habitation”.
53 It should also be noted that no island, however self-sufficient, lives
entirely without assistance from the continent. For that reason, the best interpretation
of the provision is one based on reasonableness; after all, if the interpretation is too
restrictive, most or all islands would not be able to sustain human habitation, and if it
is very broad, almost every feature would generate an EEZ and continental shelf of
their own.
54
The arbitrators also held that “sustaining human habitation” means providing
what is necessary to maintain humans alive and healthy over a continuous period of
time, i.e. potable water, food and shelter for a group of people to enable their
residence for an indefinite period of time.
55 By “sustaining”, the Arbitral Tribunal
understood the support and provision of essentials for a healthy life of humans over a
continuous period of time, whereas “habitation” was associated with a “non-transient presence of persons who have chosen to stay and reside on the feature in a
settled manner” (emphasis added).
56 Consequently, a feature that is able to sustain
human habitation solely through the continuous provision of supplies by the continent, the construction of desalination units or the artificial introduction of arable land
would not fulfill the requirement of “sustaining human habitation” pursuant to
Article 121(3) of UNCLOS.
From the analysis supra, it remains clear that the arbitrators considerably rose the
threshold for a natural feature to reach the legal status of island and, thus, to have the
right for an EEZ and a continental shelf of its own. A possible reading of the award,
under a teleological perspective, may consider the Tribunal’s interpretation consistent, for if no difference between human habitation and the mere presence of people
exists, then any islet, with the technology inputs available nowadays, would be
capable of sustaining human life and generating its own EEZ and continental shelf.
In other words, to consider human habitation and the presence of people, one and
the same thing would render Article 121(3) unsatisfactory and contrary to the
provision’s principio-logic genesis, i.e. to limit the expansionist impetus of coastal
States, in order to preserve common spaces and the common heritage of mankind.
Yet, another view is also possible, grounded in the arguments explicated below.
Considering the elaboration of Article 121 effected by the Arbitral Tribunal, it is
pertinent to examine the specific context of the São Pedro and São Paulo Archipelago, and whether the Belmonte Island reaches the threshold of an island entitled to
the benefits contained in Article 121(2) of UNCLOS.
53 South China Sea Arbitration, para 510. That formulation was a clear judicial censure to China’s
policy of artificially building islands and making natural features habitable through substantial
human modification, in order to obtain EEZ and continental shelf areas over vast portions of the
South China Sea.
54 Talmon (2017), p. 873.
55 South China Sea Arbitration, para. 484.
56 South China Sea Arbitration, para. 487.
278
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
53 It should also be noted that no island, however self-sufficient, lives
entirely without assistance from the continent. For that reason, the best interpretation
of the provision is one based on reasonableness; after all, if the interpretation is too
restrictive, most or all islands would not be able to sustain human habitation, and if it
is very broad, almost every feature would generate an EEZ and continental shelf of
their own.
54
The arbitrators also held that “sustaining human habitation” means providing
what is necessary to maintain humans alive and healthy over a continuous period of
time, i.e. potable water, food and shelter for a group of people to enable their
residence for an indefinite period of time.
55 By “sustaining”, the Arbitral Tribunal
understood the support and provision of essentials for a healthy life of humans over a
continuous period of time, whereas “habitation” was associated with a “non-transient presence of persons who have chosen to stay and reside on the feature in a
settled manner” (emphasis added).
56 Consequently, a feature that is able to sustain
human habitation solely through the continuous provision of supplies by the continent, the construction of desalination units or the artificial introduction of arable land
would not fulfill the requirement of “sustaining human habitation” pursuant to
Article 121(3) of UNCLOS.
From the analysis supra, it remains clear that the arbitrators considerably rose the
threshold for a natural feature to reach the legal status of island and, thus, to have the
right for an EEZ and a continental shelf of its own. A possible reading of the award,
under a teleological perspective, may consider the Tribunal’s interpretation consistent, for if no difference between human habitation and the mere presence of people
exists, then any islet, with the technology inputs available nowadays, would be
capable of sustaining human life and generating its own EEZ and continental shelf.
In other words, to consider human habitation and the presence of people, one and
the same thing would render Article 121(3) unsatisfactory and contrary to the
provision’s principio-logic genesis, i.e. to limit the expansionist impetus of coastal
States, in order to preserve common spaces and the common heritage of mankind.
Yet, another view is also possible, grounded in the arguments explicated below.
Considering the elaboration of Article 121 effected by the Arbitral Tribunal, it is
pertinent to examine the specific context of the São Pedro and São Paulo Archipelago, and whether the Belmonte Island reaches the threshold of an island entitled to
the benefits contained in Article 121(2) of UNCLOS.
53 South China Sea Arbitration, para 510. That formulation was a clear judicial censure to China’s
policy of artificially building islands and making natural features habitable through substantial
human modification, in order to obtain EEZ and continental shelf areas over vast portions of the
South China Sea.
54 Talmon (2017), p. 873.
55 South China Sea Arbitration, para. 484.
56 South China Sea Arbitration, para. 487.
278
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho