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Rocks That Cannot Sustain Human Habitation

Published online by Cambridge University Press:  02 March 2017

Jonathan I. Charney
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American Journal of International Law , Volume 93 , Issue 4 , October 1999 , pp. 863 - 878
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Copyright © American Society of International Law 1999

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References

1 United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 121 (3), 1833 UNTS 3 (Arabic), 203 (Chinese), 397 (English), and 1834 UNTS 4 (French), 179 (Russian), 371 (Spanish), reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983) (entered into force Nov. 16, 1994) [hereinafter LOS Convention]. The documents and summaries of the debates at the Third United Nations Conference on the Law of the Sea, as corrected by participating delegations, are published in the 17-volume set, Third United Nations Conference on the Law of the Sea, Official Records, UN Sales Nos. E.75.V.3–5, E.75.V.10, E.76.V.8, E.77.V.2, E.78.V3–4, E.79.V3–4, E.80.V.6, E.80.V.12, E.8.1.V.5, E.82.V.2, E.83.V.4, and E.84.V.2–3 (1974–82) [hereinafter UNCLOS III OR]. Those records relating to islands are collected in United Nations Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Régime of Islands, UN Sales No. E.87.V.II (1988) [hereinafter Régime of Islands].

2 See Jonathan I. Charney, Central East Asian Maritime Boundaries and the Law of the Sea, 89 AJIL 724 (1995).

3 LOS Convention, supra note 1.

4 Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205 (entered into force Sept. 10, 1964).

5 LOS Convention, supra note 1, Art. 5; Convention on the Territorial Sea and the Contiguous Zone, supra note 4, Art. 3. The LOS Convention adds the low-water line of fringing reefs. LOS Convention, supra, Art. 6.

6 LOS Convention, supra note 1, Arts. 9, 10.

7 Id., Arts. 7, 47, 48.

8 Id., Art. 121 (1); Convention on the Territorial Sea and the Contiguous Zone, supra note 4, Art. 10(1).

9 LOS Convention, supra note 1, Art. 121 (2). See also Convention on the Territorial Sea and the Contiguous Zone, supra note 4, Art. 10(2). Thus, a rock that has an elevation above high tide is part of die normal baseline unless another article of the Convention denies it that role. A feature surrounded by water at low tide but submerged at high tide is a low-tide elevation, which, pursuant to Article 13, is denied the role of a baseline if it is located beyond the 12-nautical-mile territorial sea generated from the normal baseline of a mainland coast or an island coast. LOS Convention, supra note 1, Art. 13.

10 LOS Convention, supra note 1, Art. 121, especially paras. 2, 3.

11 This view is at least implicit in the recent Eritrea/Yemen arbitral award in regard to the Mohabbakahs—“four rocky islets which amount to little more than navigational hazards.” Award in the First Stage of the Proceedings (Eritrea/Yemen), Territorial Sovereignty and Scope of the Dispute, para. 4 (Oct. 6, 1998) (visited May 13, 1999) <http://www.euronet.nl/users/pca/> and (visited May 12,1999) <http://www-ibru.dur.ac.uk/links.html>. See also Haritini Dipla, Le Régime Juridique des îles dans le droit international de la mer 48–49 (1984). In the Anglo/French arbitration, Eddystone Rock was used as a base point by die tribunal to delimit die equidistant line between the United Kingdom and France even though its status as an island or a low-tide elevation was in question. France was found to have accepted Eddystone Rock as a base point for the delimitation of the UK fishery limits. Delimitation of the Continental Shelf (UK/Fr.), paras. 134–44, 18 R.I.A.A. 3, 70–74 (June 30, 1977), reprinted in 54 ILR 6, 79–83, 18 ILM 398, 427, 433–35 (1979) [hereinafter Anglo/French arb.]. See also Continental Shelf (Tunis./Libya), 1982 ICJREP. 18, 89, para. 129 (Feb. 24) [hereinafter Tunisia/Libya case].

12 See Maria Silvana Fusillo, The Legal Régime of Uninhabited “Rocks” Lacking an Economic Life of Their Own, 4 Italian Y.B. Int’l L. 47, 47–49 (1978–79); Dipla, supra note 11, at 41, 42, 49.

13 Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471, 499 UNTS 311 (entered into force June 10,1964).

14 Fiji and Cyprus argued this point at UNCLOS III. See 2 UNCLOS III OR, supra note 1, at 283, para. 50, Régime of Islands, supra note 1, at 58 (Fiji); 2 UNCLOS III OR, supra, at 287, para. 18, Régime of Islands, supra, at 64 (Cyprus). There was some difference in the jurisprudence regarding die rules on international maritime boundary delimitation. See North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 33–45, paras. 48–81 (Feb. 20), where the Court found that the rule on continental shelf delimitation in the Continental Shelf Convention, supra, note 13, Art. 6, did not reflect existing general international law. Subsequendy, the difference was eliminated. See Anglo/French arb., supra note 11, paras. 65–69,18 R.I.A.A. at 43–45, 54 ILR at 54–55, 18 ILM at 420–21; Maritime Delimitation in the Area between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ Rep. 38, 58–59, 67–69, paras. 46, 65–68 (June 14) [hereinafter Jan Mayen case]. See also Jonathan I. Charney, Progress in International Maritime Boundary Delimitation, Law, 88 AJIL 227, 244–47 (1994).

15 Certainly, the Article 13 rule on the role of low-tide elevations includes rocks that only meet the elevation requirement. Since die Convention carries a binary classification system based on elevation, rocks whose elevation is permanendy above high tide fall within the “Regime of islands.”

16 Statements in favor of the commons included 2 UNCLOS III OR, supra note 1, at 285, paras. 72, 73, Régime of Islands, supra note 1, at 61 (Singapore); 16 UNCLOS III OR, supra note 1, at 106, para. 8, Régime of Islands, supra, at 107 (Denmark); 16 UNCLOS HI OR, supra, at 106, para. 31, Régime of Islands, supra, at 107 (Trinidad and Tobago). Island states argued in favor of full zonal parity for their features. See 17 UNCLOS III OR, supra note 1, at 70, para. 70, Régime of Islands, supra, at 110 (Cyprus).

17 See 14 UNCLOS III OR, supra note 1, at 77, para. 29, Régime of Islands, supra note 1, at 99 (Dominica); 17 UNCLOS III OR, supra note 1, at 72, para. 88, Régime of Islands, supra, at 72 (Romania).

18 LOS Convention, supra note 1, Arts. 17–32, 34–45, 49, 52–54, 58.

19 Id., Arts. 57, 76.

20 See Charney, supra note 2; Maritime Boundary Issues and Islands Disputes in the East Asian Region: Proceedings of the 1st Annual Conference (Kim Young-Koo ed., 1998); International Law Conference on the Dispute Over Diaoyu/Senkaku Island (Taiwan Law Society & Taiwan Institute of International Law eds., 1997).

21 Consequently, upon joining the LOS Convention, the United Kingdom ordered that Rockall not be used as a base point for defining its 200-nautical-mile fishery limits in the open seas. Fishery Limits Order, S.I. 1997, No. 1750. Rockall is a rock feature that qualifies as an island under Article 121(1). It is located in the North Atlantic Ocean far from any other island or mainland, about 200 nautical miles west of the Hebrides. Its small surface area consists of 624 square meters (0.000241 square nautical miles) and is uninhabited. The United Kingdom claims sovereignty over the feature and prior to issuing the Fishery Limits Order had asserted the right to use Rockall to delimit its extended maritime zones. If used, the feature might be relevant to the international maritime boundaries between the United Kingdom and the Republic of Ireland, Denmark (Faeroe Islands) and Iceland. The order marks the United Kingdom’s retreat from the use of Rockall for any of these purposes. See generally Dipla, supra note 11, at 41, 42, 49; James H. Rodgers, The Continental Shelf of Ireland: The Law and Politics of Delimitation, 3 UCLAJ. Int’l L. & Foreign Aff. 129, 140–41 (1998); E. D. Brown, Rockall and the Limits of National Jurisdiction of the UK—Part 2, 2 Marine Pol’y 275, 289–90 (1978); J. R. V. Prescott, The Maritime Political Boundaries of the World 328–29 (1985).

22 “An island is a naturally formed area of land, surrounded by water, which is above water at high tide.” LOS Convention, supm note 1, Art. 121(1) (emphasis added). See also Convention on the Territorial Sea and the Contiguous Zone, supranote 4, Art. 10(1).

23 This is consistent with the ambulatory nature ofthe normal baseline. See infra note 25.

24 Denmark, however, spoke of “islets and rocks which offered no real possibility for economic life and were situated far from the continental land mass.” 2 UNCLOS III OR, supm note 1, at 279, para. 5, Régime of Islands, supra note 1, at 55. But the United Kingdom suggested that it would be unfair to deny zones to a feature that had the potential for development. 2 UNCLOS III OR, supra, at 288, para. 36, Régime of Islands, supra, at 66. Venezuela made a similar observation. It also considered that “economic life of their own” did not require “complete self-sufficiency, but the existence of natural resources which could be exploited economically or the possibility of other uses.” 14 UNCLOS III OR, supra note 1, at 21, para. 18, Régime of Islands, supra, at 97. In a declaration made at signature, Iran addressed uninhabited islands in semienclosed seas. According to Iran, if they

potentially can sustain human habitation or economic life of their own but, due to climatic conditions, resource restriction or other limitations have not yet been put to development, [they] fall within the provisions of paragraph 2 of article 121 … and have, therefore, full effect in boundary delimitation of various maritime zones ofthe interested coastal States.

Office of the Special Representative of the Secretary-General for the Law of the Sea, The Law of the Sea, Status of the United Nations Convention on the Law of the Sea 17, 18, UN Sales No. E.85.V.5 (1985), Régime of Islands, supra, at 113. For a study of Article 121 (3), see Barbara Kwiatkowska & Alfred H. A. Soons, Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own, 21 Neth. Y.B. Int’l L. 139 (1990).

25 See United States v. Alaska, 521 U.S. 1, 31 (1997); United States v. Louisiana, 394 U.S. 1, 5 (1969) (Texas Boundary Case); Louisiana Boundary Case, 394 U.S. 11, 32–34 (1969); United States v. Louisiana, 389 U.S. 155, 162 n.2 (1967) (Stewart, J., concurring in result); United States v. Louisiana, 382 U.S. 288, 290 (1965); United States v. California, 381 U.S. 139, 177 (1965). One might argue that the ambulatory baselines resulting from geological changes are different in kind and likely significance from those that result from reclassifying an island as an Article 121(3) rock. Such a reclassification would determine whether the feature is entitled to an exclusive economic zone and a continental shelf. Arguments based on the values of stability, and protection against overreaching into the common spaces by coastal states, would support this interpretation. On the other hand, similar category shifts are permitted for low-tide elevations in the cases of systems of straight baselines and archipelagic baselines, depending upon whether “lighthouses or similar installations which are permanendy above sea level have been built on them.” LOS Convention, supra note 1, Arts. 7(4), 47(4). Furthermore, when greater stability has been desired, states have addressed that objective explicitly by establishing special rules for systems of straight baselines (especially such baselines around deltas) and archipelagic baselines. Id., Arts. 7, 47. On this basis, one must conclude that unless such stability was expressly built into the provision on rocks (e.g., by freezing the classification of such features as of a date certain), Article 121 (3) should be interpreted to be consistent with the ambulatory nature of baselines in general.

26 Romania: draft articles on delimitation of marine and ocean space between adjacent and opposite neighboring States and various aspects involved (July 23, 1974), Art. 2(3), 3 UNCLOS III OR, supra note 1, at 195, Régime of Islands, supra note 1, at 30; Statement of activities of the Conference during its first and second sessions prepared by the Rapporteur-general: Mr. Kenneth O. Rattray (Jamaica) (Oct. 17, 1974), Working paper of the Second Committee: Main Trends, Provision 243, Formula A, para. 3, 3 UNCLOS III OR, supra, at 93,141, Régime of Islands, supra, at 78 [hereinafter 2d Comm. Working Paper]. The word “or” began to be used only during the third session of the conference in the Informal Single Negotiating Text. Informal single negotiating text, Text presented by the Chairman of the Second Committee (May 7,1975), Art. 132(3), 4 UNCLOS III OR, supra note 1, at 137,171, Régime of Islands, supra, at 83 [hereinafter ISNT]. It was carried forward in the fourth session into the Revised Single Negotiating Text without comment. Revised single negotiating text, Text presented by the Chairman of the Second Committee (May 6, 1976), Art. 128 (3), 5 UNCLOS III OR, supra note 1, at 125, 172, Régime of Islands, supra, at 85 [hereinafter RSNT]. In the ninth session, Dominica appeared to suggest that “or” should be interpreted as “and.” 14 UNCLOS III OR, supra note 1, at 77, para. 29, Régime of Islands, supra, at 99.

27 See 1 UNCLOS HI OR, supra note 1, at 71, para. 4, Régime of Islands, supra note 1, at 23 (Trinidad and Tobago); 1 UNCLOS in OR, supra, at 84, paras. 65, 66, 69, Régime of Islands, supra, at 23 (Western Samoa); 1 UNCLOS III OR, supra, at 141, paras. 25, 27, Régime of Islands, supra, at 25 (Netherlands); 1 UNCLOS III OR, supra, at 175, para. 40, Régime of Islands, supra, at 27 (Cyprus); 1 UNCLOS III OR, supra, at 200, para. 25, Régime of Islands, supra, at 28 (New Zealand); 2 UNCLOS III OR, supra note 1, at 278–79, paras. 69–72, Régime of Islands, supra, at 37 (New Zealand); 2 UNCLOS III OR, supra, at 190, paras. 46, 47, Régime of Islands, supra, at 39 (Tonga); 2 UNCLOS III OR, supra, at 176–77, para. 88, Régime of Islands, supra, at 52 (Cyprus); 2 UNCLOS III OR, supra, at 89, para. 27, Régime of Islands, supra, at 53 (Greece); 2 UNCLOS III OR, supra, at 89, para. 37, Régime of Islands, supra, at 53 (Iceland); 2 UNCLOS III OR, supra, at 283, paras. 48–51, Régime of Islands, supra, at 58 (Fiji); 2 UNCLOS HI OR, supra, at 288, paras. 34–41, Régime of Islands, supra, at 66 (United Kingdom); Statement by die Chairman of die Joint Committee of the Congress of Micronesia submitted on behalf of the Congress by the United States of America (Aug. 27, 1974), 3 UNCLOS III OR, supra note 1, at 84, Régime of Islands, supra, at 28, 29.

28 The argument might even be made that the use of an island as a base for the exploitation of resources further offshore would be sufficient to establish an “economic life of its own.” Since the right to such resources beyond the territorial sea is the crux of the issue, however, these resources probably should not be taken into account. By definition, such features do not generate their own rights to resources beyond the territorial sea.

29 See 2 UNCLOS III OR, supra note 1, at 280, para. 17, Régime of Islands, supra note 1, at 55 (Colombia); 2 UNCLOS III OR, supra, at 279, para. 5, Régime of Islands, supra, at 55 (Denmark); 2d Comm. Working Paper, supra note 26, Main Trends, Provision 239, Formula C, at 140, Régime of Islands, supra, at 73; 2d Comm. Working Paper, supra, Main Trends, Provision 243, Formula C, at 142, Régime of Islands, supra, at 78; Romania: draft articles on definition of and régime applicable to islets and islands similar to islets (Aug. 12, 1974), Art. 1(2), 3 UNCLOS III OR, supra note 1, at 228, 228, Régime of Islands, supra, at 40. It was also suggested that the island within the EEZ of a state must be one-tenth of the surface of the state in order to generate its own EEZ. Turkey: draft articles on enclosed and semi-enclosed seas (Aug. 13, 1974), Art. 3 (2), 3 UNCLOS III OR, supra, at 230, Régime of Islands, supra, at 43; 2d Comm. Working Paper, supra, Main Trends, Provision 241, Formula D, para. 1, Régime of Islands, supra, at 75. A primary concern seemed to be that midocean islets might generate huge areas of ocean space. 2 UNCLOS III OR, supra, at 279, paras. 1–5, Régime of Islands, supra, at 55 (Denmark); 2 UNCLOS III OR, supra, at 280, para. 17, Régime of Islands, supra, at 55 (Colombia); 2 UNCLOS III OR, supra, at 285, paras. 72, 73, Régime of Islands, supra, at 61 (Singapore); 16 UNCLOS III OR, supra note 1, at 106, para. 8, Régime of Islands, supra, at 107 (Denmark); 16 UNCLOS III OR, supra, at 108, para. 31, Régime of Islands, supra, at 107 (Trinidad and Tobago.).

30 The term “rocks” was first introduced at the third session of the Law of the Sea Conference in the ISNT, supra note 26, Art. 132 (3), at 170–71, Régime of Islands, supra note 1, at 83. It was carried forward at the fourth session into the RSNT without comment. RSNT, supra note 26, Art. 128 (3), at 72, Régime of Islands, supra, at 85. France expressed its opposition to the entire provision during the ninth session. 13 UNCLOS III OR, supra note 1, at 30, para. 72, Régime of Islands, supra, at 95. In the eleventh session, the United Kingdom expressed its opposition to Article 121 (3). 16 UNCLOS III OR, supra note 1, at 91, para. 57, Régime of Islands, supra, at 105. Japan did so as well. 16 UNCLOS III OR, supra, at 96, para. 43, Régime of Islands, supra, at 105.

31 See 14 UNCLOS III OR, supra note 1, at 21, para. 18, Régime of Islands, supra note 1, at 97; 16 UNCLOS III OR, supra note 1, at 15, para. 15, Régime of Islands, supra, at 103.

32 Webster’s unabridged dictionary provides several definitions:

a usu[ally] bare cliff, promontory, peak, or hill that is one mass … consolidated or unconsolidated solid mineral matter composed of one or usu[ally] two or more minerals or partly of organic origin (as coal) that occurs naturally in large quantities or forms a considerable part of the earth’s crust <granite, sand, gravel, clay, and glacial ice are [rock]s>.

Webster’s Third New International Dictionary of the English Language Unabridged 1965 (P. B. Gove ed., 1993). A geographer’s definition is no more helpful: “A coherent, consolidated and compact mass of mineral matter. … A place-name for a prominent cliff, peak or sea stack … .” John B. Whittow, The Penguin Dictionary of Physical Geography 458–59 (1984). “One of the solid materials of which the earth’s crust is mainly composed, being made up of minerals…. More popularly, a rock is any large mass of the harder portions of the earth’s crust.” W. G. Moore, The Penguin Dictionary of Geography 186 (7th ed. 1988). Geological definitions also vary:

An aggregate of one or more minerals … or a body of undifferentiated mineral matter … or of solid organic material …. Any prominent peak, cliff, or promontory, usually bare, when considered as a mass …. A rocky mass lying at or near the surface of a body of water, or along a jagged coastline ….

Glossary of Geology 553 (Julia A. Jackson ed., 4th ed. 1997).

33 See 2 UNCLOS III OR, supra note 1, at 288, para. 36, Régime of Islands, supra note 1, at 45 (United Kingdom); 14 UNCLOS III OR, supra note 1, at 21, para. 18, Régime of Islands, supra, at 97 (Venezuela).

34 The travaux préparatoires mention that military or other governmental installations would not satisfy these requirements. No state disputed this assertion. See 2 UNCLOS III OR, supra note 1, at 284, para. 63, Régime of Islands, supra note 1, at 45 (Turkey). The text of Article 121(3) leaves this matter unaddressed. Clagett argues, without authoritative support, “that the ‘human habitation’ formula should be construed to require the actuality (or at least the possibility) of a permanent civilian population; lighthouse-keepers and troops forming a garrison and supplied from the outside do not count.” Brice M. Clagett, Competing Claims of Vietnam and China in the Vanguard Bank and Blue Dragon Areas oftlte South China Sea: Part 1,13 Oil & Gas L. & Tax’n Rev. 375, 386 (1995). Clagett’s point is well-taken if one considers the requirement that the feature must have an “economic life of its own.” Outside state support for a non-economically viable occupation would be inconsistent with this requirement, and one can assume that the same would hold true for the requirement that the feature be capable of sustaining human habitation. However, Clagett writes:

It would be an obvious abuse of the Convention for a state to attempt to upgrade the status of an Article 121(3) “rock” by artificially introducing a population, supplied from outside, for the sole purpose of enhancing the state’s argument that the rock was entided to command broad areas of maritime space ….

Id. In my opinion, the actuating reasons for the development of the feature are legally irrelevant; the real question is whether the feature, in fact, has the necessary capabilities, even if the start-up funding might come from outside sources. In some situations the location of the feature may be the essence of its value: it might be the perfect place for an optical telescope or satellite-tracking station forprivate enterprise. Again, human habitation would probably be a concomitant part of realizing die feature’s value.

Kwiatkowska & Soons, supra note 24, at 164, have suggested diat die posting of Norwegian officials to Jan Mayen constituted habitation relevant to Article 121 (3). The fact that Jan Mayen is an island under paragraphs 1 and 2 of Article 121 and not a rock under paragraph 3 was unquestioned, however, in both of the dispute setdement proceedings involving the international maritime boundaries of Jan Mayen. Jan Mayen case, supra note 14, 1993 ICJ Rep. at 73–74, para. 81; Report and Recommendations of the Conciliation Commission on the Continental Shelf Area between Iceland and Jan Mayen (Ice./Nor.), sec. IV, 62 ILR 108, 114 (May 19–20, 1981), 20 ILM 797, 803–04 (1981) [hereinafter Jan Mayen conciliation]. Because of its size alone, Jan Mayen is not a rock, which makes the question of habitation and economic life irrelevant. Jan Mayen is 54.8 kilometers long, far larger than the types of features under consideration at UNCLOS III for inclusion in Article 121 (3). Jan Mayen case, 1993 ICJ Rep. at 65, para. 61.

35 For the different language texts, see LOS Convention, supra note 1. Translation assistance was provided by Professor Gennady Danilenko, Mr. Kal Helou and Ms. Ying Juan Rogers.

36 Kwiatkowska & Soons, supra note 24, at 174–80.

37 The change of policy undertaken by the United Kingdom in regard to Rockall is consistent with this history. See supra note 21.

38 There were 130 parties as of April 11, 1999 (visited Apr. 30, 1999) <http://www.un.org/Depts/los/los94st.htm>. See generally Jonathan I. Charney, Universal International Law, 87 AJIL 529 (1993).

39 E.g., the United States.

40 See Restatement (Third) of the Foreign Relations Law of the United States §102 cmt. j (1987) [hereinafter Restatement].

41 Convention on the Territorial Sea and the Contiguous Zone, supra note 4; Convention on the High Seas, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82 (entered into force Sept. 30, 1962).

42 See Restatement, supra note 40, §102 reporters’ note 4, at 33.

43 See Kaldone G. Nweihed, France (Guadeloupe and Martinique)-Venezueta, Report No. 2-11, in International Maritime Boundaries 601, 607–08 (Jonathan I. Charney & Lewis M. Alexander eds., 1992); Kaldone G. Nweihed, The Netherlands (Antilles)–Venexuela, Report No. 2-12, in id. at 615, 623; Kwiatkowska & Soons, supra note 24, at 177; Prescott, supra note 21, at 352; A. H. A. Soons, Commentaar, in Volkenrechtelijke aspecten van Antilliaanse onafhankelijkheid 269, 278–99 (H. Meijers ed., 1980).

44 Delimitations submitted to judicial or arbitral tribunals that are charged with applying international law to international maritime boundary disputes would, of course, be more indicative of general international law.

45 See Louis B. Sohn, Baseline Considerations, in International Maritime Boundaries, supra note 43, at 153.

46 LOS Convention, supra note 1, Art. 13. See Convention on the Territorial Sea and the Contiguous Zone, supra note 4, Art. 11(1).

47 LOS Convention, supra note 1, Arts. 7(4), 13, 47(4).

48 Id., Arts. 7 (4), 47 (4). Other geographical requirements are found in id., Arts. 7(1)–7(3), 47(1)–47(3), 47(5), 47(7).

49 Id., Arts. 7(4), 47(4).

50 Id., Art. 7(2).

51 Id., Art. 6.

52 2d Comra. Working Paper, supra note 26, Main Trends, Provision 242, Formula A, para. 4, at 141, Régime of Islands, supra note 1, at 76; Romania: draft articles on definition of and régime applicable to islets and islands similar to islets, supra note 29, Art. 2 (1), at 228, Régime of Islands, supra, at 40; 16 UNCLOS III OR, supra note 1, at 97, para. 53, Régime of Islands, supra, at 106 (Romania).

53 See 17 UNCLOS III OR, supra note 1, at 70, para. 70, Régime of Islands, supra note 1, at 110 (Cyprus).

54 See Tunisia/Libya case, supra note 11, 1982 ICJ Rep. at 59–60, paras. 70–71; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246, 293, 299, 300, 339, 340, paras. 91, 92,110, 230, 231 (Oct. 12) [hereinafter Gulf of Maine case]; Delimitation of the Maritime Boundary (Guinea/Guinea-Bissau), 77 ILR 636, 675–76, para. 88 (Feb. 14, 1985), 25 ILM 252, 289 (1986) [hereinafter Guinea/Guinea-Bissau arb.]; Continental Shelf (Libya v. Malta), 1985 ICJ Rep. 13, 38–39, para. 45 (June 3) [hereinafter Libya/Malta case].

55 The Vienna Convention on the Law of Treaties, opened for signature May 23,1969, Art. 31 (3) (c), 1155 UNTS 331, states that the relevant rules of international law should be taken into account when interpreting a treaty. This provision was included especially to address not only the legal context in which the treaty articles should be interpreted, but also the effect of subsequent developments giving rise to intertemporal law issues. See Ian Sinclair, The Vienna Convention on the Law of Treaties 138–40 (1984); Oppenheim’s International Law 1282 (Robert Jennings & Arthur Watts eds., 9th ed. 1992). See Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12, 38–40, paras. 79–84 (Oct. 16).

56 North Sea Continental Shelf, supra note 14, 1969 ICJ Rep. at 36, para. 57.

57 Anglo/French arb., supra note 11, paras. 199–202, 244, 245, 18 R.I.A.A. at 94, 95, 113–16, 54 ILR at 101–03, 123, 18 ILM at 427, 444, 445, 454, 455.

58 Tunisia/Libya case, supra note 11,1982 ICJ Rep. at 64,85, 89, paras. 79, 120, 129 (Djerba (Jerba) Island and the Kerkennah Islands).

59 Libya/Malta case, supra note 54, 1985 ICJ Rep. at 48, para. 64 (Filfla).

60 Gulf of Maine case, supra note 54, 1984 ICJ Rep. at 329–30, 336, 337, paras. 201, 222 (islands along the back of the Gulf, Seal and Mud Islands).

61 Guinea/Guinea-Bissau arb., supra note 54, 77 ILR at 685, para. Ill, 25 ILM at 298 (Alcatraz Island).

62 See Clagett, supra note 34, at 385–87.

63 The tribunal decisions include Anglo/French arb., supra note 11 (Channel Islands, Scilly Islands, Eddystone Rock, Isle of Wight and Ushant); Dubai/Sharjah Border (Dubai v. Sharjah), 91 ILR 543 (arb. Oct. 19,1981) (Abu Musa); Tunisia/Libya case, supra note 11 (Djerba (Jerba) Island and the Kerkennah Islands); Gulf of Maine case, supra note 54 (islands along the back of the Gulf, Seal and Mud Islands); Guinea/Guinea-Bissau arb., supra note 54 (Alcatraz Island); Libya/Malta case, supra note 54 (the Maltese Islands, including Filfla); Delimitation of the Maritime Areas between Canada and the French Republic (St. Pierre and Miquelon) (Can./Fr.), 95 ILR 645 (arb. June 10, 1992) (St. Pierre and Miquelon, Enfant Perdu and Lamaline Shag Rock); Jan Mayen case, supranote 14 (Jan Mayen); Jan Mayen conciliation, supranote 34 (Jan Mayen).

64 The reader might also wish to consult writings that focus on the role of islands in these delimitations. See Derek W. Bowett, The Legal Regime of Islands in International Law (1979); Derek Bowett, Islands, Rocks, Reefs, and Low-Tide Elevations in Maritime Boundary Delimitations, in International Maritime Boundaries, supra note 43, at 131; Dipla, supra note 11; and Húseyin Pazarci, La Délimitation du plateau Continental Etlesiles (1982); Hiran W. Jayewardene, The Regime of Islands in International Law (1990); Clive R. Symmons, The Maritime Zones of Islands in International Law (1979). See also Charney, supra note 2; Jonathan I. Charney, Persian Gulf Disputes: Comments, in Center for Oceans Law and Policy, Security Flashpoints: Oil, Islands, Sea Access and Milftary Confrontation 359 (Myron H. Nordquist & John Norton Moore eds., 1998); Charney, supra note 14.

65 Although there are exceptions in the international agreements, e.g., Aves Island. See text at notes 43–44 supra.

66 See supra note 21 and corresponding text.

67 In part, expanded baseline and continental shelf claims based on sovereignty over small features will be protected against by the possible publicity resulting from such claims, which must be reported to the UN Secretary-General, see LOS Convention, supra note 1, Arts. 16 (2), 76 (9), by the work of the Commission on the Limits of the Continental Shelf with respect to continental shelf limits beyond 200 nautical miles from the baseline, see id., Art. 76(8) & Annex II, and by the International Sea-Bed Authority, see id., Arts. 156–91. Although states may opt to except international maritime boundary disputes from compulsory binding dispute settlement under the LOS Convention, excessive claims regarding baselines and the seaward extent of maritime zones are not subject to exception, see id., Arts. 286–99—other than when the disputes in question concern “historic bays or tides,” see id., Art. 298(1) (a) (i). What entity may bring such a case is yet another issue. The duty not to infringe on the oceans’ common spaces is owed erga omnes, giving all states standing to take appropriate countermeasures. See Jonathan I. Charney, Third State Remedies in International Law, 10 Mich. J. Int’l L. 57 (1989). To the extent that valuable resources of the superjacent waters may exist, or coastal state claims may infringe on the exercise of freedoms of the seas, directly interested states may also be motivated to respond appropriately. General international support for the common spaces and for the International Sea-Bed Authority may also motivate individual states, intergovernmental organizations and nongovernmental organizations to resist such excessive claims.