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.Footnote ¹ 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.

Article 121(1) notes that an island is “a naturally formed area of land, surrounded by water, which is above water at high tide.” (Naturally formed is obviously important: if islands could be created or legally enlarged through land reclamation, perverse incentives would be created.) For the Tribunal, the “critical” element is paragraph (3) which provides:Footnote ² “[r]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

Herein lies the legal significance of categorizing a “naturally formed area of land … above water at high tide”: if it is a rock, it generates a modest territorial sea and contiguous zone; if it is an island, it enjoys a potentially vast resource jurisdiction in the form of the exclusive economic zone (EEZ) and continental shelf regime. The Tribunal finely parsed the meaning to be given to: (1) “rocks,” (2) “cannot,” (3) “sustain,” (4) “human habitation,” (5) “or,” and (6) “economic life of their own.”

My focus shall be less on “rocks” than the other elements. The Tribunal indicated the use of cannot connotes the maritime feature's capacity to sustain human habitation or economic life in its natural state. Here history has its role:

The Tribunal held sustain had three elements: the provision of essentials, and the ability to do so both over time and to a minimal “proper standard.”Footnote ⁴ Thus, in context, an island must be able to sustain either a human population over time or non-extractive economic activity.

The Tribunal scrutinized the logic and grammar of the use of “or” before coming to the intuitive conclusion that an island may generate both an exclusive economic zone (EEZ) and a continental shelf so long as it is capable of sustaining either human habitation or an economic life of its own. However, it swiftly added that the “two concepts are … linked” as “economic activity is carried out by humans” who rarely live “where no economic activity or livelihood is possible.” Nonetheless, the drafting covers “islands” which may sustain habitation but not economic activity or vice versa; which “may particularly be the case where multiple islands are used in concert to sustain a traditional way of life.” The Tribunal thus flagged early the idea of a population engaged in a traditional lifestyle or livelihood sustained by groups of islands. It thus cautioned against overly strict readings of Article 121 which could “deprive … populations … of the resources on which they have traditionally depended.”Footnote ⁵

As regards the final element, “an economic life of their own,” the Tribunal emphasized:

The next step in the Tribunal's logic is dense. What makes for such sustainable economic activity? It would be circular to ask if a (hypothetical) EEZ could sustain an independent economic life; such a zone follows from but cannot precede the legal classification of a feature as an island. However, it is not absurd to ask this question of a territorial sea (which may inhere to a mere “rock”) though one must note Article 121(3) “requires a link between the economic life and the feature itself, rather than merely [occurring in] adjacent waters.” Thus

Again, the examples given here, a local population contrasted with distant-water fishermen, are telling.

Beyond such conclusions, the Tribunal found it necessary to turn to the object and purpose of the regime of islands, and their relation to the EEZ, in order to interpret Article 121. The sources it draws upon are significant. In relation to Latin American practice, it refers to the 1952 Santiago Declaration and the 1970 Montevideo and Lima declarations; and in African practice, it notes the 1972 African States Regional Seminar on the Law of the Sea and the 1973 Addis Ababa declaration of the Organization of African Unity. These sources evince a common concern with the ability of littoral populations to benefit from the maritime resources in adjacent waters, and later from the new EEZ. The Tribunal noted that such “objectives are also apparent in the positions taken by coastal developing States throughout the UNCLOS negotiations” and were shared by “certain [fisheries-dependent] developed States.” The Tribunal also relied upon the plainly New International Economic Order-inspired language in the Convention's preamble stating that UNCLOS aims to

The historical conclusion presented here is straightforward: the purpose of the EEZ was primarily to benefit developing states, by giving their populations greater control over the marine resources in adjacent waters. Importantly the Tribunal characterizes the qualifications built into Article 121(3) as preventing the newly created EEZ regime “from going too far”; Article 121

A distinction is set up here by the Tribunal between deserving local populations (of developing states) which should benefit from an EEZ and undeserving distant seafaring states (great powers and former colonizers) who should not be allocated “windfalls.” Thus, the Tribunal could quote Ambassador Koh on the risks of applying a uniform EEZ entitlement to all maritime features: “such an approach would give inequitable benefits to coastal States with small or uninhabited islands scattered over a wide expanse of the ocean.”Footnote ¹⁰ Similar remarks made by Latin American delegations during the negotiations are also cited. The conclusion follows that:

Again, the choice of the emotional term “home” is highly significant.

Though the Tribunal never seeks to turn the critical “or” into an “and” (thus vacating the “economic life” test), it does seemingly narrow its possible interpretations. It does this in several steps. First, through holding that “an economic life of its own” excludes activity which is merely extractive and lacking the involvement of a local population. Second, it notes that the easiest evidence of economic life will usually be stable human habitation. Third, it notes the possibilities of a community that is sustained by a collection of maritime features even if not all are continually inhabited. This ties back to the Tribunal's earlier discussion of traditional livelihoods.

The general words of Article 121 thus become quite particular. The provision is construed as being intended to benefit certain populations, largely in developing countries though with some concession to fisheries-dependent developed states. If EEZs around islands are to generate “windfalls,” they go to the deserving: paradigmatically, stable preexisting communities and especially those practicing traditional lifestyles. Implicitly and explicitly excluded are distant coastal states maintaining claims to (colonial) uninhabited maritime possessions. The reading is unapologetically one which rehabilitates the positions taken by developing states in UNCLOS negotiations and which sees those positions as central to understanding any collective intention embodied in the Convention.