Islands

Haritini Dipla
Content type:
Encyclopedia Entries
Article last updated: June
2008

Product: Max Planck

Encyclopedia of Public
International Law [MPEPIL]

Subject(s):
Islands and artificial islands Jurisdiction of states, territoriality principle Territory, acquisition and
transfer
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law
under the direction of Rdiger Wolfrum.

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A. Introductory Remarks
1 Geographically, islands are areas of land surrounded by water. As with any other land
territories, principles and rules on acquisition of territory also apply to islands (Territory,
Acquisition; see para. 32 below). They are also entitled to maritime zones, such entitlement being
conditional upon the legal definition of the term island . International regulations in this regard
have developed gradually, first through State practice, then through negotiations during
successive codification conferences. Some elements of the current definition and regime of
islands may be found in the work of the 1930 Hague Codification Conference. These elements
were eventually elaborated by the United Nations (UN) International Law Commission (ILC), then
discussed and negotiated during the work of the First United Nations Conference on the Law of the
Sea and enshrined in the Convention on the Territorial Sea and the Contiguous Zone (done 29 April
1958, entered into force on 10 September 1964, 516 UNTS 205) as well as the Convention on the
Continental Shelf (done 29 April 1958, entered into force 10 June 1964, 499 UNTS 311; see also
Conferences on the Law of the Sea). They are now to be found in the United Nations Convention on
the Law of the Sea (1982) (UN Convention on the Law of the Sea; see also Law of the Sea).

B. Definition and Maritime Zones of Islands

1. Islands
2 In order to qualify as an island under international law, an insular feature must be the result of
nature and must remain above the surface of water. This requirement is reflected in Art. 121 (1) UN
Convention on the Law of the Seawhich is identical to Art. 10 Convention on the Territorial Sea
and the Contiguous Zoneaccording to which an island is a naturally formed area of land,
surrounded by water, and which is above water at high tide. The rule was agreed upon in 1958,
following negotiations and rather inconsistent previous State practice, but since then its customary
nature has not been disputed.
3 The expression naturally formed area of land needs some clarification. Land normally means
an elevation of the sea bed created through natural phenomena and consisting of soil or other
types of earth material (sand, mud, gravel deposits, limestone mixed with coral debris, etc) but not
ice.
4 The natural character refers to its creation through natural means, thereby excluding artificial
islands and installations (Artificial Islands , Installations, and Structures). It is suggested that
man-made structures, such as those that help to keep an island above sea level when it is
gradually sinking due to erosion or disappearing due to tidal phenomena caused by climatic
changes, should not be excluded from this definition. In the case of Maritime Delimitation and
Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Case between Qatar and
Bahrain), the parties positions diverged about the qualification of Qitat Jaradah, a tiny cay
projecting from the sea at high tide, as an island . Qitat Jaradah had been created through alluvial
accretion, and some man-made structures to build up the land had been placed on it. The
International Court of Justice (ICJ) ruled that Qitat Jaradah did indeed qualify as an island (Case
between Qatar and Bahrain para. 195).
5 Article 121 UN Convention on the Law of the Sea also does not precisely define the meaning of
the phrase above water at high tide. In their domestic legislation, States adopt different tidal data,
such as the highest astronomical tideequinoctial tidethe mean high-water spring tide or the
mean high tide. During the negotiations that led to the Convention on the Territorial Sea and the
Contiguous Zone, express reference to the necessity for an island to remain permanently above
water at high tide was abandoned, but legal theory has rightly pointed out that, in the interests of
navigation, only those elevations that are always visible by seamenthat is above the sea at the

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highest tideshould be included under the legal definition of islands .

6 The legal consequence of the above definition is that, as a rule, islands are assimilated to
other land territory and are therefore entitled to all maritime zones. Article 121 (2) UN Convention
on the Law of the Sea reads:
Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf of an island are determined in
accordance with the provisions of this convention applicable to other land territory.
7 This rule reflects customary international law (see the judgments of the ICJ in Case between
Qatar and Bahrain para. 185; Maritime Delimitation between Nicaragua and Honduras in the
Caribbean Sea Case [Nicaragua v Honduras] [Case between Nicaragua and Honduras] at para.
113).

2. Rocks
8 As a result of the definition in Art. 121 (2), tiny rocky islands lying in the middle of the oceans
could generate maritime zones extending up to 200 nautical miles (nm), thus causing a reduction
in the size of the areas subject to the regime of the high seas, as well as the Area. In order to
avoid vast maritime areas attached to minor insular formations coming under national jurisdiction,
the governments negotiating the UN Convention on the Law of the Sea introduced an exception to
the above rule. According to Art. 121 (3) UN Convention on the Law of the Sea, rocks which
cannot sustain human habitation or economic life of their own have no exclusive economic zone
(EEZ) or continental shelf. Both criteria, ie the ability of rocks to sustain human habitation or
economic life of their own, may give rise to difficulties, as subsequent economic changes and
technological developments may change the capacity of rocks to host a human population or
produce economic activity. It is evident that the above description fails to provide a clear answer to
the question of what exactly a rock is and how it can be distinguished from an island . Rocks are
nevertheless insular features that remain permanently above the sea and a contrario they are
entitled to a territorial sea and a contiguous zone, and theoretically even to internal waters.
9 The entitlement of rocks to maritime zones has given rise to protests and disputes. Claims by the
United Kingdom (UK) to a fishing zone and a continental shelf around Rockall caused protests by
Denmark, Iceland, and Ireland. The claims were withdrawn in 1997, upon the accession of the UK to
the UN Convention on the Law of the Sea. The dispute pending before the ICJ in the Case
concerning Maritime Delimitation in the Black Sea (Romania v Ukraine), in which the legal status
of Snake/Serpent Island is at stake, witnesses the difficulties caused by the lack of precision in
the definition of a rock. Ukraine claims that this insular formation of 20.5 hectares, located in the
north-west part of the Black Sea, is an island under Art. 121 UN Convention on the Law of the
Sea, and it can thus generate an EEZ and a continental shelf and therefore influence the maritime
delimitation. Romania argues to the contrary, claiming that Serpent Island is a rock under Art. 121
(3) UN Convention on the Law of the Sea and, as such, is not entitled to such zones and should be
ignored for delimitation purposes. There are also disputes in other regions, such as the one
between Korea and Japan regarding Dokdo/Takeshima Islands in the East Sea/Sea of Japan.

3. Low-Tide Elevations
10 For the purpose of determining the entitlement of insular features to maritime zones, legal
regulations distinguish between islands and low-tide elevations. This distinction is based on the
idea that when insular formations do not always remain above high water and are not permanently
visible, they are not islands in the legal sense and therefore cannot generate maritime zones of
their own. Moreover, it is questionable whether they are subject to the rules on acquisition of
territory under customary international law (see para. 34 below).

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11 Relevant rules are to be found in Art. 13 (1) UN Convention on the Law of the Sea, which is
identical to Art. 11 Convention on the Territorial Sea and the Contiguous Zone, and according to
which low-tide elevations are naturally formed areas of land surrounded by and above water at low
tide but submerged at high tide. According to Art. 13 (1) UN Convention on the Law of the Sea, lowtide elevations that are situated outside the territorial sea of a land territory or an island do not
generate any maritime zones of their own. And this is the case even if the State to which they
belong builds artificial installations or lighthouses on them, enabling them to emerge at high tide
(Lighthouses and Lightships).
12 Only when such elevations lie close to another territory can they favourably influence the limit
of the territorial sea of such territory. When situated wholly or partly within the territorial sea of
another land or an island , they may be used, only once, as the baseline for measuring the
territorial sea of such territories (Art. 13 (1), 2nd sentence UN Convention on the Law of the Sea).
13 Low-tide elevations may not be taken as appropriate points for the drawing of straight baselines
where the system of such baselines is used. The only exception is when lighthouses or similar
installations that remain permanently above sea-level have been built on them, or in instances
where the drawing of such baselines has received general international recognition, and then such
elevations may indeed be used as relevant base points (Art. 7 (4) UN Convention on the Law of the
Sea).

4. Reefs
14 In tropical seas with shallow waters, atolls and other insular features lie on fringing reefs. Atolls
are insular formations consisting of small limestone islands , emerging at high tide, which crown a
circular or oval coral reef enclosing a lagoon. Fringing reefs are platforms of coral rock extending
at some distance from the shore of a continent or an island . Depending on the case, the reef may
be totally submerged or submerged only at high tide but emerging at low tide, and its outer edge
may extend from the islands to a distance that often exceeds the breadth of the territorial sea.
Under the 1958 regime, reefs emerging at low tide were assimilated to low-tide elevations and could
only be used as baseline points if situated within the territorial sea, whereas totally submerged
reefs were to be ignored. During the Third United Nations Conference on the Law of the Sea
(UNCLOS III), proposals to use a more favourable system of baselines were presented by some
insular States in the Caribbean and the Pacific Ocean. Those States argued that islands , reefs,
and lagoons are geologically, geographically, and ecologically interrelated and that, in order to
respond to environmental concerns, States possessing such insular features must have full control
of the waters located between the islands and the edge of the reefs, as well as those of the
lagoon.
15 Article 6 UN Convention on the Law of the Sea reflects those proposals to a large extent, by
providing for a new rule on the baseline for measuring the breadth of the territorial sea of islands
situated on atolls and islands having fringing reefs. Instead of the normal baseline along the lowwater line of the islands , the seaward low-water line of the reef may be used. As a result, the
territorial sea may be measured from those baselines and the waters on the landward side,
between the edge of the reef and the islands including the lagoon, will be subject to the regime of
internal waters.

5. Archipelagos
16 Originally, the law of the sea did not recognize archipelagos as a separate legal category for
the purpose of providing a special regime for the waters located in between islands . More
recently, in response to the claims of some insular States, it was decided during UNCLOS III to
introduce some new provisions concerning mid-ocean archipelagos. But the final compromise has
resulted in limiting the new regime only to archipelagic States, that is States composed wholly by

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one or more archipelagos and other islands (see Art. 46 (a) UN Convention on the Law of the
Sea).
17 The term archipelago is defined under Art. 46 (b) UN Convention on the Law of the Sea 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 historically have been regarded as
such. This definition and the regime provided for in Part IV UN Convention on the Law of the Sea
apply therefore only to mid-ocean archipelagos forming a political unity, that is a State, eg Fiji,
Indonesia, the Philippines, or Mauritius. States possessing both continental and insular territory, for
example, Portugal, Ecuador, and Greece, are excluded.
18 Archipelagic States may, under certain conditions, draw archipelagic baselines uniting the
outermost points of the outermost islands of the archipelago and calculate the breadth of their
maritime zones from those lines. The waters enclosed by those lines fall under the regime of
archipelagic waters (see also Sea Lanes).

C. The Role of Islands in the Delimitation of Maritime Zones

Belonging to States with Adjacent or Opposite Coasts
19 The maritime zones of islands as defined above may overlap with those of other islands or
land territory belonging to another State. Isolated islands or groups of islands may be situated
in the proximity of the coast, in areas where competing claims between two or more States exist, or
may even lie on the bad side of a median or equidistant line. In all these cases, delimitation
through agreement or third party settlement becomes necessary.
20 Legal rules on delimitation of maritime boundaries were drafted and then incorporated into the
Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental
Shelf. They provided for agreement between the parties and favoured the application of the
median/equidistant line, except where there were special circumstances requiring another solution.
In 1969, the ICJ pronounced in the North Sea Continental Shelf Cases (Federal Republic of German
v Denmark; Federal Republic of Germany v Netherlands) that, according to customary law,
delimitation of the continental shelf must be effected by agreement based on equitable principles.
Rules on delimitation were renegotiated during UNCLOS III and are currently to be found in Arts 15,
74, and 83 UN Convention on the Law of the Sea. Clearly articulated, the rule in Art. 15 UN
Convention on the Law of the Sea regarding the delimitation of the territorial sea specifically
mentions the equidistance/special circumstances rule, as did Art. 12 Convention on the Territorial
Sea and the Contiguous Zone. In contrast, Arts 74 and 83 UN Convention on the Law of the Sea on
the delimitation of the EEZ and the continental shelf respectively were poorly drafted, merely
providing that delimitation of these zones must be effected by agreement in order to achieve an
equitable result.
21 State practice, as witnessed by bilateral treaties, varies, and does not allow for safe and
general conclusions. In most cases, islands have been given full or partial effect for the drawing
of a median/equidistant or another line, depending on their positionnear the coasts or in the area
of overlapping claimsor their importance, size, population, etc.
22 Due to the lack of precision in the rules on delimitation and the absence of any reference to the
impact of islands on maritime boundaries, States failed to reach agreement in a number of
delimitation disputes in which islands were involved and submitted them to international
adjudication. Faced with different geographical situations in different cases and in order to achieve
an equitable solution, international courts and tribunals have treated islands as special or
pertinent circumstances to be taken into consideration on their merits, location, size, or influence
on the general direction of the coast, etc (Maritime Delimitation Cases before International Courts

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and Tribunals). After examination of this jurisprudence, some general observations can be
presented.
23 In its early case law concerning the delimitation of the continental shelf, the ICJ showed a
tendency to minimize or even ignore the impact on the boundary of minor insular features situated
in the immediate vicinity of coasts (North Sea Continental Shelf Cases para. 57). The Maltese
Island of Filfla was ignored for the purpose of drawing the median line between Libya and Malta in
the Continental Shelf Case (Libyan Arab Jamahiriya/Malta) (at para. 64). This treatment was
sometimes even awarded to more important islands , situated close to the mainland of the State to
which they belong, eg the Tunisian island of Djerba in the Gulf of Gabs was not given any effect
when determining the boundary line of the continental shelf between Tunisia and Libya in the Case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (at para. 79).
24 In later cases, islands situated in the immediate vicinity of the coast were given more weight
by international tribunals. In the EritreaYemen Arbitration), although the Arbitral Tribunal declared
the boundary to be a median line between the mainland coasts of Eritrea and Yemen, it
nevertheless recognized that some islands belonging to coastal insular clusters should be
considered as part of the coast and should be used as controlling base points of the median line
(The Government of the State of Eritrea and the Government of the Republic of Yemen [Second
Stage: Maritime Delimitation] [Award] paras 13235).
25 If located off the coast of the State to which they belong, islands may distort the general
direction of that coast and have an exaggerated impact on the boundary line. Having gradually
realized the importance of geographical realities that must inevitably guide the maritime delimitation
process, international courts and tribunals began to assess this impact and sometimes gave
islands a reduced or half effect. In 1977, the arbitral tribunal deciding on the case between the
UK and France, attributed half effect to the Scilly Isles, situated off the coast of Cornwall, for the
purpose of drawing the equidistance line establishing the boundary of the continental shelf
between the UK and France in the Western Approaches (Continental Shelf Arbitration [France v
United Kingdom]). In the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
the ICJ gave half effect to the important Tunisian Kerkennah Islands , located off the Tunisian
coast, while defining the location of a non-equidistant line establishing the boundary of the
continental shelf between Tunisia and Libya (at paras 12829). Similarly, a Chamber of the ICJ gave
the Canadian Seal Island , located off the coast of Nova Scotia, half effect on the equidistant
segment of the delimitation line of the continental shelf and fishery zone between the United States
of America (US) and Canada in the Case concerning Delimitation of the Maritime Boundary in
the Gulf of Maine Area (Canada/United States of America) (at para. 222). In all the above cases,
the delimitation line was displaced by half in order to take the islands partially into consideration.
Similar treatment was also given to Malta, an insular independent State, which the ICJ recognized as
having only a reduced effect upon the median line between Malta and Libya in Continental Shelf
Case (Libyan Arab Jamahiriya/Malta) (paras 72, 78). This resulted in pushing the median line to the
north, reducing thus the areas of continental shelf attributed to Malta.
26 Sometimes, islands or groups of islands are remote from the coast of the State to which
they belong and lie closer to the coast of another State, in other words they are located on the bad
side of the median/equidistant line or even another line. If they have full entitlement to maritime
zones, the maritime boundary will have to deviate in order to take the islands into consideration.
This is the case with respect to the Channel Islands , located within the Bay of Granville, which
are closer to France than to the UK to which they belong (Channel Islands and Isle of Man). In the
Decision of 30 June 1977 on the Delimitation of the Continental Shelf, the arbitral tribunal ignored
them for the purpose of drawing a median line establishing the boundary of the continental shelf
between the French and the British coasts. It only gave the Channel Islands a maritime zone of
12 miles, thus creating an enclave of British waters within a zone of French continental shelf. This
approach was eventually rejected by other international tribunals. The arbitral tribunal between

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Canada and France refused to follow Canadas proposition to create enclaves around the French
islands of St Pierre and Miquelon when drawing the maritime boundary between Canada and the
islands , which are located in the concavity formed by the mouth of the St Lawrence River at a
distance of 27 miles off the south coast of Newfoundland (St Pierre and Miquelon Arbitration). The
Tribunal considered that such a solution would be inequitable and contrary to the rule according to
which islands are entitled to full maritime zones, and gave them an additional belt of 12 miles in
the western sector (Decision in Case concerning Delimitation of Maritime Areas [St Pierre and
Miquelon] paras 6970). The arbitral tribunal in the EritreaYemen Arbitration rejected the Yemeni
suggestion to establish an enclave of the Eritrean Haycock Islands and South West Rocks,
situated in the immediate vicinity of the Hanish Islands in the Red Sea, which had been attributed
to Yemen during the first phase of the arbitration proceedings. The Tribunal criticized the enclave
solution as being impractical and navigationally hazardous in the context of an international
shipping lane and pronounced in favour of a median line passing between the two groups of
islands belonging to different jurisdictions (at paras 15459). The ICJ did the same in the Case
between Nicaragua and Honduras, when it refused Nicaraguas suggestion to establish an enclave
for the four islands that it had previously attributed to Honduras in a three-mile territorial sea. The
ICJ adopted a lateral boundary line consisting of a bisector line that deviates in order to respect the
entitlement of the islands to a 12-mile territorial sea (at paras 3025).
27 The dispute between Greece and Turkey in the Aegean Sea focuses on the influence on the
delimitation of the continental shelf of the Greek islands that are situated close to the Turkish
coast of Anatolia. Greece claims full maritime zones for these islands and argues that the
boundary of the continental shelf between Greece and Turkey has to pass between them and the
Turkish coasts. Turkey claims sovereign rights over the continental shelf to the west of the Greek
islands and argues for a boundary that follows a median line between the Greek and the Turkish
coaststhus ignoring the islands . Such a solution would mean that the Greek islands would
become an enclave within the Turkish continental shelf. The enclave solution is rejected by
Greece, which brought the case to the ICJ in 1976. The court decided in 1978 that although the
dispute is certainly of a legal nature, it had no jurisdiction to adjudicate it (Aegean Sea Continental
Shelf Case [Greece v Turkey] [1978] ICJ Rep 3).
28 As far as remote isolated islands are concerned, in later cases their entitlement to maritime
zones has been taken into consideration in the delimitation process and reflected in the final
boundary line. In the Maritime Delimitation between Greenland and Jan Mayen Case (Denmark v
Norway), the ICJ recognized the right to maritime zones of Jan Mayen, a small, rocky Norwegian
island with no permanent population, situated between Iceland and Greenland. Jan Mayens
qualification as an island had already been acknowledged by an international conciliation
commission in 1981 (see Conciliation Commission on the Continental Shelf Area between Iceland
and Jan Mayen Report and Recommendations to the Governments of Iceland and Norway), and
therefore it was not questioned before the court. The court further decided that the boundary
between this island and Greenland should follow a median line. In order to determine the location
of the median line, the court took into consideration the disparity between the length of the coasts
between Jan Mayen and Greenland and the necessity for both parties to have access to the fish
stocks in the area. It refused to give full effect to this small island upon the median line, but it
gave it a generous fishery zone and continental shelf (Jan Mayen Case paras 9193; Fishery
Zones and Limits).
29 The impact of the continental shelf of some sub-Antarctic islands eg the Norwegian island
Bouvet; the Australian islands Heard, McDonald, and Macquarie; the French islands Crozet and
Kerguelen; the islands South Georgia and South Sandwich occupied by the UK but disputed by
Argentinaon the delimitation of the continental shelf of the Antarctic is a tricky question related to
the dispute regarding the existence of a continental shelf of the Antarctic continent south of parallel
60 S. This region is governed by the special regime agreed upon by the 1959 Antarctic Treaty
([signed 1 December 1959, entered into force 23 June 1961] 402 UNTS 71) and subsequent

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conventional instruments known as the Antarctic System, that has successfully contributed to
reconciling the territorial claims by some States to the Antarctic continent and the maritime zones
surrounding it, and the objections by others who deny the claims (for further analysis see
Antarctica). These sub-Antarctic islands have an extended continental shelf beyond 200nm, the
projection of which may overlap with the sea bed of the Antarctic continent in the area south of
parallel 60 S.
30 It is of interest that in 2004, Australia, one of the States Parties to the Antarctic System, which
claims sovereignty over a sector of the Antarctic Continent and also on the continental shelf
appurtenant to it, requested the Commission on the limits of the Continental Shelf to abstain from
taking any action with regard to information contained in its submission regarding the continental
shelf appurtenant to Antarctica. This request has been reiterated by other States contesting the
existence of a continental shelf in the Antarctic. On the other hand, it would seem that in its
submission, the Australian government abstained from providing information on the southward
projection of the extended continental shelf of islands situated north of parallel 60 S. In its
recommendations, the commission did not pronounce on those issues.

D. Competing Sovereignty Claims on Islands

31 There have been and still are a number of disputed islands . Some disputes have been
resolved through international adjudication; others are still pending before international tribunals.
32 Principles and criteria on acquisition of territory apply to islands in the same way as they
apply to other land territories. In a number of adjudicated cases, international courts and tribunals
pronounced that their application needs to be adapted in order to take into consideration the
specific characteristics of insular features, eg remoteness and lack of human habitation. In the
case of the Palmas Island Arbitration between the US and the Netherlands, Max Huber examined
the sovereign activitiesState functionson the island , taking into consideration the fact that it
was uninhabited and geographically isolated (at 839). In the dispute between France and Mexico
over Clipperton Island (Clipperton Island Arbitration), the arbitrator weighed the acts of
possession in the light of the nature of the territory, as well as the fact that the island was
uninhabited. This approach has been confirmed by recent decisions, eg in the Sovereignty over
Pulau Ligitan and Pulau Sipadan Case (Indonesia/Malaysia) between Malaysia and Indonesia, where
the ICJ admitted that in the case of small, uninhabited islands with little economic importance,
sovereign State activitieseffectivitswill indeed be scarce (Case concerning Sovereignty over
Pulau Ligitan and Pulau Sipadan [Indonesia/Malaysia] para. 134; see also, in the same direction,
the ICJs recent judgments in the Case between Nicaragua and Honduras paras 17475, and in the
case Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge
[Malaysia/Singapore] paras 6567).
33 The dispute is sometimes about both sovereignty and delimitation issues, eg the dispute over
Leila/Perejil Island between Spain and Morocco and over the Spratly Islands between the
coastal States of the South China Sea. The arbitral tribunal in the EritreaYemen Arbitration was
asked first to rule upon sovereignty and then to proceed to the maritime delimitation aspects of the
case and that was also the method followed in the Case between Qatar and Bahrain as well as in
the Case between Nicaragua and Honduras.
34 In the Case between Qatar and Bahrain, the ICJ was faced with a difficult additional problem:
the attribution of sovereignty to a low-tide elevationFasht-ad-Dibalsituated within the 12-mile
limit of both parties within the zone of overlapping claims between them, and its effect upon the
maritime boundary. The ICJ pronounced that there are no rules indicating that low-tide elevations
are territory in the same sense as islands thus subject to rules and principles on territorial
acquisition. As a result and for delimitation purposes, it decided that the competing rights of the
parties to this low-tide elevation would, by necessity, seem to cancel each other out and thus

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prevent them both from using it as base-point for the drawing of the equidistance line (at paras
2024). Once the maritime boundary was settled, the ICJ attributed this elevation to Qatar, in whose
territorial sea it lies (ibid para. 220). The same approach was followed by the ICJ in the Sovereignty
over Pedra Branca Case in respect of South Ledge, a low-tide elevation situated within the area of
overlapping territorial waters between Malaysia and Singapore. As the ICJ was not mandated to
draw the boundary line between the territorial waters, it simply concluded that sovereignty over
South Ledge belongs to the State in the territorial waters of which it is located (at para. 299).

E. Settlement of Island Disputes

35 As already seen, some disputes are related to territorial claims on islands whereas others
entail both sovereignty and maritime delimitation aspects. For States Parties to the UN Convention
on the Law of the Sea, disputes concerning the interpretation or application of the Convention,
among them delimitation disputes, are subject to the provisions of Part XV UN Convention on the
Law of the Sea on settlement of disputes. As a rule, States Parties to the Convention undertake the
obligation to submit such disputes, after having tried to resolve them by using the means of their
choice, to the compulsory procedures entailing binding decisions provided for in Part XV Sec. 2 UN
Convention on the Law of the Sea. These are the International Tribunal for the Law of the Sea
(ITLOS), the ICJ, and arbitration. However, several exceptions have been introduced with respect to
this obligation.
36 The delimitation of maritime zones having been one of the core issues discussed at UNCLOS III,
governments were divided as to the necessity of including disputes on delimitation of maritime
boundaries in the category of those to be submitted to the compulsory procedures entailing binding
decisions. After long and difficult negotiations a compromise was reached, as reflected in Art. 298
(1) (a) UN Convention on the Law of the Sea, according to which States Parties to the Convention
may exclude from such procedures disputes concerning the interpretation or application of Arts 15,
74, and 83 UN Convention on the Law of the Sea, as well as disputes involving historic bays or
titles. In the case where a Party excludes the aforementioned categories of disputes from the
compulsory procedures entailing binding decisions, it nevertheless undertakes to accept
submission of future disputes, for which no agreement has been reached through direct
negotiations within a reasonable period of time, to a conciliation procedure provided for in Annex V
Sec. 2 UN Convention on the Law of the Sea. This procedure is compulsory, in that the submission
to the conciliation commission is obligatory at the request of any party to the dispute. However,
according to Annex V Art. 7 (2) UN Convention on the Law of the Sea, the report of the conciliation
commission, including its conclusions or recommendations, is not binding upon the parties.
37 Submission of delimitation disputes to the conciliation procedure is further limited by the
following exception: any delimitation dispute that necessarily involves the concurrent consideration
of any unsettled dispute concerning sovereignty or other rights over continental or insular territory,
shall be excluded from such submission (Art. 298 (1) (a) (i) UN Convention on the Law of the Sea).
This limitation had been introduced at an early stage into the negotiating texts of the Conference
with respect to third-party procedures with binding results outside the Convention (regional or
others), as a counterbalance to the exclusion of delimitation disputes from the procedures of the
Convention entailing binding decisions. It aimed at assuaging the fear of some States that a dispute
involving territorial claims on land or islands might be submitted to adjudication under the guise of
a maritime delimitation dispute. As it was finally agreed upon that the alternative to such exclusion
would be compulsory conciliation, the exception of mixed disputes was retained in relation to the
conciliation procedure. It is a tricky question whether the purpose of this clause is automatically to
exclude any mixed dispute from the conciliation procedure or if it aims at limiting the conciliation
commissions scope, and therefore its power, to pronounce only on the part of the boundary upon
which a disputed island would have no impact.
38 At the time of writing, among the 154 States Parties to the UN Convention on the Law of the Sea,
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Universidade de Lisboa, Fac de Direito; date: 07 October 2015

about 20 States, including some involved in mixed island disputes, have submitted declarations
under Art. 298 (1) (a) UN Convention on the Law of the Sea.

F. Assessment
39 International regulations on islands have been elaborated during the Conferences on the Law
of the Sea in the 20th century. The legal definition, together with the rule giving islands full
entitlement to maritime zones, is currently to be found in Art. 121 (1) UN Convention on the Law of
the Sea, and reflects customary international law. Although an exception concerning rocks has
been introduced to serve as a barrier to exaggerated national claims attached to small, isolated,
mid-ocean rocky islands , provisions creating new legal insular categories, such as islands
situated on atolls or having fringing reefs, and archipelagic States have also been adopted,
affording some insular States with special characteristics to expand their maritime zones.
40 When the maritime zones of islands overlap with those of another land or insular territory,
delimitation problems arise. These may be resolved either by agreement or by being submitted to
international adjudication. The absence of clear-cut solutions in the early case law of the
international courts and tribunals with respect to islands is due to an initial confusion concerning
the content of customary rules and principles on delimitation of maritime boundaries, in combination
with the wide variety of geographical situations to which those rules apply. Gradually, international
judges have succeeded in offering more predictable and concrete solutions. As geographical
factors slowly began to predominate in assessing the equitable result of a boundary, islands were
given the weight they deserved depending on their positionclose to or far from the coasttheir
importance and their influence on the general configuration of the coast and the boundary itself.
Overall, international courts and tribunals today appear to be more generous towards islands
than they were in the past.
41 A number of disputes in relation to islands involve both territorial and maritime delimitation
aspects. Up to now, such disputes have been brought before the ICJ and arbitration tribunals. In
accordance with the provisions of the UN Convention on the Law of the Sea, some States Parties
have excluded delimitation disputes from the jurisdiction of the international judicial organs
provided in the Convention for the settlement of disputes, and excluded mixed delimitation issues
from the conciliation procedure. On the other hand, a large number of States have abstained from
doing so, thus proving their confidence in the compulsory procedures entailing binding decisions
offered by the Convention, such as ITLOS, the ICJ, and other tribunals.

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(1981) 20 ILM 797.

Decision in Case concerning Delimitation of Maritime Areas (St Pierre and Miquelon) (Court
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(Malaysia/Singapore) (ICJ, 23 May 2008).
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Universidade de Lisboa, Fac de Direito; date: 07 October 2015