8 A Critique Against the Concept of Mid-Ocean Archipelago
143
In June 2018, Chinese Society of International Law (CSIL) published a 500 pages
report entitled “The South China Sea Awards: A Critical Study.” It was a product
of the examination of the South China Sea Award led by a research group of the
Society, from September 2016 to December 2017, where more than 60 experts in the
fields of law, international relations, history, geography participated.
46
In CSIL’s report, the study group severely criticizes the award as follows.
548. In the Award of 12 July, the Tribunal failed to give proper effect to China’s position on the archipelago as a unit for sovereignty and maritime entitlement and delimitation
purposes. It erroneously addressed separately the status of the component features of China’s
Nansha Qundao and Zhongsha Qundao, in effect dismembering the two archipelagos and
fragmenting the territorial and maritime delimitation dispute between China and the Philippines in the South China Sea. The Tribunal maintained that continental States’ offshore
archipelagos (“outlying archipelagos” is more often and more generally used, and will be
used in this Study) should not be enclosed within a system of archipelagic or straight baselines pursuant to the Convention, and denied China’s Nansha Qundao as a unit any maritime
entitlement. The Tribunal’s approach in effect dismembered China’s Nansha Qundao and
Zhongsha Qundao, infringing China’s sovereignty, territorial integrity and maritime rights
and entitlements.
In criticizing the logic of the award, the Society claims that the regime of midocean archipelago (or, in the words of the report, “the regime of archipelago as a
unit”
47 ) as such is “not dealt with in the Convention, but has been well established
under customary international law.”
48
Its reasoning is summarized in the followings. First, it claims that the regime is
well established under general international law before UNCLOS was adopted.
49 The
convention does not address the regime of mid-ocean archipelago as such, because
it was shelved in the course of the Third United Nations Conference on Law of the
Sea. However, the report highlights that continental states defended the regime of
mid-ocean archipelago during the negotiation. Then it claims that it is well established under customary international law, because there are sufficient state practices
concerning the status of outlying archipelagos as units and associated opinio juris.
50
In order to acquire the status, the archipelago has to satisfy the one defined in Article
46(b). The report explains that this condition is reflection of the customary international law.
51 It claims that the status of Spratly Islands as mid-ocean archipelago
has been well established because it meets the criteria required under customary
international law.
In making its claim, it starts with listing the state practices beginning in the
nineteenth century.
52 In fact, it refers earlier practices such as Hawaiian Islands
46 Chinese Society of International Law, ‘The South China Sea Arbitration Awards: A Critical Study’
(2018) 17 Chinese Journal of International Law 207, para. 6.
47 See ibid.
48 Ibid.
49 Ibid.
50 Ibid.
51 Ibid.
52 Ibid.
143
In June 2018, Chinese Society of International Law (CSIL) published a 500 pages
report entitled “The South China Sea Awards: A Critical Study.” It was a product
of the examination of the South China Sea Award led by a research group of the
Society, from September 2016 to December 2017, where more than 60 experts in the
fields of law, international relations, history, geography participated.
46
In CSIL’s report, the study group severely criticizes the award as follows.
548. In the Award of 12 July, the Tribunal failed to give proper effect to China’s position on the archipelago as a unit for sovereignty and maritime entitlement and delimitation
purposes. It erroneously addressed separately the status of the component features of China’s
Nansha Qundao and Zhongsha Qundao, in effect dismembering the two archipelagos and
fragmenting the territorial and maritime delimitation dispute between China and the Philippines in the South China Sea. The Tribunal maintained that continental States’ offshore
archipelagos (“outlying archipelagos” is more often and more generally used, and will be
used in this Study) should not be enclosed within a system of archipelagic or straight baselines pursuant to the Convention, and denied China’s Nansha Qundao as a unit any maritime
entitlement. The Tribunal’s approach in effect dismembered China’s Nansha Qundao and
Zhongsha Qundao, infringing China’s sovereignty, territorial integrity and maritime rights
and entitlements.
In criticizing the logic of the award, the Society claims that the regime of midocean archipelago (or, in the words of the report, “the regime of archipelago as a
unit”
47 ) as such is “not dealt with in the Convention, but has been well established
under customary international law.”
48
Its reasoning is summarized in the followings. First, it claims that the regime is
well established under general international law before UNCLOS was adopted.
49 The
convention does not address the regime of mid-ocean archipelago as such, because
it was shelved in the course of the Third United Nations Conference on Law of the
Sea. However, the report highlights that continental states defended the regime of
mid-ocean archipelago during the negotiation. Then it claims that it is well established under customary international law, because there are sufficient state practices
concerning the status of outlying archipelagos as units and associated opinio juris.
50
In order to acquire the status, the archipelago has to satisfy the one defined in Article
46(b). The report explains that this condition is reflection of the customary international law.
51 It claims that the status of Spratly Islands as mid-ocean archipelago
has been well established because it meets the criteria required under customary
international law.
In making its claim, it starts with listing the state practices beginning in the
nineteenth century.
52 In fact, it refers earlier practices such as Hawaiian Islands
46 Chinese Society of International Law, ‘The South China Sea Arbitration Awards: A Critical Study’
(2018) 17 Chinese Journal of International Law 207, para. 6.
47 See ibid.
48 Ibid.
49 Ibid.
50 Ibid.
51 Ibid.
52 Ibid.