7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
123
3. The present conclusion is without prejudice to any question concerning peremptory norms of general international law (jus cogens).
36
Bearing this in mind, the persistent protest of USA should not become an obstacle
to the formation of customary international law. Whenever some States employ the
system of straight baselines to mid-ocean archipelagos, the USA shows no tolerance
and puts forward protest through diplomatic and military channels. Its attitude can
be detected from the website of the USA Department of State. Since the 1970s, it has
been issuing the series of reports entitled Limits in the Seas,
37 with the aim to examine
the maritime boundaries of other States and assess their consistency with international
law. The USA has been insisting upon the application of normal baselines to all midocean archipelagos. The problem is, Can the USA’s strong opposition block the
formation of customary rules with regard to the application of straight baselines
to mid-ocean archipelagos? In international law, a State may exempt itself from
the application of a new customary rule by persistent objection during the norm’s
formation.
38 Hence, in light of general international law and the ILC’s conclusion
on persistent objector, USA’s standpoint might have potential impact on the relevant
States, but can hardly deny the existence of the customary rules.
Notably, in a recent journal article published in Ocean Development and International Law, J. Ashley Roach, who once served as a legal adviser at the USA Department of State, points out that “six of the 15 claims to enclose offshore archipelagos
have been protested by nine states”.
39 He endeavors to deny the generality of state
practice concerning the application of straight baselines to mid-ocean archipelagos.
If this is the whole picture, it seems the USA is not alone in fighting against so-called
excessive maritime claims with respect to straight baselines. In a reply to Roach,
Chris Whomersley, the former Deputy Legal Adviser of UK Foreign & Commonwealth Office, adds a more nuanced analysis. According to Whomersley, “of those
fifteen instances, there were objections to less than half of them (seven out of 15),
and in a majority of the instances where there was an objection, the United States
was the sole objector(four out of seven).”
40 Provided the specific circumstances can
be taken into account seriously, Whomerley’s research findings seem closer to the
facts. Therefore, the USA remains alone as a persistent objector when it comes to
the formation of a customary rule on straight baselines as applied to mid-ocean
archipelagos.
36 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. 121.
37 The Limits in the Seas reports are available at: https://www.state.gov/limits-in-the-seas/ (Accessed
on 8 June 2020).
38 James Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford
University Press, 2012, p. 28.
39 J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”,
Ocean Development and International Law, Vol. 49, 2018, pp. 179–181.
40 Chris Whomersley, “Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley
Roach”, Ocean Development and International Law, Vol. 49, 2018, pp. 204–205.
123
3. The present conclusion is without prejudice to any question concerning peremptory norms of general international law (jus cogens).
36
Bearing this in mind, the persistent protest of USA should not become an obstacle
to the formation of customary international law. Whenever some States employ the
system of straight baselines to mid-ocean archipelagos, the USA shows no tolerance
and puts forward protest through diplomatic and military channels. Its attitude can
be detected from the website of the USA Department of State. Since the 1970s, it has
been issuing the series of reports entitled Limits in the Seas,
37 with the aim to examine
the maritime boundaries of other States and assess their consistency with international
law. The USA has been insisting upon the application of normal baselines to all midocean archipelagos. The problem is, Can the USA’s strong opposition block the
formation of customary rules with regard to the application of straight baselines
to mid-ocean archipelagos? In international law, a State may exempt itself from
the application of a new customary rule by persistent objection during the norm’s
formation.
38 Hence, in light of general international law and the ILC’s conclusion
on persistent objector, USA’s standpoint might have potential impact on the relevant
States, but can hardly deny the existence of the customary rules.
Notably, in a recent journal article published in Ocean Development and International Law, J. Ashley Roach, who once served as a legal adviser at the USA Department of State, points out that “six of the 15 claims to enclose offshore archipelagos
have been protested by nine states”.
39 He endeavors to deny the generality of state
practice concerning the application of straight baselines to mid-ocean archipelagos.
If this is the whole picture, it seems the USA is not alone in fighting against so-called
excessive maritime claims with respect to straight baselines. In a reply to Roach,
Chris Whomersley, the former Deputy Legal Adviser of UK Foreign & Commonwealth Office, adds a more nuanced analysis. According to Whomersley, “of those
fifteen instances, there were objections to less than half of them (seven out of 15),
and in a majority of the instances where there was an objection, the United States
was the sole objector(four out of seven).”
40 Provided the specific circumstances can
be taken into account seriously, Whomerley’s research findings seem closer to the
facts. Therefore, the USA remains alone as a persistent objector when it comes to
the formation of a customary rule on straight baselines as applied to mid-ocean
archipelagos.
36 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. 121.
37 The Limits in the Seas reports are available at: https://www.state.gov/limits-in-the-seas/ (Accessed
on 8 June 2020).
38 James Crawford, Brownlie’s Principles of Public International Law, 8th edition, Oxford
University Press, 2012, p. 28.
39 J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”,
Ocean Development and International Law, Vol. 49, 2018, pp. 179–181.
40 Chris Whomersley, “Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley
Roach”, Ocean Development and International Law, Vol. 49, 2018, pp. 204–205.