122
H. Zhang
Although Ecuador’s declaration generated some concern from Spain, UK, Greece,
and the EU to different extents,
33 it at least suggests that Ecuador’s application of
straight baselines is out of the sense of legal rights.
7.2.2.3 Duration as a Complementary Factor
According to ILC’s draft conclusion, if state practice is general, no particular duration
is required.
34 Nevertheless, for the completeness of legal reasoning, the duration of
state practice might to a certain extent consolidate the foregoing analysis.
In terms of duration, continental States have been continuously applying straight
baselines to mid-ocean archipelagos for nearly a century. Early in 1903, Demark
treated the Faroe Islands as a unit for the demarcation of its maritime zones. Similarly,
in 1934, Ecuador enacted the first decree concerning the Galapagos Islands which also
treated this archipelago as a whole for the measurement of territorial seas. Especially
since the 1960s, many continental States have laid down legislation which provides
for the application of straight baselines to mid-ocean archipelagos.
35 Although there
is no definite duration for the crystallization of customary international law, it is
sufficient in light of the long history of straight baselines as applied to the mid-ocean
archipelagos.
7.2.2.4 USA as a “Persistent Objector”?
As a manifestation of state consent, there exists a special regime on persistent objector
which allows specific states to claim waiver from the legally binding effect of a newly
established rule of customary international law. In accordance with the ILC’s draft
conclusions on identification of customary international law, the regime on persistent
objector applies in the following scenario:
1. Where a State has objected to a rule of customary international law while that rule
was in the process of formation, the rule is not opposable to the State concerned
for so long as it maintains its objection.
2. The objection must be clearly expressed, made known to other States, and
maintained persistently.
33 As regards Communications related to the Declaration made by Ecuador upon accession and
Objections related to the Declaration made by Ecuador upon accession, See UN Law of the Sea
Bulletin, No. 83, 2014, pp. 14–19.
34 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.
35 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, pp. 117–139, pp. 117–139; also Chinese Society of International Law, “South China Sea
Arbitration Awards: A Critical Study”, Chinese Journal of International Law, Vol. 17, 2018, pp. 487–
492; Chinese.
H. Zhang
Although Ecuador’s declaration generated some concern from Spain, UK, Greece,
and the EU to different extents,
33 it at least suggests that Ecuador’s application of
straight baselines is out of the sense of legal rights.
7.2.2.3 Duration as a Complementary Factor
According to ILC’s draft conclusion, if state practice is general, no particular duration
is required.
34 Nevertheless, for the completeness of legal reasoning, the duration of
state practice might to a certain extent consolidate the foregoing analysis.
In terms of duration, continental States have been continuously applying straight
baselines to mid-ocean archipelagos for nearly a century. Early in 1903, Demark
treated the Faroe Islands as a unit for the demarcation of its maritime zones. Similarly,
in 1934, Ecuador enacted the first decree concerning the Galapagos Islands which also
treated this archipelago as a whole for the measurement of territorial seas. Especially
since the 1960s, many continental States have laid down legislation which provides
for the application of straight baselines to mid-ocean archipelagos.
35 Although there
is no definite duration for the crystallization of customary international law, it is
sufficient in light of the long history of straight baselines as applied to the mid-ocean
archipelagos.
7.2.2.4 USA as a “Persistent Objector”?
As a manifestation of state consent, there exists a special regime on persistent objector
which allows specific states to claim waiver from the legally binding effect of a newly
established rule of customary international law. In accordance with the ILC’s draft
conclusions on identification of customary international law, the regime on persistent
objector applies in the following scenario:
1. Where a State has objected to a rule of customary international law while that rule
was in the process of formation, the rule is not opposable to the State concerned
for so long as it maintains its objection.
2. The objection must be clearly expressed, made known to other States, and
maintained persistently.
33 As regards Communications related to the Declaration made by Ecuador upon accession and
Objections related to the Declaration made by Ecuador upon accession, See UN Law of the Sea
Bulletin, No. 83, 2014, pp. 14–19.
34 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.
35 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, pp. 117–139, pp. 117–139; also Chinese Society of International Law, “South China Sea
Arbitration Awards: A Critical Study”, Chinese Journal of International Law, Vol. 17, 2018, pp. 487–
492; Chinese.