Mella nd Schill Studies in International Law

Series editor Professor Dominic McGoldrick

The law of the sea
The Melland Schill name has a long-established reputation for high standards of
scholarship. Each volume in the series addresses major public international law
issues and current developments. Many of the Melland Schill volumes have become third edition
standard works of reference. Interdisciplinary and accessible, the contributions are
vital reading for students, scholars and practitioners of public international law,
international organisations, international relations, international politics,
international economics and international development.

R. R. Churchill and A. V. Lowe

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Juris Publishing

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UAL-62
J MANCHESTER
UNIVfRSJTY PRESS
Copyright© R.R. Churchill and A V . Lowe 1983, 1985, 1988, 1999

The right of R. R. Churchill and A. V . Lowe to be identified as the authors of

this work has been asserted by them in accordance with the Copyright,
Designs and Patents Act 1988.
Contents
First edition published 1983 by Manchester University Press
Reprinted with addenda 1985
Revised edition printed 1988

ntis editi<>n published 1999 by

Manchester University Press
Oxford Road, Manchester Ml3 9NR, UK
http://www.man.ac.uk/mup

British Library Cataloguing-in-Publication Doto

List of tables page x
A catalogue record for this book is available from the British Library
List of figures xi
ISBN 0 71 90 4381 6 hardback Series editor's foreword xiii
0 7190 4382 4 paperback Preface xiv
Abbreviations xv
First published in the USA and Canada by Juris Publis hing, Inc.
T able of cases and incidents xix
Executive Park, One Odell Plaza. Yonkers. NY 10701
Table of conventions xx iii
Library of Congress Cataloging-in-Publication Data applied for
I Introduction 1
ISBN ·1 57823 029 2 hardback Scope of the book I
I 57823 030 6 paperback
Early development of the subject 3
This edition first published 1999 Sources of the modem Jaw of the sea 5
Attempts at codification 13
06 05 04 03 02 01 00 99 10 9 8 7 6 5 4 3 2 I International organisations 22
The present legal regime 24
2 Baselines 31
Introduction 31
The normal baseline 33
Straight baselines 33
Bays 41
River mouths 46
Harbour works 47
Low-tide elevations 48
Islands 49
Reefs 51
Charts and publicity 53
Present-day customary international Jaw relating to baselines 53
Validity of baselines 56
Typeset in I0112 pt Times
3 Internal waters 60
by Graphicraft Lim ited, Hong Kong
Printed in Great Britain Definition 60
by Diddles Ltd, Guildford and King's Lynn Legal status 60

v
UAL-62
 •• 2
•
11'1
.s:.
i"' • Baselines
"
11'1
i'
0"
·.

Introduction
•c
0 In detennining the extent of a coastal State's territorial sea and other maritime
N
; ~ l
u zones, it is obviously necessary first of all to establish from what points on the
~( ., ·e coast the outer limits of such zones are to be measured. This is the function of
.! 0
l· ~·
'-"
' ·e c
0
baselines. The baseline is the line from which the outer limits of the territorial sea
'' g J:! and other coastal State zones (the contiguous wne, the exclusive fishing zone
L
N •>
'iii
and the exclusive economic zone (EEZ)) are measured.' The waters on the land-
't.:
·. ·io
::> ward side of the baseline are known as internal waters (see chapter three). Thus
(j
(, )( the baseline also forms the boundary between internal waters and the territorial
U.I
sea. While this boundary does not mark the outer limit of a State's territory, since
in international law the territorial sea fonns part of a State's territory, it does

-•
~
represent the demarcation between that maritime area {internal waters) where
other States enjoy no general rights, and those maritime areas (the territorial sea
and other zones) where other States do enjoy certain general rights. Baselines may
"'
'•
also be relevant in drawing maritime boundaries: where two neighbouring States
c
c
agree that the boundary between their maritime zones is to be a line equidistant
·;; from both States, it is from the baselines of each State that such equidistance is
c nonnaUy calculated.
T;; - - - - - 0
(..)
Traditionally both writers and international conventions (including the Law
N~ euoz 1non D!lUO:J
-e of the Sea Convention) have treated the rules relating to baselines as part of the
--! •------ ,_ _ body of law relating to the territorial sea. This was justifiable at the time when the
)
territorial sea was the only zone of coastal State jurisdiction. But since the base-
ees IB!JO.!JJ9 ,l
-·e
N .!
_ .!.._ _ _ _ _ _ _ _
: .line is now used to measure not only the outer limit of the territorial sea, but also
·the outer limits of the contiguous zone, the exclusive fishing zone and the BEZ,
,!lnd in some circumstances the continental shelf, it no longer seems appropriate
1

One relatively recent, and so far as is known unique, exception to using the baseline
a"s tbe point from which the outer limit of maritime zones is measured, is the 150-mile
falkland Islands Interim [Fisheries] Conservation and Management Zone established in
1986, which is measured from a single point in the middle of the Falkland Is lands. See
~roclamation No. 4 of 1986 of the Governor of the Falkland Islands, 9 LOSB 19 (1987).
· e territorial sea, however, is measured from conventional baselines.

31 UAL-62
 The law of the sea .r~
Baselines
to consider baselines simply as part of the law relating to the territorial sea. Thus areas of sea within internal waters th d .
in this book we deal with baselines as a separate topic. use by other States. ' us re ucmg the areas of sea available for
The question of baselines was considered at the 1930 Hague Codification
Conference. As we saw in the previous chapter, this conference did not succeed
in adopting any convention on the law of the sea. 2 Nevertheless the work done The normal baseline
by the conference in respect of baselines formed a useful basis for the Inter-
national Law Commission (ILC) when it came to consider the topic as part of its Article 3 of the Territorial Sea Conven . .
study of the law of the sea in the early 1950s. The Commission's deliberations Convention provide in identical w llon :i"d article 5 of the Law of the Sea
resulted in a number of articles dealing with baselines being included in the 1958 the breadth of the territorials . :ds that the normal baseline for measuring
on large-scale charts ofllc'allea is . e ~ow-water line along the coast as marked
Geneva Convention on the Territorial Sea and the Contiguous Zone. These
provisions - articles 3 to 11 and 13 - were not only binding on parties to the choosing the low-water li~e ~~a;co~~1se~ by _t he ~oas~al S~te'. The effect of
Convention, but in most respects were also regarded, for reasons which will be limit of the territorial sea and th er an tie h1gh-t1de !me, is to push the outer
there is au extensive tidal ra o er zones seawards, particularly on coasts where
explained later, as representing the rules of customa1y international law. Thus it Th nge.
is not surprising to find that the Law of the Sea Convention -· in articl~s 4 to 14 . . e rules in articles 3 and 5 were draft d . .
and 16 - simply repeats most of the 1958 Convention's provisions verbatim, straight and unindented particul • . e with coasts which are relatively
1
making only a few slight additions to cover geographical situations not con- ~th the Territorial Sea and La~ ~/~h:~1d. The low~water line is descnbed in
sidered by the !LC or the 1958 Geneva conference. At the same time it is !me'; but the variety of geograpl . I . ea Cunvent1ons as the 'nomlal base-
regrettable that greater effort was not made in the Law of the Sea Convention are laid down makes it doubtfu"1 cal ctrhrcun:stances. for which special provisions
" w le er Ill practice the lo - ·
to resolve the ambiguities and fill in the gaps .in the l 958 rules: suggestions for · normal baseline for most States Th. L w-water 1me 1s the ',
improvements have not been lacking from commentators.J . recognise this situation, for in a~icle el 4 ~~ of ~~e Se~ ~onvention appears to
!fall coastlines were relatively straight and unindented, the question of ascer- '. determine baselines in turn by any f th phrov1 es th~t the coastal State may
..,_ taining the baseline would be a simple one. All that would be necessary would ent conditions'.
0
e met ods provided for .. . to suit differ- i ;
.
• !

..
}
.'
be lo select the high- or low-tide mark as the baseline. In practice, however, the ., The special geographical conditions for wl . h . ' '
position is not nearly so straightforward. Many coasts are not straight, but are in the Geneva and Law of the S C . ltc particular rules are laid down •· l
' ~
·· . ea onventJons are· (i) tra · h b . ; j
indented or penetrated by bays, and have islands, sandbanks and harbour installa- .-_deeply mdented or fnnged with islands· (ii) b .. ... s . ig t aselme~ for coasts il
tions off them. It is necessary, therefore, to have 11.1les on baselines which deal .works; (v) low-tide elevations· (vi) isl~nds· :yd ((ll~~)nve~ n;ouths; (1v) harbour ' ~

with a wide variety of geographical circumstances. At the same time, it is desir-

able that the rules should be formulated in as precise and objective a way as
' ·now be considered in tum ln t'he d.
-· ·
. ' n vu ree1s. Each of these will
1scuss10n of e h ty
: fo~nd useful to refer to the figure on p. 36. ac
fb
pe o aseline, it may be
..; 1
\ j
I
• 4
possible, so that nvo cartographers, asked to draw the baselines along a particular
stretch of coast, would ideally both arrive at the same result. It is also desirable
that the waters enclosed by baselines should be of such a nature that the regime Straight baselines
of internal waters is as or more appropriate to them than the regime of the ter-
. !'
ritorial sea or EEZ. These desiderata should be borne in mind in the discussion Customary rules ' I

of the rules that follows. If the rules are not sufficiently precise. it may be pos~ Jhe law concerning straight b r .~
sible for a Stale to draw its baselines in a generous manner, thus pushing the outer .aSejine claims. Much of the c ase t~e~ developed in the context of Norwegian ' \
~ .)

: . oast o orway is penetrated by fjords and fringed

limit of its territorial sea and oiher zones farther seawards and bringing greater

.,
There appears to be no uniform'ty . S . .
represented by the mean low-wa:er m . tare _prncllce as to whether the low-water line ; !'-
2
The report of the conference's Cl)OllJ1ittee on Territorial Waters contained a set of ,. er.~low-~ater line. See Wl1i1eman. v~r~ tide, tl_ie lowc~t astronomical tide or some
draft a1ticles on the tcnitorial sea. Six of these articles were concerned with the proble111s. · !'· tn F_urther reading· at the e;1d of !hi~ ~h~p4i, ar.1d Oh Com1el/, Vol. I, pp. 171- 85,
of baselines and <lcnlt with the. low-water line, low-tide elevations, bays, harbour works. .e special ge.ogra h· . 1 .. ·. er, m t c general section
.~o~s mhake ~r~~~si~~ni~ ~~~{.~;e:: 1 :~~ ~~~!~:; Fof thde .sea (and Te;ritorial Sea)
1
islands and river mouths. These draft articles are reproduced in S. Rosenne (ed.). League
of Nations Conference for 1/ie Codifica1io11 of' /111ematio11a/ Lwv [1930} (Dobbs fcrr¥1
no
· · uc . shelves may be man mile . . ! uu In parts of the Arctic and
N. Y., Oceana), 1975, pp. 833- 6. , the outer edge of the ice sh~f or t~ 1~w1dt~ It is unce11ain whether the baseline
l Sec, for example, the works by Hodgson anLi Alexander, and Hodgson and Sinit,b ussed at UNCLOS m for ti f e ge.o . the land. This issue was deliberately
referred to in 'Further reading' at the end of this chapter. ca For fiinber discussion /:;:-. o.. ~-op,enmg, the question of the legal status of
o; 0 IS issue, see 0 Connell, op. cit., Vol. I, pp. 197-8.

32
33 UAL-62
 Baselines
The /aw of the sea
Although .it upheld the validity of strai ht . . .
aa~d ote~ ~~td discr~tion
by countless islands, islets, rocks and reefs, known as the skjaergaard (a Nor- Court made it clear that the coastal St t : baselines m mtemational law the
wegian word meaning literally rock rampart). In theory it would be possible to as to how it draws straight baselines have an unfettered
draw the baseline along the Norwegian coast by following the \ow-water mark governing the drawing of such baseli~es F:rstat O\~ a number of conditions
around all the fjords, islands and rocks and by drawing lines across bays: but in they do ·not depart to any appreciable . t , such lines must be drawn so that
practice th is would be very cumbersome, and it would be difficult to ascertain coast' .9 Secondly they must be cir ex ent from the general direction of the
ffi · ' awn so that the 'se I · .
the outer limit of the Norwegian territorial sea. lnstead, from the mid-nineteenth '.11"e su c1ently closely linked to the land d . a areas ymg within these lines
century onwards, Norway used as the baseline a series of straight lines connect- mternal waters' . 10 Thirdly - a d h h omatn to be subject to the regime of
the . n ere t e Court seem t h
ing the outennost points on the skjaergaard. In the J930s the United Kingdom . . way m which individual lines are draw s o ave been consid ering
began to object to this method of drawing the baseline, arguing that it was it is legitimate to take into accou t ' n. rather than the system as a whole -
contrary to international law. The United Kingdom's objections were motivated region, the reality and importanc n f ce~am economic interests peculiar to a
~: usage' n e o w tch are clearly evidenced by a long
by the fact that the effect of using such straight lines, rather than the low-water
mark, as the baseline was to extend farther seawards the outer limit of the Nor-
wegian territorial sea, thus reducing the area o f high seas open to fishing by
British vessels. The ensuing dispute, which centred on a Norwegian decree of Conventional rules
1935 delimiting straight baselines north of 66'28.8' north, was referred by the
of 'judicial legislation'. lfoweve; th:Ju~gment was widely regarded as a piece
At the time it was given the Co rt' .
United Kingdom to the International Court of Justice in 1949.
ln its judgment in the Anglo-Norwegian Fisheries case ( J95 l ), the Court held up by the ~C and eventually i~corp:ra~:de:n;1ated b~ th.e Court were taken
that the Norwegian straight baseline system was in conformity with international (art. 4), which closely followed the I he Ternton al Sea Convention
Jaw. T he Court was much influenced by the geographical circumstances of the Court suggested that straight baselin::~age o.f the Court's _judgment. While the
case. It observed that the skjaergaard was but an extension of the Norwegian • low-water mark principle of constructi ere simply .a special application of the
mainland, and that it was the outer limit of the skjaergaard, not the mainland, L~w of the Sea Conventions more realt~ the basehn~, the Territorial Sea and
that constituted the real dividing line between the land and the sea. The \ow- d1stmct method of construction. sttcally recognise straight baselines as a
water mark to be used for constructing the baseline was therefore not that of the
mainland, but the outer line of the skjaergaard. The Court then noted that 'three Under both Conventions a system of .
; localities where the coastr . d straight baselines 'may' be used ,.
;fi. . me is eeply indented d . m
methods have been contemplated to effect the application of the low-water mark t n nge of islands along the coast . . . . an cut into, or if there is a
rule' 6 - the trace para/We (i.e., drawing the outer limit of the territorial sea by •LOSC, art. 7(1)). It is c lear from t~: its tmmed1ate vicinity' (TSC, art. 4(1)"
following the coast in all its sinuosities), the courbe tangente (i.e., drawing arcs
of circles from points along the low-water line) and straight baselines. Where a
~oast fulfils the requisite conditions au~~~: the word _'may' that even where ~
. a1ght baselines or not. The USA ti has a choice as to whether it uses
coast was deeply indented or fringed by islands, then, according to the Court, , ' n the coast of Alas ka although '.t ~r ex~mple, does not use straight baselines
1 15
neither the trace paral/ele nor the courbe tangente method was appropriate. · . at.es do exercise 'their· option and entitled
'· ost St draw to. do so. In practice, · however,
Instead. 'the baseline becomes independent of the \ow-water
1
mark, and can only f ~uch Imes is likely to place thei b 1. straight baselines, because the use
be detennined by means of a geometric construction' . The straight baseline was nous maritime zones) farther r ase me (and hence the outer limits of their
such a geometrical construction, and had been used by several States without er d seawards than other th d
me, an makes the drawing of the ou . . me o s of drawing the
objection.8 In this connection the Court considered it of some importance that no er Z?nes) more straightforward. ter hm1t of the territorial sea (and
objection had been made to the Norwegian system by the United Kingdom or
est~bli.shed the situation where the us
other States between 1869 (when Norway had first begun applying a detailed ,~.H, avmg
the Temtonal Sea and Law of the S e of str~1ght baselmes is perrniss-
. .
system of straight baselines) and 1933 (when the United Kingdom had first i;nber of conditions governing the e~ Conventions go on to lay down a
vn. First: way m which straight baselines may be
objected to the system).

• (195il JCJ Rep. 116 at 128.

1 Ibid., at p. l 29. ).~; I) !CJ Rep. 116 at 133.
a The Court itself gave no examples of such States. States utilising straight baselines·
prior to the Court's judgment include Ecuador, Egypt, Ir.in, Saudi Arabia andYugoslavia~ ~id.,
I !42.and cf. th e
.; Court,s discussion
. of individual baselines of the Norwegian
. system
See Wliiteman. op. cil., Vol. lV, p. 148 and Waldock, op. cit., in the section entitle :
'Straight baselines' in 'Further reading' .

34
35 UAL-62
 Baselines

[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.
(TSC, art. 4(2); LOSC, art. 7(3) )
This provision follows the Anglo-Norwegian Fisheries case almost verbatim.
Second, straight baselines may not be drawn to or from low-tide elevations
unless lighthouses or similar installations which are permanently above sea level
have been built on them, or, the Law of the Sea Convention adds, 'in instances
where the drawing of baselines to and from such elevations bas received general
A Indentation is iargarr.:;...,,,.1<,'a:/
than a semi - circle international recognition' (TSC, art. 4(3); LOSC, art. 7(4)). The point of this
whose diameter is two provision is presumably to prevent baselines being drawn too far seawards of
closing lines, and is the coast, and thus to reinforce the first condition. Third, a State may not draw
therefore a bay. Thus bay
straight baselines in such a way as to cut off from the high seas (or, the Law
closing lines (which total
less than 24 miles l are of the Sea Convention adds, the EEZ) the territorial sea of another State (TSC,
baselinea. art. 4(5); LOSC, art. 7(6) ). This provision deals with highly exceptional situ-

0
ations, where a smaller territory is embedded in a larger territory (e.g., Monaco
8 Straight baseline on indented
coast fringed with islands. " in France) or where small islands belonging to one State lie close to the coast of
C Indentation is smaller than ar~ { 0 '. another State (e.g., Greek islands lying close to the coast of Turkey). Finally, a

'J
of semi . circle drawn on / ''State utilising a straight baseline system must clearly indicate the lines on charts
~(.

closing line. Therefore I I ~ to which 'due publicity' must be given (TSC, art. 4(6); LOSC, art. 16).
this ts not a bay. I I ~,: Both the Tenitorial Sea and Law of the Sea Conventions follow the Anglo-
o An island generating \ I ;· 'orwegian Fisheries case in providing that in determining particular baselines,
ita own territorial sea. \, I
~;ccount may be taken ... of economic interests peculiar to the region concerned,
E Baseline is a line drawn
across the mouth of the iife reality and the importance of which are clearly evidenced by a long usage'
river that flows directly {'r$C, art. 4(4); LOSC, art. 7(5)). The most obvious such economic interest, and
~-':ii·'
into the sea. ~....,..-._, · .. .interest at issue in the Anglo-Norwegian Fisheries case, is fishing. Neither
F Harbour works forming part '. Territorial Sea Convention nor the Law of the Sea Convention contains
of the baseline. ~provision limiting the length of individual baselines (apart from 'archipe-
G LOW t ide e levations. ~ F i9' baselines: see chapter six), although an unsuccessful attempt was made at
One i s lass than 12 miles from
¢LOS l to introduce a maximum length of fi fteen miles for any one baseline.
the coast and therefore forms
the baseline. The other is more \
,eAnglo-Norwegian Fisheries case the longest line, whose validity was upheld
than 12 miles and therefore does he Court, was forty-four miles. (ln this chapter, as elsewhere in this book,
not affect the construction of the ·ferences to 'miles' are to nautical miles unless otherwise stated.) It would
baseline. '
·;, t herefore, that there is in principle no restriction on the length of indi-
On the rest of the coast th• baseline is l baselines, although obviously in practice the necessity for compliance
the low. water mark . e general conditions set out above will be a restraining factor.
Law of the Sea Convention contains a provision, dealing with a rather
·onal geographical situation, wl1ich has no equivalent in the Territorial
outer limit of the G nyention. Article 7(2) provides that, •[w )here because of the presence of
12 mile territorial sea and other natural conditions the coastline is highly unstable, the appro-
D
ints [between which straight baselines may be drawn] may be selected
0
miles furthest seaward ex.tent of the low-water line'. This provision, inspired
_ladeshi proposal, is not very well drafted. It is not clear if this pro-
0 12
laying down a third type of coastline, in addition to deeply indented

The conscruccio11 of haselines 37 UAL-62

 Baselines
The /aw of the sea
. . els where straight baselines may be drawn, or have adopted enabling legislation to draw straight baselines but have not yet
coasts and coasts fringed wt th isl an ' h. h fall into the first two categories. drawn them. 15
whether it applies only to deltas~~ coasts w ;c the latter.'2 Nor is it wholly clear As we have seen, the rules governing the use of straight baselines laid down
The drafting history of the prov1s1on s~gges s t f the low-water line' is subject in customary and conventional Jaw are relatively imprecise, and thus allow States
whether the use of the 'furthest se~\~a:-t~;;e~e~ations as basepoints for straight a considerable latitude in the way they drnw straight baselines. A good many
to the general rules about the use o o . ption to such rules, although the States, however, do appear to have gone beyond the spirit and the vague wording
. d . article 7(4) or JS an exce . f ti of these rules. Studies by the Geographer of the US Department of State (in the
baselines, c~ntame . t~ . ' icle 7(4). Furthermore, the meanmg o ie
better view is that it is subject ~o ai;. b ure but appears to refer to causes of Limits in the Seas series) and by Prescott (op. cit. in 'Further reading') suggest
phrase 'and other natural cond1t10ns ~ ~c 7(2) goes on to provide that where that of the straight baseline systems so far drawn, about two-thirds depart from
coastal instability other than deltas.I ~rt~ st "eaward extent of the low-water the rules of international law in one way or another. First, some States (such as
straight baselines are drawn along t le b e t ~egress ion of the low-water line, Albania, Cuba, Italy, Senegal and Spain ) have drawn straight baselines along
line of deltas, then 'notwithstandi~g sffiu se.quen ;ii changed by the coastal State coasts which are not deeply indented. A particularly good example is Colombia,
. shall remain e ecttve un . f which has drawn a single straight baseline 131 miles in length along part of its
the straight b aseImes . , I eral it is unlikely that this part o
in accordance with [the] Convent10~ . n I~~~· on as most deltas advance rather Caribbean coast and enclosed a smooth coast with no fringing islands. 16 A second
article 7(2) will have much practlc app ica I I where heavy damming has form of departure is the drawing of straight baselines a long coasts which possess
retreating delta occurs on Y .f
than retreat: normaIIY a · · · . . . a be important in the future 1 some offshore islands but which do not fonn a fringe in the immediate vicinity
taken place upstream.· Howe~er,. th1s::~:;~~o:S ~ r~sult of global climate change of the coast. This has been done by, among others, Ecuador, Iceland, Iran, Italy,
predictions of a s1gmfica~t nse ~)s: f course require a State eventually to Malta and Thailand. Perhaps the most extreme example is Vietnam, which has
are fulfilled, although article 7( oes, o t b' e only one possible case of a used the isolated islet of Hon Hai, lying seventy-four m iles from the mainland
. . ractice there appears o
change its base1mes. 1n P . . ." . 1 7(2) (although some deltas are coast, as a basepoint for its straight baseline system, and connected it northwards
State drawing straig~t baselm~s ut~hsmg art1t~1: basis of other criteria). In 1990 to Hon Doi islet and southwestwards to Bay Canh islet, each of which is 161
enclosed within straight baselines ral:vn onl ' ts Mediterranean coast includ- miles away.' 7 A third fonn of breach is to draw straight baselines which depart
Egypt drew a system of straigM base mestia o:7 :he rate of about forty metres a to a considerable extent from the general direction of the coast. For example the
ing the Nile delta (part of which ids tlretreN~'Jen~elta may be based on article 7(2). ;' straight baselines of Myanmar and Ecuador are in some places at an angle of 60°
· h b 1· es drawn aroun 1e 1
year). T e ~se m , .
.
he round that the coastltne conceme
d ~-,.to the general direction of the coast 18 (by comparison in the Norwegian baseline
The USA objected to Egypt s action on t . g . ii ~.system, generally regarded as the standard model, the angle of deviation is never
was neither deeply indented nor fringed with islands. D10re than about 15°). Fourth, baselines are sometimes drawn so that the sea
areas inside the lines are insufficiently closely linked to the land to be subject to
State practice tpe regime of internal waters. Again Myanmar's system is a good illustration:
. f Justice in the Anglo-No1wegia11 Fisher- the 222-mile Jong line across the Gul f of Martaban is at one point seventy-five
Although both the lnt.emattona l ~~~~~w o f the Sea Conventions regard the use miles from the nearest land and encloses as internal waters an area the size of
ies case and the.Terntona.l Sea 't d t exceptional geographical circumstances, J?enmark, and in Myanmar's system as a whole the ratio of land (i.e., islands
of straight baselmes as bemg hm1 e o1· th t 1·s anywhere near as indented or . I~ing within the baselines) to water is less than I : 50 (in comparison, the ratio
States have a coast me a d · iq the Norweg ian system is I : 3.5). Fifth, some States appear to accept the use
and although fiew -s-65 States have in fact rawn ·'
fringed with islands as that of Norway, s?me :> 14 and a further fifteen States . ~f. low-tide elevations as basepoints, regard less of whether lighthouses or similar
straight baselines along all or part of their coasts, ' :- · - tallations have been built on them: see, for example, the enabling legislation

. . . . 'further reading' under 'Straight baselines' ' PP· 289- 91, ·~

12 Prescott and Bird, op. cit. m , i For a list of both categories, see J. A Roach and R. W. Smith. U11ited States Re-
. , d 'Strai·ght baselines · . \. 9ses to Excessive Maritime Claims (The Hague, Nijhoff), 2nd edn, 1996, pp. 77- 81.
295 - 6· 94)
i; Limits in the Seas No. J 16 (1 9 . . , se~
'Further readmg , un er
:i t
. 1 ,,
t the number is that it is not always poss1b ·f
•• The reason for the Jack of prec1s1onha lou as the baseline is intended to be a stra1g d.
ee Limits i11 the Seas No. I03 ( 1985).
,ee limits in the Seas No. 99 ( 1983).
to tell if the use by a State of a s~1g ti i~e l1'ne Most straight baselines are dep1cte ··~ ~ limits in the Seas No. 14 (I 970) (Bunna - now Myanmar) and No. 42 (1972)
. b or nver c osmg · ·· · · dlor ' . dor). Minor amendments were made to Myanmar's system in 1977: see (JN leg.
baseline smcto sensu or a. a)'. . . Atlas of ihe Straight Base/111es an ,<.
d reference to their leg1slat1ve source .gtv.en, m '> /19, p. 42.
~~mits in the Seas, both in 'Further readmg. .

39 UAL-62
38
 The law of the sea
Baselines
o f Saudi Arabia and Syria.'9 Sixth, in spite of the obligation not to draw straight
I
.
i
baselines in such a way as to cut off the territorial sea of another State from the
forth (which relate to what is m eant b d I .
islands) have had or are likel to bav y a e~p ~ mden~ed coastl ine and fringing
high seas or EEZ, Morocco's straight baselines do just that in respect of Spain's States. Y · e any sigruficant impact on the practice o f
-.. l North African enclaves of Ceula and Melilla. 20 Seventh, in spite of the obliga- The effect of drawing stra ight baseline .. .
tion to publicise baselines. Haiti, North Korea and Malaysia have drawn the > m ies, is often to enclose considerable bod. s, ~ven st~ctly m accordance with the
outer limit of their territorial sea in a way which presupposes that it is measured '" the whole of the M inches lying betw ies ~ ~ea as mtemal waters: for example,
from straight baselines, even though such lines have not been published. Finally, west coast of Scotland, i~ enclosed been t ~ nner an~ Outer Hebrides off the
some States have located basepoints for straight baselines in the sea. The lead- waters lt should ho b y strarght baselines and thus is internal
· , wever e noted that · h.
ing example here is Bangladesh, which has drawn a straight baseline system all the Minches, there is a right of innoce t m some s~c internal waters, including
of whose basepoints are in the sea. For most of its course the line lies close to p. 61. n passage grven by the Conventions: see
the ten-fathom isobath and in places is fifty miles from the nearest land. 21 Less
objectionable is the practice of some States in locating the terminus of their base-
line system in the sea but on the boundary with the neighbouring State. Other
anomalies in the drawing of stTaight baselines are the bizarre practice of locat- Bays
ing the terminus of a system in another State's territory (as Ecuador has done
in Colombia and Venezuela in Guyana); and not anchoring a straight baseline Pre-1958 customary rules
to the mainland coast, so that it is possible to sail into internal waters without International law has always recognised h b
crossing the baseline (as has been done by, amongst others, Bangladesh and land and that it is more appropriate that\~~ a~s ~~ve a clos~ connection with
Norway (i n Spits bergen) ). Surveying State practice, Prescott concludes that abuse waters than as territorial sea Custom y s .ou be considered as internal
of the rules relating to straight baselines has been such that 'it wou ld now be cognised that the baseline co~tld in pri:~ ~t~rn~ttonal law had, accordingly, re-
possible to draw a straight basel ine along any section of coast i11 the world and , enclosing them as mternal waters 8 t P e e raw~ across the mouth of bays,
c ite an existing straight baseline as a precedent'.22 On the other hand, it should : provide clear rules on two essentiai o~n c~stoma'.Y ~ntemati~nal la~ failed to
be noted that some of the straight baselines referred to above have provoked . of the coast would be recognised as; b ts. ~e chn tena .by which an indentation
objections from other States: for example, Myanmar and India have objected *~ ing line ac b ay, an t e maxunum length of the clos-
to Bangladesh's baselines; France, Singapore, Thailand and the USA lo those '·'.t internation;f:: c::b::e::g:d~ the ~rst point,. the deficiencies of customary I

.. where the Permanent Court of Arb~t N~1 th tla11t1c Coast Fisheries case ( 19 l 0), !
..
'J . of Vietnam; and the USA has protested against the straight baselines of a fur-
ther twenty-s ix States. 23 The question of the legality of baselines wh ich do not :" rion of international law which defi~radio~. ou;d that there was n~ general crite-
appear to conform to the rules is further considered at the end of this chapter. . . deciding whether an indentation wa: ab ay: ~c~ors to be taken mto account in
Ln 1987 the US State Department published a snidy proposing guideline.s for inland and the security and eco . a. ay me u ed the penetration of the bay
evaluating stTaight baseline claims for th eir confonnity with international law. 2' ., regards the maximum length o/c~:1c m;~rest~ of the coastal State therein. As
Admirable though this study is, it seems unlikely that the criteria which it sets .the Anglo-Norwegian Fisheries case s~~g' mes or bays, the. United. Kingdom in
1.
ixestablished re ·r . gt ed that customary international law had
~· · . n mt es as the maximum length ti 1 • . •
19
See Umi/S i11 the Sett~ Nos 20 ( l 970) and 53 (1973), respectively. ,~!IS re1ected by the International Court h or c osmg Imes. This contention
'. 20
See Atlas of tlte Stra ight Baseli11es, p. 170. l1Y of State practice on tbe question. on t e ground that there was no unifonn-
21
Ibid., p. 86.
i 21
Prescott, 'Straight and archipelagic baselines', op. di. in ' Further reading· under
'Straight baselines'. p. 38.
' 2
' Roach and Smith, op. cit. in footnote 15. pp. 18~19. For details see pp. 77-138,
Conventional rules
f,:'. ·.
i
l~ .
.. passim.
2
' Limits i11 1he Seas No. 106 (1987). For a different approach to curbing straight base~
line claims. see Reisman and Wes1erman, op. cir. in 'Further reading' under 'Straight
eT · ·
' ' ernton al Sea Convention in art. 'f 7
~t;,.detetmining both of th hi
h
.
ic e ' established clear and precise rules
.eat!!d almost verbatim . ese t erto uncertain points, and these rules are re-
,.
i baselines'. See also lhe US Government's view of the way in which art. 7 of LOSC
should be applied, set out in its commentary on the Convention attached to tbe Pres-
~hould be noted that t~n the ~awdofthe Sea Convention (art. IO). At the outset
ident's letter transmitting the Convention to tbe Senate for its advice and consent to ., uSed (see above), or ~~eh~t~c ob:ot apply to cases where straight baselines
ratification, r.eproduced in Roach and Smith, op. cit. in footno1e JS , pp. 544-7 (and see -~ one State (both of w . Y~ or bays whose coasts belong to more
also pp. 60- 8). -~entation is a bay in theh11:h ~re considered below). To establish whether an
'. ga sense the Conventions lay down a subjective
40
41
UAL-62
 The law of the sea Baselines

description and an objective geometric test. As regar~s ~e. former, a bay. is the rules to bays with islands fiinging, or lying just seaward of, the mouth may
described as ' a well-marked indentation whose penetration is m such ?roport1on also be problematic. 26
to the width of its mouth as to contain land-locked waters and constitute more Even where the application of article 7 of the Territorial Sea Convention has
than a mere curvature of the coast'. Such an indentation will nevertheless not be been free from difficulty, some States parties to the Convention have neverthe-
a bay in the legal sense unless it also fulfils the follo~ing ge~metric test (and see less failed to act in conformity with it. Thus, the Dominican Republic has drawn
also points A and C in the figure in this chapter). ~1 rst, a !me shou! d ~e drawn closing lines across four bays which do not meet the semi-circ le test whi le the
between the natural entrance points of the indentation. Next, a sem1-c1rcle hav- closing line in a Portuguese bay exceeds twenty-four miles. 27
ing the diameter of this line should be constructed and its area measured. (Where
the presence of islands means that an indentation has more than one mouth'. the
Historic bays
diameter of the semi-circle is a line as long as the sum total of the len~ths of the
lines across the different mouths.) Then the area of water between theh ne across We must now tum to consider the two types of bay to which the provisions of
the mouth of the indentation and the low-water mark around the 1~dentat1on article 7 of the Territorial Sea Convention and article 1O of the Law of the Sea
should be calculated: for thls purpose any islands within the indentation are to Convention do not apply - historic bays and bays whose coasts belong to more
be included in the area of water. lf the area of water is larger than the ~rea of the than one State. (The first of these will be dealt with in this section; the second in
semi-circle, the indentation is a bay. Conversely, if the area of ':ater 1s sm~ller, the next section.) Neither the Territorial Sea Convention nor the Law of the Sea
the indentation is not a bay. Once an indentation has been established as bemg a Convention contains any provisions dealing with historic bays, although UNCLOS
bay, a closing line can be drawn across it. If the lengt~ of the line between the I had before it a memorandum on the subject prepared by the UN Secretariat
natural entrance points of the bay (in the case of bays w ith more than .one mouth, .. (see the reference in 'Further reading' at the end of this chapter under 'Bays')
the total of the lengths of the lines across the different mouths) is .less than ~ · ·and a draft article proposed by Japan, 28 and UNCLOS UJ had a draft article pro-
twenty-four miles, this line is the closing line and, therefore, the bas~lme . .If the .1'. posed by Colombia.n UNCLOS I d.id, however, adopt a resolution requesting
line or lines arc more than twenty-four miles in length, then a straight lme of · the UN to arrange for the study of the juridical regime o f historic waters, includ-
30
twenty-four miles is drawn within the bay in such a way as . to enclose the ing historic bays. Such a study was published by the UN Secretariat in 1962
greatest amount of water possible: this line then forms the baseline. Around the • (see the reference in 'Further reading'), but it has not led to any international
unenclosed part of the bay tbe baseline will be the low-water mark (unless any · ·~ _· legislative action. The posit ion is therefore governed by customary international
of the features that j ustify a different baseline are present). law. In the Tunisia/Libya Continental Shelf case the International Court stated
These provisions, which the International Court of Justice in the Land, Island that 'general international law ... does not provide for a single "regime" for
and Maritime Frontier ca~e (1992) said 'might be found to express general cus- ':historic waters" or " historic bays", but only for a particular regime for each of
tomary Jaw' ,2 s are obviously a great improvement on previous custorna~ inter- the concrete, recognised cases of"historic waters" or " historic bays'": 31 thus, in
national law, but their practical application is not who ll y free from difficulty. ·· one case only exclusive 'historic' fishing rights might exist, whereas in another the
The main difficulty is that often it is not obvious which are the ' na~ral entrance ,coastal State m ight enjoy fu ll sovereignty. This approach was endorsed by the
points' of an indentation. An example of this problem can be seen m _Post Office ln,ternational Court in the land, Island and Maritime Frontier case. Accordingly,
v. Estuary Radio ( 1968), where the English Couit of Appeal bad to decide whether 'plaims to historic title must be approached with circumspection. However, the
the Thames estuary was legally a bay. Estuary Radio argued that th~ na~al ~ :general criteria for the establishment of a historic title were addressed in the 1962
entrance points of the estuary were Orfordness and the North Forel~nd (m wh1cb -~Secretariat study, according to which a State may validly claim title to a bay
case the estuary would not have been a bay because it would have failed the se!Tll- "'o,n historic grounds if it can show that it has for a considerable period of time
circle test). The Pos t Office, on the other hand, argued that the natural entrance
points were the Naze and Foreness (in which case the estua"?" was .a bay).
~ ~7:' ~or a discussion of these and other problems, see the works ci1ed in the general
~ction of·Funher reading· by Beazley (pp. 16- 26). Hodgson and Alexander (pp. 3- 21),
Although the Court of Appeal accepted the Post Office's co~ten~1on, neither set . c.ott {?P: 51:-60), O'Co1111ell (pp. 396- 406) and United Nations ( 1989a) (pp. 28-3 1).
of points seems very obviously to be the 'natural entrance points .of th.e estuary. ,<t ee Lu1111s m the Seas Nos 5 (1970) and 27 (1970), respectively. It is not clear
Similarly, difficulties may arise in determining the extent to which nvers run- th~r these claims are still in force.
ning into a bay, or other subsidiary features s:1c~ as lagoons. should. be .cak~~'
· .CLOS I, Official Records, Vol. Ill, p. 241.
FLOS m, Official Records, Vol. v, p. 202. Cf. also the discussion of historic bays
into account .in calculating the area of water w1thm the bay. The apphcation . :.n, pp. 100-11 and Vol. JV, p. 196.
;{,cit. in footnote 28, Vol. II. p. 145.
2~ [I 992] /CJ Rep. 35 l at 588. 82) ICJ Rep. I8 at 74 (emphasis in the original).

42 43 UAL-62
 Baselines
The law of the sea
bays are likely to be larger than bays ovemed b . . .
claimed the bay as internal waters and has effectively, openly and continuously Convention and article 10 of the La.: of the Sey article 7. of the Temtonal s:a
exercised its authority therein, and that during this time the claim has received the case of smaller bays it is sim 1 fi S a Convention, partly because m
the acquiescence of other States. The United States Supreme Court has applied ventional mies rather than risk a pl ~r ~r ~· tat~ to close a bay under the con-
these criteria in US v. Louisiana (1 969) and US v. Alaska (1975), and they were Perhaps the most controversia~ :i~: ~o : tone sta~s th~t may be disputed.
implicitly accepted by the Intemational Court in the Land, ls/and and Maritime Libya to the Gulf of Sidra (Sirte). In 1973 L'~ay ~n.htstonc grounds is t~at of
"< Frontier case. Where title to a historic bay has been acquired, a closing line bay and drew a closing line across it which ~/; c au:ned .the Gulf as a historic
~'. ' I

may be drawn across the mouth of the bay which will then form the baseline. evoked protests from several Stat . I d' 96 miles m length. This action
There appear to be no rules as to the maximum permissible length of such lines, United Kingdom, the USA and thee0s~~ u~ng Australia, France, Norway, the
and it would seem that if good title has been acquired, the closing line may be test but passed through the Gulf .th . e USA not only sent a note of pro-
naval strength by the USA t d w1 a .naval squadron. Further displays of
of any length. . 0 emonstrate its objections t 0 th L'b ·
The need for authority to have been effectively exercised over a claimed llS assertion that the G If · h. e t yan claim and
historic bay for a considerable period of time is a condition which is objected to (when two Libyan air:ra;e:::ssh~~hd seas ~ave taken place, ~otably in 1981
0
by many recently independent developing States, which argue that it is impos- seems little evidence to su ort Li , "'.'n Y the USA). and m 1986. There
sible for them to produce evidence of an unintenupted exercise of authority. the Gulf ' through historyfp d byha s da1m to have exercised sovereignty over
The c~nclusion must be, therefore, that the G If o ~ec IO~S om o~her .states.
an muc evidence of b· f fr
While in fact it would seem possible for such States to cite the practice of both
the colonial and pre-colonial period (Sri Lanka's claim to Palk Bay as historic Conceivably it might be claimed as a 'vital ba , ~bu~~~~ra is. not a h1ston c bay.
waters is based not only on acts of the British, Dutch and Portuguese colonial , any vahd1ty as against those States that acce th ~ . a claun would only hav~
administrations but also on authority exercised by the pre-colonial kings of ; be thought that such claims are confined to pr e doc.t nne of vital bays.31 Lest it
Ceylon), some developing States have argued for a theory of 'vital bays' under :i;be noted that the Italian claim to the Gulfof;cently ~n~ependent States, i~ n:ay
which vital security or economic interests would justify title to a bay independ- ;.to this Libyan claim and has elicited . . ara;to is m many respects smular
Kingdom and the USA.1s re1ect10ns om States such as the United
ently of any true historic title. Such a doctrine, whose origins can be traced back
to the early part of the twentieth century, has naturally been rejected by the
traditional maritime States, such as the United Kingdom and the USA, because
of the ease with which it would allow a State to claim large areas of sea as internal ,, Bays bordered by more than one State
waters, at the expense of the international community. t\s with historic bays, bays which are bo d d b
It with by either the Territorial S Cr ere . y more t han one State are not
In the case of historic bays strictly so called, the question whether a State · ea onvent1on or the Law of th Cs
has acquired good title to a claimed historic bay is likely to depend largely : tton. There are over forty such ba . t e ea on-
on whether other States have acquiesced in its claim. At the present time some yle Cb.ordered by Ireland and the unrt~~nKi~~:a:~d.t1!3x~mple;;~cl~de
Lough
twenty States claim historic bays. 32 Examples of such claims include those by Spam) ~nd Passamaquoddy Bay (Canada and th~ e ay o 1gu1er (France
Russia to Peter the Great Bay (although several States, including the United · ~omary mtemational law in relation to such a USA). The nonnal rule of
33
Kingdom and the USA, do not accept it as a historic bay); by 34
Canada to Hudson·. ike bays governed by article 7 of th . T . Y~ would ap~ear to be that
?
~ -~ Bay (although the USA does not accept it as a historic bay); by T hailand to the' : ·of the Law of the Sea C. . e .emt.onal Sea Convention and article
;~ ·.. ine drawn across th . onvent1on, or h1stonc bays, they cannot be closed by
inner part of the Gulf of Thailand;3s and by Vietnam to parts of the Gulfs of':
ter mark around th et~ mouthf Instead the baseline is constituted by the low-
Thailand and Tonkin (to which claims a number of States, including France,";: ·~ e s ores o the bay. The matter, however, is not free from
Thailand, China and the USA, have objected). 36 As these examples show, historic'·
·'
··;
,.or
'tedfuller
Statesdiscussion
v Lib ·a) aof L'b
! ya ,s ':aim,
1 · see F. Franc1.om,. 'The Gulf of Sidra Incident
For a list of claimed historic bays, see Roach and Smith, op. cit. in footnote 15
g,9,(1980- 1); s~mpo~~~;.'1~ i~~~ c ~':~~ {~~li~~1;.arbook of lnterna~ional Law
11 1 1 5
~TI~
31

See Whiteman, op. cit. , Vol. ti, pp. 250-7 and Roach and Smith, op.
q
~-g ~nder 'Bays', pp. 311- 26: and J M S ~ e ' .e .•terranean, op. cit. m 'Further
13
of~1bya's claim to the Gulf ~fSidra.' J~l~os 8H1stonc and vttal bays: an ana-
13
15, pp. 49-50.
34 Ibid., pp. 236- 7.
~tbyan position, see F. A. Ahnish Th 1
. - 5 ( 1983). For .a skilful defence
e Practice of States in che Med/ e nterSnattonal Law of Marllime Boundaries
15 Declaration of 22 September 1959. UN Leg. Ser. B/16, p. 34. ~ ,.1. ' erranean ea (Oxford, Clarendon Press), 1993,
36 See Limits i11 the Seas No. 99 ( 1983) and Roach and Smith, op. cit. in footnote 1.
pp. 39- 40, 52- 3. For other historic bays which the USA has protested, see ibid., PP· 3 band Smith, op. cit. in footnote 15, pp. 43- 4.
53, passim.
45 UAL-62
44
 Baselines
The law of the sea .. ~
. It may not always. be easy to distinguish between a river entering the sea
controversy. Exceptionally it may be possible for the riparian States to show that ~trectly and one entenng the sea via an estuary; and in any case the distinction
the position is different by reason of historic title. Such is the case with the Gulf is ?pen. to abuse. Nor is it always easy to determine exactly where the mouth of
of Fonseca, bordered by El Salvador, Honduras and N icaragua. In El Salvador a nver 1s located, especially on. a coast ~ith an extensive tidal range. An example
v. Nicaragua (1917) the now defunct Central American Court of Justice held of tb:se pro~lems can be seen m the a.c t.on of Argentina and Uruguay in 196 l in
!1 that the Gulf was a historic bay, thus having the character of internal waters, and drawing a hoe ~20 miles in length across the mouth of the river Plate between
that the three riparian States were co-owners of its waters except for the inner- Punta de! Este m Uruguay and Cabo San Antonio in Argentina.40 This action,
most three miles which was the exclusive property of each. In the land, Island w~1ch has met with prot~sts from a number of other States, including the United
and Maritime Frontier case, decided some seventy-five years later, the Interna- Ki~~dom and the USA, ts said by Argentina and Uruguay to be based on article
tional Court reached a similar conclusion as to the Gulf's status, observing that 13, al~hough few cartographers would be likely to choose the location of the
the juridical status of the waters subject to co-ownership was sui gen eds, although
abo~e.hne a~ the mouth of the river Plate or indee.d say that the river entered the
essentially that of internal waters, through which nevertheless third States had a ~ea d1~ectly : fu.rthermore, the river Plate estuary has in the past been claimed,
right of innocent passage. On the other hand, in a dissenting opinion Judge Oda mconsistently with the present claim, as a historic bay.42
vigorously denied that it was possible for a multi-State bay to be treated as a
historic bay. A more controversial treatment of a multi-State bay is the 1.988
Boundary Agteement between Mozambique and T anzania under whicb a closing Deltas
line is drawn across Ruvuma Bay, which does not appear to have been claimed Where ~ river enters the sea via a delta, it is unlikely that articles 13 and 9 will
as a historic bay, with the Bay then being divided between the two States as be apph~able. Instead the baseline is likely to be constituted by the low-water
internal waters. m~rk m m so~e cases by straight baselines (as the Law of the Sea Convention
with. its prov1s1on. on ~eltas on. highly unstable coastlines, referred to above,
provides). In add'.tton, m many mstances, the provisions on low-tide elevations
River mou ths
, and islands (considered below) will be applicable.
Article 13 of the Territorial Sea Convention and article 9 of the Law of the Sea
Convention provide in almost identical wording that:
Harbour wo.r ks
lf a river flows directly into the sea, the baseli.ne shall be a straight iine across the
mouth of the river between points on the low-water line of its banks. (LOSC, art. {'crticle 8 of the Territorial Sea Convention provided that the 'outermost per-
9. TSC has ' low-tide') .,. _a~e~t harbour works which form an integtal part of the harbour system' (such
No limit is placed on the length of such a river closing line. The provision, in
10
as Jell ies and breakwaters) were lo be regarded as forming part of the coast and
the absence of any qualification to the contrary, would appear to apply both to ~thus could. serve as the baseline. Article I I of the Law of the Sea Convention
rivers with a single riparian State as well as to rivers with two riparian States, " ~peats article 8 almost verbatim, but makes it clear that harbour works must be
although the latter application is apparently not accepted by some States, such attached (or at least very close) to the coast if they are to be used as baselines
39 b7 addmg that 'off-shore installations and artificial islands shall not be con~
as the USA.
•.cler.e<_l as permanent harbour works' . Although the Conventions do not make
?vision for such an eventuality, it would seem reasonable for coastal States to
Estuaries
,able to draw a straight line across the mouth of a harbour (although such a
It should be noted that articles 13 (TSC) and 9 (LOSC) apply only to rivers that . ) would normally have a n~glig.ible in~uence on the extent of the territorial
flow 'directly' into the sea. Most large r ivers do not flow directly into the sea but . · Support for such a po~tt1on ts provided by article 50 of the Law of the
enter it via estuaries. In such cases the question of the baseline should be gov . Convention which permits archipelagic States to draw closing lines across
emed by the provisions concerning bays (as we earlier saw was done with~~ ours (see P· 125 below). In the Dubai/Sharjah Border Arbitration (1981) the
Thames estuary in Post Office v. EstumJ' Radio). The original ILC draft did ¥1
fact contain a specific provision to this effect, but it was del eted at UNCLOS; e~a~t ~e Argentin~-Uruguay ~eclaration in Limits in the Seas No. 44 (1972).
· e ti ' 0 wever, neither Argentma nor Uruguay is a party to the Territorial Sea
because of the difficulty of defining an estuary. ,,. 0 on_, a1though bod1 have signed it.
.F, Whiteman, op. cit., Vol. IV, pp. 240, 342- 3.
39 See Whiteman, op. cit., Vol. IV, pp. 250- 7.
47 UAL-62
46
r--·r•r •
·1

The law of the sea Baselines

tribunal implied that the provisions of articles 8 and 11 were part of customary greater potential for extending the outer limit of the territorial sea seawards than
1: when the territorial sea was more conunonly three miles in breadth. Thus, in an
international law.• 3
Where roadsteads which are 'normally used for the loading, unloading and extreme case, where a low-tide elevation is twelve miles !Tom the mainland, the
anchoring of ships' lie not only beyond the baseline but also wholly or partly outer limit of the territorial sea will be twenty-four mi les from the mainland.
outside the territorial sea, they are included in the territorial sea, though they do Finally, it should be noted that in limited cases low-tide elevations can be
not otherwise affect its delimitation (TSC, art. 9; LOSC, art. 12). Strictly speak- used as basepoints in constructing a straight baseline system (see above).
ing these provisions (which appear to bave very limited practical application, a
rare example being their probably illegitimate invocation by the Federal Repub-
lic of Germany in 1983 to justify extending its territorial sea to sixteen miles in Islands
one area44) have nothing to do with baselines, and arc only included here for the
An island is defined in the Conventions as 'a naturally fonned area of land,
sake of completeness.
surrounded by water, which is above water at high tide' (TSC, art. 10(1); LOSC,
art. 12 1( 1) ). This definition removes the doubts which had existed in custom-
Low-tide elevations ary international law before 1958 as to whether in addition an island had to be
capa~I~ of effective oc~upation, by making it clear that this is not a necessary
A \ow-tide elevation is defined in the Conventions as 'a naturally formed area of cond1tion. The Conventions go on to provide that the territorial sea of an island
land which is surrounded by and above water at low tide but submerged at high is measured in accordance with the general rules on baselines (TSC, art. I 0(2);
LOSC, art. 12 1(2) ). This means that every island, no matter what its size has a
tide' (TSC, art. l 1(1); LOSC, art. 13(1)). Low-tide elevations are often referred
to in older books and treaties as ' drying rocks' or ' banks'. The effect of low-tide · territorial sea (which appears also to have been the position in customary inter-
.:, national law before 1958). With large islands, such as Great Hritain Greenland
elevations on the delimitation of the territorial sea was uncertain under custom-
ary international \aw before 1958, but clear rules were laid down in article 11 of :·. and Madagascar, there are obviously no problems. But it also mean~ that every
· islet or rock, no matter how small in size, has a territorial sea, i.e., the islet or
the Territorial Sea Convention, which are repeated verbatim in article 13 of the
· rock, or rather the low-water mark around it, will serve as part of the baseline.
Law of the Sea Convention. Under these provisions:
The question then arises whether this is the baseline for the territorial sea only,
Where a low-ride elevation is situated wholly or partly at a distance not exceeding or the baseline for all maritime zones.
tbe breadth of the territorial sea from the mainland or an island, the low-water line The !erri_tori~l S~a Con~ention mentioned only the territorial sea speciiically,
on that elevation may be used as the baseline for measuring the breadth ot the but by 1mphcat1on 1t also included the contiguous zone (see TSC, art. 24{2) ).
territorial sea. . State practice after 1958 suggested that it also included the twelve-mile exclus-
jve fishing zone. 45 (The continental shelf, the only other kind of maritime zone in
Where, however:
eic.istence before UNCLOS Ill, was not, under customary international law or the
I. a low-tide elevation is wholly situated at a distance exceeding the breadth of the · ntinental Shelf Convention, measured from the baseline.) The Law of the Sea
territorial sea from the mainland or an island, it has no territorial sea of its own. , Convention, on the ot~er hand, specifically provides that all islands in principle
can serve as the baselme for all maritime zones, viz. the territorial sea, contigu-
This is so even if such a low-tide elevation is situated at a distance less than
;:,~lfS zo~e, EEZ and continental shelf 46 (LOSC, art. 12 1(2) ), but makes a partial
the breadth of the territorial sea from another low-tide elevation, which in tum is
r_ex~eption for 'rocks which cannot sustain human habitation or economic life of
situated less than the breadth of the territorial sea from the mainland: i.e., it is not
~:thetr. own': such 'rocks' can serve as the baseline only for the territorial sea and
possible to 'leapfrog' from one low-tide elevation to another. The now-general
"'~ontiguous zone, but not for the EEZ or continental shelf(LOSC, art. 121 (3)).
recognition of a twelve-mile territorial sea gives low-tide elevations a much
'!
· ~~ough ~reland o~jected to the United Kingdom claiming a twelve-mile fishing zone
i . '3 9 1 !LR 543 at 66 1-2. .. · ~e mm1sculc islet of Rockall. See Symmons, op. cit. in 'Further reading' under
44 J. Van Dyke et al. (eds), /11ternatio11al Navigation: Rocks and Shoals Ahead .(Hon?· els. pp. 101- 2.
lulu, Hawaii, Law of the Sea lnstirute), 1988, pp. 103- 5. ln 1994 Gennany modified its . ·p<;ler the Law of the Sea Convention, unlike the Continental Shelf Convention
claim enclosing the roadstead concerned as territorial sea, with the waters between that l ~-~CLOS customary international Jaw, the outer limit of the continental shelf is in
and the normal twelve-mile outer limit of the territorial sea reverting to EEZ: see Roach '· t' ~t not all, cases measured from the baseline. See art. 76 and the discussion in
1... er 'pp. 148- 9.
and Smith, op. cit. in footnote 15, pp. 126- 8. "' .

48 49 UAL-62
 The law of the sea Baselines

This provision is poorly drafted. It does not define what a 'rock' is or suggest this a ' naturally-formed' or an artificial island? The only provision on artificial
any dividing line between 'rocks' and other islands. In addition, the question of islands in the 1958 Geneva Conventions was article 5(4) of the Continenta l
whether any particular 'rock' can sustain 'human habitation' or 'economic life' ~helf Convent~on'. which provided that installations connected with the explora-
is one that may admit of more than one answer because o f the vagueness of the t10n and explo1tat10n of the shelf's natural resources and located on the contin-
phrases used.47 The effect of article 121(3), which is further analysed in chapters ental shelf ' do not possess the status of islands. They have no territorial sea of
eight and nine (see pp. 150- 1and1 63 -4), is to create a situation - the one situ- their own, and their presence does not affect the delimitation of the territorial sea
ation - where the baseline is not the same for all maritime zones. It also has of the coastal State.' The implication would seem to be that no artificial island is
the rather anomalous result that a low-tide elevation can sometimes generate an entitled to a territiorial sea or, therefore, to serve as a basepoint. The Law o f the
exclusive economic zone, whereas an uninhabitable 'rock' cannot, even though Sea Convention reinforces this conclusion. First, article 11 provides, as we have
the latter will usually be a much more visible manifestation of land. On the other already seen, that 'offshore installations and artificial islands shall not be con-
hand, as long as the other conditions for the drawing of straight and archipelagic sidered as permanent harbour works' and therefore do not, qua harbour works,
baselines are satisfied, it would appear permissible to use an uninhabitable 'rock' form part of the baseline. Secondly, articles 60(8) and 80 provide that artificial
as a basepoiut in constructing a straight baseline or archipelagic baseline sys- islands and installations constructed in the EEZ or on the continental shelf have
tem, and in such a case the limitations of article 121(3) could be circumvented. no territorial sea of their own nor does their presence affect the delimitation of
In practice most 'rocks' lie immediately offshore, and thus if article 121(3) is t~e territo~al. s~, EEZ or continental shelf. Thirdly, even though the construc-
applied and they are discounted as basepoints for delimitation of the EEZ and tion of art1fic1al islands on the high seas is now recognised as a freedom of the
continental shelf, the extent of those zones will not be greatly affected. How- high ~eas (LOSC, art. 87), t~e prohibition on States from subjecting any part of
ever, the few isolated oceanic 'uninhabitable rocks' that do exist (and exactly the high seas to their sovereignty (LOSC, art. 89) prevents the establishment of
how many will depend on what criteria, if any, emerge as to the size and habit- any maritime zones around artificial islands on the high seas. This principle is
abi lity of 'rocks') - such as Rockall (off the United Kingdom), St Peter and St spelt out for that part of the high seas over lyi ng the International Sea Be d Area.
Paul Rocks (off Brazil) and L'Esperance Rock (off New Zealand) (all less than Under article 147(2) stationary installations used for the conduct of activities in
0.01 square miles in area) - are likely to give or have already given rise to dif- the Area have no territorial sea of their own, nor do they affect the delimitation
ficulties and disputes {see further chapter nine). of the territorial sea, EEZ or continental shelf.

Archipelagos
Reefs
Where islands are grouped so as to form an archipelago, the Law of the Sea
Convention provides that, in addition to any baselines drawn along individual
islands to delimit internal waters, straight lines may be drawn around the outer-
1The coral ree.fs of atolls presen.t a problem in that they may be continuously sub-
;~, merged or, if exposed at low tide, may be situated at a distance greater than the
most points of the archipelago itself (archipelagic baselines). Such archipelagic ~ breadth of the territorial sea from the islands of the atoll: in neither case, there-
baselines fom1 the baseline from which the territorial sea and other zones are fore, under the rules so far considered could such reefs serve as the baseline.
measured. This matter is discussed more fully in chapter six. "And y~t it is desirable for a variety of reasons, principally ecological, that the
·temtonal sea should be measured from the outer limit of the reef so that the
)!!goon inside the reef, which normally constitutes the main source of food for
Artificial islands
:~?e inhabitants of an atoll, has the status of internal waters. The problem of coral
T he definition in the Conventions of an island as being 'naturally-formed' excludes f efs wa_s ~ecognised and discussed by the ILC in the earlier stages of its work"8 but
artificia l islands, although the distinction between a 'naturally-fonned' and an ~o prov1s1on on the subject was contained in its final draft, nor does the matter
'artilicial' island may not always be easy to make in practice: for example, if pea~ to have been discussed at UNCLOS I. With the emergence into independ-
a State constructs some kind of barrier in the sea so that sand being moved by ,7~ Smee 1958 of many States formed of atolls in the Caribbean and Indian and
cun-ents piles up agai nst it, with the result that eventually an island is fom1cd, is ?ific Oc~ns, such as the Bahamas, the Maldives and Nauru, there has come
t~r pol.1t1cal impetus for a specific rule for coral reefs, and such a ru le is now
•
7
For a fu ller discussion of the meaning of art. 121(3), see E. D. Brown, 'Rockall and \tamed tn the Law of the Sea Convention. Article 6 provides that:
i
the limits of national jurisdiction of the UK", 2 Marine Policy 181 ( 1978) at 205- 8 and
Kwiatkowska and Soons, op. cit. in 'Further reading' under ' Islands', pp. 150- 73. .See Whiteman, op. cit., Vol. TV, pp. 297-300, 306.

50 51 UAL-62
 The law of the sea Baselines

In the case of islands situated on atolls or of islands having fri11ging reefs, the Charts and publicity
baseline for measuring the breadth of the territorial sea is the seaward low-water
line of the reef, as shown by the appropriate symbol on charts officially recognized
Under the Territorial Sea Convention the only baselines which the coastal State
by the coastal State.
was required to indicate on charts and publicise were straight baselines (TSC,
A number of points may be noted about this provision. First, it is not limited art. 4(6) ). Under the Law of the Sea Convention this obligation is extended
in its application to atolls or coral reefs (unlike an early draft provision in the to closing lines across river mouths and bays, and there is now an obligation to
ILC).•Y Secondly, it suggests that only reefs exposed at low tide, and not wholly deposit a copy of a chart showing such baselines (or alternatively a list of geo-
submerged reefs, may be used as baselines (again unlike the early !LC draft, graphical co-ordinates) with the UN Secretary General (LOSC, art. 16). Presum-
which had provided that 'the edge of the reef as marked on ... charts should ably the reason why the list of baselines to be indicated on charts and publicised
be accepted as the low-water line'): in practice, however, there is in most cases has not been extended to the low-water line and low-tide elevations is partly that
only a short distance between the low-water line and the seaward limit of the reef. such features are constantly changing as the result of tides and currents, and
Thirdly, it is not clear whether the term 'fringing reef' is used in its technical partly that the low-water line is the normal baseline which the coastal State must
geomorphological sense as meaning a reef extending outwards from the shore adopt if it does not choose man-made baselines such as river and bay closing
from which it is not separated by a channel, or whether it also includes a barrier lines and straight baselines and which must be marked on ' large-scale charts
reef which lies parallel to the shore from which it is separated by a wide and officially recognised by the coastal State' {TSC, art. 3; LOSC art. 5).
deep lagoon. A UN study of baselines stated in 1989 that 'it may be assumed Article 16 of the Law of the Sea Convention should introduce greater preci-
that the reference to fringing reefs in article 6 can be applied without distinction sion and certainty into the drawing of baselines. This is particularly important
to any reefs, including barrier reefs, which are separated from the low-water line for mariners and .fishermen wanting to know whether they are in any of a coastal
of the island and form a fringe along its shore'. 50 Even so, it is not clear whether State's maritime zones and, if so, which. The requirement of publicity may also
there is any limit that should be placed on the distance a fringing reef which is help to reduce some of the past abuse of straight baselines and river mouth and
to serve as a baseline may lie from the coast of an island. A further problem is bay closing lines which we have noted above.
that article 6 does not specify what is to happen where there is a gap in the It might seem that once a State has exercised the full range of options provided
fringing reef. The obvious solution is to draw a straight line across the gap, and by the Conventions in drawing baselines and has duly charted and publicised
this appears to be the growing practice of States: see, for example, the legisla- such baselines, that would be the end of the matter. However, if there is a sig-
tion of F'iji, 51 Nauru 52 and of New Zealand in respect of the Tokelau Islands. 53 This nificant rise in sea levels over the coming decades as a result of global climate
solution is more problematic, however, where the gap is extensive, and wo uld change, as is widely predicted, this is likely to cause a number of States to redraw
not seem possible at all where the reef fringes only part of the island. 54 Finally, ~ their baselines as the low-water line on some coasts moves appreciably land-
many atolls fom1 part of archipelagos. In such cases it will often be simpler and < wards, some low-tide elevations disappear, and some islands become low-tide
more advantageous for the archipelagic State to use archipelagic baselines :is the elevations or disappear completely. 56
baseline (see chapter six) than to constrnct baselines in accordance with the
provisions of article 6. Furthermore, as Beazley points out, with the now-general
acceptance of a twelve-mile territorial sea, article 6 achieves little that could not Present-d ay customary international law relating to baseli nes
be achieved by the provisions on low-tide elevations. 55
., However, Beazley, op. cit. in 'Further reading' under 'Reefs', p. 298, argues that the Given the number of States parties to the Territorial Sea Convention and/or the
tcm1s 'atoll' and 'fringing reef' used in art. 6, together with the a-avaux preparatoil·es, Law of the Sea Convention (and at the time of writing only twenty-seven coastal
point to art. 6 being limited in its application to coral reefs only. ~States. did not come into one or other or both of these categories), the question of
'° United Nations (I 989a), op. cit. in 'Further reading', in the general section, p. 9.
11
what is the customary international Jaw relating to baselines is one of diminish-
See Limits in the Seas No. JOI (1984), which, however, questions whether in some cases . ·g importance, although it may of course still be significant in the context of a
this has not been done somewhat arbitarily, particularly because of the use of submerged
reefs. ec1fic dispute.
52
Interpretation Act 197 1. UN Leg. Ser. B/ l6, p. 19.
33 Tokelau (Territorial Sea and Exclusive Economic Zone) Act 1977, s. 5. ND VII, p. 468.
;J or fuller. ~iscu~sion of this issue, see A. H. A. Soons, 'The effects of a rising sea
" For suggestions as to what should be done in this situation, see United Nations, ~l on mantune limits and baselin~s', 37 NILR 207-32 (1990), especially at 216-26,
op. cit. , pp. l l-l 3. D. Frc~~tone and J. Pethick, 'Sea level rise and maritime boundaries' in G. H. Blake
is Beazley, op. cit., pp. 303- 4, 3 \ I. , . • Maritime Boundaries (London, Routledge). J994, pp. 73- 90.

52 53
UAL-62
 The law of the sea Baselines

We will begin by considering whether the provisions of the Territorial Sea to prescribe the maximum limit of the closing line. One should not conclude
Convention and the corresponding provisions of the Law of the Sea Convention from this, however, that the practice of these States is necessarily contrary to the
have, to the ex.tent that they differ from the customary rules before 1958, passed Conventions. What is essential in determining this question is how these States
into customary international law. There is considerable evidence that this has in practice draw baselines across bay mouths, and on this we have very little
indeed happened. There are three main arguments to support this view. First, the information. Three cases, however, have come to our attention where closing
Territorial Sea Convention's provisions on baselines were incorporat.e d in foto lines appear to have been drawn across bays contrary to the rules of the Con-
and unchanged into the Law of the Sea Convention, with little discussion and no vention. These are certain of the bay closing lines utilised by Angola, Argentina
opposition at UNCLOS. Secondly, the Territorial Sea Convention's rules on base- and France. 65 In the case of river-mouth closing lines, only seven States have
lines have been incorporated by reference into other treaties, the parties to which legislation referring to such baselines and all but possibly one of these pieces of
include States which are not parties to the Territorial Sea Convention.H Thirdly, legislation (that of Cameroon~ is in accordance with the Conventions. Nineteen
there is the legislation of States enacted at a time when they were not bound, qua States have legislation dealing with harbour works: in each case the legislation
parties, by either the Territorial Sea Convention or the Law of the Sea Conven- conforms to the Conventions. Of the fifteen States whose legislation refers to
tion. This legislation generally reflects the Conventions' provisions (practice on low-tide elevations, all but one follow the Conventions, the exception being Saudi
straight baselines reflects the provisions less fuithfully than practice on other Arabia,7° which appears to allow low-tide elevations wherever situated to gener-
matters). We have discovered and examined some ninety pieces of such legisla- ate a territorial sea. Eighteen States have legislation dealing with islands: gener-
'
•.· tion. Of this legislation, only fourteen p ieces (for example, the legislation of ally it follows the Conventions (although in some cases an island is not defined),
l reland,58 Kuwait, 59 New Zealand,60 Samoa,M Sri Lanka62 and Sudan6 .1 ) refer to but Saudi Arabia71 a llows artificial islands to generate a territorial sea, while
most or all of the types of baseline dealt with by the Conventions: in these cases Iran72 provides that the waters between islands less than twenty- four m iles apart
g the legislation is generally in accordance with the Conventions' provisions. The have the status of internal waters and, in rather similar fashion, the United Arab
'tl' majority of States, however, simply refer in their legislation to the low-water Emirates73 includes as internal waters the waters between islands less than twelve
mark and/or straight baselines, or, in one or two cases, to baselines being de- miles apart or between islands and the mainland where they are less than twelve
limited in accordance with international law or the Conventions: a few States miles apart. Lastly, in assessing whether the provisions of the Conventions have
1 provide only for arch ipelagic baselines (on which see chapter six). Of individual . , passed into customary law, it must not be forgotten that (as pointed out earlier)
'
"~·
•\.·
rypes of baseline, we have already commented on the legislation relating to ·:· international courts and tribunals have suggested that the Conventions' provisions
s traight baselines earlier in this chapter. As regards bays, only four States (New on bays and harbour works represent customary international law.
+ Zealand/" Papua New Guinea,65 Samoa66 and Vanuatu67) have legislation reflect- Finally, it remains to consider whether the two significant additions to the
ing the Conventions' provisions. In the case of the other twenty-four States whose Territorial Sea Convention's provisions on baselines made by the Law of the Sea
legislation mentions bays, the legislation either fails to define a bay and/or fails Convention - dealing with straight baselines on highly unstable coasts (art. 7(2))
and reefs (art. 6) - have passed into customary law. (The third principal change
s• For example. the 1962 and 1969 amendments to the International Convention for rhe · made - the inability of uninhabitable rocks to generate a continental shelf and
Prevention of Pollution of the Sea by Oil, Annex. A and art. 11 respectively; the 1964
European Fisheries Convention. art. 6; and the 1971 Treaty on the Prohibition of the
68
Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed Limits in the Seas No. 28 (1970) (Angola); J. R. V. Prescott, The Man"time Bound-
:md Ocean Floor, art. 11. a~e.s of the World (London, Methuen), 1985, pp. 279, 313 (Argentina and France).
ss Maritime Jurisdiction Acts, 1959 and 1964. UN Leg. Ser. B/15, p. 90. Decree No. 71/DF/416 of26 August 1971, art. I. UN Leg. Ser. B/19, p. 131. It is not
s9 Decree of 17 December 1967 regarding the Delimitation of the Breadth of the Ter- ~ f.lear. whether the lines drawn across certain specified river mouths are river-mouth clos-
•.. ritorial Sea of Kuwait. UN Leg. Ser. B/15, p. 96. mg Imes, bay closing lines. straight baselines or an illegitimate use of roadsteads as the
~ !
6<i Territorial Sea and Exclusive Economic Zone Act, 1977. UN Leg. Ser. B/ 19, p. 65. · baseline.
•• Territorial Sea Act, 1971. UN Leg. Ser. B/18, p. 33. ·.i o Royal Decree concerning the Territorial Waters of the Kingdom of Saudi Arabia
;.
62
Maritime Zones Law No. 22 of 1976 and Presidential Proclamation of 15 Jonuary ~oy~l Decree No. 33 of 16 February 1958), arts. I and 5. UN Leg. Ser. Bf J 5, p. 114.
1977. UN leg. Ser. 8/19, pp. 120, 124. ,_,,fb1d.
61
Territorial Waters and Continental Shelf Act, 1970, UN Leg. Ser. B/ 16, p. 30. Act on the Marine Areas of !he Islrunic Republic of Iran in the Persian Gulf and the
"' Op. cit. in footnote 60, ss. 2 and 6. ,, Sea, 1993, art. 3. 24 LOSB 10 ( 1993). For protests by the USA, the EU and Qatar,
<•} Nalional Seas Act, 1977, Schedule I. ND VII. p. 486. . ~5 LOSB 101 (1994), 30 LOSB 60 (1996) and 32 LOSB 89 (1996), respectively. For
'"' Op. cit. in footnote 61, $5. 2 and 6. : s responses, see 26 LOSB 35 (1994), 31 LOSB 37 (1996) and 33 LOSB 87 (1997).
~' Maritime Zones Act No 23 of 1981, ss. I and 4. Smith, op. cit. in the general section ;ederal Law No. 19of1993 in respect of the Delimitation of the Maritime Z-0nes of
of ' Further reading', p. 471. , y ruted Arab Emirates, art. 2. 23 LOSB 94 (1994).

54 55
UAL-62
 Tire law of the sea Baselines

EEZ - will be considered in chapters eight and nine.) As regards article 7(2), The delimitation of sea areas has always an international aspect; it cannot be
there is, as we saw earlier, little or no practice on this matter, and it would there- dependent merely upon the will of the coastal State as expressed in its municipal
fore seem that this prov ision has not (yet) passed into customary law. In the case law. Although it is true that the act of delimitation is necessarily a unilateral act

.
78 because only the coastal State is competent to undertake it, the validity of the
of reefs, thirteen States - Belize,7~ Fiji,75 Kiribati,76 Maldives, Marshall Jslands,
77

79 80 delimitation with regard to other States depends upon international law.87

M icronesia Nauru New Zealand (in respect of the Cook Islands, Niue aod
"
the Tokelau, Jslands),'81 Solomon Islands,82 (South em) Yemen, Tonga, Tuvalu~ Thus, where a baseline is clearly contrary to international law, it will not be valid,
86
and the United Kingdom (in respect of Bennuda and the Cayman Is lands) - certainly in respect of States which have objected to it, a lthough a State which
enacted legislation before the entry into force of the Law of the Sea Convention has accepted the baseline (for example in a boundary treaty) might be estopped
which is wholly or broadly in accord with article 6. Given the relatively limited from later denying its validity. In border-line cases - for example, where there is
number of States to which article 6 is potentially applicable and the fact that doubt as to whether a State 's straight baseline system confonns to all the criteria
a nwnber of these States have drawn archipelagic baselines in such a way laid down in customary and conventional law - the attitude of other States in
as to obviate the need to invoke artic le 6, the above practice, coupled with the acquiescing in or objecting to the baseline is likely to prove crucial in detennin-
apparent absence of any protest, would suggest that article 6 has passed into ing its va lidity.88 Having said this, it must, however, be pointed out that few
customary law . doubtful baselines have encountered active opposition or led to serious disputes,
the Norwegian straight baseline system prior to 1950 and the G ulf of Sidra clos-
ing line being notable excep tions. Most States, it seems, do not bother to protest
Validity of baselines against baseline claims which are not in conformity with international law, the
major exception being the USA. 89 It may be that the widespread toleration of much
In those cases where a State either has a discretion as to which kind of base- of the practice described in this chapter which clearly appears to contravene the
line it chooses and/or has to construct an artificial line to serve as the baseline relevant rules of international law (particularly as regards straight baselines) will
- namely, straight baselines, bay and river-mouth closing lines and low-tide in time lead to a modification of those ru les themselves.
elevations - the coastal State's action in exercising its discretion and construct-
ing lines remains subject to international law. As the International Court of
Justice put it in the Anglo-Norwegian Fisheries case in an oft-quoted dictum: Further reading

General
" Maritime Areas Act, 1992, s. 4(4). 2 1 LOSB 3 ( 1992).
7; Maiine Spaces (Archipelagic Baselines and Ex.elusive Economic Zone) Order, 1981, L. M. Alexander, ' Baseline delimitations and maritime boundaries', 23 VJJL 503- 36
s. 4(c). Smith, p. 139. (1983).
76
Maritime Zones (Declaration) Act, 1983, s. 2. Smith, op. cit., p. 245. P. B. Beazley, Maritime Limits and Baselines (Lon<lon, Hydrographic Society, Special
17 Constitution of the Republic, art. I. UN Leg. Ser. 8/18, p. 28. Publication No. 2), 3rd edn, 1987.
78 Maritime Zones Declaration Act, 1984, s. 2(1). United Nations, The law of the Sea. R. D. Hodgson and L . M . Alexander, Towards an Objec1ive Analysis of Special Circum-
National Legislatlo11 on the Territorial Sea, the Right of Innocent Passage and the Con- stances. Bays. Rivers, Coastal and Oceanic Archipelagos and Atolls, Law of the Sea
tiguous Zone (New York, United Nations), 1995, p. 210. . . ~ Institute, University of Rhode Island, Occasional Paper No. 13, 1972.
79 Act of 1988 to amend title 18 of the Code of the Federated States of Micronesia, s. l.
'.- - and R. W. Smith, ' The informal single negotiating text (Committee II). A geo-
Ibid., p. 224. graphical perspective', 3 ODIL 225- 59 (1976).
so Loe. cit. in footnote 52.
81 Territorial Sea and Exclusive Economic Zone Act, 1977, s. 4(5) (Cook Islands). Smith, p. P. O'Connell, The lntemational Law of the Sea (Ox.ford, Clarendon Press), Vol. I,
op. cit., p. 325; Territorial Sea and Exclusive Economic Zone Act, 1978, s. 6 (Niue). · 1982, chapters 5 and 9- 1 I (O'Connell].
Smith, op. cit, p. 335; foe. cit. in footnote 53 (Tokelau Islands). f: R. V. Prescott, The Maritime Political Bormdaries ofthe W01·/d (London, Methuen), l985.
81 Delimitation of Marine Waters Act, 1978, s. 5(3). Smith, op. cir., p. l43.

SJ Act No. 45 of I977 concerning the Territorial Sea, Exclusive Economic Zone, Con- ~ [195 1]JC!Rep. 116at 132.
tinental Shelf and Other Marine Areas, art. 5. UN Leg. Ser. B/ I 9, p. 2 1. ; For an example of this. see the Anglo-French Conri11ental Shelf case ( 1977), paras
84 Territorial Sea and Exclusive Economic Zone Act, 1978, s. 5(1). Smith, op. cit., .~-44, where France was estopped from denying that Eddystone Rock (whose status as
p. 44 1. tsland was in doubt) could be used as a basepoint because of its previous acquiescence
85 Marine Zones (Declaration) Ordinance, 1983, s. 2. S111ith, op. cit., p. 459. . e use of the Rock as a basepoinl.
86 Bermuda (Territorial Sea) Order, 1988, S.11988, No. 1838; Cayman Islands (Temtor- or US protests, see Roach and Smith, op. cir. in footnote 15, chapters 3 and 4,
ial Sea) Order, 1989, S.l. 1989 No. 2397. im.

56 57
UAL-62
 The law of the sea Baselines

T . Scovazzi (ed.), la Linea di Base de/ Mare Ten·itoriale (Mi lan, Giuffre), 1986. ls/ands
R. W. Smith, £xc/11sive Economic Zone Clai!nr: An Analysis and Primary Documents D. W. B-Owett, The Legal Regime of Islands in l11tema1io11al Law (Dobbs Ferry, N.Y.,
(l)ordecht, Nijhoff), 1986 [Smith]. Oceana), 1979.
United Nations, The Law of the Sea. Baselines: An Examination of the Relevam Pro- H. Dipla, Le Regime J11ridiq11e des Iles da11s le Droit lntemational de la Mer (Paris,
iisions of the United Nations Co11vemio11 011 the Law of the Sea {New York, United Presses Universitaires de France), 1984.
Nations), 1989a. H. W. Jayewardene, The Regime of Islands in lmernational Law {Dordrecht, Nijhoff),
- -, T71e Law of the Sea. Baselines: National Legislation with lll11s1ratil'e M<1ps (New 1990.
York. United Nations), 1989b. B. Kwiatkowska and A. H. A. Soons. 'Entitlement to maritime areas of rocks which
M. Voelckel, 'Les Jignes de base dans la Convention de Geneve sur la mer territoriale', cannot sustain human habitation or economic life of their own', 21 NYJL 139- 81
19 AFDI 820-37 (1973). (J 990).
M. M. Whiteman, Digest of lmernarional Law, 15 vols, 1963 [W11tte111a11] N. Papadakis, The International legal Regime of Artificial Islands (Leiden, Sijthoff),
1977.
Straight baselines C. R. Symmons, The Maritime Zones of Islands in l11rematio11al Law (TI1e Hague, Nijhoff),
1979.
The Geographer, US Department of State, Limits in the Seas. The straight baselines United Nations, The Law of the Sea. Regime of Islands: Legislative History of Part 8
legislation of about forty-five States has so far been reproduced and analysed in this (Anicle JZI) of the United Nations Co11ve11tio11 on the Law of the Sea (New York,
series. No. I 06 (1987) is on •Developing standard guidelines for evaluating straight United Nations), 1987.
baselines'.
G. Marston, 'Low tide elevations and straight baselines', 46 BYIL 405- 23 (1972- 73).
J. R. V. Prescott, 'Straight and archipelagic baselines' in G. Blake (ed.), Maritime 801111d- Reefs
arie.~ and Ocean Resources (London, Croom He lm), 1987, pp. 38- 51. P. B. Beazley, ' Reefs and the 1982 Convention on the Law of the Sea', 6 UECL 281- 312 &
- - , 'Straight baselines: theory and practice' in E. D. Brown and R. R. Churchill (eds), (1991). ~
The UN Co11ve11tio11 on the law of the Sea: lmpact and lmplementalio11 (Hono lu lu, I. Kawaley, 'De limitation of is lands fringed with reefs: article 6 of the 1982 Law of the lj.
Hawaii. Law of the Sea Institute), 1987, pp. 288- 318. Sea Convention', 4 1 ICLQ 152- 60 (1992).
V. Prcscou and E. Bird. 'The inftuence of rising sea levels on baselines from which
national maritime claims are measured and an assessment of the poss ibility of apply- [
ing anicle 7(2) of the 1982 Convention on the Law of the Sea to offset any retreat of

I
the base line' in C. Gnmdy-Warr (ed.). lntemational Bo11nda1ies and Boundary Co11-
.flict Reso/11t/011 {Durham, University of Durham), 1990. pp. 279- 300.
W. M. Reisman and G. S. Westerman, Straight Baselines in lntenratio11a/ Maritime
801111darv Delimitation {London, Macmillan). 1992.
T. Scovazzi et al. (eds), Atlas of the Straight Baselines (Milan, Giuffre), 2nd cdn, 1989.
C.H. M. Waldock, 'The Anglo-Norwegian Fisheries Case', 28 BYIL 114- 71 {195 1).

Bays
L. J. Bouchcz. Tile Regime of Bays i11 /111erna1io11al Law (Leiden, Sijthoff), 1963.
A. Gioia, Tito/i Sto1ici e Linea di Base del Mare Territoria/e (Padua, Cedam), 1990.
I
I. Scobbic, 'The ICJ and the Gulf of Fonseca: when two implies three but entai ls one', 18
Marine Policy 249-62 ( 1994).
M. P. Strohl. The llllernational Law of Bays (The Hague, Nijhoff), 1963.
Symposium on Historic Bays of the Mediterranean, 11 Syrac11se Jou ma I of l111enia1io11a/
Law and Commerce 205-415 (1984).
UN Secrctnriat. ·Historic Bays', First UN Conference on the Law of the Sea. Official
Records, Vol. I, pp. 1- 38.
- -, 'Juridical regime. of historic waters including historic bays', !LC Yearbook, 1962,
Vol. 2. pp. 1- 26.
G. Westerman, The Juridical Bay (Oxford. OUP), 1987.

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