124
H. Zhang
It follows from the foregoing that, continental States are entitled to apply the
system of straight baselines to dependent mid-ocean archipelagos, which constitutes a rule of customary international law resulting from the existence of general
state practice and opinio juris. Naturally, any claim based on customary international
law will generate legal controversies among international lawyers. Due to different
perspectives or positions, the understanding on legal basis for the application of
straight baselines can hardly be reconciled with one voice. Bearing in mind the ICJ’s
jurisprudence in identifying customary rules, however, strict approaches towards
identification of customary international law in the case of applying straight baselines to mid-ocean archipelagos appear to be extreme, or at least lack the minimum
tolerance. In terms of legitimate concerns, inter alia, geography, history, security,
economic development and environment protection, the mid-ocean archipelagos
belonging to continental States share no less interest than archipelagic States.
7.3 The Requirements for Applying Straight Baseline
to the Mid-Ocean Archipelagos
It is to be noted that early in 1958, Jens Evensen, the then Advocate at the
Supreme Court of Norway, had produced an authoritative report on the application
of straight baselines to mid-ocean archipelagos. In its conclusion, he acknowledged
that “no hard and fast rules exist as to the delimitation of the territorial waters of
archipelagos…However, this does not mean that rules and principles do not exist, or
should not be established, but that such rules ought to have a certain flexibility”.
41 In
the present author’s opinion, Evensen’s conclusion can be regarded as the best guideline for us to identify the legal basis of straight baselines as applied to dependent
archipelagos.
There are a lot of unresolved issues left by UNCLOS III, and new challenges and
problems have arisen since the entry into force of LOSC. Nowadays, an increasing
number of international lawyers believe that LOSC is not a static monument, but a
“living instrument”, which calls for dynamic interpretation so as to match up with
changing circumstances.
42 As to those matters not regulated by LOSC, the drafters
acknowledged in the preamble to LOSC that such matters “continue to be governed
by the rules and principles of general international law”. Against this background, it
is reasonable to adopt an open and flexible approach to the existence of a customary
rule that “continental States are entitled to apply the system of straight baselines to
dependent mid-ocean archipelagos”. Such a straightforward acknowledgement can
to a certain degree ease the legal uncertainties that have haunted continental States
41 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters
of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law
of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 301.
42 See Judge Vladimir Golitsyn, “Foreword”, in Alexander Proelss (ed.), United Nations Convention
on the Law of the Sea: A Commentary, C.H. Beck, Hart and Nomos, 2017.
H. Zhang
It follows from the foregoing that, continental States are entitled to apply the
system of straight baselines to dependent mid-ocean archipelagos, which constitutes a rule of customary international law resulting from the existence of general
state practice and opinio juris. Naturally, any claim based on customary international
law will generate legal controversies among international lawyers. Due to different
perspectives or positions, the understanding on legal basis for the application of
straight baselines can hardly be reconciled with one voice. Bearing in mind the ICJ’s
jurisprudence in identifying customary rules, however, strict approaches towards
identification of customary international law in the case of applying straight baselines to mid-ocean archipelagos appear to be extreme, or at least lack the minimum
tolerance. In terms of legitimate concerns, inter alia, geography, history, security,
economic development and environment protection, the mid-ocean archipelagos
belonging to continental States share no less interest than archipelagic States.
7.3 The Requirements for Applying Straight Baseline
to the Mid-Ocean Archipelagos
It is to be noted that early in 1958, Jens Evensen, the then Advocate at the
Supreme Court of Norway, had produced an authoritative report on the application
of straight baselines to mid-ocean archipelagos. In its conclusion, he acknowledged
that “no hard and fast rules exist as to the delimitation of the territorial waters of
archipelagos…However, this does not mean that rules and principles do not exist, or
should not be established, but that such rules ought to have a certain flexibility”.
41 In
the present author’s opinion, Evensen’s conclusion can be regarded as the best guideline for us to identify the legal basis of straight baselines as applied to dependent
archipelagos.
There are a lot of unresolved issues left by UNCLOS III, and new challenges and
problems have arisen since the entry into force of LOSC. Nowadays, an increasing
number of international lawyers believe that LOSC is not a static monument, but a
“living instrument”, which calls for dynamic interpretation so as to match up with
changing circumstances.
42 As to those matters not regulated by LOSC, the drafters
acknowledged in the preamble to LOSC that such matters “continue to be governed
by the rules and principles of general international law”. Against this background, it
is reasonable to adopt an open and flexible approach to the existence of a customary
rule that “continental States are entitled to apply the system of straight baselines to
dependent mid-ocean archipelagos”. Such a straightforward acknowledgement can
to a certain degree ease the legal uncertainties that have haunted continental States
41 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters
of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law
of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 301.
42 See Judge Vladimir Golitsyn, “Foreword”, in Alexander Proelss (ed.), United Nations Convention
on the Law of the Sea: A Commentary, C.H. Beck, Hart and Nomos, 2017.