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Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own*

  • Barbara Kwiatkowska and Alfred H.A. Soons
Extract

Article 121 of the 1982 United Nations Convention on the Law of the Sea (LOS Convention) retains the traditional definition of an island as: ‘a naturally formed area of land, surrounded by water, which is above water at high-tide’ (paragraph 1), and attributes to it the same maritime spaces as the mainland. These spaces are at present: the 12 mile territorial sea (TS), the 24 mile contiguous zone (CZ), the continental shelf (CS) and the 200 mile exclusive economic (or fishery) zone (EEZ) (paragraph 2). However, unlike the 1958 Geneva Convention on the Territorial Sea which gives the same legal status to all natural islands, paragraph 3 of Article 121 limits the legal entitlement of islands to maritime spaces by providing that:

‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’.

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1. UN Doc. A/CONF. 62/122, opened for signature 10 December 1982, reprinted in United Nations Convention on the Law of the Sea, UN Sales No. E.83.V.5 (1983), and Nordquist, M. et al. , eds., United Nations Convention on the Law of the Sea 1982 – A Commentary, Vol. I (1985) p. 206. For the status of the Convention, see 15 Law of the Sea Bulletin (May 1990) (UN Office for Ocean Affairs and the Law of the Sea).

2. Para. 1 of Art. 121 repeats the provision of para. 1 of Art. 10 of the 1958 Geneva Convention on Territorial Sea and Contiguous Zone, 516 UNTS 206. Para. 2 of Art. 10 of the latter Convention stated that: ‘The territorial sea of an island is measured in accordance with the provisions of these articles’. In addition, the 1958 Geneva Convention on the Continental Shelf, 499 UNTS 312, stipulated in Art. 1(b) that the term ‘continental shelf’ referred to ‘the sea-bed and subsoil of similar submarine areas adjacent to the coasts of islands’. The commentary on drafts of these provisions by the UN International Law Commission (ILC) leaves no doubt as to their applicability to all islands within the meaning of Art. 10, para. 10 quoted above. See The Law of the Sea, Regime of Islands – Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea, UN Sales No. E.87.V.11, at pp. 4–5 (1988, UN Office for Ocean Affairs and the Law of the Sea) (hereinafter referred to as UN Office Islands Publ.); Jayewardene, H.W., The Regime of Islands in International Law (1990) pp. 1415. See also infra, nn. 17, 18 and 46. For the provisions determining the present breadth of various maritime spaces, see Arts. 3, 33, 57 and 76 of the LOS Convention.

3. Hodgson, R.D. and Smith, R.W., ‘The Informal Single Negotiating Text (Committee II): A Geographical Perspective’, 3 Ocean Development and ILJ (1976) pp. 225, 233.

4. See infra, n. 9.

5. UN Doc A/CONF. 62/WP.10/Rev.1 (1979), UN Office Islands Publ., op. cit. n. 2, at p. 93.

6. For Romania's proposal, see UN Doc. A/CONF. 62/L.126, UN Office Islands Publ., op. cit. n. 2, at pp. 104–109. See also paras. 5.2.2 and 5.2.5 infra. Cf., van Dyke, J.M., ‘The Role of Islands in Delimiting Maritime Zones: The Case of the Aegean Sea’, 8 Ocean Yearbook (1990) pp. 44, 58.

7. UN Office Islands Publ., op. cit. n. 2, at pp. 6–21 (UN Sea-Bed Committee) and pp. 22–81 (Caracas session of UNCLOS III).

8. One could wonder whether Aguilar intended in this way to accept certain concessions on the part of States opposed to the rocks-principle without (potentially) affecting some delimitation concerns of Venezuela, in particular with regard to Aves Island which is not a rock in geological terms (see infra, n. 33). On the other hand, Venezuela remained a strong opponent to the rocks-principle throughout the whole course of UNCLOS III, and ultimately did not sign the LOS Convention. For the Venezuelan position, see UN Office Islands Publ., op. cit. n. 2, at pp. 62, 97 and 103. See also infra, nn. 63, 112, 120–124 and the main accompanying text.

9. States advocating the same legal status for all islands and deleting the rocks-provision were, e.g., Japan, Greece, France, Cyprus, the United Kingdom, Brazil, Zambia, Iran, Portugal and Ecuador, UN Office Islands Publ. at pp. 89–91, 95, 98, 105, 107–108. See also references to the UK's position, supra, n. 6; and to Venezuela's position, supra, n. 8. States advocating different legal status for various categories of islands and retaining or/and further clarifying the rocks-provision were: Algeria, Bangladesh, Cameroon, Iraq, Libya, Madagascar, Morocco, Nicaragua, Somalia, Turkey, Mauritius, Egypt, Malta, Mozambique, Pakistan, Colombia, Singapore, Dominica, Romania, Ireland, the GDR and the USSR, UN Office Islands Publ., op. cit. n. 2, at pp. 88–91, 95–96, 98–99, 103–109. See also references to the Romanian position, supra, n. 6 and infra, n. 54; to the Danish position, infra, n. 16; and to the Irish position, infra, n. 11.

10. See Resolution III to the Final Act of UNCLOS III, UN Doc. A/CONF. 62/121. As the delegate of Fiji stated at the 1980 session, his delegation welcomed the fact that: ‘The integrity of oceanic islands had not been subordinated to the problems of islands having a special situation that might have some bearing on the question of delimitation of boundaries’. UN Office Islands Publ., op. cit. n. 2, p. 98. For the legislative history of Resolution III, see Nordquist, et al., eds., Vol. V (1989), op. cit. n. 1, pp. 478–482.

11. Note, however, e.g., the 1979 informal suggestion by Ireland to replace in para. 2 of Art. 121 the words ‘except as provided for in paragraph 3’ by ‘without prejudice to the provisions of articles 15, 74 and 83 and except as provided for in paragraph 3’. UN Office Islands Publ., op. cit. n. 2, pp. 93–94. Also Turkey (ibid. p. 99) maintained that a useful contribution would be made to codification by establishing the necessary link between Art. 121 and Arts. 15, 74 and 83. See also the reference to the 1978 Proposal of 10 States in para. 5.2.5 infra, and observations contained in paras. 2 and 8 infra.

12. Nelson, L.D.M., ‘The Emerging New Law of the Sea, 42 Modern LR (1979) pp. 42, 58.

13. The 1977 Decision (para. 197) of the Court of Arbitration in the United Kingdom/France Delimitation of the Continental Shelf case, reprinted in 18 ILM (1979) p. 397. Cf., Bowett, D.W., ‘Islands, Rocks, Reefs and Low-Tide Elevations in Maritime Boundary Delimitations’, in Charney, J.I. and Alexander, L.M., eds., International Maritime Boundaries (forthcoming); Evans, M.D., Relevant Circumstances and Maritime Delimitation (1989) pp. 133151; Jayewardene, op. cit. n. 2, pp. 259–489; Kwiatkowska, B., ‘Equitable Maritime Boundary Delimitation — A Legal Perspective1, 3 International Journal of Estuarine and Coastal Law (1988) pp. 287304, especially p. 302; Oda, S., ‘Dissenting Opinion in the Tunisia/Libya case’, ICJ Rep. (1982), para. 150 at p. 252 and paras. 170–173 at pp. 263266; Weil, P., The Law of Maritime Delimitation — Reflections (1989) pp. 7475, 229235. See also nn. 46, 50 and 51 infra, and the main accompanying text.

14. Note, however, that para. 2 of Art. 121 expressly states that an island can generate maritime spaces in the same way as other land territory, ‘except as provided for in paragraph 3’. It follows that an island qualified as a rock is entitled to the TS, because para. 3 establishes its exception only expressly with regard to the EEZ and the CS of rocks. See also para. 2.3 infra.

15. UN Sea-Bed Committee Doc. A/AC. 138/SR. 57, at 167.

16. Statement of Denmark, UN Office Islands Publ., op. cit. n. 2, p. 107. See also another Danish statement, ibid, at p. 55; as well as interventions of, e.g., Tunisia, ibid, at p. 25 and Singapore, ibid, at p. 61; and infra, n. 68.

17. See Art. 1(a) of the 1958 Continental Shelf Convention. Note, however, that when the ILC adopted a definition of the CS expressly articulating the legal entitlement of islands to a shelf (see supra, n. 2), the French delegate, Scelle observed that:

‘the Commission's decision incalculably diminished the freedom of the high seas, for the smallest rock, the merest patch of sand, might be the culminating point of a huge submarine plateau’ UN Doc. A/CN. 4/Ser. A/1953. Cf., Van Dyke, J.M. and Brooks, R.A., ‘Uninhabited Islands: Their Impact on the Ownership of the Oceans' Resources’, 12 Ocean Development ILJ (1983) pp. 265, 275.

18. See Art. 24, para. 2 of the 1958 Territorial Sea Convention.

19. See Prescott, J.R.V., The Maritime Political Boundaries of the World (1985) pp. 1718.

20. Ibid, at p. 74. See also Hodgson and Smith, loc. cit. n. 3, pp. 231–232, and para. 3.2 infra.

21. Prescott, J.R.V., ‘Straight Baselines: Theory and Practice’, in Brown, E.D. and Churchill, R.R., eds., The UN Convention on the Law of the Sea: Impact and Implementation, Proceedings of Law of the Sea Institute 19th Annual Conference 1985 (1987) pp. 288, 314. In addition to Minerva Reefs, the author refers to examples of rocks found along the edge of the Great Barrier Reef of Australia and to the reefs surrounding Mauritius. In his other work quoted, op. cit. n. 19, at p. 176, Prescott discusses as examples of uninhabited islands with controversial effect for determination of baselines a new island formed off the Ganges River delta which is claimed by India (under the name of New Moore or Purbasha) and Bangladesh (under the name of South Talpatty), and Narcondam Island (of volcanic origin) which is possessed by India in the Andaman Sea but was also claimed by Burma. Under their 1986 delimitation treaty, Burma abandoned its claim to Narcondam Island and in return India did not insist on the maximum possible claims from either Narcondam or Barren Island which lies west of Narcondam Island. See Report No. 6–3 by J.R.V. Prescott, in Charney and Alexander, eds., op. cit. n. 13.

22. The necessity of amending Art. 13 by such provision, if Art. 121, para. 3 was to be retained, has been advocated by Brown, E.D., ‘Rockall and the Limits of National Jurisdiction of the UK, Part 1’, 2 Marine Policy (1978) pp. 181, 207. See also references in paras. 5.2.2 and 5.2.4 infra, to proposals of African and other States to explicitly provide in the Convention that the rocks situated in the vicinity of their mainlands should (like other islands) be used for the purpose of determining baselines of various maritime spaces.

23. For examples of such islands, see supra, n. 21 and infra, para. 2.4. Note that some States, like Burma, Canada, Japan or New Zealand, explicitly recognize in their legislation concerning the 200 mile zones that ‘all’ islands (including rocks) can be used as the basepoints for baselines from which maritime spaces of those States are measured. Note also that baseline points on rocks situated close to the coasts are used in maritime delimitation agreements between, e.g., Denmark—Norway (1965), Norway–Sweden (1968), Canada–Denmark (1973), Iran–Oman (1974), India–Indonesia (1974 and 1977), Kenya–Tanzania (1976), Mexico–USA (1976), Cuba–USA (1977), Colombia–Dominican Republic (1978), Denmark (Faeroe Islands)–Norway (1979), Burma–Thailand (1980), Finland–USSR (1980), Australia–France (1982), and France–Italy (1986). For a detailed examination, see ‘Islands’ section in individual boundary reports contained in Charney and Alexander, eds., op. cit. n. 13. Cf., also infra, n. 100. For the text of national legislation and agreements, see The Law of the Sea Publications of the UN Office for Ocean Affairs and the Law of the Sea: National Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive Fishery Zone, UN Sales No. E.85.V.10 (1986); Current Developments in State Practice, No. I, UN Sales No. E.87.V.3. (1987), and No. II, UN Sales No. E.89.V.7 (1989); Baselines: National Legislation with Illustrative Maps, UN Sales No. E.89.V.10 (1989); and Maritime Boundary Agreements (1970–1984), UN Sales No. E.87.V.12 (1987). See also Smith, R.W., Exclusive Economic Zone Claims, An Analysis and Primary Documents (1986); and Limits in the Seas, No. 36 – National Claims to Maritime Jurisdiction (US Department of State, 6th Revision 1990).

24. See supra, n. 14.

25. Cf., Hodgson, R.D., ‘Islands: Normal and Special Circumstances’, in Gamble, J.K. and Pontecorro, G., eds., Law of the Sea: The Emerging Regime of the Oceans, Proceedings of Law of the Sea Institute 8th Annual Conference 1973 (1974) pp. 137, 147.

26. See Oda, S. and Owada, H., ‘Annual Review of Japanese Practice in International Law XV (1976–77)’, 28 JAIL (1985) pp. 59, 132134.

27. The 1977 Decision, supra, n. 13, para. 128.

28. Ibid. para. 139. See also para. 7.2.2 infra.

29. Cf., Peters, P., The Problem of Delimitation of EEZ and Other Maritime Spaces in the Light of European State Practice (1985), a paper submitted to the Working Group on the EEZ of the Dutch Branch of the ILA.

30. See Art. 31 of the 1969 Vienna Convention on the Law of Treaties, 18 UNTS 232. Cf., also remarks on the main objective of Art. 121, para. 3 made in para. 1.4 supra.

31. Prescott, op. cit. n. 19, at p. 73. Cays (Keys) are low islands or reefs built of sand and coral rubble by wave action on reefs which are awash, and they may be destroyed by waves in severe storms. See also Morgan, J., ‘Commentary’, in Brown, and Churchill, , eds., op. cit. n. 21, pp. 351354; and comments made by Prescott and Morgan in the discussion, ibid, at p. 57.

32. See infra, n. 56.

33. Note that, while analyzing the full effect given to Aves Island in delimitation between Venezuela, the United States and the Netherlands in the Caribbean, Prescott, op. cit. n. 19, at p. 352, emphasizes that there can be no question that Aves Island is an island and not a rock and, therefore, it can be used as a basepoint in claiming the entire suite of maritime zones for Venezuela. The difference in Venezuelan EEZ with and without Aves Island amounts to one-third of the total. See also supra, n. 8 and infra, nn. 63, 112, 120–124 and the main accompanying text.

34. Cf., Alexander, L.M., ‘The Identification of Technical Issues of Maritime Boundary Delimitation within the Law of the Sea Convention Context’, in Brown, and Churchill, , eds., op. cit. n. 21, pp. 272, 273; Dipla, H., Le régime juridique des îies dans le droit international de la mer (1984) pp. 3842; Van Dyke and Brooks, loc. cit. n. 17, p. 283; Soons, A.H.A., ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’, 37 NILR (1990) pp. 207, 208; Symmons, C.R., The Maritime Zones of Islands in International Law (1979) p. 41; Symonides, J., ‘The Legal Status of Islands in the New Law of the Sea’, 65 Rev. de droit int. (1987) pp. 161, 165. Note that although, according to Symmons, the geological phenomenon of a ‘rock’ has been singled out for special treatment, since this term usually implies miniscule protrusion of land, other intrinsically small protrusions such as reefs and banks should fall into the same category. Dipla indicates that the term ‘rock’ would seem to imply a particular geological (rocky) structure, but she emphasizes the lack of a clear definition of this term in the Convention.

35. UN Office Islands Publ., op. cit. n. 2, p. 55.

36. Ibid. p. 97. See also supra, n. 33.

37. See supra, n. 31.

38. See Art. 32 of the Vienna Convention, supra, n. 30.

39. Quoted after Brown, loc. cit. n. 22, at p. 206.

40. League of Nations Conference for the Codification of International Law, 2 Cases of Discussion, pp. 52–53, League of Nations Doc. No. C.74.M.39.1929.V.

41. Note, however, that while claiming the continental shelf around Rockall, the United Kingdom also emphasized the fact that this area was a natural prolongation of the land mass of the UK. For details, see Brown, E.D., ‘Rockall and the Limits of National Jurisdiction of the UK, Part 2’, 2 Marine Policy (1978) pp. 275, 290 et seq.; and Symmons, op. cit. n. 34, pp. 134–135.

42. League of Nations, 3 Acts of the Conference for the Codification of International Law, p. 219, League of Nations Doc No. C.230.M.117.1930.V.

43. Gidel, B., Le droit international public de la mer. Vol. III (1934) p. 684. See, however, the criticism of Gidel's view by Johnson, D.H.N., ‘Artificial Islands’, 4 ILQ (1951) p. 203 et seq.

44. ILC Yearbook 1954 Vol. I p. 92.

45. Ibid. p. 93.

46. See supra, nn. 2, 17 and 18. For the opposite view, see Goldie, L.F.E., ‘The International Court of Justice's “Natural Prolongation” and the Continental Shelf Problem of Islands’, 4 NYIL (1973) p. 237 et seq. Note, however, that Goldie's view was criticized by Brown, loc. cit. n. 22, pp. 204–205, as based on State practice of an earlier period and not supported by more recent practice. Cf., also O'Connell, D.P., The International Law of the Sea, Vol. I, Shearer, I.A., ed. (1982) p. 183 et seq.

47. Hodgson and Smith, loc. cit. n. 3, p. 230, and Hodgson, loc. cit. n. 25, pp. 150–151.

48. While referring to this classification, Bowett, D.W., The Legal Regime of Islands in International Law (1979) p. 44 concludes that, despite its reasonableness, it could not obtain wide recognition in international law due to a variety of geographical circumstances which require a large measure of flexibility.

49. Ely, N., ‘Seabed Boundaries Between Coastal States: The Effect to be Given Islets as “Special Circumstances”’, 6 Int. Lawyer (1972) pp. 219, 231233.

50. Ibid. For a similar view, see Goldie, loc. cit. n. 46.

51. See e.g., Blecher, M.D., ‘Equitable Delimitation of Continental Shelf’, 73 AJIL (1979) pp. 60, 80; and Bowett, op. cit. n. 48, pp. 279–280.

52. For an overall examination, see Symmons, op. cit. n. 34, pp. 47–53, 94–100 and 120–123.

53. UN Sea-Bed Committee Doc. A/AC. 138/SC.II/L.28, UN Office Islands Publ., op. cit. n. 2, p. 15.

54. UN Doc. A/CONF. 62/C.2/L.53, UN Office Islands Publ., op. cit. n. 2, p. 40, and the Romanian statement, ibid, at p. 41. See also other Romanian drafts, UN Sea-Bed Committee Doc. A/AC.138/SC.II/L.53, ibid. p. 19, and UN Doc. A/CONF. 62/C.2/L.18, ibid. p. 30, as well as the Romanian statement, ibid. p. 24.

55. UN Doc. A/CONF. 62/C.2/L.55, ibid, at p. 43, and the statement made by TUrkey at the Caracas session, ibid. p. 44. Note the first attempt of Turkish scholars to address the complexity of issues pertaining to the Aegean delimitation in Tashan, S., ed., The Aegean Issues: Problems and Prospects (1989).

56. UN Doc. A/CONF. 62/C.2/L.62/Rev.l submitted by Algeria, Dahomey, Guinea, Ivory Coast, Liberia, Madagascar, Mali, Mauritania, Morocco, Sierra Leone, Sudan, Tunisia, Upper Volta and Zambia, ibid. p. 48. See also the 1973 Addis Ababa Declaration of the OAU, UN Sea-Bed Committee Doc. A/AC.138/89 and Rev.1, ibid. p. 13, and the 1973 Draft of 14 African States, Doc A/AC. 138/SC.II/L.40 and Corr.1–3, ibid. p. 18.

57. Ibid. p. 88. The ten States were: Algeria, Bangladesh, Cameroon, Iraq, Libya, Madagascar, Morocco, Nicaragua, Somalia and Turkey.

58. See supra, n. 6.

59. Comment made by L.D.M. Nelson in the discussions, in Brown and Churchill, eds., op. cit. n. 21, at p. 358. In another work the author illustrated this view by the concrete example of Aves Island pointing out that: ‘The issue … is not whether Aves Island was able to sustain economic life of its own in the past, but whether in fact it is now capable of doing so’ Nelson, L.D.M., ‘The Delimitation of Maritime Boundaries in the Caribbean’, in Johnston, D.M. and Saunders, P.M., eds., Ocean Boundary Making: Regional Issues and Developments (1988) pp. 142, 175. Note that in its declaration upon signature of the LOS Convention, Romania stated that ‘…the uninhabited islands and without economic life can in no way affect the delimitation of the maritime spaces belonging to the main land coasts of the coastal States’ Law of the Sea Bulletin (July, 1985) No. 5, p. 50.

60. See Art. 33 of the Vienna Convention, supra, n. 30; and Nelson, L.D.M., ‘The Drafting Committee of the Third United Nations Conference on the Law of the Sea: The Implications of Multilingual Texts’, 57 BYIL (1986) pp. 169199.

61. Cf., Morgan, loc. cit. n. 31. For details see Van Dyke, J.M., Morgan, J. and Gurish, J., ‘The Exclusive Economic Zone of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate An EEZ?’, 25 San Diego LR (1988) pp. 425, 468472. The authors also express the view that the historic use of the surrounding waters provides an indication on the reliance of the area for the sustainance of economic life. Ibid, at p. 438.

62. Cf., Brown, loc. cit. n. 41, p. 289, and Symmons, op. cit. n. 34, p. 51. The same relates to Okinotorishima further referred to at infra, n. 66.

63. See the comment made by K. Nweihed, in Brown and Churchill, eds., op. cit. n. 21, p. 355, and also by this author ‘EZ (Uneasy) Delimitation in the Semi-Enclosed Caribbean Sea: Recent Agreements Between Venezuela and Her Neighbours’, 8 Ocean Development and ILJ (1980) pp. 2021. Cf., Nelson, loc. cit. n. 59, pp. 171–176. Note that the permanent oceanographic research base is fully dependent upon supplies from the mainland and is not on the island itself but is connected to it by a steel causeway. Note also the controversial nature of the question whether Aves Island decreases in size. See Freestone, D., ‘Maritime Boundary Delimitation in the Eastern Caribbean’, in Grundy-Warr, C., ed., International Boundaries and Boundary Conflict Resolution (1990) pp. 195, 199; Maloney, N.J. et al. , ‘Geology of Aves Island – Venezuela’ (Transl. Fifth Caribbean Geological Conference), Geological Bulletin (May 1971) No. 5, pp. 97, 9899 (obtained through the kindness of K. Nweihed); Isla de Aves, Bastion Venezolano en el Mar Caribe (1988). See also supra, n. 8 and infra, nn. 112, 120–124 and the main accompanying text.

64. Hodgson and Smith, loc. cit. n. 3, at p. 231.

65. UN Office Islands Publ., op. cit. n. 2, p. 97. Cf., Kittichaisaree, K., The Law of the Sea and Maritime Boundary Delimitation in South-East Asia (1987) p. 138. Note that in its declaration upon signature of the LOS Convention, Iran stated that: ‘Islets situated in enclosed and semi-enclosed seas which potentially can sustain human habitation or economic life of their own, but due to climatic conditions, resource restriction or other limitations, have not yet been put to development, fall within the provisions of paragraph 2 of article 121 … and have, therefore, full effect in boundary delimitation of various maritime zones of the interested Coastal States’ Law of the Sea Bulletin (July 1985) No. 5, p. 50. See also Evans, op. cit. n. 13, p. 142, posing a question whether the criterion of economic importance includes the potential economic importance that a rock might have if an EEZ or a CS was generated by it?

66. Cf., Symmons, op. cit. n. 34, p. 115. Note, e.g., a three year (240 million US $) project undertaken in 1988 by Japan to strengthen the two tiny rocks of Okinotorishima (Offshore Bird Island) in the Pacific by constructing 9,000 steel blocks in concentric circles around the islets. Okinotorishima is situated in an area rich in tuna, the ocean floor of which presumably contains substantial deposits of manganese and cobalt. See Time (26 September 1988) p. 17; Silverstein, A.L., ‘Okinotorishima: Artificial Preservation of a Speck of Sovereignty’, 16 Brooklyn JIL (1990) pp. 409, 409410.

67. See supra, n. 16.

68. UN Office Islands Publ., op. cit. n. 2, p. 99. Cf., also statements by Romania, supra, n. 54, and the declaration made by Romania with regard to Part VIII upon signature of the LOS Convention, supra, n. 59.

69. The 1981 Report and Recommendations of the Conciliation Commission on the Continental Shelf Area Between Iceland and Jan Mayen, reprinted in 20 ILM (1981) pp. 797, 803–804. Cf., Churchill, R.R., ‘Maritime Delimitation in the Jan Mayen Area’, 9 Marine Policy (1985) pp. 16, 1920; Gounaris, E., ‘The Delimitation of the Continental Shelf of Jan Mayen’, 21 Archiv des Volkerrechts (1983) pp. 492, 494495; Ostreng, W., ‘Delimitation Arrangements in Arctic Seas: Cases of Precedence or Securing of Strategic/Economic Interests?’, 10 Marine Policy (1986) pp. 132, 137140; Richardson, E.L., ‘Jan Mayen in Perspective’, 82 AJIL (1988) pp. 443458; The Law of the Sea Institute's Los Lieder, No. 6 of May 1988, at p. 5. Note that in August 1988, Denmark instituted proceedings against Norway in the Case Concerning Maritime Delimitation in the Area Between Greenland and Jan Mayen (ICJ Rep. (1988) pp. 6667).

70. Note that in connection with a disastrous explosion on an oil platform off Scotland on 6 July 1988 when only 65 out of 229 people survived, the necessity of remote manning of drilling platforms in future was emphasized. In 1989 it was estimated that the North Sea had the highest accident rate of any offshore area, and accordingly, staff cuts and possible remote control of drilling platforms was further considered. See the International Herald Tribune (20 November 1989) p. 13.

71. See the references to the 1923 Resolution and to the view of Gidel in para. 4 supra.

72. UN Office Islands Publ., op. cit. n. 2, p. 66. See also the statement of, e.g., Micronesia, ibid, at p. 29, Western Samoa, ibid. p. 53, and Fiji, ibid. p. 58. Cf., Dipla, op. cit. n. 34, p. 84. Note the remarkable efforts of the South Pacific island States to promote their economic development through the South Pacific Forum Fisheries Agency.

73. See supra, n. 65. Note that, e.g., the Diaoyutai Islands disputed between China and Japan may be regarded as possessing capacity to sustain human habitation, although they do not meet the test of ‘permanent settlement’. See Wei-chin, Lee, ‘Troubles under the Water: Sino-Japanese Conflict of Sovereignty on the Continental Shelf in the East China Sea’, 18 Ocean Development and ILJ (1987) pp. 585, 598 and fn. 67.

74. See the statement of, e.g., Fiji, supra, n. 72, and Japan, ibid, at p. 90. Note that the case law appears not to follow any clear rule pertaining to the element of an island's habitation. E.g., in the Tunisia/Libya case the island of Jerba had no influence on the delimitation line despite its size and population (ICJ Rep. (1982) para. 120 at p. 85). In the Gulf of Maine case, ‘tiny islands, uninhabited rocks or low-tide elevations’ were discounted, while Seal Island was granted half-effect on account of its geographical position and habitation (ICJ Rep. (1984) para. 201 at pp. 329–330, and para. 222 at pp. 336–337). In the Libya/Malta case no effect was given to the uninhabited islet of Fifla (ICJ Rep. (1985) para. 64 at p. 48, and para. 72 at p. 52). And in the Guinea/Guinea-Bissau case, the tiny uninhabited Alcatraz Island played a more important role in defining the boundary line than the larger and inhabited Bijagos Islands (paras. 106 and 107 of the 1985 award, reprinted in 25 ILM (1986) pp. 252, 296).

75. Symmons, op. cit. n. 34, p. 48.

76. See e.g., Brown, loc. cit. n. 22; Hodgson and Smith, loc. cit. n. 3; Prescott, op. cit. n. 19, p. 73. See also the remarks of Forbes, V.L., ‘Singapore's Maritime Jurisdiction’, 2 The Indian Ocean Review (1989) No. 2, pp. 13, 14, and map 2 at p. 17 on the possibility of regarding the disputed Horsburg Light (an island with a lighthouse structure) situated in the eastern entrance to the Strait of Singapore to be capable of sustaining an economic life of its own. Had Singaporian jurisdiction over Horsburg Light been recognized, Singapore would gain an area of about 820 square kilometers. This area would, however, overlap with the 1979 CS boundary between Indonesia and Malaysia. Note also that the 1983 France (French Polynesia)–UK (Pitcairn) delimitation agreement used as basepoints the low-water line of two islets on the edge of uninhabited Oeno Island lying 75 miles from Pitcairn and regularly visited by Pitcairn islanders for fishing and gathering coconuts.

77. See supra, n. 69.

78. See the references at supra, n. 72.

79. See supra, n. 68. Apart from Jan Mayen, note the full dependency on external support of, e.g., Aves Island (supra, n. 63) and Diaoyutai Islands (supra, n. 73).

80. See Brown, loc. cit. n. 22, p. 206.

81. Nelson, loc. cit. n. 59, pp. 174–175, quoting Bowett, op. cit. n. 48, p. 34. See also Attard, D.J., The Exclusive Economic Zone in International Law (1987) pp. 259260.

82. Van Dyke and Brooks, loc. cit. n. 17, pp. 286–288. Accordingly, the authors conclude that Clipperton should have the status of a rock under Art. 121, para. 3. This opinion is upheld by Van Dyke, et al., loc. cit. n. 61, p. 437.

83. See the references at op. cit. n. 81, and the comment by Nelson, loc. cit. n. 59. Note the ‘man-made’ extension of Venezuelan Aves Island through attaching to it a permanent research base (supra, n. 63) or of Japanese Okinotorishima (supra, n. 66).

84. Brownlie, I., Principles of Public International Law, 3rd edn. (1979) pp. 155156 even doubts whether accretion and avulsion are legal modes of acquisition of territory.

85. Cf., Akehurst, M., A Modern Introduction to International Law, 5th edn. (1984) p. 145; Brownlie, op. cit. n. 84; Green, N.A.M., International Law of Peace (1973) p. 196; Hingorani, R.C., Modern International Law, 2nd edn. (1984) p. 55; Jennings, R.Y., The Acquisition of Territory in International Law (1963) pp. 67 and 19; and Sørensen, M., Manual of Public International Law (1968) pp. 321322.

86. See Bierzanek, R., Jakubowski, J. and Symonides, J., International Law and International Relations (in Polish) (1980) p. 218; and Góralczyk, W., Introduction to International Public Law (in Polish) (1983) p. 181.

87. Ibid. See also infra, n. 94 and the main accompanying text.

88. See Góralczyk, op. cit. n. 86. Cf., Oppenheim, L., International Law, Vol. I, 7th edn. (1952) p. 516 pointing out that it is an undoubted rule of international law that a State can already construct artificial formations, such as embankments, breakwaters, dykes and the like, ‘as far into the sea beyond low-water mark as it likes, and thereby gain considerably in land and also in territory since the maritime belt … is now to be measured from the extended shore’. Cf., also Jessup, P.C., The Law of Territorial Waters and Maritime Jurisdiction (1927) pp. 6970.

89. See Arts. 8 and 9 of the 1958 Territorial Sea Convention and Arts. 11 and 12 of the LOS Convention. Note that at the early stage of UNCLOS III, one of the present authors advocated deleting the exceptions related to ports and roadsteads, and likewise the institution of the contiguous zone, from the future Convention, on the ground that the rationale for them has disappeared with the presently broader TS. Soons, A.H.A., Artificial Islands and Installations in International Law, Occasional Paper No. 22 of the Law of the Sea Institute (1974) pp. 2021.

90. See supra, n. 2.

91. Papadakis, N., The International Legal Regime of Artificial Islands (1977) p. 93; Soons, A.H.A., ‘Volkenrechtelijke vragen rond het project voor de bouw van een afvaleiland in de Noord-zee’ (Public international law questions concerning the construction of a refuse island in the North Sea), 36 NJB (1972) p. 1009 et seq., and Soons, op. cit. n. 89, pp. 17–18; Symmons, op. cit. n. 34, p. 36.

92. See the main text accompanying nn. 27–29 supra.

93. See supra, n. 44, at p. 91.

94. Cf., O'Connell, op. cit. n. 46, p. 197; Charles, H., ‘Les îles artificielles’, 71 RGDIP (1967) p. 352; Symmons, op. cit. n. 34, pp. 31 and 33.

95. See Gidel, op. cit. n. 43, pp. 678 and 696. According to the ILC, the definition of an island did not cover low-tide elevations even if an installation (e.g., a lighthouse) was built on such elevations and was itself permanently above water. ILC Yearbook 1956 Vol. II p. 270.

96. See Symmons, op. cit. n. 34, pp. 33–36, and Papadakis, op. cit. n. 91, p. 90.

97. McDougal, M.S. and Burke, W.T., The Public Order of the Oceans (1962) pp. 387388; Papadakis, op. cit. n. 91. Note that Papadakis proposes to apply this criterion to such cases as erecting earthworks on a natural island, in the process of gradually disappearing beneath the waves, so as to keep the island above water; or to islands formed as a result of an artificially induced explosion causing a volcanic eruption on the sea-bed.

98. Note that such a possibility was envisaged by Niaussat, P., ‘Clipperton, source de richesse ou héritage inutile?’, Defense Nationale (1977) pp. 107, 118. See also Silverstein, loc. cit. n. 66, pp. 429 and 430, who maintains that the artificial structure constructed by Japan (at a distance of 25 meters) to strengthen Okinotorishima takes on its characteristics of natural island, ‘inhering all of its territorial entitlements’. See further the remarks of Soons, loc. cit. n. 34, pp. 222–223, on the permissibility of artificial conservation of the coastline, under existing international law. This in Soons ‘opinion includes ‘artificial conservation of an islet exclusively for the purpose of preventing it from degenerating, as a result of sea level rise, to the status of “rock” as provided in Article 121, paragraph 3 …’

99. See supra, n. 69.

100. Nelson, loc. cit. n. 59, pp. 174–175. For the text of the Mexican legislation, see the references at supra, n. 23. See also Bowett, loc. cit. n. 13, arguing that to the extent that rocks do not generally, as a matter of State practice, generate any entitlement to areas of CS or EEZ, Art. 121, para. 3 appears to be largely declaratory of customary law. In his opinion, whilst rocks within the meaning of that provision may generate a TS, for purposes of CS or EEZ delimitation they function largely as basepoints in measuring the maritime area attached to a larger territorial unit, as do reefs and low-tide elevations.

101. Brown, loc. cit. n. 22, pp. 207–208.

102. Symmons, op. cit. n. 34, p. 206.

103. Churchill, R.R. and Lowe, A.V., The Law of the Sea (1985) pp. 128129. This opinion is also shared by Attard, op. cit. n. 81, and – as an alternative approach – by Fleischer, C.A., ‘The New Regime of Maritime Fisheries’, 209 RCADI (1988-11) pp. 95, 148.

104. Churchill, loc. cit. n. 69.

105. Dipla, op. cit. n. 34, at pp. 48–49 and 232.

106. Note that in the 1984 Gulf of Maine Area case, the Chamber stated that the fact that the LOS Convention has not yet come into force and that a number of States did not appear inclined to ratify it, ‘in no way detracts from the consensus reached on large portions of the instrument and, above all, cannot invalidate the observation that certain provisions of the Convention, concerning the continental shelf and the exclusive economic zone … were adopted without any objections’. ICJ Rep. (1984) para. 94 at p. 294. Cf., D'Amato, A., ‘The Law-Generating Mechanisms of the Law of the Sea Conferences and Convention’, in van Dyke, J.M., ed., Consensus and Confrontation: The United States and the Law of the Sea Convention (1985) pp. 125, 132133; Kwiatkowska, B., The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989) pp. 2737, especially p. 34.

107. See ICJ Rep. (1969) para. 74 at p. 43; and ICJ Rep. (1986) paras. 184–186 at pp. 97–98.

108. Note, however, that Mexico discounted Alijos rocks. See Symmons, op. cit. n. 34, pp. 125–126.

109. The 1974/1489 Order Implementing the 1964 Continental Shelf Act of the UK, and the 1976 200 mile zone Act affirmed by the UK as applicable to Roc kall in 1977. For details, see Brown, loc. cit. n. 41; Richardson, loc. cit. n. 69, p. 457; Symmons, op. cit. n. 34, pp. 101–102, and also by this author ‘The Rockall Dispute Deepens: An Analysis of Recent Danish and Icelandic Actions’, 35 ICLQ (1986) pp. 344373; 76 RGDIP (1972) p. 1168; 79 RGDIP (1975) pp. 503–504; 80 RGDIP (1976) p. 1247; and 89 RGDIP (1985) pp. 762–763. Note that in the negotiations on their 1988 delimitation agreement, the United Kingdom and Ireland agreed to renounce areas which they had previously claimed in their CS legislation, as part of a generally acceptable overall solution. Rockall (and Helen's Reef which lies close to it) played no role in determining the boundary under this agreement. See Report No. 9–5 by D.H. Anderson, in Charney and Alexander, eds., op. cit. n. 13. Note further that the Icelandic Prime Minister referred, in his memorandum of 27 February 1989 to the British Prime Minister, to the possibility of establishing a joint development in the Hatton-Rockall area by the UK, Ireland, Denmark and Iceland.

Cf., also Symmons, op. cit. n. 34, p. 126 (and fn. 463, p. 265 therein) noting the potential question of islands (rocks) amongst the Falkland Island Dependencies, such as the Shag Rocks, which are similar in appearance to Rockall. Note, however, that the 1986 UK Declaration on a 200 mile fishery zone around the Falkland Islands (Law of the Sea Bulletin (April 1987), UN Office for Ocean Affairs and the Law of the Sea) provides merely that the boundaries of that zone and also the continental shelf of the Falklands are those prescribed by the rules of international law concerning maritime boundary delimitation.

110. Cf., Van Dyke and Brooks, loc. cit. n. 17, pp. 267–268. For the text of the US legislation, see the references at supra, n. 23.

111. Decree Nos. 78–143, 144, 146 and 147 relating to French Polynesia, French Southern and Antarctic Territories, the islands of the Mozambique Channel, and Clipperton Island, respectively. For the text, see ibid. Cf., Niaussat, loc. cit. n. 98.

112. Note that the 1978 EEZ Act of Venezuela is the only one explicitly referring in its title to islands; it reads Act Establishing an Exclusive Economic Zone Along the Coasts of the Mainland and Islands of the Republic of Venezuela (emphasis added). For the text, see the references at supra, n. 23. Cf., the references at supra, n. 63; and 10 NYIL (1979) pp. 367–373.

113. See supra, n. 69.

114. For the text of the national legislation, see the references at supra, n. 23. Note that the 1976 Law of Sri Lanka explicitly refers to ‘an island or rock, or a group of islands and rocks, or a group of islands or a group of rocks, constituting part of the territory of Sri Lanka’ (Art. 2, para. 2 and Art. 6, para. 1(b)). See also the reference to the Venezuelan legislation at supra, n. 112.

115. See the reference to the legislation of Burma, Canada, Japan and New Zealand in n. 23 supra. For a detailed review of recent State practice, see Van Dyke, et al., loc. cit. n. 61, p. 449 et seq.

116. Cf., Brownlie, supra, n. 84, pp. 148 and 151–152.

117. See supra, n. 103.

118. Cf., Symmons, op. cit. n. 34, pp. 117–118.

119. For details see Van Dyke, et al., loc. cit. n. 61, pp. 431–432.

120. Cf., Nweihed, loc. cit. n. 63, p. 14.

121. See Nelson, loc. cit. n. 59. The author indicates (ibid. fn. 167) that equidistance boundaries with Aves Island would result in a loss of 3,150 square miles to Dominica, 2,300 square miles to Montserrat and 1,550 square miles to Nevis.

122. See ibid. Note that in September 1987, OECS held a workshop which discussed several issues relating to boundary-making in the Caribbean and which noted that among the important factors affecting delimitation in the OECS region were the proximity of States and dependencies; the presence of islands, rocks, reefs and sandbanks; the presence of dependent territories of metropolitan powers; and the distribution of the natural resource potential of the region. See Law of the Sea, Report of the Secretary-General, UN Doc. A/42/688 (1987) at p. 31; Press Releases of: the Maritime Delimitation Workshop Held in Saint Lucia, 21–22 September 1987, and the 14th Meeting of the OECS Authority Held in Saint Lucia, 24 November 1988 (OECS Secretariat). Note also that another potential instance of rocks under Art. 121, para. 3 is the uninhabited Venezuelan Monks Islands (Los Monjes) for which Colombia would disregard any maritime spaces (and consequently disregard those islands in the use of equidistance) on account of their small size and the lack of habitation. See Bowett, op. cit. n. 48, pp. 322–323; and Jayewardene, op. cit. n. 2, pp. 452–453.

123. Soons, A.H.A., ‘De Nederlandse Antillen en het recht van de zee, Commentaar’ (The Netherlands Antilles and the Law of the Sea, Commentary), in Meijers, H., ed., Volkenrechtelijke aspekten van Antilliaanse Onafhankelijkheid (1980) pp. 269, 278.

124. Ibid, at p. 279. In Soons' opinion, it would be more equitable if Aves, having only the 12 mile territorial sea, formed an enclave within the EEZ of neighbouring islands. Note that as regards the 1978 US-Venzuelan delimitation treaty which also gave Aves full effect, Feldman and Colson report that the United States considered this boundary without prejudice to the Netherlands–Venezuela boundary which was already known to the USA and Venezuela when they signed their agreement. On the other hand, for the United States, ‘as a political matter, there was little to gain and potentially much to lose in asserting a broader US boundary interest, particularly in light of the marginal resource interest in this area’. Feldman, M.B. and Colson, D., ‘The Maritime Boundaries of the United States’, 75 AJIL (1981) pp. 729, 747.

125. Brown, loc. cit. n. 22, p. 206.

126. Cf., the reasoning of the ICJ with regard to the norm-creating nature of Art. 6 of the 1958 Continental Shelf Convention. ICJ Rep. (1969) para. 72 at p. 42. See also Weil, op. cit. n. 13, pp. 233 and 234, emphasizing that the ‘kaleidoscopic role of islands in delimitation, scarcely explained in the case law, is one of the most difficult aspects of the subject’, and that ‘the Court's decision is, in the end, based on an intuitive value judgment, and so inevitably open to criticism’ (emphasis added).

127. Cf., emphasis on the general importance of economic considerations in maritime boundary delimitation by Bowett, D.W., ‘The Economic Factor in Maritime Delimitation Cases’, in International Law at the Time of its Codification, Essays in Honour of Robert Ago (1987) pp. 4563; B. Kwiatkowska, ‘Economic and Environmental Considerations’, in Charney and Alexander, eds., op. cit. n. 13; Vicuña, F. Orrego, The Exclusive Economic Zone – Regime and Legal Nature under International Law (1989) pp. 188227, especially pp. 221227. But note the opposite view of, e.g., Charney, J.I., ‘The Delimitation of Ocean Boundaries’, in Dallmeyer, D.G. and DeVorsey, L., eds., Rights to Oceanic Resources (1989) pp. 25, 4041; Weil, op. cit. n. 13, pp. 258–264.

* © B. Kwiatkowska and A.H.A. Soons, 1990.

** Professor of International Law of the Sea and Associate Director of the Netherlands Institute for the Law of the Sea (NILOS), University of Utrecht, the Netherlands.

*** Professor of Public International Law at the University of Utrecht and Director of NILOS.

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Netherlands Yearbook of International Law
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