considered the SCS award well-founded and praised the clarification offered by the
arbitrators to the question. According to Elferink:
limiting the term’ rocks’ to features composed of rock would lead to according ‘features
[that] are more ephemeral than a geological rock and may shift location or appear and
disappear above high water as a result of conditions over time’ greater entitlements than
more stable and permanent features.
43
The Arbitral Tribunal’s argument is based on a teleological interpretation
44 of
UNCLOS Article 121: if the provision creates limits, then excluding features that are
less stable than rocks and that cannot sustain human habitation or economic life of
their own does not make any sense.
45 Indeed, a contrary interpretation is nonsensical, as it would diminish the common heritage of mankind, engender disputes and
disregard the specific historical purposes of maritime spaces, such as the EEZ or
continental shelf.
46
In any case, the Tribunal held that if one considers the ordinary meaning of
“rock”, one would reason that it is an aggregate of minerals and eventually organic
matter, i.e. the geological definition would be equally broad.
47 Should this argument
not persuade the lawyer, one must recall that the legal concept of a continental shelf
is different from the geological one.
48
Transposing the discussion on whether rocks are to be interpreted in their
scientific or legal meaning, comprising more or less features to the Brazilian case
study suggested in this chapter, it seems undeniable that the natural formations of the
São Pedro and São Paulo Archipelago are rocky features, in the sense attributed by
the Arbitral Tribunal.
Thus, the debate may not make that much of a difference to Brazil at first sight.
However, there are States that claim maritime spaces derived from non-rocky
formations which can hardly sustain human habitation or economic life of their
43 Elferink (2016), p. 2.
44 Art. 31(1) of the Vienna Convention on the Law of Treaties (VLCT) is clear when it stipulates that
a treaty should be interpreted in light of its object and purpose, enshrining the teleological
interpretation as an important hermeneutical method in international law. According to Art. 32 of
the VCLT, the analysis of the travoux préparatoires must be an additional interpretative resource.
45 There is also an international precedent that Quitasueño, a Colombian protrusion of coral, was
considered a rock, in the sense of Art. 121(3). “International law defines an island by reference to
whether it is ‘naturally formed’ and whether it is above water at high tide, not by reference to its
geological composition . . . The fact that the feature is composed of coral is irrelevant”. Territorial
and Maritime Dispute (Nicaragua v. Colombia), Merits Judgment, ICJ Reports 2012, pp. 624–645,
para. 37.
46 Charney argues that, just as one can say that telos is the maximization of common spaces, it can be
argued that during the conference there was a without precedents expansion of maritime spaces
under state jurisdiction and that this could be considered the greatest goal achieved during the
Conference. Charney (1999), p. 866.
47 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award
12 of July 2016, para. 480.
48 The legal concept encompasses the continental shelf in the geological sense, the slope, and the
continental rise.
276
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
arbitrators to the question. According to Elferink:
limiting the term’ rocks’ to features composed of rock would lead to according ‘features
[that] are more ephemeral than a geological rock and may shift location or appear and
disappear above high water as a result of conditions over time’ greater entitlements than
more stable and permanent features.
43
The Arbitral Tribunal’s argument is based on a teleological interpretation
44 of
UNCLOS Article 121: if the provision creates limits, then excluding features that are
less stable than rocks and that cannot sustain human habitation or economic life of
their own does not make any sense.
45 Indeed, a contrary interpretation is nonsensical, as it would diminish the common heritage of mankind, engender disputes and
disregard the specific historical purposes of maritime spaces, such as the EEZ or
continental shelf.
46
In any case, the Tribunal held that if one considers the ordinary meaning of
“rock”, one would reason that it is an aggregate of minerals and eventually organic
matter, i.e. the geological definition would be equally broad.
47 Should this argument
not persuade the lawyer, one must recall that the legal concept of a continental shelf
is different from the geological one.
48
Transposing the discussion on whether rocks are to be interpreted in their
scientific or legal meaning, comprising more or less features to the Brazilian case
study suggested in this chapter, it seems undeniable that the natural formations of the
São Pedro and São Paulo Archipelago are rocky features, in the sense attributed by
the Arbitral Tribunal.
Thus, the debate may not make that much of a difference to Brazil at first sight.
However, there are States that claim maritime spaces derived from non-rocky
formations which can hardly sustain human habitation or economic life of their
43 Elferink (2016), p. 2.
44 Art. 31(1) of the Vienna Convention on the Law of Treaties (VLCT) is clear when it stipulates that
a treaty should be interpreted in light of its object and purpose, enshrining the teleological
interpretation as an important hermeneutical method in international law. According to Art. 32 of
the VCLT, the analysis of the travoux préparatoires must be an additional interpretative resource.
45 There is also an international precedent that Quitasueño, a Colombian protrusion of coral, was
considered a rock, in the sense of Art. 121(3). “International law defines an island by reference to
whether it is ‘naturally formed’ and whether it is above water at high tide, not by reference to its
geological composition . . . The fact that the feature is composed of coral is irrelevant”. Territorial
and Maritime Dispute (Nicaragua v. Colombia), Merits Judgment, ICJ Reports 2012, pp. 624–645,
para. 37.
46 Charney argues that, just as one can say that telos is the maximization of common spaces, it can be
argued that during the conference there was a without precedents expansion of maritime spaces
under state jurisdiction and that this could be considered the greatest goal achieved during the
Conference. Charney (1999), p. 866.
47 South China Sea Arbitration (Republic of the Philippines v. People’s Republic of China). Award
12 of July 2016, para. 480.
48 The legal concept encompasses the continental shelf in the geological sense, the slope, and the
continental rise.
276
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho