One of the ‘best’ aspects of having too many university degrees is the realization that you have spent a wild number of hours researching and writing numerous papers that never get seen by anyone except your professor. Now that I am a year out of my latest law degree, I finally have the mental capacity to revisit some of these papers. So, in an effort to ensure that the endless hours spent writing these papers were not wasted, I’ve decided to post the most relevant sections here (because if you have a blog, why not use it?)
Hopefully they are helpful to someone!
As sea levels rise, islands may be demoted to rocks, rocks may be demoted to low-tide elevations, and low-tide elevations may disappear entirely.[1] Similarly, archipelagic States may exceed the water to land ratio limit of nine to one, thus losing their archipelago status and any related maritime entitlements.[2] Food and water insecurity may also demote an island to a rock due to a forced lack of economic life or permanent human habitation.[3] Thus, to address this issue of changing terra firma status and the resulting loss in maritime entitlements, the international community has proposed artificial reinforcement as one potential solution.[4]
The Law
According to the International Law Association (ILA)’s Committee on International Law and Sea Level Rise, artificial reinforcement may be the only method available to stabilize coastlines.[5] States are allowed to conduct such artificial reinforcement through land reclamation efforts to maintain terra firma’s natural features and UNCLOS status.[6] Additionally, there is nothing in the UNCLOS regime that prevents a State from increasing its maritime entitlements by artificially increasing the size of existing terra firma.[7] However, a coastal State must provide due notice to other States when it constructs any artificial islands, installations, or structures; and when it takes any other measures affecting the safety of navigation, such as creating a safety zone around these constructions.[8] Moreover, a foreign State may not construct artificial islands, installations, or structures within another State’s exclusive economic zone without the State’s consent.[9] Lastly, artificial reinforcement can only be used to maintain terra firma’s pre-existing status under UNCLOS.[10] Thus, a State cannot transform a shoal or reef—i.e., low-tide elevations—into an island by dredging sand from the seabed to make the landmass permanently above water.[11]
The Problems
While artificial reinforcement seems like a viable solution, there are three significant issues with its widespread application. First, it is extremely costly and therefore not an option for all States. For example, Singapore is projected to spend approximately US$72 million over the next 100 years to fortify its coasts.[12] Consequently, while States may legally be allowed to reinforce the coastline of their mainland and any other relevant terra firma, the cost to do so may be prohibitively expensive. As a result, if artificial reinforcement were to be the preferred solution to sea level rise, developing States would require significant aid and assistance.
Second, where an artificially reinforced landmass is located outside of the State’s territorial sea, it is unclear whether the State would have ownership of the landmass.[13] Thus, a State cannot be certain that the artificial reinforcement of a land feature located outside of a State’s territorial waters, such as reefs that lie within the State’s exclusive economic zone, will maintain the State’s maritime entitlements under the UNCLOS regime.[14] Consequently, until the law is progressively developed through scholarly analysis of the issue or an increase in State practice, the wide spread application of artificial reinforcement is not preferable.
Third, States may abuse this right. For example, a foreign State may build an artificial installation within another State’s maritime entitlements, and then claim title to this land based on the effort exerted to build the island.[15] This is the situation that occurred on Mischief Reef, in the Spratly Islands.[16] Thus, even before artificial reinforcement has entered into widespread use, the international community is already seeing States abuse this right.
[1] When does a rock become an island? It’s a key to the South China Sea case, L.A. Times (July 12, 2016), https://www.latimes.com/world/asia/la-fg-china-tribunal-definitions-20160712-snap-story.html.
[2] Sean D. Murphy, International Law related to Islands 285 (2017). For example, Cuba maintains a ratio greater than the 9 to 1 limit, and therefore is not allowed to draw archipelagic baselines. Carlos Jiménez Piernas, Archipelagic Waters, in Max Planck Encyclopedia of Public International Law ¶ 7 (2009).
[3] For example, over the past 80 years the Solomon Islands has lost five vegetated reef islands to sea-level rise, and six other islands have experienced extreme shore recession. Albert Simon et al., Interactions between Sea-level Rise and Wave Exposure on Reef Island Dynamics in the Solomon Islands, 11 Env’t Rsch. Letters 1, 8 (2016).
[4] See David Vetter, Hong Kong land reclamation explained: the good, bad and ugly methods of pushing back the sea, S. China Morning Post (July 28, 2018, 1:01 PM), https://www.scmp.com/news/hong-kong/community/article/2156638/hong-kong-land-reclamation-explained-good-bad-and-ugly.
[5] Int’l L. Ass’n, Committee on International Law and Sea Level Rise, Minutes of the Lopud Intersessional Meeting 14 (2017).
[6] Murphy, supra note 2, at 66. For example, the international community accepted Japan’s installation of concrete around the small island of Okinotorishima, in an effort to protect it from land erosion. Yoshifumi Tanaka, The international Law of the Sea 65 (2d ed. 2015); see also Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahr.), Judgment, 2001 I.C.J. 40, ¶¶ 192, 195 (Mar. 16) (holding that the man-made alterations to the island of Qit’at Jarah did not alter its status under UNCLOS because the alterations only returned it to its natural condition). But see Liu Zhen, China criticizes Japan’s ‘selfish’ attempt to extend claim to Philippine Sea, S. China Morning Post (May 31, 2022), https://www.scmp.com/news/china/diplomacy/article/3179909/china-criticises-japans-selfish-attempt-extend-claim (explaining China’s view that Japan’s purpose in conducting the artificial reinforcement of Okinotorishima was to extend its exclusive economic zone, not to counteract the effects of climate change).
[7] Murphy, supra note 2, at 66. For example, Netherlands has artificially expanded its existing terra firma, therefore the State may claim maritime entitlements based on the new, extended baselines. Id. But see Maritime Delimitation in the Black Sea (Rom. v. Ukr.), Judgment, 2009 I.C.J. 61, ¶ 138 (Feb. 3) (disregarding the seaward end of the Sulina dyke for the purposes of basepoint calculation because it was not a permanent fixed point).
[8] United Nations Convention on the Law of the Sea arts. 60(3)-(5), (7), Dec. 10, 1982, 1833 U.N.T.S. 397; Murphy, supra note 2, at 64.
[9] UNCLOS, supra note 8, at arts. 56, 60; see S. China Sea Arb. (Republic of the Phil. v. China), PCA Case No. 2013-19, Award, ¶¶ 1031-38, 1043, 1203(B)(14) (July 12, 2016).
[10] Malcom N. Shaw, International Law 420 (8th ed. 2017); PCA Case No. 2013-19, at ¶ 508 (“Just as a low-tide elevation or area of seabed cannot be legally transformed into an island through human efforts, the Tribunal considers that a rock cannot be transformed into a fully entitled island through land reclamation. The status of a feature must be assessed on the basis of its natural condition.”).
[11] Murphy, supra note 2, at 65.
[12] Protecting Singapore from rising sea levels could cost S$100 billion, Reuters (Aug. 18, 2019, 5:00 PM), https://www.reuters.com/article/us-singapore-economy-prime-minister/protecting-singapore-from-rising-sea-levels-could-cost-s100-billion-idUSKCN1V80GU.
[13] See generally Imogen Saunders, Artificial Islands and Territory in International Law, 52 Vand. J. Transnat’l L. 643, 676-83 (2019).
[14] See, e.g., id. at 671-74 (describing the Minerva Islands, which fall within the exclusive economic zone of Fiji).
[15] See Territorial Disputes in the South China Sea, Council on Foreign Rel. (May 4, 2022), https://www.cfr.org/global-conflict-tracker/conflict/territorial-disputes-south-china-sea;
[16]S. China Sea Arb. (Republic of the Phil. v. China), PCA Case No. 2013-19, Award, ¶ 1177 (July 12, 2016) (holding that this reinforcement was against international law).
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