7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
127
cannot be based on Article 7, as the requirements for recourse to Article 7 are
not met in this case. The two longest segments of the straight baselines amount to
78.8 nm and 75.8 nm. Nor can China rely on Article 47, as archipelagic straight baselines only apply to archipelagic States. As a continental State, China cannot establish archipelagic straight baselines around dependent islands. Alternatively, even if
the Xisha/Paracel Islands was an archipelagic state, there would be no basis for
archipelagic baselines because the water to land ratio would be approximate 26.1:1,
far exceeding the maximum allowed ratio of 9:1 under Article 47(1).
45
On 10 September 2012, as a countermeasure towards Japan’s nationalization
movement of the Diaoyu Islands, China proclaimed straight baselines around the
Diaoyu Islands. The first group of straight baselines connects Diaoyu Dao, Haitun
Dao, Xiahuya Dao, Haixing Dao, Huangwei Yu, Haigui Dao, Changlong Dao,
Nanxiao Dao, and Changyu Dao. The second group of straight baselines connects
Chiwei Yu, Wangchi Dao, Xiaochiwei Dao, Chibeibei Dao, and Chibeidong Dao.
46
Nonetheless, J. Ashley Roach points out that both sets of straight baselines cannot
be based on Articles 7 and 47 of LOSC because the water to land ratio with regard
to the first group of Diaoyu Islands is 27.1:1, and the longest two segments of the
straight baselines are 16.22 nm (Diaoyu Dao to Haitun Dao) and 14.06 nm (Haigui
Dao to Changlong Dao).
47 Besides, on 7 March 2013, the USA sent a diplomatic
note to China and protested the straight baselines as applied to Diaoyu Islands. In
the diplomatic note, the USA particularly emphasized that:
To the extent that the Statement might be intended to suggest that archipelagic baselines
may be drawn around the Diaoyu/Senkaku Islands, this also would be inconsistent with
international law. Under customary international law, as reflected in Part IV of the Law of
the Sea Convention, only “archipelagic States” may draw archipelagic baselines joining the
outermost points of an archipelago. Coastal States, such as China and the United States, do
not meet the definition of an “archipelagic States” reflected in Part IV of the Convention.
China, therefore, may not draw archipelagic baselines enclosing offshore islands and waters,
and the proper baselines for such features is the low-water line of the islands. 48
As the foregoing analysis illustrates, there exists a customary rule that “continental States are entitled to apply straight baselines to dependent mid-ocean
archipelagos” , and the dependent archipelagic straight baselines enjoys a sui generis
nature. Thus, the USA’s analogical application of Articles 7 and 47 of LOSC is not
without problem. The key assessment standard lies in whether the Xisha/Paracel
Islands and Diaoyu Islands meet the nature of unity, and those criteria extracted
from the LOSC and state practice are followed in general.
45 USA Department of State, “Straight Baseline Claim: China”, Limits in the Seas, No. 117, p. 17.
46 China, “Statement of the Government of the People’s Republic of China on the Baselines of the
Territorial Sea of Diaoyu Dao and Its Affiliated Islands”, UN Law of the Sea Bulletin, No. 80, 2013,
pp. 30–31.
47 J. Ashley Roach, “China’s Straight Baseline Claim: Senkaku (Diaoyu) Islands”, ASIL Insights,
vol.17, Issue 7, February 13, 2013, p. 5.
48 J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”,
Ocean Development and International Law, Vol. 49, 2018, pp. 200–201.
127
cannot be based on Article 7, as the requirements for recourse to Article 7 are
not met in this case. The two longest segments of the straight baselines amount to
78.8 nm and 75.8 nm. Nor can China rely on Article 47, as archipelagic straight baselines only apply to archipelagic States. As a continental State, China cannot establish archipelagic straight baselines around dependent islands. Alternatively, even if
the Xisha/Paracel Islands was an archipelagic state, there would be no basis for
archipelagic baselines because the water to land ratio would be approximate 26.1:1,
far exceeding the maximum allowed ratio of 9:1 under Article 47(1).
45
On 10 September 2012, as a countermeasure towards Japan’s nationalization
movement of the Diaoyu Islands, China proclaimed straight baselines around the
Diaoyu Islands. The first group of straight baselines connects Diaoyu Dao, Haitun
Dao, Xiahuya Dao, Haixing Dao, Huangwei Yu, Haigui Dao, Changlong Dao,
Nanxiao Dao, and Changyu Dao. The second group of straight baselines connects
Chiwei Yu, Wangchi Dao, Xiaochiwei Dao, Chibeibei Dao, and Chibeidong Dao.
46
Nonetheless, J. Ashley Roach points out that both sets of straight baselines cannot
be based on Articles 7 and 47 of LOSC because the water to land ratio with regard
to the first group of Diaoyu Islands is 27.1:1, and the longest two segments of the
straight baselines are 16.22 nm (Diaoyu Dao to Haitun Dao) and 14.06 nm (Haigui
Dao to Changlong Dao).
47 Besides, on 7 March 2013, the USA sent a diplomatic
note to China and protested the straight baselines as applied to Diaoyu Islands. In
the diplomatic note, the USA particularly emphasized that:
To the extent that the Statement might be intended to suggest that archipelagic baselines
may be drawn around the Diaoyu/Senkaku Islands, this also would be inconsistent with
international law. Under customary international law, as reflected in Part IV of the Law of
the Sea Convention, only “archipelagic States” may draw archipelagic baselines joining the
outermost points of an archipelago. Coastal States, such as China and the United States, do
not meet the definition of an “archipelagic States” reflected in Part IV of the Convention.
China, therefore, may not draw archipelagic baselines enclosing offshore islands and waters,
and the proper baselines for such features is the low-water line of the islands. 48
As the foregoing analysis illustrates, there exists a customary rule that “continental States are entitled to apply straight baselines to dependent mid-ocean
archipelagos” , and the dependent archipelagic straight baselines enjoys a sui generis
nature. Thus, the USA’s analogical application of Articles 7 and 47 of LOSC is not
without problem. The key assessment standard lies in whether the Xisha/Paracel
Islands and Diaoyu Islands meet the nature of unity, and those criteria extracted
from the LOSC and state practice are followed in general.
45 USA Department of State, “Straight Baseline Claim: China”, Limits in the Seas, No. 117, p. 17.
46 China, “Statement of the Government of the People’s Republic of China on the Baselines of the
Territorial Sea of Diaoyu Dao and Its Affiliated Islands”, UN Law of the Sea Bulletin, No. 80, 2013,
pp. 30–31.
47 J. Ashley Roach, “China’s Straight Baseline Claim: Senkaku (Diaoyu) Islands”, ASIL Insights,
vol.17, Issue 7, February 13, 2013, p. 5.
48 J. Ashley Roach, “Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?”,
Ocean Development and International Law, Vol. 49, 2018, pp. 200–201.