The history of international maritime law has been one of conflicting views between navigating states and coastal states. Freedom of navigation championed by the former has collided with sanctity of sovereignty advocated by the latter.

These centuries-old terms again appear in the broiling dispute of the South China Sea. U.S. naval vessels have made it clear that it would not respect the buffer of 12 nautical miles of territorial seas of the newly built islands in the ocean. China responds in kind by flexing its military muscle in the region.

Under the traditional norms of international law, an island has been understood to be something to be “found,” not to be “created.” So, there are rules regarding the legal title to an uninhabited island found by an explorer dispatched by a king. There are also rules concerning how to divide maritime zones when two neighboring countries claim competing titles to an overlapping area. There is none, however, when an island is put on the map by construction, because no one thought of it, nor has any country done so previously. 

Now human efforts have reached another milestone, and islands have been proven to be something that can be constructed. As China’s “land reclamation” project is now being completed, at least for now, the legal status of artificial islands is raising many questions. Would they have 12-mile territorial seas? Can China declare an “air defense identification zone” in the aerial part of the island? If so, China can effectively exclude foreign warships and planes from the zones. The United States (and other countries) say that this would infringe upon their freedom of navigation and freedom of overflight. Both sides claim that international law is on their side.
One nautical mile is 1,852 meters, so 12 nautical miles is 22,224 meters. To the naked eye, this is roughly twice as far from the seashore as the distance to the horizon. So, this is the maritime zone where the sovereignty of a coastal state applies exclusively. As an island is regarded as a natural extension of land territory, it can also have its own territorial sea. An island in the middle of an ocean thus offers a platform to project national power to greater distances at sea. No wonder all the fuss in the South China Sea. 

Disposition of this dispute is also important as it will set a precedent for similar issues in the future. Just imagine a situation where countries all embark on their own digging and piling projects in the oceans to build islands of their own as if the oceans are up for grabs.

In any event, at least under the current legal regime, the whole question boils down to whether the island at issue is of natural creation or not. An island to be meaningful under international law (mainly the 1982 U.N. Convention on the Law of the Sea) should be naturally formed. Therefore, artificial islands are not counted as “islands” within the meaning of applicable law. As they are not “islands,” they obviously are not entitled to territorial waters. There exists no norm that prohibits one country from building an island (except for environmental concern), but such a man-made island is not able to claim a territorial sea of 12 miles.

If, on the other hand, an island is formed as a result of underwater volcanic activities today, the island thus created will be a legally meaningful island that can give a lucky state nearby 12 miles of territorial waters surrounding the island. So, the real problem is simply how to define the nature of the new island.

Satellite pictures of the past two years show the massive construction work undertaken. Having seen all of this, one would find it difficult to describe the island in any way other than “artificial.” Political sensitivities aside, then the answer to this question from the legal perspective seems to be relatively straightforward.

By Lee Jae-min

Lee Jae-min is an associate professor of law at Seoul National University. — Ed.