Despite the PROARQUIPÉLAGO Program, which aims at making the rocky
formations compatible with the Convention, a few considerations could eventually
weaken the Brazilian stance, namely the findings of the Arbitral Tribunal in the
course of the dispute between the Philippines and China, which also dealt with the
legal definition of “island”. The next section will analyse the understandings adopted
by international arbitrators, well aware that the award produces effects inter partes
and considering the proper distinctions between Chinese and Brazilian interpretations on the definition of islands, as well as both countries’ practices in that regard.
Finally, this chapter will assess the status of the Archipelago’s rocky formations in
light of the Arbitral Tribunal’s recent decision, in order to ascertain whether recent
judicial understandings pose a threat to the Brazilian position concerning the
ASPSP.
4 The View of the Arbitral Tribunal in the South China Sea
Arbitration
It would be a euphemism to refer to the application of UNCLOS Article 121 as
difficult. It has been and still is a Pandora’s box. State practice regarding that
provision is heterogeneous, considering that the travaux préparatoires of the Convention do not contribute much to a detailed and uniform interpretation,
30 and that
the question had not been subject to a meticulous judicial analysis until 2016.
31
In that year, the Arbitral Tribunal issued an award in the Philippines v. China
case, also known as the South China Sea Arbitration.
32 The dispute involved
Chinese claims for EEZs and continental shelves around islets, reefs and shoals
which China had allegedly turned into islands, in the politically and diplomatically
troubled South China Sea. In a paradigmatic decision, the Arbitral Tribunal determined the legal status of a number of features in the region, so it could ascertain the
due maritime zones and the rights and duties of coastal States therein. The award,
though quintessential to the development of the international islands’ regime and
30 Erik Franckx lists and agrees with a number of authors who regard the travaux préparatoires of
little help in this issue. Among them, David Anderson and Clive Schofield. Franckx points out that
Art. 121 (3) first appeared in the informal single negotiating text (ISNT) in 1975 as a result of many
points of view—there was not only one perspective on the meaning of “rock”. The authors are of the
same opinion, based on the bibliography analysed. Franckx (2014), p. 120.
31 One may mention some of the cases that touched on the question of the legal regime of islands. At
the International Court of Justice: Nicaragua and Colombia (2012), Norway and Denmark (1993),
Romania and Ukraine (2009), Qatar and Bahrain (2001). At the International Tribunal for the Law
of the Sea, Seychelles and France (Monte Confurco case, 2000), Russia and Australia (Volga case,
2002). One can also cite the case at the Permanent Court of Arbitration between Eritrea and Yemen
in 1998.
32 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award
12 of July 2016.
272
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
formations compatible with the Convention, a few considerations could eventually
weaken the Brazilian stance, namely the findings of the Arbitral Tribunal in the
course of the dispute between the Philippines and China, which also dealt with the
legal definition of “island”. The next section will analyse the understandings adopted
by international arbitrators, well aware that the award produces effects inter partes
and considering the proper distinctions between Chinese and Brazilian interpretations on the definition of islands, as well as both countries’ practices in that regard.
Finally, this chapter will assess the status of the Archipelago’s rocky formations in
light of the Arbitral Tribunal’s recent decision, in order to ascertain whether recent
judicial understandings pose a threat to the Brazilian position concerning the
ASPSP.
4 The View of the Arbitral Tribunal in the South China Sea
Arbitration
It would be a euphemism to refer to the application of UNCLOS Article 121 as
difficult. It has been and still is a Pandora’s box. State practice regarding that
provision is heterogeneous, considering that the travaux préparatoires of the Convention do not contribute much to a detailed and uniform interpretation,
30 and that
the question had not been subject to a meticulous judicial analysis until 2016.
31
In that year, the Arbitral Tribunal issued an award in the Philippines v. China
case, also known as the South China Sea Arbitration.
32 The dispute involved
Chinese claims for EEZs and continental shelves around islets, reefs and shoals
which China had allegedly turned into islands, in the politically and diplomatically
troubled South China Sea. In a paradigmatic decision, the Arbitral Tribunal determined the legal status of a number of features in the region, so it could ascertain the
due maritime zones and the rights and duties of coastal States therein. The award,
though quintessential to the development of the international islands’ regime and
30 Erik Franckx lists and agrees with a number of authors who regard the travaux préparatoires of
little help in this issue. Among them, David Anderson and Clive Schofield. Franckx points out that
Art. 121 (3) first appeared in the informal single negotiating text (ISNT) in 1975 as a result of many
points of view—there was not only one perspective on the meaning of “rock”. The authors are of the
same opinion, based on the bibliography analysed. Franckx (2014), p. 120.
31 One may mention some of the cases that touched on the question of the legal regime of islands. At
the International Court of Justice: Nicaragua and Colombia (2012), Norway and Denmark (1993),
Romania and Ukraine (2009), Qatar and Bahrain (2001). At the International Tribunal for the Law
of the Sea, Seychelles and France (Monte Confurco case, 2000), Russia and Australia (Volga case,
2002). One can also cite the case at the Permanent Court of Arbitration between Eritrea and Yemen
in 1998.
32 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award
12 of July 2016.
272
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho