Legal fictions have been extensively examined in the municipal context.Footnote 1 Their existence in international law—with a few noteworthy exceptionsFootnote 2—has, however, long been overlooked. Nevertheless, it does not follow that they do not exist in international law. In fact, quite the opposite is true.Footnote 3 Indeed, scholars have recognized that there is a certain inevitability that legal systems will apply fictions of law. There is no reason why international law would be immune to the presence of legal fictions. Upon closer inspection, public international law is rife with legal fictions. For instance, the doctrines of constructive presence and diplomatic protection (based upon the “Vattelian Fiction”) have long been considered as relying on fictions of law. Indeed, these fictions are certainly helpful ones.Footnote 4 They enable a more effective application of the international legal rules, either by removing loopholes or by rectifying an illogical formal adherence to the written rule in exchange for a more meaningful application of the law—by giving effect to meaning rather than form. For instance, the Vattelian Fiction treats an injury to a national as an injury to their state. This construction enables the state of nationality to engage the procedure of diplomatic protection “to secure protection of that person, and to obtain reparation for the internationally wrongful act inflicted”.Footnote 5
It is possible to identify some constitutive fictions of the international legal order, such as the treatment of ships as if they are floating parts of the flag-state's territory,Footnote 6 and the theory of the exterritoriality underlying diplomatic immunity, treating “the offices and homes of diplomats and even their persons … at all times as though they were on the territory of the sending state and not the receiving one”.Footnote 7 These fictions may no longer accurately describe the international laws that have emerged since. But they once served to initiate, albeit in their initial and crude form, the basis upon which the sophisticated legal regimes have been subsequently built.
Having accepted the premise that legal fictions exist in international law, this paper examines a single specific example of an international legal fiction, one that has recently emerged in the international law of the sea. Space precludes a full assessment of the phenomenon and an evaluation of international legal fictions. Instead, this paper examines the implications of the specific legal fiction analyzed in this paper, an example chosen not only because of its relative recency but chiefly because of the immediacy and starkness of the consequences of the fiction's application.Footnote 8 From this example, the paper identifies some important principles that, it is claimed, shape the effectiveness of fictions in public international law.
The example concerns the Arbitral Tribunal's [Tribunal] treatment of the maritime features in the South China Sea Arbitration (2016).Footnote 9 China has transformed a number of minor islands, islets, low-tide elevations, and submerged features into rather substantial islands in the South China Sea. The scale of the transformation of the features is astonishing. The Tribunal was asked to define the features. It did not have jurisdiction on the issue of sovereignty over the features.Footnote 10
Article 121(1) of the United Nations Convention on the Law of the Sea [UNCLOS] 1982Footnote 11 defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide”. The Tribunal ruled that “the status of a feature [must] be ascertained on the basis of its earlier, natural condition, prior to the onset of significant modification”.Footnote 12 It strictly interpreted the definitional elements of Article 121 UNCLOS. The Tribunal considered that the naturally formed requirement contained in Article 121(1) ensured that artificial modification cannot have any effect in law.
This paper submits that the consequence of such an approach, however justified, relies upon the application of a legal fiction. The Tribunal was prepared to acknowledge that the features had undergone extensive transformation. It was precisely because of this that, in its view, no legal effect could arise from the present status of the features. Instead, only the natural parts of the feature could have effect. For the purposes of defining the feature, the Tribunal concluded that we must treat something as it was, and not as it is. A discrepancy between the reality on the ground as it is today, and the legal position, is clearly made. However, a number of further legal consequences flow from this treatment.
This paper does not claim that the definition of the features is a legal fiction, for this is tantamount to claiming that an interpretation of law is a fiction. Something is not a legal fiction simply because one may not like the outcome or interpretation of the law—the law may even insist on the application of a fiction. This paper explains why a fiction of law must be viewed as a distinctly legal device. In other words, this paper claims that a fiction is produced, not because the interpretation of the law is wrong, but because of the consequences of applying the law in the manner the Tribunal considered Article 121 required.
Section I of this paper examines the concept of legal fictions and their relationship to the notion of reality. It seeks to define what is meant by the term and explain how legal fictions differ from mere lies, errors, and presumptions. It identifies the core constituent elements possessed by all legal fictions. Having done this, the attention of the paper shifts to a concrete example of a legal fiction in international law. Section II examines how the treatment of maritime features by the Tribunal in the South China Sea Arbitration creates a legal fiction. As with the Award, it is not the purpose of this paper to examine the issue of territorial sovereignty. This has been done elsewhere.Footnote 13 Nor does the paper attempt to provide a critique of the South China Sea Arbitration based on its consideration of definitional and entitlement matters. Nor does the paper consider the responsibility of the states involved, including the legality of China's land reclamation activities, or its behaviour in respect of the obligation of non-aggravation. While these matters are worthy of study, they are not within the scope of the present paper.Footnote 14 In short, the paper exclusively focuses on the question of legal fiction, its application in this instance, and the wider lessons we may learn from this particular example.
Indeed, Section III examines the implications of the legal fiction. It first examines the practical ramifications of the legal fiction, asking how the fiction can be applied. Second, the section explores the legal consequences of the fiction, asking what the legal effects of the fiction are. It examines the effect of holding that only the original, natural, parts of the feature may generate a legal consequence. It will be demonstrated that the fiction is impractical and that the legal consequences flowing from its application are uncertain and problematic, and, if logically followed through, produce at best an unrealistic, stark result and, at worst, an unreasonable one.
Finally, the paper reflects, in Section IV, on the lessons we can learn more generally from the application of a legal fiction in the present instance. It concludes with an assessment of the considerations that determine the effectiveness of international legal fictions, proffers warnings about their (mis)use, and identifies those factors that ensure that legal fictions are effective and legitimate. It is the thesis of this paper that effective international legal fictions are ones which cohere with, and give more meaningful effect to, the legal principles that are affected by the fiction and the rationales that underlie them.
I. Legal fictions
Inherent in the notion of legal fictions is the idea that they produce an outcome distinct from “reality”. This assumption is necessarily made within the body of literature on legal fictions.Footnote 15 Indeed, the term “fiction” is defined against “fact”. Merriam-Webster defines fiction as “an assumption of a possibility as a fact irrespective of the question of its truth”.Footnote 16 The terms “reality” and “truth”, generally, refer to the current factual circumstances. Reality, in short, is a term that encapsulates the unfiltered description of the situation on the ground; a reflection of the truthful facts of the situation. Hence, a distinction is maintained in the literature on this subject between pure reality and legal reality.Footnote 17
As human beings we try to make sense of reality, and our behaviour and norms are guided by reality, but it is not always determinative of our action. Fuller explains that “our minds are not mere passive reflectors of the external world; they are instruments for enabling us to deal with that world”.Footnote 18 He considered that:
If the alteration that reality undergoes in our minds is called “falsification” it is because we have been proceeding upon an erroneous theory of truth, a theory that we may call “the picture theory of truth.” If we regard the matter in its true light, this alteration of reality is a sign not of the weakness of the human intellect but rather of its strength. If we dealt with reality as it is, in its crude, unorganized form, we should be helpless. Instead of that, our minds have the capacity for altering, simplifying, rearranging reality. This process of elaboration and alteration is—to preserve the organic simile—but the sign of a good mental digestion; it indicates the vigor and capacity of our minds.Footnote 19
It is not in doubt that the law may produce inconsistencies between the acknowledged facts—reality, if you will—and the legal position. The law is an abstract construct, it is a body comprising principles, rules, ideas, and interpretations which themselves constitute a “reality”: a legal reality. It is this which is then applied to the outside world. But sometimes we may not find the correct analogy, translation, or wording to close the gap between the law and reality perfectly: to truly reflect the factual reality in question. Fuller suggested we ought to “discard the picture theory of truth and recognize that the world of ideas is intended not as a counterfeit of external reality, but as an instrument which enables us to orient ourselves in this world of reality”.Footnote 20 There is great wisdom in Fuller's statement. It recognizes that it is unrealistic for the law to reflect reality one hundred percent of the time.Footnote 21 This may well account for the majority of instances in which the law produces an outcome which differs from reality.
However, what of the situation when the law consciously produces a result that differs from the acknowledged facts?Footnote 22 What is the justification for this? Is this something we should allow? For the second idea contained in Fuller's statement is that the question whether such discrepancies are effective depends on whether they help or hinder us in “orienting ourselves” to reality and in our ability to legally deal with the actual circumstances.
One such legal device that creates discrepancies with reality is the concept of “legal fictions”. Space precludes a full exploration of the notion of legal fictions.Footnote 23 Needless to say, the existence of legal fictions has been well documented throughout legal history. They have been observed to have existed in antiquity,Footnote 24 in Ancient Greek lawFootnote 25 and Roman law,Footnote 26 in religious law,Footnote 27 and in the old English common law.Footnote 28 But they are not resigned to history. Legal fictions continue to be observed in many jurisdictions and across different bodies of lawFootnote 29—including the international legal system.Footnote 30
The notion of a legal fiction should also, at the outset, be distinguished from the more general use of the terms “fiction” or “fictitious”. These terms are often used in a disparaging way to criticize a particular judgment, law, or practice in respect of the law. In contrast, the term “legal fiction” refers to a specific legal device.
However, there is no comprehensive and universally accepted definition of the notion of a “legal fiction”. Fuller defined a legal fiction as embodying either “(1) a statement propounded with complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility”.Footnote 31 This provides us with a starting point.Footnote 32 Indeed, Salmon defined a legal fiction as “a device of legal technique by which a situation is characterized in a manner contrary to reality in order to ascribe to it the legal consequences which flow from such characterization”.Footnote 33 Likewise, Del Mar considers that the concept of a legal fiction involves the “suspension of one or more operative facts leading to the imposition of an associated normative consequence”.Footnote 34
There exist certain core constituent elements that any definition of the concept of a legal fiction ought to include. First, fictions apply falsities. It is recognized that this is done in a manner consistent with the falsity being used as if it is the truth.Footnote 35 At a basic level, therefore, legal fictions apply an untruth; a falsity is favoured and operationalized over the real facts.Footnote 36 Indeed, scholars have suggested that this distinguishes legal fictions from the concept of legal presumptions, because the latter may be rebutted.Footnote 37 However, it is often acknowledged that there is a smaller cleavage between fictions and irrebuttable presumptions. It is true that both arise by operation of law and both apply a falsity. However, all legal presumptions have this effect: Fact A is used to presume the existence of (the inferred) Fact B. In the case of irrebuttable presumptions Fact B exists absolutely. Nevertheless, legal fictions do not work this way; they are not dependent on other facts existing to legitimize their application. Nor can they be overturned by the existence of contrary facts. The falsity is applied ab initio. The idea of a presumption is that, because something exists, we may assume something else does as this is likely to be true.Footnote 38 A fiction treats X as if it is Y regardless of the likelihood involved.
Consequently scholars have regarded fictions to be devices of, at worst, judicial deceitFootnote 39 or, at best, things we ought not to welcome.Footnote 40 The critics say that we should introduce clearer rules of a more transparent nature, rather than rely on fiction.Footnote 41 Thus, Bentham said that legal fictions are “a syphilis, which runs in every vein, and carries into every part of the system the principle of rottenness”.Footnote 42 Similar, though perhaps not as striking, language can be found elsewhere.Footnote 43
The second aspect any definition of legal fictions needs to incorporate is the idea that the falsity is applied “consciously”. This second aspect also reveals the flaw in Bentham et al.'s understanding of fictions. That a fiction is applied consciously indicates that the truth is recognized, not concealed: “it is adopted by the author with knowledge of its falsity.”Footnote 44 A legal fiction is, therefore, distinct from mere errors and lies.Footnote 45 As Fuller explains, “the pretence or assumption involved in the fiction itself … [is not] made with the intention of producing belief in its truth”.Footnote 46 Fictions are not lies, they are not intentionally duplicitous.
Del Mar and Knauer provide a useful understanding of the consciousness of the falsity applied by legal fictions by explaining how “the leap of faith imbedded in a legal fiction does not require unwavering belief but rather a suspension of belief because a legal fiction is not meant to deceive”.Footnote 47 The “suspension” of the truth implies that the real facts are acknowledged. Indeed, it is the very fact of the admission of reality that triggers the application of the legal fiction. It is because of the real facts that the fiction is deemed to be necessary.Footnote 48
Indeed, it must be that a fiction is used, that reality is suspended, for a purpose. Fuller concludes that the reason legal fictions are not considered mere false assumptions “implies a recognition that the statement under discussion, although erroneous, had a certain utility”.Footnote 49 The problem with this understanding is the question of what is meant by “utility”. This may mean something different to the next person.Footnote 50 Equally, matters of definition should be distinguished from matters of evaluation.
Nonetheless, the third constituent element of any adequate definition of a legal fiction needs to acknowledge that fictions modify the usual application of the relevant legal rules. It is for this reason that legal fictions are considered techniques that introduce legal change. Maine recognized that fictions “satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present”.Footnote 51
More recently, Del Mar suggests that legal fictions are:
created out of a need—indeed, often a duty—to render one's resolution of the dispute in a manner that respects coherence (and thus some level of predictability and stability), while at the same time attempting to be responsive and efficient in one's dispensation of justice.Footnote 52
However, defining fictions according solely to this creative role is incorrect. For legal fictions are not concerned with changing the law all of the time. “Many of them … are intended merely as expositions of the law ‘as it is’.”Footnote 53 As Fuller identified, “fictions are to be found not only in the opinions of judges, but in critical treatises written by men free from any of the influences that supposedly restrain the judge and warp his expression”.Footnote 54
Thus, a definition of fictions based on the concept of utility is not useful. Nor is it true that fictions are solely concerned with introducing the incremental legal change. It is true, however, that fictions can alter the usual operation of the legal rules through the application of a falsity, and thereby suspend any legal effect that would otherwise flow from the acknowledged real facts. In sum, a legal fiction can be defined as a tool of legal technique in which something is consciously treated differently to what it actually is, so that the legal rules applicable to the fictional situation apply when they otherwise would not. Having defined the concept of legal fictions, attention must now shift to an example of the international legal fiction at the heart of this paper.
II. South China Sea Award (2016)
A. Background
One of the most controversial, complex, and challenging geopolitical issues currently facing the world is the ongoing dispute in the South China Sea.Footnote 55 The relevant disputants include China, Vietnam, Brunei, Malaysia, the Philippines, and Taiwan. The crux of the dispute centres on the question of sovereignty over a number of maritime features in the area and the potential entitlement to the maritime zones that those features generate. This has resulted in the disputing states attempting to assert control over the features. It has resulted in the ongoing modification of a number of features by the states involved—though primarily by China. Indeed, a number of features have been completely transformed in a very short period of time. Small insignificant maritime features (reefs, low-tide elevations,Footnote 56 and, potentially, tiny islandsFootnote 57) are now undeniably unrecognizable as militarized islands.Footnote 58
Consequently, the question arises as to the effect such modifications may have on the status of the features, and to the extent to which the modifications alter our treatment of them. Such questions were raised in the South China Sea Arbitration. For the very first time, an international tribunal was asked to consider Article 121 UNCLOS in a comprehensive fashion, including the effect of Article 121(3). The text of the Article, given the title the “regime of islands”, reads as follows:
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
It is well established that a territorial sea cannot be generated by an artificial island, installation, or platform.Footnote 59 The Tribunal concluded that the naturally formed requirement, applicable to both islands and low-tide elevations, “indicates that the status of a feature is to be evaluated on the basis of its natural condition”.Footnote 60 It held that:
as a matter of law, human modification cannot change the seabed into a low-tide elevation or a low-tide elevation into an island. A low-tide elevation will remain a low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it.Footnote 61
Consequently, the Tribunal held that the distinction made by Article 121(3) UNCLOS between so-called “rocks” and islands is equally framed by the naturally formed criterion. Having first rejected any geomorphological criteria in defining a “rock”,Footnote 62 the Tribunal turned to the more controversial terms incorporated in the subsection—that an “island” must be able to “sustain” “human habitation” and an “economic life of its own”. Both phrases were interpreted very narrowly by the Tribunal.Footnote 63 The Tribunal considered that only in its natural condition could a feature be determined to be able to sustain human habitation or an economic life of its own. It considered that the phrase “cannot sustain” meant “cannot, without artificial addition, sustain” human habitation or an economic life of its own.Footnote 64 Thus, if the feature has been artificially modified, the current circumstances are not to be taken into account. The Tribunal considered that:
[the] historical evidence of conditions on the features—prior to the advent of the exclusive economic zone as a concept or the beginning of significant human modification [represented] a more reliable guide to the capacity of the features to sustain human habitation or economic life.Footnote 65
In essence, the Tribunal held that the naturally formed criterion required a strict treatment of the features: that only the natural parts of a feature may have legal effect, whereas the artificially modified parts must not. It is necessary to examine the consequences of taking such an approach. A stark discrepancy between the legal position and the actual condition of the features is produced. Indeed, the Tribunal only gave legal effect to the historic condition of the features, prior to the onset of modification, despite the features now being completely unrecognisable compared to their “natural original condition”.Footnote 66
The problem is that most of the features the Tribunal had to examine have undergone substantial modification such that ascertaining the “historic” position is a tall order. Indeed, the Tribunal acknowledged that “in some cases, it would no longer be possible to directly observe the original status of the feature, as the contours of the reef platform have been entirely buried by millions of tons of landfill and concrete”.Footnote 67 Its solution:
In such circumstances, the Tribunal considers the Convention requires that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification. The Tribunal will therefore reach its decision on the basis of the best available evidence of the previous status of what are now heavily modified coral reefs.Footnote 68
This means that 3,168 acres (according to The Asian Maritime Transparency Initiative [AMTI]) of reclaimed landFootnote 69—i.e. the total area calculated as artificial modifications to the features—are ignored altogether: they cannot have legal effect. Historic, or at least dated, charts serve as the factual basis from which we must determine the status of the feature and how we are to deal with it.
Having established these principles, the Tribunal considered their application to the maritime features. None of the features qualified as fully entitled islands in the Tribunal's opinion. Indeed, the Tribunal completely ignored the effect of the undeniable large-scale transformation of the features. For example, Fiery Cross Reef has been the site of 677 acres of reclamation, according to AMTI's estimations. It has been extensively modified. The Tribunal acknowledged that “by November 2015, approximately 2,740,000 square metres of land had been created at Fiery Cross Reef, with sand and rock dredged from the seabed covering virtually the entire platform of the southwestern reef flat”.Footnote 70 It concluded that the installations on the feature “now include a three-kilometre runway, a 630,000-square-metre harbour, multiple cement plants, support buildings, temporary loading piers, communication facilities, defence equipment, two lighthouses, a greenhouse, two helipads and a multi-level administrative facility adjacent to the runway”.Footnote 71 It recognized that Fiery Cross Reef has been transformed into “an artificial island complex, complete with a large runway, covering the entire reef platform”.Footnote 72 Nonetheless, the Tribunal, relying on old maritime surveys and charts,Footnote 73 found that Fiery Cross Reef “in its natural condition, had one prominent rock, which remains exposed approximately one metre above high tide”.Footnote 74 Therefore, it is only this part of the feature that may legally have any consequence. It was a rock and this, according to the Tribunal, remains its legal status.
Likewise, Mischief Reef has been entirely transformed. The Tribunal devoted an entire section to this issue in its 2016 Award.Footnote 75 “Calculations presented by the Philippines estimate that China's construction work has resulted in the creation of 5,580,000 square metres of new land on Mischief Reef as of November 2015.”Footnote 76 The AMTI estimates that around 1,379 acres of reclaimed land have been created on the reef.Footnote 77 It is clear that China has now built an airstrip of considerable size along the north of the reef, complete with a whole host of buildings and facilities. However, the Tribunal held that “China has elevated what was originally a reef platform that submerged at high tide into an island that is permanently exposed”.Footnote 78 Indeed, the previous condition of the feature—and that which may only be given legal effect—was described by the Tribunal as a low-tide elevation. It reached this decision based on the “clear evidence from direct observations—to ‘drying rocks’ by HMS Herald [in 1936] and to rocks exposed ‘during halftide’ in the Chinese sailing directions”.Footnote 79
These two prominent examples underline the clear distinction maintained between the real condition of the features and their legal treatment. They are indicative of the general treatment of the features by the Tribunal. Those features considered to have in the past been naturally above water at high tide were considered to be rocks. These included Cuarteron Reef,Footnote 80 Fiery Cross Reef,Footnote 81 Gaven Reef (North),Footnote 82 and Johnson Reef.Footnote 83 In contrast, those naturally below water at high tide were low-tide elevations. These included Hughes Reef,Footnote 84 McKennan Reef,Footnote 85 Mischief Reef,Footnote 86 Gaven Reef (South),Footnote 87 and Subi Reef.Footnote 88
B. The application of a legal fiction
It is clear, therefore, that a discrepancy exists between the current, actual condition of the features and their legal position. Reality is denied effect, and a different legal reality is created. All three core constituent aspects identified above characterize the fiction applied in the treatment of the maritime features in the South China Sea Arbitration. This is the obvious effect of insisting that only a legal consequence may attach to an historic—natural—condition of a feature and thereby denying its real condition.
The nature of the fiction is characterized by two aspects. First, at a fundamental level, what are now large-scale artificial islands are treated as being low-tide elevations or rocks. Second, such a determination leads to a host of other necessary fictional legal outcomes. These equally, in order to maintain the central fiction, must be present. This is the idea that since the real condition of the features cannot be attributed any legal effect, the legal rules must therefore only apply to the historic/natural condition.
Taking the first core element of the definition of a legal fiction—the idea that a falsity is applied—it is clear that this is present in the Tribunal's treatment of the features. To use the language of Knauer and Del Mar, that which is “suspended” in the present instance is any legal affect given to the actual condition of the features. Thus, a legal reality—that the previous/historic natural feature is only given any legal effect—is maintained in the face of reality. Any newly constructed facilities, reclaimed land, runways, hangars, roads, installations, and harbour works are denied legal effect.
Furthermore, it may be suggested that, rather than “suspending” the acknowledged facts, the Tribunal merely selected one fact over another. It could be claimed that the Tribunal “selected” the dated/historic fact of the natural status of the features, rather than their real factual condition. Indeed, this appears to be consistent with the logic of the Tribunal's approach to the naturally formed requirement in Article 121(1) UNCLOS. However, two observations may be made concerning this line of thought. First, the previous condition of the features no longer exists; it is no longer an observable fact. Indeed, the Tribunal recognized that “the contours of the reef platform[s] have been entirely buried by millions of tons of landfill and concrete”.Footnote 89 The original factual condition of the features is not a real factual basis from which other legal rules can reasonably apply. It is for this reason that it is claimed in this paper that an untruth was indeed applied and favoured over the application of the truth—however much the UNCLOS requires it.Footnote 90
Second, even assuming that the Tribunal selected a set of facts pertaining to the feature's natural condition, one ends up relying on dated surveys and charts from some time ago that once documented the natural condition of the features. Indeed, the Tribunal adopted this method. It is for this reason that the false characterization of the factual condition of the features produces a set of fictional series of “outputs”. While it is commonplace for courts to make judgments about a state of affairs in the past, the Tribunal relied upon the past to make a determination of the present. The consequences of such a position means that one is maintaining, however one wishes to describe it, a set of facts that simply cannot be true in reality—at least not any more.
Indeed, it is acknowledged that there are good reasons for adopting this approach. It is arguable that the principle that no legal effect can be given to the illegal fait accompli (ex iniuria ius non oritur) requires such an approach. However, Forsyth reminds us that “nullity is not metaphysical (or redundant)”Footnote 91 and that “the actual existence of a void act may serve as the basis for other decisions”.Footnote 92 The implication of the Tribunal's approach means that we must treat the extent of the feature in a manner contrary to its real extent. We must treat the baselines around the feature—if any are capable of existing—as being located only along the low-water mark of the extent of the natural feature that no longer exists. We must treat the rights and obligations of the sovereign state over its territorial sea as beginning from, and extending to, a position that can only be defined by reference to a non-existent feature. We must treat the rights states have over another state's territorial sea, EEZ, or on the high seas as applicable to those spaces “seaward” of the baselines constructed along a non-existent natural feature.
The second aspect of legal fictions—identified in Section I—is that the falsity is applied consciously. In application to the treatment of the features by the Tribunal, the falsities were applied consciously. Treating a feature in law different to its real condition is clearly favouring a falsity over reality. For it was because of the very fact of the acknowledged actual condition of the features that the Tribunal decided to apply the “naturally formed” requirement as strictly as it did. It is also the case that the falsity was not applied in error. The Tribunal intentionally applied a legal fiction—while not recognizing that this was the effect of their decision—through its interpretation of what Article 121 required in application to heavily modified features. The distinction between the previous natural condition and the current artificial condition of the features was clearly made.
Third, it was precisely because the actual facts were recognized that led the Tribunal to interpret Article 121 as applying strictly only to the natural parts of the feature. The Tribunal was clearly swayed by the noble desire to guard against providing an incentive to engage in island building and the ability to render swathes of the high seas as subject to state control—from making resources available to all, subject to the EEZ regime.Footnote 93 Thus, the fiction in the present instance arose to modify the usual application of the rules. It was previously explained that some scholars characterized legal fictions as judicial techniques that introduce legal change. However, it was also suggested that this is inaccurate. Not all legal fictions introduce legal change. This fiction is such an example. The Chinese modification of the features was denied legal effect. Thus, the “naturally formed” rule was applied. Indeed, it was the strict application of the requirement that meant that the falsity was consciously introduced. The Tribunal concluded that the features must be treated differently from their actual condition. The legal rules must, then, logically apply only to the natural part of the features. It is here that the fiction begins to modify the application of the legal rules. For, as described above, the consequence of mischaracterizing the features, of insisting on a factual basis that no longer exists, means that the baseline regime, the rights, and duties of the sovereign state, the rights and duties of third states, and the demarcation and delimitation of maritime zones, are all affected. The Tribunal did not consider the features to exist as artificial islands, subject to Articles 60 and 80 UNCLOS,Footnote 94 but rather as how they previously naturally existed, prior to human modification.
III. Implications of the legal fiction
It is not the mere fact that a discrepancy exists as between the legal position and the real situation of the features that makes the fiction problematic. For it will be recalled that this alone does not make fictions bad: all bodies of knowledge defined by language (law included) will inevitably produce such discrepancies. It is simply not realistic for the “picture theory of truth”, as Fuller described it, to be truly respected and replicated in law. Rather, the legitimacy and effectiveness of legal fictions require the application of a different test. They require us to acknowledge the positive role fictions serve in any legal order and also to recognize the dangers of relying on a fiction. It is not straightforwardly the case that a falsity alone is defective. The effectiveness of a fiction is determined according to its assistance in applying the legal rules that it effects. In other words, a legal fiction, as distinct from mere arbitrary pretences, must demonstrate fidelity to the legal rules. It must be this fact that ensures that the fiction is a “legal” fiction. An effective legal fiction gives effect to, operationalizes, and facilitates the application of the rules: it remedies a defect in the legal rules, or it emerges to provide a better application of the rules. This is not a dry theoretical test. It asks, essentially, what is the effect of the fiction. What are the practical and legal consequences of applying the legal fiction? Is this consistent with, and does it assist the application of, the legal rules the fiction effects?
A fiction that concerns the determination and treatment of maritime features will inevitably produce a host of complicated legal and practical ramifications. Identifying that a feature is an island, rock, low-tide elevation, or a submerged reef has significant implications. Determining that a feature is a rock, while denying it the ability to generate an EEZ and a continental shelf, means that it will generate territorial sea and a contiguous zone.Footnote 95 Determining that a feature is a low-tide elevation means that it may possibly generate a territorial sea too. This, however, depends on the low-tide elevation being “situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island”.Footnote 96 The result in the case of a low-tide elevation situated beyond the territorial sea is that it cannot be appropriated and cannot generate any maritime zones. The regime of the high seas applies instead.
Nonetheless, to generate any maritime zone there needs to be a point from which the zone/s is/are calculated, a baseline that determines the breadth of the zone, its limits, and contours. For the maximum breadth of the territorial sea is 12nm, and the maximum breadth of the contiguous zone from the baseline is 24nm. Determining the location of the baseline is, therefore, essential. According to Article 5 UNCLOS, “the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State”. Other forms of baselines, including the straight baseline method,Footnote 97 archipelagic baselines,Footnote 98 and bayFootnote 99 and riverFootnote 100 closing lines, are provided in the UNCLOS. However, none would be applicable to the features concerned in the South China Sea Arbitration. Consequently, the low-water line of the features must be identified. Following the logic of the fiction, this means that the natural/historic low-water line—or the best available evidence of it—must be the only low-water line given effect. The actual, current, low-water line defining the present interface between the modified features and the South China Sea, must be denied any legal effect.
To apply the evaluative test described above to the fiction examined by this paper, this part consists of two subsections. Section A deals with the practicalities of applying the fiction. It asks how it is that the fiction can be applied, including asking the question whether its application is ever possible. Section B examines the consequences of its application—assuming this is possible. It addresses the legal ramifications of the fiction.
A. The practicalities of the fiction
Applying the Tribunal's interpretation of what the naturally formed criterion required to the maritime features is a difficult task. It will be recalled that the effect of the Tribunal's conclusions is that only the natural parts of the feature may be given legal effect. The Tribunal even stated that, in the event the natural part of the feature is no longer observable as a result of the modification efforts, then its original natural contours may be identified by having recourse to the “best available evidence of the previous status of what are now heavily modified coral reefs”.Footnote 101
However, as the Tribunal recognized:
In some cases, it would likely no longer be possible to directly observe the original status of the feature, as the contours of the reef platform have been entirely buried by millions of tons of landfill and concrete. In such circumstances, the Tribunal considers that the Convention requires that the status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification. The Tribunal will therefore reach its decision on the basis of the best available evidence of the previous status of what are now heavily modified coral reefs.Footnote 102
Likewise, the Tribunal observed that “China's dredging, artificial island-building, and construction activities has had the effect of obscuring evidence of the natural status of those features”.Footnote 103 Even more striking, the Tribunal recognized that China “has permanently destroyed—through its land reclamation and construction of artificial islands, installations and structures—evidence of the natural condition of Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, and Subi Reef”.Footnote 104
The task of identifying the natural part of the modified feature is, therefore, difficult. It leaves the possibility open that such evidence may not even be ascertainable in the first place, since charts, maps, surveys, and photographic evidence may not exist or be accurate enough. This complicates the necessary task of identifying the low-water line. As explained above, the effect of the fiction is to give effect only to the old, original, natural low-water line that existed prior to the onset of significant modification. It is this baseline only that may generate a legal effect, and from which the maritime zones that the feature may or may not be entitled to are calculated. The baseline is necessary to determine where any maritime zone both begins and ends.
To practically implement the Tribunal's fiction requires the application of imaginary historic baselines, which could, as recognized by the Tribunal, be rendered guesswork. A review of the material the Tribunal relied on to determine the “natural” status of the features reveals the complexity of the task. The surveys and charts are a product of both their time and their original purpose. It is clear that we now have more accurate methods available to us and the surveys were not conducted with the task of identifying the location of the appropriate base points from which the baselines around the feature are to be drawn. The materials may be suitable to simply determine that a natural feature originally existed and that it was smaller and below or above high tide, in contrast to the present condition of the feature. But they are not suitable to the task of ascertaining the baselines around the extensively modified features. Furthermore, even in the materials used by the Tribunal there are discrepancies concerning the size and location of some of the features. Indeed, one would expect nothing less. For natural features are subject to the natural processes of erosion and accretion. Features expand, shrink, submerge, and emerge out of the sea.
The question arises where precisely such baselines would be drawn in relation to the present state of the features. Working on the principle that only the original natural position of the feature may generate any baseline, the low-water line must therefore necessarily exist in a location other than its real location. More precisely, the low-water line must, in application to the features examined by the Tribunal in the South China Sea Arbitration, be in a location now currently buried under tons of reclaimed land.
B. The legal consequences of the fiction
Indeed, the difficulties of locating the low-water line and of applying the baseline regime around the features further complicate the demarcation of the maritime zones. This in turn means there is little clarity about the rights, freedoms, and obligations that states have over the zones that may or may not be generated by the features. It is not only that the fiction complicates the application of the baseline regime, but that this subsequently results in further associated problems. That the old natural low-water line is the location from which any maritime zones will be calculated, means that the non-natural parts of a feature may legally have to be considered as the sea. Areas of reclaimed land, the site of facilities, hangars, runways, and helipads will therefore need to be treated as if they are the sea, for everything “seaward” of the legal baseline is the sea.
Once again, the need to determine the location of the low-water line is underlined. In the case of those features determined by the Tribunal to be “rocks” in their natural condition, this means that the parts of the feature “seaward” of the original/natural low-water line must be considered as pertaining to the feature's territorial sea. Comparing the dated charts produced, for instance, by HMS Rifleman in 1866 of Fiery Cross Reef,Footnote 105 or of HMS Herald in 1931 of Johnson Reef,Footnote 106 with the most recent satellite imagery, it becomes clear that this produces a startling result. Large portions of the feature, including potentially its runway, reclaimed land, and buildings will necessarily be treated as the territorial sea.Footnote 107 However one produces one's best estimate of the low-water line, whether it is drawn around the fringing reef or around the prominence of the old natural “rock”, the same result is achieved: terra firma must be considered as the territorial sea.
Applying the regime of the territorial sea over the modified parts of such features is problematic. Article 17 UNCLOS provides that “ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea”. The right of innocent passage, according to Article 18(1) UNCLOS,
means navigation through the territorial sea for the purpose of: (a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or (b) proceeding to or from internal waters or a call at such roadstead or port facility.
Article 18(2) UNCLOS provides that such passage must “be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation.” The fiction means that this regime necessarily applies over those parts of the feature which must be deemed as the territorial sea. It enables other states to assert such rights over what is now, undeniably and irreparably, terra firma.
It is also contrary to the regime of innocent passage. It raises the question of how far this fiction—however just it may be to deny the ability of China to construct such islands and then claim vast swathes of contended sea—should be maintained. How far ought the regime of innocent passage be considered to apply? Clearly such passage is impossible, and even if it were possible, would such passage ever be described as “innocent” or as “passage”? Would the application of the regime of innocent passage ignore the existence of terra firma and treat any method of passage that is possible—which would require travel by land over the features—as valid? These are clearly hypothetical questions, but they necessarily arise as a result of the fiction.
Also, would submarines and other underwater vehicles be able to innocently navigate? For Article 20 UNCLOS makes it clear that “in the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag”. Is this still applicable? Would the state's power in Article 21 UNCLOS to adopt laws and regulations concerning the innocent passage of vessels in its territorial sea apply? Could China, for instance, for the purpose of safe navigation be required to regulate the passage of vessels away from the modified parts of the feature. Or would the fiction need to be applied in full and require that this reality be denied too?
In the case of those features determined to be low-tide elevations that are located within 12nm from another island or mainland of the same state, the regime of the territorial seas could apply. Thus, the previous considerations are also applicable. But, in the case of those features determined to be low-tide elevations that are located more than 12nm from another island or mainland, either the regime of the high seas applies or, in the case of those low-tide elevations within a state's EEZ, the regime of the EEZ applies. The consequences of the fiction in these circumstances are even more incredible. It means that the fundamental freedoms of the high seas are enjoyed by all states over the features—even in the case of low-tide elevations located within a state's EEZ, as is the effect of Article 58 UNCLOS.
Vast amounts of reclaimed land will necessarily simply be treated as the high seas, for which other states have those freedoms mentioned in Article 87 UNCLOS. Such freedoms include that of navigation; overflight; the freedom to lay submarine cables and pipelines; to construct artificial islands; to fish; and, to conduct scientific research.Footnote 108 However, it is obvious that this is simply not possible. The freedoms of the high seas are not compatible with them being exercised over what is now terra firma—even if China allowed it. Simply put, you cannot navigate, fish or lay submarine cables and pipelines on land.
The problem with the fiction is that the “suspension” of the facts involved mean that, to maintain the fiction's coherence, the facts also have to be “suspended” when answering other applicable legal questions. It must involve the treatment of sections of now terra firma to be treated as if they are the sea. It must involve the application of the regime of the territorial sea or that of the high seas. This means the ridiculous legal consequences of the application of the right of innocent passage and the freedoms of the high seas must necessarily follow—unless, of course, we are prepared to contemplate carving out a unique regime especially for this fiction.Footnote 109
In sum, the practical difficulties arising from the fiction's application are indicative of the complexities that it generates. While the fiction may intellectually cohere with the expectations of Article 121 UNCLOS, the fiction applied, as a consequence, is essentially unfeasible. The legal consequences, furthermore, produce absurd and illogical results which raise the questions: How far may we maintain ad infinitum that something which exists, undeniably so, does not? How far are we prepared to apply the fiction even in the face of not only a completely different factual reality but also a series of difficult legal questions that then emerge in order to maintain its intended effect?
To return to Fuller's simple, though fundamentally effective, test of the utility of fictions (i.e. the question whether they assist us in orienting ourselves to reality), the following may be observed. The effect of the fiction not only denies any legal effect to the parts of the features that are not naturally formed, it also insists on giving effect only to those parts of the features that can be so described. However, this is practically difficult to implement—perhaps even impossible to do so. For the reasons explained above, the fiction conflicts with the legal regimes of the territorial sea and the high seas. The freedoms of the high seas and the right of innocent passage are not compatible with the fiction; they cannot logically apply as the regimes were intended to be applied.
It is clear, therefore, that the fiction's consequences and the objectives of the legal rules the fiction affects are not in harmony. It is important that states are able to have clarity about where the freedom of the high seas begins and ends, and thus where the limits of coastal state jurisdiction extend to. The fiction only complicates this. That it is practically difficult to implement means it may never be possible to have clarity on any of these issues.
The question whether the fiction serves to further the goals of the underlying legal rules exposes an inherent tension at the heart of the law. The fiction fell on one side, arguably, at the expense of the other. It is undeniable that if the only legal rule applicable was that of denying any legal effect to all non-natural formations, then the fiction is clearly effective. Indeed, it furthers the policy goal of denying any legal consequence to China's extensive and environmentally damaging artificial constructions. Nevertheless, it is not the sole task of the regime of islands to deal with the consequences of artificial islands. Indeed, the UNCLOS provides for a particular set of rules to apply to artificial islands in Articles 60 and 80, and it has always been considered that artificial islands cannot generate a territorial sea. In terms of the environment, a number of provisions in the UNCLOS apply and were applied against China by the Tribunal in its 2016 Award. The fiction in this case goes beyond this. It does not end with the denial of a territorial sea; it logically insists on the maritime zones being calculated from a set of non-existent and perhaps unascertainable baselines.
On the face of it, the fiction may also be justified on the basis that it denies the illegitimate territorial encroachment of the high seas by China through its artificial modification of maritime features. However, in other contexts the law allows for such an infringement of the high seas by giving effect to artificial modifications, such as land reclamation and the extension of harbour works along existing shorelines. Furthermore, the extent to which the fiction facilitates the application of the regime of the high seas is dubious. Not only does the fiction pose the practical problem of ascertaining the appropriate baselines on the much-changed features, but it also throws into doubt how we are to treat artificial islands in the high seas.
The application of the fiction appears to indicate that, while a feature may, in reality, be transformed from an insignificant natural feature into an artificial island, the transformation of the feature's legal status does not necessarily follow in kind. For if we are to give legal effect only to the prior natural status of the feature, any artificial modification cannot be recognized. Despite this, the Tribunal also continued to describe the modified features as “artificial islands”.Footnote 110 It also considered the application of the rules of the creation of artificial islands in another state's EEZ to Mischief Reef. Thus, there is an inherent tension in the Tribunal's decision. Consequently, the argument that the fiction supports and clarifies the application of the regime of the high seas is unconvincing.
All in all, the fiction throws up further legal questions. It produces uncertainty—the very reason to codify the law of the sea (culminating in UNCLOS 1982) in the first place. The regimes of the territorial sea and high seas do not easily fit with the application of the fiction. Indeed, the fiction produces an untenable legal position such that if we are serious about applying it, then its application would require a host of other pretences flowing from the falsity, including that reclaimed land is, legally, the sea.
The application of the fiction is attributable to the Tribunal's dogmatic interpretation of the naturally formed requirement in Article 121(1) UNCLOS. Not only do the practical and legal consequences of the fiction demonstrate that its application is problematic, but also the “regime of islands” in UNCLOS does not adequately address such issues as those put before the Tribunal. The application of such a black-and-white approach, i.e. that maintained between those features naturally formed and those that are not, fails to account for the grey areas, such as that here, where previously naturally formed features are artificially extended or modified. The bluntness in approach led, in the South China Sea Arbitration, to the application of a fiction. The efficacy of its application is doubtful.
The Tribunal could have avoided many of the problems associated with the introduction of the fiction by treating the features as artificial islands, thus retaining the policy of not rewarding China's artificial construction activities by treating the features as islands proper. This would have avoided a pretence and it would have enabled the recognition of the current reality—of the present status of the coastline albeit artificially modified. In turn, this would have prevented an illogical application of either the regime of the territorial sea or high seas over what is now clearly dry land complete with a host of substantial man-made facilities. But it is noteworthy that only in the context of Mischief Reef, located within the Philippines’ EEZ, did the Tribunal consider the application of Article 60 UNCLOS to one of the modified features.Footnote 111 Even then, the Tribunal concluded earlier in its Award that “Mischief Reef is a low-tide elevation”.Footnote 112 This serves only to emphasize that the Tribunal attributed legal salience only to the natural potions of the features, even if that meant relying on historical and potentially poor evidence of their previous status, and even if that would logically mean that portions of the features would legally be deemed to constitute parts of the sea.
Perhaps the Tribunal did not treat the features as artificial islands because this would be tantamount to rewarding the building activities by attributing quasi sovereign control over the disputed features to China. Indeed, the Tribunal did not have jurisdiction to review such questions of sovereignty and control. While treating them as artificial islands clearly precludes the acquisition of any of the maritime zones, it is still a recognition of the occupying state's control over the area, or at least over the feature and up to 500 metres to the extent of the safety zone.
IV. Conclusion
The application of the fiction in the present instance raises important questions about the nature of legal fictions in general. First, it raises the question of the extent to which the law may fly in the face of reality. To what extent may falsities be effectively applied? It has been a consistent theme of this paper that the notion of the law applying a falsity is not in itself reason to object to the use of fictions in law. That being said, there is clearly something wrong when the law produces a result that leads to the situation described above: that vast amounts of land complete with buildings and even runways are treated in law as if they are the sea. Whatever policy goals are served by its application, and it is not in any doubt that denying the expansionist territorialization of the high seas through artificial creations is an admirable objective, there is clearly something defective with the law if such a stark and unrealistic result is produced.
The problem is that the fiction cannot operate in a legal vacuum, it cannot be left in the abstract. If we want to apply it, it must be practically implemented. But it is difficult, if not impossible to do so; even the Tribunal recognized this fact. The problematic legal consequences which flow from the fiction offer two important lessons if we are to continue using fictions in law. First, an effective fiction is one that assists the application of the legal rules it affects. Second, an effective fiction is a limited one. That is, the falsity is limited to the purposes of applying the fiction; it does not spill over and alter the application of other legal regimes.
The fiction of the treatment of the maritime features in the South China Sea Arbitration fails the first test. The fictional treatment of the features extends beyond the mere determination of their status. It affects the regime of the territorial sea, the high seas, the baseline regime, the maritime zones, and the rights of states in those zones. It cannot possibly assist and facilitate the application of these legal regimes. Baselines need a factual point from which they can be drawn. The extent of the territorial sea, maritime zones, and high seas can only be calculated when such baselines are drawn. Only then will there be clarity about what rights and duties apply, and where. The fiction complicates and distorts this and renders the exercise illogical.
The fiction also fails the second test. For the falsity (i.e. the non-recognition of the non-naturally formed parts of the features) necessarily engages those other legal rules described previously. Since nullities are not metaphysical, the falsity necessarily influences the application of other legal rules. The problem with this is that those other legal regimes may not share the same objectives served by the application of the fiction. The falsity could distort their application and lead to a result that is contrary to the objectives of the law. Thus, the fiction in the present case contradicts the application of the other applicable legal regimes. It is hardly the case that the fiction helps us “orient ourselves to reality”. It is submitted that the fiction achieves the opposite result.
Acknowledgements
I would like to thank Professor Sir Malcolm D. Evans KCMG OBE, University of Bristol, Professor Jiří Přibáň and Dr Richard Caddell, both of Cardiff University, for their thoughts and assistance on earlier versions of this paper.
