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The program was co-sponsored by the International Environmental Law Interest Group, International Courts and Tribunals Interest Group, and the Law of the Sea Interest Group.
The panel was moderated by Coalter Lathrop (Sovereign Geographic) and the panelists included David Freestone (George Washington University School of Law), Douglas Guilfoyle (Monash University Faculty of Law), Oliver Lewis (U.S. Department of State), and Joanna Mossop (Victoria University of Wellington Faculty of Law.
The moderator started by mentioning that the award in the South China Sea Arbitration was issued in 2016. The tribunal constituted under Annex VII of the UN Convention on the Law of the Sea is the first to give sustained attention to the interpretation and application of the regime of islands under Article 121 of the Convention. He mentioned that the panel would explore and critique the South China Sea Tribunal's interpretation of Article 121(3), and consider the implications for other States with remote island exclusive economic zone claims. He also cautioned that the panel would actively avoid the political discussion in that region and examine this issue in a more general legal context.
Oliver Lewis is an attorney in the Office of Legal Advisers at the U.S. Department of State. Lewis started by giving the audience a brief introduction to some key terms related to the discussion by the panelists. He talked about the Tribunal's statement that size itself does not matter for purpose of Art. 121, and the Tribunal did not include a discussion of size in determining the capability of sustaining human habitation and an economy of its own. He also commented that the Tribunal's approach was shaped in a way such that they had to look at other sources, because one of the parties did not participate in the proceeding and that party is probably the state with the most knowledge of the physical conditions in that area.
Joanna Mossop teaches law of the sea at Victoria University of Wellington, Faculty of Law. She started by saying the tribunal gave a very detailed interpretation of some specific terms in the Convention. She noted that one of the very interesting comments made by the Tribunal is that historic links and situations should be looked at in order to determine whether certain areas are capable of sustaining human habitation within Art. 121 of the Convention. Mossop also noted other important interpretations of terms made in the Award and the Tribunal's comments on the potential impact on smaller island states.
David Freestone teaches at George Washington University School of Law. He talked about the importance of the tribunal's interpretation of sustaining human habitation, which included the standard of sustaining an "economy of its own." This is a very high bar and it means economic value is not sufficient. This interpretation adheres to a very classic and strict interpretation of law of the sea. He also commented on the judicial assessment, both in terms of sovereignty and sovereign rights, in two previous cases concerning the claims of islands.
Douglas Guilfoyle is a law professor at Monash University, Faculty of Law in Australia. Guilfoyle commented on the linkage between the Tribunal's interpretation of Art. 121 and the object and purpose of the Convention. The Tribunal has really underlined the historic features and examined what the island regime within the Convention is for. The Tribunal intended to "recover" the purpose of the Convention and to restrict the Exclusive Economic Zone (EEZ) regime from going too far in the field of the law of the sea. Further on the standard of "habitation", he talked about Australia's and New Zealand's practice and the climate changes' implication on this issue.
The panelists provided their valuable insights on the interpretation of Art.121 and the Tribunal's Award's implication for the islands regime within the law of the sea. The panelists also brought the discussion to a broader context and examined this question in various geographical regions.
Junteng Zheng is a public international lawyer based in D.C. He studies and works on public international law and international criminal law.