International law, Sixth edition
particularly where foreign vessels regularly fish close to the limits of the
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International Law MALCOLM N. SHAW
particularly where foreign vessels regularly fish close to the limits of the territorial sea. A more rational method of drawing baselines might have the effect of enclosing larger areas of the sea within the state’s internal waters, and thus extend the boundaries of the territorial sea further than the traditional method might envisage. This point was raised in the Anglo-Norwegian Fisheries case, 29 before the International Court of Justice. The case concerned a Norwegian decree delimiting its territorial sea along some 1,000 miles of its coastline. How- ever, instead of measuring the territorial sea from the low-water line, the Norwegians constructed a series of straight baselines linking the outer- most parts of the land running along the skjaergaard (or fringe of islands and rocks) which parallels the Norwegian coastline. This had the effect of enclosing within its territorial limits parts of what would normally have been the high seas if the traditional method had been utilised. As a re- sult, certain disputes involving British fishing boats arose, and the United 25 Article 13(2) of the Law of the Sea Convention, 1982. Further, low-tide elevations situated within 12 miles of another such elevation but beyond the territorial sea of the state may not themselves be used for the determination of the breadth of the territorial sea, the so-called ‘leap-frogging method’, Qatar v. Bahrain, ICJ Reports, 2001, pp. 40, 102. See also Nicaragua v. Honduras, ICJ Reports, 2007, para. 141, but see Eritrea/Yemen, 114 ILR, pp. 1, 138. 26 Qatar v. Bahrain, ICJ Reports, 2001, pp. 40, 101. 27 Ibid., pp. 40, 102 and Nicaragua v. Honduras, ICJ Reports, 2007, para. 141. 28 See article 7(4) of the Law of the Sea Convention, 1982. See also article 47(4) with regard to archipelagic baselines. 29 ICJ Reports, 1951, p. 116; 18 ILR, p. 86. 560 i n t e r nat i o na l l aw Kingdom challenged the legality of the Norwegian method of baselines under international law. The Court held that it was the outer line of the skjaergaard that was relevant in establishing the baselines, and not the low-water line of the mainland. This was dictated by geographic realities. The Court noted that the normal method of drawing baselines that are parallel to the coast (the trac´e parall`ele) was not applicable in this case because it would necessitate complex geometrical constructions in view of the extreme indentations of the coastline and the existence of the series of islands fringing the coasts. 30 Since the usual methods did not apply, and taking into account the principle that the territorial sea must follow the general direction of the coasts, the concept of straight baselines drawn from the outer rocks could be considered. 31 The Court also made the point that the Norwegian system had been applied consistently over many years and had met no objections from other states, and that the UK had not protested until many years after it had first been introduced. 32 In other words, the method of straight baselines operated by Norway: had been consolidated by a constant and sufficiently long practice, in the face of which the attitude of governments bears witness to the fact that they did not consider it to be contrary to international law. 33 Thus, although noting that Norwegian rights had been established through actual practice coupled with acquiescence, the Court regarded the straight baseline system itself as a valid principle of international law in view of the special geographic conditions of the area. The Court provided criteria for determining the acceptability of any such delimitations. The drawing of the baselines had not to depart from the general direction of the coast, in view of the close dependence of the territorial sea upon the land domain; the baselines had to be drawn so that the sea area lying within them had to be sufficiently closely linked to the land domain to be subject to the regime of internal waters, and it was permissible to consider 30 ICJ Reports, 1951, p. 128; 18 ILR, p. 91. Note also the Court’s mention of the courbe Download 7.77 Mb. Do'stlaringiz bilan baham: |
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