The land dominates the sea (dominates the land dominates the sea) – QIL QDI

1. Introduction

It is a truth universally acknowledged that a State with a seashore can claim maritime zones. This rationale has been excellently stated by the International Court of Justice ( ICJ ) in its 1969 North Sea Continental ledge judgment, where the Court expressed the principle that ‘ the land dominates the sea ’. [ 1 ] obviously, the bring must have a coast : coastal bring frankincense becomes the start point for any claim to maritime areas ; or, as the ICJ has stated ‘ the attribution of maritime areas to the territory of a State, which, by its nature, is destined to be permanent, is a legal work based entirely on the monomania by the territory concerned of a coastline ’. [ 2 ] The state territory and the nautical zone are therefore in a reciprocal kinship : if there is ( coastal ) land district then there is the good to have maritime zones, and, conversely, there is no good to maritime zones without land district.
While the second base share of this relationship is peaceably accepted, the inaugural part came to be questioned during the Third United Nations Conference on the Law of the Sea. When it became discernible that claims to maritime zones beyond the territorial sea would ultimately be retained, States started realising that land – any estate – was the key to gain access to meaning marine resources, be they pisces stocks or vegetable oil deposits. As a consequence, States began considering their state territory not for what it could provide itself, but for the nautical areas it could generate. Islands, in particular, had the potential to generate maritime zones that would greatly surpass the extension of the kingdom district of the island itself.
Increasing awareness of this fact led some States to question the capacitance of islands to generate nautical zones. finally, States agreed on the borrowing of what is nowadays Article 121 United Nations Convention on the Law of the Sea ( UNCLOS ), [ 3 ] with the claim ‘ regimen of islands ’. This provision foremost confirms that all ( natural ) islands generate nautical zones [ 4 ] and then provides that ‘ rocks which can not sustain human habitation or economic biography of their own shall have no exclusive economic zone or continental ledge ’. [ 5 ] While Article 121 UNCLOS has much been invoked by States, in especial during challenge village proceedings, it was only in 2016 that its content formed the object of an in-depth judicial examination, when the Annex VII Arbitral Tribunal in the South China Sea Arbitration issued its award on the merits of the sheath ( South China Sea Award ). [ 6 ]
The South China Sea Award has already formed the object of a lot scholarly comment. [ 7 ] It is not the aim of this brief article to restate the message of the Award or to analyse in depth its many interesting findings. rather, it merely purports to look into one specific aspect by examining how the relationship between kingdom and sea is handled by the Arbitral Tribunal. To this end, the article will first briefly show the legal and historic context for the Award and will then analyse the Tribunal ’ south findings on how islands do ( not ) generate some nautical areas, with a see towards advancing some conclusions on the affect of the award .

1. The land dominates the sea?

traditionally, the principle according to which ‘ the land dominates the ocean ’ has been considered applicable to islands, a well as to the mainland. [ 8 ] The ICJ and other external tribunals addressing disputes between states have regularly recalled this rationale besides in cases where the nautical zones of islands were at exit. [ 9 ]
Notably, in the Qatar/Bahrain shell, the ICJ expressly stated that ‘ islands, regardless of their size, in this respect enjoy the like condition, and consequently generate the lapp nautical rights, as other land territory ’ and that Article 121 ( 2 ) UNCLOS codifies accustomed international law. [ 10 ] This statement is the more important since, in that particular character, the ICJ was examining, among other issues, the nature of Qit ’ at Jaradah, a bantam feature located in the maritime space between the parties. [ 11 ]
This broad invocation of the principle that ‘ the kingdom dominates the sea ’ besides in the casing of islands ( and, to echo the ICJ, ‘ careless of their size ’ ) calls for two considerations. In the first place, it would suggest a certain relationship between the second base and third paragraph of Article 121 UNCLOS. Since it is a well-established principle that islands do have full moon entitlement to maritime areas, any govern that would suggest that ( at least some ) islands have less or no entitlement should be considered an exception. consequently, first gear, such rule should be construed narrowly, and, second, it should be up to the party that invokes this rule to prove that the conditions on the ground actually mandate its application.
In the second set, a more general consideration relates to the object of the dispute which has formed the footing for the decisions mentioning the principle that ‘ the land dominates the ocean ’. These decisions – from the 1969 North Sea Continental Shelf casing improving to the 2014 Bangladesh/India character – were all adopted following a request to delimit nautical boundaries. The determination of the nature of one or more features and their entitlement to maritime zones, consequently, was not to be the result of the font, but merely one tone in the structure process that leads to the determination of a nautical limit.
This has a significant practical consequence. An initial, more generous, acceptance of the principle that even bantam islets are entitled to all nautical zones can then be checked when determining the special/relevant circumstances that may have a behave on the final class of the boundary. [ 12 ]
This is, indeed, what happened in the Qatar/Bahrain case mentioned above. After recalling the general principle, the ICJ went on to examine the nature of Qit ’ at Jaradah and determined that it was an ‘ island ’ :
‘ The Court recalls that the legal definition of an island is ‘ a naturally formed sphere of land, surrounded by water, which is above water at high gear tide ’ ( 1958 Convention on the Territorial Sea and Contiguous Zone, Art. 10, para. 1 ; 1982 convention on the Law of the Sea, Art. 121, para. 1 ). The Court has cautiously analysed the testify submitted by the Parties and weighed the conclusions of the experts referred to above, in particular the fact that the experts appointed by Qatar did not themselves maintain that it was scientifically prove that Qit ’ at Jaradah is a low-tide natural elevation. On these bases, the Court concludes that the nautical have of Qit ’ at Jaradah satisfies the above-mentioned criteria and that it is an island which should as such be taken into retainer for the draw of the equidistance line. ’ [ 13 ]

The Court therefore seemed to suggest that Qit ’ at Jaradah would be given full effect in generating nautical zones. however, the final examination consequence is quite different, as finally Qit ’ at Jaradah did not even have effect for the boundary line of the territorial sea. In fact, according to the Court ,
‘ Qit ’ at Jaradah is a very small island, uninhabited and without any vegetation. This bantam island … situated about halfway between the main island of Bahrain and the Qatar peninsula. consequently, if its low-water line were to be used for determining a basepoint in the construction of the equidistance line, and this trace taken as the boundary line line, a disproportionate effect would be given to an insignificant maritime feature … The Court frankincense finds that there is a particular circumstance in this case warranting the option of a boundary line line passing immediately to the east of Qit ’ at Jaradah. ’ [ 14 ] The same methodology, which initially acknowledges full entitlement of an island but successively limits this effect when the probationary equidistance tune is corrected in light of the special circumstances of the lawsuit, was adopted in the early cases mentioned above. An case is provided in Romania/Ukraine, where the ICJ disregarded the belittled, uninhabited Serpent ’ randomness Island when drawing the boundary between the exclusive economic zone and continental shelves of the two States [ 15 ] without having to decide whether this feature of speech was an ‘ island ’ or a ‘ rock ’. [ 16 ]
In some cases, the concluding result has even been the opposite from what would stem from the application of the principle that ‘ the land dominates the sea ’, when international judges have wholly disregarded goodly, populate islands. For exercise, the International Tribunal for the Law of the Sea decided to give no effect to St. Martin ’ second Island, which has ‘ a coat area of some 8 square kilometres … sustains a permanent population of about 7,000 people … [ and ] receives more than 360,000 tourists every year ’ [ 17 ] on the preferably summary consideration that otherwise this ‘ would result in a line blocking the seaward projection from Myanmar ’ s coast in a manner that would cause an indefensible distorted shape of the boundary line line ’. [ 18 ]
In stopping point, when the entitlement of islands to maritime zones is discussed in the context of a casing involving the boundary line of nautical boundaries, there seems to be a cosmopolitan presumption that – in rationale – any island will generate not lone its own territorial sea, but besides its exclusive economic partition and continental shelf ( although this entitlement may have no bearing – in commit – on the final run of the maritime boundary ).
Partial or no genesis of nautical areas, consequently, is accepted merely as a hardheaded consequence of the application of the ‘ equitable solution ’ requirement of Articles 74 ( 1 ) and 83 ( 1 ) UNCLOS to the specific circumstances of the case. Construing lack of entitlement as a virtual, case-specific consequence, therefore, strengthens, preferably than weakening, the general principle according to which land – including islands – generate maritime zones .

3. The sea dominates the land?

In contrast to the cases mentioned so far, the South China Sea arbitration was the first case in which an international court was called upon to determine the nature of sealed maritime features, without at the lapp time being entrusted with the tax of drawing the nautical boundary between the parties to the dispute. This situation left no alternate to the Arbitral Tribunal but to consider the merits of Article 121 UNCLOS itself and has led to a careful, in-depth appraisal, which makes function of the unlike methods provided by Articles 31 and 32 of the Vienna Convention on the Law of Treaties in regulate to interpret this provision and clarify its content. [ 19 ]
As has already been noted by commentators, the Arbitral Tribunal finally set a high doorsill for evaluating whether a certain have is an ‘ island ’ or just a ‘ rock ’. While it has accepted that the judgment should business the ‘ objective capacity of the have to sustain homo inhabitancy or economic life ’, the Tribunal has besides added the evaluation of both ‘ time ’ and ‘ qualitative ’ elements, frankincense requiring that ‘ [ planck’s constant ] abitation and economic life must be able to extend over a certain duration and occur to an adequate standard ’. [ 20 ]
Furthermore, although the Tribunal openly rejects historic evidence as critical, [ 21 ] it however puts a great vehemence on the historical record. notably, it considers that ‘ testify of physical conditions will normally suffice only to classify features that intelligibly fall within one category or the other ’ [ 22 ] while in borderline cases ‘ the most authentic testify of the capacity of a feature will normally be the historic use to which it has been put ’, in particular ‘ evidence … that predates the initiation of the exclusive economic zones ’. [ 23 ]
It is not to be wondered that the Arbitral Tribunal in the South China Sea does not recall the principle that ‘ the land dominates the ocean ’. On the reverse, the impression is that in the South China Sea, the ocean dominates the land. Rather than looking at the land in the case and determining its entitlement to maritime areas, the Tribunal seems to consider what maritime areas could potentially be claimed, and whether such claims would be acceptable, in ordain to determine whether a feature is a rock or an island.
The Tribunal openly discloses the reasons at the basis of this restrictive set about. It considers that Article 121 ( 3 ) UNCLOS ‘ is a provision of limitation ’ which was adopted with ‘ the aim and determination of preventing impingement on the external ocean floor reserved for the common inheritance of world and of avoiding the inequitable distribution of nautical spaces under national legal power ’. [ 24 ] significantly, it adds that :
‘ [ metric ton ] he introduction of the exclusive economic zone was not intended to grant extensive nautical entitlements to small features whose historical contribution to human liquidation is equally little as that. Nor was the single economic zone intended to encourage States to establish artificial populations in the hope of making expansive claims, precisely what has now occurred in the South China Sea. On the contrary, Article 121 ( 3 ) was intended to prevent such developments and to forestall a provocative and counterproductive effort to manufacture entitlements ’. [ 25 ] One can surely feel very sympathetic with the Arbitral Tribunal ’ s last note, in particular if one considers the extent to which States are going to ‘ fabricate ’ entitlements, in the South China Sea angstrom well as in other parts of the populace ’ randomness oceans and the negative shock these activities have on international peace and security.
All the like, the statement of the Tribunal is not proof against criticism. Two aspects will be mentioned here. First, the Tribunal constantly refers to the exclusive economic zone alone ; however, Article 121 ( 3 ) excludes the entitlement of rocks to both the single economic zone and the continental ledge. One may entirely surmise why the continental shelf is never mentioned, but this reference book to one part only of the final part of Article 121 ( 3 ) appears to weaken the arguments advanced in the award.
Second, the vehemence on the historical phonograph record – evidenced, among others, by the reference to the features ’ ‘ historical contribution to human colonization ’ – generates the incriminate given that an island which has not been inhabited in the by will not be inhabited in the future. historical evidence is surely deciding of the capacity of an island to sustain homo dwelling. The opposition might not however be always true, as islands that had never been inhabited before start hosting human groups entirely by and by in clock time. One may actually wonder whether the Tribunal ’ s interpretation may not achieve the result of ‘ freezing ’ the relevant rules in the past. This palpate is strengthened if one takes into account the outright rejection of technology [ 26 ] and the marginalization of the function that consecutive State practice could play in the interpretation and the evolution of the content of the UNCLOS, including Article 121. [ 27 ]

4. Concluding remarks

The arbitral award in the South China Sea sheath has provided the inaugural juncture for an across-the-board discussion of Article 121 UNCLOS, and in particular for determining under what conditions dry estate emerging during high tide can be considered as an ‘ island ’ or a ‘ rock ’. This is a much needed clarification, coming at a time when States, in an feat to consolidate maritime claims, render situations that pose a menace to international peace and security.
Reactions by States have been varying and, in any case, it is necessity to keep in take care that the award is binding only on the States parties to the casing. One element of external practice that might be relevant is the 2018 ICJ judgment in the Costa Rica/Nicaragua event. In this judgment, the ICJ had to determine, among other things, whether Nicaragua ’ s Corn Islands generated nautical zones. The Court briefly noted that these islands ‘ have a significant number of inhabitants and sustain economic life ’ before concluding that they ‘ amply satisfy the requirements ’ of Article 121 ( 2 ) UNCLOS. [ 28 ] The Court did neither citation the principle ‘ the land dominates the sea ’ nor the South China Sea award analysis. [ 29 ]
It is even early to determine the affect of the award on the traditional principle that ‘ the farming dominates the sea ’ and its application to islands. The detail analysis of this award is surely likely to be referred to by scholars addressing the consequence of islands and rocks. At the same prison term, the psychoanalysis might finally prove to be more tied to the current geopolitical characteristics of the South China Sea than the award would appear to concede, and therefore more difficult to apply to other context .

* Associate Professor of International Law, University of Milano-Bicocca .
[ 1 ] North Sea Continental Shelf (Federal Republic of Germany v Denmark) ( Merits ) [ 1969 ] ICJ Rep 3 parity 96 .
[ 2 ] Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway) ( Merits ) [ 1993 ] ICJ Rep 38 parity 80 ; meet besides Aegean Sea Continental Shelf (Greece v Turkey) ( Jurisdiction of the Court ) [ 1978 ] ICJ Rep 3 para 86, according to which rights over nautical zones ‘ are legally both an emanation from and an automatic rifle adjunct of the territorial sovereignty of the coastal State ’ .
[ 3 ] United Nations Convention on the Law of the Sea ( adopted 10 December 1982, entered into power 16 November 1994 ) 1833 UNTS 397 ( UNCLOS ) .
[ 4 ] Art 121 ( 2 ) UNCLOS .
[ 5 ] Art 121 ( 3 ) UNCLOS .
[ 6 ] South China Sea Arbitration ( The Republic of the Philippines v The People’s Republic of China ) PCA sheath no 2013-19 ( Award of 12 July 2016 ) .
[ 7 ] In addition to W Gullett, ‘ The South China Sea Arbitration ’ s Contribution to the Concept of Juridical Islands ’ in this offspring, see besides S Faccio, ‘ The South China Sea Arbitration Award of July 12, 2016 : The intolerable lightsomeness of Being a Rock ’ ( 2017 ) 72 La Comunità Internazionale 623 ; JH Paik, ‘ South China Sea Arbitral Awards : Main Findings and Assessment ’ ( 2017 ) 20 Max Planck YB United Nations L 367 ; Y Tanaka, ‘ Reflections on the Interpretation and Application of Article 121 ( 3 ) in the South China Sea Arbitration ( Merits ) ’ ( 2017 ) 48 Ocean Development Intl L 365 ; M Loja, ‘ The Spratly Islands as a Single Unit Under International Law : A Commentary on the Final Award in Philippines/China Arbitration ’ ( 2016 ) 47 Ocean Development Intl L 309 ; N Oral, ‘ “ Rocks ” or “ Islands ” ? Sailing Towards Legal Clarity in the Turbulent South China Sea ’ ( 2016 ) 110 AJIL Unbound 279 ; AO Elferink, ‘ The South China Sea Arbitration ’ sulfur Interpretation of Article 121 ( 3 ) of the LOSC : A Disquieting First ’ ( 2016 ) The JCLOS Blog .

[ 8 ] For model, in Libya/Malta, both parties to the lawsuit ‘ agree [ d ] that the entitlement to continental ledge is the same for an island as for mainland ’ with Libya only arguing that ‘ while the entitlement is the same, an island may be treated in a especial way in the actual boundary line ’ ( Continental Shelf (Libyan Arab Jamahiriya v Malta ) ( Merits ) [ 1985 ] ICJ Rep 13 paratrooper 52 ). See besides Jan Mayen ( north 2 ) paratrooper 80, according to which Denmark, while referring to the language of art 121 UNCLOS, did not challenge the entitlement of the norwegian island of Jan Mayen to ( residual ) nautical zones beyond the territorial sea .
[ 9 ] See for example Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) ( Merits ) [ 1984 ] ICJ Rep 246 paratrooper 157 ; Aegean Sea ( nitrogen 2 ) parity 86 ; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) ( Merits ) [ 2001 ] ICJ Rep 97 belem. 185 ; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) ( Merits ) [ 2007 ] ICJ Rep 659 paras 113 and 126 ; Maritime Delimitation in the Black Sea (Romania v Ukraine) ( Merits ) [ 2009 ] ICJ Rep 61 para 77 ; The Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) ( PCA, Award of 7 July 2014 ) para 279 ; Continental Shelf (Tunisia/Libyan Arab Jamahiriya) ( Merits ) [ 1982 ] ICJ Rep 18 belem 73 ; Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh v Myanmar) ( ITLOS case no 16, Judgment of 14 March 2012 ) paratrooper 185 .
[ 10 ] Qatar/Bahrain ( normality 9 ) para 185, recalled in Nicaragua/Honduras ( north 9 ) parity 113 .
[ 11 ] According to the ICJ ’ sulfur description, ‘ at high tide its length and breadth are about 12 by 4 metres, whereas at low tide they are 600 and 75 metres. At high tide, its altitude is approximately 0.4 metres ’ ( Qatar/Bahrain ( normality 9 ) parity 197 ) .
[ 12 ] Following the well-established commit that boundary line first gear requires the draw of a probationary equidistance line and then consideration of whether special/relevant circumstances requiring an allowance of the line exist ; see, for the most holocene statement of this routine, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v Nicaragua) ( ICJ Judgment of 2 February 2018, nyr ) parity 98 ( for the territorial sea ) and para 135 ( for the exclusive economic zone and continental shelf, where a third step is besides provided ) .
[ 13 ] Qatar/Bahrain ( newton 9 ) paratrooper 195 .
[ 14 ] ibid paratrooper 219 .
[ 15 ] Romania/Ukraine ( newton 9 ) parity 185, where it is noted that ‘ the Court may on occasion decide not to take account of identical belittled islands or decide not to give them their full electric potential entitlement to maritime zones, should such an approach have a disproportionate effect on the boundary line telephone line under consideration ’ .
[ 16 ] ibid para 187 .
[ 17 ] Bangladesh/Myanmar ( normality 9 ) paratrooper 143 .
[ 18 ] ibid belem 318 .
[ 19 ] South China Sea Award ( newton 6 ) paras 473-553 .
[ 20 ] ibid para 504. The application of this standard seems to raise it even more than its abstract expression might indicate ; for model, according to the Tribunal, ‘ the criterion of human habitation is not met by the impermanent inhabitancy of the Spratly Islands by fishermen, even for extended periods ’ ( ibid parity 618, vehemence added ) .
[ 21 ] ibid parity 483 .
[ 22 ] ibid para 548 .
[ 23 ] ibid belem 549 .
[ 24 ] ibid para 535 .
[ 25 ] ibid para 621 .
[ 26 ] ibid parity 511. For some critical comments see the article by Gullett in this issue.

[ 27 ] Compare for model the drawn-out discussion of the travaux preparatoires in South China Sea award, belem 521-538, with the quick administration of State practice in South China Sea prize ( normality 6 ) para 553. The different discussion becomes even more significant if one considers that while consecutive State commit forms character of the general principle on interpretation ( art 31 ( 3 ) ( bel ) VCLT ), the travaux preparatoires are relevant entirely as auxiliary means of rendition ( art 32 VCLT ) .
[ 28 ] Costa Rica/Nicaragua ( north 12 ) paratrooper 140 .
[ 29 ] This might however be due to the traditional reserve of the ICJ to refer to the law of early courts .