Dissertations & Theses No. 12/2000 STRAIGHT BASELINES OF VIETNAM Johan Henrik Nossum Department of Public and International Law University of Oslo
Dissertations & Theses No. 12/2000
STRAIGHT BASELINES
OF VIETNAM
Johan Henrik Nossum
Department of Public andInternational LawUniversity of Oslo
Dissertations & Theses No. 12/2000
Straight Baselines of Vietnam
Johan Henrik Nossum
Master Thesis of Law (Særavhandling) Department of Public and International Law
Faculty of Law University of Oslo
Spring 2000
© 2000 Author, Centre for Development and the Environment, University of Oslo All rights reserved. ISSN 0806-475X The views expressed herein are those of the author and should not be attributed to the Centre for Development and the Environment.
I
Preface and Acknowledgements
Preface The conclusions of this thesis are based mainly on an understanding of UNCLOS Article 7, and the state practices analysed are illustrative examples of liberal legislation in the field of baselines. The thesis does not, however, have a comprehensive analysis of state practice, which really should have been performed to achieve conclusive findings on the baseline issue taking account of numerous other examples of liberal state practice from all over the world.
Shortly before completing this thesis, I was made aware of the PhD thesis of Nguyen Hong Thao. His Le Vietnam face aux problèmes de l'extension maritime dans la mer de Chine mériodinale is certainly relevant for the theme of this thesis. Because of a tight time schedule and difficulties in reading French, I have not been able to incorporate the work of Dr. Nguyen Hong Thao.
Needless to say, any errors of fact and, unless otherwise indicated, opinions are the sole responsibility of the author.
Acknowledgements In the course of writing this thesis I have incurred a debt to many people for their instruction and inspiration. First I would like to thank Cand. Polit. Mrs. Leni Stenseth for introducing me to the project Energy and Security in the South China Sea at the Centre for Development and the Environment (SUM), University of Oslo. I specially thank Professor Stein Tønnesson who employed me as a research assistant for legal affairs. This position gave me the opportunity not only to receive his professional advice on political, historical and juridical issues on Southeast Asia, but also the opportunity for personal development through discussions and constructive comments throughout the period. I would also like to thank my professional supervisor, Professor Geir Ulfstein for his honest and constructive comments during the different development phases of this thesis. Another person who deserves thanks is Professor Ian Townsend Gault at the University of British Columbia, for his interest in the thesis, very encouraging and constructive talks about relevant legal issues of the South China Sea conflict, and for his friendship. Kristen Nordhaug, Leni Stenseth, Marius Gjetnes, Gørill Husby, Ingvill Janssen, Tom Næss, Knut Snildal and Magnus Buflod have also contributed with useful comments on different parts during the course of writing this thesis. Thanks also to the librarians at the Law Faculty of the University of Oslo and the Nobel Institute. SUM has not only provided me with an office and suitable office equipment, but also a stimulating academic and social environment. Thanks also to the Norwegian Shipbrokers Association, the Sasakawa Foundation, the South China Sea Informal Working Group at the University of British Columbia for financial support. I would also like to thank the Nordic Institute for Asian Studies (NIAS) for travel funds to visit their library in Copenhagen. The ones who deserve the greatest thanks are my mother Sylvi and sister Beate, whom I have been and will be dependent on in difficult times. Lastly, to the memory of my father Tore, to whom I very much wanted to show the final result. Oslo, 5 March 2000
III
Table of Contents
Straight Baselines of Vietnam
I INTRODUCTION 1. INTRODUCTORY COMMENTS…………………………………………………………… ….. 1 1.1. THE SOUTH CHINA SEA REGION…………………………………………………… 3 2. THE MARITIME CONFLICT IN THE SOUTH CHINA SEA……………………………………… 5 2.1. CLAIMS………………………………………………………………………………. 6 2.1.1. Historical Claims………………………………………………………….. 6 2.1.2. Are the Sovereignty Claims Worth Discussing? ……………………… 7 2.2. MARITIME CLAIMS BASED ON THE 1982 CONVENTION…………………………….. 8 2.2.1. Vietnam’s Baseline Legislation…………………………………………. 9 2.2.2. Vietnam’s Claim to Maritime Zones…………………………………….. 10 2.2.3. Presentation of Overlapping Claims……………………………………. 12
3. POLITICAL ISSUES RELATED TO MARITIME DELIMITATION AND OCEANIC GOVERNANCE……………………………………..……………………………………….. 12
3.1. HYDROCARBON RESOURCES………………………………………………………. 13 3.2. SEA-LANES OF COMMUNICATION (SLOCS) ………………………………………. 14 3.3. FISHERIES……………………………………..……………………………………. 16 3.4. THE ENVIRONMENT…………………………………………………………………. 17 3.5 CONTRADICTORY NATIONAL AND SHARED REGIONAL INTERESTS……………….. . 18
3.5.1. Contradictory National Interests in the Region………………………… 18 3.5.2. Regional Interests Versus to the Interests of the International Community……………………………………..………….. 19
4. POLITICAL IMPORTANCE OF THE BASELINE ISSUE………………………………………… 21 5. RATIFICATION OF UNCLOS BY THE REGIONAL STATES – CUSTOMARY LAW…………... 23 6. METHODOLOGY OF STRAIGHT BASELINES………………………………………………… 25
6.1. ANALYSIS OF STRAIGHT BASELINES – ARTICLE 7….………………………………. 26 6.2. THE FISHERIES CASE AND THE STRAIGHT BASELINE REGIME…………………….. 28
7. GENERAL DEFINITIONS …………………………………………………………………….. 32 7.1. “COASTLINE”……………………………………..……………… ………………… 32 7.2 “LOCALITY”……………………………………..…. ……………………………….. 34 II DEEPLY INDENTED AND CUT INTO 1. THE PRELIMINARY GEOGRAPHICAL TESTS………………………………………………… 37 2. DEEPLY INDENTED AND CUT INTO……………………………………………………….…. 37 2.1. DEEPLY INDENTED……………………………………..……………………………. 38 2.1.1. Textual Interpretation of “Deeply Indented” …………………………… 38 2.1.2. Contextual Interpretation………………………………………………… 38 2.2. CUT INTO………………………………………………………..…………….……… 41 2.2.1. Textual Interpretation: “Cut Into” Equals “Several” …….…… …….. .. 41
2.2.2. Contextual Interpretation – The Juridical Bay Regime’s Impact on the “Cut Into” Criterion……………………………………..…………………. 43 2.3. OBJECT AND PURPOSE OF ARTICLE 7……………………………………..……….. 44 2.3.1. Freedom of Navigation…………………………………….. …………… 45 2.4. THE GENERAL PRINCIPLE OF NATIONAL SOVEREIGNTY……………………………. 45 2.5. SUBSEQUENT STATE PRACTICE……………………………………..……………… 47 2.5.1. The South China Sea Region……………………………………..……. 47 2.5.1.1. China……………………………………..…………………….. 48 2.5.1.2. Taiwan……………………………………..…………………… 52 2.5.2. State Practice Outside the Region……………………………………… 53 2.5.2.1. Costa Rica…………………………………….……………….. 53 2.5.2.2. Iran……………………………………..………………………. 54 2.5.2.3. Colombia……………………………………..………………… 54 2.5.2.4. Egypt……………………………………..…………………….. 55
IV
2.5.3. Concluding Comments on Subsequent State Practice………..……… 56 2.6. EQUITY – DE LEGE FERENDA……………………………………………………….. 57 2.7. Straight Baselines of VIETNAM……………………………………..…………….. 58 3. INDENTATIONS COVERAGE OF THE COAST – THE CASE OF EASTERN VIETNAM………… 60 3.1. TEXTUAL INTERPRETATION……………………………………..…………………… 60 3.2. CONTEXTUAL INTERPRETATION……………………………………..……………… 61 3.3. THE BASELINE OF EASTERN VIETNAM………………………………..……………… 61 3.4. CONCLUSION…………………………………….………………………………….. 63 4. CONCLUSION ON “DEEPLY INDENTED AND CUT INTO”……………………………………. 63 III FRINGE OF ISLANDS IN THE COAST’S IMMEDIATE VICINITY 1. INTRODUCTORY COMMENTS…………………………………….. ………………………… 65 2. ISLANDS IN THE STRAIGHT BASELINE REGIME……………………………………..……… 65 3. TEXTUAL INTERPRETATION OF “FRINGE OF ISLANDS” …………………………………… 69 4. ISLANDS THAT FORM A UNITY WITH THE MAINLAND……………………………………..… 70 5. ISLANDS THAT FORM A SCREEN OF THE COAST…………………………………….…….. 71
5.1. PREPARATORY WORK AND SUBSEQUENT UNDERSTANDING………………….…… 72 5.2. FRINGE OF ISLANDS – SCREENING THE COASTLINE……………………………….. 73
5.2.1. Object and Purpose of Article 7……………………………………..….. 74 5.2.2. Concluding Comments……………………………………..……………. 74 5.2.3. Subsequent State Practice……………………………………..………… 75
5.2.3.1. State Practice Outside the South China Sea………………. 75 5.2.4. Concluding Comments……………………………………..……………. 76
5.3. BASELINES OF VIETNAM…………………………………….………………………. 77 6. IN THE COAST’S IMMEDIATE VICINITY……………………………………..………………… 78
6.1. TEXTUAL INTERPRETATION OF “IMMEDIATE VICINITY” ……………………………… 78 6.2. CONTEXTUAL INTERPRETATION……………………………………..………………. 79 6.3. THE PURPOSE OF ARTICLE 7……………………………………..………………… 80 6.4. SUBSEQUENT STATE PRACTICE……………………………………..……………… 80
6.4.1. The South China Sea Region…………………………………….…….. 80 6.4.1.1. China…………………………………………………………… 81 6.4.1.2. Taiwan ………………………………………………………… 82 6.4.2. State Practice Outside the Region……………………………………… 85 6.5. Baselines of VIETNAM …………………………….. …………………………….. 86
6.6. CONCLUDING COMMENTS……………………………………..……………………. 90 7. THE DIRECTIONAL TREND OF THE OUTERMOST ISLANDS…………………………………. 91 7.1. METHOD FOR FINDING THE DIRECTIONAL TREND………………………………….. 92
7.2. DIRECTIONAL TREND AND LEGAL CUSTOM……………………………………..….. 93 7.3. THE BASELINES OF VIETNAM ………………………………… ……………….…… 94
8. CONCLUDING COMMENTS……………………………………..……………………………. 95 IV APPROPRIATE BASEPOINTS 1. INTRODUCTION……………………………………..……………………………………..… 97 2. LEGITIMATE BASEPOINTS……………………………………..………………………… … 98
2.1. BASEPOINTS ON LAND – ABOVE OR ON THE LOW-WATER MARK……………… …. 98 3. DOES THE BASELINE DEPART TO ANY APPRECIABLE EXTENT FROM THE GENERAL DIRECTION OF THE COAST?……………………………………..………………………… 100
3.1. TEXTUAL INTERPRETATION……………………………………..…………………… 100 3.2. CONTEXTUAL INTERPRETATION AND THE PURPOSE OF ARTICLE 7………………… 101 3.3. SUBSEQUENT STATE PRACTICE……………………………………..……………… 103
3.3.1. Cuba and Mexico……………………………………..………………….. 104 3.3.2. Concluding Comments ………………………………………………….. 104 3.4. THE BASELINES OF VIETNAM……………………….. …………………………….. 105
4. LANDWARD WATERS CHARACTERISED AS INTERNAL WATERS………………………… .. 106 4.1. TEXTUAL INTERPRETATION……………………………………..…………………… 106 4.2. CONTEXTUAL INTERPRETATION……………………………………..………………. 106 4.3. SUBSEQUENT STATE PRACTICE……………………………………..……………… 107
4.3.1. China…………………………………….. ……………………………….. 107
V
4.3.2. Burma and Cuba…………………………………….. ………………….. 109 4.4. CONCLUDING COMMENTS……………………………………..……………………. 110 4.4. VIETNAM…………………………………….. ……..……………………………… 110
5. OVERALL EVALUATION OF ECONOMIC INTERESTS PECULIAR TO THE REGION ………….. 113 6. CONCLUSION……………………………………..…………………………………………. 115
V CONCLUSION
1. SHOULD VIETNAM REDRAW ITS BASELINES?…………………………………….. ……… 117
1.1. A REGIONAL STRAIGHT BASELINE REGIME?………………… ……………..…….. 118 1.1.1. State Practice in the South China Sea………………………………… 119 1.1.2. Protest against Baselines in the South China Sea…………………… 120 1.1.3. Practical Use of Baselines in the South China Sea………… ……… 122
1.2. PACTA SUNT SERVANDA…………………………………….. …………………….. 124 1.3. CAPABILITY OF INTERNATIONAL SETTLEMENTS…………………………………….. 125 1.4. POSSIBLE UNDERMINING OF VIETNAMESE INTERESTS…………………………….. 126 2. CONCLUDING COMMENTS……………………………………..……………………………. 127
VI
List of Maps
Straight Baselines of Vietnam
Map 1 The South China Sea Region Page 4 Map 2 Vietnam’s Baselines Legislation Page 9 Map 3 Overlapping Claims in the South China Sea Page 12 Map 4 Tanker Traffic in the South China Sea Page 15 Figure I Methodology of Straight Baselines Page 27 Map 5 Northern Coastline of Norway Page 30 Figure II Baseline Delimitations – Semi-circle Test Page 40 Map 6 Southern Coast of China Page 48 Map 7 Baselines of Hainan and Southern China Page 49 Map 8 Chinese Coastline of Zhanjiang City Page 51 Map 9 Straight Baselines of Taiwan Page 52 Map 10 Baselines of Costa Rica Page 53 Map 11 Baselines of Iran Page 54 Map 12 Baselines of Colombia Page 54 Map 13 Baselines of Egypt Page 55 Map 14 Vietnam’s South-Eastern Coastline Page 58 Map 15 Vietnam’s Eastern Coastline Page 59 Map 16 Eastern Coast of Vietnam Page 62 Map 17 Western Coast of Norway Page 70 Figure III Fringe of Islands Page 72
Map 18 Baselines of Oman Page 75 Map 19 Baselines of Egypt Page 76 Map 20 Western Coast of Vietnam – Islands with Territorial Sea Page 77 Map 21 Southern China – Baselines in the Hong Kong Area Page 81
VII
Map 22 Baselines of Taiwan Page 83 Map 23 Taiwan’s Territorial Sea Page 84 Map 24 Baselines of Cuba Page 85 Map 25 Baselines of Portugal Page 86 Map 26 Western Coast of Vietnam – Distance to Islands Page 87 Map 27 Southern Coastline of Vietnam Page 90 Map 28 Western Coast of Vietnam – Directional Trend Page 95 Map 29 Baselines of the Maldives Page 99 Map 30 Baselines of Mexico Page 104 Map 31 Western Coast of Vietnam Page 105 Map 32 Baselines of Hainan and Southern China Page 108 Map 33 Baselines of Burma Page 109 Map 34 Southern Coast of Vietnam Page 110 Map 35 Extension of Vietnam’s EEZ due to Radical Baselines Page 112 Map 36 Legitimacy of Vietnamese Baselines Page 116
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Chapter I – Introduction
1. Introductory Comments
Straight baselines can be drawn when the normal baseline and closing-lines of
bays and rivers produce a complex pattern of territorial seas and when those
complexities can be eliminated by the use of a straight baseline. The straight
baseline regime was developed in the 1950s as a means to simplify the
territorial boundaries of littoral states. The need to secure fisheries, prevent
fiscal crime and environmental hazards, and ensure national security motivated
demands from the littoral states for maritime zones giving jurisdiction over
their adjacent sea areas. The concepts of zones for the territorial sea, a
contiguous zone and a continental shelf were developed in the 1958
Convention on Territorial Seas and Contiguous Zones (1958 Convention).
These zones where measured from the low-water mark of the coast. If they
were to follow the sinuosity of bays, estuaries and rivermouths, the outer
borders of these maritime zones would be quite complex. Thus, states were
entitled to draw a straight line across such geographical features. For states
with coastlines that were highly irregular due to indentations and fringes of
islands, the system of straight baselines was introduced. The first was a result
of a judgement by the International Court of Justice (ICJ) in a dispute between
Norway and the United Kingdom in 19511, since when many states world-wide
have adopted the system. Seventy-eight states now employ the straight baseline
regime as the point of departure when delimiting their maritime zones.2 The
general trend among states using straight baselines is clear. They draw their
lines as far seaward as possible, hence, not only increasing their areas of
internal waters with full national jurisdiction, and thereby pushing all other 1 The Fisheries Case, United Kingdom vs Norway. International Court of Justice, Year 1951, December 18th, 1951, General List no. 5. (Hereafter ICJ – The Fisheries Case) A comprehensive presentation of the Fisheries Case will be conducted in “Methodology of straight baselines”, section 6.2. 2 Tullio Scovazzi, The Establishment of Straight Baselines System: The Rules and Practise. (445 – 456) D. VIDAS AND W. ØSTRENG (EDS.), ORDER FOR THE OCEANS AT THE TURN OF THE CENTURY, (The Fridtjof Nansen Institute. The Netherlands: Kluwer Law International) (1999) (Hereafter Tullio Scovazzi. “The Establishment…”), p. 446.
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maritime zones further away from the mainland. The US has protested or
asserted its rights against half of these lines, claiming that they are not drawn in
accordance with international law.3 At least eight states in the world have
issued systems that have received protests from other countries.4 Twenty-five
states have objected to the baselines drawn by China in 1996.5 In approaching
the 50th anniversary of the straight baseline regime, it is time to ask: What are
the actual purposes of baselines? On the basis of state practice one might think
that the purpose is to maximise maritime zones, while ideally the purpose
should be merely to simplify the delimitation of the territorial sea. To clarify
maritime borders, secure the legitimacy of the Law of the Sea, and improve the
basis for maritime delimitation between states with overlapping claims, the
question of how to draw baselines must again be put on the agenda.
The objective of this thesis is to analyse Article 7 of the United Nations
Convention on the Law of the Sea (henceforth “UNCLOS” or “the 1982
Convention”), and the subsequent state practice of Vietnam. The existing
baselines will be discussed in relation to international law. The South China
Sea states utilising straight baselines seem all to have drawn straight baselines
according to liberal interpretations of the straight baseline regime. The analysis
of state practice will emphasise the drawn baselines of Vietnam, China, Taiwan
and Thailand. The theis will also discuss whether or not the regional legislation
has similarities in their appliance of Article 7, and whether or not there is a
trend towards a regional baseline regime in the South China Sea. It will briefly
discuss the impact that legitimate baselines would have on oceanic delimitation
in the South China Sea.
This introductory chapter will present the complexity of the South China
Sea conflict and the importance of the baseline issue in regard to the Spratly
Islands dispute. It will also look into the process of ratification of UNCLOS to
establish its relevance for the countries of the South China Sea region, and to 3 Ashley J. Roach, Salient Issues in the Implementation (435 – 444). D. VIDAS AND W. ØSTRENG (EDS.), ORDER FOR THE OCEANS AT THE TURN OF THE CENTURY (The Fridtjof Nansen Institute. The Netherlands: Kluwer Law International) (1999) (Hereafter Ashley J. Roach, “Salient...”), p. 436. 4 Ibid., p. 436. 5 Ibid, p. 436.
3
look at the inter-relationship between UNCLOS’ role as a treaty and customary
international law. Finally, the introductory chapter will introduce the legal
discussion by presenting the method of applying straight baselines and defining
“coastline” and “locality” before giving an overview of the following chapters.
1.1. The South China Sea Region
First, it is necessary to define the geographical scope of the thesis. The South
China Sea is defined by the International Hydrographic Bureau as the body of
water stretching in a southwest to northeast direction, whose southern border is
3 degrees south latitude between South Sumatra and Kalimantan (Karimata
Straits), and whose northern border is the Strait of Taiwan from the northern tip
of Taiwan to the Fujien coast of China6 (see Map 1)7.
The South China Sea as a whole covers 3,685,000 square kilometres, an
area larger than the Mediterranean.8 Like the Mediterranean, the South China
Sea is surrounded by more than two states and connected to other seas by
narrow outlets, making it subject to the regime of semi-enclosed seas, regulated
by UNCLOS Article 122 and 123.9 There are four international straits10 leading
into the sea: the Malacca Strait, the Taiwan Strait, the Luzon Strait and the
Hainan strait connecting the Gulf of Tonkin with the northern part of the South
6 United States Energy Information Administration, South China Sea Region (January 2000) <http://www.eia.doe.gov/emeu/cabs/schina.html#FOOT1>. 7 This map is produced in Corel Draw. It is an illustrative map rather than a map claiming geographical accuracy. The map is copied from the Microsoft Encarta World Atlas with authorisation by letter from Microsoft Norway, 16 February 1999. Hereafter will maps produced likewise be referred to as “Corel Draw Maps”. 8 Stein Tønnesson, Resolving the South China Sea Conflict (24-26 April 1999) (paper presented at the Workshop on the South China Sea Conflict, Centre for Development and the Environment, University of Oslo) (Hereafter Stein Tønnesson, "Resolving…”), p. 7. 9 UNCLOS Article 122 gives the following definition of a “semi-enclosed sea”: For the purposes of this Convention, ”enclosed or semi-enclosed sea" means a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States. See RENATE PLATZÖDER (EDITOR), THE 1994 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA – BASIC DOCUMENTS WITH AN INTRODUCTION (Boston: Martinus Nijhoff) (1995) (Hereafter PLATZÖDER). 10 An international strait is defined by antithetical interpretation of UNCLOS Article 36: This Part does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply. See PLATZÖDER.
4
China Sea. In addition, the sea can be approached from the Indonesian Sunda
and Lombok straits.
Map 1 – The South China Sea Region As background information for the South China Sea conflict in general, the two
main areas with island, islets and reefs in the South China Sea will be
presented. The Spratlys encompass all the islets, reefs, rocks and banks in the
southern part of the South China Sea stretching from the Vietnamese-controlled
Vanguard Bank in the west to the Philippines-controlled Reed Bank in the
east.11 A recent study has identified 48 “groups of features”, which comprise
148 named individual features.12 Another study claims that 25-35 of them are
above water at high tide,13 thus satisfying the basic requirements for islands in
UNCLOS Article 121 (1).14 The Spratlys form an oval southwest to northeast
area of approximately 900-kilometre length, while the average width is roughly
11 Throughout the thesis the English names will, where possible, be used for all insular features in the Spratly and Paracel islands to achieve objectivity in the sovereignty question of these islands. 12 David Hancox and Victor Prescott, A Geographical Description of the Spratly Islands and an Account of Hydrographic Surveys Among Those Islands. International Boundary Research Unit’s (IBRU) Maritime Briefing, volume 1, number 6 (1995) (Hereafter David Hancox and Victor Prescott. "A Geographical…”), Contents and Appendix III. 13 Appendix to MARK J. VALENCIA, JOHN VAN DYKE AND NOEL LUDWIG, SHARING THE RESOURCES OF THE SOUTH CHINA SEA (The Hague: Martinus Nijhoff Publishers) (1997) (Hereafter VALENCIA, VAN DYKE AND LUDWIG, "Sharing…”). 14 UNCLOS Article 121 (1): An island is a naturally formed area of land, surrounded by water, which is above water at high tide. See PLATZÖDER.
5
360 kilometres.15 This 240,000 square kilometre area is about the same size as
the United Kingdom.16 The other area with insular features is the Paracels
which are situated some 400 kilometres east of central Vietnam and 350
kilometres southeast of the Chinese Hainan Island.17 The area consists of about
130 features.18
The number of states with maritime claims in the South China Sea
region depends upon the status given to Taiwan. China’s and Taiwan’s claims
cannot at the outset be separated. The two regimes represent the same Chinese
claim. It is possible, however, to speculate on the basis that Taiwan might at a
later stage make its own separate claims. This thesis does not discuss or take a
stand on the Taiwan issue, but will treat the Taiwanese claims and legislation
separately from those of the People’s Republic of China (PRC). Hence, there
are ten states around the South China Sea: Indonesia, Singapore, Thailand,
Cambodia, Malaysia, Brunei, the Philippines, Taiwan, China (PRC) and
Vietnam. Six of them claim islands in the Spratlys or maritime sphere of the
Spratly area. China (PRC and Taiwan) and Vietnam claim the Paracels, which
are occupied by the PRC.
2. Maritime Conflicts in the South China Sea
The purpose of this section is to present claims related to maritime delimitation
and ocean governance before political issues inter-related with the baseline
question will be discussed in paragraph 3. When the claims based on history
and the military presence on islands are presented first, this is merely to
emphasise the complexity of the South China Sea disputes. Maritime claims are
based on measurement from the baselines, and baselines are therefore the first
subject that states must find a mutual understanding on before further
negotiations on maritime delimitation can continue. Legitimate basepoints can
15 Daniel J. Dzurek, The Spratly Islands Dispute: Who’s on first? International Boundaries Research Unit's (IBRU) Maritime Briefing, volume 2, number 1 (1996) (Hereafter Daniel J. Dzurek, "The Spratly…”), p. 1. 16 Ibid. 17 According to Encyclopaedia Britannica. 18 Stein Tønnesson, "Resolving…”, p. 10.
6
therefore prove to be even more important in an area such as the South China
Sea, which strongly needs confidence building measures to cope with an
uncertain security situation.
2.1. Claims
South Vietnam took possession of six islets in the Spratly group in 1973, which
were taken over by the Democratic Republic of Vietnam (North Vietnam)
already in 1975.19 On 14 March 1988, military forces from Vietnam and the
PRC were engaged in combat at Kennan Reef in the Union Banks (geographic
name is Chigua Reef20).21 Three Vietnamese ships were sunk and more than 70
Vietnamese soldiers died. There have since been frequent episodes involving
fishermen and military personnel from China, Taiwan, Vietnam and the
Philippines.22 By 1997, Vietnam was reported to keep 21-24 features under
occupation, China 8-9, the Philippines 8, Malaysia 3-6 and Taiwan one (Itu
Aba).23 The South China Sea has not been delimited, making all attempts at
ocean governance impossible.
2.1.1. Historical Claims
Vietnam, China and Taiwan claim the Spratlys and the Paracels with title in
history. Vietnam asserts that: It has maintained effective occupation of the two archipelagos [Paracels and Spratlys] at least since the 17th century when they were not under the sovereignty of any other country and the Vietnamese State has exercised effectively, continuously and peacefully its sovereignty over the two archipelagos until the time when they were invaded by the Chinese armed forces.24
19 Stein Tønnesson, "Resolving…”, p. 11. 20 US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER. THE SPRATLY ISLANDS AND PARACEL ISLANDS (Number 801948) (R00118) 3-92. 21 Sheng Lijun, Beijing and the Spratly’s, Issues and Studies, volume 31, number 7 (July 1995): 18-45 (Hereafter Sheng Lijun, ”Beijing and the Spratlys”), p. 26. 22 Stein Tønnesson, "Resolving…”, p. 11. 23 VALENCIA, VAN DYKE AND LUDWIG, “Sharing…”, p. 8. 24 VIETNAM, MINISTRY OF FOREIGN AFFAIRS, THE HOANG SA AND TRUONG SA ARCHIPELAGOS AND INTERNATIONAL LAW (Hanoi: Ministry of Foreign Affairs) (April 1988) (Hereafter VIETNAM, “The Hoang Sa…”), p. 4.
7
Vietnam claims that France administered the islands as part of its protectorate
established under the 1884 treaty between France and Vietnam.25 There is,
however, little evidence of French activity in the Spratly Islands before the
1930s.26 Vietnam has produced a number of sources indicating or supporting
claims to historical presence in the disputed islands.
The Spratly Islands are small and historically no one has ever lived there
permanently, or successfully exploited them economically. They have
primarily been noted as a danger to navigation.27 Thus, it seems unlikely that
under international law, the Spratlys will be given status as islands generating
maritime zones beyond 12 nautical miles. International law provides no basis
for any state to claim the South China Sea as historical waters. For these
reasons it is possible that possession of the Spratly islets will have no effect on
the delimitation of maritime zones, which must be based on distance from the
baselines drawn along the coasts. This makes the subject of this thesis even
more significant.
2.1.2. Are the Sovereignty Claims Worth Discussing?
The different sovereignty claims to the same insular features form a complex
web. On the one hand, reasonable claims based on international law are hard to
legitimise due to uncertain evidence and, on the other hand, most of the claims
are not in accordance with customary international law. One commentator
emphasises that all claims to sovereignty over the features are weak.28 Another
25 In the peace talks after the Sino-Vietnamese border war of February 1979, China was apparently prepared to share the Gulf of Tonkin area “half and half”, but Vietnam maintained its position by relying on the 1887 Sino-French Convention, which defined both land and sea boundaries; negotiations thus continue. After information in Mark J. Valencia and Jon M. Van Dyke, Vietnam's National Interest and the Law of the Sea. Ocean Development and International Law, volume 25 (1994): 217-250 (Hereafter Valencia and van Dyke. "Vietnam's National…”), p. 224. The two states have declared that negotiations on the Gulf of Tonkin shall be closed before the end of the year 2000. An agreement on the land boundary in the area was signed 31 December 1999. The negotiationon maritime issues was first started in January 2000, thus negotiations continue. 26 Daniel J. Dzurek, "The Spratly…”, p. 9. 27 VALENCIA, VAN DYKE AND LUDWIG, “Sharing…”, p. 20. 28 VALENCIA, VAN DYKE AND LUDWIG, “Sharing…”, p. 39.
8
stresses that “[i]t is certainly insufficient in international law to deduce title
from evidence of geographic knowledge and record of navigation routes”.29
One may therefore ask if it is desirable to immerge in the process of
“who owns the Spratlys” at all? Certainly, disputes over small areas of land
territory have also ignited confrontations in the past. Studies emphasise that
territorial disputes have been the single most frequent cause of war over the last
four centuries, being associated with 80-90 percent of all wars.30 In an analysis
of international disputes from 1812 to 1992 it was found that where the
question of territory was at stake, it was three times more likely that the
conflict escalated, than if no territorial issue was involved.31
The aspect of the Spratly dispute most often focused upon is that of
sovereignty. Sovereignty questions have a capacity for engendering conflict,
political and naval, in domestic terms, bilaterally, sub-regionally and in the
Asia- Pacific as a whole.32 This may provide good reason for shelving the
sovereignty question and concentrating on issues that are negotiable and easier
to solve. This thesis will look at the baseline issue, not only in order to examine
the degree to which the parties have respected the principles of international
law, but also in order to focus on an issue that may ultimately prove more
important than the dispute over sovereignty to islands in resolving the South
China Sea conflict.
2.2. Maritime Claims based on the 1982 Convention
In the following sections the claims to maritime zones, made on basis of the
1982 Convention, will be presented.
29 Haller-Trost (1994), supra note 28 at 16, found in VALENCIA AND VAN DYKE AND LUDWIG, “Sharing…”, p. 39. 30 Paul Huth, Empirical Findings and Theoretical Explanations (15-17 July 1998) (paper presented as part of the Conference Borderlands Under Stress, International Boundary Research Unit, Durham) (Hereafter Paul Huth, “Empirical Findings…”), p.8. 31 Ibid. 32 Ian Townsend-Gault, Legal And Political Perspectives On Sovereignty Over The Spratly Islands. (April 24-26, 1999) (paper prepared for the Workshop on the South China Sea Conflict Organised by the Centre for Development and Environment, University of Oslo, Oslo) (Hereafter Ian Townsend-Gault. “Legal…”), p. 1.
9
According to the 1982 Convention, land territory can generate (1) a 12-
nautical mile territorial zone measured from the baseline,33 (2) a contiguous
zone not exceeding 24 nautical miles measured from the baseline,34 (3) a 200-
nautical mile EEZ measured from the baseline,35 and (4) a continental shelf as
far as the outer edge of the continental margin, or to a distance of 200 nautical
miles from the baseline where the outer edge of the continental margin does not
extend up to that distance. The continental shelf shall not exceed 350 nautical
miles from the baseline or shall not exceed 100 nautical miles from the 2,500
metre isobath, which is a line connecting the depth of 2,500 metres.36
2.2.1. Vietnam’s Baseline Legislation
Vietnam declared its respect for
international law and practice in a
statement in 1977: The Government of the Socialist Republic of Vietnam will settle, with the countries concerned, through negotiations on the basis of mutual respect for independence and sovereignty, in accordance with international law and practices, the matters relating to the maritime zones and the continental shelf of each country.37
On 12 November 1982, the
Socialist Republic of Vietnam
issued a declaration on its territorial
waters. This declaration builds on
the principles of UNCLOS.
33 UNCLOS Article 3. 34 UNCLOS Article 33. 35 UNCLOS Articles 55 and 57. 36 UNCLOS Article 76. 37 Statement of 12 May 1977 on the Territorial Sea, the CZone and the Continental Shelf of Vietnam, found in ForDaily Report: Asia & Pacific (24 May 1977).
B
Map 2 – Straight aselines of Vietnam
ontiguous Zone, the Exclusive Economic eign Broadcast Information Service (FBIS),
10
Straight baselines were drawn between 11 basepoints along the Vietnamese
coast, stretching in a semicircle from the island Thu Chu in the southwest to the
island Con Co (Tiger Island) in the north. Tiger Island is located at the seaward
opening of the Gulf of Tonkin. Vietnam's 10 baseline segments run for a total
of 846 nautical miles, enclosing an area of 27,000 square nautical miles as
internal waters38 (see Map 2)39. The Vietnamese baselines are up to 161.8
nautical miles long,40 and they are situated up to 80.7 nautical miles from the
coast.
The Gulf of Tonkin is disputed by claims from China and Vietnam.
Vietnam claims that the whole area should be considered as historic waters.41
China might not oppose the view that the Gulf of Tonkin is a historic gulf.42
However, it is unlikely that a historical claim will be internationally recognised
due to the Tonkin Gulfs former status as high seas and since it is surrounded by
two countries. China and Vietnam have issued mutual declarations stating that
the dispute will be settled before the end of year 2000 by negotiations.43 The
Gulf of Tonkin is not subject to this analysis.
2.2.2. Vietnam’s Claim to Maritime Zones
Vietnam, on 12 May 1977, claimed the waters inside its straight baseline
system as internal and the following maritime zones measured from these
baselines: The territorial sea of the Socialist Republic of Vietnam has
a breadth of 12 nautical miles […]. The contiguous zone of the Socialist Republic of Vietnam is
a 12 nautical mile maritime zone adjacent to and beyond the territorial sea […].
38 Robert W. Smith, Global Maritime Claims, Ocean Development and International Law, volume 20, number 1 (1989): 83-103. (Hereafter Robert W. Smith, “Global…”), p. 90. 39 DEFENCE MAPPING AGENCY HYDROGRAPHIC / TOPOGRAPHIC CENTER (Base: Chart No. 550, 6. Edition, Washington D. C.) (15 May 1982). 40 DEFENCE MAPPING AGENCY HYDROGRAPHIC / TOPOGRAPHIC CENTER (Base: Chart No. 550, 6. Edition. Washington D. C.) (15 May 1982) (Hereafter US Dep. “Straight..Vietnam”), 5-5. 41 Zou Keyuan, Maritime Boundary Delimitation in the Gulf of Tonkin. Ocean Development & International Law, number 30 (1999): 235-254, p. 240. 42 Ibid. p 242. 43 Supra note 25.
11
The Exclusive Economic Zone of the Socialist Republic of Vietnam is adjacent to the Vietnamese territorial sea and forms with it a 200 nautical mile zone […].
The continental shelf of the Socialist Republic of Vietnam comprises the seabed and subsoil of the submarine areas […] to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline […]
The islands and archipelagos […] beyond the Vietnamese territorial sea mentioned in paragraph 1, have their own territorial seas, contiguous zones, exclusive economic zones and continental shelves, determined in accordance with the provisions of paragraphs 1, 2, 3, and 4 of this statement. […].44
Thus, Vietnam made a broad claim to zones measured both from its coastal
baselines, from the islands close to its coast that it claims sovereignty to, and
from the Spratlys and Paracels. The latter may refer to either insular features of
the Spratly Islands or the Spratly and Paracel Islands as a whole. There are
several questions related to the Vietnamese claim. First, it is doubtful if the
Spratlys and the Paracels can be referred to as “archipelagos”. Second, it is
questionable whether the small features in the two areas can generate maritime
zones according to Article 121. And finally, it is quite clear that artificial
islands cannot generate maritime zones, because such islands are only entitled
to a 500-meter security zone, according to Article 60 (5)45. The Vietnamese
statement clearly indicated that Vietnam in 1977, had the intention at some
point, to claim EEZs and continental shelves for the Spratlys and Paracels. It
seems that Vietnam later has changed its view. Van Dyke claims that the
current position of Vietnam is that the Spratly Islets do not generate EEZs and
continental shelves, and that any zones around these islands should be limited
44 Statement on the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of Vietnam, found in US Department of State. Straight Baselines: Vietnam. Limits in the Seas, number 99 (12 December 1983) (Hereafter US Dep. “Straight..Vietnam”), 1-3. 45 Article 60, Artificial islands, installations and structures, (5) The breadth of the safety zones shall be determined by the coastal State, taking into account applicable international standards. Such zones shall be designed to ensure that they are reasonably related to the nature and function of the artificial islands, installations or structures, and shall not exceed a distance of 500 metres around them, measured from each point of their outer edge, except as authorized by generally accepted international standards or as recommended by the competent international organization. Due notice shall be given of the extent of safety zones. See PLATZÖDER.
12
to territorial seas.46 Even if such a claim is more likely to be in conformity with
international law, it is still uncertain, according to Van Dyke, what the official
Vietnamese standpoint will be on this question.
2.2.3. Presentation of Overlapping Claims
It is referred to Map 3,47 which
illustrates the overlapping claims
of Vietnam, China, Taiwan, the
Philippines, Brunei and Malaysia.
3. Political Issues Related to Maritime Delimitation and Governance
The South China Sea dispute is a game in which the stakes are high for the
involved parties. In this section the thesis will present the issues concerned and
thereby stress the importance of conducting a proper maritime delimitation.
Although the presentation is not comprehensive, by presenting (1) hydrocarbon
resources, (2) sea-lanes of communication, (3) fisheries, and, finally, (4)
environmental problems, it indicates the some important issues.
46 Interview with Nguyen Qui Binh, Legal Advisor to the Vietnamese Foreign Ministry, 5 July 1995, found in VALENCIA, VAN DYKE AND LUDWIG, “Sharing…”, p. 31. It might be noted that Fu Kwen-chen, who now presides over the Taiwan-PRC talks, is recorded on film making a similar statement (e-mail from Ian Townsend-Gault, Professor of Law, University of British Columbia, 5 August 1999). 47 VALENCIA, VAN DYKE AND LUDWIG, “Sharing…” p. 259.
Map 3 – Overlapping claims in the South China Sea
13
3.1. Hydrocarbon Resources
The expectation of discovering petroleum resources is considered to be the
main factor underlying the intensity of the conflict over the South China Sea.
Offshore oil production is seen as either a way to gain hard cash through
exports, or a means to satisfy the coastal states’ own demand for petroleum
resources. Hydrocarbon resources, of course, is a crucial factor for economic
growth. It is assumed that there is a genuine risk that oil exploration in
contested waters could lead to naval combat,48 founded on arguments of
sovereign rights to the area. This is emphasised in a statement by a senior
Chinese official who expects the conflict to evolve once an accurate estimate of
petroleum resources becomes available.49 The eagerness of the parties to
pursue their claims is therefore understandable. From a security point of view it
might be an advantage to complete demarcation of maritime zones before oil
exploration starts in earnest.
Is it likely that there are exploitable hydrocarbon resources in the
Spratly area? Oil companies often tend to downplay the potential of new
exploitable areas, hoping for more liberal and lucrative contract terms, while
governments, speculators and internal project staff of oil companies may
exaggerate the probability for huge oil reserves to gain money and political
support for their field of interest. So far there is complete confusion over what
the Spratly area may hold. The Lamont Doherty Geological Observatory and
the German Geological Survey are optimistic,50 while the US Department of
Energy claims that there is no independent evidence that petroleum resources
exist in significant quantities.51
48 Stein Tønnesson, “Resolving…”, p. 19. 49 Personal communication with a senior Chinese (PRC) official during informal talks in 1998. It should be noted, however, that test drilling in contested waters constitutes a high risk for foreign oil companies, and one can therefore assume that extensive test drilling will be difficult to complete before an agreement on maritime delimitation is in place. 50 VALENCIA, VAN DYKE AND LUDWIG, “Sharing…”, p. 9. 51 There is little evidence outside of Chinese claims to support the view that the region contains extensive oil resources. Because of a lack of exploratory drilling, there are no proven oil reserve estimates for the Spratly or Paracel Islands, and no commercial oil or gas has been discovered there. See United States Energy Information Administration at http://www.eia.doe.gov/emeu/cabs/schina.html. The Norwegian firm PGS Nopec, which made a survey in 1997 in co-operation with Indonesian, Malaysian and
14
During the 1990s, oil companies lost some of their initial interest in the
South China Sea, after disappointing exploration results, i.e., on the
Vietnamese shelf. They have not shown any keen interest in starting to drill in
the Spratly area.52 Successful maritime delimitation, which clarifies ownership
to territories, may therefore be a necessary precondition for renewed interest
from major oil-companies and thereby effective exploration of petroleum
resources.
If we conclude that the multinational dispute contributes to discouraging
serious oil companies from exploring the area, a delimitation agreement might
increase their interest.
3.2. Sea-lanes of Communication (SLOCs)
There are three aspects of the SLOC problem: a regional aspect, an
international aspect and a shipping aspect. The importance for the regional
economy of secure SLOCs cannot be exaggerated. The region is maritime-
centred, having few land-based transport systems, with thousands of harbours:
Singapore and Hong Kong being the dominant ones.53 This means that regional
trade depends on open sea-lanes. Internationally, the main utility for
transporting oil and other goods important to world trade is ships. In this regard
the South China Sea is one of the most used passageways in the world, playing
a significant role in the transportation of oil from the Middle East to Japan, the
Philippines, China and South Korea.54 Forty percent of Japan’s imports and
Vietnamese governments, came up with results that did not conform the Chinese expectations. It shot three seismic lines through the western part of the Spratly area, and reported huge structures that could contain large reserves of hydrocarbons. However, there were also some geological risk factors, such as the presence of good source rocks. The conclusion was that the question of whether or not the structures contain oil and gas could be answered only by drilling. Personal communication between Professor Stein Tønnesson and Mr. Kjell Bugge Johansen, PGS Nopec 19 February 1999 and 31 January 2000. See Stein Tønnesson, Vietnam's Objective in the South China Sea: National or Regional Security? Contemporary Southeast Asia, volume 22, number 1 (forthcomming March 2000): 19. 52 Talk by Director Willy Olsen of the Norwegian oil company STATOIL at Centre for Development and the Environment (14 June 1999). 53 Stein Tønnesson, “Resolving …”, p. 20. 54 The significance for these countries is illustrated by the fact that the Philippines receives 85 % of its total oil consumption from tankers passing through the South China Sea (South Korea 79 % and Japan 67 %). Found in JOHN H. NOER, CHOKEPOINTS MARITIME ECONOMIC CONCERNS IN SOUTHEAST ASIA (Washington: National Defence University Press) (1996) (Hereafter John H. Noer, “Chokepoints:…”), p. 24.
15
exports pass through the South China Sea, making the SLOCs important for the
stability of not only Japan’s but the world economy.
Map 4 – Tanker Traffic in the South China Sea55 Shipping interests is closely related to the baseline issue. Areas enclosed by
straight baselines fall under the regime of internal waters where passage of
merchant or military ships can be restricted by national governments. This
problem will be elaborated on in “Political importance of the baseline issue”,
section 4.
The Malacca Strait is the second busiest strait in the world after the
English Channel. In 1993, at least three supertankers passed fully laden through
this strait every day.56 The regional dependence on oil imports by sea is likely
to grow significantly in the years to come, although the Asian crisis 1997-1999
has somewhat reduced the pace of the annual increase in energy consumption.57
This implies that the significance of the South China Sea for world transports
will increase in the future. 55 JOSEPH R MORGAN AND MARK J. VALENCIA, ATLAS FOR MARINE POLICY IN SOUTHEAST ASIAN SEAS (University of California Press, Berkley) (1983), p. 95. 56 JOHN H. NOER, “Chokepoints:…”, p. 26.
16
The legal principle produced to manage these considerations is freedom
of navigation. In the drafting of UNCLOS, freedom of navigation was the
conflicting consideration to the interest of national jurisdiction, and the
principle led to the evolution of the various maritime regimes that exist today
as part of customary international law. Politically, this principle is the driving
force behind international interest in the region, stressed by the international
community, with the United States as the supreme advocate. As freedom of
navigation may be affected by maritime delimitation of the South China Sea,
the resolution of the baseline issue is important to all countries with an interest
in the freedom of navigation.
The South China Sea has always been troubled by piracy58 since the
waters have no internationally recognised authority and since it has been
possible to pay off the local police in some places. In 1997, 105 of the 229
shipboard attacks reported worldwide took place in the South China Sea.59
Piracy increases the risk for invested capital and for sailors operating in
the area. It is therefore important not only to get co-operation and political will
to handle the piracy problem, but also to start negotiations on maritime
delimitation to demarcate the coastal states’ areas of control.60
3.3. Fisheries
Some five hundred million people live around the South China Sea and depend
on its living resources for more than 70 % of their direct and 85 % of their 57 Stein Tønnesson, “Resolving…”, p. 21. 58 Piracy is one of the following acts: (1) Any illegal act of violence, detention, or any act of depredation directed against persons or
property and committed for private ends by the crew or the passengers of a private vessel or private aircraft; (a) against vessels on the high seas other than that on which the act is committed, or; (b) against vessels, or persons or property in territory outside the jurisdiction of a state.
(2) Any act or voluntary participation in the operation of a ship or of an aircraft with knowledge and facts which makes the ship or aircraft a pirate ship or aircraft.
(3) Any act of incitement or of intentional facilitation of an act described in paragraph 1 or paragraph 2 of this Article.
Proposed by the International Law Commission, Yearbook of the International Law Commission, 1955, volume I, (hereafter ILC volume I), point 1. p. 228. 59 Tracy Dahlby, Crossroads of Asia: South China Sea. National Geographic, volume 194, number 6 (December 1998) (Hereafter Tracy Dahlby. “Crossroads…”), p. 23.
17
indirect protein.61 In some areas there is virtually no fish or other seafood left,
and the Food and Agriculture Organisation of the United Nations suggests that
present fishing practices in the South China Sea are not sustainable.62 At the
same time, while the fish resources are unsustainable, the population of the
coastal region is growing.
Fisheries in the South China Sea are virtually unregulated, and coastal
waters have been seriously over-fished. Consequently, fishermen from
Thailand, China, Taiwan and other nations go further out to sea, and also
venture into the waters of neighbouring states.63 It is also a serious problem that
some fishing communities are using cyanide and dynamite to catch fish in the
coral reefs, destroying the reefs and a sustainable environment for further fish
production. Migrating tuna are reported to be threatened by extinction because
of over-fishing, mainly in the South China Sea.64 In the absence of recognised
maritime zones no one has a clear authority to prevent illegal fishing.
On the basis of these facts, the importance of establishing a management
regime for the South China Sea’s fisheries cannot be over-exaggerated. This
may perhaps be done without delimiting national maritime zones if a
multilateral management regime is instituted, but a successful delimitation of
national zones would no doubt facilitate the process.
3.4. The Environment
Population growth and urbanisation in coastal areas have led to tremendous
growth in sewage, which is let directly into the sea. The situation may soon
resemble the problems experienced in the Mediterranean during the 1970s
when pollution left much of the sea lifeless.65 The dumping of industrial waste
and the concern for oil spills in disputed waters is not only an environmental
60 Enhanced regional co-operation is a key element in overcomming the piracy problem in the future. See Zou Keyuan, Enforcing the Law of Piracy in the South China Sea. Journal of Maritime Law and Commerce, volume 31, number 1 (January 2000): 107-117. 61 Ian Townsend-Gault, “Legal…”, p. 4. 62 Ibid. 63 Stein Tønnesson, “Resolving…”, p. 16. 64 Ibid. 65 Ibid.
18
threat, but also a problem for the governments. On the one hand, they are
reluctant to pay the enormous costs for instituting the necessary environmental
protection measures. On the other hand, they are eager to gain political and
legal recognition by displaying responsibility. As long as there is no clear
demarcation of the South China Sea, the states tend to claim responsibility
through various declarations without investing the necessary resources to
actually protect the environment.
The political issues of hydrocarbon resources, SLOCs, Fisheries and the
environment are important for regional development. One possible counter
measure is to start maritime delimitation of the South China Sea, in which the
starting point for negotiations is the legitimacy of baselines.
3.5. National and Regional Shared Interests in the Region
This paragraph will discuss contradicting national interests as far as the
drawing of baselines in the South China Sea region is concerned. It will also
discuss the regional countries’ mutual interest in drawing radical baselines that
reduce the area of high seas, thus constituting a conflict of interest between the
region and the international community. This will serve as a background for the
discussion of whether or not a regional regime of straight baselines can be said
to have emerged in the South China Sea.66
3.5.1. Contradictory National Interests in the Region
What political incentives do the governments of regional states, in particular
Vietnam, have for drawing straight rather than normal baselines?
Since baselines delimit internal waters where states enjoy full national
jurisdiction, and serve as point of measurement for all maritime zones and is
the point of departure for negotiations over maritime delimitation, states have
an objective in drawing them as far out to sea as possible. As discussed in
paragraph 3.1.-3.3., states in the South China Sea area have a particularly
strong interest in securing sea- and continental shelf resources. This is due to
66 Reference is made to chapter V, paragraph 1.1. at page 117.
19
the relatively poor condition of the countries’ economies, which create a
national need for economic growth and high sustainability of seafood
production in coastal areas, and to the fact that many states compete for the
same areas and recourses. In addition, littoral states experience a constant
threat from foreign fishing vessels, and smugglers conducting fiscal crime. The
navies of the neighbouring states also represent an obvious threat to national
interests in the South China Sea. It was quite recently, in 1988, that the Chinese
and Vietnamese navies clashed openly in the Spratly area. This shows that the
powers of the region are willing to use force if they see it as necessary. Thus,
the Spratly conflict has contributed to highlighting national security interests in
the South China Sea area. This could be a part of the background for any
radical baseline legislation in the region. Vietnam, China and Taiwan have
drawn their baselines, Malaysia has so far deprived form publishing any
baselines, while the Philippines can legitimately use straight archipelagic
baselines because of their status as an archipelagic state.
State legislation, which will be presented in this thesis, forms examples
of how the economic and security interests of the coastal states have
materialised in state practice.
3.5.2. Regional Interests Versus the Interests of the International
Community
On a regional level, one may ask if the littoral states have a shared interest in
drawing radical straight baselines, leading to a conflict of interest between the
South China Sea Region and the international community.
Vietnam, China, Taiwan, the Philippines, Brunei and Malaysia have
ownership interests in the sea and the seabed resources, in environmental
protection, management and development of the living resources of the sea.
These interests would be best secured through jurisdictional and actual control
of the area. If regional states were able to co-operate on environmental and
security issues, there could be prospects for proper governance of the area. In
the high seas, however, there can be no regional control, since UNCLOS does
20
not have rules for securing national interests in this area. The resources of the
high seas are free for private initiatives while the minerals at the ocean floor,
called the area in UNCLOS provisions, belong to the members of the global
community. How large the high seas and the area would be with conservative
baselines has not been calculated yet, and is therefore uncertain. The status of
the Spratlys and the Paracel islands is crucial to the size. If these islands were
to generate extensive maritime zones, the whole of the South China Sea would
be under regional control. However, if they are only entitled to a 12-nautical
mile territorial sea, vast areas of ocean could still be regarded as high seas and
the area would not be challenged by continental shelves claims. It is highly
uncertain whether the small insular features of the South China Sea can sustain
human habitation and economic life of their own, as is necessary according to
Article 121 (3). This is an important issue in resolving the South China Sea
conflict.67 Nevertheless, the states have an interest in getting the largest area
possible under their control. Radical baselines drawn far from coastlines will
decrease the area of high seas in the middle of the South China Sea.
Accordingly, there is a shared regional interest in drawing baselines as far
seawards as possible, although only, of course, when this does not favour one
of the regional nations at the cost of another.
The international community has a direct economic interest in seabed
resources found under the high seas area (the Area), in accordance with Article
136 of UNCLOS (“Common Heritage of Mankind”)68. Transportation of oil
and other trade goods through the South China Sea invites the international
community to be particularly interested in regional stability in order to protect
free navigation. Trade routes for international shipping are important for world
trade and stability in security issues. The drawing of liberal baselines in the
area, producing huge areas governed as internal waters where there is no right
to free navigation, contradicts the interests of the international community. 67 Stud. Jur. Marius Gjetnes is producing a thesis on the legal regime of islands in the South China Sea. The thesis will identify the features known as the Spratly islands and determine whether or not they can independently generate any ocean space, hence what significance the islands really have in the dispute. 68 Article136 Common heritage of mankind: The Area and its resources are the common heritage of mankind. See PLATZÖDER.
21
Baseline legislation has resulted in protests from several countries outside the
region. Helping provide peace and stability, and securing international
economic interests through legislation following a multilateral agreement
would consequently be of high importance for non-regional states. Likewise,
the freedom of navigation (directly) and security (indirectly) will be threatened
if co-operation is not developed. However, the international community’s
security and shipping interests do not give regional states any political
incentive to draw their baselines differently. Rather, UNCLOS awards a coastal
state huge areas of maritime jurisdiction if it draws radical lines. Conclusively,
it should be emphasised that the combination of each nation’s separate interests
and in the regional interest in minimising the high seas is enhancing a radical
regional practice in drawing baselines.
4. Political Importance of the Baseline Issue
According to customary international law, a land territory generates a set of
maritime zones with different purposes and jurisdictional rights for the coastal
state. The one thing these zones have in common is that they are all measured
from the baseline. I refer here to UNCLOS Article 3 for the territorial sea,69
Article 33 (2) for the contiguous zone,70 Article 48 for archipelagic waters,71
Article 57 for the EEZ,72 and, finally, Article 76 (1) for the continental shelf.73
69 UNCLOS Article 3: Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention. See PLATZÖDER. 70 UNCLOS Article 33 (2): The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Ibid. 71 UNCLOS Article 48: The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. Ibid. 72 UNCLOS Article 57: The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention. Ibid. 73 UNCLOS Article 76 (1): The continental shelf of a coastal State comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. Ibid.
22
Delimitation of maritime areas depends on proper baselines in order to
utilise the principles of international law, e.g., the principles of equidistance.74
For the delimitation process to gain international recognition the baselines must
be satisfactory for other states, by properly applying UNCLOS’ provisions.
The baseline regime also produces its own maritime zone; the zone of
internal waters (Article 8 (1)).75 The zone of internal waters was developed
when the baseline was separated from the low-water line of the coast,
according to UNCLOS Article 5, based on the Fisheries Case ruling in 1951. In
this case, the court found that the proper baseline could be the set of
geometrically produced lines encompassing the outermost island of the
Norwegian skjærgaard. This straight baseline system, provided for in
UNCLOS Article 7, produces a maritime zone where the coastal state has
complete national jurisdiction. Exempt from this rule are areas that were not
previously considered internal waters. According to Article 8 (2), the right of
innocent passage after UNCLOS Section 3 is valid for these exempted areas.
The passage is innocent as long as it is not prejudicial to peace, good order or
security of the coastal state (Article 19 (1)).76 This legislation protects the
shipping interests of other states, where the appliance of straight baselines leads
to subjugation of waters formerly part of the high seas. It should be noted that
by explicitly stating “Article 7” in Article 8 (2), the right to innocent passage is
not valid inside local straight baselines after Article 9 and 10 regulating straight
closing lines of rivermouths and bays.
The baseline regime is a necessary first step in ocean delimitation, and is
important for achieving national control in waters close to state territory. It is
also of importance for all countries dependent on shipping or military transit
passage through such waters. As will be shown later in the thesis, the 74 Baselines can also be disregarded in a process of maritime delimitation, which was the case in the treaty between Vietnam and Thailand from 1997 (see discussion of this issue in chapter V). However, by following the system of UNCLOS, one has to take baselines as the point of departure, i. e. UNCLOS Article 3. 75 UNCLOS Article 8 (1): Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. See PLATZÖDER.
23
Convention text of Article 7 is vague. The regional states’ claims are as radical
as the interpretations of the text are uncertain. The goal of the thesis is to
establish which baselines in the region are legitimate and which are
questionable if we proceed from international law. The thesis will also analyse
how a proper appliance of the baseline regime will affect the delimitation
process in the South China Sea, and argue why it is important for the coastal
states to apply proper interpretations in conformity with international law. The
political issues discussed above are all related to proper oceanic governance.
Such oceanic governance can be dealt with through negotiations based upon
international law, in which the question of baselines may prove to be an
important first step for the states in approaching each other.
5. Ratification of UNCLOS by the Regional States – Customary Law
The 1982 Convention entered into force on 16 November 1994, after Guyana
became the 60th nation to ratify it.77 As of 16 November 1998 there are 130
parties to the Convention, now including the majority of both developing and
developed countries.78 This means that the 1982 Convention is likely to achieve
global recognition as treaty law.
All the South China Sea claimants (except Taiwan) have ratified the
Convention: Vietnam as declared on 25 July 1994,79 China as declared on 15
76 UNCLOS Article 19: Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. See PLATZÖDER. 77 Willy Østreng and Davor Vidas, Contemporary Trends in Ocean Law and Policies: An Overview. (1 – 5) D. VIDAS AND W. ØSTRENG (EDS.), ORDER FOR THE OCEANS AT THE TURN OF THE CENTURY (The Fridtjof Nansen Institute. The Netherlands: Kluwer Law International) (1999) (Hereafter Østreng and Vidas, “Contemporary Trends…”), p. 1. 78 Ibid. The list of parties to the list of parties to the Convention, maintained by the Division for Ocean Affairs and the Law of the Sea of the UN Secretariat, Office of the Legal Affairs, includes 129 states and the European Community, note 3. 79 The Socialist Republic of Viet Nam, by ratifying the 1982 United Nations Convention on the Law of the Sea, expresses its determination to join the international community, found in Nations Convention on the Law of the Sea and to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, see United Nations, Oceans and the Law of the Sea, Declarations and statements (United Nations publication, Sales No. E.97.V.3). http://www.un.org/Depts/los/los_decl.htm. (Hereafter United Nations, “Declarations…”). Date of declaration found in United Nations, Oceans and the Law of the Sea, Table showing the current status of the United Nations Convention on the Law of the Sea and of the Agreement relating to the implementation of Part XI of the Convention (1999 ) http://www.un.org/Depts/los/los94st.htm. (Hereafter United Nations, ”Table..”).
24
May 1996,80 the Philippines as declared on 8 May 1984,81 Malaysia as declared
on 14 October 1996,82 and, finally, Brunei which ratified the Convention as
declared on 5 November 1996.83 Taiwan has delimited its waters according to
the Convention, but cannot – because it is not party to the Convention – ratify it
formally.
It is clear that the regime of baselines and maritime zones provided for
in the Law of the Sea Convention can be regarded as universal treaty law. But
has the straight baseline regime also become customary international law? The
answer to this question decides if all states, including those not party to the
Convention, are bound by its principles. Since the South China Sea states
(excluding Taiwan) have ratified UNCLOS, they are bound by its content to
the same degree as if it were part of customary international law.
In the 1951 Fisheries Case, the ILC claims that it made a precise
declaration to the effect that the Norwegian system of straight baselines, based
on three vague criteria the Court had accepted, was not contrary to international
law.84 The International Law Commission did not find reason to enact a
maximum length for straight baselines, thus supporting an argument claiming
that the 1958 Convention was an expression of customary law. For this
particular reason UNCLOS includes much of the same text as the ruling in the
Fisheries Case.
The fact that the 1982 Convention adopted the rules of straight
baselines, unchanged from the 1958 Convention, gives due support to the
conclusion that it is customary international law.85
80 United Nations, Law of the Sea Bulletin (LOS Bull.). Number 32 (1996). , p. 37. 81 Date of declaration found in United Nations, ”Table..”. 82 In accordance with article 310 of the United Nations Convention on the Law of the Sea, the Government of Malaysia makes the following declarations: 1. The Malaysian Government is not bound by any domestic legislation or by any declaration issued by other States upon signature or ratification of this Convention, see United Nations, “Declarations…”. Date of declaration, see United Nations, ”Table..”. 83 Date of declaration, see United Nations, ”Table..”. 84 ILC volume, section 16, p. 203. 85 E. D. BROWN, THE INTERNATIONAL LAW OF THE SEA: VOLUME I INTRODUCTORY MANUAL (Aldershot, Darthmouth) (1994) (Hereafter E. D. Brown. “The International…”), p. 24. UNCLOS Article 7 introduces paragraph 2 of Deltas and other natural conditions, and low-tide elevations in paragraph 4, see p. 26.
25
In a report to the UN General Assembly, occasioned by the 10th
anniversary of the adoption of the 1982 Convention, the Secretary-General
concluded that: There is a striking convergence of practice towards accepting the concepts, principles and basic provisions embodied in the Convention. Such acceptance is notable, particularly in respect of the territorial sea […].86
This indicates that Article 7, a part of the territorial sea legislation in chapter II,
is an expression of customary international law. Conclusively, all states
utilising the straight baseline system are referring to UNCLOS’ provisions and
phrases as directly used in Article 7. It is therefore quite possible that Article 7
is customary international law. However, the Convention text is rather vague,
and this reduces the importance of Article 7 regardless of whether it is
customary law or not. Therefore, the question is one of interpretation. It
remains uncertain which principles, conservative or radical, are part of
customary international law. One of the goals of this thesis is to clarify this
subject.
6. Methodology of Straight Baselines
The criteria for using straight baselines are strictly geographical, and during
this introduction to the methodology of straight baselines, reference is made to
the “straight baseline utilisation chart” (Figure I, below). This chart illustrates
the conditions that should be fulfilled, and the order in which they should be
considered, when drawing legitimate straight baselines. The two main legal
sources for the straight baseline system, in addition to state practice, are
UNCLOS Article 7 and the Fisheries Case. The straight baseline system has
title in UNCLOS Article 7 (1):
86 Found in ASHLEY J. ROACH, AND ROBERT W. SMITH, UNITED STATES RESPONSES TO EXCESSIVE MARITIME CLAIMS, SECOND EDITION (Boston, Martinus Nijhoff) (1996) (Hereafter ROACH AND SMITH, “United States…”), supra note 22, p. 12.
26
UNCLOS Article 7 Straight baselines
1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. 2. Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention. 3. The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 4. Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or except in instances where the drawing of baselines to and from such elevations has received general international recognition. 5. Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage. 6. The system of straight baselines may not be applied by a State in such a manner as to cut off the territorial sea of another State from the high seas or an exclusive economic zone.87
87 PLATZÖDER, p. 4 and 5.
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Figure I – Methodology of Straight Baselines
6.1. Analysis of Straight Baselines – Article 7
When analysing the utilisation of straight baselines, one should start with the
coastline and see if it fulfils one of two preliminary tests. These tests are
strictly geographical: either the coastline must be “deeply indented and cut
into” or there must be “a fringe of islands along the coast in its immediate
vicinity” (Article 7 (1)). It is only legitimate to draw straight baselines if one of
the preliminary tests gives a positive result.88 If the criteria are not met, the
proper baseline will either be identical to that of the low-water mark, according
88 UNITED NATIONS, OFFICE FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, BASELINES: AN EXAMINATION OF THE RELEVANT PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (United Nations: New York) (1989) (Hereafter UNITED NATIONS. “Baselines:…”), p. 22.
28
to Article 5, or with a local straight baseline, which might be the mouth of a
bay, river or estuary, according to Article 9 or 10.
For areas along the coastline that test positively, the next step is to find
appropriate basepoints between which a straight baseline can be drawn. The
conditions regulating basepoints are found in Article 7, paragraphs 2-6.
In addition to physically locating the basepoints, one must establish that
three conditions are fulfilled. First, the general direction of the baseline should
not depart from the general direction of the coast (paragraph 3). Second, the
waters on the landward side of the baseline must be sufficiently close to the
land to be subject to the regime of internal waters (paragraph 3). And third, the
baseline must not cut off the territorial sea of another state (paragraph 6). These
three conditions must all be fulfilled, and if they are, then the coastal state can
utilise straight baselines (ref. Figure I, lower level). However, if some or not all
of these conditions are fulfilled, then Article 7, paragraph 5, provides for an
additional possibility. A straight baseline can be drawn if strong economic
interests peculiar to the region are present. The results of the overall evaluation
will either be that the basepoints are appropriate and that straight baselines can
be utilised, or that the basepoints are inappropriate and the baselines cannot be
utilised. With inappropriate basepoints, the proper baseline cannot be drawn
further seawards than an interpretation of paragraphs 2-4 and 6 would indicate.
The regime of straight baselines was codified on the basis of the
Fisheries case. Its importance for the development of Article 7 will be
discussed in the following section.
6.2. The Fisheries Case and the Straight Baseline Regime
The baseline issue was originally dealt with at the Hague Conference for the
Codification of International Law in 1930.89 The straight baseline criteria stems
from the ICJ’s judgement in the 1951 Fisheries Case; a judgement which was
rendered by 10 votes to 2.90 This Anglo-Norwegian conflict first arose at the
89 ILC Volume I, Summary Records of the fourth session, at 30, p. 171-172. 90 ICJ – The Fisheries Case, p. 116.
29
turn of the century, when a number of British vessels were fishing in
competition with local Norwegian fishermen in waters close to the Norwegian
coast. The United Kingdom declared that the baselines claimed by Norway in a
Royal decree of 12 July 1935 were illegitimate, and that baselines should be
drawn at the low-water mark of the coast. Norway contended that the fishery
zone established in the 1935 decree was not in contravention of the precepts of
international law, and in any event corresponded to historical rights long
possessed by Norway.91 When the Court ruled in Norway’s favour, the reason
given was not that of Norway’s historical claim, which was not evaluated, but
the straight baseline, which was considered legitimate along Norway’s fringes
of islands and the parts of the coast that were deeply indented and cut into.
UNCLOS Article 7 is in fact a description of the Norwegian coastline.92
The codified provisions of Article 7 are so influenced by the Fisheries Case
that several provisions are actually reproduced directly from the ruling. The
following extracts from the ruling illustrate the close relationship between the
Fisheries Case and the text of Article 7: Where a coast is deeply indented and cut into, as is the case of Eastern Finnmark, or where it is bordered by an archipelago such as the “skjaergaard” along the western sector of the coast here in question, the base-line becomes independent of the low-water mark and can only be determined by the means of geometrical construction…93 Some reference must be made to the close dependence of the territorial sea upon the land domain. It is the land which confers upon the coastal state a right to the waters of its coast. It follows that while such a state must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast…94 Another fundamental consideration, of particular importance in this case, is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them. The real question raised of the choice of base-lines is in effect whether certain areas lying within these lines are sufficiently
91 ICJ – The Fisheries Case, p. 33. 92 Tullio Scovazzi, “The Establishment…”, p. 451. 93 ICJ – The Fisheries Case, p. 128 (emphasis added), also found in Tullio Scovazzi, “The Establishment…”, p. 451. 94 ICJ – The Fisheries Case, p. 133 (emphasis added), also found in Tullio Scovazzi, “The Establishment…”, p. 451.
30
closely linked to the land domain to be subject to the regime of internal waters…95 Finally, there is one consideration not to be overlooked, the scope of which extends beyond purely geographical factors: that of certain economic interests peculiar to a region, the reality of which are clearly evidenced by long usage.96
The main purpose of a straight baseline system is to reduce the complexity of
the borders of a territorial sea, thereby also securing national interests in waters
closely linked to the land domain. As seen in the northern part of Norway (Map
5)97, the coast does consist of numerous fjords, minor indentations and islands,
islets, rocks and other insular features.
All the conditions mentioned in Article 7 were actually produced from
the Norwegian coast so that Norway could legitimately deviate from the
normal baseline rule. From this can be derived the general rule that when
geographical circumstances make the low-water mark principle inapplicable by
producing a complex territorial sea, straight baselines are needed. However, the
geography of the Norwegian coastline is exceptional, and this is a problem
when interpreting the Fisheries Case. The International Law Commission
doubted whether a rule applicable to the special configuration of the
Norwegian coastline could be elevated to the status of a general rule.98
Nevertheless, it was included in UNCLOS. Whether the Fisheries Case ruling
95 Ibid. 96Ibid. 97 Corel Draw Map. 98 ILC volume I, Summary records of the fourth session, section 36, p. 172.
Map 5 – Northern Coastline of Norway
31
was meant by the ICJ to form a system of straight baselines applicable to coasts
other than Norway is an interesting question. The fact that the straight baseline
regime was included in the 1958 Convention indicates that there was a general
need for a system. The US Department of State, in its proposed guidelines for
straight baselines from 1987, supports this view: Although the decision [the Fisheries Case] influenced the formulation of the Territorial Sea Convention (Article 4) [the 1958 Convention], the case can only be of limited assistance. Given the extraordinary nature of the Norwegian coastline—both the frequency of the fjords that penetrate deep into the land and the proliferation of offshore islands—one can assume that Article 4 of the Territorial Sea Convention was formulated with the expectation that less extreme coastlines could fulfil its criteria.99
Nevertheless, both the US Department of State and some independent scholars
have often used the text of the Convention to reject straight baselines drawn
elsewhere, thus opting for a strict interpretation of UNCLOS on this point:
States that do not resemble Norway have no right to straight baselines.
However, this can certainly not be correct, as other complex territorial seas also
have a general need for simplicity. This is the core of the interpretation of the
straight baseline regime. Article 7 is more a positive description of where it
might be possible to utilise straight baselines rather than a bar, strictly ignoring
all coastlines that do not resemble that of Norway.
The following chapters will look at legal sources for the straight baseline
regime. Special attention will be paid to state practice in the South China Sea
region. This should give the necessary background for discussing what could
be seen as a legitimate application of straight baselines.
The baselines of Vietnam will be treated in two relations. First the
Vietnamese legislation is a part of regional and global state practice when
interpreting Article 7, and second, will Vietnam be the subject when applying
the rule of law produced by the interpretation process. This will be done by
first conducting a thorough investigation under the various chapters before
presenting some conclusive comments on the whole baseline system of
99 US Department of State, Developing Standard Guidelines for Evaluating Straight Baselines. Limits in the Seas, number 106 (31 August 1987) (Hereafter US Dep. "Developing Standard…”), p. 6.
32
Vietnam in Chapter IV, paragraph 6. However, the thesis will not conduct a
comprehensive analysis of all baselines in the world, but merely show
examples from state practice that possibly are deviating from an interpretation
of Article 7. A definitve conclusion on how to interpret the baseline regime will
therefore not be made, but the thesis will try to show if there are, and possibly
to what degree, subsequent state practice from all over the world are deviating
from a proper legal interpretation of UNCLOS.
7. General Definitions
Before proceeding with the analysis of the straight baseline regime, two legal
definitions should be clarified: those of “coastline” and “locality”. When using
the straight baseline method one has to demarcate the locality where it may be
applied in accordance with UNCLOS Article 7. Then one must define the areas
that the baseline should be parallel to: the coastline. Consequently, it is
necessary to find suitable definitions of “coastline” and “locality” before
proceeding further. The definitions must relate to UNCLOS Article 7 (1): In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the territorial sea is measured.
7.1. “Coastline”
In a discussion of whether a coastline has special geographical features, it is
necessary that we define the section of the coast that is to be analysed. The first
question is whether only the mainland should be included, or if islands situated
close to the terra firma100 should be seen as a part of the coastline. The answer
to this question will influence the outcome of the preliminary tests, so the
definition of “coastline” has a major impact on where the boundaries can be
drawn.101
100 Terra firma is a mainland or continent, distinct from an island, LESLEY BROWN (ED.), THE NEW SHORTER OXFORD ENGLISH DICTIONARY – ON HISTORICAL PRINCIPLES (Oxford: Clarendon Press) (1993) (Hereafter LESLEY BROWN (ED.), “The New…”), p. 3256. 101 MICHAEL W. REISMAN, AND GAYL S. WESTERMAN, STRAIGHT BASELINES IN MARITIME BOUNDARY DELIMITATION (New York: St. Martin’s Press) (1982) (Hereafter REISMAN AND WESTERMAN, “Straight Baselines…”), p. 79.
33
According to Black’s Law Dictionary, a “coast” is the edge or margin of
a country being adjacent to the sea.102 In American and British jurisprudence,
the coast is understood as including small islands and reefs naturally connected
to the adjacent land and rising above the water. If islands are incorporated into
the “coastline” definition, some of the Vietnamese islands, for example, may
form an integrated part of Vietnam's coastline, thereby making the preliminary
tests easier to fulfil than if the coastline only includes the mainland. With
support in English and American jurisprudence, a textual interpretation
supports a solution where small islands close to the mainland are included in
the term “coast”.
In a contextual setting, the Convention text may give us some guidance,
as Article 7 states that there must be a “fringe of islands along the coast”. I
refer to the Vienna Convention on the Law of Treaties of 23 May 1969
(hereafter the Vienna Convention) Article 31 (1),103 the general rule of
interpretation. How could there exist a fringe of islands in a coast’s immediate
vicinity if islands are a part of the coastline? If islands were to be included in
the coast, the Convention text would read, “where the coast consists of a fringe
of islands”. This supports a strict interpretation that does not include islands in
the definition. A solution including islands in the “coastline” definition might
result in a circular argument. A contextual interpretation thus supports that
“coastline” should only constitute the terra firma.
According to the Vienna Convention Article 31 (2)104 one should take
the purpose into consideration when interpreting treaties. The meaning is not
that Article 7 should result in areas, previously considered the high seas,
102 HENRY CAMPBELL BLACK, BLACK’S LAW DICTIONARY (Sixth Edition. St. Paul: West Publishing) (1990) (Hereafter HENRY CAMPBELL BLACK, “Black’s Law…”), p. 256. 103 Geneva Convention Article 31, General rule of interpretation: (1) A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 104 Geneva Convention Article 31, General rule of interpretation: (2) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
34
becoming internal waters.105 A textual interpretation would situate the edge of
the “coast” further seawards, making it possible to draw straight baselines
further out; pushing maritime zones seaward and also producing larger areas as
internal waters. It is therefore in the coastal state’s interest, with regard to
increasing their area of maritime jurisdiction, to argue that the coastline should
not only comprise the mainland but also islands close to the coast. An
additional effect of such a regime would be the easier fulfilment of the “fringe
of islands”-criteria, the “immediate vicinity” criterion and the requirement of
internal character of the enclosed waters, thereby, of course, also enlarging the
other maritime zones. By not including islands in the coastline definition it
might be more difficult to draw excessive claims based on Article 7, thereby
preventing abus de droit of the baseline system. This gives due cause to
support a strict interpretation where “coastline” only comprises the terra firma.
A solution that includes islands in the definition of “coastline” would
lead to some demarcation problems. How close to the mainland must an island
be situated in order to be a part of the coastline? It would certainly be easier to
demarcate the coast if islands were not included. In addition, to avoid circular
argument we would have to distinguish between islands that are part of a coast
and islands along the coast. Hence practicality supports an interpretation where
“coastline” only comprises the terra firma. These questions seem so intricate
that it is probably preferable to exclude all islands from the definition of the
coast.
For reasons of practicality, and the obvious need for logical provisions
without circular arguments, I conclude that UNCLOS Article 7 should be
interpreted strictly to comprise only the terra firma, under the term “coastline”.
7.2. “Locality”
To establish the initial frame of reference when analysing the coastline one
must ask what is meant by “in localities”. In international law there is no
105 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 78.
35
generally accepted definition of “localities”.106 A definition of “locality”,
however, is essential for the straight baseline regime (reference is made to
Article 7 (1)).
Textually, “locality” can be defined as an arbitrarily defined area in any
part of space, with reference to one or more geographical positions and which
is seen in relation to a wider area.107 This implies that “locality” is used to
indicate a particular geographical segment. This is emphasised in the
preliminary works for the 1958 Convention. The use of the term “locality”
emphasises the fact that a country may draw straight baselines along relevant
parts of its coast, and the state does not need to demonstrate that the entire
coast is indented or fringed with islands.108 Vietnam can therefore apply the
straight baseline system even if only some parts of its coastline fulfil the
requirements of Article 7. This is supported by the Fisheries Case where it was
emphasised that the coastal state may adapt its delimitation to practical needs
and local requirements within certain limits.109 This principle, however, gives
support for taking the baseline segments drawn under national law as a point of
departure when evaluating the legitimacy of baselines. Geographical markers
must identify a geographical segment. Accordingly, if a coastal area has a
diversified geographical configuration it may be properly divided into a
number of localities.
By explicitly stating “localities” in the plural, the drafters of Article 7
secured that the coastal state has to fulfil at least one of the preliminary tests for
each locality where it desires to draw straight baselines. It is not sufficient to
show that one part of the coast fulfils Article 7 and then draw a straight
baseline along the identified coast.110 As has been suggested by the US
Department of State, there is good reason to utilise a definition that pays due
106 US Dep. “Developing…”, p. 11. 107 HENRY CAMPBELL BLACK, “Black’s Law…”, p. 939. 108 Summary Report, p. 62. 109 ICJ – The Fisheries Case, p. 127. 110 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 79.
36
regard to a shared set of geographical characteristics that justify treating the
complex coastal area differently from other parts of the coast.111
The general principle is that the low-water mark of the coast is the
proper baseline (UNCLOS Article 5). Coastal states cannot utilise straight
baselines on parts of their coast that do not meet the legal provisions for the
utilisation of straight baselines, and should also not be allowed to do this by
subsuming parts of the coast where straight baselines are not warranted under
parts where they are warranted under a wide definition of “locality”. If
complex coastal areas identified in national law are intersected by smooth,
“normal” coastlines, it may be advisable to divide the coast into a number of
localities. These areas would then conform to a textual interpretation of
“locality”.
These considerations lead to the conclusion that coastal states can draw
straight baselines only in areas where they are truly justified.112 Thus localities
must be clearly defined in relation to geographical positions, and chunks of
smooth coastline cannot be submitted under a section of the coast with a more
complex pattern. However, it does not seem possible to produce any general
definition of the term “locality” that relates it to a scale of measures. Each
locality should be individually defined to prevent abus de droit.
The following chapters will first discuss the preliminary tests of
(Chapter II) “deeply indented and cut into” and (Chapter III) “fringe of islands
in the coast’s immediate vicinity” before discussing (Chapter IV) “appropriate
basepoints” and presenting the conclusion (Chapter V).
111 US Dep. “Developing…”, p. 12. 112 Ibid.
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Chapter II
Deeply Indented and Cut Into
1. The Preliminary Geographical Tests
The legitimacy of the Vietnamese baselines and the status of the other baselines
of the South China Sea are a question of geographical configuration. The
decisive juridical problem when a state is about to draw straight baselines is
whether the geographical configuration of the part of the coast meets that of the
coastal description found in one of the preliminary tests in Article 7 (1). This
chapter will deal with the first test, of whether the coastline is “deeply indented
and cut into”. The condition of “a fringe of islands along the coast in its
immediate vicinity”, the second test, will be discussed in chapter III.
2. Deeply Indented and Cut Into
The question of “deep indentations” has title in Article 7 (1). The article
developed from the Fisheries Case into Article 4 (1) of the 1958 Convention. In
the 1982 Convention it was incorporated unchanged into Article 7. The
longstanding rule of straight baselines should therefore be regarded as
customary international law.1 The main question in this discussion is one of
interpretation. This question will be addressed below.
UNCLOS Article 7 reads:
In localities where the coastline is deeply indented and cut into, […] the method of straight baselines […] may be employed in drawing the baseline from which the territorial sea is measured.
The phrase “deeply indented and cut into” presents two basic problems of
interpretation. First, what is required for a coastline to be “deeply indented”?
Second, what is the proper interpretation of “cut into”? It should also be noted
that the Convention requires both of these criteria to be fulfilled. Otherwise it
would have used the word “or” rather than the conjunction “and”.
1 Reference is made to chapter I, paragraph 5.
38
2.1. Deeply Indented
The question is what geographical configuration a coast should consist of to be
regarded as “deeply indented”. This question will be answered by looking at
(1) the regular meaning of “deeply indented”, (2) how “deeply indented”
should be understood in a contextual relation to the baseline regime, (3)
interpretation of “cut into”, and, (4) how the purpose of the straight baseline
regime might affect our understanding of the “deeply indented and cut into”
criterion. Finally, the section looks at subsequent state practice as evidence of
states’ interpretation of the Convention.
2.1.1. Textual Interpretation of “Deeply Indented”
According to the Vienna Convention, Article 31 (1), a treaty should be
interpreted in accordance with the ordinary meaning of the Convention terms.2
What is a legal, sustainable interpretation of the term “deeply indented”?
An “indentation” can be understood as a deep recess in a coastline.3 This
implies that the coastal configuration should be severely uneven, not only
having minor curvatures of the coast but distinct breaks in the coastline.
“Deeply” can be understood as “extremely”, or “to a great depth”.4 Thus it is
the degree of penetration that is crucial. The term “deeply indented” indicates
that the curvature of the coast should penetrate the coastline to more than just
an appreciable extent.
2.1.2 Contextual Interpretation
To what degree, then, should an indentation penetrate the coastline in order to
be deep? The Vienna Convention, Article 31 (1), gives title to conduct a
contextual interpretation. Hence, analogies with other regimes with similar
purposes and with clear mathematical tests can give guidance to the
2 Vienna Convention Article 31 (1): A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 3 LESLEY BROWN (ED.), “The New…”, p. 1346. 4 LESLEY BROWN (ED.). “The New…”, p. 614.
39
interpretation of Article 7. Such a regime is found in UNCLOS Article 10,
regulating the regime of bays.5 According to Article 10, a juridical bay is a
“well marked indentation”.6 As emphasised earlier, the rules of the straight
baseline regime are exceptions from the general rules for drawing baselines.
Normal baselines are, according to Article 5, drawn along the low-water mark
of the coast, and, according to Article 10, across bays following their closing
lines. A closing line is drawn from the beginnings of the indentation, on either
side. To draw straight baselines along coasts that are deeply indented is an
alternative to just using closing lines for each indentation. The geographical
configuration of a deep indentation and a bay are quite similar and a deep
indentation may therefore be analysed on the basis of the regime of bays.
It can be argued, based on a textual understanding of “deeply”, that the
word “deep” is meant for an object with a greater depth than an object referred
to as just “well-marked”, as in the bay regime. A “deep indentation”, therefore,
should penetrate the land more than a “well-marked indentation”.7 To qualify
as a bay the indentation must pass a semi-circle test. A semi-circle test is
passed when the indentation has a water area larger than a semi-circle with a
diameter of the same length as that of the closing line (see figure II below).8
Since a bay is defined as a “well-marked indentation”, a deep indentation must
at least pass the same test. Scovazzi, who has noted this point as significant,
supports this interpretation.9 A logical interpretation suggests that “deeply
indented” sets a stricter geographical standard than that for a juridical bay.10 It
seems difficult, however, to define how much stricter, so perhaps the same
5 UNITED NATIONS, ”Baselines:…”, section 36, p. 18. 6 UNCLOS Article 10 (2): For the purposes of this Convention, a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. See PLATZÖDER. 7 According to Article 10, a bay is defined as a “well-marked indentation”, while indentations not fulfilling the semi-circle test should be regarded only as mere curvatures of the coast. 8 UNCLOS Article 10 (2) defines a juridical bay. The conditions are that the indentation should be as large as or larger than that of the semi-circle whose diameter is a line drawn across the mouth of that indentation. 9 Tullio Scovazzi. Le Line di Base Rette. IN T. SCOVAZZI (ED)., LA LINEA DI BASE DEL MARE
TERRITORIALE, (1986), p. 106. 10 ROACH AND SMITH, “United States…”, p. 62, supra note 16.
40
criterion as is used for bays (the semi-circle test) could be sufficient for “deeply
indented”.
Figure II – Baseline Delimitations – Semi-circle Test11
Nevertheless, the problem of how deep an indentation should be in order to
warrant a straight baseline was also evident in the majority vote in the Fisheries
Case. All fjords along the Norwegian coast were deeper than 1:2,12 which
supports a solution where at least the semi-circle test would be fulfilled in order
to make the coastline meet a characterisation of “deeply indented”. However,
the Norwegian coastline is extraordinary,13 and can be regarded as an obvious
example of where to apply the straight baseline regime rather than a model for
how strictly the rules must be applied. If the Norwegian coast were to be
considered as a model, this would preclude most other states from using the
straight baseline regime. This decreases the weight of the interpretations of the
11 Also found in LEO J. BOUCHEZ, THE REGIME OF BAYS IN INTERNATIONAL LAW (Leiden : Sijthoff) (1964). 12 This was referred to by both Prescott and Beazley in J. R.V. PRESCOTT, STRAIGHT BASELINES: THEORY AND PRACTISE 4 (Monograph) (1985) (Hereafter J. R. V. PRESCOTT, “Straight Baselines..”), p. 8 and in Beazley. Maritime Limits and Baselines: A Guide to Their Delimitation, The Hydrographic Society, 2nd. (ed), Spec. Pub. Number 2 (1978) (Hereafter Beazley, “Maritime Limits…”), p 4. 13 For a comparative analysis of the Fisheries Case and the straight baseline regime, please refer to chapter I, section 6.2.
41
Fisheries Case. The majority vote discussion will therefore only have limited
significance in the analysis of the depth of an indentation.14
It is concluded, preliminarily, that the Convention text requires at least a
semi-circle test to be fulfilled in order for the “deeply indented” criterion to be
met.
2.2. Cut Into
UNCLOS Article 7 (1) states that “[…] where the coastline is deeply indented
and cut into […] the method of straight baselines […] may be employed […]”.
What geographical configuration should a coast consist of in order to fulfil the
requirement of being “cut into”? The following paragraphs will discuss (1) the
textual meaning of “cut into”, (2) a contextual interpretation, before (3) the
object and purpose of the straight baseline regime is used to look at both the
“deeply indented” and the “cut into” requirements.
2.2.1. Textual Interpretation: “Cut Into” Equals “Several”
A principle for interpretation is to find the ordinary meaning of the terms in
question.15 The expression “cut into” is not known for its legal precision.16 The
term “cut” is understood in ordinary English as “a long narrow opening in a
surface”.17 “Cut into” can be seen as an expression emphasising that there must
be some degree of penetration into the coastline. The penetration’s depth has
already been discussed, and, prima facie, it seems that “cut into” introduces a
plurality requirement; merely meaning that there must be more than one
indentation present to make the coastline appear to be cut into. Westerman and
Reisman support this interpretation18 and emphasise that the interpretation is
confirmed by the fact that the expression is lifted directly from the Fisheries
Case description of the coast of Finnmark. Hence, one can claim that for a
14 US Dep. “Developing…”, p. 6. 15 Vienna Convention Article 31 “General Rule of Interpretation”. 16 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 82. 17 LESLEY BROWN (ED.), “The New…”, pp. 577-578 18 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 82.
42
coastline to appear to be cut into, more than one penetration into the coast is
needed.
Nevertheless, the UN Office of Ocean Affairs and the Law of the Sea
has established another relevant interpretation of “cut into”, based on a
subsequent understanding among the parties.19 This understanding emphasises
that it is generally agreed in international law that there must be several
indentations present to fulfil the cut into and indented requirement.20 We have
now left the Convention text, and the latter understanding of “several” has less
weight than a textual interpretation of the Convention itself. However, due to
the vagueness of the Convention text we may rely on subsidiary sources. If we
interpret what is meant by “several”, it is clear that in ordinary English
“several” is defined as “more than two, but not many”, and in terms of law it is
defined as “more than one”.21 The United States, however, claims that it might
be argued that a coastline must have at least three indentations in any given
locality in order to be “indented and cut into”.22 As shown above, the term
“several” can be understood in two ways. Because of this juxtaposed
understanding of the term “several”, it should not have any significant weight
in the interpretation process. Therefore, the United States’ claim of Article 7
(1) supports a textual interpretation based on the common understanding, but is
not supported in terms of law.
According to the Vienna Convention, Article 32 (a), one may, when the
meaning of the provision is ambiguous, use the circumstances of its conclusion
to determine the proper interpretation of the provision in question.23
Westerman and Reisman believe that a strict interpretation of “cut into” and
19 Vienna Convention Article 31 (3a): There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; 20 UNITED NATIONS, “Baselines:…”, number 36, p. 18 (my italics). 21 LESLEY BROWN (ED.), “The New…”, p. 2799. 22 US Dep. “Developing…”, p. 5. 23 Vienna Convention, Article 32: Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 […] leaves the meaning ambiguous or obscure.
43
“several” would prevent abuse of the straight baseline regime.24 By suggesting
“a number”, Westerman and Reisman could be interpreted to mean more than
two. Conclusively, they argue that a deeply indented and cut into coastal
segment must have three indentations to make a straight baseline legitimate.
This will prevent, they claim, abus de droit by limiting the possibility for
coastal states to use straight baselines, thereby pushing national jurisdiction
outwards in the sea.
Based on the textual interpretation it is probable that the vague language
can mean “more than one or two indentations”. This interpretation will only
have limited weight in the following interpretation due to lack of sufficient
clarity and indirect connection with the Convention text.
2.2.2. Contextual Interpretation – The Juridical Bay Regimes Impact on
the “Cut Into” Criterion
On the basis of a contextual interpretation25 of the “deeply indented and cut
into” requirement and the juridical bay regime, according to Article 10, it is
evident that, presupposing a closing line shorter than 24 nautical miles, the
juridical bay regime will apply when there is one indentation present. Using the
straight baseline system in this case would strip Article 10 of all relevance.
There is no general agreement on the maximum length of a straight baseline in
international law. The reason for limiting the use of straight baselines to single
bays is that otherwise the coastal state could get around the 24 nautical mile
limit by applying a straight baseline.26 There must evidently be more than one
indentation present. Roach supports this and argues that “several” in the UN
Group of Experts’ statement must be understood as at least three indentations.
Beazley and Prescott also support Roach’s argument that three and not just two
are needed. 27
24 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 82. 25 See the Vienna Convention Article 3 (3): “there should be taken into account, together with context…” 26 UNCLOS Article 10 (4): If the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. See PLATZÖDER. 27 J. R. V. PRESCOTT, “Straight Baselines..”, p. 4.
44
“Deeply indented and cut into” cannot refer to one or two isolated indentations, however large they may be, because if it did there would be no need for Article 7 [means Article 10 in UNCLOS]…or its 24 mile limit on closing lines.28
Support can be found for demanding three indentations in the normal textual
interpretation of “several”. Thus we should conclude that there must be at least
three indentations present for a straight baseline to be legitimate. It is generally
agreed, however, that these indentations must individually satisfy the
conditions establishing a juridical bay, though there may be other less marked
indentations associated with them.29
A contextual interpretation supports a solution where there must be at
least three indentations present meeting the semi-circle test to fulfil the “cut
into” criterion.
2.3. The Object and Purpose of Article 7
The Vienna Convention, Article 31 (1), gives title to interpret the 1982
Convention in the light of its purpose. The purpose of the straight baseline
regime is that straight baselines can be utilised when the closing-lines of bays,
rivers and estuaries produce a complex territorial sea border. It is, however, not
the purpose to increase the area of national jurisdiction unduly.30 The interest
on which this objective is based is the right to free navigation. There are,
however, interests also advocating a more liberal system of straight baselines.
The national interests of security, control over maritime resources, fiscal and
environmental crime, and governing sea traffic, are based on the principle of
state sovereignty. So can the coastal state draw the baselines more or less as
they want? The task of drawing baselines is clearly a national responsibility,
and the interaction between these two interests will be discussed in the
following paragraphs.
28 Beazley, “Maritime Limits…”, p. 8. 29 UNITED NATIONS, “Baselines:…”, paragraph 36, p. 18. 30 UNITED NATIONS, “Baselines:…”, paragraph 39, p. 21.
45
2.3.1. Freedom of Navigation
When arguing that territorial seas should not be complex in nature, the
intention was not, in either the Fisheries Case or in UNCLOS, to allow coastal
states to draw straight baselines wherever they desired. Any baseline that
considerably reduces the size of freely navigable seas is inappropriate in view
of the purpose of Article 7 (1). It should be noted that Article 8 (2) enforces the
right to free navigation where the establishment of straight baselines encloses
areas where free navigation was formerly legitimate.31 This is founded on the
long-standing principle of freedom of navigation. One might therefore claim
that where straight baselines do not considerably reduce freely navigable seas,
the purpose of Article 7 may support utilisation of straight baselines, if this
reduces the complexity of the coastline. The problem is whether the semi-circle
test and the number of indentations required can be departed from if the
purpose of Article 7 is fulfilled. This is uncertain in international law today.
State practice is relevant to this question, and will be discussed below.
2.4. The General Principle of National Sovereignty
There are many countries drawing straight baselines without having the
geographical complexity as that of Norway. Could straight baselines be
legitimate even if the indentations do not pass a semi-circle test, where there
are not three indentations and thereby not constituting a complex coastline?
Should we then abandon a strict interpretation of the 1982 Convention?
The Vienna Convention, Article 31 (3c), and the ICJ Statutes, Article 38
(1d),32 give title for the Court’s relevance in interpreting Article 7 (1).33 In the
Fisheries Case judge Alvarez pointed out, in his own opinion, that in regard to
the great variety of geographical and economic conditions of states it is not
31 UNCLOS Article 8 (2): Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. See PLATZÖDER. 32 ICJ statutes Article 38: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply; […] judicial decisions and the teachings of highly qualified publicists of the various nations.
46
possible to lay down uniform rules applicable to all.34 This general
consideration should lead to the conclusion that each state must be given a
certain latitude for determining the extent of its territorial sea in conformity
with the Convention text and the purpose of the straight baseline regime,
provided that it does so in a reasonable manner.
The Fisheries Case formulated the general principles of responsibility
for drawing baselines. By stressing the national responsibility, it made clear
that an enormous amount of subjective appreciation must be undertaken by
states themselves.35 Even if the drawing of baselines has always had an
international aspect, it was emphasised that it was only the coastal state that
was competent to undertake the task of drawing baselines.36 This supports
Judge Alvarez’ principle of national self-determination, and that strictly
mathematical criteria cannot be established.
Since national responsibility for drawing baselines is so strongly
emphasised, the Fisheries Case may be interpreted as giving support to a liberal
interpretation of the “deeply indented” criterion, thereby allowing an individual
analysis of each coastline with regard to its complexity.
To sum up, it can be stressed that the Convention text sets certain
requirements for the coastal configuration in a straight baseline area. These
requirements are based and supported by the long-standing principle of
freedom of navigation. On the other hand, states have national interests in
increasing their maritime areas, and having a zone with complete jurisdiction.
Since the drawing of baselines is clearly a national responsibility, states will
tend to draw straight baselines. These baselines might be drawn where the
coastal configuration does not require such a system, and they might be drawn
too far from the mainland. These contradicting interests will become evident,
as state practice of selected states subsequent to the Fisheries Case will now be
33 Vienna Convention Article 31 (3c): There shall be taken into account, together with the context […] any relevant rules of international law applicable in the relations between the parties. 34 ICJ – The Fisheries Case, p. 38. 35 ILC volume I, at 54, p. 199. 36 ICJ – The Fisheries Case, p. 132.
47
looked into to see if they support a general trend that can give an indication of
allowing a more liberal regime.
2.5. Subsequent State Practice
According to the Vienna Convention, any subsequent practice in applying the
1982 Convention that establishes an agreement of parties regarding its
interpretation, should be taken into account.37 If one has a judicial source of
considerable weight, one might find that it has influence on the interpretation
of the 1982 Convention, which now is close to universal acceptance. Thus,
strict requirements must be set for appliance of state practice when interpreting
the straight baseline regime. Even if it is not possible to claim opinio juris,
which is necessary for evidence of customary international law, it can probably
be claimed that there must be a general consistency demonstrated by states for
this practice to achieve substantial weight. However, in addition to general
custom, international jurisprudence has endorsed the existence of local or
regional customary rules, operative inside a geographic area. In such an area, it
would not be necessary to demonstrate that states world-wide were adopting
the practice, but merely states in that particular area. The following paragraphs
will use the South China Sea region in particular as an example, discussing the
baselines of China and Taiwan. Hence, one might be able to find a trend
supporting a basis for a regional regime, a question that will be analysed in
chapter V.
2.5.1. The South China Sea Region
In the following paragraphs, the state practice of China and Taiwan will be
discussed to see how these countries interpret UNCLOS Article 7. Thereafter,
Costa Rica, Iran, Colombia and Egypt will be analysed in “State Practice
Outside the Region”.
37 Vienna Convention Article 31 (3b).
48
2.5.1.1. China
An example of a locality where the semi-circle test is not met is provided in
Map 6 (below) where we can identify a curvature of the Chinese southern
coastline marked as “A”. Curvature “A” does not meet the semi-circle test. The
straight baseline runs south-southeast. The distance to the coast of the
Philippines is approximately 350 nautical miles38, which means that legitimate
EEZ claims of the two countries will overlap one another.
This baseline segment (84.6 nautical miles long39) is therefore relevant and
important to the delimitation of maritime zones between China and the
Philippines.40 It stretches from the islet of Zhentouyan to basepoint Shibeishan
Jiao on the mainland.41 There are three indentations present, in which only one
may pass the semi-circle test (see Map 6).42 These indentations are marked as
Map 6 – Southern Coast of China43
“A”, “B” and “C”. Since the semi-circle test is not passed for circle A, a textual
interpretation will not support the utilisation of a straight baseline. Is this
baseline an example of abus de droit by the PRC government, or is a less strict
38 Microsoft Measuring Tool. 39 US Department of State, Straight Baseline Claim: China. Limits in the Seas, number 117 (9 July 1996) (Hereafter US Dep. “Straight Baseline Claim: China.”), p. 15 (Annex 3, “Straight baselines Segments Lengths and Reference Charts). 40 A possible Taiwanese claim overlapping those of China and the Philippines is not taken into the equation. 41 Ibid. 42 Indentation C (reference is made to Map 6) might fulfil the semi-circle test. The question is where the closing line of the semi-circle should be drawn from. By utilising the largest circle it will not fulfil the test. This is because the most landward fjord is, after definition, an inland sea and may not be included in a juridical bay test. By using the smallest circle, the test will be fulfilled. Which points are used, is a national decision made after more specified criteria (unfortunately outside the scope of this thesis).
49
interpretation called for? One solution might be that the irregularities were
helped by applying bay closing lines instead of a straight baseline.
China has also drawn straight baselines around Hainan Island (see Map
7) by its declaration of 15 May 1996.44 The adjacent waters are the Gulf of
Tonkin and the northern part of the South China Sea. In the Gulf of Tonkin,
Vietnam is the other claimant. The legitimacy of the baselines of Hainan are
certainly important with regard to maritime delimitation in these waters. The
semi-circle test is not passed in these localities, except for one juridical bay just
east of Sanya. However, straight baselines have still been drawn. The United
States has argued against these baselines, protesting that:
Map 7 – Baselines of Hainan and Southern China45
Hainan Island has no fringing islands as only a few scattered islands are situated off the coast. Other than a few small juridical bays, the baseline, should be the low-water line. The straight baselines have minimal effect on the territorial sea limit.46
43 Corel Draw Map. 44 Basepoints 33-49 in Declaration of the Government of the Peoples Republic of China, On the Baseline of the Territorial Sea of the Peoples Republic of China, 15 May 1996, found in US Dep.“Straight Baseline Claim:China”, p. 9. 45 Component of US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER, CHINA’S CLAIMED
STRAIGHT BASELINES (Number 802493) (R02169) 6-96. 46 US Dep. “Straight Baseline Claim: China.”, p. 8.
50
While the coast of Hainan Island is relatively smooth (see Map 7), the question
of whether some of the indentations are “deep”, and how the indentations will
effect the territorial sea border, is still unclear. It is clear, however, that the
eastern coast does not fulfil the “deeply indented” criterion. The western coast
has minimal effect on maritime delineation,47 and could be an example of a
place where straight baselines are reasonable, even though the semi-circle test
is not passed. The decisive question is whether a straight baseline is necessary.
Map 7 also shows that a 12-nautical mile territorial sea will not produce a
complex navigational border. Hence, there is no point in using the straight
baseline system. On these grounds it is quite certain that the baselines of
Hainan Island are illegitimate.
Nevertheless, these baselines do not subjugate large parts of the sea as
Chinese internal waters. Consequently, the purpose of Article 7 is not directly
violated since the baselines do not subjugate large parts of the ocean as internal
waters. However, since none of the conditions of Article 7 are fulfilled, this can
be regarded as an example of state practice deviating from a textual
interpretation of Article 7 (1). Thus, if such regimes are considered reasonable
state practice, it would not be a modification of the Convention’s straight
baseline regime, but constitute entirely new principles.
The Chinese baselines on the west coast of Hainan, opposite Vietnam,
are not situated more than approximately 4 nautical miles off the coast. The
baselines’ impact on maritime delimitation between China and Vietnam is
therefore insignificant. It is not known if these baselines have been accepted as
a point of departure in the ongoing negotiations between China and Vietnam
over the delimitation of the Tonkin Gulf, especially since Vietnam has liberal
baselines of its own. Nevertheless, it is quite certain that the Chinese baselines
of Hainan are not acceptable in regard to the former interpretation of
international law in this chapter.
47 Ibid.
51
Outside the city of Zhanjiang (see Map 8 below), a Chinese baseline48 is
drawn between a rock outside the Chinese mainland and a small island off the
northeast coast of Hainan Island. This baseline is 107.8 nautical miles long,49
and the baseline segment cuts off the eastern approach to the Hainan Strait. The
baseline not only closes off an international straight,50 but also internalises
large
Map 8 – Chinese Coastline of Zhanjiang City51
areas formerly part of the high seas. The legitimacy of this baseline therefore
has a bearing on the impact of the freedom of navigation.
This area has more than four indentations that, prima facie, fulfil the
semi-circle test (see Map 8, “A” to “D”). Accordingly, the preliminary test is
fulfilled with regard to number and depth of the indentations. The question
with regard to the fulfilment of the object of Article 7 is whether a normal
baseline would have produced a complex territorial sea. If this question can be
48 Baseline drawn between basepoints 31 and 32 in Declaration of the Government of the Peoples Republic of China on the Baseline of the Territorial Sea of the Peoples Republic of China, 15 May 1996, found in US Dep.“Straight Baseline Claim:China”, p. 9. 49 Ibid., p. 15. 50 The rules for drawing straight baselines and implementing the internal waters regime is not valid when UNCLOS Article 36 is fulfilled. This Part does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics; in such routes, the other relevant Parts of this Convention, including the provisions regarding the freedoms of navigation and overflight, apply (UNCLOS Art. 36). See PLATZÖDER. 51 Component of US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER, CHINA’S CLAIMED
STRAIGHT BASELINES (Number 802493) (R02169) 6-96.
52
answered positively, straight baselines might be legitimate. Map 8 (small
window) shows that a normal baseline would not produce a problematic
complexity in the territorial sea. The baseline should, if the normal baseline
regime had been used, be drawn along the low-water mark of the coast.52
However, a conclusion at this point, with regard to the legitimacy of the
baseline, will not be drawn, since this issue will also be discussed in Chapter
IV, Appropriate Basepoints.
2.5.1.2. Taiwan
The Taiwanese government drew a system of straight baselines around Taiwan
in February 1999. Taiwan is situated so close to China and the Philippines, that
in reality all its possible claims to EEZs and continental shelves will overlap
with claims from these states. Illegitimate baselines will not be tolerated in a
delimitation process following the
median-line principle, except
perhaps if they are similarly
illegitimate on both sides. In this
situation countries tend to the low-
water mark of the coast as their
delimitation starting point. Thus it is
important to establish whether the
drawn baselines are in conformity
with international law (see Map 9) 53.
Since no islands are found, straight
baselines based upon the preliminary
test of having a “deeply indented and
cut into” coastline are found between
T9-T6, T1-T19, and T15- T13. These
baselines connect the islands situated along Taiwan’s western coast. However,
52 US Dep. “Straight Baseline Claim: China.”, p. 8. 53 Map scanned and edited by Dr. K. H. Wang, received by mail 5 March 1999.
Map 9 – Straight Baselines of Taiwan
53
as shown in Map 9, the coastline is quite smooth, hence there is no need for a
straight baseline system. The baseline between T7 and T6 encloses a mere
curvature of the coast, which is not deep enough to pass the semi-circle test.
Nevertheless, straight baselines can be identified between points T19 and T1 in
an area literally without indentations. T21-T1 also encloses a mere curvature of
the coast, which do fulfil with the semi-circle test. Conclusively, the Taiwanese
baselines identified here are not drawn in accordance with the requirements of
the preliminary test of a “deeply and cut-into coastline”.
2.5.2. State Practice Outside the South China Sea Region
2.5.2.1. Costa Rica
On 14 October 1988 the Costa Rican government issued a decree establishing
straight baselines along its Pacific coast.54 (See Map 10). The United States
objected to the drawing of these lines by stating:
While the Pacific coastline of Costa Rica contains two embayments, it is neither deeply indented and cut into, […] as those standards are employed and understood in international law…55
Has Costa Rica drawn baselines
that are not appropriate since the
semi-circle tests are not fulfilled,
or can we identify an exception
in international law allowing
straight baselines in localities
where judicial bays are not
present?
Map 10 – Baselines of Costa Rica56
54 Costa Rica’s decree number 18581-RE, of 14 October 1988, is found in US Department of State, Straight Baselines: Costa Rica. Limits in the Seas, number 111 (1990). 55 Diplomatic Note dated 18 December 1989, from the American Embassy, San José, telegram 15581, 18 December 1989, see also ROACH AND SMITH, “United States…”, footnote 9, p. 167.
54
2.5.2.2. Iran
Iran is a country with a complex coastline that does not fulfil the judicial bay
regime. It reaffirmed its 1973 straight baselines in 1993.57 Iran has drawn
straight baselines along its entire coast in the Persian Gulf and in the Gulf of
Oman, despite the fact that its coastline in the Persian Gulf is not deeply
indented but rather smooth. In the Gulf of Oman, however, the coastline is
more complex, but still
does not fulfil the semi-
circle test. The United
States objected to the
Iranian baselines in
199458, the existence of
which is evidence of
state practice
contradicting the
interpretation of the
Convention. (Map 11)59.
2.5.2.3. Colombia
State practice diverging from the rule that three
indentations are required can be found in Colombia.
The government of Colombia drew straight
baselines on both its Pacific and Caribbean coasts in
1984.60 (See Map 12)61. Reisman and Westerman
claim that Colombia has managed to carve out a few
56 Also found in ROACH AND SMITH, “United States…”, p. 139. 57 Iran Decree-Law of 21 July 1973 – English text in UNITED NATIONS, “ Baselines: National…” ,p. 194-195. 58 US Mission to the United Nations Diplomatic Note 3509/437, 11 January 1994, see also ROACH AND
SMITH, “United States…”, footnote 9, p. 167. 59 Also found in ROACH AND SMITH, “United States…”, p. 91. 60 The Colombian Presidential Decree number 1436 of 1984 may be found in UNITED NATIONS, OFFICE
FOR OCEAN AFFAIRS AND THE LAW OF THE SEA. BASELINES: NATIONAL LEGISLATION WITH
ILLUSTRATIVE MAPS (United Nations: New York) (1989) (Hereafter UNITED NATIONS, ”Baselines:”), p. 107-111. 61 Also found in REISMAN AND WESTERMAN, “Straight Baselines…” , p. 177.
Map 12 – Baselines of Colombia
Map 11 – Baselines of Iran
55
more miles of maritime territory than would have been obtained by two
juridical bays alone.62 In their view, Colombia has violated the purpose of the
straight baseline regime. The United States objected to the drawing of these
lines with the following statement:
Under review of the claimed Colombian straight baselines system, it is the view of the United States that Colombia has established straight baselines where the requisite limited geographic circumstances do not exist. In numerous instances straight baselines have been employed in areas in which the coastline is not sufficiently indented and cut into, […].63
2.5.2.4. Egypt
The question of equity related to the Convention
text and the purpose of Article 7 (1) is pushed to
extremes in the case of Egypt (see Map 13). Egypt
has drawn straight baselines that do not substantially
increase its territorial sea. They were drawn along
its entire coastline in the Mediterranean, the Gulf of
Aqaba and in the Red Sea in 1990.64 As Roach
argues, the Egyptian coastline is generally smooth
and gently undulated, and is neither “deeply Map 13 – Baselines of Egypyt65
indented and cut into” nor “fringed with islands in its immediate vicinity”.66
The United States objected to the Egyptian baselines in 1991, claiming that
they were not in conformity with international law.67 The grounds on which the
United States objected may, however, be questioned. Scovazzi emphasises that
the Egyptian baselines seem to be both moderate and unlawful at the same
time. Moderate because the lines do follow the general direction of the coast
and do not substantially shift the external limit of the Egyptian territorial sea
62 REISMAN AND WESTERMAN, “Straight Baselines…” , p. 147. 63 American Embassy, Bogota, Note number 500 dated 14 July 1988, see also ROACH AND SMITH, “United States…”, footnote 69, p. 84. 64 Presidential Decree number 27/90 of the Government of Egypt is reproduced in UN, LOS Bull. Number 16, December 1990, pp. 3-11. 65 Also found in ROACH AND SMITH, “United States…”, p. 88. 66 ROACH AND SMITH, “United States…”, p. 85. 67 American Embassy in Cairo, Note delivered 13 June 1991, State Department telegram 188615, 8 June 1991, see also ROACH AND SMITH, “United States…”, footnote 71, p. 89.
56
seawards. On the other hand, the lines are also unlawful since they are drawn in
a region where the indentations clearly do not fulfil the semi-circle test.68 Are
the Egyptian baselines inappropriate because the coastline is not deeply
indented? An overall evaluation will find that the baselines are formally
inappropriate. This is because the lines themselves smooth out the coastline
without internalising waters formerly part of the high seas. The Egyptian
baselines are evidence of state practice supporting a liberal interpretation of the
“deeply indented”-criterion, completely disregarding the semi-circle test.
However, when Egypt chose to disregard the semi-circle test, even
though it had very little to win from a liberal interpretation of the Convention
text, this may be interpreted as evidence of a general state practice that, in due
time, may become part of customary international law. Egypt should maybe not
meet such criticism as it only smoothes out the territorial sea border. It can
therefore be asked whether the new development of Article 7 is to legitimise
baselines that do not contradict the purpose of straight baselines.
2.5.3. Concluding Comments of Subsequent State Practice
A comprehensive evaluation of all deviating state practice will not be made
here. The examples above have just been presented in order to show that state
practice is often inconsistent with UNCLOS Article 7. It is therefore difficult to
decide exactly which interpretation should be accepted as coherent with
international law. One solution must be to give room for expert assessments. If
the Egyptian baselines, the baselines of Hainan and some of the Iranian
baselines and other baselines that do not contradict the purpose of article 7 are
excepted, this will undermine a textual interpretation of the provisions in the
Convention. So far, however, there does not seem to be a general trend in state
practice supporting a rejection of the need for a semi-circle test. Therefore, the
question cannot be considered as resolved. However, it does not seem
reasonable to conclude, at least not yet, that the “deeply indented” criterion
may be fulfilled without fulfilling the test. The conclusion is, so far, only that
68 Tullio Scovazzi. “The Establishment…”, p. 454.
57
state practice seems to be developing to setting aside this basic requirement in
Article 7.
Among the 70 or more states that apply the straight baseline system,
there are, as demonstrated in this thesis, many not meeting an interpretation of
UNCLOS Article 7. Therefore, it would be advisable to suggest a re-evaluation
of how states legitimately apply the preliminary test of “deeply indented and
cut into” coastlines.
2.6. Equity – De Lege Ferenda
After interpreting the treaty, its purpose, and state practice, there is clearly a
difference between the Convention provisions and state practice. It may be
claimed that abus de droit can also be prevented by making an individual
analysis of each baseline segment where emphasis is placed on breaches of the
purpose of Article 7 rather than the number of indentations. The advantage
with this proposal is its flexibility, allowing states to use straight baselines in a
reasonable manner. A “three deep indentations rule” can exclude some
complex coastlines from the straight baseline regime. Under such a regime, the
Hainan baselines and the Egyptian baselines could be legitimate.
The question of maritime delimitation should also be discussed under
the problem of how many indentations are needed to warrant a straight baseline
system. When deciding how strict the preliminary tests should be, one should
look at the consequences of previously drawn baselines for other rights with
title in the Law of the Sea and for delimitation processes. Such considerations
of equity will also give support to the allowance of baselines where there are
not three deep indentations present, if other considerations support the use of
straight baselines.
Such considerations can be made part of an overall evaluation of the
geographical circumstances of each coastal segment, and the degree of
difference in impact on maritime delimitation of a normal and straight baseline
system.
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2.7. Straight Baselines of Vietnam
The straight baseline drawn outside the southeastern coast of Vietnam will now
be discussed (see Map 14 below). This baseline may be highly significant for
the maritime zones between Vietnam and the Spratlys. The median line
between the Vietnamese coast and those of the Spratly islands, if some of them
are given a right to maritime zones, will be effected by the baselines along
Vietnam’s coast. Vietnam may
use its baselines as point of
departure in future
negotiations. The legitimacy of
these baselines is therefore of
some importance.
Map 14 shows two straight
baselines between A6 and A7,
and between A7 and A8. The
first baseline is 161.8 nautical
miles long, whereas the second
is only 14.8 nautical miles
long.69 The straight baselines
are facing east, with their
southern base point (A6) situated Map 14 – Vietnam’s South-Eastern Coastline70
74.2 nautical miles from the Vietnamese coastline. This pushes the Vietnamese
maritime zones considerably seawards. The United States objected to the
straight baseline system of Vietnam on 6 December 1982.71 The question is
whether this coastline is so irregular that a straight baseline is needed to delimit
the territorial sea. In the southern part of the map there are five indentations
that do not, prima facie, fulfil the semi-circle test. According to Article 10 they
are therefore only mere curvatures of the coast and thereby not deep enough to
69 US Dep. “Straight Baselines:…”, p. 6. 70 Corel Draw Map. 71 US Mission to the United Nations New York Note dated 6 December 1982, State Department telegram 334675, 1 December 1982, see also ROACH AND SMITH, “United States…”, footnote 13, p. 170.
59
justify a straight baseline system. North of the constructed “coastal
configuration line” there are four indentations present in baseline segment A6-
A7. These indentations do fulfil the semi-circle test, as the water-area exceeds
the semi-circles drawn across the mouth of the indentation, and their number of
four indicates that a straight baseline might be legitimate in that particular area.
Conclusively, a straight baseline can therefore be legitimate in the area north of
the constructed line.72
Further north, between basepoints A9 and A10 (see Map 15), Vietnam
has also drawn a straight baseline. But is this coastline “deeply indented and
cut into”? Even if there are some mere
curvatures of the coast, it is clear that
none of them fulfil the semi-circle test.
Based 14.1 nautical miles from the
coast, the baseline does not
particularly increase the territorial sea
compared to other parts of the
Vietnamese baseline system.
However, it does increase it to some
degree; therefore the object of Article
7 does not give due cause for utilising
a straight baseline. Thus, a straight
baseline based on the “deeply indented
and cut into” preliminary test cannot
be justified according to the above Map 15 – Vietnam’s Eastern Coastline73
interpretation. During the thesis it will also be investigated whether Vietnam, in
other areas of its baseline system, neglects UNCLOS provisions.
72 Due to the different coastal configuration on each side of the constructed ”coastal configuration line”, this baseline will also be discussed in relation to indentations coverage of the coast, reference is made to section 3, below. 73 Corel Draw Map.
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3. Indentations Coverage of the Coast – The Case of Eastern Vietnam
We have established that preliminary geographical tests must be fulfilled if the
coastal state is to apply the straight baseline system. The “deeply indented and
cut into” criterion is met when a deep indentation fulfils the semi-circle test and
at least three indentations are present. In this section I will discuss the problem
of the interpretation of “locality”.
The preliminary geographical test requires that several indentations must
cover a certain area of the coastline to legitimise utilisation of a straight
baseline system.74 If coastal states are left to arbitrarily define the localities
where they apply a straight baseline system, then they could, by defining the
locality wrongly, include coastlines that are smooth and with no indentations,
under a baseline made legitimate by an adjoining coastal segment. The US
Department of State, in an attempt of developing standard guidelines for
drawing baselines, therefore claims that the indentations must account for at
least 70 % of the coast in any baseline segment.75 The question to be answered
here is how much of a coastal segment must be covered by indentations to
sustain a legitimate application of a straight baseline system?
3.1. Textual Interpretation
The Convention text gives little guidance on this question beyond giving title
for a restriction of the coastal states’ possibility for utilising straight baselines.
By explicitly stating “localities” in the plural in Article 7, the drafters of the
Convention secured that coastal states have to fulfil all the conditions of one of
the preliminary tests of Article 7 in each locality where it desires to draw a
straight baseline. Thus, it is not sufficient to show that just one part of the coast
fulfils Article 7.76 An interpretation of Article 7 can therefore only emphasise
that there is a requirement for the indentations’ coverage of the coast, rather
than giving guidance on any mathematical principle amplifying this rule.
74 See discussion in definition of “locality”, Chapter I, section 7.2. 75 US Department of State, Developing Standard Guidelines for Evaluating Straight Baselines. Limits in the Seas, number 106 (31 August 1987) (Hereafter US Dep. “Developing…”) , p. 5 . 76 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 79.
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3.2. Contextual Interpretation
In a contextual setting, the criterion of “locality” combines the “deeply
indented and cut into” requirements, thereby describing where straight
baselines may be drawn lawfully.77 The purpose of the phrase “locality” is to
make clear that each baseline segment is related to a particular geographic
location.78 There is then a question of distance between the indentations. If two
areas with indentations have a long smooth coastline between them, two
straight baselines must be constructed rather than one encompassing both. Each
baseline will then connect to the watermark of the mainland, and a normal
baseline will be drawn along the smooth coastal segment. This area of law is
based upon the vague Convention text and state practice, and is therefore an
uncertain area of international law.
The US Department of State proposal of 70 % coverage was based on an
analysis of the Fisheries Case.79 It must be emphasised that the extraordinary
nature of the Norwegian coastline makes the Fisheries Case unsuitable for
constructing general rules. The Fisheries Case is therefore not a benchmark
case for straight baselines. Consequently, it is not likely that the United States’
proposal for a universal practice of 70 % will form the basis for customary
international law of the straight baseline regime.80
3.3. The Baselines of Eastern Vietnam
State practice offers a good illustration of how close one indentation should be
to another when straight baselines are being utilised.
If we look at the coastal configuration of the coast, it only consists of
mere curvatures up to the “Coastal Configuration Line” (see Map 16).81 We
can see that the coastline north of the “Coastal Configuration Line” has several
77 ROACH AND SMITH, “United States…”, p. 62, supra note 15. 78 Ibid., p. 63, supra note 17. 79 US Dep. “Developing…”, p. 5. 80 Reference is made to “The Fisheries Case and the Straight Baseline Regime”, Chapter I, section 6.2. 81 An indentation is a mere curvature of the coast when it does not fulfil the semi-circle test according to UNCLOS Article 10; that is, its water area must at least equal to that of a semi-circle whose diameter is the same as the length of the bay’s closing line. See PLATZÖDER.
62
indentations that pass the
semi-circle test, making it
legitimate to draw straight
baselines with title in the
deeply indented and cut into
criterion.82
Both criteria are met
here. However, one question
remains; is the choice of
“locality” legitimate?
The baseline segment
between basepoints A6 and
A8 (see Map 16) covers a
change in the coastal
configuration. As mentioned
above, the coast in the southern Map 16 – Easterm Coast of Vietnam83
part is quite even, featuring only mere curvatures, while in the north there is a
system of islands and indentations.84 Since the southern part of the locality is
quite smooth, one might ask if the indentations cover a sufficient part of the
coastline. By investigating the baseline segment we find that approximately ¾
of the baseline is without any indentations fulfilling the “deeply” condition.
Since only ¼ of the coastline is indented, and the rest of the coastline is quite
smooth, one might argue in support of a solution where the southern part of the
baseline is rejected. This is supported by the fact that in the southern part of the
baseline are internalising waters formerly part of the high seas. This leads to a
situation where the whole baseline must be rejected, since it does not fulfil the
requirement of the coastal segments geographical configuration.
82 The indentations present are above 8 nautical miles deep (Microsoft measuring tool), making them deeper than indentations in Northern Norway and in the area of Vancouver Island in Canada. It is therefore certain that the indentations are sufficiently deep to sustain a preliminary test. 83 Corel Draw Map. 84 Microsoft Measuring Tool.
63
While it is the coastal state’s responsibility to identify the various
coastal segments where straight baselines are drawn, the fact remains that the
coastal configuration in this segment is diverse. This calls for a separate
analysis of the northern sector starting from the “Coastal Configuration Line”.
Reference is made to Map 16, which shows that the indentations fulfil the
“deeply indented and cut into” criterion, and argues for a redefinition of the
locality, with indentations close to each other. These indentations are also
situated in an area with the same coastal configuration, thereby sustaining the
locality requirement.
As the example shows, the Vietnamese government has not identified
the locality in a reasonable manner. If Vietnam redefined this coastal segment,
it could draw a straight baseline in the northern sector, but not in the southern.
3.4. Conclusion
There cannot be established a precise percentage of how much of a coastal
segment should be covered by indentations in order to make a straight baseline
legitimate. The requirement is that the state should only draw baselines where
the geographical circumstances fulfil one of the preliminary tests. There is
good cause for concluding that the Vietnamese baseline drawn from basepoint
A6 to A7 is not legitimate, due to the length of the coastal segment without
deep indentations.
4. Conclusion on “Deeply Indented and Cut Into”
By (1) referring to state practice, including examples of radical interpretation of
the straight baseline system, (2) arguing that the importance of the Fisheries
Case and the Norwegian coastal configuration is reduced, and (3) pointing to
the general purpose of Article 7, which is to avoid complex territorial sea
borders, the thesis has reached a conclusion on drawing straight baselines that
differs from the traditional interpretations and a narrow reading of the text of
the Convention. In the above discussion we have argued that:
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1. The semi-circle test should be fulfilled to sustain a deep indentation.
However, de lege ferenda, the semi-circle test does not apply when there
are special circumstances present that do not contradict the purpose of
Article 7.
2. Normally a coastal segment must include at least three indentations in order
to warrant the drawing of a straight baseline. Nevertheless, there is good
reason for utilising straight baselines in localities where there are only two
indentations if the purpose of the straight baseline regime is fulfilled.
3. It cannot be established exactly how much coastal segments must be
covered by indentations in order for a straight baseline to be legitimate.
However, baselines cannot be used to connect two deeply indented
segments if there is a long, non-indented segment between them.
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Chapter III
Fringe of Islands
1. Introductory Comments
In localities where […] there is a fringe of islands along the coasts in its immediate vicinity, the method of straight baselines […] may be employed in drawing the baseline from which the territorial sea is measured.1
This chapter will discuss the preliminary test of “fringe of islands along the
coast in its immediate vicinity.” The question of when islands “fringe” a coast
and when they do not, cannot be easily answered. How far from the coast can a
fringe of islands be located while still remaining in its immediate vicinity?
Should this distance be measured between the coast and the closest or the
farthest island? How far can the islands be from each other and still constitute a
fringe? And, could a row of islands located in a direction perpendicular to the
coast, and not parallel to it, qualify as a fringe “along the coast”? These are the
main questions to be discussed in this chapter.
A general problem with Article 7 is that its provisions are vague. What
is the legal meaning of “immediate vicinity”, what is required for regarding a
group of islands as a “fringe”, and what is meant by “along the coast” are not
explained. This chapter discusses general principles where straight baselines
may be legitimate on the basis of this preliminary test. First, however, the
definition of islands used in the straight baseline regime will be analysed.
Second, a textual interpretation of “fringe” and “immediate” will be made,
according to the Vienna Convention Article 31, before analysing when islands
form either a unity with the mainland, or, when they constitute a screen of the
coast.
2. Islands in the Straight Baseline Regime
Adjacent to the coast of the South China Sea we find insular features in a
variety of sizes and with different geographical qualities. Before we can look
66
into their quantity and positions relative to the coast, we must establish a
definition of “island” in accordance with international law. The question is
whether it is necessary for an insular feature to have a certain size or material
quality in order to qualify as an “island”. Title for these questions is found in
UNCLOS, part VIII, Article 121, which regulates the regime of islands. The
questions above can be answered through an evaluation of whether it is
sufficient that the insular feature is above water at all times, according to
Article 121 (1), or if it is essential that the insular feature can also sustain
human habitation and economic life on its own, according to Article 121 (3).
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. […] 3. Rocks which cannot sustain human habitation or
economic life of their own shall have no exclusive economic zone or continental shelf.2
We shall soon return to 121 (1), but first focus on 121 (3). What do “human
habitation” and “economic life” mean? There are no legal sources, to date,
stating explicitly that Article 121 (3) is relevant for the delimitation of islands
in Article 7 (1)’s expression, “fringe of islands”. There is also little state
practice that can be used to assist in interpreting Article 121 (3).3 Therefore it
is difficult to interpret just what the conditions in Article 121 (3) mean for the
littoral states utilising the “fringe of islands” criterion. To use Article 121 (3) in
the straight baseline regime depends on a clarification of the legal expressions
of the paragraph. Such a classification has not yet been conducted in
international law.
A strict view is presented by Reisman and Westerman,4 who claim that
there was a change in international law when 121 (3) was introduced in the
1982 Convention. They interpret the definition of islands in accordance with
1 UNCLOS Article 7 (1), See PLATZÖDER. 2 UNCLOS Article 121 (1) and 121 (3), See PLATZÖDER. 3 As far as can be ascertained, only one of 74 or so states at present claiming an EEZ – Mexico – has incorporated provisions modelled on Article 121 (3) in its domestic legislation. On the other hand, a number of States have claimed EEZs around islands which could conceivably be regarded as uninhabitable rocks, e.g. France and Fiji. CHURCHILL AND LOWE, THE LAW OF THE SEA (Manchester: Manchester University Press) (1992) (Hereafter CHURCHILL AND LOWE, “The Law…”), p. 135. 4 REISMAN AND WESTERMAN, “Straight Baselines…”, pp. 84 – 85.
67
the Vienna Convention, taking account for the context when analysing the
Convention text. Some of the islands constituting a fringe of islands, they
claim, must be able to sustain human habitation and economic life on their own
in accordance with Article 121 (3). These authors see this interpretation as a
consequence of the introduction of Article 121 (3) in the Law of the Sea
Convention.
However, Article 121 (3) was introduced for purposes other than to
decide what constitutes a fringe of islands. 121 (3) is used to discriminate
between the features that only satisfy Article 121 (1), and are therefore only
entitled to a territorial sea of 12 nautical miles, and features that also satisfy
Article 121 (3), and therefore also have a right to continental shelves and EEZs.
A contextual interpretation of paragraphs 1 and 3 indicates that the legal
definition of an “island” is made in paragraph 1. Islands, which do not satisfy
the criteria defined in Article 121 (3), are still islands after Article 121 (1).
Article 121 (1) gives a clear definition of islands stating that all that is required
is that the island is surrounded by water and is above water at high tide. When
analysing whether a coast has a fringe of islands in its immediate vicinity, the
question of generating maritime zones is irrelevant. Consequently, application
of Article 121 (1) gives due support to the view that all insular features above
water at all times can be accounted for when analysing the fringe of island
criterion.
The provisions of Article 121 (3) in the 1982 Convention were
introduced into the negotiation text in 1974 and were thereafter included in all
successive drafts. Their introduction was a policy decision rather than a
reflection of existing customary law. This has attracted some hostile criticism.5
In further discussions of Article 121 (3) we may therefore find additional
5 On 7 July 1982, the Parliamentary under-secretary of State, Foreign and Commonwealth Office, wrote in a reply to a question in the House of Commons: The Law of the Sea Convention states that rocks which cannot sustain human habitation and economic life of their own shall have no exclusive economic zone or continental shelf. During the negotiations on the Convention, we and some other delegations sought unsuccessfully to delete this provision. In deciding our attitude to the continental shelf we shall be examining the implications of this and other provisions of the Convention for the United Kingdom interests, including mineral rights. H. C. Debs, 6th series, volume 27, Written answers, col. 130.
68
support for disregarding 121 (3) as a definition of a fringe of islands. When the
drafters of UNCLOS produced Article 121 (3) they saw that huge parts of the
world’s oceans would be subsumed under national continental shelves and
EEZs if the states could demand such zones around all islands. This fact can be
illustrated by calculating the area of sea that lies within 200 nautical miles of a
tiny island: 125,600 square nautical miles.6 This was not seen as an equitable
solution in view of the principle that the international community should be
granted resources from the high seas and their seabed to benefit mankind.7
Consequently, Article 121 (3) was developed to adapt the island definition to
the new situation with extensive maritime zones. But was the intention also to
change the rules of law concerning other regimes not directly related to the
EEZ or continental shelf? If the drafters of UNCLOS had wanted to change the
general definitions of islands and make the baseline regime applicable only to
islands that can sustain human habitation and economic life on their own, they
would presumably have said so explicitly in the Convention text. When Article
7 was adopted without any change, this indicates that the customary Article
121 (1) should be applicable to Article 7, but not the new 121 (3).
The two provisions do not regulate the same juridical circumstances.
Article 121 (1) regulates what an island is, while Article 121 (3) determines its
capability to generate maritime zones. To conclude, Article 121 (1) provides a
sufficient definition of islands for the purpose of the straight baseline regime.
Islands that are above water at high tide can constitute a fringe of islands,
regardless of whether they can sustain human habitation or an economic life on
their own.
6 J.R.V. PRESCOTT, THE MARITIME POLITICAL BOUNDARIES OF THE WORLD (London: Methuen) (1985) (Hereafter J.R.V. PRESCOTT, “The Maritime…”), p. 17. 7 UNCLOS Article 133 regulates the resources in question: […] “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the sea-bed, including polymetallic nodules […]. UNCLOS Article 136, “Common heritage of mankind.” The resources defined in Article 133 are granted mankind: The Area and its resources are the common heritage of mankind, See PLATZÖDER.
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3. Textual Interpretation of “Fringe of Islands”
A “fringe” has been defined as “a border or an edge that is broken or serrated”.8
Moreover, “fringe” is used as “an outer edge or margin”, making the utilisation
of “fringe” suitable as a description of the island belt of the Norwegian
coastline. However, the word “fringe” in relation to islands is neither a
conventional legal nor a well-established geographical term, and its reference is
not immediately clear. In regard to the quantitative threshold and the various
dimensions of requisite spatial distribution of islands, the term “fringe” gives
us little or no guidance.9 Geographers use the term “fringing” to refer to reefs
that are continuous around islands (a reef is a feature that is specified in Article
610, which permits an island having a fringing reef to use the reef as its
baseline). In relation to Article 7, this may indicate that in order to have a
continuous character, the islands must cover a certain amount of the coast.
Apart from indicating the need for a certain coverage of the coast, a textual
interpretation of the Convention text in Article 7 gives only limited assistance
in establishing the conditions that must exist to fulfil the “fringe of island”
criterion.
Two methods can be used to test whether the requirements for the
“fringe of islands” criterion are satisfied.11 Both are strictly geographical. The
first method is to test if the islands in question form a unity with the coast. This
method has title in customary principles of international law, as can be seen
from the Fisheries Case from which this rule is directly drawn. The “equality of
geographical features” between the Norwegian coast and that of another state is
the method for finding such a “fringe of islands”. The second method, which is
more suitable for the coastlines of Vietnam and the South China Sea in general,
is to test if the islands form a screen of the coast.12
8 LESLEY BROWN (ED.), “The New…”, pp. 1030-1031. 9 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 86. 10 UNCLOS Article 6: In the case of islands situated on atolls or of islands having fringing reefs, the 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 recognised by the coastal State. See PLATZÖDER. 11 UNITED NATIONS, “Baselines:…”, section 44 and 45, p. 21. 12 Ibid. section 45, p. 21
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4. Islands that Form a Unity with the Mainland
The term “fringe of islands” was introduced in international law as a
consequence of the geographical circumstances of the Norwegian coastline. It
was of such a complexity that it was reasonable to utilise a new principle for
delimitation. In the Fisheries Case, the Court found that with such a density of
islands the only reasonable solution would be a straight baseline enclosing the
outermost islands of the coast. While the characterisation “deeply indented and
cut into” was suitable for the coast of Finnmark, other parts of the Norwegian
coast had belts of islands covering the coastline. The belt of islands was the
starting point for the new straight baseline system. It was based on the presence
of islands in close proximity to the terra firma. The Court’s ruling made
straight baselines, based on a fringe of islands, legitimate:
The number of insular formations, large and small, which make up the “Skjærgaard”, is estimated by the Norwegian government to be one hundred and twenty thousand. From the southern extremity of the disputed area to the North Cape, Map 17 – Western Coast of Norway the “Skjærgaard” lies along the coast of the mainland.13
13 ICJ – The Fisheries Case, p. 127.
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The Fisheries Case judgement repudiated the method of “arcs of circles”,14
which was promoted by the United Kingdom as the proper method for
delimiting territorial seas.15
To the west, the land configuration stretches out into the sea: the large and small islands, mountainous in character, the islets, rocks and reefs, some always above water, others emerging only at low tide, are in truth but an extension of the Norwegian mainland. […] What matters, what really constitutes the Norwegian coast line, is the outer line of the “skjærgaard”.16
Map 17 shows the western coast of Norway. If localities have this sort of
coastal configuration, the proper baseline is a straight one. In addition to the
Norwegian coastline, the same density of islands can be found in the area of
Vancouver Island, Canada. Besides these areas, there are very few coastlines in
the world that can be called a continuation of the mainland. The following
paragraph will discuss islands that form a screen of the coast, more suitable for
the coastlines of the South China Sea region.
5. Islands that Form a Screen of the Coast
Islands “screen” the coast when they are masking a large proportion of the
coast from the sea.17 However, the coast may be swarmed by small islands,
which by their number, justify consideration as a fringe.18 It must not only be
focused on the distance between the islands and the mainland, but also on the
number of islands, their distance from each other and their constellation
compared to the mainland coast.
14 The “arcs of circles” method is used for determining the position of a point at sea, and it was a new method for delimiting the territorial sea. It was admitted by the United Kingdom in its oral reply, and was therefore not obligatory by law. The method position of a point at sea is found by drawing a circle from the mainland. By using the most seaward point of the circle, several circles will produce the basis for a constructed line. For example, a set of 12-nautical mile circles would give the exact distance of the territorial sea, even though the coast is fluctuating in its geographical configuration. Found in ICJ – The Fisheries Case, p. 129. 15 The Fisheries Case judgement stated: “In the present case this method of tracé parallelè [arcs of circle], which was invoked against Norway in the Memorial, was abandoned in the written Reply, and later in the oral argument of the Agent of the United Kingdom Government. Consequently, it is no longer relevant for the case.” See ICJ – The Fisheries Case, p. 129. 16 ICJ – The Fisheries Case, p. 127 17 UNITED NATIONS, “Baselines:…”, section 45, p. 21. 18 Ibid.
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Figure III – Fringe of Islands19
5.1. Preparatory Work and Subsequent Understanding
The UN Office for Ocean Affairs and the Law of the Sea (hereinafter UN Legal
Office), has found that islands that form a screen masking a large proportion of
the coast may entitle a straight baseline system.20 It is generally agreed that no
objective test can be used to identify islands constituting a fringe in the
immediate vicinity of a coast.21 Even so, it may be possible to find some
guiding principles when a group of islands is fringing a coast.
A textual interpretation would require that there should almost be an
edge or a belt of islands to meet the meaning of “fringe”. With regard to the
clear statement that baselines shall not be used to increase the territorial sea
unduly,22 it seems that the legislators wanted to emphasise that an edge of the
coast should be interpreted rather strictly. The general objective of Article 7
should, however, be to guide states.23 The purpose of Article 7 is, to repeat, to
avoid complex territorial sea borders where the coastal configuration is
complex.24 Straight baselines based on a fringe of islands should be evaluated
19 US Dep. “Developing…”, p. 27, figure 12. 20 UNITED NATIONS, “Baselines:…”, section 42, p. 21. 21 Ibid. 22 Ibid., section 39, p. 21. 23 Ibid. 24 Ibid.
73
individually, rather than by using strict mathematical criteria for what
constitutes a screen. The principles of such an individual evaluation will be
analysed in the following sections. First, it will be discussed to what extent the
islands must cover the mainland. Second, it will be analysed what is meant by
“in the coast’s immediate vicinity”. Third, the directional trend of the
outermost island will be discussed. And, finally, a few conclusions from the
above analysis will be drawn.
5.2. Fringe of Islands – Screening the Coastline
It can be safely assumed that there must be a certain density of islands to meet
the requirements for “screening the coast”. The UN Legal Office states that a
screen of the coast “must mask a large proportion of the coast from the sea”.25
This is generally agreed upon. The question is what method should be utilised
to find the level of degree of density, and, how much of the coastline must be
covered?
The analysis of to what extent the coast should be covered by islands
could have its point of departure in the Norwegian coastline. Hodgson analysed
the Norwegian coastline on the basis of the Fisheries Case and found that
islands masked an average of nearly two-thirds of the coastline.26
The US proposal is based on an analysis of the Norwegian coastline. By
recognising that the Norwegian coastline is not easily duplicated, it is difficult
to hold other countries to the standard that Norway met by virtue of the
proliferation of islands along its coast.27 Thus, since there is no international
consensus, apart from the statement of masking a large proportion of the coast,
no mathematical system would be legally binding for other states. Therefore,
even if it were possible to find some mathematical criteria for the Norwegian
baseline system, those criteria would not be of any help in recognising the
legitimacy of Vietnamese baselines.
25 UNITED NATIONS, “Baselines:…”, section 45, p. 21. 26 Robert D. Hodgson, Islands, Normal and Special Circumstances. Department of State Research Study RGS-3. (10 December 1973) (Hereafter Robert D Hodgson. “Islands,…”), p. 23. 27 US Dep. “Developing…”, p. 28.
74
A general principle of international law promulgated in the Fisheries
Case stresses that the nation state has a clear responsibility for drawing
baselines and identifying its own coastline: “The coastal State would seem to
be in the best position to appraise the local conditions […]”.28 An evaluation of
the geographical circumstances and their effect on the spirit of Article 7 would
not give definitive answers, but it could call attention to clear violations of the
Convention text. Conclusively, since there is no support for a strict
mathematical criterion, it can be argued that it is generally preferable to have
individual evaluations based on the object of Article 7.
5.2.1. Object and Purpose of Article 7
The Vienna Convention gives title for using the purpose of a provision in the
interpretation process. The purpose of Article 7, again, is to ensure that the
border of the territorial sea is not too complex, but also that it does not push
maritime zones further out. The International Law Commission emphasised
that there had to be a close relationship between islands to secure that enclosed
waters could be subject to the regime of internal waters.29 The International
Law Commission gives due support for not allowing baselines if a substantial
part of the coast is not covered by islands.
5.2.2. Concluding Comments
Conclusively, it can be claimed that the question of a minimum masking of the
coast is uncertain in international law. It is evident, however, that there is a
requirement of a certain spatial relationship between the islands before they can
be said to produce a fringe of islands. It is possible that the coastal state could
draw a straight baseline where the result of the baseline does not contradict the
spirit of Article 7. State practice will be used to illustrate these points.
28 ICJ – The Fisheries Case, p. 131. 29 ILC Volume I, section 64, p. 218.
75
5.2.3. Subsequent State Practice
In the following paragraphs it will be looked into the baselines of Oman,
Egypt, Italy and France as illustrative state practice on states not following an
interpretation as discussed above.
5.2.3.1. State Practice Outside the South China Sea
In 1982, Oman established a series of straight baselines along its coast in the
Strait of Hormuz and the Arabian Sea. In 1991, the United States protested that
in certain segments “too few islands mask Oman’s coastline”.30 Oman drew its
baselines based on two fringes of islands, which mask only small parts of the
coast. Reference here is made to Groups B and D in Map 18. Consequently, the
straight baselines of Oman do not meet the interpreted condition of a certain
degree of coverage of the coast, and the baselines are therefore not drawn in
accordance with Article 7.
Map 18 – Straight Baselins of Oman31
30 American Embassy, Muscat, Note 0606, dated 12 August 1991, see also ROACH AND SMITH, “United States…”, footnote 87, p. 103. 31 ROACH AND SMITH, “United States…”, p. 86.
76
We can also look at the Egyptian baselines in the Red Sea, where some islands
close to Sudan’s border are supposedly
fringing the coast. They do not, however,
mask more than a few percent of the relevant
coastline. Accordingly, the examples of
Oman and Egypt are evidence of
interpretations in conflict with the generally
agreed understanding of the masking
criterion (see Map 19).
Supporting evidence of the practice of
Oman and Egypt is found in the legislation
of Italy and France; two countries that
generally show a moderate attitude in the
field of the Law of the Sea.32 Yet, in 1977, Map 19 – Baselines of Egypt33
Italy applied a system of straight baselines with several segments that were not
consistent with international law.34 The United States protested as follows:
[…] lines connect offshore islands between the mouth of Arno and Civitavecchia, where those islands cannot be said to be coastal fringing islands in a legal sense. […].
The Italian baselines are based on a fringe of islands criterion, even if the
islands do not cover a substantial part of the adjacent coast. France, which drew
its baselines by a Decree of 19 October 1967, has straight baselines closing in
islands where the islands only mask small parts of the area identified by France
as a straight baseline locality.35
5.2.4. Concluding Comments
The baselines presented above are legislative evidence of state practice not
supporting the Convention text. The purpose of Article 7 is to make the
32 Tullio Scovazzi. “The Establishment…” p. 454. 33 ROACH AND SMITH, “United States…”, p. 88. 34 Ibid., p. 103. 35 UN, ST/LEG/SER.B/15, p. 82, also found in TULLIO SCOVAZZI, ATLAS OF THE STRAIGHT
BASELINES, SECOND EDITION (Milano: Dott. A. Giuffrè Editore) (1989) (Hereafter TULLIO SCOVAZZI, “Atlas…”), pp. 128-129.
77
territorial sea less complex, and the state practice above clearly demonstrates
that states use the straight baseline system for other purposes.
There are numerous examples of state practice drawing baselines around
islands that can hardly be said to fringe the coastline. On the other hand, there
are of course several examples of state practice drawn in accordance with the
Convention. The conclusion can therefore only stress the obvious vagueness of
this preliminary test and the differing state practice in this area of international
law.
5.3. Baselines of Vietnam
On the west coast of southern Vietnam (and Cambodia) we find an area with
several small islands (shown in Map 20 below). We have established that this
baseline does not meet the preliminary test of a deeply indented and cut into
coastline. If we look at
Map 20 – Western Coast of Vietnam – Islands with Territorial Sea36
the 12-nautical mile territorial sea, we can identify a complex territorial border
between area “A” and “C”. By using a straight baseline in this area one would
meet the purpose of Article 7, reducing the complexity of the territorial sea.
The question of where the line should be drawn will be discussed below.
78
6. In the Coast’s Immediate Vicinity
Article 7 explicitly states that the fringe of islands must be in the coast’s
“immediate vicinity” to legitimise a straight baseline. Islands not in the
immediate vicinity should have their own baseline drawn around them, and (if
they fulfil Article 121 (3)) have a right to their own continental shelf and EEZ.
However, should the distance be measured between the coast and the island
from the island’s closest or the farthest point? One might view this question in
relation to the miscellaneous geographical configurations of islands around the
world. If one were to measure the length from the most seaward point of an
island, some areas would seem to be too far from the mainland, even though
the area of water between the mainland and the islands was reasonably small.
Thus, it would lead to an unjust legal system if one were to measure the length
from the most seaward point of an island. Therefore, one should measure the
length from the mainland to an island using the most landward point of the
nearest island as the point of measurement. I find support for this solution in
both Prescott and in the proposed guidelines for straight baselines.
Prescott declares, with justification, that, whatever the chosen maximum distance from the mainland coast, it should be measured from the landward side of the island.37
6.1. Textual Interpretation of “Immediate Vicinity”
How should “immediate vicinity” be interpreted? “Vicinity” can, in the English
language, be interpreted to mean “the state, condition or quality of being near
in space”.38 Even if this is inevitable, the Convention text requires that there
must be a limit to how far away from the coastline islands that are part of a
fringe can be. The Convention text does not just say “vicinity”, but immediate
vicinity. Immediate can be defined as “nearest, or close in space or order”.39
The application of the adverb “immediate” to the noun “vicinity” indicates that
the maximum distance must be strictly defined. Reisman and Westerman, who
base their interpretation of Article 7 (1) precisely on the etymology of the word
36 Corel Draw Map. 37 US Dep. “Developing…”, p. 25. 38 LESLEY BROWN (ED.), “The New…”, p. 3575. 39 Ibid. p. 1315.
79
“vicinity” and its qualification “immediate”, also stress this.40 The co-
ordination of the two words supports a strict interpretation.
Reisman and Westerman suggest that “immediate vicinity of the coast”
must be interpreted to mean that the islands that are part of a fringe cannot be
further away from the coast than 12 nautical miles.41 Roach sets the limit to 24
nautical miles as a general rule after an analysis of all conditions in Article 7.42
These proposed limits take due notice of the possible abuse of the straight
baseline regime.
6.2. Contextual Interpretation
On the other hand there is the consideration of state sovereignty. Thus, the
proposed guidelines for straight baselines, suggested by the US, suggest a limit
of 48 nautical miles.43 The Norwegian straight baseline system gives little
support to establishing such absolute limits since the Court in the Fisheries
Case emphasised that the regime of baselines had to be based on reasonability:
A State must be allowed the latitude necessary in order to adapt its delimitation to practical needs and local requirements.44
This principle of international law emphasises that one should not try to find
absolute standards, but rather stress the principles of application to achieve
legitimate application among states party to the Convention. It therefore seems
difficult to draw a maximum limit for where islands that are part of a “fringe”
can be situated. This is supported by Prescott who notes that:
Probably everyone would agree that a fringe of islands 3 nautical miles from the coast was in its immediate vicinity. Equally, everyone would probably concur that a fringe of islands 100 nautical miles from the coast was outside its immediate vicinity. Unfortunately, it would not be possible to predict with confidence what the majority thought of a fringe of islands, 25, 40 or 65 nautical miles from the coast.45
40 REISMAN AND WESTERMAN, “Straight Baselines…”, p. 88. 41 Ibid. p. 89. 42 ROACH AND SMITH, “United States…”, p. 64. 43 US Dep. “Developing…”, p. 22. 44 ICJ – Fisheries Case, p. 133. 45 J.R.V. PRESCOTT, “Straight Baselines:…”, pp. 13-14.
80
6.3. The Purpose of Article 7
Straight baselines can not be used to increase the area of internal waters
unduly. Thus, when a straight baseline subjugates sea areas, it conflicts with
the purpose of Article 7. The problem regarding the purpose of the straight
baseline regime forms a double-sided discussion. First, one should look at the
degree of complexity in the territorial sea border produced by the coastal
configuration. Second, one should investigate the area being subjugated as
internal waters by the straight baseline. The degree of complexity and its
purpose of navigation, delimitation and simplicity should then be compared
with the size of the area subjugated as internal waters and its impact on the
right to free navigation and delimitation problems.
6.4. Subsequent State Practice
When analysing subsequent state practice, the thesis will discuss both the
condition of masking the coastline and the condition that the islands must be
situated in the coast’s immediate vicinity.
6.4.1. The South China Sea Region
The responsibility of delimitation has also been eagerly carried out by the
coastal states of the South China Sea. China, in its baseline proclamation of 15
May 1996, drew a 107-nautical mile baseline connecting Hainan Island with
the Chinese mainland. This baseline was based on two small islands on either
side of an international strait,46 enclosing huge parts of the high seas as internal
waters. In the drawn baselines of Taiwan of 10 February 1999, Taiwan utilises
straight baselines to enclose several islands off its coast. These Taiwanese
baselines move the outer edge of national jurisdiction seawards up to 40.5
nautical miles.47
46 Reference is made to note 76, p. 60. 47 Microsoft Measuring Tool between basepoint T 16 and the mainland.
81
6.4.1.1. China
China has drawn three baselines off the coast of the Chinese province of
Guangdong. The segments are 71.3, 66.8 and 25.4 nautical miles long.48 The
first segment is drawn from Dafan Shi to the islands of Weijia Dao, the second
to Jiapeng Liedao, and the third from there to the unnamed basepoint 28 (see
Map 21, left end of black line).49 As the baselines are facing south and have no
overlapping EEZ-claims in their adjacent waters, they will not have any
significant role in the maritime delimitation of the South China Sea. This
presupposes that China will achieve international recognition for its claim to
the Paracels. If the Paracels generate an EZZ and continental shelf, and are
granted to Vietnam, the EEZs of mainland China and the Paracels may overlap.
However, the delimitation of the Chinese EEZ could still be of some
importance. Those waters that are not subjugated under the EEZ regime will
serve the general benefit of mankind. It is therefore evident that the
international community has a direct interest in the legitimacy of the Chinese
baselines in this area.
Map 21 – Southern China – Baselines in the Hong Kong Area50
48 US Dep. “Straight Baseline Claim: China”, p. 15 (Annex 3, “Straight baselines Segments Lengths and Reference Charts). 49 US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER, CHINA’S CLAIMED STRAIGHT BASELINES
(Number 802493) (R02169) 6-96. 50 US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER. THE SOUTH CHINA SEA .
82
There are numerous islands in this area, stretching from just off and within
indentations of the mainland, out to the baseline 15 nautical miles off the coast.
They are spatially close to each other and would produce overlapping territorial
seas if normal baselines were used. We can ascertain that, prima facie, the
coast is masked by more than 50 %, thus probably meeting the criterion that the
islands in a fringe should mask a large proportion of the coast. The question of
whether 15 nautical miles qualifies as “immediate vicinity” can also be
answered positively. Conclusively, this baseline seems to conform with
international law, and the Chinese EEZ should be measured from the lines
between basepoints shown in Map 21. This conclusion is partly supported by
the US Department of State, which has not analysed the baselines adjacent to
Macao and Hong Kong, but has found the baseline between these points to be
legitimate.51
This legitimate Chinese application of Article 7 is an important
contribution to state practice, particularly in a regional context, where the
coastal states seem to apply a radical interpretation of the straight baseline
regime. Finally, it should be stressed that China has other baselines that may be
inappropriate between Hainan Island and the mainland, and in the northern
areas of the East China Sea, giving the impression that China in general may
not have appropriate straight baselines.
6.4.1.2. Taiwan
The Taiwanese baselines do not conform to the criterion of having a deeply
indented and cut into coastline. There are, however, several islands located off
the coast of Taiwan. Can these islands generate straight baselines? Three areas
will be discussed: (1) the areas of points T6-T1, (2) T19-T15, and (3) T13-T9
(Map 22).
51 US Dep. “Straight Baseline Claim: China”, p. 7.
83
In the first area, the Taiwanese government has enclosed some small
islets situated approximately 30 nautical miles from the mainland.52 How many
islets there are and their Map 22 – Baselines of Taiwan53
geographical status are
uncertain, but there are
probably not more than 3 or 4
islets of a very small size.
Due to their size, it is
probable that these islets do
not cover a sufficient part of
the coastline, and it is
questionable whether they are
in the coast’s immediate
vicinity. Since there are no
islands between the islets and
the mainland, a distance of 30
nautical miles will exceed
that of the territorial seas
generated in the area. It is
therefore probable that the territorial seas will not connect, and therefore also
not produce, a complex territorial sea. Hence it is not necessary to depart from
a normal baseline regime based on the low-water mark criterion.
The second area consists of three straight baselines enclosing two
islands of considerable size. These islands cannot constitute a “fringe” since
they are situated 32.5 nautical miles from each other along a 102-nautical mile
coastline,54 and thereby covering only a minor part of the coastline. It should
also be noted that the most southern basepoint is situated approximately 40.5
nautical miles off the coast, thus probably on an islet that is not in the
52 Microsoft Measuring Tool. 53 Map scanned and edited by Dr. K. H. Wang, received by mail 5 March 1999. 54 Ibid.
84
immediate vicinity of the coast. It is therefore likely that these baselines do not
conform to international law.
The third area is from T13-T9.
Map 22 shows that there are
numerous islands in the area, located
from just outside the coast to some 45
nautical miles off the coast.55 The
territorial seas of these islands and the
mainland overlap each other. (See
Map 23)56. Thus, according to the rule
proposed in this thesis, there is a need
for straight baselines. The islands also
mask a considerable part of the
coastline, thus fulfilling the coverage
of the coast criterion. The only
problem is that the islands are
connected to other parts of the coast
by an illegitimate baseline. It may
therefore be suggested that Taiwan re-
evaluate the baseline drawn between
T8 and T9, and T13 and T14. A proper line should be drawn directly into the
mainland from the most southern and northern island of this fringe. The
baselines between T13 and T9 are probably in conformity with international
law.
55 Ibid. 56 US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER. THE SPRATLY ISLANDS AND PARACEL
ISLANDS (Number 801948) (R00118) 3-92.
Map 23 – Taiwan’s Territorial Sea1
85
6.4.2. State Practice Outside the Region
In 1977, the government of Cuba claimed a system of straight baselines around
its entire coast, which, in part, involved basepoints on non-fringing islands.57
(Reference is made to Map 24)58.
Between points 10-17 it appears (according to US charts) that low-tide elevations on the Cuban fringing reefs have been utilised as basepoints for the system. From point 17 (Punta Gubanodura, west of Bahia Honda) through point 28, the Cuban coastline is neither indented nor fringed with islands…. From 77º West to no. 92, the Southern entrance to the Gulf of Guacanayabo, the Cuban coastline again is not deeply indented nor fringed with islands. […] Line 107-110 follows the Southern coast of the Isle of Pines, which is neither indented nor fringed with islands.59
The United States formally protested against the Cuban baselines on 5 July
1983.60 The Cuban straight baseline system is also criticised by Prescott. Cuba
answered the US objection by arguing that:
Because of the geographical formation of Cuba, which has fringes of islands along its coast in the immediate vicinity of
57 ROACH AND SMITH, “United States…”, p. 104. 58 TULLIO SCOVAZZI, “Atlas…”, p. 113. 59 US Department of State, Straight Baselines, Cuba. Limits in the Seas, number 76 (1977), pp. 7-8 (1977). 60 US Department of State Note dated 5 July 1983, to the Cuban Interests Section of the Embassy of Czechoslovakia, see also ROACH AND SMITH, “United States…”, footnote 90, p.106.
Map 24 – Baselines of Cuba
86
its major island that are clearly under its sovereignty inasmuch as the space between them is governed by internal waters regulations, the right of the Republic of Cuba to draw straight base lines is irrefutable.61
The Cuban baselines clearly do not conform to the preliminary test of “fringe
of islands”, but the Cuban government stressed the previously mentioned
consideration of state sovereignty as emphasised in the Fisheries Case.
However, the principle of the international aspect of ocean delimitation cannot
be underestimated. The Cuban legislation is an example of state practice
deviating from a reasonable interpretation of the 1982 Convention. It is likely
that these baselines would be rejected as being in conflict with international
law, since they do not follow the principles of the 1982 Convention.
In 1985, the government of Portugal claimed
a system of straight baselines along the mainland
coast that also clearly seems contrary to international
law. (Reference is made to Map 25). The United
States protested as follows:
[…] The segment connecting Cabo Mondego with Farilhoes and Berlenga Island and thence to Cabo de Roca are […] invalid as the above islands in no way can be said to meet the legal requirement that they constitute a fringe of islands along the coast in its immediate vicinity.62
The Portuguese baselines are evidence of state
practice deviating from the Conventional principles
of Article 7.
6.5. Baselines of Vietnam
The islands of Vietnam’s western coast have already been briefly discussed in
the section “Masking of Coasts”. The complexity of the territorial sea made the
utilisation of a straight baseline legitimate. It should be noted that this line did
61 Ministry of Foreign Relations, Havana, Note dated June 26, 1984, State Department Language Service translation number 113320, State Department File number P92 0100-0942, see also ROACH
AND SMITH, “United States…”, footnote 90, p.108. 62 American Embassy, Quito, Note delivered 24 February 1986. State Department telegram 266998, 25 August 1986, see also ROACH AND SMITH, “United States…”, footnote 92, p.109.
Map 25 – Baselines of Portugal1
87
not have any impact on the oceanic delimitation between Vietnam and
Thailand, which was completed on 9 August 1997 with a treaty ratified in
February 199863. Here, it will be tested if the islands, or some of them, are
situated too far from the terra firma and each other, and which islands are close
enough to the mainland.64
The island of Tho Chu (which has several small islands in its immediate
vicinity) is situated in the Gulf of Thailand, west of the Ca Mau peninsular.65 It
Map 26 – Western Coast of Vietnam – Distance to Islands66
constitutes the basepoint A1 of the Vietnamese baseline system,67 drawn from
Tho Chu island which lies 80.7 nautical miles from the Vietnamese mainland
(Map 26).68 Does this island belong to a fringing group of islands in Vietnam’s
immediate vicinity? By comparing the distance between an island and the
mainland, 80 nautical miles is a distance of six times the length of the territorial
sea. The territorial seas of the islands of Tho Chu and the others does not
interact with each other, giving no cause for drawing a straight baseline (see
63 See Chapter V, section 1.1.3. 64 Preliminary because there still are several conditions that must be fulfilled to regard the baseline as legitimate. These conditions will be analysed in this thesis, refrence is made to paragraph 7.3. 65 BAN DO HANH CHINH, VIET NAM-LAO-CAM PU CHIA. (Vietnamese map published in 1989). (Hereafter Ban Do Han Chinh). 66 Corel Draw Map. 67 US Dep. “Straight Baselines: Vietnam”, p. 4.
88
Map 26, inset). Thus, the island does not seem to be in the “immediate
vicinity” of the coast. Hence, a contextual interpretation does not support a
solution regarding these islands as legitimate areas for drawing a straight
baseline. More generally, 80 nautical miles seems too much to warrant the
immediate vicinity, almost a half-length of the EEZ, as internal waters with full
national jurisdiction.
The other islands in the area will be discussed on a collective basis. The
island group of Quan Dao Ba Lua69 consists of 29 islands spatially situated in a
17.6 kilometre long area close to the Vietnamese coast (north in Map 26),
which is well inside the proposed limits of several authors.70 Hence, these
islands are in the immediate vicinity of Vietnam. However, other islands are
also situated in the area:
The large island Phu Quoc.71 The distance from Vietnam to this island is 21 nautical miles.72
26.2 nautical miles west of the Vietnamese mainland we find 20 islands of various sizes in a 12.6 kilometre diameter around the island of Nam Du.73
In the seaward opening of the bay outside Rach Gia, there are two islands, each of which is less than 24 miles away from the coast of Vietnam,74 Hon Rai and Hon Tre. 75
Further south, 18.2 nautical miles76 north of Cape Ca Mau, we find Hon Chuoi and Hon Buong.77 Hon Buong is situated 14.9 nautical miles west of the coast of Vietnam.78
Lastly, we can identify the second basepoint79located outside the island of Hon Khoai,80 outside the southern edge of Vietnam’s territory. Hon Khoai and a smaller island close by, Hon Sao, are some 6.6 nautical miles from the mainland81 (basepoint 2 is situated some 11 nautical miles off the coast82).
68 Ibid. p. 6. 69 BAN DO HANH CHINH. 70 Microsoft Measuring Tool. 71 BAN DO HANH CHINH. 72 Microsoft Measuring Tool. 73 Ibid. 74 Ibid. 75 BAN DO HANH CHINH. 76 Microsoft Measuring Tool. 77 BAN DO HANH CHINH. 78 Microsoft Measuring Tool. 79 At Hon Da Island Southeast of Hon Khoai Island, Minh Hai Province at 8º22.8’N - 104º52.4’E, also found in US Dep. “Straight Baselines: Vietnam”, p. 4. 80 BAN DO HANH CHINH. 81 Microsoft Measuring Tool 82 US Dep. “Straight Baselines: Vietnam”, p. 6.
89
The longest distance from one of these island groups to the mainland is 26.2
nautical miles. Even at this distance, we can see that the territorial waters of
Phu Quoc overlap with the other territorial seas in the area (Map 26). By
applying a straight baseline, which encloses all the islands identified above, the
territorial borders become smooth and easily navigable. This gives support for
regarding these islands as being in the immediate vicinity of the coast.
In view of the principle of national determination of local
circumstances, and the fact that the baselines fulfils the purpose of article 7,
islands that are not too far from the coast should probably be included inside a
straight baseline. As a preliminary conclusion I will argue that there is a fringe
of islands in the immediate vicinity of the west coast of Vietnam. The island of
Tho Chu, however, is not in the coast’s immediate vicinity.83
Adjacent to the Vietnamese coastline, from the island of Con Dao to the
island Hon Hao (see Map 27), the government of Vietnam has drawn its
straight baseline (basepoints A5 and A6). These basepoints are situated 51.5
and 74.2 nautical miles from the mainland, respectively.84 The area of full
Vietnamese jurisdiction is therefore moved seaward by up to 74 nautical miles,
thus increasing not only the internal waters area, but also the EEZ and
continental shelf. This concerns the southern part of the Spratly Islands and the
waters north of Natuna. Other claimants in this area are China, Malaysia,
Brunei and Indonesia, who all have overlapping claims with Vietnam.85 Hence,
the question of whether the baseline adjacent to the coast of Vietnam is
legitimate could have a profound impact on delimitation issues in the southern
part of the South China Sea.86
In this baseline segment there are only two islands, and the basepoints
are situated on these islands. Indentations in the Mekong River Delta will not
be taken into consideration in this analysis, since Vietnam has not drawn
83 This baseline segment will be discussed in section 7. 84 Ibid. 85 Reference to VALENCIA, VAN DYKE AND LUDWIG, “Sharing…”, map p. 259, see also Chapter I , section 2.2.3. 86 For an analysis of the baseline question in the South China Sea conflict and maritime delimitation, see chapter VII - Conclsuion.
90
baselines along its Mekong Delta main coast, but far out at sea from one island
to another. The condition that a fringe of islands should cover a certain
proportion of the coast is clearly not fulfilled. Thus the baseline does not seem
legitimate. It may also be asked if the islands are in the immediate vicinity of
the coast? Since the territorial seas of the two islands do not connect with the
territorial sea of the Vietnamese mainland, the straight baseline does not
significantly reduce the complexity of the territorial waters. This supports
utilisation of the low-water mark as the baseline in this segment, according to
Article 5. To conclude, the islands are not in the coast’s immediate vicinity,
and the preliminary test is not fulfilled.
Map 27 – Southern Coastline of Vietnam87
6.6. Concluding Comments
Vietnam and Taiwan have drawn baselines that are not appropriate, since a
“fringe of islands” in terms of Article 7 is not present. It is shown in this
analysis that Vietnam’s southern straight baseline, based on islands, are
illegitimate. It would appear that South China Sea claimants draw their straight
baselines outside their outermost island, and that where there are no islands
present, the baselines seem to be drawn close to the coast. China who has not
91
drawn their baselines considerably long from the terra firma when there were
no islands to connect the baseline shows this. This may lead to the development
of a new state practice developing new regional customary law with a more
liberal interpretation of UNCLOS than has been advocated in this chapter. In
addition, if none of the baselines have their basepoints at sea, then it may be
argued that state practice among these claimants is consistent. The liberal
baseline legislation could be an expression of a change in international law on a
regional level, rather than illegitimate application of the 1982 Convention. This
question will be elaborated on in Chapter V – Conclusion.
7. The Directional Trend of the Outermost Island
Another condition of Article 7 is that the fringe of islands should be situated
“along the coast”. This should be interpreted as a condition based on direction.
For a straight baseline to be legitimate, the fringe of islands screening the coast
must have the same direction as the general direction of the coast. The vague
character of Article 7 gives little guidance as to how the directional trend
criterion should be understood. How can the general direction of the coast be
established? The answer to this question is also relevant in another context,
since straight baselines are required by UNCLOS, Article 7 (3), to follow the
general direction of the coast.88
The direction of the coast was also emphasised in the Fisheries Case,
which stressed the dependency between the territorial sea and the mainland.
Same direction is a criterion for such dependency; hence, the general
dependency between the mainland and the territorial sea supports a textual
interpretation of “along the coast”. Therefore, islands arranged as stepping-
stones perpendicular to the general direction of the coast cannot legitimise a
straight baseline regime.89
87 Corel Draw Map. 88 Reference is made to Chapter IV, paragraph 3 – “Does the Baseline Depart…” . 89 UNITED NATIONS, “Baselines:…”, p. 21.
92
7.1. Method for Finding the Directional Trend
There are two methods for establishing the general direction of the coast. The
first is to draw arcs of circles from the mainland. By taking the most seaward
point of all the arcs drawn, one produces a new line indicating the coast’s
general direction. This method was proposed by the United States’ delegation
at the 1930 Conference for the Codification of International Law. Its purpose is
to secure the application of the principle that the territorial sea must follow the
general direction of the coast.90
The second method, also proposed by the United States in 1930, is to
draw a line, running parallel to the coastline, not more than 60 nautical miles
from it, with a directional deviation of no more than 20 %, and having both of
its endpoints on the mainland.91 Since it uses “parallel” and a “20 %” deviation,
this US proposed method gives more room for subjective interests affecting the
line than the “arcs of circle” method. It should also be pointed out that any
mathematical criterion for how to draw a line by this method lacks any precise
correspondence in Article 7 of the Convention.92 The second method would
probably produce different results, depending on the scale of the map used.
There is also a problem with the “arcs of circle” method, which could produce
different results depending on the size of the arcs utilised. However, as the
“arcs of circle” method is also used to delimit the territorial sea, it could be a
natural starting point also to use the territorial sea limit (12 nautical miles) as
the radius of the arcs. By this method one would at the same time also show the
complexities produced by islands’ territorial seas, and thereby indicate if there
is a need to connect the straight baseline in order to reduce complexity. In
conclusion, it seems that the appropriate way to determine the direction of the
coast is to use the method of “arcs of circles”.
90 ICJ – The Fisheries Case, p. 129. 91 US Dep. "Developing…”, p. 30. 92 Tullio Scovazzi. “The Establishment…”, p. 449.
93
7.2. Directional Trend and Legal Custom
While the ICJ in the Fisheries Case states that the drawn baselines expressed
the general direction of the coast, the UN Group of Experts saw that stricter
rules were needed to control the use of straight baselines. However, nothing
happened until the February 24 1982 Tunisia vs. Libya decision and the
decision of Libya vs. Malta in June 3 1985. The Court here applied a direction
after viewing the country or the region as a whole from a macro-geographic
sense. Nonetheless, juridical literature sees the other side of the picture, the
subjective nature of this rule. After finding support in several negotiated
solutions in state practice, in the report from the UN Group of Experts and in
the objective nature of such a geometrical solution, juridical literature
concludes that there are good reasons for an arc of circle method to have the
starting point in the terra firma. One view is to take the earlier decisions at face
value and not interpret the general direction of the coast in these cases as an
expression of customary law. An international tribunal would rather find a
solution that the parties can live with than attempting to appease all sides in all
parts of the judgement. We will probably not see a definitive ruling on these
criteria before there is a case where the baseline question is of high importance
for the conflict. Consequently, the general direction of the coast is emerging as
an uncertain criterion, although there are, in accordance with the view of
Professor Reisman and Professor Westerman, several equitable interests in
supporting an arc of circle method from the terra firma
If arcs of circles are drawn with a radius of the same length as the
breadth of the territorial sea (12 nautical miles),93 then one should emphasise
that to accomplish an accurate direction of the coast, several points must be
constructed where the coast shifts direction.
93 See Article 3 – “Every State has the right to establish a territorial sea up to 12 nautical miles, measured from the baseline determined in accordance with this Convention.” See PLATZÖDER.
94
7.3. The Baselines of Vietnam
How can the arcs of circle method be used in the South China Sea? We shall
look here at an especially complicated case, the short western coast of southern
Vietnam, between the point of Ca Mau and the Cambodian border. It has
already been established that the fringe of islands criterion is fulfilled in this
area. The question now is whether the fringe follows the coast’s directional
trend (see Map 28).
The seven points chosen have merely the purpose of giving a sufficient
illustration to find out whether the fringe departs from the coast’s directional
trend. However, before this comparison of directional lines can be
accomplished, we must establish one line that can be representative of the six
lines between the constructed points. This is because all these lines have
different angles as the coast changes configuration. How this line is to be
constructed is uncertain in international law. One may propose the construction
of a line with an average degree of the constructed lines. The direction of the
fringe is found by constructing a line through the islands representing their
approximate mutual direction. As shown in Map 28, the difference between the
fringing islands and the general direction of the coast does not seem to be too
large. It is therefore suggested that the new baseline of the west coast of
Vietnam should be drawn according to Map 28.
95
Map 28 – Western Coast of Vietnam – directional trend94
8. Concluding Comments
During the analysis of the fringe of island preliminary test, the thesis have
emphasised the importance of national state jurisdiction and thereby individual
management of baselines when discussing all the conditions for passing a
preliminary test of having a fringe of islands present. The preliminary test of
having a coast fringed with islands that form a screen of the coastline should
sustain the following requirements.
1. The fringe of islands must cover a part of the identified coastline. The
extent of coverage must be individually determined on the basis of
fulfilment of the objective of Article 7.
2. When measuring the maximum distance from the mainland to an island, the
distance should be measured from the landward side of the island.
3. It is not sufficient support, in the legal sources of international law, to set a
maximum distance for regarding an island within the immediate vicinity of
a coastline. However, it can probably be argued that all islands within 24
nautical miles from the coast can be regarded as being in the immediate
vicinity of the coast. Islands situated 80 nautical miles or more from the
96
coast are not in its immediate vicinity, unless other islands are situated in its
vicinity making the territorial sea complex.
4. The directional trend of the coastline is found by using the breadth of the
territorial sea when applying a constructed line on the basis of the “arcs of
circle” method.
5. Islands arranged like stepping-stones perpendicular to the coast cannot be
legitimate under the straight baseline regime.
94 Corel draw Map.
97
Chapter IV
Appropriate Basepoints
1. Introduction
After it has been established that at least one of the preliminary tests is positive,
and a straight baseline is therefore legitimate, one additional requirement must
be fulfilled in order for the line to be in conformity with international law: The
selected basepoints must be appropriate according to Article 7 (1). The
preliminary tests establish whether one can draw a straight baseline or not; the
basepoints are responsible for determining exactly where the baseline is to be
situated. Appropriate points must meet the conditions of Article 7 (3)-(6).
Therefore, this chapter is not about the legitimacy of using straight baselines,
but about where they can legitimately be drawn. The concerns are that
baselines must not be drawn too far from the mainland, that their direction must
not be illegitimate and that the enclosed waters must be suitable for the regime
of internal waters.
In this analysis a distinction is made between “appropriate” basepoints
and “legitimate” basepoints. “Appropriate” basepoints meet the legal position
of the basepoints in question after discussing all provisions (Article 7 (3)-(6)).
If the basepoints pass these legal requirements, they are appropriate.
“Legitimate”, on the other hand, makes reference to the discussion of whether
the actual locations of the basepoints are over or below the low-water mark.
The reason for this distinction is to create clarity around the overall legitimacy
of basepoints and whether the physical locations of basepoints are proper.
The following sections will discuss (1) whether the basepoints are
legitimate, (2) if the drawn baselines depart from the general direction of the
coast, (3) if the waters have an internal character, and finally (4) if there exists
a condition where one can undertake an overall analysis of economic interests
that are peculiar for the region.
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2. Legitimate Basepoints
The problem is where basepoints should be situated in order to be in
conformity with international law? Vietnam placed its first basepoint, in the
Gulf of Thailand, in the sea at a seawards prolongation of the land border with
Cambodia, where there are no insular features. China placed a basepoint
outside Hainan Island on a reef submerged at high tide. This section will
discuss what, in accordance with international law, makes such basepoints
illegitimate. This section will not, however, discuss low-tide elevations with
lighthouses or similar installations (reference is made to Article 7 (4)), since no
such features seem to have been used as basepoints in the South China Sea.
The following section will discuss basepoints on land.
2.1. Basepoints on Land – Above or on the Low-Water Mark
The Convention text does not explicitly state what is regarded as an
“appropriate point”. However, Article 7 (4) provides detailed rules for how to
situate basepoints on low-tide elevations. Contextually, it can therefore be
ascertained that basepoints cannot be situated wherever the coastal state may
decide. It is generally agreed, as shown by the UN Legal Office, that according
to Article 7 (1) “appropriate” points should be understood to be a on land,
above or on the low-water mark.1 One reason for this is that the regimes of
internal waters and the territorial sea need a visible border demarcation. An
insular feature makes it easier to locate the border when navigating the seas.
While taking into account differences in national jurisdiction, it is
important to have clear rules and well-marked borders in order to have a
functional ocean governance. If the straight baseline system is used, there are
very good reasons for requiring that the basepoints are situated on land, such as
on the low-water mark. If not, the baseline system cannot be closed, producing
an area without any border between the internal waters and the territorial sea.
The yet-to-be-defined Vietnamese terminus outside its land border with
Cambodia (point 0) is the only basepoint in the South China Sea that is located
1 UNITED NATIONS, “Baselines:…”, section 51, p. 24.
99
on the high sea. A straight line links the Tho Chu Archipelago to the Poulu Wai
Island.2 Since a straight baseline system must always be closed3, this basepoint
does not, therefore, seem to be in conformity with international law. The
illegitimacy of the Vietnamese basepoint was analysed by the Office of the
Geographer of the Department of State who commented:
The Vietnamese-proposed point 0 is neither a high-tide elevation nor a low-tide elevation with a permanent structure; therefore, a basepoint at point 0 appears to be in violation of UNCLOS Article 7.4
On the other hand, a system can have basepoints located at sea without
“opening” the system.5 This is done by the Maldives, who have a circular
system based on points in the sea. On 29 May 1972, the Maldives government
transmitted to the United Nations Secretariat a note, which stated that
according to the constitution of the Republic of Maldives the Territorial Limit
of the Republic of Maldives is
defined as shown in Map 29.
The United States
commented that:
Such claims have no basis in international law. In asserting jurisdiction over areas extending seaward from its land territory, a coastal state must measure the breadth of any such areas from baselines drawn in accordance with international law. The normal baseline is the low-water mark of the coast, and the limited exceptions to this rule only allow for the use of straight baselines to connect coastal features in certain circumstances.6 Map 29 – Baselines of the Maldives7
2 ROACH AND SMITH, “United States…”, p. 128. 3 Ibid. 4 US Dep. “Straight Baselines: Vietnam”, p. 7. 5 The system can be regarded as opened when the straight baseline does not have its final basepoint on the mainland. In open systems, it is possible to sail from the territorial seas to the internal waters without crossing a border. 6 American Embassy, Colombo, note dated 2 August 1982. State Department telegram 150666, 2 June 1982, found in ROACH AND SMITH, “United States…”, p. 134.
100
By looking at the basepoints at sea of the Maldives and Vietnam it is clear that
such basepoints increase the territorial sea unduly. This is not in accordance
with the purpose of Article 7. Consequently, it seems that these basepoints do
not have support in international law. No legitimate trend can be established on
the basis of the practice of a few states party to the 1982 Convention. The
question of basepoints at sea has not yet been discussed in any court decision,
but the United States has objected to them. Supportive conclusions are made by
Van Dyke, who states that “..such an approach cannot be justified under
international law”.8 Prescott is also critical of the termini of the baselines and
the fact that they, in the South at least, seem to end in the open sea.
Consequently, the line from point “0” to point “1” should be drawn to the terra
firma of Vietnam. Basepoint “0” is not appropriate since it is located at sea.
3. Does the Baseline Depart to any Appreciable Extent from the General
Direction of the Coast?
When the straight baseline system was developed on the basis of the
Norwegian Decree of 1935, it was emphasised that the system of having
geometrically constructed lines was appropriate as long as the system was not
used for increasing the territorial sea unduly.9 One of the provisions included in
the straight baseline regime, was that the drawing of baselines must “not depart
to any appreciable extent from the general direction of the coast […]”
(UNCLOS Article 7 (3)).
3.1. Textual Interpretation
We must discuss both what “the general direction of the coast” means and what
is meant by saying that the baseline must not deviate from it to any
“appreciable extent”. Textually, “appreciable extent” means to a certain extent
7 ROACH AND SMITH, “United States…”, p. 133. 8 Valencia and Jon M. Van Dyke, ”Vietnam's National…”, p. 221. 9 UNITED NATIONS, “Baselines:…”, section 39, p. 21.
101
or to an extent. The principle of conformity between the baseline and the
general direction of the coast was emphasised in the Fisheries Case.
[…] some reference must be made to the close dependency of the territorial sea upon the land domain. It is the land which confers upon the coastal state a right to the waters off its coast. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of baselines must not depart to any appreciable extent from the general direction of the coast.10
This textual interpretation does not lead us any further since “certain” is just as
vague as “appreciable”. The problems related to such vagueness were
identified by the International Law Commission when it stated that the
expression “to an appreciable extent” would inevitably be interpreted in
subjective ways and could not provide a precise standard.11
It should, however, be noted that the evaluation of the coast’s general
direction is not, and cannot be, a question that deals with the distance between
the baseline and the coastline. A textual interpretation stresses that the
directional trend of the coast shall only look into the congruence of two
bearings. For further guidance on the contents of this provision, one can
analyse the purpose of the straight baseline regime and the general principles of
international law promulgated in the Fisheries Case by the ICJ.
3.2. Contextual Interpretation and the Purpose of Article 7
When we now look at the provision in a contextual setting (reference is made
to the Vienna Convention Article 31 (1)) we must first return to the question of
defining the coast’s general direction. Before analysing the deviation of a
baseline from the coast’s directional trend we must have a method for defining
the directional trend of the coast. If the direction of a drawn baseline deviates
from the coastline, one must establish the legitimate direction of the baseline.
The International Law Commission found that the so-called general direction
of the coast would be totally different depending on the size of coastal area in
question. On a small-scale map of Europe defining the whole of the Norwegian
10 ICJ – The Fisheries Case, p. 133. 11 ILC, volume I, section 19, p. 203.
102
coastline, the coastline from Narvik to Ålesund appears as a single straight line,
while on large-scale charts, such as those used for navigational purposes, the
general direction of the coast appears as a fluctuating line due to the many deep
indentations in the same area.12
The question of method can, however, be partly answered in relation to
Chapter V, where it was found that the “arcs of circles” method with a 12-
nautical mile diameter could be used to define territorial sea in an area with a
complex coastal configuration.13 The same method can be used to find the
directional trend of the coastline.14 At the first stage, this method will produce a
series of lines with somewhat deviating directions. At the second stage, an
“average line” can then be drawn from the first to the last, with due
consideration for the directions of the lines in-between. In an area where the
coastline clearly changes direction, one may make sense of the term “general
direction of the coast” by dividing the coastline into several segments.
Consequently, the directional trend must be determined on the basis of highly
subjective decisions as to which stretch of coast should be considered. The
“arcs of circle” method does not provide any recipe for meeting this decision,
only for calculating the coast’s general direction, after the choice of the proper
segment has been made.
The “arcs of circle” method, with some approximate average of the
degree of the constructed line for finding the general direction of the coast, is
coherent with the ICJ ruling. In the Fisheries Case, the ICJ found that the
general direction could not be determined with any mathematical precision.15
The Court did not say anything about how one should find the general direction
of the coast. By coupling the “general direction” criterion with the criterion of
“not depart to any appreciable extent” the Court combined two subjective
elements. The International Law Commission later emphasised that this
coupled criterion was too vague to be used as a valid legal criterion.16 Since
12 ILC, volume I, section 47, p. 198. 13 Reference is made to Chapter V, supranote 14. 14 See Chapter III paragraph 7.2. 15 ICJ – The Fisheries Case, pp. 141-142. 16 ILC, Volume I., section 48, p. 198.
103
there is no precise rule of law indicating what the general direction of a coast
is, one can only reject a baseline where there is a case of manifest abus de
droit. Manifest abuse would be found if the coastal state unduly increased its
territorial sea by having a baseline deviating appreciably from any possible
interpretation of the general direction of the coast.
Reference is made to the Vienna Convention, Article 31 (1), in order to
claim that the purpose of the provision “appreciable extent” is to ensure that the
system of straight baselines is not abused. This abuse can not be manifested if
the straight baselines do not deviate from the general direction of the coast, but
rather follow the coast without producing a complex territorial sea. By having
such a bar, together with the additional rules connecting the other basepoints to
land or to an insular feature, it would be practically impossible to subjugate
huge parts of the high seas as the coastal states’ internal waters.
In the Norwegian baseline system, the maximum divergence between a
baseline and a favourably calculated general direction of the coast is
approximately 15 degrees. Since the Norwegian system is the basis for the
Fisheries Case, such a deviation must be regarded as being “not departing to
any appreciable extent”. Manifest abuse must therefore exceed 15 degrees,
relative to the most favourable interpretation of the general direction of the
coast. Clearly, where incoherence leads to a situation where the coastal state
increases the area of its internal waters, pushing out its maritime zone claim,
the drawn baseline will probably be inappropriate.
3.3. Subsequent State Practice
Can state practice give examples which support a modification of customary
law as far as interpreting the general direction of the coast and the degree of
deviation (15 degrees) is concerned? The baselines of Cuba and Mexico will be
presented below.
104
3.3.1. Cuba and Mexico
Cuba and Mexico have drawn
straight baselines that are, by
some, regarded to deviate
unduly from the general
direction of the coast. The
Cuban straight baseline system
of 1977 includes several
segments that do not follow the
general direction of the coast.17
The United States government protested the baselines in a note delivered on 13
July 1983.18 The US Department of State has also analysed the 1968 straight
baselines of Mexico and found that they do not follow the general direction of
the coast in four instances. The United States protested this claim in a note
from the US Ambassador to Mexico City on 5 August 1969.19 Reference is
made to Map 24 at page 84 and Map 30, above.20
Even if one can find examples of state practice that support a more
liberal interpretation of the condition of the coasts’ directional trend, it cannot
be said that such state practice is sufficiently widespread to have produced any
modification of international law.
3.3.2. Concluding Comments
One conclusion is that there is no mathematical method for determining the
general direction of the coast. Consequently, it is not possible to set a
maximum limit for deviation. However, manifest abus de droit can be rejected
on the basis of non-conformity with the purpose of the straight baseline system.
17 ROACH AND SMITH, “United States…”, p. 122. 18 Department of State Note dated 5July 1983, to the Cuban Interests Section of the Embassy of Czechoslovakia, see also ROACH AND SMITH, “United States…”, footnote 90, p. 106. 19 These protests are available in US Department of State. Limits in the Sea, number 4 (January 1970) 20 TULLIO SCOVAZZI, ”Atlas…”, p. 169.
Map 30 – Baselines of Mexico
105
3.4. The Baselines of Vietnam
On Map 31, seven points have been constructed at approximately 12 nautical
miles from the Vietnamese coast.21 The line “General Direction of the Coast” is
approximately the average of the lines between the seven points. This line
gives us an indication of what the general direction of the coast would be if we
chose the whole coast from the point of Ca Mau to the Cambodian border as
the proper segment to base a calculation on. If we compare this line with the
Vietnamese baselines of 1982, we can see that there is a divergence between
the two lines of approximately 57º. Since this deviation is much higher than the
15 degrees found in Norway, it could be concluded that the drawn baseline is
illegitimate.
Map 31 – Western Coast of Vietnam – General Direction22
The baseline drawn along the western coast of southern Vietnam does not
follow the general direction of the coast, and should therefore be redrawn in
conformity with international law.
21 These points are constructed in Microsoft Encarta World Atlas with the measuring tool available in this program. This example of state practice is therefore presented with reservations regarding the accuracy of the directional lines. 22 Corel Draw Map.
106
4. Landward Waters Characterised as Internal Waters
Article 7 (3) states that areas lying within the baselines must be sufficiently
linked with the land domain. This point also stems from the Fisheries Case,
though characterised as a fundamental consideration.23 Here, the Court
emphasised the close relationship existing between certain sea areas and the
land formations that divide or surround them.24 It is this close geographical
equality between land and water that is codified in Article 7 (3).
4.1. Textual Interpretation
The Convention text’s character is vague since it is based on a discussion of the
suitability of the internal waters regime in the areas discussed. It is therefore
generally agreed upon that it is not possible to develop any mathematical tests
to meet the condition of internal character.25 The Swedish statement to the
International Law Commission illustrates the meaning of sufficient and close
link:
[…] the expanse of water in question is so surrounded by land, including islands along the coast, that it seems natural to treat it as a part of the land domain.26
4.2. Contextual Interpretation
A legitimate straight baseline regime should decrease the complexity of the
territorial waters, but not increase the territorial sea of the coastal state unduly.
The purpose of the condition of following the coast’s directional trend is to
prevent abuse of straight baselines. The purpose of the condition of “the
landward waters internal character” is the same. The internal waters condition
concerns whether or not the distance between the baseline and the coastline, or
between the baseline and islands, is appropriate.
23 ICJ – The Fisheries Case , p. 133. 24 Ibid. 25 UNITED NATIONS, “Baselines:…”, section 57, p. 26. 26 International Law Commission, Yearbook of the International Law Commission 1955, 1955, volume II., p. 54.
107
4.3. Subsequent State Practice
The baselines of China, Burma and Cuba will be presented as illustrative
examples of state practice before concluding remarks and the discussion of the
baselines of Vietnam
4.3.1. China
In a declaration of 15 May 1996, China announced a straight baseline between
its mainland and Hainan Island (this baseline stretches westwards). Since there
are no overlapping claims within its 200-nautical mile perimeter, the baseline is
not of significance for the delimitation of median lines. However, the segment
cuts off the eastern approach to the Hainan Strait, thereby enclosing an
international strait and does make it possible for China to subsume parts of the
high seas as its EEZ.27 The enclosing of the Hainan Strait as Chinese internal
waters implies that international shipping cannot utilise it according to the
regime of innocent passage. Thus, this is an important violation of a
longstanding principle in customary international law: the freedom of
navigation.
27 US Dep. “Straight Baseline Claim: China.”, p. 15 (Annex 3, “Straight baselines Segments Lengths and Reference Charts”).
108
Map 32 – Baselines of Hainan Island and Southern China28
Baseline segment 31-32, which is 107.8 nautical miles long, connects the rock
of Dafanshi to the small island of Qizhouliledao (see Map 32).29 The segment
is situated up to 86 nautical miles off the coast,30 making it one of the most
radical baselines in the world today.31 It is quite possible that China can apply a
straight baseline in this segment.32 The legal issue here is whether or not this
baseline subjugates areas that are not characterised as internal waters. We have
already established that if there is such a deviation, it is clearly inappropriate
since it subjugates waters of the high seas as Chinese internal waters. It is
likely that, by enclosing such a huge area where no islands are situated, the
Chinese government is violating the Convention text of Article 7. This baseline
may therefore be seen as an example of a radical interpretation of the internal
waters condition.
28 Corel Draw Map. 29 US Dep. “Straight Baseline Claim: China.”, p. 8. 30 Microsoft Measuring Tool. 31 As shown in chapter III, the Vietnamese deviation from the mainland of 74.2 nautical miles is also regarded as one of the world’s most radical baselines. 32 Reference is made to p. 50.
109
This conclusion is also supported by the United States Department of
State, which emphasises that the baseline cuts off an international strait and
encloses a large part of the high seas as internal waters.33
4.3.2. Burma and Cuba
In 1977, the government of
Burma introduced a statute
establishing a system of
straight baselines. The most
egregious segment is the one
enclosing the Gulf of
Martaban. This segment is
more than 222 nautical miles
long, hence one of the longest
claimed in the world (see Map
33). The eastern two-thirds of
this baseline deviate by 60º
from the general direction of the Map 33 – Baselines of Burma34
delta’s coastline.35 At one point on this line, the nearest land is 75 nautical
miles away and the mouth of the Sittang River is over 120 nautical miles away.
The United States government protested on 6 August 1982. It is evident that a
line situated 75 nautical miles from the coast, without any feature in-between,
is not closely linked to the land domain.
In the same year, the Cuban straight baseline system had a 69-nautical
mile segment in the Bay of Cienfuegos. The United States protested as follows:
The baseline between points 101 and 102 is 69 nautical miles long and crosses an area that contains no islands whatsoever. Moreover, the coastline in this area is not deeply indented and cut into. It is also clear that the sea areas lying within the line is not sufficiently closely linked to the domain to be subject to the regime of internal waters.36
33 US Dep. “Straight Baseline Claim: China”., p. 8. 34 ROACH AND SMITH, ”United States…”, p.125. 35 Ibid., p. 123. 36 State Department Note dated July 5, 1983, to the Cuban Interests Section of the Embassy of Czechoslovakia, found in ROACH AND SMITH, “United States…”, p. 125.
110
Consequently, this are examples of diverging state practice that does not
conform to international law. However, this practice alone is not sufficient to
establish a new trend in international law.
4.4. Concluding Comments
The baselines identified as illegitimate in this chapter would probably not have
been used as point of departure for any maritime delimitation and would have
been rejected by an international tribunal asked to settle the disputes involving
these baselines.
4.5. Vietnam
If we look back at the western coast of Vietnam, there are several islands inside
the baseline proposed in this thesis (see Map 28) that are rather close to each
other. Because of the presence of such numerous islands, it is likely that in this
coastal segment, the baseline proposed in this thesis does not violate the rule
that internal waters must be closely linked to the land.
Map 34 – Southern Coast of Vietnam37
The baselines off the southeastern coast of Vietnam have their basepoints
situated on the islands of Bay Chan, 51.5 nautical miles from the terra firma
111
(A5), and Hon Hai, 74.2 nautical miles (A6) from the terra firma.38 It should
first be repeated that these baselines would probably not pass the preliminary
tests, and must therefore be rejected before it is tested whether the area
enclosed is sufficiently linked to the land domain. These baselines, which cover
a coastline of 275.1 nautical miles, are opposite the southern part of the
disputed Spratly Islands.39 If we assume that the islands in the Spratly area do
not have a capacity to generate a continental shelf or EEZ on their own, then
the Vietnamese EEZ or continental shelf claim would cover almost the entire
island group, thus creating a huge overlap with the claims of Malaysia, Brunei
and the Philippines. They also have a bearing on the overlapping claims
between Vietnam and Indonesia, north of Natuna. The significance of the
Vietnamese baselines should therefore not be underestimated. If the baselines
were drawn from the low-water mark of the coast,40 an area of up to 31,850
square nautical miles would have to be left out of the Vietnamese claim (see
map 35).41 This could make an eventual delimitation process less complex, and
make it easier for the parties to reach an understanding. Here, the Vietnamese
waters are entirely without islands, so the distance between the basepoints and
the mainland are only constituted by sea. It is therefore highly unlikely that
these baselines satisfy the internal waters condition. The westernmost of the
Vietnamese baselines of 1982 is probably illegitimate due to the internal
character condition (A1-A2 and A5 – A6).
The straight baseline along the west coast of Vietnam also has the
basepoint A6 as its starting point, which is located 74.2 nautical miles from the
coast. On the landward side there is one tiny islet called Da Cao.42 It is
therefore also likely that this segment must also be rejected.
37 Corel Draw Map. 38 US Dep. “Straight Baselines: Vietnam”, pp. 4 and 6. 39 Ibid., p. 6. 40 According to UNCLOS Article 5. 41 REISMAN AND WESTERMAN, ”Straight Baselines…”, p. 107. 42 Vietnamese name found in BAN DO HANH CHINH.
112
– Map 35 Extension of Vietnam’s EEZ due to Radical Baselines 43
5. Overall Evaluation of Economic Interests Peculiar to the Region
The Fisheries Case emphasised that economic interest peculiar to the region
could moderate the geographical criterion for utilising straight baselines. This
has now become an integrated part of international law and is found in
UNCLOS, Article 7 (5): “Account may be taken, in determining particular
baselines, of economic interests peculiar to the region concerned”. It is
emphasised that if the coastal state has fishery interests in its waters close to the
mainland or offshore islands, it could draw baselines further seawards to secure
these interests.
Furthermore the coastal state always has an interest in having full
jurisdictional control of its immediate waters. The coastal states will therefore
always expand their internal waters within the limits of international law to
obtain such an area. It should be stressed, however, that the consideration of
economic interests was emphasised in the Fisheries Case on the basis that such
strong interests had existed along the Norwegian coast for centuries. “Long
usage” does not, however, necessarily require such a lengthy time-scale.44 It is
important to define long-standing usage of resources since this may generate an
“historical title”, but this discussion will not be taken up in this thesis.
43 REISMAN AND WESTERMAN, ”Straight Baselines…”, p. 108. 44 UNITED NATIONS, “Baselines:…” , section 59, p. 26.
113
Economic interests peculiar to the region cannot be used to justify
straight baselines in the absence of indented coasts or fringing islands; they can
only be used to determine the alignment of parts of the baseline system where
either or both of the preliminary tests have been satisfied.45
The provision stated in Article 7 (5) is unchanged from the 1958
Convention. In 1958 there were no EEZs and the territorial sea was only 3
nautical miles wide. The breadth of the territorial sea was strongly debated in
political and legal circles, and the legal position of the 3-mile zone was quite
uncertain at the time. However, coastal states were dependent on sea resources
to maintain coastal habitation and production. With only a 3-nautical mile
territorial sea to secure coastal interests, the states had a legitimate reason to
claim full jurisdiction in some areas, and thus to push the territorial sea
somewhat seawards. This justifies the condition we know as Article 7,
paragraph 5, which opens up for an overall evaluation of the alignment of
straight baselines when economic interests’ peculiar to the region are present
and the geographical criteria have legitimised a straight baseline, not
sufficiently far out from the mainland coast, to enclose the full area of
economic interests peculiar to the region.
However, since the EEZ principle was ratified as a part of UNCLOS,
giving coastal states economic control of living resources within a 200-nautical
mile zone, all economic interests at sea are being satisfied by this new legal
regime. Consequently, the question the thesis will try to answer is whether the
development of the EEZ regime makes the condition of economic interests
peculiar for the region irrelevant.
The southeast baseline of southern Vietnam, which is 161.4 nautical
miles long and situated more than 70 nautical miles from the coast, is again a
case of point (Map 34).46
As the map shows, Vietnam has drawn a straight baseline far from the
coast where it is dubious whether the coastline fulfils any of the preliminary
45 Ibid., section 58, p. 26. 46 US Dep. “Straight Baselines: Vietnam”, p. 6.
114
criteria. But, it is possible that Vietnam could legitimately drawn a less radical
baseline in this segment, due to the indentations of the Mekong River delta
(Article 7 (2)).47 The question is now whether there are economic interests
peculiar to the region that can be used to legitimise the current trajectory of the
baseline. According to researchers studying Vietnamese fisheries, the area is
shallow48 and contains large fishing resources and a diversified biological
system, which makes the area important for seafood resources.49 Since the
criteria for appropriate basepoints are not fulfilled, one might argue that the
economic importance of this area legitimises a straight baseline, if this is of
high importance in order for Vietnam to secure these resources. The question,
then, is whether the interest of securing seafood resources can be maintained by
EEZ. If this is the case, the purpose of the “economic” criterion disappears.
Within an EEZ system, Vietnam will need to share some of its fishing
surplus with other states in the region who have title to receive fishing quotas
after UNCLOS, Article 62, on the utilisation of living resources. Consequently,
the coastal state does not have the same absolute control of the EEZ area, as it
would in waters enclosed by a straight baseline. However, since the coastal
state only needs to share its fishing surplus, not allow others to actually fish,
the EEZ regime should be considered sufficient to give the coastal state control
of its needed resources. The resources on the landward side of the Vietnamese
baselines will accordingly be sufficiently secured by an EEZ. This gives
support to not liberalising the geographical criteria in this area and, in general,
gives the “economic interest” condition substantially less weight.
The question of fiscal crime and environmental hazards remains. These
must be seen in relation to other interests such as freedom of navigation and
47 UNCLOS Article 7 (2): Where because of the presence of a delta and other natural conditions the coastline is highly unstable, the appropriate points may be selected along the furthest seaward extent of the low-water line and, notwithstanding subsequent regression of the low-water line, the straight baselines shall remain effective until changed by the coastal State in accordance with this Convention. See PLATZÖDER. 48 The depth in this area is from 10 to 33 fathoms (approximately 18 to 60 metres), found on DEFENCE
MAPPING AGENCY HYDROGRAPHIC / TOPOGRAPHIC CENTER (Base: Chart No. 550, 6. Edition. Washington D. C.) (15 May 1982). 49 Personal communication with researcher Berit Aasen formerly at NIBR, University of Oslo, February 1999.
115
overflight, and the distribution of resources given to benefit mankind. In
relation to the latter interest, it should be noted that the territorial sea is now
expanded to 12 nautical miles, thus giving the coastal state extended
jurisdictional control, while at the same time giving seafaring nations the right
to innocent passage. In addition, there is an extended 12-nautical mile
contiguous zone, measured from the border of the territorial sea, making the
combined territorial sea and contiguous zone 24 nautical miles. This should be
enough to maintain the coastal state’s interests with regard to security, fiscal
control and environmental hazards. It also gives support for adding less weight
to the consideration of “economic interests peculiar to the region”. The
question of relevance for the economic considerations in the straight baseline
regime is still not answered. Strong support has been found, however, for
regarding the EEZ and other extended maritime zones as replacements of the
old consideration for “economic interests peculiar to the region”.
As a conclusion, it is suggested that the influence and importance of
“economic interests”, for coastal states when delimiting their territorial sea,
must be re-evaluated in the context of the EEZ regime ensured by UNCLOS,
and given less weight than in the past.
6. Conclusion
Reference is made to Map 36, which illustrates the conclusion reached in this
thesis. These conclusions are supported by other researchers claiming that the
areas east of Nha Trang between 11 and 14° South latitude are the only ones
that might be justified by customary international law.50 Prescott, who is
particularly critical of the Vietnamese Declaration, concludes that sections of
the baselines are plainly in breach of proposed and existing rules for drawing
baselines. He points out that since the sections of the coastline concerned are
not deeply indented, the lines must be based on the concept of fringing islands.
In addition, I find support for the above results from Van Dyke and Valencia.
50 Valencia and Van Dyke. “Vietnam's National…”, p. 222.
116
These scholars also emphasise that where the coast is clearly not indented, the
coastal state must base their claim on the “fringe of islands” criteria.
Map 36 – Legitimacy of Vietnamese baselines51
They also find that the Vietnamese baselines of the southern coast up to Dao
Con Co are inappropriate, as they do not sustain any of the preliminary tests.52 I
therefore conclude that while a limited use of straight baselines may be
justified in certain portions of the coastline, it would be extremely difficult to
justify all the baselines presently claimed by Vietnam.53
51 Corel Draw Map. 52 Valencia and Van Dyke. “Vietnam's National…”, p. 221. 53 This is also the conclusion of Valencia and Van Dyke in “Vietnam’s National…” , p. 213.
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Chapter V
Conclusion
1. Should Vietnam Redraw its Baselines?
The conclusion will be fully concentrated to discussion of whether or not
Vietnam should redraw its baselines in line with a more conservative
interpretation of Article 7.
This thesis has established that most of the 1982 Vietnamese baseline
system is inappropriate. The final question is whether it is advisable for
Vietnam to redraw its baselines so they can achieve a system that is consistent
with the conditions of Article 7. Excessive claims have been retracted by states
in the past, for example Germany in 1994 and Guinea.1 The Vietnamese
declaration accompanying its 1994 instrument of ratification of UNCLOS
informed that Vietnam had taken intergovernmental steps that allowed for
reconsideration of its baseline system.
The National Assembly entitled [authorises] the National Assembly’s Standing Committee and the Government to review all relevant national legislation to consider necessary amendments in conformity with the 1982 UN Convention on the Law of the Sea, and to safeguard the interests of Vietnam… localities where the coastline is deeply indented and cut into, […] the method of straight baselines […] may be employed in drawing the baseline from which the territorial sea is measured.2
Should the Vietnam National Assembly’s Standing Committee or the
government use their authorisation to redraw the Vietnamese baselines? To
answer this question one may look at (1) development of a regional regime and
if Vietnam therefore could retain its radical baselines. (2) The long-standing
principle of pacta sunt servanda (see below) and Vietnam’s international
reputation. (3) Its capability of international settlements, and (4) the possible
undermining of Vietnamese interests.
1 ROACH AND SMITH, “United States…”, p.146. 2 UN. Multilateral Treaties Deposit 886; UN, LOS, BULL, No. 28, p. 5 (1995), see ROACH AND SMITH, “United States…”,, p. 146, footnote 137.
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1.1. A Regional Straight Baseline Regime?
Vietnam, China, and Taiwan have all applied a radical interpretation of
UNCLOS Article 7.3 The question now is whether they have developed some
mutual principles for drawing baselines that deviate from the rules in
UNCLOS. The development of a regional regime is conceivable, and it is of
course also conceivable that South China Sea states could modify customary
law by applying a new consistent state practice. An understanding of a legal
provision can change over time due to new political tendencies or
developments, differentiated importance of key considerations or change in
power relations between states.
Such changes have been seen in some major developments in the Law of
the Sea since the 1958 Convention. The expansion of the limit for the territorial
sea to 12 nautical miles was implemented as international custom after several
states had adopted a 12 nautical mile zone without bases in international law.
This way of changing the legal position of a regime allows international law to
change at the same pace as relations between states change. In a legal system
with equal subjects without any judicial power controlling an effective sanction
system, it is even more important to have system flexibility. Flexibility makes
it possible to develop rules after the requirements of its subjects, thereby
counteracting violation of the law. Is it accurate to claim that the legislation
identified in this thesis, from all over the world, is an expression of a need for
change? The discussion of this question will ultimately add up to a question of
whether UNCLOS Article 7, or the interpretation of it, should be changed. The
following subjects will be discussed: (1) state practice in drawing baselines in
the South China Sea, (2) protests against baselines in the South China Sea, and
(3) the practical use of drawn baselines.
3 Malaysia as mentioned is said to look for ways to legitimise its own radical baseline system.
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1.1.1. State Practice in the South China Sea
The practice of the regional states has some similarities. First, it does not seem
necessary to fulfil any of the preliminary tests to draw straight baselines,
although this is in direct conflict with the UNCLOS provisions. This is visible
along almost the entire Vietnamese coastline, around the Chinese island of
Hainan, and in the baselines drawn around Taiwan.4
Second, there is a general trend among littoral states anywhere in the
world to draw straight baselines as far seawards as absolutely possible. This
means that they use the outermost island or reef as a basepoint in a straight
baseline system encompassing the whole of their coastline. Vietnam, China,
Taiwan and Thailand do this; Vietnam being the state with islands furthest
away, producing the most radical example of a violation of the straight baseline
regime.
Third, there seems to be some restrictions, in that none of the states
include offshore entities situated at a very great distance from the mainland in
their systems. Neither China nor Taiwan includes the Pratas reef or the Paracels
inside their mainland baseline system. The Paracels have yet their own
independent baselines. Vietnam does not include its occupied islands in the
Spratlys. Neither do Malaysia or Taiwan.
Finally, by studying the littoral states’ baseline legislation, one finds that
there is no persistency in the baseline being in the coast’s immediate vicinity,
or in departing from the general direction of the coast, or that the waters
enclosed by it should be subject to the regime of internal waters. There are, of
course, some baseline segments that do fulfil these requirements, such as south
of Hong Kong, mid-east of Vietnam and on the west coast of Taiwan.
However, in all these localities it is not possible to draw the baseline further
seawards because there simply are no islands or reefs to be used as basepoints.
This implies that the main objective for the states is not to follow the directions
given in the Convention, but to draw the baseline, within some kind of reason,
4 Even though the baselines of Taiwan has not been disucssed properly in this thesis, it is evident that they have drawn them in a similar fashion to those of Vietnam.
120
as far seawards as possible. It should be emphasised that the cases of liberal
state practice in this thesis, although relatively numerous, are not an expression
of clear conditions for a new straight baseline system. Nevertheless, regionally
we see attempts by states not only to utilise the existing system to a maximum
by exploiting the vagueness of the text, but also to go far beyond any legitimate
interpretation of it. Thus, one might claim that regional practice in the South
China Sea have changed, or are about to change, the rules in Article 7.
1.1.2. Protests against Baselines in the South China Sea
Even if the drawing of baselines is a national responsibility, the baselines have
an impact on ocean delimitation, which gives the legitimacy of the drawn lines
an international aspect. Through protest, states express their dissatisfaction
with other states’ baselines, although baselines as such are not subject to
international negotiation. Baselines that draw widespread protest are,
presumably, less likely to be accepted as a starting point for negotiations about
maritime zones from baselines that do not draw protests.
When discussing if a regional baseline regime has emerged there are
two issues of acceptance that are relevant. First, state practice in the region
should be coherent. Coherence is shown by mutual acceptance of neighbouring
states’ methods for drawing baselines. Consequently, South China Sea states
should have recognised each others’ baselines in order for us to say that a
regional regime has emerged. Second, since the baselines are not considered
valid by states objecting to them, the development of a regional regime would
be more certain if South China Sea baselines had not drawn protests from states
outside the region. In the following paragraphs, protests against baselines in the
region will be presented. The discussion is not complete.
Vietnam issued its baseline declaration on 12 November 1982. On 30
November 1982, China protested that these baselines were not drawn in
accordance with international law.5 The United States objected to the same
5 May be found in UN Docs A/37/682-s/15505 of Nov 30, 1982, see ROACH AND SMITH, p. 102, footnote 85.
121
lines on 6 December 19826 and Thailand dispatched its objections on 12
December 1982.7 France objected on 5 December 1983,8 while the Federal
Republic of Germany also protested Vietnam’s claim in June 1984.9 It is clear,
therefore, that Vietnam has met massive protest regarding its baseline system
from both neighbouring countries in the region and several states considered
part of the international community. These protests indicate that Vietnamese
baselines should not be seen as a constitutive element strong supportive
legislation to a regional baseline regime.
China issued its baselines by a declaration as recently as 15 May 1996.10
As mentioned, these baselines have been the subject of protests from 25 states
around the world,11 including the United States, the Philippines and Vietnam12;
other protests have not been made public.13 Regional protests do not lend
support to the development of a regional regime, and when 25 states object to
the baselines, this shows that the international community also rejects the
Chinese baselines as illegitimate.
Taiwan has recently made public its baseline claim, which to date has
not been made the subject of protests. However, due to Taiwan’s uncertain
status and the fact that it is not a UN member it is difficult to see the absence of
declared protests as an indication of acceptance.
Conclusively, the regional states and the international community have
asserted their rights to the drawn baselines of both Vietnam and China. Hence,
it is unlikely that one can claim that the practice of these states should have
created a new regional regime for drawing baselines.
6 May be found in US State Department telegram 334675, Dec. 1, 1982, see ROACH AND SMITH, p. 102, footnote 85. 7 May be found in UN Docs A/40/1033 of Dec 12, 1985, See Roach, p. 102, footnote 85. 8 UN, Current Developments No. I, at 146 (UN Sales No. E87.V3, 1987), see ROACH AND SMITH, p. 102, footnote 85. 9 ROACH AND SMITH, p. 102, footnote 85. 10 Law of the Sea Bulletin, No. 32, 1996, p. 37, see Tullio Scovazzi. “The Establishment…”, p. 446. 11 See Chapter I, p. 3. 12 Law of the Sea Bulletin, No. 32, pp. 88 and 91. See Roach, “Salient Issues…”, p. 436. 13 Ibid., footnote 4.
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1.1.3. Practical Use of Baselines in the South China Sea
The legitimacy of the baselines drawn in the South China Sea will also depend
on their being utilised as intended. If the baselines were to function as starting
points in delimitation negotiations or in other ways be used in
intergovernmental communication, it would indicate that they had been to
some extent accepted. Such usage would support the notion of a new regional
regime. There are two negotiation processes that are relevant to this problem.
First, the treaty between Thailand and Vietnam that delineates maritime zones
in the Gulf of Thailand, and second, the ongoing negotiations between China
and Vietnam regarding demarcation of the Gulf of Tonkin.
The Gulf of Tonkin is between China and Vietnam. In the peace talks
following the Sino-Vietnamese border war of February 1979, China was
apparently prepared to share the Gulf of Tonkin area “half and half”, but
Vietnam relied on a line drawn on a map attached to the 1887 Sino-French
Convention that defined which islands in the Gulf belonged to Indochina and
which to China. Thus, negotiations continue.14 Vietnam’s goal in the
negotiation process was also to claim the whole area as historic waters together
with the Chinese. The two states could then draw a closing line from Vietnam
to Hainan, ensuring that the whole of the Tonkin Gulf was under full
jurisdictional control by either state. However, China did not accept this
Vietnamese proposal. The historical claim is unlikely to achieve international
recognition due to its former status as high seas. The sea is surrounded by more
than one state and the historical claim itself is uncertain. China and Vietnam
have issued mutual declarations that the dispute will be settled before the end
of the year 2000 by friendly means. They are now in the final stage of
negotiations and one question is whether they should use Tiger Island (Con
Dao) as a starting point for the calculation of a median line. If they do not it
would be neglecting the Vietnamese baselines ending at Tiger Island. As the
Hainan baselines are drawn close to the coast they would certainly not be
problematic. However, Tiger island is situated some 14 nautical miles off the
14 After information in Valencia and Van Dyke. “Vietnam's National…”, p. 224.
123
Vietnamese coast, and is not accepted by China as a point of measurement in
the proceedings. This shows that their protest of the Vietnamese baselines from
1982 has not lost any of its relevance, and shows that the practical conditions
for utilising the existing baseline is non-existent.
The final agreement for delimiting the Gulf of Thailand between
Vietnam and Thailand was signed on 9 August 1997 and subsequently ratified
on 28 February 1998.15 Dr Nguyen emphasises that the agreement is the first to
be concluded in South East Asia since the ratification of UNCLOS in 1994 as
well as being “the first agreement on the delimitation of all the maritime zones
belonging to the coastal states concerned in the region” and “the first
agreement ending a marine dispute in all aspects in the Gulf of Thailand.” The
question here was whether the Vietnamese baselines on the west coast,
basepoints 1–0, should be used as the point of departure when finding the
median line between the two countries. According to Schofield this was not the
case.16 His belief from analysing the charts was that both the Vietnamese and
Thai straight baselines were ignored, and in his opinion they are equally
flawed.17 Thailand did not accept the Vietnamese baselines and insisted that the
point of departure of the median line should be the terra firma of Vietnam.
This indicates that the Vietnamese baselines were not proper for starting
negotiation on maritime delimitation, one key reason being the lack of a
complex coastline. Conclusively, the Gulf of Thailand agreement supports a
15 Bangkok Post, 29/5/98. Voice of Vietnam (Hanoi, 15/2/98 (SWB FE/3153) reported that instruments of ratification would be exchanged during Thai Foreign Minister Surin Phitsuwan’s visit to Vietnam on 27-28 February 1998. It was subsequently reported in The Nation on 3 March that the exchange had been made and the agreement had gone in to affect “last weekend” (28 February-1 March 1998). As the Thai Foreign Minister left Hanoi on 28 February (Voice of Vietnam, Hanoi, 28/2/98 (SWB FE/3166)) it can be deduced that the ratification took place on that day (See also Dr. Clive Schofield, International Boundary Research Unit (IBRU), Durham, UK, Chapter 6.5 Thailand – Vietnam: Maritime Boundary Agreement, a part of Dr. Schofields thesis, sent by mail 24. February 2000). 16 Why is the Thai-Vietnamese boundary is aligned as it is? Of the total area, 1,718nm2 (5,893km2), of the Thai-Vietnamese overlapping claims, Thailand secured 1,145nm2 (3,928km2) (66.6%) while Vietnam secured 573nm2 (1,965km2) (33.3%). It therefore appears that Thailand and Vietnam agreed to an uneven division of their overlapping claims area with two-thirds being allotted to Thailand and one-third to Vietnam. Dr. Schofield argues that thus, it is entirely appropriate that Ko Losin (island on the Taiwense side of the gulf) is wholly discounted and that Tho Chu island (Close to Vietnam’s basepoint 0) influences the delimitation equation [with obviously only partial effect on the equidistant line]. See Chapter 6.5 Thailand – Vietnam: Maritime Boundary Agreement, a part of Dr. Schofields thesis, sent by mail 24. February 2000. 17 E-mail from Dr. Clive Schofiled 24 February 2000.
124
solution where it cannot be said that a regional radical baseline regime has
developed.
The two examples show that when it comes to practical appliance of
straight baselines, the regional states act in accordance with their earlier
protests against neighbourly baselines. This is an indication of not only the
inappropriateness of the baselines themselves, but also the notion of a liberal
system for drawing straight baselines in the South China Sea.
Finally, it should be emphasised that even if there are similarities in the
way the regional states draw their baselines, the massive protests against them
from the regional states themselves and their failure to use the baselines in
negotiations gives strong support for rejecting the notion that a regional regime
for drawing radical baselines has emerged. As the notion of a regional regime
is not sustainable, Vietnam will not jeopardise any regional regime by
redrawing its baselines.
1.2. Pacta Sunt Servanda
A treaty in force is binding upon the parties and must be performed by them in
good faith.18 This leading principle of pacta sunt servanda is the cornerstone of
international relations and ensures that treaties and agreements between states
function as intended. The fact that some states, Vietnam included, do not
perform the obligations and responsibilities of UNCLOS as intended,
influences the legitimacy of UNCLOS as a global treaty for governing
maritime areas.
One might argue that a single legal area, such as that of the straight
baseline regime, is not important for the overall international reputation of a
state’s willingness to uphold its international obligations. Based on the liberal
drawing of baselines, it could appear that Vietnam saw UNCLOS, Article 7, as
less important than other provisions of international law. The legal regime of
baselines could therefore be interpreted more easily than the Vienna
18 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, FOURTH EDITION (Oxford University, Oxford) (1992), p. 616.
125
Convention calls for. However, such practices could be used as precedents for
liberal interpretation by other states also using baselines or even in areas more
important than that of straight baselines. Since pacta sunt servanda is the basis
for the legitimacy of international law, one could say that UNCLOS, or indeed
international law, is undermined by such state practice. This thesis claims that a
questionable subjective standpoint of a country could be part of a legislative
disintegration of a legal regime. The straight baseline regime is a good example
of where state practice shows a clear trend towards making the interpretation of
Article 7 more liberal than it was intended when developed in the 1950s.
By not allowing liberal interpretations of any agreed Convention
between states and upholding a strict appliance of pacta sunt servanda, the
legitimacy of UNCLOS could well be preserved. If this is not applied, the
system of which not only the weakest and smallest states are given protection
and legitimate rights towards larger states, but also the very same system that
secures littoral states’ control over enormous resources in and under the seas,
could be undermined.
Vietnam, as a relatively small state, would gain especially due to the
protection of small states that UNCLOS provides. By redrawing its baselines,
Vietnam would show regional states and the international community that it
has taken its obligations seriously not only in matters of the Law of the Sea, but
also generally towards international obligations. The principle of pacta sunt
servanda gives due support for advising Vietnam to redraw its baselines.
1.3. Capability of International Settlements
Vietnam has negotiated agreements with Thailand and Malaysia, and they are
seeking to reach an agreement with China on the Gulf of Tonkin. This is all
part of a Vietnamese attempt to consolidate its territorial position and influence
over maritime space. Hopefully, attempts will be made to reach an agreement
over the dispute in the central part of the South China Sea some time in the
future. During all of these negotiations the baseline is intended to be a
simplification of the coastline, making negotiations easier for the involved
126
parties. If the baseline is drawn incorrectly, efforts must be made to clarify that
one or both parties do not accept the others point of departure. Not only can
these efforts be time consuming, but also negatively influence the negotiation
climate by starting off negotiations with a dispute where one or both countries
must retreat on matters decided by national legislation. Conclusively, the
Vietnamese baselines in their current position are an additional problem in
negotiations that are already complex for other reasons. If Vietnam was to
retract its excessive claims and redraw its baselines to an internationally
acceptable standard, the negotiations could be resolved more easily. In
addition, the reputation of Vietnam as a party living up to its international
obligations, could be used positively by emphasising principles of international
law as the only acceptable compromise. It can therefore be assumed that
Vietnam’s capability to reach international settlements on problematic
maritime issues would be facilitated by its redrawing of baselines.
1.4. Possible Undermining of Vietnamese Interests
Vietnam’s interests as an underdeveloped country are, among others, to open
up to international commerce, and attempt foreign investment in exploiting
resources under the seabed and living resources in its adjacent waters. This
package of measures is developing needs for maritime delimitation agreements
that ensure all involved parties which territories that they have access to in
order to render possible co-operation on maritime management. Vietnam’s
reputation as a state living up to its international obligations by upholding
pacta sunt servanda, its positive role as settlement maker with its neighbours
and with properly drawn baselines as a decent starting point for negotiations,
could give such efforts on an agreement for the Vietnamese waters a better
chance of succeeding. Redrawing of Vietnam’s straight baseline system could
improve the efforts the Vietnamese government has made for safeguarding its
interests in the maritime sphere. If the region is not able to start co-operation
and negotiation on maritime delimitation its possibility to exploit living and
non-living resources in the sea will be restricted. It is therefore in Vietnam’s
127
direct interest that intergovernmental talks on the extremely problematic issues
of delimiting the central parts of the South China Sea commence. Every
measure that can improve relations in the region is one step towards a solution.
Redrawing of baselines will remove the disagreement on this issue between the
states, thereby possibly creating a better foundation for negotiations.
2. Concluding Comments
Even if Vietnam itself promulgates its laws and regulations according to its
illegitimate baseline regime over fishing vessels, shipping and fiscal crime, the
baselines will not be relevant when engaging another state. Likewise, the
baselines will not be valid in any maritime delimitation negotiations with states
with overlapping maritime claims. Other regional states or states that are part
of the international community will not accept any illegal point of
measurement that gives Vietnam an advantage when, for example finding the
median line. One might say that today’s baselines indeed leave the territorial
sea border without any complexities, but nevertheless the straight border will
not be useful for its purposes. One might therefore claim that radical baselines,
like those of Vietnam, do simply not fulfil their function as baselines for
maritime zone delineation or for increasing the area of internal waters. The
political reasons for drawing liberal baselines instead weaken the state’s
position rather than increasing its possibility for governing its maritime areas in
a proper way. It is therefore recommendable that Vietnam redraw its baselines
as the National Assembly has opened for.
When analysing which legal position is legally justifiable within the
framework of Article 7, and what the implications of such a position are, an
individual state is left with unnecessarily wide discretionary power to distort
the international norm, making settlements of disputes on the basis of a correct
interpretation of law a mere falsehood or matter of confusion.19 This thesis
refute the idea that a regional regime of straight baselines is evolving, and that
19 KRIANGSAK KITTICHAISAREE, THE LAW OF THE SEA AND MARITIME BOUNDARY DELIMITATION IN
SOUTH-EAST ASIA (New York: Oxford University Press) (1987), p. 4.
128
one can justify Vietnam’s baselines in international law. The simple truth is
that Vietnam’s state practice is not in accordance with international law and has
partly for this reason, not fulfilled its function. Thus, it might be useful for
Vietnam, as well as the other regional states, to respect the rules established in
UNCLOS, and draw their baselines accordingly.
i
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