24
geological composition of Q32, a feature of the Quitasueño coral-reef bank
(Colombia)—
55
found that the geological or geomorphological composition of
rocks was irrelevant. In particular, the Tribunal observed that, since within Article
121 “rocks are a category of islands” and, under paragraph (1), an island is defined
as a “naturally formed area of land” without any indication of the material it is made
of, “any contrary interpretation imposing a geological criteria on Article 121(3)
would lead to an absurd result”.
56
Moreover, examination of the context of the provision led the Tribunal to consider the meaning of the adverb “naturally” in Article 121 UNCLOS as a whole
which in turn led it to conclude that the category of “[r]ocks which cannot sustain
human habitation or an economic life of their own” includes, inter alia, those features whose status has been artificially transformed by human intervention. As
stated in the Award,
the Tribunal understands the phrase ‘cannot sustain’ to mean ‘cannot, without artificial
addition sustain’. This reading is consistent with the ‘naturally formed’ qualification of the
definition of ‘island’ and the words ‘of their own’ which qualify ‘an economic life’.
57
Besides, as noted in the literature, this interpretation does not exclude the possibility that the capacity (or lack thereof) of a maritime feature to sustain human habitation or an economic life may change as a result of natural phenomena, such as
climate change.
58
Particularly useful in this perspective are the paragraphs of the Award devoted to
the examination of the phrase “cannot sustain human habitation or economic life of
their own”. The Tribunal held, among other things, that the conjunction “or” in that
phrase, rather than indicating an alternative,
59
has the same meaning as the other
“or” used in Article 121(3), where it says that rocks falling within its scope “shall
have no exclusive economic zone or continental shelf”.
60
This means that a feature
will qualify as an island rather than a mere rock, and thus be entitled to the two
55 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012,
para. 37.
56 South China Sea Arbitration (Philippines v. China), Award, para. 481.
57 Ibidem, para. 510.
58 Tanaka (2017), p. 369.
59 South China Sea Arbitration (Philippines v. China), Award, para. 494.
60 Ibidem, para. 496: “The Tribunal does not consider plausible that the drafters of the Convention
would have employed a strictly logical construction for one clause within the parallel structure of
a single sentence and to have departed from such construction for the other”. However, the Tribunal
admitted that the syntax allowed for some exceptions, for instance in the case of “populations
sustaining themselves through a network of related maritime features (…). A population that is
able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the
feature on the grounds that its habitation is not sustained by a single feature individually. Likewise
a population whose livelihood and economic life extend across a constellation of maritime features
is not disabled form recognising that such features possess an economic life of their own merely
because not all the features are directly inhabited” (para. 544).
R. Virzo
geological composition of Q32, a feature of the Quitasueño coral-reef bank
(Colombia)—
55
found that the geological or geomorphological composition of
rocks was irrelevant. In particular, the Tribunal observed that, since within Article
121 “rocks are a category of islands” and, under paragraph (1), an island is defined
as a “naturally formed area of land” without any indication of the material it is made
of, “any contrary interpretation imposing a geological criteria on Article 121(3)
would lead to an absurd result”.
56
Moreover, examination of the context of the provision led the Tribunal to consider the meaning of the adverb “naturally” in Article 121 UNCLOS as a whole
which in turn led it to conclude that the category of “[r]ocks which cannot sustain
human habitation or an economic life of their own” includes, inter alia, those features whose status has been artificially transformed by human intervention. As
stated in the Award,
the Tribunal understands the phrase ‘cannot sustain’ to mean ‘cannot, without artificial
addition sustain’. This reading is consistent with the ‘naturally formed’ qualification of the
definition of ‘island’ and the words ‘of their own’ which qualify ‘an economic life’.
57
Besides, as noted in the literature, this interpretation does not exclude the possibility that the capacity (or lack thereof) of a maritime feature to sustain human habitation or an economic life may change as a result of natural phenomena, such as
climate change.
58
Particularly useful in this perspective are the paragraphs of the Award devoted to
the examination of the phrase “cannot sustain human habitation or economic life of
their own”. The Tribunal held, among other things, that the conjunction “or” in that
phrase, rather than indicating an alternative,
59
has the same meaning as the other
“or” used in Article 121(3), where it says that rocks falling within its scope “shall
have no exclusive economic zone or continental shelf”.
60
This means that a feature
will qualify as an island rather than a mere rock, and thus be entitled to the two
55 ICJ, Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 19 November 2012,
para. 37.
56 South China Sea Arbitration (Philippines v. China), Award, para. 481.
57 Ibidem, para. 510.
58 Tanaka (2017), p. 369.
59 South China Sea Arbitration (Philippines v. China), Award, para. 494.
60 Ibidem, para. 496: “The Tribunal does not consider plausible that the drafters of the Convention
would have employed a strictly logical construction for one clause within the parallel structure of
a single sentence and to have departed from such construction for the other”. However, the Tribunal
admitted that the syntax allowed for some exceptions, for instance in the case of “populations
sustaining themselves through a network of related maritime features (…). A population that is
able to inhabit an area only by making use of multiple maritime features does not fail to inhabit the
feature on the grounds that its habitation is not sustained by a single feature individually. Likewise
a population whose livelihood and economic life extend across a constellation of maritime features
is not disabled form recognising that such features possess an economic life of their own merely
because not all the features are directly inhabited” (para. 544).
R. Virzo