own. The arbitral award, alongside the teleological interpretation espoused therein,
thus remains relevant for the analysis of islands, rocks and the legal treatment given
to them by Article 121 of UNCLOS, in corners of world other than the South
China Sea.
4.2 The Requirement for Rocks to Sustain Human Habitation
or Economic Life of Their Own: The Case of the ASPSP
The arbitral award found that the name of a feature provides no guidance as to
whether it can sustain human habitation or an economic life of its own.
49 It is thus
worth analysing the award’s findings in relation to those requirements pursuant to
Article 121(3) of UNCLOS, which enable a rock to generate an EEZ and continental
shelf of its own. According to the SCS award,
50 the concerned feature must fulfill
just one of the requirements, whether being able to sustain human habitation or to
sustain an economic life of its own, since the wording of the Convention uses the
conjunction “or” to indicate alternative conditions.
51
In Brazil, the
PROARQUIPÉLAGO opted for satisfying the first condition, adjusting the islands
to sustaining permanent human habitation.
However, the question that defines the status of Belmonte as an island which
generates an EEZ and continental shelf of its own is: can it really sustain human
habitation? It is therefore necessary to examine whether the detailed reading of the
SCS award could raise further questions regarding the ability of the Archipelago to
fulfill the requirements of Article 121(3).
According to the Arbitral Tribunal, the habitability requirement is a matter of
capacity (can), objectively observable, not a de facto state. That is, the rock may
currently not have inhabitants, but it must be capable of sustaining human habitation.
Furthermore, the feature must sustain human habitation “in its natural capacity”,
i.e. without the “introduction of technology and extraneous materials”,
52 so that the
provision should be read as “cannot sustain, without artificial addition, human
49 South China Sea Arbitration, para. 482.
50 South China Sea Arbitration, paras. 494–496.
51 The majority of the doctrine follows this understanding. In the travaux préparatoires, the particle
“and” was replaced by “or”. However, Franckx disagrees, because, in his view, it makes the
provision useless. He argues that some States may defend that maintaining “military personnel
and scientists” or “promoting fishing activity on the coast and the exploitation of mineral resources”
removes the incidence of paragraph 3. Using logical-linguistic arguments, Franckx concludes that
the promotion of human habitation and economic life in the concerned feature occur almost
indistinctly. It is, however, a minority position, with which the present authors do not agree. See
Franckx (2014), pp. 116–117.
52 South China Sea Arbitration, para 509.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
277
thus remains relevant for the analysis of islands, rocks and the legal treatment given
to them by Article 121 of UNCLOS, in corners of world other than the South
China Sea.
4.2 The Requirement for Rocks to Sustain Human Habitation
or Economic Life of Their Own: The Case of the ASPSP
The arbitral award found that the name of a feature provides no guidance as to
whether it can sustain human habitation or an economic life of its own.
49 It is thus
worth analysing the award’s findings in relation to those requirements pursuant to
Article 121(3) of UNCLOS, which enable a rock to generate an EEZ and continental
shelf of its own. According to the SCS award,
50 the concerned feature must fulfill
just one of the requirements, whether being able to sustain human habitation or to
sustain an economic life of its own, since the wording of the Convention uses the
conjunction “or” to indicate alternative conditions.
51
In Brazil, the
PROARQUIPÉLAGO opted for satisfying the first condition, adjusting the islands
to sustaining permanent human habitation.
However, the question that defines the status of Belmonte as an island which
generates an EEZ and continental shelf of its own is: can it really sustain human
habitation? It is therefore necessary to examine whether the detailed reading of the
SCS award could raise further questions regarding the ability of the Archipelago to
fulfill the requirements of Article 121(3).
According to the Arbitral Tribunal, the habitability requirement is a matter of
capacity (can), objectively observable, not a de facto state. That is, the rock may
currently not have inhabitants, but it must be capable of sustaining human habitation.
Furthermore, the feature must sustain human habitation “in its natural capacity”,
i.e. without the “introduction of technology and extraneous materials”,
52 so that the
provision should be read as “cannot sustain, without artificial addition, human
49 South China Sea Arbitration, para. 482.
50 South China Sea Arbitration, paras. 494–496.
51 The majority of the doctrine follows this understanding. In the travaux préparatoires, the particle
“and” was replaced by “or”. However, Franckx disagrees, because, in his view, it makes the
provision useless. He argues that some States may defend that maintaining “military personnel
and scientists” or “promoting fishing activity on the coast and the exploitation of mineral resources”
removes the incidence of paragraph 3. Using logical-linguistic arguments, Franckx concludes that
the promotion of human habitation and economic life in the concerned feature occur almost
indistinctly. It is, however, a minority position, with which the present authors do not agree. See
Franckx (2014), pp. 116–117.
52 South China Sea Arbitration, para 509.
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
277