The Status of Maritime Features: a Legal Fiction?

A lot of ink has been spilled on how we are to determine the status of maritime features. No doubt, this will continue in the aftermath of the decision of the Arbitration Tribunal in the South China Sea case (The Republic of Philippines v The People’s Republic of China) (2016). Indeed, the extent to which this “clarifies” the distinction between fully entitled islands and other features not so entitled, is doubtful. This paper demonstrates that the decision of the Arbitral Tribunal confirmed that the determination of the status of certain maritime features can be an exercise in legal fiction. Firstly, the paper analyses the concept of a “legal fiction” and considers their distinguishing features. Second, it explains that the law pertaining to artificial islands and to the determination of the status of some maritime features utilises fiction. Specifically, the rule that islands are only of natural formation was interpreted by the Arbitral Tribunal as requiring the denial of reality. We are to maintain a discrepancy between the actual physical status of insular features and their legal status. The paper asks whether this fiction is something that UNCLOS should allow?