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Digest 9 2

Digest 9 2

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* bok * cj * tiff * gem * tin * public international lawUPLAW 2009 BBakit magandang raket maging ICJ-judge: “Because those countries, they may be poor, but they can pay!”
This digest compilation wouldn’t have been possible without the help of Ben, PJ, Mike,and Marco.
 
b. Territorial SeaUS v. Louisiana (1969)
*the case is a follow-up to the 1960 case wherein the US sued several states andseeking a declaration that it is entitled to exclusive possession of, and full dominionand power over, the lands, minerals and other natural resources underlying the watersof the Gulf of Mexico more than three geographical miles seaward from the coast of each State and extending to the edge of the Continental Shelf. I. The Court in that casereferred to the “Submerged Lands Act” (SLA) stated that the boundary of the state islimited to 3 miles off its Coastline. Anything beyond is under the Federal Government’s jurisdiction.1.
The issue is about the correct definition of “Inland Waters”.
 
U.S. argues thatthe definitions of inland waters contained in the International Convention on theTerritorial Sea (ICTS) should prevail over Louisiana’s contention that it should bethe “Inland Water Line” (IWL) fixed by the Commandant of the Coast Guard in1895.
In United States v. Louisiana, the Court held that by the Submerged Lands Act of 1953 the United States had quit-claimed to Louisiana lands underlying the Gulf of Mexico within three geographical miles of the coastline, the United States beingdeclared entitled to the lands further seaward. The decree and the Act defined "coastline" as "the line of ordinary low water along that portion of the coast which is in directcontact with the open sea and the line marking the seaward limit of inland waters." TheUnited States and Louisiana filed cross-motions for a supplemental decree designatingthe boundary of the lands under the Gulf owned by Louisiana, the parties differingprimarily with respect to that part of the coastline consisting of "the line marking theseaward limit of inland waters." The United States contends that the definitions of "inland waters" contained in the international Convention on the Territorial Sea and theContiguous Zone (ICTS)) should determine the location of that line, while Louisianaurges that the governing boundary is a line it calls the "Inland Water Line" (IWL) whichwas fixed by the Commandant of the Coast Guard pursuant to an 1895 federal statutewhich directed the drawing of "lines dividing the high seas from rivers, harbors, andinland waters." Louisiana urges, alternatively, that the decree proposed by the UnitedStates the decree proposed by the United States reflects too restrictive a constructionof the Convention's provisions in derogation of relevant principles of international law.2.
Submerged Lands Act Definition of Coastline:
"the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the linemarking the seaward limit of inland waters."* the problem with this definition is that Congress did not define what “inland waters”was. The determination of this will necessarily affect the area3.
The 1965 California case wherein the Court adopted the
 
“InternationalConvention on the Territorial Sea and the Contiguous Zone”
 In United States v. California we held that Congress had left to the Court the task of defining "inland waters," and adopted for purposes of the Submerged Lands Act thedefinitions contained in the ICTS, ratified by the United States in 1961. The UnitedStates asserts that the same definitions should determine the location of the "linemarking the seaward limit of inland waters" of Louisiana. Louisiana, on the other hand,contends that this line has already been determined pursuant to an 1895 Act of Congress which directed the drawing of "lines dividing the high seas from rivers,harbors and inland waters," and has proposed a decree based upon this contention.3-A.
What is the ICTS definition of “inland waters”? Here are the relevantprovisions of the Convention (Art. 7 & 4)Article 7
(semi circle Test):"1. This article relates only to bays the coasts of which belong to a single State."2. For the purposes of these articles, a bay is a well-marked indentation whosepenetration is in such proportion to the width of its mouth as to contain landlockedwaters and constitute more than a mere curvature of the coast. An indentation shallnot, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation."3. For the purpose of measurement, the area of an indentation is that lying betweenthe low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, anindentation has more than one mouth, the semi-circle shall be drawn on a line as longas the sum total of the lengths of the lines across the different mouths. Islands withinan indentation shall be included as if they were part of the water areas of theindentation."4. If the distance between the low-water marks of the natural entrance points of a baydoes not exceed twenty-four miles, a closing line may be drawn between these twolow-water marks, and the waters enclosed thereby shall be considered as internalwaters."5. Where the distance between the low-water marks of the natural entrance points of abay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawnwithin the bay in such a manner as to enclose the maximum area of water that ispossible with a line of that length."6. The foregoing provisions shall not apply to so-called `historic' bays, or in any casewhere the straight baseline system provided for in article 4 is applied."
Article 4
"1. In localities where the coast line is deeply indented and cut into, or if there is afringe of islands along the coast in its immediate vicinity, the method of straightbaselines joining appropriate points may be employed in drawing the baseline fromwhich the breadth of the territorial sea is measured."2. The drawing of such baselines must not depart to any appreciable extent from thegeneral direction of the coast, and the sea areas lying within the lines must besufficiently closely linked to the land domain to be subject to the regime of internalwaters."3. Baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them."4. Where the method of straight baselines is applicable under the provisions of paragraph 1, account may be taken, in determining particular baselines, of economicinterests peculiar to the region concerned, the reality and the importance of which areclearly evidenced by a long usage."5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State.
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"6. The coastal State must clearly indicate straight baselines on charts, to which duepublicity must be given."
I.
 
“The Inland Water Line” Resolution
4.
Congress Regulations on Maritime navigation 
It started with the Act of April 29, 1864, which promulgated rules applicable to allvessels of domestic registry on any waters. These rules were patterned on emerginginternational standards, and when most other maritime nations subsequently changedtheir rules, the United States Congress in 1885 enacted conforming "RevisedInternational Rules and Regulations" to govern American ships "upon the high seasand in all coast waters of the United States, except such as are otherwise providedfor." The 1864 Act was therefore repealed except as to navigation "within the harbors,lakes, and inland waters of the United States." In 1889 the International MaritimeConference drafted new International Rules, which were promptly adopted byCongress. Article 30 of those rules provided that "nothing in these rules shall interferewith the operation of a special rule, duly made by local authority, relative to thenavigation of any harbor, river, or inland waters." The 1969 Act which vested authorityto determine dividing lines for inland waters to the Secretary of the Treasury has sincebeen transferred several times to various federal officials and now resides with theCommandant of the Coast Guard. When the Submerged Lands Act was passed in1953, such lines had been drawn in the Gulf only along some segments of theLouisiana shore, but in that year the Commandant of the Coast Guard drew new linesapplicable to all the waters off the Louisiana coast. In 1954 the Louisiana Legislaturedeclared that it "accepted and approved" this demarcation, which it now calls the"Inland Water Line," as its boundary. Louisiana now argues that this line enclosesinland waters and is therefore "the line marking the seaward limit of inland waters," andthus its "coastline" within the meaning of the Submerged Lands Act.5.
Louisiana’s 1st Argument: The definition of Inland Waters must be consistentacross all Statutes, from the 1864 Act to the Submerged Lands Act – Court saidLouisiana was wrong since Congress in the 1953 Act had no intention to tie it tothe 1864 definition.
While the Submerged Lands Act established boundaries between the lands of theStates and the Nation, Congress' only concern in the 1895 Act was with the problem of navigation in waters close to this Nation's shores. There is no evidence in thelegislative history that it was the purpose of Congress in 1953 to tie the meaning of thephrase "inland waters" to the 1895 statute. Court looked into an exchange on theInland Water Line which took place between Senator Anderson and the AssistantAttorney General of Louisiana wherein the Senator said “We went through all that inthe hearing a couple of years ago, and found that was of no value to us whatsoever”.Court concluded, as it did in the California case, that Congress deliberately "chose toleave the definition of inland waters where it found it - in the Court's hands”6.
Louisiana’s 2
nd
Argument: the ICTS was not intended either to be the exclusivedeterminant of inland or territorial waters or to divest a nation of waters which ithad long considered subject to its sole jurisdiction. By the long-standing,continuous, and unopposed exercise of jurisdiction to regulate navigation onwaters within the "Inland Water Line," the United States is said to haveestablished them as its inland waters under traditional principles of internationallaw. In the alternative, Louisiana ran the “Historic Bays” argument – Court saidLouisiana was wrong again since the State never treated the IWL as a territorialboundary 
Nothing in either the enactment of the 1895 Act or its administration indicates that theUnited States has ever treated the IWL as a territorial boundary. ,For at least the last25 years, during which time Congress has twice re-enacted both the International andInland Rules, the responsible officials have consistently disclaimed any butnavigational significance to the "Inland Water Line." When the line was for the first timecompleted off the entire Louisiana shore, the Commandant of the Coast Guarddeclared:"The establishment of descriptive lines of demarcation is solely for purposes connectedwith navigation and shipping. These lines are not for the purpose of defining Federal or State boundaries, nor do they define or describe Federal or State jurisdiction over navigable waters." As early as 1943 the Coast Guard had differentiated the "InlandWater Line" from other boundaries with territorial significance. Quite obviously, thisartificial line does not truly separate the high seas from the inland waters of the UnitedStates. It simply marks the area within which the Inland Rules apply, and outside of which the International Rules control. There is no indication that in enacting thenavigation rules and authorizing the designation of an "Inland Water Line" Congressbelieved it was also determining the Nation's territorial boundaries. Indeed, it seemsunlikely that Congress, if it had intended that result, would have delegated suchauthority to the Secretary of the Treasury, to be exercised in his discretion "from time totime" and by reference to navigational aids rather than in accordance with prevailingprinciples of international law7.
3 Zones of Navigable Seas under General Principles of IL*
distinguished by the nature of the control which the contiguous nation can exerciseover themNearest to the nation's shores are its
inland, or internal waters.
These are subject tothe complete sovereignty of the nation, as much as if they were a part of its landterritory, and the coastal nation has the privilege even to exclude foreign vesselsaltogether. Beyond the inland waters, and measured from their seaward edge, is a beltknown as the
marginal, or territorial, sea
. Within it the coastal nation may exerciseextensive control but cannot deny the right of innocent passage to foreign nations.Outside the territorial sea are the
high seas
, which are international waters not subjectto the dominion of any single nation.8.
Historical Title – mere reasonable regulation insufficient, a coastal nationsmust exercise dominion with the acquiescence of other nations. 
Rule: Whether particular waters are inland has depended on historical as well asgeographical factors but as we said in United States v. California, it is generally agreedthat historic title can be claimed only when the "coastal nation has traditionally assertedand maintained dominion with the acquiescence of foreign nations." It is universallyagreed that the reasonable regulation of navigation is not alone a sufficient exercise of dominion to constitute a claim to historic inland waters. On the contrary, control of navigation has long been recognized as an incident of the coastal nation's jurisdictionover the territorial sea. Article 17 of the Convention on the Territorial Sea and theContiguous Zone embodies this principle in its declaration that "[foreign shipsexercising the right of innocent passage [in the territorial sea] shall comply with thelaws and regulations enacted by the coastal State . . . and, in particular, with such lawsand regulations relating to transport and navigation." Because it is an acceptedregulation of the territorial sea itself, enforcement of navigation rules by the coastalnation could not constitute a claim to inland waters from whose seaward border the
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* bok * cj * tiff * gem * tin * 3
territorial sea is measured. It is clear that no historic title can accrue when the coastalnation disclaims any territorial reach by such an exercise of jurisdiction.9.
Louisiana’s 3
rd
Argument: , Louisiana argues that only adoption of the current"Inland Water Line" will fulfill the "requirements of definiteness and stabilitywhich should attend any congressional grant of property rights belonging to theUnited States." Any line drawn by application of the rules of the Convention onthe Territorial Sea and the Contiguous Zone would be ambulatory and wouldvary with the frequent changes in the shoreline. – Court said no merit on 2grounds: Congress gave the Court the task of determining a term used in the Act(and not to determine boundary lines) and how stability must yield to thecountervailing principle of administering future international relations 
Louisiana argues that its shore-line is constantly shifting as the Mississippi River andviolent Gulf storms remold the soft, silt-like delta soil. This problem was notencountered on the rock-hard, comparatively straight California coast, and Louisianacontends that there is nothing in the Submerged Lands Act which requires that inlandwaters be given the same definition for every part of the United States coast. TheCourt held that Congress left to the Court the task of defining a term used in the Act,not of drawing state boundaries by whatever method might seem appropriate in aparticular case. It would be an extraordinary principle of construction that wouldauthorize or permit a court to give the same statute wholly different meanings indifferent cases, and it would require a stronger showing of congressional intent thanhas been made in this case to justify the assumption of such unconfined power. Finally,we note that if the inconvenience of an ambulatory coastline proves to be substantial,there is nothing in this decision which would obstruct resolution of the problemsthrough appropriate legislation or agreement between the parties. Such legislation or agreement might, for example, freeze the coastline as of an agreed-upon date. we arenot convinced that the policy in favor of a certain and stable coastline, strong as it is,would necessarily outweigh countervailing policy considerations under the SubmergedLands Act. We recognized in California the desirability of "a single coastline for boththe administration of the Submerged Lands Act and the conduct of our futureinternational relations." The adoption of the "Inland Water Line" for Louisiana would becompletely at odds with this desideratum.Court holds The line marking the seaward limit of inland waters," is to be drawn inaccordance with the definitions of the Convention on the Territorial Sea and theContiguous Zone.”II.
APPLICATION OF THE CONVENTION ON THE TERRITORIAL SEA AND THECONTIGUOUS ZONE.
 - side issues which concern the interpretation of the ICTS. Very technical stuff but as arule of thumb, Louisiana adopts a position contrary to the ICTS in these sub-issueswhile the U.S. is pro ICTS.10.
WON dredged channels in the gulf leading to inland harbors comprise inlandwaters? SC says NO. US is correct in saying it only contemplates raisedstructures. 
Art. 8 of ICTS"For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as formingpart of the coast."The discussions of the Article by the 1958 Geneva Conference and the InternationalLaw Commission reveal that the term "harbour works" connoted "structures" and"installations" which were "part of the land" and which in some sense enclosed andsheltered the waters within. It is not enough that the dredged channels may be an"integral part of the harbour system"; even raised structures which fit that description,such as lighthouses, are not considered "harbour works" unless they are "connectedwith the coast." Thus, Article 8 provides that "harbour works . . . shall be regarded asforming part of the coast" a description which hardly fits underwater channels. As partof the "coast," the breadth of the territorial sea is measured from the harbor works' low-water lines, attributes not possessed by dredged channels. We must thereforeconclude that Article 8 does not establish dredged channels as inland waters.Congress also deleted “channels” from the SLA which further weakens Louisiana’sstand.11.
WON the 3 mile land grant is to be measured from low-tide elevations whichlie within three miles of the baseline across the mouth of a bay but more thanthree miles from any point on the mainland or an island?- SC concludes that low-tide elevations situated in the territorial sea asmeasured from bay-closing lines are part of the coastline from which the three-mile grant of the Submerged Lands Act extends
Art. 11"1. A low-tide elevation is a naturally-formed area of land which issurrounded by and above water at low-tide but submerged at high tide.Where a low-tide elevation is situated wholly or partly at a distance notexceeding the breadth of the territorial sea from the mainland or an island,the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea."2. Where a low-tide elevation is wholly situated at a distance exceeding thebreadth of the territorial sea from the mainland or an island, it has noterritorial sea of its own."Article 11 on its face is not wholly dispositive of the issue, and its language does notpreclude either construction. Both parties looked into the drafting history which led tothis final draft: ““Drying rock and drying shoals which are wholly or partly within the territorial sea, asmeasured from the mainland or an island, may be taken as points of departure for measuring the extension of the territorial sea."It is clear that under the International Law Commission version of Article 11, the"territorial sea, as measured from the mainland" included those portions whichextended from baselines enclosing bays. The sole purpose of the amendment to theinitial proposals was to indicate that "drying rocks and drying shoals could only be usedonce as points of departure for extending the territorial sea and that the process couldnot be repeated by leapfrogging, as it were, from one rock or shoal to another." Thisleapfrogging is illustrated by the concern that:“If every low-tide elevation "within the territorial sea" was to have a territorial sea of itsown, then a country like Holland might extend its territorial sea very considerably byadvancing from one shoal to another, claiming that a shoal situated within the territorialsea of another shoal had itself a territorial sea."12.
Whether and to what extent indentations within or tributary to another indentation can be included in the area of the latter for purposes of thesemicircle test [Art. 7(2)]?
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