1

Dependent Archipelagos in the Law of the Sea

General Editors: Vaughan Lowe and Robin ChurchillPublications on

Ocean DevelopmentVolume 74

The titles published in this series are listed at brill.com/poodA Series

of Studies on the International, Legal, Institutional, and Policy Aspects
of Ocean Development

IntroductionI. Archipelagos, the Archipelagic Concept and

the Law of the Sea Convention The word archipelago,
etymologically deriving from the Greek words ‘arkhin’ (αρχήν meaning
chief, principal) and ‘pelagos’ (πέλαγος meaning the sea), was originally
used in Italian as ‘arcipelago’ to denote the Aegean Sea.1 This sea-
based concept was evident in the initial meaning of the word as a ‘sea
studded with islands’.2 This meaning has evolved over time and the word
archipelago is, nowadays, commonly used for a group or chain or cluster of
islands.3 The initial definition of the word archipelago reflects, however,
the basic attribute of this geographical feature, namely the close association
and interdependence between the land and the sea. In this sense, the sea
cannot be seen as an element separat-ing the islands, as one would expect, but
as one connecting them.This interdependence between the land and the
sea was considered to merit special protection in the law of the sea. In
particular, it was thought that archi-pelagos present exceptional
circumstances justifying a deviation from the tradi-tional rule that provided
for the measurement of the territorial sea from the coast of each individual
island.4 Various reasons were advanced as the justification for the
special treatment of archipelagos in international law. Geographic reali-
ties, particularly the fact that archipelagos are encircled and penetrated
by the sea, and that they form a natural geographical and
geomorphologic unity, were invoked as the main reason justifying a special
treatment for archipelagos. These geographic characteristics were
interlinked with economic considerations, 1 The word ‘archipelago’
(αρχιπέλαγο) does not occur in ancient or Medieval Greek and is consid-ered a loan from
the Italian compound. See The Oxford English Dictionary (2nd ed.) prepared by J.A.
Simpson & E.S.C. Weiner (Oxford: Clarendon Press, 1989). In the Collins English
Dictionary it is suggested that the Italian word ‘arcipelago’ may have been originally used
as a mistranslation of the Greek Aigaion pelagos (in Latin Egeopelagus); the Oxford
English Dictionary suggests that this is unlikely.2 See S. Mayhew, Oxford Dictionary
of Geography (Oxford: Oxford University Press, 2004); T. & A. Goudie, The
Dictionary of Physical Geography (Oxford: Blackwell Publ., 2000).3 Ibid.4 See R.D.
Hodgson, ‘Islands, Normal and Special Circumstances’ (Department of State
Research Study, 1973), p. 28 et seq.; R.D. Hodgson and L.M. Alexander: Towards an
objective analysis of special circumstances, Occ. Paper No. 13 (Law of the Sea
Institute, University of Rhode Island, 1972), p. 45.
 2

2Introductionparticularly the dependence of the archipelagic population

on the marine resources, and with concerns related to the protection of
the archipelago from security and pollution threats.5 The solution
suggested to address these prob-lems was based on a unitary concept
according to which both the land of the islands and the inter-insular
waters would be considered as a unified whole. This objective would be
attained through the use of straight baselines joining the outermost
points of the archipelago. The maritime zones would be measured from
these baselines and the enclosed waters would have a uniform regime
where the state would exercise sovereignty.The main problem for the
recognition of the archipelagic concept in the law of the sea concerned
the fact that its application was in apparent opposition to the interests of
maritime powers regarding freedom of navigation and other uses of the seas.
The rules of the international law of the sea are the product of a con-tinuing
conflict between states’ interests, which is reflected in the antagonism
between the principles of mare clausum and mare liberum. The archipelagic
con-cept is a manifestation of the former principle as it aims at excluding third
states’ vessels from the waters of the archipelago,6 reducing thus the
area of the high seas where various freedoms normally apply.Proponents of
the archipelagic concept further encountered the problem of rendering
into legal terms the geographic particularities presented by the various types
of archipelagos.7 Whereas exceptional geographic realities were the raison
d’être of the archipelagic concept, geography composed also one of the
main reasons impeding its acceptance by the international community. It
is true that archipelagos take various forms being composed of small,
large, few or many islands of different origin, i.e. volcanic, coral, rocky,
being arranged in different patterns, and located close to the mainland
coast or further away in the sea.8 5 These reasons are further explored in Chapter
1, pp. 28–29.6 Marston mentions that Selden, the famous author of the seventeenth
century classic Mare Clausum, would approve the enhanced jurisdiction within and
around a group of islands; G. Marston, ‘International Law and Midocean Archipelagos’,
4 Annales d’ Etudes Internationales(1973), p. 171. 7 Characteristically, Gidel stated that
‘la notion juridique d’archipel est . . . d’une construction extrêmement difficile et peut-
être même impossible’, G. Gidel, Le Droit International Public de la Mer: Le Temps de
Paix de la mer, T. III: La Mer Territorial et la Zone Contigue (Paris: Sirey, 1934),
p. 707; see also S.W. Boggs, ‘Delimitation of the Territorial Sea’ 24 AJIL (1930), p. 541;
R.D. Hodgson & L.M. Alexander (1972), p. 45: ‘outlying archipelagos are more
difficult to handle, first because they exhibit such a wide variety of physical
conditions and second because it may be very dif-ficult to decide the conditions under
which they merit a special juridical regime’.8 M. Munavvar, Ocean States: Archipelagic
Regimes in the Law of the Sea (Dordrecht: Martinus Nijhoff Publ., 1995), p. 5; See
Bowett for the variety of forms of ‘oceanic’ archipelagos: D.W. Bowett, The Legal
Regime of Islands (New York: Oceana Publications Inc, 1979), pp. 90–7; L. Luc-chini &
M. Voelckel, Droit de la mer: La mer et son droit; Les espaces maritimes (Paris:
Pedone, 1990), pp. 357–8; see also R.D. Hodgson (1973), p. 6
 3

Chapter OneThe Development of the Archipelagic Concept in International

Law of the Sea: From Straight Baselines to the Archipelagic Regime of the
Law of the Sea Convention1.1 IntroductionTheoretical preoccupations
concerning the question of the delimitation of the territorial sea of
archipelagos, both coastal and outlying, go back to the end of the
nineteenth century. Various learned legal societies showed an interest in
this issue in their attempts to codify the rules governing the law of the
sea. The International Law Association, the American Institute of
International Law and the Harvard Research in International Law discussed –
albeit in a cursory way – the issue of applying a method different from
the traditionally envisaged of the low-water mark for the delimitation of
the territorial sea of groups of islands. The initial proposals endorsing the
unitary approach referred to the application of straight baselines around
groups of islands on the condition that the distance between the islands of
the group would not exceed double the breadth of the territorial sea.1The
issue of the delimitation of the territorial sea of groups of islands was
included in the agendas of the 1930 Hague on the codification of
international law and the 1958 Geneva Conference on the Law of the
Sea. The solution sug-gested concerned the application of straight
baselines joining the outermost points of the islands, and the internalisation
or territorialisation of the enclosed waters. Nevertheless, no conclusion
could be reached due to divergence in the positions of states as well as
due to implications caused by the wide variety of the geographical
particularities of archipelagos.The Judgment of the International Court of
Justice in the Fisheries case became a catalyst for developments concerning
coastal archipelagos. The First UN Con-ference on the Law of the Sea
(UNCLOS I) adopted Article 4 TSC which provided for the application of
straight baselines in localities where there is a ‘fringe of 1 The breadth of
the territorial sea was also an issue of dispute among states and various proposals had been
advanced ranging from 3 n.m. to 10 n.m.
12Chapter Oneislands along the coast in its immediate vicinity’. This was
considered to provide a special regime for coastal archipelagos. A further shift
in international law was realised during the Third UN Conference on the
Law of the Sea (UNCLOS III), which adopted a special protective regime
for archipelagic states.This chapter examines the evolution of the archipelagic
concept from its first inclusion in the agenda of international institutions
to the consolidation of a special system for the delimitation of the
territorial sea of coastal archipelagos, and finally to the adoption of Part IV
of the LOSC on archipelagic states. In par-ticular, the first part of the
Chapter analyses proposals and negotiations which led to the adoption of
article 4 TSC. The second part focuses on the travaux preparatoires of
UNCLOS III with a view to highlighting the conflicting state interests
and to identifying the reasons which led to the exclusion of dependent
outlying archipelagos from the archipelagic regime prescribed in the LOSC.
The objective of this chapter is to identify how the archipelagic concept
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has influ-enced developments in international law of the sea, and to assess to

what extent the LOSC has satisfactorily dealt with the archipelagic
problem.1.2 Proposals and Evolution of the Archipelagic Concept Prior
to the Third UN Conference on the Law of the Sea A. Early
Proposals Regarding the Treatment of Archipelagos in International
LawArchipelagos were not treated as a distinct matter but as part of the debate
related to the measurement of the territorial sea in early attempts for the
codification of the law of the sea. Learned societies and legal scholars were
divided on whether a special system for the delimitation of the maritime
zones of groups of islands was required.2 Some private institutions and
legal scholars favoured the unitary concept in the treatment of
archipelagos and suggested that the territorial sea was to be measured
from straight baselines encircling the outermost islands of the group. The
distance between the islands was an issue under discussion with 2 The
International Law Association and the Harvard Law School were reluctant to accept
a spe-cial system; see ILA Report, 33th Conference 1924, Stockholm (London: Sweet
& Maxwell, Ltd 1925), p. 259 et seq.; similarly ILA Report, 34th Conference 1926,
Vienna (London: Sweet & Maxwell Ltd, 1927), p. 40 et seq. For the Harvard Law
School approach see: 23 AJIL, Special Suppl., 1929, Draft Convention on Territorial
Waters, pp. 287–288. However, the Draft Convention on Ter-ritorial Waters included a
provision (article 11) titled ‘Assimilation of small areas to marginal sea that could be
implemented in the case of a group of islands’; in particular, this article provided
that if the delimitation of the marginal sea resulted in leaving a small area of high
seas totally surrounded by the territorial sea of a single state, such area would be
assimilated to its territorial sea. This provision could lead to the territorialisation of
pockets of high seas located inside an archipelago without the use of straight baselines.

Chapter TwoThe Application of Straight Baselines on the Basis of Article 7

LOSC and State Practice: Implications for Coastal Archipelagos2.1
IntroductionArticle 7 LOSC has no reference to coastal archipelagos. It
provides for the use of straight baselines in localities where there is a
‘fringe of islands along the coast in its immediate vicinity’. It has been
suggested that this provision can provide a viable solution for coastal
archipelagos. However, this is not without problems. Not only because the
terminology used in this article does not seem to be in accord with the
archipelagic concept, but also because the application of this article is
ingrained with uncertainties.The imprecise requirements stipulated in article 7
and the absence of numeri-cal conditions, such as those prescribed for
archipelagic states, have created impli-cations for its interpretation and
application in state practice. Various authors and the UN have interpreted
the provisions of this article in a rather ‘strict’ way ensuring that the
geographic particularities of an exceptional coast justifying the application of
a special system of baselines are present. On the contrary, most states
have been quite liberal in their interpretation of the conditions and the
actual application of such a system in their coasts. This liberal
application of the rules of article 7 by states has been criticised by authors as
 5

inconsistent with the LOSC,1 but has attracted little attention by other
states, with the exception of the US, which has been consistent in its
objections against straight baselines allegedly incompatible with article 7
and also reluctant to apply straight base-lines in its coasts.2Uncertainty in
the application of article 7 derives not only from its imprecise
requirements and conditions, but also from the ambiguity concerning its
purpose and objective. This chapter reviews the conditions specified in
article 7 LOSC 1 See for example M.W. Reisman & G.S. Westerman (1992), pp.
118–190. J.R.V. Prescott in E.D. Brown & R.R. Churchill (eds.) (1987), p. 297. 2 See
J.A. Roach & R.W. Smith (2012), pp. 72–133. See also the publications of the US
Department of State (Office of the Geographer, Bureau of Intelligence and Research) Limits
in the Seas Series.
54Chapter Twowith regard to the application of straight baselines in
‘fringes of islands along the coast in its immediate vicinity’ in the light of
academic literature and current state practice. It discerns specific approaches
in state practice with regard to the application of straight baselines based on
the purpose of such application. It fur-ther assesses the implications arising
from the application of article 7 to coastal archipelagos and examines the
compatibility of instances of state practice in coastal archipelagos with
article 7. Finally, it assesses the impact of state practice upon the
interpretation and application of article 7 of the LOSC. 2.2 Article 7 LOSC
and Application of Straight Baselines in Localities where there is a
‘Fringe of Islands along the Coast in Its Immediate Vicinity’ A.
Rationale and Objectives for the Application of Straight Baselines to
‘Fringes of Islands’The rationale for the application of straight baselines
is principally based on geography, particularly on the fact that the coast
presents such geographic par-ticularities that a system different from the
low-water mark is necessitated.3 The reasons why such a system is
necessary are diverse. It has been suggested that straight baselines
function as a rationalisation technique in order to eliminate complex
patterns and to simplify and ‘smooth out’ the inner and outer limit of the
territorial sea.4 Scovazzi points out that ‘nature cannot be made over
changing in a radical way the shape of a state. What is allowed is to rectify by
a geometri-cal device a manifestly irregular coastline. To simplify
without altering. That is the philosophy of the straight baselines method’.5
Complexities created by deep indentations of the coast and the existence of
islands could lead to the inner and outer limit of the territorial sea having the
form of irregular zigzags which would 3 Fisheries case,ICJ Reports 1951, p. 139:
‘The Court is thus led to conclude that the method of straight lines, established in
the Norwegian system, was imposed by the peculiar geography of the Norwegian
coast’.4 In discussions preceding and during the 1930 Hague Conference on
International Law, geogra-phers noted the implications from the use of the low-water mark
following the sinuosities of the coast; see S.W. Boggs, ‘Delimitation of the Territorial
Sea: the method of delimitation proposed by the delegation of the US at the Hague
Conference for the Codification of International Law’ 24 AJIL (1930) 541; also S.W.
Boggs, ‘Delimitation of seaward areas under national jurisdiction’ 45 AJIL (1951),
 6

240 at 245. See discussions in the ILC: Summary Records, 257th Meeting of the
YBILC (1954), para. 24, p. 74; 255th Meeting [1954] 1 YBILC 68 UN Doc
A/CN.4/SER.A/1954. Also J.A. Roach & R.W. Smith (2012), p. 59. It is argued by Prescott
and Schofield that the rationalising effect refers mostly to the territorial sea, as a radius of
200 n.m. from a basepoint ‘would smooth-ened out even the most complicated coasts’; V.
Prescott & C. Schofield (2005), p. 142.5 T. Scovazzi (1999), p. 447

Chapter ThreeDependent Outlying Archipelagos: Straight Baselines, the

LOSC and State PracticeIn establishing a special regime on archipelagos . .
. due attention should be given to existing state practice on the matter. One
cannot escape the feeling in considering the possibilities of devising new rules
on the regime of outlying archipelagos, that one is engaging in patchwork.M.
Kusumaatmadja ‘The Legal Regime of Archipelagos: Problems and Issues’, 1973
3.1 IntroductionOne of the problematic aspects in the treatment of outlying
archipelagos in inter-national law concerns their ‘wide range of
geographical, physical attributes’.1 Archipelagos as geographical features
take various forms, being composed of islands small or large, few or many
and being arranged in different patterns. For example, the Faroe Islands,
composed of islands located at close distances to each other, bear no
resemblance with the sparsely scattered islands and coral reefs of the
archipelago of French Polynesia. Similarly, the Galapagos Islands
composed of similarly sized islands are different from the Kerguelen
Islands, where one large island dominates the archipelago.Geography plays a
critical role in the treatment of archipelagos in interna-tional law. The
distinction of archipelagos on the basis of their size or preferably on the basis
of the maritime space they cover, as presented by Dubner, is use-ful
for the examination of the practice of states in their outlying
archipelagos. Archipelagos may take the following forms: (1) The islands are
scattered, at random, over a radius of more than twice the breadth of the
territorial sea and are not grouped together in any particular pattern. In this
situation, there occurs wide areas of high seas between the islands. 1
D.W. Bowett (1979), p. 90.
100Chapter Three(2) The islands are not scattered over a large distance.
Instead, they are grouped together, at random, with smaller areas of high
seas flowing between the islands.(3) There is one large mainland-type
island with a few islands located within a close proximity both to the
large island and to the other fringe islands. In this situation, the total
square miles of high seas flowing between all of the islands is less than
the total square miles of inland mass.2Other authors draw a distinction
between outlying archipelagos dominated by one or two large islands
and archipelagos with similarly sized islands3 without though recognising
any further classification in the latter category between broadly-scattered
and closely-knit archipelagos. As it will be shown from the analysis of
this Chapter, states have not treated outlying archipelagos in the same way. In
fact, states have applied straight baselines to archipelagos composed of
islands lying at close distances, whereas they have refrained from
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applying any special regime to dependent archipelagos which are widely

scattered in a broad maritime area. This Chapter examines the potential
application of articles 7 and 10 to out-lying archipelagos in order to
ascertain the extent to which these provisions may provide a solution
for these archipelagos. It further examines and assesses the practice of
states in their outlying archipelagos taking into consideration the
implications occurred by the great variety of archipelagic formations and
particularly the classification of archipelagos on the basis of their
geographic particularities as presented above. 3.2 Potential Application of
Straight Baselines on the Basis of the Law of the Sea
Convention to Dependent Outlying ArchipelagosA. Article 7 of the
LOSC: ‘Fringes of Islands’ and Outlying ArchipelagosArticle 7 LOSC
provides for the application of straight baselines in localities where there
is a fringe of islands along the coast. This provision is coast-based 2
B.H. Dubner (1976), pp. 67–8. With regard to the third category he points out that
‘the total square miles of high seas flowing between all of the islands is less than
the total square miles of inland mass’. 3 M. Munavvar (1995), p. 6. Similarly,
Narokobi refers to ‘the geographically insular archipelago’ and he suggests as examples
the UK, Iceland, Denmark with regard to Sjaelland and Greenland, Cuba, Dominican
Republic, Haiti and Papua New Guinea. C.S.N. Narokobi in J.M. Van Dyke, L.M.
Alexander & J.R. Morgan (eds.) (1988), p. 221. From the examples mentioned by
Narokobi, the Dominican Republic and Papua New Guinea have claimed archipelagic
baselines, whereas the other states have applied straight in their coasts.

Chapter FourLaw-Creating Value of the Practice of States in Outlying

Archipelagos with an Emphasis on Customary International Law4.1
IntroductionState practice is an important element in the formation and
development of international law of the sea. In the pre-LOSC era, state
practice was a cata-lyst for change both as an important source for
codification purposes, and for the creation and crystallisation of
customary law. The practice of archipelagic states contributed to the
advancement and adoption of the archipelagic concept during UNCLOS III.
However, even before the adoption of the archipelagic regime of the
LOSC, international law was in the process of developing. As noted by
Kwiatkowska and Agoes, ‘Part IV of the LOSC establishing archipe-
lagic state regime is neither totally old (declaratory) nor totally new
(generat-ing), but seems to belong to a medium category of treaty rules
which crystallise customary law in process of formation’.1 The emerging
customary international law before the adoption of the LOSC concerned
equally archipelagic states and dependent archipelagos since such
distinction had not been suggested prior to the UNCLOS III
negotiations. The question which arises therefore is whether the practice
of states in their outlying archipelagos, as presented and analysed in
Chapter 4, has contributed to the development of customary law related
to the application of a special system for the delimitation of the maritime
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zones of outlying archipelagos. This Chapter assesses the law-creating

value of this practice and its impact on developments in international
law of the sea related to outlying archipela-gos. It first appraises the
general relationship between the LOSC and customary international law and
their specific relationship on the topic of outlying archi-pelagos. It then
assesses the practice of states as presented in Chapter 4 in order to determine
whether customary law has evolved providing for a special regime 1 B.
Kwiatkowska & E.R. Agoes (1991), p. 55. The archipelagic regime of the LOSC
has been found as forming part of customary international law; see R.R. Churchill
and A.V. Lowe(1999), p. 129; B. Kwaitkowska & E.R. Agoes (1991), pp. 55–9.
150Chapter Fourfor dependent outlying archipelagos. In particular, this chapter
assesses the prac-tice of continental states applying straight baselines for
the delimitation of the maritime zones of their outlying archipelagos, their
beliefs regarding the legality of their actions (opinio juris), and the
reaction of the states of the international community vis-à-vis this practice.
4.2 The Development of Customary International Law Related to
Outlying Archipelagos and the LOSC A. The LOSC and Customary
International Law: Interrelations and InteractionsAccording to article 38 of
the Statute of the International Court of Justice, ‘inter-national Conventions,
whether general or particular, establishing rules expressly recognised by the
contesting states’ as well as ‘international custom, as evidence of a general
practice accepted as law’ are recognised as equally important sources of
international law. This provision does not set out a hierarchical2 but a comple-
mentary relationship between these sources. These two sources have been
found to interact in a variety of ways with respect to international law of the
sea.3 What is important, however, for the present study, is the effect that a
rule of customary law may have upon the provisions of a treaty. This effect is
rather uncertain, due to the lack of an explicit provision in the Vienna
Convention on the Law of Trea-ties with regard to the termination or
modification of an existing treaty provision by supervening customary law.4 2
M. Bos, ‘The hierarchy among the recognised manifestations (sources) of
international law’ 3 Netherlands International Law Review (1978), p. 338. 3 It has been
suggested that the LOSC has codified already existing customary international law
and contributed to the creation of new rules of customary law. See R.R. Churchill
& A.V. Lowe (1999), p. 24. Also R. Bernhardt (1987), pp. 282–319, where he examines
the relationship between the LOSC and customary international law with regard to
specific fields such as baselines, the territorial sea, the continental shelf etc. See also
L.T. Lee, ‘The Law of the Sea Convention and Third States’, 77 AJIL (1983), pp.
542–3, 561 et seq.; J. King Gamble & M. Frankowska, ‘The 1982 Convention and
customary law of the sea: observations, a framework and a warning’ 21 San Diego
Law Review (1984), p. 492. In general for the relationship between treaties and
customary law, see M.E. Villiger, Customary International Law and Treaties
(Dordrecht: Martinus Nijhoff Publ, 1985), pp. 38–41. See also M. Mendelson, ‘The
ICJ and Sources of International Law’ in V. Lowe & M. Fitzmaurice, Fifty years of the
International Court of Justice (Cambridge, Cambridge University Press, 1996), pp. 72–79
who discusses the relation between treaty and custom with reference to the North Sea
Continental Sea cases. See also Case Concerning Military and para-military Activities
 9

in and against Nicaragua (Nicaragua v. United States of America, Judgment of 27 June

1986, Merits) ICJ Reports, para. 179.4 During the discussions of the ILC with regard
to the draft Convention on the Law of Treaties the following provision was proposed:
‘The operation of a treaty may also be modified . . . (c) by the subsequent emergence of a
new rule of customary law relating to matters dealt with in the

Chapter FiveThe Archipelagic Concept and Special Customary and

Historic Rights: Three Case Studies5.1 IntroductionThe systems applied
in the Faroe and Galapagos Islands for the measurement of the territorial
sea are the ‘oldest’ manifestations of the archipelagic concept in international
law. Before the archipelagic states advanced their claims, Denmark and
Ecuador respectively were the main advocates of an archipelagic system
for their outlying archipelagos, and they treated the archipelagos as a
compact whole for the delimitation of the maritime zones. These states
were also vocal in the advancement of similar arguments during UNCLOS
III.Similarly supportive of the archipelagic concept during UNCLOS III
was Canada. In its submissions during the negotiations Canada referred to
itself as an archipelagic state stressing the significance of the Canadian
Arctic archipelago.1 Canada has applied straight baselines encircling the
archipelago and considers the enclosed waters as internal waters of the
state. The official claim of Canada is that the straight baseline system
delineates the historic waters of Canada. The melting of the ice in the
Canadian archipelago and the potential increase of the use of the North-
Western Passage for navigation has revived the interest regarding the
status of the waters of the Arctic Archipelago and the Canadian historic
waters claim.This chapter examines the validity of the straight baselines
systems in the Galapagos and Faroes on the basis of the existence of
special customary law related to the right to draw straight baselines and
consider the waters as inter-nal. It should be noted that these states
have not claimed the application of an exceptional regime, but the
application of straight baselines in conformity with international law.
Since state practice at this stage was found to lack generality for the
ascertainment of the emergence of customary law referring to outlying 1
Canada lent its support to the application of the archipelagic regime to archipelagos
belonging to coastal states (see Chapter 1, p. 31); the Canadian delegate also pointed out
that ‘Canada itself was an archipelagic states, and the Arctic Archipelago was a
classic example of a special area requiring special treatment’; Official Records,
UNCLOS III, Vol. 1, 27th Meeting, para. 23.
192Chapter Fivearchipelagos, the straight baselines systems applied to the
Faroe and Galapagos Islands are examined with the view to ascertaining
the existence of special cus-tomary rules related to their validity. This
chapter also analyses and assesses the Canadian claim to historic waters of
the archipelago. To this effect, the systems applied by these states, their
enforcement and their statements are scrutinised. Of equal importance for
the ascertainment of their validity in international law is the position of
other states vis-à-vis these systems.Despite the fact that this chapter
 10

examines these cases as forming part of exceptional rights, it also

purports to highlight their similarities in a threefold way: common
geographical characteristics, similar application of straight base-lines and
rationale for the adoption and application of a straight baseline system. A
central element in all these applications is how historic rights or special
cus-tomary international law can provide a solution for the archipelagic
principle, and how the latter can have an impact on considerations
regarding the ascer-tainment of historic rights or special customary
international law.5.2 Some Introductory Remarks on Special
Customary/Historic RightsUncertainty with regard to developments in
international law and the status of customary law cannot negate the
validity of specific instances of state practice. As noted by Brownlie, ‘if
the process is slow and neither the new rule nor the old have a
majority of adherents then the consequence is a network of special
relations based on opposability, acquiescence, and historic title’.2
Opposabil-ity governs the relationships of two states on the basis of the
acceptance of a certain factual and legal situation normally the usage or
claim of a state.3 This may be regarded either as a tacit or implicit
agreement (unless there is explicit acceptance), or may give rise to
estoppel.4 In this respect, a network of separate relationships will be created
based on acceptance of this regime by other states. The notion of opposability
is related to the establishment of historic rights; it has been suggested that
historic rights function in a subjective way ‘through express 2 I. Brownlie
(2008), 12.3 In the Fisheries Jurisdiction case, the ICJ found that regardless of the validity
of the rule in inter-national law, the extension of fisheries jurisdiction by Iceland was not
opposable to the UK and Germany; FisheriesJurisdiction cases, ICJ Reports 1974, pp.
29 and 198 (respectively). See Judge Waldock’s separate opinion: the extension of
fisheries jurisdiction was not ‘opposable to another state unless shown to have been
accepted or acquiesced in by that state’, ibid., para. 35, p. 120.4 See I. Sinclair, ‘Estoppel
and acquiescence’ in V Lowe and M Fitzmaurice (eds.), Fifty Years of the
International Court of Justice: Essays in honour of Sir Robert Jennings (CUP, 1996)
109–10. D.W. Bowett, ‘Estoppel before International Tribunals and its relation to
acquiescence’ 33 BYIL (1957), p. 176. J. Müller and T. Cottier, ‘Acquiescence’ and
‘Estoppel’ in R. Bernhardt (ed.), Ency-clopedia of Public International Law (vol. 7,
1984), pp. 5 and 80.

Chapter SixLegitimacy of the Archipelagic Regime and Future

Developments6.1 IntroductionAccording to the conclusions reached in
Chapter 4, the emerging customary rule regarding the application of straight
baselines was found to concern closely-knit archipelagos, that is, groups of
islands which enclose a small maritime space and whose component
geographical features are located at close distances.1 On the contrary,
the majority of states are using the low-water mark for the measure-
ment of the maritime zones of their broadly-scattered archipelagos. The
politi-cal decision during UNCLOS III to exclude dependent
archipelagos from the newly created special protective regime of the LOSC
 11

seems both unjustified and unsatisfactory, and the absence of such a

system for these archipelagos may be perceived as a lacuna de lege
ferenda in international law. The potential appli-cation of the
archipelagic regime to broadly-scattered dependent archipelagos would be
a continuation of the emerging customary international rule discussed in
Chapter 5. The differentiating factor between the archipelagic regime of
the LOSC and the emerging customary rule is the acceptance of further
concessions in favour of third states in archipelagic waters. In this
respect, the analogical application of the conditions of Part IV would
legitimise the attempts of states to apply straight archipelagic baselines in
their broadly-scattered archipelagos.This chapter examines the legitimacy of
the archipelagic regime and especially the justification of its analogical
application to dependent broadly-scattered archipelagos. The first part of
the chapter examines whether the existing rule, namely the low-water
mark, is, indeed, unsatisfactory for the case of dependent broadly-scattered
archipelagos. In the framework of this question, two issues are explored:
first, whether the element of statehood justifies the differentia-tion in the
legal treatment between these two types of archipelagos; and second whether
a special regime is redundant as any potential needs are covered by the EEZ
regime. Furthermore, the implications of the application of the archipelagic
regime to archipelagic dependencies are examined, especially with
respect to 1 See Chapter 4, p. 183 et seq.
230Chapter Sixthe existence of threats to the inclusive rights of the
international community. The last subsection assesses the potential
application of the archipelagic regime to two dependent archipelagos, the
Canary Islands and French Polynesia.6.2 Contemporary Relevance of
the Archipelagic Regime: Part IV of the LOSC and Dependent
Outlying ArchipelagosA. The Archipelagic Concept and the Element of
StatehoodI. Legal Definition of Archipelagos according to the
LOSCAccording to this article 46 (b) LOSC ‘archipelago means a
group of islands, including parts of islands, interconnecting waters and
other natural features which are so closely inter-related that such islands,
waters and other natural features form an intrinsic geographical,
economic and political entity or which historically have been regarded
as such’. Dependent outlying archipelagos may qualify as legal
archipelagos on the basis of this definition. In terms of geography,
archipelagic states and dependent outlying archipelagos present the exact
same characteristics, namely they are composed of closely inter-related
islands and other natural features. Dependent outlying archipelagos may
also compose an economic unity in the same way an archipelagic state does.
The economic unity of an archipelago mainly reflects the close dependence of
the inhabitants of the islands upon the resources of the archipelago and is
irrespective of the political status of the archipelago.2 Finally, political
unity refers to the administration of the archipelago, either as an
 12

independent administrative region or as a region administered as a part

of a larger unit3 according to the political system of the state, and does
not presuppose that the archipelago is a single state.4 Therefore, both
archipelagic states and midocean archipelagos can qualify as legal archi-
pelagos, as long as they satisfy the ‘entity’ test.II. Statehood as a Means of
Distinguishing ArchipelagosThe distinction adopted during UNCLOS III
on the basis of the political status of archipelagos is certainly a political
one.5 As argued in Chapter 1, statehood 2 C.F. Amerasinghe (1974), p. 565.
Jayawardene contends, though, that the economic criterion is subjective in character
as almost any archipelagic entity may point to economic reasons for unity. H.W.
Jayawardene (1990), p. 139.3 L.L. Herman (1985), p. 180.4 M. Munavvar (1995), p. 114.
H.W. Jayawardene (1990), p. 139. Rodgers states, on the contrary, that ‘no reference to
‘mixed states’ is contained in this definition’, P.E.J. Rodgers (1981), p. 183.5 D.W. Bowett
(1979), p. 106

Appendix1Figure 3. Finland – Aaland Archipelago1 The maps have

been produced based on data from ESRI World Imagery.

266AppendixFigure 4. United Kingdom: Outer Hebrides

BibliographyI. Primary Materials1. National Legislation(The national

legislation listed below may be found at http://www.un.org/Depts/los/LEGISLATION
ANDTREATIES/depositpublicity.htm unless otherwise indicated.)AustraliaProclamation of
the inner limits (the baseline) of 4 February 1983.ArgentinaAct No. 23.968 of 14 August
1991.BelizeMaritime Areas Act, 1992 article 12 (1) (c).CanadaConstitution Act 1982.Order
in Council October 1967 (Labrador Island and Newfoundland).Order in Council May 1969
(Nova Scotia, Vancouver Island, Queen Charlotte Islands).The Territorial Sea Geographical
Co-ordinates Order of 9 May 1972.Agreement between the Inuit of the Nunavut Settlement
Area and Her Majesty the Queen in Right of Canada (available at http://laws-
lois.justice.gc.ca/eng/Const/page-15.html#h-38/).Cape VerdeLaw No. 60/IV/92 of 21
December 1992.ChileDecree No. 416 of 14 July 1977.ChinaDeclaration of the Government
of the People’s Republic of China on the baselines of the territorial sea, 15 May
1996.ColombiaDecree No. 1436 of 13 June 1984 (1) partially regulating article 9 of Act No.
10 of 1978.Costa RicaDecree 18581-RE (concerning straight baselines in the Pacific
Ocean), 14 October 1988.CubaAct of 24 February 1977 concerning the breadth of the
Territorial Sea of the Republic of Cuba.
292BibliographyCyprusThe Regulation of the Innocent passage of the ships in the
territorial waters law, 2011, article 3 (2).DenmarkOrder No. 29 of 27 February 1903
respecting the supervision of Fisheries in the Sea surrounding the Faroe Islands and
Iceland outside the Danish Territorial Sea (UN Legislative Series Doc. ST/LEG/SER.B/6,
pp. 467–8).Order of 20 May 1955 which amended the 1903 Decree regarding the
supervision of Fisheries in the Sea surrounding the Faroe Islands (UN Legislative Series
Doc. ST/LEG/SER.B/6, p. 468).Decree No. 156 of 24 April 1963 amending the Decree
Respecting the fishery Patrol in the seas sur-rounding the Faroe Islands (Limits in the Seas,
 13

No. 13: Straight Baselines: The Faeroes (US Depart-ment of State, Office of the
Geographer, Bureau of Intelligence and Research, 1970), pp. 1–2).Order No. 437 of 21
December 1966 on the Delimitation of the Territorial Sea around the Faroe
Islands.Decree No. 598 of 21 December 1976 – The Fishing Territory of the Faeroe
Islands.Ordinance No. 599 of 21 December 1976.Decree No. 189 of 19 April 1978.Act No.
200 of 7 April 1999 (territorial sea).Executive Order No. 680 of 18 July 2003 amending the
Executive Order No. 242 of 21 April 1999.Denmark: Act No. 200 of 7 April 1999 on
the delimitation of the territorial sea, article 4 (for the Little Belt, Great Belt and the
Sound).Dominican RepublicAct No. 66/07 on 22 May 2007.EcuadorFisheries regulation of
1934 (UN Legislative Series Doc. ST/LEG/Ser.B/6, p. 478).Fisheries Decree of 1938
(available at S.A. Riesenfeld, Protection of Coastal Fisheries in International Law (Carnagie
Endowment for International Peace, 1942), p. 243).Presidential Decree of 22 February
1951 regarding fisheries (UN Legislative Series Doc. ST/LEG/SER.B/6, p.
487).Presidential Decree No. 1085 of 14 May 1955 (UN Legislative Series Doc.
ST/LEG/SER.B/6, p. 490).Supreme Decree No. 959-A of 28 June 1971.Special Regime
Law for the Preservation and Sustainable Development of the Province of Galapa-gos, 1996
(http://whc.unesco.org/pg.cfm?cid=31&id_site=1).EgyptBaselines of the Maritime areas –
Decree of the President of the Arab Republic of Egypt No. 27 (1990) concerning the
baselines of the maritime areas of the Arab Republic of Egypt, 9 January 1990.Decree of
the President of the Arab Republic of Egypt No. 27 (1990) concerning the baselines
of the maritime areas of the Arab Republic of Egypt, 9 January 1990.EritreaProclamation
No. 7 – Transitional Maritime Code of Eritrea of 15 September 1991.Federal Revenue
Proclamation No. 126 of 1952.FranceDécret No. 78–112 du 11 janvier 1978 définissant les
lignes de base droites et les lignes de fermeture des baies servant a la détermination des
lignes de base a partir desquelles est mesurée la lar-geur des eaux territoriales
françaises adjacentes au territoire des Terres australes et antarctiques

IndexAaland archipelago 77Acquiescence 89, 96, 179–181, 192, 194–195,

198, 200 n. 42, 201–203, 206–207, 213, 221–222, 223 n. 165, 224, 226Aegean
archipelago 140, 143–146, 245 n. 74Andaman Islands 33, 51 n. 221, 137, 231Archipelagic
sea lane passage 3, 44 n. 192, 45–49, 103, 144, 238–239, 241, 249, 259, 261Australia 4, 13
n. 5, 31, 40 n. 171, 48 n. 208, 88 n. 191, 90 n. 198, 92 n. 210, 104, 112–113, 121, 127, 140,
160, 164, 171–172, 204 n. 67, 210, 234, 244 n. 69Azores and Madeira Islands 170, 175,
232, 235 n. 23Bahrain 67, 87, 95, 98, 101–102, 231 n. 9, 258Balearic Islands 109 n. 26,
130Bay closing lines 8, 13, 130, 182 n. 155Bay Islands 83–84Bijagos (Bissagos)
archipelago 79Canada 9, 19, 30 n. 104, 31, 79, 91, 93 n. 212, 114, 178, 191, 194, 207–210,
211 n. 96, 212–222, 224–226Canadian Arctic archipelago 9, 93 n. 213, 191, 218,
227Canary Islands 9, 127–129, 232, 235 n. 23, 238 n. 37, 242 n. 58, 247–252Chile 31 n.
110, 77, 166 n. 78, 178, 201–202Chilean archipelago 77China 31, 75, 76 n. 130, 112, 138–
139, 160, 165–166, 175 n. 124, 177, 184, 204 n. 67, 222Co Co Islands 136Colombia 75, 90
n. 200, 93 n. 214, 166 n. 78, 203Cuba 100 n. 3, 101 n. 5, 115 n. 52, 162, 164Customary
international lawConsistency 164–165, 168, 193 n. 8, 226 n. 179Duration 163Material
 14

element 160–162Relationship with LOSC 150–155, 170Subjective element 159 n. 46, 161,
166 n. 80Dahlak archipelago 58, 68, 87, 135–136, 161Denmark 4, 9, 13 n. 5, 20 n. 51, 92 n.
210, 100 n. 3, 104, 108, 112, 115, 120–121, 126, 160, 163–164, 168–169, 171 n. 101, 174,
188, 191, 194–200, 204 n. 67Dominican Republic 41, 100 n. 3, 114Ecuador 9, 29 n. 101, 30
n. 104, 31–32, 33 n. 121, 34, 36–37, 51 n. 221, 75, 112, 119 n. 65, 125–126, 160, 163–164,
168 n. 88, 176, 191, 194, 200–207, 231, 237 n. 32Egypt 74, 88, 190Eritrea 68, 87, 112,
135–136, 161, 171 n. 100, 193 n. 9Exclusive economic zone 45, 46 n. 198, 57, 58 n. 32, 65,
152 n. 15, 177 n. 130, 235 n. 25, 253 n. 103Falkland Islands 6, 90 n. 199, 109 n. 26, 115–
116, 122–124, 140, 175, 232, 234Faroe Islands 9, 99, 112, 126, 163 n. 64, 168–169, 174–
175, 188, 195–200, 232Finland 77, 78 n. 136, 92 n. 210, 222France 4, 31, 33, 36, 74, 76 n.
130, 104, 112, 114, 117, 124, 133 n. 125, 134, 140, 160, 164, 168 n. 90, 183, 203 n. 61,
233–234, 247 n. 81French Polynesia 10, 99, 140, 184, 230, 232, 234, 247, 252–
255Furneaux Group 116, 121, 140, 259Galapagos Islands 9, 32 n. 114, 99, 112, 119 n. 65,
125, 168 n. 88, 191–192, 200–203, 204 n. 65, 205–206Greece 19 n. 44, 25 n. 79, 31–32, 36,
140–141, 144–146, 178Guadeloupe 109 n. 26, 116, 124, 140, 168 n. 90, 183, 232Guinea-
Bissau 69, 79
316IndexHawaii 140–143Historic rights 9, 89, 192–193, 194 n. 16, 199, 206, 210–211,
220–222, 225–226Historic waters 22 n. 66, 66 n. 75, 79, 89, 191–194, 199 n. 40, 201 n. 49,
203 n. 62, 207, 209 n. 87, 211–212, 220, 222 n. 158, 223, 225Honduras 31, 83–84,
178Houtman Abrolhos 127Innocent passage 20–22, 25, 34, 43–48, 50, 89–93, 103, 111,
144 n. 167, 183–184, 186, 210 n. 95, 225, 238–239, 243, 249, 252 n. 98, 259, 261,
263Internal waters 7, 14, 20–22, 24, 28, 42, 43 n. 182, 46 n. 198, 47–48, 55 n. 11, 64, 72, 73
n. 115, 75 n. 123, 80, 88–92, 93 nn. 212–214, 103, 107, 111–112, 120, 122, 124, 128, 131,
134, 139–140, 160, 162 n. 55, 164, 177 n. 132, 183, 186, 191, 194, 199–200, 204 n. 64,
207, 209 n. 85, 214, 215 n. 123, 216–218, 221, 223, 225 n. 175, 226, 235 n. 25, 249, 250 n.
93, 258India 13 n. 5, 31, 33, 36 n. 137, 37, 50 n. 220, 112, 116–117, 137, 160, 165–166,
178, 184, 231, 241 n. 52Indonesia 19, 24, 26, 28 n. 97, 31 n. 110, 34 n. 127, 39 nn. 156,
159, 41 n. 172, 42, 43 nn. 185, 187, 46, 48–49, 88 n. 191, 178 n. 137, 184–185, 186 n. 174,
231, 242, 244 n. 69, 245 n. 69, 246–247Inuit 81, 208 n. 83, 209–212, 214, 218–220, 222,
224–226Aboriginal title 210, 220 n. 145, 225Iran 75, 139Islands 1–7, 9, 11–20, 22–25, 29–
32, 35, 36 n. 142, 39–40, 41 n. 172, 49–50, 53–54, 56–65, 67–72, 74–87, 94, 96–128, 130–
147, 156 n. 34, 157, 162, 165–166, 168–172, 173 n. 112, 174–175, 177, 180–181, 183–189,
195–196, 200–202, 205, 207, 212, 214–215, 217 n. 135, 218–219, 225, 229–230, 232–233,
237, 238 n. 37, 240, 242, 243 n. 64, 244, 247, 248 n. 82, 249, 252–255, 257–263Italy 13 n.
5, 83, 114, 166 n. 78, 241 n. 52Japan 13, 33, 34 n. 127, 41 n. 175, 162, 175, 222Kerguelen
Islands 99, 104, 109 n. 26, 116, 117, 140, 162, 164, 168, 259Kiribati 41 nn. 172–173Ko
Samui Archipelago 82Laesø Islands 120Lakshadweep Islands 137 n. 133, 138Loyalty
Islands 134, 140, 168 n. 89, 183, 185, 247Maldives 29 n. 101, 41, 46, 237 n. 34Malta 69,
87, 92 n. 210, 102, 114, 116, 159 n. 46, 162, 164Mergui Archipelago 81–82Mexico 31 n.
110, 74, 92 n. 210, 178Myanmar 33, 75, 76 n. 130, 81, 136Nicobar Islands 33, 137,
231North Sea Route 84Northwest Passage 81 n. 152, 92 n. 211, 209 n. 86, 213, 221 n.
155Norway 3, 14–15, 20 n. 57, 31 n. 110, 40 n. 167, 56, 65–66, 88 n. 188, 90 n. 201, 112,
118–119, 160, 164, 176 n. 129, 179 n. 145, 180, 195–198, 222, 262 n. 4Oman 74, 139 n.
146Outer Hebrides 6, 78Paracel Islands 138–139, 176 n. 124, 176–177Persistent objector
95, 96 n. 227, 152, 176, 204, 224–225Philippines 20, 22, 24, 26–27, 33 n. 121, 34 n. 127,
41, 43 n. 187, 46 n. 199, 47–49, 177, 184–185, 231, 242 n. 57Portugal 13, 31, 36 n. 137, 79,
112, 131–132, 160, 164, 170, 171 n. 101, 175, 183, 204 n. 67, 249Preparis Islands
136Protest 41–42, 74, 76, 95–96, 148, 156–160, 162 n. 55, 168–170, 173 n. 111, 174, 176,
178–181, 184 n. 164, 199–200, 202–204, 219, 221–224, 226, 243, 252 n. 100Qatar 67, 87,
95, 98 101-102, 258Rocks 5, 14, 57–60, 80–82, 86–87, 114–115, 120–121, 125, 174, 179,
195Russian Federation 47 n. 208, 84, 198 n. 33Self-governing and non-self-governing
territories 234–235, 242 n. 61, 255, 260Sjaelland 100 n. 3, 104, 108–109, 116, 120–
 15

121Sovereign activities 214, 220, 225–226Spain 31, 36 n. 137, 37, 112, 127, 130, 160, 164,
171 n. 101, 204 n. 67, 233 n. 17, 248–25