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The Australian National University

The South China Sea Award, Artificial Islands and Territory

Imogen Saunders Vol 34 (2016)
South China Sea Agora

In the context of accelerating artificial island building in the South China Sea, the legal status of such entities remains unclear. While artificial islands are clearly not true islands in the sense of UNCLOS, what are they in international law? Could an artificial island constitute sovereign territory? The South China Sea Arbitration provided the first opportunity for an international court or tribunal to consider the status of artificial islands at international law. This article sets out the legal background to the UNCLOS Arbitral Tribunal’s award in this area, tracing the discussion of the territorial status of low-tide elevations by the International Court of Justice through to the tribunal’s consideration of the reclamation activities carried out by China at Mischief Reef. Ultimately it is argued that by maintaining a legal fiction of the natural state of Mischief Reef as a low-tide elevation for the purposes of appropriation (regardless of construction activity on it), the Arbitral Tribunal missed an opportunity to advance the understanding of the territorial status of artificial islands in international law.

Vol 34 (2016)

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Updated:  19 October 2016/Responsible Officer:  Australian Year Book of International Law Director/Page Contact:  AYBIL Web Publisher