The legal regime of the maritime zones around Svalbard

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The legal regime of the maritime zones around Svalbard

An analysis in light of recent developments in international law

Candidate number: 221

Submission deadline: 1 June 2021 Number of words: 39 970

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1 Introduction

1.1 Topic

The topic of this thesis is the legal regime of the maritime zones around the archipelago of Svalbard under international law. With maritime zones, reference is made to the territorial sea, the exclusive economic zone (EEZ) and the continental shelf, as these zones are defined by the United Nations Convention on the Law of the Sea (UNCLOS).¹ This thesis will examine three questions concerning the maritime zones around Svalbard: First, in Chapter 2, whether the islands of Svalbard are entitled to a 200 nautical miles (nm.) EEZ and continental shelf under Art. 121 of UNCLOS.² Second, in Chapter 3, whether other States are precluded from challenging the maritime zones already established around Svalbard under the doctrines of estoppel and acquiescence. Third, in Chapter 4, whether the equal access rights of Art. 2 and 3 of the Svalbard Treaty are applicable to the Fisheries Protection Zone (FPZ) and continental shelf of Svalbard under the rules of UNCLOS.

These research questions have been actualized by the 2016 South China Sea Arbitration (SCSA). The tribunal, which provided the first in-depth interpretation of Art. 121 of UN- CLOS, held that the size of an island is not a relevant factor on its own for whether an island is entitled to maritime zones beyond the territorial sea.³ This interpretation gives cause to discuss whether the Svalbard islands are entitled to an EEZ and continental shelf under Art. 121.

The tribunal also held that the alleged historic rights of China to the natural resources in parts of the EEZ and continental shelf of the Philippines in the South China Sea were incompatible with and had been superseded by UNCLOS under its Art. 311(2).⁴ The tribunal’s reasoning gives cause to discuss whether the equal access rights of Art. 2 and 3 of the Svalbard Treaty would be compatible with and applicable to the FPZ and continental shelf of Svalbard. The research questions will be explained in more detail in section 1.3 below.

1 See Art. 2(1), Art. 55 and Art. 76 of UNCLOS. Norway has not established a contiguous zone around Svalbard;

see Ot.prp. nr. 35 (2002-2003) p. 13.

2 Norway has established a 200 nm. FPZ around Svalbard, which is a less comprehensive zone than an ordinary EEZ under Art. 55 of UNCLOS. However, the legal basis for the FPZ is the same as for an EEZ. Thus, if the Svalbard islands are entitled to an EEZ under Art. 121(3), they would, a fortiori, be entitled to a FPZ.

3 Philippines v. China para. 538.

4 Ibid para. 262.

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The underlying issue of these questions concerns the rights to exploit the natural resources of the maritime areas around Svalbard. This issue stems from the 1920 Svalbard Treaty and the later development of the modern law of the sea, which culminated with the conclusion of UNCLOS in 1982. To place the questions of this thesis into a broader picture, I will first give a brief account of the Svalbard Treaty and the later development of maritime zones under international law, explain the background for the maritime zones established around Svalbard, and outline the dispute over the geographic scope of the Svalbard Treaty.

1.2 Background

The Svalbard Treaty was signed in 1920 at the Paris Peace Conference. Before the Treaty, the land territory of Svalbard was generally regarded as terra nullius – a land belonging to no one.⁵ The signatories undertook to recognize the “full and absolute sovereignty of Norway”

over the archipelago.⁶ This recognition was “subject to the stipulations of the present Trea- ty”.⁷ Two important stipulations are the equal access rights provided by Art. 2 and 3 of the Treaty.⁸ Under these provisions, nationals of the States parties shall “enjoy equally the rights of fishing and hunting”,⁹ as well as to – “on a footing of absolute equality” – enjoy “the exer- cise and practice of all maritime, industrial, mining or commercial enterprises”.¹⁰ The purpose of these stipulations was to preserve aspects of the terra nullius rights enjoyed by nationals from different States on Svalbard prior to the Treaty.¹¹

The Svalbard Treaty has been characterized as a “package-deal”, as Norwegian sovereignty over the islands was recognized, while the nationals of other States retained certain subject- specific equal access rights.¹² Nevertheless, the sovereignty of Norway over Svalbard was to

5 E.g. Ulfstein (1995) p. 37.

6 Art. 1 of the Svalbard Treaty.

7 Ibid.

8 The Svalbard Treaty also contains stipulations concerning wireless telegraphy stations (Art. 4), taxation (Art. 8) and a prohibition on the use of Svalbard for war-like purposes (Art. 9). These stipulations will not be discussed specifically in this thesis.

9 Art. 2(1) of the Svalbard Treaty.

10 Ibid Art. 3(1) and (2).

11 E.g. Ulfstein (1995) p. 49-50.

12 E.g. Anderson (2009) p. 374; Churchill (2020b) p. 291.

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be “full and absolute”, which meant that any question not governed specifically by the Treaty was to be covered by Norwegian sovereignty.¹³

Art. 2 and 3 of the Svalbard Treaty applies “on land and in the territorial waters”.¹⁴ In 1920,

“territorial waters” was recognized as an adjacent maritime area pertaining to the land territory, over which the State exercised sovereignty.¹⁵ The maritime areas beyond the limits of the territorial waters, on the other hand, were considered as the high seas, over which the coastal State exercised no sovereignty or had any sovereign rights.¹⁶ Moreover, there was no concept of a continental shelf pertaining to the coastal State in 1920.¹⁷ Consequently, the Svalbard Treaty does not deal with these zones.

The law of the sea concerning maritime zones developed gradually from the 1950s to the 1980s. In 1969, the International Court of Justice (ICJ) held that Art. 2(1) of the 1958 Con- vention on the Continental Shelf, which provided that the costal state “exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources”, constituted customary international law.¹⁸ This rule of customary international law was later codified by Article 77(1) of UNCLOS in 1982.¹⁹ The recognition of the EEZ developed more gradually based on evolving State practice.²⁰ In 1974, the ICJ recognized that coastal States had exclusive jurisdiction over fisheries within 12 nm. of its baselines, but did not fully accept Iceland’s claim for a 50 nm. zone.²¹ However, the recognition of a 200 nm.

coastal State EEZ became accepted as a matter of customary international law during the third

13 E.g. Fleischer (2007) p. 5; Anderson (2009) p. 374.

14 See Art. 2(1) and 3(2), which refers to “their territorial waters”. Art. 3(1) uses a different formulation, as it refers to the “waters, fjords and ports of the territories specified in Article 1”. Both “territorial waters” and

“waters” is assumed to be synonymous to the territorial sea as it is defined under international law, see e.g.

Ulfstein (1995) p. 411 and Ot.prp. nr. 35 (2002-2003) p. 12.

15 E.g. Norway v. Sweden p. 4 and Barnes (2017) p. 30.

16 E.g. Guilfoyle (2017) p. 676. However, there were diverging views on the limits of the territorial waters in 1920, which could explain why the drafters chose not to include any express reference to the limit of the territorial waters in the Svalbard Treaty, see e.g. Fleischer (2007) p. 8.

17 Parson (2017) p. 589.

18 North Sea Continental Shelf cases paras. 19, 39 and 43.

19 However, the definition and outer limits of the continental shelf was only established through UNCLOS, see e.g. Parson (2017) p. 590.

20 Evans (2018) p. 658.

21 United Kingdom v. Iceland para. 52.

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UNCLOS conference, which lasted from 1973 to 1982.²² This process culminated with the conclusion of UNCLOS, which established the rights of the coastal State to an EEZ as a matter of treaty law.²³

When it became clear during the third UNCLOS conference that the participants agreed on a 200 nm. EEZ under coastal State jurisdiction, Norway passed Act of 17 December 1976 relating to the Economic Zone of Norway, establishing a 200 nm. EEZ around the coast of the mainland. Norway initially wished to establish an EEZ around Svalbard as well, but after re- ceiving no support from its American and Western European allies, Norway chose instead to establish a FPZ around Svalbard by Royal Decree of 3 June 1977.²⁴

In terms of geographic scope, the FPZ was equivalent to an ordinary 200 nm. EEZ. However, in practice, the FPZ was a compromise, as it factually implemented certain aspects of the Svalbard Treaty, without legally recognizing the Treaty’s application to the zone.²⁵ States, whose nationals had fished in the area for the last 10 years before the FPZ was established, were granted access to fisheries based on yearly quotas.²⁶ Norway has continued to apply this fisheries regime around Svalbard since 1977.²⁷ However, Norway has maintained that it is not obliged to give other States access, and that the FPZ may be transformed into a normal EEZ.²⁸ As the legal basis for the FPZ under international law is equivalent to that of an ordinary EEZ, it must be assumed that the provisions of UNCLOS governing the EEZ – as a point of depar- ture – applies equally to the FPZ. The important difference is that Norway has not yet given it full effect as an ordinary EEZ.²⁹

22 Proelss (2017) p. 413-415.

23 Evans (2018) p. 658.

24 Pedersen (2020) p. 225.

25 Ibid. The purpose of the FPZ is to “conserve the living resources of the ocean and regulate fisheries and hunting”, see § 1 of Royal Decree of 6 March 1977.

26 Pedersen (2020) p. 225.

27 While the FPZ has been mostly accepted in practice, there have been several examples of Russian and EU fishing vessels not complying with Norwegian regulations or accepting enforcement measures. A recent ex- ample is the EU, which in January 2021 unilaterally accorded itself a larger quota in the FPZ than the one given to it by Norway; see Bye (2021).

28 See § 2 of Royal Decree of 3 June 1977, which states that § 3 of the Act of 17 December 1976 relating to the Economic Zone of Norway “for the time being” is not applied to the FPZ of Svalbard.

29 E.g. Rt. 1996 p. 624 at p. 630.

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These developments have given rise to two disputes concerning the maritime zones around Svalbard. The first disagreement concerns whether Norway may establish a FPZ/EEZ and claim a continental shelf from the Svalbard islands. Some States parties to the Svalbard Treaty and UNCLOS have argued that the areas beyond the territorial waters of Svalbard are ‘international waters’, implicitly asserting that Norway is not entitled to establish an FPZ or claim a continental shelf from these islands.³⁰ While most States parties to the Svalbard Treaty and UNCLOS appears to have accepted the already established maritime zones, a few States parties have shown an ambiguous and unclear approach towards this issue.³¹ This disagreement could gain renewed actuality due to the SCSA, which could leave the question of whether Norway may establish maritime zones from the Svalbard islands under Art. 121 of UNCLOS more open.

The second disagreement relates to the geographic scope of the Svalbard Treaty. Some States parties argues that the equal access rights of Art. 2 and 3 should apply to the FPZ and continental shelf by analogy.³² Norway, which has consistently rejected this view, argues that the stipulations should be interpreted literally and restrictively in accordance with the “ordinary meaning” under the treaty interpretation rules of the Vienna Convention on the Law of Trea- ties (VCLT).³³ Those in favour of extending the application of the Treaty to the FPZ and continental shelf argues, inter alia, that the “object and purpose” and package-deal nature of the Treaty should be emphasized, rather than relying on a restrictive textual approach.³⁴ These conflicting views thus gives rise to the research questions of this thesis.

1.3 Research questions

The first research question concerns whether the islands of Svalbard are entitled to an EEZ and continental shelf under Art. 121 of UNCLOS.

This provision governs the entitlement of islands to maritime zones. Under the main rule of the second paragraph, an “island” – i.e. a feature meeting the definition of the first paragraph – is entitled to a full set of maritime zones in the same way as other land territory. However,

30 Pedersen (2008) p. 245-247.

31 Especially Russia and Spain, see further on this in Chapter 3.

32 Churchill (2020b) p. 267.

33 Meld. St. 32 (2015-2016) p. 20.

34 Churchill (2020b) p. 285.

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subject to the third paragraph, “[r]ocks which cannot sustain human habitation or economic life of their own shall have no [EEZ] or a continental shelf”. These “[r]ocks” are thus only entitled to a 12 nm. territorial sea and 24 nm. contiguous zone.³⁵ This exception gives rise to the question of whether the islands of the Svalbard archipelago are “[r]ocks which cannot sustain human habitation or economic life of their own”.

As mentioned, this question has been actualized by the SCSA. One of the questions considered by the tribunal was whether certain islands in the South China Sea were “[r]ocks” under Art.

121(3). In its detailed interpretation of Art. 121(3), the tribunal held, inter alia, that the size of an island was not a relevant factor of its own for determining whether an island is a ‘rock’, and that only islands with the capacity to sustain a “stable community of people” would satis- fy the requirement of “human habitation”.³⁶ One of the purposes of the first research question is to assess whether this interpretation could affect the entitlement of the Svalbard islands to maritime zones.³⁷

The thesis will examine the status of Spitsbergen, Bear Island and Hope Island of the Sval- bard archipelago under Art. 121. These islands have the most important role for generating the maximum scope of the FPZ and continental shelf of Svalbard. If these islands are encompassed by the exception of the third paragraph, the waters and continental shelf beyond 12 nm. from the baselines of the islands would be subject to the high seas³⁸ and the ‘Area’³⁹ regime of UNCLOS, respectively, under Art. 121. This question is accordingly of great economic and strategic significance for Norway and other States with interests in these waters.

The question will be discussed in Chapter 2.⁴⁰

The second research question concerns whether other States may challenge the maritime zones that have been established around Svalbard, regardless of their status under Art. 121.

Having in mind that the FPZ has been in place for more than 40 years, and as Norway is in the

35 Supra note 1.

36 Philippines v. China paras. 538, 542-543.

37 E.g. Churchill (2020b) p. 279.

38 See Art. 86 of UNCLOS.

39 Ibid. Art. 1(1) and Part XI.

40 Chapter 2 will not discuss specifically whether the Svalbard Treaty as lex specialis to UNCLOS prevents Norway from establishing maritime zones around Svalbard; a point of view raised by Russia in the past, see e.g. Vylegzhanin (2007) p. 57; Ulfstein (1995) p. 419.

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process of establishing the “final and binding” limits for the continental shelf under Art. 76(8) of UNCLOS, there is reason to ask whether other States would be precluded from challenging the maritime zones generated from these islands under the doctrines of estoppel and acquiescence. This question will be discussed in Chapter 3.

The third research question concerns whether the equal access rights of Art. 2 and 3 of the Svalbard Treaty are applicable to the FPZ and continental shelf of Svalbard under Article 311 of UNCLOS. The question concerns the geographic scope of Art. 2 and 3. At the outset, this concerns the interpretation of Art. 2 and 3 under the treaty interpretation rules of Art. 31 of VCLT. However, the “ordinary meaning” of the terms of Art. 2 and 3 in their “context” and in light of their “object and purpose” may give rise to different interpretations. While this has been discussed extensively by commentators, there is hardly any unequivocal answer to the question.⁴¹ For the purposes of this thesis, it is therefore assumed that Art. 2 and 3 may be interpreted to apply by analogy to the FPZ and continental shelf under Art. 31 of VCLT.

Under that assumption, the question will focus specifically on whether Art. 2 and 3 of the Svalbard Treaty are applicable to FPZ and continental shelf under Art. 311 of UNCLOS. The second paragraph of Art. 311 sets out that rights and obligations arising from “other agreements” shall be unaltered if they are “compatible with this Convention” and do not “affect the enjoyment by other States Parties of their rights or the performance of their obligations under this Convention”. This clause may be understood to give priority to UNCLOS over incompatible rights and obligations arising from earlier agreements. The question is therefore whether Art. 2 and 3 would be incompatible with UNCLOS and therefore inapplicable to the FPZ and continental shelf of Svalbard under Art. 311(2).

This question has also been actualized by the SCSA. In reaching the conclusion that the al- leged historic rights of China were incompatible with and thus had been superseded by UN- CLOS, the tribunal emphasized that the pre-existing rights of other States to the natural resources in the EEZ and continental shelf of another coastal State would generally be incompatible with the exclusive sovereign rights of this coastal State under UNCLOS.⁴² This rea-

41 E.g. Fleischer (1983), Churchill (1985), Ulfstein (1995), Anderson (2007), Fleischer (2007), Vylegzhanin (2007), Churchill (2010), Ørebech (2017) and Churchill (2020b).

42 Philippines v. China paras. 202-278.

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soning gives cause to ask whether a subsequent extension of the equal access rights arising from Art 2 and 3 of the Svalbard Treaty to the FPZ and continental shelf would be compatible with UNCLOS and how a possible incompatibility could affect the applicability of these provisions.⁴³ This question will be discussed in Chapter 4.

1.4 Methodological challenges

In order to answer the first research question, the correct interpretation of Art. 121(3) must be established. The text of the article has been criticized for being vague, and it can give rise to several interpretations.⁴⁴ An additional challenge is the lack of a plurality of authoritative in- terpretative sources concerning this provision. To this date, the SCSA represents the only full- fledged interpretation of this article by an international court or tribunal. Even though this award is only formally binding on the parties, it may carry considerable persuasive weight and thus influence the practice of other States and international courts and tribunals in future cases concerning this provision.⁴⁵

However, the tribunal’s interpretation of Art. 121 has been subject of much debate. While some commentators have viewed the award as an important source for clarifying Art. 121,⁴⁶ others have questioned the legal reasoning and are doubtful as to whether the award have clar- ified the interpretation of Art. 121.⁴⁷ An important part of the analysis under this research question will be to consider whether the SCSA’s interpretation of Art. 121(3) is correct and consistent with other relevant sources of law.

The assessment of whether Spitsbergen, Bear Island and Hope Island could sustain “human habitation” and “economic life of their own” under Art. 121(3) brings about methodological challenges of its own. As will be set out further below, these requirements necessitates a clos- er examination of the natural conditions of the islands. A particular challenge has been finding sufficient comprehensive sources on the natural conditions of these islands. I have primarily

43 E.g. Churchill (2020b) p. 282.

44 This is apparent in how many commentators have interpreted this provision differently; see e.g. Van Dyke (1988), Kwiatkowska (1990), Kolb (1994), Prescott (2005), Franckx (2014), Elferink (2016), Talmon (2017) and Churchill (2019).

45 E.g. Churchill (2019) para. 23.

46 E.g. Oral (2017) p. 364.

47 E.g. Elferink (2016), Talmon (2017), Tanaka (2018), Song (2018), Nordquist (2018) Roach (2018) and Gau (2019).

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employed encyclopaedias providing a general, yet somewhat superficial, insight into the conditions on these islands. The assessment of whether the islands meet these requirements must therefore be read with this reservation.

The second research questions, which concerns preclusion under the doctrines of estoppel and acquiescence, depends to some extent on the official positions other States have taken (or not taken) on this issue A challenge in this regard has been that most of the diplomatic notes sent by other States to Norway are exempt from the public. This question must therefore be read with the reservation that not all the positions taken by States may have been available for this thesis, which is a factor that could influence the conclusions reached. However, Professor Torbjørn Pedersen, who has been given access to most of these diplomatic notes by the Nor- wegian Ministry of Foreign Affairs, has conducted thorough examinations of the notes and their content, and his works will be used extensively in assessing this question.⁴⁸

The third research question concerns the applicability of Art. 2 and 3 of the Svalbard Treaty to the FPZ and continental shelf. While this question has not previously been examined by any court, domestic or international,⁴⁹ commentators have discussed extensively whether the provisions may be interpreted to apply to the FPZ and continental shelf under Art. 31 of VCLT.⁵⁰ However, the role of Art. 311 of UNCLOS for the interpretation of Art. 2 and 3 of the Svalbard Treaty has not been the subject of any in-depth analysis in the literature.⁵¹ As this question primarily concerns the role of Art. 311 of UNCLOS vis-à-vis earlier legal rules, the SCSA tribunal will be an important source in clarifying the scope, applicability and legal effects of this provision towards the present research question.

48 Pedersen (2008), Henriksen (2009), Pedersen (2009a), Pedersen (2009b), Pedersen (2020).

49 The Norwegian Supreme Court has previously refrained from interpreting the geographic scope of these provisions, see Rt. 1996 p. 624, Rt. 1996 p. 654, Rt. 2006 p. 1498, Rt. 2014 p. 272 and HR-2019-282-S.

50 Supra note 41.

51 E.g. Fleischer (2007) p. 11, who argues that Art. 2 and 3 of the Svalbard Treaty would be incompatible with UNCLOS in the FPZ and continental shelf under Art. 311(2), but without assessing the question in any detail.

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2 Are the Svalbard islands entitled to maritime zones?

2.1 Introduction

The question in this chapter is whether Spitsbergen, Bear Island and Hope Island of the Sval- bard archipelago are entitled to an EEZ and continental shelf under Art. 121 of UNCLOS.

These islands meets the definition of an “island” under Art. 121(1), i.e. “a naturally formed area of land, surrounded by water, which is above water at high tide”. The question is whether the islands are “[r]ocks which cannot sustain human habitation or economic of their own”

under Art. 121(3), as islands encompassed by this exception “shall have no [EEZ] or continental shelf”.

The prevailing view has been that the size of Spitsbergen, Bear Island and Hope Island dis- qualified them from being “[r]ocks” under Art. 121(3).⁵² However, due to the line of reasoning in the SCSA, this view could now be open for revision.⁵³ An important question in the following is therefore how Art. 121(3) should be interpreted in light of the SCSA.

The “ordinary meaning” of the terms of Art. 121(3) in their “context” and in light of the “object and purpose” is unclear. As no court or tribunal had provided any explicit interpretation of this provision prior to the SCSA in 2016, the award will be an important point of reference in the following. However, there are a few cases from international dispute settlement bodies concerning maritime delimitation and the prompt release of vessels that may illustrate how these terms have been understood prior to the SCSA.⁵⁴ Moreover, as many commentators have written extensively on this provision, their interpretations will be an important reference point in the following analysis.⁵⁵ State practice could also be a relevant source on how this provision should be understood.⁵⁶

In section 2.2, Art. 121(3) will be interpreted. Thereafter, in section 2.3, I will discuss whether the islands of Spitsbergen, Bear Island and Hope Island specifically are entitled to an EEZ and

52 E.g. Fleischer (1978) p. 252, Churchill (1992), p. 39, Ulfstein (1995) p. 418-421, Churchill (2010) p. 559.

53 E.g. Churchill (2020b) p. 279; Jensen (2020) p. 98.

54 E.g. Conciliation Commission, Nicaragua v. Colombia, Denmark v. Norway (1993), Qatar v. Bahrain, Sey- chelles v. France, Russian Federation v. Australia.

55 Supra note 44.

56 Whether State practice has established a subsequent “agreement” on the interpretation of “[r]ocks” pursuant to Art. 31(3)(b) of VCLT will be discussed specifically in section 2.2.1.4.

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continental shelf under Art. 121 in light of the preceding interpretation. The conclusions reached will be summarized in section 2.3.4.

2.2 Article 121(3) of UNCLOS 2.2.1 “Rocks”

2.2.1.1 A requirement of its own?

The first question is whether “[r]ocks” should be understood as a requirement of its own or as a descriptive term for islands which cannot sustain “human habitation” or “economic life of their own”.⁵⁷

The article employs two distinct terms: “island” in paragraph 1 and “[r]ocks” in paragraph 3.

It is evident from the logical structuring and context of Art. 121 that a ‘rock’ under paragraph 3 necessarily must be an “island” under paragraph 1, as features not meeting the definition of an island not even are entitled to a territorial sea. “Rocks” could therefore be characterized as a sub-category of the broader category “island” under the first paragraph.

However, the structuring of Art. 121 does not give an answer as to whether every island

“which cannot sustain human habitation or economic life of its own” is a ‘rock’ under the third paragraph. One possible interpretation is that “[r]ocks” refers to a specific category of islands, and that the status of an island as a ‘rock’ is unrelated to the criteria immediately following that term. The choice of the term “[r]ocks” specifically in the third paragraph points in this direction. Another possible interpretation, however, is that the criteria immediately following the term ‘rock’ determines whether the island in question is a ‘rock’, i.e. that islands

“which cannot sustain human habitation or economic life of their own” are “[r]ocks”.

On the one hand, it could be argued that “human habitation” and “economic life of their own”

should be understood as the defining criteria of ‘rock’, in the same way as “island” is defined by the criteria following that term in the first paragraph. On the other hand, the first paragraph provides that an “island is a naturally formed area of land, surrounded by water, which is above water at high tide” (emphasis added). The third paragraph does not provide that a rock is a feature which does not meet the socio-economic requirements.

57 These terms will be referred to as the socio-economic requirements in the following.

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Conversely, the term “which” suggests that these requirements must be attributable to the

‘rock’ in question. “[W]hich” does not imply that the ‘rock’ is a feature which cannot sustain human habitation or an economic life of their own. If the drafters intended the socio-economic requirements to define what a ‘rock’ is, one could ask why the terms “which” and “[r]ocks”

were employed specifically. This suggest that whether an island is a ‘rock’ is unrelated to the socio-economic requirements.

The last eight words of Art. 121(3) also supports this understanding: the legal effect of the

‘rock’ not sustaining either “human habitation” or “economic life of [its] own” is that it “shall have no [EEZ] or continental shelf”. When seen in connection with the second paragraph, and the term “which”, this must be understood to mean that a ‘rock’ which can sustain “human habitation” and “economic life of their own” shall have an EEZ and continental shelf.⁵⁸ Ren- dering “[r]ocks” into a descriptive term for features not meeting the socio-economic requirements would remove this distinction.

Even though the ordinary meaning of the term “[r]ocks” is unclear, it does not refer to whether a maritime feature may sustain human habitation or an economic life. As will be discussed further below, one could argue that the ordinary meaning of the term “[r]ocks” in a maritime context generally refers to rocky formations, protrusions and cliffs in the ocean. At the outset, the ordinary meaning suggests that ‘rocks’ should be understood as a specific category of islands, independently of whether the island meets the socio-economic requirements. This would mean that an “island”, which is not also a ‘rock’, falls outside the exception in the third paragraph.

In setting out the terminology of Art. 121(3), the SCSA tribunal referred to features meeting the criteria of Art. 121(1), i.e. ‘islands’, as “high-tide features”. The term “[r]ocks” was used descriptively to refer to all high-tide features which “cannot sustain human habitation or economic life of their own”. Features that were not ‘[r]ocks”, were referred to as “fully entitled islands”.⁵⁹ The tribunal did thus not single out “[r]ocks” as a requirement of its own. This must be seen on the background that the tribunal later held that both geology and size were

58 E.g. Talmon (2017) p. 871.

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irrelevant for determining whether an island is a ‘rock’, which practically rendered “[r]ocks”

into a descriptive term for features not meeting the socio-economic requirements of Art.

121(3).⁶⁰

However, in line with the reasoning above, one could question whether “[r]ocks” should be dismissed as a requirement of its own under Art. 121(3). The question is whether the object and purpose of Art. 121(3) may shed some light on this issue.

The SCSA tribunal inferred from the drafting history that the object and purpose of Art.

121(3) was to prevent “encroachment on the international seabed reserved for the common heritage of mankind” and to avoid “the inequitable distribution of maritime spaces under national jurisdiction”.⁶¹ An interpretation where islands not meeting the socio-economic re- quirements of Art. 121(3) in general are disentitled from an EEZ and continental shelf would be consistent with this purpose, as only inhabitable islands would generate an EEZ and continental shelf. Under this interpretation, States would be barred from encroaching upon the

“common heritage of mankind” simply by being in possession of sizeable but uninhabitable islands.

However, it may be discussed whether this is a correct understanding of the object and purpose of Art. 121. An important principle set out in Art. 121(2) is that the maritime zones of islands are “determined in accordance with the provisions of this Convention applicable to other land territory” – “[e]xcept as provided for in paragraph 3”. The main rule – from which Art. 121(3) is a narrow exception – is that islands are entitled to maritime zones on equal terms as other land territory.⁶² Rendering the exception concerning “[r]ocks” into a descriptive term for all islands not meeting the socio-economic requirements would be an affront to this principle.

Guillaume argues that the “teleological interpretation of the Convention does not correspond to reality”, as the drafting history makes clear that Art. 121 was a compromise between the States wishing to “maintain the traditional rule recognizing the same rights to islands as to

60 Ibid para. 479 and 538.

61 Ibid para. 535.

62 Talmon (2017) p. 880 argues that Art. 121(3) «is to be construed narrowly» on this background.

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continental landmasses” and States “which feared that their maritime spaces would be re- duced because of the islands belong to their neighbours”.⁶³ As these conflicting views formed the basis of Art. 121(3), Guillaume argues that the object and purpose should be understood on that background.⁶⁴

That the provision was a compromise between these different views is substantiated by the many proposals to expand or reduce the scope of Art. 121(3) after the draft proposal – which became the final text of Art. 121(3) – had been proposed. All these proposals were rejected in favour of the unclear language of Art. 121(3).⁶⁵ As neither of these groups of States gained full recognition for their view, the object and purpose of Art. 121(3) should be understood to both prevent the unjustifiable encroachment of the “common heritage of mankind” and to protect the principle of islands having the same entitlements to maritime zones as other land territory.⁶⁶

In my view, the object and purpose would be consistent with an interpretation where only a specific category of islands is considered “[r]ocks”. This would harmonize better with the term “[r]ocks”, whose ordinary meaning is not related to the socio-economic requirements.

The context further supports this interpretation, as a distinct term was chosen for the third paragraph, which clearly is an exception to the main rule of islands being entitled to a full set of maritime zones. This means that only islands which are “[r]ocks” and which “cannot sus- tain human habitation or economic life of their own” are disentitled from generating an EEZ and continental shelf.⁶⁷ The question is then how to determine what a ‘rock’ is under Art.

121(3).

63 Guillaume (2021).

64 Ibid.

65 Franckx (2014) p. 113.

66 See further on the drafting history of Art. 121(3) in section 2.2.1.3.

67 E.g. Talmon (2017) p. 871.

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2.2.1.2 Is there any geological/geomorphological criteria?

The ordinary meaning of the term ‘rock’ has certain connotations to geology and composition.⁶⁸ A question in connection thereof is whether the term imposes any geological/geomorphological criteria.

Even though “[r]ocks” could refer exclusively to islands composed of solid rock, it may also linguistically refer to islands that are composed of other materials.⁶⁹ The ordinary meaning of the term could therefore give rise to different interpretations. As Art. 121(3) is an exception from the main rule of treating islands as other land territory, one could argue that a restrictive approach should be taken, i.e. that the term imposes geological/geomorphological criteria. On the other hand, the purpose of preventing encroachment could suggest that “[r]ocks” does not impose any geological/geomorphological criteria, as this would enable any island composed of other materials than solid rock to generate vast maritime spaces.⁷⁰

This question was briefly touched upon by the ICJ in Territorial and Maritime Dispute (Nica- ragua v. Colombia). In deciding whether the feature QS 32 was an “island” under Art. 121(1), the Court held that “[i]nternational law defines an island by reference to whether it is “naturally formed” and whether it is above water at high tide, not by reference to its geological composition”, and that “[t]he fact that the feature is composed of coral is irrelevant”.⁷¹ As this statement concerned the first paragraph of Art. 121, it is not directly relevant for the question of whether “[r]ocks” under the third paragraph has any connotations to geology. However, the Court later concluded that QS 32 was a ‘rock’, even though it was composed of coral.⁷² The Court thus effectively implied that the geological/geomorphological composition of a ‘rock’ is irrelevant under Art. 121(3).⁷³

68 In the Oxford English Dictionary (2021), the primary definition of ‘rock’ is “[a] large rugged mass of hard mineral material or stone forming a cliff, crag or other natural feature on land or in the sea”.

69 Ibid. See also Prescott (2005) p. 62; Philippines v. China para. 480.

71 Nicaragua v. Colombia para. 37.

72 Ibid para. 183.

73 However, it should be noted that the parties did not dispute that QS 32 was a ‘rock’ under Art. 121(3).

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The SCSA tribunal held that “[r]ocks” does not impose any geological/geomorphological cri- teria.⁷⁴ The tribunal argued that the dictionary meaning of the term “did not confine the term so strictly”, and found support for this conclusion in the abovementioned Territorial and Mar- itime Dispute (Nicaragua v. Colombia).⁷⁵ The tribunal further argued that imposing a geological/geomorphological criterion would lead to “an absurd result”, as islands not composed of solid rock always would generate an EEZ and continental shelf, “even if they were incapable of sustaining human habitation or an economic life of their own”. This would mean that “less stable and less permanent features” would be entitled to greater entitlements than those composed of solid rock. According to the tribunal, this could not have been the purpose of Art.

121(3).⁷⁶

That the geological/geomorphological composition of an island is irrelevant could be seen as inconsistent with the ordinary meaning of “[r]ocks”.⁷⁷ On the other hand, imposing geological/geomorphological criteria would lead to unreasonable or absurd results, in which, inter alia, sand cays and coral reefs by default would be entitled to huge maritime areas, regardless of their size, habitability or economic prospects. This result would be inconsistent with the purpose of preventing encroachment.⁷⁸ The principle of islands being equally entitled to maritime zones as other land territory does not apply with any particular strength to this question.

More importantly, interpreting the term not to impose any geological/geomorphological criteria is not irreconcilable with the textual meaning of “[r]ocks”.⁷⁹ Against this background, it is concluded that the geological/geomorphological composition of an island is irrelevant for its classification as a ‘rock’ under Art. 121(3).

2.2.1.3 Is size a relevant factor?

The question is then whether the term imposes any other criteria that distinguishes “[r]ocks”

from islands in general under Art. 121(1). While the ordinary meaning of the term is not clear, there is reason to argue that the term must impose some criteria that distinguishes it conceptu-

75 Ibid para. 480. However, the SCSA tribunal did not take into consideration that the statement in that case concerned the first paragraph of Art. 121 or that neither of the parties disputed that QS 32 was a ‘rock’.

76 Ibid para. 481.

77 Prescott (2005) p. 62.

79 Ibid para. 480.

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ally from “island”, as it has been held to refer to a specific category of islands. The question here is whether size is a relevant factor for determining whether an island is a ‘rock’.

The ordinary meaning of “[r]ocks” in a maritime context generally refers to rocky formations, protrusions and cliffs in the ocean.⁸⁰ Even though size is not the principal distinguishing feature of a ‘rock’ in line with this understanding, there is reason to argue that only smaller islands reasonably could be characterized as “[r]ocks”. This understanding would be consistent with the purpose of preventing encroachment, as small islands – “[r]ocks” – would be exempt from generating maritime zones beyond the territorial sea, unless the rock in question satisfies the socio-economic requirements of Art. 121(3), at which point this purpose would not apply with any particular strength. At the same time, this would resonate well with the principle of treating islands as other land territory, as any island above the threshold size would be entitled to a full set of maritime zones.

The opposite conclusion would mean that large but uninhabitable islands would be disentitled from generating an EEZ and continental shelf, even though the island in question not reasonably could have been characterized as a ‘rock’ under the ordinary meaning of that term. This conclusion would arguably be contrary to the principle of treating islands as other land territory.

To my knowledge, there is only one case in which size has been explicitly held to be a rele- vant factor under Art. 121(3). The Abel Island case, which was issued by the Norwegian Su- preme Court in 1996, concerned whether two Icelandic fishing vessels had fished illegally in the FPZ around Svalbard.⁸¹ One of the questions was whether the FPZ around Svalbard could be delimited from the baselines of the 13 km²Abel Island – which had no habitation or economic life of its own – under Art. 121. The Norwegian Supreme Court concluded that the island fell outside of Art. 121(3), as the size “alone is sufficient to rule out that it is a “rock”

according to the exemption in Article 121 paragraph 3”, and that “State practice seems to

80 The Russian version of UNCLOS uses the words «скалы», plural of «скала» which is defined as “a cliff with steep sides”, as cited in Guillaume (2021) footnote 2. The Norwegian (unauthentic) version uses the word

«klipper», which is defined by a Norwegian dictionary as a «barren mountain protrusion in the sea» (my translation); see NAOB (2021).

81 Rt. 1996 p. 624 at p. 637.

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clearly support this reading”.⁸² The reasoning of the court suggests that size is a relevant factor, and that islands of larger or similar size falls outside the scope of Art. 121(3).⁸³ However, as a single decision from a domestic court, the case has limited precedent value on its own.

A few cases from international dispute settlement bodies have dealt with the status of islands in the context of delimitation. While neither of these bodies have interpreted Art. 121(3) explicitly, their reasoning and the results reached may provide clues as to whether size has been considered as a relevant factor.

Two of these cases concerned the Norwegian island of Jan Mayen – a rather small volcanic island of about 373 km² in the Norwegian Sea.⁸⁴ The first of these is the 1981 Iceland-Norway Conciliation Commission, which was set down to make recommendations on the dividing line for the continental shelf area between Jan Mayen and Iceland. After giving a brief description of Jan Mayen’s geography, geology, present inhabitation and activities taking place on the island, the Commission concluded that “[i]t follows from the brief description of Jan Mayen in Section III of this report that Jan Mayen must be considered an island. Paragraphs 1 and 2 of Article 121 are thus applicable to it”.⁸⁵

The Commission held that Jan Mayen was entitled to an EEZ and a continental shelf under Art. 121, but without considering specifically if the exception in paragraph 3 applied. As the reasoning is not set out in more detail, it is difficult to ascertain which factors the Commission considered decisive in its assessment. The size of Jan Mayen was specifically mentioned in the brief description in Section II of the report, but so was a number of other factors, including the geology, present inhabitation and meteorological research station on the island.

However, as the Commission did not discuss whether Jan Mayen could sustain “human habitation” or “economic life of [its] own” – which is far from certain, given the barren and in- hospitable nature of the island – it could possibly be inferred from the reasoning that the size of Jan Mayen was considered decisive. Even though it is difficult to draw any clear-cut con-

82 Ibid p. 637.

83 Talmon (2017) p. 871.

84 Conciliation Commission (1981) p. 9.

85 Ibid p. 10.

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clusions from the reasoning of the Commission, the result would be reconcilable with the no- tion that size is a relevant factor under Art. 121(3).

The status of Jan Mayen under Art. 121 was also touched upon by the ICJ in the 1993 Mari- time Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway). In that case, Denmark did not argue that Jan Mayen was not entitled to an EEZ or continental shelf, but that the island was “small in relation to the opposite coasts of Greenland, and that it cannot sustain and has not sustained human habitation or economic life of its own”. In Den- mark’s view, these factors required an adjustment or shifting of the median line.⁸⁶ Denmark thus effectively argued that Jan Mayen did not meet the criteria of Art. 121(3), even though it did not contest the entitlement of this island to an EEZ and continental shelf under that provision.

The Court formulated this as a question of whether “the size and special character of Jan Ma- yen’s population, and the absence of locally based fishing, are circumstances which affect the delimitation”.⁸⁷ After emphasizing that the attribution of maritime areas to the territory of a State “is a legal process based solely on the possession by the territory concerned of a coast- line”, the Court held that “there is no reason to consider either the limited nature of the population of Jan Mayen or socio-economic factors as circumstances to be taken into account”.⁸⁸

As Denmark did not argue that Jan Mayen was not entitled to maritime zones beyond the territorial sea under Art. 121(3), and as the case concerned delimitation, the relevance of these statements are somewhat limited. That the Court did not discuss the status of Jan Mayen pro- prio motu could imply that the island was considered to fall outside the scope of Art. 121(3) because of its size, as it is questionable whether it actually may sustain “human habitation”

and “economic life of [its] own”.⁸⁹ However, as with decision by the 1981 Commission, it is difficult to draw any clear conclusions from the Court’s reasoning.

86 Denmark v. Norway (1993) para. 60.

87 Ibid para. 80.

88 Ibid.

89 E.g. Churchill (1994) p. 25; Tanaka (2017) p. 374.

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Another case concerning delimitation of some relevance is the 2001 Case concerning Mari- time Delimitation (Qatar v. Bahrain). The case concerned, inter alia, the role of the 48 m²cay Qit’at Jaradah to the delimitation between Qatar and Bahrain in the Persian Gulf. The Court held by reference to Art. 121(2) that “islands, regardless of their size, in this respect enjoy the same status, and therefore generate the same maritime rights, as other land territory”.⁹⁰ The Court held that the cay was an island under Art. 121(1), but did not find it necessary to consider whether the cay was encompassed by Art. 121(3).⁹¹ That the Court did not raise this issue proprio motu could be read as a recognition that the size of the cay – which clearly could not have sustained “human habitation” or “economic life of [its] own” – excluded the application of Art. 121(3).⁹²

Two cases by the International Tribunal for the Law of the Sea (ITLOS), “Monte Confurco”

and “Volga”, which concerned the prompt release of vessels taken under arrest in the EEZs of France and Australia, respectively, also warrant some attention in this assessment.

The “Monto Confurco” case concerned the prompt release of a vessel of the Seychelles that had been arrested in the EEZ established by France around the Kerguelen Islands in the Ant- arctic. The largest island of the archipelago – Grande Terre – has a size of about 6675 km². Regardless of its large size, it could be questioned whether this barren island would meet the socio-economic requirements of Art. 121(3). The parties did not raise the question of whether the islands were entitled to an EEZ under Art. 121, and the majority of the tribunal did not challenge the EEZ.

However, Judge Vukas held in a separate declaration that he disassociated himself from all statements or conclusions based on the proclaimed EEZ of Kerguelen Islands, as it was “high- ly questionable whether the establishment of an exclusive economic zone off the shores of these “uninhabitable and uninhabited” islands […] is in accordance with the reasons which motivated [the third UNCLOS conference] to create that specific legal régime” and “with the

90 Qatar v. Bahrain para. 185.

91 Ibid.

92 E.g. Franckx (2014) p. 121.

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letter and spirit of the provisions”.⁹³ Judge Vukas must thus have considered size as a more or less irrelevant factor under Art. 121(3), as Grande Terre is a rather large island.

The “Volga” case concerned the prompt release of a Russian vessel arrested in the EEZ established around Heard Island and McDonald Islands of Australia in the Antarctic. Heard Island is about 368 km²large, comparable to Jan Mayen, while the McDonald Islands are about 2.5 km²large. As in “Monte Confurco”, the majority of the tribunal did not question the status of these islands under Art. 121(3), and neither was this issue raised by any of the parties. Like- wise, Judge (then Vice-President) Vukas held in a separate declaration that the reasons which motivated the establishment of the EEZ regime did not exist in relation to uninhabited islands like Heard Island and McDonald Islands.⁹⁴ Vukas noted specifically that the EEZs in this case had been established “off the coasts of two uninhabited islands which are much smaller than the Kerguelen Island” (emphasis added).⁹⁵ When seen in connection with his previous separate opinion, this would suggest that Vukas did not consider size to be entirely irrelevant, but as a less important factor than the socio-economic requirements.

On the one hand, these two cases support that size is a relevant and perhaps even decisive factor under Art. 121(3), as the majority of the tribunals did not question the entitlement of these “uninhabitable” islands under Art. 121(3). Judge Vukas did not receive any support from the other judges in their separate and dissenting opinions. Moreover, in his dissenting opinion Judge Anderson specifically disagreed with Vukas in the “Volga” case, as he stated briefly that Heard Island “is cleary an island and not a rock” and that “an EEZ can be validly established”.⁹⁶

However, as these cases concerned the prompt release of vessels under UNCLOS, and as neither of the parties argued that the islands were disentitled to an EEZ under Art. 121(3), the tribunals had no specific reason to discuss this question. On the other hand, the declaration from Vukas has limited weight on its own, as neither of the other judges gave their support to

93 Seychelles v. France. Declaration of Judge Vukas.

94 Russian Federation v. Australia. Declaration of Vice-President Vukas paras. 3-6.

95 Ibid para. 2.

96 Russian Federation v. Australia. Dissenting opinion of Judge Anderson para. 2 footnote 3. Notably, Judge Anderson only held that the 368 km² Heard Island was “clearly an island”; he did not comment on the 2,5 km² large McDonald Islands. The dissent concerned the question of prompt release.

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the declaration. The declarations by Vukas – and the response by Anderson – implies that there were different opinions concerning whether size is a relevant factor under Art. 121(3).

In summary, the jurisprudence prior to the SCSA does not provide any clear answer as to whether size is a relevant factor under Art. 121(3). However, the jurisprudence does not dis- miss size as a relevant factor, and even though the reasoning is unclear, the results of the cases would be reconcilable with size being a relevant factor of its own.

Before the SCSA, most commentators seems to have agreed that “[r]ocks” referred to very small islands.⁹⁷ Elferink argued that “it has to be assumed that islands above a certain size never qualify as rocks, even if they meet the other criteria mentioned in article 121(3)”,⁹⁸ while Van Dyke et al. noted that size was a relevant factor in distinguishing “[r]ocks”, even though the other elements of Art. 121(3) were emphasized more.⁹⁹ However, there appears to have been no consensus as what size was required, or whether it was possible to establish

“one specific size under which each island becomes a rock”.¹⁰⁰

The SCSA tribunal, however, held that size was an irrelevant factor of its own under Art.

121(3). In reaching this conclusion, the tribunal did not assess whether the ordinary meaning of “[r]ocks” in light of its context and object and purpose had any connotations to size.¹⁰¹ Ra- ther, after having recourse to the preparatory works of Art. 121(3) and to a brief statement in Nicaragua v. Colombia, the tribunal concluded that “size cannot be dispositive of a feature’s status as a fully entitled island or rock and is not, on its own, a relevant factor”.¹⁰²

As the tribunal also held that “[r]ocks” imposed no geological/geomorphological criteria, the dismissal of size as a relevant factor made the socio-economic requirements into the only relevant criteria under Art. 121(3). “Rocks” thus became a descriptive term for islands not meeting the socio-economic requirements. As this conclusion is contrary to the view of most

97 E.g. Kolb (1994) p. 904-905, Churchill (1994) p. 25, Elferink (1998) p. 58, Gjetnes (2001) p. 193, Kwiatkow- ska (2011) p. 151-153.

98 Elferink (1998) p. 58.

99 Van Dyke (1988) p. 437.

100 Elferink (1998) p. 58.

102 Ibid para. 538.

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commentators, there is reason to discuss whether this represents the correct interpretation of Art. 121(3).¹⁰³

The tribunal found support for its conclusion in a statement by the ICJ that “international law does not prescribe any minimum size which a feature must possess in order to be considered an island” in Territorial and Maritime Dispute (Nicaragua v. Colombia). However, this statement concerned the first paragraph of Art. 121, i.e. the definition of an “island”.¹⁰⁴ More- over, that there is no minimum size required to be considered as an “island”, does not necessarily mean that there is no maximum size for being considered as a ‘rock’. This decision is accordingly not particularly relevant for this question, and does not in my opinion support the conclusion of the tribunal that size is an irrelevant factor of its own.

However, the tribunal’s primary argument for dismissing size as a relevant factor of its own was found in the preparatory works, i.e. the drafting history, of Art. 121(3). The tribunal especially emphasized that proposals to define or categorise islands by reference to size had all been rejected during the third UNCLOS conference.¹⁰⁵ The question in the following is whether the preparatory works prescribes that size is an irrelevant factor of its own under Art.

121(3), as the SCSA tribunal suggested.¹⁰⁶

Art. 121 was drafted during the third UNCLOS conference, under which three different proposals concerning the regime of islands were presented and discussed. The first proposal from Romania suggested that uninhabited islands and islets of small size without any economic life should be excluded from generating maritime zones beyond the territorial sea.¹⁰⁷ An islet was later defined by Romania as “a naturally formed elevation” of “less than one square kilometre in area”.¹⁰⁸ However, Romania specified that also small islands, i.e. islands bigger than islets, on which there could be no permanent habitation or economic life of their own, should be treated as islets.¹⁰⁹

103 Supra note 47 and 97.

104 Nicaragua v. Colombia para. 37.

106 Ibid para. 538.

107 UNCLOS III (1982a) p. 195-196.

108 UNCLOS III (1982b) p. 229.

109 Ibid.

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A second proposal from Turkey supported this approach, but distinguished between ‘islands without an economic life’ and ‘rocks’. Under this proposal, “[i]slands without economic life”

(which were situated outside the territorial sea) and “[r]ocks” (in general) should not have any

“marine space of their own”.¹¹⁰ Turkey did not define “[r]ocks”, but seems to have considered it as the smallest category of islands, i.e. high-tide elevations.¹¹¹

The third proposal, which was presented by 14 African States, made a clear distinction between islands, islets, rocks and low-tide elevations. Under this proposal, States were only al- lowed to claim jurisdiction over marine spaces by virtue of sovereignty or control over “islands”, which were defined as “a vast naturally formed area of land”. Islets, which were defined as “a smaller naturally formed area of land”, and rocks, which were defined as “a naturally formed rocky elevation of ground”, were excluded from generating maritime spaces.¹¹² The definition of a rock in this proposal was primarily linked to its geological characteristics (“rocky elevation of ground”). However, as argued by Prescott and Schofield, the proposal ranked islands, islets, rocks and low-tide elevations “in descending order of size and per- ceived importance”.¹¹³ The African definition of a ‘rock’ could therefore be understood more generally to refer to islands smaller than islets.

These three proposals thus distinguished between islands above a certain size, smaller islets and rocks. The latter category was not defined by reference to size explicitly, but it was clearly considered as an even smaller and more insignificant formation than islets, which were considered as smaller than ordinary islands.

Based on these three proposals, a working committee presented a draft proposal on 7 May 1975. The proposal, which became the final text of Art. 121(3), did not maintain the category of islets. “Rocks”, which had been introduced by Turkey and the 14 African States, was maintained as the only category of islands that were not entitled to an EEZ and continental shelf.

The definition of a ‘rock’ as a “rocky elevation of ground”, introduced by the 14 African

110 UNCLOS III (1982c) p. 230.

111 Ibid. See also Franckx (2014) p. 110.

112 UNCLOS III (1982d) p. 232-233.

113 Prescott (2005) p. 74.

The legal regime of the maritime zones around Svalbard