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H. Zhang
psychological element, i.e. opinio juris, which refers to “a general practice accepted
as law”, or to put it in another way, the motive for states to abide by the general
practice is not out of comity, but of normativity.
25 Besides, although the passage of
only a short period of time is not necessarily a bar to the formation of a new rule of
customary international law, a certain duration is an indispensable requirement.
26
7.2.2.1 State Practice
In terms of the material element of customary rule, the practices of Denmark,
Ecuador, Norway, UK, France, Australia, Spain, Portugal, Myanmar and India as
mentioned above can to a certain extent contribute to the formation of customary
international law with regard to the application of straight baselines to mid-ocean
archipelagos.
As regards uniformity and consistency, the relevant states applied straight baselines to their qualified archipelagos in accordance with the specific geographical
features. Admittedly, for those unqualified islands which spread broadly over the
ocean in a rather random way, the UK and France did not treat those islands as a
unit and apply straight baselines to all the islands. Instead, they applied the straight
baselines to individual islands, or merely to certain part of the islands. However,
such practices do not affect overall uniformity and consistency. After all, for interconnecting islands, they endeavor to employ the straight baselines through diverse
methods. As far as generality is concerned, the number of the relevant States applying
straight baselines to mid-ocean archipelagos, on the face of it, seems to be limited,
but taking account of the fact that those States are leading maritime States and
continental States possessing mid-ocean archipelagos themselves are in the minority
on the planet of Earth, their practices represent the mainstream of the international
community. It is to be noted that, apart from the USA, other States seldom put forward
official and public protest when the States concerned applied straight baselines to
dependent mid-ocean archipelagos,
27 which conversely established the generality
of such practices. Besides, on account of the diversity of the international community, the understanding of uniformity, consistency and generality should not go to an
extreme. Otherwise, there would be no opportunity for the formation of customary
rules.
25 James Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford
University Press, 2012, pp. 22–25.
26 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), ICJ Reports 1969,
para. 74.
27 Chris Whomersley, “Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley
Roach”, Ocean Development and International Law, Vol. 49, 2018, p. 205.
H. Zhang
psychological element, i.e. opinio juris, which refers to “a general practice accepted
as law”, or to put it in another way, the motive for states to abide by the general
practice is not out of comity, but of normativity.
25 Besides, although the passage of
only a short period of time is not necessarily a bar to the formation of a new rule of
customary international law, a certain duration is an indispensable requirement.
26
7.2.2.1 State Practice
In terms of the material element of customary rule, the practices of Denmark,
Ecuador, Norway, UK, France, Australia, Spain, Portugal, Myanmar and India as
mentioned above can to a certain extent contribute to the formation of customary
international law with regard to the application of straight baselines to mid-ocean
archipelagos.
As regards uniformity and consistency, the relevant states applied straight baselines to their qualified archipelagos in accordance with the specific geographical
features. Admittedly, for those unqualified islands which spread broadly over the
ocean in a rather random way, the UK and France did not treat those islands as a
unit and apply straight baselines to all the islands. Instead, they applied the straight
baselines to individual islands, or merely to certain part of the islands. However,
such practices do not affect overall uniformity and consistency. After all, for interconnecting islands, they endeavor to employ the straight baselines through diverse
methods. As far as generality is concerned, the number of the relevant States applying
straight baselines to mid-ocean archipelagos, on the face of it, seems to be limited,
but taking account of the fact that those States are leading maritime States and
continental States possessing mid-ocean archipelagos themselves are in the minority
on the planet of Earth, their practices represent the mainstream of the international
community. It is to be noted that, apart from the USA, other States seldom put forward
official and public protest when the States concerned applied straight baselines to
dependent mid-ocean archipelagos,
27 which conversely established the generality
of such practices. Besides, on account of the diversity of the international community, the understanding of uniformity, consistency and generality should not go to an
extreme. Otherwise, there would be no opportunity for the formation of customary
rules.
25 James Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford
University Press, 2012, pp. 22–25.
26 North Sea Continental Shelf (Germany/Denmark; Germany/Netherlands), ICJ Reports 1969,
para. 74.
27 Chris Whomersley, “Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley
Roach”, Ocean Development and International Law, Vol. 49, 2018, p. 205.