Determination of Sovereign Rights over the Islands and Areas - Case Study Example

Case Study Scenario The two states are situated opposite to each other with a natural passage or arm of water connecting two larger bodies of water at either end between the two states. Situated within this strip of water are many islands, some of them are inhabited and some are just rocky outcrops with no economic function, some which are claimed by state A are within three miles of the coastline of state B but state A claims historic sovereignty over these islands. State B claims that their fishermen have fished the prolific fishing grounds surrounding these islands since time immemorial. Unfortunately these fishing grounds are becoming over-fished and state A wishes to prevent the fishermen from state B from fishing them in the future for conservation reasons. State A also claims to have an archipelagic coastline and so claims rights of delimitation under Art 47 of the 1982 Law of the Sea Convention. State A has granted an exploration and exploitation license to an international oil company to develop an oil field within the disputed waters off an island within 3 nm of the coastline of state B. Oil has been found and produced for the last three years. Issue What are the rules applicable in order to resolve such maritime dispute between State A and State B? UNCLOS Assuming that both parties are signatories to the United Nations Convention on the Law of the Sea (UNCLOS), such Convention provides for guidelines in determining the extent to which a state may exercise sovereignty over the said maritime dispute. Part XV of the 1982 UN Convention on the Law of the Sea necessitates the States to resolve peacefully any dispute concerning the Convention.1 If such a bilateral settlement fails, Article 286 of the UNCLOS provides that any dispute shall be submitted for compulsory settlement to one of the tribunals having jurisdiction.2 These tribunals include the International Tribunal for the Law of the Sea (ITLOS), the International Court of Justice, and arbitral or special arbitral tribunals constituted under the UNCLOS.3 Since State A is claims to have an archipelagic coastline, the Archipelago Doctrine would then apply to such state, which doctrine gained international legal recognition during the third United Nations Conference on the Law of the Sea (UNCLOS III) in 1982. The concept of “Archipelagic Doctrine” is now recognized under part IV of the United Nations Convention of the Law of the Sea. The UNCLOS provides that, an “Archipelagic State means a State constituted wholly by one or more archipelagos and may include other islands.4 An archipelago under the UNCLOS means “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.”5 In order to visualize what areas are covered by an archipelagic state, Article 47(1) of the UNCLOS provides that, “an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”6 In case however, “a part of the archipelagic waters of an archipelagic State lies between two parts of an immediately adjacent neighbouring State,” the UNCLOS states that “existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected.”7 With respect to those islands which are outside of the main archipelago, State A may treat them under the Regime of Islands provided Article 121 of the UNCLOS which states that a regime of island is “an island is a naturally formed area of land, surrounded by water, which is above water at high tide.”8 UNCLOS further expounds that “except as provided for in paragraph 3 of Article 121, 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.”9 However, there shall be no exclusive economic zone or continental shelf in cases of “rocks which cannot sustain human habitation, or economic life of their own.”10 State A can then claim sovereign rights over the islands under the Archipelagic Doctrine and the concept of Regime of Islands. However, State B can argue that it traditionally exercised its rights and which must be respected, as provided for under Article 47 (6) of the UNCLOS. Aside from the arguments above-mentioned, State B may also justify its claim under Article 2 of the UNCLOS which provides that “the sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.”11 Since the islands are within three miles within the coastline of State B, such state may further assert its claim under Article 3 of the UNCLOS which provides that, “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”12 The claimant states A and B under this provision, is allowed “to extend its national territory boundary 12 nautical miles into offshore waters.”13 These areas which extend 2 nautical miles into offshore waters, are considered as sovereign territory, “controlled by the mainland state.”14 Article 15 of the UNCLOS further provides that “Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured.”15 The stated provision however does not apply, in case “where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States.”16 Hence, it may be possible that neither State has the right to extend its territorial sea beyond the median line except if one state has sovereign rights historic title or other special circumstances to delimit the territorial seas. The State then that alleges this claim of historic title or other special circumstance, has the burden of proving such a claim. The provisions relating to the rules of innocent passage in the territorial seas, is set forth in Article 21 (1) of the UNCLOS. Said Article provides among others that, “the coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of xxx (d) the conservation of the living resources of the sea; (e) the prevention of infringement of the fisheries laws and regulations of the coastal State; (f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; (g) marine scientific research and hydrographic surveys; (h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State.”17 Hence, State B may adopt these laws and regulations in the hopes of conserving the living resources in the area. State B may also claim against the Archipelagic State A that, under Article 51 of the UNCLOS, “shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters.”18 If State B can then prove that it has been traditionally fishing in the said areas, then it can claim as against State B that its fishing rights in the area. The said provision further provides that “the terms and conditions for the exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at the request of any of the States concerned, be regulated by bilateral agreements between them, and that such rights shall not be transferred to or shared with third States or their nationals.”19 State A may claim rights under the concept of Exclusive Economic Zone (EEZ) which is provided for in Articles 55 to 75 of the UNCLOS. Under Articles 55 and 56, “the EEZ is an area beyond and adjacent to the territorial sea where a nation can engage in exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil.”20 Furthermore, it “has jurisdiction with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; and has other rights and duties provided for in the UNCLOS.”21 The EEZ however, “cannot extend beyond 200 nautical miles from the baseline of the state.”22 Hence, if State A is to claim rights under the concept of the exclusive economic zone, then it must comply with this measurement of not beyond 200 nautical miles from the baseline of the state. The other activities which may take place in the country claiming EEZ, are provided for in Articles 58 to 75.23 Under Article 60 of the UNCLOS, “the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the purposes provided for in Article 56 and other economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.”24 Furthermore, “the coastal State shall have exclusive jurisdiction over such artificial islands, installations and structures, including jurisdiction with regard to customs, fiscal, health, safety and immigration laws and regulations.”25 Article 61 of the UNCLOS also provides that “the coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.”26 Further, “the coastal State, taking into account the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation.”27 Aside from those mentioned above, the coastal state has the following duties as regards the utilization of living resources under the UNCLOS: “1. The coastal State shall promote the objective of optimum utilization of the living resources in the exclusive economic zone without prejudice to Article 61. 2. The coastal State shall determine its capacity to harvest the living resources of the exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having particular regard to the provisions of Articles 69 and 70, especially in relation to the developing States mentioned therein. 3. In giving access to other States to its exclusive economic zone under this article, the coastal State shall take into account all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks. 4. Nationals of other States fishing in the exclusive economic zone shall comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State. These laws and regulations shall be consistent with this Convention and may relate, inter alia, to the following: (a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; (b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; (c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; (d) fixing the age and size of fish and other species that may be caught; (e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; (f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; (g) the placing of observers or trainees on board such vessels by the coastal State; (h) the landing of all or any part of the catch by such vessels in the ports of the coastal State; (i) terms and conditions relating to joint ventures or other cooperative arrangements; (j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State's capability of undertaking fisheries research; (k) enforcement procedures. 5. Coastal States shall give due notice of conservation and management laws and regulations.”28 These then may be claimed by State A as against State B, in case the said areas are within the EEZ of State A. The UNCLOS also provides for the delimitation of the exclusive economic zone between States with opposite or adjacent coasts. Article 74 of the UNCLOS provides that “the delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”29 However, in case no agreement is reached within a reasonable period of time, “the States concerned shall resort to the procedures provided for in Part XV” or the obligation of the States to settle disputes through peaceful means.30 Article 74 stresses that States “shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.”31 The same provision is also provided in case of the delimitation of the continental shelf.32 The concept of continental shelf is discussed in Part VI of the UNCLOS and which claim may also be used by either claimant states. The UNCLOS provides that, “the continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.33 Hence, sovereign rights may further be claimed by State A which include the sovereign rights “of exploring it and exploiting its natural resources.”34 Said provision explains that “natural resources consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.”35 Related Cases The contending states may have a similar situation as in the case of China and the other countries disputing the islands in the South China Sea. In this case, China did not accept the “historical rights and actual possession” claims of other contending states in the South China Sea islands.36 In the San Francisco Conference of September 1951, the allied powers were unsuccessful in identifying who had title to the islands in the South China Sea islands especially at that time when Japan was divested of possession after the Pacific War.37 Article 2(f) of the San Francisco treaty only stated that “Japan renounces all right, title and claim to the Spratly Islands and to the Paracel Islands.”38 This then resulted on what Valero called as “legal and political vacuum” which permitted other states to mention their respective claims.39 As commented by Buszynski, “although China had historical claims over the islands, historical claims are insufficient and need to be perfected by a demonstration of ‘continuous and effective acts of occupation’ before the title can be recognized in law.40 The significance of effective occupation was recognized “as a precedent in the Island of Palmas, heard by the Permanent Court of Arbitration on 4 April 1928.”41 Cases such as Clipperton (28 January 1931) and Eastern Greenland (5 April 1932) affirming the same decision.42 As Valero comments, “these cases not only affirmed the importance for states to occupy islands irrespective of historical claims in the expectation that the title would follow.”43 Hence, in the scenario for instance wherein State A has historical claims over the islands, State A must still prove that it had occupied the islands before it can claim sovereign rights of them. Although occupation may be significant in asserting a State’s right over islands claimed, “legality does not offer them full security.”44 The UNCLOS specifically describing the maritime zones on continental shelf and the EEZ, only grants “a right to resources but not to the islands.”45 There must be some other legal basis in order to justify claim over the islands. However, under the concept of Regime of Islands under Article 121 of the UNCLOS, “possession of the islands brings access to resources wherein the islands can generate their own EEZs and continental shelves.”46 Hence, occupation of the islands does not immediately settle the dispute over the title to such islands claimed, especially if there are opposing historical claims.47 There is still a need for a “final determination of sovereignty” at some stage.48 As regards the claims on the rocks and reefs occupied by the claimants, Article 121(3) of the UNCLOS provides that “rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf.”49 However, these rocks are “not prevented from having other maritime zones not proscribed in the section above such as territorial seas and contiguous zones.”50 Further, economic viability can be interpreted in various ways and so long as “the waters around a rock or a reef are regularly used for fishing or temporary shelter it may have an ‘economic life’ of its own.”51 With this, State A in the scenario or even State B, may treat such rocks as “generating maritime zones as long as offshore waters were regularly used for fishing” thus allowing for EEZ and continental shelves to attach to the occupied rocks and reefs.52 States A and B therefore have the burden of proof in proving their opposing claims, under a general principle of law wherein “a party which advances a point of fact in support of its claim must establish that fact.”53 It is also worthy to note that there might be a treaty involved concerning the passing of sovereignty between two states.54 The agreement might be tacit and gleaned from the conduct of the Parties.55 As held in the case between Malaysia and Singapore over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, “international law does not impose any particular form but places its emphasis on the parties’ intentions.”56 Aside from treaties, “sovereignty over territory might under certain circumstances pass as a result of the failure of the State which has sovereignty to respond to conduct à titre de souverain of the other State or to concrete manifestations of the display of territorial sovereignty by the other State.”57 If there is an absence of reaction to acts implying the exercise of sovereignty, this “may well amount to acquiescence.”58 Hence, it is important that the conduct of the Parties be determined in the context of international law and “relations of State sovereignty over territory and of the stability and certainty of that sovereignty.”59 As held in the said decision between Malaysia and Singapore, “any passing of sovereignty over territory on the basis of the conduct of the Parties must be manifested clearly and without any doubt by that conduct and the relevant facts.”60 Applying this to the scenario at hand, it is important to find out if there are manifestations of sovereignty to which the other state allowed or did not respond to. This then may amount to acquiescence. In the scenario, State A had granted an exploration and exploitation license to an international oil company to develop an oil field within the disputed waters off an island within 3 nm of the coastline of state B. If B has not reacted to this, absent any agreement between such States, this may be well interpreted as acquiescence of it’s sovereign rights over the said islands and areas. Libya/Malta Case In this case decided by the International Court of Justice (ICJ) in 1986, it recognized a method for the ICJ in deciding cases involving maritime boundaries. The Court stated that it, “considers 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 sea-bed 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. This is especially clear where verification of the validity of title is concerned, since, at least in so far as those areas are situated at a distance under 200 miles from the coasts in question, title depends solely on the distance from the coasts of the claimant States of any areas of sea-bed claimed by way of continental shelf, and the geological or geomorphological characteristics of those areas are completely immaterial.”61 Hence, in this case, the natural prolongation as ascribed in the continental shelf under Article 76 of the UNCLOS has already been replaced as its basis for delimiting offshore maritime zones except portions of the “continental shelf that may extend beyond the 200 nautical mile line.”62 Furthermore, there is no relevance attributed to the geology and geomorphology of the seabed in cases “where a common maritime boundary was to be delimited.”63 Applying this to the scenario at hand, State B, in case it claims rights under continental shelf under the UNCLOS, equidistance line between the coastlines are of significance in asserting its claim rather than on the natural prolongation or its geological features. Measurement therefore is of significance if State B is to assert its rights over the area. Conclusion In assessing the sovereign rights of contending states “historic title, treaty transfers, conquest, occupation and prescription all play a role”64 in the determination of sovereign rights over islands and areas claimed. Different factors must also be taken into consideration such as the “adjacency of their coastlines and coastal zones as prescribed by contemporary international law.”65 Even rights under the maritime zones, do not confer sovereignty over areas. However, it is important that the UNCLOS be made basis on whether there are valid and legitimate claims over the areas disputed. In this scenario where there are opposing claims as between State A and B, it is best that there be a peaceful settlement between parties. However, in case this does not prove to be successful, the provisions of UNCLOS should be applied and proof for claiming a title to the islands and the areas must be presented. Works Cited Buchholz, Hanns J. Law Of The Sea Zones In The Pacific Ocean 36 (1989). Buszynski, Leszek and Iskandar Sazlan. “Maritime Claims and Energy Cooperation in the South China Sea.” Contemporary Southeast Asia, Volume 29 No. 1 (2007), pp.143-71. Retrieved 17 February 2010 from: [http://www.southchinasea.org/docs/Buszynski%20and%20Sazlan-Maritime%20Claims%20and%20Energy%20Cooperation%20in%20the%20SCS.pdf]. Charney, Jonathan. “Central East Asian Maritime Boundaries And The Law Of The Sea.” 89 American Journal of International Law 724. October 1995. Charney, Jonathan. “Rocks That Cannot Sustain Human Habitation.” American Journal of International Law 93 No. 4 (October 1999). pp.863-877. Cheng, Tao. “The Dispute over the South China Islands” 10 Texas International Law Journal 265 (1975), at 270-72. Continental Shelf (Libya v. Malta), 1985 I.C.J. at 35. Delimitation of Maritime Areas (Can. v. Fr.), 31 I.L.M. at 1165. Gao, Zhiguo. “The South China Sea: From Conflict to Cooperation?” 25 Ocean Development and International Law. 345, 346-49 (1994). International Court of Justice. “Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore).” 23 May 2008. Retrieved on 17 February 2010 from: [http://www.icj-cij.org/docket/files/130/14506.pdf]. J. R. V. Prescott, Maritime Jurisdiction In Southeast Asia: A Commentary And Map 32- 33, 41 (East-West Environment and Policy Institute Research Report No. 2, 1981) at 13-45. Nachura, Antonio. Outline Reviewer in Political Law. Manila, Philippines: VJ Graphic Arts, Inc. 2006. Print. Rowan, Joshua. UNCLOS and Sovereignty Claims in the South China Sea. Asian Survey, Vol. XLV, No. 3, May/June 2005. Retrieved on 17 February 2010 from: [http://www.nguyenthaihocfoundation.org/lichsuVN/UNCLOS-sovereignty.pdf]. Kaye, Stuart. “Lessons Learned From The Gulf Of Maine Case: The Development Of Maritime Boundary Delimitation Jurisprudence Since Unclos III.” 14 Ocean & Coastal L.J. 73. 2008. Kien-hong Yu, Peter. “Issues on the South China Sea: A Case Study.” 11 Chinese Yearbook of International Law and Affairs 138 (1991-92). Kuan-tsyh Yu, Steven. “Who Owns the Paracels and the Spratlys? An Evaluation of the Nature and Legal Basis of the Conflicting Territorial Claims, in Fishing In Troubled Waters 48 (R. D. Hill, Norman G. Owen & E. V. Roberts eds, 1991). R. Haller-Trost, The Spratly Islands (Centre of South-East Asian Studies Occasional Paper No. 14, University of Kent at Canterbury, 1990). United Nations Convention on the Law of the Sea. Articles 2, 3, 15, 21, 46, 47, 51, 56, 57, 60, 61, 62, 74, 83 and 121. Valero, Gerardo. “Spratly Archipelago Dispute: Is the Question of Sovereignty Still Relevant?” Marine Policy 18 No. 4, 1994. pp. 314-344. Valencia, Mark J. “The South China Sea: Prospects for Marine Regionalism.” Marine Policy, Apr. 1978, at 92. Read More