8 A Critique Against the Concept of Mid-Ocean Archipelago
137
Nonetheless, it does not mean that the coastal state may draw a baseline even if the
archipelagos do not satisfy the conditions of either Article 7 or 47.
On the contrary, the zonal approach that UNCLOS is based on should be interpreted in a comprehensive manner in setting out the nature of each maritime column.
16
It goes without mentioning that various practices existed before the codification of
the law of the sea. However, UNCLOS was adopted in order to overcome those
inconsistency and to create a regime that would apply to every corner of the ocean.
One of the main aims of UNCLOS III was to resolve uncertainties over the breaths
and legal nature of the coastal State’s maritime zones to prevent the phenomenon of
“creeping jurisdiction.
17 ” It is precisely because no reservations or exceptions may
be made to this Convention
18 that the instrument needs to be comprehensive. It would
be contrary to the texts of this instrument to claim that does not fit to any of the zones
provided in the instrument. If one allows a room of interpretation to recognize a zone
that is not provided under the Convention, it would make the delicate balance that
this convention is based on meaningless.
It should be noted that UNCLOS is expected to function as a “framework” convention to a certain extent. Article 311(2) states that “[t]his Convention shall not alter
the rights and obligations of States Parties which arise from other agreements” as
long as they are compatible with this Convention and do not affect the enjoyment
by other States Parties of their rights or the performance of their obligations under
this Convention. It also provides under Article 311(3) that “[t]wo or more States
Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them,” but only
on the conditions that such agreements would not contradict with the provisions of
UNCLOS. However, the instrument has no room for any claim that would contradict
with the existing articles.
This claim that UNCLOS provides a comprehensive regime should be distinguished from a criticism that the creation of the category of archipelagic states was
not sufficiently fair.
For instance, James Crawford, in his Hague Academy lecture published in 2014,
criticizes this definition as “arbitrary,” precisely because it excludes the mid-ocean
archipelagoes.
19 He argues that “this amounts to discrimination and is a deviation from formal equality under international law.” In addition, “[b]y establishing
archipelagic state sovereignty over archipelagic waters and superjacent airspace,
UNCLOS created one of the largest expansions (comparable to exclusive economic
16 South China Sea Arbitration, para. 246.
17 R. Robin Churchill, ‘The 1982 United Nations Convention on The Law of The Sea’ in Donald
Rothwell et al (eds), Oxford Handbook of The Law of The Sea (Oxford University Press 2015), 24.
18 UNCLOS, Article 309.
19 James Crawford, Chance, Order, Change: The Course of International Law (ALI-Pocket 2014),
326 (para. 421).
137
Nonetheless, it does not mean that the coastal state may draw a baseline even if the
archipelagos do not satisfy the conditions of either Article 7 or 47.
On the contrary, the zonal approach that UNCLOS is based on should be interpreted in a comprehensive manner in setting out the nature of each maritime column.
16
It goes without mentioning that various practices existed before the codification of
the law of the sea. However, UNCLOS was adopted in order to overcome those
inconsistency and to create a regime that would apply to every corner of the ocean.
One of the main aims of UNCLOS III was to resolve uncertainties over the breaths
and legal nature of the coastal State’s maritime zones to prevent the phenomenon of
“creeping jurisdiction.
17 ” It is precisely because no reservations or exceptions may
be made to this Convention
18 that the instrument needs to be comprehensive. It would
be contrary to the texts of this instrument to claim that does not fit to any of the zones
provided in the instrument. If one allows a room of interpretation to recognize a zone
that is not provided under the Convention, it would make the delicate balance that
this convention is based on meaningless.
It should be noted that UNCLOS is expected to function as a “framework” convention to a certain extent. Article 311(2) states that “[t]his Convention shall not alter
the rights and obligations of States Parties which arise from other agreements” as
long as they are compatible with this Convention and do not affect the enjoyment
by other States Parties of their rights or the performance of their obligations under
this Convention. It also provides under Article 311(3) that “[t]wo or more States
Parties may conclude agreements modifying or suspending the operation of provisions of this Convention, applicable solely to the relations between them,” but only
on the conditions that such agreements would not contradict with the provisions of
UNCLOS. However, the instrument has no room for any claim that would contradict
with the existing articles.
This claim that UNCLOS provides a comprehensive regime should be distinguished from a criticism that the creation of the category of archipelagic states was
not sufficiently fair.
For instance, James Crawford, in his Hague Academy lecture published in 2014,
criticizes this definition as “arbitrary,” precisely because it excludes the mid-ocean
archipelagoes.
19 He argues that “this amounts to discrimination and is a deviation from formal equality under international law.” In addition, “[b]y establishing
archipelagic state sovereignty over archipelagic waters and superjacent airspace,
UNCLOS created one of the largest expansions (comparable to exclusive economic
16 South China Sea Arbitration, para. 246.
17 R. Robin Churchill, ‘The 1982 United Nations Convention on The Law of The Sea’ in Donald
Rothwell et al (eds), Oxford Handbook of The Law of The Sea (Oxford University Press 2015), 24.
18 UNCLOS, Article 309.
19 James Crawford, Chance, Order, Change: The Course of International Law (ALI-Pocket 2014),
326 (para. 421).