(a) General Considerations
While the low-water line is a general rule, its application may be impractical in some situations due to a highly complicated coastal configuration. In such case, the straight baseline system may come into play. Straight baselines can be defined as:
a system of straight lines joining specified or discrete points on the low-water line, usually known as straight baseline turning points, which may be used only in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.
The essential difference between the straight baseline system and the normal baseline system is that under the straight baseline system, baselines are drawn across water, not along the coast.
Article 7(1) of the LOSC, which followed Article 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone (hereinafter the TSC), provides as follows: In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands
along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured.
The language of this provision suggests that the use of straight baselines is permissive, and the coastal State can freely determine whether or not to apply the method of straight baselines where a coast meets the conditions set out in Article 7. The coastal State may also combine different methods when determining baselines by virtue of Article 14.
While Article 7(1) does not specify whether the appropriate points should lie on the charted low-water line, it is generally considered that the basepoints should normally lie on the low-water line rather than further inland. This view is reinforced by Article 7(2), which explicitly refers to the low-water line. Like normal baselines, the landward sides of straight baselines form part of the internal waters of the coastal State. In this case, however, a right of innocent passage will still exist in those waters by virtue of Article 8(2).
(b) The Anglo-Norwegian Fisheries Case (1951)
When considering rules governing straight baselines, the 1951 Anglo-Norwegian Fisheries case merits particular attention because it has had a decisive effect on the development of the straight baseline system. The coastal zone concerned in the dispute (which lies north of latitude 66± 28.8’N) is of considerable length and includes the coast of mainland Norway as well as all of the islands, islets, rocks and reefs, known by the name of the skjoergaard (literally, rock rampart). The number of islands, large and small, which make up the skjoergaard is estimated by the Norwegian government to be 120,000.
On 12 July 1935, a Norwegian Royal Decree was enacted delimiting the Norwegian fisheries zone north of latitude 66± 28.8’N. The Decree provided that lines of delimitation towards the high sea of the Norwegian fisheries zone run parallel with straight baselines drawn between fixed points on the mainland, on islands or rocks. This gave rise to a dispute between the United Kingdom and Norway with regard to, inter alia, the validity of the Norwegian straight baselines laid down by the Royal Decree. For a while Norwegian fishery patrol vessels dealt leniently with foreign vessels fishing a certain distance within the fishing limits. In 1948, however, the Norwegian government abandoned its lenient enforcement of the 1935 Decree. As a consequence, a considerable number of British trawlers were arrested. Thus, on 28 September 1949, the United Kingdom instituted proceedings against Norway before the ICJ.
In its judgment of 1951, the Court made an important pronouncement on the baseline issue:
Where a coast is deeply indented and cut into . . . the baseline becomes independent of the low-water mark, and can only be determined by means of a geometrical construction.
The Court further elaborated its view as follows:
The principle that the belt of territorial waters must follow the general direction of the coast makes it possible to fix certain criteria valid for any delimitation of the territorial sea; these criteria will be elucidated later. The Court will confine itself at this stage to noting that, in order to apply this principle, several States have deemed it necessary to follow the straight base-lines method and that they have not encountered objections of principle by other States. This method consists of selecting appropriate points on the low-water mark and drawing straight lines between them.
This passage seems to imply that ‘the general direction of the coast’ provides the principle governing the baseline; and that the straight baseline method is a result of the application of this principle. This is arguably an innovation of the judgment. In the Court’s view, the method of straight lines had been consolidated by a constant and sufficiently long practice, and other governments did not consider it to be contrary to international law.
The next issue involves criteria for drawing straight baselines. In this regard, the Court specified three criteria:
(i) The drawing of baselines must not depart to any appreciable extent from the general direction of the coast as it is the land which confers upon the coastal State a right to the waters off its coasts.
(ii) Certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters.
(iii) Certain economic interests peculiar to a region, the reality and importance of which are clearly evidenced by long usage, should be taken into consideration.
In conclusion, the Court found, by ten votes to two, that the method of straight baselines employed by the Royal Norwegian Decree was not contrary to international law; and, by eight votes to four, that the baselines fixed by the said Decree in application of this method were not contrary to international law.
(c) Analysis of Article 7 of the LOSC
Later, the formula of the Fisheries judgment was incorporated in Article 4 of the TSC as a general rule governing straight baselines. Article 7 of the LOSC followed Article 4 of the TSC almost verbatim. It is clear that the phrase in Article 7(1) of the LOSC, ‘where the coastline is deeply indented and cut into’, literally follows that in the Fisheries judgment.
Article 7(3) and (5) also follow the Court’s criteria for drawing straight baselines, by providing that:
The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters . . .
Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.
Here one may detect an outstanding instance of judicial impact on the development of international law. On the other hand, these treaty provisions include some elements of obscurity. Two issues must be highlighted.
The first question concerns the interrelationship between the criteria provided in Article 7(1) and (5). The first two criteria concern purely geographical tests, while the third element concerns an economic test. A question that may arise is whether the coastal State can apply the method of straight baselines solely on the basis of the economic element. The intention of the Fisheries judgment and Article 7 of the LOSC would seem to suggest that economic interests alone do not justify the use of straight baselines. In fact, under Article 7(5) of the LOSC, consideration of economic interests is qualified by the condition ‘where the method of straight baselines is applicable under paragraph 1’. The ICJ also stated, in the 2001 Qatar/ Bahrain case (Merits):
Such conditions [of drawing straight baselines] are primarily either that the coastline is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity.
A second and more debatable issue relates to the ambiguity of the criteria for drawing straight baselines. There is no objective test that may identify deeply indented coasts. It is also difficult to objectively identify the existence of a ‘fringe of islands’. While there must be more than one island in the fringe, the LOSC does not provide any further precision regarding the minimum number of islands. The concept of the coast’s ‘immediate vicinity’ may also depend on subjective appreciation. Furthermore, unlike the cases of bays and archipelagic baselines, the LOSC does not specify the maximum length of straight baselines, although arguably length is an important element in assessing the validity of a straight baseline.
As a consequence, some States drew excessively long straight baselines. For instance, Burma (Myanmar) established the 222.3-mile long line across the Gulf of Martaban. In so doing, Burma (Myanmar) enclosed about 14,300 square miles (equivalent to the size of Denmark) as internal waters. Vietnam drew the 161.3-mile long line between Bay Canh Islet and Hon Hai Islet (Phu Qui group of islands), and the 161.8-mile long line connecting Hon Hai Islet and Hon Doi Islet.32 Moreover, there is no objective test which may identify the general direction of the coast. Neither is there any objective test to identify the close linkage between the land domain and the sea area lying within the straight baselines. In addition, ‘economic interests peculiar to the region concerned’ are also a matter of subjective appreciation.
In short, the rules governing straight baselines are so abstract that the application of the rules to particular coasts is to a large extent subject to the discretion of coastal States. As a consequence, there are many instances where coastal States draw straight baselines too freely
At present there is a general trend for coastal States to enclose large marine spaces as internal waters by drawing straight baselines. At the same time, the establishment of straight baselines extends the seaward limits of marine spaces under national jurisdiction towards the high seas. The straight baseline system thus plays a dual role expanding marine spaces under national jurisdiction inside and outside the baselines.
While the coastal States may exercise some discretion in the application of the straight baseline method, this does not mean that the coastal States can make excessive baseline claims, independent of rules of international law. Where a baseline is clearly contrary to rules of international law on this subject, the line will be invalid at least in relation to States that have objected to it. It must be remembered that the ICJ, in the Anglo-Norwegian Fisheries case, stated:
The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law.
The ICJ’s view, in the Qatar/Bahrain case (Merits), also bears quoting:
[T]he method of straight baselines, which is an exception to the normal rules for the determination of baselines, may only be applied if a number of conditions are met. This method must be applied restrictively.
A related issue is whether State practice will lead to an agreed interpretation of the LOSC or a new rule of customary international law concerning straight baselines. The answer should be in the negative for two reasons. First, the pattern of non-conforming practice is highly diverse. It appears to be difficult to consider the practice as ‘extensive and virtually uniform’. Second, it must be remembered that various States as well as the EU have already protested against extravagant straight baselines. In particular, the United States consistently protests against straight baselines that, in the view of the United States, do not conform to the LOSC. These protests will make it difficult to formulate any opinio
juris on this matter. Article 7(2)(4) and (6) of the LOSC further specifies conditions for drawing straight baselines. First, under Article 7(4), straight baselines shall not be drawn to and from low-tide elevations, (i) unless lighthouses or similar installations which are permanently above sea level have been built on them, or (ii) except in instances where the drawing of baselines to and from such elevations has received general international recognition. The first requirement of lighthouses or similar installations serves to benefit navigators because low-tide elevations are, by nature, not visible at all times. The second requirement, which is absent from Article 4(3) of the TSC, reflects the case of Norway where a straight baseline was drawn to and from a low-tide elevation with no lighthouse or similar installation.
Second, the system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an EEZ in accordance with Article 7(6). This provision is based on Article 4(5) of the TSC, which was inspired by a Portuguese proposal, with the additional reference to the EEZ. Article 7(6) seeks to safeguard the access of a coastal State to any open sea area where it enjoys the freedom of navigation. Specifically, this provision deals with exceptional situations, where a smaller territory is embedded in a larger territory, such as Monaco in France, or where small islands belonging to one State lie close to the coast of another State, such as Greek islands lying close to the coast of Turkey. In fact, France established straight baselines in such a manner that they do not cut off the territorial sea of Monaco from the high seas. On the other hand, while Croatia took over the Yugoslavian straight baselines, the baselines seem to cut off Bosnia-Herzegovina from the high seas and the EEZ.
Third, Article 7(2) provides a rule concerning an exceptional geographical situation: Where, because of the presence of a delta and other natural conditions, the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention.
This provision was drafted as a result of a Bangladeshi proposal with the specific case of the Ganges/Brahmaputra River delta in mind. Yet the text of Article 7(2) is not wholly unambiguous. For example, the terms ‘delta’ and ‘highly unstable’ will need further clarification. A question also arises as to whether only coastlines which satisfy the conditions set out in paragraph 1 of Article 7 will qualify for use of paragraph 2 of the same provision. Considering that originally paragraphs 1 and 2 were set out in one paragraph, it appears to be reasonable to consider that the words in paragraph 2, ‘the appropriate points’, trace back to ‘appropriate points’ in paragraph 1 of Article 7. It can be said, therefore, that paragraph 2 is subordinate to paragraph 1 of Article 7.
Fourth, some consideration should be given to the obligation of due publicity. In common with the TSC, the LOSC contains no explicit duty to publicise the normal baseline. However, it must be remembered that the normal baseline, namely, the low-water line is to be marked on large-scale charts officially recognised by the coastal State pursuant to
Article 5 of the LOSC. Concerning other types of baselines, Article 16 of the LOSC provides:
- The baselines for measuring the breadth of the territorial sea determined in accordance with articles 7, 9 and 10, or the limits derived therefrom, and the lines of delimitation drawn in accordance with articles 12 and 15 shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, a list of geographical coordinates of points, specifying the geodetic datum, may be substituted.
- The coastal State shall give due publicity to such charts or lists of geographical coordinates and shall deposit a copy of each such chart or list with the Secretary-General of the UN.
A literal interpretation of Article 16(1) would seem to furnish the two distinct options of either publicising the baselines or the ‘limits derived there from’, presumably without reference to baselines. It appears that the second option is unsatisfactory because the true extent or location of the baselines is unknown to another State. As a consequence, third States cannot properly examine the validity of the baselines concerned. It must also be recalled that a baseline forms the line which distinguishes the territorial sea from internal waters. As the legal regime of internal waters differs from that of the territorial sea, it is important for mariners to know the precise location of jurisdictional zones. Thus, it will be desirable to publicise the geographical location of the baselines.
source: The International Law of the Sea, Yoshifumi Tanaka