1 Introduction

It is generally thought that China has already established a straight baseline on the Spratly Islands—which is the southern part of the South China Sea—and as we shall see below, it is very controversial whether China has already established or not the offshore archipelago or mid-ocean or outlying archipelago (we can use these terms interchangeably in this paper). This paper aims to examine the issues whether China is entitled to employ the straight baseline or archipelagic baseline in the Spratly Islands under the Law of the Sea Convention (losc). If the losc is not applicable, next question is whether there is a customary international law rule established for admitting straight baseline on the offshore archipelago. There are two different discussions in this context.

2 losc Provisions

Let’s move on to losc provisions. There are four articles relevant to the baselines. The first is normal baselines. I would like to skip this one. The second is straight baselines. There are some paragraphs, but the most important part is paragraph one. In localities where the coastline is deeply indented and cut into—this is the first requirement—or if there is a fringe of islands along the coast in its immediate vicinity—this is the second requirement in question. So, the question is whether China can satisfy these requirements in the case of the Spratly Islands. The method of straight baseline may be employed in drawing the baseline. This is applicable for all criteria and applicable provisions of losc firstly. I will skip the remaining paragraphs and let’s move on to Article 46.

In Part iv, entitled archipelagic states on paragraph (a) “archipelagic State” means a State constituted wholly by one or more archipelagos and may include other islands, very simply defined. The next paragraph, (b) “archipelago” means a group of islands and so on. We are going back to this definition under Article 46, and the very controversial article is Article 47 about archipelagic baselines. An archipelagic State, defined here in Article 46, may draw straight archipelagic baselines under some requirements, especially as already pointed out by the previous presenter Professor Schofield, an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1 and shall not exceed 100 nautical miles. These are applicable requirements which China has to satisfy if it intends to apply the archipelagic baselines.

3 China’s Position

I would like to skip the other paragraphs and jump to the China’s position on the straight or archipelagic baselines. Going back to the beginning of the statement by China expressed in 1955, China adopted a straight baseline in some parts including the South China Sea. However, the straight baselines surrounding each island in the South China Sea are not established or published. The problem is whether China already implemented and applied straight baselines or not, then published or not. Afterwards, in 1992, according to the Law on the Territorial Sea and Contiguous Zone, Article 3, the method of straight baselines composed of all the straight lines joining the adjacent base points shall be employed.

But there’s no precise information about where the straight baselines were adopted by Article 3 in this 1992 law. Afterwards, the 1996 Declaration on the straight baseline in the Paracel Islands—also in the South China Sea—but western part which is very close to the Vietnam. Next one is 2012 when China established straight baseline surrounding the Diaoyu/Senkaku Island. It’s a quite controversial issue between China and Japan, but unfortunately, I cannot touch upon these two maritime features; Paracel Islands and Senkaku Islands in this presentation.

Here is a summary of China’s position before 2012. According to Professor Zhang, he contributed to the publication of my book. Hua Zhang, Chinese scholar, said that it cannot be excluded the possibility that China would apply the straight baselines to three other groups of islands in the South China Sea especially the Nansha/Spratly Islands in the foreseeable future. A little bit more aggressive evaluation was expressed by Mr. Tsuruta, Japanese scholar. He also contributed to the publication of my book. According to him, China may have already applied the straight baselines (also in the Spratly Islands) without making them disclosed or published. This is much more nuanced evaluation. Probably, China has already established straight baselines in the Spratly Islands but not yet disclosed it. Later, we’re going to check this fact.

4 Award in the scs Case (2016)

Let’s see the reaction from the tribunal in the South China Sea case. In the South China Sea case, the statement of China on the legal status of the Spratly Islands was interpreted by the tribunal in two ways. I am going to deal with the second way, that is the second interpretation of the tribunal according to which the employment of archipelagic baseline or the straight baseline applied to the offshore archipelago was adopted by China. The tribunal denied this possibility as follows. It’s a little bit long inside quotation.

Firstly, with regard to Articles 46 and 47, the Spratly Islands should be enclosed within a system of archipelagic or straight baselines, this is assertion of China, but the Tribunal cannot agree—it has very clearly denied it—and strictly controlled by losc. Article 47 (1) limits their use to archipelagic States which is defined in Article 46 and China is constituted principally by territory on the mainland of Asia and cannot meet the definition of the archipelagic State. As it is not an archipelagic State, it cannot establish archipelagic baseline, quite clearly. Then, if China can satisfy the requirements of being an archipelagic State, it cannot satisfy another requirement of ratio of water, as it is expressed by the Tribunal.

Next, in paragraph 575, the Tribunal examines the applicability of Article 7. As I said, it’s about straight baselines and the practice of some States in employing straight baselines with respect to offshore archipelagos to approximate. The tribunal admits that there are some practices like China’s practice—and any application of straight baselines to the Spratly Islands in this fashion would be contrary to losc. This is the conclusion of the Tribunal. Then, the reason is expressed here. These conditions do not include the situation of offshore archipelago. We cannot apply the Article 7 to the offshore archipelago because there’s a requirement of immediate vicinity. China’s argument cannot satisfy this requirement according to the tribunal.

Then, last part, the grant of permission, Article 7, and the conditional permission in Articles 46 and 47 finally excludes the possibility of employing straight baselines in other circumstances. So, there is no exception outside these articles. In particular, with respect to offshore archipelago not meeting the criteria for archipelagic baselines—this is the conclusion. This is also the conclusion part; notwithstanding the practice of some States to the contrary—this is a quite controversial part to be subjected to later discussion among scholars—the Tribunal sees no evidence that any deviation from this rule have amounted to the formulation of new rule of customary international law. There is no customary law established with regard to the position of China. This is the conclusion of the Tribunal.

As a summary, I divided the finding of the tribunal into three parts. As far as Article 47 archipelagic baseline is concerned, China is not archipelagic State. Even if it is so, it doesn’t satisfy other requirements. This is the first part and with regard to straight baseline with regard to offshore archipelagos is not applicable to the Spratly Islands because Article 7 is not applicable to offshore or mid-ocean archipelago. The second one is that the general permission and the conditional permissions exclude the possibility of straight baselines in other circumstances. As I said, there’s no exception. So, under three articles of losc, China is not entitled to establish archipelagic or straight baseline in the Spratly Islands. There is no customary international law rule apart from losc even though there are some contrary State practices as admitted by the tribunal as exception.

5 China’s Critique (2018)

China criticized the Tribunal’s award. I would like to skip this part. So, what is the legal basis argued by China? The first one is that the negotiation history shows that the losc does not regulate the issue of continental States’ outlying archipelagos as such, and continental States have effectively preserved the regime of outlying archipelago as a unit. It’s not touched upon by the losc. It has been established in customary international law including internal waters, and then it is also repeated by China that it is customary international law regime of outlining archipelagos that should be applied and without inquiring into customary international law; this is a problem in the arbitral award. So, China’s suggestion is very important because in this critical study published by China, it is stated that China has promulgated that straight baselines method shall be employed to determine the baselines of the territorial sea of Nansha Qundao, the Spratly Islands, but has not published detailed basepoints or baselines with finality.

So, as I said, probably China already established the straight baselines in the Spratly Islands but not yet published this fact or not disclosed the detailed basepoints or baselines with finality. Probably, it’s still very provisional decision by the Chinese government. I’d like to skip here, and a summary of China’s position. Offshore archipelago baseline can be established, and this is justified not by the losc, this is beyond the scope of the Law of the Sea Convention but by customary international law rule existing outside the Convention which has been established by enough amount of State practices. So, the discussion moves on to the customary international law rather than the losc.

6 Remaining Issues to Be Discussed

Remaining issues to be discussed in Section 5. Just briefly, the question is, is there any customary international law rule admitting the employment of a straight baseline with respect to the offshore archipelago? From the Chinese scholar’s viewpoint, there is still controversial and confusion in the calculation of State practices in each study but 18 State practices of this kind have been described and used for justification of State practices, since the early 20th century.

The first point is that many State practices are pre-losc practices. This means that there were such kind of State practices before the entry into force of the losc, and there are a variety of situations in each case, and some practices were criticized very heavily by other states, especially by the United States of America. United States has consistently objected to such kind of State practices.

From here, I’m going to check and introduce the discussion between two parts. One is the pro-China and the second one is the anti-China position. First, Roach, legal advisor of the US Department of State, 2013. Six of the 15 claims to enclose offshore archipelagos have been protested by nine states and the United States protests against employments of straight baselines at offshore archipelagos in the case of Canada, Denmark, Ecuador, Portugal, Sudan, UK, etc.

This is in chronological order from 2013. Afterwards, it’s important to check the position of China expressed in the critical study in paragraph 586. The practice of continental States in drawing baselines around their outlying archipelagos as units has only encountered sporadic, isolated and selective protests. This means that the US protests were sporadic, isolated and selective. So, the United States is the only one persistent objector according to the position of China. So, the protests against Ecuador, Denmark, Portugal, China but not all. There are many other exceptions. These protests are selective and inconsistent. They are largely aimed at ensuring the access of US military vessels and aircraft to the major oceans and the seas in the world. This is policy-oriented protests by the United States against all the states. It’s very sporadic, isolated and selective.

This is the positions of China and, very interestingly, some authors, not Chinese, but in this case, it’s UK, former UK Foreign and Commonwealth Office official supported the position of China. So, according to him, according to the preamble of the losc, it is said, affirming that matters not regulated by this Convention to be governed by general international law which means customary international law according to this author, and there exist widespread and consistent State practices. The US is persistent objector but cannot prevent the establishment of customary international law rule. This is probably same as China’s position of persistent objector, but there is the establishment of customary international law.

The second argument is based on Article 7, which is broad enough to admit the straight baseline at the offshore archipelago, but he keeps the application of the requirements namely that if an offshore archipelago satisfies the condition of where the coastline is deeply indented and cut into, Article 7 (1) is applicable. As far as Article 7 (1) is satisfied, there can be justification in the case of China as well. I would like to skip the kind of repetition of arguments by Roach, no customary international law, and he attempted to elaborate the State practice analysis; 15 State practices exist and nine states protested against nine practices. Some states do not employ—there are other State practices, not to employ the straight baselines in offshore archipelago like US, India and Spain. So, there’s no customary international law rule nor the subsequent agreement in the context of interpretation under the Vienna Convention on the Law of Treaties concerning Article 7 of the losc.

7 Conclusions

To conclude, at the level of fact, it is required to pay attention to the official position of China, expressed in a variety of ways, towards the straight baseline of the offshore archipelago, especially in the Spratly Islands. We need to clarify the legal status of the straight baseline prior to offshore archipelago before the China’s future official decision to apply it to the Spratly Islands. In my understanding, China already established a straight baseline in the Spratly Islands, but it’s not disclosed. It doesn’t disclose this fact clearly yet. The next point as in point 2, at the level of interpretation of the losc. The South China Sea arbitral award clearly denied the argument of China to employ the straight baseline in question within the losc. The second issue is the comprehensiveness of the losc must be the most powerful argument against straight baseline of the offshore archipelago. We have to discuss this one much more deeply.

The third issue is the most controversial one. At the level of customary international law, there remains a strong criticism by China against the finding of the tribunal supported by some scholars including non-Chinese scholars as we already saw in the foregoing. Its argument is based on the existence of a customary international law rule. It seems difficult, at least for the moment, to admit the establishment of a customary international law rule because (i) it is contrary to the provision of the losc itself, and (ii) it is based on the State practice before the entry into force of the Convention, and (iii) State practices are criticized by other States for the moment. This is my evaluation. Even if customary international rules have been existing before the entry into force of the Law of the Sea Convention, it should be understood as being superseded by the losc. Probably, there can be some connection between comprehensiveness and supersede, the term used by the Tribunal in the South China Sea case by the Tribunal.

This is the conclusion of my presentation, and the last one is advertisement of publication. I referred to some articles in my presentation, which are actually Hua Zhang’s article, ‘The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging to Continental States: A Chinese Lawyer’s Perspective’.¹ Finally, he justifies the China’s position. Against this, Yurika Ishii, Japanese scholar, criticized that position very critically.² If you’re interested, please see the two articles in my book. Professor Keyuan Zou and I edited this book and very recently published by Springer.