SECOND SESSION SECOND COMMITTEE PROVISIONAL SUMMARY RECORD OF THE THIRTY-SIXTH MEETING

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP82S00697R000300040045-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 12, 2016
• Document Release Date: March 19, 2002
• Sequence Number: 45
• Publication Date: August 14, 1974
• Content Type: MIN

Second Session
SECOND COMMITTEE
For participants only
A/CONF.62/C.2/SR.36
14 August 1971
PROVISIONAL SUMMARY RECOJ3)7.. OF THE THIRTY--SIXTH MEETING
Held at the Parque Central, Caracas,
on Monday, 12 August 1974, at 10.50 a.m.
Chairman: Mr.. AGUILAR Venezuela
RsppQrteur: Mr. NANDAN Fiji
CONTENTS
Archipelagos.(continued)
Corrections to this record should be submitted in one of the four working languages
(English, French, Russian or Spanish), preferably in the same language as the text to
which they;. refer. Correctioxks.should be. sent in quadruplicate within..-.five working days
.to the Chief, Document control, Room 9, Nivel Lecuna, Edificio Anauco, and also
incorporated in. one': copy of the record.
AS THIS RECORD WAS DISTRIBUTED CST i1 AUGUST 19711, THE TI'iJ -LIMIT FOR CORRECTIONS
WILL BE 2 .AUGUST 1971+.
The co--operation.of participants in strictly observing this time--limit would be
greatly appreciated.
C-51109
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UNITED NOONS
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ARCHIPELAGOS (A/CONF.62/L.4, A/CONF.62/C.2/L.22 and L.49) (continued)
Mr. DJALAL (Indonesia) recalled that in the plenary his delegation had
described the concept of archipelagic State as essential to the national unity,
political stability, economic, social and cultural cohesiveness and territorial
integrity of such States as Indonesia. Indonesia had always considered its land,
waters and people to be inseparably linked to each other; the survival of the
Indonesian nation depended on the unity of those three elements. Without the concept
of archipelagic State, most of Indonesia's waters would have become pockets of so-called
"high seas", open to activities which might endanger the country's unity, security and
territorial integrity. Indonesia had had unfortunate experiences in that regard.
Furthermore, Indonesia's waters would have become a separating rather than a unifying
factor, with an adverse effect on economic development.
Indonesia had proclaimed itself an archipelagic State on 13 December 1957. His
delegation hoped that the Conference would support the concept of archipelagic State;
for their part, the archipelagic States were prepared to safeguard the legitimate
interests of the international community.
The draft articles submitted by Fiji, Indonesia, Mauritius and the Philippines
(A/C0NF.62/C.2/L.49) were based on the proposals submitted previously to the Sea-Bed
Committee (A/AC.138/SC.II/L.48). As could be seen from-article 1, paragraph 1, the
draft articles did not apply to situations other than that of an archipelagic State.
The def riition given in paragraph 2 of the same article was slightly different from
that given in the articles submitted to the. Sea-Bed Committee: the word "mainly"
had been dropped and the words "and may include other islands" had been added. The
intention was to emphasize that an archipelagic State must be totally detached from a
continent and must.consist wholly of islands. The article distinguished between an
archipelagic State and. ..A,z archipelago of a State. The words "including parts of
islands" had been added in paragraph 3 to take into account the political and
geographical realities of archipelagic States; the words "interconnecting waters" had
been added to emphasize the unifying function of the waters, while the words "so
closely interrelated" had been retained as a factor determining whether a group of
i 'ltrkrds be conside red az. archipelago.
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Mir. Djala?, Indonesia)
Article 2 constituted one of the basic elements of the concept of archipelagic
State since it ensured the archipelagic State's right to safeguard its national
unity and territorial integrity. His delegation had already explained in the Committee
its views on the relationship between the archipelagic State concept and the economic
zone. Paragraph 2 of the article was designed to prevent the arbitrary drawing of.
baselines. The sponsors had rejected the idea of introducing a mathematical formula
since that might result in arbitrariness and would defeat its own purpose. They did
`not, however, exclude the possibility of a mathematical approach.
Indonesia was aware of the needs of its immediate neighbours and assured them that
in the spirit of co-operation which was being fostered in the region, notably through
the Association of South-East Asian Nations (ASEAN), it would continue to seek a
mutually acceptable accommodation of their interests. Certain understandings had
already been reached as a result of bilateral and regional discussions. It was indeed
in a spirit of goodwill that paragraph 5 had been inserted in article 2. His
delegation was also aware of the problem of traditional fishing in Indonesian waters;
discussions on that topic had also begun.
Article t stipulated the obligations of the archipelagic State, including respect
for the right of innocent passage of foreign ships through archipelagic waters. The
article had been redrafted to acco.-modate more adequately the interests of international
navigation. His country was willing to support a Convention recognizing normal
commercial navigation through traditionally used channels in archipelagic waters.'
Article 5 was basically the same as the original article. However, some drafting
improvements had been made: for example, paragraph 6 now clearly determined the scope
of the rights of the archipelagic State in enacting' regulations relating to passage
th"rough archipelagic waters or sea lanes; the terra "inter alia" had been dropped. The
paragraph relating to the passage of warships had also been redrafted.
His delegation wished to stress that the draft .articles were without prejudice to
the established rules relating to deeply indented coastlines or to the fringe of
islands along a coast, which fell under the regime'for the terrritorial sea.
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Mr. HARRY (Australia) commended the sponsors of document A/CONF.62/L.4
because they had. pointed the way to articles that would form part of.a comprehensive
convention on the law of the sea. In the past Australia had drawn attention to the
importance of the concept of archipelagic States, because it-was itself surrounded by
archipelagos. Indeed, his delegation's statement on the item under discussion would
be made by a representative of the Government of Papua New Guinea - an archipelagic
self-governing' territory that was soon to become an independent State.
Mr. SIAGURU (Australia) said he was speaking as a representative of Australia
because there was no other.way for his emerging self-governing country, Papua New
Guinea, to address the meeting.
The position of Papua New Guinea was different from that of the Cook Islands.
Formal independence at the earliest practical date was the aim of the Governments of
Papua New Guinea and Australia. It was his Government's firm intention that Papua New
Guinea should emerge as a single united nation. But despite strong bonds of.culture,
outlook and economic interdependence, the geography of the island-State remained a
potentially divisive influence. Papua New Guinea understood the problems and
aspirations of its archipelagic neighbours because it shared those problems and
aspirations. It was therefore encouraged by the support given to the archipelagic
concept and saw in that concept a solution to many of its own difficulties. In
seeking that solution, it was conscious of its responsibility to the international
community to provide a degree of freedom of passage consistent with its problems of
security, national unity and resource jurisdiction. The archipelagic solution was a
good example of what could be achieved through the process of developing legal
concepts to meet plain facts of geography and national identity.
In putting forward his country's claim to archipelagic status, he was aware that
the principle of geographical expediency had other implications. He expressed
sympathetic concern for other developing countries for whom geography had created
particular problems. The reasonable demands of all those countries must. be met,
Mr. OGISO-(Japan) said that Japan was prepared-to give sympathetic
consideration to the adoption of the archipelagic concept as part of the general
regime for the new law of the sea. There seemed to be a growing awareness of the need
to give some form of recognition to the special concerns of archipelagic countries.
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(Mr. Ogiso, Japan)
Since Japan itself consisted of a number of islands, it could understand those
countries' wish to preserve their political, historical and geographical integrity.
His delegation believed, however, that the establishment of a regime of
archipelagos should not result in the undue curtailment of the legitimate interests of
other'States or of the general interests of the international community. Those
interests should be brought into harmony first, by providing an objective and
reasonable definition of an archipelagic State; second, by safeguarding freedom of
navigation for international maritime traffic; and, third, by providing. adequate
protection of the existing navigational and other rights and interests of the countries
in the region. His delegation attached great importance to those three points, and
its final position depended on their acceptance.
The archipelagic concept should apply only to archipelagic States that were
constituted wholly by one or more archipelagos. His delegation believed that it
would be against the interests of the international community if, as a result of a
vague definition of an archipelago, there was to be a proliferation of'claims.- There
was therefore an obvious need for objective criteria. Such criteria could be of two
dimensions: limitation in the form of a water/land ratio to be permitted within the
archipelagic baselines, and limitation of the maximum permissible length of such
baselines. That was-the approach contained in document A/AC.138/SC.II/L.1 . His
delegation could support the proposal in that draft that the ratio of the area of the
sea to that of land territory inside the perimeter should not exceed five to one. It
could also support the proposal in the same draft that the archipelagic baseline should
not exceed 48 nautical miles, although it was prepared to consider an extension of that
length if the facts bore out the view of the archipelagic countries that a l8-mile
limit would. not be sufficient.
His delegation believed that freedom of navigation should.`be preserved as far as
possible in the interests of the international community.'`It had noted with interest
the statement by the Indonesian representative to the effect that Indonesia was willing
to support a convention providing that normal commercial navigation through
traditionally used channels in archipelagic waters should be unrestricted and.fully
recognized. The fact'that some archipelagic waters were-situated at the-crossroads of
vital inter-oceanic communications made it vital to provide for maximum free and
.. .
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(Mr. ogiso, Japan)
unimpeded passage. The right of passage through such waters should certainly be.more
than the simple right of innocent passage. His delegation therefore believed that the
right of transit passage by foreign vessels-should be provided for in respect of
archipelagic waters used as routes for international navigation, and the right of
innocent passage by foreign vessels, including fishing vessels, should be ensured in
other parts of archipelagic waters.
Application of the archipelagic principle would entail problems relating to the
existing uses of the sea. For example, it might have the effect of including in
archipelagic waters some parts of the high seas which had been fished traditionally for
many years. It might also affect existing.submarine:cables and pipelines,.including
those maintained by Japan singly or jointly with other countries of South-East. Asia?
His delegation had taken careful note of the statement by the Indonesian delegation to
the effect that Indonesia was prepared to discuss bilaterally with its neighbours the
problem,of the traditional interests claimed by neighbouring countries in archipelagic
waters. Furthermore, it believed that the rights and interests of States relating to
the existing uses of the sea in the areas enclosed by archipelagic baselines, including
rights and interests pertaining to fishing and the laying and maintenance of submarine
cables and pipelines-, should be protected in the future Convention.
In the light of those considerations, his delegation considered that the definition
of an archipelago and the provisions concerning the regime of navigation and protection
of existing uses of the sea contained in document A/CONF.62/L.4 were far from
satisfactory. It hoped that they could be improved by informal consultations with
countries directly concerned with archipelagic problems.
Mr. DUDGEON (United Kingdom) said that the archipelagic concept was one not
recognized in existing. international law. However, as the representative of Australia
had said, it was the Conference's duty to develop concepts of international law which
would take account~of the realities of life. His delegation had therefore stated that
it was willing'to develop a concept of the archipelagic State with due regard to the'-
needs and concerns of those countries which claimed archipelagic status. It had also
said that an archipelagic State must be defined in accordance with objective criteria
and that a satisfactory regime IoT navigation through archipelagic waters must be
developed to cater to the needs of the international community. That was why his
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(Mr. Dudgeon, United Kingdom)
delegation had submitted a--draft article on the rights and duties of archipelagic
States (A/AC.13$/SC:II/L' 44) to dub-Committee II of the Sea-Bed Committee. Since the
time of its submissiori,`the principles embodied in the draft article had received many
expressions of support. He therefore requested that when the officers of the Committee
prepared an informal working paper on archipelagos, they should see that it reflected
the provisions of document A/AC.138/SC.II/L.'l as one of the main trends of opinion of
the Conference.
His-delegation had not yet had'an opportunity to study fully document
A/CONF.62/C.2/L.49, which had been ably introduced by the representative of Indonesia,
and would accordingly reserve its comments until a later stage.
Mr. UZUNOV (Bulgaria) said his delegation supported the claim by the
archipelagic States for the establishment of archipelagic waters with a territorial sea
beyond them, and for sovereign rights over the waters together with their bed and
resources. The delimitation of archipelagic waters should not however, lead to any
accessive extension of the waters themselves or of the area of the territorial sea. A
glanee"at the map and a careful analysis of the drafts -submitted showed that the
archipelagic States were trying to exploit their geographical position and were laying
claim to broad expanses of archipelagic waters, territorial sea and economic zone.
Consequently, the straight baseline method should not tare into =^rount drying reefs;
the future Convention must specify the limits for straight baselines enclosing
archipelagic waters and serving as baselines for the measurements cif territorial seas
and economic zones. Freedom of passage for all types of vessels of all flags without
'discririnationmust be preserved. That was not to say, of course, that vessels would
have a, right to roam-`at will in archipelagic waters. The archipelagic States would
have the right to determine routes, andestabwish corridors, while vessels would be
bound to observe the rules of passage. The principle of free passage through
archipelagic waters did not affect the economic interests and security of the
archipelagic States, and as a traditional principle it worked for the benefit of
neighbouring and other countries. In view of the foregoing, his delegation could not
agree with the contents of articles 4,..and 5 of document A/C0NF.62/C.2/L.49. The demand
for freedom of passage through archipelagic waters was completely legitimate, because
those waters were extensive and most of their lay on important international routes.
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(intr. Jzunov, Lulgs."ia)
His delegation maintained strictly that only true archipelagic States consisting
of one or more archipelagos should have the right to establish archipelagic waters.
The right should not be extended to coastal continental States with neighbouring
islands or islets. Existing laws must not undergo fundamental changes that would
confuse international marine law.
His delegation would be submitting specific proposals amending document
A/CONF.62/C.2/L.49. The five main points of the amendment would be: (1) a definition
of an archipelagic State., (2) the extent of archipelagic States', sovereignty;
(3) the obligations of archipelagic States to allow free passage through archipelagic
straits and other areas of archipelagic waters; (4) the obligations of, vessels
passing through archipelagic waters; (5) the obligation of archipelagic States not
to impede shipping.
'His delegation felt that the question of establishing a category of. archipelagic
waterd must be considered in conjunction with other issues of signal importance
'refore the Conference.
Mr. RIPHAGEN (Netherlands) drew attention to the general tendency among
States to round off their territory by including in the notion of internal waters
such areas as lay between parts of the territory of one and the same State. That
tendency was recognized in the 1958 Geneva Convention on the Territorial Sea.
Proposals before the Committee were now advocating the extension of that tendency.
to include the notion of archipelagic waters. That in itself was quite comprehensible.
The drafters of the 1958 Convention seemed to have had uppermost in their minds the
situation of continental States, the coastlines of which presented some peculiarities.
Although articles 4, 7 and 13 could apply to the coastline of islands, the emphasis
seemed to lie on the peculiarities of coastlines rather than on the special
characteristics of particular States. It must however be borne in mind that
international law was primarily a law between States and that island States - States
which consisted of islands or groups of islands only -- also existed and for them
the rounding off of territory must.be viewed in a different context. In such States,
there was no mainland to which islands were attracted but only the mutual. attraction
between a group of islands.
In such cases, the precise methods, used to fix straight baselines, as set out
in the 1958 Convention, could hardly be applied, but the Committee was dealing with
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(I7r Riphaen, Netherlands )
human beings and with social, economic, historical and political realities. Some
of those realities had fact been reflected in the Convention, which, in article 1+ (2)
and (4), attached relevance to whether the sea areas lying within the lines were
sufficiently closely linked to the land domain and to economic interests peculiar to
the region concerned, the importance of which were clearly evidenced by long usage.
However, the fact that two or more islands or groups of islands together formed a
State was of decisive importance in determining the status of the waters lying
between the islands of the group. The distance between the islands and their
importance for the population could not naturally be wholly overlooked, but those
were factors which might influence the social cohesion of the group of islands,
which was the relevant fact.
Normal routes of international navigation often led through waters lying between
such islands and the concept of archipelagic waters should be no obstacle to their
use. That-idea was reflected in articles 4 (5) and 5 (2) of the 1958 Convention in
respect of the application of the system of straight baselines. It was gratifying
to note that the principle of respecting the interests of the world community in
communications was thus generally accepted:
Mr. NX-DAN (Fiji) said that his delegation, together with those of Indonesia,
Mauritius and the Philippines, had consistently reiterated their views and aspirations
as to the status of archipelagic States in international law. That status had been
seriously considered at the two earlier Conferences on the Law of the Sea, but'the'
problem had not been resolved. It had been raised anew before the Sea-Bed Committee,
which had agreed that the special status of archipelagic States should be recognized
in the projected convention on the law of the sea.
his delegation was aware of the ;'ifficulties involved in giving effect to that
status without infringing the legitimate interests of other States. In document
A/AC.138/SC.II/L.15, which had been submitted to the Sea-Bed Committee, the four
countries had sought to establish the fundamental principles applicable to an
archipelagic State, including its rights over the waters within its baselines. and the
right of other States to innocent passage therein.
The general principles advanced had gained considerable support in the Sea-Bed
Committee, which had asked for clarification on how they would be put into practice.
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(Mr. TJ' a :aan, Fiji)
Accordingly, the draft articles embodied in document A/AC.138/SC.II/ .48 had been
submitted to the Committee by Fiji, Indonesia, Mauritius and the Philippines as a
tentative basis for discussion.
The draft articles had stimulated debate, provided deeper insight into the
problem and provoked some criticisms. As a result, the sponsors of the articles
had revised them in document A/CONF.62/C.2/L.49 so as to reconcile the views of
other States with the sponsors' basic objectives.
The sponsors had been criticized in the past for a lack of objectivity in
formulating the rules for passage through archipelagic waters. In the present
revised draft articles, they had set out in greater detail the provisions on the right
of innocent passage and on the extent to which archipelagic States could regulate
such passage. They had endeavoured to define the, considerations that must govern
the archipelagic States' designation of sealanes and prescription of traffic
separation schemes. They had set limitations on their.powers to make laws and
regulations, and the measures they would adopt would be confined to certain specific
areas, and would not conflict with the provisions of the convention or other
applicable rules of international law.
The sponsors' aim was to impose minimum limitations on the innocent passage of
foreign ships consistent with the need to confine particular classes or types of
ships -to special sealanes in the interests of the archipelagic States' security.
A delicate balance had to be struck to ensure minimum interference with the interests
of maritime States and the necessary safeguards for the legitimate interests of
passage States. The draft articles in document A/CONF.62/C.2/L.1+9 sought to reconcile
those conflicting interests.
His delegation wished to dwell on three aspects of the document, namely: the
composition of archipelagic States; the precise definition. of an archipelago; and
the effect of the draft articles on the concept of an economic zone.
An archipelagic State was defined as being constituted wholly by one-or more
archipelagos and other islands, where the interrelationship between land and water
made them an intrinsic entity. That did not, however, exclude a State which, although
composed of one or more archipelagos, also had under its sovereignty other geographically
isolated islands. That was the case with Fiji, which consisted of one archipelago and
three other islands situated at some distance from the main archipelago. Under the
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(x?r. P?andan2 Fiji)
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existing draft, such islands were not included within the baselines from which.the
territorial sea would be measured. The delegation of Fiji considered that those
islands should have the same status as others, with their own territorial sea and,
where applicable, their own economic zone.
In article 1, paragraph 3, the sponsors had attempted to clarify the definition
of an archipelago by reference to the integral interrelationship between the islands,
waters and other natural features forming its intrinsic entity. They had been unable
to arrive at a more precise mathematical formulation, which would inevitably be
arbitrary. In their view, an archipelago was an archipelago if it met the criteria
which they had established. No specific criteria had been established for coastal
archipelagos.
The draft articles would have virtually no effect on the concept of an economic
zone. If a 200-mile zone were measured outwards from the.coasts of each island, the
area of sea affected would be almost identical with that measured outwards from, the
archipelagic baselines. The only effective difference would be that the.outer
perimeter of the economic zone would be demarcated by straight lines rather than
curves, whose exact location on charts would be harder to ascertain. The only
exceptions would be where component islands were situated over 200 miles apart, which
was not the case with the archipelagic States co-sponsoring the document.
Mr: FRASER (India) explained that India had over 1,280 islands and islets,
of which approximately half constituted the archipelago of the Andaman and
Nicobar Islands and that of the Lakshadweep. India?s other islands were located
within its territorial waters or scattered through the Bay of Bengal and the
Arabian Sea.
The archipelagic concept-had been receiving increasing support, especially from
the developing countries; at least 29 countries had spoken in favour of it in the
plenary meetings of the Conference. Furthermore, no.less than 11 countriesVhad
supported the idea that off-lying archipelagos constituted an integral part of the
territory of the coastal State.
The concepts of archipelagos and of archipelagic States were closely linked;
his delegation could view,their implications sympathetically if the following
considerations were borne in mind: (a) that the body of water which was enclosed by
drawing straight baselines joining the outermost points of the outermost islands
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(Mr. Fraser , ' Iiidia)
constituting an archipelago should be reasonable; (b) that the channels of navigation
traditionally used by' international shipping, where the right of free transit had
hitherto been exercised, should be respected; (c) that the principle should apply
to the Andaman and Nicobar Islands and also to the Lakshadweep Islands..
His delegation was pleased to state that those ideas were largely embodied in
the comprehensive working paper contained in document A/CONF.62/L.1+, of which his
delegation was a sponsor. Articles 5 to 8 of the working paper dealt with the concept
of archipelagic States, and articles 9 to 11 with archipelagos that were regarded as
forming part of a coastal State. The archipelagic State concept recognized the
geographical, economic and political. unity of the. archipelagos constituting a single
State; it also recognized the sovereignty of the archipelagic State over the waters
enclosed therein,, and ensured a regime of passage for international navigation. It
acknowledged the right of a coastal State. having archipelagos which formed an,
integral part of its territory to apply the principles applicable to archipelagic
States, on the clear understanding that such principles would apply to those archipelagos
only. Furthermore, such out-lying archipelagos could not be joined with the mainland
of the coastal State 'by straight baselines.
If the provisions of document A/CONF.62/L.4 were adopted, international law would
cover three types of archipelagos: (a) archipelagos which constituted a fringe 'of
islands along the coast of the State; (b) archipelagos which cons ituted a single
archipelagic State,; (c) out-lying archipelagos which constituted an integral part of
a coastal State.
The concept of the archipelagic State would not prejudice the existing regime of
the coastal archipelago. Similarly, the application of the archipelagic principle
to out--lying' archipelagos of a coastal State would prejudice neither the established
regime of the coastal archipelago nor the concept of the archipelagic State.
Mr. J;ANNEL (France) said that his delegation?s position on the question
of archipelagos was well known. It sympathized with the concerns of those States
whose territory was purely insular and it was in favour of .a solution that would give
greater cohesion to the different parts of such territories. Obviously, that could,
only be done if the sovereignty of the State over the islands was recognized in a
non-discriminatory manner.
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(Mr. Jeannel, France)
Some proposals, contrary to existing international law, were aimed at establishing
a distinction between the sovereignty exercised by the State over islands and that
exercised over parts of a continent. Such an approach would be a legal monstrosity
because it would lead to a division of the sovereignty of the State. It would also be
thoroughly co"jectionable from-another point of view: it would threaten the sovereignty
of some States while extending that of others over large portions of the sea. The
arbitrariness of such a distinction was obvious; it was quite without any legal basis
and would only heighten certain geographical inequalities.
Having ruled out proposals of that kind, his delegation would consider a special
regime for archipelagos, providing that it did not unduly hinder freedom of sea and air/
navigation in the vast spaces included in the archipelagos. Of course,.the regime
should be applicable to all archipelagos, whatever their type and location, because
their problen were similar.
His remarks regarding the indivisibility of the sovereignty of the State should not
be interpreted as leading to the establishment of rules regarding delimitation of ocean
space between neighbouring or opposite States. That was a different problem, and it
should be dealt with separately.
Mr. HERRERA CACERES (Honduras) said that although the term "archipelago" lacked
a precise legal meaning, it was used to refer to a group of islands, and logically, that
meant more than two islands. He would use the term to refer not to archipelagos situated,
in historic waters but to groups of islands located in the open sea and governed by the
general rules of. international law.
A distinction should be made between oceanic and coastal archipelagos. The former
were those situated in mid-ocean at a considerable distance from land, whereas the latter
were situated in the immediate vicinity. of the land and closely linked with it, forming
a homogeneous geographical whole. His statement would be limited to the latter type.
Honduras's archipelago Islas de la Fa_.ia was a Departnient..o.f his country with close
geographical and economic dependence on the mainland. Its nearest. island was 20 miles
from shore and the distance: between the islands, not counting intermediate cays and
shoals, did not exceed 16 miles. Honduras had felt it necessary to recognize the
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ac (Mr. Herrera Caceres, Honduras)
geographical, political and economic unity of that archipelago by giving it legal status,
and in the area where it was located, the baseline of Honduras's territorial sea, which
for most of the Atlantic coast followed. the low--water line, was drawn to join the
mainland with the appropriate points on the islands. The waters within those baselines
were therefore internal waters.
His delegation believed that the provision of article 5 of the Geneva Convention on
the Territorial Sea a Convention which was not binding on Honduras - regarding the
right of innocent passage in areas enclosed as internal waters, was legally unacceptable
and it disregarded .a. number of.important factors. The second revision of informal
Working Paper No. 1 included that same provision as a principal feature and was therefore
unacceptable to his delegation.
In areas which had formerly been part of the high seas and.had then become
territorial waters, the right of innocent passage in the traditional sense of navigation
through the territorial sea to the territorial sea of another State or to the high seas
was fully justified. In areas which had been part of the territorial sea and had been
enclosed as internal waters, however, no such right existed. By international custom
the right of innocent passage applied solely with respect to territorial waters, whereas
access to internal waters was always subject to the authorization of the coastal State.
Secondly, coastal archipelagos varied in character from the'point of view of
maritime communications. Maritime areas generally used for international navigation and
maritime areas used mainly as an access route to the mainland and as a necessary medium
of communicatio'n between a coastal archipelago and the mainland on which it depended,
were quite different and they could not be considered juridically as equivalents. That
question had been discussed during the 1930 Hague Conference for the Codification of
International Law, where a number of delegations had. maintained that the right of passage
which foreign ships might enjoy'in such waters would have to be subject to different
conditions and be of a different nature from the traditional right of innocent passage
through the territorial sea.
The question had.'come up again at the 1958 Geneva Conference, where a number of
delegations had felt that'the weaning of `innocent passage" should not be distorted by
applying it to-an area which was not territorial sea, but internal waters where no such
right existed. Other delegations had maintained that a distinction based on whether or
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(Mr. Herrera Caceres, Honduras)
not the waters were habitually used. for international navigation would be impractical
and would. only lead to confusion. In the end, an amendment to that effect had been
adopted by the Conference by 21 votes to l1, with 23 abstentions.
Honduras believed that that provision was res inter alios acta, ana that it tended
in its present form, to distort the basic difference between two areas of the sea which,
.although both integral parts of the territory of the coastal State, had traditionally
been distinguished by the fact that the right of innocent passage did not exist in one
of them. If there had to be innocent passage through archipelagic waters, due respect
should be given to the sovereignty of the coastal State. over that part of its maritime
territory, which was even more closely linked to its interests and needs than the
territorial sea.
His country did not object to allowing and regulating the passage of merchant
vessels through such waters, which had traditionally been used for international
navigation. However, military, government and research vessels should navigate in those
waters only with the prior authorization of the coastal State.
Mr..-TOT.;NTINO (Philippines) said that as early as 1955 the Philippines had
submitted a"position paper which stated that all waters around, between and 'connecting
the different',islands of the Philippine Archipelago, irrespective of their'width'or
dimension,. were necessary appurtenances of its-land territory, forming an?integral part
of the national..or inland waters, subject to the exclusive sovereignty ofthe Philippines.
His delegation had advanced that position at the previous Conferences on the Law of""the
Sea, under the principle of historic waters. Because it had not been adopted atthe`1960 Conference, and for other reasons, the Philippines had reused to sign the dour"-
1958. Geneva..Conventions. It had been suggested at the 1958 Conference that" frequently
the only rational and practical solution was to treat such outlying archipelaigos:as.a
whole for the delimitation-of territorial waters by drawing straight baselines from the
outermost. points: of the archipelago, i.e., from the outermost points of the constituexit
islands, islets and rocks. Following that suggestion., the Philippine Congress""had
approved a=law in 1961 defining and describing such baselines. His delegation therefore
joined in proposing that the Conference include articles on the regime of archipelagos
in a comprehensive convention on the law of the sea.
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(Mr. Tolentino, Philippines)
Some delegations in the Sea-Bed Committee and at the Conference had expressed
sympathy for or support of the concept of archipelagos. On the other hand, other
delegations had voiced concern and raised questions on the content and details of that
concept. The draft articles'in document A/CONF.62/C.2/L.l+9 took into account some of
the observations that'had been made by delegations since the original draft"articles had
been tabled in the Sea-Bed, Committee. Those articles applied only to outlying or oceanic
archipelagic States, no part of which State was on a continent or mainland, and which
had its own independent Government. Secondly, although an archipelagic State might
include other islands which did not geographically form an integral part of the
archipelago of such State, the drawing of baselines by that State was limited only to
the archipelago proper. Those baselines were not to be extended to the other islands,
and the waters between the archipelago proper and the other islands would not be
archipelagic waters. Thirdly, although the archipelagic State might restrict innocent
passage of foreign ships through the archipelagic waters to the sealanes designated by
it, if it did not establish such sealanes, then the entire archipelagic waters would be.
open to innocent passage of foreign ships. Fourthly, in designating sealanes, the
archipelagic State must take into account the recommendations or technical: advice of'
competent international organizations, the channels customarily used for international
navigation and the special features of particular channels and ships. Fifthly, the
authority of the archipelagic State to make laws and regulations relating to the passage
of foreign ships through the archipelagic waters was subject to two important limitations:
such laws and regulations must not be inconsistent with the provisions of the draft
articles in document A/CONF.62/C.2/L.49 and rust have due regard to other applicable
rules of international law; such laws and regulations could not go beyond the subject
matters listed in paragraph 6 of article 5, thereby preventing the possibility of
surprise to the maritime community. Those features of the draft articles indicated the
willingness and flexibility of the sponsors to consider views of other delegations in
an attempt to reach reasonable mutual accommodation. There were other matters such as
the definition of archipelagos, the establishment of land-water ratio and the fixing of
maximum length of baselines on which the sponsors were willing to negotiate.
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(4r. Tolentino, Philippines)
His delegation' would consider any reasonable proposal for the regime of
archipelagos as long'as the essence of the archipelagic concept was maintained. That
essence was-the dothinion and sovereignty of the archipelagic State within its baselines,
which were so drawn 'as to preserve the territorial integrity of the archipelago by the
inseparable unity of the land and water domain. The preservation of that essence of
the archipelagic concept was vital to the Philippines and formed part of its basic
national policy.
The waters around, between and connecting the different islands of the Philippine
Archipelago had always been highways of communication between the islands and had
brought the people together under one nation and one sovereign State.. Those waters,
were'small in comparison to those of, say, Hudson Bay which one State now claimed as
part of its national waters under historic title. Their protection from intrusion was
therefore vital,to the national security of the Philippines. His delegation would
therefore find't impossible to agree to qualifications of the archipelagic concept
that would subvert the sovereignty of the archipelagic State within the baselines or
make that concept itself meaningless. While various proposals before the Conference
would create-new rights and benefits that had never been asserted and?had never been
enjoyed, the proposals regarding archipelagos would simply give international
recognition to an existing right long asserted, exercised and enjoyed.
Unlike the 1958 Conference which had worked on the basis of an almost entirely
juristic draft prepared by the International Law Commission; the present Conference
was engaged in the more difficult task of reconciling divergent positions and proposals
dictated largely by respective national interests. The Conference was not intended
to lay'down purely academic formulae but to agree on solutions based on the facts of
national and international life.
fir. PP UPQIyG (Thailand) said that the question of archipelagos was of
special importance to his country which was situated in an area of semi-enclosed sea,
with two major archipelagic States as its close neighbours and a number of archipelagos
or groups of. islands and islets in the seas of the South-East Asian region in which
Thailand was situated.
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(Mr. Panu-ong, Thailand)
While his delegation was anxious to see the general question of archipelagos
settled and the concept translated into a rule of law in the new convention on the
law of the sea, it wished to have the issue of archipelagic States treated separately
from that of archipelagos which did not have the status of a State.
There were basic differences between the concept of archipelagic States and that
of non-State archipelagos. Firstly, the elements justifying the concept of
archipelagic States such as the Philippines and Indonesia, were not only geographical
but also political, economic and historical, whereas the concept of an archipelago
was purely geographical and topographical. Secondly, the status of the archipelagic
waters enclosed by the baselines was sui generis and-applied specifically to the case
of archipelagic States; it was not to be confused with the insular waters of non-State
archipelagos.
His Government was favourable to the principle of archipelagic States in'general,
but maintained that the legitimate interests of neighbouring countries which were
affected by the application of the new concept in international law should be
considered and accommodated.
The application of the new concept, as originally introduced by Fiji,. Indonesia,
M ,uritius and the Philippines, would create a situation affecting neighbouring countries,
such as Thailand, which were enclosed by waters of archipelagic States. Firstly,
there was the problem of communication and access to the open ocean space. The
proposals for international navigation did indeed provide for innocent passage
through designated On the other hand the enclosed countries needed
passage through the waters of archipelagic States, not only to engage in international
navigation or trade, but to enable them to reach the open sea for other purposes
as well, or to communicate with other parts of their territories. Their need for
unsuspendable innocent passage was therefore more imperative, and the passage might
require other routes in addition to,sealanes designated primarily for international
navigation. Secondly, account had to be taken of the interests of those enclosed
countries in the living resources. of the areas regarded in international law as part
cf' the high seas. His delegation's position was that where archipelagic waters or
territorial waters extended to such arec%,7i as a result of the application of the
concept, the interests and needs of the immediate neighbours of the archipelagic
States had to be recognized. In view of the complicated nature of the fisheries
'juestion and of other problems peculiar to each region, the modalities of access to
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(Mr. Panupong, Thailand)
the living resources in those areas should be agreed'upon between the countries
concerned within the framework of regional or, if necessary, bilateral arrangements.
Owing to its special geographical position and to its substantial economy-dependence
on the living resources of the sea, Thailand had no alternative but to stand firm on
its position that the recognition of those two aspects of the interests of its
immediate archipelagic neighbours must have a place in the provisions of the convention.
In his delegation's view the best course would be a mutual accommodation. by way
of a formula taking into account the interests and rights of both the archipelagic
States and their immediate neighbours. Rather than being purely a case of diplomatic.
accommodation on specific issues between States, it was in fact a case of-mutual
accommodation in legal principles between rights and interests as recognized by
lex lata and rights as proposed by lex ferenda, i.e.,-an accommodation which should
not result in establishing new rights for one State in such a manner as to eradicate
or'suppress altogether the legitimate and indispensable interests of others.
His delegation thought that any divergence of views was less a question of
general principles than of adjustment to each other's interests. It wished at the
same time, to place on record that it reserved the right to submit its draft articles
if and when the circumstances so required.
Fir. STEWART..(Bahamas) said that his delegation, as expressed by its
ister,...for Foreign Affairs in the Plenary, hoped that the Conference would arrive
at the formulation of internationally acceptable norms for the determination of
criteria for the drawing of baselines befitting peculiar and unique circumstances.
The Bahamas.was a unique, case which had long been regarded as a geological enigma.
The islands comprised a realm of predominantly shallow waters which were largely
non-navigable except by vessels of the shallowest draught.
The Bahama Banks presented a special problem of delimitation since both the
ratio of very shallow water to dry--land areas and the steepness of the slopes appeared
to be unparalleled. If those unique physio-geographic conditions were disregarded
and conventional baselines at the low-water level used, bizarre effects would result.
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(l,,r?. Stewa.-t , Baha.las )
The Bahamas claimed the are. of the Bahama Banks with uncharacteristic modesty
since the Bahamas, to Bahamians, meant more than just the islands and the cays,
but included both the Great and Little Bahama Banks. Those areas of shallow water
had historically been regarded as parts of the territory of the Bahamas: a grant,
encompassing the banks as well as the islands and the cays, had been made to the
Lord Proprietors by King Charles of England in 1670.
It had been suggested that archipelagic States, in drawing baselines, should
>
fulfil certain criteria including the formula of maximum length of baselines. The
length--of-baseline criteria became irrelevant when applied to the unique circumstances
of the Bahama Islands and Banks and was therefore unacceptable to his delegation.
Nor could his delegation accept a system which divided its nation into several
archipelagos since it wished to preserve the political and psychological unity
of the Bahamian people.
His delegation could accept a system which allowed the drawing of the baseline
to and from low-tide elevations, lighthouses and other natural features of the
political entity irrespective of the length of such baselines.
The Bahamian people, being modest and reasonable, had no intention of interfering
with the freedom of navigation through the sev'-eral straits which traversed their
archipelago. Living on the pivot of the Caribbean and the Americas and in keeping
with their declared policy of friendship and good neighbourliness toward all nations,
the people of the Bahamas sought a solution that would protect their vital interests
while accommodating the legitimate interests of the international community and
safeguarding those of their neighbours.
His delegation hoped that all participants of the Conference would be equally
reasonable.
The ineetinf, rose at 12.55 p.m.
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