SEA LEVEL RISE AND THE FUTURE OF SMALL ISLAND STATES:

RECONSIDERING ARTIFICIAL ISLAND AS A NEW TERRITORY

NURUL QURRATUL AINI MD ROSLAN
Faculty of Syariah and Law, Universiti Sains Islam Malaysia

ABSTRACT
Artificial islands are man-made islands constructed within the territorial sea
of the coastal states, exclusive economic zone and even on the high seas.
The right to construct an artificial island is governed by Part V of the United
Nations Convention on the Law of the Sea 1982 (UNCLOS). A practical
guideline on the construction of such islands is provided under Article 11 and
60 of the UNCLOS. In this regards, numerous states have asserted their
rights to build such islands. However, only few states exercised this right to
sustain the livelihood in order to face a possible sea level rise. It is estimated
since the late 1980, the small island states (SIS) which are facing a rising sea
level, will disappear in future. Exploring on the possibilities of artificial islands
to be used as human habitats, this article seeks to illuminate the legal
effects of the construction of artificial islands as the new territory for the SIS.
It proposes artificial islands to be recognized as a states territory to maintain
the statehood of SIS in the event of full submergence.

1. INTRODUCTION
Sea level rise continues to cause environmental disruptions which force the
islanders to leave their ancestral homes and seek refuge in other states.
Although the complete submergence of SIS due to rising sea levels has not
yet occurred, nonetheless, the possibility of its occurrence raises a significant
issue under international law. Tuvalu for instances, has been facing a rising
seas and deadly storms which threatened its existence. Its Prime Minister,
Saufatu Sapoaga told the United Nations that the global warming threat is
no different and insidious form of terrorism against Tuvaluans. 1 While the
Palestinians are facing the dead-war match between Israel, these islanders of
SIS are facing the extinction of their states due to sea level rise.
In the event of complete submergence of SIS, the island states will cease to
exist due to permanent loss of its territory and population. Thus, the element
of Statehood i.e defined territory and permanent population, under Article 1
of the 1933 Montevideo Convention on Rights and Duties of States 2 will no
longer be met. This will render the islanders to be stateless person. Even
though, the elements of statehood under the 1933 of Montevideo Convention

1 Leslie Allen. 2004. Will Tuvalu Disappear Beneath the Sea?. Smithsonian
Magazine. August.

are not strictly applied for a well-established state, nevertheless, the

German-Polish Mixed Arbitral Tribunal required a territory to have a sufficient
consistency to maintain the existence of a State. 3 International law does not
require a State to be at minimum population. 4 However, in order to establish
a State, there must be an aggregate of individuals living on the defined
territory.5 If the population continues to live outside of the territory, a State
may cease to continue to exist 6 and the SIS will cease to exist on the world
map.

2 The state as a person of international law should possess the following

qualifications: (a) a permanent population; (b) a defined territory; (c) government;
and (d) capacity to enter into relations with the other states.

3 Deutsche Continental Gas-Gesellschaft v. Polish State [1929] 5 A.D. 11. at 11.

4 Thomas M Franck & Paul L Hoffman. 1986. The Right on Self-Determination in

Very Small Places. New York University Journal of International Law and Politics at
331. See also, Jane McAdam. 2012. Climate Change, Forced Migration and
International Law. New York: Oxford University Press Inc. at 131.

5 George W. Keeton & Georg Schwarzenberger. 1951. The International Law of

Recognition, With Special Reference to Practice in Great Britain and The United
States. Australia: Cornell University Library, at 55.

6 Jane McAdam. 2012. Climate Change, Forced Migration and International Law.
New York: Oxford University Press Inc at 128.

By failure to maintain the element of defined territory, the possibility for the
SIS to lose its maritime claims, which are critical economic importance, is
high. This is due to the loss of its baseline. 7 Maritime zones are important
economical sources to the coastal states as they enjoy various sovereign
rights over the natural sources existed in that area. For Maldives, the second
largest industry, which gives a significant contribution to its Gross Domestic
Product is fisheries. Arguably, the answer for this issue is to propose the
construction of an artificial island as a new territory. The purpose of having
an artificial island is to maintain the existence of SIS, to protect the rights of
SIS on its claims to maritime zone and to prevent the islanders from being
stateless person.
2. THE CONSTRUCTION OF ARTIFICIAL ISLANDS AS A MEAN TO
MAINTAINING STATEHOOD AND MARITIME CLAIMS

2.1.

The Legal Status Of Artificial Islands

Article 121 of the UNCLOS governs the legal regime of islands. An island is
a naturally formed area of land surrounded by water which is above water
at high tide.8 However, there is no accurate definition of artificial island
provided under the UNCLOS. It only mentioned that artificial islands,

7 The United Nations Convention on the Law of the Sea. 1994. Came into force on
November 16. Article 3.

installations and structures do not possess the status of islands. 9 Thus,

scholars definition on artificial islands is required.
Parvin and Hamid define artificial islands as islands constructed by human
beings rather than formed by natural means. 10 Papadakis11 offered his
classifications on artificial islands as follows:
1) Sea city;
2) Artificial islands for economic development such as those for the
exploration and exploitation of natural resources, industrial artificial
islands, fishing artificial islands, installations to develop non-natural
resources such as salvage or archaeology and power station;

8 The United Nations Convention on the Law of the Sea. 1994. Came into force on
November 16. Article 121 (1).

9 The United Nations Convention on the Law of the Sea. 1994. Came into force on
November 16. Article 60 (8).

10 Parvin Dadandish & Hamid Rahnavard. 2013. The Artificial Islands in the Persian
Gulf: A Political and Legal Analysis. Iranian Review of Foreign Affairs. Volume 3,
No.4. p.103.

11 Parvin Dadandish & Hamid Rahnavard. 2013. The Artificial Islands in the Persian
Gulf: A Political and Legal Analysis. Iranian Review of Foreign Affairs. Volume 3,
No.4. p105.

3) Artificial installations for communications and transport such as

floating docks, warehouses and floating airports;
4) Installations for scientific research and weather broadcasting;
5) Entertainment installations; and
6) Military installations.
These classifications bring different legal effect of its installations. The
absence of specific definition of artificial islands under the UNCLOS causes
difficulties to determine the status of artificial islands. However, Papadakis
argued that for artificial islands constructed in the coastal states internal
waters and territorial sea, the state could exercise its sovereignty over the
islands.12 Further, in both the exclusive economic zone (EEZ) and
continental shelf the coastal state has exclusive jurisdiction over such
artificial islands, installations and structures, including jurisdiction with
regard to customs, fiscal, health, safety and immigration laws and
regulations.13 Even though the coastal state has jurisdiction over artificial

12 Nikos Papadakis. 1977. The International Legal regime of Artificial Isalnds. The
Netherlands: Sijthoff Publications of Ocean Developments at 78 & 151.

13 The United Nations Convention on the Law of the Sea. 1994. Came into force on
November 16. Article 60 (2). See also Michael Gagain. 2012. Climate Change, Sea
Level Rise, and Artificial Islands: Saving the Maldives Statehood and Maritime
Claims Trough the Constitution of the Oceans. Colorado Journal of International
Environmental Law and Policy. Vol.23. p 102.

islands constructed in these areas, this jurisdiction is not equivalent to

sovereignty14 as it is limited to only sovereign rights.15
2.2.

The Status of Waters Surrounding Artificial Islands and

Claims to Maritime Zones

International law has questioned so much on the status of waters
surrounding the artificial islands. The issue is whether the waters can
have the legal status of territorial sea and therefore, the State may
claims its rights to maritime zone.
If artificial islands fit the definition of islands under the UNCLOS, the
above issue is answered in affirmative. Some writers maintain that
artificial islands could have their own territorial sea. Professor Francois
opined that artificial island that is created on the elevations of the
seabed has an essential characteristic of an island, has its own
territorial sea.16 Article 121 (1) of the UNCLOS defines islands as
naturally formed. It applies to natural land formations and to individual

14 Michael Gagain. 2012. Climate Change, Sea Level Rise, and Artificial Islands:
Saving the Maldives Statehood and Maritime Claims Trough the Constitution of the
Oceans. Colorado Journal of International Environmental Law and Policy. Vol.23. p
102. See also George V. Galdorisi & Alan G. Kaufman. Military Activities in the
Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict. California
Western International Journal. Vol.32. p.278.

15Raul Pedrozo. 2012. Preserving Navigational Rights and Freedoms: The Right to
Conduct Military Activities in Chinas Exclusive Economic Zone. Chinese Journal of
International Law. p.11.

islands and not to archipelagos.17 However, artificial islands would not

satisfy the naturally formed element of the definition of islands as they
are formed not due to the forces of nature but rather man-made.18
The word naturally formed under the UNCLOS was proposed by the
United States of America.19 It eliminates the possibility of applying this
definition to artificial islands. However, the Second Committee
observed that the definition of island did not exclude artificial islands
provided these islands are true portions of the territory and not merely
floating

works

or

anchored

buoys.20

The

Hague

Codification

Conference somehow failed to adopt a comprehensive convention,

16 This opinion is given at the time special rapporteur on the law of the sea of
International Law Commission and expert at the conference on the Law of the Sea
at Geneva in 1958. See Alfred H. A. Soons. 1974. Artificial Islands and Installations
in International Law. Occasional Paper Series. Law of the Sea Institute University of
Rhode Islands. p. 17.

17 The United Nations Convention on the Law of the Sea. 1994. Came into force on
November 16. Article 45.

18 Mom Ravin. 2005. Law Of The Sea: Maritime Boundaries And Dispute Settlement
Mechanism. United Nations: the Nippon Foundation. p.23.

19 The text was amended at the 53rd meeting of the First Committee on the Law of
the Sea and was adopted by a vote of 37 to 6 with 14 absentees.

thus, the status of artificial islands remained ambiguous.21 As a result

of severe limitations, artificial islands are only allowed to generate the
territorial sea in the case it was partially constructed within the
territorial sea.22
In sum, there are conflicting views regarding to the delimitation of
territorial sea and claims to maritime zones based on the definitions
given by the prominent writers and the Law of the Sea Conference.
Thus, for the purpose of this research, it is safe to conclude that the
artificial islands will have the rights as natural islands if the islands are
formed partially on the natural land formations and accelerated by
means of works.

20 Commentaries on Law of the Sea Convention. Report of the Second Committee.

1930.

21 League of Nations Document C230M. 117 (1930), quoted in Michael Gagain.

2012. Climate Change, Sea Level Rise, and Artificial Islands: Saving the Maldives
Statehood and Maritime Claims Trough the Constitution of the Oceans. Colorado
Journal of International Environmental Law and Policy. Vol.23. p. 103.

22 It was based on the definition given by Gidel where he assimilated the natural
islands and artificial islands which were formed by the action of natural phenomena
and accelerated by means of works.

2.3.

Expanding the Definition of Islands to Include the Legal

Status of Artificial Islands for Maintaining Maritime Claims and

Statehood.
Most of international legal writers proposed to expand the definition of
islands under the UNCLOS to include the legal status of artificial
islands to replace the lost territory of an inundated island States.
During the 260th International Law Commission Meeting, Faris Bey ElKhouri from Syria opined that artificial islands have no doubt been
useful for various purposes and government is encouraged to
construct such islands.23
If artificial islands are seemed relevant to maintain the safeguard of
island States, where should these islands be built? As mentioned
earlier, Papadakis commented that the coastal States still enjoy their
sovereignty over artificial islands if they are constructed in their
territorial sea and internal waters.24 For archipelagic states, those
States may claim their sovereignty over their archipelagic waters as
well. Island States could not claim their sovereignty if the islands are
constructed in the high seas. In the high seas, the coastal States

23 Summary Record of the 260th Meeting. 1954. Yearbook of International Law

Commission Volume 1 at 90 &94.

24 Nikos Papadakis. 1977. The International Legal regime of Artificial Isalnds. The
Netherlands: Sijthoff Publications of Ocean Developments at 78 & 151.

jurisdiction only amounted to functional jurisdiction which limits other

rights of sovereign States. Dubner and Gagain contended that limiting
the construction of artificial islands to within its territorial sea only is
crucial because the farther the islands are constructed the more
weakened it becomes.25 This is due to the structure of the islands
themselves which require strong basis to face inundation.
Another issue needs to be considered is, before constructing artificial
islands, island States must ensure that the choice of location would
not infringe the rights of other States under the UNCLOS. The
construction of artificial islands must not cause any environmental
harm to marine environment.26 This issue was highlighted before the

25 Michael Gagain. 2012. Climate Change, Sea Level Rise, and Artificial Islands:
Saving the Maldives Statehood and Maritime Claims Trough the Constitution of the
Oceans. Colorado Journal of International Environmental Law and Policy. Vol.23.
p.109. See also Dr. Barry Hart Dubner. 1995. The Spratly Rocks Dispute: A
Rockapelago Defies Normsof International Law. Temporary International &
Comparative Law Journal. p. 291 & 296.

26 The regulations and procedures to protect marine environment is provided

under Article 145 of the UNCLOS: Necessary measures shall be taken in
accordance with this Convention with respect to activities in the Area to ensure
effective protection for the marine environment from harmful effects which may
arise from such activities. To this end the Authority shall adopt appropriate rules,
regulations and procedures for inter alia:
(a) the prevention, reduction and control of pollution and other hazards to the marine
environment, including the coastline, and of interference with the ecological balance
of the marine environment,
particular attention being paid to the need for protection from harmful effects of such
activities as drilling, dredging, excavation, disposal of waste, construction and
operation or maintenance of installations, pipelines and other devices related to such
activities;

International Tribunal on Law of the Sea when Malaysia claimed that

Singaporess land reclamation activities in the Strait of Johor were
impacting Malaysias rights to waters within its jurisdiction, including
the rights to the natural resources within its territorial sea and its
rights to the marine environment in affected area.27

3. CONCLUSION
Expanding the legal status of islands to include artificial islands to be
recognized as part of States territory seems impractical and impossible.
This is due to the fact that it involves the consensus of the international
community to give effects on its status to be part of States territory. One
could argue that if the definition of islands under the UNCLOS includes

(b) the protection and conservation of the natural resources of the Area and the
prevention of damage to the flora and fauna of the marine environment.

27 Land Reclamation Activities (Malaysia v Singapore). Case No.12, Order of

October 8, 2003. International Tribunal on Law of The Sea.

artificial islands, it will open the floodgate to other States to expand their
territory. However, this is not the actual situation. The rigidness of Article
121 (1) of the UNCLOS may be amended, provided that artificial islands
are considered as islands if they are constructed for the purpose of human
habitats to safeguard the future of islanders from full submergence. The
proposal to expand the definition of islands is among others to give
effects to existed artificial islands as constructed by the Maldives. The
Hulhumale artificial islands constructed by the Maldives costs roughly
US$63 million. It is costly, indeed. However, this might be better,
spending and investing the money in an artificial land reclamation
program to keep its nationals in existing State.
The sea level rise is not a matter of State per se, but it is an international
legal crisis. The construction of artificial islands is the best solution to be
advocated by the SIS. Otherwise, the possibility of losing statehood and
maritime claims due to sea level rise continue to exist.

REFERENCES

Deutsche Continental Gas-Gesellschaft v. Polish State [1929] 5 A.D

Dr. Barry Hart Dubner. 1995. The Spratly Rocks Dispute: A Rockapelago
Defies Normsof International Law. Temporary International & Comparative
Law Journal.
George V. Galdorisi & Alan G. Kaufman. Military Activities in the Exclusive
Economic Zone: Preventing Uncertainty and Defusing Conflict. California
Western International Journal. Vol.32
George W. Keeton & Georg Schwarzenberger. 1951. The International Law of
Recognition, With Special Reference to Practice in Great Britain and The
United States. Australia: Cornell University Library
Jane McAdam. 2012. Climate Change, Forced Migration and International
Law. New York: Oxford University Press Incorporation.
Land Reclamation Activities (Malaysia v Singapore). Case No.12, Order of
October 8, 2003. International Tribunal on Law of The Sea.
League of Nations Document C230M. 117 (1930)
Leslie Allen. 2004. Will Tuvalu Disappear Beneath the Sea?. Smithsonian
Magazine
Michael Gagain. 2012. Climate Change, Sea Level Rise, and Artificial
Islands: Saving the Maldives Statehood and Maritime Claims Trough the
Constitution of the Oceans. Colorado Journal of International Environmental
Law and Policy. Vol.23
Mom Ravin. 2005. Law Of The Sea: Maritime Boundaries And Dispute
Settlement Mechanism. United Nations: the Nippon Foundation
Nikos Papadakis. 1977. The International Legal regime of Artificial Isalnds.
The Netherlands: Sijthoff Publications of Ocean Developments
Parvin Dadandish & Hamid Rahnavard. 2013. The Artificial Islands in the
Persian Gulf: A Political and Legal Analysis. Iranian Review of Foreign Affairs.
Volume 3, No.4
Raul Pedrozo. 2012. Preserving Navigational Rights and Freedoms: The
Right to Conduct Military Activities in Chinas Exclusive Economic Zone.
Chinese Journal of International Law

Summary Record of the 260th Meeting. 1954. Yearbook of International Law

Commission Volume 1
The United Nations Convention on the Law of the Sea. 1994. Came into force
on November 16
Thomas M Franck & Paul L Hoffman. 1986. The Right on Self-Determination
in Very Small Places. New York University Journal of International Law and
Politics.