A. Dokdo/Takeshima Dispute (the Republic of Korea v. Japan)

The Dokdo/Takeshima dispute concerns territorial title to two rocky islets and thirty-two smaller outcroppings that have a combined land area of 0.18 square kilometres located halfway between the Republic of Korea and Japan—approximately 215 kilometres from mainland Korea and 250 kilometres from the main island of Japan, Honshu. The Republic of Korea bases its claim to territorial title over the islets on geographical proximity and historical official documents.Footnote ⁸ Japan, on the other hand, has argued that Dokdo/Takeshima were terra nullius and open to acquisition in 1905 when the territory was incorporated into the Shimane Prefecture.Footnote ⁹ Considering this to be linked with Japan's attempt to annex the Korean Peninsula which eventuated in 1910, the Republic of Korea regards Japan's claim as “the legacy of Japan's imperialism and colonialism”.Footnote ¹⁰

Under Article 2(a) of the 1951 Peace Treaty, Japan renounced “all right, title and claim to Korea, including the islands Quelpart, Port Hamilton, and Dagelet”, but without a reference to Liancourt Rocks, which is the English name of Dokdo/Takeshima that appeared in the earlier Treaty drafts.Footnote ¹¹ The absence of any reference to Dokdo/Takeshima indicates that its status remained indeterminate under the Peace Treaty and nothing more,Footnote ¹² leaving the issue for settlement at a later stage.Footnote ¹³ In 1952, the Republic of Korea, however, decided to take matters into its own hands by the then South Korea President, Lee Seung-man, proclaiming the Peace Line to incorporate the islets within the Korean side of the border.Footnote ¹⁴

B. Diaoyu/Senkaku Islands Dispute (the PRC and Taiwan v. Japan)

The Diaoyu/Senkaku Islands comprise five small volcanic islands and three outcroppings with a total land area of 7 square kilometres, which are located approximately 170 kilometres northwest of Taiwan and 410 kilometres west of Okinawa, Japan. Commentators observe that the islands were discovered by the Chinese in 1372 and since then have been used by them sporadically for different purposes.Footnote ¹⁵ On the other hand, Japan claims that the islands were formally incorporated into Okinawa Prefecture through an 1895 Cabinet decision following a decade long survey of the islands that found the islands to be terra nullius.Footnote ¹⁶ The decision was made during the Sino-Japanese War, which ended in April 1895 with the conclusion of the 1895 Shimonoseki Peace Treaty, which did not specifically refer to the Diaoyu/Senkaku Islands as part of the Formosa Islands or Pescadores Group ceded to Japan.Footnote ¹⁷

Article 2(b) of the 1951 Peace Treaty provides that Japan renounced Taiwan and the Pescadores, whilst under Article 3 the Nansei Shoto Islands were placed under US administrative authority. However, there is no specific reference to the Diaoyu/Senkaku Islands in either of the provisions, leaving the legal status of the islands under the Peace Treaty indeterminate. The fact that the PRC was not a party to the Peace Treaty raises an additional legal question as to whether the territorial disposition under the Peace Treaty has any legal effect or is opposable by the PRC.Footnote ¹⁸

The PRC and Japan have been engaging in bilateral negotiations for the purpose of overall East China Sea maritime boundary delimitation between the two countries, based on the understanding that the Diaoyu/Senkaku Islands issue should not affect the boundary.Footnote ¹⁹ Nevertheless, in September 2012 the PRC lodged with the United Nations (UN) an official announcement of the base points and baselines for the territorial sea of the Diaoyu Islands.Footnote ²⁰ In December 2012, the PRC also submitted a partial submission on its continental shelf claims in the East China Sea to the Commission on the Limits of the Continental Shelf. China's submission asserts that geomorphological and geological features demonstrate that the natural prolongation of its continental shelf in the East China Sea extends to the edge of the Okinawa Trough.Footnote ²¹ This action brought about a response from Japan, which on 28 December 2012 lodged a Note Verbale with the UN Secretariat in New York, indicating that the Senkaku Islands are “an inherent part of Japan” and rejecting the PRC's reliance upon baselines generated adjacent to the islands as a basis for the submission to the Commission.Footnote ²²

C. South Kuril Islands/Hoppo Ryodo Dispute (Russia v. Japan)

This dispute concerns territorial title over a group of four islands—Etorofu, Kunashiri, Shikotan, and the Habomai islets—located at the southern end of the Kuril Islands chain which runs from Kamuchatka to the northeast of Hokkaido, Japan. The 1855 Treaty of Commerce, Navigation, and Delimitation between Japan and Russia confirmed that those islands fell within Japanese borders.Footnote ²³ The four islands remained under Japan's control until the Soviet Union took control by military force at and around the end of World War II.Footnote ²⁴

Under the 1951 Peace Treaty, Japan renounced all right, title, and claim to the Kuril Islands.Footnote ²⁵ However, the terms of the treaty do not clearly stipulate, first, which islands comprise the Kuril Islands, and second, which country is the territorial sovereign as a result of the legal disposition of those islands.Footnote ²⁶ The then Soviet Union's decision not to sign the Peace Treaty added complications to the territorial title to those islands, even if it may have been the intended beneficiary of the Japanese renunciation of the Kuril Islands.Footnote ²⁷

D. Paracel (Xisha) Islands Disputes (the PRC and Taiwan v. Vietnam)

The Paracel (Xisha) Islands comprise more than twenty islands, cays, atolls, reefs, banks, and shoals and are located approximately 400 kilometres east of central Vietnam and 350 kilometres southeast of Hainan Island of the PRC. The claim by the PRC and Taiwan over the islands is based on historic title over the entire four island groups including the Paracel Islands in the South China Sea.Footnote ²⁸ Vietnam, on the other hand, appears to consider that they discovered and subsequently occupied the islands when they were placed under a French protectorate.Footnote ²⁹ During the period of Japan's imperialism, the area was placed under Japan's occupation, but Japan renounced all the claims over the area in the 1951 Peace Treaty.Footnote ³⁰ Following the end of World War II, the islands became contested between the PRC and Vietnam until the PRC ultimately seized control of all the islands in 1974.

E. Spratly (Nansha) Islands Disputes (Brunei, Malaysia, the PRC, Taiwan, Vietnam, and the Philippines)

The Spratly (Nansha) Islands consist of 150 to 500 maritime features of various types (many of which are low-tide elevations), which spread over some 250,000 square kilometres south of the South China Sea. The PRC, Taiwan, Vietnam, the Philippines, Malaysia, and Brunei claim either all or part of these islands.

Both the PRC and Taiwan base their claims on discovery and historic usage. The PRC's early claim post-World War II in the South China Sea of a “Nine-Dash Line” appears to indicate an assertion of sovereignty over the entire South China Sea. However, the exact legal basis for such a line has remained unclear, as is whether the claim only concerns territorial title over the islands and sovereign rights to the associated maritime zones according to the current rules of international law or extends to all the maritime areas within the Nine-Dash Line.Footnote ³¹ Valencia observes that the ambiguity with its claim is a deliberate decision as “China has realised that once it specifies its claim, it will have to defend it in the context of current international law, and that a claim to most of the South China Sea as historic waters will be very difficult to defend”.Footnote ³²

As with the Paracel Islands, Vietnam bases its claim over most of the Spratly Islands on the discovery and subsequent occupation during the period of French protectorate.Footnote ³³ The Philippines claims almost the entire region, which they call Kalayaan, on the grounds that it is vital to the state's security and economic survival, that they “re-discovered” the islands after any claims by other states had been abandoned, or alternatively that they have established prescriptive acquisition through effective and continuous control over the islands.Footnote ³⁴

Malaysia's and Brunei's claim to a much smaller number of land outcroppings is closely associated with their maritime entitlements under the law of the sea. Malaysia claims those maritime features by virtue of their location within their exclusive economic zone (EEZ) and continental shelf.Footnote ³⁵ Brunei, on the other hand, argues that its entitlement to a 200 nautical mile EEZ cuts across the south of the Spratly Islands.Footnote ³⁶

A. The First Branch of Inter-temporal Law

As was shown in Part I, many of the states involved in territorial disputes in the region base their territorial claim, at least partially, on historic title. The fact that states attempt to gather more historical evidence in order to support their claim indicates the significance East Asian states appear to have attached to the first branch of inter-temporal law as the legal basis for territorial title. However, the application of this rule in the historical context of East Asia raises a particular concern that Japan's occupation of Dokdo/Takeshima and the Diaoyu/Senkaku Islands pre-World War II would be considered a valid exercise of sovereign power to acquire territory because forcible annexation or conquest based on aggressive imperialism was lawful at that time,Footnote ⁴² even though it is clearly prohibited under the current rules of international law.Footnote ⁴³

Indeed, in Cameroon v. Nigeria, where the contemporary validity of a colonial protectorate under the 1884 Treaty of Protection was discussed, the International Court of Justice (ICJ) observed that “[e]ven if this mode of acquisition does not reflect current international law, the principle of intertemporal law requires that the legal consequences of the treaties concluded at that time in the Niger delta be given effect today”.Footnote ⁴⁴ This observation clearly suggests that international law can be considered pro-colonial to the extent that because of the operation of inter-temporal law, it is incapable of invalidating sovereign acts of colonialism and imperialism in the past. Reflective of this view, Castellino and Allen argue that the first branch of inter-temporal law has been used to legitimize “blind acceptance of past manipulations of a legal system that was created by, dominated by and imposed by imperial states upon the rest of the world”.Footnote ⁴⁵

Even if that is so, before drawing any conclusion, it must first be ascertained what the quality of the juridical act at issue was in the light of the totality of the law that existed at the relevant time. Judge Al-Khasawneh rightly pointed this out in his dissenting judgment in Cameroon v. Nigeria, arguing that the law contemporary with the legal act should be read against the background of the concept of protection that existed at that time, not as understood later in the colonial age.Footnote ⁴⁶ Accordingly, it is imperative to ascertain whether, during the period of Japan's imperialism, annexation or conquest was truly considered valid and whether there was any requirement for establishing a valid territorial title thereupon. This is a view supported by Jennings and Watts in the ninth edition of Oppenheim's International Law, in which they observed that though conquest or subjugation is now “obsolescent”, “it is still necessary to briefly describe its legal limitations, if only because a root of title is to be judged by the law as it was when the relevant facts arose. Were it otherwise, ancient and otherwise stable titles might even be open to question.”Footnote ⁴⁷ Even in the nineteenth to early twentieth centuries, when prohibitions on the use of the force in the conduct of international relations had not become widely recognized, mere conquest was generally not considered to render a legal title under international law.Footnote ⁴⁸ For example, in US v. Hayward, dealing with the legal status of Castine, Maine, conquered by British forces, the Circuit Court of Massachusetts observed that “[i]t could only be by a renunciation in a treaty of peace, or by possession so long and permanent, as should afford conclusive proof, that the territory was altogether abandoned by its sovereign, or had been irretrievably subdued, that it could be considered as incorporated into the dominions of the British sovereign”.Footnote ⁴⁹ Therefore a mere act of conquest pre-World War II was insufficient to render a legal title, necessarily requiring the perfection of title in accordance with the second branch of inter-temporal law, as will be discussed below.

Another decision that illuminated the significance of examining the quality of juridical acts in the light of the totality of the law that existed at the relevant time is found in the ICJ's advisory opinion in Western Sahara.Footnote ⁵⁰ In examining the question as to whether Western Sahara was terra nullius at the time of colonization by Spain, the Court started from the premise that it had to be interpreted “by reference to the law in force at that period”.Footnote ⁵¹ Despite the prevailing view to the contrary,Footnote ⁵² the Court interpreted the notion of terra nullius to exclude territories inhabited by tribes or people having a social and political organization, having regard to the practice of states effecting territorial title through agreements concluded with local rulers.Footnote ⁵³ Territorial claims by East Asian states are partly based on occupation of terra nullius. However, it has to be carefully considered, to begin with, whether the notion of terra nullius as discussed in Western Sahara indeed applies to remote, uninhabited islands in the East China Sea and South China Sea, and second, even if it does, under what circumstances those remote, uninhabitable islands could have been considered terra nullius open to acquisition through the legal process of occupation as existed at the relevant time.

Critical to historic title claims advanced or disputed by East Asian states is the clarification as to what was required to effect occupation of remote, unsettled islands at the relevant time of the original acquisition claimed by regional states. In Eastern Greenland, the Permanent Court of International Justice (PCIJ) applied the law of occupation based on continued display of authority by requiring the will to act as sovereign and actual display of such authority, whilst accepting that very little might be needed in the way of the actual exercise of sovereign rights, especially in the case of claims to sovereignty over areas in thinly populated or unsettled areas.Footnote ⁵⁴ Yet, prior to that decision, the law was in the process of evolution led by European states competing against each other for territorial title over new frontiers.Footnote ⁵⁵ In this respect, Crawford has urged “care in applying the rule”, observing that the inter-temporal principle does not operate in “a vacuum”.Footnote ⁵⁶

Indeed, from the Chinese perspective, there may not have been a clear-cut notion of territorial title by one sovereign, for they developed their own way of demarcating legitimate political space and marine space in relation to neighbouring states through a Sinocentric world order by networking through their investiture-tributary system.Footnote ⁵⁷ This raises several pivotal issues when assessing this question in the East Asian context. Could there have been such a feudal basis of establishing a territorial claim over remote islands in East Asia? Could there have been a rule of “regional customary international law” that was considered effective enough to prevent other states from occupying islands through other than the investiture-tributary system, even where no or little evidence of habitation was found? In answering these questions, it would become necessary to re-evaluate the state of the law of occupation in relation to historic title claims by reference to the practice of regional states during the relevant period of time.Footnote ⁵⁸

B. The Second Branch of Inter-temporal Law

Based on the understanding that the creation of rights must be distinguished from the existence of rights, international courts and tribunals have tended to give greater weight to effective and continuous display of sovereignty (effectivités) in the modern era, over tenuous historical evidence.Footnote ⁵⁹ The ICJ certainly did so in two recent territorial dispute cases dealing with islands in East Asia—the islands of Pulau Ligitan and Pulau Sipadan between Malaysia and Indonesia,Footnote ⁶⁰ and the island of Pedra Branca/Pulau Batu Puteh between Malaysia and Singapore.Footnote ⁶¹ This raises a serious concern on the part of states which do not currently exercise effective control over disputed islands and those which can only rely on historic title.

First of all, it must be understood that the application of this second branch of inter-temporal law is not as straightforward as simply awarding territorial title to those exercising effective control in the modern era. According to Huber in Island of Palmas, discovery alone only creates an “inchoate title”, which “must be completed within a reasonable period by the effective occupation of the region claimed to be discovered”.Footnote ⁶² However, when the original title was established by one of the recognized modes of territorial acquisition, Elias has observed that it would be “impossible for a subsequent possessor of the territory concerned to establish a valid title unless there was sound evidence of abandonment by the original acquirer”.Footnote ⁶³ When the validity of subsequent prescriptive acquisition through exercising effective control is disputed, the ICJ has made it clear that preference will be given to a previously established title over effectivités.Footnote ⁶⁴ It is more often than not the absence of effective protests by the other party that has influenced the outcome of adjudication in favour of the state in control of the disputed area.Footnote ⁶⁵

Second, due consideration must be given to the fact that, whilst territorial title cases in the past mainly involved disputes between former colonial powers or between former colonies (and therefore the disputes concerned territorial delimitation rather than acquisition),Footnote ⁶⁶ the Dokdo/Takeshima and Diaoyu/Senkaku Islands disputes have arisen between a former colonial power and its former colony. This different context in which territorial title claims are to be addressed may well itself require revisiting the relevant jurisprudence developed by international courts and tribunals that focuses on the demonstration of effectivités, when sovereign control has been exercised as a result of colonialism or imperialism.Footnote ⁶⁷ By operation of the second branch of inter-temporal law, the act of annexation or conquest is not only assessed in the light of the law in force at the time of the act, but has to be assessed again in accordance with the rules of modern international law.Footnote ⁶⁸ In the East Asian context, the 1951 Peace Treaty deprived Japan of all of its territorial title claims as a result of its expansionist policy. Yet, the critical question remains as to how Japan's alleged occupation of disputed islands, which took place during the period of expansionist imperialism, is to be characterized.

Third, international courts and tribunals have recognized the relevance of historic title even in the context of contemporary territorial disputes. In Eritrea v. Yemen, the Arbitral Tribunal acknowledged “a problem of the sheer anachronism of attempting to attribute to such a tribal, mountain and Muslim medieval society the modern Western concept of a sovereign title”.Footnote ⁶⁹ Although difficulties with the establishment of historical facts prevented the Tribunal from accepting the claim, it indicated its willingness to accept a historic title if its juridical existence was proven.Footnote ⁷⁰ In Fisheries Case, although in a different legal context concerning the ability to assert baselines rather than territorial title, the ICJ endorsed the Norwegian claim of a historical consolidation by stating that “it is indeed this [well-defined and uniform] system itself which would reap the benefit of general toleration, the basis of an historical consolidation which would make it enforceable as against all States”.Footnote ⁷¹ This concept of historical consolidation is arguably applied to show a good root of title to territory.Footnote ⁷²

C. Re-Evaluating the Role of the Critical Date

Sovereign acts to display state control and authority can only be taken into account up to the date when the dispute was considered to have “crystallized”.Footnote ⁷³ This temporal rule was developed as an evidential rule to render, in principle, inadmissible any subsequent action taken with the aim to buttress claims. It is designed “to prevent one of the parties from unilaterally improving its position by means of some step taken after the issue has been definitely joined”.Footnote ⁷⁴ Thus, the critical date plays a crucial role in facilitating peaceful settlement of territorial disputes by keeping them separate from military or political confrontation that might otherwise result from the efforts to strengthen respective legal claims.

However, there is some ambiguity in the determination of the critical date in the practice of international courts and tribunals. In Island of Palmas, the critical date was found when the cession of the Philippines by Spain took place by the 1898 Treaty of Paris,Footnote ⁷⁵ whereas in Eastern Greenland it was the date when Norway proclaimed its sovereignty over the disputed area.Footnote ⁷⁶ In Minquiers and Ecrehos, on the other hand, the ICJ did not make any formal determination of a critical date.Footnote ⁷⁷ The Arbitral Tribunal in the Argentine-Chile Frontier Case even considered “the notion of the critical date to be of little value”, and examined all the evidence submitted to it.Footnote ⁷⁸ Recent adjudications by the ICJ appear to have become more consistent in the finding of the critical date when the parties started asserting conflicting territorial claims,Footnote ⁷⁹ though Crawford has observed that “the facts of the case are dominant … and there may be no necessity for a tribunal to choose any date whatsoever”.Footnote ⁸⁰ Such vagueness and arbitrariness in the determination of a critical date in the past has led at least one eminent commentator to observe, in relation to the Dokdo/Takeshima dispute, that “[t]he physical occupation of the islets by the Republic of Korea during the past half century is likely to be a significant factor”, since “a tribunal would probably decline to identify a specific ‘critical date’”.Footnote ⁸¹

The vagueness or, in some views, arbitrariness, of the criteria for the determination of a critical date means that the doctrine is impracticable in setting an objective “cut-off” date in the absence of a prospect for a third-party adjudication. As a result, the law continues to provide a strong incentive to keep strengthening respective legal positions by resorting to various means of effective and continuous display of sovereignty (because of the emphasis and reliance on effectivités in recent judicial settlements), or if the state does not currently exercise effective control over the disputed area, to protest against each sovereign act committed by the other party to the dispute (because omission would otherwise be considered acquiescence).Footnote ⁸² Even though diplomatic protests were found sufficient in Chamizal, where more forceful measures would have provoked scenes of violence,Footnote ⁸³ no uniform standard has yet to be set by international courts and tribunals with divergent views among commentators.Footnote ⁸⁴ The current rules of international law concerning territorial title, and particularly ambiguities of those rules such as the critical date and effective protests, thus have the effect of fuelling tension between disputing states, as has been illuminated in the recent rise in hostility between regional states in East Asia.

D. Inter-temporal Law and Imperialism in East Asian History

The operation of inter-temporal law has been criticized not only for its application to territorial title under international law but more broadly, particularly when it is applied to disputes stemming from past colonial control.Footnote ⁸⁵ The consequences of colonialism cannot be reversed and remain an integral part of and an inherent reflex within contemporary international law.Footnote ⁸⁶ The principle of inter-temporal law, and the rules associated with it concerning territorial title such as the notion of terra nullius and the emphasis on the effective and continuous display of sovereignty, is reflective of colonial pasts being projected into the present, with legal consequences such as providing a foundation for contemporary territorial sovereignty under international law. This colonial foundation of international law has arguably resulted, from time to time, in controversial judicial determinations of territorial title and delimitation, as evidenced by the critiques of ICJ Judgments in Kasikili/Sedudu Island and Cameroon v. Nigeria.Footnote ⁸⁷

Dakas considers that Japan's claim that Dokdo was terra nullius resembles the tactics employed by European states in the colonization of Africa and argues that “Japan is not at liberty to invoke international law norms that predominated in the colonial era and in respect of which the Republic of Korea could not, on account of its colonial status, make any meaningful input in its formation or crystallization”.Footnote ⁸⁸ However, there are important differences to be noted from the preceding analysis between territorial issues in Africa and in East Asia. First, African territorial issues predominantly arise between former colonies, whereas in East Asia territorial titles are mainly disputed between a former colonial power and its former colony or, in the case of South China Sea disputes, an Asian regional power and former European colonies. Second, African territorial issues involve the colonization of inhabited territories, whereas contemporary East Asian territorial disputes are over uninhabited islands. Third, unlike European countries, Japan was no more influential than colonized states in terms of the level of contribution to the formation and crystallization of international law.Footnote ⁸⁹ It cannot therefore be concluded that the traditional rules of international law are inherently prejudicial against formerly colonized states and therefore unjust in determining territorial title over disputed islands in East Asia, by simply drawing on the experiences in African territorial disputes.

Nevertheless, the fact that some East Asian territorial disputes uniquely involve competing claims between a former colonial power and its former colonies may legitimately pose the question as to, in the words of Seokwoo Lee, “whether claims of sovereignty in Asia can be judged by norms developed in Europe, particularly since the general understanding of how to establish a valid claim to territory has been established through decisions and awards by international judicial and arbitral bodies many centuries earlier”.Footnote ⁹⁰ There is nothing new about the idea that Asia has its own unique approach or approaches to international law. Illustrative is the idea of “Asian values” as the antithesis of universal human rights in the 1990s, which claims that human rights as propounded in European ideologies are founded on individualism and are therefore inappropriate in Asia, where primacy is given to the community and communal action.Footnote ⁹¹ Although the “Asian values” debate lost its force towards the end of the century, developments initiated during the same period laid the foundation for institution-building for Asian approaches to the promotion and protection of human rights in the region.Footnote ⁹²

As discussed above, however, the principle of inter-temporal law can operate to accommodate historical contexts in an equitable manner so as to ensure that the determination of territorial title by international courts and tribunals is fair and just in the view of judges and arbitrators without being influenced by the view of powerful states of the past or present. The first branch of inter-temporal law allows scope for re-evaluating the law of occupation in relation to historic titles by reference to the practice of regional states that governed territorial relations in the region at the relevant period. The second branch of inter-temporal law has been developed with great care so as not to encroach upon original sovereign title, by rejecting historical claims only when there was an obvious failure to lodge effective protests against the subsequent occupier or when historical documents were insufficient to prove juridical existence of the legal claim, whilst effectively denying any enduring legal effect of colonial occupation. As Anghie observes, “[j]urists and courts attempting to reverse the effects of these laws must do so within the established framework of these [international law] doctrines”.Footnote ⁹³ Even though it is difficult to challenge the validity of existing principles and doctrines themselves, there is sufficient scope for accommodating the peculiar historical contexts of East Asia within the established legal framework.

A. Increased Significance of Maritime Claims for East Asian States

As to which maritime zones are the most relevant in East Asia, it is predominantly the broader zones of the continental shelf and the exclusive economic zone. The territorial sea up to 12 nautical miles in breadth,Footnote ⁹⁹ and the contiguous zone at 24 nautical miles in breadth,Footnote ¹⁰⁰ while of immense significance for coastal states, are predominantly contested where coastal states share land boundaries that terminate at the coast, or in the case of confined maritime spaces where land territories including islands are closely co-located. In the South China Sea disputes, subject to how the territorial disputes in the Paracel Islands and in the Spratly Islands are settled, there could be a need to delimit such boundaries as a result of neighbouring states having overlapping claims to a territorial sea or contiguous zone.Footnote ¹⁰¹ Ultimately, however, the continental shelf and EEZ are of greater significance as they provide a coastal state with extensive maritime resource rights beyond the territorial sea to a minimum limit of 200 nautical miles.Footnote ¹⁰² In this respect the extent of a coastal state's sovereignty and jurisdiction over these maritime zones is pivotal to an appreciation of the potential significance of such claims being asserted and recognized throughout East Asia.

The continental shelf regime gives a coastal state the capacity to exercise sovereign rights over that area of the seabed and the subsoil for the purpose of “exploring and exploiting its natural resources”.Footnote ¹⁰³ While the distinction between sovereign rights and sovereignty is important, and is a major distinguishing feature of the continental shelf compared to the territorial sea, these rights are nonetheless very extensive with respect to non-living resources located in the continental shelf, especially oil and gas.Footnote ¹⁰⁴ The EEZ, which is conterminous with the continental shelf up to 200 nautical miles, also confers rights over natural resources but extends to both living and non-living resources and includes the water column of the area in addition to the seabed and the subsoil.Footnote ¹⁰⁵ While the EEZ and continental shelf therefore overlap, the EEZ does provide a coastal state with distinctive rights with respect to living resources within that area, which for East Asian states confer important rights with respect to the exploitation, management, and conservation of fish stocks.Footnote ¹⁰⁶

A final observation that can be made as to the extent of these maritime zones is that Article 76 of the LOSC creates a juridical definition of the continental shelf which confers upon all coastal states a minimum entitlement of a 200 nautical mile continental shelf irrespective of whether the continental shelf extends that far.Footnote ¹⁰⁷ In addition, and in recognition that in some instances the continental shelf may extend well beyond a 200 nautical mile limit, Article 76 permits coastal states to assert a continental shelf claim beyond 200 nautical miles providing certain criteria have been met and the claim is one that has been assessed by the Commission on the Limits of the Continental Shelf (CLCS). The Commission, which is a technical body and does not comprise lawyers, reviews data submitted by coastal states in support of their claims to an extended continental shelf. Following recommendations made by the CLCS, the coastal state is able to make a final claim to a continental shelf beyond 200 nautical miles.Footnote ¹⁰⁸

Given the relatively small size of many of the contested maritime features in East Asia, other than the national prestige that is associated with territory and the nationalism associated with confirming title to territory that has been in long-standing dispute, it can be observed that a significant aspect associated with the current East Asian maritime disputes is the perceived maritime resource rights that these islands generate under the LOSC.Footnote ¹⁰⁹ This has been particularly highlighted by recent submissions to the CLCS which, due to submission deadlines set under the LOSC framework, have in recent years seen a number of East Asian coastal states making their CLCS submissions. These submissions, in turn, have brought about responses from neighbouring states in which territorial disputes have been highlighted. Submissions made up to the end of 2012 which fall into this category include the joint submission by Malaysia and Vietnam (2009),Footnote ¹¹⁰ Vietnam's individual submission (2009),Footnote ¹¹¹ and the PRC's submission (2012),Footnote ¹¹² each of which has brought about diplomatic communications by way of Note Verbales from states opposing aspects of these submissions as they relate to disputed territory. In that regard, the Rules of Procedure of the CLCS provide that in the case of a territorial dispute coming to the attention of the Commission, it shall set aside its consideration of that aspect of the submission until such time as the dispute has been settled.Footnote ¹¹³

B. Disputes Concerning the Legal Status of Maritime Features

A central aspect of the LOSC is that is confers entitlements to assert a claim over a maritime zone to a “coastal State”.Footnote ¹¹⁴ While the term “coastal State” is not defined in the LOSC, it is taken to refer to any state that has a territorial entitlement which encompasses a sea coast.Footnote ¹¹⁵ This extends not only to continental states, but also to island states, including those that are properly characterized as archipelagos, such as Japan and the Philippines.Footnote ¹¹⁶ Problematic issues arise with respect to maritime features claimed by coastal states, including those that have been subject to territorial claim or which are encompassed within territorial claims, and the capacity of those features to generate maritime zones. These features will range in size from islands, as properly defined, through the whole gamut of associated maritime features including atolls, cays, islets, rocks, banks, shoals, and reefs. The status of these features, and their capacity to generate maritime zones, can be contentious, and this is certainly the case with respect to such features in East Asia that are at the centre of land and maritime disputes.

In the case of islands, Part VIII of the LOSC details a so-called “Regime of Islands” which contains provisions of considerable significance in the East Asian context. Article 121 in particular is relevant for a number of reasons. First, Article 121(1) defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide”, which can be referred to as Article 121(1) islands. An artificial island does not therefore meet the criteria, nor does an area of land not above water at high tide, which may in other respects meet the criteria of a low-tide elevation.Footnote ¹¹⁷ Rocks, shoals, or reefs which may be visible at low tide are therefore not islands for the purposes of the LOSC. The importance of Article 121(1) islands under the LOSC is that they generate the complete range of maritime zones. A small island is therefore capable of generating a continental shelf or EEZ that may be many times the size of the island's land dimensions and considerably more economically valuable in terms of living and non-living natural resources.Footnote ¹¹⁸

The only exception to this entitlement is the case of islands that may be characterized as rocks, even though they may be above water at high tide. Rocks which “cannot sustain human habitation or an economic life of their own” do not enjoy an entitlement to a continental shelf or an EEZ,Footnote ¹¹⁹ but will still nonetheless enjoy a territorial sea and contiguous zone. These maritime features can be referred to as Article 121(3) rocks. Perhaps the most prominent of these features is Rockall, which is a UK claimed rock in the Atlantic Ocean to the north of Scotland, which the UK has conceded does not generate its own continental shelf or EEZ.Footnote ¹²⁰ The status of Japan's claim to an extended continental shelf offshore Okinotori Shima Island, as identified in its 2008 CLCS submission, has highlighted these issues for East Asian states and has been a matter of contention for Japan and its neighbours.Footnote ¹²¹ Unsurprisingly, these provisions have generated some analysis and consideration amongst commentators and international courts as to the distinction between islands and rocks and the differential entitlements they enjoy to maritime zones.Footnote ¹²² For example, in Monte Confurco Footnote ¹²³ and Volga Footnote ¹²⁴ before the International Tribunal for the Law of the Sea (ITLOS), Judge Vukas expressed a view that the sub-Antarctic Kerguelan Islands (France) and the Heard and McDonald Islands (Australia) in the Southern Ocean were not islands from which the coastal states were entitled to claim EEZs consistent with the LOSC. In the case of the two Australian islands, Judge Vukas gave particular importance to the fact that the islands were uninhabited. However, such a view regarding sub-Antarctic islands,Footnote ¹²⁵ which considers that the distinction between an Article 121(1) island and an Article 121(3) rock turns on whether the maritime feature is inhabited or is capable of habitation has not found wider support in ITLOS or other international courts. It can therefore be observed that naturally formed islands, properly characterized as such and distinguished from Article 121(3) rocks, and not ones that have been subject to the installation of manmade structures which are built upon low-tide elevations and features so that they sit above water at high tide for human habitation, do generate an entitlement to all LOSC maritime zones. It would appear that whether such islands are inhabited or not would not be determinative as to their capacity to generate an EEZ or continental shelf, though it may highlight issues associated with the island's size and whether it is capable of sustaining human habitation.Footnote ¹²⁶

A further category of maritime feature referred to in the LOSC is a “low-tide elevation”, which is defined as “a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide”.Footnote ¹²⁷ Low-tide elevations can be distinguished from Article 121(3) rocks in that they are not subject to appropriation other than when they fall within the territorial sea limits of the coastal state and are otherwise not to be equated with land territory.Footnote ¹²⁸ Therefore, low-tide elevations do not generate a territorial sea when located beyond the breadth of the territorial sea from the mainland or an island. Otherwise low-tide elevations may be used as a basepoint for the baseline in delineating the breadth of the territorial sea and other maritime zones, and to that end may prove useful in determining the outer limits of a maritime zone, or for the purposes of maritime boundary delimitation.

Presently there is no agreement between the parties as to whether the Diaoyu/Senkaku Islands are capable of being a basis for EEZ or continental shelf claims. Commentators have reported that the PRC and Taiwan consider the islands to be uninhabitable and incapable of generating maritime zones, whilst Japan adopts the converse position.Footnote ¹²⁹ A similar disagreement may potentially arise in relation to the Dokdo/Takeshima Islands as, while many commentators consider those islets to be Article 121(3) rocks, Japan has tended to adopt a wider interpretation as to what constitutes a habitable island capable of generating maritime claims.Footnote ¹³⁰ Likewise, these issues also exist in the South China Sea, where distinguishing between Article 121(1) islands, Article 121(3) rocks, and low-tide elevations is of greater significance because of the much greater number of maritime features that are in dispute, and the efforts made by some of the disputing states to build structures such as platforms, lighthouses, and small dwellings on these features in an effort to sustain their territorial claims, and the capacity of those maritime features to be characterized as Article 121(1) islands.Footnote ¹³¹

C. Maritime Boundary Delimitation

The final law of the sea issue of significance relates to how maritime boundaries may be determined following confirmation of territorial sovereignty over islands and associated maritime features and whether they are capable of generating the full suite of maritime zones. It can first be observed that the law of maritime boundary delimitation is very well developed, with Articles 73 and 84 of the LOSC providing a legal framework within which coastal states can seek to delimit their overlapping boundaries by negotiation, or within which international courts and tribunals can apply developed legal principles to bring about their resolution.Footnote ¹³²

The second observation is that the majority of the East Asian islands currently the subject of dispute are generally small in size, either uninhabited or with very small permanent or itinerant populations, and are at some distance from either continental Asia or major island systems in the case of Japan, the Philippines, and East Malaysia. International courts and tribunals have traditionally been conscious of the potential distorting effects that islands have on maritime boundaries, especially if those islands are granted their full entitlement to extensive maritime zones such as a continental shelf or EEZ, and a number of judicial techniques have been applied to address this problem. These approaches include giving “half effect” to such islands,Footnote ¹³³ creating a territorial sea enclave around the islands, or adjusting a maritime boundary so that the general direction of the boundary line is subject to only minor modification where islands straddle a maritime boundary. In this respect, the size of the island, including its permanent population, and its historical or economic significance, are factors that may be taken into account, though each case will often highlight a unique combination of factors. There are also examples in state practice where small, sparsely inhabited islands which are located very close to the mainland of another state have been given minimal effect in negotiated maritime boundaries settled by way of treaty.Footnote ¹³⁴

This significance of ensuring that small islands do not have a distorting impact upon a maritime boundary is further reinforced in the LOSC, which makes clear that the delimitation of these maritime zones is to achieve an “equitable outcome”,Footnote ¹³⁵ as reflected in recent ICJ decisions.Footnote ¹³⁶ In Nicaragua v. Colombia, for example, notwithstanding the Court finding in Colombia's favour with respect to its sovereignty over several small islands and maritime features, many of these features were given diminished or no effect when it came to delimiting the continental shelf/EEZ boundary between Colombia and Nicaragua.Footnote ¹³⁷ Of particular note was the manner in which the Court dealt with low-tide elevations within the territorial sea, or particularly small maritime features that were above water at high tide, disregarding them for the purposes of constructing a provisional and an adjusted equidistance boundary line.Footnote ¹³⁸ Also of significance was the distinction between the coastal fronts of Nicaragua and Colombia, with the relevant coasts being 531 km (Nicaragua) and 65 km (Colombia), with a ratio of approximately 1:8.2.Footnote ¹³⁹ This was despite the fact that the Court took into account the coasts of all the Colombian islands within the relevant part of the Caribbean Sea. This substantial disparity was a factor taken into account by the Court when it adjusted the provisional boundary line that it had drawn, which was to Nicaragua's benefit.Footnote ¹⁴⁰

State practice and the jurisprudence of international courts and tribunals in interpreting the LOSC would therefore suggest that even if territorial sovereignty was conclusively settled over islands and associated maritime features in East Asia that are currently the subject of dispute, there is every likelihood that the ability of these features to generate vast maritime claims would be compromised. This would be either because these features are not Article 121(1) islands, and as Article 121 (3) rocks would generate only a territorial sea and contiguous zone, or because they would have a distorting impact upon the maritime boundaries based upon competing maritime claims from continental or island land masses whose status is not in dispute.