International Law Relating to Islands [1 ed.] 9789004361546, 9789004361539

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© The Hague Academy of International Law, 2017 All rights reserved

ISBN 978-90-04-36153-9 Full text of the lecture published in September 2017 in the Recueil des cours, Vol. 386.

Cover photograph: Islands of Palau, by Tororo Reaction (via Shutterstock).

THE HAGUE ACADEMY OF INTERNATIONAL LAW

A collection of law lectures in pocketbook form

2017

International Law relating to Islands

International Law relating to Islands

SEAN D. MURPHY

TABLE OF CONTENTS Chapter I.  Introduction. . . . . . . . . . . . . . . . . 15 Chapter II.  Selected contemporary disputes concerning islands. . . . . . . . . . . . . . . . . . . . . . 21 A.  North Atlantic Ocean, Mediterranean Caribbean Sea. . . . . . . . . . . . . B.  South Atlantic Ocean.. . . . . . . . . C.  Southern Ocean. . . . . . . . . . . . . D.  Indian Ocean. . . . . . . . . . . . . . E.  Pacific Ocean. . . . . . . . . . . . . . F. Conclusion. . . . . . . . . . . . . . .

Sea, and . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22 28 30 31 35 44

Chapter III.  Definition of an “island”. . . . . . . . . 46 A.  Low-tide elevations. . . B. Islands.. . . . . . . . . . C.  Islands that are “rocks”. D. Conclusion. . . . . . . .

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47 56 68 95

Chapter IV.  Methods for acquiring sovereignty over an island. . . . . . . . . . . . . . . . . . . . . . . 97 A.  General points. . . . . . . . . . . . . . . . . . 98 B. Title by discovery and occupation of terra nullius.. . . . . . . . . . . . . . . . . . . . . . 103 C.  Title by international agreement between States. 109 D.  Title by State succession. . . . . . . . . . . . . 115 E.  Title by military conquest. . . . . . . . . . . . 118 F. Title by continuous and peaceful display of sovereignty. . . . . . . . . . . . . . . . . . . . 119 G.  Relevance of proximity/contiguity of the island to other features. . . . . . . . . . . . . . . . . 136 H.  Relevance of maps. . . . . . . . . . . . . . . . 140 I.  Alternative approaches. . . . . . . . . . . . . . 142 J. Conclusion. . . . . . . . . . . . . . . . . . . . 146 Chapter V.  Islands within boundary rivers or lakes. 147 A.  General points. . . . . . . . . . . . . . . . . . 147 B.  Islands in boundary rivers. . . . . . . . . . . . 148

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C.  Islands in boundary lakes. . . . . . . . . . . . 155 D. Conclusion. . . . . . . . . . . . . . . . . . . . 160 Chapter VI.  Islands in relation to maritime zones.. 161 A.  Baselines and internal waters of a mainland in relation to nearby islands or low-tide elevations. . . . . . . . . . . . . . . . . . . . . . . . 1.  Normal baselines and low-tide elevations.. 2.  Straight baselines and “fringing” islands.. 3.  Straight baselines and low-tide elevations.. 4.  Bay closing lines and islands within bays.. 5.  Internal waters. . . . . . . . . . . . . . . . B.  Baselines and internal waters of an island not part of a fringe of islands along a mainland.. C.  Islands and the territorial sea. . . . . . . . . . 1.  No maritime zones for low-tide elevations. 2.  Entitlement of islands to a territorial sea.. 3.  Rights and obligations in an island’s territorial sea.. . . . . . . . . . . . . . . . . . . D.  Islands and the contiguous zone. . . . . . . . . E.  Islands and the exclusive economic zone. . . . F.  Islands and the continental shelf. . . . . . . . . G. Archipelagos. . . . . . . . . . . . . . . . . . . H.  Islands and historic titles, bays and rights. . . 1.  Historic titles and bays. . . . . . . . . . . . 2.  Historic rights. . . . . . . . . . . . . . . . . 3.  Artisanal (traditional) fishing rights. . . . . 4.  Historic rights and maritime delimitation.. I. Conclusion.. . . . . . . . . . . . . . . . . . . .

162 162 165 170 171 173 173 175 175 176 178 179 180 184 188 196 200 205 209 215 219

Chapter VII.  Effects of islands on maritime boundary delimitation.. . . . . . . . . . . . . . . . . . . 221 A. Rules, principles or methods on delimitation of maritime zones generally. . . . . . . . . . . B.  Rules, principles or methods relating to islands when delimiting maritime zones. . . . . . . . . 1.  General observations. . . . . . . . . . . . . 2.  Islands and an equidistance line. . . . . . . 3.  Islands and an angle-bisector line. . . . . . 4.  Enclaving islands. . . . . . . . . . . . . . .

222 230 231 241 244 246

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5.  “Mushrooming” islands.. . . . . . . . . . . 6.  Combination of methods. . . . . . . . . . . C. Rights and obligations pending resolution of overlapping claims. . . . . . . . . . . . . . . . D. Conclusion. . . . . . . . . . . . . . . . . . . .

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249 251 257 275

Chapter VIII.  Changes in islands over time.. . . . . 277 A.  Ways that islands can change over time. . . . B.  Legal consequences of changes over time.. . . 1.  Creation of new islands.. . . . . . . . . . . 2.  Unstable maritime zones. . . . . . . . . . . 3. Stable maritime zones despite shifting baselines. . . . . . . . . . . . . . . . . . . . 4.  Islands to rocks to low-tide elevations. . . . 5.  Disappearance of an island State. . . . . . . C. Conclusion. . . . . . . . . . . . . . . . . . . .

277 281 281 284 286 289 289 293

Chapter IX.  Pacific settlement of island disputes. . . 295 A. Overview of LOS Convention dispute settlement.. . . . . . . . . . . . . . . . . . . . . . . B.  Islands and negotiation. . . . . . . . . . . . . . C.  Islands and mediation. . . . . . . . . . . . . . D.  Islands and conciliation. . . . . . . . . . . . . E.  Islands and arbitration. . . . . . . . . . . . . . F.  Islands and judicial settlement. . . . . . . . . . 1.  Contentious cases. . . . . . . . . . . . . . . (a) International Tribunal for the Law of the Sea. . . . . . . . . . . . . . . . . . (b)  International Court of Justice. . . . . . 2.  Advisory opinions.. . . . . . . . . . . . . . G.  Commission on the Limits of the Continental Shelf. . . . . . . . . . . . . . . . . . . . . . . H. Conclusion. . . . . . . . . . . . . . . . . . . .

295 301 304 305 310 320 320 321 323 326 328 333

Chapter X.  General conclusions. . . . . . . . . . . . 335 Bibliography. . . . . . . . . . . . . . . . . . . . . . 340 About the Author. . . . . . . . . . . . . . . . . . . . 365 Biographical note.. . . . . . . . . . . . . . . . . . 365 Principal publications. . . . . . . . . . . . . . . . 366

ACKNOWLEDGMENTS I wish to express my thanks to The Hague Academy of International Law for the opportunity to present these lectures in July 2016 and to the wonderful students who attended them. I also appreciate the support I received for my research on this topic by my home institution, George Washington University Law School, especially from Deans Greg Maggs and Blake Morant. I acknowledge, with thanks, Andrew Jacovides, Coalter Lathrop, Oliver Lewis, Brian McGarry, Bernie Oxman and Michael Wood for insightful comments on drafts of these lectures, as well to my research assistants for outstanding support : Jennifer Babaie, Marta Bylica, Gwendolyn Bills, Elle Ross, Jessica Sparano, Zelda Vassar and Laura Withers. In particular, I acknowledge Amy Lindsay for a thorough review of the text prior to publication. Any errors, however, are of my own doing.

CHAPTER I

INTRODUCTION About 71 per cent of the surface of the Earth is covered by water. All land areas of the Earth are, in some sense, “islands” in that they are surrounded by water ; indeed, the continent of Australia is sometimes referred to as an “island continent”. Yet the term “island” is typically used to refer to smaller areas of land, sometimes an island or group of islands forming a single country (referred to herein as a “State”) 1, and sometimes an island or islands possessed by a State whose principal land mass is a “mainland” located within a continent. Islands are often situated amidst popular lanes for transit for merchant and military vessels, which means that they can be an important focus of national and economic security 2. Islands can be very close to rich areas for fishing 3 or for extraction of oil and gas resources from the continental shelf 4, which means that they can be an important focus for economic development. Islands are often surrounded by extraordinary biodiversity, 1   Laurent Lucchini, “L’état insulaire”, Recueil des cours, Vol. 285 (2000), p. 251. 2   See, e.g., Paul Bacot and Albane Geslin (eds.), Insularité et sécurité : l’île entre sécurité et conflictualité, Bruylant, 2014 ; Suzanne Lalonde, “La frontière maritime dans l’Archipel Arctique : un garde-fou essentiel pour le Canada”, Annuaire français de droit international, Vol. 53 (2007), p. 609. 3   See, e.g., Michel Morin, “ ‘Creeping Jurisdiction’ by the Small Islands of the Pacific Ocean in the Context of Management of the Tuna Fisheries”, International Journal of Marine and Coastal Law, Vol. 30 (2015), p. 477. 4   See, e.g., Alice Ruzza, “The Falkland Islands and the UK v. Argentina Oil Dispute : Which Legal Regime ?”, Goettingen Journal of International Law, Vol. 3 (2011), p. 71.

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including coral reef ecosystems, which help sustain and nurture marine life. Islands can play a role in the historical narrative of a State, evoking passionate views about the need to maintain or re-claim sovereignty over an island. Given the value of islands, States jealously guard and make claims to sovereignty over them, which sometimes cause inter-State frictions, even leading to injury and death 5. International law in many respects applies equally to islands as it does to continental landmasses ; indeed, there is some risk when addressing such a topic of portraying it as a unique field of international law, rather than simply one subject matter to which various rules of international law apply. Yet the application of general rules to islands can have unique features, and some special rules of international law addressing islands have been developed as well. Part VIII of the 1982 UN Convention on the Law of the Sea (LOS Convention) 6 consisting of a single article – Article 121 – is devoted to the “regime of islands”, and other provisions of the convention address associated issues, such as “low-tide elevations” and “artificial islands”. Consequently, international scholars at times have devoted themselves to explaining the legal regime of islands, with classic studies completed in the period surrounding the adoption and entry into force of the LOS Convention 7. Other excellent general studies on 5   See, e.g., Hyung-Jin Kim, “3 Chinese fishermen dead after clash with SKorea coast guard”, Associated Press, 30 September 2016, available at : http ://bigstory.ap.org/article/ 3d52f99ac8f94998ac42bc82ec1adfad/3-chinese-fishermendead-after-clash-skorea-coast-guard (recounting an incident 45 miles from a South Korean island). 6   United Nations Convention on the Law of the Sea, done at Montego Bay on 10 December 1982, United Nations, Treaty Series, Vol. 1833, p. 3. 7   See, e.g., Derek Bowett, The Legal Regime of Islands in International Law, Oceana, 1979 ; Clive R. Symmons, The

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the law of the sea also, in part, discuss islands 8. Yet in recent years there have been important developments, especially in the context of cases before international courts and tribunals, which have added considerably to our understanding of the international law relating to islands. The International Court of Justice (International Court) has been very active in addressing issues relating Maritime Zones of Islands in International Law, Martinus Nijhoff, 1979 ; K. Jayaraman, Legal Regime of Islands, Marwah Publications, 1982 ; Haritini Dipla, Le régime juridique des îles dans le droit international de la mer, Presses Universitaires de France, 1984 ; Hiran W. Jayewardene, The Regime of Islands in International Law, Martinus Nijhoff, 1990. Other useful works include : V. S. Mani, “National Jurisdiction : Islands and Archipelagos”, in Ram Prakash Anand (ed.), Law of the Sea : Caracas and Beyond, Martinus Nijhoff, 1980, p. 82 ; J. G. Collier, “The Regime of Islands and the Modern Law of the Sea”, in William Elliott Butler (ed.), The Law of the Sea and International Shipping : Anglo-Soviet Post-UNCLOS Perspectives, Oceana, 1985, p. 173 ; Tommaso Edoardo Frosini, Isole nel diritto pubblico comparato ed europeo : atti del Convegno dell’Associazione di diritto pubblico comparato ed europeo : Sassari, Università degli Studi, 19 maggio 2006, Giappichelli, 2007 ; Petros Siousiouras and Isidoros Tsouros, “Island Regime in the Context of the Montego Bay Convention on the Law of the Sea”, Revue hellénique de droit international, Vol. 60 (2007), p. 359 ; Haritini Dipla, “Islands”, in Max Planck Encyclopedia of Public International Law, Vol. VI, Oxford University Press, 2012, p. 405. 8   See, e.g., D. P. O’Connell, The International Law of the Sea, 2 vols., Oxford, Clarendon Press, 1982 ; R. P. Anand, Origin and Development of the Law of the Sea, Martinus Nijhoff, 1983 ; Robin Churchill and Vaughan Lowe, The Law of the Sea, 3rd ed., Manchester University Press, 1999 ; Philippe Vincent, Droit de la mer, Larcier, 2008 ; Jean-Paul Pancracio, Droit de la mer, Dalloz, 2010 ; Donald R. Rothwell, Alex G. Oude Elferink, Karen N. Scott and Tim Stephens (eds.), The Oxford Handbook of the Law of the Sea, Oxford University Press, 2015  ; Yoshifumi Tanaka, The International Law of the Sea, 2nd ed., Cambridge University Press, 2015 ; Donald R. Rothwell and Tim Stephens, The International Law of the Sea, 2nd ed., Hart, 2016 ; Alexander Prölss (ed.), The United Nations Convention on the Law of the Sea : A Commentary, Hart, 2017.

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to islands, in the context of both sovereignty and maritime boundary delimitation, as may be seen in its 2012 judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia) 9. Important arbitral decisions have also been rendered recently, principally under Annex VII of the LOS Convention, such as the 2015 award in Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) 10 and the 2015 11 and 2016 12 awards 9   Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 19 November 2012, ICJ Reports 2012, p. 624. 10   Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3. 11   The South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19. 12   Ibid., Award of 12 July 2016. The commentary on these awards is already voluminous. See, e.g., Ted L. McDorman, “The South China Sea : The U-Shaped Line, Islands and the Philippine-China Arbitration”, German Yearbook of International Law, Vol. 56 (2013), p. 33 ; Michael Sheng-ti Gau, “The Prospects for the Sino-Philippine Arbitration on the South China Sea (U-Shaped Line) Dispute”, Chinese (Taiwan) Yearbook of International Law and Affairs, Vol. 31 (2013), p. 195 ; Stefan Talmon and Bing Bing Jia (eds.), The South China Sea Arbitration : A Chinese Perspective, Hart, 2014 ; Sienho Yee, “The South China Sea Arbitration (The Philippines v. China) : Potential Jurisdictional Obstacles or Objections”, Chinese Journal of International Law, Vol. 13 (2014), p. 663 ; Mincai Yu, “China’s Responses to the Compulsory Arbitration on the South China Sea Dispute : Legal Effects and Policy Options”, Ocean Development and International Law, Vol. 45 (2014), p. 1 ; Sienho Yee, “The South China Sea Arbitration : The Clinical Isolation and/or One-Sided Tendencies in the Philippines’ Oral Arguments”, Chinese Journal of International Law, Vol. 14 (2015), p. 423 ; Shicun Wu and Keyuan Zou (eds.), Arbitration concerning the South China Sea : Philippines versus China, Ashgate, 2016 ; Alex G. Oude Elferink, “Arguing International Law in the South China Sea Disputes : The Haiyang Shiyou 981 and USS Lassen Incidents and the Philippines v. China Arbitration”, International Journal of Marine and Coastal Law, Vol. 31 (2016), p. 205 ; Vincent P. Cogliati-Bantz, “The South China Sea Arbitration (The Republic of the Philippines v. The People’s Republic of China)”, International Journal of

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in South China Sea Arbitration (Philippines v. China) 13. In light of these developments, now would appear to be a propitious time for a series of lectures looking generally at the range of issues that arise with respect to international law relating to islands. Chapter II provides a brief survey of selected contemporary disputes concerning islands, as a means of highlighting the continuing significance of law in this area. In doing so, it attempts to use the most common names in English of maritime areas and features ; such names should not be viewed as an implicit recognition of legal entitlements. Chapter III turns to the legal meaning of an “island”, as distinguished from other features such as “low-tide elevations” or “artificial islands”. This chapter also seeks to clarify the difference between an island that can generate full entitlement to maritime zones and an island that is a “rock” within the meaning of Article 121, paragraph 3, of the LOS Convention, which is only capable of generating a territorial sea and contiguous zone. Chapter IV considers various methods for securing sovereignty over an island, such as by discovery, by peaceful possession, or by agreement among relevant States. Chapter V considers the situation of islands located within inter-State boundary rivers or lakes. Marine and Coastal Law, Vol. 31 (2016), p. 759 ; Sienho Yee (ed.), “Special Issue on Jurisdiction and Admissibility in the South China Sea Arbitration”, Chinese Journal of International Law, Vol. 15 (2016), p. 217. 13   China did not participate in the arbitral proceedings and declared that the tribunal’s award on the merits “is null and void and has no binding legal force. China neither accepts nor recognizes it.” Ministry of Foreign Affairs of the People’s Republic of China, “Statement of the Ministry of Foreign Affairs of the People’s Republic of China on the Award of 12 July 2016 of the Arbitral Tribunal in the South China Sea Arbitration Established at the Request of the Republic of Philippines” (12 July 2016), available at : http ://www.fmprc. gov.cn/mfa_eng/zxxx_662805/t1379492.shtml.

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Chapter VI turns to islands in relation to maritime zones, beginning with baselines and internal waters, and then moving to the territorial sea, contiguous zone, continental shelf, and exclusive economic zone (or EEZ). This chapter also considers the situation of archipelagos and of historic titles, bays, and rights in relation to the LOS Convention. Chapter VII addresses the important issue of islands and maritime boundary delimitation, whereby the presence of islands may affect, among other things, the use of an equidistance line or an anglebisector line. Alternatively, islands may have little effect on a maritime boundary delimitation and instead may simply be enclaved or dealt with in some other way. Chapter VIII considers an issue that has become especially poignant in recent years : the way that islands may change over time, especially by sinking below the sea due to the effects of global climate change. Chapter IX analyses the pacific settlement of island disputes, noting myriad ways such disputes can be and have been resolved, including through the creative and compulsory procedures of the LOS Convention. Chapter X provides some concluding observations.

CHAPTER II

SELECTED CONTEMPORARY DISPUTES CONCERNING ISLANDS This chapter provides a sampling of contemporary international disputes concerning islands. The goal is not to identify all disputes over islands that exist worldwide, nor to address the merits of any particular State’s claims of sovereignty to an island or to its associated maritime zones. Rather, this chapter seeks simply to demonstrate that disputes over islands are a ubiquitous feature of our international landscape, no matter what region, and that these disputes involve claims to sovereignty, claims to maritime zones, and/or claims to delimitation of those zones. Moreover, at times such disputes can flare up into confrontations between States, including in the form of encounters by military units on land and at sea. At the same time, it may be the case that an alleged “dispute” does not actually exist, if a Government that might advance a claim with respect to an island in fact is not doing so 14. 14   For example, while some have urged pursuit of a US claim with respect to Wrangel Island in the Arctic, see, e.g., Don Eric Salom, “The United States Claim to Wrangel Island : The Dormancy Should End”, California Western International Law Journal, Vol. 11 (1981), p. 140, the US Government has declined to do so. See US Department of State, Bureau of European and Eurasian Affairs, Fact Sheet, Status of Wrangel and Other Arctic Islands, 20 May 2003, available at : http  ://2001-2009.state.gov/p/eur/rls/fs/20922.htm (“None of the islands or rocks [of Wrangel Island, Herald Island, Bennett Island, Jeannette Island, or Henrietta Island] were included in

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Further, this brief survey seeks to highlight how international law can play a role in helping to address disputes that have arisen with respect to islands. Such law sets forth certain basic rules for understanding how a State might acquire sovereignty over an island, understanding the consequences that flow from such sovereignty with respect to maritime spaces, and how States might resort to pacific settlement to resolve associated disputes. A.  North Atlantic Ocean, Mediterranean Sea, and Caribbean Sea Rockall is an uninhabited granite island located in the North Atlantic Ocean that falls within the United Kingdom’s exclusive economic zone, about 230 nautical miles northwest of Ireland. The United Kingdom had claimed a 200-nautical-mile exclusive fishing zone generated by the island itself, but dropped that claim prior to ratification of the LOS Convention 15 because, as discussed in Chapter III, rocks that cannot sustain human habitation or economic life of their own are not entitled to their own exclusive economic zone. Even so, there remains a dispute with Ireland over whether the United Kingdom is sovereign over Rockall, such that the United Kingdom could claim a 12-nautical-mile territorial sea around the island 16. In 2014, the two States published the US purchase of Alaska from Russia in 1867, and they have never been claimed by the United States, although Americans were involved in the discovery and exploration of some of them”) ; see also Kenneth Jones, “How Canada almost Claimed Wrangel Island”, Canadian Geographic, Vol. 102 (4) (1982), p. 56. 15   David H. Anderson, “British Accession to the UN Convention on the Law of the Sea”, International and Comparative Law Quarterly, Vol. 46 (1997), p. 761 at p. 778. 16   See Clive R. Symmons, “Ireland and the Rockall Dispute : An Analysis of Recent Developments”, IBRU Boundary and Security Bulletin (Spring 1998), p. 78.

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charts marking the limits of their exclusive economic zones in this area, which at least resolved any dispute with respect to those zones 17. The Savage (or Selvagens) Islands are a small Portuguese archipelago in the North Atlantic. While sovereignty over the islands is not disputed, the islands feature in a dispute between Portugal and Spain with respect to the delimitation of their continental shelves. Portugal regards the islands as being entitled to generate their own continental shelf, and therefore would delimit the continental shelf at a point south of the islands. Spain, by contrast, regards the Savage Islands as not being entitled to a continental shelf, and therefore would ignore them, instead delimiting the continental shelf by drawing an equidistant line halfway between the Portuguese archipelago of Madeira and the Spanish Canary Islands 18. Perejil Island is a small, uninhabited island located 200 metres off the mainland coast of Morocco, whose sovereignty is disputed between Spain and Morocco. Indeed, the island was the subject of an armed incident between the two countries in 2002, in which a dozen Moroccan soldiers landed on the island, and then a few days later Spanish commandos landed and took the Moroccans prisoner 19. Ultimately, the Moroccan soldiers were allowed to return home and, after mediation by the 17   See UKHO Law of the Sea, “The UK Exclusive Economic Zone”, March 2014, available at : https ://www.gov. uk/government/uploads/system/uploads/attachment_data/ file/346014/UK_Exclusive_Economic_Zone.pdf   (illustrative chart). 18   See Pedro Quartin Graça, A Importância das Ilhas no Quadro das Políticas e do Direito do mar : O Caso das Selvagens, Chiado Editora, 2014. 19   Giles Tremlett, “Moroccans seize Parsley Island and leave a bitter taste in Spanish mouths”, The Guardian, 13 July 2002, available at : https ://www.theguardian.com/world/2002/ jul/13/spain.gilestremlett ; Susan Linnee, “Spain and Morocco agree to differ over Perejil”, The Independent (London), 22 July 2002, available at : http ://www.independent.co.uk/

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United States 20, Spanish troops evacuated the island. Today, the island remains unoccupied, but claimed by both countries 21. In the Mediterranean Sea, there are various disputes, most notably between Greece and Turkey with respect to the numerous islands sprinkled throughout the Aegean Sea 22. There are various types of disputes : sovereignty is disputed with respect to some of the islands 23 ; a dispute concerning the width of the territorial sea around the islands (Greece has claimed a 6-nautical-mile territorial sea around its islands, but has asserted a right to claim a 12-nautical-mile territorial sea) 24 ; a dispute about the news/world/europe/spain-and-morocco-agree-to-differ-overperejil-185424.html. 20   Peter Gold, “Parsley Island and the Intervention of the United States”, Journal of Transatlantic Studies, Vol. 8 (2010), p. 83. 21   See C. Jiménez Piernas et al., “Spanish Diplomatic and Parliamentary Practice in Public International Law, 2001 and 2002”, Spanish Yearbook of International Law, Vol. 8 (20012002), p. 98. 22   See generally Michael N. Schmitt, “Aegean Angst : The Greek-Turkish Dispute”, Naval War College Review, Vol. 49 (1996), p. 42 ; Jon M. Van Dyke, “An Analysis of the Aegean Disputes under International Law”, Ocean Development & International. Law, Vol. 36 (2005), p. 63. 23   For example, Greece and Turkey dispute sovereignty over the small islands of Kardak and Imia Rocks. See, e.g., Yüksel Inan and Sertaç H. Baseren, “The Troubled Situation of the Aegean Territorial Waters”, Etudes helleniques/Hellenic Studies, Vol. 4 (1996), p. 55 at p. 65 ; Anna Lucia Valvo, “The Aegean Sea between Greece and Turkey : The Kardak Rocks and the Other Islands Never Given”, in Bayram Öztürk (ed.), The Aegean Sea 2000  : Proceedings of the International Symposium on the Aegean Sea, Turkish Marine Research Foundation, 2000, p. 117. 24   Krateros M. Ioannou, “The Greek Territorial Sea”, in Theodore C. Kariotis (ed.), Greece and the Law of the Sea, Martinus Nijhoff, 1997, p.115 at p. 130 ; Agusto Sinagra, “The Problem of Delimiting the Territorial Waters between Greece and Turkey in the Aegean Sea”, in Öztürk, op. cit., p. 170.

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effect of the islands on delimitation of the continental shelf and the exclusive economic zone 25 in the Aegean Sea  ; a dispute regarding the airspace around the islands 26, a dispute about the demilitarized status of some of the islands 27 ; and a dispute concerning passage rights through the sea 28. On the other side of the North Atlantic, both Canada and the United States claim sovereignty over Machias Seal Island and North Rock, which are located in the Gulf of Maine. Both islands are barren and were never settled by humans, but they serve as important sanctuaries for seabirds and seals 29. The Canadian Coast Guard maintains a lighthouse on Machias Seal Island, but the legitimacy of its construction and operation has never been recognized by the United States 30. When the two countries requested the International Court of Justice to delimit their maritime boundary in the Gulf of Maine, they designed their submission to avoid settling the dispute over the sovereignty of these two islands by agreeing to have a common starting point for the offshore

25   The easternmost islands of Greece in the Aegean Sea are as close as one nautical mile from the Turkish coast. See Theodore C. Kariotis, “The Case for a Greek Exclusive Economic Zone in the Aegean Sea”, Marine Policy, Vol. 14 (1990), p. 3 ; Christos L. Rozakis, “The Greek Continental Shelf”, in Kariotis, op. cit., p. 67. 26   Greece has claimed a 10-nautical-mile air defence zone around each of its islands. See Ioannou, “The Greek Territorial Sea”, in Kariotis, op. cit., p. 115 at pp. 129-133. 27   Tozun Bahcheli, Greek-Turkish Relations Since 1955, Westview, 1990, pp. 146-149. 28   Jon M. Van Dyke, “Aegean Sea”, in Max Planck Encyclopedia of Public International Law, Vol. 1, op. cit., p. 113. 29   David H. Gray, “Canada’s Unresolved Maritime Boundaries”, IBRU Boundary and Security Bulletin (Autumn 1997), p. 66. 30   Ibid., pp. 66-67.

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boundary, southwest of the Machias Seal Island 31. As such, while the Court delimited the maritime boundary in the Gulf of Maine 32, it left a gap of several dozen kilometres in which lie the two islands (a gap referred to by fishers as the “grey zone”) 33. Further to the north, in the Nares Strait between Canada and Greenland, lies a small, uninhabited island called Hans Island, which is claimed by both Canada and Denmark. The island is located in the territorial sea entitlements of both States, squarely in the centre of the strait. A 1973 maritime boundary agreement between the two States delineates a very long continental shelf boundary between them 34, but leaves the points in the vicinity of Hans Island unaddressed because of this dispute 35. Moving south to the Caribbean Sea, there are several disputes, some relating to overlapping maritime zones of 31   Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), Special Agreement of 25 November 1981, ICJ Pleadings, Vol. 1, p. 10. 32   Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), Judgment of 12 October 1984, ICJ Reports 1984, p. 246 at p. 339, para. 229. 33   Joan Marshall, “Defining Maritime Boundaries : ‘The Murky Hand of History’s Oversight’ in the Gulf of Maine”, The Canadian Geographer, Vol. 48 (2004), pp. 270-271 ; Stephen Kelley, Opinion, “Good Neighbors, Bad Border”, NY Times, 27 November 2012, A31 ; Joshua Keating, “An Island Dispute of Our Own”, Foreign Policy, 28 November 2012, available at : http ://foreignpolicy.com/2012/11/28/an-island-dispute-ofour-own/. 34   Agreement relating to the Delimitation of the Continental Shelf between Greenland and Canada, Denmark-Canada, done at Ottawa on 17 December 1973, United Nations, Treaty Series, Vol. 950, p. 147. 35   See Christopher Stevenson, Note, “Hans Off  ! : The Struggle for Hans Island and the Potential Ramifications for International Border Dispute Resolution”, Boston College International and Comparative Law Review, Vol. 30 (2007), p. 266.

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islands and others relating to the nature of or sovereignty over islands. For example, the Sapodilla Cayes are a system of low sandy islands administered by Belize as a part of its territorial sea. Nestled in the Gulf of Honduras at the confluence of three States, however, both Guatemala and Honduras also claim sovereignty over the Cayes 36. Navassa Island (La Navasse) is a small, uninhabited island located between Haiti and Jamaica that is administered by the United States as an unorganized, unincorporated territory 37. Navassa Island is one of several islands still claimed by the United States pursuant to the United States’ 1856 Guano Islands Act 38. That statute provides that islands, rocks, or keys, not within the jurisdiction of any other country should “be considered as appertaining to the United States” if a United States citizen discovered upon them a deposit of guano and provided notice of the discovery to the Department of State 39. Among other things, the US Supreme Court in 1890 affirmed that the United States had jurisdiction in three criminal cases 36   Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World, 2nd ed., Martinus Nijhoff, 2005, p. 267. 37   “Navassa Island”, CIA World Factbook, last updated 13 September 2016, available  at :  https ://www.cia.gov/library/ publications/the-world-factbook/geos/bq. html. 38   Guano Islands Act of 1856, 11 Stat. 119, 48 USC, §§ 1411-1419 (2012). 39   Ibid., § 1411. Upon giving the appropriate notice, “[t]he discoverer, or his assigns . . . may be allowed, at the pleasure of Congress, the exclusive right of occupying such island, rocks, or keys, for the purpose of obtaining guano, and of selling and delivering the same to citizens of the United States”. Ibid., § 1414. Most of the approximately 100 islands claimed at one time by the United States pursuant to this statute have since been relinquished. See generally Jimmy M. Skaggs, The Great Guano Rush : Entrepreneurs and American Overseas Expansion, Palgrave Macmillan, 1994.

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that arose from events on the island in 1889 40. Haiti, however, claims sovereignty over Navassa Island based on its 1801 constitution 41. B.  South Atlantic Ocean Some island disputes exist off the coast of Africa in the South Atlantic Ocean. For example, Equatorial Guinea and Gabon have not resolved their maritime boundary due to a dispute relating to three islands in Corsico Bay (the Mbanié, Cocotiers, and Congas islands) 42. Equatorial Guinea also has a dispute with its other neighbour, Cameroon, over an island at the mouth of the Ntem River 43. Off the coast of Argentina lie what are known to Argentina as the Malvinas Islands and to the United Kingdom as the Falklands Islands. Hosting a population of about 3,000 people 44, the islands have been possessed at various times by Argentine, British, French, and 40   Jones v. United States, 137 US 202 (1890). See also Opinion of the Attorney-General, 34 Op. Atty. Gen. 507 (1925). For a dispute under US law as to title to the island, see Warren v. United States, 234 F. 3d 1331 (DC Cir. 2000). 41   See Constitution of 1801 (Toussaint’s Constitution), Art. 1 (including “other adjacent islands” within the territory of Haiti), available at : http ://thelouvertureproject.org/index. php ?title=Constitution_of_1801_(English). 42   The two States, however, engaged in mediation and reportedly reached agreement in late 2016 to submit the matter to the International Court of Justice. See UN Press Release, Secretary-General, at Signing Ceremony, Hails Agreement Ending Border Dispute between Equatorial Guinea, Gabon as “Testimony” to Political Leadership (15 November 2016), available at : http ://www.un.org/press/en/2016/sgsm18265.doc. htm. 43   See Gbenga Oduntan, International Law and Boundary Disputes in Africa, Routledge, 2015, § 7.5. 44   Falkland Islands Census 2012  : Statistics and Data Tables, April 2013, p. 5, available at : http ://www.falklands. gov.fk/assets/79-13P.pdf.

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Spanish authorities 45. Britain, however, has administered the islands since 1833 46. In April 1982, Argentine forces temporarily occupied the islands, sparking a two-month war ending in the restoration of British control 47. 45   James Francis Gravelle, “The Falklands (Malvinas) Islands : An International Law Analysis of the Dispute between Argentina and Great Britain”, Military Law Review, Vol. 107 (1985), p. 5 at pp. 12-14 (history of settlement and occupation). 46   Ibid., pp. 14-15. 47   The literature on this dispute is extensive. For a sampling, see Angel Tello, “L’Argentine et les îles Malouines”, Politique étrangère, Vol. 47 (1982), p. 1005 ; Lord Chalfont, “Les implications politiques de la guerre des Falkland”, Politique étrangère, Vol. 47 (1982), p. 675 ; Alfredo Bruno Bologna, “Argentinian Claims to the Malvinas under International Law”, Millennium : Journal of International Studies, Vol. 12 (1983), p. 39 ; Hazel Fox, “Legal Issues in the Falkland Islands Confrontation 1982 : With Particular Reference to the Right of Self Determination”, International Relations, Vol. 7 (1983), p. 2454 ; V. L. Kwesi Essien, “The Falkland Islands (Malvinas) Dispute : Sovereignty versus Self-Determination”, Nigerian Journal of International Affairs, Vol. 9 (1983), p. 29 ; Jörg Fisch, “The Falkland Islands in the European Treaty System 1493-1833”, German Yearbook of International Law, Vol. 26 (1983), p. 105 ; Ronald Peter Barston and Patricia W. Birnie, “The Falkland Islands/Islas Malvinas Conflict : A Question of Zones”, Marine Policy, Vol. 7 (1983), p. 14 ; D. W. Greig, “Sovereignty and the Falkland Islands Crisis”, Australian Yearbook of International Law, Vol. 8 (1983), p. 20 ; Lowell Gustafson, The Sovereignty Dispute over the Falkland (Malvinas) Islands, Oxford University Press, 1988 ; Daniel Gibran, The Falklands War : Britain versus the Past in the South Atlantic, McFarland, 1998 ; Roberto Laver, The Falklands/Malvinas Case  : Breaking the Deadlock in the Anglo-Argentine Sovereignty Dispute, Martinus Nijhoff, 2001 ; Enrique Ferrer Vieyra, Las Islas Malvinas y el derecho internacional, 2nd ed., Lerner Editorial SRL, 2007 ; Michael Waibel, “Falkland Islands/ Islas Malvinas ”, in Max Planck Encyclopedia of Public International Law, Vol. III, op. cit., p. 1112 ; Vasco Becker-Weinberg, “Recalling the Falkland Islands (Malvinas) Sovereignty Formula”, Ocean Yearbook, Vol. 27 (2013), p. 411 ; Carlos Alberto Biangardi Delgado and Norberto E. Consani, “History and Present Situation of the

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Similarly, the South Georgia and South Sandwich Islands are claimed by both Argentina and the United Kingdom. These islands are more remote and inhospitable to human life ; they are administered as a British overseas territory and there are scientists on the islands, but there is no native population. South Georgia is the main island and the South Sandwich Islands are a smaller chain of islands about 700 kilometres to the southeast. The total land area of this territory measures about 4,000 square kilometres 48. The United Kingdom filed an application at the International Court of Justice in 1955 against Argentina and Chile in an effort to resolve sovereignty disputes in the region, including with respect to South 49 Georgia and South Sandwich Islands  , but neither Government consented to the Court’s jurisdiction. C.  Southern Ocean Moving even further south, the South Orkney Islands are a small group of islands in the Southern Ocean located about 600 kilometres from Antarctica. The islands are claimed by both the United Kingdom 50 and Argentina 51, though the claims are in abeyance under Oldest Territorial Conflict in the World : The British Usurpation of the Argentine Malvinas Islands Archipelago”, International Studies Journal, Vol. 10 (2013-2014), p. 103. 48   See Robert K. Headland, The Island of South Georgia, Cambridge University Press, 1984, p. 1. 49   Antarctica (United Kingdom v. Argentina), Application instituting Proceedings against the Argentine Republic of 4 May 1995, ICJ Pleadings, Vol. 55, p. 8 ; Antarctica (United Kingdom v. Chile), Application instituting Proceedings against the Republic of Chile of 4 May 1995, ibid., p. 48. 50   Maria Pia Casarini, “Activities in Antarctica before the Conclusion of the Antarctic Treaty”, in Francesco Francioni and Tullio Scovazzi (eds.), International Law for Antarctica, Martinus Nijhoff, 1996, p. 627 at p. 652. 51   Ibid., p. 666.

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the 1959 Antarctic Treaty 52. Interestingly, both countries currently maintain bases on these islands, albeit on different islands 53. Apart from the personnel at these bases, there are no other inhabitants. The South Shetland Islands are also a group of islands lying close to Antarctica, within about 120 kilometres of the continent. Argentina, Chile, and the United Kingdom all have claims to these islands as part of their claims to Antarctica itself, and hence these claims also are held in abeyance under the 1959 Antarctic Treaty. Several countries have research stations on these islands, some of which are run jointly 54. Potential conflicts at some point may arise with respect to islands located near Antarctica, if States advance claims to a continental shelf for their islands that require delimitation with the continental shelf of Antarctica itself. France’s islands of Crozet and Kerguelen, Norway’s island of Bouvet, and Australia’s islands of Heard, Macquarie, and McDonald in theory might all support continental shelf claims that overlap with claims that could be based on Antarctica. D.  Indian Ocean Island disputes also exist in the Indian Ocean 55. For example, the Chagos Archipelago is a group of islands in 52   The Antarctic Treaty, done at Washington on 1 December 1959, United Nations, Treaty Series, Vol. 402, p. 71, Art. IV. 53   See “Signy Research Station”, British Antarctic Survey, available at : https ://www.bas.ac.uk/polar-operations/sites-andfacilities/facility/signy/ (on Signy Island) ; “Base Orcadas”, Servicio Meterológico Nacional Republica Argentina, available at : http ://www.smn.gov.ar/serviciosclimaticos/?mod=el clima&id=68 (on Laurie Island). 54   Casarini, op. cit., p. 680, Table 2 (e.g., Argentina at Decepción, Chile at Arturo Prat). 55   See Tor Sellström, Africa in the Indian Ocean : Islands in Ebb and Flow, Brill Nijhoff, 2015.

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the Indian Ocean administered by the United Kingdom, which refers to them as the British Indian Ocean Territory (BIOT) 56. Mauritius, however, maintains that the islands have been a part of Mauritius since at least the eighteenth century, at a time when Mauritius was under French colonial rule 57. All of the islands forming part of the French colonial territory of Île de France (as Mauritius was then known) were ceded to Britain in 1810 58, after which Mauritius, including the Chagos Archipelago, was under British colonial rule. In 1965, the United Kingdom separated the Chagos Archipelago from its colony and then granted independence to Mauritius in 1968 59. As a part of UK administration of the islands, the United States has been provided access to a military base on the most southerly island of Diego Garcia, which is strategically situated for both air and naval transit 60. Among the elements of the dispute over these islands is the claim that the Mauritians who were residing in the Chagos Archipelago were forcibly evicted by the British authorities, leading to their resettlement principally on the main island of the Republic of Mauritius 61. A 56   Garth Abraham, “Paradise Claimed : Disputed Sovereignty over the Chagos Archipelago”, South African Law Journal, Vol. 128 (2011), p. 63 at p. 64. 57   Ibid., pp. 79-80 (discussing France taking possession of Isle de France in 1715). 58   Ibid., pp. 85-86 (discussing the Act of Capitulation of 3 December 1810). 59   Ibid., pp. 64-65. 60   Richard Gifford and Richard P. Dunne, “A Dispossessed People : The Depopulation of the Chagos Archipelago 19651973”, Population, Space and Place, Vol. 20 (2014), p. 37 at p. 38. 61   Ibid., pp. 39 et seq. ; see also Timothy P. Lynch, Note, “Diego Garcia : Competing Claims to a Strategic Isle”, Case Western Reserve Journal of International Law, Vol. 16 (1984), p. 101 ; Ebrahim Afsah, “Diego Garcia (British Indian Ocean Territory)”, in Max Planck Encyclopedia of Public International Law, Vol. III, op. cit., p. 93.

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decision by the United Kingdom in 2010 to declare a Marine Protected Area around the islands was contested by Mauritius before an arbitral tribunal convened under the LOS Convention, which reached several interesting findings, including that the United Kingdom has assumed a legal obligation to return the islands to Mauritius when they are no longer needed for defence purposes 62. Off the coast of the border between Eritrea and Djibouti lie the uninhabited Doumeira Islands, which are administered by Djibouti, but claimed by both countries. In a treaty concluded in 1900 by France and Italy – at that time the colonial powers in, respectively, what is now Djibouti and Eritrea – the mainland border was settled and it was agreed that, pending agreement with respect to sovereignty over the Doumeirah Islands, the colonial powers would not seek to occupy them 63. A further agreement signed by France and Italy in 1935 in part would have allocated to Italy sovereignty over the islands, but that agreement never entered into force and was later repudiated by Italy 64. 62   Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3, para. 448 ; see Tom Frost and C. R. G. Murray, “The Chagos Islands Cases  : The Empire Strikes Back”, Northern Ireland Legal Quarterly, Vol. 66 (2015), p. 263. 63   Protocole de délimitation des possessions francoitaliennes, done at Rome on 24 January 1900, Art. 3, in Recueil international des traités du XXe siècle, 1901, p. 171 n. 1 (“Les deux Gouvernements se réservent le droit de régler plus tard la situation de l’ile Doumeirah et des îlôts sans noms adjacents à cette île. En attendant ils s’engagent à ne pas les occuper, et à s’opposer, le cas échéant, à toute tentative, de la part d’une tierce puissance, de s’y arroger des droits quelconques”). 64   Traité entre la France et l’Italie relatif au règlement de leurs intérêts en Afrique (Mussolini-Laval accord), done at Rome on 7 January 1935, Art. 6 (“La France reconnaît la souveraineté de l’Italie sur l’île Doumeirah et les ilots sans nom adjacents à cette île”) ; see G. Bruce Strang, “Imperial Dreams : The Mussolini-Laval Accords of January 1935”, The Historical Journal, Vol. 44 (2001), p. 799.

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The Eparses Islands consist of five uninhabited islands near Mozambique, which are claimed and administered by France : Juan de Nova ; Europa Bassas da India ; and the Glorieuses (or Glorioso Islands) 65. The last is a group of islands consisting of about five square kilometres of land located in the northern Mozambique channel, approximately 160 kilometres northwest of Madagascar, which were settled in 1880 by a Frenchman, and became a possession of France in 1892, ultimately as a part of France’s colony of Mayotte and its dependencies. Since at least 1973, however, Madagascar has claimed sovereignty over the Eparses Islands on the basis that they were joined with Madagascar prior to decolonization 66. France has placed meteorological stations in the islands and, in 2012, France founded a marine protected area around the Glorieuses to help preserve their endangered flora and fauna 67. 65   See Antje von Ungern-Sternberg, “Eparses Islands”, in Max Planck Encyclopedia of Public International Law, Vol. III, op. cit., p. 597. 66   The Organization of African Unity supported Madagascar’s claim. See OAU Council of Ministers, Resolution on the Island of Glorious Juan de Nova, Europa and Bassas da India, CM/Res. 732 (XXXIII) (July 1979) ; OAU Council of Ministers, The Glorious, Juan de Nova, Europa and BassesDa-India Islands, CM/Res. 784 (XXXV) (June 1980). The UN General Assembly invited France to initiate negotiations with Madagascar for reintegration of the islands, which were “arbitrarily separated” from France’s former colony. UNGA, Question of the Islands of Glorieuses, Juan de Nova, Europa and Bassas da India, A/RES/34/91 (12 December 1979). See also Daniel Bardonnet, La succession d’Etats à Madagascar (succession au droit conventionnel et aux droits patrimoniaux), Pichon and Durand-Auzias, 1970 ; André Oraison, “A propos du différend franco-malgache sur les îles éparses du canal de Mozambique (La succession d’Etats sur les îles Glorieuses, Juan de Nova, Europa et Bassas da India)”, Revue générale de droit international public, Vol. 85 (1981), p. 465. 67   “Communique de Presse : Création du Parc naturel marin des Glorieuses : un nouvel espace protégé au cœur de l’océan

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Abu Musa Island is a small island in the eastern Persian Gulf located near the entrance to the Strait of Hormuz. Nearby are two other islands, known as Greater Tunb and Lesser Tunb. Iran administers these islands, but both Iran and the United Arab Emirates claim sovereignty over them. Because of the ocean depths in this area, large vessels (such as oil tankers) transiting through the strait must pass close to these islands, making them an important strategic location in the Persian Gulf 68. E.  Pacific Ocean Numerous disputes also exist in the Pacific Ocean, especially in the area of East Asia 69. For example, certain Indien”, Agence des aires marines protégées, 22 February 2012. 68   See Hooshang Amirahmadi (ed.), Small Islands, Big Politics : The Tonbs and Abu Musa in the Persian Gulf, New York, St. Martin’s Press, 1996 (historical and legal analysis) ; Richard Schofield, Unfinished Business : Iran, the UAE, Abu Musa and the Tunbs, London, Royal Institute of International Affairs, 2003  ; Seyeed Ali Haghshenas, Iran Historical Sovereignty over the Tunbs and BuMusa Islands, Tehran International Studies and Research Institute, 2010. 69   See Hŭi-gwŏn Pak, The Law of the Sea and Northeast Asia : A Challenge for Cooperation, Kluwer, 2000 ; Keyuan Zou, Law of the Sea in East Asia : Issues and Prospects, Routledge, 2005 ; Thomas J. Schoenbaum (ed.), Peace in Northeast Asia : Resolving Japan’s Territorial and Maritime Disputes with China, Korea and the Russian Federation, Edward Elgar, 2008 ; Jon M. Van Dyke, “Disputes over Islands and Maritime Boundaries in East Asia”, in Seoung-Yong Hong and Jon M. Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Martinus Nijhoff, 2009, p. 39 ; Yann-huei Song, “The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean”, Chinese Journal of International Law, Vol. 9 (2010), p. 663 ; Andy Yee, “Maritime Territorial Disputes in East Asia : A Comparative Analysis of the South China Sea and East China Sea”, Journal of Current Chinese Affairs, Vol. 40 (2011), p. 165 ; Yann-huei

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islands commonly referred to as the Southern Kurile Islands (and by Japan as the Northern Territories) are located between Japan and Russia as part of the Kurile Island chain. Since August 1945, the chain of islands has been administered by the Soviet Union and then Russia, but the southernmost islands in the chain are claimed by both Japan and Russia. The conflicting claims relate in part to pre-World War II agreements, in part to World War II era agreements or decisions – notably the Atlantic Charter, the Cairo Declaration, and the Potsdam Declaration – and in part to post-war instruments, such as a 1956 Japanese-Soviet joint declaration 70 and the 1959 San Francisco Peace Treaty, which provided that “Japan renounces all right, title and claim to the Kurile Islands . . .” 71. The Soviet Union, however, never ratified the Peace Treaty, and the treaty itself did not indicate a successor State with respect to the islands. Moreover, this dispute includes disagreement as to which islands Song, “Article 121 (3) of the Law of the Sea Convention and the Disputed Offshore Islands in East Asia : A Tribute to Judge Choon-Ho Park”, in Jon M. Van Dyke, Sherry P. Broder, Seokwoo Lee and Jin-Hyun Paik (eds.), Governing Ocean Resources : New Challenges and Emerging Regimes : A Tribute to Judge Choon-Ho Park, Martinus Nijhoff, 2013, p. 61 ; Hitoshi Nasu and Donald R. Rothwell, “Re-Evaluating the Role of International Law in Territorial and Maritime Disputes in East Asia”, Asian Journal of International Law, Vol. 4 (2014), p. 55 ; Elena Atanasova-Cornelis, Ramon Pacheco Pardo and Eva Pejsova, Pride and Prejudice : Maritime Disputes in Northeast Asia, Report No. 23, Paris, EU Institute for Security Studies, 2015. 70   Joint Declaration by the Union of Soviet Socialist Republics and Japan, done at Moscow on 19 October 1956, available at :   http ://www.ioc.u-tokyo.ac.jp/~worldjpn/documents/texts/ docs/19561019.D1E.html. 71   Treaty of Peace with Japan, done at San Francisco on 8 September 1951, Art. 2 (c), United Nations, Treaty Series, Vol. 136, p. 45 (hereinafter San Francisco Peace Treaty).

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actually fall within the definition of “the Kurile Islands” under the treaty 72. Liancourt Rocks, referred to by the Republic of Korea as Dokdo and by Japan as Takeshima, lie between and are claimed by those two countries, but have been administered by the Republic of Korea since 1954 73. Both countries advance claims based on historical records dating back centuries, on World War II-era agreements and on other agreements and documents ; further, the Republic of Korea emphasizes its presence 72   Seokwoo Lee, “The 1951 San Francisco Peace Treaty with Japan and the Territorial Disputes in East Asia”, Pacific Rim Law & Policy Journal, Vol. 11 (2002), p. 63 at p. 108 ; see Pierre Fistié, “Le problem territorial des Kouriles du Sud dans les relations nippo-soviétiques”, Etudes internationales, Vol. 13 (1982), p. 23 ; David Rees, The Soviet Seizure of the Kuriles, Praeger, 1985  ; Kimie Hara and Geoffrey Jukes (eds.), Northern Territories, Asia-Pacific Regional Conflicts and the Åland Experience : Untying the Kurillian Knot, Routledge, 2009  ; Yakov Zinberg, “Kuril Islands”, in Max Planck Encyclopedia of Public International Law, Vol. V, Oxford University Press, 2012, p. 615 ; Raul Pedrozo, “International Law and Japan’s Territorial Disputes”, International Law Studies, Vol. 92 (2016), p. 119 at pp. 121131. 73   See generally Jon M. Van Dyke, “Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary”, Ocean Development & International Law, Vol. 38 (2007), p. 157 (providing a historical and legal analysis of the competing claims for sovereignty by Japan and South Korea) ; Seokwoo Lee and Hee Eun Lee (eds.), Dokdo : Historical Appraisal and International Justice, Martinus Nijhoff, 2011 ; Ryan Kihoon Kang, Note, “The Sovereignty Dispute over the Liancourt Rocks between Korea and Japan : An Analysis under the Public International Legal Principles of Sovereignty Acquisition”, Journal of Korean Law, Vol. 12 (2013), p. 241 ; Pilkyu Kim, Claims to Territory between Japan and Korea in International Law, Xlibris, 2014 ; Yuji Hosaka, “Is the So-called ‘Rusk Letter’ [ ] Critical Evidence of Japan’s Territorial Claim to Dokdo Island ?”, Journal of East Asia and International Law, Vol. 7 (2014), p. 145.

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and administration of the islands 74. Notwithstanding this dispute, the two sides have reached agreements on the joint development of resources located in the area of the islands, relating both to fishing 75 and to exploration and exploitation of the continental shelf 76. The uninhabited Pinnacle Islands, located about 120 nautical miles northeast of Taiwan, are referred to in Chinese as the Diaoyu or Tiaoyu Islands, and in Japanese as the Senkaku Islands 77. The fact that the islands are located in an important area of maritime transit in the East China Sea, as well as a belief that the seabed in this area may be rich in oil and gas reserves, has generated considerable interest in sovereignty over the islands 78. For more than 74   See Pedrozo, “International Law and Japan’s Territorial Disputes”, op. cit., pp. 131-135 ; Raul Pedrozo, “Sovereignty Claims over the Liancourt Rocks (Dokdo/Takeshima)”, Chinese (Taiwan) Yearbook of International Law and Affairs, Vol. 28 (2010), p. 78. 75   Agreement on Fisheries between the Republic of Korea and Japan of 1999, done at Kagoshima on 28 November 1998, available in English in Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia, Martinus Nijhoff, 2004, Appendix 2, p. 327. 76   Agreement concerning joint development of the southern part of the continental shelf adjacent to the two countries, done at Seoul on 30 January 1974, United Nations, Treaty Series, Vol. 1225, p. 114 ; Agreement concerning the establishment of boundary in the northern part of the continental shelf adjacent to the two countries, done at Seoul on 30 January 1974, United Nations, Treaty Series, Vol. 1225, p. 104. 77   See Steven Wei Su, “The Territorial Dispute over the Tiaoyu/Senkaku Islands : An Update”, Ocean Development & International Law, Vol. 36 (2005), p. 45 ; Masahiko Asada, “Senkaku/Diaoyu Islands”, in Max Planck Encyclopedia of Public International Law, Vol. III, op. cit., p. 90. 78   See K. T. Chao, “East China Sea : Boundary Problems Relating to the Tiao-Yu-T’ai Islands”, Chinese (Taiwan) Yearbook of International Law and Affairs, Vol. 2 (1982), p. 45 ; Ying-Jeou Ma, “The East Asian Seabed Controversy Revisited : Relevance (or Irrelevance) of the Tiao-Yu-T’ai (Senkaku) Islands Territorial Dispute”, Chinese Yearbook of International

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100 years Japan has administered the islands, except between 1951 and 1972 when they were administered by the United States pursuant to the San Francisco Peace Treaty 79, but both China and Japan claim sovereignty over the islands. Various incidents have occurred on or in the vicinity of the islands ; further, the purchase of some Law and Affairs, Vol. 2 (1982), p. 1 ; Ghislain Poissonnier and Pierre Osseland, “A qui appartiennent les îles Senkaku/ Diaoyu ?”, Journal du droit international, Vol. 135 (2008), p. 467 ; Carlos Ramos-Mrosovsky, “International Law’s Unhelpful Role in the Senkaku Islands”, University of Pennsylvania Journal of International Law, Vol. 29 (2008), p. 903 ; Pedrozo, “International Law and Japan’s Territorial Disputes”, op. cit., pp. 136-151 ; Min Gyo Koo, Island Disputes and Maritime Regime Building in East Asia : Between a Rock and a Hard Place, Springer, 2009 ; Chi Manjiao, “The Unhelpfulness of Treaty Law in Solving the Sino-Japan Sovereign Dispute over the Diaoyu Islands”, East Asia Law Review, Vol. 6 (2011), p. 163 ; Zhang Zuxing, “A Deconstruction of the Notion of Acquisitive Prescription and Its Implications for the Diaoyu Islands Dispute”, Asian Journal of International Law, Vol. 2 (2012), p. 323 ; Alfred Soons and Nico Schrijver, What Does International Law Say about the China-Japan Dispute over the Diaoyu/Senkaku Islands ?, The Hague Institute for Global Justice, 2012 ; Jin Yongming, “An International Law Analysis of China’s Sovereignty over the Diaoyu Islands”, China Legal Science, Vol. 1 (2013), p. 56 ; Shinya Murase, “The Senkaku Islands and International Law”, CSIS Japan Chair Platform, 22 May 2013, available at : https ://csis.org/publication/japanchair-platform-senkaku-islands-and-international-law ; Robert D. Eldridge, The Origins of U.S. Policy in the East China Sea Islands Dispute : Okinawa’s Reversion and the Senkaku Islands, Routledge, 2014 ; Hui-Yi Katherine Tseng, Lessons from the Disturbed Waters  : The Diaoyu/Diaoyutai/Senkaku Islands Disputes, World Scientific, 2015 ; Tim F. Liao, Kimie Hara and Krista Wiegand (eds.), The China-Japan Border Dispute : Islands of Contention in Multidisciplinary Perspective, Ashgate, 2015 ; Jie Fei and Zhongping Lai, “New Historical Cartographic Records Supporting Chinese Sovereignty over the Diaoyu/Senkaku Islands”, China Oceans Law Review, (2016), p. 27. 79   San Francisco Peace Treaty, Art. 3.

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of the islands by the Government of Japan from private owners in 2012 triggered Chinese diplomatic protests, as well as anti-Japanese protests in China 80. Among other things, it has been noted that the 1960 Japan-United States Treaty of Mutual Co-operation and Security may have implications for US involvement in such a dispute. That treaty provides : “Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” 81 The semi-enclosed South China Sea, covering an area of about 3.5 million square kilometres, is also home to numerous disputes with respect to islands 82. 80   Jane Perlez, “China Accuses Japan of Stealing after Purchase of Group of Disputed Islands”, NY Times, 12 September 2012, A6 ; Ian Johnson and Tom Shanker, “Beijing Mixes Messages over Anti-Japan Protests”, NY Times, 17 September 2012, A4. 81   Treaty of Mutual Co-operation and Security, JapanUnited States, done at Washington on 19 January 1960, United Nations, Treaty Series, Vol. 373, p. 179, Art. 5 (emphasis added). 82   The literature relating to these disputes is copious. For a sampling, see Zhiguo Gao, “The South China Sea : From Conflict to Cooperation ?”, Ocean Development and International Law, Vol. 25 (1994), p. 345 ; Mark J. Valencia, Jon M. Van Dyke and Noel A. Ludwig, Sharing the Resources of the South China Sea, Martinus Nijhoff, 1997 ; Jianming Shen, “International Law Rules and Historical Evidences Supporting China’s Title to the South China Sea Islands”, Hastings International & Comparative Law Review, Vol. 21 (1997-1998), p. 1 ; Jianming Shen, “China’s Sovereignty over the South China Sea Islands : A Historical Perspective”, Chinese Journal of International Law, Vol. 1 (2002), p. 94 ; Hugues Tertrais (ed.), La Chine et la mer : sécurité et coopération régionale en Asie orientale et du Sud-Est, l’Harmattan, 2011 ; Keyuan Zou, “The Chinese

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Some of these disputes relate to whether certain features can generate maritime zones, while others concern overlapping maritime claims, and still others relate to China’s claim to rights over virtually the entire sea 83. One Traditional Maritime Boundary Line in the South China Sea and its Legal Consequences for the Resolution of the Dispute over the Spratly Islands”, in Keyuan Zou, Jianfu Chen (ed.), International Law in East Asia, Routledge, 2011 ; Sébastien Colin, “Litiges insulaires et enjeux géopolitiques en mer de Chine du Sud”, in Béatrice Giblin (ed.), Les conflits dans le monde : approche géopolitique, Armand Colin, 2011, p. 249 ; Shicun Wu, Solving Disputes for Regional Cooperation and Development in the South China Sea : A Chinese Perspective, Chandos, 2013 ; “Agora : The South China Sea” (Symposium), American Journal of International Law, Vol. 107 (2013), pp. 95-163 ; Keyuan Zou, “China and the South China Sea Conundrum : Any Prospective Solution in Future ?”, German Yearbook of International Law, Vol. 56 (2013), p. 11 ; Ramses Amer, “China, Vietnam, and the South China Sea : Disputes and Dispute Management”, Ocean Development and International Law, Vol. 45 (2014), p. 17 ; S. Jayakumar, Tommy Koh and Robert Beckman (eds.), The South China Sea Disputes and Law of the Sea, Edward Elgar, 2014 ; Yann-huei Song and Keyuan Zou (eds.), Major Law and Policy Issues in the South China Sea : European and American Perspectives, Ashgate, 2014 ; Leszek Buszynski and Christopher B. Roberts (eds.), The South China Sea Maritime Dispute : Political, Legal and Regional Perspectives, Routledge, 2015 ; Tran Truong Thuy and Le Thuy Trang (eds.), Power, Law, and Maritime Order in the South China Sea, Lexington Books, 2015 ; Shicun Wu, Mark Valencia and Nong Hong (eds.), UN Convention on the Law of the Sea and the South China Sea, Ashgate, 2015 ; Jing Huang and Andrew Billo (eds.), Territorial Disputes in the South China Sea : Navigating Rough Waters, Palgrave Macmillan, 2015. 83   See, e.g., Daniel Schaeffer, “L’interprétation du droit de la mer par la Chine : ses effets majeurs en extrême-orient”, Annuaire du droit de la mer, Vol. 13 (2008), p. 23 ; Ted. L. McDorman, “Rights and Jurisdiction over Resources in the South China Sea : UNCLOS and the ‘Nine-Dash Line’ ”, in S. Jayakumar, Tommy Koh, and Robert Beckman (eds.), The South China Sea Disputes and the Law of the Sea, Edward Elgar, 2014, p. 144 ; Florian Dupuy and Pierre-Marie Dupuy,

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of the island groups located in the South China Sea is the Spratly Islands (known by various names), which lie off the coasts of Malaysia, the Philippines, and Vietnam, which are claimed by Brunei, China (and Taiwan), Malaysia, the Philippines, and Vietnam 84. This island chain consists of some 750 islands, reefs, atolls, low-tide elevations, shoals, and cays, which all told comprise only about four square kilometres of land territory dispersed over about 425,000 square kilometres of sea. Some of the better known features are Cuarteron Reef, Fiery Cross Reef, Mischief Reef, Itu Aba Island, and Southwest Cay. While the islands have no indigenous inhabitants, they host a number of claimant State outposts, are located in “A Legal Analysis of China’s Historic Rights Claim in the South China Sea”, American Journal of International Law, Vol. 107 (2013), p. 124. 84   See Omar Saleem, “The Spratly Islands Dispute  : China Defines the New Millennium”, American University International Law Review, Vol. 15 (2000), p. 527 at pp. 536543 (overview of various claims) ; see also Haydee B. Yorac, “The Philippine Claim to the Spratly Islands Group”, Philippine Law Journal, Vol. 58 (1983), p. 42 ; Marius Gjetnes, “The Spratlys : Are They Rocks or Islands ?”, Ocean Development and International Law, Vol. 32 (2001), p. 191 ; Guiqin Wang, Territoriale Streitfragen im Südchinesischen Meer  : Unter besonderer Berücksichtigung des Status der Spratly-Inseln, Tectum Verlag, 2005 ; Henry Rhoel R. Aguda and Jesusa Loreto A. Arellano-Aguda, “The Philippine Claim over the Spratly Group of Islands : An Application of Article 76 of the UNCLOS”, Philippine Law Journal, Vol. 83 (2008-2009), p. 573 ; Keyuan Zou, “The Impact of Artificial Islands on Territorial Disputes over the Spratly Islands”, in Tran Truong Thuy (ed.), The South China Sea : Towards a Region of Peace, Security and Cooperation, Thẽ Giói Publishers, 2011, p. 167 ; Michael Strupp, “Spratly Islands”, in Max Planck Encyclopedia of Public International Law, Vol. IX, op. cit., p. 448 ; Daniel Andreeff, Note, “Legal Implications of China’s Land Reclamation Projects in the Spratly Islands”, New York University Journal of International Law and Politics, Vol. 47 (2015), p. 855.

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strategic shipping lanes and are thought to be adjacent to significant oil and natural gas reserves 85. Likewise the Paracel Islands, also known as Xisha in Chinese and Hoàng Sa in Vietnamese, are a group of islands, reefs, banks, and other maritime features in the South China Sea 86. They are occupied or controlled by China, and also claimed by Taiwan and Vietnam 87. East of the Paracel Islands and north of the Spratly Islands lies Macclesfield Bank, which is an elongated feature of underwater reefs and shoals 88. In this area is what China refers to as the Zhongsha Islands, which include a number of geographically-dispersed submarine features 89. Between Macclesfield Bank and the Philippines lies Scarborough Shoal (or Reef), which is claimed by China, Taiwan, and the Philippines 90. Wake Island is a coral atoll located some 2,400 kilometres east of Guam in the western Pacific Ocean, which the United States views as an unorganized, unincorporated US territory, but which is also claimed by the Marshall Islands 91. Administered by the US Air 85   See Monique Chemillier-Gendreau, Sovereignty over the Paracel and Spratly Islands, Springer, 2000, pp. 16, 19-21. 86   Stein Tønnesson, “The Paracels : The ‘Other’ South China Sea Dispute”, Asian Perspective, Vol. 26 (2002), p. 145 at p. 148. 87   Chemillier-Gendreau, op. cit., p. 47. 88   United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “Taiwan’s Maritime Claims”, Limits in the Seas, No. 27 (15 November 2005), p. 14, available at : https ://www.state.gov/e/oes/ocns/ opa/c16065.htm. 89   Chemillier-Gendreau, op. cit. 90   Ran Guo, “Legal Basis of China’s Claim over the Huangyan Island”, Journal of East Asia and International Law, Vol. 6 (2013), p. 531 ; Bing Bing Jia, “A Preliminary Study of the Title to Huangyan Island (Scarborough Reef/Shoal)”, Ocean Development and International Law, Vol. 45 (2014), p. 360 ; “Taiwan’s Maritime Claims”, op. cit., p. 14, n. 28. 91   Giff Johnson, “US : Time to Wake Up”, The Marshall Islands Journal (6 May 2016), available at : http ://marshall

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Force 92, Wake Island serves as a major mid-Pacific refuelling stop for military aircraft, as well as an emergency landing area. Other disputed islands in the Pacific Ocean include : the Pratas Islands, also known as the Dongsha Islands, an atoll in the north of the South China Sea near Hong Kong, which are claimed by China but controlled by Taiwan 93 ; and the Matthew and Hunter Islands, two small and uninhabited islands located about 300 kilometres east of New Caledonia and southeast of the Vanuatu archipelago, which are claimed both by Vanuatu and by France as a part of New Caledonia. F. Conclusion Across the globe, there exist various disputes among States with respect to the legal status or consequences of islands. As indicated at the outset, the goal in this chapter was not to identify all disputes over islands and certainly not to address the merits of any particular claims to islands but, rather, to highlight the ubiquitous presence of island disputes across regions, whether in the form of claims to sovereignty, claims to maritime zones, and/ islandsjournal.com/Journal_WP/  ?p=3283 (discussing that Marshall Islands is putting its competing claim on record with the United Nations) ; see Republic of the Marshall Islands, Ministry of Foreign Affairs, Baselines and Maritime Zones Outer Limits Declaration 2016, 18 April 2016, p. 23, available at : http ://www.un.org/depts/los/LEGISLATIONANDTREATIES/ PDFFILES/DEPOSIT/mhl_mzn120_2016_2.pdf. 92   Wake Island Code, 35 CFR, § 935.10 (2016) ; Civil Administration of Wake Island, Notice of Termination of Agreement, 37 Fed. Reg. 12255 (21 June 1971) (transferring administrative authority from the US Department of Transportation to the Air Force). 93   Taiwan has declared the area a national park. See “Dongsha Atoll National Park”, Marine National Park Headquarters, last updated 23 October 2015, available at :   http ://www.marine. gov.tw/exploring-national-park/dongsha-atoll-national-park/ description.

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or claims to delimitation of those zones. International law serves an important role in helping to address such disputes, either through general rules or rules directed specifically at islands. As a prelude to discussing those rules, the next chapter focuses on some of the key terminology underlying this area of international law, such as what exactly is meant by the term “island”.

CHAPTER III

DEFINITION OF AN “ISLAND” This chapter principally concerns the definition of an “island” as a matter of international law 94. There are hundreds of thousands of features of one kind or another sprinkled throughout the oceans, which are variously called “banks”, “shoals”, “ridges”, “bars”, “plateaus”, “rises”, “caps”, “spurs”, “reefs”, “atolls”, “islands”, “rocks” and other names 95. Some of these terms have a legal meaning in the law of the sea, but most of them do not. For those terms that do have a legal meaning, that meaning may differ from the meaning ascribed to the term by geographers or geologists. Moreover, whether a specific feature is commonly referred to by use of one of these terms does not establish that it satisfies the legal meaning of the term. Most of these features, such as “banks” and “shoals” 96, exist only below the surface of the oceans and are not of 94   See Andrew J. Jacovides, “Islands”, in Michael W. Lodge and Myron H. Nordquist (eds.), Peaceful Order in the World’s Oceans : Essays in Honor of Satya N. Nandan, Brill Nijhoff, 2014, p. 68. 95   See Dimitris N. Triantafyllou, “La géographie et la Cour de Justice : la contribution du juge à l’usage de termes géographiques (îles, etc.)”, Revue du Marché Commun et de l’Union Européenne, Vol. 490 (2005), p. 451 ; Pancracio, Droit de la mer, op. cit., pp. 246-252. 96   In one context, a “bank” was deemed to be “a rocky or sandy submerged elevation of the sea floor with a summit less than 200 metres below the surface”, while a “shoal” was understood as a bank whose top rises “close enough to the sea surface (conventionally taken to be less than 10 metres below water level at low tide) . . . ”. Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 638, para. 20.

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relevance to these lectures. Those features may be relevant to other aspects of the law of the sea ; for example, oceanic or submarine “ridges” are important for determining the limits of continental shelf entitlements 97. Further, some of those features, such as “undersea volcanoes”, will be noted to the extent that they are relevant to the creation of new islands. But, as a general matter, submerged features will not be discussed. By contrast, features that break through the surface of the ocean are the focus of these lectures in various respects, such as : whether they can be appropriated by States ; their role in establishing baselines ; their ability to generate maritime entitlements ; and their effects on maritime boundary delimitation. An especially important issue for the drafters of the 1982 LOS Convention was whether all features that are above water at high tide can generate extended maritime zones (the exclusive economic zone and the continental shelf). Some States favoured an expansive approach to the ability of such features to generate maritime zones, while others feared that by doing so the natural resources of the oceans would be overly enclosed. The decision ultimately reached was a compromise ; some features above water at high tide can generate maritime zones, while others cannot. To lay the groundwork for understanding the approach of the contemporary law of the sea in this area, it is useful to distinguish and clarify the meaning of three different concepts : low-tide elevations ; islands ; and islands that are “rocks”. A.  Low-tide Elevations A “low-tide elevation” is defined by Article 13, paragraph 1, of the LOS Convention as “a naturally formed area of land which is surrounded by and above 97

  See LOS Convention, Art. 76 (3), (6).

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water at low tide but submerged at high tide” 98. In other words, at low tide you can see such an elevation above the water, but at high tide it is submerged beneath the ocean surface. Certain low-tide elevations are sometimes called a “drying reef” or a “drying rock”. By contrast, as discussed in the next section, a feature that is above water at both low tide and high tide is an “island”. A State’s sovereignty extends to a low-tide elevation located within the State’s territorial sea, just as its sovereignty extends throughout its territorial sea, including to the seabed and subsoil 99. As discussed further in Chapter VI, while low-tide elevations under the 1982 LOS Convention are not islands and do not generate maritime zones, they can be relevant for coastal State baselines 100. Outside the territorial sea, no State has sovereignty over low-tide elevations, but a coastal State does have sovereign rights in its exclusive economic zone or on its continental shelf to explore and exploit the natural resources of a low-tide elevation 101. Low-tide 98   LOS Convention, Art. 13 (1). Article 13 of the LOS Convention is identical to Article 11 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, done at Geneva on 29 April 1958, United Nations, Treaty Series, Vol. 516, p. 205. 99   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 641, para. 26 (“low‑tide elevations cannot be appropriated, although ‘a coastal State has sovereignty over low‑tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself’ and low‑tide elevations within the territorial sea may be taken into account for the purpose of measuring the breadth of the territorial sea”) (citations omitted) (citing Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Judgment of 16 March 2001, ICJ Reports 2001, p. 101, para. 204). 100   See Chapter VI, Sec. A. 101   LOS Convention, Arts. 56 (3) and 77 ; see Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 641, para. 26 (“It is well established in international law that islands, however small, are capable of appropriation.

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elevations located beyond the continental shelf of any State are not subject to either sovereignty or sovereign rights ; rather, they are part of the high seas and deep seabed and are subject to those regimes 102. One problem with identifying low-tide elevations concerns how exactly to prove that the feature is below water at “high tide”. On a given day, in any given year, there might be a combination of astronomical factors that result in a feature being above water at high tide, while on most other days it is below water at high tide. Indeed, seasonal fluctuations in tides, especially near the equinoxes, can affect whether an elevation is above or below the surface at high tide. Complicating matters further, there are different possible meanings for “high tide”. For instance : the average height of waters at a place over a period of years ; the mean high-water spring tide ; or the highest tidal level which can be predicted to occur under meteorological and astronomical conditions. In this context, the Philippines v. China arbitral tribunal considered “that States are free under the Convention to claim a high-tide feature or island on the basis of any high-water datum that reasonably corresponds to the ordinary meaning of the term ‘high tide’ . . .” 103. Indeed, States do use different tidal datums in their national laws for determining the meaning of “high tide”. At the same time, it should be emphasized that, as a matter of law, the feature must be above water at high tide, which is a question of scientific fact rooted in empirical observations and not just an opinion. By contrast, low‑tide elevations cannot be appropriated . . .”) ; The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 132, para. 309 (subscribing to the same view). 102   LOS Convention, Part XI. 103   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 133, para. 311.

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There are various ways, singly or in combination, of assessing whether a specific maritime feature is a low-tide elevation. One method is through direct observation, by travelling to the feature and assessing it at different times of the day over different parts of the year, an approach that may be expensive, time-consuming, or otherwise impractical. Such observations might also be made of the general maritime area in which the feature is located, taking note of particular tidal ranges. Another method involves studying nautical charts and hydrographic surveys used by vessels as navigational aids, which indicate whether the feature is observable at high tide. For example, governmental agencies responsible for naval defence and intelligence matters may produce charts, sailing directions, and other information that characterize maritime features as being low-tide elevations. A third method uses commercially-available satellite imagery. The accuracy of such imaging, however, depends upon various factors, including the quality of its resolution, and thus may be unable to detect very small low-tide elevations ; further, uncertainty may exist as to whether the images in fact are taken at the low and high tides. If the height of the maritime feature is known, then there are many tidal models that might be used for determining whether a feature is below or above water at high tide, though such models may conflict with one another 104. For example, in the 2012 Maritime and Territorial Dispute judgment between Nicaragua and Colombia, the Court considered arguments relating to both the Grenoble Tide Model 105 and the Admiralty Total Tide Model 106. 104   See, e.g., C. K. Shum et al., “Accuracy Assessment of Recent Global Tide Models”, Journal of Geophysical Research, Vol. 102 (1997), p. 25 at p. 173 (noting that more than 20 models are in use and assessing ten of them). 105   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 642, para. 30 (advanced by Colombia). 106   Ibid., p. 643, para. 31 (advanced by Nicaragua).

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The 1982 LOS Convention does not identify a specific methodology to use for determining whether a feature is below or above water at high tide. While some States have developed particular standards 107, such practice does not appear to be uniform 108 and thus there is no rule of customary international law on this point 109. One problem that can arise is when a State artificially alters a maritime feature. In defining “low-tide elevation”, Article 13 speaks of a “naturally formed” area of land. As such, a State cannot artificially create a lowtide elevation, such as by dredging sand from the seabed and placing it on an otherwise permanently submerged bank 110. If an alteration occurs, it then becomes necessary to try to determine what would have been the elevation of 107   See, e.g., United States v. Alaska, 521 US 1, 26 (1997) (in a dispute over title to submerged maritime features, the Court viewed favourably the approach taken by the Special Master in finding that, under US practice, “high tide” in the 1958 Convention meant “mean high water” ; hence, a feature that experiences a seasonal loss in elevation that brings it below mean high water is a low-tide elevation). 108   See, e.g., the conflicting methodologies advanced by France and the United Kingdom in the Anglo-French Continental Shelf arbitration with respect to whether Eddystone Rocks in the English Channel should be regarded as a low-tide elevation. Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (United Kingdom, France), Decision of 30 June 1977, Reports of International Arbitral Awards, Vol. XVIII, pp. 66-72, paras. 122-138. The tribunal avoided the issue, finding that France had previously accepted the relevance of Eddystone Rocks for determining the United Kingdom’s rights in this area and hence was prevented from asserting otherwise. Ibid., pp. 72-74, paras. 139-44. 109   See Tanaka, The International Law of the Sea, op. cit., p. 72. 110   See The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 131, para. 305 (“As a matter of law, human modification cannot change the seabed into a low-tide elevation or a lowtide elevation into an island. A low-tide elevation will remain a

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the feature in its natural State 111. Moreover, such artificial construction activities may also be carried out in a manner that violates Part XII of the LOS Convention on protection and preservation of the marine environment 112. Various low-tide features have been considered and analysed in recent case law. In its 2001 judgment in Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), Bahrain argued that a particular feature, known as Qit’at Jaradah, was above water at high tide, and presented to the Court evidence in the form of eyewitness reports, arguing that natural accretion had bolstered the height of the elevation 113. Qatar, however, maintained that the feature was a low-tide elevation, and pointed to various nautical charts that indicated as much, emphasizing that its physical status was constantly changing 114. Bahrain retained an expert who found that the feature was permanently above water, while Qatar’s two experts found the Bahraini expert’s conclusions inconclusive 115. The Court agreed with Bahrain that the feature was above water at high tide, and appears to have been mostly swayed by the fact that the Qatari experts, while disputing the Bahraini expert’s conclusions, did not themselves assert that the feature was definitively a lowtide elevation 116. While the Court resolved the matter, it did not provide general guidance as to the methodology or sources to be used on this issue. low-tide elevation under the Convention, regardless of the scale of the island or installation built atop it”). 111   Op. cit. supra, footnote 110, pp. 131-132, para. 306. 112   Thus, in the Philippines v. China arbitration, the tribunal found that construction activities on the low-tide elevations of Hughes Reef, Mischief Reef, and Subi Reef violated several provisions of LOS Convention. Ibid., pp. 388-397, paras. 976991, 993 (citing to LOS Convention Arts. 192, 194 (1), 194 (5), 197, 123, and 206). 113   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 62-63, para. 192. 114   Ibid., p. 63, para. 193. 115   Ibid., para. 194. 116   Ibid., para. 195.

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By contrast, in its 2012 Colombia v. Nicaragua judgment, the Court engaged in a more robust discussion regarding the determination of whether a feature is a low-tide elevation or an island. In that case, there were various features on a large bank in the Caribbean called Quitasueño (which is approximately 57 kilometres long and 20 kilometres wide) 117. The parties disagreed as to whether any of the features on Quitasueño qualified as low-tide elevations or islands. Nicaragua claimed that Quitasueño was a shoal, with all of its features permanently submerged at high tide 118, while Colombia argued that 34 individual features within Quitasueño qualified as islands because they were above water at high tide 119. In deciding the issue, the Court reached certain interesting findings about how to prove that a feature is or is not a low-tide elevation. First, the Court considered surveys of the relevant features from many years past as not relevant, presumably because the height of features can change over time ; as such, it favoured contemporary evidence 120. Second, navigational charts showing features were not especially probative, given that such charts are “prepared in order to show dangers to shipping” and “not to distinguish between those features which were just above, and those which were just below, water at high tide” 121. Third, actual observations of conditions at the relevant features, and scientific evaluation of those conditions, are superior 117   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, pp. 640-641, para. 24 (e). See generally Yoshifumi Tanaka, “Reflections on the Territorial and Maritime Dispute between Nicaragua and Colombia before the International Court of Justice”, Leiden Journal of International Law, Vol. 26 (2013), p. 909. 118   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 642, para. 28. 119   Ibid., para. 29. 120   Ibid., p. 644, para. 35. 121   Ibid.

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evidence to analyses based on indirect information 122. Fourth, the geological composition of the feature is irrelevant ; for example, it is of no significance that the feature consists of coral rather than rock 123. Fifth, so long as the feature is above water at high tide, its further height is irrelevant (indeed, Qit’at Jaradah had been found to be “an island, notwithstanding that it was only 0.4 metres above water at high tide” 124). Likewise, and sixth, the area of the feature – in other words, its length and width – is not relevant “since international law does not prescribe any minimum size which a feature must possess in order to be considered an island” 125. Seventh, while there are various tidal models that might be used for determining whether a feature is above water at high tide, a model “whose accuracy is disputed when it is applied to” shallow waters is “not sufficient to prove that tiny maritime features are a few centimetres above water at high tide” 126. Finally, where various tidal models all agree that a feature is above water at high tide, the Court appears likely to find that the feature is an island 127. Based on these factors, the Court found that one of the features on Quitasueño bank, called “QS 32”, was an island 128. The Philippines v. China arbitral tribunal, in assessing maritime features in the South China Sea, reached some similar conclusions, finding that normally the most recent evidence is preferred 129, the actual observation of   Op. cit. supra, footnote 118, para. 36.   Ibid., p. 645, para. 37.   Ibid. 125   Ibid., p. 645, para. 37. 126   Ibid., para. 38. 127   Ibid., para. 37 (“No matter which tidal model is used, it is evident that QS 32 is above water at high tide”). 128   Ibid. (“Accordingly, the Court concludes that the feature referred to as QS 32 is capable of appropriation”). 129   See, e.g., The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 155, para. 354 (“the Chinese chart is to be preferred as the more recent evidence”). 122 123 124

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a feature is particularly relevant 130, and the geological composition of the feature is irrelevant 131. Yet because there had been artificial efforts to increase the elevation and size of some of the maritime features, the tribunal viewed contemporary evidence for those features as unhelpful and relied instead on “the best available evidence of the previous status of what are now heavily modified coral reefs” 132. Further, unlike the Court, the tribunal found that “[g]iven the impossibility of direct, contemporary observation and the limitations on what can be achieved with remote sensing, the Tribunal considers that more convincing evidence concerning the status of features in the South China Sea is to be found in nautical charts, records of surveys, and sailing directions” 133. The tribunal’s assessment of ten maritime features in the South China Sea led to a conclusion that several 134 135 of them – Gaven Reef (South)  , Hughes Reef  , 136 137 Mischief Reef  , Second Thomas Shoal  , and Subi Reef 138 – were all low-tide elevations within the meaning 130   See, e.g., op. cit. supra, footnote 129, p. 135, para. 315 (“the results are based upon in-person observations over a period of time and may be considered reliable”) ; ibid., p. 137, para. 318 (“direct observations on features from such sources can be assumed to have been based on an accurate understanding of the tidal conditions at the time the observations were made. This would be particularly true in the case of direct observations made in the course of a survey, where the officers in question would have been present in the area of a feature for days or weeks at a time”). 131   Ibid., pp, 205-206, paras. 479-482. 132   Ibid., pp. 131-132, para. 306 (emphasis in original). 133   Ibid., p. 140, para. 327. 134   Ibid., p. 164, para. 366. 135   Ibid., pp. 156-157, paras. 355-358. 136   Ibid., pp. 167-173, paras. 374-378. 137   Ibid., pp. 173-174, paras. 379-381. 138   Ibid., pp. 164-166, paras. 367-373.

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of LOS Convention Article 13 139. As such, under the LOS Convention, they did not generate any maritime entitlements in the South China Sea 140. B. Islands If a naturally formed feature is found to be above water at high tide, like QS 32, then it is an “island” 141. Under Article 121 of the LOS Convention, there are two basic categories of islands : islands that are “rocks which cannot sustain human habitation or economic life of their own” and islands that are not such rocks. Both types of islands are capable of generating maritime zones, but not to the same extent. Article 121 provides : “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.” Thus, under Article 121, “paragraph 3 rocks” are only capable of generating a territorial sea and a contiguous zone, whereas other islands can generate an exclusive economic zone and continental shelf as well. This   Op. cit. supra, footnote 129, p. 473, para. 1203 (B) (3) (c).   Ibid., p. 474, para. 1203 (B) (4) and (5). 141   See, e.g., Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, ICJ Reports 2007, p. 659 at p. 702, para. 137, where the Court determined that Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay in the Caribbean Sea all remain above high tide and thus fall within the definition of “islands” under LOS Convention Article 121. The Court further determined that they fell within the sovereignty of Honduras. Ibid., p. 760, para. 321. 139 140

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text emerged relatively early during the negotiations of the Third Law of the Sea Conference. Indeed, it appeared verbatim in the informal single negotiating text issued during the third session in 1975 142 and did not change in any of the subsequent negotiating texts 143, despite efforts in 1977 144 and 1982 145 to add additional text. 142   Informal single negotiating text, Part II, of 1975, document A/CONF.62/WP.8/PartII, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. IV (Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Third Session) (2009), p. 152 at pp. 170-171, Art. 132. For formal and informal documentation from the conference, see Myron H. Nordquist, Satya N. Nandan and Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea, 1982 : A Commentary, Vols. 1-6, 1985-2011. 143   Revised single negotiating text, Part II, of 1976, document A/CONF.62/WP.8/Rev.1/PartII, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. V (Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Fourth Session) (2009), p. 151 at p. 172, Art. 128 ; Informal composite negotiating text of 1978, document A/ CONF.62/WP.10, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. VIII (Informal Composite Negotiating Text, Sixth Session) (2009), p. 1 at p. 21, Art. 121 ; Informal composite negotiating text, revision 1, of 1978, document A/CONF.62/WP.10/Rev.1, ibid., p. 68, Art. 121. 144   Algeria, Iraq, Ireland, Libyan Arab Jamahiriya, Madagascar, Nicaragua, Romania, Turkey and United Republic of Cameroon proposal of 11 July 1977, document A/CONF.62/ C.2/L.96, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. VII (Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Sixth Session) (2009), p. 84 (proposing inclusion of language that : “Islands which are situated on the continental shelf or exclusive economic zone of another State, or which on the basis of their geographical location affect the normal continental shelf or exclusive economic zone of other States shall have no economic zone or continental shelf of their own”). 145   Romania proposal of 13 April 1982, document A/CONF. 62/L.118, in Official Records of the Third United Nations

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While the status of paragraphs 1 and 2 as customary international law seems relatively settled, some commentators have questioned whether paragraph 3 reflects customary international law 146, especially given State practice prior to the LOS Convention 147 and that the 1958 Convention on the Continental Shelf 148 contained no such exception. Further, a survey of contemporary State practice might reveal that some States claim full maritime entitlements to very small features, ones that are arguably “paragraph 3 rocks”. Yet, on balance, those views appear misguided. The lack of an exception in the 1958 Convention should be understood partly in light of that Convention’s relatively modest approach to the outer limit of the continental shelf, given the technology of the time, as compared with the 1982 LOS Convention. By the time the 1982 Convention Conference on the Law of the Sea, Vol. XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session) (2009), p. 225 (proposing as a new paragraph 4 to Article 121 the following : “4. Uninhabited islets should not have any effects on the maritime spaces belonging to the main coasts of the States concerned”). 146   See, e.g., Tanaka, The International Law of the Sea, op. cit., pp. 68-69 (“Overall it is doubtful that Article 121 (3) represents customary international law”). Tanaka’s position was taken just prior to the International Court’s 2012 judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia). 147   See Maria Silvana Fusillo, “The Legal Régime of Uninhabited ‘Rocks’ Lacking an Economic Life of their Own”, Italian Yearbook of International Law, Vol. 4 (1978-1979), p. 47 at pp. 47-49 ; Barbara Kwiatkowska and Alfred H. A. Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, Netherlands Yearbook International Law, Vol. 21 (1990), p. 139 at pp. 174-180. 148   Convention on the Continental Shelf, done at Geneva on 29 April 1958, United Nations, Treaty Series, Vol. 499, p. 311, Art. 1 (granting to all islands a continental shelf, since they were entitled to a territorial sea under Article 10 of the 1958 Convention on the Territorial Sea and the Contiguous Zone).

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was being adopted, many States and commentators viewed Article 121 as reflecting customary international law. For example, the conciliation commission with respect to the Iceland/Norway Jan Mayen dispute concluded in 1981, just prior to adoption of the Convention, that “this article reflects the present status of international law on this subject” 149. Further, as of 2016, nearly 170 States are parties to the LOS Convention, leaving relatively few States outside the convention regime, and thus suggesting widespread acceptance by States to the rules set forth in Article 121. Non-parties to the LOS Convention have not asserted that Article 121, paragraph 3, is inconsistent with customary international law. Indeed, in Territorial and Maritime Dispute (Nicaragua v. Colombia), where the Court was applying customary international law since Colombia was not a party to the LOS Convention, both parties assumed that Article 121 in its entirety was customary international law. Ultimately, the International Court itself in that case declared that “the legal régime of islands set out in UNCLOS Article 121 forms an indivisible régime, all of which . . . has the status of 150 customary international law”  . Any contemporary 149   Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen : Report and recommendations to the governments of Iceland and Norway, Decision of June 1981, Reports of International Arbitral Awards, Vol. XXVII, p. 10. The arbitral tribunal in St. Pierre et Miquelon essentially viewed Article 121, paragraph 2, as codifying customary international law just prior to the entry into force of the LOS Convention. See Case concerning Delimitation of Maritime Areas (St. Pierre and Miquelon), Reports of International Arbitral Awards, Vol. XXI, p. 265 (in French) and International Legal Materials, Vol. 31 (1992), p. 1145 at p. 1165, para. 49 (in English) (subsequent citations to English text). 150   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 674, para. 139 ; see Lucie Delabie, “Le fragile équilibre entre prévisibilité juridique et opportunité judiciaire en matière de délimitation maritime : l’arrêt de la Cour internationale de Justice dans l’affaire du

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practice by States Parties to the LOS Convention that advances or accepts claims to extended maritime zones based on very small, uninhabited islands does not reflect upon the status of customary international law ; it reflects either an interpretation or a violation of paragraph 3. State practice by non-Parties advancing or accepting such claims also likely reflects an interpretation or violation of a customary international law obligation that tracks paragraph 3. To the extent that there are any States or commentators that continue to believe that paragraph 3 does not reflect customary international law, it seems likely that, under the influence of the Court’s 2012 judgment and the LOS Convention itself 151, such views will eventually dissipate, leading to a consensus that all of Article 121 is settled customary international law 152. In any event, paragraph 1 affirms the basic rule that islands are naturally formed areas of land that are above water at high tide. The language of paragraph 1 traces its lineage to proposals made at the 1930 Hague Codification Conference 153, the 1956 International Law différend territorial et maritime (Nicaragua c. Colombie)”, Annuaire français de droit international, Vol. 58 (2012), p. 223 ; Jianjun Gao, “A Note on the Nicaragua v. Colombia Case”, Ocean Development & International Law, Vol. 44 (2013), p. 219. 151   See e.g., Jonathan I. Charney, “Rocks that Cannot Sustain Human Habitation”, American Journal of International Law, Vol. 93 (1999), p. 863 at p. 872. 152   See, e.g., Malcolm Evans, “Maritime Boundary Delimitation”, in Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea, op. cit., p. 263 (“it is now settled that [paragraph 3] reflects customary international law”). 153   At the 1930 Hague Codification Conference, the SubCommittee of the Committee of Experts indicated – in the context of measuring the territorial sea – that if “there are natural islands, not continuously submerged, situated off a coast, the inner zone of the sea shall be measured from these islands”. Report of Sub-Committee II of the Second Commission (Territorial Waters), LN Doc. C. 196, M70, 1927 V. As such, low-tide elevations were viewed by the Sub-Committee as a

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Commission Articles concerning the Law of the Sea 154, and the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone 155. Paragraph 1 states that an island is a “naturally formed” area of land. The words “naturally formed” were not included in the ILC’s 1956 Articles 156, but were included in the text of the 1958 and 1982 Conventions. type of “island” deemed relevant to the drawing of baselines. The reactions by States demonstrated alternative views that “islands” need only be above water at low tide or that “islands” must be above water at high tide. Ultimately, the proposals of the Hague Conference moved in the direction of establishing that an “island is an area of land, surrounded by water, which is permanently above high-water mark”, Report of the Second Commission (Territorial Waters), LN Doc. C. 230, M.117, 1930 V., p. 13, while still allowing lowtide elevations within the territorial sea to serve as points for establishing baselines. For a discussion, see Jayewardene, op. cit., pp. 3-4. While the Hague Codification Conference failed, it influenced the later work of the UN International Law Commission. Ibid., p. 4. 154   Articles concerning the Law of the Sea, Art. 71 (3), Yearbook of the International Law Commission 1956, Vol. II, p. 253 at p. 257. Article 10 of the ILC Articles reads : “Every island has its own territorial sea. An island is an area of land, surrounded by water, which in normal circumstances is permanently above high-water mark.” This language was slightly modified at the 1958 Geneva Conference based on a proposal by the United States, which read : “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.” United States of America : proposal (Article 10), document A/CONF.13/C.1/L.112, in Official Records of the United Nations Conference on the Law of the Sea, Vol. III (First Committee Summary Records) (2009), p. 242. 155   LOS Convention Article 121, paragraph 1, is identical to Article 10, paragraph 1, of the 1958 Convention on the Territorial Sea and the Contiguous Zone. Article 121, paragraphs 2 and 3, however, were not contained in the 1958 Convention. 156   Even so, the ILC’s commentary to draft Article 10 of its 1956 Draft Articles provides in part that “the following are not considered islands and have no territorial sea :

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As was the case for low-tide elevations, such words implicitly mean that a feature created artificially, such as an oil platform constructed on the continental shelf or a light-house built on a submerged bank, cannot fall within the scope of Article 121. This point is made explicit in LOS Convention Article 60, paragraph 8, which reads : “Artificial islands, installations and structures do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf.” 157 This does not mean that “artificial islands”, installations and structures, however, fall outside the scope of (i)  Elevations which are above water at low tide only. Even if an installation is built on such an elevation and is itself permanently above water – a lighthouse, for example – the elevation is not an ‘island’ as understood in this article ; (ii) Technical installations built on the sea-bed, such as installations used for the exploitation of the continental shelf (see article 71). The Commission nevertheless proposed that a safety zone around such installations should be recognized in view of their extreme vulnerability. It does not consider that a similar measure is required in the case of lighthouses.” Articles concerning the Law of the Sea, op. cit., p. 270, paras. 2 (i)-(ii). Further, the Articles themselves were clear that continental shelf installations were not “islands”. See ibid., p. 299, Art. 71 (3) (“Such installations, though under the jurisdiction of the coastal State, do not possess the status of islands. They have no territorial sea of their own, and their presence does not affect the delimitation of the territorial sea of the coastal State”). 157   LOS Convention, Art. 60 (8) ; see also Convention on the Continental Shelf, Art. 5 (4). Although the terms are not defined in the LOS Convention, “artificial island” likely refers to a feature created by the dumping on the seafloor of natural substances like sand, rocks and gravel, while “installation and structures” refers to a feature resting upon piles that have been driven into the seafloor, as well as concrete structures.

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the LOS Convention 158. Rather, the LOS Convention regulates them in several respects. Under Article 11, offshore installations and artificial islands are not considered as permanent harbour works and therefore cannot be used as baselines for determining the territorial sea 159. Under Article 56, the coastal State has jurisdiction with respect to the establishment and use of artificial islands, installations and structures in the exclusive economic zone 160. Indeed, under Article 60, the coastal State in its exclusive economic zone has “the exclusive right to construct and to authorize and regulate the construction, operation and use of” artificial islands and some installations and structures 161, a principle that is extended to the continental shelf by Article 80 162. In the Philippines v. China arbitration, the tribunal found that China was constructing an artificial island on a low-tide elevation – 158   See generally Nikos Papadakis, The International Legal Regime of Artificial Islands, Sijthoff, 1977 ; F. Münch, “Les îles artificielles et les installations en mer”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 38 (1978), p. 933 ; S. J. de Groot, “An Assessment of the Potential Environmental Impact of Large-Scale Sand-Dredging for the Building of Artificial Islands in the North Sea”, Ocean Management, Vol. 5 (1979), p. 211 ; Cordula Fitzpatrick, Künstliche Inseln und Anlagen auf See : Der völkerrechtliche Rahmen für die Errichtung und den Betrieb künstlicher Inseln und Anlagen, Peter Lang, 1998 ; B. A. Diba, “Legal Regime of the Artificial Islands in the Caspian Sea”, Soochow Law Journal, Vol. 8 (2011), p. 145 ; Alex G. Oude Elferink, “Artificial Islands, Installations and Structures”, in Max Planck Encyclopedia of Public International Law, Vol. I, op. cit., p. 661. 159   LOS Convention, Art. 11. 160   Ibid., Art. 56 (1) (b) ; see Nikos Papadakis, “Artificial Islands, Installations and Structures in the Exclusive Economic Zone”, p. 99, in Benedetto Conforti (ed.), La zona economica esclusiva, Milan, A. Giuffrè, 1983. 161   LOS Convention, Art. 60 (1). 162   Ibid., Art. 80 (“Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf”).

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Mischief Reef – located on the Philippines’ continental shelf and in its exclusive economic zone without the latter’s consent, thereby violating LOS Convention Articles 60 and 80 163. At the same time, the coastal State is obliged to give due notice to other States regarding the construction of any artificial islands, installations and structures and to take certain other steps with respect to the safety of navigation, such as by establishing a safety zone around them 164. Further, the coastal State can establish conditions for the laying and use of cables or pipelines in connection with the operation of artificial islands, installations and structures that are under its jurisdiction 165. Although the coastal State “shall, in normal circumstances, grant” consent to marine scientific research by States and international organizations on its continental shelf or in its exclusive economic zone 166, one of the bases on which it may withhold consent is when the research project entails construction of an artificial island, installation or structure 167. The coastal State must adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from such features 168. On the high seas, all States – whether coastal or land-locked – have the freedom to construct artificial islands, installations and structures subject to the rights 163   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 413-414, 476, paras. 1031-1038, 1043, 1203 (B) (14). 164   LOS Convention, Arts. 60 (3)-(5), (7). While the coastal State may establish such a safety zone, the coastal State does not exercise sovereignty, sovereign rights, or jurisdiction in the zone in the sense that it does in the territorial sea, exclusive economic zone, or continental shelf. 165   Ibid., Art. 79 (4). 166   Ibid., Art. 246 (3). 167   Ibid., Art. 246 (5) (c). 168   Ibid., Art. 208 (1) ; see also ibid., Art. 214.

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of a coastal State with respect to an extended continental shelf 169. Such rights and obligations are sometimes in dispute between States. For example, in the Arctic Sunrise case, the Netherlands claimed before an arbitral tribunal that Russia had breached its obligation under Article 60, paragraph 5, by establishing a zone of three nautical miles around a Russian oil platform, located in Russia’s exclusive economic zone, in which navigation without prior Russian authorization was prohibited. Although paragraph 5 provides that the maximum allowable breadth of a safety zone around an artificial island, installation or structure is 500 metres, the arbitral tribunal found that Russia’s notices to mariners with respect to the oil platform did not actually establish such a zone 170. Given that an island is a “naturally formed” area of land, reclamation efforts that artificially transform a lowtide elevation into a feature that is permanently above the water at high tide cannot create an “island” within the meaning of Article 121. Thus, the dredging of sand from the seabed to transform a shoal or reef into a feature that is permanently above the water at high tide does not create an “island”. Such action is not unlawful as such, though it might be conducted in a way that violates Part XII of the LOS Convention on protection and preservation of the marine environment 171. By contrast, reclamation 169   LOS Convention, Art. 87 (1) (d). Curiously, there is no provision in the LOS Convention for the establishment of safety zones around an artificial island constructed on the high seas. 170   The Arctic Sunrise Arbitration (Netherlands v. Russia), Award on the Merits of 14 August 2015, PCA Case No. 201402, paras. 202-220, reprinted in International Legal Materials, Vol. 55 (2016), p. 5 at pp. 35-38, and available at : http ://www. pcacases.com/web/view/21. 171   In the Philippines v. China arbitration, the tribunal found that construction activities on the islands of Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North), and Johnson Reef violated several provisions of the LOS Convention. The South

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efforts that take a feature that is already, in its natural condition, an island, and expands the size of that feature, may have the effect of increasing the “footprint” of the land mass for purposes of drawing baselines. This would seem to follow from the ability of States, such as the Netherlands, to expand its existing landmass with potential concomitant effects on the location of its baselines 172. Similarly, human intervention that seeks to prevent a feature that is already, in its natural condition, an island, from eroding to the point of being a low-tide elevation, would also appear not to change its status as an island 173. The International Court of Justice in the Qatar China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, paras. 976-991, 993, 1203 (B) (13) (citing to LOS Convention Articles 192, 194 (1), 194 (5), 197, 123 and 206). 172   See International Law Association, Committee on Baselines under the International Law of the Sea, Report, Sofia Conference (2012), p. 31, available at : http ://www.ilahq.org/index.php/committees (“The Committee concludes that the normal baseline is ambulatory, moving seaward to reflect changes to the coast caused by accretion, land rise, and the construction of human-made structures associated with harbour systems, coastal protection and land reclamation projects, and also landward to reflect changes caused by erosion and sea level rise”). Whether an artificial work in fact can serve as a basepoint depends on the context. In the Black Sea case, the International Court did not regard the seaward end of the Sulina dyke as a relevant basepoint for constructing the provisional equidistance line, because “no convincing evidence has been presented that this dyke serves any direct purpose in port activities”. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, ICJ Reports 2009, p. 108, para. 138. By contrast, the landward end of the dyke, though not an integral part of the Romanian mainland, was viewed as a relevant base point because it was a fixed point on the mainland, protected from shifts in the coastline due to marine processes, and did not give “greater importance to an installation than to the physical geography of the landmass”. Ibid., p. 108, para. 139. 173   For example, Japan encased the small islands of Okinotorishima in concrete in 1989 so as to prevent their erosion. See Tanaka, The International Law of the Sea, op. cit., p. 66.

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v. Bahrain case found that the island of Qit’at Jarah qualified as an island, even though man-made alterations had diminished the island, because the island had returned to its natural condition by subsequent alluvial accretion 174. LOS Convention Article 121, paragraph 1, also says that an island is a naturally formed area of “land”. The term “land” suggests that the feature must be terra firma ; the International Court in Territorial and Maritime Dispute (Nicaragua v. Colombia) stated that it must be “composed of solid material, attached to the substrate, and not of loose debris” 175. Icebergs, therefore, are not islands 176. Whether a feature is, in fact, terra firma can be a matter of dispute. The majority in the 2001 Qatar v. Bahrain case viewed the island of Qit’at Jaradah as terra firma 177, but three judges in dissent did not 178. Finally, Article 121, paragraph 1, says that islands must be a naturally formed area of land “surrounded by water”. This suggests that a feature located close to a coastal State and connected to it by a causeway, or by a sandbar that dries out at low tide, is not an island for purposes of Article 121 but, rather, is a feature of the coastal State itself 179. 174   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 99, paras. 192, 195. 175   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 645, para. 37. 176   Tanaka, The International Law of the Sea, op. cit., p. 64 ; Symmons, The Maritime Zones of Islands in International Law, op. cit., pp. 21-24. 177   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 99, at pp. 99, 104, para. 197, 219. 178   Ibid., pp. 209-210, paras. 199-200 ; joint dissenting opinion of Judges Bedjaoui, Ranjeva and Koroma. 179   Tanaka, The International Law of the Sea, op. cit., p. 65 ; Symmons, The Maritime Zones of Islands in International Law, op. cit., pp. 41-42.

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As a geological matter, islands may come to exist in various ways, and different names may be used when describing them, but these terms typically do not have any particular legal meaning. For example, “cays” have been described as “small, low islands composed largely of sand derived from the physical breakdown of coral reefs by wave action and subsequent reworking by wind. Larger cays can accumulate enough sediment to allow for colonization and fixation by vegetation.” 180 An “atoll” has been described as “a coral reef enclosing a lagoon” 181. Islands that are very small are sometimes called “islets”. C.  Islands that Are “Rocks” The text of paragraph 1 alone was not sufficient to address the concerns of States that met to negotiate the 1982 LOS Convention. Because it was anticipated early in the Third Law of the Sea Conference that there would be expanded zones of maritime jurisdiction in the form of the exclusive economic zone and the continental shelf, the generation of such zones by all islands of any kind had significant implications for delimitations between States, high seas freedoms and rights relating to the deep seabed. Some States supported according these expanded zones to all islands. For example, Fiji, New Zealand, Tonga and Western Samoa proposed that the “economic zone of an island and its continental shelf are determined in accordance with the provisions of this Convention applicable to other land territory” 182. 180   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, pp. 637-638, para. 20. 181   Ibid. 182   Fiji, New Zealand, Tonga and Western Samoa proposal of 30 July 1974, document A/CONF.62/C.2/L.30, in Official Records of the Third United Nations Conference on the Law

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Yet many other States opposed allowing all islands to generate expanded zones and some sought to limit the of the Sea, Vol. III (Documents of the Conference, First and Second Sessions) (2009), pp. 210-211 ; see also Greece proposal of 25 July 1974, document A/CONF.62/C.2/L.22, ibid., pp. 200-201 ; Greece proposal of 9 August 1974, document A/CONF.62/C.2/L.50, ibid., p. 227. For oral explanations by Fiji, New Zealand, Tonga, Western Samoa and Greece to the Second Committee of their proposals, see Fiji on 14 August 1974, document A/CONF.62/C.2/SR.39, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), p. 283, paras. 48-51 ; New Zealand on 13 August 1974, document A/CONF.62/C.2/SR.38, ibid., pp. 278-279, paras. 21, 69-72 ; Tonga on 1 August 1974, document A/CONF.62/C.2/ SR.24, ibid., p. 190, paras. 45-47 ; Western Samoa, ibid., pp. 189-190, paras. 37-38 ; Greece, ibid., p. 189, para. 27 ; Western Samoa on 14 August 1974, document A/CONF.62/C.2/ SR.39, ibid., p. 281, paras. 22-28 ; Tonga, ibid., p. 282, paras. 38-40 ; Greece, ibid., p. 285-286, paras. 74-80. For other oral interventions in the Second Committee supporting the ability of all islands to generate full maritime zones, see Japan on 26 July 1974, document A/CONF.62/C.2/ SR.17, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), p. 148, para. 25 (“islands and islets, regardless of their size or location, should in principle be entitled to the coastal sea-bed area on the same footing as the continental part of the territory”) ; Denmark on 30 July 1974, document A/ CONF.62/C.2/SR.20, ibid., p. 162, para. 24 (“International law concerning the delimitation of the continental shelf was, as a general rule, the same for islands as for the State as a whole”) ; New Zealand on 31 July 1974, document A/CONF.62/C.2/ SR.21, ibid., p. 170, para. 5 (“It was essential that no doubt should be cast on the principle of equitable treatment of all types of land territory”) ; Cyprus on 31 July 1974, document A/CONF.62/C.2/SR.22, ibid., p. 177, para. 88 (“islands should be in the same position as continental territories and should therefore be entitled to the same rights as other territories in respect of the exclusive economic zone”) ; Trinidad and Tobago on 14 August 1974, document A/CONF.62/C.2/SR.39, ibid., p. 282, para. 42 (rejecting “proposals aimed at establishing a

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effects of islands on maritime boundary delimitation. As Singapore’s delegate, Tommy Koh, argued : “it would be unjust, and the common heritage of mankind would be further diminished, if every island, irrespective of its characteristics, was automatically entitled to claim a uniform economic zone. Such an approach would give inequitable benefits to coastal States with small or uninhabited islands scattered over a wide expanse of the ocean. The economic zone of a régime that sought to curtail the jurisdiction and sovereignty of islands over the ocean space adjacent to their coasts” as “discriminatory”) ; Canada, op. cit. supra, p. 284, para. 60 (“Some islets were larger than many countries participating in the Conference and some islands were important to a State because of their historical links”) ; Cyprus on 14 August 1974, document A/CONF.62/C.2/SR.40, ibid., p. 287, para. 17 (maintaining that “no distinction whatsoever should be made between islands, irrespective of their size and population, and continental land masses, and that the principles for determining the territorial sea, the continental shelf and the economic zone of islands should be exactly the same as those that were applied in determining the corresponding national jurisdictions of continental land masses”). Similar positions were advanced in the meetings of the plenary. See, e.g., Cyprus on 12 July 1974, document A/CONF. 62/SR.40, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. I (Summary Records of Plenary Meetings of the First and Second Sessions, and of Meetings of the General Committee, Second Session) (2009), p. 175, para. 40 ; France on 11 July 1974, document A/CONF. 62/SR.37, ibid., p. 154, para. 18 ; Iran on 26 August 1980, document A/CONF.62/SR.137, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XIV (Summary Records, Plenary, General Committee, First and Third Committees, as well as Documents of the Conference, Resumed Ninth Session) (2009), p. 42, para. 4 ; Netherlands on 9 July 1974, document A/CONF.62/SR.34, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. I (Summary Records of Plenary Meetings of the First and Second Sessions, and of Meetings of the General Committee, Second Session) (2009), p. 141, para. 27.

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barren rock would be larger than the land territory of many States and larger than the economic zones of many coastal States.” 183 Consequently, various proposals were made in 1974 184 to limit the effects of islands in generating maritime zones 185 or with respect to maritime boundary 183   Singapore on 14 August 1974, document A/CONF.62/ C.2/SR.39, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), p. 285, para. 72. 184   Some of the resistance to the ability of all islands to generate full maritime zones related to whether islands still under colonial control should be permitted to do so. See Argentina, Bolivia, Brazil, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Libyan Arab Republic, Mexico, Morocco, Nicaragua, Panama, Paraguay, Peru, Uruguay proposal of 13 August 1974, document A/CONF.62/C.2/L.58, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. III (Documents of the Conference, First and Second Sessions) (2009), p. 232 (“The rights recognized or established in this Convention shall not be invoked by the colonial or occupying Power in respect of islands and other territories under colonial domination or foreign occupation as long as that situation persists”) ; see also Venezuela on 14 August 1974, document A/CONF.62/C.2/ SR.40, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), p. 286, paras. 1-3 ; Uruguay, ibid., paras. 4-5 ; Ecuador, ibid., p. 287, paras. 10-12 ; Guatemala, ibid., para. 21 ; Mexico, ibid., p. 289, paras. 46-47. 185   See, e.g., Romania proposal of 23 July 1974, document A/CONF.62/C.2/L.18, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. III (Documents of the Conference, First and Second Sessions) (2009), pp. 195-196 ; Algeria, Dahomey, Guinea, Ivory Coast, Liberia, Madagascar, Mali, Mauritania, Morocco, Sierra Leone, Sudan, Tunisia, Upper Volta and Zambia proposal of 27 August 1974, document A/CONF.62/C.2/L.62/Rev.1, ibid., pp. 232-233. For explanations of the latter proposal, see Tunisia on 14 August 1974, document A/CONF.62/C.2/SR.40, in Official Records of

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delimitation 186 when they were of a certain size, population or location, sometimes by employing terms such the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), pp. 287-288, paras. 22-30 ; Mauritius, ibid., p. 288, para. 32 ; Madagascar, ibid., p. 289, para. 48. For oral interventions in the Second Committee opposing the ability of all islands to generate full maritime zones, see Romania on 30 July 1974, document A/CONF.62/C.2/SR.19, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), pp. 156-157, paras. 5-10 (Romania’s explanation to the Second Committee of its proposal) ; Madagascar on 31 July 1974, document A/CONF.62/C.2/SR.22, ibid., p. 174, para. 51 (“The same principles of equity should govern the establishment of a special régime for small islands, account being taken of their surface, population, contiguity to the principal territory, and geological structure. Sovereignty over uninhabited islands could serve only as a pretext to further the selfish interests of States, whether individual or collective”) ; Tunisia on 5 August 1974, document A/CONF.62/C.2/SR.26, ibid., p. 204, para. 21 (arguing that island States should have the same rights as continental States, but in the case of other islands further study was needed) ; Burma on 6 August 1974, document A/CONF.62/ C.2/SR.29, ibid., p. 224, para. 8 ; Denmark on 14 August 1974, document A/CONF.62/C.2/SR.39, ibid., p. 279, para. 5  ; Colombia, ibid., pp. 280-81, paras. 17-21. Similar positions were advanced in the meetings of the plenary. See, e.g., Romania on 8 July 1974, document A/CONF. 62/SR.32, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. I (Summary Records of Plenary Meetings of the First and Second Sessions, and of Meetings of the General Committee, Second Session) (2009), p. 128, para. 13 ; Turkey on 12 July 1974, document A/CONF. 62/SR.39, ibid., pp. 168-169, paras. 29-32. 186   See, e.g., Ireland proposal of 6 August 1974, document A/CONF.62/C.2/L.43, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. III (Documents of the Conference, First and Second Sessions) (2009), pp. 220221, para. 2 (“In determining a median line for the purposes of this article account may be taken of an island only if it is inhabited and if (i) it is situated less than the breadth of the

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as “islets”, “islands similar to islets”, or “rocks”. For example, Romania proposed that an “islet” be defined as a “naturally formed elevation of land (or simply an eminence of the seabed) less than one square kilometre in area, surrounded by water, which is above water at high tide”, while an “island similar to an islet” was more than one square kilometre, but less than a size still to be negotiated, “which is not or cannot be inhabited (permanently) or which does not or cannot have its own economic life” 187. Under the Romanian proposal, neither feature – “islets” or “islands similar to islets” – would generate full maritime zones, but they might generate a security area or even a territorial sea 188. Turkey proposed that : first, an “island situated in the economic zone or on the continental shelf of other States shall have no economic zone or continental shelf of its own if it does not territorial sea from the low water line of the coast ; or (ii) it contains at least one tenth of the land area and population of the State concerned”) ; France proposal of 22 August 1974, document A/CONF.62/C.2/L.74, op. cit. supra, p. 237, para. 2 (for the purpose of delimiting the continental shelf or exclusive economic zone, “account shall be taken, inter alia, of the special nature of certain circumstances, including the existence of islands or islets situated in the area to be delimited or of such a kind that they might affect the delimitation to be carried out”) ; see also France on 23 August 1974, document A/CONF.62/C.2/ SR.43, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), pp. 294-295, paras. 17-20. 187   Romania proposal of 12 August 1974, document A/ CONF.62/C.2/L.53, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. III (Documents of the Conference, First and Second Sessions) (2009), p. 228, Art. 1. By contrast, the geographer of the United States proposed that an “islet” be between 0.001 and 1 square mile and that a “rock” be less than 0.001 square mile. See Jayewardene, op. cit., pp. 5-6. 188   Romania proposal of 12 August 1974, document A/CONF. 62/C.2/L.53, pp. 228-229, Art. 2.

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contain at least one tenth of the land area and population of the State to which it belongs” ; second, that islands “without economic life and situated outside the territorial sea of a State shall have no marine space of their own” ; and third, that “[r]ocks and low-tide elevations shall have no marine space of their own” 189. Detailed proposals as to the size, population or location of an island ultimately did not work their way into the text of the LOS Convention. States may have agreed with the United Kingdom, which doubted that such a detailed “approach could result in any generally applicable rules that would be equitable in all cases” and that “any such formulation was in grave danger of discounting many islands of both absolute and relative importance” 190. Even so, the concept of making a distinction of some kind between types of islands did survive, albeit in the form of the relatively simple text that became paragraph 3 of Article 121. While several States at the Third Conference on the Law of the Sea sought to delete paragraph 3 191, a sufficient number of 189   Turkey proposal of 13 August 1974, document A/CONF. 62/C.2/L.55, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. III (Documents of the Conference, First and Second Sessions) (2009), p. 230, Art. 3 (2)-(4) ; see also Turkey on 14 August 1974, document A/CONF.62/C.2/SR.39, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), p. 284, paras. 62-63. 190   United Kingdom on 14 August 1974, document A/CONF. 62/C.2/SR.40, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. II (Summary Records of the Meetings of the First, Second and Third Committees, Second Session) (2009), p. 288, para. 35. 191   See, e.g., Algeria on 3 April 1980, document A/CONF.62/ SR.128, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XIII (Summary Records, Plenary, General Committee, First and Third Committees, as well as Documents of the Conference, Ninth Session) (2009), p. 48, para. 228. (finding that the text was “extremely danger-

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other States supported it 192, and the latter group carried the day. As adopted, Article 121, paragraph 2, provides ous, and could lead to serious disputes if applied, as tiny islands might gain more importance than individual States”) ; France on 19 May 1978, document A/CONF.62/SR.105, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. IX (Summary Records, Plenary, General Committee, First and Third Committees, as well as Documents of the Conference, Seventh and Resumed Seventh Session) (2009), p. 79, para. 34 ; France on 3 April 1980, document A/CONF.62/SR.127, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XIII (Summary Records, Plenary, General Committee, First and Third Committees, as well as Documents of the Conference, Ninth Session) (2009), p. 30, para. 72 ; Venezuela on 25 August 1980, document A/CONF.62/SR.135, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XIV (Summary Records, Plenary, General Committee, First and Third Committees, as well as Documents of the Conference, Resumed Ninth Session) (2009), p. 21, para. 18 ; Venezuela on 30 March 1982, document A/CONF.62/SR.158, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session) (2009), p. 15, para. 14. As late as the last year of the negotiations, the United Kingdom proposed in writing deletion of paragraph 3. See United Kingdom proposal of 13 April 1982, document A/CONF.62/L.126, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session) (2009), p. 233. Some States supported that proposal. See, e.g., Brazil on 16 April 1982, document A/CONF.62/SR.170, ibid., p. 104, para. 47 ; Iran on 16 April 1982, document A/CONF.62/SR.172, ibid., p. 117, para. 38. 192   See, e.g., Denmark on 16 April 1982, document A/CONF. 62/SR.171, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session) (2009), p. 106, para. 8 (maintaining that the UK proposal to delete paragraph 3 would “create grave obstacles in the search for a consensus. Without such a provision tiny and barren islands, looked upon in the

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that islands normally have all the same maritime zones as any land territory, except as provided in paragraph 3. Paragraph 3 provides that “rocks which cannot sustain human habitation or economic life of their own” do not generate the full extent of those maritime zones (they do not generate an exclusive economic zone or a continental shelf). Thus, paragraphs 2 and 3 were a compromise 193 between those States who wished all islands to generate the full range of maritime zones and those States who wished to limit the ability of islands to do so. The compromise was to allow islands normally to generate the full range of maritime zones, but not in situations where the island is nothing more than a past as mere obstacles to navigation, would miraculously become the golden keys to vast maritime zones. That would indeed be an unwarranted and unacceptable consequence of the new law of the sea”) ; Dominican Republic on 27 August 1980, document A/CONF.62/SR.139, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XIV (Summary Records, Plenary, General Committee, First and Third Committees, as well as Documents of the Conference, Resumed Ninth Session) (2009), p. 62, para. 2 ; Dominica on 27 August 1980, document A/CONF.62/SR.140, ibid., p. 77, para. 29 (“Any attempt to delete paragraph 3 from article 121 would serve only to complicate the already formidable problem of delimiting maritime boundaries in the Carribbean”) ; Republic of Korea on 16 April 1982, document A/CONF.62/SR.171, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session) (2009), p. 106, para. 4 (stating that it “had difficulty in supporting the deletion of article 121, paragraph 3 . . . because it undermined the delicate balance achieved through the long process of negotiations on the régime of islands”). 193   See, e.g., Cameroon on 1 April 1982, document A/CONF. 62/SR.165, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session) (2009), p. 80, para. 134 (indicating that “his delegation had accepted the current definitions [in article 121] in a spirit of compromise”).

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paragraph 3 “rock” 194. Reflecting on this compromise, Jonathan Charney opined that “the primary purpose of Article 121 (3) was to ensure that insignificant features, particularly those far from areas claimed by other states, could not generate broad zones of national jurisdiction in the middle of the ocean” 195. Yet the text of paragraph 3 leaves many questions unanswered and has sparked considerable debate and uncertainty 196, which merits brief consideration of the terms used in that paragraph. 194   Jon M. Van Dyke, “Rocks”, Max Planck Encyclopedia of Public International Law, Vol. VIII, op. cit., p. 1008. 195   Charney, “Rocks that Cannot Sustain Human Habitation”, op. cit., p. 866. 196   For analysis of LOS Convention Article 121 (3), see Jon M. Van Dyke and Robert A. Brooks, “Uninhabited Islands : Their Impact on the Ownership of the Oceans’ Resources”, Ocean Development & International Law, Vol. 12 (1983), p. 265 ; Robert Kolb, “L’interprétation de l’article 121, paragraph 3, de la Convention de Montego Bay sur le droit de la mer : Les ‘roches que ne se prêtent pas à l’habitation humaine ou à une vie économique proper . . .’ ”, Annuaire français de droit international, Vol. 40 (1994), p. 876 ; Syméon Karagiannis, “Les rochers qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre et le droit de la mer”, Revue belge de droit international, Vol. 29 (1996), p. 559 ; Alex G. Oude Elferink, “Is It Either Necessary or Possible to Clarify the Provision on Rocks of Article 121 (3) of the Law of the Sea Convention ?”, in M. Pratt and J. A. Brown (eds.), Borderlands under Stress, Kluwer Law International, 2000, p. 390 ; Roberto Lavalle, “Not Quite a Sure Thing : The Maritime Areas of Rocks and Low-Tide Elevations under the UN Law of the Sea Convention”, International Journal of Marine and Coastal Law, Vol. 19 (2004), p. 43 ; Clive Schofield, “The Trouble with Islands : The Definition and Role of Islands and Rocks in Maritime Boundary Delimitation”, in Hong and Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, op. cit., p. 19 ; Myron H. Nordquist, “Textual Interpretation of Article 121 in the UN Convention on the Law of the Sea”, in H. P. Hestermeyer et al. (eds.), Coexistence, Cooperation and Solidarity : Liber Amicorum Rüdiger Wolfrum, Vol. I, Martinus Nijhoff, 2011, p. 991 ; Barbara Kwiatkowska and Alfred H. A. Soons, “Some

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“Rock”. While there is no definition of the word “rock” in the LOS Convention, it suggests several possible characteristics. First, it could suggest a geological characteristic, in the nature of a “rocky elevation of ground, surrounded by water” 197. Courts and tribunals have rejected that interpretation 198. Second, it could suggest a size characteristic, in the nature of a relatively small protuberance from the sea. Some courts and tribunals have supported this interpretation, finding that relatively large features are not “paragraph 3 rocks”. An example is the Norwegian Supreme Court in 1996, which found that a feature 13.2 square kilometres in size (known as Abel Island), located in the Norwegian archipelago of Svalbard, was too large to be a “rock” within the meaning of Article 121, paragraph 3 199. Similarly, the Reflections on the Ever Puzzling Rocks-Principle under UNCLOS Article 121 (3)”, in Giuliana Ziccardi Capaldo (ed.), The Global Community : Yearbook of International Law and Jurisprudence, Oxford University Press, 2012, p. 111 ; David Anderson, “Islands and Rocks in the Modern Law of the Sea”, in Myron H. Nordquist et al. (eds.), The Law of the Sea Convention : US Accession and Globalization, Martinus Nijhoff, 2012, p. 307 ; Erik Franckx, “The Regime of Islands and Rocks”, in David J. Attard, Malgosia Fitzmaurice and Norman A. Martínez Gutiérrez (eds.), The IMLI Manual on International Maritime Law, Vol. 1, Oxford University Press, 2014, p. 99 ; Paul von Mühlendahl, “Tiny Land Features in Recent Maritime Delimitation Case Law”, International Journal of Marine and Coastal Law, Vol. 31 (2016), p. 1. 197   See Algeria et al. proposal of 27 August 1974, A/CONF. 62/C.2/L.62/Rev.1, p. 232, Art. 1 (3). 198   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 645, para. 37 ; The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 205-206, paras. 479-482. 199   Public Prosecutor v. Haraldsson and Others, 7 May 1996, Supreme Court of Norway, in International Law Reports, Vol. 140, p. 559 ; see Robin Churchill, “Norway : Supreme Court Judgment on Law of the Sea Issues”, International Journal of Marine and Coastal Law, Vol. 11 (1996), p. 576 at p. 579.

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International Tribunal for the Law of the Sea implicitly regarded Australia’s Heard Island, which is 368 square kilometres in size, as falling outside the scope of Article 121, paragraph 3, despite its being completely covered by snow and ice 200. Third, “rock” could suggest other characteristics of the island’s overall condition, such as its general barrenness. Further, though the term “rock” is used, the feature is an “island” ; as previously discussed, an island is a “naturally formed” area of land. As was the case with respect to the transformation of low-tide elevations into islands, a State cannot transform a “rock” into a nonparagraph 3 island by means of artificial works or land reclamation. Both the text and the spirit of Article 121 are directed at consideration of the rock in its natural condition. “Which cannot sustain”. A rock falling within paragraph 3 is a feature that “cannot sustain” human habitation or economic life. The words “cannot sustain” appear to speak to the objective ability of the feature to sustain human habitation or economic life, rather than whether the feature is actually doing so at any given time 201. Beyond that, however, the words are susceptible to different interpretations. On one end of the spectrum, they might be regarded as speaking to any conceivable ability of the feature to sustain human habitation or life. Thus, if you placed a human on the feature with sufficient supplies of fresh water and food, could he or 200   See Volga Case (Russian Federation v. Australia) (Case No. 11), Prompt Release Judgment of 23 December 2002, ITLOS Reports 2002, p. 10. In deciding the case, the tribunal proceeded on the basis that Heard Island has an exclusive economic zone, in which the Volga was detained by Australia. Ibid., paras. 23, 32. Vice-President Vukas dissociated himself from the tribunal’s position. Ibid., Declaration of Vice-President Vukas, p. 42 at p. 44, para. 6. 201   Tanaka, The International Law of the Sea, op. cit., p. 66.

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she survive over time 202 ? If so, then perhaps the feature is not a paragraph 3 “rock”. This approach would place many small features outside the scope of paragraph 3, leaving it to cover just the tiniest of islands 203. On the other end of the spectrum, the words “cannot sustain” might be speaking to whether the feature lends itself to human habitation or economic life ; in other words, is it a place that people have lived in the ordinary course of the establishment of human settlement ? This approach would likely place not just the tiniest of islands within the scope of Article 121, paragraph 3, but also many other islands, including reefs and cays where humans would not seek out a life. “Human habitation or economic life”. Paragraph 3 refers to a rock that cannot sustain “human habitation or economic life”. That wording might suggest something more than permanent survival of a single human ; it might suggest the ability of the feature to support a socioeconomic community. Or it might suggest something less than permanent survival, such as a place where fishers might come for a few weeks or months to shelter while engaged in seasonal fishing, even if they could not survive on the feature indefinitely. The two concepts are presented in English with a disjunctive “or” whereas an earlier 202   Comparable language first emerged in the Romanian proposal of 12 August 1974. See document A/CONF.62/ C.2/L.53, op. cit., Art. 1. 203   The approach might be said to animate the reasoning of a lower court decision in the United States, which concluded that habitation need not be “part of an ongoing community that sustains itself and continues through generations”. United States v. Marshalls 201, Order Regarding Motion to Dismiss, 2008 US Dist. LEXIS 38627, *11 (D. Guam, 8 May 2008) (finding that the uninhabited Howland and Baker Islands did not fall within the scope of Article 121, paragraph 3, given that they can sustain human habitation, have had periods of habitation in the relatively recent past, and have played a role in various economic ventures).

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version of the provision proposed during the LOS Convention negotiations used “and”, leading some scholars to maintain that only one of the two concepts need be established 204. Other scholars have argued that “human habitation or economic life” is best conceived of as an integrated concept rather than as two alternatives 205 a view that may be supported by the Arabic and Chinese texts 206. “Of their own”. The phrase in English “of their own” appears to modify the verb “sustain” and to apply to both human habitation and economic life. As such, it appears to indicate that the rock must be able to sustain, by itself, human habitation or economic life. While the “natural” state of the island is not referenced in paragraph 3 (unlike paragraph 1), the phrase “of their own” may carry the same connotation. Yet other equally authentic texts of the Convention may point in a different direction ; the Chinese text uses a term that appears not to require an ability to survive independently 207. Tanaka points out that there are some features that are entirely supplied from external sources – such as Norway’s Jan Mayen Island – which nevertheless are not regarded as “paragraph 3 rocks” 208. As previously suggested, one explanation for this may be that once a feature reaches a certain size (Jan Mayan Island is some 380 square kilometres), then the feature will not be regarded as a “rock” and therefore does not fall within the scope of Article 121, paragraph 3, 204   See, e.g., Charney, “Rocks that Cannot Sustain Human Habitation”, op. cit., p. 868. 205   See Dominica on 27 August 1980, A/CONF.62/SR.140, p. 77, para. 29 (stating that it “interpreted the word ‘or’ in the first line to mean ‘and’ ”) ; Kolb, op. cit., p. 906. 206   Charney, “Rocks that Cannot Sustain Human Habitation”, op. cit., p. 871. 207   See ibid. 208   Tanaka, The International Law of the Sea, op. cit., pp. 6768.

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regardless of whether the island can sustain human habitation or economic life. Perhaps some guidance may be found in the travaux préparatoires of the LOS Convention. Colombia (which during the LOS Convention negotiations supported the text of Article 121, though it did not become a party to the Convention), characterized the language on human habitation or economic life as expressing a “ ‘package’ which results from the view that these maritime spaces have been granted to benefit the inhabitants [of the land], with an economic concept. Any other interpretation would distort the concept.” 209 By contrast, Venezuela was critical of and opposed to a restrictive interpretation, taking the position that : “The term ‘rocks’ was in neither the legal nor the scientific vocabulary and might refer to any island formation. Moreover, the two criteria which would determine the exceptional treatment were ambiguous and very relative. . . . If the provision was to be maintained in the final text, his delegation would interpret it as meaning that the capacity of an island to sustain human habitation referred not only to the abstract possibility of habitation, but also to the practical situation, since the continental or insular territory of a State could be developed to suit the interests of the State concerned. Similarly, Venezuela considered that the expression ‘economic life of their own’ should be interpreted as covering not complete self-sufficiency, but the existence of national 209   Colombia on 8 December 1982, document A/CONF.62/ SR.189, in Official Records of the Third United Nations Conference on the Law of the Sea, Vol. XVII (Plenary Meetings, Summary Records and Verbatim Records, as well as Documents of the Conference, Resumed Eleventh Session and Final Part Eleventh Session and Conclusion) (2009), p. 83, para. 251.

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resources which could be exploited economically or the possibility of other uses.” 210 Given the ambiguity of the text and of the negotiating history, some attention has been paid to whether subsequent State practice demonstrates an agreement among all LOS Convention States Parties as to how paragraph 3 should be interpreted 211. As noted in Chapter I, the United Kingdom had claimed a 200-nautical-mile exclusive fishing zone generated by Rockall Island, but dropped that claim prior to ratification of the LOS Convention. The United Kingdom viewed the Island of Rockall, which measures less than 800 square metres and is barren with precipitous sides, as being a rock that cannot sustain human habitation or economic life of its own, and which therefore was not entitled to an exclusive economic zone 212. Likewise, Mexico has accepted that a group of small volcanic islets named Rocas Alijos are “paragraph 3 rocks” for purposes of the LOS Convention 213. In their pleadings before the International Court in Territorial and Maritime Dispute, Nicaragua and Honduras both maintained that the small islands of Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay, 210   Venezuela on 25 August 1980, A/CONF.62/SR.135, p. 21, para. 18. 211   See The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 231-232, paras. 552-553. 212   The Fishery Limits Order of 22 July 1997, Statutory Instruments 1997 No. 1750 (UK), available at : http ://www. legislation.gov.uk/uksi/1997/1750/contents/made  ; see David H. Anderson, “British Accession to the UN Convention on the Law of the Sea”, International and Comparative Law Quarterly, Vol. 46 (1997), p. 761 at p. 778. 213   Alex G. Oude Elferink, “Clarifying Article 121 (3) of the Law of the Sea Convention : The Limits Set by the Nature of International Legal Processes”, IBRU Boundary and Security Bulletin (Summer 1998), p. 58 at p. 59 ; Symmons, The Maritime Zones of Islands in International Law, op. cit., p. 126.

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though occasionally inhabited by fishers, were incapable of generating “any maritime areas beyond the territorial sea” 214. Yet the practice of LOS Convention States Parties does not demonstrate an agreement as to the intrepretation of paragraph 3. Indeed, the positions of States Parties appear driven by their own national interests in securing expanded or limited maritime zones with respect to any given feature. For example, a dispute exists as to whether Isla de Aves (or Aves Island), located in the Caribbean about 300 nautical miles north of Venezuela, is a paragraph 3 “rock”. The island is claimed by Venezuela based on an 1865 arbitration award with the Netherlands 215 and on a series of agreements with other States that had objected to Venezuela’s claim 216. The island is about 375 metres in length and 50 metres wide, with a maximum height of about 4 metres. Consisting mostly of sand and with some vegetation, the island has no human inhabitants, but is a resting and breeding place for seabirds (hence the name of the island) 217. In 1978, Venezuela established a permanent scientific station at 214   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 702, para. 137. 215   See Arbitral Award Relating to the Issue of Control and Sovereignty over Aves Island (Venezuela/Netherlands), Decision of 30 June 1865, Reports of International Arbitral Awards, Vol. XXVIII, p. 115. 216   See Venezuelan agreements with the United States in 1978, Maritime Boundary Treaty between the United States of America and the Republic of Venezuela, done at Caracas on 28 March 1978, United Nations, Treaty Series, Vol. 1273, p. 25, and with France in 1980, Delimitation Treaty between the Government of the French Republic and the Government of the Republic of Venezuela, done at Caracas on 17 July 1980, United Nations, Treaty Series, Vol. 1319, p. 215. Dominica also appears to have given up its claim. 217   David A. Colson and Robert W. Smith (eds.), International Maritime Boundaries, Vol. V, Martinus Nijhoff, 2005, p. 3411.

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the island, staffed by scientists, and protected by naval personnel 218. Seeking to secure expanded maritime zones, Venezuela claims that Isla de Aves does not fall within the scope of Article 121, paragraph 3, a position that some States have accepted 219 while others have not. Similar conflicting views of States exist in the Pacific Ocean. For example, a dispute exists with respect to whether the tiny Japanese islands of Okinotorishima are “paragraph 3 rocks” 220. Japan maintains that they are not and has declared an exclusive economic zone and continental shelf around them 221. China and the Republic of Korea maintain that they are “paragraph 3 rocks”, generating no such zones 222. As will be discussed in Chapter IX, the conflicting views resulted in the Commission on the Limits of the Continental Shelf deciding in 2012 not to make a recommendation regarding the limits of the possible continental shelf in this area   Op. cit. supra, footnote 217, p. 83, para. 251.   For example, the United States-Venezuela maritime boundary, which is based on equidistance, gives full effect to Aves Island. See United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “Maritime Boundary : United States-Venezuela”, Limits in the Seas, No. 91 (16 December 1980). 220   See Yann-huei Song, “Okinotorishima : A ‘Rock’ or an ‘Island’ ? Recent Maritime Boundary Controversy between Japan and Taiwan/China”, in Hong and Van Dyke (eds.), op. cit., pp. 151-154. 221   Ibid., p. 146 ; Letter of the Permanent Mission to the United Nations of the People’s Republic of China to the UN Secretary-General, note verbale CML/2/2009 (6 February 2009) (“It is to be noted that the so-called Oki-no-Tori Shima Island is in fact a rock as referred to in Article 121 (3) of the Convention”) ; Letter of the Permanent Mission to the United Nations of the Republic of Korea to the UN Secretary-General, note verbale MUN/046/09 (27 February 2009) (“the Republic of Korea has consistently held the view that Oki-no-Tori Shima, considered as a rock under Art. 121, paragraph 3 of the Convention, is not entitled to any continental shelf . . .”). 222   Song, op. cit., p. 146. 218 219

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until the dispute was resolved 223. One can discern a lack of consistency in the views of States depending on whether they claim sovereignty over the feature ; thus, China appears to view Okinotorishima as a “paragraph 3 rock” 224, but not islands of a comparable size and nature under China’s control in the South China Sea. Surveying the globe on this point, Stefan Talmon observes : “States have made relatively small, uninhabited barren islands in remote locations the subject of claims to an EEZ and an (outer) continental shelf. For example, France has established EEZs around islands in French Polynesia, French Southern Ocean islands (Kerguelen Islands, Crozet Islands), Clipperton Island, and Amsterdam Island ; Australia claims an EEZ and outer continental shelf around Heard Island and McDonald islands ; Fiji has established an EEZ around Ceva-i-Ra  ; Kiribati has claimed an EEZ measured in part from McKean Island ; Mexico has established an EEZ around Clarion and Roca Portida islets in the Pacific ; Venezuela has established an EEZ around Aves Island ; Norway claims an EEZ and outer continental shelf from Bouvet Island ; Portugal claims an EEZ from Ilhas Selvagens ; the United States has established an EEZ around Maro Reef in the Northwest Hawaiian Islands, Palmyra Atoll, Kingman Reef, Howland and Baker Islands.” 225   See Chapter IX, Sec. G.   See Ji Guoxing, “The Diaoyudao (Senkaku) Disputes and Prospects for Settlement”, Korean Journal of Defense Analysis, Vol. 6 (1994), p. 285 (prominent scholar from the People’s Republic of China) ; see also The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 197-199, paras. 451-458. 225   Stefan Talmon, “The South China Sea Arbitration and the Finality of ‘Final’ Awards”, Journal of International Dispute Settlement, Vol. 8 (2017), p. 388. 223 224

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In recent years, some guidance as to the meaning of Article 121, paragraph 3, has been provided through international jurisprudence. As noted in Chapter I, in the Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court found that the extremely small feature called “QS 32” located on the Quitasueño bank is “a rock incapable of sustaining human habitation or economic life of its own” and thus “is not entitled to a continental shelf or exclusive economic zone” 226. That feature was so small, however, that the Court did not engage in an analysis of distinction between the types of islands identified in Article 121. In its 2009 judgment in Maritime Delimitation in the Black Sea 227, the Court considered the significance of a larger feature – Ukraine’s Serpents’ Island – but for the purposes of maritime boundary delimitation between two adjacent States, not for the purpose determining the island’s status under Article 121. Located offshore of the land boundary between the two States, the island has a lighthouse, but measures only about 0.17 square kilometres and possesses no freshwater resources. Romania argued to the Court that Serpents’ Island should be ignored when determining the maritime boundary between Romania and Ukraine, because it was an Article 121, paragraph 3, “rock” 228. Ukraine contested whether Article 121 was relevant in such a delimitation case, but also argued that the island was not a “paragraph 3 rock” because it “can readily sustain human 226   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 713, para. 238. 227   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, p. 61 ; see Nilufer Oral, “Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009”, International Journal of Marine and Coastal Law, Vol. 25 (2010), p. 15 at p. 139. 228   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, pp. 103-104, para. 124.

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habitation” and “an economic life of its own” 229. The Court did not directly engage on the issue of the applicability of Article 121, but did draw the maritime boundary line in such a way as to allow around the island a 12-nauticalmile territorial sea, and otherwise considered the island irrelevant to the delimitation process. The most extensive discussion of the meaning of Article 121, paragraph 3, undertaken in the context of a series of maritime features, appears in the 2016 Philippines v. China arbitral award. The tribunal considered the status of ten features in the South China Sea raised by the Philippines and found that six – Cuarteron Reef 230, Fiery Cross Reef 231, Gaven Reef (North) 232, Johnson Reef 233, McKennan Reef 234, and Scarborough Shoal 235 – are islands within the meaning of LOS Convention Article 121 236. Further, the tribunal noted the existence of a number of other features in the Spratly Islands that are unequivocally above water at high tide, the classification of which could have affected the tribunal’s ability (as a matter of jurisdiction) to render its award, notably : Itu Aba Island 237, North-East Cay 238, South-West Cay 239, Spratly Island 240, Thitu Island 241, and West York Island 242.   Op. cit. supra, footnote 228, p. 121, para. 184.   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 144-145, paras. 335-339. 231   Ibid., pp. 145-146, paras. 340-343. 232   Ibid., p. 164, para. 365. 233   Ibid., pp. 146-148, paras. 344-351. 234   Ibid., pp. 148, 155, paras. 352-354. 235   Ibid., pp. 133-134, paras. 333-334. 236   Ibid., p. 473, para. 1203 (B) (3) (b). 237   Ibid., p. 179, para. 401. 238   Ibid., pp. 180-181, para. 405. 239   Ibid., p. 181, para. 406. 240   Ibid., p. 180, para. 404. 241   Ibid., para. 402. 242   Ibid., para. 403. 229 230

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Consequently, the tribunal considered whether these islands were fully-entitled islands or were “paragraph 3 rocks”. In doing so, the tribunal considered the text, context, object and purpose, and negotiating history of the LOS Convention and then reached several important and detailed conclusions for the case. First, in the tribunal’s view, the word “rock” does not limit paragraph 3 to features composed of solid rock 243, nor does the word convey any dispositive meaning with respect to size 244. Second, “the status of a feature is to be determined on the basis of its natural capacity, without external additions or modifications intended to increase its capacity to sustain human habitation or an economic life of its own” 245. Third, the critical factor with respect to the term “human habitation” is “the non-transient character of the inhabitation, such that the inhabitants can fairly be said to constitute the natural population of the feature, for whose benefit the resources of the exclusive economic zone were seen to merit protection” 246. In other words, the term “should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain” 247. Such a community might consist of just a few individuals and of periodic residence by nomadic people 248. 243   Op. cit. supra, footnote 230, pp. 205-207, 227, paras. 479484, 540. 244   Ibid., p. 226, para. 538 (“the travaux make clear that – although size may correlate to the availability of water, food, living space, and resources for an economic life – size cannot be dispositive of a feature’s status as a fully entitled island or rock and is not, on its own, a relevant factor”). 245   Ibid., para. 541. 246   Ibid., para. 542. 247   Ibid. 248   Ibid., pp. 227-228, para. 542.

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Fourth, the clause “human habitation or economic life” is disjunctive ; if an island can sustain either human habitation or economic life of its own, then it is entitled to expanded maritime zones 249. The term “economic” generally relates to the development and regulation of the material resources of a community, while the term “life” suggests some level of local human activity to exploit, develop, and distribute those resources ; hence, a “one-off transaction or short-lived venture would not constitute a sustained economic life” 250. Further, such economic life “will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features” ; it “must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea” 251. Thus, “[e]conomic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall inherently short with respect to this necessary link to the feature itself” 252. Indeed, a “feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121 (3)” 253. In particular, “a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation” 254.   Op. cit. supra, footnote 230, p. 210, para. 496.   Ibid., p. 211, para. 499. 251   Ibid., p. 228, para. 543. 252   Ibid. 253   Ibid., p. 229, para. 547. 254   Ibid., p. 231, para. 550. 249 250

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Fifth, while the text of paragraph 3 is disjunctive (human habitation or an economic life of its own), the two elements “will in most instances go hand in hand” and as a practical matter “a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community” 255. At the same time, a “population that is able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the feature on the grounds that its habitation is not sustained by a single feature individually”, just as “a population whose livelihood and economic life extends across a constellation of maritime features is not disabled from recognising that such features possess an economic life of their own merely because not all of the features are directly inhabited” 256. Sixth, paragraph 3 “is concerned with the capacity of a maritime feature to sustain human habitation or an economic life of its own, not with whether the feature is presently, or has been, inhabited or home to economic life” 257. Since the capacity of a feature is “an objective criterion” with “no relation to the question of sovereignty”, the “determination of the objective capacity of a feature is not dependent on any prior decision on sovereignty” 258. Seventh, “the capacity of a feature to sustain human habitation or an economic life of its own must be assessed on a case-by-case basis” ; no “abstract test of the objective requirements to sustain human habitation or economic life can or should be formulated” 259. When assessing the   Op. cit. supra, footnote 230, p. 228, paras. 543-544.   Ibid., p. 228, para. 544. 257   Ibid., para. 545. 258   Ibid., pp. 228-229, para. 545. 259   Ibid., p. 229, para. 546. 255 256

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capacity of any particular feature, the principal factors to be considered include : (1) “the presence of water, food, and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time” ; (2) “the prevailing climate” ; (3) “the proximity of the feature to other inhabited areas and populations” ; and (4) “the potential for livelihoods on and around the feature” 260. For example, if “a feature is entirely barren of vegetation and lacks drinkable water and the foodstuffs necessary even for basic survival, it will be apparent that it also lacks the capacity to sustain human habitation”, just as the “physical characteristics of a large feature” may “make it definitively habitable” 261. Eighth, “the capacity of a feature should be assessed with due regard to the potential for a group of small island features to collectively sustain human habitation and economic life”, given that “remote island populations often make use of a number of islands, sometimes spread over significant distances, for sustenance and livelihoods” 262. Consequently, “provided that such islands collectively form part of a network that sustains human habitation in keeping with the traditional lifestyle of the peoples in question, the Tribunal would not equate the role of multiple islands in this manner with external supply” 263. Ninth, the physical conditions on a particular island may only go so far in identifying whether it is a “paragraph 3 rock” ; indeed, “evidence of physical conditions is insufficient for features that fall close to the line” 264. In the absence of other indications, “the most reliable   Op. cit. supra, footnote 230, p. 229, para. 546.   Ibid., p. 230, para. 548. 262   Ibid., p. 229, para. 547. 263   Ibid., p. 230, para. 547. 264   Ibid., para. 548. 260 261

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evidence of the capacity of a feature will usually be the historical use to which it has been put”. If “nothing resembling a stable community has ever developed there, the most reasonable conclusion would be that the natural conditions are simply too difficult for such a community to form and that the feature is not capable of sustaining such habitation” 265. In light of these findings, the Philippines v. China tribunal proceeded to analyse each of the features in the South China Sea that were at issue, taking into account the existence of fresh water, vegetation and biology, living space, soil and agricultural potential, and dependence on outside supplies for sustenance. With respect to economic activity, the tribunal looked for activity oriented around the feature itself, such as fishers living on the island, rather than just extraction from the island or surrounding seas by external actors, for example through mining for guano or collecting shells. Ultimately the tribunal concluded that Cuarteron Reef 266, Fiery Cross Reef 267, Gaven Reef (North) 268, Johnson Reef 269, McKennan Reef 270, and Scarborough Shoal 271 were all “rocks that cannot sustain human habitation or economic life of their own”, generating no entitlements to an exclusive economic zone or continental shelf 272. Likewise, the tribunal decided that all of the islands within the Spratly Island group (including Itu Aba Island, North-East Cay, South-West Cay, Spratly Island, Thitu Island, and West York Island) were such rocks, and therefore were not   Op. cit. supra, footnote 230, para. 549.   Ibid., pp. 233-234, 259, paras. 560-562, 644.   Ibid., pp. 234, 259, paras. 563-565, 644. 268   Ibid., pp. 234-235, 259, paras. 566-568, 645. 269   Ibid., pp. 233, 259, paras. 557-559, 644. 270   Ibid., pp. 235, 259, paras. 569-570, 645. 271   Ibid., pp. 232, 259, paras. 554-556, 643. 272   Ibid., p. 474, para. 1203 (B) (6). 265 266 267

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capable of generating entitlements that might affect the ability of the tribunal to render its award 273. An overriding theme of the tribunal’s analysis is that “the purpose of Article 121 (3) is to place limits on excessive and unfair claims by States, [and] that purpose would be undermined if a population were installed on a feature that, as such, would not be capable of sustaining human habitation, precisely to stake a claim to the territory and the maritime zones generated by it” 274. Consequently, the various factors indicated by the tribunal seek to pierce through artificial efforts by States to build up a feature as capable of sustaining human habitation or economic life, solely for the purpose of claiming extended maritime zones. While this overall emphasis appears sound, other aspects of the tribunal’s analysis might be questioned. The tribunal’s approach in deciding the case almost seems to impose a burden of proving that an island does not fall within Article 121, paragraph 3, rather than the other way around. Such a burden seems inconsistent with the structure of Article 121, which presents paragraph 3 as an exception to a general rule that all islands are entitled to full maritime zones. Further, in asserting that the term “rock” conveys no geological or geomorphical meaning, and further that it conveys no meaning as to size, the tribunal seems to ascribe no significance whatsoever to the use of the word “rock” rather than “island” in paragraph 3. Given that the tribunal saw considerable significance in the precise wording of 273   Op. cit. supra, footnote 230, pp. 237-254, 259-260, 474, paras. 577-626, 646, 1203 (B) (7). Pursuant to Article 296 of the LOS Convention, the tribunal’s findings, as reflected in the 2016 award’s dispositif, are final and binding upon (and only upon) China and the Philippines. 274   Ibid., p. 231, para. 550.

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Article 121 in various other respects, the lack of attention to why the word “rock” was used in paragraph 3 is striking. The tribunal’s view that an island objectively falls either within or outside the scope of Article 121, paragraph 3, seems to leave little room for an island, over time, acquiring or losing the attributes that place it in one category or another. This may be contrasted with a view that the determination depends on the socioeconomic circumstances at the moment of the claim, because “economic life” and “human habitation” are directly linked to human activities and developments. These may vary over time through changes in the value of resources and human capacity to inhabit or economically develop an area, such as by constructing housing and other facilities 275. D. Conclusion This chapter focused on the definition of an “island” as a matter of international law. Islands are to be distinguished from maritime features that are always submerged, such as submarine ridges, banks, or bars, and from maritime features that rise above the water-line at low tide but are submerged at high tide, known as “lowtide elevations”. Islands are not artificial in nature ; they can neither be man-made platforms, such as an oil rig, nor be a submerged feature or low-tide elevation that has been artificially elevated through human intervention. Rather, islands are defined in Article 121 of the LOS Convention as “a naturally formed area of land, surrounded by water, which is above water at high tide”. Once it is established that a feature is an island, Article 121 draws an important distinction. Islands which can “sustain human habitation or economic life of their own” are entitled to a full range of maritime 275   Charney, “Rocks that Cannot Sustain Human Habitation”, op. cit., p. 867.

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zones. By contrast, islands that are “[r]ocks which cannot sustain human habitation or economic life of their own” are not entitled to an exclusive economic zone or continental shelf, thus denying sovereign rights for the State possessing the island to those potentially resourcerich zones. Determining what is meant by “rocks which cannot sustain human habitation or economic life of their own” is a central issue in some island disputes. The 2016 South China Sea Arbitration (Philippines v. China) offered the first significant guidance in this regard by an international court or tribunal, with an overriding theme that Article 121, paragraph 3, seeks to identify features where extended maritime zones are not needed to help support human habitation or economic life on the island itself. Before exercising sovereignty, sovereign rights, or jurisdiction in the waters surrounding the island, however, a State’s sovereignty over the island must first be established, for otherwise the State cannot claim either sovereignty over its territorial sea or sovereign rights with respect to its exclusive economic zone or continental shelf. The next chapter considers myriad ways that a State’s “title” to an island might be claimed and proven.

CHAPTER IV

METHODS FOR ACQUIRING SOVEREIGNTY OVER AN ISLAND Issues of sovereignty over land are not resolved by the law of the sea ; one must look to other sources of international law. Yet while the rules on sovereignty over land are different from the rules for maritime entitlements, there is a close connection between sovereignty and maritime entitlements. As the Court of Arbitration in the case concerning the Beagle Channel noted, “[t]itle to territory automatically involves jurisdiction over the appurtenant waters and continental shelf and adjacent submarine areas, – to such extent, in such manner, and within such distances from the shore, as may be recognized by the applicable rules of international law” 276. Thus, for a State to make claims with respect to maritime zones that are predicated on the existence of an island, that State must have sovereignty over that island. 276   Dispute concerning the Beagle Channel (Argentina/ Chile), Report and Decision of 18 February 1977, Reports of International Arbitral Awards, Vol. XXI, p. 80 ; see also ibid., p. 145 (“the Court considers it as amounting to an overriding general principle of law that, in the absence of express provision to the contrary, an attribution of territory must ipso facto carry with it the waters appurtenant to the territory attributed”) ; Kentaro Serita, “Some Legal Aspects of Territorial Disputes over Islands”, in Hong and Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, op. cit., p. 137.

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A.  General Points A State can exercise sovereignty over an island regardless of its size. In its 2012 judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia), the International Court of Justice asserted that it “is well established in international law that islands, however small, are capable of appropriation” 277. By contrast, the Court noted, “low‑tide elevations cannot be appropriated, although ‘a coastal State has sovereignty over low‑tide elevations which are situated within its territorial sea, since it has sovereignty over the territorial sea itself’ ” 278. It is commonly accepted when considering sovereign title 279 that “a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled” 280. Thus, when assessing whether a State at a particular point in time secured sovereign title over an island, it is the law in force at the time title was purportedly secured that is relevant, not the law in force at some later point, such as when an international court 277   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 641, para. 26 ; see also Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 102, para. 206. 278   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 641, para. 26 (quoting Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 101, para. 204). 279   The word “title” is used here not to refer to a particular document establishing title but, rather, to “any evidence which may establish the existence of a right, and the actual source of that right”. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment of 22 December 1986, ICJ Reports 1986, p. 564, para. 18. 280   Ibid., p. 845.

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or tribunal is deciding the dispute. This “intertemporal law” approach 281 seeks to promote stability in territorial relations, as it would be highly destabilizing to call into question by today’s standards the means by which States in centuries past acquired territory. In any event, it is a cautionary signal not to assume that contemporary international law on acquisition of territory is directly relevant when deciding an issue of sovereignty over an island. Having said that, while the law in force at an earlier time can create title to an island, the ability to maintain that title over time may depend on the conditions set by international law in force at a later time 282. By way of example, international law in the seventeenth century may have allowed for sovereignty over territory based solely on discovery of terra nullius (nobody’s land), such that a State might become sovereign over an island in the seventeenth century on that basis, even without further acts in relation to the island. Yet, if international law by the eighteenth or nineteenth century had evolved so as to require that sovereignty after discovery must be perfected through further acts of possession, and within a reasonable period of time, then a State’s title originally based solely on discovery of terra nullius might be 281   See generally Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951-54 : General Principles and Sources of Law”, British Yearbook of International Law, Vol. 30 (1953), pp. 5-8 ; T. O. Elias, “The Doctrine of Intertemporal Law”, American Journal of International Law, Vol. 74 (1980), p. 285. 282   Island of Palmas case (Netherlands, USA), Award of 4 April 1928, Reports of International Arbitral Awards, Vol. II, p. 845 (“The same principle which subjets [sic] the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestation, shall follow the conditions required by the evolution of law”). But see Robert Jennings, The Acquisition of Territory in International Law, Manchester University Press, 1963, p. 28.

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lost 283. Further, while title might have been established at a particular point in time, such as through discovery and a period of occupation, that title might be lost at a later time if the island is abandoned and occupied by some other State. There is little doubt that the period of colonialism had tremendous ramifications for the establishment of sovereignty over islands. For several hundred years, European and other powers traversed the globe with extensive navies and trading fleets, setting up colonies in distant lands. In the course of doing so, they often laid claim to and sometimes occupied islands, seized them through military conquest, and transferred them through treaties. Ultimately, they relinquished many of these islands so that they might form independent States, though in some instances those new States inherited island disputes. Yet, even today, former colonial powers and other powers continue to exercise sovereignty over islands across the globe, based on a variety of governing relationships of one kind or another, such as “overseas”, “selfgoverning”, “incorporated” or “unincorporated” territories, or territories in “free association”. The following are good (but non-exhaustive) examples of States that continue to have a territorial relationship with numerous islands, as a vestige of colonial times : Australia : Ashmore and Cartier Islands ; Christmas Island ; Cocos (Keeling) Island ; Coral Island ; Heard and McDonald Islands ; Norfolk Island France  : Clipperton Island  ; French Polynesia  ; Guadeloupe ; Mayotte ; Martinique ; New Caledonia ; Réunion ; Saint Barthélémy ; Saint-Martin ; Saint Pierre and Miquelon ; Scattered Islands ; Wallis and Futuna Netherlands : Aruba ; Bonaire ; Curaçao ; Saba ; Sint Eustatius ; Sint Maarten 283   See Island of Palmas case (Netherlands, USA), 1928, pp. 845-846.

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New Zealand : Cook Islands ; Niue ; Tokelau United Kingdom : Anguilla ; Bermuda ; British Indian Ocean Territory (Chagos Islands) ; British Virgin Islands ; Cayman Islands  ; Falklands Islands/Islas Malvinas  ; Montserrat  ; Pitcairn, Henderson, Ducie and Oeno Islands ; Saint Helena, Ascension and Tristan da Cunha ; South Georgia and the South Sandwich Islands ; Turks and Caicos Islands 284 United States : Baker Island ; Guam ; Howland Island ; Jarvis Island, Johnston Atoll ; Kingman Reef ; Midway Atoll  ; Navassa Island  ; Northern Mariana Islands  ; Palmyra Atoll ; Puerto Rico ; US Virgin Islands ; Wake Island Though sovereignty over many of these islands is undisputed, in some instances disputes exist between two or more States. When this happens, each State seeks to prove its sovereign title to the island 285. There are various ways that a State might be said to have acquired sovereignty over an island, notably : (1) title by discovery of territory that is terra nullius ; (2) title by agreement with another State that had sovereignty or a claim to sovereignty ; (3) title by State succession ; (4) title by military conquest ; and (5) title by continuous and peaceful display of sovereignty 286. Where title over 284   The Channel Islands and the Isle of Man were never colonies and are not formally a part of the United Kingdom (they are self-governing dependencies of the Crown). 285   See, e.g., The Minquiers and Ecrehos Case (France/ United Kingdom), Judgment of 17 November 1953, ICJ Reports 1953, p. 52 (“the Court is of the opinion that each Party has to prove its alleged title and the facts upon which it relies”). 286   See generally Jennings, op. cit. ; Joshua Castellino and Steve Allen, Title to Territory in International Law : A Temporal Analysis, Ashgate, 2003 ; Malcolm N. Shaw, The International Law of Territory, Oxford University Press, 2012  ; Brian McGarry, “The Development of Custom in Territorial Dispute Settlement”, Journal of International Dispute Settlement, Vol. 8 (2017), p. 339.

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an island exists based on one of these methods and is unchallenged by other States, then it will be regarded as valid regardless of the degree of governmental authority actually exercised over the island 287. These methods for acquiring title will each be discussed in turn, but it should be noted that when sovereignty disputes arise among States with respect to an island, arguments advanced by the disputing States often involve an amalgam of these methods of securing title. Further, doctrines of acquiescence, estoppel 288, abandonment 289, or tacit agreement may become relevant when considering competing State claims concerning an island, as well as a State’s renunciation of title over an island 290. Thus, in Sovereignty over Pulau Ligitan and 287   See, e.g., Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, Judgment of 23 May 2008, p. 12 at p. 37, para. 68 (with respect to the survival of the historical title of the Sultanate of Johor into the contemporary era despite a lack of acts of governmental authority over the islands at issue). 288   See generally D. W. Bowett, “Estoppel before International Tribunals and Its Relation to Acquiescence”, British Yearbook of International Law, Vol. 33 (1957), p. 176. 289   See Geoffrey Marston, “Abandonment of Territorial Claims : The Cases of Bouvet and Spratly Islands”, British Yearbook of International Law, Vol. 57 (1987), p. 337 ; Elihu Lauterpacht, “Whatever Happened to the Beagle Channel Award ?”, in Jean Boulouis and René-Jean Dupuy (eds.), Le droit international au service de la paix, de la justice et du développement : mélanges Michel Virally, Editions A. Pedone, 1991, p. 359. For various examples of actual or purported abandonment of claims to islands, see Marcelo G. Kohen, “Territory, Abandonment”, in Max Planck Encyclopedia of Public International Law, Vol. IX, op. cit., p. 884. 290   For example, in Articles 2 and 3 of the 1951 San Francisco Peace Treaty, Japan renounced all right, title and claim over various islands, such as Quelpart, Port Hamilton, Dagelet, Formosa (now Taiwan), the Pescadores, and the Kurile Islands. Yet the treaty did not identify a successor State. For analysis, see Raul Pedrozo, “International Law and Japan’s Territorial Disputes”, International Law Studies, Vol. 92 (2016),

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Pulau Sipadan (Indonesia/Malaysia), the Court found that a lack of disagreement or protest from Indonesia (or its predecessor) with respect to Malaysia’s activities in relation to the disputed islands was a relevant factor 291. Likewise, in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, the Court viewed as pertinent Nicaragua’s failure to protest Honduran conduct regarding the disputed islands 292. Nicaragua’s failure to react to an arbitral award in favour of Colombian sovereignty over islands, while not dispositive as to Colombia’s sovereignty, was deemed to lend “some support” to Colombia’s position 293. Yet such doctrines are not necessarily easy to invoke and much will depend on the context. For example, estoppel includes an element on the part of the party seeking its application ; “a party relying on an estoppel must show, among other things, that it has taken distinct acts [with respect to the island] in reliance on the other party’s statement”, based on clear and unequivocal evidence 294. B.  Title by Discovery and Occupation of Terra Nullius For many centuries, title over an island was asserted by States based on discovering an island that was terra p. 119. On renunciation generally, see Lighthouses Arbitration between France and Greece, 24 July 1956, International Law Reports, Vol. 23, p. 659 at pp. 663-666. 291   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Judgment of 17 December 2002, ICJ Reports 2002, p. 685, para. 148. 292   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 721, para. 208. 293   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 659, para. 90. 294   See Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, ICJ Reports 2008, p. 81, para. 228 (inability of Singapore to establish reliance on a Malaysia declaration).

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nullius 295. Title acquired in this manner may be referred to as “original” title, because (unlike the other forms of title discussed below), it is not based on a “derivative” title secured from another sovereign, such as through cession, prescription, or conquest. In the context of an island dispute, the basic doctrine was stated by Britain before an arbitrator in 1870 as follows : “That all mankind have an equal right to things that have not yet fallen into the hands of anyone, and those things belong to the person who first takes possession of them. When therefore a nation finds a country uninhabited, and without an owner, it may lawfully take possession of it, and after it has sufficiently made known its will in this respect, it can not be deprived of it by another nation. Thus, navigators going on voyages of discovery, and meeting with islands or other lands in a desert state, have taken possession of them in the name of their nations, and this title has been usually respected, provided it was soon followed by a real possession.” 296 This method of securing title is closely associated with the period of colonialism, when imperialist powers often 295   See William Edward Hall, International Law, Oxford, Clarendon Press, 1880, pp. 87-89 ; F. A. Freiherr von der Heydte, “Discovery, Symbolic Annexation and Virtual Effectiveness in International Law”, American Journal of International Law, Vol. 29 (1935), p. 448 ; Isabella Castangia, Sovranità, contiguità territoriale e isole in una controversia internazionale del XVIII secolo, E. Jovene, 1988. Islands subject to claims of ancient title do not “present the characteristics of a dispute concerning the acquisition of sovereignty over terra nullius”. The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, p. 53. 296   Arbitral award between Portugal and the United Kingdom, regarding the dispute about the sovereignty over the Island of Bulama, and over a part of the mainland opposite to it, Decision of 21 April 1870, Reports of International Arbitral Awards, Vol. XXVIII, p. 136 (emphasis in original).

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laid claim to territory that in fact was occupied by native peoples 297. That thinking echoed in the International Court’s 1975 Advisory Opinion, which declined to view tribes inhabiting Western Sahara during the period of Spanish colonization in the 1800s as being capable themselves of possessing sovereignty over the territory in question, although the Court was also unwilling to view the territory as terra nullius 298. Similarly, in the 1999 Kasikili/Sedudu Island dispute between Botswana and Namibia, the Court declined to view as salient the longstanding settlement of the island by the Masubia tribe, viewing instead as pertinent the relevant colonial-era treaty 299. Yet the Court has acknowledged the possibility of original title existing with a native population, notably with respect to the sultanate of Johor in relation to the island of Pedra Branca/Pulau Batu Puteh 300. 297   See J. A. Andrews, “The Concept of Statehood and the Acquisition of Territory in the Nineteenth Century”, Law Quarterly Review, Vol. 94 (1978), p. 408 ; Antony Anghie, Imperialism, Sovereignty and the Making of International Law, Cambridge University Press, 2005, pp. 52-65. 298   See Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, p. 12 at p. 39, para. 81 ; see also ibid., p. 83 at p. 86 (separate opinion of Vice-President Ammoun). 299   Kasikili/Sedudu Island (Botswana/Namibia), Judgment of 13 December 1999, ICJ Reports 1999, p. 1045 at p. 1072, pp. 1093-1094, paras. 72-73, pp. 1103-1106, paras. 94-98. 300   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, pp. 33-35, paras. 52-59 (concluding that the Sultanate of Johor had title over the island and other disputed features, such as Middle Rocks, which Malaysia inherited ; yet title over Pedra Branca/Pulau Batu Puteh ultimately passed to Singapore). For analysis of this case, see Marcelo Kohen, “Original Title in the Light of the ICJ Judgment on Sovereignty over Pedra Branca”, Journal of the History of International Law, Vol. 15 (2013), p. 151 ; Sookyeon Huh, “Title to Territory in the Post-Colonial Era : Original Title and Terra Nullius in the ICJ Judgments on Cases concerning Ligitan/Sipadan (2002) and Pedra Branca (2008)”, European Journal of International Law, Vol. 26 (2015), p. 709.

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As indicated by the final clause of the British statement quoted at the beginning of this section, by the mid1800s it was commonly accepted that “discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty . . .” 301. At a minimum, steps had to be taken to declare and publicize the claim of sovereignty 302, if not actual steps to periodically visit or occupy the island. Indeed, a claim to sovereignty on this basis is often expressed as title based on “immemorial” possession or occupation dating back to discovery of the island, for example the claim advanced by France to the Minquiers and Ecrehos Islands 303. In the Clipperton Island case, an English vessel in the early 1700s discovered and named the uninhabited (and uninhabitable) island, located 1,280 kilometres southwest 304 of Mexico  . Soon thereafter France rediscovered the island and, during a French naval voyage in 1858, 301   Island of Palmas case (Netherlands, USA), 1928, p. 846 ; see also Arthur S. Keller, Oliver J. Lissitzyn and Frederick J. Mann, Creation of Rights of Sovereignty through Symbolic Acts, 1400-1800, Columbia University Press, 1938, pp. 148-149. 302   See, e.g., Affaire de l’île de Clipperton (Mexique contre France), 28 January 1931, Reports of International Arbitral Awards, Vol. II, p. 1105 (French sovereignty based on minimal acts), available in English in American Journal of International Law, Vol. 26 (1932), p. 390, at. p. 393 (hereinafter Clipperton Island) (“even admitting that the discovery had been made by Spanish subjects, it would be necessary . . . to prove that Spain not only had the right, as a state, to incorporate the island in her possessions, but also had effectively exercised the right”). 303   The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, pp. 50-51. 304   See Jon M. Van Dyke and Robert A. Brooks, “Uninhabited Islands and the Ocean’s Resources : The Clipperton Island Case”, in Thomas A. Clingan Jr. (ed.), Law of the Sea : State Practice in Zones of Special Jurisdiction, Law of the Sea Institute, 1982, p. 351 ; Tobias Pierlings, “Clipperton Island Arbitration”, in Max Planck Encyclopedia of Public International Law, Vol. II, op. cit., p. 247.

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claimed sovereignty over the island, which it named “Île de la Passion”. In addition to temporarily landing some crew-members on the island, France declared its sovereignty to the Government of Hawaii, published its claim in a Hawaiian journal, and issued a concession for exploitation of guano beds on the island 305. In 1897, Mexico laid claim to the island and in 1909 the two States agreed to refer the matter to arbitration by King Victor Emmanuel III of Italy. The arbitral award concluded that “when in November, 1858, France proclaimed her sovereignty over Clipperton, that island was in the legal situation of territorium nullius, and, therefore, susceptible of occupation” 306. Today, France continues to administer the island through its pays d’outre-mer of French Polynesia 307. During the past century it has been uncommon for any island to be “discovered” ; all land masses appear to have been located and marked on navigational charts, though the possibility remains for some islands to be created suddenly from volcanic activity, as will be discussed in Chapter VIII. As such, most islands have been known for decades and some kind of exercise of State authority over any given island beyond mere discovery normally exists, such that discovery is rarely invoked as the sole basis for sovereignty. Indeed, when a State has sought to rely solely on the terra nullius doctrine, its claim has typically failed due to the presence of persons or authorities from another State in the claimed territory 308. Consequently, 305   Clipperton Island, 1931, American Journal of International Law, op. cit., p. 391. 306   Ibid., p. 393. 307   See, e.g., Décret du 31 janvier 2008 relatif à l’administration de l’île de Clipperton, available at : https ://www. legifrance.gouv.fr. 308   See, e.g., Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 April 1933, PCIJ, Series A/B, No. 53 (rejecting Norway’s claim that parts of uninhabited Eastern Greenland were terra nullius) ; Western Sahara, ICJ Reports

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the issue of discovery is usually advanced as the starting point for an “inchoate” title 309, which is then perfected through additional conduct, such as effective occupation or exercise of administrative authority over the island. Thus, while France and the United Kingdom provided to the International Court of Justice extensive evidence, dating back a millennium, in an effort to establish original title over the Minquiers and Ecrehos groups of islands off the coast of France, the Court ultimately set aside such “indirect presumptions deduced from events in the Middle Ages” in favour of “evidence which relates directly to the possession of the Ecrehos and Minquiers groups” 310. Indeed, one difficulty in establishing who discovered or possessed an island in centuries past is the vagueness and uncertainty of evidentiary sources. While documents or maps may exist indicating a particular island and its location, the name of an island can change as among different explorers, when transposed from one language to another, and may be associated with more than one island 311. Further, evidence relating to an island may indicate its location inaccurately, though such evidence may still be valid if it is merely reflecting the limitations of the nautical instruments of the time. Whether the island was simply seen or was also landed upon is not 1975, pp. 38-39 (casting doubt upon the viability of the concept of terra nullius when persons are present in the territory). 309   But see James Crawford, Brownlie’s Principles of Public International Law, 8th ed., Oxford University Press, 2012, p. 223 (finding that “the notion of inchoate title is misleading. Title is never ‘inchoate’, though it may be weak if it rests on slight evidence of state activity”). 310   The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, p. 57. See generally Alexander George Roche, The Minquiers and Ecrehos Case : An Analysis of the Decision of the International Court of Justice, Droz, 1959. 311   See, e.g., Island of Palmas case (Netherlands, USA), 1928, pp. 860-862.

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always clear from the evidence, as is whether there were native peoples present. C.  Title by International Agreement between States A more likely way today to assert title to an island is by reference to an agreement by which one State cedes sovereignty over an island to another State, or otherwise agrees to or acknowledges that other State’s sovereignty over the island. Such an agreement might speak to a broad range of territory that encompasses islands only in part, such as the Boundary Treaty of 1881 between Argentina and Chile that featured in the Beagle Channel arbitration 312, or the Convention of 1891 between Britain and the Netherlands that featured in Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) 313. Alternatively, the agreement might be directed at a specific island or islands. For example, Egypt in 2016 announced a maritime boundary agreement effectively ceding sovereignty over the Red Sea islands of Tiran and Sanafir to Saudi Arabia, although that agreement has been successfully challenged in Egyptian courts 314. Of course, an important factor is that the agreement must be by an authority that is already exercising 312   Dispute concerning the Beagle Channel (Argentina/ Chile), 1977, pp. 84-88. 313   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, p. 625. 314   See, e.g., Heba Habib, “Egypt hands Saudi Arabia two islands in gratitude. Egyptians are outraged”, Washington Post, 12 April 2016, A9 ; Nour Youssef, “Egyptian Court Nullifies Transfer of 2 Red Sea Islands to Saudi Arabia”, NY Times, 21 June 2016, available at : http ://www.nytimes. com/2016/06/22/world/middleeast/egypt-red-sea-islands.html ; Ruth Michaelson, “Egyptian court rejects plan to transfer Red Sea islands to Saudi Arabia”, The Guardian, 16 January 2017, available at : https ://www.theguardian.com/world/2017/jan/16/ egyptian-court-rejects-transfer-red-sea-islands-saudi-arabiatiran-sanafir.

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sovereignty or has a valid claim to sovereignty over the island ; a State cannot cede sovereignty over an island if it does not in fact possess sovereignty 315. For example, in the Island of Palmas case, the United States claimed that it had sovereignty based on cession of the island by Spain to the United States in 1898 as part of the Philippines archipelago 316. Because the arbitral tribunal found that the island was actually part of the territorial possessions of the Netherlands as of 1898, Spain had no authority to cede the island to the United States, and hence the US claim failed 317. During the period of colonialism, some colonial powers advanced claims of sovereignty based on agreements with the island’s local tribal leaders. While in some instances those claims were accepted 318, in others the view was taken that such agreements were not, strictly speaking, treaties between States but, rather, “a form of internal organization of a colonial territory, on the basis of autonomy for the natives” 319. Further, an agreement from tribes ceding an island that those tribes no longer inhabit has been found invalid, especially in the 315   Referred to as the principle of nemo dat quod non habet (no donor can give a greater interest than he or she already has). 316   Treaty of Peace between United States and Spain, done at Paris on 10 December 1898, Bevans, Vol. 11, p. 615, Art. III (hereinafter Treaty of Paris). 317   Island of Palmas case (Netherlands, USA), 1928, p. 842 (“It is evident that Spain could not transfer more rights than she herself possessed”). 318   See, e.g., George Rodney Burt (United States v. Great Britain) (Fijian Land Claims), Decision of 26 October 1923, Reports of International Arbitral Awards, Vol. VI, p. 93 at p. 99 (finding British claims to sovereignty valid based on an 1874 cession of the Fiji Islands by the high chiefs of the islands) ; see also Isaac M. Brower (United States v. Great Britain) (Fijian Land Claims), Decision of 14 November 1923, Reports of International Arbitral Awards, Vol. VI, p. 109 at p. 110 (recognizing the power of such chiefs to give title to a US national prior to cession to Britain). 319   Island of Palmas case (Netherlands, USA), 1928, p. 858.

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face of other authorities who occupy the island 320. Even so, valid agreements of this kind could create a form of “suzerainty over the native State [that] becomes the basis of territorial sovereignty as towards other members of the community of nations” 321. The transfer of sovereignty over a particular island may be quite clear from the terms of the agreement, as was the case with the 1898 Treaty of Paris, where the Island of Palmas was within the lines traced by the treaty. Similarly, the Treaty of Spitzbergen in 1920 constituted recognition by several States with respect to Norway’s sovereignty over the Svalbard archipelago, including the island of Spitzbergen 322. In Territorial and Maritime Dispute (Nicaragua v. Colombia), Nicaragua claimed sovereignty over the islands of San Andrés, Providencia, and Santa Catalina. In its 2007 judgment on preliminary measures of protection, the International Court held that it had no jurisdiction with regard to Nicaragua’s claim because the question of sovereignty over the three islands already had been determined by a 1928 treaty concluded between the two States (the BarcenasEsguerra Treaty) 323. Yet the agreement in question might be much more general in nature, such that whether a specific island is 320   See Arbitral Award between Portugal and the United Kingdom, regarding the dispute about the sovereignty over the Island of Bulama, and over a part of the mainland opposite to it, 1870, pp. 136, 139. 321   Island of Palmas case (Netherlands, USA), 1928, p. 858. 322   Treaty Relating to Spitzsbergen, done at Paris on 9 February 1920, League of Nations, Treaty Series, Vol. 2, p. 8 ; see Geir Ulfstein, The Svalbard Treaty : From Terra Nullius to Norwegian Sovereignty, Scandinavian University Press, 1995 ; Geir Ulfstein, “Spitsbergen/Svalbard”, in Max Planck Encyclopedia of Public International Law, Vol. IX, op. cit., p. 438. 323   Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment of 13 December 2007, ICJ Reports 2007, p. 832 at p. 861, para. 90.

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included in the agreement is unclear or ambiguous 324. For example, while an article in a treaty might provide that “to Chile shall belong all the islands to the south of the Beagle Channel up to Cape Horn” 325, interpreting that provision requires one to know exactly where the Beagle Channel runs, which may be a contested issue 326. Similarly, a treaty may indicate the location of a boundary line, but leave ambiguous whether that line only operates on land or extends as well out to sea 327. When ambiguity exists, the agreement must be interpreted carefully, based on its terms, its context, the subsequent practice of the parties, and the travaux préparatoires 328. Such agreements need not be formal treaties ; other forms of tacit agreement or acquiescence may suffice. Thus, in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, the International Court found that correspondence between Malaysia and Singapore in the 1950s 329 demonstrated that Malaysia 324   See, e.g., The Minquiers and Ecrehos Case (France/ United Kingdom), ICJ Reports 1953, p. 54 (“Common to all these Treaties is the fact that they did not specify which islands were held by the Kings of England and France respectively. The Court would therefore not be justified in drawing from them any conclusion as to whether the Ecrehos and the Minquiers at the time when these Treaties were signed were held either by the English or by the French King”). 325   Dispute concerning the Beagle Channel (Argentina/ Chile), 1977, p. 106, para. 55. 326   Ibid., pp. 127-128, para. 80. The tribunal ultimately concluded that the islands of Picton, Nueva, and Lennox were located south of the Beagle Channel. Ibid., p. 141, para. 99. 327   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, pp. 646-668, paras. 39-92. 328   See, e.g., Island of Palmas case (Netherlands, USA), 1928, pp. 846-850 (analysing whether the Treaty of Münster between the Netherlands and Spain addressed sovereignty over the Island of Palmas). 329   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, pp. 73-82, paras. 192-230.

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regarded itself as no longer sovereign over a particular island – Pedra Branca/Pulau Batu Puteh – which, in combination with certain acts by Singapore, established Singapore’s sovereignty as of 1980 330. It should be noted that an agreement that a third party shall decide sovereignty is also relevant in determining sovereignty, whether or not that decision is an arbitral award. In Qatar v. Bahrain, the Court in 2001 found with respect to the Hawar Islands that “the pleadings, and in particular the Exchange of Letters referred to above . . . show that Bahrain and Qatar consented to the British Government settling their dispute over the Hawar Islands. The 1939 decision must therefore be regarded as a decision that was binding from the outset on both States and continued to be binding on those same States after 1971, when they ceased to be British protected States . . .” 331 In some instances, even an unratified agreement might be viewed as probative regarding the facts on the ground. In the Qatar v. Bahrain case, the Court stated 330   Op. cit. supra, footnote 329, p. 96, para. 276. In February 2017, Malaysia filed an application with the Court for revision of its 2008 judgment, asserting that new facts had come to light from the colonial period demonstrating that Pedra Branca/ Pulau Batu Puteh was not regarded by UK authorities as a part of Singapore’s sovereign territory. See Application for revision of the Judgment delivered by the International Court of Justice (ICJ) on 23 May 2008 in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), filed by Malaysia on 2 February 2017, available at : http ://www.icj-cij.org. 331   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 83, para. 139 (leading to a conclusion that, since Britain in 1939 attributed sovereignty over the Hawar Islands to Bahrain, Bahrain was sovereign over them, while Qatar was sovereign over Janan Island, which was not deemed part of the Hawar island group).

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“that signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature” 332. In that instance, an AngloOttoman Convention, although never brought into force, nevertheless served as “evidence of the views of Great Britain and the Ottoman Empire as to the factual extent of the authority” being exercised over the Qatar peninsula, including the island of Zubarah 333. Finally, an agreement between two States might have an effect on a claim of sovereignty by a third State which has been notified of the agreement and does not protest it. In Island of Palmas, however, the arbitrator, Max Huber, believed that such an effect was relatively minimal ; only if the third State’s claim to sovereignty was weak might such an agreement result in extinguishing the third State’s claim 334. If an agreement exists but is unclear or ambiguous with respect to the issue of sovereignty, a question arises as to whether resort must be had to rules of customary international law. In Territorial and Maritime Dispute (Nicaragua v. Colombia), the parties contested which State was sovereign over certain cays and other maritime features (including “QS 32”). Although Colombia and Nicaragua’s 1928 Treaty was a starting point for considering which State was sovereign, the Court ultimately concluded that the treaty did not conclusively answer the question with respect to these particular features, 335 thus necessitating reliance on other law  . Judge Abraham took the Court to task in his separate opinion for abandoning the treaty, arguing that “difficulty” in

  Op. cit. supra, footnote 331, p. 68, para. 89.   Ibid., paras. 89-90. 334   Island of Palmas case (Netherlands, USA), 1928, p. 843. 335   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, pp. 646-649, paras. 40-56. 332 333

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interpreting a treaty is not a basis for setting it aside 336, but his concern apparently gained no traction with the Court. D.  Title by State Succession A third way sovereign title to an island might arise is when a predecessor State dissolves or disappears, leaving behind two or more new States, or when a portion of an existing State breaks away, resulting in a new State that claims sovereignty over an island based on the sovereignty of the predecessor State. If the predecessor State held good title to the island on whatever basis (such as discovery or international agreement), then a successor State may be found to have inherited that title by succession. Of course, title by succession requires that there was an uninterrupted transfer of that title ; if evidence is lacking in that regard, succession cannot be said to have occurred 337. A particularly important element in such circumstances has been the process of decolonization that occurred in the nineteenth and twentieth centuries. In situations where a State emerged from a period of colonization, international tribunals have often relied on the principle of uti possidetis juris, which provides that, upon independence, new States inherit the territories and boundaries of former colonial provinces 338. The 336   Op. cit. supra, footnote 335, separate opinion of Judge Abraham, pp. 730-735, paras. 2-20 ; see also Lorenzo Palestini, “The Territorial and Maritime Dispute (Nicaragua v. Columbia) : On Territorial Sovereignty and the International Court of Justice’s ‘Failure to Rule’ on the Geographical Scope of the Archipelago of San Andrés”, Law and Practice of International Courts and Tribunals, Vol. 15 (2016), p. 56. 337   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, pp. 669-678, paras. 94-124. 338   See, e.g., Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, p. 567, para. 26 ; Frontier Dispute (Benin/Niger), Judgment of 12 July 2005, ICJ Reports 2005,

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principle has been applied by the International Court to the determination of sovereignty over islands located in boundary rivers or lakes, though in doing so the Court will take into account contemporary facts about physical 339 changes to such islands  . The principle has also been applied by the Court to offshore possessions and maritime spaces, but doing so presupposes the existence of a delimitation by the colonial authorities of those spaces 340. Though the principle arose in the context of territorial disputes in Latin America 341, it has since been applied elsewhere, including in Africa 342 and Asia 343, and has been applied in non-colonial contexts as well (such as p. 90 at pp. 108-110, paras. 25-27. See generally Suzanne Lalonde, Determining Boundaries in a Conflicted World : The Role of Uti Possidetis, McGill-Queen’s University Press, 2002. 339   See Frontier Dispute (Benin/Niger), ICJ Reports 2005, pp. 108-109, para. 25 : “The Chamber observes that, in any event, the Parties agree that the course of their common boundary should be determined, in accordance with the uti possidetis juris principle, by reference to the physical situation to which French colonial law was applied, as that situation existed at the dates of independence. However, the consequences of such a course on the ground, particularly with regard to the question of to which Party the islands in the River Niger belong, must be assessed in relation to present-day physical realities and, in carrying out the task assigned to it . . ., the Chamber cannot disregard the possible appearance or disappearance of certain islands in the stretch concerned.” 340   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, pp. 701-727, paras. 132-227. 341   See, e.g., Land, Island and Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua intervening), Judgment of 11 September 1992, ICJ Reports 1992, p. 351 at pp. 386-388, paras. 40-44. 342   See, e.g., Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, p. 566, paras. 23-24. 343   See, e.g., Temple of Preah Vihear (Cambodia v. Thailand), Judgment of 15 June 1962, ICJ Reports 1962, p. 6 at pp. 34-35.

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with respect to the break-up of the former Yugoslavia) 344. Other than in the colonial context, the ability of an island to break away from one State, as an exercise of a right of self-determination, so as to join another State or to become an independent State, is quite difficult. The classic example is the Åland Islands dispute, in which the people of Finland’s Åland Islands, a strategicallylocated archipelago in the Baltic Sea, argued in favour of their right of self-determination in an effort to unify with Sweden. That demand that was turned aside in October 1920 by a League of Nations Committee of Jurists, which concluded that the principle of self-determination was not a positive rule of the law of nations ; disposition of territory could only be exercised by a sovereign State 345. In this instance, however, Finland “had not yet acquired the character of a definitively constituted State”, having only recently separated from the Soviet Union 346. Instead, the League of Nations Council was competent to decide the matter, and was advised in April 1921 by a Commission of Rapporteurs that Finland’s sovereignty over the islands was “incontestable”, but that steps might be taken by Finland to protect minority rights for the people of the islands 347. Thereafter, in June 1921, the League Council recommended certain international guarantees for the population with respect to their ability to maintain their 344   See, e.g., Conference on Yugoslavia Arbitration Commission, Opinion No. 2, 11 January 1992, reprinted in International Legal Materials, Vol. 31, p. 1497 (hereinafter Badinter Commission) ; ibid., Opinion No. 3, p. 1499. 345   Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question, League of Nations Official Journal, Special Supplement No. 3 (October 1920), p. 5. 346   Ibid., p. 14. 347   The Aaland Islands Question, Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, 16 April 1921, League of Nations Council Doc. B.7.21/ 68/106 (1921), p. 28.

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own Swedish language, traditions, and culture, which were then memorialized in the Finland-Sweden Åland Agreement 348, and implemented by Finland under its law 349. Similar self-government or “home rule” may be seen with respect to other islands that have a language and culture distinct from the “mother” country, such as the Faroe Islands in their relationship with Denmark 350. E.  Title by Military Conquest At one time, a State could acquire sovereignty over an island through military conquest. Such a method of acquiring sovereignty was regarded as permissible for many centuries and is the original source of title for many islands worldwide. This method of acquiring title, however, is no longer available 351 due to the emergence in international law of a prohibition on the use of force by one State against another, which may be dated back to the 1928 Kellogg-Briand Pact 352 for some States or to the UN Charter 353 for all States. 348   Åland Agreement, 27 June 1921, League of Nations Official Journal, Vol. 2 (1921), p. 701. 349   Sten Harck, “Åland Islands”, in Max Planck Encyclopedia of Public International Law, Vol. I, op. cit., p. 279, paras. 9, 15-18. 350   See Jørgen Albæk Jensen, “Faroe Islands”, in Max Planck Encyclopedia of Public International Law, Vol. III, op. cit., p. 1126 (discussing the 1948 Home Rule Act, the 2005 Transfer of Subject Areas to the Faroese Authorities Act, and the 2005 Conclusion of International Agreements by the Faroese Home Rule Government Act). 351   A possible counter-example, however, is India’s successful seizure and annexation of the Portuguese enclave of Goa, located on the west coast of India, in 1961. For an account, see Quincy Wright, “The Goa Incident”, American Journal of International Law, Vol. 56 (1962), p. 617. 352   General Treaty for Renunciation of War as an Instrument of National Policy, done at Paris on 27 August 1928, League of Nations, Treaty Series, Vol. 94, p. 57. 353   Charter of the United Nations, done at San Francisco on 26 June 1945, United Nations, Treaty Series, Vol. 1, XVI, Art. 2 (4).

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The UN General Assembly’s 1970 Declaration on Principles of International Law concerning Friendly Relations indicates the consequence of the emergence of that norm : “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.” 354 That principle, for example, appears to have been applied by the UN Security Council in the aftermath of Iraq’s August 1990 invasion of Kuwait 355. Although sovereignty cannot today be acquired through military conquest, the acquisition of title by this method prior to the emergence of the prohibition on use of force cannot today be challenged. As noted at the beginning of this chapter, effects of past facts must be appreciated in the light of the international law contemporary with those facts 356. F.  Title by Continuous and Peaceful Display of Sovereignty In the event that title does not exist based on one of the above grounds, a final method for establishing it is through continuous and peaceful display of sovereignty over the island 357, a concept sometimes referred to as 354   UN General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, resolution 2625 (XXV), 24 October 1970, annex. 355   UN Security Council, resolution 662, 9 August 1990. 356   See generally Castellino and Allen, op. cit. 357   Island of Palmas case (Netherlands, USA), 1928, p. 839 (“[T]he continuous and peaceful display of territorial sover-

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“prescription” 358 or “effective occupation”, or perhaps as “historical consolidation of title” 359. Two important concepts often arise in this context. First, an international court or tribunal will inquire into whether a State’s title can be inferred from its effective manifestation of State functions over the island (often referred to as effectivités) 360. In the Legal Status of Eastern Greenland case, the Permanent Court of International Justice referred to two critical elements in this regard : “the intention and will to act as sovereign, and some actual exercise or display of such authority” 361. This approach is followed in more recent cases and adapted as appropriate in the context of islands. For example, in the dispute between Eritrea and Yemen over the Hanish Islands in the Red Sea, the arbitral tribunal maintained that such “criteria are tempered to suit the nature of the territory and the size of its population” 362. eignty (peaceful in relation to other States) is as good as a title”). 358   “Prescription” is usually employed in the context of one State displacing the title of another State through possession. 359   See Charles de Visscher, Theory and Reality in Public International Law, Princeton University Press, 1957, p. 200 (“Proven long use, which is its foundation, merely represents a complex of interests and relations which in themselves have the effect of attaching a territory or an expanse of sea to a given State”). But see Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), Judgment of 10 October 2002, ICJ Reports 2002, p. 352 (“the theory of historical consolidation is highly controversial and cannot replace the established modes of acquisition of title under international law”). 360   See, e.g., Frontier Dispute (Benin/Niger), ICJ Reports 2005, p. 120, paras. 47, 63. See generally Charles de Visscher, Les effectivités en droit international public, Editions A. Pedone, 1967. 361   Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ, 1933, pp. 45-46. 362   Territorial Sovereignty and Scope of the Dispute (Eritrea nd Yemen), Decision of 9 October 1998, Reports of Interna-

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Such acts often may be associated with the conduct of colonial powers during the period of colonialism, but they may also be undertaken by a native population during centuries past, such as by the sultanates in North Borneo or in Sulu in relation to the islands of Ligitan and Sipadan 363. The acts at issue, of course, must relate to the islands in question ; a court or tribunal “can only consider those acts as constituting a relevant display of authority which leave no doubt as to their specific reference to the islands in dispute as such” 364. Thus, in the Eritrea-Yemen case, the arbitral tribunal found “that the evidence submitted by both Parties is replete with assertions of sovereignty and jurisdiction that fail to mention any islands whatsoever, and with general references to ‘the islands’ with no further specificity” 365. tional Arbitral Awards, Vol. XXII, p. 209 at p. 268, para. 239. For analysis, see Jean-François Dobelle and Jean-Michel Favre, “Le différend entre l’Erythrée et le Yémen : La sentence arbitrale du 9 octobre 1998 sur le champ du différend et la souveraineté territorial”, Annuaire français de droit international, Vol. 44 (1998), p. 337 ; W. Michael Reisman, “The Government of the State of Eritrea and the Government of the Republic of Yemen : Award of the Arbitral Tribunal in the First Stage of the Proceedings (Territorial Sovereignty and Scope of Dispute)”, American Journal of International Law, Vol. 93 (1999), p. 668 ; Nuno Sérgio Marques Antunes, “The Eritrea-Yemen Arbitration : First Stage – The Law of Title to Territory Re-Averred”, International and Comparative Law Quarterly, Vol. 48 (1999), p. 362 ; Bette Shifman (ed.), The Eritrea-Yemen Arbitral Awards 1998 and 1999, TCM Asser Press, 2005. 363   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, pp. 669-678, paras. 94124 (concluding, however, that the facts did not demonstrate an inheritance of title from the sultanates to either of the parties). 364   Ibid., pp. 682-683, para. 136. 365   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, p. 269, para. 241.

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Moreover, even if the acts at issue may be associated with a particular island, the acts may not speak to the issue of sovereignty. Thus, naval patrolling in the area of an island may not demonstrate effectivités if it can be seen as simply exercising freedom of maritime navigation, rather than a claim to sovereignty over the island 366. By contrast, naval patrol landings on an island and search-and-rescue operations related to an island may demonstrate effectivités 367. Further, the acts cannot be done pursuant to the consent of another State ; they must be conducted à titre de souverain (as a sovereign). 368 Second, when assessing such acts, it is often  necessary for a court or tribunal to determine the “critical date” on which the dispute arose 369. The critical date is important because sovereignty concerning an island may change over time ; establishing that a State performed acts à titre de souverain at some time in the past is not sufficient for establishing that the State still had sovereignty at a later time 370. The International Court has explained : 366   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, pp. 682-683, para. 139. 367   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 657, para. 82. 368   In some instances, the relevant tribunal might decline to select a critical date, viewing that acts subsequent to the emergence of a dispute are of relevance, “unless the measure in question was taken with a view to improving the legal position of the Party concerned”. The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, p. 59 ; see also D. H. N. Johnson, “The Minquiers and Ecrehos Case”, International and Comparative Law Quarterly, Vol. 3 (1954), p. 189 at pp. 207-211 ; Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, p. 236, para. 95. 369   See generally L. F. E. Goldie, “The Critical Date”, International and Comparative Law Quarterly, Vol. 12 (1963), p. 1251. 370   See, e.g., Island of Palmas case (Netherlands, USA), 1928, p. 839 (“it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain

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“In the context of a maritime delimitation dispute or of a dispute related to sovereignty over land, the significance of a critical date lies in distinguishing between those acts performed à titre de souverain which are in principle relevant for the purpose of assessing and validating effectivités, and those acts occurring after such critical date, which are in general meaningless for that purpose, having been carried out by a State which, already having claims to assert in a legal dispute, could have taken those actions strictly with the aim of buttressing those claims. Thus a critical date will be the dividing line after which the Parties’ acts become irrelevant for the purposes of assessing the value of effectivités.” 371 Thus, the critical date is a point before which all facts relating to the dispute can be said to have occurred. At the same time, the critical date is also the point after which self-serving conduct of the parties can no longer affect the outcome of the dispute. Thus, if it becomes apparent in 1970 that two States both believe that they are sovereign over a particular island, then all the facts leading up to 1970 should be considered in determining which State is sovereign, but not facts occurring thereafter, when the States might be engaging in conduct specifically for the purpose of influencing the outcome of the dispute. Even so, some acts after the critical date might be deemed relevant, especially if they are a continuation of acts that began before the critical date 372. moment ; it must also be shown that the territorial sovereignty has continued to exist and did exist at the moment which for the decision of the dispute must be considered as critical”). 371   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, pp. 697-698, para. 117. 372   See, e.g., The Minquiers and Ecrehos Case (France/ United Kingdom), ICJ Reports 1953, p. 59 (finding that “in view of the special circumstances of the present case, subsequent acts

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If a State has been in effective occupation of an island for centuries, decades, and perhaps even just years before the critical date, without protest from any other State, then there may be little difficulty in finding it to be sovereign over the island. For example, in Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, a Chamber of the International Court found that Honduras had been in “effective occupation” of the Gulf of Fonseca island of El Tigre since 1849, supporting a conclusion that it was entitled to the island by succession from Spain 373. Conversely, El Salvador had asserted a claim of sovereignty over a different island in the Gulf (Meanguera) in 1854, “and was thereafter in effective possession and control of the island”, thereby justifying “the conclusion that El Salvador may be regarded as sovereign over the island. If there remained any doubt, its position in respect of Meanguera is made definitive by the acquiescence of Honduras in its exercise of sovereignty in the island since the later years of the last century.” 374 should also be considered by the Court, unless the measure in question was taken with a view to improving the legal position of the Party concerned”) ; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, p. 682, para. 135 (“The Court further observes that it cannot take into consideration acts having taken place after the date on which the dispute between the Parties crystallized unless such acts are a normal continuation of prior acts and are not undertaken for the purpose of improving the legal position of the Party which relies on them”) (citation omitted) ; Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 657, para. 83 (even after the critical date, regarding as relevant the continuation of prior acts à titre de souverain). 373   Land, Island and Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua intervening), ICJ Reports 1992, pp. 569-570, paras. 354-355. 374   Ibid., p. 579, para. 367.

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Yet establishing a “continuous” display of sovereignty may be difficult in the context of some islands, which may be small, far from a mainland, and sparsely (if at all) populated. An early and influential precedent on this issue with respect to an island was the Island of Palmas case, referred to in Section C above. The Island of Palmas (or Miangas) is located about halfway between the Philippines and Indonesia, and was claimed by the United States in the 1920s based upon cession of the Philippines archipelago by Spain to the United States in 1898 375. A key question, however, was whether Spain had sovereignty over the Island of Palmas in 1898, such that it could transfer sovereignty to the United States. The arbitrator, Max Huber, found that while Spanish explorers may have first discovered the island in the sixteenth century 376, the Netherlands had exercised a continuous and peaceful display of sovereignty starting in the seventeenth century 377, such that by 1898 Spain could not have ceded the island to the United States 378. Because of the remoteness of the island, the Netherlands’ display of sovereignty, to be regarded as “continuous”, did not require a constant presence. Huber stated : “Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or unin  Treaty of Paris, Art. III.   Island of Palmas case (Netherlands, USA), 1928, pp. 843-845. 377   Ibid., pp. 855-866. 378   Ibid., p. 868 (“The peaceful character of the display of Netherlands sovereignty for the entire period to which the evidence concerning acts of display relates (1700-1906) must be admitted. There is moreover no evidence which would establish any act of display of sovereignty over the island by Spain or another Power, such as might counter-balance or annihilate the manifestations of Netherlands sovereignty”). 375 376

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habited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas.” 379 When it comes to islands, Huber maintained that “the manifestations of sovereignty over a small and distant island, inhabited only by natives, cannot be expected to be frequent”, and that “it is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights.” 380 As such, the concept of “continuous” display of sovereignty does not necessarily entail physical settlement of the island. Rather, it is a continuous display of State authority over the island that is required. “Peaceful” display of sovereignty is generally understood to mean that no other State is contesting the exercise of such sovereignty, whether forcibly or otherwise. Thus, in the Legal Status of Eastern Greenland case, the Permanent Court of International Justice viewed as an important element “the extent to which the sovereignty is also claimed by some other Power” 381.   Op. cit. supra, footnote 376, p. 840.   Ibid., p. 867 ; see Philip C. Jessup, “The Palmas Island Arbitration”, American Journal of International Law, Vol. 22 (1928), p. 735, reprinted in Marcelo G. Kohen (ed.), Territoriality and International Law, Edward Elgar Publishing, 2016, p. 229. 381   Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ, 1933, p. 46. 379 380

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What exactly is meant by “display” of sovereignty ? The Eritrea-Yemen arbitral tribunal stated that “[t]he modern international law of the acquisition (or attribution) of territory generally requires that there be : an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis” 382. In considering whether power and authority were displayed with respect to the islands, the tribunal considered a series of actions by the two States : (1) public claims to sovereignty over the islands 383 ; (2) legislative 384 acts seeking to regulate activity on the islands   ; (3) licensing of activities on the islands or in the waters off the islands 385, including oil concessions 386 ; (4) arresting fishing vessels near the islands 387 ; (5) granting of permission to cruise around or to land on the island 388 ; (6) publishing notices to mariners or pilotage instructions relating to the waters off the islands 389 ; (7) conducting search and rescue operations or exercising other juris390 diction over incidents at sea near the islands   ; 382   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, p. 268, para. 239 (emphasis added). This finding echoes the Permanent Court’s conclusion in Legal Status of Eastern Greenland (Norway v. Denmark), PCIJ, 1933, pp. 45-46 (“a claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist : the intention and will to act as sovereign, and some actual exercise or display of such authority”). 383   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, pp. 269-272. 384   Ibid., pp. 272-273. 385   Ibid., pp. 273-274, 276, 287. 386   Ibid., pp. 289, 297-309. 387   Ibid., pp. 274-276. 388   Ibid., pp. 276-277. 389   Ibid., p. 278. 390   Ibid., pp. 278, 284.

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(8) maintaining naval and coast guard patrol vessels in the waters around the islands 391 ; (9) protecting the environment in the area of the islands 392 ; (10) the use of the waters for fishing around the islands by private persons coming from one or the other State 393 ; (11) landing parties on the islands 394 ; (12) establishing military posts on the islands 395 ; (13) constructing and maintaining facilities on the islands, including lighthouses 396 ; (14) exercising criminal or civil jurisdiction in respect of happenings on the islands 397 ; (15) the nationality of any persons living on the islands 398 ; and (16) other miscellaneous activities 399. Ultimately, however, the tribunal concluded that the evidence submitted as to such acts revealed “a chequered and frequently changing situation”, such that it could not play a decisive role in resolving the question of sovereignty over the islands in question 400. Other tribunals have also identified various ways in which a State may “display” its sovereignty over an island. In Minquiers and Ecrehos, the International Court focused on acts of administrative jurisdiction taken by the United Kingdom over the Minquiers islands, including : exercising jurisdiction over shipwrecks  ; holding inquests  ; registering contracts  ; building a customs house ; and carrying out other construction works, such as a slipway, a mooring buoy, and beacons 401. By contrast, French action in establishing buoys outside the reefs of the island group were not   Op. cit. supra, footnote 383, pp. 278-283.   Ibid., p. 283 393   Ibid., pp. 283-284. 394   Ibid., p. 285. 395   Ibid., pp. 285-286. 396   Ibid., pp. 286-287, 288-289. 397   Ibid., pp. 287-288. 398   Ibid., pp. 289-290. 399   Ibid., p. 291. 400   Ibid., p. 313, para. 456. 401   The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, pp. 67-69. 391 392

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“considered as sufficient evidence of the intention of that Government to act as sovereign over the islets ; nor [were] those acts of such a character that they can be considered as involving a manifestation of State authority in respect of the islets” 402. Numerous other cases before the International Court have also addressed effectivités with respect to islands. In Qatar v. Bahrain, the International Court found in favour of Bahraini sovereignty over the island of Qit’at Jaradah based on Bahrain’s construction and operation of navigational aids around the island 403. In Sovereignty over Pulau Ligitan and Pulau Sipadan, the Court found pertinent steps taken by Malaysia to control the taking of turtles and the collection of turtle eggs, to establish a bird sanctuary, and to build light towers on certain disputed islands 404. The Court may also have been influenced by the failure of Indonesia to include the disputed islands as base points when it issued a 1960 decree establishing the Indonesian archipelago 405. In Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, Honduran sovereignty   Op. cit. supra, footnote 401, p. 71.   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 99-100, para. 197. 404   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, pp. 681, 684-686, paras. 132, 143-149 ; see David A. Colson, “Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)”, American Journal of International Law, Vol. 97 (2003), p. 398 ; Fabio Spadi, “International Court of Justice : Pulau Ligitan and Pulau Sipadan : New Parameters for the Concept of Dependency in the Maritime Environment ? The ICJ Judgment of 17 December 2002”, International Journal of Marine and Coastal Law, Vol. 18 (2003), p. 295 ; Suzette V. Suarez, “Sovereignty over Pulau Ligitan and Pulau Sipadan Case (Indonesia/ Malaysia)”, in Max Planck Encyclopedia of Public International Law, Vol. IX, op. cit., p. 399. 405   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, p. 683, para. 137. 402 403

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over small cays was premised on various acts relating to the islands : the exercise of criminal jurisdiction ; the regulation of immigration and fishing ; the issuance of construction permits ; and drug enforcement activities 406. In Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, the Court found it relevant that in the 1950s Singapore began handling shipwrecks that occurred at the island of Pedra Branca/ Pulau Batu Puteh, flew the Singapore flag at the island, granted consent to other States for surveys in the area, installed military equipment on the island, and undertook other significant acts relating to the island 407. Similar acts by Colombia were found to support its sovereignty over certain islands in its dispute with Nicaragua, such as legislative and administrative acts concerning guano extraction, lime phosphate exploitation, and coconut collection 408. Thus, the requirement of a display of sovereignty over an island appears to be premised on the idea that, under international law, sovereignty is not just an abstract right ; it comprises within it a duty of a State to administer and protect human activities within a specific space, through concrete manifestations of State power 409. Acts by private persons normally are not “displays” of State power. Although Indonesia demonstrated to the Court that Indonesian fishers had traditionally used the waters around Ligitan and Sipidan Islands, the Court 406   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, pp. 715-716, 718, paras. 185, 189, 195-196. 407   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, pp. 82-96, paras. 231-277 ; see also Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, pp. 678-686. 408   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, pp. 641-662, paras. 25-103. 409   Island of Palmas case (Netherlands, USA), 1928, p. 839.

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disregarded such evidence, stating that “activities by private persons cannot be seen as effectivités if they do not take place on the basis of official regulations or under governmental authority” 410. Yet private acts might count if such persons are acting on behalf of the State or their actions are ratified by the State. For example, the acts of the Dutch East India Company in the Island of Palmas case were deemed “entirely assimilated to acts of the Netherlands State itself”, given that the company was “invested by the State to whom they were subject with public powers for the acquisition and administration of colonies” 411. The construction of an antenna on Bobel Cay by private parties authorized by Honduras to engage in oil exploration activities was deemed by the International Court as evidence of effectivités in support of Honduran sovereignty 412. A temporary and occasional occupation of the island, in the nature of three or four months per year, probably does not manifest an exclusive right of sovereignty but, rather, may suggest possible abandonment (or derelictio) of the island in favour of its use by others 413. Indeed, in 410   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, p. 683, para. 140. 411   Island of Palmas case (Netherlands, USA), 1928, p. 858. 412   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, pp. 720-721, paras. 205-207. 413   See Arbitral Award Relating to the Issue of Control and Sovereignty over Aves Island (Venezuela/Netherlands), 1865, p. 122 (“Considérant que, s’il est bien établi que les habitants de Saint-Eustache, possession néerlandaise vont pêcher des tortues et cueillir des œufs à l’île d’Aves, ce fait ne peut pas servir d’appui au droit de souveraineté, car il implique seulement une occupation temporaire et précaire de l’île, étant donné qu’il n’est pas, en l’espèce, la manifestation d’un droit exclusif, mais la conséquence de l’abandon de la pêche par les habitants des contrées voisines ou par son maître légitime . . . le gouvernement néerlandais a prouvé uniquement que quelquesuns de ses ressortissants établis à Saint-Eustache et à Saba vont depuis le milieu du XVIIIe siècle, pêcher la tortue et cueillir

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most instances, more significant acts may be necessary, especially if sovereignty is being contested by another State. Even so, as was the case when interpreting the meaning of “continuous”, the term “display” must be understood in context when being applied to small, remote, and perhaps uninhabited islands. The Permanent Court of International Justice also stated in Legal Status of Eastern Greenland : “It is impossible to read the records of the decisions in cases as to territorial sovereignty without observing that in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.” 414 Indeed, in the Clipperton Island case, France’s display of authority over the island after its discovery was minimal. The arbitrator’s willingness, nevertheless, to recognize France’s continued sovereignty appears to be due to the remoteness and uninhabitability of the island. The arbitrator explained that “if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed” 415. des œufs dans l’île d’Aves et qu’à cette fin ils y résident trois ou quatre mois par an”). 414   Legal Status of Eastern Greenland (Denmark v. Norway), PCIJ, 1933, p. 46 ; see also Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 100, para. 198 (recalling the finding in Legal Status of Eastern Greenland). 415   Clipperton Island, op. cit., p. 394.

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Similarly, the International Court noted in Sovereignty over Pulau Ligitan and Pulau Sipadan that “in the case of very small islands which are uninhabited or not permanently inhabited . . . effectivités will indeed generally be scarce” 416. In that case, the very small number of acts prompted ad hoc Judge Thomas Franck, in dissent, to lament that comparing the sparse evidence of effectivités on both sides was “like trying to weigh precisely a handful of feathers against a handful of grass : it can be done, but not very convincingly” 417. Even so, the Court stated that while Malaysia’s acts were “modest in number”, they were also “diverse in character”, were undertaken over “a considerable period of time” and demonstrated “a pattern revealing an intention to exercise State functions in respect of the two islands in the context of the administration of a wider range of islands” 418. In Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, the Court also stated that “[s]overeignty over minor maritime features, such as the islands in dispute between Honduras and Nicaragua, may therefore be established on the basis of a relatively modest display of State powers in terms of quality and quantity” 419. In that instance, Honduras’s acts mostly existed only for the decade prior to the critical date ; even so, the Court found that Honduras had proven 416   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, p. 682, para. 134. 417   Ibid., p. 696, para. 17 (dissenting opinion of Judge Franck). 418   Ibid., p. 685, para. 148 (Judgment). 419   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 712, para. 174 ; see also Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 100, para. 197 (“[T]aking into account the size of Qit’at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain’s claim that it has sovereignty over it”).

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“a sufficient overall pattern of conduct” that revealed an intention to act as sovereign over the islands that was not counterbalanced by any Nicaraguan conduct 420. As such, any given tribunal’s analysis of acts displaying sovereignty may largely consist of weighing the relative strength of competing claims by the two disputing States with respect to the island prior to the critical date ; a State whose claim to title by possession is tenuous may nevertheless be found sovereign if the other State’s claim is even weaker 421. A State may face considerable difficulty in successfully inferring title based solely on effectivités if the other State has a well-established title to the island based on some other method (for example, agreement, succession, or military conquest). A chamber of the International Court of Justice in Frontier Dispute (Burkina Faso/Republic of Mali) stated in 1986 that “[w]here the act does not correspond to the law, where the territory which is the subject of the dispute is effectively administered by a State other than the one possessing the legal title, preference should be given to the holder of the title” 422. Further, the entire Court stated in 2005 that “effectivités can only be of interest in a case in order to complete or make good doubtful or absent legal titles, but can 420   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, pp. 716, 721, paras. 189, 208. 421   See, e.g., Arbitral Award Relating to the Issue of Control and Sovereignty over Aves Island (Venezuela/Netherlands), 1865, pp. 122-123 (Venezuelan sovereignty based on minimal acts and succession to Spain’s sovereignty over the island) ; Clipperton Island, 1931, op. cit. 422   Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986, pp. 586-587, para. 63.

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never prevail over titles with which they are at variance” 423. Likewise, the arbitral tribunal contemplating sovereignty over islands in the Red Sea between Eritrea and Yemen found that the 1923 Treaty of Lausanne, by which Turkey renounced title to some of the islands – leaving them in an indeterminate legal position as between Great Britain (controlling Yemen) and Italy (controlling Eritrea) – impeded an ability to argue title by acquisitive prescription through Italian acts, at least without proven acquiescence by the other Parties to the Treaty of Lausanne 424. Even so, much will depend on context. In Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), the International Court found that Malaysia originally had title based on succession, yet Singapore’s continuous and peaceful display of sovereignty over Pedra Branca/ Pulau Batu Puteh, without any protest by Malaysia, allowed sovereignty to transfer from Malaysia to Singapore. The Court characterized such a transfer as a form of tacit agreement noting that, while agreement may be by treaty, it “might instead be tacit and arise from the conduct of the Parties. International law does not, in this matter, impose any particular form. Rather it places its emphasis on the parties’ intentions” 425. At the same time, the Court asserted that such a passing of sovereignty is not easily established ; “any passing of sovereignty over territory on the basis of the conduct of the Parties . . . 423   Frontier Dispute (Benin/Niger), ICJ Reports 2005, p. 149, para. 141. 424   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, pp. 250-253, paras. 155-168. 425   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, p. 50, para. 120.

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must be manifested clearly and without any doubt by that conduct and the relevant facts” 426. G.  Relevance of Proximity/Contiguity of the Island to Other Features As previously noted, the arbitral tribunal in the Philippines v. China case viewed “the proximity of the feature to other inhabited areas and populations” as a relevant factor in determining whether the island was capable of sustaining “human habitation or economic life” 427. Is proximity also relevant with respect to the determination of sovereignty ? The fact that an island is close to a State’s continental territory, standing alone, is not dispositive when considering sovereignty. Max Huber in the Island of Palmas case stated that : “[t]he title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law” 428. In his view : “Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule of international law, but the alleged principle itself is by its very nature so uncertain and contested that even Governments of the same State have on different   Op. cit. supra, footnote 425, p. 151, para. 122.   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 229, para. 546. 428   Island of Palmas case (Netherlands, USA), 1928, p. 869. 426 427

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occasions maintained contradictory opinions as to its soundness.” 429 That view appears supported by the outcome in the Minquiers and Ecrehos case, in which islands very close to France were nonetheless found to be under the sovereignty of the United Kingdom 430. Even so, Huber did not fully discount the possible relevance of proximity. He noted that “[a]s regards groups of islands, it is possible that a group may under certain circumstances be regarded as in law a unit, and that the fate of the principal part may involve the rest” 431. This approach also appears to be borne out by the Minquiers and Ecrehos case, where the Court found that the Ecrehos group of islands for centuries was “considered and treated as an integral part of the fief of the Channel Islands which were held by the English King . . .” 432. In other words, while the Ecrehos group of islands was very close to France, they were also proximate to the Channel Islands, which were indisputably British. Indeed, proximity played an important role in the Eritrea-Yemen arbitration. As previously noted, the arbitral tribunal in that case concluded that the relevant international agreement (the 1923 Treaty of Lausanne) left the status of the islands indeterminate, and that the evidence of effectivités was insufficient to establish title on the basis of peaceful and continuous display of sovereignty. Instead, the tribunal found relevant   Op. cit. supra, footnote 428, p. 854.   The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, p. 72. 431   Island of Palmas case (Netherlands, USA), 1928, p. 855. While the act of taking possession of a group of islands might not extend to all portions, Huber apparently believed that, over time, a continuous display of sovereignty would require actions throughout the whole of the islands. Ibid. 432   The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953, p. 67. 429 430

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“the geographical situation that the majority of the islands and islets and rocks in issue form an archipelago extending across a relatively narrow sea between the two opposite coasts of the sea. So there is some presumption that any islands off one of the coasts may be thought to belong by appurtenance to that coast unless the state on the opposite coast has been able to demonstrate a clearly better title. This possible further factor looks even more attractive when it is realised that its influence can be seen very much at work in the legal history of these islands ; beginning indeed with the days of Ottoman rule when even under the common sovereignty of the whole region it was found convenient to divide the jurisdiction between the two coastal local authorities . . .” 433 Citing to scholars such as Sir Gerald Fitzmaurice, Sir Humphrey Waldock, and Charles de Visscher, the tribunal maintained that certain land features can be grouped together as an “entity” or “natural unity”, allowing for a presumption that sovereignty over one part entails sovereignty over the other. Specifically : “Thus, the authorities speak of ‘entity’ or ‘natural unity’ in terms of a presumption or of probability and moreover couple it with proximity, contiguity, continuity, and such notions, well known in international law as not in themselves creative of title, but rather of a possibility or presumption for extending to the area in question an existing title already established in another, but proximate or contiguous, part of the same ‘unity’.” 434 The tribunal then allocated the five island groups with a close eye on the geography. First, four small 433   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, pp. 313-314, para. 458. 434   Ibid., p. 315, para. 462.

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“rocks” called the Mohabbakahs, located mostly within Eritrea’s territorial sea, were deemed to be under Eritrean sovereignty 435. Second, three small islands known as the Haycocks, located outside Eritrea’s territorial sea but still very proximate to its coast, were also deemed to be under Eritrea’s sovereignty 436. Third, the South West Rocks – located just to the north of the Haycocks and arguably forming “the eastern-most limit of Africancoast jurisdiction” – were allocated to Eritrea 437. Fourth, the Zuqar-Hanish group of islands, located more central to the Red Sea, were therefore not addressed based on geography, but on other factors relating to the history of Ottoman and British rule and on some effectivités in recent years, which the tribunal said pointed to Yemen’s sovereignty 438. Finally, Al-Tayr Island and the Zubayr group of islands, relatively isolated and located well out to sea, were slightly nearer to Yemeni coastal islands. The tribunal regarded them as being under Yemen’s sovereignty 439. Proximity also appears relevant when considering sovereignty over very small features (islets or rocks) that are proximate to an island. The tribunal in the Beagle Channel case maintained that “[a]n obvious principle of appurtenance required that accessory and minor formations not specifically allocated [by treaty], should be deemed so to have been by implication, together with the larger pieces of territory to which they were immediately appurtenant” 440.   Op. cit. supra, footnote 433, pp. 316-318, paras. 467-475.   Ibid., pp. 318-320, paras. 476-482.   Ibid., p. 320, paras. 483-484. 438   Ibid., pp. 320-327, paras. 485-508. 439   Ibid., pp. 327-329, paras. 509-524. 440   Dispute concerning the Beagle Channel (Argentina/ Chile), 1977, p. 145, para. 108 (though the quote might be viewed as expressing Chile’s position, the Court went on to 435 436 437

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Similarly, in the Land, Island and Frontier Dispute between El Salvador and Honduras, proximity was found relevant in determining that Meanguerita Island was a dependency of the nearby, larger Meangura Island, and thus fell within the sovereignty of El Salvador 441. According to the Chamber, the “small size of Meanguerita, its contiguity to the larger island, and the fact that it is uninhabited, allow its characterization as a ‘dependency’ of Meanguera . . .” 442. Even within a group of islands, however, proximity alone will not be dispositive if there are other factors that suggest a partition of sovereignty within the group 443. H.  Relevance of Maps Maps will often feature as possible evidence to establish discovery, occupation or display of sovereignty over an island throughout different periods of time. As a general matter, “maps appearing contemporaneously with the territorial settlement or within a relatively short period after it will, other things being equal, have greater probative value than those produced later when the mists of time have obscured the landscape and the original participants have left it” 444. Further, “maps produced before any controversy over the settlement has arisen will tend to be more reliable than those coming afterwards” 445. say that it “shares the Chilean view about the applicability in general of the principle of appurtenance”, ibid., p. 146, para. 109). 441   Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras ; Nicaragua intervening), ICJ Reports 1992, p. 570, para. 356. 442   Ibid. 443   See, e.g., Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, pp. 99-101 (dividing up three disputed features within a group of islands). 444   Ibid., p. 168, para. 142. 445   Ibid.

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Maps issued by a Government or under governmental auspices usually will be regarded as demonstrating the position of the Government 446, whereas maps issued by private map-makers will not. If cartographers all agree as to the nationality of an island, then maps might provide authoritative evidence, but where there is ambiguity or conflicting map evidence, then other evidence is likely necessary 447. Ambiguity may arise when maps fail to “precisely indicate the political distribution of territories” 448 or when the map-maker appears to have “referred to already existing maps” rather than basing “his decision on information carefully collected for the purpose” 449. Where sovereignty over an island is governed by an agreement between two States, the agreement is the source of the legal relationship, and if a map is included as part of the agreement it may well be conclusive 450. Maps not formally included in the agreement may nevertheless 446   See op. cit. supra, footnote 443, pp. 164-165, para. 138 (“At a time when many governments did not possess intramural printing or publishing facilities of their own, and had to rely on outside resources, much that appeared bearing such indications as ‘under government auspices’, ‘with government approval’, ‘at government request’ must rank as having at least some quasi-official status”) ; ibid., p. 167, para. 142 (1). 447   See Arbitral Award Relating to the Issue of Control and Sovereignty over Aves Island (Venezuela/Netherlands), 1865, p. 121 (“Considérant que, pour donner de l’importance en matière de propriété à l’autorité des géographes, il est nécessaire qu’ils soient tous, ou la plupart d’entre eux, unanimement d’accord sur la nationalité d’un territoire donné et que, n’en étant pas ainsi en l’espèce, on doit exiger d’autres titres d’une force et d’une valeur plus grandes que l’opinion des géographes”). 448   Island of Palmas case (Netherlands, USA), 1928, p. 852. 449   Ibid. 450   Dispute concerning the Beagle Channel (Argentina/ Chile), 1977, p. 166, para. 141 (“There was certainly no map that was actually part of the Treaty settlement : if there were, it would of course be conclusive, and there could be no dispute unless some technical error in it came to light later”).

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illuminate or clarify its meaning. The tribunal in the Beagle Channel case noted that “the evidence of a map could certainly never per se override an attribution [of sovereignty] made, or a boundary-line defined, by Treaty, – and even where such an attribution or definition was ambiguous or uncertain, map evidence of what it might be was accepted with caution” 451. Even so, the tribunal said that rather than “setting up one or more maps in opposition to certain Treaty attributions or boundary definitions”, it was reasonable to use maps for “elucidation” of the treaty 452. Maps pre-dating the treaty might speak to the “intentions of the Parties, or give graphic expression to a situation of fact generally known at the time or within the . . . knowledge of the negotiators” 453 while maps post-dating the treaty “can throw light on what the intentions of the Parties in respect of [the treaty] were, and, in general, on how it should be interpreted” 454. A recent example is the use by the International Court in 2014 of a 1998 Chilean map to confirm the meaning of a Chile-Peru agreement reached in 1968-1969 455. Certainly, maps produced by a Government that are adverse to its position may be of particular interest to a dispute settler 456. I.  Alternative Approaches International law generally approaches issues of sovereignty and sovereign rights as “black and white”   Op. cit. supra, footnote 450, pp. 163-164, para. 137.   Ibid. 453   Ibid. 454   Ibid. 455   Maritime Dispute (Peru v. Chile), Judgment of 27 January, ICJ Reports 2014, p. 3 at p. 64, para. 172. 456   See, e.g., Island of Palmas case (Netherlands, USA), 1928, p. 852 ; Dispute concerning the Beagle Channel (Argentina/Chile), 1977, p. 159, para. 128. 451 452

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rather than “grey”. In other words, international law is oriented toward regarding sovereignty over territory as residing with a single State, and toward regarding a State’s sovereign rights in a maritime space, once established, as excluding such rights for other States. Consequently, international law is not structured to advance creative solutions whereby States might enjoy joint sovereignty over territory, or whereby one State might have sovereignty over the island while another has sovereign rights in the adjacent maritime space. International courts and tribunals are typically bound by the relative rigidity of international law and are virtually never given leeway to reach conclusions ex aequo et bono. States, however, are free to pursue creative solutions to their disputes if they wish to do so, either through direct negotiations or with the assistance of a mediator or conciliator. For example, the Beagle Channel arbitral tribunal in 1977 concluded that the three islands of Picton, Nueva, and Lennox in the Beagle Channel, together with the appurtenant islets and rocks, all belonged to Chile 457. That finding, in turn, drove a conclusion as to the location of the maritime boundary between Argentina and Chile, which was a median line 458 through the Beagle Channel with minor deviations to accommodate navigation 459. While Chile was delighted with the arbitral award, Argentina was not, declaring the award to be contrary 457   Dispute concerning the Beagle Channel (Argentina/ Chile), 1977, p. 189, para. 176. 458   As noted in Chapter VII, a maritime boundary between two adjacent or opposite States might be an “equidistance line”, meaning a line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial sea of the respective States is measured. The term “median line” is often used when speaking of an equidistance line between opposite coasts. 459   Dispute concerning the Beagle Channel (Argentina/ Chile), 1977, pp. 189-190.

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to international law and therefore void 460. As such, the dispute between them remained ongoing, bringing the two States almost to the brink of war in December 1978. Fortunately, in January 1979, the two States agreed to have the matter mediated by the Pope 461, who developed a creative solution in December 1980, recognizing Chile’s sovereignty over the islands (which was of prime importance to Chile), but recognizing various rights of prime importance to Argentina concerning navigation and maritime boundary delimitation 462. That solution eventually was memorialized in the Treaty of Peace and Friendship of 1984 between Chile and Argentina 463. Other examples of co-management or development of maritime resources exist, even in situations where 460   “Declaration of Nullity”, in Note from the Minister for Foreign Affairs of the Argentine Republic to the Ambassador of Chile in Argentina, 25 January 1978, Reports of International Arbitral Awards, Vol. XXI, p. 226. 461   Act of Montevideo by which Chile and Argentina Request the Holy See to Act as a Mediator with Regard to Their Dispute over the Southern Region and Undertake Not to Resort to Force in Their Mutual Relations (with Supplementary Declaration), done at Montevideo on 8 January 1979, Reports of International Arbitral Awards, Vol. XXI, p. 240 ; see Guillermo R. Moncayo, “La mediation pontificale dans l’affaire du Canale Beagle”, Recueil des cours, Vol. 242 (1993), p. 197 ; Mark Laudy, “The Vatican Mediation of the Beagle Channel Dispute : Crisis Intervention and Forum Building”, in Melanie C. Greenberg, John H. Barton and Margaret E. McGuinness (eds.), Words over War : Mediation and Arbitration to Prevent Deadly Conflict, Rowman & Littlefield Publishers, 2000, p. 293 ; Louise Angélique de La Fayette, “Beagle Channel Dispute”, in Max Planck Encyclopedia of Public International Law, Vol. I, op. cit., p. 863. 462   “The Proposal of the Mediator, Suggestions and Advice (Papal Proposal in the Beagle Channel Dispute)”, 12 December 1980, Reports of International Arbitral Awards, Vol. XXI, p. 243. 463   Treaty of Peace and Friendship (with annexes and maps), Chile-Argentina, done at Vatican City on 29 November 1984, United Nations, Treaty Series, Vol. 1399, p. 89.

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States continue to dispute sovereignty over the relevant island feature. Typically, establishment of such a regime does not prejudice the outcome of the dispute concerning sovereignty over the island 464. For example, Tromelin Island is an uninhabited island located about 450 kilometres east of Madagascar in the Indian Ocean. Although administered as a French overseas territory, Mauritius claims sovereignty over the island 465. Even so, France and Mauritius in 2010 reached agreement on co-management of the island without prejudice to their respective positions as to sovereignty 466. Yet not all such attempts at co-operation have succeeded, such as the fledgling efforts by China and Japan to establish a joint development zone in the East China Sea 467. 464   See, e.g., The Minquiers and Ecrehos Case (France/ United Kingdom), ICJ Reports 1953, p. 58 (“[T]he Court cannot admit that such an agreed common fishery zone in these waters would involve a régime of common user of the land territory of the islets and rocks, since the Articles relied on refer to fishery only and not to any kind of user of land territory”). 465   André Oraison, “A propos du conflit franco-mauricien sur le récif de Tromelin : (la succession d’Etats sur l’ancienne Isle de Sable)”, Revue de droit international de sciences diplomatiques et politiques, Vol. 65 (1987), p. 85. 466   Accord-cadre entre le Gouvernement de la République de Maurice et le Gouvernement de la République française sur la cogestion économique, scientifique et environnementale relative à l’île de Tromelin et à ses espaces maritimes environnants, done at Port-Louis on 7 June 2010, Art. 2, available at : https ://www.senat.fr/leg/pjl11-299-conv.pdf ; see also Colson and Smith, op. cit., pp. 3462-3463. 467   For discussion of the 2008 “Principled Consensus on the East China Sea Issue” between China and Japan, see Chien-peng Chung, Contentious Integration : Post-Cold War Japan-China Relations in the Asia-Pacific, Routledge, 2014, pp. 76-78 ; Suk-Kyoon Kim, “Perspectives on East China Sea Maritime Disputes : Issues and Context”, in Clive Schofield, Seokwoo Lee and Moon-Sang Kwon (eds.), The Limits of Maritime Jurisdiction, Martinus Nijhoff, 2014, p. 285 at pp. 292-296. On the value of negotiation as a method of dispute

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J. Conclusion As discussed in this chapter, a State can exercise sovereignty over an island regardless of its size. Such sovereignty or “title” to an island may arise in various ways  : title by discovery of territory that is terra nullius ; title by agreement with another State that had sovereignty or a claim to sovereignty ; title by State succession ; title by military conquest ; and title by continuous and peaceful display of sovereignty. The relative merit of competing claims may turn in part on international law doctrines of acquiescence, estoppel, or tacit agreement, as well as a State’s renunciation of title over or abandonment of an island. Proximity of the island to other uncontested territory may be a relevant factor, though often not determinative. Maps will typically feature in such disputes, though they must be approached with caution. The relatively rigid approach of international law in regarding a State as either having or not having sovereignty in some instances has been softened through co-operation between States with respect to administration of an island and its maritime zones, though examples in this regard are not common. Once a State’s sovereignty is established, an important legal consequence for that State is the maritime zones generated by the island. Before addressing that issue, however, the next chapter briefly considers islands located not at sea, but in inter-State rivers or lakes, an important issue for delimitation of land boundaries between States, which can lead to controversy and even armed conflict.

settlement leading to the creation of such joint development zones, see infra, Chapter IX, Sec. B.

CHAPTER V

ISLANDS WITHIN BOUNDARY RIVERS OR LAKES A.  General Points Islands can be located in many different types of water features. When islands are found in the territorial seas or along the coast of a State, the principal issues concern the drawing of baselines. When they are found further out to sea, the principal issues concern whether they generate maritime zones and whether those zones overlap with the maritime zones generated by other features. Both of those situations are addressed in Chapter VI. Yet islands can also be found in areas that are not considered part of the seas, but which are important for inter-State relations. Specifically, islands can be found in lakes and rivers that serve as boundaries between two States. When this happens, disputes may arise as to sovereignty over the island or the relevance of the island for delimiting the boundary. The issues discussed in Chapter IV with respect to sovereignty over islands are applicable as well when addressing islands found in international lakes and rivers, and may speak both to sovereignty over the island and to sovereignty over the appurtenant waters. Islands found in these locations are not addressed through application of any of the rules of the LOS Convention, nor are they subject to dispute resolution under that Convention. Special rules or methods, however, may come into play with respect to islands found in boundary rivers and lakes, which merit at least a brief discussion.

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B.  Islands in Boundary Rivers There exist various contemporary disputes over islands located in boundary rivers, meaning rivers that serve as a boundary between two or more States. For example, there is a small island located at the confluence of the Uruguay River and the Quarai (or Cuareim) River, where the borders of Argentina, Brazil, and Uruguay intersect. The island, which is approximately 2 kilometres long and one-half kilometre wide, is known as Brazilian Island, and is claimed by both Brazil and Uruguay, though neither side is actively enforcing its claim 468. Brazil also has a dispute with Bolivia regarding a small island that lies in the Rio Mamoré, called Ilha de Guajará-Mirim by Brazil and Isla Suárez by Bolivia 469. Examples in Europe include disputes between Croatia and Serbia relating to the islands of Vukovar and Sarengrad located in the Danube River 470. Such disputes may principally concern sovereignty over the island (which may then collaterally affect the location of the boundary) or the location of the boundary (which may then collaterally affect sovereignty over the island). In reaching agreement on the location of the boundary, States may choose one of several options : placing the boundary on one or the other bank of the river ; placing the boundary along a median line ; or placing the boundary along the thalweg of the river, meaning a line that follows the deepest channel of the river. The last option has the benefit of providing both States access to the most navigable part of the river, but all these options have the disadvantage of choosing an 468   See Emmanuel Brunet-Jailly (ed.), Border Disputes : A Global Encyclopedia, Vol. 2, ABC-CILO, 2015, pp. 478-479. 469   Central Intelligence Agency, The World Factbook : 2010 Edition, Washington DC, Potomac Books, 2010, p. 82. 470   See Mladen Klemenčić and Clive H. Schofield, “War and Peace on the Danube : The Evolution of the Croatia-Serbia Boundary”, IBRU Boundary & Territory Briefing, Vol. 3 (2001).

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inherently unstable line. Indeed, an island located on one side of a thalweg may within a few years be located on the other side of the thalweg. Of course, riverine islands themselves can be unstable, as they are formed, broken down, and reformed over time by the fluvial forces of the river 471. A further disadvantage of identifying the boundary as the thalweg, even as a part of a formal agreement, is that it may not be clear where the thalweg is located. Such uncertainty featured in the International Court’s 1999 judgment in the Kasikili/Sedudu Island dispute 472. In that case, a small, uninhabited island (of less than 5 square kilometres) known as Kasikili Island by Namibia and Sedudu Island by Botswana formed in the Chobe River between the two States. The two States disagreed as to sovereignty over the island, but agreed to take the matter to the International Court of Justice for resolution. The Court focused on a colonial era treaty between Germany and the United Kingdom, which in 1890 established the boundary between German South-West Africa (which became Namibia) and the United Kingdom’s Bechuanaland Protectorate in southern Africa (which became Botswana). The agreement referred to a portion of the boundary as the “centre of the main channel” of the Chobe River, but this left unclear whether that   See Jayewardene, op. cit., pp. 193-235.   Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, p. 1061, paras. 22-23. See generally Charalambos Apostolidis, “L’affaire de l’Ile de Kasikili/Sedudu (Botswana/Namibie) : L’arrêt de la CIJ du 13 Decembre 1999”, Annuaire français de droit international, Vol. 45 (1999), p. 434 ; Marcelo G. Kohen, “Uti possidetis, prescription et pratique subséquent à un traité dans l’affaire de l’Ile de Kasikili/ Sedudu devant la Cour internationale de Justice”, German Yearbook of International Law, Vol. 43 (2000), p. 253 ; Malcolm N. Shaw, “Case concerning Kasikili/Sedudu Island (Botswana/ Namibia)”, International and Comparative Law Quarterly, Vol. 49 (2000), p. 964. 471 472

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channel ran to the north or to the south of the island. The Court decided that the meaning of “centre of the main channel” had to be understood based on contemporary hydrological knowledge about the river, thus raising a notable (albeit under-analysed) intertemporal aspect of treaty interpretation 473. Consequently, the Court analysed the depth and the width of the channel, the volume of water carried through the possible channels, the profile of the riverbed, and the navigability of the channels, saying that all these elements (and not just any one of them) must be taken into account. Subsequent practice by the parties of the treaty, including the issuance of maps, was deemed relevant to the analysis, but such practice 474 ultimately was found inconclusive  . An argument by Namibia that it had acquired sovereignty over the island through prescription, based on decades of use of the island by Namibian tribesman, failed because such conduct was a purely private activity, thus demonstrating no acts à titre de souverain by Namibia 475. Ultimately, the Court concluded that “the northern channel of the River Chobe around Kasikili/Sedudu Island must be regarded as its main channel” 476, thereby resulting in the island being regarded as part of Botswana. At the same time, the Court decided, based on numerous contemporary 473   Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, p. 1060, para. 20 ; see P. Tavernier, “Observation sur le droit intertemporal dans l’affaire de l’île de Kasikili/Sedudu (Botswana/Namibie) : Arrêt du 13 Decembre 1999”, Revue générale de droit international public, Vol. 104 (2000), p. 429. 474   Hazel Fox, “Article 31 (3) (A) and (B) of the Vienna Convention and the Kasikili/Sedudu Island Case”, in Malgosia Fitzmaurice, Olufemi Elias and Panos Merkouris (eds.), Treaty Interpretation and the Vienna Convention on the Law of Treaties : 30 Years On, Martinus Nijhoff, 2010, p. 59. 475   Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, pp. 1105-1106, para. 98. 476   Ibid., p. 1072, para. 41. Four judges dissented, finding that the southern branch was the main channel and that therefore the island was Namibian.

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declarations by the two States, that nationals and vessels of both States should be granted equal access to the channels straddling the island 477. A similar dispute arose in Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) 478. The San Juan River that flows east from Lake Nicaragua to the Caribbean Sea serves as a major portion of the boundary between Nicaragua to the north and Costa Rica to the south. As it approaches the Caribbean Sea, it divides into two branches : the northerly Lower San Juan River and the southerly (and larger) Colorado River. The approximately 150 square kilometres situated between these two branches is referred to as Isla Calero. At the northern point of Isla Calero is a smaller region of approximately 17 square kilometres, which contains important wetlands of international concern, known to Costa Rica as Isla Portillos and to Nicaragua as Harbor Head 479. Both Costa Rica and Nicaragua claimed sovereignty over Isla Portillos/Harbor Head. In resolving the matter, a central element of the Court’s decision was an 1858 Treaty of Limits 480 concluded by the two countries after a period of hostilities, which fixed the course of their boundary from the Pacific Ocean to the Caribbean   Op. cit. supra, footnote 475, pp. 1107-1108, para. 103.   The case was joined with a second case brought by Nicaragua. Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment of 16 December 2015, ICJ Reports 2015, available at : http ://www.icj-cij.org. 479   Ibid., pp. 30-33, paras. 56-64. 480   Treaty of Limits, Costa Rica-Nicaragua (Cañas-Jeres Treaty), done at San José on 15 April 1858, Coleccion de los Tratados Internacionales Celebrados por la Republica de Costa Rica, Vol. 1 (1892), p. 97 (in Spanish), reprinted in Cairo A. R. Robb et al. (eds.), International Environmental Law Reports, Vol. 1, Cambridge University Press, 1999, Appendix 2, pp. 551-554 (in English). 477 478

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Sea. Among other things, that treaty was interpreted in an 1888 arbitral award issued by US President Grover Cleveland 481, and led in 1897-1900 to several further demarcation awards by a US engineer (General Edward Porter Alexander) appointed by the two countries. Article II of the 1858 Treaty placed the boundary on the “right bank of the . . . river”, and the Court interpreted that provision in light of Article VI, which provided for Costa Rica’s right of free navigation on the river. Taken together, the articles indicated to the Court that the boundary was formed by the right bank of a channel of the river that is a navigable “outlet of commerce”. Nicaragua argued that the relevant channel was not the Lower San Juan River but, rather, a channel further to the south (connecting the San Juan River to a point south of the Harbor Head lagoon). In rejecting that claim, the Court reviewed various evidentiary materials, finding that : (1) satellite and aerial images were insufficient to prove that a natural channel linked the San Juan River with the Harbor Head lagoon ; (2) affidavits of Nicaraguan State officials provided little support for Nicaragua’s claim ; (3) maps tended to support Costa Rica’s claim that the Lower San Juan River was the relevant channel, though their significance was limited because they did not provide sufficient details of the disputed territory ; (4) information regarding effectivités were also of limited significance, and, in any event, could not affect the title to sovereignty resulting from the 1858 Treaty and the Cleveland and Alexander awards ; (5) Nicaragua’s claim that the channel further to the south was, for a long time, navigable was contrary to certain evidence, such as the presence in its bed of large trees (which had been cleared by Nicaragua in 2010) ; and (6) no natural channel exists any longer (though it was dredged by Nicaragua in 481   Awards regarding the Border between Costa Rica and Nicaragua (Costa Rica/Nicaragua) of 15 July 1859, Reports of International Arbitral Awards, Vol. XXVIII, p. 189.

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2010), casting doubt that it was, over a number of years, a navigable channel. Consequently, the Court concluded that the Lower San Juan River was the relevant channel and its right bank is the boundary between Costa Rica and Nicaragua. Therefore, sovereignty over Isla Portillos/ Harbor Head belonged with Costa Rica 482. In some instances, there may be no formal agreement between States as to the selection of the thalweg or any other method for establishing the boundary, in which case resort must be had to other evidence. A good example is the Benin/Niger Frontier Dispute decided by a Chamber of the International Court of Justice in 2005 – a dispute that almost brought Benin and Niger to war in 1963. That dispute concerned, inter alia, islands in the Niger River, such as Lété Island, measuring approximately 16 kilometres by 4 kilometres. The two States could not agree upon their boundary and a joint delimitation commission failed to resolve the matter, so they agreed to take the matter to the International Court of Justice. The Chamber first focused on whether there was evidence of title with respect to the frontier, including the islands, in the laws or regulations of France during the time of its colonial rule in French West Africa, prior to the independence of Niger and Benin in 1960 483. If so, then 482   Op. cit. supra, footnote 481, paras. 65-99. In January 2017, Costa Rica brought another case, this time with regard to a dispute concerning the location of the land boundary separating Los Portillos/Harbor Head lagoon sandbar from Isla Portillos, and concerning alleged establishment of a Nicaraguan military camp on the beach of Isla Portillos. The Court then joined that case with a pending case brought by Costa Rica concerning maritime delimitation between the two countries in the Caribbean Sea. See Maritime Delimitation in the Caribbean Sea and Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Order of 2 February 2017, available at : http :// www.icj-cij.org. 483   Frontier Dispute (Benin/Niger), ICJ Reports 2005, p. 120, para. 47.

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the principle of uti possidetis would allocate the island in accordance with such title. After finding no such evidence 484, the Chamber then focused on whether there were colonial or post-colonial effectivitiés. The Chamber found that there were relevant acts from 1914 to 1954, notably a letter written by a French commandant in the Niger (Gaya) sector in 1914 to which was attached a list of islands, allocating to each colony islands based on their positions with respect to the main navigable channel of the river 485. Although never formally approved, the letter led to a modus vivendi that was largely uncontested for decades 486. For example, the letter assigned Lété Island to Niger (Gaya), which was administered thereafter by its authorities. Based on such evidence, the Chamber concluded that “during this period, the main navigable channel of the River Niger was considered by both sides to be the boundary” 487, and remained so at the time of independence 488. A different type of dispute that may arise in the future with respect to islands concerns environmental protection. International disputes involving environmental concerns have already been raised with respect to watercourses 489 and it can be expected that such disputes over time may be associated with activities on or related to riverine islands. In that regard, some attention may be paid to   Op. cit. supra, footnote 483, p. 127, para. 75.   Ibid., p. 128, para. 83. 486   Ibid., p. 129, paras. 85-86. 487   Ibid., p. 132, para. 98. 488   Ibid., p. 134, para. 108 ; see Fabio Spadi, “The International Court of Justice Judgment in the Benin-Niger Border Dispute : The Interplay of Titles and ‘Effectivités’ under the Uti Possidetis Juris Principle”, Leiden Journal of International Law, Vol. 18 (2005), p. 777. 489   See Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997, ICJ Reports 1997, p. 47 ; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 2010, p. 14. 484 485

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the 1997 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses 490, a treaty governing shared freshwater resources that codifies and progressively develops international law. Article 23 of the treaty provides : .

“Watercourse states shall, individually and, where appropriate, in cooperation with other states, take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards.” Such standards might include the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-based Sources adopted by States which, among other things, recommends that States identify and assess problems related to vulnerable areas of concern, including that of small islands 491. C.  Islands in Boundary Lakes Lakes that are entirely enclosed within a single State are a part of that State’s internal waters ; as such, they are not of interest for this study. Rather, this study is concerned with lakes that are surrounded by two or more States, and specifically with the role that islands may play when located in such lakes. A threshold issue concerns when it is that a particular water feature is a “lake” rather than a “sea”. The Black 490   GA Res. 51/229, at 1, UN doc. A/RES/51/206 (21 May 1997) ; see Attila Tanzi and Maurizio Arcari, The United Nations Convention on the Law of International Watercourses : A Framework for Sharing, Kluwer Law International, 2001 ; Stephen McCaffrey, The Law of International Watercourses, 2nd ed., Oxford University Press, 2007. 491   UN Environment Programme, Global Programme of Action for the Protection of the Marine Environment from Land-based Sources, UNEP(OCA)/LBA/IG.2/7 (5 December 1995), p. 13.

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Sea, for example, might be regarded as a very large lake, given that it is an enclosed body of water bounded on all sides by States (Bulgaria, Georgia, Romania, Russia, Turkey, and Ukraine). The Black Sea is connected, of course, with the Aegean Sea through the Bosphorus and the Dardanelles, but many lakes are connected by rivers to the ocean. The issue might turn on whether there are flows of water in both directions, which is the case for the Black Sea, although on an annual basis it has a net outflow of water to the Aegean Sea. In any event, the Black Sea is regarded by the littoral States as a “sea” rather than a “lake”, which is why the LOS Convention was applied by the International Court of Justice in the 2009 Maritime Delimitation in the Black Sea case 492. To the east of the Black Sea lies the Caspian Sea, which is only somewhat smaller in size 493. Like the Black Sea, the Caspian Sea is bounded by several States (Azerbaijan, Iran, Kazakhstan, Russia, and Turkmenistan). The biggest difference may be that the Caspian Sea has no outflow of water, thereby making it the largest enclosed, inland body of water on Earth. Even so, its size and salinity over the centuries suggested to the local population that it was oceanic rather than lacustrine in nature. The littoral States have been engaged in negotiations for many years with respect to delimitation of the Caspian Sea 494, with a particular eye on the oil and gas resources that 492   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009 ; see Jon M. Van Dyke, “The Romania-Ukraine Decision and Its Effect on East Asian Maritime Delimitations”, in Van Dyke et al. (eds.), Governing Ocean Resources : New Challenges and Emerging Regimes : A Tribute to Judge Choon-Ho Park, op. cit., p. 43. 493   The surface of the Black Sea is approximately 436,000 square kilometres while the Caspian Sea is approximately 371,000 square kilometres. 494   See, e.g., Khagani Guliyev, “Quelques réflexions sur un possible règlement du différend maritime frontalier entre l’Azerbaïdjan et le Turkménistan en mer Caspienne”, Hague Yearbook of International Law, Vol. 27 (2014), p. 57.

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might be exploited from its seabed 495. In doing so, such States have not agreed to use the LOS Convention as an applicable source of law, though some States have called for doing so 496. While the Caspian Sea has numerous islands, disputes over the sovereignty of those islands do not appear to be a feature of the ongoing negotiations. There are, however, some disputes. Ukatnyy (or Ukatny) is an island in the northern Caspian Sea, near the eastern end of the mouth of the Volga River. The island is only about six kilometres by four kilometres, but it lies in an area that is very promising for offshore oil production. Both Kazakhstan and Russia lay claim to this island 497. There are various contemporary disputes about islands located in boundary lakes. For example, the island of Rukwanzi is claimed by both the Democratic Republic of the Congo and by Uganda, which are situated on opposite sides of Lake Albert. The two sides have occasionally had military skirmishes in the vicinity of the island, and have landed military units to occupy it 498. 495   See Michael P. Croissant and Bülent Aras (eds.), Oil and Geopolitics in the Caspian Sea Region, Praeger Publishers, 1999. 496   See, e.g., Position of Kazakhstan on the Legal Status of the Caspian Sea, UN doc. A/52/424 (3 October 1997), Appendix, p. 3 (“Kazakhstan’s position is that individual provisions of the United Nations Convention on the Law of the Sea of 1982 should be extended to the Caspian Sea and applied taking into account the specific features of the Caspian”). There is support for the proposition that the negotiators of the LOS Convention viewed the Caspian Sea as not falling within the Convention’s scope. See J. Ashley Roach and Robert W. Smith, “Caspian Seabed Boundaries”, in Colson and Smith, op. cit., p. 3537. 497   See Jamestown Foundation, “Moscow’s Caspian Claim Built on Shifting Sands”, Monitor, Vol. 7 (20 February 2001), available at : http ://www.jamestown.org/single/ ?no_cache=1& tx_ttnews%5Btt_news%5D=22820#.V4d8u15ByJe. 498   Wafula Okumu, “Resources and Border Disputes in Eastern Africa”, Journal of Eastern African Studies, Vol. 4 (2010), p. 279 at p. 289.

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In some instances, there is no dispute about the location of the boundary between the two States through the lake, and the question is simply whether the island falls on one side of the boundary or the other. Undertaking an accurate survey might serve to resolve the dispute. For example, the very small island of Migingo (about 2,000 square metres), located in the eastern part of Lake Victoria, is claimed by both Kenya and Uganda. Increased use of the island for fishing activity has led to conflict and even military confrontation. Both States appear to acknowledge as controlling a 1926 British Order in Council that appears to suggest a border segment that falls to the west of Migingo by a few hundred metres, thereby placing it wholly within Kenya’s borders. Yet conducting a joint and authoritative survey has proven problematic and the dispute remains ongoing 499. In other instances, the lake boundary is disputed and the island is relevant for purposes of deciding the location of the boundary. Since the LOS Convention does not apply to such issues, are there any other rules of international law that are relevant ? At one time, some writers argued that boundary lakes should be treated just like the high seas, finding that a direct connection with the ocean was irrelevant, or should be treated as part of a special regime associated with boundary lakes 500. Yet States, through their practice, and contemporary publicists view boundary lakes as part of the territory of the littoral States, with the only issue being where to draw the boundary line or lines among the States concerned. Thus, 499   Oduntan, International Law and Boundary Disputes in Africa, op. cit., pp. 159-160 ; Christopher R. Rossi, “The Migingo Island Dispute between Kenya and Uganda”, Brooklyn Journal of International Law, Vol. 42 (2016), available at : https :// papers.ssrn.com/sol3/papers.cfm ?abstract_id=2819216. 500   See, e.g., Harry E. Hunt, “How the Great Lakes Became ‘High Seas’, and Their Status Viewed from the Standpoint of International Law”, American Journal of International Law, Vol. 4 (1910), p. 285.

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in Land and Maritime Boundary between Cameroon and Nigeria, neither Cameroon nor Nigeria argued that Lake Chad was an area held in common by the littoral States ; rather, they argued over their territorial boundary in the lake, which the Court decided in accordance with colonial-era agreements 501. In drawing such a line or lines, the presence of an island in the boundary lake may complicate matters. One possibility is to ignore the presence of any islands and to draw the boundary based on a particular method (e.g., an equidistance line), and then assign sovereignty over the island to the State on whose side of the boundary the island is located. Another possibility is to determine which State is sovereign over the island and then to draw the boundary based on a particular method that takes into account the presence of the island. Other factors, of course, may also be relevant, such as issues of navigation, fishing, or water consumption. There is no rule of international law requiring that the boundary be drawn by a particular method. Even so, there are some rules that appear relevant. First, if the States involved can reach agreement on delimitation of the boundary, whether taking the island into account or not, then that agreement prevails. Second, as was the case for the Benin/Niger Frontier Dispute with respect to islands in a boundary river, in many situations the principle of uti possedetis or the existence of effectivitiés will feature. The island may then be relevant if it was allocated to one colonial unit or another, or if acts of governance were exercised with respect to the island in the colonial or post-colonial period. If that is not the case, then, third, a principle of equitable distribution of the waters of the lake among the littoral 501   Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), ICJ Reports 2002, p. 454, para. 325 (I).

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States will likely guide either the negotiations between the States or any other form of dispute settlement. Here, the island may be important to the extent that it affects navigational interests on the lake or serves as a location for fishing. Finally, it is likely that, in the absence of other factors, it will be seen as appropriate to set the boundary along a median line of the lake (measured from opposite shores) or along the thalweg of the lake, with the island either being ignored or being used as a basis for helping to identify the median line or thalweg 502. If the island is ignored and the median line passes through it, there is support for the proposition that the island should be allocated “to the State on whose side the larger part lay” 503. D. Conclusion As discussed in this chapter, islands can be found in rivers and lakes that serve as boundaries between two States and, when this happens, disputes may arise as to sovereignty over the island or the relevance of the island for delimiting the boundary. The methods of securing title over an island that were discussed in Chapter IV are largely applicable in this situation as well. Yet some special problems, rules, and methods may come into play that are unique to islands found in rivers and lakes. Having addressed such matters, albeit briefly, the next chapter returns to islands at sea, this time considering in greater detail their relation to maritime zones under the law of the sea.

502 503

  See Jayewardene, op. cit., pp. 239-258.   Ibid., p. 244.

CHAPTER VI

ISLANDS IN RELATION TO MARITIME ZONES As noted in Chapter III, when an island exists, it is capable of generating maritime zones, which can provide considerable benefits to the State that is sovereign over the island504. Once the baselines of the island are determined, Article 121, paragraph 2, of the 1982 LOS Convention provides : “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.” Thus, normally islands are capable of generating the full range of maritime zones accorded to continental features, with the exception of “rocks” falling within the scope of Article 121, paragraph 3, which may only generate a territorial sea and a contiguous zone. The size of an island is not relevant when considering whether it can generate a territorial sea or a contiguous zone. The International Court has stated on several occasions that “even the smallest island generates a 12‑nautical‑mile territorial sea” 505. 504   See John Briscoe and Peter Prows, “The Role of Islands in the Generation of Boundaries at Sea”, in Schofield, Lee and Kwon (eds.), op. cit., p. 79. See generally Symmons, The Maritime Zones of Islands in International Law, op. cit. ; Clive R. Symmons, “Maritime Zones from Islands and Rocks”, in Jayakumar, Koh and Beckman (eds.), op. cit., p. 55. 505   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 644, para. 36 ; see also Maritime

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The following discussion seeks to highlight important aspects of maritime zones that are specific to islands and low-tide elevations. Yet, for the sake of completeness, the discussion also recounts some of the basic rules relating to maritime zones that are important for, but not unique to, islands. A.  Baselines and Internal Waters of a Mainland in Relation to Nearby Islands or Low-tide Elevations 1.  Normal baselines and low-tide elevations The starting point for establishing maritime zones with respect to any land territory are the “baselines”, which both demarcate the territory’s internal waters from the sea and provide the lines from which the outer limits of the territory’s maritime zones will be measured. LOS Convention Article 5 provides that “the normal baseline for measuring the breadth of the territorial sea is the lowwater line along the coast as marked on large-scale charts officially recognized by the coastal State” 506. Further, LOS Convention Article 13, paragraph 1, provides that where “a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 101-102, para. 205 ; Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 751, para. 302. See Tullio Treves, “Maritime Delimitation and Offshore Features”, in Jayakumar, Koh and Beckman (eds.), op. cit., p. 121. 506   LOS Convention, Art. 5 ; see also Convention on the Territorial Sea and the Contiguous Zone, Art. 3. For analysis on how best to interpret Article 5, as well as associated State practice, case law and scholarly writings, see International Law Association, Committee on Baselines under the International Law of the Sea, Report, Sofia Conference, op. cit., pp. 7-24.

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line on that elevation may be used as the baseline for measuring the breadth of the territorial sea” 507. In such a situation, the low-tide elevation has the effect of extending the territorial sea further outward than would be the case if the normal baseline was drawn solely using the mainland. By contrast, a low-tide elevation located outside the territorial sea has no such effect. In the Qatar v. Bahrain case, the International Court stressed that “the low-water line of a low-tide elevation may be used as the baseline for measuring the breadth of the territorial sea if it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. If a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea, it has no territorial sea of its own.” 508 In short, to be used to extend the territorial sea, “some part of the feature must be above water at low tide as defined by the low-water datum” and some “drying part of the feature as defined by its low-water line must also be within the territorial sea generated from the nearest 509 mainland or island”  . The International Court has 507   LOS Convention, Art. 13 (1) ; see also Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 641, para. 26 (“low‑tide elevations within the territorial sea may be taken into account for the purpose of measuring the breadth of the territorial sea”). 508   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 100-101, para. 201. 509   International Law Association, Committee on Baselines under the International Law of the Sea, Report, Sofia Conference, op. cit., p. 24. See Gilbert Guillaume, “Les hautsfonds découvrants en droit international”, in D. H. Anderson et al., La mer et son droit : Mélanges offerts à Laurent Lucchini et Jean-Pierre Quéneudec, Editions A. Pedone, 2003, p. 287.

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found that Article 13 “reflects customary international law” 510. One issue that has arisen is whether a low-tide elevation located in a territorial sea is also capable of being appropriated as “territory” in its own right, just like an island. If the latter is true, then like any land territory the low-tide elevation would generate its own territorial sea, which extends outward and that could potentially encompass a second low-tide elevation located outside the mainland territorial sea. That low-tide elevation could in turn be used to generate its own territorial sea capable of extending to yet a third low-tide elevation, thus “leap-frogging” outward from low-tide elevation to low-tide elevation. In the Qatar v. Bahrain case, however, the International Court rejected such “leap-frogging”, saying that lowtide elevations cannot be appropriated as “territory”, and stressing the differences between islands and lowtide elevations under the LOS Convention. Among other things, it stated : “205.  International treaty law is silent on the question whether low tide elevations can be considered to be ‘territory’. Nor is the Court aware of a uniform and widespread State practice which might have given rise to a customary rule which unequivocally permits or excludes appropriation of low-tide elevations. It is only in the context of the law of the sea that a number of permissive rules have been established with regard to low-tide elevations which are situated at a relatively short distance from a coast. 510   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 693, para. 182 ; Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 100, para. 201. See J. Ashley Roach, “Today’s Customary International Law of the Sea”, Ocean Development & International Law, Vol. 45 (2014), p. 239 at p. 242.

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206.  The few existing rules do not justify a general assumption that low-tide elevations are territory in the same sense as islands. It has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition ; the difference in effects which the law of the sea attributes to islands and low-tide elevations is considerable. It is thus not established that in the absence of other rules and legal principles, low-tide elevations can, from the viewpoint of the acquisition of sovereignty, be fully assimilated with islands or other land territory. 207.  In this respect the Court recalls the rule that a low-tide elevation which is situated beyond the limits of the territorial sea does not have a territorial sea of its own. A low-tide elevation, therefore, as such does not generate the same rights as islands or other territory. Moreover, it is generally recognized and implicit in the words of the relevant provisions of the Conventions on the Law of the Sea that, whereas a low-tide elevation which is situated within the limits of the territorial sea may be used for the determination of its breadth, this does not hold for a low-tide elevation which is situated less than 12 nautical miles from that low-tide elevation but is beyond the limits of the territorial sea. The law of the sea does not in these circumstances allow application of the so-called ‘leapfrogging’ method. In this respect it is irrelevant whether the coastal State has treated such a low-tide elevation as its property and carried out some governmental acts with regard to it ; it does not generate a territorial sea.” 511 2.  Straight baselines and “fringing” islands The normal baseline works well for coasts that are relatively smooth, but is less useful when the coast 511   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 101-102, paras. 205-207.

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has extensive indentations. Further, the rule can be problematic when there are numerous off-shore features closely associated with the coast, such as small islands, reefs, or low-tide elevations ; using normal baselines in such circumstances can sometimes result in very erratic and confusing outer limits of the territorial sea. Consequently, in the 1958 Convention on the Territorial Sea and the Contiguous Zone, and carried forward in the LOS Convention, there exist special rules for drawing a series of lines using the outermost points along the coast known as “straight baselines” 512. LOS Convention Article 7, paragraph 1, states : “In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.” 513 Thus, “fringing” islands can be used instead of the coast to create a more regular baseline from which maritime zones may be measured. When drawing such a line, “account may be taken . . . of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage” 514. 512   Convention on the Territorial Sea and the Contiguous Zone, Art. 4 ; LOS Convention, Art. 7. See International Law Association, Committee on Baselines under the International Law of the Sea, Report, Washington Conference (2014), pp. 318, available at : http ://www.ila-hq.org/index.php/committees; see also W. Michael Reisman and Gayl S. Westerman, Straight Baselines in International Maritime Boundary Delimitation, Palgrave Macmillan, 1992. 513   LOS Convention, Art. 7 (1) (emphasis added). See Convention on the Territorial Sea and the Contiguous Zone, Art. 4 (1). 514   LOS Convention, Art. 7 (5). See Convention on the Territorial Sea and the Contiguous Zone, Art. 4 (4).

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This regime of straight baselines was developed in the 1951 Fisheries case between the United Kingdom and Norway 515, which concerned whether Norway could use straight baselines connecting the most seaward points of islands and other features off its highly irregular coast. Not only is Norway’s coast highly indented, but it has some 120,000 islands, rocks and reefs off the coast, referred to as a “skjærgård” or “rock rampart”. The International Court found that the method of drawing baselines used by Norway was not contrary to international law, noting that if one accepts the ability to draw a line across bays, it logically follows that use of straight baselines to cope with other irregularities is appropriate : “It has been contended, on behalf of the United Kingdom, that Norway may draw straight lines only across bays. The Court is unable to share this view. If the belt of territorial waters must follow the outer line of the ‘skjærgaard’, and if the method of straight baselines must be admitted in certain cases, there is no valid reason to draw them only across bays, as in Eastern Finnmark, and not also to draw them between islands, islets and rocks, across the sea areas separating them, even when such areas do not fall within the conception of a bay. It is sufficient that they should be situated between the island formations of the ‘skjærgaard’, inter fauces terrarum.” 516 At the same time, the Court indicated some ways in which the drawing of straight baselines was limited, which influenced the drafting of both the 1958 Convention on the Territorial Sea and the Contiguous Zone and the 1982 LOS Convention. The LOS Convention provides that these straight baselines “must not depart to any 515   Fisheries (United Kingdom v. Norway), Judgment of 18 December 1951, ICJ Reports 1951, p. 116. 516   Op. cit. supra, footnote 515, p. 130.

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appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the régime of internal waters” 517. Further, the line should not be drawn “in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone” 518. While States may have considerable latitude when drawing straight baselines, the Court in the 1951 Fisheries case indicated that : “The delimitation of sea areas has always an international aspect ; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law.” 519 Thus, the concept of a “fringe” of islands is not entirely malleable ; it appears to apply only to situations where there are small islands in very close proximity to the coast. Disputes have arisen when States seek to use the concept more broadly. For example, Canada’s 1985 claim that it could draw straight baselines around its Arctic islands so as to enclose as internal waters the “Northwest Passage” (referred to by Canada as the “Canadian Northwest Passage”) 520 elicited protests from 517   LOS Convention, Art. 7 (3). See Convention on the Territorial Sea and the Contiguous Zone, Art. 4 (2). 518   LOS Convention, Art. 7 (6). See Convention on the Territorial Sea and the Contiguous Zone, Art. 4 (5). 519   See Fisheries (United Kingdom v. Norway), ICJ Reports 1951, p. 132 ; see also Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 103-104, paras. 212-215 (stating that the method of straight baselines under LOS Convention Article 7 “must be applied restrictively”). For example, although not expressly stated in the LOS Convention, the United States has maintained that a straight baseline may not exceed 24 nautical miles, and has protested straight baselines of other States in that regard. 520   For an analysis of Canada’s claim, which considers not just a straight baseline approach but also an historic waters approach or a sector theory, see Donat Pharand, Canada’s Arctic Waters in International Law, Cambridge University Press, 2009 ; see also Donat Pharand, “Canada’s Sovereignty over the

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both the United States and the European Community 521. In the Qatar v. Bahrain case, Bahrain had sought to draw straight baselines around certain islands off of its coast, in part based on a theory that it was essentially a multipleisland State entitled to such baselines. The Court stated : “213. The fact that a State considers itself a multiple-island State or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met. The coasts of Bahrain’s main islands do not form a deeply indented coast, nor does Bahrain claim this. It contends, however, that the maritime features off the coast of the main islands may be assimilated to a fringe of islands which constitute a whole with the mainland. 214. The Court does not deny that the maritime features east of Bahrain’s main islands are part of the overall geographical configuration ; it would be going too far, however, to qualify them as a fringe of islands along the coast. The islands concerned are relatively small in number. Moreover, in the present case it is only possible to speak of a ‘cluster of islands’ or an ‘island system’ if Bahrain’s main islands are included in that concept. In such a situation, the method of Northwest Passage”, Michigan Journal of International Law, Vol. 10 (1989), p. 653. 521   See United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “United States Responses to Excessive National Maritime Claims”, Limits in the Seas, No. 112 (9 March 1992), pp. 2930, op. cit. ; see also The White House Office of the Press Secretary, Arctic Region Policy, National Security Presidential Directive 66/Homeland Security Presidential Directive 25 (9 January 2009), sec. III (B) (5), available at : https ://www.hsdl. org/ ?view&did=232474 (“The Northwest Passage is a strait used for international navigation, and the Northern Sea Route includes straits used for international navigation ; the regime of transit passage applies to passage through those straits”).

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straight baselines is applicable only if the State has declared itself to be an archipelagic State under Part IV of the 1982 Convention on the Law of the Sea, which is not true of Bahrain in this case. 215.  The Court, therefore, concludes that Bahrain is not entitled to apply the method of straight baselines. Thus each maritime feature has its own effect for the determination of the baselines . . .” 522 3.  Straight baselines and low-tide elevations Straight baselines may be drawn not just from the mainland to fringing islands, but also from the mainland to low-tide elevations. Unlike the use of lowtide elevations when drawing a normal baseline under LOS Convention Article 13, there is no requirement that a low-tide elevation used for a straight baseline be in the territorial sea. But, under the LOS Convention Article 7, “[s]traight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them” or where doing so has “received general international recognition” 523. Further, the same limitations discussed in the prior section on the drawing of straight baselines to fringing islands (not departing appreciably from the general direction of the coast, enclosing only sea areas linked closely to the land domain, not cutting off the territorial sea of another State) apply in this context as well 524. 522   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 103-104, paras. 213-215. 523   LOS Convention, Art. 7 (4). Although there existed an analogous provision in the 1958 Convention, the second element concerning “general international recognition” was not included therein. See Convention on the Territorial Sea and the Contiguous Zone, Art. 4 (3). 524   See International Law Association, Committee on Baselines under the International Law of the Sea, Report, Johannes-

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4.  Bay closing lines and islands within bays Islands are also important in the context of drawing closing lines across bays, meaning a penetration of the coast that creates a “land-locked” body of water 525. Various terms have been used to describe such a penetration, including “sound”, “gulf”, or “fjord”, but “bay” is the term used in the LOS Convention. Under the Convention, a State may draw a bay closing line, provided that the line encloses waters that are as large (or larger) than a semi-circle whose diameter is the line closing the bay 526, and provided that the line does not exceed 24 nautical miles 527. Islands are often present within bays and the channels between them can create multiple potential entrances to the bay. This raises the question of whether a State can assert that there is more than one mouth to the bay, allowing the State to construct a series of separate closing lines, which in their totality extend well beyond 24 nautical miles in total length. To address this issue, Article 10, paragraph 3, of the LOS Convention provides : “For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water mark of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. burg Conference (2016), pp. 12-15, available at : http ://www. ila-hq.org/index.php/committees. 525   LOS Convention, Art. 10 (2) ; see also Convention on the Territorial Sea and the Contiguous Zone, Art. 7. See generally Gayl S. Westerman, The Juridical Bay, Clarendon Press, 1987. 526   LOS Convention, Art. 10 (2). 527   Ibid., Art. 10 (4). See International Law Association, Committee on Baselines under the International Law of the Sea, Report, Johannesburg Conference, op. cit., pp. 6-12.

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Islands within an indentation shall be included as if they were part of the water area of the indentation.” 528 In other words, while the closing line can be drawn so as to connect the natural entrance points of the “multimouthed” bay to the island or islands located within the mouth of the indentation, it is still the case that total length of those lines across the water must satisfy the requirements for the closing line of a bay. By only counting distances across the water, the ability of the State to satisfy the semi-circle test is improved. Further, given the second sentence of Article 10, paragraph 3, islands located inside the indentation are treated as though they are water for purposes of the semi-circle test, again improving the ability of the State to satisfy the semi-circle test. The justification for doing so lies in a belief that the presence of the islands merits allowing the State to close off waters that might otherwise not qualify as a bay. In drafting this provision in 1956, the International Law Commission said that its “intention was to indicate that the presence of islands at the mouth of an indentation tends to link it more closely to the mainland, and this consideration may justify some alteration in the ratio between the width and the penetration of the indentation. In such a case an indentation which, if it had no islands at its mouth, would not fulfil the necessary conditions, is to be recognized as a bay.” 529 The rule on islands in bays has proved generally acceptable, though its application in some circumstances can present problems, depending on the number and location of the islands in what would normally be the closing line between the headlands of the bay 530.   LOS Convention, Art. 10 (3).   Articles concerning the Law of the Sea, op. cit., Commentary to Art. 7, p. 269, para. 2. 530   For a discussion, see Jayewardene, op. cit., pp. 33-40. 528 529

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5.  Internal waters Once the baselines are drawn, they demarcate not only the zones established by the law of the sea that span outward from the mainland, but also the “internal waters”, which are all waters on the landward side of the baseline. LOS Convention Article 8, paragraph 1, states that, “waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State” 531. Under international law, a State’s sovereignty over its land territory extends to all of its internal waters, including bays and areas of water wholly enclosed by its land territory (such as lakes and rivers). The law of the sea does not seek to regulate a State’s internal waters, though it includes a right of innocent passage through waters enclosed by a straight baseline that previously had not been considered internal waters 532. Thus, international law provides no general right for foreign vessels to enter a State’s internal waters though typically, as a practical matter, international ports are presumed to be open to ocean-going vessels absent any contrary statement by the port State. B.  Baselines and Internal Waters of an Island Not Part of a Fringe of Islands along a Mainland An island that is not part of a fringe of islands or located in a bay of a mainland is entitled to baselines drawn according to the rules applicable to normal baselines (and, as applicable, straight baselines) of a mainland. Thus, the normal baseline of an island is the low-water line along the coast, but if it is heavily indented, or if the island has its own fringe of islands, these may be used to   LOS Convention, Art. 8 (1).   Ibid., Art. 8 (2). See International Law Association, Committee on Baselines under the International Law of the Sea, Report, Johannesburg Conference, op. cit., pp. 4-6. 531 532

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establish straight baselines in the same manner as for any mainland territory. Likewise, the rules relating to bays also apply for the island, as do rules relating to historic bays or titles within the territorial sea of the island. An island situated on an atoll or that has a fringing reef is regarded as having a special relationship with the reef and with the waters found between the reef and the island. The reef provides protection to the island from the powerful force of the sea, while the waters, sometimes in the form of a lagoon or a channel, are typically rich in marine life 533. Moreover, it is difficult for vessels to navigate in such waters in the normal course of transit, such that passage rights are inappropriate. For these reasons, the LOS Convention developed a special rule allowing such waters to be enclosed by a baseline 534. Article 6 of the LOS Convention provides : “In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward lowwater line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State.” 535 Thus, the low-water line of the reef is the normal baseline for measuring the territorial sea of the island and there is no requirement that the reef itself be above water at high tide. Moreover, unlike low-tide elevations under 533   See Ian Kawaley, “Delimitation of Islands Fringed with Reefs : Article 6 of the 1982 Law of the Sea Convention”, International and Comparative Law Quarterly, Vol. 41 (1992), p. 152 at p. 153. 534   See P. B. Beazley, “Reefs and the 1982 Convention on the Law of the Sea”, International Journal of Estuarine and Coastal Law, Vol. 6 (1991), p. 281. 535   LOS Convention, Art. 6. The 1958 Convention on the Territorial Sea and the Contiguous Zone contained no such rule.

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LOS Convention Article 13, the reef need not be within the territorial sea nor any particular distance from the island 536. C.  Islands and the Territorial Sea 1.  No maritime zones for low-tide elevations Low-tide elevations, on their own, do not have the ability to generate maritime zones, such as a territorial sea. When a low-tide elevation is located within the territorial sea of a mainland or an island, it may be used as the baseline for measuring the breadth of the territorial sea for that mainland or island 537. Yet when it is situated outside the territorial sea of a mainland or island, the low-tide elevation has no territorial sea of its own 538. As previously noted, pursuant to Article 7 of the LOS Convention, certain low-tide elevations in the vicinity of the coast can be used to draw straight baselines for that coast 539, and in that sense low-tide elevations may also be relevant when establishing maritime zones. Yet a lowtide elevation standing alone (in other words, not in the vicinity of the coast of a mainland or island), is incapable of generating or supporting normal or straight baselines. As such, it is impermissible to measure a territorial sea, exclusive economic zone, or continental shelf from a low-tide elevation in the absence of close proximity to a mainland or island 540. 536   International Law Association, Committee on Baselines under the International Law of the Sea, Report, Washington Conference, op. cit., p. 25. 537   LOS Convention, Art. 13 (1). 538   Ibid., Art. 13 (1). 539   Ibid., Art. 7 (4). 540   See The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 132, para. 308.

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2.  Entitlement of islands to a territorial sea Prior to codification of the law of the sea, some disagreement existed as to whether islands were entitled to a belt of territorial sea, with some arguing that the island must be inhabited to support such an entitlement. Various precedents, however, such as the influential 1805 Anna case 541, over time confirmed that all islands were entitled to a territorial sea. The League of Nations codification conference, convened in The Hague in 1930 to consider, inter alia, the law on territorial waters, was unable to produce a treaty, but a “Basis for Discussion” that “each island has its own territorial waters” was 542 generally accepted  . That proposal influenced the development by the UN International Law Commission in 1956 of its draft articles concerning the territorial sea, which provided in Article 10 that : “Every island has its own territorial sea.” 543 In its commentary to this provision, the Commission noted : “This article applies both to islands situated in the high seas and to islands situated in the territorial sea. In the case of the latter, their own territorial sea will partly coincide with the territorial sea of the mainland. The presence of the island will create a bulge in the outer limit of the territorial sea of the mainland. The same idea can be expressed in the following form : islands, wholly or partly situated in the territorial sea, shall be taken into consideration in determining the outer limit of the territorial sea.” 544   The Anna (1805) 5 C. Rob. 373, High Court of Admiralty.   League of Nations, Conference for the Codification of International Law, Bases of Discussion for the Conference Drawn up by the Preparatory Committee, Vol. II (1929), Doc. C.74 M.39, p. 48. 543   Articles concerning the Law of the Sea, op. cit., Art. 10, p. 270. 544   Ibid., Commentary to Art. 10, para. 1. 541 542

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The 1958 Convention on the Territorial Sea and Continental Shelf, in turn, defined an island as “a naturally formed area of land surrounded by water, which is above water at high tide”, and then provided that : “The territorial sea of an island is measured in accordance with the provisions of these articles.” 545 Thus, an island was to receive a territorial sea just as would any land territory. The 1958 Convention did not identify the width of the territorial sea, but the 1982 LOS Convention provided that the territorial sea could extend up to 12 nautical miles from the baselines 546. Further, Article 121, paragraph 2, confirms that islands are entitled to a territorial sea “in accordance with the provisions of this Convention applicable to other land territory” 547. Thus, as stated in the LOS Convention and confirmed in subsequent case law 548, a sovereign State may claim a territorial sea surrounding any island up to a distance of 12 nautical miles, whether it is situated in the State’s mainland territorial sea or in the high seas. If the island is located close to the State’s mainland, it has the effect of “bumping out” the State’s territorial sea through the addition of the island’s territorial sea. Thus, an island located 24 nautical miles from the mainland could have the effect of extending a territorial sea 36 nautical miles from the mainland, as the mainland’s territorial sea joins up with the territorial sea surrounding the island. While there is a right under the LOS Convention to claim a 12-nautical-mile territorial sea, in many locations 545   Convention on the Territorial Sea and the Contiguous Zone, Art. 10. 546   LOS Convention, Art. 3. 547   Ibid., Art. 121 (2). 548   See Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 690, para. 177 ; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar) (Case No. 16), Judgment of 14 March 2012, ITLOS Reports 2012, p. 4 at p. 51, para. 169 ; Dubai-Sharjah Border Arbitration, International Law Reports, Vol. 91 (1981), p. 543.

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where an island is in close proximity to another State’s territory, States have sometimes refrained from making a full claim. Instead, some lesser claim, such as to a 3- or 6-nautical-mile territorial sea may be made. Examples include Venezuela’s claim to a 3-nautical-mile territorial sea around the small Isla Patos in the Gulf of Paria near Trinidad and Tobago’s island of Trinidad, and the claim of the United Arab Emirates (Abu Dhabi) to a 3-nauticalmile territorial sea around Dayyīnah Island located near Qatar. Likewise, a lesser claim may be made where there exists a cluster of islands, such that a full claim would result in a significant enclosure of a highly-transited sea. Such is the case with respect to Greece and its many islands scattered throughout the Aegean Sea, though Greece has asserted a right to declare in the future a 12-nautical-mile territorial sea if it wishes to do so 549. Were it to do so, it is estimated that it would increase the waters in the Aegean Sea under Greek sovereignty from approximately one-third to two-thirds 550. 3.  Rights and obligations in an island’s territorial sea The rights and obligations of the State that is sovereign over the island are no different in the island’s territorial sea than they are for any other territorial sea. The coastal State has sovereignty within the island’s territorial sea, sovereignty that extends not just to the waters, but also to the airspace above the waters and to the seabed and subsoil below the waters 551. This extension of sovereignty means that the State can control activities in the territorial sea largely in the same manner as it controls activities in its internal waters or on the island itself. 549   Krateros M. Ioannou, “The Greek Territorial Sea”, in Kariotis (ed.), op. cit., p. 115 at p. 130. 550   George P. Politakis, “The Aegean Dispute in the 1990s : Naval Aspects of the New Law of the Sea Convention”, in Kariotis, op. cit., p. 291 at p. 294. 551   LOS Convention, Art. 2 (1)-(2).

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Yet, while the State has extensive control over the island’s territorial sea, the LOS Convention places some key limitations on the exercise of that sovereignty, just as it does for any territorial sea. Among other things, the coastal State may not hamper vessels engaged in “innocent passage” except as permitted under the Convention 552. Further, the coastal State has duties to foreign vessels which enter the territorial sea, such as to mark channels, keep navigable waters clear, and provide rescue services 553. D.  Islands and the Contiguous Zone Prior to the modern codification of the law of the sea, some States claimed a jurisdictional zone outside their territorial sea 554, usually for customs and security purposes, while other States contested such zones. The 1958 Convention acknowledged the ability of a State to declare such a zone 555, but it did not expressly indicate that contiguous zones could be established with respect to islands (even though, as noted above, it did expressly state as much with respect to the territorial sea). Given that the contiguous zone is designed to help enforce laws applicable in a State’s territory, including its territorial sea, it would seem obvious that islands should also be entitled to a contiguous zone. The 1982 LOS Convention, in Article 121, paragraph 2, makes clear that islands are so entitled.   LOS Convention, Art. 24 (1).   Ibid., Arts. 22 (1), 24 (2) ; see Fisheries Jurisdiction (United Kingdom v. Iceland), Judgment of 2 February 1973, separate opinion of Judge Fitzmaurice, ICJ Reports 1973, p. 24, at p. 28 n. 8. 554   See, e.g., William E. Masterson, Jurisdiction in Marginal Seas : With Special Reference to Smuggling, Macmillan, 1929. 555   Convention on the Territorial Sea and the Contiguous Zone, Art. 24. 552 553

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Under LOS Convention Article 33, a coastal state may declare a contiguous zone extending no more than 24 nautical miles from the baselines and, within it, may exercise the control necessary : (1) to “prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea” ; or (2) to “punish infringement of [those] laws and regulations committed within its territory or territorial sea”. Thus, a coastal State may undertake enforcement action against vessels in the contiguous zone around an island to punish or prevent infringements of a certain limited set of laws and regulations within the territory or territorial sea of the island, but not for such infringements occurring in the contiguous zone itself. The enforcement action may include stopping and boarding the vessel, and seizing the vessel and bringing it into port if evidence of an offence or likely offence is uncovered 556. States are not obligated to declare a contiguous zone. Indeed, only about one-half of all States have declared such zones 557. E.  Islands and the Exclusive Economic Zone As discussed in Chapter III, under LOS Convention Article 121, paragraph 2, sovereignty over an island that does not fall within paragraph 3 permits the State to claim an exclusive economic zone. Thus, not all islands are capable of generating such a zone ; “paragraph 3 rocks” do not do so 558. If the island is not a “paragraph 3 rock”, 556   See generally A. V. Lowe, “The Development of the Concept of the Contiguous Zone”, British Yearbook of International Law, Vol. 52 (1981), p. 109. 557   Rothwell and Stephens, op. cit., p. 82 (indicating that 90 States claimed such a zone as of 2011) ; see also United Kingdom Hydrographic Office, “National Claims to Maritime Jurisdiction”, available at : https ://www.admiralty.co.uk/Annual Nms/12.pdf. 558   See Jon M. Van Dyke et al., “The Exclusive Economic Zone of the Northwestern Hawaiian Islands : When Do Un-

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the LOS Convention permits the State with sovereignty over the island to declare such a zone extending up to 200 nautical miles from the island’s baselines. Under Article 56, paragraph 1 (a), the coastal State has in the island’s exclusive economic zone “sovereign rights for the purpose of exploring and exploiting, conserving and managing” both the living and non-living natural resources of the seabed, its subsoil, and superadjacent waters (these rights in part duplicate the coastal State’s rights in the continental shelf). As such, the coastal State has extensive control over fishing activities in this zone. Moreover, Article 56, paragraph 1 (a) accords the coastal State sovereign rights with regard to other activities for economic exploitation and exploration of the zone, such as “the production of energy from the water, current and winds”. The coastal State also has jurisdiction in the zone over artificial islands, installations and structures, marine scientific research, and the protection and preservation of the marine environment 559. Other States, however, also have rights and freedoms in the island’s exclusive economic zone, which must be respected by the State possessing the island 560. Vessels of other States generally enjoy the same freedoms of navigation and overflight, and of the laying of submarine cables and pipelines, that they have on the high seas 561, inhabited Islands Generate an EEZ ?”, San Diego Law Review, Vol. 25 (1988), p. 425. 559   See LOS Convention, Art. 56 (1) (b) ; see also ibid., Arts. 60, 246. For scholarly treatment, see David J. Attard, The Exclusive Economic Zone in International Law, Clarendon Press, 1987 ; Francisco Orrego-Vicuña, The Exclusive Economic Zone : Regime and Legal Nature under International Law, Cambridge University Press, 1989 ; Robert C. Beckman and Clive H. Schofield, “Defining EEZ Claims from Islands : A Potential South China Sea Change”, International Journal of Marine and Coastal Law, Vol. 29 (2014), p. 193. 560   LOS Convention, Art. 56 (2). 561   Ibid., Arts. 58 (1), 87.

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but they do not enjoy such freedoms insofar as they would be contrary to the sovereign rights of the coastal State (e.g., freedoms of fishing or of construction of artificial islands). In exercising their rights in the zone, all States must have due regard to each other’s rights and duties 562. As noted above, coastal States under the LOS Convention are entitled to enact and enforce laws and regulations that conserve and manage the living resources in the exclusive economic zone 563, and other States Parties must comply with such laws and regulations 564. Further, all States Parties are obliged to take measures to prevent, reduce and control pollution of the marine environment 565. Relevant rights and obligations may also arise under other conventions, such as the Convention for the Protection of World Cultural and Natural Heritage, which calls upon States Parties to declare and protect areas of threatened species and plants of outstanding universal value 566, or the Convention on Biological Diversity, which seeks to protect not just terrestrial diversity but also “marine and other aquatic ecosystems and the ecological complexes of which they are part” 567. Given coastal States’ jurisdiction with respect to protection of the marine environment, some States have established marine protected areas, where special rules operate that, for example, protect vulnerable ecosystems from overfishing, discharges from ocean-going vessels,   LOS Convention, Arts. 56 (2), 58 (3).   Ibid., Arts. 56 (1) (a) and 73 (1). 564   Ibid., Art. 58 (3). 565   Ibid., Art. 194. 566   Convention for the Protection of World Cultural and Natural Heritage, done at Paris on 16 November 1972, United Nations, Treaty Series, Vol. 1037, p. 151, Art. 2. 567   Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, United Nations, Treaty Series, Vol. 1760, p. 79, Art. 2. 562 563

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and harmful extractive activities 568. Marine protected areas can and have been established off mainland coasts, but many such areas also have been designated adjacent to islands or island groups, where especially rich and diverse species may be found. For example, in 2012 the United States created the Papahānaumokuākea Marine National Monument surrounding a group of northwestern Hawaiian islands, which was expanded in 2016 to encompass more than 1.5 million square kilometres, including the waters around ten islands 569. Likewise, in 2014, the United States expanded a marine protected area known as the Pacific Remote Islands Marine National Monument, whose 1.2 million square kilometres encompass waters surrounding Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Palmyra Atoll, and Wake Island 570. Such monuments are closed to commercial fishing, dumping of wastes, and seabed extraction activities, but are open to recreational fishing of certain species in addition to navigation and other internationally lawful uses of the sea. Whether such marine protected areas are fully consistent with the LOS Convention might be debated with respect to particular features. In some instances, the maritime feature around which the protected area is 568   Tanaka, The International Law of the Sea, op. cit., pp. 346-356. 569   Cynthia Barnett, “Hawaii Is Now Home to an Ocean Reserve Twice the Size of Texas”, National Geographic, 6 August 2016, available at : http ://news.nationalgeographic. com/2016/08/obama-creates-world-s-largest-park-off-hawaii/. 570   Brian Clark Howard, “U.S. Creates Largest Protected Area in the World, 3X Larger than California”, National Geographic, 26 September 2014, available at : http ://news. nationalgeographic.com/news/2014/09/140924-pacificremote-islands-marine-monument-expansion-conservation/ ; see National Oceanic and Atmospheric Administration, “Marine National Monument Program : The Pacific Remote Islands Marine National Monument”, available at : http ://www.fpir. noaa.gov/MNM/mnm_prias.html.

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proclaimed is of a nature that it may qualify as a LOS Convention Article 121, paragraph 3, “rock”, such that it has no exclusive economic zone. Indeed, some features may even be low-tide elevations, and therefore incapable of generating any maritime zones. In such situations, the unilateral establishment of expansive marine protected areas might be commended for the overall objective, but it is in tension with the rights States enjoy on the high seas under the LOS Convention, and might inadvertently bolster the arguments of States seeking to establish rights to exploit marine resources in zones surrounding “rocks” and even low-tide elevations 571. Consequently, proposals at times are advanced for bilateral, regional or global co-operation, rather than unilateral action, in the establishment of marine protected areas when disputes exist as to sovereignty over or the nature of the feature 572. F.  Islands and the Continental Shelf The seabed that slopes away from land territory is often rich in natural resources, including oil, natural gas, and certain minerals. The ability to extract such resources led US President Harry Truman, in 1945, to issue a proclamation declaring that the United States regarded “the natural resources of the subsoil and sea bed of the 571   See Bernard H. Oxman, “The Territorial Temptation : A Siren Song at Sea”, American Journal of International Law, Vol. 100 (2006), p. 830. 572   See, e.g., Hai Dang Vu, “A Bilateral Network of Marine Protected Areas between Vietnam and China : An Alternative to the Chinese Unilateral Fishing Ban in the South China Sea ?”, Ocean Development and International Law, Vol. 44 (2013), p. 145 ; John W. McManus, Kwang-Tsao Shao and Szu-Yin Lin, “Toward Establishing a Spratly Islands International Marine Peace Park : Ecological Importance and Supportive Collaborative Activities with an Emphasis on the Role of Taiwan”, Ocean Development and International Law, Vol. 41 (2010), p. 270.

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continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control” 573. Thereafter, several other States advanced similar claims. By the time the first Law of the Sea Conference was held, States were prepared to codify the existence of a continental shelf regime, which took the form of the 1958 Convention on the Continental Shelf 574. Article 1 (a) of that Convention defines the continental shelf as referring “to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas” 575. Moreover, Article 1 (b) states that the continental shelf includes “the seabed and subsoil of similar submarine areas adjacent to the coasts of islands” 576. Indeed, it was important to States possessing islands that the 1958 Convention expressly provide that “islands” would receive the benefits of the continental shelf regime 577. At the same time, the Convention does not define what is 573   Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, Proclamation No. 2667 of 28 September 1945, 10 Fed. Reg. 12,303 (2 October 1945). 574   Convention on the Continental Shelf, done at Geneva on 29 April 1958, United Nations, Treaty Series, Vol. 499, p. 311. 575   Convention on the Continental Shelf, Art. 1 (a). 576   Ibid., Art. 1 (b) (emphasis added). 577   The International Law Commission’s 1956 Articles on the Law of the Sea did not include the provision that became Article 1 (b) of the Convention on the Continental Shelf. In its commentary to the 1956 Articles, however, the Commission indicated : “The term ‘continental shelf’ does not imply that it refers exclusively to continents in the current connotation of that word. It also covers the submarine areas contiguous

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meant by an “island”. Read in conjunction with the 1958 Convention on the Territorial Sea and the Contiguous Zone, it would seem that an “island” is “a naturally formed area of land, surrounded by water, which is above water at high tide” 578 for purposes of both conventions, without any qualification as to the nature of the island. Under LOS Convention Article 121, paragraph 2, sovereignty over an island that does not fall within paragraph 3 also permits the State Party to assert rights with respect to the island’s continental shelf. In the LOS Convention, the “continental shelf” is legally defined as comprising “the seabed and subsoil of the submarine areas that extend beyond” the coastal State’s “territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin” 579. Moreover, if that natural prolongation falls short of 200 nautical miles from the baselines, the legal continental shelf includes the seabed out to 200 nautical miles from the baselines. (In other words, a State Party is always entitled to a “continental shelf” extending out to 200 nautical miles from its baselines regardless of the geological circumstances.) Like a mainland, an island’s continental shelf might extend beyond 200 nautical miles from the baselines, depending on the shape, composition and depth of the sea floor 580. When this occurs, the coastal State’s legal continental shelf may continue until the natural prolongation ends, but under no circumstances may it exceed the greater of 350 nautical miles from the baselines, or to islands.” Articles concerning the Law of the Sea, op. cit., Commentary to Art. 67, p. 297, para. 10. 578   Convention on the Territorial Sea and the Contiguous Zone, Art. 10 (1). 579   See LOS Convention, Art. 76 (1). The International Court regards Article 76, paragraph 1, as reflecting customary international law. See Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 666, para. 118. 580   LOS Convention, Art. 76 (4).

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100 nautical miles beyond the 2,500 metre isobath (a line connecting the depth of 2,500 metres) 581. It is left to the State possessing the island, in the first instance, to delineate the outer limits of this extended continental shelf 582. The LOS Convention provides that a coastal State shall submit oceanographic information relevant to the limits of its continental shelf to a 21-person “Commission on the Limits of the Continental Shelf” established under Annex II of the Convention. The commission reviews the information and then makes recommendations to the State regarding the delineation of the outer limits of its continental shelf. If the State establishes the outer limits of its continental shelf on the basis of those recommendations, the limits are “final and binding” 583. The State possessing the island has sovereign rights with respect to the natural resources of the island’s continental shelf, and can exclude all other States from exploiting those resources 584. While the LOS Convention permits a State Party to claim a continental shelf extending beyond 200 nautical miles from its baselines (subject to the above-stated limits), it also sets forth a formula by which the State Party “shall make payments or contributions in kind in respect of the exploitation of the non-living resources” in those areas 585. Those payments are made to the LOS Convention’s International Seabed Authority for distribution “on the basis of equitable sharing criteria, taking into account the interests and 581  LOS Convention, Art. 76 (5). See generally Peter J. Cook and Chris M. Carlton (eds.), Continental Shelf Limits : The Scientific and Legal Interface, Oxford University Press, 2000. 582   LOS Convention, Art. 76 (7). 583   Ibid., Art. 76 (8), Annex II. The convention does not expressly indicate whether delimitations not based on the commission’s recommendations are to be regarded as invalid. 584   Ibid., Art. 77 (1)-(2). 585   Ibid., Art. 82 (1).

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needs of developing States, particularly the least developed and the land-locked among them” 586. G. Archipelagos An archipelago is a group of islands sharing a close relationship with one another. Some States are principally continental in nature, but have sovereignty over off-lying island groups. For example, Ecuador is sovereign over the Galapagos archipelago, Norway over the Svalbard archipelago, Denmark over the Faroe Islands 587, and India over the Andaman, Nicobar, and Lakshadweep island groups 588. Other States, such as the Philippines, Indonesia 589 or Vanuatu 590, are entirely archipelagic in nature, consisting solely of a group of islands or parts of islands. Prior to the codification of the law of the sea, such States were not accorded any special treatment with respect to maritime entitlements ; rather, each island within the group was treated as a single unit, capable   LOS Convention, Art. 82 (4).   See Arni Olafsson, “Some Aspects of the New Law of the Sea of Special Significance for the Small Nations of the North : The Faroese Case”, Nordisk Tidsskrift for International Ret, Vol. 54 (Fasc. 1-2, 1985), p. 59 ; Jørgen Albæk Jensen, “Faroe Islands”, in Max Planck Encyclopedia of Public International Law, Vol. III, op. cit., p. 1126. 588   See generally Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff, 2013 ; Godfrey Baldacchino and David Milne (eds.), The Case for NonSovereignty : Lessons from Sub-National Island Jurisdictions, Routledge, 2009 ; Nancy Barron, “Archipelagos and Archipelagic States under UNCLOS III : No Special Treatment for Hawaii”, Hastings International and Comparative Law Review, Vol. 4 (1981), p. 509. 589   Robert Cribb and Michele Ford, Indonesia beyond the Water’s Edge : Managing an Archipelagic State, Institute of Southeast Asian Studies, 2009. 590   See Sue Farran, “New Hebrides (Vanuatu)”, in Max Planck Encyclopedia of Public International Law, Vol. VII, op. cit., p. 654. 586 587

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individually of generating maritime zones. By the midtwentieth century, however, demands by archipelagic States for differential treatment increased. The decision in the Anglo-Norwegian Fisheries case 591, where the Court advanced views on principles and rules that justified drawing special baselines to account for coastal islands, provided some political impetus toward a special regime for mid-ocean archipelagos 592, as did the emergence from colonialism of several archipelagic States. Yet in its 1956 Articles on the Law of the Sea, the International Law Commission (like the 1930 Hague Conference on codification before it) was unable to come up with a proposal. In its commentary to Article 10 on islands the Commission stated : “The Commission had intended to follow up this article with a provision concerning groups of islands. Like The Hague Conference for the Codification of International Law of 1930, the Commission was unable to overcome the difficulties involved. The problem is singularly complicated by the different forms it takes in different archipelagos. The Commission was prevented from stating an opinion, not only by disagreement on the breadth of the territorial sea, but also by lack of technical information on the subject. It recognizes the importance of this question and hopes that if an international conference subsequently studies the proposed rules it will give attention to it.” 593 591   Fisheries (United Kingdom v. Norway), ICJ Reports 1951, pp. 129, 131-132. 592   See Jean-Yves Chérot, “Le droit de la mer dans l’Océan indien occidental : Les legislations des îles et archipels (Madagascar, Maurice, les Seychelles) en 1977”, Annuaire des Pays de l’Océan Indien, Vol. 4 (1977), p. 251 ; D. P. O’Connell, “Mid-Ocean Archipelagos in International Law,” British Yearbook of International Law, Vol. 45 (1971), p. 1. 593   Articles on the Law of the Sea, op. cit., Commentary to Art. 10, p. 270, para. 3.

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The first Law of the Sea Conference in 1958 also was unable to develop an acceptable solution for addressing groups of islands, due to the complexity of addressing how special baselines would be drawn and how the waters within those baselines would be characterized 594. Likewise, no progress on this issue was made at the Second Law of the Sea Conference in 1960. Not until the Third Law of the Sea Conference and the resulting 1982 LOS Convention was a regime developed 595 for addressing archipelagos  . An archipelago for purposes of the LOS Convention is a group of closely interrelated islands that “form an intrinsic geographical, economic and political entity, or which have been 596 historically regarded as such”  . This definition emphasizes a situation where the islands and maritime spaces have a close relationship justifying their treatment   See Jayewardene, op. cit., p. 123.   See Jorge R. Coquia, “Development of the Archipelagic Doctrine as a Recognized Principle of International Law”, Philippine Law Journal, Vol. 58 (1983), p. 13 ; Ahmed Laraba, “L’avènement d’une nouvelle categorie du droit international de la mer : L’Etat archipel”, Revue algérienne des sciences juridiques, économiques et politiques, Vol. 21 (1984), p. 7 ; Renaud Lattion, L’archipel en droit international, Lausanne, Editions Payot, 1984 ; Arturo M. Tolentino, “Archipelagos under the Convention on the Law of the Sea”, Far Eastern Law Review, Vol. 28 (1984), p. 1 ; L. L. Herman, “The Modern Concept of the Off–Lying Archipelago in International Law”, Canadian Yearbook of International Law, Vol. 23 (1985), p. 172 ; H. P. Rajan, “The Legal Regime of Archipelagos”, German Yearbook of International Law, Vol. 29 (1986), p. 137 ; United Nations, Law of the Sea : Archipelagic States : Legislative History of Part IV of the United Nations Convention on the Law of the Sea, 1990, Sales No. E.90.V.2 ; Mohamed Munavvar, Ocean States : Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff, 1995 ; Pancracio, Droit de la mer, op. cit., pp. 231-246 ; Kevin Baumert and Brian Melchior, “The Practice of Archipelagic States : A Study of Studies”, Ocean Development and International Law, Vol. 46 (2015), p. 60. 596   LOS Convention, Art. 46 (b). 594

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as a unit. Where a State is constituted wholly by an archipelago or archipelagoes and other islands, Part IV of the LOS Convention allows such an “archipelagic State” 597 (and only such a State) to draw “archipelagic baselines” around the State, joining the outermost points of its outermost islands or drying reefs 598 rather than creating separate maritime zones for each island 599. The LOS Convention sets detailed limits on the State’s ability to draw archipelagic baselines. Archipelagic baselines must enclose the main islands of the archipelago, maintaining within the baselines a ratio of land-to-water of no less than one-to-one and no more than one-tonine 600. The length of the baselines cannot exceed 100 nautical miles, except in certain limited circumstances 601. Such limits preclude, for example, Fiji from including the outlying island of Ra Otuma (or Rotuma) within its baselines 602. Indeed, too much water in the land-to-water ratio precludes the Bahamas from drawing archipelagic baselines that include all of its islands, while too much land in the land-to-water ratio precludes Cuba from 603 drawing archipelagic baselines at all  . A further limitation is that, like straight baselines, the archipelagic baselines cannot “depart to any appreciable extent from the general configuration of the archipelago” 604 and   LOS Convention, Art. 46 (a).   Ibid., Art. 47 (1). 599   See generally International Law Association, Committee on Baselines under the International Law of the Sea, Report, Washington Conference, op. cit., pp. 18-24. 600   LOS Convention, Art. 47 (1). A special rule allowing certain waters to count as land for purposes of the ratio is helpful for coral archipelagos, such as the Bahamas. See ibid., Art. 47 (7). 601   Ibid., Art. 47 (2). 602   See Jayewardene, op. cit., p. 172. 603   Carlos Jiménez Piernas, “Archipelagic Waters”, in Max Planck Encyclopedia of Public International Law, Vol. I, op. cit., p. 553, para. 7. 604   LOS Convention, Art. 47 (3). 597 598

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cannot be drawn to and from low-tide elevations, with 605 some limited exceptions  . Moreover, the baselines also cannot be drawn “in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another State” 606. At the same time, an archipelagic State consisting of several archipelagos can draw a series of separate archipelagic baselines around each of its island groups, as has been done by Kiribati with respect to groups of its 33 coral atolls and islets. The archipelagic State is obliged to give due publicity to charts or lists of geographical co-ordinates showing its archipelagic baselines, and to deposit a copy of such charts or lists with the Secretary-General of the United Nations 607. Once archipelagic baselines are drawn, they serve as the basis for the archipelagic State to establish maritime zones over waters seaward of those baselines relating to the territorial sea, contiguous zone, exclusive economic 608 zone, and continental shelf  . Waters landward of these baselines are “archipelagic waters” ; they are not a territorial sea, nor are they internal waters unless they fall landward of non-archipelagic baselines of individual islands drawn in accordance with the standard LOS Convention rules 609. The archipelagic State has sovereignty over all the waters enclosed by these archipelagic baselines, their resources, the airspace above, and the seabed and subsoil below 610. At the same time, the archipelagic State must exercise its sovereignty in these archipelagic waters subject to the rules reflected in Part IV of the LOS Convention. As such, the archipelagic State must recognize certain   LOS Convention, Art. 47 (4).   Ibid., Art. 47 (5). 607   Ibid., Art. 47 (9). 608   Ibid., Art. 48. 609   Ibid., Art. 50. 610   Ibid., Art. 49. 605 606

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rights of other States with respect to other agreements, traditional fishing rights of neighbouring States, and 611 submarine cables  . Further, the LOS Convention provides that vessels enjoy the same right of innocent passage through these archipelagic waters as they enjoy through the territorial sea – a right that may only be suspended in limited circumstances 612. Moreover, like transit passage through straits, a special regime of “archipelagic sea lanes passage” is established to provide even more protection for navigational interests through the archipelagic waters 613. To that end, the archipelagic State is required to designate archipelagic sea lanes and air routes suitable for continuous and expeditious passage, analogous to those established by States bordering international straits 614. The sea lanes and air routes are designated after adoption by the competent international organization (respectively, the International Maritime Organization and the International Civil 615 Aviation Organization)  . Once designated, foreign   LOS Convention, Arts. 47 (6), 51 (1)-(2).   Ibid., Art. 52 ; see J. Peter A. Bernhardt, “The Right of Archipelagic Sea Lanes Passage : A Primer”, Virginia Journal of International Law, Vol. 35 (1995), p. 719. 613   LOS Convention, Art. 53. 614   See P. de Vries Lentsch, “The Right of Overflight over Strait States and Archipelagic States : Developments and Prospects”, Netherlands Yearbook of International Law, Vol. 14 (1983), p. 165 ; Bernard H. Oxman, “Transit of Straits and Archipelagic Waters by Military Aircraft”, Singapore Journal of International and Comparative Law, Vol. 4 (2000), p. 377. 615   LOS Convention, Art. 53 (9) ; see Constance Johnson, “A Rite of Passage : The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission”, International Journal of Marine and Coastal Law, Vol. 15 (2000), p. 317 ; Jay L. Batongbacal, “Barely Skimming the Surface : Archipelagic Sea Lanes Navigation and the IMO”, in Alex G. Oude Elferink and Donald R. Rothwell (eds.), Oceans Management in the 21st Century  : Institutional Frameworks and Responses, Martinus Nijhoff, 2004, p. 49. 611

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vessels and aircraft have special rights to transit through those sea lanes and air routes. For example, since the LOS Convention expressly states that archipelagic sea lanes passage is allowed in the “normal mode” 616, submarines may transit under water. At the same time, foreign vessels and aircraft are limited in the degree to which they can deviate from the route, and how close they may approach the islands 617. If the archipelagic State has not designated archipelagic sea lanes or routes, “the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation” 618. Many States Parties to the LOS Convention have taken advantage of Part IV : Antigua and Barbuda ; Bahamas ; Cape Verde ; Comoros ; Fiji ; Grenada ; Indonesia ; Jamaica : Kiribati ; Maldives ; Marshall Islands ; Mauritius  ; Papua New Guinea  ; Philippines  ; Saint Vincent and the Grenadines ; São Tomé and Príncipe ; Seychelles ; Solomon Islands ; Trinidad and Tobago ; Tuvalu ; and Vanuatu 619. Given such practice, and the general acceptance of the archipelagic baselines if done consistently with Part IV by States that are not parties to the LOS Convention 620, it seems likely that the rules   LOS Convention, Art. 53 (3).   Ibid., Art. 53 (5). 618   Ibid., Art. 53 (12). 619   One non-State Party, the Dominican Republic, has sought to declare archipelagic baselines as well, though (for reasons unrelated to its status as a non-party) those baselines have been criticized as inconsistent with the rules of Part IV. 620   For example, the United States – a non-party to the LOS Convention – has analysed the archipelagic baselines claimed by many States for consistency with the detailed provisions of Part IV of the LOS Convention. See, e.g., United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “Mauritius : Archipelagic and Other Maritime Claims and Boundaries”, Limits in the Seas, No. 140 (8 July 2014), op. cit. ; ibid., “Indonesia : Archipelagic and Other Maritime Claims and Boundaries”, No. 141 (15 September 2014) ; ibid., “Philippines : Archipelagic and 616 617

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set forth in Part IV now reflect customary international law. Indeed, in the Qatar v. Bahrain case, the Court essentially treated Part IV as constituting customary 621 international law  (Qatar having signed but not ratified the Convention at the time of the Court’s 2001 judgment 622). States that are not archipelagic States but that have offshore islands forming an archipelago in some instances have claimed straight baselines around the outermost perimeter of those islands (such as Spain with respect to the Canary and Balearic Islands 623). Drawing such baselines, which approximate the effect of archipelagic baselines, is not permissible under LOS Convention Articles 5, 7, 46, and 47 624. In Qatar v. Bahrain, the International Court stated that unless the islands are fringe islands along a coast, “the method of straight baselines is applicable only if the State has declared itself to be an archipelagic State under Part IV of the 1982 Convention on the Law of the Sea, which is not true of Bahrain in this case” 625. Other Maritime Claims and Boundaries”, No. 142 (15 September 2014). 621   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 91, 96, 103-104, paras. 167, 181-182, 214-215. 622   Ibid., p. 91, para. 167. 623   See Ley 44/2010 (30 December 2010), reprinted in BOE-A-2010-20140  ; C. Jiménez Piernas, “Incidencia del principio archipelágico en la problemática marítima y autonómica de Canarias”, Revista Española de Derecho Internacional, Vol. 33 (1981), p. 523. 624   See Erik Franckx and Marco Benatar, “Straight Baselines around Insular Formations Not Constituting an Archipelagic State”, in C. J. Jenner and Tran Truong Thuy (eds.), The South China Sea : A Crucible of Regional Cooperation or ConflictMaking Sovereignty Claims ?, Cambridge University Press, 2016, p. 186. 625   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 103, para. 214.

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Likewise, the Philippines v. China arbitral tribunal asserted that such baselines were not permissible. It stated : “Article 7 provides for the application of straight baselines only ‘[i]n localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity’. These conditions do not include the situation of an offshore archipelago. Although the Convention does not expressly preclude the use of straight baselines in other circumstances, the Tribunal considers that the grant of permission in Article 7 concerning straight baselines generally, together with the conditional permission in Articles 46 and 47 for certain States to draw archipelagic baselines, excludes the possibility of employing straight baselines in other circumstances, in particular with respect to offshore archipelagos not meeting the criteria for archipelagic baselines. Any other interpretation would effectively render the conditions in Articles 7 and 47 meaningless.” 626 H.  Islands and Historic Titles, Bays and Rights Under customary international law, there existed the concepts of “historic title”, “historic bay”, and “historic rights” that a State possesses. Although such terms were not always used with precision, “historic title” is best understood as referring to sovereignty over land or maritime areas. In the context of maritime areas, an historic title may exist either with respect to internal waters or the territorial sea (with the term “historic waters” sometimes used) 627. “Historic bay” is best understood as 626   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 237, para. 575. 627   See Fisheries (United Kingdom v. Norway), ICJ Reports 1951, pp. 130-131 :

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referring a bay where a State claims historic title 628. To acquire historic title with respect to internal waters or a territorial sea, the coastal State must exercise effective authority over the waters for a considerable period and that usage must be acquiesced to by other States 629. “Historic rights” is best understood as a concept that describes rights of a State that are more limited than the “By ‘historic waters’ are usually meant waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title. The United Kingdom Government refers to the notion of historic titles both in respect of territorial waters and internal waters, considering such titles, in both cases, as derogations from general international law. In its opinion Norway can justify the claim that these waters are territorial or internal on the ground that she has exercised the necessary jurisdiction over them for a long period without opposition from other States, a kind of possession longi temporis, with the result that her jurisdiction over these waters must now be recognized although it constitutes a derogation from the rules in force. Norwegian sovereignty over these waters would constitute an exception, historic titles justifying situations which would otherwise be in conflict with international law.” See generally Yehuda Z. Blum, Historic Titles in International Law, Martinus Nijhoff, 1965 ; Clive R. Symmons, Historic Waters in the Law of the Sea : A Modern Re-Appraisal, Martinus Nijhoff, 2008 ; David Anderson, “Some Aspects of the Regime of Islands in the Law of the Sea”, International Journal of Marine and Coastal Law, Vol. 32 (2017), p. 316 at pp. 310321. 628   UN Secretariat, “Historic Bays”, document A/CONF.13/ 1 (30 September 1957), in Official Records of the United Nations Conference on the Law of the Sea, Vol. I (Preparatory Documents) (1958), p. 1 ; L. F. E. Goldie, “Historic Bays in International Law – An Impressionistic Overview”, Syracuse Journal of International Law and Commerce, Vol. 11 (1984), p. 211. 629   UN Secretariat, “Judicial Régime of Historic Waters, Including Historic Bays”, document A/CN.4/143, in Yearbook of the International Law Commission 1962, Vol. II, p. 1 at pp. 13-21, paras. 80-148.

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plenary notion of sovereignty, such as a right of transit through another State’s territory 630. Tanaka maintains that the “term ‘historic rights’ may be defined as rights over certain land or maritime areas acquired by a State through a continuous and public usage from time immemorial and acquiescence by other States, although those rights would not normally accrue to it under general international law” 631. Such rights are created through State practice, not the practice of private individuals, and thus are rights possessed by the State. In the context of the law of the sea, historic rights emerged principally during the time when the territorial sea was limited to three nautical miles, and coastal States sought to protect their interests in the adjacent high seas by claiming historic rights to their natural resources, so as to exclude exploitation by others. A key question is to what extent such concepts continue to exist for States Parties to the LOS Convention and to what extent contemporary customary international law of the sea has changed under the influence of the LOS Convention and State practice. The concept of historic 630   See generally Yehuda Z. Blum, “Historic Rights”, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 7, North-Holland, 1984, p. 120. 631   Tanaka, The International Law of the Sea, op. cit., p. 223 ; see Questions relating to Settlers of German Origin in Poland, Advisory Opinion of 10 September 1923, PCIJ, Series B, No. 6, p. 6 at p. 36 (“Private rights acquired under existing law do not cease on a change of sovereignty”) ; Abyei Arbitration (Government of Sudan v. Sudan People’s Liberation Movement/ Army), Final Award of 22 July 2009, Reports of International Arbitral Awards, Vol. XXX, p. 145 at p. 412, para. 766 (“[T]raditional rights, in the absence of an explicit agreement to the contrary, have usually been deemed to remain unaffected by any territorial delimitation”).

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titles or bays may be seen in just a few articles 632. Article 10 on “bays” indicates that its “provisions do not apply to so-called ‘historic’ bays” 633. Article 15 on delimiting the territorial seas by use of a median line (unless otherwise agreed) indicates that it “does not apply . . . where it is necessary by reason of historic title . . . to delimit the territorial seas of the two States in a way which is at variance therewith” 634. Article 298 allows a State Party to opt out of binding compulsory dispute settlement with respect to disputes involving “historic bays or titles” 635. Yet the concept of historic rights is largely lacking from the LOS Convention. Article 8 provides that where a straight baseline encloses as internal waters “areas which had not previously been considered as such”, then a right of innocent passage exists in those waters. Yet it appears that the advent of the exclusive economic zone and continental shelf has displaced whatever historic rights previously existed beyond a State’s internal waters and territorial sea. A handful of LOS Convention articles do address the issue of historical usages or practices, but those articles were not crafted to acknowledge rights or titles as such. Article 46 defines an “archipelago” as a group of islands, including interconnecting waters, that, inter alia “historically have been regarded” as closely interrelated 636. Articles 62, 69 and 70 refer to providing 632   Article 7 on the drawing of straight baselines indicates that one factor to be taken into account is “economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by long usage”, but it does not accord any rights based on such usage. LOS Convention, Art. 7 (5). 633   Ibid., Art. 10 (6). 634   Ibid., Art. 15. 635   Ibid., Art. 298 (1) (a) (i) ; see Louis Sohn, “Article 298”, in Nordquist, Nandan and Rosenne (eds.), United Nations Convention on the Law of the Sea, 1982 : A Commentary, Vol. 5, op. cit., p. 107. 636   LOS Convention, Art. 46 (b).

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access for exploitation of the surplus allowable catch in the exclusive economic zone to “States whose nationals have habitually fished in the zone” 637. Article 79 requires all States to “have due regard to [submarine] cables or pipelines already in position” 638. The concepts of historic titles and bays, and of historic rights, occasionally feature in disputes relating to islands, and therefore are addressed briefly below. 1.  Historic titles and bays As indicated above, in the context of the law of the sea, “historic title” and “historic bay” are best understood as referring to sovereignty in either internal waters or a territorial sea. Looking at the near-final version of the LOS Convention in 1982, the International Court in Tunisia/Libya said that : “Historic titles must enjoy respect and be preserved as they have always been by long usage. . . . [In the draft LOS Convention,] there is neither a definition of the concept nor an elaboration of the juridical régime of ‘historic waters’ or ‘historic bays’. There are, however, references to ‘historic bays’ or ‘historic titles’ or historic reasons in a way amounting to a reservation to the rules set forth therein. It seems clear that the matter continues to be governed by general international law which does not provide for a single ‘régime’ for ‘historic waters’ or ‘historic bays’, but only for a particular régime for each of the concrete, recognized cases of ‘historic waters’ or ‘historic bays’.” 639   LOS Convention, Arts. 62 (3), 69 (4) and 70 (5).   Ibid., Art. 79 (5). 639   Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, p. 18 at pp. 73-74, para. 100. 637 638

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Hence, the LOS Convention uses such concepts in certain circumstances and, when it does, the concept entails use of other rules of international law to determine the existence of unique rights in a particular geographic area. Thus, the LOS Convention contemplates that a State might draw a closing line across a bay that otherwise would be impermissible, based on that State’s historic claim to the bay, or that a State may insist upon a territorial sea delimitation that takes account of a claim to historic title 640. Determination of whether a valid claim to an historic title or bay exists turns not on the rules of the LOS Convention, but on other international law as expressly contemplated by the Convention, and even then there is no single regime to be applied. Rather, there is “a particular régime” for “the concrete, recognized case” where there exist a specific historic title or bay. The concept of historic title, however, is not limited to maritime spaces ; it may also be invoked in the context of sovereignty over an island and, in such circumstances, is closely allied with title to territory based on continuous 641 and peaceful display of sovereignty  . The arbitral tribunal in the dispute between Eritrea and Yemen concerning sovereignty over islands in the Red Sea was called upon to “decide territorial sovereignty in accordance with the principles, rules and practices of international law applicable in the matter, and on the basis, in particular, of historic titles” 642. While the tribunal ultimately decided in that case that neither party had established historic title to the islands in question, it explained : 640   See Clive R. Symmons, Historic Waters in the Law of the Sea : A Modern Re-Appraisal, op. cit. 641   See Chapter IV, Sec. F. 642   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, p. 238, para. 102 (emphasis added) (quoting the Agreement for Arbitration, Art. 2 (2)).

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“The notion of an historic title is well-known in international law, not least in respect of ‘historic bays’, which are governed by rules exceptional to the normal rules about bays. Historic bays again rely upon a kind of ‘ancient title’ : a title that has so long been established by common repute that this common knowledge is itself a sufficient. But an historic title has also another and different meaning in international law as a title that has been created, or consolidated, by a process of prescription, or acquiescence, or by possession so long continued as to have become accepted by the law as a title. These titles too are historic in the sense that continuity and the lapse of a period of time is of the essence.” 643 Thus, islands may be associated with claims to historic title over territory or waters. A claim to historic waters may arise in the context of an island that possesses a bay, where the closing line depends on a claim to an historic bay, or where it is claimed that delimitation of the island’s territorial sea vis-à-vis another State must take account of an historic title. More elaborate circumstances may also exist. In Land, Island and Maritime Frontier Dispute between El Salvador and Honduras, a Chamber of the International Court found that the Gulf of Fonseca, bordered by El Salvador, Honduras and Nicaragua and containing islands under the sovereignty of each, “is an historic bay with the character of a closed sea” 644. All three States were entitled to 3-nautical-mile territorial seas within the bay extending from each of their coasts and islands ; outside those territorial seas, the waters of the bay were subject to communal sovereignty (with a juridical status analogous to internal waters, but with   Op. cit. supra, footnote 642, p. 239, para. 106.   Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras : Nicaragua intervening), ICJ Reports 1992, p. 593, para. 394. 643 644

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rights of innocent passage) up to the bay’s closing line 645. Seaward of that closing line, the three States were entitled – again based on a notion of joint sovereignty – to a territorial sea, continental shelf, and exclusive economic zone 646. In the 2016 Philippines v. China award, the arbitral tribunal considered the nature of China’s “nine-dash line” in the South China Sea, which enveloped almost all that Sea and its numerous islands and other maritime features. The tribunal – using “historic rights” in a broad sense to mean historic claims that may include 645   Op. cit. supra, footnote 644, pp. 598-600, 616, paras. 400401, 432 (1). 646   Ibid., p. 617, para 432 (3). In his dissent, Judge Oda argued that the concept of a pluri-State “historic bay” was unknown to both customary and conventional international law, and therefore the Gulf of Fonseca should not be regarded as such a bay. Ibid., pp. 733-757, paras. 1-44 (dissenting opinion of Judge Oda). Moreover, he concluded that

“the concept of ‘historic waters’ has become practically a redundancy, which is perhaps why it does not appear in either the 1958 or the 1982 Conventions. In fact, it is not so much a concept as a description expressive of the historic title on the basis of which a claim to a particular status for certain waters has been made. Thus, firstly in the 1951 Fisheries case a claim to ‘historic waters’ was used to justify the status of internal waters, secondly a claim to ‘historic waters’ for the waters of a bay could have justified a concept of a ‘historic bay’ the waters of which are ‘internal waters’, and thirdly in another instance, i.e., in the case of the Philippines, it has been used to justify only the status of territorial sea, resulting in the emergence of a new sui generis concept of archipelagic waters. It follows, therefore, that ‘historic waters’ have no special legal status different from the categories which have long been recognized, that is, either internal waters or territorial sea (or the newly recognized archipelagic waters) : in other words, ‘historic waters’ as such did not and do not exist as an independent institution in the law of the sea.” Ibid., p. 756, para. 44.

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sovereignty or more limited rights 647 – noted that “China has never expressly clarified the nature or scope of its claimed historic rights” 648, but concluded that China could not be claiming an historic bay, because the geography of the South China Sea was such that it could not be a bay 649. Further, the tribunal found that China was not claiming “historic title” over the South China Sea, as one might find with respect to an area within a territorial sea, for two reasons. First, China’s invocation of historic rights indicated that it understood such rights as extending beyond the maritime zones recognized under the LOS Convention, including beyond the territorial sea and internal waters 650. Second, China did not claim sovereignty such as exists in a territorial sea or internal waters. For example, China accepted that there existed freedom of navigation and freedom of overflight within the South China Sea, freedoms that do not exist in the territorial sea or internal waters 651. Instead of a claim to “historic title”, the tribunal determined that China’s nine-dash line was in the nature of a claim to “historic rights” relating to exploitation of resources 652. 647   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 96-97, paras. 225, 228. 648   Ibid., p. 71, para. 180. For a US analysis of the possible interpretations of the 9-dash line and its consistency with the law of the sea, including a discussion of international law concerning historic title and historic rights, see United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “China : Maritime Claims in the South China Sea”, Limits in the Seas, No. 143 (5 December 2014), op. cit. 649   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 85-86, para. 205. 650   Ibid., pp. 86-87, para. 207. 651   Ibid., p. 91, paras. 212-213. 652   As such, the tribunal decided that China’s claims did not fall within the scope of the LOS Convention Article 298 optional exception to compulsory dispute settlement, which

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2.  Historic rights As noted above, “historic rights” are best understood as a concept that describes rights of a State that are more limited than the plenary notion of sovereignty, such as a right of transit through another State’s territory. In establishing the exclusive economic zone and continental shelf regimes, the LOS Convention makes no reference to “historic rights”, thereby raising a question as to whether such rights can co-exist with respect to those zones under the LOS Convention. One context for a claim to historic rights is when a State argues that it has exclusive rights to the resources of the sea that exist in an area outside of its internal waters or territorial sea. Another context for a claim to historic rights is when a State argues that, despite rights that may exist for a coastal State in areas adjacent to its coast (and outside its territorial sea), the first State has rights of access to the resources of those areas. Prior to the Convention’s entry into force, there was some support in case law for the existence of such rights, especially as claims to the continental shelf and to preferential fishing zones for coastal States began to emerge. Thus, in the Fisheries Jurisdiction cases, the International Court accepted Iceland’s claim to preferential fishing rights off its coast and beyond its territorial sea, stating that such rights “come into play only at the moment when an intensification in the exploitation of fishery resources makes it imperative to introduce some system of catch-limitation and sharing of those resources, to preserve the fish stocks in the interests of their rational and economic exploitation”653. was invoked by China in 2006, with respect to disputes involving “historic bays or titles”. Op. cit. supra, footnote 649, pp. 85, 97, 471, paras. 203, 229, 1203 (A) (1). 653   Fisheries Jurisdiction (United Kingdom v. Iceland), ICJ Reports 1974, p. 3 at p. 27, para. 60 ; Fisheries Jurisdiction

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At the same time, the Court denied Iceland an ability to exclude the vessels of other States who had habitually fished in those waters, saying : “The characterization of the coastal State’s rights as preferential implies a certain priority, but cannot imply the extinction of the concurrent rights of other States, and particularly of a State which . . . has for many years been engaged in fishing in the waters in question, such fishing activity being important to the economy of the country concerned.” 654 Yet since the adoption of the LOS Convention in 1982, tribunals have viewed the rights and obligations set forth therein as determinant, at least with respect to States Parties to that Convention. Thus, a State Party is entitled to declare a 200-nautical-mile exclusive economic zone from its baselines within which it has the detailed rights and obligations set forth in the 1982 LOS Convention, which are not changed by any “historic rights” claimed by some other State Party. A good example of this is the Philippines v. China arbitral tribunal award rendered in 2016, which considered whether China’s “nine-dash line” encircling the South China Sea, if conceived of as a claim to “historic rights” 655, might be valid. After analysing relevant articles (Federal Republic of Germany v. Iceland), Judgment of 25 July 1974, ICJ Reports 1974, p. 175 at pp. 195, para. 52. 654   Fisheries Jurisdiction (United Kingdom v. Iceland), ICJ Reports 1974, pp. 27-28, para. 62 ; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), ICJ Reports 1974, p. 196, para. 54. 655   In the aftermath of the tribunal’s decision on the merits, China confirmed publicly (apparently for the first time) that it claims historic rights in the South China Sea. See Statement of the Government of the People’s Republic of China on China’s Territorial Sovereignty and Maritime Rights and Interests in the South China Sea (12 July 2016), available at : http :// nl.china-embassy.org/eng/xwdt/t1379888.htm (“Based on the practice of the Chinese people and the Chinese government

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of the LOS Convention establishing its supremacy over conflicting customary international law 656 and relating to the rights of coastal States with respect to the exclusive economic zone 657, as well as the Convention’s negotiating history concerning the exclusive economic zone 658, and associated case law 659, the tribunal stated : “261.  . . . [T]he Tribunal concludes that China’s claim to historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention to the extent that it exceeds the limits of China’s maritime zones as provided for by the Convention. This is apparent in the text of the Convention which comprehensively addresses the rights of other States within the areas of the exclusive economic zone and continental shelf and leaves no space for an assertion of historic rights. It is also reinforced by the negotiating record of the Convention where the importance of adopting a comprehensive instrument was manifest and where the cause of securing the rights of developing States over their exclusive economic zone and continental shelf was championed, in particular, by China. 262. Accordingly, upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living in the long course of history and the position consistently upheld by successive Chinese governments, and in accordance with national law and international law, including the United Nations Convention on the Law of the Sea, China has territorial sovereignty and maritime rights and interests in the South China Sea, including, inter alia : . . . iv. China has historic rights in the South China Sea”). 656   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 98-100, paras. 235-239. 657   Ibid., pp. 100-103, paras. 240-247. 658   Ibid., pp. 104-108, paras. 248-254. 659   Ibid., pp. 108-111, paras. 255-260.

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resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.” 660 Moreover, the tribunal went on to consider whether China was correct that it possessed historic rights prior to ratifying the LOS Convention, and found that it had not. The tribunal stated : “270.  . . . [I]n order to establish historic rights in the waters of the South China Sea, it would be necessary to show that China had engaged in activities that deviated from what was permitted under the freedom of the high seas and that other States acquiesced in such a right. In practice, to establish the exclusive historic right to living and non-living resources within the ‘nine-dash line’, which China now appears to claim, it would be necessary to show that China had historically sought to prohibit or restrict the exploitation of such resources by the nationals of other States and that those States had acquiesced in such restrictions. In the Tribunal’s view, such a claim cannot be supported. The Tribunal is unable to identify any evidence that would suggest that China historically regulated or controlled fishing in the South China Sea, beyond the limits of the territorial sea. With respect to the nonliving resources of the seabed, the Tribunal does not 660   Op. cit. supra, footnote 656, pp. 111-112, paras. 261262 ; see also ibid., p. 473, para. 1203 (B) (2).

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even see how this would be theoretically possible. Seabed mining was a glimmer of an idea when the Seabed Committee began the negotiations that led to the Convention. Offshore oil extraction was in its infancy and only recently became possible in deep water areas. Indeed, the China National Offshore Oil Corporation itself was only founded in 1982, the same year that China signed the Convention. With respect to the seabed, the Tribunal does not see any historical activity that could have been restricted or controlled, and correspondingly no basis for a historic right.” 661 Finally, the tribunal noted that other States had not acquiesced to Chinese claims of exclusivity over the resources of the South China Sea. It found that the “extent of the rights asserted within the ‘nine-dash line’ only became clear with China’s Notes Verbales of May 2009” and that “[s]ince that date, China’s claims have been clearly objected to by other States. In the Tribunal’s view, there is no acquiescence” 662. 3.  Artisanal (traditional) fishing rights Separate from its discussion of historic rights, the Philippines v. China arbitral tribunal found that there also existed certain artisanal or “traditional” fishing rights that survived the entry into force of the LOS Convention. According to the tribunal, the “legal basis for protecting artisanal fishing stems from the notion of vested rights and the understanding that, having pursued a livelihood through artisanal fishing over an extended period, generations of fishermen have acquired a right, akin to property, in the ability to continue to fish in the manner of their forebears” 663.   Op. cit. supra, footnote 656, pp. 114-115, para. 270.   Ibid., p. 116, para. 275. 663   Ibid., p. 312, para. 798. 661 662

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As this language suggests, these rights are not rights of States but, rather, private rights. Moreover, such rights are not possessed by industrial fishing, but by individuals and communities that have traditionally fished in an area 664. According to the tribunal, traditional fishing rights survived entry into force of the LOS Convention, but only in the territorial sea and in archipelagic waters, and not in the exclusive economic zone or continental shelf 665. With respect to the territorial sea, the Philippines argued 666 to the tribunal that traditional fishing rights of the nationals of one State in the territorial sea of another State continue to operate under the LOS Convention because Article 2, paragraph 3, provides that “sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law” 667. The tribunal appears to have agreed with this interpretation 668 and concluded that, based on the evidence before it, both Chinese and Filipino fishers have limited rights to conduct artisanal fishing in the territorial sea at Scarborough Shoal 669. Further, the tribunal determined that China wrongfully interfered with these traditional fishing rights of Filipino fishers, regardless of which country possessed sovereignty over Scarborough Shoal 670. Such a conclusion appears consistent with the decision of the arbitral tribunal in Chagos Marine Protected Area Arbitration, which found that it had jurisdiction to consider LOS Convention Article 2,   Op. cit. supra, footnote 656, p. 312, para. 798.   Ibid., pp. 314-315, para. 804. 666   Ibid., pp. 304-308, paras. 772-781. 667   LOS Convention, Art. 2 (3) (emphasis added). 668   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 314, para. 804 (c). 669   Ibid., p. 315, paras. 805-808, 1203 (B) (11). 670   Ibid., pp. 316-318, 475, paras. 808-814, 1203 (B) (11). 664 665

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paragraph 3, insofar as it related to Mauritius’s fishing rights in the territorial sea of the Chagos Islands 671, and “that the United Kingdom’s undertaking to ensure that fishing rights in the Chagos Archipelago would remain available to Mauritius as far as practicable is legally binding insofar as it relates to the territorial sea” 672. With respect to archipelagic waters, the Philippines v. China tribunal stated that in such waters “traditional fishing rights are expressly protected” 673. Specifically, LOS Convention Article 51, paragraph 1, provides that “an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters” 674. By contrast, traditional fishing rights of the nationals of one State in the exclusive economic zone of another State do not continue to operate under the LOS Convention ; rather, those “fishing rights are extinguished” 675. While such rights do not exist in the exclusive economic zone, traditional fishing practices in such waters remain of some continuing relevance. LOS Convention Article 62, paragraph 2, provides that the coastal State is capable of deciding that other States shall have no access to 671   Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3, p. 215, para. 547 (A) (3) (a). 672   Ibid., para. 547 (B) (1). 673   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 314, para. 804 (a). 674   LOS Convention, Art. 51 (1). 675   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 314, para. 804 (b).

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its exclusive economic zone for fishing, so long as the coastal State has the capacity to harvest the entire allowable catch. If it does not have such capacity, it must give access to other States so that the entire allowable catch can be exploited. When considering such access, LOS Convention Article 62, paragraph 3, provides that the coastal State shall consider “the need to minimize economic dislocation in States whose nationals have habitually fished in the zone” 676. Notably, Article 62 does not create any right to fish ; indeed, as the tribunal noted, its existence indicates that the drafters of the LOS Convention were aware of such habitual practices but chose not to afford any legal rights in that regard 677. By contrast, the arbitral tribunal in Eritrea-Yemen considered the concept of “historic rights” as relevant with respect to the fishing practices of Eritrean artisanal fishermen in all of the waters surrounding the Yemeni islands (as well as visits to the islands themselves). In that case, the tribunal determined that neither party had sufficiently established historic title to the islands in question but it did, in the first stage of the proceedings, attribute legal significance to certain “historic rights”, as a type of “servitude internationale” in the waters surrounding the islands 678. It stated that “the conditions that prevailed during many centuries with regard to the traditional openness of southern Red Sea marine resources for fishing, its role as means for unrestricted traffic from one side to the other, together with the common use of the islands by the populations of both coasts, are all important elements capable of creating certain ‘historic rights’ which accrued in   LOS Convention, Art. 62 (3).   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 314, para. 804 (b). 678   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998, p. 244, para. 126. 676 677

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favour of both parties through a process of historical consolidation as a sort of ‘servitude internationale’ falling short of territorial sovereignty. Such historic rights provide a sufficient legal basis for maintaining certain aspects of a res communis that has existed for centuries for the benefit of the populations on both sides of the Red Sea.” 679 At the second stage of the proceedings, the tribunal explained further what these historic rights entailed in the context of the International Court’s decisions on sovereignty over the islands and the delimitation of the maritime zones between the two States. “103.  The traditional fishing regime is not an entitlement in common to resources nor is it a shared right in them. Rather, it entitles both Eritrean [and] Yemeni fishermen to engage in artisanal fishing around the islands which, in its Award on Sovereignty, the Tribunal attributed to Yemen. This is to be understood as including diving, carried out by artisanal means, for shells and pearls. Equally, these fishermen remain entitled freely to use these islands for those purposes traditionally associated with such artisanal fishing – the use of the islands for drying fish, for way stations, for the provision of temporary shelter, and for the effecting of repairs. ....................................... 107. In order that the entitlements be real and not merely theoretical, the traditional regime has also recognized certain associated rights. There must be free access to and from the islands concerned – including unimpeded passage through waters in which, by virtue of its sovereignty over the islands, Yemen is entitled to exclude all third Parties or subject 679

  Op. cit. supra, footnote 678, p. 244, para. 126.

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their presence to license just as it may do in respect of Eritrean industrial fishing. This free passage for artisanal fishermen has traditionally existed not only between Eritrea and the islands, but also between the islands and the Yemen coast. The entitlement to enter the relevant ports, and to sell and market the fish there, is an integral element of the traditional regime. . . . ...................................... 109.  The traditional fishing regime is not limited to the territorial waters of specified islands ; nor are its limits to be drawn by reference to claimed past patterns of fishing. It is, as Yemen itself observes . . ., a ‘regime that has existed for the benefit of the fishermen of both countries throughout the region’. By its very nature it is not qualified by the maritime zones specified under the United Nations Convention on the Law of the Sea, the law chosen by the Parties to be applicable to this task in this Second Stage of the Arbitration. The traditional fishing regime operates throughout those waters beyond the territorial waters of each of the Parties, and also in their territorial waters and ports, to the extent and in the manner specified in paragraph 107.” 680 680   Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Reports of International Arbitral Awards, Vol. XXII (1999), p. 335, at pp. 359-361, paras. 103, 107, 109 (emphasis added). For analysis, see JeanFrancois Dobelle, “Le différend entre l’Erythrée et le Yémen : La sentence arbitrale du 17 décembre 1999 sur la delimitation des frontières maritimes”, Annuaire français de droit international, Vol. 45 (1999), p. 554 ; W. Michael Reisman, “Eritrea-Yemen Arbitration (Award, Phase II : Maritime Delimitation”, American Journal of International Law, Vol. 94 (2000), p. 721 ; Yoshifumi Tanaka, “Reflections on the Eritrea/Yemen Arbitration of 17 December 1999 (Second Phase : Maritime Delimitation)”, Netherlands International Law Review, Vol. 48 (2001), p. 197 ; Shifman, The Eritrea-Yemen Arbitral Awards 1998 and 1999, op. cit.

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The Philippines v. China arbitral tribunal disagreed with the conclusions reached by the Eritrea v. Yemen tribunal 681 and sought to distinguish those conclusions by saying that the latter tribunal was applying a broader array of law than just the LOS Convention 682 (Eritrea was not a party to the Convention). The emphasized text in the final paragraph above, however, suggests that the Eritrea v. Yemen tribunal did regard the LOS Convention as the applicable law on this particular issue. At the same time, the Eritrea v. Yemen tribunal did not engage in any analysis of the LOS Convention in relation to either “historic rights” or “traditional fishing rights”. As such, it remains unclear how that tribunal would rebut the points later made by the Philippines v. China tribunal concerning the effects of the entry into force of the LOS Convention on whatever such rights might have previously existed under customary international law. 4.  Historic rights and maritime delimitation The issue of “historic rights” may also arise in a context other than a claim to exclusivity to certain waters or a claim regarding access to the waters under the jurisdiction of another State. Historic rights might also be invoked as a basis for affecting the delimitation of the exclusive economic zone or continental shelf in a disputed area between two States. Thus, in the Libya/ Tunisia case, which was decided as the final touches were being put on the LOS Convention, Tunisia argued that the delimitation of the continental shelf should take into account, inter alia, Tunisia’s historic rights in the disputed area including with respect to islands and shoals, notably “the long-established interests and 681   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, pp. 313-314, para. 803. 682   Ibid., p. 110, para. 259.

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activities of its population in exploiting the fisheries of the bed and waters of the Mediterranean off its coasts”, which amounted to “the exercise of sovereign rights”, and was coupled with “tacit toleration and recognition thereof by third States” 683. The International Court stated that the “main thrust of the argument of Tunisia would seem to emphasize that the exploitation of these islands and the shoals surrounding them is a demonstration that they belong to the Tunisian landmass and are its extensions under the sea ; indeed, that the offshore areas are ‘submerged Tunisia’ ” 684. While the Court apparently accepted that delimitation of the continental shelf might be affected by the existence of Tunisia’s historic rights 685, it reached a delimitation on an independent basis without taking those rights into account, which the Court said left Tunisia “in the full and undisturbed exercise of those rights” 686. 683   Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 72, para. 98. 684   Ibid., p. 73, para. 99. 685   Ibid., pp. 64-65, para. 81 (“The ‘relevant circumstances which characterize the area’ are not limited to the facts of geography or geomorphology. . . . [The Court] has further to give due consideration to the historic rights claims by Tunisia . . .”). The Court appears to have viewed as potentially relevant both historic rights (which were rights arising from acquisition and occupation) and rights based on the natural prolongation of the land territory into and under the sea (which were rights “ipso facto and ab initio”). Ibid, p. 74, para. 100 (“It is clearly the case that, basically, the notion of historic rights or waters and that of the continental shelf are governed by distinct legal régimes in customary international law. The first régime is based on acquisition and occupation, while the second is based on the existence of rights ‘ipso facto and ab initio’ ”). At the same time, the Court suggested that such historic rights were more closely associated with the exclusive economic zone than the continental shelf. Ibid. 686   Ibid., pp. 76-77, para. 105.

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In the Gulf of Maine case, a Chamber of the Court considered whether a segment of the United States/ Canada exclusive economic zone and continental shelf boundary should be affected by a US claim to longstanding use of Georges Bank, especially by its fishers, which the Chamber viewed as “somewhat akin to the invocation of historic rights, though that expression has not been used” 687. In declining to recognize any effect on the boundary, the Chamber contrasted the situation prior to and after the emergence of 200-nautical-mile exclusive economic zones under the LOS Convention. “Until very recently, as the Chamber recalled, these expanses were part of the high seas and as such freely open to the fishermen not only of the United States and Canada but also of other countries, and they were indeed fished by many nationals of the latter. The Chamber of course readily allows that, during that period of free competition, the United States, as the coastal State, may have been able at certain places and times – no matter for how long – to achieve an actual predominance for its fisheries. But after the coastal States set up exclusive 200-mile fishery zones, the situation radically altered. Third States and their nationals found themselves deprived of any right of access to the sea areas within those zones, and of any position of advantage they might have been able to achieve within them.” 688 At the same time, while not using the term “historic rights”, the Chamber said that it did regard as a legitimate concern whether the overall delimitation “should unexpectedly be revealed as radically inequitable, that is to say, as likely to entail catastrophic repercussions for 687   Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), ICJ Reports 1984, pp. 340-341, para. 233. 688   Ibid., pp. 341-342, para. 235.

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the livelihood and economic well-being of the population of the countries concerned”, but it found no danger in that regard 689. That passage was cited by the Court in Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) 690, in the context of shifting a median line in favour of Denmark to “ensure equitable access to the capelin fishery resources for the vulnerable fishing communities concerned”. Such findings may support the proposition that historic practices with respect to fishing grounds may influence delimitation of the exclusive economic zone or even the continental shelf. Support for that proposition, however, seems weak given that the areas in question were traditionally part of the high seas, where States (and their vessels) were not able to appropriate the maritime space, nor were other States expected to react to such fishing practices as an infringement of their rights. When the island State of Barbados sought to argue in favour of a delimitation of the exclusive economic zone and continental shelf that would take account of its traditional fishing activities an area disputed with another island State, Trinidad and Tobago, an arbitral tribunal convened under Annex VII of the LOS Convention expressed doubt about the evidence presented with respect to those activities. Further, it stated that, “even if Barbados had succeeded in establishing one or all of its core factual contentions, it does not follow that, as a matter of law, its case for adjustment would be conclusive. Determining an international maritime boundary between two States on the basis of traditional fishing on the high seas by nationals of one of those   Op. cit. supra, footnote 687, pp. 342-343, paras. 237-238.   Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment of 14 June 1993, ICJ Reports 1993, pp. 71-72, paras. 75-76. 689 690

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States is altogether exceptional. Support for such a principle in customary and conventional international law is largely lacking. Support is most notably found in speculations of the late eminent jurist, Sir Gerald Fitzmaurice, and in the singular circumstances of the judgment of the International Court of Justice in the Jan Mayen case (I.C.J. Reports 1993, p. 38). That is insufficient to establish a rule of international law.” 691 I. Conclusion Islands, as well as low-tide elevations, can be an important potential element when drawing the normal or a straight baseline of a mainland, whether those islands are fringing the coast or are located in bays. Once the baselines are established, the extent of the territorial sea – in which the State has sovereignty – may be declared, including over low-tide elevations located therein. Like any mainland, an island at sea is subject to the same rules on baselines. Moreover, the island is entitled to a territorial sea and a contiguous zone and – provided it is not a “rock” within the meaning of LOS Convention Article 121, paragraph 3 – an exclusive economic zone and continental shelf as well. Special rules govern the drawing of baselines and the maritime zones of an archipelagic State. Islands may also be associated with limited claims as to historic titles, bays, and rights, as well as artisanal (traditional) fishing rights. 691   Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, Decision of 11 April 2006, Reports of International Arbitral Awards, Vol. XXVII, p. 147 at pp. 222-223, para. 269. For Fitzmaurice’s view, see Sir Gerald Fitzmaurice, “The Law and Procedure of the International Court of Justice, 1951-1954 : General Principles and Sources of Law”, British Yearbook of International Law, Vol. 30 (1953), p. 1 at p. 51.

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Maritime zones claimed by one State, however, may overlap with those claimed by another, and when this happens decisions on delimitation may need to take account of the presence of islands. The next chapter addresses the effects of islands on maritime boundary delimitation.

CHAPTER VII

EFFECTS OF ISLANDS ON MARITIME BOUNDARY DELIMITATION A maritime boundary between two adjacent or opposite States normally might be an “equidistance line”, meaning a line every point of which is equidistant from the nearest selected points on the baselines (“base points”) from which the breadth of the territorial sea of the respective States is measured 692. If there is no controversy regarding the threshold question of whether an equidistance line should be used or regarding the selection of base points, construction of the equidistance line is a mathematical exercise, undertaken in accordance with generallyaccepted cartographic standards, aided today by satellite imagery and computer software. Yet the selection of base points and the use of a pure equidistance line may prove unsatisfactory to States and lead to a sense of inequity, especially in the presence of islands. Indeed, islands will often feature in disputes concerning the delimitation of maritime zones and, in that regard, there are various scenarios that may arise. In some situations, there is a mainland State with its own fringing islands or low-tide elevations, and issues may arise concerning whether its base points for delimiting maritime zones with an adjacent or opposite State may be located on those features. In other situations, the island of one State may be close to the mainland of another State, raising issues of how to delimit the maritime zones between the two. In still other situations, an island of one 692   The terms “equidistance line” and “median line” are often used interchangeably, though “median line” sometimes is meant to refer to an equidistance line between opposite coasts.

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State and an island of another State out at sea may have overlapping maritime zones that must be delimited. And there may be extremely complicated situations involving two adjacent or opposite mainland States with both fringing and non-fringing islands mixed together in a disputed maritime area, perhaps with some islands of one State on the “wrong side” of an equidistance line drawn using base points on the two mainlands. In all such situations, if the matter is to be resolved, it must be through either negotiation or third-party dispute settlement. In doing so, there are some general rules, principles and approaches on delimitation of maritime zones that are typically applied, and some that relate specifically to islands. A.  Rules, Principles or Methods on Delimitation of Maritime Zones Generally Whether or not islands are present, certain rules, principles or methods are often applied to resolve maritime boundary disputes. In the 1969 North Sea Continental Shelf cases, the International Court provided general guidance for delimitation of the continental shelf, which influenced the later development of the 1982 LOS Convention and associated jurisprudence. The Court held that : “Delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other.” 693 693   North Sea Continental Shelf cases (Federal Republic of Germany/Denmark ; Federal Republic of Germany/Nether-

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In negotiating delimitation rules in the LOS Convention, most States fell into one of two camps. The first camp favoured relatively automatic use of an equidistance line, the approach taken in the 1958 Convention on the Continental Shelf 694. The second camp favoured a delimitation based on equitable principles, the approach taken in the North Sea Continental Shelf cases. A compromise was reached between these two camps that led to useful but not definitive provisions on delimitation in the LOS Convention. First, to the extent that a dispute concerns delimitation of territorial seas by two States that have adjacent or opposite coasts, LOS Convention Article 15 calls upon the two States to reach agreement ; if they cannot do so, each State can only extend its territorial sea to “the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured”. That equidistance line, however, does not apply “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith” 695. Second, if the dispute concerns delimitation of the exclusive economic zone or the continental shelf, paragraph 1 of Articles 74 and 83 of the LOS Convention provides that delimitation by two States that have lands), Judgment of 20 February 1969, ICJ Reports 1969, p. 54, para. 101 ; ibid., p. 46, para. 85 (“delimitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles”). 694   Convention on the Continental Shelf, Art. 6 (“In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured”). 695   LOS Convention, Art. 15.

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adjacent or opposite coasts “shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution” 696. Although by its terms directed at the conclusion of agreements by States, paragraph 1 is also viewed as being applicable for purposes of judicial and arbitral decisions 697. Further, since the paragraph does not distinguish between opposite and adjacent coasts, courts and tribunals have applied the same criteria regardless of the geographic configuration presented 698. If no agreement can be reached “within a reasonable period of time” 699, paragraph 2 of Articles 74 and 83 calls for resort to LOS Convention dispute resolution procedures 700. Although not all States are party to the LOS Convention, the International Court regards the principles of maritime delimitation enshrined in Articles 74 and 83 as reflective of customary international law 701. The concept of an “equitable” solution in Articles 74 and 83 has opened the door to a certain amount of   LOS Convention, Arts. 74 (1), 83 (1).   See, e.g., Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012, p. 55, para. 183. 698   See, e.g., Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, 2006, p. 232, para. 315. 699   In Barbados v. Trinidad and Tobago, the tribunal found that this requirement was met after the parties had engaged in nine rounds of negotiations for more than three years. See Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, 2006, pp. 204-206, paras. 194-200. 700   LOS Convention, Arts. 74 (2), 83 (2). 701   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 674, para. 139 ; see Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 91, paras. 167 et seq. 696 697

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flexibility and creativity in the resolution of maritime boundary disputes. Many States have reached bilateral agreements on delimitation matters that seek to balance their respective interests in an equitable manner (in doing so, States have often established a single maritime boundary for both the exclusive economic zone and continental shelf). Indeed, while focus is often placed on case law relating to delimitation, there is an extensive 702 body of State practice  in the form of maritime boundary agreements which is often referred to and which influences the development of the law, even if it is not always based on legal considerations. For example, Italy and Yugoslavia in 1968 concluded an agreement to delimit their continental shelf in the Adriatic 703, marking the first such continental shelf boundary in the Mediterranean. Extending for some 353 nautical miles, the agreed boundary largely made use of an equidistance line drawn from base points along the opposite mainland coasts of the two States. Yet a pure equidistance line would have significantly disadvantaged Italy due to the presence of several small islands possessed by Yugoslavia in the central Adriatic. Consequently, the two sides agreed to give reduced effect to the Yugoslav islands of Jabuka, Palagruža, and Galijula (thereby 702   A good source for such practice is  : International Maritime Boundaries, Vols. I-VII, Martinus Nijhoff, 1993-2016 (various editors). The first volume of the collection contains a useful analysis of such agreements as they relate to islands. See Derek Bowett, “Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations”, in Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries, Vol. I, Martinus Nijhoff, 1991, p. 131. In 1999, Charney identified 32 such agreements that were known to relate to islands. See Charney, “Rocks that Cannot Sustain Human Habitation”, op. cit., pp. 877-878. 703   See United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “Continental Shelf Boundary : Italy-Yugoslavia”, Limits in the Seas, No. 9 (20 February 1970), op. cit.

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favouring Italy in some respects), as well as to the Italian island of Pianosa (thereby favouring Yugoslavia). At the same time, numerous islands fringing Yugoslavia’s coast were given full effect in calculating the location of the equidistance line. This agreement no doubt has influenced the way other States in the Mediterranean and beyond have approached negotiations on delimitation in the presence of islands. On occasion, States have opted for more creative regimes that allow disaggregated rights. For example, the very complex Torres Strait Treaty between Australia and Papua New Guinea provides for a complex joint development zone, including the sharing of fishery resources in the Torres Strait, which is populated by hundreds of islands, most of which are under Australian sovereignty 704. Nevertheless, in some instances, States have litigated the issue before international courts or tribunals, which will also take into account equitable considerations 705. At 704   Treaty between Australia and the Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Strait, and related matters, done at Sydney on 18 December 1978, United Nations, Treaty Series, Vol. 1429, p. 207. See generally P. J. Boyce and M. W. D. White (eds.), The Torres Strait Treaty : A Symposium, Australian National University Press, 1981. 705   For scholarly treatment of delimitation issues relating to islands, see Andreas J. Jacovides, “Three Aspects of the Law of the Sea – Islands, Delimitation and Dispute Settlement”, Marine Policy, Vol. 3 (1979), p. 278 ; Emmanuel Gounaris, “The Delimitation of the Continental Shelf of Islands : Some Observations”, Revue hélenique de droit international, Vol. 33 (1980), p. 111 ; Hüseyin Pazarci, La delimitation du plateau continental et les îles, University of Ankara, 1982 ; Prosper Weil, The Law of Maritime Delimitation – Reflections, Cambridge University Press, 1989, pp. 229-235 ; Andrew J. Jacovides, “Some Aspects of the Law of the Sea : Islands, Delimitation and Dispute Settlement Revisited”, in International Law and Diplomacy : Selected Writings by Ambassador Andrew

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the same time, a court or tribunal will typically accept that it does not have “carte blanche to employ any method that it chooses in order to effect an equitable delimitation . . .” 706. Indeed, case law has built upon the requirements set forth in the LOS Convention in a manner that provides some greater predictability as to how an international Jacovides, Martinus Nijhoff, 2011  ; Guillermo Bouroncle, Influence of Islands in Maritime Boundaries, Lambert Academic Publishing, 2012 ; Heeyong Daniel Jang, “Diminishing Role of Islands in Maritime Boundary Delimitation : Case Studies of Dokdo/Takeshima Island and the Senkaku/Diaoyu Islands”, University of Hawai’i Law Review, Vol. 35 (2013), p. 139. For more general treatment of delimitation issues, see International Maritime Boundaries, Vols. I-VII, op. cit. ; Faraj A. Ahnish, The International Law of Maritime Boundaries and the Practice of States in the Mediterranean Sea, Clarendon Press, 1993 ; Jonathan Charney, “Progress in International Maritime Boundary Delimitation”, American Journal of International Law, Vol. 88 (1994), p. 227 ; Cook and Carleton (eds.), Continental Shelf Limits : The Scientific and Legal Interface, op. cit. ; Lea Brilmayer and Natalie Klein, “Land and Sea : Two Sovereignty Regimes in Search of a Common Denominator”, NYU Journal of International Law and Politics, Vol. 33 (2001), p. 703 ; David A. Colson, “The Delimitation of the Outer Continental Shelf between Neighboring States”, American Journal of International Law, Vol. 97 (2003), p. 91 ; Nuno S. M. Atunes, Towards the Conceptualisation of Maritime Delimitation, Martinus Nijhoff, 2003 ; Prescott and Schofield, The Maritime Political Boundaries of the World, op. cit. ; Rainer Lagoni and Daniel Vignes (eds.), Maritime Delimitation, Martinus Nijhoff, 2006 ; Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, Hart Publishing, 2006 ; Bernard H. Oxman, “The Territorial Temptation : A Siren Song at Sea”, American Journal of International Law, Vol. 100 (2006), p. 830 ; Hong and Van Dyke (eds.), Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, op. cit. ; Stephen Fietta and Robin Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation, Oxford University Press, 2016. 706   Delimitation of the Continental Shelf (UK, France), 1977, p. 114, para. 245.

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court or tribunal will approach a maritime boundary delimitation. The exact methodology used by courts and tribunals to delimit maritime areas has varied somewhat, but the International Court in its unanimous 2009 Black Sea judgment indicated that a three-stage approach was appropriate 707. This method, sometimes referred to as a form of “corrective equity”, may now become the standard, especially given its adoption in several Annex VII arbitrations under the LOS Convention, such as in the Bangladesh v. India case 708. Moreover, it is being applied in cases where the applicable law is customary international law (not the LOS Convention), such as in Territorial and Maritime Dispute (Nicaragua v. Colombia). Under the three-stage approach, the tribunal first should establish a provisional equidistance line, meaning a line every point of which is equidistant from the nearest points of the baselines of the two adjacent or opposite states. Where there are no unusual circumstances with respect to the geography of the area being delimited, that line may end up being the line of delimitation. Such circumstances, as noted below, may include ignoring minor features such as very small islands 709. Second, the tribunal should “consider whether there are factors calling for the adjustment or shifting of the 707   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, pp. 101-103, paras. 115-122. For criticism of the approach, see Malcolm Evans, “Maritime Boundary Delimitation”, in Rothwell et al. (eds.), The Oxford Handbook of the Law of the Sea, op. cit., pp. 254-279. 708   Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, PCA Case No. 2010-16, available at : https ://www.pcacases.com/web/ sendAttach/383. 709   North Sea Continental Shelf cases (Germany/Denmark ; Germany/Netherlands), ICJ Reports 1969, p. 36, para. 57 ; Delimitation of the Continental Shelf (UK, France), 1977, p. 88, para. 182.

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provisional equidistance line in order to achieve an equitable result” 710. For example, one factor that has influenced courts and tribunals is whether an equidistance line cuts off one of the States from the maritime space directly before its coastal front 711. Such factors also might include the presence of islands, which would warrant shifting the line in one direction or the other. Third, the tribunal should verify that the delimitation line does not “lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths and the ratio between the relevant maritime area of each State by reference to the delimitation line” 712. In other words, the tribunal should look at the amount of maritime space being accorded to each of the States, in relation to their coasts, to see if there is a grossly disproportionate allocation of the maritime space to one side or the other. The case-law has distinguished between proportionality as an operative criterion and its application (as in the Black Sea case) for the purpose of correcting a solution reached by other criteria 713. While the three stages are discrete, in practice they may blur together. Thus, when constructing the provi710   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, p. 101, para. 120. 711   North Sea Continental Shelf cases (Germany/Denmark ; Germany/Netherlands), ICJ Reports 1969, pp. 31-32, para. 44. 712   Ibid., p. 103, para. 122. 713   See, e.g., Continental Shelf (Libyan Arab Jamahiriya/ Malta), Judgment of 3 June 1985, ICJ Reports 1985, p. 13, at pp. 44-45, para. 57 ; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), ICJ Reports 1984, pp. 334-335, para. 218 ; Case concerning Delimitation of Maritime Areas between Canada and France (St. Pierre and Miquelon), 1992, p. 1168 ; Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), Award of 17 September 2007, Reports of International Arbitral Awards, Vol. XXX (2012), p. 1.

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sional equidistance line at the first stage, the tribunal might decide to disregard certain islands at the outset, rather than drawing a strict equidistance line and then adjusting for those islands at the second stage. Moreover, in some situations approaching the delimitation through heavy reliance on an equidistance line is not feasible, for example where the coastline is unstable or fringed with islands or reefs. In such a situation, the court or tribunal may abandon the use of an equidistance line in favour of an “angle-bisector” line, as discussed below. For all these cases of delimitation, geography is the primary concern ; other factors, such as environmental concerns, are largely excluded. Further, given the importance of the provisional equidistance line, considerable attention is usually given to the selection of the base points along the coasts from which the equidistance line is drawn 714. Often, a unitary boundary for both the continental shelf and the water column above is established, but it is possible for the boundary to differ as between the two regimes. B.  Rules, Principles or Methods Relating to Islands When Delimiting Maritime Zones As noted at the beginning of this chapter, there are various scenarios where maritime boundary delimitation might be affected by the presence of islands. The International Tribunal for the Law of the Sea has recently maintained that “neither case law nor State practice indicates that there is a general rule concerning the effect to be given to islands in maritime delimitation. It 714   An example would be the dispute between Britain and France about the use of Eddystone Rocks as a relevant British base point, decided by an arbitral tribunal in Britain’s favour. Delimitation of the Continental Shelf (UK, France), 1977, pp. 66-74, paras. 122-144.

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depends on the particular circumstances of each case” 715. That insight largely appears true. Thus, the very small island of Qit’at Jaradah, which is uninhabited and without any vegetation, was given little significance in Qatar v. Bahrain 716. By contrast, Saint Martin’s Island was regarded in Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) as being a significant maritime feature for the purpose of delimiting the territorial sea, by virtue of its size and population, as well as the extent of economic and other activities occurring there 717. 1.  General observations Even so, there would appear to be at least some principles or approaches, if not rules, particular to islands that can be discerned from studying maritime boundaries agreed upon by States or decided by courts and tribunals. First, the political status of the island as a part of its State is not regarded as significant. Whether the island is fully integrated into the political structure of a State or, rather, is granted some other status (e.g., as a “political dependency”) is irrelevant 718. 715   Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012, p. 46, para. 147 ; see Dipla, “Islands”, op. cit., p. 405, para. 21 (“State practice, as witnessed by bilateral treaties, varies, and does not allow for safe and general conclusions”) ; von Mühlendahl, “Tiny Land Features in Recent Maritime Delimitation Case Law”, op. cit., p. 26 (“it is not possible to discern a marked preponderance among the different solutions and it appears that the judges or arbitrators adjust the solution to the circumstances of each case . . .”). 716   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, pp. 104-109, para. 219. 717   Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012, p. 47, para. 151. 718   See, e.g., Case concerning Delimitation of Maritime Areas between Canada and France (St. Pierre and Miquelon),

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Second, while low-tide elevations (as well as subsiding deltas and fringing reefs) 719 can play a role in the establishment of baselines and thus in the establishment of a State’s maritime zones, it is not necessarily the case that they can be used as base points when delimiting overlapping maritime zones with another State 720. In Maritime Delimitation in the Black Sea, the International Court stated that the equidistance line is “to be constructed from the most appropriate points on the coasts of the two States concerned, with particular attention paid to those protuberant coastal points situated nearest to the area to [be] delimited” 721. The words “protuberant coastal points” may be understood as excluding low-tide elevations. Indeed, in Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), the two sides argued over the propriety of using various base points, including a small, uninhabited sandbar that formed in the 1970s in the Bay of Bengal called South Talpatty by Bangladesh and New Moore by India. The tribunal found that “it was not apparent whether the feature was permanently submerged or constituted a low-tide elevation. In any event, whatever feature existed could in no way 1992, p. 1165, para. 49 (“In the view of this Court there are no grounds for contending that the extent of the maritime rights of an island depends on its political status”). 719   LOS Convention, Arts. 6-7. 720   See Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, PCA Case No. 2010-16, p. 73, para. 260 (noting LOS Convention Article 13, but stating that it “does not necessarily follow . . . that low-tide elevations should be considered as appropriate base points for use by a court or tribunal in delimiting a maritime boundary between adjacent coastlines”). 721   Maritime Delimitation in the Black Sea, ICJ Reports 2009, p. 101, para. 117 (emphasis added).

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be considered as situated on the coastline, much less as a ‘protuberant coastal point’, to use the expression of the International Court of Justice.” 722 Ultimately, the tribunal decided not to use any base points located on low tide elevations detached from the coast for the purpose of its delimitation 723. Third, a State with an island very close to its mainland can use the island as a base point when delimiting its territorial sea with another State. Likewise, the State can use an island that is not a LOS Convention Article 121, paragraph 3, “rock” as a base point when delimiting its exclusive economic zone and continental shelf with those of another State. Less clear is whether a “paragraph 3 rock” adjacent to the mainland can be used as a basepoint when delimiting extended maritime zones being generated from a larger, nearby feature. LOS Convention Article 121 does not address whether a “rock” may be used for such a purpose and the International Tribunal for the Law of the Sea has cautioned that “the effect to be given to islands in delimitation may differ, depending on whether the delimitation concerns the territorial sea or other maritime areas beyond it” 724. The issue might turn on whether the rock is part of a closely-related cluster of large and small islands. For example, for the northern segment of the maritime boundary in Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), the arbitral tribunal used large and small islands as base points located on the Eritrean Dahlak coastal archipelago, stating : 722   Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, PCA Case No. 201016, p. 74, para. 263 (citation omitted). 723   Ibid., para. 264. 724   Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012, p. 46, para. 148.

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“The tightly knit group of islands and islet, or ‘carpet’ of islands and islets as Eritrea preferred to call it, of which the larger islands have a considerable population, is a typical example of a group of islands that forms an integral part of the general coastal configuration. It seems in practice always to have been treated as such.” 725 Fourth, when a coastal State and the island of another State are in close proximity, the choice of the base points affecting their respective claims to maritime zones may be very difficult, and more subject to political good will than to legal certainty. The arbitral tribunal in the Anglo/French Delimitation of the Continental Shelf case, noting the presence of British islands close to the coast of France, stated : “In narrow waters such as these, strewn with islets and rocks, coastal States have a certain liberty in their choice of base-points ; and the selection of base-points for arriving at a median line in such waters which is at once practical and equitable appears to be a matter peculiarly suitable for determination by direct negotiation between the Parties.” 726 Fifth, when delimiting a maritime area, international courts and tribunals appear unwilling to accord to a very small island an effect equal to that of substantially larger islands or continental territory 727 ; rather, the island is often accorded some lesser degree of effect, such as half-effect. The degree to which a small island will influence the delimitation of maritime zones depends on the context, in particular its size and location. Indeed, in 725   Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), 1999, p. 367, para. 139. 726   Delimitation of the Continental Shelf (UK, France), 1977, p. 25, para. 22. 727   See Churchill and Lowe, op. cit., p. 50.

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the North Sea Continental Shelf cases, the International Court was dismissive of the effects of small islands, stating : “The continental shelf area off, and dividing, opposite States [consists of] . . . prolongations [which] meet and overlap, and can therefore only be delimited by means of a median line ; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionally distorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved.” 728 This discounting of small islands is apparent in agreements reached by States through negotiation 729 and in several of the delimitation cases before the International Court and other tribunals 730. In the Guinea/GuineaBissau case, the arbitral tribunal gave no effect to Guinea’s small island of Alcatraz when delimiting the 731 maritime boundary  . In Continental Shelf (Libyan 728   North Sea Continental Shelf cases (Germany/Denmark ; Germany/Netherlands), ICJ Reports 1969, p. 36, para. 57 (emphasis added). 729   See Charney, “Rocks that Cannot Sustain Human Habitation”, op. cit., p. 876. 730   See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), ICJ Reports 1984, p. 246 ; Delimitation of Maritime Areas between Canada and France (St. Pierre and Miquelon), 1992, p. 1145 ; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua intervening), ICJ Reports 1992, p. 351 ; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 661 ; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, p. 12 ; Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 624 ; Maritime Dispute (Peru v. Chile), ICJ Reports 2014, p. 3. 731   Ad Hoc Arbitration Tribunal Award Judicial and Similar Proceedings : Dispute concerning Delimitation of the Maritime

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Arab Jamahiriya/Malta), the International Court noted the existence of the uninhabited Maltese island of Filfla (which is about 0.06 square kilometres in size and some five kilometres south of Malta), but regarded it as inequitable to allow such an island to affect the drawing of the maritime boundary between Libya and Malta 732. In the Black Sea case, the Court declined to use a small Ukrainian island (Serpents’ Island, about 0.17 square kilometres) as one of the base points, finding that doing so would generate a line that would constitute a “judicial refashioning of the geography” 733. In Qatar v. Bahrain, the Court ultimately saw no significance for delimitation purposes in the small 734, barren, and uninhabited Bahraini island of Qit’at Jaradah, located midway between Bahrain and Qatar. The Court did regard Qit’at Jaradah as an island within the meaning of LOS Convention Article 121 and stated that it “should as such be taken into consideration for the drawing of the equidistance line” 735. Yet when it came time to draw that line, the Court declined to do so, stating that Boundary (Guinea/Guinea-Bissau), 25 ILM 251 (1985), pp. 296-297. 732   Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, p. 48, para. 64. 733   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, pp. 109-110, para. 149 ; see Gabriela A. Oanta, “La incidencia de la Isla dela Serpientes del Mar Negro en la delimitación de los espacios marinos”, in José Manuel Sobrino Heredia (ed.), La contribution de la Convention des Nations Unies sur le Droit de la Mer à la bonne gouvernance des mers et des océans, Editoriale Scientifica, Vol. 1, 2014, p. 363. 734   See Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 99, para. 197 (“According to the report of the expert commissioned by Bahrain, at high tide its length and breadth are about 12 by 4 metres, whereas at low tide they are 600 and 75 metres. At high tide, its altitude is approximately 0.4 metres”). 735   Ibid., p. 99, para. 195.

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“if its low-water line were to be used for determining a basepoint in the construction of the equidistance line, and this line taken as the delimitation line, a disproportionate effect would be given to an insignificant maritime feature . . . The Court thus finds that there is a special circumstance in this case warranting the choice of a delimitation line passing immediately to the east of Qit’at Jaradah.” 736 Likewise, the Court declined to give any effect to Fasht al Jarim, a maritime feature located in Bahrain’s territorial sea, viewing it as a “remote projection of Bahrain’s coastline in the Gulf area, which, if given full effect, would ‘distort the boundary and have disproportionate effects’ ” 737. Indeed, “such a distortion, due to a maritime feature located well out to sea and of which at most a minute part is above water at high tide, would not lead to an equitable solution . . . In the circumstances of the case considerations of equity require that Fasht al Jarim should have no effect in determining the boundary line in the northern sector.” 738 Larger islands proximate to the coastline may not be discounted, especially if they possess inhabitants and economic activity. As noted above, the International Tribunal for the Law of the Sea gave full effect to Saint Martin’s Island in the Bay of Bengal (8 square kilometres and inhabited by approximately 3,700 persons) when drawing the delimitation line of the territorial sea between Bangladesh and Myanmar, saying that the island was “a significant maritime feature by virtue of its size and population and the extent of economic and other   Op. cit. supra, footnote 734, pp. 104-109, para. 219.   Ibid., pp. 114-115, para. 247 (citing to Delimitation of the Continental Shelf (UK, France), 1977, p. 114, para. 224). 738   Ibid., p. 115, para. 248. 736 737

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activities” 739. When drawing the northern segment of the maritime boundary in Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), the arbitral tribunal declined to use as base points Yemen’s Al-Tayr Island and Al-Zubayr Group because of “their barren and inhospitable nature and their position well out to sea” and because they “do not constitute a part of Yemen’s mainland coast” 740, but gave full effect to Yemen’s “relatively large, inhabited and important island of Kamaran”, as well as certain smaller islands (Kutama and Uqban) which were “part of an intricate system of islands, islets and reefs which guard this part of [Yemen’s] coast” 741. Yet even somewhat larger islands along a coast might be ignored if it is thought that they disproportionately or inequitably effect the boundary delimitation. For example, the Court gave no effect to the offshore Tunisian island of Djerba (514 square kilometres) when drawing its maritime boundary with Libya in Continental Shelf (Tunisia/Libyan Arab Jamahiriya) 742. Sixth, when there are overlapping claims to a territorial sea by opposite or adjacent States, assertions about the effects of a low-tide elevation located in the disputed area will likely be disregarded. The International Court stated in Qatar v. Bahrain : “When a low-tide elevation is situated in the overlapping area of the territorial sea of two States, whether with opposite or with adjacent coasts, both States in principle are entitled to use its low-water 739   Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012, p. 47, paras. 151-152. 740   Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), 1999, p. 368, para. 147. 741   Ibid., p. 369, paras. 150-151. 742   Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 18, para. 79.

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line for the measuring of the breadth of their territorial sea. The same low-tide elevation then forms part of the coastal configuration of the two States. That is so even if the low tide elevation is nearer to the coast of one State than that of the other, or nearer to an island belonging to one party than it is to the mainland coast of the other. For delimitation purposes the competing rights derived by both coastal States from the relevant provisions of the law of the sea would by necessity seem to neutralize each other.” 743 As such, the Court gave no effect to the low-tide elevation of Fasht-ad-Dibal, located between Qatar and Bahrain, when deciding the location of their territorial sea boundary. Once that boundary was determined, Fasht-ad-Dibal was located on Qatar’s side of the boundary, and thus was determined to fall within Qatar’s sovereignty 744. The same approach was contemplated in Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), where the Court concluded that the low-tide elevation of South Ledge would belong to the “state in the territorial waters of which it is located”. In that case, however, the Court had no jurisdiction to draw a line delimiting the territorial sea, and therefore sovereignty over South Ledge could not be determined 745. 743   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 101, para. 202. 744   Ibid., paras. 202-204, 220. For analysis, see Prosper Weil, “Les hauts-fonds découvrants dans la délimitation maritime : A propos des paragraphes 200-209 de l’arrêt de la Cour intérnationale de Justice du 16 mars 2001 en l’affaire de la délimitation maritime et questions territoriales entre Qatar et Bahreïn”, in Nisuke Ando, Edward McWhinney and Rüdiger Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, Kluwer, 2002. 745   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, p. 101, para. 299.

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Seventh, while it might be said that a small island of one State located near a different, continental State is “encroaching” upon the latter, in fact both the island and the continental land mass typically are part of the same geological shelf, which cannot be regarded as exclusively associated with one or the other land feature 746. Here, too, however, the smaller size of the island in relation to the continental State will likely lessen the effect of the island in delimiting the maritime zones between the island and the continental State. Finally, islands that are further out to sea are entitled to full maritime zones provided they do not fall within the scope of Article 121, paragraph 3, of the LOS Convention. Yet if there are overlaps of those zones with continental States (or with much larger islands), then the smaller size and shorter coastal projection of the smaller island into the maritime space will likely result in according a lesser effect to the smaller island when conducting the delimitation. A good example of this is the 2006 delimitation by the tribunal in Barbados and the Republic of Trinidad and Tobago where, in the eastern area of the disputed maritime space, the tribunal determined the location of the maritime boundary by adjusting a provisional equidistance line taking into account, inter alia, the relevant coasts and their projection, as well as proportionality 747. Because Barbados is a single, smaller 746   See, e.g., Case concerning Delimitation of Maritime Areas between Canada and France (St. Pierre and Miquelon), 1992, pp. 1164-1165, para. 46 (quoting with approval Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), ICJ Reports 1984, p. 246, para. 45, in which a Chamber of the International Court found that “the continental shelf of the whole of this area is no more than an undifferentiated part of the continental shelf of the eastern seaboard of North America”). 747   Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between

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island than the islands of Trinidad and Tobago (which form an archipelagic State), and thus had a much smaller coastal length abutting the disputed area 748, the tribunal concluded that the equidistance line should be adjusted in favour of Trinidad and Tobago 749. After doing so, the tribunal applied the proportionality test, finding that this adjustment reflected a reasonable influence of the coastal frontages on the overall area of delimitation and avoided inequitable encroachments by either side 750. Adjustments of this kind can be analysed through the principal methods used when islands are present in the disputed maritime area. Those principal methods – use of an equidistance line ; use of an angle-bisector line ; enclaving islands ; and “mushrooming islands” – are discussed briefly in the following sections. 2.  Islands and an equidistance line The presence of islands in a maritime boundary dispute may result in a shift in an equidistance line that otherwise would be drawn based just on the mainland coasts. At the same time, the shifting of the line might not give full effect to the islands ; only partial effect might be given depending on the tribunal’s assessment of what is equitable or proportionate. In the Anglo/French Continental Shelf case, the Court considered the degree to which it should allow the French island of Ushant and the British Scilly Islands to affect the continental shelf delimitation in the Atlantic to the them, 2006, pp. 233-237, paras. 321-338. The tribunal also took into account regional considerations in the form of existing maritime delimitations with third States. Ibid., pp. 237-239, paras. 339-349. 748   Trinidad and Tobago argued (and Barbados contested) that the ratio of its coastal frontage as compared with that of Barbados was on the order of 8.2 :1. Ibid., paras. 159, 326, 352. 749   Ibid., paras. 327-328, 372-375. 750   Ibid., para. 379.

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west of the English Channel. After considering several factors, principally relating to geography, the tribunal decided to give only half-effect to the use of base points from the Scilly Islands. It explained : “The method of giving half effect consists in delimiting the line equidistant between the two coasts, first, without the use of the offshore island as a basepoint and, secondly, with its use as a base-point ; a boundary giving half-effect to the island is then the line drawn mid-way between those two equidistance lines. This method appears to the Court to be an appropriate and practical method of abating the disproportion and inequity which otherwise result from giving full effect to the Scilly Isles as a base-point for determining the course of the boundary.” 751 Thus, the tribunal viewed the function of equity as not to “produce absolute equality of treatment, but [as] an appropriate abatement of the inequitable effects of the distorting geographical feature”752. Similarly, in Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), a Chamber of the Court gave half-effect to Seal Island off the coast of Nova Scotia (in favour of Canada) when drawing an equidistance segment in the line delimiting the maritime boundary between Canada and the United States 753. The issue of shifting an equidistance line may arise, however, in a situation where there are not two mainland coasts adjacent to or opposite one another but, rather, a mainland and an island. In such a situation, 751   Delimitation of the Continental Shelf (UK, France), 1977, p. 117, para. 251. 752   Ibid. 753   Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), ICJ Reports 1984, p. 336, para. 222.

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the equidistance line might be shifted in a manner that disfavours the island, given the disparity in coastlines and other factors. Thus, in Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), the Court acknowledged the small island of Jan Mayen as being entitled to maritime zones, but decided that the equidistance line boundary between the island and the much larger Greenland should not give full effect to Jan Mayen Island 754. Among other things, the Court considered the disparity in the coastlines of Jan Mayen Island and Greenland 755. Indeed, even the island State of Malta was denied full effect by the Court when drawing an equidistance line between Malta and Libya in Continental Shelf (Libyan Arab Jamahiriya/Malta). “[I]n order to ensure the achievement of an equitable solution” 756, the Court stated that it needed to take into account “the considerable disparity between the lengths of the coasts of the Parties here under consideration, the distance between those coasts, the placing of the base points governing any equidistance line, and the general geographic context” 757. Interestingly, in deciding the amount by which to shift the line in favour of Libya, the Court considered what the circumstances would be if Malta was a part of Italy (to its north) and a median line were drawn between Libya and Italy, taking into account the presence of the island of Malta 758. 754   Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), ICJ Reports 1993, p. 77, para. 87. 755   Ibid., p. 68, para. 68. 756   Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, pp. 51, 56, paras. 71, 78. 757   Ibid., para. 78. 758   Ibid., pp. 51-52, para. 72.

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3.  Islands and an angle-bisector line As the International Court noted in Territorial and Maritime Dispute (Nicaragua v. Colombia) : “The three-stage process is not, of course, to be applied in a mechanical fashion and the Court has recognized that it will not be appropriate in every case to begin with a provisional equidistance/median line.” 759 For example, rather than begin with an equidistance line, a delimitation might be undertaken using an “anglebisector” line. An angle-bisector line entails creating simplified straight lines along the coasts of two adjacent States and then bisecting the angle formed by those two lines to create a delimitation line extending out into the maritime space. While the method is different, such a line is still based on coastal geography ; indeed, the angle-bisector line might be regarded as a simplified equidistance line, meaning an equidistance line created from simplified coasts. Use of an angle-bisector line may be appropriate when the coast is extremely irregular, which may be due to the presence of numerous islands and low-tide elevations fringing the coast. The Chamber of the International Court in Gulf of Maine pointed out “the potential disadvantages inherent in any method which takes tiny islands, uninhabited rocks or lowtide elevations, sometimes lying at a considerable distance from terra firma, as basepoint for the drawing of a line intended to effect an equal division of a given area. If any of these geographical features possess some degree of importance, there is nothing to prevent their subsequently being assigned whatever 759   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 696, para. 194.

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limited corrective effect may equitably be ascribed to them, but that is an altogether different operation from making a series of such minor features the very basis for the determination of the dividing line, or from transforming them into a succession of basepoints for the geometrical construction of the entire line. It is very doubtful whether a line so constructed could, in many concrete situations, constitute a line genuinely giving effect to the criterion of equal division of the area in question . . .” 760 In part because, for one segment of the boundary, the Chamber would have ended up using an equidistance line “all of whose basepoints would be located on a handful of isolated rocks, some very distant from the coast, or on a few low-tide elevations” 761, the Chamber opted instead to “renounce the idea of employing the technical method of equidistance” and instead to use an angle-bisector approach 762. The Chamber was satisfied with the approach, in part because “this practical method combines the advantages of simplicity and clarity with that of producing, in the instant case, a result which is probably as close as possible to an equal division of the first area to be delimited” 763. If an angle-bisector approach is chosen, islands fringing a coast nevertheless might be taken into account for adjusting a segment of the line. In the Continental Shelf case between Tunisia and Libya, Tunisia argued that the eastern coastal front of Tunisia was marked by the presence of a body of islands, islets, and lowtide elevations, which formed a constituent part of the 760   Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States), ICJ Reports 1984, pp. 329-330, para. 201. 761   Ibid., p. 332, para. 210. 762   Ibid., pp. 332-333, paras. 212-213. 763   Ibid., p. 333, para. 213.

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Tunisian littoral, and which therefore should be taken into account in shifting the delimitation line in its favour 764. The Court agreed that the geographic presence of the islands and low-tide elevations was relevant. To delimit the continental shelf, the Court indicated 765 a line in an initial sector, near the coasts of the two States, based on an angle unrelated to the issue of islands 766. In the second sector, further from the coasts, the Court altered the angle of the line in Tunisia’s favour, inter alia 767, by giving half-effect to the existence and position of Tunisia’s Kerkennah Islands768. 4.  Enclaving islands The presence of islands in a maritime boundary dispute may present the tribunal with a choice of either : (1) shifting an equidistance line or angle-bisector line that is drawn based on mainland coasts so as to accommodate the islands, as indicated above ; or (2) keeping that line and instead wholly or partially “enclaving” the islands. 764   The Court viewed Tunisia’s argument as closely related to its claim to historic rights in the relevant waters, such as with respect to fishing, and as a general matter did not accept Tunisia’s position in that respect. Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), ICJ Reports 1982, pp. 63-64, para. 79 ; see also ibid., pp. 72-73, para. 99. 765   Like in the North Sea Continental Shelf cases, the Court was not asked to draw a delimitation line but, rather, to indicate the principles and rules of international law applicable to that delimitation, as well as to indicate the practical method for application of those principles and rules to the specific situation. The parties reserved for themselves the task of drawing the line. 766   Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 64, para. 79 (“there are other considerations which prevail over the effect of [Jerba Island’s] presence”) ; see also ibid., p. 85, para. 120. 767   The Court also gave weight to the general change in the direction of the Tunisian coast marked by the Gulf of Gabes. See ibid., pp. 86-88, paras. 122-127. 768   Ibid., p. 89, para. 129.

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In the Anglo/French Continental Shelf case, France and the United Kingdom had agreed that, where their two coasts were opposite each other throughout the English Channel, the continental shelf boundary in principle 769 should be a median line  . The parties disagreed, however, on the effect of the Channel Islands when drawing such a line. The United Kingdom argued that the median line formed from the mainland coasts should shift toward the Channel Islands and join up with a median line between the Channel Islands and the French coast. France argued that the median line should remain based on the mainland coasts (hence, in the middle of the English Channel) and that the Channel Islands should be “enclaved” with their own independent continental shelves 770. The tribunal agreed with the United Kingdom that the islands were not simply “rocks or small islands”, and that they possessed “a considerable population and a substantial agricultural and commercial economy” which made them “of a certain importance in their own right separately from the United Kingdom” 771. Further, the tribunal stated that if the islands were essentially a projection of the United Kingdom’s mainland, then the mid-Channel median line should “automatically deviate southwards in a long loop around the Channel Islands in the manner proposed by the United Kingdom” 772. Yet the tribunal ultimately agreed with France that the islands should instead be enclaved, because : “[t]he presence of these British islands close to the French coast, if they are given full effect in delimiting the continental shelf, will manifestly result in a 769   Delimitation of the Continental Shelf (UK, France), 1977, p. 52, para. 87. 770   For the parties’ respective arguments, see ibid., pp. 7587. 771   Ibid., p. 88, para. 184. 772   Ibid., p. 90, para. 189.

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substantial diminution of the area of continental shelf which would otherwise accrue to the French Republic. This fact by itself appears to the Court to be, prima facie, a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity.” 773 As such, the Court of Arbitration decided that “in order to maintain the appropriate balance between the two States in relation to the continental shelf as riparian States of the Channel with approximately equal coastlines,” the primary boundary between them shall be a midChannel median line, while the Channel Islands shall be enclaved so as to possess a 12-nautical-mile continental shelf (except in areas outside the competence of the tribunal) 774. In the Dubai/Sharjah Border Arbitration, the tribunal declined Sharjah’s request that its Abu Musa Island be given half-effect upon the equidistance line. The tribunal concluded that doing so would be disproportionate and inequitable, and instead enclaved the island within a 12-nautical-mile territorial sea 775. The same approach to enclaving islands, especially small islands, may be seen in several more recent decisions, such as with respect to Serpents’ Island in Maritime Delimitation in the Black Sea 776. Yet a court or tribunal may resist the enclaving of islands if doing so seems impractical or presents hazards for navigation. Thus, in Second stage of the proceedings   Op. cit. supra, footnote 769, p. 93, para. 196.   Ibid., pp. 94-95, paras. 201-202. 775   Dubai/Sharjah Border Arbitration, Award of 19 October 1981, pp. 671-678. 776   Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, p. 123, para. 188 (“Serpents’ Island should have no effect on the delimitation in this case, other than that stemming from the role of the 12-nautical-mile arc of its territorial sea”). 773 774

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between Eritrea and Yemen (Maritime Delimitation), the tribunal rejected Yemen’s proposal to establish an enclave of Eritrea’s Haycock Islands and South West Rocks (located near Yemen’s Hanish Islands), viewing it as hazardous to international shipping to do so. Rather, the tribunal established a median line passing between Eritrean and Yemeni islands 777. 5.  “Mushrooming” islands Although islands of one State located close to another State might be enclaved as described above, there is an alternative method. Namely, the island can be given an enclave surrounding most of the island, but with lines then drawn giving the island a continental shelf and exclusive economic zone extending away from the other State, thereby creating a maritime space that looks a bit like a mushroom. Such a solution recognizes the basic proposition that islands are entitled to full maritime zones, provided they do not fall within LOS Convention Article 121, paragraph 3. In the St. Pierre and Miquelon Arbitration 778, the arbitral tribunal was confronted with a situation where 777   Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), 1999, pp. 369-371, paras. 154159. 778   Case concerning Delimitation of Maritime Areas between Canada and France (St. Pierre and Miquelon), 1992, p. 1145. For commentary, see Louise de La Fayette, “The Award in the Canada-France Maritime Boundary Arbitration”, International Journal of Marine and Coastal Law, Vol. 8 (1993), p. 73 ; Gérard Bélorgey, Saint-Pierre-et-Miquelon et le droit de pêche dans l’Atlantique nord-ouest, La Documentation Française, 1993 ; Haritini Dipla, “La sentence arbitrale du 10 juin 1992 en l’affaire de la délimitation des espaces maritimes entre le Canada et la France”, Journal du droit international, Vol. 121 (1994), p. 653 ; Keith Highet, “St. Pierre and Miquelon Arbitration”, in Max Planck Encyclopedia of Public International Law, Vol. IX, op. cit., p. 456.

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two small French islands were located very close to the Canadian coast of Newfoundland. In essence, the two islands were surrounded by what otherwise would be part of Canada’s maritime zones. Thus, one possibility might have been to enclave the islands, such as according to France just a 12-nautical-mile territorial sea and leaving the remaining maritime spaces to Canada. Such an approach was urged by Canada, given that otherwise the islands would “encroach” upon the natural prolongation of Canada’s land territory 779 and given the relative size of the parties’ respective coastlines 780. The approach might have been warranted in light of the enclaving that occurred in the Anglo/French Continental Shelf case with respect to the United Kingdom’s Channel Islands, but the tribunal found otherwise, distinguishing that case based on the proximity of the United Kingdom’s mainland coast 781. By contrast, France argued in favour of an equidistance line drawn between the islands and the Canadian coast 782, which would have had the effect of cutting off a significant portion of that coast from the relevant maritime space. The tribunal rejected that approach as well. Instead, the tribunal, in order “to reach an equitable result” 783, accorded the islands to the west (in the direction of Canada) an extended enclave of 24 nautical miles, explaining that a “limited extension of the enclave beyond the territorial sea in this western sector would meet to some degree the reasonable expectations of France of title beyond the narrow belt of territorial sea, even if causing 779   Case concerning Delimitation of Maritime Areas between Canada and France (St. Pierre and Miquelon), 1992, p. 1167, paras. 58-59. 780   Ibid., p. 1167-1168, paras. 60-62. 781   Ibid., p. 1164, para. 42. 782   Ibid., p. 1163, para. 39. 783   Ibid., p. 1169, para. 66.

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some encroachment of certain Canadian seaward projections”784. The tribunal further held that France was “fully entitled to a frontal seaward projection towards the south until it reaches the outer limit of 200 nautical miles, as far as any segment of the adjacent southern coast of Newfoundland” 785. The reason for such a projection was that the “French islands have a coastal opening towards the south which is unobstructed by any opposite or laterally aligned Canadian coast” 786. The resulting shape of maritime space accorded to France was akin to a mushroom ; a circular area around the islands themselves along with a long and narrow corridor (about 10.5 nautical miles wide, based on the coastal front of the islands) heading seaward from the islands. 6.  Combination of methods More than one of these methods or approaches may be used to delimit a disputed area. For example, in the 2007 Territorial and Maritime Dispute case between Nicaragua and Honduras, the International Court rejected the equidistance line approach in favour of an anglebisector approach. According to the Court, drawing an equidistance line was problematic because of the difficulty in fixing base points along the coast given the instability of the mouth of the River Coco due to sediment accretion, the uncertain nature of small offshore islands and cays, and disagreements between the parties about 787 geographic coordinates  . Consequently, the Court determined coastal front lines for the two States, and then   Op. cit. supra, footnote 779, pp. 1169-1170, para. 68.   Ibid., p. 1170, para. 70. 786   Ibid. 787   See Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, pp. 743-745, paras. 280-281. 784 785

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drew an angle-bisector line from the land boundary out to sea 788. Yet islands then played a further role in prompting the Court to modify the angle-bisector line. The small maritime features of Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay, located outside the territorial seas of the two States – composed largely of sand and occasionally inhabited by fishers 789 – were regarded by the Court as islands under LOS Convention Article 121 790 and were accorded 12-nautical-mile territorial seas. Given their proximity to the angle-bisector line, the Court drew curved lines that deviated from the anglebisector line around the cays to grant Honduras a greater maritime entitlement 791. In doing so, the Court declined simply to enclave the islands on the Nicaraguan side of the bisector line inside a 3-nautical-mile territorial sea, as had been suggested by Nicaragua. A particularly complicated example is the 2012 judgment of the International Court in Territorial Dispute and Maritime Delimitation, where the Court at different steps in its process of delimitation used an equidistance line, the enclaving method, and the “mushrooming” method. The maritime space at issue lay between Nicaragua to the west and Colombia to the east 792. There were some maritime areas to the south and to the north that the Court was not expected to address, since they involved maritime spaces of other States (such as Honduras and Panama). The case featured the existence of a number of islands in the middle of the maritime space – some that were under Nicaraguan sovereignty, 788

298.

  Op. cit. supra, footnote 787, pp. 745-749, paras. 283-

  Ibid., p. 672, paras. 28-29.   Ibid., p. 702, para. 137. 791   Ibid., pp. 749-752, paras. 299-305. 792   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, p. 639 (Sketch Map No. 1). 789 790

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some that were under Colombian sovereignty, and some that were disputed between the two States. The case was further complicated because Colombia is not a party to the LOS Convention. Consequently, in deciding the case, the Court had to apply customary international law 793. As noted in Chapter III, doing so required considering whether certain provisions of the LOS Convention reflect customary international law, as well as identifying relevant general principles of law, such as “the principle that the land dominates the sea through the projection of the coasts or the coastal fronts” 794. It was uncontested that the islands closest to Nicaragua – such as the Miskitos Cays and the Corn Islands – were above water at high tide and that they were Nicaraguan territory 795. Further, at the preliminary measures phase, the Court confirmed that certain islands further to the east – the San Andrés, Providencia, and Santa Catalina islands – were under the sovereignty of Colombia 796. That still left, however, several other features in the relevant maritime area about which there was disagreement among the parties, both as to whether they were islands (and therefore capable of appropriation) and, if so, which State had sovereignty over the islands. Nicaragua argued that several features were not islands and that those features that were islands fell within 797 Nicaragua’s sovereignty  . As such, Nicaragua’s maritime claim before the Court argued in favour of “enclaving” Colombia’s three islands – the San Andrés, Providencia, and Santa Catalina islands – and otherwise   Op. cit. supra, footnote 792, p. 673, para. 137.   Ibid., p. 674, para. 140 (quoting Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009, p. 89, para. 77). 795   Ibid., p. 638, para. 21. 796   Ibid., paras. 22-23. 797   Ibid., p. 663 (Sketch Map No. 2). 793 794

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granting the maritime space to Nicaragua up to the point that it overlapped with the maritime zones generated by Colombia’s mainland coast. By contrast, Colombia argued that many of the features located in the maritime area were islands and were under Colombia’s sovereignty 798. Further, Colombia argued in favour of using Nicaragua’s islands to the west and Colombia’s islands to the east as base points for drawing an equidistance line between the two sets of islands that would delimit the maritime space. To decide the case, the Court first had to sort out the sovereignty issues : whether certain features were islands (i.e., naturally formed features above water at high tide) and, if so, which State had sovereignty over the islands. For example, as noted in Chapter III, the Court decided that most of the features on Quitasueño bank were lowtide elevations, but that one tiny feature (“QS 32”) was above water at high tide, and therefore was an island 799. Further, the Court found that Colombia has sovereignty over this island, as well as several other islands in the area (Alburquerque, Bajo Nuevo, East-Southeast Cays, Roncador, Serrana, and Serranilla) 800. Having addressed these issues, the Court turned to delimitation of the maritime space, relying on the three-stage approach articulated in its Black Sea judgment 801. At the first stage, the Court drew a provisional equidistance line between the Parties’ relevant coasts 802. To construct the line, the Court selected base points on Nicaragua’s fringing islands and on Colombia’s islands in and around the San Andrés Archipelago. Some of the smaller islands under Colombian sovereignty – which were at a distance from that archipelago – were   Op. cit. supra, footnote 792, p. 672 (Sketch Map No. 3).   Ibid., p. 645, paras. 37-38. 800   Ibid., p. 662, para. 103. 801   Ibid., p. 695, paras. 190 et seq. 802   Ibid., pp. 698-700, paras. 200-204. 798 799

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not used as base points by the Court, and thus the final provisional equidistance line differed from that advanced by Colombia. At the second stage, the Court considered whether any special circumstances existed which called for shifting the provisional equidistance line so as to achieve an equitable result 803. The Court decided that a shift in the line was appropriate for two reasons : (1) “the considerable disparity in the lengths of the relevant coasts, the ratio of Colombia’s relevant coast to that of Nicaragua being approximately 1 :8.2” ; and (2) “the overall geographical context, in which the relevant Colombian coast consists of a series of islands, most of them very small, and located at a considerable distance from one another, rather than a continuous coastline” 804. Indeed, an unadjusted equidistance line would effectively cut Nicaragua off from about 75 per cent of the area into which its coast projected, even though the Nicaraguan coast was much larger than the coast of the Colombian islands. Consequently, the Court decided to create a weighted line, whereby it gave a “weighting of one to each of the Colombian base points and a weighting of three to each of the Nicaraguan base points” 805. In other words, the Court constructed a new line further to the east “each point on which is three times as far from the controlling base point on the Nicaraguan islands as it is from the controlling base point on the Colombian islands” 806. This resulted in a series of curved lines, which the Court then “flattened” using geodetic lines 807. The Court decided that extending this weighted line straight to the north and to the south would not be   Op. cit. supra, footnote 792, pp. 700-715, paras. 205-238.   Ibid., p. 708, para. 229. 805   Ibid., pp. 709-710, para. 234. 806   Ibid. 807   Ibid., p. 710, para. 235. 803 804

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equitable, and therefore decided to draw lines heading east on latitudes, located to the north and south of Colombia’s main islands 808. This “mushrooming” method allowed Colombia’s islands to have a partial enclave around its main islands, plus a corridor of an exclusive economic zone and a continental shelf extending east from the partial enclave out to 200 nautical miles, while in parallel allowing Nicaragua to have such maritime zones extending east on both sides of Colombia’s corridor. At the same time, the Court fully enclaved two of Colombia’s small islands (Quitasueño and Serrana, located at a distance from Colombia’s main islands), to which the Court allocated just a 12-nautical-mile territorial sea 809. At the third stage, the Court considered whether this result was disproportionate by comparing the ratio of waters assigned to each State as compared with the ratio of their relevant coastlines 810. The ratio of waters in favour of Nicaragua over Colombia was 3.44 to 1, as compared with coastlines in favour of Nicaragua over Colombia of 8.2 to 1 811. The Court found there was no significant disproportionality meriting any change in the delimitation. Finally, the Court held that, as of 2012, it was unable to delimit the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from their coastlines 812. The reason it could not do so was that the Court lacked sufficient information, in part because Nicaragua had only submitted “preliminary information” on its extended continental shelf to the Commission on the Limits of the Continental Shelf under LOS   Op. cit. supra, footnote 792, p. 713, para. 237.   Ibid., pp. 713-715, para. 238. 810   Ibid., pp. 715-717, paras. 239-247. 811   Ibid., p. 716, para. 243. 812   Ibid., pp. 665-670, paras. 113-131. 808 809

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Convention Article 76 813. The Court’s apparent deference to the process taking place before the Commission is interesting given that Colombia is not a party to the LOS Convention and the Court was engaged in a customary international law analysis, not an analysis under the Convention 814. In any event, after issuance of the Court’s 2012 judgment, Nicaragua in September 2013 filed a new case against Colombia at the Court asking it to address Nicaragua’s extended continental shelf claim, which the Court found in 2016 was within its jurisdiction even in the absence of action by the Commission 815. Further, in November 2013, Nicaragua instituted another case against Colombia in which it alleged that Colombia violated several international legal obligations regarding Nicaragua’s sovereign rights and maritime zones as declared by the Court in its 2012 judgment 816. C.  Rights and Obligations Pending Resolution of Overlapping Claims Normally, a State with sovereignty over an island has sovereign rights to explore and exploit the natural resources in the maritime spaces relating to that island. But what if the maritime space at issue overlaps with claims of another State which have not yet been resolved ? Such overlapping claims may arise with respect to the territorial sea, the exclusive economic zone, or the   Op. cit. supra, footnote 792, p. 669, para. 127.   See op. cit. supra, footnote 792, separate opinion of Judge Donoghue, p. 758, para. 26. 815   Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Judgment of 17 March 2016, para. 114, available at : http :// www.icj-cij.org. 816   Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Judgment of 17 March 2016, available at : http ://www.icj-cij.org. 813 814

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continental shelf (including the extended continental shelf). Moreover, contested claims to the maritime areas may arise when sovereignty over the island itself is also contested, such that two States lay claim to the exact same maritime zones. Various studies have sought to address the rights and obligations of States with respect to overlapping maritime claims 817. The following discussion identifies seven basic rules that every State is expected to follow, informed both by the law and practice associated with maritime spaces, but also by the law and practice associated with contested land boundaries, since there appears to be some cross-over between the two areas. It is noted that these rules are relevant when there exists a dispute over maritime boundary delimitation, but they are not delimitation rules ; they are rules oriented toward the duties of States to resolve disputes peacefully. First, every State must conduct itself in good faith with respect to its claimed rights in the contested maritime space. This “good faith” rule operates as a background rule of international law, but may also be seen in LOS Convention Article 300, which reads : “State Parties shall fulfil in good faith the obligations assumed under this Convention and shall exer817   See, e.g., Rainer Lagoni, “Interim Measures Pending Maritime Delimitation Agreements”, American Journal of International Law, Vol. 78 (1984), p. 357 ; David Anderson and Youri van Logchem, “Rights and Obligations in Areas of Overlapping Maritime Claims”, in Jayakumar, Koh and Beckman (eds.), op. cit., p. 192 ; Youri van Logchem, “The Scope for Unilateralism in Disputed Maritime Areas”, in Schofield, Lee and Kwon (eds.), op. cit., p. 175 ; Report on the Obligations of States under Articles 74 (3) and 83 (3) of UNCLOS in respect of Undelimited Maritime Areas, British Institute of International and Comparative Law, 2016, available at : http :// www.biicl.org/documents/1192_report_on_the_obligations_ of_states_under articles_743_and_833_of_unclos_in_respect_ of_undelimited_maritime_areas.pdf ?showdocument=1.

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cise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of rights.” 818 An analogy to how this rule operates in maritime spaces can be seen in case law relating to land territory. In its 2002 Cameroon v. Nigeria judgment, the International Court determined that Nigeria had improperly claimed and occupied territory of Cameroon, including the Bakassi Peninsula and areas in the Lake Chad region 819. At the same time, the Court decided that the injury suffered by Cameroon – in the form of destruction of property and environmental harm – as a result of the occupation was sufficiently addressed by the delimitation effected by the Court and by the Court’s order to withdraw its troops 820. In all likelihood, the judges were mostly concerned with the formulation of a remedy that would generally satisfy the overall demands of the prevailing party without overburdening the other party with excessive costs. As such, the Court tried to contribute to the creation of a non-confrontational environment in which the parties could move to a speedy implementation of the core objective of the judgment, which was the delimitation of territory. At the same time, the Court was likely influenced by a sense of whether Nigeria acted wrongfully. Counsel for Nigeria argued to the Court that if it ultimately assigned   LOS Convention, Art. 300.   Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), ICJ Reports 2002, p. 303. 820   Ibid., p. 452, para. 319 (“In the circumstances of the case, the Court considers moreover that, by the very fact of the present Judgment and of the evacuation of the Cameroonian territory occupied by Nigeria, the injury suffered by Cameroon by reason of the occupation of its territory will in all events have been sufficiently addressed. The Court will not therefore seek to ascertain whether and to what extent Nigeria’s responsibility to Cameroon has been engaged as a result of that occupation”). 818 819

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the disputed areas to Cameroon, doing so should not lead to a determination of State responsibility by Nigeria, because Nigeria was administering those territories in good faith and in the honest belief that those areas were under its sovereignty 821. This may be contrasted with a decision reached by Eritrea-Ethiopia Claims Commission, which found that Eritrea willfully invaded a contested area that had been peacefully administered by Ethiopia for many years, and which awarded significant amounts of compensation to Ethiopia for loss, damage and injury, even with respect to areas that were ultimately determined to be Eritrean territory by the Eritrea-Ethiopia Boundary Commission 822. As applied to a contested maritime space, any State conduct in that space may be assessed by a court or tribunal, for purposes of State responsibility, in light of whether the State was operating in a good faith, albeit mistaken belief as to the location of the maritime boundary. In a contested maritime space, it is entirely possible that both States are operating in good faith ; the maritime boundary line often is not obvious and there is almost always some margin of appreciation as to how it should be drawn. As such, if conduct within the contested maritime area is ultimately shown to be mistaken, but undertaken in good faith, a court or tribunal may not view such conduct as engaging rules on State responsibility. By contrast, the result may be different if the conduct results from a State’s lack of due diligence or malicious conduct, or the evidence shows that the State knew or should have known that it was 821   Op. cit. supra, footnote 819, Verbatim Record, Public Sitting held on Friday 15 March 2002, CR 2002/20, p. 30, para. 24. 822   See Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1-8, Decision of 19 December 2005, Reports of International Arbitral Awards, Vol. XXVI, p. 457.

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operating in what was plausibly another State’s maritime space. Second, with respect to overlapping claims in the territorial sea, every State normally must limit its activities to its side of the median line. As previously noted, LOS Convention Article 15 provides that in situations where there are overlapping claims, “neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line . . .” 823. This rule is fairly straightforward, though it does not apply “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way that is at variance therewith” 824. Third, pending conclusion of an agreement with respect to overlapping claims in the exclusive economic zone or the continental shelf, every State has an obligation to make every effort to seek an interim solution. Paragraph 3 of LOS Convention Articles 74 and 83 (addressing respectively the exclusive economic zone and the continental shelf) provides in part that : “Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature. . . . Such arrangements shall be without prejudice to the final delimitation.” 825 As previously noted in this chapter, international courts and tribunals generally have assumed that Articles 74 and 83 express rules of customary international law 826. The obligation to seek to negotiate an interim solution is a positive obligation imposed upon States Parties.   LOS Convention, Art. 15.   Ibid., Art. 15.   Ibid., Arts. 74 (3) and 84 (3). 826   See supra this chapter, Sec. A. 823 824 825

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According to the Guyana v. Suriname arbitral tribunal, this text indicates “the drafters’ intent to require of the parties a conciliatory approach to negotiations, pursuant to which they would be prepared to make concessions in the pursuit of a provisional arrangement” 827. Indeed, such language implicitly recognizes the importance of avoiding wholesale suspension of activities in the disputed area, so long as doing so does not affect the ability to reach a final agreement 828. The obligation is one of conduct rather than result ; the State is expected to make every effort to conclude a provisional arrangement, but there is no requirement that such efforts be successful 829. The obligation does not impose on the parties the obligation to enter into any particular agreement or to adopt any specific solution, or any solution at all, but does require some action by them. Examples of actions likely to be contrary to this aspect of paragraph 3 of LOS Convention Articles 74 and 83 may be seen in the analysis of the Guyana v. Suriname tribunal. These include 830 : refusing to send a delegation or a representative to agreed meetings ; failing to respond to a proposal by the other State ; and in some cases not informing the other State about proposed actions in the contested area. On the other hand, conduct that could help to satisfy this requirement might include : efforts to commence negotiations with the other party ; accepting the invitation of the other party to negotiate ; seeking the co-operation of the other party when undertaking 827   Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), 2007, p. 130, para. 461. 828   Ibid. 829   Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), ICJ Reports 2002, p. 424, para. 244. 830   Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), 2007, pp. 133-136, paras. 471-478.

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proposed activities ; and offering to share the results and benefits of activities in the contested area. The interim solution need not be in the form of a binding international agreement, although such agreement is certainly possible. Further, the content of the provisional solution may vary considerably, ranging from mutually-agreed restraint from undertaking exploitation activities in a contested area, to the establishment of a provisional boundary, to co-operation in the disputed area through joint development 831. Indeed, joint development zones on a provisional basis may be found in many parts of the world involving island disputes. For example, Barbados and Guyana concluded in 2003 a provisional agreement that established, for an area where their exclusive economic zones overlapped, a “co-operation zone for the exercise of joint jurisdiction, control, management, development, and exploration and exploitation of living and non-living natural resources, as well as all other rights and duties established in” the LOS Convention 832. Likewise, Nigeria and the island nation of São Tomé and Príncipe concluded in 2001 a joint development agreement on a provisional basis that allows for exploitation of seabed resources in an area where their exclusive economic zones overlap. Under the agreement, there exist joint bodies charged with managing the zone, including with respect to the sharing of revenue, the application of laws and regulations, and 831   See Anderson and van Logchem, “Rights and Obligations in Areas of Overlapping Maritime Claims”, in Jayakumar, Koh and Beckman (eds.), op. cit., p. 206. 832   Exclusive Economic Zone Co-operation Treaty between the State of Barbados and the Republic of Guyana concerning the Exercise of Jurisdiction in Their Exclusive Economic Zones in the Area of Bilateral Overlap within Each of Their Outer Limits and beyond the Outer Limits of the Exclusive Economic Zones of Other States, done at London on 2 December 2003, United Nations, Treaty Series, Vol. 2277, p. 201.

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environmental protection 833. While these are “provisional arrangements”, that does not mean they are necessarily of a short duration ; indeed, by its terms, the Nigeria and São Tomé and Príncipe agreement is to remain in force for 45 years 834. Whatever provisional solution is achieved, paragraph 3 of LOS Convention Articles 74 and 83 is clear that the solution does not prejudge the final settlement of the dispute, and thus a State cannot acquire, even over a long period of time, permanent rights by entering into such a provisional arrangement 835. Fourth, pending conclusion of an agreement with respect to overlapping claims in the exclusive economic zone or the continental shelf, a State has a further “make every effort” obligation. Paragraph 3 of LOS Convention Articles 74 and 83 also provides in part that : “Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort . . . not 833   Treaty between the Federal Republic of Nigeria and the Democratic Republic of São Tomé and Príncipe on the Joint Development of Petroleum and Other Resources, in respect of Areas of the Exclusive Economic Zone of the Two States, done at Abuja on 21 February 2001, available at : http ://www. un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/ TREATIES/STP-NGA2001.PDF, Art. 51. 834   Ibid. For a discussion of this joint development zone, but also broader State practice on this issue, see J. Tanga Biang, The Joint Development Zone between Nigeria and Sao Tome and Principe : A Case of Provisional Arrangement in the Gulf of Guinea – International Law, State Practice and Prospects for Regional Integration, Division for Ocean Affairs and the Law of the Sea, UN Office of Legal Affairs, 2010, available at : http ://www.un.org/depts/los/nippon/unnff_ programme_home/fellows_pages/fellows_papers/tanga_0910_ cameroon.pdf. 835   See Lagoni, “Interim Measures Pending Maritime Delimitation Agreements”, op. cit., p. 359.

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to jeopardize or hamper the reaching of the final agreement.” 836 This might be characterized as a negative obligation ; it requires States to refrain from engaging in unilateral action that may aggravate a dispute. At the same time, it is also an obligation of conduct, not of result ; States must exercise due diligence in this regard, but ultimately may not succeed. Importantly, this obligation does not require a complete moratorium on exploration or even on exploitation activities in areas claimed in good faith by a State 837. Rather, it aims at balancing two considerations : a desire not to prevent all unilateral activities pending final settlement of the boundary ; and a desire to avoid, as far as possible, any unilateral action that could worsen the dispute and could threaten international peace and security. In the Guyana v. Suriname Award, the tribunal focused largely on whether the Parties’ unilateral actions would cause permanent physical change to the marine environment (“seismic exploration” versus “exploitation of oil and gas reserves”) 838, an approach that appears to have been inspired by 839 the International Court’s decision on interim measures in Aegean Sea Continental Shelf. In the Aegean Sea Continental Shelf case, Greece had sought an interim order requiring that both Greece and Turkey not engage in exploration activities in the Aegean Sea, saying that Turkey’s activities threatened the exclusivity of Greece’s rights with respect to the extent and location of seabed resources. The Court was not applying the LOS Convention ; rather, it determined   LOS Convention, Arts. 74 (3) and 84 (3).   Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), 2007, pp. 131-132, para. 465. 838   Ibid., p. 132, para. 467. 839   Ibid., pp. 132-133, paras. 468-469. 836 837

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whether conditions existed meriting interim measures of protection before deciding on matters of jurisdiction or the merits in the case. The Court said that interim measures of protection are only warranted to ensure that States do not undertake activities that cause “physical damage to the seabed or subsoil” (as opposed to exploratory activity such as seismic exploration), do not establish installations on the continental shelf (as opposed to activities of a “transitory character”), and do not engage in actual appropriation or other use of natural resources 840. With this standard in mind, the Guyana v. Suriname tribunal found that both Guyana and Suriname had violated their obligations under paragraph 3 of Articles 74 and 83 of the LOS Convention 841. According to the tribunal, Guyana failed to exercise the necessary selfrestraint by authorizing exploratory drilling by an oil rig in the contested waters, while Suriname had failed by sending a coast guard vessel to order the rig to leave the area, stating that if it did not do so, unspecified “consequences” would ensue 842. Yet perhaps physical damage should not be the sole focus of the inquiry. In the 2015 Côte d’Ivoire/Ghana order by a special chamber of the International Tribunal for the Law of the Sea (another decision concerning interim measures of protection), the chamber declined to order Ghana to suspend existing oil exploration and exploitation activities in the disputed maritime area 843. 840   Aegean Sea Continental Shelf (Greece v. Turkey), Interim Protection, Order of 11 September 1976, ICJ Reports 1976, p. 11, para. 30. 841   Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), 2007, p. 139, para. 488 (3). 842   Ibid., pp. 137-138, paras. 479-484. 843   Dispute concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case No. 23), Order on Provi-

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Thus, the chamber allowed actual exploitation of shelf resources to continue even within a disputed area, apparently because suspending such activities would cause prejudice to Ghana (Ghana had been engaged in such exploitation before Côte d’Ivoire claimed that the area was part of its continental shelf) and could cause harm to the marine environment 844. At the same time, the chamber ordered that : “(a) Ghana shall take all necessary steps to ensure that no new drilling either by Ghana or under its control takes place in the disputed area . . . [(which apparently included new drilling relating to the existing field)] ; (b) Ghana shall take all necessary steps to prevent information resulting from past, ongoing or future exploration activities conducted by Ghana, or with its authorization, in the disputed area that is not already in the public domain from being used in any way whatsoever to the detriment of Côte d’Ivoire [(thus apparently allowing Ghana to continue to gather such information so long as it is not so used)] ; (c) Ghana shall carry out strict and continuous monitoring of all activities undertaken by Ghana or with its authorization in the disputed area with a view to ensuring the prevention of serious harm to the marine environment ; (d) [both p]arties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end ; [and] (e) [both p]arties shall pursue cooperation and refrain from any unilateral action that might lead to aggravating the dispute.” 845 sional Measures of 25 April 2015, Special Chamber of the International Tribunal for the Law of the Sea, pp. 20, 21-23, paras. 99-100, 108. 844   Ibid. 845   Ibid., pp. 21-22, para. 108 (1).

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The findings in both the Aegean Sea and Côte d’Ivoire/ Ghana cases are important reference points, but it should be kept in mind that the standard being applied with respect to interim measures of protection is not the same standard as exists under LOS Convention Articles 73 and 84. In particular, a court or tribunal may refrain from ordering interim measures out of a belief that any wrongful act may be later remedied through compensation ; the tribunal is not determining whether or not the act is wrongful in the first place 846. At the same time, if an action is egregious enough to satisfy the standard applied with respect to interim measures of protection, it would appear also then to meet the standard set under the LOS Convention 847. In any event, in striking the right balance under LOS Convention Articles 73 and 84 between provisionally pursuing activities and refraining from aggravating the dispute, it appears that context is very important. While an objective criterion (permanent versus non-permanent effects from the activities) may be attractive, such an approach does not sufficiently take into account that, depending on the particular situation, an act with nonpermanent effects could potentially trigger a forceful response by the other State, while an act with permanent effects might be viewed as harmless. For example, even exploration of resources, in some situations, might 846   See generally Shabtai Rosenne, Provisional Measures in International Law : The International Court of Justice and the International Tribunal for the Law of the Sea, Oxford University Press, 2005. 847   Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), 2007, p. 156, para. 469 (“Activities that would meet the standard required for the indication of interim measures, in other words, activities that would justify the use of an exceptional power due to their potential to cause irreparable prejudice, would easily meet the lower threshold of hampering or jeopardising the reaching of a final agreement”).

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aggravate the dispute, especially if this is undertaken without any previous notification by the exploring State. The application of this rule to fishing activities entails different elements. Fish are a renewable resource if harvested in a sustainable manner, so it may be possible for one (or both) claimant States to engage in fishing in the disputed area if done sustainably. If such harvesting does not occur, then an economic resource is being wasted. In Guyana v. Suriname, the tribunal stated that “international courts and tribunals should . . . be careful not to stifle the parties’ ability to pursue economic development in a disputed area during a boundary dispute, as the resolution of such disputes will typically be a time-consuming process” 848. Further, the exercise of jurisdiction in the disputed area by one of the States may be desirable as a means of avoiding a situation whereby the vessels of third States are engaging in unsustainable activities that destroy the fish stocks. To the extent that the standards applied to interim measures of protection are relevant, it might be noted that the International Court, in its 1972 interim measures order in Fisheries Jurisdiction (United Kingdom v. Iceland) indicated that States should not undertake fishing activities that result in “irreparable prejudice” 849. As such, it would appear that exploitation of fish can be undertaken by one or both of the disputing States, so long as it is done sustainably. Fifth, there are limits on using force or threatening to use force against another claimant State in contested maritime spaces. Under international law, a State may not use force or threaten to use force against another State’s territorial integrity or political independence 850.   Op. cit. supra, footnote 847, para. 470.   Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, Order of 17 August 1972, ICJ Reports 1972, p. 16, para. 21. 850   UN Charter, Art. 2 (4). 848 849

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LOS Convention Article 301 reinforces this general rule by stating : “In exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.” 851 This rule has been applied even in contested waters, where a State believes that it has sovereign rights in those waters while another State does not. Thus, in Guyana v. Suriname, the tribunal applied such a rule in a situation where Guyana claimed that Suriname had wrongfully used force in the disputed maritime space 852. The tribunal accepted the argument “that in international law force may be used in law enforcement activities provided that such force is unavoidable, reasonable and necessary” 853. Yet the tribunal asserted that Suriname’s action of sending a patrol vessel to order the oil rig to leave the contested waters was an unlawful threat of force, apparently because of the circumstances in which the incident occurred (the rig was approached at midnight and given twelve hours to leave ; the rig was told if it didn’t leave “the consequences would be yours” ; the men on the rig perceived that this meant military force would be used if they did not leave). While the tribunal was not clear in identifying what would have been acceptable “law enforcement activity”   LOS Convention, Art. 301.   Unfortunately, the Tribunal also did not discuss the fact that the action was not taken against a Guyana vessel, but against a private oil company rig flagged to a third State that had a contract with Guyana. 853   Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname (Guyana v. Suriname), 2007, p. 126, para. 445. 851 852

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by Suriname, the implication may be that the patrol vessel could have instructed the rig to leave the area without issuing a vague threat and, if the rig did not leave, perhaps the patrol vessel could have boarded the rig, inspected its papers, and ultimately arrested the rig operators if they did not comply with the instructions. In any event, the standard applied was that an enforcement activity should only use “such force [as] is unavoidable, reasonable and necessary”. The International Tribunal for the Law of the Sea articulated a comparable standard in the Saiga No. 2 case, when it stated : “Although the Convention does not contain express provisions on the use of force in the arrest of ships, international law, which is applicable by virtue of article 293 of the Convention, requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.” 854 The Guyana v. Suriname tribunal cited to the EritreaEthiopia Claims Commission decision relating to Eritrea’s use of force against Ethiopia in 1998. That Commission explained that, if the law were to recognize a State’s ability to use force in a contested area peacefully administered by another State based solely on the first State’s claim of sovereignty, the international prohibition on the use of force would be significantly weakened. The Commission noted that “border disputes between States are so frequent that any exception to the prohibition of the threat or 854   The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea) (Case No. 2), Judgment of 1 July 1999, ITLOS Reports 1999, p. 10 at pp. 61-62, para. 155.

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use of force for territory that is allegedly occupied unlawfully would create a large and dangerous hole in a fundamental rule of international law” 855. Sixth, every State may exercise permissible countermeasures against another State’s violation of its obligations. If one of the two States advancing claims to a contested area is acting wrongfully – such as by taking acts that aggravate the dispute or by refusing to negotiate a provisional arrangement – the other State may exercise permissible countermeasures. These countermeasures, which can consist of non-compliance with the LOS Convention, should be consistent with rules on countermeasures, notably those formulated by the International Law Commission in 2001 in its Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Articles) 856. Among other things, the purpose of the countermeasures must be to induce compliance by the other State ; advance notice must be given of the intent to take countermeasures (thereby giving the other State an opportunity to come into compliance) ; and they must be taken in such a way as to permit resumption of performance if the other State comes into compliance. Moreover, the countermeasures must be proportionate to the other State’s non-compliance, and cannot involve a use or threat to use force, or violate human rights or jus cogens. Countermeasures may be adopted without previous recourse to dispute settlement under the LOS Convention or otherwise but, according to the ILC Articles, once the dispute is pending before a court or tribunal, States are precluded from undertaking or 855   Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1-8, 2005 , p. 465, para. 10. 856   See, e.g., Draft Articles on Responsibility of States for Internationally Wrongful Acts, Arts. 49-54, in Yearbook of the International Law Commission, 2001, Vol. II, Part Two, UN doc. A/CN.4/SER.A/2001/Add.1, p. 26.

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continuing countermeasures if the other State’s internationally wrongful act has ceased 857. Seventh, third States are obligated not to knowingly aid or assist a State that is acting wrongfully with respect to contested maritime spaces. If one of the two States advancing claims to a contested area is acting wrongfully, for example by acting in a way that aggravates the dispute or by refusing to negotiate a provisional arrangement, then third States have an obligation not to aid or assist the State acting wrongfully. Article 16 of the ILC Articles provides : “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if : (a) That State does so with knowledge of the circumstances of the internationally wrongful act ; and (b) The act would be internationally wrongful if committed by that State.” 858 Finally, it should be noted that a particular problem that can arise with respect to islands is that it may not be apparent, at the outset, whether there is in fact a dispute concerning “delimitation”, thereby implicating Articles 74 and 83, and, if there is such a dispute, how the rules indicated above are to be applied. This problem exists when there is uncertainty as to sovereignty over the island or as to whether the island is capable of generating an exclusive economic zone or continental shelf. The British Institute of International and Comparative Law identified five different scenarios where such uncertainties may complicate the application of rules in this area : “i.  Two States dispute the status of a feature ; for example one (usually the State with sovereignty) argues that the feature is an island and thus capable of 857 858

  Op. cit. supra, footnote 856, Art. 52 (3).   Ibid., Art. 16.

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generating a 200 [nautical mile] zone while the other argues that it is a rock with no maritime entitlement ; either way, the two States have a maritime boundary which needs to be delimited ; ii. As for (i) except that the two States have a maritime boundary only if the feature is determined to be an island ; if it is a rock there is no overlap of maritime entitlements ; iii. Two States claim sovereignty over the same island ; whichever way sovereignty is determined, the two States have a maritime boundary which needs to be delimited ; iv. Two States claim sovereignty over the same island ; if sovereignty is determined to belong to State A, the two States have a maritime boundary which needs to be delimited, whereas if sovereignty belongs to State B there is no maritime boundary between them[ ;] v.  Two adjacent States dispute the position of the land boundary between them. Each claims entitlement to the maritime zone generated by the same coastal land area. Whichever way that dispute is resolved, the two States have a maritime boundary which needs to be delimited[.]” 859 One aspect of the problem is that the two States may not even agree that there is a maritime “delimitation” dispute, such as in (ii) and (iv), thus making it unclear whether LOS Convention Articles 74 and 83 are applicable. Another aspect is that, even if there is agreement that a “delimitation” dispute exists, it may be unclear how broadly that dispute sweeps. For example, it seems doubtful that the obligation to seek provisional arrangements or to avoid aggravating the delimitation dispute 859   Report on the Obligations of States under Articles 74 (3) and 83 (3) of UNCLOS in Respect of Undelimited Maritime Areas, op. cit., p. 33, para. 112.

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includes an obligation to address an issue of sovereignty on a provisional basis, or to refrain from acts that seek to establish such sovereignty. Rather, the obligation to seek provisional arrangements in LOS Convention Articles 74 and 83 relates to issues concerning the maritime “delimitation” dispute, not a dispute over sovereignty. Yet it may be difficult to disentangle the two given that acts intended to establish a sovereign claim might include pursuing acts in the maritime space. D. Conclusion This chapter discussed how islands will often feature in disputes concerning the delimitation of maritime zones. The location of a State’s island is often a threshold issue : it may be located close to the State’s mainland coast, raising questions as to whether it should be used to provide base points for delimiting maritime zones between that mainland and another State. If the State’s island is located further out to sea, the maritime zones the island itself generates may also overlap with the maritime zones of another State. While an equidistance line may be a standard way of establishing a maritime boundary between two adjacent or opposite States, agreeing on such a boundary may be difficult in the presence of islands, especially when a State’s islands are located on the “wrong side” of such an equidistance line when drawn from two mainlands. If an equidistance approach is used, lesser effect may be given to small islands in relation to larger islands or a mainland. Yet the presence of islands may prompt partial or complete abandonment of the equidistance approach in favour of alternative methods of delimitation, such as through an angle-bisector line or by enclaving the island partially or fully. Temporal elements of international law relating to islands have already featured, to a degree, in the preceding chapters. Chapter II considered whether the

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human habitation or economic life of an island needed for the generation of maritime zones was fixed or might change over time, while Chapter III noted that sovereign title to an island may be gained or lost over time. Chapter IV’s discussion of the legal consequences of islands in boundary rivers noted the unstable nature of such islands, which can be formed, broken down, and reformed over time by the fluvial forces of the river. The next chapter discusses a wider array of legal issues that can arise from changes in islands over time, with attention especially given to the effects of global climate change on islands.

CHAPTER VIII

CHANGES IN ISLANDS OVER TIME Although usually imperceptible to the human eye, the land is constantly changing under the influence of the Earth’s normal geophysical forces, in particular the force of water that causes land both to increase in size and to erode. There are different ways that islands may increase or decrease in size, which in turn can have important collateral legal consequences. A.  Ways that Islands Can Change over Time Islands can be affected over time through normal processes of accretion or erosion. “Accretion” is the general term used for increases in land through new layers or formations, though lawyers often use the term “alluvion” when describing the increase in land through deposits of sediment by rivers. “Erosion” is typically used to describe decreases in the land through washing away of soil. However described, islands can be created or destroyed in rivers or lakes, or in delta areas as the river flows into the ocean. Of course, these new formations may be only an internal modification of existing State territory, such as when an island is formed within a river that is totally within the territory a State. Yet when new formations appear along the boundary of States, issues may arise regarding sovereignty over the formation and whether the formation has an effect with respect to the location of the boundary. Further, if through accretion or erosion the coastline of a State is reshaped so as to change

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the location of its baselines, this can have a collateral effect on the maritime zones of the State 860. Separate from the steady but long-term processes of accretion and erosion, more dramatic events can create and destroy islands, notably volcanic activity 861. For example, volcanic activity off the coast of the Azores Islands in 1811 resulted in the creation of a small island. The captain of a British warship, who was the first person to land on the island, called it Sabrina Island (after the name of his ship), and claimed it for Britain. That claim was not well received by Portugal, and the two States were headed towards a significant diplomatic dispute when the island suddenly collapsed and fell back into the sea 862. Similarly, in 1831, a volcanic island suddenly emerged about 27 nautical miles south of the island of Sicily 863. Once again, it was a British warship on patrol that first spotted the island, naming it Graham Island, and claiming sovereignty for Britain. Here, too, other States objected, including the King of Sicily, no doubt realizing the strategic significance of the island’s location for navigation in the Mediterranean. In any event, once again the diplomatic row was cut short when the island 860   See Haritini Dipla, “New Islands”, in Max Planck Encyclopedia of Public International Law, Vol. VI, op. cit., p. 414. 861   See Sébastien Touzé, “Les îles volcaniques émergées : règles d’acquisition territoriale et régime de délimitation maritime”, Annuaire français de droit international, Vol. 52 (2006), p. 455. 862   See S. Tillard, “A Narrative of the Eruption of a Volcano in the Sea off the Island of St. Michael”, Philosophical Transactions of the Royal Society of London, Vol. 102 (1812), p. 152 ; Walter Frederick Walker, The Azores : Or Western Islands : A Political, Commercial and Geographic Account, Trumber & Company, 1886, p. 63. 863   See Horace Greeley and Park Benjamin (eds.), “Volcanic Islands in the Mediterranean”, The New Yorker, Vol. VII (1839), p. 52.

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soon sank back beneath the water. In 2003, the United Kingdom expressed doubt that its claim remained valid 864. Volcanic activity, of course, continues today across the globe in maritime spaces, as may be seen from Hawaii in the Pacific Ocean to Jabal al-Tair Island in the Red Sea 865. Similar appearances and disappearances of islands have continued 866. The most significant contemporary issue for changes in islands, however, arises from the effects of global climate change, which is causing a rise in sea levels due to the expansion of ocean water and the melting of glaciers 867. The melting of ice may lead to the 864   “United Kingdom Materials on International Law 2003”, British Yearbook of International Law, Vol. 74 (2004), pp. 565, 688 (reprinting a written answer from the UK Minister for Europe stating : “We doubt whether the 1831 claim subsists and have never sought to revive it”). 865   See, e.g., US Geological Survey, Hawaiian Volcano Observatory, available at  : http  ://hvo.wr.usgs.gov (last accessed 11 August 2016) ; Smithsonian Institution Global Volcanism Program, “Jebel at Tair”, Vol. 4.5.0, in E. Venzke (ed.), Volcanoes of the World, 2013. 866   See, e.g., Pierre-Marie Dupuy, “Note sur la disparition récente de deux groupements insulaires en Méditerranée orientale”, Annuaire de droit maritime et aérien, Vol. 7 (1983), p. 209 ; José Luís Jesus, “Rocks, New-born Islands, Sea Level Rise and Maritime Space”, in J. Frowein et al. (eds.), Verhandeln für den Frieden – Negotiating for Peace : Liber Amicorum Tono Eitel, Springer, 2003, p. 597. 867   See Rosemary Rayfuse, “Climate Change and the Law of the Sea”, in Rosemary Rayfuse and Shirley V. Scott (eds.), International Law in the Era of Climate Change, Edward Elgar, 2012, p. 147 ; Yukari Takamura, “Climate Change and Small Islands Claims in the Pacific”, in Oliver C. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting (eds.), Climate Change : International Law and Global Governance, Vol. 1, Nomos, 2013, p. 657 ; Lilian Yamamoto and Miquel Esteban, Atoll Island States and International Law : Climate Change Displacement and Sovereignty, Springer, 2014 ; Alan Boyle, “Climate Change, Ocean Governance and UNCLOS”, in Jill Barrett and Richard Barnes (eds.), Law of the Sea : UNCLOS as a Living Treaty, British Institute of International and

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emergence of new islands, such as off Greenland and Antarctica. More significantly, many existing islands, including certain Pacific island States, are facing serious threats from the rise of sea levels and the increase in the intensity and frequency of storms, waves, and tsunamis. One recent study found that over the past 80 years in the Solomon Islands alone, five vegetated reef islands have vanished, while a further six islands have experienced severe shoreline recession 868. Moreover, such recession in some instances has destroyed villages, forcing residents to relocate. If these trends continue, it appears entirely likely that not only will more islands disappear, but entire States, such as Kiribati, Maldives, and Marshall Islands 869, might disappear 870. Comparative Law, 2016, p. 211 ; International Law Association, Committee on International Law and Sea Level Rise, Report, Johannesburg Conference, op. cit. 868   Albert Simon et al., “Interactions between Sea-level Rise and Wave Exposure on Reef Island Dynamics in the Solomon Islands”, Environmental Research Letters, Vol. 11 (2016), p. 8. 869   See, e.g., Michael Gagain, “Climate Change, Sea Level Rise, and Artificial Islands : Saving the Maldives’ Statehood and Maritime Claims through the ‘Constitutions of the Oceans’ ”, Colorado Journal of International Environmental Law and Policy, Vol. 23 (2012), p. 77 ; Kevin Jaschik, “Small States and International Politics : Climate Change, the Maldives and Tuvalu”, International Politics, Vol. 51 (2014), p. 272. 870   See generally Tiffany T. V. Duong, “When Islands Drown  : The Plight of ‘Climate Change Refugees’ and Recourse to International Human Rights Law”, University of Pennsylvania Journal of International Law, Vol. 31 (2010), p. 1239 ; Jane McAdam, “ ‘Disappearing States’, Statelessness and the Boundaries of International Law”, in Jane McAdam (ed.), Climate Change and Displacement : Multidisciplinary Perspectives, Hart Publishing, 2010, p. 105 ; Rachel Kendall, “Climate Change as a Security Threat to the Pacific Islands”, New Zealand Journal of Environmental Law, Vol. 16 (2012), p. 83 ; Sheila C. McAnaney, “Sinking Islands ? : Formulating a Realistic Solution to Climate Change Displacement”, New York University Law Review, Vol. 87 (2012), p. 1172 ; Miguel Lamas Pardo, “Micronaciones en islas artificiales según el Derecho

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B.  Legal Consequences of Changes over Time While much has been written in recent years about the problems facing islands due to changes over time, there is little in the way of settled international law that clarifies the legal consequences that flow from such changes. LOS Convention Article 121, for example, provides no guidance with respect to the legal consequences from the emergence or disappearance of islands. As such, the remainder of this chapter touches upon several issues that arise in this context, but cannot provide definitive answers to the challenges those issues present. 1.  Creation of new islands First, if a new island is created in a State’s internal rivers or lakes, or within its territorial sea, then it is Marítimo e Internacional”, Anuario de derecho maritime, Vol. 29 (2012), p. 197 ; Michael B. Gerrard and Gregory E. Wannier (eds.), Threatened Island Nations : Legal Implications of Rising Seas and a Changing Climate, Cambridge University Press, 2013 ; Gregory E. Wannier and Michael B. Gerrard, “Disappearing States : Harnessing International Law to Preserve Cultures and Society”, in Ruppel, Roschmann and Ruppel-Schlichting (eds.), op. cit., p. 615 ; Derek Wong, “Sovereignty Sunk – The Position of Sinking States at International Law”, Melbourne Journal of International Law, Vol. 14 (2013), p. 346 ; Jenny G. Stoutenburg, Disappearing Island States in International Law, Brill Nijhoff, 2015  ; Xing-Yin Ni, “A Nation Going Under : Legal Protection for ‘Climate Change Refugees’ ”, Boston College International and Comparative Law Review, Vol. 38 (2015), p. 329 ; Nina Bergmann, Versinkende Inselstaaten  : Auswirkungen des Klimawandels auf die Staatlichkeit kleiner Inselstaaten, Duncker & Humblot, 2016  ; Alejandra Torres Camprubí, Statehood under Water : Challenges of Sea-level Rise to the Continuity of Pacific Island States, Brill Nijhoff, 2016 ; Cait Storr, “Islands and the South  : Framing the Relationship between International Law and Environmental Crisis”, European Journal of International Law, Vol. 27 (2016), p. 519.

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regarded under international law as part of the territory of that State. For example, when a volcanic eruption in 1963 created Surtsey Island about 10 nautical miles from Iceland’s Vestmannaeyjar archipelago (off the southern coast of Iceland, also known as the Westman Islands), Iceland claimed sovereignty over the island, which no other State has protested 871. A more difficult issue is the creation of an island that straddles an existing boundary, as might occur in a boundary river, or that has the effect of moving the boundary by altering the thalweg of the river. International law provides no specific rule to address such situations. The context of the situation will be important and much may turn on the ability of the two States concerned to negotiate an agreement resolving the matter or to pursue other dispute settlement. Also difficult is the emergence of an island located within the exclusive economic zone or on the continental shelf of a coastal State. The coastal State has sovereign rights in the area of the new island for the purpose of exploiting resources but, unlike the territorial sea, does not exercise sovereignty over that area 872. While it appears not to have any automatic entitlement to sovereignty over the island 873, the coastal State likely would assert   Dipla, “New Islands”, op. cit., p. 414, para. 5.   See M. Habibur Rahman, “The Impact of the Law of the Sea Convention on the Regime for Islands : Problems for the Coastal State in Asserting Claims to ‘New-Born’ Islands in the Maritime Zone”, International and Comparative Law Quarterly, Vol. 34 (1985), p. 368. 873   The coastal State might point to LOS Convention Article 76, which suggests an affinity between it and elevations when determining the extent of its continental shelf. See LOS Convention, Art. 76 (6) (“Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental 871 872

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a claim of sovereignty over the island and take steps to consolidate such a claim. Yet some other State might acquire sovereignty over the island by the methods discussed in Chapter IV (such as by peaceful possession). In either event, the acquisition of sovereignty over the island could have important consequences. The coastal State may seek to claim more extensive maritime zones based on sovereignty over the island (which may conflict with existing maritime zones of other States), while some other State with sovereignty over the island may seek to claim maritime zones that conflict with the existing zones of the coastal State or of other States. Though such conflicts would have to be resolved in context, it seems likely that States and international tribunals would resist the ability of a new, small island to upset any existing agreed maritime boundaries 874 or international judgments 875, and would favour instead techniques such an enclavement to minimize the disruption to the status quo. A boundary delimitation agreement might seek to address this issue in advance of a dispute arising. For example, in 1986 India and Burma (now Myanmar) not margin, such as its plateaux, rises, caps, banks and spurs”) (emphasis added). 874   See Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969, United Nations, Treaty Series, Vol. 1155, p. 332, Art. 62 (2) (a) (“A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty . . . [i]f the treaty establishes a boundary”). 875   Revision of an international judgment typically requires the discovery of a new fact that existed at the time of the judgment, not a new factual development that arises after the judgment has been rendered. See, e.g., Application for Revision of the Judgment of 11 September 1992 in the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras : Nicaragua intervening) (El Salvador v. Honduras), Judgment of 18 December 2003, ICJ Reports 2003, p. 392 at pp. 398-488, paras. 19-20 ; see also Dipla, “New Islands”, op. cit., para. 9.

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only delimited their maritime boundary, but agreed that : “Each Party has sovereignty over the existing islands and any islands that may emerge, falling on its side of the Maritime Boundary.” 876 If a new island is created on the high seas, then the rules on acquisition of territory discussed in Chapter IV apply. Of course, the ability to settle on such an island may prove challenging in the face of unpredictable volcanic activity 877. Yet, as noted in Chapter III, the size of the island and whether it can be inhabited is not relevant to the issue of whether it can be appropriated by a State, though it will be relevant when establishing the maritime zones that the island can generate. 2.  Unstable maritime zones Second, there may be consequences in the form of unstable baselines from which maritime zones are measured 878. Like any land mass, the baselines of an 876   Agreement between the Socialist Republic of the Union of Burma and the Republic of India on the Delimitation of the Maritime Boundary in the Andaman Sea, in the Coco Channel and in the Bay of Bengal (with maps), done at Rangoon on 23 December 1986, United Nations, Treaty Series, Vol. 1484, p. 163, Art. 5 (emphasis added). 877   See Mark Dingley, “Eruptions in International Law : Emerging Volcanic Islands and the Law of Territorial Acquisition”, Cornell International Law Journal, Vol. 11 (1978), p. 121. 878   See International Law Association, Committee on Baselines under the International Law of the Sea, Report, Sofia Conference, op. cit. ; David Caron, “When Law Makes Climate Change Worse : Rethinking the Law of Baselines in Light of a Rising Sea Level”, Ecology LQ, Vol. 17 (1990), p. 621 ; Charles Di Leva and Sachiko Morita, “Maritime Rights of Coastal States and Climate Change : Should States Adapt to Submerged Boundaries ?”, World Bank Law and Development Working Paper Series, No. 5 (2008), available at : http ://siteresources. worldbank.org/INTLAWJUSTICE/Resources/L&D_number5. pdf.

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island are not fixed ; they depend upon the physical configuration of the coast 879. As noted in Chapter VI, the normal baseline is the low-water line along the coast 880. If over time that water line moves in one direction or the other, then the baseline moves with it. A low-tide elevation previously within a territorial sea might no longer be so, and thus no longer available for the drawing of a normal baseline 881. A fringing reef might no longer be a low-tide elevation and thus become unavailable as the baseline of an island 882. Straight baselines are also affected, in that islands or low-tide elevations that fringe a coast 883 may no longer be viewed in that way if the coastline recedes, and might even become fully submerged. Archipelagic baselines are similarly affected, with the added element that drying reefs that over time become fully submerged cannot be used as base points 884. Obviously much depends on the elevation of the feature ; for low-lying features, these effects will be more dramatic. Since the maritime zones (territorial sea, contiguous zone, exclusive economic zone, and continental shelf) are measured from the baselines, these zones will also shift along with the baselines 885. As a general matter, the LOS Convention does not expressly address this possibility of shifting baselines over time. As such, it might be argued that once baselines are established and “marked on large-scale charts 879   Caron, “When Law Makes Climate Change Worse : Rethinking the Law of Baselines in Light of a Rising Sea Level”, op. cit, pp. 644-645. 880   LOS Convention, Art. 5. 881   Ibid., Art. 13 (1). 882   Ibid., Art. 6. 883   Ibid., Art. 7 (1). 884   See ibid., Art. 47 (1). 885   International Law Association, Committee on Internaional Law and Sea Level Rise, Report, Johannesburg Conference, op. cit., pp. 13-16.

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officially recognized by the coastal State” 886, then they can stay there no matter what is happening to the physical shoreline. Yet there are aspects of the LOS Convention that undercut such an idea, such as Article 7, paragraph 2, which specifically addresses the ability to keep straight baselines at a fixed location for at least a period of time in the situation of regression of the low-water line in the area of a river delta 887. The express recognition of the ability temporarily to maintain fixed baselines in that particular situation may suggest that doing so in other situations is not permitted (expressio unius est exclusio alterius), especially on a permanent basis. Yet if climate change results in the transformation worldwide of fringing islands and reefs into low-tide elevations, and of low-tide elevations into fully submerged features, the effects on baselines across the globe could be significant. To avoid uncertainty and conflicts, States may prefer to move away from the concept of ambulatory baselines, by either written agreement or practice, so as to freeze the outer limits of existing maritime zones 888. Among other things, doing so would allow States to direct scarce resources to address important adaptation issues, such as maintaining coastal ecosystems, rather than artificial preservation of existing baselines 889. 3.  Stable maritime zones despite shifting baselines With respect to the continental shelf, however, it is possible that the outer limit might be viewed as   LOS Convention, Art. 5.   Ibid., Art. 7 (2). 888   See Caron, “When Law Makes Climate Change Worse : Rethinking the Law of Baselines in Light of a Rising Sea Level”, op. cit., p. 650 ; Soons, “The Effects of a Rising Sea Level”, op. cit., p. 225. 889   See Caron, “When Law Makes Climate Change Worse : Rethinking the Law of Baselines in Light of a Rising Sea Level”, op. cit., pp. 642-650. 886 887

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permanently fixed regardless of a shift in the baselines. LOS Convention Article 76, paragraph 9, provides that the “coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf” 890. By its terms, that provision is not limited to the situation where the State is claiming a continental shelf beyond 200 nautical miles 891, and therefore a continental shelf claimed based on a distance from the baselines in a given year might remain permanent thereafter, regardless of whether the baseline shifts. Moreover, where there are overlapping maritime zones between two different States which have been resolved through a bilateral agreement or the decision of an international court or tribunal, the boundary delimitation likely stays the same regardless of changes in the baselines 892. The standard way for delimiting a boundary in an agreement, award, or judgment is to indicate coordinates along which the boundary shall be drawn – co-ordinates that are derived from base points 893 – but which are not thereafter dependent on those base   LOS Convention, Art. 76 (9) (emphasis added).   Cf. ibid., Art. 76 (7), (8). 892   See, e.g., International Law Association, Committee on International Law and Sea Level Rise, Report, Johannesburg Conference, op. cit., p. 17 (“As a matter of existing law, the Committee took the view that changes in coastlines arising through sea-level rise or any other reason did not affect, and had not to date affected, the validity of existing maritime boundary agreements”). 893   A tribunal might, however, decide not to use a particular base point if it is thought that the base point is too unstable, and therefore a line drawn from it might be “arbitrary and unreasonable in the near future”. Territorial and Maritime Dispute in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 742, para. 277 ; ibid., p. 746. 890 891

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points 894. Indeed, in establishing the boundary in the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, the arbitral tribunal stated that the “issue is not whether the coastlines of the Parties will be affected by climate change in the years or centuries to come. It is rather whether the choice of base points located on the coastline and reflecting the general direction of the coast is feasible in the present case and at the present time.” 895 The delimited maritime boundary, like a land boundary, will have a permanence to it that is resistant even to doctrines that may allow for changed circumstances in treaty law 896. As the International Court indicated in the Aegean Sea case, “[w]hether it is a land frontier or a boundary line in the continental shelf that is in question, the process is essentially the same, and inevitably involves the same element of stability and permanence, and is subject to the rule excluding boundary agreements from fundamental change of circumstances” 897. 894   See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 54, para. 61 (“what must be taken into account in the delimitation of shelf areas are the physical circumstances as they are today”). 895   Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, PCA Case No. 2010-16, p. 62, para. 214. 896   See Vienna Convention on the Law of Treaties, Art. 62 (2) (a). 897   Aegean Sea Continental Shelf (Greece v. Turkey), Judgment of 19 December 1978, ICJ Reports 1978, p. 3 at pp. 35-36. For discussion of Greek islands in the Aegean, see Kariotis (ed.), Greece and the Law of the Sea, op. cit. ; Nicholas M. Poulantzas, “The Status of Islands in the International Law of the Sea : The Megisti Island”, Revue hellénique de droit international, Vol. 65 (2012), p. 359.

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4.  Islands to rocks to low-tide elevations A further issue is that with rising sea levels or other events such as increased storms, it is possible that over time an island that is habitable might become uninhabitable. For example, a tsunami in 2004 rendered the Maldivian island of Gemendhoo (or Dhaalu Atoll) uninhabitable, forcing the population to move to another island 898. When this happens, an island that is not a “rock” within the meaning of LOS Convention Article 121, paragraph 3, might become such a rock. If so, then the rock would no longer support either an exclusive economic zone or a continental shelf ; it would only be able to generate a territorial sea and contiguous zone. Likewise, it is possible that a feature constituting a rock under Article 121, paragraph 3, might become a lowtide elevation, in which case it would no longer support even a territorial sea or a contiguous zone. At best, it might serve as a base point if located in the territorial sea of an island or mainland State. 5.  Disappearance of an island State Given that islands may disappear due to rising sea levels or other events, an issue arises as to what happens if an entire island State disappears. Conventional international law theory holds that a State only exists if it possesses defined territory, but if an island State sinks below the sea, then the State will no longer have any territory, thus raising the question of whether Statehood can be lost through a rise in sea levels 899. Indeed, even 898   See International Federation of Red Cross and Red Crescent Societies, “Federation houses handed over to families in the Maldives” (3 April 2006), available at : http ://www. ifrc.org/en/noticias/noticias/asia-pacific/maldives/federationhouses-handed-over-to-families-in-the-maldives/. 899   See Stoutenburg, op. cit., pp. 239-296 ; Abhimanyu George Jain, “The 21st Century Atlantis : The International Law

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before the island becomes fully submerged, it may become uninhabitable, and the lack of a permanent population would also eliminate an element traditionally viewed as necessary for the existence of a State. Important arguments have been made that such an outcome would constitute a serious denial of fundamental human rights and therefore must not be allowed to happen 900 but, if it does happen, there would seem to be three general legal paths that might be possible. First, following traditional international law, the State might be regarded as no longer existing since it possesses no territory 901, in which case it could no longer be a member of international organizations, the treaties it concluded would be void, the people of the State who possess exclusively its nationality would become stateless, and so on 902. Indeed, it is hard to see how an entity that no longer possessed territory can provide a meaningful nationality to a person, if that nationality would not allow the person admittance to and residence at a particular location 903. Within the realm of traditional of Statehood and Climate Change-Induced Loss of Territory”, Stanford Journal of International Law, Vol. 50 (2014), p. 1 at pp. 14-20 ; Julien Jeanneney, “L’Atlantide : remarques sur la submersion de l’intégralité du territoire d’un Etat”, Revue générale de droit international public, Vol. 118 (2014), p. 95. 900   See Jane McAdam and Marc Limon, Human Rights, Climate Change and Cross-Border Displacement : The Role of the International Community in Contributing to Effective and Just Solutions, Universal Rights Group, 2015 ; Stephen Humphreys (ed.), Human Rights and Climate Change, Cambridge University Press, 2010. 901   Convention on the Rights and Duties of States, done at Montevideo on 26 December 1933, League of Nations, Treaty Series, Vol. 165, p. 19, Art. 1 (“The State as a person of international law should possess . . . a defined territory . . .”). 902   See Heather Alexander and Jonathan Simon, “Sinking into Statelessness”, Tilburg Law Review, Vol. 19 (2014), p. 20. 903   See Heather Alexander and Jonathan Simon, “No Port, No Passport : Why Submerged States Can Have No Nationals”, Washington International Law Journal, Vol. 26

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international law, there may still be room for viewing the assets of the State held abroad to be assets of the former nationals of that State (or perhaps even of a legal person that succeeds to the Government of that former State), although those assets may also be subject to any outstanding debts of the State. Other States would have certain human rights obligations vis-à-vis the former nationals of the disappeared State, as they would with respect to the treatment of any stateless persons 904. Perhaps rules on State responsibility would be invoked to support redress for the lost State vis-à-vis other States 905, though the legal basis for such claims and whether they could succeed is far from clear. Second, the State might be able to continue to exist on territory ceded to it by another State, such as an island or a portion of a mainland, whether as a gift or by purchase 906. The first State’s population would be transferred to that territory, where the State would continue to function (2017) (forthcoming), available at : https ://ssrn.com/abstract =2854444. 904   See Mathias Risse, “The Right to Relocation : Disappearing Island Nations and Common Ownership of the Earth”, Ethics and International Affairs, Vol. 23 (2009), p. 281 ; Susin Park, “Climate Change and the Risk of Statelessness : The Situation of Low-lying Island States”, UNHCR Legal and Protection Policy Series, PPLA/2011/04 (May 2011), available at : http ://www.unhcr.org/4df9cb0c9.pdf. 905   Kristy Ruddock and Donna Green, “What Legal Recourse Do Non-State Islands Have to Obtain Resources to Adapt to Climate Change”, Macquarie Journal of International and Comparative Environmental Law, Vol. 7 (2011), p. 69. 906   In 2014, Kiribati purchased land in Fiji from the Church of England as a possible place to resettle Kiribati nationals, but this was not a transfer of sovereignty over territory. See UN Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries and Small Island Developing States, “Besieged by the rising tides of climate change, Kiribati buys land in Fiji” (30 June 2014), available at : http ://unohrlls.org/news/30-june-2014-besieged-by-the-risingtides-of-climate-change-kiribati-buys-land-in-fiji/.

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under traditional rules of international law. The State would continue to be sovereign over any island it has left behind, and entitled to rights in the island’s maritime zones, for as long as the island continues to exist 907. A variant on this approach might involve the State merging with another State, allowing the former to secure a place for its population to exist and the latter to receive some of the benefits of the maritime entitlements that are left behind 908. A third path would be to contemplate new international law to address this unique situation. Perhaps international law may be interpreted as not requiring possession of territory as an element of Statehood, at least in circumstances where territory is lost through circumstances such as climate change 909. If so, then perhaps there should be a duty upon States to continue to recognize the Statehood of the disappeared island, along with all its rights to membership in international organizations, to be a party to treaties, to hold State assets, to incur State debts, and so on. There are examples from history whereby certain entities were granted a special Statelike status in international law even though they did not actually control territory. One might point, for example, to the recognition by the United Nations in 1973 of the South West Africa People’s Organization as the official representative of the Namibian people 910. There might be an expectation of identifying a place where the population of the disappeared island State could relocate, either collectively or in separate communities, perhaps through 907   Soons, “The Effects of a Rising Sea Level”, op. cit., p. 230. 908   Caron, “When Law Makes Climate Change Worse : Rethinking the Law of Baselines in Light of a Rising Sea Level”, op. cit., p. 650 ; Soons, “The Effects of a Rising Sea Level”, op. cit., p. 230. 909   See Jain, op. cit., pp. 20-52. 910   UN General Assembly, Question of Namibia, resolution 3111 (XXVIII), 12  December 1973.

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a UN institutional structure akin to the Trusteeship Council. Certainly there are large numbers of expatriate communities living around the world, such that the notion of a large population of foreigners living in another State is conceivable. Perhaps, despite the disappearance of the island, there could be recognition of continued rights to the maritime zones that would have been generated if the island had continued to exist ; indeed, the doctrine of historic rights might be employed to allow exclusive or preferred access to the waters and continental shelf of the now-submerged island. Doing so could provide economic resources for the State and its people. How such measures might be achieved would entail creative lawyering, but one could certainly imagine a further protocol, amendment, or “implementing agreement” to the LOS Convention. While these are possibilities, and are an important challenge for the next generation of international lawyers, it should be acknowledged that it likely would be quite difficult to maintain a sense of national identity, including language, history and culture, in the absence of the unique territory where that identity emerged. C. Conclusion This chapter considered the legal consequences of changes in islands over time. Such changes may arise from the normal influence of the Earth’s geophysical forces whereby, through currents and waves, islands may both increase in size and erode. When this happens, there may be important collateral effects on baselines and maritime zones associated with the islands. Moreover, global climate change leading to an increase in sea levels and harsher weather conditions threatens not just the size and habitability of some islands, but their very existence as well. It is conceivable that, within the next generation, one or more island States may entirely disappear, in theory rendering its nationals stateless and stripping

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them of rights to the natural resources of the adjacent seas that they previously enjoyed. Conflicts can arise between States from changes in islands over time, as well as from other circumstances discussed throughout the preceding chapters, including disputes over sovereignty or maritime boundary delimitation. In addition to the substantive rules provided by international law to address these matters, there are various procedural mechanisms available for the pacific settlement of disputes relating to islands, to which the next chapter turns.

CHAPTER IX

PACIFIC SETTLEMENT OF ISLAND DISPUTES When disputes arise between two States relating to islands, international law provides various procedures for dispute settlement. Moreover, given that many disputes relate to the rights and obligations set forth in the LOS Convention, the innovative and compulsory procedures set forth in that Convention may be available for States Parties. There exist, however, important aspects of island disputes, such as those concerning sovereignty, which are not susceptible to resolution under LOS Convention procedures. Further, the LOS Convention allows a State Party optionally to carve out certain issues from compulsory procedures that entail binding decisions, including maritime boundary delimitation. Consequently, resort may be necessary to other, more traditional procedures that may be available outside the LOS Convention, on either an optional or compulsory basis, notably negotiation, mediation, conciliation, arbitration, or judicial settlement. A.  Overview of LOS Convention Dispute Settlement Part XV of the LOS Convention establishes an 911 innovative system for the settlement of disputes  . 911   See generally Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea, Cambridge University Press, 2005 ; Hong and Van Dyke (eds.), op. cit. ; Nong Hong, UNCLOS and Ocean Dispute Settlement : Law and Politics in the South China Sea, Routledge, 2012 ; Igor V. Karaman, Dispute Resolution in the Law of the Sea, Martinus Nijhoff, 2012 ; Jin-Hyun Paik, Seok-Woo Lee and Kevin Y. L. Tan (eds.), Asian Approaches to International Law and the Legacy

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Section 1 of Part XV obligates States Parties to settle peacefully their disputes concerning the interpretation or application of the Convention 912 and, to that the end, to pursue any agreed-upon method of dispute settlement 913. When a dispute arises, States Parties are obligated to “proceed expeditiously to an exchange of views regarding its settlement by negotiation or other peaceful means” 914, which might include pursuing conciliation in accordance with the procedures set forth in Annex V 915. If two States Parties have agreed to seek settlement of the dispute by a peaceful means of their own choice then, under LOS Convention Article 281, the procedures provided for in Part XV “apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure” 916. Likewise, under LOS Convention Article 282, if the two States Parties have agreed through a global, regional or bilateral agreement that such a dispute “shall be submitted to a procedure that entails a binding decision”, that procedure shall apply rather than Part XV 917. of Colonialism : The Law of the Sea, Territorial Disputes and International Dispute Settlement, Routledge, 2013. 912   LOS Convention, Art. 279. 913   Ibid., Art. 280. 914   Ibid., Art. 283 (1). For interpretation of this provision, see Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3, pp. 139-152, paras. 351-386 ; The South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19, pp. 112-123, paras. 322-353. For criticism, see Stefan Talmon, “The Chagos Marine Protected Area Arbitration : Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals”, International and Comparative Law Quarterly, Vol. 65 (2016), p. 927 at pp. 930-932. 915   LOS Convention, Art. 284. 916   Ibid., Art. 281 (1). 917   Ibid., Art. 282.

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In an early Annex VII arbitration, a tribunal found that two States Parties to the LOS Convention had concluded a treaty – the 1993 Convention for the Conservation of Southern Bluefin Tuna – in which they opted for a specific dispute resolution process relating to disputes over such fish, albeit one that was not compulsory in nature 918. Consequently, the arbitral tribunal declined to exercise compulsory jurisdiction 919. By contrast, in the Philippines v. China arbitration, one of the jurisdictional arguments that China advanced (outside the scope of the proceedings, as it did not appear before the tribunal) was that the Philippines had previously agreed to negotiate any disputes relating to conduct in the South China Sea 920. Specifically, China maintained that by agreeing to the 2002 ASEAN Declaration on the Conduct of Parties in the South China Sea, the Philippines had given up the possibility of compulsory dispute settlement under the LOS Convention. That declaration provided, in part : “The Parties concerned undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international 918   Convention for the Conservation of Southern Bluefin Tuna, done at Canberra on 10 May 1993, United Nations, Treaty Series, Vol. 1819, p. 360, Art. 16. 919   Southern Bluefïn Tuna Case (Australia v. Japan ; New Zealand v. Japan), Award on Jurisdiction and Admissibility of 4 August 2000, Reports of International Arbitral Awards, Vol. XXIII (2006), p. 1. For criticism, see Bernard H. Oxman, “Complementary Agreements and Compulsory Jurisdiction”, American Journal of International Law, Vol. 95 (2001), p. 277. 920   The South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19, pp. 78-79, paras. 202-206.

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law, including the 1982 UN Convention on the Law of the Sea.” 921 The arbitral tribunal, however, stated that agreeing to such a declaration was not a basis for precluding the Philippines from resorting to LOS compulsory dispute settlement. The tribunal concluded that the declaration was a political agreement without any binding legal force upon the States that agreed to it and that it, in any event, did not preclude recourse to other dispute settlement procedures. As such, it could not bar the tribunal’s jurisdiction over the Philippines’ claims 922. The tribunal also found that various bilateral statements issued by the two States, as well as the Treaty of Amity and Co-operation in Southeast Asia and the Convention on Biological Diversity, did not constitute an agreement to settle the dispute by other means 923. Interestingly, a State’s declaration accepting the International Court of Justice’s optional compulsory jurisdiction might serve as a basis for displacing Part XV procedures but, conversely, a reservation to that declaration excluding maritime disputes would not do so. In its judgment on preliminary objections to jurisdiction in Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), the Court in dicta stated : 921   Association of Southeast Asian Nations (ASEAN) Declaration on the Conduct of Parties in the South China Sea, 4 November 2002, para. 4, available at : http ://asean. org/ ?static_post=declaration-on-the-conduct-of-parties-in-thesouth-china-sea-2 ; see Wu Shicun and Ren Huaifeng, “More than a Declaration : A Commentary on the Background and the Significance of the Declaration on the Conduct of the Parties in the South China Sea”, Chinese Journal of International Law, Vol. 2 (2003), p. 311. 922   The South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19, pp. 82-88, paras. 212-229. 923   Ibid., pp. 89-111, paras. 230-321.

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“It is equally clear that if a reservation to an optional clause declaration excluded disputes concerning a particular subject (for example, a reservation excluding disputes relating to maritime delimitation), there would be no agreement to the Court’s jurisdiction falling within Article 282, so the procedures provided for in Section 2 of Part XV would apply to those disputes, subject to the limitations and exceptions that result from the application of Section 3.” 924 If no settlement is reached under the Section 1 methods, then Section 2 provides for binding compulsory dispute settlement in one of four possible venues  : (1) the International Tribunal for the Law of the Sea (“ITLOS”), which is based in Hamburg, Germany ; (2) the International Court of Justice (“ICJ”), which is based in The Hague, Netherlands ; (3) ad hoc arbitration in accordance with Annex VII of the LOS Convention ; or (4) a “special arbitral tribunal” constituted for certain categories of disputes, in accordance with Annex VIII of the LOS Convention 925. When ratifying or acceding to the Convention or at any time thereafter, States Parties may make a declaration choosing one or more of these means ; in the absence of a declaration they are deemed to have accepted arbitration under Annex VII 926. If, when a dispute arises, the two States Parties have chosen the same venue, then that venue is to be used unless the two Parties decide otherwise 927. If they have chosen different venues and cannot agree upon which one to use, then the default is to go to Annex VII arbitration 928. 924   Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment of 2 February 2017, ICJ Reports 2017, pp. 42-43, para. 128, available at : http ://www.icj-cij.org. 925   LOS Convention, Art. 287 (1). 926   Ibid., Art. 287 (3). 927   Ibid., Art. 287 (4). 928   Ibid., Art. 287 (5).

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While it was believed important to include compulsory and binding jurisdiction in the LOS Convention, it was nevertheless viewed as necessary to establish in Section 3 of Part XV certain automatic limitations (Article 297) or optional exceptions (Article 298) to that jurisdiction. These limitations and exceptions can be quite important. For instance, there is an automatic limitation in Article 297 that precludes compulsory dispute settlement concerning the coastal State Party’s determination of the allowable catch in the exclusive 929 economic zone  . There are optional exceptions in Article 298 allowing a State to declare that it does not accept jurisdiction over disputes concerning delimitation of maritime areas, concerning historic bays and titles 930, or concerning military activities 931. States Parties to the LOS Convention are committed to compulsory dispute resolution not just with respect to disputes arising under the LOS Convention, but also with respect to “any dispute concerning the interpretation or application of an international agreement related to the purposes of this Convention, which is submitted . . . in accordance with the agreement” 932. As of 2016, there are 12 multilateral agreements and a few bilateral agreements in force that provide for such jurisdiction 933. States that are not parties to the LOS Convention, or States Parties which have carved out certain types of disputes from settlement procedures under that Convention, may nevertheless be exposed to dispute settlement procedures arising under other treaties or instruments. Moreover,   LOS Convention, Art. 297 (3) (a).   Ibid., Art. 298 (1) (a) (i). 931   Ibid., Art. 298 (1) (b) ; see Klein, Dispute Settlement in the UN Convention on the Law of the Sea, op. cit., pp. 227-315. 932   LOS Convention, Art. 288 (2). 933   See International Tribunal for the Law of the Sea, “International Agreements Conferring Jurisdiction on the Tribunal”, available at : https ://www.itlos.org/jurisdiction/inter national-agreements-conferring-jurisdiction-on-the-tribunal/. 929 930

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States are obligated to act in good faith in abiding by their obligations arising under conventional or customary international law, which may help encourage States to resolve their island disputes through the various forms of available procedures. B.  Islands and Negotiation Considering the rules and best practices now available under the contemporary law of the sea, the increasing desire to exploit natural resources from the various maritime zones, and the possibility in some cases of binding compulsory dispute settlement, it is perhaps of no surprise that States have been motivated, in the first instance, to negotiate with each other to resolve their disputes, including disputes involving islands. Identifying the existence of such negotiations is not always easy ; States will often engage in negotiations quietly. Even so, various studies suggest that negotiations on issues concerning the law of the sea have flourished since the entry into force of the LOS Convention in 1994. For example, Igor Karaman catalogues more than 60 negotiations between States from 1994 to 2012 ; some of those negotiations succeeded and resulted in international agreements 934, some did not succeed, and others remain ongoing 935. Not all of these negotiations concerned disputes over islands, but often islands have featured in such disputes, typically in the context of their effects on maritime boundary delimitation. Examples of the many successful negotiations leading to international agreements include the 2008 Agreement between Mauritius and the Seychelles on the Delimitation of their Exclusive Economic 934   As noted in Chapter VII, a good source for analysing such agreements is  : International Maritime Boundaries, Vols. I-VII, op. cit. 935   Karaman, op. cit., pp. 331-336.

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Zones 936 and the 2009 Maritime Boundary Delimitation Treaty between Barbados and France concerning delimitation between Barbados and France’s overseas ter937 ritories of Guadeloupe and Martinique  . In some instances, such agreements provide for the possibility of dispute settlement if a disagreement arises with respect to interpretation or application of the agreement938. Negotiation is, by far, the most preferred method of dispute settlement under the law of the sea, with States turning to other forms of dispute settlement only when negotiations stall. David Anderson – a former legal adviser to the UK Foreign and Commonwealth Office and an ITLOS judge – notes that, when it comes to boundary delimitation, there are certain inherent advantages for States in pursuing negotiation. He writes that : “The parties retain control over a series of important issues, such as the precise results of the negotiations and in particular the course of the boundary lines ; the way in which the line is defined ; the terms and timing of the agreement ; and its presentation to public opinion.” 939 936   Agreement between the Government of the Republic of Mauritius and the Government of the Republic of Seychelles on the delimitation of the exclusive economic zone between the two States (with annex), done at Port Louis on 29 July 2008, United Nations, Treaty Series, Vol. 2595, p. 225. 937   Agreement between the Government of the French Republic and the Government of Barbados on the delimitation of the maritime space between France and Barbados (with attachment), done at Bridgetown on 15 October 2009, United Nations, Treaty Series, Vol. 2663, p. 163. 938   See Cissé Yacouba and Donald McRae, “The Legal Regime of Maritime Boundary Agreements”, in Colson and Smith (eds.), Vol. V, op. cit., p. 3281 at pp. 3300-3303. 939   David Anderson, “Negotiating Maritime Boundary Agreements : A Personal View”, in Lagoni and Vignes, op. cit., p. 121 at pp. 122-123 (reprinted in David Anderson, Modern Law of the Sea : Selected Essays, Martinus Nijhoff, 2008, p. 417).

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Indeed, he opines that “litigation always carries risks for the parties” 940. When engaging in their negotiations, States often refer to and rely upon principles and rules articulated by international courts and tribunals ; such precedent provides a basis for framing the issues between the States and their possible resolution 941. At the same time, States have negotiated outcomes that would not be possible if they left matters to a dispute settler that was limited in its application of the law, awarding sovereignty or jurisdiction over maritime areas solely to one State or the other 942. In the context of overlapping claims to maritime resources, an important outcome of some negotiations has been joint development arrangements, whereby States largely set aside their legal claims (at least for the time being) and focus instead on practical measures to secure their underlying objectives 943. In short, even if States cannot agree upon a boundary line between their maritime spaces, they may nevertheless be able to agree on a fair division of the resources at stake. Such an approach allows the States to maintain their respective claims regarding the boundary, but to proceed on a more functional basis for both managing and exploiting the 940   Anderson, “Negotiating Maritime Boundary Agreements : A Personal View”, op. cit., p. 123. 941   See, e.g., A Dialogue at the Court : Proceedings of the ICJ/UNITAR Colloquium Held on the Occasion of the Sixtieth Anniversary of the International Court of Justice, at the Peace Palace on 10 and 11 April 2006 (ICJ/UNITAR, 2006), p. 10 (discussing India’s use of ICJ jurisprudence when negotiating its maritime boundaries). 942   Karaman, op. cit., pp. 186-187 (quoting Shigeru Oda, “Dispute Settlement Prospects in the Law of the Sea”, in Shigeru Oda, Fifty Years of the Law of the Sea : Selected Writings of Shigeru Oda, Kluwer, 2003, p. 673). 943   See, e.g., Vasco Becker-Weinberg, Joint Development of Hydrocarbon Deposits in the Law of the Sea, Springer, 2014. Such arrangements are encouraged by the LOS Convention. See LOS Convention, Arts. 74 (3), 83 (3).

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resources, even in situations where the full extent of those resources is not known 944. Dozens of joint development zones now exist, scattered across every region of the world 945 ; establishment of such a zone may be a viable option when a dispute arises 946. C.  Islands and Mediation By contrast, resort by States to mediation (sometimes referred to as “good offices”) to resolve disputes arising under the law of the sea has been more modest 947, numbering less than a dozen since 1994 948. States may believe that if negotiations have been unsuccessful, then the best option is to move forward with compulsory dispute settlement, rather than to seek help from a third party to assist in the process through mediation. Nevertheless, examples of mediation certainly exist, including with respect to disputes relating to islands. Perhaps the most famous of these is the papal mediation (John Paul II) of the dispute between Chile and Argentina regarding islands near the Beagle Channel 949. Less well944   Even though not dictated by rules of international law, arguably such actions may have an influence on the development of international law in this area. See David M. Ong, “Joint Development of Common Offshore Oil and Gas Deposits : ‘Mere’ State Practice or Customary International Law ?”, American Journal of International Law, Vol. 93 (1999), p. 771. 945   See Prescott and Schofield, op. cit., p. 264. 946   Robert Beckman et al. (eds.), Beyond Territorial Disputes in the South China Sea : Legal Frameworks for the Joint Development of Hydrocarbon Resources, Edward Elgar, 2013. 947   See generally Avnita Lakhani, “The Strategic Use of Mediation for Resolving Maritime Territorial Disputes”, Journal of International Maritime Law, Vol. 19 (2013), p. 60. 948   Karaman, op. cit., pp. 337-338. 949   See Guillermo R. Moncayo, “La médiation pontificale dans l’affaire du Canal Beagle”, Receuil des cours, Vol. 242 (1993), p. 197 ; Mark Laudy, “The Vatican Mediation of the

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known mediations also occur, such as the Organization of American States’ mediation of the territorial and maritime dispute between Belize and Guatemala, which in part involves island disputes 950, or the UN SecretaryGeneral’s mediation of Equatorial Guinea and Gabon’s maritime boundary dispute relating to three islands in Corsico Bay (the Mbanié, Cocotiers, and Congas islands) 951. Mediation does not lead to a binding outcome and thus may not resolve the dispute, but it might result in the parties agreeing to some other means for resolving the dispute. For example, in late 2016 the mediation between Equatorial Guinea and Gabon reportedly led to an agreement to submit the matter to the International Court of Justice 952. Similarly, France’s mediation of the Eritrea-Yemen maritime boundary dispute did not itself resolve the dispute, but did lead the two States to agree on resort to arbitration 953. D.  Islands and Conciliation Conciliation as a method of dispute settlement is featured in Part XV of the LOS Convention. Article 284 Beagle Channel Dispute  : Crisis Intervention and Forum Building”, in Greenberg, Barton and McGuinness (eds.), op. cit., p. 293. 950   See Montserrat Gorina-Ysern, “OAS Mediates in Belize-Guatemala Border Dispute”, ASIL Insights, Vol. 5, Issue 20 (2000), available at  : https  ://asil.org/insights/volume/5/ issue/20/oas-mediates-belize-guatemala-border-dispute. 951   See Oduntan, op. cit., p. 168 ; “Gabon and Equatorial Guinea set terms of UN mediation over disputed islands”, UN News Centre, 20 January 2004, available at :   http ://www.un.org/ apps/news/story.asp ?NewsID=9499&Cr=gabon&Cr1=guinea. 952   See UN Press Release, Secretary-General, at Signing Ceremony, Hails Agreement Ending Border Dispute between Equatorial Guinea, Gabon as “Testimony” to Political Leadership (15 November 2016), available at : http ://www. un.org/press/en/2016/sgsm18265.doc.htm. 953   Territorial Sovereignty and the Scope of the Dispute (Eritrea v. Yemen), 1998, p. 225, para. 77.

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of the LOS Convention encourages parties, if they cannot otherwise resolve their dispute, to agree to take the matter to conciliation under Annex V, Section 1 954. The conciliation procedure envisaged in that section entails each party choosing two conciliators (of which one may be its national) preferably from a list established by LOS Convention States Parties. The four conciliators would then select a fifth to serve as chairperson. After considering the views of both parties, and if no agreement is reached, the commission issues a report in which it makes non-binding recommendations 955. If one of the automatic limitations or optional exceptions contained in Section 3 of Part XV precludes binding compulsory dispute settlement, the States Parties nevertheless may be obligated to pursue conciliation under Annex V, Section 2 (a process sometimes referred to as “compulsory conciliation”) 956. For example, if a State Party has exercised its right to opt out of binding compulsory settlement of disputes concerning maritime boundary disputes or historic bays or titles, the State nevertheless is bound to accept submission to conciliation of any such dispute that arises after entry into force of the LOS Convention 957. In this instance, however, the LOS Convention provides “that any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory shall be excluded from such submission”958.   LOS Convention, Art. 284.   Ibid., Annex V, Arts. 1-10.   Ibid., Annex V, Arts. 11-14. 957   Ibid., Art. 298 (1) (a) (i). 958   Ibid. (emphasis added). This proviso has created some confusion. One interpretation – sometimes referred to as the “a contrario reading” – maintains that the proviso demonstrates that a failure to invoke this optional exception means that a State 954 955 956

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Although compulsory conciliation does not result in a legally binding decision, the States Parties are required to negotiate an agreement on the basis of the commission’s report and, if agreement is not reached, “the parties shall, by mutual consent, submit the question” to one of the Part XV, Section 2, compulsory dispute procedures 959. The words “by mutual consent” suggest that a State may not be compelled to accept any binding dispute procedure, though it has been suggested that the word “shall” introduces ambiguity in that regard, which might be tested through a unilateral application 960. Yet if mediation is a poor second-cousin at the dispute settlement wedding, conciliation does not even seem to show up at the event. The reigning champion for conciliation of a law of the sea dispute as of 2016 remains that concerning the continental shelf delimitation between Iceland and Norway over the island of Jan Mayen, which dates back to 1981 961. That dispute concerned Jan Mayen Island, a volcanic island in the Arctic Ocean under the sovereignty of Norway, about 290 nautical miles northeast of Iceland. Iceland and Norway Party is exposed to compulsory dispute resolution concerning maritime boundary disputes or historic bays or titles, even if such a dispute requires concurrent consideration of issues of sovereignty. For if such disputes under no circumstances can involve issues of sovereignty, there would be no need for the proviso. The better interpretation maintains that the proviso is simply reiterating, in the context of compulsory conciliation, that disputes involving concurrent consideration of issues of sovereignty are not to be addressed. 959   LOS Convention, Art. 298 (1) (a) (ii). 960   See Robert Beckman, “UNCLOS Part XV and the South China Sea”, in Jayakumar, Koh and Beckman (eds.), op. cit., p. 229 at p. 246. 961   See Ulf Linderfalk, “The Jan Mayen Case (Iceland/ Norway) : An Example of Successful Conciliation”, in Christian Tomuschat, Riccardo Pisillo Mazzeschi and Daniel Thürer (eds.), Conciliation in International Law : The OSCE Court of Conciliation and Arbitration, Brill Nijhoff, 2016, p. 193.

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could not reach a negotiated agreement as to where to delimit the continental shelf between Jan Mayen Island and Iceland, and hence turned to a conciliation process. Each State appointed to the conciliation commission a senior government official knowledgable about law of the sea matters, and the two States then agreed upon such an official from a third State (the United States) as the presiding member. The commission then received information from the parties and experts about various aspects of the dispute. Rather than propose a simple boundary line dividing up the continental shelf between the two States, the three-member commission proposed a more complex regime, designed to bring about acceptance by both sides based on their particular interests (this effort was aided by the fact that all three members of the commission were experienced diplomats and law of the sea experts). In addition to proposing a boundary line permitting Iceland to exercise jurisdiction over the continental shelf up to approximately 200 nautical miles from its coast, and Norway to exercise jurisdiction over continental shelf areas up to approximately 90 nautical miles from Jan Mayen Island, the Commission proposed the establishment of a 45,000 square-kilometre zone straddling the boundary where continental shelf resources would be jointly developed by both States 962. These proposals were accepted by Iceland and Norway, which embodied them in a 1981 treaty 963. Yet most island disputes have not been addressed through conciliation. Even more so than was the case for mediation, once States have decided to give up control 962   Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen : Report and recommendations to the governments of Iceland and Norway, 1981, pp. 32-34. 963   Agreement between Norway and Iceland on the continental shelf between Iceland and Jan Mayen, done at Oslo on 22 October 1981, United Nations, Treaty Series, Vol. 2124, p. 247.

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over such a dispute and to allow for a relatively formal decision by a third-party body, they appear inclined to go all the way by accepting that the ultimate decision is legally binding, which means selecting arbitration or judicial settlement. In other words, there may not be much gained by pursuing a process that looks a lot like arbitration but lacks the benefit of legal certainty that flows from the issuance of an arbitral award. Indeed, States may well prefer to lose at arbitration, and use the fact of a legally-binding result to manage the demands of its domestic constituencies, than to lose in a conciliation process and have no legal basis for setting aside those demands. Even so, perhaps over time the “compulsory conciliation” envisaged in the LOS Convention will become more common, as the only practical avenue for pursuing a dispute against a State Party that has filed an Article 298 declaration and is unwilling to agree to any other form of dispute settlement. The first compulsory conciliation was initiated by Timor-Leste against Australia in 2016 concerning the maritime delimitation of the East Timor Sea and related matters. Australia challenged the conciliation commission’s competence on various grounds, all of which were rejected 964 (Australia nonetheless is continuing to participate in the conciliation process). Though at this stage it is too early to tell, perhaps the Timor-Leste/Australia conciliation is a harbinger of things to come. What factors might drive States away from negotiation, mediation or conciliation, and toward litigating their island dispute before either an arbitral or judicial body ? Coalter Lathrop, in the context of maritime boundary disputes, suggests that 964   See Conciliation between The Democratic Republic of Timor-Leste and The Commonwealth of Australia, Decision on Competence,19 September 2016, available at : https ://pcacases. com/web/sendAttach/1921.

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“the factors that may contribute to a decision to litigate include urgency of resolution, the existence of a standard, whether all diplomatic options have been exhausted, the larger foreign policy context in which the dispute is situated, assessments of the likely outcomes, avoidance of domestic political costs, power asymmetry between the parties, flexibility of process and solution, familiarity with procedure and forum, and economies of scale. . . . Other factors . . . [include] strategic and tactical concerns  ; reputational consequences  ; anticipated duration of the dispute resolution processes ; . . . financial expenses coupled with personnel and budgetary constraints ; finality of a solution ; and expected levels of compliance with the outcome.” 965 Of course, in any given context, still other factors may arise, such as whether the States’ leaders would face considerable domestic costs if they were to make negotiated concessions 966 ; whether litigation is necessary to break an unfavourable stalemate 967 ; and whether a State’s conduct in a disputed area begins “to establish an unfavourable status quo for the weaker or less active State” 968. E.  Islands and Arbitration As it turns out, arbitration of law of the sea disputes, including those relating to islands, has proved rather frequent, typically through arbitral tribunals convened under Annex VII of the LOS Convention. These tribunals 965   Coalter G. Lathrop, “Why Litigate a Maritime Boundary ? Some Contributing Factors”, in Natalie Klein (ed.), Litigating International Law Disputes : Weighing the Options, Cambridge University Press, 2014, p. 230 at p. 250. 966   Ibid., p. 255. 967   Ibid., p. 256. 968   Ibid., pp. 257-258.

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consist of five arbitrators, with each party appointing one arbitrator and then agreeing upon the remaining three 969. If the parties are unable to agree, or in the event of nonappearance by one of the parties, the President of ITLOS serves as the appointing authority ; in that capacity, he appoints both the party-appointed arbitrator and the other arbitrators if needed, provided they are of different nationalities and not “in the service of, ordinarily resident in the territory of, or nationals of, any of the parties to the dispute” 970. Anticipating the possibility that it may take time for an arbitral tribunal to be formed, the LOS Convention allows a party to the arbitration to seek from ITLOS an order on provisional measures of protection 971. Thus, one reason an arbitration might be filed is if the applicant State is seeking such protection on an urgent basis. In such circumstances, ITLOS must satisfy itself that “prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires” 972. In the event of non-appearance by a party, Article 9 of Annex VII provides that the “[a]bsence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings” 973. At the same time, in the event of non-appearance, “the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law” 974. In the Philippines v. China case, the tribunal noted that   LOS Convention, Annex VII, Art. 3 (a)-(d).   Ibid., Annex VII, Art. 3 (e).   Ibid., Art. 290 (5) ; ibid., Annex VI, Art. 25. 972   Ibid., Art. 290 (5) ; see Rosenne, Provisional Measures in International Law : The International Court of Justice and the International Tribunal for the Law of the Sea, op. cit. 973   LOS Convention, Annex VII, Art. 9. 974   Ibid. 969 970 971

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“Article 9 of Annex VII does not operate to change the burden of proof or to raise or lower the standard of proof normally expected of a party to make out its claims or defences. However, as a practical matter, Article 9 has led the Tribunal to take steps to test the evidence provided by the Philippines and to augment the record by seeking additional evidence, expert input, and Party submissions relevant to questions arising in this merits phase, including as to the status of features in the South China Sea, the allegations concerning violations of maritime safety obligations, and claims about damage to the marine environment.” 975 The arbitral tribunal decides upon its own procedures, unless the parties agree otherwise 976, which means that this process can be more flexible than judicial settlement of disputes. Proceedings that begin as Annex VII arbitration can be transferred, by agreement of the parties, to a different forum 977. If continued to the issuance of an award, awards are final and without appeal (unless the parties agree in advance to an appellate procedure), and are to be complied with by the parties 978. The arbitral tribunal must have jurisdiction over the dispute and various challenges in that regard might be brought by a defendant State in disputes relating to 975   The South China Sea Arbitration (Philippines v. China), Award of 12 July 2016, PCA Case No. 2013-19, p. 50, para. 131. 976   LOS Convention, Annex VII, Art. 5. 977   Three cases that started as Annex VII arbitrations were later transferred to ITLOS : The M/V “SAIGA” Case (Saint Vincent and the Grenadines v. Guinea) (Case No. 1), Judgment of 4 December 1997, ITLOS Reports 1997, p. 16 ; Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/ Myanmar) (Case No. 16), ITLOS Reports 2012 ; Dispute concerning Delimitation of the Maritime Boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case No. 23). 978   LOS Convention, Annex VII, Art. 11.

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islands. For example, the presence of numerous islands in such a dispute may impede the ability of a dispute settler to delimit a continental shelf zone, unless that settler is empowered to settle differences relating to the territorial sea as well. In the Anglo/French Continental Shelf case, the tribunal found itself incapable of delimiting the seabed and subsoil boundary between the Channel Islands archipelago and the French coast, because it had only been empowered to delimit the continental shelf and not the territorial sea 979. As such, the tribunal confined itself “to deciding the course of the boundary of the continental shelf in the areas to the north and the west of the Channel Islands in so far as this does not involve the delimitation of the territorial sea of either Party” 980. In the Philippines v. China arbitration, a key jurisdictional issue concerned China’s invocation of the optional exceptions to binding compulsory dispute resolution with respect to both sea boundary delimitations and historic bays and titles 981. Although China did not appear in the case, the tribunal concluded that it had to give effect to those exceptions if applicable to the claims advanced by the Philippines 982. Ultimately, the tribunal concluded that its decisions did not entail delimiting of 979   Delimitation of the Continental Shelf (UK, France), 1977, pp. 21-24, paras. 13-21. 980   Ibid., p. 24, para. 21. 981   For China’s declaration invoking those optional exceptions, see United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations Convention on the Law of the Sea : Declarations made upon signature, ratification, accession or succession or anytime thereafter : China, available at : http ://www.un.org/ depts/los/convention_agreements/convention_declarations. htm#China%20Upon%20ratification. 982   The South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19, pp. 138-140, paras. 390-396.

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maritime areas 983 or addressing historic bays or titles 984, thereby allowing jurisdiction, but it did decline to address a Philippine submission concerning a China-Philippines military stand-off at a feature in the Spratly Islands called Second Thomas Shoal 985. A further important issue that has arisen in the context of Annex VII arbitrations concerns the inability of the tribunal to decide issues of sovereignty over land territory. Dispute resolution under the LOS Convention is limited to disputes concerning the interpretation or application of the Convention 986. The Convention speaks to various rights and obligations of States with respect to maritime spaces, but does not address questions of sovereignty over land, which instead are addressed through other sources of international law. At the same time, it is commonly said that the “land dominates the sea” 987, and the reality is that a State’s rights and obligations in maritime spaces in many respects turn upon sovereignty over adjacent land territory, such that a court or tribunal under the LOS Convention may be quite limited in its ability to decide issues involving mixed territorial and maritime disputes. This issue has featured in two recent arbitrations. In the Chagos Marine Protected Area Arbitration, the United 983   Op. cit. supra, footnote 982, pp. 141-142, paras. 400401 ; ibid., Award of 12 July 2016, pp. 176-178, paras. 391-396. 984   Ibid., Award of 12 July 2016, pp. 96-97, paras. 225-228. 985   Ibid., pp. 452-456, paras. 1150-1162. 986   LOS Convention, Art. 288 (1) (“A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning the interpretation or application of this Convention which is submitted to it in accordance with this Part”). 987   See, e.g., Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001, p. 97, para. 185 (“In previous cases the Court has made clear that maritime rights derive from the coastal State’s sovereignty over the land, a principle which can be summarized as ‘the land dominates the sea’ (North Sea Continental Shelf, ICJ Reports 1969, p. 51, para. 96 ; Aegean Sea Continental Shelf, ICJ Reports 1978, p. 36, para. 86)”).

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Kingdom in April 2010 declared a marine protected area at the Chagos Archipelago, which the United Kingdom administers as the “British Indian Ocean Territory”. Mauritius disputes the United Kingdom’s sovereignty over this territory, believing it should have been included as part of the territory of Mauritius when Mauritius emerged from the period of colonization and became an independent State in 1968. Consequently, in December 2010, Mauritius initiated proceedings before an Annex VII arbitral tribunal under the LOS Convention. The LOS Convention allows a “coastal State” to establish a marine protected area adjacent to its coast. One aspect of Mauritius’s claims was that the United Kingdom was not the “coastal State” in respect of the Chagos Archipelago for the purposes of the Convention. Alternatively, Mauritius claimed that certain undertakings by the United Kingdom had endowed Mauritius with rights as a “coastal State” in respect of the archipelago. The tribunal, in March of 2015, found by a majority of three votes to two that it lacked jurisdiction to consider either of these claims 988. According to the tribunal, it was necessary to determine “where the relative weight of the dispute lies” 989. These Mauritian claims – at their core – concerned the question of sovereignty over the Chagos Archipelago, and not disagreements about the meaning of “coastal State” or some other issue relating to the marine protected area. Therefore, according to the 988   Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3, paras. 203-221, 228-230, and 547 (A) (1). The tribunal also unanimously found that there was no dispute between the parties with respect to Mauritius’s claim concerning submissions to the Commission on the Limits of the Continental Shelf, and therefore that it was not required to rule on whether it had jurisdiction over the claim. Ibid., paras. 331-350, 547 (A) (2). 989   Ibid., pp. 87-88, para. 211.

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tribunal, these claims were not truly a matter concerning the interpretation or application of the LOS Convention. The tribunal, however, did not assert that the issue of sovereignty could never be addressed in proceedings under the LOS Convention. Rather, the tribunal said that, as a general matter, “where a dispute concerns the interpretation or application of the Convention, the jurisdiction of a court or tribunal pursuant to Article 288 (1) extends to making such findings of fact or ancillary determinations of law as are necessary to resolve the dispute presented to it” 990. The tribunal further stated that it did “not categorically exclude that in some instances a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation and application of the Convention” 991. Interestingly, the tribunal unanimously found that it had jurisdiction to consider Mauritius’s claim that the United Kingdom’s declaration of the marine protected area was incompatible with the United Kingdom’s 992 obligations under various provisions  of the LOS Convention 993. The reason for this is that, starting in 1965, the United Kingdom made undertakings to   Op. cit. supra, footnote 988, p. 90, para. 220.   Ibid., para. 221 ; see also ibid., pp. 89-90, para. 218 (suggesting that an a contrario reading of the sovereignty exclusion from conciliation proceedings, which appears in Article 298, paragraph 1 (a) (i), may support the proposition that “an issue of land sovereignty might be within the jurisdiction of a Part XV court or tribunal if it were genuinely ancillary to a dispute over a maritime boundary or a claim of historic title”). For criticism, see Stefan Talmon, “The Chagos Marine Protected Area Arbitration”, op. cit., pp. 934-936. 992   LOS Convention, Arts. 2 (3), 56 (2), 194, 300. 993   Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3, paras. 283-323, 547 (A) (3). 990

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Mauritius which demonstrate that Mauritius holds certain legally binding rights : fishing rights in the waters surrounding the Chagos Archipelago ; a right to the eventual return of the Chagos Archipelago to Mauritius when it is no longer needed for defence purposes ; and a right to the preservation of the benefit of any minerals or oil discovered in or near the Chagos Archipelago pending its eventual return 994. Indeed, the tribunal found that such undertakings give “Mauritius an interest in significant decisions that bear upon the possible future uses of the Archipelago” 995. Given these rights, and the United Kingdom’s failure to give due regard to them, the tribunal found that the United Kingdom had breached certain obligations 996 under the LOS Convention in declaring the marine protected area 997. The issue of sovereignty also featured in the Philippines v. China arbitration. Although China did not participate in the proceedings, its public statements made clear that it regarded the tribunal as lacking jurisdiction in part because the “essence of the subject-matter of the arbitration is the territorial sovereignty over several maritime features in the South China Sea, which is beyond the scope of the Convention and does not concern the interpretation or application of the Convention” 998. 994   Op. cit. supra, footnote 993, pp. 25-29, para. 77 (Lancaster House undertakings). 995   Ibid., p. 116, para. 298. 996   LOS Convention, Arts. 2 (3), 56 (2), and 194 (4). 997   Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, PCA Case No. 2011-3, paras. 417-456, 499-544, and 547 (B). 998   Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014, para. 3, available at : http :// www.fmprc.gov.cn/mfa_eng/zxxx_662805/t1217147.shtml ; The South China Sea Arbitration (Philippines v. China), Award

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The Philippines, however, did not ask the tribunal to decide whether a particular maritime feature in the South China Sea fell within the sovereignty of either China or the Philippines. Rather, the Philippines asked the tribunal to determine whether particular features were capable of sovereign appropriation ; under the LOS Convention, as noted in prior chapters, submerged and low-tide elevations are not capable of being under a State’s sovereignty unless they exist in the State’s territorial sea 999. The tribunal approached the issue by stating that it “might consider that the Philippines’ Submissions could be understood to relate to sovereignty if it were convinced that either (a) the resolution of the Philippines’ claims would require the Tribunal to first render a decision on sovereignty, either expressly or implicitly ; or (b) the actual objective of the Philippines’ claims was to advance its position in the Parties’ dispute over sovereignty” 1000. Yet the tribunal was not convinced by either proposition. Consistent with the Philippines’ submissions, the tribunal agreed to proceed by addressing the nature of various maritime features, without expressing any view on which State, if any, had sovereignty over the feature 1001. Where the feature was found to be fully submerged or a low-tide elevation outside a territorial sea, the tribunal determined that the feature was incapable, by itself, of generating on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19, paras. 133-137 ; Talmon and Jia (eds.), The South China Sea Arbitration : A Chinese Perspective, op. cit. ; Sienho Yee, “The South China Sea Arbitration (The Philippines v. China) : Potential Jurisdictional Obstacles or Objections”, Chinese Journal of International Law, Vol. 13 (2014), p. 633. 999   See The South China Sea Arbitration (Philippines v. China), Award on Jurisdiction and Admissibility of 29 October 2015, PCA Case No. 2013-19, pp. 48-53, paras. 140-145. 1000   Ibid., pp. 59-60, para. 153. 1001   Ibid., pp. 57-60, paras. 148-154.

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maritime zones 1002. An ancillary consequence of this determination was that no State could claim sovereignty over the feature, but that consequence was not the aim of either the Philippines or the tribunal. Where the feature was determined to be an island, the tribunal further determined whether it was an Article 121, paragraph 3, “rock”, in which case it could not generate an exclusive 1003 economic zone or a continental shelf  . In such instances, the tribunal made no determination as to which State was sovereign over that island. A decision that a feature is of a nature that it cannot generate a territorial sea is, of course, a decision that touches on the issue of sovereignty ; indeed, it implicitly rejects a claim of sovereignty by any State over such a feature. Yet such a decision principally concerns the interpretation or application of the maritime regime established under the LOS Convention ; the issue of sovereignty is an ancillary matter. Indeed, if a State engaged in violations of the LOS Convention in the territorial sea, exclusive economic zone, or continental shelf of another State could defeat that State’s effort to invoke compulsory dispute settlement simply by asserting “I am sovereign over the seabed in that area”, then dispute settlement under the Convention would be ephemeral. Where an arbitral tribunal (or an international court) is empowered to decide issues of sovereignty, that issue is typically decided first, perhaps as part of one phase in the case, and then delimitation issues are decided second. Thus, the Eritrea-Yemen arbitration proceeded with a first phase addressing issues of sovereignty 1004 and 1002   Op. cit. supra, footnote 999, Award of 12 July 2016, pp. 143-174, paras. 333-384. 1003   Ibid., paras. 473-648. 1004   Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), 1998.

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then a second phase addressing issues of delimitation 1005. The International Court of Justice has taken the same approach of deciding sovereignty first and then delimitation, though often this is done in the same phase of the case. States may see advantages to arbitration over judicial settlement, since the former provides to States greater control over the composition of the dispute settlement body, greater control over the venue, most likely greater speed in resolution of the dispute, and greater control over the degree to which the proceedings will be public 1006. At the same time, there are disadvantages, and the frequency of Annex VII arbitration may simply be because that is the default procedure under the LOS Convention if the parties cannot agree on an alternative approach. One disadvantage may be cost of arbitration 1007, given that the entire process (including compensation and expenses of the arbitrators and the registry) must be funded by the parties. Another disadvantage may be the need to establish the arbitral panel, given that the parties at the outset must reach agreement on some of the arbitrators and, if they cannot, must engage the assistance of the appointing authority. F.  Islands and Judicial Settlement 1.  Contentious cases Judicial settlement in contentious cases relating to island disputes typically occurs either before ITLOS or the International Court of Justice, each of which is discussed briefly below. 1005   Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), 1999. 1006   Karaman, op. cit., p. 212. 1007   Ibid., p. 213.

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(a)  International Tribunal for the Law of the Sea After entry into force of the LOS Convention, ITLOS was established in Hamburg, Germany 1008. Operating pursuant to Annex VI of the LOS Convention, ITLOS consists of 21 judges elected by the States Parties to the LOS Convention 1009. Each State Party may nominate up to two candidates, and no two judges may be nationals of the same State 1010. Moreover, to preserve an equitable geographical balance, there is an agreed distribution of seats among the regional groups. Members are elected for nine years and may be re-elected ; the terms of onethird of the members expire every three years 1011. ITLOS has jurisdiction over disputes submitted to it in accordance with the LOS Convention or as provided for in any other agreement that confers jurisdiction upon it 1012. Thus, jurisdiction may arise between two States Parties that, when ratifying the LOS Convention, both selected ITLOS for the resolution of disputes, as well as disputes between States that ad hoc decide to resort to ITLOS. Further, ITLOS has jurisdiction with respect 1008   Regarding the establishment of ITLOS, see generally Shabtai Rosenne, “Establishing the International Tribunal for the Law of the Sea”, American Journal of International Law, Vol. 89 (1995), p. 806 ; Gudmundur Eiriksson, The International Tribunal for the Law of the Sea, Martinus Nijhoff, 2000 ; P. Chandrasekhara Rao and Rahmatullah Khan (eds.), The International Tribunal for the Law of the Sea : Law and Practice, Martinus Nijhoff, 2001 ; P. Chandrasekhara Rao and Philippe Gautier (eds.), The Rules of the International Tribunal for the Law of the Sea : A Commentary, Martinus Nijhoff, 2006. 1009   LOS Convention, Annex VI, Art. 2. 1010   Ibid., Arts. 3-4. 1011   Ibid., Art. 5. 1012   Ibid., Arts. 20-22. See generally Miguel García GarcíaRevillo, The Contentious and Advisory Jurisdiction of the International Tribunal for the Law of the Sea, Brill Nijhoff, 2015.

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to a request for the prompt release of a foreign vessel or crew seized for alleged illegal fishing in the exclusive economic zone of a coastal State 1013. As previously noted, ITLOS has jurisdiction to grant provisional measures of protection, which it might be called upon to do either in its own cases or in advance of the establishment of an Annex VII or Annex VIII arbitral tribunal 1014. Despite the sophistication of the dispute resolution process, litigation before ITLOS has been modest. From 1994 to 2016, 25 cases were filed at ITLOS, but they mostly related to requests for prompt release of vessels or crew, or provisional measures pending the constitution of an arbitral tribunal 1015. Some recent cases, however, have gone beyond such issues. In Case No. 16, ITLOS was called upon for the first time to issue a judgment delimiting a maritime boundary, in that instance between Bangladesh and Myanmar in the Bay of Bengal 1016. In Case No. 23, which remains pending, a chamber of ITLOS has been asked to delimit the maritime boundary between Ghana and Côte d’Ivoire in the Atlantic Ocean 1017.   LOS Convention, Art. 292.   Ibid., Art. 290 (5) ; ibid., Annex VI, Art. 25.   See ITLOS website : www.itlos.org. 1016   Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012. See generally Clive Schofield et al., “A Tribunal Navigating Complex Waters : Implications of the Bay of Bengal Case”, Ocean Development and International Law, Vol. 44 (2013), p. 363  ; M. Kaldunski and T. Wasilewski, “The International Tribunal for the Law of the Sea on Maritime Delimitation : The Bangladesh v. Myanmar Case”, Ocean Development & International Law, Vol. 45 (2014), p. 137. 1017   Delimitation of the Maritime Boundary in the Atlantic Ocean (Ghana/Côte d’Ivoire) (Case No. 23), available at : https://www.itlos.org/en/cases/list-of-cases/case-no-23. 1013 1014 1015

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(b)  International Court of Justice By contrast, since 1994 the International Court of Justice has played a rather active role in settling disputes relating to islands, continuing a role it has played since its inception 1018. The Court consists of 15 highly regarded jurists from across the globe, elected for nineyear, renewable terms by the UN General Assembly and UN Security Council 1019. Jurisdiction might be established at the International Court based on the LOS Convention, but to date the Court’s jurisdiction has been invoked in other ways, thereby allowing the Court at times to decide not just issues arising under the LOS Convention, but other issues as well, including claims to sovereignty. Perhaps for this reason, litigation at the Court over the status of islands has been quite lively, especially since the entry into force of the LOS Convention in 1994. In Qatar v. Bahrain 1020, the Court found that Bahrain has sovereignty over the Hawar Islands and the island of Qit’at Jaradah, while Qatar has sovereignty over Janan Island. In Sovereignty over Pulau Ligitan and Palau Sipadan between 1018   The ICJ’s predecessor court, the Permanent Court of International Justice (PCIJ) was far less active. The one delimitation case involving an island was ultimately withdrawn by the consent of the parties. Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia (Turkey v. Italy), Order of 26 January 1933, PCIJ, Series A/B, No. 51, p. 4. In Lighthouses in Crete and Samos (France/Greece), Judgment of 8 October 1937, PCIJ, Series A/B, No. 71, p. 94, the PCIJ addressed at what point the islands of Crete and Samos could be said to have been detached from the Ottoman Empire. As previously discussed, however, some of its cases contained important precedents for contemporary island disputes, such as Legal Status of Eastern Greenland (Denmark v. Norway). 1019   Statute of the International Court of Justice, Arts. 3-4, 13. 1020   Maritime Delimitation and Territorial Questions (Qatar v. Bahrain), ICJ Reports 2001.

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1021 Indonesia and Malaysia  , the Court found that Malaysia is sovereign over two very small islands located in the Celebes Sea. In Territorial and Maritime Dispute, the Court concluded that Honduras is sovereign over the small islands of Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay 1022. In Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge between Malaysia and Singapore 1023, the Court recognized Singapore’s sovereignty over Pedra Branca/ Pulau Batu Puteh, but accorded to Malaysia sovereignty over Middle Rocks 1024. In Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court recognized Colombia’s sovereignty over various islands when delimiting its maritime boundary with Nicaragua 1025. Even so, there are limitations to the Court’s jurisdiction as well. The Court does not have jurisdiction over all disputes that arise among States, including those concerning islands. Rather, disputes before the Court arise when two States agree to take the dispute to the Court or when there is a treaty between them allowing for the Court’s jurisdiction over the dispute 1026. Further, the 1021   Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, p. 625. 1022   Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007, p. 659. 1023   Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, p. 12. 1024   As noted in Chapter III, in February 2017 Malaysia filed an application with the Court for revision of its 2008 judgment in this case, asserting that new facts had come to light from the colonial period demonstrating that Pedra Branca/Pulau Batu Puteh was not regarded by UK authorities as a part of Singapore’s sovereign territory. 1025   Territorial Dispute and Maritime Delimitation (Nicaragua v. Colombia), ICJ Reports 2012, pp. 641-662, paras. 25103. 1026   Statute of the International Court of Justice, Arts. 36 (1), 37.

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Court may have jurisdiction when both States have filed unilateral declarations accepting the Court’s compulsory jurisdiction 1027. In filing such declarations, however, some States have excluded disputes relating to maritime matters, which could affect the ability of the Court to resolve disputes relating to islands in some situations 1028. Canada successfully invoked such an exclusion with respect to its enforcement action against a Spanish vessel located on the high seas (but within the regulatory area of the Northwest Atlantic Fisheries Organization) leading to the dismissal by the Court of Spain’s case 1029.   Op. cit. supra, footnote 1026, Art. 36 (2).   See, e.g., Australia Declaration of 22 March 2002 (excluding “any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”) ; Barbados Declaration of 1 August 1980 (excluding “disputes arising out of or concerning jurisdiction or rights claimed or exercised by Barbados in respect of the conservation, management or exploitation of the living resources of the Sea, or in respect of the prevention or control of pollution or contamination of the marine environment in marine areas adjacent to the coast of Barbados”) ; Greece declaration of 14 January 2015 (“any dispute concerning State boundaries or sovereignty over the territory of the Hellenic Republic, including any dispute over the breadth and limits of its territorial sea and its airspace”) : Japan declaration of 6 October 2015 (“any dispute arising out of, concerning, or relating to research on, or conservation, management or exploitation of, living resources of the sea”) ; New Zealand declaration of 23 September 1977 (“Disputes arising out of, or concerning the jurisdiction or rights claimed or exercised by New Zealand in respect of the exploration, exploitation, conservation or management of the living resources in marine areas beyond and adjacent to the territorial sea of New Zealand but within 200 nautical miles from the baselines from which the breadth of the territorial sea is measured”), all available at : http ://www.icj-cij.org. 1029   Fisheries Jurisdiction (Spain v. Canada), ICJ Reports 1998, p. 432. 1027 1028

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2.  Advisory opinions Advisory opinions issued by either the International Court or by ITLOS can also feature in dispute settlement under the law of the sea. To date, they have not featured in the context of developing international law relating to islands, but the possibility exists for the future. With respect to the International Court, its advisory opinions typically arise in the context of the fulfilment of the functions of UN organs or specialized agencies, but they often make significant contributions to important substantive areas of international law that extend beyond the confines of the opinion. Among the specialized agencies authorized by the UN General Assembly to seek an advisory opinion from the Court is the International Maritime Organization (IMO) ; indeed, the Court provided an advisory opinion to the IMO at a time when it was named the Inter-Governmental Maritime Consultative Organization 1030. The request must relate to a legal question and the International Court regards itself as empowered to decline to provide the opinion, though to date it has never done so. If requested by a competent UN organ, such as the UN General Assembly, or a competent UN specialized agency, such as the IMO, the Court is certainly capable of providing advice on an aspect of international law relating to islands. With respect to ITLOS, the Tribunal in 2015 issued its first advisory opinion based on a request from the Sub-Regional Fisheries Commission, which is a fisheries commission comprising seven West African nations 1031. The Commission asked ITLOS four questions relating to the rights and obligations of flag and coastal States 1030   Advisory Opinion on Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, ICJ Reports 1960, p. 150. 1031   Those States are  : Cape Verde  ; Gambia  ; Guinea  ; Guinea-Bissau ; Mauritania ; Senegal ; and Sierra Leone.

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regarding fishing in the exclusive economic zone, such as to what extent a flag State may be held liable for illegal fishing activities conducted by vessels sailing under its flag 1032. The backdrop to this request were allegations by West African States of illegal, unreported or unregulated fishing off the coast of West Africa that was imperilling fish stocks. Twenty-two States Parties to the LOS Convention filed written statements with ITLOS on these questions, as did the Commission and six other international organizations 1033. Interestingly, the United States was also permitted to file a written statement even though it is not a party to the LOS Convention, apparently because it is a party to the 1995 Straddling Fish Stocks Agreement 1034. An oral hearing was held in September 2014, at which 10 States Parties appeared, in addition to the Commission and two other international organizations 1035. Two general aspects of ITLOS’s advisory opinion are worth emphasizing. First, ITLOS found that it is empowered to issue an advisory opinion 1036, suggesting a potentially significant means of addressing issues relating to islands that are less susceptible to resolution through contentious cases. Whether ITLOS is so empowered under the LOS Convention was contested, with many States Parties arguing to ITLOS that it had no such advisory function (there being no provision in the LOS 1032   Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Case No. 21), Advisory Opinion of 2 April 2015, available at : https ://www.itlos.org/ fileadmin/itlos/documents/cases/case_no.21/advisory_opinion/ C21_AdvOp_02.04.pdf (reprinted in International Legal Materials, Vol. 54 (2015), p. 890). 1033   Ibid., p. 8, para. 17. 1034   Ibid., p. 10, para. 24. 1035   Ibid., p. 11, para. 29. 1036   Ibid., pp. 14-22, paras. 37-69.

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Convention clearly allowing it to do so) 1037. Second, with respect to substance, the advisory opinion provides a robust analysis of the obligations of flag States with respect to sustainable fisheries management, which may guide those States and their flag vessels in their conduct in exclusive economic zones, not just off the coast of West Africa but worldwide 1038. If so requested, in the future ITLOS might provide comparably robust advice relating to the interpretation or application of the LOS Convention to islands. G.  Commission on the Limits of the Continental Shelf Separate from the LOS Convention dispute settlement system, the Convention establishes in Annex II a Commission on the Limits of the Continental Shelf. The Commission itself does not directly resolve disputes, as it consists of experts charged with addressing technical issues, but it is a body that can play a role relevant to island disputes. The Commission consists of 21 members who are “experts in the field of geology, geophysics or hydrography, elected by States Parties to [the] Convention 1037   By contrast, the Tribunal’s Seabed Disputes Chamber was expressly accorded the power to issue advisory opinions. See LOS Convention, Art. 191. For a critique of the Tribunal’s assumption of this role, see Tom Ruys and Anemoon Soete, “  ‘Creeping’ Advisory Jurisdiction of International Courts and Tribunals ? The Case of the International Tribunal for the Law of the Sea”, Leiden Journal of International Law, Vol. 29 (2016), p. 155 ; Massimo Lando, “The Advisory Jurisdiction of the International Tribunal for the Law of the Sea : Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission”, Leiden Journal of International Law, Vol. 29 (2016), p. 441. 1038   Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Case No. 21), Advisory Opinion of 2 April 2015, pp. 25-59, paras. 85-219.

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from among their nationals, having due regard to the need to ensure equitable geographical representation, who shall serve in their personal capacities” 1039. LOS Convention Article 76, paragraph 8, provides that “[i]nformation on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to” the Commission 1040. Consequently, the Commission receives submissions from States about their claims to continental shelves extending beyond 200 nautical miles 1041. After receiving comments from other States, the Commission then issues “recommendations” to the submitting State. If the submitting State establishes the limits to its continental shelf in a manner that takes into account the Commission’s recommendations, then those limits shall be final and binding 1042. The Commission has no power to issue decisions binding upon States Parties to the LOS Convention, yet it appears to have a certain authority that can cast doubt upon a State Party’s divergent interpretation. One problem, first addressed in Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/   LOS Convention, Annex II, Art 2 (1).   Ibid., Art. 76 (8). 1041   See generally Coalter G. Lathrop, “Continental Shelf Delimitation beyond 200 Nautical Miles : Approaches Taken by Coastal States before the Commission on the Limits of the Continental Shelf”, in Colson and Smith (eds.), Vol. VI, op. cit., p. 4139. 1042   Ibid. ; see Cook and Carleton, op. cit., p. 20 ; Ted L. McDorman, “The Role of the Commission on the Limits of the Continental Shelf : A Technical Body in a Political World”, International Journal of Marine and Coastal Law, Vol. 17 (2002), p. 301 ; Michael Sheng-ti Gau, “The Commission on the Limits of the Continental Shelf as a Mechanism to Prevent Encroachment upon the Area”, Chinese Journal of International Law, Vol. 10 (2011), p. 3. 1039 1040

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Myanmar), is that in the event of a dispute over a State Party’s extended continental shelf beyond 200 nautical miles, the Commission (in accordance with its own rules and established practice) will not address a recommendation to the State Party. Yet if an international court or tribunal declines to adjudicate the dispute until the Commission issues a recommendation, then the result would be an impasse. ITLOS found in its 2012 judgment that it could proceed with a delimitation notwithstanding that one or both of the States Parties had a submission pending before the Commission 1043. The extent to which the LOS Convention’s rules on the outer continental shelf, and the Commission’s role, are relevant to States that are not parties to the LOS Convention remains uncertain. The International Court found in Territorial and Maritime Dispute (Nicaragua v. Colombia) that LOS Convention Article 76, paragraph 1 – which defines the continental shelf –, was customary international law, but it left unaddressed the other paragraphs of Article 76 1044. Building upon the reasoning of ITLOS in the Bay of Bengal case, the International Court – in a subsequent case between Nicaragua and Colombia focused exclusively on delimiting the continental shelf beyond 200 nautical miles – narrowly decided in 2016 that it could delimit such continental shelf between a State Party to the LOS Convention and a non-State Party, notwithstanding that the State Party had a submission pending before the 1043   Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar) (Case No. 16), ITLOS Reports 2012, p. 102, para. 392 (“In the view of the Tribunal, it would be contrary to the object and purpose of the Convention not to resolve the existing impasse”). In that case, it was undisputed that there existed an extended continental shelf in the Bay of Bengal. 1044   Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012, paras. 116-117, 139.

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Commission 1045. Even so, the Commission’s exact role vis-à-vis States that are not party to the LOS Convention remains to be seen. As of 2016, the Commission has received 77 submissions from States and has issued 22 recommendations. Such submissions include those by island States (such as Barbados, Fiji, Mauritius, Micronesia, Palau, Papua New Guinea, Seychelles, Solomon Islands) and by mainland States with respect to some of their island territories (such as Denmark’s Faroe Islands, France’s La Réunion Island, the United Kingdom’s Ascension Island, and Yemen’s Socotra Island) 1046. Hence, this institution provides States a forum for addressing issues concerning extended continental shelf claims, including those related to islands. 1045   Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast, paras. 104, 114 (“delimitation of the continental shelf beyond 200 nautical miles can be undertaken independently of a recommendation from the CLCS”). The judges were evenly split on whether there was juridiction to delimit the extended continental shelf, thus requiring the President to cast a second (and decisive) vote. Several dissenting judges maintained that the Court had previously rejected Nicaragua’s request not because of Nicaragua’s procedural posture before the Commission, but because Nicaragua had failed to establish the existence of an extended continental shelf that overlapped with Colombia’s 200-nautical-mile entitlement. That earlier decision was, in their view, res judicata. See op. cit. this footnote, joint dissenting opinion of Vice-President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge ad hoc Brower. 1046   See United Nations, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, Submissions, through the Secretary-General of the United Nations, to the Commission on the Limits of the Continental Shelf, pursuant to article 76, paragraph 8, of the United Nations Convention on the Law of the Sea of 10 December 1982, available at : http :// www.un.org/depts/los/clcs_new/commission_submissions.htm (last updated 28 October 2016).

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Yet there are limits to the role that the Commission plays, as may be seen in Japan’s 2008 submission to establish the outer limits of its continental shelf beyond 200 nautical miles 1047. Japan’s submission in part concerned the continental shelf associated with the island of Okinotorishima, which is located in an area referred to as the Southern Kyushu-Palau Ridge Region (“KPR”). Both China and the Republic of Korea submitted notes verbales contending that Okinotorishima was a “rock” within the meaning of LOS Convention Article 121, paragraph 3, and therefore was not entitled to a continental shelf 1048. Consequently, they asked the Commission to set aside the portions of Japan’s submission relating to the KPR. Other States noted that while the Commission lacks the mandate to determine Okinotorishima’s status with respect to Article 121, paragraph 3, the Commission could delineate outer limits conditionally, contingent upon a subsequent determination that the island is entitled to a continental shelf. Ultimately, the Commission decided in 2012 that it would not be able to make a recommendation relating to the KPR until the matters referred to in the communications by China and the Republic of Korea had been resolved. As a result, the Commission adopted by consensus recommendations regarding only six of 1047   See Japan’s Submission to the Commission on the Limits of the Continental Shelf pursuant to Article 76, paragraph 8, of the United Nations Convention on the Law of the Sea, Executive Summary (12 November 2008), available at : http ://www.un.org/Depts/los/clcs_new/submissions_files/ jpn08/jpn_execsummary.pdf. 1048   For these and other communications relating to Japan’s submissions, see Commission on the Limits of the Continental Shelf (CLCS) outer limits of the continental shelf beyond 200 nautical miles from the baselines : Submissions to the Commission : Submission by Japan (last updated 27 December 2013), available at  : http  ://www.un.org/Depts/los/clcs_new/ submissions_files/submission_jpn.htm.

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the seven regions raised in the submission made by Japan 1049. H. Conclusion Procedures available for resolving disputes relating to islands include traditional methods under international law for pacific settlement of disputes (negotiation, mediation, conciliation, arbitration, and judicial settlement). Indeed, many examples exist over the past two centuries in that regard, including the seminal Beagle Channel mediation, the Jan Mayan Island conciliation, or the Island of Palmas arbitration. The International Court of Justice has played an active role in addressing disputes relating to islands, particularly with respect to conflicting claims of sovereignty and of maritime boundary delimitation. Further, the dispute resolution procedures under the LOS Convention may also be available for maritime disputes concerning islands, depending on the exact nature of the dispute. Although only available since 1994, already several important island-related disputes have been addressed, such as the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) or the South China Sea Arbitration (Philippines v. China). Other means of dispute resolution may become more significant in years to come, including with respect to islands, such as the advisory opinion 1049   Commission on the Limits of the Continental Shelf, Summary of Recommendations of the Commission on the Limits of the Continental Shelf in Regard to the Submission Made by Japan on 12 November 2008 (19 April 2012), p. 5, para. 20, available at : http ://www.un.org/Depts/los/clcs_new/ submissions_files/jpn08/com_sumrec_jpn_fin.pdf. For analysis, see Michael Sheng-ti Gau, “Recent Decisions by the Commission on the Limits of the Continental Shelf on Japan’s Submission for Outer Continental Shelf”, Chinese Journal of International Law, Vol. 11 (2012), p. 487.

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jurisdiction of the International Tribunal for the Law of the Sea. The work of the Commission on the Limits of the Continental Shelf may also be relevant with respect to certain disputes relating to islands.

CHAPTER X

GENERAL CONCLUSIONS A series of law lectures on islands runs the risk of conveying the impression that there is a specialized area of international law that relates exclusively to islands. This is not the case ; indeed, the title of these lectures is international law “relating to” not “of” islands. Although there are some rules that are unique to islands, such as LOS Convention Article 121, as a general matter islands are simply one subject matter area to which various rules of international law may be applied. Even so, consideration of those rules in the context of islands is a worthy exercise. As discussed in Chapter II, there exist various disputes around the world among States with respect to the legal status or consequences of islands, be it in the form of claims to sovereignty, the drawing of baselines, the delimitation of maritime spaces or otherwise. Chapter II did not identify all such disputes over islands but, rather, highlighted their ubiquitous presence across regions. International law serves an important role in helping to address such disputes, both through rules of general application and rules directed specifically at islands. Chapter III principally focused on the definition of an “island” as a matter of international law. LOS Convention Article 121 defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide”, to be distinguished from features that are fully submerged or only above water at low-tide. Once it is established that a feature is an island, Article 121, paragraph 3, draws an important distinction : normally islands are entitled to a full range of maritime zones,

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including an exclusive economic zone and a continental shelf, but islands that are “rocks which cannot sustain human habitation or economic life of their own” are not entitled to such zones, capable only of generating a territorial sea and a contiguous zone. Thus, determining what is meant by a paragraph 3 “rock” is a central issue for some island disputes. The 2016 South China Sea Arbitration (Philippines v. China) offered the first significant guidance in this regard by an international court or tribunal, with an overriding theme that Article 121, paragraph 3, seeks to identify features where extended maritime zones are not needed to help support human habitation or economic life on the island itself. It is often said that “the land dominates the sea”, and a State’s sovereignty over an island must first be established before exercising sovereignty, sovereign rights, or jurisdiction in the waters surrounding the island. Chapter IV discussed, with reference to relevant case law, how sovereignty or “title” to an island may arise : by discovery of territory that is terra nullius ; by agreement with another State that had sovereignty or a claim to sovereignty ; by State succession ; by military conquest ; or by continuous and peaceful display of sovereignty. Other issues were also considered, such as the significance of proximity, the role of maps as evidence, and the relevance of doctrines of acquiescence, estoppel, abandonment. Among other things, it was noted that the relatively rigid approach of international law in regarding a State as either having or not having sovereignty in some instances has been softened, through co-operation between States with respect to joint administration of an island and access to its maritime zones. Chapter V considered the situation of islands found in rivers and lakes that serve as boundaries between two States. The same methods of securing title over an island arise in this situation, but some special problems, rules, and methods may come into play as well.

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Chapter VI focused on the connections between islands (as well as low-tide elevations) and maritime zones. Islands can be an important potential element when drawing the normal or a straight baseline of a mainland, whether the islands are fringing the coast or are located in bays. Once the baselines are established, the extent of the territorial sea may be declared, including over low-tide elevations located therein. Like any mainland, an island at sea is subject to the same rules on baselines and can generate the same maritime zones, except for the limitations imposed on a “rock” within the meaning of LOS Convention Article 121, paragraph 3. Special rules govern the drawing of baselines and the maritime zones of an archipelagic State. Islands can also be associated with claims as to historic titles, bays, and rights, as well as artisanal (traditional) fishing rights. Chapter VII was devoted to the way that islands can feature in disputes concerning the delimitation of maritime zones. The location of a State’s island is often a threshold issue : it may be located close to the State’s mainland coast, raising questions as to whether it should be used to provide base points for delimiting maritime zones with another State. If the State’s island is located further out to sea, the maritime zones it generates may also overlap with the maritime zones of another State. While an equidistance line may be a standard way of establishing a maritime boundary between two adjacent or opposite States, agreeing on such a boundary may be difficult in the presence of islands, especially when a State’s islands are located on the “wrong side” of such an equidistance line when drawn from two mainlands. If an equidistance approach is used, lesser effect may be given to small islands in relation to larger islands or a mainland. Yet the presence of islands may prompt partial or complete abandonment of the equidistance approach in favour of alternative methods of delimitation, such as

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through an angle-bisector line or by enclaving the island partially or fully. Chapter VIII considered the legal consequences of changes in islands over time, which may affect the location of baselines or even the entitlement to maritime zones. While such changes may arise from the normal influence of the Earth’s geophysical forces, global climate change is leading to an increase in sea levels and harsher weather conditions that threaten not just the size and habitability of some islands, but their very existence as well. Traditional approaches of international law are not well-suited to address the significant issues that can arise from these issues ; consequently, this area will be an important and difficult challenge for international lawyers in the years to come. Given the conflicts that have arisen arise between States with respect to islands, this is an area where dispute resolution is robust, ranging from older cases such as the Beagle Channel mediation, the Jan Mayan Island conciliation, or the Island of Palmas arbitration, to more recent disputes such as the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) or Territorial and Maritime Dispute (Nicaragua v. Colombia). Chapter IX discussed how various well-developed procedures are available to States for resolving such disputes relating to islands, whether it be through negotiation, mediation, conciliation, arbitration, or judicial settlement. The International Court of Justice has played a particularly active role in addressing disputes relating to islands in recent years, with respect to both conflicting claims of sovereignty and maritime boundary delimitation, and is now joined by the institutional mechanisms for dispute settlement established under the LOS Convention. It is to be hoped that the considerable development of international law relating to islands in recent decades, coupled with increased opportunities for the pacific

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settlement of disputes, will allow States and other interested actors to resolve the many concerns that exist worldwide with respect to the status and consequences of islands.

BIBLIOGRAPHY Selected Judgments and Awards (Chronological Order) Declaration and decision of the Commissioners of Great Britain and the United States, under Article VI of the Treaty of Ghent of 1814, respecting Boundaries, relating to lakes Ontario, Erie and Huron and River St. Lawrence, 28 RIAA 11 (1822). Report of the Commissioners of Great Britain and the United States appointed to trace the Line of Boundary under Article VII of the Treaty of Ghent of 1814, nearby Sugar Island, 28 RIAA 17 (1826). Arbitral award relating to the issue of control and sovereignty over Aves island, raised between Venezuela and the Kingdom of the Netherlands, 28 RIAA 115 (1865). Arbitral award between Portugal and the United Kingdom, regarding the dispute about the sovereignty over the Island of Bulama, and over a part of the mainland opposite to it, 28 RIAA 131 (1870). The Alaska Boundary Case (Great Britain, United States), 15 RIAA 481 (1903). The Grisbådarna Case (Norway/Sweden), PCA Case No. 1908-01, 11 RIAA 147 (French), 4 AJIL 226 (1910) (English). The Chamizal Case (Mexico, United States), 11 RIAA 309 (1911). Boundaries in the Island of Timor (Netherlands v. Portugal), PCA Case No. 1913-01, 11 RIAA 481 (1914). George Rodney Burt (United States) v. Great Britain (Fijian Land Claims), 6 RIAA 93 (1923). Isaac M. Brower (United States) v. Great Britain (Fijian Land Claims), 6 RIAA 109 (1923). Island of Palmas (or Miangas) (The Netherlands/The United States of America), PCA Case No. 1925-01, 2 RIAA 829 (1928). Arbitral Award on the Subject of the Difference Relative to the Sovereignty over Clipperton Island (France v. Mexico), Decision of 28 January 1931, 26 Am. J. Int’l L. 390 (1932). Delimitation of the Territorial Waters between the Island of Castellorizo and the Coasts of Anatolia (Turkey v. Italy), Order of 26 January 1933, PCIJ, Series A/B, No. 51.

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Legal Status of Eastern Greenland (Denmark v. Norway), Judgment of 5 April 1933, PCIJ, Series A/B, No. 53. Lighthouses in Crete and Samos (France/Greece), Judgment of 8 October 1937, PCIJ, Series A/B, No. 71. Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951 116. The Minquiers and Ecrehos Case (France/United Kingdom), ICJ Reports 1953 47. Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), ICJ Reports 1960 192. The Indo-Pakistan Western Boundary (Rann of Kutch) between India and Pakistan (India, Pakistan), 17 RIAA 1 (1968). Dispute between Argentina and Chile concerning the Beagle Channel, 21 RIAA 53 (1977). Delimitation of continental shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of 30 June 1977, 18 RIAA 3 (1977). Delimitation of continental shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of 14 March 1978, 18 RIAA 271 (1978). Aegean Sea Continental Shelf Case (Greece v. Turkey), ICJ Reports 1978 3. Conciliation Commission on the Continental Shelf area between Iceland and Jan Mayen : Report and recommendations to the governments of Iceland and Norway, Decision of June 1981, 27 RIAA 1 (1981). Dubai/Sharjah Border Arbitration, Award of 19 October 1981, 91 ILR 543 (1981). Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982 18. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), ICJ Reports 1984 246. Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985 13. Ad Hoc Arbitration Tribunal Award Judicial and Similar Proceedings : Dispute concerning Delimitation of the Maritime Boundary (Guinea/Guinea-Bissau), 25 ILM 251 (1985). Frontier Dispute (Burkina Faso/Republic of Mali), ICJ Reports 1986 554. Delimitation of Maritime Areas between Canada and

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France (St. Pierre and Miquelon), 31 ILM 1145 (English), 21 RIAA 265 (1992) (French). Land, Island and Maritime Frontier Dispute (El Salvador/ Honduras : Nicaragua intervening), ICJ Reports 1992 351. Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), ICJ Reports 1993 38. East Timor (Portugal v. Australia), ICJ Reports 1995 90. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), ICJ Reports 1998 275. Territorial Sovereignty and Scope of the Dispute (Eritrea and Yemen), Decision of 9 October 1998, 22 RIAA 209. Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Decision of 17 December 1999, 22 RIAA 335. Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999 1045. Southern Bluefin Tuna (New Zealand-Japan, AustraliaJapan), ITLOS Case Nos. 3 & 4, Award on Jurisdiction and Admissibility of 4 August 2000, 23 RIAA 1. The “Camouco” Case (Panama v. France), ITLOS Case No. 5, Judgment of 7 February 2000, 39 ILM 666 (2000). The “Monte Confurco” Case (Seychelles v. France), ITLOS Case No. 6, Judgment of 18 December 2000. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), ICJ Reports 2001 40. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), ICJ Reports 2002 303. Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002 625. The “Volga” Case (Russian Federation v. Australia), ITLOS Case No. 11, Judgment of 23 December 2002. Application for Revision of the Judgment of 11 September 1992 in the Case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua intervening) (El Salvador v. Honduras), ICJ Reports 2003 392. Frontier Dispute (Benin/Niger), ICJ Reports 2005 90. Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, PCA Case No. 2004-02, Decision of 11 April 2006, 27 RIAA 147.

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Delimitation of the Maritime Boundary (Guyana v. Suriname), Award of 17 September 2007, 30 RIAA 1. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), ICJ Reports 2007 661. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of 13 December 2007 (Preliminary Objections), ICJ Reports 2007 833. Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008 14. Maritime Delimitation in the Black Sea (Romania v. Ukraine), ICJ Reports 2009 62. Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Case No. 16, Judgment of 14 March 2012, 12 ITLOS Reports 4. Territorial and Maritime Dispute (Nicaragua v. Colombia), ICJ Reports 2012 624. Maritime Dispute (Peru v. Chile), ICJ Reports 2014 137. The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v. The European Union), PCA Case No. 2013-30 (2014). Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), PCA Case No. 20011-03, Award of 18 March 2015. Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), PCA Case No. 2010-16, Award of 7 July 2014. Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment of 16 December 2015, available at : http ://www.icj-cij.org/docket/files/152/18848.pdf. The South China Sea Arbitration (Philippines v. China), PCA Case No. 2013-19, Award on Jurisdiction and Admissibility of 29 October 2015. The South China Sea Arbitration (Philippines v. China), PCA Case No. 2013-19, Award of 12 July 2016. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Judgment of 17 March 2016, available at : http ://www.icj-cij.org/ docket/files/154/18956.pdf. Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Judgment of 2 February 2017, available at : http :// www.icj-cij.org/docket/files/161/19330.pdf.

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Books on Islands and International Law Bacot, P., and A. Geslin (eds.), Insularité et sécurité : l’île entre sécurité et conflictualité (Bruylant, 2014). Baldacchino, G., and D. Milne (eds.), The Case for Non-Sovereignty : Lessons from Sub-National Island Jurisdictions (Routledge, 2009). Bergmann, N., Versinkende Inselstaaten : Auswirkungen des Klimawandels auf die Staatlichkeit kleiner Inselstaaten (Duncker & Humblot, 2016). Bouroncle, G., Influence of Islands in Maritime Boundaries : The 1952 Santiago Declaration (Lambert Academic Publishing, 2012). Bowett, D., The Legal Regime of Islands in International Law (Oceana Publications, 1979). Castangia, I., Sovranità, contiguità territoriale e isole in una controversia internazionale del XVIII secolo (E. Jovene, 1988). Camprubí, A. T., Statehood under Water : Challenges of Sealevel Rise to the Continuity of Pacific Island States (Brill Nijhoff, 2016). Dipla, H., Le régime juridique des îles dans le droit international de la mer (Presses Universitaires de France, 1984). Frosini, T. E., Isole nel diritto pubblico comparato ed europeo (Giappichelli, 2007). Gerrard, M. B., and G. E. Wannier (eds.), Threatened Island Nations : Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, 2013). Fitzpatrick, C., Künstliche Inseln und Anlagen auf See : Der völkerrechtliche Rahmen für die Errichtung und den Betrieb künstlicher Inseln und Anlagen (Peter Lang, 1998). Jayaraman, K., Legal Regime of Islands (Marwah Publications, 1982). Jayewardene, H. W., The Regime of Islands in International Law (Martinus Nijhoff, 1990). Kopela, S., Dependent Archipelagos in the Law of the Sea (Martinus Nijhoff, 2013). Lattion, R., L’archipel en droit international (Lausanne, Editions Payot, 1984). Munavvar, M., Ocean States : Archipelagic Regimes in the Law of the Sea (Martinus Nijhoff, 1995). Papadakis, N., The International Legal Regime of Artificial Islands (Sijthoff, 1977). Pazarci, H., La délimitation du plateau continental et les îles (University of Ankara, 1982).

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Rayfuse, R., and S. Scott (eds.), International Law in the Era of Climate Change (Edward Elgar, 2012). Stoutenburg, J. G., Disappearing Island States in International Law (Brill Nijhoff, 2015). Symmons, C. R., The Maritime Zones of Islands in International Law (Martinus Nijhoff, 1979). United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea : Régime of Islands : Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea, Part 8 (United Nations, 1988). Yamamoto, L., and M. Esteban, Atoll Island States and International Law : Climate Change Displacement and Sovereignty (Springer, 2014). Books Addressing Specific Islands or Island Areas Bahcheli, T., Greek-Turkish Relations Since 1955 (Westview, 1990). Bardonnet, D., La succession d’états à Madagascar (Pichon and Durand-Auias, 1970). Beckman, R., et al. (eds.), Beyond Territorial Disputes in the South China Sea : Legal Frameworks for the Joint Development of Hydrocarbon Resources (Edward Elgar, 2013). Bélorgey, G., Saint-Pierre-et-Miquelon et le droit de pêche dans l’Atlantique nord-ouest (La Documentation Française, 1993). Boyce, P. J., and M. White (eds.), The Torres Strait Treaty (ANU Press, 1981). Buszynski, L., and C. B. Roberts (eds.), The South China Sea Maritime Dispute : Political, Legal and Regional Perspectives (Routledge, 2015). Chemillier-Gendreau, M., Sovereignty over the Paracel and Spratley Islands (Kluwer, 2000). Chung, C., Contentious Integration : Post-Cold War Japan-China Relations in the Asia-Pacific (Routledge, 2014). Cribb, R., and M. Ford, Indonesia beyond the Water’s Edge : Managing an Archipelagic State (Institute of Southeast Asian Studies, 2009). Eldridge, R. D., The Origins of U.S. Policy in the East China Sea Islands Dispute : Okinawa’s Reversion and the Senkaku Islands (Routledge, 2014). Ferrer Vieyra, E., Las islas Malvinas y el derecho internacional (Lerner Editoria, 2nd ed., 2007).

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ABOUT THE AUTHOR

Biographical Note Sean David Murphy, born 14 October 1960 at Washington, DC (USA). Studied at the Columbia University School of Law (19821985), the University of Cambridge (1986-1987), and the University of Virginia School of Law (1993-1995), receiving J.D., LL.M., and S.J.D. degrees respectively. Member, United Nations International Law Commission (since 2012) ; Special Rapporteur for Crimes against Humanity (since 2014). Patricia Roberts Harris Research Professor, George Washington University Law School (since 1998) ; Visiting Professor at University of Göttingen (2008), Université de Paris X (Ouest–Nanterre La Défense) (2014), and University of Melbourne (2015) ; Lecturer, United Nations Regional Courses in International Law (for Africa, Arab States, and Asia-Pacific) (since 2015). Law clerk, US District Court, Washington, DC (19851986) ; Attorney-Adviser, Office of the Legal Adviser, US Department of State (1987-1995) ; Legal Counselor, US Embassy, The Hague, Netherlands (1995-1998) ; US Agent to the Iran-United States Claims Tribunal (1995-1998). President-elect, American Society of International Law (for 2018-2020) ; Vice-President (2016-2017) ; Counselor (2014-2015) ; Board of Editors, American Journal of International Law (2000-2010) ; Board of Editors, Journal of National Security Law & Policy (2010-2015) ; Member, American Law Institute (since 2012) ; Adviser, Restatement (Fourth) of the Foreign Relations Law of the United States (since 2012) ; Member, US Department of State Advisory Committee on International Law (1999-2016) ; Member, American Branch, International Law Association (since 2012) ; Member, American Bar Association (ABA) and ABA Section of International Law (since 1998). Recipient of : American Journal of International Law Francis Deák Prize for Outstanding Scholarship by a Younger Author (1995) ; US Department of State Superior Honor Awards (1989 and 1998) ; American Society of International Law Certificates of Merit for Preeminent

366

About the Author

Contribution to Creative Scholarship (1997) and for High Technical Craftsmanship (2003). Counsel before the International Court of Justice : for the United States in Elettronica Sicula S.p.A. (ELSI) (United States v. Italy), Aerial Incident of 3 July 1988 (Iran v. United States) (settled), Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. United States), Oil Platforms (Iran v. United States) ; for Macedonia in Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) ; for Kosovo in Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo ; for Uganda in Armed Activities on the Territory of the Congo (DRC v. Uganda). Associate Member, Matrix Chambers, London, United Kingdom (since 2015).

Principal Publications Books Humanitarian Intervention : The United Nations in an Evolving World Order, Philadelphia, Pennsylvania, University of Pennsylvania Press, 1996. United States Practice in International Law, Volume I : 19992001, Cambridge, United Kingdom, Cambridge University Press, 2002. United States Practice in International Law, Volume II : 20022004, Cambridge, United Kingdom, Cambridge University Press, 2005. Principles of International Law, 2nd ed., St. Paul, Minnesota, West Publishing Co., 2012. Foreign Relations and National Security Law, 4th ed., St. Paul, Minnesota, West Publishing Co., 2012 (with Thomas Franck, Michael Glennon and Edward Swaine). Litigating War : Mass Civil Injury and the Eritrea-Ethiopia Claims Commission, Oxford, United Kingdom, Oxford University Press, 2013 (with Won Kidane and Thomas Snider). International Law : Cases and Materials, 6th ed., St. Paul, Minnesota, West Publishing Co., 2014 (with Lori Damrosch).

About the Author

367

Articles and Book Chapters “The Impact on U.S. Litigation of Non-Recognition of Foreign Governments”, Stanford Journal of International Law, Vol. 26 (1989-1990), p. 435 (with Mary Beth West). “The ELSI Case : An Investment Dispute at the International Court of Justice”, Yale Journal of International Law, Vol. 16 (1991), p. 391. “The Role of Bilateral Defense Agreements in Maintaining the European Security Equilibrium”, Cornell International Law Journal, Vol. 24 (1991), p. 415. “Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes”, American Journal of International Law, Vol. 88 (1994), p. 24. “The Security Council, Legitimacy, and the Concept of Collective Security after the Cold War”, Columbia Journal of Transnational Law, Vol. 32 (1994), p. 201. “Democratic Legitimacy and the Recognition of States and Governments”, International and Comparative Law Quarterly, Vol. 48 (1999), p. 545. “Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, American Journal of International Law, Vol. 93 (1999), p. 57. “Securing Payment of the Award”, in David D. Caron and John R. Crook (eds.), The Iran-United States Claims Tribunal and the Process of International Claims Resolution, Transnational Publishers, 2000, p. 299. “Amplifying the World Court’s Jurisdiction through CounterClaims and Third Party Intervention”, George Washington International Law Review, Vol. 33 (2000), p. 5. “Biotechnology and International Law”, Harvard International Law Journal, Vol. 42 (2001), p. 47. “Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the U.N. Charter”, Harvard International Law Journal, Vol. 43 (2002), p. 41. “International Law, the United States, and the Non-Military ‘War’ against Terrorism”, European Journal of International Law, Vol. 14 (2003), p. 347. “Liability and the WHO Framework Convention on Tobacco Control”, International Law FORUM du Droit International, Vol. 5 (2003), p. 62. “Assessing the Legality of Invading Iraq”, Georgetown Law Journal, Vol. 92 (2004), p. 173. “The Doctrine of Preemptive Self-Defense”, Villanova Law Review, Vol. 50 (2005), p. 699. “Taking Multinational Corporate Codes of Conduct to the Next

368

About the Author

Level”, Columbia Journal of Transnational Law, Vol. 43 (2005), p. 389. “Self-Defense and the Israeli Wall Advisory Opinion : An Ipse Dixit from the ICJ ?”, American Journal of International Law, Vol. 99 (2005), p. 62. “Evolving Geneva Convention Paradigms in the ‘War on Terrorism’ : Applying the Core Rules to the Release of Persons Deemed ‘Unprivileged Combatants’ ”, George Washington Law Review, Vol. 75 (2007), p. 1105, reprinted in Michael N. Schmitt and Wolff Heintschel von Heinegg (eds.), Detention and Occupation in International Humanitarian Law, Ashgate, 2012. “Interim Measures of Relief”, in Christopher S. Gibson and Christopher R. Drahozal (eds.), The Iran-United States Claims Tribunal at 25 : The Cases Everyone Needs to Know for Investor-State & International Arbitration, Oxford University Press, 2007, p. 75. “Protean Jus Ad Bellum”, Berkeley Journal of International Law, Vol. 27 (2009), p. 22, and in Thomas Giegerich et al. (eds.), A Wiser Century ? : Judicial Dispute Settlement, Disarmament and the Laws of War 100 Years after the Second Hague Peace Conference, Veröffentlichungen des Walther-Schücking-Instituts für Internationales Recht an der Universität Kiel, Berlin, Duncker & Humblot, 2009, p. 183. “Does International Law Obligate States to Open Their National Courts to Persons for the Invocation of Treaty Norms that Protect or Benefit Persons ?”, in David Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement : A Comparative Study, Cambridge University Press, 2009, p. 61. “The United States and the International Court of Justice : Coping with Antinomies”, in Cesare Romano (ed.), The Sword and the Scales : The United States and International Courts and Tribunals, Cambridge University Press, 2009, p. 46. “The International Legality of U.S. Military Cross-Border Operations from Afghanistan into Pakistan”, in International Legal Studies, Vol. 85 (2009), p. 109, and in Israeli Yearbook on Human Rights, Vol. 39 (2009), p. 281. “Criminalizing Humanitarian Intervention”, Case Western Reserve Journal of International Law, Vol. 41 (2009), p. 341. “Aggression, Legitimacy and the International Criminal Court”, European Journal of International Law, Vol. 20 (2009), p. 1147.

About the Author

369

“The International Court of Justice”, in Chiara Giorgetti (ed.), The Rules, Practice, and Jurisprudence of International Courts and Tribunals, Martinus Nijhoff Publishers, 2012, p. 11. “Counter-Claims : Article 80 of the Rules”, in Andreas Zimmermann et al. (eds.), The Statute of the International Court of Justice : A Commentary, 2nd ed., Oxford University Press, 2012, p. 1000. “Jus ad Bellum, Values, and the Contemporary Structure of International Law”, Journal of Religious Ethics, Vol. 41 (2013), p. 20. “The Expulsion of Aliens and Other Topics : The SixtyFourth Session of the International Law Commission”, American Journal of International Law, Vol. 107 (2013), p. 164. “Codification, Progressive Development, or Scholarly Analysis ? The Art of Packaging the ILC’s Work Product”, in Maurizio Ragazzi (ed.), Responsibility of International Organizations : Essays in Memory of Sir Ian Brownlie, Martinus Nijhoff Publishers, 2013, p. 29. “The Relevance of Subsequent Agreement and Subsequent Practice for the Interpretation of Treaties”, in Georg Nolte (ed.), Treaties and Subsequent Practice, Oxford University Press, 2013, p. 82. “What a Difference a Year Makes : The International Court of Justice’s 2012 Jurisprudence”, Journal of International Dispute Settlement, Vol. 4 (2013), p. 539. “International Judicial Bodies for Resolving Disputes between States”, in Cesare Romano et al. (eds.), The Oxford Handbook of International Adjudication, Oxford University Press, 2014, p. 181. “Deconstructing Fragmentation : Koskenniemi’s 2006 ILC Project”, Temple International & Comparative Law Journal, Vol. 27 (2013), p. 293. “Immunity Ratione Personae of Foreign Government Officials and Other Topics : The Sixty-Fifth Session of the International Law Commission”, American Journal of International Law, Vol. 108 (2014), p. 41. “The Crime of Aggression at the International Criminal Court”, in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law, Oxford University Press, 2015, p. 533. “Reflections on the ICJ Advisory Opinion on Kosovo : Interpreting Security Council Resolution 1244 (1999)”, in Michael Wood and Marko Milanovic (eds.), The Law and

370

About the Author

Politics of the Kosovo Advisory Opinion, Oxford University Press, 2015, p. 134. “The Expulsion of Aliens (Revisited) and Other Topics : The Sixty-Sixth Session of the International Law Commission”, American Journal of International Law, Vol. 109 (2015), p. 125. “New Mechanisms for Punishing Atrocities in NonInternational Armed Conflicts”, Melbourne Journal of International Law, Vol. 16 (2015), p. 299. “The Identification of Customary International Law and Other Topics : The Sixty-Seventh Session of the International Law Commission”, American Journal of International Law, Vol. 109 (2015), p. 822. “Protection of Persons in the Event of Disasters and Other Topics : The Sixty-Eighth Session of the International Law Commission”, American Journal of International Law, Vol. 110 (2016), p. 718.

PUBLICATIONS OF THE HAGUE ACADEMY OF INTERNATIONAL LAW

COLLECTED COURSES Since 1923 the top names in international law have taught at The Hague Academy of Inter­national Law. All the volumes of the Collected Courses which have been published since 1923 are available, as, since the very first volume, they are reprinted regularly in their original format. Since 2008, certain courses have been the subject of a pocketbook edition. In addition, the total collection now exists in electronic form. All works already published have been put “on line” and can be consulted under one of the proposed subscription methods, which offer a range of tariffs and possibilities.

WORKSHOPS The Academy publishes the discussions from the Workshops which it organizes. The lat­est title of the Workshops already pub­lished is as fol­lows  : Topicality of the 1907 Hague Conference, the Second Peace Conference (2007).

CENTRE FOR STUDIES AND RESEARCH The scientific works of the Centre for Studies and Research in International Law and International Relations of The Hague Academy of International Law, the subjects of which are chosen by the Curatorium of the Academy, have been published, since the Centre’s 1985 session, in a publication in which the Directors of Studies reported on the state of research of the Centre under their direction. This series has been discontinued and the title of the latest booklet published is as follows : Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts. Nevertheless, when the work of the Centre has been of particular interest and originality, the reports of the Directors of Studies together with the articles by the researchers form the subject of a collection published in the series The Law Books of the Academy.

Requests for information, catalogues and orders for publications must be addressed to

MARTINUS NIJHOFF PUBLISHERS P.O. Box 9000, 2300 PA Leiden    The Netherlands

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POCKETBOOKS OF THE ACADEMY (By chronological order of publication)

Gaillard, E. : Aspects philosophiques du droit de l’arbitrage international, 2008, 252 pages.  (ISBN 978-90-04-17148-0) Schrijver, N. : The Evolution of Sustainable Development in International Law : Inception, Meaning and Status, 2008, 276 pages. (ISBN 978-90-04-17407-8) Moura Vicente, D. : La propriété intellectuelle en droit international privé, 2009, 516 pages.  (ISBN 978-90-04-17907-3) Decaux, E. : Les formes contemporaines de l’esclavage, 2009, 272 pages. (ISBN 978-90-04-17908-0) McLachlan, C. : Lis Pendens in International Litigation, 2009, 492 pages. (ISBN 978-90-04-17909-7) Carbone, S. M. : Conflits de lois en droit maritime, 2010, (ISBN 978-90-04-18688-0) 312 pages. Boele-Woelki, K. : Unifying and Harmonizing Substantive Law and the Role of Conflict of Laws, 2010, 288 pages.  (ISBN 978-90-04-18683-5) Onuma, Y. : A Transcivilizational Perspective in International Law, 2010, 492 pages. (ISBN 978-90-04-18689-7) Bucher, A. : La dimension sociale du droit international privé. Cours général, 2011, 552 pages.  (ISBN 978-90-04-20917-6) Thürer, D. : International Humanitarian Law : Theory, Practice, Context, 2011, 504 pages.  (ISBN 978-90-04-17910-3) Alvarez, J. E. : The Public International Law Regime Governing International Investment, 2011, 504 pages.  (ISBN 978-90-04-18682-8) Wang, G. : Radiating Impact of WTO on Its Members’ Legal System : The Chinese Perspective, 2011, 384 pages.  (ISBN 978-90-04-21854-3)

Bogdan, M. : Private International Law as Component of the Law of the Forum, 2012, 360 pages.  (ISBN 978-90-04-22634-0) Davey, W. J. : Non-discrimination in the World Trade Organization : The Rules and Exceptions, 2012, 360 pages.  (ISBN 978-90-04-23314-0) Xue Hanqin : Chinese Contemporary Perspectives on International Law — History, Culture and International Law, 2012, 288 pages.  (ISBN 978-90-04-23613-4) Reisman, W. M. : The Quest for World Order and Human Dignity in the Twenty-first Century : Constitutive Process and Individual Commitment. General Course on Public International Law, 2012, 504 pages.  (ISBN 978-90-04-23615-8) Dugard, J. : The Secession of States and Their Recognition in the Wake of Kosovo, 2013, 312 pages. (ISBN 978-90-04-25748-1) Gannagé, L. : Les méthodes du droit international privé à l’épreuve des conflits de cultures, 2013, 372 pages. (ISBN 978-90-04-25750-4) Kohler, Ch. : L’autonomie de la volonté en droit international privé : un principe universel entre libéralisme et étatisme, 2013, 288 pages. (ISBN 978-90-04-25752-8) Kreindler, R. : Competence-Competence in the Face of Illegality in Contracts and Arbitration Agreements, 2013, 504 pages. (ISBN 978-90-04-25754-2) Crawford, J. : Chance, Order, Change : The Course of International Law. General Course on Public International Law, 2014, 540 pages. (ISBN 978-90-04-26808-1) Brand, R. A. : Transaction Planning Using Rules on Jurisdiction and the Recognition and Enforcement of Judgments, 2014, (ISBN 978-90-04-26810-4) 360 pages. Kolb, R. : L’article 103 de la Charte des Nations Unies, 2014, 416 pages. (ISBN 978-90-04-27836-3)

Benvenisti, E. : The Law of Global Governance, 2014, (ISBN 978-90-04-27911-7) 336 pages. Yusuf, A. A. : Pan-Africanism and International Law, 2014, (ISBN 978-90-04-28504-0) 288 pages. Kono, T. : Efficiency in Private International Law, 2014, (ISBN 978-90-04-28506-4) 216 pages. Cachard, O., Le transport international aérien de passagers, (ISBN 978-90-04-29773-9) 2015, 292 pages. Corten, O. : La rébellion et le droit international, 2015, (ISBN 978-90-04-29775-3) 376 pages. Frigo, M., Circulation des biens culturels, détermination de la loi applicable et méthodes de règlement des litiges, 2016, (ISBN 978-90-04-32129-8) 552 pages. Bermann, G. A., International Arbitration and Private International Law, 2017, 648 pages. (ISBN 978-90-04-34825-7) Bennouna, M., Le droit international entre la lettre et l’esprit, (ISBN 978-90-04-34846-2) 2017, 304 pages.

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