Baselines and the Territorial Sea

Those conditions are not the drafters' invention. They are the Fisheries case, written into a treaty thirty-one years later.

The case

Facts. Fisheries Case (United Kingdom v. Norway), ICJ Reports 1951, page 116, judgment of 18 December 1951. By a Decree of 12 July 1935 Norway delimited the zone north of the Arctic Circle in which fishing was reserved to its own nationals, drawing straight lines between points on the skjaergaard, the fringe of islands, islets and reefs running along a coast more than 1,500 kilometres long and deeply cut by fjords and bays. British trawlers had returned to those waters from 1906 after a three-hundred-year absence, and a considerable number were arrested and condemned in 1948 and 1949. The United Kingdom asked whether the delimitation was contrary to international law. The four-mile breadth of Norway's territorial sea was not in issue; only the baselines were.

Held. By ten votes to two on the method and eight to four on the lines themselves, neither was contrary to international law. Where a coast is of this character the baseline need not follow the low-water mark of the mainland: it is the outer line of the land formations viewed as a whole that constitutes the coastline, and straight lines drawn across bays, minor curvatures and the waters between islands are not an exception to a rule but the method that this rugged coast, viewed as a whole, calls for. The Court rejected the ten-mile rule for closing lines of bays, holding it had not acquired the authority of a general rule of international law and was in any event inapplicable as against Norway, which had always opposed its application to the Norwegian coast.

The criteria the Court laid down, and which article 7 now contains, are three. The baseline must not depart to any appreciable extent from the general direction of the coast. Certain waters are particularly closely linked to the land formations which divide or surround them. And regard may be had to certain economic interests peculiar to a region when their reality and importance are clearly evidenced by long usage.

The Court added that although 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, so it cannot be dependent merely on the will of the coastal State. And it held that Norway's system had been consolidated by a constant and sufficiently long practice, and that the general toleration of the international community showed it was not regarded as contrary to international law.

Why it matters. Three separate doctrines. The straight baseline method, now article 7. The persistent objector, worked in [Custom]. And the proposition that delimitation is unilateral in act and international in validity, which is the answer to any State that says its baselines are its own business.

The other baseline rules

Article 6, reefs. For islands on atolls or with fringing reefs, the baseline is the seaward low-water line of the reef.

Article 9, mouths of rivers. Where a river flows directly into the sea, the baseline is a straight line across the mouth between points on the low-water line of its banks.

Article 10, bays. The article relates only to bays the coasts of which belong to a single State. A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast, and an indentation is not a bay unless its area is at least as large as that of a semi-circle whose diameter is a line drawn across the mouth. Where the mouth does not exceed twenty-four nautical miles a closing line may be drawn and the waters enclosed are internal waters. Historic bays are excluded from the article's rules, which is how much larger bodies of water are claimed.

Article 11, ports. The outermost permanent harbour works forming an integral part of the harbour system are regarded as forming part of the coast. Off-shore installations and artificial islands shall not be considered as permanent harbour works, which is the point made in [Acquisition of State Territory].

Article 12, roadsteads; article 13, low-tide elevations; article 14, combination of methods; article 15, delimitation between States with opposite or adjacent coasts, which is [Delimitation of Maritime Boundaries]; article 16, charts and lists of geographical coordinates, which must be published and deposited with the Secretary-General.

Article 13 deserves a sentence of its own. A low-tide elevation is a naturally formed area of land surrounded by and above water at low tide but submerged at high tide. Where it lies wholly or partly within the breadth of the territorial sea from the mainland or an island, its low-water line may be used as a baseline. Where it lies beyond that, it has no territorial sea of its own. So a drying rock close in pushes every zone outward, and the same rock further out generates nothing.

What sovereignty over the territorial sea means

Article 2, set out in [State Territory]: sovereignty extends to the territorial sea, its bed and subsoil and the airspace above, and is exercised subject to this Convention and to other rules of international law. That last clause is what makes innocent passage possible, and it is the subject of the next chapter.

A worked example

State BB has a coast of ordinary shape except for one deep fjord and a chain of small islands running parallel to the shore two miles out. It draws straight baselines along the outer edge of the islands and across the fjord, and claims a twelve-mile territorial sea from them. A drying rock lies eighteen miles offshore, and State BB draws a further baseline segment to it.

The islands. Article 7(1) permits straight baselines where there is a fringe of islands along the coast in its immediate vicinity. Two miles out and running parallel is such a fringe, and the Fisheries case is the authority for treating the outer line of the land formations viewed as a whole as the coastline.

The fjord. A deeply indented coastline is the other article 7 condition, and a fjord is the paradigm. If instead the indentation is a bay in the article 10 sense, its own rules apply: the semi-circle test, and a closing line where the mouth does not exceed twenty-four miles.

The rock eighteen miles out. Article 13 answers it. A low-tide elevation situated beyond the breadth of the territorial sea from the mainland or an island has no territorial sea of its own, so it cannot be used as a base point. Eighteen miles from a coast with a twelve-mile territorial sea is beyond, unless the rock is within twelve miles of one of the islands, in which case it may be used.

Does the straight baseline system pass? Test it against the three Fisheries criteria now in article 7: it must not depart appreciably from the general direction of the coast; the waters enclosed must be sufficiently closely linked to the land domain; and economic interests peculiar to the region evidenced by long usage may be taken into account.

What happens to the water inside the baselines? It becomes internal waters under article 8. And because the straight baselines have enclosed as internal waters areas not previously considered as such, article 8(2) preserves a right of innocent passage in them.

State BB says its baselines are its own affair. The Fisheries case answers that: delimitation is necessarily a unilateral act because only the coastal State is competent to undertake it, but its validity with regard to other States depends upon international law.

Distinctions table

What it does NOT mean

Twelve miles is a maximum, not a fixed breadth. Article 3 says up to a limit not exceeding twelve.

Straight baselines are not an exception to be construed narrowly. The Fisheries case says drawing them on such a coast is not an exception to a rule but the method the coast calls for.

A low-tide elevation beyond the territorial sea generates nothing. Article 13(2) is explicit.

Artificial structures do not move the baseline. Article 11 excludes off-shore installations and artificial islands from being permanent harbour works.

A coastal State cannot fix its baselines as it pleases. They are drawn unilaterally and their validity against other States is a question of international law.

Limits and criticism

Article 7 is drafted loosely and is used widely. Phrases such as deeply indented, immediate vicinity and general direction of the coast admit a wide range of practice, and many States have drawn straight baselines on coasts that are not obviously within the article, enclosing large sea areas as internal waters. There is no compulsory review, so the only check is protest by other States, which is the Fisheries mechanism operating in reverse.

A small change offshore has a very large effect. Because every zone is measured from the baseline, a base point moved a few miles seaward can add thousands of square kilometres of exclusive economic zone, which is why rocks and drying elevations are litigated so fiercely.

The bay rules are geometric and the exception is not. The semi-circle test and the twenty-four-mile closing line are precise, and historic bays are excluded from them altogether, which leaves the largest claims resting on assertion and acquiescence.

Quick revision

Article 3: up to 12 nautical miles, a maximum not a fixed width. Article 4: the outer limit. India: section 3 of the Maritime Zones Act 1976, twelve miles, sovereignty which "extends and has always extended".

Article 5, normal baseline: the low-water line on large-scale charts officially recognised by the coastal State.

Article 7, straight baselines: where the coastline is deeply indented and cut into or there is a fringe of islands in its immediate vicinity; must not depart appreciably from the general direction of the coast; the waters within must be closely linked to the land; economic interests evidenced by long usage may be considered.

Fisheries (ICJ Reports 1951, page 116): the outer line of the land formations viewed as a whole is the coastline; straight lines are not an exception to a rule; the ten-mile bay rule is not general law and in any event did not bind Norway, which had always opposed it; delimitation is a unilateral act whose validity depends on international law.

Article 9 river mouths; 10 bays, single-State only, semi-circle test, 24-mile closing line, historic bays excluded; 11 ports, artificial islands are not harbour works; 13 low-tide elevations, usable as a base point only within the breadth of the territorial sea; 15 delimitation; 16 charts to be published and deposited.

Test yourself

1. What is the maximum breadth of the territorial sea and how is it measured?

Article 3 provides that every State has the right to establish the breadth of its territorial sea up to a limit not exceeding twelve nautical miles, measured from baselines determined in accordance with the Convention. It is a maximum and not a fixed figure, so a State may claim less; Norway claimed four miles at the time of the Fisheries case. Article 4 provides that the outer limit is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea.

2. When may straight baselines be used, and what limits them?

Article 7(1) permits the method of straight baselines joining appropriate points 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, and article 7 extends it to highly unstable coastlines caused by a delta and other natural conditions. The limits, taken from the Fisheries case, are that the baselines must not depart to any appreciable extent from the general direction of the coast, that the sea areas lying within them must be sufficiently closely linked to the land domain to be subject to the regime of internal waters, and that account may be taken of economic interests peculiar to the region the reality and importance of which are clearly evidenced by long usage.

3. State the facts and holding of the Fisheries case.

Norway's Decree of 12 July 1935 delimited by straight baselines the zone north of the Arctic Circle in which fishing was reserved to Norwegians, drawing lines between points on the skjaergaard along a coast over 1,500 kilometres long, deeply cut by fjords and dotted with islands. British trawlers had returned from 1906 and many were arrested in 1948 and 1949. The Court held that neither the method nor the lines were contrary to international law: on such a coast the outer line of the land formations viewed as a whole constitutes the coastline, and straight lines are not an exception to a rule but the method the coast calls for. It rejected the ten-mile rule for bay closing lines as not having acquired the authority of a general rule and as inapplicable to Norway, which had always opposed it, and it laid down the three criteria now in article 7.

4. Can a rock that dries at low tide be used to push a State's zones outward?

Only if it lies close enough in. Article 13(1) defines a low-tide elevation as a naturally formed area of land surrounded by and above water at low tide but submerged at high tide, and permits its low-water line to be used as a baseline where it is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island. Article 13(2) provides that where it lies wholly beyond that distance it has no territorial sea of its own. So the same feature is worth a great deal close in and nothing further out, which is why base points of this kind are litigated so hard.

5. What is a bay for the purposes of article 10, and what follows?

A bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast, and an indentation is not a bay unless its area is as large as or larger than that of a semi-circle whose diameter is a line drawn across the mouth. The article applies only to bays the coasts of which belong to a single State. Where the mouth does not exceed twenty-four nautical miles a closing line may be drawn between the low-water marks and the waters enclosed are internal waters. Historic bays are expressly excluded from these rules, which is how claims to much larger bodies of water are made.

6. "A State may draw its baselines as it chooses." Comment.

It is half right and the other half is the point. The Fisheries case accepts that delimitation is necessarily a unilateral act, because only the coastal State is competent to undertake it. But the Court added at once that the validity of the delimitation with regard to other States depends upon international law, so it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. The practical check is weak, since there is no compulsory review and article 7's terms are loose, so the discipline comes from protest by other States and from the acquiescence or toleration that the Court itself treated as decisive in Norway's favour.