Whose is The Bed of The Sea? The Problem of Continental Shelf Delimitation In Relation To Small Islands: Part I

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(1)Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. WHOSE IS THE BED OF THE SEA? THE PROBLEM OF CONTINENTAL SHELF DELIMITA nON IN RELATION TO SMALL ISLANDS: PART I. By K.T. Chao*. m. fin.. ( *-~!t;r3t*. it. ~ %-)i$,HUt). *. ~~. *~ ~tf~ ~i~~~l:JNfMii~Jiij!E*~r~Ili ~Ji:W-L.r,,'~ 0 ~:5Cjt5]'/\. w,**mr.~J·ra.L.~~J·r.~$~~~~.W~.~J. ·r ~~$H ~~~.WL.~ ~J ·r~. ~$ •• J ·r~*ft.J·. r l'fJ$J5f,~ J :& r *<§~6u J. 0. * - AliA~rB~n*~@M~~J:&-AA =~r .~~~~~ ~~J~m!E'~~~~~~*~@Mfi~~.~.~ oa ~.~~.u. ~~* fi~-*~. 'lJc:o. ••. ~~.~~'W~~.WMM®~.~~$m*m. mfi~~$m'fl*~ •• W5~a!E'~~~mm~?m ••mM ~~.~~'~*~ ~Wa~?~~fi~M~L..#'~~*~. ~'~~.~E~*~.M~ •• ~M.~?~~.~Z~.~.'~. ±~~*±~~'~*~.M~.~0m~?ffi.~ffi.U~~*~.* t§r~J~;f§~~:Jt= *~®~Z ' :J~~J~1'i~ - *~flw'JEf ' WJ~t~~.~.tm 000~?~~$fi*~@MW.~.~~~~-Httmm~.=~?*~ ~$mfl*~.MW~L..~~~ ~~ - Httm~,~~amm~~. •••. ••. liT ~J j@}fJ 1k~- flll7f''''l ~ '~(5t. r. ?. r. - 1LliJVof· f3 ~1L*~li\¥')l1.~~ J &--:;Iti, :-:'1f, JI~iil2li\lNi$i.t:L~ ii) J I fJ~ r t,f.~M/SL J mfnJ? yt1¥lnilZ~~1tf~fiiJ? ~~ r ~~~m6L J :1ifli IIJ ~)/I<j@ffH*1m~W1fIUl~ -Jtl)!'tt~~$EfU\IJ ? tfmij5J\.*~flW.*f:W.1Iif 'H fil!ti~}ffiiJ~liJiill~. r t~~tiMG J ®~*f.J5fi{flj7i-? r .Wf J 5Ii! r 'N~:j J zt!:. iJi. ,IiHf.ttPA r *~tj!f/SL J jni7f~M}fJ)1jrrm.~-~~l1::JJlJ!U ?. - 1LEA~r*~~M~~J&-AA =~r .~~.~~~~J~ ~~.#~~~*~@M o~~, r~ ~J~ ~~aM?~ ~r~.~~. r 1~.mJ~ J J:.~~jIHif ' ~EfiJ t)~~ :Jt r 'N~.'7 J Jt».l!.lt!\~ r h1;~ J jJn,Wi; r {)1; iiWlr%:ltl!. J ? r *r'J; J W4 r 'J"e; J :il!:i!LR~~ "~ B"J:tm{ftrmf.,l!f·fi;tt*~~w'JH~L~ J ~{iiJ~.53IJ? {;&~~ljU~ , if. i~rcJ!~{lL? :(£m~~*~r~JN~:Iim.o~j '. ~lfIUfIJ? nJlt-W~*:5C .J5fi~ $ill~. *. 0. LL.B., LL.M. (National Chengchi University), LL.B. (Cantab .), Ph.D. (Edinburgh). Visiting Associate Professor of International Law , Department of Diplomacy, National Chengchi Univer­ sity.. -51­.

(2) The Journal of National Chengchi University Vol. 48, 1983. I. Introduction II. What is an Island? A. Definition of the Concept 1. The Hague Codification Conference 1930 2. International Law Commission 1956 Draft 3. Geneva Conventions 1958 4. The United Nations Seabed Committee 1968-73 5. The Draft Convention on the Law of the Sea, 1981 B. Low-tide Elevations 1. The Law Officers' Opinion concerning the Great Barrier Reef 2. Harvard Research on Territorial Sea 3. The Hague Codification Conference 1930 4. The Anglo-Norwegian Fisheries Case 5. Article 11 of the Convention on the Territotial Sea and the Contigu­ ous Zone C. A Lighthouse Built on an Elevation: The Eddystone Rock Problem D. Archipelagoes and Straight Baselines 1. Coastal Archipelagoes 2. Oceanic (or 'mid-ocean' ) Archipelagoes III . The Conventional Delimitation of Seabed Boundaries A. International Aspects B. The Line of Equidistance C. Special Circumstances IV. Customary Principles Concerning Seabed Boundaries A. The Principle of Alluvium and Increment B. The Principle that the Land Dominates the Sea C. The Natural Prolongation Rule D. The Equitable Principles V. Legal Aspects of Troughs A. The Norwegian Trough B. The Impact of International Adjudication VI. State Practice VII. Juridical Opinion VIII. Conclusions. - 52­.

(3) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. 1. Introduction. One of the striking features of the development of international law in this century has ~een the progress of the Third United Nations Conference on the Law of the Sea (UNCLOS III). The function of this Conference is to produce one treaty on all law of the sea issues. Although islands are not fundamentally very important to all the state partici­ pating in the Conference, there is an immense diversity of difficult problems arising . from island situations which need to be examined. As Jennings has stated, the mat­ ter of islands is an important one 'which is difficult and delicate and greatly affects practically everything else' concerning the law of the sea. l The legal regime of islands and the delimitation of sea areas in relation to islands should be dealt with as two separate problems. Whereas the former concerns an island's right to its own exclusive area of jurisdiction, the latter weighs up the convenience or otherwise of taking an island as the basepoint for drawing delimita­ tion. In particular, small islands give rise to legal problems of a difficult and com­ plex sort in the delimitation of continental shelf boundaries between adjacent and opposite states. What is the effect of islands on the delimitation of submarine boundaries be­ tween two or more states? What other factual circumstances are to be taken into account? As we shall see, the answers to these questions, contained in the 1958 Convention on the Continental Shelf and of customary international law do not appear to be satisfactory. This essay will be primarily concerned with an examination of the existing principles of international law which would govern such issues. The separate but important issues of submarine boundary delimitation in respect of isolated small islands, and island chains forming archipelagoes will also be considered, since they are relevant to the specific problems of delimitation in the East and South China Seas which are the subjects of this dissertation. H. What is an Island? A. Definition of the Concept The word 'island' is generally used to describe 'a mass of land (not a continent) surrounded with water'? The Concise Oxford Dictionary of Current English defines 'island' as 'a piece of land surrounded by water? The Universal Webster: An En­ -- 53 -­.

(4) The Journal of National Chengchi University Vol. 48, 1983. glish Dictionary denotes 'island' as a 'body of land, smaller than a continent, which is surrounded by water'.4 The Random House Dictionary of the English Language indicates 'island' as 'a tract of land surrounded by water, and not large enough to be called a continent'.5 The Encyclopedia Britannica designates 'island' as an area of land smaller than a continent and entirely surrounded by water.6 It is rather difficult to state precisely and comprehensively the definition of an island. By modern standards there are certain defects in these standard dictionaries' definitions of the generic term island, for they mention almost nothing of low-water or high-water situations. Islands have been more specifically . described by U.S. Department of State geographer, Robert D. Hodgson as follows: Smaller in size than continents but situated above mean high water at all times are more than one half million pieces of distinctly sub-continental land territory.7. 1. The Hague Codification Conference 1930 The question of what constitutes an island was submitted to participating gov­ ernments by the preparatory committee of the League of Nations for the purpose of the Hague Codification Conference of 1930. South Africa, Germany, Australia, Denmark, Egypt, Estonia, U.S.A., Finland, Great Britain, India, Japan, Norway, New Zealand, Netherlands, Rumania and Sweden replied.s The United Kingdom Government replied as follows: An island is a piece of territory surrounded by water and in normal circumstances permanently above high water. It does not include a piece of territory not capable of effective occupation and use. His Majesty's Government considers that there is no ground for claiming that a belt of territorial waters exists round rocks and banks not constituting islands as defined above, and would view with favour an international agreement to this effect in order that there may be no doubt as to the status of the waters round such rocks and banks and round artificial structures raised upon them .9. This, to a certain extent, answered the definitional question of islands but during the Conference there was some dispute as to the legal requirements for the existence of an island. According to one usage, an island was an area of land which could be effectively occupied and used. tO According to another usage an island was a natural­ ly formed area which showed above the sea. The view of many governments that in order to have territorial waters an island must be capable of occupation and use was not adopted at the Conference. It was, - 54­.

(5) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. however, finally accepted that an island should be permanently above the level of high-tide. The rule adopted by the Sub-Committee II of the Second Commission, includ­ ed the following draft of a provision with reference to 'islands': Every island has its own territorial sea. An island is an area of land, surrounded by water which is permanently above high-water markY. Accordingly, it is suggested that 'an area of land' is to be understood as: 'an appreciable surface above the sea visible in normal water conditions', and it is only when an island, natural or artificial, fulfils this condition that it possesses the juridi­ cal status of an island and can qualify for the possession of territorial watersY The reason why Sub-Committee II decided not to exclude artificial islands 'provided these are true portions of territory' was that it is sometimes extremely difficult to tell whether an island is natural or artificial. For example, if a natcral island is in the process of gradually disappearing beneath the waves and it is decided to erect earthworks so as to keep the island above the level of the sea, it is not al­ together clear whether that island is natural or artificia1. l3 2. International Law Commission 1956 Draft Article 10 of the text evolved by the ILC in 1956 is consistent with the draft of the 1930 Hague Conference. It is accepted that every island has its Qwn territo­ rial sea, and that an island is an ar~a of land, surrounded by water, which in normal circumstances is permanently above high-water mark.l4 But the commentary did in fact clear up some doubts: Article 10 was applica­ ble both to islands situated in the high seas and to islands situated in the'territorial sea. In the case of the latter, their own territorial sea will partly coincide with the territorial sea of the mainland. The presence of the island will create a bulge in the outer limit of the territorial sea of the mainland. The same idea can be expressed in the following form: Islands, wholly or partly situated in the territorial sea, shall be taken into considera­ tion in determining the outer limit of the territorial sea. In addition, an island is understood to be any area of land surrounded by water which, except in abnormal cirCumstances, is permanently above high-water mark.. 3. Geneva Conventions 1958 The 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone - 55­.

(6) The Journal of National Chengchi University Vol. 48, 1983. in Article 10 (1) defines an island as a naturally-formed area ofland, surrounded by water, which is above water at high-tide, and states that it is to be treated in the same way as other l.and areas for the purposes of delimiting the territorial sea. Such a definition, in the first place, excludes any type of artificial island from the legal concept of an island. The exclusion of artificial islands was thus incorporated into Article 121 (1) of the Draft Convention on the Law of the 'Sea, which defines an is­ land as a 'naturally formed area of land'.15 Evidently, this definition is more restric­ tive than that put forward both at the 1930 Hague Codification Conference and by the ILC; by omitting the adverb 'naturally' it was intended to cover artificial islands as well. The definition moreover precludes rocks that only remain dry at low tide from being classified as islands, even if they seat lighthouses or other permanently visible installations. Islands may be considered under two classifications, either as fringing islands, in which case they may be used to delimit a mainland coastline, or as separate geo­ graphic entities, in which case the ordinary rules relating to the measurement of the territorial sea will apply. In effect Article 10(1) recognized that two criteria alone determine whether a land mass completely surrounded by water does or does not generate a field of territorial waters, namely: (a) the land mass must be a naturally formed area of land and not an artificial one,16 e.g. an installation erected on the seabed; and (b) it must always be above water at high tide. 17 Permanently submerged reefs, banks or shoals cannot generate territorial waters. Under this Convention an island, no matter how small, has its own belt of ter­ ritorial sea, provided it lies at a distance from the coast of more than twice the breadth of the territorial sea measured from its baselines. 1B Islands within a distance of twice the territorial sea from the coast are natural appendages of it,19 and a straight baseline may be drawn between such islands if they form a fringe in the immediate vicinity of the coast. 20 Moreover, Article 1(2) of the Continental Shelf Convention provided in addition that every island may have its own submarine areas. For instance, in the Anglo-French Continental Shelf Arbitration the United King­ dom put its case regarding the Channel Islands region on the basis that these islands had their own continental shelf which, in fact, joined with that of the UK main­ land. 21 If an island arises of new within the territorial maritime belt, it accures to the land of the littoral state, and the extent of the maritime belt is to be measured from the shore of the new-born island. If islands arise on the high seas outside the terri­. - 56­.

(7) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. torial maritime belt; they belong to no state and they may be clajmed by any state, which in that way acquires the island's territorial waters a.nd its continental shelf. It can be concluded from the' above Articles in the Territorial Sea Convention that, for the purposes of marine boundary determination, islands will or may af­ fect: 22 (a) the seaward limit of a nation or territory; (b) territprial sea boundaries between adjacent or opposite states; and (c) the limit of jurisdiction on the seabed beyond.. 4. The United Nations Sea-Bed Committee 1968-73 The ,problem of the existence of islands assumes particular imp.ortance in rela­ tion to the delimitation of the submarine boundaries between coastal states. This was the reason why Greece and Turkey, bordering the Aegean Sea, presented various proposals to the United Nations Sea-Bed Committee~23 In a working paper, the PRC suggested that 'the breadth and limits of the ter­ ritorial sea as defined by a coastal state are, in principle, applicable to the islands belonging to that state'.24 Draft articles on exclusive economic zones submitted by 14 African states 25 were intended to include one article entitled 'Regime of Islands', by which the sea areas of islands should be determined according to all relevant factors including, inter alia: (a) the size of islands; (b) population; (c) their contiguity tothe principal territory; '(d) whether or not they are situated on the cohtinental shelf of another territory; (e) their geological and geomorphological structure and configuratiort 26 In a working paper on certain specific aspects of the Regime of Islands in the context of the delimitation of the marine spaces between neighbouring states, Ro­ mania suggested that uninhabited islets and small islands without economic .life, which are situated on the continental shelf of the coast, do not possess any apsects of the 'continental shelf or other marine space of the same nature; that such islands may have waters, the extent of which should be determined by agreement, and that the waters thus determined should not affect marine spaces which belong to the state or to neighbouring states. 27. 5. The Draft Convention on the Law of the Se.a.. 1981 28 The Third United Nations Conference on the Law of the Sea, at its 55th plen­ ary meeting on 18 April 1975, decided that the Chairmen of the three main com­ mittees shoulcl each prepare a single negotiating text covering the subjects entrusted - 57­.

(8) The Journal of National Chengchi University Vol. 48, 1983. to his committee. The President of the Conference stated that the single negotiating text would be informal in character, and would not prejudice the position of any delegation, nor would it represent any negotiated text or accepted compromise. 29 This and subsequent negotiating texts do not bind states in any way or affect exist­ ing proposals or preclude new ones. Yet, they represent to, a certain extent, the compromises which have received a consensus and could therefore comprise a new custom of international law. In its present form, much of the text of the Draft Convention represents an internationally agreed set of principles. Indeed, in many instances, the international community· has given the agreed terms of the Draft Convention the status of law, by conducting themselves in a manner which clearly denotes an acceptance on their part of some of its provisions as customary law, with an expectation of reciprocity. In the latest session of the UNCLOS III, which ended in New York on 30 April 1982, 130 countries adopted that the text be opened for signature later this year. 30 Article 121 of the Draft Convention on the Law of the Sea presents some im­ portant definitions and criteria concerning the regime of islands, namely that: 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 J, the territorial sea, the contiguou.s zone, the exclusive economic zone and the continental shelf of an isiantl are determined ih 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 will have no exclusive economic zone or continental shelf [although they can have a ter­ ritorial seal. 31. International practice ·is unambiguous in putting islands and the mainland on the same footing for purposes of attributing state sovereignty over each single island, . together with its surrounding territorial waters and relative continental shelf. This appears to mean that the distinction in the text between islands and semi-submerged rocks is only relevant beyond the limits of the territorial sea.32 In practice, a coastal state is fully at liberty to utilise such rocks in drawing its baseline, thus likening them to islands. Since the 'rocks' envisaged by the Article 121 (3) cannot be treated as semi-submerged rocks insofar as they are commonly qualified as islands, the view that such 'rocks' may be used to draw the baseline of the territorial sea ·from which the continental shelf and economic zone are also to be measured should be main­ tained. Otherwise while still enjoying formally the status of islands they would have a legal status inferior even to that of semi-submerged rocks. One may ask: what distinguishes a rock from a island? and what is meant by - 58­.

(9) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. 'cannot sustain human habitation or economic life of their own'? From the Travaux preparatories of the UNCLOS III it seems that a rock is intended to refer to a smal­ ler-sized island. 33 In that case, what does 'a smaller-sized island' mean? The International Hydro­ graphic Bureau (IHB) formulated mathematical definitions for small islets (1 to 10 square kilometres), isles (l0 to 100 square kilometres) and islands (100 to 5 x 10 6 square kilometres).34 If a 'rock' in this hierarchy were to be smaller than a 'small islet', then the area of a rock would be less than 1 square kilometre (0.'3906 sq. ml. or 1 milliop sq .m.). 3S Since Hodgson categorized a rock as an area less than 0.001 square miles in area (27,878 sq. ft. or 2,590 sq. m.), and an island as an area larger than 1,000 sq. miles. 36 Compared to these two hierarchies, the International Hydrographic Bureau 'rock' is nearly 400 times larger than the other quantification. If the Hodgson de­ finition is accepted as a reasonable limit, then to what islands would the term apply? If we accept the definition of rock as being the smallest hitherto proposal, a rock must be smaller than 2,590 sq. m. 37 TJIrning to the second question, the definition does not refer to uninhabited rocks but rather to uninhabitable rocks. It is assumed that some uninhabited rocks may have continental shelves because they could sustain human habitation or they could have an economic life of their own. The human habitation/economic life criterion is not new. Resolution 4 of the Imperial Conference, 1923 provides that: The word 'island' covers all portions of territory, permanently above high water in normal circumstances and capable of use or habit1ltion. 38. In an explanatory memorandum, it is stated that': 22. The phrase 'capable of use or habitatiol,l' has been adopted as a compromise. It is intended that the words 'capable of· use' should mean capable, without artificial addition, of being used throughout all seasons for some definite commercial or defence purpose, and that 'capable of habitation' should mean capabie, without artificial ad· dition, of permanent human habitation. 23. It is recognised that these criteria will, in many cases, admit of argument, but nothing more definite could be arrived at in view of the many divergent considerations involved . It is thought that no criterion could be selected that would not be opened to some form of criticism. 39. There is no doubt much truth in the last observation and certainly a reformulation of Article 121 (3) of the Draft Convention on the Law of the Sea to include some such phrase as 'without artificial addition' would greatly improve it. - 59­.

(10) The Journal of National Chengchi University Vol. 48, 1983. Comparable comments may be made about the phrase 'or economic life of their own'. What is 'economic life'? Hodgson and Smith asserted that the original drafters may have had the concept that: 4o (a) a rock could not sustain human life owing to lack of water or (b) a rock does not have an economic value - for instance, hydrocarbons, guano, etc., that would intrinsically lead a state to exploit a resource and hence to people the rock.. Moreover, should it be considered lawful to attribute a zone of exclusive jurisdiction to uninhabited islets without an economic life of their own, in the event of their being surrounded by important mineral fields? An example is Rockall Islet, a tiny uninhabitable rock 180, miles west of Barra, which could take on great economic importance once the huge hydrocarbon fields recently discovered in its adjacent ocean subsoil are exploited. The UK, which annexed the island in 1972,41 officially stated that all companies wishing to undertake works of exploration or exploitation in the area were to apply for the permission of the British Government. After years of dispute both Ireland and Denmark seem currently to have implicitly recognised British sovereignty over the island. This dispute further centres on the question of whether Rockall can, since islands are not defined in the Geneva Conventions to exclude such rocks, be used as a basepoint for the delimitation of the continental shelf boundary. Unlike the UK, Ireland has 'not ratified the Geneva Conventions in the same way as West Germany in the North Sea Continental Shelf Cases. 42 Ireland, thus, is not bound by the Convention's delimitation provisions. Furthermore, these disputants lay claims to the island's continental shelf which they maintain is situated on the 'natural prolongation' of their own shelves. 43 Professor Brown is right to point out that any rock anywhere could arguably be -said to have economic life Of its own if a lighthouse or other aid to navigation were placed upon it.44 Now that technology is capable of providing, human habita­ tion on oil rigs which stand directly on the ocean floor, it is evident tha,t engineering science will be able to construct human habitations on almost any rock. Nor is there, at present, any basis for reading into the provision any qualification as to the duration, extent or character of the human habitation to which it refers. 4s Article 121 of the Draft Convention on the Law of the Sea indicates that is­ lands are entitled to possession of territorial sea, contiguous zone, exclusive econom­ ic zone and continental shelf, but that very small individual islands w,hich cannot sustain human habitation or economic life of their ,own, may be regarded as rocks and therefore will not generate exclusive economic zones or continental shelves, but will still have a territorial sea or-contiguous zone. 1f6. - 60­.

(11) Whose is the Bed of the Sea? The Problem of Continental ShelLDelimitation ,in Relation to Small Islands. B. Low-Tide Elevations The coasts of islands h<;lve baselines, just as does a mainland coast, and generally according to the same rules. As the oply exception of note, low-tide elevations (reefs, shoals, drying rocks) in certain instances require modification in baseline con­ struction. What does 'low-tide elevation' mean and what is the significance of low-tide elevation in the determination of maritime boundaries? A low-tide elevation is a naturally-formed area of land which is surrounded by water and is above water at low~tide but submerged at high tide. 47 This term refers collectively to shoals, reefs and drying rocks - offshore features which are exposed at low-tide but submerged at high tide. 48 Baselines tnay 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. 49 1. The Law Officers' Opinion concerning the Great Barrier Reef The Law Officers of Great Britain, when asked in 1875 to give their opinions concerning the jurisdiction of the Courts of Queensland with particular reference to the territories of the Great Barrier Reef, established,' inter alia, four propositions: [i] Queensland has no legislative authority over the seas beyond the distance of 3 ' marine miles from low-water mark on the mainland and islands respectivel~. [ii] Land not submerged at ordinary high tides, however small in extent, is an island, [iii] Reefs attached to an island and dry at low water are part of the island. [iv] Reefs detached from any island and dry at low water mark only, are not islands. so. The phrase 'reefs attached to an island' is akin to the phrase 'dependent islands and banks' in the North Sea Fisherie~ Convention and clearly limits the use of 'low­ tide elevations' for extending the territorial sea to those which are properly 'adjuncts' or 'appendages' of the dry land. 51 2. Harvard Research on Territorial Sea Under the Harvard Research on Territorial Waters, 'low-tide elevations are entitled to a territorial belt'.sz Article 5 of the draft Convention on Territorial Waters which was drawn up by M. Schucking, Rapporteur of the League of Nations' Committee of Experts, dealt with individual islands as follows:. - 61 ­.

(12) The Journal of National Chengchi University Vol. 48, 1983. If there are natural islands, not continuously submerged, situated off a coast, the inner zone of the sea shall be measured from these islands, except in the event of their being so far distant from the mainland that they would not corne within the zone of the territorial seaI if such zone were measured from the mainland. In such a case, the . island shall have.a special territorial sea for itself. 53. The effect of this article would be to allow the island (including an elevation of the sea bed covered at high tide only) to be taken into account in drawing the baseline of the mainland, provided that the island lies within the territorial belt measured from the mainland coast. On the other hand, if it lies altogether outside the primary territorial belt of the mainland, the article would only allow it to have its own territorial waters. It is noteworthy that under this draft the foregoing rules would apply equally if the elevation of the seabed only emerged at low tide. 54 3. The Hague Codification Conference 1930. The 1930 Hague Codification Conference's Bases of Discussion manifested the views of stat~s replying by utilising a uniform term, 'island' to denote not only what contemporary international law would consider to be an 'island' but also the differentiated concept of the 'low tide elevation'. As has already been seen, Sub­ Committee No. II· of the 1930 Conference rendered a more precise and scientific definition of 'island' in contrast to 'elevations of the seabed situated within, the territorial sea, though only above water at low tide. which were taken into consider­ ation for the determination of the baseline of the territorial sea. 55 This certainly is confirmed by the views of the British Legal Officers. The observations of the sub­ committee reporting to The Hague Conference further reveal the long-standing acceptance of this concept: If an elevation of the seabed which is only uncovered at low tide is situatec;l within the territorial sea off the mainland, or off an island, it is to be taken into c~msideration on the analogy of the North Sea Fisheries Convention on 1882 in determining the baseline of the territorial sea.S6. 4. The Anglo-Norwegian Fisheries Case 57. The presence of islands, rocks and banks off a mainland coast raises certain questions of customary law concerning the delimitation of the maritime. zone. First, how fare may low-tide elevations be taken into account as base points for the pur­ pose of delimitation of the territorial sea? Secondly, how far, if at all, maya fringe of offshore islets and elevations affect the baselines and thus the delimitation of. - 62­.

(13) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. inland waters? The answer is that a low-ti.de elevation may be taken into account it if lies within the maritime belt of permanently dry territory measured from the low-water mark. If such an elevation lies outside the maritim,e belt of any per­ manently dry land and is submerged at high tide, then it is neither deemed to be an -island with its own territorial waters nor does it have any effect on the delimita­ tion of the maritime belt of any permanently dry land. This rule was asserted by the United Kingdom in the Anglo-Norwegian Fisheries Case;S8 Norway, however; contended that the use of low-tide elevations is admissible regardless of whether they lie within the maritime belt of any permanently dry land. In support of this contention Norway had cited a number of Scandinavian regulations, certain decrees of Latvia and Estonia, and decrees of Egypt and Saudi Arabi~, as examples of low­ tide elevations being employed in the delimitation of the states' m~t:itime territo.ry without any express restriction as to the distance from the shore. S9 Norway also cited the text in the Harvard Research Draft as supporting the treatment of low-tide elevations as islands. 6o . The United Kingdom argued that many governments have already protested against the Saudi-Arabian and Egyptian decrees; some govern­ ments, such as the French Government, did not feei obliged to put in protests: the enactment of a decree by another foreign government did not officially bring it to their attention. As to the precedents, the United kingdom stated: ~. .. It may be doubted whether all the states concerned intended the rather general words of their decrees to include distant elevations of the sea bed submerging at high tide. Finland and Estonia ... in their replies to the Preparatory Committee of the 1930 Conference, supported the rule for which we content. . Denmark in he{ reply would not allow even permanently dry islands to count unless situated within twice the width of the maritime belt from the mainland shore. 61. The United Kingdom argued. that the Harvard Research Draft did not seem to have kept in mind the question of the .distance of submerging rocks and reefs from the mainland in any case; the UK refused to contemplate that the waters· between per­ manently dry islands and the mainland should be treated as inland waters. If further pointed out that the Institute of International Law showed, in 1984, great reserve concerning the extension of territorial waters by means of rocks and banks off the coast.62 When the question of codification arose, the Preparatory Committee and Sub-Committee No. II decided to limit the use of submerging rocks and banks to those within the maritime belt of permanently dry islands. 63 The low-water mark rule was formulated to define the seaward limit of per­ manently dry terra firma for the purpose of measuring its maritime belt. It is one. - 63­.

(14) The Journal of National Chengchi University Vol. 48, 1983. thing to take into account low-tide rocks as adjuncts of the low-water mark coast line of permanently dry territory ; it is quite a different matter, when they lie isolat­ ed in the open sea, to treat them as islands possessing their own territorial waters. 64 This rule, the United Kingdom maintained, represents the maximum of legal obliga­ tion which can be regarded as accepted by the international community with regard to the claims of states based on low-tide elevations. 65 Consequently, the ICJ decid­ ed that it was permissible to use low-tide elevations in delimiting the baseline in this particular case.. 5. Article 11 of the Convention on the Territorial Sea and the Contiguous Zone When this article was first proposed to the ILC in 1952, it read as follows: Elevations of the seabed situated within the territorial sea, though only above water at low tide , are taken into consideration for the determination of the base line of the territorial sea.66. The meaning of the initial 1952 proposal of the Commission was that, even if an elevation of the sea-bed was only uncovered at low tide, provided it was situated within the territorial sea, the limits of the territorial sea would thereby be extended further out into the high seas. That point of view corresponded with the ovservation by the Preparatory Committee of the 1930 Hague Codification Conference. 67 In Argicle 5 on baselines, in the Second Re.port of the ILC in 1953, J.P.A. Francois, the Special Rapporteur, recommended: Elevations of the sea bed which are only above water at low tide and are situated partly or entirely within the territorial sea shall be treated as islands for the purpose of determining the outer limit of the territorial sea. 68. In the commentary attached to the article, it was stated that a drying rock is deemed to be an island in such circumstances. After several amendments, the Commission in 1954 adopted a version with essentially the same meaning: Drying rocks and shoals which are wholly or partly within the ,lerritorial sea may be taken as points of departure for delimiting the territorial sea.69. In its report to the General Assembly the ILC took the view that even if a. lighthouse was built on an elevation which emerged at low tide and the lighthouse was permanently above water level, it would not be considered as an island and would have no territorial sea. 70 -64­.

(15) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. The Commentary to the 1954 ILC draft stated : Drying rocks and shoals situated wholly or partly in the territorial sea are treated in the same way as islands. The limit of the territorial sea will accordingly make allow· ances for the presence of such drying tocks and will jutt out to sea off the coast. Drying rocks and shoals, however, which are situated outside the territorial sea have no territorial sea of their own .71. As the discussion made it clear that the above provision covered all low-tide elevations within the territorial sea, however measured; the ILC thus considered that the draft article expressed the lex lata. Article 11 of the 1958 Geneva Convention on the Territorial Sea and the Con­ tiguous Zone followed very closely the draft Articles of the International Law Com­ mission, which is as follows: 1. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial ~ea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the terri­ torial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island , it has no territorial sea of its own.72. This article is now incorporated into Article 13 of the Draft Convention on the Law of the Sea. 73 It will be recalled t hat the distinction between 'island' and 'low-tide elevation' is indeed crucial because under Article 11 (2) of the Territorial Sea Convention only the former have the independent capacity in law to generate maritime zones. For this reason, it is unfortunate that the various municipal decrees which have purport­ ed to give effect to the 1958 Convention on the Territorial Sea have not been uniform in defining the meaning of 'above water at high tide'.74 From the legal point of view, as pointed out, the one essential distinction be­ tween an island and a low-tide elevation is that an island has its own territorial sea and a low-tide elevation cannot generate this. But, if a low-tide elevation is situated within the maritime territorial belt, in this respect, the low-water line on that eleva­ tion may be used as the baseline for measuring the breadth of the territorial sea. 7S In conclusion, it is a little difficult to ascertain under what criteria a small island should be regarded or disregarded for the purpose of determining a sub­ Il)arine boundary, and what size of island constitutes a rock. If a small island, off the coast, situated outside the territorial sea, in the middle of the ocean, were to - 65 ­.

(16) The Journal of National Chengchi University Vol. 48, 1983. be treated as an 'island' then presumably it should be entitled to .claim a territorial sea as well as a continental shelf. Similarly, if small islands, off the cOflst, situated outside the territorial sea, in the middle of the ocean, were to be treated as drying rocks and shoals, then small islands should not be entitled to claim a continental shelf.. Effect of LOW TIDE ELEVATIONS. Figure 1. This diagram shows the distinction between low-tide elevations which have no effect oli' the breadth of the territorial sea and those which do. Source: Whiteman's Digest of /n.ternationai Law, Vol. 4, p. 304.. C. A Lighthouse Built on an Elevation: 76 The Eddystone Rock Problem The status of the Eddystone Rock in the determination of baselines became a matter of acute ' controversy in the Anglo-French Continental Shelf Arbitration because the UK treated. it as a permissible base-point in respect of the submarine boundary. The Eddystone Rock 77 has a drying height of 19 feet of natural rock under­ neath the old lighthouse. The height of mean high-water spring tides at Plymouth breakwater is 15.7 feet. The 1960 survey did not record the drying height at the highest point of the rocks because that was occupied by the stump of the old light­ house; only the height of a lower rock, on which the present lighthouse stands was observed, and that was recorded as 17 feet. British Admiralty Chart No. i6l3 shows - 66­.

(17) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. a drying height of 5.5 metres for the lower rock, exactly the same height as that of mean high-water spring tides above the lowest astronomical tide. The highest rock appears on the chart under the old lighthouse stump and would otherwise be shown as an islet. 78 During the course of o:-al argumel'l;t , the UK and France were agreed that to the south of Plymouth the boundary should be the equidistant line in the min-channel; however, they were not in agreement as to whether Eddystone. Rock should be used as a base-point for determining its course. Evidently the parties had agreed that points along the baseline from which the breadth of the territorial sea is measured would be used as the basepoints for purposes of determining the equidistant line. Such a practice is not required by international law when reaching a boundary by agreement, but it is convenient. The Court of Arbitration was called upon to decide not the legal question of whether the Eddystone Rock is an island entitled to a territorial sea of its own, but its relevance in the delimitation of the median line in the Channel as between the UK and France. 79 In fact the compromis of 1975 did not invest the Court of Arbitration with competence to resolve differences between the Parties regarding the delimitation of the territorial sea of either of them. In the proceedings, the tribunal was concerned solely with the Eddystone Rock as an ele­ ment in the delimitation of the continental shelf boundary in the English Channel. 80 This obviously required that the baselines be agreed, and in this particular context, the legal status of the Eddystone Rock for the delimitation of the continental shelf by a median line in the Channel, as between the Parties, became relevant. In view of the UK, the Eddystone Rock did constitute an island,81 not because of the lighthouse, but because it was covered entirely by the equinoctial spring tides' only at high-water. 82 This, by definition, meant that it was uncovered at mean high water spring tide, which fulfils the definition of an island in the UK Territorial Waters Order in Council of 1964, and is also in accordance with international prac­ tice. The facts regarding the Eddystone Rock were shown on the British Admiralty Chart of 1964 and on subsequent charts without provoking any objection from the French authorities. 83 It was therefore considered by the British that the Eddystone Rock was an island, having a territorial sea and should be used as a base-point for the delimiting of an equidistant continental shelf boundary. France, however, objected to the use of Eddystone Rock as a base-point for determining its course. It said that the information provided by the UK did not enable it to conclude that Eddystone Rock was an island. In its view, Eddystone . Rock belonged rather to the category of 'low-tide elevations', which were not entitl­ ed to a territorial sea in customary international law. 84 No difference is made in - 67­.

(18) The Journal of National Chengchi Univel sity Vol. 48, 1983. customary international law, it maintained, between types of tide as a criterion for distinguishing between an island and a low-tide elevation. On the contrary, as soon as a reef did not remain uncovered continuously throughout the year, the French government claimed that it had to be ranked as a low-tide elevation not as an is­ land. 85 They firstly invoked an incident in 1903 when the British Foreign Office decided not to question the right of French fishermen to fish within 3 miles of the lightship at Seven Stone Reef,86 which lies between Cornwall and the Scilly Isles and dries out at low tide. The French also invoked an incident in 1905, when two French lob~er boats were arrested for fishing within three miles of Eddystone Rock; after the French had communicated with the British Board of Trade, instructions were sent by the United Kingdom to release the boats.87 The French maintained that the incident showed that the British Board of Trade in 1905 had regarded Eddystone Rock as not having any territorial sea. France alleged that British prac­ tice also had confirmed that Eddystone Rock had not hitherto been treated as an island. According to the French Government, in establishing its straight baselines by an Order in Council of 1964, the UK did not connect Eddystone Rock to the British coast. On these grounds, the French Government declined to accept Ed­ dystone Rock as a base-point for delimiting the median lirre unless the UK was able to adduce formal proof that it is an island rather than a low-tide elevation, for ex­ ample, by producing the plans of the lighthouse of Eddystone Rock. 88 The UK based its arguments on the grounds of both historical practice and factual data regarding the Eddystone Rocks and the four lighthouses which have been built on them. The Eddystone group consists of drying reefs and, the UK claimed, of one natural above-water feature known as I-J'ouse Rock. Early French Charts, Le Neptune Francois (1693), and La Mandie ou Ie Canal entre la France et I 'A ngle terre a ['usage de M. Ie Due de Bow'gogne (1695), show Eddystone as an island. Likewise, Greenville-Collins' Coasting Pilot p·ublished in 1753, states that its north-west part is 'above water (at a high spring tide) by about 6 or 7 feet'. The first three Eddystone lighthouses were all erected on House Rock, the third of these being Smeaton's lighthouse. In 1792 Smeaton published a Narrative of the Building and a Descrip,tion of the Construction of Eddystone Lighthouse, and it appears from certain plates in this book , that, when preparing the foundations, he may have cut off as much as 4.3 feet from the top of House Rock. At the same time, a statement in his Narrative appears to confirm that, before he began the third lighthouse, House Rock was permanently above high water. 89 Surveys carried out by a Mr. Murdoch Mackenzie in the years 1777-1779 recorded that 'the westmost rock is always above water, and at high-water even with springs, may be about 6 - 68 ­.

(19) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. feet above the level of the sea'. The later survey of Captain Williams, R.N., in 1858, the UK recalled, recorded that the height of the natural rock beneath the base of Smeaton's lighthouse was 19 feet above mean low- water spring tides. 9o The UK explained its views regarding 'mean high water spring tides' as the criterion for determining whether a geographical feature has the legal status of an island or low-tide elevation. It further took the position that, whether under cus­ tomary international law or under Article 10 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, the relevant high-water line is the line of mean high-water spring tides, and it affirmed that this was also the practice of many other states. The high-water line shown on all British Admiralty Charts is the line of mean high-water spring tides, and it pointed out that, under Article 3 of the Territorial Sea and Contiguous Zone Convention, it is the line marked on the large­ scale charts officially recognised by the coastal state which, in the case of the low­ water line, determines the location of that line. Although conceding that other interpretations of the expression 'high tides' are possible, it maintained that 'mean high-water spring tides' is the only precise one. At present the height of the natural rock at the base of the stump of the old Smeaton lighthouse is about 2 feet above mean high-water spring tides and 0.2 feet above the highest astronomical tide. In these circumstances, the UK considered that the Eddystone Rocks are not to be ranked as a low-tide elevation. 91 The UK challenged the French contention that the Eddystone Rocks have not always been treated as an island in British practice. The release of the two French crabbers (which were arrested for fishing within 3 miles of Eddystone) in 1905 could not be taken as evidence that the UK did not then, or does not now, regard the Eddystone Rock a') constituting an 'island'; for 'the release could have been motivated by other considerations, such as a desiLe not to provoke a diplomatic incident'. According to the UK, 'there is clear evidence that contempary British practice treats the Eddystone Rocks as an island for all purposes, including the use of the low-water line around this island for the measurement of maritime zones'. 92 It also referred to negotiations between the two countries, which took place in 1964 and 1965, regarding the preservation of traditional French fisheries in the outer six miles of the British 12-mile fishery zone in conformity with the European Fisheries Convention of 1954. It stated that one of the subjects discussed was French tradi­ tional fishing for lobsters, crawfish, scallops and demersal fish off the south coast of England; and that agreement was reached between the two Governments that tpe eastern limit for this French fishing area within the outer 6-mile belt of the UK's fishery zone should be a line drawn due south from Eddystone Rock. 93 It was - 69­.

(20) The Journal of National Chengchi University Vol. 48, 1983. admitted by the French Government that 'the Eddystone Rocks could be used as a base-point for the measurement of British fishery limits. In connexion with this factual evidence, the UK claimed that the French Republic had already acquiesced in the use of the Eddystone Rock as 2i base-point for the measurement of UK ter­ ritorial waters and fishing zone and for delimiting a median line in the Channel. Furthermore, the British Admiralty Chart No. 1613 of 1964 showed a terri­ torial sea surrounding the Eddystone Rocks (as well as 6 and 12-mile fishery belts) which had been circulated to all interested states without evoking any objection from any of them. This evidence, according to the UK, served as clear proof that contemporary British practice did claim the Eddystone Rock as an island before the commencement of the negotiation on, the delimitation of the continental shelf, and that this was accepted by France. 94 It was, therefore, asserted that, !n all the cir­ cumstances, the Eddystone Rocks must be regarded as an island under customary international law and the Territorial Sea and Contiguous Zone Convention, and should be permitted to have a full effect in determining the course of the median line boundary in the English Channel west of the Channel Islands. 9s The French Government replied that, during the negotiations in 1964 and 1965, it had accepted the fishery limit to the south of Edtlystone Rock which had been established by a legislative act, the relevant schedule of which had been agreed between the competent French and British authorities. In accepting that limit, the French authorities approved a text where a clear distinction was made between 'islands', which figured in Schedule 1, and 'demarcation lines, land marks and direc­ tions', which figured in Schedule 2, and where Eddystone appeared under the latter, not amongst the 'islands'. In dealing with this French argument the Court of Arbi­ tration held that: [it] hardly seems pertinent since certain islands are also to be found in Schedule 2; and it does not, in any event, affect the French Government's acknowledgement of its acceptance of Eddystone Rock as a base-point for determining the United King­ dom's fishery limits in the area concerned. 96. The French Government underlined that in agreeing to the fishery arrange­ ments, it was committing itself only in the matter of fisheries; and it stressed that it had never recognised Eddystone Rock as an island possessing its own territorial sea, referring to its diplomatic Note of 18 January 1966 contesting the right of Eddystone Rock to its own territorial sea. As to the United Kingdom's Note of 20 November 1967, replying to the French contention that Eddystone was merely a low-tide elevation, France acknowledged that it has not then pursued the matter ~. -70 ­.

(21) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. further, but maintained that the silence on the point could not be interpreted as signifying that it had abandoned the position which it had previously taken that the Eddystone Rocks were merely a low-tide elevation, and therefore, not entitled to their own territorial sea. 97 In addition, the French Government contended that an island was a natural piece of land that stays permanently above high-water; that the current British cartography did not in any way indicate that any fragment of Eddystone Rock is an island; that the British concept of "h.igh-water" was very questionable, and that a large number of states, including France, took it as meaning the limit of the highest tides; and that the information given by the UK itself in­ dicated that the highest part of the Rocks was only very slightly above the highest full-tides and may sometimes be covered by them. It invoked the fact that the UK had not so far made use of Eddystone Rocks in delimiting its straight baselines. 98 As was confirmed by the Courts own eXPert, the Eddystone Rock had been treated as relevant to the delimitation of the median line in the Channel in 1971. 99 The Court, therefore, accepted the UK's argument that it should treat the Rock as a relevant base-point for delimiting the continental shelf boundary in the Channel without determining t!J.e legal status of the Rock (Le. whether or not it was a true island);- the Court also found that France had previously accepted the Rock as a base-point, with respect to the limits under the 1964 European Fisheries Convention as well as the negotiations in 1971 for a shelf boundary. 100 The Court observed that the 6 and 12 mile fishery zone provided for by Articles 2 and 3 for that Convention are expressly stated to be zones 'measured from the baseline of the territorial sea.' ... it was in the context of a baseline of the territorial sea, as well as in the contt!xt of fisheries, that the French Republic in 1964-65 acknowledged the relevance of the Eddystone Rock as a base-point. 101. The boundary determined by the Court was a median line that took the Eddy­ stone Rock into account. As a result, a point was fixed which was equidistant from, on the UK side, the Eddystone Rock; and on the French side, base-points off the coast of Brittany.102 D. Archipelagoes and Straight Baselines The term 'archipelago' originally referred to a broad sea (e.g. the Aegean Sea) interspersed with many islands. 103 Over the course of time, however, the land grouping itself came within the meaning of the term. Although no precise defini­ tion exists due to the variety of formations inherent in such groups, it will suffice -71 ­.

(22) The Journal of National Chengchi UnIversity Vol. 48, 1983. to characterise 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 his­ torically have been regarded as such. 104. There is a conceptual difference between 'coastal' and 'oceanic' (or 'mid­ ocean' /'outlying') archipelagoes. The developments in state practice have, as will be seen, virtually eliminated the former category of archipelagoes as a special prob­ lem except in one application of the straight baselines system provided for in Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, and in Article 7 of the Draft Convention on the Law of the Sea. 1. Coastal Archipelagoes. Coastal archipelagoes are those. which lie in close proximity to the mainland. In most cases, such groups of islands belong to the state to which they are adjacent. The classic example is that of the fringe of islands off th~ coast of Norway. The islands off Australia, Cuba, Denmark, Egypt, Finland, Iceland, Saudi Arabia, United Kingdom and the U.S.A. are. other examples. In the Anglo-Norwegian Fisheries Case, .os the Court admitted the validity of the method of straight baselines connecting the outermost islets and rocks on the island fringe on Norway's coast as the point of departure for the measurement of the country's territorial sea. The Norwegian claim to be entitled to use a system of straight baselines was put forward on two main grounds: first, that international law did not forbid the practice whenever it appeared to be justified by the exceptionally irregular or island­ fringed character of any coast; secondly, that Norway had· acquired a historicright to employ a straight baseline system. 106 The UK, however, did not oppose Norway's use of straight baselines in all circumstances. It agreed that they were valid for denoting the closing lines of bays and of all fjords and sands to which it was recognized that Norway had a historic title. l07 One of the rules which t'he UK put. forward as forming part of established general international law was that, where there are indent.ations of the coast and where there are islands off the coast, there are rules of international law which per­ mit the baseline of-territorial waters to cease to follow the low~water mark and to enclose certain areas of sea. 108 As to bays, the W<. conceded a ten-mile limit as being the closing line' of bays.109 -72 ­.

(23) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. The contention was that at some points off the Norwegian coast, which could not be regarded as bays, straight baselines were completely inappropriate. 110 The judgment of the Court, however, largely adopted the Norwegian approach. First, the Court held that the Norwegian system of drawing baselines had not violat­ ed internationallaw. 1l1 Secondly, the Court found no foundation for the conten­ tion that straight baselines might only be drawn across bays 112 and must not in any case, with the exception of historic bays, exceed ten miles in length. 113 Thirdly, the Court emphasised that the application of any alleged rule must be tested against geographical realities and local conditionsY4 Fourthly, the Court declared that the Norwegian system, characterised by the use of straight baselines, did not infringe general law;115 it was thus consistently applied by Norwegian authorities, and it has encountered no opposition on the part of other states. 116 It must be stressed that the Court had recognised the right of a state such as Norway, the coast of which was deeply indented, to measure the breadth of its territorial sea from straight baselines drawn from headland to headland or from headland to island under certain conditions. 1l7 In this connection, t~le Court issued guidelines to states with similar geographical coasts. Straight baselines may be used in localities where the coastline is deeply indented, or if there is a 'fringe of islands along the coast in its immediate vicinity', if the following four criteria can be met: (a) close dependence on land domain; (b) straight baselines never departing from the general direction of the coast; (c) area so closely linked to the land domain as to be part of the internal waters 118 and (d) economic dependency on the land domain..1l 9 Although this decision dealt with 'coastal' and not 'oceanic' archipelagoes, it had a significant impact on the claims of archipelagic states (Le. a state constituted wholly by one or more archipelagoes)120 as we shall see later. It is worth noting that this approach was subsequently formulated in general terms iil Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone. The physical and geographical criteria set out by paragraph 1 of the Article reads: 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, the method of straight baselines joining appropriate points may be employed in drawing the baseline ... 121. The term 'fringe' is of interest because it implies, and is intended to imply, that the mere existence of islands off a coast does not sufficie as an argument for using straight baselines. What is required is a continuous 'fflnge', sufficiently solid and close to the mainland to form a unity with it, or an extension of it in the seaward -73 ­.

(24) The Journal of National Chengchi Un iversity Vol. 48, 1983. direction. Correspondingly, the phrase 'in localities where the coastline is deeply indented and cut into' implies that a state would not be justified in making use of straight baselines along the whole of its coast, irrespective of the physical and geo­ graphical conditions, merely because those conditions warranted the use of baselines in one particular locality. 122 Paragraph 2 of the Article, following the principles enunciated by the Court, provides that: The drawing of such baselines must not depart to any appreciable extent from the gen­ eral direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 123. The above paragraph reflects the judgment of the Court in not placing any actual limit (in terms of mileage) on the length of straight baselines. The Court did, nevertheless, state that they must be 'reasonable and moderate'124 and this is also implied by the requirement that the waters they enclose should have the character of genuine internal waters. !his requirement further implied that straight baselines must not be drawn between points so outlying as not truly to form part of the mainland coast or of an immediately proximate island fring~. In view of the fact that there are many states - such as Saudi Arabia, Burma, Canada, the Peoples' Republic of China (PRC),125 Cuba, Egypt, Equador, Faroes, France, Iceland, Malagasy, Mauritania, Mexico , Mozambique, Norway, Sweden, Tanzania, Turkey, the U.K. and Yugoslavia - using straight baselines to encompass offshore islands,126 it is clear that, in general international practice, straight baslines are no longer only applied to coastal archipelagoes. However, both Article 4 of the Territorial Sea Convention and Article 47(3) of the Draft Convention on the Law of the Sea aim to restrict state practice to certain situations as will be seen. It would seem, however, that where an island or group of islands lies offshore, but in such a geographical relationship to the mainland that a single straight baseline system would not be acceptable - since it would depart to an 'appreciable extent from the general configl.lration of the archipelago'127 - - such islands may not consti­ tute 'coastal archipelagoes' . 2. Oceanic (or 'Mod-Ocean ') Archipelagoes. Oceanic archipelagoes are groups of islands which form a geographic entity or unit unrelated to any 'mainland'. Indonesia, 12 8 the Philippines 12 9 and the Solomon Islands 130 are the best examples. The archipelagic states, such as Fiji, Indonesia, Mauritius and the Philippines -74 ­.

(25) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. have stressed the unique geographical conditions of archipelago countries, claiming that such states have the right 'to regard the waters between and around their islands as one single unit'.131 Representatives of such states in the Seabed Committee have emphasised inter alia, that the question of archipelagoes was never fully discussed at the First and Second United Nations Conferences on the Law of the Sea. They claim that the principles enunciated by the Court in the Anglo-Norwegian Fisheries Case 132 and reflected in Article 4 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, can and should be extended to 'oceanic' archipelagoes . 133 They therefore advocate that their archipelagoes' baselines should be drawn round the outer extremity at low-water mark of all those islands in a group between which an intrinsic relationship can reasonably be deemed to exist, and that the limits of the territorial sea should be drawn outward of those base lines. 134 This would en­ close a vast sea area within their internal watersY 5 The archipelagic claims are supported by those making them by historical, economic, geographical and strategic considerations. Archipelagic states stress the need to protect the unity of a nation composed exclusively of many islands. More specifically, the ease of access to land from the sea creates for archipelagic states special problems of security and surveillance which would be greatly increased by the existence of areas of open sea within the archipelago. As to geographic and economic realities, the archipelagic states involve certain factors which w'ere pro­ mu1aged by the ICJ in the Anglo-Norwegian Fisheries Case. 136 Archipelagoes should thus be defined with reference to the close geographical and economic relationship between the land and the sea areas concerned; a special regime for archipelagic . waters should be devised to reconcile the interests of the archipelagic states with those of other users of the sea. It is probable that archipelagic states may be deemed to have sovereignty or sovereign rights over the submarine areas, the maritime areas and the superjacent airspace enclosed by their straight baselines. The interests of archipelagic states are in conflict with those of maritime states which enjoy the traditional freedom of the high seas. Such states have therefore proposed that a limit should be imposed on the length of baselines and on the land­ water ratio, so as to avoid widely scattered groups of islands claiming vast expanses of the ocean. A review of the history and problems of archipelagic claims indicates that a more flexible doctrine is required, as the inevitable concession of special rights to archipelagic states, is not to prejudice the legitimate interests of other users of the sea. 13 7 The acceptance of the claims of archipelagic states has become much easier. -75 ­.

(26) The Journal of National Chengchi University Vol. 48, 1983. since the introduction of the concept of 200 mile Exclusive Economic Zones in the UNCLOS text as virtually all archipelagic areas would be encompassed by this zone. Such claims have now been included in the Convention on the Law of the Sea with certain limitations. The concept applies only to island states, and it is subject to precise geographic limitations, such as a requirement for a pre-established ratio be­ tween land and water, the fixing of a maximum extent of 100 to 125 nautical miles for the straight baselines to be drawn, and that the drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipel­ ago.138. III. The Conventional Delimitation of Seabed Boundaries A. International Aspects. A significant statement was made by the ICJ in the Anglo-Norwegian Fisheries Case in the following words: The delimitation of sea afeas has a/ways an international aspect. It·cannot be depen­ dent merely upon the will of the coast state as expressed in its municipal law. Al­ though it is true that the act of delimitation is necessarily a unilateral act, because only the coastal state is competent to undertake it, the validity of the delimitation with regard to other states depends upon international law. 139. In this passage, which related to delimitation of the sea, not the seabed, in the con­ text of this case, the Court did not say that the validity of a delimitation by a coastal state vis-a-vis another state depends on the will of that other state. What it said was that the validity of the delimitation with regard to other states depends upon inter­ national law. In this connection, the PCIJ in the Tunis-Morocco Nationality Decrees Case 140 stated that 'whether a certain matter is or is .noi within the domestic jurisdic­ tion of a staie is an essentially relative question: it depends upon the development of international relations'. Whether or not a matter is solely within the reserved domain may be estimated with accuracy be deciding whether 'international' is ap­ plicable to the case. Relying on these above cases, it may therefore be contended that the problem of delimitation of the continental shelf boundary between adjacent or opposite states is also not a matter which is solely within the domestic jurisdiction and has an international aspect.. -76 ­.

(27) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. B. The Line of Equidistance The principle of equidistance 141 has been- adopted ,in Article 1 of the 1954 Agreement between the United Kingdom and Portugal relating to the Nyassaland­ Mozambique Frontier for delimiting those patts of the frontier affected by the presence of Lake Nyasa. By paragraph 2 of this article, it is expressly provided that the UK shall retain sovereignty over the islands of Chisamulo and Likoma, whioh lie on the Mozambique side of the line of equidistance, together with the exercise of all rights flowing from such sovereignty, including full, unrestricted and uncondi­ tional rights of access. 142 Article 6 of the 1958 Geneva Continental Shelf Convention however deals with a different boundary problem, i.e. where when the same continental shelf is shared between opposite and adjacent states. The general principle laid down in this article is that such boundaries shall be determined by agreement between the states con­ cerned but in default of such agreement, arid unless another boundary line is justifi­ ed by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each state is measured. Islands add a considerable complication as has already been indicated, both because in conformity with Article 1(b) of the convention an island may generate its own continental shelf and also because in consequence they may affect the base­ line from which the territorial sea is measured. The difficulty and doubt surrounding the issue is _shown by the fact that in narrow seas the following questions can be raised: 143 (a) If state A possesses a small island three-quarters of the way across the sea towards state B, does state A get seven-eighths of the shelf between itself and B? 144 (b) If state B possesses other small islands close to state A, does the shelf boundary zig-zag accordingly. 145 (c) If state A possesses a small island in the middle of a shallow sea, all parts of which are incontestably part of the continental shelf with B, should ~mch a small island be allowed to divert a boundary and thus give extensive areas of shelf to A? The role to be assigned to islands in determining the equidistant boundary line raises complex difficulties. The status in customary international law of the equi­ distant method of delimitation has itself been questioned in the North Sea Con­ tinental Shelf Cases: though Denmark and the Netherlands contended that 'equi­ distant' was the essential element in a rule of law, namely, that in the absence of agreement by the parties to employ another method orto proceed to a delimitation - 77 -:­.

(28) The Journal of National Chengchi University Vol. 48, 1983. on an ad hoc basis, all continental shelf boundar­ ies must be drawn by means of an equidistance line, unless, a special circumstance is calling for or warranting a departure from the equidistance method of delimitation. These two states argu­ ed that only the presence of a special feature such as an islet or small protuberance would produce a disproportionately distorting effect on an otherwise acceptable boundary line. 146 In his dissenting opinion, Judge Tanaka observed that: it is argued on behalf of the two Kingdoms. [of Denmark and the Netherlands] that the. application of this [special circumstance]. clause should be limited to such cases as the. existence of insignificant islands, promontor·. ies etc., which should be ignored in drawing the equidistance line. This seems well-found­ ed. 147. MEDIAN-LINE CONSTRUCTION. Figure 2. The formula for construc­ ti~g a median line boundary. enables the waters between two. states to be divided equitably.. Offshore islands complicate. but do not prevent the prin­. ciple of equidistance from be­. ing applicable. Source. Whiteman's Digest of In­ ternational Law Vol. 4, pp. 332.. Until 1969 many thought that the 'equidis­ tance - special circumstances rule' reflected and crystallized the relevant rule of customary inter­ national law. However, in the North Sea Con­ tinental Shelf Cases, the Court held that the equidistance rule of Article 6 of the Continental Shelf Convention was neither a rule of custom­ ary international law nor had it become so since 1958 in a manner so as to be op­ posable to a non-party to the Convention. The Court pronounced that delimitation is to be effected by agreement in accordance with equitable principles, and taking account of all the relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a na­ tural prolongation of its territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other. 148. In his dissenting opinion, Judge Morelli, considered however, that the equidist­ ance method of delimitation had acquired the status of a rule of general internation­ al law, but he thought that there was another rule, that where, as in the present -78 ­.

(29) Whose is the Bed of the Sea? The Problem of Continental Shelf Delimitation in Relation to Small Islands. cases, there was a particularly serious discrepancy between the results of the equi­ distance method and absolutely equitable apportionment, the states concerned were obliged to negotiate an agreement to revise the existing legal situation (Le. equi­ distance) or, in the absence of agreement, simply to take the matter to arbitration. 149 From state practice following the North Sea boundary treaties, it appears that there has been a clear tendency to rely for guidance on the principle of equidist­ ance. ISO It appears in nearly all cases to have been the starting point for negotia­ tions, but it can be seen in some cases to have undergone adjustments in the course of the bargaining process. The North Sea Continental Shelf Cases had concerned delimitation between adjacent states, one of which had not ratified the 1958 Continental Shelf Conven­ tion. The Anglo-French Continental Shelf Arbitration however, was the first in which both disputants were parties. to the Convention. The Court adopted a half­ effect solution, as an equitable variant of the equidistance principle, where continen­ tal shelf delimitation was complicated by the presence of offshore islands. lSI This was evidenced by the Court's selection of two particular pairs of base-points for the calculation of the equidistance lines determining the half-effect boundary, rather than all the potentially relevant points on the respective coastilines. C. Special Circumstances It is necessary to emphasise that there is a great difference between the case of the state that considers itself to be an exception, and that of a state that puts itself forward as constituting an exceptional case. 152 A review of the travaux pre­ para to ires of Article 6 of the Continental Shelf Convention indicates that the,Parties to the Geneva Convention intended the equidistance rule to be regarded as the general or residual rule and that the onus of proof of special circumstances lies upon those pleading them. The principles and rules of special circumstances are illustrated by observations of the following cases. In the Diversion of Water from the Mense Case, Judge Hud­ son, concurring in the judgment, observed that an international judicial.or arbitral tribunal cannot disregard 'special circumstances' which may call for the considera­ tion of 'equitable principles': 153 (a) if it is asked to enforce the obligation to make reparation which any breach of an international engagement normally involves; (b) if it is asked to decree a kind of specific performance of a reciprocal obligation which the demandant itself is not performing; or (c) if it has before it a request for a declaratory judgment and the circumstances are such that the declaration request­ -79 ­.




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