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Published online by Cambridge University Press: 17 January 2008
The genius of the century is also changing the conditions of our action overseas, leading us to bring an end to colonization. It is entirely natural that one should feel nostalgia for what was the Empire, just as one may regret the gentle light of oil lamps, the splendour of the navy under sail. But there is no valid politics outside realities.
1. Lacouture, J., De Gaulle, The Ruler 1945–1970 (trans. Sheridan, A., 1992), p.267.Google Scholar
2. (1977) 23 Ann. français de droit int. 1055.
3. Convention on the Law of the Sea 1982, Preamble.
4. The other major NIEO agenda was, of course, the regime of the deep seabed.
5. This article considers only the value of islands generating maritime zones in their own right. It does not consider the benefits gained by drawing baselines around islands just off the coast of a mainland State.
6. E.g. Continental Shelf (Libya v. Malta) I.C.J. Rep. 1985, 13; Anglo-French Arbitration (1979) 18 I.L.M. 398; St Pierre and Miquelon Arbitration (1992) 31 I.L.M. 1145; Jan Mayen (Denmark v. Norway) I.CJ. Rep. 1993, 38.
7. Jan Mayen, idem, p.84.
8. (1981) 20 I.L.M. 797, 803.
9. Symmons, C. R., The Maritime Zones of Islands in International Law (1979), p.114Google Scholar; Simonides, J., “The Legal Status of Islands in the New Law of the Sea” (1987) 65 Rev. de dr.int. 161, 162.Google Scholar
10. The EEZs of numerous island dependencies are already exploited for their rich fishing grounds. The continental shelves of France's Clipperton Island and the otherwise insignificant Eparses group are but two examples known already to contain polymetallic nodules: Aquarone, M.-C., “French Marine Policy in the 1970s and 1980s” (1988) 19 Ocean Dev. and I.L. 267, 276.Google Scholar Of the UK's dependencies so far, the British Indian Ocean Territories offer prospects of manganese nodules and other oxides, and the Falklands offer reasonable hydrocarbon prospects: see generally the Marine Technology Directorate Limited, Exclusive Economic Zones: British Dependencies and Non-Living Resources (1989).
11. Symmons, , op. cit. supra n.9, at p.xiGoogle Scholar; Van Dyke, J. M. and Brooks, R. A., “Uninhabited Islands: Their Impact on the Ownership of the Ocean's Resources” (1983) 12 Ocean Dev. and I.L. 265, 266.Google Scholar Of course, some non-colonial powers lay claim to island territories from which they hope to profit. See e.g. the dispute over the Spratly and Paracel Islands in Park, C., “The South China Sea Disputes: Who Owns the Islands and the Natural Resources?” (1978) 5 Ocean Dev. and I.L. 27.Google Scholar See also India's sovereignty over the islands in the Andaman Sea. Furthermore, the developing island States of the Pacific have benefited enormously, in theory, from the EEZ and nominal 200-nm continental shelf.
12. It is a truism that a State must first establish its title to an island before it can profit from its maritime zones. Sovereignty over most of the former colonial powers' island possessions is uncontested. In terms of inhabited territories, the Falkland Islands is the only controversy and even then British sovereignty is not questioned by the wider international community. When it comes to uninhabited islands, there is more room for dispute. E.g. French sovereignty over the uninhabited Indian Ocean islands of Juan de Nova, lies Glorieuses, Europa and Bassas da India is contested by Madagascar, which describes them as an integral part of its territory: (1978) 82 R.G.D.I.P. 669, 670. For the principles governing sovereignty over territory, especially sparsely inhabited or uninhabited islands, see Island of Palmas (Netherlands v. US) (1928) 2 R.I.A.A. 829; Clipperton Island (France v. Mexico) (1932) 26 A.J.I.L. 390; and Legal Status of Eastern Greenland (Denmark v. Norway) (1933) P.C.U. Rep., Ser.A/B, No.53, esp. at p.46.
13. Jan Mayen, supra n.6, at para.60.
14. Idem, p.84.
15. (1981) 20 I.L.M. 797, 803–804.
16. Certainly States do declare EEZs and claim continental shelves around seemingly uninhabitable and worthless specks. France has declared an EEZ around Clipperton Island (1977 J.O. 1102), the low coral lagoon reef, less than three miles in diameter, which was the subject of the famous arbitration by King Victor Emmanuel III of Italy (Clipperton Island, supra n.12). The Indian Ocean islands of Juan de Nova, lies Glorieuses, Europa and Bassas da India, around which France has also declared EEZs (1978 J.O. 683–688), are scarcely more substantial than Clipperton. The US claims EEZs around even its most minuscule Pacific possessions, such as Johnston Island and Kingman Reef ((1983) 77 A.J.I.L. 619–623). The tiny, sun-baked Ashmore and Cartier Islands—more reefs than islands—generate maritime zones as far as Australia is concerned (s.4 of the Seas and Submerged Lands Act 1973, as amended by the Maritime Legislation Amendment Act 1994), a claim recognised by Indonesia in the context of the continental shelf (I.B.S., No.87). The precise nature of the opinio juris accompanying these declarations of EEZs is, however, unclear. It may be that States believe Art.121(3) not to be part of general law. On the other hand, it is probably more likely that they hold this provision to accord with customary law but that they place an extremely permissive interpretation on it.
17. Churchill, R. and Lowe, A., The Law of the Sea (rev. edn, 1988), p.41Google Scholar; Van Dyke, and Brooks, , op. cit. supra n.11, at p.267.Google Scholar
18. This broader view that sees “rocks” as a synonym for tiny, unpeopled islands is supported by some writers with a more geographical outlook. See e.g. Hodgson, R. D. and Smith, R. W., “The Informal Single Negotiating Text (Committee II): A Geographical Perspective” (1976) 3 Ocean Dev. and I.L. 225, 230.Google Scholar
19. Van Dyke, and Brooks, , op. cit. supra n.11, at p.283.Google Scholar See also Simonides, , op. cit. supra n.9, at pp.163, 178.Google Scholar This latter interpretation has some scholarly support. Symmons, (op. cit. supra n.9, at p.50)Google Scholar for one makes the distinction between “islands stricto sensu” and “rocks”, saying that only the latter need be capable of human habitation.
20. See the Romanian draft articles, UN Doc. A/Conf.62/C.2/L.53, Art. 1; the joint African draft articles, UN Doc.A/Conf.62/C.2/L.62/Rev.1, Art.1; and the Turkish draft articles, UN Doc.A/Conf.62/C.2/L.55, Art.3(3) and (4).
21. See the joint African articles, Art.2(4); Turkish draft articles, Art.3(3).
22. Convention on the Territorial Sea and Contiguous Zone 1958, Art.10(1). Supporters of the status quo included Greece, UN Doc.A/Conf.62/C2/L.50; several Pacific States, UN Doc.A/Conf.62/C.2/L.30; Italy, UNCLOS III—Official Records, Vol.II, p.298; and the UK, idem., p.288.
23. (1981) 20 I.L.M. 797, 803–804.
24. Jan Mayen, supra n.6, at p.84.
25. Symmons, , op. cit. supra n.9, at p.52Google Scholar; Van, Dyke and Brooks, , op. cit. supra n. 11, at p.267Google Scholar; Churchill, and Lowe, , op. cit. supra n.17, at pp.41–42.Google Scholar
26. Van Dyke and Brooks, ibid and p.284; Hodgson, and Smith, , op. cit. supra n. 18, at p.231.Google Scholar
27. Simonides, , op. cit. supra n.9, at p.163.Google Scholar
28. Symmons, , op. cit. supra n.9, at p.52.Google Scholar See also Stevenson, J. R. and Oxman, B. H., “The Third UN Conference on the Law of the Sea” (1975) 69 A.J.I.L. 765, 786.Google Scholar
29. See e.g. Fiji, , Official Records, Vol.II, p.283.Google Scholar
30. Van, Dyke and Brooks, , op. cit. supra n.11, at p.284.Google Scholar
31. Churchill, and Lowe, , op. cit. supra n.17, at p.136. See Annex.Google Scholar
32. By declaring EEZs around e.g. Clipperton Island, Ashmore and Cartier Islands, or Kingman Reef, the governments of France, Australia and the US respectively may be expressing the opinio juris that: (a) the limitation imposed by Art.121(3) does not accord with customary international law; (b) Art. 121(3) is part of general law but is limited in its application to formations that are, geologically speaking, truly rocks; or that (c) a flexible and permissive interpretation should be placed on the words “economic life of its own”.
33. The UK originally explained the 52,000-nm2 continental shelf claimed around the desolate finger of rock as being generated by Rockall in its own capacity, as well as on the grounds of the natural prolongation of Scotland. Since the 1982 Convention, and in the face of hostility from Ireland and Denmark, the UK has relied on the natural prolongation ground only: (1985) 56 B.Y.I.L. 494.
34. The right of a people to self-determination, popularised as early as the Paris Peace Conference by the likes of President Woodrow Wilson and Tomas Masaryk, was asserted in the colonial context by the Declaration on the Granting of Independence to Colonial Territories and Peoples 1960, G A Res.1514(XV). This resolution built on the principles of the UN Charter, Arts.1(2), 55 and 56. In the light of the principle's subsequent affirmation by numerous General Assembly resolutions (e.g. Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations 1970, GA Res.2625(XXV)), it was recognised as being a rule of customary international law in The Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion, I.CJ. Rep. 1971, 16, 31. This was affirmed in the Western Sahara Case, Advisory Opinion, I.CJ. Rep. 1975, 12.
35. Note the explicit reference by the Cuban delegate to Res. 1514(XV), Official Records, Vol.II, p.279.
36. See the OAU's Declaration on the Issues of the Law of the Sea (1974), UN Doc.A/Conf.62/33, para.10; Turkish draft articles, UN Doc.A/Conf.62/C.2/L.55, Art.3(1); joint African draft articles, UN Doc.A/Conf.62/C.2/L62/Rev.1, Art.5.
37. Joint draft articles of Fiji, New Zealand, Tonga and Western Samoa, UN Doc.A/Conf.62/C.2/L.30, para.B.
38. UNDoc.A/Conf.62/121.
39. See e.g. GA Res.46/68A, adopted 11 Dec. 1991, by consensus. Art.7 “[u]rges the administering Powers to take effective measures to safeguard and guarantee the inalienable right of the peoples of those Territories to own, develop and dispose of the natural resources of those Territories, including marine resources, and to establish and maintain control over the future development of those resources”.
40. Churchill, and Lowe, , op. cit. supra n.17, at p.136Google Scholar; Symmons, , op. cit. supra n.9, at p.58.Google Scholar
41. See Western Sahara, supra n.34, at paras.55, 57. Similarly, the French Collectivité territoriale of Mayotte (which chose by referendum to remain with France on the independence of the rest of the Comoros in 1975) and the Cocos (Keeling) Islands (which elected to integrate with Australia in a UN-supervised plebiscite in 1984) has each exercised its right to self-determination.
42. For example, Anguilla separated from the newly independent St Kitts-Nevis in 1967 and reverted to a British dependency in 1980, in a move widely perceived as finalising its political status (Connell, J., “Britain's Caribbean Colonies: The End of the Era of Decolonisation?” (1994) 32 J. Commonwealth & Comp. Politics 87, 91Google Scholar). When Jamaica became independent in 1962, the Cayman Islands chose to remain under the British Crown. Now in both countries there is virtually no popular desire for independence: “The UN's attitude has always been that the only means of self-determination is independence. Self-determination as far as the Cayman Islands is concerned is being in a position in which we can look after ourselves financially and keep the door open … to be part of the British system” (Cayman Islands' Leader of Government Business, Thomas Jefferson: idem., p.93). Despite the fact that from time to time it has dispensed with the requirement of formally consulting the inhabitants of a territory where special circumstances make this unnecessary (Western Sahara, idem., p.33), the General Assembly still continues to state that Anguilla and the Caymans have not yet freely expressed their inalienable right to self-determination. See e.g. GA Res.46/68A, adopted 11 Dec. 1991, by consensus. The Dutch Caribbean island of Aruba is in a similar position, deciding in 1993 via its government to renounce its desire for independence in 1996. While the people generally “share the view that self-determination can be realised in a meaningful way in a constitutional form such as the present Charter [of the Kingdom of the Netherlands]” ((1993) 24 N.Y.I.L. 205, 206), the absence of a referendum on the subject may draw UN disapproval. The question with French possessions is whether the département status enjoyed by Guadeloupe, Martinique and Réunion, which confers on them greater powers of self-government and the right to elect three senators and two deputies to the French metropolitan parliament, is considered a “self-governing status recognised by the UN” for the purposes of Res.III.
43. The statement was made, rather curiously in the light of the Falk lands, by the Argentine delegate, Official Records, Vol.II, p.284.Google Scholar Jayewardene, H. W. believes that although the distinction is not made apparent in Res.III, it was the interests of indigenous peoples of islands that was predominantly in the minds of the sponsors: The Regime of Islands in International Law (1990), pp.18–19.Google Scholar Indeed, Britain claims that its sovereignty over the Falkland Islands (which have consistently expressed a desire to stay with Britain via their elected representatives) and over their surrounding marine resources rests “on the principle of selfdetermination” (1983) 54 B.Y.I.L. 461.
44. GA Res.46/64, Art.10. Adopted 11 Dec. 1991 by vote, 109–34–16. Reiterated in identical language in GA Res.48/46, Art.6. Adopted 10 Dec. 1993 by vote, 111–43–3.
45. Agreement on the Maritime Delimitation between the Government of Australia and the French Republic, 4 Jan. 1982, T.S. 1983, No.3. While claiming to “tak[e] into account the work of the Third United Nations Conference on the Law of the Sea” (Preamble), the agreement speaks not of France exercising its rights for the benefit of the people of the territory but rather only of France's “sovereign rights” (Arts.2 and 4).
46. (1992)31 I.L.M. 1145.
47. McDorman, T. L., “The Canada-France Maritime Boundary Case: Drawing a Line around St Pierre and Miquelon” (1990) 84 A J.I.L. 157, 185. Nor was it thought relevant that even without a French zone of resource jurisdiction off the coast, the livelihood of the St Pierre and Miquelon fleet was assured by previous agreements granting them guaranteed access to Canadian waters.Google Scholar
48. The importance of potential oil deposits in motivating the French action is noted in Aquarone, loc. cit. supra n.10.
49. See e.g. Romania, , Official Records, Vol.II, pp.156, 281Google Scholar; Tunisia, idem., p.287. The Argentine delegate spoke of the need “to prevent the colonial or occupying powers from adding a new element to their illegitimate interests in the islands … in question”, idem, p.284.
51. Libya v. Malta, supra n.6, at para.52.
52. Jan Mayen, supra n.6, at para.80.
53. C. Wren, quoted in Aquarone, loc. cit. supra n.10.
54. The separate question of whether an island's status as an island is a relevant circumstance in maritime boundary delimitations will not be addressed here as it requires considerably more space than is presently available and depends largely on the geography of each case.
55. Jan Mayen, supra n.6, at paras.46–48.
56. (FRC v. Denmark; FRG v. Netherlands) I.C.J. Rep. 1969, 3, para.101(C)(1).
57. I.C.J. Rep. 1982, 18, 59.
58. (1979) 18 I.L.M. 398, para.186.
59. I.C.J. Rep. 1985, 35, para.53.
60. (1992) 31 I.L.M. 1145. The Court was asked to come up with a single delimitation covering both continental shelf and EEZ.
61. Idem, para.49. The Court added (at para.52) that “Newfoundland … is equally an island which does not enjoy the status of an independent or semi-independent state.” This has a specious logic. Newfoundland may not be independent but it is not a mere overseas dependency—it is politically an integral part of Canada and is almost assimilated to it geographically.
62. Jan Mayen, supra n.6, at para.80. While in law the ICJ did not make a single boundary, the factual result was that the boundaries adopted were identical. For a good summary of the approach taken to this issue by the respective courts in St Pierre and Miquelon and Jan Mayen see Evans, M. D., “Less Than an Ocean Apart: The St Pierre and Miquelon and Jan Mayen Islands and the Delimitation of Maritime Zones” (1994) 43 I.C.L.Q. 678.Google Scholar
63. Loc. cit. supra n.58.
64. (1992) 31 I.L.M. 1145, para.52.
65. Jan Mayen, supra n.6, at p.310.
66. Ibid.
67. Idem, p.312.
68. France–Mauritius boundary agreement regarding Réunion, 2 Apr. 1980, 1980 Recueil des Traités No.37; France-St Lucia boundary agreement regarding Martinique, 4 Mar. 1981, 85 R.G.D.I.P. 654; France-Tonga boundary agreement regarding Wallis and Futuna, 11 Jan. 1980, 1980 Recueil des Traités No.18.
69. E.g. France–Australia boundary agreement regarding New Caledonia, Te.S. 1983, No.3.
70. E.g. the continental shelf delimitation between Indonesia and Australia with respect to the Ashmore Islands and Cartier Island, I.B.S., No.87.
71. See McDorman, , op. cit. supra n.47, at p.174.Google Scholar
72. Aquarone, op. cit. supra n.10, at p.267.Google Scholar
