negotiators made efforts to emphasize that not every island is a rock.
39 In short,
drafters sought a regime that would not have every insular feature generating vast
maritime spaces subject to national jurisdiction, at the expense of the rest of
humankind. Concerns with preserving the concept of common heritage of mankind
(nowadays turned into principle) were deeply embedded in the UNCLOS
negotiations.
Hence, during the negotiations on Article 121, it was suggested that certain
features should not have an EEZ and continental shelf, as delegations sharpened
the legal definition of islands, islets, low-tide elevations, and rocks. For instance, the
provision corresponding to Article 121 appeared in the ISNT (Informal Single
Negotiating Text) and excluded low-tide elevations from the definition of island,
thus determining that “rocks which cannot sustain human habitation or economic life
of their own shall not generate EEZ and continental shelf”.
40 Some States even
suggested the inclusion of “small islands” and “islets” in the provision, but were
faced with fierce objection by several Pacific Small Islands, Developing States, and
others. With great representativeness, small island nations opposed the suggestion,
fought so that non-rock formations were not included in such a provision, and
succeeded.
In the end, two possible interpretations of the reasoning adopted by the Arbitral
Tribunal emerged. On the one side, based on the previously mentioned arguments,
scholars who have embraced a strict reading of the term “rocks”, referring only to
rocky features, geologically speaking, criticized the decision as flawed. For Stefan
Talmon, the award is
contrary to the ordinary meaning of the term to treat any area of land irrespective of its
composition as a ‘rock’. Second, the term ‘rocks’ in Article 121 (3) would be devoid of a
distinct meaning and one might wonder why the drafters did not employ the term island, if
that is what they intended. Third, and most importantly, the interpretation is not in accordance with the drafting history of the provision.
41
On the other side, Barbara Kwiatkowska and Alfred Soons (the latter having
participated as an arbitrator in the SCS Arbitration), commented after a meticulous
analysis of Article 121’s legislative history, that no normative element supports the
distinction between rocks in a geological sense and other islands. Even during the
Third Conference, the term “rock” was said to be used neither in legal nor scientific
senses, thereby referring to any insular formation, not just literal rocks, but also sand,
clay, corals or other material.
42 Following that same line of reasoning, Alex Elferink
39 In 1999, Jonathan Charney stated that there was no observable clarification in the travaux
préparatoires, which is why he proceeded to analyse the ordinary meaning of the term “rocks”,
stating that it is controversial. Charney (1999), pp. 867–868.
40 UNCLOS III. Informal Single Negotiating Text, Part II. UN Doc. A/CONF.62/WP.8/PART II,
1975, OR IV, 152, 170–171.
41 Talmon (2017) p. 869.
42 It was the case of the Venezuelan delegate, Falcon Briceno. For further detail, see Franckx (2014),
p. 114.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
275
39 In short,
drafters sought a regime that would not have every insular feature generating vast
maritime spaces subject to national jurisdiction, at the expense of the rest of
humankind. Concerns with preserving the concept of common heritage of mankind
(nowadays turned into principle) were deeply embedded in the UNCLOS
negotiations.
Hence, during the negotiations on Article 121, it was suggested that certain
features should not have an EEZ and continental shelf, as delegations sharpened
the legal definition of islands, islets, low-tide elevations, and rocks. For instance, the
provision corresponding to Article 121 appeared in the ISNT (Informal Single
Negotiating Text) and excluded low-tide elevations from the definition of island,
thus determining that “rocks which cannot sustain human habitation or economic life
of their own shall not generate EEZ and continental shelf”.
40 Some States even
suggested the inclusion of “small islands” and “islets” in the provision, but were
faced with fierce objection by several Pacific Small Islands, Developing States, and
others. With great representativeness, small island nations opposed the suggestion,
fought so that non-rock formations were not included in such a provision, and
succeeded.
In the end, two possible interpretations of the reasoning adopted by the Arbitral
Tribunal emerged. On the one side, based on the previously mentioned arguments,
scholars who have embraced a strict reading of the term “rocks”, referring only to
rocky features, geologically speaking, criticized the decision as flawed. For Stefan
Talmon, the award is
contrary to the ordinary meaning of the term to treat any area of land irrespective of its
composition as a ‘rock’. Second, the term ‘rocks’ in Article 121 (3) would be devoid of a
distinct meaning and one might wonder why the drafters did not employ the term island, if
that is what they intended. Third, and most importantly, the interpretation is not in accordance with the drafting history of the provision.
41
On the other side, Barbara Kwiatkowska and Alfred Soons (the latter having
participated as an arbitrator in the SCS Arbitration), commented after a meticulous
analysis of Article 121’s legislative history, that no normative element supports the
distinction between rocks in a geological sense and other islands. Even during the
Third Conference, the term “rock” was said to be used neither in legal nor scientific
senses, thereby referring to any insular formation, not just literal rocks, but also sand,
clay, corals or other material.
42 Following that same line of reasoning, Alex Elferink
39 In 1999, Jonathan Charney stated that there was no observable clarification in the travaux
préparatoires, which is why he proceeded to analyse the ordinary meaning of the term “rocks”,
stating that it is controversial. Charney (1999), pp. 867–868.
40 UNCLOS III. Informal Single Negotiating Text, Part II. UN Doc. A/CONF.62/WP.8/PART II,
1975, OR IV, 152, 170–171.
41 Talmon (2017) p. 869.
42 It was the case of the Venezuelan delegate, Falcon Briceno. For further detail, see Franckx (2014),
p. 114.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
275