MILOPS
Bangkok, 2-3 June 2013
The Significance of Islands
to Maritime Claims
Robert Beckman
Director, Centre for International Law (CIL)
National University of Singapore
Outline of Presentation
1.
Maritime Zones under UNCLOS
2.
Islands and Rocks
3.
Effect of Islands on Maritime Boundary Delimitation
4.
Geographic Features in the South China Sea
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Part 1
Maritime Zones under UNCLOS
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LEGAL REGIMES OF THE OCEANS AND
AIRSPACE
8/9/01
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“Land Dominates the Sea”
• The general principle with respect to claims to rights and
jurisdiction in maritime space is that the land dominates the sea
• All claims to maritime zones must be from land territory
• Land territory includes the mainland territory and islands
• All Maritime Zones are measured from the “baselines” from
which the territorial sea is measured
– Normal Baseline: low water-line along the coast
– Straight Baselines can be used in certain circumstances
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Article 121 Regime of Islands
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, islands have same
maritime zones as other land territory, including territorial sea,
EEZ and continental shelf
3. 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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Article. Reefs
• 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 low-water line of the reef, as shown by the
appropriate symbol on charts officially recognized by the
coastal State.
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Article 13 Low-Tide Elevations
1. A low-tide elevation is a naturally formed area of land which is
surrounded by and above water at low tide but submerged at
high tide.
Where a low-tide elevation is situated within 12 nm from the
mainland or an island, the low-water line on that elevation may
be used as the baseline for measuring the breadth of territorial
sea.
2. Where a low-tide elevation is wholly situated more than 12 nm
from the mainland or an island, it has no territorial sea of its
own.
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Artificial Islands
• Islands because of man-made works on sea-bed or on a low-tide
elevation
• Not “island” because not naturally formed area of land
• No maritime zones of their own
• Coastal State has sovereignty if within territorial sea
• Coastal State has jurisdiction and control if within its EEZ
• Coastal State may establish 500 metre “safety zone”
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Submerged Off-shore Features
• Features which are below water even at low-tide
• Are part of the seabed
• Not subject to a claim of sovereignty because not land
• If structure built on them, their status does not change
• If reclaimed to be artificial island, provisions on artificial islands
applies
• “Jurisdiction” over such features belongs to the State on whose
continental shelf it lies
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Part 2
Islands vs Rocks
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State Practice
• Courts and Tribunals have thus far refused to on rule 121(3) to
clarify when islands are rocks entitled to no EEZ or CS
• One case where a State has “pulled back” its maritime claim
and only claimed a 12 nm territorial sea from an uninhabited offshore island is the UK island of “Rockall”
• In other cases, States have claimed a full 200 nm EEZ and even
an “extended continental shelf” from tiny offshore islands
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Rockall Island (UK)
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Okinotorishima
Okinotorishima
Okinotorishima
Part 3
Effect of Islands on Maritime
Boundary Delimitation Cases
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Courts and Tribunals and Art 121
• Courts and Tribunals have often held that the small offshore
islands are entitled in principle to an EEZ and continental shelf
of their own,
but then dealt with the effect that should be given to the islands
as a matter of delimitation
• In practice, when delimiting the EEZ between the mainland
coast and a small offshore island, courts and tribunals have
usually “enclaved” the island or given it only partial effect
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Effect of Islands on Maritime
Boundary Delimitation Cases
• Qatar / Bahrain (ICJ 2001)
• Bangladesh / Myanmar (ITLOS 2012)
• Nicaragua / Colombia (ICJ 2012)
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Qatar v. Bahrain
• Qit’at Jaradah is a small uninhabited island with no vegetation
under Bahrain’s sovereignty, located within 12 nm limit of both
States
• Even the smallest island generates a 12-nautical-mile territorial
sea
However,
• Where an island is located in a narrow body of water less than
24 nm between two coastal States, courts and tribunals may
choose to ignore the island to ensure that both States enjoy
proportionate territorial seas
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Qit’at Jaradah
• Located midway between the
Boundary
line (ICJ)
main island of Bahrain and Qatar
peninsula
• If given effect, it will create a
disproportionate effect to the
boundary line
Qit’at
Jaradah
(Bahrain)
• The ICJ decided to give no effect
to Qit’at Jaradah in the drawing of
Territorial Sea boundary between
Qatar and Bahrain
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Territorial Sea Boundary
decided by ITLOS
EEZ and CS Boundary
decided by ITLOS
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Quitasueño – Island or LTE ?
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Quitasueño
• One of the features at Quitasueño, namely QS 32, is above
water at high tide and thus constitutes an island within the
definition embodied in Article 121, paragraph 1, of UNCLOS
• The other 53 features identified at Quitasueño are low-tide
elevations
• Colombia is entitled to use those low-tide elevations within 12
nautical miles of QS 32 for the purpose of measuring the
breadth of its territorial sea.
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Quitasueño
• Quitasueño is a rock incapable of sustaining human habitation
or an economic life of its own and thus falls within the rule
stated in Article 121, paragraph 3, of UNCLOS, it is not entitled to
a continental shelf or EEZ.
• Accordingly, the boundary between the continental shelf and
EEZ of Nicaragua and the Colombian territorial sea around
Quitasueño will follow a 12-nautical-mile envelope of arcs
measured from QS 32 and from the low-tide elevations located
within 12 nautical miles from QS 32
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Serrana
• The Court recalls that it has already concluded that it is
unnecessary to decide whether or not Serrana falls within the
rule stated in Article 121 (3)
• Its small size, remoteness and other characteristics mean that,
in any event, the achievement of an equitable result requires
that the boundary line follow the outer limit of the territorial sea
around the island.
• The boundary will therefore follow a 12-nautical-mile envelope
of arcs measured from Serrana Cay and other cays in its
vicinity.
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Part 4
Geographic Features in the
South China Sea
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Spratly Islands
• More than 130 “geographic features” in Spratly Islands
• Less than 40 meet the definition of an island in Article 121
• Only 10-13 are large enough to be entitled in principle to an EEZ
and CS of their own
• Total dry land area of the 13 largest is less than 2 km2
• Itu Aba - the largest and only island with fresh water – is 400 x
1400 metres
• Many of the occupied features are low-tide elevations or
submerged reefs which have been turned into artificial island
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Itu Aba / Taiping (Taiwan)
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Namyit Island (Vietnam)
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Spratly Island (Vietnam)
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Sin Cowe (Vietnam)
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Thitu Island (Philippines)
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Northeast Cay (Philippines)
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China
China//Philippines
Philippines//Vietnam/Taiwan
Vietnam/Taiwan/Malaysia
/Malaysia
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Philippines v China Case
• In January 2013 the Philippines invoked the UNCLOS dispute
settlement procedures to bring China to Arbitration under Annex
VII
• One of the issues in the case is on Article 121(3) on “rocks”
• The Philippines argues that the islands occupied by China are
rocks which are only entitled to a 12nm territorial sea
• The Philippines argues that other features occupied by China
are low-tide elevations entitled to no maritime zones of their own
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Scarborough Shoal
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Scarborough Shoal
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Chinese Occupied Islands and Low
Tide Elevations
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Cuarteron Reef
9°55’N, 115°32’E (reef above water at high tide in US map) Isolated atoll,
Closest potential island is Spratly Island, over 50nm away
Mischief Reef
9°55’N, 115°32’E (Reef in US
map) Isolated atoll,
Closest islands are Sin Cowe
East Island and Nanshan Island,
40-60nm away
Limits of Philippines v China case
• The Statement of Claim of the Philippines does not raise the
issue of whether the larger islands in the Spratlys are entitled in
principle to an EEZ and continental shelf of their own
• The largest islands in the Spratlys are occupied by Taiwan (1),
Vietnam (5) and the Philippines (5)
• If they are in principle entitled to an EEZ and continental shelf,
the issue then arises as to how to delimit the maritime
boundaries between the disputed islands and the mainland
coasts
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Thanks for your Attention
Robert Beckman
Director, Centre for International Law
Email: [email protected]
Website: www.cil.nus.edu.sg
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