142
Y. Ishii
It starts with raising a problem that how China will designate its baselines in the
Spratlys and what is the legal status of the maritime zones will “directly define the
navigation regimes” in the waters.
It traces the history of the special status of archipelagic water since the 1920s, the
travaux preparatoire of Part IV of UNCLOS, and relevant state practices. It confirms
that, regardless of the disagreements, it was decided by the Second Committee and
the Conference that the archipelagic state regime only to independent archipelagic
states meeting the criteria in Article 46.
43
However, the authors emphasize that there existed continued disagreement among
the participants of UNCLOS III. Debated continued after the convention was adopted.
Without explicitly mentioning the theoretical ground, the authors claim that a continental state could enjoy straight baselines to its mid-ocean archipelagos, citing five
state practices, namely, Ecuador did to Galapagos Islands, Denmark to Faroe Islands,
Norway to Svalbard Islands, and Spain to Canary Islands and Portugal Azores Islands.
In conclusion, it justifies China’s drawing straight baselines on the Pratas Islands and
Senkaku Islands (Diaoyu Dao).
All of these arguments had to do with some stretching in its interpretation of
UNCLOS. Some of them had to go back to the travaux preparatoire of the Convention, after admitting the fact that the Spratly Islands do not satisfy the conditions
provided under Article 47. It would be easy to criticize such an approach that recourse
to the preparatory work and the circumstances of its conclusion are only the supplementary means of interpretation, only to be made to confirm the meaning of the
provision when the literal interpretation leaves the meaning ambiguous or obscure,
or it leads to a result which is manifestly absurd or unreasonable.
44 Their arguments
do not demonstrate the needs to rely on such a method of interpretation.
In addition, it should be noted that the application of the baselines is based on
solely on geographical factors. All provisions, namely, Articles 5, 7, and 47, merely
provides such a condition. Therefore, claims based on non-geographical elements
such as the historical use of the area or the security interest as the basis of the
application of Article 7 seems to be groundless.
45
8.3.2 A Regime Established Under Customary International
Law Beyond UNCLOS
The other set of the scholarly writings claim that an independent regime was created
under customary international law. Zhang, in his corresponding chapter, takes this
position. In order to justify this argument, one has to negate the comprehensiveness
and the superiority of UNCLOS as discussed in Sect. 8.2.
43 Ibid.
44 Vienna Convention on The Law of Treaties, 23 May 1969, 332 UNTS 1979, Article 32.
45 For such a claim, see Li and Jie, supra note 30.
Y. Ishii
It starts with raising a problem that how China will designate its baselines in the
Spratlys and what is the legal status of the maritime zones will “directly define the
navigation regimes” in the waters.
It traces the history of the special status of archipelagic water since the 1920s, the
travaux preparatoire of Part IV of UNCLOS, and relevant state practices. It confirms
that, regardless of the disagreements, it was decided by the Second Committee and
the Conference that the archipelagic state regime only to independent archipelagic
states meeting the criteria in Article 46.
43
However, the authors emphasize that there existed continued disagreement among
the participants of UNCLOS III. Debated continued after the convention was adopted.
Without explicitly mentioning the theoretical ground, the authors claim that a continental state could enjoy straight baselines to its mid-ocean archipelagos, citing five
state practices, namely, Ecuador did to Galapagos Islands, Denmark to Faroe Islands,
Norway to Svalbard Islands, and Spain to Canary Islands and Portugal Azores Islands.
In conclusion, it justifies China’s drawing straight baselines on the Pratas Islands and
Senkaku Islands (Diaoyu Dao).
All of these arguments had to do with some stretching in its interpretation of
UNCLOS. Some of them had to go back to the travaux preparatoire of the Convention, after admitting the fact that the Spratly Islands do not satisfy the conditions
provided under Article 47. It would be easy to criticize such an approach that recourse
to the preparatory work and the circumstances of its conclusion are only the supplementary means of interpretation, only to be made to confirm the meaning of the
provision when the literal interpretation leaves the meaning ambiguous or obscure,
or it leads to a result which is manifestly absurd or unreasonable.
44 Their arguments
do not demonstrate the needs to rely on such a method of interpretation.
In addition, it should be noted that the application of the baselines is based on
solely on geographical factors. All provisions, namely, Articles 5, 7, and 47, merely
provides such a condition. Therefore, claims based on non-geographical elements
such as the historical use of the area or the security interest as the basis of the
application of Article 7 seems to be groundless.
45
8.3.2 A Regime Established Under Customary International
Law Beyond UNCLOS
The other set of the scholarly writings claim that an independent regime was created
under customary international law. Zhang, in his corresponding chapter, takes this
position. In order to justify this argument, one has to negate the comprehensiveness
and the superiority of UNCLOS as discussed in Sect. 8.2.
43 Ibid.
44 Vienna Convention on The Law of Treaties, 23 May 1969, 332 UNTS 1979, Article 32.
45 For such a claim, see Li and Jie, supra note 30.