International law, Sixth edition
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International Law MALCOLM N. SHAW
Qatar v. Bahrain that it constituted a ‘de facto archipelago or multiple
island state’ and that it could declare itself an archipelagic state under the Law of the Sea Convention, 1982, enabling it to take advantage of the straight baselines rule contained in article 47. The Court, however, noted that such a claim did not fall within Bahrain’s formal submissions and thus it did not need to take a position on the issue. 68 Article 47 pro- vides that an archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago, which would then serve as the relevant baselines for other purposes. There are a number of conditions before this may be done, however, and article 47 provides as follows: 65 O’Connell, ‘Mid-Ocean Archipelagos’, pp. 23–4, 45–7 and 51, and Whiteman, Digest, vol. IV, p. 284. See also the Indonesian Act No. 4 of 18 February 1960 Concerning Indonesian Waters, extracted in Brown, International Law of the Sea, vol. II, p. 98; the Philippines Act to Define the Baselines of the Territorial Sea of the Philippines, Act No. 3046 of 17 June 1961, and the Philippines Declaration with respect to the 1982 Convention, ibid., pp. 100–1 (with objections from the USSR and Australia, ibid., pp. 101–2). See, as to the US objection to the Philippines Declaration, Cumulative DUSPIL 1981–8, vol. II, p. 1066, and to claims relating to the Faroes, Galapagos, Portugal and Sudan, Roach and Smith, United States Responses, pp. 112 ff. 66 But see, as regards ‘coastal archipelagos’, article 4 of the 1958 Convention on the Territorial Sea. 67 See e.g. Churchill and Lowe, Law of the Sea, p. 121. 68 ICJ Reports, 2001, paras. 181–3. t h e l aw o f t h e s e a 567 1. An archipelagic state may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and in areas in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. 2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. 3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. 4. Such baselines shall not be drawn from low-tide elevations, unless light- houses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. 5. The system of such baselines shall not be applied by an archipelagic state in such a manner as to cut off from the high seas or the exclusive economic zone the territorial sea of another state. 6. If a part of the archipelagic waters of an archipelagic state lies between two parts of an immediately adjacent neighbouring state, existing rights and all other legitimate interests which the latter state has traditionally exercised in such waters and all rights stipulated by agreement between those states shall continue and be respected. 7. For the purpose of computing the ratio of water to land under paragraph 1, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau. 8. The baselines drawn in accordance with this article shall be shown on charts of a scale or scales adequate for ascertaining their position. Alter- natively, lists of geographic co-ordinates of points, specifying the geode- tic datum, may be substituted. 9. The archipelagic states shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations. All the waters within such baselines are archipelagic waters 69 over which the state has sovereignty, 70 but existing agreements, traditional fishing 69 Article 50 provides that within its archipelagic waters, the archipelagic state may draw closing lines for the delimitation of internal waters. 70 Article 49. 568 i n t e r nat i o na l l aw rights and existing submarine cables must be respected. 71 In addition, ships of all states shall enjoy the rights of innocent passage through archipelagic waters 72 and all the ships and aircraft are to enjoy a right of archipelagic sea lanes passage through such lanes and air routes desig- nated by the archipelagic state for ‘continuous and expeditious passage’. 73 In response to a reported closure in 1988 of the Straits of Sunda and Lombok by Indonesia, the US stressed that the archipelagic provisions of the 1982 Convention reflected customary international law and that those straits were subject to the regime of archipelagic sea lanes passage. Accordingly, it was pointed out that any interference with such passage would violate international law. 74 The width of the territorial sea 75 There has historically been considerable disagreement as to how far the territorial sea may extend from the baselines. Originally, the ‘cannon- shot’ rule defined the width required in terms of the range of shore-based artillery, but at the turn of the nineteenth century, this was transmuted into the 3-mile rule. This was especially supported by the United States and the United Kingdom, and any detraction had to be justified by virtue of historic rights and general acquiescence as, for example, the Scandinavian claim to 4 miles. 76 However, the issue was much confused by the claims of many coastal states to exercise certain jurisdictional rights for particular purposes: for example, fisheries, customs and immigration controls. It was not until after the First World War that a clear distinction was made between claims to enlarge the width of the territorial sea and claims over particular zones. Recently the 3-mile rule has been discarded as a rule of general ap- plication to be superseded by contending assertions. The 1958 Geneva Convention on the Territorial Sea did not include an article on the sub- ject because of disagreements among the states, while the 1960 Geneva Conference failed to accept a United States–Canadian proposal for a 71 Article 51. 72 Article 52. 73 Article 53. For recent state practice, see Churchill and Lowe, Law of the Sea, pp. 125 ff. 74 83 AJIL, 1989, pp. 559–61. See also Cumulative DUSPIL 1981–8, vol. II, p. 2060. 75 See e.g. Brown, International Law of the Sea, vol. I, p. 43; Churchill and Lowe, Law of the Sea, pp. 71 ff., and O’Connell, International Law of the Sea, vol. I, chapter 4. See also Oppenheim’s International Law, p. 611. 76 See e.g. H. S. K. Kent, ‘Historical Origins of the Three-mile Limit’, 48 AJIL, 1954, p. 537, and The Anna (1805) 165 ER 809. See also US v. Kessler 1 Baldwin’s C C Rep. 15 (1829). t h e l aw o f t h e s e a 569 6-mile territorial sea coupled with an exclusive fisheries zone for a further 6 miles by only one vote. 77 Article 3 of the 1982 Convention, however, notes that all states have the right to establish the breadth of the territorial sea up to a limit not ex- ceeding 12 nautical miles from the baselines. This clearly accords with the evolving practice of states. 78 The UK adopted a 12-mile limit in the Terri- torial Sea Act 1987, for instance, as did the US by virtue of Proclamation No. 5928 in December 1988. 79 The juridical nature of the territorial sea 80 The territorial sea appertains to the territorial sovereignty of the coastal state and thus belongs to it automatically. For example, all newly indepen- dent states (with a coast) come to independence with an entitlement to a territorial sea. 81 There have been a number of theories as to the precise legal character of the territorial sea of the coastal state, ranging from treat- ing the territorial sea as part of the res communis, but subject to certain rights exercisable by the coastal state, to regarding the territorial sea as Download 7.77 Mb. Do'stlaringiz bilan baham: |
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