the ASPSP. If one embraces a purely teleological interpretation of Article 121, Brazil
could be accused of being “territorialist”
61 and creeping on jurisdiction, so as to
argue that if every islet were able to generate extensive maritime spaces, common
spaces would be reduced, humanity would be threatened, and therefore the object
and purpose of the Convention would be compromised.
62 Such an argument,
regardless of how well-intentioned (and noting that it could and will make sense in
specific cases), must be analysed casuistically, at the risk of equating rocky islands to
barren rocks that merely emerge constantly out of water.
In International Law, no activity is as arbitrary as defining the telos of a treaty
given that a great deal of preconceptions is likely to influence the analyser. In other
words, to assert that the outstanding telos of the UNCLOS in respect of islands was
to maximize common areas of the ocean is a biased way of looking at the objectives
of the Convention. In such an analysis, one also ought to take into account that
power struggles informed the Third Conference and the Convention itself, thus
favouring the enlargement of maritime spaces under national jurisdiction as never
before. That occurred, however, in a conditioned and principled manner.
The Convention’s package deal approach shows how delegates had to handle
divergent interests. To draw a single purpose out of such divergence would be, to say
the least, arbitrary. Were it not for the struggle of “territorialists”, the current regime
of the EEZ and the (extended) continental shelf would have been unimaginable.
These spaces are undoubtedly one of the great victories of coastal nations, many
developing, which have crafted an overall fairer international public oceanic order.
That some countries may individually take domestic measures that breach the
Convention and cause widespread censure by the international community, as
seems to be the case in the SCS disputes, one must count with that. Yet, such
isolated and punctual violations must not inform the actions and claims of every
other State in other parts of the world.
Moreover, that the common heritage of mankind may not be as large as it could
be, following the proclamation of EEZs around islands worldwide, is a result of the
package deal agreed in the Third Conference, in which coastal States were considered increased jurisdiction seawards.
63 Should the drafters of the Convention have
61 The term “territorialist” comes between inverted comas, so as to highlight that the authors are not
comfortable with a label which has been frequently employed to portray all national jurisdictional
assertions seaward as inherently nefarious to the ordre publique océanique, regardless of context or
the justification provided. For more on that position, see Ventura (2018), pp. 166–168.
62 The argument according to which islands with EEZs and continental shelves would shorten the
common heritage of mankind was first forwarded by Tommy Koh, the father of the famous
expression “Constitution of the oceans”. According to Koh, “it would be unjust, and the common
heritage of mankind would be further diminished, if every island, irrespective of its characteristics,
was automatically entitled to claim a uniform economic zone”. See “Summary Records of Meetings
of the Second Committee, 39th Meeting,” UN Doc. A/CONF.62/C.2/SR.39 p. 285, para.
72 (14 August 1974) (Statement of the Representative of Singapore).
63 Note only that there is no “shrinkage” of the Area in sight, as the legal construct of the common
heritage of mankind and the right to an EEZ and (extended) continental shelf emerge to the legal
world simultaneously. As a matter of logics, coastal States with islands cannot be haunted for
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
281
could be accused of being “territorialist”
61 and creeping on jurisdiction, so as to
argue that if every islet were able to generate extensive maritime spaces, common
spaces would be reduced, humanity would be threatened, and therefore the object
and purpose of the Convention would be compromised.
62 Such an argument,
regardless of how well-intentioned (and noting that it could and will make sense in
specific cases), must be analysed casuistically, at the risk of equating rocky islands to
barren rocks that merely emerge constantly out of water.
In International Law, no activity is as arbitrary as defining the telos of a treaty
given that a great deal of preconceptions is likely to influence the analyser. In other
words, to assert that the outstanding telos of the UNCLOS in respect of islands was
to maximize common areas of the ocean is a biased way of looking at the objectives
of the Convention. In such an analysis, one also ought to take into account that
power struggles informed the Third Conference and the Convention itself, thus
favouring the enlargement of maritime spaces under national jurisdiction as never
before. That occurred, however, in a conditioned and principled manner.
The Convention’s package deal approach shows how delegates had to handle
divergent interests. To draw a single purpose out of such divergence would be, to say
the least, arbitrary. Were it not for the struggle of “territorialists”, the current regime
of the EEZ and the (extended) continental shelf would have been unimaginable.
These spaces are undoubtedly one of the great victories of coastal nations, many
developing, which have crafted an overall fairer international public oceanic order.
That some countries may individually take domestic measures that breach the
Convention and cause widespread censure by the international community, as
seems to be the case in the SCS disputes, one must count with that. Yet, such
isolated and punctual violations must not inform the actions and claims of every
other State in other parts of the world.
Moreover, that the common heritage of mankind may not be as large as it could
be, following the proclamation of EEZs around islands worldwide, is a result of the
package deal agreed in the Third Conference, in which coastal States were considered increased jurisdiction seawards.
63 Should the drafters of the Convention have
61 The term “territorialist” comes between inverted comas, so as to highlight that the authors are not
comfortable with a label which has been frequently employed to portray all national jurisdictional
assertions seaward as inherently nefarious to the ordre publique océanique, regardless of context or
the justification provided. For more on that position, see Ventura (2018), pp. 166–168.
62 The argument according to which islands with EEZs and continental shelves would shorten the
common heritage of mankind was first forwarded by Tommy Koh, the father of the famous
expression “Constitution of the oceans”. According to Koh, “it would be unjust, and the common
heritage of mankind would be further diminished, if every island, irrespective of its characteristics,
was automatically entitled to claim a uniform economic zone”. See “Summary Records of Meetings
of the Second Committee, 39th Meeting,” UN Doc. A/CONF.62/C.2/SR.39 p. 285, para.
72 (14 August 1974) (Statement of the Representative of Singapore).
63 Note only that there is no “shrinkage” of the Area in sight, as the legal construct of the common
heritage of mankind and the right to an EEZ and (extended) continental shelf emerge to the legal
world simultaneously. As a matter of logics, coastal States with islands cannot be haunted for
15 The Legal Status of the São Pedro and São Paulo Archipelago in Light of Article. . .
281