* bok * cj * tiff * gem * tin * public international lawUPLAW 2009 BOn Zubiri: “We all know why we ran for Senate… so he can have a fling with Trillanes!”
Note: regarding previous cases (i.e. Nicaragua, Anglo-Norwegian Fisheries, El Salvador v. Honduras, etc) which weren’t included here, if you want to get a copy of the digest, please tell Gem.This digest compilation wouldn’t have been possible without the help of Andi, Steveand Marco.
2. UNCLOS (UN Convention on the Law of the Sea)Browlie Chapter IX: Territorial Sea, Contiguous Zones, and Exclusive EconomicZones
A. Territorial Sea
WHAT A TERRITORIAL SEA IS. At the present time, all states claim to exercisesovereignty, subject to treaty obligations and rules on general international law, over abelt of sea adjacent to their coastlines. On its outer edge this belt is bounded by thehigh seas, and it is founded on a baseline, related to the low-water mark and, in certainconditions, to other phenomena, which serves to divide the territorial sea from theinterior or natural waters comprised in rivers, bays, gulfs, harbors, and other water lying on the landward side of the baseline. The generally accepted term, employed inthe most recent Conventions, is “territorial sea”; other terms include the “maritime belt,”“marginal sea,” and “territorial waters.” The language of the Convention on theTerritorial Sea and the Contiguous Zone (entered into force 10 Sept 1964)
[CTS]seems to assume that every state necessarily has a territorial sea; some jurists asserta doctrine of inseparable and natural appurtenance.SOVEREIGNTY. Art. I of the Conv. on the Territorial Sea of 1958 expresses thegenerally accepted view, which is that states have rights amounting to sovereignty over the territorial sea. Art. 2 states that the sovereignty is exercised “subject to theprovisions of these articles and to other rules of international law.” Thus it is clear thatthe limitations set out in the Conv. are not exhaustive. The sovereignty of the coastalstate extends also to the seabed and subsoil of the territorial sea and the airspace over it. The Law of the Sea Convention of 1982 [CLOS] contains essentially similar provisions (Art. 2).A HISTORICAL PERSPECTIVE: HOW TO MEASURE. In the 18
century, extravagantclaims to sovereignty over the seas were generally obsolete, or nearly so. Before theabandonment of such claims, and in some cases as a consequence of suchabandonment, a test of appurtenance had to be sought. The Dutch jurist Bynkershoek(1702) propounded the doctrine that the power of the territorial sovereign extended tovessels within the range of cannon mounted on the shore. Originally, this doctrine
This was adopted, along with three other Conventions—on the High Seas, on Fishing andConservation of the Living Resources of the High Seas, and o the Continental Shelf—at the 1
UNConference on the Law of the Sea in 1958. Only the Convention on the High Seas is “generallydeclarative of established principles of international law” but the Territorial Sea and Continental Shelf Conventions provide evidence of the generally accepted rules bearing on their subject matter.
seems to have rested on the control of the actual guns of ports and fortresses over adjacent waters; it was not at first a concept of a maritime belt of uniform breadth.However, in the latter half of the 18
century, several states laid down limits for belts for purposes of customs or fishery control, in legislation and treaties. Danish practice—which after 1745 was based on a 4-mile belt as the extent of sovereignty—had someimpact on European thinking here.2 DECISIVE DEVELOPMENTS in the last quarter of the 18
century: [A] the conceptof a hypothetical cannon-shot rule, a
over which cannon could range if they wereplaced along the whole seaboard. [B] As “cannon shot” was by no means a definitecriterion, there were suggestions for setting up a convenient standard equivalent or substitute. 1782: Italian writer Galiani proposed 3 miles, or 1 marine league, and thediplomatic birth of the 3-mile limit appears to be the US Note to Britain and France of 8Nov 1793, in which the limit was employed for purposes of neutrality. During and after the Napoleonic wars [ca. 1800-1815], British and American prize courts translated thecannon-shot rule into the 3-mile rule.JURISDICTION TIES INTO SOVEREIGNTY. A significant aspect of the developmentof the law is the intimate relation between claims to jurisdiction for particular purposesover the high seas, and extension of sovereignty to a maritime belt. Some claims, e.g.those of Denmark and Sweden, though commencing as pronouncements for neutralitypurposes, fairly soon developed into assertions of sovereignty, esp. when associatedwith exclusive fishery limits. In other cases, it remained uncertain whether a claim wasonly to certain types of jurisdiction, or was a general limit of sovereignty. What iscertain is that claims to jurisdiction have always tended to harden into claims tosovereignty. This process was, however, arrested to some extent by generalrecognition of the basic legal distinction between territorial sea as an extension of sovereignty and special jurisdictional zones (later called “contiguous zones”) over thehigh seas.2.
Baseline for Measurement of the Territorial Sea
The normal baseline from which the breadth of the territorial sea is measured is thelow-water line along the coast. This follows from the concepts of maritime belt andappurtenance, and corresponds with state practice. There is no uniform standard bywhich states in practice determine this line; Art. 5 CLOS defines the line “as marked onlarge-scale charts officially recognized by coastal states.” In the case of tideless seas,the baseline may be placed at the average waterline on the coast.SPECIAL FOCUS: THE
CASE. British fishermenhave fished off the Norwegian coast since about 1906, and at various times, incidentsled to diplomatic correspondence about Norway’s fishery limits. The Norwegian limit of 4 miles had been established by royal decree in 1812 and was not disputed in thecase. However, later decrees (1869, 1881, 1889) and official explanations thereof continued the measure of 1812 in terms of a system of straight lines drawn fromcertain outermost points of the
, or rampart of rocks and islands whichfringes much of the Norwegian coast. By a decree of 12 Jul 1935, Norway applied thesystem in a more detailed way than before; the validity of the new limits waschallenged by the UK. The UK took the case before the International Court, asking for damages for interferences with British fishing vessels. The Court held that the system
Always will B