3. Le rochers qui ne se prêtent pas à l'habitation humaine ou à une vie économique propre
n'ont pas de zone économique exclusive ni de plateau continental.
3. Las rocas no aptas para mantener habitación humana o vida económica propia no tendrán
zona económica exclusiva ni plataforma continental.
Whereas the official versions suggest that the phrase “of their own” could be
interpreted as referring only to economic life, leaving “human habitation” unqualified and unconditioned, the Brazilian wording could indicate that both requirements
of human habitation and economic life are qualified by “of their own”, ergo rising
the threshold for fulfilling both conditions.
Regarding the Archipelago, particularly the Belmonte Island, which hosts the
scientific station, it is indisputable that it consists of a natural land formation
surrounded by water, which is uncovered at high tide. However, the third paragraph
of Article 121 brings to surface specific restrictions which remove the status of island
from certain “rocks” which “cannot sustain human habitation” or which “cannot
sustain economic life of their own”, thereby depriving such rocks from an EEZ and
continental shelf of their own. It is therefore appropriate to analyse and distinguish
these expressions, in particular the last two, in light of the Arbitral award in the South
China Sea Arbitration and pertinent specialized literature, so as to analyse the
Brazilian context hereupon.
4.1 Definition of “Rock” in the Law of the Sea
In the award, the Arbitral Tribunal pondered that the term “rock”, used in paragraph
3, Article 121 of UNCLOS, is not defined by virtue of geological or geomorphological criteria.
36 In other words, Article 121 (3) applies not only to rocky features,
but also to those of sand, clay, coral or other material, so that there would be no
distinction between rocks and islands. Thus, in Stefan Talmon’s view, the effect
would be the same if the provision were: “Islands that cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone or
continental shelf”.
37
In spite of the interpretation embraced by the arbitrators, there are reasons to
disagree with the award. First, because the interpretation is contrary to the ordinary
meaning of the word “rock”.
38 Secondly, if there was no distinction between
“island” and “rock”, one would be left wondering why the drafters of the Convention
opted for the expression “rock”. Third, the travaux préparatoires show that
36 “Moreover, any contrary interpretation imposing a geological criteria on Article 121(3) would
lead to an absurd result”. South China Sea Arbitration (Republic of the Philippines v. People’s
Republic of China). Award 12 of July 2016, para. 481.
37 Talmon (2017), p. 868.
38 The idea of considering the ordinary meaning of a word or an expression in international treaties is
provided for in Art. 31 (1) of the Vienna Convention on the Law of Treaties.
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V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
n'ont pas de zone économique exclusive ni de plateau continental.
3. Las rocas no aptas para mantener habitación humana o vida económica propia no tendrán
zona económica exclusiva ni plataforma continental.
Whereas the official versions suggest that the phrase “of their own” could be
interpreted as referring only to economic life, leaving “human habitation” unqualified and unconditioned, the Brazilian wording could indicate that both requirements
of human habitation and economic life are qualified by “of their own”, ergo rising
the threshold for fulfilling both conditions.
Regarding the Archipelago, particularly the Belmonte Island, which hosts the
scientific station, it is indisputable that it consists of a natural land formation
surrounded by water, which is uncovered at high tide. However, the third paragraph
of Article 121 brings to surface specific restrictions which remove the status of island
from certain “rocks” which “cannot sustain human habitation” or which “cannot
sustain economic life of their own”, thereby depriving such rocks from an EEZ and
continental shelf of their own. It is therefore appropriate to analyse and distinguish
these expressions, in particular the last two, in light of the Arbitral award in the South
China Sea Arbitration and pertinent specialized literature, so as to analyse the
Brazilian context hereupon.
4.1 Definition of “Rock” in the Law of the Sea
In the award, the Arbitral Tribunal pondered that the term “rock”, used in paragraph
3, Article 121 of UNCLOS, is not defined by virtue of geological or geomorphological criteria.
36 In other words, Article 121 (3) applies not only to rocky features,
but also to those of sand, clay, coral or other material, so that there would be no
distinction between rocks and islands. Thus, in Stefan Talmon’s view, the effect
would be the same if the provision were: “Islands that cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone or
continental shelf”.
37
In spite of the interpretation embraced by the arbitrators, there are reasons to
disagree with the award. First, because the interpretation is contrary to the ordinary
meaning of the word “rock”.
38 Secondly, if there was no distinction between
“island” and “rock”, one would be left wondering why the drafters of the Convention
opted for the expression “rock”. Third, the travaux préparatoires show that
36 “Moreover, any contrary interpretation imposing a geological criteria on Article 121(3) would
lead to an absurd result”. South China Sea Arbitration (Republic of the Philippines v. People’s
Republic of China). Award 12 of July 2016, para. 481.
37 Talmon (2017), p. 868.
38 The idea of considering the ordinary meaning of a word or an expression in international treaties is
provided for in Art. 31 (1) of the Vienna Convention on the Law of Treaties.
274
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho