7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
117
be employed in localities where the coastline is deeply indented and cut into, or if
there is a fringe of islands along the coast in its immediate vicinity. This provision
and its predecessor, Article 4 of the Territorial Sea Convention 1958, incorporates the
jurisprudence of the International Court of Justice (“ICJ”) in the Anglo-Norwegian
Fisheries case,
9 which basically reflects the geographical features of the Norwegian
coastline. It is generally believed that “a fringe of islands along the coast” amounts
to coastal archipelagos.
10 Thus Article 7 of LOSC establishes a special regime for
coastal archipelagos.
Article 47 of the LOSC set up a special regime for mid-ocean archipelagos
which constitute an integral part of archipelagic States. As Article 47 prescribes,
an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. Noteworthy is the fact that, at the initial stage of UNCLOS III, there was no distinction between archipelagos belonging to continental States and those constituting
archipelagic States in the relevant proposals submitted by different groups of States.
11
However, since continental States possessing mid-ocean archipelagos did not participate in the informal Working Group on Archipelago, and archipelagic States were
united and collaborated together throughout UNCLOS III, the legitimate concerns of
dependent mid-ocean archipelagos were gradually neglected. It was not until 1976
that the Revised Single Negotiating Text (“RSNT”) deleted the special section on
archipelagos forming an integral part of a continental State.
12 Thereafter, the discussions on mid-ocean archipelagos were limited to archipelagic States. The regime
of archipelagic States prescribed by Part IV of LOSC is essentially a compromise
between archipelagic States and maritime powers. Therefore, in light of the negotiating history of UNCLOS III, Article 47 cannot constitute the appropriate legal
basis for continental States to apply straight baselines to their dependent mid-ocean
archipelagos.
In practice, however, many continental States have been applying the straight
baselines to their mid-ocean archipelagos since the early 20th century, e.g. Faroe
Islands (Denmark), Galapagos Islands (Ecuador), Svalbard Archipelago (Norway),
Falkland Islands (UK)/Malvinas Islands (Argentina), Turks and Caicos Islands
(UK), Kerguelen Islands (France), Guadeloupe (France), Loyalty Islands (France),
Furneaux Group (Australia), Houtman Abrolhos (Australia), Canary Islands (Spain),
9 Anglo-Norwegian Fisheries Case (UK v. Norway), ICJ Reports 1951, pp. 128–129.
10 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff
Publishers, 1995, p. 183.
11 See Hiran W. Jayewardene, The Regime of Islands in International Law, Martinus Nijhoff
Publishers, 1990, pp. 140–141.
12 In Part II of Informal Single Negotiation Text (“ISNT”), under the heading “Archipelagos”,
section 1 carries the title “Archipelagic States”, while section 2 is entitled “Oceanic Archipelagos
Belonging to Continental States”. Section 2 contained a single article, i.e. Article 131, which
provided that: “The provisions of Section 1 are without prejudice to the status of oceanic archipelagos
forming an integral part of the territory of a continental State”. See Satya N. Nandan and Shabtai
Rosene (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary (Vol. 2),
Martinus Nijhoff Publishers, 1993, p. 412.
117
be employed in localities where the coastline is deeply indented and cut into, or if
there is a fringe of islands along the coast in its immediate vicinity. This provision
and its predecessor, Article 4 of the Territorial Sea Convention 1958, incorporates the
jurisprudence of the International Court of Justice (“ICJ”) in the Anglo-Norwegian
Fisheries case,
9 which basically reflects the geographical features of the Norwegian
coastline. It is generally believed that “a fringe of islands along the coast” amounts
to coastal archipelagos.
10 Thus Article 7 of LOSC establishes a special regime for
coastal archipelagos.
Article 47 of the LOSC set up a special regime for mid-ocean archipelagos
which constitute an integral part of archipelagic States. As Article 47 prescribes,
an archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago. Noteworthy is the fact that, at the initial stage of UNCLOS III, there was no distinction between archipelagos belonging to continental States and those constituting
archipelagic States in the relevant proposals submitted by different groups of States.
11
However, since continental States possessing mid-ocean archipelagos did not participate in the informal Working Group on Archipelago, and archipelagic States were
united and collaborated together throughout UNCLOS III, the legitimate concerns of
dependent mid-ocean archipelagos were gradually neglected. It was not until 1976
that the Revised Single Negotiating Text (“RSNT”) deleted the special section on
archipelagos forming an integral part of a continental State.
12 Thereafter, the discussions on mid-ocean archipelagos were limited to archipelagic States. The regime
of archipelagic States prescribed by Part IV of LOSC is essentially a compromise
between archipelagic States and maritime powers. Therefore, in light of the negotiating history of UNCLOS III, Article 47 cannot constitute the appropriate legal
basis for continental States to apply straight baselines to their dependent mid-ocean
archipelagos.
In practice, however, many continental States have been applying the straight
baselines to their mid-ocean archipelagos since the early 20th century, e.g. Faroe
Islands (Denmark), Galapagos Islands (Ecuador), Svalbard Archipelago (Norway),
Falkland Islands (UK)/Malvinas Islands (Argentina), Turks and Caicos Islands
(UK), Kerguelen Islands (France), Guadeloupe (France), Loyalty Islands (France),
Furneaux Group (Australia), Houtman Abrolhos (Australia), Canary Islands (Spain),
9 Anglo-Norwegian Fisheries Case (UK v. Norway), ICJ Reports 1951, pp. 128–129.
10 Mohamed Munavvar, Ocean States: Archipelagic Regimes in the Law of the Sea, Martinus Nijhoff
Publishers, 1995, p. 183.
11 See Hiran W. Jayewardene, The Regime of Islands in International Law, Martinus Nijhoff
Publishers, 1990, pp. 140–141.
12 In Part II of Informal Single Negotiation Text (“ISNT”), under the heading “Archipelagos”,
section 1 carries the title “Archipelagic States”, while section 2 is entitled “Oceanic Archipelagos
Belonging to Continental States”. Section 2 contained a single article, i.e. Article 131, which
provided that: “The provisions of Section 1 are without prejudice to the status of oceanic archipelagos
forming an integral part of the territory of a continental State”. See Satya N. Nandan and Shabtai
Rosene (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary (Vol. 2),
Martinus Nijhoff Publishers, 1993, p. 412.