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Analysis of the Archipelagic Doctrine in the New Convention on the Law of the Sea, by Jorge

Coquia

The Third UN Conference on the Law of the Sea finally approved the Convention of the Law of
the Sea on Apr. 30, 1982. The approval of the archipelagic doctrine is significant to the
Philippines, as it, along with Indonesia, espoused this doctrine since the first and second UN
Conference on the Law of the Sea.

Mid-Ocean Archipelagos

THE PROPOSAL. During the preparatory work for the First UN Conference (1958), the
Philippines and Indonesia submitted proposals to treat mid-ocean archipelagos as one whole
unit. In its position paper, the Philippines stated that all waters around, between and
connecting different islands belonging to the Philippine archipelago, irrespective of their width
or dimension are necessary appurtenances of the land territory forming an integral part of the
national or inland waters, subject to the exclusive sovereignty of the Philippines. The
Philippines maintained that its archipelago consists of a continuous chain of islands or islets in
such a way that baselines could easily be drawn between appropriate points on outer islands or
islets in such a way as to encircle the whole archipelago without crossing unreasonably large
expanses of water and without infringing on the principles stated in the Anglo-Norwegian case.
A rule that treated outlying archipelagos as a single unit and the waters lying between and
within the islands as internal waters was thus proposed.

INDONESIA also declared that an archipelago should be measured as a unit, and the territorial
sea measured from the baseline drawn between the outermost islands. Through a 1957
Proclamation, the Indonesian government enclosed its whole archipelago with one system of
baselines. But to treat all the 3000+ Indonesian islands as having its own territorial waters
would be problematic especially during war, i.e. wrt freedom of communication.

1960 SECOND CONFERENCE ON THE LAW OF THE SEA AT GENEVA, Indonesia introduced into
the records Act No. 4 of its President, indicating straight baselines encircling all the islands of
the archipelago and claiming all waters inside as internal. While the question of archipelagic
State was also raised in this Conference, no agreement was reach and hence no decision was
made on the position of archipelagos.

COMMENT OF PROF. FRANCOIS ON THE ISSUE: the territorial line for groups of islands should
be the line linking the outermost islands and that the waters within such lines are internal
waters. The only question was the maximum length of such lines.

Opinions of Jurists

C.J. COLOMBOS: the generally recognized rule appears to be that a group of islands forming an
archipelago should be considered as a unit and the extent of the territorial waters be measured
from the center of the archipelago. As to WON a group of islands form an archipelago is
determined by geographical conditions but it also depends in some cases on historical or
prescriptive grounds.

The Law of Territorial Waters and Maritime Jurisdiction

PHILIP JESSUP: archipelagos are considered as forming a unit and that the extent of the
territorial waters is measured from the land farthest from the center. He didnt propose a
maximum distance between the islands.
SWARZENBERGER: in case of islands forming a natural unit or archipelago, the establishment of
a territorial jurisdiction is necessarily a gradual process.
GIDEAL, in his Droit International Public de Lamer, accepts the view that archipelagos should be
considered as a unit and that the longer baselines may be justified on the theory of historic
waters.
PODESTA COSTA & DIAZ CISNEROS: groups of islands forming an archipelago should be
considered as a unit.
HYDE: an island in the high sea has its own territorial waters in marginal sea, measured three
marine miles outward therefrom in the same manner as from the mainland. Where, however, a
group of islands form a fringe or cluster along the ocean front of maritime State, it may be
doubted whether there is evidence of any rule of International Law that obliges such state
invariably to limit or measure its claim to the waters around them by the exact distance of each
unit.
HODGSON & ALEXANDER, in their Towards An Objective Analysis of Special Circumstance: Bays,
Rivers, Coastal and Oceanic Archipelagos and Atolls, considered the diversity of conditions
which could lead to a special regime for a mid-ocean archipelago.

Preparatory Work of the 3rd UN Conference

COMMITTEE. During its 23rd session, the UN GA adopted 4 resolutions: Res. 2467 A, B, C and D
(XXII) establishing the Committee on the Peaceful Uses of the Sea Bed and Ocean Floor Beyond
the Limits of National Jurisdiction. In GA Res. 2467 (XXIII), supplemented by Res. 2750 (XXV),
the Committees mandate was reaffirmed and its composition enlarged. The Philippines was
one of the 44 members.

SUB-COMMITTEES were later formed:
1. Sub-Committee I preparing draft treaty articles embodying the international regime,
including the international machinery for the Area and the resources of the sea bed, ocean
floor, and subsoil beyond the limits of national jurisdiction, taking into account the equitable
sharing by all States in their benefits.
2. Sub-Committee II preparing a comprehensive list of subjects and issues related to the
law of the sea and to prepare draft treaty articles thereon.
3. Sub-Committee III dealt with preservation of the marine environment and scientific
research to prepare draft treaty articles thereon.

POSITION OF ARCHIPELAGIC STATES. Sub-Committee II referred to the question of the special
position of archipelagic States in international law and to the various criteria which would
determine WON groups of islands constitute an archipelago. It stated that the unity of an
archipelagic state and the protection of its security, the preservation of its political and
economic unity, and the preservation and exploitation of its marine environment justified the
inclusion of the waters inside the archipelago under the sovereignty of the archipelagic State
and the grant of a special status to such waters. Also, it stated that this special status was an
emerging concept and might be settled as part of an over-all solution of problems relating to
the law of the sea.

Basic Principles of Archipelagic States

THE PRINCIPLE ON ARCHIPELAGIC DOCTRINE was submitted by the archipelagic States to the
Seabed Committee on 14 Mar. 1973. Arturo Tolentino, Chairman of the Phil. delegation, said
that the archipelagic concept is justified by the land, water and people inhabiting the island of
the archipelagic State.

THE PRINCIPLES:
1. An archipelagic state, whose component islands and other natural features form an
intrinsic geographic, economic and political entity, and historically have or may have been
regarded as such may draw straight baselines connecting the outermost points f the outermost
islands and drying reefs of the archipelago from which the extent of the territorial sea of the
archipelagic state is or may be determined.
2. The waters within the baselines, regardless of their depth or distance from the coast,
the seabed and the subsoil thereof, and the superjacent airspace, as well as all their resources,
belong and are subject to the sovereignty of the archipelagic state.
3. Innocent passage of foreign vessels through the waters of archipelagic State shall be
allowed in accordance with its national legislation, having regard to the existing rules of
international law. Such passage shall be through sealanes as may be designated for the purpose
by the archipelagic State.

BASIS OF THE PRINCIPLES: the unity of the land, water and people into a single entity. It is for
the purpose of achieving, maintaining, and preserving this unity that an archipelagic State is
conceived as one whose component islands and other natural features form an intrinsic
geographic, economic and political unity, and historically have or may have been regarded as
such. This interrelation of geography, economics, politics, and history is important.

An archipelago must be considered an integral geographical entity, strengthened by political
and economic unity and (sometimes) sustained through the years by historical continuity, from
which its identity is derived. The fundamental factor is that they must have always been
identified as distinct entities. These essential elements of unity are the bases for the
archipelagic States desire to preserve its identity as one, as many islands compose it, with the
consequent fragmentation of the nation. Due to this desire for unity, there should be an
international recognition of the right of archipelagic States to draw straight baselines
connecting the outermost points of the outermost islands and drying reefs of the archipelago
from which the extent of the territorial sea is or may be determined. Within such baselines the
waters, seabed, subsoil, superjacent airspace and their resources belong to and are subject to
the sovereignty and exclusive jurisdiction of the archipelagic State, following the accepted
principles on State sovereignty and jurisdiction. The third principle (on innocent passage)
reconciles and harmonizes the peculiar national interest of the archipelagic States and those of
the international community.

Objections to the Archipelagic Concept

OBJECTION OF MARITIME POWERS, LED BY THE US: most of the island groups claiming to be
archipelagic States lie astride some of the most important communication routes of the world
and are likely to enclose very substantial marine areas. These maritime states suggested
conditions for inclusion of the archipelagic doctrine in the Convention, like: a precise definition
and limitation of the area to prevent the enclosure of far-flung islands, along with great
expanses of water; a fairly reasonable land to water ratio; and maximum length of baselines.
These would insure compactness and a reasonable unity of island. Maritime powers also
insisted on the right of navigation and overflight through archipelagic water, since waters which
should have been high seas or at least territorial waters would then become internal waters,
curtailing freedom of navigation.

THE SECOND COMMITTEES SINGLE NEGOTIATING TEXT thus included the following provisions:
water area to land area ratio is fixed between 1:1 and 9:1; maximum length of baselines shall
not exceed 80 nautical miles; and baselines shall not depart to any appreciable extent from the
general configuration of the archipelago.

Geographic Features of the Archipelagic States

PRECISE DEFINITION OF AN ARCHIPELAGIC STATE : 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. THE PHILIPPINES: consists of 7100 islands, with a combined land area of 300,000 sq. km.
Water to land ratio is 5:1. The unity and compactness of this archipelago is clearly shown when
it is enclosed by straight baselines joining the outermost points. Under these baselines, total
area (including the water) is approximately 257,400 sq. miles and water to land ratio is
approximately 1.9:1. There are 80 baselines with a total length of 2772 nautical miles. Most are
relatively short, the longest being 2135 nautical miles.
2. INDONESIA: with 3000+ islands and total land area of 1.9 million sq. km. Its baselines are
over 8167.6 nautical miles, enclosing approximately 666,100 sq. nautical miles, including the
straits of Sunda, Sumba, Mollucca, and Macassar. Land to water ratio is 1:1.4. It has a very
strategic position as its archipelagic waters lie among the major shipping lanes between the
Middle East and Far East.
3. MAURITIUS: has a land area of 720 sq. m., and established straight baselines. But due to
great distances between islands, it might not qualify under the required land to water ratio.
One suggestion was to apply the system of straight baselines as to make this an archipelagic
state with several archipelagos.
4. FIJI: has 844 islands and islets, total land area of 7055 sq. miles. It is crossed by 2
important shipping lanes, the Nanaku Passage and the Kandayu Strait. It adopted the straight
baselines system but considers the waters within as territorial seas, thus innocent passage is
unrestricted. Its a party to the 1958 Conventions on the Territorial Sea and the Contiguous
Zone, High Seas, Fishing and Conservation of Living Resources, and Continental Shelf in 1971.
5. BAHAMAS: with 30 inhabited and uninhabited caves and rocks, and only 700 may be
classified as islands and the rest (more than 1000) as rocks. It proposed the system of straight
baselines, and water to land ratio is 9:1, with a maximum of 80 nautical miles of baselines.
6. PAPUA NEW GUINEA: legislated its archipelagic baselines and other maritime limits in
1978. The longest baseline is 120 nautical miles between the Northern terminus of the land
boundary between Papua New Guinea, Indonesia, and Wuwuvilu Islands.

Other territories where archipelagic baselines may be considered: Australia, New Hebrides,
New Zealand, Western Samoa, Solomon Island, and Tonga.

The Issue of Passage Through Archipelagic Waters

MOST PIVOTAL ISSUE: maritime powers claim of the right of unimpeded passage through
archipelagic waters and freedom of overflight over said waters. This contention runs counter to
the basic principle of an archipelagic state, that all waters within the baselines belong to and
are subject to the sovereignty of the archipelagic state, which extend to the airspace above the
waters and to the water column, seabed, subsoil, and all the resources contained therein. The
waters within the baselines (being integral parts of the archipelago) are distinct and separate
from those without, thus the archipelagic states rights over them should be greater than those
waters in the territorial sea.

INFORMAL NEGOTIATING TEXT: Art. 124 provided for the right of innocent passage through
archipelagic waters. Art. 125 allowed the archipelagic state to designate sealanes and sea
routes, and recognized the right of navigation and overflight in the normal mode for the
purpose of contiguous and expeditious transit through an archipelago. Example, normal mode
of transit of a submarine is via submerged passage, hence the passage under normal mode is
more liberal than the ordinary passage through territorial waters under the innocent passage
concept. Art. 124, par. 8 limited the archipelagic states right to designate sealanes or traffic
separation schemes by requiring it to refer the proposals to a competent organization, which
must concur with the archipelagic state. If there is no agreement between them, there will be
no designated sealanes or traffic separation schemes.

THE ARCHIPELAGIC STATES, to be consistent with the concept of sovereignty and to
accommodate transit vessels, agreed to grant innocent passage of foreign vessels through
designated sealanes suitable for safe and expeditious passage, though the archipelagic states
may restrict the passage of certain vessels. If they werent allowed to designate sealanes, then
the archipelagic waters would be open to foreign vessels, rendering the archipelagic doctrine
meaningless. In designating sealanes, archipelagic states must consider the recommendation or
technical advice of competent international organizations regarding the channels to be used.

A REVISED SINGLE NEGOTIATING TEXT, which reproduced all the provisions on archipelagic
state, was submitted. All States enjoy the right of innocent passage through archipelagic waters
in accordance with sec. 3, Chap. I of this Text. Archipelagic states may designate sealanes and
air routes for foreign ships and aircraft, which enjoy the right of archipelagic sea lanes passage
(this is the right of navigation and overflight in the normal mode for the purpose of continuous
and expeditious transit between one part of the high seas/EEZ and another part of the high
seas/EEZ. If no sea lanes/air routes were designated, this right may be exercised through routes
normally used for international navigation.

Objections of the Philippines to Some Provisions of the Revised Text

RE: PASSAGE THROUGH TERRITORIAL WATERS, there must be a distinction between the
passage of merchant ships and warships or vessels of special characteristics. The former may be
allowed innocent passage, the latter only upon prior notification and/or consent. A single
regime, that of innocent passage for normal or customary routes for international navigation,
was proposed.

INCONSISTENCIES. While archipelagic states may designate sea lanes, these must include
normal routes of passage for international navigation and be approved by a competent
international organization . If no sealanes were approved, then the routes normally used for
international navigation will be the sea lanes. BUT for the territorial sea, the coastal State is free
to designate sea lanes without the approval of any organization.

NUKES. Under Art. 21, for the territorial sea, coastal states may require tankers, ships bearing
nuclear weapons/inherently dangerous or noxious substances to confine their passage to
sealanes. This right isnt given to archipelagic states. Also, Art. 22 requires these vessels, when
exercising innocent passage through territorial sea, to carry documents and observe special
precautionary measures. Again, no such provision for archipelagic states.

THE REVISED TEXT imposed more limitations on the sovereignty of the archipelagic State over
its waters, which is a legal anomaly. The reverse should be the case, since territorial seas are
outside the baselines and not an integral part of the State.

The Informal Composite Negotiating Text

THIS TEXT, produced during the 3rd UN Conference, continued to recognize archipelagic states
which may constitute one or more archipelagos and may include other islands.

DEFINITION OF ARCHIPELAGIC STATE : with all waters around, between, and connecting the
islands irrespective of their breadth and dimensions forming part of the internal waters of the
Philippines.

WRT BASELINES, the ICNT stated that archipelagic states may draw straight baselines joining
the outermost points of the outermost islands and drying reefs of the Archipelago provided
that within such baselines are included the main islands and an area in which the ratio of the
are of the water to the area of the land, including atolls, is between 1:1 and 9:1, and the length
shall not exceed 100 nautical miles. The breadth of the territorial sea, contiguous zone,
exclusive economic zone, and continental shelf shall be measured from such baselines.

AFTER REVISIONS, THE ICNT was converted to the Draft Convention on the Law of the Sea. After
still more revisions, the Draft Convention was finally approved on Apr. 30, 1982 on the last day
of the 11th session of the Conference.

The Juridical Status of the Archipelagic State

CONTENTS OF THE DRAFT CONVENTION. The definition of archipelagic state and the right of the
state to draw straight baselines were reiterated. Also reiterated the provisions on designation
of sea lanes and the definition of archipelagic sea lanes passage.


SEA LANES shall be defined by a series of continuous axis lines from the entry points of passage
routes to the exit points. Ships and aircraft in archipelagic sea lanes shall not deviate more than
25 nautical miles to either side of such axis lines during the passage, provided that ships and
aircraft shall not navigate closer to the coasts than 10% of the distance between the nearest
points on islands bordering the sea lanes.

TRAFFIC SEPARATION SCHEMES may be prescribed by the archipelagic State. Sea lanes and
traffic schemes shall conform to generally accepted international regulations which shall be
referred to the competent international organization. The organization may adopt only such
sea lanes and traffic separation schemes as may be designated by the archipelagic state. If none
is designated, passage may be exercised through the routes normally used for international
navigation.

Some Observations on the Provisions on Archipelagic States

ON SOVEREIGNTY. While sovereignty over the enclosed waters, airspace, seabed and subsoil
are recognized in Art. 49, this sovereignty is more limited than that over territorial waters.
a. Art. 52: all ships, without distinction, shall enjoy the right of innocent passage through
archipelagic waters in accordance with the provisions on innocent passage in territorial waters;
this is innocent passage through the normal/customary routes of navigation.
Art. 53: wrt power to designate air routes and sea lanes, these shall include all normal passage
routes used as routes for international navigation or overflight. There will thus be 2 regimes of
passage innocent passage similar to that in territorial waters, and the archipelagic sea lanes
passages which is a free transit of foreign vessels.
b. Also remember the need to refer to the competent international organization wrt
designation of sea lanes passage, which isnt found in the case of territorial waters.

PHILIPPINES PROPOSED AMENDATORY PROVISIONS to distinguish the passage of warships,
nuclear powered vessels, and those carrying nuclear/dangerous materials . The Draft
Convention had no such distinction wrt right of innocent passage. It was also proposed that the
archipelagic state be given the power to promulgate such laws and regulations for the passage
of warships, nuclear powered vessels, and those with nuclear/dangerous material. These
amendments are particularly significant to an archipelagic state, like the Philippines, with very
narrow passages (i.e. dangers to the security of the state).

The Archipelagic States and the Straits-States Proposal

DUE TO OBJECTIONS FROM MARITIME POWERS, who insisted on the unimpeded passage
through archipelagic waters, some archipelagic states took the position that states have the
right to designate sea lanes for warships and vessels of special characteristics. In the interest of
international navigation the straits states offer innocent passage of commercial vessels through
designated sea lanes. This led to the 8-point proposal of draft articles of navigation through the
territorial sea including straits used for international navigation.

Conclusion

From the start of the 3rd UN Conference on the law of the sea, the maritime powers objected
to the archipelagic doctrine as it limited the mobility of their naval vessels. Though they
eventually accepted it, this acceptance was half-hearted as they introduced so many limits (i.e.
water to land ratio, max. length of baselines, passage and overflights). Even the regime of the
archipelagic waters was treated differently. While archipelagic principles considered the waters
inside the baselines as internal waters, the opposition coined the word archipelagic waters to
distinguish the regime over such waters. This distinction is clear in the Convention which makes
the regime of waters, wrt jurisdiction of the archipelagic states, more liberal than territorial
waters.

The archipelagic states also werent united during the negotiations. Except for the Philippines,
they abandoned the principle that waters within the baselines (regardless of depth or
distances) are internal waters and subject to the archipelagic states sovereignty.

While the archipelagic doctrine is now recognized, the regime of the archipelagic state over its
waters has been curtailed. Sovereignty of the archipelagic state over the enclosed (internal)
waters is recognized by this is limited especially wrt passage and oveflight of military vehicles.
The Convention assured the unimpeded passage of all kinds of vessels. Aircraft in transit
passage will observe the rules established by the International Civil Aviation Organization.
During transit passage, foreign ships (including marine scientific research and hydrographic
survey ships) may not carry out any research or survey activities without the prior authorization
of the archipelagic state.