'Human habitation or economic life of their own’: the definition of features between history, technology and the law

Article 121(3) of the United Nations Convention on the Law of the Sea (UNCLOS) establishes the regime of geographical features. It distinguishes the island from rocks, by defining the former as a naturally formed area of land, surrounded by water, which is above water at high tide; the latter as features ‘which cannot sustain human habitation or economic life of their own.’ The nature of the feature impacts on the sovereign rights recognized to the coastal States: if the feature is qualified as an island, it entitles the coastal State to 200 miles of exclusive economic zone and continental shelf, with undisputed right of exclusive exploitation of natural resources located within the area. By contrast, if the feature is qualified as a rock, the coastal State is only entitled to the territorial sea. Article 121(3) of UNCLOS and the formula ‘rocks which cannot sustain human habitation or economic life of their own’ have been subject to substantive interpretation for the first time by an international tribunal in The South China Sea Arbitration (Philippines v. China) Award. Starting from this Award, the present paper explores further the requisites of ‘human habitation or economic life’ and discusses what value shall be attributed to the technological development vis à vis historical excursus. The paper will review relevant States’ practice, scholarly works and tribunals’ decisions in the field and discuss how far (if any) could technological means go to support a feature’s capacity.