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).

Of course, it must be remembered that, first, the Tribunal did not have the advantage of receiving formal submissions from China due to that country's decision not to appear. The Tribunal was justified in proceeding despite China's failure to appear, but was not in receipt of a fully argued case from China's perspective. Second, the conclusion that none of the disputed features were capable of generating an exclusive economic zone (EEZ) or continental shelf allowed the Tribunal to reach a tidy conclusion that both retained its jurisdiction over the dispute and also, if implemented, would greatly simplify the issues in the South China Sea.

Nevertheless, there are some aspects of the decision that reveal flaws in the reasoning. In particular, the absence of any survey of state practice around Article 121(3) is problematic. The Tribunal considered that there was no consistent state practice in the application of Article 121(3) that would reach the level of an agreement of the parties of UNCLOS regarding its interpretation as set out in Article 31(3) of the Vienna Convention on the Law of Treaties.Footnote ¹ This is undoubtedly correct given the number of disputes around the world as to the application of Article 121(3). However, there are also a number of instances where a claim to an EEZ or continental shelf has been made from a small- or medium-sized feature that would, prima facie, fail to meet the test established by the Tribunal, and yet no protests by other states have been received. These include claims by the United States in respect of Johnson Atoll, Jarvis Island, Palmyra Atoll, and Kingman Reef; France in respect of Clipperton Island and Matthew Island; Brazil in respect of St. Peter and Paul rocks; Australia in respect of the sub-Antarctic Heard Island and McDonald Islands; and New Zealand in respect of sub-Antarctic islands including Auckland, Campbell, and Bounty Islands.

Many of these features are small and lack water or vegetation. In some cases, these claims have stood for forty years or more, during which time the coastal states have legislated, and often enforced, regulations in relation to the exploitation of the resources of the zones, without protest from other states. If the primary interest behind Article 121(3) was focused on ensuring the maximization of the commons areas and limiting excessive claims, as proposed by the Tribunal, then one would have expected at least some protests by other states against these claims.

The existence of these uncontested claims undermines the Tribunal's interpretation of the travaux préparatoires. Some have argued that it is impossible to determine from the travaux any particular agreement about how Article 121(3) should be applied. Therefore, the practice of states following the conclusion of UNCLOS can be used to determine, if not what the proper interpretation is, then what it is not. And an examination of the uncontested claims indicates that only the very smallest and most isolated features would fall into Article 121(3).

In the face of such inconsistencies, how is the Tribunal to interpret Article 121(3)? Rather than interpreting it in such a way as to invalidate forty years of state practice, the Tribunal could have used this practice as evidence that the international community has interpreted Article 121(3) as limited to the smallest features. Most disputes about the status of features are motivated primarily by a desire to maximize coastal state jurisdiction. In fact, one of the reasons that a court has never interpreted Article 121(3) before this case, is that the issue primarily arose in the context of delimitation disputes, and courts have been able to deal with the issues without addressing the article's interpretation. Where there is no delimitation or sovereignty dispute, states have been tolerant of claims from smaller features.

Apart from the failure to consider state practice, some of the Tribunal's logic seems open to challenge. One example is the Tribunal's suggestion that the capacity for human habitation depended on the ability of the island to support a human community without the external supply of provisions. Although the Tribunal acknowledged that small island states might be able to argue that a group of interconnected islands could support a community as a whole, it appeared to ignore the nature of human economic activity from the time that sea travel became regularized. It has not been uncommon across the centuries for small communities to form in a place where a resource or commodity found or grown locally can be traded to increase wealth. If trade routes are dependable, this allows human communities to be established in places that would not otherwise exist. The reliance on external supply for some (or even most) items does not prevent that human community from identifying with that location and thriving.

It is likely that the concern that the Tribunal was addressing was the idea that very tiny features could be completely provisioned from outside for the purposes of meeting the Article 121(3) criteria. However, it was not necessary to rule out external supply for all features—rather the point was made that a community established for the purpose of meeting Article 121(3) would not in itself meet the test,Footnote ² which is a far more reasonable approach. This conclusion would exclude the situations it was really concerned with.

Conceptually, the requirement that a population associate with the feature rather than a distant place also ignores the idea that humans can make their life or livelihoods in a distant place but remain connected to a larger entity. Similarly, people can remain emotionally connected to a former home whilst living in another place.

In a similar vein, the ruling out of resources as being sufficient to establish the economic life of the feature is also extremely narrow and ignores the fact that human economic activity has traditionally been based on the exploitation of resources. It seems rather surprising that extended periods of occupation of Itu Aba for the purposes of extracting resources could not create an economic life of its own.

The Tribunal quoted a comment from the Danish representative to the Third UN Conference, who rejected the idea that “tiny and barren islands, looked upon in the past as mere obstacles to navigation” should benefit from extensive maritime zones.Footnote ³ However, the final interpretation of Article 121(3) ventured a long way from “mere obstacles to navigation” and certainly does not reflect the range of views held by the states that negotiated the Convention.

Should states with uncontested claims expect a raft of legal challenges? States with claims based on small features have taken a number of formal steps including depositing charts showing the outer limits of their maritime zones with the United Nations pursuant to Article 75(2); exercising control over activities targeting resources in the EEZ and on the continental shelf; entering into delimitation or fisheries treaties with other states; and in some cases pursuing claims to the continental shelf beyond two hundred nautical miles with the Commission on the Limits of the Continental Shelf (CLCS). In the latter case, where the coastal state establishes its outer limits in accordance with the recommendations of the CLCS, they are final and binding.Footnote ⁴ In the Bay of Bengal case, the International Tribunal for the Law of the Sea found that the outer limits of the shelf were opposable to other states once the process in Article 76(8) was complete.Footnote ⁵ Of course, if other states contest the validity of the coastal state claims to the extended shelf, the CLCS will not consider the recommendation. For example, the Commission has not yet considered Japan's submissions in respect of Okinotorishima on the basis that both China and Korea have challenged the legal basis of the claim according to Article 121(3).Footnote ⁶ Absent such protests, it would be difficult to challenge the status of even small features after the outer limits have been set under Article 76(8).

Provided that the international community is aware of a coastal state's claims in respect of a feature, the coastal state has exercised jurisdiction over the EEZ or continental shelf, and no state has challenged the legality of those claims, there is a good argument to say that those states have acquiesced in the coastal state's interpretation of Article 121(3) as applied to that feature.