guyen Thi Lan Anh[1], Pg.D.
Islands may generate maritime zones in the same foot as land territory. This possibility led to the fact that islands have been made use of to generate excessive maritime claims in state practices. To some extent, these practices are diluting the coherence and the main purpose of the regime of islands in international law. Such excessive claims, fortunately, are seldom accepted in the case of standing-alone-islands. In most other scenarios, particularly with the wrong-side and distant islands, the effect of islands in maritime delimitation has been significantly reduced in the practices of both states’ negotiations and judgments of judicial bodies. This reality will be a high alert for the big illusion of states in using islands for their maritime claims. In connection with the South China Sea, the features may also entitle limited maritime effect. Acknowledgement of such prospect may help the parties better manage the disputes in the South China Sea as well as constructively strive for dispute settlement.
From a point of land in the mid ocean, states can have the 12 nautical miles territorial sea claim and own 452 square miles around that point, or have exclusive economic (EEZ) and continental shelf claims and own up to 125.600 square miles. Such a large area of maritime zones will undoubtedly bring immense benefit for the coastal states and justify the use of islands in generating maritime zones. The maritime zones generated from islands, however, are not unlimited and subjected to the stipulation of the international law of the sea. This paper will first analyze the current status of the international law governing the legal regime of islands. It then examines the state practices in using islands in generating maritime claims as well as the role of islands in maritime delimitation. The general framework of international law and state practices will be applied to the context of the Spratlys in the South China Sea and on that basis, the paper will propose some recommendations on the legal regime of the Spratlys for the parties concerned.
Maritime effect of islands under UNCLOS
Maritime effect of islands is provided for under Article 121 of UNCLOS. The article contains three paragraphs.
Paragraph 1 sets out the distinction between islands and other elevations by providing that “an island is a naturally formed area of land, surrounded by water, which is above water at high tide”.[2]
The criterion of “naturally formed area of land” sets out the strict requirement that primarily, an area of land will only be considered an island if it is a product of nature. It eliminates the possibility of applying the Article to artificial islands, i.e. islands formed by the interference of human beings. Furthermore, the requirement of being “above water at high tide” establishes the distinction between an island and a low tide elevation as the common characteristic between an island and a low tide elevation is “a naturally formed area of land surrounded by water” but an island is above, whereas a low tide elevation is submerged at high tide.[3]
As defined in paragraph 1 of Article 121, an island is an area of land which is naturally formed, paragraph 2 further stipulates the equal legal effect of islands and continental land in generating maritime zones. However, if some islands are very small and do not sustain human habitation or have economic life, it is unreasonable for them to have all maritime spaces because this will cause a significant distortion in maritime delimitation. In this light, Article 121.3 is necessary to reduce the distortion by limiting the maritime zones of rocks. That is to say the purpose of paragraph 3 of Article 121 is to set out the conditions for islands in order to have equal status with other areas of land. This is a limitation to avoid distortion, not the expansion of maritime zones for every island.[4] Therefore, it is submitted that similar to the approach of paragraph 1, islands under paragraph 3 also need to be tested in the light of their natural attributes without any artificial addition. However, the two conditions of paragraph 3 stand individually, not in combination, i.e. an island which meets one of the two conditions will be entitled to all maritime zones.[5] Bearing in mind the purpose of the Article will be helpful in the interpretation of these conditions in fact.[6]
Article 121.3 provides that “rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. UNCLOS does not clarify the definition of rock, but from the stipulation of Article 121.3, one can argue that in terms of size, rock must be smaller than island, thus not qualifying to generate all maritime spaces. This assumption is clear when one examines the travaux préparatoires of the Article. During the travaux préparatoires of the Article in UNCLOS, the size of island, a quantitative criterion, was recommended. For example, in the draft of the group of 14 African states, the size of islands was considered one of the relevant factors to determine the maritime spaces of islands.[7] Romania also proposed a clear distinction among islets, small islands and large islands and “less than one square kilometer” was suggested to differentiate islets from islands.[8] Unfortunately, these efforts were not successful and the size of islands was not one of the criteria of Article 121.3 to determine the capacity of islands to generate maritime zones.
Although not being an explicit criterion in the text of Article 121.3, from state practice and case law, the size of island still has certain significance in clarifying the application of this article. For example, in the Jan Mayen case,[9] as the Jan Mayen Island is 54.8 kilometers in length, the International Court of Justice (ICJ) stated that because of its size alone Jan Mayen is not a rock.[10] This means, in terms of size, if an island is big enough, it may avoid the test of Article 121.3 and enable it to generate all maritime zones. On the other hand, the case of Rockall with a size of 0.624 square kilometer is assumed to be an example of a typical rock.[11] However, this assumption is still controversial, as it has not been confirmed by other state practice and judgments of the ICJ. A similar controversy was seen in the arguments for maritime spaces of a tiny island, the Aves Island. With a size of approximate 0.066 square kilometer (550 meters in length and 120 meters at the widest), Venezuela claims that the island has full maritime effect to generate all maritime spaces. This claim was recognized by the US, France and the Netherlands but was opposed by all other Caribbean states.[12] Therefore, the consensus on the minimum size of island that meets the test of Article 121.3 in state practice has not yet been reached.
In an attempt to clarify the size of islands in the application of Article 121.3, a reference to the definition of the International Hydrographic Bureau that small islets are from 1-10 square kilometers, islets are from 10-100 square kilometers and islands are from 100 - 5x106 square kilometers was made.[13] Rocks in Article 121.3 are argued to be smaller than small islets, thus according to this hierarchy, rocks must be less than 1 kilometer.[14] In order to clarify rocks and islands, Hodgson suggested that rocks should be less than 0.001 square mile, thereafter, islets from 0.001-1 square mile, isles from 1- 1,000 square miles and islands from larger than 1,000 square miles.[15] From the definition of the International Hydrographic Bureau to the suggestion by Hodgson, rocks are nearly 400 times greater or smaller in terms of size. Therefore, it is difficult to conclude which figure will be used to define rocks.
Given the omission of “size” in travaux préperatoires, paragraph 3 includes only two conditions that ‘sustain human habitation’ and ‘economic life of their own’. Unfortunately, relying on the conditions set by Article 121.3 to classify which islands qualify as generating all maritime zones is even more difficult and controversial because the two conditions of Article 121.3 are worded in a vague and imprecise manner, with no quantitative criteria to assert what will constitute either “sustaining human habitation” or “economic life”.[16]
With regard to “sustaining human habitation”, the issues which will be raised in application are contained in the interpretation of each word in the phrase. First, “human” in the condition refers to ordinary people, i.e. the presence of civilians or military troops or scientific staffs will be accepted. Although there is a suggestion that only civilians qualify as human in this consideration[17], it is still difficult in the case that the habitation of a civilian is a result of an encouragement and subsidy policy of a government in order to make a small island qualify under Article 121.3. Second, “habitation” may be interpreted as covering both long-term habitation and short shelter.[18] In order to qualify, the meaning of habitation, the number people inhabiting an island, is another controversial issue. There is a suggestion that 50 people are the minimum number to be considered as “habitation”,[19] but from the travaux préperatoires and state practice, there is no evidence to confirm that suggestion.[20] Finally, the ability to “sustain” refers to the actual ability, i.e. the existence of human habitation in the past and the present, or a possibility in the future is enough for the requirement of paragraph 3. If the capacity to “sustain human habitation” is accepted for the future, which conditions will be required for having that capacity? Dealing with this problem, many scholars believe that the availability of vital conditions for human living such as fresh water, cultivated land, food and shelter is a decisive test.[21] However, with the development of modern technology, the conditions which allow human living may change and thus claimants may not need the availability of all these conditions.[22]
With regard to the second criterion of Article 121.3, it is not clear whether ‘economic life of its own’ means economic significance or economic resources of the island. If it means economic significance, it is hard to say that any island possesses no economic significance because of the potential resources of the surrounding seawater. If economic life requires the presence of economic resources, whether it requires the availability of valuable natural resources on the island itself or just the availability of valuable natural resources in the adjacent waters around the island is sufficient to qualify the Article.[23] In addition, if economic resources are accepted in surrounding water, what extent of waters will be con-sidered adjacent, within the territorial sea or within the exclusive economic zone?
The difficulty in interpreting Article 121(3) leads to different approaches for the legal regime of tiny islands.[24] Whatever the approaches are, the interpretation of the Article must be “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.[25]
Islands and maritime claims in state practices
otential of generating maritime zones led to the fact that islands have been made use of to claim maritime zones in state practices. Reviewing state practice relating to the application of Article 121.3, one can find two types of claims: reasonable claims that are compliant with Article 121.3 and excessive claims that somehow contradict the purpose of Article 121.3. State practice can be seen from unilateral legislations, bilateral treaties and judicial decisions. Compliant state practice can be seen from an example that in 1997, after the United Kingdom ratified UNCLOS, it redefined the fishery limit off Rockall of 200 nautical miles from the stipulation in the Fishery Limit Act of 1976.[26] By issuing a reservation with the view that rocks and small islets should be ignored in maritime delimitation, Taiwan also expressed its view that these features could not generate maritime zones, thus indirectly supporting Article 121.3.[27] The 1986 Federal Act relating to the sea of Mexico also repeated the wording of Article 121.3 of UNCLOS[28] and, as a result, the Alijos has been claimed as Rocks.
In addition to compliant practice, there are a number of other examples which are not in conformity with Article 121.3. This can be seen from the claims of full maritime zones for small features such as the Aves Island of Venezuela,[29] the Northwestern part of Hawaii of the United States,[30] the Ceva-i-Ra of Fiji,[31] L’Esperance Rock of New Zealand,[32] etc.[33] These islands are claimed to have extensive maritime zones, even though they are uninhabited and do not really have an economic life of their own and some of these claims have been successful, e.g. the Aves Island of Venezuela receive recognition from many parties concerned.[34]
Albeit it is encouraging that state practice which conforms with Article 121.3 remains the common trend and state parties to UNCLOS still consider Article 121.3 their treaty obligations, the existence of the resistant state practice still light up the hope for those who want to make use of islands to expand their maritime zones. This hope, however, may turn into big illusion if further state practices concerning maritime delimitation are examined.
(Continued on next issues)
[1] Institute for East Sea (South China Sea) Studies, Diplomatic Academy of Vietnam. The opinions expressed in this paper are those of the author and do not necessarily represent any official position of the Diplomatic Academy of Vietnam.
[2] This definition was also stipulated in Article 10(1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone.
[3] Article 13 of UNCLOS. For further discussion on the elements constitute an island under Article 121(1) see John Briscoe, “Islands in Maritime Boundary Delimitation” (1988) Ocean Yearbook, 14 at 15-20.
[4] An analogy can be drawn here. If Article 60.8 on the legal regime of artificial islands is stipulated to discourage nations from building artificial islands solely to expand their jurisdiction over the ocean resource, Article 121.3 should also be interpreted to discourage nations from populating their uninhabited insular possessions for the same purpose.
[5] In the travaux préparatoires of UNCLOS, Article 121.3 was drafted as “…human habitation and economic life”. If this phrase was kept in the official text, an island would have to qualify both conditions. However, the word “and” was replaced by “or”. Therefore, meeting either of the two conditions will be enough for an island to generate all maritime zones. For details, see UNCLOS III, Official Records, Vol. III, p.195 (The replacement of the word “or” was introduced in the third session of the conference in the Informal Single Negotiation Text.) However, the Norwegian translation of Article 121(3) only uses a comma to separate the two conditions of the Article. This comma can be interpreted to imply in Norwegian grammar that the two conditions must both be fulfilled. For details, see Marius Gjetnes, “The Spratlys: Are They Rocks or Islands?” (2001) 32 ODIL, 191 at 194; Also, during the negotiation of UNCLOS III, Denmark was strongly in favor of the interpretation that the word “or” means “and”. (Statement of Denmark, The Law of the Sea, Regime of Islands - Legislative History of Part VIII (Article 121) of the UNLOSC (UN Office for Ocean Affairs and the Law of the Sea,1988), p.107.
[6] Purpose is one of the requirements for interpretation of a treaty under Article 31 of the Vienna Convention on the Law of Treaties.
[7] Center for Oceans Law and Policy, University of Virginia School of Law, The UNCLOS 1982: A Commentary, (Martinus Nijhoff Publishers, 1995), p.329 and 334.
[8] Ibid, p.332.
[9] International Court of Justice (ICJ) Reports (1993), p.34 at para.80.
[10] Ibid, para.61.
[11] See E.D Brown, “Rockall and the Limits of National Jurisdiction of the UK” (1978) Marine Policy, Part I, 205-208; E.D. Brown, Seabed Energy and Minerals: The International Legal Regime: The Continental Shelf, (Dordrecht: Martinus Nijhoff Publisher, Vol.1, 1992), at p.39; Churchill and Lowe, The Law of the Sea, (Manchester University Press, 3rd ed., 1999), at p.50; Clive R. Symmons, The Maritime Zones of Islands in International Law, (The Hague: Martinus Nijhoff Publisher Press, 1979), at p.41.
[12] CIA fact book online at: https://www.cia.gov/cia/publications/factbook/geos/ve.html.
[13] Hart Dubner, “The Spratlys “Rock” Dispute- A “Rockapelago” Defies Norms of International Law”, 9 (1995) Temp Int’l & Comp. L. J., 291 at 303.
[14] Ibid.
[15] Robert D. Hodgson, (Geographer of the Bureau of Intelligence and Research, US Department of State) “Islands: Normal and Special Circumstances” in Gamble J.K. and Pontecorvo G. (eds), Law of the Sea: The Emerging Regime of the Oceans, (Ballinger Publishing Company, 1974), 137 at 150 and 151.
[16] For a discussion of the difficulty in interpreting this Article, see Charney, “Rocks Cannot Sustainable Human Habitation” 93(1999) AJIL, p.863-77 and Kwiatkowska and Soons, “Entitlement to Maritime Areas of Rocks which Cannot Sustain Human Habitation or Economic Life of their Own” 21(1990) NYIL, 174, at p.139-181. Brown commented on the wording of Article 121(3) that “in its present form, Article 121(3) appears to be perfect recipe for confusion and conflict”. For further, see Brown E.D., “Rockall and the Limits of National Jurisdiction of the UK” (Part I) (1978) Marine Policy, p.181 at 206.
[17] Marius Gjetnes, op.cit., note 5, 191 at 195.
[18] Long habitation refers to a stable community of people who are permanently living on the island. Short shelter may be the visiting of fishermen or the sending of occasional explorers or scientists to conduct some research.
[19] Jon Van Dyke, Joseph R. Morgan and Jonathan Gurish, “The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?” (1988) 25 San Diego L. R., 425, at 438. The authors considered that five persons would be too few to constitute a stable community, but 50 could very well serve as a population of sufficient size. Karagiannis went even further to suggest that the presence of one person on an island may provide an indication that the island can support human habitation. For further, see Karagiannis, “Les Rochers Qui ne se Prêtent pas à l’Habitation Humaine ou à une Vie Économique Propre et le Droit de la Mer” (1996) 29 Revue Belge de Droit International, 559-624 at 573-574.
[20] In fact, many islands with extensive maritime zones do not have 50 persons living on them. For example, Jan Mayen of Norway.
[21] The specific description of conditions for human habitability was initially developed by Gidel, see Clive R. Symmons, op.cit., note 11, at 46, referring to Gidel B., Le Droit International Public de la Mer (1934) at 684. Then this was mentioned in all discussions on the meaning of ‘human habitation’ in Article 121(3). Recently, Hasjim Djalal also repeated these conditions in his presentation at Panel “The Role of International Law and Norms in Resolving and Managing Disputes”, in the Workshop “The South China Sea and Asia Pacific in Transition: Exploring Options for Managing Disputes” organized by the Center for Strategic and International Studies (CSIS) on 27-28 June 2012 in Washington DC.
[22] For example, some devices will allow people to live by rain water instead of fresh water.
[23] For example, Charney argued that having economic resources in the adjacent water is enough for islands to pass this test of Article 121(3). For details, see Charney, op.cit., note 16, 863-878.
[24] This can be seen from inconsistent state practice in claiming maritime zones for small and inhabited islands. It is because some states are not the members of UNCLOS, or despite being members of the Convention, still make a claim due to the economic interests in ocean resources. For example, the United States claims full effect for some small and inhabited islands in Northwestern Hawaii (For details, see Jon Van Dyke et al., op.cit., note 19) and Venezuela claims full maritime zones for the Aves Island (For further, see CIA fact book online at: https://www.cia.gov/cia/publications/factbook/geos/ve.html), also in Alex G. Oude Elferink, “Clarifying Article 121(3) of the Law of the Sea Convention: The Limits Set by the Nature of International Legal Process” (1998) Boundary and Security Bulletins, 58 at 61.
[25] Article 31 of the Vienna Convention on the Law of Treaties, 1969.
[26] The United Kingdom indirectly stated the 200 nautical miles fishery zone for Rockall in the attached nautical chart of the Fishery Limits Act of 1976 (reprinted in 2 F.F. Durante & W. Rodino, Western Europe and the Development of the Law of the Sea (United Kingdom) L.22.12.1976 (1984)), cited in Jon Van Dyke et al, op.cit., note 19, at 453 and Clive R. Symmons, op.cit., note 11, p.117-8.
[27] Point 1 in the 1970 reservation of Taiwan to the 1958 Convention on the Continental Shelf. For full text, see (1971) 10 ILM 452.
[28] Article 51 of the Act provided that “islands shall have an exclusive economic zone; however, rocks that cannot sustain human habitation or economic life of its own shall not.”
[29] Aves Island is situated centrally in the Eastern Caribbean, 435 kilometers away from the nearest Venezuelan territory. The island measures about 585 meters in length and at it narrowest point 30 meters in width. It was claimed and recognized to generate full maritime zone in the maritime delimitation between Venezuela and Puerto Rico without any consideration under Article 121.3.
[30] The Northwestern Hawaiian Islands include a number of small bits of land extend in a long chain, namely the Nihoa Island, Necker Island, French Frigate Shoals, Gardner Pinnacles, Maro Reef, Laysan Island, Lisianski Island, Pearl and Hermes Atoll, Midway Island and Kure Atoll. Although some of these islands are only suitable for small plants, such as coconut tree and brush, and all are not capable for current habitation, the United States still claims their EEZs.
[31] The Ceva-i-Ra is a six and a half acres sandy cay located about 300 miles from the nearest Fijian territory. This is also uninhabited islet, but Fiji still claims its full maritime zone in order to protect its interests in fishery and mineral resources.
[32] L’Esperance Rock is the uninhabited insular formation in the southernmost of the Kermadec Islands group which lies some 600 miles from the North Island of New Zealand. The only inhabitants on the entire ‘rocky group’ of islands are about ten staffs of the meteorological station on Raoul, the northernmost islet in the chain. However, New Zealand claims that the L’Esperance Rock generates its own 200 nautical mile zone on New Zealand’s maps. This claim seems contradict with Article 121.3 because New Zealand wants to protect the fishing and mineral resources in the area.
[33] For further discussion of these state practices, see Jon Van Dyke et al., op.cit., note 19, p.451-463 and Kwiatkowska and Soons, op.cit., note 16, at p.177-8.
[34] The claim of Venezuela was recognized by the US, France and the Netherlands.
