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Authors

Adam W. Kohl

Abstract

This Comment discusses the United Nations Convention on the Law of the Sea (UNCLOS) with reference to artificial island building in the South China Sea. China recently began an artificial island building campaign in the Spratly Island chain, which is located in the South China Sea. These artificial islands have been the subject of, and have created implications regarding, territorial disputes in the area.

UNCLOS governs international law in the context of disputes among states on the high seas. UNCLOS does have provisions that address artificial island construction and maintenance, but it mistakenly assumes that states will only construct artificial islands within their own exclusive economic zone (EEZ). An international arbitral tribunal established by UNCLOS determined that a state may not build an artificial island within the exclusive economic zone of another state. In this way, the tribunal interpreted UNCLOS to have a prohibitory rather than permissive effect when it comes to artificial island construction.

The tribunal’s determination in that case may have legally resolved that territorial dispute, but it does not provide clear guidance for determining the legitimacy of a state constructing an artificial island in international waters not within its own EEZ or an EEZ belonging to another state. This open question is important because several of China’s artificial islands in the South China Sea fall into that category.

This Comment recommends that UNCLOS be amended by the state parties to clarify the law of the sea with reference to artificial islands. Specifically, states should only be allowed to build artificial islands at a location that is within its own EEZ and is not located within another state’s EEZ.

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