1 Introduction
An archipelago is a ‘group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such’.1 For the most part the law on archipelagic States is well-settled. Part iv of the United Nations Convention on the Law of the Sea 1982 (losc) defines an archipelagic State and the status of archipelagic waters. It establishes rules for drawing baselines around the archipelago, and it delimits specific navigational and other rights within archipelagic waters. Churchill and Lowe observe that the law has worked well since the entry into force of the losc and that the regime appears to balance well the interests of archipelagic and maritime States.2 Similarly, Davenport notes that the losc settled years of debate over the status of groups of islands and established an effective regime.3 However, such remarks concern the regime of archipelagic States or mid-ocean archipelagos. This refers to groups of islands that are States in their own right, such as Indonesia, Philippines, Fiji, and Nicobar and Andaman. The law of the sea draws a distinction between archipelagic States and other archipelagos, namely coastal archipelagos and dependent or outlying archipelagos. Coastal archipelagos constitute fringes of islands and other features close to the coastline, such as the skjargard along Norway’s coast, and similar features along the coasts of Sweden, Finland and parts of Canada. Dependent archipelagos are groups of islands that form part of a State that is comprised mainly
In contrast to archipelagic States, the legal position of dependent archipelagos remains uncertain or as Davenport describes it: ‘mired in uncertainty’.
The legal basis for archipelagic baselines can be traced to the Fisheries case (1951), where the icj acknowledged the use of straight baselines in certain
During the negotiation of the losc, archipelagic States argued that their exceptional geographic and political situation merited the development of special rules that allowed them to assert a higher degree of control over the waters of the archipelago.12 In general, the negotiations involved three connected elements. The first element focused on the special status of archipelagos, i.e., identifying which special circumstances justified special rules for archipelagos. The second element focused on how such claims were to be balanced against the interests of other States and in particular any reduction in navigational freedoms that would result from potential enclosure of large ocean areas within exclusive coastal State control. The third element focused upon how baselines should be drawn to ensure that they reflected such a balance of interests. These three elements of the negotiations ultimately resulted in a special regime for archipelagic States, as found in Part iv of the losc. All three elements are connected, but it is worth emphasising that whilst baselines are of upmost practical importance and will define the extent of the archipelago, the drawing of such lines is an entitlement that flows from a special status attaching to the State.
In recent years, it would appear that the debate about archipelagic claims has moved away from questions about the status of the archipelago to challenges
This paper seeks to revisit this aspect of claims to archipelagic waters to consider the extent to which the geographic, economic, and political unity of the archipelago can and should influence dependent archipelagic claims. These conditions are important for two reasons. First, the requirements for geographic, economic, political, and historical unity serve to ensure there is a material connection between legal claims or maritime jurisdiction and the underlying social, economic and geopolitical reality. This is critical because, as I argue elsewhere, law must be sensitive to the material conditions at play in our oceans.
2 Claims to Archipelagic Waters for Dependent Archipelagos
If Part iv of the losc is not exhaustive of archipelagic claims, then there are two possibilities for the use of straight baselines around dependent archipelagos. The first is for the general provisions on straight baselines in Article 7 to be applied to dependent archipelagos. The second is to identify a rule on dependent archipelagos under customary international law. In this latter case, then the requirements for the existence of a rules of customary international law must be satisfied.
Either approach appears to be ruled out by the tribunal in the South China Sea arbitration. Here the tribunal noted the existence of practice by some States using straight baselines around offshore archipelagos to approximate the effect of archipelagic baselines but rejected this as applicable to the Spratly Islands.16 The tribunal explicitly rejected the application of Article 7 to offshore archipelagos, observing that Article 7 applies only to islands that fringe the main coastline. The tribunal accepted that there were other situations where straight baselines could be used but observed that this does not include offshore archipelagos. The tribunal reasoned that to extend Article 7 further would effectively render the provisions of Articles 7 and 47 meaningless. The reasoning on this point was unclear, but presumably it was meant that that this would render straight baselines generally applicable rather than exceptional.
First, there is nothing in the language of Article 7 that limits its application to continental coastlines. The logic of Article 7 is to account for complex geography and economic factors in the drawing of baselines; it is intended to simplify the drawing of baselines along deeply indented coastlines. This provision is derived from the Fisheries case, where the Court considered the specific situation of a mainland coastline. However, there is nothing in the judgment to suggest that the Court’s reasoning was limited only to continental coastlines. Indeed, as the Court concluded, ‘The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway’
Secondly, as observed in the wider literature on the law of the sea, the losc is a living instrument, one that is intended to adapt to changed circumstances.19 This adaptability is particularly important in respect of matters not directly addressed by the Convention. According to this understanding of losc, we should accommodate legal developments that go with the grain of the losc.20 Arguably, this includes the position of dependent archipelagos. The losc favours exceptions to the ordinary rules on baselines and indeed the delimitation of maritime entitlements when geographic or exceptional conditions justify this. These is some State practice in support of this as regards dependent archipelagos. Furthermore, a review of the travaux preparatoires
If we look at the development of customary rules, then I would argue that as long as the practice accords with the general tenor of the losc then this is an acceptable development in the law of the sea. However, what is critical here is that the developments are in line with the same general constraints that apply to coastal and archipelagic States. These constraints should extend to offshore archipelagos. This means at a minimum ensuring consistency with existing principles so that ‘the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters’.21 It also means that the preconditions of Article 46 are respected, i.e. that dependent archipelagos manifest some geographic, economic, political and historical connection, and, finally, that baselines respect the rules in Article 47.
If one looks at the literature on archipelagic claims, then it appears that the assessment of customary entitlements to dependent archipelagic waters is something of a numbers game. Below is Table 10.1, indicating the range of current claims to dependent archipelagos, alongside the claimant State, those States in the nearest geographic vicinity, protesting States, and a final column indicating whether there is some geographical, political, economic or historical connection between the archipelago and the metropolitan territory.
Dependent archipelagic claims (based on data from Roach 2018)a
Feature |
Claimant State |
Neighbouring States/entities |
Protests |
Unity features |
|
---|---|---|---|---|---|
1 |
Faroes |
Denmark |
UK, Iceland, Norway, Denmark |
US |
Arguable |
2 |
Diayou/Senkaku |
China/Japan |
Japan, Taiwan, South Korea, Philippines |
US |
Sovereignty dispute |
3 |
Azores |
Portugal |
Morocco, Western Sahara, Spain |
US |
Arguable |
4 |
Falklands |
UK |
Argentina, Chile |
US |
Arguable |
5 |
Hainan |
China |
Vietnam, Philippines |
US |
Arguable |
6 |
Xisha/Paracel |
China |
Vietnam, Philippines |
US, Philippines, Vietnam |
Sovereignty dispute |
7 |
Galapagos |
Ecuador |
Colombia, Peru, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and Mexico. |
US, UK, Germany, Belgium, Spain, Sweden |
Arguable |
8 |
Coco and Preparis |
Myanmar |
Bangladesh, India, Thailand, Malaysia, Indonesia |
Bangladesh |
Arguable |
9 |
Svalbard |
Norway |
Russia, Greenland, Iceland |
No objections |
Arguable |
10 |
Canary Islands |
Spain |
Morocco, Western Sahara, Portugal, Mauritania |
No objection. imo pssa |
Arguable |
11 |
Kerguelen Islands |
France |
No objections |
Arguable |
|
12 |
Malvinas |
Argentina |
Chile |
No objection? |
Sovereignty dispute |
13 |
Turks and Caicos |
UK |
Cuba, Dominican Republic, Haiti, United States |
No objections |
Arguable |
14 |
Guadeloupe |
France |
Dominica, St Lucia, British Virgin Islands, Puerto Rico, Barbados, Grenada |
No objection |
Arguable |
15 |
Loyalty Islands |
France |
Vanuatu, Fiji |
No objection |
Arguable |
16 |
Hawaii |
US |
Not claimed |
Arguable |
|
17 |
Andaman and Nicobar |
India |
Thailand, Myanmar, Indonesia, Bangladesh |
Not claimed |
Arguable |
18 |
Balearic Islands |
Spain |
France, Italy, Tunisia |
Not claimed |
Arguable |
a The final column, unity features refer to the existence of some or all of the three elements for archipelagic status: geographic, economic or political. In some cases this is difficult to discern due to an ongoing sovereignty dispute over the islands. This at least cast doubt on the connectivity of the islands with one or more of the disputing States.
Furthermore, if, as it seems to be the case, the existence of a customary rule on dependent archipelagos is a numbers game, then I would suggest that this game, like in a casino, is stacked in favour of the house. And the house is the State asserting a claim to an offshore archipelago. First, in terms of mere self-interest, it seems reasonable to assume that States with a geographical configuration favourable to a claim are likely to make their own claims and recognise similar claims by other States. Furthermore, such claimant States will seek to maximise their advantage by pushing the boundaries of what is legally
Second, the dynamics of practice, including that of specially interested States, is likely to favour support for a rule of custom allowing dependent archipelagic claims. The formation of customary international law requires a generality of practice, and this might suggest that relatively small amounts of practice, as noted above, are inconclusive. However, any evaluation of practice would likely give more weight to the practice of the most interested States, i.e., those possessing dependent archipelagos. Even if the rules on the formation of custom do not quite give specially interested States a greater say in the formation of a rule, they do require that the assessment of State practice must include that of specially interested States.
Of course, this assumption about acquiescence needs to be qualified. The ilc has stated that two requirements must be satisfied to ensure that tolerance is connected to the practice in question.
So far, the focus has been on practice. Little has been said about opinio juris. Opinio juris is important in this context since, as I argue below, not only is it required to identify a rule of custom, but it also helps to shape how such a rule is framed. In the literature on dependent archipelagos, practice and custom are treated closely. Kopela considers opinio juris by way of inference from State practice, or in the context of protest or acquiescence by other States to particular claims.28 Similarly, Roach considers this mainly in the context of protests.29 Whomersley does not mention it at all.30 In practice, explicit statements about the legal basis for a claim to dependent archipelagic waters are uncommon, so this light touch approach to assessing opinio juris is understandable. It is consistent with common understandings of how custom operates, and it seems
Here I take a different approach and argue for a more robust assessment of opinio juris. I take the view that emergent claims to customary international law should also be formulated in a systemic fashion, that is to say, it must be formed with reference to existing rules of law about what is legally permissible. Opinio juris entails a sense of legal entitlement or duty, and this can only be meaningful if one refers to the existing legal context within which the alleged customary rule is situated. As the ilc Draft conclusions state: opinio juris ‘must be accompanied by a conviction that it is permitted, required or prohibited by customary international law’.32 In the North Sea Continental Shelf cases, the court referred to opinio juris as conforming to what amounts to a legal obligation: ‘Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it’.33 This speaks again to the idea of coherence with existing standards of conduct. The ilc Draft Conclusions do not explicitly refer to coherence with existing rules in the context of opinio juris, but this must be implicit in the nature of opinio juris. Otherwise, the idea of a sense of obligation would collapse into pure, unmitigated subjectivity. Accordingly, opinio juris cannot be pure belief – it must connect to and be reasoned in accordance with some sense of legal entitlement based upon an existing legal framework. Although States do not have to explain their reasons or motives, the fact that the rules on the formation of customary international law exclude other non-legal motives such as comity, political expedience or convenience means that the basis of a State’s belief or reasoning is fundamentally relevant to its claims.34 This approach, which focuses on the systemic coherence of opinio juris, makes it possible to assess novel claims. It is consistent with the reason-based nature
It follows that a claim to dependent archipelagic waters must manifest some degree of coherence with the existing legal basis for claims to mid-ocean archipelagic waters and the rationales applicable to the use of straight baselines since these are the most relevant contexts for assessing such claims. There is some precedent for this. Thus, Danish claims to draw baselines around the Faroe Islands were rationalised on the basis of the ‘compact nature of the group of islands, as well as the economic interests (in fishing) peculiar to the region, and as evidence by long usage.38 This connects to the so-called unity requirements set forth in Article 46 of the losc. These requirements are examined next.
3 What Claims to Archipelagic Status Are Permissible?
Under the losc, an archipelago is defined as ‘a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such’.39 This sets out the concept of an archipelago which is distinct from an archipelagic State, which is further defined as a ‘State constituted wholly by one or more archipelagos and may include other islands’ Part iv only applies to what are termed mid-ocean archipelagos, thereby excluding coastal archipelagos and dependent archipelagos from its provisions on baselines, status of waters and rights therein. From Article 46 of the losc, we
Whilst the status of an archipelago should be distinct from the question of how baselines are drawn, in practice this distinction is not easy to maintain. Although the icj stated in the Qatar/Bahrain case that archipelagic status must be claimed before a State is able to enjoy the rights of an archipelagic State,
Let us consider these elements in turn.
3.1 The Geographic Requirement
The principal geographic feature of an archipelago is that it is a group of islands, but beyond this, things become less certain. The development of archipelagic waters was based heavily on arguments of geography.
At a minimum, there must be two or more islands. Presumably some of the island group must fit with the definition of islands per Article 121 of the losc. However, this does not preclude other maritime features being regarded as part of an archipelago because Article 46 refers to ‘other natural features’, such as low tide elevations or rocks, in the definition of the archipelago.
The islands must be located in a way that makes them a geographic entity. Yet, quite what a ‘geographic entity’ means is anyone’s guess. Indeed, it is the significant diversity of geographic conditions that seems to have presented most challenges for the development of a complete legal regime for archipelagos. Here variables appear to include the number, size and shape of islands, or their relative proximity. The islands may also share a common submarine platform.46 Beyond referring to some physical situation, no more specific geophysical or geological criterion have been articulated in law. This openness of definition favours treating each case on its own merits, but there should be some limits to keep the notion of archipelago meaningful. Amerasinghe suggests the conditions need to be exceptional – in the sense that they distinguish archipelagos from other features.
In summary, what appears to be common across accounts of geographic criteria is a need for some special degree of closeness or interrelationship between land and sea.
3.2 The Economic Requirement
Some archipelagic States have claimed that the seas between their islands are an important source of food and other resources for their inhabitants.55 This economic dependence has only increased as populations have grown. Economic dependence has focused on three main resources. First, there are fisheries, principally as a means to provide livelihoods for local populations.56 A particular concern was that local fishermen would find it difficult to compete with better developed distant water industrial fleets. Archipelagic waters
Amerasinghe suggests there must be more than a superficial economic relationship.61 Further, he argues there are three factors of importance.62 First, there must be a strong dependence of the inhabitants of the islands on the economic resources of the oceans surrounding them. Second, such dependence must be established for all the islands in respect of all the oceans. It is not sufficient for individual islands to be dependent on individual surrounding oceans. Third, such economic interests should be proven to have been enjoyed for a period of time (unspecified). Rajan follows Amerasinghe’s approach.63 O’Connell reflecting on the Fisheries case, highlighted the specific relevance of economic considerations when assessing archipelagic claims.64 These were key criteria in respect of coastal archipelagos, and he argued that they would be no less relevant to mid-ocean archipelagos. He suggested that to draw any distinction between them as regards the importance each State attaches to marine resources would be artificial.65 This distinction can helpfully be used to distinguish populated islands that are subject to substantial economic activities from highly dispersed islands where little economic activity exists, and so mediate more expansive claims to archipelagic waters. In any event, there seems to be no reason why arguments based upon economic dependency should not extend to dependent archipelagos. To treat such economic interests differently would be discriminatory and artificially selective.
3.3 The Political Requirement
The third requirement is for there to be political connection between the islands. At a basic level this requires the archipelago to be part of a single State and this clearly excludes island groups that form more than one sovereignty from being treated as an archipelago – as is the case of the Caribbean. The literature offers little guidance on what further meaning might be given to the political dimension of unity, other than to connect it to security concerns. Thus, Rajan indicates that the political requirement is linked to security noting that the islands under the sovereignty of a single State mean ‘that security considerations, apart from the consideration of unity among the inhabitants of the island, become cogent’.66 Amerasinghe observes that exclusive control of waters would enable protection of the archipelagic State’s interests, for example to control smuggling or illegal entry.67 O’Connell also noted that for Indonesia and Philippines, economic considerations were used to reinforce security-based arguments, whereas for other archipelagos, where there was no security concern, economic motives were more important.68 This suggests that political concerns may not be critical, other than the single sovereignty requirement. Even if more nuanced security concerns have to be demonstrated, it would not be a difficult case for any State claiming dependent archipelagic waters to show such concerns existed.
In most cases dependent archipelagos are not disputed territories, so this minimal level of political connection seems unlikely to be determinative of entitlement to claim archipelagic waters. Although some dependent archipelagos may enjoy a degree of autonomy from the metropolitan territory (e.g., Faroe Islands), this does not significantly interrupt the political connections between parts of the State.
3.4 The ‘Unity’ Requirement
Article 46 requires a close and intrinsic unity of the foregoing three features in order to constitute a legal archipelago. Thus, the features should be ‘so closely related’ as to ‘form an intrinsic geographical, economic and political entity …’. Underpinning the above requirements is the idea that the integrity or unity of the archipelago should be protected. As Senator Tolentino, a strong advocate of the Philippines’ archipelagic claims argued: ‘it is unthinkable and impossible for us to lend our support to any proposal which may be interpreted, even more remotely, as impairing any of our historic rights, and which
In geographic terms, this implies some degree of proximity. However, Munawar also suggests that ‘ecological and environmental factors may also serve as indicators of the close relationship between the islands and other natural features and the interconnecting waters of the island group’.72 Economic coherence is generally recognised as relevant, but as discussed, it lacks a precise objective content since any archipelagic entity may point to some economic reasons for unity. As such, economic unity becomes a relative and subjective criterion. Accordingly, higher degrees of economic activity within and across the archipelago will strengthen any claims to archipelagic status. Alongside the political dimension, it points towards the survival of the State. Political coherence goes little beyond requiring the features of the archipelago to belong to the same State. This means that disputed features such as the Spratly Islands cannot be considered as meeting this requirement.
3.5 Historical Requirement
The historical criterion is framed as an alternative, rather than complementary criterion for archipelagic status. This means that even where the entity does not meet the intrinsic geographic, economic and political criteria, it may still be considered as an archipelago if it has historically been considered as an
3.6 Other Requirements
Not unrelated to security is the argument that non-exclusive control of the waters within the archipelago could result in the environmental degradation of such waters. Historically, environmental factors played a major role in helping to justify claims to archipelagic waters per se.75 Thus, several States have advanced a desire to control the movements of tankers in coastal waters during the negotiation of the losc.76 More generally, Fiji asserted that it was vital to control the development of its marine environment to ensure it was in its best interests and would prevent any form of depredation or pollution of the marine environment.77 There is scientific evidence to support the claim that archipelagic waters are more vulnerable to pollution.78 This could be used to justify wider authority to protect such waters and to extend such protections around the vulnerable ecosystems. For example, Ecuador has used
It is possible to link environmental concerns to geographic conditions. Here we should recall the perceptiveness of O’Connell who remarked upon the special nature of coral islands, which are of particular relevance to archipelagos: ‘The areas of intersection of land and sea are subject to incessant biological and chemical interaction, whereby the land is preserved from ultimate destruction. Pollution of these areas can destroy the organisms that are essential for the coastal mud to retain its vitality and support the flora, notably mangroves, which in many instances constitute an essential rampart against the sea’.80 This points to a more nuanced physical relationship between the land and sea. There is in principle, no reason why such arguments should not extend to dependent archipelagos where such waters are particularly vulnerable to harm.
That said, environmental conditions alone are not something advanced within the specific provisions on archipelagos in the losc, neither is it a concern that is exclusive to archipelagos. All States have an interest in and duty to protect the marine environment.81 Notably, the losc does not differentiate archipelagic waters for special treatment in this respect either in Part iv or Part xii. Whilst some degree of natural connectivity between coastal and oceanic systems may be particular to an island group, it would be difficult to extrapolate from this a generalisable basis for claiming dependent archipelagic waters. At best, it provides an additional political reason for claiming archipelagic waters that taps into more widely recognised concerns about the need for improved environmental protection. It is suggested that environmental considerations ought primarily to be focused on ensuring that any specific vulnerability of archipelagos be addressed through stronger regulation on activities in coastal waters. There is a range of tools available to support this including designation of marine protected areas or particularly sensitive sea areas.
3.7 Evaluating the Requirements
Following her review of State practice, Kopela argues that geographic considerations should be determinative of the regime of archipelagos since this is the most common feature referred to in practice.82 This is perhaps a compelling conclusion given the principal focus on drawing of baselines around geographic features. However, it is possible to counter this conclusion, especially since there are so few explicit references to geography being the actual basis of claims. Kopela’s conclusion is drawn from an implicit assessment of the general geography of the claimed features.83 If one reviews the legislation claiming archipelagic waters, then one sees that geography is seldom cited as the basis of the claim. Denmark’s legislation on the Faroe Islands baselines makes passing reference only to exclusive fisheries within the baseline.84 China’s legislation for the Diaoyu Islands,85 and the Hainan and Xisha Islands86 make no reference to any characteristic of the islands – other than to describe the features. The same applies to Portugal’s legislation on the Azores,87 UK legislation for the Falkland Islands88 and Turks and Caicos Islands,89 Ecuador for the Galapagos Islands,90 Myanmar for the Coco and Preparis Islands,91 Norway for Svalbard,92 and Spain for the Canary Islands.93 Most States simply delimit waters around such island groups using straight baselines or a combination of straight baselines and low water marks. Indeed, few States make explicit reference to the criteria for archipelagos in the losc, with Indonesia somewhat exceptionally referring to the reciprocal relationship between land and waters, and singular geographical, economic, security and defence and political unity
There are at least two arguments that could be used to counter my argument that the preconditions for archipelagic status (i.e., the unity requirement) should play a role in evaluating dependent archipelagic claims, and more specifically as helping to frame the sense of legal entitlement to such a claim as a matter of customary international law. The first is that archipelagic status must be claimed and proclaimed. As Miron notes, archipelagic status does not exist ipso facto in the same way that a continental shelf exists.95 As such it is contingent upon some further act, and this may weaken the relevance of the unity requirement. It places emphasis on the claim, rather than the basis of the claim. Second, the review of the literature above suggests that there is no mathematical method capable of determining the content of the unity requirement. Rather, each requirement is a merely a broad basis upon which claims for archipelagic status may be advanced. This allows flexibility, but at the price of uncertainty, and this is manifest in the variety of claims advanced to archipelagic status. As Jayewardene suggests, the diverse motives advanced by some States to support their claims for special status have had the result of making it more difficult to evaluate those claims.96 If there are no determinable measures of geography, politics or economics that can be used to set a threshold for archipelagic status then this renders application so variable as not to be a meaningful determinant of any claim. Ultimately, legal rules
Article 46 is a provision that operates qualitatively. It provides a wider range of contextual factors that can be used by States to assess archipelagic claims. Unlike mathematically precise rules, these allow space for nuance and compromise. For example, in the face of challenges to the drawing of baselines around some maritime features, some States have revised their baselines. Fifty years ago, when assessing the criteria for coastal archipelagos advanced by the icj in the Fisheries case, O’Connell concluded that to exclude economic factors would be to wrongly constrain the scope for legal evaluation of claims.97 The Court’s judgement ‘cannot but be regarded as emancipating the archipelagic question from the confines of precise limits, specific shape and abstract definition in which all previous discussion has sought to enmesh it …’.98 In short, these criteria remain important in framing the assessment of claims. Returning to my initial observation about the importance of ensuring a connection between legal regimes and the underlying material reality, this recognition of the importance of a wider legal assessment of claims remains critical in ensuring that legal claims are not divorced from physical, political, and economic realities, and that such claims are consistent with existing laws.
4 Concluding Thoughts
The drawing of baselines is an important step it in determining the extent of maritime entitlements. However, in the case of archipelagos this can only be done after it has been established that there is a justifiable basis in law for treating an island group as an archipelago. This means establishing that there are islands which comprise a geographic, economic, and political unity, or have been historically regarded as such. The losc applies these conditions to archipelagic States. Assuming that dependent archipelagos are permissible under custom, it is inconceivable that dependent archipelagos could be claimed under customary international law without meeting the same requirements for archipelagic status under the losc. Otherwise, they would potentially be treated more favourably than mid-ocean archipelagos. As argued above, the requirement of geographic, economic, and political unity satisfies both the
When we consider the process and requirements of custom formation, and apply this to the claims to dependent archipelagic waters, it is difficult to resist the argument that States have an entitlement to draw straight baselines around dependent archipelagos. Practice as well as the structural bias towards claimant States tend to favour this. Additionally, when we consider the systemic fit of such claims within the relevant body of rules on the law of the sea, either pertaining to the use of straight baselines or archipelagic status, then it also is difficult to argue that claims to dependent archipelagos should be treated differently than mid-ocean archipelagos. In most such cases there exist the same geographic, economic or political connection between the islands. Kopela concludes her study by noting that the considerable variations in the geography mean that it is difficult to develop a highly uniform regime.99 She also notes that as far as possible, law should treat like cases alike. It is difficult to disagree with these findings. Of course, this means trying to achieve a balance between flexibility and coherence. By focusing on the core elements that justify the special treatment of archipelagos, we at least ensure that the development of a regime for dependent archipelagos is based upon similar limiting factors. This may not provide categorical answers to questions of entitlement, but it does at least ensure some degree of coherence in the dialogue about the legitimacy of maritime claims.
Article 46(b), United Nations Convention on the Law of the Sea 1982, 1833 unts 3.
RR Churchill and AV Lowe, The Law of the Sea (3rd edn, Manchester University Press, 1999), 130.
T Davenport, ‘The archipelagic regime’, in D.R. Rothwell, A. G. Oude Elferink, K.N. Scott and T. Stephens (eds), The Oxford Handbook of the Law of the Sea (Oxford: Oxford University Press, 2015) 134–158, 158.
DR Rothwell and T Stephens, The International Law of the Sea (Hart, 2010) 183.
Ibid, p. 156. See further, S Kopela, Dependent Archipelagos in the Law of the Sea (Martinus Nijhoff, 2013).
See for example, Chinese Society of International Law, ‘The South China Sea Arbitration Awards: A Critical Study’ (2018) 17(2) Chinese Journal of International Law 207–748, at paras 558, 588.
JA Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?’ (2018) 49 Ocean Development and International Law 176–202.
See J Li and Z Jie, ‘A Preliminary Analysis of the Application of Archipelagic Regime and the Delimitation of the South China Sea’ (2010) China Oceans Law Review 167–185; J Nan, ‘On the Outlying Archipelagos of Continental States’ (2012) China Oceans Law Review 41–57; H Nong, L Jianwei, and C Pingping, ‘The Concept of Archipelagic State and the South China Sea: unclos, State Practice and Implication’ (2013) China Oceans Law Review 209–239; K-C Fu, ‘Freedom of Navigation and the Chinese Straight Baselines in the South China Sea’ in MH Nordquist, JN Moore, R Beckman and R Long (eds.), Freedom of Navigation and Globalization (Brill, 2015) 190–196.
Fisheries Case (United Kingdom v Norway) (1951) icj Reports 116, 128–132.
Ibid, 128.
Ibid, 129.
See J Su, ‘The Unity of Status of Continental States’ Outlying Archipelagos’ (2020) 35 ijmcl 801–835, 819. However, Su then appears to analyse the simple assertion of baselines as evidence of a unity, or at least taking this as an implication that a unity exists (pp. 819–23).
See further R Barnes, ‘Environmental Rights in Marine Spaces’ in S Bogojevic and R Rayfuse (eds), Environmental Rights in Europe and Beyond (Hart, 2018) 49–85; R Barnes, ‘The Construction of Ocean Space in Areas beyond National Jurisdiction. A fisheries perspective’ in V De Lucia, L Nguyen and AG Oude Elferink (eds) International Law and Marine Areas beyond National Jurisdiction: Reflections on Justice, Space, Knowledge and Power (Brill, 2022) 275–315.
In the Matter of the South China Sea Arbitration (The Republic of the Philippines v The People’s Republic of China), Award, 12 July 2016, [575].
Ibid., 576.
See the contributions in J Barrett and R Barnes (eds) Law of the Sea. UNCLOS as a Living Treaty (biicl, 2016).
M Wood, ‘Reflections on the United Nations Convention on the Law of the Sea: A Living Instrument’, in Barrett and Barnes, ibid., lxxvii–lxxxii.
losc, Art. 7(3).
C Whomersley, ‘Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley Roach’ (2018) 49 Ocean Development & International Law 203–207.
North Sea Continental Shelf cases, Judgment, (1969) icj Reports 3, at p. 43, para. 74.
Conclusion 2. ilc, Draft conclusions on identification of customary international law, with commentaries (2018), UN Doc A/73/10. Reproduced in Yearbook of the International Law Commission, 2018, vol. ii, Part Two. Available at
Fisheries case: ‘The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law … the validity of the delimitation with regard to other States depends upon international law’. Above (n 9), 132.
See for example, M Akehurst, ‘Custom as a Source of International Law’ (1974–75) 47 byil 1, 36.
icj in the North Sea Continental Shelf cases: ‘The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty’. Ibid.
See H Marcos, ‘A Reason-Based Approach to Coherence in Customary International Law (September 1, 2021). Interpretation of Customary International Law: Methods, Interpretative Choices and the Role of Coherence. 2nd trici-Law Conference, 2nd and 3rd of December 2021, The Hague, Available at ssrn:
See further M Adenas et al, (eds), General Principles and the Coherence of International Law (Brill Nijhoff 2019).
losc, Art 46(b).
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, (2001) icj Reports p. 40, paras. 180–183 and 214.
See T Markus ‘Article 46’ in A Proelss (ed.), United Nations Convention on the Law of the Sea. A Commentary, p. 351, para 40.
JR Coquia, ‘The Problem of the Territorial Waters of Archipelagos’ (1959) 7 Far Eastern Law Review 435.
D Andrew, ‘Archipelagos and the Law of the Sea: Island straits states or island-studded sea space?’ (1978) 2 Marine Policy 46–64, 47–8.
CF Amerasinghe, ‘The Problem of Archipelagos in International Law’ (1974) 23 iclq 539–575, 564.
DP O’Connell, ‘Mid-Ocean Archipelagos in International Law’ (1971) 45 byil 1–77, 1.
A Miron, ‘The Archipelagic Status Reconsidered in Light of the South China Sea and Düzgit Integrity Awards’ (2018) 15(3) Indonesian Journal of International Law 306–340, 312.
See for example, G Fitzmaurice, ‘Some Results of the Geneva Conference on the Law of the Sea. Part i. The Territorial Sea and Contiguous Zone and Related Topics’ (1959) 8 iclq 73–121, 88; Kopela above (n 5) 110.
Statement of the Philippines, United Nations Conference on the Law of the Sea 1958, Official Records, vol 3, p. 239.
Amerasinghe above (n 47) at 564; H P Rajan, ‘The Legal Regime of Archipelagos’ (1986) 29 German Yearbook of International Law 137, 145.
See arguments by JR Coquia, ‘The Territorial Waters of Archipelagos’ (1962) 1(1) Philippine International Law Journal 139, 155ff; JW Dellapenna, ‘The Philippines Territorial Water Claim in International Law’ (1970) 5 Journal of Law and Economic Development 45, 57.
L Lucchini and M Voelckel, Droit de la mer: La mer et son droit; Les espaces maritimes (Paris: Pedone, 1990) 381–2.
Rajan, ibid. 146.
Ibid., 15–6.
Official Records of the Second United Nations Conference on the Law of the Sea, (Committee of the Whole – Verbatim Records of the General Debate), p. 77.
Mochtar Kusumaatmadja, unclos iii, Official Records, vol. i, 187.
M Munawar, Ocean States, Archipelagic Regimes in the Law of the Sea, (Martinus Nijhoff Publishers 1995) 113.
See for example the inclusion of the Darwin and Wolf islands as part of the Galapagos. See US State Department, Limits in the Seas No 42 Straight Baselines: Ecuador (1972) 10.
See for example, the Norwegian arguments in the Fisheries case: ‘The Norwegian Government does not rely upon history to justify exceptional rights, to claim areas of sea which the general law would deny; it invokes history together with other factors, to justify the way in which it applied the general law’. Above (n 9) 133.
Ibid.
AR Farhan and S Lim, ‘Vulnerability assessment of ecological conditions in Seribu Islands, Indonesia’ (2012) 65 Ocean & Coastal Management 1–14; D Ferrol-Schulte et al ‘Coastal livelihood vulnerability to marine resource degradation: A review of the Indonesian national coastal and marine policy framework’ (2015) 52 Marine Policy 163–171.
Para vi of Declaration made when Ecuador Acceded to the Convention (24 September 2012). Emphasis added.
See losc, Part xii.
Kopela, ibid., chapter 3.
See Prime Minister’s Department Decree No. 156 of April 24, 1963. Available at
Statement of the Government of The Peoples’ Republic of China on the Territorial Sea Baselines for Diaoyu Dao and Its Affiliated Islands 10 September 2012. Available at
Declaration Of the Government of the People’s Republic of China on the Baseline of the Territorial Sea of the People’s Republic of China 15 May 1996.
Decree-Law No. 495/85 of 29 November 1985.
The Falkland Islands (Territorial Sea) Order 1989.
The Turks and Caicos Islands (Territorial Sea) Order 1989.
Supreme Decree No. 959-A on June 28, 1971 (Official Register No. 265 of July 13, 1971).
The Law amending the Territorial Sea and Maritime Zones Law (The State Peace and Development Council Law No.8/2008), 5 December 2008.
Regulations relating to the limits of the Norwegian territorial sea around Svalbard (Royal Decree of 1 June 2001).
Royal Decree No. 2510/1977 of 5 August 1977.
Article 1(3) of the Act on Indonesian Waters 1996.
A Miron, ‘The Archipelagic Status Reconsidered in Light of the South China Sea and Düzgit Integrity Awards’ (2018) 15(3) Indonesian Journal of International Law 306–340.
HW Jayewardene, The Regime of Islands in International Law (Martinus Nijhoff, 1990) 110.
Ibid., 16.