Gayl S. Westerman

Interpreting the Baseline Regime

The interpretation of international agreements is not an intuitive exercise, but a prescribed, disciplined procedure which reflects centuries of experience and a variety of important and continuously confirmed policy choices. The customary law in this matter has been codified by the International Law Commission and thereafter adopted by an international conference convened by the UN General Assembly. The result is the Vienna Convention on the Law of Treaties.1 The provisions which address interpretation have been authoritatively held to be a codification of customary law and, as such, are binding erga omnes.2 Article 31 of the Vienna Convention provides:

Straight Baseline Claims of States

Since 1951, eighty states have opted to draw straight baselines along all or a portion of their coasts. Some of these straight baseline exercises are in substantial conformity with the authoritative formulas of 1951, 1958, and 1982. Many are not.

Toward a Rational Law and Diplomacy of Straight Baselines

Our review of the genesis of straight baselines in their historical and political context persuades us that it is urgent that this area of the law be subjected to reconsideration. As we have seen, straight baselines have been justified in terms of a number of different functions. In terms of what might be called the maritime zone rationalization function — simplifying and facilitating both mariner respect for and coastal enforcement of maritime zones by “smoothing out” the lines demarking the sequential seaward zones — straight baselines were neither the necessary nor the optimum solution. As a rationalization technique, the arcs of circles method, developed in 1930 by Whittemore Boggs, the then Geographer of the US State Department, which won the approval of geographers and cartographers at The Hague Codification Conference and was formally proposed by the United Kingdom and rejected by the International Court in 1951, would have had much to recommend it, not the least being its relative insusceptibility to abuse.1

The “Fisheries Case” and Straight Baselines: Judicial Law-Making

In retrospect, it is clear that from the third decade of this century on, many political forces were coalescing in a common effort to expand coastal control over increasingly broad areas of the contiguous high seas. Pride of place for the initiative is usually claimed by the Latin American states, but many states and publicists had begun to act and write in support of such seaward expansion prior to the Second World War.1 The reasons for these new demands for coastal state jurisdiction were hardly recondite. The world had entered the hydrocarbon age, and the technical possibilities of offshore production had put deposits in the continental shelf within reach. But other interest groups, including long distance fishermen and naval and air force elements, continued to resist such expansions in favor of the traditional three-mile limit.2 Where these groups proved to be the dominant domestic force, they mobilized their respective governments into opposition todomestic and foreign pressures for seaward expansion of national jurisdiction. Those nations and groups that favored the continuation of a regime of narrow coastal control and broad international use prevailed through the 1950s. But by 1958, and certainly by 1960, the broad lines of the emerging expansionist regime were becoming clear.

Codification of the Baselines Conception: The International Law Commission and the Law of the Sea Conferences

Following the discussion at the Fourth Session of the International Law Commission (ILC) in 1952, Professor Francois, the Special Rapporteur, convened a Committee of Experts to deal with certain questions of a technical nature concerning the territorial sea. The Committee was composed of Professor L.E.G. Asplund of Stockholm, M.S. Whittemore Boggs of the Department of State, M.P.R.V. Couillault of the Central Hydrographic Service in Paris, Commander R.H. Kennedy of the Royal Navy and Vice-Admiral A.S. Pinke of the Dutch Royal Navy.1 The Committee met in The Hague in April, 1953, and reported on a variety of questions posed by the Special Rapporteur.

The Development of the Concept of Baseline

A predictable international regime of maritime zones requires a consistent concept of baseline1 from which all such zones can be projected. Throughout historical cycles of expansive and restrictive attitudes toward claims of national jurisdiction over coastal waters, and even in periods marked by disagreements about their breadth,2 virtually all jurists have agreed that such claims should be measured from a common basepoint. Initially, that basepoint was assumed to be the point at which the terra firma meets the sea.3 There are, of course, some early examples of baselines which departed widely and idiosyncratically from the coast, such as the attempt by James I of England to delimit water areas of enormous size by drawing straight baselines around the “King’s Chambers”, over which the Crown might exercise exclusive authority as Protector of the Oceans.4 Such claims were generally opposed. By far the most accepted jurisdictional baseline, regardless of the extent of the jurisdiction claimed, was the actual coast.5