TRIBUNAL’S

CONSIDERATIO
N
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INTERPRETATION OF ARTICLE 121 OF THE

CONVENTION
FROM THE TEXT OF Article 121 (3)

▸ The term “rock’ does not require that a feature be composed of rock in
the geologic sense in order to fall within the scope of the provision.

▸ The use of the word “cannot “ indicates a concept of capacity. It is

concerned with whether, objectively, the feature is apt, able to, or lends
itself to human habitation or economic life.

▸ The term “sustain” indicates both time and qualitative elements.

Habitation and economic life must be able to extend over a certain
duration and occur to an adequate standard.
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▸ The term ‘human habitation” implies a non-transient

presence of persons who have chosen to stay and reside on
the feature in a settled manner.

▸ The logical interpretation of the use of the term “or” indicates

that a feature that is able to sustain either human habitation
or an economic life of its own will be entitled to an exclusive
economic zone and continental shelf.
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▸ The term “economic life of their own” refers that a feature

itself must have the ability to support an independent
economic life without relying predominantly on the infusion of
outside resources or serving purely as an object for
extractive activities without involvement of local population.
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▸ FROM THE CONTEXT OF Article 121 (3) and THE OBJECT AND
PURPOSE OF THE CONVENTION
The context of Islands, Rocks and Low-tide elevations
▸ The Tribunal considers that a rock cannot be transformed into a fully
entitled island through land reclamation.
▸ A low-tide elevation or area of seabed cannot be legally transformed
into an island through human efforts.
▸ The status of a feature must be assessed on the basis of its natural
condition.
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▸ If States were allowed by technological advancements a feature’s

capacity to sustain, then every high-tide feature could be
converted into an island generating a 200-mile entitlement.
The link between Article 121 (3) and the purpose of the exclusive
economic zone.
▸ The Tribunal considers that human habitation with which the
drafters of Article 121 (3) were concerned was the habitation by a
portion of the population for whose benefit the exclusive economic
zone was being introduced.
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The History of Article 121 (3)

▸ Article 121 (3) is a provision of limitation.

▸ The definitions in Article 121 (3) were not discussed in isolation, but
frequently in the context of other aspects of the Convention

▸ The drafters accepted that there are diverse high tide features; vast
and tiny; barren and lush; rocky and sandy; isolated and proximate;
densely and sparsely populated or not populated at all. The Tribunal
consider that the travaux make clear that size cannot be dispositive of
a feature’s status as a fully entitled island or rock and is not, on its own
a relevant factor.
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APPLICATION OF ARTICLE 121 (3)

▸ In the Tribunal’s view Scarborough Shoal, Johnson Reef, Cuarteron

Reef, Fiery Cross Reef, Mc Kennan Reef are “rock” for purpose of
Article 121 (3).

▸ With regard to the Spartly Islands as a whole, the Tribunal agreed

with China’s statement that the criteria of human habitation and
economic life may sustain itself through the use of a network of
closely related maritime features. However the Tribunal cannot
agree with China’s statement that the Spratly Islands should be
enclosed within a system of archipelagic or straight baselines. The
use of archipelagic baselines is controlled by the Convention.
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APPLICATION OF ARTICLE 121 TO OTHER HIGH-TIDE

FEATURE IN THE SPARTLY ISLAND
Factual findings concerning high-tide features in the Spratly
islands with regards to the following:

a. The Presence of Potable water

b. Vegetation and Biology

c. Soil and Agricultural Potential

d. Presence of Fishermen

e.Commercial Operation
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▸ The Tribunal concludes that Its Aba, Tithu, West York, Spartly
Island, South-West Cay, and North East Cay are not capable of
sustaining human habitation within the meaning of Article 121 (3).
Less significant hi-tide features in Spartly Island reaches the same
conclusion.
▸ In the Tribunal’s view, all economic activity in the Spartly Islands
has been essentially extractive in nature, therefore without the
presence of a stable local community, necessarily falls short of
constituting the economic life of the feature.
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CONCLUSION

▸ The Tribunal finds with respect to the Philippines’

Submission No. 3 and Submission No. 7 that Scarborough
Shoal, Johnson Reef, Cuarteron Reef and Fiery Cross Reef
contain, within the meaning of Article 21 (1) ,naturally formed
areas of land, surrounded by water, which are above water
at high tide. But under Article 121 (3) of the Convention , it is
rock that cannot sustain human habitation or economic life
their own and shall have no EEZ or continental shelf.
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▸ The Tribunal concludes that Mischief Reef and Second

Thomas Shoal are both low-tide elevations that generate no
maritime zones on its own. It also concludes that none of the
high-tide features in the Spratly Islands are within the
meaning of those terms in Article 121 (3) of the Convention
and accordingly no possible entitlement of China to any
maritime zone in the area and no jurisdictional obstacle to
the Tribunal’s consideration of the Philippines’s Submission
No. 5
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▸ Philippines’ Submission No. 5, Tribunal concludes that both

Mischief Reef and Second Thomas Shoal are located within
the 200 nautical miles of the Philippines’ coast and located in
an area that is not overlapped with features claimed by
China therefore form part of the EEZ and continental shelf of
the Philippines.