THE PROBLEM OF ARCHIPELAGIC STATES

For the Philippines and Indonesia, adoption by the Third Law of the Sea Conference in the 1982 Law of the Sea Convention (1982 LOS Convention) of Articles 46-54 on “Archipelagic States,” marked the capstone of the two countries’ efforts to win international recognition for the archipelagic principle.’ For both, acceptance by the international community of this principle was an important step in their political development from a colony to a sovereign state. Their success symbolized independence from colonial status and their role in the shaping of the international community in which they live.

It was made possible by their efforts, in the years before 1982, to negotiate a regional consensus on the need for the archipelagic principle, a consensus that eventually united the states at the Third Law of the Sea Conference (UNCLOS III). The concept was a critical one, because as Indonesian diplomat Noegroho Wisnomoerti wrote:

The nationhood of Indonesia is built on the concept of unity between the Indonesian islands and the inter-connecting waters. Those seas are regarded as a unifying, not a separating element.. .It was the first political manifestation of the concept of national unity which had inspired the nationalist movement, started in 1908, to lead the national struggle for independence.

Similarly, the Constitution of the Philippines links the archipelagic principle to the national unity of the country:

The critical passage in the 1982 LOS Convention’s provisions on archipelagic states comes in Article 46(b) “‘[A]rchipelago’ means 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.”

The land portions of an archipelago pose few jurisdictional questions. However, the different attitudes which the European states

adopted in the seventeenth century towards land and towards sea have made the legal status of the “interconnecting waters” included in archipelagos by Article 46 problematical. In the case of land, exclusivity has

been the rule; while the sea has been viewed as a commonage since the end of the debate between Hugo Grotius and John Selden over open and closed seas.’ Freedom of the seas became the norm and was enforced by navies of imperial power.

Despite a steady erosion of this principle in state practice since World War II and, since the 1951 Anglo-Norwegian Fisheries Case, an increased acceptance of special circumstances in the delimiting of a state’s jurisdiction over adjacent waters, Indonesia and the Philippines devoted decades to winning acceptance of the archipelagic principle. The magnitude of the problem for the two archipelagic states was well demonstrated in the conclusions of the 1957 report prepared by Jens Evensen of Norway for the First United Nations Law of the Sea Conference (UNCLOS I).’ Neither treaties nor state practice confirmed the special political, economic and security concerns of archipelagic states by recognizing a special legal status for their land and water.

The 1957 report began by trying to identify an archipelago as “a formation of two or more islands (islets or rocks) which geographically may be considered as a whole,” but hastened to add that “[o]ne glance at the map is sufficient to show that the geographical characteristics of archipelagos vary widely.” A distinction was then drawn between coastal and mid-ocean archipelagos. The problem of delimiting territorial seas for states with ragged coastlines made up of coastal archipelagos had been addressed by the International Court of Justice (ICJ) in the 1951 Anglo-Norwegian Fisheries Case.” While directly applicable only to the two parties of the case, the ICJ’s decision had far-reaching effect in lending weight to the use of straight baselines to delimit the territorial sea for states with unusual coastlines.

The problem of delimiting the territorial sea in the case of archipelagos “situated out in the ocean at such a distance from the coasts of firm land as to be considered as an independent whole rather than forming part of or outer coastline of the mainland,”was another matter. In one of report it was noted that:

To illustrate these difficulties, the report included a survey of earlier studies addressing maritime issues beginning with the late 1880s. The first formal proposal acknowledging the special character and needs of archipelagos came in 1930 at the Hague Codification Conference. A draft convention, commissioned by the League of Nations, included the provision that “[in the case of archipelagos, the constituent islands are considered as forming a whole and the width of the territorial sea shall be measured from the islands most distant from the centre of the archipelago.” Reactions to this draft in 1930 were predictably varied with some governments rejecting the idea that “archipelagos should be considered as a single unit.” In this view, each island would have its own band of territorial waters. Other governments maintained that a “single belt of territorial waters could be drawn around archipelagos provided that the islands and islets of the archipelago were not further apart than a certain maximum. But there was no agreement on a maximum distance. A third position was that “archipelagos -must be regarded as a whole where the geographical peculiarities warranted such treatment.” With these views in mind, the Hague Conference proceeded by trying to set a maximum distance between islands, beyond which they could not be considered as a unit for purposes of delimiting their territorial sea. The waters contained in the unit would not be considered as internal waters, but as “marginal seas.” Conference participants, however, were unable to reach agreement on a maximum distance and nothing was included in the final convention on archipelagos.

In the years between the Hague Conference and the completion of the International Law Commission’s (ILC) 1956 draft articles on the high seas and the territorial sea, there was little progress. No archipelagic principle was included in the draft the ILC presented to UNCLOS I. The commentary accompanying the draft, however, noted that the commission had intended to supplement its general treatment of islands in Article 10 “with a provision concerning groups of islands,” but that like the 1930 Hague Conference, “the Commission was unable to over- come the difficulties involved.” “The problem is similarly complicated by the different forms it takes in different archipelagos. The Commission was also prevented from stating an opinion, not only by disagreement on the breadth of the territorial sea, but also by lack of technical information on the subject.

Unable to discern any pattern based on a survey of available scholarship and state practice, it was concluded in one of the reports that “every case must be treated on its individual merits. The geographical configuration of the archipelago concerned will be of primary importance for such determination, though other factors-such as historical and economical factors-may play a role.” It was thus left up to the states to decide what, if anything, should be done with the claims of mid-ocean archipelago states. At the heart of the international community’s difficulty in designing generally applicable standards for a variety of island groupings was concern over the implications for international shipping of recognizing territorial jurisdiction over large portions of the earth’s waters. Moreover, this dispute between the political/security interests of the archipelagic states and the passage interests of the maritime states had a third dimension: it pitted newly independent states against more established ones, many of whom had been colonial powers. Alluding to this division of interests, the Indonesian delegate to the 1958 Geneva conference remarked in exasperation that: “The fact that the nations most directly interested in the question were few and comparatively weak was no reason for leaving the problem unsolved.

Acceptance of the archipelagic principle by the international community through the 1982 Law of the Sea Convention was not only the product of hard and persistent bargaining by the Philippines and Indonesia. It was also an expression of the international community’s awareness of the two states’ need to find appropriate means of defining their national territory and exercising jurisdiction over that territory. Like all states which achieved independence in the rush to decolonization after World War II, both value highly the ability to chart their national courses without outside interference.

The same desire to achieve freedom from outside interference found expression in the 1976 Association of Southeast Asian Nations (ASEAN) declaration of the region as a Zone of Peace, Freedom and Neutrality (ZOPFAN). A Malaysian initiative, the declaration was based on a belief that “regional peace and stability can only be achieved if the region is free from outside interference and big power rivalries.” The lengths to which ASEAN members go to avoid conflict within the region is indicative of their recognition that regional conflicts which are not solved by powers within the region will be solved by powers from outside the region. The Philippines and Indonesia clearly recognized, in the evolution of the concept of archipelagic states within the 1982 Law of the Sea Convention framework, that an effective balancing of regional interest and a regional consensus on the rights of archipelagic states were necessary preconditions to success on the international front.Their efforts, through bilateral treaty frameworks, to arrive at a modus vivendi with their neighbours and principal partners, paid off in the Southeast Asian consensus at UNCLOS III. Recognition by the international community of the Philippine and Indonesian archipelagos fulfilled the two states’ desire for international acceptance of an exception to the norm in defining their territory.

As a result, the development of the concept of archipelagic states was not only a benchmark in the codification of international law, but also a further step towards the integration of new states into the Westphalian system. The concept acknowledged the special needs of some states with regard to their territorial integrity and political stability. However, opportunities for both conflict and cooperation continue to exist as a result of the acceptance of the archipelagic principle. The ability of archipelago states now to maintain that political stability and to advance their interests while maintaining regional harmony will be the test of their strength and vitality as independent states.