ABSTRACT
Islands tend to loom large in the imagination of states. It is almost as if states view their islands, especially the smaller and far-flung ones, as children that have somehow been separated from their motherlands, forever needing to be protected from would-be encroachers. These parental attitudes over minute maritime territories are arguably no longer over-blown given the legal possibility that even specks of land on a map can generate 200 nautical mile (nm)-wide exclusive economic zones (EEZ) and continental shelf areas that stretch even beyond the 200-nm limit, according to the 1982 UN Convention on the Law of the Sea (UNCLOS). Nevertheless, for many countries around the world, and particularly those states facing the littoral seas of the Asia-Pacific theatre—encompassing the East and South China Seas—the prospect of extensive maritime jurisdiction zones around these islands seems to be of less concern than the need to assert indisputable title over such maritime territory. In other words, maritime jurisdiction zones are seen as important but adjunct to confirmation of their sovereignty over the “marine-terrestrial.”
All of this, however, contributes to the increased perception amongst such states of what they might lose out on in case their claim over insular territory is not accepted as prevailing over all other would-be claimants. Such a loss would not be limited anymore only to the terrestrial-based territorial sovereignty over the island itself, but also the large amount of ocean space accruing to such island territory, albeit such increased maritime jurisdiction is contingent upon that title being ascertained to be legally vested in that state. The net effect of such legally granted maritime largesse, especially when coupled with the fact that UNCLOS parties can choose to withdraw the “consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory from their acceptance of binding third-party dispute settlement” under section 2 of Part XV of UNCLOS, has arguably been to render any disputes over the sovereignty of islands even less susceptible to peaceful international dispute settlement.
Moreover, it is argued here that even before the advent of increased maritime jurisdiction space being formally accorded to island territory under the 1982 UNCLOS, it was the relative strength of competing claims to the title over territory that allowed one or another state’s claim to prevail in a sovereignty dispute. Indeed, this reliance on the relative strength between competing claims was already an important, if not imperative, aspect of successive deliberations from the earliest international decisions of disputed title to the island territory. As Schwarzenberger observed in 1957:
Although international judicial institutions have contributed much to the elucidation of this topic, it is like the judicial process that they should view such issues from a particular angle. In the typical case, they are confronted with conflicting claims of two contestants. Thus, they are not primarily concerned with the elaboration of the general rules governing title to territory and their operative scope about third states, but with the relative superiority of the evidence produced by one of the parties. While this is an inevitable and general feature of judicial proceedings, judicial reluctance to formulate generally applicable rules is more pronounced in disputes of this kind than, for instance, in the fields of international responsibility or the laws of war and neutrality.
The necessary subjectivity involved in assessing the differences between such competing claims of relative strength/superiority to sovereignty had already injected sufficient uncertainty into these judicial deliberations, such that very few states would welcome such third-party adjudication of their island sovereignty claims.
This contribution first engages with the application of this more subjective, relative strength test (rather than any objectively determined, absolute test) that allows a particular claim over title to territory, especially in the “terrestrial-marine” sphere, to prevail over other, competing claims of similar, but ultimately relatively weaker strength, as adjudicated by the international arbitrator(s) in a particular case. A further observation relates to the types of factual evidence deemed sufficiently authoritative by an international adjudicator to prevail based on the relative strength of competing state claims. This observation relates to the fact that such evidence (as adduced by claimant states over several international cases) has usually not been regarded as definitive to confer absolute title to the disputed territory. Instead, what is notable in this re-examination of the adduced evidence over several international cases is that a low legal threshold is applied by the adjudicator(s) in these cases to assess this evidence. Indeed, this low legal threshold confines itself to weighing up only the relative strengths of the adduced evidence, rather than applying a more objective, stringent (and therefore higher) legal threshold to ensure certainty of the absolute sovereignty of a state over a particular disputed territory. It is arguably this combination of the application of the relative strength test for assessing different sovereignty claims, alongside the low legal threshold for assessing the adduced evidence for establishing sovereignty over disputed territory that increases the level of uncertainty for disputing states. This strong and abiding perception of uncertainty acts to further drive states away from bringing their claims to international judicial settlement.
This set of propositional statements is assessed by a re-examination of selected island-focused territorial sovereignty disputes that have come before various types of international adjudication. To determine the strength of the hypothesis put forward here, the following analysis focuses on how the relevant international adjudication body (or sole arbitrator in certain cases) applied the (low) legal threshold to decide upon the factual evidence adduced by states, and then considered the relative strength of this evidence as between competing sovereignty claims to determine which of these claims would succeed.
