On to the other requirements, technology has made the permanent habitation of
groups of researchers on the Archipelago possible, via wind and solar energy, as well
as water production by reverse osmosis in situ. Here, the Brazilian claim radically
departs from the Chinese, as no substantial human modification has been conducted
to change the islands’ structure nor outlook—technology is being employed exclusively to promote improved living standards to the inhabitants of the Belmonte
Island. Implementation of the PROARQUIPÉLAGO Program would, therefore,
fulfill the requirements of Article 121(3) and grant Brazil full entitlement to a
200-mile EEZ around the Archipelago, an entitlement which has gone unprotested
since the Program’s inception in 1996.
Besides, as already stressed by specialized Law of the Sea scholarship, a strict
application of UNCLOS Article 121(3) would accord many islands solely a territorial sea and a contiguous zone, including the Jan Mayen Island, the Russian islands
of Henrietta and Jeannette, the Heard and McDonald Islands, Bouvet Island,
Clipperton Island, Troumelin Island, Jabal al-Tair Island, Okinotorishima, most of
the Spratly Islands and Paracel, among others.
59 That has not been the case up to
now, and there seems to be no reason why such a strict treatment should be expected
from Brazil.
Concerning the second question, the Brazilian context differs significantly from
the Chinese initiative to “construct” islands out of high-lying coral reefs and
sandbars, in a region strategically relevant for global trade and marked by maritime
border disputes. First, Brazil did not invest substantial human modification so as to
alter the essential geographic characteristics of the rocks in question, as China has
been repeatedly doing.
60 The islands of the São Pedro and São Paulo Archipelago
were not artificially constructed but inhabited. Secondly, the region surrounding the
ASPSP is not nearly as delicate (from a political, military and economic perspective)
as the South China Sea: no maritime boundary dispute exists in the vicinity of the
Archipelago; Brazilian sovereignty over the islands is undisputed; and the region
enjoys but an infinitesimal fraction of shipping business compared to the South
China Sea.
Faced with the recent judgment, the Brazilian position is not a priori shielded
from criticisms, in particular with regard to the requirement of “sustaining human
habitation” and after the recent jurisprudential update on the matter. However, as
discussed above, the wording of Article 121(3) is full of obscurities, the travaux
préparatoires do little to clarify them, and the SCS arbitral award applies to a very
specific geographical and political context, which does not nearly resemble that of
59 Elferink (2016), p. 7.
60 South China Sea arbitral award, para. 562, on the Cuarteron Reef, in which the arbitrators decide
that “While China has constructed an installation and engaged in significant reclamation work at
Cuarteron Reef, this is only possible through dredging and the elevation of the portion of the reef
platform that submerges at high tide”. The Tribunal also found that China engaged in land
reclamation activities in the Fiery Cross Reef (para. 564), and the Gaven Reef (para. 568). Finally,
the arbitral award was clear in that “a rock cannot be transformed into a fully entitled island through
land reclamation” (para. 508).
280
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho
groups of researchers on the Archipelago possible, via wind and solar energy, as well
as water production by reverse osmosis in situ. Here, the Brazilian claim radically
departs from the Chinese, as no substantial human modification has been conducted
to change the islands’ structure nor outlook—technology is being employed exclusively to promote improved living standards to the inhabitants of the Belmonte
Island. Implementation of the PROARQUIPÉLAGO Program would, therefore,
fulfill the requirements of Article 121(3) and grant Brazil full entitlement to a
200-mile EEZ around the Archipelago, an entitlement which has gone unprotested
since the Program’s inception in 1996.
Besides, as already stressed by specialized Law of the Sea scholarship, a strict
application of UNCLOS Article 121(3) would accord many islands solely a territorial sea and a contiguous zone, including the Jan Mayen Island, the Russian islands
of Henrietta and Jeannette, the Heard and McDonald Islands, Bouvet Island,
Clipperton Island, Troumelin Island, Jabal al-Tair Island, Okinotorishima, most of
the Spratly Islands and Paracel, among others.
59 That has not been the case up to
now, and there seems to be no reason why such a strict treatment should be expected
from Brazil.
Concerning the second question, the Brazilian context differs significantly from
the Chinese initiative to “construct” islands out of high-lying coral reefs and
sandbars, in a region strategically relevant for global trade and marked by maritime
border disputes. First, Brazil did not invest substantial human modification so as to
alter the essential geographic characteristics of the rocks in question, as China has
been repeatedly doing.
60 The islands of the São Pedro and São Paulo Archipelago
were not artificially constructed but inhabited. Secondly, the region surrounding the
ASPSP is not nearly as delicate (from a political, military and economic perspective)
as the South China Sea: no maritime boundary dispute exists in the vicinity of the
Archipelago; Brazilian sovereignty over the islands is undisputed; and the region
enjoys but an infinitesimal fraction of shipping business compared to the South
China Sea.
Faced with the recent judgment, the Brazilian position is not a priori shielded
from criticisms, in particular with regard to the requirement of “sustaining human
habitation” and after the recent jurisprudential update on the matter. However, as
discussed above, the wording of Article 121(3) is full of obscurities, the travaux
préparatoires do little to clarify them, and the SCS arbitral award applies to a very
specific geographical and political context, which does not nearly resemble that of
59 Elferink (2016), p. 7.
60 South China Sea arbitral award, para. 562, on the Cuarteron Reef, in which the arbitrators decide
that “While China has constructed an installation and engaged in significant reclamation work at
Cuarteron Reef, this is only possible through dredging and the elevation of the portion of the reef
platform that submerges at high tide”. The Tribunal also found that China engaged in land
reclamation activities in the Fiery Cross Reef (para. 564), and the Gaven Reef (para. 568). Finally,
the arbitral award was clear in that “a rock cannot be transformed into a fully entitled island through
land reclamation” (para. 508).
280
V. Alencar Mayer Feitosa Ventura and E. Cavalcanti Mello Filho