By Bahman Aghai Diba, PhD International Law of the Sea

Abstract

Artificial islands are growing in the Persian Gulf. The small states of the Persian Gulf are trying to increase their hold in the maritime areas and open new territories to their business endeavors.  At the same time, the emergence of new artificial islands and the bold plans to make extensive artificial islands, using the latest available technologies, have opened the way to many new legal questions in the context of the international law and especially the obligations of states for protection of the environment, the commitments of states to their adjacent areas, and the implications of deteriorating ecosystems.  The littoral states of the Persian Gulf have to know the legal regime of these Islands, and their obligations towards other states in an "enclosed or semi-enclosed" body of water, such as the Persian Gulf. These points can get new dimensions noting the existing trends for interpretation of international pollution as a form of aggression.

Keywords

Artificial Islands, Persian Gulf, Law of the Seas, Environment protection, state responsibility, Islamic law 

Persian Gulf is famous for oil, energy security and its geopolitics importance. However, the wealthy states of the Persian Gulf, especially the smaller states of the region, are adding another point of international attention to the existing ones: Artificial Islands. This is a growing feature in the region and noting the extent of various projects of the littoral states for establishment of the artificial islands it is going to become more important in future. The artificial islands are appearing one after another in the Persian Gulf.  Some of the states in the Persian Gulf area are planning to expand their territories by establishing cluster of artificial islands.  What we intend to do here is to explore:

1. What are the legal implications of the artificial islands in various maritime areas of the Persian Gulf?

2. What are the extents of the responsibility of the "flag sate" to the other states in a semi enclosed sea?

3. What are the environmental impacts of the artificial islands in the Persian Gulf and who is responsible for the damages?

Dubai is a forerunner in this field and many other small and at the same time rich states in the Persian Gulf may start going in the same direction. Iran has plans for establishment of artificial islands.[1] But the artificial islands of Kuwait, Oman, Qatar, and Bahrain are more important.

Although the issue of establishment of the artificial Islands has a longer history than the recent activities of Dubai (and a few other Emiratis inside the UAE, especially Sharejeh), the extent of the projects undertaken by Dubai[2] has opened the way for serious questions in a sensitive area. In the case of environmental pollution, there is a possibility of interpreting or trying to interpret the pollution as a form of international crime or even "aggression".[3]

This has given rise to many legal questions such as the definition of the artificial Islands, legal status of the artificial islands in the maritime  territories, the effects of the artificial Islands on the responsibilities of the coastal states in the sensitive area of the Persian Gulf and the effects of establishment of artificial islands on the rights of the other countries in one of the most important hot spots of the world. If you add the existing conflict of Iran and UAE on the three Islands of Tunbs and Abu-Musa, along with other problems of the region, to the picture, a more disturbing image may appear.

Maritime territories and the artificial islands in the Persian Gulf 

According to the international law of the Sea (as a branch of the public international law), the territorial sea (or coastal sea) of the states surrounding the Persian Gulf (Iran, Saudi Arabia, Iraq, the United Arab Emirates or the UAE, Kuwait, Qatar, Bahrain, Iraq, and Oman) is 12 nautical miles, and outside of that there is a Contagious Zone of the same width and the rest is the EEZ or Exclusive Economic Zone. In other words, there is no Res Communis or part of the High Sea that is not a part of the EEZ in the Persian Gulf. This means that: no other state, except than the coastal states, can establish artificial islands in the Persian Gulf.

At the same time the geographical situation of the sea-bed in the Persian Gulf is in a way that the whole area under the waters of the Persian Gulf is part of the continental shelf and there is no area in the Persian Gulf out of the range of the legal or geographical range of the continental shelf.  This requires that all surrounding states of the Persian Gulf delimit their shares of the continental shelf and the EEZ above it. This means: except than navigation over the EEZ, and the right of innocent passage from the territorial seas, there are no other rights (such as exploration and exploitation of resources, fishing, laying cables and so on) for the non-littoral states in the Persian Gulf. The maritime area behind the baseline (usually the coastal line) of the states is "internal waters".

Some of the states in the Persian Gulf area have very intensive straight baselines that are used for measuring their maritime territories which makes considerable parts of the coastal areas as internal waters. There is not any right for other states in this area. The location of the artificial islands in the various parts of the maritime territories may have different legal effects.

What is an artificial Island? 

Artificial islands and installations are man-made, surrounded by water from all sides, above the water at high tide, supposed to stay at a specific geographical location for certain span of time and stationary in their normal mode of operation at sea.[4]

According to the law of the sea in general and the 1982 United Nations Convention on the Law of the Sea (UNCLOS) in particular, artificial islands have little legal implications, especially as far as the measurement of the maritime zones are concerned. The Artificial Islands are not considered as permanent harbor works.  This means that: the coastal state cannot claim the same rights that have been provided for the permanent harbor works in the determination of the baseline and measurement of maritime zones.  

Article 11 of the UNCLOS 1982, provides: "for the purpose of delimiting the territorial sea, the outmost permanent harbor works which form an integral part of the harbor system, are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbor works."[5]

According to the same convention the artificial islands are under jurisdiction a coastal state if they are constructed in the EEZ (the Persian Gulf has no place out of the EEZ).   The article 56 of the 1982 UNCLOS provides: "1- in the exclusive economic zone, the coastal State has (a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and the sea-bed and its subsoil, and with regard to other activities for economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this convention with regard to (i) the establishment and use of artificial islands, installations and structures….(2) In exercising its rights and performing its duties under this convention in the exclusive economic zone, the coastal state shall have due regard to the rights and duties of other states and shall act in a manner compatible with the provisions of this convention…."[6]

Artificial islands do not possess and are not able to gain the legal status of the natural islands or even the tidal elevations (i.e. Islands that only appear in the low tide).  This means: they do not have their own maritime zones, such as territorial sea (12 nautical miles), contiguous zone (another 12 nautical mile) or exclusive economic zone (200 miles from the baseline).

In order to examine the legal basis of this point, let us have a look at a paragraph from the well-known book of Churchill and Lowe on the Law of the Sea, published by the Manchester University Press. The book has been translated to many languages and it has turned into a standard academic text book on the law of the sea and sometimes it is called the Bible of this branch. The authors have pointed out: "The only provision on artificial islands in the 1958 Geneva Convention (on the Law of the seas) was article 5(4) of the Continental Shelf Convention, which provided that installations connected with the exploration and exploitation of the shelf's natural resources and located on the continental shelf 'do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal states.'  So the artificial islands cannot be the baseline for measuring the maritime territories.  The 1982 Convention on the law of the sea supports this conclusion.  Article 11 provides that: offshore installations and artificial islands shall not be considered as permanent harbor works…Article 60(8) and 80 provide that artificial islands and installations constructed in the EEZ or the continental shelf have no territorial sea of their own nor does their presence affect the delimitation of the territorial sea, EEZ, or continental shelf. …even though the construction of artificial islands on the high seas is now considered as a freedom of the high sea (article 87 of the Law of the Sea Convention), the prohibition on states from subjecting any part of the high seas to their sovereignty (article 89 of the 1982 Convention of the Law of the Sea) prevents the establishment of any maritime zones around artificial islands on the high seas."[7]  As it was said the latter part has nothing to do with the existing situation in the Persian Gulf, because there is no part of the High Seas outside the EEZ in the Persian Gulf.

Only the coastal state may authorize the construction of artificial islands. This is a point expressed clearly in the article 60 of the 1982 UNCLOS. However, on the high seas beyond national jurisdiction, any state may construct artificial islands (article 87).[8]

Is it legally correct to say that any state in the Persian Gulf can construct artificial islands in its territorial sea without paying attention to the concerns of other coastal and even non-coastal states?  

The answer is definitely negative. Construction of artificial islands has considerable impacts around them, especially if the projects are large scales. The big projects, as the one Dubai is following, have extensive environmental implications for the whole region. "This subject is addressed in numerous treaties, other instruments, and international court and arbitral decisions. Late in 2003, for example, the International Tribunal for the Law of the Sea addressed claims by Malaysia that a Singapore land reclamation project would adversely affect the marine environment by, among other things, increasing sedimentation, increasing coastal erosion, and increasing salinity and pollution due to discharges. The Tribunal focused on a variety of procedural obligations, found in the Law of the Sea Convention and in general international law, which require steps of assessment, notification, and cooperation. For example, potential effects of activities reasonably believed to cause significant and harmful changes to the marine environment must be assessed, and other states must be notified about damage to the environment. The Tribunal in the Malaysia-Singapore Land Reclamation Case also invoked what it termed the "fundamental" duty to address environmental concerns through cooperation. In addition, the Tribunal found that, "given the possible implications of land reclamation on the marine environment, prudence and caution require[d]" the establishment of certain risk-assessment mechanisms. The Tribunal's "prudence and caution" Language indirectly echoed the still-evolving "precautionary principle." This principle has been articulated in treaty law and discussed in the international legal literature with increasing frequency since its inclusion in the Rio-Principles, which were developed at the 1994 U.N. Conference on Environment and Development (UNCED). Broadly speaking, this principle provides that "[w]here there are threats of serious . . . damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." Among other broad principles of current significance 

In the field of international environmental law, the concept of "sustainable development," articulated at UNCED, provides a procedural touchstone against which development proposals will be considered. An artificial island would have effects on the marine environment, effects that would be evaluated in light of these established and asserted principles of international environmental law."[9]

Persian Gulf is an enclosed or semi-enclosed sea.[10] Noting that the Persian Gulf is considered one of the "enclosed and semi-enclosed seas" what are the effects of this issue on construction of the artificial islands?  Articles 122 of the UNCLOS, 1982, provides: "For the purposes of this Convention, "enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States." This definition is exactly compatible with the Persian Gulf. As far the legal implications of this situation are concerned, article 123 of the UNCLOS 1982 provides: "State bordering an enclosed or semi-enclosed sea should cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavor, directly or through an appropriate regional organization:

1. to coordinate the management, conservation, exploration and exploitation of the living resources of the sea;

2. to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment;

3. to coordinate their scientific research policies and undertake where appropriate joint programs of scientific research in the area;

4. to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article."[11]

Dubai (in the UAE) is home to some of the largest island complexes in the world, including the three Pam Islands Projects, the World, and the Dubai Waterfront.[12] Iranian officials have shown some concern about the implications of the construction of artificial Islands by the UAE in the Persian Gulf in the large scale. An Iranian top environmentalist has said the Persian Gulf is a semi-landlocked sea with great sensitivities and stressed that existence of ecosystems like Herra forests have added to the ecological significance of the area.[13] According to other Iranian sources: "…the UAE plans to build more than 325 artificial islands by expending billions of dollars in the Persian Gulf waters….the UAE currently possesses 60 square kilometers of the Persian Gulf islands and according to Sultan Bin Salim, the project manager of the World Islands, the UAE's island area increase to 1200 kilometers. The construction of these artificial islands will not only entail environmental degradation, but would also change the geopolitics of the Persian Gulf. The Persian Gulf is presently home to many species and biodiversity.  More than 500 fish, 15 shrimp, and five rare turtle species inhabit the region. Experts of international organizations have warned against the destruction of Dubai's sole coral coast and coastal nests of turtles in the first phase of this project.  They have also warned about the change in the quality of the Persian Gulf waters.  Director General of Iran's Department of Environment, Seyyed Mohammad Baqer Nabavi, said he has called on the officials of the Regional Convention for Cooperation to Protect and Improve Coastal Zones and Maritime Environment to examine whether the construction of manmade islands in the Persian Gulf is in compliance with the international environmental standards. Referring to the 'very sensitive' nature of the Persian Gulf, Nabavi said any interference in its ecosystem as a result of these activities will negatively impact the region's environment, Fars News Agency reported. In an open letter to the UN Chief Kofi Annan, a copy of which was faxed to Iran Daily, Seyyed Mohammad Jafar Sadat Mousavi, who heads the Majles Environmental Faction, urged him to address the environmental concerns related to the World Islands.  Sadat-Mousavi pointed out that the project is a blatant violation of the international conventions of 1958 and 1982 as well as their provisions."[14]

This concern is not limited to the Iranian authorities.  "These artificial islands …are a growing concern for environmentalists due to their impact on the local marine ecology. Dubai should be concerned as well for the long-term viability of the plan: rising sea levels from global climate change could spell trouble for its audacious and ostentatious investments…"[15]

Conclusion

It seems illogical and out of the legal context to ask the states around the Persian Gulf to stop building the artificial Islands in their maritime areas.  However, taking into consideration the general obligations of the states as members of the international community, the treaty obligations of the states, especially in field of the international law of the sea, and the environmental law these points must can be stated as the conclusion of the present piece:

1. The non-littoral states cannot construct artificial islands in any part of the Persian Gulf.

2. The flag state (or the coastal state) of the artificial islands must give proper notification to the other regional states regarding the construction and particulars of the artificial islands.

3. The flag state (or the coastal state) of the artificial islands must arrange for regional coordination, especially through the ROPME for the sharing the information, exchange of the experiences, and planning for emergencies and other considerations related to the establishment and operation of the artificial islands.  The Regional Organization for Protection of the Marine Environment (ROPME) which is based in Kuwait has been established in 1979 to look after the pollution and other environmental problems of Persian Gulf. Iran, Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates (UAE) are members of the ROPME. It seems that the Persian Gulf States can use the ROPME for settling some problems regarding the artificial islands, and they have not used this channel so far. One of the issues mentioned in the "Protocol for Protection of the Marine Environment against Pollution from Land-based Sources" dated 1990, reads as "wastes generated from coastal development activities which may have a significant impact on the marine environment."[16]

4. The flag state (or the coastal state) of the artificial islands must make plans and preparations for observing the rights of other littoral states, and non-littoral states, especially in case of the using the right of innocent passage from the maritime territories. This may involve planning of the traffic schemes and corridors.

5. Noting the environmental effects of the artificial islands, the flag state (or the coastal state) of the artificial islands must make plans and provide regulations to minimize the environmental effects of the construction of the artificial islands. The effects of the artificial islands on the regional ecosystem and the marine pollution due to accidental and operational reasons are among the most important points that should be addressed.

6. In order to compensate for the inevitable damage to the regional ecosystem and the environment, the flag state (or the coastal state) of the artificial islands must take actions, through coordination with other concerned states, to perform plans and implement arrangements for replacing the damaged parts or systems. This may include construction of additional structures, establishment of systems to help the natural habitat of the species are put to danger due to the construction of the artificial islands, and provide alternatives for the concerned issues.

7. The flag state (or the coastal state) of the artificial islands must work with the other regional states. This is not only based on the fact the Persian Gulf is "enclosed and semi-enclosed sea", but also because it is mentioned as one of the environmentally sensitive areas in the Law of the Sea Convention.

8. The last but not least point is that all littoral states of the Persian Gulf are Muslim countries and there is a strong legal and religious principle in Islam which accepted both by Sunnis and Shiites and that is the Principle of "La-Ezrar" or stopping from creation of loss and damages to the interest of the other Muslims. This principle should be respected inn establishment of the artificial islands, even if it not rooted in the present body of the international law, as it is accepted in the Islamic law.
    

Note: This article is first published in the Soochow Law Journal, Vol.6, and Jan.2009.

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