pronounced by a Tribunal composed by well-renowned jurists, is not
uncontroversial.
33
The context of the dispute is extensively known. In the last decade, China has
militarized the region, built artificial islands, and pursued practices contrary to the
Law of the Sea, including the claiming of sovereignty over the so-called 9-dash line,
as well as a great part of the Spratly Islands, which would grant the country large
portions of EEZs and continental shelves. In the face of such actions, the Philippines
took the issue to an Arbitral Tribunal through the UNCLOS compulsory dispute
settlement mechanism.
34
The starting point for the examination of the dispute was to determine the exact
scope of UNCLOS’ provisions governing the islands’ regime—Article 121 (1) to
(3). After all, in the South China Sea, six countries claim total or partial sovereignty
over the Spratly Islands, at a region key for international shipping and supposedly
rich in hydrocarbons. At the core of the Philippines’ argument is the claim that China
has no support of the Law of the Sea to establish the nine-dash line and that all
formations over which China claims sovereignty are either low-tide elevations or fall
under Article 121 (3) of UNCLOS, thereby not generating an EEZ or continental
shelf of their own.
35
That quarrel involves variables far more complex than the ones Brazil has ever
had to face in the West side of the South Atlantic Ocean, a relatively calm zone in
terms of boundary disputes and diplomatic controversies. Nonetheless, as
announced in the introduction, it is of scientific and academic relevance to assess
the Brazilian stance regarding the Archipelago of São Pedro and São Paulo in light of
the recent understandings adopted within the aforementioned award. A particularly
thorny question that the Arbitral Tribunal had to decide upon concerned the definition of “rock” and of the condition of “sustain[ing] human habitation or economic
life of their own”.
In Brazil, wording given by Decree 99.165/90 (which domestically promulgates
the UNCLOS) to paragraph 3 mentions “rochedos que, por si próprios, não se
prestam à habitação humana ou a vida econômica”—rocks which, on their own,
cannot sustain human habitation or economic life. The Brazilian version differs
slightly from the official texts in Spanish, French and English, accordingly:
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.
33 The arbitrators appointed by the parties were Thomas Mensah, Jean-Pierre Cot, Stanislaw Pawlak,
Rüdiger Wolfrum and Alfred Soons. The first four are or have been judges at the International
Tribunal for the Law of the Sea, and Professor Soons, who is recognized for his studies on marine
scientific research, has written an influential work on UNCLOS Article 121. See Kwiatkowska and
Soons (1990), pp. 139–151.
34 That was the Philippine strategy, for sovereignty issues do not fall within the ratione materiae
jurisdiction of the tribunals of UNCLOS Art. 287, and because China chose to exit the compulsory
settlement of disputes on delimitation and analysis of historical titles and bays.
35 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award
12 of July 2016, para. 112.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
273
uncontroversial.
33
The context of the dispute is extensively known. In the last decade, China has
militarized the region, built artificial islands, and pursued practices contrary to the
Law of the Sea, including the claiming of sovereignty over the so-called 9-dash line,
as well as a great part of the Spratly Islands, which would grant the country large
portions of EEZs and continental shelves. In the face of such actions, the Philippines
took the issue to an Arbitral Tribunal through the UNCLOS compulsory dispute
settlement mechanism.
34
The starting point for the examination of the dispute was to determine the exact
scope of UNCLOS’ provisions governing the islands’ regime—Article 121 (1) to
(3). After all, in the South China Sea, six countries claim total or partial sovereignty
over the Spratly Islands, at a region key for international shipping and supposedly
rich in hydrocarbons. At the core of the Philippines’ argument is the claim that China
has no support of the Law of the Sea to establish the nine-dash line and that all
formations over which China claims sovereignty are either low-tide elevations or fall
under Article 121 (3) of UNCLOS, thereby not generating an EEZ or continental
shelf of their own.
35
That quarrel involves variables far more complex than the ones Brazil has ever
had to face in the West side of the South Atlantic Ocean, a relatively calm zone in
terms of boundary disputes and diplomatic controversies. Nonetheless, as
announced in the introduction, it is of scientific and academic relevance to assess
the Brazilian stance regarding the Archipelago of São Pedro and São Paulo in light of
the recent understandings adopted within the aforementioned award. A particularly
thorny question that the Arbitral Tribunal had to decide upon concerned the definition of “rock” and of the condition of “sustain[ing] human habitation or economic
life of their own”.
In Brazil, wording given by Decree 99.165/90 (which domestically promulgates
the UNCLOS) to paragraph 3 mentions “rochedos que, por si próprios, não se
prestam à habitação humana ou a vida econômica”—rocks which, on their own,
cannot sustain human habitation or economic life. The Brazilian version differs
slightly from the official texts in Spanish, French and English, accordingly:
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf.
33 The arbitrators appointed by the parties were Thomas Mensah, Jean-Pierre Cot, Stanislaw Pawlak,
Rüdiger Wolfrum and Alfred Soons. The first four are or have been judges at the International
Tribunal for the Law of the Sea, and Professor Soons, who is recognized for his studies on marine
scientific research, has written an influential work on UNCLOS Article 121. See Kwiatkowska and
Soons (1990), pp. 139–151.
34 That was the Philippine strategy, for sovereignty issues do not fall within the ratione materiae
jurisdiction of the tribunals of UNCLOS Art. 287, and because China chose to exit the compulsory
settlement of disputes on delimitation and analysis of historical titles and bays.
35 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award
12 of July 2016, para. 112.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
273