Certain Historical Evidence (and Their Implications) Overlooked by the Arbitral Tribunal of the South China Sea Arbitration: Application of Article 121(3) on Spratly Islands
As part of its arbitration case on the South China Sea, the Philippines requested the arbitral tribunal to determine the status of certain features of the Spratly Islands under Article 121 of the 1982 United Nations Convention on the Law of the Sea. The Tribunal first clarified the meaning of the article, then subsequently applied it to the features in question, before concluding that no feature in this area is capable of generating an exclusive economic zone or continental shelf, for the reason that the features failed to satisfy the two criteria set forth in Article 121(3)-"human habitation" and "economic life of their own." This article examines the historical evidence that was used to determine whether the maritime features in question satisfy these two criteria. It finds that there were existing evidence and additional materials that were overlooked by the Tribunal, with implications which could potentially have led to an alternative outcome.