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| On the Questionable Interpretation of Article 121(3) of UNCLOS in the Award of the South China Sea Arbitration |
| Hainan University |
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Abstract The interpretation of Article 121 (3) of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) was finally done by the tribunal for the SinoPhilippine arbitration on the South China Sea issue in July 2016. Examinations by renowned scholars demonstrated that the tribunals interpretation deviated from international practice. The paper employs the principles of treaty interpretation codified by Article 31 of the 1969 Vienna Convention on the Law of Treaties to evaluate such an interpretation process. The paper proposes that the tribunal paid scant attention to the key words such as “rocks” in plural form as the first word and “which” as the second word of Article 121 (3). The tribunal also turned a blind eye to the first seven words in Article 121 (2), which makes up the immediate context for an impartial interpretation of Article 121 (3). Furthermore, insignificant materials were adopted by the tribunal to define the object and purpose, which also goes to travaux préparatoires. In such a way of “interpretation”, the tribunal revived unaccepted proposals submitted during the treaty negotiation. Given the fact that lots of general principles of treaty interpretation were violated, the non-conformity with such an interpretation by UNCLOS contracting parties shall be expected and justified.
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