144
Y. Ishii
of the Kingdom of Hawaii, Faroe Islands of Denmark and Galapagos Islands of
Ecuador, among others. It argues that the regime was established under customary
international law at the time of the First United Nations Conference on Law of the
Sea, and Article 4 of the 1958 Convention on the Territorial Sea and Contiguous
Zone, which provides for the straight baselines, “covers the idea of archipelago as a
unit.
53 ” Then, UNCLOS “establishes the regime of archipelagic States on the very
foundation stone of archipelago as a unit.
54 ” It thus contends that the regime was
established before the adoption of UNCLOS. It claims that the issue of continental
States’ outlying archipelagos was “shelved” during the negotiation of the Convention,
notwithstanding the claims made by the continental states.
55
The Society’s view coincides with several other writings that were published
before the release of the report.
In 2014, Zhang, the author of the corresponding chapter in this book as well as
one of the contributors of the Chinese Society of International Law’s study, takes the
same standpoint. In his paper of 2014, he had already claimed that the matter was not
regulated by the UNCLOS, and the legality of this type of straight baseline cannot be
resort to the convention.
56 He then argues that such a basis originates from customary
international law. He characterizes that straight baselines to offshore archipelagos
is sui generis and different from normal straight baselines and archipelagic straight
baselines.
57 While he acknowledges claims that the United States protested as excessive, he characterizes the country as a persistent objector, which cannot prevent the
development of international law.
In 2015, Kuen-chen Fu also supports this argument.
58 He recognizes “the principle
of archipelagic waters” to Paracels and other locales in the South China Sea while
delineating sea lanes to “allow foreign vessels and aircrafts to sail through and fly
over the internal waters created by its straight territorial sea baselines in the region.
59 ” In 2017, Han Yuxiao, criticizing the South China Sea Arbitration Award claims
that China should establish a “mid-ocean archipelago regime” in the region as soon as
possible.
60 He points out that “the issue concerning mid-ocean archipelagos of continental States is a legal vacuum left by the UNCLOS.”
61 It refers to the International
53 Ibid.
54 Ibid.
55 Ibid.
56 Zhang Hua, “The Legality of China’s Application of Straight Baselines to Mid-ocean
Archipelagos:New Perspectives from Customary International Law”. 31 Foreign Afffairs Review
129 (2014) (in Chinese).
57 Ibid.
58 Kuen-chen Fu, ‘Freedom of Navigation and the Chinese Straight Baselines in the South China
Sea’ in Myron H. Nordquist and others (eds), Freedom of Navigation and Globalization (Brill 2015)
190.
59 Ibid.
60 Han Yuxiao, ‘An Analysis on The Determination of The Nature of Some Islands Individually As
Requested by The Philippines In the South China Sea Arbitration’ (2017) 2017 China Oceans Law
Review 248.
61 Ibid.
Y. Ishii
of the Kingdom of Hawaii, Faroe Islands of Denmark and Galapagos Islands of
Ecuador, among others. It argues that the regime was established under customary
international law at the time of the First United Nations Conference on Law of the
Sea, and Article 4 of the 1958 Convention on the Territorial Sea and Contiguous
Zone, which provides for the straight baselines, “covers the idea of archipelago as a
unit.
53 ” Then, UNCLOS “establishes the regime of archipelagic States on the very
foundation stone of archipelago as a unit.
54 ” It thus contends that the regime was
established before the adoption of UNCLOS. It claims that the issue of continental
States’ outlying archipelagos was “shelved” during the negotiation of the Convention,
notwithstanding the claims made by the continental states.
55
The Society’s view coincides with several other writings that were published
before the release of the report.
In 2014, Zhang, the author of the corresponding chapter in this book as well as
one of the contributors of the Chinese Society of International Law’s study, takes the
same standpoint. In his paper of 2014, he had already claimed that the matter was not
regulated by the UNCLOS, and the legality of this type of straight baseline cannot be
resort to the convention.
56 He then argues that such a basis originates from customary
international law. He characterizes that straight baselines to offshore archipelagos
is sui generis and different from normal straight baselines and archipelagic straight
baselines.
57 While he acknowledges claims that the United States protested as excessive, he characterizes the country as a persistent objector, which cannot prevent the
development of international law.
In 2015, Kuen-chen Fu also supports this argument.
58 He recognizes “the principle
of archipelagic waters” to Paracels and other locales in the South China Sea while
delineating sea lanes to “allow foreign vessels and aircrafts to sail through and fly
over the internal waters created by its straight territorial sea baselines in the region.
59 ” In 2017, Han Yuxiao, criticizing the South China Sea Arbitration Award claims
that China should establish a “mid-ocean archipelago regime” in the region as soon as
possible.
60 He points out that “the issue concerning mid-ocean archipelagos of continental States is a legal vacuum left by the UNCLOS.”
61 It refers to the International
53 Ibid.
54 Ibid.
55 Ibid.
56 Zhang Hua, “The Legality of China’s Application of Straight Baselines to Mid-ocean
Archipelagos:New Perspectives from Customary International Law”. 31 Foreign Afffairs Review
129 (2014) (in Chinese).
57 Ibid.
58 Kuen-chen Fu, ‘Freedom of Navigation and the Chinese Straight Baselines in the South China
Sea’ in Myron H. Nordquist and others (eds), Freedom of Navigation and Globalization (Brill 2015)
190.
59 Ibid.
60 Han Yuxiao, ‘An Analysis on The Determination of The Nature of Some Islands Individually As
Requested by The Philippines In the South China Sea Arbitration’ (2017) 2017 China Oceans Law
Review 248.
61 Ibid.