Revisiting the Legal Status of Dependent Archipelagic Waters from First Principles

Abstract

An archipelago is 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’.1 For the most part the law on archipelagic States is well-settled. Part iv of the United Nations Convention on the Law of the Sea 1982 (losc) defines an archipelagic State and the status of archipelagic waters. It establishes rules for drawing baselines around the archipelago, and it delimits specific navigational and other rights within archipelagic waters. Churchill and Lowe observe that the law has worked well since the entry into force of the losc and that the regime appears to balance well the interests of archipelagic and maritime States.2 Similarly, Davenport notes that the losc settled years of debate over the status of groups of islands and established an effective regime.3 However, such remarks concern the regime of archipelagic States or mid-ocean archipelagos. This refers to groups of islands that are States in their own right, such as Indonesia, Philippines, Fiji, and Nicobar and Andaman. The law of the sea draws a distinction between archipelagic States and other archipelagos, namely coastal archipelagos and dependent or outlying archipelagos. Coastal archipelagos constitute fringes of islands and other features close to the coastline, such as the skjargard along Norway’s coast, and similar features along the coasts of Sweden, Finland and parts of Canada. Dependent archipelagos are groups of islands that form part of a State that is comprised mainly by a continental landmass. Examples include the Azores (Portugal), Faroes (Denmark), Galapagos (Ecuador) and the Falkland Islands (UK). As a matter of treaty law, the losc regime on archipelagos applies only to archipelagic States. And only archipelagic States may enjoy the benefits of the special regime established under Part iv of the losc. Of course, coastal archipelagos are covered by the rules on straight baselines.4 And so they may benefit in part from the inclusion of some littoral waters within the baseline as internal waters, as well as the seawards extension of their maritime zones.