Wednesday, February 24, 2010

Baselines Straight and Normal

Map showing straight baseline separating internal waters from zones of maritime jurisdiction (source)

[Author's Note: This post is written as an exercise in drawing straight maritime baselines for Geoff Manaugh's Spring Semester Glacier/Island/Storm studio at Columbia GSAPP]

Arguably the most formalized and important sections of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) are those that deal with the formation of maritime boundaries and maritime zones.  And if one were to boil down all the elements of these sections to a single, overarching concept, one would quickly find out that the most important aspect of maritime delimitation is the baseline.

What is a baseline?  A baseline is a legal construct: a boundary line that determines where a State’s maritime sovereignty and jurisdiction begins and ends.  In fact, baselines determine all areas of maritime jurisdiction.  They create a demarcation between areas where a State has no rights and those where a State does enjoy rights..  We should now note that the default baseline under UNCLOS is the normal baseline.  According to Article 5 of UNCLOS, a normal baseline is drawn at the low-water line, as stated in official charts.  Perhaps the easiest way to think of a normal baseline is as an “outline” of a State’s coast.  Waters on the landward side of a baseline are considered a State's internal waters, treated much in the way that land would be treated.  However, in some situations, it is either impractical or uneconomical to draw a normal baseline.  In such cases, straight baselines are used in lieu of normal baselines.

Facsimile of judgement from 1951 Anglo-Norwegian Fisheries Case

The first guidelines for drawing straight baselines arose out of one of the most famous (and contentious) cases in international law: the 1951 Anglo-Norwegian Fisheries Case.  In this case, the United Kingdom and Norway contested access to fisheries off the Norwegian coast.  Norway had attempted to claim ocean areas through some creative cartography: by drawing “straight baselines” from points along its rugged coastline and asserting that the enclosed areas in between the deep fjords were exclusive Norwegian fisheries.  The U.K. argued against this by maintaining that baselines should follow the outline of the coast, using the trace parallele or courbe tangent methods of drawing baselines.  The ICJ eventually ruled in favor of Norway’s method of drawing straight baselines.

The 1958 United Nations Convention of the Law of the Sea codified this decision, and added more requirements to the drawing of straight baselines.    Under Article 4(1), straight baselines may be used in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along its coast in its immediate vicinity.    Article 4(2) further develops the 1951 decision and maintains that “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 linked to the land domain to be subject to the regime of internal waters.”  Article 4(5) indicates that “[a] State may not draw straight baselines in such a way as to cut off from the high seas the territorial sea of another State.”    Article 4(6) states that “[a] State utilizing a straight baseline system must clearly indicate the lines on charts to which ‘due publicity’ must be given.”  And finally, Article 4(4) tells us that “Account may be taken of economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by a long usage.”  There is no specified length for straight baselines (although the longest straight baseline drawn by Norway was 44 nautical miles in length).  It should also be noted that from 1958 until 1982, only 10 coastal states have refrained from drawing straight baselines along their coasts.

UNCLOS added even more requirements to the drawing of straight baselines.  Article 7(1) states that straight baselines should be used when normal baselines are impractical.  This would in the case of coastal States with deeply indented coastlines   (Norway and Chile, for example) or fringing islands that mask the coastline   (Italy, Greece, Northern Canada).

Method for using straight baselines to determine juridical and natural bays (source)

Straight baselines are also drawn in special circumstances.  In situations where a river flows directly into the sea, UNCLOS Article states that a straight baseline is drawn between the low-water marks on the mouth of the river.  Special rules also apply when drawing straight baselines across the mouth of a bay.  UNCLOS Article 10 employs the semicircle rule.  We begin by drawing a straight line across the mouth of the bay or indentation, and that line becomes the diameter of a semicircle.  If the area of the indentation is greater than the area of the semicircle, then the indentation is a juridical bay, and a straight baseline may drawn across the mouth,  If the area of the indentation is smaller than the area of the semicircle, then the indentation remains an indentation, and baselines must be drawn along the low-water points adjacent to the indentation.

Straight baselines used to determine pelagic waters for Trinidad and Tobago (source

UNCLOS also contains special rules for drawing baselines around archipelagoes.  Article 46(b) provides a rather exhaustive definition of an archipelago as “a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features from an intrinsic geographical, economic and political entity, or which historically have been regarded as such.”  Article 46(a) defines an archipelagic state as a “state consisting wholly of one or more archipelagoes and may include other islands.”  Examples of archipelagic states would include Indonesia, The Philippines, and Japan.

Although given separate treatment in UNCLOS, the guidelines for drawing archipelagic baselines are similar to those for drawing straight baselines.  Generally, archipelagic states may, according to Article 47(1), “draw straight archipelagic baselines joining the outermost points of the outermost islands.”  Article 47(2) provides that archipelagic baselines may not exceed 100 nautical miles in length.  Article 47(1) furthermore states that archipelagic baselines must be drawn such that the ratio in archipelagic states of water-area to land-area must fall in between 1 to 1 and 9 to 1.

There are limits to the drawing of archipelagic baselines, however.  Article 47(3) states that the archipelagic baselines shall not depart to any appreciable extent from the general configuration of the archipelago.  Article 47(4) indicates that archipelagic baselines shall not be drawn to and from low-tide elevations.

The system for drawing normal, straight, and archipelagic baselines under UNCLOS is a formal and complex affair.  However, we cannot overstate the importance of drawing proper baselines.  It is at the baseline that a State’s maritime territory begins.  The baseline is the starting point for determining a State’s maritime zones.  Each of these zones is important because a State’s ability to control and exercise power over these varies.  In essence, a State has more power over those zones closest to the baselines.  Planners, especially those concerned with developing plans along shared coastlines, must be familiar with what a State can or cannot do within these maritime zones.  This ensures the proper implementation of such plans.

The Territorial Sea.  The territorial sea of a State is the most fundamental, and in some instances, the most important of all maritime zones.  UNCLOS Articles 2 and 3 state that the breadth of the territorial sea extends 12 nautical miles from the baseline.  This is a remarkable departure from the 1958 Convention, which defined a 3 nautical mile territorial sea.

A coastal State has complete sovereignty over its territorial sea.  It can even deny access to its territorial waters, under certain circumstances.  The only limit to this unbridled sovereignty is the principle of innocent passage.  UNCLOS Article 17 provides that all ships, including those of other States, enjoy the right of continuous and expeditious innocent passage through a State’s territorial sea.  Passage ceases to be innocent in several case, as when a ship from another State engages in serious or willful pollution, fishing, or military activities.

Article 21 provides a list of powers that a coastal State has over its territorial sea.  A coastal State may regulate activities within its territorial sea in the name of navigational safety, protection of cable and pipelines, environmental protection, protection of fisheries, and preventing infringement of its customs, fiscal, immigration or sanitary laws.  Article 23 even allows the coastal State to place restriction on ships carrying hazardous cargo.  A coastal State also has certain responsibilities with regard to its territorial sea.  It is responsible for policing an maintaining order, maintaining aids to navigation, dredging channels, and publishing nautical charts of its territorial sea.

Contiguous Zones.  Article 21 permits coastal States to extend a contiguous zone 12 to 24 nautical miles from the baseline.  The purpose of a contiguous zone is to provide a coastal State with the power to prevent the infringement of certain kinds of laws.  Hence UNCLOS Article 33(1) gives a coastal State to power to exercise customs, fiscal, immigration or sanitary regulations in the contiguous zone.

At this point, it is important to note the difference in the types of powers a coastal State can exercise over is territorial sea and contiguous zone.  Sovereignty over the territorial sea is, for the most part, absolute.  A coastal State can exercise almost any type of power it wants within its territorial sea (subject to a ship’s right of innocent passage, of course).  In the planning context, this means that a coastal State is free to implement any type of regional plan or development within 12 nautical miles of its shores.   However, in its contiguous zone, a coastal State has the power to exercise a limited set of regulations.  Although there is a definite lessening of power, it should be noted that the contiguous zone does serve a limited, but useful, purpose: it allows a State to prevent the infringement of its customs, fiscal, immigration, and sanitary laws before a ship enters its territorial waters.  However, a coastal State’s economic powers over the oceans are dealt with in a different way, and this may prove to be more significant to the unbridled sovereignty it enjoys over the territorial sea.

Continental Shelves (CS) and Exclusive Economic Zones (EEZ).  Even though they developed separately, it is useful to consider the CS and EEZ regimes together since under the current law of the sea, they are largely coextensive.  The continental shelf describes the legal regime applied to the resources of, and activities affecting, the seabed and subsoil under the ocean.

By 1945, the continental shelf was a physical reality.  President Harry Truman’s proclamation "Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf" gave the United States jurisdiction and control over “the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.”  But by 1958, the Convention on the Continental Shelf codified the doctrine in six short articles.  That treaty defined the CS as extending out to the 200-meter isobath (that point where the depth of the water was 200 meters), or “beyond that limit, to where the depth of the superadjacent waters admits of the exploitation of the natural resources of said areas.”  The Convention thus acknowledged that as technology improved to drill for oil and gas, international law would adjust by allowing coastal states extensions of rights to the CS.

These provisions were incorporated into UNCLOS, but with an important qualification.  Article 76 provides that the outer limit of the continental shelf was “the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles,” out to a total distance of 350 nautical miles from the baselines, or 100 nautical miles from the 2500 meter isobath.  UNCLOS even goes as far to give a scientific definition for the limit of the CS: “the outermost fixed points at each of which the thickness of the sedimentary rocks is at least 1% of the shortest distance from such point to the foot of the continental slope.”  Thus, the continental shelf is defined in terms of pure distance, but extension beyond that limit depends on the scientific composition of the shelf.

Like the continental shelf, coastal States are given certain powers over their exclusive economic zone (EEZ).  Article 56 creates a 200 nautical mile EEZ, drawn from the baseline.  Article 56 goes on to give coastal States two kinds of authority over the EEZ: (1) sovereign rights over the natural resources of the water column (chiefly fish stocks); and (2) jurisdiction over activities affecting those resources, including offshore platforms and artificial islands, marine pollution prevention, and marine scientific research.

A coastal State exerts a formidable amount of power beyond its coastline.  Beyond the unbridled sovereignty a coastal State enjoys over its territorial waters, it also enjoys extensive and unenumreated powers in the continental shelf and exclusive economic zone.  This means that, in theory, a coastal State has control of the waters and the seabed extending at least to 200 nautical miles beyond the coast, and can in some instances have further control of the continental shelf beyond that mark.  In many ways, UNCLOS’s creation of a 200 nautical mile exclusive economic zone sanctioned the largest territorial grab in history.

This is quite a large parcel of territory indeed, and a coastal State is free to use it for economic benefits.  For planners, this means that regional schemes may be created using the vast natural resources provided by the world’s oceans.  Thus we see that the extremely formalized system of specific maritime zones provides a useful framework for planners who are creating programs involving offshore resources.  Knowledge of these zones, and how these zones are created, only ensures that today’s regional and international planner is well-informed and able to use this legal framework to his or her advantage.

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