1

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

LAW OF THE SEA - PROJECT WORK

On

RIGHT TO INNOCENT PASSAGE AND ISSUES RELATING TO BASELINE AND INTERNAL

WATERS

SUBMITTED TO:

Ranjan Kumar
SUBMITTED BY:
Assistant Professor
Asha Bhagat

2016 BA.LLB 50

Xth semester.

ACKNOWLEDGEMENT
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I would like to convey my gratitude to my Assistant professor of the Law of the Sea , “
Ranjan Kumar” for providing me with such a marvellous subject to base my research on and
for her support and guidance without which this piece of work would not have turned out the
way it has.

I would like to express my gratitude to my parents without whose support this project would
not have been what it is. I am grateful for their faith in me that always pushed me for the
best.

I am grateful to all my friends for having supported me and pushed me that extra mile.

Thanking you

Asha Bhagat

TABLE OF CONTENTS
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1. ACKNOWLEDGEMENT.

2. LITERATURE SURVEY

3. STATEMENT OF PROBLEM.

4. HYPOTHESIS

5. OBJECTIVES OF STUDY

6. RESEARCH QUESTIONS

7. INTRODUCTION

8. THE RIGHT TO INNOCENT PASSAGE AND PROVISIONS OF LAW OF THE SEA CONVENTION.

1. GENERAL RULES GOVERNING INNOCENT PASSAGE.

2. LEGISLATIVE POWERS EXERCISED BY THE COASTAL STATE

3. COASTAL STATES HAS CERTAIN RIGHTS AND DUTIES

 INNOCENT PASSAGE AND VARIOUS KINDS OF SHIPS

1) Innocent Passage of vessel which having special characteristics.

2) Innocent passage of Merchant vessel

3) Innocent Passage of Warships

4. ISSUES RELATED TO INNOCENT PASSAGE

9. ISSUES RELATING TO BASELINE AND INTERNAL WATERS.

1. BASELINE.

A. NORMAL BASELINE

B. STRAIGHT BASELINE

 Historical Background.

1. International Court of Justice in the case of “Anglo-Norwegian Fisheries Case.

2. Straight baselines under Article 7

 EXCESSIVE DEMARCATION OF BASELINES

 STATE PRACTICE

 BASELINE PUBLICITY
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2. INTERNAL WATERS

 PORTS

1. The Right access Ports

1.1 The coastal State’s jurisdiction over

foreign vessels in its internal waters

10. CONCLUSION AND RECOMMENDATIONS

11. BIBLIOGRAPHY

LITERATURE SURVEY
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The project work cites a variety of references in order to conduct the study. However, the
following are a few primary and secondary sources that have had a greater impact on the
subject and influenced the research formulation: -

Primary sources

1. United Nations Convention on The Laws of the Seas (UNCLOS) – 1982.

“The arguments towards understanding the straight baselines around the
Lakshadweep islands have been drawn from this document. It is an
international agreement that resulted from the UN conference on the Law of
the Sea (UNCLOS III) between 1973 and 1982. The document defines the
rights and responsibilities of nations with respect to their use of the oceans,
establishing guidelines for businesses, the environment and the management of
marine resources. The agreement came into force in 1994 after ratification by
60 countries and presently has 167 signatory countries.”

Secondary Sources

1. Excessive Maritime Claims (Third Edition), Ashley Roach and Robert W

Smith.1 “The book is based on various governmental materials available in the
open domain, especially the United States. The book addresses progress in
maritime security, proliferation of WMDs by sea, piracy and protection of
underwater cultural heritage. However, for the purpose of this dissertation
Chapter IV of the book is of special relevance as it deals with drawing of
Baselines and consequent Excessive Maritime Claims of countries with reference
to the UNCLOS III. Further, Chapter VII discusses the excessive claims of the
Exclusive Maritime Zones, which are determined with the baselines as their
reference.”

STATEMENT OF PROBLEM

1
JA Roach and Robert W Smith, Excessive Maritime Claims, Third Edition, (Brill/Nijhoff, June 2012),
pp. 57-58
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Baseline claims have the potential to stretch maritime authority far out to sea, jeopardising
navigation, overflight, and other interests. The objective implementation of the Convention's
baseline rules will help deter potential excessive claims and allow governments to amend
current claims to meet the relevant requirements. It is clear that baseline claims will greatly
expand maritime authority seaward, causing navigation, overflight, and other interests to be
harmed.

HYPOTHESIS

The provision contained in the law of the sea Convention balance the rights and interests of
both the maritime states and coastal state’s.

OBJECTIVES OF STUDY

 To study rules regarding the innocent passage.

 To study rights and duties of coastal states.
 To study rules related to baseline and internal waters

RESEARCH QUESTIONS

 What are the rules governing baselines?

 What are the problems associated with rules with regard to straight baselines?
 Whether foreign ships allowed to Innocent passage in internal waters?
 Whether foreign ships allowed to enter the ports which are within the internal
waters.?
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1. INTRODUCTION

One of the most ancient branches of international law is the Law of the Sea. The doctrine of
the freedom of the seas was developed by Hugo Grotius' work Mare Liberum in the
seventeenth century. As

“the oceans have been and continue to be fundamental to human life, the
development of the modern law of the sea has moved away from this doctrine
and into a regime of creeping coastal State jurisdiction. This development
provides the coastal states with greater powers to limit the freedoms of the
seas.”

The primary purpose of the law of the sea is to “divide the ocean into several jurisdictional
zones” in order to distribute Jurisdiction to sovereign coastal states. The coastal state and
third states are given differing rights and responsibilities in these different Maritime areas.
As the distance from the coast increases, the state's sovereignty diminished.

The Law of the Sea Convention (LOSC), which was signed and adopted at UNCLOS III, is
known as the “Constitution of the Sea” and a structure Convention. It is regarded as one of
the most detailed legal conventions of all time, with 320 articles.

This work reviews the “Convention on the Law of the Sea of the United Nations” as it covers
basic questions: “Rights to innocent passage” and “issues related to baseline and internal
waters.”

The security interests of coastal states and the navigational interests of maritime states are the
key conflicts related to ocean passage analysis. Coastal states' most exclusive claims are those
seeking to safeguard or restrict access to “internal” or “territorial waters” directly adjacent to
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the state, as well as those seeking to extend state control over these waters. These countries
justify their demands as necessary for the preservation of petroleum and mineral resources,
the protection of fishing rights, and the prevention of pollution in their neighbouring waters..

The most comprehensive arguments, on the other hand, are often made by maritime nations,
whose interests are best served by having complete freedom of access to the oceans for
transportation, communication, military purposes, and the development and trade of raw
materials and products. Maritime nations see these strategies as beneficial to their own
interests as well as the global community’s. Via the regimes of innocent passage and transit
passage, the LOS Convention represents the most recent effort to strike a balance between the
interests of coastal and maritime states. The UN publication on Baselines clearly states, “It is
not the purpose of straight baselines to increase the territorial sea unduly.”

2. RIGHT TO INNOCENT PASSAGE AND THE PROVISIONS OF

LAW OF THE SEA CONVENTION

The right to innocent passage appeared to be the product of a failed effort to reconcile
navigation freedom in the Oceans with territorial waters theory. Although the family of
nations recognised the importance of granting maritime states a zone of waters along the
coast, it was reluctant to jeopardise the newly acquired independence of the seas. The right to
innocent passage, as a general concept, does not necessitate any supporting statement or
citation of authority; “it is firmly founded in international law.” However, there is
disagreement on two points: first, whether war vessels are permitted to exercise this right;
and second, to what degree such transient vessels are subject to the coastal State’s authority.

Innocent passage refers to “a right of free passage through territorial waters that exists only if
the international vessel complies with coastal state regulations and does not interfere with or
disturb the coastal state's tranquillity.”

All ships have the right of innocent passage into another State's territorial sea, which is one of
the basic tenets of international maritime law. (A right to overflight or underwater passage is
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not included in innocent passage.) Article 17 communicates this concept, which is further
established in Section 3 of Part II of the Convention (articles 17-32).

A. General rules governing Innocent passage

PASSAGE

According to Article 17 of United Nations Convention on the Law of the Sea, there is a right
of innocent passage, through the territorial sea for all the ships of the states. Innocent
passage compression of two elements : the passage and innocence

Article 17 of United Nations Convention on the Law of the states : “Innocent passage” as

“Innocent passage implies that navigation through coastal waters of a state by a

foreign ship is peaceful and not offensive. In the territorial sea, ships of all
States, whether coastal or land-locked, enjoy the right of innocent passage.” 2

Under Article 18 (1) of the law of the sea Convention

Definition of the Passage given under United Nations Convention on Law of the sea did not
create difficulties. The rules governing Passage provided under Law of the sea Convention
mainly concerned about the purpose of the navigation through the territorial sea. Therefore,
“As a result, a ship can navigate the territorial sea without entering internal waters or dock
at a port facility outside of such waters. A ship can, on the other hand, access or exit from
internal waters, or call at a port facility located outside of such waters.” 3

Even then, ships are not able to “hover or cruise” about in the territorial sea because they will
not be engaged in passage, regardless of whether they are “innocent.” According to the
provisions of Article 18 (2) :

“ passage is required to be continuous and expeditious. However, ships are

permitted to “hover” in the territorial sea for the purpose of stoppage or
anchorage incidental to ordinary navigation, or when rendered necessary by

2
Article 17, United Nations Convention on Law of the
3
Article 18 (1).
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force majeure, distress or for rendering assistance to persons or crafts in

danger”. 4

Thus, under Article 18 United Nations Convention on Law of the sea defines “Passage”. The
provisions of Article 18 of 1982 Convention is similar to the provisions of Article 14 (2) and
(3) of the Territorial Sea Convention of the 1958. Article 18 gives three new elements as :

1. Firstly, According to the 1982 Law of the sea Convention, it has been acknowledged
that, “ a coastal states port’s may be situated outside of the state’s internal waters
such example of roadstead or an offshore deep water port.”
2. Secondly, Passage must be required to be “ Continuous and expeditious”.
3. Thirdly, 1982 law of the sea Convention stipulated that, “passage requires stopping
and anchoring to assist persons, ships, or aircraft in danger or distress, thereby
building on the customary right of assistance entry.”

And under Article 19 (2), it gives definition of “Innocent passage”, as:

“that passage is innocent so long as it is not prejudicial to the peace, good order, or security
of the coastal State, an all-inclusive list of activities considered to be prejudicial to the peace,
good order, and security, and therefore inconsistent with innocent passage.”

Thus, these activities does not include the use of equipment employed to protect safety
measures of the ships. All these list gives ways by which state can be able to define that
whether a particular passage is innocent or not.

Activities that take place in the territorial sea are protected by Article 19(2). This ensures that
any assessment of a transiting ship's non-innocence of passage must be based on the conduct
it takes when in the territorial sea. As a result, the cargo, method of propulsion, flag, origin,
destination, or object of the voyage cannot be used to determine if the passage is not
innocent. This is a crucial point in terms of national security, since nuclear propulsion is used
by 40% of US Navy combatant ships.

According to the Provisions of the Article 20

4
Article 18 (2).
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“Unless the coastal State agrees to waive the requirement, submarines and other
underwater vessels must navigate on the surface and display their flag when in the
territorial sea, according to Article 20. (as has been done in the NATO context).”

Innocence is negatively defined as passage that is not prejudicial to the peace, good
order or security of the coastal state. Bearing in mind that these indices are highly
subjective, an attempt is made to enhance objectivity by providing a laundry list under
article 19(2), the engagement in which would render passage non-innocent. It is arguable
that the use of words like ‘propaganda’ and the open-ended formulation in sub-paragraph
(l) suggest that what constitutes innocent passage is at once objective and subjective.

Under provisions of Article 19 of 1982 Law of the Sea Convention, Innocence is defined
negatively as, “passage that is not prejudicial to the peace, good order or security of the
coastal state.” Due to subjective nature of these provisions that it gives two much power to
the coastal State to determine Innocent passage. Therefore an effort is made to improve
objectivity by including a laundry list under article 19 (2), the violation of which will make
passage non-innocent. The use of terms like “propaganda” and the open-ended formulation in
sub-paragraph (l) may be interpreted as implying that what constitutes an innocent passage is
both “objective and subjective”.

According to the provisions of Article 19, there is a presumption of Innocence until the
opposite is established by who assets it. This is because, in the language of the article, ships
are not required to prove that their passage is lawful before being able to pass through the
territorial sea. It also appears that the manner and items associated with such passage can be
used to objectively decide whether or not a ship is in innocent passage.

Thus, innocence poses duty to be remain Innocent during passage. By nature of the vessel
passage is denied, therefore in such cases Vessel has to take permission from the coastal
State. Passage is not innocent as per the provisions of the 1982 law of the sea Convention, for
the purposes of doing any of the act prejudicial to the public policy and fiscal objectives of
the coastal State. Also it was stated in the case of Corfu channel that, “denial of passage to
corfu channel in the waters of the British. In defining right to passage, Court take in account
manner of passage.”

B. Legislative Powers exercised by Coastal state.

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In the territorial sea, there has never been absolute “ freedom of navigation”. As Seldom
pointed out that :

“It is most evident from the customs of all times, that free passage (as they term it) is wont
ever to be so restricted by coastal States in their territories, that it is allowed or prohibited
according to the various concernments of the public good,” The right to innocent passage
does not exist today at the whim of coastal state . It is limited by the 1982 law of the Sea
Convention , which vests the right of regulation in the coastal states.

As under Article 215of 1982 Convention :

“The coastal state will protect its interests in the territorial sea by laws and
regulations. Safety of navigation and maritime traffic regulation; protection of cables,
pipelines, and navigational aids; conservation and preservation of the marine
environment and its living resources; and pollution prevention, reduction, and control;
marine scientific research and hydrographic surveys; and customs, fiscal,
immigration, and sanitarian interests.”

The coastal state's legislative powers raise the question of whether a ship's violation of the
coastal state's laws or regulations will make passage non-innocent in and of itself. By
describing non-innocent passage in terms of the interests of the coastal state, it seems that
violations of coastal state laws and regulations may be considered non-innocent passage
because such violations would be obviously provocative.

Whatever be the case, it is not in doubt that article 19(2)(1) and article 21 gives the
coastal state a wide latitude to characterize passage as non-innocent based on its
caprices. Terms like ‘peace’, ‘good order’ and ‘security’ are highly fluid and susceptible
to varying interpretations despite the attempt to inject objectivity in their interpretation.

C. Coastal state has certain rights and duties.

If the coastal state has the authority to regulate innocent passage, the coastal state
must also have the authority to enforce the laws. The one implicitly assumes the other.
The coastal state's police powers are called into action for this purpose by article 25,
which allows it to take the required measures to prevent non-innocent passage in the
territorial sea. The coastal state can, in particular, take the required measures to

5
Article 21, LOSC.
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prevent violations of the conditions attached to ship admissions to internal waters or

calls at a port facility outside of internal waters.

Article 25 clearly indicates that a ship's breach of the coastal state's laws and
regulations simpliciter would make its passage through the territorial sea non-
innocent. What's more concerning is that there appears to be no governing law for the
measures that a coastal state should take to avoid non-innocent passage. “ Preventive
measures are placed in the singular bosoms of the coastal state. Perhaps the only
definitive limitation on the enforcement powers of the coastal state is the
prohibition of the levying of charges upon foreign ships by reason only of their
presence in the territorial sea. Even then, the use of the hortatory may in that
article, instead of the mandatory shall, suggests that the coastal state may levy
charges upon foreign ships passing through its territorial sea for no service
provided.”

According to Article 25 (1), “empowers the coastal state to take reasonable measures in the
territorial sea to prevent non-innocent passage”.

According to Article 25 (2), “The coastal State may also take the precautions to avoid any
violation of the conditions for foreign ships' admission to internal waters, as well as calls at a
port facility outside of internal waters.”

ARTICLE 25 (3), According to this provision coastal state ‘Suspension of innocent passage
Temporarily’ as:

“the coastal State may, without discrimination in form or in fact among foreign ships,
suspend temporarily in specified areas of its territorial sea the innocent passage of
foreign ships if such suspension is essential for the protection of its security, including
weapons exercises. Such suspension shall take effect only after having been duly
published. Such suspension must be in pursuance of the protection of the coastal
state’s security and it must not be discriminatory among foreign ships in form
or in fact.”
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ARTICLE 24 STATES AS: coastal State duty to provide ‘due publicity to any danger to
navigation’ as :

“The traditional delicate balance between freedom of navigation and restricted access is
preserved by the LOSC. Thus however extensive its regulatory rules may be, the
coastal state is precluded from adopting measures which have the practical effect of
denying or impairing the right of innocent passage through its territorial sea. A negative
duty is also placed upon the coastal state not to discriminate between ships on the basis
of nationality or cargo. Then again, a positive duty exists for coastal states to give
appropriate publicity to any danger to navigation within its territory, of which it has
knowledge. ”6

a. INNOCENT PASSAGE AND VARIOUS KINDS OF SHIPS

1. Innocent Passage of vessel which having special characteristics

According to Article 23,

Vessel contains hazardous substances, submarines, contain nuclear weapons are not allowed
to Innocent passage, because of the nature of such ships. Passage of Nuclear ship through
Territorial sea is an exception to India Passage.

“Such ships are required to carry documents and observe special precautionary
measures to be established by international agreements. Thus, the true scope of
the regime of innocent passage for such ships has been pushed into the future.
Perhaps the only determinate rule with respect to such ships, including tankers,
is that, they may be required by the coastal state to confine their passage to
designated sea lanes.”7

2. Innocent passage of Merchant vessel

The coastal state may assume civil or criminal jurisdiction over foreign merchant
ships, and government ships operated for commercial purposes, in its territorial
waters, under prescribed circumstances.

6
Article 24, LOSC.
7
Article 23, LOSC.
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According to Article 27, coastal states exercise “ Criminal Jurisdiction on board of foreign
ships in the Territorial sea”. Coastal State commonly invokes it’s criminal jurisdiction when
their interest is affected by passage of such foreign vessel. As However :

“the coastal state’s criminal jurisdiction is restricted where a ship is only

passing through the territorial sea without entering internal waters or calling at a
port facility. Here the coastal state may assume jurisdiction where the
consequences of the crime extend to the coastal state; or it is of such a kind as
to disturb its peace or good order of the territorial sea; or if the exercise of
jurisdiction has been requested by the master of the ship or operatives of the
flag state, or if it is necessary for the suppression of illicit drug trafficking.”

Articles 28, provide for the civil jurisdiction of the coastal states, as

“It must be pointed out at the onset that the general rule is that the flag state
has exclusive jurisdiction with respect to occurrences on board a ship. However,
the coastal state reserves the right to arrest or levy execution upon foreign
merchant vessels in its territorial waters for the purposes of civil proceedings.”

For example, Jurisdiction may be imposed for services provided to a ship in the territorial
sea, such as pilotage, or for damage to navigational aids or cables, for example. Thus, civil
jurisdiction of the coastal State will only in respect of rights and duties assuming by the
foreign vessel while passing through the territorial sea.

3. Innocent Passage of Warships

According to the provisions of the Article 30, it states as

“Since the coastal state cannot assume jurisdiction, civil or criminal, over foreign
warships, it may only require such ships to leave the territorial sea, where they
engage in non-innocent passage or refuse to comply with its laws and regulations
concerning innocent passage therein.”

In the event that a foreign warship does not comply with a coastal State's laws and
regulations about innocent passage, the only remedy open to the coastal State is to order the
warship to leave the territorial sea immediately. The flag state assumes foreign responsibility
for any loss or harm caused by its warships or other vessels, according to Article 31.
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Thus, innocent passage of merchant vessels did not poses problems. But in the innocent
passage of warships, there is issues. Prior to 1958

 No permissions for innocent passage allowed.

 No prior notification is allowed.

But, under 1982, submarines navigates between states. Prior Authorization and prior
Notification needed as warships and submarines.

D. Issues related to Innocent passage.

Provisions relates to innocent passage are such, which leads to different interpretations and
therefore several issues arising. For instance, subparagraph (h) of envisages “non-innocent
passage resulting from the engagement in wilful and serious pollution”.

And another issue regarding that, coastal State has duty not to deny innocent passage and aslo
have duty to safeguard marine environment. Problems rises to what extent coastal State
denied innocent passage on the grounds of the environmental concerns. Such issues creates
conflict between maritime states and coastal State. While maritime states stress on larger
navigation freedom and coastal State advocate restrictions on access.

The maritime powers' desire for unlimited freedom of navigation resulted from their desire to
dominate the seas in order to conduct military operations and improve the fortunes of their
merchant fleets.

The right of all states to use the seas equally is protected by the freedom of navigation in
principle. However, it favours maritime powers' interests to a large extent in practise,
especially when it comes to military uses of the ocean. With this in mind, the coastal states
revolted against the previous system of limited freedom of navigation.

Throughout reality, the right to innocent passage is a compromise between maritime and
coastal interests. The protection of navigational freedoms is in the interests of the former,
while security interests are in the interests of the latter. This "delicate balance between the
coastal state's security and other interests, and the international community's interest in free
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and unimpeded navigation is thus the backbone of the right of innocent passage," according
to one scholar.

The right of innocent passage, therefore, exists as a limitation on and as an exception to

absolute coastal state sovereignty in the territorial sea. It is “the only exception of any
importance.

3 ISSUES RELATING TO BASELINE AND INTERNAL WATERS

In deciding the access point of coastal states, territorial waters, and other maritime areas,
baselines play a critical role. Both seaward territories and marine regions, such as contiguous
zones and exclusive economic zones, use baselines as their starting point (EEZs). In addition,
all landward waters (water inland from the baseline) are referred to as internal waters and are
considered part of the national territory of a coastal state. To maintain sovereignty over these
waters and secure their historical fishing rights and other privileges, nations are marking
baselines excessively to extend their national boundaries.

Coastal states have begun to draw excessive straight baselines along indented coasts in order
to obtain the economic benefits of internal waters and expand the area of maritime zones. As
a result, countries with similar interests in internal waters and maritime zones challenge these
demarcations

3.1 BASELINE

A baseline is defined by the United Nations as :

“the line from which the seaward limits of a State’s territorial sea and certain other
maritime zones of jurisdiction are measured.”8

8
Myron H. Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary V.2, 81 (Satya
N. Nandan & Shabtai Rosenne eds., 1993).
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Baseline has three purposes;

“the main purpose of which is to bifurcate all sea and coastal waters between the
internal seawaters of the country and seaward waters, where the baseline is the
dividing line between them. Another key purpose of the baseline is to demarcate the
outward boundaries of maritime zones, thereby defining the territorial waters, the
continental shelf, the EEZ juridical zone (200 nm), and the contiguous zone The last
purpose of defining the baseline is to differentiate between the overlap of maritime
zones and boundaries of contingent coastal countries.”

Under Articles 5, along with 7, 11, 13, and 14, 47 of the law of the sea Convention had been
provided rules and guidelines for drawing baselines. There are two types of baselines given
under the as

 NORMAL BASELINE i.e. “following the low water mark along the coast”
 STRAIGHT BASELINES i.e. “which can be employed only in specified geographical
situations.”

Rules for drawing baselines, therefore considered many factors taken into account as:

“geographical conditions existing along the coastlines of the world. Baseline claims
can extend maritime jurisdiction significantly seaward in a manner that prejudices
navigation, overflight and other interests. Objective application of baseline rules
contained in the Convention can help prevent excessive claims in the future and
encourage governments to revise existing claims to conform to the relevant criteria.”

Baselines are drawn in two ways in the 1982 treaty legal system to prevent problems. The
regular or normal baseline is the first form of baseline, whereas the straight baseline is the
second.

The “junction between deep waters and low waters at the coast” is the baseline for “low
waters.” Before the baseline, everything within a coastal country's internal waters is its
sovereign territory
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Coastal countries have varying rights and privileges in various maritime areas, including
internal waters, territorial waters, EEZs, and continental shelves. Internal waters begin at the
baseline and are considered the state's sovereign boundaries, with the same rights as a stretch
of sovereign territory

A. NORMAL BASELINE

Under Article 5 of the 1982 convention normal baseline , it states as

“Except where otherwise provided in this Convention, the normal baseline for
measuring the breadth of the territorial sea is the low-water line along the coast as
marked on large-scale charts officially recognized by the coastal State.”

Water marks' lines at the coast are the defining baselines to measure seaward maritime
jurisdiction under the law of the sea Convention, which provides the general rule that, in all
situations where the LOSC has not specifically established the baseline due to the unique
nature of the case, water marks' lines at the coast are the defining baselines to calculate
seaward maritime jurisdiction.

The International Court of Justice, in the landmark case of “ Anglo-Norwegian Fisheries

case” has explained “Normal baseline”. In this case, court has noted as follows :

“For the purposes of measuring the breadth of the territorial sea, it is the low-water
mark as opposed to the high-water mark, or the mean between the two tides, which
has generally been adopted in the practice of States. This criterion is the most
favourable to the coastal State and clearly shows the character of territorial waters as
appurtenant to the land territory.”9

The ICJ established that, normally, in accordance with a state’s general practices, the low-
water mark or the mean between low and high-water marks is used as the baseline to define
seaward territories. This baseline is used by coastal states to differentiate between seaward
territories and land territories.

9
Fisheries (United Kingdom v. Norway) [1951] ICJ Rep 116.
20

It's worth noting that demarcating appropriate baselines, which are typically defined by low-
water marks on applicable maps, is left to the discretion of the coastal nation. The ILC has
made the following observations in this regard:

“there is no uniform standard by which States in practice determine this line.

However, the predominant rule for determining the low-water mark is that it stems
from the tidal datum. The tidal datum is defined in various ways, and it is each
country’s choice to cherry-pick any definition it chooses. Countries generally choose
lower-tide water marks, since that results in extended seaward territory. However,
there is very little range available for states to be able to exploit the tidal datum, since
the range of the tidal datum is usually minuscule and offers little scope to extend
territory.”

The 1982 convention contains no provisions for the use of low-water marks in conjunction
with “large-scale maps.” As a result, coastal countries should be able to form their usual
baselines with great ease. The United Nations Division for Ocean Affairs and the Law of the
Sea (UNDOALOS) has the most up-to-date information on this subject.

It's worth noting that a country's low-water marking on a map can cause disagreements
between that country and other coastal states.

In the case as, Guyana v. Suriname, it was noted that

“Guyana brought a claim to the forum of international arbitration in which it claimed

that Suriname’s baseline point was imprecisely marked.” The court, however, did not
agree with Guyana on this matter. Yet, as can be seen from this case, while the
question of determining baseline points can be brought to international tribunals, the
burden of proof is of course to be borne by the accusing country.”10

B. STRAIGHT BASELINES

Straight baselines are described as “artificial geometric patterns marked around coastal
regions as an alternative means to denote baselines in some specific conditions, such as
indented or archipelagic coasts. “This section will outline the standard requirement of straight
baselines, as well as relevant case law and legal frameworks.

10
Perm. Ct. Arb. 2007)
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To put it another way, the straight baseline technique is a method of delimiting sea territories
by combining some suitable points that are usually outlying extensions of land geographies or
coastal water marks. This line is drawn by connecting selected points in a 90-degree angle on
sea territories rather than over natural coastal low-water marks.

ARTICLE 7, defines Straight Baselines Techniques as given:

“ 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.”

In general practice, “low-water marks at coastal areas are customarily considered baselines.”
However, this conventional technique for marking baselines poses difficulties in outlining
baselines along a complex set of topographies, such as fringe islands and islets. 11In such a
situation, the technique of straight baselines—to demarcate land territory—facilitates
convenience.

Under, general practice baselines are drawn as follows :

“Low-water marks at coastal areas are customarily called baselines,” according to standard
practise. However, outlining baselines over a diverse collection of topographies, such as
fringe islands and islets, is difficult using this traditional technique for marking baselines.
Straight baselines, which are used to demarcate land territories, are useful in this case.

Straight baselines techniques are defined in United Nations to draw coastal State land
territories, as follows :

“A system of straight lines joining specified or discrete points on the low-water line,
6usually known as straight baseline turning points, which may be used only in
localities where the coastline is deeply indented and cut into, or if there is fringe of
islands along the coast in its immediate vicinity.”12

The straight baseline technique is only usable by coastal countries if the topography of the
coastal structure meets the requirements of Article 7 of the LOSC. “Low-water marks should
11
SILVINA BAKARDZHIEVA, ARCHIPELAGIC STATES AND BASELINES 14 (2016).
12
DIV. FOR OCEAN AFFAIRS AND THE LAW OF THE SEA, UNITED NATIONS SEA UNUN,
HANDBOOK ON THE DELIMITATION OF MARITIME BOUNDARIES 148 (2010).
22

be selected as acceptable points to draw straight baselines,” according to paragraph 1 of

Article 7, but it is widely agreed that points should be drawn on the furthest extensions on the
side of sea territories, rather than toward the internal waters of land territories. This
supposition is addressed in paragraph 2 of Article 7 of the LOSC, which resolves the
ambiguity by referencing low-water marks and stating that they should be used to draw
straight baselines.

1) BACKGROUND INFORMATION

The origins of Article 7 can be traced back to the International Court of Justice (ICJ) decision
in the Fisheries case, the work of the International Law Commission (ILC), which included
the Draft Articles on the Law of the Sea, and finally the deliberations of the First United
Nations Conference on the Law of the Sea (UNCLOS I), which resulted in adoption of 1958
Convention on Territorial sea.

1. International Court of Justice in the case of “Anglo-Norwegian Fisheries Case” 13

The Anglo-Norwegian Fisheries case is extremely relevant when discussing the legal
meaning and understandings of the straight baseline method for marking national territories,
as it aided in the creation of the procedure for marking baselines in a straight line. In this
case, the appropriate region is a portion of Norway, which has at least 120,000 islands of
different sizes and hundreds of scattered cliffs, reefs, and islets.

Norway used the straight baseline rule to demarcate its territory in this region in 1935,
connecting 48 base points in a straight line. As a result of this demarcation, Norwegian
authorities detained a large number of British fishermen who were fishing within the national
borders of Norway. The arrests were challenged by the United Kingdom, which took the
matter to the International Court of Justice (ICJ) in 1949.

International Court of Justice, in the year 1951 held as,

13
Fisheries (United Kingdom v. Norway) [it’s 51] ICJ Rep 116, 127.
23

“Where a coast is deeply indented and cut into the baseline becomes independent of
the low water mark, and can only be determined by means of a geometrical
construction.”14

Here, the court explained that, in the specific situation where a coast is deeply scooped or cut,
the baseline is not to be necessarily drawn by low-water marks but can be drawn by some
calculated geometric patterns in a straight line by joining located base points.

The court clarified that, in the case of a coast that has been “ deeply scooped or cut”, the
baseline does not have to be drawn by “ low-water marks” but can be drawn by joining
located base points in a straight line using certain measured geometric patterns.

Court have added following things, as it notes :

“The principle that the belt of territorial waters must follow the general direction of the coast
makes it possible to fix certain criteria valid for any delimitation of the territorial sea; these
criteria will be elucidated later. The court will confine itself at this stage to noting that, in
order to apply this principle, several States have deemed it necessary to follow the straight
base-lines method and that they have not encountered objections of principle by other States.
This method consists of selecting appropriate points on the low-water mark and drawing
straight lines between them.”15

In this case, the International Court of Justice established the rule that the straight baseline
method of demarcating baselines should be used in the general direction of the coast. “The
court added that the rule was chiefly established by the customary practices of states, many of
which had employed the straight baseline method to demarcate their territories and no other
neighbouring states had contested or objected to these demarcations. Because other countries
had used this method for a long time, the ICJ also decided that the use of the straight baseline
method to delineate baselines of countries was in conformity with statutory and customary
international laws.”16

The International Court of Justice for drawing straight baselines, developed, three rules in
order to specify the techniques for delimiting baselines by the straight baseline method

14
Fisheries (United Kingdom v. Norway) [1951] ICJ Rep 116, 127.
15
DIXON ET AL., supra note 53, at 359.
16
F.A. ENGELEN, INTERPRETATION OF TAX TREATIES UNDER INTERNATIONAL LAW 11 (2004)
24

1. The firstly, it says that, The straight baseline must not deviate significantly
from coastal lines and must be defined in the general direction of the coast,
since the land itself provides the right to demarcate baseline boundaries.
2. The secondly, it states that water within the new demarcations laid within the
straight baselines had to be closely linked to the land domain.
3. The thirdly, it states that when establishing any straight baselines, historical
trade and economic practises within the region had to be taken into account.
And the International Court of Justice ruled unanimously that Norway's use of
a straight baseline technique was legal under international law.
2. Straight Baselines Under Article 7

A coastal state under Article 7, to use straight baselines instead of or in addition to standard
baselines, so that they are drawn in the same manner as normal baselines, further it provides
as “the coastline is deeply indented and cut into, or if there is a fringe of islands along the
coast in its immediate vicinity”. The 1982 Convention does not define, “What does a deeply
indented and cut into coastline, island fringe, or immediate vicinity mean.”

The straight baselines must be drawn to satisfy several requirements: “they must not depart
from the general direction of the coast, 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,
they shall not be drawn to and from 1ow-tide elevations, and they shall not cut off the
territorial sea of another State from the high seas or an exclusive economic zone.”

CONDITION TO DRAW STRAIGHT BASELINES

Under Article 7, it says “ straight baselines” can be drawn by the “ coastal state” has
to, if following requirements are meet, as follows

a. The coastal State can drew straight baselines “Where a coastline is

deeply indented and cut into .”
b. The coastal State can drew straight baseline, “When there is a fringe
of islands along the coast in its immediate vicinity” . or
c. The coastal State can drew straight baseline “Where because of the
presence of a delta or other natural conditions the coastline is
highly unstable.”
25

RESTRICTIONS ON DRAWING OF STRAIGHT BASELINES

The rights of coastal states to use the straight baseline approach are subject to the
following four restrictions, as follows

1) Under Article 7 (3), it states that to use straight baselines “ it must not depart
to any appreciable extent from the general direction of the coast”
2) Under Article 7 (3), it states as, sea area have been within the baselines must be
“ sufficiently linked to the land domain to be subject to the regime of
internal waters” .
3) Under article 7 (4) “Straight baselines” must not be drawn to and from “
low-tide elevations”, except in the case:
o Where lighthouses or similar installations that are “ permanently
above sea level have been built on the low-tide elevation,” or
o Where the drawing of baselines to and from a “particular low-
tide elevation has received general international recognition” and,
4) Under article 7 (6) to use straight baselines it must “ not cut off the
territorial sea of another State from the high seas or the exclusive
economic zone”

Requirements Under Article 7

 GENERAL REQUIREMENTS UNDER ARTICLE 7 PARA 1 FOR USING

STRAIGHT BASELINES TECHNIQUES,

“It establishes the rule that the straight baseline technique can be employed in
two situations: one, where the coastal line is deep or cut; and, two, where the
islands are dispersed close to national land or coast.”17

 Requirements under Article 7 para 2 for using straight baselines in particular

situations in which baseline undergoes natural changes, as follows:

“ It articulates that, in situations where natural coastline is unstable, base

points should be drawn to the farthest outward low-water marks toward sea
territories.”18
17
Article 7 (1), LOSC.
18
Article 7 (2), LOSC.
26

 Under Article 7 para 3, it states:

“that the straight baseline must not diverge extensively away from the natural
direction of the coast, and must maintain a close distance to internal waters
and land, while marking the baseline points to draw a straight line.”19
 Under Article 7 (4) states as to draw straight baselines from “low tide elevations”.
Straight baselines can be used in only two circumstances, it stated as:.

“first, where installations such as lighthouses are already installed on these low-tide
elevations; and, second, where international customary practices have approved such
markings. Low-tide elevations are explained as the land area that is above water in
low tides and submerged in high tides. In 2009, the ICJ, following Article 13 of the
LOSC, established that low-tide elevations could not be used to mark base points to
define maritime jurisdiction.”20

 Under Article 7 (5) and (6) states about , “economic interests”.

“Article suggests that the economic interests of the region with regard to their
historical practices must also be weighed in relation to the validity of marking straight
baselines along coasts.21 Finally, Paragraph 6 establishes that straight baseline
demarcations must not cut off the territorial sea of other contingent state’s economic
or high seas zones.” 22

Thus, all of of paragraph of Article 7 incorporated from the landmark case of “Anglo-
Norwegian Fisheries Case”.

Article 7 with a wider view, it states

“three paragraphs, namely 1, 2, and 3, address the requirements and conditions of

topographical formations of coastal regions, with special regard to unstable natural
fluctuations and fringe islands.23 Three other paragraphs, namely 4, 5, and 6,
incorporate regulations regarding international customary law, historical practices,
and international consensus by not injuring the economic aspect of coastal regions.”
19
Article 7 (3),
20
Qatar v. Bahrain. Judgment, 2001 I.C.J. (Mar. 16, 2001).
21
ROACH & SMITH, supra note 21, at 65.
22
GEORGE K. WALKER, DEFINITIONS FOR THE LAW OF THE SEA: TERMS NOT DEFINED BY THE
1982
23
HUI-GWON PAK, THE LAW OF THE SEA & NORTHEAST ASIA: A CHALLENGE FOR
COOPERATION 19–20 (2000).
27

ISSUES RELATING TO BASELINE

The main problem with the straight baseline rule, however, is the uncertainty in the given
requirements for drawing baselines.

EXAMPLES, such as ,

“the straight baseline test requires that to mark a straight baseline the coastal line must
be indented or cut into, or include fringe islands.”24 Further test to use straight
baseline did not “delimit and define the specificities of the maximum allowed length
of the straight baseline, the acceptable length of the indented curves in the coast, or
the number of islands, islets, or rocks to be considered fringe islands.” . This
ambiguity causes doubt and makes drawing straight baselines extremely subjective.
As a result, countries will mark their baselines exorbitantly.

The For example,

“Burma has marked a 222-mile straight baseline and subsequently appropriated 14,300
square miles into its internal waters, equivalent to the entire area of Denmark.25 Similarly,
Vietnam has drawn a 161-mile straight baseline, which has encompassed a considerable
expanse of sea territory into its internal water”.26

The International Court of Justice, in the case of Anglo-Norwegian case, it was held that:

“The delimitation of the sea areas has always an internal aspect, it cannot be
dependent merely upon the will of the coastal state as expressed in its municipal law.
Although it is true that the act of delimitation is necessary in unilateral act, because
only the coastal state is competent to undertake it, the validity of the delimitation with
regard to other States depends upon international law.”27

International Court of Justice, in case of Qatar v. Bahrain. It is states as :

24
CHURCHILL & LOWE, supra note 10, at 3.
25
ROACH & SMITH, supra note 21, at 20.
26
DON MCRAE & GORDON MUNRO, ON CANADIAN OCEANS POLICY: NATIONAL STRATEGIES
AND THE NEW LAW OF THE SEA 223 (2012).
27
THOMAS COTTIER, EQUITABLE PRINCIPLES OF MARITIME BOUNDARY DELIMITATION 398-99
(2015); see also, RALPH ZACKLIN, THE CHANGING LAW OF THE SEA: WESTERN HEMISPHERE
PERSPECTIVES 91 (1974).
28

“the method of straight baselines, which is an exception to the normal rules for the
determination of baselines, may only be applied if a number of coordinates are met.
This method must be applied restrictively.”28

Another issue in the drawing of straight baselines under Article 7 of the LOSC is that there is
no uniform customary international practice in regard to the rules under Article 7.29 This is
mainly because the international practices of each coastal state when marking straight
30
baselines differ enormously. Furthermore, frequent baseless objections from the EU and
most particularly the US, against every demarcation of straight baselines—often even when
they do not border affected areas—have made opinio juris on this matter more convoluted
and challenging to achieve unanimous consensus.31 Furthermore, the prerequisite of not
infringing the maritime zones of neighbouring coastal countries to ensure freedom of
32
navigation is also not consistently reflected in customary international practices. For
instance, France did not infringe Monaco’s sea territory or EEZ by marking its straight
baseline. But, on the other hand, Croatia did infringe Bosnia and Herzegovina’s maritime
jurisdiction of EEZ.

2) EXCESSIVE DEMARCATION OF BASELINES

States have generously demarcated their baselines to assert unreasonable maritime

jurisdictions for nearly 30 years. These extravagant baseline arguments arose from the lack of
an objective test in Article 7 of the LOSC. As a result, researchers from all over the world
have been studying the LOSC and its definitional approach to baselines.

CLIVE SCHOFIELD, has made remarks under Article 7, as follows :

“that the conditions for straight baselines in the LOSC allow every country of the
world to mark straight baselines around their coasts, since every coast in the world is
indented or cut into to a greater or lesser extent. Over time, this assertion has been
proven correct, as many countries have exploited Article 7 to best suit their interests
by demarcating straight baselines very generously.”

28
SOHN, NOYES, FRANCKX, & JURAS, supra note 3, at 252; see also Maritime Delimitations and Territorial
Questions Between Qatar and Bahrain (Qatar v. Bahrain), Judgment, 2001 I.C.J. (Mar. 16, 2001).
29
ALEX G. OUDE ELFERINK, STABILITY AND CHANGE IN THE LAW OF THE SEA: THE ROLE OF
THE LOS CONVENTION 108 (2005).
30
The See ROACH & SMITH, supra note 21, at 20; see also MCRAE & MUNRO, supra note 170.
31
See TANAKA, supra note 57, at 47–54.
32
See TANAKA, supra note 57, at 47–54.
29

The US and the International Court of Justice have sought to rein in these excessive
baselines. Also in the absence of obvious contingent interests, the US has consistently
questioned straight baseline demarcations by nations around the world through its “Freedom
of Navigation” policy

3) STATE PRACTICE

By state practices, “it can be noted that, particularly over the last few decades, states in the
Asia-Pacific region tend to demarcate excessive straight baselines to include as much sea
waters in their internal waters as they can. These states have characteristically drawn straight
baselines to secure their personal interests by exploiting the vagueness of Article 7 of the
LOSC. This aggressive behavior among coastal states is due, at least in part, to the absence of
significant penalties in the legal framework.”

In the most recent authoritative study on straight baseline state practice, Roach and
Smith identified over, “ 75 States that had delimited straight baselines along portions of
their coasts, with a further 7 States having enacted enabling legislation but not yet
having published coordinates or charts of straight baselines. Some coastal States which
would otherwise be eligible to declare straight baselines have hitherto chosen not to
do so.”

In this regard, it is worth noting that, under Article 7, coastal States “may” use the method of
straight baselines; however, they are not required to do so even if their coastal configurations
meet the requirements outlined in Article 7.

Significance of state practice

Many publicists have remarked on state practise in relation to Article 7, raising the question
of how important state practise is in relation to Article 7 and whether such variations have
resulted in new customary international law about straight baselines.

Regarding state practice Churchill has stated that:

“Although the amount of non-conforming state practice is substantial, it still

represents no more than about a quarter of coastal States parties to the
Convention. It is also quite diverse, in the sense that it does not point to any
30

particular way in which straight baselines should be drawn: in reality, it seems

to suggest no more than that a coastal State may draw straight baselines
however it likes. All this, coupled with the fact that at least eight different
States and the EU have protested to one or more baseline claims, leads to the
conclusion that practice relating to the drawing of straight baselines does not
amount (yet) either to an agreed interpretation of the Convention or a new
rule of customary international law.”33

Since a number of directly affected countries have adopted a practise based on a “flexible
interpretation” of Article 7, it should be considered as part of the treaty's interpretation.

Unfortunately, the number of States that have objected to applicable state practise in this
regard is very limited in comparison to the number of currently interested States

4) BASELINE PUBLICITY

ARTICLES 16 (1)

“requires that the normal baseline be shown on large-scale nautical charts, officially
recognized by the coastal State”.

Additionally, the coastal State must include a chart of geodetic data with geographic
coordinates. On official maps, the United States portrays the baseline with scales ranging
from 1:80,000 to around 1:200,000. According to article 6, drying reefs used for identifying
base points must be depicted on nautical charts using a globally recognised symbol.

To comply with article 16 (2) , “the coastal State must give due publicity to such charts or
lists of geographical coordinates, and deposit a copy of each such chart or list with the
Secretary-General of the United Nations.”

33
Robin R. Churchill, “The Impact of State Practice on the Jurisdictional Framework Contained in the
LOS Convention” in Alex G. Oude Elferink (ed), Stability and Change in the Law of the Sea: The
Role of the LOS Convention (2005) 91, 108; see also the more recent view of Yoshifumi Tanaka, The
International Law of the Sea (2012) 50.
31

Bay closure lines that pass the semi-circle test must be made public, either by map indications
or specified geographic coordinates

3.2 INTERNAL WATERS

The word “internal waters” was coined at a relatively late stage in the evolution of the current
conceptual structure of international maritime law, and it was only after World War II that it
became widely accepted.

Article 8 (1) defines Internal waters as :

“internal waters as the waters on the landward side of the baseline from which the breadth of
the territorial sea is measured.”

The internal waters regime was given an authoritative restatement by “the International
Court of Justice in the Fisheries Case (UK v Norway”) :

“where the concept of internal waters was defined as part of the Court assessment
of drawing of straight baselines. The ICJ outlined the flexible nature of the concept
and distinguished between historical waters and internal waters (at 130 and 133).
After some initial reservation especially by adversely affected States, the view of
the Court was, however, acknowledged by the international community and made
the basis for modern treaty law of straight baselines in the 1958 UN Convention on
the Territorial Sea and the Contiguous Zone and the UN Convention on the Law of
the Sea, Part II.”344

ARTICLE 8 (2) : It is an exception to general rule innocent passage in internal waters, as

follows

“that innocent passage is not suspended in waters that become internal waters by
the drawing of straight baselines according to Art. 7 UN Convention on the Law of
the Sea.” However, if the baselines are drawn purely on the basis of customary law
relating to the internal waters regime, this rule will not necessarily apply.

34
The International Court of Justice in the Fisheries Case (UK v Norway) (Merits) ([1951] ICJ Rep 116)
32

The internal waters regime is governed by customary law. The only regimes in the law of the
sea that are strictly governed by general customary law are internal waters and the partly-
overlapping system of historical waters. Both regimes have been deliberately left out of the
United Nations Conventions on the Territorial Sea and the Contiguous Zone, as well as the
United Nations Convention on the Law of the Sea. Furthermore, no effort has been made to
conduct an official analysis of internal waters.

In relation to the legal system of internal waters, three issues have been widely discussed:

 first, the lack of any “ right to innocent passage in internal waters”;

 and, second, “the status of foreign ships in internal waters, especially in ports”.
 and, third, “the nature of a special right of entry to commercial maritime ports for
foreign merchant ships.”

Internal waters (which can also be referred to as national or interior) waters are those waters
which lie landward of the baseline from which the territorial sea and other maritime zones are
measured. Any natural or artificial body or stream of water within the territorial limits of a
country such as a bay, gulf, river mouth, creek, harbor, port, lake or canal are referred to as
internal waters or inland waters. Thus, internal waters of a maritime character mostly
comprise bays, estuaries and ports, and waters enclosed by straight baselines. Waters
enclosed by the baseline drawn around the outermost islands of an archipelagic State have a
special status, but each separate island within the archipelago is entitled to its own baseline
drawn according to the normal principles, so that its ports bays and so on may be constituted
as internal waters

1. PORTS

Article 11 of the Convention in making provision for ports states that;

33

“For the purpose of delimiting the territorial sea, the outermost permanent harbour
works which form an integral part of the harbour system are regarded as forming part
of the coast. Off-shore installations and artificial islands shall not be considered as
permanent harbour works.”

Article 1 of the “Convention on the International Regime of Maritime Ports”. provides that

“all ports which are normally frequented by sea-going vessels and used for foreign
trade shall be deemed to be maritime ports within the meaning of the present Statute.”

port has been defined as

a port where ships can dock and cargo can be transferred. They're typically found
along the water's edge, whether it's an ocean, a sea, a river, or a lake. Private interests
or government bodies which provide cargo-handling equipment such as cranes
(operated by long shoremen) and forklifts for use in ship loading and unloading.
Canneries and other manufacturing facilities are often found nearby.

Also they, are of significant Use for, international trade and commerce.

1. The Right access Ports

The exclusion of any general right of innocent passage through internal waters and the
presence of jurisdiction over them logically means the absence of any right in customary
international law for foreign ships to access a State's ports or other internal waters. In fact,
there is very little support for such a right. “According to a great principle of public
international law, the ports of any State must be accessible to foreign vessels and can only be
closed when the State's essential interests warrant it,' said a dictum from the award in the
Aramco arbitration in 1958.”

However, the tribunal’s cited authorities do not accept the dictum, and the proposition has no
other support. Although it is undeniably true that a country’s international ports are assumed
to be open to international commerce “the right to exclude foreign warships is undoubted,
this presumption has not acquired the status of a right in customary”.35

BATES CASE

35
See the 1975 UNCTAD study, ‘Economic Co-operation in Serchant Shipping, Treatment of Foreign Merchant
Vessels in Ports’, Un Doc. TD/BC.4/136 (9 September, 1975); de La Fiyyete, op. cit. in ‘Furthr reading’.
34

“It is clear that States have the right to nominate those of their ports which are to be
open to international trade – that is, to those ships which the State chooses or binds
itself by treaty to admit to its ports. This rule, which can be traced back at least as far
as Bates case England in 1610, often finds expressions in laws designating ports of
entry for customs, immigration and international trade purposes.”

Secondly, It is widely acknowledged that a State could close its international ports to protect
its viral interests without violating customary international law, and it would be difficult to
demonstrate that any interests invoked by a State were insufficient to justify closure. State
have, on many occasions, closed their ports to foreign ships in order to defend important
interests. Those interests have included the safeguarding of coastal State security and of good
order on shore and the prevention of pollution and ports have also been closed in order to
signal political displeasure.

Furthermore, states possess elaborate rights to prescribe conditions for access to their ports.
The International Court in the Nicaragua case note “ that internal waters are subject to the
sovereignty of the State and that it is by virtue of its sovereignty that the coastal State may
regulate access to its ports”. Similarly, the US Supreme Court in Patterson v. Bark Eudora
(1903), stated that “ the implied consent to enter our harbours may be withdrawn, and if this
consent may be wholly withdrawn, it may be extended upon such term and conditions as the
government sees fit to impose.” There is a great deal of state practice setting out the
conditions of entry to ports; but more significant than the measures adapted unilaterally by
State are the provisions in multilateral treaties that envisage the refusal of entry to ports to
ships that do not comply with measures adopted under the treaties: the SOLAS and
MARPOL Conventions are examples. Indeed, the Convention itself quite clearly
presupposes that States may set conditions for entry to their ports. It is however; possible
that closure or conditions of access which are patently unreasonable or discriminatory be
internationally responsible even if there were no right of entry to the port.
35

In the case of “Creole” 1853 and “Kates hoffs case”

“The one case where there is a clear customary law right of entry to ports concerns
ships in distress. If a ship needs to enter a port of internal waters to shelter in order to
preserve human life, international law gives it a right of entry. This was recognized in
cases such as the Creole (1853) and the Rebecca or Kate Hoff case (1929)”.

“ It is, however, unsafe to extend that principle further, in particular, it is by no

means clear that a ship has a right to enter ports or internal waters in order to save its
cargo, where human life is not a risk. At least in circumstances where the condition of
the ship has a right of serious pollution, the better view is that coastal State may
forbid such ships to enter their internal waters if measures have been taken to save the
lives of persons on board: the decision should be taken by weighing the gravity of the
ship’s situation against the probability degree and kind of harm to the coastal State
that would arise were the ship allowed to enter.”

While there is no general right of entry into ports for foreign merchant ships in customary
law, the position in treaty law is very different, for many treaties confer rights of entry. Most
commonly, such rights are found in bilateral treaties of ‘Friendship Commerce and
Navigation’, whose numbers run into many hundreds. Sometimes, more specific agreements
have been concluded: for example, a dozen bilateral agreements giving rights of entry were
made in connection with the voyages of the United Sates Nuclear Ship Savannah in 1964 . In
addition, the multilateral Convention and Statue on the International Regime of Maritime
Ports, 1923, provides for a reciprocal right of access to, and equality of treatment within
maritime ports; it has not, however, been widely ratified. The provisions of the European
Community Treaty on non-discrimination and free movement of goods would be seen to give
the member State a similar reciprocal right of access to each other’s ports. The right of State
to close their maritime ports may also be limited in certain circumstances by treaty
obligations to permit free transit for trade purpose: Article V of the General Agreement on
Tariffs and Trade is one example. Thus, despite the absence of any clearly established right
of entry to ports in customary law, most States enjoy such rights under treaty.
36

Finally, it should be mentioned that although rights of access, to the extent that they exist,
imply a right to leave ports, the right of exit is subject to important limitations. Thus, States
are entitled to arrest ships in port, in accordance with their normal legal processes. For
example, vessels may be seized for customs offences. Similarly, ships in port are liable to
arrest as security in civil actions or actions in rem against the ship itself, though under 1952
Brussels Convention. Furthermore, States may detain ships which are in an unseaworthy
condition, or otherwise, unfit to proceed to sea. States may also require foreign ships to
obtain clearing papers from the port authorities, certifying compliance with customs and
health formalities, before they leave port. These right; flow from the sovereignty of the State
in its ports, and submission to them is arguably an implied condition of admission to the
ports.

Two specific points concerning port State jurisdiction over foreign ships, and the detention of
such ships in port, should be noted. First, port State jurisdiction is considerably extended in
the case of pollution offences by the Law of the sea Convention. Secondly, any ship that has
been arrested for a violation of a State’s Exclusive Economic Zone laws must be promptly
released (as must the crew) upon the posting of a reasonable bond or other security: it may
not be detained in port.

1.1 – The coastal State’s jurisdiction over foreign vessels in its internal waters
It is a general view that “internal waters form an integral part of the territory
of a coastal State”. 36 This indicates that the coastal State in this maritime area
normally exercises the same legal regime as it does within its land territory.
Thus, the regime of internal waters is merely touched upon in the legal
framework related to the law of the sea.
The spatial scope of the territorial sea is defined by the baselines measured by
the coastal State. The baseline is the line from which the outer limits of the
territorial sea and other maritime zones are measured.37 In accordance with
Articles 5 and 7 of the LOSC, two different methods for the construction of such
baselines are identified in the Convention.
36
Haijiang Yang, Jurisdiction of the Coastal State over Foreign Merchant Ships in Internal Waters and
the Territorial Sea (Berlin: Springer, 2005,) 45.
37
R.R Churchill and A.V Lowe, The law of the sea–third edition, (New York: Juris Publishing, 1999) 31.
37

The primary method of measuring the baselines is to apply the rule of normal
baselines contained in Article 5. This is also explicitly stated by the wording
“except where otherwise provided in this Convention”. Furthermore, the normal
baseline “is the low water line along the coast”. 38 As the internal waters are
recognized as part of a state’s territory, the coastal State has “sovereignty over
those waters fully encompassing prescriptive and enforcement jurisdiction”. 39By
entering the internal waters of a coastal State, vessels have thus accepted to be
subject to the laws and regulations of the State.
When the baselines are established, one can identify the spatial scope of the
internal waters. In accordance with Article 8 of the LOSC, the internal waters are
recognized as being the “waters on the landward side of the baseline of the
territorial sea”. Internal waters embrace “different kinds of natural waters or
40
artificial waterways of a state”. This naturally includes “lakes, rivers, bays,
gulfs, estuaries, creeks, ports and canals”41
Yet another evidence of the sovereignty of the coastal State is the lack of any
right of innocent passage for foreign vessels through internal waters. The only
exception to this rule is found in Article 8(2) of the LOSC, “ where it is stated
that “[w]here the establishment of a straight baseline…. has the effect of
enclosing as internal waters areas which had not previously been considered as
such”, the right of innocent passage of foreign vessels still exist. Furthermore,
the right of passage seems to exist where a situation of force majeure occurs.

Except for sovereign immune vessels, all foreign vessels within internal water or a
port are subject to the criminal and civil laws and regulations of a coastal state,
subject to the coastal state’s discretion as to whether jurisdiction will be exercised in
all instances. In cases of minor criminal matters concerning the internal discipline of
a ship, the coastal State may not seek to apply its criminal law. However, if a

38
In the Fisheries Case (UK v. Norway), the International Court of Justice (ICJ) recognized the use of
straight baselines. As a direct result of the judgement, Article 7 of the LOSC forms an exception from
Article 5 and enables the coastal states to draw straight baselines where the criteria listed in the Article
are met. That the coastal states are empowered to draw straight baselines where this is reasonable due to
special geographical features must be said to create a flexible and equitable system in the law of the sea.
See Anglo-Norwegian fisheries, UK v. Norway, Order, 1951, ICJ 117 (Jan. 18).
39
D Rothwell and T. Stevens, The International Law of the Sea (Oxford: Hart Publishing, 2010) 54. See
also N. Klein, Maritime Security and the Law of the Sea, (New York: Oxford University Press, 2011) 65.
40
Rainer Lagoni, “Internal Waters,” in Encylopedia of Public International Law II, ed. Rudolf Berhardt
(Heidelberg, 1995): 1034-1036, 1034.
41
Yang (2005), 47.
38

criminal offence affects the interests of the coastal state, then the coastal state will
most probably seek to prosecute. Greater difficulty exists with respect to those
vessels which have entered internal waters or a port under conditions of force
majeure or distress. State practice has traditionally granted such vessels a limited
immunity from prosecution; however, there is emerging evidence that providing lives
are not at risk some states will bar access to vessels that pose a substantial marine
pollution risk even though that vessel may technically be in distress.42

In its internal waters, a coastal State is entitled to protect itself against potential
threats. This is most evident due to the fact that the coastal State in certain
situations is entitled to close its ports to foreign vessels. The right to such
protection was recognized in the 1958 Saudi-Arabia v. Aramco arbitration,
where the arbitral award stated that “according to a great principle of public
international law, the ports of every State must be open to foreign merchant
vessels and can only be closed when the vital interests of the State so require”.
43
Measures may thus be undertaken “to safeguard good order on shore, to signal
44
political displeasure or to defend vital interests”. One “vital interest” recognized
45
in this matter is the protection of public safety, which might apply when a
foreign submarine is operating in the internal waters without consent. On the
other hand, ports are recognized to lie under the territorial sovereignty of the
coastal State. Thus, the State may be entitled to “regulate foreign vessels’ entry to
its ports”38 and close the ports in any matter. However, it seems clear that the
coastal State is entitled to close its ports when it considers this to be a
necessary measures.

It is clear that the security need of the coastal State in its internal waters enables it to
take measures to protect itself. What these measures might include will be discussed in
chapter.

42
R. Rothwell & T. Stephens,op cit.55-56
43
Saudi-Arabia v. Arabian American Oil Company (ARAMCO) 1963, in G. Brugmann, Access to Maritime
Ports (Norderstedt: Books on demand, 2003) 1.
44
Klein, Natalie. Maritime Security and the Law of the Sea (New York: Oxford University Press, 2011,)
67.
45
De La Fayette, “Access to ports in International Law,” in The International Journal of Marine and
Coastal Law 11 (1996): 1-22, in N. Klein, Maritime Security and the Law of the Sea, 67.
39

4 CONCLUSION AND RECOMMENDATIONS

The Committee notes that a large number of coastal States have attempted to declare straight
baselines in reliance on Article 7 of the LOSC. Although Article 7 includes a number of
limitations, it also provides a legal framework through which coastal states can legally
interpret the drawing of straight baselines to represent their unique circumstances.

The Committee notes that in Qatar v Bahrain the ICJ indicated that “the method of
drawing straight baselines is to be applied restrictively.”

There is, however, substantial evidence of state practise that, while applying straight
baselines to different geographic environments, is generally in accordance with Article 7 and
compatible with the indeterminate principles it contains. There is also evidence that some
States have changed their straight baselines to adhere to the LOSC in response to protests by
some States over practises not deemed to be in compliance with Article 7.

Several publicists have criticised the Article 7 straight baseline regime, according to the
Committee. In a 1992 paper, Reisman and Westerman argued that the regime of straight
baselines necessitates a rethinking.

The coastal state has wide powers over the territorial sea, and especially over its internal
waters, as demonstrated throughout this paper. The coastal State can place a significant
burden on international vessels by requiring them to comply with the State's laws, thanks to
its ability to legislate in varying degrees in various areas. It may also assert jurisdiction over
violating ships and have them brought before its court. Foreign vessels must, therefore, abide
by the regulations of the coastal state in so far as they are within the ports or internal waters
of that state. Foreign vessels have an innocent passage right in the territorial sea if they
follow the coastal State's properly publicised legislation, which is allowed under the
Convention. If foreign vessels operating inside a state's internal waters violate the laws and
regulations of the coastal state, the latter may take a number of measures against the non-
compliant vessel.

As a result of the economic importance of ports and internal waters, coastal states have strong
powers to intervene against foreign vessels. However, if a vessel follows the rules outlined in
international conventions such as UNCLOS and national laws enacted in accordance with
those conventions, it will be permitted to freely navigate the internal waters. Furthermore,
40

detaining a vessel and causing a global crisis is not always politically appropriate to the
international community.

5 BIBLIOGRAPHY
41

 Roach, J. Ashley, “Offshore Archipelagos Enclosed by Straight Baselines: An

Excessive Claim?”, Ocean Development & International Law 2018,
 INTERNATIONAL LAW ASSOCIATION BASELINES UNDER THE
INTERNATIONAL LAW OF THE SEA FINAL REPORT (2018) Members of the
Committee: Captain J. Ashley Roach (American): Chair Professor Donald R.
Rothwell (Australia): Rapporteur.
 Faculty of Law Does a coastal State have the right to use potentially lethal force
against submarines in its internal waters and territorial sea? Supervisor: Magne
Frostad Word count: 17 997 — Ingrid Solstad Andresen Master thesis in Law of the
Sea … September 2015.
