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《Southeast Asian Studies》 2018-03
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Theoretical Controversy and Practice Differences of the Rock Clause under the United Nations Convention on the Law of the Sea——Also on Defects of the Award of Taiping Island Legal Status in the South China Sea Arbitration

FANG Xu;KoGuan Law School,Shanghai Jiaotong University;  
The Rock Clause under the United Nations Convention on the Law of the Sea provides the criteria between islands and rocks. However,the criteria are so vague that there is much controversy in theory and practice. The tribunal concluded an unprecedented conclusion by interpreting concretely the Rock Clause in the South China Sea Arbitration. Although Taiping Island is the largest feature in the Spratly Islands and has fresh water,food and residential facilities,the tribunal denied island legal status of Taiping Island and identified it as a rock in the final award on South China Sea Case.From the perspective of treaties interpretation,the Arbitration Tribunal's interpretations on Rock Clause are too absurd to be in clear violation of rules of treaties of interpretation provided by VCLT. Interpreting the Rock Clause should meet the ordinary meaning of treaty texts,object and purpose,good interpretation principle and subsequent practice.According to rules of treaties interpretation and present natural situation of Taiping Island,Taiping Island complies with constitutive requirements of the island. Interpreting treaties,which are one of the most important ways to promote the development of rule of international law,should comply with the principle of advancing gradually in due order.
【Fund】: 国家社科基金一般项目“岛礁建设的国际法问题研究”(16CFX065);; 上海高校智库“国家海洋战略与权益研究基地”2016年招标课题“南海争端之政治立场与司法应对的耦合研究”(BV-COLP2016013)
【CateGory Index】: D993.5
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