Wong on Pedra Branca/Batu Puteh

Work in progress, 3 September 2024

[E] Singapore Land Reclamation - Article 121 UNCLOS - Abuse of Rights - Abus de Droit

See also, Lim Tin Seng, 'Land From Sand: Singapore’s Reclamation Story' (National Library of Singapore, 4 April 2017) <https://biblioasia.nlb.gov.sg/vol-13/issue-1/apr-jun-2017/land-from-sand/>, archived at <https://archive.is/6YMuB>. 

See also, Ng Keng Gene, 'Long Island reclamation plan the right solution to meet S’pore’s long-term needs: Experts' (The Straits Times, 12 November 2024) <https://www.straitstimes.com/singapore/multi-pronged-reclamation-project-the-right-solution-to-meet-s-pore-s-long-term-needs-experts>, archived at <https://archive.md/iAxpR>. 

Christine Pichel, 'The Unfortunate Wording of Article 121(3) of UNCLOS and Its Interpretation in the 2016 South China Sea Arbitration Award' (2022) 7 Asia-Pacific Journal of Ocean Law and Policy 53. Text. "The correct approach to these ‘geographical’ provisions in Parts ii and viii [Article 121 on the Regime of Islands] is to interpret and apply them in a reasonable manner. This means using common sense, acting always in good faith and not exercising the rights recognized in [unclos] in a manner in which would constitute an abuse of right, as mandated in particular by Article 300 [of unclos]. In other words, it means avoiding claims, interpretations, stratagems and actions that are self-serving and represent an abuse of law”.97 “When the UK became a party to [unclos] in 1997, the UK Fishery Zone (a type of eez) was no longer measured from Rockall’s baselines. The UK laws were brought into conformity with [unclos] and, as a result, the Fisheries Zone was reduced in size. This is what states which have a rock are supposed to do upon becoming party to a Convention. It appears that some states have not done this, even though they claim sovereignty over what are no more than rocks. Such states are claiming the benefits of [unclos], while failing to accept the obligations arising for them under its terms. This cannot be correct. In the opinion of the present author, this reasoning could also support the idea that the Tribunal set up a very high threshold for a feature to be a “fully entitled  island” in order to exclude possible abuse of Article 121(3) of unclos".

D Anderson, 'Some Aspects of the Regime of Islands in the Law of the Sea' (2017) 32 International Journal of Marine and Coastal Law 316. 

Xinjun Zhang, 'Manila playing a shoal game?' (Webpage) <http://ph.china-embassy.gov.cn/eng/zt/nhwt/201205/t20120529_1334615.htm>, archived at <https://archive.is/aYPwn>. 

Joshua L Root, 'Castles in the Sand: Engineering Insular Formations to Gain Legal Rights over the Oceans' (2016) 3 Chinese (Taiwan) Yearbook of International Law and Affairs 58, 64, 66, 67, 75: "Some commentators have suggested that by "engaging in massive land reclamation, Beijing is obscuring the ability to rule on whether the features in question were actually rocks or reefs in the first place. In effect, China may be 'tampering with the evidence' in the South China Sea."3 Such actions, if true, could not be used for the benefit of the offending State; but China's actions seem less to do with obscuring evidence for the purposes of Article 121 than supporting its political claim to the so-called nine-dashed line and controlling the sea space therein ... States are generally free to engage in any activity they wish so long as it does not conflict with a positive rule of customary international law or treaty obligation.50 There is nothing unlawful in land reclamation and island building in and of itself However, even without claiming the formations are islands, the PRC's construction efforts in the South China Sea may run afoul of international law in several ways, particularly to the extent the insular formation building is directed at access to sea-space. Apart from the fact that only the coastal state may erect artificial islands in the EEZ, under Article 6o(7) artificial islands in any event may not be erected "where interference may be caused to the use of recognized sea lanes essential to international navigation. ... States also have an obligation to exercise their rights under the UNCLOS in good faith and with due regard to the rights of other States. 55 China's land reclamation program violates obligations to settle disputed maritime zones through peaceful means and through a cooperative process.5 6 As the arbitration decision noted in Guyana v. Suriname, States cannot act unilaterally in setting disputes. 57 Further, the land reclamation and island building in the South China Sea appears to be in contradiction to China's promises in the 2002 joint ASEAN-PRC declaration on the Conduct of Parties in the South China Sea.58 Although the document is not a binding treaty, it is at least expectation forming and reflects a commitment to conform to certain principles. Those principles are being disregarded by the PRC. ... Modern law of the sea is replete with instances of divorcing the legal and scientific meaning of words. For example, a State need not have a geological continental shelf in order to enjoy the legal benefits associated with the continental shelf; on the other hand, a State may have a bay in the geographic sense, but not in the legal sense. When States pour sand and concrete on rocks and low-tide elevations and then construct military outposts on them, they do not become greater insular formations, they are but castles in the sand. ... When an island is expanded outward its maritime zones expand accordingly. Singapore has grown in size by 22% since independence in 1965.113 To the extent its zones are not zone locked, they would expand accordingly. As long as a formation is an island ab initio, nothing in the UNCLOS prevents an island from being expanded, and having its maritime zones expand accordingly, so long as the action is in good faith. A low-tide elevation (or rock) remains such when expanded. The maritime zones afforded a rock will expand with the size of the rock, but an EEZ will not be triggered no matter how substantial the increase in size. (This is true for a snapshot in time, but if States treat the formation as an island over a sufficient period time, it might achieve island status eventually.) 114 It is an uncomfortable, but accurate interpretation of the UNCLOS to confer onto insular formations greater maritime zones when they are expanded outward, but not upward. Artificially increasing the height of a formation by reclamation or, say, pouring concrete over it, will not satisfy the requirement that an island be above water at high-tide. As Charney argued "artificially wrought changes in [a formation's] elevation"-i.e. engineering the formation to be taller-"will not entitle a rock of a naturally lower elevation to serve as a base point to generate the various maritime zones ..."

Geoffrey Steven Keating, 'Rock or Island: It Was an UNCLOS Call: The Legal Consequence of Geospatial Intelligence to the 2016 South China Sea Arbitration and the Law of the Sea' (2017) 9 Journal of National Security Law and Policy 509. 

Irina Buga, 'Territorial Sovereignty Issues in Maritime Disputes: A jurisdictional Dilemma for Law of the Sea Tribunals' (2012) 27 International Journal of Marine and Coastal Law 59, 85-6: "Notwithstanding the numerous sovereignty claims over the Spratlys, these small islets-with no independent economic life of their own, nor the capacity to sustain stable human populations' -and structures built on their reefs,'17 hardly seem entitled to extended maritime zones.417 They may not even be entitled to a full territorial sea zone, which may constitute an 'abuse of right' imposing an "unacceptable burden on other nations" under LOSC Article 300.175 Furthermore, it has been contended that under the equidistance principle the Spratlys would not have equal capacity vis-a-vis land masses to generate extended maritime zones."

Hui Wu and Dan Zhang, 'A Chinese Position' (2010) 3(1) Journal of East Asia and International Law 137, 149: "As for the Oki-no-Tori Shima issue, Japan should fulfill the obligations assumed under UNCLOS and exercise its rights in good faith and in a manner which would not constitute an abuse of right. Nowadays, it is easy for other countries to do the same thing as Japan did to the Oki-no-Tori Shima. If all these countries take a rock, such as Oki-no-Tori Shima, to illegally delimit the EEZ, the continental shelf and even the extended continental shelf beyond 200 nautical miles, the legal systems founded by UNCLOS will collapse."

Stefan Talmon, 'The South China Sea Arbitration: Observations on the Award on Jurisdiction and Admissibility' (2016) 15(2) Chinese Journal of International Law 309, 359. 

Fang Yinxia, Tang Yong and Fu Jie, 'Summary of Recommendations by the Commission on the Limits of the Continental Shelf with Regard to Japan's Submission: A Commentary' [2013] 2013(18) China Oceans Law Review 110, 128-9: "The delimitation of the coastal States' continental shelves is a division of interests among the coastal States and the international seafloor. To balance these two interests, article 300 of UNCLOS, "[g]ood faith and abuse of rights," clearly provides that the States Parties shall fulfill in good faith the obligations assumed under the UNCLOS and shall exercise the rights, jurisdiction and freedoms recognized in the UNCLOS in a manner which would not constitute an abuse of right. On one level, coastal States should exercise their rights appropriately and avoid abusing them. On another level, when claiming their extended continental shelves, coastal States should not encroach upon international seafloor or use certain provisions of the UNCLOS out of context to make excessive claims. To maximize its interests, Japan had apparently disregarded the "Good faith and abuse of rights" requirements in the UNCLOS and abused the relevant provisions. Such attempts were reflected not only in the claim for an extended continental shelf based on Old-no-Tori Shima, but also in the identification of the legal status of the various types of ocean ridges in the deep ocean floor. These included the Minami-lo To Spur, Minami-Tori Shima Island, the Mogi Ridge, the Uyeda Ridge, the Michelson Ridge, the Hotokenoza Seamount group, the southern tip of the Oki-Daito Rise, the Kinan Seamount, and the Minami-Izu Terrace, all located in deep sea basins and abyssal plains. Japan had considered all these the natural submerged prolongations of its land territory and submarine elevations in the naturally-formed portions on the edge of the continental margins. In the process of considering Japan's submission, the CLCS upheld the basic principles of the UNCLOS and prepared its recommendations after a copious amount of arduous and meticulous work".

Vasco Becker-Weinberg, 'South Korea Boundary Disputes in the East China Sea and the Yellow Sea' (2020) 5(2) Asia-Pacific Journal of Ocean Law and Policy 303, 317: "States must also exercise their rights while having due regard for the rights and freedoms of other States and in a manner that does not constitute an abuse of right.64 This is the case of the obligation to protect and preserve the marine environment, and the ancient freedom of navigation",

Arron N Honniball, 'Pedra Branca / Pulau Batu Puteh – Land Reclamation at Maritime Features Pending Maritime Delimitation' (2021) 6 Asia-Pacific Journal of Ocean Law and Policy 276, 284: "Land reclamation around undisputed maritime features is within the rights of a coastal state. It should be exercised with prudence towards environmental protection, with due regard to other ocean users, such as navigation, and, in a spirit of cooperation, involve information exchange and due notice to any state which may suffer transboundary harm. As evident in Articles 13 and 121 of unclos, land reclamation alone will not have any impact on the legal status of a feature in the law of the sea.45 Nonetheless, to paraphrase Guillaume, while a state cannot transform a maritime feature, there is nothing to stop it from improving its habitation conditions". 

Jonathan L Hafetz, 'Fostering Protection of the Marine Environment and Economic Development: Article 121(3) of the Third Law of the Sea Convention' (2000) 15(3) American University International Law Review 583 <https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1270&context=auilr>.  

Yann-Huei Song, 'The Application of Article 121 of the Law of the Sea Convention to the Selected Geographical Features Situated in the Pacific Ocean' (2010) 9 Chinese Journal of International Law 663 <https://umdb.um.u-tokyo.ac.jp/DImages/Chiri/okinotorishima_minamitorishima/PDF/253Song2010ChineseJIntLaw.pdf>.  

National Institute for South China Sea Studies, 'A Legal Critique of the Award of the Arbitral Tribunal in the Matter of the South China Sea Arbitration' (2018) 24 Asian Yearbook of International Law 151-293 <https://brill.com/display/book/edcoll/9789004437784/BP000019.xml?language=en>. 

Yann-Huei Song, 'Legal Status of Taiping Island under the United Nations Convention on the Law of the Sea Taiwan’s View' (2015) 3(2) The Korean Journal of International and Comparative Law 115 <https://brill.com/view/journals/kjic/3/2/article-p115_2.xml>.    

ICJ, Counter-Memorial of Colombia, Document Number 154-20170928-WRI-01-00-EN, <https://www.icj-cij.org/node/203358>, archived at <https://archive.is/qh3hD>.  

ICJ, Reply of Romania, Document Number 14701, 22 December 2006, Maritime Delimitation in the Black Sea (Romania v. Ukraine) <https://www.icj-cij.org/node/104734>, archived at <https://archive.md/dDDlG>:"... 5.106. To summarize, recent Ukrainian attempts to create the artificial appearance of conditions supporting human habitation are devoid of any legal effect, in so far as they are undertaken exclusively with this aim. Indeed they constitute an abus de droit, 390 to which Romania has objected. More importantly, they amount to an admission by the Ukrainian authorities that at the time of the Additional Agreement – which was, at the latest the critical date in relation to this case – Serpents’ Island did not have the status which is now belatedly and artificially sought to be conferred on it." - ICJ in its judgment ultimately found it was not necessary to decide whether the island fell within Article 121(2) or (3). 

Robin Churchill and Geir Ulfstein, 'The Disputed Maritime Zones Around Svalbard' in Changes in the Arctic Environment and the Law of the Sea (Brill, 2010) 551, <https://icsid.worldbank.org/sites/default/files/parties_publications/C8394/Claimants%27%20documents/CL%20-%20Exhibits/CL-0026.pdf>, referring to the Norwegian Supreme Court in Public Prosecutor v. Haraldson et al., Rt. 1996 p. 624 :"Under the contemporary law of the sea, as represented in the 1982 UN Convention on the Law of the Sea (UNCLOS),14 a state may claim in respect of its land and insular territory, in addition to a territorial sea, a contiguous zone, an EEZ or exclusive fishing zone (EFZ), and a continental shelf. The one exception is that an EEZ (and probably EFZ) and continental shelf may not be claimed in respect of “rocks which cannot sustain human habitation or economic life of their own.”15 Thus, Norway is entitled (but not required) to claim a contiguous zone, EEZ or EFZ, and continental shelf in respect of Svalbard, other than for those islands in the archipelago that fall into the category of uninhabitable rocks. ... The Norwegian Supreme Court has specifically held that Abel Island, which is an outlying island in the north-eastern part of the archipelago and measures 13.2 km2 , is not an uninhabitable rock within the meaning of Article 121(3) of UNCLOS.16 The only other islands lying at any distance from the main archipelago which possibly require discussion in the context of Article 121(3) are Bear Island and Hope Island. Bear Island is 178 km2 in area and has teams of meteorologists and scientists living on it all the year round, even though they would not qualify as being a permanent population. Even on the most wide-ranging interpretation of Article 121(3), Bear Island would not qualify as an uninhabitable rock. The same would also seem to be true of Hope Island, especially if the view in the Norwegian Supreme Court’s judgment referred to above is accepted, since it is 46 km2 and, like Abel Island, is capable of supporting hunters."

ICJ, Public sitting held on Friday 12 September 2008, at 10 a.m., at the Peace Palace, President Higgins presiding, in the case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Document Number 132-20080912-ORA-01-00-BI <https://www.icj-cij.org/node/102897> (Verbatim Record of Ukraine), archived at <https://archive.is/epkK7>: "39. There can be no question of an “abus de droit” in the present case because Ukraine is under no obligation to refrain from fostering the development of an island that forms part of its territory. As the Court noted in the Nicaragua v. Honduras case, the principle of good faith “is not . . . a source of obligation where none would otherwise exist” ( Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J.Reports1988 , p. 105, para. 94). Ukraine’s activities on Serpents ’ Island are no more than the continuation of its exercise of sovereign authority on the Island ⎯ a sovereignty that Romania does not dispute. 40. An abuse of a State’s rights cannot be presumed, but must be strictly proved by the party alleging it ( Certain German Interests in Polish Upper S ilesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, p. 30). Not only has no proof of abuse of rights been adduced by Romania in this case but also no abuse of rights can occur in a situation, such as this one, where a State has performed legitimate sovereign activities over its territory. ..."

© Jing Zhi Wong, 2023-2024