1. The Meaning of Historical and Geographical Integrity
The most important condition that determines territorial sovereignty is continuous and peaceful exercise of state power, or effective rule (effectivités). As the judges acknowledged in the legal case over the islands of Ligitan and Sipadan argued between Malaysia and Indonesia in the International Court of Justice in 2002, effective rule may be weak in small uninhabited islands or islands with no permanent residents.The fact that the requirement of state power exercise is less stringent for territorial sovereignty over uninhabited islands or islands in polar regions can be seen in the cases of Eastern Greenland and the Clipperton Islands.
In these cases, the only remaining yardstick by which judgment can be made is geographical circumstances with an adjacent larger island and the legal and historical relationship. In other words, this judgment is based on legal, historical, and geographical integrity or unity with the larger island. In the expression in the Gulf of Fonseca case, the islands of Meanguera and Meanguerita consisted of a single insular unit, or Meanguerita was a dependency island of Meanguera. In the case of the Minquires and Ecrehos, the two islands of the Minquires and Ecrehos were considered.“dependency” of the Channel Islands. In the 1998 Eritrea-Yemen Arbitration Award, the discussion over the concept of “unity” was pursued. In this case, expressions such as the principle of natural or geophysical unity, natural unity, and unity were used.
One can see that most scholars tend to prefer other terminology instead of geographical contiguity depending on geographical and historical circumstances. In relation to the Dokdo issue, the late Jon Van Dyke of the University of Hawaii Law School used the term “close physical and historical link” to describe the relationship between Ulleungdo and Dokdo based on the visibility of the latter from the former.Prof. Lee Sang-myun of Seoul National University used an expression “visible propinquity” between Ulleungdo and Dokdo.
〈FIG 5〉Dokdo Seen from Naesujeon, Jeodong, Ulleungdo (1. 14. 2008)
For islands that have legally, historically, and geographically been considered a single integral unit, one must use different terms than geographic contiguity, which denies the idea of independent territorial integrity. In this case, expressions such as geographic unity, historical unity, histo-geographical unity, or legal unity may be more appropriate. A single unit is an integral body, which also includes the meaning of dependency.
Huber also stated, “Under certain circumstances, a series of islands many be treated as a unit as in law and the main island may exert influence on other islands.” Here one may see that the presence of islands forming a legal unit is acknowledged.
2. The Range of Geographical Unity
Although the judges in the Island of Palmas Case did not recognize geographical contiguity as grounds for independent territorial sovereignty, the conclusion would have been different for uncharted isolated islands with no inhabitants. In this case, the island’s sovereignty would be judged based upon the relationship with a larger island nearby.
The Eastern Greenland case was raised in the Permanent Court of International Justice by the Danish government on July 10, 1931. The Danish government argued that the preemptive declaration by Norway on Eastern Greenland must be nullified.Eastern Greenland is located in the Arctic region; its coordinates lie between 71° 30' and 75° 40' N.
The judges in this case determined that effective occupation (corpus possessions
) is not needed to meet the requirement of effective rule. Even when considering effective rule, the judges continued, one must take into account the fact that Eastern Greenland is in the highly inaccessible Arctic region and no states have made sovereignty claims on Greenland for centuries. The gist of the judges’ verdict is that although it is true the most important element in proving territorial sovereignty is “the effective display of state authority,” the yardstick must be used less strictly in areas where access is difficult.
In the end, the Permanent Court of International Justice took the side of Denmark on the grounds of geographical integrity and judged that the country made an attempt at effective rule in parts of Greenland, which could be construed as sovereignty over the whole land. As can be understood in the case of Eastern Greenland, effective rule does not necessarily encompass the whole area of land in question as grounds for territorial sovereignty. In the case of uninhabited isolated islands, one can assume a situation of “partial occupation” and this is more plausible for islands close enough to the mainland or larger inhabited islands.
In the case of Eastern Greenland, that is, land lying to the east of Greenland, that island is linked with other areas through surface transportation. At this point, one can raise the question under what geographical conditions an island can be said to form geographical integrity with neighboring lands.
Let us take the example of the Gulf of Fonseca case between El Salvador and Honduras. This case concerns a sovereignty dispute involving the two islands of Meanguera and Meanguerita lying within the Gulf of Fonseca. The highest point in the Island of Meanguera (16.68 square kilometers) is 480 meters, with the north-south diameter spanning six kilometers and the east-west axis stretching 3.4 kilometers. The island is covered with forest, and its coastline is steep with rocky cliffs. This island has been inhabited for a long time. As of 2007, its population was 2,398. In contrast, the Island of Meanguerita, located in the southeast of Meanguera, is an uninhabited island with a size of only 0.35 square kilometers. While lacking fresh water, Meanguerita is covered with forest.
The judges in the case treated Meanguerita as a dependent island to Meanguera (in other words, as a single insular unity), to which neither party protested. The judges ruled that only the Island of Meanguerita could be subject to dispute settlement, but added that, unless there are any separate claims to the island, its sovereignty depends on the sovereignty of the larger island as the former is a dependent island to the latter. The judges mentioned in the ruling that in the Minquires and Ecrehos case of 1953, the Minquires were dependent to the Channel Islands.
The distance of Meanguerita from Meanguera is about 300 meters. The judges and the two parties were unanimous on the issue of geographical integrity of the two islands. To what degree then can one recognize geographical integrity?
In the Island of Palmas case Huber mentioned the range of territorial waters. While denying the effectiveness of geographical integrity as the grounds for territorial sovereignty, he referred to the case of “islands situated outside territorial waters.” In 1928, when the Island of Palmas Case was reviewed, there was no agreement on territorial waters among nations. Since the 1982 United Nations Convention on the Law of the Sea, it has been generally accepted that the territorial waters reach as far as 12 nautical miles. In the 1998-1999 Eritrea-Yemen arbitration award, the International Court of Justice took the side of Eritrea based upon the judgment that the islands of Mohabbakahs and Haycock that were in dispute lay within 12 nautical miles from the Eritrean coast.
As a way to acquire sovereignty, there is the concept of "accretion," or the physical expansion of an existing territory through geographical processes, such as deposit of sediment or vulcanism. In this case, the accreted island belongs to the state most adjacent to it. International law scholars suppose such cases arise in territorial waters or inland waters. For example, if a new volcano island is created within the territorial waters, the state is entitled to sovereignty over the new island unless there are special circumstances.
3. Historical Sovereignty over Islands within Visible Range
A small uninhabited island lying within the visibility range from a sovereign state carries a special meaning. There was an international law case in which judges recognized historical sovereignty over an island deemed difficult for people to settle permanently but visible from sovereign land. This is the Pedra Branca dispute, a territorial dispute between Singapore and Malaysia over several islets at the eastern entrance to the Singapore Strait. The lawsuit, raised in the International Court of Justice on July 24, 2003, involved three islands--Middle Rocks and South Ledge, as well as Pedra Branca. Pedra Branca is located 14.3 kilometers (7.7 nautical miles) off the Malaysian mainland while 47.2 kilometers (25.5 nautical miles) away from Singapore. Its length is 137 meters, width 60 meters, and area 8,560 square meters (at low tide). It has man-made structures such as a lighthouse, with a lighthouse keeper in residence. Middle Rocks, 1.1 kilometers (0.6 nautical miles) south of Pedra Branca, is a rock formation from 0.6 to 1.2 meter tall. South Ledge, located 4.1 kilometers (2.2 nautical miles) south of Pedra Branca, consists of three low-tide elevations.
The International Court of Justice ruled on May 23, 2008, that Pedra Branca is under Singapore's sovereignty, while Middle Rocks belongs to Malaysia. As regards South Ledge, the Court noted that it falls within the apparently overlapping territorial waters generated by mainland Malaysia, Pedra Branca, and Middle Rocks.
For Pedra Branca, the act of continuous and explicit exercise of sovereignty by Singapore, including the construction of the lighthouse, was the main reason for the verdict. What is notable about this case is that the judges recognized the historical sovereignty of Malaysia although they took the side of Singapore when it came to legal sovereignty. One should also note that the judges issued a different verdict regarding Middle Rocks, the rock formation only 1.1 kilometers (0.6 nautical miles) away from Pedra Branca, giving legal sovereignty to Malaysia.
〈FIG 6〉Pedra Branca seen from the Malaysian side; Indonesian land is visible in the distance.
The closest point on the Malaysian mainland from Pedra Branca is Tanjung Sepang. The author visited the area on October 29, 2008, and interviewed several residents there. According to witness accounts by the residents, Pedra Branca was visible with the naked eye from hill areas. In contrast, Pedra Branca can never be seen from the Singaporean mainland. The closest point in Singapore from Pedra Branca is the island of Pulau Ubin. From this island, it is not possible to see Pedra Branca as a view of the island view is blocked by the Malaysian mainland.
In estimating historical sovereignty, an island close enough to be visible has a great advantage over one that is not visible. That is because in the past fishermen tended to sail to areas where ocean currents or winds took them, which means they would have preferred to go to islands visible to them. This is the same for the Pedra Branca dispute. If the Singaporean government did not build the lighthouse and there was no connivance on the part of the Malaysian government, the judges would have taken the side of Malaysia, giving Pedra Branca, as well as Middle Rocks, to Malaysia.
4. Warranty on Effective Rule over Islands within Visibile Distance
There is another legal case in which a nation was awarded territorial sovereignty based upon the principle of visibile distance. This is the case concerning sovereignty over Pulau Ligitan and Pulau Sipadan. A sovereignty dispute between Malaysia and Indonesia, this case was raised in the International Court of Justice on November 2, 1998. It ended on December 17, 2002, with a verdict that the two islands belong to Malaysia.
Sipadan Island is located 27.8 kilometers (15.0 nautical miles) away from the Malaysian village of Tanjung Tutup. From the Indonesian side, it is 77.8 kilometers (42.0 nautical miles) from Sebatik Island, an island off the eastern coast of Borneo belonging to both Indonesia and Malaysia. Sipadan’s size is only.12 square kilometers, smaller than even Dokdo, with well-developed sand beaches and coral reefs. It was uninhabited until the 1980s, and since has become a favorite scuba diving spot for foreign tourists. At present, the island hosts about 30 permanent residents including military troops and park rangers (as of June 16, 2009), and there are man-made facilities such as a lighthouse and military barracks. It has fresh water sources that can be used for shower water while drInking water is transported from Semporna, Malaysia. There are a variety of birds and an animal called the spiny-tailed lizard on the island.
The closest island from Sipadan is Mabul, a territory of Malaysia. From the author’s personal experience in 2009, a sizable number of residents of Mabul said they could see Sipadan with their naked eyes (see〈FIG 7〉). In contrast, the closest Indonesian spot from Sipadan is the island of Sebatik. To the author, it seemed that the island was too far away to see Sipadan and with no high ground on the island, it would be impossible to observe Sipadan.
When deciding on the sovereignty on Sipadan, the judges considered factors proving effective rule by the Malaysian government such as the Turtle Preservation Ordinance to protect turtle eggs on the island and the designation of a reserve for bird sanctuaries there. It is likely that the fact that Sipadan lies in a location visible from Malaysia’s Mabul Island was also a factor in the decision.
〈FIG 7〉 Sipadan Island Seen from Malaysia’s Mabul Island
As for the island of Ligitan, it is 38.9 kilometers (21 nautical miles) away from Tanjung Tutup on the Semporna Peninsula in Malaysia. The uninhabited island is mostly sand beaches with a few trees and scattered vegetation. Ligitan is part of a large coral reef formation and is located at the southernmost spot in the star-shaped coral reef encompassing the islands of Danawan and Si Amil, both in Malaysia. Geographically, it is connected to Malaysian land. It is likely that the judges also considered this geographical feature when deciding on Malaysian sovereignty.
As the judges ruled in this case, it is natural that effective rule of uninhabited islands is weak at best. In this case, the only criteria to ascertain territorial sovereignty were historical, geographical, and legal relationships with the mainland or the larger island nearby.
5. Legal and Historical Relationships
In the case of the Minquires and Ecrehos between France and the United Kingdom, the legal and historical relationships were an important factor to consider in the court. The case concerned a territorial dispute between the United Kingdom and France over the islands of Minquires and Ecrehos lying on the English Channel. It was reviewed in the International Court of Justice. The islands, located between the island of Jersey in the English Channel and the northwestern coast of France, consist of a few inhabitable islands and many rocks. Both parties to the ligitation claimed territorial sovereignty to all the islands and rocks. Ecrehos Island is 7.2 kilometers (3.9 nautical miles) away from Jersey Island and 12.2 kilometers (6.6 nautical miles) from the French coast. The distance of the Minquires from Jersey Island is 18.1 kilometers (9.8 nautical miles) and its distance from the French mainland is 30 kilometers (16.2 nautical miles). It is 14.8 kilometers (8.0 nautical miles) away from the Chausey Islands off the coast of Normandy, France.
As for the Minquires, it is closer to the French islands than to the United Kingdom’s Jersey Island. As seen above, it is difficult to argue territorial sovereignty over an island based solely on geographic contiguity. In sovereignty disputes, it is important to offer as much evidence as possible in relation to the exercise of state power in a continuous and peaceful manner on the contested land.
In the case of the Minquires and Ecrehos, judges considered it an important fact that the two islands were under the criminal jurisdiction of and subject to taxation by the authorities of the Channel Islands or Jersey Island. In addition, the islands were under the control of the Jersey Island administration with regard to real estate transactions. In the end, the Court judged that the islands in question were a dependency of the Channel Islands. That is, the most important criterion for the judgment was that the islands in dispute were intimately related with larger islands in close proximity.
- [note 094]
- Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesiav. Malaysia), ICJ Reports (2002), p. 682. para. 134.
- [note 095]
- Case Concerning the Land, Island and Maritime Frontier Dispute(El Salvador v. Honduras: Nicaragua intervening), ICJ Reports(1992), p. 570, para. 365.
- [note 096]
- The Minquires and Ecrehos Case (France v. U.K.), ICJ Reports (1953), p. 71.
- [note 097]
- The Eritrea-Yemen Arbitration-Phase 1: Territorial sovereignty and scope of dispute (Eritrea v. Yemen), PCA Award of the Arbitral Tribunal (1998), pp. 128-131. para. 460-466[www.pca-cpa.org].
- [note 098]
- J. M. Van Dyke (2007), “Legal Issues Related to Sovereignty over Dokdo and Its Maritime Boundary,” Ocean Development & International Law, No. 38, p. 194.
- [note 099]
- Lee Sang-myeon, “Proof of Dokdo Territorial Right,” SNU Law Journal, 42(4), p. 216.
- [note 100]
- The Island of Palmas Case(1928), p. 23.
- [note 101]
- The Legal Status of Eastern Greenland Case (Denmark v. Norway), PCIJ Reports (1933)(Ser. A/B), No. 53.
- [note 102]
- S. P. Sharma(1997), ibid., p. 82.
- [note 103]
- Lee, Han-gi (1969), op. cit., p. 204.
- [note 104]
- Lee Han-gi (1969), op. cit., p. 204.
- [note 105]
- Hong, Seong-geun (1999), “Legal Status of the Islands in the Gulf of Fonseca and the Issue of Dokdo: The Dispute over Land, Island, and Ocean Borders” (from a 1992 International Court of Justice case), Compilation of International Law Cases, Vol. 7, pp. 717-742.
- [note 106]
- For geographical information on Meanguera and Meanguerita, refer to .
- [note 107]
- Case Concerning the Land, Island and Maritime Frontier Dispute (1992), p. 570, para. 356.
- [note 108]
- Case Concerning the Land, Island and Maritime Frontier Dispute (1992), p. 570, para. 356.
- [note 109]
- The Minquires and Ecrehos Case (1953), p. 71.
- [note 110]
- [note 111]
- The Island of Palmas Case (1928), p. 22.
- [note 112]
- The Eritrea-Yemen Arbitration (1998), p. 132, para. 472 Van Dyke (2007), p. 194.
- [note 113]
- Kim Dae-soon (2010), International Law, fifteenth ed., Samyeong, p. 871; Lee Han-gi (2002), op. cit., p. 323; Encyclopedia of Public International Law, Vol. 4 (2000), Territory, Discovery, p. 842; M.N. Shaw, (1991), International Law, 3rd ed., New York: Cambridge University Press, p. 284.
- [note 114]
- Kim Yong-hwan (2008), “ICJ Case Analysis Concerning Pedra Branca, Middle Rocks and South Ledge,” International Law Association Journal, 53(2), pp. 11-30.
- [note 115]
- However, I was not able to go up to the hills as the military was stationed in the mountain areas.
- [note 116]
- Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (2002), p. 682, para. 134.
- [note 117]
- The Minquiers and Ecrehos Case (1953), p. 46.