Ⅱ．Island-building: Legitimate or Not?
From the above discussions on the legal origins of island-building, it can be concluded that island-building possesses the legal nature of international law and is regulated by it．But the different patterns of island-building may lead to different legal applications and legal consequences, and subsequently its legal nature of international law undergoes changes to some extent, from the precedent application of international law towards the exclusive application of domestic laws．Furthermore, once the right of island-building right is beyond its legal boundary, violation of laws will occur．What on earth is the legal nature of island-building? And how do we determine the legality of island-building acts? These are the questions that this part intends to answer.
A．The Legal Nature of Island-building
Island-building is a colossal project that requires a huge amount of manpower and material resources, is highly technical in nature, and needs profound reserve of human resources and national funds．Different from the construction of houses and facilities on an uninhabited island, island-building aims at the expansion of the land area, namely, the part that is originally submerged by the sea．Thus island-building generates title to the land rather than to the above-ground buildings．The land, as a necessary requirement and component of a state, is inseparable from the acts of sovereignty performed by a state．Zhou Gengsheng pointed out, “A certain area which can be inhabited by its people is a must for the existence of a state．And the nomadic people that migrate frequently without a fixed settlement area cannot constitute a state.”[1]Therefore, to maintain this fundamental conditions for its existence, a state should save no efforts to retain or even expand its territorial size so as to guarantee the settlement of its people and improve their quality of life．Such a right for territorial expansion is an inherent right of a state's sovereignty, which is reflected in the sources of both international laws and domestic laws, for example, the UNCOLS, Japan's Act for Low Tide Protection and preparedness of Base Facilities, America's Marine Resources and Engineering Development Act of 1966, Coastal Zone Management Act of 1972, and Britain's Marine and Coastal Access Act 2009．China also enacted The Law on the Exclusive Economic Zone and the Continental Shelf of the People's Republic of China[2], and The Law of the People's Republic of China on the Administration of the Use of Sea Areas.[3]Sometimes, a state may commission a private legal person to undertake some island-building projects; some costal states may even authorize other states to build islands in its own sea area[4], but behind all these, it is the will of the state that is reflected, and thus they are all acts of the state regardless of the manifestations.
Legal Nature I: Patterns of Acts
The act of a state, on its surface, should abide by international law．And when there is no relevant or applicable international law, the act of a state is often perceived as a violation of international law．However, this conclusion itself is logically wrong in its deduction, because non-application of international law does not mean a violation．Acts of the state in many cases are legitimate, even if they do not comply with the rules of international law．We note that in international law of the sea there exist many “residual rights”[5], which are based on the territorial sea, and aim at both expanding the coastal jurisdiction and reducing the freedom of the high seas．Such rights have even expanded to the air space, such as the air defense identification zone.[6]Of course, the source of the residual rights is national sovereignty, which should, as clarified in the Bill of Rights (1791) of the United States, “be reserved for the people to exercise”．We are not here to discuss the overlapping of connotations between residual rights and sovereignty, but to indicate the primacy of national sovereignty in the law of the sea．That is to say, when a state exercises its rights involving the territorial sea, the completely exclusive jurisdiction, together with supreme sovereignty, constitutes the basis of the power of a state's island-building behavior.
In his theory of territory accretion, Oppenheim emphasized particularly that “a state cannot build a construction such as a dam without the prior agreement with its neighboring countries”[7]．This statement indicates that when a state is to change its territory, it should consult with other states whose interests may be affected in order to obtain their consent; otherwise the unilateral act of a state is illegitimate．Such a unilateral act, due to its harm to a third country's interests, is prohibited under international law, and therefore an investigation into the purpose and effect of the “unilateral”act at the outset may help to exclude its illegitimacy．If a state intends to build an island within its territorial sea for its national interests[8], if the purpose of this island-building is in line with international and domestic laws, and if such island-building does not cause damage to the interests of third countries[9], such a unilateral act will be perceived as legitimate under the principle of “cautious sovereignty”[10]．As a result, on the one hand, as long as the island-building of a state is in line with the interests of adjacent states, without causing real damage to other countries, and with the purpose of realizing national interests and enhancing citizens' welfare, such an act can be unilateral．On the other hand, other countries, in the absence of conclusive evidence and legal basis, have no right to request the suspension of such unilateral acts of a state, or to hold any bilateral and multilateral negotiations on the development of the situation in the future.
Legal Nature II: Legal Consequences
The legal consequences arising out of island-building generally include the extension of the sovereignty, the new “sovereign rights”, and the state liabilities generated by its internationally wrongful acts．According to the rules of international law, island-building may lead to the changes in the rights of the states．For example, UNCOLS countries may set up a “security zone”in the vicinity of artificial islands, on which the laws and regulations of “immigration, customs, finance and others”are applicable．In addition, a state may need to bear corresponding liability due to its abuse of power in island-building, which may have caused harm to other countries' interests, and thus violating the international law.
Firstly, island-building within a state's territorial sea naturally leads to the extension of its sovereignty.
A state has the absolute territorial jurisdiction within its territorial sea, so that its newly-built island definitely results in sovereignty expansion of its land, together with the specific sea area that is particularly delineated around it．Sovereignty expansion is demonstrated primarily by territorial jurisdiction, and “territory”is the key factor in connection with the scope of sovereignty．Consequently, when “permanent harbor works”[11]are not involved, there exists the possibility that the corresponding territorial sea sovereignty of the artificial island may be established after the delineation．In addition, a state's exercise of its territorial jurisdiction over the new islands within its territorial sea has long been proven legitimate through national practice.
Secondly, island-building beyond the territorial sea generates new “sovereign rights”.
Different from the general concept of sovereignty, “sovereign rights”here refer to the specific rights in the nature of a state's exercising its sovereignty, and embody the concept of “protectionism”in international law．In the areas beyond its territorial sea, a state's sovereign rights correspondingly extend beyond its traditional territorial jurisdiction．Therefore, international law not only allows island-building in the contiguous zone, the exclusive economic zone and the continental shelf, but also grant the state with certain specific rights on the new artificial island, for the purpose of protecting it against the threats and dangers outside its territory．It can be concluded that the protective jurisdiction theory supports a state's island-building practice beyond its territorial sea, protects the other countries which are affected by this practice and acknowledges the legal consequences under its jurisdiction in accordance with the law.
Thirdly, internationally wrongful acts of state result in state liability.
Although island-building is legitimate under international law, an “illegitimate”practice may occur when a state failsto fulfill its obligations under international law．Overlooking such obligations constitutes internationally wrongful acts[12]．The most obvious type of wrongful acts includes the violation of the primary rules[13], such as the treaties and customs of international law．It also includes the failure in fulfilling international obligations stipulated by UNCOLS, such as “the maintenance and notification of the alert methods”, “the withdrawal from the abandoned islands”, and “the safeguarding of the internationally recognized shipping sea lanes”, while at the same time enjoying the rights of island-building.
The author holds that the principle of “taking the rights and obligations of other countries into consideration”stipulated by UNCOLS implies the prohibition of power abuses．As a catch-all provision on rights and obligations, it clarifies that when a state exercises its island-building rights unilaterally, it has to take the other states' interests into account; and that when a state exercises such rights arbitrarily, resulting in damages to another state, such actions cannot be defended on the ground that the former intended to guarantee its legitimate national interests.[14]This legal principle is derived from the early national practice that a state is obliged not to disturb the flow of the waters to damage other coastal states．Besides, the rule that “the use of one's own fortune should not harm that of another”, as one of the general principles of law commonly recognized by civilized nations, is also adopted by Article 38 of The Statute of the International Court of Justice.[15]However, to what extent the “subjective factors”in internationally unlawful acts, such as malice or negligence, together with the theory of the prohibition of power abuses, are applicable, should be judged on a case by case basis.
Legal Nature III: Legal Application
The practice of island-building represents a “separatism”tendency in its applicable international law．Due to the existence of the residual rights in the law of the sea, it is infeasible to cover and regulate all island-building practices．The incomplete norms in international law need the supplement of those in the domestic laws．International legal order determines the scope of territorial jurisdiction, ratione personae, and statute of limitation in the domestic laws of each state, and thus the issues in the domestic law that were originally regulated by the states' will are now adjusted by international law to a certain extent, consequently restraining the scope of ratione materiae in the domestic legal order of each state.[16]As clearly described above, island-building as an international practice involves national sovereignty and “sovereign rights”, and the exercising of both will more or less affect the international legal order of another state．It is acknowledged by both monism and dualism of international law that the rules of international law create a link between the domestic and the international legal orders．And such a link is bound to result in a “separation”in the applicable laws of island-building, as this practice is not a pure domestic matter.
The “separatism”in international law originated from Bartolus's “theory of statutes”[17], which was generally applied as a basic theory in the field of foreign contract law in private international law．And “separatism”is adopted gradually when international law is applied to a state act．Though the applicable law does not equal to the lexcausae in the private law, it is logical in the island-building practice to separate such a state act according to its applicable types of laws: the domestic law or international law．The former is one way for a state to exercise its national sovereignty, and the latter is another way for a state to follow international rules, fulfill international obligations, and preserve international legal order.
Therefore, “separate”laws are applicable to a state's island-building．Domestic law is applicable to its pattern of action, but international law to its legal consequences and state liabilities．On the one hand, when island-building occurs within the territorial sea, it is within the scope of sovereignty exercising and the domestic law is clearly applicable．And when such an act occurs beyond the territorial sea, in the exclusive economic zone, for example, domestic law should be applied to the residue rights, excluding those rights covered by relevant treaties．On the other hand, the legal consequences, as well as the international liabilities of island-building, are bound to relate to the factors of international law．As a result, legal disputes between the island-building state and other states should be resolved by international law．The complexity of island-building leads to the separation in the application of the international law, therefore, “separatism”makes a breakthrough in the private law and enters the public law．Meanwhile, the intertwining of the sources of international law and domestic law will also complicate the dispute resolution．In dealing with such disputes, it is necessary to discriminate and differentiate the patterns of act, together with the factual basis, which can identify the legal consequences and state liabilities, and then help to determine which laws to apply.
In summary, the legal nature of island-building is multi-dimensional．Its subject of act is the state, or other subjects under international law authorized by that state．Its pattern of act is the unilateral act of a state, without the consent of other countries．Its legal consequence is that, with the territorial sea as its geographical boundary, the traditional rights of national sovereignty shift and expand to sovereign rights, so that it is necessary for a state to fulfill its obligations and undertake responsibilities under international law．Domestic law and international law are applicable to a pattern of act and legal consequence of island-building, respectively．Island-building is a dynamic development in its legal nature, which evolves from national sovereignty and domestic law to sovereign rights, residual rights and international law, although it seemingly manifests a growing liberalism by highlighting its pattern as a national unilateral act.
B．The Legitimacy of Island-building
The dynamic legal nature of island-building results in its swing between legality and illegality, which requires a state to be extremely cautious in exercising its rights．Meanwhile, questions are posed on how to judge the legitimacy of an island-building act．For example, what factors can ensure its legitimacy? What is the dividing line between legitimacy and illegitimacy? What are the factors that a state should pay attention to when it is building an island? This part attempts to analyze and clarify the above questions.
Firstly, the objective factors, which includethe geographic location and the method of construction．The object of island-building is the actual target that the act aims to change, including the reclamation of original island and reef[18], the expansion, and even the creation of an artificial island out of nothing．But all these are for the same purpose: theconstruction of an island．The academic attention has focused on the standards for distinguishing island and reef, in order to help a state to claim its rights under the law of the sea．However, the author holds that most of the provisions and terminologies of the UNCOLS are not defined precisely, and thus the applicability of this Convention is questionable and its operability undermined．The obsession with the terminological definitions, along with the diversity of the theoretical explanationsmay possibly aggravate the disputes．Moreover, the actual situation that there are more general rules of interpretation than actual regulations in international law leads to the separation between the target of interpretation and its legal effect．That is, the interpretation of the Convention has been reversely deduced from national practice and acts, which seriously violates the general logic in the interpretation of international law, and gives rise to more and more disputes day by day．Therefore, judging by the objective factors such as the sovereignty of the territorial sea, may be regarded as an alternative approach.
To begin with, the most direct objective standard to judge a state's territorial sea sovereignty is its geographical location．UNCOLS stipulates that every state has the right to build islands throughout the major sea areas, extending outwardly with its territorial sea as the basis．The rights of island-building vary in every sea area, because state sovereignty transforms to sovereign rights in the areas beyond the territorial sea．The right exercised within the territorial sea is one kind of sovereignty with full exclusiveness, and thus faces the least legitimacy challenge, while the right exercised beyond the territorial sea faces an increasingly tough legitimacy challenge．The latter also includes the situation that before it embarks on the expansion project, a state should possess complete territorial sovereignty over the original island, including its territorial sea which is measured 12 nautical miles from the baseline of this island, and its contiguous zone (24nm)．Without such sovereignty, the disputes over the dubious island sovereignty will make the subsequent island-building act suffer challenge over its legitimacy．Thereby the state's defense, that domestic law is applicable to its acts as an exercise of its sovereignty, is untenable.
Next, another objective standard to judge a state's territorial sea sovereignty is its method of construction．In addition to the artificial islands, there are also new naturally born islands．For example, the small Japanese island emerged because of volcanic eruptions in 2013.[19]Nowadays, limited by technology, island-building in the offshore area is primarily through artificial sea-filling without relying on the existing islands or reefs; while the artificial islands in the high seas are mainly constructed by expanding the original islands．Therefore, the exclusive economic zone, continental shelf and artificial islands in the high seas under UNCOLS should belong to the former, and the expansion of the original islands with territorial sovereignty should be interpreted as the latter．The different methods of construction depend on whether the method applied is an island “expansion”or “creation”．With this in mind, island-building within the territorial sea should also belong to the former, because under UNCOLS, such islands are not qualified to delineate the boundary of the territorial sea, and are also attached with many additional restrictive conditions．It is now considered that only the latter type of island-building can claim territorial sovereignty and the other residual rights under the law of the sea．As a result, the method of construction, as one of the objective factors, is also an important standard to judge the legitimacy of island-building.
Among the practices of island-building all around the world, it is more common for the states to build the islands relying on the original islands or reefs．And the United States and European countries' adoption of this approach is mainly for the purposes of economy and tourism, and so on．According to the available statistics, by far, there are a total of 112 artificial islands around the world．Among them, there are 20 in Europe (mainly in the Netherlands, Denmark and the United Kingdom), 30 in the Americas (mainly in California and Florida of the United States), one in Africa (South Africa), 9 in Oceania (mainly in the Solomon Islands), 20 in West Asia, South Asia and the Middle East (mainly in the Maldives, Bahrain and the United Arab Emirates), and 32 in East Asia and Southeast Asia (mainly in Hong Kong, Japan and Singapore).[20]The more famous one is Dubai's Palm Island, on which luxury hotels and residences are built．It is worth noting that China built seven artificial islands at Longkou Bay of Bohai Gulf area in Shandong Province, which form the largest artificial archipelago in China[21]．Most of these island-building practices do not provoke any international disputes because the proper way of construction makes the island-building entirely within the jurisdiction of the domestic laws of each state, and thus their practices have no connection with the international legal factors.
Secondly, the subjective factors, including a state's declaration of will and its obligation of omission in sovereignty declaration.
On the one hand, a state's will, as one of the subjective factors, in its island-building practice refers in particular to the purpose of and national interests in building islands．When international law is applicable to its legal consequences, a state needs to demonstrate the legitimacy of its acts by answering these two questions．Different from the requirements for and the consequences of burden of proof in the case of a natural person, when it is a state that tries to prove its subjective will, it needs to prove the legitimacy of its acts by demonstrating its compliance with its domestic law within the framework of international law．In addition, a state's declaration of will is generally published by an official agency or through a formal channel, such as government gazette and press conference．As for the content of its declaration, it should be the non-adverse effects brought about by the island-building, or an argument that “it is for the interests of our state, and will not affect international legal order and interests”[22].
On the other hand, the island built within the territorial sea that belongs to territorial accretion and subsequently helps to expand national sovereignty．And it is a custom in international law that there is no need for the state concerned to take any particular steps to claim the relevant sovereignty for such territorial expansion due to the formation of new islands as it occurs naturally with accretion.[23]Also, such obligation of omission of a state's sovereignty declaration reflects the “automatic possession”of a state in its subjective will．Dating back to the outset of the modern international law, namely the period after the Peace Treaty of Westphalia, every European country's land still belonged to the monarchy, and was perceived as his private property．The founders of international law such as Hugo Grotius applied the rules of property acquisition in Roman law to the acquisition of national territory．According to the rule of private law, there is no need for any special publicity of the property right to acquire the property, and so does the acquisition of national territory．If such a rule is violated, it implies deficiency in “automatic possession”, and thus affects the state's claim of sovereignty over its newly accreted land or sea area．If a state takes any special steps to claim its sovereignty proactively under such a condition, there will be both factual and legal consequences on the legitimacy of island-building.
Thirdly, the factors of sovereign legitimacy, including the presumption of rights in good faith, and new egalitarianism.
The proposition of sovereignty legitimacy originated from Jean Bodin's theory of sovereignty．On the one hand, his theory states that sovereignty is perpetual, absolute and supreme, as well as not subject to any legal restrictions．On the other hand, it holds that sovereignty is subject to divine and natural law．The underlying trend for this duality in his theory planted the seeds for future legal disputes.[24]In the history of international law, theories such as “absolute sovereignty”, “relative sovereignty”, “sovereignty nihilism”emerged sequentially, underwent academic criticism, and were finally abandoned by practices．In the author's opinion, a state's right of island-building has been transformed inwardly into a sovereign right, which was confirmed by international law．Due to the supremacy of sovereignty, it used to be the domestic law that has mostly been applied to restrain national sovereign acts, but the “separatism”applicable to island-building made international law one of the laws restraining national sovereignty．Safeguarding national oceanic sovereignty is relative, because the island-building state and its neighboring countries impacted by it both stake a sovereignty claim of their own．Therefore, it is of practical significance to seek a balance between equal sovereignty, to explore the boundary of sovereignty legitimacy, and to prevent the assault of sovereignty on the international legal order.
Factor I: The Methodology of Presumption of Rights in Good Faith
The position and will of a state regarding its territorial sovereignty are generally resolute and uncompromising, and therefore island-building in complicated sea areas will inevitably result in a struggle for the redistribution of national interests．Abiding by the supremacy of sovereignty, at the same time following the international law rules, and occupying as much applicable room in domestic law as possible, all states should conduct island-building under the principle of “exercising the sovereign rights, while preserving the legal order of the international waters”．However, neither the domestic legislation nor the international one is perfect．As a result, negotiation and democracy may lead to compromise and concession, the continuous emergence of legal gaps, and even a chaos of arbitrary legal interpretation, law enforcement and judgment．In international law of the seas, there do exist “the rights that are omitted to be listed”but which should have been converted into law; the “new rights”that were not foreseen and therefore failed to get converted into law at the time being; the “inherent rights”, which, although not expressed by law, are in fact included in the explicit rights by logic; or the rights reserved by the law such as “residual rights”[25], “blank rights”, and all the “customary rights”.[26]The interpretation and validation of all these rights constitute the presumption of rights.
As mentioned above, the legal gaps caused by island-building provide the basis for the presumption of the rights．Island-building, as a giant, time-consuming, costly national project, can hardly be contained entirely within the current domestic and international legal systems．However, UNCOLS stipulates the “principle of peaceful sea”, and Article 38 of the Statute of the International Court of Justice contains the rule “to decide a case ex aequo et bono”, both of which undoubtedly show that the settlement of the international disputes and issues of international law should be in good faith．Generally, it is rare for two states to cooperate in island-building[27], but if they do, they should have a full negotiation, and enter into state contracts to restrict their respective rights．In most cases, a state needs to bear the consequences of island-building by another state, which, from the perspective of law, means that when a state is exercising its sovereignty, its legitimacy may cause “spillover effect”of legitimacy during this process．And the direct cause of this “spillover”is the impulse in a state's exercising of its rights, and the characteristic that the domestic law is applicable to the behavior pattern of island-building．Domestic law can establish corresponding rights according to the state's will, and generally such rights are quite broad．However, international law such as UNCOLS does not involve the sovereignty issues of the contracting states, and it just specifies the jurisdictions of coastal states to presume sovereignty.[28]Such non-standard legislation also facilitates a state's exercise of sovereignty.[29]To enable the legal exercise of sovereignty, it is necessary to presume the rights during the “spillover”process, so as to regulate the legitimate sovereign acts of a state, and the acts which are legitimate from the perspective of national sovereignty, but illegitimate in legal consequences.
The author regards that the presumption of rights “in good faith”is not inoperable．There are several ways to presume the rights, namely, the presumption of rights from other rights; from obligations; from the basic rules and spirits of law, together with the purpose of legislation; from the principle that “absence of legal prohibition means freedom”; and from the legitimacy of customary rights.[30]Among all these ways, the boundary between “the rights”and “the obligations”are directly reflected in the “rights”that are presumed．The original “rights”primarily includes the basic rights, multi-rights, residual rights, and blank rights．And the presumed right mainly refers to the right of island-building．The new type of rights of island-building presumed in good faith can help to curb the illegitimate impulse of a state and strain the illegal tendency in its unilateral island-building practice.
Factor II: The Values of New Egalitarianism
The history of international law tells us that its greatest trap is the denial and exclusion of sovereign equality by power politics．The failure of the League of Nations lies in its utmost violation of sovereign equality, as well as the total destruction of international legal order．And according to modern international law, the diplomacy between the strong and weak states emphasizes the application of common legal rules and principles．The weaker states take it that they can rely on the principle of sovereign equality to obtain the right to speak in the international community, and to have a dialogue on an equal footing with the great powers, in order to bridge the gap between them.
The island-building practice of European countries and the United States, due to the difference in geography and geopolitics, generally involves detailed state contracts to constrain their respective sovereignty after full negotiations and consultations, and hence generates few legal disputes．In contrast, island-building by coastal states often generates disputes in the relevant sea areas where their exclusive economic zones and continental shelves overlap．Lack of comprehensive national legal coordination mechanisms and difference in national conditions and the development of rule of law prompted these states to expand their territorial jurisdictions for maritime rights and interests．With the increasing complexity of the international maritime politics and economic environment, the politicization of maritime law has become more evident than ever．The original principle of sovereignty equality is for “equal cooperation”, or as “a shield of the small states against the might of the great powers”[31], while the small states are now abusing this principle．Their purpose of sovereignty exercising is shifted from “independent diplomacy”to “self-esteem diplomacy”[32], continuously challenging the rules of international law, together with the sovereignty bottom lines of other countries, including those of the great powers．Sovereign equality is exploited by the small states as a weapon of international law to launch an attack against the great powers, especially when this great power is one that abides by the rules of international law, and willingly assumes the obligations and responsibilities under the international law．The original intention of sovereignty equality principle established by international law has been reversed, while the reasons are very complex, including the imbalance of the global governance system, the difficulty of reconciling the demands of the states, and the rise of conservatism.[33]And the realconsequence is that the principle of sovereign equality suffered a legal distortion．“This is not a case of one sovereign power falling under another sovereign power, but the transition from a sovereign power—decapitated by the madness that has seized hold of the king's head, and dethroned by the ceremony that shows the king that he is no longer sovereign—to a different power.”[34]In the hotspots where the maritime interests focus, rather than lessening the conflicts among states, the principle of sovereign equality intensified them．By following the practice of certain states, the others may intend to strengthen the principle of sovereignty equality, which totally misinterprets the purpose of international law that “sovereign equality is to coordinate the interests and ethics of all states, and to preserve moral values and more orders.”[35]Such acts are illegitimate in nature, because any acts that violate the real meaning of sovereign equality are full of illegal elements．In judging the sovereignty legitimacy of island-building, new egalitarianism should be upheld, i.e．a review of the original purpose of the sovereignty equality principle closely combined with the international political situation and environment of the island-building sea area．The new egalitarianism focuses on the comprehensive consideration of the national conditions, population, the development of politics and economy, the levels of law and morality of the relevant states, and so on, rather than the previous objective criteria, such as national territory, population and economy．Moreover, the subjective criteria of the new egalitarianism include the judgment and assessment by the international community of a state's behaviors such as its fulfillment of obligations and undertaking of its international responsibilities and its national practice, which cause the judgment criteria of the sovereignty legitimacy of island-building to concentrate more on the balance of interests and substantive equality rather than other factors.
All in all, the legitimacy of island-building is composed of the objective factors, the subjective factors and the factors of sovereign legitimacy．The objective factors such as geographical location and ways of construction are relatively direct, and thus can be easily grasped through geological and engineering evidence．The subjective factors include a state's declaration of will and its obligation of omission in sovereignty declaration．Compared with the objective factors, these subjective factors reflect the will of the entire state, and are demonstrated in the form of state acts, and therefore need to be determined specifically through state acts and practice．However, the factors of sovereign legitimacy are based on both objective and subjective factors, with the notion of sovereignty in the new egalitarianism as their foundation, determining the boundary of sovereignty exercising in island-building by the presumption of rights in good faith．The author holds that it is an important link that cannot be overlooked in the future island-building practice so as to judge its legitimacy by the three factors and to resolve legal disputes arising from island-building.
[1] Zhou Gengsheng, An Outline of International Law, The Commercial Press, 1929, p.37.
[2] Article 3, 4 and 8 are relevant to island-building.
[3] Article 4, 18, 32 and 42 are relevant to island-building.
[4] Mom Ravin, Law of the Sea: Maritime Boundaries and Dispute Settlement Mechanisms, United Nations-The Nippon Foundation Fellow, Germany, March-December 2005, p.24.
[5] See Zhou Zhonghai, On the Residual Rights in the Law of the Sea, Tribune of Political Science and Law, Vol.5, 2004.
[6] See Li Juqian, Air Defense Identification Zone: The Restraints of the Residual Rights on the Freedom of the Sky, China Legal Science．Vol.2, 2014.
[7] Hans Kelsen, Principles of International Law, trans．by Wang Tieya, Huaxia Publishing House, 1989, p.82.
[8] National interests normally include protection of the maritime ecology, renovation of the living facilities for the inhabitants on the island, safeguarding of the fishermen's rights, and the interests for national defense, etc.
[9] For example, the respective practices of Hong Kong's and Japan's construction of the artificial islands and improvement of traffic in their inner waters, and ultimately the completion of Hong Kong International Airport (or Chek Lap Kok Airport), and Kansai International Airport.
[10] Under the trend of reflecting on the notion of sovereignty, a “cautious”definition and an update of the concept is necessary．See Thomas M．Frank, Fairness in International Law and Institutions, Clarendon Press, 1995, p.3.
[11] Article 11 of UNCOLS stipulates that the artificial islands, as “permanent harbour works”, are not qualified to delineate the boundary of the territorial sea.
[12] See Lassa Oppenheim, Oppenheim's International Law (Vol.1-2), revised by Hersch Lauterpacht, trans．by Wang Tieya, Chen Tiqiang．The Commercial Press, p.251.
[13] See Zhang Naigen, The Analysis of “the Internationally Wrongful Acts”in Articles on Responsibilities of States, Jurists' Review, Vol.3, 2007.
[14] See Lassa Oppenheim, Oppenheim's International Law (Vol.1-1), revised by Hersch Lauterpacht, trans．by Wang Tieya, Chen Tiqiang．The Commercial Press, p.258.
[15] Ibid., pp.258-259.
[16] See Liang Shuying, Teaching Cases for International Law, China University of Political Science and Law Press, 1999, p.335.
[17] See Li Xianbo, Huang Ran, On the Legal Application of Contracts: Unitary Theory and Dépecge, Journal of Social Science of Hunan Normal University, Vol.4, 2002.
[18] Up till now, there remains the controversy over the “island”and “rocks”in UNCOLS, together with various viewpoints on their respective legal status．But the major source of law and legal basis to distinguish them is the stipulation in Article 121 of UNCOLS．See Huang Yao, Bu Lingjia, On the Issue of Rocks in Regime of Island in UNCOLS, Journal of Sun Yat-Sen University (Social Science Edition), No.4, 2013; Jin Yongming, An Analysis on the Legal Requirement of Island and Rocks: From the Perspective of Okinotori Atoll issue, Political Science and Law, Vol.12, 2010; Wang Zelin, An Analysis on Regime of Island in UNCOLS, Journal of Huazhong University of Science and Technology, Vol.1, 2006.
[19] An underwater volcanic eruption took place on November 20, 2013, close to Nishinoshima, an uninhabited island among Ogasawara Island archipelago of Japan．It was confirmed by many departments of Japan that a new islet was formed ever since, and Japan plans to include it into its sea territory．See http://news.xinhuanet.com/2013-11/21/c_118234639.htm, visited on Oct.28, 2014.
[20] See List of Artificial Islands, http://en.wikipedia.org/wiki/List_of_artificial_islands#cite_note-1, visited on Oct.28, 2014.
[21] Longkou City of Shandong Province constructed seven artificial islets, which compose the largest artificial archipelago in China．See http://www.sd.xinhuanet.com/news/2010-06/08/content_20005649.htm, visited on Oct.28, 2014.
[22] An Ximeng, The Roles of International Judicial Institutions in the Construction of International Legal Order, Journal of East China Normal University, Vol.4, 2011.
[23] See Hans Kelsen, Principles of International Law, trans．by Wang Tieya, Huaxia Publishing House, 1989, p.81.
[24] See Yu Minyou, A New Concept of Sovereignty Towards the New Century's International Law, Law Review, Vol.2, 2000.
[25] See Mom Ravin, Law of the Sea: Maritime Boundaries and Dispute Settlement Mechanisms, United Nations-The Nippon Foundation Fellow, Germany, March-December 2005, p.24.
[26] See Guo Daohui, On the Presumption of the Rights, Social Sciences in China, Vol.4, 1991.
[27] See Peru and Bolivia signed an agreement to jointly build islands at Lake Titicaca, their boundary lake, in order to preserve the special culture of the Uros Tribe of Incan people of these two countries.
[28] See Robert Beckman, The UN Convention on the Law of the Sea and the Maritime Disputes in the South China Sea, The American Journal of International Law, Vol.107, No.1, p.142.
[29] Vietnam published its Maritime Code in 2005 and its Law of the Sea in 2012．The latter includes the islands in the South China Sea within its territorial sovereignty, and claims that the Law is in conformity with the UNCOLS．Though rigorously protested by the Chinese government, the Law still was effective since 2013.
[30] See Mom Ravin, Law of the Sea: Maritime Boundaries and Dispute Settlement Mechanisms, United Nations-The Nippon Foundation Fellow, Germany, March-December 2005, p.24.
[31] See Shao Shaping, Yu Minyou, The Contemporary International Legal Issues, Wuhan University Press, 2002, p.78.
[32] See Wei Min, The Concept of Small State: Controversy and Choices, International Politics Quarterly, Vol.1, 2014.
[33] See Xu Kaiyi, Ji Weijie, The International Responsibilities of the Sovereign State in the Context of Global Governance, Academic Journal of Zhongzhou, Vol.2, 2014.
[34] Peter Gratton, The State of Sovereignty: Lessons From the Political Fictions of Modernity, State University of New York Press, 2012, p.121.
[35] Samantha Besson, John Tasioulas, The Philosophy of International Law, Oxford University Press, 2010, p.261.