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Baseline Publicity and Charting Requirements: An Overlooked Issue in the UN Convention on the Law of the Sea

2010; Taylor & Francis; Volume: 41; Issue: 1 Linguagem: Inglês

10.1080/00908320903510068

1521-0642

Clive R. Symmons, Michael W. Reed,

Arctic and Russian Policy Studies

Abstract Article 16 of the Law of the Sea Convention substantially expands preexisting international law requirements for the publication of internal water closing lines (collectively referred to herein as “artificial baselines”). Surprisingly, there seems to be substantial confusion among experts as to what exactly is required. For example, most experts appear to conclude that Article 16 requires that artificial baselines be either charted or described by geographic coordinates. This article reviews the language, history, and purposes of Article 16 and concludes that its requirements are more complicated. It then considers which artificial baselines are included within the requirement and what legal consequences evolve from a coastal State's failure to comply with the publicity obligations. Keywords: Article 16baselineschartsinternal waterspublicity Clive R. Symmons is also an adjunct professor in the Marine Law & Ocean Policy Centre, National University of Ireland, Galway, Ireland. Michael W. Reed is an adjunct professor and former attorney at the U.S. Department of Justice specializing in offshore boundary litigation. He was a member of the Interagency Committee on the Delimitation of the U.S. Baseline from 1970 to 1998. The authors thank Professor Tullio Scovazzi for his comments on a previous draft; and Alex Ivaner (Romanian embassy, Dublin) and Dr. Bogdan Aurescu (secretary of State, Ministry of Foreign Affairs of Romania) for further information on the Romanian-claimed straight baselines as referred to in this article. Notes 1. United Nations Convention on the Law of the Sea, 1833 U.N.T.S. 397.See Sandra H. Shaw and Daniel J. Dzurek, “Charts in the Law of the Sea,” in Rights To Oceanic Resources, ed. D. G. Dalmeyer and L. DeVorsey Jr. (Martinus Nijhoff, 1989), who pointed out, at 15, that the “descriptive function of charts” envisaged by the framers of the LOSC includes “the publicizing of claims and boundaries.” 2. J. R. V. Prescott, “Straight Baselines: Theory and Practice,” in The UN Convention on the Law of the Sea: Impact and Implementation, ed. E. D. Brown and R. R. Churchill (Law of the Sea Institute, 1987), 288, 313. 3. Convention on the Territorial Sea and Contiguous Zone, 516 U.N.T.S. 205. 4. See, for example, the detailed study of T. Scovazzi et al., La Linea di Base del Mare Territorial, First Part (Guiffre Editore, 1986), commenting on Articles 4, 5, 6, and 7 of the LOSC which says simply, at 169, that the cartographic duty imposed under the TSC in Article 4(6) to avoid previous obscurity and uncertainty over the location of straight baseline systems was repeated in similar terms under the LOSC. 5. For the purposes of this article, the term “artificial baselines” will mean any line closing not only waters under Article 7 of the LOSC, where the phrase “straight baselines” is used as a term of art in the title of the article and each of that article's paragraphs, but also such lines drawn across the mouths of rivers and bays, ports, or historic internal waters. Although technically Article 7(4) uses the term “closing line” to describe a line across the mouth of a bay, paragraph (3) thereof refers to “lines” to describe segments of the mouth of a multimouth bay, and paragraph (5) refers to a “straight baseline” as a fall-back in the case of over-large bays. Similarly, Article 13, relating to closing off river mouths, refers to a “straight line.” G. Etzel Pearcy, “Measurement of the U.S. Territorial Sea,” XL Bulletin, Dept. of State, No. 1044, June 29, 1959 (see also 1963 and 1967 eds.), has made the point that, as the term “straight baseline” used to denote a method of drawing a baselines “is the same as that which may be used to denote a closing line across a bay or river mouth,” there “may be room for confusion unless the term is used in context.” By contrast, J. R. V. Prescott, “Straight and Archipelagic Baselines,” in Maritime Boundaries, ed. G. Blake (Routledge, 1994), at 38, 39, saw a “fundamental distinction” between a “closing line” and a “straight” or archipelagic baseline, on the basis that the latter deals with “multiple features and may extend over long distances.” 6. Even the authoritative UN publication, The Law of the Sea: Baselines—An Examination of the Relevant Provisions of the UN Convention on the Law of the Sea (UN Office for Ocean Affairs and Law of the Sea, 1989), is muddled on this issue. The report says, at 26, for example, that the “[c]losing lines for rivers should be either shown on charts or the co-ordinates of the ends of the lines should be listed” by dint of Article 16; and, moreover, at 31, that “Article 16 requires that coastal States give due publicity to the location of closing lines for bays and deposit copies of charts and lists of co-ordinates to the UN Secretary-General.” Later, however, the report seems to backtrack on these forthright views by saying, at 39–40, that coastal States are required by the LOSC “to give due publicity [to the relevant baselines] in one of the specified forms”; and that a “second choice involves showing the outer limits of the territorial seas derived from baselines drawn under articles 7, 9 and 10. …“Confusion seems to continue into the present. The United Nations’ official Web site proclaims, with respect to the “Deposit and Due Publicity” requirement, that “Coastal States, under article 16, paragraph 2 … are required to deposit with the Secretary-General … charts showing straight baselines … as well as the outer limits of the territorial sea …, alternatively, the lists of geographical coordinates … may be substituted. Coastal States are also required to give due publicity to all these charts and lists. …” (emphasis added). Available at www.un.org/Depts/los/doalos_activities/about_doalos.htm, last updates 12 April 2005 (accessed on 9 October 2009). The UN Web site does not appear to recognize Article 16's alternative of publishing the “limits derived” from artificial baselines. 7. “Study on the Future Functions of the Secretary-General,” Doc. A/ CONF.62/L.76, 18 August 1981, UNCLOS III, Official Records, Vol. XV, at 153. 8. T. Scovazzi, “Baselines,” in Max Planck Encyclopedia of Public International Law (Oxford University Press, forthcoming), sec. A(1)(5). It is important to understand that, if there is a difference between the actual low-water line and the charted line, the actual line is the baseline. In fact, some discrepancy is unavoidable as tide lines meander with accretion and erosion and charting agencies are unable to keep up. The history of what is now Article 5 of the LOSC makes clear that any appreciable difference between the actual and charted lines can be challenged. See Michael W. Reed, Shore and Sea Boundaries, Vol. 3 (NOAA Coastal Services Center, 2000), 180, n. 7. The issue has risen occasionally in maritime boundary litigation before the U.S. Supreme Court and charted lines, although presumed to be accurate, have always been subject to correction. Ibid., at 177–185. See also Michael W. Reed, “National and International Jurisdiction and Boundaries,” in Ocean and Coastal Law and Policy, ed. Donald C. Baur et al. (American Bar Association, 2007), 1, 5–7. 9. UN Baselines Study, supra note 6; and the U.N. Handbook on the Delimitation of Maritime Boundaries (Division for Ocean Affairs and the Law of the Sea Office of Legal Affairs, 2000), at 4. Furthermore, Satya N. Nandan and Shabtai Rosenne, ed., United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. 2 (Martinus Nijhoff, 1993), at 148, States emphatically that the “same” publicity requirement “is not applied to ‘normal baselines,’” there being “no requirement that the outer limit of the territorial sea measured from normal baselines be shown on charts.” 10. Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of February 3, 2009, available at the Web site of the International Court of Justice at www.icj-cij.org. 11. Ibid., at para. 124. 12. Ibid., at para. 126. 13. R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed. (Manchester University Press, 1999), 31–32. “For example, the location of an incident at sea within or outside baselines might be important in a determination of legal responsibilities. Thus, in the Sun Vista incident involving civil litigation in the High Court of Singapore (suit No. 76 of 2002; between Image and Sun Cruises Ltd, Sun Vista Ltd and Sembawang Ship Management Pte Ltd) the question arose as to whether an on-board fire and sinking of a vessel occurred in international waters or within Malaysia's legitimate internal waters or territorial sea—a matter critically dependant on the validity of Malaysia's unpublished claim to straight baselines. As one commentator has said, this question “is important because the answer will determine whose law applies and could have affect on the outcome of the case.” This was said to be on the basis that if the incident did not occur in “legitimate Malaysian territorial or internal waters,” the law of the flag State would then apply. See M. Valencia, “Validity of Malaysia's Baselines and Territorial Sea Claim in the Northern Malacca Strait,” Marine Policy 27 (2002): 367. He adds that in the absence of publicised straight baselines “Malaysia's territorial waters appear to extend landward all the way to the coast. There is hence no creation or demarcation of internal waters between the low-water mark and the inferred baseline.” Ibid. at 373. 14. G. Etzel Pearcy “Geographical Aspects of the Law of the Sea,” Annals of the Association of American Geographers 49 (1959): 1, 5–6. 15. See Churchill and Lowe, supra note 13, at 35: “a State has a choice as to whether it uses straight baselines or not.” See also LOSC, Article 7(1) which provides that, in appropriate geographic circumstances, “straight baselines … may be employed. …” (emphasis added). 16. The latter situation arises in the context of the two border bays in Ireland (Loughs Foyle and Carlingford). See Clive R. Symmons, “The Maritime Border Areas of Ireland, North and South: an Assessment of Present Jurisdictional Ambiguities and International Precedents Relating to Delimitation of ‘Border Bays,’” International Journal of Marine and Coastal Law 24 (2009): 457. 17. Including, of course, in appropriate cases, other more extensive maritime limits such as the exclusive economic zone (EEZ) or the outer continental shelf limit. 18. The terminology in the LOSC is inconsistent in this regard. For example, whereas Article 7(1) of the LOSC refers to straight baselines, Article 9, with respect to mouths of rivers, refers simply to “a straight line” across the mouth thereof. Article 10(4) refers to a “closing line” with respect to juridical bays with mouths less than 24 nautical miles wide, but also to a “straight baseline” within a bay (in paragraph 5) where the mouth of a bay exceeds 24 nautical miles. In the case of ports, Article 11 of the LOSC, there is no specific mention of permissibility of using closing lines across their mouths, nor, consequentially, is there a reference to Article 11 in the context of charts and publicity under Article 16. Most commentators, however, assume that there is an implicit right to use such baselines at ports. See infra sec. III.A. If this is the case, there is an implicit publicity duty, as a casus omissus matter, under Article 16 in the case of ports that have enclosed mouths. 19. See the dissenting opinion of Lord McNair in the 1951 Anglo-Norwegian Fisheries Case, where he pointed out that calculation of the extent of territorial waters from land is “the normal and natural thing to do,” whereas “calculation of a line drawn on the water is abnormal,” ignorance of which may cause the “foreign” mariner to not be able to respect such limits. Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. Reports 116, 161 (emphasis added). Prescott, supra note 5, at 38, said that, although in the law of the sea treaties closing lines, straight baselines and archipelagic baselines “were not described as abnormal baselines, there was presumably an expectation in a global sense such straight lines would be exceptional.” 20. The United States is only recently completing an identification of all its internal waters’ closing lines. Previously it had charted only those that affected the outer limit of the territorial sea or with respect to which a domestic law issue had been raised. 21. For example, although the United Kingdom claimed the right by statutory instrument to draw closing lines around its coastal formations according to the bay rules in Article 7 of the TSC, no such lines were specified by statutory instrument anywhere along the British coastlines. When litigation arose over the status of the waters of the Thames Estuary in Post Office v. Estuary Radio, [1967] All E.R. 663, 685, the British courts had to determine, for the first time, whether the estuary was a juridical bay according to the hydrographic semicircle test as laid down in the statutory instrument following the definition of a bay in Article 7 of the TSC. Only after that decision did the closing line across the Thames, and hence its extent of internal waters, become clear.In Ireland, although there is an ostensible provision for the government, by dint of sec. 85(2) of the Sea-Fisheries and Maritime Jurisdiction Act of 2006, to “by order” prescribe straight baselines in relation to any part of the State and the closing line of any bay or mouth of a river, the only artificial baseline system so far specified by statutory instrument (under the Maritime Jurisdiction Act 1959 (Straight Baselines) Order 1959) relates to the southern, western, and northern Irish coasts and not to the eastern coast where at least three major juridical bays lie which consequently have no clear and specified closing lines across their mouths. See Clive R. Symmons, Ireland and the Law of the Sea, 2nd ed. (Round Hall Sweet and Maxwell, 2000), 50. It appears that there is an official Irish view that such bays are enclosed at common law in a self-executing fashion, if only because of the saving clause in the Irish maritime legislation to the effect that nothing in the statute “shall be read to be in derogation of any jurisdiction enjoyed by the State under international law, or to affect or prejudice such jurisdiction or any jurisdiction conferred upon it by any other enactment or now by law existing,” Sea-Fisheries and Maritime Jurisdiction Act of 2006, sec. 91. The problem with this is an intertemporal one arising from the supervening treaty-based duties that a State such as Ireland—as now a party to the LOSC—has assumed with respect to publicizing such claims under Article 16 of the LOSC. Otherwise, it will be unclear just where the closing lines run and the determination of the location of a baseline as in the Estuary Radio Case would not measure up to the charting and publicity requirements of this article. 22. “United States Proposed Amendment,” League of Nations doc C.351(b)M.145(b).1930.V., at 201, reprinted in Digest of International Law, Vol. 4, ed. M. Whitman (U.S. Department of State, 1965), 182–183: “It is recommended that each coastal State indicate, on its published charts which are sufficiently large scale for the purpose, lines representing the seaward limits of its territorial waters and of its interior waters drawn in accordance with the provisions of the preceding articles” (emphasis added). 23. See Whiteman, supra note 22, at 183; and authorities referred to therein. 24. UNCLOS Commentary, supra note 9, at 146, commented that, although this deposit duty was new in the LOSC, “it corresponded to a widely accepted practice of notification [of straight baselines etc.] to the Secretary- General that had developed.” 25. Ibid., at 145. 26. Bernard H. Oxman, “The Third UN Conference on the Law of the Sea: The Ninth Session,” American Journal of International Law 75 (1981): 211, 250 n. 181. 27. Indeed, it was estimated that, by 1989, only five developed States having coastlines legally suitable for straight baselines had not, by then, decreed them. John Briscoe, “The Use of Islands in International Maritime Boundary Delimitation,” in Dallmeyer and DeVorsey Jr., supra note 1, at 126. 28. Prescott, supra note 2, at 289. 29. Gayle S. Westerman, The Juridical Bay (Oxford University Press, 1987), 176, n. 271. 30. Of course, such States are not deprived merely by the passage of time of the option in the post-LOSC period to update the charting method concerning their artificial baselines. 31. Many States may not have complied with such additional duties, particularly the procedural one of depositing the baseline details with the UN Secretary-General. Westerman, supra note 29, at 83 n. 22, commented that “States have not in general complied with this obligation.” 32. The list of items included “limits” and “delimitation,” but did not specifically refer to “charting” or “publicity.” See “Organization of the Second Session of the Conference,” UN Doc.A/CONF.62/29, 2 July 1973, UNCLOS III, Official Records, Vol. III, at 59–60. 33. The term “informal,” when used in the UNCLOS III records, generally means that official records were not kept of the proceedings being described. Although the Second Committee considered a number of documents from participating States, none of these proposals appears to address the problem in hand. The draft on National Maritime Zones submitted by Greece, A/Conf. 62/c.2/L.22, 25 July 1974, ibid., at 200, referred to straight baselines that included bay closing lines and archipelagic baselines, and indicated that a coastal State should clearly indicate such baselines on charts to which “due publicity must be given.” The fact that this latter proposal treated straight and archipelagic baselines together is arguably of importance in interpreting the finalized relevant provisions of the LOSC. 34. “Statement of Activities of the Conference prepared by the Rapporteur-General: Mr. Kenneth O. Rattray,” Doc. A/Conf.62/L8/Rev. 1, 17 October 1974, ibid., at 106. 35. “Working Paper of the Second Committee: Main Trends,” Appendix I to ibid., at 110. 36. UNCLOS Commentary, supra note 9, at 146: “The Main Trends did not include similar provisions concerning the baselines or boundaries associated with bays, roadsteads or the mouths of rivers.” 37. C. 2/ Blue Paper No. 4, A/CONF. 62 / C.2/ WP.1, reprinted in Third United Nations Conference on the Law of the Sea: Documents, Vol. 4, ed. R. Platzoder (Dobbs Ferry, NY: Oceana Publications, 1982), 127. 38. Ibid., Provision 13. 39. UNCLOS Commentary, supra note 9, at 146, comments “[f]or the first time the requirements … included a list of co-ordinates as well as charts.” 40. Informal Single Negotiating Text, A/CONF. 62/ WP8 /Part II, 7 May 1975, UNCLOS III, Official Records, Vol. IV, at 154. Inconsistently, the provision relating to the closing of river mouths merely obliged the coastal State to indicate the baselines on “large scale charts” and made no reference to use of supplementing “geographical coordinates.” In both instances, i.e., straight baselines stricto sensu and river mouths, it may be noted that the proposed duty to publicize in terms of charting such baselines was not on the claimant State, but on the UN Secretary-General—a duty ultimately to be transferred to individual States under Article 16 of the LOSC. See UNCLOS Commentary, supra note 9, at 147. 41. It also included requirements for publicizing the location of roadsteads, following the TSC. UNCLOS Commentary, supra note 9, at 146. 42. Revised Single Negotiating Text, A/CONF.62/ WP.8 / Rev.1, 6 May 1976, UNCLOS III, Official Records, Vol. V, at 151. 43. The chair did, however, note that he had made “such technical and drafting changes as would improve the text.” UNCLOS III, Official Records, Vol. V, at 154. 44. UNCLOS Commentary, supra note 9, at 147. 45. Ibid., at 147, where it was commented “[p]aragraph 1 also introduced the concept of alternative methods for indicating the baselines and other boundaries referred to in the Article.” However, the phrase “alternative methods” here may refer not only to the derived limits option, but also to the use of coordinates of points (instead of charts) in paragraph 1. 46. Ibid. 47. Informal Composite Negotiating Text, A/CONF. 62/WP.10, 15 July 1977, UNCLOS III, Official Records, Vol. VIII, at 7. 48. “Memorandum by the President of the Conference,” A/CONF. 62/WP. 10/Add.1, 22 July 1977, ibid., at 69. The provisions on “straight baselines” were to be included in this process. 49. UNCLOS Commentary, supra note 9, at 147. 50. Except that at the UNCLOS III Ninth Session, in a second revision of the ICNT/Rev.1, the reference to “baseline” in Article 16 was amended back to read “baselines;” and at the tenth session of the Drafting Committee in 1981, the phrase “determining them” (in Article 16(1)) was replaced by “ascertaining their position.” See ibid., at 148. 51. Under Article 4(6) of the TSC, only the extensive system of artificial baselines had any publicity requirement attached to it—“the coastal State must clearly indicate straight baselines on charts, to which due publicity must be given.” 52. But see J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, 2nd ed. (Martinus Nijhoff, 1996), 72–73, who said that “baselines” are to be shown on large-scale charts (or alternatively coordinates supplied) and that the coastal State is “required to give due publicity to such charts or lists of coordinates; and deposit a copy of each such chart or list with the Secretary-General of the UN.” They said the same thing about bay “closing lines” (at 73) citing Article 16. In so doing, they not only made no mention of the supposed alternative duty under Article 16, they also stated with respect to Article 16(2) (at 73, n. 51), that “[t]his rule [as above] applies to both normal and straight baselines.” This is a controversial interpretation of the treaty-based publicity duty because Article 16(2) refers to “such charts or lists” only as mentioned in paragraph 1 (i.e., those concerning artificial baseline situations alone). 53. UNCLOS Commentary, supra note 9, at 149: “article 16 provides that either way of giving the limits is acceptable. …” 54. The opening phrase of Article 16(1)—“baselines for measuring the territorial sea” (emphasis added)—seems only indirectly to affect the issue as to publicity duties regarding the types of artificial baselines mentioned therein (including procedural matters mentioned in paragraph 2). But, it may be used as an interpretative guide to the meaning of “limits” in the alternative charting option in Article 16(1), the phrase being a repeated and standardized reference throughout the LOSC when referring to baselines generally for the purpose of drawing zonal limits therefrom—e.g., the outer contiguous zone limits (Article 33(2)), outer EEZ limits (Article 57) and continental shelf limits (Article 76, paras. 1 and 4). The same, almost shibboleth, phrase is also used, as seen, in defining “internal waters” in the LOSC, Article 8. Thus, the phraseology in all the latter instances is in similar (albeit not identical) terms to that found in Article 16 when referring to “baselines.” It may be noted that, under the LOSC, all the other major claimable maritime zones (apart from the contiguous zone) must have their outer limits shown on charts “of a scale or scales adequate for ascertaining their position” or by means of “lists of co-ordinates of points, specifying the geodetic datum” under Article 75(1) of the LOSC in the case of the EEZ and Article 84 (1) in the case of the continental shelf. See also Article 76(9) on the latter. It is, however, technically incorrect to suggest that the LOSC “explicitly” prescribes charts to depict the “outer limits of the territorial sea.” See Shaw and Dzurek, supra note 1, at 15. Article 16 seems to make this at least a partially optional stipulation where such limits lie off artificial baselines and wholly optional where the normal baseline applies. 55. The wording here, as stated above, seems to complement and implicitly refer back to the preceding phrase accompanying the reference to “baselines;” namely, “baselines for measuring the breadth of territorial sea”(emphasis added). Furthermore, the more extensive offshore zones extending from the same baselines already attract in their own right similar charting and publicity obligations imposed in separate articles of the LOSC. See supra note 51. 56. UNCLOS Commentary, supra note 9, at 145. The same assumption is made in the UN Baselines Study, supra note 6, at 39, which says: “The second [charting] choice [under Article 16(1)] involves showing the outer limits of the territorial seas derived from the baselines drawn under articles 7, 9, and 10. …” (emphasis added). 57. UNCLOS Commentary, supra note 9, at 148. 58. Prescott, supra note 2, at 289. UNCLOS Commentary, supra note 9, at 145, notes that paragraph 2 puts an “additional” duty on a coastal State which “reflects the right of other States to have this information available to them.” 59. Note that the word “shall” is repeated here. This purely procedural obligation to deposit copies of any of the charting/coordinates relating to an artificial baseline system to the UN secretary-general is clear and needs no further comment. 60. UN Baselines Study, supra note 6, Appendix I, at 52. A similar interpretation has been proffered in an ILA (American Branch) LOS Committee study, George K. Walker, “Terms in the 1982 U.N. Convention on the Law of the Sea or in Convention Analysis that the Convention Does Not Define” (2009), at 161, where it is stated that “[a]s used in UNCLOS, ‘due notice,’ ‘appropriate publicity’ and ‘due publicity’ mean ‘communication of a given action for general information through appropriate authorities within a reasonable amount of time in a suitable manner.’” 61. For example, the Soviet Union complained in 1963, 3 years after the imposition of Irish straight baselines in 1960, that it had not been “notified” about these baselines. See Symmons, supra note 16, at 6. Walker, supra note 60, at sec. 54(b), has suggested that “[b]esides communication to concerned States and international organizations as UNCLOS requires through diplomatic or other designated channels, more immediate dissemination to mariners … may be achieved by passing information directly to national hydrographic offices or analogous national government offices for inclusion in governments’ Notices to Mariners (NOTMARS) … as appropriate.” 62. Such publicity must also be given, under LOSC Articles 21(3) and 42(3), to all laws and regulations relating to innocent passage in the territorial sea and transit passage in straits. 63. This duty also arises more generally in the case of matters relating to location of submarine cables in archipelagic waters (Article 52(2)), and conservation and management laws in the EEZ (Article 62(5)). 64. See, e.g., the words “appropriate publicity” in Articles 24(2), 44, and 60(3) and “duly published” in Articles 25(3) and 52(2). UNCLOS Commentary, supra note 9, at 149 n. 9, adds that the UN Secretary-General has commented that such other similar or identical expressions used in the LOSC may, depending on their context, be interpreted to use the United Nations or an organization of the U.N. system “as an appropriate channel for achieving such [publicity] ends.” 65. As already seen, this further duty did not feature in the previous regime in the TSC 1958. 66. Symmons, supra note 16, at 62, with respect to Irish straight baselines and, at 141, concerning outer limits of the Irish 200-nautical-mile exclusive fishery zone (now EEZ). 67. As in the case of the U.S. transposition of the Haitian decree of 1972 establishing its territorial sea (from inner polygonal lines) onto a large-scale chart which revealed, in general terms, the fact that Haiti had not used the low-water line for this purpose as proclaimed in Article 1 of its decree and where Haiti subsequently admitted that it had used straight parallels from the most seaward points of its coast. See Roach and Smith, supra note 52, at 144. Valencia, however, indicates in his discussion of the Malaysian unpublished straight baselines that when Malaysia did ultimately publish a map of its territorial sea limits in the Malacca Strait, then the hidden Malaysian straight baselines and internal waters could be “inferred by drawing a line 12 nm landward from and parallel to the territorial sea limits…,” which would have put the Sun Vista within Malaysia's internal waters. Valencia, supra note 13, at 369. 68. For this reason, the statement of Prescott, supra note 2, at 289, that Article 16 requires States to publicize “all baselines from which the territorial sea is measured” (emphasis added) might be taken to imply that if in fact in any coastal area where artificial baselines are used, but they are not determinative of these outer limits (for whatever geographical reasons), there may be no duty to actually publicize these baselines. However, this seems an unlikely interpretation of his expressed opinion as it stands. Obviously, if a State has specified neither the location of its claimed artificial baselines, nor the precise limits of its territorial sea extending, any such retrospective exercise as indicated in the text will be impossible. In that case the division between that State's internal waters and territorial sea will be as undefined as the external limits of its territorial sea with international waters (the EEZ). In the Malaysian case, the straight baselines implied in a 1969 decree remained unpublished even ten years later when a new map specified only Malaysia's claimed territorial sea limits. Valencia supra note 13, at 369. 69. It seems that the U.S. change of pract