The Research On The Interpretation Of Regime Of Islands Of United Nations Convention On The Law Of The Sea

On 12 July 2016,the temporary arbitration tribunal in Hague(hereinafter “the Tribunal”)regarded all maritime features in the South China Sea as rocks based on its interpretation of Article 121,regime of islands(hereinafter “regime of islands”),of the United Nations Convention on the Law of the Sea(hereinafter “UNCLOS”).This is the first international judicial precedent that makes a direct and specific interpretation of regime of islands since UNCLOS has come into effect,which has provoked great repercussion in the international community.The interpretation of regime of islands is a long-standing problem.Many famous scholars such as Victor Prescott,J.I.Charney,E.D.Brown had discussed this question before.Since Okinotori island was entitled to the legal status of island by Japan without any legal basis,regime of islands has attracted the attention of Chinese scholars.After the South China Sea Arbitration,the interpretation of regime of islands has become the hot topic in China.Chinese scholars mainly focus on Session 3 of regime of islands,the main questions include: firstly,what is the difference between the “rocks” in Session 3 and the “island” in Session 1;secondly,“can not sustain”means the capacity of sustaining,but how to identify such capacity;thirdly,what are the requirements of “human habitation”;fourthly,what is the scope of “economic life”,whether “economic life of its own” means the maritime feature cannot obtain any support from outside;fifthly,whether the two conditions-“sustain human habitation” and “sustain economic life” should be satisfied simultaneously.Except Session 3,there are several questions about Session 1 of regime of islands that worth being discussed: firstly,whether there is the geographic materialrequirement of the construction of island;secondly,whether there is the size requirement of island;thirdly,how to identify “naturally formed”.The interpretation of regime of islands has a close relationships with nations' maritime rights and interests.Although many international judicial precedents avoided answering this question,scholars from different countries have made a number of interpretations at different standpoints.This dissertation synthesizes the history of regime of islands,precedents and scholars' points and analyzes regime of islands in detail based on Vienna Convention on the Law of Treaties.The author has put forward her own viewpoint to make an effort to solve the problem.The dissertation is divided into four chapters,the main contents are as follow:The author explains the necessity of interpreting regime of islands and demonstrates the significance and value of writing this article in Chapter 1.The difference between “island” and “rock” is not only about their names,but the legal status of the maritime features.The exclusive economic zone and the continental shelf of an island are determined in accordance with the provision of UNCLOS applicable to other land territory.There are four main reasons for this dissertation to discuss regime of islands: firstly,in South China Sea Arbitration,the Tribunal regarded all the maritime features,including Taiping Island,in South China Sea as “rocks”,which caused the sea areas under the China's jurisdiction reducing seriously;secondly,at present,there are potential disputes in East China Sea and South China Sea,all of which refer to the problem of the nature of the maritime features.Therefore,we have to get ready for it;thirdly,although Chinese government denied the effect of the award of South China Sea Arbitration,the arbitration has become a precedent that can a reference for states or international judicial organizations.In June 2017,the international tribunal of PCA that offers case registration services had used it for reference in arbitration between the Republic of Croatia and the Republic of Slovenia;fourthly,as an important part of international maritime regimes,regime of island is not perfect.It is necessary to further study and interpret it to promote the improvement and development of the international legal system of the sea.Although academic interpretation has no legal binding,it can improve the development ofjudiciary because there is mutual influence relationship between academy and judiciary.The author discusses about the predicament of interpreting regime of islands in Chapter 2,which demonstrates that there is a huge interpretation space of regime of islands.There is quite a long history of the development of regime of islands and it was confirmed in the compromise of state parties.To balance the interests of different states,an ambiguous expression was adopted,which leaves a huge interpretation space of the article.The points of scholars can be divided into two schools: “strict interpretation” school and “broad interpretation” school.They debated with each other on the basis of legislator's intention without considering legislative intention,resulting that their explanations did not meet the intention as well as the actual demand.As for international judicial precedents,South China Sea Arbitration is the only one that makes a direct and specific interpretation of regime of islands,but its process of argumentation is with the tendency of judge-made law.Other precedents avoided to solve this problem.From the perspective of states' practices,the situation is chaotic and the application of regime of islands has not formed into international custom.The author thinks that the reason why all the existing explanations have some predicaments is that they do not follow the correct interpretation rules.Article 31 and32 of the Vienna Convention on the Law of Treaties are the customary international law of treaty interpretation.It is generally admitted that the articles define three rules of interpretation: literal interpretation,objective interpretation and intentional interpretation that must be followed in treaty interpretation.In author's view,it is appropriate to use the method of objective interpretation and combine the contemporary era to interpret regime of islands for its position as law-making treaty.The author discusses about the constitute of island in Chapter 3.It is widely accepted that islands provided in regime of island include rocks but exclude archipelagos,low-tide elevations and those maritime features geographical position is constantly changing.The fundamental purpose of introducing the concept of rocks is balance.Island is an area of land.Although there is a tendency in judicial precedents to require a certain size of island,the provision of regime of island does not constituteany geographic material or size requirements.On the natural attributes of land areas,the academic views can be divided into two schools-“two-requirement theory” and“single-requirement theory”.The author agree to “two-requirement theory” that both the formation materials and processes of area of land must have natural properties,but whether artificial input should be completely excluded requires a dialectical judgment.In addition,the area of land must be permanently surrounded by water and above the water.The author discusses about the constitute of rocks in Chapter 4.Scholars' interpretation and the Tribunal's opinions in the South China Sea Arbitration all agree that “cannot sustain” emphasizes the capability of maintenance rather than the status quo.However,the Tribunal has proposed many “appropriate standards” for“maintenance”.For “human habitation”,scholars of “strict interpretation” school put forward requirements of the nature of the residents.The Tribunal put forward the requirements on the population quantity,residence time and residence condition.The author believes that the above requirements are not legitimate and reasonable.Firstly,the treaty itself does not put forward any requirement.Secondly,it is difficult to formulate unified standards for these requirements,and the subjective discretion of the applicators is too large.“Economic life of its own” refers to whether the maritime feature can obtain outer supports.The opinions of scholars of “strict interpretation”school and “broad interpretation” school are totally opposite.The Tribunal held that“economic life of its own” means the exploitation of its own resources with the participation of the local residents and such resources must be used for the economic life of its own.The author agrees that economic life cannot be completely maintained by external inputs,but it does not require marine features to reject all material inputs and be completely self-sufficient.Based on the integrity of the provision,the two requirements of “cannot sustain” must be met simultaneously.