Questions relating to Sovereignty in the Lamma Sea
(Quntong v. Discovia)
- The Republic of Discovia (“Discovia”) and the Republic of Quntong (“Quntong”) are two member States of the United Nations, the adjacent coasts of which face the Lamma Sea. The geological area encompassing the two States and the Lamma Sea is characterised by underwater volcanic activity, and is known as the Lamma Basin.
- Owing to intense volcanic activity during the Pleistocene, five islands emerged from the Lamma Sea, known as Sandy Key, Rainbow Cay, Central, Dragon Bay and East Isle. Other unnamed maritime features, some of which are above water at high tide, are located in the vicinity of these five islands. Such islands and features, of which the closest to the mainland lies at 70 nautical miles (“nm”) from the coast of Discovia, form the Fragrant Archipelago. The islands farthest from each other, East Isle and Sandy Key, are 45 nm apart. Although the Archipelago is located within the Exclusive Economic Zone (“EEZ”) of Discovia, it is under the sovereignty of Quntong by virtue of a treaty between the two States (see paragraph 9 below).
- Until 2 October 1931, Discovia and Quntong were the two constituent regions of the United Republic of Lantow (“Lantow”), the capital city of which was Crocodile Hill. In a vote held on 22 April 1930, the citizens of Lantow overwhelmingly voted in favour of the emergence of Discovia and Quntong as sovereign States. At midnight on 3 October 1931, Lantow peacefully dissolved, and, as a result, Discovia and Quntong became independent. Crocodile Hill became Quntong’s capital city, and the land boundary between the two new States was fixed along the Wan River.
- After the dissolution of Lantow, Discovia and Quntong were left to agree on the framework governing their relations under international law. Starting in 1932, Discovia and Quntong concluded a number of bilateral treaties on a variety of matters.
- Over a period of approximately three years starting in 1932, Discovia and Quntong negotiated a treaty concerning their territorial sea boundary and sovereignty over the islands of the Fragrant Archipelago. In a diplomatic note sent by the Embassy of Quntong in Discovia to the Ministry of Foreign Affairs of Discovia, dated 9 August 1934, Quntong’s Ambassador conveyed as follows:
“I have the honour of addressing Your Excellency with respect to the negotiations of the treaty on the territorial sea boundary between the Republic of Quntong and the Republic of Discovia.
Quntong declares that the Fragrant Archipelago has been central to the economy of Quntong since time immemorial. While the people of Discovia have not taken an interest in the exploration and exploitation of fishery resources in and around the Archipelago, the people of Quntong have engaged actively in fishing activities in that area. These activities have created a historical association between Quntong and the islands of the Fragrant Archipelago. Considering this historical association, it is proposed that the treaty on the delimitation of the territorial sea boundary between the two States include a provision by which Discovia recognises the sovereignty of Quntong over the relevant islands.
Accept, Madam, the assurances of my highest consideration.”
- In its reply dated 2 October 1934, the Minister of Foreign Affairs of Discovia stated that:
“I have the honour of replying to your note of 9 August 1934.
Discovia agrees with the proposal made by Your Excellency concerning the inclusion, in the treaty under negotiation, of a provision recognising the sovereignty of Quntong over the islands of the Fragrant Archipelago.
Accept, Sir, the assurances of my highest consideration.”
- Upon terminating the last round of negotiations, the Foreign Minister of Discovia and the Ambassador of Quntong released a Joint Communiqué, which stated as follows:
“In a spirit of friendly neighbourliness, and on the basis of their historical association to Quntong, Discovia recognises the sovereignty of Quntong over all maritime features forming part of the Fragrant Archipelago, lying between the 21st meridian and the 19th meridian.”
- On 14 June 1935, following due ratification by both States, the Territorial Sea Boundary Treaty (“1935 Treaty”) entered into force. Pursuant to Article 1 of the 1935 Treaty, Discovia and Quntong recognised each other’s claim to a territorial sea extending up to 6 nm from their respective coasts. Article 2 of the 1935 Treaty established a boundary dividing the Parties’ respective territorial seas by way of a line every point of which lay at the same distance from the coasts of the two States (i.e., an equidistance line).
- Article 3 of the 1935 Treaty attributed sovereignty over the features of the Fragrant Archipelago to Quntong. This provision states:
“(1) The Republic of Discovia recognises the sovereignty of the Republic of Quntong over the features of Sandy Key, Rainbow Cay, Central, Dragon Bay and East Isle. The Republic of Discovia also recognises the sovereignty of the Republic of Quntong over other maritime features located east of the 21st meridian and west of the 19th meridian, and which are part of the Fragrant Archipelago.
(2) The Republic of Discovia and the Republic of Quntong further agree that Quntong will enjoy sovereignty over a belt of sea around the islands of the Fragrant Archipelago, up to 6 nautical miles from their coast.”
The Parties also agreed to entrust a Joint Commission with the preparation of a map, depicting the Parties’ territorial sea boundary and the boundaries of the area of the Fragrant Archipelago under Quntong’s sovereignty (the information shown in this map is also shown in the attached present-day map).
- By Executive Order dated 31 March 1983, Quntong proclaimed an EEZ extending up to 200 nm from its mainland coast. On 6 July 1985, Discovia issued a Presidential Proclamation declaring an EEZ of the same breadth.
- By Exchange of Notes dated 15 and 17 January 1986 (“1986 Exchange of Notes”), the Parties agreed to extend their maritime boundary to 200 nm from the coast. As a result, the EEZ boundary between the Parties was also established as a line equidistant from the respective coasts of the two States. The Parties chose to disregard the Fragrant Archipelago in drawing their EEZ boundary. As the Fragrant Archipelago fell entirely on Discovia’s side of the equidistance line, the Parties agreed that the islands of the Archipelago would not generate an EEZ, but instead would be enclaved within Discovia’s EEZ.
- On 30 May 1991, protracted volcanic activity in the Lamma Basin resulted in the appearance of a new maritime feature permanently above water at high tide. This feature measures 1.5 km2; it is located 40 nm east of East Isle, 45 nm north of the agreed EEZ boundary between the Parties, and 13 nm west of the 19th meridian. On 3 June 1991, military authorities of Discovia were the first to reach the new feature, by then already known as Chau, claiming that Discovia was sovereign over it. On 5 June 1991, the Ministry of Foreign Affairs of Quntong issued a press release, proclaiming that Chau was under the sovereignty of Quntong pursuant to the 1935 Treaty, in which Discovia had recognised Quntong’s sovereignty over “other maritime features located east of the 21stmeridian and west of the 19th meridian, and which are part of the Fragrant Archipelago”.
- Quntong maintained its position that it was the lawful sovereign over Chau, including by issuing official government maps indicating that the feature was part of the Fragrant Archipelago. Nevertheless, Quntong never attempted to land on Chau, preferring instead to avoid direct confrontation with Discovia. Conversely, Discovia’s military authorities remained on Chau since their landing on 3 June 1991. Initially, such authorities erected a camp mainly consisting of tents. In 1992, when it was clear that volcanic activity in the area had decreased considerably, such authorities built barracks housing up to ten military personnel.
- The completion of the barracks was followed, in 1995, by the construction of a meteorological station operated by at least three persons at any given time. Both the military personnel and the meteorologists have relied, and continue to rely, on food and water supplies shipped from Discovia’s mainland at regular intervals.
- Over the years, Discovia-flagged fishing vessels operating in the Lamma Sea have also used Chau as a base for their maritime activities. While, at first, such vessels would only find refuge on Chau in case of need, such as when strong sea storms would prevent their immediate return to Discovia’s mainland harbours, in 2003 a small fishing village was established with the consent of Discovia’s authorities.
- Fishing was the village’s principal economic activity, which included the shipment of small daily fish cargoes to Discovia’s mainland to be traded at the fish market of Victoria, Discovia’s capital city on the Lamma Sea. Although the village relied on fishing for its subsistence in spring and summer, the migration of fish stocks required that food be shipped from Discovia’s mainland in autumn and winter. In August 2006, a strong typhoon hit the Lamma Sea, resulting in the destruction of the fishing village on Chau which, unlike the military barracks and the meteorological station, consisted of structures built using locally-sourced materials. The village has not been re-settled since.
- Starting in the late 1990s, Discovia-flagged private fishing vessels operating in the area around Chau started fishing, with increasing frequency, on Quntong’s side of the EEZ boundary agreed between the Parties. Quntong’s Ministry of Foreign Affairs issued a number of press releases calling for the immediate cessation of such fishing activities, which were claimed to be in breach of the exclusive sovereign rights relating to fishing which Quntong enjoyed in its EEZ under the provisions of Part V of the United Nations Convention on the Law of the Sea (“UNCLOS”). Quntong’s Ministry of Foreign Affairs also sent numerous diplomatic notes to the Embassy of Discovia in Quntong, protesting activities by Discovia-flagged vessels on its side of the EEZ boundary.
- In the face of such protests, Discovia’s government remained silent, not replying to any of the diplomatic notes sent by the Ministry of Foreign Affairs of Quntong. The only official statement was made on 1 November 2005 by Discovia’s Minister of Foreign Affairs, Mr. John Lok, who declared that “Discovia intends to respect its international obligations”. However, Mr. Lok added that “the capabilities of Discovia’s law-enforcement fleet are not sufficient effectively to prevent fishing in areas under Quntong’s jurisdiction”.
- As a result of Discovia’s inaction, Quntong’s navy started patrolling more intensely the area on its claimed side of the EEZ boundary within which Discovia-flagged fishing vessels operated. Quntong’s navy expelled numerous fishing vessels on the ground that they did not possess a valid fishing licence as required under Quntong’s legislation, and confiscated seven cargoes of fish allegedly caught in its EEZ. However, these measures were not a sufficient deterrent against continued fishing by other Discovia-flagged vessels.
- Following the 2017 General Election, Discovia’s government changed. Shortly after it took office in April 2017, Discovia’s new Prime Minister, Ms Rosa Yam, inaugurated Victoria’s new harbour, on which occasion she delivered a speech stating that “Discovia’s government expresses solidarity with the owners and operators of vessels flying its flag, which conduct lawful fishing activities around Chau”. Ms Yam also stated that “the appearance of Chau has fundamentally changed the circumstances on the basis of which the 1986 Exchange of Notes was concluded”, and that, as a result, “the 1986 Exchange of Notes is no longer in force between Discovia and Quntong”.
- The President of Quntong, Mr. Simon Yu, objected to Ms Yam’s remarks. At a press conference convened two days after Ms Yam’s speech, Mr. Yu, while maintaining the position that Quntong was the lawful sovereign over Chau, declared that “the 1986 Exchange of Notes is still in force under international law”, and that, in any event, “Chau, as a rock, is only entitled to a 12-nm territorial sea, which would confine the maritime area appertaining to it to Discovia’s side of the EEZ boundary established by the 1986 Exchange of Notes”. Mr. Yu added that “Discovia is responsible under international law for the conduct of private fishing vessels flying Discovia’s flag which conduct unlawful fishing activities within Quntong’s EEZ”.
- On 9 December 2018, Quntong instituted proceedings against Discovia before the International Court of Justice (“Court”). Quntong founded the Court’s jurisdiction on the Parties’ declarations of acceptance of compulsory jurisdiction. In its Application, Quntong requested the Court to adjudge and declare that: (i) Quntong has sovereignty over Chau, and (ii) Discovia incurred international responsibility by breaching its obligations under UNCLOS relating to Quntong’s exclusive rights to explore and exploit the fishing resources of its EEZ.
- Discovia does not dispute either the Court’s jurisdiction, or the admissibility of Quntong’s Application. In response to Quntong’s arguments, Discovia contends that: (i) it is the lawful sovereign over Chau, (ii) Chau is an island entitled to a 200-nm EEZ, and (iii) as the 1986 Exchange of Notes was terminated by the appearance of the island of Chau in 1991, the EEZ boundary between the Parties remains currently undelimited. According to Discovia, it follows that vessels flying its flag have been fishing lawfully in waters which fall under Discovia’s jurisdiction. In the alternative, should the Court find that the 1986 Exchange of Notes is still in force, Discovia argues that the conduct of private fishing vessels cannot be attributed to it under international law.
- In reply to Discovia’s arguments, Quntong states that the 1986 Exchange of Notes, as a treaty establishing a boundary, cannot have been terminated by the 1991 appearance of Chau, and that, as a consequence, the Parties’ EEZ boundary remains established in accordance with it. In the alternative, Quntong contends that Chau is not an island, but a rock within the meaning of Article 121(3) of UNCLOS.
- Discovia and Quntong ratified UNCLOS on 30 March 1983 and 26 June 1984, respectively. They also ratified the Vienna Convention on the Law of Treaties on 1 November 1972 and 3 October 1975 respectively, without reservations. By way of separate declarations, to which no reservations were attached, Discovia and Quntong accepted the compulsory jurisdiction of the Permanent Court of International Justice (“PCIJ”) under Article 36(2) of the PCIJ’s Statute on, respectively, 8 January 1938 and 25 September 1935.
- Counsel for Discovia and Quntong are required to make submissions concerning the following issues:
- Whether Chau is an “island” or a “rock” under international law;
- Which of the Parties has sovereignty over Chau under international law;
- Whether the 1986 Exchange of Notes is a treaty still in force between the Parties, or whether it has been affected by the appearance of Chau;
- Whether the conduct of private vessels flying the flag of Discovia and fishing on Quntong’s side of the EEZ boundary established by the 1986 Exchange of Notes is attributable to Discovia.
- Counsel for Discovia and Quntong shall make no submissions with regard both to the jurisdiction of the Court, and the admissibility of Quntong’s application. In case of discrepancy between the map and this document, the latter shall prevail.
Telders Case 2020 print version