Senkaku/Diaoyu: Are They Islands?

Abstract

The suspected presence of vast hydrocarbon deposits in the adjacent waters of the Senkaku/Diaoyu island group renders these features intrinsically valued for the maritime boundary to be drawn between Japan and China in the East China Sea. Given that offshore geographical features qualifying as islands in a legal sense may potentially generate extensive areas of seabed jurisdiction in the same manner as continents, the connection between the features’ maritime generating capacity and the associated sovereign rights over surrounding seabed energy resources becomes self-evident. This paper considers the legal status of the disputed Senkaku/Diaoyu islands in the East China Sea and the potential legal implications on the future maritime delimitation between China and Japan. In doing so, it reviews the relevant provisions of the UN Convention on the Law of the Sea (UNCLOS) on the regime of islands and applies this analysis to the case of the Senkaku/Diaoyu features in the East China Sea. It also considers the most recent South China Sea Arbitration Award on the interpretation and application of Article 121 of UNCLOS to the disputed South China Sea insular features. The paper concludes that whilst there has been no certain rule or consensus on how the said provisions of UNCLOS are to be interpreted and applied, it is highly doubtful that an international court or arbitral tribunal would find any of the Senkaku/Diaoyu islands being an island in a legal sense.

Keywords: Law of the Sea, Islands, Rocks, Article 121, East China Sea, South China Sea, Maritime Boundary Delimitation, UNCLOS