7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
121
7.2.2.2 Opinio Juris
In order to determine the existence of opinio juris, it is necessary to take account of
such diverse materials as legislations, judicial decisions, treaties, diplomatic letters,
policy declarations, legal reports, resolutions of international organizations and even
media reports.
28 The relevant States proclaimed their straight baselines through
domestic law or decree, which not only listed the geographic coordinates, but annexed
maps or charts. Some States, e.g. Denmark and Ecuador, even promulgated a series
of legislations on specific archipelagos so as to indicate the straight baselines.
29
These legislations demonstrate that the States concerned consider the application of
straight baselines to mid-ocean archipelagos as a legal right. Additionally, during
the negotiating stage of UNCLOS III, most continental States possessing dependent archipelagos, e.g. Norway, India, Ecuador, made proposals that the system of
straight baselines should be extended to mid-ocean archipelagos.
30 Even after the
entry into force of LOSC, these states insist on their practice and position. Besides,
whenever the USA has put forward official protest against the use of straight baselines, the reactions of the States concerned also displayed the sense of normativity.
For example, in 1986, when USA challenged the legality of the straight baselines
applied to Azores and Madeira Islands, Portugal asserted that its straight baselines
were based on Article 121 instead of Part IV of LOSC.
31 Although Portugal’s reliance
upon Article 121 might be lame from the perspective of positive law, this event reflects
at least the Portugal’s belief that the application of straight baselines to its mid-ocean
archipelagos is not short of legal basis.
The recent evidence concerning the existence of opinio juris in the application
of straight baselines to mid-ocean archipelagos can be identified through Ecuador’s
declaration upon its accession to LOSC. On 24 September 2012, Ecuador acceded
to LOSC, and submitted a declaration which particularly justifies straight baselines
as applied to the Galapagos Archipelago.
Ecuador reiterates the full force and validity of Supreme Decree No. 959-A, published on 28
June 1971 in Official Register No. 265 of 13 July 1971, by means of which it established its
straight baselines in accordance with international law. It reaffirms that the said lines in the
Galapagos Archipelago are determined by the common geological origin of those islands,
their historical unity and the fact that they belong to Ecuador, as well as the need to protect
and preserve their unique ecosystems… 32
28 Text of the Draft Conclusions on Identification of Customary International Law, International
Law Commission Annual Report on the Seventieth Session (2018), A/73/10, p. 120.
29 Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, pp. 125–126.
30 See, e.g. Working Paper of Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New
Zealand and Norway, 26 July 1974, UN Doc. A/CONF.62/L.4, Art. 9.
31 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd edition, Martinus Nijhoff
Publishers, 2012, p. 108.
32 As regards the information on the status of LOSC and the Declaration made by Ecuador upon
accession in 2012, available at: https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&
mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.
121
7.2.2.2 Opinio Juris
In order to determine the existence of opinio juris, it is necessary to take account of
such diverse materials as legislations, judicial decisions, treaties, diplomatic letters,
policy declarations, legal reports, resolutions of international organizations and even
media reports.
28 The relevant States proclaimed their straight baselines through
domestic law or decree, which not only listed the geographic coordinates, but annexed
maps or charts. Some States, e.g. Denmark and Ecuador, even promulgated a series
of legislations on specific archipelagos so as to indicate the straight baselines.
29
These legislations demonstrate that the States concerned consider the application of
straight baselines to mid-ocean archipelagos as a legal right. Additionally, during
the negotiating stage of UNCLOS III, most continental States possessing dependent archipelagos, e.g. Norway, India, Ecuador, made proposals that the system of
straight baselines should be extended to mid-ocean archipelagos.
30 Even after the
entry into force of LOSC, these states insist on their practice and position. Besides,
whenever the USA has put forward official protest against the use of straight baselines, the reactions of the States concerned also displayed the sense of normativity.
For example, in 1986, when USA challenged the legality of the straight baselines
applied to Azores and Madeira Islands, Portugal asserted that its straight baselines
were based on Article 121 instead of Part IV of LOSC.
31 Although Portugal’s reliance
upon Article 121 might be lame from the perspective of positive law, this event reflects
at least the Portugal’s belief that the application of straight baselines to its mid-ocean
archipelagos is not short of legal basis.
The recent evidence concerning the existence of opinio juris in the application
of straight baselines to mid-ocean archipelagos can be identified through Ecuador’s
declaration upon its accession to LOSC. On 24 September 2012, Ecuador acceded
to LOSC, and submitted a declaration which particularly justifies straight baselines
as applied to the Galapagos Archipelago.
Ecuador reiterates the full force and validity of Supreme Decree No. 959-A, published on 28
June 1971 in Official Register No. 265 of 13 July 1971, by means of which it established its
straight baselines in accordance with international law. It reaffirms that the said lines in the
Galapagos Archipelago are determined by the common geological origin of those islands,
their historical unity and the fact that they belong to Ecuador, as well as the need to protect
and preserve their unique ecosystems… 32
28 Text of the Draft Conclusions on Identification of Customary International Law, International
Law Commission Annual Report on the Seventieth Session (2018), A/73/10, p. 120.
29 Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, pp. 125–126.
30 See, e.g. Working Paper of Canada, Chile, Iceland, India, Indonesia, Mauritius, Mexico, New
Zealand and Norway, 26 July 1974, UN Doc. A/CONF.62/L.4, Art. 9.
31 J. Ashley Roach and Robert W. Smith, Excessive Maritime Claims, 3rd edition, Martinus Nijhoff
Publishers, 2012, p. 108.
32 As regards the information on the status of LOSC and the Declaration made by Ecuador upon
accession in 2012, available at: https://treaties.un.org/Pages/ViewDetailsIII.aspx?src=TREATY&
mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&clang=_en#EndDec.