The presence of islands and low-tide elevations affects the location of the outer limits of marine spaces under national jurisdiction. Hence it will be appropriate to address rules concerning islands and low-tide elevations in this chapter. This section examines rules concerning regime of islands provided in Article 121 of the LOSC. Article 121 contains three provisions that present a definition (paragraph 1), a general rule (paragraph 2) and an exception to that general rule (paragraph 3).
Nature of the Problem
Article 121(2) of the LOSC provides a general rule concerning the entitlement of an island:
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.
As provided in this provision, an island, if so identified, generates vast marine spaces. It is not surprising, therefore, that the question concerning the legal definition of islands is a matter of debate in the law of the sea.
It is said that there are approximately half a million formations of islands in the world, and these formations are extremely diverse. A question thus arises of whether all ‘islands’ should generate an EEZ as well as a continental shelf, regardless of their differences in size, habitability, economic factors, etc. If the answer were in the affirmative, a tiny marine formation could generate a 200-mile EEZ and a continental shelf. On the other hand, this interpretation would further promote the division of the oceans, and diminish the scope of the high seas and the Area, which is the common heritage of mankind. This view would also entail the risk of increasing territorial disputes where there are potential natural resources in the maritime area around these islands.
In this regard, at UNCLOS III, a sharp opposition emerged between the group of States (Fiji, New Zealand, Tonga, Western Samoa and Greece) advocating the equal treatment of all islands or island-related formations and the group of States (Romania, Turkey and a group of African States) proposing to limit the maritime zones of islands depending on their conditions. Article 121 was drafted as a compromise between these two opposed groups of States. Owing to the ambiguous language, as will be seen below, this provision raises considerable difficulty with regard to its interpretation.
Definition of an Island
The definition of an island is provided in Article 121(1) of the LOSC:
An island is a naturally-formed area of land, surrounded by water, which is above water at high tide. This provision, which follows Article 10(1) of the TSC, contains four criteria that call for comment.
First, an ‘island’ in the legal sense must constitute an ‘area of land’. This criterion contains two requirements: (i) that an insular feature must be attached to the seabed; and (ii) that it must have the nature of terra firma. In accordance with these requirements, floating formations, such as icebergs, cannot be regarded as islands. There is no size criterion with regard to the ‘area of land’ in Article 121. In fact, the ICJ, in the 2001 Qatar/Bahrain case (Merits), stated: ‘In accordance with Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea, which reflects customary international law,
islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory’. This view was echoed by the ICJ in the Nicaragua/Colombia judgment. In some cases, opinions may be divided with regard to the nature of terra firma of a marine formation. Concerning the legal status of Qit’at Jaradah – a maritime feature belonging to Bahrain – for instance, Judges Bedjaoui, Ranjeva and Koroma, in the 2001 Qatar/Bahrain case (Merits), took the view that geomorphological characteristics of Qit’at Jaradah did not make it an island because
it was not terra firma. Nonetheless, the majority opinion considered Qit’at Jaradah as an island.
Second, an ‘island’ must be a ‘naturally-formed’ creation. This requirement means that the composition of the island must be ‘natural’, not ‘artificial’; and that the island must be formed without human intervention in its formation process. Consequently, an artificial island and installation, such as a lighthouse, beacon, oil platform, or defence tower, is not
an ‘island’ under Article 121 of the LOSC. It can be argued that lighthouses built on low-tide elevations or permanently submerged seabed formations do not acquire the juridical status of an ‘island’. Unlike islands, artificial islands have no territorial sea of their own, and cannot be used as a base point measuring the territorial sea. This is clear from Article 60(8) of the LOSC. Furthermore, as the Annex VII Arbitral Tribunal stated in the South China Sea Arbitration (Merits), a low-tide elevation or area of seabed cannot be legally transformed into an island through human efforts. On the other hand, there is room for the view that man-made attempts to preserve the natural, above high-water aspect of an eroding formation may not disqualify its legal status as an island.
Third, an ‘island’ must be ‘surrounded by water’. Accordingly, if a marine formation is connected by a sandbar to the mainland which dries out at low tide, the formation cannot be regarded as an island in the legal sense. Similarly, if a marine formation is connected by a causeway to the mainland, the formation would seem to lose its insular status.
Fourth, an ‘island’ must be ‘above water at high tide’. According to this requirement, an island is distinct from low-tide elevations, which are submerged at high tide. However, the meaning of ‘above water at high tide’ is not uniform in State practice. In borderline cases, the distinction between an island and a low-tide elevation is rather fine.
Rocks for the Purposes of Article 121(3)
(a) General Considerations
With regard to the legal status of islands, the most debatable issue is whether the legal status of islands should be qualified by socio-economic factors. In this regard, Article 121(3) of the LOSC stipulates:
Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
It follows that rocks for the purposes of Article 121(3) only have the territorial sea and the contiguous zone. However, there is no clear definition of rocks in the LOSC.125 In this regard, it must be noted that the word ‘rock’ under Article 121(3) is not limited to maritime features composed of solid rock. The geological and geomorphological characteristics of a high-tide feature are not relevant to its classification pursuant to Article 121(3).126 Hence rocks are regarded as a sub-category of island within Article 121. It must also be noted that Article 121(3) does not apply where a rock forms part of a baseline from which marine spaces under national jurisdiction, namely the territorial sea, the EEZ and the continental
shelf, are measured.
It is clear that the objective of Article 121(3) is to prevent excessive claims over the EEZ and continental shelf by restricting the capacity of ‘rocks’ to generate these marine spaces. In this sense, it may be said that the function of Article 121(3) is preventive by nature.
In light of the vagueness of the text, however, the interpretation and application of Article 121(3) may vary according to States. An illustrative example concerns Rockall. The United Kingdom established a continental shelf and an EFZ around Rockall in 1974 and 1977, respectively. This action was protested by Ireland, Denmark and Iceland. As a result, the United Kingdom gave up the 200-mile fishery zone when it acceded to the LOSC in 1997.
Another example may be furnished by Okinotorishima. This marine feature, which is part of Japanese territory, is located in the Pacific Ocean, around 1,700 kilometres south of Tokyo. Okinotorishima comprises two tiny islets. It is beyond doubt that Okinotorishima is not a low-tide elevation, and the Japanese government regards this maritime feature as
island. Thus the Japanese government established in 1977 a 200-mile fishery zone and, in 1996, a 200-mile EEZ around Okinotorishima. In 1989, the Japanese government encased Okinotorishima in a concrete and steel bank with a view to preventing erosion. However, in 2004, the Chinese government expressed the view that Okinotorishima cannot have a
200-mile EEZ because it is a rock. In 2005, Taiwan raised the same question against the legal status of Okinotorishima. Furthermore, in 2009, the Republic of Korea and China presented their compliments to the UN Secretary-General with regard to the submission made by Japan to the CLCS, and claimed that Okinotorishima, considered as a rock under Article 121(3), is not entitled to any continental shelf extending to or beyond 200 nautical miles. As shown in this example, the legal status of a maritime feature may raise particular sensitivities for the claim over the continental shelf beyond 200 nautical miles measured from a maritime feature.
(b) Interpretation of Article 121(3) of the LOSC
An international court or tribunal has only rarely determined the legal status of maritime features by applying Article 121(3). In the ICJ jurisprudence, three cases are especially
relevant.
The first case is the 1993 Greenland/Jan Mayen case. Jan Mayen appertains to Norway. Its total area is 380 square kilometres (or 148 square miles); it is inhabited by only some twenty-five technical and other staff of the island’s meteorological station, a LORAN (longrange radio navigation) station and the coastal radio station. Bulk supplies are brought in by ship and uploaded in Hvalrossbukta (Walrus Bay) to support human life there. The ICJ, in its judgment of 1993, de facto treated Jan Mayen as a fully entitled island, even though the Court did not directly examine the legal status of Jan Mayen for the purposes of Article 121(3).
Second, in the 2012 Nicaragua/Colombia case, the legal status of Quitasueño was at issue. Quitasueño is a minuscule feature, barely 1 square metre in area, and is above water at high tide only by some 0.7 metres. In this regard, the ICJ held:
Quitasueño is a rock incapable of sustaining human habitation or an economic life of its own and thus falls within the rule stated in Article 121, paragraph 3, of UNCLOS.
However, it must be noted that in the Nicaragua/Colombia case, the ICJ decided the legal status of Quitasueño on the basis of the statements of the parties.
Third, in the 2018 Costa Rica/Nicaragua case, the Parties were divided with regard to the placement of base points on the Corn Islands. Great Corn Island has an area of 9.6 square kilometres and Little Corn Island has an area of 3 square kilometres. The total population of Corn Islands is approximately 7,400 inhabitants. The ICJ noted that the Corn Islands have a significant number of inhabitants and sustain economic life. It thus held that Corn Islands:
amply satisfy the requirements set forth in Article 121 of UNCLOS for an island to be entitled to generate an exclusive economic zone and the continental shelf.
Yet, the Court did not undertake a thorough examination of the interpretation of Article 121(3).
The above survey suggests that the ICJ has been wary about clarifying the interpretation of Article 121(3). In the South China Sea Arbitration (Merits), however, the Annex VII Arbitral Tribunal undertook, for the first time in the jurisprudence, a detailed examination of this provision. Thus this Tribunal’s view provides an important insight into this subject. In its arbitration award on the merits, the Tribunal focused on qualitative and temporal requirements.
(i) Qualitative requirements: Article 121(3) contains two qualitative requirements for a maritime feature to be a fully entitled island: capacity to sustain ‘human habitation’ and ‘economic life of their own’. The capacity of a feature must be objectively determined. In this connection, three issues arise.
The first issue is whether the requirement of ‘human habitation’ and that of ‘an economic life of its own’ must be met for a feature to be entitled to an EEZ and continental shelf at the same time (cumulative interpretation) or whether one will suffice (disjunctive interpretation).
Some take the cumulative interpretation, arguing that the two requirements can be considered as a single concept. However, the Annex VII Arbitral Tribunal took the disjunctive interpretation. In the words of the Annex VII Arbitral Tribunal, ‘the ability to sustain either human habitation or an economic life of its own would suffice to entitle a high-tide feature to an exclusive economic zone and continental shelf’. At the same time, it added that as a practical matter, ‘a maritime feature will ordinarily only possess an economic life of its own if it is also inhabited by a stable human community’; and that the two requirements will ‘in most instances go hand in hand’.
The second issue pertains to the ‘natural formation’ test. In this regard, the Arbitral Tribunal stated: ‘The status of a feature must be assessed on the basis of its natural condition.’ However, natural condition of a maritime feature may change with the passage of time. An issue that arises in this context is whether the capacity of a maritime feature to sustain human habitation or economic life of its own may change over time. The Tribunal decided the legal status of high-tide features in the Spratly Islands on the basis of historic evidence. The Tribunal’s interpretation is essentially static in the sense that the capacity of a maritime feature is fixed at a certain moment in the past. However, historical evidence of human habitation or economic life of its own can only serve as evidence of capacity in the past, and that past capacity must continue to exist for a maritime feature to be a fully entitled island. If the past capacity has been lost, the feature can no longer be regarded as a fully entitled island. The logic of this suggests the possibility that a maritime feature may subsequently obtain natural conditions to sustain human habitation or economic life of its own. As the Tribunal accepted, ‘Article 121(3) is concerned with the capacity of a maritime feature to sustain human habitation or an economic life of its own, not with whether the feature is presently, or has been, inhabited or home to economic life’. As capacity is a generic term, its content evolves over time. Thus it appears difficult to preclude the possibility that the legal status of a maritime feature may change over time.
The third issue concerns the interpretation of the requirement of ‘economic life of their own’. In this regard, the Tribunal specified two standards. The first standard concerns the feature-orientated nature of economic activity. In the words of the Tribunal, ‘to constitute the economic life of the feature, economic activity must be oriented around the feature itself
and not be focused solely on the surrounding territorial sea or entirely dependent on external resources’. The second standard relates to the linkage between a stable local community and economic activity. According to the Tribunal, ‘extractive economic activity, without the presence of a stable local community, necessarily falls short of constituting the economic life of the feature’. An issue that arises in this context is whether external resources can be introduced to improve economic life in a maritime feature. In this regard, the Tribunal took this view:
[T]he requirement in Article 121(3) that the feature itself sustain human habitation or economic life clearly excludes a dependence on external supply. A feature that is only capable of sustaining habitation through the continued delivery of supplies from outside does not meet the requirements of Article 121(3). Nor does economic activity that remains entirely dependent on external resources or that is devoted to using a feature as an object for extractive activities, without the involvement of a local population, constitute a feature’s ‘own’ economic life
. . .
Where outside support is so significant that it constitutes a necessary condition for the inhabitation of a feature, however, it is no longer the feature itself that sustains human habitation.
However, the Tribunal offered no further precision with regard to the degree of ‘significant’ dependence. Accordingly, one will be forced to decide the degree of significant dependence on a case-by-case basis.
(ii) Temporal requirements: The temporal requirements are crucial in the interpretation of ‘human habitation’ provided in Article 121(3). In this regard, two points must be noted. The first is the ‘non-transient character’ of the inhabitation. In the words of the Tribunal:
The term ‘human habitation’ should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain.
The adjective ‘stable’ seems to signify that to fulfil the requirement of human habitation, a community of people must exist in a maritime feature for a certain period of time. The dictum of the Tribunal leads to an important consequence of precluding temporary military personnel, fishermen, lighthouse keepers, etc.
Second, for the survivable of people, some essential needs must exist in a maritime feature. In this regard, the Tribunal considered that the following factors contribute to the natural capacity of a feature: the presence of water, food and shelter in sufficient quantities to enable a group of persons to live on the feature for an indeterminate period of time. As
shown by the phrase ‘an indeterminate period of time’, the Tribunal again stressed a temporal requirement concerning human habitation.
On the basis of the interpretation outlined above, the Annex VII Arbitral Tribunal, in the South China Sea Arbitration (Merits), determined the legal status of multiple maritime features in the South China Sea. Specifically, the Arbitral Tribunal applied a dual approach to determine legal status of maritime features. First, where a maritime feature lacks essential needs for the survival of human being, such as fresh water, vegetation or living space, that feature is regarded as a rock under Article 121(3) since they obviously cannot sustain human habitation in its naturally formed state. Second, where the physical characteristics of the features do not definitively indicate the capacity of the features, the legal status of the features are determined on the basis of historical evidence, i.e. ‘historical human habitation’ and ‘historical economic life of their own’. According to the Arbitral Tribunal’s approach, temporal elements perform a crucial role in determining the legal status of a contentious maritime feature. Such elements are:
• the ‘non-transient character’ of the human inhabitation,
• the existence of factors to support a group of persons to live on a maritime feature for an ‘indeterminate period of time’,
• the ‘not one-off or short-lived’ support and provision,
• provision which is necessary to keep humans alive and healthy over ‘a continuous period of time’,
• ‘historical evidence’ of natural conditions on maritime features,
• ‘historical’ human habitation, and
• ‘historical’ economic life of their own.
In conclusion, the Tribunal held that none of the high-tide features in the Spratly Islands, including Itu Aba, is capable of sustaining human habitation or an economic life of their own. As a consequence, such features have no EEZ or continental shelf.
the Tribunal, ‘without human habitation (or an economic life), the link between a maritime feature and the people of the coastal State becomes increasingly slight’. It is of particular interest to note that the Tribunal focused on the bene fit of population, not the interest of individual States, as the raison d’être of the EEZ. The second element pertains to the safeguard of the common heritage of mankind. According to the Arbitral Tribunal, Article 121(3) functions as safeguard of the common heritage of mankind. Given that the principle of the common heritage of mankind aims to protect the benefit of mankind as a whole, it can be said that the Tribunal’s interpretation of Article 121(3) also focuses on this benefit.
The validity of the Tribunal’s interpretation of Article 121(3) must be considered in a broad context of development of the law of the sea after World War II. This period can be essentially characterised by the opposition between unilateralism and universalism in the law. On the one hand, unilateral extension of coastal State jurisdiction towards the high seas to control natural resources has been a driving force behind the development of the law of the sea following World War II. This movement promotes unilateralism in the oceans, focusing on the interests of individual States. On the other hand, as with international law in general, the protection of common interests of the international community as a whole or community interests is increasingly important in the law of the sea, and is linked to universalism in the oceans. The Tribunal’s interpretation of Article 121(3) appears to reflect the universalism in the law of the sea. Arguably, this interpretation will serve for the development of the law of the sea towards universalism. In accordance with the Tribunal’s interpretation, however, many maritime features would fall within the scope of Article 121(3). Whether or not that interpretation would be supported by subsequent State and judicial practice needs careful consideration.
Customary Law Nature of Article 121
The ICJ, in the 2001 Qatar/Bahrain case (Merits), pronounced that Article 121(2) of the LOSC reflects customary law. The Conciliation Commission in the 1981 Jan Mayen case also considered that Article 121 of the 1980 Draft Convention on the Law of the Sea (Informal Text) reflected the present status of international law. In this connection, it must be noted that the law applicable to this case was limited to paragraphs 1 and 2 of Article 121. Thus there appears to be a general sense that the Conciliation Commission regarded only these paragraphs as customary law.
In the Nicaragua/Colombia case, the ICJ stressed the integrity of the three provisions of Article 121. According to the Court, by denying an EEZ and a continental shelf to rocks which cannot sustain human habitation or economic life of their own, Article 121(3) provides an essential link between the long-established principle that islands generate the same maritime rights as other land territory and the more extensive maritime entitlements recognised in the LOSC and which the Court has found to have become part of customary international law. The Court thus ruled:
[T]he legal régime of islands set out in UNCLOS Article 121 forms an indivisible régime, all of which (as Colombia and Nicaragua recognise) has the status of customary international law.
If Article 121(3) reflects customary international law, State practice is highly diverse in the interpretation and application of this provision. Hence, as discussed earlier, the clarification of the interpretation of this provision is of critical importance.
Reefs
Before UNCLOS I, little attention was given to a rule governing coral islands or islands fringed with reefs. While serious attention was, for the first time, given at UNCLOS I, no provision concerning reefs was contained in the TSC. However, the LOSC contains a special rule relating to islands situated on atolls or islands having fringing reefs.
There is no definition of the term ‘atoll’ in the LOSC. In geographical terms, an atoll is a ring-shaped reef with or without an island situated on it, surrounded by the open sea that encloses or nearly encloses a lagoon. The lagoon is rich in marine life and the economic well-being of the indigenous people depends basically on the lagoon fishery. The term ‘reef’ refers to a mass of rock or coral which either reaches close to the sea surface or is exposed at low tide. That part of a reef which is above water at low tide but submerged at high tide is called drying reef. Thus, drying reefs belong to the category of low-tide elevations. The reef not only forms the lagoon that sustains the indigenous population but also protects the islands from the destructive force of waves and ocean swells.
Owing to the intimate connection between reefs, lagoons and islands, it is desirable that the waters between reefs and islands should be internal waters. Normally lagoon waters are difficult to access and are unsuitable for navigation. Accordingly, it would be difficult to apply a right of innocent passage to lagoon waters in practice. In this regard, Article 6 of the LOSC provides:
In the case of islands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth of the territorial sea is the seaward low-water line of the reef, as shown by the appropriate symbol on charts officially recognized by the coastal State.
This provision calls for three comments with regard to its interpretation. First, Article 6 refers to ‘islands situated on atolls’, not atolls alone. It would follow that unless there is an island, namely terra firma, on the atoll, the atoll cannot generate a territorial sea.
Second, it appears that this provision does not apply to permanently submerged reef features. In the 1999 Eritrea/Yemen Arbitration (Second Phase), Eritrea claimed that a reef called the ‘Negileh Rock’ could be used as part of a straight baseline system. Yemen objected to the use of the reef as part of the baseline because the reef is not above water at
any state of the tide. The Arbitral Tribunal did not admit the claim of Eritrea on the basis of Articles 6 and 7(4) of the LOSC.
Third, the meaning of ‘fringing reef’ is open to discussion. Some argue that the ‘fringing reef’ covers barrier reefs which are walls of coral rocks generally separated from the low water line of the island by a deep channel, usually a lagoon. According to this view, Article 6 of the LOSC can be applied to any reefs without distinction. However, other writers are more cautious about taking such a broad interpretation. Considering that there is no clear limit of the distance between a fringing reef which is to be used as a baseline and an island, the broad interpretation would seem to encourage an excessive claim for baselines. Also, Article 6 contains no rule concerning the situation where the fringing reef is incomplete and a gap exists in sections of the reef. While, in this case, it appears to be reasonable to draw a straight line across the gap, this may be questioned where the gap is extensive. Where the reef fringes only a part of the island, the question will arise as to how it is possible to link the island to the reef in order to close internal waters. Moreover, the meaning of the term ‘seaward’ low-water line is not without ambiguity. One wonders whether this term excludes reefs on the side of a lagoon as opposed to the open sea.