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As a teacher of international law for more years than I care to admit, I have to declare at the start of my comments that I admire the South China Sea Arbitration Award greatly. It presents an interpretation of the provisions of the 1982 UN Convention on the Law of the Sea (UNCLOS) on islands and rocks in a comprehensive, carefully considered and intellectually satisfying way. As my colleagues will doubtless point out, it does present problems relating to current existing state practice, but it does to my mind capture what the UNCLOS III drafters had in mind when the 1982 Convention text was put together.

When the Tribunal issued its July 2016 Award in the Philippines-China arbitration, the United States announced that the decision is an important contribution to the shared goal of a peaceful resolution to disputes in the South China Sea. The United States strongly supports the rule of law and efforts to resolve disputes in the South China Sea peacefully, including through arbitration. As provided in Article 296 of the UN Convention on the Law of the Sea (UNCLOS), the decision is “final and shall be complied with” by both parties to the dispute.

In July 2016, an Arbitral Tribunal constituted pursuant to Annex VII of the Law of the Sea Convention issued an award on the merits in the South China Sea Arbitration between the Philippines and China. Among other issues to be decided was the status of several insular features under the law of the sea regime of islands codified in Article 121 of the UN Law of the Sea Convention (UNCLOS). Article 121, paragraph 1, defines an island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Like all coastal land territory, islands, with one important exception, generate a full suite of maritime zones: territorial sea, contiguous zone, exclusive economic zone, and continental shelf (Article 121(2)). The important exception is found in the third paragraph of Article 121: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

The Tribunal's conclusion that Itu Aba and other features in the South China Sea are rocks that are incapable of generating exclusive economic zones came as a surprise to some scholars and government officials who have never interpreted Article 121(3) of the UN Convention on the Law of the Sea (UNCLOS) in the strict way adopted in this case. In the absence of any previous judicial interpretation of the article, a range of interpretations of Article 121(3) have been seen in the academic literature, and in state practice. Although much of the decision is extremely well argued, I must disagree with the Tribunal's approach to Article 121(3).

In my remarks I would like to draw attention to the role of history in the Tribunal's reasoning concerning the regime of islands, both as regards its approach to historical uses of maritime features and in particular its approach to determining what it was the drafters of the UN Convention on the Law of the Sea (UNCLOS) intended. My contention in these remarks is that the Tribunal took an unashamedly developing-state oriented view in its conception of the object and purpose of the regime of islands, thus foregrounding perspectives that were present at the time of the negotiation of UNCLOS but which are not necessarily given much attention in the contemporary English-language literature. Before turning to this perspective, one must closely scrutinize the Tribunal's reading of UNCLOS Article 121.