An “artificial island” or “offshore installation,” or “installation (offshore),” as used in UNCLOS means a human-made edifice in the territorial sea, in the EEZ, on the continental shelf, in archipelagic waters, or in ocean space governed by UNCLOS, which is usually employed to explore for or exploit marine resources. Artificial islands, offshore installations or installations (off-shore) may also be built for other purposes, such as marine scientific research, tide observations, resorts or residences, air terminals, transportation centers, traffic control, etc.
Artificial islands or other offshore installations as here defined are subject to all other jurisdictional and other limitations and requirements in UNCLOS, e.g., that artificial islands or offshore installations can possess neither territorial sea nor be considered as permanent harbor works and that coastal States are responsible under UNCLOS for environmental protections required for artificial islands.
Comment
In LOAC-governed situations under the “other rules of international law” clauses in UNCLOS, a different definition may apply. The same may be the situation if the UN Charter supersedes UNCLOS or if jus cogens norms apply.
The Consolidated Glossary does not offer a separate definition for “artificial island;” in ¶ 47, following Former Glossary ¶ 41, it defines “installation (off-shore):” “Man-made structure in the territorial sea, the exclusive economic zone or on the continental shelf usually for the exploration or exploitation of marine resources. They may also be built for other purposes such as marine scientific research, tide observations, etc.” The Committee definition substitutes “humanmade” for “man-made” for gender neutralization, and “edifice” for “structure,” which is used in UNCLOS Articles 1(1)(5), 56(1)(b)(1), 60(4)-60(8), 180, 208(1), 209(2), 214 and 246(5)(c).
UNCLOS Article 11 says that offshore installations or artificial islands are not considered permanent harbor works and may not be used as part of the baseline to measure the territorial sea’s breadth.
Articles 7(4) and 47(4) say that low-tide elevations having lighthouses or similar installations may be used as basepoints for otherwise straight baselines or archipelagic baselines. A coastal State has jurisdiction over artificial islands, installations and structures it erects within its EEZ under Article 56(1)(b)(i). However, artificial islands, installations and structures do not have the status of islands. They have no territorial sea; their presence does not affect the territorial sea, the EEZ or the continental shelf, according to Article 60(8). Article 60 also lays down rules for notice of construction or removal of artificial islands; permanent means of warning of their presence must be maintained. Safety zones, not over 500 meters, may be established. Abandoned or disused installations must be removed under generally accepted international standards. UNCLOS Articles 208(1) (standards for regulating pollution from seabed activities subject to national jurisdiction) and 246(5) (c) (standards for withholding consent for other States’ MSR) incorporate Article 60 standards by reference.
Article 60 rules apply to artificial islands erected on the continental shelf, according to Article 80; under Article 79(4), a State declaring a continental shelf may lay pipelines or cables to be used in connecting artificial islands, installations or structures under its jurisdiction. Subject to rules governing the continental shelf, UNCLOS Part VI, UNCLOS Article 87(1)(d) lists as a high seas freedom the right to construct artificial islands and other installations. Coastal States may withhold consent to another State’s or a competent international organization’s conducting a MSR project if it involves constructing, operating or using artificial islands, installations or structures in a coastal State’s EEZ or on its continental shelf, according to UNCLOS Article 246(5)(d). A coastal State must adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from or in connection with artificial islands, installations and structures in its EEZ or on its continental shelf, according to Article 208(1). UNCLOS Article 214 requires enforcing these laws and adopting laws and regulations, and taking other measures to implement applicable international rules and standards established through competent international organizations or diplomatic conferences to prevent, reduce and control marine environmental pollution from artificial islands, installations and structures under coastal States’ EEZ and continental shelf jurisdiction.
The 1958 LOS Conventions do not provide for artificial islands or similar installations except in connection with continental shelf activity. Territorial Sea Convention Article 10, anticipating UNCLOS Article 121(1), defines an island as “an area of land, surrounded by water, which in normal circumstances is permanently above [the] high-water mark.” By implication these definitions exclude artificial islands. Shelf Convention Article 5 anticipated many UNCLOS principles:
1.The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intent of open publication.
2.Subject to … paragraphs 1 and 6 …, the coastal State is entitled to construct and maintain or operate on the … shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around such installations and devices and to take in those zones measures necessary for their protection.
3.The safety zones … may extend to … 500 meters around the installations and other devices which have been erected.… Ships of all nationalities must respect these … zones.
4.Such installations and devices, though under the jurisdiction of the coastal State, do not possess the status of islands. They have no territorial sea …, and their presence does not affect the delimitation of the territorial sea of the coastal State.
5.Due notice must be given of the construction of any such installations, and permanent means for giving warning of their presence must be maintained. Any installations which are abandoned or disused must be entirely removed.
6.Neither the installations or devices, nor …zones around them, may be established where interference may be caused to the use of recognized sea lanes essential to international navigation.
7.The coastal State is obliged to undertake, in the … zones, all appropriate measures for the protection of the living resources of the sea from harmful agents.
8.The consent of the coastal State shall be obtained [for] … any research concerning the … shelf and conducted there. Nevertheless, the … State shall not normally withhold its consent if the request is submitted by a qualified institution with a view to purely scientific research into the physical or biological characteristics of the … shelf, subject to … the coastal State[’s] … [having] the right … to participate or to be represented in the research, and that in any event the results shall be published.