By Gilbert Guillaume
Article 121(2) of the United Nations Convention on the Law of the Sea (the Convention) stipulates that, “The territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.” According to the International Court of Justice, this rule has the status of customary law, Territorial and Maritime Dispute (Nicaragua v. Colombia), and gives islands major importance in determining maritime spaces.
It does however have an exception. According to paragraph 3 of the same article, “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” These rocks generate rights only to a territorial sea and a contiguous zone.
This text of critical importance has been widely commented on and was interpreted for the first time in the South China Sea Arbitration award of 12 July 2016 (the Award), which in turn has been the subject of various assessments. Building on this Award, the scope of Article 121(3) needs to be clarified, using the interpretation methods enshrined in the Vienna Convention on the Law of Treaties.
The Award sought first and foremost what should be understood by “rock” for the purposes of the Convention. It noted that the term involved no limitation as to the materials making up the rock, its size, or any other characteristic. As such it gave no specific content to the word “rock” and understood the text as concerning any island, regardless of geology and size.
This interpretation gives rise to a major difficulty: The Convention uses the word “island” in Article 121(1) and (2) and the word “rock” in (3), and on the face of it, it is difficult to see how the same scope can be given to the two words.
The Award assimilated rocks to islands using three arguments. Firstly, it noted that, according to the Oxford English Dictionary (OED), rocks “may consist of aggregates of minerals […] and occasionally also organic matter […]. They vary in hardness, and include soft materials such as clays”. This quotation is accurate but incomplete. While the OED does give that as its second definition of “rocks”, its first definition is that of a “large rugged mass of hard mineral material.” The first definition is equivalent to “roche” in French, the second, to “rocher.” But while the English version thus has a degree of ambiguity, the same does not apply to the French version, which refers not to “roches,” but to “rochers,” meaning, according to the dictionary of the Académie Française, to “craggy masses of hard stone.” The Chinese, Russian and Spanish versions similarly correspond to the terminology in French, and it is regrettable, given the ambiguity of the English text, that the tribunal did not look at the other versions. If it had done so, it would have distinguished between “roches” and “rochers” and given the word “rock” its ordinary meaning: that of a rugged mass of hard mineral material.
In order to justify a different interpretation, the tribunal claims the authority of the ICJ which, in the Territorial and Maritime Dispute (Nicaragua v. Colombia), is claimed to have excluded any geological criterion to declare the coral island a rock within the meaning of Article 121(3). This claim is, however, false. In the case mentioned, the Court did have to decide whether Quitasueño was a low-tide elevation or an island. As such, it recalled that an island was a naturally formed area of land, surrounded by water, which is above water at high tide. It then underlined the fact that the definition of “island” contained no geological component. But at no time did it consider the meaning of the word “rock.”
In order to justify the solution chosen, the arbitral tribunal observed, lastly, that applying a narrow definition of the word “rock” would give rise to an absurd result. It argued that if such an interpretation were accepted, then certain islands made up of sand, mud, stones or coral would produce vast maritime spaces; whereas the same would not apply to islands made up of hard rock. This would not have been the intention of the authors of the Convention.
The travaux préparatoires of Article 121(3) should therefore be considered, in accordance with Article 32 of the Vienna Convention on the Law of Treaties. Yet these travaux préparatoires do not support the interpretation used in the award.
The text of Article 121(3) stems from three proposals made to the Conference. One of them was from Romania. It initially concerned islets and islands of small size, uninhabited and without economic life. Romania later defined an islet as being less than one square kilometre in area. It specified moreover that small islands which were not or could not be inhabited (permanently) or which did not or could not have their own economic life should be treated as islets. Turkey adopted this approach, but made a distinction between islands without economic life and rocks.
–The Daily Mail-Global Times News Exchange Item
