On The Definition Of The Island In UNCLOS

The island plays an important strategic role in the law of the sea, because a country could share not only the sovereign right but also the jurisdiction over the sea surrounding an island by occupying this island. The island disputes cannot get settled well without dealing with the problems about"what is an island"and"what is the type of an island", and the basic problem is the former. As the basis legal document for establishing the modern order of the sea, 1982 United Nations Convention on the Law of the Sea (UNCLOS) established the regime of islands. Although the island is laid on a very high status, the provisions about it is very weak in UNCLOS, especially the definition.The specific definition of the island is a provision in article 121 (1) that is in Part VIII of UNCLOS, which is unclear and controversial in the respects of the formation, the size, the scope and the social attributes of the island. First of all, the island is mainly confined to be formed by nature in according with article 121 (1), it is hard to distinguish the natural island to the artificial island accurately. In the second place, there is no unified standard on the size of the island issue, which involves two aspects: the island area and the elevation. So, it has lead to be absence of the common opinion on the states cognizing and practicing, even about the basic issues. Besides, the principles and the purposes of UNCLOS intent to restrict the scope of the islands, but there are no specific measures to achieve the aim, only to make any limits of the aspect of the social attributes on the rock that is a type of the island.In the experience of the states and theoretical analysis, the definition of the island in UNCLOS is interpreted by the member states arbitrarily. So improving the definition of the island is meaningful thing. Therefore, the paper also puts forward the perfection countermeasures. The first thing is making the unified standards for the formation, the size and the scope of the island. Secondly, it had better define the social attribute as an element of the definition of the island. Thirdly, learning from the usages and customs of"equal distance-special circumstance"in the delimitation of maritime boundary, classify the island with the division standard that distance between island and mainland, provide criteria for recognizing the ownership about right of the island. Improving the definition of the island is proper to balance between the precision of the legal concept and the flexibility of the law application.China and Japan hold different attitudes on the problem that is identification of the type and the status on Oki-no-Tori Shima Rock, which reflects the defects of UNCLOS. Based on geography, Oki-no-Tori Shima Rock may be treated as an island because of the natural conditions itself. However, Oki-no-Tori Shima Rock based on the law, which cannot sustain human habitation or economic life of its own, should be regard as the rocks. More importantly, Japanese government take artificial accession to make Oki-no-Tori Shima Rock have the qualifications to be an island, which caused the natural quality changed indeed to the rocks. From the above, Oki-no-Tori Shima Rock does not have full status and all rights as an island in terms of legislation.