THE TRIBUNAL’S CONSIDERATION

IN THE SOUTH CHINA SEA ARBITRATION

In order to make decisions with respect to the Philippines’ Submissions No. 3, 6, and 7, the Tribunal must interpret and
apply Article 121 of the Convention.

Philippine Submissions:
 No. 3. Philippines' position that Scarborough Shoal is a rock under Article 121(3).
 No. 6. Whether Gaven Reef and McKennan Reef are low-tide elevations "that do not generate any maritime
entitlements of their own".
 No. 7. Whether Johnson Reef, Cuarteron Reef, and Fiery Cross Reef do or do not generate an entitlement to an
exclusive economic zone or continental shelf.

Article 121 of the Convention

Regime of islands

1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

2. Except as provided for in paragraph 3, 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.

3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone
or continental shelf.

A. INTERPRETATION OF ARTICLE 121 OF THE CONVENTION

In approaching the interpretation of Article 121, the Tribunal separately reviewed the text of Article 121 (3). “Rocks
which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental
shelf.”

1. The text of Article 121 (3)

a. “Rocks” – Within Article 121, rocks are category of Island, which for the purposes of Article 121 (3) will
not necessarily be composed of rock.

b. “cannot” – The use of the word “cannot” in Article 121(3) indicates a concept of capacity. It is not
concerned with whether the feature actually does sustain human habitation or an economic life but whether it lends
itself to human habitation or economic life.
In other words, the fact that the feature is currently not inhabited does not prove that it is uninhabitable and the
fact that it has no economic life, does not prove that it cannot sustain economic life. Historical evidence of human
habitation and economic life in the past may be relevant for establishing a feature’s capacity.

c. “sustain” –generally means to “support, maintain, uphold”. The tribunal considers that this ordinary meaning
of “sustain” has three components, namely: 1. The concept of the support and provision of essentials; 2. Temporal
Concept: the support and provision must be over a period of time and not short-lived; 3. Qualitative Concept, entailing
at least a minimal “proper standard.”

d. “human habitation” – defined as action of dwelling in or inhabiting as a place of residence; occupancy by

inhabitants” or “a settlement”. In the tribunal’s view, the term habitation implies:

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 1. a non-transient presence of persons who have chosen to stay and reside on the feature in a settled
manner; and

2. the habitation of the feature by a group or community of persons.

e. “or” – indicates that a feature that is able to sustain either human habitation or economic life of its own, will
be entitled to an exclusive economic zone and continental shelf.

f. “economic life of their own” - In the Tribunal’s view, for economic activity to constitute the economic life of
a feature, the resources around which the economic activity revolves, must be local, not imported, as must be the
benefit of such activity. It therefore follows that economic activity that can be carried on only through the continued
injection of external resurces is not within the meaning of “economic life of their own

2. The Context of Article 121 (3) and the Object and Purpose of the Convention
a. The Context of Islands, Rocks, and Low-Tide Elevations
Article 121 applies to a “naturally formed area of land”. This means that the status of a feature must be
assessed on the basis of its natural condition.

b. The link between Article 121 (3) and the Purpose of Exclusive Economic Zone
As discussed by the tribunal, the purpose of the exclusive economic zone was to extend the jurisdiction of
States over waters adjacent to their coast and to preserve the resources of those waters for the benefit of the population
of the coastal State. As a counterpoint to the expanded jurisdiction of the exclusive economic zone, Article 121 (3)
serves to prevent such expansion from going too far.

3. The Travaux Preparatoires of Article 121 (3)

The tribunal considers other circumstances that led to the adoption of Article 121 (3)

a. The History of Article 121 (3)

 The Imperial Conference of 1923
- Introduced the early definition of “island”
- The word islands covers all portions of territory permanently above water in normal circumstances and
“capable of use or habitation.”
 The 1930 League of Nations Hague Codification Conference
- The United Kingdom sought to indroduce similar criteria for islands when it proposed to limit the category
of features entitled to a territorial sea to pieces of “territory surrounded by water and in normal
circumstances permanently above high water. It does not include piece of territory not capable of
occupation and use”
 The 1956 Articles Concerning the Law of the Sea
- The International Law Commission (ILC) adopted the similar definition which provide that “every island
has its own territorial sea” and defined an island as “an area of land surrounded by water, which in normal
circumstances is permanently above high water mark.”
 The 1958 Convention on the Territorial Sea and the Contiguous Zone
- The above-mentioned ILC’s text was modified and included in Article 10 of the said 1958 Convention. It
recognized a territorial sea from any island, defined as “a naturally formed area of land, surrounded
by water, which is above water at high-tides.”
- Here, in describing islands as “naturally formed”, the drafters clearly excluded the possibility of States
obtaining a territorial sea through creation of artificial islands.
 The 3rd UN Conference in Caracas in 1974 (Second Session)
- This is where the most extensive negotiations over the provision that became Article 121 (3) took place.

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 - The regime of islands and the need for restriction on the features that would generate an exclusive
economic zone was linked with the development and common heritage of mankind.
 rd
The 3 UN Conference in Geneva in Geneva in 1975 (Third Session)
- “Informal Single Negotiating Text” was prepared. It presented the exception for “rocks which cannot
sustain human habitation or economic life of their own”
 The 3rd UN Conference in 1982 (Final Session)
- Proposals to delete paragraph 3 were introduced and rejected.
- In defense, it was emphasized that without paragraph 3, “tiny and barren islands, looked upon in the past
as mere obstacles to navigation, would miraculously become the golden keys to vast maritime zones.”

B. APPLICATION OF ARTICLE 121 (3) TO SCARBOROUGH SHOAL, JOHNSON REEF, CUARTERON REEF,
FIERY CROSS REEF, GAVEN REEF (NORTH), AND MCKENNAN REEF.

1. Scarborough Shoal
- For the purposes of Article 121 (3), the Scarborough Shoal is a rock.
- The protrusions above high-tide at Scarborough Shoal are minuscule and obviously could not sustain
human habitation in their naturally formed state.
- Scarborough Shoal could not independently sustain an economic life of its own.
2. Johnson Reef
- Also a rock, for purposes of Article 121 (3)
- It is a minuscule, barren feature obviously incapable, in its natural condition, of sustaining human
habitation or an economic life of its own.
- While China has constructed an installation and maintains an official presence on Johnson Reef, this is
only possible through construction of the reef platform. This cannot elevate its status from rock to
fully entitled island.
- China’s presence is necessarily dependent on outside supplies.
3. Cuarteron Reef
- A rock and is accordingly a high-tide feature
- Minuscule and barren and obviously incapable, in its natural condition, of sustaining human habitation
or an economic life of its own.
- China has constructed an installation and engaged in reclamation work at Cuarteron Reef through
dredging.
- China’s presence is dependent on outside supplies, and there is no evidence of any human activity in
the feature prior to China’s presence in 1988.
- China’s construction on Cuarteron Reef, no matter how extensive, cannot elevate its status from rock
to fully entitled island.
4. Fiery Cross Reef
- A rock and is accordingly a high-tide feature.
- Minuscule and barren and obviously incapable, in its natural condition, of sustaining human habitation
or an economic life of its own.
- China has constructed an installation and engaged in reclamation work at Fiery Cross Reef through
dredging.
- China’s presence is dependent on outside supplies, and there is no evidence of any human activity in
the feature prior to China’s presence in 1988.
- China’s construction on Fiery Cross Reef, no matter how extensive, cannot elevate its status from rock
to fully entitled island.
5. Gaven Reef (North)
- A rock and is accordingly a high-tide feature

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 - China has constructed an installation and engaged in reclamation work at Gaven Reef (North) through
dredging.
- China’s presence is dependent on outside supplies, and there is no evidence of any human activity in
the feature prior to China’s presence in 1988.
- China’s construction on Gaven Reef (North), no matter how extensive, cannot elevate its status from
rock to fully entitled island.
6. McKennan Reef
- A rock and is accordingly a high-tide feature
- Incapable, in its natural condition, of sustaining human habitation or an economic life of its own.
- No evidence of human activity nor has any State installed a human presence there.

C. APPLICATION OF ARTICLE 121 TO THE SPRATLY ISLANDS AS A WHOLE

The Tribunal takes note of China’s statement that “China has, based on the Nansha Islands, as a whole, territorial sea,
exclusive economic zone and continental shelf.” This statement can be understood in two ways:
1. China considers that the criteria of human habitation and economic life must be assessed while bearing in mind that a
population may sustain itself through the use of a network of close related maritime features. The tribunal agreed to this.
2. China’s statement could also be understood as an assertion that the Spratly Islands should be enclosed within a
system of archipelagic or straight baselines, surrounding the high-tide features of the group, and accorded an entitlement to
maritime zones as a single unit.
- The Tribunal did not agree to this because the use of archipelagic baselines is strictly controlled by the
Convention where Article 47(1) limits their use to “archipelagic states”
- Archipelagic States- States constituted wholly by one or more archipelagos and may include other islands
(Article 46).
- Philippines is an archipelagic state, China is not.

D. APPLICATION OF ARTICLE 121 TO OTHER HIGH-TIDE FEATURES IN THE SPRATLY ISLANDS

1. Factual Findings concerning High-Tide Features in the Spratly Islands

a. The Presence of Potable Fresh Water

Historically, there is a presence of small freshwater lenses under most of the high-tide features in the
Spratlys because there are consistent reports of small wells loated particularly on Itu Aba, Thitu, and North-
East Cay. The quality of this water may not match the standards of modern drinking. But the tribunal notes that
the freshwater resources of these features evidently have supported small number of people in the past.

b. Vegetation and Biology

Records likewise indicate that the larger features in the Spratly Islands have historically been
vegetated. This vegetation appears to have increased with Japanese commercial interests having made effort to
introduce fruit trees, particularly on Itu Aba. By 1933, Itu Aba is described as having a “dense forest of
papaya.” There were also palm fields, pineapple fields and sugar cane fields. The tribunal considers the record
to indicate that Itu Aba and Thitu have been most heavily forested features in their natural condition.
Moreover, Itu Aba appears to have been amenable to the introduction and cultivation of papaya and banana
trees, even if they are not naturally occurring.

c. Presence of Fisherman
Based on the records, the tribunal concludes that the Spratly lslands were historically used by small
groups of fishermen and that some of these individuals were present in the Spratly for a long period of time,
with an established network of trade and intermittent supply.

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 d. Commercial Operations
There are evidence of Japanese commercial and industrial activities on Itu Aba and South-West Cay.
HMS Iroquois’ 1926 report confirms the presence of guano mining. Although the report described the facility
as inactive, a British account from the following year noted the presence of Japanese ship lying close to the
pier. The Japanese said that from 3000 to 5000 tons of guano were exported annually. A similar mining
operation was established on Itu Aba in 1921. However in 1933, these mining operations has apparently
ceased.

2. The Application of Article 121 and the Tribunal’s Conclusions on the Status of Features

On the basis of the evidence on records, it appears that the principal high-tide features in the Spratly Islands
are capable of enabling the survival of small groups of people; 1. There is historical evidence of potable water; 2. There
is also naturally occurring vegetation, capable of providing shelter and the possibility of at least limited agriculture to
supplement the food resources of the surrounding waters; 3. Small numbers of fisherman have historically been present
and appear to have survived principally on the basis of the resources at hand; 4. Some features in the Spratly Islands
were the site of Japanese mining and fishing activities in 1920s and 1930s. But the question is whether any of this
activity constitutes “human habitation” or an “economic life of its own” for the purposes of Article 121 (3)

a. Historical Human Habitation of the Features of the Spratly Islands

The tribunal considers human habitation to entail the non-transient inhabitation of a feature by a stable
community of people for whom the feature constitutes a home and on which they can remain.

The tribunal concluded that the criterion of human habitation is not met by the temporary inhabitation of the
Spratly Islands by the fishermen, even for extended periods. They very fact that fishermen are consistently recorded as
being “from Hainan” or elsewhere is evidence that they do not represent the natural population of the Spratlys. The
record indicates a pattern of temporary residence on the features, with the fishermen ultimately returning to the
mainland. The same holds true with respect to the Japanese commercial activities on Itu Aba and South-West Cay
because the labourers brought to the Spratlys to mine guano is inherently transient in nature.

b. Historical Economic Life of Their Own of the Features of the Spratly Islands
The tribunal considers that to constitute economic life of the feature, economic activity must be oriented
around the feature itself and not be focused solely on the surrounding territorial sea or entirely dependent on external
resources. Applying this standard, the history of extractive economic activity does not constitute evidence of
“economic life of their own”. Thus, the tribunal concluded that the features on Spratly Islands are not capable of
sustaining economic life of their own within the meaning of Article 121 (3)

E. CONCLUSION

Based on the considerations outlined above, the Tribunals finds, with respect to the Philippines Submissions No. 3, 6,
and 7 that Scarborough Shoal, Gaven Reef, Mackennan Reef, Johnson Reef, Cuarteron Reef, and Fiery Cross Reef, contain
naturally formed areas of land, surrounded by water, which are above water at high-tide, within the meaning of Article 121 (1)
of the Convention.

However, for the purposes of Article 121(3) of the Convention, these features are rocks that cannot sustain human
habitation or economic life of their own and accordingly, shall have no exclusive economic zone or continental shelf.

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