140
Y. Ishii
In writings in Chinese, some scholars seem to argue that the archipelagic baseline
regime may be applicable to mid-ocean archipelagic states.
29 Writings in English,
however, commonly argues that the straight baselines are applicable, as long as they
take the position that UNCLOS is applicable in this case. This section introduces
available materials in turn.
Jiang Li and Zhang Jie elaborates this line of arguments in their paper in 2010.
30 It
starts with the claim that Part IV of UNCLOS does not clearly provides whether the
archipelagic regime applies to the mid ocean archipelagos of continental countries.
After examining the opposing positions regarding the applicability of Part VI to the
mid-ocean archipelago, the authors support the negative conclusion. It is because the
“archipelagic regime which was designed specifically for the archipelago states.
31 ”
However, “the continental countries can regard the mid ocean archipelagos as a single
unit and thus apply the straight baselines regime.”
32
They point out that the opinions regarding the mid-ocean archipelago varied during
the Third Conference on the Law of the Sea (UNCLOS III), and the final text of the
Convention “intentionally avoids mentioning the mid-ocean archipelago.” However,
based on the interpretation of the text and travaux preparatoire, they conclude that
the applicability of the straight baseline is not excluded.
33
Then, they examine whether four groups of islands, namely, Pratas Islands (the
Dongsha Islands), Paracel Islands (the Xisha Islands), Macclesfield Bank and Scarborough Shoal (the Zhongsha Island) and Spratly Islands (Nansha Islands), in the
South China Sea are also eligible for the straight baselines.
34
As to the Paracel Islands, which has the most islands that are above water at high
tide in the South China Sea, the author claims that they could be divided into two
groups, i.e., Amphitrite Group (Xuande Islands) and the Crescent Group (Yongle
Islands). Rather than drawing the baseline separately, the claim that the boundary of
the territorial sea for the Paracel Islands shall be delimited as a whole, because of
“the close relationship between the two islands in geography, and their significant
importance to security and economic interests of China.”
35
Regarding the Spratly Islands, the authors claim that it would not be appropriate
to draw straight baselines to the whole group because it would be too broad. On
the other hand, if each group of reefs is separately considered as a whole to draw
its territorial sea, it would be difficult to select appropriate base points. The authors
29 Jianjun Gao, China and International Law of the Sea (China Ocean Press, 2004), p. 138 (in
Chinese).
30 Jiang Li and Zhang Jie, ‘A Preliminary Analysis of the Application of Archipelagic Regime and
the Delimitation of the South China Sea’ (2010) 2010 China Oceans Law Review 167.
31 Ibid.
32 Ibid, 176.
33 Ibid, 178.
34 Ibid, 179. While the Chinese scholars consistently use Chinese names, for the matter of convenience, this chapter will use English names to describe these islands unless it is necessary to use
Chinese version.
35 Ibid, 181.
Y. Ishii
In writings in Chinese, some scholars seem to argue that the archipelagic baseline
regime may be applicable to mid-ocean archipelagic states.
29 Writings in English,
however, commonly argues that the straight baselines are applicable, as long as they
take the position that UNCLOS is applicable in this case. This section introduces
available materials in turn.
Jiang Li and Zhang Jie elaborates this line of arguments in their paper in 2010.
30 It
starts with the claim that Part IV of UNCLOS does not clearly provides whether the
archipelagic regime applies to the mid ocean archipelagos of continental countries.
After examining the opposing positions regarding the applicability of Part VI to the
mid-ocean archipelago, the authors support the negative conclusion. It is because the
“archipelagic regime which was designed specifically for the archipelago states.
31 ”
However, “the continental countries can regard the mid ocean archipelagos as a single
unit and thus apply the straight baselines regime.”
32
They point out that the opinions regarding the mid-ocean archipelago varied during
the Third Conference on the Law of the Sea (UNCLOS III), and the final text of the
Convention “intentionally avoids mentioning the mid-ocean archipelago.” However,
based on the interpretation of the text and travaux preparatoire, they conclude that
the applicability of the straight baseline is not excluded.
33
Then, they examine whether four groups of islands, namely, Pratas Islands (the
Dongsha Islands), Paracel Islands (the Xisha Islands), Macclesfield Bank and Scarborough Shoal (the Zhongsha Island) and Spratly Islands (Nansha Islands), in the
South China Sea are also eligible for the straight baselines.
34
As to the Paracel Islands, which has the most islands that are above water at high
tide in the South China Sea, the author claims that they could be divided into two
groups, i.e., Amphitrite Group (Xuande Islands) and the Crescent Group (Yongle
Islands). Rather than drawing the baseline separately, the claim that the boundary of
the territorial sea for the Paracel Islands shall be delimited as a whole, because of
“the close relationship between the two islands in geography, and their significant
importance to security and economic interests of China.”
35
Regarding the Spratly Islands, the authors claim that it would not be appropriate
to draw straight baselines to the whole group because it would be too broad. On
the other hand, if each group of reefs is separately considered as a whole to draw
its territorial sea, it would be difficult to select appropriate base points. The authors
29 Jianjun Gao, China and International Law of the Sea (China Ocean Press, 2004), p. 138 (in
Chinese).
30 Jiang Li and Zhang Jie, ‘A Preliminary Analysis of the Application of Archipelagic Regime and
the Delimitation of the South China Sea’ (2010) 2010 China Oceans Law Review 167.
31 Ibid.
32 Ibid, 176.
33 Ibid, 178.
34 Ibid, 179. While the Chinese scholars consistently use Chinese names, for the matter of convenience, this chapter will use English names to describe these islands unless it is necessary to use
Chinese version.
35 Ibid, 181.