328 ARCHIPELAGO CONCEPT OF LIMITS OF TERRITORIAL SEAS John R. Brock INTRODUCTION writing on this subject are also covered. The necessary future action of the The oceans of the world are the free United States seems clear, and the sug­ world lifelines. Operational mobility for gested procedure is set forth in this free world naval and air forces is being thesis. drastically reduced by encroachments on the high seas by nation-states in a I-BACKGROUND unilateral try at extending territorial waters in various ways. The purpose of The Seas Are Our Strength. The this study is to review the efforts of freedom of navigation on the high seas certain nations to try to extend their means the essential liberty of maritime internal and territorial waters through transportation. The importance of a unique method of measurement mobility which the seas provide us was referred to as the archipelago concept eloquently stated by Hanson W. Bald­ or archipelago theory of territorial win as follows: waters. This not only restricts severely The days of isolation are the mobility of the fleets but also ended: the world needs us; we greatly narrows the commerce and free need the world. Our strategic con­ trade routes of the world and is thus cept must meet a threat as varied limiting upon all nations, large and and as complex as any in our small, rich and poor. history. If we would lead from The legal status of the unilateral strength, we must emphasize declarations by Indonesia and the Phil­ those elements of power in which ippines is reviewed in this paper. The we excel: our developed economy U.S. position established in connection and great wealth, our industrial with the archipelago concept through power and our technological ex­ decisions of the courts, by legislation, pertise, our sea and air power, and and by diplomatic action is reported. our nuclear delivery capability. The present status of the archipelago We must utilize the great waters concept so far as can be determined by and the skies and space above us the decisions of the International Court for the flexibility and mobility of Justice and by the international which the United States, more conventions is carefully surveyed. The than any other world power, can opinions of international lawyers exploit. 1 329 Certainly today seaborne mobile territorial sea at that time. In the period forces remain the key to any eonsidera­ from 1930 onwards the permitted extent tion of land hostilities-in offense or in of this narrow breadth of territorial sea defcnse. Since the United States is a has been in increasing controversy, seapower-a maritime nation-and Russia largely because of concern for access to is basically a land-locked nation, the fisheries and because of danger, from a U.S.S.R. would like to see the United security standpoint, of permitting the States dcnied as much as possible the blocking-off of large areas of water as frecdom of the use of the great oeean territorial sea.5 highway covering three fourths of the The United Nations Conference on earth's surface. Russia and its satellites as the Law of the Sea concluded at Geneva well as some of the new and irresponsible on 28 April 1958 adopted four interna­ nations would favor limiting the high seas tional conventions on the law of the sea. in any way conceivable. The archipelago The United States joined with Canada in concept just happens to be another en­ proposing a six-mile territorial sea and an croachment on the high seas that favors additional six-mile exclusive fishing zone. the Russian philosophy. This proposal was submitted to the 14th Plenary Meeting on 25 April 1958. 6 The Freedom of the Seas: History and U.S. proposal narrowly missed obtaining the Position. The historical record of free­ necessary two-thirds majority. While this dom of the seas is familiar. The oceans of proposal indicated that the United States the world were at one time claimed for was prepared to depart from its tradi­ exclusive use of a limited number of tional adherence to the three-mile limit in states. Venice, Denmark, and England order to aehieve conference agreement, claimed broad rights over portions of the Arthur H. Dean, chairman of the Ameri­ high seas during the medieval period. The can delegation, made it clear that the" promulgation of Papal Bulls of 1493 United States would continue to adhere purported to demarcate Portuguese to the three-mile limit unless the con­ righ ts t<1 the east and Spanish rights to the ference agreed on a change in the tradi­ west of an imagina7 line 100 leagues tional rule. Dean made the following west of the Azores. Hugo Grotius, a closing statement at the conference: Dutch jurist, subsequently rationalized We have made it clear from the the freedom of the seas on the ground beginning that in our view the that since the sea was not divisible it 3-mile rule is and will continue to could not be appropriated to individual be established international law, to use from the common ownership of 3 which we adhere. It is the only mankind. Concern for the more general breadth of the territorial sea on interest of the whole community of which there has ever been anything states ultimately succeeded in freeing the like common agreement. Unilateral larger expanse of the oceans for relatively 4 acts of states claiming greater terri­ unhampered use of all. torial seas are not only not sanc­ After a prolonged balancing of inter­ tioned by any principle of interna­ ests between coastal states and other tional law but are, indeed, in con­ states of the world community as to flict with the universally accepted authority on the seas, the principles of principle of freedom of the seas. the freedom of the seas and of a narrow breadth of territorial sea became ac­ Furthermore, we have made it cepted. By 1900 the three-mile or one­ clear that in our view there is no league limit had been positively adopted obligation on the part of states or acknowledged as law by 20 of the 21 adhering to the 3-mile rule to states which claimed or acknowledged a recognize claims on the part of 330 other states to a greater hreadth ment on the areas of high seas is the of territorial sea. And on that we unilateral attempt of such archipelagic stand.' nations as the Philippines and Indonesia The United States has always heen one to extend their territorial seas and in­ of the world's foremost advocates of the ternal waters in an exaggerated fashion doctrine of the freedom of the seas and and to the great detriment of other has vigorously opposed all efforts to members of the international com­ restrict the free navigation of its war munity. The Republic of the Philippines vessels and merchantmen. and the Republic of Indonesia hoth The concept of the freedom of the archipelago states, have claimed'sover­ seas likewise applies to the freedom of eignty over all waters around, between, the airspace ahove the seas.8 Because of and connecting the different islands of this and other reasons, the United States the respective archipelagoes. Sealanes Government, including the Navy De­ used throughout maritime history partment, has always advocated the would be taken out of areas of the high three-mile limit of territorial waters seas by these unilateral actions. The delimited in such a way that the outer claim of the Philippines was outlined in a note of the Philippine Foreign Office limits thereof closely follow the sinuosi­ 11 ties of the coastline. Sovereign claims of on 12 December 1955. The Indo­ nesian claim was contained in Act No.4 waters of the high seas restrict the range of war vessels and merchantmen. By of 18 February 1960.12 The major claim sometimes made in reducing sovereign claims to the narrow three-mile helt, the range of these ves­ connection with midocean archipelagoes is to delimit the territorial sea from a sels is therehy expanded. The time­ honored position of the Navy is that the line connecting the outermost islands and to include all waters within the line greater the freedom and range of its warships and aircraft, the hetter pro­ as part of. internal waters. The primary counterclaim asserts that an island in an tected are the security interests of the United States hecause greater use can he archipelago does not differ from any other island and that each should have made of warships and military aircraft.9 only its own belt of territorial sea; in Not only international prosperity hut also international well-heing has he en this view, there would be no question of straight baselines or of internal waters. enhanced in suhstantial measure In the archipelago concept an insular through preservation of the oceans as a type baseline adapts the idea of a common storehouse of riches. Equality perimeter around an island or group of of nations has had its fullest exemplifi­ cation in the fact that all states irre­ islands. (See Figures 1 and 2 for ex­ spective of relative wealth and ;ower amples of midocean archipelagoes and coastal archipelagoes.)13 Such a line position, have heen largely free to utilize the oceans. Solidarity and ex­ aro~nd an island would touch on capes, panding loyalties have heen furthered as pemnsulas, offshore isles, or other the oceans have heen made to function prominent points along the coasts. Such a line around a group of islands or not as ~arriers hetween peoples, such as mountams, hut as easily availahle links archipelago, would box in the ensem'ble of communication and transportation the straight baseline normally touchin~ fostering a cosmopolitan sense of iden­ at the more prominent geographic tification hetween peoples of otherwise features of the outermost islands.