7 The Application of Straight Baselines to Mid-Ocean Archipelagos Belonging …
125
possessing mid-ocean archipelagos for decades, and become a new point of departure
for the future law-making process in this respect.
Since the application of straight baselines to mid-ocean archipelagos is based
on customary international law, rather than Article 7 or Article 47 of LOSC, such
straight baselines are of a sui generis nature. Thus, there exist three categories of
straight baselines in international law of the sea: mainland straight baselines under
Article 7 of LOSC, archipelagic baselines under Article 47 of LOSC, and dependent
archipelagic baselines under customary international law. Nevertheless, since straight
baselines can enclose routes normally used for navigation, it is necessary to outline
certain qualifications so as to prevent the abuse of dependent archipelagic baselines.
According to Evensen’s report in 1958, there are several criteria for a state to follow
in applying straight baselines to outlying archipelagos, such as: close dependence
of the territorial sea upon the land domain of the archipelago; no departure to any
appreciable extent from the general direction of the coast of the archipelago viewed
as a whole; no exorbitantly long baselines closing vast areas of sea to free navigation
and fishing; no hindrance to the strait used for international navigation in enclosed
waters.
43 In retrospect, Evensen’s requirements for the application of straight baselines can be traced back to the creative jurisprudence in the 1951 Anglo-Norwegian
Fisheries Case. Given the evolution of the law of the sea, those criteria have been
codified more or less by the Geneva Convention on the Territorial Sea and Contiguous
Zone and LOSC. Therefore, the provisions in LOSC relating to straight baselines
might be of reference value in regulating the application of straight baselines to
dependent archipelagos.
Although Article 7 or 47 of LOSC cannot constitute the appropriate legal basis
of dependent archipelagic baselines, some common principles enshrined in both
provisions can be extracted and become the guidelines for continental States to draw
their dependent archipelagic baselines.
According to Article 7, there are at least three requirements which should be
strictly followed during the application of straight baselines:
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.
…
5. Where the method of straight baselines is applicable…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.
43 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters
of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law
of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 302.
125
possessing mid-ocean archipelagos for decades, and become a new point of departure
for the future law-making process in this respect.
Since the application of straight baselines to mid-ocean archipelagos is based
on customary international law, rather than Article 7 or Article 47 of LOSC, such
straight baselines are of a sui generis nature. Thus, there exist three categories of
straight baselines in international law of the sea: mainland straight baselines under
Article 7 of LOSC, archipelagic baselines under Article 47 of LOSC, and dependent
archipelagic baselines under customary international law. Nevertheless, since straight
baselines can enclose routes normally used for navigation, it is necessary to outline
certain qualifications so as to prevent the abuse of dependent archipelagic baselines.
According to Evensen’s report in 1958, there are several criteria for a state to follow
in applying straight baselines to outlying archipelagos, such as: close dependence
of the territorial sea upon the land domain of the archipelago; no departure to any
appreciable extent from the general direction of the coast of the archipelago viewed
as a whole; no exorbitantly long baselines closing vast areas of sea to free navigation
and fishing; no hindrance to the strait used for international navigation in enclosed
waters.
43 In retrospect, Evensen’s requirements for the application of straight baselines can be traced back to the creative jurisprudence in the 1951 Anglo-Norwegian
Fisheries Case. Given the evolution of the law of the sea, those criteria have been
codified more or less by the Geneva Convention on the Territorial Sea and Contiguous
Zone and LOSC. Therefore, the provisions in LOSC relating to straight baselines
might be of reference value in regulating the application of straight baselines to
dependent archipelagos.
Although Article 7 or 47 of LOSC cannot constitute the appropriate legal basis
of dependent archipelagic baselines, some common principles enshrined in both
provisions can be extracted and become the guidelines for continental States to draw
their dependent archipelagic baselines.
According to Article 7, there are at least three requirements which should be
strictly followed during the application of straight baselines:
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.
…
5. Where the method of straight baselines is applicable…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.
43 See Jens Evensen, “Certain Legal Aspects concerning the Delimitation of the Territorial Waters
of Archipelagos”, Extract from the Official Records of the United Nations Conference on the Law
of the Sea, Volume I (Preparatory Documents), UN Doc. A/CONF.13/18, p. 302.