8 A Critique Against the Concept of Mid-Ocean Archipelago
135
opposability of straight baseline depends on lack of protest from other states.
5 The
assessment of the committee was that “[n]otwithstanding significant evidence of
variations in state practice, many straight baselines when considered in their distinct
geographic settings are in general conformity with Article 7 and consistent with the
indeterminate concepts that it contains”.
6
In addition, a “fringe of islands” under Article 7 can be “applied flexibly so as to
take into account multiple different island configurations that may be located offshore
a mainland.”
7 The Committee stated that there is no “consistency in state practice, or
assessment by international courts and tribunals as to the distance between a fringe
of islands and the mainland,” but rather “the proximity of the islands to the coast is
controlled by the general criteria within Article 7.”
Article 47 provides that an archipelagic State may draw straight archipelagic
baselines in order to secure the unity. UNCLOS specifies geographic conditions that
straight archipelagic baselines may be drawn. Within such baselines are included the
main islands and an area in which the ratio of the area of the water to the area of the
land, including atolls, is between 1–1 and 9–1.
8 The length of such baselines shall
not exceed 100 nautical miles, except that up to 3% of the total number of baselines
enclosing any archipelago may exceed that length, up to a maximum length of 125
nautical miles.
9 The system of such baselines shall not be applied by an archipelagic
State in such a manner as to cut off from the high seas or the exclusive economic
zone the territorial sea of another State.
10
There are currently 22 states which claims archipelagic baselines.
11 Research
conducted by Ashley Roach shows that the geographical conditions are met by vast
majority of these states.
12 In fact, there are states which chose outermost turning
points that do not satisfy the criteria of Article 47(4), using low-tide elevations
5 Ibid, paras. 1 and 6. The Committee has identified straight baseline claims from 88 states. Appendix
1 of its 2018 Report list a total of 82 protests or other forms of objection, although others may not be
publicly available. Straight baseline claims of 39 States, almost 50% of straight baselines claims, all
but Iran parties to UNCLOS, have been objected to by 21 States and the EU, only 2 of which, Iran
and the US, are not party to the UNCLOS. The majority of coastal states, 91 of 150, have sought to
proclaim straight baselines in reliance upon Article 7 of the LOSC. ILA, Sydney Conference 2018,
Baselines under the International Law of the Sea, Final Report (2018), Appendices 1–3 [ILA 2018
Report].
6 ILA Resolution of 2018, para. 1.
7 Ibid, para. 3.
8 UNCLOS, Article 47(1).
9 Ibid, Article 47(2).
10 Ibid, Article 47(5).
11 These States are: Antigua and Barbuda, the Bahamas, Cabo Verde, Comoros, the Dominican
Republic, Fiji, Grenada, Indonesia, Jamaica, Kiribati, Maldives, Marshall Islands, Mauritius, Papua
New Guinea, the Philippines, Sao Tome and Principe, Seychelles, the Solomon Islands, Saint
Vincent and the Grenadines, Trinidad and Tobago, Tuvalu, and Vanuatu. For the latest state practices,
see ILA Report of 2018, Appendix 1. See also Kevin Baumert and Brian Melchior, ‘The Practice of
Archipelagic States: A Study of Studies’ (2016) 46 Ocean Development & International Law 60;
J. Ashely Roach and Robert W.Smith, Excessive Maritime Claims (Brill 2012), 209.
12 ILA Report of 2018, Appendix 1.
135
opposability of straight baseline depends on lack of protest from other states.
5 The
assessment of the committee was that “[n]otwithstanding significant evidence of
variations in state practice, many straight baselines when considered in their distinct
geographic settings are in general conformity with Article 7 and consistent with the
indeterminate concepts that it contains”.
6
In addition, a “fringe of islands” under Article 7 can be “applied flexibly so as to
take into account multiple different island configurations that may be located offshore
a mainland.”
7 The Committee stated that there is no “consistency in state practice, or
assessment by international courts and tribunals as to the distance between a fringe
of islands and the mainland,” but rather “the proximity of the islands to the coast is
controlled by the general criteria within Article 7.”
Article 47 provides that an archipelagic State may draw straight archipelagic
baselines in order to secure the unity. UNCLOS specifies geographic conditions that
straight archipelagic baselines may be drawn. Within such baselines are included the
main islands and an area in which the ratio of the area of the water to the area of the
land, including atolls, is between 1–1 and 9–1.
8 The length of such baselines shall
not exceed 100 nautical miles, except that up to 3% of the total number of baselines
enclosing any archipelago may exceed that length, up to a maximum length of 125
nautical miles.
9 The system of such baselines shall not be applied by an archipelagic
State in such a manner as to cut off from the high seas or the exclusive economic
zone the territorial sea of another State.
10
There are currently 22 states which claims archipelagic baselines.
11 Research
conducted by Ashley Roach shows that the geographical conditions are met by vast
majority of these states.
12 In fact, there are states which chose outermost turning
points that do not satisfy the criteria of Article 47(4), using low-tide elevations
5 Ibid, paras. 1 and 6. The Committee has identified straight baseline claims from 88 states. Appendix
1 of its 2018 Report list a total of 82 protests or other forms of objection, although others may not be
publicly available. Straight baseline claims of 39 States, almost 50% of straight baselines claims, all
but Iran parties to UNCLOS, have been objected to by 21 States and the EU, only 2 of which, Iran
and the US, are not party to the UNCLOS. The majority of coastal states, 91 of 150, have sought to
proclaim straight baselines in reliance upon Article 7 of the LOSC. ILA, Sydney Conference 2018,
Baselines under the International Law of the Sea, Final Report (2018), Appendices 1–3 [ILA 2018
Report].
6 ILA Resolution of 2018, para. 1.
7 Ibid, para. 3.
8 UNCLOS, Article 47(1).
9 Ibid, Article 47(2).
10 Ibid, Article 47(5).
11 These States are: Antigua and Barbuda, the Bahamas, Cabo Verde, Comoros, the Dominican
Republic, Fiji, Grenada, Indonesia, Jamaica, Kiribati, Maldives, Marshall Islands, Mauritius, Papua
New Guinea, the Philippines, Sao Tome and Principe, Seychelles, the Solomon Islands, Saint
Vincent and the Grenadines, Trinidad and Tobago, Tuvalu, and Vanuatu. For the latest state practices,
see ILA Report of 2018, Appendix 1. See also Kevin Baumert and Brian Melchior, ‘The Practice of
Archipelagic States: A Study of Studies’ (2016) 46 Ocean Development & International Law 60;
J. Ashely Roach and Robert W.Smith, Excessive Maritime Claims (Brill 2012), 209.
12 ILA Report of 2018, Appendix 1.