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Digest 9

Digest 9

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* 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!”
A.States
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.
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2. UNCLOS (UN Convention on the Law of the Sea)Browlie Chapter IX: Territorial Sea, Contiguous Zones, and Exclusive EconomicZones
 A. Territorial Sea
1.
Introductory 
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)
1
[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
th
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
1
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
st
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
th
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
th
century: [A] the conceptof a hypothetical cannon-shot rule, a
belt 
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
 ANGLO-NORWEGIAN FISHERIES 
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
skjaergaard 
, 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
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of straight baselines following the general direction of the coast had been consistentlyapplied by Norway and had thus encountered no opposition from other states. The UKmade no formal and definite protest until 1933. Clearly the validity of the 1935 decreecould have been upheld on the basis of acquiescence; indeed Judge Hackworth gavethe existence of historic title on the part of Norway to the areas in question as aseparate reason for concurring. However, while it is true that the Court refers to theabsence of protest from other states and also to the consolidation of the method by a“constant and sufficiently long practice,” the Judgment as a whole holds that theNorwegian system of baselines was, as a matter of principle, in accordance withinternational law.UNIQUE TOPOGRAPHY. In the case, the Court describes the topography of themainland coast thus: “... it constantly opens out into indentations often penetrating for great distances inland... The coast of the mainland does not constitute ... a clear dividing line between land and sea. ...what really constitutes the Norwegian coastline isthe outer line of the
skjaergaard 
.” The problem concerns the baseline from which thebreadth of the territorial sea is to be measured; while the parties agree that the criterionis the low-water mark, they differ as to its application. Ultimately it is held that therelevant low-water mark is the outer line of the
skjaergaard 
, such solution being“dictated by geographical realities.”METHOD TO USE. What method, then, to use to draw the baseline?
Tracé parallèle
,i.e. drawing a line that is the exact image of the coastline, assumed by the Court to bethe normal method of applying the low-water mark rule, did not apply to the type of coast in question; in this case, the baseline could only be determined by means of ageometric construction. “The principle that the belt of territorial waters must follow thegeneral direction of the coast makes it possible to fix certain criteria valid for anydelimitation of the territorial sea... [I]n order to apply this principle, several States havedeemed it necessary to follow the straight baselines method... they have notencountered objections of principle by other States. This method consists of selectingappropriate points on the low-water mark and drawing straight lines between them.This has been done not only for well-defined bays, but also in cases of minor curvatures of the coastline where it was solely a question of giving a simpler form tothe belt of territorial waters.” The Court discounts the British contention that straightlines can be drawn only across bays. An argument that, in any case, the length of straight lines must not exceed ten miles was criticized: “[T]he practice of States doesnot justify the formulation of any general rule of law... Furthermore... it may be thatseveral lines can be envisaged. In such cases, the coastal State would seem to be inthe best position to appraise the local conditions dictating the selection. Consequentlythe Court is unable to share the view... that Norway, in the matter of baselines, nowclaims recognition of an exceptional system... [Rather, there is] the application of general international law to a specific case.”CRITERIA FOR VALIDITY OF SUGGESTED DELIM SYSTEMS = certain basicconsiderations as to the nature of the territorial sea. (1) Because of the closedependence of the territorial sea upon the land domain, the drawing of baselines mustnot depart, to any appreciable extent, from the general direction of the coast. (2) Aclose geographical relationship between sea areas and land formation is afundamental consideration in deciding whether certain sea areas lying within thebaselines are sufficiently closely linked to the land domain to be subject to the regimeof internal waters. (3) The other consideration is that of certain economic interestspeculiar to a region, the reality and importance of which are evidenced by long usage.CONCLUSION. The method of straight lines was imposed by the peculiar geographyof the Norwegian coast, and had been consolidated by a constant and sufficiently longpractice.3.
Straight Baselines: Recent DevelopmentsFISHERIES 
CASE AS PRECEDENT. Even if one regards the case as an instance of  judicial legislation, and not an application of pre-existing principles to the special facts,its significance cannot be underestimated. The pronouncements on the straight linesmethod are intended to have general application to coasts of that type.CONVENTION PROVISIONS. Art. 4 par. 4, CTS: Account may be taken of economicinterests in determining individual baselines if the geographical criteria justifyingstraight lines are satisfied. Substantially the provision confirms the place of theprinciples of 
Fisheries
in the law. Many states employ straight baselines which applythe Norwegian system or at least compatible with it, leaving aside certain extensiveclosing lines for bays and lines enclosing archipelagos. Art. 7 CLOS affirms theexisting principles governing straight baselines; par. 2 deals with the problem of deltasand other unstable coastlines.4.
Breadth of Territorial Sea
BORING FACTS. 17
th
century: Several forms of limit are known, e.g. the range of vision on a fair day; the range of cannons on shore. Last quarter of the 18
th
century:Cannon-shot rule obtains in some of Europe, but other claims rest simply on a belt witha stated breadth. 1793: Cannon-shot rule is first given a standard value (1 marineleague, or 3 miles). 1862, probably earlier: Cannon-shot rule and 3-mile limitgenerally regarded as synonymous; original cannon-shot rule has become obsolete.THE THREE-MILE LIMIT. Until the late 1980s [see below], the US and the UKsupported the 3-mile limit and protested claims to a wider territorial sea. Britishadherence to the 3-mile limit was reinforced in the late 19
th
century by theabandonment of a special customs and excise jurisdiction over zones beyond 3 milesand the embodiment of the limit in legislation. The 3-mile limit gained considerablecurrency in the 19
th
century, but the practice was far from uniform. Some states (e.g.France, Belgium) did not differentiate clearly in their practice between territorial seaand jurisdictional zones, claiming zones for particular purposes. Many statessupporting a 3-mile limit claimed contiguous zones extending beyond 3 miles.It was not until 1920 that claims to special jurisdictional zones were generally seen tobe distinct from full claims to territorial sea. Thus the results of the Hague CodificationConference of 1930 evidence the role of the Conference and its preliminaries incrystallizing govt attitudes: Although most states favored a 3-mile limit, some alsoclaimed contiguous zones. Through the course of the proceedings, the secondcommittee said it preferred not to express an opinion on what ought to be regarded asthe existing law; the Int’l Law Commission later indicated that most members did notregard the 3-mile rule as part of positive law.NOW, A TWELVE-MILE RULE. In 1970 the US adopted an Oceans Policy, onecomponent of which was an effort to obtain international agreement on a maximum of 12 miles. Art. 3, CLOS: “Every state has the right to establish the breadth of its
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* bok * cj * tiff * gem * tin * 3
territorial sea up to a limit not exceeding 12 nautical miles.The great preponderanceof states has a 12-mile limit; this has been adopted by legislation in the UK and US in1987 and 1988 respectively. Claims apparently in excess of 12 miles call for carefulassessment; some of these are fishing conservation zones which have been wronglycharacterized.5.
Baselines: Further Problems
BAYS: the closing line which leaves internal waters on its landward side and providesa baseline for delimiting the territorial sea. The drawing of a closing line is possibleonly where the coast of the bay belongs to a single state. To justify assimilation to theland domain there must be a certain degree of penetration. Art. 7 par. 2, CTS of 1958& Art. 10 par. 2 CLOS provide a semicircle, or rigid geometrical, test of suchassimilation.
2
However, many say that this criterion is a necessary, but not sufficient, condition for thelegal existence of a bay. There must be a “well-marked indentation with identifiableheadlands,” but this “geographical test” itself begs the question. Gulfs, fjords, andstraits, or parts thereof, are not excluded from the legal concept of a bay. The straightclosing line applicable to bas is quite distinct from the system of baselines applicable inspecial circumstances. The aforesaid provisions concerning bays are not intended tointroduce the system of straight lines to coasts whose configuration does not justifythis.It was asserted formerly that the closing line was limited to 10 miles, but practice wasfar from uniform.
Fisheries
case: “The 10-mile rule has not acquired the authority of ageneral rule of international law.Art. 7 par. 4 Convention on the Territorial Sea of 1958 & Art. 10 par. 4 CLOS prescribe 24 mile. Coastal states may derive title to baysas a consequence of the system of straight lines approved in
Fisheries
where this isapplicable. A considerable number of large claims related to “bays” are based onhistoric title.BAYS BOUNDED BY THE TERRITORY OF 2+ STATES; and STRAITS. Although theissue has not been uncontroversial, Art. 15 CLOS (see also Art. 12 par. 1 CTS of 1958)probably represents the law as it has been generally understood.
3
OCCASIONAL ISLANDS. A formation, regardless of size or population, is an island if 2conditions are satisfied: (1) The formation is natural, not an artificial installation; and(2) is always above sea level. Formations visible only at low tide (“low-tide elevations”)
2
Art. 10 par. 2, CLOS: “For the purposes of this Convention, a bay is a well-marked indentationwhose penetration is in such proportion to the width of its mouth as to contain land-locked waters andconstitute more than a mere curvature of the coast. An indentation shall not, however, be regarded asa bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a linedrawn across the mouth of that indentation.”
3
 
 Delimitation of the territorial sea between states with opposite or adjacent coasts.
Where the coastsof two States are opposite or adjacent to each other, neither of the two States is entitled, failingagreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of theterritorial seas of each of the two States is measured. The above provision does not apply, however,where it is necessary by reason of historic title or other special circumstances to delimit the territorialseas of the two States in a way which is at variance therewith.
and permanently submerged banks and reefs do not in general produce a territorialsea as islands do. However, Art. 121 par. 3, CLOS
4
 does not represent customary lawand has no retrospective effect.LOW-TIDE ELEVATIONS. In 2 cases these formations are permitted to affect the limitof the territorial sea: (A) Straight baselines shall not be drawn to or from low-tideelevations, unless lighthouses or similar installations which are permanently above sealevel have been built on them.
5
(B) The low-water line on an elevation situated at adistance not exceeding the breadth of the territorial sea from the mainland or an islandmay be used as the baseline. Elevations not within the territorial sea have no territorialsea of their own.NORWEGIAN ISLANDS / ROCK FINGERS may be included in the
Fisheries
systemof straight lines.ISLAND FRINGES TREATED AS NATURAL APPENDAGES OF THE COAST. Apartfrom coasts to which a
system
of straight lines may properly apply, considerable Statepractice supports the principle that, under certain conditions, coastal islands may betreated as part of the mainland. The principle rests on considerations of geographicalassociation and appurtenance, and a few claims are supported by historic title andacquiescence. A baseline—not necessarily a straight line—is drawn in such casesfrom the low-water line on the seaward shore of the island chain. Such an approachcould be justified as an application of the principles in the
Fisheries
judgment (in whichthe Court regarded the outer line of the
skjaegaard 
as constituting a “whole with themainland”).GROUPS OF ISLANDS; ARCHIPELAGOS. Claims to a baseline drawn along theouter fringe of groups of islands in close association with the mainland may be justifiedon grounds considered in the previous paragraph. The ILC thought the straightbaselines system might be applicable, but failed to draft an article on the question.However, neither this system nor what has been said above provides a solution to theproblem of baselines associated with large island systems unconnected with anymainland. Indonesia and the Philippines employ straight baselines to enclose suchislands systems, and it may be that a polygonal system is the only feasible one in suchspecial cases. It is arguable that this is only a further application to special facts of principles of unity and interdependence inherent in the
Fisheries
case; the difficulty isto allow for such special cases without giving a general prescription which, beingunrelated to any clear concept of mainland, will permit of abuse.At the 3
rd
UN Conference on the Law of the Sea, the archipelagic states as a grouphad some success in promoting straight archipelagic baselines; consequently CLOSincludes a set of articles concerning archipelagic states (Arts. 46-54), which aredefined as “a state constituted wholly by one or more archipelagos and may includeother islands.” For no very sound reason this definition excludes states like Canadawhich consist in part of one or more archipelagos. According to the Convention,archipelagic straight baselines may be employed subject to certain conditions, e.g.such baselines “shall not depart to any appreciable extent from the general
4
“Rocks which cannot sustain human habitation or economic life of their own shall have noexclusive economic zone or continental shelf.”
5
Art. 4 par. 3 Territorial Sea Convention; Art. 7 par. 4 CLOS.
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