Transcript The South China Sea Arbitration`s Interpretation of Article 121(3)

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-nauticalmile territorial sea
Map by A. Arsana and C. Schofield available at:
http://cil.nus.edu.sg/wp/wpcontent/uploads/2013/03/SCS-AgoraMap_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
̶
Idem
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?