118
H. Zhang
Balearic Islands (Spain), Azores Islands (Portugal), Madeira Islands (Portugal), Co
Co Islands (Myanmar), Preparis Islands (Myanmar), Lakshadweep Islands (India),
Andaman and Nicobar Islands (India), etc.
13 In terms of geographical features, these
archipelagos can be roughly placed into two categories: (a) archipelagos consisting
of one or two dominant islands and a fringe of islands along the coast in its immediate
vicinity; (b) archipelagos consisting of islands of similar size, which are located at a
far distance from each other.
The USA shows tolerance towards those straight baselines as applied to the first
category of mid-ocean archipelagos, while it often expresses strong criticism towards
the second category,
14 or even conducts a series of operational challenges.
15 Regardless of political status, the first category of archipelagos is similar to continental
States possessing a fringe of islands, which might be justified on the basis of Article
7 by analogy. In contrast, the straight baselines applied to the second category of midocean archipelagos can hardly win justification in light of the quantitative conditions
as provided by Article 47. Bearing in mind that those conditions to some extent
reflect the geographical characteristics of those archipelagic States participating in
the UNCLOS III, especially the Philippines and Indonesia,
16 the application of Articles 46 and 47 to dependent mid-ocean archipelagos by analogy would naturally
arrive at the conclusion that the relevant state practice violates LOSC.
17 The deep
concerns of the USA over the straight baselines of mid-ocean archipelagos are still
rooted in the freedom or maneuver of navigation.
18
The precondition for recourse to analogy depends on the question of whether there
is a lacuna in international law. By way of illustration, if the legal rules can be identified through treaty interpretation, or there are customary rules beyond the statutory
rules, recourse to the method of analogy becomes unnecessary.
19 Accordingly, the
legality of applying straight baselines to dependent mid-ocean archipelagos relies
13 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, p. 112–140; also J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines:
An Excessive Claim?”, Ocean Development and International Law, Vol. 49, 2018, pp. 197–202.
14 J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims, 3rd Edition, Martinus Nijhoff
Publishers, 2012, pp. 108–115.
15 As regards the USA’s operational challenges (FONOPs), see USA Department of Defence, Annual
Freedom of Navigation Report 2018, available at: https://policy.defense.gov/OUSDP-Offices/FON/
(last visit on 31 May 2019).
16 See Donald R. Rothwell & Tim Stephens, The International Law of the Sea, Hart Publishing,
2016, pp. 185–191.
17 W. Michael Reisman and Gayl S. Westerman, Straight Baselines in Maritime Boundary
Delimitation, St. Martin’s Press, 1992, p. 156.
18 The “Freedom of Navigation (FON) Program” has been conducted frequently around the world
by the USA since 1979. Whenever some States have employed straight baselines, the USA has
regarded it as excessive maritime claims and carried out a “FON Program” with an aim to express
its concern. There are three ways in which USA conduct the “FON Program”, including: diplomatic
communications; operational assertions; bilateral and multilateral consultations.
19 Silja Vöneky, “Analogy in International Law”, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Volume I), Oxford University Press, 2012, p. 377, para.
16.
H. Zhang
Balearic Islands (Spain), Azores Islands (Portugal), Madeira Islands (Portugal), Co
Co Islands (Myanmar), Preparis Islands (Myanmar), Lakshadweep Islands (India),
Andaman and Nicobar Islands (India), etc.
13 In terms of geographical features, these
archipelagos can be roughly placed into two categories: (a) archipelagos consisting
of one or two dominant islands and a fringe of islands along the coast in its immediate
vicinity; (b) archipelagos consisting of islands of similar size, which are located at a
far distance from each other.
The USA shows tolerance towards those straight baselines as applied to the first
category of mid-ocean archipelagos, while it often expresses strong criticism towards
the second category,
14 or even conducts a series of operational challenges.
15 Regardless of political status, the first category of archipelagos is similar to continental
States possessing a fringe of islands, which might be justified on the basis of Article
7 by analogy. In contrast, the straight baselines applied to the second category of midocean archipelagos can hardly win justification in light of the quantitative conditions
as provided by Article 47. Bearing in mind that those conditions to some extent
reflect the geographical characteristics of those archipelagic States participating in
the UNCLOS III, especially the Philippines and Indonesia,
16 the application of Articles 46 and 47 to dependent mid-ocean archipelagos by analogy would naturally
arrive at the conclusion that the relevant state practice violates LOSC.
17 The deep
concerns of the USA over the straight baselines of mid-ocean archipelagos are still
rooted in the freedom or maneuver of navigation.
18
The precondition for recourse to analogy depends on the question of whether there
is a lacuna in international law. By way of illustration, if the legal rules can be identified through treaty interpretation, or there are customary rules beyond the statutory
rules, recourse to the method of analogy becomes unnecessary.
19 Accordingly, the
legality of applying straight baselines to dependent mid-ocean archipelagos relies
13 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, p. 112–140; also J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines:
An Excessive Claim?”, Ocean Development and International Law, Vol. 49, 2018, pp. 197–202.
14 J. Ashley Roach & Robert W. Smith, Excessive Maritime Claims, 3rd Edition, Martinus Nijhoff
Publishers, 2012, pp. 108–115.
15 As regards the USA’s operational challenges (FONOPs), see USA Department of Defence, Annual
Freedom of Navigation Report 2018, available at: https://policy.defense.gov/OUSDP-Offices/FON/
(last visit on 31 May 2019).
16 See Donald R. Rothwell & Tim Stephens, The International Law of the Sea, Hart Publishing,
2016, pp. 185–191.
17 W. Michael Reisman and Gayl S. Westerman, Straight Baselines in Maritime Boundary
Delimitation, St. Martin’s Press, 1992, p. 156.
18 The “Freedom of Navigation (FON) Program” has been conducted frequently around the world
by the USA since 1979. Whenever some States have employed straight baselines, the USA has
regarded it as excessive maritime claims and carried out a “FON Program” with an aim to express
its concern. There are three ways in which USA conduct the “FON Program”, including: diplomatic
communications; operational assertions; bilateral and multilateral consultations.
19 Silja Vöneky, “Analogy in International Law”, in Rüdiger Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (Volume I), Oxford University Press, 2012, p. 377, para.
16.