116
H. Zhang
This chapter first explores the legal basis for applying straight baselines to midocean archipelagos so as to demonstrate the limited role of LOSC in this regard and
identify the sui generis nature of dependent archipelagic straight baselines from the
perspective of customary international law. By making reference to provisions on
straight baselines in LOSC and relevant state practice, it endeavors to identify the
criteria for the application of straight baselines to mid-ocean archipelagos. In light of
these criteria, it examines China’s existing practice in applying straight baselines to
the Xisha/Paracel Islands and Diaoyu Islands, and explores the potential for China’s
future application of straight baselines in the South China Sea.
7.2 The Legal Basis for the Application of Straight
Baselines to Dependent Mid-Ocean Archipelagos
Early in the 1990s, Vaughan Lowe and Robin Churchill acknowledged the embarrassing fact that, according to the definition of “archipelago” and “archipelagic
State” provided in LOSC, archipelagic baselines cannot be drawn around mid-ocean
archipelagos belonging to mainland States, nor can this method be justified under
LOSC, even though it is used in a series of state practice.
5 In their view, Article 47
of LOSC constitutes an unnecessary and unreasonable restriction because only an
archipelagic State [emphasis in origin] can draw archipelagic baselines around an
archipelago.
6 By simply referring to some typical mid-ocean archipelagos involving
straight baselines, they straightforwardly asserted that “to the extent that such claims
have been recognized by other States, they must be regarded as being valid under
customary international law”.
7 It seems the legal basis for the application of straight
baselines to dependent mid-ocean archipelagos should no longer be in doubt. To date,
however, some commentators still rely upon Articles 7 & 47 of LOSC and reject any
other sources of international law, e.g. customary international law,
8 which seems to
exaggerate the regulating effect of LOSC in this respect.
7.2.1 Limited Role of LOSC in Regulating Dependent
Mid-Ocean Archipelagos
Article 7 of the LOSC stipulates that straight baselines apply to the continental States.
As an exception to normal baselines, i.e. the low-water line, straight baselines might
5 R. R. Churchill & A. V. Lowe, The Law of the Sea, 3rd Edition, Manchester University Press,
1999, p. 120.
6 Ibid.
7 Ibid., p. 121.
8 International Law Commission, Baselines under the Law of the Sea: Final Report, 2018, paras.
89–92, available at: http://www.ila-hq.org/images/ILA/DraftReports/DraftReport_Baselines.pdf.
H. Zhang
This chapter first explores the legal basis for applying straight baselines to midocean archipelagos so as to demonstrate the limited role of LOSC in this regard and
identify the sui generis nature of dependent archipelagic straight baselines from the
perspective of customary international law. By making reference to provisions on
straight baselines in LOSC and relevant state practice, it endeavors to identify the
criteria for the application of straight baselines to mid-ocean archipelagos. In light of
these criteria, it examines China’s existing practice in applying straight baselines to
the Xisha/Paracel Islands and Diaoyu Islands, and explores the potential for China’s
future application of straight baselines in the South China Sea.
7.2 The Legal Basis for the Application of Straight
Baselines to Dependent Mid-Ocean Archipelagos
Early in the 1990s, Vaughan Lowe and Robin Churchill acknowledged the embarrassing fact that, according to the definition of “archipelago” and “archipelagic
State” provided in LOSC, archipelagic baselines cannot be drawn around mid-ocean
archipelagos belonging to mainland States, nor can this method be justified under
LOSC, even though it is used in a series of state practice.
5 In their view, Article 47
of LOSC constitutes an unnecessary and unreasonable restriction because only an
archipelagic State [emphasis in origin] can draw archipelagic baselines around an
archipelago.
6 By simply referring to some typical mid-ocean archipelagos involving
straight baselines, they straightforwardly asserted that “to the extent that such claims
have been recognized by other States, they must be regarded as being valid under
customary international law”.
7 It seems the legal basis for the application of straight
baselines to dependent mid-ocean archipelagos should no longer be in doubt. To date,
however, some commentators still rely upon Articles 7 & 47 of LOSC and reject any
other sources of international law, e.g. customary international law,
8 which seems to
exaggerate the regulating effect of LOSC in this respect.
7.2.1 Limited Role of LOSC in Regulating Dependent
Mid-Ocean Archipelagos
Article 7 of the LOSC stipulates that straight baselines apply to the continental States.
As an exception to normal baselines, i.e. the low-water line, straight baselines might
5 R. R. Churchill & A. V. Lowe, The Law of the Sea, 3rd Edition, Manchester University Press,
1999, p. 120.
6 Ibid.
7 Ibid., p. 121.
8 International Law Commission, Baselines under the Law of the Sea: Final Report, 2018, paras.
89–92, available at: http://www.ila-hq.org/images/ILA/DraftReports/DraftReport_Baselines.pdf.