The South China Sea Arbitration’s Interpretation of Article 121(3): A Disquieting First? Netherlands Institute for the Law of the Sea (NILOS) Utrecht Centre for Oceans, Water and Sustainability Law School of Law, Utrecht University Symposium on the South China Sea Award 7 December 2016 Alex G. Oude Elferink Netherlands Institute for the Law of the Sea K.G. Jebsen Centre for the Law of the Sea, University of Tromsø

Overview of the presentation The legal rule under consideration – article 121(3) of the United Nations Convention on the Law of the Sea (LOSC) Maritime entitlements of islands in the South China Sea: Why does it matter? The Tribunal’s interpretation of article 121(3) LOSC Assessment of number of aspects of the Tribunal’s approach Implications beyond the specific context of the South China Sea disputes Post on the website of the Jebsen Centre for the law of the sea ‘The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: A Disquieting First’

LOSC, Article 121 – Regime of islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.

Maritime entitlements of islands in the South China Sea: Why does it matter? Arbitration concerned with Spratly Islands and Scarborough Reef (Shoal) If these islands have continental shelf and exclusive economic zone and if China has sovereignty, China has potential LOSC entitlements to most of the southern part of the South China Sea Implies need for delimitation; compulsory dispute settlement of this matter under LOSC precluded If the islands article 121(3) rocks they have a 12-nautical-mile territorial sea Map by A. Arsana and C. Schofield available at: http://cil.nus.edu.sg/wp/wp-content/uploads/2013/03/SCS-Agora-Map_wCopyright.gif

Features concerned different in nature

Findings of the Award on article 121(3) Geological composition of the feature not relevant; concerns both islands consisting of solid rock and islands composed of sand or coral Interpretation in line with Vienna Convention on the Law of Treaties (VCLT) rules Welcome clarification of this point Requirement of ‘cannot sustain’ does not require actual habitation or economic life of their own Idem ‘Or’ between the words ‘human habitation’ and ‘economic life’ implies two separate requirements, which do not have to be met at the same time to escape article 121(3) of the LOSC

Findings of the Award on article 121(3) - Human habitation “[a]t a minimum, sustained human habitation would require that a feature be able to support, maintain, and provide food, drink, and shelter to some humans to enable them to reside there permanently or habitually over an extended period of time” (SCSA, para. 490) “[t]he term “human habitation” should be understood to involve the inhabitation of the feature by a stable community of people for whom the feature constitutes a home and on which they can remain” (SCSA, para. 542) High threshold, but defendable

Findings of the Award on article 121(3) – Size as a criterion “[S]ize cannot be dispositive of a feature’s status as a fully entitled island or rock and is not, on its own, a relevant factor” Problematical Tribunal does not follow VCLT approach in looking at this term Requires to first look at ordinary meaning the terms of the treaty in their context and in the light of its object and purpose Article 121 distinguishes between islands and rocks and para. 3 only applies to rocks Ordinary meaning of term rock: referring to feature of limited size Confirmed by drafting history of the LOSC: distinction between islands, islets and rocks UNCLOS III references to islets imply that these are less than one square kilometer

Findings of the Award on article 121(3) – Economic life of their own “[O]ne-off transaction or short-lived venture would not constitute a sustained economic life” (SCSA, para. 499) “VCLT proof” Economic life of their own dependent on human habitation Problematical Makes this requirement ancillary to criterion of human habitation and not an independent factor Not corroborated by drafting history Extractive industry does not count as economic life of their own Premised on unconvincing argument that “economic life of their own” requires the presence of a local population Mere fact that outside support is needed to develop an economic activity on an island does not mean that this activity is not the result of the presence of resources or services of the island and in that sense is the island’s economic life of its own

Applying the Award beyond the South China Sea Potential application to many islands that are presently not considered rocks Jan Mayen 320 square kilometers, but size does not matter Personnel of a weather station and scientists: not human habitation No economic life of its own; past economic activities of an extractive nature Unlikely that Jan Mayen can sustain human habitation and economic life of its own as defined by the tribunal 1981 Jan Mayen Conciliation report and 1993 Jan Mayen judgment did conclude that Jan Mayen was a fully entitled island Post also comments on Jabal al-Tair and Kerguelen Islands and Heard and McDonald Islands

Future impact of the Award? Abyss between the tribunal’s approach and the practice of many States If this situation prevails, China’s unease with the LOSC may not be confined to section 2 of Part XV of the Convention, because of different treatment of islands and resulting perceived unfairness Compulsory dispute settlement provisions of the LOSC, which were intended to guarantee its uniform interpretation and application and thereby its stability, in this case may achieve exactly the opposite result Will the judiciary follow the tribunal’s approach in the future?