A lecture by Ambassador Andrew Jacovides at the Rhodes Academy of Oceans Law and Policy, in Rhodes, two months ago highlights the aspects of international law governing the sea and the territorial waters of littoral states and their islands, providing an excellent rebuke to Turkey’s piratical idea of what the Law of the Sea actually is.
REGIME OF ISLANDS
Article 121 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS III)
A lecture by Ambassador Andrew Jacovides at the Rhodes Academy of Oceans Law and Policy
Rhodes, 12 July 2019
I am very pleased to have the opportunity of addressing you, this time on the Regime of Islands. Even though it occupies only one of the 320 Articles of UNCLOS III, Article 121, the topic of islands is an important issue of the Law of the Sea, as evidenced by the extensive discussions in the early stages of the UN Conference (1973-1982) and in the preparatory stage preceding it (1970-1973) in the Seabed Committee, as outlined in the DOALOS publication “Regime of Islands – Legislative History”. It is very much a live issue today, especially in the Pacific Ocean, but also in several other parts of the world.
What I propose to do, during the limited time available this morning, is to outline the historical introduction to the regime of islands; trace its evolution during the Conference itself following the earlier discussions in the Subcommittee II of the Seabed Committee; indicate the distinction between islands and rocks; outline the findings of the South China Sea Arbitral Tribunal and indicate some of the criticism to them; briefly review how Article 121 was applied by international courts and tribunals; touch on, but not go into detail, the current international disputes involving islands and as applied in practice; and provide conclusions as to how such disputes, and those which no doubt will arise in the future, could be solved peacefully, as required by the UN Charter on the basis of the applicable rules of the Law of the Sea.
In doing so I shall rely on my experience of the past several decades as the representative of my country, Cyprus, in the Seabed Committee, the Third United Nations Conference on the Law of the Sea and as an academic writer in various forums and publications in more recent years (most recently, in a chapter of a volume in honour of Satya Nandan).
International law rules on islands were initially developed through state practice and then through negotiations during successive codification conferences on the Law of the Sea. The status of islands was a question raised in a number of international forums. For example, discussions focused on the type of insular formations which should be accorded fishery zones in the North Sea Fisheries Conference, 1881. Attempts were made in finding a definition for an island at the Hague Codification Conference 1930.
It was not until 1956 that the UN International Law Commission (ILC) initially elaborated rules regarding islands, which were negotiated at the first United Nations Conference on the Law of the Sea. They were then enshrined in the Convention on the Territorial Sea and the Contiguous Zone, as well as in the Convention on the Continental Shelf in 1958. These documents constituted the groundwork for the work of the Third United Nations Conference on the Law of the Sea (UNCLOS III), 1973-1982, on the specific question on the Regime of Islands.
Article 10 of the ILC Report of 1956 stipulated that “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”. The commentary to Article 10 specified that elevations which are above water at low time only and technical installations built on the sea bed are not considered islands and have no territorial sea. Articles 10 and 67 of the ILC Articles were consolidated in the 1958 Convention on the Territorial Sea and the Contiguous Zone. An island was defined as “A naturally formed area of land, surrounded by water, which is above water at high tide”. In the 1958 Conference it was recognized that islands generate their own territorial sea and continental shelf. The principle that islands should be treated as any other land territory for the purpose of entitlement to territorial sea, contiguous zone and continental shelf was expressly recognized in Article 10 (1) of the 1958 Convention on the Territorial Sea and the Contiguous Zone and Article 1 of the 1958 Convention on the Continental Shelf. It is noteworthy that Article 1 (b) of the 1958 Convention on the Continental Shelf expressly provided that the term “continental shelf” is used as referring also “to the sea bed and subsoil of similar submarine areas adjacent to the coasts of islands”, thus dispelling any doubts based on the etymology of the term “continental’ as opposed to “insular” shelf (“insula”, of course means “island”). Thus, the 1958 Convention clearly established that islands are entitled to continental shelf as much as continents do.
In November 1973 the UN General Assembly adopted Resolution 3067 (XXVIII) convening the first session of UNLOS III and dissolved the Committee on the Peaceful Uses of the Seabed and the Ocean Floor Beyond the Limits of National Jurisdiction. The topic of Islands, which had been dealt within the Seabed Committee by Subcommittee II, was referred to the Second Committee of the Conference (under the Chairmanship of Ambassador Aguilar of Venezuela),
During the early stages of the Conference the attempt, systematically pursued by a number of continental states also in the Second Subcommittee of the Seabed Committee, was to differentiate between various kinds of islands and to apply criteria such as size, population, contiguity to the principal territory, geological and geomorphological factors as relevant to the entitlement of islands to the zones of maritime jurisdiction – which now included the EEZ, in addition to the territorial sea, contiguous zone and continental shelf.
On the opposite side, small island states (among them Cyprus and Trinidad-Tobago) but also the United Kingdom and Greece firmly argued 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 exclusive economic zone should be exactly the same in the case of islands and continental land masses”.
These states stressed that:
“We are not prepared to accept any attempt at discrimination against islands in the form of artificial distinctions based on legally untenable considerations. Any deviation from the existing rules, as set out in the 1958 Conventions, should be in favour of islands since, generally speaking, their populations depend on the resources of the marine environment for their development, and even survival, to a greater extent than continental territories”.
(Cyprus position, as reflected in p.27 of the DOALOS Regime of Islands, Legislative History – Caracas session 1974).
The relevant proposals and arguments from both sides are detailed in the DOALOS Legislative History, Regime of Islands, to which you are referred if you are interested to pursue the subject.
This hotly contested issue, in the preparatory stage of the Seabed Committee and in the Conference itself, was settled through the adoption by the Conference of Article 121 in 1975 and later confirmed in the 1982 Convention.
Article 121, Regime of Islands, reads as follows:
“1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3, Rocks which cannot sustain human habitation or economic life of their own have no exclusive economic zone or continental shelf”.
The definition of an island is identical to that in Article 10 (1) of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone which-as already stated-was elaborated by the International Law Commission and had been framed in accordance with the traditionally held view.
This definition marks the rejection of the attempt, persistently pursued by a number of states (where Turkey played an active role) in the Seabed Committee and UNCLOS III, to establish different categories of islands with correspondingly different rights of entitlement to maritime jurisdiction.
The basic proposition of Article 121 that the same criteria apply for determining the maritime zones of jurisdiction of islands as for other land territory follows the traditional line. In customary international law it had always been considered that islands generated a territorial sea. This was expressly recognized in Article 10 (1) of the 1958 Convention of the Territorial Sea and Contiguous Zone. With regard to the newer notion of the continental shelf (Truman Declaration, 1945). Article 1 of the 1958 Convention of the Continental Shelf expressly provided that it be applied to islands. This was recognized to be the customary rule of international law by the International Court of Justice in the North Sea Continental Shelf case, 1969. Article 121 (2) simply recognizes this rule. The Exclusive Economic Zone (EEZ), which was the creation of UNCLOS III, was also covered by Article 121 (2).
Thus, the position stated in Article 121 (2) conclusively marks the acceptance of the views of a number of states participating in the Conference, including several island states, that no distinction whatsoever should be made between islands irrespective of their size, population or political status and the continental land masses; and that the criteria for determining maritime zones of jurisdiction apply to islands in the same way as they apply to continental land. Correspondingly, Article 121 (2) marks the rejection of the proposition that islands should b determined by the special circumstances of each island, such as size, population, contiguity to the principal territory, the physical, geographical and the geomorphological area involved, the general configuration of the respective coasts and even whether they were “situated on the continental shelf of another state”.
A valid reply to the argument that inequity might result if the position in Article 121 (2) was accepted, would be not more than other inequities created by nature. Why should maritime zones of islands of a small size or population be questioned while, for example, the same zones of continental countries consisting largely of deserts or otherwise unpopulated or underpopulated had not been open to dispute? It was argued that, if any discrimination was to be made on islands on the one hand and continental landmasses on the other, this should be in favour rather than at their expense, because ordinarily the populations of islands are dependent on the resources of the sea for their economic development or even survival, while the populations of continental territories could rely on the resources of the hinterland.
The Philippines v. China arbitration (also known as the South China Sea arbitration of 2016) provided the first opportunity for an international tribunal to interpret and apply the meaning of Article 121 (3) in the Regime of Islands under the 1982 UNCLOS.
This case has received substantial attention not only because of its legal but also geopolitical and security implications. Much has been written on it and it has not been free from controversy.
One conclusion of the tribunal was 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 in the Convention. Another aspect is the obligation to protect and preserve the marine environment. But the main aspect and the one most relevant to our topic is the interpretation given by the Tribunal to Article 121. Let me remind you that low-tide elevations are governed by Article 13, while artificial islands, installations and structures, governed by Article 60, do not possess the status of islands. As we have already seen, islands as defined by Article 121 are “naturally formed areas of land”. Low tide elevations and artificial islands have no territorial sea or other zones of maritime jurisdiction. Islands, under Article 121 (2) have the same maritime zones i.e. territorial sea, contiguous zone, continental shelf and exclusive economic zone, as other land territory. The exception, under UNCLOS, is 121 (3), rocks “which cannot sustain human habitation or economic life of their own, shall have no exclusive economic zone or continental shelf”.
The Tribunal’s interpretation of Article 121 (3) was enormously consequential for this dispute and other analogous maritime claims and disputes.
Key to the decision is that the feature must be “naturally formed” with no extension of rights on the basis of artificial expansion.
The use of the term “rock” is not limited to features composed, in a geological sense, of solid rock.
“Human habitation” must be “non-transient” or the population must be “a stable community of people for whom the feature constitutes a home on which they can remain”, thus excluding military personnel.
“Economic life of their own” must have the ability to support an independent economic life without relying on infusion of outside resources nor serving just for extractive activities. Not rely on infusion of outside resources (food or water).
The term “or” (human habitation or economic life) as a matter of practice you would not be able to demonstrate economic life without human habitation.
“Capacity to sustain” does not mean that the feature needs to be presently or has been having economic life, as evidenced by the presence of water, food, shelter in sufficient quantities, to be able to live on it for an indefinite period of time.
Thus, in the case of the Spratly Islands, there has been no historical population, nor evidence of stable human community at any point.
The South China Arbitral Award has been described as “a landmark decision for many reasons, including that it represents the first time that an international adjudicative body has addressed the meaning of Article 121 of UNCLOS” (Professor N. Oral).
At the same time, it has to be noted that some of its findings received criticism. For instance, Prof. Elferink, wrote that “the award is flawed in respect to two critical aspects. First, the Tribunal concludes that “size cannot be dispositive of a feature’s status as a fully entitled island or rock is not on its own, a relevant factor”. Second, the Tribunal interprets the phrase “economic life of their own” in such a way as to render it practically meaningless. Professor Sean Murphy, in his excellent new book “International Law Relating to Islands”, observes that while the overall emphasis appears sound, other aspects of the Tribunal’s analysis might be questioned, and cited the burden of proof that an island does not fall under Article 121 (3) rather than the other way around. Such a burden seems inconsistent with the structure of Article 121, which presents para.3 as an exception. He also observes that the Tribunal’s approach seems to leave little room for an island, over time, acquiring or losing the attributes that place it in one category or the other. Economic life and human habitation are linked to human activities and developments and which may vary over time through changes in the value of resources and human capacity to inhabit or economically develop an area, such as by construction housing and other facilities.
Evidently, it is not feasible here to go into details of these observations and future tribunals no doubt will attend to these in other third party settlement cases.
Some evident examples of para.3 situations such as Rockall where Britain, upon ratifying UNCLOS, accepted that it is a rock; Aves, where Venezuela considers it as an island, (and the United States accepted this position;) Okinotorishima, where Japan considers it an island, but China and Korea objected and the UN Commission of the Continental Shelf took no action pending the resolution of the issue; Jan Mayen where it was treated as an island (first by a three-man conciliation commission, and then by the ICJ) are some eminent examples.
As Tommy Koh was wistfully quoted recently, “if a feature is mine, it is an island; if it is yours, it is a rock”.
Borderline cases may occur as subsequent changes and economic developments may change the capacity of rocks to host human population or produce economic activity.
Departure from the traditional position on the case of rocks is, in any case, more apparent than real. First, the exception from the general rule of full entitlement for islands, does not cover the territorial sea and the contiguous zone. Hence, islands which are no more that rocks (e.g. Rockall) continue to generate these zones of jurisdiction. Second, under the 1982 Convention, the breadth of the territorial sea over which sovereignty exists, extends up to 12NM, unlike the situation in 1958. Third, under the 1958 Convention, “rocks” generated continental shelf, the applicable criteria then being depth and exploitability. The criteria of distance and natural prolongation under the 1982 Convention are considerably wider. Thus, in practical terms, the solitary exception of “rocks” to the principle in Article 121 (2) should not be considered of major significance. Conversely, to insist on full rights of the EEZ and the equivalent continental shelf area on the basis of distance (200NM) and natural prolongation (up to 350NM) for rocks might reasonably have been criticized as unduly excessive and therefore indefensible.
On the whole, therefore, the exception in Article 121 (3), when properly interpreted and applied, does not materially affect the fundamental principle set out in Article 121 (2).
Subsequently to the adoption of the 1982 UNCLOS III and its Article 121 on Islands, international courts and tribunals have had the occasion to apply this article in various contexts, especially in the context of delimitation situations. They include the Eritrea / Yemen Arbitration; Denmark / Norway (Jan Mayen); Libya / Malta; Barbados / Trinidad-Tobago; Qatar / Bahrain; Nicaragua / Honduras; Romania / Ukraine (where the ICJ concluded that is did not “need to consider whether Serpents’ Island fall under para. 2 or 3 of Article 121 of UNCLOS); Bangladesh / Myanmar (ITLOS, on the effect of St. Martin’s Island); Nicaragua / Colombia (where the ICJ applied the customary law principle reflected in Article 121 of UNCLOS, Colombia not being a party to UNCLOS and also referred to Article 121 (3) as not producing entitlement to continental shelf or EEZ). It will not be possible to examine these cases in any detail now.
Today there exist several situations in the world which involve islands in dispute. In some of these cases the issue is disputed sovereignty and in others the issue is the delimitation between states the coasts of which are opposite or adjacent to each other.
One of the most intractable disputes over islands is the case of Falklands / Malvinas between the United Kingdom and Argentina, which occasioned a two-month armed conflict in 1982 and which is still unresolved.
In the Mediterranean, the dispute between Greece and Turkey is primarily over the delimitation of the continental shelf (and indeed of the EEZ, if and when declared) of the Greek Islands in the Aegean as well as the issue of the breadth of the territorial sea, which is still currently 6NM, rather than 12NM as allowed by Article 3 of UNCLOS III.
Further east, around Cyprus, the issue is basically one of delimitation between Turkey and Cyprus. Cyprus has already reached Agreements on the delimitation of its EEZ with Egypt (2003), Lebanon (2007-still unratified by Lebanon and Israel (2010), on the basis of the median line and with a provision for arbitration as the way of solving any disputes arising. Those of you who are interested are referred to my Academic lecture of 2012 on “Recent Delimitation Practice in the Eastern Mediterranean (Erpic website 25 July 2012 http://www.erpic ).
The Pacific Ocean provides a number of situations involving disputes over islands, particularly issues of sovereignty and not only. Currently there is the situation in the Kuriles (Japan / Russia); Dokdo / Takeshima (Japan / Republic of Korea; Senkaku / Diaoyu (Japan / China); several situations in the South China Sea, the Paracels and other issues not decided upon by the 2016 arbitral case between the Philippines and China.
As a general proposition and without referring in particular to these situations, where different parties involved may have their own viewpoints, it is self-evident that these and any other similar situations which may arise in the future, should be settled by the application of Articles 2 (3) and 33 of the UN Charter on the peaceful settlement of disputes, in combination with Part XV of UNCLOS III. However, in an imperfect world, it may be unavoidable that political realities and other extralegal factors may prevent this approach from being followed. If matters get out of hand, it is for the UN Security Council to meet its responsibilities to maintain and restore international peace and security.
In conclusion, it can be safely asserted that the international law definition and the rule giving islands full entitlement to maritime zones of jurisdiction (territorial sea of 12NM, contiguous zone of 24NM, exclusive economic zone of 200NM and continental shelf of 200NM, under the natural prolongation criterion), as stated in Article 121 of UNCLOS III, reflect customary international law. Criteria have also been introduced for establishing a distinction between islands and rocks. On the whole, the exception in Article 121 (3), when properly interpreted and applied, does not materially affect the fundamental principle stated in Article 121 (2). Artificial islands, reefs, low tide elevations are, of course, not covered by Article 121.
In terms of delimitation, islands as such are not “special circumstances”. Consequently, the general rule, that is of starting from the median line in delimiting the coasts of opposite or adjacent states, applies as much to islands as to other territories. The party to a delimitation dispute alleging that a particular island should be considered “special circumstances” in order to depart from the application of the median line so as to reach “an equitable solution” under Articles 74 and 83 of UNCLOS III, has the burden to prove this before any international tribunal (onus of proof).
It is inevitable that disputes arise when the maritime zones of islands overlap with those of other countries thus creating issues of delimitation. Much depends on the particular circumstances of each case. International judges, in the ICJ, ITLOS and Annex VII Arbitral Tribunals, have contributed to the formulation of rules conducive to as much stability and predictability as possible in resolving such disputes, with the median line as the starting point and aiming at an equitable result taking into account the particular circumstances of each case.
But the fundamental rule is that, under the 1982 UNCLOS III Article 121 and customary international law, islands are no less entitled to all the zones of maritime jurisdiction than continental territories.