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Y. Ishii
The first is the concept “archipelago.” While there is no limitation with regard
to the number of the islands, the distance, and area of the sea that islands cover, its
common feature is the unity.
2 It is indispensable that they could be recognized as a
group, chain or cluster. In addition, it is the textual requirement that it consists of
“islands,” which is “a naturally formed area of land, surrounded by water, which is
above water at high tide.
3 ”
This notion of unity is reflected in Article 46(b) of UNCLOS, which defines the
term as “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.”
In contrast, the terms “mid-ocean,” “outlying,” and “off-shore” refer to
archipelagos which belongs to a continental state, although the islands are located
at a distance from the mainland. In fact, there are cases where the group of islands
could be characterized as “coastal archipelagos,” which is “a fringe of islands along
the coast in its immediate vicinity,” where the coastal state is entitled to draw a
straight baseline according to Article 7. The main distinction between the mid-ocean
archipelago and the coastal archipelago is the distance between the islands and the
coast. As the text explicitly provides, the latter has to be sufficiently close to the
mainland.
The second is the concept of “baseline.” A baseline under UNCLOS is the line for
measuring the breadth of the territorial sea, and eventually, exclusive economic zone
(EEZ) and continental shelf (CS). In principle, a normal baseline shall be drawn,
which is “the low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State,” as Article 5 provides.
There are two situations that UNCLOS allows the coastal State to deviate from
Article 5.
Article 7 provides that a coastal state may draw a straight baseline “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.” Nothing in the convention defines what
consists of the term “the coast” and “fringe of islands,” and the interpretation is
not uniform among the states. The case should be discounted where the group has a
sufficiently large island so that its coast may consist the basis for the straight baseline.
Admittedly, it is difficult to draw a clear-cut line between the ones which are governed
by Article 7 and the ones which are not.
In a report adopted by International Law Association Committee on Baselines
under the International Law of the Sea in 2018, the Committee concluded that “there
is no agreed single interpretation of Article 7 of the LOSC and there is no new
rule of customary international law on straight baselines.”
4 It is considered that the
2 Sophia Kopela, Dependent Archipelagos in The Law of The Sea (Martinus Nijhoff 2013), 5.
3 UNCLOS, Article 121(1).
4 International Law Association, Committee on Baselines under the International Law of the Sea,
Resolution 1/2018, Annex, Sydney Conclusions on Baselines under the International Law of the
Sea [ILA Resolution of 2018], para. 1.
Y. Ishii
The first is the concept “archipelago.” While there is no limitation with regard
to the number of the islands, the distance, and area of the sea that islands cover, its
common feature is the unity.
2 It is indispensable that they could be recognized as a
group, chain or cluster. In addition, it is the textual requirement that it consists of
“islands,” which is “a naturally formed area of land, surrounded by water, which is
above water at high tide.
3 ”
This notion of unity is reflected in Article 46(b) of UNCLOS, which defines the
term as “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.”
In contrast, the terms “mid-ocean,” “outlying,” and “off-shore” refer to
archipelagos which belongs to a continental state, although the islands are located
at a distance from the mainland. In fact, there are cases where the group of islands
could be characterized as “coastal archipelagos,” which is “a fringe of islands along
the coast in its immediate vicinity,” where the coastal state is entitled to draw a
straight baseline according to Article 7. The main distinction between the mid-ocean
archipelago and the coastal archipelago is the distance between the islands and the
coast. As the text explicitly provides, the latter has to be sufficiently close to the
mainland.
The second is the concept of “baseline.” A baseline under UNCLOS is the line for
measuring the breadth of the territorial sea, and eventually, exclusive economic zone
(EEZ) and continental shelf (CS). In principle, a normal baseline shall be drawn,
which is “the low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State,” as Article 5 provides.
There are two situations that UNCLOS allows the coastal State to deviate from
Article 5.
Article 7 provides that a coastal state may draw a straight baseline “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.” Nothing in the convention defines what
consists of the term “the coast” and “fringe of islands,” and the interpretation is
not uniform among the states. The case should be discounted where the group has a
sufficiently large island so that its coast may consist the basis for the straight baseline.
Admittedly, it is difficult to draw a clear-cut line between the ones which are governed
by Article 7 and the ones which are not.
In a report adopted by International Law Association Committee on Baselines
under the International Law of the Sea in 2018, the Committee concluded that “there
is no agreed single interpretation of Article 7 of the LOSC and there is no new
rule of customary international law on straight baselines.”
4 It is considered that the
2 Sophia Kopela, Dependent Archipelagos in The Law of The Sea (Martinus Nijhoff 2013), 5.
3 UNCLOS, Article 121(1).
4 International Law Association, Committee on Baselines under the International Law of the Sea,
Resolution 1/2018, Annex, Sydney Conclusions on Baselines under the International Law of the
Sea [ILA Resolution of 2018], para. 1.