Critical for assessing the entitlement of a land feature to maritime zones is thus
whether an island ‘cannot sustain human habitation or economic life of their own’,
because if not, the islands are deemed ‘rocks’ that do not have an EEZ or continental
shelf.
48
4.1 Decision on Islands in the South China Sea Arbitration
The South China Sea Tribunal undertook a review of the text of Article 121(3), as
well as considering the context, object, and purpose of UNCLOS and the negotiating
history (the travaux préparatoires) to ascertain the meaning of Article 121(3).
Notable in the reasoning was the Tribunal’s dismissal of the relevance of state
practice,
49 as well as its reliance on a policy position of not allocating extensive
maritime zones to the exclusive control of one coastal state based on the presence of
a very small island.
50
The detailed study of the text of Article 121(3)
51 brought to light some critical
characteristics. Notably, the Tribunal considered that a range of basic requirements
would have to be met to establish ‘human habitation’; these requirements being
those ‘necessary to provide for the daily subsistence and survival of a number of
people for an indefinite time’.
52 The Tribunal further noted that ‘[a] feature that is
only capable of sustaining habitation through the continued delivery of supplies
from outside does not meet the requirements of Article 121(3).’
53 In relation to an
‘economic life of their own’, the Tribunal considered inter alia that human engagement would be needed so that the economic life was not simply derived from
extractive activities, particularly where those activities would have no benefit for
any local population on the feature itself.
54 Moreover, the extractive activity had to
occur on the land, or be connected with the land, of the feature itself and not merely
occur in the waters around the feature.
55 In this regard, the Tribunal appeared to be
motivated by the view that the EEZ and the continental shelf had to be for the benefit
of an actual population rather than for the pure economic benefit of a sovereign state
that otherwise has no connection with the land in question in the absence of that
human habitation.
48 UNCLOS, Art. 121(3).
49 South China Sea Arbitration (Award), paras. 552–553. See further Klein (2016), pp. 28–30;
Elferink (2016).
50 See South China Sea Arbitration (Award), paras. 512–520.
51 See South China Sea Arbitration (Award), paras. 482–553.
52 South China Sea Arbitration (Award).
53 South China Sea Arbitration (Award), para. 547.
54 South China Sea Arbitration (Award), paras. 499–500.
55 South China Sea Arbitration (Award), para. 503. As such, economic life derived from the EEZ or
the continental shelf of the feature could not be considered as meeting this criterion. Id., para. 502.
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249
whether an island ‘cannot sustain human habitation or economic life of their own’,
because if not, the islands are deemed ‘rocks’ that do not have an EEZ or continental
shelf.
48
4.1 Decision on Islands in the South China Sea Arbitration
The South China Sea Tribunal undertook a review of the text of Article 121(3), as
well as considering the context, object, and purpose of UNCLOS and the negotiating
history (the travaux préparatoires) to ascertain the meaning of Article 121(3).
Notable in the reasoning was the Tribunal’s dismissal of the relevance of state
practice,
49 as well as its reliance on a policy position of not allocating extensive
maritime zones to the exclusive control of one coastal state based on the presence of
a very small island.
50
The detailed study of the text of Article 121(3)
51 brought to light some critical
characteristics. Notably, the Tribunal considered that a range of basic requirements
would have to be met to establish ‘human habitation’; these requirements being
those ‘necessary to provide for the daily subsistence and survival of a number of
people for an indefinite time’.
52 The Tribunal further noted that ‘[a] feature that is
only capable of sustaining habitation through the continued delivery of supplies
from outside does not meet the requirements of Article 121(3).’
53 In relation to an
‘economic life of their own’, the Tribunal considered inter alia that human engagement would be needed so that the economic life was not simply derived from
extractive activities, particularly where those activities would have no benefit for
any local population on the feature itself.
54 Moreover, the extractive activity had to
occur on the land, or be connected with the land, of the feature itself and not merely
occur in the waters around the feature.
55 In this regard, the Tribunal appeared to be
motivated by the view that the EEZ and the continental shelf had to be for the benefit
of an actual population rather than for the pure economic benefit of a sovereign state
that otherwise has no connection with the land in question in the absence of that
human habitation.
48 UNCLOS, Art. 121(3).
49 South China Sea Arbitration (Award), paras. 552–553. See further Klein (2016), pp. 28–30;
Elferink (2016).
50 See South China Sea Arbitration (Award), paras. 512–520.
51 See South China Sea Arbitration (Award), paras. 482–553.
52 South China Sea Arbitration (Award).
53 South China Sea Arbitration (Award), para. 547.
54 South China Sea Arbitration (Award), paras. 499–500.
55 South China Sea Arbitration (Award), para. 503. As such, economic life derived from the EEZ or
the continental shelf of the feature could not be considered as meeting this criterion. Id., para. 502.
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