Senkakus/Diaoyus: Are They Islands? Yes, No, Maybe

This blog post is by Constantinos Yiallourides, a PhD Candidate at the University of Aberdeen. In this post – the first this blog has hosted from one of our postgraduate community – he considers a point of international law linked to his research. A full biography can be found below.

The Senkaku Islands or Diaoyu Islands, as they are respectively known to the Japanese and Chinese, is a small group of offshore geographical formations lying at the southwest edge of the East China Sea. They are composed of the Uotsurijima/Diaoyu Dao Island and four other smaller islets and three barren rocks; their land amasses to just over six square kilometres. Despite the fact that they are extremely small (the largest island is about 4 square kilometres long by 1.5 wide), they all seem to form natural areas of land, permanently above water at high tide. All the islands are currently uninhabited.

Interestingly, these small, isolated and uninhabited offshore features have served as the most persistent and explosive bone of contention between China and Japan, since the 1970s, when the two countries formally expressed their maritime claims over the islands. The reason lies not on their economic value per se, as no economic activities are currently being conducted on the islands, but rather on their strategic location near areas where substantial quantities of offshore oil and gas are thought to be present. Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), to which both China and Japan are parties, offshore features qualifying as islands in a legal sense, can generate full maritime zones in the same way as other mainland territory. As a consequence, the significance attached to these islands stems from the perception that their possession can potentially generate extensive areas of maritime jurisdiction capturing the vast marine resources in the surrounding waters and seabed. This close interrelation between an island’s maritime generating capacity and competition over surrounding energy resources has also been evident in the territorial dispute between Argentina and the UK over the Falklands.

Article 121(3) of UNCLOS stipulates two very important conditions for an insular formation to qualify as ‘island’: to sustain ‘human habitation’ or ‘economic life of its own’.  Yet, how can one say with any certainty whether a feature is capable of sustaining human habitation or have the capacity to generate economic life of its own? More importantly, can there be a category of island, in a legal sense, that can have economic life of its own but cannot sustain human habitation, or vice versa?  Finally, would an island which had once been inhabited but have become uninhabited over time, due to persisting adverse economic conditions for example, be deprived of its legal status?

First of all, Article 121(3) refers to the capacity of sustaining human habitation, not simply habitation. Capacity for habitation is arguably a broader condition than actual habitation, meaning that an island must not necessarily be, or have once been, inhabited to be considered as such. The key is to prove the island’s ability to sustain habitation. Clearly, the first objective step to prove this ability is to look at the island’s present or past population. Even though it is not necessary for an island to actually be or have at some point been inhabited to meet the ‘sustain human habitation’ condition, it will certainly be easier to argue that an island can actually sustain human habitation if it has once been inhabited. In addition, the fact that the given population has historically made use of the surrounding waters, e.g. for fishing and mining, may be used to establish the island’s legal status. On this analysis, the St Kilda group of islands off the west coast of Scotland would still be thought of as an island, even though the population left over eighty years ago.

Assuming that there are no solid indications that the island is, or used to be, inhabited, the second practical step is to examine the island’s capacity to sustain human habitation. In that regard, the most vital needs for human survival are arguably food, fresh water, and shelter. Therefore, it may be suggested that the existence of cultivable soil, fresh water and enough space for shelter are the three most critical features of an island that has the ability to sustain human life.

The second requirement provided in Article 121(3) concerns the island’s capacity to ‘sustain economic life of its own’. Similarly to the first requirement, the phrase ‘able to sustain’ suggests that the existence of economic life is not necessary but rather is the presence of resources that can sustain such economic life that is crucial to qualify as island proper. Be that as it may, it is submitted that if natural resources, e.g. fisheries or minerals, are known to be present on the island is enough to reach the threshold of Article 121(3). This view finds some support on the Judgement of the Supreme Court of Norway in the case Public Prosecutor v Haraldson and others, where it was held that the existence of physical opportunities on Abel Island for sustaining some kind of economic life, namely bear hunting, were considered enough to grant the feature the legal status of an island.

Further to the above, the phrase ‘of its own’ indicates that the island itself must be capable of generating the source for its economic life. However, nowhere in the discussions that took place at UNCLOS III was it mentioned that islands must have self-sufficiency. As a matter of fact, it would not always be possible for any state, whether continental or island, to achieve self-sufficiency at every level, whether analysing that from the perspective of (for example) the economy, energy, food or agriculture. Some external support to fully realise the economic potential of an island must be deemed permissible to that end.

Turning now to the contested Senkaku/Diaoyu Islands, it becomes evident that the application of UNCLOS provisions on the matter raises several important questions.

Though there have been some reports of fishermen living occasionally on the larger island of the group, e.g. to find shelter during storms, none of the Senkakus/Diaoyus has ever been permanently inhabited, a fact which may indicate their incapacity to sustain stable human habitation. Nonetheless, despite the absence of stable human habitation on a given island, its intrinsic capacity to sustain human habitation should not be totally excluded. In order however to prove such capacity, it is crucial to demonstrate the presence of other factors on the island, such as fresh water, cultivable soil and enough space to build shelter. In that regard, while some vegetation is reported on the larger island of the group, it seems doubtful that any of them has cultivable soil to enable the production of food to sustain permanent human habitation. Further, none of the Senkaku/Diaoyu Islands seems to have readily accessible fresh water.

The next, and perhaps more complicated question, is whether the Senkaku/Diaoyu Islands satisfy the other requirement stipulated in Article 121(3) UNCLOS, namely, to be capable to ‘sustain economic life of their own’. Would fishing and production of oil from the surrounding waters meet this requirement? The fish stocks in the Senkakus/Diaoyus area are reportedly very significant. The same holds true for hydrocarbon resources in the surrounding seabed. As a consequence, it can be reasonably assumed that the area could potentially sustain an economic life if the surrounding seabed and superjacent waters were to be commercially exploited.

The question which then arises is whether this form of economic life could be considered to be generated by the island ‘of its own’ or if the island plays only a minor role in such economic activities. To that end, some commentators have asked whether it is sufficient for uninhabited islands, such as the islands in question, to have enough strategic economic value, e.g. due to their adjacency to valuable seabed resources, even if they have to import food and supplies from external sources. In other words, can a tiny, isolated and uninhabitable feature be considered as an island simply due to the fact that vast amounts of commercially exploitable hydrocarbon resources are known or suspected to be present in its proximity?

If it is accepted that hydrocarbon resources can justify the requirement of ‘sustaining economic life’ this means that a barren rock could potentially qualify as an island, thus unlocking a bigger maritime space, simply due to the proven or plausible presence of such resources. However, imagine the legal implications if the said hydrocarbons prove to be of lesser quantity or quality that initially expected, hence failing the ‘economic life’ test. Could it ever be admissible, under international law, that the legal status of an insular formation, and the associated maritime entitlements, could be determined solely on the basis of the commercial success, or otherwise, of the resources to which the feature is believed to be adjacent?

Ultimately, it is not altogether clear whether Senkakus/Diaoyus can be classified as islands in a legal sense. The general assumption is that none of the features would be capable of sustaining human habitation or economic life of their own, being very small, with no natural source of water, and very limited vegetation (mostly palm trees). However, any attempt to precisely define the conditions stipulated in Article 121(3) UNCLOS, namely human habitability and economic sustainability, and their application to Senkakus/Diaoyus, must, inevitably, involve a discussion on the functions of technology and economics. By way of example, the reported lack of fresh water on the islands can be immediately overcome through the use of seawater desalination technologies which are increasingly used by states and private corporations to produce fresh water suitable for human consumption or irrigation in places where fresh water is very limited or absent. In addition, Rainwater harvesting (PDF) technologies may be used to collect, store and conserve fresh water, in places where there is no surface water or where groundwater is inaccessible or unfit to drink. Moreover, in relation to the reported absence of cultivable soil on the Senkakus/Diaoyus, greenhouse structures are well known for their ability to effectively bypass shortcomings in the quality of the soil or poor weather conditions and can thereby enable the harvesting of crops or plants even in marginal environments. Ultimately, how can one argue with certainty that an offshore feature cannot ever be inhabited in an age when technology has made it theoretically possible to sustain human life in space stations on Mars?

All these questions lie at the heart of the Japan/China boundary disputes, and they are questions that matter. After all, they have the potential to cause serious discord among neighbours and act as a trigger for military confrontation.

Biography

Constantinos Yiallourides is in the third year of his PhD, entitled ‘Joint Development of Offshore Oil and Gas Resources: The Way Forward in Disputed Regions’, which investigates the impact of international maritime boundary disputes on the commercial development of mineral deposits found in contested waters. Recognising the complexity of such disputes, his research examines the legal and commercial settlement mechanisms which would allow the coastal States involved to overcome their boundary disputes and exploit their disputed, or transboundary, marine natural resources in a peaceful and coordinated manner. Constantinos’ research is funded by the Arts and Humanities Research Council, UK.

Constantinos was the Managing Editor of the 2015 edition of the Aberdeen Student Law Review (ASLR) and the Vice-President of the European Law Students’ Association (ELSA Aberdeen).

Advertisements

Same issues, different countries? The issues surrounding shale gas extraction

Blog by Dr Tina Hunter, a Reader in Energy Law and the co-Director of our Centre for Energy Law

The last few years has seen the British public turn its attention to the alleged evils of shale gas extraction in the countryside. Community concerns include the contamination of ground water, the impact of the activity on the local environment, inability of shale gas extraction and agriculture to coexist, and the continued use of fossil fuels. This community consternation started at Preese Hall in Lancashire in 2011, where the hydraulic fracturing of shale gas test wells created low level seismicity, and shone a spotlight on the process, which is better known by its colloquial term ‘fracking’.  The public response to these small earthquakes was fast and furious – condemnation, indignation and agitation. The government response was no less fast or furious – moratorium, independent report and government assurance. One year and two reports later, the moratorium was lifted, and the UK (excluding Scotland) was ‘open for business’, with the UK government declaring (and rightly so) that the UK regulatory framework for shale gas development was one of the best in the world.

Whilst the UK government felt that the outcome was ‘crisis averted’, the public was less satisfied. Protests at Balcombe in 2013 demonstrated wide scale public consternation over ‘fracking’ in the UK. The Balcombe protest targeted the drilling of a test well (including the possible hydraulic fracturing of the well) at Lower Stumble Wood near Balcombe by Cuadrilla Resources, the same company that drilled the wells at Preese Hall in 2011 that caused low-level seismicity. Similar protests and public consternation have occurred in the Lancashire area where applications for exploration drilling at Little Plumpton and Roseacre Wood were rejected by Lancashire County Council in June 2015, citing noise and traffic impact as the grounds for planning refusal.

One major criticism levelled by those opposing shale gas extraction relates to whether the activity should be undertaken at all. After all, the UK has North Sea gas, and the shortfall of energy can be made up with renewable energy, especially wind power. The UK government energy policy includes the use of such renewable energy as part of its clean energy future, with a reduction of the use of coal. However, the UK government sees the development of shale gas resources as essential to UK energy policy, with gas from shale rocks representing a fuel that is lower in carbon, and will provide a ‘bridge’ from high carbon coal to a low carbon energy future. Therein lies the conundrum. The UK government wants to develop shale gas resources for the energy security of the UK, and the anti-fracking lobby wants to ban the development of shale gas, because of its impact on the groundwater, the local environment, and land use activities. This raises a fundamental question for UK society – how can energy security be guaranteed in the UK without the development of shale gas?

The concerns that have been raised by UK communities are very similar to those expressed in Australian rural and remote communities. Having just returned from presenting at the Northern Territory Cattlemen’s Association Conference (PDF) in Alice Springs, I have been struck by the commonalities between the issues that are raised by UK and Australian communities regarding the impact of shale gas activities.

At first blush, it would appear that the vast expanse of the Australian outback, with its cattle stations half the size of Wales, and semi-rural England have little in common. Yet on close examination there is a plethora of similarities.

Both are facing changes to the physical and social environments as shale gas exploration and production is planned for the communities.

Both have concerns that hydraulic fracturing of wells will contaminate ground water resources.

Both are concerned that such shale gas exploration and extraction activities will bring increased traffic and community impacts.

Both are concerned whether existing agricultural activities can exist alongside proposed shale gas activities.

What is striking about these concerns is the universal nature of them, whether it is rural, semi-rural, or the middle of nowhere. Although these concerns are valid, a strong legal framework is able to address such concerns. The legal frameworks of the Northern Territory and the UK are both robust, able to legitimately regulate the shale gas extraction and its impact on the land.

An important difference between the UK and Australia is the issue of use of the shale gas that is extracted. Unlike the UK, Australia is awash with offshore conventional gas resources that are yet to be developed. In the Northern Territory, which is the latest Australian jurisdiction earmarked for large-scale development of its unconventional resources, energy security is not an issue: energy needs for the Northern Territory are met by the Blacktip Gas field in the nearby Timor Sea, providing 100% of the gas needs of the Northern Territory for at least the next 25 years. Instead, the shale gas resources are being explored and targeted for development for export to overseas markets, especially the lucrative Asian energy market. It is this use of the gas that has caused consternation in Northern Territory landholders. Landholders in Queensland have raised similar concerns where coal seam gas has been extracted for export to Asia.

This disparity in the use of extracted shale gas raises an important issue for consideration. Are there circumstances where the development of shale gas resources is more acceptable than others? Such a consideration is valid in the UK, where shale gas is to be extracted to meet the energy security needs of the country, compared to the Northern Territory, where private companies will extract shale gas for sale to Asian purchasers. At present community resistance to shale gas extraction is comparable, and the end use of the gas seems to have little bearing on community resistance to shale gas extraction.

These similarities in concerns, regardless of size of community or use of the shale gas produced, demonstrate that the community consternation is aimed at the extraction process itself, not the end product.