FRONTIERS OF LAW IN CHINA

VOL. 9 MARCH 2014 NO. 1

DOI 10.3868/s050-003-014-0004-1

THE LEGAL STATUS OF SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME

DELIMITATION — THE CASE OF THE DIAOYU ISLANDS
Steel Rometius∗

Sovereignty-disputed islands have special effect on maritime delimitations, whereas

positive international law has no regulation on such matters. The legal status of
sovereignty-disputed islands on maritime delimitation fall into three categories: full
status, partial status and zero status. Full and partial status suggest the cases in which
the sovereignty of the islands can be decided un-ambiguously in legal terms, while zero
status means the circumstances to which islands under sovereignty dispute are not
clearly subject to legal adjudication. Partial and zero status are commonly seen in
international cases. The willingness of the disputed parties to a considerable extent
defines the relevance of the legal status. Natural circumstances of islands affect not only
the nature of the disputed islands and their legal status, but also the willingness of
parties greatly. Geographic position of islands may lead to different legal status and
affect the willingness of parties. The principle of equity is supposed to play an important
role in the determination of legal status of disputed islands. In the case of the Diaoyu
Islands for instance, if sovereignty issue can be decided in legal terms, then some extent
of partial or full status will take place in the maritime delimitation of East China Sea; if
sovereignty issue cannot be decided in legal terms, then only zero status can be granted.
“Putting aside disputes and developing jointly” should not be treated as the preferred
option and should be transited to certain real dispute resolution such as delimitation
agreements or judicial judgments.

INTRODUCTION ....................................................................................................................... 66
I. REGULATIONS OF INTERNATIONAL LAW ON THE LEGAL STATUS OF
SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION ............................... 66
II. CATEGORIES OF LEGAL STATUS OF SOVEREIGNTY-DISPUTED ISLANDS
AND A SURVEY TO THEIR APPLICATION ..................................................................... 68
A. Full Status............................................................................................................. 68
B. Partial Status ........................................................................................................ 69
C. Zero Status............................................................................................................ 70
III. CONDITIONS FOR GRANTING DIFFERENT LEGAL STATUS TO
SOVEREIGNTY-DISPUTED ISLANDS .......................................................................... 72
A. Willingness of the Parties ..................................................................................... 72

∗
(罗国强) Ph.D and Associate Professor in international law, at the Institute of International Law, Wuhan
University, Wuhan 430072, China. This paper is supported by the MOE Project of Key Research Institute of
Humanities and Social Sciences at Universities. Contact: steel@whu.edu.cn
66 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

B. Natural Circumstance of the Islands .................................................................... 73

C. Geographic Position of Islands............................................................................ 75
1. Coastal Islands ................................................................................................ 75
2. Offshore Islands .............................................................................................. 75
3. Outlying Islands .............................................................................................. 76
4. Median Zone Islands ....................................................................................... 76
5. Detached Islands ............................................................................................. 76
D. Equity Principle .................................................................................................. 77
IV. LEGAL EFFECT OF DIAOYU ISLANDS AS SOVEREIGNTY-DISPUTED ISLANDS ........... 78
CONCLUSION........................................................................................................................... 81

INTRODUCTION
Today in various maritime delimitation disputes, there might be no such issue as the
legal status of islands that have drawn so much attention from scholars.1 It is estimated
that in the current world, there are still about 20 sovereignty-disputed islands, including
the Diaoyu Islands that lie at the center of the maritime delimitation.2 Surely, as long as
agreement might be reached, the disputed State Parties can settle maritime delimitation
issues as well as island sovereignty issues simultaneously, and they can also settle the
former first and leave the latter unsettled. Nevertheless, such a sovereignty-disputed
status, will surely affect the legal status of islands in the delimitation. Therefore,
determining the legal status of sovereignty-disputed islands in maritime delimitation,
which has not been specially discussed by scholars, is an important issue in international
law. And so, I try to discuss this issue in four steps: First, introducing the current stipulation
of international law on such matters; second, analyzing the categories of the legal status
of sovereignty-disputed islands and make a survey on the situation of applications; third,
explaining the conditions for granting different legal status to sovereignty-disputed islands;
last, analyzing the legal status of the Diaoyu Islands as sovereignty-disputed islands.

I. REGULATIONS OF INTERNATIONAL LAW ON THE LEGAL STATUS OF

SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION
In order to discuss this subject, we need to check the current positive international law
to see whether it grants certain legal status to sovereignty-disputed islands in maritime
delimitation and if yes, what kind of legal status will be granted.
In 1953, the UN International Law Commission (ILC) invited a panel to make some
advices on the legal status of islands in maritime delimitation. ILC proposed “median

1
See Nuno Sergio Marques Antunes, Towards the Conceptualisation of Maritime Delimitation: Legal
and Technical Aspects of Political Process, Martinus Nijhoff Publishers (Leiden), at 293 (2003).
2
See Victor Presscott & Clive Schofield, The Maritime Political Boundaries of the World, 2nd edition,
Martinus Nijhoff Publishers (Leiden), at 265–84 (2005).
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 67

line” as the principle of delimitation and “special circumstances” as exceptions to the

principle, and the panel pointed out that all the islands should be taken into consideration
in the drawing of median line unless States agreed to exclude some.3 However, this
advice was not accepted. Then in Article 12(1) of the 1958 Geneva Convention on
Territorial Sea and Contiguous Zone and Article 6 of the Convention on Continental Shelf,
although “special circumstances” was mentioned, yet whether islands belong to “special
circumstances” was not made clear.4
During the Third United Nations Conference on the Law of the Sea, States disagreed
so sharply on the effects of islands in maritime delimitation that any compromise seems
to be impossible. So when the UN Convention on the Law of the Sea (UNCLOS) was
passed in 1982, this issue was neglected, instead, UNCLOS just give some rough
regulations on maritime delimitation in Articles 15, 74 and 83 — delimitation by
agreement on the basis of international law, and to achieve an equitable solution. No
wonder such regulations are in fact not only useless but also constitute an obstacle to the
settlement of maritime delimitation disputes, as they neither propose any specified
delimitation methods nor give a clear definition to the so-called “equitable solution.”5
In Article 121 of UNCOLS, regulations were made on what constitute an island, the
status of island, and reasons to downplay the significance attached to the status present as
such.6 But the problem is, such status remain only in theory and may not be subject to
practical solution. According to the provisions of UNCLOS, any island, no matter big or
small, shall have about 452 square nautical miles of Territory Sea (TS), about 125,664 square
nautical miles of Exclusive Economic Zone (EEZ) and Continental Shelf (CS), but in many
parts of the world there is simply no water space for such a claim, not to mention dividing
the waters between States! Moreover, above provisions neither make any clear difference
between “island” and “rock,” nor give any definition on the standard for the islands to

3
See International Law Commission Yearbook, at 79 (1953).
4
However, ILC said in its commentary that “special circumstances” include special coastal
geomorphology, islands and navigation channels. See International Law Commission Yearbook, at 300 (1956).
And international practices and precedents also show that islands constitute one of the important “special
circumstances.” See Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation,
Hart Publishing (Oxford), at 183 (2006); SHI Jiuyong ( 史久镛 ), The Wang Tieya Lecture in Public
International Law, Maritime Delimitation in the Jurisprudence of the International Court of Justice, 9
Chinese J. Int’l L. 280 (2010).
5
See Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, Hart
Publishing (Oxford), at 47 (2006); Dorinda G. Dallmeyer & Louis De Vorsry, JR. eds., Rights to Oceanic
Resources: Deciding and Drawing Maritime Boundaries, Martinus Nijhoff Publishers (Leiden), at 42 (1989).
6
(1) An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
(2) Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic
zone and the continental shelf of an island are determined in accordance with the provisions of this
Convention applicable to other land territory. (3) Rocks which cannot sustain human habitation or economic
life of their own shall have no exclusive economic zone or continental shelf.
68 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

“sustain human habitation or economic life of their own.” The UNCLOS just promised the
world a big cake,7 but failed to bring out a really big one, and even failed to give the world a
practical way to share or divide it. And the result is that more disputes happened.
Thus we can see, although the sovereignty-disputed islands surely have special legal
status that may significantly affect maritime delimitation, such affairs are not subject to
regulation by the UNCLOS; and, because it is difficult for the international society to reach
any general practice or opinion juris on such issues, the constitution of relative international
custom is also impossible. In a word, the current positive international law says nothing
about the legal status of sovereignty-disputed islands in maritime delimitation.

II. CATEGORIES OF LEGAL STATUS OF SOVEREIGNTY-DISPUTED ISLANDS

AND A SURVEY TO THEIR APPLICATION

If the parties want to settle the maritime delimitation disputes which involve
sovereignty-disputed islands, they may have two choices: One is international agreements;
the other is international adjudging or arbitration. Till now, most States choose the former;
only 3 cases were decided by ICJ or PCA.8
The legal status of sovereignty-disputed islands can be divided into three categories:
full status, partial status, zero status.9 And these categories have different conditions for
applicability.

A. Full Status
Full status means the island is treated to be a land and considered as base point in
maritime delimitation. If a State owns a full status island, then according to “the land
dominates the sea” principle, which was repeatedly practiced by ICJ,10 it can use this as a
base point and claim for TS, EEZ and CS to the utmost extent.

7
Although in its wording, UNCLOS use the expressions of “shall not extend beyond” certain nautical
miles, whose plain meaning is an outer limit instead of a minimum, yet to almost every State, they will treat
such a provision a chance to claim for the utmost extension of their maritime boundary.
8
For example, Eritrea-Yemen Arbitration, 1998/1999, PCA; Maritime Delimitation and Territorial
Questions between Qatar and Bahrain, ICJ, 2001; Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea, ICJ, 2007.
9
See John King Gamblr & Giulio Pontecorvo, Law of the Sea: the Emerging Regime of the Oceans,
University of Rhode Island, at 170–75 (1973); D.P. O’Connell, The International Law of the Sea, vol. II,
Clarendon Press (Alderley), at 719–20 (1984).
10
See North Sea Continental Shelf (Federal Republic of Germany v. Netherlands), ICJ Reports, at 51
(1969); Aegean Sea Continental Shelf Case (Greece v. Turkey), ICJ Report, at 36 (1978); Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, ICJ Reports, at
97 (2001); Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment of 8 October 2007, at 34; Case Concerning Maritime Delimitation in the
Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, at 33.
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 69

In theory, the utmost extent of TS, EEZ and CS is respectively 12,200 and 350 nautical
miles. However, in many parts of the world, such distance simply does not exist due to
geological limitation or geographical position.11 So the main feature of full status is not
whether the island can be extended to a presumed utmost extent or not, but that it can be
treated as a land in legal terms. Practically, as long as an island is treated as a base point and
its legal effect can be extended to the median line, then it has been granted full effect.
Obviously, to give full effect to a sovereignty-disputed island, the premise is that
sovereignty dispute is soluble. Sometimes the parties reach an agreement to solve the
island sovereignty issue and the maritime delimitation issue simultaneously. For example,
in 1969 Qatar and Abu Dhabi 12 signed the Agreement on Settlement of Maritime
Boundary Lines and Sovereign Rights over Islands, the two parties not only agree that the
islands of Al-Ashat and Shara’iwa are part of the territory of Qatar but also that the two
islands should be given full status. While sometimes the parties submit the dispute to an
international tribunal for decision. For example, in the 2001 Maritime Delimitation and
Territorial Questions Between Qatar and Bahrain, ICJ found Qatar has sovereignty over
the Hawar Islands and Qatar has sovereignty over Janan Island, and then both of the
islands were granted full status.13
However, such circumstances that disputed parties are willing to solve the island
sovereignty as well as the maritime delimitation, are truly rare. Accordingly, full status is
not often applicable in international practices.

B. Partial Status
Partial status means the legal status of an island is neither totally neglected nor
recognized, but is downplayed in significance to some extent. One consequence is that the
island in question can still be treated as a base point, while the sovereign right extended
from this base point is limited; another result is that the island remains not being treated
as a base point but an “appropriate maritime space.”
The same to full status, the premise for partial status is that the sovereignty dispute
can be settled. But, because partial status is more flexible, more possible to satisfy various
demands of different parties, so it was applied much more frequently than full effect. For
example, in the 1968 Agreement Concerning the Sovereignty over the Islands of
Al-Arabiyah and Farsi and the Delimitation of the Boundary Line Separating Submarine
Areas Between Saudi Arabia and Iran, the island of Al-Arabiyah was granted to Iran and

11
For example, East China Sea has a width of 150–360 from east to west, while it is surrounded by 4
countries (China, Japan, North Korea and South Korea) from east to west, which means not a single country
can extend to a theoretic utmost width of EEZ or CS.
12
Latter became a member of United Arab Emirates.
13
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), ICJ
Reports, at 115–17 (2001).
70 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

the island of Farsi was given to Saudi, while both of the island were granted only 12
nautical miles of TS; in the 1969 Agreement Between Qatar and Abu Dhabi, the island of
Al-Dayyina was granted to Abu Dhabi, but only with 3 nautical miles of TS; in the
1998/1999 Eritrea-Yemen Arbitration, PCA found Yemen has sovereignty over the islands
of Zuqar-Hanish, Jabal-al-Tayr and Zubayr, but all these islands were only granted 12
nautical miles of TS;14 in the 2000 Agreement Between the PRC and Vietnam on the
Delimitation of the Territorial Seas, the Exclusive Economic Zones and Continental
Shelves in Beibu Bay/Bac Bo Gulf, the island of BechLongVi was granted to Vietnam, but
only with 12 nautical miles of TS, 3 nautical miles of EEZ and CS; and in the 2007 Case
Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras, ICJ
adjudged the islands of Bobel Cay, South Cay, Savanna Cay and Port Royal Cay are
under the sovereignty of the Honduras, but only with 12 nautical miles of TS.15
And of course, the so-called “half status” suggests a special situation, which
actually means that assuming the island could be granted full effect; the two disputed
parties shall share the assumed full effect maritime space half-and-half.16 The typical
example for half status is the 1986 Agreement Between Burma and India on the
Delimitation of the Maritime Boundary in the Andaman Sea, in the Coco Channel and
in the Bay of Bengal, where the islands of Narcondam and Barren was given to India,
but only with half status.

C. Zero Status
Zero status means the island’s legal status is totally ignored in maritime delimitation
and thus has no substantial influence on maritime delimitation.
When the parties are willing to solve the island sovereignty through international
agreements or judicial decisions, the relative island can be given zero status. In that
circumstance, attaining the sovereignty of island will not lead to a more favorable place in
maritime delimitation, e.g. in the 1958 Bahrain — Saudi Arabia Boundary Agreement, the
Al Baina Island was left to Bahrain and the Al Kabir Island was left to Saudi, but none of
them was given any effect in maritime delimitation; in the 1974 Agreement Between Sri
Lanka and India on the Boundary in Historic Waters Between the Two Countries and
Related Matters, the island of Kachchaitivu was given to Sri Lanka, but just with zero
effect; in the 2001 Maritime Delimitation and Territorial Questions Between Qatar and
Bahrain, ICJ found that Bahrain has sovereignty over the island of Qit’at Jaradah, but the

14
Permanent Court of Arbitration: Eritrea-Yemen Arbitration, Award of 9 October 1998 (First Stage:
Territorial Sovereignty and Scope of the Dispute), at 147.
15
Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean
Sea (Nicaragua/Honduras), ICJ Reports, at 26–27 (2007).
16
On the method to delimitate the so-called “half effect maritime space,” see O’Connell, fn. 9 at 720
(1984).
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 71

island will not be considered in relative maritime delimitations.17

Also when the parties are not willing or able to solve the island sovereignty but are
willing to solve the maritime delimitation, the island in question can be given zero
status. In that circumstance, the island sovereignty which is more difficult to settle and
tends to be skirted and the maritime delimitation is firstly resolved. E.g. in the 1973
Agreement Between Denmark and Canada Relating to the Delimitation of the
Continental Shelf Between Greenland and Canada, the dispute of the sovereignty on
Hans Island was not resolved, and then this island was neglected in maritime
delimitation; in the 1974 Offshore Boundary Agreement Between Iran and Dubai, as
both of the parties argued for the sovereignty of the AbuMusa Island, they agree that
this island will be given no legal effect; in the 1977 Agreement Between the Haiti and
Cuba Regarding the Delimitation of Maritime Boundaries Between the Two States, as
Haiti and the US have a dispute on the sovereignty of Navassa Island, then this island
was neglected in maritime delimitation.
As zero effect can at least ensure that the attaining of the sovereignty of disputed
island shall not affect the balance of power in maritime delimitation, can be rather
convenient, flexible and equitable, and so it is more likely to be applied in maritime
delimitations related to sovereignty-disputed islands.18
To conclude, full effect and partial effect can only be applied when the island
sovereignty can be solved, while zero effect has no such limitation; partial effect and zero
effect are more likely to be applied in international practices. The following is a list on
the legal status that had been granted to sovereignty-disputed islands in maritime
delimitations (see Table 1).

Table 1 Sovereignty-Disputed Islands in Maritime Delimitations

Parties Ownership of Legal
Island(s) Settlement Method & Time
Sovereignty Effect
Qatar/Abu Dhabi Al-Ashat, Shara’iwa Qatar Full Agreement 1969
Qatar/Bahrain Hawar, Janan Bahrain, Qatar Full ICJ Judgment 2001
Burma/India Narcondam, Barren India Partial Agreement 1986
Saudi/Iran Al-Arabiyah, Farsi Saudi, Iran Partial Agreement 1968
Qatar/Abu Dhabi Al-Dayyina Abu Dhabi Partial Agreement 1969
Eritrea/Yemen Zuqar-Hanish, Jabal-al-Tayr, Yemen Partial PCA Awards 1998/1999
Zubayr
China/Vietnam BechLongVi Vietnam Partial Agreement 2000
(To be continued)

17
Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain), ICJ
Reports, at 104, 117 (2001).
18
See Jonathan I. Charney & Lawis M. Alexander, International Maritime Boundaries, vol. I, Martinus
Nijhoff Publishers (Leiden), at 136 (1993).
72 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

(Continued)
Parties Ownership of Legal
Island(s) Settlement Method & Time
Sovereignty Effect
Nicaragua/Honduras Bobel Cay, South Cay, Savanna Honduras Partial ICJ Judgment 2007
Cay, Port Royal Cay
Bahrain/Saudi Al Baina, Al Kabir Bahrain, Saudi Zero Agreement 1958
India/Sri Lanka Kachchaitivu Sri Lanka Zero Agreement 1974
Qatar/Bahrain Qit’at Jaradah Bahrain Zero ICJ Judgment 2001
Iran/Qatar Halul Unsettled Zero Agreement 1969
Canada/Denmark Hans Unsettled Zero Agreement 1973
Iran/Dubai AbuMusa Unsettled Zero Agreement 1974
Guba/Haiti Navassa Unsettled Zero Agreement 1977

III. CONDITIONS FOR GRANTING DIFFERENT LEGAL STATUS

TO SOVEREIGNTY-DISPUTED ISLANDS

From relative international practices, when the parties decide whether to grant effect
to a sovereignty-disputed island, or grant what kind of effect to the relative island, they
need to consider the following conditions: the willingness of the parties, the natural
circumstance of the island, the geographic position of the island, and the principle of
equity. The granting of different legal status to sovereignty-disputed islands is often the
result of the combination of the above conditions. But generally speaking, the more
forward the conditions, the more influential they are to the determination of the legal
status of sovereignty-disputed islands.

A. Willingness of the Parties

In the maritime delimitation related to sovereignty-disputed islands, the parties’
willingness should be taken into consideration as follows: First, whether the parties have
the intension to solve the island sovereignty and reach agreement; second, whether the
parties have the intention to solve the maritime delimitation and to reach agreement; third,
if the answer is yes, how they wish to solve the disputes, and if no, whether they can
share the least intention to achieve certain extent of cooperation.
Unlike other conditions, this condition is subjective. But this subjective condition is
so important that it can decide the scope for choosing legal status for the islands in
sovereignty disputes and it shall be the premise for all the other conditions.
We already know that only when the parties are willing to solve the island sovereignty
through certain methods and can really reach agreement on it, can the full effect and
partial effect be given to sovereignty-disputed islands. That is to say, what type of legal
status can be given to sovereignty-disputed islands will be directly affected by whether
the island sovereignty can be settled. When the parties agree to solve both issues of the
island sovereignty and the maritime delimitation, then both full status and partial status
can be granted, after considering other conditions; when the parties can only agree to
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 73

solve the maritime delimitation and not to solve the island sovereignty, then zero status
should be granted to the relative island and other conditions are no longer necessary to be
considered; when the parties cannot agree on either of the issues, then the disputes can
only be put aside and the legal status of the island remains undecided.
Furthermore, State Parties’ willingness on how to solve the maritime delimitation
related to sovereignty-disputed islands will determine the dispute settlement, at least to a
great extent. If the parties agree to solve the problem through international agreements,
then such agreements should be recognized and performed as long as it does not violate
basic international principles and jus cogens, not infringe the benefits of other States and
the international society; if the parties agree to solve the problem through international
judicial tribunals, then the case is subject to international legal adjudication.
In many sensitive sovereignty-disputed islands related maritime disputes, the parties
simply cannot reach any agreement to solve the problem and delimitate the maritime
boundary essentially, however, concession and mutual accommodation are always difficult,
and then joint development will be an option. But it is pointed out that although this option
can ease the disputes temporarily, it cannot lower the sensitivity of the disputes and improve
the possibility of settlement, it lacks real legal obligations and can only rely on the parties’
good faith in its performance, it does not really solve the maritime disputes and cannot
avoid an unstable status and therefore should be transited to some real dispute settlements.
From 1958, there were altogether 25 maritime joint development arrangements, 4 of them
were related to sovereignty-disputed islands.19 A survey into these arrangements will show
that whenever a sovereignty-disputed island is involved in such arrangements, then they are
deemed to be fruitless unless some linkage to other real maritime dispute settlements such
as international agreements or tribunals is forged.20

B. Natural Circumstance of the Islands

In this condition, we generally focus on two points: First, how an island is defined in
international legal terms? Second, whether the “island” can sustain human habitation or
economic life of its own?
The “island” must first meet with the definition given by UNCLOS Article 121(1), and
then can it own TS, EEZ and CS according to Article 121(2). However, not all the land

19
Such as: 1965 Agreement Between Kuwait and Saudi Concerning the Partitioning of the Neutral Zone;
1971 Iran-Sharjah Memorandum of Understanding (MOU); 1995 Anglo-Argentine Joint Declaration on
Co-operation over Offshore Activities in the South West Atlantic; 2004 Equatorial Guinea-Gabonese
Memorandum of Understanding on the Joint Development of the Resources in Mbanie Island.
20
The 1965 Agreement was replaced by 2000 Maritime Delimitation Agreement Between Kuwait and
Saudi; the 1971 MOU expired in 1991; the 1995 Declaration was never put into practice and was canceled by
Argentine in 2007; the 2004 MOU was not regarded by the two parties as a final resolution, instead, they
invited UN to mediate and confirm they shall solve the dispute amicably.
74 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

areas in the sea can be recognized by international law as island, no matter it is called as
“island” or not. From the definition of UNCOLS, there should be four criterions for the
constitution of island: area of land, surrounded by water, above water at high tide, and
naturally formed. From the second and third criterions, it can be seen that island largely is
defined in terms of its position relative to the sea surface. From the third and fourth
criterions, we can see the so-called “islands” which mainly maintain their position above
the water through artificial means, should not be considered as islands in legal terms.
Although the UNCLOS has set up four criterions, they are so vague to gain common
acceptance among all countries. What is more, the UNCLOS mention nothing about the
negative aspect, which is in fact very crucial, of the question — what are the land areas
that do not constitute islands? Therefore it will be very difficult to prove that certain land
areas are not islands. Some experts had suggested we divide islands and other land areas
such as rocks through the standard of square measure,21 yet none of the suggestions had
gained common acceptance by the international society.
If certain land areas have constitute islands, then such areas in principle can own legal
status and relative TS as islands, but whether such areas can own EEZ and CS would
depend on whether they can sustain human habitation or economic life of their own.
However, Article 121(3) of UNCOLS says nothing about what equals to “cannot sustain
human habitation or economic life of their own,” leaving huge space for the State Parties
to interpret this provision as their wishes and causing tremendous disputes. Although
many experts tried to elaborate on these provisions in detail,22 none of those explanations
had been widely accepted. From relative international practices, it is only certain about
two points: One, since Article 121(3) has used the word “or,” then as long as islands can
either sustain “human habitation” or “economic life of their own,” they can have
relatively higher legal status and own EEZ and CS accordingly; two, the smaller the
island is, the more possible for it to fail to meet the above criterions and get a limited
legal effect, vice versa.23

21
For example, some experts suggest that rock should be smaller than 0.001 square miles, island should
be bigger than 1,000 square miles; while others suggest rock should be from 1-10 square kilometers. See
Robert D. Hodgson, Islands: Normal and Special Circumstances, Bureau of Intelligence and Research, at 17
(1973); E. D. Brown, The International Law of the Sea, vol. I, Introductory Manual, Dartmouth Publishing,
Inc. (Sudbury), at 150 (1994).
22
See Marius Gjetnes, The Spratlys: Are They Rocks or Islands?, 32 Ocean Development & International
Law 191–204 (2001).
23
For example, in the Qatar v. Bahrain case, one of the reasons that the island of Qit’at Jaradah was
given zero effect, was just it is small. See Maritime Delimitation and Territorial Questions Between Qatar and
Bahrain (Qatar v. Bahrain), ICJ Reports, at 104 (2001). Some scholar claimed that small islands and rocks
generally have no effects or just have certain referential value. See FU Kuncheng, International Maritime
Law, Sanmin Book Co. (Taipei), at 141 (1992). And certainly, to these islands which have such a large square
measure like Taiwan, Japan and Britain, they are simply treated as real lands.
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 75

In addition, the condition of natural resources of the disputed islands, will also affect
the willingness of the disputed parties, especially when the disputed islands have higher
economic values on natural resources, reaching compromise will be more difficult.
So the natural circumstance of the island has substantial influence on the nature of
islands, the degree of their legal status, and the willingness of the disputed parties,
however, detailed standards applied to further investigate this condition need to be
improved.

C. Geographic Position of Islands

It should be first pointed out that the geographic position of islands has no relation
with the sovereignty belonging of the islands. Although certain States tried to claim the
islands close to their mainland should belong to them,24 yet such claimants can never find
any reason in international law, never recognized by the majority of international society,
and never get support from international judicial decisions.25
However, we must confess that the geographic position really has some influence on
the determination of island’s legal status in maritime delimitation. Although no solid basis
can be found in the UNCLOS and this condition cannot match to the above two
conditions, while relative international practices have already proved its existence.
Experts have classified the geographic position into five types according to the island’s
geographic position to mainland,26 and I will explain them in detail about their meaning
and their influences as follows.
1. Coastal Islands. — Coastal islands are located within the scope of homeland’s TS
(generally 12 nautical miles away from the sea shore). They constitute a part of the
seacoast; they are often used as the base point of straight base lines and are undoubtedly
granted full effect.
2. Offshore Islands. — Offshore islands are located near the homeland’s contiguous
zone (generally 12–24 nautical miles away from the sea shore). If such islands can
constitute a part of the seacoast, then they can be used as the base points of straight base
lines and be granted full effect; but if they cannot constitute a part of the seacoast, then
generally they will not be used as base points and only be given various partial effects

24
For example, Philippine proposed a so-called “Propinquity Principle” in 1956, claiming some islands
in the Spratly Islands should belong to Philippine, as they are close to it.
25
For example, the Channel Islands are over 150 km from Britain and only less 30 km from France, but
they belong to UK. And also in the Case Concerning the Delimitation of the Continental Shelf, PCA had
pointed out that the Channel Islands must be treated as British islands. See Case Concerning the Delimitation
of the Continental Shelf Between the United Kingdom of Great Britain and Northern Ireland, and the French
Republic, Decision of 30 June 1977, Reports of International Arbitral Awards, vol.18, at 89.
26
See Hiran W. Jayewardene, The Regime of Islands in International Law, Martinus Nijhoff Publishers
(Leiden), at 366 (1990).
76 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

(appropriate maritime space). For example, in the Case Concerning Maritime

Delimitation in the Black Sea, ICJ pointed out that the Serpents Island does not constitute
a part of the Ukraine’s seacoast and the Court considers it inappropriate to select any base
points on Serpents Island for the construction of a provisional equidistance line between
the coasts of Romania and Ukraine.27
3. Outlying Islands. — Outlying islands are located between the homeland’s
contiguous zone and the interim median line near the homeland’s side (generally above
24 nautical miles from the seacoast, and above 12 nautical miles from the interim median
line). Such islands do not constitute part of the homeland’s seacoast; and because granting
full status to these islands will cause derivation of the median line and harm the equity of
delimitation, these islands will not be used as base points, which will not be granted full
effect but only various partial effects (appropriate maritime space).
4. Median Zone Islands. — Median zone islands are located on or no more than 12
nautical miles away from the interim median line between the opposite States. Such
islands often cause disputes in maritime delimitation. Due to their distance from the
interim median line, such islands can be further classified as island on the “right side” of
the median line, island astride, and island on the “wrong side” of the median line.28 Due
to their special geographic positions, and in order not to cause trouble to the drawing of
median line and relative maritime boundary lines, they are generally not used as base
points in various practices of maritime delimitations, but are only granted partial status
(appropriate maritime space) or zero effect.29
5. Detached Islands. — Detached islands are located more than 12 nautical miles from
the interim median line, far away from the homeland’s seacoast while much more nearer
from the opposite state’s seacoast. Such islands are generally treated as exclaves and are
only granted partial or zero status in maritime delimitations.30
Furthermore, if the disputed island happens to locate in a position which has
significant strategic status, then surely the parties will contest for it desperately and as a
result, compromise is hardly achievable.

27
See Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3
February 2009, at 26, 45–47, 56–57.
28
See O’Connell, fn. 9 at 720–22 (1984).
29
For example, in the 1958 Agreement Between Bahrain and Saudi, the islands of Al Baina and Al Kabir
were granted zero effect as they are located on the median line; in the 1969 Agreement Between Qatar and
Abu Dhabi, the island of Al-Dayyina was granted only 3 nautical miles of TS as it is on the wrong side of the
median line.
30
For example, in the Case Concerning the Delimitation of the Continental Shelf, because the Channel
Islands are detached islands, so they were granted only partial effect. See Case Concerning the Delimitation
of the Continental Shelf Between the United Kingdom of Great Britain, Northern Ireland and the French
Republic, Decision of 30 June 1997, Reports of International Arbitral Awards, vol.18, at 92–95.
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 77

So we can see, although the geographic position has no direct relation with the
sovereignty of the disputed islands, it can cause different legal status and affect the
willingness of the parties.

D. Equity Principle
Equity principle is one of the fundamental principles of international law; it is a
recognized delimitation doctrine and its function often prevails in maritime delimitations.31
That is to say, when granting legal status to disputed islands, the equity principle must be
taken into consideration seriously and an equitable solution should be secured.
It is easy for us to find that any peaceful resolution of maritime disputes, no matter
which method it applies, it will rely on the consideration and application of equity
principle. ICJ had in many cases stated that maritime delimitation was made according to
equity principle.32 In such cases, although some might wonder the equity principle is the
direct source of law which leads to the judgments, I believe that it is too abstract, it is not
possible for the court to say “according to the equity principle, we adjudge that….” On
the contrary, equity principle is adopted to interpret some unclear provisions of
international conventions or some imperfect methods of maritime delimitations. Just in
the North Sea Continental Shelf, equity principle was adopted to interpret the drawing of
equal-distance median line, which made it possible for Germany to get more parts of the
disputed area. Here obviously the equity principle itself was not the reason of the
judgments, but it helped the court to draw a better median line between the disputed
parties. And in the 1968 Agreement Between Saudi and Iran, the parties clearly stated that
they want to delimitate their boundary in accordance with the equity principle, and that is
the reason why the island of Al-Arabiyah and the island of Farsi was given only 12
nautical miles of TS.
As a matter of fact, equity principle, which means not doing to others what you would
not wish to have done to you and judging impartially, is often applied to interpret, analyze
or make up positive international law.33 And because positive international law lacks
regulation on the legal status of disputed islands in maritime delimitations, equity
principle is deemed to play a more important role in such affairs. However, certain
detailed measures should be taken to put this into practice. For example, in the
Eritrea-Yemen Arbitration, in order to secure an equitable effect, applied a ratio test to

31
See ZHAO Lihai, 海洋法问题研究 (Current Problems on the Law of the Sea), Beijing University Press
(Beijing), at 60, 63 (1996).
32
For example, see North Sea Continental Shelf (Federal Republic of Germany/Netherlands), ICJ
Reports, at 53 (1969); Continental Shelf (Tunisia/Libyan Arab Jamahiriya), ICJ Reports, at 92 (1982);
Continental Shelf (Libyan Arab Jamahiriya/Malta), ICJ Reports, at 57 (1985).
33
See Steel Rometius, 国际法本体论 (On the Noumena of International Law), Law Press (Beijing), at
134–35 (2008).
78 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

examine the result of maritime delimitation.34

Thus it can be foreseen that equity principle is bound to play a more important role in
the maritime delimitation which related to sovereignty-disputed islands, and so it is
necessary to fully understand the contents of this principle and take some detailed
measures to put it into practice.

IV. LEGAL EFFECT OF DIAOYU ISLANDS AS SOVEREIGNTY-DISPUTED ISLANDS

The sovereignty dispute of the Diaoyu Islands has special historical and political
backgrounds. If we just focus on the current situation, it can be seen that China has been
demanding the sovereignty of the islands all along, claiming that they are affiliated
islands of Taiwan (China), and had provided many historical evidences; at the same time,
Japan maintains that it has ownership of the islands according to the Preemption Doctrine,
and had effectively controlled the islands for long. In turn, the Diaoyu Islands fits into the
category of sovereignty-disputed islands.
The dispute about the Diaoyu Islands involves two aspects, one is the belonging of
island sovereignty, and the other is the belonging of maritime space, rights and interests
related to the islands. Recently, the sovereignty dispute has become more and more
heated and aroused intensive arguments from both sides. On 11 September 2012,
Japanese government announced that they would “nationalize” the Diaoyu Islands by
purchasing the islands from the private “owner,” which met with strong protests by
Chinese government, precipitating a diplomatic crisis between the two countries. Given
the contentious and complicated nature of the Sino-Japanese dispute over the Diaoyu
Islands, the former approaches of dispute settlement for Diaoyu Islands needs to be
reconsidered. At a minimum, merely relying on politic or economic game and avoid legal
measures, merely collecting and stating the historic evidences and not stipulating the
reasons on international law, is not enough to settle this dispute. While the Japanese
highlighted the disputes should be submitted to international law, China can no longer
just repeat invoking historical evidences without legal responses. Therefore, analyzing the
legal effect of the Diaoyu Islands in maritime delimitation of the East China Sea under
the premise that the Diaoyu Islands are sovereignty-disputed islands will be helpful to the
peaceful resolution of dispute.
So here it is to check the possible willingness of the related parties, consider the

34
Since the ratio between the coastal line of Eritrea and Yemen is 1: 1.31, and the ratio between the two
countries’ sea area is 1: 1.09, so PCA announced its award fit in with the equity doctrine. See Permanent
Court of Arbitration: Eritrea-Yemen Arbitration, Award of 17 December 1999 (Second Stage: Maritime
Delimitation), at 38, 50; Barbara Kwiatkowska, The Eritrea/Yemen Arbitration: Landmark Progress in the
Acquisition of Territorial Sovereignty and Equitable Maritime Boundary Delimitation, 50 Int’l & Comp. L. Q.
299–344 (2001).
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 79

various conditions on the granting of different legal status to disputed islands, and then
analyze the legal status of Diaoyu Islands in maritime delimitation of the East China Sea.
Firstly, assuming that both China and Japan have the willingness to resolve the
sovereignty issue and the delimitation issue. Under such a premise, then full status, partial
status and zero status can be granted to the Diaoyu Islands. However, it is obvious that
such a situation would not happen. The UNCLOS has already made the Diaoyu Islands,
which were formerly invaluable rocks, become tempting islands, according to UNCLOS
islands can bring maritime space and benefits to States. The ownership of the Diaoyu
Islands not only relates to the national feelings of the two countries,35 but also relates to
the nationalist sentiments within China. Under the circumstance, a total solution of all the
disputed issues is not possible, and none of the governments dare to make an attempt to
do so.
And even supposing this situation exists, this does not mean necessarily that the
Diaoyu Islands can have all the three options on legal status. In the first place, the Diaoyu
Islands locate just on the median line of China and Japan,36 and they are typically median
zone (astride) islands. Just as mentioned above, in the practice of maritime delimitations,
in order not to hinder the drawing of median line and the maritime boundary line, such
kind of islands are often granted partial or zero effects. Second, as islands, the Diaoyu
Islands are undoubtedly entitled to own TS, but whether they are entitled to own EEZ and
CS will be in question. Not only Chinese scholars maintain that the Diaoyu Islands
cannot sustain human habitation or economic life of its own, but also some Japanese
scholars confess they do not meet the requirements posed by UNCOLS Article 121(3).37
In fact, now the Japanese government is just trying to garrison the islands with external
forces outside the islands. Because the Diaoyu Islands only have 6.3 square kilometers,
their legal effects are deemed to be reduced, and 12 nautical miles of TS will be the
utmost of their legal effect. Furthermore, using the Diaoyu Islands as base points will
greatly affect the delimitations of CS between China and Japan, so in accordance with
equity principle, they should not be used as base points,38 and even if they are used as

35
Just as scholars pointed out: Any government who dares to make compromise on the sovereignty
dispute of the Diaoyu Islands will be accused by the nationals as betrayer. See Carlos Ramos-Mrosovsky,
International Law’s Unhelpful Role in the Senkaku Islands, 29 U. Pa. J. Int’l L. 920 (2008).
36
See Ma Ying-Jeo, New Law of the Sea vis-à-vis the Diaoyu Islands and the Delimitation of the East
China Sea, Zhongzheng Press (Taipei), at 24 (1986).
37
See Nakanai Shin, The Maritime Delimitation Issues in East China Sea and Japan Sea, Shaojin trans.,
4 Journal of Foreign Jurisprudence 54 (1980).
38
Jeanette pointed out that even Japan had sovereignty of the Diaoyu Islands, these islands should not be
used as any part of the base lines in the maritime delimitation of CS between China and Japan, because they
are located outside of the general trend line of Okinawa islands. See Greenfield Jeanette, China’s Practice in
the Law of the Sea, Oxford University Press, at 130 (1992).
80 FRONTIERS OF LAW IN CHINA [Vol. 9: 65

base points their legal effect should be reduced as much as possible.39 So it is concluded
that if the parties want to solve the sovereignty issue of the Diaoyu Islands and delimitate
the relative maritime spaces, the Diaoyu Islands can be granted only low extent of partial
effect (TS within 12 nautical miles) or zero effect.
Secondly, assuming that the two parties have no intention of resolving the
sovereignty dispute of the Diaoyu Islands or cannot reach any agreement on such
matters, but both of them hope to settle the maritime delimitation and can really reach
an agreement on this. That is to say, the parties will leave sovereignty issue aside and
directly settle the delimitation, and this is a possible choice. However, as mentioned
above, under such a condition, the legal status of disputed-islands will not be full or
partial, but just zero. So if the East China Sea dispute was settled in this way, then the
Diaoyu Islands would be granted zero effect, and considering other objective conditions
not necessary any more.
Actually, according to the current situation, granting zero status to the Diaoyu Islands
is a much more possible choice not only in practice but also in theory. Just as some
experts have pointed out, the less the two parties maintain the indispensability of the
Diaoyu Islands in the maritime delimitation, the more possible for the two parties to solve
the complicated delimitation issue;40 combining the legal status, geographic location and
square measure of Diaoyu Islands, and considering the relative delimitation practices,
zero status is a better choice to the ongoing dispute over the Diaoyu Islands.41
Thirdly, assuming that the two parties neither have intention to resolve the
sovereignty dispute of Diaoyu Islands nor hope to solve the maritime delimitation issue in
the East China Sea, or that they cannot reach any agreement on such matters. Under such
a premise, the dispute will be set aside, the legal status of the Diaoyu Islands and the
maritime delimitation will simply be left undecided. In fact, the sovereignty issue of the
Diaoyu Islands had been set aside long before the Sino-Japanese Treaty for Peace and
Friendship was signed in 1978. Over time this unsettled issue needs to be dealt with.
Since the two parties hope not or cannot really solve it, while they share the least
intention of cooperation, then the strategy of “setting aside disputes and developing
jointly,” which was posed by the former Chinese leader Deng Xiaoping in 1979, might be
an option.

39
Nordholt also believed that whatever the ownership of the Diaoyu Islands, their inference on the
determination of the boundary lines of CS in East China Sea, if not totally be zero, will also be very weak.
See H. Schulte Nordholt, Delimitation of the Continental Shelf in the East China Sea, Netherlands Int’l L.
Rev., at 155 (1985).
40
See Wei-chin Lee, Troubles under Water: Sino-Japanese Conflict of Sovereignty on the Continental
Shelf in the East China Sea, 18 Ocean Development and International Law 598 (1987).
41
See WANG Keju, Diaoyu Islands and Its Effects in the Delimitation of East China Sea, (1) Chinese
Maritime L. Rev. 48–49 (2006).
2014] SOVEREIGNTY-DISPUTED ISLANDS IN MARITIME DELIMITATION 81

However, as we have analyzed above, this strategy is not a real solution and it cannot
avoid an unstable status, whenever a sovereignty-disputed island is involved in such
arrangement, such a strategy is deemed to be fruitless unless being submitted to a
maritime dispute legal mechanism such as international agreements or tribunals. The
serious problem for this strategy is a lack of binding obligations and its performance
relies totally on the self-consciousness of the parities. China and Japan have reached the
Sino-Japanese Principle Consensus of East China Sea in 2008, yet a closer examination
of the Consensus shows that it is neither better nor more binding than the 1995
Anglo-Argentine Joint Declaration, breaching the Consensus does not mean failure to
perform in bona fides or in estoppel.42 What is more, the “jointly development” around
the Diaoyu Islands and the sea space nearby just remains in the stage of “principle
consensus” till now, whether the more detailed and practicable “memorandum” or “joint
declaration” can be concluded is still in question. Although this strategy fits in well with
the idea of “Harmony” which is promoted by Chinese government recently, other States
remain concerned about this idea. As a matter of fact, no matter it is in the East China Sea
or the South China Sea, the relevant States are becoming more and more reluctant to
cooperate with China in applying the strategy of “putting aside disputes and developing
jointly,” and then the actual effect of this strategy becomes “putting aside disputes and
developing unilaterally.” So we know that this strategy should not be treated as the
preferred choice and be transited to some real dispute settlements.
In one word, if the sovereignty issue could be settled, then the Diaoyu Islands should
be granted low extent of partial status or zero status; if the sovereignty issue could not be
settled, then the Diaoyu Islands should only be granted zero status; the strategy of
“putting aside disputes and developing jointly” should not be treated as the preferred
choice and it is desirable for China to resort to some real dispute settlements.

CONCLUSION
The legal status of sovereignty-disputed islands in maritime delimitation can be
classified into full effect, partial effect and zero effect. There are four elements that could
affect the granting of legal effect to islands: the subjective willingness of the disputed
parties, natural circumstances, geographic position and equity principle. To such disputed
islands as the Diaoyu Islands, if sovereignty can be decided, then partial status or zero
status can be given in the maritime delimitation; if sovereignty cannot be decided, then
only zero status is available.

42
See Alexander M. Peterson, Sino-Japanese Cooperation in the East China Sea: A Lasting
Arrangement?, 42 Cornell Int’l L.J. 465 (2009).