As explained above, the issues regarding sovereignty over small islet features are complicated, but once they are resolved another set of equally complicated issues present themselves regarding boundary delimitation. These issues concern, first, whether the islet can generate extended maritime zones, and, second, whether the islets should have an effect on the delimitation of boundaries between adjacent and opposite states. Features That Are Submerged at High Tide Cannot Generate Maritime Zones This traditional principle of customary international law is confirmed in Article 121 of the 1982 U. N.
Law of the Sea Convention. Claims to maritime zones based on reefs that are submerged at high tide, even if artificial structures have been built on them, are not valid. [xxix] What Island Features Have the Capacity under Article 121 to Generate EEZs or Continental Shelves? Features that are above water at high tide qualify as “islands” under Article 121 of the 1982 Law of the Sea Convention and are generally entitled to territorial seas. Article 121(3) says, however, that “[r]ocks which cannot sustain human habitation or an economic life of their own” do not generate exclusive economic zones or continental shelves.
The word “rock” is not defined in the Convention, and has been subject to several interpretations. One recent paper prepared by a U. S. law firm employed by Vietnam asserted that a consensus exists, and that “the overwhelming majority of commentators have argued that the term should be interpreted as including any small island. “[xxx] This paper also asserted that the consensus agreed that the “human habitation” formula requires at least the possibility of a permanent civilian population–soldiers and light-house keepers are not sufficient.
[xxxi] The language in Article 121(3) appears to require that the relevant “economic life” of features must be “of their own. ” An artificial economic life supported by a distant population in order to gain control over an extended maritime zone is not sufficient. In earlier writings, I suggested that only islands that have shown the ability to sustain stable human populations of at least 50 persons should be allowed to generate maritime zones, and that the Spratlys do not meet this requirement.
[xxxii] Other authors have reached similar conclusions regarding the inability of these islets to sustain human habitation and thus to generate exclusive economic zones or continental shelves. Vietnamese officials now appear to have adopted the view that the Spratly islets cannot generate exclusive economic zones or continental shelves. [xxxiii] In its May 12, 1977 Statement Declaring a Territorial Sea, a Contiguous Zone, a Continental Shelf and an Exclusive Economic Zone, para. 5, Vietnam made a broad claim for all such zones which one commentator has interpreted to include the Spratlies and Paracels as well as its mainland coasts.
See Valero, id. at 317 n. 12. Ambassador Hasjim Djalal of Indonesia–who is now President of the Assembly of the International Sea-Bed Authority and the coordinator of the Indonesian-sponsored workshops on the South China Sea conflicts–has also expressed that view. [xxxiv] Although the arguments against allowing any of the Spratlys to generate extended zones seem strong, occasional authors continue to suggest that at least some of the islands can generate zones. [xxxv] And China frequently acts as if it assumes the islets can generate extended zones.
How should this issue ultimately be resolved? The best approach, in terms of international law, logic, and practicality would be to deny extended maritime zones to any islet that has not historically maintained a permanent population of at least 50 or so. The concept of extended maritime zones was accepted in the 1982 Law of the Sea Convention because it seemed appropriate to allow coastal populations to have primary responsibility to manage and exploit adjacent resources. Where there is no indigenous population, however, this logic does not apply, and the extended zone should not be permitted.
Article 121(3) is based on this perception and should be interpreted in this light. Should Tiny Islets that Are Artificially Expanded Be Characterized as “Artificial Islands,” and, If So, What Would Their Legal Status Be? Article 60(8) of the Law of the Sea Convention states clearly that artificial islands do not have the capacity to generate exclusive economic zones or continental shelves. It appears to be necessary to characterize some of the current structures in the South China Sea as “artificial islands.
” The Chinese occupations of Subi Reef and Johnson South Reef seem like obvious candidates for this characterization, as does the Malaysian occupation of Dallas Reef, and the Vietnamese occupations of Vanguard and Prince of Wales Banks. Another example is the Japanese islet of Okinotorishima. Article 60(8) was designed to discourage nations from building up submerged reefs and low-tide elevations in order to generate extended maritime zones where none had existed previously. If it is not interpreted according to its clear language, then we would foresee continued efforts to reclaim submerged features in order to lay claim to open ocean areas.
Are All Islets That Are Above Water at High Tide Entitled to Generate 12-Nautical-Mile Territorial Seas? Article 3 of the 1982 U. N. Law of the Sea Convention allows “Every State” to establish territorial seas around its land areas “to a limit not exceeding 12 nautical miles,” and Article 121 allows every feature that is above water at high tide to generate such a zone. Vietnam declared a 12-nautical-mile territorial sea around the Spratlys in a 1977 statement[xxxvi] and China did so in its 1992 Territorial Sea Law.
[xxxvii] One commentator reports that Malaysia has claimed a 12-nautical-mile territorial sea around Swallow Reef and Amboyna Cay but not its other claimed features. [xxxviii] Even though the Law of the Sea Convention allows countries to declare 12-nautical-mile territorial seas around coasts and islands, it does not necessarily follow that a territorial sea of this size is legitimate in all locations and for all purposes. Article 300, entitled “Good faith and abuse of rights,” reminds countries that they must not invoke rights under the Convention in a manner that imposes an unacceptable burden on other nations.
Examples can be found where states have agreed to establish territorial seas of less than 12 nautical miles around islands that are on the “wrong” side of a median boundary line. Hiran W. Jayewardene, in his 1990 book,[xxxix] cites the cases of the Venezuelan island of Isla Patos, between Venezuela and Trinidad & Tobago,[xl] the Abu Dhabi island of Dayyinah, between Abu Dhabi and Qatar,[xli] and the Australian islands in the Torres Strait, between Australia and Papua New Guinea,[xlii] all of which have territorial seas of only three nautical miles.
The islands in the crowded Aegean Sea generate only six-nautical-mile territorial seas. [xliii] Ambassador Hasjim Djalal of Indonesia observed in July 1995 that he did not feel the Spratly islets were entitled to any territorial seas at all, and instead should be simply protected by a small “safety zone. “[xliv] WHAT PRINCIPLES GOVERN THE DELIMITATION OF MARITIME BOUNDARIES? Once the difficult and complex issues identified above are addressed and resolved, it then becomes appropriate to determine how the maritime boundaries in a region should be drawn.
The 1958 Convention on the Continental Shelf[xlv] and the Convention on the Territorial Sea and Contiguous Zone[xlvi] adopted the “equidistance principle” as the method for resolving competing claims to surrounding waters. Under this principle, a disputed area is divided along a line equidistant between the countries involved. But the 1982 Law of the Sea Convention carefully avoids referring to “equidistance” as the proper approach, and instead provides in Articles 74(1) and 83(1) a carefully crafted formula that gives only subtle hints regarding how disputes should be resolved:
The delimitation of the exclusive economic zone [and continental shelf] between States with opposite or adjacent 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. The goal is thus to achieve an “equitable” resolution to boundary disputes, and a variety of principles have been developed to achieve this goal.
One central “equitable principle” is that islands do not have an equal capacity with land masses to generate maritime zones. Even if an islet is deemed to be capable of generating extended maritime zones, it would not command equal strength with an opposing continental area or larger island. To put the process of the boundary delimitation in perspective, it is useful to survey the methods that have been used in recent years by the International Court of Justice and arbitral tribunals.
Even though many of these principles do not directly concern islands, a listing of them is useful to aid in understanding the role islands play in these delimitations. The International Court of Justice (ICJ) and arbitral tribunals adjudicating maritime boundary disputes now follow a standard sequence in approaching a controversy. Professor Jonathan Charney has recently described this common approach as follows:
First, they define the relevant geographical area and the area in dispute. Second, they identify the relevant areas and coastlines. Third, they spell out all the relevant considerations. Fourth, they develop a provisional line based upon an analysis of the relevant considerations. Fifth, they check that line against some of the considerations to determine whether the line is “radically inequitable” and if so, they adjust it accordingly.