Fact-finding On The 'Above Water At High Tide' Of Maritime Features

There is a significant distinction between the status of low tide elevation and island in the law of the sea.Whether a maritime feature is 'above water at high tide'is one basic criterion to distinguish low tide elevation and island according to Article 13 and 121 of UNCLOS.However,owing to the absence of clear and specific unified standard in fact-finding on the 'above water at high tide' and the inconsistency of state practice and judicial practice,there is no generally accepted rule of fact-finding on the 'above water at high tide' of maritime features.The selection of high tide datum and the examination of scientific evidence are two key factors of fact-finding on the 'above water at high tide' of maritime features in territorial and maritime delimitation dispute cases.This article aims to get a preliminary understanding by analyzing judicial precedents.First of all,when choosing a high-tide datum,International Court of Justice(ICJ)and arbitral tribunal took different ways in different cases in the past international cases,but they all had a certain degree of avoidance,which reflects great difficulties in choosing high-tide datum.So,attempting to achieve a specific high-tide datum in different maritime space in many countries is difficult to work.Secondly,ICJ and arbitral tribunal maintain a very cautious attitude towards the examination of scientific evidence,such as expert reports,satellite images,charts,navigation guides and so on.The Court did not give corresponding probative value to these scientific evidences when proving whether a maritime feature is above water at high tide.Authoritative data sources and way of data interpretation have great impact on their probative value and contemporary evidence has a higher probative value.Finally,based on the conclusions above,the author finds that there are some flaws in the arbitral tribunal's award,which concerns the fact-finding on the 'above water at high tide' of five maritime features including Mischief Reef in 'The South China Sea Arbitration'.