Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own

Abstract

Article 121 of the 1982 United Nations Convention on the Law of the Sea (LOS Convention) retains the traditional definition of an island as: ‘a naturally formed area of land, surrounded by water, which is above water at high-tide’ (paragraph 1), and attributes to it the same maritime spaces as the mainland. These spaces are at present: the 12 mile territorial sea (TS), the 24 mile contiguous zone (CZ), the continental shelf (CS) and the 200 mile exclusive economic (or fishery) zone (EEZ) (paragraph 2). However, unlike the 1958 Geneva Convention on the Territorial Sea which gives the same legal status to all natural islands, paragraph 3 of Article 121 limits the legal entitlement of islands to maritime spaces by providing that:‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’.

Case Note: The South China Sea Dispute and the Role of UNCLOS in the Settlement of the Dispute

“…It is worth noting that one of the judges on the Tribunal, Professor Soons, stated that "if the capacity of an island not sustaining human habitation or economic life at present can be admitted on the basis of past human habitation or economic life, logic would also require admission on the basis of future capacity." 104 Other authors have rightfully suggested that in this regard, modern technology can certainly have a role to play in creating 'economic life' where previously there was none. 105 The fact that the PCA declined to recognize some of the relevant maritime features as islands did not mean that these features are completely unusable for maritime-delimitation purposes.…”

Entitlement to Islands, Rocks and Low – Tide Elevations in the South China Sea: Geoeconomics versus Rule of Law

“…It is arguable that if harbour reclamation qualifies as addition to state territory, this opens the possibility of artificially extended islands (rocks) (Kwiatkowska and Soons, 1990).…”

Problematic Expansion on Jurisdiction: Some Observation on the South China Sea Arbitration

“…As considerations of equity gives islands various effects in determining entitlements to maritime areas, islands may generate full or partial maritime spaces, or none at all. 35 It is impressive to understand that even an island entitled to full maritime zones under Article 121 may only be given partial effect or no effect at all on delimiting a maritime boundary in accordance with Articles 15, 74 or 83. Why do island status and its effects on delimitation not exactly correspond?…”