SCHOOL OF LAW,PARKLANDS

BLW 4105: MARITIME LAW

GROUP 6
1. IGNATIUS MUGAMBI BLAW/2022/46291
2. MERCY MWENESI BLAW/2022/45006
3. ESTHER SANAIPEI BLAW/2021/96133
4. EDDIE KARIUKI MWANU BLAW/2022/46971
5. MARLON GACHAGO BLAW/2022/46372
6. PAUL MUNAI ONCHANA BLAW2021/95125
7. VIVIAN KAUME BLAW/2021/96111
8. ANN MUNGA BLAW2021/95015
9. VIVIAN KINYANJUI BLAW/2020/69410

LEGAL STATUS OF ISLANDS, STRAITS AND ARTIFICIAL ISLANDS UNDER

THE LOSC.

The Legal Status of Islands Under the Law of the Sea Convention (LOSC)

The United Nations Convention on the Law of the Sea (LOSC), also known as UNCLOS,
defines and regulates the legal status of islands, distinguishing them from other maritime features
such as rocks and artificial structures.

1. Definition of an Island (Article 121(1) of UNCLOS)

According to Article 121(1) of LOSC, an island is a “naturally formed area of land, surrounded
by water, which is above water at high tide.”

2. Legal Regime of Islands (Article 121(2))

A legitimate island is entitled to:

● A 12-nautical-mile Territorial Sea

● A 200-nautical-mile Exclusive Economic Zone (EEZ)
 ● A Continental Shelf

This grants the coastal state sovereignty and jurisdiction over resources in these maritime zones.

3. Exception: Rocks and Uninhabitable Features (Article 121(3))

● Rocks that cannot sustain human habitation or economic life of their own do not
generate an EEZ or continental shelf, only a 12-nautical-mile Territorial Sea.
● This distinction is crucial in maritime disputes (e.g., the South China Sea disputes).

4. Artificial Islands and Reclaimed Land

● Artificially built islands do not have the same legal status as natural islands (Article
60).
● They do not generate territorial waters, an EEZ, or a continental shelf.
● Their status is limited to safety zones of up to 500 meters.

5. Disputes and Case Law

● South China Sea Arbitration (2016):

● The South China Sea has two chains of Islands, Paracels and Spratly chain of islands,
which is claimed by several sovereign states including The People’s Republic of
China. China claims historical jurisdiction over both parcels and has been claiming
maritime rights over most of the South China Sea. China also claims rocky
formations that are found around 100 miles off the Philippines.
● The tribunal ruled that certain features claimed by China were rocks under Article
121(3) and not entitled to an EEZ.
● The South China Sea Arbitration (2016) was a landmark international legal case
initiated by the Philippines against China under the United Nations Convention on
the Law of the Sea (UNCLOS). The case was heard by the Permanent Court of
Arbitration (PCA) in The Hague, and the tribunal delivered its ruling on July 12,
2016.
● Key Issues:
● China’s "Nine-Dash Line" Claim:
○ China asserts historic rights over most of the South China Sea through the
nine-dash line, which overlaps with the Philippines' EEZ and claims of
other Southeast Asian nations.
○ The Philippines argued that this claim has no legal basis under UNCLOS.
● Status of Maritime Features:
 ○ The Philippines questioned the legal status of specific features such as the
Spratly Islands, arguing that many are rocks or low-tide elevations, not
islands.
○ According to UNCLOS Article 121(3), rocks that cannot sustain human
habitation or economic life do not qualify for 200-nautical mile EEZs.
● Chinese Activities:
○ The Philippines alleged that China violated its sovereign rights by:
■ Constructing artificial islands.
■ Damaging coral reefs.
■ Harassing Filipino fishermen.
■ Interfering with oil exploration in the Philippines' EEZ.
●
● Tribunal's Ruling:
● Nine-Dash Line Invalid:
○ The tribunal ruled that China's historical claims based on the nine-dash line
had no legal basis under UNCLOS.
● Status of Maritime Features:
○ None of the features in the Spratly Islands were classified as islands,
meaning they are not entitled to EEZs or continental shelves.
○ Several features, including Mischief Reef and Subi Reef, were classified as
low-tide elevations, meaning they cannot be claimed by any state.
● Chinese Activities Violated UNCLOS:
○ China was found to have violated the Philippines' sovereign rights by
interfering with fishing and petroleum exploration within the Philippines'
EEZ.
○ The construction of artificial islands caused irreparable harm to the marine
environment.

● China's Response:
● China rejected the ruling, labeling it as "null and void", and refused to participate in
the arbitration process.
● Despite international pressure, China continues to militarize and build infrastructure
on disputed features.
●
● Significance:
● The ruling set an important precedent for maritime law under UNCLOS,
emphasizing the limitations on claims based on historic rights.
● It highlighted the importance of environmental protection and freedom of
navigation.
 ● However, the lack of enforcement mechanisms means the dispute remains a
flashpoint for regional tension.

Japan’s Okinotorishima case:

Japan claims an EEZ, but some states argue it is just a rock under UNCLOS.The
Okinotorishima case centers on Japan's claim over a remote atoll in the Philippine Sea,
located about 1,740 km (1,080 miles) south of Tokyo. It consists of two small, man-
made reinforced coral outcroppings that are visible above sea level at high tide. The
dispute involves whether Okinotorishima qualifies as an island or merely a rock under
international law, specifically under Article 121 of the United Nations Convention on
the Law of the Sea (UNCLOS).

Japan's Claim:

● Japan asserts that Okinotorishima is an island, which grants it the right to a 200-
nautical mile Exclusive Economic Zone (EEZ) and continental shelf under
UNCLOS.
● By maintaining infrastructure and conducting research, Japan aims to demonstrate
human use and economic activities in the area.
● If recognized as an island, it would secure a vast maritime area rich in potential
resources, including fisheries and seabed minerals.

Opposing Views:

● Several states, including China and South Korea, argue that Okinotorishima is
merely a rock, as it cannot support human habitation or economic life of its own, as
specified under UNCLOS Article 121(3).
● Rocks are not entitled to an EEZ or continental shelf, limiting claims to a 12-nautical
mile territorial sea.
● Critics see Japan’s efforts, including reinforcing the outcroppings with concrete, as an
artificial attempt to maintain sovereignty over a larger maritime zone.

Legal and Diplomatic Implications:

● The classification affects maritime boundaries, resource rights, and strategic control
in the Pacific.
● If recognized as a rock, it undermines Japan’s expansive maritime claims.
● If accepted as an island, it reinforces Japan's territorial and resource rights over a vast
ocean area.
The Okinotorishima case reflects broader geopolitical tensions over maritime jurisdiction and
resource competition in the Pacific region.

The unequal treatment and effects of Islands.

Article 121(2) provides that an island has an equal claim to generate the same maritime
entitlements just like any other land territory. However, the above statement is subject to
contravention in real life practice. Islands are not treated uniformly in practice. Attaining full
status of Islands only generates possibility of full entitlement, depending on context. This was
reiterated in the South China Sea Arbitration Case, where the tribunal suggested that there are
islands which are fully entitled to generate maritime zones and there are islands that are not fully
entitled. Some of the contextual determinants are location and political status. The proximity of
islands to another maritime feature determines its treatment, as they may not be treated favorably
than the landmass to which they are proximate.

Conclusion

Under LOSC, islands enjoy full maritime rights, but the distinction between islands, rocks, and
artificial features is crucial in international law and maritime disputes. Coastal states often seek

to claim features as "islands" to expand their EEZ, making the legal classification a key issue in
geopolitics.

LEGAL STATUS OF STRAITS.

Definition.

The United Nations Conference on the Law of Sea does not provide a definition of a strait. Hence the
ordinary meaning of a strait, geographically, a narrow passage between two land masses or islands or
groups of islands connecting two sea areas.

The rights of coastal and flag states in the waters of a strait is determined by the legal status of the of the
waters constituting the strait and the fact of their use by international shipping. International straits
include the following, each with its own unique characteristics and passage regime:

i. straits used for international navigation where transit passage applies;

ii. geographic straits through which a high-seas corridor exists;

 iii. straits governed by long-standing conventions;

iv. straits with routes through the high seas or exclusive economic zone (EEZ) that are of
similar convenience;

v. straits formed by islands;

vi. archipelagic straits, governed by archipelagic sea lanes passage (ASLP); and

vii. dead end straits.

THE LEGAL STATUS OF STRAITS

Straits are narrow passages of water connecting two larger bodies of water and are crucial for
international navigation. The legal status of straits was one of the thorny issues in the negotiations of the
Convention because extension of the territorial sea to 12NM meant that some the straits used for
international navigation will be part of the state’s territorial sea.

Part III of the law of the sea convention deals with straits. A strait is under the sovereignty and
jurisdiction of the state bordering it and should be exercised subject to the convention and international
law. The state bordering the strait therefore exercises its sovereignty by:
 i. Adopting and implementing laws and regulations which relate to transit passage by
foreign ships and vessels without discrimination;

ii. Adopt laws and regulations to prevent pollution of the marine environment;

iii. Adopt laws regulating fishing within the strait; and

iv. Giving consent for marine scientific research and survey activities to foreign states.

States bordering straits are obligated to allow transit passage and give any information about any dangers
that may impede navigation or overflight within or over the strait. The state cannot none the less suspend
transit passage within the strait. Article 45 stipulates that states bordering a strait cannot suspend innocent
passage through the strait.

Marine Scientific Research and Survey Activities

Foreign states which intent to carry out research in a strait or any survey activities are required to get prior
authorisation of the state bordering the strait in the prescribed manner as stipulated under article 40 of the
Convention.

Transit Passage

Ships and aircrafts have the right of transit passage within a strait. The freedom of navigation and
overflight between one part of the high sea and the exclusive economic zone to the other part or an EEZ
should be continuous and expeditious. This right of passage cannot be suspended or impeded by the state
bordering the strait. Submarines are required to navigate in the space and show their flags while
exercising the right of transit passage through the strait.

Ships and aircrafts, in exercising their right to transit passage are obligated to;

1. Proceed without delay;

2. Refrain from any threats or use of force which would be considered a threat to the sovereignty,
territorial integrity and political independent of states bordering the straits;
3. Comply with national and international laws and regulations to prevent marine environment
pollution;
4. Refrain from activities which hinder continuous and expeditious transit.

The imposition of these laws and regulations should not impede the right of transit passage enjoyed by
foreign ships and aircrafts. The delicate balance between coastal state sovereignty and the right of transit
passage ensures that international straits remain open while allowing the coastal states to protect their
territorial sovereignty.

CORFU CHANNEL CASE (United Kingdom v. Albania) (1949)

The Corfu Channel Case is a landmark judgment in maritime law decided by the International Court of
Justice (ICJ) in 1949. It established key principles regarding innocent passage, state responsibility, and
maritime security, shaping modern interpretations under the United Nations Convention on the Law of the
Sea (UNCLOS).

The Corfu Channel, located between Albania and the Greek island of Corfu, is a strategic international
waterway.

On May 1946, two warships HMS Orion and HMS Superb passed through Corfu channel.Albania coastal
batteries fired warning shots but no damage was inflicted.UK protested, claiming the ships were
exercising the right of innocent passage.

On October 22, 1946,UK sent two British warships (HMS Saumarez and HMS Volage) to assert their
right to navigate the strait.As they passed through,Saumarez struck naval mines.Volage, while attempting
to tow Saumarez, also struck a mine causing an accident where 44 British soldiers died and several
wounded.

On November 1946, Britain conducted a mine clearing operation without Albania’s consent where they
found laid mines which they presented as evidence against Albania.

The UK claimed that Albania was responsible for the presence of the mines and sought compensation as
Albania did not warn them of their presence.

Albania denied responsibility and argued that the UK had violated its sovereignty while conducting the
mine clearing operation.

Major issues here were;

Right of Innocent Passage in International Straits

Did British warships have the right to pass through the Corfu Channel without Albania’s permission?

The ICJ ruled that warships have a right of innocent passage through international straits used for
navigation.

The Corfu Channel was classified as an international strait, meaning Albania could not prevent passage
unless there was a security threat.
This ruling influenced UNCLOS Article 38, which affirms the right of transit passage in international
straits.

State Responsibility for Maritime Security

Was Albania responsible for the mines in its territorial waters?

ICJ held Albania responsible for not warning other states about the mines, reinforcing the duty of coastal
states to ensure the safety of navigation in straits.

Intervention and Sovereignty Violation

Did the UK violate Albania’s sovereignty by conducting mine-clearing operations without consent?

ICJ recognized Albania’s sovereignty over its territorial waters but emphasized that this sovereignty is
limited by the international right of passage in straits.

STRAIT OF TIRAN CASE

The Strait of Tiran Incident (1967) was a key event leading up to the Six-Day War between Israel and its
Arab neighbors. In May 1967, Egyptian President Gamal Abdel Nasser ordered the closure of the Strait of
Tiran to Israeli shipping, effectively blocking Israel's access to the Red Sea via the port of Eilat. This
move was seen as an act of war by Israel.

The Strait of Tiran is a narrow passage between the Sinai Peninsula and Saudi Arabia, controlling
maritime access to the Gulf of Aqaba.

After the Suez Crisis (1956), Israeli ships were guaranteed passage through the strait under UN
supervision.

In May 1967, Nasser expelled the UN peacekeeping forces from Sinai and massed Egyptian troops along
Israel’s border.

On May 22-23, 1967, Egypt officially closed the Strait of Tiran to Israeli ships and those carrying
strategic goods to Israel.

This blockade cut off Israel’s access to oil shipments from Iran and other trade routes.

Israel viewed the blockade as a casus belli cause for war and sought international diplomatic solutions,
but none succeeded.
The closure escalated tensions, leading Israel to launch a preemptive strike on June 5, 1967, marking the
start of the Six-Day War.

Israel defeated Egypt, Jordan, and Syria, capturing the Sinai Peninsula, West Bank, Gaza Strip, and Golan
Heights.

The Strait of Tiran was reopened after Israel’s victory, and it remained under Israeli control until the
Camp David Accords (1979), when Israel returned Sinai to Egypt.

THE STRAIT OF HORMUZ DISPUTE

The Strait of Hormuz dispute in 2011 was a significant geopolitical crisis between Iran and the United
States, along with its allies, over maritime security and sanctions on Iran. The dispute revolved around
Iran’s threats to block the Strait of Hormuz, a critical chokepoint for global oil shipments.

The Strait of Hormuz is a narrow passage between the Persian Gulf and the Gulf of Oman, through which
about 20% of the world’s oil trade flows.

In late 2011, tensions escalated due to increasing U.S. and European sanctions on Iran, aimed at curbing
its nuclear program.

In response, Iran threatened to block the strait, which was seen as an act of economic warfare against oil-
dependent nations.

On November 2011, the U.S. and EU expanded sanctions against Iran, targeting its oil exports and
financial sector.

The sanctions aimed to pressure Iran into halting its uranium enrichment program.

On December 2011, Iranian officials, including Vice President Mohammad Reza Rahimi, warned that
Iran would close the Strait of Hormuz if oil exports were blocked by sanctions.

Iran’s Navy launched a 10-day military exercise named "Velayat 90", which included missile tests and
naval maneuvers in the strait.

The U.S. Navy deployed aircraft carriers to the Persian Gulf, emphasizing that any blockade of the strait
would be considered an act of war.

The Fifth Fleet, based in Bahrain, warned that it would prevent any disruption to maritime traffic.

On December 28, 2011, Iranian Admiral Habibollah Sayyari stated that closing the Strait of Hormuz
would be "very easy for Iran".
The U.S. dismissed Iran’s threats, with the Pentagon and State Department stating that any attempt to
block the strait would "not be tolerated."This is because there are legal debates that strait of Harmuz is an
international strait under UNCLOS, meaning that Iran can not legally suspend transit passage.

No actual closure occurred, but tensions remained high into 2012, leading to further naval
confrontations.This dispute caused oil prices spike temporarily due to fears of supply disruptions.

ARTIFICIAL ISLAND

Definition
An artificial island is a manmade area land, constructed by humans typically through land
reclamation, rather than formed by natural process. UNCLOS does not provide an explicit
definition of artificial islands but it establishes artificial islands under Article 60.

Jurisdiction
Article 60(1) states that in the Exclusive Economic Zone the coastal state shall have exclusive
right to construct and to authorize and regulate the construction and operation of;

a) Artificial islands

b) Installations and structures for those under Art 56 and other economic purposes.

c) Installations and structures which may interfere with the exercise of the rights of the
coastal state in the zone.

The coastal state shall have exclusive jurisdiction including jurisdiction with regard to customs,
fiscal, health, safety and immigration laws and regulations.

Article 87(1) (d) grants all states whether coastal or landlocked the freedom to construct artificial
islands and other installations permitted under international law. These freedoms shall be
exercised by all states with due regard for the interest of other states in the exercise of the
freedom of high seas.
CONSTRUCTION AND MANAGEMENT OF ARTIFICIAL ISLANDS.

This is provided for under Article 63 of the Law of The Seas Convention. The article has
expounded on what needs to be done before construction of an Artificial Island and what needs
to be done once the Artificial Island has served its purpose.

a) Notice of construction- this article provides that due notice must be given. This means
that the relevant authorities should be notified of the artificial island and its specific location.
It is important so as to avoid accidents.

b) Permanent warning systems- the article further provides that once an artificial island has
been put in place, there must be permanent systems to warn the ships about the presence of
the artificial island. An example could be lights.

c) Removal of abandoned structures- if an artificial island is no longer in use, it must be

removed. This is necessary to ensure safety of navigation. However, the removal process
should follow internationally accepted standards set out by competent international
organizations.

d) Consideration of several factors during removal- when removing the artificial islands the
authorities must consider;

- The safety of navigation by ensuring no remnants are a risk to ships.

- Fishing in that the removal should be done in a way that doesn’t affect
fishing zones.

- The marine environment in that the removal should be done in a way that
doesn’t harm the marine environment.

- The rights and duties of other states such that if it is on international

waters the removal must consider the rights of other states that could
potentially be affected.
 e) Publicizing information on any remnants- if some parts have been removed, details such
as their depth, position and dimensions must be publicly shared to ensure that any ship
navigating those areas is aware of them.

Examples of countries with successful artificial islands is Japan which has Odaiba artificial
island which was originally built in the 1850s and redeveloped in the 1990s into a major
commercial, residential and leisure area.

Another example is the kankujima artificial island in Osaka bay, upon which the Kansai
International Airport is built.

LEGAL LIMITATIONS OF ARTIFICIAL ISLANDS

Article 60 (8) states that artificial islands, installations and structures 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, exclusive economic zone (EEZ) or the continental shelf.

Safety Zones: Article 60 (4)-(6) provides for the right of the coastal state to have safety
measures in place around the artificial islands.

Article 60(4) The coastal State may, where necessary, establish reasonable safety zones around
such artificial islands, installations and structures in which it may take appropriate measures to
ensure the safety both of navigation and of the artificial islands, installations and structures.

(5) The breadth of the safety zones shall be determined by the coastal State, taking into account
applicable international standards. Such zones shall be designed to ensure that they are
reasonably related to the nature and function of the artificial islands, installations or structures,
and shall not exceed a distance of 500 metres around them, measured from each point of their
outer edge, except as authorized by generally accepted international standards or as
recommended by the competent international organization. Due notice shall be given of the
extent of safety zones.

(6) All ships must respect these safety zones and shall comply with generally accepted
international standards regarding navigation in the vicinity of artificial islands, installations,
structures and safety zones.
Navigational rights: Article 60(7) states that artificial islands, installations and structures and
the safety zones around them may not be established where interference may be caused to the use
of recognized sea lanes essential to international navigation. This article protects the navigational
rights of each and every ship ensuring that their right of innocent passage is not infringed or
rather interfered with in the territorial sea and the right to free navigation even on the high seas
remains unhindered.

Impact on Maritime Boundary: Article 60(8) provides that artificial islands, installations and
structures 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, the exclusive economic zone or the
continental shelf. Meaning that artificial islands, installations and structures have no impact on
the maritime boundaries.

Environmental protection: Article 192 provides that States have a general obligation to protect
and preserve the marine environment.

Article 193 guarantees States the sovereign right to exploit their natural resources pursuant to
their environmental policies and in accordance with their duty to protect and preserve the marine
environment.

Therefore, during construction of artificial islands, installations and structures, either on the
territorial sea or the high seas, states have a duty and an obligation under the 1982United Nation
Convention on The Law of The Sea (UNCLOS) to ensure that the structures are

environmentally friendly and they would not pose a threat to the marine environment and its
species.[1]

EMERGING ISSUE

There has been a new arising issue with regards to the construction of energy islands by 3
European countries including; Belgium, Denmark and Netherlands in the Northern Sea. This new
arising factor has brought about questions on three major issues:
 i) Classifications, on whether they are islands or installations

ii) Environmental laws applicable

iii) Balancing with other maritime uses

The development of artificial energy islands can contribute to the large-scale deployment of
offshore wind and the integration thereof in the energy system. Under international law, States
are permitted to construct such artificial islands. An important distinction between artificial
islands and installations and structures is that there is no obligation to remove artificial islands
under the LOSC, whereas installations and structures in principle must be removed when no
longer in use. Even though the European Union has no specific laws governing such, their
environmental laws are applicable and other policies and regulations like; Habitats Directive,
EIA and SEA Directives, Maritime Spatial Planning Directive and Marine Strategy Framework
Directive. The full actualization of energy islands heavily depends on a reliable and coherent
legal framework. Currently, the construction and operation of energy islands is subject to a
number of laws and regulations that remain ill-suited to the novel aspects of artificial energy
islands. Beyond the practical questions of where and how energy islands should be developed,
States need to consider the suitability of their domestic legal frameworks and respond to gaps
and ambiguities in time to fit with their offshore energy ambitions.[2]

[1] 1982 United Nation Convention on The law of The Sea Article 60& Part XII
https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf
[2] https://brill.com/view/journals/estu/39/1/article-p39_3.xml?language=en