Territory, Islands, UNCLOS, and the South China Sea Arbitration — Comprehensive Study Notes

Overview: Territory, Islands, and International Law

• Session focus: concepts of territory as they relate to islands, how territory is classified in international law, and the consequences for maritime rights.
• Real-world context: several case studies and examples illustrate why states seek to classify features as islands or rocks and how that affects maritime zones.
• Core legal instrument referenced: United Nations Convention on the Law of the Sea (UNCLOS). Referred to as the “constitution of the oceans.”
• Important nuance: not all features generate full maritime zones; classifications have practical and strategic implications for resources and security.

Case Study: Heard Island and McDonald Islands (HIMI) and Nearby Features

• Heard Island and McDonald Islands (HIMI) are a subantarctic island group about $4{,}000\ ext{km}$ southwest of Australia.
• Australian claim: declared Australian territory since 1947; no permanent population.
• Major island ( Heard Island ) size: $370\ \text{km}^2$; McDonald Island is about $1.13\ \text{km}^2$ and ~$44\ \text{km}$ from Heard Island.
• Proximity to other claims: Kagoolan Islands (France) are nearby; France claims the Kagoolan Islands (Kerguelen Islands).
• Why Australia claims these remote islands:
  • Proximity to Australian Antarctic stations and the Australian Antarctic Claim wedge near Heard Island and MacDonald Islands, Mawson, Davis, and Casey.
  • Historical role as a base to enable scientific expeditions to Antarctica; scientists were able to launch expeditions from the base.
  • Ongoing, significant commercial incentives: waters around HIMI are rich in fisheries (e.g., mackerel, icefish) and Patagonian toothfish; extending maritime zones around these islands secures rights to living and non-living resources.
• Cooperative enforcement: Australia and France run patrols around the HIMI and Kerguelen areas to deter illegal fishing and maintain their respective claims.
• Legislative declaration: The Australian government has a statute declaring Heard Island and McDonald Islands as a territory of the Commonwealth by name, with phrasing indicating they comprise all islands and rocks within the designated area.
  • Key phrasing (for reference): "Heard Island and McDonald Islands, being the islands described in the schedule to this act, are declared to be a territory of the Commonwealth by the name of the territory of Heard Island and McDonald Islands."
  • This introduces terminology used in international law discussions (island vs rock, territorial seas, etc.).
• Lead-in to UNCLOS: to understand why certain features are treated as islands or rocks, we turn to UNCLOS regimes of islands and marine zones.

UNCLOS: The Regime of Islands (Art. 121) and General Maritime Zones

• UNCLOS is a multilateral treaty; the United States has not ratified it, but regards many of its provisions as customary international law.
• Article 121 (Art. 121) of UNCLOS defines the regime for islands and how maritime zones are generated:
  • Definition (Art. 121(1)): $\text{An island is a naturally formed area of land surrounded by water, which is above water at high tide.}$
  • General rule (Art. 121(2)): The territorial sea, contiguous zone, exclusive economic zone (EEZ), and continental shelf for an island are determined under the same provisions that apply to other land territory.
  • Exception (Art. 121(3)): Rocks which cannot sustain human habitation or economic life of their own shall have no EEZ or continental shelf.
• General maritime zones generated from land territory (applicable to islands and rocks alike):
  • Territorial Sea: $12\ \mathrm{NM}$ from the baseline, where the state has sovereignty and jurisdiction similar to land.
  • Contiguous Zone: an additional $12\ \mathrm{NM}$ beyond the Territorial Sea, for enforcement of laws related to customs, immigration, fiscal, and sanitary measures; also allows enforcement if a ship breaches territorial sea laws.
  • Exclusive Economic Zone (EEZ): up to $200\ \mathrm{NM}$ from the baseline, where the coastal state has exclusive rights to explore and exploit living and non-living resources of the water column, seabed, and subsoil; includes exclusive rights to fishing, oil/gas, minerals, etc.; also includes the right to construct and authorize artificial islands within the EEZ.
  • Continental Shelf: extends beyond the EEZ in geographical terms; rights here are to the seabed and subsoil (not the water column) and include exclusive drilling rights and the right to construct artificial installations.
• Rocks vs islands (practical implication): rocks can still have a territorial sea and contiguous zone, but do not generate an EEZ or a continental shelf.
• Why states care about this regime: large EEZs and continental shelves yield significant resource rights (living resources like fish, minerals, hydrocarbons, and potential energy generation rights).

Illustrative Examples: Rocks, Islands, and Contested Features

• Rockall (near the UK/Ireland/Denmark/Iceland): a small rock claiming to have a territorial sea and contiguous zone, but not an EEZ or continental shelf because it cannot sustain habitation or economic life of its own; the UK asserted historic rights around Rockall in the context of broader fishing limits, but later clarified that Rockall itself does not generate EEZ rights.
• Okina Torishima (Japan) – coral atoll controversy:
  • Japan claims it as an island capable of generating an EEZ; China, South Korea, and Taiwan dispute this.
  • The atoll shows the policy tension around whether coral reefs that are being modified or reinforced can be treated as islands for EEZ purposes.
  • Visual context: the atoll is hundreds of kilometers from main Japanese territory; coral features are being extended with concrete walls, breakwaters, and even a titanium net to protect structure; an artificial observatory structure is present to monitor the area.
  • Core question: can a feature that is not truly habitable and has limited economic life be treated as an island under Art. 121(1)?
• Howland and Baker Islands (USA): uninhabited, but significant in terms of their contribution to the US EEZ (the US has the world’s largest EEZ by area). They were historically used for guano mining (bird excrement) in the 19th century and later served as an aviation fueling/stopover site; no permanent population today.
  • Approximately 4% of the US total coastline contributes to the EEZ from these features alone, illustrating how small, remote features can have large legal maritime implications.
  • The question arises: are these features rocks or islands? Their status has important implications for their ability to generate EEZs.

The Fiery Cross Reef Case and the South China Sea Arbitration (Philippines v. China, UNCLOS Arbitral Tribunal, 2016)

• Context: Philippines brought a case against China over activities in the South China Sea, including land reclamation and artificial island-building around reefs like Fiery Cross Reef and Mischief Reef.
• Jurisdictional scope: UNCLOS arbitration does not adjudicate sovereignty over land, but it does adjudicate the status of maritime features (island, rock, low-tide elevation), which has downstream effects on maritime zones.
• Key issues addressed by the tribunal:
  • Low Tide Elevations (LTEs): LTEs are typically not capable of being appropriated and do not generate maritime zones.
  • High Tide Features (HTFs): If a feature is above water at high tide, it may generate a territorial sea, possibly an EEZ and continental shelf, depending on whether it is classified as an island or a rock.
  • The tribunal distinguished between high-tide features that can support habitation or economic life of their own and those that cannot. The former may justify broader maritime zones; the latter do not.
  • The tribunal's interpretation of habitation: non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner.
  • The tribunal's interpretation of economic life of its own: the ability to support an independent economic life without reliance on outside resources, not merely extractive activities that provide no local benefit.
  • Practical stance: extended maritime entitlements should primarily support populations; claims based solely on extractive activity or distant resources without a local population are not favored.
• Decision on status and its implications:
  • The tribunal emphasized that the status of a feature is assessed on the basis of its earlier natural condition prior to significant human modification (e.g., land reclamation, construction of airstrips, desalination facilities).
  • In the Spratly context, many high-tide features were heavily modified; the tribunal stressed that the correct basis for classification is the natural state before substantial human alteration.
  • This approach constrained the ability of states to transform a feature’s status via reclamation to convert a rock into an island with EEZ rights retroactively.
• Practical implications for Fiery Cross Reef, Mischief Reef, and other Spratly features:
  • Many features have undergone substantial modifications but, under the tribunal’s approach, their classification should consider their natural state prior to modification.
  • In some cases, features formerly low-tide elevations or small HTFs may retain limited or no maritime zones; others may still generate some zones if their natural state qualifies as an island.
• Broader legal and strategic implications:
  • The South China Sea arbitration provides a framework for how to assess what constitutes an island versus a rock, and how modifications to features affect maritime entitlements.
  • It also highlights the tension between strict legal criteria and evolving geopolitical realities, where states may invest in land reclamation and militarization to expand their zones.

Practical and Theoretical Implications: Habitation, Economic Life, and Reclamation

• Habitation and economic life are not mere technicalities; they determine whether a feature can generate EEZ and continental shelf rights, with major geopolitical and economic consequences.
• The tribunal’s emphasis on habitation suggests that even large features with strategic value may not automatically yield expansive maritime zones if they cannot support a population or independent economic life.
• The concept of an artificial or heavily modified feature challenges traditional interpretations of natural status; the ruling anchors status in pre-modification conditions to prevent rapid conversion of rocks into islands for ocean resource rights.
• Real-world tensions: large features can be claimed for wide EEZs without a population, leading to strategic competition; conversely, truly habitable features might justify large claims if a community can sustain itself there.
• Climate change and extreme weather add further complexity: features that were above water or capable of supporting habitation may become untenable, while others may require artificial life-support systems (desalination, freshwater resources, soil restoration) to sustain habitation or economic life.
• Practical questions raised for policy and law:
  • When does an artificial intervention (e.g., desalination, soil cultivation, or other infrastructure) change a feature’s status, and should that be considered in classification?
  • How should states balance resource claims with environmental stewardship when sea-level rise threatens habitation on the features that currently generate zones?
  • What is the appropriate balance between extending maritime zones for national benefit and preventing excessive claims that undermine freedom of the seas?

Key Concepts and Terminology (Glossary-style Recap)

• Territory vs. territory-based seas
  • Territorial Sea: $12\ \mathrm{NM}$ from the baseline; full sovereignty similar to land.
  • Contiguous Zone: $12\ \mathrm{NM}$ beyond territorial sea; enforcement of customs, immigrations, fiscal laws.
  • EEZ (Exclusive Economic Zone): up to $200\ \mathrm{NM}$; sovereign rights to explore and exploit living/non-living resources of the water column, seabed, and subsoil; exclusive rights to fishing, oil/gas, minerals; right to construct artificial islands.
  • Continental Shelf: rights to seabed and subsoil; may extend beyond the EEZ; does not confer rights to the water column unless within the EEZ.
• Island vs rock (Art. 121):
  • Island: naturally formed area of land surrounded by water, above water at high tide; may generate territorial sea, EEZ, and continental shelf.
  • Rock: cannot sustain human habitation or economic life of its own; generally lacks EEZ and continental shelf rights, but may have a territorial sea and contiguous zone.
• Low Tide Elevation (LTE):
  • A naturally formed area of land which is surrounded by water at low tide but submerged at high tide; LTEs generally do not generate territorial seas.
• High Tide Elevation (HTF) vs LTE: HTFs can generate maritime zones if classified as islands; LTEs typically cannot.
• Habitation (tribunal standard): non-transient presence of persons who reside on the feature in a settled manner.
• Economic Life of its Own: the ability to sustain an independent economic life without significant external input; not merely extractive activities that do not benefit the feature or its population.
• Desalination, artificial soil, and other modifications: examples of human modifications that can alter the physical state of features; classification must rely on the natural condition prior to significant modification (per the South China Sea arbitral ruling).
• South China Sea Arbitration (2016): Philippines v. China, UNCLOS; important for demonstrating how to assess status of features and the downstream effect on maritime zones and sovereignty claims.

Connections to Foundational Principles and Real-World Relevance

• Foundational principle: sovereignty over land extends into maritime zones; how far that sovereignty extends depends on specific classifications of features under UNCLOS.
• Real-world relevance: resource-rich waters in remote areas incentivize state claims; fisheries, hydrocarbons, and minerals drive strategic competition; enforcement cooperation (e.g., Australia-France patrols) is essential for maintaining claimed zones.
• Policy implications: states must weigh legal strategy against environmental, ethical, and geopolitical considerations; the outcome of disputes can shape regional security dynamics, coast guard practices, and treaty interpretations.

Ethical, Philosophical, and Practical Implications

• Ethical questions: is it justifiable to expand economic zones through artificial modifications if the feature cannot sustain a population or provide meaningful economic life of its own?
• Philosophical tension: strict application of textual law versus geopolitical realities and strategic competition in contested regions.
• Practical implications: how to balance freedom of navigation with exclusive rights; how to respond to climate-induced changes that threaten habitation and economic life on remote features.

Takeaways for Exam Preparation

• UNCLOS Article 121 distinguishes between islands and rocks, with important consequences for EEZ and continental shelf rights.
• The difference between a 12 NM territorial sea, a 12 NM contiguous zone, up to 200 NM EEZ, and continental shelf rights up to potentially much further distances is central to maritime jurisdiction.
• LTEs typically do not generate maritime zones; HTFs may, depending on whether they are classified as islands or rocks.
• The South China Sea arbitration provides a framework for evaluating the status of features based on their natural state prior to significant human modification, and it emphasizes habitation and economic life of its own as criteria for generating EEZs.
• Reclamation and large-scale land modifications do not automatically convert a feature into an island with EEZ rights; legal status is anchored to the natural condition of the feature before modification.
• Practical implications of these rules include how states plan resource extraction, how they conduct patrols and enforcement, and how climate change might alter geographic and legal realities over time.

Quick Reference: Numerical and Legal Details

• Territorial Sea: $12\ \mathrm{NM}$
• Contiguous Zone: $12\ \mathrm{NM}$ beyond Territorial Sea
• EEZ: up to $200\ \mathrm{NM}$
• Conti nental Shelf: rights to seabed and subsoil, can extend beyond EEZ depending on geography
• Island definition: above-water at high tide
• Rock definition: cannot sustain habitation or economic life of its own
• LTE (Low Tide Elevation): submerged at high tide, not capable of generating a territorial sea
• High Tide Elevation: capable of supporting zones if classified as an island
• Notable case: South China Sea Arbitration (Philipppines v. China), decision date: $07/12/2016$
• Notable distances and sizes from the HIMI case: Heard Island ~$370\ \text{km}^2$; McDonald Island ~$1.13\ \text{km}^2$; distance between Heard and McDonald ~$44\ \text{km}$; distance to Kerguelen area ~varies on map
• Major economic incentives for claiming distant islands: important fisheries (e.g., Patagonian toothfish, icefish) and mineral/oil resources; extended zones also enable future energy generation rights (solar, wind, wave) within EEZ
• Notable policy note: cooperative patrols between Australia and France around these territories to manage fishing and maintain claims

End of Notes