146
Y. Ishii
a baseline surrounding a group of islands after 1982.
70 The size and the number
of the islands are diverse. Therefore, they are not sufficient to create a customary
international law norm.
8.4 Concluding Remarks
Based on these examinations above, this paper concludes that the concept of midocean archipelago has no place under international law.
It should be noted that the claim to support this concept has an implication towards
China’s maritime security policy regarding South China Sea in post-arbitration
award. China’s White Paper in 2016 claimed that China’s Nanhai Zhudao (the South
China Sea Islands) consist of Pratas Islands, Paracel Islands, Spratly Islands, and
the Macclesfield Bank area (i.e., Four Shas, namely, Dongsha, Xisha, Nansha, and
Zhongsha), which include, among others, islands, reefs, shoals and cays of various
numbers and sizes.”
71
While the territorial claim is nothing new, since it was provided in its domestic
law in 1992 (although there remain territorial disputes over these islands), recent
statements are distinct from the previous statement in a sense that the former explicitly
covers the maritime area surrounding these maritime features. While the maritime
entitlement generated from these islands does not necessarily match with the water
surrounded by Nine-Dash Line, it overlaps with each other in a significant manner.
The maritime areas generated from an island should be recognized only to the extent
that UNCLOS provides. China shall respect the judgment of the award on the legal
status of Spratly Islands as one of the state parties of the case. Therefore, the EEZ
and the continental shelf shall not be attached to the Spratly Islands, since none of
the maritime features satisfies the condition of Article 121(1).
One should not oversee the point that the state practices which may support
the straight baseline surrounding the mid-ocean archipelago, such as Faroe Islands
and Galapagos Islands, are quite different from the Spratlys, in terms of the size,
the status of each islands, and the whole size of the maritime area that is covered
by the group of islands. The claim made by Chinese scholars that China may be
entitled to draw straight baselines around Spratlys Islands lacks those geographical
examination in detail. It is therefore highly doubtful that China is entitled to claim a
baseline surrounding the outermost features of Spratly Islands.
70 Azores offshore archipelago (Portugal); Falkland Islands (United Kingdom); Turks and Caicos
Islands (United Kingdom); Malvinas (Argentina); Hainan Islands (China); Paracel Islands (China);
Guadeloupe (France); Loyalty Islands (France); Co Co—Preparis Islands (Myanmar); Senkaku
Islands (claimed by China). See Roach, 197.
71 The State Council, “Full Text: China Adheres to the Position of Settling Through Negotiation the
Relevant Disputes Between China and the Philippines in the South China Sea,” http://english.gov.cn/
state_council/ministries/2016/07/13/content_281475392503075.htm. The statement naturally used
Chinese names for identifying the islands.
Y. Ishii
a baseline surrounding a group of islands after 1982.
70 The size and the number
of the islands are diverse. Therefore, they are not sufficient to create a customary
international law norm.
8.4 Concluding Remarks
Based on these examinations above, this paper concludes that the concept of midocean archipelago has no place under international law.
It should be noted that the claim to support this concept has an implication towards
China’s maritime security policy regarding South China Sea in post-arbitration
award. China’s White Paper in 2016 claimed that China’s Nanhai Zhudao (the South
China Sea Islands) consist of Pratas Islands, Paracel Islands, Spratly Islands, and
the Macclesfield Bank area (i.e., Four Shas, namely, Dongsha, Xisha, Nansha, and
Zhongsha), which include, among others, islands, reefs, shoals and cays of various
numbers and sizes.”
71
While the territorial claim is nothing new, since it was provided in its domestic
law in 1992 (although there remain territorial disputes over these islands), recent
statements are distinct from the previous statement in a sense that the former explicitly
covers the maritime area surrounding these maritime features. While the maritime
entitlement generated from these islands does not necessarily match with the water
surrounded by Nine-Dash Line, it overlaps with each other in a significant manner.
The maritime areas generated from an island should be recognized only to the extent
that UNCLOS provides. China shall respect the judgment of the award on the legal
status of Spratly Islands as one of the state parties of the case. Therefore, the EEZ
and the continental shelf shall not be attached to the Spratly Islands, since none of
the maritime features satisfies the condition of Article 121(1).
One should not oversee the point that the state practices which may support
the straight baseline surrounding the mid-ocean archipelago, such as Faroe Islands
and Galapagos Islands, are quite different from the Spratlys, in terms of the size,
the status of each islands, and the whole size of the maritime area that is covered
by the group of islands. The claim made by Chinese scholars that China may be
entitled to draw straight baselines around Spratlys Islands lacks those geographical
examination in detail. It is therefore highly doubtful that China is entitled to claim a
baseline surrounding the outermost features of Spratly Islands.
70 Azores offshore archipelago (Portugal); Falkland Islands (United Kingdom); Turks and Caicos
Islands (United Kingdom); Malvinas (Argentina); Hainan Islands (China); Paracel Islands (China);
Guadeloupe (France); Loyalty Islands (France); Co Co—Preparis Islands (Myanmar); Senkaku
Islands (claimed by China). See Roach, 197.
71 The State Council, “Full Text: China Adheres to the Position of Settling Through Negotiation the
Relevant Disputes Between China and the Philippines in the South China Sea,” http://english.gov.cn/
state_council/ministries/2016/07/13/content_281475392503075.htm. The statement naturally used
Chinese names for identifying the islands.