8 A Critique Against the Concept of Mid-Ocean Archipelago
141
propose to split the islands and apply different rules respectively.
36 For the group of
reefs that are close to each other and can be considered as a whole, the straight base
lines can be applied. For those islands among the reefs that are not appropriate to be
considered as a whole. If they are sufficiently large, they can have their own separate
baselines. For some isolated islands and reefs, whether to draw marine areas other
than territorial sea and contiguous zone depends on their natural condition.
37
The Pratas Islands and the Macclesfield Bank and Scarborough Shoal are not
regarded as archipelago and the paper does not go into further examination whether
they are entitled to an archipelagic baseline. It is pointed out, however, that the
Scarborough Reef and the Pratas Island can apply straight baselines to draw their
territorial seas separately.
38
In 2012, Jia Nan similarly claim that the legal status off-shore archipelagos remain
unsettled, while recognizing that they are distinct from Part IV of UNCLOS. After
making the distinction between “coastal” and “outlying” archipelagos, the paper
points out that “the legal regime of the outlying archipelagos of continental State
remains ambiguous.”
39
He then describes the opposing views during UNCLOS III as well as
“diverging state practices and various theories of publists.”
40 Regarding the outlying
archipelagos of continental countries, “no definitive provision exists” whether the
state may draw a straight baseline or an archipelagic baseline. He claims that (1)
outlying archipelagos of continental state may draw straight baselines from the outermost points of the islands, islets and rocks and (2) in deciding the nature of waters
of the baselines, “the close dependence of the territorial sea upon the land domain
will always be the essential principle.”
41 The article does not examine the precise
conditions for a state to draw a straight baseline under Article 7 of the UNCLOS,
nor the paper provide analysis whether China is entitled to draw a line around the
Spratly Islands and others in the South China Sea.
In 2013, Hong Nong, Li Jianwei, and Chen Pingping claim that the straight baseline regime is applicable to mid-ocean archipelago, including the Spratly Islands.
42
It is to balance “the need of coastal States and that of many user States in this region”
and “the rights of oceanic islands of archipelagic States and those of continental
States.”
36 Ibid.
37 Ibid, 183–185.
38 Ibid.
39 Jia Nan, ‘On the Outlying Archipelagos of Continental States’ (2012) 2012 China Oceans Law
Review 41, 44.
40 Ibid.
41 Ibid.
42 Hong Nong, Li Jianwei and Chen Pingping, ‘The Concept of Archipelagic State and the South
China Sea: UNCLOS, State Practice and Implication’ (2013) 2013 China Oceans Law Review 209.
141
propose to split the islands and apply different rules respectively.
36 For the group of
reefs that are close to each other and can be considered as a whole, the straight base
lines can be applied. For those islands among the reefs that are not appropriate to be
considered as a whole. If they are sufficiently large, they can have their own separate
baselines. For some isolated islands and reefs, whether to draw marine areas other
than territorial sea and contiguous zone depends on their natural condition.
37
The Pratas Islands and the Macclesfield Bank and Scarborough Shoal are not
regarded as archipelago and the paper does not go into further examination whether
they are entitled to an archipelagic baseline. It is pointed out, however, that the
Scarborough Reef and the Pratas Island can apply straight baselines to draw their
territorial seas separately.
38
In 2012, Jia Nan similarly claim that the legal status off-shore archipelagos remain
unsettled, while recognizing that they are distinct from Part IV of UNCLOS. After
making the distinction between “coastal” and “outlying” archipelagos, the paper
points out that “the legal regime of the outlying archipelagos of continental State
remains ambiguous.”
39
He then describes the opposing views during UNCLOS III as well as
“diverging state practices and various theories of publists.”
40 Regarding the outlying
archipelagos of continental countries, “no definitive provision exists” whether the
state may draw a straight baseline or an archipelagic baseline. He claims that (1)
outlying archipelagos of continental state may draw straight baselines from the outermost points of the islands, islets and rocks and (2) in deciding the nature of waters
of the baselines, “the close dependence of the territorial sea upon the land domain
will always be the essential principle.”
41 The article does not examine the precise
conditions for a state to draw a straight baseline under Article 7 of the UNCLOS,
nor the paper provide analysis whether China is entitled to draw a line around the
Spratly Islands and others in the South China Sea.
In 2013, Hong Nong, Li Jianwei, and Chen Pingping claim that the straight baseline regime is applicable to mid-ocean archipelago, including the Spratly Islands.
42
It is to balance “the need of coastal States and that of many user States in this region”
and “the rights of oceanic islands of archipelagic States and those of continental
States.”
36 Ibid.
37 Ibid, 183–185.
38 Ibid.
39 Jia Nan, ‘On the Outlying Archipelagos of Continental States’ (2012) 2012 China Oceans Law
Review 41, 44.
40 Ibid.
41 Ibid.
42 Hong Nong, Li Jianwei and Chen Pingping, ‘The Concept of Archipelagic State and the South
China Sea: UNCLOS, State Practice and Implication’ (2013) 2013 China Oceans Law Review 209.