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.

In particular, I like the interpretation of the Permanent Court of Arbitration Tribunal of the provisions of Article 121(3), which provides that: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” There has been considerable academic discussion as to whether both these two requirements, linked by the word “or,” need to be satisfied for an insular formation to qualify as an island with full maritime zones. Indeed, the Philippines had argued for a conjunctive interpretation. However, the Tribunal insisted that either of these legs can be satisfied—a disjunctive interpretation—but did observe that “economic activity is carried out by humans and that humans will rarely inhabit areas where no economic activity or livelihood is possible.”Footnote ¹ Furthermore, the Tribunal ruled that the economic activity must not be purely exploitative; the feature must sustain an activity “of its own.”Footnote ²

While this interpretation obviously disadvantages states that currently claim the marine resources of huge maritime zones from uninhabitable features, it does have the result that where a local community is only able to sustain itself by utilizing a range of maritime features, it would not “fail to inhabit a feature on the grounds that its habitation is not sustained by a single feature.” Nor conversely would that group be “disabled from recognizing that such features possess an economic life of their own merely because not all the features are directly inhabited.”Footnote ³ Professor Guilfoyle, below, considers the UNCLOS III travaux préparatoires, but the Tribunal did highlight the purpose that Article 121(3) serves, namely to “disable tiny features from unfairly and inequitably generating enormous entitlement to maritime space that would serve not to benefit local populations, but to award a windfall to the (potentially distant) state to have maintained a claim to such a feature.” So, the interpretation of Article 121(3) should “serve to reinforce, rather than counter” that purpose.Footnote ⁴

This far-seeing interpretation of the entitlements of island communities will be welcomed by many communities particularly in low-lying islands in the Pacific, and elsewhere, threatened by sea level changes. The Intergovernmental Panel on Climate Change (IPCC) in its 2013/14 Fifth Assessment Report (AR5) now predicts up to approximately one meter sea-level rise by 2100, with “a strong regional pattern, with some places experiencing significant deviations of local and regional sea level change from the global mean change.”Footnote ⁵ IPCC estimates are generally regarded to be conservative, and there is a wide range of differences in the results for the upper bounds of projected sea-level rise, identified in assessments using process-based modelling, on the one hand, and those based on semi-empirical models, on the other—with the latter resulting in upper bounds of up to 2.4 m of global mean sea level rise by 2100.

In its Report to the 77th International Law Association (ILA) Conference in Johannesburg in 2016,Footnote ⁶ the ILA Committee on International Law and Sea Level Rise points out that sea level rise increasingly has the potential to inundate, or render uninhabitable, small islands—particularly the smaller outer islands of islands groups—and other geographical features that may have generated their own maritime zones under Article 121, or been used by the coastal state as base points for drawing straight baselines. It may also have major impacts on the capacity of a feature to generate maritime jurisdictional claims. Some low-lying island states, already under pressure, may find their land areas rendered uninhabitable well before they are overrun by the sea. In extreme cases this may even raise questions as to the ability of some island states to maintain their statehood without a habitable land area, and to maintain sovereignty over the territorial sea, and sovereign rights over the resources of the maritime zones appurtenant to those land areas.

There may be some small comfort in the finding of the Tribunal that the status of a feature is to be determined by its “natural capacity.”Footnote ⁷ Hence, enhancing an existing island to maintain its habitability is quite legitimate—although probably prohibitively expensive. Such an enhancement would of course need to be carried out in an environmentally acceptable way respecting the obligations to “protect and preserve the marine environment” in Article 192Footnote ⁸ and “rare and fragile ecosystems” as well as the “habitats of depleted, threatened or endangered species,” including giant clams and as well as species of turtles, corals, and fish, in UNCLOS Article 194(5). This can really only be done, said the Tribunal in a nod to the jurisprudence of the International Court of Justice, after an appropriate Environmental Impact Assessment as required by Article 206 of the 1982 Convention.Footnote ⁹

What is not possible, the Tribunal ruled, is to transform rocks into islands by the enhancement of those natural features—as the Chinese have been doing in the South China Sea.Footnote ¹⁰ Or to destroy valuable coral reefs and other fragile ecosystems in the process—as China was also found to have done.Footnote ¹¹

Conscious of the potential risk of losing islands and possibly maritime space through sea level rise, the Pacific Island states have been involved with extensive legal efforts to clarify and perhaps fix maritime boundaries and limits in the Pacific region in advance of the impacts of sea level rise.

In particular the Pacific Boundaries Project, a partnership involving the South Pacific Community (SPC) and Australia, with the support of other organizations, has made substantial progress in assisting the Pacific Island states in clarifying the extent of their maritime jurisdictions. The project was initially concerned with assisting the Pacific Island states in the preparation of their extended continental shelf submissions for the Commission on the Limits of the Continental Shelf, something which necessarily involved the definition of their baselines. Its scope has however been expanded to include the updating of their maritime zones legislation and the delineation of the outer limits of their maritime zones. Additionally, the project has played a significant role in terms of assisting these states in preparing and offering a forum for negotiations regarding the delimitation of maritime boundaries between them, which has led to a doubling in maritime boundary agreements in the region in recent years, so that by 2015 nearly two-thirds of the possible boundaries have been settled.

This work has clearly sensitized Pacific leaders to the risks which sea level rise poses. On July 16, 2015, seven leaders of Polynesian states and territories signed the Taputapuātea Declaration on Climate Change. The signatories … “acknowledge, under the United Nations Convention on the Law of the Sea (UNCLOS), the importance of the Exclusive Economic Zones of the Polynesian Island states and Territories, whose area is calculated according to emerged lands and permanently establish the baselines in accordance with the UNCLOS, without taking into account sea level rise [sic].”

An example of the way this work may begin to advance state practice in the region can be found in the 2016 legislation of the Republic of the Marshall Islands. Its 2016 Maritime Zones Declaration Act repealed existing maritime zone legislation and declared anew all its maritime zones. Detailed regulations ran to more than 450 pages and include long lists of coordinates, plus supporting maps. Ostensibly designed to clarify the state's maritime zones it actually appears to anticipate that, once established, these zones will not change in the future.Footnote ¹²

It is now clear that anthropogenic impacts on the climate have and will incrementally increase the risks of sea level changes over the next decades and longer; indeed, these impacts have prompted geologists to assess whether we have already entered a new geological epoch—the Anthropocene. In this new epoch, when some of the established principles of the law of the sea may need to be reexamined, the status of islands, rocks, and other vulnerable marine features that may or may not generate maritime claims, assumes even greater significance. This Award offers an interpretation of the provisions of Article 121 of UNCLOS that is clearly not free of controversy but to my mind it provides a legitimate, farsighted, and logically coherent approach to the problems that seem likely to arrive more often in the future in many corners of the world.