1. 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

2. 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’

3. 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.

4. 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:

5. Features concerned different in nature

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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?