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Bluebook 21st ed.
William T. Burke, Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman, 25 OCEAN DEV. & INT'l L. 119 (1994).
ALWD 7th ed.
William T. Burke, Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman, 25 Ocean Dev. & Int'l L. 119 (1994).
APA 7th ed.
Burke, W. T. (1994). Straight baselines in international maritime boundary
delimitation by michael w. reisman and gayl s. westerman. Ocean Development and
International Law, 25(1), 119-124.
Chicago 17th ed.
William T. Burke, "Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman," Ocean Development and International Law
25, no. 1 (1994): 119-124
McGill Guide 9th ed.
William T. Burke, "Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman" (1994) 25:1 Ocean Dev & Int'l L 119.
AGLC 4th ed.
William T. Burke, 'Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman' (1994) 25(1) Ocean Development and
International Law 119
MLA 9th ed.
Burke, William T. "Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman." Ocean Development and International
Law, vol. 25, no. 1, 1994, pp. 119-124. HeinOnline.
OSCOLA 4th ed.
William T. Burke, 'Straight Baselines in International Maritime Boundary Delimitation
by Michael W. Reisman and Gayl S. Westerman' (1994) 25 Ocean Dev & Int'l L 119
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Ocean DevelopmetawilatenationalLaw. Volume 25.pp. 119-123 0090-8320194 $10.00 +.00
Printed in the UK. AlIrights reserved. Copyright Q 1994 Taylor & Francis
Book Review
Michael W. Reisman and Gayl S. Westerman. StraightBaselines in International
Maritime Boundary Delimitation. 1992. New York: St. Martin's Press. 242 pp.
ISBN 0-312-06034-3. $59.95.
Reviewed by William T. Burke
University of Washington
School of Law
Seattle, Washington 98105, USA
Professors Reisman and Westerman have written an incisive, critical, and provocative
analysis of the law and practice of straight baselines used for delimitation of ocean
boundaries. The basic postulate of the book is that straight baseline systems were origi-
nally conceived, and have been used, primarily for the purpose of extending national
jurisdiction rather than for the ostensible purpose of simplifying the outer limits of na-
tional jurisdiction in complex geographical settings. Although the writers acknowledge, a
bit reluctantly one surmises, that straight baselines can contribute to a modem public
order of the ocean, they argue (and provide charts for visual demonstration) that many
states abuse the principles supposedly governing their use. The objective in these situa-
tions of pathological use is simply to acquire a greater overall area of national jurisdic-
tion or to increase the scope of such jurisdiction by displacing an area of lesser coastal
jurisdiction with an area of greater jurisdiction.
The general policy objective sought by their approach is maintenance of as large an
area of inclusive use and authority as is consistent both with the recent extension of
national jurisdiction, largely for economic purposes, to 200 miles and with the specific
principles on straight baselines included in the 1958 Convention on the Territorial Sea
and the Contiguous Zone and the 1982 United Nations Convention on the Law of the
Sea. Their argument, in brief, is that after the community of states created the exclusive
economic zone (EEZ) in order to establish a wider zone of coastal jurisdiction, "exorbi-
tant" or "extravagant" use of straight baselines for this same purpose is no longer neces-
sary or desirable (if it ever was), given the costs to the community as a whole. An
unacceptable use of straight baselines is one that would not accord with strict interpreta-
tions of baseline principles, such as those offered by the authors.' Less strict interpreta-
tions would apparently continue to be unacceptable, such as some of those offered by
the Group of Technical Experts on Baselines convened by the United Nations Office for
Ocean Affairs and the Law of the Sea.2
The authors take issue with those who believe that the principles on straight baselines
in the 1958 Convention on the Territorial Sea and the Contiguous Zone" and the 1982
United Nations Convention on the Law of the Sea4 are so general, vague, or ambiguous
that coastal states have an easy task of justifying almost any system of straight baselines.
Certainly the evidence is pretty clear that numerous national claims are based on ex-
travagant interpretations of the applicable principles, most of which are common to both
119
120 Book Review
the 1958 Convention (Article 4) and the 1982 Convention (Article 7) (the latter has a
few additional rules).
But the authors reject the position that the basic principles in the treaty must be
interpreted as providing little restraint on excessive national claims. To the contrary, in
their view, the provisions of Articles 4 and 7 can be interpreted strictly to serve the
fundamental policies and goals underlying the law of the sea: "[T]o define the rights of
the parties, to reduce the likelihood of conflict, to provide clear guidelines for mariners,
and to make an equitable allocation of ocean space and resources which may serve both
the exclusive and inclusive common interests of all states. . . " (p. 74).
Chapter 4 is devoted to elaborating, and justifying in terms of policy, strict interpre-
tations of the baselines provisions in the treaties, which the authors believe provide an
objective basis for delimiting acceptable straight baselines in accord with two basic pur-
poses: "[Riationalization of seaward boundaries by minimizing the irregularity of succes-
sive maritime boundary issues and internalizing those waters which are, in effect, inter-
nal" (p. 75).
The most fundamental point in the argument for strict interpretation of baselines
principles and requirements is that excessive baselines claims lead to including propor-
tionately larger areas within national jurisdiction, which are also subtracted from the
high seas. In addition, the longer baselines convert areas of territorial sea to internal
waters and areas of the EEZ to territorial sea. Sometimes high seas areas are changed
into internal waters. Proponents of these arguments see the consequence of these trans-
formations as loss of high seas freedoms or the equivalent navigation rights within areas
of national jurisdiction.
Some of these arguments cannot be accepted without qualification. It is unwarranted
to assume that straight baselines necessarily lead to proportionate encroachments on high
seas areas by moving the outer limit of the EEZ farther out to sea. Studies by geogra-
phers demonstrate that simply moving baselines farther from the coastal land mass does
not necessarily push the outer limit of the EEZ farther into the high seas. In a principal
modern study of maritime boundaries, J. R. V. Prescott states that the major effect of
moving the baselines away from the land mass is on the areas of maritime zones near
the coast "unless the straight baselines are drawn with a total disregard for the agreed
rules."' In a slightly different statement, Prescott adds that "[ilt is certain that the con-
struction of straight baselines along coasts will cause little erosion of the high seas by
fishing zones 200 n. miles wide, unless those baselines are drawn in total disregard for
customary rules."' (He contrasts this situation with lines drawn across excessively wide
bays, where an effect on the high seas commonly follows.)
From this perspective, the degree of intrusion on the high seas depends on the de-
gree of departure from straight baseline provisions in Articles 4 and 7. Prescott empha-
sizes that "total disregard" of the principles leads to such intrusion. Unless the departure
from principle is gross, the implication is that it probably does not matter much.
That there have been instances of total disregard, or at least of extremely liberal
interpretations of baselines principles, seems manifest. Whether the cumulative effect of
these and of other less exaggerated instances is as damaging as the authors suggest is not
so clear, at least to the writer.
As just noted, the effect of straight baselines as such is minimal at the outer 200-
mile limit, unless the departure from manifest rules is great. Also, in this instance and
others, the shift from one type of jurisdiction to another is often minimal. A change of
territorial sea to internal waters does not change the navigational regime of access for
vessels in transit. Waters so converted by a straight baselines system are still subject to
Book Review 121
the right of innocent passage just as they were before. However, a change of high seas to
internal waters is more significant, since the regime goes from freedom of navigation to
innocent passage, thus impacting aircraft and, in some opinions, military vessels as well.
But a change of high seas to EEZ has minimal impact on the navigation regime. Free-
dom of navigation applies in the EEZ as on the high seas, albeit in slightly less pure
form. The shift from high seas or an EEZ to territorial sea (necessarily a small area)
changes freedom of navigation to innocent passage. This would impact aircraft and sub-
marines directly, but is unlikely to have other noticeable impact. Whether the impact is
in one 12-mile strip more distant from the coast than another may have little signifi-
cance. To add weight to the difference, the authors suggest that the 1982 Convention
increased rather than decreased coastal state authority over innocent passage as com-
pared to the 1958 Convention. But this was certainly not the intent nor was such an aim
accomplished, as most observers see the convention. It is generally thought that the 1982
Convention circumscribed coastal authority by making changes in the 1958 provisions
on innocent passage to reduce coastal state discretion. Reduction was accomplished mainly
by adopting an explicit conception of what constitutes prejudicial passage and a better
articulation of coastal authority to regulate.
One other consideration concerning the change in regimes is that these shifts affect
not only access to the areas but the scope of coastal state jurisdiction within them. It is
not necessarily a loss to the general community of states that coastal states gain in juris-
diction over actual and potential incidents of marine pollution. Coastal states now have
almost no authority for anticipating or preventing pollution in the EEZ. Giving the coastal
state broader authority for this purpose over the large and increasing number of poorly
built, inadequately equipped, and incompetently manned tanker vessels is a gain and not
a net loss, if coastal states can effectively exercise their authority. The failure of interna-
tional mechanisms for protection of the marine environment is now almost lege-idary
and does not seem likely to be reversed soon.
Assuming that the authors' assessment of the harm to the community from exagger-
ated claims is well grounded, their proposals for remedial actions are mostly unexcep-
tionable. They reject the notion of reconvening a new law of the sea conference to adopt
a baseline protocol that would limit the opportunity for abuse. They recognize both that
such action is most unlikely and that if it were attempted, a more restrictive baseline
system would not be the result. This analysis and conclusion are probably close to the
mark.
A consideration they do not address, but which also involves possibly undesirable
outcomes, is the contingency of a Fourth UN Conference on the Law of the Sea in the
next two decades. Such a conference is not wholly beyond imagination, as much as most
developed states presently cringe at the prospect. The reason is that the 1982 Convention
is already showing significant fault lines, despite not yet coming into force. Foremost, of
course, is Part XI on deep seabed mining, now widely recognized as poorly designed
and increasingly irrelevant to the technologies and problems facing such activity when it
becomes economically feasible. This time may come in the next quarter century.
Other consequential deficiencies in the 1982 treaty include the high seas regime for
fisheries (or, more aptly, the absence of such a regime), the developing need for more
flexibility in permitting coastal state action to protect the marine environment in areas of
national jurisdiction, and the inappropriateness of the marine scientific research regime
to cope with research activity aimed at climate change and other questions of a global
nature. These and unknown other contingencies may over time generate sympathy for a
new look at the law of the sea.
122 Book Review
Instead of a new negotiation, which is admittedly a longer-range issue anyway, the
authors place their hopes on application of their suggested restrictive interpretation of the
current straight baselines provisions. In this context they examine the various entities and
organizations who might contribute to more effective application of such interpretations.
These range from the components of the United Nations itself, to specialized agencies,
regional organizations, and private groups.
Some alternatives by the authors seem less hopeful than others. For example, the
authors identify the United Nations Food and Agriculture Organization (FAO) as a fo-
rum for possible action. They observe that "[o]f all the non-maritime oriented interna-
tional organizations, FAO has possibly the most to gain and the most to contribute to the
rationalization of maritime boundaries. Preventing unwarranted extensions of national
sovereignty into the high seas protects the Common Heritage while promoting FAO's
developmental principles" (p. 214). This evaluation overlooks some contrary indications.
The "Common Heritage," as conceived in the 1982 Law of the Sea treaty, does not
include the waters of the high seas or its inhabitants, the fish and marine mammals.
Given the recent agitation about conservation on the high seas, FAO is more likely to be
interested in some modest form of extending national jurisdiction than in leaving fish to
continued unrestricted exploitation on the high seas, subject only to a general and largely
unenforced principle of conservation. The extension of sovereign rights (not sovereignty)
has been recognized by FAO and by states generally as a valuable opportunity for im-
proving fishery conservation, management, and development.' Unfortunately, the 200-
mile EEZ does not capture all high seas stocks and species, leaving some still subject to
free access and probable excessive exploitation. FAO might therefore have little interest
in restricting what would be perceived as a helpful extension of national fisheries juris-
diction, even if by a method that has defects.
The possibility of effective actions by some of these groups perhaps exists, but it
seems unlikely. The authors acknowledge that for many states the problems of straight
baseline claims are remote and not especially meaningful because states in general do
not experience either a particular loss or the generalized loss stemming from the shift in
jurisdiction. This seems to me to be an accurate assessment that is not likely to be
altered, even by the highly skilled and rational arguments offered in this book. This is
nonetheless an impressive piece of work, closely reasoned and strongly argued, and a
reviewer could be too pessimistic about this aspect of the future.
Notes
1. Professor Douglas Johnston raised this same question in his recent book on boundary
delimitation, but he answered somewhat differently: "Given the prevalence of 'exclusivist' pur-
poses in the traditional approaches to baselines delimitation, it might be questioned, in the after-
math of UNCLOS III, whether the same degree of importance should now be attached to this
type of ocean boundary-making, given the vast extension of coastal state jurisdiction that charac-
terizes the new law of the sea. This question cannot be answered simply. The relative importance
of seaward limits and baselines depends entirely on the facts of geography confronting each
coastal state. Some states are geographically advantaged in one way but not another; others are
favoured by nature in both ways; and a few unfortunate coastal states are precluded by geogra-
phy both from the benefits of a two-hundred-mile EEZ and from the advantages of securing
extensive inshore areas by reason of special coastal characteristics." D. M. Johnston, The Theory
and History of Ocean Boundary-Making 96 (1988).
Book Review 123
2. Professors Reisman and Westerman make several references to what they consider unac-
ceptably loose interpretations in the publication resulting from the meeting of the Technical Ex-
perts. UN Office for Ocean Affairs and the Law of the Sea, Baselines: An Examination of the
Relevant Provisions of the United Nations Convention on the Law of the Sea, UN Sales No.
E.88.V.5 (1989).
3. Apr. 29, 1958, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205.
4. Opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122 (1982), 21 1.L.M. 1261.
5. J.R.V. Prescott, The Maritime PoliticalBoundaries of the World 15 (1985).
6. Id. at 33-34.
7. But one largely missed in terms of the aggregate balance of gains and losses. FAO now
calculates that global fisheries as a whole earn no return on an estimated capital cost of $330
billion and in generating annual revenue of $70 billion also fail to cover the estimated $124
billion in operating costs. "Marine Fisheries and the Law of the Sea: A Decade of Change"
(FAO Fisheries Circ. No. 853, 1993) (prepared by FAO Fisheries Dept., with the assistance of
Francis T. Christy, Jr.). This is a special chapter (revised) of FAO, The State of Food and Agri-
culture 1992 (1993).
