8 A Critique Against the Concept of Mid-Ocean Archipelago
139
from the issues of the territorial sea and the baseline, partly because of such a
peculiar political background.
26 With this regards, the practices regarding the midocean archipelago, such as Denmark and Ecuador among others, did not count in the
creation of Part IV of the convention.
However, a treaty “shall be interpreted in good faith in accordance with the ordinary meaning in their context and in the light of its object and purpose.
27 ” The
circumstances of its conclusion is relevant only when the wordings are not clear,
which is not the present case. In any event, Article 47 is not the only provision of
which definition is somewhat selective or which does not necessarily match with
the pre-UNCLOS history. Compromises were made in the convention to achieve
the consensus of the conference. The delicate balance of interests embedded in
the convention does not allow rights and agreements of the member states when
it contravenes with this instrument.
The other side of the coin is the superiority of UNCLOS to pre-convention norms.
It is that the UNCLOS is a treaty that is to be the “constitution” of law of the
sea. In other words, it has the superior status than other treaties and customary
international laws. Therefore, it is considered that the convention supersedes earlier
rights and agreements to the extent of any incompatibility. Otherwise, it would make
the comprehensiveness of the instrument meaningless.
Scholars who support the idea of mid-ocean archipelago tend to cite state practices
prior to the codification of the law of the sea. However, such contention is not upheld
because the practices contrary to the UNCLOS regime does not count after the
allocation of the jurisdiction is done under this convention.
8.3 The Case for Mid-Ocean Archipelago?
8.3.1 The Straight Baseline Surrounding Mid-Ocean
Archipelago
The writings by Chinese scholars in English started to appear in the early 2010s.
28
In its early stage, scholars tend to claim that the baseline regime under UNCLOS is
applicable to the mid-ocean archipelago. They start their argument by pointing out
the “unclarity” of the legal status. While conceding that the off-shore archipelago
is not provided under Part IV of the UNCLOS, they claim that straight baseline
under Article 7 is applicable because the legal status of the mid-ocean archipelago
is ambiguous.
26 Shigeru Oda, The Law of The Sea In Our Time II (Sijthoff 1977), 156; GA Official Record, 27th
Sess. Supp. No. 21 (A/8721), Chap. 1, para. 23.
27 Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entered into force on 27
January 1980, 1155 UNTS 331, Article 31(1).
28 Its Chinese version started to be published earlier. Due to the limitation on the author’s language
capacity, this chapter has not covered Chinese writings at this stage.
139
from the issues of the territorial sea and the baseline, partly because of such a
peculiar political background.
26 With this regards, the practices regarding the midocean archipelago, such as Denmark and Ecuador among others, did not count in the
creation of Part IV of the convention.
However, a treaty “shall be interpreted in good faith in accordance with the ordinary meaning in their context and in the light of its object and purpose.
27 ” The
circumstances of its conclusion is relevant only when the wordings are not clear,
which is not the present case. In any event, Article 47 is not the only provision of
which definition is somewhat selective or which does not necessarily match with
the pre-UNCLOS history. Compromises were made in the convention to achieve
the consensus of the conference. The delicate balance of interests embedded in
the convention does not allow rights and agreements of the member states when
it contravenes with this instrument.
The other side of the coin is the superiority of UNCLOS to pre-convention norms.
It is that the UNCLOS is a treaty that is to be the “constitution” of law of the
sea. In other words, it has the superior status than other treaties and customary
international laws. Therefore, it is considered that the convention supersedes earlier
rights and agreements to the extent of any incompatibility. Otherwise, it would make
the comprehensiveness of the instrument meaningless.
Scholars who support the idea of mid-ocean archipelago tend to cite state practices
prior to the codification of the law of the sea. However, such contention is not upheld
because the practices contrary to the UNCLOS regime does not count after the
allocation of the jurisdiction is done under this convention.
8.3 The Case for Mid-Ocean Archipelago?
8.3.1 The Straight Baseline Surrounding Mid-Ocean
Archipelago
The writings by Chinese scholars in English started to appear in the early 2010s.
28
In its early stage, scholars tend to claim that the baseline regime under UNCLOS is
applicable to the mid-ocean archipelago. They start their argument by pointing out
the “unclarity” of the legal status. While conceding that the off-shore archipelago
is not provided under Part IV of the UNCLOS, they claim that straight baseline
under Article 7 is applicable because the legal status of the mid-ocean archipelago
is ambiguous.
26 Shigeru Oda, The Law of The Sea In Our Time II (Sijthoff 1977), 156; GA Official Record, 27th
Sess. Supp. No. 21 (A/8721), Chap. 1, para. 23.
27 Vienna Convention on the Law of Treaties, adopted on 23 May 1969, entered into force on 27
January 1980, 1155 UNTS 331, Article 31(1).
28 Its Chinese version started to be published earlier. Due to the limitation on the author’s language
capacity, this chapter has not covered Chinese writings at this stage.