THE LEGAL STATUS OF MID-OCEAN ARCHIPELAGOS OF MAINLAND STATES UNDER INTERNATIONAL LAW: THE CASE OF THE GALAPAGOS

Abstract

This sui generis case unmasks the deficiencies of a ‘constitution of the oceans’ that fails to provide an equal framework to support the single unity of archipelagos and therefore safeguard their economic, security and environmental interests. Certainly, archipelagos were not prominently featured in the traditional forums for Law of the Sea issues, as they were usually overshadowed by more ‘urgent’ matters. In light of the exclusion of mid-ocean archipelagos of mainland states from the archipelagic regime of UNCLOS, this article undertakes the challenge of providing a legal answer to justify the practice of the straight baseline method to enclose waters surrounding the Galapagos Islands. It evaluates the negotiation process of the archipelagic regime of UNCLOS, and suggests that the Ecuadorian claim cannot be sustained under Part IV. Article 7 UNCLOS and the Fisheries Case are both addressed as alternatives, since they provide a possible legal foundation for the claim. Nonetheless, it is the special circumstances surrounding the Galapagos that sustains the Ecuadorian claim; the immemorial exercise of jurisdiction over the waters of the archipelago, the tolerance of neighbouring states, and the countless declarations from international bodies which provide a basis for a valid historic title.