Archipelagic States

Abstract

According to a 2018 count, there are twenty-two states that claim archipelagic state status. It was only after the independence of the Philippines and Indonesia at the end of the Second World War, when both countries made unilateral claims during the 1950s, that the demand for a specific regime for archipelagic states became articulated. Third states wanted to retain their navigational rights in archipelagic waters for economic and military purposes, while the archipelagic states wanted to claim these archipelagic waters as internal waters, following the swift development of the concept of coastal archipelagos after the 1951 judgement of the International Court of Justice through the creation, and codification a few years afterward, of the notion of straight baselines. The concept of an archipelagic state was only incorporated in the 1982 United Nations Convention on the Law of the Sea (1982 LOSC), after nine years of negotiations on this issue during the Third United Nations Conference on the Law of the Sea (UNCLOS III, 1973–1982), of which the first session was totally devoted to procedural matters. At the First United Nations Conference on the Law of the Sea (UNCLOS I, 1958) and during its preparatory work undertaken by the International Law Commission (ILC, 1949–1956), the Special Rapporteur J. P. A. François already developed the concept of a group of islands or archipelagic states in 1953. States were, however, unable to find common ground because the concept at that time. Especially the legal nature of the waters on the inside of the archipelago proved to be elusive. It was consequently deleted from the ILC draft and even though specific proposals were introduced during UNCLOS I and II (1960) on this issue, neither conference reached any conclusion on the matter. The issue was picked up again during the work of the Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits of National Jurisdiction (Sea-bed Committee) in 1971, which prepared the agenda for UNCLOS III. At UNCLOS III, the debate after a while (1976) totally narrowed down to mid-ocean archipelagic states, dashing the hopes of continental states, sometimes referred to as mixed states, to see their mid-ocean “archipelagos” included in the system being elaborated at that time. In the early 21st century, the provisions of Part IV of the 1982 LOSC determine the regime of archipelagic states in international law of the sea and can be considered as progressive development of international law. Never before had such a concept been written down in an international treaty. Due to the package-deal approach, a balance of interests can clearly be found in these provisions. New concepts are created such as archipelagic states, archipelagic baselines, and archipelagic sea-lanes passage, all of which are being carefully defined in the 1982 LOSC.