A Preliminary Analysis of the Application of Archipelagic Regime and the Delimitation of the South China Sea

Jiang Li,Zhang Jie

A Preliminary Analysis of the Application of Archipelagic Regime and the Delimitation of the South China Sea

Jiang Li*,Zhang Jie**

Part IV of the United Nations Convention on the Law of the Sea provides that the archipelagic regime applies to“archipelagic states”.However, it is not clearly provided whether the archipelagic regime applies to the mid-ocean archipelagos of continental countries.The recent legislative practice of the continental countries with mid-ocean archipelagos represented by Ecuador and Denmark is that they regard the archipelagos as a single unit and draw straight baselines by way of national legislation.China is also a continental country with mid-ocean archipelagos.There are four archipelagos including the Dongsha, Xisha,Zhongsha and Nansha Islands in the South China Sea.The Chinese government has not yet announced baselines and base-points for these islands except for the Xisha Islands.This article tries to analyze whether continental countries can apply the archipelagic regime based on the history of the Third United Nations Conference on the Law of the Sea,and how to draw the baselines for the South China Sea Islands based on the practices of other continental countries.

archipelagic regime;continental countries;mid-ocean archipelagos;the South China Sea Islands

The archipelagic theory was established in the Third United Nations Conference on the Law of the Sea(hereinafter referred to as“the Third Conference on the Law of the Sea”or“the Third Conference”),and eventually the archipe-lagic regime is provided in general in the United Nations Convention on Law of the Sea(hereinafter referred to as the Convention or UNCLOS)in the form of“Archipelagic States”.However,the international community has been continually debating on the question whether the archipelagic regime can be applied to the mid-ocean archipelagos of continental countries since the initiation of the archipelagic theory.Although no final conclusion has been made with regard to this issue,some continental countries have put it into practice in the delimitation of the baselines for their archipelagos.Special attention should be paid to this recent practice.The islands in the South China Sea have belonged to China since ancient times.However,except for the Xisha Islands,the baselines and base-points of the territorial waters for the other three Islands have not yet been published.How to maintain China’s maritime interests and rights fully according to the current provisions of international law but without prejudice to international navigation system,which is a difficult problem faced by China in its practice of maritime delimitation.

Ⅰ.The Differences on Archipelagic Regime in the Third Conference on the Law of the Sea

The concept of the archipelagic state was not initiated and widely discussed until the Third Conference held from 1973 to 1982.With eleven sessions of discussion,the Convention was finally adopted in 1982.Due to the tireless efforts of third world countries,the concept of the archipelagic state was eventually accepted by the international community and adopted successfully by the Convention.The archipelago issue was mainly discussed in the second,third and fourth sessions that resulted in some documents that were critical for the final archipelagic regime.The documents covered the Informal Single Negotiating Text(1975),the Revised Single Negotiating Text(1976),and the Informal Composite Negotiating Text(1977).The positions of archipelagic states were basically supported in the Third Conference and included in the fourth part of the Convention.

The archipelagic principle or archipelagic theory was first initiated by the archipelagic states group composed of Fiji,Indonesia,Mauritius and the Philippines at the conference of the Preparatory Committee of the Third Conference in 1973.The four archipelagic states proposed Suggestions of Archipelagic Principle to the Seabed Commission which stated that:(1)The archipelagic State may draw straight archipelagic baselines joining the outermost points ofthe outermost islands and dry reefs of the archipelago;(2)the waters inside the baseline,regardless of their depth or the distance from the coast,the sea-bed, subsoil,the air space over the waters and its resources belong to the sovereign jurisdiction;(3)Archipelagic States should,in accordance with domestic law, and taking the existing rules of international law into account,allow foreign ships to enjoy the right of innocent passage through archipelagic waters.①Office for Ocean Affairs and the Law of the Sea,Archipelagic States:Legislative History of PartⅣof the United Nations Convention on the Law of the Sea,in:United Nations, The Law of the Sea,New York:U.N.Publication,1990,p.7.Later on,the four countries turned these principles into specific articles.They proposed Draft Articles Relating to Archipelagic States to systemically cover the concept of the archipelagic state,the delimitation of archipelagic straight baselines,the legal status of archipelagic waters and the innocent passage through archipelagic waters.②Office for Ocean Affairs and the Law of the Sea,Archipelagic States:Legislative History of PartⅣof the United Nations Convention on the Law of the Sea,in:United Nations, The Law of the Sea,New York:U.N.Publication,1990,p.9.As to the application scope of the archipelagic regime, Article 1,Paragraph 1 of the Draft Articles explicitly states that“This provision applies only to archipelagic States”.

The Draft Articles Relating to Archipelagic States was formally submitted in the second session in 1974.The contents of the Draft Articles were basically the same as the one submitted in 1973 representing the interests of the archipelagic states.Nine continental countries with mid-ocean archipelagos drew up a Working Paper,trying to revise the Draft Articles.The most obvious change was to eliminate the article“This provision applies only to archipelagic States”.The purpose was to extend the archipelagic regime to the continental countries with mid-ocean archipelagos.This document represented the position of those continental countries.

These two diametrically opposite documents on a proposed archipelago regime led to debates between the archipelagic states and the continental countries.The archipelagic states,such as the Philippines and Indonesia,opposed the extension of the archipelagic regime to mid-ocean archipelagos owned by continental countries.They held that only the states constituted wholly by archipelagos could apply the archipelagic principles in the delimitation of the territorial sea or exclusive economic zone.However,the continental countries that owned mid-ocean archipelagos far from the mainland such as India,Ecuador and Portugal claimed that the archipelagic regime should apply to all archipelagosbecause the archipelagic states and the archipelagos constituting part of the coastal states were closely related and thus should be solved together.①Lihai Zhao,A Stud y on the Issues relating to the Law of the Sea,Beijing:Peking University Press,1996,p.32.Because most countries attending the Third Conference opposed extending the archipelagic principles to the mid-ocean archipelagos,the continental countries’concerns finally died down in the debate about the application scope of the archipelagic regime.As a result,their claims in Working Paper were not recorded in the Informal Single Negotiating Text for further discussion.

In the third session in 1975,all documents and draft articles discussed in the second session were combined into a single text,which formed the Informal Single Negotiating Text.The archipelagic issue was included in the third part of the Text with two separate sections entitled“Archipelagic States”and“Midocean archipelagos belonging to continental countries”.The Negotiating Text was very vague as to whether the archipelagic regime applied to the mid-ocean archipelagos.Article 131 provided that“the provisions of Section I(The Archipelagic States)shall be without prejudice to the status of the mid-ocean archipelagos that form integral part of territories of continental countries”.

In the fourth session in 1976,The Revised Single Negotiating Text was put forward on the basis of the revision of the Informal Single Negotiating Text.This new Text entitled Chapter VII with“Archipelagic States”and deleted the Section of“Mid-ocean archipelagos belonging to continental countries”in the previous Text.②Gujie Yuan,Theories and Practices on International Maritime Delimitatio n,Beijing:China Law Press,2001,pp.238～240.

In the sixth session in 1977,the above four texts were combined into the Informal Composite Negotiating Text which became the blueprint of the draft of the Convention in 1982.Part IV of the Convention is about archipelagic states.

In the 11thsession in 1982,the Draft Articles relating to archipelagic states submitted by the archipelagic states group were basically accepted,and the special provisions of archipelagic regime for archipelagic states were stipulated in Part IV of the Convention.However,the Convention does not give clear provision regarding the mid-ocean archipelagos of continental countries.

From the debate about the application scope of the archipelagic regime through the Third Conference,it is clear that archipelagic states strongly opposed the expansion of the application scope,that the discussion on the mid-o-cean archipelagos did not receive the same attention as archipelagic states,and that the continental countries did not claim their rights on the mid-ocean archipelagos as strongly as the archipelagic states did in the Conference on the Law of the Sea.①Gujie Yuan,Theoriesand Practices on International Maritime Delimitation,Beijing:China Law Press,2001,pp.238～240.Consequently,the archipelagic regime was excluded from applying to the mid-ocean archipelagos.

Ⅱ.Whether the archipelagic regime can be applied to the mid-ocean archipelagos of continental countries

Neither the legislation process nor the specific provisions of the Convention gave a clear indication as to the legal status of the mid-ocean archipelagos of continental countries.Objectively speaking,the legal status of the mid-ocean archipelagos is not clearly defined in the Convention.To some extent,this is a blank area in the Convention.②Haiwen Zhang,Commentaries on the United Nations Convention on the Law of the Sea, Beijing:China Ocean Press,2006,p.83.Therefore,since the proposal of the archipelagic regime,a long-running dispute has continued in the international community on the issue whether the archipelagic regime could be applied to the mid-ocean archipelagos.So far,no final conclusion on this issue has been made in the circle of the international maritime law.

A.The views of scholars on whether the archipelagic regime can be applied to the mid-ocean archipelagos

1.Views advocating that the archipelagic regime can be applied to the mid-ocean archipelagos

Some Chinese scholars,represented by Professor Degong Chen and Professor Jianjun Gao argue that the fact that the archipelagic baseline regime is provided in PartⅣ“Archipelagic States”does not necessarily mean that it applies only to archipelagic states,but not to the mid-ocean archipelagos belonging to certain countries.③Jianjun Gao,China and International Law of the Sea,Beijing:China Ocean Press,2004, p.138.

Some foreign scholars,represented by R.R.Churchill and A.V.Lowe,who are British experts on delimitation,also point out that“This limit in the Convention(i.e.,the archipelagic regime applies only to archipelagic states)seems neither necessary nor reasonable.As long as other countries recognize the base-lines delimited for the mid-ocean archipelagos belonging to continental countries,these practices should be deemed as effective and legal.”①R.R.Churchill and A.V.Lowe,The Law of the Sea,3 rd ed.,Manchester:Manchester U-niversity Press,1999,pp.120～121.

The main reasons for claiming that the archipelagic regime can be applied to the mid-ocean archipelagos of continental countries are as follows:

First,the reasons for the archipelagic regime proposed by the archipelagic states are equally effective for the mid-ocean archipelagos of continental countries,because the problems faced by these two types of archipelagos are the same and therefore the solution should not be different.First of all,from a political perspective,the archipelagic regime aims to maintain the national political integration and the integrity of national sovereignty.So similarly,the continental countries’right to exercise sovereignty over their mid-ocean archipelagos should not be neglected just because those archipelagos are far away from the mainland territory.Secondly,from an economic perspective,for the archipelagic states,the resources in the waters among the islands in the archipelago are the basis on which the local populations rely on for existence.Similarly,for the continental countries,their inhabitants in the mid-ocean archipelagos also rely on the exploitation of archipelagic resources,though they could have the mainland as their supply area.Thirdly,from a security perspective,if the traditional islands regime was adopted,it would result in large high seas between the national continental territory and the mid-ocean archipelagos.According to the Convention,foreign ships and aircrafts over the high seas have freedom of navigation and overflight,which will lead to a hidden peril for national maritime safety and security.This is equally important both to the archipelagic states and the continental countries.②Yi Huang,Archipelagic Theory,Fu Jen Law Journal,No.3,1984,p.27.

Second,if the archipelagic regime does not apply to the mid-ocean archipelagos,unfairness will be created in international law.Being archipelagos,if they form an archipelagic state,then they are endowed with the sovereignty that“extends to the air space over the archipelagic waters,as well as to their bed and subsoil,and the resources contained therein”.③Article 49(2)of United Nations Convention on the Law of the Sea,Beijing:China Ocean Press,1996,p.23.However,if they only form part of a continental country,the country can only exercise sovereignty over each island therein respectively,without the same sovereignty as that of the archipelagic state.No doubt that it will lead to separation of sovereignty or makethe islands far away from the mainland second-class territory since the two kinds of archipelagos are treated differently.Moreover,such a distinction exaggerates certain geographical inequalities,which is tantamount to a punishment for those countries.

Third,although the Convention provides the archipelagic baseline regime in Part IV“Archipelagic States”,it does not mean that the archipelagic regime applies only to archipelagic states and not to mid-ocean archipelagos.At least the Convention does not explicitly state that the archipelagic regime does not apply to the mid-ocean archipelagos.As long as this practice is legal and effective according to customary international law,and recognized by other countries,it should be considered that the archipelagic regime can be applied to the mid-ocean archipelagos.

2.Views claiming that the archipelagic regime cannot apply to the mid-ocean archipelagos of continental countries

For the issue that whether the archipelagic regime can be applied to the archipelagos in the South China Sea,some Chinese experts,represented by Professor Lihai Zhao and Professor Gujie Yuan,have different views.They hold that it won’t work to completely apply the provisions about archipelago in the Convention to the islands in the South China Sea.According to Part IV of the Convention,the archipelagic regime only applies to archipelagic states.①Lihai Zhao,Some Legal Issues on the South China Sea Islands,Legal Regime and Social Development,No.4,1995,p.57.

Prof.Park Choon-Ho,a famous expert of maritime law from South Korea,represents other experts,who also believe that only the country constituted wholly by archipelagos can be known as an archipelagic state,and only that country can apply the archipelagic regime.②Choon-Ho Park,Limits in the Seas,No.117,Straight Baseline Claim,China,9 July 1996,p.16.

Thus it can be seen that,the leading and also the simplest reason claiming that the archipelagic regime cannot be applied to the mid-ocean archipelagos is that the archipelagic regime established by the Convention can be applied only to the archipelagic states.Since the continental countries including China do not belong to the archipelagic states,they cannot apply the archipelagic regime which is designed exclusively for the archipelagic states to delimit their baselines.

B.The baseline regime that applies to the mid-ocean archipelagos of the continental countries

The Convention has provisions on the legal status of coastal islands of the continental countries,while PartⅣof the Convention(“Archipelagic States”) provides that the archipelagic regime applies to archipelagic states.However, the Convention has no provision on the mid-ocean archipelagos.Objectively speaking,the Convention does not successfully resolve the legal status of the mid-ocean archipelagos.

The authors are of the opinion that mid-ocean archipelagos cannot apply the archipelagic regime which was designed specifically for the archipelago states.However,the continental countries can regard the mid-ocean archipelagos as a single unit and thus apply the straight baselines regime.The reasons are as follows:

First,as far as PartⅣof the 1982 Convention is concerned,the archipelagic regime is only applicable to the archipelagic states but not to the archipelagos far from the mainland.

As mentioned above,there were completely different opinions as to the application scope of the archipelagic principles in the Third Conference on the Law of the Sea.The continental countries with mid-ocean archipelagos tried to assert that the archipelagic principles apply equally to the continental countries,a position which was strongly opposed by the archipelagic states group. The final result is that the mid-ocean archipelagos of the continental countries are not mentioned in Part IV of the Convention.The Convention intentionally avoids mentioning the mid-ocean archipelagos;though India,Greece,Portugal, Spain and Colombia insisted on the application of the archipelagic regime while most countries opposed it.①Weinong Gao,International Law of the Sea and Maritime Jurisdiction in Pacific O-cean,Guangzhou:Senior Education Press,1999,p.32.It cannot be necessarily deduced that the archipelagic regime can be applied to the mid-ocean archipelagos just because the Convention does not provide otherwise.This application issue was formally raised and discussed at the Third Conference without agreement.The application of the archipelagic regime to the mid-ocean archipelagos of the continental countries has been denied because of opposition from the archipelagic states.Therefore,the authors believe that the correct deduction is that the archipelagic regime should only apply to the archipelagic states,if put into the context of the formulating background of the Convention.

As pointed out by O.P.Sharma,an expert of the law of the sea from the Indian Navy,the Convention made the concept of the archipelagic states sacred.Although the Indian delegation at the Conference urged that there was no difference in the status between the individual archipelagic states and the archipelagos as part of the mainland territories,India could not persuade the Conference to recognize that coastal islands of the continental countries,such as the Andaman and Nicobar Islands,have the same legal status as an archipelagic State.①O.P.Sharma,India and UN Convention on the Law of the Sea,Ocean Development and International Law,vol.26,No.4,1995,pp.391～412.

Secondly,according to the relationship between the straight baselines and the archipelagic baselines,the fact that the archipelagic regime does not apply to the mid-ocean archipelagos does not exclude the continental countries to consider the archipelagos as a whole and delimit their straight baselines.

The legitimacy of the straight baselines has been recognized in the Judgment of the United Kingdom-Norway Fisheries case in 1951.However,the straight baselines are only applicable to the coastal islands.If the archipelagic states would apply it by analogy,many problems would be created.That is why it was necessary to establish an archipelagic baseline regime which is not the same as the straight baseline regime.

現(xiàn)今流行一句話，“這是個看臉的社會”，并為此專門誕生了新的詞匯“顏值”，以此來評價和劃分人的不同。按說這已經(jīng)不是一天兩天的現(xiàn)象了，各種方興未艾的選美大賽，顏值擔(dān)當(dāng)?shù)拿餍撬鶑氖碌难菟噴蕵返谋├袠I(yè)，乃至于招工用人明確標(biāo)出的要求“形象好、氣質(zhì)佳”，更不消說找對象的熱門標(biāo)準(zhǔn)“高富帥”或“白富美”。對于顏值的過分迷戀和執(zhí)著，漸成為整個社會的嗜好。這種對人外表要求的價值觀波及開來，流行得那么自然自樂，似乎有以表象掩蓋實質(zhì)之嫌，又有以小搏大之虞。

The Convention establishes the baseline regime with basic types of normal baseline and straight baselines.Therefore,to delineate the baseline of a territorial sea,the coastal state should first consider whether the normal baseline can be used.In special circumstances,the straight baselines can be used,as provided in Article 7 of the Convention that“in localities where the coastline is deeply indented and cut into,or if there is a fringe of islands along the coast in its immediate vicinity,the method of straight baselines joining appropriate points may be employed in drawing the baseline”.For archipelagic countries,Article 47 of the Convention provides that“an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago”.From the above types of baseline and their applicable objects,we can see the Convention has the following rules for drawing baselines:the normal baseline should be used in normal circumstances,while in some special circumstances the straight baselines with specific conditions and the archipelagic baselines for specific objects can be used.Therefore,we can conclude that the archipelagic states may apply the archipelagic regime to drawarchipelagic baselines,while other archipelagos may apply the common baseline regime,i.e.normal or straight.

Although the Convention limits the application scope of the archipelagic regime to the archipelagic states,it does not mean that the Convention denies the claim that the continental country may draw straight baselines for their mid-ocean archipelagos as a whole.This could be regarded as a delimitation method and skill.The question whether the archipelagos constitute a single unit as a matter of law has been posed by international practice since early 19th century.For example,the King of the Hawaiian Islands declared in a neutral statement on May 16,1853 that the declaration of neutrality should be respected within his jurisdiction,including all the channels and islands between them. In the subsequent years,kings of indigenous people in Tonga and Fiji made similar statements.In the delimitation of the Adelin Islands on October 20, 1921,the archipelago and its surrounding waters were regarded as a whole unit.①Lucchini and Voeckel,Le droit international de la mer,Paris:Pedone,1990,Tome I,p. 359.Quoted from Haiwen Zhang,Commentaries on the United Nations Convention on the Law of the Sea,Beijing:China Ocean Press,2006,p.84.Both Cuba’s domestic legislation in 1934 and 1942 and Ireland’s Fisheries Act in 1952 considered archipelagos as a single unit de jure.②Haiwen Zhang,Commentaries on the United Nations Convention on the Law of the Sea, Beijing:China Ocean Press,2006,p.84.In addition,a similar concept was also used in theories of international law in the 20th century.Mr.Alvarez,a Chilean scholar,recommended to the International Law Association in 1924 that archipelagos should be seen in their political and economic entirety,and should be considered as a whole when delimiting their territorial waters.The island that is the furthest away from the center island should be treated as a base-point to draw territorial waters.Subsequently,on the basis of the development of the overall concept of an archipelago by the International Law Association,conferences for the codification of international law on the sea,International Court of Justice,and the International Law Commission,the concept of an“archipelago”was clearly defined in the archipelagic regime established in the Convention.It is thus clear that,from the geographical facts and legal point of view,archipelagos as an overall legal concept has been generally recognized by theory of international law and state practice.Since archipelagos can form an overall legal concept,the concept of an archipelago should include the mid-ocean the archipelagos of the continental countries.Although the Convention does not mention this,it does not mean that the Convention deniedthe concept,or the concept does not apply to the mid-ocean archipelagos.

In fact,broadly speaking,the archipelagic baselines also belong to straight baselines.However,to apply the archipelagic baselines to the archipelagic states,various specific requirements should be met,including the choice of base-points,the ratio of water to land,baseline length and so on.All these restrictive requirements do not exist in the straight baselines.This makes the straight archipelagic baselines an independent baseline.The legal effects for the general straight baselines and archipelagic baselines are different,i.e.the water area closed by the general straight baselines is internal waters,while the area closed by the archipelagic straight baselines is archipelagic waters.

For the issue how to delimitate the baseline of the mid-ocean archipelagos, Mr.Amnesia Singe,who was chairman of the Third Conference on the Law of the Sea,suggested in his book“Archipelagic Issue in the Law of the Sea”that some of the general principles raised in the United Kingdom-Norway Fisheries Case could be used too.First,the impact of the economic interests on the determining of the baseline should be considered.The impact is decided by long-term use and actual needs.Second,the relationship between land and sea should be considered in deciding whether or not to adopt the straight baselines.Third,the use of straight baselines should be based on the general shape of the coast. Last,although there is no specific provision on the length of baseline,its length should be reasonable.①Degong Chen,Modern International Law of the Sea,Beijing:China Ocean Press,2009,p. 105.

Thirdly,matters that were not regulated by the Convention should be determined by general rules or custom formed by state practice.

The Convention has no explicit provision on whether the coastal continental countries have the right to delimitate straight baselines for the mid-ocean archipelagos.The Preamble of Convention states that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.Therefore,the main factor that determines the legal status of the mid-ocean archipelagos of the continental countries is customary international law.Thus,some scholars argue that,according to the customary international law,if the straight baselines used to delimit the archipelagos are consistently opposed by other states,the practice of the coastal continental countries is not legal.But,if other states are acquiescent to or definitely accept this practice,it should be regarded as consistent with international law.The customaryinternational law that determines the legal status of the mid-ocean archipelagos of the continental countries should be found in and proved by international practice.International practices that reflect customary international law include the decisions of International Court of Justice,arbitral awards of international arbitration,national unilateral legislative practice and the general law principles recognized in some of the provisions of the Convention.

The Informal Single Negotiating Text in 1975 states that the regulations for the archipelagic states shall not affect the legal status of the mid-ocean archipelagos.It implied recognition of the practice of the mid-ocean archipelagos by the continental countries.Although this part was deleted in the later text,it does not affect the claim that the continental countries continue to delimitate the Mid-ocean archipelagos as a whole.Through analysis of the development process of the archipelagic theory,both the archipelagic states and the continental countries with mid-ocean archipelagos have advocated archipelagic principles.The difference is that the idea of the archipelagic states was approved in the form of a treaty,while the idea of the continental countries was intentionally neglected.As a result,which baseline regime can be applied to the mid-ocean archipelagos has to mainly rely on the practice of states.Although the international practices consider delimitation as an international issue,the real will of the coastal state,as expressed in its domestic law,should not be neglected,as long as this practice is recognized or not strongly objected to by other countries.Before and after the establishment of the archipelagic regime,some continental countries have adopted the straight baseline regime to draw the baseline for the mid-ocean archipelagos as a whole unit.No strong opposition by other countries was made.This practice can be used as precedent.

Ⅲ.Whether the archipelagic regime can be applied to the South China Sea Islands

A.The Practice Relating to the Mid-ocean Archipelagos of the Continental Countries

According to the Convention,the archipelagic regime does not apply to the mid-ocean archipelagos when drawing the territorial sea baseline that is used to measure the breadth of the territorial sea.What could be applied is the normal baseline regime(the coastal low-water line on the large-scale charts officially recognized by the coastal state)and in some special circumstances,the straight baseline regime(i.e.if the islands are in the atoll,or the islands surrounded by the submerged reef,the territorial sea baseline is the low-water line to the sea of the reef showed by some marks on charts officially recognized by the coastal countries).However,some countries which claimed that the mid-ocean archipelagos should apply archipelagic principles continued to insist on their original position,and put it into practice.①Hiran W.Jayewardene,The Regime of Islands in International law,Berlin:Springer, 1990,p.240.

In international practice,many continental countries have promulgated domestic decrees in which the straight baseline is used as the territorial sea baseline for coastal or mid-ocean archipelagos.And the waters inside the baselines form part of the internal waters,rather than archipelagic waters.This legislative practice should receive great concern.Some examples include the Galapagos Islands of Ecuador,the Faroe Islands of Denmark,the Canary Islands ofSpain,Azores Islands and Madelyn of Portugal and Svalbard Islands of Norway.①For example,the Supreme Decree No.959-A Prescribing Straight Baselines for the Measurement of the Territorial Sea released by Ecuador on 28 June 1971,the Decree No.598 of 21 December 1976 on The Fishing Territory of the Faroe Islands and the Ordinance No. 599 of 21 December 1976 on the Delimitation of the Territorial Sea around the Faroe Islands released by Denmark,the Royal Decree No.2510/1997 of 5 August 1977 and Act No.15/1978 on the Economic Zone of 20 February 1978 released by Spain,the Act No. 495/85 of 29 November 1985 released by Portugal,and the Regulation relating to the Limits of the Norwegian territorial sea around Svalbard(Royal Decree of 1,June 2002)released by Norway.All of these practices of the mid-ocean archipelagos of the continental countries,in the form of domestic legislation,provide that the straight baseline regime is used.The baselines are delimited by a straight baseline method for the whole archipelago,and the straight baselines that are established by this method are around the outer archipelagos.It clearly affirmed that the waters inside the baselines were internal waters,even providing the strict passage regime within the internal waters.②For some reason,King of Norway released a new regulation on territorial sea and contiguous zone on 27 June 2003.This regulation revised its baselines of territorial sea.It did not draw straight archipelagic baselines for Svalbard but draw its territorial baselines along mainland,Jan Mayen and Svalbard according to coastal low-tide line.

According to existing data,these continental countries do not announce the waters around their mid-ocean archipelagos as archipelagic waters,but draw the territorial sea baselines by the straight baseline method jointing the outmost appropriate points of the outmost islands.The waters inside the baselines are considered as internal waters.Such legislative action has not been clearly oppugned by other countries.③J.R.V.Preseott,Maritime Jurisdiction in Southeast Asia:A Commentary and Map,Research Report No.2,January 1981,East-west Environment and Policy Institute,Printed in USA,p.3.Quoted from Haiwen Zhang,Legal Regime ap plied to the South China Sea Islands,Doctor Paper of Beijing University,1995,pp.13～14.Although the practices of these countries on their mid-ocean archipelagos are still not enough to constitute a general rule and principle of international law,at least they represent a trend and direction of how to draw territorial sea baselines for the mid-ocean archipelagos.From the development process of the archipelagic principles,the different rules and regulations of the archipelagic states are formed by a large number of national practices.So,in order to actually establish the baseline regime of the mid-ocean archipelagos,it is necessary for the continental countries and the international community to make a long-term effort.In any case,these precedents can be used as reference for Chinese government.China can also consider applying thestraight baselines to the groups of islands in the South China Sea,instead of declaring them using the archipelagic baselines,and regard the waters inside the baselines as internal waters.①Lihai Zhao,A Study on the Issues of the Law of the Sea,Beijing:Peking University Press,1996,pp.32～33.

B.Chinese Regulations and Practices on the South China Sea Islands

The South China Sea is a semi-enclosed area where the South China Sea Islands are located.The Islands’furthest extent to the east is at the Huangyan Island located at 117°45′E,to the west at the Wan-an Beach at 109°55′E,to the south at the James Shoal close to 4°N,to the north at the Beiwei Beach at 21°8′N.The distance from the east to the west is more than 900 kilometers; from the north to the south is more than 1800 km.②Jinzhi Lin,China’s South Territory-the South China Sea Islands,Shanghai:People’s Press,1998,p.1.

According to its geographical location,the South China Sea Islands can be divided into four major groups of islands:The Dongsha Islands,the Xisha Islands,the Zhongsha Islands and the Nansha Islands.The South China Sea Islands are mostly composed of small islands,banks,submerged reefs and shoals.There are rich resources with a high economic value on the islands or in the waters.They play a decisive role in marine traffic and strategy for China. 1.Chinese provisions of the status of the South China Sea Islands

Can China apply the straight baselines method to delimit its territorial waters of the South China Sea Islands?What is the legal status of the adjacent waters around the South China Sea Islands in international law?These questions should be answered from the policy and practice of Chinese law of the sea.

In the Declaration of the Government of the People’s Republic of China on the China’s Territorial Sea(September 4th,1958),it is stated that:1.the breadth of the territorial sea of the People’s Republic of China shall be twelve nautical sea miles.This provision applies to all territories of the People’s Republic of China,including the Chinese mainland and its coastal islands,as well as Taiwan and its surrounding islands,the Penghu Islands,the Dongsha Islands,the Xisha Islands,the Zhongsha Islands,the Nansha Islands and all other islands belonging to China which are separated from the mainland and its coastal islands by the high seas.③Collection of the Laws and Regulations of the Sea of the People’s Republic of China, Beijing:China Ocean Press,1998,p.1.The principle for drawing the baseline of theChinese mainland is that,China’s territorial sea along the mainland and its coastal islands take as its baseline the line composed of the straight lines connecting base-points on the mainland coast and on the outermost of the coastal islands;the water area extending twelve nautical miles outward from this baseline is China’s territorial sea.The Declaration also stated that the above principles likewise apply to the Dongsha Islands,the Xisha Islands,the Zhongsha Islands,the Nansha Islands and all other islands belonging to China.

It is worth pointing out that the above Declaration only stipulates that the straight baselines apply to the four archipelagos in the South China Sea.However,there is no specific explanation on how to draw the straight baselines for every archipelago.Can we treat every archipelago as a whole and connect appropriate base-points selected from all the outer reefs to draw uniform territorial waters?Or treat all islands that consist of an archipelago as separated units and draw their respective territorial waters?After the above Declaration,the Chinese government did not have further legislation for the territorial sea or any proclamation determining the base-points or baselines.

The above Declaration did not indicate the specific methods for how to draw the baselines for the four archipelagos in the South China Sea.However, Chinese Working Paper:the Marine Area under the Jurisdiction of the State submitted to the Seabed Committee by Chinese government on July 14th,1973 gave some clear hints.Article 1 Paragraph(6)of the Working Paper states that archipelagos or group of islands close to each other can be regarded as a whole to delimit their territorial sea.①See Article 1(6)of Chinese Working Paper:Marine Area under the Jurisdiction of the State,U.N.Doc.A.AC.138/SC.Ⅱ/L.34.p.2.It is clear that,the Chinese attitude toward the archipelagos in the South China Sea is that they should be considered as a whole and their territorial seas should be delimited with straight baselines.

Article 2 of Law of the People’s Republic of China on the Territorial Sea and the Contiguous Zone(February 25th,1992)stipulates that“The land territory of the People’s Republic of China includes the mainland of the People’s Republic of China and its coastal islands;Taiwan and all islands appertaining thereto including the Diaoyu Islands;the Penghu Islands,the Dongsha Islands, the Xisha Islands,the Zhongsha Islands,the Nansha Islands and all other islands belonging to China”.This Law provides the straight baselines very generally.It stipulates that“the breadth of the territorial sea of the People’s Republic of China is twelve nautical miles,measured from the baselines of the ter-ritorial sea”;that“the method of straight baselines composed of all the straight lines jointing the adjacent base points shall be employed in drawing the baselines of the territorial sea of the People’s Republic of China”;and that“the waters on the landward side of the baselines of the territorial sea of the People’s Republic of China constitute the internal waters of the People’s Republic of China”.

Subsequently,China issued the Declaration of the Government of the People’s Republic of China on the Baselines of the Territorial Sea of the People’s Republic of China on May 15th,1996.In this Declaration,the government announced the territorial baselines of part of the mainland and Xisha Islands.

2.Practices and Suggestions on the Islands in the South China Sea

As mentioned above,Since China is not an archipelagic state,it can not draw archipelagic baselines for the South China Sea Islands.However,China can establish normal baselines and the straight baselines on some or all of the islands in the South China Sea(such as the Nansha Islands).①Gujie Yuan,Theories and Practices on International Maritime Delimitation,Beijing:Law Press,2001,pp.238～240.According to China’s existing legal practice,China did not apply the archipelagic regime to delimit the South China Sea Islands,rather,it intends to apply the straight baselines that consider the Dongsha Islands,the Xisha Islands,the Zhongsha Island,and the Nansha Islands as a whole,respectively.Considering the different natural and geographical conditions,the selection of base-points and baselines for each archipelago should be conducted separately as follows:

The Xisha Islands has the most islands that are above water at high tide in the South China Sea.It has twenty-two islands and seven shoals,with a total area of eight square kilometers.The Xisha Islands can be divided into the Xuande Islands and the Yongle Islands according to their geographical situation.Some scholars therefore claim that the two islands should delimit their territorial sea separately.②Keyuan Zou,Chinese Practices on the Law of the Sea,Journal of Beijing University,No. 3,1987,p.76.Whereas because of the close relationship between the two islands in geography,and their significant importance to security and economic interests of China,the boundary of the territorial sea for the Xisha Islands shall be delimited as a whole.In China’s Declaration on the Baselines of the Territorial Sea,the baselines of territorial sea of Xisha islands were drawn by straight baselines.China selected twenty-eight baselines around eightislands of the Xisha Islands and drew straight baselines by connecting these points sequentially.The waters on the landward side of the baselines of the territorial sea constitute internal waters of the People’s Republic of China,rather than archipelagic waters.In other words,the waters on the landward side of the baselines of the territorial sea of Xisha Islands apply the internal water regime rather than the archipelagic regime.In addition,the Declaration stipulates that China will announce the remaining baselines at another time.So far,no more base-points and baselines of other islands except for Xisha Islands in the South China Sea have been published.

The Dongsha Islands consist of one island(Pratas Island),one reef(Pratas Reef)and two banks(North Vereker Bank and South Vereker Bank).A-mong them,Pratas Island is the only coral island that is above water.It is the island that is“a naturally formed area of land,surrounded by water,which is above water at high tide”.The Pratas Reef is a submerged reef that is partially above water at low tide,while the North Vereker Bank and the South Vereker Bank submerge under the sea all the year round.An island with the structure of one island-one reef-two banks is hard to identify as a real archipelago in respect to geographical factors.

The main body of the Zhongsha Islands is Zhongsha Atoll,which is underneath the water.It is not a true archipelago but instead reefs.Traditionally, Huangyan Island(it is also called Scarborough Reef)which is 160 nautical miles from the southeast of the Zhongsha Islands is considered as part of the Zhongsha Islands.Like the Dongsha Islands,the Zhongsha Islands consist of one island and a hidden shoal that can hardly be considered as an archipelagic entity according to Article 46 of the Convention.Therefore,it is hard to apply the straight baselines regime to the whole islands.However,the Scarborough Reef and the Pratas Island can apply straight baselines to draw their territorial seas separately.

The Nansha Islands are a complex case since they have a number of islands,most of which are islets.If the Nansha Islands are considered as a whole to apply the straight baselines to draw its territorial sea,the territorial sea would be very broad.This would be hard to do.If each group of reefs is separately considered as a whole to draw its territorial sea,it would be difficult to select appropriate base-points.Comparing these two methods,it seems more reasonable to split the islands and apply different rules.For the group of reefs that are close to each other and can be considered as a whole,the straight baselines can be applied;for those islands among the reefs that are not appropriateto be considered as a whole and some bigger islands,they can have their own separate baselines;for some isolated islands and reefs,whether to draw marine areas other than territorial sea and contiguous zone depends on their natural condition.

Nevertheless,the final purpose of studying whether the archipelagic regime applies to mid-ocean archipelagos and how to draw baselines for the South China Sea Islands is to maintain China’s national rights and interests to the utmost in accordance with the Convention.Of course,the precondition is that the disputes over the islands with neighboring countries are successfully settled.

(Senior Editor:CHEN Hui-ping Editors:Stephen Pire;QIANG Zhi-heng)

*Jiang Li,Bachelor of China University of Political Science and Law;Assistant researcher fellow with National Marine Data and Information Service.Email:rainbow_jiangli@yahoo.com.cn.

**Zhang Jie,Engineer with National Marine Data and Information Service.