7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
129
Admittedly, compared with the practice of Xisha/Paracel Islands and Diaoyu
Islands, the application of straight baselines to the three other groups of islands in the
South China Sea, i.e. Nansha/Spratly Island, Zhongsha Islands/Macclesfield Bank,
Dongsha/Pratas Islands, would be a relatively tough mission. In light of comments
and research works by authors from outside China, there are around 200 maritime
features in the South China Sea, and their exact legal entitlement in drawing the
baselines need to be identified individually.
53 Moreover, most of the islands within the
scope of the Nansha/Spratly Islands are controlled by different bordering countries of
the South China Sea, which could render China’s proclamation of straight baselines
merely of assertive meaning. For the time being, there is still no explicit evidence
that China will proclaim straight baselines around the Nansha/Spratly Islands in the
immediate aftermath of the South China Sea Arbitration, which might be interpreted
as a self-restraint policy so as to avoid the aggravation or extension of the existing
disputes.
Notwithstanding the above difficulties, as the Diaoyu Islands dispute between
China and Japan illustrates, it is predictable that if other claimant States, especially
Vietnam and the Philippines, drive China to settle the South China Sea dispute without
patience, China may be forced to take certain countermeasures to demonstrate its
determination to safeguard national interest, including the proclamation of straight
baselines of the three other groups of “islands” in the South China Sea. After all,
continental States are not forbidden to apply straight baselines to their mid-ocean
archipelagos under international law.
7.5 Concluding Remarks
In essence, mid-ocean archipelagos belonging to continental States share the
same interest and needs as archipelagic States,
54 while LOSC only provides for
archipelagic baselines applied to the latter. This gap has to a certain extent been
filled by the rule of customary international law that “continental States are entitled
to apply straight baselines to dependent mid-ocean archipelagos”. Accordingly, at
least in the respect of entitlement, LOSC has a very limited, if not negligible, role
in assessing the legality of the straight baselines as applied to dependent mid-ocean
archipelagos.
Since the application of straight baselines would necessarily encircle a great area
of ocean, and the original balance between maritime powers and coastal states established under LOSC would be difficult to be maintained, the relevant states should
53 See Robert W. Smith, “Maritime Delimitation in South China Sea: Potentiality and Challenges”,
Ocean Development and International Law, Vol. 41, 2010, pp. 222–223; also Robert Beckman &
Clive H. Schofield, “Defining EEZ Claims from Islands: A Potential South China Sea Change”,
International Journal of Marine and Coastal Law, Vol.29, 2014, pp. 210–211.
54 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, pp. 236–243; also Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of
the Sea, Martinus Nijhoff Publishers, 1995, pp. 27–37.
129
Admittedly, compared with the practice of Xisha/Paracel Islands and Diaoyu
Islands, the application of straight baselines to the three other groups of islands in the
South China Sea, i.e. Nansha/Spratly Island, Zhongsha Islands/Macclesfield Bank,
Dongsha/Pratas Islands, would be a relatively tough mission. In light of comments
and research works by authors from outside China, there are around 200 maritime
features in the South China Sea, and their exact legal entitlement in drawing the
baselines need to be identified individually.
53 Moreover, most of the islands within the
scope of the Nansha/Spratly Islands are controlled by different bordering countries of
the South China Sea, which could render China’s proclamation of straight baselines
merely of assertive meaning. For the time being, there is still no explicit evidence
that China will proclaim straight baselines around the Nansha/Spratly Islands in the
immediate aftermath of the South China Sea Arbitration, which might be interpreted
as a self-restraint policy so as to avoid the aggravation or extension of the existing
disputes.
Notwithstanding the above difficulties, as the Diaoyu Islands dispute between
China and Japan illustrates, it is predictable that if other claimant States, especially
Vietnam and the Philippines, drive China to settle the South China Sea dispute without
patience, China may be forced to take certain countermeasures to demonstrate its
determination to safeguard national interest, including the proclamation of straight
baselines of the three other groups of “islands” in the South China Sea. After all,
continental States are not forbidden to apply straight baselines to their mid-ocean
archipelagos under international law.
7.5 Concluding Remarks
In essence, mid-ocean archipelagos belonging to continental States share the
same interest and needs as archipelagic States,
54 while LOSC only provides for
archipelagic baselines applied to the latter. This gap has to a certain extent been
filled by the rule of customary international law that “continental States are entitled
to apply straight baselines to dependent mid-ocean archipelagos”. Accordingly, at
least in the respect of entitlement, LOSC has a very limited, if not negligible, role
in assessing the legality of the straight baselines as applied to dependent mid-ocean
archipelagos.
Since the application of straight baselines would necessarily encircle a great area
of ocean, and the original balance between maritime powers and coastal states established under LOSC would be difficult to be maintained, the relevant states should
53 See Robert W. Smith, “Maritime Delimitation in South China Sea: Potentiality and Challenges”,
Ocean Development and International Law, Vol. 41, 2010, pp. 222–223; also Robert Beckman &
Clive H. Schofield, “Defining EEZ Claims from Islands: A Potential South China Sea Change”,
International Journal of Marine and Coastal Law, Vol.29, 2014, pp. 210–211.
54 See Sophia Kopela, Dependent Archipelagos in the Law of the Sea, Martinus Nijhoff Publishers,
2013, pp. 236–243; also Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of
the Sea, Martinus Nijhoff Publishers, 1995, pp. 27–37.