THE TROUBLE WITH ISLANDS by Clive Howard Schofield A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in The Faculty of Graduate Studies (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) August 2009 © Clive Howard Schofield, 2009 ii ABSTRACT This thesis focuses on one of the most problematic aspects of the international law of the sea – the question of how to deal with islands with respect to claims to maritime jurisdiction and the delimitation of maritime boundaries. Issues related to islands are at the root of numerous disputes around the world. These disputes fall into two broad categories: sovereignty disputes over islands and disputes concerning their capacity to generate maritime jurisdictional claims. Both types of dispute have implications for the delimitation of maritime boundaries between States. The research examines maritime jurisdictional issues, including an overview of the development and codification of the law of the sea, and provides analysis of the fundamental issues of baselines and the maritime jurisdictional claims that are measured from them. The critical importance of islands to the generation of claims to maritime zones on behalf of States is highlighted. In this context, the study explores why sovereignty over or the classification of, frequently small, remote, and often uninhabited islands is contested among States. The research reviews and critically analyses the regime of islands in international law. Types of insular features and their capacities to generate maritime claims are distinguished and potential sources of clarification for these distinctions are identified. The role and treatment of islands in the delimitation of maritime boundaries is analysed and emerging trends in both State practice and international jurisprudence on this issue are assessed with particular reference to key decisions of the International Court of Justice. The study also examines the potential impacts for islands and the maritime claims generated from insular features, arising as a consequence of sea-level rise. The research offers practical guidance as to policy options to address the complex legal and geotechnical problems identified. iii TABLE OF CONTENTS ABSTRACT ........................................................................................................................ ii TABLE OF CONTENTS ................................................................................................... iii LIST OF TABLES .............................................................................................................. v LIST OF FIGURES ........................................................................................................... vi ACKNOWLEDGEMENTS .............................................................................................. vii DEDICATION ................................................................................................................... ix Chapter 1 ............................................................................................................................. 1 1.1 Introduction .......................................................................................................... 1 1.2 Aims ..................................................................................................................... 4 1.3 Research Questions .............................................................................................. 5 1.4 Research Approach .............................................................................................. 6 1.5 Thesis Outline .................................................................................................... 10 Chapter 2 ........................................................................................................................... 17 2.1 Islands and Maritime Claims .............................................................................. 17 2.2 Sovereignty and Statehood – Boundaries and Territory .................................... 18 2.3 The Development of the International Law of the Sea ...................................... 23 2.3.1 Early Debates: Mare Liberum versus Mare Clausum ................................. 23 2.3.2 Creeping Coastal State Jurisdiction ............................................................ 25 2.3.3 Codification Efforts .................................................................................... 28 2.4 Baselines ............................................................................................................. 31 2.4.1 Types of Baseline ........................................................................................ 32 2.4.2 Potential Impacts on Maritime Jurisdictional claims .................................. 52 2.5 The Limits of Claims to Maritime Jurisdiction .................................................. 56 2.5.1 Spatial Limits .............................................................................................. 56 2.5.2 Consequences for the Division of the Oceans ............................................ 62 2.5.3 Continuing Jurisdictional Creep ................................................................. 64 2.6 The Importance of Islands .................................................................................. 66 2.7 Conclusions ........................................................................................................ 71 Chapter 3 ........................................................................................................................... 74 3.1 The Regime of Islands under International Law ................................................ 74 3.1.1 Historical Development of the Regime of Islands ...................................... 75 3.2 Defining Islands ................................................................................................. 77 3.2.1 Naturally Formed ........................................................................................ 77 3.2.2 Area of Land ............................................................................................... 79 3.2.3 Surrounded by Water .................................................................................. 80 3.2.4 Above High Tide ......................................................................................... 80 3.3 Rocks .................................................................................................................. 81 3.4 Interpreting Article 121 ...................................................................................... 82 3.4.1 The Drafting History of Article 121 ........................................................... 83 3.4.2 Does Size Matter? ....................................................................................... 83 3.4.3 Conflicting National Interests ..................................................................... 87 3.3.4 A Case of Intentional Ambiguity? .............................................................. 88 iv 3.3.5 Subsequent Developments .......................................................................... 91 3.3.6 The Meaning of the Term “Rock” .............................................................. 91 3.5 Clarifying Article 121 ........................................................................................ 93 3.5.1 Sources of Clarification of the Regime of Islands ...................................... 93 3.5.2 National Legislation .................................................................................... 94 3.5.3 Decisions of International Courts and Tribunals ........................................ 97 3.5.4 An Avenue Closed? .................................................................................. 117 3.6 Low-tide Elevations ......................................................................................... 125 3.7 Submerged Banks and Shoals and Artificial Islands ....................................... 127 3.8 Conclusions ...................................................................................................... 128 Chapter 4 ......................................................................................................................... 130 4.1 An Incomplete Mosaic ..................................................................................... 130 4.2 Overlapping Claims and Maritime Boundary Disputes ................................... 133 4.2.1 Islands and Maritime Boundary Disputes ................................................. 136 4.3 The Purpose and Value of Maritime Boundaries ............................................. 141 4.4 The Delimitation of Maritime Boundaries ....................................................... 145 4.4.1 Relevant International Legal Principles .................................................... 145 4.4.2 Delimitation of the Territorial Sea ............................................................ 147 4.4.3 Delimitation of the EEZ and Continental Shelf ........................................ 148 4.4.3 The Current Approach .............................................................................. 156 4.5 The Treatment of Islands in Maritime Boundary Delimitation ........................ 163 4.5.1 Decisions of International Courts and Tribunals ...................................... 165 4.5.2 State Practice Involving Islands ................................................................ 186 4.6 Conclusions ...................................................................................................... 192 4.6.1 The Treatment of Islands in Maritime Delimitation ................................. 192 4.6.2 Implications for Insular Status .................................................................. 194 4.6.3 The Value of Precedents from Case Law and State Practice .................... 197 4.6.4 Practical Implications ................................................................................ 199 Chapter 5 ......................................................................................................................... 203 5.1 Islands Under Threat ........................................................................................ 203 5.2 Rising Tides: The Threat of Global Sea Level Rise ......................................... 206 5.2.1 Ambulatory Baselines ............................................................................... 210 5.2.2 Ephemeral Islands? ................................................................................... 213 5.2.3 Implications ............................................................................................... 214 5.3 Options to Counter the Threat of Sea Level Rise ............................................. 221 5.3.1 Building Castles in the Sand? ................................................................... 222 5.3.2 Legal Options: Fixing the Normal Baseline ............................................. 226 5.3.3 Fixing Maritime Limits and Boundaries ................................................... 229 5.3.4 Options in the Face of Total Inundation of Land Territory ...................... 230 5.4 A Fresh Approach? ........................................................................................... 236 Chapter 6 ......................................................................................................................... 239 6.1 Maritime Claims and Islands ............................................................................ 240 6.2 The Regime of Islands ...................................................................................... 245 6.3 Maritime Boundary Delimitation and the Role of Islands ............................... 246 6.4 Islands and Sea Level Rise ............................................................................... 249 Bibliography ................................................................................................................... 251 v LIST OF TABLES Table 2.1 Sovereignty Disputes over Islands ...................................................... 73 Table 4.1 The Role of Islands in the Delimitation of Maritime Boundaries .... 195 vi LIST OF FIGURES1 Figure 1.1 Artist’s Impression of Ferdinandea/Graham Island .............................. 2 Figure 2.1 Baselines and Claims to Maritime Jurisdiction .................................. 31 Figure 2.2 Norway’s Straight Baselines ............................................................... 37 Figure 2.3 Additional Maritime Areas Gained as a Result of the Application of Straight Baselines ....................................................... 54 Figure 2.4 Schematic of the Continental Shelf Showing Outer Continental Shelf Entitlement and Constraint Lines .............................................. 62 Figure 2.5 Maritime Jurisdictional Claims from Islands and Rocks .................... 70 Figure 3.1 The United Kingdom’s Rockall ‘Roll-back’ ....................................... 97 Figure 3.2 Location of Heard Island and McDonald Island and the Kerguelen Islands .............................................................................. 104 Figure 3.3 Location of Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge ...................................................................................... 106 Figure 3.4 Okinotorishima and Japan’s Maritime Claims ................................. 122 Figure 4.1 The Malaysia-Vietnam Joint Outer Continental Shelf Submission .. 138 Figure 4.2 Maritime Boundary Delimitation in the Black Sea Case .................. 160 Figure 4.3 Maritime Boundary Delimitation in the Anglo-French Arbitration . 167 Figure 4.4 Maritime Boundary Delimitation in the Libya/Malta Case .............. 170 Figure 4.5 Maritime Boundary Delimitation and Outer Continental rights off St. Pierre and Miquelon .................................................................... 177 Figure 4.6 Maritime Boundary Delimitation in the Jan Mayen Case ................ 180 Figure 4.7 Maritime Boundary Delimitation between Italy and Tunisia ........... 191 Figure 5.1 Netherlands chart 110, 2002 edition ................................................. 219 Figure 5.2 Netherlands chart 110, 2004 edition ................................................. 220 1 Author holds copyright over all figures with the exception of Figure 1.1 which is in the public domain and Figures 5.1 and 5.2 which are provided by kind permission of the Hydrographic Service, Royal Netherlands Navy. vii ACKNOWLEDGEMENTS I owe an enormous debt of gratitude to numerous people who made possible the research that went into the writing of this thesis. First and foremost I would like to offer a wholehearted thank you to Sandra for her exceptional and unfailing support, grace and good humour. This was essential to the completion of the research. Thanks are also due to Jamie for putting up with Daddy disappearing very early every morning! This thesis is dedicated to the two of you. A most sincere thank you is also due to Professor Ian Townsend-Gault. Ian, thank you for all your friendship, encouragement, insights and exceedingly useful advice and guidance in the course of the research – all of which were very much appreciated and were fundamental to this journey (and we had great fun along the way!). Many thanks too to Charlotte for all your gracious hospitality. Thanks also to my Mum and Dad for all their unstinting encouragement from afar and a special thank you to Jean and Andrew for their support to myself, Sandra and Jamie from somewhat closer at hand. Alison and Victor (and little Alex!) Carruthers-Guerriero also deserve special mention for all their joyous enthusiasm. Thanks too to my colleagues in the LLM class for their unremitting good humour and fellowship along the way, together with Dr Mary Liston and Professor Shigenori Matsui for helping us to navigate the choppy waters of legal philosophy. Thanks too to Joanne for keeping us all on the straight and narrow and for having offered great advice and viii practical assistance coupled with plenty of good humour. The assistance of the staff at the UBC Law Library was second to none. No book was too obscure (or expensive!) to acquire and their efficient and friendly help and advice was greatly appreciated. Other Canadian colleagues and friends who deserve particular thanks include Professor Ted McDorman (and Alana) of the University of Victoria, Professor Suzanne Lalonde of the Université de Montréal, Rob van de Poll of Fugro and Ron Macnab, formerly of the Geological Survey of Canada. Thanks too to my friends and colleagues at the Australian Centre for Ocean Resources and Security (ANCORS), particularly Professor Martin Tsamenyi, who was instrumental in allowing me the opportunity to undertake research in Canada for an extended period of time. Thanks also to my friend and colleague Andi Arsana for his assistance in redrawing a number of the illustrations. ix DEDICATION To Sandra and Jamie. 1 CHAPTER 1 The Trouble with Islands 1.1 Introduction On 18 July 1831 a landing party led by Captain Humphrey Le Fleming Senhouse scaled the summit of a volcanic islet which had recently emerged from the Mediterranean Sea around 30 kilometres (km) south of Sicily. Captain Senhouse planted the Union Jack, claiming this new territory for the British Crown, and named it Graham Island after the then First Lord of the Admiralty.2 While this action was entirely in keeping with Britain’s imperial policies and ambitions of the time, especially where strategically located islands close to major Mediterranean shipping lanes were concerned, rather predictably, the locals were a little upset. The Bourbon Kingdom of the Two Sicilies responded by sending its own vessel, the crew of which removed the offending flag and claimed the island on behalf of King Ferdinand II, renaming it Ferdinandea in his honour. Spain likewise showed interest the new island while a French geologist, Constant Prévost, instead hoisted the French tricolour and christened the island once again, this time as Île Giulia [Julia] on account of its appearance in the month of July. The controversy 2 Sir James Robert George Graham served as First Lord of the Admiralty from 1830 to 1834. See, < http://www.britannica.com/EBchecked/topic/240717/Sir-James-Robert-George-Graham-2nd- Baronet >. 2 concerning sovereignty over the island, which grew to stand around 60 metres (m) above sea level, raged for five months until it obligingly sank back beneath the waves.3 Figure 1.1 Artist’s Impression of Ferdinandea/Graham Island Source: Field journal of Constant Prévost4 An obscure and slightly bizarre historical footnote? Perhaps. There is a further, and rather more modern, twist to the tale, however. In March 2001 it was noticed that the submerged volcano that caused the island to form in the nineteenth century (and the diplomatic furore to ensue) was active once again, raising the possibility that the volcanic 3 On the acquisition of territory in international law see, O’Connell, D.P., “International Law”, 2nd edition, Vol.1, (London, Stevens and Sons, 1970): 405-443. See also, for example, Shaw, M., International Law, 5th edition, (Cambridge: Cambridge University Press, 2003), at 417-441. See also, the Island of Palmas Case, Scott, Hague Court Reports 2d 83 (1932) (Perm. Ct. 4rb. 1928). 4 Artists impression of the 1831 eruption leading to the emergence of Ferdinandea/Graham Island appearing in the field journal of French geologist Constant Prévost, by an unknown artist, available at, <http://en.wikipedia.org/wiki/Ferdinandea>. The image is in the public domain as copyright has expired. 3 seamount remnants of Ferdinandea/Graham Island, lying only around eight metres below sea level, might rise anew. This led to Ferdinand II’s descendant, the self-styled Prince Carlos of Calabria, being recruited to oversee the lowering of a 150 kilogram marble plaque over the once-was-island bearing the inscription, “This piece of land, once Ferdinandea, belonged and shall always belong to the Sicilian people.” In November 2002, volcanic activity once again raised concerns that the island might re-emerge and a team of Italian divers descended in order to plant a flag on the undersea feature. The flag featured a Medusa’s head surrounded by three naked legs, which traditionally is taken to signify that one should keep away. This action was apparently taken in an attempt to ward off any potential sovereignty claims by other States, including Britain’s long dormant imperial claims.5 The point of opening the present discussion with this curious vignette is that it provides an eloquent illustration of the value that States attach to territory, including small islands, however worthless that territory or remote and barren the islands in question may appear to be. The tale of Ferdinandea/Graham Island also serves to demonstrate the enduring importance of and potential for disputes to fester over islands and potentially lead to political instability. This example also dramatically demonstrates the way in which coastlines can change over time with islands both emerging above the waves and also sinking beneath them – a threat that is all too real in an era of climate change and sustained and potentially dramatic sea level rise. 5 For more on the Ferdinandea/Graham Island dispute see, for example, George, R. “The Island that Time Remembered”, The Independent, 26 September 2001; “Scientists on alert for hidden island”, Reuters, 25 November 2002; “Volcano may emerge from the sea”, British Broadcasting Corporation (BBC) News Online, 26 November 2002. 4 All of these issues are addressed in the present research which focuses on one of the most problematic aspects of the international law of the sea – how to deal with islands. Issues related to islands are at the root of numerous disputes around the world (see Table 2.1). Many of these insular features are small, remote, uninhabited (and arguably uninhabitable) and seemingly worthless “fly specks on the map.”6 Why are islands such a troublesome features of the maritime political landscape (and seascape)? Indeed, why have apparently insignificant insular features proven capable of souring neighbourly relations, even leading to military posturing, sabre-rattling and gun-boat diplomacy and leading States to the brink of armed confrontation and conflict? Moreover, what are the prospects for resolving the disputes that have arisen involving islands? How are islands defined in international law and how are they treated in the context of the delimitation of maritime boundaries? Furthermore, how will the looming threat of sea level rise as a consequence of global warming impact on the baselines, status and maritime claims associated with islands and what are the options to overcome these challenges? 1.2 Aims The present research deals with a number of interrelated ‘troubles’ or challenges associated with islands and the aims of the research can be summarised as follows: 6 See, for example, Van Dyke, J. “Speck in the Ocean Meets Law of the Sea”, letter to the editor, New York Times 21 January 1988, in reference to Japan’s Okinotorishima (see below) available at <http://query.nytimes.com/gst/fullpage.html?res=940DE3D9163DF932A15752C0A96E948260&s ec=&spon=#>. 5 • Provide an overview of maritime jurisdictional issues as they pertain to islands. • Review and analyse the regime of islands in international law and explore potential sources of clarification of that regime. • Investigate and critically assess the role of islands in the generation of claims to maritime jurisdiction and, particularly, in the delimitation of maritime boundaries. • Examine the potential impacts for islands and the maritime claims generated from insular features, arising as a consequence of sea level rise. With respect to each of these aims it is also the objective to provide practical guidance as to policy options to address the complex legal and geotechnical problems identified. 1.3 Research Questions • What prompts fierce disputes among States over such seemingly insignificant offshore features? • As a matter of international law, where exactly does the land end and the sea begin? How can these rules be applied to islands? • What is an “island” versus a “rock”, “reef” or “low-tide elevation”? Can these distinctions be clarified? • Should all pieces of “land”, including islands, be treated equally in the context generating claims to maritime jurisdiction and maritime boundary delimitation? 6 • How are islands treated in the context of the delimitation of maritime boundaries? What trends have emerged from both State practice and international jurisprudence on this issue? • What impact will sea-level rise have on islands and baselines and what legal options are there to counter these threats? 1.4 Research Approach The present research provides an analysis of key aspects of the law of the sea as they apply to islands. The research is, therefore, primarily one grounded in international legal approaches. However, it is worth acknowledging that the author has a background in maritime political geography. Consequently a multidisciplinary, integrated ‘geo-legal’, approach is adopted, drawing from both disciplines. This seems to be an entirely appropriate to an investigation of the subject at hand as the law of the sea is replete with geographical terms and concepts and this certainly applies in the analysis of issues associated with ‘the trouble with islands’. The primary international legal document consulted and appraised is the 1982 United Nations Convention on the Law of the Sea (LOSC).7 LOSC has gained widespread 7 United Nations, United Nations Convention on the Law of the Sea, Publication no.E97.V10, (United Nations, New York, 1983). See 1833 UNTS 3, opened for signature 10 December 1982, Montego Bay, Jamaica (entered into force 16 November 1994). Also available at: <http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.htm> (hereinafter “LOSC” or “the Convention”). It is recognized that this treaty goes by a number of different acronyms, “LOSC” (as above), “UNCLOS” (United Nations Convention on the Law of the Sea) or, by its opponents, “LOST” (Law of the Sea Treaty). LOSC is preferred to UNCLOS in order to forestall confusion with the three United Nations Conferences on the Law of the Sea of 1958 (resulting in the four Conventions, see Chapter 2 below), 1960 and 1974-1982 (resulting in 7 international recognition and at the time of writing there were 158 parties to it.8 LOSC, therefore, provides the generally accepted legal framework governing maritime jurisdictional claims and the delimitation of maritime boundaries between national maritime zones.9 This is not, however, to suggest that LOSC’s antecedents, notably the four Conventions of 1958 will be ignored (see below). The principal focus of this research is the regime of islands, as embodied in Article 121 of LOSC. Analysis of baseline issues as they pertain to islands, including in the context of sea level rise, will also require assessment of LOSC, Article 5, dealing with normal baselines, Articles 7-12, dealing with various types of baselines such as river and bay closing lines, defined by straight lines, and Articles 46-47 devoted to archipelagic States and archipelagic baselines. Moreover, assessment of the treatment of islands in the context of the delimitation of maritime boundaries requires the assessment of LOSC Articles 15, on the delimitation of the territorial sea, and Articles 74 and 83 on the delimitation of the exclusive economic zone (EEZ) and continental shelf respectively. An integrated approach is adopted to the interpretation of the relevant provisions of LOSC. This approach is informed by reference to the Vienna Convention on the Law of LOSC). The terms “UNCLOS I”, “UNCLOS II”, and “UNCLOS III” are used to refer to the three United Nations Conferences on the Law of the Sea. 8 Comprising 157 States plus the European Community. See United Nations, Status of the United Nations Convention on the Law of the Sea, of the Agreement relating to the implementation of Part XI of the Convention and of the Agreement for the implementation of the Convention relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, New York, updated to 5 February 2009, available at <www.un.org/Depts/los/reference_files/status2008.pdf>. 9 It is the case, however, that the provisions of LOSC dealing with the delimitation of maritime boundaries provide scant guidance on this point (see Chapter 4). 8 Treaties of 196910 which calls for the analysis of treaty terms and provisions on the basis of an objective approach in accordance with the ordinary meanings of the words used but supported by a purposive or teleological approach whereby interpretation should be consistent with the treaty’s context, aim and objectives.11 While an integrated approach offers a means to overcome interpretations overly reliant on the ordinary meanings of particular words,12 a key challenge arises in distinguishing exactly what the drafters of a particular treaty, including LOSC, actually intended. With this in mind it is important not only to interpret individual provisions of the Convention, such as Article 121, in the context of LOSC as a whole but also to set the Convention itself against its historical backdrop (see Chapters 2 and 3).13 Where appropriate, for example where the ordinary meaning of terms used appears to be ambiguous or obscure, as appears to be the case for example in respect of Article 121 of LOSC constituting the regime of islands, textual analysis will be supplemented with a review of the relevant drafting history, or travaux préparatoires,14 in order to underpin 10 Vienna Convention on the Law of Treaties, 23 May 1969 1155 UNTS 331 (entered into force 27 January 1980). 11 Ibid. Article 31 of the Vienna Convention on the Law of Treaties states that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” 12 This approach is especially applicable to LOSC given that so few terms are defined in the Convention. Article 1 of LOSC provides definitions for the following terms and phrases: “Area”, “Authority” and “activities in the Area” in respect of the international seabed beyond national jurisdiction, the terms “pollution of the marine environment” and “dumping” and “States Parties”. Otherwise, the ordinary meanings of words used in the Convention are presumed to prevail. 13 It is acknowledged that a substantial and developing literature exists that is devoted to treaty interpretation. For a recent contribution to this literature see, Gardiner, R., Treaty Interpretation, (Oxford: Oxford University Press, 2008). 14 With regard to the drafting history of Article 121 of LOSC, particular reference can be made to Nandan, S.N. and Rosenne, S. (eds.) United Nations Convention on the Law of the Sea 1982: A Commentary, Volume III (Dordrecht: Kluwer Law International, 1995); and, United Nations, Division for Ocean Affairs and 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, (United Nations: New York, 1988). 9 and hopefully illuminate understanding of the regime of islands. 15 Analysis of the relevant provisions of LOSC will be supplemented by assessment of the jurisprudence of international courts and tribunals which deal with issues both relating to the regime of islands and the delimitation of maritime boundaries.16 Furthermore, State practice, notably national legislation relating to the classification of insular features and maritime boundary agreements involving islands, will be examined.17 Documentary research and analysis of the extant scholarly literature devoted to the key issues analysed, notably on the interpretation of LOSC, Article 121, will also be undertaken. Legal analysis will be underpinned, where necessary, by geographical techniques, for example critical spatial analysis of the role of islands in delimitation. This is achieved through the use of geographical information systems (GIS) software in conjunction with digital charting and satellite imagery. This represents a powerful research tool, aiding in the critical analysis of the role of islands in the generation of maritime claims and in the delimitation of international maritime boundaries between States.18 15 Vienna Convention on the Law of Treaties, Article 32. This article notes that supplementary means of interpretation may be used where the meaning of treaty terms is unclear and this may include “the preparatory work of the treaty and the circumstances of its conclusion.” 16 See, for example, the Judgments of the International Court of Justice, available at: <http://www.icj-cij.org/icjwww/idecisions.htm>. 17 Notably, Charney, J.I. and Alexander, L.M. (eds.), International Maritime Boundaries, Vols.I and II (Dordrecht: Martinus Nijhoff, 1993); Charney, J.I. and Alexander, L.M. (eds.), International Maritime Boundaries, Vol.III (Dordrecht: Martinus Nijhoff, 1998); Charney, J.I. and Smith, R.W. (eds.), International Maritime Boundaries, Vol. IV (Dordrecht: Martinus Nijhoff, 2002); Smith, R.W. and D.Colson (eds), International Maritime Boundaries, Vol. V, (Martinus Nijhoff: The Hague, 2005). 18 In particular a geographical information system (GIS) that has been specifically designed to incorporate all of the tools necessary to delineate and analyse geodetic limits and boundaries in the context of LOSC has been employed – Caris LOTS (Law of the Sea). The GIS package in question is a product of the CARIS Corporation, Canada (see, <http://www.caris.com/products/lots/>). 10 1.5 Thesis Outline The present chapter provides a statement of research aims and questions together with an outline of the structure of the thesis. Chapter 2 offers an overview of the development of the law of the sea with respect to claims to maritime jurisdiction with particular reference to the role of islands in generating such claims. Issues relating to the baselines of islands and the way in which islands can play a part in the construction of systems of straight baselines are explored here. An outline of the zones of maritime jurisdiction that can be claimed seaward of such baselines is also provided. The importance of islands to coastal States and thus some of the key reasons for the proliferation of disputes over or related to islands are then examined. In particular, the role of islands in terms of the claims to maritime jurisdiction associated with them is assessed. This factor goes a long way to explaining why maritime and territorial disputes relating to islands have arisen, even where the insular features themselves are apparently of little value intrinsically. This is a significant issue, as the majority of potential maritime boundaries around the world remain undelimited and disputes over islands frustrate or complicate access to and management of ocean resources. Such disputes also represent a significant source of discord among States with the potential to cause friction in bilateral relations and ultimately can, in rare cases, act as flashpoints for armed confrontation. Two broad, though intertwined, categories of disputes related to islands can be identified. First, there are a number of disputes over the ownership of islands, that is, sovereignty 11 disputes over island territory. Second, opposing views exist over the status to be accorded to particular features and thus their capacity to generate claims to maritime jurisdiction. Of particular significance here is the problematic issue of distinguishing between islands capable of generating extended claims to maritime jurisdiction, that is, to continental shelf and EEZ rights, and “rocks” (a sub-category of island) which are incapable of doing so (see below). An important related concern is the role insular features should play in the context of maritime boundary delimitation. For example, should islands belonging to one State, but in close proximity to the mainland coast of another State, be accorded full weight in the construction of an equidistance-based maritime boundary? Precisely this question was addressed, for example, in the context of the Anglo-French Arbitration19 and in the recently concluded Black Sea Case20 before the International Court of Justice (ICJ) (see Chapters 3 and 4). Chapter 2 consists of background material that is essential to framing and contextualizing the subsequent discussion on and analysis of the regime of islands, their role in the delimitation of maritime boundaries and the potential consequences for them stemming from sea-level rise. The material contained in this chapter builds on the previous research contributions of the present writer, among others.21 19 Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf, Decision of 30 June 1977, International Legal Materials, Volume XVIII (1979) 399: 3-129 (hereinafter Anglo-French Arbitration). 20 Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, available at <http://www.icj-cij.org/docket/files/132/14987.pdf> (hereinafter Black Sea Case). 21 See, for example, Carleton, C.M. and Schofield, C.H., Developments in the Technical Determination of Maritime Space: Charts, Datums, Baselines, Maritime Zones and Limits, Maritime Briefing, Volume 3, no.3 (Durham: International Boundaries Research Unit, 2001) and Carleton, C.M. and Schofield, C.H., Developments in the Technical Determination of Maritime Space: Delimitation, Dispute Resolution, Geographical Information Systems and the Role of the 12 An examination of the international law regime of islands, particularly as outlined in Article 121 of LOSC is provided in Chapter 3. The text of Article 121 is considered in detail and critically analysed, supported by reference to its drafting history. The problematic yet significant issue of distinguishing between types of insular feature, especially what constitutes an island capable of extended claims to maritime jurisdiction, that is to continental shelf and EEZ rights, versus a “rock” that cannot generate such claims is highlighted here. The majority of previous analyses of the regime of islands have focused on the interpretation of Article 121, predominantly through analysis of the text of the Article itself, coupled with assessment of the relevant travaux préparatoires. For the most part these efforts have merely confirmed that Article 121 was drafted in a deliberately ambiguous fashion, though it can be observed that leading scholars have reached diverse conclusions. With regard to the present research, the analysis of Article 121 of LOSC, together with its drafting history and a necessarily brief assessment of the scholarly literature devoted to its interpretation is not without merit. As well as establishing the background and parameters to the research and determining the uncertainties and conflicts in interpretation, the analysis will seek to combine and synthesize perspectives and identify elements of consensus. This allows for some narrowing of the interpretation of Article 121 to provide a platform for further investigation. Technical Expert, Maritime Briefing, Volume 3, no.4 (Durham: International Boundaries Research Unit, 2002); and, Prescott, J.R.V. and Schofield, C.H., The Maritime Political Boundaries of the World (Leiden/Boston: Martinus Nijhoff Publishers, 2005). 13 In particular, research will turn to an assessment of the legal sources that could potentially lead to clarification in the interpretation of Article 121. Clarification of Article 121 of LOSC will be sought through an assessment of relevant State practice, particularly through national legislation on islands, and the relevant jurisprudence of international (and, where appropriate, national) courts and tribunals.22 In light of the ambiguous nature of Article 121, the analysis of subsequent State practice and jurisprudence touching on this issue potentially offers an alternative means by which the regime of islands can be clarified. The research therefore seeks to go beyond previous assessments and make a distinctive contribution to the relevant literature. In this context it is, however, recognised that State practice is diverse and often contradictory. Furthermore, international courts and tribunals have proved reluctant to deliver an authoritative interpretation of Article 121 – even when the opportunity to do so has presented itself. However, there are some exceptions to this trend, which gives rise to some prospects for clarification. Chapter 4 is devoted to the critical issue of maritime boundary delimitation with particular reference to the role of islands. In this context there exists a wealth of delimitation agreements and a number of decisions on the part of international courts and tribunals that have successfully dealt with the presence of islands. These bear examination for indications as to best practice. A comprehensive analysis of the vast array of State practice is beyond the scope of the present text. Nonetheless, key examples are drawn from the practice of States which illustrate the diverse and innovative ways in which islands have been dealt with in maritime boundary delimitation agreements 22 This approach has been acknowledged to be in its infancy. See, Elferink, A.G.O., “Clarifying Article 121 (3) of the Law of the Sea Convention: the limits set by the nature of international legal processes”, Boundary and Security Bulletin, Vol.6, no.2 (Summer 1998): 58-68, at 58. 14 between States. A systematic analysis of the decisions of international courts and tribunals is offered, as this experience may have application to maritime boundary disputes involving islands. In particular, emerging trends regarding the treatment of islands in maritime delimitation are highlighted. The objective of this analysis is the elucidation of the practical implications arising for coastal States faced with the prospect of delimiting maritime boundaries with neighbouring States where islands are present in the delimitation equation. From the emerging trends identified practical guidance as to best practice is offered.23 It is, however, acknowledged that although the past practice of international courts and tribunals is highly relevant in subsequent litigation and may also prove to be influential in the context of maritime delimitation negotiations; this is not always the case. In the course of negotiations, the States concerned have considerable discretion with regard to the factors that may be taken into account in the determination of a boundary line (as long as third State rights are not infringed) (see Chapter 4.5). The penultimate chapter, Chapter 5 addresses issues relevant to islands and their maritime claims arising from rising sea levels. While the causes of climate change excite controversy and debate, it is widely accepted that significant sea-level rise is taking place and that this phenomenon is likely to accelerate in the future. This poses a number of potentially disastrous implications for coastal and island States. A number of concerns in respect of national maritime claims are identified and explored. First, the traditional linkage between ambulatory low-water baselines24 and the limits of maritime zones of jurisdiction dictates that as normal baselines recede as a consequence of sea level rise, so 23 This part of the present research builds on the author’s past research contributions, but now with a specific focus on islands as well as the international law of the sea. 24 LOSC, Article 5. See Chapter Two. 15 too the maritime zones measured from such baselines will also retreat leading to diminishment in the spatial extent of the coastal State’s maritime claims. Second, sea level rise has the potential to threaten insular status and this, in turn, may impact on potential maritime jurisdictional claims that can be made from the insular feature concerned. This, accordingly, can have implications for the delimitation of maritime boundaries. The loss of significant areas, even all, of the maritime areas claimed by certain coastal States is likely to have profound economic consequences as jurisdictional rights over the valuable resources within these maritime spaces will be lost. Furthermore, a number of island States ultimately face the dire prospect of total inundation of their territory. The potential for the loss of the entirety of the territory constituting an island State raises further complex and serious legal questions marks over the preservation of national maritime claims. Potential legal responses and options to address or adapt to these threats are highlighted and assessed. This part of the research is the most speculative as its objective is to investigate some of the options open to coastal States seeking to address and adapt to the challenges posed to their maritime jurisdictional rights by sea level rise. It is contended that measures to physically protect the coast from sea level rise are generally unrealistic, save in exceptional circumstances for critical basepoints, in light of the sheer scale of the challenge and the prohibitive costs associated with such interventionist approaches. Alternative, legal options are therefore explored. At the Third United Nations Conference on the Law of the Sea (UNCLOS III) it was generally not anticipated that sea level rise would engender radical shifts in normal baselines and changes in insular status. 16 Consequently, LOSC does not provide mechanisms explicitly designed to deal with these novel problems. The Convention does, however, allow the permanent fixing of some baselines and maritime limits and boundaries. The potential for adaptive legal responses that would provide for the fixing of other valuable baselines and maritime limits is assessed. Related strategies to preserve island status are then examined. Finally, potential legal and policy options in the face of total inundation of an island State’s territory are explored and assessed. While the issue of shifting baselines, islands and maritime limits is well known and the potential impact of sea-level rise in this context has been subject to increasing debate since the late 1980s, these challenges now appear to be significantly more pressing. Innovative legal solutions are required in this context. Finally, Chapter 6 offers concluding observations and reflections. 17 CHAPTER 2 Claims to Maritime Jurisdiction and the Importance of Islands 2.1 Islands and Maritime Claims This chapter provides a preliminary discussion on the nature of sovereignty, boundaries and territory and how these issues apply to the maritime domain. The discussion then moves to an overview of the development of the law of the sea with respect to claims to maritime jurisdiction with particular reference to the role of islands in generating such claims. Issues relating to the baselines of islands and the way in which islands play a part in the construction of systems of straight baselines and closing lines are explored. The research questions relating to determining where the land ends and the sea begins as well as how to apply this to islands are therefore addressed here. An outline of the zones of maritime jurisdiction and how these zones have, in general, advanced offshore is provided, together with a brief assessment of the consequences of these developments for the jurisdictional division of the oceans. The importance of islands to coastal States in this context is reviewed and some of the key reasons for the proliferation of disputes over or related to islands are assessed. The research question relating to the reasons why fierce disputes have arisen over ‘mere flyspecks on the map’ is tackled. 18 2.2 Sovereignty and Statehood – Boundaries and Territory The history of international law since the Peace of Westphalia25 in 1648 has been in large part characterised by the gradual ascendancy and eventual supremacy of the concept of the territorial State.26 States consequently represent the primary actors in international law.27 Traditionally, the possession of “defined territory” represents a key international legal requirement of Statehood, together with a permanent population, government and the capacity to enter into international relations with other States.28 Indeed, there is virtually no area of land worldwide that has not succumbed to what has been termed the “progressive triumph of territorial temptation” and claimed as part of the territory of one State or another.29 The requirement that a State’s territory be “defined” emphasises the crucial linkage between international boundaries and the State, as such boundaries 25 Comprising the Treaty of Osnabrück (May 15, 1648) and Treaty of Münster (October 24, 1648). See, The Articles of the Treaty of Peace, Sign’d and Seal’d at Munster, in Westphalia, October the 24th, 1648, in A General Collection of Treatys, Declarations of War, Manifestos, and other Publick Papers, Relating to Peace and War, Among the Potentates of Europe, from 1648 to the present Time (London: Printed by J. Darby for Andrew Bell in Cornhill, and E. Sanger at the Post- house in FleetStreet, 1710): 1-38. See also (for a more recent reprinting), Israel, F.L. (ed.), Major Peace Treaties of Modern History: 1648-1967, Vol. 1, (New York: Chelsea House Publishers, 1967). 26 On the historical development of the concept of sovereignty see, Hudson, W., “Fables of Sovereignty”, pp.19-31 in Jacobsen, T., Sampford, C. and Tharkur, R. Re-envisioning Sovereignty: The End of Westphalia?, (Aldershot: Ashgate, 2008). 27 This is the case according to the traditional view. For example, Lauterpacht stated: “the orthodox positivist doctrine has been explicit in the affirmation that only states are the subjects of international law.” See, Lauterpacht, H., International Law: Collected Papers, (Cambridge, 1975), at 489. It has been observed, for example by Shaw, however, that “it is less clear that in practice this position was maintained.” See, Shaw, 2003: 177. 28 This definition is set forth in Article 1 of the Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, 165 LNTS 19 (entered into force 26 December 1934). 29 Oxman, B.H., “The Territorial Temptation: A Siren Song at Sea”, The American Journal of International Law, Vol.100 (2006): 830-851, at 830. A rare exception to this near-comprehensive trend is the large unclaimed sector in Antarctica. 19 provide a spatial definition to the limits of a particular State’s sovereignty as well as an overt expression of it. International boundaries are considered to be fundamental to the international legal system and this provides the rationale for the privileged position of boundary agreements in international law.30 The linkage between States and their constituent territories in international legal terms, coupled with the powerful influences of nationalism, patriotism and the demands of domestic and international politics, means that States tend to have great attachment to territory. A threat to part of a State’s territory, however small, can be construed, especially to a domestic audience politically, as an assault on the territorial integrity of a given State and thus a threat to its legitimacy. Sovereignty disputes over remote, uninhabited and apparently desolate islands would seem to fall into this category. It is noticeable, however, that many sovereignty disputes over such far-flung islands have only manifested themselves in the post-World War II period, as extended claims to maritime jurisdiction became more prevalent (see below). The dominant role of bounded territorial States in international relations has been subject to concerted criticism and challenge. This has been prompted by ever deepening globalization which has witnessed increasingly unfettered flows of capital, ideas, information and to a large extent labour, across and within the boundaries of States. These developments have led some to challenge traditional concepts of international relations, the international legal order, States, territories and boundaries. 30 Article 62(2)(a) of the Vienna Convention in the Law of Treaties states that boundary treaties are not subject to change even in the case of “subsequent fundamental change of circumstances.” 20 For example, within the fields of critical social and political theory and critical geopolitics there exists a burgeoning literature that fundamentally questions “the assumption that bordered State sovereignties are the fulfilment of historical destiny”31 and “the spatialization of history.”32 Concomitantly, there has in recent years been “an extraordinary upsurge in international boundary studies in all the social sciences…”.33 The multidisciplinary field(s) coming under the broad umbrella of boundary studies, have moved beyond narrow “linear obsessions” of international boundary lines defined purely in the service of territorial States to more wide-ranging discussions on borderlands, border people and trans-border movements, relations and interactions which tend to go beyond State-centric perspectives and embrace non-State, sub-State and trans-State actors and agencies affected by and influencing boundaries. 34 For all the merit of these arguments, it remains deeply unclear whether the international legal order, and the concept of the territorial State at its heart, is indeed under threat, not least for want of a viable alternative system. 31 Shapiro, M.J. “Introduction to Part 1”, in Shapiro, M.J. and Alker, H.R. (eds), Challenging Boundaries (University of Minnesota Press, Borderlines Volume 2, 1996), at p.3. 32 Tuathail, G. Ó, Critical Geopolitics. The Politics of Writing Global Space (Minneapolis: University of Minnesota Press, Borderlines Volume 6 1996). For an exploration of some of these debates in the context of boundary studies see, Grundy-Warr, C.E.R. and Schofield, C.H. (2005) “Reflections on the Relevance of Classic Approaches and Contemporary Priorities in Boundary Studies”, Geopolitics, Vol.10, no.4 (Winter): 650-662. 33 Blake, G.H. “Geographers and International Boundaries”, Boundary and Security Bulletin, Vol.7, no.4 (Winter 1999-2000), 55-62, at 55. 34 See, for example, the expanding literature on issues of ‘the anthropology of the border’ and in respect of multi-scale identity politics at a variety of scales. Regarding the former see, Wilson, T.M. and Donnan, H. ‘Nation, State and Identity at International Borders’, in T Wilson, T.M. and Donnan, H. (eds), Nation and State at International Frontiers (Cambridge: Cambridge University Press, 1998), at 4. Regarding identity politics and international boundaries see, for example, the special issues “When is the Nation?”, Geopolitics, Vol.7, no.2 (Autumn 2002) and “Postnational Politics in the European Union”, Geopolitics, Vol.9, no.3 (2004); and, Agnew, J. “Territoriality and Political Identity in Europe”, in M. Berezin and M. Schain (eds), Europe Without Borders. Remapping Territory, Citizenship, and Identity in a Transnational Age, (Baltimore, Maryland: The John Hopkins University Press 2003), p.241. See also, Grundy-Warr and Schofield, 2005: 653-655. 21 In the international law context, challenges to the supremacy of territorial States and the traditional international legal order can be detected through attempts to limit the traditionally unilateral powers of territorial States within their international boundaries, for instance through the institutionalisation of regional or global cooperative mechanisms.35 This trend can be seen for example through the development of legal rules in relation to the acquisition of territory, self-determination, human rights, the law of war, trade and investment and the environment and the concomitant role of institutionalized international cooperation through global and regional organizations.36 That said, these developing suites of international rules depend on the consent of territorial States and, importantly, the global and regional bodies and institutions noted above are themselves composed of States. While there is merit in the contemporary discourse and critique of territorial States, such entities have not by any means withered away and remain as the key actors and fundamental building blocks of the international legal system. As noted above, this is perhaps as much for want of a viable alternative as it is a consequence of the powerful forces favouring inertia in the international legal order that exist and which serve to underpin territorial States. Consequently, predictions of a “borderless world” under the aegis of globalisation have proven to be largely unfounded or have been realized only in partial and spatially uneven ways.37 While it may be true to say that “international 35 Oxman, 2006: 831. In Oxman’s view “…recent developments in international law often represent efforts to constrain the territorial state and the temptation to expand its discretionary reach, substantive as well as geographic.” Ibid. 36 Ibid. See also the various contributions to Jacobsen et al., 2008. 37 Arguably this reflects the uneven nature of globalization itself. Thus, whilst globalisation may have led to the decline in the importance of international boundaries as barriers to the flow of capital, ideas, information and to a large extent labour in some parts of the world, such as Western 22 boundaries are not what they once were”,38 with many becoming more permeable and losing some of their traditional ‘sovereignty’ and ‘barrier’ functions,39 it remains the case that international boundaries have by no means been erased. Indeed, in the face of, perceived security threats, notably in respect of (legal and illegal) migrations and refugee flows, transnational criminal activities such as illicit drugs trafficking and, particularly, international terrorism post-9/11, there has in many places been a reassertion of the role of territorial States and their international boundaries as barriers and filters against hostile ‘other’ influences and threats. Concerns over environmental degradation have similarly been raised as a rationale for the retention of the traditional system of bounded sovereign States. Such threats have, arguably, been used by States as a means to reconfirm and underscore their sovereignty, territoriality, legitimacy and coercive powers in defence of national security. Thus, in many areas governments are engaging in practices designed, in essence, to “re-territorialize” their States and this, in turn, has implications for their legitimacy and the contemporary relevance of the territorial State. Simultaneously, international boundaries are in the process of being reaffirmed and reconstructed, both physically and psychologically, rather than removed.40 Europe, elsewhere the opposite is the case and international boundaries are in the process of being actively reconfirmed or recreated. Indeed, even in Western Europe, States retain a crucial role and the “borderless Europe” that exists within the European Union (EU) depends on the consent of the EU’s constituent States which could, if they so wished, withdraw from the Union and reassert national sovereignty and boundaries. See, Newman, D., “Into the Millenium:The Study of International Boundaries in an Era of Global and Technological Change”, Boundary and Security Bulletin, Vol.7, no.4 (Winter 1999-2000), 63-71, at 69. 38 Ibid.: at 63. 39 For a classic view of these international boundary functions see, Prescott, J.R.V. Political Frontiers and Boundaries (London: Unwin Hyman, 1987). 40 For example through the building of border defences – most obviously through the digging of ditches and erection of fences and walls but also through the implementation of ever more sophisticated electronic monitoring, surveillance and enforcement measures – and the reference to ‘threats’ by State governments and in the mass media which serves to reinforce and embed the existence and relevance of both the territorial State itself and the sanctity of its international boundaries. See Grundy-Warr and Schofield, 2005: 653-655. 23 It is also the case that ‘new’ territorial States are coming into existence as the political map of the world, composed as it is of a dynamic mosaic of States and other territorial entities across a variety of scales, continues to evolve and fracture, especially in the aftermath of ethno-territorial conflict.41 This is despite the commonly held illusion of permanency often associated with the political map of the world – something perhaps reinforced by special status of boundary treaties in international law. As such “new” States and entities emerge, so fresh international boundaries are in demand to compartmentalize and contain their sovereignties.42 If this reflects the experience on land, what, then, is the tale offshore? 2.3 The Development of the International Law of the Sea 2.3.1 Early Debates: Mare Liberum versus Mare Clausum An enduring theme in the development of the international regime relating to the oceans has been the tension between the pressure from coastal States towards advancing national claims over the maritime spaces off their coasts and the concept of the freedom of the seas, and in particular freedom of navigation, for all States. At an early stage in the 41 Newman has observed that such conficts provide ‘ample evidence for the importance of hard, territorial, dimensions of state power.” See, Newman, D., “Boundaries”, in Agnew, J., Mitchell, K. and Toal, G. (eds), A Companion to Political Geography (Oxford: Blackwell Publishing 2003), at 133-134 42 See Grundy-Warr and Schofield, 2005: 655-657. It is worth noting, however, that many such “new” boundaries in fact represent the resurrection of historical boundary lines, though this, in turn, can lead to disputes among the multiple States emerging from one territorial entity, as the case of former Yugoslavia aptly demonstrates. Freshly independent States have a marked tendency to respect the international boundaries that they have inherited. 24 development of the law of the sea these competing views were most clearly illustrated by the publication of Mare Liberum [Freedom of the Seas]43 by Hugo Grotius in 1609,44 often cited as a seminal work in the development of the international law of the sea, and John Selden’s riposte, expressed in Mare Clausum [Closed Seas], published in 1635.45 In this classic debate, Grotius contended that “no ocean can be the property of a nation because it is impossible for any nation to take it into possession by occupation” and that for a State to attempt to do so would be contrary to the laws of nature. Selden, in contrast, argued in favour of “closed seas”, thus offering an early articulation of the concept of State sovereignty over the oceans. It is notable that both authors’ views reflected national interests – Grotius in support of the position of his client, the Dutch East India Company; while Selden had been charged with defending the interests of the British Crown over the seas surrounding the British Isles.46 For a long period the demand for freedom of the seas in the interests of ensuring global trade prevailed, with the broad consensus being that coastal State rights should be restricted to a narrow coastal belt generally not extending more than three nautical miles 43 Grotius, H., The Freedom of the Seas Or The Right Which Belongs to the Dutch to Take Part in the East Indian Trade, translated with a revision of the Latin text of 1633 by Van Deman Magoffin, R. Division of International Law, Carnegie Endowment for International Peace (reprinted Union, New Jersey: The Lawbook Exchange, 2001). First published as Chapter 12 of De Indis [The Indies], available at, <http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Fperson=3775 &Itemid=28>. 44 “Hugo Grotius” is the commonly used anglicised version of the Dutch “Huig de Groot”. With apologies to de Groot, the anglicised version is used here. 45 First published in Latin as Selden, J. “Mare Clausum seu De Domino Maris”, republished as “Of the Dominion, or, Ownership of the Sea”, translated into English and set forth with som [sic] additional evidences and discourses by Marchmont Nedham (London: William Du-Gard, by appointment of the Council of State, 1652) (reprinted Clark, New Jersey: Lawbook Exchange, 2004). 46 Churchill, R.R. and Lowe, A.V., The Law of the Sea, 3rd Edition (Manchester: Manchester University Press, 1999): 4. 25 (nm)47 offshore in accordance with the so-called ‘cannon shot rule’.48 While efforts were made towards the institutional development of the international law of the sea, for example through the Hague Codification Conference of 1930 (see below), little progress had been achieved by the mid-Twentieth Century. Substantial changes, however, were afoot with more and more States advancing expansive maritime jurisdictional claims – a phenomenon generally termed ‘creeping coastal State jurisdiction’. 2.3.2 Creeping Coastal State Jurisdiction A 1945 United States Presidential Proclamation on the Continental Shelf, often termed the “Truman Proclamation”;49 is generally regarded as a key catalyst for the expansion of coastal State claims to maritime jurisdiction further offshore. The Truman Proclamation was not, however, the first move to advance claims to maritime areas beyond the territorial sea. Notable developments in this regard include the division and subsequent annexation of the seabed of the Gulf of Paria between the United Kingdom (on behalf of Trinidad and Tobago) and Venezuela in 1942,50 and Argentina’s continental shelf Decree 47 It is acknowledged that technically the correct abbreviation for a nautical mile is “M” and that “nm” should only be used for nanometres. However, “nm” is widely used by many authorities (for example the UN Office of Ocean Affairs and the Law of the Sea) and appears to cause less confusion than “M”, which is often assumed to be an abbreviation for metres. 48 The canon shot rule purportedly equated to the distance a cannon could throw a ball, as proposed by the Dutch in negotiations with the English as early as 1610. See, See, Sanger, C., Ordering the Oceans: The Making of the Law of the Sea, London: Zed Books, 1986): 12. 49 See, Presidential Proclamation No.2667 “Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf”, 28 September 1945, Federal Register 12303; 59 US Stat.884; ; 3 C.F.R. 1943-1948 Comp., p. 67; XIII Bulletin, Department of State, No. 327, September 30, 1945, p. 485. Copy included in Volume II of Brown, E.D., The International Law of the Sea, (Aldershot: Dartmouth, 1994), at 113. A Proclamation was also made in respect of fisheries jurisdiction seaward of the US territorial sea limit (see below). 50 See, Charney and Alexander, Vol.I, 1993: 639-654. It is, however, worth noting in the present context that Article 5 of treaty provides that the agreement refers “solely to the submarine areas of the Gulf of Paria, and nothing herein shall be held to affect in any way the status of the islands, islets or rocks above the surface of the sea together with the territorial waters thereof.” Ibid., at 653. 26 of 1944.51 Nonetheless, the Truman Proclamation was especially influential given that it was the United States taking this bold step. In September 1945, U.S. President Truman issued a pair of Presidential Proclamations relating to maritime areas seaward of the United States’ then three nautical mile territorial sea limits. That relating to the continental shelf stated that: ...the Government of the United States regards the natural resources of the subsoil and sea bed of the 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.52 The Truman Proclamation was explicitly resource-oriented, highlighting the “long range world-wide need for new sources of petroleum and other minerals” and their probably presence underlying “many parts” of the continental shelf off the coasts of the United States, together with the technological developments to make their recovery practicable either at the time or in the near future.53 Jurisdiction over the continental shelf was claimed in order to ensure the “conservation and prudent utilization” of such resources as development took place and on security grounds, with “self-preservation” compelling the coastal nation to “keep close watch over activities off its shores.”54 The exercise of jurisdiction over continental shelf resources by the “contiguous nation” was presented as “reasonable and just” on the basis that efforts to utilise or conserve such resources would 51 The first explicit claim to coastal State jurisdiction over the continental shelf, termed the “epicontinental sea” of Argentina. See, Decree No.1, 385 Concerning Mineral Reserves, January 24, 1944, Boletin Oficial de la Republica Argentina, Vol.52, no.14, 853 (17 March 1944) in United Nations, Laws and Regulations on the Regime of the High Seas, United Nations Document St/LEG/SER.B/1, (New York, United Nations, 1951). 52 Presidential Proclamation No.2667, concerning the policy of the United States with respect to the natural resources of the subsoil and sea bed of the continental shelf, 28 September 1945. 53 Ibid. 54 Ibid. 27 reply upon “cooperation and protection from shore” and because “the continental shelf may be regarded as the extension of the land mass of the coastal nation and thus naturally appurtenant to it”, which seems to represent an alternative way of saying ‘natural prolongation’ (see below and Chapter 4.4.3), with the resources in question frequently forming “a seaward extension of a pool or deposit lying within its territory.”55 The Truman Proclamation did, however, include a clear statement that “[t]he character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.”56 The United States similarly claimed the right to designate fishery conservation zones in the high seas beyond American-claimed territorial sea.57 Following these developments, a number of other States began to claim jurisdiction over areas far beyond the traditional territorial sea and, indeed, functionally in terms of the rights claimed offshore. Of particular note, a number of Latin American countries proceeded to claim sovereignty over both seabed and water column out to 200nm offshore – prompting diplomatic protests from the United States, United Kingdom and others.58 The seeds of extended maritime jurisdiction covering the living and non-living resources of both the seabed and water column were sown and swiftly came to germination. The profusion of extended 55 Ibid. 56 Ibid. 57 It is notable, however, that the fisheries proclamation refers to the regulation and control of fishing and offers to enter into agreements with other States as opposed to the continental shelf proclamation which claims “jurisdiction and control”. Copy reprinted in 40 American Journal of International Law, Official Documents: 45. 58 For example, in a joint declaration dating from 1952 Chile, Ecuador and Peru in which the three countries asserted their “sole sovereignty and jurisdiction over the area of sea adjacent to the coast...and extending not less than 200 nautical miles from the said coast.” Reproduced as Annex I in United States Department of State, “Maritime Boundary: Chile-Peru”, Limits in the Seas, No.86, (Washington D.C.: Office of the Geographer, Bureau of Intelligence and Research, 2 July 1979). 28 claims to maritime jurisdiction largely sparked by the Truman Proclamation led to a clear need to clarify and codify the international law of the sea respecting maritime jurisdictional rights and obligations.59 2.3.3 Codification Efforts Early efforts to codify the international law of the sea in treaty-form include the appointment of a Committee of Experts for the Progressive Codification of International Law by the Council of the League of Nations in the 1920s leading up to the Hague Conference on the Codification of International Law of 1930.60 As the Hague Conference did not result in a treaty on the law of the sea, a renewed effort was made in the post-war period. The United Nations General Assembly established an International Law Commission (ILC) in 1947. The ILC subsequently undertook seven years of preparatory work, including the circulation of 76 draft articles to interested States, leading to the publication of a final report and recommendations being issued in 1956. These recommendations were in large part used as a basis for the First United Nations Conference on the Law of the Sea (UNCLOS I) which took place in Geneva in 1958, against a backdrop of progressive creeping coastal State jurisdiction. UNCLOS I yielded four Conventions61 – the Convention on the Territorial Sea and Contiguous Zone,62 the 59 A total of 41 claims to the exercise of jurisdiction over the continental shelf were recorded in the period between the Truman Proclamation of 1945 and the conclusion of the 1958 Convention on the Continental Shelf in 1958 (Townsend-Gault, personal communication, 10 February 2009). 60 A series of sub-committees devoted to the issue of territorial waters meeting in 1925 and 1926 with the recommendations of the sub-committee forming the basis for the subsequent multilateral conference. See, for example, Alexander, L.M., “Baseline Delimitations and Maritime Boundaries”, Virginia Journal of International Law Vol.23, no.4 (1983): 503-536, at 505-509. 61 Collectively these Conventions are often termed the “Geneva Conventions” or the “1958 Conventions”. Hereinafter they are referred to as the “1958 Conventions”). 62 Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964). 29 Convention on the Continental Shelf, 63 the Convention on the High Seas,64 and the Convention on Fishing and Conservation of the Living Resources of the High Sea. 65 One salient issue on which consensus could not be reached at UNCLOS I was agreement on the limits of the territorial sea.66 The Second United Nations Conference on the Law of the Sea (UNCLOS II) of 1960 was convened with a view of tackling the problematic issue over the issue of the proper limit of the breadth of the territorial sea. 67 The Conference came extremely close to achieving its aim, with a proposal for a 6nm territorial sea coupled with a 6nm fishing zone seaward of that, ultimately failing to achieve the two-thirds majority necessary for adoption by a single vote. Consequently, the Conference ended without agreement on the breadth of the territorial sea and a further multilateral negotiation was subsequently called for. The Third United Nations Conference on the Law of the Sea (UNCLOS III) was convened in 1973 and produced the United Nations Convention on the Law of the Sea (LOSC) of 1982. In this context it can be observed that the international law of the sea was codified by States and, unsurprisingly therefore, accords States the primary role. Thus, maritime claims can only 63 Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). 64 Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962) 65 Convention on Fishing and Conservation of the Living Resources of the High Sea, opened for signature 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966). 66 See, for example, Siddayao, C.M., The Offshore Petroleum Resources of Southeast Asia, (Kuala Lumpur/Oxford: Oxford University Press, 1978): 43-44. It is, however, the case that an implied maximum breadth for the territorial sea was contained in the 1958 Convention on the Territorial Sea and Contiguous Zone as Article 24(2) of that Convention did establish that the contiguous zone “may not extend beyond 12 miles from the baseline from which the breadth of the territorial sea is measured.” 67 See, for example, Sanger, 1986: 17-18. 30 be advanced by States68 and such a State requires land territory and a coastline in order to make such claims.69 As noted above, LOSC has gained widespread international recognition and at the time of writing (in July 2009) there were 158 parties to it.70 A notable absentee from the list of States parties to LOSC is the United States. Nonetheless, the United States accepts that much of LOSC, including the maritime jurisdictional and boundary delimitation provisions, is declaratory of customary international law and conducts its policy accordingly.71 For parties to the Convention it provides the binding legal framework governing maritime jurisdictional claims and the delimitation of maritime boundaries between national maritime zones. Indeed, those parts of the Convention dealing with maritime claims and maritime boundary delimitation can be considered declaratory of customary international law. As previously noted, however, the provisions of LOSC on maritime boundary delimitation provide only limited guidance (see Chapter 4). 68 This is implicit from the terms and language of the Convention. For example, in the preamble to LOSC reference is made to the desirability of establishing “a legal order for the seas and oceans” through the Convention “with due regard to the sovereignty of all States”. The preamble goes on to state the belief that the progressive development and codification of the law of the sea achieved through the conclusion of the Convention “will contribute to the strengthening of peace, security, cooperation and friendly relations among all nations” in accordance with the principles laid down in the Charter of the United Nations. Among the few definitions of terms provided in Article 1 of LOSC, “States Parties” is defined as “States which have consented to be bound by this Convention and for which this Convention is in force.” Furthermore, regarding claims to maritime zones of jurisdiction, States are given an exclusive role. For example, Article 2 of LOSC dealing with the territorial sea provides that “[t]he sovereignty of a coastal State extends…”. Similar language prevails in respect of the other types of maritime zones covered by LOSC. 69 Possession of land territory and a coastline are prerequisites for claims to maritime jurisdiction. As Prosper Weil has observed: “...the land dominates the sea and it dominates it by the intermediary of the coastal front.” See, Weil, P., The Law of Maritime Delimitation - Reflections, (Cambridge: Grotius, 1989), at 50. 70 Comprising 158 states plus the European Community. See note 6 above. 71 Roach, J.A. and Smith, R.W., United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff Publishers, 1996), 4-6. 31 2.4 Baselines The interface between the land and sea for maritime jurisdictional purposes consists of a coastal State’s baselines. Baselines are of fundamental importance to coastal State claims to maritime jurisdiction as they provide the starting point from which these claimed zones are measured. While often termed “territorial sea baselines”, such baselines are fundamental to not only the territorial sea, but all other maritime zones, since the contiguous zone, exclusive economic zone (EEZ) and continental shelf 72 are all measured from relevant baselines (see below and Figure 2.1). Figure 2.1 Baselines and Claims to Maritime Jurisdiction Source: Adapted from Geoscience Australia and Schofield and Arsana, 2009: 74.73 72 This issue is somewhat more complex when claims to ‘extended’ or ‘outer’ continental shelf rights are under consideration. Nonetheless, distance measurements from baselines, especially the 200 and 350 nautical miles limits are crucial to the determination of the limits of these claimed sovereign rights (see below). 73 See, Geoscience Australia, “Maritime Boundary Definitions”, available at, <http://www.ga.gov.au/oceans/mc_amb-bndrs.jsp>. Adapted and redrawn by the author. 32 Baselines are also important because, just as baselines provide the starting line for the measurement of maritime zones offshore, equally they also represent the outer limit of a State’s land territory74 or a State’s internal waters.75 Baselines are also frequently crucial to the delimitation of maritime boundaries. This is the case because baselines have a direct bearing on the construction of an accurate equidistance or median line76 and the majority of maritime boundaries concluded to date have been based on equidistance (see Chapter 4.4).77 The international law rules concerning the construction of baselines were largely codified in the 1958 Convention on the Territorial Sea and Contiguous Zone and subsequently adopted and adapted under LOSC. 2.4.1 Types of Baseline Normal Baselines Under usual circumstances and in the absence of other claims, a coastal State will have “normal” baselines. The rule in accordance with Article 5 of LOSC is that the coastal State will possess “normal” baselines, which coincide with “the low-water line along the 74 Where the low-water line, normal, baselines are used. 75 Where straight baselines and closing lines are applied internal waters will exist landward of the defined baseline. Where, for example, a closing line is defined for a historic bay, however, historic internal waters will exist landward of that closing line. 76 While this is the case, it can be observed that strict equidistance lines are often constructed between opposing sets of normal baselines and there has been reluctance on the part of States to recognise or give full effect to straight baselines, especially where a neighbouring State has defined what might be regarded as excessive straight baselines (see below). 77 In practice the equidistance method has proved more popular than any alternative method by far and most agreed maritime boundaries are based on some form of equidistance. For example, with respect to delimitations between opposite coastal States it has been estimated that 89 per cent of agreements concluded were based on some form of equidistance. The figure does, however, drop to 38 per cent when adjacent State delimitation are considered. See Legault, L. and Hankey, B. (1993) ‘Method, Oppositeness and Adjacency, and Proportionality in Maritime Boundary Delimitation’, pp.203-242 in Charney, J.I. and Alexander, L.M. (1993) (eds) International Maritime Boundaries, Vol.I, (The Hague: Martinus Nijhoff): 214. 33 coast as marked on large-scale charts officially recognized by the coastal State.”78 Normal baselines represent the predominant type of baseline worldwide and, in effect, represent a State’s ‘default’ baselines.79 For example, in the case of Australia, which possesses a fairly extensive system of straight baselines, nonetheless 72.3 per cent of its baselines consist of normal baselines.80 The key issue here is which of many possible low-water lines is to be used as the normal baseline. The low-water line is dependent on the choice of vertical datum. That is, the level of reference for vertical measurements such as depths and heights of tide. Article 5 of LOSC does not specify a particular vertical datum and thus the low-water line to be used. Consequently, there is no ‘wrong’ answer and the choice is left to the coastal State.81 Most coastal States and charting authorities have selected Mean Low-Water Springs (MLWS) Tide or the Lowest Astronomical Tide (LAT) as their preferred chart datum. Nonetheless, it is possible to select from a range of other low-water marks. The vertical 78 This represents a near verbatim repetition of Article 3 of the 1958 Convention on the Territorial Sea and Contiguous Zone. 79 See, Prescott and Schofield, 2005: 94-97. 80 Hirst, B., Project Leader, Maritime Spatial Information and Boundaries Advice, Personal communication, 1 February 2007, cited in, Schofield, C.H. (2008) ‘Australia’s Final Frontiers?: Developments in Australian Delimitation’, Maritime Studies, 158 (January/February): 2-21, at 2-3. This calculation excludes Australia’s external territories (Australian Antarctic Territory, Ashmore and Cartier Islands, Christmas Island, Cocos (Keeling) Islands, Heard Island and McDonald Island, Norfolk Island, and the Coral Sea Islands). 81 See, Carleton and Schofield, 2001: 21-25. Having made that observation, it is nonetheless the case that the International Hydrographic Organization (IHO) favours use of lowest astronomical tide as the vertical datum for the construction of modern nautical charting. See, International Hydrographic Organization (with the International Oceanographic Commission and the International Association of Geodesy), A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea, 1982, Special Publication no.51, 4th edition, (Monaco: International Hydrographic Bureau, 2006) (hereafter TALOS Manual, 2006). 34 datum options mentioned, notably LAT, are particularly low. As the primary objective of nautical charts is to provide an aid to navigation it is unsurprising that the vertical datum most commonly used as chart datum is very low, in order to highlight any near-surface features as potential hazards on the chart. This is clearly advantageous, not to say essential, from the mariner’s perspective. Charts are, however, also used in the law of the sea context, in particular, as a means of showing the normal baseline from which maritime jurisdictional claims are measured. The lower the low-water line selected, the ‘further down the beach’ and thus the further seaward the normal baseline will lie. The impact of selecting a lower vertical datum on the extent of maritime claims tends to be limited, however, unless there is a significant tidal range or the coastline in question shelves particularly gently. Where the gradient on a coastline is especially shallow, however, minor changes in the choice of vertical datum may result in dramatic horizontal shifts in the location of the low water line, especially where this effects the status of particularly low lying insular formations such as low-tide elevations, which can, in turn, have significant impacts in terms of the limits of maritime claims.82 Normal baselines and the legal and technical issues relating to them are clearly relevant to islands and the maritime jurisdictional claims that may be advanced from them. Just as 82 For example, Dorst and Elema note that a change in depth of “a few decimetres” can result in changes in baseline position horizontally of several kilometres. See, Dorst, L. and Elema, I., “The Effects of Changing Baselines on the Limits of the Netherlands in the North Sea”, paper presented on 17 October 2008 at the Advisory Board on the Law of the Sea (ABLOS) Conference on Difficulties in Implementing the Provisions of LOSC, 15-17 October 2008, Monaco, at p.6. Available at, <http://www.gmat.unsw.edu.au/ablos/ABLOS08Folder/ablos08_papers.htm>. See also, Prescott and Schofield, 2005: 94-97. 35 for parts of the mainland coast, islands, by default, will possess normal baselines comprising the low-water line along the coast as marked on officially recognized charts, consistent with Article 5 of LOSC. The choice of a particular vertical datum has the capacity to reclassify a particular insular feature from an island to a low-tide elevation, or to a permanently sub-surface feature. For example Belgium and France opted for a different vertical datum in the construction of their charts. Belgium’s chosen vertical datum (mean low-water spring tides) was, consequently, approximately 30 centimetres higher than that of France (lowest astronomical tide, LAT). This led to a feature, the Banc Breedt, qualifying as a low-tide elevation and being illustrated as such on the French chart but being a sub-surface feature according to the Belgian chart. As this (potential) insular feature lay close to the terminus of the two States’ land boundary on the coast a dispute ensued as to whether the Banc Breedt was a valid basepoint for the delimitation of the territorial sea between these neighbouring States.83 The significance of this is that different types of insular features have radically differing capacities to generate maritime claims to jurisdiction. For example, while an island may, in accordance with LOSC Article 121(2), generate a full suite of maritime zones in an identical fashion to mainland coasts, a low-tide elevation, as provided by Article 13, may be used as a territorial sea basepoint, but only if it falls wholly or partially within the breadth of the territorial sea measured from the normal baseline of a State’s mainland or island coasts. A low-tide elevation’s value for maritime jurisdictional claims is therefore geographically restricted to coastal locations (see Chapter 3.6).84 83 See, Charney and Alexander, 1993: 1,891-1,900. See also, Carleton and Schofield, 2001: 23-24. 84 See, Carleton and Schofield, 2001: 38. 36 Straight Baselines Where certain geographical circumstances exist, international law allows States to depart from the application of normal baselines and measure maritime jurisdictional zones from straight baselines drawn along selected parts of their coastlines. The provisions on straight baselines contained in Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone were in large part inspired by the ruling of the International Court of Justice (ICJ) in the Anglo-Norwegian Fisheries case.85 As early as 1935, Norway established a series of straight baselines joining the outer points of islands and rocks fringing part of its northern coastline from which it measured its 4nm-breadth exclusive fisheries zone (see Figure 2.2). Enforcement of this fisheries zone resulted in several British fishing vessels being detained.86 This situation led to the United Kingdom and Norway seeking a ruling on the legitimacy of Norway’s straight baselines from the ICJ with the two governments agreed to institute proceedings before the ICJ in 1949.87 In finding in favour of Norway, and confirming the validity of the Norwegian straight baseline system, the Court stipulated that: 85 Anglo-Norwegian Fisheries Case  ICJ Reports, 116 (hereinafter, Anglo-Norwegian Fisheries Case). 86 Kapoor, D.C. and Kerr, A.J. A Guide to Maritime Boundary Delimitation, (Toronto: Carswell, 1986): 33-34. 87 Anglo-Norwegian Fisheries Case: 6. 37 Figure 2.2: Norway’s Straight Baselines Source: Adapted from Carleton and Schofield, 2001: 30. Where a coast is deeply indented and cut into, as is that of Eastern Finnmark, or where it is bordered by an archipelago such as the “skajærgaard” along the western sector of the coast here in question, the base-line becomes independent of the low-water mark and can only be determined by means of geometric 38 construction. In such circumstances the line of the low-water mark can no longer be put forward as a rule requiring the coastline to be followed in all its sinuosities. Nor can one characterize as exceptions to the rule the very many derogations which would be necessitated by such a rugged coast: the rule would disappear under the exceptions. Such a coast, viewed as a whole, calls for the application of a different method; that is, the method of base-lines which, within reasonable limits, may depart from the physical line of the coast.88 The Court went on to note some “basic considerations inherent in the nature of the territorial sea” and, in particular, “the close dependence of the territorial sea on the land domain” such that, while a coastal State “must be allowed the latitude to be able to adapt its delimitation to practical needs and local requirements”:89 …the drawing of baselines must not depart in any appreciable extent from the general direction of the coast.90 This ruling was highly influential on the drafting of Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone. Subsequently, the provisions of Article 4 were largely retained as Article 7 of LOSC. However, Article 7 also provides guidance in relation to baselines on highly unstable coastlines and allows for the possibility of using low-tide elevations without lighthouses as basepoints in a straight baseline system so long as such lines have acquired general international recognition – provisions absent from Article 4. These provisions allow States to depart from the application of the normal baseline and measure maritime jurisdictional zones from straight baselines drawn along selected parts of their coastlines.91 However, they are designed to deal with particularly complex coastal 88 Ibid.: 16-18. 89 Ibid.: 20-21. 90 Ibid.: 21. 91 See, for example, Prescott and Schofield, 2005: 137-164. 39 geography where the configuration of the coastline is such that using “highly irregular”92 normal baselines would result in similarly irregular maritime limits such as, for example, a complex mosaic of enclaves or pockets of non-territorial sea areas within a State’s territorial sea.93 Pursuant to LOSC Article 7(1), straight baselines may be applied 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.” This represents the key paragraph of the Article – providing when straight baselines are permitted. That is, either as a result of the presence of a deeply indented or cut into coastline or a fringe of islands along the relevant coast. The remainder of the article can be viewed as being dependent on this first paragraph, providing guidance on how straight baselines are to be defined but not offering justifications for the construction of straight baselines independently of paragraph 1 of the Article. For example, Article 7(2) allows the drawing of straight baselines “where because of the presence of a delta and other natural conditions, the coastline is highly unstable.” However, Article 7(2) does not create a third justification for the drawing of straight baselines in addition to the two laid out in Article 7(1) (namely a deeply indented or cut into coastline or a fringe of islands). Article 7(3) provides that “[t]he drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently linked to the land 92 TALOS Manual, 2006: Chapter 4, p.6. 93 United Nations, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea, (New York: Office for Ocean Affairs and the Law of the Sea, United Nations, 1989). 40 domain to be subject to the regime of internal waters.94 Article 7(4) also stipulates that straight 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 except in instances where the drawing of baselines to and from such elevations has received general international recognition.” Furthermore, Article 7(5) allows for account to be taken of “economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.” In an analogous manner to that outlined above, however, Article 7(5) in isolation does not justify the drawing of straight baselines in the absence of a deeply indented or cut into coastline or the existence of a fringe of islands along the coast. Finally, Article 7(6) states that a system of straight baselines may not be applied by a coastal State “in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.”95 The provisions of Article 7 of LOSC give rise to several queries, as definitions for the key terms are not provided. In particular it is unclear how many and how deep the indentations need to be to constitute a “deeply indented and cut into” coastline, how many and how close the islands need to be to one another in order to form a “fringe” of islands and at how far offshore such a fringe of islands may be and still fulfil the requirement that they be in the coastline’s “immediate vicinity.” Moreover, what is meant by the term “highly unstable” and by what means is the “general direction” of the coastline to be determined and what angle represents divergence to an “appreciable extent” from that direction. Article 7 similarly fails to provide any specific rule for determining 94 See, Prescott and Schofield, 2005: 154-156. 95 For a more detailed discussion of these issues see, Prescott and Schofield, 2005: 142-159. 41 whether the sea area enclosed by a particular straight baseline system is “sufficiently closely linked to the land to be considered subject to the regime of internal waters” and is also silent with respect to how economic interests peculiar to a particular region are to be assessed or what period of time equates to “long-usage” of such areas by the coastal State. The United States in particular has been a keen advocate of a conservative or restrictive interpretation of Article 7, even going so far as to publish its own guidelines on the proper application of Article 7 of LOSC.96 The difficulty here is that as the terms of Article 7 are ambiguous and open to interpretation, it is hard to assert with absolute confidence that a particular system of straight baselines is necessarily excessive. With regard to the role of islands in the construction of systems of straight baselines, it is clear that islands often play a crucial role, especially where a fringe of islands is being used as the justification for a system of straight baselines in accordance with LOSC, Article 7(1).97 It is also clear that islands have all too frequently been misused, with non- 96 See, United States Department of State, “Developing Standard Guidelines for Evaluating Straight Baselines”, Limits in the Seas, No.106, (Washington D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, 31 August 1987). In this context it is worth noting that the objective of the U.S. study was to suggest standard guidelines in order to allow a “reasoned evaluation” of straight baseline systems claimed around the world making it possible to identify “with a certain degree of confidence” those straight baseline systems conforming to international law and those which do not, but that the guidelines, as the study itself states, “do not have international standing as benchmarks against which all such systems should be measured”, and are not offered as “unequivocal yardsticks of the legality of straight baseline systems.” See, Ibid.: 2. Nonetheless, the U.S. guidelines can be regarded as a useful, if arguably conservative, interpretation of the application of Article 7 of LOSC. See also, Roach, J.A. and Smith, R.W., “Straight Baselines: The Need for a Universally Applied Norm”, International Journal of Marine and Coastal Law, Vol.31 (2000): 47-80. 97 On the capacity of rocks and low-tide elevations to serve as basepoints for defining a system of straight baselines see, Lavalle, R., “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, no.1 (2004): 43-69, at 53-54. 42 fringing islands employed to facilitate what are difficult to characterise as anything other than “excessive” straight baseline claims. The guidelines on this issue published by the United States Department of State98 suggest that for islands to be considered part of the fringe of islands along the coast that would justify the construction of a system of straight baselines in accordance with Article 7 of LOSC they should not be more than 24nm apart from one another; that fringing islands should mask at least 50 per cent of the opposite mainland coastline; and that such islands should be no more than 48nm offshore.99 In contrast, the findings of the United Nations committee of experts on baselines issues, published two years after the U.S. study, provide less certain guidance in relation to identifying fringing islands.100 The United Nations study makes it plain that there exists “no uniformly identifiable objective test which will identify for everyone islands which constitute a fringe in the immediate vicinity of the coast” and instead merely recommends that States adhere to the “spirit” of Article 7 of LOSC.101 98 United States Department of State, 1987. 99 Ibid.: 22. The logic underpinning the 24nm and 48nm rules suggested in the U.S. study is that there would be likely to be general agreement that if the area between the islands and mainland were within a State’s territorial sea measured from normal baselines, this would fulfill the “immediate vicinity” requirement in Article 7(1) of LOSC, with the maximum separation distance between mainland and fringing islands of 48nm providing for some flexibility. The U.S. guidelines did, however, also anticipate that there may be exceptions to this rule, for example where: “an island grouping consisting of a number of islands that are not far separated from each other but that, nevertheless, work their way considerably seaward of the mainland coast.” See, Ibid. 100 United Nations, 1989. 101 Ibid.: 20. 43 Regarding the number of islands required to constitute a fringe of islands, the United Nations report suggests, in something of a statement of the obvious, that there must be more than one island involved, while noting that it is “difficult to specify a minimum number.”102 Concerning the requirement in Article 7(1) of LOSC that a fringe of islands be “along the coast”, the United Nations study observes that a chain of islands aligned perpendicularly to the coast would not qualify.103 These conclusions have the virtue of common sense but also hint at the difficulty of ascertaining clear and objective rules for the application of straight baselines from the ambiguous language contained in Article 7 of LOSC. The United Nations study does, however, offer two scenarios, backed by concrete examples, of where a fringe of islands is likely to exist. First, it was suggested that fringing islands may “appear to form a unity with the mainland”, with the case of Norway’s “skjaergaard”, the straight baselines around which, as noted above, had been confirmed as valid by the ICJ in 1951.104 Second, it was stated that fringing islands may exist at some distance from the coast but which, “form a screen which masks a large proportion of the coast from the sea.” In the latter case the islands along Yugoslavia’s (now Croatia’s) coastline from Pula to Sibenik are cited as typifying this sort of fringe.105 As a result of the uncertainties inherent in Article 7, its terms have been interpreted very flexibly, or, arguably, even ignored in practice of many coastal States. Consequently, there has been a proliferation of what, in the view of some States and commentators at 102 Ibid. 103 Ibid. 104 Ibid. 105 Ibid. 44 least, view as “excessive” claims to straight baselines.106 These liberal straight baseline claims have included the use of allegedly fringing islands that are, arguably, far offshore and/or widely dispersed, such that the straight baselines in question are not in the “immediate vicinity” of the coast, and the waters so enclosed cannot genuinely be considered as suitable for the regime of internal waters. In keeping with this policy, the United States routinely protests against any practice that it deems to be excessive or contrary to the provisions of LOSC.107 This trend can be illustrated by reference to three examples drawn from Southeast Asia. The straight baselines claimed by Cambodia, Thailand and Vietnam have all been criticised for utilising islands that are difficult to characterise as fringing and have those enclosed large maritime areas which are likewise hard to realistically view as within the immediate vicinity of the relevant mainland coasts. Cambodia’s straight baselines claim of 1982108 includes a number of small, isolated islands and rocks. It is extremely difficult to argue that these features constitute a fringe of islands or that they are in the immediate vicinity of the coast. Consequently, Cambodia’s straight baseline claim of 1982 gave rise 106 See Prescott and Schofield, 2005: 139-166. See also, Roach and Smith, 1996: 57-161. 107 For an excellent overview of such “excessive” claims, from a US perspective, see, Roach and Smith, 1996: 57-161. 108 Adopted through Council of State Decree dated 13 July 1982. In this legislation Cambodia’s baselines were defined as being “straight baselines, linking the points of the coast and the furthest points of Kampuchea’s [Cambodia’s] furthest islands.” Available online: <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/KHM_1982_Decree. pdf>. It is worth noting that Cambodia had previously claimed straight baselines in 1957 and 1972, which also fronted the entire length of the Cambodian coastline. Upon each revision, the straight baselines have advanced seawards by using islands further offshore. See, Schofield, C.H. and Tan- Mullins, M., “Claims, Conflicts and Cooperation in the Gulf of Thailand”, Ocean Yearbook, 22, (Leiden/Boston: Martinus Nijhoff, 2008): 75-116, at 84-85 and 91-92. See also, Kittichaisaree, 1987: 22. 45 to international protests. 109 Leading commentators have termed Cambodia’s straight baseline claims “a remarkably liberal interpretation of the concepts of fringing islands and enclosed waters linked closely to the land domain”,110 involving a system of straight baselines “patently does not comply with international law.”111 While Thailand’s early straight baseline claims, dating from 1970, 112 have escaped serious criticism,113 the additional set of straight baselines that Thailand defined in 1992, “Area 4”,114 has been protested. The islands which provide the basepoints for Thailand’s Area 4, Ko Kra and Ko Losin, are, in fact, very small isolated rocks,115 distant not only from one another but also from the Thai mainland coast. It is therefore extremely hard to characterise these features as “fringing islands” or to maintain that the waters enclosed within Area 4 are sufficiently closely linked to the land to be considered subject to the regime of internal waters. The United States Department of State analysis of this 109 The United States officially protested against the Cambodian claim in an Assertion of Right in 1986 (Roach and Smith, 1996: 77). Thailand also issued a protest note though it is worth noting that at that time Thailand did not recognize the legitimacy of the government in power in Cambodia and therefore refused to recognise that regime’s declarations, including its maritime claims of 1982. 110 Prescott, 1985: 212-213. 111 Roach and Smith, 1996: 59. 112 The announcement of the Prime Minister’s Office concerning straight baselines and internal waters of Thailand was published in the Official Gazette, Special Volume 87, Chapter 52, 12 June 1970, available online: <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/THA_1970_Announc ement.pdf>. Thailand also has a claim to historic bay status for the Bight of Thailand (the northern part of the Gulf of Thailand), dating from 1959. See, Thailand, Royal Gazette, 22 September 1959. See also Schofield and Tan-Mullins, 2008: 90-91. 113 See, United Sates Department of State, Straight Baselines: Thailand, LIS no. 31, (Washington, D.C.: Bureau of Intelligence and Research, 24 March 1971): 5 and 8. See also, Schofield and Tan- Mullins, 2008: 87-88. 114 UN Law of the Sea Bulletin 25 (June 1994): 82–84. Available online: <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/THA_1992_Announc ement.pdf>. 115 Ko Kra is the more substantial of the two at 161 m (530 ft) elevation but both are small features with no human habitation and no man-made structures other than light beacons. Ko Losin in contrast is 1.5 m (5 ft) high and steep-to all round. 46 extension to Thailand’s claimed straight baselines stated categorically that “clearly this is an excessive maritime claim.”116 For its part, Vietnam’s straight baselines, claimed in 1977, 117 and implemented in 1982,118 involve the use of islands which are small, scattered and largely distant from the mainland coast. A highly critical assessment of Vietnam’s straight baselines by the United States Department of State highlights the fact that the islands used as basepoints for defining Vietnam’s straight baselines system are, on average, 39.4nm offshore and up to 80.7nm offshore, and that the internal waters claimed total approximately 27,000 nm2 (93,000 km2).119 In light of this, characterising these features as a fringe of islands in the immediate vicinity of the coast can be considered to be highly problematic. Accordingly, Vietnam’s straight baselines claims have been subject to protests from the United States 120 and Thailand.121 116 U.S. Department of State, Straight Baseline Claim: Thailand, Limits in the Seas, no. 122 (Washington, D.C.: Bureau of Oceans and International Environmental and Scientific Affairs, 8 September 2000), p. 9. 117 Through Vietnam’s Statement on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf of 12 May 1977. Available online: <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/VNM_1977_Stateme nt.pdf>. 118 Declaration on Baseline of Territorial Waters of 12 November 1982. Available online: <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/VNM_1982_Stateme nt.pdf>. 119 United States Department of State, “Straight Baselines: Vietnam”, Limits in the Seas, no. 99, (Washington D.C.: Bureau of Intelligence and Research, 12 December 1983): 5-6. 120 The U.S. note of protest stated that “there is no basis in international law for the system of straight baselines provided in the declaration of November 12, 1982” (Roach and Smith, 1996: 102). 121 The Thai note, dated 9 December 1985, stated that between points 0 and A7, Vietnam’s claimed straight baselines were “at variance with the well-established rules of international law,” referring to both the 1958 and 1982 Conventions, and concluded that: “the Government of Thailand reserves all its rights under international law in relation to the sea areas in question and the airspace above them.” See UN Law of the Sea Bulletin 7 (April 1986): 111. 47 Cambodia, Thailand and Vietnam are, it should be stressed, hardly alone in this type of practice – they merely represent salient examples of the liberal, or excessive, application of Article 7 of LOSC. With respect to the region as a whole it has been observed that, “almost all the states of the Asia-Pacific region have adopted straight baseline systems that are inconsistent with international law.”122 Overall, it has been observed that “the imprecise language [of Article 7] would allow any coastal country, anywhere in the world, to draw straight baselines along its coast.”123 Nonetheless, support for the more conservative view advocated by the United States among others can be found in the ICJ’s decision in the Qatar/Bahrain Case, which stated unequivocally that the method of straight baselines in accordance with Article 7 of LOSC “must be applied restrictively.”124 Rivers Article 9 of LOSC provides that where a river “flows directly into the sea the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks.” Article 9 does not, however, specify a length limit for a baseline closing a river mouth. LOSC is likewise silent on the treatment of islands located in mouth of rivers. 122 Roach and Smith, 2000: 66. 123 Prescott, J.R.V., The Maritime Political Boundaries of the World, (London: Methuen, 1985): 64. See also, Prescott and Schofield, 2005: 162-164. 124 Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) (Merits)  ICJ Rep 40, available at <http://www.icj- cij.org/docket/files/87/7027.pdf>, para. 212 (hereinafter, the Qatar/Bahrain Case). In the context of that case, the Court declined to employ straight or archipelagic baselines to the Bahraini coast, citing Bahrain’s failure to declare archipelagic status and thereafter define a system of archipelagic straight baselines (see Ibid., paras.212-215). 48 Bays LOSC Article 10, is a near verbatim repetition of Article 7 of the Convention on the Territorial Sea and Contiguous Zone of 1958. Article 10(2) states that a bay must be “a well-marked indentation” and “more than a mere curvature of the coast.” These terms are clearly open to flexible interpretation. However, a clear and unambiguous geometric test for legal bay status is also provided. This formula, termed the “semi-circle test”, is detailed in Article 10(3) where it is made explicit that the diameter of the semi-circle to be used to test the validity of a particular bay should be equivalent to the width of the mouth (or mouths) of the bay. Concerning islands in the mouth of bays, Article 10(3) provides that “[w]here, 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.” As this provision does not specify that such islands have to lie directly at the mouth of a particular bay, this gives rise to some ambiguity as to how far removed from the mouth of a bay such islands may in fact be. However, in light of the semi-circle test combined with the 24nm restriction on bay closing lines contained in Article 10(5) of LOSC, this is not considered especially problematic. The latter rule in particular necessarily excludes from consideration any island loosely considered to be in the mouth of a bay being more than 12nm offshore. Article 10(3) of LOSC goes on to state that “[i]slands within an indentation shall be included as if they were part of the water area of the indentation”, though this is only likely to be an issue where the area of the bay is very close to that of the relevant semi- 49 circle. The last paragraph of Article 10, Article 10(6), does, however, provide a notable exception to this robust rule, providing that “the foregoing provisions do not apply to so- called “historic” bays.”125 Ports and Roadsteads Article 11 of LOSC, dealing with ports, provides that “for the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast.” Such harbour works might include features such as a breakwater protecting the mouth of a port, but not connected to the coast. Offshore installations and artificial islands are, however, specifically excluded from consideration as permanent harbour works. These provisions were considered in the Black Sea Case, with regard to the status of the Sulina dyke, which extends seaward from the Romanian coast for 7.5km, and thus the suitability of that feature as a base point for the construction of a provisional equidistance line.126 While the Court observed that the permanent nature of the Sulina dyke had not been questioned, the question was whether 125 A substantial and fascinating scholarly literature exists on the issue of historic bays and historic waters, discussion of which lies beyond the scope of the present work. However, the classic work on this issue is, International Law Commission, Study prepared by the Secretariat, “The Juridical Regime of Historic Waters, including historic bays ”,  Yearbook of the International Law Commission, Vol.II 6 (Document A/CN.4/143). In this context, the United States has taken a restrictive view that: “To meet the international standard for establishing a claim to historic waters, a State must demonstrate its open, effective, long-term, and continuous exercise of authority over the body of water, coupled with acquiescence by foreign States to the exercise of that authority (Roach and Smith, 1996: 31). The United States has also argued that, given the extension of coastal State territorial sea claims to 12nm under LOSC, “no new claim to historic bay or historic waters is needed to meet resource and security interests of the coastal State” (Roach and Smith, 1996: 37). This view is not, however, the only one and there exists a growing literature on this issue. See, for example, McDorman, T.L., “Notes on the Historic Waters Regime and the Bay of Fundy”, pp.701-722 in in Chircop, A., McDorman, T. and Rolston, S. (eds), The Future of Ocean Regime Building: Essays in Tribute to Douglas M. Johnston, (Leiden/Boston: Martinus Nijhoff, 2009). See also, Kaye, S.B., “The South Australian Historic Bays: An Assessment”, Adelaide Law Review, Vol.17, (1995): 269-282, at 271-274. McDorman (2009: 701) terms historic waters “an orphaned offshore international legal regime” on account of the fact that they were left out of both the 1958 Conventions and LOSC. 126 Black Sea Case, para. 130. 50 the dyke could be termed “harbour works” forming “an integral part of the harbour system.”127 The Court noted that “the functions of a dyke are different from those of a port”128 and, ultimately, concluded that “no convincing evidence has been presented that this dyke serves any direct purpose in port activities.”129 Consequently, the landward end of the Sulina dyke where it joins the Romanian mainland, rather than the seaward end of the dyke, was used as a base point for the establishment of a provisional equidistance line.130 LOSC Article 12 repeats the substance of Article 9 of the 1958 Convention on the Territorial Sea and Contiguous Zone and allows “roadsteads normally used for loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea” to be included within the territorial sea. In light of the extension of territorial sea claims allowable under LOSC to 12nm, this Article can be considered of limited utility as most roadsteads will fall within the scope of such extended territorial sea claims.131 Archipelagic Baselines Territorial sea straight baselines are not to be confused with archipelagic straight baselines that are subject to different, and significantly more robust, rules. First, and fundamental to archipelagic State claims to archipelagic baselines and archipelagic waters, Article 47(1) provides that an archipelagic State may draw baselines joining “the outermost points of the 127 Ibid., para.133. 128 Ibid., para.134. The Court made reference to the travaux préparatoires of Article 8 of the 1958 Convention on the Territorial Sea and Contiguous Zone (on which Article 11 of LOSC is based). While it was acknowledged that permanent harbour works were to be regarded as land territory, questions had been raised over whether structures of “excessive length”, for example “a jetty extending several kilometres into the sea” should still be treated in the same way. The Court concluded that “there are grounds for proceeding on a case-by-case basis.” Ibid. 129 Ibid., para.138. 130 Ibid., para.140. 131 Carelton and Schofield, 2001: 46-47. 51 outermost islands and drying reefs of the archipelago.” Five key conditions are then laid down in Article 47: that the claimant State’s “main islands” must be included within the archipelagic baseline system;132 that the ratio of water to land within the baselines must be between 1:1 and 9:1;133 that the length of any single baseline segment must not exceed 125nm; 134 that no more than three per cent of the total number of baseline segments enclosing an archipelago may exceed 100nm;135 and, that such baselines “shall not depart to any appreciable extent from the general configuration of the archipelago.”136 Clearly islands play a crucial role both in defining archipelagos137 and, necessarily, in the construction of 132 LOSC, Article 47(1). This represents the critical test of the validity of a system of archipelagic baselines. The intent of this provision appears to be to exclude both coastal States dominated by a few large islands and those whose islands are particularly dispersed, such as the United Kingdom and Kiribati respectively. For a discussion of how the 1 to 1 and 1 to 9 ratios were arrived at, see Jayewardene, H.W., The Regime of Islands in International Law, (Dordrecht: Martinus Nijhoff, 1990: 145. Article 47(7) provides clarification as to what may be reasonably regarded as water and land in order to aid in the computation of the crucial water to land ratio, providing that for this purpose “land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau.” 133 LOSC, Article 47(1). 134 Ibid., Article 47(2). 135 Ibid. The requirement that under three per cent of baseline segments may exceed 100nm in length appears restrictive. However, it is worth noting that as it is the coastal State that constructs the archipelagic baseline system and as there is no restriction on the number of baselines that an archipelagic State might draw, it is usually possible to adjust the baseline system to overcome the no more than three per cent of baseline segments exceeding 100 nautical miles in length restriction and thus conform to the LOSC requirements. See, United Nations Division for Ocean Affairs and the Law of the Sea, Handbook on the Delimitation of Maritime Boundaries, (New York: United Nations, 2000): 8. 136 For a more detailed analysis of claims to archipelagic baselines and archipelagic waters see, Tsamenyi, M.B., Schofield, C.H. and Milligan, B., ‘Navigation through Archipelagos: Current State Practice’, pp.413-454 in Nordquist, M.H., Koh, T.B. and Moore, J.N. (eds), Freedom of the Seas, Passage Rights and the 1982 Law of the Sea Convention, (The Hague: Martinus Nijhoff, 2008). 137 LOSC, Article 46 defines an “archipelagic State” as “a State constituted wholly by one or more archipelagos and may include other islands” and an “archipelago” as “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.” 52 archipelagic baselines which link the outermost islands and drying reefs of a particular archipelago.138 2.4.2 Potential Impacts on Maritime Jurisdictional claims A key potential consequence of the application of straight baselines is to increase the geographical scope of coastal State maritime claims. This can occur in two key ways. First, such claims can increase, potentially significantly, the area of sea enclosed as internal waters. This is significant because this has potential implications in terms of navigational freedoms through these areas.139 Second, as a direct consequence of the baselines for measuring maritime jurisdictional zones being shifted seawards, the area of such zones may be increased and this will necessarily decrease the total area where coastal and non-coastal States share authority and use through the high seas and deep seabed regimes.140 In this context, however, it is important not to overstate the case. First and foremost, the unilateral claims of a particular coastal State will not necessarily be accepted and thus be binding upon other States. It is also worth acknowledging that the islands often used as turning points in the construction of the straight baselines system are capable of 138 LOSC, Article 47(1). 139 Internal waters form an integral part of the territory of the coastal State. Consequently, there is no right of overflight for foreign aircraft, no foreign fishing or other resource extraction rights and no right to conduct marine scientific research without the coastal State’s permission. There is also no right of passage for foreign vessels, except where areas of internal waters which had not previously been considered as such, and had previously been used for international navigation, exist as a result of the establishment of a straight baseline system. In such waters a right of innocent passage is retained. See, LOSC, Article 8. 140 Myres S. McDougal and William T. Burke, The Public Order of the Oceans – A Contemporary International Law of the Sea, (New Haven: New Haven Press, 1987): 316. 53 generating claims to maritime jurisdiction in their own right.141 Thus, with respect to territorial sea claims, for example, the coastal State will ‘only’ gain additional territorial sea measured from straight baselines beyond 12nm from valid normal baselines, as illustrated on Figure 2.3. It is also the case that liberal or excessive claims to straight baselines do not necessarily translate into impressive gains with respect to the continental shelf or EEZ. This is, again, because the islands that often provide the anchoring basepoints for baseline systems can themselves constitute normal basepoints along their low-water lines142 and because of the geometric reality that the greater the breadth of the maritime zone being measured, the fewer the basepoints will be required such that the impact of straight baselines is likely to be reduced further offshore. Additionally, the reality for many coastal States is that the proximity of maritime neighbours and the configuration of relevant coastlines means that 200nm maritime jurisdictional claims tend to converge and overlap well before the 200nm limit is achieved. Rather than having a potential impact on such limits, therefore, straight baselines may instead have a role to play in maritime boundary delimitation.143 141 See, Lavalle, 2004: 57-64. 142 However, this in itself raises the issue of whether the features in question can themselves be considered to be islands capable of generating claims to continental shelf and EEZ rights in accordance with LOSC Article 121(2) or whether they are, in fact, “rocks” incapable of generating such claims, in line with Article 121(3) (see Chapter 3). 143 See, Prescott and Schofield, 2005: 156-157. 54 Figure 2.3: Additional Maritime Areas Gained as a Result of the Application of Straight Baselines Source: Adapted from Bateman and Schofield, 2008. Caution is, however, required when discussing the potential impact of straight baselines on the delimitation of maritime boundaries. Straight baselines will not necessarily have an impact on the course of a maritime boundary line. As straight baselines are unilaterally defined by States, they are not binding on other States. The use, or otherwise, of straight baselines in the delimitation of a maritime boundary is therefore not automatic. The consent of neighbouring State(s) is required for their application and this is often a subject of 55 negotiation.144 For example, in their 1997 maritime boundary agreement in the Gulf of Thailand,145 Thailand and Vietnam delimited a boundary line utilising the normal baselines of islands, 146 rather than the extensive, and arguably excessive, systems of straight baselines claimed by each State (see above). In the Black Sea Case, the ICJ addressed this issue in the context of the selection of basepoints for the construction of a provisional equidistance line between Romania and Ukraine. The Court observed that: …the issue of determining the baseline for the purpose of measuring the breadth of the continental shelf and the exclusive economic zone and the issue of identifying base points for drawing an equidistance/median line for the purpose of delimiting the continental shelf and the exclusive economic zone between adjacent/opposite States are two different issues.147 The Court went on to state that in the first of these scenarios, it was up to the coastal State to determine the relevant base points, in conformity with the provisions of LOSC, including Article 7.148 In the context of a maritime boundary delimitation between two or more States, however, the Court asserted that “it should not base itself solely on the 144 Antunes, N.M., Towards the Conceptualisation of Maritime Delimitation: Legal and Technical Aspects of a Political Process, (Leiden: Martinus Nijhoff, 2003): 300-301. Antunes (2009: 301) notes that “taking into account the bilateral nature of delimitation, since straight baselines stem from unilateral decisions of states, their use vis-à-vis other states depends on consent” and backs this interpretation up by reference to the Libya/Malta Case, the Guinea/Guinea-Bissau Arbitration, the Eritrea/Yemen Arbitration and the Qatar/Bahrain Case (Ibid.: 300-301). 145 Agreement between the Government of the Kingdom of Thailand and the Government of the Socialist Republic of Vietnam on the Delimitation of the Maritime Boundaries between the Two Countries in the Gulf of Thailand, August 1997 (entry into force: 27 February 1998), available at, <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/THA- VNM1997MB.PDF>. See also, See, Charney and Smith, 2002 : 2,692–2,694. 146 Thao, N.H., “Vietnam’s First Maritime Boundary Agreement”, Boundary and Security Bulletin Vol.5, no. 3 (Autumn 1997): 74–78, at 75-77. See also, Schofield and Tan-Mullins, 2008: 98-101. An appraisal of this delimitation using Caris LOTS (see Chapter 1.4) confirms this interpretation. 147 Black Sea Case, para.137. 148 Ibid. The provisions of LOSC that the Court noted that States should determine base points in conformity with were Articles 7, 9, 10, 12 and 15. 56 choice of base points made by one of those parties” and should, instead, “select base points by reference to the physical geography of the relevant coasts.”149 2.5 The Limits of Claims to Maritime Jurisdiction 2.5.1 Spatial Limits A key achievement of LOSC was the definition of clear spatial limits to national claims to maritime jurisdiction, something which had, as noted above, eluded earlier codification efforts. Landward of a coastal State’s baselines lie either its land territory, including the inter- tidal foreshore landward of normal low-water line baselines, or internal waters.150 Under LOSC agreement was reached on 12nm as the maximum extent of the territorial sea.151 LOSC also provides for a contiguous zone out to 24nm from relevant baselines.152 The territorial sea and contiguous zone pre-dated the discussions at UNCLOS III and the 149 Ibid. 150 Internal waters lie landwards of straight baselines (LOSC, Article 7), landward of river closing lines (LOSC, Article 9), bat closing lines (LOSC, Article 10) and within ports (LOSC, Article 11). LOSC Article 8 provides that where internal waters have been created through the construction of a system of straight baselines, “which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.” 151 LOSC, Article 3 provides that every State has the right to establish the breadth of the territorial sea “up to a limit not exceeding 12 nautical miles”, measured from baselines determined in accordance with the Convention. Article 4 further states that the outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.” 152 LOSC, Article 33. The 1958 Convention on the Territorial Sea and Contiguous Zone provided for states to claim a zone contiguous to the territorial sea of up to 12nm breadth. In light of the consensus reached at UNCLOS III that territorial seas could extend out to 12nm, the allowable breadth of the contiguous zone was extended to 24nm. 57 regimes applicable to them were relatively settled. In accordance with LOSC the maximum breadth of these zones was defined. Additionally, and significantly, the concept of the exclusive economic zone (EEZ) gained general international acceptance at UNCLOS III and agreement was reached on the breadth of the EEZ of 200nm (see Figure 2.1). 153 The EEZ regime represented a compromise between competing interests, especially between developing coastal States and the major maritime powers. Long-standing high seas freedoms relating to, for example, navigation and overflight for vessels and aircraft belonging to other States are preserved within EEZs. Simultaneously, coastal States are accorded sovereign rights over the resources off their coasts. One of the key objectives of the EEZ concept was to facilitate enhanced management and conservation of living resources, thereby addressing rising fears over unsustainable fishing mentioned above. It was also widely anticipated that EEZs would (and should) deliver substantial economic gains to developing States. For example in 1984 the United Nations (UN) Food and Agriculture Organisation (FAO) estimated that 90 per cent of marine fish and shellfish were caught within 200nm of the coast.154 The EEZ regime therefore constituted a significant reallocation of resource rights from international to national jurisdiction. Similarly, it was estimated that 87 per cent of the world’s known submarine oil deposits would fall within 200nm-breadth zones 153 LOSC, Article 57 states that: “The exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” As most coastal States claim a 12nm territorial sea the actual breadth of the EEZ is usually 188nm seaward of territorial sea limits. 154 Quoted in Schurman, R. “Tuna Dreams: Resource Nationalism and the Pacific Island’s Tuna Industry” in Development and Change, Vol. 29, 1998, pp. 107-136, at p. 107. 58 of jurisdiction.155 EEZs are therefore crucially important to coastal States, particularly in respect of access to and management of ocean resources. It remains uncertain, however, whether the economic gains anticipated for developing States have, in fact, been realised.156 The outer limits of the above-mentioned zones of maritime jurisdiction were relatively readily accepted at UNCLOS III. Defining the outer limit of the continental shelf proved to be more complex. Continental shelf rights predate LOSC having been prompted primarily by the Truman Proclamation of 1945 and subsequently codified in the Continental Shelf Convention of 1958 (see above). In 1969, the ICJ, through the North Sea Continental Shelf Cases, introduced the concept of “natural prolongation”, stating that coastal States have rights over that part of the continental shelf that constitutes “a natural prolongation of its land territory.” 157 This concept, and the Court’s wording in its Judgment that a coastal State had inherent rights to its adjacent continental shelf, 158 informed the drafting of LOSC.159 Consequently, LOSC provides, at Article 77(3), that 155 Churchill, R. and Lowe, A.. The Law of the Sea, 3rd Edition, (Manchester: Manchester University Press, 1999): 162. 156 Hanich, Q., Schofield, C.H. and Cozens, P., “Oceans of Opportunity?: The Limits of Maritime Claims in the South Pacific”, Chapter in Hanich, Q. and Tsamenyi, M. (eds), Navigating Pacific Fisheries: Legal and Policy Trends in the Implementation of International Fisheries Instruments in the Western and Central Pacific Region, (Wollongong: Ocean Publications, forthcoming 2009). 157 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1967-1969), Judgment of 20 February 1969,  ICJ Reports, 3, at para.101, (hereinafter North Sea Continental Shelf Cases). 158 In the North Sea Continental Shelf Cases, the ICJ stated in explicit terms that: “the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist, ipso facto and ab initio, by virtue of its sovereignty over the land” and that “In short here there is an inherent right.” See, North Sea Continental Shelf Cases, para.19. 159 The rights and duties of coastal States in relation to the continental shelf are detailed in Part VI of LOSC. 59 continental shelf rights are inherent and “do not depend on occupation, effective or notional, or on any express proclamation.” The definition of the continental shelf under the 1958 Convention on the Continental Shelf was based on exploitability and thus open-ended.160 In contrast, Article 76(1) of LOSC establishes that the continental shelf of a coastal State consists of “the seabed and subsoil of submarine areas”, extending to a distance of 200nm from relevant baselines. Thus, in accordance with the EEZ concept, codified through LOSC, every coastal State has the right to claim sovereign rights over both the seabed and water column out to 200nm, regardless of whether the continental margin actually extends that distance offshore and providing that there are no overlapping claims with neighbouring States.161 Article 76(1) goes on to provide an alternative to the 200nm limit applicable to coastal States positioned on broad continental margins whereby the continental shelf is defined as extending, “throughout the natural prolongation of its land territory to the outer edge of the continental margin”. Article 76(1), therefore, allows coastal States to assert their sovereign rights over those parts of the continental shelf forming part of their natural prolongation but located beyond their 200nm EEZ limit.162 These areas of continental 160 Article 1 of the Convention on the Continental Shelf of 1958 defined the continental shelf as “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 to a depth beyond that limit where exploitation of resources was possible”. 161 These rights are, however, governed in accordance with Part VI (dealing with the continental shelf) of the Convention rather than Part V (dealing with the EEZ). 162 While no sure figure can be determined until all outer continental shelf submissions have been considered by the CLCS, it has been estimated that outer continental shelf areas may encompass around five per cent of the ocean floor. See, Cook, P.J. and Carleton, C.M. (eds.), Continental Shelf Limits (Oxford: Oxford University Press, 2000): 3. 60 shelf beyond the 200nm limit are frequently referred to as the “outer” or “extended” continental shelf.163 Article 76 of LOSC goes on to lay down a complex series of formulae through which the coastal State can establish the outer limit of its continental shelf, seaward of the 200nm limit. Essentially, Article 76 provides two formulae according to which coastal States can establish the existence of a continental margin beyond the 200 nm limit which forms part of the State’s natural prolongation164 and two maximum constraints, or ‘cut-off’ lines (see Figure 2.4). 165 Article 76(6) also contains specific, though potentially problematic, provisions concerning how the constraint lines mentioned above are to be applied to submarine ridges and analogous features which have been termed “a masterpiece of ambiguity.”166 Furthermore, Article 76 provides that the coastal State is to define the outer limits of its continental shelf where it extends beyond 200nm from its baselines “by straight lines not exceeding 60 nautical miles in length, connecting fixed points defined by coordinates of latitude and longitude.”167 163 The term “extended” continental shelf gives a somewhat misleading impression that coastal States are somehow extending or advancing claims to “additional” areas of continental shelf. This is not the case as the sovereign rights enjoyed by the coastal State over the continental shelf are, as discussed above, inherent. 164 These are either the “Gardiner Line”, based on reference to depth or thickness of sedimentary rocks overlying the continental crust, or the “Hedberg Line” which uses a distance formula of 60nm. Both entitlement formulae are measured from the foot of the continental slope which is defined as the point of maximum change in gradient at the base of the continental slope (unless there is “evidence to the contrary”). See, LOSC, Article 76(4)(b). Whichever of the formulae is most advantageous to the coastal State may be used. 165 Either a distance of 350nm from relevant baselines or 100 nautical miles from the 2,500 metre isobath. See, LOSC, Article 76(5). 166 Prescott and Schofield, 2005: 197. 167 LOSC, Article 76(7); See also, Cook and Carleton, 2000. All the straight lines and distances referred to in the Convention are geodesics, that is, straight lines on the surface of a mathematical model (reference ellipsoid) of the Earth. 61 In order to establish the outer limits of its continental shelf in accordance with Article 76, a coastal State is required to gather information related to the morphology of its continental margin as well as its geological characteristics and make a submission to a specialised United Nations body, the Commission on the Limits of the Continental Shelf (CLCS), established under LOSC.168 Although complex, the point here is that Article 76 of LOSC provides for a definable outer limit to the continental shelf claims of coastal States and this represents a major step forward as compared to the indeterminate scenario under the 1958 Convention on the Continental Shelf.169 This is not, however, to suggest that the process of preparing a submission to the CLCS, the Commission’s consideration of it and the subsequent fixing of final and binding outer continental shelf limits is anything but complex, expensive and potentially fraught with uncertainties and ambiguities.170 168 The Commission is a body consisting of 21 scientists. Importantly, the Commission is not a legal body and it does not therefore adjudicate on submissions. Instead, the CLCS plays, or was intended to play, a technical role, evaluating whether coastal States through their submissions have fulfilled the requirements of Article 76. On the basis of this assessment the CLCS makes” recommendations” to the coastal State on the basis of which the coastal State can establish limits that are “final and binding” (LOSC, Article 76(8)). Coastal States making such submissions are not claiming outer continental shelf areas as such. As noted above, coastal State rights over the continental shelf are inherent. The submissions made to the CLCS concern the outer limits of the continental shelf beyond the 200nm limit rather than outer continental shelf areas per se. 169 McDorman has stated that the fact that “the real achievement” of LOSC lies not in the complexity of the provisions of Article 76 or in the establishment of the Commission but in the fact that it provides for “a definable limit” to continental shelf claims “however difficult the defining of that limit may be”. See, McDorman, T.L. “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 17, no. 3 (2002): 301-324, at 307. 170 Indeed, considerable debates have arisen over the interpretation of Article 76 of LOSC and the work and practice of the Commission. See, for example, McDorman, Ibid.; 62 Figure 2.4: Schematic of the Continental Shelf Showing Outer Continental Shelf Entitlement and Constraint Lines Source: Adapted from Schofield and Arsana, 2009: 79. The international zones beyond national jurisdiction comprise the high seas171 seaward of the 200nm EEZ limits of coastal States and the “Area”, beyond the continental shelf appertaining to coastal States.172 2.5.2 Consequences for the Division of the Oceans The vast majority of coastal States have proved to be enthusiastic claimants in terms of maritime jurisdictional zones.173 Overall, these claims have proved to be in conformity 171 Governed under Part VII (Articles 86-121) of LOSC. 172 Governed under Part XI (Articles 133-191) of LOSC. See also, the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, available at, <http://www.un.org/Depts/los/convention_agreements/convention_overview_part_xi.htm>. As a consequence of the rights of certain coastal States to areas of outer continental shelf, the extent of the Area is necessarily less than that of the high seas. 63 with international norms. Most coastal States claim territorial seas of 12nm breadth and 200nm EEZs. The maritime political map of the world is, therefore, relatively stable, at least in terms of the geographic scope of maritime claims, with relatively few “excessive” claims in terms of their breadth remaining as many past claims that were not in accordance with the terms of LOSC have been “rolled back.”174 Although the assertions being made by coastal States located on broad continental margins to outer continental shelf rights beyond 200nm from their coasts could arguably could present a challenge to this order, in practice it appears that coastal States are working within and abiding by the mechanism established under LOSC.175 It has been estimated that, should every coastal State make national maritime jurisdictional claims out to 200nm (as is the case), these claims would encompass 43 million square nautical miles (147 million square kilometres) of maritime space. This amounts to approximately 41 per cent of the area of the oceans or 29 per cent of the Earth’s surface. The extent of the area subject to jurisdictional claims out to 200nm is 173 See Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, Table of Claims to Maritime Jurisdiction (2008) available at <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_cl aims.pdf>. 174 See, Roach and Smith, 1996. Whilst most “excessive” territorial sea claims have been “rolled back” to the international norm of 12nm, a number of coastal States retain claims to 200nm territorial seas (Benin, Congo (Brazzaville), Ecuador, Peru and Somalia). Additionally, Togo maintains a claim to a 30nm territorial sea. Most of these claims date from the period when extended zones of jurisdiction were developing and thus reflect the aspirations of coastal States at that time for extended jurisdiction over offshore resources. In some cases these anachronistic claims are preserved for historical reasons (notably Ecuador and Peru) and in others because of major developmental and governance problems in the states concerned (for example, Somalia). 175 This is demonstrated by the response of coastal States to the deadline applicable to many them, 13 May 2009. The deadline stimulated a flurry of submissions to the CLCS – from 11 submissions having been lodged a year prior to the deadline, at the time of writing, immediately subsequent to the deadline’s passing, a total of 51 submissions have been lodged with the Commission, together with 43 submissions of preliminary information. Clearly, coastal States have taken the deadline seriously and are working within the framework established under LOSC. For details of these submissions see the website of the Commission, available at, <http://www.un.org/Depts/los/clcs_new>. 64 thus approximately equivalent to the area of land territory on the surface of the Earth.176 Additionally, it has been estimated that claims to continental shelf extending beyond 200nm from the coast may encompass a further five per cent of the world ocean.177 2.5.3 Continuing Jurisdictional Creep As noted above, the maritime political map of the world is relative stable with regard to the spatial extent of maritime jurisdictional claims and LOSC can be regarded as a triumph in this regard. Nonetheless, the issue of “creeping coastal jurisdiction” remains. Contemporary oceans governance challenges include: resource depletion; protecting and preserving the marine environment; illegal, unreported and unregulated (IUU) fishing; biodiversity preservation on the high seas; and, maritime security in the face of threats such as piracy and armed robbery against shipping and the proliferation of weapons of mass destruction by sea. While the breadth of coastal State claims has to a large extent been constrained and contained by the framework established under LOSC, States have nonetheless sought to secure additional rights within their national zones and, increasingly, in areas beyond national jurisdiction. Such additional national jurisdictional rights over maritime spaces are often claimed on maritime security and environmental grounds. With regard to the former concern, it has been noted that there exists a temptation for States to use the 200nm EEZ limit as the basis for boarding rights, justified on the basis of contemporary security threats such as maritime terrorism, leading to “further territorialisation of the 176 Symonds, P.A. Senior Adviser – Law of the Sea at Geoscience Australia (personal communication, July 2008); and, Prescott and Schofield, 2005: 9. 177 Cook and Carleton 2000: 3. 65 EEZ.”178 An example of this type of practice is provided by Iran’s 1993 Marine Areas Act, through which Iran claims the right to establish “safety zones” around artificial structures such as oil platforms, to control the laying of submarine pipelines and cables and to control over “any kind of research” within the EEZ.179 The United States has protested against all of these provisions in the Iranian legislation. The United States has also objected to Iran’s interpretation of the regime of innocent passage and prohibition on military activities of foreign states within its EEZ.180 Iran is, however, by no means alone in making these types of claims to jurisdiction, often largely based on the security interests of the States in question.181 It has further been observed that coastal States have been keen to assert additional controls offshore on environmental grounds, for instance in respect of the transport of hazardous materials182 and in the wake of the loss of the Prestige oil tanker off the north- western coast of Spain and the resulting oil pollution along those shores, in November 2002. 183 This represents a significant challenge to the delicate balance of rights, responsibilities and freedoms contained in LOSC and thus a threat to the stable oceans regime vital to ensuring the freedom of navigation necessary for global trade. 178 See, Oxman, 2006: 840-843, at 842. See also, Roach and Smith, 1996: 409-421. 179 United States Department of State, Iran’s Maritime Claims, Limits in the Seas, No.114, (Washington D.C.: Office of the Geographer, Bureau of Intelligence and Research, 16 March 1994): 26-33. 180 Ibid.: 38-39. 181 For example, in the Indian Ocean, Bangladesh, Burma, India, Mauritius, Pakistan, Sri Lanka, the Seychelles and the UAE all make claims to jurisdiction within their maritime zones that are analogous to Iran’s claims and are similarly arguably contrary to the terms of LOSC (Roach and Smith, 1996: 172, 186-192 and 203-208). 182 Ibid.: 421-423. 183 Oxman, 2006: 843-849, at 847-848. 66 2.6 The Importance of Islands As demonstrated above, baselines, especially normal baselines, are important to the definition of islands and islands are often vital components in the construction of other types of baselines, notably fringing islands in the context of straight baselines, islands in the mouth of bays for bay closing lines and islands as the constituent parts of an archipelago in respect of archipelagic baselines. Islands are, consequently, important in that they provide the basis for claims to maritime jurisdiction. Disputes have arisen in relation to islands in two main ways: sovereignty disputes over islands themselves, their land territories and their related maritime spaces; and disputes concerned with the maritime jurisdictional claims associated with islands and the role of particular insular features in the bilateral delimitation of maritime boundaries. These factors are, however, often inextricably entangled with the potential role of islands in delimitation and the generation of claims to maritime jurisdiction can itself be a key factor influencing and informing any dispute over sovereignty. With regard to the former category of disputes, the global scope and significance of the problem is emphasised by reference Table 2.1, which provides an overview of sovereignty disputes over island territories worldwide. 184 Many of these sovereignty disputes involve possession of a handful of remote, barren, small and often uninhabited islands, rocks, low-tide elevations and reefs. Nonetheless, such features have the capacity 184 See also, Prescott and Schofield, 2005: 265-284. 67 to prompt fierce diplomatic exchanges between States, sour bilateral relations and, in rare instances, even act as the trigger for military confrontation.185 In this context, the underlying historical and geopolitical dimensions of disputes over islands are also often crucial. Despite the considerable impacts and influences of globalisation, sovereignty and territory remain powerful forces and States are inextricably linked to their territory. Any potential loss of claimed territory, however slight, can therefore be construed as a threat to a state’s sovereignty, security and integrity, especially for domestic political audiences and gain. Profound reserves of patriotism and nationalism are consequently often invested in boundary and territorial disputes. Furthermore, disputes should be seen in their overall context, including the history of relations between the parties. The territory at stake may well be insignificant, but the dispute may often represent a useful pressure point and, in reality, merely represents a symptom of an already strained or traditionally antagonistic relationship.186 It is also frequently the case that the State in possession of the disputed feature(s), denies the existence of the dispute on historical grounds, asserting that its sovereignty over the 185 Perhaps the most noteworthy military conflict over islands is that between Argentina and the United Kingdom over the Falkland Islands (Islas Malvinas) and South Georgia. Argentina’s occupation of the disputed islands in 1982 resulted in a conflict which cost the lives of 655 Argentine and 236 British troops. See, for example, Armstrong, P and Forbes, V., The Falkland Islands and their Adjacent Maritime Area, Maritime Briefing, Volume 2, No. 3, (Durham: International Boundaries Research Unit, 1997): 4-12. Similarly, in the “Battle of Fiery Cross Reef” between China and Vietnam in March 1988. In this engagement over possession of one of the disputed Spratly Islands 75 Vietnamese personnel were reported to have lost their lives and three Vietnamese ships were set ablaze. Chinese casulties were reported to be slight. See, Dzurek, D.J., The Spratly Islands: Who’s On First?, Maritime Briefing, Vol.2, no.1, (Durham: International Boundaries Research Unit, 1996), at 23. 186 Greece and Turkey’s 1996 confrontation over the small islets of Imia (to Greece) or Kardak Rocks (to Turkey) can be seen in this light. See, Pratt, M.A. and Schofield, C.H., “The Imia/Kardak Rocks Dispute in the Aegean Sea”, Boundary and Security Bulletin, Vol.4, No.1 (Spring 1996): 62-69. 68 disputed feature is “indisputable” and established “from time immemorial”, such that there is nothing to discuss.187 States have, however, proved capable of resolving sovereignty disputes over islands. A growing number of disputes over island sovereignty have been settled in recent years, often through resort to international arbitration or the ICJ. The dispute between Eritrea and Yemen concerning the sovereignty over the Hanish Islands was resolved through international arbitration tribunal decisions in 1998 and 1999.188 The dispute over the Hawar Islands between Bahrain and Qatar was ruled on by the International Court of Justice in 2001.189 Indonesia and Malaysia’s dispute over the Sipadan and Ligitan Islands was also resolved through an ICJ decision of 2002 (See Table 2.1, see also Chapter 4).190 This was followed by the ICJ’s decision in the sovereignty dispute between Malaysia and Singapore over Pulau Batu Puteh/Pedra Branca in 2008.191 A further sovereignty dispute 187 For example, this type of language has frequently been used in the context of the South China Sea islands disputes. Most recently, in response to submissions to the CLCS by Vietnam and jointly by Malaysia and Vietnam, China issued a protest note in which it stated that it had “indisputable sovereignty over the islands in the South China Sea.” Vietnam responded with a diplomatic note of its own stating that it had “indisputable sovereignty” over both the Paracel (Hoang Sa) and Spratly (Truong Sa) Islands. See, Note from the Permanent Mission of the People’s Republic of China addressed to the Secretary General of the United Nations, CML/17/2009, 7 May 2009, available at, <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm>; and, Note from the Permanent Mission of the Socialist Republic of Vietnam to the United Nations addressed to the Secretary General of the United Nations, 86/HC-2009, <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm>. 188 Arbitration between Eritrea and Yemen, Award of the Arbitral Tribunal in the First Stage (Territorial Sovereignty and Scope of Dispute) of 9 October 1988 and Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), Award of 17 December 1999, both awards available at, <http://www.pca-cpa.org/showpage.asp?pag_id=1160>. 189 See, the Qatar/Bahrain Case. 190 Case concerning Sovereignty over Pulau Sipadan and Pulau Ligitan (Indonesia/Malaysia), Judgment, of 17 December 2002, available at <http://www.icj-cij.org/docket/files/102/7714.pdf> (hereafter the Pulau Sipadan and Pulau Ligitan Case). 191 Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, available at <www.icj- cij.org/docket/files/130/14492.pdf> (hereinafter, the Pedra Branca Case). 69 involving islands is, at the time of writing also subject to a case before the ICJ.192 It can be anticipated that island sovereignty disputes will be subject to third-party dispute resolution proceedings in the future. In respect of the disputes concerning the maritime jurisdictional zones associated with islands, crucially, Article 121(2) of LOSC provides that islands, in an identical fashion to mainland coasts, are capable of generating a full suite of maritime zones: …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. Consequently, even small islands potentially have the capacity to generate huge claims to maritime jurisdictional zones with significant resource/security implications. Critically, if an island had no maritime neighbours within 400nm, it could generate 125,664 sq.nm [431,014km2] of territorial sea, EEZ and continental shelf rights (see Figure 2.5). In contrast, if deemed a mere “rock” incapable of generating EEZ and continental shelf rights, a territorial sea of 452 sq. nautical miles (1,550km2) could be claimed.193 192 The case between Nicaragua and Colombia concerning the islands and cays of San Andres and Provedencia in the western Caribbean Sea. See, Territorial and Maritime Dispute (Nicaragua v. Colombia), at <http://www.icj- cij.org/docket/index.php?p1=3&p2=1&code=nicol&case=124&k=e2>. 193 It is worth emphasising here that “rocks” within the meaning of LOSC, Article 121(3) are still islands, merely a disadvantaged sub-category of island. It should be noted that these theoretical calculations assume that the island or rock in question has no area. As such features inevitably comprise some territory and therefore area, the potential maritime claims that can be generated from them are likely to be greater. 70 Figure 2.5: Maritime Jurisdictional Claims from Islands Source: Author’s research. The vexed issue of distinguishing between what might be termed “fully fledged” islands capable of generating a full suite of maritime jurisdictional claims and mere “rocks” which cannot is explored in Chapter 3. However, the potential capacity of insular features to act as basepoints for the claiming of extensive maritime zones goes a long way to explaining both the significance attached to islands and the rise in the number of international disputes involving islands. This is primarily because of the marine resource, both living194 and non-living195 that are, or, importantly, are perceived to be, present 194 Notably, but not exclusively, fisheries which continues to play a significant food security role for many coastal States (despite increasing rates of stock depletion). Other living resource opportunities include those derived from marine genetic resources. For example, it has been estimated that marine biotechnology related products were estimated to be worth US$100 billion in 2000 alone. See, Arico, S. and Salpin, C., “Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects”, UNU-IAS Report, (United Nations University, 2005): 17. 71 within the maritime areas that can be claimed from islands. Additionally, disputes concerning and control over certain islands have strategic and security dimensions.196 2.7 Conclusions The question of where the land ends and the sea begins has been addressed. The numerous types of baselines, including a variety of straight-line types baselines, available to coastal States under LOSC have been reviewed. Coastal States have proved keen to adopt systems of straight baselines along their coasts and islands are often crucial components of these claims, which are frequently justified on the basis of the alleged presence of a “fringe of islands” in accordance with Article 7(1) of LOSC. This practice has led to the (mis)use of islands in straight baseline claims that are difficult to characterise as anything other than excessive, especially when set against the spirit of Article 7 rather than its admittedly ambiguous provisions. 195 Traditionally, seabed hydrocarbon resources (oil and natural gas). It is notable in this context that offshore energy resources are becoming increasingly important: it has been estimated that around 60 per cent of global oil production now comes from offshore exploitation operations. See, “Offshore oil and gas around the World”, Ministry of Energy, Mines and Petroleum Resources, Government of British Columbia, available at, <http://www.empr.gov.bc.ca/OG/offshoreoilandgas/Pages/OffshoreOilandGasAroundtheWorld.as px>. 196 For example, the proximity of the contested Spratly Islands in the South China Sea to a strategic waterway of global significance, providing the key maritime link between the Indian Ocean and East Asia, is often cited as an example of this consideration. See, for example, Emmers, R., Maritime Disputes in the South China Sea: Strategic and Diplomatic Status Quo, (Institute for Defence and Strategic Studies (IISS) Working Paper No. 87, Singapore, September 2005): 7-9. It is also the case that disputes over islands frequently give rise to overlapping maritime claims and this jurisdiction uncertainty may have implications for maritime security, undermining maritime security enforcement efforts. This is a potentially problematic issue given global dependence on sea-borne trade: over 80 per cent of world trade by volume being transported by sea. See, United Nations Conference on Trade and Development (UNCTAD), Review of Maritime Transport 2008, (Geneva: UNCTAD, 2008): xiii and 5. 72 The significance of this issue should not be over-emphasised, however. Despite enthusiasm on the part of coastal States for straight baselines, the vast majority of coastal State baselines are comprised of normal, low-water line baselines. It is also important to note that islands themselves possess normal baselines and are capable of generating claims to maritime jurisdiction in their own right. A critical issue in this regard is the classification of islands and other insular features (see Chapter 3) and their role in the delimitation of maritime boundaries (see Chapter 4). The relationship between normal baselines, islands and claims to maritime jurisdiction is also explored with particular reference to the threat of sea level rise in Chapter 5. The development of the international law of the sea and the extension of national claims to maritime space has also been explored, as well as the nature of maritime claims to jurisdiction and the linkage between States and their territory, sovereignty and, in the offshore context, sovereign rights. The enduring significance of international boundaries, including maritime boundaries has also been highlighted. The existence of disputes involving islands has been noted and assessed, both regarding sovereignty over islands and in respect of the maritime claims associated with them, as well as their potential role in the delimitation of maritime boundaries. The crucial role of islands in generating broad maritime jurisdictional claims has been emphasised. This sets the scene for an analysis of the regime of islands in international law in Chapter 3. 73 Table 2.1: Sovereignty Disputes over Islands Disputants Arctic and Atlantic Island Disputes 1. Hans Island Canada – Denmark (Greenland) 2. Machias Seal Island Canada – USA 3. The Corisco Bay Islands Equatorial Guinea – Gabon 4. The Falkland Islands/Las Malvinas Argentina – UK Mediterranean Island Disputes 5. Perejil/Leila Island, Penon de Vélez de la Gomera, Penon de Alhucema, and the Chafarinas Islands Morocco – Spain 6. Imia/Kardak Rocks Greece – Turkey Caribbean Island Disputes 7. Sampodilla Cay Belize – Honduras 8. Navassa Island Haiti – USA 9. San Andres y Providencia Colombia – Nicaragua Indian Ocean Island Disputes 10. Bassas da India, Europa Island, the Glorioso Islands and Juan de Nova Island France – Madagascar 11. Tromelin Island France – Mauritius 12. Diego Garcia and the Chagos Archipelago Mauritius – UK 13. Mayotte Island Comoro Islands – France 14. Abu Musa and the Tunbs Iran – UAE 15. South Talpatty/New Moore Island Bangladesh – India Pacific Island Disputes 16. Matthew and Hunter Islands France – Vanuatu 17. The Spratly Islands (Nansha/Truong Sa Brunei197 – China – Malaysia – Islands) Philippines – Taiwan – Vietnam 18. The Paracel Islands (Xisha Islands/Hoang Sa Archipelago) China – Vietnam 19. The Senkaku/Diaoyu Islands China – Japan – Taiwan 20. The Liancourt Rocks (Takeshima/ Tok Do) Japan – South Korea 21. The Kuril Islands/Northern Territories Japan – Russia Recently resolved island sovereignty disputes: Hanish Islands (Eritrea – Yemen, arbitration tribunal decision) Farasan Islands (Saudi Arabia – Yemen, negotiated boundary treaty) Qaru & Umm al Maradim (Kuwait – Saudi Arabia, negotiated boundary treaty) Hawar Islands (Bahrain – Qatar, ICJ case) Sipadan & Ligitan Islands (Indonesia – Malaysia, ICJ case) Pulau Batu Puteh/Pedra Branca (Malaysia – Singapore, ICJ case). 197 Arguably Brunei does not claim any of the South China Sea islands. However, one insular feature, a low-tide elevation called Louisa Reef, does fall within what Brunei considers to be its continental shelf area in the South China Sea. 74 CHAPTER 3 The Regime of Islands under International Law of the Sea 3.1 The Regime of Islands under International Law The question of the definition of “islands” and their treatment in the context of the delimitation of maritime boundaries is a complex and crucially important one for many coastal States. This chapter explores the international legal regime of islands, particularly as outlined in Article 121 of LOSC: 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, 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. A key consideration in this context is the issue of distinguishing between types of insular features, especially what constitutes an “island” capable of extended maritime claims (EEZ and continental shelf) versus a “rock” which cannot generate such claims, in international law of the sea terms is therefore considered. This distinction is important since, while islands can generate the full suite of maritime jurisdictional zones provided for under LOSC – that is, a 12nm territorial sea, 24nm contiguous zone, 200nm EEZ and 75 continental shelf rights that may extend beyond the 200nm limit – rocks are only entitled to a 12nm territorial sea and 24nm contiguous zone (see Figures 2.1 and 2.5).198 The chapter begins by analysing the text of Article 121, supported by reference to its drafting history of this article of the Convention. The remainder of the chapter assesses sources of clarification in the interpretation of Article 121. Relevant State practice is assessed, particularly that of national legislation on islands and insular status. Additionally, the relevant jurisprudence of international (and, where appropriate, national) courts and tribunals is explored. In this context it is recognised that State practice is diverse and often contradictory. Furthermore, for their part, international courts and tribunals have been reluctant to deliver a definitive and authoritative interpretation of Article 121 – even when the opportunity has presented itself. However, there are some exceptions to this trend, which give rise to prospects for clarification. 3.1.1 Historical Development of the Regime of Islands The international legal definition of and regime of islands first arose as an issue in the course of the failed Hague Codification Conference of 1930 (see Chapter 2.3.3).199 In the course of these discussions, a distinction was drawn between permanent elevations of the seabed which were to be disqualified from the definition of islands and low-tide elevations which were to be denied a territorial sea in their own right but which were potentially valid basepoints for measuring its breadth.200 The draft definition of islands 198 In accordance with Article 121(3) of LOSC. 199 Jayewardene, 1990: 3. 200 Ibid.: 4 76 read as follows: “An island is an area of land, surrounded by water, which is permanently above the high-water mark.”201 The issue was taken up in the 1950s by the International Law Commission (ILC) with the draft definition of 1930 used as a basis for discussions.202 It was suggested that the words “normal circumstances” be inserted before “permanently above the high-tide mark” in order to address exceptional situations where an insular feature might be wholly inundated. During UNCLOS I, the United States proposed alternative wording excluding the reference to normal circumstances.203 This was accepted and became the basis for the first paragraph of Article 10 of the 1958 Convention on the Territorial Sea and Contiguous Zone (see below). With regard to the maritime zonal entitlements of islands, the usage of islands in territorial sea claims meant that, by the time of the 1930 Hague Codification Conference, the suggestion that each island should possess its own territorial sea was uncontroversial.204 The ILC accepted the capacity of islands to generate maritime claims and this position was also accepted during UNCLOS I. Article 10 of the Convention on the Territorial Sea and Contiguous Zone of 1958 reads as follows: 201 Report of the Second Commission (Territorial Waters) of the Hague Codification Conference, Report of Sub-Committee II. See, Report of the Second Commission, L.N. Doc. C.230, M.117, 1930 V., at 13, cited in Ibid.: 4. 202 Ibid. 203 Ibid.: 4-5. 204 Ibid.: 9-12. In particular Jayewardene cites a series of nineteenth century legal decisions, including the 1805 case of the Anna where the British High Court of the Admiralty ruled that an American ship captured by a British privateer within three miles of permanently visible mud islands but five miles from the Mississippi mainland coast had taken place in the territorial sea of the United States. 77 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. The territorial sea of an island is measured in accordance with the provisions of these articles.205 The regime of islands under LOSC retains much of the language in the above article, but, as noted above, distinguishes between islands and rocks. LOSC also includes provisions relating to low-tide elevations (Article 13) and artificial islands (Article 60(7-8)) (see below). 3.2 Defining Islands When the text of paragraph 1 of Article 121 is analysed in detail, it is clear that four key requirements for a feature to qualify legally as an island are identified: an island must be “naturally formed”, be an “area of land”, be “surrounded by water” and must also be “above water at high tide.” 3.2.1 Naturally Formed The “naturally formed” requirement clearly serves to disqualify artificial ‘islands’ such as platforms constructed for example on submerged shoals, low-tide elevations or reefs. This provision reinforces the terms of LOSC, Article 60(8) which provides in explicit terms that artificial islands, together with artificial installations and structures “do not 205 Convention on the Territorial Sea and Contiguous Zone, Article 10. 78 possess the status of islands,” and “have no territorial sea of their own.” Artificial islands are also specifically excluded from affecting maritime boundary delimitation.206 Artificial island-building activities on the part of States, keen to enhance their claims to maritime space by creating ‘new’ islands are at variance with LOSC. This apparently clear-cut international legal situation has not prevented certain coastal States from advancing claims from such features. In the South China Sea, for example, many pseudo- islands, which even include fully submerged seamounts, have been subject to ‘island- building’ activities including the erection of above-surface structures and have also been fortified and garrisoned in order to help bolster the occupier’s claim. This activity is at variance with international law, at least as far as altering the insular status of these features is concerned. Indeed, it has been reported that in the South China Sea, both China and Taiwan claim the Macclesfield Banks as islands capable of generating maritime claims to jurisdiction, despite the fact that the features in question lie between 7 and 82 meters below sea level.207 States have sought to preserve the insular status of certain naturally formed but unstable or erosion-threatened insular features either by reclamation efforts, whereby the vulnerable feature is in effect ‘built up’, or through coastal engineering measures, including the construction of sea walls and defences, designed to protect the insular 206 LOSC, Article 60(5) does, however, provide that safety zones of not more than 500 metres may be declared around such artificial islands or installations. 207 See, Dzurek, 1996: 54. See also, Schofield, C.H., “Dangerous Ground – A Geopolitical Overview of the South China Sea”, pp.7-25 in Bateman, S. And Emmers, R. (eds) Security and International Politics in the South China Sea: Towards a Co-operative Management Regime, (London: Routledge, 2009a): 14. 79 feature. Perhaps the most remarkable example of this is by Japan in respect of its southernmost territory, Okinotorishima (Oki-no-Tori Shima). In excess of US$200 million reportedly has been spent in order to construct sea defences, vertically higher than the islets themselves, which form a 360 degree ring around each of the threatened features (see below).208 Coastal engineering measures, analogous to those of Japan to preserve Okinotorishima, are dealt with in more detail below and in Chapter 5. 3.2.2 Area of Land The requirement that an island be composed of “an area of land” would seem, at first glance, to be self-evident. However, in certain circumstances this aspect of insular definition can be problematic and open to dispute. An example is that of Dinkum Sands, a formation lying off the Alaskan Arctic Ocean coast. Composed of alternating layers of sea ice and gravel, the dispute over the feature between the Alaskan state authorities and the U.S. Federal government turned on whether that part of the formation’s vertical height made up of ice could be counted when testing the feature against the “above water at high-tide” provision.209 Similarly, the status of small features claimed as islands but actually being no more than sand bars subject to cyclical erosion and deposition has been questioned. The case of Aves Island/Bird Rock, which has influenced maritime boundary 208 Brown et al., writing in 1991, put the estimated cost of the project at £135 million. See, Brown, J., Colling, A., Park, D., Phillips, J., Rotehery, D. and Wright, J., Case Studies in Oceanography and Marine Affairs, (Oxford: Pergamon Press, 1991): 84-85. Silverstein, quoting Japanese sources, states that the three year project, starting in 1988, was set to cost US$240 million. See, Silverstein , A.L., “Okinotorishima: Artificial Preservation of a Speck of Sovereignty”, Brooklyn Journal of International Law, Vol. XVI (1990), 2: 409-431, at 410. Tisdall put the figure at US$250 million. See, Tisdall, S. “China aims for US to hit rock bottom in Asia”, The Guardian, 8 April 2005. 209 See, Symmons, C.R., When is an ‘Island’ Not an ‘Island’ in International Law? The Riddle of Dinkum Sands in the Case of US v. Alaska, Maritime Briefing, Volume 2, no.6, (Durham: International Boundaries Research Unit, 1999). See also, No. 84 (Original) Supreme Court of the United States (March 1996) (Report of the Special Master). 80 delimitation between its claimant, Venezuela, and the Caribbean territories of France, the Netherlands and the United States represents a good example of this phenomenon (see below). 3.2.3 Surrounded by Water The “surrounded by water” requirement may also be regarded as self-evident. If a feature is linked to the mainland coast by, for example, a sandbar, to such an extent that it may be considered an integral part of the mainland coast, then it follows that that feature takes on the characteristics of the mainland coast. As such, the feature would have a baseline and thus be capable of generating claims to the full suite of maritime zones, just as it would do as a full-fledged island. 3.2.4 Above High Tide A particular feature’s relationship to the tidal level is vital in distinguishing between islands (above high-tide), low-tide elevations (above low-tide but submerged at high-tide) and non-insular features (submerged at low-tide). This classification will, in turn have an impact on the capacity of a particular feature to generate claims to maritime jurisdiction (see below).210 This question is directly linked to the choice of vertical tidal datum used to determine what represents the high and low tidal levels. No universally accepted vertical tidal datum is in use, however – leaving the choice to the coastal State and thus providing potential scope for dispute (see Chapter 2.4.1).211 210 Carleton and Schofield, 2001: 38. 211 Ibid., at 21-25. See also, Antunes, N.S.M., The importance of the tidal datum in the definition of maritime limits and boundaries, Maritime Briefing, 2, 7 (International Boundaries Research Unit, Durham, 2000). 81 Uncertainty has also been raised over whether a feature would have to be permanently above water. For example, conditions of highest high water, such as the highest astronomical tide, allied to exceptional meteorological conditions such as a storm surge could lead to a feature, usually above water at high tide, being occasionally overtopped.212 However, there has been a suggestion that the high-tide line on charts officially recognised by the coastal State could be used.213 This suggestion would provide for analogous treatment of the high-water line as for the low-water line as provided in accordance with LOSC, Article 5. 214 This approach would allow for the occasional inundation of an insular feature in exceptional circumstances. 3.3 Rocks Article 121(3) of LOSC states that: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Rocks are islands, since they are defined as part of Article 121 dealing with the regime of islands, but are a disadvantaged sub-category of islands whose zone-generative capacity, and thus value to a potential claimant, is significantly reduced. 212 Prescott and Schofield, 2005: 59-60. See also Symmons, C.R., The Maritime Zones of Islands in International Law, (Martinus Nijhoff, The Hague, 1979): 43. In this context Symmons has highlighted the fact that the drafting history of the 1958 Convention on the Territorial Sea and Contiguous Zone shows that it was suggested that an island should be defined as “…an area of land, surrounded by water, which in normal circumstances is permanently above high water.” This wording was omitted at the suggestion of the United States because of a perceived conflict between the phrase “in normal circumstances” and “permanently” above water in the definition of an island. See Symmons, 1979: 10 and 43. 213 See Beazley, P.B., Maritime limits and baselines: a guide to their delineation, (The Hydrographic Society, Special Publication No.2, 3rd edition, 1987). 214 Article 5 of LOSC reads: “Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognised by the coastal State.” See Chapter 2. 82 As previously noted, if an island deemed capable of generating EEZ and continental shelf claims had no maritime neighbours within 400 nautical miles, it could generate enormous maritime jurisdictional claims.215 In contrast, if a feature were deemed a mere “rock” incapable of generating EEZ and continental shelf rights, its maritime jurisdictional zone generative capacity is severely restricted. 216 Not surprisingly, almost all States with offshore islands have taken the position that their islands are capable of generating an EEZ and a continental shelf. 3.4 Interpreting Article 121 Article 121 is open to varied and conflicting interpretations, especially in respect of the critical distinction between islands capable of generating claims to EEZ and continental shelf rights and rocks incapable of generating such extensive claims. Where the terms of a treaty are ambiguous or obscure, guidance on interpretation can be sought through supplementary means, notably the preparatory work (the travaux préparatoires) that lead up to the conclusion of the treaty.217 Reference to this preparatory work can assist in discerning the intent of the drafters in respect of particular articles or provisions of the treaty. 215 Amounting to 125,664 square nautical miles (431,014km2) of territorial sea, EEZ, and continental shelf rights. 216 Essentially amounting to a territorial sea of 452 square nautical miles (1,550km2). Prescott and Schofield, 2005, at 248-249. 217 Vienna Convention on the Law of Treaties, Article 32. As previously noted, this article notes that supplementary means of interpretation may be used where the meaning of treaty terms is unclear and this may include “the preparatory work of the treaty and the circumstances of its conclusion.” 83 3.4.1 The Drafting History of Article 121 Unfortunately, reference to the drafting history of Article 121 of the Convention provides little assistance in ascertaining the intent of the drafters. Examination of the travaux préparatoires provides only an insight into the diversity of views that the issue of islands provoked.218 While some States were keen to minimise the impact of small islands on claims to maritime jurisdiction, others had an interest in maximising maritime jurisdictional claims from such insular features. 3.4.2 Does Size Matter? The geographical area of the insular feature in question has been a prominent theme in the discussions on the means by which islands capable of generating claims to a full suite of maritime claims could be distinguished from insular features incapable of such extensive claims. Arguments in this vein were evident in the run up to and during the drafting of Article 10 of the 1958 Convention on the Territorial Sea and Contiguous Zone.219 Many commentators and States proposed that there should be some size limit coupled with the definition of what constitutes an island, so as to prevent a small, isolated “mere pin-prick of rock”, even if permanently above water, from generating disproportionately expansive maritime claims.220 In the end, however, no size criterion was included in the 1958 Convention on the Territorial Sea and Contiguous Zone. 218 See, United Nations, United Nations Conferences on the Law of the Sea, Official Records, Third Conference, (Buffalo, New York: William s. Hein & Co., 1980, reprinted 2000). See also, United Nations, 1988; and, Nandan and Rosenne, 1995: 321-339. 219 See Jayewardene, 1990: 4-5. 220 See, Johnson (1951) ‘Artificial Islands’, International Law Quarterly, 4. Quoted in Symmons, 1979: 37. 84 In the early sessions of UNCLOS III the issue of island size as a basis for differentiating the maritime entitlements of islands was again raised. 221 Of particular note, Malta presented draft articles which distinguished between “islands” and “islets” on the basis of size. While both islands and islets were defined as a “naturally formed area of land”, the former were to be “more than one square kilometre in area” and the latter “less than one square kilometre in area”.222 According to the Maltese proposal, maritime claims from islands “less than 10 square kilometre in area” were to be restricted and a special convention was to be drafted in respect of the maritime claims of other, larger, islands “taking into account all relevant circumstances.”223 Ireland also made a proposal that islands should possess at least 10 per cent of the land area and 10 per cent of the population of the State.224 A group of 14 African States similarly suggested that the maritime spaces of islands should be determined “according to equitable principles taking into account all relevant factors and circumstances” including island size, island population (or lack of), “contiguity to the principal territory”, whether the island was “situated on the continental shelf of another territory”, and the feature’s geological and geomorphological structure and configuration. 225 Romania also made proposals, concerning both size and habitability. Romania suggested a new category of insular feature – “islets and small islands”.226 According to the Romanian view, such features being “uninhabited and without economic life, which are situated on the continental shelf 221 See, Nandan and Rosenne, 1995: 321-339, at 328. On the legislative history of Article 121, see also, United Nations, 1988. 222 UN Doc.A/AC.138/SC.II/L.28, Article 1. See, Nandan and Rosenne, 1995: 328. 223 UN Doc.A/AC.138/SC.II/L.28, Articles 9, 11 and 15. See, Nandan and Rosenne, 1995: 328-329. 224 UN Doc.A/CONF.62/C.2/L.43 (1974). 225 UN Doc.A/AC.138/SC.II/L.40. See, Nandan and Rosenne, 1995: 329-330. The 14 States were Algeria, Cameroon, Ghana, Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal, Sierra Leone, Somalia, Sudan, Tunisia and Tanzania (Nandan and Rosenne, 1995: 329-330). 226 UN Doc.A/AC.138/SC.II/L.53. See, Nandan and Rosenne, 1995: 330. 85 of the coast, do not possess any of the shelf or other marine space of the same nature.”227 Romania’s proposals, similar to those of Malta and the aforementioned African States were aimed at denying or restricting small insular features from the maritime zones to be accorded to “true” islands. An attempt to tackle the problem of defining islands by size was undertaken by Robert Hodgson, the Geographer at the United States Department of State. His 1973 Research Study, Islands: Normal and Special Circumstances, included a categorisation of islands as follows: 1. rocks, less than .001 square mile in area; 2. islets, between .001 and 1 square mile; 3. isles, greater than 1 square mile but not more than 1,000 square miles; and, 4. islands, larger than 1,000 square miles.228 Contrary views were, however, also prominent. For example, the representative of Greece reacted to the above-mentioned Maltese proposal by observing that: …the regime of islands could not be legally based on criteria of size, population, geographical location or geological configuration without jeopardising the principles of sovereign equality and the integrity of territorial sovereignty.229 Greece proposed draft articles that, while repeating the familiar formula that an island was “a naturally formed area of land surrounded by water which is above water at high tide”, emphasised that islands form “an integral part of the territory of the State to which it belongs”, that the territorial sea applicable to an island was to be determined in the same manner as for continental parts of the State and that with regard to the continental 227 Ibid. 228 Hodgson, R., Islands: Normal and Special Circumstances, (Washington D.C.:U.S. Department of State, Bureau of Intelligence and Research, Research Study, 1973). 229 UN Doc.A/AC.138/SC.II/L.29. See, Nandan and Rosenne, 1995: 329. 86 shelf and the zones of national jurisdiction claimable from continental parts of the State, such claims “are as a general rule applicable to islands.”230 Regarding the breadth and limits of the territorial sea, a proposal by China echoed that of Greece, stating that these were “in principle, applicable to the islands belonging to [a] State.”231 Turkey suggested that the existence of islands should be a consideration in the delimitation of the continental shelf between opposite and adjacent States, which led Greece to essentially restate its position.232 The trend towards linking island definition with size and habitability was also counteracted by several delegations at UNCLOS III keen to preserve the status quo. Some States argued on principle that no distinctions of any kind should be made so long as an island was above water at high tide, arguing that it would not be possible to define a set of criteria for small islands or islets which could be applied to every geographical situation without producing an inequitable result in some cases. As the United Kingdom delegate pointed out: ...there was an immense diversity of island situations, ranging from large and populous islands of even larger continental states to small islands with self- sufficient populations, and that, inter alia, the attempt by some delegations to categorise islands in terms of size would not result in any generally applicable rules which would be equitable in all cases; and there was grave danger of discounting many islands of both absolute and relative importance.233 Similarly, small island States argued that given their limited land resources, they should be entitled to an EEZ around all of their islands, irrespective of their size and 230 The Greek proposal did further state that these provisions were “without prejudice to the regime of archipelagic islands.” Ibid. 231 Ibid. 232 Nandan and Rosenne, 1995: 329: 331-332. 233 Symmons, 1979: 40. 87 characteristics. A proposal made by four Pacific island States sought to ensure that the maritime entitlements of islands were to be determined “in accordance with the provisions of the Convention applicable to other land territory” but without prejudice to the question of the delimitation of maritime boundaries or the regime of archipelagos.234 3.4.3 Conflicting National Interests A particularly telling feature of the debates on the question of islands at UNCLOS III was that many of the key contributors had specific national concerns relating not only to the potential capacity of small islands to generate extensive claims to maritime jurisdiction, but the potential impact of such features on the delimitation of maritime boundaries.235 Thus, some coastal States, notably Romania, Turkey and Denmark, were keen to minimise the effect of islands because it served their particular circumstances; while other States, in possession of such features, were keen to maximise potential claims from them. Romania was concerned about the potential role of Ostrov Zmeinyy (Serpents or Snake Island), a small island (or islet) belonging to Ukraine, located approximately 19nm off the mainland coast, on the delimitation of bilateral maritime boundaries in the Black Sea (for more on the Black Sea ICJ Case see below, see also Figure 4.2).236 Similarly, Turkey had a clear interest in attempting to restrict potential claims generated by islands in the Aegean – the vast majority of which are under Greek sovereignty.237 Denmark meanwhile wanted to safeguard its own maritime claims from the Faeroe Islands, whilst 234 UN Doc.A/CONF.62/C.2/L.30. See, Nandan and Rosenne, 1995: 331. 235 Beckman, R. and Schofield, C.H., ‘Moving Beyond Disputes over Island Sovereignty: ICJ Decision Sets Stage for Maritime Boundary Delimitation in the Singapore Strait’, Ocean Development and International Law, Volume 40 (2009): 1-35, at 9-10. 236 Prescott and Schofield, 2005: 65-68. 237 Ibid., at 68-70. 88 simultaneously restricting the United Kingdom’s potential claims from Rockall in the northeast Atlantic Ocean.238 In contrast, Greece was determined to protect the capacity of its numerous islands to generate maritime zones. Similarly, Venezuela was anxious to ensure that small insular features retained their ability to generate extended maritime jurisdictional zones in order to preserve its claims related to Aves Island (Bird Rock) in the eastern Caribbean Sea.239 3.3.4 A Case of Intentional Ambiguity? What became the final text of Article 121 was proposed at the third session of UNCLOS III in 1975.240 In the course of formal and informal consultations, it was decided that the scope of the draft article should be narrowed and any provisions on islands held by colonial powers241 or on the effect of islands on the delimitation of maritime zones excluded. The latter issue remained a major concern for many States in view of their particular geographical circumstances and national interests. The observation by Ireland that: “[I]t is generally agreed that offshore islands should not be used as the base point for measuring an equidistance boundary line in all circumstances,” represented a reasonable reflection of the discussions on the issue. 242 The issue of the role of islands in 238 Ibid., at 70-72. 239 Ibid., at 72-75. If strict equidistance lines are constructed around Aves Island, the area so enclosed has been calculated at 19,270nm2. See, Bradley, R.E., Pratt, M.A. and Schofield, C.H., Jane’s Exclusive Economic Zones 2000-2001, (Coulsdon: Jane’s Information Group, 2000), at 331. 240 Article 132 of the Informal Single Negotiating Text of 1975 proposed by Reynaldo Galindo Pohl, of El Salvador, Chairman of the Second Committee of UNCLOS III at the time. See, United Nations, 1980 (A/CONF.62/WP8/Part II). See also, Nandan and Rosenne, 1995: 335. 241 The issue of “islands under colonial dependence or foreign domination or control” was raised by Trinidad and Tobago (Prescott and Schofield, 2005: 335) and reflected concerns on the part of many newly independent developing States over the remaining colonial territories of former colonial powers, including far flung and often small island possessions. 242 This Irish comment forming part of an explanatory note accompanying a draft article on the delimitation of the continental shelf. Ibid.: 332 89 delimitation of maritime boundaries was separated from the definition of the regime of islands and was left up to coastal States to resolve politically as they settled their own maritime boundaries (see Chapter 4). Paragraph one of the 1975 draft text incorporated the text of Article 10 of the 1958 Convention on the Territorial Sea and Contiguous Zone verbatim. Paragraph two restated the principle that the maritime zones of islands were to be determined in the same manner as for other land territory. The problematic third paragraph appears to have been adapted, at least in part, from Romania’s proposals regarding islets and small islands.243 The 1975 draft text essentially remained unchanged through subsequent negotiating documents, though this was not for lack of trying. A variety of amendments were proposed, including proposals to delete the third paragraph of the draft article entirely,244 and others to provide that the marine zones of islands be limited if they constituted a source of distortion or inequity in the delimitation of maritime boundaries.245 Some delegations pointed out that paragraph 3 was ambiguous and would give rise to problems.246 Romania was perhaps the most persistent party, notwithstanding the fact that Article 121(3) is at least partially based on a Romanian proposal. At the eleventh session of UNCLOS III in 1982 Romania proposed adding a fourth paragraph to the draft text: “Uninhabited islets should not have any effects on the maritime spaces belonging to the 243 Ibid.: 335. 244 As suggested by the United Kingdom during the eleventh session of UNCLOS III but strongly opposed by Turkey among others. Prescott and Schofield, 2005: 70. 245 Ibid.: 336-338. 246 Ibid.: 330-336, Beckman and Schofield, 2009: 10. 90 main coasts of the States concerned.”247 Romania explained that this suggestion was intended to “prevent any State from encroaching on the maritime zones of another State by invoking the existence of uninhabited islands in the delimitation area.”248 All of the proposed amendments to the then draft Article 121 were rejected and the regime of islands emerged without any arbitrary size criteria for defining islands, including the disadvantaged sub-category of islands, “rocks” (see below).249 The status quo therefore prevailed and the ambiguous 1958 definition remained intact and was incorporated into Article 121 of LOSC. There is little doubt that the wording of Article 121, in particular paragraph three, was intentionally ambiguous. In essence Article 121 is composed of lowest common- denominator language to which States holding widely divergent views could assent. The wording is designed to be capable of multiple interpretations. Nonetheless, the spirit and intent of Article 121 is clear – to restrict excessive or disproportionate maritime claims from small and remote insular features. 247 Nandan and Rosenne, 1995: 337. 248 Ibid.: 337-338. Counsel for Ukraine in the Black Sea Case rather acerbically noted that Romania’s proposal took place at the Eleventh Session of UNCLOS III and “at the eleventh hour”. See, the Black Sea Case, Public sitting held on Friday 12 September 2008, “Romania’s Irrelevant Circumstances: The Black Sea as an enclosed or Semi-enclosed Sea, Delimitation, Agreements therein and the Significance of Serpents’ Island (continued)”, Oral argument on behalf of Ukraine of Ms Loretta Malintoppi, at 18, available at <http://www.icj-cij.org/docket/files/132/14729.pdf>. 249 Nandan and Rosenne, 1995: 330-336; and, Beckman and Schofield, 2009: 10 91 3.3.5 Subsequent Developments All subsequent attempts to define rocks and islands on the basis of criteria such as size or the presence of vegetation have come to nothing, primarily because the terms used in Article 121 in relation to rocks are not only vague but are also contingent on aspects of technology, economics and culture. There is no objective way to distinguish between an island and a rock under the terms of LOSC. It should be remembered, however, that in order to qualify as a rock, the other requirements for insular status laid down elsewhere in Article 121 must first be met, notably the conditions laid out in paragraph one of the Article. Considerable academic ink has been expended over the years, especially among international legal scholars, an effort to narrow and clarify the interpretation and application of Article 121. A number of these eminent legal scholars (plus a few geographers) have reviewed the text of Article 121 of LOSC in detail and teased their way through the entrails of the travaux préparatoires with the objective of seeking guidance in the interpretation and application of Article 121. Among the key issues raised are the questions as to what precisely is meant by the term “rock” and how to determine the capacity of particular insular features to “sustain human habitation or an economic life” of their own. 3.3.6 The Meaning of the Term “Rock” Scholarly debate has focused on the issue of whether “rock” is to be interpreted in its ordinary meaning, that is, as a hard part of the earth’s crust, or the definition broadened to 92 encompass features such as islets, cays, sandbanks and barren islands.250 A review of the relevant literature indicates that no consensus on this issue has been reached. While some writers have reached the definitive conclusion that, in light of the legislative history of Article 121(3), “the term ‘rock’ cannot be given the ordinary meaning of solid (rock) elevations of land areas”;251 others are less convinced. Looking at Romania’s attempt to introduce a fourth paragraph to the text in respect of “uninhabited islands” which were to have no impact on “maritime spaces belonging to the mainland coast,”252 it has been observed that Romania’s need for this proposal suggests that Romania “had no confidence that the term rocks in paragraph 3 of Article 121 included islets.”253 The capacity of insular features to “sustain human habitation” or “an economic life” The other key issues that have generated scholarly discussion concern an insular feature’s capacity to “sustain human habitation” or an “economic life” its own. Unsurprisingly, conflicting views on how these critical phrases should be interpreted have been put forward. 254 Kwiatkowska and Soons observe that an increasing number of writers subscribe to the view that a lighthouse or other aid to navigation built on an island gives the island an “economic life of its own” due to its value to shipping.255 Other writers are 250 See, for example, Kwaitkowska, B. and Soons, A.H.A., “Entitlement to maritime areas of rocks which cannot sustain human habitation or economic life of their own”, Netherlands Yearbook of International Law, XXI (1990): 139-81, and Prescott and Schofield, 2005: 61-75. 251 Kwaitkowska and Soons, 1990: 153. 252 Nandan and Rosenne, 1995: 337. 253 Prescott and Schofield, 2005: 67. 254 See, especially, Charney, J.I., ‘Rocks that cannot sustain human habitation’, American Journal of International Law, 93, 4 (1999): 863-78; Elferink, 1998: 58-68; Kwiatkowska and Soons, 1990; Prescott and Schofield, 2005: 73-79; 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?, San Diego Law Review, 25, 3 (1988): 425-494; and Van Dyke, J.M. and Brooks, R.A., ‘Uninhabited islands: their impact on the ownership of the oceans’ resources’, Ocean Development International Law Journal, 12 (1983): 265-84. 255 Kwiatkowska and Soons, 1990: 167-168. 93 of the view that the phrase “human habitation or economic life of their own” does not exclude islands obtaining external support.256 Others disagree and maintain that the key test of the capacity of an island to sustain “human habitation or economic life of their own” is whether it can sustain, without external support and on the basis of its own natural resources, stable communities of organized groups of human beings.257 More recently, these arguments were explored in the 2009 Black Sea Case between Romania and Ukraine the Judgment. The key questions that arise in the interpretation and application of Article 121 outlined above are impossible to answer based solely on the text of Article 121 and its associated travaux préparatoires. How then is Article 121 to be clarified? 3.5 Clarifying Article 121 3.5.1 Sources of Clarification of the Regime of Islands It is only through the practice of States in their interpretation and application of Article 121 of LOSC that clarity may emerge regarding the provision. International courts and tribunals may also play an important role in such clarification. Thus far, however, State practice and international jurisprudence has been largely unhelpful as both States and international courts and tribunals have proved adept at side-stepping the issue. 256 Ibid. 257 See Van Dyke and Brooks, 1983: 265-300; and, Charney, 1999: 863-878. 94 Nevertheless, in recent years there have been a number of developments in both national legislative practice and pronouncements from international tribunals which may assist in interpreting Article 121. Of particular note in terms of national developments are: the Mexican national legislation concerning the treatment of insular formations; and, the United Kingdom’s “roll-back” of its claims in respect of Rockall. With regard to decisions of international courts and tribunals, the 1978 Anglo-French Arbitration’s treatment of Eddystone Rock bears recounting; aspects of the Jan Mayen Case are relevant; the Volga Case before International Tribunal on the Law of the Sea (ITLOS) is of note; and the ICJ’s recent Judgment in the Black Sea Case. There are also multiple bilateral agreements and cases that have dealt with islands in the context of the delimitation of maritime boundaries. These are considered in Chapter 4. 3.5.2 National Legislation Mexico’s Federal Act relating to the Sea Mexico’s Federal Act relating to the Sea of 8 January 1986 provides for differentiation between types of island and their capacity to generate maritime zones.258 Article 51 of the Act: “Islands shall have an exclusive economic zone; however, rocks that cannot sustain human habitation or economic life of their own shall not.” It is understood from an examination of official mapping of the limits of the Mexican EEZ that all Mexican islands have been treated as being capable of generating continental shelf and EEZ rights with one exception.259 The exception is Roca Alijos – a group of tiny, steep-to volcanic islets located in the Pacific Ocean approximately 162nm (300km) west of Baja California 258 Mexico, Federal Act relating to the Sea, 8 January 1986, available at, <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/MEX_1986_Act.pdf>. 259 Elferink, 1998: 59. See also, Symmons, 1979: 125-126. 95 on the Mexican mainland coast.260 The area of Roca Alijos is reported to be 0.012 square kilometres.261 Mexico has claimed a 12nm territorial sea around Roca Alijos rather than 200nm EEZ rights meaning that, in the Mexican government’s view at least, these features are “rocks” within the meaning of Article 121(3) of LOSC. The Rockall ‘Roll-Back’ With regard to Rockall, this isolated rocky pinnacle lies approximately 163nm off the northwestern coast of Scotland.262 Rockall is reportedly 25.3m (83ft) by 31m (100ft) at its base, giving it an area of 784.3m2. 263 Although sovereignty over the feature is uncontested,264 the United Kingdom’s use of Rockall as a basepoint for defining its 200nm fishery zone limit in 1977 raised protests from Denmark, Iceland and Ireland.265 However, as a prelude to its accession to LOSC in 1997, the United Kingdom declared 260 Roca Alijos is located at 24° 57’ 04 N, 115° 44’ 50 W. See, <http://mapserver.inegi.gob.mx/geografia/espanol/datosgeogra/extterri/frontera.cfm?c=154>. For a mariner’s description of the feature see also, <http://www.425dxn.org/dc3mf/r_al_e.html>. 261 Ibid. 262 The nearest point being located in the St. Kilda island group. MacDonald evocatively highlights Rockall’s prominent role in the BBC’s nightly shipping forecast, “…a nightly tour of the British Isles and its surrounds: a familiar and comforting sea register of sea areas and coastal stations that have come to define the symbolic boundary of a nation”, that, for the land-bound at least, tends to have a “soporific effect” with more the character of poetry than information with a crucial bearing on safety of navigation. See, MacDonald, F., “The last outpost of Empire: Rockall and the Cold War”, The Journal of Historical Geography, 32 (2006): 627-647, at 627-628. 263 Ibid.: 627. Elferink (1998: 59) provides an alternative area for Rockall of 642m2. The maker of the first authenticated landing on Rockall, Captain Basil Hall, noted that “the smallest point of a pencil could scarely give it a place on any map which would not exaggerate its proportions” (quoted inMacDonald, 2006: 631). 264 The United Kingdom annexed Rockall at 10.16am precisely on 17 September 1955. The annexation was effected through the landing of a party from HMS Vidal on Rockall, the erection of a flagstaff and raising of the Union Jack and the reading declaration by First Lieutenant Commander Desmond P.D. Scott of HMS Vidal that: “In the name of her Majesty Queen Elizabeth the Second, I hereby take possession of the island of Rockall.” A commemorative plaque was also emplaced on the summit of Rockall (Ibid.: 638-641).MacDonald argues that the annexation had more to do with securing the north-eastern Atlantic Ocean from the “prying eyes of a rival state” in the context of missile tests and in the Cold War era, than about securing territory (Ibid.: 634-635). 265 Symmons, C.R., “Ireland and the Rockall dispute: an analysis of recent developments” Boundary and Security Bulletin, Volume 6, No.1, (1998): 78-93, at 78. 96 that Rockall was in fact a rock in line with Article 121(3) and thus was not a valid basepoint for its fishery zone. Specifically, it was stated that: “The United Kingdom’s fishery limits will need to be redefined based on St Kilda, since Rockall is not a valid base point for such limits under Article 121(3) of the Convention.” 266 This seems appropriate, as Rockall has been characterised by writers as a classic example of a rock that fails the tests of habitation and economic life.267 Moreover, Rockall was cited as an example of a “rock” in the course of UNCLOS III.268 Not using Rockall as a basepoint for its 200nm claim resulted in a loss to the United Kingdom of around 60,000 square nautical miles of previously claimed fishery zone (see Figure 3.1).269 Rockall merely generates a 12nm territorial sea claim as evidence of its “vestigial insular status in international law.” 270 Rockall remains the sole example, however, of a State voluntarily reclassifying an insular feature and downgrading it from a fully-fledged island to a mere rock and thus reducing the area of its claimed maritime zones. In the course of the recent Black Sea Case, Rockall was referred to by Ukraine as the “paradigm” example of a “rock”: “tiny, barren, isolated and clearly unable to sustain human habitation or an economic life of its own.”271 266 House of Commons (HC) Hansard, Written Answers, 21 July 1997, cols. 397-398. An identical statement was made in the House of Lords a day later on July 22, 1997 (Hansard (HL) Written Answers, 22 July 1997, cols. 155-156. Quoted in Anderson, D.H., ‘British Accession to the UN Convention on the Law of the Sea’ , International and Comparative Law Quarterly, 46 (1997): 761-786, at 778; and Symmons, 1998: at 83. See also, Elferink, 1998: 59. 267 Symmons, 1998: 78 and Prescott and Schofield, 2005: 83. 268 Anderson (1997: 778) writes that “Rockall was cited (in the hearing of the present writer) during the Third Conference on the Law of the Sea as an example of such a rock.” 269 Ibid., at 78-93. The United Kingdom’s 200nm fishery zone limit was instead “rolled-back” to a limit measured from basepoints located on the Outer Hebrides group of islands fringing the Scottish mainland coast. 270 Ibid., at 93. 271 Black Sea Case, Oral argument on behalf of Ukraine of Ms Loretta Malintoppi, 12 September 2008, at 12. 97 Figure 3.1: The United Kingdom’s Rockall ‘Roll-back’ Source: Adapted from Carleton and Schofield, 2001: 59. 3.5.3 Decisions of International Courts and Tribunals Numerous decisions of international courts and tribunals have dealt with the question of the treatment of islands in the context of the delimitation of maritime boundaries. These cases are dealt with in more detail in Chapter 4.5. Few of these decisions touch directly on the legal debates surrounding the interpretation of LOSC, Article 121. However, there 98 are four cases that can be highlighted: the Anglo-French Arbitration;272 the Jan Mayen Case;273 the Volga Case;274 the Pedra Branca Case;275 and, the recently concluded Black Sea Case between Romania and Ukraine.276 The Anglo-French Arbitration The Court of Arbitration established by France and the United Kingdom was tasked with the delimitation of the continental shelf boundary between the two countries through the English Channel westwards of the 30 minutes west meridian to the 1,000 metre isobath. 277 In this context, the Court had the opportunity to address the question of insular status with regard to one key basepoint – Eddystone Rock (see Figure 4.3). As far as the United Kingdom was concerned, Eddystone Rock was an island and was a valid basepoint for the construction of a median line between the opposing British and French coasts. The United Kingdom supported this view noting that Eddystone Rock was above high tide according to the vertical datum used on British Admiralty nautical charting. More specifically, counsel for the United Kingdom stated during oral arguments 272 See, Anglo-French Arbitration. 273 Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway),  ICJ Reports, 38 (hereinafter, Jan Mayen Case). See also, <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=e0&case=78&code=gjm&p3=4>. 274 The “Volga” Case (Russian Federation v. Australia) (Prompt Release) (2002) ITLOS Case No. 11 (hereinafter, the Volga Case). 275 See, the Pedra Branca Case. 276 See, the Black Sea Case. 277 See, as previously noted, Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf, Decision of 30 June 1977, International Legal Materials, Volume XVIII (1979): 3-129 (hereinafter Anglo-French Arbitration).The question posed to the Court by the Parties was as follows: “What is the course of the boundary (or boundaries) between the portions of the continental shelf appertaining to the United Kingdom and the Channel Islands and to the French Republic, respectively, westward of 30 minutes west of the Greenwich Meridian as far as the 1,000 metre isobath?”, para.1 at 17. 99 that “Eddystone Rocks do constitute an island” because they “only cover entirely at high water equinoctial springs” and are consequently uncovered at mean high water spring tides which represented the United Kingdom’s preferred vertical datum (see Chapter 2.4.1).278 In contrast, France argued that Eddystone Rock was no more than a low-tide elevation primarily on account of the basis that the feature was not necessarily uncovered throughout the year.279 With regard to its choice of vertical datum, the United Kingdom expressed the view that whether under customary law or in accordance with Article 10 of the Convention on the Territorial Sea and Contiguous Zone, “the relevant high-water line is the line of mean high-water spring tides.” The United Kingdom noted that this was the high-water line shown on all British Admiralty charts and that many other States took this view. Furthermore, while the United Kingdom acknowledged that alternative interpretations of the high water line were possible, “mean high-water spring tides is the only precise one”, and that House Rock 280 was two feet above this level and 0.2 feet above highest astronomical tide.281 In response, the French government replied that “the British concept of high-water is very questionable” with a large number of States, including France, taking “high-water” to mean “the limit of the highest tides”. France argued that, 278 Ibid., para 122, p.66. Counsel for the United Kingdom also remarked that Eddystone Rocks were marked on relevant British Admiralty charts “without having provoked any objection from the French authorities.” The United Kingdom subsequently backed up its contention by supplying both the French authorities and the Court with a series of hydrographic surveys and charts indicating that at least one feature among the Eddystone Rock group, House Rock, was above the United Kingdom’s definition of high tide by several metres (a drying height of 5.5 metres on the then current Admiralty Chart No.1613). Ibid., paras 124 and 126, at 67-68. 279 Ibid., para.125, at 67. 280 House Rock is the feature among the Eddystone Rocks upon which the first three Eddystone lighthouses were constructed. Ibid., para.126. 281 Ibid., para.127, at 68. 100 according to the United Kingdom’s own information, Eddystone Rocks were “only very slightly above highest full-tides and may be covered by them.”282 France also argued that the fact that the United Kingdom had not incorporated Eddystone Rocks into its straight baselines system undermined its claims that these features were islands.283 Unfortunately from the point of view of the analysis of Article 121 (as well as Article 5), the Court side-stepped the issue. Having established that France had accepted the use of Eddystone Rock as a valid basepoint in the definition of the United Kingdom’s fisheries limits284 and as a basepoint for the construction of median lines in the Channel by the technical experts of both States,285 the Court found that France had acquiesced with regard to Eddystone Rock’s use as a basepoint.286 Consequently, the Court concluded that “it should treat the Rock as a relevant basepoint for delimiting the continental shelf boundary in the Channel” but “without taking any position on the difference between the Parties as to the precise legal status of Eddystone Rock.”287 The Jan Mayen Case In the Jan Mayen Case between Norway and Denmark (on behalf of Greenland), the ICJ was tasked with delimiting a maritime boundary between Norway’s Jan Mayen Island 282 Ibid., para.138, at 72. 283 Ibid., paras.125 and 138, at 67 and 72. 284 In particular negotiations concerning the preservation of French traditional fishing rights in the outer six nautical mile band of the United Kingdom’s 12 nautical mile territorial sea which took place in 1964 and 1965. Ibid., paras.129, 135-136 and 140, at 69, 71-73. 285 Both “true” and “simplified” median lines. Ibid., paras.132 and 137, at 70-73 286 Ibid., paras.140-143, at 72-74. 287 Ibid., paras.144, at 74. See also, Antunes, N.S.M., Estoppel, acquiescence and recognition in territorial and boundary dispute settlement, Boundary and Territory Briefing, Vol.2, no.2, (Durham: International Boundaries Research Unit, 2000), at 22-23. 101 and Greenland. The Court was called on by the two States concerned to draw a single line of delimitation for their respective fishing zone and continental shelf areas.288 Denmark (on behalf of Greenland) therefore did not suggest that Jan Mayen is a “rock” and therefore precluded from generating a claim to continental shelf rights in accordance with Article 121(3) of LOSC. The question of island classification and distinguishing between islands capable of generating extended maritime claims and “rocks” which cannot was therefore not addressed by the Court in this case. However, the case is of interest in the context of the present discussion precisely because Jan Mayen Island was considered to be an island capable of generating claims to continental shelf and EEZ rights. Jan Mayen has an area of 373km2 and it has been suggested that Jan Mayen was considered to be an island capable of generating extended maritime claims on the basis of its size alone.289 Arguably, this suggests that islands of an equivalent or greater size to Jan Mayen cannot be considered as mere rocks. It is worth observing that Jan Mayen has an area comparable to that of Heard Island and is considerably smaller than the main island of the Kerguelen Islands archipelago, the capacity of which to generate continental shelf and EEZ rights has been questioned (thought not on the basis of size, see below. See also, Figure 4.6). The Volga Case In the context of cases concerning alleged illegal fishing before ITLOS, notably the Volga Case,290 one Judge, Judge Budislav Vukas, has pronounced specifically on the issue islands and LOSC, Article 121. The Volga Case concerned the prompt release of a 288 Jan Mayen Case, paras.9-10. 289 Gjetnes, M., ‘The Spratlys: Are they Rocks or Islands?’, Ocean Development and International Law, Vol.32: 191-204, at 193 and 199. See also, the Jan Mayen Case. 290 See, the Volga Case. 102 Russian-flagged fishing vessel, apprehended in the vicinity of Australia’s Heard Island and McDonald Island (see Figure 3.2). Judge Vukas made a point of recording his opposition to the EEZ claims that Australia had made from these features. His reasoning for arriving at this view was that: The reason for giving exclusive rights to the coastal states was to protect the economic interests of the coastal communities that depended on the resources of the sea, and thus to promote their economic development and enable them to feed themselves. This rationale does not apply to uninhabited islands, because they do not have coastal fishing communities that need such assistance.291 Although Judge Vukas acknowledged that the EEZ regime may be “useful for the more effective preservation of the marine resources,” he went on to state that “it is not necessary to give exclusive rights to achieve this goal” and that there were alternative mechanisms to protect and preserve such fragile resources, for example through the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).292 Judge Vukas had taken a similar position in relation to France’s claimed EEZ around the Kerguelen Islands which adjoins that claimed by Australia from Heard Island and McDonald Island.293 The islands in question are undoubtedly remote and inhospitable in character. Heard Island is located in sub-Antarctic waters over 2,200nm southwest of Perth in Western Australia. McDonald Island lies 23nm further west and the Kerguelen group 238nm to 291 Ibid., Declaration of Vice-President Vukas, para. 6. 292 Ibid., para. 7. Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), Canberra, 20 May 1980, in force 7 April 1982, (1980) 19 ILM 837. See also Gullett, W. and Schofield, C.H., ‘Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean’, International Journal of Marine and Coastal Law, 22, 4 (2007): 545-583. 293 The “Monte Confurco” Case (Seychelles v. France) (2000) ITLOS Case No 6, Declaration of Judge Vukas. 103 the northwest.294 They are not tiny features, however. While McDonald Island and its associated islets are around 2.5km2 in area, Heard Island covers an area of 368km2 and the Kerguelen archipelago encompasses 7,215km2.295 While Heard Island and McDonald Island lack permanent inhabitants, Kerguelen hosts a small settlement, largely devoted to supporting scientific research, which is manned year-round.296 Australia claimed a 200nm fishing zone including in respect of Heard Island and McDonald Island in November 1979 and an EEZ from 1994.297 France claimed an EEZ around the Kerguelen Islands from February 1978. 298 Australia and France have recognised each other’s EEZ claims through their maritime boundary delimitation of 1982 and in so doing recognised each other’s insular features from which the maritime claims being divided were made as islands rather than rocks (see Figure 3.2).299 294 See, Geoscience Australia, “Heard and McDonald Islands”, at: <http://www.ga.gov.au/education/facts/dimensions/externalterr/heard.htm>. See also, Gullett and Schofield, 2007. 295 See, Australian Antarctic Division, “About Heard Island”, at: <http://www.heardisland.aq/about/location_geography.html>; and, Ministère de l'Intérieur, de l'Outre-Mer et des Collectivités territoriales, “Les T.A.A.F. ”, at : <http://www.outre- mer.gouv.fr/outremer/front?id=outremer/decouvrir_outre_mer/taaf/publi_P_les_t_a_a_f_1082040 279389>. 296 Heard Island has also supported sealers in the past. See also, Gullett and Schofield, 2007. 297 Australia proclaimed an extended 200nm Australian Fishing Zone (AFZ) in November 1979, pursuant to Fisheries Act 1952 (Cth), s 4 as amended by Fisheries Amendment Act 1978 (Cth), s 3 (since replaced by the Fisheries Management Act 1991 (Cth). announced its intention to declare an EEZ in September 1991. This was achieved by the Maritime Legislation Amendment Act 1994 (Cth). See, Gullett and Schofield, 2007: 547-548. 298 France made a general claim to an EEZ through Law No. 76-655 of 16 July 1976. See, Law No. 76-655 of 16 July 1976 relating to the Economic Zone off the coasts of the territory of the Republic; <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/FRA_1976_Law.pdf>.Subs equently, France issued a series of decrees relating to specific territories, including Decree No. 78- 144 of 3 February 1978 which established an EEZ off the coasts of the French Southern and Antarctic Territories, thus including the Kerguelen Islands. See, Decree No. 78-144 of 3 February 1978, creating an EEZ off the coasts of the French Southern and Antarctic Territories; <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/FRA_1978_Decree144.pdf >. See, Gullett and Schofield, 2007: 548-549. 299 Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, 4 January 1982 (in force 10 January 1983). Treaty text available at 104 Figure 3.2: Location of Heard Island and McDonald Island and the Kerguelen Islands Source: Adapted from Gullett and Schofield, 2008: 548. Neither Australia’s and France’s claimed EEZs surrounding these islands, nor their delimitation of a maritime boundary between them, has given rise to a known formal protest from other States. Indeed, in the Volga Case the Russian Federation did not challenge Australia’s claim an EEZ around Heard Island and McDonald Island. Furthermore, the majority view of the ITLOS can be read as supporting the view that Australia’s claim to an EEZ was valid. Judge Vukas’s comments were issued through a separate declaration. However, the majority may have taken the view that this issue was not relevant to the issue of the prompt release of the fishing vessel which they were bound to consider without delay and therefore declined to comment one way or the other, <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS- FRA1982MD.pdf>. See also, Charney and Alexander, 1993: 1,185-1,194. See also, Gullett and Schofield, 2007. 105 especially in light of the non-challenge to Australia’s EEZ claim by Russia.300 It is therefore somewhat unclear to what extent Judge Vukas’s intervention clarifies the debate on the interpretation of LOSC, Article 121. The Pedra Branca Case On 23 May 2007 the ICJ rendered its decision in the Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge between Malaysia and Singapore.301 At issue was the question of sovereignty over three small insular features located at the eastern entrance of the Singapore Strait, where it opens into the South China Sea (see Figure 3.3). The Court ruled that sovereignty over Pedra Branca/Pulau Batu Puteh (hereafter Pedra Branca)302 rests with Singapore and sovereignty over Middle Rocks rests with Malaysia. Sovereignty over South Ledge was not specifically determined by the Court.303 300 See, Gullett and Schofield, 2007. It can be argued, however, that Russia would have little incentive to challenge Australia’s EEZ claim, since if the vessel had, in fact, been apprehended on the high seas, it is doubtful whether ITLOS would have had jurisdiction to hear the case and, consequently there would have been no prompt release at the behest of that court for the Volga. 301 See Pedra Branca Case. 302 The island was referred to by Singapore as Pedra Branca and by Malaysia as Pulau Batu Puteh, and the Court used both names throughout its judgment. However, since the Court ruled that Singapore has sovereignty over the island, the reference here will be to Pedra Branca. 303 For a brief summary of the case and analysis of the issues that arise in its aftermath, especially regarding baselines, maritime jurisdictional claims and the delimitation of maritime boundaries in the eastern Singapore Straits see, Beckman and Schofield, 2009. 106 Figure 3.3: Location of Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge Source: Adapted from Beckman and Schofield, 2009: 2. The largest of the three disputed features, Pedra Branca, is a small granite island with an area of about 8,560 square metres (m) at low tide. It is 137m long and has an average width of 60m. It is located at 1° 19’ 48” N and 104° 24’ 27” E. It lies approximately 24nm to the east of Singapore, 7.7nm to the south of the Malaysian State of Johor and 7.6nm to the north of the Indonesian island of Bintan.304 According to the relevant British Admiralty Pilot, “Pedra Blanca” is “a rock, 7m high, on the SE side of the Middle Channel” surmounted by Horsburgh Light which has stood on the island since 1850.305 There are other navigational facilities and a helicopter pad on the island.306 304 Pedra Branca Case, para.16. 305 Pedra Branca Case, paras. 149-163. See also, United Kingdom Hydrographic Office (UKHO), Malacca Strait and West Coast of Sumatera Pilot, 8th edition, NP44, (Taunton: UKHO, 2006), at 7.128. 306 Pedra Branca Case, para. 249; UKHO, 2006, at 7.128, Beckman and Schofield, 2009: 2. 107 Middle Rocks consists of two clusters of small rocks about 250 m apart that are 0.6 to 1.2 m high and permanently above water at high tide. They are located 0.6 nautical miles to the south of Pedra Branca.307 South Ledge (Kerang Selatin) is a rock formation only visible at low-tide. It is located 1.7 nautical miles south of Middle Rocks and 2.2 nautical miles south-south-west of Pedra Branca.308 As the question before the International Court was one of territorial sovereignty, the question of the status of the three features in question was not at issue.309 However, in its Judgment the Court referred to Pedra Branca as “a tiny uninhabited and uninhabitable island.”310 The Court’s characterisation of Pedra Branca as “tiny” is uncontroversial enough. However, the Court’s assertion that Pedra Branca is “uninhabited and uninhabitable” is intriguing. As noted, Pedra Branca boasts an important lighthouse of long standing as well as a number of other facilities and has consequently been under continuous occupation by British and, more recently, Singaporean personnel since the middle of the nineteenth century. The Court’s use of the term “uninhabited” suggests that the government personnel occupying Pedra Branca, even over an extended period of time, do not qualify as a population. This, in turn, suggests that merely the occupation of a small feature with what amounts to a garrison does not render that feature capable of 307 Pedra Branca Case, para. 18. The British Admiralty Pilot states that Middle Rocks are “a group of above-water rocks, lying 6 cables S of Horsburgh Light.” UKHO, 2006, at 7.130. See also, Beckman and Schofield, 2009: 2. A cable is equivalent to one tenth of a nautical mile or 100 fathoms (185.2 m). 308 Pedra Branca Case, para. 18. UKHO, 2006, at 7.170 notes that “a stranded wreck lies on the shoal”. See also, Beckman and Schofield, 2009: 2. 309 According to Article 2 of the Special Agreement reached between the two States in 2003, of which they notified the Registrar of the Court through a joint letter of 24 July 2003, Malaysia and Singapore requested the Court “to determine whether sovereignty over (a) Pedra Branca/Pulau Batu Puteh; (b) Middle Rocks; (c) South Ledge belongs to Malaysia or the Republic of Singapore.”, Ibid., para.2. 310 Ibid., para.66. 108 human habitation within the meaning of LOSC, Article 121(3). This could have implications for a number of other small islands around the world whose only population consists of government personnel and research scientists. Examples include numerous islands among the Spratly Islands as well as features such as Japan’s Okinotorishima (see Chapter 3.5.4 below and 3.2 above). A Missed Opportunity?: The Black Sea Case In the recently concluded Case Concerning Maritime Delimitation in the Black Sea between Romania and Ukraine, a key issue was the insular status of Ostrov Zmeinyy (Serpents’ Island or Insular Serpilor in Romanian) belonging to Ukraine, located approximately 19nm from the terminus of the land boundary between the two States. Serpents’ Island is a sheer-sided feature rising to a height of 39.6m with a surface area of 0.135km2 (see Figure 4.2).311 The presence of Serpents’ Island off its mainland coast and the potential impact of this feature on the delimitation of maritime boundaries has been a Romanian maritime concern of long standing. Romania’s multiple interventions and suggestions for draft articles in the course of UNCLOS III, outlined above. which consistently sought to downplay both the capacity of small islands or islets to generate maritime jurisdictional claims and their potential to influence maritime boundary delimitation, were squarely aimed at minimising the potential impact of Serpents’ Island 311 Prescott and Schofield, 2005: 65. In oral arguments during the Black Sea Case, the area of Serpents’ Island was put at 0.17 km2. See, Black Sea Case, Public sitting held on Friday 4 September 2008, at the Peace Palace, President Higgins presiding, “Romania’s Irrelevant Circumstances: The Black Sea as an enclosed or Semi-enclosed Sea, Delimitation, Agreements therein and the Significance of Serpents’ Island (continued)”, Oral argument on behalf of Romania of Professor Vaughn Lowe, at 42, available at <http://www.icj-cij.org/docket/files/132/14707.pdf>. 109 in the context of the delimitation of maritime boundaries between Romania and the Soviet Union.312 Both Romania and Ukraine addressed the issue of Article 121 as it applies to Serpents’ Island in their written pleadings,313 and in their oral arguments. One of Romania’s central arguments was that Serpents’ Island was a rock and, therefore, only entitled to a territorial sea and should not be used as a basepoint for constructing the equidistance line for the EEZ/continental shelf boundary. Romania made sustained attacks on the insular character of Serpents’ Island, in particular casting doubt on the capacity of Serpents’ Islands to sustain human habitation or an economic life of its own. In oral argument, counsel for Romania emphasised that “rocks” within the meaning of Article 121(3) of LOSC are islands, but a sub-category of islands. 314 Counsel for Romania arguing that all “rocks” fall within the definition of islands contained in Article 121(1) being naturally formed areas of land, surrounded by water and above water at high tide.315 Romania referred to Article 121 of LOSC as “a carefully crafted provision which distinguishes between two different categories of island.”316 312 Serpents’ Island becoming part of Ukraine on the break up of the Soviet Union in 1991. 313 See, Black Sea Case, Memorial submitted by Romania, 19 August 2005, particularly paras.8.4- 8.41, at 84-98 and paras.10.1-10.132, at 141-194; Counter-Memorial submitted by Ukraine, 19 May 2006, paras. 7.27-7.88 at 177-197; Reply submitted by Romania, 22 December 2006, paras.5.1-5.184, at 127-187 and paras.6.16-6.36, at 193-200; and, Rejoinder submitted by Ukraine, 6 July 2007, paras.5.18-5.28 and 6.57-6.72 at 93-96 and 114-119, available at, <http://www.icj- cij.org/docket/index.php?p1=3&p2=3&k=95&case=132&code=ru&p3=1>. 314 See, Black Sea Case, Public sitting held on Friday 4 September 2008, “Serpents’ Island under the 1982 Convention”, Oral argument on behalf of Romania of Professor Vaughn Lowe, at 41, available at <http://www.icj-cij.org/docket/files/132/14707.pdf>. 315 Ibid. 316 Ibid. Emphasis as in original. 110 Turning to the interpretation of Article 121, while Counsel for Romania noted that no size criterion had been included in the definition of “rocks” that, nonetheless, “the larger an island is, the more likely it is to be capable of sustaining human habitation or an economic life of its own.”317 It was observed, however, that the application of any of the various proposals relating to size-based criteria for differentiating between islands and rocks “would plainly have left Serpents’ Island in the ‘paragraph 3’ category.”318 In particular reference was made to Malta’s proposed 1km2 criterion319 – as compared with the area of Serpents’ Island put at 0.17km2 – and Ireland’s proposal that islands should possess at least 10 per cent of the land area and 10 per cent of the population of the State320 – with it being suggested that the population of Serpents’ Island amounting to “less than one three-millionth of 1 per cent” of Ukraine’s land territory.321 Ukraine asserted in its written pleadings that: For the purposes of Article 121, the ability to sustain human habitation is to be understood as meaning that, as a matter of practice over a number of years, human habitation has been shown to be possible on the island, while the ability to sustain an economic life of its own is to be understood as meaning that, as a matter of practice over a number of years, life on the island has proved economically sustainable.322 317 Ibid. at 42. 318 Ibid. 319 UN Doc.A/AC.138/SC.II/L.28, Article 1. See, Nandan and Rosenne, 1995: 328. 320 UN Doc.A/CONF.62/C.2/L.43 (1974) and Black Sea Case, Public sitting held on Friday 4 September 2008, “Serpents’ Island under the 1982 Convention”, Oral argument on behalf of Romania of Professor Vaughn Lowe, at 42. 321 Black Sea Case, Public sitting held on Friday 4 September 2008, “Serpents’ Island under the 1982 Convention”, Oral argument on behalf of Romania of Professor Vaughn Lowe, at 42. 322 Black Sea Case, Counter-Memorial submitted by Ukraine, 19 May 2006, para.7.42, at 183. 111 Romania took issue with this statement in its oral arguments, terming aspects of this statement “tendentious and highly problematic.”323 Counsel for Romania suggested that a demonstration that human habitation is possible on an island is not equivalent to proving that an island can be sustained. If the Article 121 criterion is to have any meaning at all, it must require more than that a handful of people, entirely – and I emphasize, entirely – sustained by supplies of food and water shipped in from the mainland by the government, should be able to survive for a time on the island. If that were to be enough to satisfy the requirement, any State rich enough to be able to maintain the airlift or the shipping in of supplies could buy itself out of the paragraph 3 disqualification and claim an EEZ and continental shelf around any offshore feature large enough for one or two people to camp out on it.324 Ukraine’s also contended that “human habitation’ is not the same as a permanent resident population”,325 and argued that that the “notional occupation” of small insular features around the world “by unfortunate military personnel as a basis for establishing vast maritime claims” was “not what UNCLOS III intended.”326 In response Romania stated that: Article 121 requires that the rock should be capable of sustaining human habitation or economic life of its own. It is not enough that the mainland State can keep people alive on the rock, and persuade, or order, people to stay on it for a period of time.327 Having advanced these arguments Romania did note that it was: 323 Black Sea Case, “Serpents’ Island under the 1982 Convention”, Oral argument on behalf of Romania of Professor Vaughn Lowe, 4 September 2008, at 43. 324 Ibid., at 44. 325 Black Sea Case, Counter-Memorial submitted by Ukraine, 19 May 2006, para.7.41, at 183. 326 Black Sea Case, “Serpents’ Island under the 1982 Convention”, Oral argument on behalf of Romania of Professor Vaughn Lowe, 4 September 2008, at 44. 327 Ibid. Emphasis as in original. 112 …idle to pretend that the Law of the Sea Convention defines precisely what is necessary in the way of human habitation, or that the travaux préparatoires give clear guidance on that question. They do not.328 Romania then emphasised that, in order to qualify as an island rather than a rock within the meaning of Article 121(3), human habitation would have to be sustained over a period of time and referred to the ICJ’s characterisation of Pedra Branca/Pulau Batu Puteh as “a tiny uninhabited and uninhabitable island” in support of this view. The presence of some individuals, even permanently or on a rotational basis, because they have to perform an official duty such as maintaining a lighthouse, does not amount to sustained “human habitation”.329 With regard to the “economic life” requirement contained in Article 121(3), Romania Ukraine’s argued that: “economic life” is not the same as viability as an independent, self-contained and self-sufficient economy involving the development of natural resources, since these terms refer to lesser forms of economic activity.330 And that: Accordingly, and particularly in relation to small maritime features, these criteria can be satisfied by small-scale activities generating income and expenditure and the flow of goods and services (such as scientific research and tourism). 331 328 Ibid. 329 Ibid.: 45-46. 330 Ibid.: 47 and Black Sea Case, Counter-Memorial submitted by Ukraine, 19 May 2006, para.7.41, at 183. 331 Ibid.: 47. 113 It should be noted that Ukraine highlighted the “considerable ambiguity” that exists over precise meaning of the terms “human habitation” and “economic life of its own”.332 Romania characterised Serpents’ Island as “bleak, inhospitable with no fresh water” and “no more capable of sustaining human life and habitation than a steel oil platform would be.”333 Romania termed the small-scale economic activities referred to by Ukraine as “perfunctory” and as setting the threshold too low to make the “economic life” requirement meaningful.334 Romania went on to suggest that “the supposed “economic life” of Serpents’ Island has no real existence outside of a line in the budget of the Ukrainian Government. Serpents’ Island itself sustains nothing”, that “if the Government stops pouring money into the rock, the people currently paid to be there will doubtless pour out.”335 Romania also ridiculed as “circular” the Ukrainian argument that one must look beyond actual economic activity to potential economic activity were Serpents’ Island to be awarded a continental shelf or EEZ in order to determine if a rock is capable of sustaining economic life of its own potential economic activity. 336 According to Romania the Ukrainian argument is “that a rock can have an EEZ if it can support economic life of its own; and that it can –– or at least might be able to –– support economic life of its own if it has an EEZ.”337 Romania advocated that the test contained in Article 121 be “approached in order.” That 332 Black Sea Case, Counter-Memorial submitted by Ukraine, 19 May 2006, para.7.41, at 183. 333 Black Sea Case, “Serpents’ Island under the 1982 Convention”, Oral argument on behalf of Romania of Professor Vaughn Lowe, 4 September 2008, at 46-47. 334 Ibid. 335 Ibid.: 47-48. 336 Ibid.: 48. 337 Ibid. 114 is, that it be determined whether a feature can sustain human habitation or an economic life of its own and only then can the feature in question be entitled to an EEZ or continental shelf.338 Ukraine sought to counter Romania’s arguments by observing that Serpents’ Island represented “only one element of the overall coastal relationship” between the Parties in which context Ukraine claimed a significantly longer relevant coastline than that of Romania amounting to a “predominant geographical position”.339 Ukraine emphasised the significance of Serpents’ Island characterising it as “a prominent island in the Black Sea at the crossroads of civilizations” that had “captured the imagination and the attention of ancient travellers and historians, who devoted a number of accounts to its history and the legends it inspired” and that “map makers have consistently referred to it as an island”.340 Regarding Serpents’ Island in relation to Article 121, Ukraine argued that based on the graphic evidence presented Serpents’ Island was “clearly…not a rock within the meaning of Article 121(3).”341 338 Ibid.: 48-49. 339 Black Sea Case, Oral argument on behalf of Ukraine of Mr Rodman Bundy, 11 September 2008, at 50, available at <http://www.icj-cij.org/docket/files/132/14725.pdf>. 340 Ibid.: 10-11. 341 Black Sea Case, Oral argument on behalf of Ukraine of Ms Loretta Malintoppi, 12 September 2008, at 12. 115 Noting the lack of definition of a rock within Article 121(3), Ukraine stated that Article 121(3) “does not refer to actual habitation or actual economic life”, but “the capacity to sustain human habitation or economic life.”342 Arguing against an overly restrictive interpretation of Article 121(3): “Surely, the fact that an island depends on the mainland for basic resources is quite common and the terms “economic life of its own” cannot mean complete self-sufficiency, since such a restrictive interpretation would rule out a great number of small islands around the world.”343 Article 121 (3) of the Convention was intended to cover a handful of exceptionally small features. Rockall was the paradigm case. This provision was never intended to cover islands of the size of Serpents’ Island, of which there must be many examples all over the world. This is why proposals – advanced during the Conference leading up to the conclusion of the Convention, such as those of Romania to expand the class of features covered by the paragraph to include “islets” and small islands similar to islets – were rejected.344 The United Kingdom’s ‘roll-back’ of maritime claims with regard to Rockall, discussed above, was then cited as evidence in support of this contention. The failure of Romania to secure special status for islets at UNCLOS III was highlighted. “Romania’s proposals were obviously formulated with Serpents’ Island in mind. But they were ultimately rejected.” “It is no secret that these proposals were aimed at Serpents’ 342 Ibid.: 16. Emphasis as in original. 343 Ibid.: 17. 344 Ibid. 116 Island… Romania itself did not consider Serpents’ Island as a rock within the meaning of Article 121 (3)”.345 Although both Romania and Ukraine, as outlined above, raised arguments directly related to Article 121 of LOSC and invited the Court to make a ruling on this provision, in its Judgment the Court side-stepped the issue. The Court first determined that Serpents’ Island could not serve as a basepoint in the construction of a provisional equidistance line between the Parties. Regarding the potential role of Serpents’ Island as a relevant circumstance for the adjustment of a provisional equidistance line, the Court found that “all of the areas subject to delimitation in this case are located in the exclusive economic zone and the continental shelf generated by the mainland coasts of the Parties and are moreover within 200 nautical miles of Ukraine’s mainland coast.”346 In view of the location of Serpents’ Island, approximately 20nm off the Romanian mainland coast and the geographical configuration of the coasts of the Parties in the northwest corner of the Black Sea, the Court reasoned that “any continental shelf and exclusive economic zone entitlements possibly generated by Serpents’ Island could not project further than the entitlements generated by Ukraine’s mainland coast because of the southern limit of the delimitation area as identified by the Court” and that any such maritime entitlements of Serpents’ Island to the east “are fully subsumed by the entitlements generated by the western and eastern mainland coasts of Ukraine itself.”347 345 Ibid.: 17-19. 346 Ibid., para.187. 347 Ibid. 117 Consequently, the Court ruled that the presence of Serpents’ Island “does not call for an adjustment of the provisional equidistance line and, further, that “[i]n view of the above the Court does not need to consider whether Serpents’ Island falls under paragraphs 2 or 3 of Article 121 of UNCLOS nor their relevance to this case.”348 Although any ruling on Article 121 that the Court might have made would technically be binding only on Romania and Ukraine, had the Court made a decision on the issue of whether Serpent’s Island was a rock within Article 121(3), the Court’s reasoning would be authoritative and given considerable weight by other courts and tribunals and States. As it stands, however, the Court’s reluctance to tackle this difficult issue represents a frustrating missed opportunity for clarification in the interpretation of Article 121 of LOSC. 3.5.4 An Avenue Closed? In order to define the outer limit of their continental shelf entitlements beyond the 200nm limit, coastal States are required to submit proposed outer limits to a specialised United Nations scientific body, the Commission on the Outer Limits of the Continental Shelf (CLCS). As outlined in Chapter 2, Article 76 provides a complex series of entitlement formulae and constraints with which such submissions are to adhere. 348 Ibid. 118 As noted above (see, chapter 2.5.1), two of the formula crucial to the implementation of Article 76 – the 200nm limit line and 350nm ‘cut-off’ line are distance measurements from the submitting coastal State’s baselines. This initially raised hopes that the CLCS would critically assess the validity of a submitting State’s baselines and basepoints and, in particular, evaluate whether certain islands are capable of generating claims to continental shelf rights.349 This could, in turn, have yielded a route towards clarification of Article 121 as there existed the enticing prospect of the CLCS assessing the validity of certain basepoints for measuring the 200nm and 350nm, including whether particular islands involved could legitimately be employed to generate EEZ and continental shelf rights or were in fact mere rocks within the meaning of Article 121(3) of LOSC. Unfortunately for the purposes of clarifying Article 121 of LOSC, while the Commission is tasked to examine the data and methodology relating to the construction of the 200nm EEZ limit and the 350nm constraint line, it cannot analyse the baselines from which these limits are measured and, in particular, will not assess their consistency with the relevant provisions of LOSC.350 This is consistent with the scientific role of the Commission. The interpretation of a treaty is, after all, a legal process. Equally, it is beyond the mandate of 349 Elferink (1998: 63) raised this possibility prior to the CLCS publishing its Scientific and Technical Guidelines. Elferink speculated that in evaluating the outer limits of the continental shelf proposed by a State “the CLCS may be confronted with submissions which use an island, which other states may consider to be a rock in the sense of article 121 (3) of the Convention, as a baseline. As article 76 (8) of the Convention provides that the limits of the continental shelf established by a coastal state on the basis of the CLCS shall be final and binding, it would seem to be pertinent that some evaluation of the baselines as submitted by the coastal state takes place” (Ibid.) 350 CLCS documents clearly state that “The Commission is not entitled by the Convention to issue any recommendations with respect to the delineation of baselines from which the breadth of the territorial sea is measured. Its role is limited to a potential request for information about the geodetic position and definition of the baselines used in the submission by the coastal state.” Commission on the Limits of the Continental Shelf, Scientific and Technical Guidelines of the Commission on the Limits of the Continental Shelf, CLCS/11, 13 May 1999, available at, <http://daccessdds.un.org/doc/UNDOC/GEN/N99/171/08/IMG/N9917108.pdf?OpenElement>. 119 the Commission to assess whether certain features should be regarded as islands or rocks. In large part this is because the choice of types of baselines to apply and the definition of national claims to maritime jurisdiction are unilateral legal and political acts. In essence, issues related to baselines, maritime claims and boundaries are intimately connected to the coastal State’s sovereignty – something that States tend to guard most jealously.351 This is, however, a potentially problematic issue given that excessive claims to straight baselines are commonplace around the world and certain insular features which might be more properly regarded as rocks have been treated as valid basepoints for EEZ and continental shelf claims by the States to which they belong.352 Were the Commission to uncritically accept, though not necessarily endorse, arguably excessive baselines and problematic insular basepoints as the basis for the 200 and 350 nm limits used in its deliberations, as appears to be the case, other coastal States, whose interests are affected will object. This, in turn, raises questions over the validity of the Commission’s recommendations and the final and binding nature of the outer continental shelf limits defined by the coastal State on the basis of those recommendations. In effect, a maritime dispute will result, or an existing one will tend to be exacerbated.353 351 As McDorman notes, “There is nothing in the wording of Article 76 or Annex II which changes in a fundamental way the inter-state dynamic respecting ‘lines in the water’ of assertion and counter-assertion.” By the term “lines in the water’ McDorman is referring to straight baselines and other unilateral maritime claim lines made by coastal States. McDorman, 2002: 308-310. 352 See, for example, Roach and Smith: 57-161. 353 A related issue in this context is whether a dispute over the application of baselines would constitute a “maritime dispute” within the meaning of the Commission’s Rules of Procedure. See, for example, Elferink, A.G.O. and Johnston, C., “Outer Limits of the Continental Shelf and “Disputed Areas”: State Practice concerning Article 76(10) of the LOS Convention”, The International Journal of Marine and Coastal Law 21, no.4 (2006): 461-487; Symmons, C.R., “The Irish Partial Submission to the Commission on the Limits of the Continental Shelf in 2005: A Precedent for Future Such Submissions in the Light of the “Disputed Areas” Procedures of the Commission?”, Ocean Development and International Law 37, (2006): 299-317; and Rothwell, 120 It is not the Commission’s role to settle maritime and territorial disputes or to divide areas of outer continental shelf where there are overlapping claims. Instead, the Commission is concerned with determining the outer limit of the continental shelf. With regard to maritime boundary delimitation, paragraph 10 of Article 76 is explicit: “The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.”354 This is of particular concern to coastal States engaged in contentious disputes over island sovereignty. It is also the case that many broad continental margins are shared by more than one coastal State, raising the possibility of overlapping outer continental shelf claims.355 The preparation of a submission to the CLCS relating to the limits of the outer continental shelf by one State cannot impact on the rights of a neighbouring State where the potential maritime boundary between them remains undelimited. No “final and binding” outer continental shelf limits for one coastal State may be established on the recommendations of the Commission where a maritime boundary delimitation remains unsettled or overlapping claims exist. It is therefore up to the coastal States concerned, D.R., “Issues and Strategies for Outer Continental Shelf Claims”, The International Journal of Marine and Coastal Law, 23 (2008): 185-211. 354 LOSC, Article 76(10). 355 For example Prescott in a 1998 study identified 29 continental margins extending beyond the 200 nm limit. Only seven of these areas were likely to prove to be part of the outer continental shelf of only one state – the remaining 22 were all likely to be shared continental margins. Prescott, J.R.V., “National Rights to Hydrocarbon Resources of the Continental Margin Beyond 200 Nautical Miles”, pp.51-81 in Blake, G.H., Pratt, M.A. and Schofield, C.H. (eds) Boundaries and Energy: Problems and Prospects (Kluwer Law International, The Hague: 1998): 56-58. 121 rather than the Commission, to resolve any overlapping claims and delimit maritime boundaries.356 In this context it will be interesting to see how the CLCS deals with the objections that have been raised concerning Japan’s use of its southernmost territory, Okinotorishima (see above and Chapter 5), as a basepoint for the generation of EEZ claims and as the basis for Japan’s submission regarding areas of outer continental shelf beyond its 200nm EEZ limit. In particular, Japan’s submission in respect of the Southern Kyushu-Palau Ridge relies on its natural prolongation from Okinotorishima southwards (see Figure 3.4). This feature, or features, also known as Douglas Reef, is a reef platform surmounted by a number of very small rocks, which are marginally above the high-tide level.357 While the reef platform itself is reasonably substantial, measuring approximately five by two kilometres, at high tide only two small rocks measuring only a few metres in area are left above water.358 Japan takes the view that these features are islands that generate claims to continental shelf and EEZ rights. 356 See, Annex II of UNCLOS and the Rules of Procedure of the Commission on the Limits of the Continental Shelf. The current version of the Rules is contained in Doc. CLCS/40/Rev.1 of 17 April 2008. Available, <http://www.un.org/Depts/los/clcs_new/commission_documents.htm#Rules%20of%20Procedure >. See also, McDorman, 2002 and Elferink and Johnston, 2006. 357 Prescott and Schofield, 2005: 84-85. Yann-huei Song notes that “highest tide” the two above tide features are only 16 and six centimetres above the surface of the water respectively. See Song, Y.H., “Okinotorishima: A “Rock” or an “Island”? Recent Maritime Boundary Controversy between Japan and Taiwan/China, pp.145-176 in Hong, S.Y. and Van Dyke, J.M. (eds) Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Publications on Ocean Development, Volume 65 (The Hague: Martinus Nijhoff, 2009), at 148. 358 Brown et al., “Case Studies in Oceanography and Marine Affairs”, at 84-85. The two rocks are known, in English, as North Dew Rock and East Dew Rock. 122 Figure 3.4: Okinotorishima and Japan’s Maritime Claims Source: Adapted from Schofield and Arsana, 2009: 45. The above high tide features that make up Okinotorishima are mushroom-shaped and connected to the underlying reef platform by fragile columns which, in their natural state, are vulnerable to being undercut by wind and wave action. In the early 1980s there were reported to be four above high-tide features, but two of these have succumbed to erosion.359 As noted above, in order to preserve the remaining above high tide features from erosion, and thus Japan’s extensive maritime claims from them, in the late 1980s Japan constructed sea defences around the rocks that form Okinotorishima at a cost reportedly in excess of US$200 million. 359 Ibid., at 84. 123 It has been contended that the islets that make up Okinotorishima are “rocks” and are thus incapable of generating continental shelf or EEZ rights.360 In 2004 the People’s Republic of China (hereafter “China”) informed Japan that, in its view, Okinotorishima was no more than a rock.361 Chinese vessels have repeatedly ventured into the Japanese claimed EEZ around Okinotorishima and conducted survey activities, pointedly not requesting permission from the Japanese to do so, in order to emphasize the point.362 For its part, Japan has protested what it views as these violations of its EEZ rights and has also sought to bolster its contention that Okinotorishima is an island rather than a rock by seeking to develop the feature.363 Following Japan’s submission to the CLCS in November 2008, China issued a note verbale which asserted that while exercising the right to establish continental limits beyond the 200nm limit, States that are parties to UNCLOS “shall also have the obligation to ensure respect for the extent of the International Seabed Area” and should 360 See, for example, Van Dyke, J. “Speck in the Ocean Meets Law of the Sea”, letter to the editor, New York Times 21 January 1988, available at <http://query.nytimes.com/gst/fullpage.html?res=940DE3D9163DF932A15752C0A96E948260&s ec=&spon=#> and, Silverstein, 1990: 410. 361 Fackler, M. “Japan’s ultranationalists: Stuck between a rock and a hard sell”, The Wall Street Journal, 20 February 2005. 362 See, Yoshikawa, Y. “Okinotorishima: Just the Tip of the Iceberg”, Harvard Asia Quarterly IX, No.4 (Fall 2005), available at, <http://www.asiaquarterly.com/content/view/29/1/>. See also, Song, 2009: 151-154. 363 Japan has maintained a marine research station at Okinotorishima since 1988. More recently there have been moves to install radar facilities and there are reportedly plans to build a light house and build accommodation facilities. See, for example, Fackler, 2005 and Yoshikawa, 2005. The threat that sea level rise poses to Okinotorishima is also being addressed through a project to plant juvenile coral in order to help build up the reef and avoid submergence. See, “Japan Plants Coral to Save Sinking Territory”, Agence France-Presse, 18 June 2007, available at, <http://www.terradaily.com/reports/Japan_Plants_Coral_To_Save_Sinking_Territory_999.html>. See also, Song, 2009: 156-161. 124 “ensure that the extent of the Area is not subject to any illegal encroachment.”364 The Chinese note questioned whether it was appropriate for Japan to base its submission for outer continental shelf rights relating to the Shikoku Basin, Minami-Io To and Southern Kyushu-Palau Ridge Regions on Okinotorishima on the grounds that the feature in question “is in fact a rock as referred to in Article 121(3) of the Convention.”365 China further stated that “available scientific data fully reveal” that on the basis of its “natural conditions” the “rock” Okinotorishima “obviously cannot sustain human habitation or economic life of its own” and is therefore not entitled to an EEZ or continental shelf and “even less shall it have the right to the extended continental shelf beyond 200 nautical miles.”366 In light of these observations, China “kindly requested” the Commission not to take any action in relation to those areas of outer continental shelf dependent on Japan’s natural prolongation from Okinotorishima.367 The Commission may, therefore, in due course refrain from making recommendations in respect of at least part of the areas mentioned in the Chinese note, although it is difficult to assert this with supreme confidence.368 364 Note verbale from the Permenant Mission of the People’s Republic of China to H.E. Mr Ban Ki- Moon, Secretary-General of the United Nations, 6 February 2009, CML/2/2009 (translation), available at <http://www.un.org/Depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf>. 365 Ibid. 366 Ibid. 367 Ibid. 368 See, Schofield, C.H. and Arsana, A (2009) “Beyond the Limits?: Outer Continental Shelf Opportunities and Obligations in East and Southeast Asia”, Contemporary Southeast Asia, Volume 31, No.1: 28-63, at 44-47. 125 3.6 Low-tide Elevations Article 13 of LOSC, which repeats the terminology found in Article 11 of the Geneva Convention on the Territorial Sea and Contiguous Zone, defines a low-tide elevation as a “naturally-formed area of land which is surrounded by water at low-tide but submerged at high-tide.” Low-tide elevations are not capable of generating claims to maritime space in their own right and are considered to be distinct from the islands as a result of their being inundated state at high tide.369 It is open to debate whether such features are territory, as the ICJ pointing out that is unclear whether it is possible to claim sovereignty over a low-tide elevation located more than 12nm from the mainland coast or from an island.370 In the Pedra Branca Case, even though the Court had been specifically requested to determine sovereignty over this feature in the Special Agreement reached by Malaysia and Singapore, the Court refrained. Instead, the Court referred to Qatar/Bahrain Case: that a coastal State has sovereignty over low-tide elevations that are situated within its territorial sea, since it has sovereignty over the sea itself. The Court found that on the basis of the evidence presented and as it had not been tasked with the delimitation of the maritime boundary between the Parties, it could only conclude that sovereignty over South Ledge “belongs to the State in the territorial waters of which it is located” and the feature “falls within the 369 See, Lavalle, 2004: 57-64. 370 See, the Qatar/Bahrain Case, paras. 205-206. See also Pedra Branca Case, paras. 295-296. See also, Beckman and Schofield, 2009: 4. 126 apparently overlapping territorial waters generated by the mainland of Malaysia, Pedra Branca and Middle Rocks.”371 Nonetheless, such features may be used as territorial sea basepoints, but only if the low- tide elevation in question falls wholly or partially within the breadth of the territorial sea measured from the normal baseline of a State’s mainland or island coasts.372 A low-tide elevation’s value for maritime jurisdictional claims is, therefore, geographically restricted to coastal locations. Such features have therefore been termed “parasitic basepoints” as their zone-generative capacity is reliant on their proximity to a mainland or island baseline.373 Although low-tide elevations which fall partially within the territorial sea measured a mainland or island coast may generate a territorial sea of their own, those falling partially or wholly within a territorial sea measured from a straight baseline do not. Additionally, low-tide elevations which fall wholly or partially within the territorial sea of another low- tide elevation (itself wholly or partially within the territorial sea of a mainland or island coast), do not qualify so that there can be no ‘stepping stone’ effect offshore of low-tide elevations linked by territorial seas. It follows that low-tide elevations located beyond the territorial sea may not generate maritime zones of their own or be used in the construction of baselines for the generation of such zones. Such a feature would, 371 Pedra Branca Case, para. 297. 372 LOSC, Article 13(1). 373 Symmons, C.R., Some Problems Relating to the Definition of ‘Insular Formations’ in International Law: Islands and Low-Tide Elevations, Maritime Briefing, Vol.1, no.5, (International Boundaries Research Unit, Durham, 1995): 7. 127 therefore represent “no more than a navigation hazard.” 374 There is, however, an exception to this rule. In accordance with LOSC, Article 7(4), low-tide elevations may be used as basepoints for straight baselines if lighthouses or similar structures have been constructed on them or where general international recognition of the drawing of baselines from such features exists. 3.7 Submerged Banks and Shoals and Artificial Islands Banks and shoals that are never above low-water have no capacity to generate claims to maritime jurisdiction under LOSC. Additionally, as noted above, LOSC Article 60(8) states unambiguously that: “Artificial islands, installation 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.” Furthermore, entirely submerged features have no zone generative capacity even if a structure has been built on them, which is itself permanently above sea level. 374 Ibid.: 7. 128 3.8 Conclusions Distinguishing between islands and rocks remains a task fraught with hazards. There exists no objective way to achieve this based on Article 121 and its supporting drafting history alone. Indeed, rather than providing a useful aid in clarifying interpretation of these provisions, the drafting history of Article 121 instead reveals the scope and depth of the disagreements that were evident during the negotiations on the regime of islands during UNCLOS III. States adopted widely divergent views on the issue of islands. These distinct positions led States to propose substantively differing and frequently directly conflicting proposals which tended to reflect particular and opposing national interests. A review of the considerable scholarly literature that has evolved on this question indicates that key interpretational questions, notably regarding the question of distinguishing between islands within the meaning of Article 121(1) and rocks in keeping with Article 121(3), remain unresolved and divergent views linger on despite exhaustive analysis of both the text of LOSC and its associated travaux préparatoires. Indeed, a definitive interpretation of Article 121 of LOSC is inconceivable merely on the basis of analysis of the text of Article 121 itself, even supported by reference to the relevant travaux préparatoires. This is unsurprising, as the regime of islands was drafted in an intentionally vague and ambiguous fashion. Some limited guidance can be gleaned from subsequent practice and jurisprudence. However, this experience is somewhat contradictory and unsatisfactory. With regard to State practice, the picture is mixed. On one hand Mexico has opted to ignore a group of 129 small and remote features, Roca Alijos, for the purposes of generating continental shelf and EEZ claims in the Pacific Ocean. The United Kingdom has gone a step further and unilaterally reclassified a similarly small and remote feature, Rockall, from the status of an island within the meaning of LOSC Article 121(1) to an Article 121(3) rock and consequently executed a ‘roll-back’ in its maritime jurisdictional claims from that feature. Other States have, however, taken contrary views and opted to make full 200nm claims (and, in some cases, beyond the 200nm limit in respect of outer continental shelf rights) from frequently remote, uninhabited and small islands. Japan’s Okinotorishima (see Chapter 3.2 above) represents only one of the more extreme examples of this type of practice. State practice on this issue is therefore confused and conflicting. With regard to the jurisprudence of international courts and tribunals, unfortunately an authoritative interpretation of Article 121 from a body such as the ICJ remains lacking, not least because the ICJ has on more than one occasion opted to effectively sidestep the issue. Coastal States are therefore still frequently faced with problematic issues related to islands, especially in the context of the delimitation of maritime boundaries. Practical ways in which such “Trouble with Islands” are dealt with in the context of the delimitation of maritime boundaries are examined in Chapter 4. 130 CHAPTER 4 Islands and the Delimitation of Maritime Boundaries 4.1 An Incomplete Mosaic A key consequence of the enormous extension of maritime claims seawards, particularly as a result of the enthusiastic adoption of 200nm EEZ claims around the world, has been the creation of a multitude of ‘new’ potential maritime political boundaries. Wherever a coastal State’s claims to maritime space abut or overlap with an opposite or adjacent coastal State’s maritime claims, a potential maritime boundary situation exists. With the advance of national maritime claims offshore, coastal States 400nm or more distant from one another suddenly found themselves to be maritime neighbours with potentially overlapping maritime claims to jurisdiction and thus the need for a maritime boundary. Indeed, in the case of ‘outer’ or ‘extended’ continental shelf claims, coastal States whose nearest land territories are located in excess of 700nm distant from one another may have a potential maritime boundary between them (see Chapter 2.5.2). Attaining a clear understanding of the number of potential maritime boundaries worldwide can, however, be challenging as certain assumptions need to be made. For example, if maritime boundaries composed of multiple distinct segments are treated as one boundary (for example treating the potential delimitations between Canada and the 131 United States as one maritime boundary), a figure of 366 can be reached. However, if each individual boundary segment is counted as a separate maritime boundary (Canada and the United States on this basis contributing four to the total),375 the figure rises to 434 maritime boundaries. 376 These figures do not include potential maritime boundaries beyond 200nm from the coast. The latter number is difficult to predict with certainty, given that many coastal States have yet to make extended claims to continental shelf claims.377 While significant progress has been achieved in the delimitation of maritime boundaries with many contentious disputes having been resolved, the task is a daunting one and is currently far from completion.378 Given the relatively recent vintage of the extended maritime claims, many of which have only been advanced since the 1970s, it is unsurprising that the maritime political map of the world, in sharp contrast to the terrestrial political map, is profoundly incomplete.379 It is also worth noting that many of the maritime boundary agreements that have been reached among coastal States are incomplete. Many of the existing delimitations relate either to only part of the length of 375 The four segments being those through the Strait of Juan de Fuca, at the Dixon Entrance, in the Beaufort Sea and in the Gulf of Maine. See, McDorman, T.L., Salt Water Neighbors: International Ocean Law Relations between the United States and Canada, (New York: Oxford University Press, 2009): 163-168, 172-175, 181-195. See also, Gray, D., “Canada’s Unresolved Maritime Boundaries”, Boundary and Security Bulletin, Vo.5, No.3 (Autumn 1997): 61-70. 376 Prescott and Schofield 2005: 244. 377 As noted in Chapter 2, there are up to 74 coastal States that may be in a position to make submissions to the United Nations Commission on the Limits of the Continental Shelf with respect to areas of continental shelf beyond 200nm from their relevant baselines. It is the case, however, that a number of the coastal States included in this list are zone or shelf-locked if equidistance- based maritime boundaries are applied. It remains to be seen whether such boundaries will in fact be delimited or whether the coastal States in question may secure entitlements out to the 200nm limit, thus raising the possibility of outer continental shelf submissions as well as the prospect of outer continental shelf boundaries. 378 Charney and Alexander 1993 and 1998; Charney and Smith 2002; Colson and Smith 2005. 379 Grundy-Warr and Schofield, 2005. 132 the potential maritime boundary. Additionally, numerous maritime boundaries concluded to date are functionally incomplete, dealing with only one zone, such as the continental shelf, as opposed to being a ‘single’ maritime boundary dealing with all relevant maritime zones including both seabed and water column jurisdiction. Additionally, many agreements are interim, not in force or deal with the same boundary. Examples include the multiple boundary agreements concluded between Australia and Indonesia in the Arafura and Timor Seas. While the maritime boundary delimitation agreements concluded between these parties in the 1970s concern their continental shelf rights,380 an EEZ agreement was signed in 1997.381 At the time of writing, the latter agreement is not, however, in force.382 380 Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries, 18 May 1971 (entry into force: 8 November 1973. Treaty text available at  Australian Treaty Series (ATS) 31 and <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS- IDN1971SB.pdf>. See also, Charney and Alexander, 1993: 1195-1205. Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas Supplementary to the Agreement of 18 May 1971, 9 October 1972 (entry into force, 8 November 1973). Treaty text available at  ATS 32 and <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS- IDN1972TA.pdf>. 381 Treaty between the Government of Australia and the Government of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997. Sometimes referred to as the Perth Treaty. For treaty text, see <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS- IDN1997EEZ.pdf>. See also, Charney and Alexander, 2002: 2697-2727. 382 The treaty will require amendment prior to ratification as it was drafted at a time when Indonesia administered Timor L’este (East Timor). Consequently, it makes reference to now defunct arrangements such as the Timor Gap Zone of Cooperation which has been replaced by analogous arrangements between Australia and East Timor. See, the Timor Sea Treaty, Dili, 20 May 2002, available at <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS- TLS2002TST.PDF>; and, the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS), available at, <www.laohamutuk.org/Oil/Boundary/CMATS per cent20text.htm>. See also Schofield, C.H., “Minding the Gap: The Australia – East Timor Treaty on Certain Maritime Arrangements in the Timor Sea”, International Journal of Marine and Coastal Law, Volume 22, No.2 (2007): 189-234. 133 Overall, it is safe to state that fewer than half of the potential maritime boundaries around the world have been even partially delimited.383 4.2 Overlapping Claims and Maritime Boundary Disputes Perhaps inevitably, just as many “new” maritime boundaries have been created, a profusion of overlapping jurisdictional claims and offshore boundary disputes have also emerged as States seek to secure the maximum maritime entitlements for themselves. Consequently, large areas of overlapping maritime claims exist, as do serious bi- and multilateral maritime boundary disputes The exact scope of such overlapping claims areas is, however, often difficult to distinguish. This is frequently because many maritime claims are ill-defined, simply consisting of broad distance-based claims, for instance to a 200nm EEZ. Only rarely do coastal States provide unilateral definitions as to the precise extent of their maritime jurisdictional claims. A degree of educated guesswork is necessary in the analysis of coastal State claims to maritime jurisdiction. 383 Prescott and Schofield, 2005: 217-218; Pratt, M.A. (2008) International Boundaries Research Unit, University of Durham (Personal communication). Based on US Department of State figures updated by the author. See, United States Department of State, “Maritime Boundaries of the World”, Limits in the Seas, No. 108, 1st Revision, (Washington D.C.: Office of the Geographer, Bureau of Intelligence and Research, Bureau of Oceans and International Environmental and Scientific Affairs, 13 November 1990). This analysis was allied to the review of agreements contained in the International Maritime Boundaries series. See, Charney and Alexander, 1993 and 1998; Charney and Smith, 2002; and, Smith and Colson, 2005. This figure excludes the seven potential boundaries of the Caspian Sea, which for this analysis are not considered to be maritime boundaries, as well as potential ‘boundaries’ between coastal states and the International Sea Bed Authority concerning the outer limit of the continental shelf. Additionally, multiple delimitations relating to the same maritime boundary situation are excluded as are internal delimitations such as those amongst the Emirates that now make up the UAE. 134 In the past maritime boundary delimitation, confined in scope to a relatively narrow band of inshore waters, was arguably less problematic on the grounds that there was less maritime space at stake. It is, however, the case that inshore waters tend to be those most intensively used by States and thus accorded most value by them so disputes in respect of overlapping claims to territorial seas of restricted breadth were not unknown. Notwithstanding this observation, there now appears to be considerably more at stake in the delimitation of maritime boundaries between States. Not only are the maritime zones subject to delimitation themselves far broader but offshore activities have become considerably more diverse and offshore resources appreciably more important to the economic well-being of coastal States.384 A key factor driving competing maritime claims and boundary disputes is the desire on the part of coastal States to gain access to marine resources, whether living or non-living. For example, the exploitation of offshore oil and gas is becoming an increasingly important source of energy supplies with around 60 per cent of global oil production now provided through offshore exploitation operations.385 The gradual depletion of on-shore and near-shore, shallow water reserves has led to the oil exploration industry being driven further and further offshore into progressively deeper waters and more hostile environments, which has, in turn, led to some dramatic technological advances in the oil 384 Prescott and Schofield, 2005: 215-216. 385 See, “Offshore oil and gas around the World”, Ministry of Energy, Mines and Petroleum Resources, Government of British Columbia, available at, <http://www.empr.gov.bc.ca/OG/offshoreoilandgas/Pages/OffshoreOilandGasAroundtheWorld.as px>. 135 and gas industry in recent years, particularly in respect of deep and ultra-deep offshore areas.386 Additionally, as alluded to above, competing interpretations of the relevant law of the sea provisions on maritime boundary delimitation may lead to overlapping claims. An example of this is the China-Japan dispute in the East China Sea where the States hold radically different views on the method of maritime delimitation to be applied. Japan bases its claim on equidistance, China on natural prolongation principles which would see a boundary line coincident with the Okinawa Trough, leaving much of the East China Sea on the Chinese side of the line.387 Political, strategic and long-standing historical claims may also make reaching agreement with neighbouring States, or even entering into negotiations, problematic. For example, the United Kingdom remains keen to preserve its claims to the Chagos Archipelago (contested by Mauritius) primarily because of the strategically advantageous position of the islands in the Indian Ocean and presence of a major U.K./U.S. base on Diego 386 The United States Government interprets the term “deepwater” as meaning water depths in excess of 1,000 feet (305m) and “ultra-deepwater” as referring to water depths in excess of 5,000 feet (1,524m). See, McLaughlin, R.J., ‘Hydrocarbon Development in the Ultra-Deepwater Boundary Region of the Gulf of Mexico: Time to Re-examine a Comprehensive U.S.-Mexico Cooperation Agreement’, Ocean Development and International Law, 39 (2008), 1: 1-31, at 1 and ftnt.1. See also, Kelly, P.L. “Deepwater Oil Resources: The Expanding Frontier”, pp. 413-419, in Legal and Scientific Aspects if Continental Shelf Limits, Nordquist, M.H. , Moore, J.H. and Heidar, T.H. (eds), (Martinus Nijhoff Publishers, 2004), at 291-293. 387 See, for example, Donaldson, J. and Williams, A., “Understanding Maritime Jurisdictional Disputes: The East China Sea and Beyond”, Journal of International Affairs, Vol.59, no.1 (Fall/Winter 2005): 135-156, at 148-149; and, Gao Jianjun, “Joint Development in the East China Sea: Not an Easier Challenge than Delimitation”, The International Journal of Marine and Coastal Law, 23 (2008): 39-75, at 60-61. 136 Garcia.388 Historical claims can also prove to be highly contentious. The Philippines claim to territorial sea jurisdiction from its baselines to its so-called “Treaty Limits” established in accordance with treaties between the United States and Spain in 1898 and 1900, and between the United States and Great Britain in 1930 have greatly complicated potential maritime boundary negotiations between the Philippines and its neighbours. This is not least because under this formula the Philippines lay claim to territorial sea rights extending to a maximum of 285nm from its baselines.389 4.2.1 Islands and Maritime Boundary Disputes With regard to islands, sovereignty disputes over islands (see Table 2.1) provide a prime example of the problematic role of historic claims noted above. It is often the case that one State, frequently the one in possession of the disputed feature, denies the existence of the dispute on the grounds of its sovereignty over the disputed feature being “indisputable” and established “from time immemorial”, such that there is nothing to discuss.390 A recent example of this type of behaviour has arisen in the context of outer continental shelf submissions in the South China Sea. On 6 May 2009, Malaysia and Vietnam lodged a joint submission with the CLCS in respect of an area of seabed in the southern South China Sea located seaward of their 200nm limits as measured from the straight baselines fronting their mainland coasts (see Figure 4.1).391 On the following day, Vietnam also 388 Bradley, R.E. (1999) “Diego Garcia – Britain in the Dock”, Boundary and Security Bulletin, 7, 1 (Spring): 82-88. See also, Prescott and Schofield, 2005: 281-282 and 472-473. 389 Prescott and Schofield 2005: 254. 390 Notable examples being the South China Sea islands dispute, the dispute over the southern Kuril Islands/Northern Territories, the Dok-do/Takeshima dispute and dispute over the Falkland Isialnds/Islas Malvinas (see Chapter 1). 391 Joint 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 1982 in respect of the 137 made a separate submission in respect of parts of the northern central South China Sea.392 These submissions provoked a furious response from China. The day after Malaysia and Vietnam delivered their joint submission to the CLCS, China sent a diplomatic note to the Secretary General of the United Nations, stating that China has “indisputable sovereignty over the islands in the South China Sea”, and that, consequently, Malaysia’s and Vietnam’s joint submission “seriously infringed China’s sovereignty.”393 A near- identically worded protest note was also sent by China in response to Vietnam’s submission.394 China’s protests were met with counter-assertions from both Malaysia and Vietnam. Both stated that their submissions “constitute legitimate undertakings” as Parties to LOSC. 395 Vietnam’s diplomatic note also restated Hanoi’s “indisputable sovereignty” over both the Paracel (Hoang Sa) and Spratly (Truong Sa) Islands.396 southern part of the South China Sea, Executive Summary, 6 May 2009, available at, <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm 392 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 1982, Partial Submission in Respect of Vietnam’s Extended Continental Shelf: North Area (VNM-N), Executive Summary, 7 May 2009, available at, < http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e .pdf> . 393 See, Note from the Permanent Mission of the People’s Republic of China addressed to the Secretary General of the United Nations, CML/17/2009, 7 May 2009, available at, <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm>. The note went on to allege that the joint submission “seriously infringed China’s sovereignty, sovereign rights and jurisdiction in the South China Sea” and “seriously requests” the Commission not consider the submission. 394 The English version of China’s reaction is available at <http://www.un.org/depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf> 395 See, Note from the Permanent Mission of Malaysia to the United Nations addressed to the Secretary General of the United Nations, HA 24/09, and, Note from the Permanent Mission of the Socialist Republic of Vietnam to the United Nations addressed to the Secretary General of the United Nations, 86/HC-2009, <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_mysvnm_33_2009.htm>. 396 See, Ibid., Note from Vietnam. 138 Such island sovereignty disputes have proved extremely difficult to resolve, have led to broad areas of overlapping maritime claims, and have complicated efforts towards the delimitation of maritime boundaries in the relevant maritime regions (see Table 2.1). Essentially, where sovereignty over territory that includes a coast is under dispute, it necessarily follows that a maritime dispute also exists in relation to the maritime claims associated with the disputed coastline. Figure 4.1: The Malaysia-Vietnam Joint Outer Continental Shelf Submission Source: Adapted from Bateman and Schofield, 2009. 139 In this context it is worth re-emphasising the fundamental linkage between States and their territory (see Chapter 2.2). Despite the considerable impacts and influences of globalisation, sovereignty and territory remain powerful forces. Profound reserves of patriotism and nationalism are often invested in boundary and territorial disputes which retain the potential to be the focus or trigger for confrontation and conflict. This serves to underscore the need for maritime delimitation and the clear definition of boundaries and jurisdictional limits but simultaneously explains why achieving such agreements can prove challenging. Sovereignty disputes over islands necessarily also result in maritime delimitation disputes in respect of the maritime zones attributable to the contested insular territories. Even where sovereignty over islands is not in dispute, their legal status and associated role in the delimitation of maritime boundaries offers considerable scope for dispute. In this context, different types dispute can be distinguished. For example, disputes have arisen as a consequence of the fact that an island belonging to one State is located in close proximity to the territory of another State or States. Here, the islands in question and their maritime entitlements are the primary cause of the disagreement between the States concerned. Examples of islands provoking this type of dispute include: the United Kingdom’s Channel Islands located in close proximity to the French mainland coast; France’s St. Pierre and Miquelon Islands offshore the Canadian island of Newfoundland; Norway’s Jan Mayen Island, located close to Greenland (Denmark); and, Ukraine’s Serpents’ Island, positioned 19nm offshore the Romanian mainland coast. How these issues were addressed and the how the disputes were resolved is considered below. 140 Singapore’s Pedra Branca, located as it is between the opposite coasts of Indonesia and Malaysia is an example of a developing dispute of this type involving three States.397 Disputes have also arisen regarding the use of islands as appropriate basepoints in, for example, the construction of a provisional equidistance line. The presence of islands in the area to be delimited is frequently raised as a relevant circumstance that may lead to the adjustment of any provisional equidistance line. International courts and tribunals have considered this type of dispute over the role of islands in the delimitation of maritime boundaries on numerous occasions. For example: the Scilly Islands in the Anglo-French Arbitration; the Maltese islet of Filfla and the role of Malta itself in the delimitation of a continental shelf boundary between Malta and Libya; the Kerkennah Islands in the context of the maritime delimitation between Libya and Tunisia; the role of numerous small islets and rocks and Seal Island in particular in the Gulf of Maine Case; the presence of numerous small insular features including low-tide elevations in the area to be delimited in the Qatar/Bahrain Case; and, the Hanish, the al-Tayr and Zubayr Groups and the Dahlak archipelago in the Eritrea/Yemen Arbitration. All of these cases are explored below, together with examples drawn from the abundant State practice that exists on this issue (see below). 397 See, Beckman and Schofield, 2009: 19-26. 141 4.3 The Purpose and Value of Maritime Boundaries The delimitation of maritime boundaries provides clarity and certainty to all maritime States and users and helps to minimise the risk of friction and conflict by eliminating a source of bi-lateral and multilateral dispute. This can, arguably, remove barriers to cooperation, thus enhancing the potential for the sustainable management and governance of the oceans. This, in turn, has the potential to lead to the conservation of marine resources and the environment as well as enhanced maritime and economic security for both coastal and user States. Conversely, lack of delimitation can often lead to extensive overlapping claims to maritime jurisdiction and this situation tends to exacerbate management problems. While a distinction can be drawn between merely undelimited maritime boundaries and active maritime boundary disputes, the existence of broad areas of competing claims to the same maritime space is problematic. Where overlapping maritime claims exist, the resultant uncertainty over jurisdiction may complicate ocean resource management. With regard to living resources, sustainable management of such resources can be severely hampered through, at the least, uncoordinated policies and, at the more severe end of the spectrum, potentially destructive and unsustainable competition for access to the resources in question. Such activities can lead to confrontation between rival fishing fleets and such friction can lead to the involvement of the armed forces of the coastal States concerned with the attendant potential for incidents, clashes and ultimately escalation towards conflict. In short, rival maritime claims can act as a major irritant in bilateral, and indeed multilateral, relations. 142 Perhaps of particular significance to many national policy-makers, the presence of overlapping claims generally tends to prevent access to any hydrocarbon resources that may be present in the disputed area. International oil and gas companies tend to be adverse to conducting exploration operations, let alone exploiting seabed resources, without fiscal and legal certainty and continuity. Such resources located in disputed areas potentially have a crucial role to play in the economic well-being and political stability of the coastal States involved, if the resources can be exploited.398 Furthermore, the jurisdictional uncertainty inherent in areas of overlapping claims has the potential to undermine maritime security as, the LOSC, and coastal States themselves, tend to favour areas within which they can conduct exclusive national maritime enforcement measures, in spite of the way in which the marine environment transcends national maritime claims and boundaries.399 Overlapping claims areas can represent a potential lacunae in maritime enforcement as, where jurisdiction is contested, it follows that surveillance and enforcement will remain similarly uncertain. The counterpoint to this argument is that contested areas may be the focus of the interested parties’ patrol efforts in order for them to bolster their claims to jurisdiction through acts of administration. However, such enforcement efforts are unlikely to be coordinated. Additionally, such a scenario may place rival naval vessels in close proximity providing 398 This remains the case despite widespread concerns over the threat of human-induced climate change, largely attributed to the burning of fossil fuels. At present there appears to be little concerted shift away from fossil fuels to meet human energy consumption requirements. Indeed, with regard to oil and gas, demand appears set to rise rather than decline (see Chapter 5). 399 Oxman, B.H., ‘Political, Strategic, and Historical Considerations’, in Charney and Alexander, 1993, Vol. I: at 4. 143 the potential for friction and even confrontation as each side exerts its enforcement rights in what they regard as rightfully ‘their’ maritime space.400 That being said, it is the case that maritime incidents and armed confrontations at sea are very much the exception rather than the rule. An example of some of the problems that can occur where overlapping claims to maritime jurisdiction exist is provided by the so-called ‘Ambalat dispute’ between Indonesia and Malaysia in the Celebes (Sulawesi) Sea off the east coast of Borneo (Kalimantan to Indonesia). Although the two States had in 2002 resolved their sovereignty dispute over two islands, Pulau Sipadan and Ligitan, through a judgment of the ICJ, the Court was not asked to and therefore did not, delimit a maritime boundary in the area.401 The Ambalat dispute emerged in early 2005 and came to prominence as a result of the two States issuing offshore oil exploration concession blocks which overlapped.402 The full extent of the overlap between the two sides’ maritime claims was, however, uncertain. While Malaysia had issued a map showing its territorial sea and continental shelf claims in 1979,403 the precise extent of Indonesia’s claims were less 400 Schofield, C.H., “Cooperative Mechanisms and Maritime Security in Areas of Overlapping Claims to Maritime Jurisdiction”, pp.99-115 in Cozens, P. and Mossop, J. (eds) Capacity Building for Maritime Security Cooperation in the Asia-Pacific, (Wellington: Centre for Strategic Studies: New Zealand, 2005). 401 See, Pulau Sipadan and Pulau Ligitan Case. 402 The blocks in question were Malaysia’s blocks ND6 and ND7 and Indonesia’s Ambalat and East Ambalat blocks. See, Schofield, C.H. and Storey, I., “Energy Security and Southeast Asia: The Impact of Maritime Boundary and Territorial Disputes”, Harvard Asia Quarterly, Vol.IX, No.4 (Fall 2005): 36-46, at 37-41. 403 The Peta Menunjukkan Sempadan Perairan dan Pelantar Benua Malaysia [Map Showing the Territorial Waters and Continental Shelf Boundaries of Malaysia], often referred to as the Peta Baru [New Map], was published by the Malaysian Directorate of National Mapping in two sheets, 21 December 1979, on file with the author. 144 clear.404 Each side issued multiple diplomatic protest notes and counter-protests to the other and, in Indonesia in particular, the dispute provoked anti-Malaysian street protests, flag-burnings and inflammatory nationalist commentary in the media.405 Both Indonesia and Malaysia also rushed to deploy military forces to the ill-defined disputed area. The inherent dangers involved in having rival naval vessels in close proximity to one another, both engaged in patrolling what they regarded as ‘their’ maritime space and in a context of strained bilateral relations were amply demonstrated by the collision between Indonesian naval vessel KRI Tedung Naga and Malaysian patrol boat KD Rencong, which caused minor damage to both vessels.406 Bilateral steps have been taken to de- escalate the dispute, tensions have eased and maritime boundary negotiations are ongoing. With regard to these negotiations, it is understood that the role of the two formerly disputed islands, Pulau Sipadan and Pulau Ligitan, is a key point of contention in the maritime boundary delimitation negotiations between the two States and the cause of overlapping claims to maritime jurisdiction. The dispute underscores some of the problems that can emerge where maritime boundaries are left undelimited and overlapping claims to maritime jurisdiction persist. 404 In common with many coastal States, Indonesia’s maritime legislation merely states that, for instance, Indonesia claims a 12nm territorial sea and 200nm EEZ. Regarding Indonesia’s territorial sea claims, see Act No.6 of 8 August 1996 regarding Indonesian Waters, available at <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1996_Act.pdf>, at Article 3. Regarding Indonesia’s EEZ claims, see Declaration by the Government of Indonesia concerning the Exclusive Economic Zone of Indonesia, 21 March 1980, Article 1, available at, <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1980_DeclarationEE Z.pdf>) and Act No. 5 of 1983 on the Indonesian Exclusive Economic Zone, 18 October 1983, Article 2, available at, <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/IDN_1983_Act.pdf>. 405 Schofield and Storey, 2005: 37-38. 406 “RI, KL warships collide in Ambalat”, The Jakarta Post, 10, April 2005; and, Schofield and Storey, 2005: 38. 145 The above is not to suggest that the delimitation of maritime boundaries is some kind of panacea which will necessarily engender transboundary maritime cooperation among neighbouring States. Indeed, it can be argued that arbitrary, invisible political boundaries do not readily fit the continuous, fluid ocean environment. Many marine living resources similarly pay scant regard to maritime boundaries and it is also the case that many marine activities are transboundary and transnational in character. Nonetheless, the delimitation of maritime boundaries does provide a clear jurisdictional framework and framework for cooperation. Importantly, even if spatially delimited national maritime spaces are not necessarily the ideal or only way to achieve sustainable oceans management and governance, they are one way to achieve these ends and, crucially, represent the approach generally favoured by States. Overall, maritime boundary delimitation has the potential to contribute towards a stable maritime regime – something that is in the interests of both coastal and user States as this is essential to the functioning of the global economy. Additionally, and no less importantly, maritime delimitation can also help to facilitate the sustainable management and preservation of important ocean resources and enhance global oceans governance. 4.4 The Delimitation of Maritime Boundaries 4.4.1 Relevant International Legal Principles Coastal States are often not able to claim the full extent of their maritime zones because of the proximity of other States. Wherever the maritime claims of neighbouring States 146 overlap, a potential maritime boundary situation exists. In the context of a maritime boundary determined by an international court or tribunal, delimitation depends on applicable international legal principles. These same legal principles are frequently influential in where a maritime boundary is delimited through negotiations between States. However, the States involved have considerable discretion to depart from the international legal principles, so long as the rights of third States are not jeopardised. It is worth emphasising that maritime boundary delimitation through negotiations is essentially a political act. While there are clear and essential legal and technical components to the delimitation of maritime boundaries, it is the political component that is crucial. The delimitation of maritime boundaries between opposite and adjacent States is governed by the international law of the sea and the relevant provisions on this issue as codified in LOSC and developed by courts and tribunals can be regarded as reflecting customary international law. 407 However, the international law rules governing the delimitation of maritime boundaries laid down in LOSC provide only minimalist guidance as to how such disputes may be resolved, particularly in respect of the broad resource-oriented national zones of sovereign rights, the continental shelf and EEZ. 407 See, for example, Brown, E.D., Sea-Bed Energy and Minerals: The International Legal Regime, Vol. 1, The Continental Shelf, (Kluwer /Martinus Nijhoff, 1992) at 360; Elferink, A.G.O. “The Impact of the Law of the Sea Convention on the Delimitation of Maritime Boundaries,” in Vidas, D. and Ostreng, W. (eds.) Order for Oceans at the Turn of the Century (The Fridtjof Nansen Institute, 1999): 457-469, at 462; and, Beckman and Schofield, 2009: 12. Similarly, with the exception of Part XI of the Convention, dealing with seabed mining regime in areas beyond national jurisdiction, the United States has specifically stated that it regards LOSC as reflective of customary international law. See, for example, Roach and Smith, 1996: 4-6 147 4.4.2 Delimitation of the Territorial Sea Where overlapping claims to territorial seas out to 12nm exist, Article 15 of LOSC applies. 408 This article provides that, failing agreement between the States, delimitation should be the equidistance or median line,409 defined as a line “every point of which is equidistant from the nearest points on the [territorial sea] baselines.”410 A median or equidistance line is, therefore, a geometrically exact expression of the mid-line concept.411 Article 15 of LOSC offers a clear preference for the use of equidistance as a method of delimitation for the territorial sea. Departure from the median line may, however, be justified on the basis of the existence of an “historic title or other special circumstances” in the area to be delimited.412 It is notable that when the provisions relating to the delimitation of the territorial sea were discussed at UNCLOS III, the United Kingdom suggested that examples of special circumstances might include the presence of a navigational channel or the presence of small islands.413 This approach has been termed the “equidistance/special circumstances” method of delimitation by 408 LOSC, Article 3 provides that states have the right to establish a territorial sea “not exceeding 12 nautical miles” measured from its baselines. Article 15 of LOSC represents a near verbatim repetition of Article 12 of the 1958 Convention on the Territorial Sea and Contiguous Zone. 409 The terms “equidistance line” and “median line” are used interchangeably in the present context although it is recognised that the latter terms is more commonly applied to equidistance lines between opposite coastlines. 410 LOSC, Article 15. 411 Carleton and Schofield, 2002: 7. See also, Boggs, S.W., “Problems of Water-Boundary Definition: Median Lines and International Boundaries through Territorial Waters”, The Geographical Review, XXVII, 3 (July 1937): 445-456; and, Hodgson, R.D. and Cooper, E.J., “The Technical Delimitation of a Modern Equidistant Boundary”, Ocean Development and International Law, 3, 4 (1976): 361-388. 412 LOSC, Article 15 413 Nandan, S.N. and Rosenne, S. (eds.) United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II (Dordrecht: Kluwer Law International, 1993): 135. See also, Beckman and Schofield, 2009: 11. 148 international courts and tribunals.414 The Court has also stated that Article 15 “is part of customary [international] law.”415 4.4.3 Delimitation of the EEZ and Continental Shelf Under the 1958 Convention on the Continental Shelf, delimitation of the continental shelf was also to be effected by the use of median lines unless agreement to the contrary or “special circumstances” existed that justified an alternative approach.416 UNCLOS III witnessed a lack of consensus on the inclusion of equidistance as a preferred method of delimitation for the continental shelf and EEZ. This translated into the ambiguous wording contained in LOSC. Articles 74 and 83 of the LOSC dealing with delimitation of the continental shelf and EEZ respectively merely call in identical general terms for agreement to be reached on the basis of international law in order to achieve “an equitable solution.” 417 No preferred method of delimitation is indicated. Instead, all potentially relevant circumstances are to be weighed within the delimitation equation with the objective of achieving an equitable result. The marked shift away from equidistance as a preferred method of delimitation, at least in the first instance can be largely attributable to the ICJ’s ruling in the North Sea Continental Shelf Cases of 1969.418 In these Cases, although the ICJ noted that a median line between opposite States usually resulted in an equal division of the maritime space 414 See, for example, the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening),  ICJ Reports, 303 (hereinafter, “Cameroon/Nigeria Case”), at para.288. 415 Qatar/Bahrain Case, para.175. 416 1958 Convention on the Territorial Sea and Contiguous Zone, Article 6. 417 LOSC, Articles 74 and 83. 418 See, North Sea Continental Shelf Cases. 149 involved,419 and that the majority of maritime boundary agreements at the time were based on the equidistance principle,420 the Court concluded that the provisions relating to equidistance in the 1958 Conventions had not become customary international law and was not obligatory.421 International courts and tribunals have termed the method of delimitation applicable to EEZ and continental shelf delimitation as contained in Articles 74 and 83 (and in customary international law) as the equitable principles/relevant circumstances method. For example, in the Cameroon/Nigeria Case the ICJ stated explicitly that: The Court has on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdictions is to be determined. They are expressed in the so-called equitable principles/relevant circumstances method.422 The Court went on to note that this method is “very similar to the equidistance/special circumstances” method applicable in delimitation of the territorial sea.423 The vague nature of these articles, which were among the last to be agreed at UNCLOS III, resulted from disagreement between the negotiating States. The difference of view was essentially between two camps – whilst some States preferred an “equidistance/special circumstances” rule, others favoured delimitation on the basis of 419 North Sea Continental Shelf Cases, para.57. 420 Ibid., para.75. In particular the examples drawn from State practice cited by the parties to the dispute and concluded following the signature of the 1958 Convention on the Continental Shelf. 421 Ibid. paras 70-82 and 101(a). Indeed, the Court asserted that there was “not a shred of evidence” that the States that had agreed to equidistance-based maritime boundary agreements had done so because they “believed themselves to be applying a mandatory rule of customary international law” (Ibid., para.76). 422 Cameroon/Nigeria Case, at para. 288. 423 Ibid. 150 “principles of equity.” The end result was compromise text which places particular emphasis on the objective of the delimitation, utilising an alternative form of words not reflective of either side’s view and thus acceptable to both.424 As the Arbitral Tribunal in the Eritrea-Yemen Arbitration stated in reference to Article 83, this was “a last minute endeavour…to get agreement on a very controversial matter”, and therefore, “consciously designed to decide as little as possible.”425 The LOSC provisions relating to maritime boundary delimitation provide limited guidance to those tasked with seeking a maritime boundary. These provisions can therefore be interpreted in contrasting ways. If one takes a ‘glass half-full’ perspective, they can be viewed as offering great flexibility to coastal States. The counterpoint is that the LOSC provisions on the delimitation of the continental shelf and EEZ are overly vague, providing scant clear guidance, and consequently offer considerable scope for conflicting interpretations leading to maritime boundary disputes. In light of the fundamental flexibility or, alternatively, the inherent vagueness of the LOSC provisions on the delimitation of maritime boundaries, it is unsurprising that State practice in respect of the delimitation of maritime boundaries is characterised by diversity.426 Indeed, the most systematic survey of State practice in maritime delimitation to date reached the conclusion that no normative principle of international law had 424 Beckman and Schofield, 2009: 11-12. 425 Eritrea-Yemen Arbitration, Second Phase, para.116. 426 See, for example, Charney, J.I. “The American Society of International Law Maritime Boundary Project” in G. H. Blake, ed., Maritime Boundaries, (London/New York: Routledge Publishers, International Boundaries Research Unit, 1994), Vol. 5, 1-17. 151 developed that would lead inexorably to determining the specific location of any particular maritime boundary line.427 The lack of specificity in the approach of the ICJ and other international tribunals in the past led to their decisions being criticised for advancing “numerous approaches, rules and concepts” but failing to articulate clear principles, instead producing “a bewildering array of quasi-principles”, leading to considerable uncertainty regarding their delimitation decisions.428 Although the factors, or potentially relevant circumstances, that need to be taken into consideration in the delimitation equation, and lead to the adjustment of, for example, a provisional equidistance line, are theoretically limitless, nonetheless, it has become abundantly clear from the practice of States, allied to the rulings of international courts and tribunals, that coastal geography has a critical role to play in the delimitation of maritime boundaries. Aspects of coastal geography that have proved especially influential include the configuration of the coasts under consideration, the relative coastal lengths and the potential impact of outstanding geographical features, notably islands. 429 The salient role of coastal geography in maritime boundary delimitation is directly linked to the widespread use of equidistant lines. Equidistance lines have proved extremely popular as a method or basis for maritime delimitation in practice. The construction of equidistance lines offer considerable advantages – if there is agreement on the baselines 427 Charney, J.I., “Introduction and Conclusions” in Charney and Alexander, 1993: xlii; see also, Charney, J.I., 1994: 9-10. 428 Townsend-Gault, I. “Maritime Boundaries in the Arabian Gulf”, pp.223-236 in Schofield, C.H., Newman, D., Drysdale, A. and Allison-Brown, J. (eds), The Razor’s Edge: International Boundaries and Political Geography, (Kluwer Law International: The Hague, 2002): 224-227. 429 Prescott and Schofield: 219-222; and Beckman and Schofield, 2009: 12. 152 to be used (see Chapter 2.4.1), there is only one strict equidistance line and this provides the appeal of mathematical certainty and objectivity as well as affording coastal States the not inconsiderable attraction of jurisdiction over those maritime areas closest to them. Equidistance lines can also be flexibly applied and may be simplified, adjusted or modified to take specific geographical circumstances into account.430 In practice the equidistance method has proved more popular than any alternative method and most agreed maritime boundaries are based on some form of equidistance.431 Consequently, equidistance lines are often constructed at least as a means of assessing a maritime boundary situation or as the starting point for discussions in the context of maritime boundary negotiations.432 Such lines have also frequently been adopted as the basis for a final delimitation line. In contrast, the past jurisprudence of international courts and tribunals would seem to indicate that factors such as marked differences between the land areas belonging to each State involved would be unlikely to prove influential in this context.433 Similarly, socio- economic arguments based on disparities in the wealth and size of population of the States concerned that is, that one party to a dispute is relatively economically disadvantaged as compared with the other party to the dispute, have received short shrift before the ICJ. On more than one occasion the Court has held that such factors are not of relevance as they are liable to significant change over time. For example, in the 430 Carleton and Schofield, 2002: 7-31; Legault and Hankey, 1993; Prescott and Schofield, 2005: 236. 431 Legault and Hankey, 1993: 205. For example, of 157 maritime boundary agreements concluded by the year 2000, 124 of them (79 per cent) were based on some form of equidistance line. See, Prescott and Schofield, 2005: 239. 432 Carleton and Schofield, 2002: 54-56. 433 Prescott and Schofield, 2005: 220 and Churchill and Lowe, 1999: 188-190. 153 Tunisia/Libya Case, Tunisia argued its poverty relative to Libya. The Court’s responded that: ...these economic considerations cannot be taken into account for the delimitation of the continental shelf appertaining to each Party. They are virtually extraneous factors since they are variables which unpredictable national fortune or calamity, as the case may be, might at any time cause to tilt the scale one way or the other. A country might be poor today and become rich tomorrow as a result of an event such as the discovery of a valuable economic resource.434 The Court did, however, leave the door slightly ajar to consideration of such factors as relate to fishing, navigation, security or seabed resources as a test of the equitability of the result, ruling that they are generally to be disregarded unless to do so would entail “catastrophic repercussions” for the States concerned and this view was articulated in the Gulf of Maine Case.435 Similarly, it was on the basis of this approach that the Court, when considering such issues in the case between Denmark and Norway concerning maritime boundary delimitation in the area between Greenland and Jan Mayen, took into account fisheries issues in the shape of a migratory stock of capelin in the area to be delimited. This resulted in the final delimitation line being shifted eastwards of the Court’s provisional equidistance line and the division of Zone 1 into two parts so as to ensure equitable access to the fishery (see below and Figure 4.6). 436 Nevertheless, according to this view the delimitation “reaffirmed the irrelevance of socio-economic factors (other than resource-related factors) to equitable maritime delimitation.”437 434 Case Concerning the Continental Shelf (Libya Arab Jamahiriya/Malta), Judgment of 3 June 1985,  ICJ Reports,13, (hereinafter the Libya/Malta Case), para.107. Available at: <www.icj- cij.org>. 435 Gulf of Maine Case, para.237. 436 Kwiatkowska, B., ‘Equitable Maritime Boundary Delimitation as Exemplified in the Work of the International Court of Justice During the Presidency of Sir Robert Yewdall Jennings and beyond’, Ocean Development and International Law, Vol.28: 91-145, at 105. 437 Ibid. 154 It is also the case that the significance of geophysical factors to the delimitation of maritime boundaries, or at least in respect of the delimitation of the EEZ, has declined in importance. Where once arguments based on concepts of “natural prolongation” expressed through the composition (geology) and configuration (geomorphology) of the seafloor were determinative factors in the delimitation of, particularly, continental shelf boundaries,438 to a large extent this is no longer the case. In the Libya-Malta Case of 1985 before the ICJ, Libya contended that a “Rift Zone” lay between the parties of such a profound character, described as a “fundamental discontinuity”, that it should form the basis of the continental shelf boundary between the two States.439 Ultimately, however, the Court decided to do away with geophysical arguments in their entirety, at least in relation to those areas within 200nm of the coast. The Court therefore found that, on the basis of “new developments in international law”, that is, the signature of the LOSC in 1982 and the introduction of the EEZ concept, as there was less than 400nm between the parties’ coastlines, “the geological and geomorphological characteristics of those areas...are completely immaterial”, and that: ...since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding seabed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.440 438 The ICJ, through its Judgment in the North Sea Continental Shelf Cases, had introduced the concept of natural prolongation such that coastal States have rights over that part of the continental shelf that constitutes “a natural prolongation of its land territory” and determined that this should be a key consideration in delimiting the continental shelf. The ICJ ruled that: The ICJ ruled that: “delimitation is to be effected…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 another state.” See, North Sea Continental Shelf Cases, para.101. 439 Libya/Malta Case, para.36. 440 Libya/Malta Case, para.39. See also, Highet, 1993: 177. 155 The Court’s decision was based on the development of the concept of the EEZ introduced as part of LOSC. Thus, whereas previously the geology and geomorphology of the seabed were regarded as highly influential considerations, the rise of the EEZ has led to a reassessment such that geophysical factors are essentially irrelevant to delimitation within 200nm of the coast. The introduction of the EEZ and the 200nm distance principle that this entails has effectively eliminated geophysical factors as relevant circumstances in the applicable equitable principles/relevant circumstances delimitation equation. This development has, with some irony, been referred to as little more than a “disguised throwback to equidistance.”441 Nonetheless, natural prolongation arguments persist, for example, Australia argues that much of the continental shelf underlying the Timor Sea is Australian rather than Indonesian or East Timorese on the basis of natural prolongations arguments. 442 Similarly, both China and the Republic of Korea utilise natural prolongation-based arguments in the East China Sea.443 It is also the case that such factors potentially remain highly relevant to submissions relating to outer continental shelf limits beyond 200 nautical miles from the coast and to the delimitation of continental shelf boundaries on shared margins extending seawards of the 200nm EEZ limit. For example, it has been suggested that “after a hiatus since 1985, geological and geomorphological factors will re-emerge in the law of maritime delimitation of the outer continental shelf.”444 441 Highet, K., “The Use of Geophysical Factors in the Delimitation of Maritime Boundaries”, pp.163-202 in Charney, and Alexander, 1993: 183. 442 See, for example, Schofield, 2007:190-202. 443 See, for example, Donaldson and Williams, 2005: 148-149 and Gao Jianjun, 2008: 60-61. 444 See, Colson, D.A., “The Delimitation of the Outer Continental Shelf Between Neighboring States”, American Journal of International Law, Note, Vol.97 (2003): 91-107, at 107. See also, Colson, D.A., “Delimitation of the Outer Continental Shelf Between States with Opposite or Adjacent Coasts”, pp.287-293 in Nordquist, Moore and Heidar, 2004. 156 Nevertheless, clearer guidance on maritime delimitation has emerged over time as to how international courts and tribunals approach the challenge of maritime boundary delimitation. In particular this can be seen in the, at the time of writing most recent ruling of the Court in the Black Sea Case of February 2009. 4.4.3 The Current Approach In the Black Sea Case the Court articulated a three-stage approach to the delimitation of a maritime boundary. First, and “[i]n keeping with its settled jurisprudence on maritime delimitation”,445 a provisional delimitation line should be established using geometrically objective methods.446 In this context it was stated that “an equidistance line will be drawn unless there are compelling reasons that make this unfeasible in the particular case” [emphasis added].447 This explicit preference for an equidistance line as the starting point for maritime delimitation marks a significant development as it contrasts with previous, rather more circumspect, statements on the part of the Court on this issue. For example, in the Court’s Judgment in the Nicaragua/Honduras Case of 2007, the Court referred to the wide use of equidistance lines in the delimitation of maritime boundaries and the merits, or “certain intrinsic value”, of this method of delimitation on account of its “scientific character and the relative ease with which it can be applied.” However, the Court reached the conclusion that “the equidistance method does not automatically have 445 Black Sea Case, para.118. 446 Ibid., para.116. 447 Black Sea Case, para.116. 157 priority over other methods of delimitation” as “there may be factors which make the application of the equidistance method inappropriate” [emphasis added].448 It can, however, be observed that the provisional line drawn by the Court in the Black Sea Case was not a strict equidistance line from all features in the relevant area as the Court was selective regarding the basepoints to be used (see below). In the same manner in which the ICJ had previously ignored the Maltese islet of Filfla in the Malta/Libya Case (see below), the Court in the Black Sea Case decided not to utilise Serpents’ Island as a basepoint for the drawing of the provisional equidistance line. Giving “specific” attention to Serpents’ Island in the determination of the provisional equidistance line the Court stated: In connection with the selection of base points, the Court observes that there have been instances when coastal islands have been considered part of a State’s coast, in particular when a coast is made up of a cluster or fringe of islands…However, Serpents’ Island lying alone some 20 nautical miles away from the mainland, is not one of a cluster or fringe of islands constituting the “coast” of Ukraine. To count Serpents’ Island as a relevant part of the coast would amount to grafting an extraneous element onto Ukraine’s coast; the consequence would be judicial refashioning of geography, which neither the law nor practice of maritime delimitation authorizes [emphasis added].449 The Court emphasised the point by remarking that: Serpents’ Island cannot serve as a base point for the construction of the provisional equidistance line…since it does not form part of the general configuration of the coast.450 448 Case Concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, para.272, available at, <http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=14&case=120&code=nh&p3=4>. 449 Black Sea Case, para.149. 450 Ibid., para.186. 158 Arguably, to completely ignore part of the coast, that is, Serpents’ Island, also constitutes a judicial refashioning of geography. However, the Court appears to have deemed that the use Serpents’ Island as a basepoint would have had a disproportionate and distorting impact on the construction of a strict equidistance line. Once a provisional, equidistance-based, delimitation line has been established, at the second stage the Court is to assess “whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result.”451 The third stage outlined by the Court in the Black Sea Case, involved the verification of the line resulting potential delimitation line, which may or may not have been adjusted, through what the Court termed a “disproportionality test”452 in order to ascertain that it, …does not, as it stands, 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. A final check for an equitable outcome entails a confirmation that no great disproportionality of maritime areas is evident by comparison to the ratio of coastal lengths .453 The Court did, however, take care to assert that this (dis)proportionality test “is not to suggest that these respective areas should be proportionate to coastal lengths.”454 When it came to applying the “disproportionality test” in the context of the Black Sea Case the Court noted that such a check “can only be approximate” in light of the “[d]iverse techniques” that can be used to assess coastal lengths and the lack of clear requirements 451 Ibid., para.120. At this point the Court cited its earlier Judgment in the Cameroon/Nigeria Case (at para.288) in support of its ruling. 452 Ibid., para.122 and 210-216. 453 Ibid., para.122 and 214-215. 454 Ibid. The Court reinforced this statement by quoting from its Judgment in the Jan Mayen Case (at para.64): “the sharing out of the areas should be proportionate to coastal lengths – not vice versa”. 159 in international law as to whether the “real” coastline or baselines are to be followed or whether coasts relating to internal waters should be excluded.455 The Court found that the ratio of relevant coastal lengths for Romania and Ukraine was approximately 1:2.8, that the ratio of relevant maritime areas of the order of 1:2.1.456 Following careful checking, the Court concluded that this difference between the ratio of relevant coastal lengths and maritime areas did not constitute a disproportion and that consequently no further adjustment to the delimitation line was required at the third stage (see Figure 4.2).457 The three-stage process through which maritime boundary delimitation can be achieved, as established by the ICJ in the Black Sea Case, marks the Court’s clearest expression yet of its approach to the delimitation of maritime boundaries. It also represents a development from previous judgments, both in terms of its emphasis on equidistance as the method of constructing the provisional delimitation line and in its outlining of a three- stage process, as opposed to the two-stage approach that had previously been adopted by the Court. This is not to suggest, however, that the Court has been averse to using the equidistance method as a basis for maritime delimitation in the past. For example, in the case between Malta and Libya in 1985, the ICJ referred back to its 1969 North Sea decision elaborating that as the Court was faced with a delimitation exclusively between opposite States: 455 Ibid., para.212. 456 Ibid., para.215. 457 Ibid., para.216. 160 Figure 4.2: Maritime Boundary Delimitation in the Black Sea Case Source: Adapted from Sketch Maps 8 and 9 of the Judgment in the Black Sea Case458 It is clear that, in these circumstances, the tracing of a median line between those coasts, by way of a provisional step in a process to be continued by other operations, is the most judicious manner of proceeding with a view to the eventual achievement of an equitable result. But that this...should not be understood as implying that an equidistance line will be an appropriate beginning in all cases, or even in all cases of delimitation between opposite States.459 458 Ibid.: 65-66. 459 Libya/Malta Case, para.62. 161 Similarly, in the Gulf of Maine Case, a median line was selected as a starting point for delimitation in the central portion of the Gulf between opposite coasts and later altered in light of other factors.460 The two-stage approach to maritime boundary delimitation referred to above was applied in the Jan Mayen Case concerning maritime delimitation between Greenland and Jan Mayen Island461 in the Qatar/Bahrain Case,462 in the Cameroon/Nigeria Case,463 and in the Guyana/Surinam Arbitration. 464 For example, in the Cameroon/Nigeria Case the Court found that the equitable principles/relevant circumstances method was applicable to the delimitation of “coincident jurisdictions” of EEZ and continental shelf between the parties, that, as noted above, this method was “very similar” to the equidistance/special circumstances method for the delimitation of the territorial sea and that is consisted of:465 460 On examining the geography of the Gulf of Maine area, the Chamber decided that it should be delimited by a line composed of three segments – from the agreed starting point in the Gulf, through the middle of the Gulf to the Gulf’s closing line and from that closing line seaward. The first segment of that line was between the laterally adjacent sections of the two states’ coastlines on the Gulf of Maine. In this area the Chamber rejected the use of an equidistance- based boundary line and instead opted for a ‘straight’ line bisecting the angle between two lines representing the general direction of each states coastline. In the central section of the boundary where the coastal relationship was opposite an equidistance line was applied, modified to reflect the disparity in the two states’ relevant coastal lengths. In the final section, once again between adjacent coasts, a line perpendicular to the bay closing line was chosen rather than a strict equidistance line. 461 Jan Mayen Case, para. 51. 462 Qatar/Bahrain Case, at para. 230. 463 Cameroon/Nigeria Case, at para. 288. See also, In the Matter of the Arbitration between Barbados and Trinidad and Tobago, 11 April 2006, International Legal Materials, Vol. 45 (2006): 800, at para. 242 (hereinafter, Barbados/Trinidad and Tobago Arbitration); and, Prescott and Schofield 2005: 240-241. 464 Arbitral Tribunal Constituted Pursuant to Article 287, and in accordance with Annex VII, of the United Nations Convention on the Law of the Sea in the Matter of an Arbitration between Guyana and Suriname, Award of the Tribunal, 17 September 2007, Permanent Court of Arbitration, available at, <http://www.pca-cpa.org/showpage.asp?pag_id=1147>. 465 Ibid. 162 …first drawing an equidistance line, then considering whether there are factors calling for the adjustment or shifting of that line in order to achieve an “equitable result”.466 Arguably, therefore, the three-stage advocated by the Court in the Black Sea Case, rather than two-stage process previously applied by the Court, represents more of a nuance on the existing approach rather than a radical change in procedure. This is because the third stage really only involves the application of a (dis)proportionality test in order to ensure that the final delimitation line and resultant division of maritime space is equitable when compared with the ratio of relevant coastal lengths. The concept of proportionality has been repeatedly applied in past cases so at most this represents a formalisation of use of this final test of the equitable character of a maritime boundary delimitation line. It is worth noting, however, that the unanimity of the Court in the Black Sea Case invests the decision with considerable weight.467 The counterpoint to this is that the lack of dissenting opinions hampers analysis of the Court’s decision-making. This is because dissenting opinions often offer a valuable ‘window’ into the Court’s thinking on particular aspects of the case. Unfortunately this particular avenue to a better understanding of the Court’s reasoning is closed. In light of the inherent advantages of equidistance as a method of delimitation (though by no means in all cases), as outlined above, the ICJ’s essential return to equidistance as the preferred method of, or at least starting point for, delimitation of the continental shelf and 466 Ibid. 467 Black Sea Case, para.219. 163 EEZ, as evidenced through the ICJ’s ruling in the Black Sea Case, should, therefore, come as no surprise. 4.5 The Treatment of Islands in Maritime Boundary Delimitation What, then, are the international law rules applicable to the delimitation of maritime boundaries involving islands, rocks and low-tide elevations? Fundamentally, the LOSC rules, such as they are, that apply to the delimitation of maritime boundaries outlined above also apply where islands are involved in the delimitation equation. This is, however, only part of the story. There exists abundant experience regarding the treatment of islands in the delimitation of maritime boundaries which is both instructive and can prove influential in respect of dealing with the ‘trouble with islands’ in this context. Despite the absence of an authoritative ruling on how Article 121, paragraph 3 is to be interpreted, international courts and tribunals have on a number of occasions been faced with the question of how islands should be treated in the delimitation of maritime boundaries and have developed ways and means to overcome the challenge of ‘trouble with islands’. Indeed, the presence of islands in an area to be delimited and the potential impact of such features on the division of maritime space between the coastal States concerned have often proven to be the most problematic issues in the negotiation of a maritime boundary agreement. 164 Contentious and seemingly intractable island-related disputes are often why coastal States seek third-party means of dispute settlement. This has, in turn, led international courts and tribunals to develop a number of mechanisms to deal with this scenario. Similarly, in negotiating bilateral maritime boundary agreements, States have faced comparable challenges and adopted numerous and diverse solutions to the potential problems posed by the presence of islands in the area to be delimited. Elements of this past experience are reviewed below. A brief, but systematic, review of the key international cases is provided. These decisions arguably offer more value as precedents applicable to yet to be delimited maritime boundaries since they base their rulings squarely on the relevant international law. Examples are also drawn from State practice. However, in the context of negotiations the States concerned are merely required under international law to negotiate in good faith and may give weight to any factor and decide on any line they choose between them as long as third State rights are not infringed and this may lead to political trade offs impacting on the delimitation line.468 Eminent scholars such as Bowett469 and Prescott and Triggs have cautioned that it is “hazardous”470 to generalise on the basis of State practice. However, in light of the wealth of maritime boundary delimitation agreements and a number of decisions on the part of international courts and tribunals that have successfully dealt with the presence of islands, it is contended that these bear examination for indications as to best practice.471 468 Oxman, 1993: 11-12; Prescott and Schofield, 2005: 223. 469 See Bowett, 1993. 470 Prescott and Triggs, 2005: 3,245. 471 See, Charney and Alexander, 1993 and 1998; Charney and Smith, 2002; and Smith and Colson, 2005. 165 4.5.1 Decisions of International Courts and Tribunals The following sections provide an overview of rulings made by international courts and tribunals relevant to maritime boundary delimitation involving islands. North Sea Continental Shelf Cases472 The role and treatment of islands was not a major issue in the North Sea Continental Shelf Cases. Indeed, in the context of the application of the equidistance method and the similarities and potential differences in approach to the delimitation of boundaries between opposite and adjacent coasts, the Court appeared to discount the importance of “the presence of islets, rocks and minor coastal projections” on the grounds that any “disproportionally distorting” effects caused by such features “can be eliminated by other means”.473 These “other means” were not, however, made explicit. It seems clear that the Court’s view was that islands should cause little trouble and that the presence of small islands in the delimitation equation could be readily overcome. The Anglo-French Arbitration474 In a number of cases islands have been awarded a “half-effect” on the delimitation line. The first example of this was in the Anglo-French Arbitration in relation to the Isles of Scilly.475 These islands are relatively large and populated, consisting of five inhabited islands and around 140 small rocky islets which total approximately 16 km2, with a total 472 North Sea Continental Shelf Cases. 473 North Sea Continental Shelf Cases, para.57. 474 Anglo-French Arbitration. 475 Ibid., at paras. 201-203. 166 population of around 2,000 people. 476 There was no question of classifying the Isles of Scilly as mere rocks.477 The islands were clearly entitled to continental shelf rights. Indeed, the Court noted that both the Isles of Scilly and the French island of Ushant (located off the north-western tip of Brittany and thus essentially the islands directly opposite the Isles of Scilly on the French side), “are islands of a certain size and populated”, such that they “constitute natural geographical facts of the Atlantic region which cannot be disregarded in delimiting the continental shelf boundary without ‘refashioning geography’.” 478 Nonetheless, their impact on the continental shelf delimitation line was substantially reduced by means of the bisector method in recognition of the fact that the Isles of Scilly are located further to the west than is Ushant, creating a “distorting effect.”479 Consequently, the Court decided to “take account of the Scilly Isles as part of the coastline of the United Kingdom but to give them less than their full effect”480 as their geographical location further to the west of the Brittany peninsula represented a “special circumstance.”481 Two equidistance lines were constructed, one giving the Isles of Scilly full effect and one ignoring them (no effect). A line bisecting the angle between the two equidistance lines was then drawn to produce a half-effect line (see Figure 4.3).482 476 See <www.scillyonline.co.uk>. 477 It should be noted that in 1979 LOSC was still being drafted (see Chapter 2). 478 Anglo-French Arbitration, para.248. 479 Ibid. 480 Ibid., para.249. 481 Ibid. para.245. 482 Ibid., paras.253-254. In order to facilitate the construction of these lines, the Isles of Scilly were simplified to a single representative point and an equidistance line was then drawn using this point and an agreed point on the French coast. 167 Figure 4.3: Maritime Boundary Delimitation in the Anglo-French Arbitration Source: Adapted from Carleton and Schofield, 2002: 17. The Anglo-French Arbitration also featured a classic example of the enclaving approach, which was adopted in respect of the Channel Islands. Once again, the islands in question were relatively large and supported a substantial permanently resident population. Taken as a whole, the Channel Islands total area is approximately 130,000km2 with a combined total population of approximately 150,000 people.483 However, having concluded that a median line between opposite mainland coast would result in an equitable delimitation, the Tribunal noted that “...the Channel Islands are not only ‘on the wrong side’ of the mid- Channel median line but wholly detached geographically from the United Kingdom.”484 Consequently, even though the Channel Islands were undoubtedly substantial, populated 483 The populations of the inhabited islands are approximately as follows: Jersey (87,000), Guernsey (60,000), Alderney (2,400), and Sark (600). See <www.jersey.com>; <www.gov.gg/ccm/portal>; <www.alderney.gov.gg>; and, <www.sark.gov.gg>. 484 Anglo-French Arbitration, at para. 199. 168 islands and thus entitled to generate claims to continental shelf rights, the Court ruled that they should be accorded a reduced effect and enclaved. As the Court was tasked with the delimitation of the continental shelf boundary between France and the United Kingdom, it defined such boundaries to the north and west of the Channel Islands, formed by 12nm arcs from their baselines. Following negotiations between the two States, further delimitation agreements were reached with respect to the waters between the Channel Islands and the nearby French coasts to their east, south and southwest, such that the Channel Islands are now wholly enclaved on the French side of the median line constructed between opposite mainland coasts.485 Libya/Malta Case486 Two aspects of the Libya/Malta Case are especially pertinent to the treatment of islands – the Court’s treatment of the Maltese islet of Filfla and the adjustment of the equidistance line between Libya and Malta’s opposite coasts. With regard to the “uninhabited rock of Filfla”,487 which is located off Malta’s southern coast, the delimitation line suggested by Malta was drawn between the normal baselines on the Libyan side and straight baselines joining Filfla to the Malta’s main island coast. Whilst not expressing any view on the validity or otherwise of Malta’s straight baselines 485 Equidistance-based fishery boundaries were established through an agreement between France and the United Kingdom on behalf of Guernsey on 10 July 1992. Exchange of Notes between France and the United Kingdom concerning the Activities of Fishermen in the Vicinity of the Channel Islands, 10 July 1992, entered into force 10 July 1992, U.K.T.S. 1993/66. There is also a territorial sea agreement between France and the United Kingdom on behalf of Jersey on 4 July 2000. Agreement between the United Kingdom of Great Britain and Northern Ireland and the French Republic concerning the Establishment of a Maritime Boundary between France and Jersey, France No.3 (4 July 2000), Cm5024, London: HMSO. 486 Libya/Malta Case. 487 Ibid., para.15. 169 claim, the Court found it “equitable not to take account of Filfla in the calculation of the provisional median line between Malta and Libya.”488 Having constructed a provisional equidistance line (ignoring Filfla), the Court gave consideration to the issue of whether confirming this provisional line as the final boundary line would lead to an equitable outcome. In this context, the Court noted the “considerable disparity” between relevant coastal lengths of the parties – calculated to be around 8:1 in Libya’s favour489 – and found that this constituted “a relevant circumstance which should be reflected in the drawing of the delimitation line.”490 As a result, the equidistance line was shifted 18 minutes of latitude northwards, that is, to Libya’s advantage, giving the Maltese islands less than full effect on the final delimitation line.491 The Court noted that this shift in the location of the boundary line was specifically to take into account the “very marked difference in coastal lengths” and that “the difference is so great as to justify the adjustment of the median line so as to attribute a larger shelf area to Libya” (see Figure 4.4).492 488 Ibid., para.64. In this context the Court explained its ruling by reference to the language used in the North Sea Continental Shelf Cases, namely the need to eliminate the disproportionate effect of certain “islets, rocks and minor coastal projections” (Ibid.; see also North Sea Continental Shelf Cases, para.57). 489 The Court calculated the general direction of the relevant part of the Libyan coast at 192 miles and the relevant part of the Maltese coast at 24 miles. Libya/Malta Case, at para 68. 490 Ibid. 491 Libya/Malta Case, para. 73. 492 Ibid. It is worth noting, however that the Court was simultaneously at pains to point out that “the degree of such adjustment does not depend upon a mathematical operation.” 170 Figure 4.4: Maritime Boundary Delimitation in the Libya/Malta Case Source: Adapted from Carleton and Schofield, 2002: 16. The Court was, however, careful not to provide a direct link between the ratio of relevant coastal lengths and the actual location of the boundary line.493 No precise mathematical formula was mentioned to explain the shift in the location of the median line on the grounds that, because “several considerations” needed to be weighed, it was “not a 493 In the Libya/Malta Case, para. 73. Beckman and Schofield, 2009: 14. 171 process that can infallibly be reduced to a formula expressed in actual figures.”494 Instead, the Court “transposed” the median line 18 minutes of latitude northwards, a shift of “around three-quarters” of the distance between the two “outer parameters” it had identified earlier of the equidistance lines between Libya and Malta and between Libya and Italy (i.e. ignoring Malta). 495 The comparison of relevant coastal lengths and maritime areas apportioned between the coastal States concerned has been used as a means of testing or confirming that the delimitation line defined by the Court is indeed an equitable one – a process generally referred to as the proportionality test.496 Tunisia/Libya Case497 In the Tunisia/Libya Case, the existence of several islands off the Tunisian coast, particularly the island of Djerba and the Kerkennah Islands, and their potential influence on the continental shelf boundary to be delimited by the Court was a key point of contention. During the case, while, predictably, Tunisia argued that these islands should be have a full influence on determining the course of the boundary line, Libya contended that: …in arriving at the general direction of the coastlines, the Island of Djerba invites omission, since it is clearly an exceptional feature and its inclusion would introduce irrelevant complications. Similarly, the Kerkennah Islands should be excluded since they occupy little more than 180 square kilometres.498 494 Ibid. See also, Charney and Alexander, 1993: 1,649-1,662. 495 Ibid. paras.71-72. 496 Gulf of Maine Case; the Libya/Malta Case, Delimitation of the Maritime Areas between France and Canada, Decision of 10 June 1992, 31 International Legal Materials, Volume 31 (1992) (hereinafter, St. Pierre and Miquelon Case) and: 1149; the Cameroon/Nigeria Case and Barbados/Trinidad and Tobago Arbitration. 497 Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 24 February 1982,  ICJ Reports, 18. 498 Ibid., para.79. 172 As the Court essentially relied on the existence of a de facto line dividing offshore petroleum concession areas to determine the course of the first, near-shore part of the boundary, Djerba did not come into the equation.499 With regard to the Kerkennah Islands, the Court noted that the islands lie 11 nautical miles offshore, are separated from the mainland by waters that only rarely reach depth is excess of four metres, and that a “belt” of “shoals and low-tide elevations also extend on the seaward side of the islands themselves…varying from 9 to 27 kilometres in width.”500 The Court defined two lines designed to represent the direction of the Tunisian coast with the same point of origin – one line reflecting the general direction of the coastline of the Tunisian mainland and one using the coastal front provided by the Kerkennah Islands.501 The Court ruled that to utilise the line representing the Kerkennah Islands and the low-tide elevations located to the seaward of them would amount to “giving excessive weight to the Kerkennahs.” 502 A bisector between these two lines then served as the baseline representing the relevant part of the Tunisian coastline and this, in turn, influenced the location of part of the maritime boundary.503 In essence, therefore, the Kerkennah Islands were accorded a half effect on the relevant (seaward) part of the delimitation line defined by the Court, as they influenced the baseline used by the Court to represent the Tunisian coast. 499 Ibid., paras 117-119 and 124. The first part of the boundary therefore follows a bearing of “approximately 26° to the meridian” (Ibid., para.117). 500 Ibid., para.128. 501 Ibid., para. 129. 502 Ibid., para.128. 503 Ibid., at para. 129. The angle of the bisector line was transposed offshore and used to determine the seaward portion of the continental shelf boundary line. See also, Beckman and Schofield, 2009: 14. 173 Gulf of Maine Case504 An alternative approach was applied regarding potentially troublesome insular features in the Gulf of Maine Case between Canada and the United States. Rather than giving problematic insular features full or partial effect, the Court chose to be selective in its choice of contributing basepoints and ignored certain small islands, rocks and low-tide elevations for the purpose of constructing the boundary delimitation line. With regard to the “innermost” part of the Gulf, the Court decided that an equal division of the maritime space would be appropriate. The Court reasoned that this area “constitutes the most appropriate location for the affecting as far as possible – since there is no special circumstance standing in the way – an equal division of the area of overlapping created by the lateral superimposition of the maritime projections of the coasts of the two States.” 505 However, the presence of numerous small islands and rocks off the coasts of both Canada and the United States in this locality dissuaded the Court from applying equidistance as a means of delimitation. The Court reasoned that the application of the equidistance method in this context would mean that the controlling basepoints on either side “would be located on a handful of isolated rocks, some very distant from the coasts, or on a few low-tide elevations,” which in the Court’s view were the type of “minor geographical features” that “should be discounted” in order to achieve an equal division of the maritime space in question.506 504 Gulf of Maine Case. 505 Gulf of Maine Case, at para. 209. 506 Ibid., at para. 210. 174 Additionally, the starting point from which the Court was to delimit a maritime boundary seawards, “Point A” was not an equidistant point, meaning that had the Court opted for equidistance as a method of delimitation for this part of the boundary line there would have been a need to establish a link from point A to any equidistance line defined.507 Instead of equidistance, the Court constructed two straight lines to represent the general direction of the coast within the Gulf of Maine – from Cape Sable to the terminus of the international land boundary on the coast for Canada and from Cape Elizabeth to the same point for the United States.508 Perpendiculars to these two lines were then defined, with the first sector of the maritime boundary being determined as the bisector of the angle between the two perpendiculars.509 This resulted in a line with an azimuth of 139º from the agreed starting point for the maritime boundary offshore. With regard to the central portion of the delimitation line running through the Gulf of Maine, the Court once again rejected the equidistance method. The Court reasoned that equidistance might have been an appropriate approach, were it not for the “geographical reality” that “the back of the Gulf is entirely occupied by the continuous coast of Maine.”510 With the assistance of the technical expert, the Court determined that ratio 507 Gulf of Maine Case, para.20. Point A was defined as 44º11’12”N, longitude 67º16’46”W latitude according to Article II(1) of the Special Agreement between Canada and the United States. See, Special Agreement Between the Government of Canada and the Government of the United States of America to Submit to a Chamber of the International Court of Justice the Delimitation of the Maritime Boundary in the Gulf of Mane Area. Available at: <http://www.icj- cij.org/docket/files/67/9595.pdf>. Point A was “the first point of intersection of the two lines representing the limits of the fishing zones respectively claimed by Canada and the United States when, at the end of 1976, and with effect from the beginning of 1977, they decided upon the extension of their fisheries jurisdiction up to 200 nautical miles” (Gulf of Maine Case, para.20). 508 One from Cape Sable to the terminus of the international land boundary on the coast for Canada and from Cape Elizabeth to the same point for the United States. 509 This resulted in the definition of a line with an azimuth of 139º from the agreed starting point for the maritime boundary, located approximately 30 nautical miles offshore. 510 Gulf of Maine Case, para. 218. 175 between the relevant coastal fronts of the United States and Canada was 1.38:1. The Court determined that it would be appropriate to reduce this ration somewhat, to 1.32:1 , in order to take into account the presence and location of Canada’s Seal Island. A theoretical median line was constructed and then modified to reflect the 1.32:1 ratio. Finally, for the third section of the delimitation line, proceeding offshore beyond the confines of the Gulf of Maine, the Court opted to apply a perpendicular to the Gulf’s closing line but projected seaward from the point at which the 1.32:1 ratio adjusted median line intersects with that closing line. Consequently, it can be concluded that it was the relative relevant coastal lengths of the parties rather than the presence of islands that had a significant impact on the course of the final delimitation line. Canada/France (St Pierre and Miquelon) Case511 In 1972 Canada and France established a territorial sea boundary between the Canadian island of Newfoundland and the French islands of St. Pierre and Miquelon, located just off the Newfoundland coast.512 Negotiations over the delimitation of the maritime area to the south and west of the French islands reached deadlock leading the two States to establish an ad hoc Court of Arbitration, consisting of five judges, to render a binding decision on the dispute. 511 See, St. Pierre and Miquelon Case. 512 Agreement between the Government of Canada and the Government of the French Republic Concerning their Mutual Fishing Relations off the Atlantic Coast of Canada, signed 27 March 1972 (entry into force 27 March 1972). See Charney and Alexander, 1993: 387-400. The 54nm line is predominantly a negotiated rather than equidistant line. The maritime space divided features numerous small insular features some of which were used as basepoints while others were ignored leading to a delimitation line that divides the area in question “roughly equally” (Charney and Alexander, 1993: 387). 176 France argued that St. Pierre and Miquelon be given full effect on the construction of a maritime boundary based on a strict application of equidistance. This would have accorded St. Pierre and Miquelon a 14,500nm2 maritime zone.513 In contrast, Canada argued that the French islands should be enclaved and awarded no more than a 12nm breadth zone around their coasts which would have amounting to a maritime entitlement of approximately 1,070nm2.514 The Court of Arbitration opted for a form of reduced effect, though in a unique and rather unexpected way. The Court’s decision on 10 June 1992, established a single maritime boundary between the parties applicable to both continental shelf and EEZ jurisdiction. An equidistance line boundary was defined between the French islands and the Canadian coastline where they faced one another, with a 24nm-breadth zone around the west of the islands. Towards the south, where the islands and Newfoundland’s coastal front relationship was effectively laterally adjacent, a 10.5nm-wide ‘corridor’ running due south to the 200nm limit of France’s EEZ jurisdiction. The maritime area thus defined by the Court has been likened to an “asymmetrical mushroom” encompassing 3,617nm2 of maritime space.515 Alternative names coined for this remarkable distribution of maritime space include the “keyhole”, “mushroom cloud”, or, with regard to the long corridor of French maritime jurisdiction, the “baguette” (see Figure 4.5)516 513 Charney and Alexander, 1993: 399. 514 Ibid. For background on the emergence of the dispute and on the contending Canadian and French positions see, McDorman, T., “The Canada-France Maritime Boundary Case: Drawing a Line around St. Pierre and Miquelon”, American Journal of International Law, Vol.84 (1990): 157-189, at 158-165 and 170-173. 515 Ibid. 516 Schofield, C.H. and Townsend-Gault, I., “Extending the Baguette: France Plays Leap-Frog on Behalf of St. Pierre et Miquelon”, International Zeitschrift, Vol.5, no.2 (July 2009), available at <http://www.zeitschrift.co.uk/>. 177 Figure 4.5: Maritime Boundary Delimitation and Outer Continental rights off St. Pierre and Miquelon Source: Adapted from Schofield and Townsend-Gault, 2009. 178 The States themselves reacted to the decision with “puzzlement at the rather odd shape of the maritime space appertaining to France.” 517 The Court’s decision was heavily criticised, for example because of how the eastern-facing projection of the coast of Cape Breton Island was ignored. Consequently, mention has been made of “anomalous elements” of the Court’s decision,518 whilst another author speaks of “reasons either laconic or lacking.”519 Other writers have been considerably more scathing, suggesting that the Court was guilty of “naked apportionment”,520 and that its legal reasoning as to the method of delimitation was “cursory at best.”521 However, whilst there was some angst that judicial bodies “appear to have engaged in a principally political operation of apportioning satisfaction, striving for innocuous compromises, instead of rigid legal verdicts”,522 arguably that is what the Court ultimately achieved. Furthermore, while the resulting maritime jurisdictional configuration certainly poses practical problems associated with the management, Canada and France have moved to overcome these 517 de la Fayette, L., “The Award in the Canada-France Maritime Boundary Arbitration, ”, International Journal of Marine and Coastal Law, Vol.8, no.1 (1993): 77-103, at 77. It is worth noting that the author served as legal counsel on behalf of Canada in the case. 518 Evans, M.D., “Less Than an Ocean Apart: The St. Pierre and Miquelon and Jan Mayen Islands and the Delimitation of Maritime Zones”, International and Comparative Law Quarterly, Vol.43 (1994): 678-696, at 684-685. 519 de la Fayette, 1993: 77-103, at 94-99. 520 Marston, G., “St. Pierre Miquelon Arbitration: Canada-France Delimitation Award”, Marine Policy, Vol.17, issue.3 (May 1993): 155-170, at 167. Marston outlines a series of reasons why the Court’s reasoning was “unsatisfactory”, notably in respect of the court’s apparent contention that the entitlement of coastlines is confined to frontal projection, the Court’s “cartographic and optical orthodoxy” evident through its use of meridians to align the corridor as well regarding the proper width of the corridor (Ibid.: 167-168). Consequently, the author questions the equitability of the corridor solution (Ibid.: 167-168-169). 521 Politikas, G.P., “The French-Canadian Arbitration Around St. Pierre and Miquelon: Unmasked Opportunism and the Triumph of the Unexpected”, International Journal of Marine and Coastal Law, Vol.8, no.1 (1993): 105-134, at 132. Politikas notes with derision that for part of the line the Court “eschewed any commentary or justification whatsoever” (Ibid.). 522 Ibid.: 134. Politikas also concludes that the Court suffered from a “equidistance-phobia syndrome” (Ibid.). 179 difficulties through the conclusion of a fisheries accord523 and also an, as yet unpublished, agreement on seabed hydrocarbons. 524 A further complication to the maritime jurisdictional scenario in this part of the northwestern Atlantic has, however, arisen in the shape of a French preliminary submission to the CLCS in respect of areas of outer continental shelf. As the maritime areas of St. Pierre and Miquelon are enclaved within the Canadian 200nm EEZ it appears that France is attempting to ‘leap frog’ Canada’s EEZ (see Figure 4.5).525 Denmark/Norway (Jan Mayen) Case526 In the Denmark/Norway Case the boundary to be delimited was between two islands but of vastly different size and relevant coastal fronts – Jan Mayen and Greenland. Greenland has an area of 2,166,086km2 as compared with Jan Mayen’s area of 377km2.527 In a manner reminiscent of the Libya/Malta Case, the disproportion between the relevant coastal lengths was extreme. Denmark provided figures for relevant coastal fronts, which were not disputed by Norway, of 504.3km for Greenland and 54.8km for Jan Mayen, resulting in a ratio of 9.2:1. 528 Having drawn a provisional median line, the Court proceeded to adjust the line to the east, towards Jan Mayen, using that island’s 523 Procès-verbal Applying the March 27, 1972 Agreement between Canada and France on their Mutual Fishing Relations, in force 14 April 1995, available at, <http://www.treaty- accord.gc.ca/TreatyResult.asp?Type=1&sp=1>. 524 Ted McDorman, personal communication, May 2009. 525 Schofield and Townsend-Gault, 2009. 526 Jan Mayen Case. 527 Area figures according to the CIA World Factbook, 2009. See, <https://www.cia.gov/library/publications/the-world-factbook/geos/gl.html> and <https://www.cia.gov/library/publications/the-world-factbook/geos/jn.html>. 528 Jan Mayen Case, para.61. It is worth noting that the calculation of relevant coastal fronts remains something of an inexact science and this uncertainty has the potential to be problematic in the context of international maritime boundary adjudication. On the issue of determining relevant areas and relevant coastal lengths see, Carleton and Schofield, 2002: 50-57. 180 significantly shorter coast when compared to that of Greenland as a key factor justifying the shift away from strict equidistance as a basis for delimitation (see Figure 4.6). Figure 4.6: Maritime Boundary Delimitation in the Jan Mayen Case Source: Adapted from Carleton and Schofield, 2002: 52. 181 In this instance, therefore, the great disparity in relevant coastal lengths had a direct bearing on the eventual location of the boundary line, as opposed to being merely a test of the equitableness of the boundary line as was the case between Libya and Malta as mentioned above.529 Nonetheless, the Court made it clear that adjusting the median line to take into account the “striking” disparity in coastal lengths “does not mean a direct and mathematical application of the relationship” between the relevant coastal fronts and the position of the boundary line.530 Qatar/Bahrain Case531 While in the Qatar/Bahrain Case the Court gave a number of islands, such as the Hawar Islands full effect in the delimitation of a territorial sea boundary,532 other small islands and particularly low-tide elevations proved to be more problematic. In particular, the Court disregarded the island of Qit’at Jaradah when constructing the territorial sea boundary between the two States. The Court stated that: The next question to be considered is that of Qit’at Jaradah. The Court observes that Qit’at Jaradah is a very small island, uninhabited and without any vegetation. This tiny island, which - as the Court has determined (see paragraph 197 above) - comes under Bahraini sovereignty, is situated about midway between the main island of Bahrain and the Qatar peninsula. Consequently, 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 . . . In similar situations the Court has sometimes been led to eliminate the disproportionate effect of small islands (see North Sea Continental Shelf; I.C.J. Reports 1969, p. 36, para. 57; Continental Shelf (Libyan Arab JamahiriyalMalta), Judgment, I. C. J. Reports 1985, p. 48, para. 64). The Court thus finds that there is a special circumstance in this case warranting 529 Jan Mayen Case, paras. 61-69. 530 Ibid., paras. 67 and 69. 531 Qatar/Bahrain Case, ICJ Reports  40 at 109. 532 Ibid., para.243. 182 the choice of a delimitation line passing immediately to the east of Qit’at Jaradah.533 The Court also had to contend with the issue of the presence of another “sizable maritime feature” located partially within the territorial sea of Bahrain.534 In view of the potential “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”, the Court ruled that Fasht al Jarim should have no effect on determining the course of the maritime boundary line.535 Cameroon/Nigeria Case536 The ICJ’s Judgment in the Cameroon/Nigeria Case is very useful in that it provides a clear statement of the Court’s approach to maritime delimitation through the “two-stage” process as outlined above. Islands were not, however a factor in the boundary line drawn by the Court so this ruling is silent on the treatment of insular features in maritime delimitation. The Court’s “two-stage” approach as articulated in this case now appears to have been superseded by the “three-stage” approach adopted by the ICJ in the Black Sea Case (see below). Eritrea/Yemen Arbitration537 This arbitration consisted of two phases: in the first phase the sovereignty dispute over islands in the Red Sea was resolved and in the second phase a maritime was delimited.538 533 Ibid., at para.219. 534 Ibid., at para.245 535 Ibid., at para.248. 536 See, for example, the Cameroon/Nigeria Case. 537 Eritrea-Yemen Arbitration, Second Phase: 983. 538 Arbitration between Eritrea and Yemen, Award of the Arbitral Tribunal in the First Stage (Territorial Sovereignty and Scope of Dispute) of 9 October 1988 and Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), Award of 17 December 183 With regard to the role of islands in the maritime delimitation phase, numerous islands were present in the area to be delimited and these were dealt with in distinctly differing ways. While the islands making up the Dahlak archipelago were accorded a full effect, the Hanish Islands were given a reduced effect and the islands of al-Tayr and the Zubayr group had no effect on the course of the delimitation line. The Dahlak islands were described by the Tribunal as being a “tightly knit group of islands”, something termed a “carpet” of islands and islets according to Eritrea, boasting a “considerable” population.539 Finding that the Dahlaks form “an integral part of the coastal configuration”,540 the Tribunal used basepoints along the normal baseline of the outer Dahlak islets.541 In respect of the Hanish Islands, the Arbitral Tribunal arguably employed a type of reduced effect and semi-enclaving type of solution, though not explicitly. The Hanish Islands were given effect in the delimitation of the territorial sea boundary, but were ignored for the purposes of constructing the EEZ boundary between mainland coastlines located to the north.542 In the Eritrea/Yemen Arbitration, the Court of Arbitration was also faced with the issue of small, isolated and uninhabited features in the central part of the maritime area to be 1999, both awards available at, <http://www.pca-cpa.org/showpage.asp?pag_id=1160> (hereinafter, Eritrea/Yemen Arbitration). 539 Ibid., para.139. 540 Ibid. 541 Ibid., para.146. The Tribunal did discuss Eritrea’s “somewhat unusual” system of straight baselines and contention that the outlying Negileh Rock should provide basepoints. The Tribunal opted not to use either Eritrea’s straight baselines or Negileh Rock, having found the latter feature “appears not to be above water at any state of the tide” (Ibid., paras 140-145). 542 Ibid., paras. 154-162. 184 delimited. As noted above, there exist examples of international courts and tribunals according reduced effect to islands located on the “wrong” side of a median line between mainland coasts with the treatment of the Channel Islands in the Anglo-French Arbitration providing a classic example (see above). In the Eritrea/Yemen Arbitration, the Court’s response was to give the features concerned, the al-Tayr and Zubayr Groups, no effect on the boundary line,543 and instead define a “mainland coastal median, or equidistance, line” boundary between the opposite mainland coasts.544 Barbados/Trinidad and Tobago Arbitration.545 Both Barbados and Trinidad and Tobago are States composed of islands, with the latter being an archipelagic State.546 The Award emphasised the role of geographic factors on the delimitation of maritime boundaries, 547 and articulated a two-stage approach to delimitation. 548 The Tribunal delimited a single, equidistance-based, but adjusted, boundary line. The relevant circumstance that led to an adjustment in the provisional equidistance line essentially related to a disparity in the lengths of the relevant frontages,549 with regard to which the Tribunal noted there were “no magic formulas” as 543 Ibid., at paras. 147-148. 544 Ibid., at para. 152. Inhabited islands in close proximity to the coast, such as the numerous islands that make up the Dahlak archipelago and Yemen’s large Kamaran Island were, however, given effect. See ibid., at para. 150. 545 Barbados/Trinidad and Tobago Arbitration, <http://www.pca- cpa.org/upload/files/Final%20Award.pdf>. 546 See, Archipelagic Waters and Exclusive Economic Zone Act, 1986, Act No. 24 of 11 November 1986; and Archipelagic Baselines of Trinidad and Tobago Order, 1988 Notice nº 206 of 31 October 1988(1), both available at, < http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/TTO.htm >. 547 Ibid., paras 230-234. 548 Ibid., paras 236-240. 549 Ibid., para. 372 185 to precisely what adjustments should be made,550 rather than an issue related to the treatment of islands per se.551 Black Sea Case The Black Sea case has been detailed above. With regard to the treatment of islands specifically two points are worth emphasising. First, while the Court adopted a clear three-stage approach to maritime delimitation, it was selective in its choice of basepoints for the construction of the provisional equidistance line. In a manner analogous to the Court’s treatment of Malta’s islet Filfla in the Libya/Malta Case (see above, Figure 4.2), the Court in the Black Sea Case was selective over which basepoints should contribute to the construction of the provisional equidistance line. Serpents’ Island was ignored for these purposes.552 Second, with regard to the treatment of Serpents’ Island in terms of its impact (or otherwise) on the final delimitation line, the island was essentially ignored in the delimitation of the maritime boundary, save for the generation of a 12nm territorial sea. The Court concluded that: “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.”553 From the starting point for delimitation at the agreed “meeting point” of the territorial 550 Ibid., para.373. 551 For a detailed treatment of the case see, Kwiatkowska, B., “The 2006 Barbados/Trinidad and Tobago Award: A Landmark in Compulsory Jurisdiction and Equitable Maritime Boundary Delimitation”, International Journal of Marine and Coastal Law, Vo.22, no.1 (2007): 7-60. 552 Black Sea Case, para.149 and 186. 553 Ibid., para.188. 186 seas of Romania and Ukraine,554 the delimitation line “follows the 12-nautical-mile arc around Serpents Island.”555 Serpents’ Island was therefore slightly semi-enclaved. As noted in Chapter 3, however, the Court decided that it did not need to rule on the issue of whether this feature constitutes an island capable of generating EEZ and continental shelf claims or a “rock” within the meaning of LOSC, Article 121(3). 556 4.5.2 State Practice Involving Islands Many of the same mechanisms for dealing with islands in the context of maritime boundary delimitation that have emerged in the jurisprudence outlined above have also been employed in State practice. The practice of States in their treatment of islands in the context of the delimitation of their maritime boundaries has, however, been notably diverse. This observation also applies to the method of delimitation adopted and the weight and significance attached to islands in the delimitation equation. It can, nevertheless, be noted that equidistance, or variants thereof, represents by far the most popular approach. What follows is a necessarily brief and incomplete overview of State practice in the treatment of islands in maritime delimitation. It is not intended to be either systematic or comprehensive. Instead, it is designed to highlight some pertinent examples and trends in practice. 554 Located at 45° 05' 21" N and 30° 02' 27" E, as defined in the parties Article 1 of the 2003 State Border Régime Treaty. See, Black Sea Case, para.205. 555 Ibid., para.206. 556 Ibid., para.187. 187 Islands Accorded Full Effect There exist numerous examples of islands being given full effect in maritime boundaries agreed upon between States. Many of these situations have involved islands belonging to each party or there has otherwise existed some equivalence between relevant coastlines of the parties,557 but this has not always been the case. There exist examples in State practice of extremely small and uninhabited features accorded full, or substantially full, effect in the delimitation of maritime boundaries, even when pitted against significantly larger coastal features. For example, in the boundary delimitation between Australia and France concluded in 1982, 558 one of the Australian basepoints is of particular note. The Australian feature in question, Middleton Reef is located 125nm from Australia’s mainland coast and 35nm from Elizabeth Reef. According to the relevant Australian Pilot, charts and plans, Middleton Reef appears to be a low-tide elevation 559 and has been described as “periodically submerged.”560 As a low-tide elevation, located over 12nm from the nearest mainland or island baseline, in accordance with LOSC Article 13(2), Middleton Reef has 557 An example being the maritime boundary delimited between France (on behalf of French Polynesia) and the United Kingdom (on behalf of the Pitcairn Islands), where small islands existed on both sides. See, Convention on Maritime Boundaries between the Government of the French Republic and the Government of the United Kingdom of Great Britain and Northern Ireland, 25 October 1983, (in force, 12 April 1984), available at, <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/FRA- GBR1983MB.PDF>. 558 Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, 4 January 1982 (in force 10 January 1983). Technically, at the time of the 1982 agreement, the boundary was between the French EEZ and the AFZ. Treaty text available at [1994- ATS 11 and <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/AUS- FRA1982MD.pdf>. See also, Charney and Alexander, 1993: 1,185-1,194. 559 See Prescott, J.R.V., “The Uncertainties of Middleton and Elizabeth Reefs”, Boundary and Security Bulletin, 6, 1 (Spring 1998): 72-77. 560 See, Kaye, S.B., Australia’s Maritime Boundaries, (2nd edition, Wollongong Papers on Maritime Policy, No.12, (Wollongong: Centre for Maritime Policy, 2001), at 149. 188 no capacity to generate claims to maritime jurisdiction (see Chapter 3.6). Nonetheless, it appears to have been accorded full effect for the construction of an equidistance line maritime boundary. Even if small rocks are, in fact, present on Middleton Reef, as has been suggested by Prescott, this would still mean that a tiny island or rock has been accorded full effect in the context of the delimitation of an EEZ maritime boundary.561 Similarly, Aves Island, located centrally in the Eastern Caribbean, despite being no more than a sandy cay located 235nm from the nearest Venezuelan territory, has been given full effect, or substantially full effect, in the delimitation of maritime boundaries between Venezuela and the Netherlands, France and the United States.562 Antigua and Barbuda, St Kitts and Nevis and Saint Vincent and the Grenadines have all protested the use of Aves Island, as a basepoint for claims to continental shelf and EEZ rights.563 A further example of this trend in State practice is provided by Fiji’s Theva-I-Ra, a 1,000 m long cay 1.8 metres in elevation and reportedly overtopped by waves during severe storms, that was used as a basepoint in the delimitation of a maritime boundary with France (on behalf of New Caledonia).564 561 Prescott, 1998: 72. Prescott states that Laser Airborne Depth Soundings may indicate the presence of small rocks standing above high tide on Middleton Reef. 562 Prescott and Schofield, 2005: 348. See also, Charney and Alexander, 1993: 603-614, 615-638, and 691-704. 563 Bradley, et al., 1999: 331. 564 Prescott and Schofield, 2005: 58-59. 189 Partial Effect In a manner analogous to several of the decisions of international courts and tribunals outlined above, islands have been awarded a partial effect on the construction of maritime delimitation lines in negotiated boundaries. This has often been achieved where a maritime boundary line has been based on the equidistance method and the strict equidistance line modified to award the island or islands in question a reduced effect. Frequently, a ‘half-effect’ has been awarded to islands.565 Half-effect is, however, by no means obligatory when partial effect to islands is applied. For example, in the Sweden-USSR maritime delimitation agreement, the islands of Gotland and Gotska Sandon were awarded a three-quarters effect on the final delimitation line.566 These Swedish islands are relatively large and well populated with Gotland being 3,140 km2 in area with a population of 57,488 according to a 2005 assessment.567 The three-quarters weighting was achieved by constructing two equidistance lines – one the islands full effect and the other ignoring them, and then defining a 75 per cent effect line between the aforementioned two lines. Enclaving As outlined above, especially in the context of the Tribunal’s treatment of the Channel Islands in the Channel Arbitration, another solution applied has been to partially or wholly enclave island features. The fundamental intent and effect of such a method, which, once again, is often applied in conjunction with some form of equidistance, is to 565 For a detailed analysis of half-effect applied to equidistance lines, see Beazley, P.B., “Half-Effect Applied to Equidistance Lines” International Hydrographic Review, Volume LVI (1979): 153- 160. 566 Charney and Alexander, 1993: 2059-2061 and 2063-2064. 567 See <www.Gotland.info>. 190 eliminate inequalities and reduce the maritime area falling to the State whose islands are enclaved relative to the application of strict equidistance.568 Enclaving is particularly appropriate where small islands exist in close proximity to a potential median line, for example, between opposite mainland coasts. A classic example of semi-enclaving is provided by the 1968 Iran-Saudi Arabia continental shelf boundary agreement.569 As part of the agreement a sovereignty dispute over two small islands, Farsi and Al-‘Arabiyah, was resolved with each State being allocated sovereignty over one island.570 As the two islands were located in the central part of the Gulf, it was decided to delimit the majority of the 138.7nm long continental shelf boundary, the longest in the Gulf, on the basis of equidistance between the parties’ mainland coasts,571 and to partially enclave the islands. This was achieved through the construction of an equidistance line between the two islands themselves, and describing 12nm territorial sea arcs from them.572 This method of delimitation was also applied in the continental shelf boundary agreement between Italy and Tunisia in 1971,573 where four Italian islands – Pantelleria, Linosa, 568 Legault and Hankey, 1993: 212. 569 Agreement concerning the sovereignty over the islands of Al-‘Arabiyah and Farsi and the delimitation of the boundary line separating submarine areas between the Kingdom of Saudi Arabia and Iran, signed 24 October 1968, entered into force: 29 January 1969, available at <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/SAU- IRN1968SA.PDF>. 570 Farsi was allocated to Iran and Al-‘Arabiyah to Saudi Arabia. 571 The Iranian Island of Kharg was, however, given a half effect on the northern quarter of the boundary. See, United States Department of State, “Continental Shelf Boundary: Iran-Saudi Arabia,” Limits in the Seas, No. 24 (Washington D.C.: Office of the Geographer, Bureau of Intelligence and Research, 1970). 572 See Beckman and Schofield, 2009: 15. 573 Agreement between the Government of the Republic of Tunisia and the Government of the Italian Republic concerning the Delimitation of the Continental Shelf between the two Countries, signed 191 Lampione and Lampedusa – located centrally in the Channel of Sicily, were accorded a reduced effect and semi-enclaved. Figure 4.7: Maritime Boundary Delimitation between Italy and Tunisia Source: Adapted from Carleton and Schofield, 2002: 20. Islands Ignored An example of ignoring islands in the delimitation of maritime boundaries is the continental shelf boundary agreed between Iran and Qatar in 1969, where the parties agreed to delimit their common boundary on the basis of equidistance but to disregard all 20 August 1971, entered into force: 6 December 1978, available at, <http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/TUN- ITA1971CS.PDF>. 192 islands, rocks, reefs and low-tide elevations as basepoints. The resulting boundary is, therefore, equidistant from the nearest points on Iran and Qatar’s mainland coastlines.574 4.6 Conclusions 4.6.1 The Treatment of Islands in Maritime Delimitation From this review it becomes clear that several means of addressing the ‘trouble with islands’ in maritime delimitation emerge: • Awarding all features, including small offshore islands, full effect • Applying partial effect to islands • Enclaving or partially enclaving islands • Ignoring islands in selecting basepoints relevant to maritime delimitation Although definitive conclusions regarding the treatment of islands in the delimitation of maritime boundaries remain rather elusive, there has been a sustained trend in international jurisprudence towards awarding small islands a reduced effect in maritime boundary delimitation. This has proved to be especially the case where such islands are located at a considerable distance offshore and opposed to mainland coasts such that a great disparity in relevant coastlines is evident. Such features would tend to have a disproportionate impact on the construction of an equidistance-based boundary line. Consequently, the potential influence of such exceptional features on maritime boundary delimitation lines has generally been discounted. Thus islands were awarded a reduced 574 Charney and Alexander, 1993: 1,511-1,518. 193 effect in the Libya/Malta and Jan Mayen Cases, half effect was accorded to the Isles of Scilly in the Channel Arbitration, to the Kerkennah Islands in the Libya/Tunisia Case and to Seal Island in the Gulf of Maine Case. Moreover, the Channel Islands were enclaved in the Anglo-French Arbitration, while the Hanish Islands were semi-enclaved in the Eritrea/Yemen Arbitration and arguably St Pierre and Miquelon were semi-enclaved (to the west if not to the south) in the Canada/France Case, as was Serpents’ Island in the recent Black Sea Case. Furthermore, islands have, on occasion, been entirely ignored for the purpose of constructing the maritime boundary delimitation line, for instance in the context of the Gulf of Maine Case where numerous small islets and low-tide elevations were ignored, in the Eritrea/Yemen Arbitration where isolated islands had no influence on the delimitation line and in the Qatar/Bahrain Case where a potentially influential small island, Qit’at Jaradah, was discounted. In contrast, where numerous islands which in combination have a long coastal front are located in relatively close proximity to a mainland coast such that they can be considered to be representative of the general configuration of the mainland coast or effectively geographically integrated with it, there is a tendency to accord such islands full weight in maritime delimitation. A salient example of this type of scenario is provided by the Tribunal’s treatment of the Dahlak archipelago in the Eritrea/Yemen Arbitration (see above).575 As seen above, there are numerous examples of islands being accorded a reduced effect, being partially or wholly enclaved or even being ignored altogether. State practice is 575 Eritrea/Yemen Arbitration, paras 139-145. 194 diverse, and there have been cases of even extremely small features being accorded considerable effect in the delimitation of maritime boundaries. Nonetheless, these examples in State practice are the exception than the rule and the general trend in State practice in the treatment of islands appears to be toward giving islands a reduced effect. This is especially the case in respect of smaller, less significant (in terms of coastal front, area and population for instance) islands located at considerable distances offshore mainland coasts, as these features would be likely to have the most excessive and disproportionate impacts on potential delimitation lines were they to be granted full effect. 4.6.2 Implications for Insular Status International courts and tribunals have tended to address the potentially disproportionate effect of particular, outstanding coastal geographical features, frequently islands, by according them reduced effect on the final delimitation line. This is often achieved by constructing strict equidistance lines and then modifying the line so as to give the feature concerned only partial effect. Table 4.1 provides a brief summary of how islands have been treated by interational courts and tribunals in the delimitation of maritime boundaries. While by no means conclusive, this exercise does provide a potentially useful benchmark against which other insular features may be compared and assessed. As Table 4.1 indicates, in a number of these cases islands of varying size and capacity to support human habitation and economic life have been accorded at least some impact, though often reduced, on the maritime boundary lines in question. 195 Table 4.1: The Role of Islands in the Delimitation of Maritime Boundaries Case Islands Distance to coast Area Populate d Effect on delimitation Anglo-French Arbitration Channel Islands 12nm off the mainland coast of France, c.87nm south of the mainland coast of the UK 130,000km2 Yes (c.150,000) Nil, enclaved Isles of Scilly 21nm from UK mainland coast 16 km2 Yes (c.2,000) Half effect Libya/Malta Filfla 5km offshore Malta 0.06km2 No Nil Malta 340km (183nm) from the nearest point on the coast of Libya c314km2 Yes (c.400,000) Partial (around three-quarters) Tunisia/Libya Kerkennah Islands 11nm off Tunisian mainland coast 180km2 Yes (c.14,000) Half Gulf of Maine Case Islets in the inner Gulf Variable but mainly within 12nm of coast _ No Nil Seal Island 16nm from Nova Scotia Yes Half Canada/France Arbitration St. Pierre and Miquelon 12nm offshore Newfoundland 242km2 Yes (c.7,000) Partial, enclaved Denmark/Norway Jan Mayen c.500km east of Greenland and 600km north of Iceland 377km2 No (18 government personnel only) Partial Qatar/Bahrain Hawar Islands 1.4km off the Qatari mainland 50.6 km² Yes (c.4,000) Nil for EEZ, full effect for territorial sea Qit’at Jaradah No Partial. Fasht al Jarim Within 12nm of coast Less than 1km2 No Nil. Eritrea/Yemen Dahlak archipelago Close to coast and “integral part of general coastal configuration” (para.139) Two large and 124 small islands Yes (“considerab le” according to Tribunal) Full. Hanish Islands 16nm (30km) from Yemeni and 22nm (40km) from Eritrean mainlands 120km2 (Jabal Zuqur island) No Nil for EEZ, full effect for territorial sea al-Tayr “barren”, “inhospitable” and “well out to sea” (para.147) Less than 1km2 No Nil Zubayr Group As above As above No Nil Black Sea Case Serpents’ Island 19nm off the Romanian mainland coast 0.135km2 No (govt. personnel only) Nil for EEZ, full effect for territorial sea Sources: See Section 4.5.1 above 196 Where these maritime delimitations involve the continental shelf and EEZ, this necessarily implies that the court or tribunal concerned has taken the view that the feature in question is an island within the meaning of LOSC, Article 121(1) rather than a rock in accordance with LOSC, Article 121(3). Islands that fall into this category include the Scilly Isles belonging to the United Kingdom, Tunisia’s Kerkennah Islands, Canada’s Seal Island, France’s St. Pierre and Miquelon Islands, Norway’s Jan Mayen Island, and the islands of the Dahlak archipelago. Perhaps of particular significance in this context are those islands located at a considerable distance offshore such as the Isles of Scilly, St. Pierre and Miquelon and Jan Mayen. Whilst the Isles of Scilly and St. Pierre and Miquelon have fairly substantial populations (numbering in the thousands of people) of longstanding, it can be observed that Jan Mayen does not, boasting only personnel stationed there to man a scientific research station.576 It is also notable that Jan Mayen is a mere 377km2 in area as compared with Greenland’s area of 2,166,086km2.577 The disparity between the lengths of the relevant coastal fronts of the two islands was also significant (9.2:1 in Greenland’s favour). This decision seems to run somewhat counter to the trend, even if Jan Mayen was accorded a reduced effect, largely on the basis of the great disparity in relevant coasts, in delimiting the maritime boundary line between Denmark (Greenland) and Norway (Jan Mayen) (see above). 576 It can, however, be observed that the disputes involving St. Pierre and Miquelon Islands and Jan Mayen Island are arguably distinct from other types of dispute involving the role of islands in maritime delimitation as in respect of those two cases the role of the islands in question were the primary point of contention in the dispute rather merely being but one factor in an overall maritime boundary delimitation between, for example, opposing mainland coasts as was the case for the Isles of Scilly in the Anglo-French Arbitration. 577 Area figures according to the CIA World Factbook, 2009. See, <https://www.cia.gov/library/publications/the-world-factbook/geos/gl.html> and <https://www.cia.gov/library/publications/the-world-factbook/geos/jn.html>. 197 In the context of the above-mentioned cases a number of insular features have also been accorded no weight in maritime delimitation beyond the territorial sea. It is, however, less easy to draw clear implications and conclusions from these findings, at least as far as Article 121 of LOSC is concerned. This is because the islands in question may have been given no weight in the construction of the relevant continental shelf or EEZ delimitation line for reasons other than their not qualifying as islands capable of continental shelf or EEZ claims. For example, islands are frequently discounted or ignored in the delimitation of maritime boundaries where their geographical position is such that taking them into account in the construction of a strict equidistance line-based boundary would lead to an inequitable result, rather than because such features are mere rocks within the meaning of LOSC, Article 121(3). It is the case that an international court or tribunal has yet to specifically discount an island on the basis that it is a “rock” within the meaning of Art.121(3) of LOSC. 4.6.3 The Value of Precedents from Case Law and State Practice The value of the above experience in terms of precedents for yet to be delimited maritime boundaries and the treatment of islands is questionable. Strictly speaking, the arbitral and judicial decisions are only binding on the parties to the particular case and each case features its own particular facts and circumstances. Nonetheless, the decisions of the ICJ and ad hoc international arbitration tribunals are clearly influential – as demonstrated by the written and oral pleadings which are replete with references to past cases and judgments in support of either side’s arguments. According to one eminent commentator, the rulings of such international courts and tribunals “carry special weight in international 198 maritime boundary law” largely because of the “relative scarcity of authoritative pronouncements.”578 The same author goes on to observe that there are two key reasons for this: first, the existence of “a unique line of jurisprudence” stemming from a continuing series of decisions and, second, “the absence of clearer guidance from codification efforts, opinion juris and state practice,”579 such that: Even though there is no doctrine of stare decisis in international adjudication, it is not inaccurate to consider the impressive line of maritime boundary decisions as forming a common law in the classic sense.580 The decisions of international courts and tribunals are capable of comparison and are likely to hold more value as potential precedents. In contrast, negotiated maritime boundary agreements frequently do not indicate the rules or principles on which they are based and, therefore, it is often unclear whether other factors, such as, for example, political or economic considerations unrelated to the delimitation question may have come into play: “While the Court and arbitration tribunals are required to apply the law, coastal states have greater latitude when fashioning voluntary settlements.” 581 Consequently, State practice should be treated with caution with regard to its precedential value. While this is the case, State practice can, nonetheless, be helpful in providing examples of what the parties to a particular agreement have deemed to be an equitable result and this can be useful in the context of maritime boundary delimitation negotiations. 578 Charney, J.I., “Progress in International Maritime Boundary Delimitation Law”, American Journal of International Law, Vol. 88 (1994): 227-256, at 227. 579 Ibid.: 227-228 (footnote deleted). 580 Ibid.: 228 (footnote deleted). 581 Ibid. (footnote deleted). 199 4.6.4 Practical Implications What, then, are the implications arising from the foregoing analysis? That is, what are coastal States to do when faced with the prospect of delimiting maritime boundaries with neighbouring States where islands are present in the delimitation equation,? The practice in the delimitation of maritime boundaries generally indicates that application of the equidistance method has proved significantly more popular as the basis for international maritime boundary agreements over time.582 As geometrically exact expressions of the midline concept, equidistance lines offer objectivity, mathematical precision and, assuming agreement exists with regard to relevant baselines, lack of ambiguity.583 This is especially the case for delimitations between opposite coasts where equidistance-based solutions represent the dominant approach to an overwhelming degree.584 Inevitably, in the construction of equidistance lines issues related to baselines, basepoints and thus coastal geography, including islands, become critical in the delimitation equation.585 In this context, the question of how outstanding geographical features, such as islands significantly far offshore, are treated is one of the most contentious issues in maritime boundary delimitation and has given rise to numerous maritime boundary disputes. As previously discussed, a ‘fully-fledged’ island may generate the full suite of maritime zones known to the international law of the sea, and consequently such a feature 582 Prescott and Schofield, 2005: 238. 583 Ibid., at 236. 584 Equidistance based delimitation lines provide 89 percent of delimited maritime boundaries with an opposite coastal relationship. Ibid., at 238. See also Legault and Hankey, 1993: 203-242. 585 Prescott and Schofield, 2005: 215-244 and 248-252. See also Legault and Hankey, 1993: 203-242. 200 may be crucial to a State’s claims to maritime jurisdiction and position regarding maritime boundary delimitation with neighbouring States. However, even if a feature can be categorised as a fully-fledged island under law of the sea rules, it must be borne in mind that islands are not always accorded ‘full effect’ in maritime boundary delimitations – achieved either through negotiations or with third- party assistance. Equidistance lines can, therefore, be flexibly applied to deal with the disproportionate effect of particular geographical features. Indeed, as demonstrated, there are numerous examples of State practice and case precedents where islands have received a substantially discounted or reduced effect, been partially or wholly enclaved or even completely ignored. With regard to the role of insular features of differing types in maritime boundary delimitation it is, however, worth emphasising that lack of certainty over the interpretation of LOSC Article 121 has led to diverse and, on occasion, contradictory State practice. Thus, in some instances extremely small insular features have been accorded a full role in the delimitation of continental shelf and EEZ rights, whilst in others substantial, populated islands have been given a partial or reduced effect. In a number of instances relatively large islands home to substantial populations have been accorded a reduced effect in the delimitation of the maritime boundaries. This variety in the treatment of islands could be considered unhelpfully inconsistent. 201 Alternatively, this can be viewed as illustrating the flexibility with which the equidistance methodology can be applied. Of particular note is the fact that islands are often accorded a reduced effect in maritime boundary delimitation in recognition of a disparity in the relevant coastal lengths of the coastlines involved, for example between a small island and a mainland coastline, and the consequent disproportionate impact an island may have on the construction of a strict equidistance line. In light of this considerable experience in terms of maritime boundary delimitation and the general but not comprehensive trend towards according islands a reduced impact on determining the course of maritime boundary delimitation lines, there are therefore strong reasons to doubt that small, isolated insular features, with restricted coastal fronts, would be awarded full effect in a delimitation against large island or mainland coastlines. It follows therefore, that the maritime jurisdictional claims often associated with small islands, frequently according these features full effect in the definition of strict equidistance lines, are often significantly overstated. The above review and assessment of international jurisprudence and State practice on the issue of the treatment of islands in the delimitation of maritime boundaries demonstrates that past practice is replete with examples of how the ‘trouble with islands’ can be effectively overcome. Ultimately, however, political will is crucial, especially in the context of maritime boundary delimitation negotiations. Unless one or more of the parties to a dispute over the insular status of a particular feature possesses the political will to compromise in the course of negotiations, deadlock will inevitably occur. 202 Arguably, in practice, the concerns that States expressed at UNCLOS III on the potential disproportionate and inequitable effects of small islands on maritime boundary delimitations have been addressed both in the decisions of international courts and tribunals and in the practice of States. 203 CHAPTER 5 Shifting Sands – Islands Under Threat 5.1 Islands Under Threat Buy land. They’ve stopped making it. Mark Twain586 Mark Twain’s flippant observation that “they” have stopped making land is, of course, not entirely true. New land territory emerges through processes such as isostatic (or post- glacial) rebound whereby the continental crust is gradually rebounding following the removal of the enormous weight of major ice-sheets, some several kilometres thick, after the end of the last ice-age.587 Lake infilling and the growth of deltas and other coastlines through natural depositional and alluvial processes have also served to increase the area of land around the world. Additionally, as demonstrated with the example of Ferdinandea/Graham Island, volcanic activity can also lead to the emergence of additional land above the surface of the sea. 586 Quoted in Ryan, J., Dunford, G. and Sellars, S., Micronations: The Lonely Planet Guide to Home- Made Nations, (Footscray: Lonely Planet Publications, 2006): 14. 587 It is generally thought that uplift rates as a result of isostatic rebound are of the order of 1cm or less. See, Johansson, J.M. et al., “Continuous GPS measurements of postglacial adjustment in Fennoscandia. 1. Geodetic results”. Journal of Geophysical Research, 107 (2002): 2157. This seemingly slight uplift can, however, have significant consequences in the context of low-lying, shallow gradient coastlines. For example, Canada’s Hudson’s Bay region is understood to be experiencing uplift at a rate of approximately 60cms per century. Despite this slow rate of rebound, considerable ‘extra’ areas of coastal land are gradually being exposed. See, “Hudson Bay”, The Canadian Encyclopedia, available at, <http://www.thecanadianencyclopedia.com/index.cfm?PgNm=TCE&Params=A1ARTA0003881>. Since the last glacial maximum around 20,000 years ago the Hudson’s Bay region has risen by approximately 400 feet (122m). 204 The counterpoint to this is that just as “new” land can come into being, so existing land can disappear. Traditionally, this has taken place as a result of natural erosional processes. This chapter addresses a further way in which land territory may disappear or submerge – through rising global sea levels. Global sea level rise is a critical issue for many coastal States, especially those with large and heavily populated low-lying coastal areas, as well as small island States. Indeed, it has been estimated that over three billion people, or around half of the world’s population, live within 200km of the coast.588 In light of longstanding and continuing rural to urban and interior to coast drift of population and the resulting increases in population density and intensity of uses in coastal areas, it becomes clear that significant sea level rise could pose daunting socio-economic, environmental and human security challenges on a global scale. While the causes of climate change still excite controversy and debate, it is now widely accepted that significant sea level rise is taking place and that this trend appears likely to accelerate in the future. This phenomenon raises a number of important challenges for coastal and island States. Among these threats is the likely impact of rising sea levels on national claims to maritime jurisdiction. Significant changes to coastlines and therefore baselines and the potential submergence of key basepoints may lead to the loss of potentially significant areas of maritime jurisdiction. The loss of significant areas, even all, of the maritime jurisdictional zones claimed by certain coastal States is likely to have 588 Walker, G. and King, D., The Hot Topic: How to Tackle Global Warming and Still Keep the Lights On, (London: Bloomsbury, 2008): 57. 205 profound jurisdictional as well as economic consequences since rights over these maritime spaces dictate exploitation rights over valuable resources within these maritime spaces would also necessarily be lost. Certain generally low-lying Pacific Island States, notably Kiribati, Marshall Islands and Tuvalu, which also have geographically restricted territorial extents, appear to be especially vulnerable to these threats. The chapter will investigate some of the options open to coastal States seeking to address and adapt to the challenges posed to their maritime jurisdictional rights by sea level rise. It is concluded that measures to physically protect the coast from sea level rise are generally unrealistic, save in exceptional circumstances for critical basepoints, in light of the scale of the challenge in engineering terms and the prohibitive costs associated with such interventionist approaches. Alternative legal options may, therefore, have to be explored. At UNCLOS III it was not anticipated that sea level rise would engender radical shifts in normal baselines and changes in insular status. Consequently, LOSC does not provide mechanisms to deal with these novel issues. The LOSC does, however, allow for the permanent fixing of some baselines and maritime limits and boundaries. The potential for adaptive legal responses that would provide for the fixing of other valuable baselines and maritime limits is assessed. 206 5.2 Rising Tides: The Threat of Global Sea Level Rise There is mounting evidence that not only is the global sea level rising, but that the rate at which it is doing so is accelerating.589 While debates continue as to the causes of this phenomenon (and which are beyond the scope of this paper), many commentators link sea level rise to anthropogenically-induced global climate change.590 The evidence for and impacts of global warming are compelling, as vividly demonstrated by recent events in the Arctic. In September 2007, the European Space Agency reported that the area covered by sea ice in the Arctic had shrunk to its lowest level since the initiation of satellite measurements 30 years ago.591 The United States National Snow and Ice Data Centre reported that the average five-day mean sea ice extent in September 2007 was 4.13 million km2. This was compared to the 1979-2000 average of 6.74 million km2 – a massive reduction to the average extent of 2.61 million km2.592 The summer ice extent for 2008 closely tracked that for 2007 with average September ice extent recorded as 4.67km2 million, the second lowest on record. Equally alarming are findings that not only 589 See, for example, Church, J. A., and White, N. J., “A 20th century acceleration in global sea-level rise”, Geophysical Research Letters, 33 (2006), L01602, doi:10.1029/2005GL024826. 590 Although the evidence for global warming appears to be compelling, some scientists and commentators point to long term cyclical processes rather than anthropogenically inspired causes to explain this phenomenon. With regard to the Arctic see, for example, “NASA sees Arctic Ocean circulation do an about-face”, available at <www.physorg.com/news114189626.html>. 591 European Space Agency (ESA), “Satellites witness lowest Arctic sea ice coverage in history” (14 September 2007) ESA News, available at <http://www.esa.int/esaCP/SEMYTC13J6F_index_0.html> 592 See National Snow and Ice Data Centre (NSIDC), Arctic Sea Ice News, Fall 2007, available at <http://nsidc.org/news/press/2007_seaiceminimum/20070810_index.html>. 207 has sea ice extent been dramatically reduced but also that the thickness of the ice that remains has been reduced by around 40 per cent.593 While the dramatic changes that are apparent in the Arctic do not contribute significantly to global sea level rise,594 these developments are indicative of the profound nature of the impacts being wrought through climate change. Arguably, these changes presage a ‘step change’ in the nature and scale of impacts on natural and social systems with the likelihood of resulting in broadscale environmental impacts leading to major changes in marine and terrestrial habitats and species. The major potential sources of significant sea level rise are from the thermal expansion of the oceans and the disintegration of land- based ice sheets. The first of these, the so-called ‘steric effect’, occurs as a consequence of the increasing atmospheric temperatures associated with global warming. As air temperatures rise so, gradually and incrementally, the oceans also warm. As they warm, surface waters expand and this in turn translates to a rise in sea level.595 With regard to the loss of land-based ice – the melting of glaciers and potential destabilisation and disintegration of major ice sheets such as those in Greenland and Antarctica (especially the West Antarctic ice sheet) – while it would in all probability take a considerable time for major bodies of ice to disintegrate, collapse, and melt, the 593 The 40 per cent reduction in thickness relates to mean ice thickness within the central Arctic Ocean between two submarine periods of ice-draft climatologies in 1958-1976 and 1993-1997. See, Rothrock, D.A., Yu, Y. and Maykut, G.A., “Thinning of the Arctic Sea Ice Cover”, Geophysical Research Letters, 26 (23) (1999): 3469-3472. 594 This is the case by virtue of the fact that frozen sea ice displaces roughly the volume that it would occupy when melted. 595 It has been estimated that the steric effect accounts for sea level rise of the order of 30 centimetres in the 20th century and, at the present rate, is likely contribute a further 10-20 centimetres per century. “Troubled Waters”, The Economist, 3 January 2009: 7. 208 consequences of this in terms of sea level rise of this are dire. The disintegration of major ice sheets has been described as “the greatest threat of climate change to human beings” with the potential to result in sea level rise well in excess of one metre by the end of the present century, with sea level possibly rising by around that figure every two decades. Subsequently.596 It is worth noting that there are strong signs of increased melting on the Greenland ice sheet and that there is enough water locked in the Greenland ice sheet to equate to sea level rise of the order of six to seven metres were it to collapse and melt completely.597 Were the West Antarctic ice sheet to slide into the see and melt, this would result in an estimated sea level rise of five metres.598 The possibility of the melting of major land-based ice sheets, resulting in massive and abrupt sea level rise has been described as one of the major climate “wild cards.”599 The United Nations Intergovernmental Panel on Climate Change (IPCC), in its most recent report in 2007, estimated the range of sea-level rise at between 0.38 to 0.59 metres.600 The key reason for the IPCC’s relatively moderate predictions, which includes a mid-range prediction of sea level rise of the order of 40 centimetres, is that it the 596 Hansen, J., “The Threat to the Planet”, The New York Review of Books (13 July 2006), available at, <http://www.nybooks.com/articles/19131>. 597 Ibid. Hansen’s review article notes that the area of Greenland subject to melting in summer has increased by in excess of 50 per cent in the last 25 years, that the volume of icebergs being discharged from Greenland has doubled in the last ten years and that the annual number of “icequakes” caused by major shifts by parts of the ice sheet (a sign of destabilisation) doubled in the 1990s and redoubled by 2005. See also the overview of the mixed news and views concerning the Greenland ice sheet provided by Walker and King (2006: 778-80) which concludes that “Greenland is one of the most convincing reasons we have for the urgent need to curb climate change.” 598 Walker and King, 2008: 76. Walker and King do, however, note that the melting of the West Antarctic ice shelf is unlikely thanks to the presence of ice sheets off the coast. The Pine Island/Thwaites area lacks such fringing ice shelves, however, meaning that this area is potentially more vulnerable to climate change. The melting of the glaciers located in the Pine Island/Thwaites area alone could result in sea level rise of around 1.5 metres (Ibid.: 77-78). 599 Ibid.: 75-80. 600 See, the IPCC’s Fourth Assessment Report (AR4), available at, <http://www.ipcc.ch/#>. 209 IPCC’s methodology does not take into account the potential disintegration of the major ice sheets since considerable uncertainties exist in respect of how swiftly such events might take place. This has led to the IPCC’s predictions being criticised as being “remarkably conservative” and the victim of reaching “lowest common-denominator conclusions.” 601 It is also important to recognise that sea level is not a uniform phenomenon – as a consequence of these changes the sea level rise in some areas will be significantly greater than others.602 Whilst there is mounting evidence of sea level rise and that the rate of sea level rise is accelerating, it is important to acknowledge that considerable uncertainties remain and that sceptical voices exist which view the predictions of sea level rise outlined above as improbable.603 Nonetheless, even the relatively modest sea level rise envisaged by the IPCC would have significant consequences and pose major challenges for coastal States, most notably those that are low-lying such as Bangladesh and those composed of low- lying islands such as Kiribati and Tuvalu in the Pacific Ocean and the Maldives in the Indian Ocean. 601 McKibben, W., “Warning on Warming”, The New York Review of Books (15 March 2007). 602 Walker and King (2008: 57) remark that the fact that sea level is falling rather than rising in some areas is “emphatically not a counter-indicator of climate change.” 603 See, for example, Morner, N.-A. (2007) The Greatest Lie Ever Told, (printed and distributed by the author). The fact that Morner’s monograph is self-produced is perhaps indicative of the credibility of the arguments made therein as compared to writings published in peer-reviewed journals and with scholarly presses. 210 5.2.1 Ambulatory Baselines As previously noted (see Chapter 2.4.1), the majority of the baselines of coastal States are normal baselines consisting of the low-water line as marked on large-scale charts recognised by the coastal State.604 The choice of a particularly low vertical datum may, however, have negative implications in the case of unstable coasts and also in an era of sea level rise. By virtue of their especially low-lying nature, the low water normal baselines on which coastal States rely to measure their claims to maritime jurisdiction are potentially unstable and likely to be especially susceptible to inundation as sea level rises. The traditional and generally accepted linkage between ambulatory normal low-water baselines and the limits of maritime zones of jurisdiction dictates that as normal baselines change, so the limits of the maritime jurisdictional zones measured from these baselines correspondingly shift. This view can be reached through negative implication. As LOSC provides for certain maritime limits to be fixed, notably in respect of the presence of deltas and other natural conditions (LOSC, Article 7(2), see below) and in relation to the outer limit of the continental shelf beyond the 200 nautical mile limit (LOSC, Article 76(8)), the implication is that other maritime limits are not fixed.605 Thus, as normal baselines recede, so the maritime zones measured from them will also retreat leading to potentially diminution in the scope of the coastal State’s maritime claims.606 604 LOSC, Article 5. 605 See, for example, Caron, D.D. “Climate Change, Sea Level Rise and the Coming Uncertainty in Oceanic Boundaries”, in S.-Y. Hong and J.M. Van Dyke (eds) Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea, Publications on Ocean Development, Volume 65 (The Hague: Martinus Nijhoff, 2009). 606 See, Schofield, C.H., “Against a Rising Tide: Ambulatory Baselines and Shifting Maritime Limits in the Face of Sea Level Rise”, pp.70-77 in Proceedings of The International Symposium of Islands and Oceans, Terashima, H., (Tokyo: Ocean Policy Research Foundation, 2009b): 74. 211 This is not a new phenomenon or problem. It has long been recognised that coastlines are dynamic, so normal baselines can change significantly over time or “ambulate” and this necessarily has an impact on the generation of the outer limits of claims to maritime jurisdiction.607 There exists a longstanding tension between the understandable desire on the part of hydrographers and chart-makers to show the ‘true’ location of the normal baseline and the need for stability, clarity and certainty in maritime limits from a management and enforcement perspective. The surveying of the low water line that results in the low water line shown on a nautical chart is a ‘snap shot’ in time. Arguably, where a particularly low vertical datum is in use, as is usually the case, and the coastline in question is unstable, it is a near impossible task to show the ‘true’ location of the normal baseline since it is always shifting. By the time a chart is published, the actual location of the low water line in question may have moved – not least because coastlines often change in a cyclical manner over time (alternately shifting seawards through deposition or accretion of material and then landwards as a consequence of erosion).608 It is also the case that survey activities are dictated by safety of navigation requirements. This tends to mean that shallow waters, where shipping is least likely to venture, are least surveyed, and consequently, charting of these areas may 607 Reed, M.W., Shore and sea boundaries: the development of international maritime boundary principles through United States practice, (Washington D.C.: US Department of Commerce, 2000): 185; Prescott and Schofield, 2005: 100-101. 608 For a discussion of these issues and the tensions between traditional charting methods and the use of geographical information systems (GIS) see, Hirst, B. and Robertson, D. (2004) “Geographic Information Systems, Charts and UNCLOS – Can They Live Together?”, Maritime Studies, N.136 (May-June): 1-6. 212 suffer from positional uncertainty.609 These waters are, however, of most relevance from the point of view of defining the location of normal baselines. Not the whole of a coastal State’s baseline contributes towards the construction of the outer limits of its maritime claims. Maritime limits are commonly constructed through the ‘envelope of arcs’ method.610 Consequently, only certain basepoints along the normal baseline will be relevant to the limits of the maritime zones with the length of the arcs from the contributing basepoints being determined by the breadth of the maritime zone for which the outer limit is being constructed – a maximum of 12nm for the territorial sea, 24nm for the contiguous zone and 200nm for the exclusive economic zone (EEZ). It follows that fewer basepoints contribute to the construction of the outer limits of maritime claims where broader maritime claims are under consideration. Thus, not all of a normal baseline is of equal ‘worth’ from the point of view of capacity to generate zones of maritime jurisdiction. There will be certain critical basepoints that may be the focus of efforts to preserve maritime claims. It can also be observed that, in general, the problem of a receding normal baseline leading to similarly retreating maritime jurisdictional limits will arguably be more prevalent in respect of territorial sea limits. This is partially because fewer basepoints are needed to generate EEZ limits (see Chapter 2.4.2), and partially because of the proximity of other States, leading to overlapping maritime entitlements and, in due course, the delimitation of maritime boundaries which will remain fixed. Nevertheless, if a basepoint critical to a 609 Ibid.: 2. See also, Dorst and Elema (2008: 4), who observe that “bathymetric surveying in shallow tidal waters, like the Southern North Sea, has an uncertainty of several decimetres.” 610 Carleton and Schofield, 2001: 62. 213 200nm claim, such as a small island, is threatened, for example by sea level rise, the resulting potential loss of maritime would be significant. 5.2.2 Ephemeral Islands? Sea level rise also has the potential to threaten the insular status of certain features, that is, whether a particular feature can be properly regarded as an island, a low-tide elevation, or a fully submerged part of the sea floor. This, in turn, can have implications in terms of the capacity of a particular feature to generate extensive maritime claims to jurisdiction. As was discussed in Chapter 3, while generally islands may generate a full suite of maritime zones in an identical fashion to mainland coasts, “[r]ocks which cannot sustain human habitation or an economic life of their own shall” are incapable of generating EEZ or continental shelf rights. This distinction between islands and rocks has profound implications in terms of potential maritime claims (see Figure 2.3). With regard to low-tide elevations, as provided by LOSC, Article 13, these may be used as a territorial sea basepoint, but only if they fall wholly or partially within the breadth of the territorial sea measured from the normal baseline of a State’s mainland or island coasts. A low-tide elevation’s value for maritime jurisdictional claims is therefore geographically restricted to coastal locations.611 Consequently, low-tide elevations have been termed “parasitic basepoints” (see Chapter 3.6)612 With respect to the ambulatory nature of normal baselines and the maritime jurisdictional limits measured from them it 611 See, Carleton and Schofield, 2001: 38 and Prescott and Schofield, 2005: 107-108. 612 Symmons, C.R. (1995) Some problems relating to the definition of insular formations in international law: islands and low-tide elevations, Maritime Briefing, Vol.1, no.5, (Durham: International Boundaries Research Unit): 7. 214 can be observed that low-tide elevations are often the key culprits. This is because low- tide elevations, by virtue of their near low-tide level status and the fact that they are often composed of soft depositional material which may readily change over time, tend to appear on one survey but not the next, resulting in revisions in the related charts and thus in maritime jurisdictional limits associated with them.613 5.2.3 Implications Opting for a very low vertical datum and thus low-water line inevitably means that often ephemeral features, such as low-tide elevations, are used as basepoints for the generation of claims to maritime jurisdiction. The loss of critical basepoints/i
UBC Theses and Dissertations
The trouble with islands Schofield, Clive Howard 2009
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