The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices

The author critiques the 2016 Arbitral Tribunal's interpretation of Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS), which determined that high-tide features in the Spratly Islands are 'rocks' incapable of sustaining human habitation or economic life and thus cannot generate an Exclusive Economic Zone (EEZ) or continental shelf. The author contends that the Tribunal overlooked significant State practice where countries like Australia, France, Japan, New Zealand, and the United States claim 200-nm EEZs for similarly remote, uninhabited features. The paper suggests that if the Tribunal had comprehensively examined these practices and bilateral agreements, it might have reached a different conclusion. Furthermore, it highlights a 'double standard' where these five nations urge China and the Philippines to abide by the Award while continuing their own inconsistent claims.

• The July 2016 Arbitral Tribunal ruled that no high-tide features in the Spratly Islands can sustain human habitation or an economic life of their own, classifying them as 'rocks' under Article 121(3) of UNCLOS, meaning they generate no EEZ or continental shelf.
• The Tribunal's interpretation of Article 121(3) established that a feature's status is based on its natural capacity, excluding external modifications, and that 'human habitation' requires a stable community for whom the feature is a home.
• Australia claims a 200-nm EEZ and continental shelf for Heard Island and McDonald Islands in the Southern Ocean despite a lack of permanent human habitation or indigenous economic activity.
• France maintains a 200-nm EEZ for the uninhabited Clipperton Island in the Eastern Pacific, a claim that has been protested by Mexico.
• Japan claims an EEZ and continental shelf for Oki-no-tori-shima, which the author describes as consisting of two eroding protrusions that meet the description of an uninhabited rock.
• New Zealand's EEZ is the fourth largest in the world, partly due to claims for the uninhabited Kermadec Islands group.
• The United States, though not a party to UNCLOS, claims 200-nm EEZs for Pacific remote islands including Baker, Howland, Jarvis, and Wake Islands, a practice recognized by Kiribati in a maritime boundary treaty.
• The author posits that a 'double standard' exists because Australia, France, Japan, New Zealand, and the U.S. press China and the Philippines to abide by the 2016 Award while maintaining their own claims to EEZs for features that would be 'rocks' under the Tribunal's interpretation.
• The author suggests that the Tribunal's conclusion that no State practice differed from its interpretation was unconvincing, as at least ten parties to UNCLOS have maritime claims and practices that contradict the ruling.

APA

Song, Y.-H. (n.d.). The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices. Peace Research Institute Oslo. https://cdn.cloud.prio.org/files/b61bd59c-4852-4608-80de-2d4af0eedcc1/The July 2016 Arbitral Award Interpretation of Article 1213 of the UNCLOS and Selecting Examples of Inconsistent State Practices.pdf?inline=true

Chicago

Song, Yann-huei. The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices. Peace Research Institute Oslo, n.d. https://cdn.cloud.prio.org/files/b61bd59c-4852-4608-80de-2d4af0eedcc1/The July 2016 Arbitral Award Interpretation of Article 1213 of the UNCLOS and Selecting Examples of Inconsistent State Practices.pdf?inline=true.

Wikipedia

{{cite report |last1=Song |first1=Yann-huei |title=The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices |publisher=Peace Research Institute Oslo |url=https://cdn.cloud.prio.org/files/b61bd59c-4852-4608-80de-2d4af0eedcc1/The July 2016 Arbitral Award Interpretation of Article 1213 of the UNCLOS and Selecting Examples of Inconsistent State Practices.pdf?inline=true |access-date=23 October 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{songndjuly, author = {Song, Yann-huei}, title = {{The July 2016 Arbitral Award, Interpretation of Article 121(3) of the UNCLOS, and Selecting Examples of Inconsistent State Practices}}, institution = {Peace Research Institute Oslo}, url = {https://cdn.cloud.prio.org/files/b61bd59c-4852-4608-80de-2d4af0eedcc1/The July 2016 Arbitral Award Interpretation of Article 1213 of the UNCLOS and Selecting Examples of Inconsistent State Practices.pdf?inline=true}, urldate = {2026-10-23}, note = {Indexed by Climate Insights Directory} }