AsianSIL Working Paper 2010/15

Rocks or Islands? The Asian Dilemma

Fiammetta Borgia
Assistant Professor of International Law, University of Rome Tor Vergata

Paper presented at the

2nd NUS-AsianSIL Young Scholars Workshop
NUS Law School
30 September 1 October 2010

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AsianSIL Working Paper 2010/15
Finalized 30 January 2011

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Asian Approaches to International Law: Theory, Institutions, Processes & Practices

Second NUS-AsianSIL Young Scholars Workshop
30 September -1 October 2010, Singapore

Rocks or Islands? The Asian Dilemma

Final Paper
Fiammetta Borgia Ph.D.

SUMMARY: 1. Introduction. 2. Recent developments in the Asian waters regime. 3.

Islands regime in United Nation Convention on the Law of the Sea. 4. Effects
produced by the presence of islands on maritime boundaries. 5. Island maritime
zones according to Article 123 (3) of UNCLOS. 6. 1. The practice of the Asian
States in interpretation of Article 121(3) of UNCLOS: the case of South China
Sea. 7. UNCLOS approach regarding the disputes over the sovereignty of
islands. 8. Concluding remarks.

I. INTRODUCTION

The new Law of the Sea as codified in the United Nations Convention on the

Law of the Sea (UNCLOS) in 1982 by providing a series of rights and obligations of
various kinds for the coastal states raises a number of issues, especially with reference
to the legal regime of marine areas and their boundaries. Indeed, the Convention
entered into force on 16 November 1994 and ratified by 159 States plus the European
Community (United Nations, 2009) established a number of maritime zones and
assigned exclusive rights and control on each of which to coastal States. The zones are:
territorial sea, contiguous zone, Exclusive Economic Zone (EEZ) and continental shelf.
Each maritime zone is measured seaward form baseline, a reference from which

Assistant Professor in International law, University of Rome Tor Vergata (Italy).

limits

of maritime jurisdictions are measured (UNCLOS, Art. 5, 7, 9, 10, 11, 12, 13, 47), with
different breadth for each zone.
The limit of territorial sea is 12 nautical miles from baseline (UNCLOS, Part II),
while contiguous zone is measured 24 M seaward from baseline (UNCLOS, Part II).
The breadth of Exclusive Economic Zone is defined beyond territorial sea up to 200 M
(UNCLOS, Part V). Unlike other maritime zones, the breadths of which are specific in
dimension, the breadth of the continental shelf does not depend solely on distance
criteria. Indeed, the outer limits of the continental shelf also consider the geology and
geomorphology of seabed (UNCLOS, Art. 76). Accordingly, UNCLOS does not fix a
value for the breadth of the continental shelf. However, the procedure to define the outer
limits of continental shelf has been established by the United Nations Commission on
the Limits of the Continental Shelf (CLCS), which issued the official guidelines for
coastal States.
The maritime zones set for the UNCLOS originate from customary law and the
four 1958 Geneva Conventions on the Law of the Sea: the Convention on the Territorial
Sea and the Contiguous Zone (CTS); the Convention on the High Seas (CHS); the
Convention on Fishing and Conservation of the Living Resources of the High Seas
(CFCLR); the Convention on the Continental Shelf (CCS); and the Optional Protocol of
Signature concerning the Compulsory Settlement of Disputes (OPSD). The CTS entered
into force on 10 September 1964; the CHS on 30 September 1962; the CFCLR on 20
March 1966; the CCS on 10 June 1964; and the OPSD on 30 September 1962.
The most relevant provisions introduced by UNCLOS are those regarding
1

archipelagic States and the proclamation of the EEZ ( ). In particular, the notion of the
exclusive economic zone seems to be an important component of the package of
concessions and exchanges that is represented by the 1982 Convention on the Law of
the Sea. It was a new concept, which has received rapid and general reception in State
practice and is thus now considered by some to be part of customary international law

Andrew L. SILVERSTEIN, Okinotorishima: Artificial Preservation of a Speck of Sovereignty (2009)

1 Brooklyn Journal of International Law 12 at 415.

( ). Indeed, this concept had a great impact in the developing world and widespread
diffusion: the idea and the effort lavished to protect the living resources of near coastal
waters resulted in a concept that defined the rights of the coastal state. The reaction of
the major fishing nations was to impose obligations through resource management
schemes, rather than to challenge the concept itself. Therefore, the EEZ regime gives
today sovereign rights over natural resources and control of resources-related activities
in the zone to coastal states, while preserving for the international community the
3

freedom of navigation, over-flight and laying of submarine cables and pipelines ( ).

In spite of this key role in the contemporary law of the sea, the maritime zones
set for by the UNCLOS and in particular the EEZ proclamation has posed some
4

difficulties with regard to its compliance with the doctrine of freedom of the seas ( ).
Indeed, if all coastal States claim and obtain the maximum maritime zones allowed by
the UNCLOS, roughly 44.5% of the worlds ocean could be under some form of
national jurisdiction. This would entail that the remaining high seas would cover around
5

55.5% of worlds ocean surface ( ). In this perspective, it would be difficult to avoid

overlapping claims between neighbour States on, e.g., the EEZ proclamation. In this
particular case to be able to fully claim EEZ, the distance of a coastal State from its
neighbours must be more than 2 times 200 M. In the case of the continental shelf case,
the distance required to avoid disputes would be even more. In conclusion, overlapping
claims of maritime zones among coastal States seem to be unavoidable because of the
geographical position of the States and the conformation of their coasts. Therefore, the
6

delimitation of maritime boundaries is often required ( ). Moreover, this result should be

reached by taking to account different requests and desires not only on the basis of
2

J.C. LUPINACCI, The legal status of the Exclusive Economic Zone in the 1982 Convention on the
Law of the Sea, in Francisco Orrego Vicua, ed., The Exclusive Economic Zone, a Latin American
Perspective, (Boulder: Westview Press, 1984).
3
S.N. NANDAN, The Exclusive Economic Zone: a Historical Perspective, in The Law and the Sea.
Essays in Memory of Jean Carroz, (Rome: FAO, Fisheries Dept., 1987) at 171-188.
4
Pittman B. POTTER, The Freedom of the Seas in History, Law, and Politics (New York: Longmans,
Green, 1924).
5
L. PRUETT, Area Calculations of the Claims and Potential Claims to Offshore Jurisdictional Zones
and High Seas, in Victor PRESCOTT and Clive SCHOFIELD, eds., The Maritime Political Boundaries
of the World (The Hague: Martinus Nijhoff Publishers, 2005).
6
Made Andi ARSANA, Farid YANIAR, SUMARYO, Geospatial Aspects of Maritime Boundary
Delimitation in the Singapore Strait involving Indonesia, Malaysia and Singapore, in FIG Congress
2010, Facing the Challenges Building the Capacity Sydney, Australia, Occasional Paper, 11-16 April
2010.

sovereignty aspirations of the involved States but also with regard to the environmental
issues, economic interests and navigational needs.
The process of maritime boundary delimitation between coastal States is
governed by public international law and in particular by the UNCLOS. Indeed, as
Prescott and Schofield (2005) suggested, maritime boundary delimitation is usually
resolved either through negotiation among affected parties or by submission of the case
to a dispute settlement mechanism, whether a private one or court or tribunals such as
7

ICJ and the International Tribunal for the Law of the Sea (ITLOS) ( ).
This process of delimitation of maritime zones has had particular impact and
significant implications in the Pacific Asia, particularly in the Western Pacific and East
Asia where the presence of several major archipelagic States, numerous straits used for
international navigation and the presence of islands, islets and rocks raises some
concerns about the maritime boundaries delimitations.
During the 1960s, the geologists affirmed the key role of this area because of its
rich natural resources such as oil, gas and fish as well as of marine living resources. The
huge economic potential of this region was thus clear. Moreover, its importance as a
strategic passageway is also unquestionable, since it contains critical sea lanes through
which oil and many other commercial resources flow from the Middle East and
Southeast Asia to Japan, Korea, and China. The strategic control over the free passage
of foreign warships and military aircraft is also at stake.
Years later, many Asian States made declarations and statements on signing,
ratifying or acceding to the 1982 UNCLOS or set up compliant domestic legislation
suggesting different positions of the involved States with regard to the Law of the Sea
issues. In addition, the 200 nautical M EEZ became an internationally accepted regime
8

giving costal States the right to claim exclusive jurisdiction over economic activities ( ).
Thus, as noted by Robert W. Smith (2010), control and sovereignty over any piece of
9

territory meant large areas of ocean space and seabed ( ).

Victor Prescott, Clive Schofield, supra note 5.

Robert W. SMITH, Maritime Delimitation in the South China Sea: Potentiality and Challenge (2010)
41 Ocean Development & International Law 3 at 214-236.
9
Ibidem at 227.
8

This scenario of overlapping sovereignty claims seem to menace peace and

stability in this area and the disputes arisen, including those regarding the existence of
archipelagos, islands, islets and rocks have become by now the subject for a key debate.

II.

RECENT DEVELOPMENTS IN ASIAN WATERS REGIME

The Eastern Sea is the second largest sea in the world, with an area of 648,000
sq. nautical miles. It encompasses vital sea routes linking the Pacific Ocean, the Indian
10

Ocean, Africa, the Middle East, and other regions with East Asia ( ) and it represents
the route for most of the fuel transported by sea from Middle East and Africa to Japan,
11

China, and South Korea ( ).

The position of these waters - where sovereignty and economic interests are
getting together - produces today a flashpoint with significant political connotations for
the international stability. If solution to the numerous delimitation claims between the
Asian States are not reached, the economic interests of almost all countries in the AsiaPacific region, would be adversely affected.
In this context, environment and geopolitics continue to play a critical role in
determining conflicts between nations. As Ewan W. Anderson noted: Boundaries
indicate the accepted territorial integrity of the state and the extent of government
control. In the majority of cases boundaries are legally recognized by the states which
share them and also by the international community. However, partly at least as a result
of the global geopolitical changes over the past decade, approximately one-quarter of
the worlds land boundaries can be classified as unstable. In addition, some two-thirds
12

of the global maritime boundaries have yet to be settled ( ).

In the Eastern Sea, Brunei, China, Malaysia, the Philippines, Vietnam, and
Taiwan claim jurisdictions over territorial waters and the continental shelf. In addiction,
10

Pham Thui TRANG, Eastern Sea Disputes and United States Interests (2009) 9 Issues and Insights
13 at 1-21.
11
Nhuyen HONG THAO, Ramses AMER, A New Legal Arrangement For the South China Sea?
(2009) 5 Center for Pacific Asia Studies.
12
Ewan W. ANDERSON, Geopolitics: International Boundaries as Fighting Places, in Colin S. GRAY
and Geoffrey SLOAN, eds., Geopolitics: Geography and Strategy (London: Frank Cass, 1999), at 125.

the sovereignty disputes over two strategic archipelagoes (Paracels and Spratlys),
between Southeast Asian countries, China, and Taiwan make the situation even more
complicated. The Paracels are claimed by China, Taiwan, and Vietnam, and the Spratlys
are claimed in part by the Philippines, Malaysia, Taiwan, and Brunei, and in whole by
13

China and Vietnam ( ). In the Northeast Asian Seas, which include the East sea, the sea
of Japan, the Yellow sea and the East China Sea, Japan has been recently involved in
animated disputes with Russia, South Korea, and China over several small islands to its
North and in the Japanese and East China Seas.
These islands and rocks could be have a key role in generating claims about the
proclamation of Exclusive Economic Zones to exploit economic resources as fish, oil,
and gas. However, these disputes seem to involve more than economic interests. Small
14

features have become powerful symbols of nationalist pride and politics ( ). In other
words, the islands in dispute have not intrinsic value themselves. Their relevance
depends on the maritime area that could be possibly generated from them that creates
the potential significance. Indeed, such significance will depend by the possibility (or
not) to generate sovereign rights over the natural resources on depart of the coastal
States
Disputes over small islands and ocean spaces are usually ancillary at most to
more fundamental geopolitical dialectics. However, in certain situations of big-power
rivalry and competition for scarce petroleum resources, such issues may become crucial
15

flashpoints of the international relations ( ).

III.
SEA

ISLANDS REGIME IN UNITED NATION CONVENTION ON THE LAW OF THE

The States interest to obtain quantitative and qualitative expansions of their

sovereign powers on maritime zones is strictly linked with the scientific and
13

Joshua P. ROWAN, The US-Japan Security alliance, Asean, and the South China Sea dispute (2005)
15 Asian Survey 3 at 404-436 and Leszek BUSZYNSKI, Iskandar SAZLAN, Maritime Claims and
Energy Cooperation in the South China Sea (2007) 29 Contemporary Southeast Asia 1 at 143-171.
14
Mark J. VALENCIA, Domestic Politics Fuels Northeast Asian Maritime Disputes (2000) 43 AsiaPacific Issues at 1.
15
Mark J. VALENCIA, The East China Sea Dispute: Context, Claims, Issues, and Possibile Solutions
(2007) 31 Asian Perspective 1 at 128.

technological progress which allows today to exploit economic resources in the seas.
This possibility induced costal States to creakingly extend their jurisdiction on the
waters, aiming at hoarding more and more maritime spaces, by using old concepts of the
Law of the sea as well as by creating new ones
For decades, the regime of islands has been an issue of great relevance for the
delimitation of the maritime spaces. For this purpose, islands were often considered as
special issues able to have a key impact in drawing the delimitation lines. In addition,
special attention was progressively given to their legal status. In particular the choice
was whether to consider the islands the same as continental lands or to give them
special status. This led to the interest demonstrated to this issue during the UNCLOS
III. However, because of the different positions of the States, the conference, after nine
years of negotiations, adopted a single provision concerning the islands: Article 121 of
16

UNCLOS ( ).
Article 121 (1) was inherited from the 1958 Convention on the Territorial Sea
17

and the Contiguous Zones without any change ( ). The definition of island is a land,
naturally formed, surrounded by water and above water at high tide. This definition is
able to attribute the legal status of island to all island formations, not taking in
consideration their dimension, their geological characteristics or the type of economic
life which they may have. The key element nowadays seems to be the concept of
naturally formed area. The scholarship agrees in accepting the human intervention to
prevent the disappearing of an island although the conduct of States aimed to build an
island is not able to fall in this definition. In this case, the lack of a natural process of
growth, in spite of the use of natural materials, conducts to exclude the analogy with
continental lands. In addition, the Convention does not explain clearly the meaning of
above water at high tide. However, the major controversies have arisen in connection
to the entitlement of maritime zones of islands, regulated by paragraphs 2 and 3 of
18

Article 121 ( ).
16

UN, United Nations Convention on the Law of the Sea with Annexes and Index, 1982, U.N. Doc.
A/CONF.62/122.
17
The UN Convention on the Territorial Sea and the Contiguous Zone, Geneva 29 April 1958, U.N.T.S.
205.
18
Marius GJETNES, The Spratlys: Are They Rocks or Islands? (2001) 32 Ocean Development &
International Law 2 at 191-204.

The statement that islands can generate maritime space in the same manner as
continental landmasses is contained in Article 121 (2) of the LOS Convention. During
the UNCLOS III, many proposals were aimed at limiting this similarity with the
continental lands, giving regard to the proportional difference between the island and
the surface of its costal State, or to the relation between the island population and the
19

population of its State. These proposals were rejected by the Conference ( ). As a

result, islands are defined in the Article 121 (1) as being entitled to have its own
territorial sea extended to a maximum of 12 nautical miles measured from the baseline,
a contiguous zone extended to a maximum of 24 nautical miles and 200 nm of EEZ and
20

Continental Shelf measured from that same baseline ( ).

Since, the maritime zones are calculated from the baseline, this has to be
properly drawn before any maritime zone can be delineated. This leads to the definition
of normal baseline which is another contested issue. According to Article 5 of the
UNCLOS, the normal baseline is the low-water line along the coast as marked on
large-scale charts officially recognized by the costal States. This baseline may,
however, be substituted with the method of straight baselines joining appropriate points
21

in certain geographical conditions ( ).

Article 7 of the UNCLOS establishes three main criteria for drawing these
straight baselines. Firstly and crucially, they should only be used in localities where the
coastline is deeply indented, or if there is a fringe of islands along the coast or in its
immediate vicinity. Secondly, the drowning of straight baseline must not depart to any
appreciable extent from the general direction of the coast, and the sea areas lying within
the lines must be sufficiently linked to the land domain to be subject to the regime of
internal waters. Thirdly, account may be taken of economic interests peculiar to the
region concerned, the reality and the importance of which are clearly evidenced by long
usage. Additionally, rules specific to deltas and similarly unstable coasts are provided.

19

UN, III UN Conference, Doc.A/CONF.62/WP.8.

UNCLOS, Articles 3 and 33. See also Marius GJETNES, supra note 18 at 192.
21
UNCLOS, Articles 7 and 47.
20

These seemingly strict criteria seem to have been interpreted very flexibly, or
22

even ignored in practice by countries in East Asia ( ). Almost all regional countries (i.e.
Cambodia, China, Japan, North Korea, South Korea, Malaysia, Myanmar, the
Philippines, Thailand and Vietnam) have used straight baselines for parts of their coasts
which are neither deeply indented or with a fringe of islands. The straight baseline
23

claims have excited international protests, most notably from the USA ( ).
Moreover, doubts subsist not only concerning Article 121 (1) and (2), but also
with regard to Article 121 (3). Indeed - by excluding from this definition rocks that
cannot sustain human habitation or economic life of their own - Article 121 (3) does not
allow a rock to have the same zones as a natural island (such as EEZ and a continental
shelf) and causes disagreement among scholars. This exclusion depends by the lack of
an effective and actual economic interest of the costal States in the maritime zones
aimed to the exploitation of the resources. It would be confirmed by the possibility of
the rocks to have other maritime zones, such as the territorial see and the contiguous
zone.
Therefore, it is generally recognized that Article 121 (3) raises a number of
complex interpretative difficulties that make not easy to establish to which islands it is
24

actually applicable ( ).
Firstly, in UNCLOS lacks a definition of rock. This ambiguity is arguably due
25

by the widely divergent views on the issue of islands in III UNCLOS Conference ( ).
Many proposals were submitted during the UNCLOS III on how to define islands,
islets, and rocks on the basis of size, but none achieved sufficient support for inclusion
in the final text.
22

Sam BATERMAN, Clive SCHOFILED, State Practice regarding Straight Baselines in East Asia Legal, Technical and Political Issues in a Changing Environment, Advisory Board on the Law of the Sea
(ABLOS) Conference on Difficulties in Implementing the Provisions of UNCLOS, International
Hydrographic Bureau, Monaco, Occasional Paper, 16-17 October 2008.
23
Ashley J. ROACH, Robert W. SMITH, United States Responses to Excessive Maritime Claims (The
Hague: Luwer Law International, 1994).
24
Alfred G. ELFERINK, The Islands in the South China Sea: How Does Their Presence Limit the
Extent of the High Seas and the Area and the Maritime Zones of the Mainland Coasts? (2001) 32 Ocean
Development & International Law 169 at 173.
25
R. BECKMAN, C. SCHOFIELD, Moving Beyond Disputes Over Island Sovereignty: ICJ Decision
Sets Stage for Maritime Boundary Delimitation in the Singapore Strait, (2009) 40 Ocean Development
& International Law 1 at 1-30 and at 9-11. On the legislative history of Article 121, see Satya NANDAN,
Sabtai ROSENNE, eds., United Nations Convention on the Law of the Sea 1982: A Commentare,
(Dordrecht: Martinus Nijhoff, 1995) at 321-339.

According to Brown, efforts were made to define island in order to make sure
that smaller bodies, such as rocks and inhabitable islets, could not be used as a yardstick
26

to measure independent territorial sea and other maritime zones around them ( ). As he
noted, in the UNCLOS there no quantitative criteria to define an island than being
above water at tide. Even small, barren rocks were regarded as falling within the
definition of an island and as being entitled to their own belt of territorial sea and
continental shelf. Brown concludes that it thus highly desirable that if UNCLOS was to
differentiate between the legal effects of different categories of islands, these categories
27

were carefully defined ( ).

In trying to outline an acceptable definition for this concept, a purely geological
28

definition of rock must be rejected ( ). Such a strictly literal interpretation would imply
to accept the coverage of Article 21 (3) to formations that are actually rocks without any
accompanying land. Other unproductive and uninhabitable insular formations, such as
cays and atolls, would in this case be considered islands no matter how small they are
and would generate an EEZ regardless of whether they can sustain habitation or
economic life.
Moreover, mathematical definitions do not appear helpful either. Although the
term island does not contain a mathematical definition or a predetermined size, Burke
stressed that anyone would think that a rock is smaller than an island or a smaller-sized
29

island ( ). Finally, a mathematical definition of island is provided by the

International

Hydrographic Bureau: from 1 to 10 square km small islets, from 10 to 100 square km

islets, from 100 to 5 x 106 square km islands. In this perspective, a rock is a body
smaller than an islet; in other words, its area would be less than 1 square km.
Despite of this clarification, as previously stated, the possibility for a rock to
generate an EEZ for a rock relies solely on its possibility to sustain human habitation
or have economic life of its own. However, this sentence of the Article 121 (3) brings
forward various difficulties in interpretation as well. Indeed, if affirms the existence of

26

Edith D. BROWN, The International Law of the Sea (Boston: Kluwer Law Internatonal, 1994) at 148.
Ibidem at 150.
28
In geology, rock is a naturally occurring aggregate of minerals and/or mineraloids.
29
William T. BURKE, The New International Law of Fisheries: UNCLOS 1982 and Beyond (Oxford:
Oxford University Press, 1994) at 5-31.
27

two categories of rocks: (1) those that cannot sustain human habitation or economic
30

life of their own; and (2) those that can sustain either or both ( ).
The question about the meaning of this sentence remains unanswered, in spite of
31

the fact of a large amount of efforts have been done to seek for a solution ( ).
Kwiatkowska and Soons claim that even a lighthouse or other aid to navigation built on
a rock gives it an economic life of its own due its value to shipping. Others authors
affirm that this sentence does not exclude islands obtaining external support. But the
majority of scholars maintain that only the possibility to sustain, without external
support and on the basis of its natural resources, stable communities or organized group
of human beings may meet the criterion included in the paragraph (3) of Article 121
32

( ).
Due to the lack of precision and ambiguity in this provision, it is not easy to
reach an interpretation of the notion of rock capable of being included in the general
legal status of island. Thus, its entitlement (or not) to generate maritime zones and its
effects upon maritime boundaries may be a destabilizing factor of the existing maritime
order.

IV. EFFECTS PRODUCED BY THE PRESENCE OF AN ISLAND ON MARITIME

BOUNDARIES

As previously stated, the existence of an island or islands in the maritime

delimitation process may have a effect upon maritime boundaries: its presence may
constitute a special circumstance and it needs to be taken into account fully, partly or be
30

Jon M. VAN DYKE, Dale L. BENNETT, Islands and the Delimitation of Ocean Space in SCS
(1993) 19 Ocean Yearbook at 78. See also M. Gjetnes, supra note 18, at 194.
31
Jon CHARNEY, Rocks that Cannot Sustain Human Habitation (1999) 93 American Journal of
International Law at 863-877; Barbara KWIATKOWSKA, Alfred H. SOONS, Entitlement to Maritime
Areas of Rocks which Cannot Sustain Human Habitation or Economic Life of Their Own (1990)
Netherlands Yearbook of International Law at 139-181; Jon M. VAN DIKE, Robert A. BROOKS,
Uninhabited Islands: Their Impact on the Ownership of the Oceans Recources (1983) 12 Ocean
Development and International Law at 265-300 and at 286-287; Alfred G. Elferink, supra note 24 at
173.
32
Robert Beckman, Clive Schofield, supra note 25 at 10. See also Barbara Kwiatkowska, Alfred H.
Soons, Entitlement to Maritime Areas of Rocks, supra note 31 at 139-181 and at 167-168. See also Jon
M. VAN DYKE, Robert A. BROOKS, Uninhabited Islands: Their Impact on the Ownership of the
Oceans Resources (1982) 12 Ocean Development and International Law at 265300; Jon Charney,
supra nota 31.

ignored by States or the courts. Isolated islands or group of islands may be situated in
the proximity of the coast, in areas where there are competing claims between two or
more States, or they may also even lie on the bad side of a median or equidistant. In
all these cases, delimitation through agreement or third party settlement

becomes

necessary.
Rules on delimitation were drafted and incorporated into the Convention on the
Territorial Sea and the Convention on the Continental Shelf. They were later
renegotiated during the UNCLOS III and are currently laid down in UNCLOS Articles
15, 74 and 83. Besides these provisions, however, the States practice are mainly
governed by bilateral treaties. Therefore, it is not easy to draw general conclusions. The
effect islands have on the issue of delimitation differs from one island to another.
Depending on the circumstances, islands may be given full or partial effect. In certain
cases, they may even be ignored. In other cases, they may be enclaved, which means
that the delimitation may be carried out between the mainlands as if the island did not
33

exist, and the island may then be given its own maritime space around its coasts ( ).
In the 1982 Tunisia/Libya case, the ICJ attributed half-effect to the Kerkennah
34

Islands because of their size and position ( ). Despite its size and population, the
island of Jerba, in contrast, had no weight on the delimitation line because the conduct
of parties indicated no need to consider it as a relevant circumstance.
In the 1984 Gulf of Maine case, the ICJ decided to reduce the relevance of tiny
islands, uninhabited rocks or law-tide elevations, sometimes lying at a considerable
35

distance from terra firma ( ). However, it considered that the relevance of Seal Island
by reason both of its dimensions and, more particularly, of its geographical position,
as well as the fact that it is inhabited all the year round. It was therefore given halfeffect.
In the 1985 Guinea/Guinea-Bissau case, the ICJ featured three categories of
islands: a) the coastal islands, separated from the continent by narrow sea channels or
narrow watercourses and are often joined to it at low tide; b) the Bijagos islands; and c)

33
34
35

1977 France/UK case. Par. 186.

1982 Tunisia/Libya case. Par. 128.
1984 Gulf of Maine case. Par. 201

36

the more southerly islands scattered over shallow areas ( ). With respect to the first
category of islands, the Court observed that they should be considered as forming an
integral part of the continent. The second group, the Bijagos archipelago, was taken into
account in determining the coastal configuration. The third group, in contrast, were
simply ignored, but one of them, the island of Alcatraz, played a more important role in
defining the line than the larger Bijagos islands most of which were inhabited.
In the 1999 the EritreaYemen case, the Arbitration was about the drawing of
the delimitation line between opposite coasts of the parties in the Red Sea. Both parties
agreed on the median line, but the main problem was to determine the baselines from
their coasts. By its Award in Phase I of 9 October 1998, the Tribunal decided on the
sovereignty of each State party over numerous islands, islets and rocks, situated in that
Sea. By drawing their maritime boundary line, not all islands on each side got the
breadth of the territorial sea of 12 miles, but none of them was cut off by that line either.
In the 2001 Qatar and Bahrain case, the Court was involved in the maritime
delimitation and territorial issues between in the southern part of the Arabian/Persian
Gulf. Its subsoil is the richest in the world in oil resources. Therefore, the low-tide
elevations in that area were of extreme importance for the delimitation. The Hawar
Islands, distanced only three miles from the mainland of Qatar, belong to Bahrain; but
37

Qatar has sovereignty over the nearby Janan Islands, including Hadd Janan ( ).
The 2002 Judgment by the ICJ on Land and Maritime Boundaries between
Cameroon and Nigeria was important for partly delimiting the waters of the Lake Chad
between the parties. The long common boundary on land was traced mainly by taking
into account the principle of uti possidetis. The Court dismissed the claim by Cameroon
to take into account the coastline which goes from Akasso (Nigeria) up to Cap Lopez in
Gabon, and in tracing the median line to take into account the presence of Bioko Island,
belonging to Equatorial Guinea, only as a relevant circumstance.

36

1985 Guinea/Guinea-Bissau case. Par. 95.

Vladimir D. DEGAN, Consolidation of Legal Principles on Maritime Delimitation: Implications for
the Dispute between Slovenia and Croatia in the North Adriatic (2007) 6 Chinese Journal of
International Law 3 at 610.
37

More recently, the 2008 Judgment of ICJ concerning Sovereignty Over Pedra
38

Branca, Middle Rocks and South Ledge Between Malaysia and Singapore ( ), removed
a major obstacle to progress on the delimitation of maritime boundaries in the eastern
Singapore Strait and set the scene for potentially complex maritime boundary
negotiations involving the three littoral states of the region.
As it can be drawn from by the analysis of these decisions, case law seems to
indicate that the effect of islands depends on whether they have a distorting effect on
39

delimitation line and whether they can help to achieve an equitable result ( ). Beckman
and Schoefield argue that there has been a sustained trend in international jurisprudence
toward awarding small islands reduced effect in maritime boundary delimitation,
especially where such islands are pitted against mainland coasts and a great disparity in
40

relevant coastlines is evident ( ). In State practice, the situation concerning islands is

mostly the same: small coastal islands and islets have been ignored in a number of
boundary determinations. In the India-Sri Lanka maritime boundary agreement, for
example, the small Adams Bridge islands on both sides of the boundary were
disregarded for delimitation purposes. A number of small islands were ignored in the
delimitation of the Iran-Qatar boundary, and the larger island of Ven was ignored in the
41

boundary settlement between Denmark and Sweden ( ).

Moreover, these delimitation solutions concerning insular formations are not
always mutually exclusive, particularly in situations involving multiple islands, as the
case of the South China sea. It is significant that in the North Sea Continental Shelf
case, the ICJ stated that a apart from the equidistance method, other methods exist and
may be employed alone or in combination, according to the areas involved. Furthermore
the ICJ added that there was no legal limit to the considerations which States may take
42

into account for the purpose of making sure that they apply equitable procedures ( ).

38

The Court ruled that sovereignty over Pedra Branca rests with Singapore and sovereignty over Middle
Rocks rests with Malaysia. Sovereignty over South Ledge was not specifically determined by the Court.
39
Nugzar DUNDA, Delimitation of Maritime Boundaries between Adjacent States United Nations, The
Nippon Foundation Yellow, Tokio, Occasional Paper, 2007 at 63.
40
Robert Beckman, Clive Schofield, supra note 25 at 16.
41
Lewis M. ALEXANDER, Baseline delimitations and maritime boundaries (1983) 23 Virginia
Journal of International Law at 524.
42
ICJ Rep., 1969, 3, 46.

IV. ISLAND MARITIME ZONES ACCORDING TO ARTICLE 123

(3) OF UNCLOS

As mentioned beforehand, according to Article 123 (3) UNCLOS, islands and

rocks that can host human habitation or economic life on their own are entitled to have
the same four maritime zones of other land territories. With regard to territorial sea and
contiguous zones - spazio 12 and 24 miles respectively - the problems that may arise
from delimitation are relatively simple, except in the geographic circumstances where
43

foreign islands group is situated next to the coast line of another State ( ).
IN spite of this, the entitlement of EEZ and continental shelves to islands under
Article 121 (2) of UNCLOS creates more difficulties. In both cases, two particularly
complicated situations may arise. If we assume an island situated away from a State
and closer to another, on the latter's continental shelf (or on the edge of or beyond the
continental shelf), it would generate its EEZ in a relatively small portion of seats.
Another case takes place when an island is owned by a State A but its geographical
location is far from the State's mainland continental shelf or EEZ. This is the most
common case of colonial possessions, which are usually in a mid-ocean position and
may also be situated in the proximity of the coasts of another State. In this case it
would be likely that disputes arise on sovereignty of the concerned areas because of the
overlapping of maritime zones.
However, apart from territorial sea and contiguous zone, the entitlement to the
other maritime zones, such as the EEZ and the continental shelf, does not follow
automatically from island status as defined in Article 121 (1). In the case of the small
islands (rocks), Article 121 (3) denies only an exclusive economic zone and a
continental shelf to them. This happens notwithstanding the fact that those rocks are
entitled to the remaining maritime jurisdictions, a territorial sea and a contiguous zone.
As previously stated, several scholars tried to deal with the elements that emerge
44

from a close reading of Article 121(3) ( ), such as the size of the island and its capacity

43

Robert D. HODGSON, Islands: Normal and Special Circumstance, in John K. GAMBLE, Giulio
PONTECORVO, eds., Law of the Sea: the Emerging Regime of the Oceans (Cambridge, MA:
Lippincott/Ballinger, 1974).
44
Alfred G. Elferink, supra note 24 at 173.

to sustain human habitation or economic life of its own. However the reasons for
depriving small insular formations of a 200 nm EEZ seems to be found in the fact that a
tiny isolated rock, permanently above waters, might deprive a neighboring State of its
45

potential EEZ ( ). Furthermore, if every islet were allowed to generate such a 200-mile
zone, the high seas and the international area of the seabed would be drastically
curtailed, and the oceans of the world would be dotted, with vast lakes of EEZ
surrounding each islet. This point of view was shared in the same UNCLOS III when
several delegations stressed these doubts and proposed for a reappraisal of the EEZ for
the islands, because of the inequitable results that may results in conceding EEZ to
every island. The choice was between preserving an expansive area for maritime
common space beyond national jurisdiction for the benefit of all humankind and
46

recognizing the claims of costal states to maximized zone of natural jurisdiction ( ).

Thus, the whole purpose of article 121 (3) was to make certain that insignificant
features, particularly those far from areas claimed by the other States, could not
47

generate broad zones of national jurisdiction in the middle of the ocean ( ). Today,
similar concerns have arisen in the cases of islands where the entitlement to a
continental shelf and EEZ has caused an overlapping of maritime zones with other
States. Indeed, very few islands are so distantly located as not to be involved in such a
situation of prima facie overlap of regimes.
48

In a recent Declaration set forth the Volga Case ( ), the judge Vukas reminded
how the EEZ was basically the result of a resolution adopted at the 1958 United Nations
Conference on the Law of the Sea, which considered as special situations of countries
whose costal population depend upon coastal fisheries for their livelihood or economic
development in an area of high seas adjacent to the territorial sea of the coastal State
49

( ). The insistence of developing costal States to obtain preferential fishing rights is the

45

Clive R. SYMMONS, Historic Waters in the Law of the Sea: a Modern Re-appraisal, (Leiden:
Martinus Nijhoff, 2008).
46
Jon Charney, supra note 31 at 865.
47
Ibidem at 866.
48
Russian Federation v. Australia (Volga Case) Declaration of Voce-President Budislav Vukas, avaible
www. itlos.org.
49
Ibidem.

reason of such new maritime zone and its purpose was to help them gain access to the
50

resources they previously could not claim ( ).

Considering that, the only legitimate reason for establishing an EEZ around
rocks (which is not allowed currently in international law) seem to be preserving marine
resources for the common heritage of mankind. But, even in this case, it appears that
would be unnecessary and confusing if individual States adopt and apply their own
measures in the exclusive economic zone they have proclaimed. The institution of an
EEZ set forth the UNCLOS is aimed to other functions rather than to obtain more zones
of sovereignty by the costal States and the presence of islets or rocks in progress are
not entitled to acquire more control over the sea. In other words, the law of the sea
continue to exclude the relevance of the rocks to obtain an own EEZ as well as an own
continental shelf. Despite of this, in the practice, many States in the Asian seas
apparently not agreeing with this point.

V. THE PRACTICE OF THE ASIAN STATES IN INTERPRETATION OF

ARTICLE 121(3) OF UNCLOS: THE CASE OF SOUTH CHINA SEA

The South China Sea is a semi-enclosed sea defined by UNCLOS article 122,
with an area of 648,000 sqnm. There are hundreds of small islands in the SCS, namely
uninhabited islets, shoals, reefs, banks, banks, sands, cays and rocks. They are
distributed widely in the form of the four groups of islands and underwater features i.e.
the Pratas Islands, the Paracel Islands, the Maccelesfield Band and the Spratly Islands.
Therefore the matter of maritime boundary delimitation in the South China sea is
especially problematic, primarily because of the presence of such small entities. The
present situation would be defined in terms of overlapping unilateral claims to
sovereignty over a range of various semi-submerged natural formations spread
throughout the region.

50

Rene J. DUPUY, Daniel VIGNES, eds., A Handbook On the New Law of the Sea (Boston: Brill, 1991)
at 561.

Currently, eight states claim rights on these South China sea islands. Singapore
and Malaysia claim rights over Pisang Island and Pulau Batu Puteh, strategically
51

situated in the congested waters of Malacca and Singapore Straits ( ). China, Taiwan
and Vietnam contest each others claims to sovereignty over the Paracel Islands, a group
of fifteen islets and several reefs and shoals scattered over a 200-kilometer area in the
52

middle of the Gulf of Tonkin ( ). Taiwan also contests Chinas claims to Prats Islands
and the Maccelesfield Bank. As for the Spratlys, six parties bring claims forward: China,
Taiwan, and Vietnam claim the entire archipelago, while the

Philippines,

Malaysia and Brunei reclaim sovereignty over portions of the Spratlys. Except for
53

Brunei, all the others have established a military presence in the Spratlys ( ). Among
these disputes, the case concerning the Spratly Islands is the most complicated since it
has been ongoing for a long time and involves as many as five states. These islands are
situated in the southern reaches of the South China Sea: it consists of some 170 lowlying features. The total land area of the tiny islands is not more than 2 to 3 sq. km in an
ocean area covering over 200,000 square kilometers. They never hosted permanent
population or any lasting economic activities, but they are now the centerpiece of
intense competition and conflicting claims. Six parties such as China, Vietnam, the
Philippines, Malaysia, Brunei and Taiwan reclaim all or some of the tiny Spratly islets
and their surrounding maritime area. The States involved in this dispute, have
established military outposts and other facilities in the aim of demonstrating the
seriousness of their sovereignty claims. This competitive occupation has periodically

51

Douglas M. JOHNSTON, Marc J. VALENCIA, Pacific Ocean Boundary Problems: Status and
Solutions (Boston: Martinus Nijhoff, 1991) at 128-134.
52
Marwyn S. SAMUELS, Contest for the South China Sea (New York: Methuen, 1982) at 98-118;
Steven KUAN-TSYH YU, Who Owns the Paracels and Spratlys? An Evaluation of the Nature and Legal
Basis of the Conflicting Territorial Claims, in Robert D. HILL, Norman G. OWEN and Edward V.
ROBERTS, eds., Fishing in Troubled Waters: Proceedings of an Academic Conference on Territorial
Claims in the South China Sea (Hong Kong: Centre of Asina Studies, 1991) at 48-74 and Teh K.
CHANG, Chinas Claim of Sovereignty Over the Spratly and Paracel Islands: A Historical and Legal
Perspective (1991) 23 Case Western Reserve Journal of International Law at 399.
53
Christopher JOYNER, The Spratly Islands Dispute in the South China Sea: Problems, Policies, and
Prospects for Diplomatic Accommodation (Oxford: Clarendon Press, 2002,)
at 56. See also Mark J.
VALENCIA, South-East Asian Seas, Oil under Troubled Waters: Hydrocarbon Potential, Jurisdictional
Issues and International Relations (Singapore: Oxford University Press, 1985) at 8789. For historical
assessments of claims to the Spratlys, see Steven Kuan-Tsyh Yu, supra note 52 and Teh K. Chang, supra
note 52 at 399-420.

grown over the past five decades: each country staked out the other in its territorial and
maritime claims to the Spratly Islands.
Three issues seem to be the core of the disputes on islands in South China Sea:
the question of the sovereignty, the entitlement of the maritime zone and the
delimitation of EEZ and Continental Shelf.
The issue of sovereignty over these lands lies in its capacity to engender conflict,
political and naval, in domestic terms, bilaterally, sub-regionally and in the Asia Pacific
as a whole. While the dispute over sovereignty has, as with any dispute over territory, a
unique capacity to engender hostilities and arouse passions, it is surely subordinate to
the larger question jurisdictional question in the South China Sea, namely, the
apportionment of maritime space between the littoral states. As Gjetnes noted, each
claimant state should therefore realize that its claim may not ultimately or completely
prevail if the dispute were to be referred to arbitration. It is highly improbable that they
will be prepared to risk all in a third-party tribunal ruling that may create winners and
losers. However, this does exclude the possibility that a tribunal could be used in order
to resolve some different questions. The question of whether or not any of the features
54

has the capacity to generate extensive maritime zones certainly is one such question ( ).
This second question relates to the entitlement of the maritime zones to the
islands or other features in the South China Sea and appears extremely difficult since
the status of these features may vary over time, as well as the possibility to apply Article
121 of UNCLOS. Doubts remain about the interpretation and application of this
provision, but it seems that at least some of the islands in the South China may have an
EEZ and continental shelf; others can almost certainly be considered rocks, according to
Article 121(3). Whit specific reference to the Spratly, it seems that none of these
features can at present be said to have been proven capable of sustaining human
habitation or economic life of their own. It thus seems quite likely that if some of the
claimant States should succeed in their quest for sovereignty, since they would gain
little from the victory in terms of recognized maritime zones.

54

Marius Gjetnes, supra note 18 at 202.

55

According to Elferink ( ), two scenerios may be envisaged in the South China

Sea. If these islands are excluded from establishing the extent of the EEZ, there remains
56

a considerable area of high seas in the central part of the South China Sea ( ). Instead,
if all these islands generate an EEZ, it would appear that no areas of high seas would be
left in the South China Sea. Moreover, the part of EEZ of these islands would overlap
57

with the EEZ of the landmass coasts close to the South China Sea ( ).
The third issue is related to the maritime delimitation of EEZ and continental
shelf. The part of the maritime zones of the islands that do not overlap with those of the
mainland coasts cannot be the subject of delimitation. In areas of overlap of the EEZ
and continental shelf of the islands with those of the mainland coasts there is a need for
delimitation. Elferink claims that delimitation in this case not result in a boundary that
coincides with the 200 nautical mile limit of the mainland cost, leaving the islands only
the remaining maritime areas. As noted above, the law of the sea is clear that where a
maritime space is to be delimited between a mainland and an island, the island is
unlikely to receive full effect, specially the smaller and more insignificant futures.
Concerning the question of the delimitation of the continental shelf beyond 200
nautical miles under Article 76 of UNCLOS a number of complications would arise.
The Rules of Procedure of the Commission on the Limits of the Continental Shelf
(CLCS) seem to exclude to consider any submission without the prior consent of all the
states involved in these disputes. The existence of a continental shelf beyond 200
nautical miles would not lead to substantially different outcomes of maritime
delimitation between the islands and the mainland coasts. However, there could be a
divergence between the EEZ ad continental shelf boundaries in certain areas, implying

55

Alfred G. Elferink, supra note 24 at 182.

It seems likely that least part of this area might be claimed as part of the legal continental shelf of the
mainland coasts under Article 76 of the UNCLOS Convention.
57
For exemple, an EEZ of Pratas island, which is under the sovereignty of China/Taiwan, would overlap
with the EEZ of the Philippines. The EEZ of the Paracel Islands, which are in dispute between
China/Taiwan and Vietnam, would overlap with the EEZ of the Chinese islands of Hainan and the
Vietnamese mainland coast. Scarborough Reef, which is claimed by China and the Philippines, is situated
well within the EEZ of the Philippines. An EEZ for the entire Spratly Islands group would overlap with
the EEZ of all the coastal states bordering the South China sea except for that of China/Taiwan. The fact
that all of the coastal states of the SCS, except Indonesia, claim one or more of the Spratly islands make
this the most complex dispute in terms of territorial sovereignty and claims to maritime zones.
56

that one state may have jurisdiction over the water-column (EEZ) and another state may
58

have jurisdiction over the seabed and its subsoil (continental shelf) ( ).
In conclusion, the resolution of these regional conflicts over the South China
cannot take into account the economic interests in exploiting some of the worlds
richest fishing waters, as well as the hopes of the costal States to use those potentially
large reserves of oil and natural gas existing in the South China Sea. Moreover, these
islets are of strategic significance for sea-lane defense, interdiction, and surveillance for
both major and minor powers. According to these considerations, it can be affirmed that
what makes these disputes particularly sensitive and dangerous is that they are
perceived by both internal and external polities as challenges to the integrity of the
nation-states and
59

to the strength and effectiveness of their government ( ).

VI. UNCLOS APPROACH REGARDING THE DISPUTES OVER THE SOVEREIGNTY OF

ISLANDS

According to Smith and Thomas, the disputes involving islands fall under two
major categories: i) disputes over the sovereignty of the islands itself; ii) disputes over
60

the affect the islands may have on the delimitation of adjacent maritime space ( ).
This distinction appears to be essential in relation to the particular type of
dispute and the role the UNCLOS may have, or not, in achieving a solution. Whereas
the UNCLOS deals with boundary delimitation situations, there are no provisions that
address how to resolve sovereignty disputes. The UNCLOS provides for different
bodies to resolve disputes and the CLCS to give recommendations for the limits to
continental shelves beyond 200 nautical miles, but nothing in the text of the Convention
61

address sovereignty issues ( ). Due to the lack of provisions and bodies, States have
turned to different forms of dispute settlement, but these have often been bilateral

58

Alfred G. Elferink, supra note 24 at 183.

Daojiong ZHA, Mark J. VALENCIA, Mischief Reef: Geopolitics and implications (2001) 31 Journal
of Contemporary Asia 1 at 90.
60
Robert W. SMITH, Bradford THOMAS, Island Disputes and the Law of the Sea: An Examination of
Sovereignty and Delimitation Disputes (1998) 2 Maritime Briefing 4 at 14-16.
61
Robert W. Smith, supra note 8 at 220.
59

agreements between the claimants and not necessarily complied with the LOS
Convention.
When the dispute concerns delimitation issues, Articles 287 and 298 of
UNCLOS may apply. Article 287 allows States the choice of a dispute settlement body
to solve disputes on the interpretation of UNCLOS provisions. These third party
settlement fora play a key role in disputes concerning the island regime. A State may try
to raise the specific question of whether a particular feature is a rock or an island under
Article 121 without asking a tribunal or court to be involved in the actual maritime
delimitation. Such a decision could then be used by a State in influencing negotiations
over the boundary. Indeed, the application of Article 298, in theory, does not exclude
disputes over the interpretation or application of Article 121 from compulsory
procedures entailing a binding decision if a State has otherwise so elected.
In practice, China has already made a declaration to exclude all disputes
provided by Article 298. Therefore, in any case, any disputes in the South China Sea
concurrently involving a dispute concerning sovereignty or other rights over territory
seem to be excluded from the compulsory dispute settlement provisions of the
Convention.
Such desire to avoid compulsory procedures entailing binding decisions is
obvious. The conciliation process in Article 298 returns States to negotiation. The
inclusion of an optional exception for disputes relating to Articles 15, 74, 83
demonstrates the emphasis given to the States decision-making and agreement.
However, a compulsory dispute settlement is provided by the Convention in
drawing the straight baselines. Article 7 of UNCLOS, indeed, sets out the criteria for
drawing such straight baselines. While Article 16 permits some external examination in
the process of registering and publicizing baselines used for maritime delimitation,
States could freely interpret the provisions of the Convention with the aim to augment
62

their exclusive maritime space ( ). Where this action affects on areas that would
otherwise constitute high seas, all States have an interest in ensuring that the legal
standards are preserved and defended: in these cases mandatory jurisdiction plays an

62

Natalie KLEIN, Dispute settlement in the UN Convention on the Law of the Sea (Cambridge:
Cambridge University Press, 2005) at 279.

essential role. In the same way, article 121 of UNCLOS creates standards that impact on
States entitlement to maritime areas. Unlike Article 7, article 121 is an innovation in
UNCLOS in that, it expressly excludes that rocks included in Article 121 (3) generate
rights to an EEZ and continental shelf. Despite the question about what constitutes a
rock remains to be clarified by the practice of States and by third-party decisions,
compulsory dispute settlement may provide a check on the power of States through the
interpretation and application of Article 121, paragraph 3 and thereby prevents the
unlawful extension of exclusive rights into the high seas. In conclusion, the application
of Article 7 and 121 allows addressing to disputes that may otherwise be excluded from
63

mandatory jurisdiction ( ).

VII.

CONCLUDING REMARKS

The UNCLOS, with its capacity to generate a maritime space, seems to have
worsened, rather than simplified, the Asian concerns about islands and rocks. Whether
or not a particular piece of land is an island, it is relevant both in maritime boundary
negotiations between adjacent or opposite States and in establishing the extent of
maritime jurisdiction of the States. In spite of this, when a rock is qualified as island, the
solution of a dispute over the sovereignty on an island appears as being a prerequisite
for the settlement of the maritime boundary of the island. Technological progress has
made possible to create artificial installations very similar to natural islands. Thus,
nowadays, the line between natural and artificial human intervention is often confused.
The criteria laid down in Article 121 UNCLOS, which defines an island as a naturally
formed area of land, surrounded by water, which is above water at high tide, seems
therefore to be not fit to face the new challenges posed by the law of the sea. The
disputes arisen in Asia and in particular in the South China Sea show the disagreement
of the States about this issue. The practice of these States seem often to push forward
the recognition of more maritime zones even to small entities.
However, according to the law of the sea, a rock - in spite of being a kind of
island (in geological sense) cannot generate an EEZ or continental shelf when it cannot
63

Ibidem at 279.

host human habitation or economic life on its own; this notwithstanding the fact that it
might as well generate a territorial sea. Similarly, artificial islands, man-made
installations or structures, although above water at high tide, cannot be regarded as
islands, and therefore cannot have territorial seas, EEZ or continental shelves.
Therefore, the efforts made by the Asian States to demonstrates human habitation or
economic life on the rocks seem to be insufficient to guarantee a change of regime from
paragraph 3 to paragraphs 1 and 2 of the UNCLOS. A simple reading of the considered
provision proves how building artificial structures around the rocks with the aim to
increase its extent is not enough to entitle the rocks of maritime zones, above all of
EEZ. Indeed, as stated by the Volga Case, the establishment of EEZ around rocks and
64

other small islands serves no useful purpose and it is contrary to international law ( ).

64

Russian Federation v. Australia (Volga Case) Declaration of Voce-President Budislav Vukas, avaible
www. itlos.org.