8 A Critique Against the Concept of Mid-Ocean Archipelago
145
Court of Justice’s (ICJ) judgment of the Fisheries case of 1951 and Article 4 of the
Convention on the Territorial Sea and the Contiguous Zone, as they provide the legal
basis for continental States to adopt straight baselines to encircle their mid-ocean
archipelagos.
62 He asserts UNCLOS did not “deny the continental States of their right
to construct an archipelagic regime for their mid-ocean archipelagos.
63 ” Han then
states that the practice of continental states in enclosing their offshore archipelagos
with straight baselines “has become stable state practices
64 ” and “generally adopted
in the practice of States.
65 ” It should be also pointed out that ICJ’s Fisheries case is
irrelevant to the present situation since the case only address fringing islands along
the coast in its immediate vicinity.
66
The methodological problem of these arguments, that they do not necessarily
provide sufficient evidence of the existence of a customary international law norm,
i.e., general state practices with opinio juris, has been criticized.
67 The other thing
that should be noted that CSIL’s report uses the terms “general international law”
and “customary international law” interchangeably when making their claims.
68
Whether, to what extent and on what basis the customary international law has its
general character under international law requires an explanation.
69 It is a logical
flaw that the report does not distinguish the two separate conception.
The more fundamental question is whether UNCLOS allows states to create a sui
generis norm which departs from the Convention, and whether UNCLOS has the
superior status to the pre-UNCLOS norms, if any. Even if one concedes that there
existed such a norm, which is highly debatable, the question remains whether the
adoption of UNCLOS has trumped the then-existing customary international law.
The arguments examined above have not provided sufficiently persuasive answer to
this question. It is therefore the position of the present paper that such an existence
of the norm has not been proven.
In order to claim that a new and independent regime has emerged, one has not
only to argue against the comprehensiveness of the treaty but also to demonstrate
that a wide-spread and coherent state practices with opinio juris emerged after the
adoption of UNCLOS.
There are practices of six states available at the public domain, where the state,
which does not satisfy the geographical conditions provided in Article 47, drew
62 Ibid.
63 Ibid.
64 Ibid.
65 Ibid.
66 Fisheries (United Kingdom vs. Norway), Judgment of 18 December 1951, ICJ Reports 1951,
116.
67 J. Ashley Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?’
(2018)49 Ocean Development & International Law 176, 187.
68 Chinese Society of International Law, supra note 46, para. 6.
69 See for instance, Onuma Yasuaki, International Law in a Transcivilizational World (Cambridge
University Press 2017), 105.
145
Court of Justice’s (ICJ) judgment of the Fisheries case of 1951 and Article 4 of the
Convention on the Territorial Sea and the Contiguous Zone, as they provide the legal
basis for continental States to adopt straight baselines to encircle their mid-ocean
archipelagos.
62 He asserts UNCLOS did not “deny the continental States of their right
to construct an archipelagic regime for their mid-ocean archipelagos.
63 ” Han then
states that the practice of continental states in enclosing their offshore archipelagos
with straight baselines “has become stable state practices
64 ” and “generally adopted
in the practice of States.
65 ” It should be also pointed out that ICJ’s Fisheries case is
irrelevant to the present situation since the case only address fringing islands along
the coast in its immediate vicinity.
66
The methodological problem of these arguments, that they do not necessarily
provide sufficient evidence of the existence of a customary international law norm,
i.e., general state practices with opinio juris, has been criticized.
67 The other thing
that should be noted that CSIL’s report uses the terms “general international law”
and “customary international law” interchangeably when making their claims.
68
Whether, to what extent and on what basis the customary international law has its
general character under international law requires an explanation.
69 It is a logical
flaw that the report does not distinguish the two separate conception.
The more fundamental question is whether UNCLOS allows states to create a sui
generis norm which departs from the Convention, and whether UNCLOS has the
superior status to the pre-UNCLOS norms, if any. Even if one concedes that there
existed such a norm, which is highly debatable, the question remains whether the
adoption of UNCLOS has trumped the then-existing customary international law.
The arguments examined above have not provided sufficiently persuasive answer to
this question. It is therefore the position of the present paper that such an existence
of the norm has not been proven.
In order to claim that a new and independent regime has emerged, one has not
only to argue against the comprehensiveness of the treaty but also to demonstrate
that a wide-spread and coherent state practices with opinio juris emerged after the
adoption of UNCLOS.
There are practices of six states available at the public domain, where the state,
which does not satisfy the geographical conditions provided in Article 47, drew
62 Ibid.
63 Ibid.
64 Ibid.
65 Ibid.
66 Fisheries (United Kingdom vs. Norway), Judgment of 18 December 1951, ICJ Reports 1951,
116.
67 J. Ashley Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?’
(2018)49 Ocean Development & International Law 176, 187.
68 Chinese Society of International Law, supra note 46, para. 6.
69 See for instance, Onuma Yasuaki, International Law in a Transcivilizational World (Cambridge
University Press 2017), 105.