7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
119
upon the answer to the question “whether there are any customary rules of international law with regard to the straight baselines as applied to dependent mid-ocean
archipelagos?” Early in the 1990s, a commentator held that, “the issue of mid-ocean
archipelagos of continental States is yet to be addressed and the practice of such
states…may provide new dimensions for further development of the archipelagic
concept in international law”.
20 It seems the accumulation of state practice might
generate a new rule of international law. However, as another commentator points
out recently, “the status of dependent archipelagos is still mired in uncertainty, with
divergent views as to whether there is indeed a customary international law principle that allows dependent archipelagos to draw straight baselines or archipelagic
baselines around its island”.
21 To remedy such a legal uncertainty, the present author
endeavors to clarify the legal status of straight baselines as applied to dependent
mid-ocean archipelagos from the perspective of customary law.
7.2.2 Customary International Law as an Alternative?
The identification of customary international law has been one of the most challenging projects for international lawyers. As the jurisprudence of international judicial bodies, such as the ICJ, illustrates, the identification process can be as flexible as
the interpretation process.
22 In this sense, the existence of customary international
law to a certain extent depends on the approach adopted by the competent courts or
tribunals. Be that as it may, the report on the identification of customary international
law as drafted by Special Rapporteur Sir Michael Wood
23 under the authority of the
International Law Commission is of great reference value for international lawyers.
It is to be noted that, based on the work of the Draft Committee, the International
Law Commission adopted the entire set of draft conclusions on the identification of
customary international law on its second reading at its seventieth session in 2018.
24
Therefore, there exists a set of well-established rules which makes the identification
of customary international law more predictable and feasible.
To determine the existence of customary international law, two elements have to
be satisfied simultaneously: first, the material element, i.e. general practice, which
requires the uniformity, consistency and generality of state practice; second, the
20 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea , Martinus Nijhoff
Publishers, 1995, p. 97.
21 Tara Davenport, “The Archipelagic Regime”, in Donald R. Rothwell et al. (eds.), The Oxford
Handbook of the Law of the Sea, Oxford University Press, 2015, p. 156.
22 Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology between
Induction, Deduction and Assertion”, European Journal of International Law, Vol. 26, 2015,
pp. 441–443.
23 Michael Wood, The Fifth Report on Identification of Customary International Law, A/CN.4/L.717,
14 March 2018.
24 Text of the Draft Conclusions on Identification of Customary International Law, International
Law Commission Annual Report on the Seventieth Session (2018), A/73/10, pp. 119–122.
119
upon the answer to the question “whether there are any customary rules of international law with regard to the straight baselines as applied to dependent mid-ocean
archipelagos?” Early in the 1990s, a commentator held that, “the issue of mid-ocean
archipelagos of continental States is yet to be addressed and the practice of such
states…may provide new dimensions for further development of the archipelagic
concept in international law”.
20 It seems the accumulation of state practice might
generate a new rule of international law. However, as another commentator points
out recently, “the status of dependent archipelagos is still mired in uncertainty, with
divergent views as to whether there is indeed a customary international law principle that allows dependent archipelagos to draw straight baselines or archipelagic
baselines around its island”.
21 To remedy such a legal uncertainty, the present author
endeavors to clarify the legal status of straight baselines as applied to dependent
mid-ocean archipelagos from the perspective of customary law.
7.2.2 Customary International Law as an Alternative?
The identification of customary international law has been one of the most challenging projects for international lawyers. As the jurisprudence of international judicial bodies, such as the ICJ, illustrates, the identification process can be as flexible as
the interpretation process.
22 In this sense, the existence of customary international
law to a certain extent depends on the approach adopted by the competent courts or
tribunals. Be that as it may, the report on the identification of customary international
law as drafted by Special Rapporteur Sir Michael Wood
23 under the authority of the
International Law Commission is of great reference value for international lawyers.
It is to be noted that, based on the work of the Draft Committee, the International
Law Commission adopted the entire set of draft conclusions on the identification of
customary international law on its second reading at its seventieth session in 2018.
24
Therefore, there exists a set of well-established rules which makes the identification
of customary international law more predictable and feasible.
To determine the existence of customary international law, two elements have to
be satisfied simultaneously: first, the material element, i.e. general practice, which
requires the uniformity, consistency and generality of state practice; second, the
20 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea , Martinus Nijhoff
Publishers, 1995, p. 97.
21 Tara Davenport, “The Archipelagic Regime”, in Donald R. Rothwell et al. (eds.), The Oxford
Handbook of the Law of the Sea, Oxford University Press, 2015, p. 156.
22 Stefan Talmon, “Determining Customary International Law: The ICJ’s Methodology between
Induction, Deduction and Assertion”, European Journal of International Law, Vol. 26, 2015,
pp. 441–443.
23 Michael Wood, The Fifth Report on Identification of Customary International Law, A/CN.4/L.717,
14 March 2018.
24 Text of the Draft Conclusions on Identification of Customary International Law, International
Law Commission Annual Report on the Seventieth Session (2018), A/73/10, pp. 119–122.