South-China Sea: Interpreting Article 121(3) of the UNCLOS

Background

Pending a long-standing maritime dispute, the Republic of the Philippines formally initiated an arbitral proceeding against the People’s Republic of China on the 22^nd of January 2013, under Article 287 and Annex VII of the United Nations Convention on Law of the Sea (“UNCLOS“). The Philippines v. China arbitration, popularly known as the “South China Sea Dispute,” has been an ongoing dispute for decades. This dispute concerns the South China Sea, a semi-enclosed water body, which is surrounded by China and multiple small and militarily weak nations like the Philippines, Brunei, and Vietnam. The dispute arose as China wished to extend its sovereignty and jurisdiction to nearly hundreds of reefs, islets, and surrounding territorial waters.

In 2002, China signed the Declaration on the Conduct of Parties in the South China Sea with the ASEAN nations. This declaration, being non-binding, could curtail the actions of the Chinese delegation only for a brief period. Given its extensive military reach and sizable nature, as compared to the other parties to the dispute, China disregarded all attempts undertaken for the resolution of the dispute and began using coercive diplomatic strategies to deter other parties from exercising their claims.

Owing to China’s increasing military dominance in the South China Sea, the Philippines initiated an arbitration proceeding to resolve the question of the continental shelf and exclusive economic zone of the Spratly Islands and Scarborough Reef. The claim brought forward by the Philippines pertained to Article 121 of the UNCLOS. China’s “historic rights” claim over the islands and other maritime features in the South China Sea was nullified in the decree given by the Permanent Court of Arbitration (“PCA“). The claim states that China has rights overfishing, navigation, and resource development in a U-shaped territorial line based on being historically dominant and conducting activities in the South China Sea for a longer duration than other countries.

Nature of the Judgement

Even though the UNCLOS does have a clause that talks about compulsory dispute settlement, no uniform interpretation or uniform application of the UNCLOS can be guaranteed during this dispute settlement. UNCLOS does provide that to qualify as an island under Article 121, the territory must be naturally formed and be surrounded by water at high tide. With these qualifications, islands are entitled under UNCLOS to the same maritime zones as other land territories. In addition to being embodied in UNCLOS, this principle is also widely recognised in customary international law and State Practice. Article 121(3) of UNCLOS, however, contains a novel exception not rooted in customary international law. The Tribunal provided an extensive review of Article 121 of the UNCLOS, focusing specifically on the interpretation of Paragraph 3 of Article 121. An integral point considering paragraph 3 of Article 121 had close to no clarification before this judgment.

Paragraph 1 defines the term “island” as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Along with this, paragraph 2 talks about the territorial sea, the contiguous zone, the exclusive economic zone, and the continental shelf, while providing an exception in paragraph 3: “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

It is important to note that the term “rocks”, “human habitation” or “economic life of their own” are not defined in the UNCLOS.

Laws of Interpretation

While interpreting Article 121(3) of the UNCLOS, the Tribunal in the Republic of Philippines v. People’s Republic of China used the literal rule of interpretation. This rule was defined in the Duport Steel v. Sirs case by Lord Diplock. It calls for an unambiguous interpretation of terms mentioned in the statute, leaving no scope for diverse meanings and interpretations. According to the literal rule, the judge or the decision-making authority must not deviate from the plain meaning of the word even if it leads to an outcome that they might consider unjust.

On this basis, this case marks the first time the term “rocks” was deliberated upon by any international forum. The legality of these islands was interpreted to determine whether they had an economic life of their own. The inter-relationship between the terms “islands” and “rocks” was also clarified. The judges of the Tribunal used the Oxford English Dictionary and interpreted that both, a “rock” and an “island”, have a fixed meaning and hence limiting the scope for interpretation.

This interpretation also draws inspiration from the Vienna Convention on Law of Treaties, where Article 31(1), addresses the requirement of using utmost good faith while interpreting a treaty to keep the essence of the treaty alive to achieve its purpose. The Tribunal went ahead to clarify that an island was a naturally occurring rock formation and would not include islands that were composed of sand. While interpreting the term “rocks”, the tribunal held that “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” would classify as under this category. The Tribunal further went on to note that a rock could not be transformed into an island by reclamation of territory or land.

While interpreting the concept of “economic life of its own”, the Tribunal made it clear that the aboriginal nature of the bodies in question must be coupled by the ability to sustain an independent economic activity that must be local and not imported, as mentioned above. The Tribunal further went on to hold that the economic life need not be permanent, but their origin must be domestic and must benefit the local population residing in the territory.

Concluding Thoughts

The current advancement in technology would allow any piece of territory to be transformed into a region fit for human habitation. This concept would frustrate and nullify the provision of limitation put forth by Article 121(3) if it were to be allowed. Hence, while deciding the nature and fate of the Spratly Islands and Scarborough Reef, the Tribunal held, using various treaties and precedents, that they do not qualify to be under Chinese jurisdiction. Since these islands both do not hold any capacity to sustain human habitation of their own and hence would not fall under the nature of the judgment.

This interpretation using the literal rule makes a clear demarcation between the terms “rocks” and “economic life of their own” and eliminates discrepancy, like Japan claiming land from Okinotorishima due to ambiguity in Article 121 (3) of the UNCLOS. It is necessary to provide a clear interpretation to avoid ambiguity and provide a basis for forming strong legal frameworks and to ensure that entities do not misuse legal ambiguities.

Considering China’s refusal to abide by any decree passed relating to the South China Sea, the enforcement of this award would be a difficult task. Though the tribunal has given a justification on the legality of the reefs and islands, there is still not enough clarity on how different stakeholders would interpret and adhere to this judgment. There is also a lack of clarity on how the Tribunal would further tackle a varied set of interpretations of treaties by states. Many countries have supported individual stakeholders in this decision owing to their domestic and foreign interests at stake. Irrespective of the multilateral perspective that this decision provides, it still stands as one of the most comprehensive interpretations of the UNCLOS and hopefully will prove to be a guiding articulation when it comes to the legal question of state sovereignty.

Nandini Shenai is in her third year of the B.B.A LL.B (Hons.) program at the NMIMS School of Law, Mumbai.

Illustration by Greg Groesch/The Washington Times.