136
Y. Ishii
situated wholly beyond the territorial sea or submerged features. However, these
violations are rather technical in its nature and it is not difficult for other states to
point out the deviation.
13 The coastal states are not eager to claim the lines that do
not satisfy the criteria of UNCLOS.
14
Contrary to these practices, the mid-ocean archipelago is the case where a state
with a relatively large mainland establishes baseline surrounding a group of islands.
Hua Zhang, the author of the corresponding chapter in this book, describes that
mid-ocean archipelagoes could be roughly categorized into two. The first is the
archipelagos consist of one or two dominant islands and a fringe of islands along the
coast in its immediate vicinity; and the ones consist of islands of similar size, which
are located at a far distance from each other.
15
However, Zhang’s definition of mid-ocean archipelago requires further elaboration because the description of the latter group, particularly “a far distance from
each other” is too obscure. In addition, the “fringe of islands” provided in this article
shall be by definition distinguished from “mid-ocean archipelago.” It is therefore
no surprise that the United States has tolerated the former but criticized the latter.
Instead, the present chapter uses the term “mid-ocean archipelago” only to point the
latter category, because the former is governed by Article 7 of UNCLOS.
The rest of this chapter will analyze the scope of Article 7 (straight baselines) and
Article 47 (archipelagic baselines) of UNCLOS. It will then examine the comprehensiveness of the UNCLOS as well as its superiority to pre-existing customary
international law in the light of the current problem (Sect. 8.2). Then, it will
briefly consider the counter-argument of this chapter, mainly focusing on Chinese
researchers (Sect. 8.3). This chapter will not discuss the legality of the straight baselines surrounding Senkaku Islands, which was touched upon in Hua’s chapter, since
it requires the decision on the attribution of the territorial title of the islands, which
is beyond the scope of this volume.
8.2 The Lack of Recognition of Mid-Ocean Archipelago
under UNCLOS and Customary International Law:
The Comprehensiveness and Superiority of UNCLOS
The supporters of the baselines surrounding a mid-ocean archipelago commonly
claim that there is an “uncertainty,” “ambiguity” or a “lacuna” within the UNCLOS
regime.
It is undisputed there is neither a provision which allows a coastal state to establish
a baseline surrounding a mid-ocean archipelago, nor prohibits a State from doing so.
13 C. G. Lathrop, ‘Baselines’ in Donald Rothwell (ed), Oxford Handbook of The Law of The Sea
(Oxford University Press 2015), 69.
14 Ibid; Roach and Smith, supra note 11, 209. For instance, Cape Verde rectified the baseline system
to bring it into conformity with Article 47 after it was criticized that its baseline was excessive.
15 See Hua Zhang, Chap. 7 of the present volume.
Y. Ishii
situated wholly beyond the territorial sea or submerged features. However, these
violations are rather technical in its nature and it is not difficult for other states to
point out the deviation.
13 The coastal states are not eager to claim the lines that do
not satisfy the criteria of UNCLOS.
14
Contrary to these practices, the mid-ocean archipelago is the case where a state
with a relatively large mainland establishes baseline surrounding a group of islands.
Hua Zhang, the author of the corresponding chapter in this book, describes that
mid-ocean archipelagoes could be roughly categorized into two. The first is the
archipelagos consist of one or two dominant islands and a fringe of islands along the
coast in its immediate vicinity; and the ones consist of islands of similar size, which
are located at a far distance from each other.
15
However, Zhang’s definition of mid-ocean archipelago requires further elaboration because the description of the latter group, particularly “a far distance from
each other” is too obscure. In addition, the “fringe of islands” provided in this article
shall be by definition distinguished from “mid-ocean archipelago.” It is therefore
no surprise that the United States has tolerated the former but criticized the latter.
Instead, the present chapter uses the term “mid-ocean archipelago” only to point the
latter category, because the former is governed by Article 7 of UNCLOS.
The rest of this chapter will analyze the scope of Article 7 (straight baselines) and
Article 47 (archipelagic baselines) of UNCLOS. It will then examine the comprehensiveness of the UNCLOS as well as its superiority to pre-existing customary
international law in the light of the current problem (Sect. 8.2). Then, it will
briefly consider the counter-argument of this chapter, mainly focusing on Chinese
researchers (Sect. 8.3). This chapter will not discuss the legality of the straight baselines surrounding Senkaku Islands, which was touched upon in Hua’s chapter, since
it requires the decision on the attribution of the territorial title of the islands, which
is beyond the scope of this volume.
8.2 The Lack of Recognition of Mid-Ocean Archipelago
under UNCLOS and Customary International Law:
The Comprehensiveness and Superiority of UNCLOS
The supporters of the baselines surrounding a mid-ocean archipelago commonly
claim that there is an “uncertainty,” “ambiguity” or a “lacuna” within the UNCLOS
regime.
It is undisputed there is neither a provision which allows a coastal state to establish
a baseline surrounding a mid-ocean archipelago, nor prohibits a State from doing so.
13 C. G. Lathrop, ‘Baselines’ in Donald Rothwell (ed), Oxford Handbook of The Law of The Sea
(Oxford University Press 2015), 69.
14 Ibid; Roach and Smith, supra note 11, 209. For instance, Cape Verde rectified the baseline system
to bring it into conformity with Article 47 after it was criticized that its baseline was excessive.
15 See Hua Zhang, Chap. 7 of the present volume.