International law, Sixth edition
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International Law MALCOLM N. SHAW
Ibid. The Court rejected Bahrain’s claim that certain maritime features east of its main
islands constituted a fringe of islands: ibid. 40 See also article 8(2) of the 1982 Convention. 41 See e.g. Brown, International Law of the Sea, vol. I, p. 28; Churchill and Lowe, Law of the Sea, pp. 41 ff., and O’Connell, International Law of the Sea, vol. I, p. 209. See also G. Westerman, The Juridical Bay, Oxford, 1987. 42 See e.g. the North Atlantic Coast Fisheries case, 11 RIAA, p. 167 (1910) and the Anglo- Norwegian Fisheries case, ICJ Reports, 1951, p. 116; 18 ILR, p. 86, to the effect that no general rules of international law had been uniformly accepted. 43 See also article 10 of the 1982 Convention. t h e l aw o f t h e s e a 563 principle of international law. 44 A number of states have claimed historic bays: for example, Canada with respect to Hudson Bay (although the US has opposed this) 45 and certain American states as regards the Gulf of Fonseca. 46 The question of this Gulf came before the International Court in the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua intervening). 47 The Court noted that the states concerned and commentators were agreed that the Gulf was a historic bay, but this was defined in terms of the particular historical situation of that Gulf, espe- cially as it constituted a pluri-state bay, for which there were no agreed and codified general rules of the kind well established for single-state bays. 48 In the light of the particular historical circumstances and taking particular note of the 1917 decision, the Court found that the Gulf, beyond a long- accepted 3-mile maritime belt for the coastal states, constituted historic waters subject to the co-ownership or a condominium of the three coastal states. 49 The Court continued by noting that the vessels of other states would enjoy a right of innocent passage in the waters beyond the coastal belt in order to ensure access to any one of the three coastal states. 50 Hav- ing decided that the three states enjoyed a condominium within the Gulf, the Court concluded that there was a tripartite presence at the closing line of the Gulf. 51 The United States Supreme Court has taken the view that where wa- ters are outside the statutory limits for inland waters, the exercise of sovereignty required to establish title to a historic bay amounted to the exclusion of all foreign vessels and navigation from the area claimed. The continuous authority exercised in this fashion had to be coupled with the acquiescence of states. This was the approach in the US v. State 44 See the Tunisia/Libya Continental Shelf case, ICJ Reports, 1982, pp. 18, 74; 67 ILR, pp. 4, 67. 45 See Whiteman, Digest, vol. IV, pp. 250–7. 46 See El Salvador v. Nicaragua 11 AJIL, 1917, p. 674. 47 ICJ Reports, 1992, p. 351; 97 ILR, p. 266. 48 ICJ Reports, 1992, p. 589; 97 ILR, p. 505. But cf. the Dissenting Opinion of Judge Oda, ICJ Reports, 1992, p. 745; 97 ILR, p. 661. 49 ICJ Reports, 1992, p. 601; 97 ILR, p. 517. See also generally C. Symmons, Historic Waters in the Law of the Sea: A Modern Re-appraisal, The Hague, 2007. 50 ICJ Reports, 1992, p. 605; 97 ILR, p. 521. 51 ICJ Reports, 1992, pp. 608–9; 97 ILR, pp. 524–5. See also M. N. Shaw, ‘Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Inter- vening), Judgment of 11 September 1992’, 42 ICLQ, 1993, p. 929, and A. Gioia, ‘The Law of Multinational Bays and the Case of the Gulf of Fonseca’, Netherlands YIL, 1993, p. 81. |
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