Archipelagic waters and archipelagic sea lanes
Despite the passage regime being effectively the same for both archipelagic sea lanes and international straits, that is, a non-suspendable right of passage in the ‘normal mode' for both ships and aircraft, there are some key differences between the two regimes.26 These potentially make a difference to considerations of the use of force to assert or prevent passage. To start with, archipelagic sea lanes are a creation of the Third United Nations Conference on the Law of the Sea. They did not previously exist as such in customary international law, even if they now appear to be part of customary international law. This makes the 1982 Convention effectively the entire applicable law. Article 46 defines an archipelagic state:
- (a) ‘archipelagic State’ means a State constituted wholly by one or more archipelagos and may include other islands;
- (b) ‘archipelago’ 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.
- 24 ‘Iran captures British oil tanker in Strait of Hormuz’ ,L8C Afeivs (Online), 20 July 2019, www.abc.net.au/news/2019-07-20/iran-captures-two-british-operated-tankers-in-strait-of-honnuz/11328078; Matthias Hartwig does not accept that escort within the strait may be lawful in ‘Tanker Games - The Law Behind the Action’ EJIL Talk (online), 20 August 2019 www. ej iltalk. org tanker-games-the-law-behind-the-action/
- 25 Ibid.
- 26 See Natalie Klein, Maritime Security and the Law of the Sea (Oxford University Press, 2011) 34,37; see also Charlotte Ku, ‘The Archipelagic States Concept and Regional Stability in South East Asia’ (1991) 23 Case Western Reserve Journal of International Law 463, noting Indonesia’s closure of the Sunda and Lombok Straits in 1988, 471-474 in Donald Rothwell (ed), Law of the Sea (A Research Collection) (Elgar, 2013), 417
The next point is that archipelagic waters, those waters within the archipelagic baselines, include some waters which are also routes normally used for international navigation.
Archipelagic sea lanes passage
The routes that are normally used for international navigation should be archipelagic sea lanes. Article 53 of the Convention is quite extensive on the right of archipelagic sea lanes passage and its key points are as follows:
- 1 An archipelagic State may designate sea lanes and air routes there-above, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.
- 2 All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air roirtes.
- 3 Archipelagic sea lanes passage means the exercise in accordance with tliis Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.
- 4 Sttch sea lanes and air roirtes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels,
- 12 If an archipelagic State does not designate sea lanes or ah' routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation.
It is important to note that there is still no right of archipelagic sea lanes passage where a warship makes a port visit in the archipelagic state. Tliis is a key difference to the regime of transit passage as archipelagic sea lanes are not ‘highways’ in the way that international straits could be considered. Further, they can only be wholly within the waters of one state, unlike international straits which may exist where the tern tonal seas of two states overlap. As a matter of geogr aphy more than law, such archipelagic sea lanes as exist can also be much longer and wider than international straits. The foremost example is Indonesia. It has designated archipelagic sea lanes which cut through the very middle of that nation and extend hundreds of nautical miles, at up to 50 nautical miles breadth, through waters which are seen as equivalent to the land territory and a core part of the national identity under the concept of wawasan nusantara (‘water land integrity’). Key international straits such as Gibraltar, Hormuz and Malacca, on the other hand, do not bisect their bordering states, are much shorter and narrower and have transit times that would be measured in hours at most. They also do not have the same sense of being part of any national identity. Nonetheless, article 54 applies the rights and duties upon ships, aircraft and coastal states in international straits, mutatis mutandis, to archipelagic sea lanes.
Clearing obstructions to archipelagic sea-lanes passage by warships
Warships conduct archipelagic sea-lanes passage by virtue of the nature of their voyage being from one part of the high seas or the EEZ to another part of the high seas or the EEZ. This is as opposed to just being within an archipelagic sea lane but conducting innocent passage. This is a less permissive regime than for international straits and the reasoning in the Corfu Channel Case seems more apt to apply. Were a state to lay mines in an archipelagic sea lane, whether the archipelagic state or another state, it is harder to argue that an outside state could unilaterally clear those mines without the consent of the archipelagic state. As it may actually be that the innocent passage regime applies, it would be harder to argue that mine clearance was an incident to archipelagic sea lanes passage that did not threaten the peace, good order and security of the archipelagic state. As stated in the Corfu Channel Case, mine clearance is not consistent with innocent passage.
Escort of merchant vessels by warships through archipelagic sea lanes without the consent of the archipelagic state is a more complicated question than it is for international straits. Whilst the archipelagic state may not suspend archipelagic sea-lanes passage, as stated previously, archipelagic sea lanes are still different to international straits both in terms of not being ‘highways’ and also in the extent to which they intrude geographically into the archipelagic state. Were there a threat to the merchant vessels from the archipelagic state itself then the presence of warships as escorts could be contrary to the requirement to refrain ‘from any threat or use of force against the sovereignty, territorial integrity or political independence’ of the archipelagic state. Given the prospect of the use of force against the archipelagic state itself, this may be more of a question of national self-defence and even the threshold for the law of armed conflict.
Were the threat from another source, such as pirates, terrorists or a foreign state, then the archipelagic state should be responsible for the security of the merchant vessels. While armed robbery at sea and terrorism has been an issue in South East Asia at various times, the archipelagic states of Indonesia and the Philippines have not permitted foreign warships to escort merchant vessels through their waters. Whilst such a position is not conclusive in respect of the law, it is indicative of the difficulties an escort operation through these archipelagos might face.
Escort may be justifiable where there was no intention to use force within the archipelagic state itself. The escort of the merchant vessels by warships may be part of a much longer voyage in which the thr eat lay elsewhere. Passage in the normal mode is available to each of the vessels separately and so could be available to the vessels together as a convoy, much as it would be on the high seas. It may be prudent to inform the archipelagic state that this was the case so as to allay concern that the convoy was not a threat or use of force, but the right of archipelagic sea lanes passage would still be exercisable by the convoy provided that the passage was continuous and expeditious.
-  LOSC ait 47 2 LOSC ait 49
-  LOSC ait 53; see Kresno Buntoro, An Analysis of Legal Issues Relating to Navigational Rights and Freedoms Through and Over Indonesian Waters (Doctoral Thesis, University of Wollongong, 2010) 2, 28-29, 135; See also Stuart Kaye, ‘Indonesia’s Archipelagic Sea Lanes: International Law and Practice’ (2020) 1 Australian Naval Review 10; Sam Bateman, Freedoms of Navigation in the Asia-Pacific Region: Strategic, Political and Legal Factors (Routledge, 2020) 39-41,45—46; note also that LOSC art 49 makes clear that the archipelagic sea lanes regime does not affect the sovereign status of the waters within those lanes 2 LOSC art 53 3 LOSC art 52 4 Corfu Channel Case 35; cf. Hemtschel von Hemegg, n 15, states that clearance of mines laid in archipelagic sea lanes strait contrary to the law of naval warfare is lawful, just as it would be in international straits
-  LOSC ait 54 applying art 39 2 See Martin Purbick, ‘Pirates of the South China Seas’ (2018) 49(1) Asian Affairs 11 3 San Remo Manual rules 23-30 would support tins view for both belligerent and neutral vessels, noting that the guidance is for neutral vessels to inform a belligerent coastal state, as a precaution, before exercising transit or archipelagic sea lanes passage through that state