Study On The Issue Of Interpretation Of Article 121 Of The United Nations Convention On The Law Of The Sea

Article 121(3)of the United Nations Convention on the Law of the Sea("UNCLOS")is an important article regarding the regime of islands which relates to the distinction between "island" and "rocks".However,due to the ambiguity of the terminologies,the interpretation and application of this article has long been a highly controversial issue in the law of the sea.On the interpretation of this article,the scholars have different viewpoints and the countries also have various positions and state practices.And the international judicial bodies represented by the International Court of Justice have always taken an evasive attitude and never directly touched upon the interpretation of this article.On July 12,2016,the Arbitral Tribunal of the South China Sea Arbitration interpreted and applied this article for the first time in its Award on Merits,triggering extensive discussion and rethinking on this issue in the international law community.In its interpretation of Article 121(3)of the Convention,the Tribunal set a highly strict standard for the "Island" that enjoys the full maritime entitlements,and then decided that all islands in the Nansha Islands were "Rocks" under the Article 121(3)of the Convention.However,after a preliminary examination of the Tribunal's interpretation,the author finds that the interpretation of Article 121(3)of the Convention by the Tribunal goes far beyond the original meaning of the Convention text and violates the fundamental principle of treaty interpretation in the Vienna Convention on the Law of Treaties.And it seems that the Tribunal just simply and biasedly adopted some academic points of view on the interpretation of this article,which is a typical "judicial law-making" act,which is neither legal nor reasonable.In the next,by reviewing the history of Article 121,it can be seen that,as the product of compromise among the negotiating countries,this article actually represents a kind of "deliberate ambiguity" and the countries have never reached an agreement on the exact meaning of it,and the relevant preparatory work of this article also fails to provide effective guidance for its interpretation,all of which further evidence the weakness of the basis of the Tribunal's interpretation.Then by analyzing the related international judicial practices and state practices,we can find that the International Court of Justice as a matter of fact takes a cautious and responsible attitude by avoiding interpreting this article directly.In addition,the fact that many countries have claimed vast maritime entitlements over their remote and uninhabited islands further indicates that this article has played a very limited role in practice,and that to adopt a broad interpretation of this article is to certain extent reasonable.Nevertheless,the Tribunal just ignored these facts and practices and carried out a very strict interpretation of Article 121(3)of the Convention.This is an obvious"law-making" act which not only conflicts with the principle of treaty interpretation but also impairs China's legitimate maritime rights and interests.