STRAIGHT BASELINES OF VIETNAM

Transcription

1 Dissertations & Theses No. 12/2000 STRAIGHT BASELINES OF VIETNAM Johan Henrik Nossum Department of Public and International Law University of Oslo

2 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

3 2000 Author, Centre for Development and the Environment, University of Oslo All rights reserved. ISSN X The views expressed herein are those of the author and should not be attributed to the Centre for Development and the Environment.

4 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 I

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6 Table of Contents Straight Baselines of Vietnam I INTRODUCTION 1. INTRODUCTORY COMMENTS THE SOUTH CHINA SEA REGION 3 2. THE MARITIME CONFLICT IN THE SOUTH CHINA SEA CLAIMS Historical Claims Are the Sovereignty Claims Worth Discussing? MARITIME CLAIMS BASED ON THE 1982 CONVENTION Vietnam s Baseline Legislation Vietnam s Claim to Maritime Zones Presentation of Overlapping Claims POLITICAL ISSUES RELATED TO MARITIME DELIMITATION AND OCEANIC GOVERNANCE HYDROCARBON RESOURCES SEA-LANES OF COMMUNICATION (SLOCS) FISHERIES THE ENVIRONMENT CONTRADICTORY NATIONAL AND SHARED REGIONAL INTERESTS Contradictory National Interests in the Region Regional Interests Versus to the Interests of the International Community POLITICAL IMPORTANCE OF THE BASELINE ISSUE RATIFICATION OF UNCLOS BY THE REGIONAL STATES CUSTOMARY LAW METHODOLOGY OF STRAIGHT BASELINES ANALYSIS OF STRAIGHT BASELINES ARTICLE THE FISHERIES CASE AND THE STRAIGHT BASELINE REGIME GENERAL DEFINITIONS COASTLINE LOCALITY II DEEPLY INDENTED AND CUT INTO 1. THE PRELIMINARY GEOGRAPHICAL TESTS DEEPLY INDENTED AND CUT INTO DEEPLY INDENTED Textual Interpretation of Deeply Indented Contextual Interpretation CUT INTO Textual Interpretation: Cut Into Equals Several Contextual Interpretation The Juridical Bay Regime s Impact on the Cut Into Criterion OBJECT AND PURPOSE OF ARTICLE Freedom of Navigation THE GENERAL PRINCIPLE OF NATIONAL SOVEREIGNTY SUBSEQUENT STATE PRACTICE The South China Sea Region China Taiwan State Practice Outside the Region Costa Rica Iran Colombia Egypt III

7 Concluding Comments on Subsequent State Practice EQUITY DE LEGE FERENDA Straight Baselines of VIETNAM INDENTATIONS COVERAGE OF THE COAST THE CASE OF EASTERN VIETNAM TEXTUAL INTERPRETATION CONTEXTUAL INTERPRETATION THE BASELINE OF EASTERN VIETNAM CONCLUSION CONCLUSION ON DEEPLY INDENTED AND CUT INTO. 63 III FRINGE OF ISLANDS IN THE COAST S IMMEDIATE VICINITY 1. INTRODUCTORY COMMENTS ISLANDS IN THE STRAIGHT BASELINE REGIME TEXTUAL INTERPRETATION OF FRINGE OF ISLANDS ISLANDS THAT FORM A UNITY WITH THE MAINLAND ISLANDS THAT FORM A SCREEN OF THE COAST PREPARATORY WORK AND SUBSEQUENT UNDERSTANDING FRINGE OF ISLANDS SCREENING THE COASTLINE Object and Purpose of Article Concluding Comments Subsequent State Practice State Practice Outside the South China Sea Concluding Comments BASELINES OF VIETNAM IN THE COAST S IMMEDIATE VICINITY TEXTUAL INTERPRETATION OF IMMEDIATE VICINITY CONTEXTUAL INTERPRETATION THE PURPOSE OF ARTICLE SUBSEQUENT STATE PRACTICE The South China Sea Region China Taiwan State Practice Outside the Region Baselines of VIETNAM CONCLUDING COMMENTS THE DIRECTIONAL TREND OF THE OUTERMOST ISLANDS METHOD FOR FINDING THE DIRECTIONAL TREND DIRECTIONAL TREND AND LEGAL CUSTOM THE BASELINES OF VIETNAM CONCLUDING COMMENTS IV APPROPRIATE BASEPOINTS 1. INTRODUCTION LEGITIMATE BASEPOINTS BASEPOINTS ON LAND ABOVE OR ON THE LOW-WATER MARK DOES THE BASELINE DEPART TO ANY APPRECIABLE EXTENT FROM THE GENERAL DIRECTION OF THE COAST? TEXTUAL INTERPRETATION CONTEXTUAL INTERPRETATION AND THE PURPOSE OF ARTICLE SUBSEQUENT STATE PRACTICE Cuba and Mexico Concluding Comments THE BASELINES OF VIETNAM LANDWARD WATERS CHARACTERISED AS INTERNAL WATERS TEXTUAL INTERPRETATION CONTEXTUAL INTERPRETATION SUBSEQUENT STATE PRACTICE China IV

8 Burma and Cuba CONCLUDING COMMENTS VIETNAM OVERALL EVALUATION OF ECONOMIC INTERESTS PECULIAR TO THE REGION CONCLUSION V CONCLUSION 1. SHOULD VIETNAM REDRAW ITS BASELINES? A REGIONAL STRAIGHT BASELINE REGIME? State Practice in the South China Sea Protest against Baselines in the South China Sea Practical Use of Baselines in the South China Sea PACTA SUNT SERVANDA CAPABILITY OF INTERNATIONAL SETTLEMENTS POSSIBLE UNDERMINING OF VIETNAMESE INTERESTS CONCLUDING COMMENTS V

9 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 VI

10 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 VII

11 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 , 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 Tullio Scovazzi, The Establishment of Straight Baselines System: The Rules and Practise. ( ) 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

12 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 In approaching the 50 th 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 ( ). 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 Ibid., p Ibid, p

13 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 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 China 6 (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 There are four international straits 10 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) < 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 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 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. 3

14 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 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. 4

15 360 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 Ibid. 17 According to Encyclopaedia Britannica. 18 Stein Tønnesson, "Resolving, p

16 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 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 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 Reef 20 ). 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 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 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 Stein Tønnesson, "Resolving, p US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER. THE SPRATLY ISLANDS AND PARACEL ISLANDS (Number ) (R00118) Sheng Lijun, Beijing and the Spratly s, Issues and Studies, volume 31, number 7 (July 1995): (Hereafter Sheng Lijun, Beijing and the Spratlys ), p Stein Tønnesson, "Resolving, p VALENCIA, VAN DYKE AND LUDWIG, Sharing, p 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. 6

17 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 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): (Hereafter Valencia and van Dyke. "Vietnam's National ), p The two states have declared that negotiations on the Gulf of Tonkin shall be closed before the end of the year An agreement on the land boundary in the area was signed 31 December The negotiationon maritime issues was first started in January 2000, thus negotiations continue. 26 Daniel J. Dzurek, "The Spratly, p VALENCIA, VAN DYKE AND LUDWIG, Sharing, p VALENCIA, VAN DYKE AND LUDWIG, Sharing, p

18 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 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 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 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 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. 8

19 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 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 Map 2 Straight Baselines of Vietnam 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 UNCLOS Article UNCLOS Articles 55 and UNCLOS Article Statement of 12 May 1977 on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf of Vietnam, found in Foreign Broadcast Information Service (FBIS), Daily Report: Asia & Pacific (24 May 1977). 9

20 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 waters 38 (see Map 2) 39. The Vietnamese baselines are up to 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 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): (Hereafter Robert W. Smith, Global ), p 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 ), Zou Keyuan, Maritime Boundary Delimitation in the Gulf of Tonkin. Ocean Development & International Law, number 30 (1999): , p Ibid. p Supra note

21 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 ), 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. 11

22 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 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. Map 3 Overlapping claims in the South China Sea 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 Kwenchen, who now presides over the Taiwan-PRC talks, is recorded on film making a similar statement ( from Ian Townsend-Gault, Professor of Law, University of British Columbia, 5 August 1999). 47 VALENCIA, VAN DYKE AND LUDWIG, Sharing p

23 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 Stein Tønnesson, Resolving, p Personal communication with a senior Chinese (PRC) official during informal talks in 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 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 The Norwegian firm PGS Nopec, which made a survey in 1997 in co-operation with Indonesian, Malaysian and 13

24 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 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 maritimecentred, 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 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): 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 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

25 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 Sea 55 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 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 JOHN H. NOER, Chokepoints:, p

26 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 piracy 58 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 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 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 Tracy Dahlby, Crossroads of Asia: South China Sea. National Geographic, volume 194, number 6 (December 1998) (Hereafter Tracy Dahlby. Crossroads ), p

27 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 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): Ian Townsend-Gault, Legal, p Ibid. 63 Stein Tønnesson, Resolving, p Ibid. 65 Ibid. 17

28 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 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 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 , 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

29 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 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 19

30 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. 20

31 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 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. 21

32 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 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 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. 22

33 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 60 th 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 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 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 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). (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 ) (Hereafter United Nations, Table.. ). 23

34 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 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 United Nations, Law of the Sea Bulletin (LOS Bull.). Number 32 (1996)., p Date of declaration found in United Nations, Table 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 Date of declaration, see United Nations, Table ILC volume, section 16, p 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

35 In a report to the UN General Assembly, occasioned by the 10 th 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

36 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 PLATZÖDER, p. 4 and 5. 26

37 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

38 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 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 The straight baseline criteria stems from the ICJ s judgement in the 1951 Fisheries Case; a judgement which was rendered by 10 votes to This Anglo-Norwegian conflict first arose at the 89 ILC Volume I, Summary Records of the fourth session, at 30, p ICJ The Fisheries Case, p

39 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 Tullio Scovazzi, The Establishment, p ICJ The Fisheries Case, p. 128 (emphasis added), also found in Tullio Scovazzi, The Establishment, p ICJ The Fisheries Case, p. 133 (emphasis added), also found in Tullio Scovazzi, The Establishment, p

40 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. Map 5 Northern Coastline of Norway 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. 96 Ibid. 97 Corel Draw Map. 98 ILC volume I, Summary records of the fourth session, section 36, p

41 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

42 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): 7.1. Coastline 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. 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 firma 100 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 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 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

43 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 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. 33

44 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 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

45 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 HENRY CAMPBELL BLACK, Black s Law, p Summary Report, p ICJ The Fisheries Case, p REISMAN AND WESTERMAN, Straight Baselines, p

46 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 Ibid. 36

47 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. 37

48 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 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 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 LESLEY BROWN (ED.). The New, p

49 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 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 ROACH AND SMITH, United States, p. 62, supra note

50 criterion as is used for bays (the semi-circle test) could be sufficient for deeply indented. Figure II Baseline Delimitations Semi-circle Test 11 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 For a comparative analysis of the Fisheries Case and the straight baseline regime, please refer to chapter I, section

51 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 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 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 interpretation 18 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 Vienna Convention Article 31 General Rule of Interpretation. 16 REISMAN AND WESTERMAN, Straight Baselines, p LESLEY BROWN (ED.), The New, pp REISMAN AND WESTERMAN, Straight Baselines, p

52 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 US Dep. Developing, p 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. 42

53 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 Contextual Interpretation The Juridical Bay Regimes Impact on the Cut Into Criterion On the basis of a contextual interpretation 25 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 REISMAN AND WESTERMAN, Straight Baselines, p 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

54 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 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 UNITED NATIONS, Baselines:, paragraph 36, p UNITED NATIONS, Baselines:, paragraph 39, p

55 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 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. 45

56 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 ILC volume I, at 54, p ICJ The Fisheries Case, p

57 looked into to see if they support a general trend that can give an indication of allowing a more liberal regime 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 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). 47

58 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 miles 38, which means that legitimate EEZ claims of the two countries will overlap one another. This baseline segment (84.6 nautical miles long 39 ) 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 China 43 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). 48

59 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 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 China 45 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 Corel Draw Map. 44 Basepoints 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 Component of US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER, CHINA S CLAIMED STRAIGHT BASELINES (Number ) (R02169) US Dep. Straight Baseline Claim: China., p

60 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. 50

61 Outside the city of Zhanjiang (see Map 8 below), a Chinese baseline 48 is drawn between a rock outside the Chinese mainland and a small island off the northeast coast of Hainan Island. This baseline is 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 City 51 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 Ibid., p 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 ) (R02169)

62 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 Taiwan The Taiwanese government drew a system of straight baselines around Taiwan in February 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 lowwater 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 Map 9 Straight Baselines of Taiwan 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 Map scanned and edited by Dr. K. H. Wang, received by mail 5 March

63 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 State Practice Outside the South China Sea Region 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 Rica Costa Rica s decree number 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

64 Iran Iran is a country with a complex coastline that does not fulfil the judicial bay regime. It reaffirmed its 1973 straight baselines in 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 semicircle test. The United States objected to the Iranian baselines in , the existence of which is evidence of state practice contradicting interpretation Map 11 Baselines of Iran the of the Convention. (Map 11) Map 12 Baselines of Colombia 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 (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 Iran Decree-Law of 21 July 1973 English text in UNITED NATIONS, Baselines: National,p US Mission to the United Nations Diplomatic Note 3509/437, 11 January 1994, see also ROACH AND SMITH, United States, footnote 9, p Also found in ROACH AND SMITH, United States, p 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 Also found in REISMAN AND WESTERMAN, Straight Baselines, p

65 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, [ ] 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 As Roach argues, the Egyptian coastline is generally smooth and gently undulated, and is neither deeply Map 13 Baselines of Egypyt 65 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 American Embassy, Bogota, Note number 500 dated 14 July 1988, see also ROACH AND SMITH, United States, footnote 69, p Presidential Decree number 27/90 of the Government of Egypt is reproduced in UN, LOS Bull. Number 16, December 1990, pp Also found in ROACH AND SMITH, United States, p ROACH AND SMITH, United States, p American Embassy in Cairo, Note delivered 13 June 1991, State Department telegram , 8 June 1991, see also ROACH AND SMITH, United States, footnote 71, p

66 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 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

67 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 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. 57

68 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 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 Coastline 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 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 Corel Draw Map. 71 US Mission to the United Nations New York Note dated 6 December 1982, State Department telegram , 1 December 1982, see also ROACH AND SMITH, United States, footnote 13, p

69 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 Coastline 73 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. 59

70 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 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 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 REISMAN AND WESTERMAN, Straight Baselines, p

71 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 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 Ibid., p. 63, supra note US Dep. Developing, p Reference is made to The Fisheries Case and the Straight Baseline Regime, Chapter I, section 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. 61

72 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 Vietnam 83 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. 62

73 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 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: 63

74 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 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. 64

75 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 65

76 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 REISMAN AND WESTERMAN, Straight Baselines, pp

77 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, 6 th series, volume 27, Written answers, col

78 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 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. 68

79 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 6 10, 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 LESLEY BROWN (ED.), The New, pp REISMAN AND WESTERMAN, Straight Baselines, p 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 Ibid. section 45, p

80 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 ICJ The Fisheries Case, p

81 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 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 ICJ The Fisheries Case, p UNITED NATIONS, Baselines:, section 45, p Ibid. 71

82 Figure III Fringe of Islands 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 UNITED NATIONS, Baselines:, section 42, p Ibid. 22 Ibid., section 39, p Ibid. 24 Ibid. 72

83 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 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 Robert D. Hodgson, Islands, Normal and Special Circumstances. Department of State Research Study RGS-3. (10 December 1973) (Hereafter Robert D Hodgson. Islands, ), p US Dep. Developing, p

84 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 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 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 ILC Volume I, section 64, p

85 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 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 Oman American Embassy, Muscat, Note 0606, dated 12 August 1991, see also ROACH AND SMITH, United States, footnote 87, p ROACH AND SMITH, United States, p

86 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 Egypt 33 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 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 ROACH AND SMITH, United States, p Ibid., p 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

87 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 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 Sea 36 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. 77

88 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 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 LESLEY BROWN (ED.), The New, p Ibid. p

89 vicinity and its qualification immediate, also stress this. 40 The coordination 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 These proposed limits take due notice of the possible abuse of the straight baseline regime 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 REISMAN AND WESTERMAN, Straight Baselines, p Ibid. p ROACH AND SMITH, United States, p US Dep. Developing, p ICJ Fisheries Case, p J.R.V. PRESCOTT, Straight Baselines:, pp

90 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 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 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 Reference is made to note 76, p Microsoft Measuring Tool between basepoint T 16 and the mainland. 80

91 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 Area 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 ) (R02169) US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER. THE SOUTH CHINA SEA. 81

92 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 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

93 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 Taiwan 53 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 Ibid. 83

94 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 reevaluate 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. Map 23 Taiwan s Territorial Sea 1 55 Ibid. 56 US DEPARTMENT OF STATE, OFFICE OF THE GEOGRAPHER. THE SPRATLY ISLANDS AND PARACEL ISLANDS (Number ) (R00118)

95 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 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 follows the Southern coast of the Isle of Pines, which is neither indented nor fringed with islands. 59 Map 24 Baselines of Cuba The United States formally protested against the Cuban baselines on 5 July 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 TULLIO SCOVAZZI, Atlas, p 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

96 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. Map 25 Baselines of Portugal 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 , State Department File number P , see also ROACH AND SMITH, United States, footnote 90, p American Embassy, Quito, Note delivered 24 February State Department telegram , 25 August 1986, see also ROACH AND SMITH, United States, footnote 92, p

97 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 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 Islands 66 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 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 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

98 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 Lua 69 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 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 miles 76 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 basepoint 79 located 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 mainland 81 (basepoint 2 is situated some 11 nautical miles off the coast 82 ). 68 Ibid. p 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 BAN DO HANH CHINH. 81 Microsoft Measuring Tool 82 US Dep. Straight Baselines: Vietnam, p

99 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 Ibid. 85 Reference to VALENCIA, VAN DYKE AND LUDWIG, Sharing, map p. 259, see also Chapter I, section For an analysis of the baseline question in the South China Sea conflict and maritime delimitation, see chapter VII - Conclsuion. 89

100 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 Vietnam 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 90

101 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 steppingstones perpendicular to the general direction of the coast cannot legitimise a straight baseline regime Corel Draw Map. 88 Reference is made to Chapter IV, paragraph 3 Does the Baseline Depart. 89 UNITED NATIONS, Baselines:, p

102 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 US Dep. "Developing, p Tullio Scovazzi. The Establishment, p

103 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 Tunisia vs. Libya decision and the decision of Libya vs. Malta in June 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. 93

104 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

105 Map 28 Western Coast of Vietnam directional trend 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 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 95

106 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. 96

107 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. 97

108 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 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

109 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 closed 3, 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 Maldives 7 2 ROACH AND SMITH, United States, p Ibid. 4 US Dep. Straight Baselines: Vietnam, p 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 State Department telegram , 2 June 1982, found in ROACH AND SMITH, United States, p

110 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)) 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 Valencia and Jon M. Van Dyke, Vietnam's National, p UNITED NATIONS, Baselines:, section 39, p

111 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 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 ILC, volume I, section 19, p

112 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 Reference is made to Chapter V, supranote See Chapter III paragraph ICJ The Fisheries Case, pp ILC, Volume I., section 48, p

113 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 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. 103

114 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 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 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. Map 30 Baselines of Mexico 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 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 These protests are available in US Department of State. Limits in the Sea, number 4 (January 1970) 20 TULLIO SCOVAZZI, Atlas, p

115 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 Direction 22 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. 105

116 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) 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 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 Ibid. 25 UNITED NATIONS, Baselines:, section 57, p International Law Commission, Yearbook of the International Law Commission 1955, 1955, volume II., p

117 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 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 ). 107

118 Map 32 Baselines of Hainan Island and Southern China 28 Baseline segment 31-32, which is 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 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

119 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 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 Map 33 Baselines of Burma34 from the general direction of the 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 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 US Dep. Straight Baseline Claim: China., p. 8. ROACH AND SMITH, United States, p Ibid., p 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

120 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 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 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 Vietnam 37 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 110

121 (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 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 Ibid., p According to UNCLOS Article REISMAN AND WESTERMAN, Straight Baselines, p Vietnamese name found in BAN DO HANH CHINH. 111

122 Map 35 Extension of Vietnam s EEZ due to Radical Baselines 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 UNITED NATIONS, Baselines:, section 59, p