sea Level Rise, this may be the only method available for States to stabilize their coastlines. International courts provided some limits, though. In the South China Sea case, the PCA ruled that the construction undertaken by China to build upon Mischief Reef transformed what was originally a reef platform that submerged at high tide into an island, above high tide at all times. The Tribunal believed this turned the landmass into an artificial island, also stating: “[a]s a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island”, and “a low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island installation built atop it.” This means that, while a State may maintain a landmass’s classification through artificial means, the State may not use artificial means to re-classify the landmass to a higher status.

Conclusion

Considering the prevailing State practice, the conclusions of the ILA, and the jurisprudence from the PCA, rights based on existing island state should be maintained – regardless of any artificial measures – in order to maintain the stability and equality in the international community. As long as a State acts in a manner that maintains a landmass’s current status – and does not attempt to re-classify the landmass from a lower status to a higher status – the artificial conservation is permissible under international law.