Ⅰ．Source of Law for Island-building
Island-building, also known as “Island Reclamation”or “Island Creation”in English, can be understood either as “to build something from nothing”, or as “to build something on the original basis”depending on the context．However, the focus of this expression is on the behavior of “building”, regardless of whether there is an “original basis”or not, at least before the United Nations Convention on the Law of the Sea (thereafter as UNCOLS) entered into force in 1982．But ever since the UNCOLS's, the difference in these understandings started to influence the legal effect．As technology develops and matures, island-building gradually expands beyond the territorial sea, where there is no direct provision in the traditional international law and consequently the practice of island-building can only be regulated by its theory and principles．Meanwhile, modern international law develops simultaneously with the nations' island-building practice, aiming at regulating its acts．Unfortunately, practices such as island-building cannot truly be integrated into international law system not only because international law of the sea, with UNCOLS as its core, was concluded as early as in 1980s, far behind the times; but also because the international legislation is filled with compromises and evasion.
A．Island-building in Traditional International Law
There is no distinct legal definition or concept of island-building, whose connotation is generally interpreted by a country's practice．In the traditional international law, it is categorized as “accretion”, as one of the approaches of state territory acquisition．Accretion refers to the physical change of the territory of a state by enlargement of and attachment to existing land, which appears as the change in the map or the boundary．The concept can be subdivided into natural accretion and artificial accretion．The former mainly includes alluvion, delta, abandoned riverbed and nascent island, and the latter, dam and land reclamation[1]．And “land reclamation”mentioned here can be regarded as the prototype of island-building．In the practice of early international law, territory accretion was primarily related to the territorial principle, jointly constructing the basis of territorial jurisdiction.
In the Anna Case[2], a British privateer captured a rival nation's ship of Spain named Anna, three nautical miles away from the estuary of the Mississippi River of the United States．When the British Prize Court prepared to hear the case, the U.S．court proposed to have the case shifted because the place of capture was located around a small mud island formed by floating mud and plants over the sea, which was within the range of three nautical miles．And the British court agreed．This case reveals that territorial accretion at that time helps to connect a case with a state and thus expands its sovereignty range．Though giving no direct explanation whether the accreted island at the estuary could be perceived as an actual part of a nation's territory, Lord Stowell, the judge of this case held that “this small mud island is a natural accretion of the neighboring coast, and also generated by the coast.”And this ruling is based on the principle of “actual effectiveness”, which means the exclusive effect of a nation's legal order can be expanded to places where such an order is firmly established, namely, in the places where the order can be effective.[3]And to the U.S., the mud island, together with the area that was three nautical miles around it, remained to be such a place, and therefore proposed the transfer of the vessel.
Oppenheim's International Law further noted that the accretion of ocean territory should include the “territorial sea”condition．“If the islands emerge in the high seas beyond the territorial sea, they do not belong to any state, and every state can acquire them through occupation．If an island is generated within the territorial sea of a state, it is accreted to the land of the coastal countries, and then the scope of the territorial sea should be measured from the coast of the newborn island.”[4]Therefore we can conclude that the ownership of the newborn island is determined by the boundary of the territorial sea, and corresponds to different approaches of acquisition．Italso points out that “if they are willing, every country can construct artificial lands across the lowest ebb line and deep into the sea to increase its land and territory, since the scope of the territorial sea is measured from the extended coast.”[5]Here it can be seen that traditional international law acquiesces in or even advocates a state's increase in territory and territorial sea by artificial accretion．That is, the island-building initiative of a state complied with the basic rules of international law at that time.
Taking into account the immature technique in island-building at that time, few states embarked on such projects though international law encouraged it by emphasizing that the “independent will”of a state was the only prerequisite for doing so．Most countries generally acquire new territories by natural accretion．And the artificial accretion practice such as man-made islands was often constructed near a nation's own coast in its offshore area．And there is no exception that such islands were located within the scope of a nation's territorial sea．One example is the Ellis Island in New York Bay of the United States．Expanded by land reclamation, Ellis Island was the location of the nation's busiest immigrant inspection station for the quarantine and inspection of the newly arrived immigrants, and the control of illegal immigrants．The other example is Kreis Dithmarschen of Germany．Such islands are all located within the scope of a nation's inner waters and gulfs, therefore they are under the regulation of that nation's law of territorial sea and within its absolute territorial jurisdiction.
According to the theory and practice of traditional international law, island-building by a state belongs to the category of accretion in territory acquisition, and is adjusted by the accretion theory and general legal principles[6]．According to the provisions of Article 38 of the Statute of the International Court of Justice, when there are no international convention and international customs related to a certain case, the general principles of law, as well as the theories of the experts in international law can also be taken as a source of international law．Moreover, traditional international law regulates the principles of island-building, while the domestic laws of each nation may adjust the rules according to the actual circumstances．Comparatively speaking, traditional international law, without “all-or-nothing”concrete legal rules on island building, adopts the general legal principles, and therefore was beneficial to the early practice．It granted legitimacy to the island-building practice of many countries, and meanwhile preserved sufficient room for domestic legislation．Thus, under the traditional international law, island-building was not only legitimate, but also a legal right of a sovereign state.
B．Island-building in Modern International Law
On the rule-making and legal effect of island-building, modern international law reflects a richer and more profound legal connotation than the traditional one．If the traditional international law was absent with corresponding legal rules, the nations would take this opportunity to exercise their freewill within the framework of their own domestic legal systems．Meanwhile, the encouragement on island-building in international law also aggravates a tendency—a fantasy that such exercise of right was without any boundary．However, with the nations' awakening and enhanced awareness of sea power, and the development in island-building techniques, the islands of artificial accretion extend beyond the original scope of offshore area and territorial sea．Up until the conclusion of UNCOLS in 1982, many rights and obligations under the international conventions evolved from the custom of international law of the sea．And the emergence of the new rules such as contiguous zone, exclusive economic zone, continental shelf, and international sea-bed area significantly changed the legal properties of a nation's island-building acts.
Firstly, modern international law changes the situation that there are only general principles but no concrete rules on island-building in tradition international law．As the cornerstone of international law of the sea, UNCOLS regulates in details the behavior of a state's island-building．Through scrutiny, many provisions in this Convention are related to “artificial islands”, stipulating the rights and obligations of a state in its island-building process.
And the primary provisions of UNCOLS are as follows:
Article 11, “Off-shore installations and artificial islands shall not be considered as permanent harbor works.”
Article 56, “1．In the exclusive economic zone, the coastal State has:……(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures”.
Article 60, “1．In the exclusive economic zone, the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands…… 2．The coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures.3．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.4．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.5．The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards.6．All ships must respect these safety zones and shall comply with generally accepted international standards regarding navigation in the vicinity of artificial islands, installations, structures and safety zones.7．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.8．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.”
Article 79, “……4．Nothing in this Part affects the right of the coastal State…… its jurisdiction over cables and pipelines constructed or used in connection with the exploration of its continental shelf or exploitation of its resources or the operations of artificial islands, installations and structures under its jurisdiction.”
Article 80, “Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf.”
Article 87, “1．Freedom of the high seas…… comprises, inter alia, both for coastal and land-locked States: (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI”.
From the above provisions on “artificial islands”, it can be concluded that: i) there is no distinct definition of this term; ii) the rights and obligations of “artificial islands”are attached to national sovereignty rather than a natural person, and therefore island-building belongs to the category of “state act”; iii) “artificial islands”can be constructed in territorial sea, contiguous zone, exclusive economic zone, continental shelf, and high seas.[7]In other words, a state can build “artificial Islands”all around the major waters of the world.
Secondly, the rules of island-building are jointly regulated by the principles of both general and special international law．Though UNCOLS stipulates the legal rules on island-building, the principles of international law have not been abandoned and preserved their restraining power over this Convention, such as the principles of good faith, prohibition of power abuse, and peaceful exploitation of the sea, which are reflected in Article 300 and 301 of the UNCOLS, respectively．For example, the principle of power abuse prohibition restrains the scope of the rights in “freedom of island-building”, requiring that “no country shall change the natural state of its territory to harm that of its neighboring countries.”[8]And this principle is also applicable to a nation's island-building acts．Island-building of one country should take the interests of its neighboring country into consideration to prevent the abuse of power granted by the Convention.
Also, in the Corfu Channel Case (UK vs．Albania, 1949)[9], the International Court of Justice (ICJ) maintained that “the passage of the British warships through the Corfu Channel is harmless both in principle and approach．In principle, Britain intends to confirm a right that is denied unjustly”．In this case, two British ships were struck by mine and damaged in the Albanian inner strait．ICJ finally concluded that the principle of innocent passage did not conflict with the principle of “no power abuse of a state's territorial rights”, except that it should be practiced without fault and with the “appropriate consideration”of the other countries' interests．Another case on this issue is Dispute regarding Navigational and Related Rights (Costa Rica v．Nicaragua, 2010)[10]．The Costa Rican government complained that “some of the dredging projects of the San Juan River by Nicaraguan authorities severely impacted the currents of Colorado River in Costa Rica, and then further damaged its territory, including some wetlands and national wildlife reserve in this area.”The subsequent interim measure issued by the ICJ well demonstrates that the freedom of a nation to change its territory cannot be exercised at the expense of the interests of its neighboring countries.
Thirdly, the interpretation of modern international law also helps to shape the legal concepts and practice of island-building．Up till now, there has been no definition of “island-building”in any document of international law．And only in Article 121 of UNCOLS is the concept of an “island”defined as “a naturally formed area of land, surrounded by water, which is above water at high tide.”And the term “building”, i.e., the approach, motivation, and other patterns and characters in artificial island construction, has not been defined.[11]However, there are two types of “building”in practice．One is a direct “island building”of a sovereign state in the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf and even the high seas．The other is the indirect “island building”of a sovereign state by expanding the existing islands or reefs in the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf and even the high seas．The similarity of the two is that they both lead to the change of a state's territory and an increase in its land area．The difference between them lies in that the location of island-building directly determines the rights the artificial island enjoys, and the approach of island-building directly influences its legal application．For example, “island-building”within a state's territorial sea can help the state expand its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baselines of the newborn island, while “island-building”within the exclusive economic zone does not enjoy such an expansion．Moreover, in accordance with international law, direct “island-building”cannot acquire new territorial sea, while the indirect way may retain and even expand a state's territorial sea.
Due to the complexity of island-building, as well as the imperfection of international law, it is difficult to characterize the applicable law．Therefore, in practice, every state inclines to interpret international law in ways that can maximize its own national interests．Articles 31, 32 and 33 of the Vienna Convention on the Law of Treaties (1969) are about the general rules of interpretation of international law, such as “interpretation in good faith”, “taking into account together with the context”, “subsequent agreement”, and “subsequent practice”．And Verdross summarized these rules as “the principle of being faithful to the original content”, “the principle of comprehensive understanding”, “the principle of effectiveness”, “the principle of rationality”, and “the principle of subsequent practice”.[12]But all these principles remain ambiguous in expounding the behavior of “building”, and thus the distinctive character of “island-building”in modern international law: the existence of normative principles and the lack of interpretative rules．It is worth noting that the only interpretative rule on territory issue in international law documents is the specific stipulation on how to interpret Article 3 of the Treaty of Lausanne in the advisory opinion the Permanent Court of International Justice (PCIJ) offered on the case regarding the border between Turkey and Iraq in September 1925．And the principle goes as “if the wording of a treaty provision is not clear, in choosing between several admissible interpretations, the one which involves the minimum of obligations for the Parties should be adopted.”[13]This principle of “minimum of obligations”, as an interpretation rule, was referred to many times in the judicial decisions of the PCIJ afterwards, and implemented in the international judicial practice．The interpretation principles of international law and its rules do not mutually exclude, but rather complement each other．And the principles established by the judicial decisions of the PCIJ also reflect a legal tendency that the legal restraints on island-building become increasingly decreasing with such a legal interpretation, and the state involved can retain its “maximum of rights”in island-building based on its “minimum of obligations”.
Throughout the development of modern international law, island-building is transformed from the application of principles to the use of rules．But international law of the sea, with the UNCOLS as its core, was signed in 1982．The practice of island-building then was insufficient to foresee the legal issues and maritime disputes afterwards, therefore the legislation failed to provide clear definitions on certain provisions, and was filled with casual legal interpretations, which not only lack a legal basis but also were prone to provoking more complicated international law disputes than ever．In addition, during its expansion, the right of a state's island-building is constrained at the same time, leading to the fierce conflicts between states in their island-building practice, such as maritime delimitation, waters jurisdiction, marine fisheries rights and so on．Apparently, island-building just changes the sea territory．In reality, from the perspective of modern internationallaw, island-building redistributes the territorial sovereignty of each state in the international community, and thus directly challenges the principle of sovereign equality.
[1] See Wang Tieya, International Law, Law Press·China, 1995, p.237.
[2] See Liang Shuying, Teaching Cases for International Law, China University of Political Science and Law Press, 1999, p.216.
[3] See Hans Kelsen, Principles of International Law, trans．by Wang Tieya, Huaxia Publishing House, 1989, p.177.
[4] Lassa Oppenheim, Oppenheim's International Law (Vol.1-2), revised by Hersch Lauterpacht, trans．by Wang Tieya, Chen Tiqiang, The Commercial Press, pp.82-83.
[5] Ibid., p.82.
[6] For example, the aforementioned principle of “actual effectiveness”on territorial issues.
[7] Article 11 is applicable to territorial sea and contiguous zone, Article 56 and 60 to exclusive economic zone, Article 79 and 80 to continental shelf, and Article 87 to high seas.
[8] Hans Kelsen, Principles of International Law, trans．by Wang Tieya, Huaxia Publishing House, 1989, p.82.
[9] ST/LEG/SER.F/1, p.7.
[10] A/68/4, p.30.
[11] UNCOLS does not define clearly the concepts of “construction”and “operation and construction”of artificial islands.
[12] See Verdross, International Law, trans．by Li Haopei, The Commercial Press, 1981, pp.213-216.
[13] Publications of the Permanent Court of International Justice, Series B.-No.12, Collection of Advisory Opinions, Treaty of Lausanne (Frontier Between Turkey and Iraq), A．W．Sijthoff's Publishing Company, 1939, p.25.