The Rights of States over Low-tide Elevations: A Legal Analysis

Abstract

The United Nations Convention on the Law of the Sea takes low-tide elevations into account only by endowing them with the capacity to generate specific maritime areas, by themselves, whenever they lie within territorial seas, and, subject to certain conditions, when they are part of straight baselines. But it passes over in silence the question whether and what rights states have over these maritime features. In a 2001 judgment, the International Court of Justice has held that in general low-tide elevations are under the sovereignty of the coastal states if they lie within their territorial seas, while, in a 2012 judgment, it has held that low-tide elevations cannot be appropriated, which seems to leave those features out of the ken of the law if they are located in exclusive economic zones. But, strictly speaking, in expressing such views, the Court cannot be deemed to have laid down customary law. It seems, however, that compelling reasons can be found, some of which are derived from the above-mentioned Convention, for considering that, except for low-tide elevations located on the high seas, states have certain rights over all low-tide elevations.