Offshore Archipelagos Enclosed By Straight Baselines: A Reply to J. Ashley Roach

1. In an interesting article in this Journal published in Volume 49, issue 3, J. Ashley Roach considers one aspect of the Award on the Merits given by the Tribunal in the South China Sea case on 26 July 2016. Roach is a well-known expert on the international law of the sea and an often persuasive exponent of United States views thereon. Roach’s basic thesis is that the Tribunal was correct to reach the conclusion that it is not permissible in international law for a state to draw straight baselines around an offshore archipelago, that is, one detached from the main territory of the state. The Tribunal’s reasoning relates to the Spratly (Nansha) Islands, but is expressed in general terms. 2. In an earlier paper, I expressed serious reservations about the Tribunal’s decision in this respect, but Roach says that my analysis is “deficient.” First, I had pointed out that China has not in fact to date drawn straight baselines around the Spratly (Nansha) Islands; hence the question of whether straight baselines could be drawn around the Islands was hypothetical. In these circumstances, I questioned whether it was right for the Tribunal to consider such a complex question of the international law of the sea. Roach argues that because China did not appear in the proceedings, the Tribunal “felt obliged to consider the issue.” 3. However, surely the correct analysis is that, even if the Tribunal decided it must consider this issue, it should, once it had done so, have concluded that it was hypothetical. The Tribunal ought then to have asked itself whether it was appropriate for it to make a ruling on the issue. Furthermore, Roach does not seem to dispute that the issue was in fact hypothetical, and that the Tribunal’s views thereon are thus obiter, as suggested in my paper. 4. I have in addition argued that in any event, the Tribunal had no jurisdiction to address this issue. This is because China has exercised its option under Article 298(1)(a) of the U.N. Convention on the Law of the Sea (LOSC) to exclude from the compulsory dispute settlement procedures “disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations.” Any decision on whether China may draw straight baselines around the Spratly (Nansha) Islands must inevitably “have a bearing” on any maritime delimitation between China and the Philippines and thus “concern” the application of Articles 74 and 83 within the meaning of Article