Legal Status Of Continental States' Outlying Archipelagos As Archipelagos

The purpose of the archipelagic regime is to protect the unity of archipelago and special political,security,environmental and economic interests as corollaries of this unity.Even though the outlying archipelagos of continental States and the archipelagos of archipelagic States deserve the same level of protection,the archipelagic regime provided in Part ? of United Nations Convention on the Law of the Sea(hereinafter the Convention)is only applied to the archipelagic states but not the continental states.Given the existence of such lacunae in the Convention,the dissertation introduces the archipelagic concept and its evolution,analyzes several articles in the Convention which may be applied to outlying archipelagos in a limited manner and,finally,focuses on customary international law concerning outlying archipelagos of continental states.The first Chapter addresses the archipelagic concept and the evolution of archipelagic regime.It opens with the understanding of the definition of archipelago in Article 46 of the Convention.The natural unity of archipelago should be understood in a comprehensive way,thus including but not limited to proximity/vicinity of features.From perspectives of preparatory work of the Convention and State practice,the word “intrinsic” in the definition of archipelago should not be understood as meaning that the archipelago must have its inhabitants.The legal criteria of classification of coastal archipelago and outlying archipelago is flexible to some extent.Then,this chapter introduces the history of the evolution of archipelagic regime in the law of the sea,including the work by some research institutions of international law and United Nations Conference on the Law of the Sea?-?.As drafting history of the Convention indicates,the regime of outlying archipelagos of continental states is an unsettled matter.For the sake of resolving this unsettled matter,the customary international law can be applied,since the preamble of the Convention allows this application and,moreover,Article 5 of the Convention does not exclude such customary international law.The second chapter deals with limited applicability of several articles in the Convention to outlying archipelago of continental State.From perspectives of the context of the Convention and State practice,Article 7 is not confined to continental coasts,and therefore could also be applied to coasts of oceanic islands/outlying archipelagos in a limited manner.Besides,this chapter also tries to respond to somequestions when applying straight baselines,namely,the non-existence of any mathematical criteria for the length of straight baselines,the necessity of enclosure of straight baselines,and the prohibition of any basepoints located in the sea.Lastly,this chapter evaluates the limited role played by Articles 6 and 13 in the unification of outlying archipelagos.The third chapter discusses continental States' practice concerning their outlying archipelagos.Firstly,with the help of a few illustrative maps,this chapter analyzes archipelagic straight baselines by continental States to ascertain whether it is mere application of Article 7 of the Convention or not.Based on the above analysis,it is found that the overwhelming majority of State practice cannot be attributed to the mere application of Article 7.Secondly,this chapter examines the practice of Colombia and Greece in their outlying archipelagos which indirectly achieve partial unification of archipelagos.Thirdly,this chapter also scrutinizes the practice of New Zealand,Mexico and Chile,and found that although they do not employ the archipelagic regime to their outlying archipelagos,they strongly support this regime.Fourthly,Yemen hasn't employed the archipelagic regime to its Socotra Archipelago and neither has it made known its position.Lastly,the United States not only hasn't employed the archipelagic regime to its outlying archipelagos,but also protested other continental States' relevant practice.The fourth chapter evaluates the continental States' opinio juris accompanying their archipelagic practice and,especially,the attitudes of other states in response to the practice.On the one hand,the analysis of potential protests listed in Supplemental Written Submission of Philippines and Roach's article reveals that those protests cannot be read as obstructing the formation of customary international law.On the other hand,with a view to ascertaining the existence or not any indirect recognition of the archipelagic regime,this chapter also examines some fisheries agreements and delimitation agreements.In the fifth chapter,in terms of “specially affected States”,it is argued that their practice is sufficiently widespread and representative,as well as consistent.In view of the existence of relevant opinio juris,it is established that the customary international law concerning outlying archipelagos of continental States,though not full-fledged,has been formed.As to the content of customary international law,continental States,in a general sense,are entitled to adopt a regime to unify their outlying archipelagos,including thestraight baselines.And In a concrete sense,the archipelagic regime of continental States is sui generis,and is neither the application of Article 7 nor the application of Article 47.The sea areas enclosed by straight baselines are internal waters.At the same time,coastal States should also take account of navigational interests of third states.In the sixth chapter,it is argued that Xisha Qundao,Nansha Qundao and Diaoyu Dao and its Affiliated Islands meet the criteria of archipelagos in the legal sense.In1958,China promulgated the Declaration on China's Territorial Sea to employ straight baselines to outlying archipelagos,and established its archipelagic regime for outlying archipelagos.Subsequently,the 1996 Declaration and the 2012 Statement provide for geographical coordinates of straight baselines employed to Xisha Qundao and Diaoyu Dao and its Affiliated Islands:(1)the length of those baselines defined by these legislations is moderate and reasonable;(2)Water to land ratio in Article 47 of the Convention cannot be invoked to deny the validity of continental State's archipelagic baselines.