The Status of Ruhnu Island under Article 7(1) of the LOSC

of islands in the immediate vicinity of the Estonian coast in order to draw a straight baseline to and from the islands. Alex Oude Elferink and Erik Franckx have questioned whether Ruhnu Island and its surrounding islets may be regarded as a fringe of islands in the immediate vicinity of the Estonian coast.²²³ In case the islands of Ruhnu do not meet the criteria of Article 7(1) of the LOSC, States could dispute the legality of the Estonian straight baselines in the northern part of the Gulf of Riga.

Lewis Alexander has noted that the LOSC lacks universal criteria for deter-mining whether or not a baseline system follows the general direction of the coast.²²⁴ Likewise, it is also not settled how many islands at minimum may comprise “a fringe of islands”.²²⁵ The islands of Ruhnu include the main island and some smaller islets in its immediate vicinity. They form part of a lengthy chain of islands off Estonia’s western coast. The islands of West Estonian Archipelago are of varying size as they include some of the largest islands in the Baltic Sea (Saaremaa, Hiiumaa, Muhu and Vormsi) as well as over a thou-sand smaller islands and islets.²²⁶

The straight baseline between Ruhnu and Kihnu is approximately 29 miles long and the one between Ruhnu and Allirahu Islets is 24 miles long. According to the explanations of the Estonian foreign minister, the draft Maritime Bounda-ries Act of Estonia was modified prior to its second reading in the Parliament in order to establish straight baselines with Ruhnu Island.²²⁷ He added that “It is a very important modification to the Government’s draft Act and introduced indeed by the defence committee [of the Parliament], but the Government does not oppose it.”²²⁸ Also, during the deliberations on the 1996 Maritime Boundary Treaty in the Estonian Parliament, the foreign minister, referring to the question of Ruhnu Island, explained that “this island may serve as a base-point only if the distance between it and the coast or another island is less than 24 nautical

223 Ibid, pp. 175–176. Franckx 2002, op. cit., pp. 3006–3007.

224 L. M. Alexander. Baseline Delimitations and Maritime Boundaries. – 23 Virginia Journal of International Law 1983(4), p. 515.

225 See e.g. S. Kopela. Dependent Archipelagos in the Law of the Sea. Leiden: Martinus Nijhoff 2013, pp. 60–61, 104.

226 See also L. Velsker. Eesti sai 700 meresaare võrra rikkamaks. ERR Uudised, 25.08.2015.

227 The oral explanations by the Estonian foreign minister in the second reading of the draft Maritime Boundaries Act in the Parliament. Stenographic record of the Parliament, 10.03.1993. Accessible in Estonian at: http://stenogrammid.riigikogu.ee (01.09.2016).

228 Ibid.

miles,” and that “this would be a point on which we would have had a relatively weak position if the question would have been referred to the court.”²²⁹ Yet the views of the Estonian foreign minister do not necessarily correspond to the LOSC or the case law of the ICJ.

The length of straight baselines is explicitly limited only with regard to natu-ral entrances to bays and in connection with archipelagic States (Article 47(2) of the LOSC). Thus, Article 10(5) of the LOSC stipulates that where the dis-tance between the low-water marks of the natural entrance points of a bay exceeds 24 miles, a straight baseline of 24 miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. The straight baselines connecting Ruhnu Island with Alli-rahu and Kihnu islands do not pertain to any natural entrance points of a bay.

During the 1958 Conference on the Law of the Sea, a proposal was made to set the limit of 15 miles for the length of any straight baseline, but it was rejected.²³⁰ By that time, the ICJ had already (in 1951) noted that the attempts to limit the length of a straight baseline drawn at sea, analogously to the ones located in bays so that its length would not exceed twice the width of the territo-rial sea of a coastal State, have been only random proposals and Norway’s 44-miles-long straight baselines are not contrary to international law.²³¹

Thus, Lewis Alexander has observed that

“Neither the 1958 nor the 1982 Conventions suggest a maximum limit, and the only potential yardstick is the 1935 Norwegian delimitation method approved by the ICJ. The longest line utilized by the Norwegians was the 44-mile line across Lopphavet.”²³²

In State practice there are numerous examples of straight baselines exceeding 24 miles in length, including those of European States, e.g. Iceland, Italy, Malta and Norway.²³³ Also, e.g. the straight baselines drawn by Japan in 1977 are in 46 instances longer than 24 miles and in 21 instances longer than 40 miles (maximum length 62 miles), whereas the Chinese straight baselines reach even 70 miles.²³⁴

In spite of the omission of a limit to the length of a straight baseline in the LOSC, States may nevertheless provide for one in their domestic law. Up until the amendment of its Act on the Delimitation of Territorial Waters in 1995, Finland had stipulated that the length of its straight baselines does not exceed

229 Stenographic record of the First Reading of the 1996 Maritime Boundary Treaty in the Estonian Parliament, op. cit.

230 Churchill, Lowe, op. cit., p. 31.

231 Fisheries case 1951, op. cit., pp. 131–132.

232 Alexander 1983, op. cit., p. 518.

233 Churchill, Lowe, op. cit., p. 32.

234 J. M. Van Dyke. Disputes Over Islands and Maritime Boundaries in East Asia. – J. M. Van Dyke (ed). Maritime Boundary Disputes, Settlement Processes, and the Law of the Sea.

Leiden: Martinus Nijhoff 2009, pp. 45, 55.

twice the breadth of its territorial sea, i.e. at the time 8 miles.²³⁵ However, such limitations to the length of straight baselines in the domestic law of a coastal State are rare. Subsequent to the update of the Finnish system of straight base-lines in 1995 (the updates are carried out after every 30 years due to the land uplift²³⁶), the longest Finnish straight baseline exceeds the previous limit of 24 miles and is approximately 27 miles long.²³⁷ Similarly, the longest segment of the Swedish straight baseline is 30 miles,²³⁸ thus also exceeding the Estonian ones connecting Ruhnu Island.

Clearly, the method of straight baselines needs to be applied restrictively and in conformity with the conditions stipulated in Article 7(1) of the LOSC.²³⁹ Yet, since Article 7(1) of the LOSC does not stipulate detailed criteria for assessing the legality of straight baselines,²⁴⁰ the position of other States on the legality of particular straight baselines is decisive in most cases.²⁴¹ In 2016, the Inter-national Law Association’s Committee on Baselines concluded that as much as half of the straight baseline claims of various States have been contested by other States.²⁴² Significantly, no State, prima facie Latvia, has objected to the Estonian straight baselines (incl. in the Gulf of Riga).²⁴³

However, Erik Franckx is of the view that in the 1996 Maritime Boundary Treaty, Estonia and Latvia did not take into account the Estonian straight base-lines that connect Ruhnu Island. Instead, as argued by Erik Franckx, the bound-ary line was predicated not on straight baselines, but on historical circumstances

235 Kleemola-Juntunen, op. cit., p. 62. E. Franckx. Finland and Sweden Complete Their Maritime Boundary in the Baltic Sea. – 27 Ocean Development and International Law 1996, p. 308. The idea of such voluntary self-limitation was also advanced by Abner Uustal in the Soviet Union. See Uustal 1977, op. cit., p. 42.

236 Section 4 of the Laki Suomen aluevesien rajoista annetun lain muuttamisesta (Act Changing the Act on the Delimitation of Territorial Waters of Finland). Adopted 03.03.1995, e.i.f. 30.07.1995. Accessible in Finnish and Swedish at: http://www.finlex.fi/

fi/laki/alkup/1995/19950981 (01.09.2016).

237 E. Franckx. Finland-Sweden (Bogskär Area). Report No. 10-13. – J. I. Charney, L. M.

Alexander (eds). International Maritime Boundaries, vol. 3. Dordrecht, Boston, London:

Martinus Nijhoff 1998, p. 2545.

238 Ibid, p. 2544.

239 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 94, paras 212–215.

240 See also United States Department of State. Developing Standard Guidelines for Evaluating Straight Baselines. – Limits in the Seas, No. 106. Washington D.C: US Department of State 1987, pp. 17–29.

241 See generally Churchill, Lowe, op. cit., p. 47.

242 D. Rothwell (Rapporteur). Baselines under the International Law of the Sea (Draft Report). Johannesburg: International Law Association 2016, p. 17. Accessible: http://

www.ila-hq.org/en/committees/index.cfm/cid/1028 (01.12.2016).

243 For the list of protests made against the straight baseline claims of States, see ibid, pp.

17–21. See also US Navy Judge Advocate General’s Corps. – Estonia. Summary of Claims. April 2014.

in the east of Ruhnu Island²⁴⁴ and on the coordinates of the islands in the section between Ruhnu and Allirahu.²⁴⁵ The 1996 Maritime Boundary Treaty between Estonia and Latvia does not provide any indication in support of this claim. To the opposite, as explained below,²⁴⁶ Latvia tacitly recognised Estonia’s straight baselines in the Gulf of Riga (likewise Estonia recognised Latvia’s straight baselines) by concluding the 1996 Maritime Boundary Treaty. The boundary line, as agreed in the treaty, concords with the Estonian and Latvian straight baselines in the Gulf of Riga.²⁴⁷