The Regime of Islands under the United Nations Convention on the Law of the Sea: Implications for the South China Sea (NBR Special Report no.37, pp61-77)
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This essay explores the contentious issue of islands and their associated claims to maritime jurisdiction in international law with particular reference to the islands/rocks in East and Southeast Asia and especially the disputed islands of the South China Sea.
Islands remain a critical factor in maritime and territorial disputes in East and Southeast Asia, both with respect to sovereignty disputes over island territories and with regard to their capacity to generate maritime jurisdictional claims for the delimitation of maritime boundaries. The regime of islands, as provided in Article 121 of the UN Convention on the Law of the Sea (UNCLOS), remains unclear, and no authoritative ruling or consensus on its interpretation has yet emerged. Recent developments, however, have clarified the positions of some of the parties to the South China Sea islands disputes on this issue. There is also a trend toward reducing the effect of sparsely inhabited or uninhabited islands in the generation of maritime claims and the delimitation of maritime boundaries. The latter development suggests that disputed islands, even if deemed capable of generating extended claims to maritime jurisdiction, would have only a limited capacity to generate such claims compared with the surrounding mainland and main island territories. Acceptance of this view by, for example, the South China Sea claimant states would result in considerable narrowing of the area of overlapping maritime claims, thus significantly simplifying the dispute.