Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Publications on Ocean Development)

HISTORIC WATERS IN THE LAW OF THE SEA

Publications on Ocean Development Volume 61 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development General Editor: Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College, Oxford University

The titles published in this series are listed at the end of this volume.

Historic Waters in the Law of the Sea A Modern Re-Appraisal

by CLIVE R. SYMMONS

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2008

A Cataloging-in-Publication record for this book is available from the Library of Congress.

This book is printed on acid-free paper. ISBN 978 90 04 16350 8 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. Printed in the Netherlands

To Mike Reed, With fond memories of legal collaboration in two rounds of litigation involving Alaskan maritime claims.

Contents Preface and Acknowledgments ........................................................................ List of Maps ..................................................................................................... Chapter 1

General Issues Relating to Historic Waters

ix xiii

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1

Chapter 2 The Types of Waters to which Historic Claims may be Made .......................................................................................................

17

Chapter 3 The Regime of Historic Waters in the case of Bays/Coastal Archipelagoes ..............................................................................................

39

Chapter 4

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45

Chapter 5 Problems on Exceptional Title, ‘Ancient Rights’ and Burden of Proof ........................................................................................................

49

Chapter 6 An Example from the Past of an Excessive Claim and Adverse International Reaction: The Russian Ukase of 1821 concerning Waters off Alaska ..........................................................................................................

71

Chapter 7 Possible International Origins of Historic Claims to Waters: International Judicial Decisions, Proceedings before International Tribunals and Treaties ..................................................................................................

79

Chapter 8 Problems as to When and Whether an Alleged Historic Claim has been Made Eo Nomine .................................................................................

101

Chapter 9 The International Legal Requirements for Historic Waters/Bays .................................................................................................

111

Chapter 10 Exercise of Authority: The Need for a Formal, Clear and Consistent Claim ..........................................................................................

117

Chapter 11 The Necessity for Publicity of Historic Claim: Publication / Notication of the Claim to Other States .....................................................

139

Historic Rights and Delimitation of Maritime Zones

Chapter 12 The Need for Continuity of Historic Claim and for Satisfaction of the Time Factor ............................................................................................ 151 Chapter 13 The Need for Effective Exercise of Jurisdiction Chapter 14

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Knowledge of, and Acquiescence to, Historic Claims

163

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213

Chapter 15 Vital Interests (‘Vital Bays’): A ‘Fourth’ Factor Relevant to Evidence of Historic Waters? .......................................................................

247

viii

Contents

Chapter 16 Reliance for Historic Title on Succession to Actions and Claims of a Predecessor ...........................................................................................

259

Chapter 17

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271

Chapter 18 Conclusions: Does the Concept of Historic Waters have Continuing Relevance in Contemporary International Law? ......................

283

Appendix

301

Problems Relating to Disclaimer of Historic Title

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Lists of alleged Historic Bays

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301

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305

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311

Bibliography Index

Preface and Acknowledgements The doctrine of historic waters as such has not received much academic attention in the past. For example, even the supposed doctrine of historic bays has only received partial treatment in older treatises on the law of the sea and, in the post-war period, with the publication of two English-language monographs on the regime of bays generally, respectively by Strohl, The International Law of Bays (1963) and by Bouchez, The Regime of Bays in International Law (1964). The topic has also been incidentally dealt with in the broader context of historic title generally (and so not wholly in a maritime context) as in the useful and pioneering work by Blum in 1965, Historic Titles in International Law. In the early ‘60s two useful, but now dated publications, issued forth from the UN; namely, the Memorandum by the Secretariat of the UN, “Historic Bays” (30 September, 1957), and the Juridical Regime of Historic Waters, including Historic Bays (a study prepared by UN Secretariat of 9 March, 1962). The emphasis in the latter UN documents was again on historic bays(though noting a growing tendency to describe such maritime claims as “historic waters” (Juridical Regime, at p. 5) only incidentally touching on historic waters more generally such as historic archipelagic coastal waters or territorial seas (as was the situation in Alaska v. US (2005) which forms a central theme to this book). Additionally (id.), the Juridical Regime only claimed (modestly) to be an “initial” and “tentative” discussion of the topic. In more recent times, the only book of direct relevance to the present title appears to have been a somewhat narrowly-historical study published in Italian in 1990 by Gioia (Titoli Storici e Linee di Base del Mare Territoriale, Edizioni Cedam, Padova (1990)). Even the latter is now dated as to contents, as since that time the International Court of Justice (‘ICJ’) has considered the matter of historic bays in the Land, Island and Frontier case (the El Salvador/Honduras case) regarding the status of the Gulf of Fonseca;and the US Supreme Court most recently has adjudicated in depth on the claimed historic status of the waters of the Alexander Archipelago in Alaska v. US

x

Preface and Acknowledgements

(2005). It may thus be argued that there is need for an up-dated and comprehensive analysis and assessment of the whole doctrine of historic waters in the light of more contemporary international law developments, including State practice itself, such as the claim by Libya to the Gulf of Sirte in 1973. The author rst met with the legal problems relating to historic waters when supervising the successful PhD candidature of Dr Aziz Lahouasnia many years ago at the University of Bristol in a dissertation entitled: The Legal Regime of Internal Waters along the North African Coast, with Particular Reference to Historic Bays. However it was only after being engaged as an expert witness for the US federal Government in the case of Alaska v. US in early 2000 (Supreme Court No. 28 Original) – to analyse the alleged claim by the state of Alaska to historic title to enclaves of waters within the Alexander Archipelago off SE Alaska – that the present author came to examine in depth the legal complexities attaching to the doctrine of historic waters (Count 1 in the case). Accordingly, after two years of research, the author’s resulting lengthy Report on this issue was submitted to the US Department of Justice in early 2002 for the purposes of that litigation (as US Exhibit No. 20281). This case involved voluminous evidence relating to the alleged historic title issue going back to the Russian occupation of Alaska in the early 1820s (the Russian traders being at that time attracted to settle on the insular fringes of the Archipelago, such as Sitka, by the presence there of myriads of sea-otters which they proceeded, with Aleut help, to slaughter for their valuable fur pelts almost to the point of extinction). Alaska v. US (2005) has probably involved the most intensive judicial examination yet of the traditional international legal requirements for proof of title to historic waters, also including, as it does, novel issues such as the effect of non-listing of an alleged historic claim in academic writings; and even the effect of late interposition of another State’s shoreline adjacent to alleged historic waters (in this case Canadian), by retreat of the coastline by glacial melting – an unforeseen intertemporal consequence, perhaps, of global warming!. The case also unusually involved, as stated above, a claim to archipelagic coastal waters rather than to an historic bay, and the judgments therein conrm that historic maritime claims – with the same or similar legal rules thereon as have related to historic bays – may in principle extend to a range of territorial waters, particularly to coastal archipelagoes (in the case of which past precedents are few). The rst instance judge (the Special Master) conrmed this broader geographical trend of the historic doctrine, commenting in the process that the US Supreme Court had sometimes referred to ‘historic inland waters’ or ‘historic waters’ interchangeably, perhaps to emphasise that such waters may not satisfy the geographic denition of a bay. Because of the reliance of the doctrine of historic waters for its rules on customary international law alone (apart from the bare mention of the continuing ‘excepted’ existence of historic bays in Art. 10(6) of the Law of the Sea Convention (‘LOSC’), 1982, from the juridical regime there laid down), it may be argued that decisions of domestic courts on historic waters issues – as particularly by the US Supreme Court – have, in the light of relative dearth of other international authority – “a prospective utility as persuasive arguments for the future evolution of international law on the subject” (see L.F.E. Goldie, ‘Historic Bays in International Law – An Impressionistic Overview’ in (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 211, at p. 272). It is for this reason that

Preface and Acknowledgements

xi

US caselaw generally on alleged US domestic ‘historic’ maritime claims is extensively cited in this study; with the latest – as the most important case thereon to date – Alaska v. US (2005) – being used as a ‘case-study’ backdrop throughout the book to esh out many, if not most, of the various aspects of the supposed international legal rules on such claims. As there is an interplay between domestic factors and international law in these US cases, such domestically-articulated principles must be treated with some caution. The principal problem in this regard is that a federal entity may have a hidden agenda domestically which does not apply internationally; i.e., an intent, in the US context, not to concede Submerged Land Act (‘SLA’) seabed rights to a particular state of the Union(against the federal interest) by too liberal an interpretation of extent of US inland waters. There have, for this reason, been signs, for example, of a strained judicial attempt to view US federal/state maritime disputes as if they were effectively a dispute between two foreign States; so that the federal Government on this analogy has been judicially viewed as the equivalent of a foreign nation vis-a-vis its own component-state entities, even in terms of acquiescence in respect of a particular alleged ‘component state’ historic claim: as, for example, in the Report of Special Master Armstrong in US v. Louisiana, 1974, and in the judgment of the Supreme Court in this case, which, whilst noting that the relevant international law (the Territorial Sea Convention of 1958 (the ‘TSC’)) was “designed with an eye to affairs between nations rather than domestic disputes”, held that the only “fair way” to apply such law was to treat the US ‘federal’ situation as if it were an inter-state dispute as it would be “inequitable in adapting the principles of international law to the resolution of domestic controversy, to permit the National Government to distort these principles, in the name of its power over foreign relations and foreign affairs, by denying any effect to past events” (394 US 11, at pp. 77/8 (emphasis added)). This somewhat articial scenario was also reected in the US Brief (of 1964) in US v. California (at p. 34) in which it was stated that the “problem was. . . to identify the waters that would have been considered inland waters in relations between the [US] and foreign nations” (emphasis added). As Special Master Hoffman also pointed out – on a related theme – in the US v. Maine case (Report, 1984, at 12 (emphasis added)): The Supreme Court has adopted these [historic waters] criteria from general rules of international law. However, a successful State claim to historic inland waters will inevitably affect the stance of the Federal Government internationally. The Supreme Court has, therefore, added additional restrictions [to the three international ones] for states wishing to expand their inland and territorial waters at the expense of the high seas.

It is perhaps for such reasons ironic that Alaska alleged at the so-called ‘Juneau Hearings’ (1972, at p. 33) after the time of statehood that “illogically” the US federal authorities (rather than any foreign State) had been the “real adversaries” to Alaska’s alleged historic maritime claims. Despite such ctive and unreal features, US ‘tidelands’ caselaw, in ostensibly applying the law of the sea in such disputes, has involved discussion and application of the supposed customary rules in greater detail and depth than other international caselaw

xii

Preface and Acknowledgements

such as that of the ICJ in the Fisheries case, Libya/Tunisia and even El Salvador/Honduras. For such reasons these US federal decisions are worthy of inclusion, especially as in the ICJ cases – particularly the former two – the rules relating to such waters were not elaborated on by the plenary Court, being only incidental to the cases concerned. The El Salvador/Honduras case, however, is notable for the Dissenting Opinion of Judge Oda and his detailed and idiosyncratic analysis of the whole doctrine of historic waters, to the extent of denying that there ever was such a doctrine in the law of the sea, albeit in the unusual setting there of a pluristate historic bay. As the present author states in his concluding chapter (Chapter 18), the view of Judge Oda is one with which he has much sympathy, as there is some doubt, in the light of the vague, often unclear, and seemingly inter-connected nature of the supposed international rules, as to whether the doctrine of historic waters has ever operated in an erga omnes manner with an objective regime rather than, at most, in a quoad hunc/hos manner towards particular States only, based on broader legal considerations of acquiescence, consent and opposibility. I wish to thank Professor Scovazzi (and his publishers Guiffrè Editore) for permission to adapt certain maps in the present work from his Atlas of the Straight Baselines, 2nd ed., 1989. Clive R. Symmons, Dublin, Ireland, 2007

List of Maps Map 1

Gulf of Fonseca

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3

Map 2

The Tunisian claim to the Gulf of Gabes (1973) ...........................

7

Map 3

The waters alleged to be historic by Alaska v. US (2005)

Map 4

Gulf of Taranto

Map 5

Gulf of Sirte (Sidra) claim by Libya

Map 6

Discrepancies between the ‘1903 line’ and the later ‘Pearcy line’ in the Alexander Archipelago ....................................................... 137

Map 7

The Peter the Great Bay claim by the USSR

Map 8

Chaleur, Miramichi and Egmont Bays, Canada

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27

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60

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103

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294

Chapter 1

GENERAL ISSUES RELATING TO HISTORIC WATERS 1. What is the meaning of historic waters? 1.1 Working denitions Among the best denitions of the concept of ‘historic waters’ is that of Bouchez.1 He denes them as: “waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States”. Gidel’s (translated) denition – albeit essentially in the context of the narrower concept of ‘historic bays’2 – is more concise: namely, “those areas of water the legal status of which differs – with the consent of other States – from what it ought to have been according to the generally recognised rules”. It is noteworthy that both statements refer to the generally recognised/applicable rules of international law – a matter which will be commented on further below.

1 2

L.J. Bouchez, The Regime of Bays in International Law, Sythoff, Leyden, 1964, at 281. G. Gidel, Le droit international public de la mer, (Paris, 1932–4), vol. III, at 623.

2

Chapter 1

The epithet ‘historic’, of course, belies the time element behind the doctrine, as will be discussed in Chapter 12. As Norway commented in the Fisheries case,3 the word ‘historic’ shows clearly enough that such a title derives its “force from history”, that is to say from the “passage of time”. The broader phraseology of historic ‘waters’ is clear from the title, and content, of the inuential UN study, the UN Juridical Regime of Historic Waters (hereafter “UN Juridical Regime”), prepared in 1962 at the request of the International Law Commission (‘ILC’).4 Earlier, a memorandum on “Historic Bays”, prepared by the UN Secretariat, had pointed out that historic rights could be claimed in respect of areas other than bays.5 The 1962 UN study conrmed that the terms “historic bays” and “historic waters” are not synonymous; and that the latter term has “wider scope”,6 though the legal “status” of historic bays may be different from other historic waters. In the El Salvador/Honduras case, the ICJ synthesised the title and regime of historic bays with that of “historic waters”.7 1.1.1 Denitions in the ICJ In one of the most authoritative denitions, given by the ICJ in the Fisheries case8 – and more recently endorsed by the same Court in the El Salvador/Honduras case with reference to the Gulf of Fonseca9 – “historic waters” were stated to be generally understood to mean “waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title”. 1.1.2 Denitions in US caselaw US courts have not to date dened “historic waters” generally, but they have dened an “historic bay”: namely, as one “over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations”.10 The US Supreme

3 4 5 6 7 8 9

10

Pleadings, vol. 1 (Counter Memorial), at p. 452. UN Doc A/CN. 4/143. See ILC Yearbook, vol. II, at pp. 2, 3. See infra n. 53, at p. 23, para. 168. Id., at p. 24, para. 174. [1990] ICJ Reports, 92, at p. 588, para. 383. [1951] ICJ Reports 116, at p. 130. See supra n. 7, at p. 588, para. 384. Cf. Judge Torres Bernardez in the same case, id., at p. 714, fn. 1 (“the concept of ‘historic waters’ and the concept of ‘historic bay’ are not synonymous inasmuch as ‘historic waters’ may exist without the waters concerned belonging to a ‘historic bay’ ”); but he still sees such a bay as being ‘historic waters’ on the basis of the then UN-titled Report. See M.W. Reed, Shore and Sea Boundaries, vol. III (US Dept. of Commerce, Washington, 2000) at 88. Similarly, “historic bays” are not mentioned in specie in relevant US legislation, such as the Submerged Lands Act (1953) (‘SLA’). According to the Supreme Court in US v. California (381 US 139, 151(1965)), the removal of mention of them in this context was “on the grounds that it would prejudice and limit the position which the [US] could take in its future conduct of foreign affairs”. See also L.F.E. Goldie, ‘Historic Bays in International Law – An Impressionistic Overview’ (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 211, at p. 230,

General Issues Relating to Historic Waters

89°

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Chapter 1

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Court has additionally stated that in its opinion, “the term ‘historic bay’ [was] used interchangeably with the term ‘historic inland waters’”.11 1.2

Historic rights

There is also in existence the separable idea of a State acquiring “historic rights” – normally in high seas areas, but without any connotations as to sovereignty in the locale, such a historic shing rights(as discussed in the Fisheries Jurisdiction cases, and the Tunisia/Libya case).12 In fact this matter inter-relates with the more specic issue of ‘effective jurisdiction’ which is of the relevance to any claim in the traditional historic waters context where such title is dependent on the “scope of the claim itself” and “commensurate with the actual activity of the State [claimant]”.13 Thus, for example, the arbitral tribunal in the Eritrea/Yemen Arbitration Award (2001)14 found the analogous “traditional shery regime” in the area of dispute relating to “artisanal shing” operated not only in territorial waters, but beyond them. The term ‘historic rights’ is broader than that of historic waters. It implies, in its widest sense, a State claiming to exercise certain jurisdictional rights in what usually are international waters, most particularly shing rights. Such rights must, however, basically satisfy the same, or at least similar, supposed requirements for establishing ‘historic waters’ claims per se, particularly those of continuous and long usage with the acquiescence of relevant other States.15 For example, in the Tunisian pleadings in Tunisia/Libya, it was, in effect, argued that historic rights were claimable on a similar basis to that relation to historic waters, namely that they were established by exercise of peacable and continued sovereignty, with prolonged toleration on the part of other States.16

11 12

13 14 15

16

who also stresses (at p. 231) that the Supreme Court in US v. California assumed Congress (in passing the legislation) had left responsibility for dening “inland waters” to itself (381 US 139 at pp. 150/151). For the dropping by the Senate Committee of a phrase dening “inland waters” which included the term “historic bays”, in the ‘SLA’, see S. Rept. No. 133, 83d Cong., 1st Sess., p. 18, cited in the US Brief in US v. California (1964) at p. 96. US v. Louisiana, 394 US 11, at p. 75 n. 100 (1969). Respectively [1973] ICJ Reports 3; and [1982] ICJ Reports 18, at pp. 32, 63, and 71 (para. 97) referring to the Tunisian claim that it possessed well-established historic rights, including “xed and sedentary sheries” in certain sea areas (historic rights from “long-established shing activities”). The Court noted (id., at para. 98) the “antiquity” and “continuous exercise” of this exploitation over “xed sheries”); and (at para. 99) that Tunisia claimed that these rights had been “recognised for centuries by other States”. The Court concluded (at p. 74, para. 100) that such rights continued to be “governed by general international law”. Bouchez (op. cit., at p. 248) appropriately labels these rights as “non-exclusive historic rights” in the high seas. UN Juridical Regime, supra n. 4, at 13, paras. 85/6: see further below Chapter 10, section 3. 40 ILM, at para. 109. Y. Blum in ‘Historic Rights’ in Encyclopaedia of Public International Law, vol. 2 (Amsterdam, Elsevier), 710–15. See, e.g., “Les Droits historiques de la Tunisie” in its Memorials (Pleadings, vol. 1, para. 4.05); and J.M. Spinnato, ‘Historic and Vital Bays: An Analysis of Libya’s Claim to the Gulf of Sidra’, 1983–84 13 O.D.I.L. 65, at p. 72.

General Issues Relating to Historic Waters

5

Despite some afnity of rules, such claims differ substantively from claims to historic waters. Firstly, these claimed rights only apply on a quoad hunc basis, not erga omnes as do, arguably at least, claims to historic waters; and they may not even have the word ‘historic’ attached to them. Thus, for example, in the Fisheries Jurisdiction cases,17 the ICJ, referred essentially to the “established rights” rather than historic rights of the two Applicants, though individual judicial opinions in the case do, it is true, use the term “historic rights”.18 It is to be noted, though, that the ICJ’s plenary judgment (e.g., regarding Germany)19 does refer to Iceland having “admitted the existence of the Applicant’s historic and special interests in the shing in the disputed waters”; and the Memorial (on the Merits of Germany)20 stated that the problem of shing rights in the high seas “ha[d] been mostly referred to as a case of recognition of ‘historic’ rights”; but that “such styling . . . ha[d] rather confused the issue, because the recognition of continued foreign shing in extended zones of jurisdiction is not so much founded on a special legal position acquired by previous uninterrupted use in deviation from an existing rule of law, but rather on the recognition of the special interests of other States in the zone which is now brought under the coastal State’s jurisdiction”. Such vestigial ‘high seas’ rights have, of course, continuing international recognition now in Art. 62(3) of the LOSC relative to giving access to sh stocks by other States in an EEZ, (i.e., “States whose nationals have habitually shed in the zone”).21 Secondly, historic rights differ from ‘historic waters’ inasmuch as they do not, as stated above, amount to zonal claims of jurisdiction or sovereignty. As Judge De Castro said in the Fisheries Jurisdiction cases,22 historic rights of States concerned with “high seas shing” do not give them “acquisition over the sea by prescription”: merely “respected” rights by “long usage” Similarly, for example, in Qatar/Bahrain, the ICJ held, in relation to Bahrain’s alleged historic rights over pearling banks in an area of

17 18

19 20

21

22

[1974] ICJ Rep. 3, at p. 29, para. 67. The plenary Court decided that Iceland’s extension of its exclusive shery jurisdiction beyond 12 miles was “not opposable” to the UK (or Germany) rather than being invalid “erga omnes”; but see the reference to “historic rights” of the UK as such by Judge Ignacio-Pinto (id., at p. 35); Judge Gros (Dissenting Opinion, id., at p. 144, para. 29); also Dissenting Opinion of Judge Petren (at p. 162); Declaration of Judge Nagengra Singh (id., at p. 39); Joint Separate Opinions of Judges Forster, Bengzon, Jininez De Arechaga, Nagendra Singh and Ruda (id. at p. 47); Separate Opinion of Judge Dillard, (id., at p. 55); and of Judge Waldock (id. at p. 120, para. 33). Supra n. 17, at p. 197. See Pleadings, vol. II, at p. 252, para. 127 (emphasis added); also id., at p. 255, para. 136 (problems of “traditional” shing rights in the new LOSC in extended areas of maritime jurisdiction). In this respect there is a broader analogy with a developing new custom in the law of the sea, the validity of application against another State there depending on whether that State has “accepted or acquiesced in it” (Judge Waldock, Separate Opinion, at p. 120, para. 34 citing Gidel, supra n. 2, at pp. 133–4. See also Pleadings, id., at p. 121, para. 35. Supra n. 17, at p. 99.

6

Chapter 1

seabed in dispute, that these had never led to the recognition of a quasi-territorial right to the shing grounds or the superjacent waters.23 There was some discussion in the pleadings in Tunisia/Libya as to the inter-relationship between historic rights (on the one hand) and historic waters (on the other). For example, in oral pleading,24 Tunisia stated that when it afrmed historic titles in a certain zone (the 45° line one) it did not claim that this zone was basically composed of “eaux historiques”, but simply “historic shery rights”. On the sometimes-confused inter-relationship between the concepts of “historic rights” on the one hand, and “historic waters” on the other, there was in fact a claim by Libya25 that there were in evidence in that case no less that three separate “historic claims” by Tunisia in the case which had to be “sharply distinguished”, namely, rstly, that the Gulf of Gabes was an “historic bay” (see Map 2); secondly, that there was an area, not necessarily coincident with the Gulf, over which Tunisia had asserted “historic rights”; and that, thirdly, there was a maritime boundary between Tunisia and Libya also based on “historic rights”. A third possible difference between the twin concepts of historic ‘waters’ and historic ‘rights’ is that claimed historic waters must necessarily be adjacent to the claimant State. Bouchez, for example, has maintained that it is “impossible for a non-coastal State to be entitled over a [historic] sea area situated near the coast of other States”.26 This adjacency requirement follows the general international legal requirement of States being allowed only to claim territorial waters immediately off and adjacent to their coastlines.27 It appears that past confusion over the more limited notion of “historic rights” has had a ‘knock-on’ effect which has led some States to claim sovereignty over historic bays on this basis alone – e.g., resulting from sedentary shery rights outside territorial limits. Thus, for example, in its Reply to the 1929 questionnaire of the Hague Codication Conference, Australia seemingly recognised the historic bay concept “without sufciently distinguishing it from the more limited ‘historic right to sedentary shing’ ”.28

23 24 25 26 27

28

[2001] ICJ Rep. 2001, 40, at p. 112, para. 235. See Dupuy, Pleadings, vol. 4, at p. 471. Reply of Libya, Pleadings, vol. 4, at p. 113, para. 29. Op. cit., supra, at p. 238. See Tunisia/Libya, Reply of Libya, Pleadings, vol. 4 at p. 114, para. 31, (areas “adjacent to the coastal State”). D.W. Nixon, “A Comparative Analysis of Historic Bay Claims”, attached as a Technical Annex (II-3) to the Reply of Libya, Pleadings, vol. IV, at pp. 321, 322.

General Issues Relating to Historic Waters

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Chapter 1

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2. History and Legal Sources of the Alleged Rules on Historic Waters 2.1

Origins of the doctrine

2.1.1 Of historic waters Some commentators29 have opined that such historic title was rst claimed by the US in the North Atlantic Fisheries Arbitration of 1910.30 More generally, the UN Juridical Regime31 summarises the origin of ‘historic waters’ as having “its roots in the historic fact that States through the ages claimed and maintained sovereignty over maritime areas which they considered vital to them without paying much attention to divergent and changing opinions about what general international law might prescribe with respect to the delimitation of the territorial sea”. 2.1.2 Of historic bays Strohl32 has stated that the term “historic bay” appears to be a “comparatively recent one in the lexicon of international law”; and that its relative modernity probably dates back no further than Dr Drago’s dissent in the 1910 North Atlantic Fisheries Arbitration. The Norwegian Counter-Memorial in the Fisheries case33 alleged that the theory of historic bays was “invented” by jurists in the 19th century and this then led to the broader doctrine of “historic waters”. Likewise, there was a British claim in that case that it was only at the end of 19th century that a distinct category of “historic bays” came to be clearly contrasted with ordinary bays.34 2.2

Legal sources of the supposed rules

These sources must inevitably be found within international customary law because of the lack of treaty law on the doctrine (see below). Thus the formal source of this aspect of the law of the sea is essentially to be found in the limited State practice concerning historic waters, supplemented by discussion in UN documents, US caselaw, and in the works of commentators. 2.2.1 Lack of codication of historic waters in law of the sea treaties It is perhaps surprising that despite past judicial decisions – both municipal and international (including the ICJ)35 approving the concept of historic bays at least – and despite 29

30

31 32

33 34 35

E.g., T. Scovazzi in D. Pharand, and U. Leanza, The Continental Shelf and Economic Zone: Delimitation and Legal Regime, Kluwer (1993), 321 at p. 322. North Atlantic Fisheries Arbitration (1910) S. Doc. No. 370, 61st Cong., 3d Sess., vol. 1, Award of the Tribunal. Supra n. 4 at p. 7. The International Law of Bays (Nijhoff, The Hague), 1963, at pp. 251, 269. Drago’s dissent has been generally viewed as containing the earliest use of the term ‘historic bay’: see the study of D.W. Nixon, supra n. 28 at pp. 320, 323. Drago referred to Chaleur and Miramichi bays in the USA as being among “the historical bays”, forming a “class distinct and apart” from other bays. Pleadings, 31/7/1950, at p. 532. Id., at p. 548. Namely, in the Anglo-Norwegian Fisheries case (hereafter “Fisheries case”) 1951 (supra

General Issues Relating to Historic Waters

9

the voluminous writings of publicists on the issue of historic waters, in general neither the Convention on the Territorial Sea and Contiguous Zone, 1958 (hereafter ‘TSC’) nor the 1982 Law of the Sea Convention (hereafter ‘LOSC’) codied this area of the law of the sea.36 As the Special Master commented in the latest relevant US litigation, Alaska v. US (2005),37 the TSC “recognises the existence of historic inland waters[sic], but does not specify the criteria for identifying them”. This ‘casus omissus’ in treaty law had been commented on previously by the US Supreme Court;38 to the effect that historic bays were not dened in the TSC (Article 7) and that “therefore [the concept] derives its content from general principles of international law”. For this reason – namely the reliance of the doctrine for its rules on customary international law alone – it may be argued that (perhaps ironically) decisions of domestic courts on historic waters issues – as particularly the US Supreme Court – have, in the light of relative dearth of other international authority, “a prospective utility as persuasive arguments for the future evolution of international law on the subject”.39 Thus, – as stated in the Preface – US caselaw on alleged US domestic ‘historic’ maritime claims is extensively cited in this study; and the latest – the most important US case thereon to date – Alaska v. US (2005)40 – is used throughout this work as a ‘case-study’ backdrop. 2.2.2 The paucity of reference to matters ‘historic’ in the LOSC Even in the LOSC there are only three ‘oblique’ references to historic title issues (or arguably four if one takes Art. 298(1) into account which allows exclusion of “disputes” involving “historic bays or titles” from compulsory dispute settlement procedures).41 Goldie gives as the reason for this lack of codication42 the inability of the International Law Commission (‘ILC’) and the two Law of the Sea Conferences to strike a balance between those States with “authentic” historic waters claims and those States opposing particular claims or opposed to the facilitation of enclosure of “ocean regions” as a matter of principle.

36 37

38 39 40

41 42

n. 8), the Tunisia/Libya Continental Shelf case [1982] ICJ Reports, 18; and most recently, the Land, Island and Frontier case (hereafter the El Salvador/Honduras case), 1990 (supra n. 7). See L.F.E. Goldie, supra n. 10, at p. 214. No. 128 Original: Report of the Special Master on Six Motions for Partial Summary Judgment and One Motion for Conrmation of a Disclaimer of Title, March 2004, at pp. 13/14. In US v. Louisiana 394 US 11, at p. 75 (1969). Goldie, supra n. 36, at p. 272. For convenience of reference the date of the plenary Supreme Court decision in this case is used throughout (reported in 545 US 75 (2005)). Goldie, supra n. 36 at pp. 216/7. Id., at p. 218.

10

Chapter 1

2.2.3 UN sources Because of the abovementioned lack of treaty law, reliance on the UN documentation on historic title (as mentioned above) is evident in international caselaw: for example in the pleadings of Libya in Tunisia/Libya.43 Similarly, in regard to the international legal requirement in the ‘tidelands’ litigation cases (i.e., US federal/component-state litigation over maritime boundaries inter se),44 it is noteworthy that various ‘Special Masters’ (i.e., ad hoc rst instance judges of the US Supreme Court), and the plenary Supreme Court itself, have relied heavily for such authority on the UN-published Juridical Regime. For example, in the latest US litigation before the US Supreme Court involving a claim to historic waters, namely Alaska v. US (2005) (referred to for convenience hereafter as ‘Alaska v. US (2005)’, though the Special Master’s Report in that case appeared in 2004), both the (Alaskan) state and federal sides relied heavily on this UN study,45 as also did the Special Master in the case.46 2.2.4

The inuence of commentators

2.2.4.1 On the rules Important though the opinions of publicists have been as to the nature of the rules on historic waters, Strohl makes the apt comment47 that several publicists have done “little more than quote or cite others” on the issue of the substantive requirements for the establishment of historic waters. As McDougal & Burke say: “writers have been inuential in the sense that much of what is said about the processes of claim and decision [on historic bays] comes from the speculations of writers, subsequently elevated to the status of ‘law’, and not from concrete claims and counter-claims by interested States”.48

43

44

45

46

47 48

See the Reply of Libya citing the UN Juridical Regime of 1962 (supra n. 4), Pleadings, vol. 4, at p. 115 (para. 33) relating to the allegation that Tunisia had to show exclusive shing in the Gulf; and that the limited Tunisian claim to surveillance and control over the xed and sedentary sheries (the sponge sheries) was not adequate for a claim to internal waters as jurisdiction must be “commensurate”. See M.W. Reed, op. cit., supra n. 10 at p. 324. He denes such ‘tidelands’ cases (id., at p. 392) as that “body of litigation between the federal government and the coastal states that has determined ownership over submerged lands and resources seaward of the coastline and dened that coastline through the application of international law”. See, e.g., Alaska’s Exceptions (at p. 29) in Alaska v. US (2005) (supra nn. 37 and 40) to prove that discriminatory enforcement of shing regulations against foreigners is an “assertion of authority to exclude foreign vessels which gives rise to historic waters status, citing the UN study at pp. 13–14. See, e.g., his Report, supra n. 37 at p. 137 (at least “one inuential source” (i.e. the Juridical Regime at pp. 20–21) suggested that two nations in some instances jointly may form historic waters. Op. cit. at p. 269. The Public Law of the Oceans, (New Haven, Yale UP), 1962, at p. 259.

General Issues Relating to Historic Waters

11

One might also make the same comment on the relevant UN documents to date on the topic which have been so inuential with US courts and elsewhere;49 for these in turn also tend to extensively and repetitiously cite opinions of such publicists. 2.2.4.2 Problems arising from the ‘listing’ of alleged examples of historic waters/bays The same problem of repetition and reiteration – including, indeed, in some cases consequential erroneous assessment of claims – exists regarding past listing of supposed historic bays and waters in various publications, as successive writers have attempted to cite “specic illustrations” of historic bays of their predecessors “notwithstanding that the states concerned [may] have never made [such] specic assertions of title”;50 so that the lists of bays commonly given by writers include now not only these bays claimed by States, “but also others asserted to be historic because [commentators] have so regarded them”.51 Thus, the past lists – even when drawn up by a UN body – tend often to be unreliable instances of historic claim, containing self-perpetuating and recycled information, even when, as in the1962 UN study in the Juridical Regime,52 it is claimed that such a list is exhaustive (“a comprehensive enumeration”). Accordingly, many of the published listings of historic bays in academic works are unreliable: such as the listing under “Historic Bays” in the 1957 UN Memorandum,53 which is misleading particularly because it includes many bays with modest distances as to their mouths, which accordingly may now be viewed by their owners as juridical bays.54 Additionally, there is the danger that repeated citation as to a historic claim in successive such listings may short-circuit objective satisfaction of the traditional international legal requirements for historic waters. An expert witness report in the Tunisia/Libya pleadings55 rightly warned that: “[a]fter a sufcient number of repetitions, the danger exists that historic status may be accepted although there is little or no evidence to substantiate the claim to full sovereignty”, citing the example of the shadowy ‘historic’ origins of Exmouth, Van Diemen, Shark and Moreton Bays in Australia.56

49

50 51 52

53

54 55 56

Pharand, for example, describes the UN documents as “a very helpful source of information” on same: see ‘Historic Waters in International Law, with Special Reference to the Arctic’ (1971) XXI Toronto Law Journal 1, at p. 6. McDougal & Burke, op. cit., supra n. 48. Mc Dougal and Burke, id., at p. 361. Supra n. 4 at p. 5. This expressly stated that the previous Secretariat’s Memorandum “contain[ed] a comprehensive enumeration [of historic bays]”, and that “it would be difcult to make useful additions thereto without consulting the Governments” (emphasis added). Memorandum by the Secretariat of the UN, “Historic Bays” (Preparatory Document No. 1) A/CONF. 3. 1, September 30th, 1957, at pp. 3–8 (cited by M. Whiteman’s Digest of International Law, Vol. 4, pp. 233–242) (hereafter “UN Memorandum 1957 ”). See, e.g., below, Chapter 17. D.W. Nixon in his Report, supra n. 28, at p. 334. These allegedly rst appear as ‘historic’ bays in a letter of 1936 (to Professor Charteris from the Australian Navy Ofce), which was later reproduced merely in a footnote in his textbook

12

Chapter 1

Despite such evidentiary failings, academic discussion and categorisation in support of supposed historic claims has been used as evidence of historic title in international litigation. For example, by Tunisia in Tunisia/Libya which listed the authors who had (allegedly) accepted the existence of international acquiescence to Tunisian sovereignty in the zone of sedentary sheries. Such an ‘academic’ listing as historic of a particular bay there, though, – the Gulf of Gabes – was in fact a cause of complaint by Libya in its pleadings.57 Similarly, El Salvador in its pleadings in the El Salvador/Honduras case58 set out all the international commentators, who had supposedly supported the 1917 judgment on the status of the Gulf of Fonseca as a condominium (see Map 1), as a “valid and authoratitive precedent”.59 In this case, the International Court of Justice (hereafter ‘ICJ’), whilst saying that the historic status of the Gulf of Fonseca had been “generally accepted by the commentators”, seems to have assumed the existence of continuing universal acquiescence of the historic nature of the Gulf from somewhat scanty evidence – including (it seems misguidedly) evidence of approval by the US of it being historic waters – where the attitude of other States to the status of the Gulf was unknown.60 In particular (in support of this), the Court itself cited as evidence of acquiescence just two text book writers.61 It seems, therefore, to be seen as important, based on such precedents, that a State laying claim to historic waters relies on what commentators have said on the status of the waters in question, almost as if it were a substitute for state practice. 2.2.4.3 Listing of historic waters and Alaska v. U.S. (2005) In fact no legal commentators on the law of the sea have ever, it seems, made any allusion to the waters of the Alexander Archipelago – which was subject to the recent litigation between the State of Alaska and the US in Alaska v. US (2005) – as being historic, particularly in the sense of such title stretching back to possible 19th century Russian claims. For example, even US commentators in the last century, as preeminently Jessup in his leading work, published in 1927, when making a methodical listing of historic maritime claims – and not just bays,62 as also Hyde in his leading

57

58 59 60

61

62

on international law “and ha[d] been ‘reluctantly cited as an authority ever since’” (id., at p. 332). Dupuy, Pleadings, vol. 4, at p. 466; and see Libyan Memorial, Pleadings, Vol. 1, para. 139 at p. 505 (academic writers had treated the regime of the Gulf of Gabes with caution apart from Francois in his ILC Report). Reply of El Salvador: Pleadings, vol. IV, at pp. 190–192. Id., at p. 190, para. 6.76. In fact it appears that the US never originally recognised the Bay’s waters as historic as such; see the comment by I. Scobbie, ‘The ICJ and the Gulf of Fonseca’, 18 Marine Policy (1994) 249, at p. 258 (the US only recognised the waters as being “territorial”). See, e.g., Gidel, op. cit., at pp. 626/7 and Oppenheim (ed. Lauterpacht), Vol. 1, International Law, at pp. 593/4. Cf. the Dissenting opinion of Judge Oda on this, supra p. 2, at p. 747, para. 28 (statements carrying “little cumulative value”). P.C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction, Jennings, New York, 1927, at p. 373 et seq.

General Issues Relating to Historic Waters

13

work,63 – make not the slightest reference in this context to the waters of the Alexander Archipelago.64 If such a claim had been in existence by the 1920s, one would have expected some mention of this by at least the leading US authors. 2.2.4.4 The possible legal effects of omission from such listing on historic status Omission from such listing has been seen as being of some consequence in state practice. For example, the US has at times relied on exclusion from this list as a ground for denying such claims by other nations, as in its protest to Australia over claimed historic bays,65 wherein it pointed out that none of these bays was listed in the 1957 UN study (below). In the Alaska v. US litigation (2005), the non-listing of the Alaskan-alleged historic ‘claim’ to the waters of the Alexander Archipelago in the relevant published lists by authors or in UN documents became an important issue in support of the federal argument there. For example, that the authoritative UN 1957 study on Historic Bays65a did not contain mention of the Alexander Archipelago of Alaska as containing historic waters. Thus the legal effect of such ‘list omission’ had, unusually, to be judicially considered in this case; and the non-inclusion of these waters in any published list was indeed found by the Special Master in this federal litigation context66 to be an additional reason why the waters were not historic. As he said, “the [US] has asserted without contradiction that no published list of the world’s historic waters includes the waters of the Alexander Archipelago”; and “the absence of any publication identifying the waters as historic waters gives credence to the view that the [US] never made a sufcient assertion of authority to exclude foreign vessels from making innocent passage [there]”. The Special Master thus indicated that non-inclusion of a claim on an international list is prima facie evidence of the waters in question not being historic. As he added:67 63

64

65

65a 66

67

C.C. Hyde, International Law Chiey as Interpreted and Applied by the United States, 2nd ed. 1946. Ironically, Norway in the Fisheries case was to cite Hyde’s volume in the particular context of the “coast of Alaska”, respecting which he had stated that the “coast of Alaska [was] indented by certain bays of broad dimensions, which by reason of their relation to land, appear to belong in a geographical sense to the sovereign thereof” and which “[were] water areas which, regardless of the distance between headlands, it is believed that the United State may formally claim to be its own without violating any requirement of international law” (emphasis added). However, even Hyde only here instanced as inland waters such ‘bay’ examples as parts of Bristol Bay and Cook Inlet; and he did not mention the Alexander Archipelago at all. See Pleadings, vol. I, at p. 473 et seq.: also the Counter-Memorial of 31/7/50 at p. 446. Jessup includes US Delaware, Chesapeake, Long Island Sound, and Monterey as historic bays (op. cit. at pp. 395, 388, 424 and 429). As cited by J.A. Roach & Smith R.W., United States Responses to Excessive Maritime Claims (2nd ed. 1994) at pp. 36/7. Judge Oda in El Salvador /Honduras interestingly only mentions Delaware and Chesapeake bays in the case of the US being “claimed on the ground of continued or long-standing usage”; but points out (at para. 11, p. 737) that Oppenheim (op. cit., vol. I, at p. 191 (1905)) noted that “several European writers oppose [even] this [US] claim”. Supra, n. 53. Likewise in the El Salvador/Honduras case, Judge Oda examined to what extent UN documentation had mentioned the Gulf of Fonseca as an historic bay: supra n. 7 at p. 748, para. 29. Report, supra 37 at p. 111 (emphasis added). See also at p. 89, where he refers to the 1957 UN Study which he says, describes numerous historic bays around the word, including US bays such as

14

Chapter 1 Alaska correctly asserts that inclusion in a list is not a requirement under the [Supreme Court’s] precedents . . . Yet, even if publication is not required, the absence of publication has signicance in international disagreements about historic waters claims.

In its appeal to the Supreme Court, Alaska expressly referred to the fact that the Special Master had noted the non-inclusion in any published list of the world’s historic waters of the Alexander Archipelago in his Report and (unsuccessfully) sought a reason to downplay this.68 The publicity requirement for a valid claim to historic waters (see below, Chapter 11)69 is also a reason why inclusion of an alleged historic claim in lists of historic bays in UN publications and legal textbooks may play a vital probative role in this connection, as commentators on individual State historic claims have remarked on this aspect of the ‘listing’ scenario. Absence of a listing may also have relevance as tending to further obscure the existence of such an alleged claim where there is non-reaction by the actual claimant State (arguably even leading to ‘estopping’ any later alleged claim by that State). For example, in Alaska v. US (2005) under the head of on “United Nations Studies”,70 the Special Master, in referring to the Evensen study on treatment

68

69

70

Chesapeake and Delaware Bay, but “does not identify the waters of the [Alexander Archipelago] as a historic inland bay”. It responded that in the case of another historic waters area in the US – the Mississippi Sound – this had been held in US caselaw to be historic waters “even though it does not appear on such a [UN] list”; adding (at p. 112) that “the Alexander Archipelago would be much harder to overlook than the Mississippi Sound” as it “covers eighteen times the area and has far more international trafc”. It also alleged that “[s]uch lists of necessity only give examples of historic waters, for there would be insurmountable difculties in trying to prepare a denitive list” (Exceptions to Report of Special Master on Motions for Summary Judgment, No. 128 Original). The same point was made by Professor Charney in his preliminary expert witness report for Alaska (Charney, J.I., Preliminary Report of Expected Testimony on the Subject of the Historic Waters of the Alexander Archipelago (expert witness for the state of Alaska in Alaska v. US (2005)) of 15 February, 2002, at p. 5). It may be commented here non-inclusion of the latter is probably because, as is stated in Scovazzi et al. (eds.), Atlas of Straight Baselines, 2nd ed. (1989) at p. vi, such ‘tideland case’ domestic decisions are seen as suspect in international legal terms. The Special Master noted the Alaskan argument that Mississippi Sound did not appear on the [UN’s] study of historic waters cited by the US, but that the Supreme Court had nonetheless ruled that Mississippi Sound constituted historic waters. He then cited a reference (id. at p. 112) to this writer’s expert witness Report on behalf of the Federal Government (Exhibit US-I-1) concerning the US protest to Australia’s historic bay claims on the very basis of their not being listed in the 1957 UN study. For example, in an Australian context, W. Edeson (‘The Validity of Australia’s Possible Maritime Historic Claims in International Law’ (1974) 48 Australian Law Jnl. 295, at p. 301) lists all the various sources where a purported Australian historic ‘claim’ (to Shark Bay) was mentioned, including the 1902 Palk Bay case, a 1942 book, the pleadings of the Fisheries case, and, most importantly, the 1957 UN Memorandum on Historic Bays. Supra n. 37, at pp. 88–89.

General Issues Relating to Historic Waters

15

of archipelagoes prior to 1958 UN Conference,71 stated that it was undisputed by the parties that that commentator believed the waters of the Alexander Archipelago not to be inland; and the Special Master noted that the alleged historic claimant, the US, “did not object or otherwise indicate disagreement with the report”.71

3. The Problem of Lack of Clarity as to Terminology and the Rules Relating to Historic Waters In 1930, at the Hague Codication Conference, the Second Committee recognised the existence of ‘historic waters’, but admitted that no “denite or concrete results [could] be got without determining and dening those rights”.72 Scovazzi73 comments rightly that the successive international conferences on the law of the sea have avoided giving a precise answer to certain difcult questions which arise in this regard. In more recent times, Judge Oda in his Dissenting Opinion in the El Salvador/Honduras case74 has questioned the very term “historic bay” (in contrast to the rest of the Court). He there opined that “the lack of a reference to a historic bay [in the 1930 Hague Codication Conference] draft articles was presumably due to the difculty of generalising historical elements that could have justied giving the status of bay to certain coastal congurations which would otherwise not be regarded as bays because of their larger measurement at the mouth”; and that75 “[e]ven the term ‘historical bay’ itself never seems to have been employed in a judicial determination or a scholarly work prior to 1917” (i.e., the date of the Gulf of Fonseca case (1917)) except in the 1910 North Atlantic Fisheries case.76 He also validly pointed out that the Central American Court in the 1917 case never actually christened the Gulf of Fonseca as an “historical bay” as such, as it merely stated that it was “possessed of the characteristics of a closed sea”.77 The older caselaw and State practice said to lie behind the origin of rules on historic waters possess a similar vagueness about precise rules which should apply to such waters. There is no doubt, for example, that early alleged historic waters claims, – as, 71

72

73

74

75 76 77 78

Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagoes, by J. Evensen: UN Doc. A/CONF. 13/18 (November 29, 1957). Supra n. 37 at p. 89 (emphasis added). He acknowledged, though, that this Report was “not stating the ofcial views of the [UN] Secretariat”. and it did not cite any sources or authority for his views (id.). Acts of the Conferences for the Codication of International Law, Vol. III, at p. 211, cited in A/CN. 4/143, p. 24. para. 174. At this Codication Conference (1930) neither the Plenary Committee nor Sub-Committee II formulated any text concerning historic waters (cited in the Reply of the UK in the Fisheries case, Pleadings of 28/11/50, at p. 628). T. Scovazzi, in D. Pharand, and U. Leanza, The Continental Shelf and Economic Zone: Delimitation and Legal Regime, Kluwer (1993), 321, 323. Supra n. 7 at p. 742, para. 18. Id., at p. 474, n. 27. See supra, n. 30. Supra n. 7 at p. 750, para. 32 (emphasis added); and see, id., at p. 755 (“while the 1917

16

Chapter 1

for example, by the US to Delaware Bay79 – did not originally (when their status was judicially determined, at least) require the modern ‘criteria’ for creation,80 even perhaps glossing over the vital matter of ‘acquiescence’. These situations often also implied no intent by the claimant State to make any ‘exceptional’ claim (see below), such a claimant stressing instead geographic, economic, political matters etc.81 In centuries past, realisation among nations of an historic waters doctrine as it would later develop was indeed minimal. As the UK was to perceptively state in the Fisheries case,82 it was not, for example, to be expected that in 1793, US Attorney-General Randolph “would give full expression to the subsequently developed modern theory of historic waters as an exception to the general rules for the delimitation of maritime territory”, though the bay in question (Delaware) was later viewed as one of the classic examples of historic bays.83

79

80 81

82

83

Judgment did not use the term [‘historic waters’], [this Court] alone attempts to rely on the concept of ‘historic waters’ ”). Cited, for example, in the Fisheries case (UK Reply, Pleadings of 28/11/50, p. 610/11, para. 438). See e.g., McDougal & Burke, op. cit., at p. 360. See further Chapter 15. This is not to infer, however, that a more contemporary judicial decision can retrospectively waive any of the present-day requirements in respect of an ‘old’ claim: see also Chapter 16, section 2.3. Reply, 28/11/50 at para. 438. The UK said the same about the Alleganean decision regarding Chesapeake Bay: id., at para. 441. See infra, Chapter 15, section 1.

Chapter 2

THE TYPES OF WATERS TO WHICH HISTORIC CLAIMS MAY BE MADE 1. Historic Title not Conned to Bays The ICJ, in conrming in the Tunisia/Libya case that it is still general international law (i.e. customary law) which governs historic title,1 afrmed that it seemed clear that “this matter continue[d] to be governed by general international law which does not provide for a single ‘regime’ for ‘historic waters’ or ‘historic bays’, but only for a particular regime for each of the concrete, recognised cases of ‘historic waters’ or ‘historic bays’”. This ‘no-single-regime’ statement evidences that the doctrine of historic waters is not conned to claims to ‘bays’, with which topic most treatises have dealt in the past.2 This factor is, however, not clear from the relevant treaty law on the law of the sea. For example, Strohl, amongst other commentators, points out that although the TSC (1958) only refers specically to an historic claim being made in respect of an “historic 1

2

[1982] ICJ Reports, at pp. 73/74, para. 100 (emphasis added). The Court noted that the draft UNCLOS Convention did not contain “any detailed provisions on the ‘regime’ of historic waters” nor was there “a denition of the concept [or] an elaboration of the juridical regime” of such. Notably L.J. Bouchez, The Regime of Bays in International Law, (Sythoff, Leyden), 1964; and M.P. Strohl, The International Law of Bays (Nijhoff, The Hague), 1963.

18

Chapter 2

bay”,3 there is no reason why an historic claim may not, in appropriate circumstances, be made to other coastal waters where there is at least some evidence of geographical enclosure, or connection with, the adjacent landmass: such as in respect of the waters (as now encloseable) within a coastal archipelago on the basis of Article 4 of the TSC (now, of course, Article 7 of the LOSC). It seems to be agreed, then, that historic maritime claims – and the same or similar legal rules thereon – may in principle extend to a broad range of territorial waters, and particularly to coastal archipelagoes,4 though strangely actual precedents here are few.5 As Blum comments,6 “it may safely be assumed that the considerations underlying the juridical regime of historic bays do apply to the same extent to historic waters in general”; though, of course, as will be seen, the type of jurisdiction which is enforceable in such waters may differ according to the type of waters historically claimed.7 The UN Memorandum of 1957 8 stated broadly that historic waters were not limited to bays, but could also be applied “to straits, to the waters within archipelagoes, and generally to the various areas capable of being comprised in the maritime domain of the State”;9 and Norway asserted in the Fisheries case that historic title could apply to any waters – in fact, to “all forms of maritime territory”.10 US caselaw shows a similar pattern (see below). Despite, however, this potentially broad geographical ambit of historic claim in the maritime sphere, undoubtedly the most important application of historic claims in the past has been in respect of bays. 1.1

Reference to historic waters other than bays in US case law

Although the claim by Louisiana in US v. Louisiana was to “historic inland waters” in the context of “historic bays”, the US Supreme Court11 stated that apart from “bays”, inland coastline congurations could also include “other areas of water [apart from bays] closely connected to the shore, although they do not meet any precise geographical test”, which may have achieved the status of “inland waters” by the manner in

3 4 5

6 7 8

9 10

11

Op. cit., at pp. 224–228. See further below section 3. Jessup mentions, for example, the Zuyder Zee (The Law of Territorial Waters and Maritime Jurisdiction, (New York, Jennings, (1927) at p. 438)); namely, an inner area of a . . . closed sea because of fringes of islands which “completely enclose it save for narrow passages”, citing (id.) de Lapradelle (a sea closed by a continuous line of islands). Historic Titles in International Law (1965), at p. 299. See below section 5. Memorandum by the Secretariat of the UN, “Historic Bays” (Preparatory Document No. 1) A/CONF. 13. 1, September 30th, 1957. Id. at p. 37, para. 199. Agreed to by the UK (Reply, Pleadings of 28/11/52 at p. 643, para. 471), but with the caveat (id., at 644) that an “historic claim to open waters has to be regarded somewhat differently in point of proof ” (emphasis added). 394 US 11, at p. 23 (1969). Reference was specically made to Article 4 of the TSC (1958) (so indicating a possible ‘non-bay’ element), though this claim was ultimately to be rejected by the Supreme Court.

The Types of Waters to which Historic Claims may be Made

19

which they have been treated by the coastal nation; i.e., seemingly as historic waters. Although the US federal side had argued that the TSC recognised only “historic bays and not other kinds of inland water bodies”, the Supreme Court added, non-commitally, that it did not pass judgment on this argument, “except to note that by the terms of the Convention, historic bays need not conform to the normal geographic tests and therefore need not be true bays”.12 Most recently, in Alaska v. US (2005), the Special Master conrmed this broader geographical trend. He noted13 that the US Supreme Court had “sometimes refer[red] to historic bays as ‘historic inland waters’ or ‘historic waters’, perhaps to emphasise that they may not satisfy the geographic denition of a bay”. In the Alabama and Mississippi Boundary case (US v. Louisiana et al.) the Supreme Court adopted the Special Master’s nding that certain waters of Mississippi Sound were historic inland waters,14 in what has been one of the few clear successful cases to date on the issue of historic claim in US litigation. The precedential value there is, however, diluted by the fact that the Supreme Court appears to have concentrated unduly on the historic claim having been conceded by prior ofcial federal statements rather than looking to proof of sufcient time passing and effective exercise of requisite jurisdictional matters – in what may be cynically viewed as a domestic US assessment of historicity. Therefore, under international law, Alaska was in principle entitled in Alaska v. US (2005) to claim internal (or “inland”) waters within the Alexander Archipelago – even though these waters were denitively found (in the same litigation) not to be possessed of ‘bay-type’ qualities.15

2. Historic Bays The past benet of claiming a bay as ‘historic’ – at least before the law of the sea rules on denitions of juridical bays evolved into treaty law – was that they need not have conformed to the supposed legal requirements of the time and/or those as now contained in treaty law (Art. 10 of the LOSC, or previously Art. 7 of the TSC). The way that Art. 10(6) of the LOSC is worded – “[t]he foregoing provisions do not apply to so-called ‘historic’ bays” – may be interpreted as meaning that the objective criteria relating to so-called ‘juridical’ bays can be disregarded in their case: such as, most particularly, the ‘semi-circle test’ and the 24-mile closing line rule; but also such matters as the meaning of the “natural entrance points of a bay” (paras. (3) and (4)). For example,

12 13 14

15

Id. at p. 75, fn. 100 (emphasis added). Report, supra, at p. 6. 470 US 93, at p. 94 (1985) (“Mississippi Sound qualies as an historic bay”). See M.W. Reed, op. cit., at p. 89. See Report of the Special Master on Count 3 in the case, at p. 138 et seq. Compare with this nding a dictum in the Alabama and Mississippi Boundary Case (470 US 93, at p. 101 n. 2) (“at a minimum, Mississippi Sound resembles a juridical bay”).

20

Chapter 2

the Libyan Memorial in Tunisia/Libya16 alleged that the Tunisian baseline for the Gulf of Gabes joined islands which could in no way be regarded as natural entrance points for a juridical bay (and that the Tunisian baseline here of 46 miles was in any event illegal). Thus even the essentially geographical aspect of the denition in para. 1 may be dispensible in historic claims; i.e., the necessity for a “well-marked indentation” containing “landlocked waters” and more than a “mere curvature of the coast”. Furthermore, even para. (1) of Art. 10 of the LOSC – which says that the Article “relates only to bays the coasts of which belong to a single State” – may similarly be affected by the ‘historic’ exception. On the latter, for example, at UNCLOS III, Honduras opined17 that the traditional concept of ‘historic bays’ should be revised because it had been elaborated in response to a former need for a legal denition of bays “under the exclusive competence of a coastal State”. Similarly, in his Report in the Alaska v. US (2005) litigation, the Special Master opined18 that although “article 7(1) [of the TSC] would appear to preclude application of article 7(6)” at least one inuential source suggested that two nations in some instances “jointly may form historic waters”. It is arguable, therefore, that even the stipulations of para. (1) may be waived in the case of historic bays where such a claim predates the treaty law. 2.1

US case law

There has been some judicial discussion in US caselaw on the geographical laxity as to rules applying to historic ‘bays’ per se. For example, in the Alabama and Mississippi Boundary case the Special Master, in his Report,19 quoted previous Supreme Court precedent that he need not decide “[h]ow unlike a true bay a body of water can be and still qualify as an historic bay”; as all the indentations in that instance sufciently resembled bays. As already noted, the Supreme Court in this case20 opined that by the terms of the Convention (the TSC), historic bays need not conform to the normal geographic tests and therefore need not be true bays. 16

17

18

19

20

Pleadings, vol. I, at pp. 504/505; but see also the Reply of Libya, Pleadings, vol. 4, at p. 117, where Libya alleged that normally even when a bay is claimed as historic “it would be expected that the closing line for the bay coincides with the natural entrance points”. Strohl rightly comments (op. cit., at p. 317) that taken literally, Article 7(6) of the TSC would mean that “all provisions regarding bays would be disregarded in any consideration of historic bays” (including even the “geographical concept”). O.R., Vol. III, pp. 100–101. This was to be cited in El Salvador’s Memorial (para. 13. 9.) in the El Salvador/Honduras case. Supra n. 13, at p. 137 (relative to a late ‘change of geographical circumstances’ federal argument which may have converted the waters of the Alexander Archipelago into a ‘two-State bay’: see further below Chapter 3, section 2.). Note, however, that the UN Juridical Regime (at p. 21) states that whilst all States bordering a bay could in principle act “jointly to claim historic title to a bay”, there would be a problem as to whether all of them need to have exercised sovereignty therein during the requisite period. Report April 9, (1984) at p. 25 citing the Louisiana Boundary case (US v. Louisiana), the claim being to “historic inland waters”, but in the context of historic bays: 394 US 11, at p. 75. Supra n. 12.

The Types of Waters to which Historic Claims may be Made

21

Similarly, more recently in Alaska v. US (2005), the Special Master commented, as seen,21 on the looseness of geographical requirements relating to historic bays. 2.2

Suggested lists of historic bays

As seen in Chapter 1, the practice of listing of alleged ‘historic bays’ (or indeed “waters”) may not be a very constructive one; especially as several of the academic and UN study lists do not claim to be comprehensive.22 Such examples often rely, as seen, on the lists of others; and are in any event misleading in an intertemporal sense because they tend, even when updated, to include bays which in contemporary law fall well within the denition of juridical bays. However, even subject to these caveats, several bays get repeated mention in such lists; and some of these are now set out in Appendix 1 to this work. 2.3 Lack of denitions of “historic bays” in international treaty law The lack of denition of such bays in international treaty law has already been remarked on in Chapter 1. It is to be noted in the context of “historic bays” as such that the TSC (Article 7(6)), as essentially repeated in Article 10(6) of the LOSC (see below)) states that its “foregoing provisions” do not apply to “so-called historic bays”.23 The strangely added epithet “so-called” here seems to deliberately beg the question as to what their denition may be. The UN Juridical Regime24 nonetheless interprets such treaty law as maintaining the status ante quo (based, as it is, on customary law) regarding historic rights in this regard. Despite the fact that both the 1958 and 1982 conventions fail to dene an “historic bay”, the provisions in both treaties must mean the same; and as Westerman points out,25 both in 1958 and 1982 it is “clear from the legislative history that the drafters

21 22

23

24 25

See Report, at p. 6. See ‘A Comparative Analysis of Historic Bay Claims’ by D.W. Nixon as Technical Annexe to the Libyan Reply in Tunisia/Libya (at p. 321 of Pleadings, vol. IV), who stated that the objective of his study was to “review a representative sample of historic bay claims to illustrate the spectrum of attempts to utilize this exception to the regime of the high seas” (emphasis added). Thus it is not claimed to be “comprehensive”. The three categories of bay discussed include: those recognised as historic by international tribunals (e.g., the North Atlantic Fisheries Arbitration of 1910); bays which may have had historic title but are now juridical bays (under Art. 10 of the LOSC); and other bays or waters claimed as historic. See N. Ronzitti, ‘Is the Gulf of Taranto an Historic Bay?’, (1984) 11 Syracuse Jnl of IL & Comm. 275, at p. 284, who maintains that such mention at the very least indicates that the law of the sea accepts their existence. Supra, p. 2, at p. 12, para. 74. ‘The Juridical Status of the Gulf of Taranto: A Brief Reply’ (1984) 11 Syracuse Jnl of Intl Law & Comm., 297, at p. 304, fn. 19. Compare the UN Juridical Regime discussion (supra n. 24, at p. 12, paras. 75/6) regarding the a contrario rule: namely, that if there is no clause safeguarding historic title, the provisions of any article must prevail; and the problem of a later treaty xing denite law of the sea rules. The UK argued in the Fisheries case that if the 1930 Hague Codication Conference had crystallised maximum rules (on closing lines), “the result would

22

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considered that bays which failed to gain juridical status under the very generous requirements . . . might nonetheless be enclosed [as historic bays]”. The treaty background to this historic regime was discussed in extenso by Judge Oda26 in the El Salvador/Honduras case. He pointed out that in the TSC the historic bay was “not dened in clear terms”;27 and that there was little discussion on historic bays at the UNCLOS III proceedings; so that28 the provisions in the latter are “practically identical” to those of the TSC, except that the words “do not” have replaced “shall not”. Such a change of wording seems to have little substance attached to it. 2.3.1 Reference to such treaty law in US case law It is well-established that in US federal/state disputes, international treaty law (in the ‘fossilised’ form of the TSC) has been determinative on all issues therein.29 Thus Article 7(6) (the ‘savings clause’) of the TSC (stating that “[t]he foregoing provisions shall not apply to so-called ‘historic bays . . .”), has been specically cited in past US litigation respecting historic title in the law of the sea.30 2.3.2 Similar reference in international case law With reference to both conventions, the ICJ, as seen above31 in the Tunisia/Libya case, conrmed that it is still general international law (i.e. customary law) which governs such waters, saying that there were “references to ‘historic bays’ or ‘historic titles’ or historic reasons in a way amounting to a reservation to the rules set forth [in the LOSC]”; so that it seemed “clear that the matter continue[d] to be governed by general international law’.32 2.4

Particularised regimes under customary law

The abovementioned ICJ dictum went on to state that the general international law did not provide for “a particular regime for each of the concrete, recognised cases of ‘historic waters’ or ‘historic bays’”.33 The idea of such a ‘particularised’ regime in

26 27 28 29

30

31 32 33

have been, in the absence of a saving clause, to invalidate at once by the terms of the convention all claims in excess of the agreed maximum rules, including claims that had already gained international recognition” (emphasis in original) (UK Reply, Pleadings of 28/11/50 at p. 629, para. 454). Supra p. 2, in his Dissenting Opinion, at pp. 742–743. Id. at p. 743, para. 20. Id. at p. 744, para. 21. In US v. California, 381 US 139, at p. 165 (1965) (“the best and most workable denitions” of inland waters available). E.g., by Massachusetts in US v. Maine (Report of the Special Master (1984) at p. 68. In the Alabama and Mississippi Boundary case, the Special Master specically found Mississippi Sound to be an historic bay “within the meaning” of Article 7(6) of the TSC: see his Report (1984) at p. 10. Similarly, in ofcial US practice the TSC has been viewed as the “best evidence” concerning an alleged historic bay (see Ronzitti, supra n. 23 at p. 317). See supra p. 17. Emphasis added. Id., at pp. 73/74, para. 100 (emphasis added).

The Types of Waters to which Historic Claims may be Made

23

every such historic claim had been repeated by the ICJ in the El Salvador/Honduras case, where the Court quoted from its 1982 decision in the Tunisia/Libya case,34 namely that “[h]istoric titles must enjoy respect and be preserved as they always have been by long usage”; and stated that it was “clearly necessary” to investigate the “particular history of the Gulf of Fonseca to discover what is the ‘regime’ of the Gulf resulting therefrom”.35 Unfortunately, such judicial reference to a particularised regime for historic waters merely muddies the already unclear rules at customary law relating to historic bays, to the extent in fact of even watering down basic traditional rules on necessity of proof as to uni-national control of foreign navigation therein. Such specicity of regime featured in past suggested claims to historic waters; for example, in the US/Canadian discussions over claiming particularised historic waters in the Dixon Sound in 194336 when it was suggested that in the event of historic waters claims being made contiguous to Alaska or British Colombia, such waters would “continue to be open to the vessels, aircraft, and nationals of the two countries”. One of the best historical examples of the unique nature of the historic waters is in fact the pluristate bay of Fonseca, as found to exist there in the El Salvador/Honduras case.37 The notional inclusion of the territorial sea regime in the historic claims doctrine (see below, section 5) and more generally, as seen above, the “historic rights” doctrine38 gives additional complexity to the supposed legal regime.

3. Historic Mid-Oceanic/Coastal Archipelagic Waters 3.1

Reference in treaty law

3.1.1 Oceanic archipelagoes It is implicit in the LOSC itself that historicity of claim may be relevant to a claim to “archipelagic waters” under Part IV of the LOSC in the case of an archipelagic State inasmuch as the denition of any “archipelago” means a group of islands so closely interrelated that they – and their “waters” – form an intrinsic geographical, economic or political entity “or which have been historically regarded as such” (Article 46(b)).39

34 35

36 37 38 39

Supra, p. 9, at p. 73 (emphasis added). Supra, p. 2, at p. 589, para. 384 (emphasis added). See also id., at p. 598, para. 400 (the judgment of 1917 was viewed as a legal result where the three States “jointly inherited by succession waters which for nearly three centuries had been under the single sway of the State from which they were heirs” (emphasis added)). US Archives, 10/1/1943 (00457). See supra, p. 2. See supra, Chapter 1, section 1.2. Emphasis added. See, on this, J. Evensen, Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagoes (First UN Conference on the Law of the Sea): O.R., vol. 1 (UN Doc. A/Conf. 13/18), 289, at, e.g., p. 302, where he states that although

24

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Apart from this, it has, for example, been suggested in the past that the length of individual baselines enclosing an archipelagic entity may be justied on the basis of an “historic” waters claim, even if the baselines exceeded the envisaged maximum.40 The US judicial decision in CAB v. Island Airlines41 supports the view that historic waters may exist (subject to the relevant criteria being satised) within waters in an mid-ocean archipelagic situation, as in the case of the waters between the Hawaiian Islands where some of the distances between islands ranged from just over 7 miles to the longest of 62 miles. Here the contention was that when Hawaii was annexed by the US in 1898, because of historical claims the inter-insular channels between the islands of the former nation of Hawaii constituted historic waters. This claim was, however, here judicially rejected, basically because of lack of evidence of such;42 but there was never any rejection in that case of the idea that an historic claim may, in principle, be made to archipelagic maritime areas. 3.1.2 Coastal archipelagoes and treaty law An indication of the possibility of making some sort of historic claim relating to permissible basepoints in coastal archipelagic waters may result from a reading of Article 7(4) of the LOSC (in respect of low-tide elevations without lighthouses) where the drawing of baselines to and from such elevations has “received general international recognition” – an implicit reference to a particular straight baseline having been generally recognised as an historic claim.43 The UN Juridical Regime seems to imply that as the only references to historic title in the 1958 TSC apply to bays (Article 7) and territorial sea delimitation (Article 12)

40 41 42

43

“geographical considerations” in the case of a mid-oceanic archipelago will be of “primary importance”, other factors such as “historical and economic factors . . . may play a role” (emphasis added); also O’Connell (The International Law of the Sea, ed. Shearer, vol. 1, at p. 41) who says that, in the archipelagic claim context, the “historical argument is advanced because the legal situation respecting the extent of maritime territory is unclear”. Gidel suggested that in the case of an archipelago situated far from the mainland (what today would be described as a mid-oceanic archipelago) the territorial waters would normally be measured under the “ordinary rules” from each island except where the “theory of historic waters” applied: op. cit., at p. 718, cited by Evensen, id., at p. 295. A 10-miles distance in the opinion of Gidel, cited in Evensen, id., at p. 294. 235 F. Supp. 990 (1964). It is noteworthy that in the District Court (394 US 11 (1969), at p. 24) it was alleged (not only by the plaintiff in the case, but also “impliedly” by the State of Hawaii) that the “only way” that any “internal waters” could be measured would be by virtue of hypothetical “straight baselines running from headlands” on each side of the various channels. The Court of Appeals totally rejected (on the facts of the case) that a straight baseline could be drawn “around the western perimeter of the Hawaiian archipelago” (infra, p. 51, n. 13 at p. 743). The Special Master in US v. California (Report, October 1952, at p. 27) also implied that coastal archipelagoes may be historic waters (“[s]ubject to the special case of historical waters. . . .”). In fact there may be a semantically ne line drawn between a claim to historic internal waters themselves and to historically-claimed straight baselines, as was evident in the pleadings in the Fisheries case.

The Types of Waters to which Historic Claims may be Made

25

(this applies similarly in the LOSC), the intention must have been simply to maintain the (historic) status ante quo in these aspects alone based on an a contrario rationale, at least between parties to the convention: so that here historic title in conict with a treaty provision is “superceded as between the parties to the convention”.44 This is a narrow and unconvincing interpretation in the broader context; and indeed it is contradicted by other seemingly opposite statements in the same document:45 for example, the fact that Article 4 of the TSC (on straight baseline systems) (now Article 7 of the LOSC) does not make specic reference to such a ‘bay’-related ‘historic’ proviso (i.e. to an express ‘historic title’ exception) should not override established claims of this nature (as, e.g., concerning pre-treaty claims to areas within the Norwegian skjaergaard (see below)). For it is arguable that an internationally-recognised historic claim to such waters predating any relevant international treaty, absent any express clause to the contrary in that treaty, should, by dint of the customary doctrine of historic waters, be seen as capable of overlapping and implicitly overriding pro tanto any new treaty regime. This interpretation is implicitly reinforced by the preamble to the LOSC (1982) expressly stating that “matters not regulated [by the Convention] continue to be governed by the rules and principles of general international law”. Indeed the LOSC now exempts from compulsory judicial settlement procedures not just disputes involving “historic bays”, but also, more generally, historic “titles” (Article 298(1)(a)(i)). This latter wording, perhaps, in itself implies a broader application of contemporary law to historic waters more generally. 3.1.3 Reference to such regimes in customary law It is evident in the Fisheries case that Norway had claimed historic title not just to certain “bays” with mouths in excess of 10 miles, but also – and more signicantly – to certain waters outside these areas which were landward of the outer islands of the coastal archipelago (the ‘skjaergaard’).46 Norway was stated to have contended that minutes of discussion of the Institute of International Law in 1928 showed that an historic claim not only to bays, but also to archipelagoes, was permissible in international law; and the UK in fact agreed that “in accordance with fundamental principles of international law an exceptional claim to territorial waters in archipelagos is valid if it has received the assent of other States”.47

44

45

46 47

Supra p. 2, at pp. 12, paras 72–75, and at p. 13, para. 77. Cf. the 1977 Italian historic claim to the Gulf of Taranto, discussed by Ronzitti, supra n. 23. E.g., id., at p. 23, para. 25 regarding mention there of historic waters that may be “internal waters” in areas other than in an “historic bay”. See Reply of the UK, 28/11/50 at p. 623. Id. See also the Norwegian claim in its Counter Memorial (31/7/50 at p. 548) that it is generally agreed that the theory of historic waters also applies to straits and archipelagoes etc.; cited in the UK Reply (28/11/50) (Norway alleged that the doctrine was not conned to historic bays, but extended to all other waters capable of being included within the territory of a State). The UK accepted this, but made the sensible proviso that the “traditional doctrine” concerned bays, so that the “consent of States could more readily be inferred in the case of the enclosed waters of a bay than in other cases” (Reply, 28/11/50, at p. 677, para. 511).

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Past commentaries on historic waters tend to endorse archipelagic waters being includable as historic.48 In the UN Juridical Regime,49 it is specically stated that “historic rights” might be claimable not only in respect of “bays”, but also other maritime areas “such as the waters of archipelagos and the water area lying between an archipelago and the neighbouring mainland”. It may be noted also that there was an ‘archipelagic’ reference in the Gulf of Fonseca case in 1917, where the Central American Court of Justice, in nding unanimously that the Gulf was an “historic bay possessed of the characteristics of a closed sea”, described it – “and its Archipelago” – as a area which nature had “indented” in the “form of a gullet”.50 3.1.4 Related allegations in the Alaskan pleadings in Alaska v. US (2005) Alaska had in this recent Alaska-US litigation claimed that the “body of water” outside the 3 mile limits of the islands of the Alexander Archipelago – and lying inside the alleged ‘1903 Arbitration lines’ – constituted “historic inland waters”51 (see Map 3). Unusually, then, in this instance, a legal claim was being made not to an historic bay as such (which has constituted the bulk of past historic claims throughout the world) but to a more general concept of internal waters. It is interesting also that the Alaskan Brief 52 alleged that recognition of the “inland waters” status of the Archipelago was “entirely consistent with the [TSC]” on the basis that such a claim is permissible both under Article 4 thereof (which authorizes the use of straight baselines to enclose inland waters with a ‘fringe of islands’ like the Archipelago”) and under Article 7(6), which authorises claims to historic bays”. What this synthesising statement obscures, however, is that (as seen) in fact there is no explicit right laid down in the TSC (1958) for a State to claim historic (internal) waters in areas apart from a bay.53 3.1.5 Controversy over historic archipelagic baselines: evidence from State practice of doubts over the legality of claiming as historic ‘non-bay’ entities The possibility of claiming historic waters in archipelagic situations – despite its seeming acceptability in the law of the sea, has not been without controversy. It is noteworthy, in more recent times, that claims to coastal archipelagic waters as being internal on historic grounds – probably because of the longer baselines involved, and

48

49

50 51 52 53

See e.g., Encyclopedia of International Law, Max Planck Institute, (1995), vol. II, at p. 711 (“areas which owing to their special geographical conguration and strategic importance, were of signicance to the coastal State” “such claims [being] particularly frequent in respect of those waters adjacent to the coast (such as bays and gulfs) or lying within and around archipelagoes” (emphasis added); also Zimmerman, infra, p. 166, at p. 765, n. 13. Supra p. 2, at para. 8 (emphasis added (essentially repeated at para. 34, p. 6), citing Fitzmaurice 31 (1954) BYIL 381); as well as in respect of “straits, estuaries and other similar bodies of water”. I.e., the doctrine may be applicable to any waters which can be “included in the maritime domain of a State”. Cited by Jessup, op. cit., at pp. 400, 402. Brief in Support of Motion, at p. 7. Id., at p. 17 (emphasis added). This apart, it conates the concepts of juridical and ‘exceptional’ title: see Chapter 3.

The Types of Waters to which Historic Claims may be Made

27

Historic Waters of Alexander Archipelago Graphic depiction of closing lines drawn by the United States at the 1903 Boundary Tribunal to mark the seaward limits of the inland waters of the Archipelago. See 5 Proceedings of the Alaskan Boundary Tribunal, S. Doc. No. 162, 58th Congress, 2d Session (1903-04), Pt. I, Argument of the United States, pp. 15-16; id. Vol. 4, Pt. I, Countercase of the United States, pp. 31-32. Territorial sea (3 nautical miles) and inland waters

ALASKA

"Pockets and enclaves" more than 3 nautical miles from the shoreline of the coast and of any islands comprising the Alexander Archipelago and behind the 1903 Alaska Boundary Tribunal closing lines.

Area of Map

Haines

Territorial sea extending 3 nautical miles seaward from the United States' 1903 Alaska Boundary Tribunal closing lines and more than 3 nautical miles from any point on the mainland or any of the islands. Community or Settlement

Glacier Bay

This map is a graphic depiction only and is not intended as a legal description.

Juneau Hoonah

Sitka Kake

Petersburg Wrangell

Edna Bay

N

Hydaburg

Ketchikan Metlakatla

Map 3. The waters alleged to be historic by Alaska v. US (2005)

28

Chapter 2

greater expanse of enclosed waters as compared with bays – have met with stiff international resistance, not just in the Fisheries case (by the UK) but also more recently in the instance of the Canadian enclosure of Arctic waters by long straight baselines.54 In 1986, an EU/UK protest to Canada over these lines stated that member States could “not recognise the validity of historic title as a justication for the baselines drawn in accordance with [its] order”.55 It may be noted that US archive evidence has shown some doubts on this issue. For example, in the so-called ‘Stevenson memorandum’ of August 30, 1972,56 wherein, in

54

55

56

See Chapter 4, section 7 (“Le Acque Canadesi”) in A. Gioia, Titoli Storici e Linee di Base del Mare Territoriale, Edizioni Cedam, Padova (1990). In the Fisheries case, the UK attempted to analogise generally between bays and coastal archipelagoes for the purposes of denying internal waters status in this situation. See, for example, the UK’s assertion in its Reply that: “. . . in the case of a channel leading to inland waters, there does not appear to be any good reason why the rights of the coastal State should be more favourably regarded when the two shores are the discontinuous islands of an archipelago than when they are the continuous arms”: Pleadings, of 28/11/50 at p. 552; but see also the UK’s Reply, id., at p. 507. Cited by J.A. Roach & R.W. Smith in United States Responses to Excessive Maritime Claims (1996), at p. 121 (emphasis added). In 1985 the straight baselines were ofcially stated to dene the outer limits of “Canada’s historic waters” (H.C. Debates (Canada) at 6463 (September 10, 1985). See M. Killas, ‘The Legality of Canada’s Claims to the Waters of its Arctic Archipelago’, (1987) 19 Ottawa Law Review, 95, at p. 101. Straits may, of course, be contained in coastal archipelagoes, such as (allegedly) in the Alexander Archipelago (see Alaska v. US (2005)). In such instances, States, such as the US, have been solicitous in their attitude towards archipelagic internal waters claims by other States which impede international navigation. It was seemingly on this basis (see the Fisheries case, Pleadings, Reply by the UK on 18/10/51 at p. 400) that both the UK and US protested against Ecuador’s single-belt baseline decree around the Galapagos Islands in 1951(enclosing the entire Colon Archipelago) as being contrary to international law. Emphasis added: Alaska Ex 8, p. 36e in Alaska v. US (2005). In an analogous context, a much earlier letter from the US embassy, Ottawa (8/12/1941 (00413) – detailing a Canadian response to an historic waters proposal for Dixon Entrance – alleged that the parties were applying “to a sound the rules of international law that were only applicable to bays . . .”. The correspondent then suggested that the Legal Adviser’s Ofce in the Department of State might “send him some precedents for declaring sounds, as opposed to bays, [as]historic waters”. Similarly an eminent US maritime expert called Boggs advised in 1940 against the waters of Dixon Entrance being potential historic waters, partly because it was not a “bay”, and would thus present an adverse precedent for the US (Memorandum of 17/8/1940 (US Archive Refs. 00370 and 00381)). At the so-called ‘Juneau Hearings’ held in 1972 (infra, p. 41, at p. 21.), Alaska itself, in referring to Article 7 of the TSC (1958) regarding historic bays, admitted that this article referred “specically to bays”; and it there stated that the Alaskan areas discussed – i.e., including the Alexander Archipelago – “do not geographically possess the status of bays, but are more properly characterised as straits” (emphasis added). Despite this, Alaska then argued that “reliance on historic title [was here] valid” because of the “authoritative” UN document, the UN Juridical Regime, where para. 34 is quoted and where Alaska also there cited the alleged existing US historic claim to Long Island Sound as a “strait” (id., at p. 22).

The Types of Waters to which Historic Claims may be Made

29

the Alaskan waters context, a further theoretical question was said to arise in connection with a possible historic US claim to the waters of the Alexander Archipelago. This was that these waters could not really be considered to be an historic ‘bay’ (“since the waters are not geographically a bay” they “are thus not strictly within [Article 7(6) of the TSC]).”57

4. Historic Waters in Straits 4.1

Past claims and State practice

Even straits twice the distance of the territorial sea might, in principle at least, be claimed as historic waters, as was conceded by the UK in the Fisheries case.58 In that case, the Norwegian pleadings claimed that its “historic titles” did extend to the Indreleia (a major strait) as much as to other parts of the skjaergaard, being historically internal waters.59 The UK, however, whilst admitting that a State could, in principle, acquire an “historic title” to a strait,60 asserted that no account of the “position of straits” had been taken by Norway in imposing its long baselines. Thus past historic claims seem, in rare instances, to have included certain straits. For example, Strohl points out61 that Palk Bay which featured in the 1904 case of Pillai v. Muthupayal62 is “actually a strait” separating India and Ceylon (now Sri Lanka). In more recent times, the former Soviet Union claimed Laptev and Sannikov Straits by historic prescription (both allegedly “never used for international navigation”).63 4.1.1 Past US views in favour of historic claims to straits In the US context, past ofcial views have been expressed allowing for historic title to areas including straits in exceptional circumstances. For example, a 1951 US Department of State policy statement,64 stated that: “[i]n connection with the principles 57 58 59 60

61 62

63 64

Id., (US Archive Ref. 00415) (emphasis added). Citing Gidel, op. cit., at 736. See UK Reply, 28/11/50, at p. 561, para. 374. Pleadings (by Borquin) on 11/10/51, at p. 305. Statement of Sir Eric Beckett, Pleadings of 17/9/51, at p. 83 and of 1/10/51, at p. 143. He admitted that he saw “difculty” in the UK argument regarding so-called “legal straits” inasmuch as the UK had already admitted Norway’s title to a possible strait, the Indreleia passage, on historical grounds: Reply of 17/10/51, at p. 376. Op. cit., at p. 294. 28 Indian LR (Madras Series) 551, at p. 553. Such a case would, however, probably be explained today as simply preserving historic shing rights (i.e. preservation of chank shery beds). See Butler, op. cit., (in Bibliography) at p. 114. Secretary of State Webb’s letter of November 13, 1951 (emphasis added) (set out in Whiteman, op. cit., vol. 4, at p. 174). The US Secretary of State also supported this view historically by referring to the US position taken in 1879 regarding the Straits of Magellan (see Moore, op. cit., vol. I, at p. 664), an 1848 communication to Denmark, as well as regarding the Strait of Canso from the Gulf of St Lawrence to the Atlantic Ocean.

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applicable to bays and straits”, such a doctrine might have “application with respect to waters of bays, strait or sounds, when a State can prove by historical usage that such waters have been traditionally subjected to its exclusive authority”. It added that the US had specically reserved this right at the 1930 Codication Conference.65 That this ‘proviso’ allowed for possible historic title even where straits link open seas was afrmed in later US ofcial statements;66 and it was additionally mentioned in the 1964 US Brief in US v. California.67 The US motivation behind this proviso was seemingly brought about by its concern for the status of the waters in strait of Juan de Fuca.68 4.2 The broader problem of internal waters existing in straits: connection with inland sea Aside from the problem of historic waters, the question has more specically arisen whether a strait which merely leads to internal waters can constitute internal waters itself, particularly where the so-called ‘strait’ leads only to such waters in a sort of ‘cul de sac’69 and where the strait is less than 10 miles wide.70 The acceptance of internal 65

66

67

68

69

70

LN pub. C. 351(b.), 1930. V, at p. 107. See Alaska v. US (2005), Special Master’s Report, at pp. 72–75. In US v. California, the Special Master described the 1951 State Department’s letter as a “most authoritative document”: Report, 1952, at pp. 107/8. See, e.g., Boggs’ memorandum of 7/24/1933 (US Archive Ref. 00017) regarding the ‘A-B’ line. He mentioned then that there was little support for an historic waters claim to the Dixon Entrance (Ref. 00039); and added (Ref. 00043) that the protection of US navigation rights of access to important inland waters of S.E. Alaska, especially through the Dixon Entrance, required that the waters of Dixon Entrance and Hecate Strait be maintained as “high seas” (despite this being “probably an inland strait” to which Canada and the US might have “prescriptive title”). Hence the anxiety of the US delegation at the 1930 Conference to have it recorded that the principle of historic waters applies to straits was primarily directed to the case of the Juan de Fuca Strait. In a DOS Memorandum of 8/12/1927 (Ref. 00005) a Canadian legislator described this strait as a exception to the normal rule and “a very notable precedent” created by treaty and agreement for the extension of the usual limits of jurisdiction over waters in Dixon’s entrance. A 1846 US/Canadian treaty had originally provided for the dividing line to follow the 49th parallel to the middle of the strait between Vancouver Island and the mainland, and then down the middle; and an arbitration of 1872 conrmed that the contracting parties had intended to treat the entire waters of the strait (at its narrowest point 10 miles wide) as “territorial”; to which, it was then said, other nations could not make “reasonable objection” because the straits were not a great natural thoroughfare or channel of navigation in an international sense: see Moore. op. cit., vol. I, at pp. 732/33. At pp. 130–2; see also, e.g., the ‘Tate statement’ of 1953 (infra, n. 71) (the waters of a strait which connect two seas may be excepted by “historical usage”: cited in Whiteman, op. cit., vol. 4, at p. 217. See above n. 66 and, in the Fisheries case, the UK reference to this in Pleadings: Reply of 28/11/50 at p. 570. See, e.g., the Special Master’s Report in US v. Alaska, March 1996, at pp. 74, 75, 92, and 108. See the UK Reply in the Fisheries case, Pleadings, 28/11/50, at pp. 550, 555, 561, 566; and Pleadings, Reply by Waldock of 18/10/51, at p. 413 (“inland straits analogous to bays”). The

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31

waters status – more generally speaking – in such geographic circumstances has (since at least 1930) been said to have been the US-stated position.71 In US v. Alaska (1996), the Special Master seems rightly to have thought that the principle was ‘circular’ in meaning.72 It may be added that the principle is in any event replete with subjectivities. For example Norway seems to have admitted in the Fisheries case that in the waters of a coastal archipelago, the “maritime passages” would not all lead to “interior waters”; but described the Indreleia (literally meaning the “interior channel”) not as a “strait” but simply a very long route (1,976 kilometres) extending from the south right up to the North Cape, admitting that this all-interior “route” was used “in certain measure” by international navigation;73 whilst, the British Reply asserted the routes “also form[ed] a continuous passage to the Arctic Sea from the North Sea which [was] used by international maritime trafc”.74 In US v. Alaska (1996), the Special Master seems to have acknowledged the practical difculty of applying the ‘inland waters’ test in the case of an archipelago which has many potential entrances and exits. As he there stated, the application of a “straits leading to an inland water” scenario led to “some difculty where several straits lead to the same body of inland waters”.75 This situation also applies to the Alexander Archipelago with its several possible straits’ entrances, where the waters of the Archipelago connect high seas to the south and north, particularly so regarding the “Inside Passage” of the

71

72 73 74

75

US position in the 19th century evidenced concern in the case of the Strait of Canso off Nova Scotia in Canada (discussed at length in Moore, op. cit., vol. I, at p. 789), despite the strait’s dubious open communication to the high seas (id. at p. 789). See most recently the Special Master’s Report in Alaska v. US (2005) at pp. 72/73. See, e.g., the statement of J.B. Tate on March 3, 1953 in the US Senate (cited in Whiteman, op. cit., vol. 4, at pp. 216/7). This traditional policy was much repeated at that time. See the State Department letter to Senator Butler in 1953 (3/4/1953) (US Archive Ref. 10653); and the 1964 US Brief in US v. California (supra p. 4) – which referred directly to the observation of the Second Sub-Committee at the Hague Codication Conference in 1930 (to the effect that with “respect to a strait which is merely a channel of communication to an inland sea, . . . the [US] took the position, with which the [Sub-Committee agreed] that the rules regarding bays should apply”. Supra n. 69 at pp. 133/4. Pleadings (Borquin) on 11/10/51 at pp. 297, 300. Compare in this regard the Alexander Archipelago in Alaska v. US (2005). The UK (as seen above) accepted that some of the Norwegian channels could be claimed on historic grounds, but not clearly as historic internal waters. See Blum (op. cit., at p. 294) who, in discussing the Fisheries case, emphasises the UK reference to a continuous passage from the North Sea to the Arctic Sea through the Indreleia navigational route. Norway referred to the UK argument regarding the distinction as to “interior straits” (i.e. straits leading to interior waters and which, for that reason, are assimilated into them), and international straits (such a strait being “any geographical strait which connects two portions of the high seas”) and which were also important for international commerce (emphasis added). Report, March 1996, at pp. 130/1. See also id., at p. 140.

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alleged historic waters.76 In Alaska v. US (2005) this was found to have been used as a navigational route by US and foreign vessels, seemingly over a long period of time. 4.3

Principles of freedom of navigation militate against historic status for straits

In the Fisheries case,77 the UK emphasised the international use which was made of the allegedly-enclosed straits. For if, in principle at least, a State may claim the waters – even of a ‘territorial’ strait (i.e. one that is not more than twice the width of the adjacent territorial seas) – as historic internal waters (in spite of the provisions in the TSC of 1958 and customary international law before it)78 – it clashes, of course, with the recognised right of non-suspendible innocent passage for all foreign States where such a strait joins two parts of the high seas (or even high seas to a territorial sea under Art. 16(4) of the TSC). Art. 16(4) of the TSC forbade suspension of innocent passage in the case of “straits which are used for international navigation” between two parts of the high seas (or from high seas to territorial sea), and the LOSC has conrmed this general trend. Thus although straits may theoretically qualify as historic internal waters, in practice this is unlikely to be the case because, in the case of truly international straits at least, the past inherent navigational rights of innocent passage (or now, under the LOSC, even transit passage) will have historically ruled out any possibility of such historic title accruing to the adjacent coastal State.79 More specically, then, regarding straits, their very juridical regime may intrinsically militate against any historic claim relating thereto. The fact of use of waters for international navigation in a strait by foreign vessels will necessarily indicate, in prin-

76

77 78 79

See, e.g., US v. Alaska (1996), regarding another Alaskan strait, Stefansson Sound in the Arctic, the Special Master found (Report, at p. 140) that “it would probably have been classied as a strait ‘connect[ing] two seas having the character of high seas’ or a strait ‘which forms a passage between two parts of the high seas’and not as a body that might be inland waters under the rules for bays.” The waters of the Alexander Archipelago would likewise appear to be deep and useful for navigation like Stefansson Sound. In the 1903 Arbitration case (ABT), the US admitted that “within the political coastline” of the Alexander Archipelago there were a “great number” of “straits” and “sounds” (Proceedings, Counter-Case of the US at p. 32; and id., vol. III at p. 79). See also the British Counter-Case reference to “straits” therein (id. at p. 33; and Case of Great Britain, Proceedings, at pp. 91–92. It seems strange and anomalous that the US Brief in US v. California (supra, n. 71) implied (without supplying background factual support) that the straits in the Alexander Archipelago led only to inland seas. Here, though, the main use of this alleged ‘precedent’ was not to compare, but to differentiate, the Alaskan situation from that of the Santa Barbara Channel in California; a matter which California had raised and therefore had to be responded to. So that it seems to be overstating the case to say (as did the Alaskan Brief in that case) that the US was “defending” its position relating to Alaska. At most it was making the equivalent of an obiter dictum. See discussion by Evensen in his UN Report (supra, n. 39, at p. 301). See Blum, op. cit., at 275; and the Corfu Channel case [1949] ICJ Rep. 4, at p. 495. See, e.g., the statement of Mr Caceras (of Honduras) at UNCLOS III (cited by Goldie, supra p. 2, at p. 219) (“It has never been maintained that the entrance to the Gulf of Fonseca [an old-established historic bay] was an international strait which showed that the legal unity of all parts of the bay was generally accepted” (emphasis added)).

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ciple at least and usually also in practice, lack of relevant sovereign rights or dominion being exercised by that State to establish internal waters – making them, at most, an historic territorial sea. So in this sense the matter directly inter-relates with one of the vital requirements for proving historic title to internal (inland) waters, namely effective control of foreign navigation. Furthermore, there is the subjective difculty of determining the degree and type of navigational use of coastal waters in the historic waters context. For example, in the Australian High Court decision (involving alleged historic waters claims) of Raptis v. South Australia, Gibbs J noted that a long and wide “strait” (some 23 miles wide) was “used by vessels plying to and from points in South Australia, and by local vessels, but that it was not otherwise used as a general maritime highway”; i.e., that it was not used by “inter-state shipping”.80 For such reasons the UK emphasised more specically in the Fisheries case that where an “indentation” forms part of a strait connecting two parts of the “open sea”, then these could only be possessed as historic “territorial” not “internal waters”;81 so that Norwegian sovereignty would be limited by a right of innocent passage.82 The UK thus argued that the main ‘strait’ through the Norwegian skjaergaard, the “navigational route” (Indreleia), could not form part of Norway’s enclosed internal waters; but that it merely was part of its “territorial waters” because of the theoretical difference it would make to the amount of control which Norway had over shipping there.83 So that if Norway was to claim these waters as “internal”, the claim would have (it added somewhat confusingly) to be “founded on historic grounds and not on the general principles of international law”.84 The ICJ by-passed such problems as to a maritime ‘strait’ in this case by nding that, in effect, the Indreleia was not a strait at all, but rather a navigational route in internal waters85 (“the Court is unable to accept the view that the Indreleia, . . . has a status different from that of the other waters included in the ‘skjaergaard’”). The Court thus left open the problem as to whether a true ‘strait’ could be enclosed as internal waters, whether under general principles or under historic title.86

80 81

82 83 84

85 86

(1977) I.L.R. 32, 44. E.g., the northern entrance to Andfjord: see, e.g., the UK Reply of 28/11/50, at pp. 683 and 708. See Pleadings, (by Borquin) 11/10/ 51, at p. 291. Pleadings, vol. IV (25/9/51), at p. 30. See the UK claims (Pleadings, vol. IV (25/9/51) at pp. 291–3) and Norway (id., Counter Memorial of 31/7/50 at p. 535). Norway argued that the reason why, for example, the UK considered Varangerfjord to be historic waters but not Vestfjord (merely “territorial waters”) was that Vestfjord formed part of a channel of communication – a strait – which Varangerfjord did not. Supra p. 8, at p. 132 (emphasis added). See, e.g., comment by Evensen in his UN study (supra n. 39, at p. 301), when referring to the Fisheries case, who notes that “[i]n this connexion, . . . it must be noted that the result would probably have been a different one if the passages between the ‘skjaergaard’ had formed a strait”; Blum, op. cit., at p. 295; and Goldie, (supra p. 2, at p. 26) who suggests that the only way of reconciling this nding with the Corfu Channel case is in “terms of the Court’s ndings of the status of Norway’s historic bays” (emphasis added).

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Certainly the absence of passage of international maritime trafc has led States to justify their claims to historic waters containing narrow seaways in the past. For example, as in the (former) USSR claim to the Dmitry, Laptev and Sannikov Straits (the latter allegedly “never [being] used for international navigation”);87 and in a more general sense, academic commentators have often asserted that historic waters claims may be supported by evidence that they will have little or no adverse effect on foreign nations, particularly regarding their freedom of navigation.88 The US caselaw also tends to emphasise that the existence of international navigation routes militates against any internal waters regime in US waters.89 4.4

Past State reaction to claimed historic title to straits

Past protests have been specically aimed against alleged historic title to waters containing straits (the US in one instance stating that it was “not aware of any basis for such a claim to these waters on historic grounds even assuming that the doctrine of historic waters in international law can be applied to international straits”).90 Thus, inclusion of important navigational routes in an alleged historic claim has been a ground of foreign protest; see, for example, the Japanese protest over the USSR historic claim to Peter the Great Bay91 (“international law does not permit, at least in peace

87 88

89

90 91

Cited by Butler, op. cit., at p. 114. See, e.g., Hyde, who comments, in discussing historic waters, that such assertions of dominion “in their application are primarily local and involve little interference between foreign States generally” (op. cit., at p. 482 (emphasis added), cited by Strohl, op. cit., at p. 273). See also Blum (op. cit., at p. 270) (“one of the major considerations which permit a given bay to be turned into an historic bay is the fact that by its incorporation into the national domain of the littoral State no harm is done, or is likely to be done, to another State and that the rights of such a State are not affected thereby”); Bouchez (op. cit., at p. 301); and Strohl (op. cit., at pp. 277, 282, 279). This idea has found early isolated mention in the US caselaw; e.g., the statement of Attorney-General Randolph regarding Delaware Bay: 1 Opinions of the Attorney General, at pp. 32, 37 (1793); which was cited by Norway in its Counter-Memorial in the Fisheries case (Pleadings, 31/7/50, at p. 55) as evidence that international law does not require “positive acquiescence” for historic title; but cf. the UK Reply (of 28/11/50 at pp. 610/11) and the Alleganean case regarding Chesapeake Bay (1885) (see Moore, International Arbitrations, vol. IV, 4332 at 4339 – cited by the UK in its Reply, (Pleadings, 28/11/50 at p. 615) in the Fisheries case); and referred to by Bouchez (op. cit., at p. 234). Signicantly, almost all claimed historic bays appear not to straddle international maritime routes: see J.R.V. Prescott, The Maritime Political Boundaries of the World (London, Methuen), 1985, at p. 61. See the Special Masters’ reviews in US v. Maine (Report, October 1984, at pp. 67/68) and US v. Alaska (1996) (Report, March 1996, at pp. 132, 139/140); and in the Alabama and Mississippi Boundary case (Report, April 1984, at pp. 35/36), where the ‘straits’ factor seems to have been regarded as the ip-side of the coin of ‘vital interests’ of the claimant to historic title. Cited by Strohl, op. cit., at p. 52. See Whiteman, op. cit., vol. 4, 251 at p. 252. For the same reasons, Japan protested in 1958 against a Soviet ban on overights over the bay.

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time, interruption of shipping routes on the high seas for military purposes under any circumstances”). More recently the US objected to an expansive coastal archipelegic historic claim; namely, the Canadian straight baseline system of 1986 as applied to Arctic waters, in particular because this would affect its navigational rights in the North-West Passage (and complicate navigational rights elsewhere).92 There has, as seen, been an EU protest also regarding any historic waters in the Canadian Arctic for similar reasons.93 4.5

Conclusion as to straits and historic claims to inland/internal waters

The above discussion shows that because of the inherent freedom of navigation which lies in the concept of straits, this throws up an added difculty for a State making an historic waters claim which includes such passages as internal waters. The fact that States such as Russia have attempted to include straits within such claims, leading to international protest, shows that the requirement of international acquiescence (for historic title – see below Chapter 14) is, in any event, unlikely to be satised in such cases. Not surprisingly, therefore, some authors have gone so far as to state that waters cannot be claimed as internal where international straits are in evidence.94 By way of contrast, in the unusual circumstances of the the ‘pluristate’ (historic) bay (Gulf of Fonseca) in the El Salvador/Honduras case, the ICJ put much stress (but without mentioning straits as such) on the fact of the “practical necessity” that “the narrow waters of the Gulf [of Fonseca]” comprised “channels” used by vessels seeking access to the ports of the three riparian States, which meant that “rights of passage must be available to vessels of third States”, i.e., “necessary rights of innocent passage”95 in the Bay of Fonseca which was there conrmed to be an historic bay.

92 93 94

95

See Roach & Smith, op. cit., at p. 118. See id., at pp. 118 and 121. See, e.g., A.M. Gross, The Maritime Boundaries of States (1966), at p. 650, n. 61 (“a strait between an island or islands and the mainland may not be subjected to the exclusive control of a coastal nations, regardless of width, if the strait serves as a useful route for international navigation between two areas of the high seas”); Bouchez, op. cit., at pp. 301/2; McDougal and Burke (op. cit., at p. 444) (a strait connecting the high seas to a “territorial sea of a foreign State” may be incompatible with an historic waters regime). Blum says quite categorically that “it was never envisaged that the theory of historic waters might apply except in areas which, by reason of their conguration, are not normally used as major international routes of transit” (op. cit., at p. 298, citing Gidel (op. cit., at 625)). The 1972 ‘Stevenson Memorandum’ (Alaska Ex. 8, at pp. 41e & 42e in Alaska v. US (2005)) did endorse the idea of enclosing even “straits” in the Alexander Archipelago with a straight baseline system as internal waters; but not as historic waters. Supra p. 2, at para. 412, p. 605 (emphasis added). See also id., at para. 416, p. 607, where the ICJ referred to “the rights of innocent passage that owe their origin to the exigencies and resulting history of a three-State but relatively small bay, with its problems of navigational access” (emphasis added).

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5. Historic Territorial Seas It seems to be acceptable for States to claim (quite apart from historic internal waters) an historic territorial sea, i.e., one with limits which either exceed the (supposed) legal maximum, as in the case of the 4-mile Norwegian league which the UK accepted in the Fisheries case;96 or where an international strait is involved (see above);97 or presumably, by logical extension, where the territorial sea distance is conventional, but the baselines on which it is measured are not (e.g. the latter are historically claimed: see Alaska v. US (2005) below). This latter dependent sea area would ex hypothesi not be within straight baselines, and so would not have internal waters status per se; but it would have an attached extended parasitic historic status alongside a conventional territorial sea. Some past writers have mentioned the existence of an historic territorial sea: for example, that of Sri Lanka to the Gulf of Manaar;98 but because of the diversity of State practice in the past on the breadth of the territorial sea, it is difcult to categorise any past claims as eo nomine examples of historic territorial sea. So in relation to this maritime zone the doctrine of historic waters has not been of much practical importance. Presumably where such a claim is made, because of the particularised regimes which may arise,99 unlike in the case of an historic internal waters claims where consistent prohibition of foreign navigation must normally be proved (see Chapter 13 below), the claimant State would need only to show that the right of navigation is restricted to that of innocent passage.100 The jurisdictional features related to an historic claim of this nature will be indirectly referred to later in the context of the requisite acts of coastal State sovereignty (‘effective commensurate enforcement’) necessary to evidence historic title.101 Such ‘non-internal’ waters claims may, confusingly, be more generally referred to as part of “historic waters”102 and such a regime is implicitly referred to in Article 15 of the LOSC on delimitation of the territorial sea which refers to a possible modication of the median line where it is “necessary by reason of historic title” (see below).103 5.1 The problem in El Salvador/Honduras It may be noted that the ICJ in the El Salvador/Honduras case104 discussed the question of whether the 1917 nding by the Central American Court that the waters of the Gulf

96 97 98

99 100

101 102 103 104

Supra, p. 2. See, e.g., supra, n. 84. For example, Scovazzi (op. cit., supra p. 8, at p. 321) who maintains that States have on rare occasions claimed such historic waters. See above Chapter 1, section 2.4. See Scovazzi (op. cit., at p. 321) (“ne peuvent pas porter atteinte au droit de passage inoffensif ”). See infra, Chapter 13, section 3. See the UN Juridical Regime, at p. 23, para. 165. Infra, Chapter 4. Supra p. 2, at para. 412, p. 604.

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of Fonseca were “territorial” meant that they were “internal waters” in terms of “the modern law”. It found105 that they were indeed “internal waters”, but subject to a special regime. Thus the waters were “not territorial sea”. This nding was an unrealistic and articial description in the light of third State navigational rights (as will be seen)106 which were conrmed to co-exist with this internal waters regime. 5.2

Mention of historic territorial seas in US caselaw and practice

The concept of an historic territorial sea has found isolated mention in past US tidelands caselaw. For example, in his Report in the Alabama and Mississippi Boundary case, the Special Master said that if he was wrong in nding that Mississippi Sound qualied as historic inland waters, then it might still qualify as “historic territorial sea”.107 Some US archival evidence, however, manifests an ofcial hostility to such a concept, specically in the case of the Alexander Archipelago off Alaska. For example, an ofcial Memorandum of 1973108 regarding possible espousal of an “historic territorial sea”, noted that such a claim might not be consistent with the TSC; that it would be “relatively novel in international practice”; and that it would also be inadvisable, being based on “questionable evidence” which could adversely affect previous US policy. 5.2.1 Alaska’s pleadings in Alaska v. US (2005) and the matter of historic territorial seas In its Brief, Alaska had impliedly laid claim on the seaward side of the Alexander Archipelago to an historic territorial sea extending 3 nms, based on the 1903 Alaska Boundary Arbitration (ABT) lines (as then marked in dark blue on Exhibit 1 in contradistinction to the interior (then red-marked) “pockets and enclaves”) (see Map 3)). This was quite apart from a ‘juridical’ territorial sea in sea areas otherwise within 3 nms from any conventional low-tide mark on the outlying islands of the Archipelago. The latter areas (insofar as they extended from shoreline baselines) would not, of course, need to be based on historic title; but the former in part, at least, would need parasitic historic legality insofar as they lay outside any arcs of circles based on the shoreline baselines. It would thus seem that logically – and in a technical sense – the then-alleged Alaskan historic claim included also those waters (marked as indicated above) which could only exist as territorial sea if drawn seawards from the alleged (historic) straight baselines enclosing the Archipelago (as opposed to the insular low-tide marks). For such claims were entirely dependent on the (historically-based) inland waters claim itself.109 In fact this matter did not need to be there determined because of the ultimate judicial ndings in the case. 105 106 107

108

109

Id., at para. 412, at p. 604. See infra, Chapter 13, section 4.2.2. Report, April 1984, at p. 55, citing US v. Louisiana (394 US 11 (1969) at p. 24) (“if the sovereignty exercised was sovereignty as over the territorial sea, the area will be territorial sea”). Memorandum from Brower to McKernan (of January 16, 1973), referred to in Alaskan Exhibit 7, p. 24e in Alaska v. US (2005) (emphasis added). This is a point made by Gidel, op. cit., at p. 627 (“[f ]urthermore, the limits of the maritime territory . . . are advanced by an equivalent distance seawards, the baseline of the territorial sea coinciding with the outer limit of internal waters”).

Chapter 3

THE REGIME OF HISTORIC WATERS IN THE CASE OF BAYS/COASTAL ARCHIPELAGOES 1. The Usually-Stated Rule According to the main authorities, historically-enclosed waters are generally internal.1 As, for example, has been stated, “[g]enerally speaking, writers and publicists, as well as a majority of the arbitrations and World Court decisions on the subject, classify historic waters and historic bays” under such a characterisation, which is supposedly reected in the TSC by reading “together” Articles 5(1) and 7(6), so generally giving no right of innocent passage therein.2 This is, then, an interpretation arising directly from treaty law, borrowing from the juridical bay concept, as although the 1958 TSC did not expressly state this in the case of an historic bay, it did at least provide that waters enclosed in a “bay” shall have such (internal waters) status.3 1

2

3

It should be noted that the term “inland waters” is not used in current law of the sea legal terminology, as the appropriate phrase used both in the TSC (1958) and the LOSC (1982) is “internal waters”. However in US caselaw and legislation (most particularly in s (a)(2)(c) of the Submerged Lands Act (43 USC)), the phrase “inland waters” still persists. L.F.E. Goldie, ‘Historic Bays in International Law – An Impressionistic Overview’, (1984) 11 Syracuse Jnl. of International Law and Commerce, 211, at p. 260. D. Pharand, ‘Historic Waters in International Law with special reference to the Arctic’ (1971)

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Chapter 3

1.1 The status of historic waters as discussed in the El Salvador/Honduras case It was argued its pleadings to the case by El Salvador that as there was no single category of ‘historic bays’ or ‘historic waters’ each historic claim case depended upon its own circumstances. Accordingly it was controversially alleged that there is “no basis for saying that all waters of a historic bay are placed under the unequivocal status of internal waters”, insofar as it had been judicially opined4 that there were in the Gulf not only areas of “exclusive jurisdiction”, but also zones of “maritime inspection” as well as “areas of waters not affected by these concepts”.5 Despite the rather unique features relating to a pluristate bay in the case, the ICJ found the status of waters enclosed in a properly-proved historic bay intrinsically to have the status of internal waters. Thus the majority of judges not only found the waters of the Gulf of Fonseca to be (both historically and today) internal waters,6 but also7 that “[n]o great difculty arises about the legal position of the waters of an historic bay that constitutes an enclosed sea entirely within the territory of a single State: then the enclosed waters are simply internal waters of the coastal State”. Additionally, the Dissenting Opinion of Judge Oda emphasised in the case that “[t]he words ‘historic bay’ are certainly not meant to suggest that the legal status of the waters concerned is anything less than that of ‘internal waters’ of the coastal State, as in the case of a normal ( juridical) bay”;8 and that under contemporary law sea-waters adjacent to coasts “cannot come into any other category other than that of such internal waters or the territorial sea”, with the possible exception of the “new concept of archipelagic waters”.9 1.2 Are historic coastal archipelagic waters of the same internal status as historic bays? 1.2.1 Problems arising under the treaty regime It may seem to be academic whether the claimed historic waters are enclosed in a bay or a coastal archipelago, as the same internal regime and status would appear, prima

4 5 6 7 8 9

21 University of Toronto Law Jnl., 1, at p. 5. See also Blum, op. cit., at p. 300 (“[b]oth categories of bays are to be regarded as internal waters”). This appears to be a long-standing position. See, for example, the 1927 Memorandum preceding the 1930 Hague Codication Conference (Report to the Council of the League of Nations on Questions which Appear Ripe for International Regulation), cited by Judge Oda in the El Salvador/Honduras case: supra p. 2, at p. 739, para. 15 (even where a “greater distance” has been claimed on basis of “continuous and immemorial usage”, the waters are to be “assimilated to internal waters”). See supra, p. 15. Pleadings, Reply of El Salvador, vol. IV, p. 195, para. 6. 83. Supra, p. 2, at pp. 604/5, para. 412. Id., at p. 594, para. 395 (emphasis added). Id., at p. 734, para. 4. Id., at p. 745, n. 1 and p. 399, para. 26. He also interestingly decried the use of language in the plenary Court judgment such as “internal waters in a qualied sense” (id., at p. 747, para. 26 (emphasis added). He was clearly not including here more seaward zones such as the 200-nm exclusive economic zone.

The Regime of Historic Waters in the case of Bays/Coastal Archipelagoes

41

facie, to apply to both, except, of course, that in certain important aspects, rights of innocent passage are, in the contemporary law of the sea, preserved, in a juridical claim context at least by the express provisions of the TSC and the LOSC, where in a ‘nonbay’ context, the more expansive straight baseline system is being used. For although not evident in customary international law, in post-UNCLOS I treaty law, certain parts of the waters enclosed in a non-bay context may have rights of innocent passage preserved in them despite being otherwise ‘internal waters’ under those treaties. Despite, however, this more modern legal development, it may be argued that any pre-convention claimed historic coastal archipelagic waters are not affected by this contemporary legal veneer; so that when it comes to retrospectively assessing the effectiveness of an historic claim, i.e., exercise of sovereignty and ‘commensurate’ exercise of jurisdiction’, the comparable regime is that of a bay, wherein, of course, ipso jure no right of innocent passage exists. One recent commentator10 has pointed out that most historic claims in fact concern bays and aim to create internal waters under the same type of sovereignty as on land, in which case there exists no right of innocent passage as is now to be found in the case of some enclosed areas of seas behind straight baselines, as, for example, in Art. 5(2) of the TSC. Thus it has been argued11 that an historic claim to enclosed non-bay waters makes little or no change to the normal juridical regime attaching thereto; though this viewpoint might imply that the rules for establishing historic waters in the case of historic coastal archipelagic waters, viewed in the light of contemporary law, may be subject to a less stringent test as to jurisdictional control; namely that continuing rights of passage in specied areas will not be incompatible with their otherwise internal waters regime. This factor had possible potential relevance to the Alexander Archipelago situation in the litigation in Alaska v. US (2005),12 as the Alaskan pleadings in that case made it clear that Alaska was there claiming the alleged historic “pockets and enclaves” of the Alexander Archipelago (more than 3 miles from landfall) were as a whole internal waters (according to domestic US practice, dubbed as “inland waters”13 (see Map 3)). 1.2.1.1 The El Salvador/Honduras case There is one statement analogously relevant to this issue in the main judgment relating to the Gulf of Fonseca in the El Salvador/Honduras case, where it was stated that “the fact that the Gulf of Fonseca would today qualify geographically as a ‘bay’ cannot now

10

11

12 13

Scovazzi in Pharand, D., and Leanza, U., The Continental Shelf and Exclusive Economic Zone: Delimitation and Legal Regime, Kluwer Academic Publishers (1993), at p. 321. Id. (“Le fait que certains Etats revendiquent en tant qu’eaux interieures historiques des étendues de mer n’ayant pas le caractère de baies ne comporte aucun changement substantiel dans le regime juridique qui serait applicable aux eaux en question”). See supra p. 9. Alaska’s Brief, p. 12. See also the reference in Count 1, para. (7) in the Motion to Brief at p. 17; and similarly at the earlier ‘Juneau Hearings’, (Proceedings of the Juneau Hearing, 1972 (see bibliography) at p. 20). See also id., at p. 56, the reference to Alaska’s more general proposition at that hearing that the waters of certain Alaskan coastal areas were “in fact historic, internal waters”.

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call in question or replace its historic status”.14 This statement seems to imply that its later legitimation could not defeat its erstwhile historic status or regime.15 However this statement was expressly made in the case of a rather unique pluristate-type bay, where by denition more that one coastal State has a legal interest in the status of adjoining waters. It is noteworthy also that Judge Oda’s statement in his Dissenting Opinion16 in the case – to the effect (as seen) that the phrase “historic bay” was not meant to suggest that the legal status of the waters is anything other than that of the ‘internal waters’ of the coastal State, as in the case of a normal (juridical) bay – implies that both juridical and historic bay regimes, at least, are identical in terms of coastal State jurisdictional competences. Judge Oda, however, went on to conclude as regards the 1951 Fisheries case that “the waters [ disputed in that situation] are now enclosed as ‘internal waters’ by the new concept of of straight baselines [under the TSC and the LOSC]”, so that “their ‘historic’ background has become a superuous reference”; and he afrmed the same result concerning cited past claims to bays in the light of the 24-mile rule, likewise intimating that historic claims to ‘archipelagic waters’ by mid-ocean archipelagic States are now also “irrelevant. . . because of the agreed new concept” in respect of same.17 As the same might be said about past-enclosed coastal archipelagoes, it is arguable from such sweeping judicial dicta that there is no practical advantage in claiming waters enclosed by a straight-baseline system as “historic” when they qualify for inclusion ( juridically) as internal waters under the law of the sea as it now is. However, as will be seen, this may be disputed.18

2. Does a subsequent change of geographical or other fundamental circumstances affect the regime of waters resulting from a previously-claimed historic title? This is not a matter which has normally been relevant in international practice, but it did belatedly and bizarrely arise as a potential legal issue in Alaska v. US (2005) relating to the northern portion of the Alexander Archipelago and the unusual situation occurring in Tarr Inlet there.19 This issue was belatedly raised by the US as an additional obstacle to recognising the waters of the [Archipelago] as historic inland waters.20 As the Special Master summarised the issue:21 14 15 16 17

18 19 20 21

Supra p. 2, at para. 393 (added cryptically in brackets). See below Chapter 17. Id., at para. 4, p. 734 (emphasis added). See supra n. 8. Id., at p. 755, para. 43 (emphasis added). Cf. Oppenheim/Lauterpacht, International Law, vol. 1, at p. 631, n. 3, where it is stated that “since the introduction of the 24-mile closing line, many bays claimed as historic now are also juridical bays within the normal rules, e.g., Chesapeake and Delaware Bays and the Gulf of Fonseca” (emphasis added) (i.e., he implies that they have a dual status today). See infra Chapter 17, section 1.2.2. See Special Master’s Report, at pp. 136–7. Id., at p. 136. Id.

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43

This obstacle involves the Grand Pacic Glacier and Tarr Inlet. In 1912, the Grand Pacic Glacier retreated into Canada, bringing the waters of Tarr Inlet to the Canadian border . . . The Grand Pacic Glacier eventually advanced back over the border, but not until 1961 . . . As a result, from 1912 until 1961, the waters of the Archipelago touched the shores of both Canada and the [US].

As a result of this dramatic geographical shoreline change, the US federal side had argued:22 [T]hese facts prevent the waters of the . . . Archipelago from qualifying as historic inland waters of the [US] under article 7(6) of the Convention . . . . The [US] [thus] contends that article 7(6) cannot apply because article 7(1) . . . species that article 7 ‘relates only to bays the coasts of which belong to a single State’. [Thus] Canada and the [US] . . . cannot share historic inland waters from which they can exclude foreign vessels.

This was a somewhat curious argument to raise, as it opened up a vista of impliedly recognising a foreign neighbouring State (i.e., Canada) – rather than just a State of the Union (Alaska) – possibly claiming maritime rights (against the federal authorities) because of the subsequent advent of a new ‘coastal facade’ within the enclosed waters;and it was raised not in the context of ‘bays’ proper (Count 2) but Count 1 on “historic waters” based on alleged closing lines around a coastal archipelago; i.e., based on a broader legal concept than a juridical/historic bay simpliciter. In his Report, the Special Master said on this unique matter that he would have needed additional brieng to make any recommendation on the issue,23 Alaska having objected to not having had the opportunity to respond to this late pleading (in the US Reply Brief ) and because it was anyway an academic issue in the light of his prior decision that no historic “bay” existed at all in the Archipelago. But he did nonetheless add:24 Although article 7(1) would appear to preclude application of article 7(6), at least one inuentail source suggests that two nations in some instances jointly may form historic waters.

It is unclear, then, how this supervening juridical factor might have impinged on the status of the waters of the Alexander Archipelago – which, as a unit, seems never (despite Alaska’s amended pleadings) to have been considered as a ‘bay’ or series of bays – had they been found to be past historic waters.

22 23 24

See id. Id., at pp. 136, 7. Id., at p. 137 (citing the UN Juridical Regime at pp. 20–21).

Chapter 4

HISTORIC RIGHTS AND DELIMITATION OF MARITIME ZONES 1. The Treaty Provisions Both Art. 12 of the TSC(1958) and Art. 15 of the LOSC make reference to “historic title” as a reason for departing from the general rule for delimitation of a territorial sea between States, namely, failing agreement, a median line;but no mention is made of such a proviso in respects of either delimitation of overlapping EEZs or continental shelves (Arts 83 and 74 of the LOSC).1 The matter has, however received some discussion in the latter contexts from the ICJ. For example, in Tunisia/Libya, Tunisia pleaded it had historic rights from past sedentary shing activities. The ICJ whilst referring to the fact that the matter of Tunisia’s historic shing rights might “be relevant for the decision” in a “number of ways”,2 found it not necessary in its judgment to take the issue into account. However, in his Separate Opinion in the case, Judge Arechaga opined that, by implication, the “historic factor could be relevant to continental shelf delimitation as a ‘special circumstance’.3

1

2 3

See Y. Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation, Hart Publishing, Oxford and Portland, Oregon, 2006, p. 299. Supra, p. 4 at p. 75 para. 102. Id., at p. 123, para. 80.

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More recently in Qatar/Bahrain, the ICJ held, in relation to Bahrain’s alleged historic rights over pearling banks in an area of seabed in dispute, that even if pearling had been carried out by the nationals of one State only, this never led to the recognition of a quasi-territorial right to the shing grounds or the superjacent waters, thus rejecting the claim that this constituted a “special circumstance”.4 Likewise, in the Eritrea/ Yemen Arbitration, the tribunal found the traditional shing regime not to be relevant in drawing a delimitation line.5 1.1 The pleadings in Tunisia /Libya In its pleadings in the case, Libya had argued that the claimed Tunisian historic rights were irrelevant and that it was “impossible to postulate Tunisian shing rights affecting the continental shelf boundary prior to the establishment of the legal regime of the continental shelf ” as it had “nothing in common with the kind of historic rights on which Tunisia relie[d]”.6 In considering the relevance of “historic rights” in the context of “equitable principles” in UNCLOS III,7 Libya thus argued8 that the “location of an area of sedentary sheries and even the fact that one State rather than another may, in the past have asserted control over such sheries, has absolutely nothing to do with the physical attachment of the seabed to the adjacent landmass”; and “[w]hether the ‘historic rights’ are those of a coastal, or a non-coastal, State, such rights cannot affect in any way the facts of physical attachment or the ipso jure [continental shelf ] rights of the State arising from those facts”.9

2. Lack of Clarity on Historic Relevance The relevance of claimed historic rights to maritime delimitation of the expanded maritime zones such as the continental shelf remains somewhat unclear in the light of the above caselaw, though State practice in recent times suggests that historic rights, even if considered irrelevant to delimitation issues, may still be independently taken 4 5 6

7 8 9

[2001] ICJ Reprints, at p. 112, para. 235. See Tanaka, op. cit., at pp. 302–304. See Libya’s Counter-Memorial, paras. 151–179, Pleadings, vol. 2, pp. 208–216 on effect of ‘Historic Fishing Rights’ on maritime delimitation. It cited (id., para. 256, p. 210) François having dealt with sedentary sheries in his later Reports, but making no reference to their effect on boundaries. It went on to consider the relevance of “historic rights” to the delimitation of maritime boundaries” as reected in the practice of States (id., at p. 211, para. 159). Para. 169, at pp. 214– 6. Id., at para. 178. Id., para. 178, p. 216. Only one situation allegedly involved “historic” shing rights (rather than merely sedentary shing rights): see Professor Jennings’ Reply, Pleadings, vol. V, at p. 278, which mentioned historical exclusive shery rights, both to sedentary species and also swimming species caught by traditional devices permanently xed to the seabed. He denied (id.) that Tunisia claimed “some form of acquisition of continental shelf rights” through the exercise of its historical shery rights; but argued that these “ancient activities” evidenced the fact that there was a Tunisian natural prolongation in these parts; and (id.) that a continental

Historic Rights and Delimitation of Maritime Zones

47

into account by special agreement as to access.10 Undoubtedly, some past continental shelf delimitations have taken into account historic claims in negotiating a maritime boundary. For example, in the 1974 India/Sri Lanka continental shelf delimitation treaty, the preamble referred to ‘historical evidence’ having been taken into account, but with no mention of sedentary sheries or any suggestion they affected a modied equidistance boundary.11 Nonetheless, claimed Ceylonese pearl and chank sheries in the Gulf of Manaar and Palk Bay – the latter being regarded by the UK as an area of historic waters – may have been taken into account in this delimitation treaty12 to recognise the traditional shing rights.

10 11

12

shelf delimitation should not convert an area of ancient exclusive rights into an area of exclusive Libyan rights, citing the Ceylon pearl and chank sheries (id., at p. 211, para. 160) in the Gulf of Manaar and Palk Bay (later regarded by the UK as area of historic waters). See also the Reply of Libya (Pleadings, vol. 4, at p. 119, para. 44) relating to the Tunisian claim to the 45° boundary from Ras Ajdir on the basis of ‘historic rights’;and the response of Dupuy in oral pleading for Tunisia (vol. 4, pp. 475–79); and the oral pleading of Prof. Bowett, (Pleadings, vol. V, p. 242) who pointed out it was notable in the 1969 case that the ICJ did not even refer to shing practices as a relevant factor in continental shelf delimitation. See Tanaka, op. cit., at p. 306 for examples. Referred to by Dupuy in oral pleading for Tunisia (Pleadings, vol. 4 at p. 476) who pointed out that the “modied” equidistance line there was so used to recognise the traditional shing rights. See id., p. 211, para. 160. Other delimitation agreements mentioned, such as the Indonesia/ Australia delimitation agreement make no mention of sedentary sheries (e.g., Queensland pearl sheries (id., at para. 163); and the 1978 Australia/PNG delimitation agreement, which, even though setting up a special zone, allegedly makes no mention of ‘historic rights’ as such.

Chapter 5

PROBLEMS ON EXCEPTIONAL TITLE, ‘ANCIENT RIGHTS’ AND BURDEN OF PROOF 1. Need for Exceptional Title: Views of Commentators Most commentators accept that an historic claim to waters must be exceptional.1 Blum, in his leading work Historic Titles in International Law, repeatedly states that an historic claim must be in the nature of an ‘exceptional’ one (i.e., contrary to international law); but he also describes this “derogation” in the context of “normally applicable rules of international law”,2 so implying, perhaps, that at some historical stage such 1

2

See, e.g., Gidel, Droit international public de la mer, vol. III (1934), pp. 621–623; and the UN Juridical Regime, at p. 8, para. 45. Op. cit., supra p. 18, at p. 261 (emphasis added). See also the UK contention in the Fisheries case that historic title “goes beyond what is accepted under general customary law” (Pleadings, vol. II, at p. 303) (emphasis added); and its statement in the same case to the effect that Norway was entitled to claim as “internal waters on historic grounds” all fjords and sunds which “fall within the conception of a bay. . . whether or not the proper closing line of the indentatation is more or less than ten . . . miles long” (emphasis added). This statement tends to water down the many more categorical British assertions in that case that a historic title is based on an exceptional claim alone. See also the vagueness of Jessup’s statements

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emphasised ‘normality’ requirements (as for example for juridical bays) might not have clearly pertained. He also stressed here the rationale for the ‘derogation’ viewpoint; namely that of encroachment of rights which would “normally accrue to the entire international community”.3 Other authorities make similar descriptions.4 The ‘exceptional regime’ requirement was quite extensively discussed in the UN Juridical Regime, where it was seen to be more than a mere “academic” question.5 This was because of the “rigorous proof” necessary for such a claim (see below, section 5); and the “basis of title” having here to be “exceptionally strong”,6 most especially because it normally involves a derogation of the freedom of the high seas relative to other States.7 This UN study also saw a “connexion” between the requirement of acquiescence (discussed below in Chapter 14) and the opinion that historic title is based on an exception to the general rules of international law.8 This is because as a title to historic waters is, generally-speaking, based on one that is initially unclear or illegal, it follows that other States are not bound to accept such a claim at the appropriate time for a needed response, even if all the traditional requirements of international law for its acceptance qua historic waters are present.9 1.2

Judge Oda’s views in El Salvador/Honduras

Judge Oda appears, in his Dissenting Opinion in the El Salvador/Honduras case, to support the view that there is no ‘exceptional’ title behind an ‘historic’ claim; nor need there to be. Having doubted that there ever was an historic waters doctrine in international law, he there stated that the “legal concept” of a bay only developed “in parallel” with the ‘cannon shot’ theory as an exception to the one marine league rule, and that there would not have been a problem where the opposite headlands at the mouth of a geographical bay were less than two marine leagues apart;except that “some slightly wider distances” were proposed at that time, with the “10-mile rule” only being conrmed (but not even then being “established”) as late as 1910 in the North Atlantic Fisheries Case.10

3 4

5 6 7 8 9

10

(op. cit., at pp. 363 and 382) (such a claim “may be established over bays of great extent”). Jessup, however, as an inuential American publicist writing in 1927, seems clearly to have thought that any bay even then more than 6 miles wide would have to be claimed on historic grounds to be “territorial”. Id., at 248. E.g., in the Encyclopaedia of Public International Law, vol. II, Max Planck Institute (1995), at p. 714. Supra p. 2, at para. 40. p. 7. See also para. 42. Id., at p. 7. See Gidel, op. cit., at pp. 621–3. Supra n. 4, at p. 16, para. 106. See, e.g., Scovazzi, op. cit., supra, p. 8, at p. 326, who opines that whatever justications a claimant State gives, these have to be evaluated by other States who can then accept or reject them. Supra p. 2, at pp. 735/6, para. 8, and at p. 736, para. 9. He in fact cited (inter alia) in this context some of the earlier US claims to historic bays (Delaware and Chesapeake) where the mouths were more than 10 miles wide: id., at p. 737, para. 10. But compare his later statement (id., at p. 749, para. 30) to the effect that, regarding the Gulf of Fonseca, the three claimant

Problems on Exceptional Title, ‘Ancient Rights’ and Burden of Proof 1.3

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Consideration of the problem in US caselaw

This aspect had much relevance in Alaska v. US (2005) (see below), inasmuch as Alaska, in relying on historic waters title, in this instance impliedly acknowledged that the alleged US maritime claim may not have been legal at its inception; and that such claim may thus actually have abrogated the then-contemporary general rules of international law.11 However, with some ambivalence in its pleadings,12 Alaska also alleged there, inter alia, that “[t]he United States characterised its position [on inland water status] as being entirely in accord with international law and dictated by the geographical conguration”. Past US caselaw has seemingly paid lip service to the ‘exceptional title’ requirement.13 At times, however, the judicial attitude had seemed somewhat ambivalent on this aspect.14 The unclear interplay between juridical and exceptional claims to inland waters has been evidenced by past state-federal litigation positions under the relevant legislation, the Submerged Lands Act (hereafter ‘SLA’); for example, as in the US v. Maine (Rhode Island /NY) case15 where the Special Master described the two States’ reliance on Art. 7 of the TSC (1958) as taking “two separate and distinct approaches” to the issue of Long Island Sound, namely historic title (Art. 7(6)) and the juridical bay test (Art. 7(2) to (5)), with both seemingly being based on the same evidence. Later US caselaw did not appear to clarify the position on this. For example, in US v. Alaska (1996),16 the Special Master acknowledged that Alaska there did not “suggest

11 12 13

14

15 16

States concurred that “some exceptional rules should be applicable to the Gulf of Fonseca”. Cf. Swartztrauber, The Three Mile Limit of Territorial Seas (Naval Institute Press (1972), at p. 93), regarding the original US claim to Delaware Bay (“Randolph’s opinion was not consistent with the concept of delimitation of bays prevailing at the turn of the eighteenth century” (i.e., the 6-mile rule)). Jessup says (op. cit., p. 368) that in the North Atlantic Fisheries Arbitration, US counsel Root did “necessarily” admit that larger bodies (than six mile rule) might be claimed by prescriptive right; and that the US “was unavoidably embarrassed to some extent by its own claims to Delaware and Chesapeake Bays”. He adds (id.) that Root’s argument that there was no established principle in international law “sanctioning in general a claim to bays more than six miles wide” was believed to be “sound” (emphasis added). See generally UN Juridical Regime, at p. 7, para. 40. Brief at p. 13 (emphasis added). See, e.g., CAB v. Island Airlines (235 F. Supp., 990 at p. 1004 and F. 2d 735, at p. 741); also cited in US v. Louisiana (394 US 11, 23, n. 27 (1969) (citing UN Memorandum on Historic Bays). See the Court of Appeals in CAB v. Island Airlines (352 F 2d 735 at p. 740) (“title to ‘historic waters’ is usually based on something approaching a prescriptive right” citing, in turn, US v. California (381 US 139). See also Zimmerman, ‘The Doctrine of Historic Bays’ etc. (1986) 23 San Diego Law Review, 763, at p. 765 (“As applied today, the doctrine [of historic bays] is based upon . . . prescriptive rights . . .”). See, e.g., the Special Master in the Alabama & Mississippi Boundary case(Report, April 9 (1984), at pp. 12–18) who found that Mississippi Sound was both an juridical and historic bay under Art. 7 of the TSC: see Zimmerman, id., at p. 779, who points out (at p. 780) that the Supreme Court ignored this Special Master’s nding, particularly in connection with the ‘acquiescence’ requirement (see below Chapter 14). Report, October Term, 1983, No. 35 Original, at p. 7. October Term, 1995, No. 84 Original, Report of March, 1996, at p. 141.

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that the waters [inside the islands] achieved historic bay status”; but that it had nonetheless argued “that something less than historic bay status” might be required to “make submerged lands part of a ‘State’s recognised territory’”; and that,17 whilst Alaska was there not attempting to show that waters within the barrier islands involved in that case (concerning the Beaufort Sea) were “historic bays”, these waters were claimed as “inland” because of “a general delimitation system [seemingly of a non-historical nature] that the [US] employed at times signicant to the development of Alaska’s rights”. 1.3.1 Application in Alaska v. US (2005) Count 1 in Alaska v. US (2005) concerned a claim by Alaska to submerged lands in pockets and enclaves underlying waters between and fringing the southeastern Alaskan islands known as the Alexander Archipelago, all these areas being more than 3 nautical miles from the coast of the mainland or any individual island of the Archipelago (see Map 3). They were claimed as “historic inland waters”, as under US law, a state’s waters cannot extend beyond 3 miles under the Submerged Lands Act (SLA). It is noteworthy that in the case, the Special Master pointed out18 that the US did not claim – before the ABT decision in 1903 – “that the waters of the [Archipelago] were historic inland waters”. Instead, he said, “it simply said that they were inland waters based on a theory about drawing closing lines around islands”. As the US proposal at the 1930 Hague Codication Conference19 did not provide “new grounds for thinking that the waters should have the status of historic inland waters”, Alaska had in fact tended to rely in this case on alleged US general policy regarding coastal islands – wherein it alleged20 that the “US had adhered to a general policy that coastal islands less than ten nautical miles apart enclose inland waters”. The Special Master gave this argument short shrift, concluding that given “that the asserted ten-mile rule never existed, the policy [could] not conrm that the [US] considered the . . . Archipelago to contain inland waters”.21 When it comes to examination of the US counsel’s statements in the 1903 Arbitration (the ABT), the waters of the Archipelago would not in those days have been considered as typical bays (or even today as such), as they even included certain straits. At that time the US was disinclined to accept the more ‘Europeanised’ view of a 10-mile mouth maximum. And, of course, if the Alaskan claim could have been backdated still further to Russian times, i.e., to the 1820s treaties, any inland waters claim then in ‘non-bay’

17

18 19 20 21

Id., at p. 51. Such views seem to further obfuscate the doctrinal nature of the whole historic title process in the US context, just as Norway did (arguably) in the Fisheries case (supra, p. 2) where the Norwegian argument was that as there were, in any event, no general international rules, its claim was not exceptional or contrary to the generally applicable rules in force. Report, at p. 74 (emphasis added). Id. (emphasis added); see also his Report, at pp. 86–88. Id. at p. 86. Id. at p. 88.

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situations within the islands would have been contrary to the rudimentary rules on the law of the sea as far as third States were concerned.22 In other words, at the relevant time principally relied on by Alaska in this case, namely the beginning of the 20th century, there were no “standard”23 or “general”24 rules concerning ‘bays’ to be abrogated; and still less any rules relating to ‘non-bay’ situations; so this factor would, in fact, appear to apply even more strongly in the case of a coastal archipelagic claim independent of ‘bay’ characteristics. Indeed in 1952 in US v. California, the Special Master in his Report described the “absence from international law of any customary accepted rule or rules for xing the baseline” as “conspicuous”.25 So that despite the then recent decision of the ICJ in the Fisheries case, he found it had to be conceded that in this respect “no generally recognised rule” existed.26 Therefore he said that he had assumed that any encroachment upon the open sea greater than the ten-mile rule, would in his opinion, have to depend on “historical right”. There is no doubt that on a reading of the pleadings in the 1903 Arbitration (ABT) – on which case Alaska so strongly relied in Alaska v. US, US counsel was able to cite hardly any then-existing precedents for enclosing the “political coast line”in the case of a coastal archipelago.27 For this reason it may be opined that, for example, at the time that an alleged US ‘claim’ was made to the waters of the Alexander Archipelago in the 1903 ABT case, even if the US agents there involved did believe that they were making a ‘claim’ consistent with then international law, the content of the law was still unclear not only in the US but also elsewhere. In any event, there seemed to be lurking in the Alaskan pleadings a vestigial element from the Russian ukase in all this, which ‘claim’ was undoubtedly, at that time (i.e., 1821) clearly illegal, as, for example, the ‘Adams protest’ at the time testied;28 but in the 1903 ABT case, this (successional) aspect does not seem to have been relied on by the US in this context. It is noteworthy that in his Report in Alaska v. US (2005), the Special Master pointed out that the US did not ‘claim’ (as he found) in 1903 (i.e., at the time of the ABT) “that the waters of the [Archipelago] were historic inland waters”. Instead, he stated, “it simply said that they were inland waters based on a theory about drawing closing lines around islands”. And the proposal at the 1930 Hague Codication Conference “did not” (he found) provide “new grounds for thinking that the waters should have the status of historic inland waters”.29

22 23 24 25 26 27

28 29

See above Chapter 2. O’Connell, op. cit. infra, n. 30, at p. 421, citing Gidel. See, e.g., Strohl, op. cit., at p. 251. Report of October 1952, supra p. 24, at p. 8. Id., at p. 9. He cited here Whiteman’s Digest of International Law, vol. 4, p. 242. For example, citing the Cuba ‘precedent’ in the treatise of Hall, who was seemingly as much describing ‘mid-oceanic’ archipelagoes (see reference to “the Pacic”) as coastal ones (Pleadings, vol. VII). See below Chapter 7, section 2.3.2.3. See infra Chapter 6 section 1.2 (“extraordinary jurisdictional claim”) (emphasis added). Report at p. 74 (emphasis added).

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2. A Form of Prescription? Most writers see an historic claim as a form of prescription in international law on an analogy with the concept in private law. Rapporteur Francois at the 1958 UN Geneva Conference referred to this aspect when he said that if it were desired to go further in the TSC and state the conditions which bays must satisfy to be considered as ‘historic’, “the whole matter becomes much more complicated”, as it “raises the whole problem of acquisition by prescription”.30 In the Fisheries case, the UK seems to have treated the term ‘historic’ as interchangeable with ‘prescriptive’, when it stressed the “exceptional” nature of such a claim. However, this was tempered by the fact that Norway had attempted to downplay its straight baseline claim as being based on historic title as such (“to legalise an otherwise illegal situation”), seemingly to bypass the important normal requirement of acquiescence by other states required in the case of historic title.31 Similarly in this case, the ICJ itself seems to have had difculty in discussing the exceptional/juridical aspect to the whole Norwegian/UK argument, ultimately nding the Norwegian baseline system “not to be in derogation of current international law”.32 If prescription per se were the basis of historic waters title – which it seems not to be (see below) – it might enhance the alleged requirement of ‘exceptional title’; for as the American commentator, Hyde, has stated,33 such a right “is one that grows out of conduct which in its initial stages might have been deemed wrongful”. Hyde rightly admitted, though, that the historic bay doctrine “does not necessarily signify that the original assertion of that dominion constituted a violation of any legal obligation towards any State or the society of States”.34 Thus it may be justiably argued that an historic title need not necessarily be rooted in a claim which was clearly illegal at its inception. Perhaps for this reason several commentators have, more specically, dubbed the process of acquisition of historic title as “acquisitive” (rather than “extinctive”)

30

31 32

33

34

See Annex A in Strohl, op. cit., at p. 322 and id., at pp. 323–329; also Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: 1951–1954’, 31 BYIL at pp. 27/8; D.P. O’ Connell, The International Law of the Sea, ed. Shearer (1984), vol. 1, at pp. 426/7; also Goldie, n. 2, at pp. 223–225. Pleadings, vol. III, at pp. 461–2. Mc Dougal & Burke op. cit., at pp. 364/5. The plenary judgment of the ICJ in the Fisheries might seem to support the supposed rule as to historic waters being an exception to general rules of law on delimitation: see supra p. 2, at, for example, pp. 133/4. International Law as Chiey Interpreted by the United States (2nd ed., 1946, at p. 469) (emphasis added). Id., Hyde (id., at pp. 469/70) also referred, in respect of historic bays, both to a “prescriptive right issue which in its initial stages might have been deemed unlawful” and, (id.) to the fact that an historic bay claim “does not necessarily signify that the original assertion of that dominion constituted a violation of any legal obligation towards any State or Society of States” (emphasis added). Thus Whiteman comments (op. cit., vol. 4, at p. 233) that Hyde viewed historic bay claims as being “neither initially adverse vis-à-vis another State nor initially considered wrongful by another State” (emphasis added).

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prescription.35 This type of terminology was also very evident in the pleadings in the Tunisia/Libya case.36 2.1

Problems with prescriptive rights analogies to explain historic title

Prescriptive title in respect of acquisition of land territory usually operates on a bilateral basis between claimant States, whereas, in the maritime dimension, adverse title would seem traditionally to operate in a different way, i.e., erga omnes, as all nations have a notional interest in freedom of the high seas. Strohl is one commentator who is against any analogy with presciption for such a reason. As he points out,37 in the case of historic bays, the adverse interest is as to the res communis; and thus prescription logically has no relevance here. This aspect can be viewed as having an inter-relationship (as applies in general to various rules and sub-rules as to validation of historic waters claims) with the important rule as to international acquiescence, and the practical difculty of assessing how many – or which States’ – acquiesence (or consent) is necessary for an historic title to mature.38 Here one may get into related avenues of legitimation of legal title, like recognition of title quoad hunc under a doctrine of ‘opposibility’ rather than (necessarily) validity arising under an erga omnes regime. Analogies with the ‘persistent objector’ problem in the formation of customary international law also seem to arise here.39 Interestingly the UN Juridical Regime came out against the term ‘prescription’ being used to describe the process,40 though not on convincing grounds. This study concluded41 that there were “certain difculties” inherent in the view that historic waters are based on prescription; and it doubted whether it is even possible to distinguish within customary international law between “general international law” on the one hand, and an “exceptional” historic regime on the other. However, in the Fisheries case, Judge Alvarez (in his Separate Opinion) seems to have thought that the doctrines of prescription and historic rights were identical.42 Likewise in the pleadings from the Tunisia/Libya case, there was some ambivalence evident over the relevance of prescription in an historic claim setting.43

3. Past Lack of Clear International Rules on Relevant Maritime Claims (Bays) Until more recent times, and the advent of multilateral maritime treaties such as the LOSC, the detailed rules as, for example, to the maximum length of bay closing lines 35 36

37 38 39 40 40 42 43

UN Juridical Regime, at p. 11, para. 62. See, e.g., the Libyan Memorial in Tunisia/Libya Pleadings, vol. 1, at p. 505 (“on the basis of a prescriptive right”). Op. cit., supra p. 8, at p. 329. See infra, Chapter 14, section 3. See R. Churchill & A.V. Lowe, The Law of the Sea, 3rd ed., 1999, at p. 8. Supra p. 2, at pp. 11, 12, para. 68. Id., at. 10, para. 54. Supra p. 2, at p. 151; cited by Blum, op. cit., at p. 25. See, e.g., Dupuy in his oral pleadings for Tunisia, Pleadings, vol. 4, at p. 460.

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was disputed; and different States adopted different distances, sometimes acting inconsistently, as in past US practice, so blurring the line between what was, and what was not, legitimate then.44 For example, before a limitation on the width of bay closing lines was perceived as necessary to prevent expansive claims to internal waters, bays now regarded as historic were not easily distinguished from other bays as in the ruling of the Arbitration Tribunal in 1910 in the North Atlantic Fisheries case45 to the effect that there was no principle then limiting jurisdiction over bays with mouths of any particular width. As Strohl rightly points out,46 it appears that the term ‘historic bay’ “only crept in after the mathematical criteria for delimiting the internal waters of a bay came into general usage”. And as this arguably did not happen clearly until well into the twentieth century (the advent of law of the sea treaties), it may be said that such mathematical criteria were unclear during the most formative period of the development of the doctrine of historic waters. Even Bouchez – who seems generally to require an exceptional situation for historic title to arise – seems to admit that in a particular case there may have been “no objective standards” by which to gauge legality of bay claims.47 In the early British case regarding Conception Bay (Direct US Cable Co. v. AngloAmerican Telegraph Co., 1877) the Judicial Committee of the Privy Council described this bay as being “by prescription part of the territory of Great Britain”.48 The Court there stated regarding this Bay (which is not more than 20 miles at its widest, but more than 15 miles wide on average): “It does not appear. . . that jurists and text book writers are agreed what are the rules as to dimensions and conguration, which, apart from other considerations, would lead to the conclusion that a bay is or is not [territorial]” and that this had never been the subject of “any judicial determination”. Clearly, then,

44

45

46 47 48

See G.S. Westerman, The Juridical Bay, Clarendon Press, 1987, at pp. 28, 29, who cites uncertainty on the maximum width of bays and the trend towards maximum widths as leading to the concept of historic bays. Cf. the opinion of Gidel (Le droit international public de la mer, vol. III p. 537) (and referred to by UK in the Fisheries case, – Reply of 28/11/50, p. 607, para. 432) that the fact that the doctrine of historic bays had been universally accepted implied that a peremptory general rule existed on the matter of bays; and, e.g., Pharand, supra p. 39, at p. 3, referring to Norwegian pleading in the Fisheries case, that as there was no denite rule of international law regarding limiting width of bay to 10 miles, the concept of historic bays “could no longer be considered an exception”. However it should be noted that even in this case Norway seemingly claimed “historic waters” title as a fall-back position: see e.g., its Counter-Memorial of 31/7/50, at p. 547. S.Doc.No. 370, 61st Cong., 3d Sess., vol. 1, Award of the Tribunal, 64, 94. Bouchez, op. cit., at p. 208, notes that the Permanent Court of Arbitration in 1910 stated that “a claim to territorial sovereignty does not need the evidence of a historic title in all cases, where the distance inter fauces terrarum exceeds 6 miles”; but still the Court then tried to divide bays into two categories – those with entrances under 10 miles and historic bays. Op. cit., at p. 252 (emphasis added). Op. cit., at p. 248. (1877) L.R. 2 A.C. 394 (emphasis added); cited by Strohl, op. cit., at p. 279. It was not found to be necessary to lay down a rule here as Britain had long exercised dominion over the bay; and its claim “had been acquiesced in by other nations”.

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at the end of the 19th century a leading municipal law case on historic bays did not perceive, in the very nature of things, any ‘exceptional’ requirement for such title. The UK Reply in the Fisheries case49 seems to have admitted this, in giving a later British view on the 1877 case when it asserted that the Privy Council regarded the “historic title as a distinct ground for justifying Great Britain’s claim whether or not it was valid in international law”. 3.1. The North Atlantic Fisheries Case Dr Drago, in his dissent in the North Atlantic Fisheries case, paradoxically stated at that time that “historic bays” formed a “class distinct and apart”, whereas, in the case of “the common, ordinary bays” where “no special claim or assertion of sovereignty has been made”, there did not seem to be “any general principle than the one resulting from the custom and usage of each individual nation”.50 He, therefore, plainly saw no generality of rules on bays, but still acknowledged a doctrine based on historic title in such an instance. In the same case, the tribunal stated that historic bay claims should be valid “in the absence of any principle of international law on the subject . . .”.51 McDougal & Burke comment on this that “[a]pparently, the Tribunal approved of the suggestion that historical grounds provided adequate basis for recognition of a claim to a bay, even as it held that there was no general principle limiting the extent of internal waters in bays”.52 3.2. The relevant views in the UN Juridical Regime The study seemed to conclude53 that because of the past uncertainty of the general rules (e.g., relating to bays), it was unwise to stress the “exceptional” aspect as this implies the existence of denite rules in each case.54 However, this viewpoint is watered down by the inconsistent later statement to the effect55 that “title to ‘historic waters’ has its origin in an illegal situation which [is] subsequently validated”.

49

50

51 52 53 54 55

Pleadings, 28/11/1950 at pp. 613/4, para. 449 (original emphasis). The same view is evident in US practice, as has been seen above. In the Fisheries case, Norway maintained that Britain (allegedly) “clearly” had rejected any international rule that “the precise limits within which international law regards bays as territorial” had ever been determined (Counter-Memorial, 31/7/1950, at p. 431). Cited in Jessup, The Law of Territorial Waters and Maritime Jurisdiction, Jennings, New York, 1927, at p. 379. Vol. 1, Proceedings, at p. 97 (emphasis added). Op. cit., at p. 362 (emphasis added). See also Jessup, op. cit., at p. 376. Supra n. 40, at paras. 58/9. Id., at p. 11, para. 60. Id., at p. 16, para. 106 (emphasis added). See also id., at p. 7 (“In the course of time there occurred quite a number of cases in which a State asserted its sovereignty, based on historic rights, over certain maritime areas, whether or not according to general international law rules such areas might be outside its maritime domain” (emphasis added)).

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Whilst agreeing that most authors consider the regime of historic waters to be an exception to the general rules,56 the study cites Borquin who concluded that as there was no general rule on the xed limitation of the mouth of a bay, the regime of historic waters was not based on a “deviation from general rules of international law”.57 In noting that there are “certain difculties” inherent in the view of an exception to the “general rules”,58 the study seems, for the most part at least, to downgrade the ‘exceptional title’ requirement in pointing out the diversity of past maritime practice; and states that it is arguable that it is ‘uncertainty’ of past general rules of international law which forms the “factual basis” of the historic waters doctrine.59 3.3. Views in the Fisheries case Norway, in the Fisheries case, cited Judge Drago’s dissent in the North Atlantic Fisheries case (1910), and his statement (set out above) that for bays other than historic ones there did not appear to be any general principle to apply in which matter (allegedly) the rest of the Tribunal concurred.60 Norway also alleged61 that at the time of its most relevant decree (i.e., 1935), it was difcult to say that bays called “historic” had a regime clearly separate from that of “ordinary” bays; and it cited Jessup here62 to the effect that it is impossible to “lay down a general rule by which one may determine in all cases whether a particular. . . bay or other body of water which forms an indentation of the coast is to be considered in whole or in part a portion of the territory of the State”.63 3.4.

Does the same ‘exceptional’ principle apply to waters in coastal archipelagoes?

A similar situation would appear to apply to the waters of coastal archipelagoes64 (as were involved in Alaska v. US (2005)), quite independently of any rules relating to bays;in which situation, before the advent of the Fisheries case in the 1950s, there was no clear authorisation in international law for coastal States to ‘box in’ such formations.65

56 57 58 59 60

61 62 63 64

65

Id., at p. 8, para. 45. Id., at p. 9, paras. 49 and 51. Id., at p. 10, para. 54. See id., at paras. 57 and 61, p. 11. Pleadings, Counter-Memorial of 31:7:1950, at p. 437 (“Pour lui, il n’existe aucune regle uniforme de droit international regissant les baies”). Norway cited US authority for its stance; namely, “the American expert”, M.S. Boggs (“Delimitation of the Territorial Sea” in (1930) A.J.I.L. at p. 549)), to the effect that “[t]here is as yet. . . no established rule by which to determine what bodies of water have the character of a bay” (id., at p. 423). Counter-Memorial, id., at p. 448. Op. cit., supra n. 2, at p. 355. Supra n. 50, at p. 449. See also the UK Reply of 28 /11/50 at pp. 495/6. See, e.g., Strohl, op. cit., at p. 283, who concludes that “exceptions” on historic grounds should “not necessarily be thought of as conned to bays whose openings happen to exceed in breadth the agreed upon maximum”. See the Report of Special Master Davis (October 1952) in US v. California, at pp. 8 & 13.

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However here there is little international precedent on this ‘non-bay’ type of historic claim. For example, in the Australian case of Raptis v. South Australia concerning a coastal archipelago, it was stated by Jacobs J. in the Australian High Court (in a case where Article 4 of the TSC was in issue as well as possible historic waters status) that “[s]ome of the factors” relating to historic bays (such as, for example, “economic importance and vital interest”) were also “relevant” to the application of Article 4 (of the TSC); and that, on “one view” (viz., that the regime of historic bays is an exception to the general rules), “if the waters come within Article 4 and are enclosed by straight baselines, they are not historic . . .”. However, in the instant case, he found the “applicability of [Art. 4 of the TSC made] it unnecessary to decide whether the waters [were] historic bays”.66 The implication of such a statement is that it is essentially an academic matter – looking at the situation in contemporary times at least (i.e., post 1958) – whether a claim to coastal archipelagic waters as internal is based on juridical principles or exceptional (i.e., historic title) principles. In other words, there may be an ‘interchangeability’ scenario relating to the two regimes which are (because of past uncertainty in the law of the sea) not mutually exclusive.67 This could have been relevant in Alaska v. US (2005) regarding any later (i.e., post-1903)Alaskan claim on juridical/historic grounds to the waters of the Alexander Archipelago. In the case of a possibly analogous situation in Europe – the Italian claim to the Gulf of Taranto in the twentieth century (see Map 4) – Ronzitti has commented that he does not attach much importance to the argument that Italy, having initially claimed the Gulf as historic, could be excluded “implicitly” from later relying on a juridical claim – here under Article 4 of the TSC.68 3.5

Conclusion on the alleged ‘exceptional title’ requirement

If there was, at the relevant formative period of alleged historic title, no clear international rule on the issue in question, it seems to follow logically and inevitably that there can have been no ‘exception’ to it.69 Obviously, however, there are some past historic

66

67

68

69

(1977) ILR 32, at p. 73. In US v. Louisiana (394 US 11, at p. 23 (1969)), the Supreme Court articulated, as seen, the vaguer denition of “historic inland waters” (apart from bays), namely areas of water “closely connected with the shore”. Such areas, while they do not satisfy a “precise geographical test” may still have achieved the status of inland waters by the manner in which they have been “treated by the coastal nation”. See Scovazzi et al., Atlas of Straight Baselines, at p. 10, who points out that Australia enclosed three once-called historic bays (Shark Bay, St. Vincent Gulf, and Spencer Gulf ) behind its general straight baseline system of 1983. ‘New Criticism on the Gulf of Taranto Closing Line: A Restatement of a Different View’ (1985) 12 Syracuse Jnl of Intl Law and Comm., 465, at p. 468. As he continues, “[i]t is not unimaginable that an act of will exerts an effect under a rule different from that chosen [initially] by the sovereign as the one most proper for yielding legal consequences, provided, obviously, that these are in keeping with the State’s will”. He cites the Tunisian claim to the Gulf of Gabes as a precedent for this (id., at p. 469). It is noteworthy, as seen, that the legal uncertainty persisted even in the earlier part of the 20th century over the permissible maximum mouth distance of bays. As Jessup laments, even in the

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claims, for example, to waters which because of their exaggerated geographical extent, in no sense of the word – either in centuries past or today – could possibly constitute juridical bays and which postdate any separable claim based on “ancient rights” (see below). The possible Canadian historic claim to Hudson Bay would be a good example.70 An even better example, perhaps, was the extensive decree (‘ukase’) – examined in greater detail in the next chapter – of Czar Alexander in 1821, laying claim to a 100 mile ‘no-go area’ on the high seas.71 An alternative way of looking at this matter might be to deny the need for a doctrine of historic bay claims altogether because of the alleged lack of clarity of the legal rules

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1920s, it was not possible to “lay down a general rule” on bays; that the “abandonment of any mileage measure [was] notable”; and that “the status of any particular bay more than six miles wide [rested] upon the success with which the littoral state has succeeded in pressing its claims to entire jurisdiction over that body of water” (op. cit., at pp. 355, 475 (emphasis added)). The same uncertainty affected the very rules as to historic bays themselves. As Bouchez explains, at the Hague Codication Conference in 1930 there was “no agreement concerning the admissibility of historic bays in international law as an exception to the general rule for bays” (op. cit., at p. 205). To look at the matter in slightly different terms, it may be argued that at the formative period for historic bays (i.e., within the last two hundred years), it was common ground that the principle of historic bays did not have to be involved in all those cases where the width of the entrance to the bay was less than six miles; for, as Jessup says, no “established rule of law” formerly existed as to bays, “except to the effect that bays no more than six miles wide [were] deemed territorial waters” (op. cit., at p. 382 (emphasis added)). In other words, in the more distant past, any bay with a mouth over six miles wide could seemingly, as a failsafe device, most prudently be claimed as ‘historic’ rather than simply ‘juridical’. The UK seems to have to made this very point in the Fisheries case: namely that the US in the abovementioned instance of its claim to Chesapeake Bay was entitled, in effect, to ‘hedge its bets’: and that there were grounds for holding the bay “to be internal waters of the [US] on the basis of the general rules of international law, but if this was doubtful then it could be so claimed on historic grounds” (Reply, of 28/11/50 at p. 615, para. 441); see also its similar statements relating to certain Norwegian fjords. The position would, of course, be different in the (rare) case of an alleged claim (concerning a bay with a mouth in excess of 24 miles) made in the period after settlement of the ‘bay-mouth’ rules by treaty in 1958. Even after the 1910 North Atlantic Fisheries case, Jessup himself has stated that there was “no denite rule of international law regarding those bays which are to be territorial and those which are not . . .” (op. cit., at p. 382); and if historic title in this instance is essentially based on a process analogous to prescription (see above), even in the latter instance illegality of original title is not always in evidence, the gist of title here being as Hall says (International Law, Oxford, (1880) at p. 100) that “no original source of proprietary right can be shown to exist”, i.e., in essence where the origin of the claimed title is unclear. It appears from the Alabama and Mississippi Boundary case (470 US 93 (1985)) that the Supreme Court, in this isolated instance, did in fact conrm the existence of historic waters in the Mississippi Sound which arguably were based on juridical principles even at the time of their creation and development. See below, p. 196, n. 155. But cf. Alaska’s expert witness in Alaska v. US (2005), Professor Charney, Report, at p. 17 (“Russia’s exclusion of foreign vessels [in the 100 m zone] was exceptional but not necessarily in violation of international law at the time”; and “the rules for closing water bodies along a state’s coast were [then] unsettled”).

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generally on such historic claims. This essentially ‘geographic’ view, however, effectively destroys any doctrine of historic claim eo nomine and runs counter to past actual practice; as, for example, it would collectively take in exaggerated claims which could never, even in contemporary law, be considered to be juridically tenable. In general, the position is, as Bouchez rightly states, that a “particular geographic situation can never of [sic] its own justify claims contrary to the law of the sea”,72 though some past domestic caselaw (e.g., in the US and Australia) seems to have ignored this principle in nding examples of historic bays.73 3.6 Does the doctrinal lack of clarity over a possible ‘exceptional title requirement’ have any practical repercussions? There is, perhaps, only one practical repercussion arising from a situation where the original claim was not obviously illegal but merely of dubious or of unclear validity. This is when it comes to assessing the alleged requirement of acquiescence by other States for historic title. For in such an unclear case, it may be more likely that objections to such claim may be non-existent or at least fewer, for the reason that other States did not directly perceive – at the relevant time – any obvious reason for making protests to prevent an incipient historic title from arising. As Bouchez says,74 nations must be in a position to “raise objections”; and he indicates that whilst, if a State is acting in accordance with international law, the “reaction of other States will not be of great importance”, if, on the other hand, it is acting not in accordance with same, the attitude of other States will be of “great signicance”.75 The fact, then, that acquiescence is a vital requirement for establishing an historic claim (but not a juridical claim) is complemented by the fact that that in the case of an ostensibly lawful (and modest) claim (e.g., in the past to a bay with a mouth of less than 6 miles), protests would be less likely to issue from other States. This aspect obviously had practical importance in respect of the alleged Alaskan ‘claim’ post-1903 to the waters of the Alexander Archipelago in Alaska v. US (2005); and raises issues of more specic individual inter-State opposability.76 The ‘exceptional title’ factor tends to imply that other States should not only know that a particular claim to internal waters exists in the rst instance, but also that this claim was then in nature possibly contrary to international law. This point was picked up early in the US tidelands caselaw.77 This was also of relevance in Alaska v. US

72 73

74 75 76 77

Op. cit., at p. 297 (emphasis added). Cf. the “vital interests” aspect infra, Chapter 15. One may compare the British explanation (in the Fisheries case) of the older US historic bay instances, such as The Alleganean incident concerning Chesapeake Bay where the UK admitted that US Court had used other arguments to that of “usage” such as geographical, security etc., and commented how could it be otherwise in 1885 when the general rules of international law governing the breadth of opening of an ordinary bay were “not yet clearly dened”. Op. cit., at p. 265. Id., at pp. 238/9. See infra, Chapter 18, section 3. Namely by the Special Master in US v. California, see Report, October 1952, at p. 35. He pointed out that the alleged Californian State enforcement aspects were not “exclusive”, as in “these circumstances [i.e., not obviously illegal], absence of foreign objection could not be

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(2005), where objections to the alleged Alaskan ‘claim’78 in the waters had been markedly absent at and since the time that the ‘claim’ was in essence allegedly made (i.e., 1903); and conversely, actual approval (or even clear acquiescence) had been similarly non-existent.79 More generally, as indicated above, unlike in the case of juridical claims, claims to historic waters must be justied on the basis of international acquiescence.80 As the UK aptly stated in the Fisheries case:81

78 79

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regarded as acquiescence” (citing Whiteman, op. cit., vol. 4 at p. 245). See, in a more limited way, the Special Master’s statement in US v. Maine (US v. State of Maine et al., (Massachusetts Boundary Case), Report of October Term, 1984, No. 35 Original, at pp. 18/19) regarding alleged federal application of the 1972 COLREGS to the State-claimed inland historic waters, which seems to evidence a stress on exceptional exercises of jurisdiction. For he there stated that: “[t]he failure of any foreign government to object to the classication of [the] two sounds as internal waters indicates that no country aware of the line considered it to be in violation of international law” (emphasis added). This statement in a domestic context may be seen to be more generally hinting at a possibly unclear line between legal and ‘exceptional’ claims. Cf. M.W. Reed, op. cit., supra p. 2 at p. 333, who states (after reviewing US caselaw): “[a] consistent juridical policy by the [US] that would have treated waters as inland, will support a historic water claim, but only if it is supplemented by independent evidence of a claim to the water body at issue”, the “10-mile rule” being (in his view) no such “policy” (id.) (emphasis added); he also (id., at p. 331), states that in the Alabama and Mississippi Boundary case, the “juridical position [on bays/inland waters] seemed to play an important role as the [Supreme Court] dealt with the question of foreign acquiescence and [Mississippi] Sound was ruled ‘inland’ ” (emphasis added), but here seemingly only in response to the federal objection that “juridical principles” were not sufciently specic to support historic waters claims. The Special Master there found that the US had employed a 10-mile closing line from 1950 (and previously in 1903) (Report of April 9, 1984, at p. 52). Shalowitz (vol. 1 Shore and Sea Boundaries (1962) at p. 58) interprets the Special Master’s assumption even in the 1950s in US v. California as being based on an historical right being necessary in respect of any bay greater than 10 miles across its mouth. See below Chapter 14 See id. This aspect had particular relevance there to the alleged ofcial US ‘reiteration’ of the alleged 1903 ‘claim’ in the 1964 US Brief in US v. California, wherein (see below p. 125, section 1.4.2) the US citation seemed possibly to raise, at most, issues of a juridical ‘claim’ to the Alexander Archipelago’s waters and therefore not likely to put other nations on notice for possible protest. See below Chapter 14. A related point was taken up in the Fisheries case by Sir Frank Soskice for the UK (Statement of 28/11/51) when he said the UK was prepared to concede in principle that if in a certain period in history States enjoyed “wide rights”, but at a later date these rules changed, “a State which possessed [such] extended rights and then declined to acquiesce in a change in international law, restricting such rights, would not or might not lose its original extended rights”. However, he added that if the dissenting practice of the State was not known to others when the law changed, it would then have to rely on historic title in the true sense (whereas in the former situation no international acquiescence would be necessary). This was, of course, not the historical situation in the case of the alleged historic claim by Alaska in Alaska v. US (2005), which, even in the days of Russian occupation in the early 1820s, did not go back to the days of mare clausum. Pleadings, Reply of 28/11/50, at p. 622, para. 447 (emphasis added).

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Chapter 5 If a territorial claim to a bay does not exceed that [which] is admitted by generally recognised rules of customary law, there is no need to establish the acquiescence of other States because this is conclusively presumed from the general rule. The test of the application of the theory of historic waters is thus simply whether resort is made to the historic element because it is not considered, or it is uncertain, that the particular claim in issue was covered by the generally recognised rules.

3.7 Inter-temporal aspects and the ‘exceptional title’ problem: is there any jurisdictional advantage in claiming historic title rather than rights under the contemporary treaty-based rules? Just as the ‘exceptional title’ argument may have little in the way of repercussions for acquisition of historic title, so also it is doubtful whether the ‘historic’ factor (even if truly based on ‘exceptional’ title) affects in any practical way the status of internal waters today in terms of the jurisdictional powers therein of the coastal State compared with those which would in any event arise under a juridical claim, such as, most particularly, a right of denial of innocent passage to foreign ships. This would certainly be the situation in the case of claims to (juridical) bays, where even under contemporary law their enclosed waters are internal and not subject to any right of innocent passage (see Art. 8(2) of the LOSC). However in the case of a claim to non-bay waters on historic grounds, e.g., in the case of a coastal archipelago, there might be some practical value in persisting in (or even retrospectively attempting articulation of ) an historic claim even where contemporary law of the sea (Articles 4 of the TSC and 7 of the LOSC) would legitimise them as enclosed internal waters anyway. This is because such latter internal waters have now a modied regime, as compared with bay waters, if they were formerly areas of the high seas or territorial seas.82 For a right of innocent passage here still pertains (Art. 5 of the TSC and Art. 8 of the LOSC); whereas under an historic regime – according to which rights may be dependent on the type of claim and its particularised regime,83 there would be no automatic right of such innocent passage, even in contemporary law, in such areas if the historic internal waters claim has been validly made and retained. For such reasons, as seen above in section 3.4, it may be of practical importance to an ‘historic’ claimant to persist in reliance on the historic claim rather than to revert to a possible juridical claim. It may be noted, though, that in the Fisheries case the UK admitted that the waters of some (but not all) Norwegian fjords, such as Vestfjord, were “historic territorial waters” rather than “internal” waters, even though apparently enclosed by a straight baseline system, implying that rights of innocent passage could still pertain is such areas despite the historic element.84

82 83

84

See above, Chapter 3, section 1.2. See the statement from the Tunisia/Libya case (supra p. 4, at pp. 73/4); also the UN Juridical Regime (at p. 13), to the effect that the scope of historic title emerging from the continued use of authority should not be wider in scope that the scope of the sovereignty actually exercised. Pleadings, Reply of 28/11/50, at p. 718 (emphasis added).

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4. “Ancient” Rights/Title Somewhat inter-related with the matter of prescription,85 the particular ‘sub-doctrine’ of so-called “ancient title” or “ancient rights” further obfuscates the supposed ‘exceptional title’ rule, and seems to have led a minority of commentators, such as Baldoni,86 to deny that historic title is based on an exceptional basis because of the existence of such an idea; or to view even the general historic waters doctrine itself as being based on ‘ancient title’.87 The basis to this principle is that ‘historic title’ in a general sense may take in claims which are so ancient that they predate the post-Grotian period when freedom of the seas developed – a process sometimes known as constituting “immemorial possession”;88 in which case, in an intertemporal law perspective, the initial claim cannot be properly viewed as having ever been illegal; for example, as a past infringement of the high seas freedoms.89 Indeed Bouchez makes the further point that use of the term “immemorial possession” in connection with historic title “seems to indicate that claims to historic bays could only be justied if the sovereignty over the water area is a survival from the time when freedom of the seas was still limited ”.90 4.1 The meaning of ‘ancient’ The very epithet in the wording of the concept (‘ancient’) implies a very longstanding maritime claim, similar perhaps to that claimed by Norway in the Fisheries case, going back to the classical pre-Grotian era. Indeed in that case one Norwegian explanation of its internal waters claim was as a survival of claims from the days of mare clausum; so that in later times the claim was “simply the consolidation of shrunken rights which

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Goldie, referring especially to an ‘ancient rights’ type of claim, alleges that “it seems feasible to observe that historic bays stem from a number of separate theories of law” (emphasis added): (1984) 11 Syracuse Jnl of Intl Law & Comm., 211, at p. 225. He argues such status is “normal because it derives from a fundamental principle of the law of nations”: see ‘Les navires de guerre dans les eaux territoriales etrangeres’, Academy of International Law, Recueil des Cours, 1938, vol. III, at pp. 221–223; cited in the Memorandum of the UN Secretariat on Historic Bays (supra p. 11, at para. 196). Interestingly Baldoni includes in such bays the US ones of Chesapeake and Delaware (id.). For example, G.B. Pallieri in his Diritto Internazionale Publico, 7th ed. (revised) (1956), at pp. 377–378 (they “must be considered as a last and somewhat pale remnant of the ancient claim to sovereignty over the high seas”). See, e.g., UN Juridical Regime, p. 11, para. 63; and M.W. Reed, (op. cit., at p. 96) (“closely related doctrine of ‘ancient title’”). He lists (id., at p. 324, fn. 360) the California, Louisiana, Alaska, Florida, Massachusetts, Rhode Island and Alabama cases as all involving historic inland waters claims per se, but treats the Massachusetts claim as also involving the “closely related claim” of “ancient title”. A US Memorandum (see Al. Ex 8 p. 34e in Alaska v. US (2005)) in the 1970s refers not only to “historically-established practice” but also an “internationally-recognised historic claim” (emphasis added). See id., at p. 12, paras. 70/1. Op. cit., at p. 255 (emphasis added).

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had been maintained over the centuries”.91 However, it was there argued by the UK that the Norwegian Rescript of 1812 (allegedly dening its claims in the “modern mare liberum period”) did not constitute an historic and relevant claim to sovereignty over certain waters.92 In Tunisia/Libya, a similar point was made by Tunisia in its pleadings to justify its historic maritime claims, namely that they arose at a time when the law of the sea zones known today did not exist.93 4.2

The possible practical value of reliance on ‘ancient title’

The possible advantage to a claimant State relying on this doctrine is that such title should be easier to prove than historic title strictu sensu as has been evident in US caselaw. For example, the Special Master in US v. Maine (the Massachusetts Boundary case) pointed out that a “State making an ancient title claim. . . need not prove all the elements necessary to establish historic title”.94 In the same Massachusetts Boundary case, Special Master Hoffman referred95 to the Massachusetts’ argument there that its claims to the two sounds rested on “two independent and alternative bases”, namely, “historic title” and “ancient title”, the rst being described as being “essentially prescriptive” in nature, and the second as “not prescriptive”, so that a State making such a claim need not (as seen) prove all the elements necessary to prove historic title, merely96 “[e]ffective occupation from a time prior to the victory of the doctrine of freedom of the seas”. 91

92 93

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See Goldie, supra p. 2, at p. 224. He also includes in this same category (id.) Manaar and Palk Bay between India and Ceylon. Respecting Palk Bay see also Strohl, op. cit., at p. 326, who interprets this claim being decided “entirely” on the basis of “immemorial possession”. Norway in the Fisheries case was alleged to have relied in part on its claim to waters in the “long past days of mare clausum” (UK Reply, of 28 /11/ 50, at p. 665, para. 497). The UK claimed (id.) that this aspect was “advanced in the vaguest possible way and largely ignore[d] the drastic reduction of Norway’s territory in the eighteenth century under the impact of the freedom of the seas . . .”; and that what “has long been abandoned as contrary to international law has long had no legal value whatever” (id. at p. 667). Pleadings, UK Reply of 28/11/50, at p. 679, para. 511. See the Tunisian Reply, Pleadings, vol. 4, p. 20, para. 1. 22, wherein Tunisia argued that its historic rights went back to an “époque immemoriale” before the appearance of distinction between zones of jurisdiction such as internal waters and territorial sea (which had been since adopted by positive international law), having been in classical law an exception to the regime of the high seas; and this could not have the effect of cutting off rights acquired from immemorial exercise of same; also the oral pleading by Dupuy for Tunisia (Pleadings, vol. 4 p. 459 (very often historic titles were constituted at a time (“époque ancienne”) when the separate categories of maritime spaces known today did not exist). Report of Walter Hoffman, US v. State of Maine et al., October Term 1984, at p. 25. The Supreme Court put the ‘cut-off ’ date’ in this case as “no later than the latter half of the 18th century” (475 US 89 at p. 96). This doctrine obviously has procedural advantages over proving true ‘historic waters’. Report, 1984, at p. 25. Id., at pp. 25/6. Rather confusingly, though, in his addendum (beginning at p. 69) on the Mississippi Sound case decision in the Supreme Court in 1985, the Special Master added (id., at p. 69. 4) that although the Court did not refer to “ancient title”, it “impliedly “approved a factor of ‘ancient title’ as a criterion of re-establishing an historic bay. The US took no excep-

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Limited discussion of the principle in US caselaw

The idea of such “ancient rights” – as arose in the Massachusetts Boundary case above – has not featured strongly in past ‘tidelands’cases as a basis of maritime claim. For example, US counsel’s references in US v. California to “assertions of exclusive control of the waters off the shore of California by Spain in the eighteenth century and by Mexico in the rst part of the nineteenth century” cut little ice with the Special Master, who added that it did not seem to him that “these assertions of exclusive control have any signicance now”. On the contrary, he thought that they were “reections from the old rule of the closed sea, or mare clausum, which, in the nineteenth century, was replaced by the doctrine of the freedom of the seas – the traditional doctrine of the [US]”.97 Similarly, most recently in Alaska v. US (2005) the Special Master appears to have viewed ‘ancient title’ as a “proposed variant of historic title”.98 Even if Alaska had there maintained that its alleged historic title had gone back to a Russian claim dating from the rst half of the nineteenth century, i.e., when the famous ‘ukase’ (see below, Chapter 6) was made, this would appear not to be of sufciently longstanding character to constitute ‘ancient title’ in the classical period, whatever the Russian motivations were at that time.99 Indeed, in the Massachusetts Boundary case the US Supreme Court opined that under an ‘ancient title’ doctrine the occupation must have occurred “no later than the later half of the 18th century”.100

5. The General International Rule on the Incidence and Onus of Proof In the discussion of the concept of historic waters, the burden of proof has been seen to be on the claimant State. See, for example, the Basis of Discussion No. 8 at the Hague Codication Conference, 1929 (“the onus of proving such usage is on the coastal State”).101 This aspect was much discussed in the Fisheries case,102 where both

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tion to the Special Master’s opinion that Vineyard Sound was an historic bay, but did take exception to his report concerning Nantucket Sound, maintaining (id.) that although “historic title” did not support the claim, “ancient title” did. The Supreme Court rejected this claim on the facts holding that Nantucket Sound did not constitute inland waters under a theory of ‘ancient title.’ Report, October 1952, at pp. 37–38. Report, at p. 13 fn. 9 (emphasis added). See, e.g., the letter of Middleton to Adams, August 3, 1822 (the “rst intention” of the Russians to “declare the northern portion of the Pacic Ocean as mare clausum” was compared then by the US to the much more ancient Spanish claim to oceans, the Papal Bull of 1493 being seen as a “precedent” (cited in the 1903 ABT Proceedings, vol. II, at p. 42); and see CAB v. Island Airlines, 235 F. Supp. 990, at pp. 1000, at p. 1004. 475 US 89 (1986) at p. 96 (emphasis added). See, e.g., Strohl, op. cit., at p. 252; Bouchez, op. cit., at p. 281; Gidel, op. cit., at p. 632; Pharand, loc. cit. at pp. 114/5; Blum, op. cit., at p. 232, including US authorities (e.g., Whiteman, op. cit., at p. 250). See e.g., Counter-Memorial, Pleadings, vol. 1, at p. 566 and id., Pleadings, vol. II at pp. 645–46).

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adversaries – most particularly the UK – agreed that the burden of proof fell on the State which was allegedly making the “exceptional” claim, invoking the old maxim of ‘eo incumbit qui probit’. Additionally, as Gidel has said, as an historic claim constitutes, ipso jure, “an encroachment on the high seas”, it is consistent with this doctrine to put the burden of proof on the claimant.103 It thus ts in with the supposed ‘exceptional’ nature of historic claims as seen above. The “high seas encroachment’’ consideration relative to burden of proof has additionally featured in US caselaw. For example, in CAB v. Island Airlines104 the US District Court cited as signicant that any historic ‘straight baseline’ claim would “in effect appropriate to Hawaii large areas of waters, normally falling within the concept of high seas, thus cutting down the sea area over which the doctrine of ‘freedom of the high sea’ could apply”. Accordingly: The burden of proving [historic title] rests on the state claiming that its ‘historical waters’ possess a character inconsistent with the principle of the freedom of the seas. Since the historic element is the basis for validating what is an exception to the general rule of the freedom of the seas. . . the burden of proof is thus logically and emphatically placed upon the claimant State.105

The UN Juridical Regime similarly stated that “there is abundant authority for the view that the burden of proof lies upon the claimant State”,106 but it played down this somewhat by maintaining that “each of the opponents bears [sic] the burden of proof with respect to the facts on which they rely”.107 There is said also to be the need for ‘extraordinary’ such proof by a claimant State.108 The UK, for example, argued in the Fisheries case that if the right to historic waters is based on an exceptional title, the requirements with respect to such title would be rigorous (a burden “emphatically placed on the claimant”).109 Consequentially, on this basis, the evidence of title will have to be exceptionally strong. In the case of the State contesting any historic claim any counter-burden is no more that the normal evidential burden known to domestic law.110

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104 105 106 107 108

109 110

See the UN Juridical Regime, at p. 21, para. 150; but see also id., at p. 22, para. 158 (the “burden of proof is not really a logical consequence of the allegedly exceptional character of the title”); and O’Connell, op. cit., vol. 1 at p. 39. 235 F. Supp. 990, 1004. See Whiteman, op. cit., vol. 4, at p. 250, citing this case. Supra p. 2, at pp. 21/22, para. 153. Id. See, e.g., Westerman, op. cit., at pp. 30 and 180 (“an extraordinarily high standard of proof”). This view was cited by the Special Master in Alaska v. US (2005) (Report, at p. 108). O’Connell (op. cit., at p. 39) has likewise maintained that “the claimant State has a much greater burden of proof thrust upon it than is required in the case of customary law”. Cited in the UN Juridical Regime, supra n. 106, at p. 21, para. 152. See, e.g., id., at p. 22, para. 157 (in that sense the claimant State “bears the burden of proof”). Cf. the citation in Alaska v. US (2005), Report at p. 108 (“proof must be ‘rigorous’ and the basis of title ‘exceptionally strong’”).

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5.1 Application in Alaska v. US (2005) In Alaska v. US, as the Special Master acknowledged in his Report,111 both parties agreed that Alaska had the “burden of proving” that the waters of the Alexander Archipelago met the requirements for historic waters;but disagreed about the “necessary quantum of proof”, the US claiming that an historic waters claim required “special proof”;112 and where, as in this instance, a “federal disclaimer”113 was involved, the US had alleged a requirement of “proof clear beyond doubt”. The Special Master admitted, however,114 that the Supreme Court itself had “not identied the exact quantum of proof to sustain a historic waters claim”, merely in US v. Alaska (1996)115 describing the elements of such a claim as “strict evidentiary requirements”. He interpreted this phrase as seeming to indicate that “a plaintiff must prove each requirement without any exceptions”; and that “it does not reveal any need to prove the requirements by

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Id., at p. 107. Past US ofcial statements have expressed doubt as to whether any alleged historic claim to the waters of the Alexander Archipelago measure up to the above-stated standards of proof. For example, archival evidence shows that a Department of State Memorandum of January 16, 1973 (from Brower to McKernan, contained in Alaska Ex. 7 p. 24e in Alaska v. US (2005)), referred, in relation to a possible historic waters claim in the Archipelago, to there being arguments in an earlier memorandum which “clearly indicate that there is a substantial question as to whether there is sufcient evidence to establish such a claim”; and pointed out that the US Department of Justice had indicated that the US should “take care to comply with standards of proof employed in international law” (id. (emphasis added)) and that to “deviate from those standards would risk compromising the disclaimers to alleged historic title, which the United States has already made in connection with other parts of [the] coast”). See also, the earlier memorandum of August 8, 1972, referring to the “difculties of proving the existence of an historic claim” (Alaska Ex. 8 at p. 39e). US Count 1 Reply, at pp. 4–5. Regarding the standard of disproof regarding purported federal disclaimer, see the Special Master’s Report in US v. Louisiana (possibly a “higher than ordinary degree of proof is required to establish historic waters” (Report, July 1974, at p. 18)). The meaning of the Supreme Court requirements of “clear beyond doubt” in both the California and Louisiana cases (in, respectively, 381 US 139, at p. 175 and 394 US 11, at p. 77) has been considered since in other tidelands disputes. For example, it was discussed by the Special Master in US v. Maine (Massachusetts Boundary case) (Report, October 1984, at pp. 13, 21, 23, 24). In fact the US argument in the latter case was seen to inter-relate with the international legal requirements; namely that “the burden of this standard only reects international law which also imposes an ‘extraordinary burden on those asserting historic maritime claims’” (id., at pp. 22/23). Most recently, in Alaska v. US (2005) the above dictum was cited in US Post-Trial Reply Brief, at p. 65 where it was evident that even if there ever was a US historic inland waters historic ‘claim’ to the Alexander Archipelago (which there was found not to be), this had on several occasions been clearly disclaimed by the US before ever ripening. Report, at pp. 107/8. 521 US at p. 11.

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extraordinary evidence”.116 He commented that “questionable” evidence would not overcome a US federal disclaimer on the issue.117 As it turned out on the facts, the Special Master found no need in this case to determine such quantum of proof issues, as Alaska had been unable to prove historic title “by even a mere preponderance of the evidence”.118 So in US caselaw, at least, the question of quantum of proof of historic title remains only marginally clearer.

116 117 118

Id. (emphasis added). See id., at pp. 108/9. Id., at p. 109. See also id., at p. 129 (even if the question were “simply whether Alaska could prove such exercise of authority”, the “essential element” [i.e., restriction of navigation], by a preponderance of the evidence, the record demonstrates that Alaska could not do so”).

Chapter 6

AN EXAMPLE FROM THE PAST OF AN EXCESSIVE CLAIM AND ADVERSE INTERNATIONAL REACTION: THE RUSSIAN UKASE OF 1821 CONCERNING WATERS OFF ALASKA 1. The General Background to the Decree This Russian decree (‘ukase’) of 1821 was prompted by the trade – objectionable to the Russian authorities – beween US nationals and native Russian Americans along the south-east coast of Alaska, particularly in respect of rearms and liquor.1 In regulations made under it, all foreign vessels were prohibited except in the case of force majeure, from approaching within 100 Italian miles of the coasts of Russian America.2 As the decree stated, such approach was to be prohibited “to all foreign vessels” in the relevant areas, including by implication the Alexander Archipelago being above 51° N.

1 2

See Okun, The Russian American Company (1951), at p. 75. The ukase is conveniently set out in the ‘Stanley Memorandum’ (K.W. Stanley, “A Proposed Sea Boundary for Alaska” (16 May, 1966) – see infra, n. 33), at p. 138. It had some 63 sections in all.

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The decree was not, then, geographically specic to the Alexander Archipelago as such which featured in US. Alaska (2005) (having vague ‘basepoints’)3 even if the main justication behind it was to control trading essentially within those waters. 1.1 An example of a mare clausum? In fact the Russian decree tted exactly (albeit at a mostly later period) the situation off California, where Spanish, followed by Mexican, maritime claims in the 18th and 19th centuries were seen to have no twentieth century relevance, because they were reections from the old rule of the closed sea4 which then applied even to the high seas. Indeed it is signicant that Oppenheim discusses the ukase in the very context of exaggerated past illegal claims to the high seas, of which the Russian decree can be viewed as the last blatant example.5 In effect – and in historical retrospect – the ukase was, a gross overreaction to an inshore problem; and it has been rightly described as an “astonishing change of policy”.6 1.2

Immediate protests from foreign States

The multiplicity of immediate protests alone to the ukase were enough to block any claimed Russian title outside three-mile limits off the Alaskan coast. Major maritime nations, including the US, quickly protested at these excessive maritime claims. Thus, foreign States, including important or neighbouring States at that time, were to make immediate protests which were never withdrawn. As was stated in the 1903 Alaska Boundary Arbitration (ABT):7 3

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See, in the 1903 ABT decision, the dissenting opinion of Mr Aylesworth when he analysed the ukase, stressing that the “whole negotiations leading to the Treaty of 1825” grew out of the ukase, and that: The language of the ukase in which the [navigation prohibition] is worded contrasts the coasts with the islands, and shows that the coast of the mainland was that from which the 100 miles were intended to be measured . . . (Proceedings, vol. VII, at p. 89 (emphasis added)). In other words, this arbitrator appears to have thought that the same ‘internal’ basepoints were in issue both in the ukase and the 1825 treaty. In Russian times at least there was never any attempt to apply any sort of straight line – let alone a baseline for maritime delimitation purposes – eminating from the points on the outermost islands of the Archipelago itself (as compared with, for example, lines crossing more inland waters such as the various “canals: see the statement of Mr Blaine, 30 June, 1890, cited in Moore, op. cit., vol. I, at p. 901 (emphasis added)). See the Report of the Special Master in US v. California. International Law, vol. 1, 8th ed. Lauterpacht., at pp. 586/7, where the ukase is discussed in the context of “The Open Sea”. See also the letter of Middleton to Adams, August 8th, 1822, referring to the papal bull of 1493 (Proceedings, Vol. II p. 42). The precedent was supposedly taken from Treaty of Utrecht: letter of Bagot to Londonderry, November 21, 1821: id., vol. II, at p. 101. Chevigny, Russian America (1965) at p. 175. Sir Louis Jetté, Proceedings, vol. I at p. 74. He refers (id.) to Canning’s statement of January 15, 1824.

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The two great maritime nations, Great Britain and the United States, could not acquiesce in a prohibition so completely antagonistic to the rules of international law and to the interests of commerce. Consequently representations were made to the Russian Government.

These almost immediate protests to Russia from the US and other maritime nations such as Britain were to be referred to in later national and international litigation,8 apart from, as seen, in the 1903 ABT proceedings.9 It may be noted that both the US and Britain objected to the whole geographical coverage of the decree insofar as it affected a pretension to Russian jurisdiction outside the conventional 3-mile limit from landfall. Indeed in the later Fur Seal Arbitration (1893), the Tribunal expressly found10 that Britain had never recognised any Russian exclusive jurisdiction, including seal shery rights, beyond the “ordinary limits of territorial waters”. Signicantly Blum11 specically cites an 1824 British protest to Russia relating to the ukase as making full use of a formal written protest procedure to stop historic title developing, so making clear the lack of any presumed acquiescence thereto by Britain.12 Furthermore, the US’ negative response to the Russian ukase was even referred to by the US in its reply to the Preparatory Committee of the 1930 Hague Codication Conference on its historic position on maritime jurisdiction.13 It is noteworthy that in the later context of the Behring Sea fur seal dispute with Britain, the US never gainsaid the effect of protests by Britain generally, but merely argued that the Russian jurisdictional claim in the 1821 ukase was “acquiesced” in by Great Britain and the United States north of the sixtieth parallel of latitude, i.e., much further north than the Alexander Archipelago.14

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11 12 13 14

For example, in the Cook Inlet case (527 422 US 184, at p. 191(1975). In the ‘Juneau Hearings’ in 1972 (see supra, p. 41), only brief reference was made to the ukase and there is to be found little discussion as to how this historical episode might impact on the later Alaskan claim except that it was allegedly an “absolute claim to jurisdiction”. They were, for example, cited by the UK in the Fisheries case: Pleadings, Reply of 28/11/50 at p. 652, para. 479, especially to emphasise the importance of whether a protest remains just a “paper” one or is “actively prosecuted through diplomatic channels” (id., at para. 481, p. 654). See the Proceedings, vol. I, Pt. I, at p. 51; also vol. II, 52 at p. 54 (letter of Adams to Rush, 22 July, 1823 (“the United States and Great Britain have both protested against the. . . ukase”)); and the letter of Adams to Middleton (13 May, 1822, id., at p. 39) (the ukase was “universally considered as unwarranted by the law of nations” and the “United States cannot for a moment acquiesce in those regulations”). On the British protests, see Moore, op. cit., vol. I, at p. 891. These included: a note of Londonderry to Lieven (the Russian Minister) on, January 18, 1822 referring to a “provisional protest” against the ukase; and British reservation of claimed exclusive rights regarding “navigation and trading” within its maritime limits (id., vol. II, at pp. 13, 105); and Canning’s letter to Sir Charles Bagot on 5 January, 1824, referring to the “disavowal” of one of the “two objectional pretensions”, namely the “unwarranted claim of territorial dominion” in the Russian ukase(cited by Sir Louis Jetté, id., vol. 1, at p. 74). See Moore, op. cit., vol. I, at p. 913. Op. cit., at p. 156. Id., at p. 157. Ref. 01772 (16/1929). At that time, a US ofcial (Mr Blaine) argued that the earlier US protest of Mr Adams was not

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It was not, however, just the US and Britain – i.e., the most affected States – which objected to the ukase. There is evidence at the time that the Dutch protested, and that the matter was looked on with disfavour in Naples and Frankfurt.15 1.3

Reasons for ukase having no legal effect

As a blatant claim to a vast area of high seas, the decree did not typify any other alleged historic claims which have been raised thereafter, where the initial claims have invariably constituted enclosed, or at least, semi-enclosed, coastal waters. Even in 1821 it was obviously illegal as smacking of a “closed sea”.16 Much later, in the 1903 Alaska Boundary Arbitration (ABT), the British side expressly referred to opinions of the British Law Ofcers on the ukase as showing it to be contrary to the law of nations.17 This apart, it seems clear that this ukase could not be considered to amount to an historic claim in itself, if only because it was so shortlived, being withdrawn before it was put into proper effect (see below), and because it was never effectively implemented; but in any case the international protests it provoked cancelled out such lasting effect. In Alaska v. US (2005), the Special Master conrmed the ineffectiveness of the ukase to create historic waters.18 1.3.1 The ukase was in any case quickly withdraw unilaterally This was done initially by voluntary unilateral withdrawal by Russia. As a result of the abovementioned international protests and controversy (conrmed in Russian sources),19 it appears that the navigational regulations were, in practice, speedily dropped or restricted. As Okun states, the ukase was (at this stage) “practically annulled,

15 16

17 18

19

against the Russian claim itself, but “against its extension southward to the fty-rst degree of latitude . . .” (cited in Moore, op. cit., vol. 1, at p. 901). Thus the attempted US argument in the Fur Seal Arbitration that both the US and Britain had “recognised, respected and obeyed” the “unmodied” Russian ukase-based jurisdiction in the Behring Sea was rmly rejected by the Tribunal: see Moore, op. cit., vol. I, at p. 901. Cf. the inconsistent Russian attempt in 1822 to argue tacit assent to the ukase by Britain and US (Russian Memorandum to Wellington of November 23 1822: cited by Blum, op. cit., at p. 87). See Chevigny, op. cit., at p. 184. See, for example, the King’s Advocate’s letter to the Marquis of Londonderry (of 20 November, 1821; Law Ofcers Opinions, vol. 62, p. 157 (“[t]he extent of [maritime] territory so assumed is greater than is ordinarily recognised by the principles of the law of nations”; and he suggested deprecation of “any infringement on the rights of commerce and navigation” which Great Britain and her subjects might suffer). See also Wellington to Lieven, November 28th, 1822 (the “assumption of power is contrary to the law of nations”): Proceedings, ABT case, vol. II, at pp. 117 and 101. Proceedings, vol. II, at p. 12, App. 102. Report, at pp. 24, 25, 126, referring to the conclusion of the Supreme Court in the earlier Alaska (Cook Inlet) case that the ukase did not establish historic inland waters status because Russia withdrew it after immediate protests by the US and Britain. See Okun, op. cit., at p. 82.

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though without benet of a formal announcement”.20 Thus the US’ understanding, in 1822, was that Russian warships would be instructed to conne their operations to the usual limits recognised as territorial by other nations.21 Similarly, it was reported that Russian warships were ordered to “cruise at the shortest possible distance from the shore”;22 and that the Russian Emperor “did not propose to carry out the ukase in its extended sense”.23 This quick and voluntary unilateral retraction was done in a comprehensive manner. Statements in subsequent arbitral tribunals concerned with the waters off Alaska conrmed that the ukase had but a short existence. 1.3.2 Express renunciation by Russia of the ukase claim in the 1820s treaties Certainly when the two (similar) treaties were signed by Russia with the US and Britain in 1824 and 1825 respectively,24 these were seen by both latter parties to formally end the Russian claim.25 Later commentators took the same view.26 In other words, the supervening treaty regime was viewed as overriding totally the virtually defunct ukase in terms of such Russian maritime claims. Indeed it seems that obtaining this renuciation by Russia was the main aim of the pre-treaty negotiations.27 20

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27

Id., at p. 83. See also the letter of Canning to Lieven of May 29, 1824 (Proceedings, vol. II p. 180) (“we take for granted” that the ukase exclusive claims “are to be altogether withdrawn”); and id., vol. I, at p. 74 (disavowal of the ukase in respect of its “extravagant assumption of maritime supremacy is, in substance, all we could desire”); and the Report of the Special Master in Alaska v. US (2005) at pp. 24/25. Proceedings, at pp. 14 and 43; see also US statements at the 1903 ABT case (id., vol. II, at p. 14, App. at 39) (pending treaty negotiations, Russia “voluntarily suspended” the ukase’s “execution”; and orders were given to its navy to “restrict their surveillance of foreign vessels to a distance of a cannon shot” of the relevant shores). Id., vol. II, at p. 108. This was to (seemingly) prevent supply of arms to natives (see memorandum from Wellington, September 11, 1822, set out id., vol. III, Pt 2, at p. 38). Id., vol. II, at p. 108. See also the British statement as recorded in the Proceedings, vol. ll at p. 53 (“we take it for granted that the exclusive claims to navigation and jurisdiction over the North Pacic Ocean [as claimed in the ukase]. . . are to be altogether withdrawn”). See reference in the 1903 ABT case (Proceedings, vol. II at p. 34) that the ukase was the principal cause of the negotiations. See, e.g., the letter of Canning to Count Lieven (29 May, 1842) (“we take for granted that the exclusive claims of navigation and jurisdiction” as put forward in the ukase, “are to be altogether withdrawn”; and the note of Lord Salisbury (of August 1890) (cited by Moore, op. cit., vol. I at p. 902) (referring to the protest by Canning and asserting that the 1825 treaty with Russia was “regarded by both sides” as a renunciation by Russia of its ukase claim “in its entirety”). See, e.g., Okun, op. cit., at p. 85 (“in direct contradiction to the ukase”); Strohl, op. cit., at p. 266; also S.A. Swartztrauber, The Three-Mile Limit of the Territorial Seas (Naval Institute Press), 1972, at p. 26; and Oppenheim, op. cit., at p. 587) (“Russia dropped her claims in conventions concluded with the protesting Powers”). See the communication of Canning to Stratford, saying that the chief motive of British negotiations with Russia was in respect of a “demand of the repeal of an offensive and unjustiable arrogation of exclusive jurisdiction over an ocean of unmeasured extent” (cited in T.W. Balch, ‘The Alasko-Canadian Frontier’ (1902) (see bibliography), at p. 14).

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Moreover the Russian treaty concessions were seen as a Russian “acknowledgement of the freedom of the high seas for the navigation of all nations”28 outside any Russian 3-mile limits(as then recognised by the US and Britain). In the US/GB Fur Seal Arbitration of 1893, Britain argued that the 1825 treaty was regarded by both States as a renunciation of the 100-mile claim “in its entirety”; and the Tribunal afrmed that Russia had admitted that its jurisdiction in the Behring Sea “should be restricted to the reach of a cannon shot from the shore”, a principle which the US thereafter formally accepted.29 Thus, from that time up to the cession of Alaska to the United States in 1857, Russia had never exercised any jurisdiction beyond “the ordinary limits of territorial waters”.30 So the general effects of the changed Russian policy, as viewed by the US, were longlasting. 1.3.3 US conrmation of withdrawal of the ukase at end of the 19th century Following the US/GB Fur Seal Arbitration in 1893, the US declared that, in relation to any possible Russian claims (“certain jurisdictional rights in the Behring Sea”) it fully accepted the 1893 Tribunal decision as an “authoritative declaration of international law”, including its nding (which referred to the ukase) that from the time of the 1820s treaties and “up to the time of cession”, Russia [had] never asserted in fact, or exercised any exclusive jurisdiction in Behring’s Sea or any exclusive rights in the seal sheries therein beyond the ordinary limit of territorial waters”.31 In the later US/Russian Fur Seal/Whaling Arbitration in 1902, the US agent, Mr Pierce, was to make by “specic authority of his Government” a declaration that “neither in the Behring Sea nor in its bordering waters” did the US admit any State had jurisdiction “more than one marine league” from its shores.32 And in the 1903 ABT

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30 31

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Proceedings, vol. ll, at p. 66. Cf. the unconvincing contention by Blaine (cited in Moore, op. cit., vol. I, at p. 901) that the US/Britain treaties with Russia made “no attempt at regulating or controlling” Russian possessions further north where the ukase allegedly “stood unmodied” and was (allegedly) respected by both Britain and the US; but compare the British riposte (id., at p. 902) by Lord Salisbury who maintained that the ‘Adams protest’ “covered the whole of the extraordinary jurisdictional claim”. Moore, op. cit., vol. I at 902. Cf. the US statement in the pre-US/Russia Fur Seal arbitration situation (US minute to Russia July 14, 1893, cited by Moore, op. cit., vol. I, at p. 924 and pp. 925/6) which admitted that pending negotiations of the 1824/5 treaties, Russia “voluntarily suspended. . . execution [of the ukase]” in terms of practical surveillance of foreign vessels except within cannon shot “of the shores mentioned”; and that the US regarded the Paris Tribunal decision as an “authoritative declaration of International Law”. It is noteworthy, as seen, that the Behring Sea and North Pacic coasts here were lumped together as regards renunciation of the ukase claim (see Proceedings, vol. II, at p. 34). Moore, op. cit., vol. I at pp. 912/13. See Moore, op. cit., vol. I, at pp. 925, 927 (citing Mr Gresham, on July 14, 1893); and the ABT Proceedings, vol. I, at p. 10. Moore, id., at pp. 928/9.

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case the US agents conrmed that then the new ‘treaty’ provision ensuring freedom of navigation in the North Pacic and Behring Sea to the citizens of both powers was be a “sufcient formal renunciation” of any former claim;and acceptable to Russia because of “her withdrawal from her maritime claim”.33

33

Compare, though, the abovementioned ‘Stanley Memorandum’ (“Proposed Sea Boundaries for Alaska”, prepared by the Division of Lands, Dept. of Natural Resources, State of Alaska by K.W. Stanley, May 20 1966 (edited May 1970), at p. 98 (see bibliography and supra n. 2, at p. 96) which perversely mentions, in a brief historical review, supposed evidence to show Alaska’s claim to certain waters based on Russia’s uncontested claim to these same waters, including (amazingly) the 1821 ukase (id., at p. 97).

Chapter 7

POSSIBLE INTERNATIONAL ORIGINS OF HISTORIC CLAIMS TO WATERS: INTERNATIONAL JUDICIAL DECISIONS, PROCEEDINGS BEFORE INTERNATIONAL TRIBUNALS AND TREATIES 1. Types of State practice which may give rise to Historical Claims: The Problems in Alaska v. US (2005) Evidence of the origin of a particular historic claim may most obviously arise from intraterritorial actions in the claimant State such in a decree, legislation or judicial decision (see below Chapter 10); but they may also arise, in whole or in part, from some external agency such as international treaty or adjudication. For example, in respect of the evidence of historic claim in Alaska v. US (2005) the Special Master made reference to the following1 to illustrate the diversity of the type of evidence there submitted to prove (or disprove) a title to historic waters. As he said:

1

Report of 2004, at p. 18.

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Chapter 7 The numerous exhibits [in the case] provide information about dozens of incidents in the [Alexander Archipelago’s] history. The exhibits include international treaties, statements made before international tribunals or in the course of international negotiations, and reports detailing the experiences of mariners plying the waters in the nineteenth and twentieth centruries. The exhibits also include historical accounts of the practices of Russia prior to its cession of Alaska to the United States in 1867, congressional reports and other documents, agency regulations, letters and memoranda of executive branch ofcials, geographical charts, and magazine articles. The documents come from many parts of the world over a 150 year period. The parties appear to have collected every kind of statement, in every possible form, regarding the status of the waters at issue.

Some of these various types of documentary evidence of a claim to historic waters will be discussed in relevant headings below. The Special Master in the above case also commented on the timescale of documentary evidence of alleged claim in the case – as seen, over an 150 year period; thus including the facts and documents relevant to the issue of historic title beginning in the 1820s (at the time of Russian occupation of Alaska), extending through the cession of Alaska to the USA in 1867, and continuing up to Alaska’s statehood in 1959, only ending in the 1970s when the US then made “international representations” (inconsistent with an historic waters claim) concerning Alaska’s coastline.2

2. International adjudication 2.1 Decision of an international tribunal: El Salvador/Honduras and the Gulf of Fonseca A specic nding by an international tribunal as to the historic status of particular waters may (in time at least) have an effect even erga omnes and beyond the parties to a particular dispute submitted to an international tribunal. As the Memorial of El Salvador in El Salvador/Honduras3 stated regarding the Gulf of Fonseca (which had been (in the 10th question) found in the the famous 1917 judgment of a Latin American regional court (the Central American Court of Justice) to be an historic bay with the 3 riparian states as co-owners), “[e]ven if initially the judgment was binding in respect of the direct parties to the litigation, Nicaragua and El Salvador, the legal status recognised therein has been consolidated in the course of time, its effects extend[ing] to third states, and in particular . . . to Honduras”.4 El Salvador went on to argue that “[a]s to third States in general, the objective legal regime established on the basis of the judgment relies on the acquiescence and in some cases on the express recognition of third States, particularly the great maritime powers”.5 It cited in this connection a US diplomatic note of 1904 and the fact that “other

2 3 4 5

Id., at p. 23. Pleadings, Vol. I, para. 13.1, at pp. 175/6. Id., at pp. 176/77, para. 13.2. Id., at p. 177, para. 13.3.

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maritime powers ha[d] continuously enjoyed the uso innocente of the waters of the Gulf for their merchant vessels and ha[d] never questioned the character of the Gulf as a territorial bay whose waters are within the jurisdiction of the bordering States”, This status was despite an (allegedly limited) “protest” before delivery of the judgment opposing the Salvadorean assertion of co-ownership of the three riparian States to all the waters of the Gulf.6 It follows that if an international tribunal has made a nding on the existence of historic waters- even in a bilateral situation – this is of great legal signicance. For, in principle, such a nding – although strictly binding only on the Parties – may form part of the historic “claim” of the relevant State in an ‘objective’ sense. This factor was to be endorsed in the judgment of the ICJ in 1990 regarding the Gulf of Fonseca. Here the ICJ stated that the “judgment of 1917 [in respect of the historic claim] which . . . examined the particular regime of the Gulf of Fonseca must . . . be taken into consideration as an important part of the Gulf’s history”.7 The ICJ referred also, however, to reasons for nding the Gulf to still be historic waters “apart from the reasons and effect of the 1917 decision of the Central American Court of Justice”.8 In other words, it also took into account ‘independent’ reasons. This seems to tie in with El Salvador’s view, evident in its Reply in the case, that the 1917 judgment, though not binding as such on Honduras, nonetheless was evidence of “the rule of customary international law applicable to the Gulf of Fonseca” which bound all the three riparian States; and that the reasonings and conclusion of that judgment “reect[ed] the pre-existing rules” of such law which “operated independently of the judgment”.9 Similarly an international tribunal may rule against any alleged ‘historic claim’, as seemingly happened in the Fur Seal Arbitration. 2.2.1 The (Behring Sea) Fur Seal Arbitration (1893) In the Fur Seal Arbitration, the US in its argument (in part at least) based its claim to jurisdiction beyond the 3-mile limit on extensive “exclusive” jurisdiction in that area which might have been exercised rst by Russia and later by the US.10 Jessup noted that it was “considered [in the case] that the United States had ‘inherited’ certain special rights from Russia and that these rights had been recognised by Great Britain”.11 In this connection, however, Mr Phelps, US Minister at London, dismissed (in September 1888) any “mare clausum claim” by the US and mentioned “the right of self-defense as to person and property” as prevailing in this instance. At that time any sporadic seizures

6 7 8 9 10

11

See id., and pp. 178/9, paras. 13.5 and 13. 6. Supra p. 2, at p. 590. Id., at p. 601, para. 405 (emphasis added). Pleadings, vol. IV, at p. 196, para. 6.87. See Hyde, op. cit., vol. I, at p. 261 and Jessup, op. cit., at pp. 363/4, n. 32; also the Fur Seal Arbitration: Proceedings, vol. VII, at p. 19. Op. cit., at p. 55.

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by the US of British/Canadian sealing ships outside the 3 mile limit were, in any case, being vigorously protested by Britain as being unjustifed under international law.12 Signicantly also at this time (in the 1889/90 period), the US expressly disclaimed that it was necessary “to dene the powers and privileges ceded [by Russia]” in the treaty of cession in respect of its broader ‘contra bonos mores’ argument. And the Tribunal held, in respect of the Behring Sea, at any rate, that Russia had “admitted” the cannon shot rule in negotiations of 1824/5; and that “. . . it appears from that time up to the cession of Alaska to the United States, Russia has never asserted in fact, or exercised any exclusive jurisdiction” in those seas13 beyond “ordinary” limits of territorial waters, though all things being equal such rights could have passed “unimpaired to the United States”.14 In a past Alaskan view on this,15 it has been argued that the 1893 Fur Seal Tribunal made “no ruling on the status of the interior seas, gulfs, harbors and creeks”; so that “[w]e must assume . . . that the Tribunal intended, and properly so, that the three mile limit in such cases began not from the low water mark, but from some closing line”. However, this assertion is quite unwarranted as it totally begs the question over the inland waters issue and what ‘closing lines’ then existed.16 At the ‘Juneau Hearings’, the Fur Seal Arbitration was referred to; and it was pointed out that the question of what Russia ceded to US was one of the questions in 1893. It was claimed that one of the conclusions to be got from that arbitration was that Russia claimed “no unusual jurisdiction”, i.e., nothing beyond 3 miles; and that following a review of the negotiations of the 1824 and 1825 treaties, there was “no unusual historic claim”.17

12 13 14 15

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17

Cited by Moore, op. cit., vol. l, at p. 898. Id., at p. 925 (emphasis added). See Moore, op. cit., vol. I, at pp. 912/3. By K.W. Stanley, supra p. 77, at p. 10. He also cited (id.) US counsel (Harlan’s) statement before the Tribunal, to the effect that the US had “no occasion and no desire to withdraw or modify the positions which it ha[d] at any time maintained against the [Russian] claims”; and saw (id., at p. 11), as further evidence of recognition of Russian ownership over the interior seas, the ‘lease’ later negotiated between Britain and Russia allowing use of the waterways of SE Alaska for an “additional 10 years”. Jessup (op. cit., at p. 54/5) explains the unusual US position in this case and the “special conditions” referred to by US Secretary of State, Mr Blaine, including an analogy to “British claims over Ceylon pearl sheries”, so hinting here of an ‘historic claim’. The Special Master in Alaska v. US (2005) referred to the proceedings of the Fur Seal Tribunal (Report, pp. 40–42), citing Sir Charles Russell’s (the British representative’s) interpretation of Art. 4 of the 1824 treaty, to the effect that it gave temporary advantage to the US on access to “strictly territorial waters”, i.e., interior seas, gulfs etc, where he agreed with the US federal interpretation that such terminology in the treaty did not include all the waters of the Alexander Archipelago (id., at pp. 41/32). Supra p. 41, at p. 15. Cf. Senator Stevens, who there alleged that at that time US did claim to have inherited the claim of Russia; and that the US did not in (in the Fur Seal treaty ) “give up [any US] prior claim” (id.) – an instance of alleged past evidence of successional formal claim. To this Mr Nelson, referring to the Cook Inlet situation (where it was “discussed at

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2.2.2 International arbitral tribunal decision of 1903(ABT) and the case of Alaska v. US (2005) There was no judicial examination of a ‘particular regime’ in the waters of the Alexander Archipelago, and still less a decision on same, by the arbitral tribunal in the ABT case (1903);18 and certainly none of the arbitrators referred to any alleged US ‘claim’ to these waters in their decisions19 (perhaps the most damning factor as to any US ‘claim’ being

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length”) rightly replied (id.) that the US there claimed a special regulatory right, not a “territorial claim”(on record he cited a Moore’s Digest reference and Whitelaw v. US 75 F. 513 where the 9th Circuit Court of Appeals found the Arbitration Court decision “binding”). It should also be noted that US ofcial statements since the case have emphasised that the only “water boundary” which came “specically under consideration” in the 1903 arbitration was the “line through the Portland canal”. See, e.g., Boggs’ (State Department) memorandum of 24/7/33 regarding the ‘A–B line’ (US Archive Ref. 00017). See also his paper on the same line (3/8/1940 (Ref. 00329)), quoting Judge Dickinson’s letter of the DOS of 22/5/ 1924 on interpreting the 1903 proceedings. Most signicantly, the opinions of the US Tribunal members (Root, Cabot Lodge and Turner) made no reference at all to the US ‘internal waters’ argument in nding that the line was to run round the heads of the “inlets” (and not to cut across them), “so leaving their heads in British territory” (Proceedings vol. 1, Award of the Tribunal, at p. 48). Indeed they made no such allusion to the US argument even when they referred to the archipelagic dimension. Thus, in considering whether the “ocean” could start at the periphery of the Archipelago, they stated that if this were the meaning of the word, the “coast line would be outside of the islands, and a line drawn at 10 marine leagues from that coast would give to Russia no territory whatever on the mainland”. And, for example (id., at pp. 53/4) they opined that the British interpretation of “ocean” could not take in stretches along the coast for 300 miles, covering a space from 80 to 100 miles wide, including an archipelago of islands separated from each other and from the mainland by a multitude of narrow and tortuous passages. In other words the whole idea of such an outer line was dismissed as absurd. One might have expected here some reference (in the context of a line “outside the islands”) to the straight baseline aspect of the US argument (in nding against the British argument), but not one of the ve or so reasons given do so. In his dissent, (British) arbitrator Aylesworth said in effect that the then treaty-makers were dealing with the mainland situation as if the islands did not exist, though the enveloped waters might, he added, be “territorial waters” by reason of “the outlying islands opposite” (id., at p. 88 (emphasis added)); and he only referred to a straight line passing from shore to shore over the islands which lay within its entrances, so enclosing “territorial or inland waters” (see id., at pp. 89 and 91). Thus he ignored the possible existence of any outer perimeter line based on the outer islands. Undoubtedly, this arbitrator did interpret the mainland line here as possibly being equivalent to the baseline for maritime delimitation purposes because he maintained that from it the Russian ukase claim would have been measured. Lord Alverstone did make some veiled allusions to related aspects of an outer line – the archipelagic aspect in a purely physical sense, namely the meaning of “ocean” in Art. III of the treaty and Q. 5; and he expressly mentioned the group of islands’ distance from the mainland in this context (Proceedings, vol. I, at p. 38). He stated that the “western limits of [the] islands extend in some places about 100 miles from the coast”, though the channel and passages between the islands and the islands and the coast were narrow waters of width varying from a few hundred yards to thirteen miles; and that though no one would ordinarily call such channels and inlets “ocean”, the treaty did so regard some as such (id.). However

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made in the 1903 case which Alaska proposed in Alaska v. US (2005) (see below)). The simple reason for this was because any such outer line around the islands did not come within the essential terms of reference of Article III of the 1903 Arbitration treaty which (in para. 6) asked, inter alia, whether it was the intention of the 1825 US/Russia treaty that where the “mainland coast” was “indented by deep inlets”, the width might be measured from “the line separating the waters of the ocean from the territorial waters of Russia” (emphasis added)). The outside of the Archipelago was only too obviously not here considered ‘mainland coast’. As the Special Master commented on this aspect in US v. Alaska (1996):20 “[t]he [Tribunal’s]opinions did not address the location of the political coastline”. This omission is particularly important in terms of the international requirements for historic claims, as it is the decisions of the arbitrators that foreign nations are most likely to be acquainted with.21 2.3

‘Historic’ claims made as part of the pleadings before international tribunals

2.3.1 Historic claims directly pleaded Claims made in ofcial pleadings before an international tribunal may, in appropriate circumstances evidence an historic claim; but such a ‘claim’ must be treated with great circumspection as it may smack of opportunism. For example, the Tunisian claim to the Gulf of Gabes – established legislatively in 1973 by a system of straight baselines and then made without any mention of a claim based on historic title – was said to be based on historic rights later in a map shown to the ICJ.22 Such a matter arose more recently in an acute way in Alaska v. US (2005).

20 21 22

he rmly concluded that Articles III & IV of the treaty referred simply to the coast of the continent ((id., at p. 41); and that “windings of the coast” and “sinuosities of the coast” did not imply that a line would “ cross any substantial arm of the sea”. On the various meanings of “coast”, Lord Alverstone agreed with the US argument that word was an ambiguous term (as e.g., in Arts. III & IV(id. at pp. 37/38)). But he clearly summarised the British argument as making the line run “round the heads of the bays or inlets” or to “cross them” (id., at p. 38). Report of March, 1996, at p. 65 (emphasis added). See infra Chapter 11, section 1.1.1. See Scovazzi, op cit., supra, p. 8, at p. 328. He comments (id.): “[I]l semble préférable de ne pas attribuer une valeur erga omnes à un document qui n’a été utilisé qu’à l’occasion d’un différend judiciaire determiné”. The Special Master in Alaska v. US (2005) made reference to a British statement at the 1910 ABT case (Report, at pp. 61/2) to the effect that in “1903 . . . [in the ABT case ] the [US] asserted that its boundary extended three miles beyond a line joining the islands which lie off the Alaska coasts” (8 Proceedings in the North Atlantic Fisheries Arbitration, S. Doc. No. 61–870 at 86). He commented on this (id., at pp. 61/2) that although the US in the instant case disagreed with “some aspects of Britain’s interpretation of the [US] position at the 1903 [ABT]”, the “US did not dispute that it had identied the political coastline as surrounding the islands in the Alexander Archipelago”. However, he later (at pp. 63/64) discounted the alleged 1910 evidence, citing the US argument that “even if Alaska were correct that the [US] embraced 10-mile closing lines in the 1903 [ABT case], it promptly repudiated that position when the question of closing lines was squarely placed at issue” (US Count 1 Memorandum, at p. 35). See also id., at p. 127 (“The records of the 1910 North Atlantic Fish-

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2.3.2 Claims allegedly made in the 1903 Arbitration (ABT) relative to the waters of the Alexander Archipelago: Alaska v. US (2005) 2.3.2.1 General considerations in the arbitration As described by the Special Master in Alaska v. US (2005),23 in 1903 an international arbitration panel called the Alaska Boundary Tribunal (‘ABT ’) “decided a dispute between the [US] and Britain regarding the land boundary between southeastern Alaska and Canada”. The background to the tribunal proceedings24 was that the 1825 RussoBritish treaty gave Russia a ‘lisière’ (strip) of land running, in general, along the coast, from the mainland shore to the “summit of the mountains . . . situated parallel to the coast”. As the Special Master summed up the position:25 “ . . . Russian territory started at the shore and ended at the summit of the mountains or at a distance of ten leagues from the coast, whichever point was closer to the shore”. At the proceedings, a dispute arose about where the ten league measurement should commence in areas where inlets of water cut into the mainland, such as in the case of the Lynn Canal, Britain arguing that there should here be a closing line where such an inlet rst narrowed to 10 (or six) miles. The alleged ‘claim’ to internal waters made by US counsel during the course of argument in the 1903 case appears from the Alaskan Complaint in Alaska v. US (2005) to have been the primary source of Alaska’s historic waters ‘claim’. Count I, para. 7, of the amended Alaskan Complaint alleged that “[f ]rom at least 1903 until 1971, the United States took the position in its international relations and its litigation with the States. . . that the waters of the Alexander Archipelago were inland waters, including the pockets and enclaves more than three miles from the coast line of the mainland and any of the islands enclosed behind the closing lines drawn by the United States to mark the seaward limit of inland waters at the 1903 Alaska Boundary Tribunal arbitration. . .”. It thus appeared that 1903 constituted the ‘critical date’ at which the alleged origins of the Alaskan historic ‘claim’ had be assessed in the litigation.26 So that if the federal entity did not make historic title pretensions then, it never made them subsequently.

23 24 25

26

eries Arbitration do not resolves the status of the waters of the . . . Archipelago”). Likewise he referred to the UK and Norwegian submissions to the ICJ in the Fisheries case (1951), where, he stated, “each cited the position of the [US] at the Alaskan Boundary tribunal (id., at p. 62), both saying that “the [US] had claimed [in 1903] that the boundary runs along the outer edge of the Archipelago”. He implicitly seems to consider that these later statements bolstered the Alaskan historic waters claim. He also (id., at p. 63) referred to a US DoJ Memorandum analysing the 1903 ABT proceedings as expressing a similar view on the US position. Report, at p. 56. See id., at pp. 59–61. Id., at p. 60. The case has, however, been little discussed in post-war US writings. For example, it is not mentioned at all in K.W. Stanley’s “Memorandum on Proposed Sea Boundaries for Alaska” of May 20, 1966: see supra, p. 77. See below Chapter 8, section 1.4.1.

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This is borne out by the fact that any later alleged US references to an inland waters claim in the Archipelago do in fact generally hark back to this date. The twice re-iterated qualifying phrase in the Alaskan pleadings in the case (“from at least 1903”) was strong evidence that Alaska put no great reliance on any earlier assertion of such historic title by the US authorities since 1867; nor, as will be seen, before that in terms of a possible ‘successional’ claim from Russia, whether by means of a ripened Russian historic claim, or an alleged continuation of prior Russian actions in pursuit of an independently-generated US historic claim.27 Thus, not surprisingly, the US Supreme Court in Alaska v. US referred to a “stronger piece” of evidence by Alaska being “a litigating position taken by the [US] during arbitration proceedings in 1903” where in oral argument, counsel for the US allegedly “made explicit” that recognition of the “political coast” would render all the waters landward of as “interior”.28 2.3.2.2 Possible reasons for the pleadings in the ABT case not being equivalent to a “claim” In terms of all the supposed international requirements (at customary law) for establishing an historic claim in respect of the Alexander Archipelago’s waters, arguably none was satised by what transpired at the 1903 Arbitration. Reasons for this viewpoint include that: that there was, most importantly, lack of any proper formal claim by the federal Government to the waters as being internal(see below section 2.3.2.3), let alone as being ‘historic’ internal waters; and that the UK did not then acquiesce in the alleged status of the waters as being inland waters.29 There is no doubt that US counsel in the 1903 case did expand the argument considerably beyond what was contained in the original written pleadings; so that, such argument might later be discounted as a reliable guide to national policy. Most damning of all, however, would seem to be the fact that the so-called ‘claim’ to inland waters in the Archipelago was made in a hypothetical context;and possibly without ofcial Government sanction, as indeed has happened on other occasions before international tribunals.30

27

28 29 30

Cf. the Norwegian argument in the Fisheries case (Pleadings, 12/10/51, at p. 314) that its decree of 1935 was merely an application making more precise, and in consolidated form, matters “during the 19th century”; i.e., a sort of retrospective interpretation of historic title! British argument there had, for example, pointed out that the lines decreed in 1935 were longer than any previous ones. 545 US 75, at p. 89. See below Chapter 14, section 2.1.1.1. As to allusions to possible non-ofcially approved argument by counsel in international litigation, it is interesting to note in the context of possible lack of ofcial sanction of argument before international tribunals, the Norwegian converse argument in the Fisheries case (Pleadings, Counter Memorial of 31/7/50, at p. 432 and Oral Argument at p. 1309), on the matter of bay mouths, appropos the North Atlantic Fisheries case relating to Sir Robert Finlay’s assertion in oral argument there that the British case in this abitration had been “submitted to the Foreign Ofce before it was lodged”, i.e., before it was presented to the Tribunal (empha-

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Even if the substance of the alleged US ‘claim’ on the outer line (and inland waters) was contained in the written US pleadings in the1903 case, it remains a fact that supplementary submissions made by counsel in the heat of argument in litigation, particularly when made unconvincingly (including putting words in the mouth of the opponent (see below)31 are – even in international arbitration – never by themselves a safe guide as to actual Government policy of the State which such counsel represents (even if there were later allusions in the 1964 US Brief in US v. California to relevant US “claims” (but seemingly based on juridical principles) being made in the older proceedings.32

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32

sis added). So that it was was for this reason argued to be a more authentic ofcial British viewpoint than even other British Government statements made previously;and therefore (allegedly) (id., at p. 436) this left no doubt as to the attitude of the British Govenment on the problem. See also in this connection, the British argument, per Sir Eric Beckett, in the Corfu Channel case; to the dramatic effect that US counsel Elihu Root (a former state ofcial), during the course of arbitral proceedings in the North Atlantic Fisheries Arbitration – had there made a legal proposition “without authority of his Government” – a classic past example of a warping of (US-viewed) law of the sea policy by US counsel in international arbitration: see Proceedings, vol. I. Pt. I, at p. 31 and Pleadings (in the Fisheries case) of 11/11/48, at p. 274 (emphasis added). Root had (ironically ) been previously appointed by the US as one of the arbitrators in the 1903 case. One might say similar things about Hannis Taylor’s ‘dicta’ in the ABT case (see below section 2.3.2.3), and adopt the words from the US Brief in US v. California; namely that a “[US] Attorney, who has no power to determine the international policy of the [US], cannot be held to have nullied, by his conduct, policies long and tenaciously developed and maintained by the Department of State” ((1964) No. 5 Original, at pp. 112/113). The alleged ‘external line’claim was never seemingly raised by Britain; and the US written pleadings (see “Argument of the United States”, at pp. 14–18) – further evidence that the alleged ‘claim’ was thus not directly related to the essential US argument which concentrated on the physical boundary as laid down in the treaty. The US written pleadings expressly conceded (id., at p. 17 (emphasis added)) that the “entire British case” rested on “the admission that the eastern boundary of the lisière is to be determined with reference to the inner coast only, and on the contention that a political coastline can be predicated of [sic] this coast”. They thus made no reference to any possible British “outer coast” claim, and were equivocal as to where a straight baseline might run. See also id., at pp. 15, 17, 18 and 20. Thus the US pleadings from the start lacked clarity on an ‘outer line’ argument and treated any such political boundary issue as being peripheral to their central argument in the case. What, then, is clearly evident is that in the wording of the written (and so more ofcial) US case, there is no reference to Britain having raised such an ‘external line’ argument in its pleadings. Thus it was only in the oral argument that the perverse (and vague) allegation of Hannis Taylor arose as to this being a British interpretation which it (i.e., Britain) had raised. It was, as has been seen, seemingly raised by him as a purely hypothetical agrument to refute the British politico-legal straight baselines argument (i.e., one based solely on more internalised straight lines across obvious interior ‘bays’). It is thus entirely unclear why US counsel Hannis Taylor tried to make out he was responding to a British argument (Proceedings, vol. VII, Pt. 1, at p. 608):Britain in fact seems to have ignored his argument as irrelevant (or denied having made it itself ) (id.). Britain did not even stipulate a denite 10-mile closing rule on which he based his argument (Argument of Great Britain, at p. 34). See infra, Chapter 10, section 1.4.2.2. Statements in a US Brief may not reect US Government

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To try to read any more into case is analogous to what Judge Oda (in the El Salvador/Honduras case) said happened previously in the 1917 Central American Court proceedings (on historic title), where he alleged that the “legal status of the waters of the Gulf as between all three riparian States was not, at all events, necessarily at issue in the particular dispute submitted” to the Court there.33 In other words he viewed even the words of a quasi-international court on alleged historic status (not mere counsel’s argument) as being effectively obiter dicta or misinterpretation in retrospect. 2.3.2.3 Hypothetical argument:pleadings in the 1903 case as discussed in Alaska v. US (2005) The allegedly vital but isolated statements, made seemingly arguendo (see below), on which Alaska so critically relied34 were, in general, to the effect that the federal government was said in 1903 to have viewed the “political boundary as skirting the outer edge of the Alaskan or Alexander Archipelago rather than following the mainland’s actual coastline . . .”. In his Report in Alaska v. US (2005), the Special Master referred to “three highly relevant statements by the [US] at the arbitration”.35 The rst was in a written submission to the tribunal as to its view of the “political coast” of the Alexander Archipelago”,

33 34 35

policy, as the US Brief in US v. California ((1964) No 5 Original, at p. 111) evidences in a more domestic context. Here the US explained that in The People v. Stralla (14 Cal. 2d. 617) the US had led an amicus curiae brief taking the position that Santa Monica Bay had “attained the historic status of a bay”; but as the US Brief continued:” [w]hile the ling of that brief was, of course, an action of the [US], we submit that no great signicance can be attached to it,” because the US Attorney-General for the Southern District of California “merely sought and received permission to appear [and assist] in this case”; and US State Department les did not indicate that “his brief was ever submitted to it for its approval or that the State Department was ever consulted” (id., at p. 112 (emphasis added)). The US written pleadings in the ABT case expressly conceded (Argument of the US, at p. 18) that the “entire British case” rested on “the admission that the eastern boundary of the lisière is to be determined with reference to the inner coast only, and on the contention that a political coastline can be predicated of [sic] this coast”. These US written pleadings thus make no reference to such a possible British “outer coast” claim, and are equivocal as to where a straight baseline might run. They merely point out that the “dependant and accessorial frontier created by international law, solely for the purposes of jurisdiction, is annexed only to the outer coast of a maritime State which it shortens by cutting across the heads of bays and inlets, thus following what is called the general direction of the coasts”; with one referenceto the “boundary of Alaska” running along the “outer edge” of the Archipelago and another to the “outer coast”, but then with an inconsistent reference back to the British Counter-Case concerning “interior waters” touching upon the lisière including the Behm Canal, Taku Inlet and Lynn Canal (i.e., typical inner waters) (id., at pp. 15, 17, 18, and 20). Thus the US pleadings from the start lacked clarity on an ‘outer line’ argument and treated any such political boundary issue as being peripheral to the central argument in the case. Supra p. 2, at p. 751, para. 34 (emphasis added). Alaskan Brief, at p. 14 (emphasis added). Report, p. 56.

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wherein it was stated that this coast line “(since all arms of the sea not exceeeding six miles, and in some cases more, in width, and all islands are practically treated as portions of the mainland) extends outside the islands and waters between them”; so that the political coast line of southeastern Alaska “does not touch the mainland between Cape Spencer and 55° of north latitude”. These specic lines were then there detailed.36 A second statement there relied on by Alaska was that:37 – The boundary of Alaska – that is, the exterior boundary from which the marine league is measured-runs along the outside edge of the. . . Alexander Archipelago, embracing a group composed of hundreds of islands. When measured in a straight line from headland to headland at their entrances, Chatham Strait, Cross Sound, Sumner Strait and Clarence Strait, by which this exterior coastline is pierced, measure less than ten miles.

The so-called ‘relevance’, however, even of these written US pleadings is limited as such arguments were peripheral to the main boundary issue in the case.38 The other (third) relevant statement stressed by Alaska in its Brief 39 was contained in oral argument of US counsel, Hannis Taylor. This argument was, in this writer’s opinion, fundamentally awed, being based on a misconstruction of the British case (i.e., his own rather than Britain’s (alleged) argument. Thus confusion of thought ensued; and its relevance was even disputed by somewhat hostile questioning of this counsel by the President of the Tribunal.40 However, the US counsel’s oral statement is worth quoting in full(as quoted by Alaska):41 – [The political coastline] is an imaginary line which the law imposes upon the physical coast as a basis [for jurisdiction]. But for the purposes of international law, instead of following all the convolutions and sinuosities of the [physical] coast, it is permitted to go across the heads of bays and inlets and it is in that particular that the rule of international law comes in as to the width of bays and inlets, either 6 or 10 miles. We are not encumbered with that question, because the British Case contends that they must be 10 miles, and we do not dispute it and these outside inlets are 10 miles . . . The minute you establish it . . . , all waters back of it, whether they are waters in the Archipelago. . . or the Archipelago de Los Canarios, of Cuba, they all became, as Hall says, salt-water lakes:they are just as much interior [or inland] waters as the interior waters of Loch Lomand. . . .

36 37

38 39 40 41

Id., at pp. 56/7. Id., at p. 57. In fact similar wording is earlier used in the original “Argument of the United States” in the proceedings (at pp. 15/16). The reference to the 10-mile criterion cited tends to smack of ‘bay’ claims, particularly the reference to – “entrances” and the joining of “headland to headland” – expressions which which usually imply mainland-oriented basepoints. Cf., for example, the British terminology in id., vol. III, Pt. 3 at p. 78. See Report, at pp. 58/9. See above n. 34. Proceedings, vol. VII, at p. 609. Argument of Hannis Taylor, Proceedings, vol. VII, at p. 609. This alleged ‘line’ was also to be later referred to in the case by US counsel J.M. Dickinson (Proceedings, id., at p. 802) (a line “out along the islands”).

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In Alaska v. US (2005), Alaska claimed that “these statements show[ed] that the [US] claimed the waters of the Alexander Archipelago” at the arbitration.42 2.3.2.4 The decision on this issue of the Special Master in Alaska v. US (2005) The gist of Hannis Taylor’s argument seems to have been, then, that “[i]f there is a political coast line outside of that archipelago, there cannot by any possibility be a political coast line inside it”.43 As this writer stressed, however, in his Expert Witness

42 43

Report, at p. 59 (emphasis added). Id., vol. VII, at p. 608 (emphasis added). Hannis Taylor’s motive, then, appears, to have been an attempted quashing of the basic British argument by his invented ‘outer baseline’ argument; i.e., to counter the ‘inner baseline’ argument of Britain, possibly on the supposed theory, it seems, that international law does not admit of a ‘baselines within baselines scenario’; (or at least, presumably despite any British argument, that if there was then any straight baseline system in the area, it might more properly might run along the exterior line of the Archipelago). Thus, in denying that there can be two sets of baselines in such a geographical situation (one internal, one external – “a contradiction in terms” as he described it (Proceedings, vol. IV, Pt. 1, at p. 608) – he treats his argument as trumping the British argument here (the latter being in itself (in his opinion) the equivalent of a baseline claim;and in an intertemporal sense (i.e., judged by the standards of 1825) this is an addedly dubious assumption. Another (but seemingly unstated) motive for Hannis Taylor’s assumption may have been, more globally, to make nonsense of the ‘10 league’ distance aspect on the lisière as such, which on such an hypothesis would have led to a boundary which could never have been intended by the treaty because of the absurdly inappropriate line it would have produced. This was all the more reason for Britain not arguing an exterior line around the islands as it would have made its case quite ridiculous; though, Britain could have raised the ‘perimeter of the archipelago’ issue in a narrower context, namely the meaning of “Ocean” under the 1825 treaty within the wording of the Tribunal’s terms of reference. Some of Hannis Taylor’s own statements in the case evidence that he had wholly (or largely) manufactured the alleged British “outer line” argument for his own (pleading) ends when he admitted that there had been “anomaly” and “confusion” throughout the case, because it was “put down[sic] in the British Argument, but. . . very gingerly and very tenderly,” that there was not only a political coastline outside of the Archipelago, but also a political coast line along the lisière. So that he alleged it was “only by that fact that the muddled sixth question can be explained”. He also referred – as allegedly supportive of his assumption – to the brief British responsive argument that “. . . it [was] not necessary to controvert the allegation that the ‘political coast’ in this region at the present time follows the islands” (id at p. 609 (emphasis added)). It appears from all Hannis Taylor’s ‘back-tracking’ references here that he in fact knew Britain had never made such an assertion here as he was trying to describe it. Indeed the sole basis one can possibly nd for this so-called “admission” by Britain that there was a line “outside the islands” was, to cater for the largely inconsequential possibility that the mainland facing the islands was not (historically) the only United States’ “territory” in the region (id.). It seems clear, then, that despite these bizarre interpretations by the US counsel, Britain had not in fact made any claims to a straight baseline enclosing the Archipelago, but had advocated such lines solely in relation to the mainland coast proper. Indeed in its case (id., vol. III, Pt. III, at p. 79), Britain specically mentioned by name – in total contradiction of Hannis Taylor’s allegation – all the “concrete cases” along the mainland of “inlets” (e.g.,

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Report in the case,44 the US statements in the case were purely for the sake of argument, i.e., made in an attempt to counteract the British argument in this case that the “coast” (i.e., the political boundary) followed an inner line.45 As the US Count 1 Motion stated in the case, “the [US] was simply responding, through the familiar technique, of reductio ad absurdum, to the British arguments”.46 However, in his Report, the Special Master disagreed with this interpretation, and instead agreed with the Alaskan argument on this issue, saying:47 In the quoted statements [in the ABT ], the [US] clearly dened the political coast of Southeast Alaska and explained the character of waters lying behind this political coast line. True, as both parties recognise, the political coast was not at issue in the arbitration; the parties were arguing about how to measure ten leagues from the mainland shore for the purpose of applying the 1825 Treaty. The [US], however, chose to bolster its position by identifying

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Bradeld Canal, Taku Inlet and Lynn Canal) and how their individual closing lines might be drawn. Furthermore the President’s intervention at a crucial stage of Hannis Taylor’s argument on this matter rightly suggests that the US counsel was seen as “going too far”; in that there was “for some purposes a political coast line between the islands and the mainland” (id., vol. VII, at p. 609). What is certain, then, is that Britain continued throughout the case to argue that mainland bays (inlets) alone should be closed without reference to any lines connecting the western islands of the Archipelago. Thus Hannis Taylor’s statements on ‘the outer line’ issue – and the alleged legal bases for it – are seemingly ‘plucked from thin air’, not only regarding the British attitude to the 10-mile bay rule, but also as to the broader British position on the political /physical line from which the 10 leagues inland was to be estimated. As the British Counter-Case stated (at p. 32) in referring to the US argument relating to the political coastline, it was “not important to dwell upon merely verbal questions” (emphasis added). Thus, the British contention may be broadly stated as being to the effect that the word ‘coast’ is physically descriptive of the mainland frontage over against the Russian islands, and the word ‘ocean’ of the sea “ that washes such coast”. In other words Britain totally denied any basis in its own pleadings even here for such an ‘outer line’ claim. See ‘Preliminary Expert Witness Report of Dr Clive R. Symmons on Behalf of the US Federal Government, January 22, 2002’: US Exhibit -I-I, at pp. 92–109. As in Q. VI. (the mainland coast of the ocean, strictly so-called of the lisière – a strip of exclusive Russian mainland coast – was to run no more than 10 leagues inland from and parallel to the “sinuosities” of the coast (Proceedings, vol. I, at p. 30). The US, then, claimed that Q. IV referred simply to the ‘land-water’ interface of the mainland (i.e., that stretching inland), whereas Britain consistently maintained that the 1825 Treaty referred to the political (inner) coastline including across the water closings (i.e., a more coastal line). Lord Alverstone rightly summarised the British argument (id., vol. I, at p. 38) as arguing for a line running “round the heads of the bays or inlets”, i.e., purely a line inside the islands. The US ‘outer line’ argument, therefore, was always based on a purely a hypothetical construct for the purposes of counter-argument. This is supported by Hannis Taylor’s apparent own implication (id., vol. VII, at p. 612) that the “general trend” of the coast here might in fact equally follow (in a baseline sense) the mainland coast! His argument thus matches the allegation of the US members of the Tribunal as to the claimed British ‘lines across inlets’ interpretation. At p. 27 (cited by the Special Master in his Report at p. 59). Report, at p. 61 (emphasis added).

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Chapter 7 what it considered the political coast line in the area. The detail of the quotations shows that that the [US] was expressing a considered analysis of the area, not merely speaking hypothetcially for the purpose of showing a aw in Britain’s argument.

The Special Master reiterated that he did not believe that “the counsel was speaking merely hypothetically for the purpose of showing the absurdity of a British argument”.48 The US Reply Brief on appeal disagreed with the Special Master’s “characterisation of counsel’s statements as expressing an authoratitive position of the [US]”, because counsel “did not purport to make a maritime claim”.49 The plenary US Supreme Court judgment (on appeal by Alaska) of 6 June, 2005, seems to give only lukewarm support for the Master’s interpretation on this issue.50 For in the light of all the countervailing evidence, the Court stated that the “litigating position taken by the US at the ABT Proceedings would at best provide weak support for inland status of the Alexander Archipelago waters, even were [the Court] to accept it as signaling a signicant change from the view expressed by Secretary Bayard’s letter of 1886”; for “there [was] little evidence that the [US] later acted in a manner consistent with this litigating position”.51

3. Historic Status of Waters Fixed under Treaties Where restricted maritime rights claims are imposed by treaty between two or more States, it is possible that this may mark the beginning of an historic waters regime between the parties to the treaty which may later expand erga omnes. However, as in all treaties, interpretative ambiguities can arise over the effect of such a treaty, even for the parties themselves. A good example arose in Alaska v. US (2005). The countervailing principle of the freedom of the seas is sometimes a backdrop to such ambiguity. Strictly speaking, of course, as in the case of international judicial determinations, so also in the case of treaties, only the parties thereto are strictly bound to accept the historic waters status arising therefrom. In the case of the Alexander Archipelago, Britain was, unlike the US, historically granted navigation rights under its bilateral treaty with Russia in any event, on rivers bordering the area (Article 3), which implied Russia could not have claimed erga omnes jurisdiction in all parts of the Archipelago (where by necessary implication Britain would have right to navigate).52 The same interpretation did not hold for the similar treaty with the USA, Article IV.53

48 49 50 51 52 53

Id., at p. 116. Id., at p. 14, n. 6. 545 US 75, at pp. 88–89. Id., at p. 90. On the signicance of the so-called ‘Bayard letter’, see below, Chapter 10. See infra, Chapter 13, section 4.2.1.3. See infra, Chapter 13, section 4.2.1.3.

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3.1 A casestudy: alleged historic claim arising under treaty: Article IV of the US/ Russia Treaty of 1824 and the case of Alaska v. US (2005) Art. IV of the US/Russia treaty granted reciprocal rights to US ships to “frequent” the relevant coasts off Alaska;but only “during a period of ten years”. In the recent US litigation, Alaska eventually attempted to base much of its historic waters claim in the Archipelago on the 1820s treaty background, albeit not in a clear manner.54 This article55 mirrored Article VII of the GB/Russia Treaty of 1825. It was Art. 1 of the former treaty which satised the US’s primary object of securing freedom of navigation and shing off the Russian American coasts;56 but the upshot of the Art. IV ‘10 year’ clause was, for the US, that such interim ‘licence’ ended in 1834.57 The effects of these two bilateral treaties arguably may have had indirect legal effects for other nationalities using the waters of the Alexander Archipelago.58

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See, e.g., Alaska’s reliance on 1825 GB/Russia treaty at the Juneau Hearings, 1972 (supra p. 41, at p. 14). The rst three treaty articles thereof, unlike Article IV of the US treaty (and Article VII of the US/GB treaty) created permanent rights and obligations (see Moore, op. cit., vol. I, at p. 463). And see, generally, J.W. Foster., ‘The Alaskan Boundary’ (1899) 10 National Geographic Magazine, 419, at p. 424;and Moore, op. cit., vol. I, at p. 786)( grant for a 10-year term from the date of signature of a right for the citizens of the two nations to “reciprocally frequent, without hindrance whatever, the interior seas, gulfs, harbours and creeks” on the north-west coast of America). See Moore, op. cit., vol. I, at p. 89. See also Lord Alverstone in the 1903 ABT case (Proceedings, vol. I Pt I p. 40) who merely stated that the provisions of Article VII were “perfectly general”. All the other articles – including Article IV – were skewed solely towards various trade considerations and concessions (see, id., vol. 1, Pt 2, at p. 690). See Wrangell’s report to the Board of Directors referring to Art. IV of the treaty (cited in Proceedings, vol, II, at p. 232) (“the right of frequenting the gulfs, straits, ports and bays included within the limits of the Russian possessions of the North-West coast of America. . . . has ceased for vessels of citizens [of the US] in April of this year”). A similar situation applied to British traders on the expiry of the (similar) ‘10 year clause’ in the GB/Russia treaty (of 1825) in 1835 (see id., vol. II, at pp. 69/70). It seems that some of the treaty provisions were expressly transposed into US domestic law; e.g., Art. V of the treaty (against the selling of spiritous liquors and rearms to the natives) was specically dealt with by US statute of May 19, 1828 (cited by Jessup, op. cit., at p. 305). Professor J. Charney, for example, in his expert witness Report for Alaska in Alaska v. US (2005), alleged (at p. 18) that the publication of these two treaties put “other States” on “further notice that Russia made the claim requiring foreign ag vessels to obtain Russian permission to enter the Archipelago and that the two most interested States accepted the Russian claim”.

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3.1.1 The Article IV wording in the US/Russia treaty, however, seemingly had limited effect 3.1.1.1 As to location Much ambiguity resided in respect of the exact areal scope of the treaty wording in Article IV;59 most particularly, whether the treaty wording covered all the waters of the Alexander Archipelago,60 both the US/Russia and GB/Russia treaties giving the respective Powers reciprocal rights to frequent the interior (inland) seas, gulfs havens and creeks on the relevant coasts included in the Alexander Archipelago for a transitional period. This wording appeared to be, in an ejusdem generis sense, aimed at baylike areas based on the preponderance of such examples mentioned;61 and not at the coastal archipelagic waters generally. Such a limited areal interpretation was seemingly supported (albeit largely from a British perspective) by the dissenting opinion of

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In terms of locational restriction, the Russia /GB treaty was virtually identical (with minor verbal changes); and there seems to be no intended differentiation of meaning between the types of seas covered in both the treaties when mentioning all the “inland seas, the gulfs, havens and creeks” on the relevant coasts as being affected for the purpose of prohibition of “shing and of trading with the natives”. See Moore’s statement (op. cit., at p. 58 ) (“Art. IV of the Treaty. . . [i.e., the GB/Russian one] was taken bodily from the Treaty of the 5th of April, 1824, between Russia and the United States, which, in the same words, granted reciprocal rights in the possessions of the two parties on the ‘north-west coast of America”(emphasis added)). This was the Alaskan argument in Alaska v. US (2005). See, e.g., the Alaskan allegation in its Exceptions (at p. 29) (i.e., on appeal) that a proper study of the record on the wording of the 1824 treaty showed that that the “Russian claim extended to the entire Archipelago”. One early US commentator on the US/Russia treaty, K.W. Stanley, (supra p. 77, at p. 103), asked (regarding Article IV) just what was the meaning of the words “interior seas”, “gulfs”, “harbours” and “creeks” (noting the “same wording” in the Russia/GB treaty); and admitted (id.) that “today these terms have little or no specic meaning”; but he maintained nonetheless that the terms as used and understood (id., at p. 104) in the 1820s applied to “known bodies of water”; e.g., that a “creek” implied a body of water “navigable by trading and naval vessels”. He in fact concluded that “Russia [must have] contended that all the waterways of the Alexander Archipelago were under her jurisdiction and the [US] and [Britain] conceded [sic] to this contention” (id., at p. 106 (emphasis added)). Cf. the attempted interpretation of the word “creeks” by Stephen J in the Australian ‘historic waters’ case of Raptis v. South Australia (1977) ILR 32, at p. 50 (“The word ‘creeks’ is no doubt to be understood as referring to inlets on the seacoast, its primary English meaning, rather than to the, originally colonial, meaning of a small river or tributary”). In 1824 the Russian Foreign Ofce had conrmed that, under this wording, once the 10-year period had expired, Russia had “the power to forbid American vessels to visit inland seas, gulfs, harbours and bays.” See more generally, for example, reference in Moore (op. cit., vol. I at pp. 784/5) regarding US shery treaties of the early 19th century with similar wording, including that of 1818 (“coasts, bays, creeks or harbours”); and the eiusdem generis element in this wording stressing “bays” (id., at p. 784).

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Mr Aylesworth in the 1903 ABT case62 and accords with the viewpoints of other arbitrators in the case on this issue.63 62

63

Arbitrator Aylesworth expressly referrred to the phrase “inland seas, gulfs, havens and bays” in the 1824 GB/Russia treaty. This he interpreted as only applying along the lisière to the “inlets” (Proceedings, vol. I, Pt. 1, at pp. 92/3), explaining (id., at p. 94) that Canning changed the wording “inland sea” to “all the interior seas” (id., at p. 94) at a late stage before the words “gulfs, havens and creeks” as they stood in Art. VII as signed. He seems correct, therefore, in analysing the historical picture (relating to Russian claims from the ukase and later) as being only concerned with “territorial or inland waters” in the various inland ‘bays’ (not the waters of the Archipelago generally), outside of which would be sea areas in a different legal category (see id., vol. I, Pt. 1, at p. 89 (emphasis added)). Cf. the vaguer ‘baseline’ references in the letter from Canning to Londonderry (of 19 February, 1822) saying the (ukase-based) 100-mile zone was “from any part of the coasts and intervening islands. . . ” (id., vol. II, p. 106). J.B. Moore in ‘The Alaska Boundary’, (North Am. Rev (1899) 501, at p. 504) contrasted the “interior seas” 10-year position with the “Pacic Ocean” where the “right of navigation and shing” was “acknowledged [by Russia] unqualiedly and in perpetuity”. Whilst Aylesworth expressly ((id., at p. 90) left out of consideration in his decision in the ABT case, “the islands” (and so implicitly any inland sea status they might have in the context of an actual maritime claim (by Russia) as opposed to the geographical aspect concerned with land boundaries as mostly discussed in the case), he in fact seemingly referred to juridical maritime baselines in connection with the territorial sea in the area of the lisière (“one would have to measure the 3-mile strip of territorial sea water over which the Power owning the lisiere would have jurisdiction” as passing from “headland to headland”). Thus, in referring to the (nalised) Article VII of the GB/Russia treaty in his dissenting opinion, he seemed to interpret it as comprehending only waters crossing (in a straight line) any “inlet”. So that this, in his opinion, included in the 10 year licence to British vessels only these waters along the lisière, implicitly leaving unaffected any waters outside 3 mile limits from such internalised baselines in the waters of the Archipelago itself. Signicantly also (id., vol. I, Pt. I, at p. 89.) he dened the Lynn Canal (with channels not more than 3 miles wide) as “literally one the the ‘mers interieures’ mentioned in Article VII of the [1925] Treaty”, being a land-locked lake of salt water. One of the British counsel in the case, Sir Edward Carson, similarly appears to have understood under the Treaty that “inland waters” were granted to Russia only in the rivers and creeks, not in the archipelagic waters as such (id., at p. 667.). In fact in the 1903 ABT case generally, Britain made a distinction between the “rivers” and “inlets” of the lisière, indicating that as regards “inlets” the rules as to straits applied with a right of passage for all nations (see, e.g., the comment of US counsel, J.M. Dickinson, id., at p. 863). Britain was, of course, granted navigation rights under its treaty, in any event, on rivers (Article 3), which implies Russia could not have claimed erga omnes jurisdiction in all parts of the Archipelago (where by necessary implication Britain would have right to navigate: (see below, Chapter 13, section 4.2.1.3). E.g., of Lord Alverstone, Proceedings, vol. I. Pt. I, at p. 90. As to academic viewpoints on effect of the treaties on the relevant waters, one US commentator seems to have taken a very broad view. For Foster has commented (loc. cit. supra n. 55, at p. 430 (emphasis added)): This ten year’s privilege is inconsistent with any other interpretation of the treaty than the complete sovereignty of Russia over, not only a strip of territory on the mainland, but also of all the waters of all bays or inlets extending from the ocean into the mainland . . . The apparent generality of the above statement must be treated with circumspection. Much turns on the meaning of “interior seas” in the list of potentially treaty-restricted maritime

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In Alaska v. US (2005) the Special Master rightly interpreted this treaty wording in a conned sense, saying64 that it was “implausible that the United States, having just objected to the [Russian] ukase [decree] because it exceeded the acceptable limit to territorial waters, would sign a treaty implicitly acknowledging that Russia had the power to exclude vessels beyond three nautical miles from the entire northwest [Alaskan] coast”; and that therefore a “more reasonable interpretation” was that Art. 4 “recognised Russian sovereignty over bodies of water having the shape of ‘gulfs’ or ‘internal seas’ only if they satised international rules for the delimitation of maritime boundaries.65 Thus the Special Master concluded that any restrictional geographical interpretation of the words ‘gulfs’ and ‘internal sea’ in Art IV of the 1824 treaty would66 contradict the precedent in the previous Cook Inlet litigation where the Supreme Court had held Russia did not exercise “the right to exclude access” to the more northerly Alaskan bay of Cook Inlet. The plenary US Supreme Court took a similar view.67 As it said: The principal problem [with Alaska’s argument] is that the 1824 Treaty by its terms did not address navigation for the purpose of innocent passage, but rather addressed only navigation ‘for the purpose of shing and trading with the natives’. Even on the questionable assumption that the Treaty’s reference to ‘interior seas’ included all the waters of the [Archipelago] and not just waters within 3 nautical miles of the coast of the mainland or any particular island, . . . the Treaty simply does not provide evidence that Russia exerted a right to exclude innocent passage.

3.1.1.2 Treaty wording was also jurisdictionally limited It is noteworthy that the Article IV was put in ostensibly for particular purposes which were then a matter of Russian concern; namely “for the purposes of shing and trading with the natives of the country”, as the abovementioned quotation from the Supreme Court in Alaska v. US (2005) evidences.68 Moore emphasised this aspect when he stated

64 65

66 67 68

areas. One non-legal commentator has read this as meaning only “harbours and other shoreline indentations” (Chevigny, op. cit., at p. 185 (emphasis added)). Okun, another leading commentator on Russian America, distinguishes, even more restrictively, between the “coastal zone” and “inland waters” (op. cit., at p. 86 (emphasis added)), and indicates that the Russian American Company itself understood the treaty to equate “inland waters” with “rivers”, with freedom of navigation being allowed even in this latter instance of non-maritime areas. Report, at p. 27. Id., at pp. 27/8. Cf. Professor Charney’s expert witness Report in Alaska v. US (2005) (at pp. 16/17), alleging that the ukase purported to exclude non-Russian vessels from “all of the enclosed waters of the Alexander Archipelago” (emphasis added). Id., at p. 28. 545 US 75, at p. 84. See above n. 67. Even the Alaskan pleadings in Alaska v. US alleged (Brief, at n. 7, p. 13) a narrow preceding jurisdiction being inherited:namely that the US had “merely continued Russia’s exercise of authority over [the waters of the Archipelago] to protect that country’s trade interests and to prevent illicit trafc in liquor and weapons with the coastal natives” (emphasis added).

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that the 1824 treaty temporarily adjusted “commercial intercourse” only.69 He opined that the 10-year limit probably only applied to trading vessels and not entry of the waters for other reasons, despite, as seen the reference in Art IV also to “shing”.70 In the 1903 ABT case, the narrow interpretation mentioned above seems to have been the British interpretation of the treaty relative to Art. IV (of the US ) and Art. VII (of the British) Treaty.71 It was stated, for example, in the British pleadings that Russia’s territorial rights in any ‘inlets’, “only gave her the power to see that they were used . . . to prevent landing, trading, shing or smuggling”;72 and that “ordinary purposes of navigation” were unaffected. Thus British statements in 1903 relating to the treaty regime stressed that this dealt only with “navigation and trade” and had “nothing to do with the right of innocent passage, which the commercial vessels of all nations might have . . .”; and that the waters of Archipelago became waters where Russia had control for (merely) “scal or other administrative purposes”.73 69 70

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Supra n. 62, at p. 506. Id., at 510. This is reinforced by the fact that it was aimed only at trading vessels entering the specied waters “upon the coasts” (emphasis added). Proceedings, vol. lV, at p. 39. Id., at p. 33. In another signicant statement ((id., at p. 34 (emphasis added)), Britain contended that in the 1820’s treaty regime there was nothing to show that Russia “acquired or desired to acquire in respect of the seas adjoining any further right than such is annexed by international law to the sovereignty of land, or that she obtained or desired to obtain any power to limit their use for the ordinary purposes of navigation”. See also id., vol. II, at p. 65, where the US tribunal members in the 1903 Arbitration stressed the intent of the treaty to protect trade of the Russian America Company as an essential interpretive guide (id., vol. I, Pt I, at p. 51). Such a pre-1825 statement – which clearly separates the question of restriction of freedom of navigation from that of freedom of trade in Russian America – may also be taken into account in interpreting any ambiguities in the later US/Russian treaty of 1824, and in the 1825 GB/Russian treaty. Id., at p. 40; see also id., at p. 46. As regards the truly internal waters of the lisière, i.e., those which Britain suggested as being so in the 1903 Arbitration, it is true that for the sake of argument there Britain did admit that Article VII of the treaty gave the right to frequent there for “trade and shery”; i.e., something “in addition to what was acknowledged by Article I; that is to say, a right to frequent for ten years something which was not ocean”, namely, the “interior waters” (id., Counter-Case of Great Britain, at p. 33 (emphasis added). See also Moore, op. cit., vol. I, at pp. 463 and 892; and Proceedings, vol. I, Pt 2, at pp. 69, 70 (concerning a warning from the Russian Governor that they could “no longer claim trade privileges under the treaty” (emphasis added); and (id., at pp. 240/1) a letter of Wilkins to Forsyth (of 7 September, 1835) referring to “American vessels trading with the Russian settlements on the northwest coast of America” (emphasis added). This trade-oriented interpretation is reinforced, as seen, by Art. 1 of the treaty which provided that subjects of the contracting Powers should be neither “disturbed or restrained, either in navigation or shing” or trading with the natives on unoccupied parts of the coasts. Articles 2 and 3 continued the ‘landbased’ aspects of any continuing prohibition (i.e., visiting any point where there was a “Russian establishment” without ofcial permission from the Russian side or (Art. 3) on the US forming any “establishment” in the coastal area north of 54° 40' latitude. This reected the secondary US aim in negotiating the treaty, namely, as seen, to protect the right of Americans to trade for at least an interim period in Russian America (id., vol. II, at p. 65).

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3.1.1.3 The US attitude at and after the expiry of the 10-year ‘moratorium’ period The US itself seems to have been unsure as to the ambit of the expired clause, after the refusal of the Russians to renew the provisions of Art. IV of the 1824 treaty, in accepting that the right of US citizens to frequent the interior waters for trade and sheries came to an end, notwithstanding Article 1 of the Treaty.74 Thus a juridictional ambiguity resided in a written circular to American sea captains at the end of the 10 year period – a warning notice in the Globe newspaper of July 22, 183575 – specically referring to “those interested in trade”. In May, 1835, the US Government had been asked by Russia to give public notice of the changed conditions, to which US Secretary of State Forsyth replied that an “informal notice” would be given to US captains “through public journals”. Thus it was published (with ofcial US sanction) in the Globe newspaper of the abovementioned date that formal notice had been given to such captains that they could no longer claim such “trade privileges”. It referrred locationally to the “right of landing at all the landing places” and “resorting to any part of that coast” under Art. IV of the treaty (and of frequenting such areas in respect of “shing and trading”), stating that these privileges “within the limits of the Russian possessions on the Northwest coast” (north of 54° 40') had “ceased” for US citizens.76 Thus more general navigational aspects in the waters of the Archipelago were seemingly not then seen as being affected. Indeed, what then appears to have happened was that Russia reverted to the ‘cannon shot’ rule around the Alaskan coasts, as its instructions to its ships then evidenced.77 It is, therefore, evident that resort to such maritime areas for other normally legitimate purposes, such as ordinary navigation, was left untouched by the treaty terms in the

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British argument at the time emphasised the US argument to this effect. See, for example, a then-contemporary letter of Mr Forsyth to Mr Dallas which sought more information on the “precise measures” to be adopted by Russia (on expiry) “in regard to the admission of [US vessels] into the harbours, bays and rivers” on the northwest coast ;and what Russian proposals were relating to US vessels “frequenting the Russian settlements” there (Proceedings, vol. II, at pp. 248, 249 (emphasis added).). Cf. Professor Charney’s, Report for Alaska, (at p. 19) in Alaska v. US (2005) alleging that the US tried to maintain that “the expired treaty based rights only precluded [US] vessels from land in Russian establishments in the Archipelago”; but that Russia claimed to exclude “all vessels from the entire Archipelago absent a right granted by treaty”). Proceedings, vol. ll, at p. 240. Id., vol. II, at p. 240 [(588 ] and id., at p. 69 (emphasis added). At this time instructions (evidencing limited jurisdictional areas) were, for example, given to a Russian warship in March 8, 1835 to select the “bay” of Tongas for a station of enforcement (cited id., vol. II, p. 238), because this bay in the “straits” was where foreigners were entering to trade with the natives. The brig Chichagoff was duly sent to intercept foreign vessels near Tongas and give their masters notice of the expiry of the treaty provisions (cited id., vol. I, Pt. 2 at p. 70). This Russian practice justied the US complaint at the time on lack of clarity regarding Art. IV of the 1824 treaty limits when requesting “more precise” information from the Russians. It is noteworthy that in one of the few cases of an actual reported Russian enforcement within the Archipelago – in respect of the US brig Loriot in August 1836 – the ship was driven away by an armed Russian brig when it had “sought to land” at one of the islands west of Prince of Wales Island “for the purpose of intercourse and trade with the Indians”.

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inter-insular waters – certainly in those which were not normally considered to be truly “internal”. Such ambiguity remained even when, on September 26, 1845 (i.e., a full 10 years after the ‘expiry period’) the US gave “ofcial notice” warning to US vessels against violation of treaty stipulations “by resorting to any point upon the Russian American coast where there [was] a Russian establishment without permission”, nor to frequent the interior seas, gulfs, harbours and creeks upon that coast at any point north of 54° 40' (i.e., in the same areas – including notionally the Alexander Archipelago – as were mentioned in the 1824 treaty).78 It is immediately evident that the same ambiguities as to these sea areas resided here as in the treaty itself. In Alaska v. US (2005), the Special Master agreed with the US federal viewpoint that the notice only indicated US recognition of Russian sovereignty over “the mainland coast”. He noted particularly that the phrase “interior seas, gulfs, harbours and creeks” (as in the 1824 treaty wording) “did not describe “the entirety of the waters” of the Archipelago; but instead only “those bodies of waters having the shape of gulfs, harbours and so forth, satisfying international rules of the delimitation of inland waters”.79 The Special Master also there concluded that the 1845 notice did not “show that all of the waters of the [Archipelago were] interior seas, gulfs harbours and creeks”; and held that the 1845 Notice to Mariners did not show that the US “acknowledged” that Russia had the right to exclude vessels from the waters of the Archipelago.80 It appears, therefore, that no historic title relating to the waters of the Alexander Archipelago generally could be clearly based on any successional claims to Russia arising from the 1820s treaty regime, as these broader waters were not clearly either inlets or, more generally, ‘interior seas’.81

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See id., vol. I, Pt. 2, at p. 72 and vol. II, at p. 250 (emphasis added). The Alaskan Brief in Alaska v. US (2005) (but only in a footnote) implied that Russian sovereignty in the Archipelago was at least resurrected some years after the expiry of Art. IV of the 1824 treaty (“ultimately” recognised in 1845 –the time of an alleged US warning (at p. 13, n. 13.). However, there is no evidence of any attempted assertion of a Russian claim to dominion after 1834 outside the 3 mile limit to the waters of the Archipelago (or indeed elsewhere), years after the Russian abandonment of its ukase-based claim. This isolated US assertion from 1845, is certainly mentioned in the 1903 ABT Proceedings (Proceedings, vol. II, at p. 72; and vol. II at p. 250); and the dating (some 10 years after the end of the moratorium) is at rst glance puzzling( coming almost ten years after the ‘Loriot incident’ where the US contested Russian jurisdiction in the Archipelago), but according to the “Case of the United States” (Proceedings, id., at p. 72), it followed Russia’s refusal to continue the trading privilege or to recognise the claim of the Loriot in 1838. Cf. the overstatement by Foster (supra n. 55 at p. 435) who opined that “with the strip of territory so established, all the interior [emphasis added] waters of the ocean above its southern limit became Russian, and would be inaccessible to British ships and traders except by express licence”. Report, at pp. 37–38. See also id., at p. 126. Id., at p. 126. See the Alaskan Responses to the Defendant’s First Set of Interrogatories (at p. 3, citing Proceedings, vol. 3, p. 1, at 78–80) which seem, in effect, to admit this interpretation (alleging that Britain in 1903 “explicitly recognised all of the deep inlets were inland waters” (emphasis added)).

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It may be added (as seen) that in a more general way, and relative to the Behring Sea, the later nding by the Tribunal in the Fur Seal Arbitration, appears to assume not just from 1821 – but also from the 1824 (and 1825) treaties right up to the time of cession – that Russia had disclaimed any jurisdiction outside Alaskan 3-mile limits.82

82

See the citation in Moore, (op. cit., vol. I at p. 925) of an ofcial afrmation of this position by US Secretary of State, Mr Graham, to Mr White (Minister to Russia) (No. 113, July 14, 189) which cites the relevant passage from the “Paris tribunal” decision. See also the later US/Russia Arbitration where the arbitrator referred to (see Moore, id., at p. 929) “ordinary rules of jurisdiction” pertaining there (semble as then known to international law at the end of the 19th century). Although in 1838, the 10-year privilege was conrmed as unrenewable by Russia and indemnity for the seized US ship, Loriot, refused by Russia, in any event the former 10year privileges were seemingly, according to one US authority at least, restored to the US and Britain in the 1840s by treaty; as Moore conrms the former “privileges were renewed by Art. XII of the Treaty of Commerce and Navigation [emphasis added] between Great Britain and Russia of January 11, 1843” (op. cit., vol. 1, at p. 892).

Chapter 8

PROBLEMS AS TO WHEN AND WHETHER AN ALLEGED HISTORIC CLAIM HAS BEEN MADE EO NOMINE 1. The General Problem The question of when an historic waters claim was actually made seems to have analogies with the ‘critical date’ factor in disputes over land territory.1 In a maritime context, however, this matter had a particular relevance in the Fisheries case respecting when the alleged Norwegian historic claim was actually initiated (seemingly dating from decrees in 1869 and 1889).2 In the maritime context, what Ronzitti aptly dubs as the question of what may be “regarded as the starting point of the process” of historic claim,3 can be problematical; for it entails nding the date when “the historic clock is set

1

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See L.F.E. Goldie, ‘Historic Bays in International Law – An Impressionistic Overview’ (1984) 11 Syracuse Jnl of Intl. Law and Comm., 211, at p. 252. On the matter of “critical date”, cf. in the Fisheries case, the statement by Sir Frank Soskice (Pleadings, 29/9/51 at p. 141) where he uses this phrase drawn from the law on territorial disputes more generally. N. Ronzitti, ‘Is the Gulf of Taranto an Historic Bay?’ (1984) 11 Syracuse Jnl of Intl. Law and Comm., 275, at p. 296.

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running”.4 For example, although Italy in 1977 drew a 60-mile long baseline across the mouth of the Gulf of Taranto and the actual decree specied it as an historic bay,5 none of the internal laws relied on previously by Italy did this in specie; and (allegedly) legal writers and the UN documents “similarly did not include [this bay] among historic bays”6 (see Map 3). 1.1

Lack of mention of ‘historic’ in past claims

In some instances, the word ‘historic’ or an equivalent phrase may appear in a formalised claim in a seemingly retrospective sense; as, for example, in the Soviet decrees relating to the White Sea (Decrees of 1984 and 1985) referred to waters therein being “internal” as “waters historically belonging to the USSR”;7 and Soviet decrees of 1984 and 1985 respecting Peter the Great Bay claim referring to the former decree of the Council of Ministers of July 4, 1957, as “waters of an historic gulf ”8 (see Map 7); and the Gulf of Thailand (by declaration of the Ofce of the Prime Minister Concerning the Inner Part of the Gulf of Thailand (of 22 September, 1959) was claimed to be an “historic bay” over which Thailand has “constantly maintained [such status] from time immemorial.9 Still other claims imply no necessary retrospective status; for example, as in the case of the claim by the Socialist Republic of Vietnam to the Vietnamese part of the Gulf of Tonkin as constituting “historic waters”;10 or are ambiguous in this respect, as, e.g., in the case of the Kenyan claim on June 6, 1969 to Ungwana Bay (otherwise known as Formosa Bay) which was then declared an “historic bay constituting internal waters” in order to “safeguard the vital interests of the inhabitants of the coastal region and to conrm the practice which has always existed”, hinting at a retrospective claim. However, the follow-up Kenyan Territorial Waters Act (No. 2 of 1972) added that for the purposes of Art. 7 of the TSC, 1958, this bay “shall be deemed to be, and always to have been, an historic bay”.11 See also the Dominican Republic claim to Santo Domingo Bay (closing line 22.7nms) and the Bay of Escocesa (45nms), which by Act No. 186 of September 6 1967 are “declared to be historic bays”;12 and of Guatemala to the Bay of

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7 8 9 10 11

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G. Westerman, ‘The Gulf of Taranto: A Brief Reply’, id., 297, at p. 307. See Ronzitti, supra n. 3, at p. 275. Id., at pp. 278 and 279 (but see now Appendix 1). The claim to the Gulf of Taranto was made by Presidential Decree No. 816 of 1977 which mentions closing lines for “natural and historic bays”, and signies specically that Taranto is an “historic bay”, but without explaining the basis for such claim: see T. Scovazzi, in D. Pharand, and U. Leanza, The Continental Shelf and Economic Zone: Delimitation and Legal Regime, Kluwer (1993), 321, at p. 329. See Scovazzi et al., Atlas of the Straight Baselines, 2nd ed., 1989, at p. 49 (emphasis added). Scovazzi, et al., id., at p. 58. Scovazzi et al., id., at p. 60 (emphasis added). The baseline was 59.15nms long. Scovazzi et al., id., at p. 66. Emphasis added. See Scovazzi et al., id., at pp. 34 and 160 (now the bay is included within the later Kenyan straight baseline system of 1979). Scovazzi et al., id., at p. 24.

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Amatique (by Presidental Decree No. 2393 of 1940) (“the waters of the historical bay of Amatique form part of territorial waters”).13 An analysis of the Libyan claim to the Gulf of Sirte as “internal waters” of October 9, 1973 in the note verbale to the UN of 19 October, 1973, evidences no reference to ‘historic waters’ as such (though it is certainly implied), merely stating that “[t]hrough history, and without any dispute, the Libyan Arab Republic has exercised sovereignty over the Gulf ”14 (see Map 5). It has been noted in the Australian context, that in the past some Australian bays – although “mentioned as bays” – were “not marked as historic”15 (this being at a time when Australian practice mentioned widths of both 6 and 10 miles being permissible for closing lines). Some past protests regarding historic claims have homed in on such a specic ‘informational decit’. For example, Japan, when protesting over the Russian claim to Peter the Great Bay,16 specically complained that a past Russian assertion of jurisdiction had not previously referred to the Bay being “historic” as such. In other words, it appears from state practice that even large “bays” have not always, at least originally, been claimed as being “historic”.17 1.2 Lack of clarity as to nature of claim to the disadvantage of potential objecting States Coupled with this matter, of course, is the broader aspect of lack of clarity as to a particular State’s international historic maritime claim, a matter which will be considered further below.18 Edeson makes the obvious point that a claimant State must “authoritatively indicate” an intent to claim certain waters as historic, which he sees as “vital to the success of any [such] claim”.19 This matter was raised by Libya in the Tunisia/ Libya case,20 to the effect that not only were the ofcial baseline maps to Tunisia’s 1973 decree never published or produced to the ICJ, but also (allegedly)21 Libya claimed it was only in the Tunisian Counter-Memorial that Tunisia had asserted “for the rst time” that the line closing the Gulf of Gabes was based on the claim that the bay was

13 14 15

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18 19 20 21

Id., at p. 30. Id., at p. 39. W.R. Edeson, ‘The Validity of Australia’s Possible Maritime Historic Claims in International Law” (1974) 48 Australian Law Jnl., 295, at p. 296 (emphasis added). Cited by Strohl, op. cit., at p. 351. Id. Such a deciency may be understandable when (a non-juridically possible) claim is in its earliest phase, but international law may still require the claimant State to clarify its basis of title at the earliest opportunity. See infra, section 1.3 and Chapter 14, section 1.2.1. Supra n. 15 at p. 302 (emphasis added). Reply of Libya, in Pleadings, vol. 4, at p. 113, para. 30. Id., at p. 114, para. 30. See also the Libyan claim in Tunisia/Libya (Reply of Libya, para. 30) that the ofcial baseline maps to Tunisia’s 1973 decree had never been published or produced to the ICJ (Pleadings, vol. 4, at p. 113); and that (allegedly) (id., at p. 114, para. 30) it was only in the Tunisian Counter-Memorial that Tunisia had asserted “for the rst time” that the line closing the Gulf of Gabes was based on the claim that the bay was “historic”, though neither the 1973 Law or Decree identied the bay as historic (id.).

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“historic” (see Map 2), though neither the 1973 Law or Decree identied the bay as historic. This factor was claimed to be “wholly incompatible with any claim to treat the [Gulf] as an historic bay”; as allegedly, unlike the Gulf of Tunis in the same decree (23 miles across and ofcially treated as a ‘juridical bay’), the Gulf of Gabes was not; and, allegedly, from 1963 to 1973, Tunisia had “openly” treated the Gulf as other than an historical bay.22 1.3

Is explicit mention of ‘historic nature’ of claim legally necessary?

It may, then, be an additional requirement relating to notication of any ‘historic’ claim23 that publication of the claim must specify (in substance or in specie) that it is being made on such an historic basis (i.e., not merely on alleged juridical principles), if only, as seen above, to put interested foreign States on notice of a potentially exceptional claim. In fact, as seen, some State practice bears this out; and some past protests to alleged historic ‘claims’ have articulated this further renement.24 This point was also raised in the British pleadings in the Fisheries case. There, for example, the UK alleged25 that a supposed extract from the 1903 ABT proceedings relied on by Norway was “directed to the general question of ordinary bays rather than to the particular problem of historic waters”; and so it was claimed by the UK to be no evidence of British acquiescence in the Norwegian-type straight baseline system. This factor would also seem to inter-relate to the requisite “publicity” factor (see below, Chapter 11, section 4). Indeed, the US has objected in more recent times to alleged foreign historic waters claims which lack this clarity. For example, in 1991, a note from the US emphasised that a “generalised claim” by Australia to “all” bays and gulfs as forming part of South Australia, “coupled with the persistent failure of the Government of Australia to identify the particular bays as historic when the opportunity arose several times in the 20th century, does not. . . rise to the level of an ‘open and notorious claim’”.26 Thus where excessive closing line claims – e.g., Mauritania to the 22

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26

Id. Scovazzi (op. cit., supra n. 6, at p. 328), in discussing the Tunisian claim to the Gulf of Gabes, stated that in 1973 a system of straight baselines was claimed “sans faire mention dans ses mesures legislatives d’aucune revendication fondée sur un titre historique”; the vast extent of this claim being shown to the ICJ on a map, where historic rights were mentioned. He implies that a last minute classication of a maritime claim as being historic only has limited effect. As he says (id., at p. 328): “[I]l semble préférable de ne pas attribuer une valeur erga omnes à un document qui n’a été utilisé qu’à l’occasion d’un différend judiciaire déterminé”. See also Chapter 10, section 1, below. See above n. 17. Pleadings, UK Reply of 28/11/50 at p. 617 (emphasis added). See also id., vol. IV (UK Counter Case at p. 30); and the UK’s Reply of 18/10/51 at pp. 404/5 (“Boggs gave as a reason for excluding consideration of the Norwegian case from his discussion of general principles, the fact that Norway’s claim appeared to have been commonly accepted as historic waters”; and contra, Norway (id., at pp. 497/498) (allegedly the historic claim was a secondary argument only). See the US analysis of a Report on South Australian Historic Bays, set out in Roach & Smith, op. cit., at p. 38 (emphasis added).

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territorial waters of the D’Arguin Bank – make no mention of the word ‘historic’,27 or its equivalent, in any claim, this would seem to be prima facie evidence against the existence of an historic claim as such; as in the case of the alleged Egyptian claim to the Gulf of El Arab (referred to in Egypt’s response to a 1927 LN questionnaire), where Egypt never ofcially claimed the gulf as “historic”; so that the UN took the view in 1951 that there were no historic bays in Egypt.28 1.4 Related terminological problems in Alaska v. US (2005) over the situation relating to the Alexander Archipelago It was particularly signicant in the Alaska v. US case that at no time had the US ever notied any foreign nation of any historic waters claim in the Alexander Archipelago; and that in the one publicised instance when it could have done – when Norway requested information relating to US internal waters in 1949 – no such notication was then made.29 Thus the public record revealed in Alaska v. US (2005) seemed to show a remarkable lack of any past US historic claim being made to the waters of the Alexander Archipelago, whether by the federal government or by the state of Alaska (until, in the latter case, more recent times). In the US context, past lack of clear ofcial terminology may have exacerbated this matter. It has, for example, been commented that only one of the previous ‘tidelands’ cases – concerning the Mississippi Sound – “involved a clearly stated federal acknowledgment of inland waters status”;30 but not as “historic waters” as such. Thus in the Alabama and Mississippi Boundary case, a 1958 US Brief containing a “federal concession” was commented on by the Supreme Court which, said: “[i]f foreign nations retained any doubt after Louisiana v. Mississippi that the ofcial policy of the [US] was to recognise Mississippi Sound as inland waters, that doubt must have been eliminated by the unequivocal declaration of the inland waters status in an earlier stage of this very litigation”;31 but there was still there ambiguity as to whether this claim was as to ‘historic’ inland waters status as such.32 1.4.1 When was the alleged claim to (allegedly) historic title to the waters of the Alexander Archipelago originally made? The Alaskan Brief 33 alleged that the US “publicly defended” its position on the “inland water status” (note not the historic inland waters status) of the Alexander Archipelago

27 28 29 30 31 32

33

Of 20 January 20, (89nms long): see Scovazzi et al., op. cit., supra n. 7 at p. 42. See Scovazzi, supra n. 6, at p. 329. See below, Chapter 14, section 2.1.1.2. M.W. Reed, op. cit., at p. 327. 470 US 93 at pp. 108/9 (1985) (emphasis added). See M.W. Reed, op. cit., at p. 329, fn 371, who says that there is “no doubt that the federal statements in 1951 and 1958 were not based on any federal historic claim to Mississippi Sound as inland waters” (emphasis added); so that in “all other instances” US states would have to prove such historic title “through activities said to necessarily reect such a claim” (emphasis added). At at pp. 14/15.

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“between 1903 and 1971.” Two possibilities come out of the Alaskan pleadings as to the supposed dating of this “claim” in Alaska v. US (2005), though one was emphasised more than the other by Alaska;34 namely (rstly) that the “United States was not the rst to successfully [sic] assert dominion over the waters of the Alexander Archipelago” but that it “merely continued Russia’s exercise of authority over these waters”. In other words, the rst origins of the alleged Alaskan claim to these waters were seemingly asserted to date back to Russian times. Apart from this (in fact footnoted) reference, there were also isolated indications in the main text of the Alaskan Brief that until 1971, the US federal authorities had consistently taken the position that the waters of the Alexander Archipelago were “from 1867” (i.e., the date of the ‘Alaska purchase’) of “inland status”.35 That is to say, by necessary implication, the waters were of such status from the very date of cession of Alaska by Russia.36

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Brief, at p. 13, fn. 7. The implication in the Alaskan Brief was that the Alaskan claim might predate even the 1903 claim. Although in the early 70s Mr Irving, US Under Secretary of State, indicated he would welcome a statement of “views” and “all relevant supporting information” on claimed historic title to any Alaskan bays, there is no evidence that Alaska responded at the time (see US Archive Ref. 01990-91; see also Ref. 02062 (a State Department letter to Senators Stevens and Inouye (17/7/72) welcoming information on existence of “any historic bays”). It appears that later in 1971 an Alaskan ofcial provided no such further evidence, merely pointing out that notwithstanding the US (federal) position on the Alaskan baselines issue, “the signicance of all [federal] acts in their aggregate is that waters of Alaska [including the Alexander Archipelago] have been treated historically by the United States as waters under their jurisdiction” (emphasis added) (Alaskan Assistant Attorney-General, Cranston (who represented Alaska in the Cook Inlet litigation) writing to senator Stevens (US Archive Ref. 02055 (9/11/71)). Presumably part of the claimed “aggregate” here would be the 19th century record. There is further reference in 1972 to “the strong historical, policy and factual evidence offered at hearings held recently in Juneau”, when some public details were then given on this element of the claim (letter of Senator Stevens to Secretary Rogers (1/7/72) (US Archive Ref. 02069)) (emphasis added)). Interestingly, nothing in the Alaskan Brief in the case specically indicated (see, e.g., pp. 15/16) that the federal government itself has ever made a claim to historic waters as such in the Archipelago (which status was in fact specically denied on the federal side at the Juneau Hearings: see the testimony of Mr Nelson, ‘Juneau Hearing’ proceedings (supra p. 41, at p. 5: 15 May, 1972). Id., at p. 18 (emphasis added). The Brief further impliedly indicated (id.) a successional claim in stating that when, in response to its protests in the early 1970s, the US considered adopting “straight baselines” (under Art. 4 of the TSC), this would “effectively have marked a return to the position the [US] had consistently taken from 1867 [i.e., the date of the Alaska purchase] until 1971” – namely, that the waters of the Alexander Archipelago were inland waters (emphasis added). The term “historic” does not appear to have ever been applied to the waters of the Alexander Archipelago until at least the 1960s. The term appears rst, seemingly, in a memorandum of 1970 (in K.W. Stanley’s memorandum on a “Proposed Sea Boundary for Alaska”, written originally on May 20, 1966 (edited 1970) (US Archive Ref. 01987 – seemingly repeated at Ref. 02011/13) in a letter of the State Department to Congressman Begich (of 20/1/72) and annexed to the ‘Juneau Hearings’ papers in 1972). This claimed that the “waterways of

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Secondly – and seemingly more importantly in the Alaskan pleadings – the Brief alleged37 that the “United States asserted authority continuously” over the waters of the Alexander Archipelago “from at least 1903”, i.e., from the date of the 1903 ABT case. The phrase “at least” seemingly indicated that this latter date was put forward as the more certain commencement of the alleged ‘claim’. In fact in the 1970s – in a Memorandum of 30 August, 1972 – it was alleged that Alaska had “urged that the federal government either use straight baselines to enclose the area as internal waters or assert an historic claim to that effect”.38 It was at this time that, reportedly, Alaska (for the rst time it would seem) submitted “afdavits of ve individuals relating to historic practice regarding foreign shing, particularly in the waters within and off the coast of the Alexander Archipelago”.39 Such lack of early eo nomine characterisation of an alleged historic claim, as in the US/Alaska situation, may be forgiveable at the beginning of the 20th century,40

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40

41

southeast Alaska [were] indisputably inland waters by virtue of historic claim” (emphasis added); but it seems here that ‘historic’ (evident from the context) is use of the word in a broader and looser sense – i.e., essentially in terms of succession of one state to its predecesssor’s extent of (land) territory; and the memorandum in no way recited the traditional requirements for title to ‘historic waters’ as such. The alleged ‘historic claim’ starting date seems originally to have been made vaguely by Alaska itself in 1971, when Governor Egan complained to President Nixon about the Baseline Committee not using straight baselines around the Archipelago, and saying that “[w]ithout consulting the historic record, including the judgment of the Alaska Boundary Tribunal. . . the cartographers have allowed the high seas. . . to invade every historic bay and channel of the Alexander Archipelago. . . more than six miles wide”; and arguing that the straight baseline system – or alternatively, historic claims – should cover all of the water areas inside the Alexander Archipalago” (see Alaska Ex. 8, at p. 30e in Alaska v. US (2005)). The Juneau Hearings (1972) included consideration of the Alexander Archipelago, where the waters of same were described (by Alaska) as being “historic, inland waters” (emphasis added) (Proceedings of the Juneau Hearing, 1972 (see bibliography) at pp. 18, 20 and 21. See also (id., at p. 56), the reference to Alaska’s more general proposition at that hearing that the waters of certain Alaskan coastal areas were in fact “historic, internal waters”. Even as late as 1973, a US Memorandum referred to a request from Mr Stevenson of the ofcial position from the Department of Justice on “legal questions with respect to domestic legal effect of either an historic claim or the use of straight baselines” to enclose the waters of the Archipelago as “internal waters” (set out in Alaska Ex. 8 at p. 30e in Alaska v. US (2005). Id., at p. 16 (emphasis added). Emphasis added. See Alaska v. US, id., Ex. 8, at p. 29e; also the memorandum of August 30, 1972 (the evidence then submitted by Alaska (at Juneau) (admitted to be” not a complete historical record in any sense”) (id., at p. 41e). Alaska, id., at p. 31e (emphasis added). It seems it was only at about this time that US federal ofcial documents made any reference to Alaska “asserting” an historic claim (id., at p. 33e), the word “asserting” implying such a claim being made for the rst time (this was when reference was made (id., at p. 34e) to the Baseline Committee charts amounting to “an abandonment of an historically-established claim, if not an international recognised claim”. See, for example, the tenor of Judge Oda’s Dissenting Opinion in the El Salvador/Honduras case, supra p. 2. See Ex. 7 of Alaskan Brief, at p. 28e. Cf. Alaska’s Brief, at p. 13.

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because arguably then the principles, and indeed, very concept, of historic waters were at a formative stage, as indeed were many of the principles of the law of the sea, such as the rules relating to bays;but in this recent state/federal dispute, the past silence as to terminology – for a major part of the 20th century – on the part of both the US and, indeed, Alaskan authorities – was signicant. Historically this lack of clarity may be partly explained by the fact that if the origin of the alleged ‘claim’ went as far back as at least 1903, it may not then have been clearly “characterised” as being contrary to international law.41

2. At what stage of history must a reference be made to an ‘historic’ claim? It may be evidentially important in proving historic title for a claimant State not only to show the requisite acts of sovereignty, but also, as Judge Oda emphasised in the El Salvador/Honduras case, to have, in effect, asserted a formal timely historic claim in specie. He noted that no evidence had been shown in that case that the littoral States had “asserted a corresponding historic claim. . . and thus proposed for the Gulf a sui generis regime”.42 It has already been noted that the alleged 1903-based claim in Alaska v. US (2005) was only labelled as an “historic” one by Alaska very late in the day, which was, arguably, further strong evidence against the alleged 1903 ‘claim’ ever being considered as “historic”. Similarly, as seen, in Tunisia/Libya, Libya pointed out that the Tunisian ‘historic’ claim to the Gulf of Gabes in 1973, was then “made generally and not in terms of an ‘historic bay’”.43 A logical problem resides, of course, in this whole matter;and that is, because of the international requirement of a lengthy time as to an historic title being in existence, when an ‘historic’ claim in specie is rst proclaimed, no valid such ‘historic’ title may, ex hypothesi, at that stage, exist. It may, therefore, be the case that if the claim is not made expressly retrospective,44 its legal effect can only be prospective, as it is only in the later currency of a (normally exceptional) claim to waters that the claimant State could prove that its title is in fact ‘historic’. This factor in turn brings up intertemporal problems as to the alleged substantive rules relating to the whole doctrine; such as that of when non-acquiescence must be evidenced by the world community:in which case lack of knowledge of the claim being based on an ‘exceptional’ basis may not put other states on notice to protest in timely fashion.45

42 43 44 45

Supra p. 2, at p. 758, para. 46 (emphasis added). See Reply of Libya: Pleadings, vol. 4, at p. 117, para. 37. See above sections 1.1 and 1.3. See infra, Chapter 14. Apropos lack of mention of the word ‘historic’ by Alaska in parts its Brief, it seems almost self-evident that a State which alleges (at a later date) that it has an historic title which goes back allegedly at least a century would have normally typied its claim in the past as such if at the time of its alleged initial claim, international law on the juridical issue was not clear-cut.

Chapter 9

THE INTERNATIONAL LEGAL REQUIREMENTS FOR HISTORIC WATERS/ BAYS 1. The Nature of the International Legal Requirements The basic requirements for proving historic title to waters – formal claim, continuous and effective exercise of relevant jurisdiction, and international acquiescence – as laid out in the UN Juridical Regime – have received the imprimatur of approval in an international legal context – the El Salvador/Honduras case.1 The importance of the aforementioned UN study is also evidenced not only by being repeatedly cited in municipal caselaw, particularly in the US (as seen), but also, for example, by the fact that it has been cited in past diplomatic protests to foreign nations by States such as the US, as, for example, in its protest to Australia against some of that State’s claimed historic bays.2 The various commentators on historic bays and waters are also much in agreement on the requisite criteria,3 but some make the point about lack of clarity over all the 1

2

3

Supra p. 2, at pp. 593/4. See, e.g., Churchill & Lowe who interpret the El Salvador/Honduras decision as a “implicitly” accepting the 1962 UN study guidelines (The Law of the Sea, 2nd ed. 1999, at p. 44). Respecting Anxious, Encounter, Lacepede and Rivoli Bays: see Roach & Smith, op. cit., at pp. 36/7. For example, Bouchez, op. cit., at p. 281; Gidel, op. cit., at p. 651.

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alleged international legal requirements: for example, that matters such as the degree of effectiveness of exercise of jurisdiction, the continuity of the claim, the attitude of third States (i.e., acquiescence) and the matter of ‘vital interests’ remain in question;4 and allege that there is lack of a clear answer in State practice and in the works of learned authors.5 Most commentators, as seen above,6 tend in any case to cite each other and thus to take a synoptic approach as to the international rules. Consequently few past commentators have disagreed with the commonly-repeated ‘rule shibboleths’ thereon, and have in general found the traditional criteria uncontroversial.7

2. The UN Study and Past US Caselaw In regard to the three supposed international legal requirements in the ‘tidelands’ litigation (namely, exercise of authority over the area, continuity of that exercise, and the acquiescence of foreign States) it is noteworthy both the various Special Masters, and the plenary US Supreme Court, have relied “heavily” for such authority on the UN Juridical Regime and have thus provided the fullest discussion anywhere of the rules so as to esh out the bare bones of the international requirements.8 For example, in the Louisiana Boundary case, the Supreme Court, after pointing out – as have many authorities – that the TSC is silent on the issue of international rules on historic waters,9 indicated that therefore “the term [historic waters] derives its content from general principles of international law”,10 where there was “substantial agreement. . . on the outlines of [the] doctrine”. The Court accordingly made express reference to the three factors set out in this UN study as set out above. The same factors have been reiterated in the most relevant recent US caselaw, including now by the US Supreme Court in Alaska v. US (2005).11 In other words, this UN document on historic waters has had an authoritative standing with the US courts – as

4 5 6 7

8 9 10 11

E.g., Scovazzi, supra p. 102, at p. 323. Id., at p. 324. See supra, Chapter 1, section 2.2.4.1. See, for example, J.M. Zimmerman, ‘The Doctrine of Historic Bays: Applying an Anachronism in the Alabama and Mississippi Boundary case’ (1986) 23 San Diego Law Review, 763, at p. 765. Whilst in the North Atlantic Fisheries Arbitration the Tribunal acknowledged the validity of historic bay claims (see Scott, Hague Reports 141, 185 (1916)), Mc Dougal & Burke comment (op. cit., at p. 362) that it was “not too clear in this rst international case, what was regarded as important for recognising a claim to an ‘historic bay’ with (id., at p. 363) “little guidance” regarding the pertinent factors. For example, see M.W. Reed op. cit., at p. 324. See above section 1.2.2. US v. Louisiana 394 US, 11, at pp. 44, 75 (1969). 545 US 75, at p. 81. See previously the cases involving Louisiana, California, Alaska, Alabama & Mississippi, Florida, including Special Master Reports (e.g., Special Master’s Report No. 52 Original (1974) at p. 41 et seq.; also CAB v. Island Airlines 135 F Supp. at p. 1004 (Hawaii District Court) (“at least three factors”)).

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elsewhere – as an accurate statement of the customary international legal rules. As one observer has commented,12 these UN-based “standards” which have been set forth in the past are “also reected in some important municipal court decisions”, including those of the US Supreme Court.

3. Various International Sub-rules Sub-rules can be teased out of the three broad above-mentioned requirements. These, in turn, tend to inter-relate with each other and other facets of the general principles underlying the doctrine. For example, if the alleged ‘exceptional claim’ requirement (as discussed above) is vital to an historic waters claim, this intrinsically inter-relates with the acquiescence requirement inasmuch as this makes the likelihood of an expected protest more clearly called for;13 and it also inter-relates with the timing requirement for any protest.14 Obviously, also, as will be seen, the publicity factor interrelates in several ways with other rules, including acquiescence and effectiveness of exercise of jurisdiction. Bouchez, for example, says,15 as regards the supposed notication requirement, that “in order to provoke an explicit reaction by other States, it is desirable that the claimant State noties its claim to at least the directly affected States”, thus linking the acquiescence requirement directly with this factor. The ‘effective exercise’ requirement in turn inter-relates with the formal declaration/publicity requirement discussed below and will be separately dealt with in detail below.16 For example, US caselaw has made it clear that any effective acts of sovereignty must be publicised.17 This, therefore, further inter-relates with the acquiescence requirement. For example, Special Master Hoffmann stated in US v. Maine (Rhode Island) regarding shing regulations which failed to distinguish between nationals and foreigners, that “lack of enforcement fails to establish acquiescence by foreign States . . . ”; and that the lack of enforcement incidents showed that there was “no

12

13

14 15

16 17

F. Francioni, ‘The Status of the Gulf of Sirte in International Law’, (1984)11 Syracuse Jnl. of Intl. Law & Comm., 311, at p. 321. In similar fashion one US commentator has concluded that the three traditional requirements “are the benchmarks against which the Supreme Court and its special masters have measured historic inland waters claims when they have arisen in American practice” (M.W. Reed, op. cit., at p. 324). See G.G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–54: General Principles and Sources of Law’ (1954, 31 B.Y.I.L. 1), (“it depends on whether the circumstances are such that opposition is called for . . .”) (cited in the UN Juridical Regime, at p. 18, para. 126). See the UN Juridical Regime, at p. 19, para. 131. Op. cit., at p. 258 (emphasis added). The UN Juridical Regime concluded that such views are “reasonable and realistic” (at p. 18, paras. 117 and 119). Chapters 10 & 11. See below Chapter 11; also O’Connell, op. cit., at p. 423 (“[t]he acts must have notoriety which is normal for acts of the State”).

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evidence that any foreign Government was ever informed of the State’s claim of dominion”.18 Such interconnection with the acquiescence requirement is discussed in more detail below in Chapter 14. The time factor also – separately dealt with in Chapter 12 – similarly interrelates with other supposedly relevant issues, such as matters relating to formal claim and effective exercise of jurisdiction; for example, when time begins to run in the claimant State’s favour. For example, the UN Juridical Regime states that time cannot run until “effective and public” sovereignty has been fullled.19 An interconnecting factor in the context of the requirement of a formal and ofcially-based historic ‘claim’ is that if this is evident only from domestic sources, for example, mere domestic litigation,20 then there is a relative lack of publicity which emanates to the international community. It is noteworthy, for example, that the US itself in protesting about past excessive maritime claims has demanded adequate publicity or communication in connection with alleged maritime ‘claims’ being hidden in purely domestic sources. For example, as far back as 1863, the US wrote to the Spanish authorities (when objecting to Spanish maritime limits around Cuba) saying that “[n]ations do not equally study each other’s statute books and are not chargeable with notice of national pretensions resting upon foreign legislation”.21 The matter of geographical uncertainty or inconsistency may also interrelate with the question of other States’ awareness of the alleged historic claim and so with acquiescence (see below Chapter 14.). The very requirement of continuity of claim22 implies a claim having been in existence for a “considerable time”,23 and hence some historicity. This links up with the time factor discussed in Chapter 12. The continuity requirement in turn is interlinked not only with this passage of time requirement, but also with the effectiveness requirement.24 The UN Juridical Regime25 has also rightly opined that the requirement of

18 19

20 21 22 23 24

25

Report, 1983, at p. 14. At p. 18, para. 124. Thus, in a general way, Bouchez mentions (op. cit., at p. 250) that “effective exercise” is important in two respects, namely “with regard to its intensity and its relation to continuity”(i.e., as to whether it is of a “permanent character”) (emphasis added). In the broader context in the Fisheries case, McDougal & Burke comment (op. cit., at p. 366) that the ‘consistency’ factor should not be interpreted “rigidly or technically”, citing the ICJ’s judgment (at p. 142) (a “few uncertainties or contradictions, real or apparent”). Some of the ‘inconsistencies’ as to the alleged historic claim in the Alaska v. US (2005) are dealt with in Chapter 10, section 2. 1. See Chapter 11, section 1. 2. 1. See, e.g., Strohl, op. cit., at p. 355, citing the situation in the Peter the Great Bay claim. See Chapter 12. See the UN Juridical Regime, at p. 13, para. 80 and p. 15, paras. 101–105. Discussed separately below in Chapter 13, section 2. See also O’Connell (op. cit., at p. 433) who links the rst two UN requirements with “the continuous and commensurate” requirements. See at p. 18, para. 120. See also Blum, op. cit., at pp. 188/9 (the “historic” or “time” element “is no more than the sum total of all those considerations which form the components of an historic claim” and is the “probative element” in such claim, e.g., in implying acquiescence (id., at p. 191).

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time inter-relates with the requirement of “international reaction”, i.e., acquiescence. In effect, the ‘time’ and the ‘acquiescence’ factors tend to merge into each other, inasmuch as the longer the claim has been existence the less may be the required degree of acquiescence.26 Conversely, the shortness of period of claim may be compensated for by the speed and extent of foreign state acceptance. Blum, in particular, argues that the time factor is especially relevant in such a latter situation “precisely to the extent that an inference of acquiescence may be drawn from it”;27 and he also views the presumption of acceptance of an exceptional claim being strengthened by the efux of time; and hence an interconnection between two.28 In Tunisia/Libya, for example, it was alleged by Libya that since the Tunisian claim to the Gulf of Gabes was “so recent”, the issue of acquiescence did not arise.29 This factor in turn tends to inter-relate with the factor of effectiveness of enforcement of relevant jurisdiction.30 Added to this, the problem of xing the point from which time ‘starts to run’ – as enunciated in Chapters 8 and 12 – can create ambiguities as to whether certain international requirements have been satised, e.g., relating to a “latecomer” State31 on ‘acquiescence’ aspects. The UN Juridical Regime states on the question of “when” a protest must be made to be effective32 that as “exercise of sovereignty must be effective and public”, time cannot begin to run “until [the specied] conditions have been fullled”. There is thus an inter-relationship on this intertemporal matter as to protest/ acquiescence with the effectiveness and notoriety requirements for a claim; and further interrelationship with the supposed communication and publicity requirements. There is also an inter-relationship of effectiveness principle with the acquiescence and the ‘commensurate jurisdiction’ principle, and the need for consistency.33 In the latest US litigation, Alaska v. US (2005), Alaska in its Brief implied that an historic inland waters claim had to be “consistently” held; and this inter-relates with connotations both of continuity of actual enforcement of relevant jurisdictional attributes as well as, as seen, passage of a sufcient period of time.34 As the Special Master stated in the earlier US case of US v. California35 in a related context, if alleged instances of Californian jurisdiction “did not constitute an assertion of exclusive jurisdiction over [the] waters such as might be the occasion for objection by foreign governments”, then, in these circumstances, “absence of objection from foreign countries cannot be regarded as acquiescence”. Likewise, the US Supreme Court in the Cook Inlet case found that the

26 27 28 29 30 31 32 33 34 35

Id., at p. 15, para. 104. Op. cit. at p. 254. See further below, Chapter 12, section 4. Id. See the Reply of Libya, Pleadings, vol. 4, at pp. 117–8, para. 38. See below, Chapter 13, section 2. See the UN Juridical Regime, at p. 18, para. 124 and p. 19, para. 129. Id., at p. 18, para. 124. See also id., at para. 112. See below Chapter 13, section 3. Brief at p. 18. Report, 1952, at p. 35 (emphasis added). See M.W. Reed, op. cit., at p. 337 (such instances “do not put foreign nations on notice of a territorial claim”).

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“routine enforcement of domestic game and sh regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion”.36

4. Relevant Evidence as to Proving an Historic Claim Strohl mentions in this connection37 “internal legislation, acts of jurisdiction and of government, as well as by declarations . . . by competent authorities” In past caselaw, such as Tunisia/Libya,38 the evidence adduced in written and oral pleadings to attempt to prove (or indeed disprove) historic title has been voluminous. The same has been true in the context of state-federal litigation , as in Alaska v. US (2005). In this case the Special Master made reference, as seen39 to the diversity of the type of evidence there submitted, which involved an intensive troll by the parties of the US archives;both to prove (or disprove) title to historic waters in the Alexander Archipelago. Some of the various types of international documentary evidence have been discussed in Chapter 7 above. The Special Master was also to comment in the Alaska v. US (2005) case that the facts and documents relevant to the issue of historic title began in the 1820s (at the time of Russian occupation of Alaska), extending through the cession to Alaska in 1867 and continuing to Alaska’s statehood in 1959, only ending in the 1970 when the US made “international representations” concerning Alaska’s coastline.40

36 37 38 39 40

422 US 184, at p. 200 (emphasis added). Op. cit., at p. 272 (citing Bustamente). See above p. 4. Report of 2004, at p. 18. Id., at p. 23.

Chapter 10

EXERCISE OF AUTHORITY: THE NEED FOR A FORMAL, CLEAR AND CONSISTENT CLAIM 1. Historic Rights must be Formally Claimed Amongst the inter-related issues arising here is whether the alleged ‘claim’ was made in the appropriate manner. This follows on from the usually-quoted rst essential in the traditional three main criteria for establishing historic waters claims; namely that a past claim to ‘dominion’ of the waters in question has at some time been made. This obviously requires an unequivocal assertion to (historic) title of the particular waters by the appropriate governmental authorities in the claimant State. Past State protests have emphasised this requirement, which ows also from the need for publicity of a claim.1 A good example is contained in the Japanese protest to the US on the arrest and detention of Japanese shing vessels in the Shelikov Strait for alleged breach of Alaskan shery laws, on 3 May, 19622 (“It is our understanding that the Government of the [US] has never ofcially proclaimed this Strait to be an inland water”). 1

2

See W.R. Edeson, ‘The Validity of Australia’s Possible Maritime Historic Claims in International Law’ (1974) 48 Australian Law Jnl., 295, at p. 300, who points out that in respect to a possible Australian claim to certain Southern Australian bays, the probable conclusion is that the vast majority of States were “in reality unaware of it”. Annexed to the Juneau Hearings, infra, p. 124, at p. 38. See also id., at p. 37, indicating that

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There is past US conrmation of a ‘declaration’ being necessary to claim historic waters, including off Alaska. For example, at the hearing before the US Senate Committee on Commerce, on 15 May, 1972 (the ‘Juneau Hearings’), an assistant to the Legal Adviser to the State Department testied that “[w]hile the [TSC] provides an exception from the normal baseline rules for waters which qualify as ‘historic bays’, the [US] has not made, and the charts do not reect, any claim to historic bays off the coast of Alaska”.3 A conventional nation-State oriented “declaration” thus seems necessary to initiate an historic claim. For example, in the early 1940s, when the US and Canada were considering possible historic waters status for the Dixon Entrance, both States considered then that a formal “declaration was necessary for this purpose in this area of the Archipelago”,4 possibly by a treaty provision that would start time running for the purpose.5 Some so-called historic claims to waters have neglected to comply with such a formality, or have at least neglected to supply with a bare ‘declaration’ the reasons for the historic claim. For example, Scovazzi points out that there was no ofcial declaration regarding the Italian claim to the Gulf of Taranto, wherein the justications for the claim to historic title were explained. Thus, the US protest instructions at the time indicated that the US considered that the Italian claim “may not have been a valid historic claim when rst announced”.6 1.1

Relevance to Alaska v. US (2005)

The ‘formal claim’ aspect had particular relevance to this US/Alaska dispute, as the so-called US ‘claim’ to the waters in the Alexander Archipelago in the 1903 ABT

3

4

5

6

Alaska seems to have thought that prior to the establishment of the provisional baselines in the early 1970s, no State had protested. Mr Nelson. He then recited the three traditional requirements for historic bays: (id., at p. 5, emphasis added). It may (as seen in Chapter 8) also be a requirement relating to notication that the ‘claim’ must specify (in substance or in specie) that it is being made on such an historic basis (not merely on alleged juridical principles), if only to put interested foreign States on notice of a potentially exceptional claim. The Alaskan Brief in Alaska v. US (2005) (at p. 13) emphasised that “specic assertions of the waters’ status are critical in evaluating a historic claim title” (emphasis added). It then cited the 1903 ABT case, wherein it alleged “several unequivocal declarations” were made by the US. Cf. the Special Master’s general comment in his Report in US v. Alaska (1996) that “no particularised claim to [certain] areas [of Alaskan waters] has been made” (Report of March, 1996, at p. 52). US embassy, Ottawa, communication to the US Secretary of State on 1/10/43: US Archive Ref. 00461 (emphasis added). DOS memorandum of 3/5/40 (US Archive Ref. 00357). Furthermore a letter at that time from the US embassy, Ottawa, to the DOS (of 5/5/43 (Ref. 00423)) mentions the eventuality that “either Government [might] hereafter declare that the doctrine of historic waters is to be applied to any part of the waters contiguous to the coasts of Alaska or British Colombia” (emphasis added), thus incidentally implying that Canada – a neighbouring State – was not aware of any declaration having been made previously to this whole area by the US, including the Alexander Archipelago. T. Scovazzi, in D. Pharand, and U. Leanza, The Continental Shelf and Economic Zone: Delimitation and Legal Regime, Kluwer (1993), 321, at p. 329.

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proceedings only came about, as seen, in the most backhanded manner – namely, for essentially extraneous purposes during hypothetical argument in the course of international arbitration. The matter was, in the opinion of this writer, only raised opportunistically as a legal argument, within the Tribunal alone, to counter a supposed British argument in connection with where the relevant treaty shore ‘line’ ran across the mouths of the inner headlands(bays) of the Archipelago. Such a scenario arguably amounted to no governmental ‘claim’ at all.7 There was, therefore, at this time (in 1903) arguably no US ‘declaration’ of same (i.e., “unequivocal declaration” as alleged in Alaska’s pleadings in Alaska v. US (2005)) or, indeed, claim, as would be expected in the case of typical historic waters situations, largely because of the unusual locus of the alleged claim. The Special Master in Alaska v. US (2005) seems to have adverted to this underlying problem8 when he 7

8

US authority would, despite this, seem to indicate that pleadings before international tribunals – on peripheral issues at least – would not be considered to be a ‘declaration’. For example, Jessup in discussing US counsel Root’s statements before the later arbitral Tribunal in the North Atlantic Fisheries case relating to prescriptive title to bays (i.e., historic bays) believed that he was arguing that “establishment of such a claim depends upon a denite assertion” (op. cit., at p. 372) (emphasis added). Although it may be that the 10-mile closing lines ‘argument’ on the outer coastline of the Alexander Archipelago did appear in the original US written pleadings, i.e., in the form of written briefs (“Argument for the United States”, seemingly rst mentioned at pp. 14–18 of this), the fact remains that much of the elaboration of them in the 1903 case was contained in the (as seen) hypothetical and essentially irrelevant oral argument of the US counsel. This characterisation, therefore, should not have been seen as a national declaration on the issue, as alleged by Alaska. See the Supreme Court’s assertion in the Alabama and Mississippi Boundary case of “unequivocal declaration” (470 US 93, at pp. 108, at p. 109) (“[i]f foreign nations retained any doubt after Louisiana v. Mississippi that the ofcial policy of the [US] was to recognise Mississippi Sound as inland waters, that doubt must have been eliminated by the unequivocal declaration of the inland water status of [the Sound] by the [US] in the earlier phase of this very litigation”) (emphasis added). In US v. California the US Brief argued more generally that (under Art. 4 of the TSC) that because “straight baselines are purely articial and discretionary, they never have any existence or effect until formally promulgated, as Norway had done in the Fisheries case” (at pp. 158/9). This matter, then, is analogous to the requirement of international law in the context of a claim to territory or to imposition of straight baselines under the LOSC; and it may be noted that Art. 10(6) of the LOSC which exempts ‘historic bays’ from the specic provisions of Art. 10 itself on the ‘bay’ rules, does not clearly exempt a claimant of an historic bay from the separately-stated ‘publicity’ rules in Art. 16 which relate to bays. Report, at p. 116 (emphasis added). As regards the need for an official nation-based “claim”, see, for example, in the 1903 ABT case US counsel’s (Hannis Taylor’s) assertion about a political coast line being “established” by a country “as against foreign nations” (Proceedings, vol. VII, at p. 611 (emphasis added)). The word “established” as used here seems to imply an ofcial governmental act, not an obscure argument in the course of pleading from an agent of an allegedly ‘claimant State’ during the course of litigation. It seems he was not describing a then-existing US claim at all (i.e., an intention to exercise sovereignty), but was, at most, opportunistically ‘borrowing’ the then-alleged British practice (of enclosing ten-mile rather than six-mile wide bays), in an entirely ad hoc fashion, purely to suit his ostensibly hypothetical argument in the case – addedly hypothetical because immediately prior to this litigation, the US seemingly adopted a 6-mile bay rule.

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asked himself whether statements made by US counsel before an international arbitral court “are a legally sufcient assertion of authority to establish a historic waters claim”, as the US in their pleadings9 had argued that “government arguments in arbitral or judicial proceedings do not sufce to establish an assertion of sovereign authority”. He decided, as seen,10 against the US argument here, but only on the narrow basis of previous domestic US precedent allowing same in the Alabama and Mississippi Boundary case,11 adding that the Supreme Court in that case had “not only relied on assertions by counsel in a legal brief, but also indicated that foreign nations should have taken notice of the brief ”. The Supreme Court in Alaska v. US seems to have taken a similar view to the Master on this matter, when saying that “[a]t best, Alaska’s submissions . . . establish that the [US] made one ofcial statement” in the 1903 Arbitration describing the Alexander Archipelago waters “as inland”.12 It can be justiably argued, however, that, in this instance, there were no “specic assertions” by the US itself “arising from the mere arbitral proceeedings” (as alleged by Alaska in its pleadings) in the appropriate sense as required by international law.13 1.2

By competent organs of State

The announcement of a ‘claim’ must have been done by the appropriate organs of the State concerned. As seen, Strohl mentions in this connection,14 inter alia, the need for “declarations . . . by competent authorities”. The UN Juridical Regime says, more generally,15 that the acts “must emanate from the State or its organs”.16 Even if

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14

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Count 1, Reply, at pp. 9–10. Report, at p. 117. See above Chapter 7, section 2.3.2.4. 470 US at pp. 107–109. 545 US 75, at p. 91 (emphasis added). See the allegation in the Alaskan pleadings that the US had made a “claim” which was later “conrmed” in a 1964 brief ” to the Supreme Court, wherein its Brief (at fn. 15) indicates that even if the stated policy position was a mistake “the key point [was] that the [US] characterised the waters of the [Alexander Archipelago] as inland, not the stated rationale for that characterisation”. Op. cit., at p. 272, (quoting Bustamente, The Territorial Sea ((1930) at p. 100) (claims must be asserted through “internal legislation, acts of jurisdiction and of government, as well as declarations . . . by competent authorities”). He does not mention declarations by domestic courts as such. See also Bouchez (op. cit., at p. 238) who requires there to be an “explicit claim à titre de souverain on the part of the competent authorities of a State” (emphasis added), such as by legislative act or decree. Op. cit., at p. 15, para. 95 (emphasis added). Cf. Bouchez who mentions (op. cit., at p. 238) governmental decrees regulating appropriate jurisdictional aspects; and Pharand (The Law of the Sea of the Arctic, 1973, at p. 107) who points out that normally the act of exclusion of foreign vessels is “preceded by national legislation” to this effect. Thus, normally publicity would emanate from State legislation or decrees (“a legislative declaration of jurisdiction” as stated in US v. California, 381 US 139, at pp. 174–5 (1965)). Thus acts of private individuals will be insufcient. See, for example, the Reply of Libya in Tunisia/Libya, Pleadings vol. 4 at p. 114 (para. 31) (“A State must assert a claim to full sovereignty that is supported by acts of State rather than those of private individuals”; and the

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State organs are involved, their actions or statements must be formal. For example, in Alaska v. US (2005), the Special Master also stated, in relation to a letter from a Canadian ofcial, Professor Dall, to Secretary of State Bayard (which “unambiguously” showing that he “and a Canadian ofcial believed that the [US] could exclude foreign vessels from some navigation routes through the waters of the Alexander Archipelago”), that he agreed with the US federal categorisation of this evidence as being merely “informal discussion by two non-lawyers, hired for their scientic expertise, [which did] not sufce to establish historic internal waters”.17 1.2.1 Relevant ofcial organs Normally the historic claim would emanate from a State’s department of government responsible for foreign affairs. O’Connell, for example, implies the necessity for true governmental action when he states that: “[n]ormally a public act, proclamation or legislation, will be required”.18 On the other hand, conrmation of a claim by any highlyplaced ofcials may sufce for this purpose. It is, for example, implicit from the Special Master’s Report in Alaska v. US (2005) that a later published article in a commercial journal by a highly-placed ofcial may be evidence of an historic claim.19 The related idea that an historic claim should ideally (and perhaps wholly) emanate at least from the executive branch of government is indirectly, supported by statements in past US ‘tidelands’ cases. This principle was in effect implied by the Supreme Court in a federal situation as in the Alabama and Mississippi Boundary case; to the effect that a claim to historic waters can be maintained only if endorsed by the United

17

18

19

“claimed waters must be treated as internal waters evidenced by State conduct to that effect”). Cf. the oral pleading of R.J. Dupuy for Tunisia, Pleadings, vol. 4, at p. 458 ((“des activités privées de la part de personnes qui vivent sous le contrôle [des] autorités publiques”). Report, at p. 115. Other examples given in the Report were (id., at p. 79) the US-Canada ‘A–B line’ negotiations, in respect of which the Special Master concluded that whatever the ofcials working on drafts may have agreed, their views did not “necessarily reect the position of their governments”. Similarly an allegation by Alaska (id., at pp. 80–82) that a memorandum of Boggs in 1944 considered all the northern waters of the Archipelago as “inland”, was dismissed by him for the additional reason that “Boggs could not speak for the [US] government by attaching informal comments to a proposed convention that the [US] ultimately never entered”. He also opined (id., at p. 125) regarding a US State Department Legal Adviser’s statement in 1972 (that the State Department “understood from Coast Guard ofcers that no right of innocent passage has generally been accorded in the Alexander Archipelago”) that this document was of “little, if any, value” because, inter alia, it relied on “informal statements made by unknown Coast Guards ofcers”. Also (id., at pp. 99–101), referring to a US federal allegation that the “Pearcy charts” (see below, section 2.2.3.1) were irrelevant, the Special Master agreed that the US “did not adopt” these charts (id., at p. 99); and (id., at p. 101), he concluded that the letters written by US ofcials in relation to the charts “when combined with other evidence” did not sufce “to demonstrate the legal requirements for historic waters”. Cf. the allegation in Tunisia/Libya in the Libyan Counter Memorial (Pleadings, vol. 2, at p. 190, para. 110 (no Tunisian legislation reecting sedentary sheries sovereignty)). As in the case of the article in 1899 by J.W. Foster in the National Geographic, supra, p. 93, n. 55, (see Report in Alaska v. US (2005), at pp. 52–53).

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States.20 Similarly Special Master Armstrong in US v. Louisiana21 gave, as one reason for dismissing a chart as evidence of historic claim in that case, that it had been “utilised by the Supreme Court for purposes of its opinion [on the straight baseline issue], and not by any executive or other branch [of the US] government having to do with foreign affairs”. 1.2.1.1 Sufciency of acts by component-state ofcials, rather than federal ofcials, in a federal entity dispute over historic waters In a federal State litigation context, the assertion of dominion – in the form of a ‘claim’ – may have added complications compared with that concerning a unitary State. One US commentator has stated nonetheless that American practice suggests that the ‘claim’ can be proven in two ways, namely by a “clearly stated federal position that the waters are part of its territory, or there may be a history of ofcial actions that are consistent only with the existence of such a claim”.22 The reference to “ofcial actions” would seem here to relate essentially, but not exclusively, to those of the federal23 governmental authorities.24 20

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394 US 11, at p. 29, citing US v. California (381 US 139, at p. 175). In a broader domestic context it was said in the Louisiana Boundary case to be “inappropriate” for a Court to “review or overturn” a considered federal “decision [by semble the branch of government responsible for foreign policy] . . . not to extend its [maritime] boundaries to the furthest extent consonant with international law” (id., at p. 73 (emphasis added)). Report of July 1974, at p. 10 (emphasis added) (referring to US v. Louisiana (202 US 1(1906)). Past US caselaw on historic waters has implied the need for federal government announcement of straight baselines more generally, and have also indicated the necessity for a true government-based assertion of maritime zones. In US v. California, for example, it was stressed by the Supreme Court that the choice under the TSC to use straight baselines “for determining inland waters claimed against other nations is one that rests with the Federal Government” (381 US 139, at p. 168 (emphasis added)). Thus, past US tidelands caselaw generally seems to also imply a necessity for a federal ofcial endorsement as well as adequate declaration of same. M.W. Reed, op. cit., at p. 327 (emphasis added). On the related problem of exercise of jurisdiction by non-federal state ofcials, see infra, Chapter 13, section 2.1.1. US judicial statements tend to indicate a lower priority for mere State assertions. For example, in US v. Louisiana (394 US 11, at p. 76 (1969)), the Supreme Court said that “[t]he actions of local governments, if not repudiated by or inimical to the interests of the national sovereign” could be “assertions of dominion against other nations”; and that “claims to historic title have been based in part on such actions”. The phrase “in part” is to be noted here. So if mere state actions – not opposed federally – amount to effective enforcement by international legal standards, they may vicariously sufce to show US historic title. See Special Master Armstrong’s words in the Alabama and Mississippi Boundary case (Report, 1984, at p. 55) (“the activities of the State in the Mississippi Sound are not of a nature that the [US] could rely on in advancing a claim opposed by a foreign nation” (emphasis added)). See also, on this theme, the US “two-way” argument in US v. Louisiana (394 US 11, at p. 76), to the effect that certain exercises of authority by Louisiana “would not be relevant to a claim of title vis-a-vis another nation”, though the US national government could, if it chose “rely on State action to support its own claim as against other nations” – a sort of optional ‘vicarious action’ concept. See, infra, Chapter 13, section 2.1.1.

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Decisions on historic title by municipal courts in the claimant State

1.3.1 The legal effect of a judicial nding as to historic waters of a domestic court Even a previous decision of a municipal court of high standing may, in appropriate circumstances, have almost the same ‘objective’ precedential effect as an international decision in concretising historic title.25 In a federal system, such as in the US, undue weight may be given to previous domestic caselaw as evidence of same. McDougal & Burke rightly emphasise, for example, that the US historic claims to Long Island Sound and Monterey Bay are based on decisions of local tribunals only.26 Such domestic caselaw was cited most recently in Alaska v. US (2005), regarding the case of Organised Village of Kake v. Egan,27 where the Special Master accepted that the “whole history” of this US litigation indicated that both the trial judge and the Supreme Court of Alaska had previously determined that the waters of the Alexander Archipelago were inland waters in the legal sense.28 However, in terms of the “legal signicance” of this domestic precedent, he concluded that the Supreme Court of Alaska had only given brief consideration to the “historic inland water” issue in this case – in fact no more than a “single paragraph”; so that for this – and other reasons – he found that it was “not persuasive”.29 In a more international setting, Norway in the Fisheries case,30 inter alia, included, as a ‘make-weight’ to its maritime claims, some relevant acts in municipal law, including 25

26 27 28 29

30

See also supra, Chapter 7 and the 1964 federal Brief in US v. California (see section 1.4.2.2 below). See, op. cit. supra, p. 114, at p. 360. Report, at pp. 89–96. Id., at p. 96. Id., at p. 123, like the California Supreme Court’s decision in Stralla: see section 1.4.2.1 below. As O’Connell states (op. cit., at p. 429), referring to the US tideland case context of “judicial decisions in which Californian bays had been held to be inland waters”, “only two were mentioned and they were dismissed on the ground that judicial decisions are not assertions of dominion” (emphasis added). In the Alabama and Mississippi Boundary case (Report of 1984, at p. 54 (No. 9 Original)), an international litigation situation was seemingly treated as being in a superior category – namely the UK argument before the ICJ in the Fisheries case relating to the 1903 ABT case; but, on the other hand, a US Supreme Court decision seems to have been domestically viewed in the case as equivalent to those before an international tribunal, when the Special Master opined that the US had “exercised authority over Mississippi Sound by the position which it has taken in international affairs” including “before the Supreme Court of the United States” (and also in Congressional Hearings: id., (emphasis added)). Also in the Alabama and Mississippi Boundary case (id., at pp. 50, 51) the Special Master reinforced his opinion by citing a truly international case, the Fisheries case; and concluded from this (id.) that even in 1951 “the position of the [US] was well known in the international community, and had been since the Alaskan Boundary Arbitration (1903)” (emphasis added). This judicial statement must now be seen in the light of what was said in US v. Alaska in 1997 by the Supreme Court (521 US 1, at pp. 11–22). In Alaska v. US (2005) (Report at pp. 115/6), the Special Master, in referring to the fact that in the California case, California had referred to its constitution as declaring jurisdiction over certain indentations “as historic bays”, and “a few state court decisions”, implicitly found these to be insufcient. Pleadings, vol. 1, at p. 568: cited in the UN Juridical Regime, at p. 14, para. 93. Norway relied

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its (criminal) “judicial decisions” (as well as governmental regulations and administrative measures etc.). In this instance the judicial decisions were essentiallly interpreting such latter (governmental) regulations, rather than ‘claiming’ jurisdictional rights in the rst instance. Indeed, usually domestic legislation will in any event lie behind a judicial decision; and this in its own right may found the origins of an historic claim. For example, in the case of a municipal court decision on historic status, as was rightly pointed out by Britain in the Fisheries case, explaining the US Alleganean case,31 it was not the decision of a US court as such there which was the basis of the United States’ claim, but rather other governmental acts and international acquiescence. In principle, therefore, a judgment even of a domestic court of standing, may in retrospect be interpreted by other nations as the equivalent of an historic State-based claim, particularly where other States’ nationals are involved in the litigation, in which case there may also be sufcient publicity of an historic claim.32 For example in the North Atlantic Fisheries case,33 the Tribunal referred to the exceptional position of Conception Bay “which was provided for by the decision of the Privy Council in the case of Direct United States Cable Company v. the Anglo-American Telegraph Company, in which decision the United States have acquiesced”. To such a domestic judicial decision on a bay’s historic status, therefore, a concerned State’s reaction (e.g., a neighbouring State with shery interests there) may be of vital importance from an international legal point of view. Strohl, for example, makes the interesting observation that after the Conception Bay case was decided by the JCPC in 1877, it did not appear that the US (“the State of incorporation of the losing rm in this case”) availed itself of the privilege of “diplomatic protest following on this decision”.34 Somewhat perversely, it may be individual US states’ action in a domestic litigation context which forces the US federal Government to reveal its ofcial position as to an alleged historic claim. As, for example, a federal witness pointed out at the Juneau Hearings,35 one of the US-Alaska tidelands cases, the Cook Inlet litigation, “presented a situation in which the Federal position had to be stated clearly and publicly, something which [the US] had in fact avoided before”. Thus a clear US historic claim may only crystallise as such once a federal-state dispute has arisen and the US judiciary then so positively determine.

31 32 33

34 35

on the domestic cases of Lord Roberts (1911) and St Just 1934 (Pleadings, Counter Memorial of 31/7/50, at p. 543), but in this instance essentially in the context of alleged effective enforcement of a pre-existing ‘claim’. Pleadings, Reply of 28/11/50, at p. 616, para. 441. See below Chapter 11. See Hague Arbitration Cases 134 (Wilson ed., 1915), at p. 188 (emphasis added): cited in Jessup, op. cit., at p. 378. Op. cit., at p. 279 (emphasis added). Mr Nelson at the ‘Juneau Hearings’ (Hearing before the Committee on Commerce, US Senate, 92nd Cong. 2nd Session on Provisional US Charts Delimiting Alaskan Territorial Boundaries, May 15 1972: Serial No. 92–69, at p. 11.

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1.3.2 Ofcial statements or pleadings in domestic caselaw may be insufcient to establish an historic claim Statements made in federal pleadings in domestic courts – in similar fashion to those made before international tribunals – may be evidence of the federal State’s maritime policy.36 For example, in the Alabama and Mississippi Boundary case, the Special Master seems to have equated a claim before a US domestic court as being similar to that before an international forum; as in his Report he asserted that the US had “exercised authority over Mississippi Sound” by the position which it had “taken before the Supreme Court”; and he seems to have regarded the US position over Mississippi Sound taken before the Supreme Court as one taken “in international affairs”.37 It may be noted also, by way of analogy, that in US v. Alaska (1996), the State of Alaska put “considerable emphasis” on statements in US federal briefs and noted “particularly that the [US] State Department approved the briefs before they were led”.38 However, even so, the Special Master in the latter case said he could not give these briefs “much weight”.39 Such domestically-contained statements may not, in principle at any rate, amount to ‘declarations’ of historic title in themselves in international legal terms, most particularly where the ofcial pleading differs from a traditional ofcial stance taken by that State in foreign affairs;40 and as will be seen,41 such statements may in any event not give sufcient publicity of the alleged claim to other States, as the Special Master pointed out in Alaska v. US (2005)42 regarding foreign nations’ lack of cognisance with US Supreme Court authority regarding “domestic boundary disputes”. As a Special Master stated previously (in US v. California in respect of the so-called “Stralla

36

37 38 39 40

41 42

See, for example, the Report in US v. California, where the Special Master said that “[i]n 1903 the [US] took the position in the Alaska Boundary Arbitration that a ten-mile rule for bays is proper” (Report, No. 5 Original, 1951, at p. 19 (emphasis added) (see US v. Alaska (1996), Report at p. 117). Cf. the Cook Inlet case (422 US 184, at p. 203) (the “line claimed by the [US]” (emphasis added)); and the US 1964 Brief in US v. California at p. 107 (“there is no justication for California’s assumption that the [US] was claiming longer lines [than 10 miles in the case]” (emphasis added). There is past precedent that a federal brief may be evidence of national US policy to outside States insofar as its amounts to a “public acknowledgement of what constitutes US “inland waters”, even if such a concession is not binding in domestic legislation. This was so held by the Special Master and Supreme Court in the Alabama and Mississippi Boundary case (521 US 1, at pp. 11–22). Report, 1984, at p. 54 (emphasis added). Report of March 1996, pp. 112, 113 (emphasis added). Id., at pp. 113 and 114. See, e.g., the Report of the Special Master in Alaska v. US (2005) (at p. 124, fn. 36): If the [US’] express support for the position that certain waters are inland waters in a case squarely presenting that issue, can be later disregarded, then the [Supreme Court] similarly should disregard a misstatement by the [US] in a case not concerning the waters about which the misstatement was made. See infra, Chapter 11. Report, at pp. 117/8.

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brief”)43 the “suggestion in the [Stralla] brief that the boundaries of the State of California embraced the waters between the mainland and the outlying islands was no more than a caveat” and “could not . . . be regarded as an assertion of right that could have any repercussion or effect in [US] international relations”.44 The implication of this is that in such state/federal litigation, there exists in such an internal dispute a different situation from a true nation State dispute.45 Arguably it seems, then, that a clear pleading from ofcials in a domestic case could be evidence, in appropriate circumstances, of an historic waters ‘claim’ by a federal State internally, though initially it may be unlikely to pass international legal tests for historicity, and so be recognised internationally. For example, in Alaska v. US (2005), the Special Master accepted the Alaskan argument that, based on the Alabama and Mississippi Boundary case precedent in 1906 (wherein the court had accepted Mississippi Sound as inland waters) even the “assertions of counsel” could be relied on,46 despite the fact that the countervailing general US federal argument47 was to the effect that “government arguments in arbitral or judicial proceedings as a matter of law do not sufce to establish a historic waters claim”. 1.3.2.1 The ‘Stralla’ Brief In the Californian Stralla case, US counsel had purported to be acting by direction of the Attorney General of the US “and in the name and in [sic] behalf of the United States of America”48 – in an amicus curiae brief there supporting California, particularly concerning recognition of Conception Bay as inland waters under a broad interpretation of the headland-to-headland rule rather than historic title. The Special Master in US v. California later concluded that although California had since relied “very much” upon this brief, he could not accept it, as “the position taken in that brief [was] squarely in conict with the traditional position of the [US] State Department in [its] international relations”.49

43 44

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46 47 48 49

Report, October 1952, at p. 37 (emphasis added). Cf. McDougal & Burke, op. cit. at p. 360 (emphasis added), saying that as to Delaware Bay, the Attorney General’s opinion on this, as it was given at a time when there was (allegedly) “not the slightest notion of historic bays or of any limitations on historic bays”, the “inuence” of his opinion was derived from “subsequent interpretation and not from any contemporary indication that France and Great Britain felt obliged to recognise an established historical title”. The implication here is that such statements made in judicial proceedings do not in themselves amount to ‘concretisation’ of an ofcial US claim. This has been said to be the case even if the ‘claim’ was not disputed then by either State: Swarztrauber, op. cit., at p. 93. See also his statement that, as in past US domestic cases, the “assertion of right by the State of California in the courts did not constitute an assertion of exclusive authority over these waters such as might be the occasion for objection by foreign governments . . .”; thus “absence of objection from foreign countries cannot be regarded as acquiescence in the position of California” (nor was US federal silence to be interpreted as “concurrence” in its foreign relations): Report, supra n. 43, at p. 35 (emphasis added). Report, at p. 117. Id., at p. 116. US v. California, Special Master’s Report, October 1952, at pp. 35, 36. Id., at p. 36.

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1.3.2.2 The Alaskan allegation in Alaska v. US (2005) and the US Brief in US v. California (1964) The 1964 Brief in US v. California stated that no right of innocent passage was claimed as to a strait leading only to internal waters, such a strait being treated as a “bay”,50 of which one example there given was of the “straits leading into the Alexander Archipelago”. The Alaskan Brief in Alaska v. US(2005)51 treated this part of the federal brief 52 as evidence that in 1964 the US “reiterated its stance” on the status of the waters of the Alexander Archipelago in the ABT case of 1903 before the Supreme Court,53 even though it had (allegedly) “rened its rationale since its 1903 expression and had begun to articulate a rule for straits leading to inland waters”.54 As the reference there was more in the nature of an obiter dictum than a positive statement of an US geographicspecic claim,55 in Alaska v. US (2005) this supposed statement of US policy was easily distinguished and found not to be determinative of a US claim to inland waters in the Alexander Archipelago (to which it made mention).56

50

51 52

53 54

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The reference to “bay” underlines the fact that the US was not here clearly claiming archipelagic internal waters as such, and the reference to bays could include, in the conventional sense, the waters of the many ‘bays’ stricto sensu which may lie within the Archipelago. At p. 15. Brief for the United States in Answer to California’s Exceptions to the Report of the Special Master, 130–131, US v. California No. 5 Original (October Term, 1964). Brief, at p. 15. The fact that the Alaskan Brief referred here only to a claim to “inland waters” and not “historic [inland] waters” indicates that Alaska realised there was a possible terminological problem here, especially as the ‘straits-to-inland waters’ factor only goes back to 1930, not to the date of the Arbitration (i.e., 1903). For this writer’s analysis of the Brief, see his Report in the case (bibliography, at pp. 135–139). In the US v. California case the US did, in its historic waters section, discuss the alternative Californian claim that the waters there constituted an historic bay, but noted in this context only Delaware and Chesapeake Bays – both well-known US examples (Brief at p. 109) – relating to the statement of Attorney-General Randolph as to Delaware Bay, stating “Delaware and Chesapeake Bays have become the classic examples of waters claimed by the [US] on historic grounds”: see also id at pp. 160–178. The Alexander Archipelago was not included here and was instead discussed elsewhere in the seeming context of juridical principles. Indeed, it was seemingly only discussed in the US Brief (see id., at p. 105 et seq.) because California had referred to it in its prior pleadings; and then only in connection with a ‘10-mile’ bay rule. (id., at p. 76; see also id., at p. 108, n. 62 and p. 160). The US here was not, as such, ‘defending’ its position on the status of the waters of the Alexander Archipelago, as alleged in the Alaskan Brief in Alaska v. US (2005) (at p. 14). It was instead using this situation merely as a contrast in the cause of distinguishing the geographical situation in the case there in hand – the case of the Santa Barbara Channel off California. This point was noted by the Special Master in US v. Alaska: see Report, March 1996, at p. 132, fn. 99. See the Report of the Special Master in Alaska v. US (2005), at p. 124. The Special Master agreed with the US view (id., at p. 124) that it was merely “an inconsequential misstatement about a dubious delimitation principle that the U. S. suggested in 1930, never actually applied to the Archipelago, and abandoned upon signing the Convention” (US Count 1 Reply, at pp. 11–12). He found that the brief was anyway “mistaken” as it assumed that all of the straits

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The 1964 US reference to the Alexander Archipelago was in any case only directly connected with an attempt to prove a 10-mile mouth rule for bays, and not with coastal archipelagoes and, still less, with any specic historic waters claims. As such the references were not “specic assertions” (emphasis added) of a federal claim, as alleged in the Alaskan pleadings in Alaska v. US (2005). This situation, therefore, could be distinguished from that decided on by the Supreme Court in the Alabama and Mississippi Boundary case, where the Court found historic waters to exist in Mississippi Sound based partly on a federal brief in that case which specically conceded that these waters there in contention had inland status (“a public acknowledgment of the ofcial view that Mississippi Sound constitutes inland waters of the Nation”);57 in other words, a directly relevant ofcial acknowledgement as to the status of a geographic situation then in contention.

2. The Ofcial Claim must Show Clear and Consistent Intent to Claim Inland Waters as Historic Inter-connecting with a State-sponsored ‘claim’ being necessary is the requirement that this must be made in clear terms. This broader, commonsensical factor is of particular importance in historic waters claims because of the potential threat to freedom of the seas. As Scovazzi says,58 “les limites atribuées aux pretendus titres historiques doivent aussi être exprimées en termes clairs et manifestes an de determiner dans quelles mesures ils déplacent vers le large l’étendue des zones cotières, ou autrement dit, dans quelle mesure ils empietent sur la haute mer”. Other academic commentators stress this same point. For example, Bouchez states that “[t]he coastal State must leave no doubt about its intention to claim the water area as part of its national territory”.59

57 58 59

in the Alexander Archipelago led to inland waters “when in fact they do not”; and he stated, (id.)” [t]he [US] was identifying standards that it would use for deciding whether to acquiesce in foreign inland waters claims; it was not using the standard to make its own claim”. See also id., at pp. 96–99, where the Special Master concluded – referring to Alaska’s having asserted that the previous federal Brief “unequivocally show[ed] the the [US] viewed the waters [of the Alexander Archipelago] as inland waters” – that the passage did not claim “that all the waters of the [Archipelago] are inland waters” (id., at p. 98). Signicantly the Supreme Court in US v. California never made any reference to the Alaskan situation by way of comparison (see 381 US 139(1965)). In the 1964 scenario, then, the US reference to the Alaskan coastline was not germane to the dispute in issue and the Alaska so-called ‘precedent’ was used merely to prove a general principle, thus not coming into the same category of ofcial geographically-specic assertion. Additionally there was broader countervailing federal evidence against the Alaskan assertion in at least one later case where the Special Master said that the “ southern coast of Alaska” was made up of numerous coastal islands which the US had “not utilised [original emphasis] to form juridical bays”: (Report, Rhode Island & New York, No. 35 Original, 1983, at p. 31). A footnote appended to this statement (n. 21) indicated this “portion of the Alaskan coastline” had not up to that time been “subject of any litigation”. 470 US 93, at p. 110 (1985). Op. cit., supra n. 6, at p. 326. Op. cit., at p. 249. Cf. McDougal & Burke (op. cit., at p. 340) who are out of step in suggesting

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Thus the principle entails that historical inconsistencies of claim – particularly if repeated – may defeat alleged historic title. For example, the Libyan pleadings in Tunisia/Libya60 claimed that “successive [Tunisian] variations in legislation clearly contradict the idea of historic rights established since time immemorial and widely recognised since ancient times”. Statements in past US cases also support this requirement in general terms. For example, in the Cook Inlet case,61 the Supreme Court stated that “given the ambiguity of the Federal Government’s position, we cannot agree that the assertion of sovereignty possessed the clarity essential to a claim of historic title over inland waters”. In the El Salvador/Honduras case, the ICJ described the historic character of the Gulf waters being essentially based on the “consistent claims of the three States”;62 and the Court quoted with approval a statement from its earlier decision in the Tunisia/Libya case to the effect that “historic titles . . . must be preserved as they always have been by long usage”.63 With this particular nding on the facts, Judge Oda in the case seems to have disagreed as to this qualitative dimension, implying that64 the actual detailed status determined in 1917 by the regional Court there bore little ressemblance to that allegedly inherited as early as 1821, particularly because prior to 1821 (or 1839) there was “no ground for believing” that “either Spain or the Federal Republic of Central America had any control in the sea-waters beyond the traditionally accepted rule of the range of cannon-shot in the Gulf”. Thus, despite his overall dissent, he seemed to fully endorse the general rule on need of (historic) consistency cited by the plenary Court. 2.1

Examples of inconsistency of claim in Alaska v. US (2005)

The Alaskan Brief alleged, as seen, that in the course of the 1903 ABT case, the US made “several unequivocal declarations”65 to the effect that the waters of the Alexander Archipelago were “inland” waters. This is misleading because such alleged “declarations” were by no means “unequivocal” as to the inland waters status because of intervening prolonged ofcial US silences66 or inconsistent statements. In the light of the historical material, the alleged US ‘claim’, if indeed based on any 19th or 20th

60 61 62 63 64 65 66

(strangely) that a coastal State’s authority regarding historic bays need not be “unequivocally manifested by an explicit claim that the bay is considered within internal waters”. Counter-Memorial, Pleadings, vol. 2, at p. 194, para. 120. See US v. Alaska, supra p. 116, at p. 203. Supra p. 2, at p. 601 (emphasis added). Id., at para. 384, p. 589. Id., at p. 752, para. 36, and at p. 753, para. 37. Brief, at p. 13 (emphasis added). US archive evidence from the critical years of the 1920s and 1930s is silent on such a ‘claim’ even in statements referring specically to the Alexander Archipelago. For example, there was no mention of the Alexander Archipelago as historic inland waters being put forward at the 1930 Hague Codication Conference (only then reference to Chesapeake and Delaware bays). Special Master Mann pointed out in US v. Alaska (1996) that the US reply to the LN questionnaire did not “mention the Alaska Boundary Arbitration”: Report, March 1996, at p. 69 (emphasis added).

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century origin of title, had thus not been interpreted or claried by later actions, e.g., over specicity of the extent of alleged inland waters. 2.1.1 Examples of inconsistent conduct in respect of the claim (US archive evidence in Alaska v. US (2005) regarding US government practice) In Alaska v. US (2005) there was voluminous evidence that no ofcial US claim to the waters of the Alexander Archipelago as being historic had ever been articulated. This evidence took the form of US memoranda and letters between US ofcials (the most important of which was the so-called “Bayard letter” (below)67 or to foreign ofcials;68 US statements and submissions before international conferences;69 and US statements

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See below section 2.1.1.1 and my Report (supra p. 91, n. 44, at pp. 108, 110, 131–132). See also, e.g., the references to Bogg’s 1952 application of the radiating arcs principle in the Alexander Archipelago, the very place where the 10-mile rule for islands is said to have originated as noted by the Special Master in US v. Alaska (1996), Report, pp. 105–107. In the testimony and statements before Congress on an Alaska Statehood Bill in 1955, and discussion on the maritime areas which would accrue to the State of Alaska, the territorial waters of Alaska were afrmed to go out three miles from the shoreline; and that in general this limit followed the “meanderings of the coastline”: (see House Committee on Interior and Insular Affairs, Hawaii-Alaska Statehood: 84th Cong. 1st Sess: January 25, 28, and 31 and February 2, 4, 7, 8, 14, 15 and 16 (1955) at pp. 114, 115 and 272). What is particularly signicant here is that at the time of statehood there was no mention at all of any possible claim to historic waters in the Alexander Archipelago: see the Special Master’s Report in Alaska v. US (2005) (at pp. 85–86) saying that ofcial statements then did not show that the waters of the Archipelago were viewed as inland. The very fact that Under-Secretary of State Irwin indicated to Governor Egan in 1971that the US federal authorities would welcome any information on historic waters in the Archipelago indicates that at this time the US itself had no such evidence: see the ‘McKernan Memorandum’, 1972: Alaska Ex. 8 in Alaska v. US (2005), at p. 30e. See, for example, in the early 20th century, a 1926 memorandum written by the Solicitor to the State Department, in response to a German inquiry on US limits to territorial waters, which actually backdated US policy (based on arcs of circles (3 miles) around islands) to the previous century; see my Report, supra p. 91, n. 44, at p. 129. The absence of a claim of historic waters at the 1930 Hague Codication Conference and the ‘Boggs formula’ is particularly signicant. See the Special Master’s Report in Alaska v. US (2005), at p. 127 (“The two proposals made by the [US] at the 1930 Hague Codication Conference . . . also do not show that the [US] was claiming the waters of the . . . Archipelago as inland waters”); and in US v. Alaska (1996), the Special Master pointed out (Report, at pp. 69/70) that the US ofcial reply on the Bases of Discussion on “Territorial Waters around Islands” at the 1930 Conference did “not mention the Alaskan Boundary arbitration or any other source that might be thought to state a denite rule for when waters landward of the islands would be considered inland waters”. Indeed, at this time (as was much discussed in the pleadings of the Fisheries case) the US emphasis was on the ‘Boggs formula’ of intersection of arcs for such waters, with the possible elimination of high sea enclave “pockets” as territorial sea (not internal waters). Much later, in 1952, Boggs wrote to the US Coast Guard, saying that “the territorial sea in the Alexander Archipelago was measured using the assimilation method ” – that is, its territorial waters were measured “within arcs of circles whose radius is 3 nautical miles measured outwardly from all the coast, including all islands” (emphasis

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at international arbitrations70 and international negotiations relating to the area with Canada.71 2.1.1.1 Clear countervailing evidence of historic claim by a competent organ of State: the ‘Bayard letter’ in Alaska v. US (2005) In Alaska v. US, the so-called 1886 ‘Bayard letter’ was very much relied on as evidence contrary to any ofcial US historic waters claim in the Alexander Archipelago72 This letter, written in the years between 1867 and 1903 during which period Alaska was unable to show any assertion of authority by the US in the Alexander Archipelago, was described by the Supreme Court as “a signicant event”.73 It came about that in May 1886, i.e., a mere 17 years before the 1903 (ABT) arbitration, US Secretary of State Bayard had written to the US Secretary of the Treasury Manning,74 stating that as to the eastern coast of North America, the position of his Department had consistently been “that of a claimed 3-mile belt from continental shore and around offshore islands”; and that these rights recognised in the mainland of Canada (“under the British sceptre”) could not be refused to others on the “north-west coast, where the sceptre is held by the [US]”.75 The geographical reference here to the “north-west” coast, as the Special Master in Alaska v. US (2005) found, included all the waters of the Alexander Archipelago, as it referred to the US not being able to claim “greater jurisdiction against other nations, of seas washing territories which [the US] derived from Russia under the Alaska purchase”; and it was stated to be, in the eyes of both parties, “very important because it

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added). This was duly cited by the Special Master in US v. Alaska (Report of March 1996, at pp. 69, 70), who expressly noted that there was “no reference to the United States’ position at the 1903 boundary arbitration” (id., at pp. 106 (emphasis added)); and see also id. at p. 128 In the North Atlantic Fisheries Arbitration, the US was already denying the existence of any ‘ten-mile rule’, and in that case, Britain referred only to Delaware and Chesapeake bays as being US historic bays, making here no mention of the Alexander Archipelago: see US v. Alaska (1996), Report, at pp. 61/62. In the political follow-up to the 1903 ABT case, US/Canada negotiations, starting as early as the 1920s, made attempts were made to x the so-called ‘AB’ line in the Dixon Entrance following the ambiguity in the 1903 proceedings: the US maps there used only showed 3-mile arcs in the uplands from the low water line, with no depiction at all of the alleged 1903 lines and no reference otherwise to their being inland waters, let alone historic ones. See my Report (supra n. 67) at p. 131 and the Special Master’s Report in Alaska v. US (2005), at pp. 49, 75–82. See the Report of the Special Master at p. 110 and the judgment of the Supreme Court (infra, n. 73). 545 US 75, at p. 86. This dictum was to be cited later by Mr Gross (ironically former Attorney-General of Alaska), in his work entitled The Maritime Boundaries of the States (1966), at p. 653. Moore, op. cit., vol. I, at p. 719. In Alaska v. US (2005), the Supreme Court (supra n. 73, at p. 88) found the fact that the “letter referred to the east coast in no way diminishe[d] the unequivocal nature of its statements with respect to the Alaskan coast”.

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describe[d] the ofcial position of the [US] State Department”.76 In its pleadings the US federal interpretation of the letter was that it “explicitly” stated that the “US claims only a three-mile territorial sea along the coast of Alaska”: so that it showed the US “did not view the [Archipelago] as inland waters”.77 The Special Master agreed with the federal viewpoint. As he stated:78 The opening paragraph of Bayard’s letter indicates that the letter will provide a legal statement [on maritime policy]. The portions [quoted] show that Bayard believed that the [US] . . . should not make [a claim to more than three nautical miles] on the north-western coast.

He added that the letter addressed “free transit” of foreign vessels and “further specically applie[d] this legal standard to Alaska”79; also that:80 This letter deserves substantially more weight than the other letters descibed [in evidence] from the same era. Not only did Secretary of State Bayard have more authority than lower government ofcials, but his letter also specically concerned the legal status of the Alexander Archipelago’s waters. The letter said . . . that the [US] could not claim ‘greater jurisdiction’ than three miles of marginal seas and that foreign vessels had the right to make ‘free transit’. Ofcials who held this belief could not, and evidently did not, claim the [US] could exclude innocent passage through [those] waters”.

The Special Master also referred to later 20th century letters from similarly highlyplaced US ofcials, such as those of the Secretary of Commerce and Secretary of State in 1934 which, in his view, demonstrated that the “ofcials who held these views could not, and did not, assert that the [US] had a right to exclude foreign vessels” from the waters in question. As he added:81 Alaska [had argued in its pleadings, Count 1, Reply at p. 22] that ‘internal, condential correspondence’ between government ofcials cannot constitute a disavowal of authority over waters of the Archipelago . . . These letters, however, show more than a mere private understanding between two government agencies; they indicate that their understanding guided enforcement . . . Combined with the 1886 letter, they show that the [US] State Department, at least, could not have ‘continuously’ claimed that the waters of the Archipelago were inland waters.

2.2

The content of the historic ‘claim’ must be clearly state the geographical extent

The effect of geographical uncertainty, or inconsistency, of claim on historic title has been subject to some comment in the context of historic waters generally, both aca-

76 77 78 79 80 81

Report, at p. 45 (emphasis added). Id., at p. 47. Id., at p. 48. Id., at pp. 48/9. Id., at p. 110. Id., at pp. 110/11 (emphasis added). Cf. Alaska’s Exceptions, at p. 31, where Alaska categorised the Bayard letter as mere “internal correspondence”.

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demically and judicially. For example, Judge Hsu Mo in his Separate Opinion in the Fisheries case, stated:82 The acts on which [Norway] has relied contain one fatal defect: the lack of precision. For they fail to show any precise and well-dened areas of water in which prohibition [of shing by foreigners] was intended to apply. And precision is vital to any prescriptive claim which might otherwise be high seas.

Similarly, in nding against historic waters in an archipelagic context in CAB v. Island Airlines, the US Court of Appeals stated that it could not overlook “a very practical question”, namely “if the ‘channels’ between the islands were to be held inland waters, where would the boundaries lie?”;83 and, in Alaska v. US (2005), the location of an external baseline system around the Alexander Archipelago in Alaska was, in like fashion, very unclear.84 Blum stresses the reason for the geographic clarity requirement for historic title. As he has stated:85 Since an historic title is acquired as a result of an encroachment upon the rights previously acquired by another State, or the community of States, it necessarily follows that any claim of this kind must be given the strictest possible geographical interpretation.

The necessity for clarity in repect of geographical extent of historic claim is also vital in connection both with the requirement of effective enforcement of jurisdiction86 and acquiescence to the claim. It is noteworthy, for example, that the initial draft articles on ‘bay provisions’ at UNCLOS I drawn up in 1952 in consultation with the Committee of Experts required that any ‘historical bays’ were to be indicated as such “on maps” – an additional publicity requirement.87 2.2.1 Inter-relationship of geographical uncertainty with requirements of awareness and acquiescence The matter of geographical uncertainty or inconsistency may interrelate with the question of other States’ awareness of the alleged historic claim; and so with their acquiescence in the supposed historic claim. For example, as Bouchez points out,88 the view of the ICJ in the Fisheries case that the UK must have been aware of Norway’s shery decrees in the 19th century, has been contested by Fitzmaurice,89 inter alia on 82 83

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Supra p. 2, at p. 157 (emphasis added). 352 F. 2d 735 (1965), at p. 743. See also the Supreme Court’s statement in US v. Alaska, (1996), referring to “variation and imprecision in general boundary delimitation principles”: 521 US 1, 15 (1997) (emphasis added). See below section 2.2.3.1. Op. cit., at p. 238 (emphasis added). See infra, Chapter 13. Set out in Strohl, op. cit., at p. 224. Op. cit., at p. 263. See ‘The Law and Proceedure of the [ICJ], 1951–1954’, 31 B.Y.I.L. (1953), at pp. 36–37 (emphasis added).

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the basis that the Norwegian decrees of 1869 and 1889 only referred to parts of the coast, “whereas the conict of 1951 concerned the application of the straight baseline system to the whole coast”. Such geographical inconsistency may thus affect the whole issue of whether any real foreign acquiescence exists. For example, in the Tunisia/Libya case, respecting Tunisian historic waters claims, Libya alleged that Tunisian actions, such as a decree of 1951, a law of 1963, and the laws and a decree of 1973, regarding the Gulf of Gabes, “reect[ed] substantial variations and uctuations in the size of the territorial sea, methods of establishing baselines, and designations of a reserved and contiguous shing zone”; so that for such reasons there could not be Libyan acquiescence.90 Geographical inconsistency in respect of an alleged historic claim also can add further proof of the very non-existence of a valid historic ‘claim’. For example, Special Master Maris in US v. Florida stated:91 The State offered a series of maps dating back to 1854 which more or less clearly designate as Florida Bay the area now claimed by the State as its internal waters. I nd, however, that this area has not been consistently treated by geographers and cartographers as a bay.

2.2.2 Lack of clarity over baselines Lack of clarity as to the baselines from or within which an historic claim has been made may thus be fatal to the claim; and this may be a particular problem when there was uncertainty as to the starting points of maritime zones in international law. For example, in the Fisheries case the ICJ referred to a dated Norwegian decree of 1812 which the Court noted did not (then) “clearly indicate” how baselines between the islands were to be drawn and did not say “in express terms that the lines must take the form of straight lines between the [insular] points”.92 In the El Salvador/Honduras case,93 the ICJ referred to a similar situation regarding the Gulf of Fonseca and the “closing line proper” of this historic Gulf, noting that although the line was “geographically” obviously the outer limit of the Gulf, there was “considerable argument about whether the closing line [was] also a baseline”, El Salvador treating it as “simply a line depicting the ocean limit of the Gulf”.

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Reply of Libya, Pleadings, vol. 4, at p. 123, para. 55. Report (1974), at p. 43 (emphasis added). Supra p. 2, at p. 134 (emphasis added). As Judge Read pointed out in his Dissenting Opinion, the British Government in that case had clearly been “unable to obtain any denite information as to the nature and character of the Norwegian system [of straight baselines] prior to 1935” (id., at pp. 204/5). Likewise, when in 1827 an early map was published by Russia (‘Limites des possessions Russes et Anglaises, d’après la traité de 1825’ (cited by Foster in ‘The Alaskan Boundary’, (1899) 10 National Geographic Magazine, 419, at p. 440 (1899)), it seemingly showed only a boundary line at distance of 10 marine leagues from “tidewater” around the “head of all inlets”, but no straight baselines traversing the mouths of same. Supra p. 2, at para. 411, p. 604 (emphasis added).

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For such reasons, publication of a chart or detailed co-ordinates of the historicallyclaimed maritime zone seems desirable. For example, Italy in proclaiming its 1977 claim to the Gulf of Taranto as an historic bay (see Map 4) reportedly notied the whole international community of the decree with an accompanying chart.94 2.2.3 Geographical uncertainty of the 1903 closing lines and Alaska v. US (2005) The matter of geographical certainty of claim arose in Alaska v. US (2005) relating to the supposed 1903 ‘claim’ in the ABT case. Then, counsel for the US reportedly produced a map before the Tribunal to show an ‘outer line’around the Archipelago,95 the whereabouts of which now seems to be unknown. It seems, in fact, that the sheets of the atlas offered in evidence in 1903 did not include a map showing the closing lines referred to in “Argument for the [US]” and used in oral argument in the then litigation. In the latest Alaska-US litigation, the Alaskan Exhibit 1 in the case referred to “closing lines drawn by the United States at the 1903 Boundary Tribunal to mark the seaward limits of the inland waters of the Archipelago”; but it is unclear whether the lines actually there drawn were those taken from the supposed map produced for the Court rather than simple reconstructions of the verbal description of the lines in the 1903 case.96

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See Ronzitti, supra p. 101, at p. 281. On Article 4 of the TSC and the need for publication of straight baselines claims, see the US Brief in US v. California, at p. 62. See, e.g., Argument of Hannis Taylor, Proceedings, Vol. VII, at p. 607 (a map where the “political coastline is outside of this archipelago”). Signicantly, the only reference in the case to a British map by US counsel appears to have been to one showing only the internal line (id., at p. 610). It is noteworthy that although US counsel describes what today would be called a ‘baseline’ (when he makes the contrast between the political and physical coasts), he is clearly largely relying on bay rules for the straight baseline regime described. The repeatedly used treaty-based word “inlet” in the context of the Alexander Archipelago seems more naturally to refer to an inner (mainland-based) line only (see the wording of the sixth question to be decided under the 1825 treaty in the case (“where the mainland coast is indented by deep inlets forming part of the territorial waters of Russia”). The British argument used the word “inlets” in a very conned sense relating to river mouths; and, the actual terms of reference of the Arbitration (as agreed to by Britain and the US jointly) seemed to make no reference to a third geographical possibility, namely, that the “coast” might run along the western limits of the Archipelago: see Proceedings, vol. I, Pt. 1, at p. 30 ; and id., vol. III, Pt. 1, at pp. 78–80, esp. at p. 80. Emphasis added. Furthermore, it appears that none of the ofcial maps produced before the Tribunal – whether published by Russia, Britain, Canada or the US – indicated at that time anything other than a physical boundary in the area going around the “heads of inlets” (see Proceedings, vol. IV Pt 1 (Counter-Case of the US), at p. 49); and certainly not any straight baseline system around the Archipelago (they “without exception carried the [boundary] line around the heads of all the inlets” (id., at p. 61)). “Inlets”is here used in a specic geographic sense only to indicate ‘bay-like’ areas. Compare the US complaint in its Brief in US v. California to the effect that California, in referring to the line described in the 1903 ABT case, showed on a map lines longer than 10 miles being drawn around the Alexander Archipelago and that “those lines were not the lines described by the [US]in that arbitration” (at pp. 105/106).

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Not surprisingly in the light of this past geographical ambiguity, the post-1903 history of the ‘ABT’ lines in the 20th century was that they were basically ignored in US ofcial circles97 or became the subject of criticism. For example, no less an expert than Boggs – when acting as US Department of State Geographer and analysing the 1903 alleged ‘lines’ in 195298 – complained that the lines as then being described were in “terms too general to permit of precise delineation”, with two of the lines making arbitrary “turns inward towards the mainland”. He thus stressed the geographical uncertainty involved in the US Counter-Case in the 1903 arbitration.99 2.2.3.1 Inconsistent State charts in Alaska v. US: the ‘Pearcy Charts’ and the Alexander Archipelago The Alaskan Brief in the case hinted that a US historic claim continued after US ratication of the UN Convention on the Territorial Sea and Contiguous Zone of 1958 (TSC) (“[US] ofcials continued to assert that the waters of the Alexander Archipelago constitute inland waters after the Convention [i.e., the TSC] was ratied [by the US]”,100 citing an article by Dr G. Etzel Pearcy, Geographer at the State Department at the time of Alaska’s admission into the Union in 1959, explaining the principles of the Convention wherein he (allegedly) “intimated that . . . ‘the archipelago along the southeast coast of Alaska’ required the use of straight baselines under the Convention”; with his subsequent preparation of charts allegedly showing straight baselines along the coast of the Alexander Archipelago101 (see Map 6 for one major discrepancy). The Special Master in previous US-Alaskan litigation (US v. Alaska (1996)),102 noted that although initially Pearcy’s plotting “apparently did not extend to Alaska”, he “did mention its southeast coast, that is, the Alexander Archipelago, as a situation for straight baselines”; and later his charts did show “straight baselines in southern Alaska”.103 However, these lines contained alternative line versions (including, it seems arcs of circles),104

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E.g., the 1930s (temporary) Tariff Commission charts drawn for the Alexander Archipelago indicated mere arcs of circles from all points (see US Archive Refs. 01402, 01404, 01408, 01413). Memorandum of July 2nd, 1952, at pp. 1 & 5 (emphasis added). He also claimed that all the islands were “practically treated as portions of the mainland”, so that (perversely) the “political” (or legal) coast line of Southeast Alaska did not touch the mainland coast between Cape Spencer [in the north] and 55° of north latitude” (i.e., over the whole extent of the Archipelago). He noted also the articiality of the alleged 1903 lines, as in two sections, extending to some 15 and 25 miles respectively: see Working Memorandum to Boggs from the Special Advisor on Geography, Dept. of Justice, July 2, 1952, at pp. 1 and 5. Brief, at p. 17 (emphasis added). Id., at p. 18. Report of March 1996, at pp. 163–168. Id., at p. 164. The article was entitled “Measurement of the [US] Territorial Sea”, and published in Dept. St. Bull., June 29, 1959, 963. Id., at pp. 164/5, n. 134.

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and did not appear to correspond with those lines suggested by US counsel in the 1903 Arbitration; and the lines made no reference to the 1903 lines.105 In Alaska v. US (2005) the US federal side argued these charts were, more generally, “irrelevant” to any historic claim;106 and the Special Master duly found there that the “United States . . . did not adopt the . . . charts”, and that they did not support Alaska’s historic claim;107 and, at the very least, it may be further argued that if the ‘Pearcy lines’ ever were some conrmation (as alleged by Alaska) of a US historic ‘claim’, there should at least have been consistency over the relevant period.

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Cf. the Alaskan Exceptions in Alaska v. US (2005) (at p. 27) admitting that the Pearcy charts “used closing lines similar to those adopted in 1903” (emphasis added). The principal difference between the two sets of lines is that the Pearcy lines are not limited to 10 mile crossings (being based on a hypothetical application of the TSC (1958), Article 4 principles: see Map 3). See Report, at p. 99. In the 1950s (when the charts were drawn up), the US was engaged in querying other States adoption of 10-mile closing lines around coastal archpelagoes, as in the case of Cuba in its 1955 decree, as the Special Master noted in US v. Alaska (Report, at p. 125, fn. 92). Id., at p. 128. Another eminent US geographer, Dr Hodgson, later testied in the case of US v. Louisiana that the lines were “purely illustrative” and were never “approved by the [US] Government”; and that there was no correspondence in US State Department les which would “categorically assert” that the US had adopted then a straight baseline policy or that the Pearcy maps were an “ofcial representation of a [US] position” (see US Archive Refs. 10878, 10879 and 11110). Other archival evidence attached to the Alaskan Brief showed the same ofcial US sentiments. See, e.g., a US Coast Guard communication to Pearcy (June 22, 1967, Al. Ex. 6 at p. 11e) (the charts represented an “exercise in baseline drawing” and did “not represent an ofcial delineation of the territorial sea”). Similarly, see the letter of McKernan to the Bureau of Commercial Fisheries, Juneau, May 24 1963 (referred to id., in Al. Ex. 6 p. 13e at p. 13f ) (“You are especially cautioned that these charts have no ofcial standing whatever within the [US] Government”).

Chapter 11

THE NECESSITY FOR PUBLICITY OF HISTORIC CLAIM: PUBLICATION/ NOTIFICATION OF THE CLAIM TO OTHER STATES 1. The need for Adequate Publicity For an alleged historic claim to arise, it is necessary that sufcient “notoriety” is achieved.1 As one authority has stated,2 “les eaux historiques ne peuvent pas naitre ipso jure, car il faut toujours une déclaration publique de l’état côtier, une manifestation de volonté ofcielle suivie par une adequate publicité”. The general requirement has also featured strongly in past US caselaw, especially in respect of follow-up enforcement jurisdiction to an initial claim (see below).3 For example, Special Master Maris in US v. Florida4 stated: “[t]he State [of the Union] must show that it, or the [US] exercised open, notorious and effective sovereignty in the area”. 1 2 3 4

According to the UN Juridical Regime, at p. 15, para. 96. Scovazzi, op. cit., supra p. 118, at p. 326. See below, Chapter 13, and Chapter 14, section 2.4. Report, 1974, at pp. 42/43. See also the US case of CAB v. Island Airlines (235 F. Supp. 990, at p. 1007 (1964)) where it was well stated that the “acts must have the notoriety which is normal for acts of the State” (cited by Whiteman, op. cit., vol. 4, at p. 249).

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The need for adequate publicity for an historic claim has featured strongly in past diplomatic protests where publicity of claim has been lacking. For example, a US protest to Australia5 complained that Australia’s claims were not “open and notorious” in the relevant period; and that the US was unable to agree that these bays met “the requirements of international law”, most particularly because there had been persistent failure on the part of Australia to identify the particular bays when the opportunity arose several times in the twentieth century. Similarly, a Japanese note (of 17 January, 1958) to the USSR regarding the 1957 Peter the Great Bay claim6 (see Map 7) stated that the Japanese Government had “no knowledge of the existence of” an alleged Russian shery regulation of 1901. The US protest regarding same7 complained in like manner about “internal regulations [of 1901] not [being] communicated to the Governments of other States”, thus not showing “sufcient” degree of acceptance “on the part of the rest of the world”. In fact, this factor approximates, in the light of intertemporal law, to the requirement for publicity over straight baselines/closing lines in the modern law of the sea concerning certain juridical maritime claims; so that arguably any ‘straight’ baseline system – whether juridical or, arguably, even if exceptional (i.e., historical) – have similar rules in this regard.8 1.1

Non-publication of the alleged US ‘claim’ to the Alexander Archipelago

As seen,9 only isolated and sporadic public references had been made to the alleged historic ‘claim’ in the case of these waters since 1903 (the ABT case), so that foreign nations were unlikely to have been aware of the alleged ‘claim’. The (above-men-

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As cited in Roach & Smith, United States Responses to Excessive Maritime Claims (2nd ed., 1994), at pp. 36/7. A US note relating to Australian bay claims in 1991 referred expressly to there being “no evidence” in Australian internal reports of any South Australian bays being “specically mentioned in any listing of historic bays of Australia” until the early 1980s: see above Chapter 1, section 2.2.4.4. Cited by Strohl, op. cit., at p. 354. Of March 6, 1958 (emphasis added), cited in Strohl, op. cit., at p. 355 and in Whiteman’s Digest of International Law, vol. 4, pp. 253/256; also cited in XXXVIII Bulletin, Dept. of State, No. 978, 24 March, 1958 at p. 461; and see M.W. Reed (op. cit., at p. 337) (the US has relied on the requirement of “adequate publicity” of a historic claim in its opposition to foreign historic waters claims). Noteworthy is the extent of non-recognition/acquiescence here being stressed in the US protest. Signicantly, this very protest note was in fact internally cited US circles in 1972 relative to a possible historic claim to the waters of the Alexander Archipelago: see US Memorandum from Department of State to Ambassador McKernan (annexed to Alaska’s Brief, 28e at p. 35e in Alaska v. US (2005)) (“In 1957–1958, we opposed a Soviet claim of historic title to Peter the Great Bay, which the Soviet Government asserted, had been included as internal waters under its sheries regulations . . .”). See, e.g., Art. 16 of the LOSC, 1982. As noted supra, Art. 10(7) thereof, which exempts ‘historic bays’ from the provisions of Art. 10, does not clearly exempt a claimant of an historic bay from this separately-stated requirement. See, e.g., above Chapter 10, section 2.1.1. et seq.

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tioned) US judicial statement in the Alabama & Mississippi Boundary case, to the effect that foreign nations were aware of the supposed US ‘10-mile’ policy’ (on closing lines of bays) from 1903, as indicated by the fact that it was “cited and discussed by both the United Kingdom and Norway in the celebrated Fisheries case”, was,10 in itself, straining the traditional rule for historic title, as at most, in practical terms, a reference simply in the course of pleading by one litigating State may bring it to the notice of its adversary, but not necessarily to any other States when the reference(s) is/are buried in voluminous pleadings (amounting to several volumes) – as was the situation in the Fisheries case – rather than being contained in any of the ICJ’s judgments.11 On such a matter in Alaska v. US (2005), the Special Master was to state:12 At least one other nation subsequently learned what the [US] argued at the 1903 tribunal. Counsel for Norway found and cited the position of the [US] in the Fisheries Case . . . The ability of one foreign nation to discover the [US’] argument when litigating a related issue, however, does not mean that foreign nations should have known of the [US] position. The [Supreme Court’s] decision in California indicates that whether a source gives foreign nations a reason to know that the [US] is claiming inland waters status depends on the prominence and authoritativeness of the source.

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See M.W. Reed, op. cit., at p. 340, fn. 391, and above Chapter 10. For this good reason alone, the initial statement in the case (in 1984) by the Special Master (Report, 1984, at pp. 50/51) to the effect that even in 1952 (at the time of oral argument in the Fisheries case) – “the position of the United States [on bays] was well known in the international community, and had been since the Alaskan Boundary Arbitration (1903)” – would have to be be discounted (quite irrespective of the later Supreme Court’s later volte face on the alleged substantive practice in US v Alaska (1996), as also must the Special Master’s statement in the 1984 case (id., at p. 54) that the material mentioned (on the 10-mile rule) “constituted the publicly stated position of the United States” (emphasis added) from the 1903 (Alaskan Boundary Arbitration) to 1961 – the date of US ratication of the TSC. Alaska’s expert witness on Count 1, Professor Charney, tried to argue otherwise: cf., his Report, at p. 31 (the Fisheries case’s “[ j]udgment, oral pleadings and written memorials” were “published and are held in virtually every state’s foreign affairs ofce . . .”). See his Report, at p. 118, fn. 34. Thus evidence of the ‘claim’ did not emanate directly from the allegedly-claiming State (i.e., the US); and was, like the alleged claim in the 1903 case itself, hidden in a myriad of pleadings (mainly in French) in an international litigation context, and in any case was subject to British objections in its own pleadings in the case. Even Norway (as also the UK) in the Fisheries case failed to list the Alexander Archipelago as an historic claim (see Rejoinder, paras. 409–10; also Annexe to the UK Reply of 28/11/50 at p. 685 et seq. (regarding lists of alleged claims over 24 miles wide). Furthermore, as seen (in Chapter 10), Alaskan reliance on more recent straight baselines – the so-called ‘Pearcy lines’ in the post-war period – took the ‘publicity’ matter no further: for there these lines were given limited domestic circulation with a “without prejudice” (provisonality) clause, using several variations of lines; and even in the US the original charts are now difcult to source as to the authentic versions. For Alaska’s reliance in Alaska v. US (2005) on references to the 1903 arbitration in the Fisheries case in the early 1950s of evidence of Norwegian acquiescence in its claim, see below Chapter 14 for detailed discussion.

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Lack of publicity may not only arise from a ‘claim’ being secreted away in voluminous pleadings in the course of international litigation; it may also be effectively hidden in unpublicised domestic sources. As McDougal & Burke validly point out relating to historic bay claims, “[c]laims often occur in sources that are difcult to discover, as in more or less obscure municipal decisions and legislation”.13 1.1.1 The ‘hidden claim’ problem in Alaska v. US (2005) concerning the pleadings in a domestic or international judicial setting In the case, the Special Master made an interesting analysis of how far a State’s counsel’s arguments or pleadings in a judicial setting could establish an historic claim14 in the light of the nding in the Alabama and Mississippi Boundary case 1906, wherein he conceded that the Supreme Court had indicated that “foreign nations should have taken notice of the brief” endorsing the 1903 claim.15 However, whilst the Special Master acknowledged that “arguments in arbitral and judicial proceeedings can help to establish historic water claims”, he stated that “their context must determine how much weight they have”.16 As he added:17 In the Alabama and Mississippi Boundary case, although [the Supreme Court] cited the United States’ brief, the Court did not suggest that the brief by itself would have sufced to make Mississippi Sound a historic bay. On the contrary, the Court relied on its own precedent and said that the brief conrmed the claim . . . Foreign nations can be expected to know that the [US] Supreme Court has the nal authority to decide domestic boundary disputes. The Court’s decisions, moreover, are readily accessible . . . In this case, by contrast, the arguments of counsel before the 1903 Alaska Boundary Tribunal are not an adequate assertion of authority over the waters of the Alexander Archipelago. The status of the waters [of

13

14

15 16 17

Op. cit., at p. 359 (emphasis added). They add that “[i]t is most doubtful if states generally were aware of all the considerable number of claims made by Norway in connection with the Fisheries case” (id., at n. 157, at p. 359 (emphasis added)). They also note (id.) the signicance of this in relation to the apparent “lack of protest”. See his Report, at pp. 117–118. It might be added that any such domestic revelation of an alleged historic claim hardly amounts to a “notication” or constitutes an ofcial governmental channel of communication of a ‘claim’ to foreign States (see below section 3). As such, the statements by the Special Master and the Supreme Court in the Alabama & Mississippi Boundary case (470 US 93, at pp. 109/10 (1985)) – treating a similar US statement as a “public acknowledgment that Mississippi Sound constitutes inland waters of the Nation”, and putting “foreign powers on notice of a claim even though the claim was not binding in domestic legislation” – seems to underestimate the requirements of international law in this matter. It is signicant also that in US v Alaska (1996) (Report at p. 127), the Special Master put little value on the alleged 1903 ‘claim’ saying that as at the beginning of 1959, no general US rule “had ever been announced” (emphasis added) of claiming as inland waters any waters behind islands that satised a 10-mile rule “except perhaps in the Alaska Boundary Arbitration of 1903”. The important word “perhaps “here indicates his doubt on the validity of any such US ‘claim’, largely on the ground of lack of “announcement” of the claim. Id., at p. 117. Id. Id., at pp. 117/8/9 (emphasis added).

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Chapter 11 the Archipelago] was not at issue before the Tribunal. The Tribunal did not discuss the arguments of counsel or rule on their validity. The arguments take up only a few paragraphs in a seven volume record. For these reasons, it would be unrealistic to conclude that counsel’s assertions at the tribunal should have made foreign nations (other than Britain) aware that the [US] was asserting a right to exclude them. By way of comparison, the [US] properly asserts that it would be unrealistic that the [US] should have notice of historic waters claims based on similar arguments that Libya might make in an arbitration with Tunisia or North Korea might make in an arbitration with China.

The Supreme Court, like the Special Master, accepted that the ability of “one foreign nation to discover” the US argument, when litigating a related issue only, did not mean that “foreign nations should have known of the US position, because this “reasoning carries particular force in the light of the precedent a contrary conclusion would create”; namely, “[i]f [the Supreme Court] were to recognise historic inland waters claims based on arguments made by counsel during litigation about nonmaritime boundaries”, the US (as stated in the US Reply Brief ) “would itself become vulnerable to similarly weak claims by other nations which would restrict the freedom of the seas”; and the Supreme Court was thus reluctant to create a precedent to this effect.18

2. The ‘Publicity’’ must not be too Late in Time The Dissenting Opinion of Judge Oda on the point of ‘late realisation’ in the El Salvador/Honduras case respecting the status of the Gulf of Fonseca is noteworthy in respect of the question of acknowledgment of historic waters status there. As he said, it was not until the rendering of the Central American Court’s decision in 1917 “that the Gulf of Fonseca began to be mentioned in any treatises of international law”; and that “[h]ardly any scholar of international law prior to 1917 had thought that the Gulf of Fonseca had become [a bay]” with “some special status”.19 2.1

Possible later ‘publication’ in Alaska v. US (2005)

Alaska relied in this case on the fact that the US effectively notied foreign States of its claim when it (allegedly) “publicly defended its position on inland waters status” of the Archipelago after 1903 in the one isolated example; namely, in a federal brief in US v California; or, it seems, at least ‘re-notied’ foreign States when allegedly the US “reiterated its stance” to the Supreme Court. Such references to “public acknowledgment” and “publicly defended” seem to imply in this context that this fact 18

19

545 US 75, at p. 90; but cf., Professor Charney’s Report for Alaska on Count 1 (at p. 21) relating to publicity on the 1903 ‘claim’ (“the US position was made known generally through the publication of the entire arbitration in a [US] Senate document”). Alaska’s pleadings (in its Exceptions, p. 23) referred to “publicly stated policy” rather than to a particular publicly stated claim. See also, id., the unrealistic allegation that the Special Master in Alaska v. US (2005) had recognised that “statements of counsel for the [US] – even in a brief to which no foreign nation was a party – can notify foreign nations of a historic waters claim”. Supra, p. 2, at p. 747, para. 27.

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alone put foreign States on (further) notice of Alaska’s alleged historic title.20 However, such alleged late publicity shared, as the Special Master found in the case, the same ‘publicity’ problem alluded to above relating to the alleged original 1903 ‘claim’, namely that it was contained in voluminous pleadings – in this case in domestic rather than international litigation.21

3. Notication Bouchez implies in his leading work that “notication of the claim” is part of the burden of proof lying on the claimant State.22 He sees one of the most important “implications” inherent in this process as being the “establishment of the fact that the notifying State has issued a declaration of a certain purport to the other State(s)”.23 To achieve such adequate publicity, formal notication of such claim would seem normally to be necessary for it to attain sufcient notoriety; so that, at the very least, other States may have the opportunity to deny any acquiescence with the claim by protest etc. In the absence of any announcement of any such claim to the “competent authorities of other States”, Bouchez suggests24 there may be considered to be “no notication at all” (and hence presumably no valid historic claim) unless, in the case of historic bays, the claimant State’s “line of conduct” (seemingly here meaning its enforcement of jurisdiction in respect of same (see below s. 3.2)) may make up for this omission. Even those commentators who have not found some formal mode of notication procedure – whether on a one-to-one or collective basis – to be a vital requirement of claim, have at least admitted its general utility. For example, Pharand says that “[a]lthough formal notication on the part of the claimant’s State is not generally required, it certainly facilitates proof”.25 In Alaska v. US this ‘notication’ factor as to the effect of the alleged historic waters claim by US counsel in the 1903 arbitration (ABT ), was indirectly alluded to by the Special Master when he cited a dictum from the Cook Inlet case26 to the effect that the adequacy of an historical claim is “measured internationally”; and that “[a]ssertion of sovereign authority over waters must give

20 21 22 23 24 25

26

Alaska’s Brief at pp. 14/15 (emphases added). As seen above n. 17. Op. cit., at p. 282. Op. cit., at p. 265 (emphasis added). Id., at p. 265. D. Pharand, ‘Historic Waters in International Law with special reference to the Arctic’ (1971) 21 University of Toronto Law Jnl., 1, 8: (this is, in his opinion, is “particularly so if the maritime area being claimed . . . happens to be located in remote and somewhat inaccessible parts of the globe . . .”); but cf., Professor Charney’s out-of-line viewpoint in his Report for Alaska on Count 1 (supra, n. 11, at p. 11) (“no claim needs to be articulated by any discrete written or oral ofcial notice” so long as a State’s “position is made clear” nor need “actual notice” be given). 422 US 184, at p. 203 (1975).

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foreign nations realistically accessible notice”.27 As one past US ofcial statement relating to the Alexander Archipelago has stressed:28 One problem associated with any historic claim in this area is that there has never been a formal communication by the [US] Government to other governments of any such claim. It is possible that other governments may have obtained copies of the Coast Guard (Pearcy) maps or other maps indicating that the waters of the Alexander Archipelago are internal waters, but we have no evidence that they had such notice.

Implicitly, then, the US itself, in the case of the Alexander Archipelago, had not viewed past alleged US statements (as, for example, during international litigation in 1903) as sufcient ‘communication’ of any possible historic claim to other nations. Additionally, previous alleged historic ‘claims’ to other parts of Alaskan waters have possibly fallen foul of this requirement: see, for example, the Japanese protest in May 1962 relating to the Shelikov Strait (allegedly “never ofcially proclaimed” by the US to be inland waters).29 As Judge McNair remarked in his Dissenting Opinion in the Fisheries case (albeit in a wider context), he found it “strange” that Norway had not “communicated the [straight base] lines to the [UK]” in 1908 (just as in his opinion two Norwegian decrees of the 19th century could not be “said to have been notied to the [UK]”).30 As seen above, past US protests similarly seem to evidence the need for such a process. For example, regarding the Peter the Great Bay claim by the USSR, the US, inter alia, complained that any internal Russian regulations were “not communicated to the Governments of other States . . .”.31 It is for such reasons that the idea of compulsory notication of an historic claim to some international body has been mooted in the past.32 3.1

Notication normally by diplomatic means

Bouchez emphasises that there must, seemingly in addition to proclamation of an historic claim, be “notication” of same, usually through normal diplomatic 27 28

29 30 31

32

Report, at p. 116 (emphasis added). See Alaska’s Ex. 8 in Alaska v. US (2005) at p. 35e (emphasis added). See also Professor Charney’s Report in the case (supra n. 18, at p. 16 (“[s]o long as a claim was made which gave reasonable notice to the community, particularly the specially interested States, that notice remains effective . . .”). See above p. 117 (emphasis added). Supra, p. 2, at p. 177 (emphasis added). See above, n. 7. and Whiteman, op. cit., vol. IV, at p. 256. This is some evidence, perhaps, that the US itself requires proper diplomatic notice of any historic claims. It may be sufcient for a claim to be publicised via a contemporary publication on international legal practice by the claimant State. For example, as in the converse situation concerning the ‘Bayard letter’, in the case of which the US Reply Brief to Exceptions in Alaska v. US (2005) (at p. 13), argued that the letter was “made available to the world” as it was included in the US-published Moore’s Digest of International Law (1906). At the 1930 Hague Codication Conference, 1930. Cf., more recently the submission of Colombia at UNCLOS III (UN O.R. 196 (1975) that claimant States should, in appropriate circumstances, notify a specialist International body – the IHO – of any such historic claim.

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channels.33 In the Fisheries case, for example, France was alleged (by the UK) not to have protested at the 1935 Norwegian decree as this had not been “ofcially brought to its notice through diplomatic channels”.34 Another notication expedient used in the past to publicise alleged claims has been to notify the UN collectively, as in the case of the Libyan Gulf of Sirte claim in 1973, where the claim was made in a note verbale to the UN of October 19, 1973 following a declaration in Libya’s Ofcial Gazette of October 15, 197335 (see Map 5). Actual notication of a claim by diplomatic means at least to the most interested States, may, then, be an implicit, if not explicit, international requirement for establishing an historic claim to waters. It has been asserted36 that “[m]ost Governments abstain from declaring a formal delimitation [of their historic waters] unless some particular circumstances push them to do so”; but this is an overstatement that is by no means reective of actual State practice, particularly in the twentieth century. For example, as seen, Italy in proclaiming its 1977 claim to the Gulf of Taranto (as an historic bay) reportedly notied the whole international community of the decree with an accompanying chart.37 3.2

Follow-up by jurisdictional enforcement may sufce as ‘notication’

It may be sufcient, in appropriate circumstances, for publicity (and so knowledge) of the historic claim to come to other States not via an ofcial communication, but through the claimant’s immediate follow-up of an essentially unannounced ‘claim’ by open exercise of relevant jurisdiction in the claimed waters.38 This is another reason why subsequent lack of open enforcement of jurisdiction in a claimed area against foreign vessels will be fatal to an alleged historic claim. For example, in the Fisheries case it was argued that as no British sheries interests were affected by three of the earlier Norwegian decrees, the UK had “no compelling reason” for taking the matter up with the Norwegian Government.39 3.3 Lack of notication may lead to lack of publicity/knowledge of historic claim by other States It has been perceptively pointed out that, in the Alabama and Mississippi Boundary case, the US Supreme Court seemingly relied on “its misstated tenure of the 10-mile rule to satisfy the requirement of foreign knowledge of [an historic] claim”; but that “[i]ts decision in Louisiana v Mississippi and [a] federal concession in [US] v. Louisiana would appear to be the kind of internal governmental statements that both the 33 34 35

36

37 38 39

Op. cit., at pp. 264, 266. Reply for the UK (by Beckett): Pleadings, 17/10 /51, at p. 374. See T. Scovazzi et al., Atlas of Straight Baselines, supra p. 102, at p. 39; and J.M. Spinnato, ‘Historic and Vital Bays: An Analysis of Libya’s Claim to the Gulf of Sidra’, 1983–84 13 O.D.I.L. 65, at p. 73. See Strohl, op. cit., at p. 253 (seemingly citing Bourquin, Les baies historiques, Melanges Georges Sauser-Hall (1952)). See supra, Chapter 10, n. 94. See supra, n. 24. Statement of Sir Frank Soskice: Pleadings, 28/9/51, at p. 140.

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(Supreme) Court and the State Department contend do not put foreign governments on notice of a claim”.40 In the abovementioned tidelands litigation both the Special Master and the Supreme Court41 thought (controversially) that foreign countries were aware of a US claim to the Mississippi Sound; because, for example, the 10-mile closing line policy for enclosing waters between the mainland and off-lying islands represented the “publicly stated policy of the [US] since the time of the Alaska Boundary Arbitration in 1903” (emphasis added); and because there was no doubt that “foreign nations were aware that the [US] had adopted this policy” (rather than specic claim).

4. Lack of Proper Notication or Publicity as to an Historic Claim gives no Chance to Foreign Nations to Protest Obviously lack of publicity affects the principle of acquiescence. As the UK pointed out more generally in the Fisheries case,42 if a State shows no conclusive evidence of an historic claim being established in its “internal law” at the relevant time, it is “impossible to deduce the acquiescence of States in such a system whether from their action or their inaction”, if there is, in fact, an alleged claim to “exceptional baselines” and consequent “absence of protest”. This is particularly the case where the extent of claim was not known to relevant States or, indeed, the claim was not effectively enforced against third States.43 As Bouchez says, other States “must be in a position to raise objections”;44 and, as seen above, to achieve such adequate publicity, formal notication of such claim would seem normally to be necessary for it to attain sufcient notoriety; so that, at the very least, other States may have the opportunity to deny any acquiescence with the claim by protest etc. It was well stated in one Alaskan ‘historic bay claim’ context – the Cook Inlet case – that given (as seen above) the ambiguity of the Federal Government’s position in that case, “something more than the mere failure to object must be shown”, as the “failure of other countries to protest is meaningless unless it is shown that the governments

40

41

42 43 44

See M.W. Reed, op. cit., at p. 340, fn. 391 (emphasis added). This was particularly so in Alaska v. US (2005) because of the confusion resulting from the immediately countervailing US policy (see above n. 10) (both as to length of closing lines and arcs of circles delimitation around the island groups). This lack of clarity would have sowed doubts in the minds of any foreign State which might have been perceptive enough to pick up the US legal argument in the 1903 Arbitration in the rst place, as would the US public record to the contrary. 470 US 93 at p. 107 (1985). There are good reasons why, in principle alone, this isolated judicial sentiment can be discounted, including that its was not in the requisite international legal sense “publicly stated”. The Supreme Court in US v Alaska (in 1997) authoritatively afrmed that there was no such US closing line policy, at least prior to 1949 (521 US 1, 11–22, especially at p. 18.). Pleadings, Reply of 28/11/50, para. 509, at p. 673. See, e.g., the Juneau Hearings, supra p. 124, at p. 8. Op. cit., at p. 351.

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of those countries knew or reasonably should have known of the authority being asserted ”.45 Here the necessity to “inform foreign governments” of the claim was stressed – a statement broad enough to imply the necessity for more than a mere initial domestically-based action or statement.46

45 46

US v Alaska, 422 US 184, at pp. 203 and 199–200 (1975) (emphasis added). See also the Alabama and Mississippi Boundary case where the Special Master cited the above US v Alaska statement (Report, 1984, at p. 54) and opined that in the instant case “it ha[d] been shown that the government [sic] of other countries knew or ought reasonably to have known of the authority being asserted”. So (id., at p. 55) he found they had thus “acquiesced”.

Chapter 12

THE NEED FOR CONTINUITY OF HISTORIC CLAIM AND FOR SATISFACTION OF THE TIME FACTOR 1. Continuity of Claim The very requirement of continuity of claim implies a claim having been in existence for a considerable time, and hence having some historicity. The UN Juridical Regime in fact mentions both “prolonged” and “continued” periods of claim.1 Blum referred to the need for a “constantly maintained” claim;2 and Bouchez required establishment of State authority “of a permanent character”.3 The continuity requirement in turn is thus interlinked not only with the below-mentioned passage of time requirement (see below section 3), but also with other aspects discussed further below,4 most particularly with the effectiveness of jurisdictional exercise requirement (discussed separately below in Chapter 13). As the UN Juridical Regime states more particularly in the latter regard:5 1 2 3

4 5

Op. cit., at p. 63. Op. cit., at p. 337. Op. cit., at p. 250. Cf. US v. Louisiana (394 US 1, at pp. 23–4, n. 27 (1969) (“exercise of authority continued for a considerable time, so that it developed into a usage”). Such as acquiescence by other States to the claim: see below section 2. At p. 15, para. 104.

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In other words, mere sporadic enforcement of sovereign rights in allegedly historic waters – even over a substantial period of years – will not sufce.6 This requirement means that from the very start of the alleged historic claim there should have been continuity of relevant jurisdictional enforcement in all the relevant waters. Indeed, in the Cook Inlet case, even the US District Court (which found the Inlet to be historic) stressed this requirement. However, as the Supreme Court there pointed out, that court had on the facts wrongly concluded that the US had “continuously” exercised authority over the lower waters of the Cook Inlet “from the Treaty of Cession in 1867 until Alaskan statehood”.7 1.1 The Alaskan Brief allegations as to ‘continuity’ of exercise of jurisdiction in Alaska v. US (2005) In this litigation, Alaska in its Brief impliedly admitted that an historic inland waters claim must be “consistently” held,8 thus inferring the need both for continuity of actual enforcement of relevant jurisdictional attributes (see below) and over a sufcient period of time. The Brief laconically alleged that the US has “asserted authority over the waters of the Alexander Archipelago continuously” since at least 1903 up to statehood in 1959, but initially supplied no clear evidence of this allegedly ‘continuous’ exercise of “authority”.9 Alaska also asserted10 that it could present evidence to support

6

7

8 9

10

Id., at p. 15, para. 103 (emphasis added). See also Blum, op. cit., at p. 337 (“a process of consolidation constantly maintained”, and state authority must “possess a permanent character”); Bouchez (op. cit., at pp. 250/1) (“continuous” jurisdiction as is normal in any prescriptive process for title); and O’Connell (op. cit., vol. I at p. 433). M.W. Reed notes (op. cit., at p. 92) that in one of the only successful historic claims to date in the tideland cases, the Alabama and Mississippi Boundary case, the Supreme Court did not include discussion of the ‘continuity’ requirement; but that its “other holdings” probably made that “unnecessary”. 422 US 184, at p. 196 (emphasis added). See also the Special Master’s Report in US v. Maine (Rhode Island), October 1983, at p. 41 (“this authority must have been exercised for a considerable period of time” (emphasis added)). At p. 18. Id., at p. 16 (emphasis added). This assertion is similar to those made at the Juneau Hearings in 1972 by Governor Egan, where he complained that the ‘Pearcy charts’ (see above Chapter 10) ignored “over 90 years of the US jurisdiction and sovereignty in Alaska” (as well as over 10 years of State jurisdiction and sovereignty) allegedly forming a “continuous pattern of assertion of sovereignty by public authorities going back to the Treaty of Cession” (supra, p. 124, n. 35, at pp. 74, 75 (emphasis added)). Id., at p. 12. See also Alaska’s Exceptions (at p. 8) regarding alleged US “continual and unopposed public assertions of authority over the waters of the Archipelago”; and (id., at p. 25), the 1903 claim not being an “isolated event”.

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its historic claim inter alia on the basis of the second requirement mentioned in the Alabama and Mississippi Boundary case,11 namely “the continuity of [exercise of] authority” in the Alexander Archipelago area; but was vague on detail, talking, for example,12 about the US having “continously claimed”, rather than having continuously exercised jurisdiction in, the areas as such from “at least the turn of the century until Alaska’s admission to the Union”. Interestingly, the later Alaskan pleadings13 did list six pieces of alleged evidence in supposed support of this assertion (allegedly having been continuously “in force”), including the 1903 alleged ‘claim’ itself. All of these seemed technically to qualify only as formal aspects of claim.14 The pleadings did not, however, mention many (or even any) such examples explicitly relating to the period after Russian occupation of Alaska.15 1.2

Necessity for continuity of claim conrmed in Alaska v. US (2005)

The principle of continuity was emphasised in the Report of the Special Master when he stated that even if the plenary Supreme Court (on appeal) were to disagree with his conclusion and, and conclude “that Russia or the [US] did assert authority to exclude foreign vessels, the requirement of long-term continuity would prevent the waters. from having the status of historic inland waters”.16 As the Supreme Court in turn concluded;17 At best, Alaska’s submissions . . . establish that the [US] made one ofcial statement – in the 1903 Alaska Boundary Arbitration [ABT ] – describing the . . . waters as inland, and that the [US] seized one foreign vessel . . . in a manner arguably consistent with the status of those waters as inland. These incidents are insufcient to demonstrate the continuous assertion of authority, with the acquiesence of foreign nations, necessary to support an historic inland waters claim. 11 12

13

14 15

16

17

Supra n. 6, at p. 100. At p. 17 (emphasis added). At other times, the Alaskan Brief only hinted at a US claim to enforce jurisdiction beyond 3-mile arcs in the Archipelago; e.g., when, in mentioning the ‘Pearcy charts’, it talked of the Coast Guard and Interior Bureau of Commercial Fisheries having “relied on these charts for shery enforcement purposes throughout the 1960s” (id., at p. 18). This shery ‘enforcement’ assertion is examined in detail below in Chapter 13. In Responses to the First Set of Interrogatories on question 6; i.e., did the US or Alaska “continuously assert jurisdiction over the waters of the [Archipelago] between 1867 and 1959” (i.e., between the sale of Alaska to America and attainment of statehood) (at pp. 6/7). Cf., Strohl, op. cit., at p. 252. See the Report of the Special Master, at p. 126/7, and below relating to succession of title, Chapter 16. See his Report, at p. 129 (emphasis added). He also referred to the Supreme Court having said previously “that, to establish historic title, a nation must not only have asserted authority, but must also ‘have done so continuously’ ” (US v. Alaska (1996) 521 US, at p. 11); and that the analysis by the judge there “concluded that the [US] and Russia did not sufciently assert authority over the [Archipelago]; so that “[a]ccordingly, the [US] and Russia could not have done so continuously”. 545 US 75, at pp. 91/92 (emphasis added).

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The Supreme Court had previously commented that during the period of early US sovereignty over Alaska between the years 1867 and 1903, Alaska had cited “not a single incident demonstrating that the [US] acted in a manner consistent with an understanding that the [waters of the Alexander Archipelago] were inland”, which thus left a period of 56 years “to demonstrate continuous prestatehood treatment of the [Archipelago] as inland waters”. Thus the court found that this “alone constitute[d] a substantial weakness in Alaska’s position”.18 The Supreme Court also referred to the ‘Marguerite incident’ in 192419 as one example of lack of any continuous claim and as an isolated incident; and it stated that there was “little evidence” that the US (after the ‘Bayard letter’ in 1886)20 “acted in a manner consistent with [the litigating position in 1903]”; enforcement of shing regulations during the rst half of the 20th century being the “sole evidence” of enforcement of the Alien Fishing Act (1906). The Court accordingly concluded that “one incident hardly sufce[d] to demonstrate a continuous policy”.21 1.2.1 The spasmodic nature of Russian actions subsequent to the purported cessation of the 10-year moratorium in the Alexander Archipelago These infrequent Russian actions were set out in the 1903 ABT proceedings. There it was pointed out that after the expiry of the US treaty-based privileges in April 1834, the Governor of Russian America did not (immediately) take “more active steps” (other than delivering a written circular to US captains in the port of Sitka Island) until March, 1835.22 For although there are general suggestions in the 1903 ABT case that Russian vessels were, in 1834, stationed to intercept American traders entering the Archipelago from the south and that these actually chased some traders off,23 the only specic information in these proceedings of actual conrmed enforcement was a report by the Russian authorities in 1835 that some US ships were reportedly expelled from “Russian waters”; and that in 1836 (the Loriot incident) the US sought compensation for the vessel for having been “driven away by a Russian armed brig” and the voyage being “defeated”, where the purpose was “intercourse and trade with the Indians”.24 1.2.1.1 The decision of the Special Master in Alaska v. US (2005) on the continuity issue during Russian times and the Loriot incident In Alaska v. US (2005), the Special Master took particular note of the abovementioned Loriot incident and concluded (after examining the relevant correspondence between

18 19 20 21

22 23 24

Id., at p. 86. Id., at pp. 90/91. See infra, p. 203. See above p. 131. Supra, n. 17, at pp. 90/91. It follows that alleged US exercise of control over “waters contained in and adjacent to the [Archipelago]” since 1867 (and Russian exercise previously) which was supposedly “continuous and with the acquiescence of foreign nations”, is incorrect: see letter of Walter B. Blue to Senator Stevens of 9 May, 1972 (annexed to the ‘Stanley Memorandum’, above, Chapter 6, n. 33, at pp. 186/7). See Proceedings, vol. I, Pt. 2, at p. 69. Id., vol. II, at 72. Id., at pp. 69 and 72 (emphasis added); and see id., vol. II, at p. 249.

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the US and Russia) that, in effect, the Russians were only intending the US vessel to leave the Russian waters in two harbours; and that nothing in the relevant correspondence from Russia indicated that the Russian-claimed “waters” referred to or included “all of the Alexander Archipelago”; and indeed these may have included only “waters within the distance of a cannon shot”.25 There was thus no suggestion at the time that this Russian interdiction was done outside 3-mile limits from the coastal islands. The reference to its illicit trading motives was, in any case, addedly signicant from a point of view of non-innocent passage.26 Thus Alaska was found not to have produced any evidence to show Russia continuously attempted to exclude vessels from innocent passage through the waters so as to found a Russian-based ‘successional’ claim for the US. Any initial enforcement against US vessels (and not, it seems, against British or other nationality vessels) could not be seen, on this evidence, as effective or continuous enforcement of a claim to internal waters in the whole of the Archipelago, even if the Russian naval presence was said at the time to be for the purpose of intercepting foreign vessels “entering the inland waters of the colony”.27 1.2.1.2 Alaska v. US (2005): lack of evidence of any Russian enforcement in the later 19th century in Alaskan waters outside 3-mile limits The situation after 1835 did not involve any Russian interdiction of innocent passage in the Archipelago or indeed control of sheries there, even in the period immediately preceding 1867 and the sale of Alaska to the US. The only slight contrary evidence against this was in 1853, after (Russian) Governor Tickmenieff reportedly complained to the Russian Government that foreign whalers were entering Russian waters and requested Russian cruisers to prohibit the action so that “no whalers entered the bays or

25 26

27

Report, at p. 37. See the Special Master’s Report, at pp. 33–37 quoting a letter from J. Forsyth to G.M. Dallas of 4 May, 1837. On the Loriot incident, see the US Reply Brief to [Alaska’s] Exceptions, at p. 12 (as it was seeking to enter Russian harbours for purposes of trading, it was “not engaged in innocent passage, and was therefore subject to exclusion”). ABT Proceedings, vol. II, at p. 70. Addedly, ofcial instructions to Russian naval ships in 1835 were narrowly worded, aimed at preventing foreigners entering the Tongas strait “to trade with the natives” (id., (emphasis added)); see also the note of Nesselrode to Count Kankeen saying the same thing (id., at p. 245). Thus it appeared at this time, in both ofcial Russian and US circles, that it was mutually assumed that only aspects of trade were being denied by dint of treaty stipulation rather than by any broader historic right as to maritime jurisdiction outside traditional maritime limits. As such, the situation appoximates to the decrees and legislation made by the King of Hawaii in the 19th century which were found never to have been effectively enforced in inter-insular waters in the case of CAB v. Island Airlines (1964). There the District Court of Hawaii found that the only pre-cession evidence of title comprised an old statute (of 1846), a resolution and proclamation (of 1850 and 1854 respectively); and that the records of the Hawaiian nation disclosed “no other manifestation of any claim to the channels between the islands for the next 44 years, i.e., until annexation” (supra, p. 24, at p. 998 (emphasis added)). So that there was, in that case, strong evidence that “Hawaii’s claim had been considered an empty gesture, or entirely abandoned” (id., at p. 999 (emphasis added)).

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gulfs”.28 However, quite apart from the geographical uncertainty (there is, for example, no reference to “interior waters” here as in the 1820s treaties), there is no evidence such requested action was ever implemented by Russia. What is more, the nine or so year period after 1835 during which the US apparently contested with the Russians (after the abovementioned Loriot affair) the extent of Russian maritime rights in the waters of the Archipelago showed at the very least – during this important period – a lack of US acquiescence in a Russian historical claim and an early breakage in any continuity of jurisdictional control.29

3. The Time Factor: How Long? The very word ‘historic, of course, implies a claim that has been longstanding and stretching back into history. In this respect the historicity aspect parallels the ‘time’ requirement for prescriptive title in domestic legal systems.30 Thus the whole doctrine militates against claims which have only been made in the recent past. For example, in Tunisia/Libya, the Libyan Memorial alleged that the Tunisian assertion of an ‘historic’ title to the Gulf of Gabes was, so far as could be ascertained, “relatively new”, although discussion of the status of the Gulf was “to be found in academic writings”.31

28

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30 31

Emphasis added. K.W. Stanley cited this isolated Russian order to exaggerated and questionbegging effect by concluding (but not specically relating to the Alexander Archipelago), that this action leaves “no doubt but that Russia considered the gulfs, bays and inland seas about Alaska as owned by her”; see “A Proposed Sea Boundary for Alaska”, May 16, 1966, reprinted and edited May 1970 (Division of Lands, Dept. of Natural Resources, Alaska (Copyright National Bank of Alaska), at p. 9. The US Brief of 1964 in US v. California (supra, p. 127, at p. 140, fn. 108) did indeed refer to Russia reportedly issuing orders in 1853 relating to the North Pacic (north of 54° 41') – i.e., seemingly, including the shores of Russian America along the Alexander Archipelago – “to see that no [foreign] whalers entered the bays [its] gulfs, or came within 3 Italian miles of [its] shores”. But again here the wording is jurisdictionally restricted, referring solely to “whalers” – which implies other vessels then had free navigation in such waters; and it specically mentions a three-mile limit. One isolated (and theoretical) US claim was much later made to successional rights outside this limit. This was during the fur seal dispute, when it was initially alleged in 1890 that in regard to the waters of the Behring Sea, whatever duty Britain owed to Russia passed to the US “on transfer of sovereignty to the United States” – a claim to succession to maritime rights (see Moore, op. cit., vol. I, at pp. 901/2); but, as seen and as further discussed below, this was quickly abandoned. Jessup (op. cit., at pp. 26/27) mentions, the (later) provisions of the Russian Rules of Sea Fisheries of 1893 which barred foreign sealers from approaching within 10 miles of certain coasts and 30 miles of others, but that in discussions with the US and Britain there were “indications” that Russia “recognised the three mile limit” whilst “seeking to justify her laws on the grounds of ‘legitimate self-defence’ ”. See, e.g., Bouchez, op. cit., at 251. See Pleadings, vol. 1, para. 139, p. 505.

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That length of time is still an important international legal requirement of historic claim has been emphasised in the El Salvador/Honduras case, where the ICJ quoted from the 1982 decision of its own Court in the Tunisia /Libya case,32 namely that “[h]istoric titles must enjoy respect and be preserved as they have always been by long usage”. Just how long the claim must have been in existence (and, as seen above, continuously exercised) is a matter of some doubt. Bouchez, for example, vaguely says the “periods of time will always depend upon the concrete circumstances”.33 The time factor may arguably be tempered or watered down by a controversial “fourth” requirement of “vital interests” which may (allegedly) sustain a ‘quasi-historic’ claim even if the historical element is “lacking”.34 Thus, as the UN Juridical Regime admits,35 “no precise time can be indicated as necessary to build the usage on which the historic title must be based”; and that it “must remain a matter of judgment when sufcient time has elapsed for the usage to emerge”. Consequently, it merely talks of a “considerable time” being necessary.36 In the same way, different writers at most only venture to suggest tentative minimum time periods, or give none at all.37 Such views were cited by the US Supreme Court in the Alabama and Mississippi Boundary case.38 Thus, like prescriptive rights in international law generally, it is invidious to speculate on the legal minimum. It has, however, been suggested that in successful cases the claim should normally have existed for at least 100 years.39 As a working rule, therefore, it would seem that the alleged historic claim should usually have existed for at least a century. As the UK argued In the Fisheries case,

32 33

34 35

36 37

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Supra p. 2, at p. 589, para. 384. He cites (op. cit. at p. 254) Fauchille, Traité de droit international public vol. 1 (Paris), 2nd pt., at p. 762, who suggests 30 years is sufcient. See also the authorities set out in the 1957 UN study on Historic Bays, supra p. 11, n. 53, at pp. 35–36. As the latter comments (id., at para. 190): “[e]xpressions such as ‘of long standing’, immemorial’, ‘conrmed by time’ or ‘well-established’, which occur both in judicial decisions and in the works of authors, all suggest a fairly long period but do not give a clear indication of its exact duration”. See also, for example, the vague wording of the JCPC in Direct US Cable Co v. Anglo-American Telegraph Co Ltd ((1877) 2 AC at p. 394) relating to the status of Conception Bay in Canada (Britain “has for a long period exercised dominion”). UN Juridical Regime, at p. 13, para. 80. On ‘vital interests’, see below Chapter 15. Id., at p. 15, para. 104. On sufciency of time, see also id., at p. 15, para. 101 referring to necessary “usage” and discussing the “great variety of terms” used here to describe this. Id., at p. 15, para. 103. Cf. US commentators: e.g., Jessup, op. cit., at 476 (“continuous use over a long period should be considered sufcient”); Shalowitz, Shore and Sea Boundaries, op. cit., at p. 49 (1962); and M.W. Reed (op. cit., at p. 338) (an historic claim must have existed, and been consistently asserted, “over a substantial period of time”). 470 US 93, at p. 102 (1985). See argument of Britain in the Fisheries case infra, n. 40.

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“[m]ore than a century-old custom” should be in evidence to support an historic claim,40 though the time span need not necessarily be based on “immemorial usage”.41 In one of the few judicial references in international caselaw to this requirement of historical title, Judge Alvarez in his Separate Opinion in the Fisheries case42 acknowledged (in a manner similar to the analysis, as seen, in the UN Juridical Regime) that “international law does not lay down any particular time necessary for prescription to have effect”; but that even a “comparatively recent usage . . . may be of greater effect than an ancient usage insufciently proved”.43 The fact that a claim must have been in existence for a considerable time obviously militates against alleged historic claims made in the last century. For example, in Tunisia/Libya, Libya pointed out that the Tunisian ‘historic’ claim to the Gulf of Gabes was made only in 1973, so that the time requirement “could not possibly have been met”.44 3.1

US caselaw on the time element

As one US commentator has pointed out,45 “American practice has done little to make the [time] requirement more specic”. However, US judicial opinion seems to have veered towards requiring at least 100 years of claim. For example, in the Alabama and Mississippi Boundary case, the Supreme Court found that the US had “effectively exercised sovereignty over Mississippi Sound as inland waters from the time of the Louisiana purchase in 1803 until 1971”; and that although the length of claim was not there “specically in issue”, the Court “clearly considered 168 years to be sufcient”.46

40

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44 45 46

Quoting an ofcial Swedish statement of February 11, 1925, set out in Jessup, op. cit., 413 at p. 418 (regarding the claim to Laholm Bay). See also Edeson, ‘The Validity of Australia’s Possible Maritime Historic Claims in International Law’ (1974) 48 Australian Law Jnl., 295, at p. 302, who suggested just a little less being sufcient in the Australian case of Shark Bay (namely that (then) almost ninety years was “ample” to full the time element). See UN Juridical Regime, at 15; and Bouchez, op. cit., at p. 256; but note the Central American Court’s description in the Gulf of Fonseca case ((1917) A.J.I.L., at p. 705), namely “secular or immemorial possession”. Although some writers have mentioned immemorial usage (e.g., Westlake), the UN Juridical Regime states that the “addition of the word ‘immemorial’ is of little assistance” (at p. 15, para. 104). Supra p. 2, at p. 152. The ICJ in this case (albeit on a broader front in the maritime context) declared that “the general toleration” of foreign States regarding the Norwegian practice was an “unchallenged fact”; and that for a period of “more than sixty years the [UK] Government . . . in no way contested it” (id., at p. 138, cited by Blum, op. cit., at p. 74). See also Bouchez, op. cit., at p. 257. He somewhat paradoxically – in the light of the last part of Judge Alvarez’s statement above – has suggested that there is a possible case for arguing that the progressive improvement in inter-State communications in the world – and hence more easily acquired knowledge on dubious maritime claims – may point towards a more recent historic claim being legitimated by a shorter period of time. See Reply of Libya, Pleadings, vol. 4, at p. 117, para. 3. M.W. Reed, op. cit., at p. 338. 470 US 93 at p. 102 (1985); and in this case, an 80 years’ old claim (dating from 1906) was also deemed to be sufcient: id., at p. 107. See also the Special Master’s Report in that case that for “more than half a century it was accepted by the [US] that under the Mississippi Act of

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On the other hand, in US v. Florida, options and oil leases for 9 years from the 1940s were found not to be “sufciently remote in time” (to meet the second criterion for historic waters); but in the same case a boundary dating from 1868 was said “certainly” to be remote enough in time.47 The Special Master concluded in that case48 that if the claimant State’s constuction of the 1868 constitutional boundary description was correct (which it was not in his opinion), “this origin would certainly be remote enough in time to satisfy the second criterion for historic waters”. 3.1.1 The time factor and Alaska v. US (2005) In Alaska v. US (2005), the Special Master pointed out as regards the historic time factor that “two other [US] cases have said that certain shorter periods do not sufce”;49 and that three US cases suggested that “a period of more than 100 years would sufce”.50 In the instant case, however, he did not accept the Alaskan claim that the historic claim had ripened at the time of statehood in 1959, saying that a “deadline of 1959 . . . does not leave much time for the establishment of historic inland waters status”; and that even if the US argument at the 1903 ABT case had constituted “a sufcient assertion of authority”, that would then have left “only 56 years for the historic waters claim to ripen”.51 He added that “a later date” (than 1903) would “presumably” be too late in time.52 However, he acknowledged that, if contrary to his recommendation, Russia and the US had “continuously asserted” relevant authority “since 1824”, the 135 year period between then and 1959 “would have been long enough to satisfy the element of continuity”.53

47 48

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50

51 52 53

Admission . . . Mississippi Sound was inland waters”: Report, April 9, 1984 at p. 33 (emphasis added). M.W. Reed comments (op. cit., at p. 93) that the US Government did not “contend that the span was insufcient to constitute a ‘usage’ ”. Report of January 18, 1974, at p. 46. Id., at p. 42/43. See also the Massachussetts Boundary case, Report of the Special Master, October 1979, at p. 69 (52 years’ purported exercise of jurisdiction over Nantucket Sound was not “for any appreciable continuous period of time”). Similarly in US v. California, the Special Master, in nding that California’s alleged historic claim was made in a Californian statute of 1949 – the “rst explicit assertion by California” – implied that this was, in any case, too recent (Report, October 1952, at p. 39 (emphasis added)). Report, at p. 130. For example, he specically referred to the Special Master’s Report in the Massachusetts Boundary case where 53 years was found to be “too brief a period for Nantucket Sound”. Id., at p. 130. He refers not only to the Alabama and Mississippi Boundary case, but also to US v. Maine (Massachusetts Boundary case) (October term 1984, No. 35 Original) where the Special Master had concluded that 192 years was sufcient for Vineyard Sound to become an historic bay; and to US v. Florida wherein the Special Master had indicated that 105 years would have been sufcient to make Florida Bay an historic one. Id., at p. 131. Id., at pp. 130/131. Id., at p. 131, fn. 37. Even if there had been any later ofcial afrmations of the original alleged claim after 1903, they might, in their own right, not have been in existence long enough. For example, if the historic claim effectively had dated from the publication of the Pearcy charts, i.e., from 1972 in the post-Statehood period, this would be, in itself, too short a timespan.

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3.2 When (historic) time begins to run As seen in Chapter 8, the problem of xing the point from which time ‘starts to run’ can create ambiguities as to whether certain international requirements for historic title have been satised; and its legal effect may be problematical, for example, relating to a “latecomer” State and its inter-relationship with ‘acquiescence’ aspects.54 For this reason some commentators have mentioned the need to x a “critical date” when time starts to run.55 As the UN Juridical Regime states, time cannot run until “effective and public” sovereignty has been fullled.56 An added problem here, though, as seen in Chapter 8, is that even a comparatively recent announcement by a State of a particular claim to historic waters may be retrospective in emphasis and thus be seemingly backdated to an unrevealed time. For example, the Kenyan claim on 6 June, 1969 to Ungwana Bay (otherwise known as Formosa Bay) was then declared an “historic bay constituting internal waters” in order to “safeguard the vital interests of the inhabitants of the coastal region and to conrm the practice which has always existed”; and so smacked of a retrospective claim. The Kenyan Territorial Waters Act (No. 2 of 1972) added to this interpretation by saying that for the purposes of Art. 7 of the TSC, 1958, this bay “shall be deemed to be, and always to have been, an historic bay”.57 3.2.1 Problems as to the ‘critical date’ in Alaska v. US (2005) In an internalised federal dispute as to existence of component state’s historic waters, more particular problems arise in this regard. In Alaska v. US (2005), for example, it was argued that the “critical date to decide whether or not historic waters exist is the date that the dispute arose”; and that the court should thus decide the dispute on facts

54 55

56 57

In fact, the whole of the nineteenth century evidence was found to be insufcient to support Alaska’s alleged historic ‘claim’; and this effectively put back the alleged Alaskan ‘claim’ to start at 1903 in the Alaska Boundary Arbitration (ABT). The period of time up to Alaskan statehood, though less than a century old at the time the US/Alaska dispute started, could have sufced, but, of course, only if a viable historic ‘claim’ was then made by the US. See Alaska’s Exceptions (at p. 31), where it was alleged that “even ignoring Russia’s actions [i.e., those in the 19th century], the [US]’s own continuous 68-year claim from 1903 to 1971 [was] more than sufcient to establish the area as historic waters”. It cited in support the Chesapeake Bay situation – rst claimed in 1885 and (allegedly) listed among the world’s historic inland waters in 1927 (only “42 years later”). See infra, Chapter 14, section 1.2.2. See, e.g., Scovazzi, supra p. 118, at p. 326 who says: “Ce n’est qu’à partir du moment ou devient manifeste la volonté de l’Etat côtier d’exclure les autres Etats des activités se rapportant à une étendue d’eaux déterminée qu’on peut évaluer l’issue d’une revendication historique”; and that (id.): “[i]l faut établir une sorte de date critique, attendu que les Etats tiers ne peuvent pas être astreints à accepter ou contester une prétention demeurant secrète ou vague” (emphasis added). At p. 18, para. 124. See Scovazzi et al., Atlas of the Staight Baselines, 2nd ed, 1989, p. 24 (emphasis added).

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occurring before 1971, or particularly on the date Alaska became a State.58 Count I, para. 7, of the Amended Alaskan Complaint alleged, as seen, that the ‘inland waters’ claim dated “[f]rom at least 1903 [i.e., the ABT ] until 1971” during which time, the “United States took the position in its international relations and its litigation with the States . . . that the waters of the Alexander Archipelago were inland waters, including the pockets and enclaves more than three miles from the coast line of the mainland and any of the islands enclosed behind the closing lines drawn by the United States to mark the seaward limit of inland waters at the 1903 Alaska Boundary Tribunal [ABT] arbitration . . .”. It may thus be argued, as seen above, that in Alaska v. US, a date of 1903 constituted the “critical date” at which the alleged origins of the Alaskan historic ‘claim’ were to be assessed.59 This meant that if the federal entity did not make (as in fact proved to be the case) valid historic title pretensions then, any subsequent ones would be too late in time.

4. Inter-Relationship of the Continuity and Time Principles with other Factors The continuity/time aspect tends to interrelate not only with the ‘effectiveness principle’ (see the next Chapter) but also, most obviously, with the requirement of international acquiescence, inasmuch as the longer the claim has been existence the lesser may be the required degree of such acquiescence.60 The UN Juridical Regime has rightly opined that the requirement of time inter-relates with the requirement of “international reaction”, i.e., acquiescence;61 and among the past commentators, Blum, in particular, argues that the time factor is relevant in such a situation “precisely to the extent that an inference of acquiescence may be drawn from it”; but he also views the presumption of acceptance of an exceptional claim being strengthened by the efux of time; and hence an interconnection between two.62 Conversely also, the shortness of period of claim may be compensated for by the speed and extent of foreign State acceptance of same.

58 59

60

61

62

Professor Charney’s Report, supra p. 144, at p. 14. That 1903 was the critical date in this instance is borne out by the fact that later alleged US references to an inland waters claims in the Archipelago do in fact all hark back to this date – or indeed much later (i.e. the 1930s). See infra, Chapter 14, section 2.4, and UN Juridical Regime, at p. 18, para. 120; also Blum (op. cit., at pp. 188/9 and 191) where he views the time element as implying acquiescence. At p. 15, para. 105. For example, Tunisia in Tunisia/Libya (see Tunisia’s Memorial, Pleadings Vol. 1, at p. 105, para. 4. 89) mentioned, regarding the Gulf of Gabes, not only “l’absence de contestation du titre de souvereignté de la part des Etats tiers”, but also that the ancient nature of the Tunisian occupation corresponded (id., at p. 106) with the acquiescence of other powers, thus evidencing the interrelationship between time factor and acquiescence. Op. cit., at pp. 55, 254.

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This interrelationship has been referred to in past diplomatic protests about perceived illegal maritime claims, as, for example, the US protest in the case of the Cambodian and Vietnamese joint claim to part of the Gulf of Thailand as being historic waters in 1982. As the US protest note indicated, “given the nature of the claim rst promulgated in 1982, such a brief period of time would not permit sufcient acquiescence to mature”.63

63

See Roach & Smith, op. cit., at 40 (emphasis added).

Chapter 13

THE NEED FOR EFFECTIVE EXERCISE OF JURISDICTION 1. The General International Requirements 1.1 A formal act is not enough The UN Juridical Regime states that:1 “the intent of the State must be expressed by deeds and not merely by proclamations”. Thus Blum2 asserts that even “legislative measures” per se (assuming a variety of names) will, as a rule, not be regarded as “adequate and sufcient measures” of display of sovereignty. This aspect was well put by a US Court in 1964, CAB v. Island Airlines, to the effect that “the activities carried on by the state in the area in question must be something far more objective than simply and solely internal verbalisation, i.e., local legislation or proclamation”.3 As the Counter-Memorial of El Salvador in El Salvador/Honduras stated “mere paper

1 2

3

Op. cit., at p. 15, para. 98, citing Borquin, op. cit., at p. 43. Op. cit., at p. 117. See also O’Connell, op. cit., at p. 423, who says some US judicial statements are “too generalised”; and that “the sovereignty claimed must be expressed by deed and not just by proclamation”; e.g., keeping foreign ships or foreign shermen away from the area, or taking action against them. Civil Action No. 2162 (D. Hawaii), cited in Whiteman op. cit., vol. 4, at p. 249 (emphasis added).

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assertions do not establish rights and the absence of protest against them does not improve the position of the claimant”.4 The requisite additional factor is normally termed effective enforcement of jurisdiction (see below).5 International caselaw supports this viewpoint. Blum comments, for example, that it is noteworthy that the Court in the Gulf of Fonseca case (1917) attached importance to the fact not just that the riparian states had legislated for the Gulf, but also had “enforced the relevant legislative measures”.6 Bouchez goes further and asserts that whereas “both [i.e., formal claim and effectiveness] are conditions sine qua non”, the latter is in fact of “greater importance”.7 The need for actual ‘enforcement’ of claims has accordingly been recognised in past international writings and decisions.8 The up-shot of the general rule is that even a relatively ancient symbolic act alone will be insufcient to support an alleged historic waters claim.9 Thus even such an oldestablished formal act, without subsequent effective enforcement, may be insufcient under the intertemporal law of the sea standards of today to evidence an ‘historic’ waters claim,10 even if it is based on the vaguer notion of “ancient rights”.11 This can mean that a later follow-up process to, for example, an alleged pre-statehood (e.g., colonial era) formal claim, may, as will be seen in Chapter 16, be critical; and, for this reason, the more recent history of an alleged historic claim may, paradoxically, be very important. Thus, in respect of past Australian alleged historic bay claims, it has been stated that more recent “federal action” (as opposed to older “imperial action”) may be “at least in theory, more important, for it will indicate whether a title developed during the [previous] century by imperial activity has still been maintained”.12 1.1.1 Afrmation of insufciency of formal claim alone in US tidelands litigation US caselaw also supports this international requirement. As was stated by the Supreme Court in US v. California, a mere formal act (in this case a legislative declaration) “without evidence of further active and continuous assertion of dominion over waters is not

4 5 6 7 8

9

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11 12

Pleadings, vol. III, at p. 612, para. 8.29. See below section 2. Op. cit., at p. 257, quoting from 11 AJIL (1917), at pp. 700/701. Op. cit., at pp. 250 and 251. See, e.g., the North Atlantic Fisheries Tribunal decision (Proceedings, vol. I, at p. 95, cited by Jessup op. cit., at p. 387) stating that Britain had “enforced [its] claims specically in statutes or otherwise”. G.N. Barrie, in ‘Historical Bays’ (1973) 7 CILJSA 39, at p. 49, comments that the Tribunal there opined that omission of any enforcement action by Britain should not necessarily justify a conclusion that no claim existed. This applies (as seen) a fortiori to an historic ‘claim’ made solely by a judicial decision in domestic law: cf. the UK pleadings in the Fisheries case that a mere domestic judicial decision is not adequate to prove such title (supra). As Bouchez says (op. cit., at p. 250), such States may manage subsequently (and successfully) to “re-acquire” such rights which satisfy the contemporary law. See above Chapter 5, section 4. W.R. Edeson, ‘The Validity of Australia’s Possible Maritime Historic Claims in International Law’(1974) 48 Australian Law Jnl., at p. 295 (emphasis added).

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sufcient to establish the claim . . .”.13 There was later re-afrmation of the requirement by the Supreme Court in US v. Alaska in 199714 (the coastal State must have “effectively exercised sovereignty over the area”); and in Alaska v. US (2005), where the Special Master endorsed15 the Supreme Court ruling in the abovementioned California case, in afrming that “state legislative declarations [in themselves] do not sufce”.16

2. The “Effectiveness” Principle It is well established in customary international law, then, that an historic claim to waters must have not only been continuously exercised (as seen above),17 but also effectively, enforced after the ‘critical’ date of formal claim in the past. The state activity required for this should constitute what the UN Juridical Regime calls “effective exercise of sovereignty over the area” by the claimant State18 – a matter on which the claimant State has, as in all other aspects of alleged historic claim, the burden of proof.19 In essence this requirement seems to require a claimant State to be seen to exercise every opportunity of enforcing its relevant jurisdiction in the historically-claimed area of seas. 2.1

More than continuity of jurisdictional exercise necessary

As seen above in Chapter 12, continuity of the formal claim to historic waters is, in its own right, vital; but equally vital is the systematic practice subsequently of actually enforcing the claim over time. In a synthesised way, Bouchez (as seen) mentions20 that “effective exercise” is important in two respects, namely “with regard to its intensity and its relation to continuity”. Thus the requirement of ‘effectiveness’ goes hand in hand with the requirement of continuity of enforcement jurisdiction, in respect of which it is really the other side of the same coin. Accordingly, the ‘effectiveness’ requirement has included in US caselaw also the idea of ‘continuity’. For example, in the Cook Inlet case,21 mere exercise of government authority “at some time” was held not to be sufcient. At an early stage in tidelands 13

14 15 16 17 18 19

20 21

381 US, at pp. 174–5, cited subsequently, e.g., by the Special Master in the Rhode Island case (Report, 1983, at p. 19). See also the Supreme Court’s statement in US v. California (381 US 139, 172 (1965)) to the effect that “dominion” must have been “asserted and maintained” (emphasis added); and CAB v. Island Airlines (quoted by Whiteman, vol. 4, op. cit., at p. 249) where the US District Court stressed that effective demonstration of “exercise of sovereignty” must show intent “by deed and not merely by proclamation”. 521 US 1, at p. 11 (1997). Report, at p. 116. 381 US at 172/3. See, Chapter 12, section 1. At p. 15, para. 100. See Basis of Discussion No. 8 at the Hague Codication Conference (cited by Judge Oda in the El Savador/Honduras case, supra p. 2, at p. 740, para. 16). Op. cit., at p. 250. US v. Alaska, 394 US 11, at p. 12.

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litigation, the Supreme Court in US v. California22 had described Californian reliance on a single act of criminal jurisdiction as insufcient; and in similar circumstances in US v. Louisiana,23 the Special Master characterised an “isolated incident” of a maritime arrest as “not meeting the [required] tests . . . for establishing an historic claim” (and that “[c]ertainly no continuity [was] indicated” in respect of the alleged arrest of 3 Mexicans for shing 4.3 miles from shore in either the year 1946 or 1947). Similarly, in US v. Maine,24 the Supreme Court strengthened its conclusion regarding there being no historic title to Nantucket Sound by noting the “consistent failure to assert dominion over” the Sound since the time of the Commonwealth. US past practice internationally has reinforced evidence of this requirement. For example, in the US protest to Libya over its Gulf of Sirte claim in 1974,25 the US alleged, inter alia, that the claim “did not meet the international law standards of past, open, notorious, [continuous] and effective exercise of authority to be regarded historically as Libyan internal . . . waters”. Here this requisite “display of sovereignty” was seemingly lacking also under precedessors in title, i.e., during Italian domination and, even previously, under Ottoman rule.26 2.1.1 In a federal State context, component state activities in exercise of jurisdiction may qualify as well as federal ones to evidence effective enforcement Obviously in a maritime dispute involving two or more nation States in respect of historic title, the supposed international legal rules on historic title can be reasonably easily applied; but in a dispute between a sovereign entity (as the USA) and a component-state of the federal entity (which, of course, has no international personality in its own right) certain problems arise. These are largely because, as past US caselaw evidences, the non-federal entity is, as it were, ctitiously given powers of national ‘statehood’ which are largely on a par with the international personality itself (i.e., the federal entity), in a context where international law governs.27 Thus in a componentstate/federal context, the US itself – and so by implication a component state of the Union – may, in appropriate circumstances, rely on the component state’s enforcement activities, such acts being analogised to those of a true nation State; and so a ction is evident in past tidelands caselaw of treating the component-state entity as if, for some purposes at least, it was a foreign nation-State in its own right. As was stated in US v. Louisiana:28 22 23 24 25

26 27 28

381 US 139, at pp. 174–5. Report of the Special Master, July 1974, at pp. 20/21. 475 US 89, at p. 103. See A. Rovine, Digest of US Practice in International Law (1974), at p. 293 (cited by Francioni, ‘The Status of the Gulf of Sirte in International Law’ (1984) 11 Syracuse Jnl. of International Law and Comm., 311, at p. 313 (emphasis added)). Francioni, id., at p. 322. See US v. California 381 US 139, 165(1965). 394 US 11, at pp. 77/78 (emphasis added). See also the Special Master’s Report, 1974, at pp. 15/16; and J.M. Zimmerman, ‘The Doctrine of Historic Bays: Applying an Anachronism in the Alabama and Mississippi Boundary case’, (1986) 23 San Diego Law Review, 763, at p. 777 (“the claim of [historic title] is to be treated as if it were asserted by the federal government and opposed by foreign nations”).

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The only fair way to apply the [TSC’s] recognition of historic bays to this case . . . is to treat the claim of historic waters as if it were being made by the national sovereign and opposed by another nation. To the extent the [US] could rely on state activities in advancing such a claim they are relevant to the determination of the issue in this case.

In other words, in this domestic context, prima facie the state-federal aspect has had to be looked at (to some extent) separately in the sense of both the ‘actors’ being equivalent to unitary foreign states vis-à-vis each other; but (for the purpose of effective exercise of jurisdiction) the assertions of authority of both the federal and the State entities are to be considered together in applying the doctrine externally; as if, in the latter instance, they are compositely the equivalent of one nation acting against another (or other) nation(s). So that in this latter instance it does not matter whether the title elements are being “asserted by the federal or state governments or both”.29 Past statements from US caselaw perpetuate this articial dichotomy in terms of international law; for example, the US District Court in CAB v. Island Airlines (1964) stated that the “United States” had “[n]ever made any claim [to the Hawaiian waters] either locally, nationally, or internationally”.30 This articiality does not, however, extend to the domestic judicial assessment lowering the standard of the requirement of effectiveness of jurisdictional acts from that of international standards. In, for example, the Cook Inlet case (1975), the Supreme Court stated (citing previous caselaw and with particular reference to the “exercise of authority” aspect), that “[t]he adequacy of a claim to historic title, even in a dispute between a State and the [US], is measured primarily as an international, rather than a purely domestic, claim”;31 but, for this purpose, both component-state acts and federal acts were taken into account here.

29 30 31

See Zimmerman, id., at p. 777. 235 F. Supp. (1964), 990 at p. 1006. 422 US 184 at p. 203 (emphasis added). As Goldie points out, in the Cook Inlet case, when the Supreme Court referred to the Federal Government’s “ambiguous position” over Alaska’s position there, it “stressed the international dimension of a claim to [historic title], even in a dispute between a state and the [US]”; and that the Supreme Court, in hearing state/federal disputes, “does not sit as an international tribunal, but as a domestic one” (loc. cit., supra p. 101, at p. 246 (emphasis added)). A related problem to this is that inland waters claims mentioned or made in domestic federal-state litigation may be treated by foreign States as not concerning international boundaries (as seen above), but merely domestic ‘SLA’ claims. This adds to the problem of accurately assessing foreign State acquiesence in any alleged US historic claim, causing, in particular, problems for foreign State assessment of the validity of a purported disclaimer by the federal Government, which in this context is not totally analogised to the act of a nation state for good reasons of policy (see US v. Louisiana 394 US 11 at p. 77 (1969)); and where denials by the federal Government of sufcient acts of sovereignty etc. may not, when litigation interposes, be accepted by the Special Master or the Supreme Court (as in the Alabama and Mississippi Boundary case). As Zimmerman rightly concludes (supra, n. 28, at p. 783), “by modifying the doctrine [of historic waters] for the purpose of domestic submerged lands disputes, the complexity of the evidential considerations increases substantially”. Thus such domestically-oriented “modications” in the past US caselaw have been criticised as being allegedly “unworkable” where “the exercise of authority by a state [entity] contradicts that of the federal government” and both hold inconsistent viewpoints: see Zimmerman, id., at pp. 784/785, who cites the Alaskan incident in 1962 (id., at pp. 784/5)

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The same problem has surfaced, but less obviously, in other federally-composed common law countries. For example, in the Australian context, Edeson notes that, relative to the probative value of state acts alone, “before federation, the [Australian] colonies probably had no authority to initiate maritime historic claims without imperial sanction”; and that, since federation as Australian states, they had no constitutional authority to extend or alter their maritime territorial limits. So that this might “lessen the probative value of colonial and [component] state activity”.32 O’Connell sums up this dilemma well when he states that (in the 1969 Louisiana case) it was “important to direct the Special Master concerning whether State as distinct from Federal actions were relevant in a contest between the State and Federal Governments”; and that the Supreme Court recognised the US (federal) position was that it could “rely on State [of the Union] assertions of authority in order to establish an historic title internationally, but the question was whether the State [of the Union] could rely upon such assertions as against the United States”.33 For, of course, any component-state-based acts must in this context comply with federal guidelines.34 As was said, for example, in US v. Louisiana,35 the “actions of local governments, if not repudiated by or inimical to the interests of the national sovereign, are assertions of dominion as against other nations”. Historic waters claims in US domestic law have thus had to be analysed in the light of the pre-eminent position of the federal Government in conducting foreign affairs and international relations generally. The potentially subsidiary role of mere state activities was referred to by the Special Master in his Report in US v. California, to the effect that if (as he found) the federal Government had not exercised effective jurisdiction in the claimed waters, the “answer to [the] question must, therefore, depend, upon whether the acts of California [i.e., the component-state entity] can take the place of, or amount to, effective assertion by the [US]”; in which latter regard he recognised the superior authority of the federal Government.36

32 33

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where the US effectively disapproved of the state of Alaska’s assertion of (shing regulations) against the Japanese in Cook Inlet and took “no formal position on the issue” (id., at p. 785); and by failing to support Alaska, this action indicated (he claims) federal disapproval over the assertion of authority (id.). Supra, n. 12, at p. 295. Op. cit., vol. 1, at p. 430 (emphasis added). He implies that US treatment of such factors in the tidelands cases may have distorted the normal international legal rules; namely that judicial views “were directed at the reconciliation of Federal and State claims and [so] did not need to be expressed in so nuanced a fashion as the international law rules which could cover a wide variety of actual situations” (id., at p. 431). See, e.g., the US FWS memorandum of 4/18/1962 (FWS agents “as enforcement agents of the [US] government” are “obliged to abide by Department of State interpretations”). 394 US 11, at p. 76, n. 103 (1969). Report of October 1952, at pp. 30/1. This point was also made strongly in the US Brief in that case. As it stated: The [US] has not exercised effective sovereignty in the areas claimed by California as [historic] inland waters. States [of the Union] are not competent to participate in the making of policy in matters of international relations, consequently an exercise of sovereignty by

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The principal problem in this regard is that a federal entity may have a hidden agenda domestically which does not apply internationally; i.e., an intent, in the US context, not to concede Submerged Land Act (‘SLA’) rights to a particular state of the Union by a liberal interpretation of limits of inland waters, particularly where other states of the Union, which have similar coastal geography, may see precedent value in any such successful claim. In the US v. Louisiana case, for example, the Supreme Court concluded that “state [i.e., Louisiana’s] exercises of dominion” should be considered relevant to the existence of historic title, even though the TSC was “designed with an eye to affairs between nations rather than domestic disputes”; but that following the US v. California precedent, it would be “inequitable in adapting the principles of international law to the resolution of a domestic controversy, to permit the National Government to distort those principles, in the name of its power over foreign relations and external affairs, by denying any effect to past events”.37 The problem here may be said to be analogous to that in a colonial situation (see below, Chapter 17, section 2) where a maritime colonial power may “in the pursuit of vindicating a policy giving the freedom of the seas the widest possible geographical extent, have determinedly refrained from championing a subject community’s previously acquired, or possible inchoate, historic rights in order to remain consistent to its global policy” (or it may have refrained from “enforcing” such rights against third States as a quid pro quo in its own interest).38 Despite, though, the abovementioned problems which arise over historic title in a federal context, mere component-state activities may, as seen, in appropriate circumstances be utilised in the US context to evidence effective historic enforcement of jurisdiction under what might be dubbed the ‘parity of treatment’ doctrine.39 2.1.2 Application to Alaska v. US (2005) It is interesting to note in this context that the Alaskan pleadings in Alaska v. US (2005)40 seemed to put much stress in proving an historic claim on federal actions

37 38 39

40

California alone could not create historic waters, at least in the absence of adoption by the policy-making branches of the national government. (Brief of 1964, at p. 15 (emphasis added)). 394 US 11, at p. 77 (emphasis added). Goldie, loc. cit., supra, n. 31, at p. 264. See the Report of Special Master Davis in US v. California, where counsel for California had contended that the effect of assertion or exercise of jurisdiction by the State of California was the “same as if action had been taken by the [US]”. Here, not surprisingly, the Special Master asked the question whether “the acts of California can take the place of, or amount to, effective assertion by the [US]”. And in this respect he pointed out an important proviso: that consitutionally he agreed with US counsel that mere State action would be invalid if “actually contrary to action taken by the Federal Government” (Report, October 1952, at pp. 30/31, cited by Whiteman, op. cit., vol. 4, at p. 243 (emphasis added)). In fact he found that the rationale of the Californian judicial decisions were “directly in conict with the positions the [US] had then taken and now takes in its international relations”. At p. 12 (emphasis in original).

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when the Alaskan Brief said that Alaska’s evidence would “include the [US’] own assertions that these waters are inland waters”; but, for example, on the important aspect of effective enforcement of relevant jurisdictional activities in the waters of the Alexander Archipelago, mere ‘Alaskan state’ activities (such as sheries enforcement) had potential relevance when it came to examining the effectiveness of enforcement of relevant jurisdictional aspects. However, as indicated above, such actions had still be interpreted in the light of any (superior) US federal policy.41 2.2

Is the concept of effectiveness relative to the geographical situation?

A question arises as to whether the geographical remoteness of the historically claimed waters may, pro rata, automatically scale down the requisite degree of effective control (on an analogy with the cases on disputes over title to territory).42 In this context, for example, Edeson suggests that it might be argued that in relation to waters remote from populated areas and from “major shipping lanes”, activities to indicate effective control “need not be so intense”.43 Another commentator, whilst conrming that “effective control” is generally necessary, maintains that effectiveness may vary according to a number of factors, “such as size of the area and its remoteness”.44 There is a precedent for such a ‘relative effect’ viewpoint in an Australian case – Raptis v. South Australia45 – where Stephen J. opined that although the “degree” of control of waters there in question had “not been precisely established”, the “remoteness of the area from foreign States and from international sea routes admit[ted] of a lesser degree of usage and control than might otherwise be required to support a claim by a coastal State”. 2.2.1 Alaska v. US (2005) and geographical relativity In Alaska v. US a similar viewpoint was submitted relative to the waters of the Alexander Archipelago based on analogous rules in international law relating to acquisition of territory. The expert witness for Alaska argued in his Report, for example, that “[d]ue to the remoteness of the area and the limited human uses of the area [Alexander Archipelago waters] over the period in question, the evidence relevant to claims and activities pertaining to the area [was] limited”; so that “less evidence [was] here required” to establish historic waters;46 and Alaska pleaded before the Supreme Court the relativity of geographic factors – such as isolation, and hence lack of navigational activity – in relation to the requirement of effectiveness.47

41

42 43 44

45 46

47

In fact Alaska appeared to have relied in this case mostly on alleged federal actions, most particularly the statements in the 1903 Arbitration (ABT). See e.g., the Eastern Greenland case (PCIJ, Series A/B, No. 53). Supra, n. 12, at p. 296. Pharand, supra, p. 39, n. 3, at p. 7. In a broader geographical sense, Blum seems to view a claim based on an “excessively wide entrance” presumptively less likely to be an historic bay because it “correspondingly weakens any inference of the littoral State exercising effective control over the bay in question”: op. cit., at p. 266 (emphasis added). (1977) I.L.R. 32, 66. Professor Charney’s Report, at p. 15 (citing such cases as Island of Palmas, and Eastern Greenland). Thus, he alleged (id., at p. 16) “numerous assertions” were not necessary. See Exceptions, at p. 36.

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Referring, in the latter instance, to the Special Master’s discounting of alleged assertions of authority over the waters of the Alexander Archipelago, the Alaskan pleadings carried on this theme at the appellate stage, pointing out that “during Russian times, very few vessels plied the remote Alaskan waters”. Thus (allegedly) it was “not surprising that the Russians would have enforced their claim simply by ‘watching their lines’ through a ‘blockade’ established at the southern boundary”; and because the pockets and enclaves comprise a small proportion of the total waters of the Archipelago, it was also (allegedly) “not surprising that there were not numerous enforcement actions within them”.48 2.3 The proviso to the ‘effectiveness’/continuity requirement It may, of course, be the case that no enforcement proves to be necessary because foreign nations are in fact consistently respecting the alleged historic claim. As the UN Juridical Regime says, “[i]t is not impossible that [the] laws and regulations were respected without the State having to resort to particular acts of enforcement”.49 US caselaw has clearly accepted this proviso. This exception to the general international rule of ‘effective enforcement’ has, for example, been cited by the US Supreme Court in the Alabama and Mississippi Boundary case where it was somewhat paradoxically stated that: “the absence in the record of evidence of any occasion for the [US] to have exercised its privilege to exclude foreign navigation in innocent passage from Mississippi Sound supports rather than disproves the claim of historic title to the Sound as inland waters”. This dictum was, however, qualied by the further statement that it was still essential that, to the extent that action on the part of the State and its organs was necessary to maintain authority over the area, “such action was taken”.50 In Alaska v. US (2005), the Special Master agreed51 with the Alaskan pleadings,52 to the effect that the US did not actually have to exclude foreign vessels from the waters of the Alexander Archipelago for them to constitute historic waters; it “merely [had] to assert the right to exclude them”. The alleged relativity of geographic factors, as discussed above, inter-relate and have relevance here: such as the isolation of the waters in question which featured strongly (as seen) in the Alaskan pleadings before the Supreme Court in respect of alleged historical interdiction of passage for foreign vessels in very northerly waters.53

48 49

50

51 52 53

Id., at pp. 36/7. At p. 15, para. 99. See also Pharand (supra, n. 44, at p. 7 (“[n]aturally if the laws and regulations of the coastal State are never challenged, no special action will be necessary on the part of the coastal State”)). 470 US 93, at p. 114/15 (1985) (citing the UN Juridical Regime, at p. 43). See also the ‘Stevenson’ Memorandum (1972) relating to sheries enforcement in the Alexander Archipelago which stated: “[m]oreover, it would not necessarily have to be shown that enforcement activities had been carried out [to evidence sovereignty], since the exclusion might have been respected without the need for actual enforcement” (Alaska Ex. 8 28e in Alaska v. US (2005), at p. 35e (emphasis added)). Report, at p. 126. Count 1, Opposition, 34–35. See Exceptions, at pp. 36, referring to the Special Master’s discounting of alleged assertions

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It may be noted, also, that in the preceding Cook Inlet case concerning even more northerly Alaskan waters,54 the Supreme Court not only found that there had been no instance of any enforcement of the main sheries Act, the Alien Fishing Act (1906), in the Inlet but also that the District Court had “sought to explain this fact” on the ground that “foreign vessels entered the inlet infrequently”, Alaska here relying on statements of certain former wildlife ofcials that “they would have taken afrmative action against foreign vessels if they had seen any in the inlet”.55 The Supreme Court riposte to this was that: “[i]n the absence of any actual enforcement or ofcial announcements of intention to enforce [the Act] in lower Cook Inlet, the private intentions of witnesses are largely irrelevant”.56 It follows that lack of actual enforcement can speak in two ways if in fact little or no foreign use has ever been in evidence in particular waters. This might, in principle, for example, have been the true situation in respect of alleged Alaskan shery enforcement throughout the Alexander Archipelago, where it was admitted in Alaskan evidence at the ‘Juneau Hearings’ that there were (in any event) “no signicant shing activities there”.57

54 55 56

57

of authority over the waters of the Archipelago, (see above n. 48 and accompanying text (id.)). Cf. the US federal pleading in Alaska v. US (2005) (Report, at p. 128) that it “considered the lack of exclusion of any foreign vessels signicant”, contrasting the instance of the Alabama & Mississippi Boundary case which (id.) “involved an out-of-the-way body of water avoided by foreign ships” (see US Count 1 Reply, at p. 16). 422 US 184, at p. 194 (1975). Id., at p. 194 n. 15 (emphasis added). Id., (emphasis added). It is for this additional reason that the evidence of shery enforcement ofcers at the Juneau Hearings have to be treated with some circumspection (because of the equivocality as to evidential proof of effectiveness of any Alaskan enforcement claim). There was, for example, a statement by one witness (see summary in the 1972 ‘McKernan Memorandum’, Alaska Ex. 8, at p. 32e in the case) that the only such incidents of which he was aware had resulted in arrest and, in some cases, in the seizure of vessels and gear; but that of “[an]other [witness] indicated that, in the only incident of foreign shing he recalled, a Canadian boat arrested for shing in waters of the Archipelago near the international boundary between the [US] and Canada was released pursuant to a general policy of leniency in such cases”. In fact, such maritime ‘border leniency’ shown to Canadian vessels only adds to evidence of lack of effective shery enforcement, as the general evidence here does not clearly prove that foreign vessels generally refrained from shing within the Archipelago (outside 3 mile limits) because of fear of arrest. See also, e.g., the shery ofcer evidence given by J. Steele Culbertson on 31 May, 1972 (Juneau Hearings, supra, p. 41, n. 13, at p. 177). Id., at p. 12 (Mr Nelson). The ‘Stevenson Memorandum’ of 1972 (see Alaska Ex. 8, 28e, supra, n. 56, at pp. 36e/36f ) did say that the historical situation in the Alexander Archipelago “seems to differ in some respects” from other parts of Alaska, including the fact that in contrast to afdavits in the Cook Inlet litigation (indicating there would be no shery enforcement outside 3-mile limits there) “[b]y contrast, the afdavits [in the case of the Alexander Archipelago] indicate that enforcement authorities considered that foreign shing in any of the waters of the [Archipelago] would have been per se a violation of US law” (emphasis added). However the Memorandum attached a bracketted comment here (stressing the difference between theory and practice); to the effect that this was relevant “only insofar as it bears on

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2.4 The need for the whole area of claim being actually subject to jurisdictional control to evidence effectiveness of claim It follows logically from the requirement of effective exercise of jurisdiction that the area of application of such jurisdiction should clearly and consistently apply in all the claimed areas as historic waters. This mirrors the requirement seen above as to the formal claim itself having to specify a clear geographical area.58 There are indications that past US caselaw in tidelands cases has taken a similar or, at least, analogous, viewpoint. For example, in respect of Nantucket Sound, the Supreme Court stated that there was “no satisfactory evidence” that the (alleged) relevant activities “occurred over the entirety of Nantucket Sound, and in particular over the portion which the [US] contends is high seas”.59 This also was the situation in respect of alleged jurisdictional enforcement in the Alexander Archipelago generally. Thus, in Alaska v. US, the Special Master concluded that the Alaskan allegations relating to Russian interdiction of the Loriot, Dryad and Chichagoff vessels failed to “show that Russia denied innocent passage throughout the waters of the Archipelago”.60 In fact, areal ambiguities of jurisdictional enforcement were evident in the Alexander Archipelago in both earlier and later times. It has already been noted also that the ‘1903 lines’ (ABT) differed from the ‘Pearcy chart’ lines (which appear to have different line variants (see Map 6 above)).61 Even past Alaskan sheries memoranda62 admitted that the ‘Pearcy’ lines were “subject to various interpretations” leading

58 59 60

61 62

the action enforcement authorities might have taken or been expected to take with respect to warning foreign vessels away from areas regarded as internal waters and enforcing US laws within these waters had foreign vessels entered”. The emphasised sections of this statement, then, related purely to hypothetical instances and, as such fell foul of the later abovementioned comment of the Supreme Court in the Cook Inlet case (422 US 184 at p. 193, n. 15 (the “private intention of witnesses is largely irrelevant”)). See also the Report of the Special Master in Alaska v. US (2005), at pp. 103–104. Furthermore, it may be commented that past alleged evidence of enforcement there has proved to be locationally unreliable. For example, in 1962 there were incidents of alleged halibut shing violations by Canadian shermen outside the 3-miles limits of the Archipelago, but these vessels were found on closer analysis to be within 3-mile arcs of the islands (see US Archive Refs. 10821, 10823). See above Chapter 10, section 2.2. In US v. Maine, 475 US 89, at p. 101 (1986) (emphasis added). See his Report, Pt II. C. 1, c–e and at p. 126 (emphasis added). Ofcial US documents seem to bear out this conclusion: see, e.g., the Department of State Memorandum to Ambassador Kernan (August 30th, 1972) (Alaska Ex. 8, at p. 29e) referring to the “limited” evidence on the Alaskan historic claim to the waters of the Alexander Archipelago. Cf. similar problems in Australian courts, as in Raptis v. S Australia (1977) ILR 32, 74, where it was said to be unclear that relevant Australian shery legislation applied there wholly within the territorial sea. See Chapter 10, section 2.2.3.1. Memorandum from the Fisheries Management Supervisor, Juneau, to the Regional Director, Juneau, 7 April 1964 (Alaska Ex. 6 at pp. 19e/20e (emphasis added)). Even the legal status of the one denite (maritime) ‘1903’ line is dubious. Cf. the letter from Mr Walter B. Blue to Senator Stevens on 9 May 1972 (in comment on the 1972 lines) (annexed to the ‘Stanley Memorandum’ (reprinted May 1970), supra, Chapter 6, n. 33, at p. 186, alleging (at

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to “differences which can only be resolved by judicial review”. It appears in fact that it was the ‘Pearcy lines’ – not the allegedly ‘claimed’ closing lines of 1903 – which may have been used by Alaskan shery enforcement personnel in more recent years.63

3. Requirement of Commensurate Action This is, in effect, a complementary requirement to effectiveness of exercise of jurisdiction, as it is based on the hypothesis that the actual enforcement of jurisdiction must be of the relevant type or types to match the requisite type of historic waters being claimed.

63

p. 187) that in conrmation of the treaties of 1824 and 1825, the Tribunal in 1903 allegedly drew the boundary line of 54º 40' “from the southern tip of Cape Muzon [to] . . . some fty nautical miles across the opening of Clarence Strait to a point just off the Alaskan mainland”; from which he deduced (id.) that “it [was] obvious that this straight line across the Clarence Strait proves that it was exactly the intent of the [1903] Tribunal to establish the boundary on the baseline method wherever practical, and that this has been historically accepted by the nations concerned from 1903 until the present”; and (id.) allegedly this “one salient fact establishe[d] the historical utilisation of the baseline method”. The general equivocality of these charts is well summarised in the so-called ‘McKernan Memorandum’ of 1972 (see Alaska Ex. 8 at pp. 33e/33f in Alaska v. US (2005)). A footnote id., at pp. 33/34e, noted regarding the US Baseline Committee charts that “the seaward limits of the territorial sea and continguous [sic] zone are not much different from what they would be if [straight] closing lines” were drawn across all these features. There it was further said (emphasis added): From about 1964 until the date of issuance of the [Baseline] Committee charts, the Coast Guard used charts which were apparently derived from some hypothetical charts developed . . . [by Pearcy]. These charts which were widely known in Alaska, show closing lines drawn from headland to headland across all bays, straits, etc and the territorial sea limit three miles to seaward of those lines. While it is not clear exactly how these charts came into general use, they do appear to approximate the limits of Alaskan waters as previously understood by Alaskan sheries enforcement authorities according to their afdavits. In fact it appears that three of the alleged Pearcy charts enclosed as copies at the 1972 Juneau Hearings were not even wholly consistent with Pearcy chart no. 8252 which is still in existence. This indicated that the ‘Pearcy lines’ were inaccurately transferred onto the ‘Juneau Hearing charts’. It appears also, as already seen (Map 6), that the ‘Exhibit’ 1 map attached to the Alaska Brief in Alaska v. US (2005) depicted lines which were not consistent with the Pearcy lines, being limited to 10 nautical mile closing lines. Whatever might be the true explanation of all this lack of geographical clarity and inconsistency – particularly in the middle section of the Archipelago near Kruzov Island – it was clear that the alleged external closing lines of the Archipelago had varied greatly over the years, most particularly from those originally referred to in the 1903 Arbitration (ABT ) proceedings and on which Alaska placed reliance in its Exhibit 1: where it described them as a “[g]raphic depiction of closing lines drawn by the [US] at the 1903 Boundary Tribunal to make the seaward limits of the Archipelago” (citing 5 Proceedings, S. Doc. No. 162, 58th Cong. 2d Sess. (1903–4), Pt 1, Argument of the US, pp. 15, 16; and id., vol. IV, Pt. I, Counter-Case of the US in the ABT, at pp. 31–32).

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The UN Juridical Regime, for example, after pointing out that historic title may be claimed not only in respect of sovereign rights – and no lesser type of authority64 – adds the important rider that it “is logical that the scope of the authority required to form the basis of a claim to ‘historic waters’ will depend on the scope of the claim itself”; i.e., that the claim must be “commensurate with the factual activity” of the claimant State in the area in question. The UN study cites Gidel in this context, who said (albeit somewhat vaguely):65 It is hard to specify what kind of acts of appropriation constitute sufcient evidence: the exclusion from [such] areas of foreign vessels or their subjection to rules imposed by the coastal State which exceed the normal scope of regulations made in the interests of navigation would obviously be acts affording convincing evidence of the State’s intent.

As the UN study also says (in the light of there being other types of historic waters apart from internal waters) “[i]n principle, the scope of the historic title emerging from the continued exercise of sovereignty should not be wider in scope than the scope of the sovereignty actually exercised”.66 In other words, the evidence of type of jurisdictional control may, in some cases, at most evidence some lesser status than that of internal waters – for example, an historic territorial sea, or indeed (because of the low level of exercise of jurisdiction) evidence no historic claim at all. Thus, for example, an alleged claim to historic internal waters will not be sustained by conduct that would be adequately explained by a claim only to a territorial sea. As was clearly reiterated by the US Supreme Court in the Cook Inlet case67 the “exercise of authority” in question must be “sufcient in scope” to establish historic title over the area. One US commentator has added that this “principle, it would seem, holds the key to all historic waters adjudications, yet has probably not been sufciently emphasised by subsequent [to the Louisiana case] litigators”.68 Past commentators have not made very incisive analysis of this important requirement. For example, Bouchez simply conrmed that the “intensity of the exercise of sovereignty . . . will vary according to the character of the claim”; but also added vaguely that the question whether there is such an effective exercise “depends upon the prevailing circumstances”.69 He then gave a dubiously-broad list70 (in the light of the

64

65

66 67

68 69 70

At p. 13, para. 85. More controversially (at rst glance), it says (at para. 88, p. 14) that the requirement does not “mean . . . that the State must have exercised all the rights and duties which are included in the concept of sovereignty”. But here the UN study is discussing historic maritime claims generally (including a historic territorial sea), i.e., not just historic internal waters (hence mention of enforced shery rights alone being sufcient: see, at p. 14, para. 86). Op. cit., at p. 863; quoted at para. 89, p. 14 of the Study. Cf. the Alaskan Sur-Reply Brief on Exceptions to Report (at p. 15). Id., at pp. 39 and 66. Referring to the earlier case of US v. Louisiana: respectively 422 US 184, at p. 197 (1975) and 394 US 11, at pp. 24–26 (1969), the Court in the latter citing the UN Juridical Regime. M.W. Reed, op. cit., at p. 124. Op. cit., at p. 249 (emphasis added). Id. He cites, for example, collection of taxes, census reports, hydrography, military and police

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then – caselaw in the early 1960s) of what types of acts may sufce for this purpose. In similar fashion, in the case of alleged past historic claims, claimant States have attempted to put on the scales of assessment as many apparent acts of jurisdiction as they can record, whether or not they all have relevance to the actual historic claim made.71 3.1 Afrmation of the ‘commensurate’ principle in the ICJ by Judge Oda in El Salvador/Honduras Arbitral decisions in the earlier part of the 20th century were understandably somewhat vague (and, perhaps, in retrospect, misguided) on what acts the effectiveness requirement should encompass. For example, Blum cites the Gulf of Fonseca case in 1917 as afrming the effectiveness principle (relative to “manifestations of State authority”) when the three successor States were found by the Central American Court to have “performed acts and enacted laws having to do with the national security, the observance of health and with scal regulations”.72 Such a viewpoint glosses over the substantive nature of the ‘commensurate’ acts necessary to t the claim. For example, mere exercise of ‘contiguous zone’ jurisdiction does not relate to an internal waters claim, as this, by denition, may be exercisable outside the territorial sea zone. This point was well made by Judge Oda in his Dissenting Opinion in the El Salvador/Honduras case. As he there stated:73 [T]he three riparian States seem to have exercised certain police powers for inspection beyond their respective 1-league territorial seas. [El Salvador] provided in its Civil Code of 1860, in addition to the 1-league territorial sea, that police powers should be exercised outside the territorial sea to a distance of 4 leagues from the coast . . . Honduras likewise claimed in its 1906 Civil Code . . . in addition to the 1-league territorial sea, a 4-league belt for the exercise of police power. Nicaragua is reported to have taken the same position. Such a competence on the part of the coastal State has been generally accepted since World War I, particularly through the new regime of the contiguous zone which the [US] initiated in the bilateral treaties which it concluded with a number of States.

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Commensurate jurisdiction and Alaska v. US (2005)

In Alaska v. US (2005) even if, as seen, Russia, as predecessor in title to the US, did exercise customs-type jurisdiction in the waters of the Alexander Archipelago during its possession of Alaska in the 19th century, this would not indicate that the waters were being claimed as internal ones (such jurisdiction being also exercisable, even then, beyond a territorial waters limit); so that the acts were not commensurate to such a claim, the intended aim of the Russian ukase, and subsequent treaties, being of limited

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patrol, pollution and security control, as well as more ‘mainstream’ jurisdictional activities such as action relating to sheries and navigation (the latter being so relevant to internal waters status: see below section 4.2. See below section 4. Op. cit., at p. 257, quoting from 11 AJIL (1917), at pp. 700/701. Supra, p. 2, at p. 757, para. 45 (emphasis added).

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jurisdictional effect.74 The Special Master agreed with the US federal side’s interpretation of the US/Russian treaty, namely that it effectively only embodied “a limited 10-year waiver of Russia’s right to regulate commercial activity within its territorial waters”; particularly because Article 2 of same merely authorised navigation “for the purposes of shing and trading with the natives” and did not “address navigation for the purpose of innocent passage”.75 Thus even if there had been any Russian enforcement of navigational restrictions outside one league of landfall within the waters of the Archipelago, this could be explained either in terms of Russian customs enforcement or of prevention of noninnocent passage more generally.76 Indeed even US counsel in the 1903 ABT admitted 74

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For example, historically speaking, in the Alaskan waters situation, it was never clearly evident what has been called an appropriate “external manifestation of the [possible] verbal claim” over the archipelagic waters (see Moore, op. cit., vol. I, at pp. 724/5) which unequivocally indicated inland waters jurisdiction being exercised. The US, if not Russia, could have claimed rights of jurisdiction beyond the three-mile limit in respect of the types of concerns mentioned above, either on the basis of anti-smuggling (“illicit commerce”) (Moore, op. cit., vol. 1, at pp. 724/5), or, indeed, on the basis of self-defence. Jessup (op. cit., at p. 26) in discussing past Russian practice observes that many of these claims “may be considered merely as assertions of rights outside territorial waters”; and (id., at p. 27 n. 95), whilst noting that the US “as Russia’s successor in Alaska, resorted to similar measures in spite of the traditional American support of the three-mile limit”, in effect countered this by saying that it should be noted that in the Behring Sea Fur Seal Arbitration between the US and Britain, the Tribunal found that after 1825, Russia “never asserted in fact or exercised any exclusive jurisdiction in Bering’s Sea or any exclusive rights in seal sheries therein beyond the ordinary limit of territorial waters” (citing from 1 Mulloy’s Treaties, at p. 753). Paradoxically, though, there is isolated evidence in very old caselaw on alleged historic rights that this type of jurisdiction has been used as a ‘makeweight’ to prove historic title outside 3-mile limits; as in the old Indian case of Pillai v. Muthupayal in 1903 (1903 27 Indian LR, Madras Series, 551, at p. 553), where the US case of Manchester v. Massasschusetts was judicially cited in support (discussed by Jessup, op. cit., at p. 15). On an analogy with the British successional claim (Ceylon pearl sheries at 20 miles from shore), see the communication by Blaine on January 22, 1890 (cited in Moore, op. cit., vol. I, at p. 899) which suggests that Britain would have defended any attempt to interfere with its jurisdiction in this respect there; and see the rider to the Law Ofcers’ Opinion on the (historic) status of Shark Bay in Western Australia (46 miles wide) (cited by O’Connell, ‘Problems of Australian Coastal Jurisdiction’ in B.Y.I.L. (1958), at p. 242 (“[f]urther, against its own subjects a State can, by its own particular laws, exercise command any distance from its shores” (emphasis added)). Compare, on the broader front of territorial acquisition in international law, Judge Basdevant’s opinion in the Minquiers and Ecrehos case ((1953) ICJ Rep. 47, at p. 82 (cited by Blum, op. cit., at p. 121) (emphasis added)), where he distinguished the Grisbadarna case (Hague Court Reports, 1st Series, 1916, at p. 122) (which might seem to be an adverse precedent) on the basis that it “must not be forgotten that international practice recognises or tolerates customs control carried out by a State outside its territorial waters”; but see O’Connell, op. cit., at p. 428, who rightly says that there was the “difference here between delimitation [of maritime zones]and initial acquisition”. Report, at p. 27 (emphasis added). See Chevigny, op. cit., at p. 138, who says that the aim was to stop “the buying from the Americans and all the others”; and this was seemingly also the Russian Czar’s understanding.

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that Russia used the ukase to “protect her coast against scal invasion”; and that “nothing is better settled . . . in the law of nations than the idea that any State may extend its jurisdiction beyond the 3-mile limit for scal purposes”.77 77

Emphasis added. See Proceedings in the ABT case, vol. II, App. 96. This was said (in 1903) to be the ofcial Russian position: id., at p. 12. In fact the essential purpose of the ukase – as emphasised in its preamble (see id., vol. II, at pp. 25 and p. 96) – was that Russian trade in the region was suffering “because of secret and illicit trafc” (trade in sea otter furs and arms/ ammunition). Paragraph 1 of the ukase reserved the “pursuits of commerce, whaling and shery” (emphasis added) on all “islands posts and gulfs”) to Russian nationals down to 51° latitude on the north-west coast of America (i.e., also ostensibly through the Archipelago). It was ostensibly in this context alone (see the word “therefore” in paragraph 2) that “approach” within 100 miles of the coast was forbidden to “foreign vessels” (see the letter of Middleton to Adams (August 8, 1822) stating the wording of a Russian commitment that the orders of Russian warships to patrol the zone were to be limited “to the prevention of the contraband trade within the limits recognised by the other powers” (id., vol. II, at p. 43) (emphasis added)). A letter (of Baron Nicolay to Londonderry at the time (of 12 November 1821 (see Proceedings, vol. II, at pp. 95, 96)) expressly admitted that the regulation did “not forbid foreign vessels to navigate in the seas which wash the [north west Russian possessions]”; and that the Russian Government did not nd itself in those sea areas “absolutely authorised” to exercise rights of sovereignty, especially forbidding “the approach of foreigner”. This is repeated in a letter of Nesselrode to Count Lieven, of 7 October, 1821 (id., at p. 99). See also the Memorandum of Wellington (11 September, 1822: id., vol, II, at p. 108) (the Emperor did not propose to “carry into execution the ukase in its extended sense”; and Russian ships had been directed “to cruize [sic] at the shortest possible distance from the shore”). Cf. Art. V of the GB/Russia treaty (1825) (id., vol. II, at p. 193). See also British statements at the 1903 Arbitration (Counter Case, at p. 47) to the effect that Russian ofcers were in “conn[ing] their jurisdiction to within gunshot from the shore”, to limit their surveillance to repressing fraudulent commerce, disturbance of Russian hunting and shing rights; so that it was “apparent from all this that the Russian Government, had in June, 1823, waived any pretension to interfere with vessels engaged in innocent navigation along their coast”. Thus the thrust of the relevant wording of the ukase – like the two 1820s treaties – was in respect of limiting trading and shing. Moore’s comments support this interpretation. He says (op. cit., vol. I, at p. 891) that after Mr Adams’ initial (US-based) protest and enquiry as to the “grounds” of the Russian ukase, he was assured by the Russian Minister at Washington, Mr Poletica, that the prohibition of approach was a “measure to prevent illicit trade and the supplying of the natives with arms and ammunition”; and that in a note of 30 March, 1822, Mr Adams observed that the President was persuaded that “no interdiction manifestly incompatible with US citizens rights of “lawful commerce”(emphasis added) would be interfered with ((id.). See also the letter of Bagot to Londonderry (21 November, 1821) which stated that the object of the measure was to prevent the “commerce interlope” (sic!) of US citizens resorting to the “Russian coasts”, so interfering with trade and bringing in “prohibited articles” such as gunpowder (Proceedings, vol. II, at p. 101). Even at the very time of issue of the ukase, a condential memorandum (of November 11, 1822) from Russia stated that any “measures of precaution and supervision” would be “entirely in conformity” with “international usage” (see Proceedings, vol. II, at p. 116), implying, perhaps some contiguous zone-type jurisdiction. The upshot of the totality of such then-contemporary statements seems to be that the original aim of the ukase was not to interfere with general navigational rights anyway; and thus not to create any exceptional rights. Cf. Nesselrode’s interpretation at the time (cited in Okun, op. cit., at p. 89 (“at the expiration . . . we [Russia] shall have the legal power to forbid them [i.e., US nationals] abso-

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3.3 Inter-relationship of the acquiescence and ‘commensurate jurisdiction’ principle The requirement of foreign acquiescence (as discussed below in Chapter 14) interrelates with commensurate jurisdiction being exercised.78

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lutely to sh or trade in that whole area” (emphasis added). See also Moore, op. cit., at p. 463 (“the subject of commercial intercourse was adjusted, temporarily, by Articles IV and V”) (emphasis added)). The Russian volte-face on the effect of the ukase relative to the Alexander Archipelago was, in particular, reinforced by the fact that the US/Russia treaty of 1824 was mirrored by the wording of the GB/Russia treaty of 1825. Art IV of the US/Russia treaty (1824) emphasised shing and trading with the natives: see Proceedings, vol. I, Pt 1, at pp 58/9, 60 (“no perpetual right to trade in the lisière”); and cf. the wording of the earlier 1818 US/GB treaty relating to “harbours, bays and creeks . . .”. As was noted by the US arbitrators in the 1903 ABT case, the aim of the ukase, in its stipulation preventing approach within the 100 miles of the Russian-American coast, had to be viewed against a backgound of protecting the Russian American Company “by prohibiting all foreign vessels . . . to land on the coasts and islands which were declared to belong to Russian as far south as latitude 51° (id., at p. 50 (emphasis added)). Similarly, Okun (op. cit., at p. 156) suggests that the impetus for the edict came, in 1817, from the Russian American Company, which submitted a “draft of regulations to be imposed upon foreign vessels touching at the Russian colonies in America” (emphasis added), so possibly indicating no intended general interference with off-shore navigation. Indeed a Russian note in 1822 to Britain expressly stated that it was not “the intention [of the ukase] to prohibit foreign vessels from navigating the seas along Russian possessions, but only to ensure to the Russian American Company the enjoyment of its charter rights (Proceedings, vol. II, App. 96 (emphasis added)). It seems only too clear that after the expiry of the time proviso in the two 1820s treaties, both US and British (Canadian) nations had the right to unimpeded navigation etc. even in Russian internal waters on the mainland coast; and so by implication – and a fortiori – such rights more seaward in the actual waters of the Archipelago. Thus any spasmodic enforcement by Russia was in relation only to foreign (seemingly USowned) vessels which actually attempted to make landfall for the purpose of illicit trading. This was the basic rationale of the ukase in the rst place (see e.g., the Loriot incident supra, Chapter 12, section 1.2.1.1). In other words, the ukase and the treaties were never capable of founding even an incipient claim to internal waters in the Archipelago; and certainly there is little documented evidence that Russia ever “successfully” asserted such a claim (as alleged in the Alaskan Motion in Alaska v. US (2005)). As seen, the 100-mile ukase-based claim – which was the principal cause of the 1820s treaty negotiations – was effectively killed by the two treaties, as was conrmed in the 1903 Arbitration, substituting instead a “treaty provision insuring freedom of navigation in the North Pacic” to the citizens of both the US and Russia, this being seen as a “sufcient formal renunciation of the Russian pretension” (see Proceedings, vol. II, at p. 34). Accordingly none of the navigational restrictions which were contained in the ukase in the Russian period can be said to be carried over into the post-1835 period as a restoration of any (arguable) status ante quo. The US had two aims in the pre-treaty negotiations: 10 years unrestricted trade with the natives and Russian abandonment of the 100-mile maritime claim: id., at p. 23. In fact it appears in more recent times that Alaska had complained about the waters of the Archipelago being treated as high seas for trans-territorial sea limit purposes, including Coast Guard inspection regulations (see the Coast Guard letter to Congressman Bartlett of May 28, 1951 (US Archive Ref. 10453)). As the Special Master in US v. California noted (Report, 1952, at p. 35), if alleged instances of Californian jurisdiction “did not constitute an assertion of exclusive jurisdiction over

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Chapter 13 Intertemporal problems on the ‘commensurate jurisdiction’ issue

A complication in respect of the commensurate jurisdiction requirement may occur because of intertemporal legal considerations. For, as various jurisdictional off-shore zones have progressively expanded or developed with the codication of international law, correspondingly jurisdictional competences have become more rened. Such an intertemporal problem seems, for example, to have been alluded to by Libya in its pleadings in the Libya/Tunisia case. As was there argued, the alleged Tunisian historic rights “antedated” the establishment of the different “nominate zones”; and so they were of no consequence as such zones were unknown in the 20th century.79 Judge Oda pertinently alluded more generally on such intertemporal advances in the law of the sea in the El Salvador/Honduras case.80 As he said: In the light of the claims made in the post-war period . . . to a distance of 12 miles for the territorial sea, and given the universally agreed 12-mile limit to the territorial sea under the new regime of the law of the sea, the Gulf of Fonseca must now be deemed to be totally covered by the territorial seas of the three riparian States. It cannot, moreover, be disputed that the area which had previously claimed by each of these States for its police powers has been completely absorbed in the extended 12-mile territorial sea in the Gulf.

In a shery context, this matter of zonal expansion with the development of international law further obfuscated evidence of any alleged exceptional jurisdiction being exercised outside the three-mile limit in Alaska v. US (2005) concerning the Alexander Archipelago. As, for example, a 1972 US Memorandum stated:81 The waters of the [Archipelago] do not, according to the [Task Force Committee Charts], include any areas which are not either territorial sea or contiguous zone. There are, however, substantial areas of contiguous zone extending well into some of the larger straits. Until 1966, when the Contiguous Zone Fisheries Act was passed, foreign shing would not have been prohibited in these areas had the Committee charts been used as a basis for enforcement.

Thus, when US shery jurisdiction went beyond three miles to 12, after the passing of the 1966 Act, foreign shing was thenceforth prohibited in these more extensive areas on the basis of the Baseline Committee charts; and as all these areas would then have been either territorial sea or part of a further nine-mile shery zone, any evidence of

79 80 81

[the] waters such as might be the occasion for objection by foreign governments”, then, in these circumstances, “absence of objection from foreign countries could not be regarded as acquiescence” (emphasis added). See also M.W. Reed, op. cit., at p. 337 (“[t[he acts must have notereity which is normal for acts of the State”). Likewise, the US Supreme Court in the Cook Inlet case found that the “routine enforcement of domestic game and sh regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion” to which they needed to react (422 US 184 at p. 200 (emphasis added)). Reply of Libya, Pleadings, vol. 4, at p. 114, para. 31. Supra, p. 2, at p. 758, para. 48 (emphasis added). Memorandum from US State Department (J.R. Stevenson): Alaska Ex. 8, 28e at p. 32e in Alaska v. US (2005) (emphasis added); see also the 1972 ‘McKernan Memorandum’: Alaska Ex. 8, id., at p. 32e.

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US foreign shery interdiction after 1966 would not have been conclusive evidence of relevant enforcement for historic inland waters purposes. Similarly, in the El Salvador/Honduras case, the ICJ expressly adverted to contiguous additional jurisdiction beyond the three mile limit for “scal purposes and national security”82 to a distance of nine nautical miles. This tied in with the exceptional nding by the Central American Court in 191783 that “without protest or contradiction by any nation whatsoever, the central American States had “for police purposes” performed acts and enacted laws “having to do with national security, the observance of health and with scal regulations”. It may be noted, though, that this geographical situation was an exceptional example – an historic pluristate bay – where idiosyncratic matters relating to the littoral States may have been specically catered for as a part of a more specialised regime.84 It follows that some jurisdictional acts which in past centuries would be viewed as sufcing to evidence title to historic waters may not be now viewed in the contemporary law of the sea as valid expressions of such claim, particularly to internal waters. However, this feature may not be seen as necessarily retrospectively invalidating a well-established and longstanding claim to such title, simply for intertemporal legal reasons.

4. Relevant Acts of Jurisdiction for an Historic Waters Claim 4.1 Interference with navigation and shing the most important exercises of jurisdiction for historic internal waters status Blum has opined that, for historic title, “[n]ormally the assertion of State sovereignty over maritime areas will express itelf by the exclusion from the water areas in question of all foreign vessels”.85 However, citing Gidel,86 he added rather vaguely that “[o]ther manifestations of State sovereignty, will . . . be taken into account”. In a US context, Special Master Maris in US v. Florida mentioned what are undoubtedly the two most relevant types of jurisdictional exercises which may evidence historic internal waters status, namely control of navigation and shing. As he there said:87 82

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85 86

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Supra, p. 2, at p. 590, para. 389 (emphasis added). See also id., at p. 595, para. 396 (the Court “recognised the further 9 nautical miles as a zone of rights of inspection and the exercise of police power for scal purposes and national security”). Cited by Jessup, op. cit., at p. 402. The ICJ seems here to have overturned intertemporal logic by interpreting past jurisdiction attributes in the law of the sea in the light of current provisions on law of the sea in analogous situations. In fact archive evidence shows that the US and Canada did, in the past, contemplate joint action (by draft agreement) in the 1940s to apply the doctrine of shared historic waters to the coast of Alaska and British Colombia, including certain bays, straits, and inlets, with these waters continuing to be “open” to the vessels of “the two countries” and with rights their nationals then enjoyed – such as sheries – continuing: see US archive Ref. 09838. Op. cit., at p. 261 (emphasis added). Id. If he is referring, as he appears to, to so-called ‘vital interests’, these can only be used in a ‘makeweight’ capacity: see below Chapter 15. Report, 1974, at p. 43 (emphasis added). At UNCLOS III (where there was a consultative

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Chapter 13 The most common exercise of sovereignty in inland waters is the special control, and often prohibition, of navigation by the foreign vessels and of shing by foreign nationals.

However, in the Alabama and Mississippi Boundary case (1985), the US federal contention in its Brief was more jurisdictionally restrictive: to the effect that only prevention of innocent passage of foreign vessels would be sufcent to evidence historic title. Strangely, this position was there said by the Supreme Court to be “a rigid view” and “unrealistic”, being supported neither by the “Court’s precedents nor by writers on international law”.88 However, this was because, on the facts, there was found to be no need to enforce such jurisdiction: the record did not indicate that there was “any occasion” to exclude foreign vessels from Mississippi Sound (as they (seemingly) did no go there). As will be seen below, it will normally be necessary for this type of jurisdictional control to be in evidence; if only because of the equivocality which usually relates to the other main type of potential coastal State ‘interference’, namely control of shing (which may be exercisable outside internal waters and not just within them). It follows that a State claiming historic internal waters status for a coastal zone must generally prove a type of jurisdictional control which can only inherently relate to internal waters; and past shing control may be equivocal on this. As McDougal and Burke aptly put the matter:89 “[c]hanging the status of waters from territorial sea to internal waters does not diminish or increase authority with respect to shing, but it does add to coastal State competence with respect to navigation, since, in customary law, there has been no right of innocent passage through internal waters”. 4.1.1 Alaska v. US (2005) and the question of relevant exercise of jurisdiction In Alaska v. US (2005), the US federal side went so far as to argue that one of the reasons why Alaska’s reliance on past consistent enforcement of shing regulations against foreign nationals in the waters of the Archipelago was inapposite was because a nation may “establish historic inland waters only by asserting the power to exclude for-

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group on historic bays and historic waters), one submission (by Colombia) still put emphasis on these two types of jurisdiction, referring to “acts of sovereignty and jurisdiction in the form of repeated and continuous ofcial regulations on the passage of ships, shing and any other activities of the nationals or ships of other States”: OR 196 (1975) (cited by Goldie, ‘Historic Bays in International Law – An Impressionistic Overview’, (1984) 11 Syracuse Jnl of Intl. Law & Comm., 211, 265). 470 US 93, at p. 113 (1985). As such the Supreme Court’s handling of the ‘exercise of jurisdiction’ aspect is cursory and unconvincing. It sits uneasily with the here more persuasive federal argument in Exceptions of the US and Supporting Brief ((1984) at p. 33) that no foreign nation could reasonably have construed the particular activities as asserting inland water rights there. Op. cit., at p. 317 (emphasis added). In the Libyan pleadings in Tunisia/Libya, for example, (Reply of Libya, Pleadings, vol. 4, at p. 115, para. 33), it was alleged that Tunisia had to show exclusive shing in the Gulf of Gabes; and it was claimed that the only evidence of “limited Tunisian claim to surveillance and control over the xed and sedentary sheries (the sponge sheries)” was not adequate for a claim to internal waters, citing the UN Juridical Regime of 1962 on the necessity for “commensurate” jurisdiction to be established.

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eign vessels and navigation”; so that regulating shing “was not enough”.90 Although the Special Master in the case made reference to the effect of control of sheries in waters which would constitute high seas, the thrust of his Report (see below) was that the control necessary to prove title to historic internal waters must relate to control of navigation rather than of shing. It is implicit, therefore, in his decision, as will be seen below,91 that control of shing by foreigners is merely further evidence of exercise of sovereignty over claimed internal waters, but not in itself sufcient to found historic title if, at the same time, innocent passage has been allowed to foreign vessels generally in such waters. 4.2

Control of navigation

The US Supreme Court in the Alabama and Mississippi Boundary case referred to the fact that although it is “difcult to specify categorically what kinds of acts of appropriation constitute sufcient evidence of historic claim, “exclusion from the areas of foreign vessels or their subjection to rules imposed by the coastal State which exceed the normal scope of regulation made in the interests of navigation would obviously be acts affording convincing evidence of the State’s intent” to an internal waters claim.92 In Alaska v. US (2005) the Supreme Court referred to this case and stated that “to claim a body of water as historic inland water, it is . . . important to establish that the right to exclude innocent passage has somehow been asserted, even if never actually exercised”.93 It has been commented in US caselaw regarding the Alabama and Mississippi Boundary case that although the federal Government there had argued that to establish historic inland waters there must be evidence that the claimant nation has “prevented innocent passage of foreign vessels”, the Supreme Court “seemed impatient with the contention”.94 As seen above, the Supreme Court there concluded with what is, at rst glance, an over-generalised statement;95 namely that “this [abovementioned] rigid view of the requirements for [historic] inland water status is unrealistic and is supported neither by the Court’s precedents nor by writers on international law”. It is noteworthy, however, that the Supreme Court did not here specify what precise “precedents” it was referring to. As seen above,96 it appears that the Court was in essence only referring to the ‘proviso’ to the effectiveness doctrine in this regard.

90 91 92

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94 95 96

Report, at pp. 65/66 (emphasis added). See section 4.2.1. Report, 1974, at p. 19 (emphasis added). See, for example, extrajudicially, the statement of J.B. Tate at the US Senate Hearings, 3 March, 1952 (83d Cong. 1st sess. on SJ Res. 13, pp. 1051/2) (“It is an essential feature of inland waters that they are assimilated . . . to land territory of the coastal State, and foreign vessels may not claim a right of innocent passage”). 545 US 75, at p. 82. See generally the Special Master’s discussion in Alaska v. US (2005), Report, at p. 109. M.W. Reed, op. cit., at p. 92 (emphasis added). N. 88, at p. 113. See above n. 50.

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In the Cook Inlet case97 the Supreme Court, as seen above, restored the proper status ante quo, and stated clearly in respect of the alleged historic claim to Cook Inlet that since the navigation rules in question had allowed the right of innocent passage to foreign vessels, a characteristic of territorial seas rather than of inland waters, that the exercise of authority was not sufcient in scope to establish historic title over the area as inland waters. However even here, in two parts of its judgment, the Supreme Court (see shery jurisdiction below)98 seems to have confused or compounded mere interdiction of a foreign shing vessel for an alleged shery offence with a manifestation of “an assertion to . . . exclude foreign vessels altogether”.99 It follows that, at the very least, there should be evidence that there is in operation a mandatory regime of prior authorisation for navigation pertaining in the claimed ‘internal’ historic waters by foreign vessels, as has also been evidenced in more general international practice.100 As, for example, the UN Juridical Regime says,101 if “the claimant State allowed the innocent passage of foreign ships through the waters claimed, it could not acquire an historic title to these waters as internal waters, only as territorial sea”. Past historic claim declarations have stressed the need for exclusion of such innocent passage: see, for example, the Soviet announcement in 1957 (regarding Peter the Great Bay) that the “sailing of foreign ships and ight of aircraft [were] not allowed in or over the area of the Bay . . . unless they [got] permission from the Soviet authority to do so”;102 and the Gulf of Sirte claim by Libya (1973), in the case of which it was stated: “[p]rivate and public foreign ships are not allowed to enter the Gulf without prior permission from the authorities of the Libyan Arab Republic and in accordance with the regulations established by it in this regard”.103 4.2.1 Navigational control and US v. Alaska (2005) There was emphasis in Alaska v. US (2005) on the particular relevance of exclusion of navigation to evidence historic internal waters. As the Special Master opined: “the exercise of sovereignty must have been, historically, an assertion of power to exclude

97 98 99

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101 102 103

422 US 184, at p. 197. See section 4.3. Supra, n. 97 at pp. 201/202. See also id., at p. 202: (“[t]o the extent that the Shelikov Strait incident reveals a determination on the part of Alaska to exclude all foreign vessels. . . .” (emphasis added)). It is a well accepted rule (see, for example, the LOSC, Art. 21(1)(e) and 19(2)(i)) that interdiction of a shery vessel for a shery offence is not a breach of the general right of innocent passage which normally pertains to the territorial sea. See below section 4.2.3; and F. Francioni, ‘The Status of the Gulf of Sirte’ (1984) 11 Syracuse Jnl. of Intl. Law & Comm., 311, 313; and the Reply of Libya (Pleadings, vol. 4, p. 114, para. 31) in Tunisia/Libya which homed in on the alleged lack of Tunisian navigational control in its claimed historic waters; and which emphasised that “there [was] no evidence that Tunisia excluded foreign vessels from the exercise of innocent passage in the ‘Gulf’ ”, Tunisia having conceded it was “frequented by vessels of many nations”. At p. 25, para. 164. Cited by Strohl, op. cit., at p. 350 (emphasis added). See supra, pp. 103–04.

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all foreign vessels and navigation”.104 He quoted also from Cook Inlet the statement that: “the exercise of sovereignty must have been, historically, an assertion of power to exclude all foreign vessels and navigation”.105 On the facts of the case he found that “Russia and the [US] historically did not assert authority to exclude vessels from making innocent passage” through the waters of the Alexander Archipelago.106 4.2.1.1 Alaska v. US (2005): Russian historic record of navigational control of the waters of the Alexander Archipelago As seen above in Chapter 6, the essential purpose of the Russian actions in the early nineteenth century – the ukase and the treaties of the 1820s – was to protect Russian trade in the coastal area of the Alaskan settlements.107 British statements at the 1903 Arbitration (ABT) indicated, as seen, that Russian naval ofcers were “conn[ing] their jurisdiction to within gunshot from the shore”, and limiting their surveillance to

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Report, at p. 14 (citing US v. Alaska (1996) 521 US at p. 11). Id., at p. 109 (citing from 422 US at p. 197). Past US extrajudicial statements to the same effect include the 1972 ‘Stevenson Memorandum’ (see above, n. 81) which noted that there was authority “for the proposition that certain kinds of acts are sufcient to com-municate a claim of sovereignty, including in particular the exclusion of foreign vessels from the area in question”(set out in Alaska Ex. 8, p. 28e at p. 35e in Alaska v. US (2005) (emphasis added)). Id., at p. 109. See further below section 4.2.1.2. As regards the Chicagoff incident (at the expiration of the 1824 Treaty rights), the US Supreme Court opined (supra, n. 93, at pp. 84/85) that there was nothing to indicate that Russia was asserting a right to exclude “foreign vessels engaged only in innocent passage” (emphasis added); and that “Russia did not assert thereby the more sweeping right to exclude even vessels engaged only in innocent passage”. Likewise, as regards the Loriot incident in 1836, the Court opined (id., at pp. 85/86) that even this incident did not “constitute evidence that Russia viewed the archipelago waters as inland waters, because the Loriot was not engaged in innocent passage”. See above Chapter 6. As emphasised in its preamble, Russian trade in the region was suffering “because of secret and illicit trafc” (trade in (sea otter) furs and arms/ammunition). Paragraph 1 of the ukase reserved the “pursuits of commerce, whaling and shery” (emphasis added) on all “islands posts and gulfs” to Russian nationals down to 51° latitude on the northwest coast of America (i.e., also ostensibly through the Archipelago). It was ostensibly in this context alone (see the word “therefore” in Paragraph 2) that “approach” within 100 miles of the coast was forbidden to “foreign vessels”. A letter (of Baron Nicolay to Londonderry at the time (see Proceedings in the ABT case, vol. II. at pp. 95–96)) expressly admitted that the regulation did “not forbid foreign vessels to navigate in the seas which wash the [north west Russian possessions]”; and that the Russian Government did not nd itself in those sea areas “absolutely authorised” to exercise rights of sovereignty, especially forbidding “the approach of foreigners”. Even at the very time of issue of the ukase, a condential memorandum (of November 11, 1822) from Russia stated that any “measures of precaution and supervision” would be “entirely in conformity” with “international usage” (see above n. 77), implying, perhaps some contiguous zone-type jurisdiction. The upshot of the totality of such contemporary statements seems to be that it was not even the original aim of the ukase to interfere with general navigational rights anyway; and thus to create any exceptional rights.

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repressing fraudulent commerce, and disturbance of Russian hunting and shing rights; so that it was “apparent from all this that the Russian Government, had in June, 1823, waived any pretension to interfere with vessels engaged in innocent navigation along their coast”.108 Thus, as seen, the thrust of the relevant wording of the ukase – like the two 1820s treaties – was in respect of limiting trading and shing in the waters of the Alexander Archipelago. In nding that Russia (as seen) did not historically exercise relevant exclusionary jurisdiction in this area,109 the Special Master in Alaska v. US (2005) gave as the reason for this that the necessary “assertion of power [was] required because a nation may exclude vessels from its internal waters, but must allow them innocent passage in its territorial sea”. On this basis he eventually concluded, as seen, that the facts showed that Russia historically had not asserted authority to exclude vessels from making innocent passage through the waters of the Alexander Archipelago.110 4.2.1.2 Application of the navigational aspect to the US control situation in Alaska v. US (2005) In the case, expert witness evidence for the federal Government showed conclusively the past lack of direct navigational control by the US over foreign shipping in the waters of the Alexander Archipelago.111 Even Alaska seemed to have admitted this. For example, it was noteworthy that the Alaskan Responses to the First Set of Interrogatories admitted that Alaska was “unaware”of any facts indicating that Alaska denied foreign vessels the right of innocent passage between 1867 and 1959; and the Alaskan Responses countered weakly that the “US claims” to the inland waters “perforce denied the vessels of other nations” the right of such passage; and that “[f]oreign nations’ failure to press any contrary rights constituted such denials and their acquiescence to the [US] claims”.112 The abovementioned US expert witness Report conrmed, then, what had previously come out at the ‘Juneau Hearings’;113 namely, that foreign shipping – particularly Canadian tourist and trading vessels114 – had been freely transiting these waters for many years without any ‘unreasonable’ US regulation; and that in recent times, many

108 109

110 111

112 113

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See supra, n. 77. Citing the abovementioned dicta from previous caselaw (US v. Alaska (1996) (521 US at 11, and Cook Inlet (422 US at p. 197)) to the effect that for showing historically exercised authority, “the exercise of sovereignty must have been, historically, to exclude all foreign vessels and navigation”. Id., at p. 109. See US-I-2: Dr Barry Gough, “Report on International Navigation Through the Waters of the Alexander Archipelago” (January 7, 2002). At p. 7. But see the statement of Mr Stevenson (loc. cit., supra, n. 81, at p. 16) regarding alleged control by Alaska over navigation in the Inside Passage. See US Archive Ref. 09487 (Regional Planning, Pt VII, vol. II, December 1937) which refers to Canadian freight services through the Archipelago, including the Stikine River, i.e., transport of goods from one part of Canada to another.

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other foreign vessels (including cruise ships, lumber ships and bulk carriers) navigated the Archipelago, some passing without stopping at ports (to avoid adverse weather), with no special treatment being given to Canadian vessels, and, with only stipulations regarding 24 advance notice of arrival in a US port being required for all vessels, plus local pilotage requirements for both foreign and (it would appear) US vessels.115 Thus from the historical angle, it appeared both from the sparse evidence of not only Russian, but also early and late US, jurisdictional exercise in the area of the Archipelago – as supported by previous ndings in the Cook Inlet case116 – that there was, in these Alaskan waters, no relevant navigational control, even in the 19th or early 20th centuries. This evidence was further supported in the case of the Alexander Archipelago by the fact that Britain had in any event acquired navigational rights in the Archipelago for accessing rivers contained therein owing into Canada, as discussed in the next section. 4.2.1.3 The effect of river rights on control of navigation: early examples under treaty in Alaska v. US Even at the time of the issue of the Russian ukase, an ofcial Russian letter of 1822 to the US117 gave a Russian guarantee of “freedom of navigation of the rivers” situate on 115

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It is signicant also that on archive evidence (minutes of US and Canada regarding Dixon Entrance (6/27/1938 (US Archive Ref. 00250 at 00268)) it was agreed in a draft convention on the ‘AB’ line (where Art. II of the US/GB treaty set out historic waters claims) that each party had the right to navigate (and sh) in the Dixon Entrance, implying that Canadian vessels were then navigating in the waters of the Archipelago without such treaty permission. See also the letter from the US embassy, Ottawa (DOS(5/5/1943) (ref. 00424)) stating regarding the proposed treaty that should either State thereafter declare the doctrine of historic waters was to be “applied to any part of the waters contiguous to the coasts of Alaska or British Columbia, within the various bays, straits, sounds, entrances and inlets, such waters shall continue to be open to the vessels, aircraft, nationals of the two countries” (emphasis added). The latter-mentioned requirements are both “regulatory” navigational aspects not peculiar to the Archipelago as such. Similar regulations also applied in Block Island Sound. See US v. Maine (Rhode Island), where although the individual US states argued that “pilotage statutes serve as clear evidence of an assertion of jurisdiction against foreign nations”, the Special Master concluded, following US v. Louisiana, that this was a “reasonable” regulation of navigation “with respect to safety”; and, that, in any event, the regulations applied to “American and foreign vessels equally”, there being “no attempt to exclude foreign trafc under these statutes” (Report of October 1983, at pp. 15–17 (emphasis added)). 422 US 184, at pp. 193/4, esp. at p. 193, n. 14. The Alaskan Response to the First Set of Interrogatories, as seen, could supply no evidence of interdiction of innocent passage since US sovereignty commenced there in 1867. T.W. Balch, writing at the beginning of the 20th century, quoted evidence of Sir George Simpson on “the right of navigating the rivers falling into the ocean . . .” (loc. cit., supra, p. 75, at p. 13, n. 7. Balch also pointed out (id., at p. 16) that rivers and creeks should remain open allowing the Hudson Bay Company to navigate to the coast. Okun (op. cit., at p. 17) has stated that the Russian American Company understood the 1824 US/Russia treaty to equate “inland” waters with “rivers”, citing in this context Art. VI of the Russian/GB treaty which permitted British navigation from waters of the Archipelago upstream to British Colombia –

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the lisière. Following this, Art. VI of the Russia/GB treaty of 1825 was to the effect that British subjects “from whatever quarter they may arrive, whether from the Ocean or from the interior of the the Continent, shall for ever enjoy the right of navigation freely, and without any hindrance whatever, all the rivers and streams which, in their course towards the Pacic Ocean, may cross the line of demarcation upon the line of the coast described in Article 3 of the present Convention” (emphasis added). It is implicit from this that British subjects, at any rate had, in order to enjoy their treaty rights, free rights of navigation in perpetuity also in the waters of the Archipelago in voyaging to or from the rivers therein. In Alaska v. US (2005) the Special Master referred to Art. 6 of the 1825 Russian-GB treaty for additional evidence that the equivalent Russian/US treaty of 1824 did not affect innocent passage in the Alexander Archipelago even after these treaties expired. Citing the US evidence, he said;118 Article 6 [of the 1824 treaty] undisputably applied to the Stikine River, which begins in British Columbia, crosses the Alaskan mainland, and then empties into the waters of the Alexander Archipelago. Under article 6, British vessels could use the Stikine River to pass through the Alaskan mainland when travelling from the Pacic Ocean to British Columbia, or vice versa . . . [A] right to use the Stikine River ‘forever’ would have no value unless British vessels also had a perpetual right to make innocent passage through the Alexander Archipelago to reach the Stikine River. Article 7 of the 1825 Treaty and the similarly worded article 4 of the 1824 Treaty therefore do not imply that Russia was claiming a right to exclude foreign vessels from making innocent passage through the waters of the . . . Archipelago.

The Dryad incident (1834) The Dryad was a British vessel belonging to the Hudson Bay Company which was sailing from the Columbia River to the waters of the Alexander Archipelago en route

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viewed as rendering domination of the continent perfectly useless “by allowing foreigners to navigate the rivers freely and in perpetuity”. Similarly, Moore, in citing Art. VI of the 1825 treaty (op. cit., at p. 510) conrmed that it was agreed that a British subject should “forever enjoy the right of navigation freely . . . all the rivers and streams which, in their course towards the Pacic Ocean, may cross the line of demarcation described in Article III”. This indicated that even the Alexander Archipelago was being referred to as “ocean” (the Pacic Ocean), wherein Russia otherwise recognised navigational freedom. (Compare the British statement relating to “inlets” in the 1903 ABT (Proceedings, vol. IV, Pt. 3 at p. 33): namely that the “omission to insert a provision [in the treaty] for free ingress and egress through the mouths of [enclosed ‘inlets’] while liberty is expressly reserved in the case of rivers, does not support the conclusion that Great Britain was regarded in no event to be entitled to any territory on any such inlets”). Additionally, in the 1903 ABT case, Britain (id., Counter-Case, at p. 26) alleged forcefully that it had the right of innocent passage “over the territorial waters of Russia forming part of her strip of territory and situated in the mouth of the inlet”. As Moore also says (id.), if Britain was prepared to accept the then-proposed line up the mainland, the Russian plenipotentiaries declared that their government would grant to British subjects “the free navigation of all the rivers which empty into the ocean through the said lisière” (emphasis added). Report, at p. 29.

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for the Stikine River, when the ofcer of a Russian brig reportedly approached the vessel and warned that “if the British attempted to proceed up the river in boats” he would “make use of the force he had against them”.119 The British protested against the incident to the Russian Government at the time; and one of the US expert witnesses in Alaska v. US (Dr Gough) reported that as a result of this the Russian Government refuted the local Russian Governor’s interpretation of the 1825 treaty; so that in the future all British traders on legitimate business would not be interfered with; and that: “[t]he Russians did not admit that the Dryad had been stopped by force or by threat of same”: but instead indicated that “language difculties” had caused the problem.120 In his Report in Alaska v. US (2005), the Special Master agreed with the US interpretation of this incident: namely that the incident did not dene Russian policy regarding navigation in the waters of the Archipelago, as the central Russian authorities “did not admit that the incident had happened, and assured Britain that no interference would occur in the future”.121 The later 1871 treaty An 1871 treaty (of 8 May) between the US and Britain122 reinforced (post 1867) the spirit of the earlier Russia/GB treaty. Art. 26 of the 1871 treaty provided in its relevant part that: The navigation of the rivers Yukon, Porcupine, and Stikine, ascending and descending, from, to and into the sea shall forever remain free and open for the purposes of commerce, subject to any laws and regulations of either country within its own territory, not inconsistent with such privilege of free navigation.

The mention of the Stikine river is signicant as this river, like the other two, has its headwaters in Canada, but (in its case) runs through the former ‘lisière’ into the sea, where it joins the sea in the middle of the Alexander Archipelago (at 56° 40'N). Although under the treaty provisions British ships were not expressly granted freedom of navigation beyond the mouth of this river and into the sea waters of the Archipelago itself (and beyond into the open seas), this transit privilege – in such similar terms to that in the 1825 treaty – would have been useless without such implied rights, especially as (like the 1825 treaty) it covered going up, as well as coming down, the waters of the Archipelago. The treaty here specically mentioned navigation “for the purposes of commerce”, and so indicated that even for trading purposes the 1825 treaty carried over no restrictions (implying that for this purpose at least the Archipelago’s waters were at most territorial seas and not inland waters). Thus although the 1871 treaty acknowledged the right of the US to prevent foreign (i.e., non-British or non-Canadian navigation in such areas in its inland waters), this is as far as it went. In Alaska v. US (2005), the Special

119 120 121 122

See Special Master’s Report, at p. 30. Id., at p. 31. Id., at pp. 31/2. Statutes at Large of 1871, at pp. 863, 872.

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Master, citing Art. 26 of the treaty, accordingly concluded that, as with the 1825 Russian/British treaty, “granting British vessels the right to navigate the Stikine River to and from the sea would serve no purpose unless these vessels also had the right to cross the waters of the Archipelago”123 4.2.2 Discussion of lack of navigational restriction in the El Salvador/Honduras case In the case of the Gulf of Fonseca, the ICJ in El Salvador/Honduras noted what “at rst sight might [seem to] be an inconsistent element in the Court’s [1917] pronouncement, when it allow[ed] that the waters of the Gulf that ‘. . . belong to the three States that surround them . . . were subject to . . . the right of [innocent passage] over those waters . . . by . . . the ships of all nations’ ”. The ICJ additionally commented that “[s]uch rights are at odds with the present general understanding of the legal status of the waters of a bay as constituting ‘internal waters’”.124 The Court explained this seemingly ‘out-of-line’ statement by, inter alia, stressing that as the Gulf “was a bay with three coastal States, there [was] a need for shipping to have access to any of the coastal States through the main channels of the bay and the ocean”.125 As it also stated later in its judgment, there had to be rights of passage through the remaining waters of the Gulf “not only for historical reasons but because of the practical necessities of a situation where those narrow Gulf waters comprise the channels used by vessels seeking access to any one of the three coastal States”.126 Hence the Court concluded that “these rights of passage must be available to vessels of third States seeking access to a port in any one of the three coastal States”; and thus the waters were “if indeed internal waters, internal waters subject to a special and particular regime, not only of joint sovereignty, but also rights of passage”.127 It was for such a reason that Judge Oda dissented,128 saying that the waters of the Gulf were, under the general laws of the sea, “the sum of the distinct territorial seas of each respective State”; and that in effect a bay could only legally exist “where the right of

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124 125 126 127 128

See his Report, at pp. 39–40; and also at p. 114. The US Reply Brief to Alaskan Exceptions, (at p. 10) had similarly alleged that “the Russian-British treaty necessarily assumed that British ships were entitled to traverse Archipelago waters to reach inland waters, such as the Stikine River, that were the subject of the treaty”. In April 1824, Nesselrode had given an assurance to Britain that Russia would “guarantee the free navigation of rivers” (mentioned in Jette’s judgment in the 1903 ABT case, Proceedings, vol. I, at p. 76). See also discussion by Lord Alverstone in the case (id., vol. I, at p. 40) regarding “rivers and streams”. This may be compared with the earlier 1818 treaty (cited id., vol. II, at p. 52) where navigation on northwest coast was to be free and open only for a 10-year period. See also on this J.W. Foster, supra, p. 134, n. 92, at p. 431, regarding Russian concessions to Britain in pre-treaty negotiations (grant of “free access to British posts in the interior by the rivers which may cross the Russian strip on the mainland”). Supra, p. 2, at pp. 245/6 (emphasis added). Id., at para. 394, p. 593. Id., at para. 412, p. 605 (emphasis added). Id. (emphasis added). Id., at p. 733, para. 3 (emphasis added).

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innocent passage is not granted”,129 the waters of ‘historic bays’ being “nothing other than internal waters”.130 Taking the abovementioned dicta of the ICJ at their face value, one might disagree with a further reason the ICJ gave to explain the above historical ‘anomaly’, as it seems to controvert intertemporal legal logic by retrospectively giving historic waters regimes a contemporary interpretation in the post-UNCLOS I era (in what is strictly-speaking a ‘bay’ situation anyway). For the Court also stated:131 That rights of innocent passage are not inconsistent with a regime of historic waters is clear, for that is precisely now the position in archipelagic internal waters and indeed in former high seas enclosed as internal by straight baselines.

If waters enclosed by straight baselines are, legally speaking, more akin to coastal archipelagic waters than ‘bay’ waters stricto sensu, it is, of course, now the case (see the TSC, Art. 5(2) and the LOSC, Art. 8(2)) that in their strictly juridical regime as internal waters they may nonetheless be still subject to rights of innocent passage relative to areas which were previous territorial sea (or high seas): see the phrase “enclosing waters which had not previously been considered [as internal]”; in contrast to a long-standing historic internal waters claim, in which case the waters would “previously” have been normally considered as internal. However, in contemporary law, in general legal terms evidence of continuing rights of passage would not necessarily be incompatible with a (juridical) internal waters regime in this instance. Even in this instance it is arguable132 (as seen in Chapter 3) that, analogous to the ‘savings clause’ in the contemporary treaty provision specically for ‘historic bays’ as such, any (preluding) historic waters status and its regime overrides (implicitly at least) such internalised juridical regime aspects through a necessary implied term for coastal archipelagic waters.133 The Court went on to give yet an another reason – one of ‘necessary implication’ – for ignoring this usual requirement of ‘no-right-of-innocent-passage’ for proof of historic internal waters; namely that of the “practical point” relating to the exceptional nature of a pluristate bay; that since “these waters were outside the three-mile maritime belts of exclusive jurisdiction in which rights of innocent passage was nevertheless recognised in practice, it would have been absurd not to recognise rights in these waters [i.e., outside 3 miles], which had to be crossed in order to reach these [3-mile] maritime belts”.134 Judge Oda in his Dissenting Opinion in the case, whilst making much of the

129 130 131 132

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Id., at p. 745 para. 23 (emphasis added). Id., at p. 746, para. 26. Id., at p. 593, para. 393 (emphasis added). For the same considerations relating to bays applying to historic archipelagic waters, see, e.g., supra, pp. 41, 42, and infra, p. 297, n. 90. See, e.g., above Chapter 3, section 1.2. Supra, n. 131, at p. 593. For this very reason the 1917 judgment – which accorded such right of passage in the Gulf of Fonseca – has been criticised by Gidel as being out of character with an historic bay regime (see op. cit., vol. III, at p. 627, cited by Blum, op. cit., at 308, who explains that one must bear in mind here the “unique legal characteristics” of the Gulf,

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point that such right of innocent passage is totally inconsistent with the regime of an historic bay “assimilated to internal waters”,135 nonetheless agreed that all three riparian States in the Gulf of Fonseca could (early in the 20th century) have “been united in considering that the small expanse of sea represented by the Gulf – which would in any event be covered by their respective territorial sea and police zones – should not remain open to free use by any State other than themselves”; and that they “actually voiced such a rejection” of an open seas policy then prevailing.136 4.2.3 Relevant control necessary on the navigational issue Following the international legal requirements, it seems that that for historic waters status to arise, any alleged control of navigation must relate directly to denial of innocent passage. Any lesser control with navigation, as seen above, would be insufcient to evidence historic internal waters, as the lack of a right of innocent passage is a hallmark of such waters’ status as bays.137 In international practice, US caselaw evidences most clearly this rule concerning relevant interference with foreign vessels’ coastal navigation. In US v. Louisiana, for example, the state of Louisiana had placed strong reliance on its alleged navigational control within the Coast Guard’s “Inland Water Line” (enacted rules of the road for seagoing vessels). The Supreme Court dismissed this as irrelevant evidence, saying that because “it is an accepted regulation of the territorial sea itself, enforcement of navigation rules by the coastal nation [cannot] constitute a claim to inland waters . . .”.138 Similarly the Special Master in this case had stated that “reasonable” regulation of navigation is “not alone a sufcient exercise of dominion to constitute a claim to historic inland waters” because enforcement of navigation rules by the coastal State is an “accepted, permissible regulation of the territorial sea itself”,139 adding that Article 17 of the TSC (which requires foreign ships exercising innocent passage to comply with the coastal State’s “laws and regulations” and in particular “with such laws relating to transport and navigation”) would “[a]t most only support an historic claim to a territorial sea”.140 In like fashion also, the Special Master in Alaska v. US (2005)141 analysed the effect of a State Department Legal Adviser’s Memorandum regarding there being no general right of innocent passage in the Alexander Archipelago and concluded:

135 136 137

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including the fact that at one point of history in the 19th century, it was surrounded by just one State, namely the Federal Republic of Central America). Eg., id., at p. 739, para. 15, he cites Shucking at the 1930 Hague Codication Conference. Id., at p. 757, para. 46. For representative opinions on this, see, e.g., Bouchez, op. cit., at p. 255; and Blum, op. cit., at p. 255. 394 US 11 at p. 25(1969) (emphasis added); and see the Special Master’s Report, July 1974, at pp. 14, 19. Id., at p. 19. Id., at pp. 14/15. Additionally, in US v. Louisiana, the Coast Guard had specically disclaimed any boundary signicance of the lines. The Special Master in the case consequently noted that the Supreme Court had found it conclusive that there was no evidence that the line had been intended or treated as a boundary: Report of July 1974, at p. 8. Report, at p. 125.

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The memorandum supports its statement that foreign vessels have no right of innocent passage by observing that foreign vessels must give prior notice before entering the waters. The [US], however, correctly notes that under the Convention [i.e., the TSC], foreign ships may have to comply with notice requirements . . . Accordingly, a requirement that vessels entering waters of the Archipelago en route to [US] ports must give notice before entering those waters does not mean that the [US] is denying them innocent passage under the Convention.

4.2.3.1 Mere pilotage rules and navigational safety activities insufcient Not surprisingly, in past US caselaw, pilotage rules have been found to be similar technical navigational rules in US v. Maine et al., (Rhode Island/NY ),142 so not evidencing relevant historic title, as the Special Master there found these to be a reasonable regulation of navigation. The seemingly out-of-line nding of the Supreme Court in the Alabama and Mississippi Boundary case143 to the effect that, inter alia, the development of the Sound there for intracoastal waterway purposes, including erection of a lighthouse, were sufcient to show effective and continuous acts of sovereignty by both federal and State authorities, is an anomaly and does not t the later Supreme Court requirements. Past Soviet theorists tried to justify Soviet historic Arctic waters claims as being based merely on the provision of navigational facilities in the waters, citing in support the ICJ’s judgment in the Fisheries case.144 Strohl, however, relevantly comments that the US could have made a similar claim, e.g., “in the Gulf of Alaska” (sic); and that it was “not believed” that such criteria as erection of “navigation facilities, hydrographic surveys or both” would nd acceptance among other maritime States to support historic title.145 4.2.3.2 Port clearance obligations The requirement of ‘advance notice’ as to entry of waters may in some circumstances rule out the right of innocent passage (see the Corfu Channel case);146 but that seems

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Report of the Special Master, October 1983, at pp. 16–17. 470 US 93, at pp. 104, at p. 105 (1985). The case also, incidentally, shows signs of undue reference to “vital interests” such as defence (construction of a military fort on Ship Island in 1858) – a factor much queried by the federal Goverment at the time: see J.M. Zimmerman, ‘The Doctrine of Historic Bays: Applying an Anachronism in the Alabama and Mississippi Boundary Case’ (1986) 23 San Diego Law Review, 763, at pp. 780/781. He rightly comments that “[t]he [Supreme] Court retreated from its previous decisions regarding the extent of authority necessary to establish sovereignty, rejecting the [US] contention that exclusion of foreign navigation from the disputed waters was required to prove historic bay status” (id., at p. 781 (emphasis added)). Where the Court recognised that the Indreleia route was only rendered navigable by special work rendered by Norway: cited in Strohl, op. cit., at p. 274. Id. UK v. Albania (1949) ICJ Rep. 4. There is mention in a 1972 US Memorandum (‘Stevenson Memorandum’) (supra, n. 113, see Alaska Ex. 8, p. 28e, at p. 36e in Alaska v. US (2005)) that an historic claim could not arise in respect of internal waters if a State has “permitted

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not to be the case, for example, in US practice. It appears this notication procedure is not a requirement for ships merely entering the waters of the Alexander Archipelago, for example, without intending to enter US ports; and is not directly related to whether they have to traverse inland waters en route. As such it is not only merely a US domestic requirement (24 hours notice to US authorities before entry), but also it seemingly applies generally to US port entry (without any special preferential treatment for Canadian ships).147 It thus amounts to a reasonable regulation of navigation in accordance with the law of the sea, and is not a requirement for permission to enter US waters generally.148 4.3

Control of sheries

4.3.1 General legal considerations Undoubtedly, interference with foreign shing has, as seen, been cited in past international caselaw as evidence of historic claim; for example, in the Fisheries case, regarding the Norwegian claim to historic bays, the 1911 incident respecting the British trawler Lord Roberts which was found guilty of violating a 1906 shing law in Varangerfjord.149

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innocent passage as in territorial seas”; and that it was understood from Coast Guards familiar with practice in Alaska that “no right of innocent passage has generally been accorded in the Alexander Archipelago”; but also (and “moreover”) it was stated that “vessels entering the waters of the Archipelago en route to US ports have been required to give notice before entering these waters” (with an apparent “exception in the case of the “Inside Passage” there where “US and Canadian vessels (only) transit freely”. See Alaska v. US (2005), where the source of this US requirement is set out in the Defendant’s Response to Plaintiff’s First Set of Interrogatories, First Requests for Production of Documents, and First Request for Admission, of November 1, 2001 at p. 16: namely Title 33 of the Code of Federal Regulations, Part 160, Subpart B, in which 33 CFR 160. 207, entitled “Notice of arrival: vessels bound for ports or places in the United States”, is said to be “generally applicable” (emphasis added). As Churchill & Lowe state “States have a wide right to prescribe conditions for access to their ports”, citing the LOSC, 1982 (Art. 25(2): The Law of the Sea, 3rd ed 1999, at pp. 62 & 63, citing also Nicaragua v. US case ((1986) ICJ Rep. 14, 111). Ngantcha states that a coastal State’s powers are wider if a vessels intention to touch at port is known, including “the right to satisfy itself that the conditions of admission to the port are complied with”: The Right of Innocent Passage and the Evolution of the Law of the Sea (1990), at p. 54. Cf. the Soviet decree regarding Peter the Great Bay allowing foreign vessels to freely enter and leave the Soviet “open Harbour” of Nakhodka, provided they obey Soviet instructions and limit their navigation route (evidence of limited navigational control cited by Strohl, op. cit., at p. 350). The more general remaining navigational prohibition aspect featured strongly in the Japanese protest of July 26, 1957 (cited by Strohl, id., p. 350); and is conrmed by A.A. Volkov (Maritime Law (1969) at p. 77) (“[n]avigation of foreign vessels . . . in the said bay may take place only with permission of the competent USSR authorities, except for calls at (and departures from) the open port of Nakhodka by foreign ships”). See supra, p. 123, n. 30.

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Such jurisdictional control was also relied on by Tunisia in Tunisia/Libya in its claim to historic internal waters. The Libyan Memorial in the case alleged that the most Tunisia had ever claimed in the Gulf of Gabes was a “property right” in certain species of sh, sponges and coral; and that: “[a]t no stage prior to 1973, did Tunisia claim the [Gulf ] as territorial waters, let alone internal waters”.150 Most recently such jurisdiction was greatly relied on by Alaska to prove historic inland waters in the Alexander Archipelago;151 and as will seen below, this type of jurisdictional control was exhaustively discussed both at rst instance and in the Supreme Court. This whole matter has (as seen) in more recent times been intertemporally affected by the progressive expansion of exclusive shery zones beyond a territorial sea limit.152 4.3.1.1 Reasons why such control may be insufcient Control or prohibition of shing in claimed historic waters will not, per se, evidence internal waters status if it is merely exercised within traditional territorial sea (or now shery zone) limits; for the simple reason, as seen above, that this is not evidence which points unequivocally to internal waters status (see ‘commensurate jurisdiction’ discussion above); and indeed it may only indicate a single jurisdictional historic right in such waters – e.g., merely an historic shing zone.153 As Blum says, such acts may only 150

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Pleadings, vol. 1, at p. 506, para. 140. It was additionally alleged that there was “no evidence of a Tunisian denial of innocent passage or even a claim that passage existed by right of innocent passage rather than by right of freedom of navigation on the high seas”. Judging by the evidence given at the Juneau Hearings (1972) and the proceedings in the Cook Inlet case, Alaska had, in the past at least, relied exclusively on shery enforcement activities to evidence the allegedly effective exercise of its historic ‘claim’, based on, it has to be said, suspiciously uniformly-worded and standardised statements from shery enforcement ofcers. See, e.g., the allegation in the 1972 ‘Stevenson Memorandum’ (supra, n. 146, cited in Alaska Ex. 8 at p. 29e (Alaska had submitted “limited” evidence)). It summarised this evidence as indicating that it was the understanding of the sheries enforcement authorities in the Archipelago that the waters included all waters within three miles seaward of lines drawn from headland to headland across all bays etc; and, with two exceptions, the afants indicated that they were unaware of any foreign shing within these waters during the periods covered that such shing would have been regarded as illegal (id., at p. 31e). In Alaska v. US (2005), the Special Master stated that the “parties agree[d] that this memorandum describe[d] a claimed right of exclusion” (Report, at p. 104). See above n. 81. It is noteworthy on this latter point that at the Juneau Hearings, a US representative testied that so far as he knew, although there had been no foreign protest at the alleged Alaskan lines, this was because there had been no occasion for protest; and here he expressly cited arrest of Russian shing vessels within the “12-mile contiguous zone in violation of the Contiguous Zone Fisheries Act of 1996”, i.e., under later shery legislation (Juneau Hearings, supra, p. 41, n. 13, at p. 8 (emphasis added)). See also Bouchez who implies this (op. cit., at p. 250) (“limited to only one aspect of the authority of the coastal State”). Purported control of foreign shing on areas of high seas may give rise to some sort of historic claim in appropriate cases. Compare, for example, the allegations by Libya in Tunisia/Libya (Counter Memorial, Pleadings, vol. II, at pp. 195/6, paras. 122–123) regarding alleged Tunisian control over foreign shing, where only one arrest of a foreign vessel was claimed to be on the “high seas”.

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amount to an assertion and enforcement of certain rights which do not entail a claim to “exclusive possession”. Thus “the right of excluding foreign shermen” does not “presuppose . . . any historic claim, for it is perfectly legitimate for States to prohibit shing by foreigners not only in their internal waters but also in their territorial sea”.154 As the US Supreme Court emphasised clearly in the Cook Inlet case, “[t]he assertion of national jurisdiction over coastal waters for purposes of sheries management frequently differs in extent from the boundaries claimed as inland or even territorial waters”;155 i.e., it may involve “a characteristic of territorial seas rather than inland waters”.156 This statement of the international rule is to be preferred to any isolated evidence elsewhere which is more equivocal and not necessarily referable to historic

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Op. cit., at p. 297, citing Gidel as his authority (emphasis added). As Goldie puts it (though overstatingly in terms of types of historic waters generally): “[t]he states asserting [an historic claim] must unequivocally exercise an authority which is exclusively referable, not to some lesser claim, such as the regulation of sheries and game, but to its plenary and sovereign power”: ‘Historic Bays in International Law – An Impressionistic Overview’ (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 211, at p. 248. Goldie admits (id., at pp. 248/9) that this rule is necessarily a “relative notion”, citing the older Direct US Cable Company case as an example where a foreign court was (unlike the Supreme Court in US cases) satised with less – i.e., nding continued control of shing in Conception Bay as effectively evidencing British sovereignty. 422 US 184, at p. 199. It may be noted that if foreign shermen are shing within alleged historic waters under express licence granted by the coastal State, this is not incompatible within expansive historic internal waters claims, as shery rights here would not be of general application. For example, in the case of Hudson Bay, it was stated in 1907 that foreigners could practice whaling there on payment of licence fees. By contrast, a US commentator, T.W. Balch, (in ‘Is Hudson Bay a Closed or Open Sea?’ (1912) A.J.I.L. 40) seems to ignore this consensual factor and has cited such evidence against historic status here; i.e., inter alia, the fact that American nationals had shed the waters for a considerable time. Jessup (op. cit., at p. 412) has commented in this case that he was “unaware that this legislative claim had been enforced against foreign vessels or whether any foreign government had protested”. Other US caselaw shows that such jurisdiction is explicable under a territorial sea claim, or, at least, it is not unequivocally referable to an inland waters claim. In the rst tidelands litigation, Special Master Davis in US v. California (Report, October 1952, at p. 35) said that this situation involved “only a matter of regulating shing which had no exclusive aspects”; and that the alleged acts of the State of California did not constitute an assertion of exclusive authority over the relevant waters. Similar reiterations have come in US v. Louisiana (1974) (Special Master’s Report, at p. 19), and in US v. Florida (1984) (Special Master’s Report, January 1984, at p. 45) (evidence of State enforcement in Florida Bay did not establish exercise of authority beyond already recognised limits, or against foreign nationals). Compare the allegations by Libya in Tunisia/Libya (Counter Memorial, paras. 122– 123, Pleadings, vol. 2, at pp. 195/6) regarding alleged Tunisian control over foreign shing, which was alleged to be consistent only with a “shery zone”. US v. Alaska 422 US 184, at p. 197.

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internal waters as such.157 The more particular international requirements in this regard are discussed in the following sections. In the Cook Inlet case, Alaska had raised the issue of the arrest of two Japanese vessels in the Shelikov Strait. It appeared that at least one of these was operating more than three miles from shore.158 The background to this incident involved the federal lack of desire to intervene in this incident; and a formal Japanese protest about the arrests.159 Although the US District Court put much weight on this incident, the Supreme Court concluded it was an insufciently clear exercise of jurisdiction to support historic title, most particularly as the US neither supported nor disclaimed the State of Alaska’s claim.160 The Supreme Court did, however, emphasise that the incident deserved “scrutiny because the seizure of a foreign vessel more than three miles from shore manifests an assertion of sovereignty to exclude foreign vessels altogether”.161 Taken at face value, this seems to be an unintended overstatement inasmuch as it tends to confuse or conate shery jurisdiction with the more expansive jurisdiction over navigation generally; and it fails to take into account the signal fact that here that it was merely a shing vessel being arrested for an alleged shery offence, not an interdiction of innocent passage as such (of any type of vessel). One US commentator has rightly described the Supreme Court’s treatment of the incident as “troubling” because the Court seems to have accepted that, in principle at any rate, the arrests might be evidence of an “inland water claim”despite the fact that it had also conrmed the “commensurate” jurisdiction necessity, and had noted that exercise of shery jurisdiction could “frequently” differ “in geographic extent from boundaries claimed as inland or even territorial waters”.162

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See, e.g., the Separate Opinion of Judge Hsu Mo in the Fisheries case (supra, p. 2, at p. 138) (“the prohibition [by Norway] of shing by foreigners . . . is undoubtedly a kind of State action which militates in favour of Norway’s claim of prescription” (cited by Blum, op. cit., at p. 116, fn. 1). See M.W. Reed, op. cit., at p. 125. See above p. 146, n. 29. 422 US 184, at p. 203. Id., at p. 201 (emphasis added). Earlier in its judgment (id., at p. 198) the Supreme Court does seem to get the more general principle right by citing from the Louisiana Boundary case and referring to the “navigation rules” there having “allowed innocent passage”. Cf. Alaska’s Exceptions (at p. 28) in Alaska v. US (2005), where Alaska in similar fashion exaggeratedly relied on the Cook Inlet decision as stressing the seizure was more than 3 miles from shore and so manifested “an assertion of sovereignty to exclude foreign vessels altogether”. Reed, op. cit., at pp. 189/9. The author concludes (id., at p. 202) that the incident could possibly have been an assertion of shery jurisdiction beyond the territorial sea, but gives the ‘benet of doubt’ to Alaska here, perhaps also conating the two separable issues of navigational interference and sheries interdiction, by saying that to the “extent that the . . . incident reveals a determination . . . to exclude all foreign vessels” there, it had to be viewed as supporting an inland waters claim.

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Most recently in Alaska v. US (2005), the Special Master found against this type of jurisdictional control having been relevantly exercised in the Alexander Archipelago on the facts there, despite the fact that the “laws and regulations cited by Alaska [had] broad enough language that they might have reached foreign vessels within all the waters of the Archipelago”. This was because Alaska had presented “no denite examples of actual enforcement of shing regulations against foreign nationals within the pockets and enclaves [of the Archipelago]”.163 4.3.2 In any event, shery enforcement outside the territorial sea must be against foreign ships/nationals It follows from the above that any such enforcement against a claimant State’s own nationals (or own vessels) even in international waters by such a State would not be unequivocally commensurate with internal waters jurisdiction. This aspect has been stressed in past US caselaw.164 The point here is that international law (and so State practice) generally allows such jurisdictional control against nationals (on the nationality principle) or against a State’s own ships (‘jurisdiction following the ag’ – the ‘oating island’ theory).165 As was stressed by the Supreme Court in the Cook Inlet

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Report, at p. 119. See, e.g., US v. California, where the Special Master’s Report (1952, at p. 35), in discussing the past Californian case of Stralla, opined “there [was] nothing to indicate that the defendants were citizens of a foreign country”. The point was endorsed by the Supreme Court (381 US 139, at pp. 172–5) to the effect that these instances of assertion of right by the State of California in the courts did “not constitute an assertion of exclusive jurisdiction. . . .” (emphasis added). This approximates more generally with exercise of criminal jurisdiction beyond the territorial sea as an alleged basis of historic waters claim: see, e.g., US v. Florida (Special Master’s Report of Ocober 1973, at p. 41) (“effective exercise of sovereign authority . . . not merely with respect to local citizens but as against foreign nationals as well”). The same idea was repeated id., at pp. 42, 43. For this reason, in the past, US states have tried to bring out the alleged ‘foreign’ enforcement aspect in their pleadings (see, for example, the repeated phrase in Louisiana’s claim to control its inland waters (set out as Appendix B in US v. Louisiana, Special Master’s Report, July 1974, at pp. 67–69 (arrests etc “regardless of nationality”). See also the emphasis by Edeson, regarding the Australian historic claim to Shark Bay, of the signicance of enforcement of shery regulations against foreigners indicating “effective” control: supra, p. 164, n. 12, at p. 301. Indeed, past US practice shows a disinclination for US shery laws to apply even to US citizens/ships on the high seas. Thus any archival evidence which seemed to suggest an Alaskan proposal to regulate US salmon shing “on the high seas”, dening the “waters of Alaska” to include all of the Alexander Archipelago (as in 1955 (US Archive Refs 08756/58)) were not relevant indications of the necessary jurisdictional claim to inland waters insofar as they applied to US nationals. In practice, for example, regarding shery regulations, it appears to have been the case that Alaskan shery laws (covering (in the stock phrase) “the waters of Alaska over which the [US] has jurisdiction”) have in fact been applied only to the described regulatory areas. A FWS Memorandum (of 5/1/1952 (emphasis added)) stated that it was the ofcial opinion that these laws and regulations “do not apply to shermen operat-

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case,166 only one of the several shing regulations relied on by the District Court to nd historic title – the Aliens Fishery Act – treated foreign vessels differently from American vessels; and even this did not “purport to apply beyond the three mile limit”. The Supreme Court there found that every case of shery enforcement in the lower inlet (i.e., seemingly outside any three-mile limit) had been against US vessels. Hence it added:167 “these incidents prove very little, for the [US] can and does enforce shing and wildlife regulations against its own nationals even on the high seas”. 4.3.2.1 Alleged jurisdiction against foreign shing vessels outside the territorial sea in Alaska v. US (2005) In this respect, no historical succession rights to the US accrued outside three-mile limits from Russia. This was effectively conrmed in the 1893 Fur Seal Arbitration, where the Tribunal afrmed that in the 1824 and 1825 treaties, Russia “admitted that her jurisdiction . . . should be restricted to the reach of a cannon shot from shore”; and that it appeared that “Russia never asserted in fact or exercised any exclusive jurisdiction in Behring’s sea or any exclusive seal sheries therein beyond the ordinary limits of territorial waters”; and that not only did Britain “not recognise or concede any claim, upon the part of Russia, to exclusive seal sheries” outside three-mile limits, but that also no exclusive seal shery rights were “held or exercised by Russia after the Treaty of 1825”.168

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ing elsewhere, even though they may be American citizens on vessels registered under the American ag”. This apart, it has been succinctly commented ((by M.W. Reed, op. cit., at p. 337 (emphasis added)) that “in sum, to constitute evidence of historic waters claims, assertions of jurisdiction must have been made against foreign citizens or vessels to be clear that they do not simply represent extraterritorial exercises of personal jurisdiction . . .”. 422 US 184, at pp. 198/99. Id., at p. 198 (emphasis added). The Court then proceeded to cite several relevant statutes and legal decisions. Cited in Moore, op. cit., vol. I, at pp. 912/3. It may be noted that in the Cook Inlet case, the Supreme Court there ignored two alleged incidents of interference, in the previous century, with shing in the Cook Inlet (in 1892/93) which (allegedly) concerned merely the stopping of US vessels (and in one instance prosecution thereof (422 US 184, at pp. 193/4). These alleged instances of historic jurisdictional enforcement concerned alleged violations of a statute of 1868 (Rev. Stat 1956 (1898)) prohibiting the killing of otters within the limits of Alaska or “in the waters thereof ” (id., at p. 192). Thus the jurisdictional instances were essentially concerned with alleged US actions post-1867. The Supreme Court rightly commented on this legislation as not indicating whether the waters of lower Cook Inlet were encompassed within these statutory limits (id.). The Court noted (without comment, it seems) that the District Court had found that in 1892 and 1893 (i.e., in the early post-cession period) ve American vessels were boarded more than three miles from shore in the lower inlet by [US] revenue ofcials investigating possible violations of the relevant statute (id.)

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The ‘Stevenson Memorandum’ of 1972 additionally purported to differentiate the Alaskan Cook Inlet situation (though prior to the Supreme Court’s judgment on same) by suggesting that the evidence there indicated that there had not been enforcement activities against foreign nations in the contested area in Cook Inlet; and remarked that, by contrast, there was then evidence – “though meager” – which indicated with respect to the Alexander Archipelago that there “were arrests in all cases of foreign shing and that penalties were imposed in some cases”.169 As will be seen below,170 this does not appear to be clearly so, at least outside three mile arcs from the islands and mainland there. However, the Memorandum went on to inconsistently admit on this matter:171 “[t]he evidence is inconclusive on this point, however, since much of the area [of the Archipelago] consists of territorial seas even according to the Task Force Committee charts, and foreign shing would thus have been prohibited in these areas in any case”. In other words this memorandum stressed, and admitted, possible lack of the ‘commensurate jurisdiction’ requirement. In Alaska v. US (2005), Alaska sought to distinguish the Cook Inlet dicta on the basis that “the Court in that case found that the federal sheries regulations did not establish inland waters status ‘because there was no evidence that foreign vessels were treated differently from [US] vessels’ ”.172 In his Report in Alaska v. US (2005), the Special Master referred to the apparent Alaskan assumption that “a coastal nation may not regulate shing by foreign nationals on the high seas”; and the further inference from this that “if the [US] enforced shing regulations on the waters overlying the pockets and enclaves of the submerged lands, the [US] could not have viewed the waters as high seas”: i.e., the Alaskan claim was that the US has exercised such enforcement power

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(it is relevant, perhaps, that the jurisdictional context was revenue rather than sheries jurisdiction). As the Supreme Court added, the “District Court made no ndings about enforcement [of this statute] after June 1893 ((id., at n. 14 (emphasis added)), which (paradoxically) had led the District Court to assume that the statutory prohibition “was enforced throughout Cook Inlet”. The Supreme Court in a signicant footnote (id., at p. 193, n. 15) also referred to the fact that the District Court had not found any “foreign vessels” had ever been arrested in Cook Inlet on charges of violating (the later and more important)Alien Fishing Act of 1906. It is indicated, then, in this litigation that the District Court’s reported opinion “did not discuss the exercise of sovereignty prior to 1906”, but did in “unreported ndings”(vaguely) indicate that it relied on assertions of authority in the “early American period” (id., at p. 190, n. 9) (emphasis added); and that the unreported ndings indicated that the court relied on assertions of authority dating from Russian territorial times as well as from the early American period”(emphasis added). The reference back to Russian times is entirely vague, as is what is meant here by the phrase “early American period”. Alaska Ex. 8 at pp. 37e/38e (emphasis added). Infra, at pp. 201, 202. Supra, n. 146, at p. 38e (emphasis added). Report, at p. 121.

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against foreign nationals “throughout the waters of the Archipelago”, including those outside the 3-mile limit which thus could not, it argued, constitute territorial sea.173 As against this the US federal argument on this issue was that even if regulation of sheries was probative of historic title in itself (which was denied), Alaska could not show that the US had “consistently enforced shing regulations against foreign nationals”, in the enclosed waters lying “more than three miles from shore”.174 On this the Special Master was to opine175 that Alaska was “apparently “ resting its argument on a “brief passage” in the abovementioned earlier case. He interpreted this dictum as “not suggesting that shing regulations establish inland water status if they treat foreign vessels differently from [US] vessels”; and that “[o]n the contrary, the Court simply recognised that the Alien Fishing Act was the only law cited in that case which clearly applied to foreign vessels”; that the “Court reiterated the point that nations frequently assert jurisdiction to enforce shing regulations even beyond their territorial waters”; and that “[t]his point did not appear to be limited to enforcement of shing regulations against a nation’s citizens”; so that “[a]ccordingly, the [Supreme Court] would not recognise a nation’s enforcement of shing regulations in particular waters, even against foreigners, as sufcient proof that the nation regarded the waters as inland waters or even territorial sea”.176 However he found in any case with reference to the 1926 and 1928 shing regulations for Southeast Alaska – which Alaska alleged were enforced against foreign nationals, citing ofcials at the 1972 Senate Committee studying the Alaskan boundary (where former shery enforcement ofcials mentioned several incidents involving foreign vessels) – that the US had “correctly” pointed out that these incidents did not appear to have happened in waters of the Archipelago.177 The Special Master thus concluded178 that Alaska had not identied any instances (from 1940 to 1956) in which the US actually had “enforced these regulations” within the enclosed waters outside 3 miles from shore, as there was no clear evidence that there had been a consistent policy of shery enforcement outside 3-mile limits against foreign vessels in the Archipelago, despite the Alaskan assertion that “sheries regulations which dened the waters of Alaska . . . as including all of the interior waters and a three-mile belt of waters seaward of the islands [of the Archipelago] and straight lines

173 174 175 176

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Id., at p. 65. Id., at pp. 65/66 (emphasis added). Id., at p. 121. Id., at pp. 121/2). He cited, id., Organised Village of Kake v. Egan (174 F. Supp. 504; 362 P. 2d at 926–7), but said that such matters were not “in themselves” part of Alaska’s evidence” supporting its claims, as the decisions came after Alaskan statehood and were at most relevant for their “persuasive value” as to their examination of the public record. Report, at pp. 68/69. Id., at p. 71.

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drawn across [its] entrances . . . were consistent only with the interior waters being inland waters”.179 As he there stated:180 Alaska presents no denite examples of acual enforcement of shing regulations against foreign nationals [in the Archipelago]. The location of the Marguerite incident remains

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In its Response to the First Set of Interrogatories (at p. 6). It appears that the regulatory districts and sections of SE Alaska commercial sheries were, and are, purely broad administrative areas. An FWS memorandum of 1957, regarding charts of “waters of Alaska” for Canada, described the lines drawn as being solely for purpose of shery management (of 8/27/1957 (US Archive Ref. 08864)). They are thus only of internal interest in terms of marking out the various general patrolling districts. The provisions of the relevant 1956 Act dening the “waters of Alaska” were discussed and set out by the Special Master in US v. Alaska (1996) (Report, 1996, at pp. 116–118). The apposite wording in section 101.19(c) of the 1956 US Department of the Interior shing regulation was certainly geographically-specic in that it referred to waters extending three miles seaward from “any island group or groups of islands, including the islands of the Alexander Archipelago and the waters between such groups of islands and the mainland” (emphasis added), apart, more generally (in (b)), from three miles from “lines extending from headland to headland across all bays, inlets, straits, passes, sounds and entrances”. In US v. Alaska (1996) the Special Master, while pointing out that the court in the Cook Inlet case (1975) had “not mentioned” the denition of this phrase (Report, 1996, at pp. 119/120), nonetheless drew attention to a letter of 1962 from the Secretary of the Interior, Mr Udall to Dean Rusk, stating that these 1950s regulations “dened shing districts for management purposes only and were not intended to enlarge or extend the territorial waters of Alaska in a legal or jurisdictional sense” (id., at pp. 118/9) (emphasis added) (from US Ex. 85–303). The Special Master appeared to agree with this interpretation when he there concluded (id., at p. 120 (emphasis added)) that he could give “no weight” to an earlier State Department statement that the “regulation dening ‘waters of Alaska’ was the adoption of a baseline for the territorial sea”. On this ‘administrative’ interpretation – as now seemingly supported in US caselaw – one might compare other instances of straight US lines which have been found to have no signcance as legal baselines: for example, census boundaries and bird sanctuaries illustrated by such lines. See, for example, Special Master Armstrong’s statements in US v. Louisiana (Report, July 1974, at pp. 11/12) (the purpose of the (nature sanctuary) lines was merely to “establish a limit within which bird life [would] be protected”). Furthermore, past ofcial US statements evidenced only vague conrmation of any shery enforcement within all the waters of the Alexander Archipelago. As seen above, Alaska implied in its Brief that it had purported to exercise shery jurisdiction outside the 3-mile limit in the Archipelago (e.g., by reliance on the ‘Pearcy charts’). However, there was, as seen above, no clear indication of enforcement in documents cited outside existing US territorial sea or shery zone limits. Indeed archival material from the 1930s (1934 in fact) indicates that there was a deliberate US policy, operated through the Bureau of Fisheries, not to prevent shing by Canadian vessels north of the ‘AB line’ (i.e., above the Dixon Entrance) in waters within the Archipelago which lay outside the 3-mile limit (US Archive Refs: 09230, 09235, 09237, 09239). Cf. Governor Egan’s comment (US Archive Ref. 02018) 9/14/1971) about the ‘Coastline Committee’ actions, to the effect that prior to 1971 the Coast Guard had used a “liberal method” to determine the extent of US waters, namely all waters inside the Archipelago being considered inland waters with “territorial jurisdiction being measured seaward from the outer islands”. See Report, at pp. 119/20.

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unsettled . . . Although the 1972 Congressional hearings contain general statements to the effect that the [US] did enforce its shing regulations against foreign vessels, these statements do not identify any specic enforcements actions occurring more than three miles from shore. In 1934, moreover, the Department of Commerce took the position that Canadian shermen had the right to sh within the Archipelago so long as they remained more than three miles from shore”.

The Marguerite incident In his Report in Alaska v. US (2005),181 the Special Master made special reference to the abovementioned Marguerite incident concerning a Canadian vessel seized by the US Coast Guard for shing (or attempting to sh) in the Archipelago’s waters, as the “only specic example” Alaska could cite as evidence that the relevant shery legislation (the Alien Fishing Act) had been enforced against foreign nationals in waters within the Archipelago more than 3 miles from shore. In this incident, after being ned, the master of the vessel had asked Britain to protest, as he alleged that he was shing more than 5 miles from land. As the Special Master concluded, the “record does not establish with clarity where the Coast Guard seized the Marguerite”.182 Having reviewed the conicting evidence on the location, the Special Master concluded183 that it was unclear whether in fact the vessel had been arrested in waters more than 3 miles from shore; so that the incident could have no effect in the way of establishing historic waters. 4.3.3 Enforcement of shery regulations under bilateral or multilateral treaty rights An additional point of ambiguity enters in respect of enforcement of shery regulations simpliciter by the coastal State – even against foreign nations. This is because in some circumstances international law specically allows shery enforcement even against non-nationals outside the territorial sea.184 Thus, for example, the US protest to the USSR (on 6 March, 1958), regarding the latter’s claim to Peter the Great Bay, pointed out that “shing agreements between the [USSR] and Japan [were not] sufcient to establish the degree of acceptance on the part of the rest of the world” to justify a claim 181 182

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Id., at p. 66. Id., at p. 67. The Canadian vessel Marguerite was (allegedly) seized ve and a half miles from the nearest US shoreline north of the ‘AB’ line (see US Archive Refs. 00965, 01024). Id., at p. 68. Apart from such lack of evidence of shery enforcement against foreign vessels in all parts of the waters of the Archipelago, there was also, at the time, evidence to suggest that a blind ofcial eye was turned to Canadian shing in such parts (see above n. 179), at least outside 3-mile limits. The only possible evidence to the contrary seems to be in a British diplomatic note in 1925 (US Archive Ref. of 3/2/1925 (00939)) requesting information on an alleged seizure of Canadian shing vessels in the Clarence Strait, seven miles offshore. G.H. Hackworth, Digest of International Law (1940), (vol. I, at p. 799) implies that prior to 1918 there may have been some US assertion of jurisdiction over Canadian shing vessels transiting the Archipelago. See, e.g., the Boggs Memorandum on the ‘AB’ line (3/8/1940, US Archive Ref. 09757) where he stressed – in relation to the ‘AB’ line – the US interest relating to freedom of shing on the high seas outside the 3-mile limit except “where there is international agreement in the matter”.

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to “internal waters” as an historic bay.185 As such, this seems to indicate that an intergovernmental agreement analagous to a high seas shery conservation treaty, does not have implications for historic title. This point was well expressed by the Supreme Court in the Cook Inlet case where, in stating that coastal States often assert their sheries jurisdiction beyond even their territorial seas, it cited a 1945 treaty and Article 6 of the 1958 Convention on Fishing and Conservation of Living Resources on the High Seas.186 Thus shery enforcement 185

186

Cited by Whiteman, op. cit., vol. 4, 256, at p. 257 (emphasis added). See also the Japanese protest to the USSR over its Peter the Great Bay claim in 1958 relating to a previous 1907 shery treaty and a bilateral Protocol to this 1907 shery convention – which allegedly made clear that Japanese shing was only prohibited in Russian “territorial waters”; and this, therefore, was “not applicable in the high seas portion of the said bay” (cited in Whiteman, op. cit., vol. 4, at pp. 253/4 (emphasis added)). 422 US 184, at p. 199: see US Presidential Proclamation No. 2668, 59 Stat. 885 (1945). The 1958 multilateral treaty was also cited by Alaska in Alaska v. US (2005). See Alaska’s Exceptions (to the Report of the Special Master on Motions for Summary Judgment, Motion for Leave to File), Sur-Reply and Sur-Reply Brief, at pp. 14/5 (“At statehood, international law barred discriminatory sheries enforcement against foreigners outside the territorial sea”). In the Cook Inlet case (1975), the Supreme Court found that shery enforcement behind the so-called ‘Gharett-Scudder line’ – relied on by the District Court – revealed that the “geographic scope of the sh and wildlife efforts was determined primarily by the needs of effective management of the sh and game population involved” (422 US 184, at p. 199); and thus was seemingly analogous to a high seas conservation treaty regime. The Court emphasised – in discussing the background to this ‘line’ (id., at pp. 194/5) – that it was a joint Canada/US initiative aimed at “prohibiting citizens from the two countries from shing with nets in international waters in the North Pacic”, albeit it being agreed to use a US line under its legislation for this purpose, with, at Canadian request, the ‘Gharrett-Scudder line’ being drawn specially to give the US limits greater precision relating to closing lines. (See also the FWS memorandum of 3/6/1957 on regulation of offshore salmon netting by US vessels in the North Pacic, where Canadian representatives raised a query about the area in which salmon net shing was permitted in Alaskan waters and requested a chart showing these limits (the ‘Gharrett-Scudder’ line) (US Archive Refs: 08775, 08776, 08778); and Alaska Ex. 8, at p. 32e in Alaska v. US (2005)). In the Cook Inlet case, the Supreme Court characterised this line as being “almost solely” made with reference to “coastal salmon net sheries”, and being “never intended to depict the territorial waters of the [US]” (id., at p. 195). Also it was accompanied by an “express” disclaimer to the Canadian delegates as to having any formal bearing on US territorial waters limits (id., at p. 196). The latter is conrmed in US archive references (FWS memorandum of 8/27/1957 (Ref. 08864)) (the lines were drawn “solely for the purpose of shery management” and the “baselines” thereof bear no relationship to that for delimiting US “territorial waters”). The same points are made in a FWS memorandum of 11 June, 1957 (US Archive Ref. 08852). In US v. Alaska (1996), the Special Master considered again the legal effect of the ‘line’ in the context of Arctic waters; and, having cited extensively from the Supreme Court in the Cook Inlet case, he similarly concluded that the Court’s analysis was “controlling” there; and that if “shery regulations did not amount to an inland-water claim for Cook Inlet, neither did they make such a claim along the Arctic coast” (Report, 1996, at p. 121). It appears that the International Halibut Convention allowed Canadians to sh in US territorial waters, but not inland waters – hence

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even against foreign State party vessels may be permitted beyond the territorial seas in the case of past high seas shery treaties, both bilateral or multilateral, without affecting the status of the waters concerned. In the mid-1930s, for example, there is archival evidence that Canadian vessels were allowed to operate for a number of miles up the Clarence Strait, and other waters north of the ‘AB line’ in the Alexander Archipelago so long as they remained outside the three-mile limit in “high sea” areas.187 4.3.3.1 Mere control of shing per se was seemingly conrmed as in any event being insufcient in Alaska v. US (2005) to create internal historic waters In the US pleadings in Alaska v. US (2005), it was argued188 that Alaska’s reference to the UN Juridical Regime to prove shery control could be valid evidence of historic inland waters status, was not right, as this study “merely indicate[d] that a nation’s continuous assertion of exclusive shery rights might give rise to an historic sheries claim, not an historic inland waters claim”. In his Report in the case,189 the Special Master referred to the Alaskan argument to the contrary, namely that “if the [US] asserted

187 188

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it is not clear if Canadians were allowed nonetheless to sh in the Alexander Archipelago (see US Archive Ref. 00902–03). The ‘Yingling memorandum’ of 5/16/1962 (see US Archive Ref. 00904)) mentioned that Canadians (allegedly) had been “shing [in Alexander Archipelago waters] near one of the small islands there”, despite the provisions of the US Canada Halibut Convention seemingly banning same. Yingling suggested that if they considered that they had a treaty right to do so, they should take it up with the Canadian Government. Alaska – as referred to in the ‘McKernan Memorandum’ of 1972 – submitted at the Juneau Hearings a letter from the latter relevant international shing organisation in the area of the Alexander Archipelago – the International Pacic Halibut Commission – which noted that apart from one report in the Chatham Strait in 1934, there had been an absence of Canadian halibut shing in the waters of the Archipelago “except in two statistical sectors which were well off shore”. The equivocality of such evidence is obvious; and the ‘McKernan Memorandum’ rightly points out that the Halibut Commission did not indicate whether all reported shing in these latter sectors was in fact “offshore” ((US Archive Refs 00077/0092–03; Alaska Ex. 8, at p. 32e)), i.e., if they were outside any 3-mile limits. See the letters between the US Secretary of Commerce and the Secretary of State (9/5/34 (US Archive Ref. 00077) and 9/13/34 (Ref. 00079)). In 1935 statistics of Canadian halibut shing north of the ‘AB’ line were forwarded (see Letter of the Secretary of Commerce to the Secretary of State (1/17/1935 (id., Ref. 00123)). Relating more generally to Canadian shing rights in the Archipelago, see also the 1944 memorandum of Hackworth to Hickerson (US Archive Ref. 00489) where Hackworth seemed quite oblivious to any possible historic claim in the waters of the Archipelago and stated that, having looked at a map to which Boggs referred, he gained the impression that “there may be waters in the Clarence Strait . . . which are outside the ordinary territorial limits”; and so this “would entitle Canadian nationals to enter those waters for shing and other purposes” (see Alaska Ex. 8, at p. 32e in Alaska v. US (2005) (emphasis added)). See above n. 183. See US Reply Brief to Exceptions, p. 18, n. 11. Alaska alleged that US quotation of the UN study was mistaken in stating that a claim to waters based on exclusive shing would not be a claim to “historic waters”. Report, at p. 119.

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the right to enforce shery regulations against foreign vessels in locations more than three miles from shore [in the Alexander Archipelago], those locations must have been recognised as inland waters”, adding that: “[Alaska] apparently reasons that the waters more than three miles from shore must have been considered inland waters because the [US] may not enforce shing regulations against foreigners on the high seas”. The Special Master concluded seemingly in favour of the US argument when (after discussion over whether the US had exercised jurisdiction over foreign shing vessels outside the 3-mile limit in the Alexander Archipelago) he stated:190 In any event, the factual question of whether the [US] enforced its shing regulations more than 3 miles from shore is ultimately immaterial. Historic inland water status must arise from ‘an assertion of power to exclude all foreign vessels and navigation’ [citing Cook Inlet] . . . The shing regulations cited by Alaska controlled shing but did not purport to exclude all foreign vessels. Therefore, enforcement of shing regulations in the pockets and enclaves, even if it actually occurred, would not directly show that the [US] asserted that these waters were inland waters.

In respect of purported shery jurisdiction, therefore, the Special Master seems to have downgraded the importance of exercise of shery control per se, as he also referred to the Supreme Court (in the Cook Inlet case) as having “rejected the idea that the [US] can regulate shing only to the limit of the territorial sea”, insofar as “assertion of national jurisdiction over coastal waters for purposes of sheries management frequently differs in geographic extent from the boundaries claimed as inland or even territorial waters” (citing a US proclamation from 1945 asserting power to establish “shing conservation zones” within the “high seas”). So that, as the Special Master concluded:191 “even if Alaska could prove the factual premise of its argument – that the [US] enforced shing regulations in the pockets and enclaves at issue – this proof would not lead to the conclusion that the [US] regarded the waters of the Archipelago as inland waters or territorial sea”. This conclusion is also evident from the stress of the Supreme Court judgment in the case referring to the Cook Inlet dictum regarding exclusion of “all foreign vessels and navigation”. Citing the case, the Supreme Court opined192 that evidence of an assertion to exclude innocent passage and not some lesser right must be provided to support an historic inland waters claim. 4.3.4 Fishery enforcement may only be a complementary factor to evidence an historic internal waters claim In the light of this most recent US caselaw authority, it would seem that evidence of shery control in claimed historic waters – where these ‘control’ areas are near to the coast at least (as in the case of the Alexander Archipelago) – may at most nowadays only be viewed as subsidiary conrmatory evidence of historic internal waters status; as the crucial issue still relates to control of navigation as such. This point had, as seen, already been made by the Supreme Court in the Cook Inlet case in 1975.193

190 191 192 193

Id., at p. 120 (emphasis added). Id., at pp. 120/1. 545 US 75, at pp. 81, 82. See, for example the Court’s reference to excluding (for claim to historic inland waters) “all

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5. Irrelevant Forms of Jurisdictional Exercise to any Historic Claim 5.1 Alleged irrelevant acts of jurisdiction in Tunisia /Libya In Tunisia/Libya, the Tunisian Memorial had alleged diverse forms of exercise of Tunisian sovereignty194 and detailed the alleged vigilant and effective application of Tunisia’s legislation relative to the claimed historic zones: for example, boats of several nationalities having been the subject of arrest. This led to a riposte from Libya over alleged lack of commensurate jurisdiction to the alleged claim.195 The Libyan CounterMemorial argued in fact that one aspect of Tunisian practice – the “surveillance and control” of shing activity by Tunisian ships was “entirely consistent with a contiguous shery zone” and had no implications for a claim of sovereignty. 196 Libya also argued more generally197 that “the required exercise of [continuous and active] control [over a long period of time] must encompass all interests of a State in the regulation of its internal waters, citing law enforcement, prohibition or regulation of foreign vessels and navigation, resource management and security considerations. And in particular Libya alleged that “there [was] no evidence that Tunisia excluded foreign vessels from the exercise of innocent passage in the ‘Gulf’ ”, Tunisia having conceded it was “frequented by vessels of many nations”.198 5.2

Fiscal jurisdiction

As already seen,199 a claim to scal jurisdiction – even outside the territorial sea – will not speak unequivocally of an inland waters claim, because of the contiguous zone

194 195

196 197 198 199

foreign vessels and navigation” and manifesting “an assertion of sovereignty to exclude foreign vessels altogether” (422 US 184 at pp. 197 and 201 (emphasis added)) respectively, even though all the incidents there discussed concerned shing activities or shing vessels; also US v. California respecting state evidence of limited shery jurisdiction (Report of Special Master, 1952, at p. 35). Thus past statements in other US cases such as Civil Aeronautics Board v. Island Airlines (253 F. Supp. 990, at pp. 1004/5 (emphasis added), and in Whiteman, (op. cit., vol. 4 at p. 249) – to the effect that “keeping foreign ships or foreign shermen away from the area, or taking action against them” may evidence historic title – must now be read in the context of the ruling in the Cook Inlet case on the sheries issue. Ironically, one past commentator has perversely viewed the US as having “controlled” the waters of the Archipelago by “permitting shing activities” there: W.B. Blue to Senator Stevens in 1972 (loc. cit., supra, n. 62, at p. 188). He adds to his paradoxical ‘list’ of ‘controlling’ measures the use by freight and passenger vessels of the waters; in the latter case “providing navigation aids, charts, dredging and permitting the right of innocent passage to foreign vessels” (emphasis added). Pleadings, vol. 1, at p. 103, para. 4.83; and id., at p. 407, para. 4.95. See, e.g., the Reply of Libya, (Pleadings, vol. 4, at p. 115, para. 33) (Tunisia had to show exclusive shing in the Gulf; and the only evidence was of “limited Tunisian claim to surveillance and control over the xed and sedentary sheries (the sponge sheries)”, allegedly not adequate for a claim to internal waters). Pleadings, vol. 2, at p. 195, para. 121. See Reply of Libya, Pleadings, vol. 4, at p. 114, para. 31 (emphasis added). Id., at p. 114, para. 31. See section 3.2 above.

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concept extending further seawards.200 However, in its judgment in the El Salvador/ Honduras case, the ICJ did seem to give this type of jursidiction some weight when it referred to all three Gulf States recognising there, in a unique historic waters setting, “a further belt of 3 marine leagues (9 nautical miles) for rights of ‘maritime inspection’ for scal purposes and national security”.201 The Alaskan reference in Alaska v. US (2005)202 to the effect that Britain also recognised in the 1825 Treaty “the necessary control [by Russia, and then, by succession, the US] for scal and other administrative purposes, of the passage of British vessels through the interior seas and straits” of the Alexander Archipelago, is entirely consistent with a ‘contiguous zone’ type of jurisdiction being recognised there. Thus even if, as seen, Russian enforcement actions had taken place outside 3-mile limits in the Alexander Archipelago’s waters, they could be explicable historically in terms of the more general scal jurisdiction allowable in international law; and even if Russia did not have such statutory jurisdiction at the time, US practice, which similarly did not have statutory rules on this matter in the early 19th century, nonetheless claimed such limited jurisdiction beyond the 3-mile limit.203 It may be noted that all the waters contained in the Archipelago are within 12 miles of landfall and hence would all have been potentially subject to such past US (and even Russian) jurisdictional claims.204 200

201

202 203

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This type of jurisdiction would include, for example, in the US context, the attempts by federal agencies to draw maritime limits for their own specic scal purposes in the 1940s (in respect of the abortive charts of the US Tariff Commission as part of an investigation of foreign shing off US coasts for import tax purposes, US geographer, Boggs, advised arcs of circles off the Alaskan coast (see US Archive Ref. hw 01406 and Boggs, loc. cit., supra, 1951, at p. 247, n. 19). Similarly, the evidence at the Juneau Hearings((at p. 18) of the existence of pockets of contiguous zone jurisdiction in the Archipelago (for customs, scal immigration and sanitary regulation purposes) would be irrelevant for evidencing inland waters claims. Also irrelevant would be the similar Census Bureau project (mentioned in the Special Master’s Report in US v. Alaska, 1996, at p. 82, n. 38); but cf. the older position regarding the US claim to Delaware Bay in 1793 (where a customs district was cited by Attorney General Randolph as evidence of “exclusive” US jurisdiction (1 Opinions of the Attorney General, 32, 37 (1793)). In modern times, Special Master Hoffmann seems (perversely) to have taken a federal “customs enforcement system” into account in US v. Maine to nd Vineyard Sound to be historic waters: Report, at pp. 62, 63. Supra, p. 2, at p. 243. See also Moore (op. cit., vol. I, at p. 664) (“a prohibition to. . . engage in coastal trade” is not a violation of the “right of free navigation”). See also, e.g., Ngantcha, op. cit., at p. 164, who includes “scal” considerations here; and Judge Oda’s Dissenting Opinion in the El Salvador/Honduras (supra, p. 2, at p. 757, para. 45). In its Responses to Interrogatories, at p. 3, citing Proceedings, vol. III, at p. 40. Jessup conrmed that Russia had, from at least 1909 claimed a twelve-mile customs zone on the theory that international law does not prevent a state from thus extending the limits of her “territorial waters”, including from “islands” as constituting a “marine customs area” (op. cit., at p. 86/7) (Law of December 10/23, 1909). See also CAB v. Island Airliness 235 F Supp., 990, at p. 1005 (Hawaii District Court). British records show Russian exercise elsewhere of jurisdiction beyond 3 miles in the 19th century. In fact both these types of jurisdictional competence – very similar to what the Russians were purporting to claim after the ‘ukase’ decree – were conrmed for the US in the leading case of Manchester v. Massachusetts in 1891 (139 US 240, at p. 247). See, e.g.,

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In any event, passage for the purpose of violating a coastal State’s customs laws is not innocent;205 and so may be interfered with without any legal implications as to an internal waters regime. Art. 19(2)(g) of the LOSC now expressly says that passage of a foreign ship shall be considered to be prejudicial to the peace good order or security of the coastal State if it engages in “the loading or unloading of any commodity . . . contrary to the customs laws and regulations of the coastal State” in the territorial sea; and indeed Art. 21(1)(h) of the LOSC 1982 allows a coastal State to adopt laws and regulations “relating to innocent passage” in regard to “the prevention of infringement of customs . . . regulations” of that State. Thus in the relevant times of the 19th century Russia could have been justied in interfering with US vessels breaching its scal regulations up to 12 miles from its coastline in the Archipelago, with potential violators also being considered to be not engaged in innocent passage if in the territorial sea. 5.3

Seabed exploitation/ leases

In an intertemporal sense, sedentary species of living organisms (as dened in Art. 77(4) of the LOSC) are now subsumed under rights for the coastal State under the

205

the incident over the British vessel Lord Charles Spencer in 1837 (a detention by Russians of British ships 8 miles from the Russian coast – this distance is conrmed in Law Ofcers’ Opinions, vol. 97, at p. 547 (opinion of August 22, 1836)). See also Law Ofcers Opinions in vol. 62, p. 371 (Reports of August 22, 1836 and October 20, 1826). Jessup (op. cit., at p. 29) cites the 1909 Russian customs law – which met with resistance from Britain and Japan – extending 12 miles from all the coasts of the Russian empire and as being expressly applicable to foreign vessels. Britain (hypocritically) objected to the alleged exaggerated maritime jurisdiction of Russia and demanded compensation for British ships if detained more than 3 miles from shore (see Law Ofcers’ Opinions, vol. 97, 547 at p. 548); but legal authorities cited mentioned rights of visitation and search of foreign vessels more than 3 miles from shore (139 US 240, 257) (“in time of war or for the prevention of frauds on its revenue” (particularly liquor smuggling)). This previously dated from the early 19th century and in distances up to at least 4 leagues from shore (Church v. Hubbart 2 Cranch 187). The US jurisdictional claims were put into statutory form in the 20th century (e.g., in the Tariff Act, 1922; Anti-Smuggling Act, 1935 (hovering vessels within 100 miles): see Swartztauber, op. cit., at p. 144). Foster seems in his commentary on the Alaskan coastline to have emphasised this scal aspect when he says “. . . revenue vessels of the [US] have continuously [since 1867] patrolled the interior waters surrounded by the strip [lisière] to enforce the revenue and other laws of the [US]” (supra, n. 123 at p. 453 (emphasis added)). The state of Alaska may have tried to continue in this role in more recent times. At the Juneau Hearings, for example, evidence was adduced that Alaska had claimed ‘prohibition jurisdiction’ beyond the 3 mile limit (under the Prohibition Act) in the claimed sea areas (supra, n. 200, at p. 3). It should be noted that under the SLA, US state territorial seas have been ‘fossilised’ at 3 miles. Cf. on permanently xed 3-mile limits, the El Salvador/Honduras case (supra, p. 2, at pp. 607/8, para. 418) where the ICJ said that the “exclusive littoral maritime belts within the Gulf [of Fonseca] [had] remained limited to three miles in breadth” (emphasis added); and (id., at p. 608) to “hold that there could now be territorial seas within the Gulf would be incompatible with the Gulf’s waters being waters of an historic bay”. See F. Ngantcha, The Right of Innocent Passage and the Evolution of the Law of the Sea (1990), at pp. 44, 164, 173–4.

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continental shelf regime outside the territorial sea. Thus, for example, it was alleged in the Libyan pleadings in Tunisia/Libya206 that it was “clear that the Tunisian claim to sovereignty [in the Gulf of Gabes could not] rest on mere evidence of historic rights to sedentary sheries” to show there was a claim to the areas as internal waters or territorial waters, especially as the sheries were not “exclusive”.207 Thus, in theory, shellsh shery leases (such as concerning oysters, a sedentary species (of sh) under the LOSC and so within the coastal States’ sovereign rights to harvest under the continental shelf regime in more modern times) should not point unequivocally to an internal waters regime, even if granted outside a territorial sea limit.208 However, in a few older instances, such as in the case of Australian historic claims to Shark Bay, an Act of 1886 to control pearl shing in the bay seems to have (historically) formed the gist of the claim.209 Indeed, in the more distant past historic claims have been made on the basis of long-established historic sea-bottom shing, as in the case of the French historic claim to the Bay of Cancale, based largely on the exploitation of oyster sheries over a long period of time; and the Indian case of Pillai v. Muthupayal relating to chank and pearl sheries.210 The same principle should apply to exploitation or leases relating to non-living resources, as featured in US v. Louisiana,211 where there was in any event found to be no evidence that any of these leases extended “more than three miles from the low-water line of the shore”, and therefore they, too, were entirely consistent with the character of the waters covering the leased areas as territorial seas. Thus even if the seabed area leased is beyond the territorial sea, i.e., in the continental shelf area, the situation would appear to be the same, at least if such a lease was granted in more modern times. In the abovementioned US case, for example, the mineral leases were issued after the [US] claimed resources of the entire continental shelf, and therefore could not put any nation on notice that “an historic inland waters claim was being made”.212 5.4

Pollution control

This type of control may, again, may relate simply to the territorial sea, as US caselaw evidences.213

206 207 208

209 210 211 212

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Libya’s Counter-Memorial, Pleadings, vol. 2 at p. 189, para. 107. Id., at para. 108. See above the Special Master’s Report (July 1974, at p. 19) in US v. Louisiana (where in fact Special Master Armstrong noted that the leases only “covered areas . . . within three miles of the shoreline”). See Edeson supra, n. 164, at p. 301. 27 ILR 551 (Madras) (1903). Report, July 1974, at pp. 19–21. Id., at p. 20. This was repeated by Special Master Maris in US v. Florida (oil leases were no evidence of “a use adverse to foreign nations in view of the accepted view in recent years that maritime nations have special rights in the bed of the continental shelf off their coasts”); Report of January 1974, at p. 46. See the Special Master Reports in the Louisiana case (Report of 1974, at 21) (“[a]ny acts of the State of Louisiana in connection with pollution control in waters off its shoreline were

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5.5 Wildlife regulations Likewise, enforcement of wildlife regulations may be insufcient to evidence historic title. In the Cook Inlet case it was so held case by the Supreme Court (although it had been jurisdictionally relied upon by the District Court); as this activity was “patently insufcient to establish historic title to Cook Inlet as inland waters”.214 Again, as in the case of sheries, such zones may only cover territorial seas distances anyway: see the opinion of Special Master Armstrong in US v. Louisiana215 (only the islands and “their surrounding territorial seas” were intended to be included in the proclamations)

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entirely consistent with the character of those waters as territorial sea. . . .”), and in the US v. California case (Report of 1952, at p. 38) (where the alleged state enforcement of environmental regulations beyond three miles was found not to support an inland waters claim). 422 US 184, at p. 196. Report of July 1974, at p. 21.

Chapter 14

KNOWLEDGE OF, AND ACQUIESCENCE TO, HISTORIC CLAIMS 1. The Importance of: Knowledge on the Part of other States Without knowledge of an historic claim there can be no true acquiescence. Other States must, obviously, be in a position either to object to or to accept, through knowledge or presumed knowledge, an alleged historic claim. As Bouchez says, they “must be in a position to raise objections” if they wish.1 This factor had particular application to the Alexander Archipelago waters ‘claim’ as alleged in Alaska v. US (2005), not so much because the originally-alleged 1903 ‘claim’ was based on (possibly) non-exceptional grounds,2 but more simply because there was arguably no proper publicised US ‘claim’

1 2

Op. cit., at p. 265. See above, p. 53. The silence of the rest of the world on the alleged ‘claim’ in the case of the waters of the Archipelago was thus no evidence of acquiescence, particularly because there was no adequate publicity of the ‘claim’ and so no knowledge of it by parties outside the US/ GB proceedings in the 1903 ABT case; and certainly no knowledge of any historic claim as such (i.e., one based initially on dubious legality) to which they needed to respond. Of course, in appropriate circumstances, mere silence on the part of States may imply acquiescence: cf., for example, the Juneau Hearings (15 May, 1972 at p. 8) regarding acquiescence in the US/Alaska context, where Mr Nelson stated that he “suppose[d] silence of the part of foreign nations could constitute acquiescence”.

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in the rst place to put other nations on such notice that would call for positive action signifying objection (or even approval). As was said in the Alabama and Mississippi Boundary case, it is only “when foreign governments do know, or have reason to know, of the [claim] over an area, [that] inaction or toleration on the part of the foreign governments is sufcient to permit a historic title to arise”.3 Conversely, in the Cook Inlet case4 it was stated that “in the absence of any awareness on the part of foreign governments of a claimed territorial sovereignty . . ., the failure of those governments to protest is inadequate proof of the acquiescence essential to historic title”. The latter citation was quoted by the Special Master in Alaska v. US (2005), where he held5 that “although the exhibits [in that case] [did] not show any protest by foreign nations [to the alleged inland waters regime in the Alexander Archipelago], this absence of protest prove[d] very little in the circumstances of [that] case”, as foreign nations “had little basis for knowing that the [US] was claiming the power to exclude foreign vessels”. The Supreme Court also thought, like the Special Master, that the ability of “one foreign nation to discover” (i.e., Norway in the Fisheries case)6 the US’ argument when litigating a related issue in 1903 did not mean that “foreign nations should have known of the US position”, because this “reasoning carrie[d] particular force in the light of the precedent a contrary conclusion would create”.7 On occasion in US caselaw, however, a somewhat unrealistic assessment has been made of the knowledge requirement. For example, in the Massachusetts Boundary case, the Special Master, in nding “acquiescence in the presumed knowledge of foreign States followed by a failure to protest”, referred to the individual litigating states’ allegation that by the outbreak of World War I, the major foreign powers, all of whose foreign ministries had legal departments charged with “monitoring and analysing” legal developments, had de facto knowledge of relevant US domestic caselaw “and its contents”.8 In that case, the Special Master appears, however, only partially to have

3

4 5

6 7

8

470 US 93, at pp. 100–111 (1969) (citing the UN Juridical Regime at pp. 48/9 and the Fisheries case, at pp. 138/9). 422 US at p. 200. Report, at p. 132. See also id., at p. 79 regarding the US-Canada ‘A–B line’ negotiations, in the case of which the Special Master concluded that whatever the ofcials working on drafts may have agreed, their views did not “necessarily reect the position of their governments” and that foreign nations “may not have known their views”. See below section 2.1.1.1. 545 US 75, at p. 90. The Court also stated that “[i]f [the Supreme Court] were to recognise historic inland waters claims based on arguments made by counsel during litigation about maritime boundaries”, the US (as stated in the US Reply Brief ) “would itself become vulnerable to similarly held claims by other nations which would restrict the freedom of the seas”; and the Court was reluctant to create a precedent to this effect. Report of October 1984, at p. 60. A fortiori one might add that, as in the Alaska v. US (2005) case, even in international litigation, a somewhat obscure US argument in voluminous argument before an arbitral tribunal and published in a not easily obtainable source (a vast compendium put together in 1904 by the US Senate entitled “Proceedings of the Alaskan Boundary

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accepted this dubious contention; i.e., only in the sense that there was other domestic evidence pointing in this direction, including the text of a 1881 Massachusetts statute (and the fact that “the Supreme Court had upheld the Massachusetts statute as valid under both national and international law”; and that Massachusetts had “maintained charts showing claims in ofcial repositories”).9 Any obfuscation of an alleged claim obviously tends to eliminate any realistic opportunity for foreign States to make any protest before, as it were, the ‘claim’ becomes a domestic ‘fait accompli’; and at the very least, any supposed international legal requirement of prior notice of an historic claim being given to foreign governments is glossed over.10 This may be contrasted with, in the US domestic context, the situation arising out of The People v. Stralla11 regarding the waters of Santa Monica Bay, later cited by California in US v. California as evidence of an historic claim, where the Special Master did not accept this domestic precedent, preferring instead to take “the position which the [US] had then taken and now takes in [US] international relations”.12 States may, in fact, have good reasons not to publicise a possible historical claim. For example, for domestic reasons, a federal State such as the US may be anxious to keep any possible historic waters claim by an individual state of the Union suppressed. Thus, as seen, somewhat perversely, it may be an individual US state’s action in a domestic litigation context which forces the US federal Government to show its ‘international’ hand one way or the other as to an alleged historic claim.13 The recency of any alleged historic claim might, of course, also affect the matter of knowledge. For example, in Tunisia/Libya, it was alleged by Libya that since the Tunisian claim to the Gulf of Gabes was “so recent”, the issue of acquiescence did not arise.14 This ‘knowledge’ factor in turn tends to inter-relate with the factor of effectiveness of enforcement of relevant jurisdiction (see below).15 1.1 Other States’ knowledge of available evidence contrary to an alleged historic claim Additionally, there is, on the other side of the coin, the issue of the relevance of the availability of evidence against an historic claim which may not have received adequate publicity. In Alaska v. US (2005), the Supreme Court in discussing the

9

10 11 12 13

14 15

Tribunal”, Document No. 162, 58th Cong., 2d Sess.), running to hundreds of pages, does not adequately put other nations on notice. See above Chapter 11, section 1.1.1. Id., at p. 60. He was referring to the case of Manchester v. Massachusetts. Cf. US v. Maine (Report, 1984, at p. 63), where the Special Master indicated that both France and Britain knew of the US claim to Vineyard Sound due to US internal legislation. See above Chapter 11. 96 P. 2d. 941 (Sup. Ct. of California, 1939). Report of October 14, 1952, at p. 34 (emphasis added). See above Chapter 10, at p. 124. As, for example, a federal witness pointed out at the Juneau Hearings, the Cook Inlet litigation “presented a situation in which the Federal position had to be stated clearly and publicly, something which [the US] had in fact avoided before”. Reply of Libya, Pleadings, vol. 4, at pp. 117–8, para. 38. Section 2.4.

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so-called ‘Bayard letter’,16 for example, admitted that it might be “true that no foreign nation ever became aware” of the letter, though “subsequent publication . . . in the [US] Digest of International Law gives us reason to believe the contrary”. In that case this letter provided “strong evidence” that the US, as of 1886, did not claim a right to exclude all foreign vessels from the Alexander Archipelago waters. Accordingly, the Supreme Court found it unnecessary to parse the letter to see whether it announced to “any foreign nation that the [US] had abandoned a claim to the [waters of ] the Archipelago”, as there was “no proof that the [US] as of 1886 had made any such claim in the rst place”.17 1.2 The requisite type of knowledge The requisite kind of knowledge required by international law to prove acquiescence is one of the many legal uncertainties surrounding historic title to waters. Blum nds “constructive knowledge” to be adequate, but cites here a relevant past US attitude, namely US Secretary of State, Mr Seward, in his Note of 1863 to Spain.18 As seen above, it appears (controversially) from one isolated US case – the Alabama and Mississippi Boundary case – that even a statement in a federal brief (in domestic litigation) has been held to put foreign nations on notice of a historic claim (even though the statement per se had no binding effect in the case in which it was led).19 The Cook Inlet case also implies that something less than actual knowledge may sufce, i.e., whether other States reasonably ought to have known.20 1.2.1 Full knowledge of the claim may be necessary On the question of what is relevant ‘acquiescence’, full knowledge of the facts of the historic claim may be required. As Bouchez opines,21 the “indifference of States directly concerned [with a] claim can be interpreted as acquiescence provided that the silent State was aware of the nature and extent of the claimed rights”. This viewpoint accordingly points up the importance of the extent to which foreign States know the details about the alleged historic claim, including whether it constitutes an ‘exceptional’ claim (see above), and particularly its geographical extent.22 Indeed, it is arguable that until the publication of relevant charts, there is no clear geographical situation for other

16

17 18

19

20

21 22

See above pp. 131/2. Note the converse situation allegation in Alaska’s Exceptions in Alaska v. US (2005) (at pp. 31, 32) that the Bayard letter “did not announce to any foreign nation that the US had abandoned a claim to the Archipelago”. 545 US 75, at p. 88. Op. cit., at pp. 142 et seq. and at p. 144 et seq., citing the Fisheries case, supra, p. 2, at p. 139. He concludes (id., at p. 150) that States will have imputed knowledge of each other’s legislative activities. See above p. 119, n. 7 and p. 120. Such a viewpoint tends to telescope, or even ignore, other traditional international legal requirements, such as proof of effective exercise of jurisdiction. See US v. Alaska (1996) 422 US 184, at p. 200 (relating to claimed historic title to Cook Inlet) and above, Chapter 11, p. 149. Many authorities agree that presumed or implied knowledge may be sufcient to underpin acquiescence. Op. cit., at p. 273 (emphasis added). See above, Chapter 10, pp. 132–4.

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States to take cognisance of.23 As Special Master Hoffmann observed in US v. Maine,24 “[t]he primary function of the charts is to put all interested parties, including foreign countries, on notice of the most current boundary claims”. Consequent on this, any lack of clarity as to the nature or extent of the alleged historic claim may cause foreign States not to have properly acquiesced. Thus geographical or other inconsistencies in a published claim may affect the whole issue of foreign reactions. As was also alleged by Libya in the Tunisia /Libya case respecting Tunisian historic claims, Tunisian actions, such as the decree of 1951, a Law of 1963, and the laws and decree of 1973, regarding the Gulf of Gabes “reect[ed] substantial variations and uctuations in the size of the territorial sea, methods of establishing baselines, and designations of a reserved and contiguous shing zone”; so that for such reasons there could not be Libyan acquiescence.25 Acquiescence accordingly relates also to the requirement of consistency as to maintenance of an historic claim.26 It is largely for such reasons that the 1962 UN Juridical Regime raised the formal notication aspect – i.e., whether the doctrine of historic waters requires a coastal state “formally to notify each and all of the foreign States that it has assumed sovereignty” over a maritime area.27 1.2.1.1 Knowledge gained through litigation before an international tribunal may be adequate to x a nation with knowledge (and perhaps evidence approval) of another’s historic claim: the Behring Sea reference in the Fisheries case and the situation in Alaska v. US (2005) There was an interesting contention by Norway in the Fisheries case, in response to the British claim that it did not know of its early decree of 1869, that the UK should have known because, inter alia, it had been “cited” before the Tribunal in “Anglo-American litigation” relating to the Behring Sea in 1893 by the Norwegian Minister of State, Gram, a member of the arbitral panel, who had allegedly conrmed that the Norwegian fjords had always been interior waters; so that this was (allegedly) not “unknown” to the British Government;28 and that, furthermore, in the later North Atlantic Fisheries 23

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As in the case of Alaska v. US (2005) and the Baseline Charts of 1971 relating to the Alexander Archipelago. Report of October, 1984, at p. 15 (emphasis added). Reply of Libya, Pleadings, vol. 4, at p. 123, para. 55. See above Chapter 10, section 2.2.1. UN Juridical Regime, at p. 19, para. 128. For the reason stated in the text, it answers in the negative (i.e., that “public exercise of sovereignty over the area” is enough). See also the Fisheries case, supra, p. 2, at p. 139 (cited in UN Juridical Regime, p. 19). For an ofcial US viewpoint on this, see a 1973 US Memorandum (of Oxman) in Digest of US Practice, at p. 244/5, which states that ofcial US policy regarding acquiescence requires that the “coastal State’s acts of sovereignty must be known to foreign nations” to evidence the required degree of acceptance. Pleadings, Counter Memorial of 31/7/50, at p. 542. Strangely this very unusual incident of ‘national pleading’ from the Bench during an arbitration was referred to in respect of British argument in the 1903 ABT case by the President, to which the British counsel there admitted (not surprisingly) that he had never seen this reference! (Proceedings, Argument of Sir Robert Finlay, at p. 237).

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Arbitration, Britain had allegedly made use of this Norwegian declaration.29 However, the UK there rejected30 the Norwegian argument that it had had sufcient notice of a Norwegian general claim from mere participation in arbitral proceedings where it was raised in oral pleadings. It appears, though, uncertain to what extent knowledge of third-party maritime claims, incidentally made by a State during the course of pleading in past bilateral international litigation, can, in principle, affect third States (there being no clear suggestion by Norway in the 1951 litigation that even the alleged British knowledge gained through the arbitration in itself amounted to British acceptance of the Norwegian maritime claim). However, from the point of view of international acquiescence, there was no argument made in the Fisheries case that other States could be expected to know about the Norwegian claim from what transpired (even on the record) in such purely bilateral proceedings. However, notice (through pleadings) to one party in the same litigation of the other party’s claims might be different. Even in such a case, though, it is noteworthy that in Alaska v. US (2005), the Special Master found that he did not accept the Alaskan argument there that “Britain had endorsed the view that the [US] could exclude vessels from the [Archipelago] during the 1893 [Arbitration] and the 1910 Fisheries Arbitration”31 29

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Id., (Bourquin), 11/10/51 at p. 303. The argument that the Swedish/Norwegian conception of baselines, with special reference to parts of the Norwegian coast, had been referred to by the Norwegian member of the former tribunal and was relied on by Sir Robert Finlay in 1910 to support his Government’s thesis on bays, implied that Norway was also using this same matter as evidence of UK approval of its alleged baseline claim (allegedly (id., at p. 546) this was “conrmed” in the Tribunal’s judgment; see also id., at p. 365)). It was also alleged more generally by Norway that in the Behring Sea (Fur Seal) Arbitration in 1893, there was reference by counsel in argument to a Norwegian system of “straight baselines from point to point”. By way of contrast, no such specic British endorsement of, or reference to, any similar US ‘claim’ from the arbitration of 1903 (ABT ) was seemingly made relating to the Alexander Archipelago as inland waters in this 1910 Arbitration (constituting further evidence of lack of British knowledge of it). The UK argued in the Fisheries case that all anyone could be expected to learn “from this arbitration was that Norway claimed a number of wide bays” (contained (id.) in the Norwegian Counter Memorial, annexe 20). See Pleadings, Reply of Sir Eric Beckett on 19/10/51, at pp. 442/3. The UK at one stage seems to have accepted the allegation (see Reply (28/11/50, at pp. 602–3, para. 427) ; namely that the use by Norway of the Behring Sea (Fur Seal) Arbitration showed that in 1903 the UK was acquainted with a Norwegian decree of 1869 (but cf. Sir Frank Soskice’s denial in the case of the relevance of this Arbitration (29/9/51 at p. 140), alleging that that this represented “too articial an interpretation” of the UK’s views on closing lines). It follows from this that a sovereign State cannot be trapped into unwittingly accepting such a claim when it was not ofcially intended as such – a situation which may arise in a state/federal government clash over maritime boundaries. Report, at p. 133. He also cited (id., at p. 41) a statement made by the British counsel at the Fur Seal Arbitration Tribunal (1893) as to the effect of Art. V of the 1824 Russo-US treaty not amounting to British acceptance that all the waters within the Archipelago were “inland waters” as that Article only concerned “those bodies of water having the shape of gulfs, harbors, and so forth, and satisfying international rules for the delimitation of inland waters”.

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(to both of which Britain had been a party). He also made interesting observations more generally on how statements made in judicial pleadings could affect the matter of acquiescence.32 1.2.2 Knowledge of claim should be contemporary with declaration of claim Obviously, if States have knowledge of a an alleged historic claim, and wish to object to it, they should ideally do so at the time when the claim is publicly made, as a later protest will be ineffective; but if such States are not aware of an alleged historic ‘claim’ when ‘made’ – and particularly if the ‘claim’ is not effectively enforced thereafter – they will have no reason to protest;33 and accordingly their absence of protest does not per se amount to acquiescence. This consideration made the Alaskan response in its pleadings in Alaska v. US (2005)34 totally unrealistic; namely that since both the 1903 ABT case and the Fisheries case were “the subjects of considerable attention by other nations and writers in international law”, the absence of “any objection to the [US] claim, both as advanced [in the 1903 case] and as described by both Britain and Norway in the Fisheries Case, constituted acquiescence by the international community generally”. Indeed, in the US/Alaska situation any such foreign awareness of – and so possible acquiescence in, the alleged US historic claim – if indeed it did only come out in the 1951 Fisheries case – could only have come about by this particular process long after the initial alleged US ‘claim’ was supposedly made (i.e., in 1903).

2. General Considerations on Acquiescence At an early stage of international practice, foreign State ‘acquiescence’ was recognised to be a vital requirement in international law for consummation of historic title in the law of the sea. Commentators on historic waters are generally agreed on the importance of this requirement.35 Indeed, Blum describes the absence of protest (where it

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See below section 2.1.1.1. Although the US Supreme Court, in the earlier Alabama & Mississippi Boundary case, echoed the Special Master in asserting that foreign nations were aware of US policy in the 1903 Arbitration, as indicated by the fact that it was “cited and discussed at length by both the United Kingdom and Norway in the celebrated Fisheries case”, this gives no indication that either State knew – or acquiesced – in such a US claim prior to that date. And certainly the discussion of the issue by the UK in the Fisheries case, as seen, was mainly to counter the Norwegian reliance on it as an alleged precedent. Thus rather than “acquiescing” in it, the UK was largely disapproving of it. See above section 1. Response to the Defendant’s First Set of Interrogatories on Count 1, at p. 3 (emphasis added). See Blum, op. cit., at pp. 60–76; see also the UN Juridical Regime at p. 16. The ‘acquiesence’ principle may have a similar part to play internally in a domestic federal/State maritime dispute – for example, to evidence federal ‘disclaimer’ (in similar fashion to an international protest) – as hinted at by the Special Master in US v. Louisiana, when he stated that “there has never been any protest either by any foreign state or by the [US]” (Report, 1974, at p. 15). See also, for example, the Special Master’s further statement relating to acquiescence

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would have been expected) as the “cornerstone of the doctrine of acquiescence”.36 This requirement has been reected in early and more recent international adjudications and domestic caselaw. For example in the Gulf of Fonseca case in 1917, the Central American Court of Justice mentioned the fact of the “acquiescence of the family of nations”.37 Past British cases referred to the same requirement, as in the Direct US Cable case where the JCPC alluded to the British claim having been “acquiesced in by other nations”.38 And more recently in the El Salvador/Honduras case, the ICJ has reiterated this requirement in similarly-expressed terms – namely the “absence of protest from other States” as evidencing the historic status of the Gulf of Fonseca.39 States wishing to establish an historic waters claim have accordingly stressed the presence of acquiescence by other States. For example, Tunisia in Tunisia/Libya mentioned, regarding the Gulf of Gabes, “l’absence de contestation du titre de souvereignté de la part des Etats tiers”;40 and that the ancient nature of the Tunisian maritime occupation corresponded with the acquiescence of other powers.41 2.1 US caselaw and practice on acquiescence and its inuence on the international rules Statements in support of the requirement of acquiescence are to be found in US caselaw, indicating that this requirement was judicially considered to have been important in those cases. For example, in the Alabama & Mississippi Boundary case,42 both sides agreed that “no foreign government [had] ever protested” against the supposed US claim there. This requirement has also been mentioned in the context of foreign States

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and disclaimer in US v. Louisiana (Report, July 1974, at p. 16) (“whatever its position may have been theretofore, it is obvious that with the ling of the suit . . . the [US] did not acquiesce in such [state of the Union] activities but vigorously opposed the claim of the State of Louisiana, and has done so continously since” (emphasis added)). This language equates federal mentality with that of a true foreign nation by using word “acquiescence”; and implies similar international standards in this regard. See also the Report of the Special Master in US v. California (October, 1952) that under the circumstances “absence of objection to foreign countries [could] not be regarded as acquiescence, nor . . . could silence of the part of the [US] be regarded as a concurrence by the [US] in its foreign relations with the proposition on which California stood in these cases” (emphasis added) (cited by Whiteman, op. cit., vol. 4, at p. 245). Op. cit., at p. 130. (1917)11 A.J.I.L., at p. 674; see also id., at p. 705 (cited by Blum, op. cit., at p. 72). In the Fisheries case (albeit not in a strict historic title context) the ICJ referred to acquiescence to Norway’s actions (supra, p. 2, at p. 38). Cited by Jessup, op. cit., at p. 394. Supra, p. 2, at para. 405, p. 610. Memorial, para. 4. 89 (Pleadings, vol. 1, p. 105) citing the Fisheries case dictum (supra, p. 2, at p. 138) that general toleration was the foundation of consolidation of title. Id., at p. 106. This further evidences the interrelationship, already seen supra, p. 161, between the time factor and acquiescence. 470 US 93, at p. 110.

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in other past tidelands cases; for example, in the Cook Inlet case;43 and, more specically still, by the Special Master in US v. Louisiana44 relating to an alleged arrest of a Mexican trawler in East Bay outside the 3-mile limit, in the case of which the Special Master stated that no “notice to or acquiescence on the part of the Mexican Government” was “ever indicated”. In fact, in the US context, foreign acquiescence in historic claims has been impliedly required for acquisition of maritime historic rights as early as the ‘Randolph’ opinion of 1793 regarding Delaware Bay. This requirement – which has been cited internationally since45 – was seemingly catered for in the vague and dated words: “no foreign nation has, ever before, exacted a community of right over it”. The need for foreign ‘acquiescence’, was referred to also at the ‘Juneau Hearings’ concerning Alaskan waters;46 and has been generally endorsed in US practice.47 The US, for example, has emphasised the requirement of ‘general acquiescence’ in its past protests to other States’ historic claims – seemingly here requiring positive acceptance on a quasi-universal basis; as in the case of the Soviet Union’s claim to Peter the Great Bay, where the US stressed that there had to be “a degree of acceptance on the part of the rest of the world to justify the claim”.48 2.1.1 Alleged acquiescence in Alaska v. US (2005) In its Brief in Alaska v. US (2005), Alaska claimed that from 1903 until Alaska joined the Union in 1959, foreign nations “clearly” acquiesced in its historic claim. It added: “[i]ndeed, rather than protesting, foreign nations relied upon the United States’ claims

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422 US 184, at p. 200 (1985); and see US v. Alaska (1996) 521 US at p. 11 (cited in the Report of the Special Master in Alaska v. US (2005) at p. 131). Report of July 31, 1974, at p. 20. It was, for example, cited by the UK in its Fisheries case pleadings (Pleadings, vol. II, at p. 611) as evidencing “so much attention being given to the attitude of other States” to the US claim. It is cited by Blum (op. cit., at pp. 88/9) under the head of “State practice” as to acquiescence. Blum also cites the US Alleganean decision regarding the Chesapeake Bay historic ‘claim’ as not having been “questioned” from the earliest US history (op. cit., at p. 81: reported in Scott, Cases on International Law (1922), at p. 232). “Proposed Sea Boundaries for Alaska” by K.W. Stanley, (May 20, 1966) at pp. 31/42 (see bibliography). For example, in a US Memorandum of 1973 by Oxman (Digest of US Practice (1973), 244 at p. 245), it was stressed that the ofcial US position on acquiescence was that it had taken the position that “an actual showing of acquiescence is required”; i.e., it seems positive signs of consent are required. See also US v. California 381 US 139, at p. 172 (1965) and US v. Louisiana (394 US 11, at p. 24, n. 27 (1969); and M.W. Reed, op. cit., at p. 339, who cites both above cases in this regard (in US v. Louisiana, Louisiana having pleaded that its claims to waters lying between and adjacent to the passes of the Mississippi River had “never been disputed or questioned by foreign governments”). Department of State Assistant Legal Adviser for Ocean Affairs (reported in Digest of US Practice (1973), at pp. 243/4) (citing a 1958 US protest note to the USSR regarding Peter the Great Bay and foreign shing in the case of Alaska).

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of inland waters status for the waters of the Alexander Archipelago in pursuing their own boundary claims”.49 This wording seemed to imply that several foreign States had referred to it as a precedent for their own inland waters claims and so had actively acquiesced in it. This was, as will be seen below, not the case; as there was in fact no evidence in 1903 (at the time of the ABT case) – or in the years thereafter – that there was even any general international awareness of the alleged US inland waters ‘claim’ in the Alexander Archipelago and so the sort of notoriety which is normally required to lead to international acquiescence.50 Apart possibly from Norway (as evidenced by its dubious statements in the Fisheries case (see below, section 2.1.1.2)), there was no other State which appears ever to have been a candidate in respect of having specically “acquiesced” in (or agreed with in any positive sense) this alleged US historic ‘claim’. Signicantly the Alaskan Brief, as well as the Alaskan initial Responses, were able to detail no States other than Norway and the UK as having allegedly ‘acquiesced’.51 The Special Master found in the case that as “Russia and [its successor in title] the [US] did not sufciently assert authority over the waters of the Alexander Archipelago, it follow[ed] that foreign nations could not acquiesce”;52 and so the matter of acquiescence proved to be merely an academic issue in the case. He did, however, go on to comment that Alaska had “not produced any statement by the government of any nation conrming that it would acquiesce in exclusion of its vessels from the waters of the Alexander Archipelago” nor “any opinion from any expert in the law or policy of any foreign nations on the question of whether the foreign nation would acquiesce”.53 2.1.1.1 Alleged British acquiescence in 1903, later evidenced in the Fisheries case as discussed in Alaska v. US (2005) There was no evidence of of British acquiescence in the 1903 ABT case ‘claim’ in the British pleadings there. Thus it was totally misleading for the Alaskan Brief in the case to suggest54 that US caselaw (as seen) had “noted British agreement with the United States [1903] position”. The word “agreed” was misconceived, as in reality all the evidence implied no British acquiescence with the (alleged) US-claimed position as to the

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At pp. 16/17 (emphasis added). Any isolated statements in past US caselaw have, for this reason, be treated with suspicion. Most particularly this applies to the Supreme Court statement in the Alabama and Mississippi Boundary case (470 US 93, at pp. 106/ 7 (1985)); namely that the 10-mile rule “represented the publicly stated policy of the [US] at least since the time of the Alaska Boundary Arbitration” and that there was no doubt “foreign nations were aware” of this (emphasis added). This appears, as seen, to be a gross overstatement generally, but also insofar as it may relate to alleged acquiescence in any specic US ‘claim’ to inland waters in the Alexander Archipelago. Cf. Alaska’s Exceptions, at p. 24 (“Britain, for its part, sought to distinguish Norway’s situation, but never denied the validity of the U.S. claim”). Report, at p. 131. Id., at p. 132. At p. 16.

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alleged outer line along the Archipelago itself. Thus the matter was stood on its head by the Alaskan Brief in this matter, as Britain, far from “agreeing” with this particular US position, actually formally opposed it in its pleadings.55 Indeed, the British insistence on its interior (straight) baselines in and of itself in 1903 amounted to at least an implicit rejection of the US-alleged outer line.56

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Proceedings, vol. VI, at p. 611. The cited reference for this in the 1903 ABT proceeedings merely concerned US counsel’s unilateral ‘claim’ that the “width of bays and inlets” could be up to 10 miles wide in this case; so that the most that Britain was generally “acquiescing” in was its own general bay-closing rule – one which was more referable to inland (bay) closing lines than to an outer coastal archipelago: see e.g., id., Pt. III, at pp. 26–30. The Alaskan Response to Question 2 of the First Set of Interrogatories in Alaska v. US (2005) took the matter no further in evidencing the basis of the Alaskan claim on this issue, merely vaguely stating (at p. 3) that “Britain explained [in 1903] that it did not need to controvert the [US] claim that the political coast of the [Archipelago] followed the outer coast of the islands because, at the time of the 1903 Arbitration, the mainland facing the islands was [US] territory” citing as “Britain’s position”, at the time of the 1825 treaty, the fact that the mainland “might well be regarded as having even a ‘political coast’ of its own” (Proceedings, Argument of Great Britain, at p. 34 (emphasis added)). As has been already seen, this particular historical aspect was not a British argument in the case; indeed one British counsel, Sir Edward Carson, rightly called the US ‘outer coast’ argument a “very curious one” (id., at pp. 669 and 692). Similarly, the references in the 1903 argument to the “British case” in those proceedings (id., vol. IV, Pt. III, at pp. 26–32) merely concerned British argument over the inner coastline or the US argument alone (see id., vol. V, Pt. I, at pp. 15–16). Thus at most in this case there was some evidence of US “acquiescence” at that time in the tentatively-suggested British viewpoint on a 10-mile rule for bays (see id., Pt. VII, at p. 611). Thus the statements made by US counsel in his Argument were not to the point (id., at pp. 609 & 614, including that just because Britain did not feel it necessary to “contravert” the US argument relating to the ‘political coast’, this was equivalent to an “admission [by Britain] that [this line] was outside the coast” (emphasis added); and that “. . . after the admission ha[d] been made that the political coastline is outside there, there can be no political coastline inside”). This lack of acquiescence is further evidenced by the British insistence that the lisière was not intended to “affect any marine rights” (id., Counter Case of Great Britain, at p. 33); and its insistence also on the “right of passage” through straits inside the islands implies very strongly that it objected to these waters being categorised as “inland” rather than “territorial” – in the case of navigation of inlets there being (allegedly) no right (of Russia) to prevent use of those waters for the purpose of innocent passage by another Power (see, e.g., id., at p. 26) (a contrast made between the right of innocent passage on the one hand and use of waters for trading or shing on the other). This ts in with later British policy in respect of coastal archipelagoes, as the UK in general denied the legality of any such inland waters claims in the Fisheries case. See, e.g., the UK Reply of 28/11/50 (Pleadings, at paras. 349/50 (“general international law has not recognised any special principle” as being allowable)); and the words of British counsel, Waldock (Reply, id., of 16/10/51 at p. 415) stating emphatically that in principle an outer coastline formed of islands does not entitle the drawing of a “wholly imaginary line of enclosed waters”; and that the UK “had never heard of any rule of international law permitting a State to do anything like this” (emphasis added). As the Special Master pointed out in his Report in US v. Alaska (1996) (at pp. 96/7), at most the UK there made reference to the 1903 ABT case to bolster its general argument that there was a ten-mile limit on any closing

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The Alaskan Brief in Alaska v. US (2005) further alleged57 that, in the Fisheries case, the UK “cited the United States’ position at the 1903 Alaska Boundary Arbitration, as well as the ten-mile closing line rule for bays and straits leading to inland waters, in support of its position in their dispute”, so allegedly showing further British acquiescence in the claim. This was also misleading, as it is clear that it was in fact Norway which referred to the case in its pleadings in an attempt to evidence some past support for its straight baseline system around its skjaergaard. To this the UK inevitably had to respond in its pleadings.58 And, in fact, the UK emphatically denied there that the 1903 case had anything to do with straight lines on the seaward side of the Archipelago. Still less was there British ‘acceptance’ of that claim in that case before the ICJ, as alleged by Alaska.59 There was thus no evidence subsequent to 1903 that Britain ever thought it had acquiesced in an American claim to historic inland waters in the Archipelago. Likewise, the Special Master in Alaska v. US (2005) found that neither the briefs of Britain (or Norway) showed that they had acquiesced “in the argument made by counsel for the [US] “at the 1903 Alaska Boundary Tribunal”. This was because:60 Although both parties cited arguments made by counsel for the [US], they had no occasion to acquiesce in them. The Fisheries Case concerned whether Norway could draw straight baselines upon its coast, not whether the [US] properly had drawn closing lines between the islands. Moreover, by the time of the Fisheries Case, the [US] had endorsed contrary principles.

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lines around islands. Thus there was no evidence of any British acquiescence in the actual and specic alleged US baselines said to arise from the case. Many of the indirect Alaskan references to the Fisheries case in its Brief in Alaska v. US (2005) (e.g., to, paras. 332–36 thereof (of 28/11/50)) had no reference to the 1903 case as such. In fact, as seen (e.g., infra, nn. 64, 66), in the Fisheries case, Norway’s pleadings frequently misrepresented the British stance in 1903, including, inter alia, “British argument before the Alaskan Boundary Tribunal as evidence of the [UK’s] persistent denial of any rule limiting the width of territorial bays” (emphasis added) (referred to in the UK Reply of 28/11/50). See also Pleadings, id., at p. 478 (“there is some limit to the territoriality of bays . . .”), citing the British Counter-Case ( from the ABT, 1903, at p. 24). In fact in US v. Alaska (1996), the Special Master commented (Report, 1996, at p. 63, n. 23), citing the British Counter-Case in ABT, that the “precise limits within which international law regards bays as territorial waters have never been determined”. At pp. 16/17. See also the Alaska’s Exceptions, at p. 24 (“ Britain’s admitted understanding was then the most pertinent for this case since Britain was then the foreign nation most affected by the Alaska claim, given its sovereignty over neighbouring Canada”). In its Counter-Memorial, see Pleadings, UK Reply of 28/11/50, at paras. 335, 336. As further alleged in the Alaskan Responses to the Defendant’s First Set of Interrogatories (at p. 1). As far as the UK was concerned, it was seemingly referring to the case because it had been initially raised by Norway to support its (Norway’s) position; and the UK was in fact at pains to try to downplay its signicance in the context of archipelagic coastal waters. It was only incidentally in its counter-argument that the UK placed any reliance on the 1903 arbitration; namely in the more general context of supporting the UK’s thesis of a ten-mile bay-closing rule in international law. Report, at p. 133. See also the Special Master’s broader conclusion on this matter in US v. Alaska (1996), Report, at p. 98.

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2.1.1.2 Alleged Norwegian acquiescence The Alaskan pleadings in Alaska v. US (2005) alleged, as evidence of foreign acquiescence in its alleged 1903 historic waters claim, that in the Fisheries case, Norway “not only acquiesced” in the alleged historic ‘claim’, but also “cited the United States position in support of its case”, and even there “accepted that claim”.61 In fact both the British and Norwegian governments – as other foreign governments – would surely have been more aware of the almost immediately subsequent clear US countervailing baseline policy, at least by the time of the Hague Codication Conference, which both States attended, and so would have been conversant with the US “arcs of circles” policy as stated there. Thus, the Special Master in US v. Alaska (1996) mentioned the fact that in the Fisheries case, Norway had made references to this US policy (i.e., that it had discussed the US position in the 1903 boundary arbitration and US correspondence during the 1860s on Cuba and the Florida Keys), but he made trenchant criticism of such ‘Norwegian’ references.62 In Alaska v. US (2005), the Special Master, to similar effect, referred to diplomatic correspondence between Norway and the US in 1949, in which the US told Norway that it was adhering to the proposals made in 1930 at the Hague Codication Conference.63 Additionally, therefore, it could be said that Norway was relying on misconceived facts in relation to the Alexander Archipelago, because (no doubt with a view to preparing pleadings in imminent litigation with the UK), Norway had already inquired

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See Alaska’s Responses to the Defendant’s First Set of Interrogatories, at p. 16 (emphasis added), and Exceptions at p. 23, referring to the dictum in the Alabama and Mississippi Boundary case (470 US at 107) that there was “no doubt that foreign nations were aware that the [US] had adopted [the alleged 10-mile] policy applied in 1903 because ‘the [US’s] policy was cited and discussed at length by both the [UK] and Norway in the celebrated Fisheries Case”. Thus mere citation in a foreign State’s pleadings in an international case was here alleged to give rise to its acquiescence. Report, at p. 95. The Special Master rightly pointed out that “Norway was not justied, in 1950 [i.e., in the litigation] in making this assertion that the United States followed a straight baseline system”. He here gave as one of his reasons for discounting the Norwegian pleadings the fact that “the materials Norway cited dated from 1903 and earlier” (emphasis added), including US correspondence on the Cuban and Florida Keys. The latter references are addedly signicant as Norway in the case misleadingly referred to the Florida Keys as the “skjaergaard” of Florida and as further evidence of the similarity of the US and Norwegian systems. All this is ironic in that, in 1976, the Supreme Court found not only did this Florida coast not have an historic waters claim attached to it, but neither were there juridical bays or any permissible straight baseline claims there (see US v. Florida 425 US 791 (1976)). Report, at pp. 84/85. See, also the Supreme Court (545 US 75, at pp. 89, 90) where it referred to the Alaskan argument on Norwegian acquiescence. The Report of the Special Master in US v. Alaska (1996) is also signicant on this matter. Here he pointed out (at pp. 78/9) that when the US had replied to the Norwegian aide memoire in 1949 (i.e., just as the Fisheries litigation was starting) on its practice since 1929, it referred again to US proposals at the Hague Conference in 1930 and Boggs’ article; and that “the [US in 1949] maintained “the same method of geographic measurement of its territorial waters” (emphasis added).

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(on September 29, 1949) of the US Department of State on the subject of US territorial waters since 1929 (asking for “copies of any regulations which might exist regarding the delineation of the political coastline or the drawing up of the limit between internal and territorial waters”).64 Accordingly, Norway was specically told in an 1949 aidememoire that “[w]ith regard to the demarcation of the line separating inland waters from the territorial sea, the US maintained the same methods as in the US proposals made at the Hague Codication Conference in 1930” and as detailed in Boggs’ famous article on “Delimitation of the Territorial Sea”, i.e., the use of arcs of circles rather than straight baselines.65 It follows from this clear evidence that any alleged Norwegian ‘acquiescence’ in the 1951 Fisheries case, based on incorrect facts, can hardly be considered to be proper ‘acquiescence’. Norway must have known even at that time that its reference to US maritime practice in this instance relating to coastal archipelagoes was a specious argument.66 Aside from the considerations mentioned above, any alleged Norwegian ‘acquiescence’ in the status of the waters of the Alexander Archipelago resulting from the Fisheries case – based as it was on broad principles for the sake of pleading a different geographical case – would hardly be considered to be a classical case of acquiescence, the Alaskan 1903 ‘situation’ being raised (as seen) purely for the sake of supporting Norway’s own claim; and, perhaps most fatally of all, reference being made so retrospectively (i.e., almost 50 years after the original alleged US claim was made). Furthermore, it is evident that Norway did not, in any event, refer to the 1903 case as evidence of a US historic claim.67 For although Norway in the Fisheries case, referred

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In fact even as early as 1929 the US had responded to a Norwegian request for information on how the US delimited its territorial waters and sheries jurisdiction when Norway was informed that, except where covered by treaty, “such lines have not been determined by the [US]”: see Hackworth, Digest of International Law, vol. I, at p. 644. Report, March, 996, at pp. 78/79 (emphasis added). See also id., at pp. 67/8. The ‘Boggs’ reference is in (1930) 24 A.J.I.L. 541. A further Alaskan allegation appeared in its Responses to the Defendant’s First Set of Interrogatories, namely that “as the lines Norway was claiming [as baselines] . . . were substantially longer than the 10-mile lines claimed by the [US], Alaska’s claim simply would have been a lesser included claim under the methodology advanced by Norway” (id., at pp. 67/8). This allegation is totally dismissible in terms of its generality. The UK itself pointed out in its counter-pleadings in the case, as seen, that the US had abandoned any ‘10-mile rule’ by 1910 in the North Atlantic Fisheries case. It may also be noted that the eminent Norwegian jurist, Jens Evensen (advocate of the Supreme Court of Norway), when he drew up his Preparatory Document No. 15 on “Certain legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagoes” (see above Chap. 1, n. 71: UN Doc. A/CONF. 13/18), specically mentioned in this 1957 UNsponsored Report – drawn up only some six years after the Fisheries case had been decided – the fact that not only was the USA “one of the staunchest advocates of the view that archiplagoes, including coastal archipelagoes, cannot be treated in a different way from isolated islands”, but also that “according to information received”, the US practice in delimiting the “waters of the archipelagoes situated outside the coasts of Alaska is that each island of such archipelagoes has its own marginal sea of three nautical miles”. He expressly added that the US had “certain stretches” of archipelagoes on the coast of Alaska; and that the US had been

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in some depth to past US claims to historic bays – Chesapeake and Delaware, for example,68 – when then mentioning the “frontier of Alaska” in 1903, it made no analogous reference to any US claim to historic waters in the area of the Alexander Archipelago.69 Thus although Norway in its Counter Memorial discussed some US examples of historic bays,70 it never in this context mentioned the Alexander Archipelago; nor did the Norwegian list of analogous geographic situations to the Norwegian coastline mention the Archipelago (merely, in US context, the coast of Florida).71 2.2

Problems over the requisite type of acquiescence

Unfortunately, the supposed legal requirement of ‘acquiescence’ for historic title is fraught with doctrinal problems, not only relating to the type of ‘acquiescence’ (whether it has to be positive or not), but also as to the actual requisite extent of such ‘acquiescence’ internationally.72 The UN Juridical Regime refers73 to the idea of an “essentially negative concept”; and preferred the use of the term “toleration”,74 following the ICJ in the Fisheries case. Thus this UN study does allow inaction by states to amount to ‘acquiescence’ so as to avoid a positive implication in the word ‘acquiescence’. In similar fashion, Blum concluded that it is a “negative concept”, i.e., including inaction (silence), but only in circumstances which call for “positive reaction signifying an objection”.75 Some commentators have expressed the ‘negative’ idea as simply amounting to a ‘laissez-faire’ international ‘inaction’.76 In Tunisia/Libya, for example, the alleged “unanimous” recognition of historic rights in the Gulf of Gabes was admitted in pleadings to be more often implicit than explicit.77

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“one of the staunchest advocates of the view that archipelagoes, including coastal archipelagoes, cannot be treated in any different way from isolated islands where the delimitation of territorial waters is concerned” (id., at p. 297 (emphasis added)). There is not a hint here that his State of nationality, Norway, had alleged otherwise in the case of the Alexander Archipelago in the Fisheries case (to which case he frequently referred in other contexts in his paper (id., at pp. 290 and 297); or in his section on Norwegian practice (e.g., id., at pp. 289, 293, 297 and especially at pp. 300–301). Nor, equally signicantly, was there any mention here of the 1903 ABT case under the heading of practice of the “United States of America” (id., at p. 295). Cf. above, p. 127, n. 54. It cites, for example, The Alleganean case of 1862: Pleadings, Counter Memorial of 31/7/50, at p. 553. Id., at p. 554. Id., at p. 549 et seq. See below, section 3. At p. 16, para. 108. Id., at p. 16, para. 110. For detailed discussion whether it is a positive or negative concept, see Blum, op. cit., at p. 131 et seq. As seen above n. 36, op. cit., at p. 133 (citing MacGibbon emphasis added). E.g., T. Scovazzi, op. cit., supra, p. 118, n. 6. at p. 326 (“le manque d’intérêt de la part des autres états”). See in the Memorial of Tunisia (Pleadings, vol. 1, at p. 106, para. 4.91) reference to “le silence des puissances face à l’exercice de ces compétences nationales sur la zone considerée apparaissant, en fait, comme le mode d’acquiescement international ordinaire”. It was also

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2.2.1 Discussion of acquiescence in the El Salvador/Honduras case In this case, the ICJ afrmed that the waters of the Gulf of Fonseca “continue[d] to be subject of that ‘acquiescence of other nations’ to which the 1917 Judgment refer[red], for the [ICJ] Chamber [was] unaware of a differing view by a third State”;78 and it recited with approval an earlier judicial statement from the Tunisia/Libya case (1982) that historic titles must “enjoy respect”.79 In principle the Court thus followed the earlier 1917 decision which referred to the necessity of acquiescence on the part of other nations.80 The re-iteration of the word “respect” in the case seems almost to imply some need for positive acquiescence by other States. However, in this comparatively recent authoritative consideration of one of the so-called key requirements for historic title to waters, the ICJ seems to have assumed continuing (universal) acquiescence from somewhat scanty evidence – including (it seems misguided) evidence of approval by the US of the Gulf as containing historic waters;81 and where the attitude of other states to the status of the Gulf was unknown.82 The ICJ seems, in fact, to have short-circuited the acquiescence factor by citing as evidence of acquiescence just two text book writers,83 having said that this status had been “generally accepted by the commentators”. 2.2.2 Discussion of this aspect of the acquiescence principle in past US caselaw In US v. Louisiana,84 the Supreme Court indicated that “[s]ome disagreement exists as to whether there must be formal acquiescence on the part of foreign states, or whether the mere absence of opposition is sufcient”. But in the Cook Inlet case,85 the Supreme Court emphasised the need for what might be dubbed more positive acquiescence – namely that “something more than the mere failure to object must be shown”; and it ruled (as seen above)86 that a failure of foreign nations to object to a claim is not normally evidence of acquiescence (unless it could be shown that the relevant governments knew, or reasonably should have known, of the authority being asserted). Thus

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argued (by Dupuy, in oral pleading, Pleadings, vol. 4 p. 460, citing Charles De Visscher), that acquiescence need not be “express”. More vaguely, as seen above at n. 37, in the Gulf of Fonseca case in 1917, the Central American Court of Justice mentioned the fact of the littoral States having “notoriously afrmed their peaceful ownership and possession the the Gulf” which situation could only have come about “by the acquiescence of the family of nations” (emphasis added). Supra, p. 2, at p. 593; also cited at p. 589, para. 384. Supra, p. 4, at p. 73. Discussed by Blum, op. cit., at p. 259. See I. Scobbie, “The ICJ and the Gulf of Fonseca” (1994), 18 Marine Policy, 249, at p. 258 (the US only recognised the waters as being “territorial”). Supra n. 78, at p. 593. Namely, Gidel, op. cit., vol. 3, at pp. 326/7; and Oppenheim (ed. Lauterpacht), op. cit., at pp. 593/4. 394 US 11, at pp. 23/4, n. 27 (1969). 422 US 184, at p. 200 (1975). Nn. 4 and 20.

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the Court found – citing the UN Juridical Regime – that no acquiescence had arisen in that case.87 In the earlier Alabama and Mississippi Boundary case,88 the Supreme Court had stated a far less positive-oriented test relating to the Mississippi Sound, emphasising mere failure of actual protest per se; namely that “the US had publicly and unequivocally stated that it considered Mississippi Sound to be inland waters”; and that “under these circumstances, the failure of foreign governments to protest” was sufcient proof “of the acquiescence or toleration necessary to historic title”. In Alaska v. US (2005), the Special Master’s followed the Cook Inlet precedent stated above in nding, as seen, that Alaska had not produced “any statement by the government of any nation conrming that it would acquiesce in exclusion of its vessels from the waters of the Archipelago”.89 2.2.3 Requests for information or mere agreement with a law of the sea policy of another State are not equivalent to acquiescence A mere request for information on another State’s maritime claims may not amount to acquiescence. For example, Norway stated in the Fisheries case90 that the US was one of the seven States which had asked for copies of its 1935 Decree – and allegedly this had (obviously) not been requested because of any US shery interests there. This led British counsel, Sir Eric Beckett, to ask what proof this was that the US, inter alios, accepted the Norwegian line as valid in international law simply because it had not taken the further step of “protesting against it”.91 The fact that the US took the trouble to get further information on the Norwegian decree in 1935 when the Norwegian straight baseline system became explicit (rather than as previously, implicit), arguably indicated no more than that the US had some concern on this matter of straight baselines relevant to the development of general international law; and indicated no US acceptance of the then-Norwegian claim.

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Id., n. 85 above (“the failure of those governments to protest is inadequate proof of the acquiescence essential to historic title”). 470 US 93, at pp. 110/11 (1985). As one US commentator points out (M.W. Reed, op. cit., at p. 339): International authority is split on whether the attitude of foreign States must be acquiescence or merely the absence of opposition. Recognising this split, the Supreme Court has opted for the more stringent requirement of acquiescence . . . So has the Department of State in its dealings with foreign nations. Report, at p. 132. He thus noted “the absence of any formal statement that foreign nations would acquiesce in the exclusion of their vessels [from the Alexander Archipelago]”. Alaska had claimed that the standard: ‘inaction or toleration’ was all that is required to show acquiescence” (citing the Alabama & Mississippi Boundary Case, 470 US at p. 110); and had claimed that letting “the matter drop” as in the Marguerite incident was “ clear evidence of both inaction and toleration” (Alaska Brief, at p. 16). Pleadings: Duplique of Arntzen of 29/10/51, at p. 560. Cf. the Norwegian actions prior to the Fisheries case: supra, section 2.1.1.2. Reply of Sir Eric Beckett, Pleadings, vol. iv, at p. 375.

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In the same manner, Alaska in Alaska v. US (2005), tried to stretch the meaning of acquiescence to extreme lengths, as in its pleadings it claimed that even mere express agreement with a certain supposed law of the sea policy by a third State was sufcient to evidence its acquiescence in a supposed (historic) claim based on it. Thus, for example, it was noteworthy that Alaska alleged that the UK agreed “more generally” to the US principles advanced in 1930 (at the Hague Codication Conference) on a 10-mile rule for bays where straits lead to ‘inland seas’, deducing,92 quite unjustiably, from this that “[a]s the [US] claim with respect to the waters of the Alexander Archipelago was merely an example of this more general policy accepted by Great Britain, Great Britain’s acceptance of that more general policy also constituted acceptance of the [US] specic application of that policy to the [Archipelago]”. It is hard to imagine a more strained example of ‘acquiescence’ to an alleged historic claim when geographically-specic back-up evidence is entirely lacking. 2.2.4 What amounts to ‘protest’ and its relevance to preventing historic claims Where there has been an immediate and clear protest by a State to the claim – or to subsequent enforcement action in relation to such claim – acquiescence is clearly absent, as in the case of the Gulf of Sirte claim by Libya to which the US, Malta, and the EU swiftly protested.93 It may, however, be important to examine the exact intent behind an apparent ‘protest’. For example, in El Salvador/Honduras, El Salvador acknowledged that before delivery of the judgment of the Tribunal in 1917, Honduras addressed a protest to El Salvador opposing the Salvadorean claim asserting co-ownership over all the waters in the Gulf of Fonseca.94 El Salvador admitted that “at rst sight” this might appear to be a “complete rejection” of the co-ownership claim; but, it claimed, the actions of Honduras allegedly subsequently showed it to be of a “limited character”; i.e., merely intended to disapply the 3 mile belt of waters contiguous to the coasts of the riparians.95 A ‘reservation of position’ statement may, though, be equivalent to a ‘protest’. In Tunisia/Libya, for example, the pleadings of Libya stated that there was “no evidence of any acquiescence by Libya in the Tunisian claim to treat large expanses of water as internal”; and that “[o]n the contrary, when the claim was made manifest in the 1973 Tunisian law, Libya took the opportunity of reserving its position” in the then-current discussions – a “reservation re-iterated in a Libyan Note of January 20, 1979”.96

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See Alaska’s Responses to the Defendant’s First Set of Interrogatories at pp. 2/3 and pp. 4–12 (emphasis added). See T. Scovazzi, supra, n. 76, at p. 329. Memorial of El Salvador, at pp. 178–180, para. 13. 5/6. Id., at p. 179, para. 13. 6. Memorial, para. 141 (Pleadings, vol. 1, at p. 506). For similar reasons, States may occasionally make premature ‘protests’ to cover themselves; as in the case of the Italian ‘historic’ claim to the Gulf of Taranto, in the case of which the US protest instructions indicated that the early US complaint would help protect the US against any later claim to “historic legitimacy” even though “it may not have been a valid historic claim when rst announced” (see T. Scovazzi, supra, n. 76, at p. 329).

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Lack of protest, as seen above, is, of course, not necessary bolster to an alleged historic waters claim if the situation does not warrant a protest.97 In this context it may also be noted that, as a matter of caution, some States, including the UK, may – and occasionally do – refrain from formally protesting for political reasons although opposed to an historic claim in principle. Even where a protest does ensue, if the protesting State’s protest is isolated and not persisted in, it may evidence acquiescence in some circumstances. However, on such a point, in Alaska v. US (2005), the Special Master held98 that Britain, following the seizure of one of its registered shing vessels, The Marguerite (see Chapter 13, section 4.3.2.1) for alleged illegal shing in the waters of the Alexander Archipelago, had “immediately protested the seizure”; and that although it had “ultimately let the matter drop”, it was “difcult to see what else Britain could realistically have done to register its non-acquiescence”. 2.2.4.1 The general position on US protests Past US protests against allegedly illegal claims to historic waters – as part of the ‘FON’ programme – have specically included coverage of “unrecognised historic waters claims”.99 Such protests have had the additional importance of indicating ofcial US understanding of the international law rules relating to historic title; for example, in the case of its past US protests to the USSR (as over the USSR claim to Peter the Great Bay as being historic in 1957).100 97 98

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See the Juneau Hearings (infra, n. 116) on this aspect. Report, at p. 132. Alaska had alleged over the Marguerite incident (Exceptions, at p. 28) that the seizure more than 3 miles from shore was followed by British “acquiescence” to it. See id., at p. 34 (“. . . importantly, Britain acquiesced to the 1924 Marguerite seizure by failing to pursue its protest having been informed that the vessel was intercepted in U.S. waters”). Compare the case of the expulsion of the French trawler, Les Quattres Freres, from Vestfjord by Norway where a diplomatic protest followed but the outbreak of the FrancoPrussian war in 1870 effectively stymied any further reaction from France (see Nixon, supra, p. 6, at n. 28, in the Libyan Annexe to pleadings in Tunisia/Libya, at p. 325). Compare the situation in the Cook Inlet case as referred to by the Supreme Court, supra, p. 229, at p. 204 (“Japan immediately protested”). See also, e.g., the British low-key statement of 1981 in the House of Lords in reply to whether the UK had recognised the Italian claim to the Gulf of Taranto (“not consistent with [the UK’s] interpretation of the [TSC]”): Hansard (HL) vol. 424, col. 368) in contrast to the US public challenge of it twice (see Ronzitti, supra, p. 101, at p. 282). Cited by Galdorisi, Beyond the Law of the Sea (1997), at p. 83. See Roach & Smith, op. cit., at p. 49. This precedent was internally cited in a 1972 US Memorandum from the Department of State to Ambassador McKernan (the ‘McKernan Memorandum’ of August 30, 1972) (annexed to Alaska’s Brief, at p. 28e at p. 35e)) (“In 1957–1958, we opposed a Soviet claim of historic title to Peter the Great Bay, which the Soviet Government asserted, had been included as internal waters under its sheries regulations. . . .”). Such past US protest notes may, as seen, strongly evidence ofcial US policy on legal aspects of acquisition of historic title. For example the US protest to the USSR in 1958 (regarding, again, Peter the Great Bay) was cited by an ofcial US Memorandum in 1973 to show that the US views an “actual showing of acquiescence” being required in international law; so that to receive the required “degree of acceptance on the part of the rest of the world” the coastal

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There has also been in US practice a broad concern not to make maritime claims for the US which it would object to on the part of others;101 and which so might upset a past policy of US protests. Such broader US concerns have, on occasion, been specically expressed in connection with any possible US historic waters claims. For example, an ofcial letter of 1974 stated that the US has “consistently maintained the position that extensions of internal waters should be limited, and particularly that the standards for establishment of historic claims should be strictly interpreted and applied”; and that “on this basis”, the US had refused to recognise such claims of “other countries”: as for the US to accept compliance with less would “encourage other States to make claims to expanded jurisdiction”.102 Similarly a past US Department of Justice letter of

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state’s acts of sovereignty “must have been known to foreign nations” (see Oxman, supra, n. 47, in Digest of US Practice (1973), 244, at p. 245). Several past protests at other States’ baselines were cited in the pleadings in the Fisheries case, including protests of the US: see, e.g., Pleadings, Appendix No. 13 (f ), which includes a note of 4 June, 1951 (id., at p. 603) from the Government of the [US] to the Government of Egypt taking “exception” to all provisions which “purport to extend the inland waters of ports and harbours and such bays and other enclosed arms of the sea as are recognised as inland waters by international law”and (id.), a Note, dated 7th June, 1951 from the USA to Ecuador, stating in the case of “insular possessions”, there is to be a “separate belt of territorial waters for each island” (more than 6 miles apart); so that an assertion of a claim to a “single belt of territorial waters around the entire Colon Archipelago” contravened international law. See, e.g., the US Brief in US v. California (No. 5 Original (1964) at p. 88) which restated, in simple terms, the longstanding US principle that “the [US] must itself abide by the [law of the sea] limitations it asserts against other nations”; and Boggs, ‘Delimitation of Seaward Areas under National Jurisdiction’, (1951) 45 A.J.I.L. 240, at p. 243. Numerous past ofcial US statements indicate that the broader inland waters become, the more the freedom of the seas principle will be curtailed (see, e.g., Whiteman, op. cit., vol. 4, at 217). The general point was well put by Mr Nelson at the Juneau Hearings (see above p. 213, n. 2) (referring to “Provisional US Charts Delimiting Alaskan Territorial Boundaries”, No. 92–69, at p. 4), when he said: “The essential point is that we cannot assert a right to claim jurisdiction over a particular area unless we are willing to accept similar claims by others”. See also id., at p. 10, where he also opined that a straight baseline claim may have an “element of a basic change in policy whereas an historic bay claim “does not have that connotation”; also id., at p. 41e of the same document (“While assertion of an historic claim may also be possible, we believe such a course would raise some uncertainities and possible difculties with other governments . . .” (emphasis added)). See, e.g., also, the Department of State letter to Alaskan Governor Hickel turning down his request for adoption of straight baselines along the Alaskan coast in 1966 (“Remarks Concerning the Recently Published State Department’s Charts” by R.L. Hartig, annexed to the Juneau Hearing papers (at pp. 168, 169)) (“it is in the interest of the [US] as a maritime and naval power to maintain the widest possible freedom of the seas and not by its example to encourage other nations to reduce to their sovereignty by the use of straight baselines in large areas which would otherwise be high seas”). Thus where a State has made excessive historic claims, it may then may be inhibited in protesting similar claims by others, as in the case of the USSR historic claims and the Italian claim to the Gulf of Taranto (see Francioni, supra, p. 184, n. 100, at pp. 323/4). C.E. Maw, Legal Adviser to the Department of State, to W.H. Johnson (Assistant Attorney

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1973103 indicated that US domestic consistency of maritime practice might also be upset by just one invalid US historic claim. As it expressly warned then, for the US to deviate from the standards of proof (in international law) as regards establishing historic waters would “risk compromising the disclaimers to alleged historic title which the [US] has already made in connection with other parts of [US] coasts”. On such issues, the ‘Stevenson memorandum’ (of 1972) stressed what a fetter on future US foreign policy a particular domestic historic claim might be, when it noted that the advantage of adhering to the then-present system of delimitation in the Alexander Archipelago (i.e., enclosure of islands by arcs of circles) “[was] that it [did] not involve adoption of either straight baselines or historic claims, and thus [could not] possibly involve any prejudice to [US] position [which it] might wish to take in the future with respect to the use of these techniques by others”.104 Such broader considerations would obviously have applied if the US had made a dubiously-valid historic claim to the Archipelago’s waters. 2.3 When must non-acquiescence (protest) be manifest or acquiescence start? This temporal factor adds to the complications of assessing fullment of the supposed international legal requirement for establishing valid historic title The UN Juridical Regime, on the question of “when” a protest must be made to be effective, stated that

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General of Land and Natural Resources Division, Department of Justice) on 19 April, 1974: cited in (1974) Digest of US Practice, at pp. 291, 292 (emphasis added). See also the US response in the early 60’s to a possible Canadian historic claim to the waters of Dixon Entrance and Queen Charlotte Sound (US Archive Refs. 01509, 01517, 01543), referring to any recognition of same as setting unfortunate precedents which could be seized on by other States to bolster their historic claims, e.g., by the USSR. For further reference to this ‘Canadian’ factor, see Special Master Mann in US v. Alaska (Report, 1996, at p. 169). Referred to in the Memorandum from Brower to McKernan (January 16, 1973), cited in Alaska Ex. 7, at p. 24e. Past State Department comments have made such points specically in relation to enclosing the waters of the Alexander Archipelago. See, e.g., the ‘Stevenson Memorandum’ (1972) on an inland waters claim to same (Alaska Ex. 8 at p. 39e) (it “might encourage others”) and, (id., at p 40e), it might “weaken [the US] position vis-à-vis claims by various other States”). The fear would be, as seen, that a misguided domestic policy of claiming excessive expanses of waters as historic would be seen as weakening any US diplomatic protest in respect of similar foreign-State claims. As the abovementioned State Department Memorandum of August 30, 1972, said (emphasis added): The disadvantage of an historic approach [to the Alexander Archipelago] is that it might involve some fairly difcult problems of proof vis-à-vis other governments, since our records may be less than conclusive. Moreover, to the extent that we were unable thoroughly to document our claim, our ability to contest historic claims of others would be somewhat reduced. This ofcial memorandum shows, then, that such a claim would have unfortunate results as a precedent in US foreign policy. Similar remarks were also made at the Juneau Hearings. Of August 30, 1972, cited in Alaska Ex. 8, at p. 34e in Alaska v. US (2005) (emphasis added).

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as “exercise of sovereignty must be effective and public”, time cannot begin to run “until these conditions have been fullled”.105 The study also stated, conversely, that the ‘build-up’ of opposition may come too late – i.e., at a time when historic title has already come into existence.106 For example, in the Fisheries case, this initial time factor was a matter of serious dispute between the Parties. Norway, in claiming, for such a purpose, an earlier point of time (in the 19th century) to that accepted by the UK, pointed out107 that in the 19th century, there were no objections to the Norwegian claims, apart from France (which had not persisted in this, and had not followed this up by protest to a later Norwegian decree in 1889); and that accordingly British protest in the 20th century was too late (and was anyway (allegedly) “isolated opposition”).108 Norway thus argued in the case that a late objection to an historic claim should be rejected ; and that in the Norwegian situation the Court should take into consideration the situation existing in 1906, so ignoring what happened subsequently (e.g., at the time of the alleged rst UK “intervention” in 1911).109 A similar point was to be made by Tunisia in the Tunisia/Libya case. There it was alleged that the Libyan objection to the Tunisian Gulf of Gabes claim was not made until its Note of 1979, “after” the alleged ‘critical date’ (i.e., signature of the Special Agreement to refer the case to the ICJ).110 Because of temporal uncertainties such as these, States may actually ‘hedge their bets’ on timing a protest to err prematurely on the side of caution, as in the case of the US protest over the Italian claim to the Gulf of Taranto.111 This shows the possible wisdom of protesting any claim which appears to contravene the law of the sea even though at the time of origin no overt historic claim has been made, or indeed, could have been successfully made because of the recency of the announcement of the claim. Despite subjective problems as to the ‘critical date’ of claim, it may in general be argued that any ‘acquiescence’ in, or protest against, an historic claim should be made at the time the claim was ‘made’, as was argued in Tunisia/Libya.112 In Alaska v. US (2005), the ‘late acquiescence’ factor made dubious, as seen, the invocation by Alaska in its pleadings of the alleged Norwegian acquiescence (in the early 1950s) to the 1903 alleged US ‘claim’; i.e., several decades after it was (allegedly) historically made.113 It may be noted in the Fisheries case that on the question of whether acquiescence

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At p. 18, para. 124. There is thus an inter-relationship (see section 2.4 below) on this intertemporal matter as to protest/acquiescence with the effectiveness and notoriety requirements for a claim. Id., at p. 19, para. 131 (said to be “a matter of judgment” when such claim actually occurs). Duplique (Bourquin) (12/11/51), at p. 316. Id., at pp. 318 and 319. Id., at p. 310. See the Reply of Libya: Pleadings, vol. 4, at p. 118 (para. 38). See above n. 96. Dupuy, oral pleading, Pleadings, vol. 4, at p. 460 citing Charles De Visscher (acquiescence must not be late). See above p. 226.

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can only be assessed in a “situation existing before the dispute [which was the subject of the relevant litigation] arose”, Norway argued for practical and fairness reasons (albeit subject to strong British objection on the facts as it saw them, but not in principle) that regard – in a sort of intertemporal way – could only be had to the pre-dispute situation.114 2.4 Interrelationship of the acquiescence principle with acts of authority (enforcement) being effectively exercised As seen above,115 the requirement of acquiescence inter-relates not only with the formal declaration/publicity requirements, but also with the relevant ‘effective exercise’ of jurisdiction requirement. On the inter-relationship between effective enforcement of jurisdiction and acquiescence relative to the Alaskan coastline, some evidence at the ‘Juneau Hearings’ is instructive. There, following a question on whether the Japanese, Russians or “any other country” had objected to the claimed Alaskan lines, the US representative, Mr Nelson, replied that “[f]ormal protest or objection is not the only way in which a State may indicate its non-acquiescence”; and that so far as he knew, although there had been “no protest” to the alleged jurisdictional lines (around the Alexander Archipelago), there had been “no application of those lines to foreign shermen, and therefore no occasion for protest” (here citing arrests of Russian shing vessels within the 12 mile contiguous zone for violation of the Contiguous Zone Fisheries Act of 1966).116 As has been seen, foreign protest would not be expected where, as here, shery enforcement solely within recognised shery zones was being carried out.117 In the Cook Inlet case, as also seen, the Supreme Court ruled that a failure of foreign nations to object to a claim was not evidence of acquiescence unless it could be “shown that[the relevant governments] knew, or reasonably should have known, of the authority being asserted”.118 Thus it found (citing the UN Juridical Regime) that no acquiescence had arisen; and in similar vein, in Alaska v. US (2005), the Special Master found that as Russia, and its successor in title, the US, had not sufciently asserted authority over the waters of the Alexander Archipelago, it followed that foreign nations could not have acquiesced.119 The converse situation of effective enforcement having an alleged effect on proof of acquiescence was evident in the pleadings in Tunisia/Libya.120

114 115 116 117 118 119 120

Pleadings, Reply of 28/11/50, at p. 673, para. 510. Chapters 11 and 13. See above p. 232 at p. 8 (following a question of Senator Inoue). See above Chapter 13. See above n. 85 (emphasis added). Report, at p. 131. As was there argued (see above n. 77), “le silence des puissances face à l’exercice de ces compétences nationales sur la zone considerée” was allegedly sufcient to prove historic title to the waters of the Gulf of Gabes (emphasis added).

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2.4.1 The alleged acquiescence must concern the relevant type of exercise of authority: Alaska v. US (2005) and El Salvador/Honduras In Alaska v. US (2005), Alaska had, as seen above in the case of the ‘Marguerite incident’, alleged in its pleadings that that Britain had acquiesced in the seizure of a shing vessel (of its nationality) for attempting to sh in violation of relevant US shery laws of 1906.121 The Special Master found that this allegation “lacked merit” because, in any event, Britain immediately protested at the seizure; but also because, as seen in Chapter 13, “[f]ishery regulations” do not establish “historic inland waters”. Thus ‘acquiescence’ in their enforcement did “not sufce” to evidence historic title.122 This point was also strongly made, as seen above, by Judge Oda in his Dissenting Opinion in the El Salvador/Honduras case123 (noting that all three riparian States in the Gulf of Fonseca had claimed mere policing jurisdiction beyond their 3-mile limits).

3. How Widespread must Acquiescence/Non-Acquiescence be? Two sides of the same coin are in issue here. The rst is the degree of international acceptance necessary to create an historic title. For example, as the UN Memorandum of 1957 (on Historic Bays) asked, the question is whether the “international recognition” of historic title needs to be “universal”.124 In Tunisia/Libya, the “unaminous” recognition of historic rights in the case of the bay in question (the Gulf of Gabes) was admitted to be more difcult to obtain, and, as seen, thus often implicit.125 In Alaska v. US (2005) it transpired, as also seen, that only one foreign State might have purported

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Brief on Count 1, at p. 17. Additionally, as seen (Chapter 5, section 3.6), there is an interrelationship between the supposed ‘exceptional claim’ requirement and acquiescence. As the UN Juridical Regime implies (at p. 18), at the very least the alleged requirement of a claim being an “exception to general international law” requires knowledge by other States of this situation. Consequently, there will be a lack of notoriety if it is not reasonably possible for other States to infer what the claim’s true character is. Thus, (as seen in Chapter 13) the fact that alleged Alaskan jurisdictional enforcement in the Alexander Archipelago, in respect of sheries, was equally explicable in terms of territorial sea/shery zone claims there makes redundant any acquiescence scenario from foreign States as to any historic claim; inasmuch as such States are not thereby put on notice of the alleged ‘claim’s’ true character. As was evidenced in the Alaskan Brief in Alaska v. US (2005), the past failure to clearly indicate that the alleged Alexander Archipelago waters ‘claim’ by the US was based on historic title rather than general geographical criteria made it all the less likely that foreign nations would be put on notice of a possible US claim contrary to international law. Report, at p. 132. See also his dismissal (id., at pp. 132/3), partly for similar reasons, of the alleged acquiescence of Canada during the Dixon Entrance negotiations and in discussions concerning salmon shing in the area. Supra, p. 2 at p. 757, para. 45. (“In such circumstances, no objection by any State has ever been lodged against those three riparian State in connection with their additional claims to exercise police powers beyond the territorial sea”). Supra, p. 11, n. 53, at para. 181. See Dupuy, oral pleading, Pleadings, vol. 4, at p. 460.

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publicly to ‘support’ the alleged 1903 claim, and that was Norway in the Fisheries case; so that, even if Norway had truly ‘acquiesced’ in the alleged ‘claim’, one acquiescing State would not, in any event, evidence the level of generality of acquiescence required by international law.126 Secondly, and conversely, the question arises as to what degree of opposition to such title is required to stop such a claim arising. The UN Juridical Regime expressly raised such issues as to what kind of opposition is necessary, and how widespread it must be. It relevantly posed the question whether, for example, protest by “one or more foreign States” at any one time is sufcient to negative acquiescence, so raising the doctrinally problematic question of how widespread the opposition must be to prevent such title arising in any one case.127 The study seemed to come to no clear conclusions on this matter, apart from citing Gidel and Bourquin to the effect that “one” opposing State will not be sufcient; and saying (vaguely) that it is a “matter of judgment subject to the circumstances in the particular case”.128 It is in both such instances that the relevance of non-inclusion/inclusion of particular waters as historic in international publications may arise, particularly those of the UN: see the Special Master’s Report in Alaska v. US (2005), where he averred that the US citation of “two [UN] studies” (which did not mention the Alexander Archipelago as having historic inland waters) was to “support its position that other nations did not consider the waters of the [Archipelago] to be inland waters”.129 3.1 Academic/international litigation viewpoints on the problem of ‘counting of heads’: relevance of views of directly interested States On the issue as to the extent of acquiescence necessary for historic title to waters, Gidel130 admitted that it seemed impossible to insist that recognition should be “‘universal’ in the strict sense of the word”; but he implied at least the need for some generality of acquiescence. In a similar vein, a least one authority talks of the need for “international acquiescence” by a “representative body of States reecting international toleration of an otherwise illegal situation”.131 However even in the latter more specic 126 127

128 129 130 131

See e.g., above p. 222. At p. 17, para. 112. Such opposition may be evidenced through diplomatic protest (see above section 2.2.4) or public statement denying the prescribing State’s right, resistence to enforcement, or other ‘counter-action’. Id., at p. 17, para. 116. Report, at p. 88 (emphasis added). Op. cit., at p. 634. See Encyclopaedia of International Law, vol. II, (Max Planck Institute) at p. 713 (emphasis added). In a more modern context, the above opinions can be seen to be satised in the converse situation by the many protests relating to the USSR/Russian Peter the Great Bay claim which numbered a large number of the world’s leading maritime nations (see Strohl, op. cit., at pp. 350–352) (at least 11 of such nations). Interestingly, the later Japanese protest to the USSR regarding this claim (of 17 January, 1958), expressly mentioned that “many states, including the leading maritime countries of the world [had] lodged protests” against the Soviet claim (cited by Strohl, op. cit., at p. 354 (emphasis added)).

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viewpoint an obvious problem resides – namely as to what a “representative” body is. Bustamente132 rightly has indicated a key problem to the whole doctrine of historic waters, namely that “[n]o one species from how many and from which States [the ‘conformity’ requirement] must proceed . . .”. Bouchez is one of the few commentators who attempts to analyse this problem properly by saying:133 A complicated situation will arise if some States agree with the claim, while others disagree. Neither unanimity nor the majority principle can be the correct standards [in assessing an historic claim]. When the reactions of all directly interested nations are positive, then a right comes into existence.

Thus the attitude to an alleged claim by particular maritime powers may here be of relevance.134 Blum, for example, refers to the importance of the approval of at least the major maritime powers; and he concludes135 that “a protest raised by the main maritime powers will be sufcient to prevent a new maritime practice” arising. This matter featured in a sort of vicarious manner in the UK argument in the Fisheries case; to the effect that, for example, in case of the US historic claim to Delaware Bay, the acquiescence of major powers (here Britain and France) might lead to an inference of acquiescence by other States also.136 The converse may also arguably apply where a major maritime power protests at a claim and other States – whilst not formally protesting themselves – may feel that such a Power is making (in effect) a representative protest on their behalf. For example, in the Fisheries case137 there was an interesting British argument that not only was there no proof there that States such as the USA had accepted the Norwegian straight baseline decree as valid in international law, but that other Governments were happy to rely on the UK taking a test case to challenge it, as indicated by the number of Governments which had asked for copies of the pleadings. The views of the most directly involved States may also have an inuential role in the legitimation of any historic waters claim. For example, in Tunisia/Libya, the Reply of

132 133 134

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The Territorial Sea (1930) at pp. 99–100 (cited by Strohl, op. cit., at p. 272). Op. cit., at pp. 267, 268. See the UN Juridical Regime, at p. 25, para. 186 (“it would seem reasonable to . . . accord special importance to the other riparian State (or States)” (emphasis added)). Op. cit., at p. 170. In Alaska v. US, this factor was certainly in evidence in 1821 when Russia issued its ukase (see above Chapter 6). This ‘approval/protest’ representational factor also appears to have been seen as important in past US caselaw. For example, by Special Master Hoffmann in the Massachusetts Boundary case (nding presumed knowledge of other States of US claims, including “major European powers” (emphasis added) who would, he thought, have de facto knowledge of the (much earlier) Manchester case). In his view, even as early as 1789, both France and Great Britain, as major maritime powers of the day, could be presumed to know of the federal claim: US v. Maine, Report of October, 1984, at p. 60. Manchester v. Massachusetts is reported in 139 US 240 (1891). Reply of 28/11/50, at para. 441. Reply (by Beckett) of 17/10/51, at p. 375. It was additionally argued that the interest of other States in the Norwegian claim was probably less than that of the UK anyway.

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Libya stated that “ [t]he claim of sovereignty must be a matter of common knowledge to the international community, especially the most directly affected States, which must have acquiesced in the claim”.138 Bouchez, however, in asking whether the attitude of all States is important, or merely “certain States”, opines rather vaguely that in the case of historic claims “nearly all States will be interested because the key problem is the limitation of the freedom of the seas”;139 but he admits that this ‘interest’ is theoretical because, for example, some States will not be truly ‘interested’ in a particular regional dispute. 3.1.1 Is a majority of interested (representative) States opposing necessary for non-acquiescence? Some commentators, as seen above, have seemingly required a reasonable number of opposing States to stymie a claimed historic title, so that at least the protest of a single State, even if interested in the claim, may be insufcient.140 Blum implies on this matter that whereas a protest emanating from a single State will not indenitely hold up an historic claim on analogy with formation of customary law, not all protests can be “put on the same level”.141 In pleadings in Tunisia/Libya, it was similarly argued by Tunisia that only the acts of opposition of a certain number of interested States could stop the consolidation of historic title.142 Bouchez concluded143 that an historic right will not come into existence if the majority of directly interested States have protested against it, as he looked for acquiescence by a “representative body of States as may be regarded as truly reecting international recognition of an otherwise illegal situation”.144 He divided States with what he saw

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Pleadings, vol. 4, at p. 114, para. 31. See also Pharand, supra, p. 145, n. 25, at p. 9, who maintains that the “stricter” view of the acquiescence requirement is that “recognition or consent must come from those States that are affected by the claim in question”. Op. cit., at p. 266 (emphasis added). Bouchez, op. cit., at p. 167 et seq. For a representative set of protests, see above Chapter 6, and the Cook Inlet case, 422 US 184 at pp. 191/2 relating to the early Russian claims off Alaska; also J.B. Moore, “The Alaska Boundary” (1899) at p. 503 (“the new claim of exclusive maritime jurisdiction . . . called forth protests from both the United States and from Great Britain”). Op. cit., at p. 253. Compare the Norwegian claim in the Fisheries case that as the UK was allegedly the sole nation to press its protest, Norway was entitled to say it had already acquired a prescriptive title. In other words, Norway seems to have alleged that objection of a single State was incapable of preventing formation of historic title: see the statement by Sir Frank Soskice of 29/9/51, Pleadings, at p. 135. See Dupuy, Pleadings, vol. 4, at p. 465, who cited De Vissher (Les effectivités du droit international public, at p. 51). Op. cit., at p. 268. Id., at p. 249 (emphasis added). He went further in saying (id., at p. 258), as regards the notication requirement, that in order to provoke an explicit reaction by other States, it was desirable that the claimant State noties its claim to at least the directly affected States”. Unfortunately, though, even this ‘direct affectation’ test leads to subjective uncertainty.

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as having “direct interests”145 into two categories – neighbouring States and “more distant States with traditional interests in a certain water area”. But vagueness interposes here, as he also pointed out146 that a relevant motive for protest by a State “only indirectly injured by [a] claim” (e.g., having, it would seem, no actual navigational interference problem in the area of claimed waters) would be the fear that a “dangerous precedent for the future might result”. This latter, more altruistic, interest – aimed against attempts at creating more general international precedents – in fact underlies many past US protests on what it has seen as infringements on the law of the sea generally.147 Noteworthy on this point in the historic waters context is the sequel to the riposte of the USSR in 1958 to a prior US protest against it; to the effect that the US had acted as a sort of ‘busybody’ in protesting at its Peter the Great Bay claim because of alleged lack (through distance) of direct interest148 relating to the US. The US counterriposte in its note to the USSR149 rejected this Soviet implication, and pointed out that “[e]ncroachments on the high seas are of concern to the entire world”. The UN Juridical Regime150 similarly cites commentators such as Gidel and Fitzmaurice to the effect that not all the opposing States can be placed “on the same level”; as, for example, geographical proximity (see the next section) as well as other direct interests in a claim may be relevant.151 3.1.1.1 The supposed importance of attitude of neighbouring States It may be argued that the attitude of neighbouring States is of vital importance in proving foreign acquiescence. The predominant weight to be attached to the views of such States has sometimes appeared in past-suggested formulations of the doctrine. For example, Raestad152 opined that: “the consent of the States most directly concerned, by reason of proximity” may even bind “the States less directly concerned”. There was a similar submission at UNCLOS III (by Colombia)153 to the effect that the claimant State’s historic claim should be “expressly or tacitly accepted by . . . particularly neighbouring States”.

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149 150 151 152 153

Id., at p. 267. The alleged acquiescence of Norway in the Fisheries case, as claimed by Alaska in Alaska v. US (2005) (see above section 2.1.1.2) concerned a State, of course, geographically distant from the alleged area of claim (waters off Alaska). Id., (emphasis added). See also id., at p. 269 (the protest may arise because of a “fear of similar claims in other parts of the world”). In the Fisheries case, Norway (in the Duplique of Arntzen, 29/10/51) stated that out of the four leading States asking for copies of the 1935 Norwegian decree, including the US, none had allegedly inquired because of any interest in the Norwegian shery limit. See above section 2.2.4.1. Cited in Whiteman, op. cit., at p. 256 (“there can be no question of any rights whatever of the Government of the USA in Soviet internal and territorial waters in the region of [Peter the Great Bay], which is located many thousands of kilometres from the USA”). Of 6 March, 1958, cited by Whiteman, id., at p. 256 (emphasis added). At p. 17, para. 117. Respectively op. cit., at p. 634 and loc. cit., supra p. 133, at pp. 31–32. La mer territoriale (1913) at p. 174. O.R. 196 (1975) (emphasis added).

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This factor also seems to have been a consideration in past US practice. For example, a US memorandum of 17 September, 1963,154 citing the Alaskan waters situation, alleged that the US had not only contended that foreign shing in the area was in fact proof of “lack of acquiescence” by foreigners, but also that “the consent or opposition of some States (i.e., neighbouring or interested States) may be more important in establishing acquiescence than the actions of uninterested States”. Similarly past diplomatic ripostes of claimant States have contained reference to the positive attitude of neighbouring States on historic claims, such as the USSR note of 7 January, 1958155 to the protesting nations regarding its Peter the Great Bay claim, wherein it alleged that the fact that its waters were internal “ha[d] been recognised by the neighbouring countries of the USSR, for instance, by the People’s Republic of China”. Neighbouring States may, of course, be naturally inclined to be the most vociferous opposers of historic claims; as, for example, in the case of the US’ attitude regarding Canada’s supposed historic claim to Hudson Bay.156 Thus, in the converse situation of protest, Blum concluded that it is unrealistic to accord the same weight to a protest from a “remote country” not directly affected as compared with “[t]he geographical propinquity of the protesting State, its interests in the area to which the protest makes reference, [and] its position within the international community”, all of which factors are of “considerable signicance”.157 The UN Juridical Regime concluded that such a view was “reasonable and realistic” as opposition would in any event most likely arise from neighbouring States or from those with a “particular interest in the area”.158 3.1.1.2 Alleged acquiescence by neighbouring States in Alaska v. US (2005) The ‘neighbourhood’ factor in Alaska v. US (2005) made the attitude of Canada (and formerly the UK) to the alleged historic claim particularly important; and there was no evidence in this instance that Canada had ever viewed the US alleged claim as being an ‘historic’ one.159

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Set out in Digest of US Practice (1973), at pp. 244/5 (emphasis added). Cited by Strohl, op. cit., at pp. 352/53 (emphasis added). This claim has been opposed by the US according to T.W. Balch (‘Is Hudson Bay a Closed or Open Sea?’) in (1912) 6 AJIL, 409, whereas Canada appears to claim US acquiescence: see V.K. Johnston, ‘Canada’s Right to Hudson Bay and Hudson Strait’, (1934) B.Y.I.L. 1; and Hackworth, op. cit., at pp. 412, 413 (alleging the US continues to dispute Canada’s claim). Op. cit., at p. 170. Note in this regard the identity of the States which protested at the Russian ukase of 1821: see Chapter 6 above. At p. 18, paras. 117/8 (emphasis added). To the contrary, all the archival evidence, e.g., relating to negotiations on the Dixon Entrance, indicated Canadian non-realisation of any past US ‘inland waters’ claim to the Archipelago’s waters. Indeed, it is not insignicant that Judge Read (of Canadian nationality) in the Fisheries case was apparently unaware of any claimed US straight baselines around the coast of Alaska, despite presumably being acquainted with all the pleadings in that case. For in his Dissenting Opinion (supra, p. 2, at p. 539) he specically referred to the analogous geographical situation of coastal archipelagoes “in the panhandle of Alaska” where (impliedly at least) he seems to have thought no existing straight baseline system pertained. Similarly, at the time of the alleged ‘claim’ being made in the ABT case in 1903, Britain (as Canada’s

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4. Does the so-called Acquiescence Requirement merely Entail an erga omnes Application? Because of the abovementioned uncertainties on the supposed requirement of acquiescence for proof of historic title, questions arise as to whether, in fact, the status of historic waters only applies subjectively on a bilateral (or multilateral) ‘quoad hunc/hos’ basis – according to which State or States have expressly or tacitly agreed to/acquiesced in the claim on an analogy with historic rights at sea – such as historic shery rights on the high seas160 – or as some form of estoppel. The latter principle, for example, was raised by Libya in the Tunisia/Libya case on the question of international acquiescence to the alleged historic claim by Tunisia to the Gulf of Gabes, where it was alleged that Tunisia put the matter specically as one of acquiescence as if to create some sort of “estoppel” against Libya.161 As compared with this, the past conventional doctrine seems to have been that once there is some (sufcient) element of international acquiescence, the ‘historic’ status applies objectively erga omnes, i.e., against all States in a blanket fashion.162 As Blum encapulates the matter,163 “[i]t is . . . more controversial whether such an exceptional title is valid erga omnes, or only against States which have either expressly assented to, or at least tacitly acquiesced in it”. Fauchille also expressly raised the question whether a claim in the case of an historic bay is “obligatory vis-à-vis those states which have simply abstained from protesting”; but he seemingly sidelined the central problem here, although concluding that it is doubtful if such States’ abstention might be equivalent to consent.164 In the El Salvador/Honduras case, El Salvador implied that an historic claim might initially be subjectively applicable, but would eventually become an objectivised one erga omnes.165 For it claimed in its pleadings that even if the 1917 judgment initially

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predecessor in title) certainly did not “acquiesce” in any US claim as alleged in the Alaskan pleading (see above section 2.1.1.1.). In any event, it would have been against Britain’s interest to do so because of the possible threat arising therefrom in terms of navigational freedom to the headwaters of rivers in Canada. The US Response in Alaska v. US (2005) to the Plaintiff’s First Set of Interrogatories etc. of 1 November, 2001 (at p. 2) cited detailed evidence as to why no British acquiescence occurred. See above Chapter 1, section 1.2, and discussion of this concept in the Fisheries Jurisdiction cases. Blum (op. cit., at pp. 311 & 313) in fact differentiated “non-exclusive historic rights” (e.g., shing rights in another’s seas), as rights only “inter partes” rather than claims erga omnes, though likewise based on (tacit) “acquiescence”. Reply of Libya, Pleadings, vol. 4, at p. 118, para. 38. See, e.g., Scovazzi (supra, n. 76) (“une valeur erga omnes”). Op. cit., at p. 169. Traité de droit international public, Book I, Pt II, at pp. 381/2, cited by the UK in the Fisheries case (Reply 28/11/50, at p. 627, para. 452); and see Barrie, ‘Historical Bays’ in (1973) 6 Comparative and International Law Jnl. of Southern Africa, 39, at p. 62 (“during the period of the initiation of the title, the claimant State aspires to tranform it into an absolute title erga omnes, i.e., against the whole world”). Memorial of El Salvador, at pp. 176/77, paras. 13. 2 and 3.

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only bound the “direct parties to the litigation”, the legal status of the Gulf of Fonseca recognised there had since been “consolidated in the course of time to “extend to third States”, including the major maritime States, as an “objective legal regime”.166 Despite this, El Salvador also argued that the “decisive matter” arising from the 1917 case was that of “acceptance by Honduras” of the legal status of the Gulf;167 so that in the (then) more than 70 years since the judgment, Honduras had not only not questioned or made a reservation respecting the “common ownership” of the waters, but had “continuously taken advantage of the common character “ of them, through navigation and shing activities.168 It was evident, therefore, that El Salvador used a fall-back argument in the case, which fell short of an ‘erga omnes’ position, to apply the historic regime against Honduras. 4.1 The ‘opposibility’ doctrine effectively applies to historic maritime title In the light of the above discussion, the doctrine of historic waters seems, in many, if not most, instances, to work on an ‘opposibility’ basis founded on the ‘quoad hunc’ principle. Most particularly this would entail that a ‘persistent objector’ to a particular historic claim would be able to make that claim inapplicable quoad itself even if the rest of the world community has acquiesced in same; but the matter is admittedly unclear.169 Just as the general doctrine of opposibility can be said to have existed in the law of the sea in times of uncertain development (e.g., over territorial sea limits) in respect of general customary law development, so also it is doubtful whether all – or, indeed, any – past claims to historic waters have operated on an ‘erga omnes’ basis. As, for example, O’Connell, asks, against whom is the historic interest ‘adverse’ – against the “community of nations” or merely “directly against interested States”?.170 Likewise, in converse fashion, States which have expressly or impliedly accepted an historic title may be estopped from denying that title as applying against themselves, as seen above.171 In the Fisheries case, for example, the UK opined172 that a State might recognise an excessive claim by a “unilateral act”. Thus it is also quite possible for this factor to apply by treaty provisions or (outside any treaty context) as a form of ‘recognition’; i.e., xing the status subjectively for one or certain States which recognise the otherwise illegal claim and so making the historic status of the waters in question opposable quoad themselves.173

166 167 168 169

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Id., at p. 177, para. 13. 3 (emphasis added). Id., at p. 177, paras. 13. 3 & 13. 4. Id., at, pp. 181/2, para. 13. 8. For example, Bustamente says, more generally it seems, that it has not been specied (in the historic waters doctrine) “what is the legal value of one or more divergent opinions” (op. cit., at p. 99, cited by Strohl, op. cit., at p. 272) (emphasis added). Op. cit., at p. 427 (emphasis added). As indicated by Fauchille, op. cit., at p. 382. Pleadings, Reply of 28/11/50, at p. 609, para. 436, though the UK also argued that where such “express acquiescence” or consent, is lacking, an inference of acceptance could be “inferred” by “the general acquiescence of other States”. On such express consent to/recognition of, historic title, see e.g., the treaties concerning the

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Gidel, for one, seemed to take a ‘half-way house’ approach on this dilemma. He admitted174 that recognition of a usage need not be express (or universal) as seen above; but he opined that even where there is insufcient ‘acquiescence’ to lead to an historic claim being generally recognised, it may still be applicable, more specically, on a quoad hunc basis. Certainly the idea of ‘opposibility’ has been raised in counteraction of excessive claims in more recent times in state practice, as, for example, by the US in response to the Gulf of Sirte claim by Libya,175 seemingly with a view to making such a claim invalid as against an individual clear protester such as itself; the US protest against such a claim thus allegedly rendering it “unrecognised by and unenforceable against the [US]”.176 This concept was also raised in the Tunisia/Libya case, where Libya contended that the alleged Tunisian baselines were “not opposable to Libya” (largely in a context of an alleged historic claim); just as in the Fisheries case, Norway specically accepted177 (as also did the ICJ) that “if a new claim is formulated by a State, this claim is not opposable against another State which has from the beginning and in an unequivocal manner opposed it”. Similarly it may be the case that a State which has itself made an excessive historic claim may be impliedly obliged to recognise a similar exceptional claim made by another.178 The corollory of this possible analysis of historic title is that although a few objectors to an ‘exceptional’ maritime claim may not stop a general historic title developing quoad alios, they may at least – on an analogy with the ‘persistent objector’ idea in customary law – prevent that status applying quoad se (i.e., to themselves).179 One may note here the perceptive comment in the pleading of Sir Frank Soskice for the UK in the Fisheries case; namely that the question there was whether (since 1800) Norway had acquired an exceptional historic title enforceable “in particular, against the United Kingdom”.180

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White Sea, where the initial protestors to claimed Soviet historic waters there (UK, Norway and Germany) all ultimately recognised, by treaty, Soviet historic title (cited by Strohl, op. cit., at p. 267). Cf. the background treaty ‘consents’ to Russian jurisdiction in the Alexander Archipelago under the terms of the US and GB treaties with Russia in the 1820s (discussed above in Chapter 7). Op. cit., vol. III, at pp 634/5. See, e.g., Y. Blum, ‘The Gulf of Sidra Incident’ (1986) 80 A.J.I.L. 668, at p. 674. See Francioni, ‘The Status of the Gulf of Sirte in International Law’(1984) 11 Syracuse Jnl of Intl Law & Comm. 311, at p. 326 (emphasis added). Pleadings (by Bourquin) of 12/10, 51 at p. 308 (emphasis added) and supra, p. 2, at p. 71, para. 97 respectively. Francioni, supra, n. 176 at p. 325. Cf. Bouchez, op. cit., at p. 258 on the difference between claims under “general principle” and claims of a “more unique character”; and Churchill & Lowe, op. cit., at pp. 8, 9. Citing the British submission at the 1930 Hague Codication Conference to the effect that “if a tacit or express consent, though very general, is not unanimous, the rights of the nonconsenting States continue to be reserved”: Pleadings, Reply, 28 /11/50 at p. 635, para. 461 (emphasis added).

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4.2 Express consent/recognition may telescope the time element, so overriding the ‘historic’ requirement In the light of a quoad hunc/opposibility analysis as outlined above, express recognition of an ‘historic’ claim obviously by-passes the need for the time factor being satised in such cases. Thus on the idea of ‘consent’ to, and ‘recognition’ of, an historic claim, the UN Juridical Regime181 rightly points out that such foreign acceptance makes the historical element irrelevant. Indeed, in the pleadings in the Fisheries case,182 it was stated that the UK was of the view “that an exceptional title may be established without proof of long international usage where proof can be brought of the express acquiescence of States either in a treaty or in unilateral acts of recognition”. Thus, for example, Greece seems impliedly to have recognised Italy’s Gulf of Taranto ‘historic’ (postwar) claim (see Map 4) following a maritime delimitation treaty in the region.183 And, as regards past US practice in the matter, see the statement of the Central American Court of Justice in the Gulf of Fonseca case184 which referred to a US statement of February, 1914, saying the US Department of State was “not disposed to controvert” that the Gulf was a “territorial bay” (which the Court interpreted as “evidently” implying “an express recognition of the unequivocal claim of sovereignty” here).185 Similarly, in the case of the Libyan claim to the waters of the Gulf of Sirte, certain Arab States appear to have given it express approval.186 This matter was also of some apparent importance in Alaska v. US (2005), as Alaska had alleged in its pleadings that Britain had actually recognised the alleged US internal waters in the 1903 ABT case and since (as also allegedly had Norway).187 It follows that ‘acquiescence’, if satised in a positive sense, may compensate for the comparative brevity of time during which an alleged historic claim has been made.

181 182 183

184 185

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At p. 16, para. 110. Pleadings, UK Reply of 28/11/50, at p. 632. See Ronzitti supra, p. 101, at p. 282. It may be noted also that Colombia and Costa Rica, in their delimitation treaties with Panama, did not object to Panama’s claim to the Gulf of Panama being historic in 1957: cited in Roach & Smith, op. cit., at p. 47, n. 25. Cited by Jessup, op. cit., at p. 406. I. Scobbie (loc. cit., supra, n. 81, at p. 258) points out that recent US statements “have denied that it has ever recognised the Gulf of Fonseca as an historic bay”: and indeed that the US only originally recognised it as a “territorial” bay, not specically as an “historic” one. See T. Scovazzi, op. cit., supra, n. 76, at p. 329 discussing the Gulf of Sirte claim, and pointing out that, for example, Syria declared this was an historic Arab gulf at the UN Security Council in 1986. See Alaska’s Exceptions, at p. 33 (the evidence of acquiescence was “ even clearer, for not only did foreign governments know of and tolerate the [US’s] claim . . ., they afrmatively agreed with it and cited it to support their own maritime claims”; and that in 1951 Norway “afrmatively relied” on the US claim in the Fisheries case (id., at p. 34).

Chapter 15

VITAL INTERESTS (‘VITAL BAYS’): A ‘FOURTH’ FACTOR RELEVANT TO EVIDENCE OF HISTORIC WATERS? 1. Denitions of ‘Vital Interests’ and ‘Vital Bays’ “Vital interests” are dened by Bouchez1 as “interests to which such a great value is attached by a State that their realisation is seen a necessity for the existence of a national community”. Closely allied to this concept is the phenomenon known as the ‘vital bay’. Some publicists of the past have treated the terms ‘historic bays’ and ‘vital bays’ as being interchangeable;2 but in fact “vital bay” is a term often used by more recent Third World claimants to historic waters. The substitution of the word ‘vital’ for ‘historic’ is signicant. For, as Bouchez says more generally,3 the concept of a vital bay is based on an “entirely different” theory because “the historic element is entirely lacking”. Bouchez4 claimed that it was Dr Drago in 1917 who “perhaps for the rst time” 1 2

3 4

Op. cit., at p. 297. E.g., Fauchille, in Traité de droit international public, vol. I (1925), at p. 382 (cited by Strohl, op. cit., at p. 271). On the history of the doctrine of ‘vital bays’, which allegedly goes back to a 1922 ILA Conference, see Ronzitti, “Is the Gulf of Taranto an Historic Bay?” (1984) Syracuse Jnl. of Int. Law and Comm. 275, at p. 286. Op. cit., at p. 298. Id.

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formulated the idea that “vital interests could be considered as a justication for claims to parts of the sea”. Dr Drago had held in the North Atlantic Fisheries Arbitration5 that historic bays were a “class distinct and apart”, with “particular circumstances such a geographical conguration, immemorial usage and, above all, the requirements of selfdefense” justifying such a “pretension”. As to what these ‘interests’ may comprise, Bouchez commented6 that in the Gulf of Fonseca case (1917), the Court called attention to three kinds of circumstances, namely “historical factors, geographical factors and vital interests”; and that the latter category included “especially economics and defence”.7 Such factors have been raised since then in other fora. For example, at the 1930 Hague Codication Conference, a few States mentioned concepts of security and defence and even the “well-being of the States” as being relevant.8

2. Past Reference to ‘Vital Interests’ in US Caselaw and Elsewhere The early US case (concerning the Alleganean), Stetson v. US,9 clearly evidences not only the stress on ‘other interest’ factors such as geography (“entirely encompassed by our own territory”), but also defence (“can we permit belligerent operations between foreign nations within the shores of this bay?”). However, as McDougal and Burke rightly comment10 on such early cases (here from 1793), “[i]t is both relevant and necessary to consider . . . that the opinion was given at a time when there was not the slightest notion of historic bays or of any limitations on claims to bays”. Reference in the later US tidelands cases to such factors is discussed below. In the Gulf of Fonseca case also, the Central American Court of Justice appears in 1917 to have made strong reference to “vital interests”, when it said that in order to determine the Gulf’s international status it was “necessary to specify the characteristics proper thereto from the threefold point of history, geography and the vital interests of

5 6 7

8

9

10

See Scott’s Hague Court Reports, 141, at pp. 199–200. Op. cit., at p. 212. Id., at p. 212. He enumerates (id., at p. 258) the “various economic considerations” and the “strategic aspect” where the Court held (at p. 705) that the stategic situation was so advantageous to the riparian States “that [they] can defend their great interests therein and provide for the defense of their independence and sovereignty”. See Blum, op. cit., at pp. 83/4 & 182 (where he views such extraneous considerations as a “fallacious”). On defence aspects, see Bouchez (op. cit., at pp. 291–294) who cites Dr Drago in the 1910 North Atlantic Fisheries Arbitration emphasising the “defence element” as an important factor in historic waters claims; but he rejects (id., at p. 293) such considerations as a sole basis of claim because of their subjectivity. McDougal & Burke (op. cit., at p. 363) point out that at the 1930 Hague Codication Conference, none of the drafts adopted such vital interest factors (though these were referred to by some delegates – e.g., by Portugal (LN Doc C. 74. M. 39.1919, V, at p. 184) (“security and defense”). Moore’s Arbitration, vol. iv, at p. 4332; cited by Strohl, op. cit., at p. 277. Goldie (supra p. 196, n. 154, at p. 270) points out that Delaware Bay was in fact rst claimed “to vindicate [US] neutrality”. Op. cit., at p. 360.

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the surrounding States”.11 In this context, the Court mentioned such diverse matters as construction of a railway for inter-oceanic trafc, the Gulf’s commercial importance and its strategic situation (defence interests). Despite this, the decision may be explained today as in reality one where, although vital interests were mentioned, the need for historicity (i.e., sufcient passage of time) and acquiescence by other nations was still required.12 As Ronzitti points out regarding the case, although the Court mentioned “vital interests”, it “did not omit consideration of historic titles”.13 In the North Atlantic Fisheries case (1910), the arbitral tribunal was to similarly refer to conditions of national and territorial integrity, of defence, of commerce, of industry which were all vitally concerned with the control of bays penetrating the national coastline.14

3. Types of Vital Interests: Excessive Past Stress on Geographical Considerations Undoubtedly, early claims to historic waters (as for example, in the US) made excessive and simplistic reference largely to geographic factors.15 The same early simplistic reference to, and over-concentration on, geographical factors alone for historic status can be seen in the JCPC decision in 1877 over Conception Bay (Direct US Cable Co v. Anglo-American Telegraph Co)16 where the British Court, partly as a matter of treaty interpretation, found the bay to be historic largely because, it seems, of it being “landlocked”, and belonging to the nation possessing its shores. 11

12 13 14

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11 A.J.I.L. (1917), at p. 700; cited by Blum, op. cit., at p. 185. He seems to (controversially) have regarded articulation of vital factors in the 1917 case as having had some further utility; namely (and somewhat paradoxically) in helping to clarify the law on historic title and possibly helping acceptability of claims vis-à-vis other nations (op. cit., at pp. 259, 260). See Blum, op. cit., at p. 186. Supra n. 2, at p. 287. Scotts, Hague Court Reports, at p. 187. Blum puts the matter in a broader context in discussing the JCPC decision (see infra, n. 16) in the case of Conception Bay, which talked of the “combined strength and cumulative effect” of such types of considerations causing the Court to reach its historic waters conclusion, including now-accepted conventional requirements in international customary law, such as “acquiescence” in the claim by the “international community” (op. cit., at pp. 258, 259). Strohl (op. cit., at p. 272) notes, for example, that Hyde (op. cit., at p. 482) puts “emphasis” on this factor. (1877) L.R. 2 App. Cas. 394 (“where the conguration and dimensions of a bay are such as to shew that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory”). See Blum (op. cit., at p. 260) who mentions the elements of “conguration” and “defensibility” being there relied on by the JCPC. Cf. the Special Master’s Report in US v. California (October, 1952, at p. 33) (“the word ‘bays’ in the Californian Constitution was interpreted to embrace the entire area of bays indenting the coast, regardless of their size” (he actually refers to the analogy in the North Atlantic Fisheries Arbitration (at p. 34); but where the Supreme Court viewed mere past mention in the Californian State constitution to “bays” did not of itself entitle California to claim some of its bays as historic (381 US 139, at p. 175 (1965)).

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This geographical stress has also been reected in more modern claims. For example, in an Australian context, Edeson points out regarding Australian judicial precedents on historic bays, that mere reference to decriptions such as “gulfs and bays” in the original statutes and executive instruments setting up the colonies, indicating that they are a part “of the territory of State in constitutional law”, has been subsequently been (simplistically) interpreted as supporting “an Australian claim in international law”.17 Accordingly, Bouchez emphasised that claims to historic waters cannot be made “merely by invoking a particular geographical conguration of the coast”; but that “the geographical situation can play a part in addition to other [justicatory] arguments”.18 The Alaskan pleadings in Alaska v. US (2005) detailed a lengthy list of so-called ‘vital interests’ in the case of the waters of the Alexander Archipelago.19 As they stated: While Southeast Alaska is made up of many islands, it is a coherent region spotted with communities with shared geographic features, weather, lifestyles and history. The marine waters that join these islands and their communities connect them so closely that they serve just as a highway system would in the contiguous 48 States. Further the enclaves within these channels and straits are quite close to the land areas that surround them on all sides. . . . The waters of Southeast Alaska are so much a part of the State – and vital to the ow of commerce and transportation of residents within it – that the effect of recognising the enclaves would be similar to creating large areas of exclusive federal jurisdiction within Massachusetts or Nebraska.

This extensive list of factors set out by Alaska is typical of the types of ‘vital interests’ which tended to feature in the older claims and caselaw as set out above. It smacks of the Norwegian argument in support of its claims in the Fisheries case – summarised by the ICJ20 as being “founded on the vital needs of the population” (i.e., geographical enclosure and propinquity of the waters, as well as domestic navigational and commercial importance). 3.1 The judicial consideration of related Alaskan claims in US caselaw and US v. Alaska (2005) The Alaskan Brief 21 in the case cited with approval what the US Supreme Court had said in the Alabama and Mississippi Boundary case;22 namely (in addition to the three normal requirements for historic title in international law): 17

18 19

20

21 22

Supra p. 164, n. 12, at p. 300 (emphasis added). This approach was typied in Raptis v. South Australia (1977) ILR 32. Op. cit., at p. 297. Alleging (Brief, at p. 8) that the “question whether the pockets and enclaves in the midst of Southeast Alaska [were] historic waters [was] strikingly similar” to the question presented in the previous US caselaw (see below n. 22). Supra p. 2, at p. 142. The UK admitted in the Fisheries case, that in theory the passage of time (for historic title) usually acts in conjunction with other factors – such as geographical, economic or defence considerations (Pleadings, Reply of 28/11/50, at p. 676, para. 511). At p. 12. 470 US 93, at p. 100 (emphasis added), referring to the UN Juridical Regime, id., at p. 102.

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. . . there is substantial agreement that a fourth factor to be taken into consideration is the vital interests of the coastal nation, including elements such a geographical conguration, economic interests and the requirements of self-defense.

This dictum was also to be cited by the Special Master in Alaska v. US (2005), where he noted that Alaska had listed “all the elements listed [as above-quoted] to support its [historic] claim”.23 As he said:24 With respect to geographical conguration, Alaska says that the waters . . . bear a closer relationship to the coastal mainland than they do to the open seas . . . the Archipelago [having] calm waters shielded from ocean waves by its numerous islands. As for economic interests, Alaska notes that the waterways within the Archipelago serve as the region’s roads and that the inhabitants of the area have typically derived their living in one way or another from the sheltered waters. . . . On the issue of self-defense, Alaska says that effective efforts to protect Southeast Alaska must begin, and have historically begun, on the outer edge of the . . . Archipelago.

He then cited25 the “different view” of the US federal side; namely that the “geographic conguration of the “Archipelago counts against inland water status because the waters of the . . . Archipelago are open at both ends and afford important international routes of travel”, contrasted, for example, with the waters of the archipelago of the Mississippi Sound – “a cul de sac little used by oceangoing vessels”. He also cited26 the countervailing US argument that “economic considerations [did] not bolster Alaska’s claim because Alaska would not benet from the power to exclude vessels from the waters” (particularly in relation to “foreign cruise ships”); and, “most signicantly”, the US, as the “world’s leading naval power” had a “national defense interest in consistently supporting freedom of navigation domestically and abroad”.27 He concluded on the facts28 that based on these considerations as enunciated by the US federal side, “recognising the waters of the . . . Archipelago as inland waters [was] not vital to the interests of the [US]”; as the US would not “gain much of value from the power to exclude foreign vessels from making innocent passage through the waters”; and that, treating the waters as “part of the [US’] territorial sea” would not prevent the [US] from reaping the economic benets of the region”; and would “not prevent the [US] from barring hostile foreign naval vessels” for non-innocent passage.29

4. Few Clear Past Examples of ‘Vital Interests’ Claims in State Practice The comparative lack of state practice on this issue in more recent times strengthens the conclusion below on the subsidiary role of vital interests in the doctrine of historic 23 24 25 26 27 28 29

Report, at pp. 133/4. Id., at p. 134. Id., at p. 134. Id., citing from the US Count 1 Opposition at p. 43. Id., at pp. 134/5. Id., at p. 135. Id.

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waters. One of the few good examples of a claimant State pleading, in more recent times, ‘vital interests’ as an alleged basis of historic claim was the USSR in a note of 7 January, 1958;30 wherein it mentioned the waters of Peter the Great Bay as being internal “owing to the special geographical conditions of the Bay and its signicance in economy and national defence”. In fact Strohl comments31 that past Soviet historic waters claims generally, even in more recent times – such as to the White Sea – were based on “economic considerations pure and simple”. Reference to such ‘vital’ interests has, indeed, been implied in most past Russian claims, e.g., in the Siberian seas which allegedly constitute gulfs and “are of exceptional economic and strategic importance to the Soviet Union” having “over a long period [been] used by Russian seafarers”.32 Some leading ‘protesting nations’ have, in the past, expressly decried use of such economic and defence interests put forward by the USSR.33 More often, however, such claims have emanated from Third World States; as, for example, in the Kenyan claim on 6 June, 1969 to Ungwana Bay (otherwise known as Formosa Bay),34 which was then declared an “historic bay constituting internal waters” in order to “safeguard the vital interests of the inhabitants of the coastal region”. The ‘defence’ and ‘vital interests’ factor was also particularly explicit in the attempted historic claim by Libya to the Gulf of Sirte, incorporation of which was (allegedly) of vital interest to Libya,35 and was “crucial to [its] security”; but even this also stated more traditional aspects of the historic waters doctrine; namely that “through history and without dispute, [Libya] has exercised its sovereignty over the Gulf [of Sirte]”.

5. ‘Vital Interests’ are not an International Legal Requirement for Historic Waters The concept of ‘vital interests’ is, truly analysed, not another international requirement for proving an historic waters claim. The UN Juridical Regime suggested36 that in addition to the three conventionally-required factors for historic waters, “a fourth is sometimes mentioned”, namely whether the claim can be “justied on the basis of economic necessity, national security, vital interest or a similar ground” – what is usually summed up generically as the “vital interests” requirement. When the UN study inquired more deeply into the vital interests concept, it cited the abovementioned dis-

30 31 32

33 34 35 36

Cited by Strohl, op. cit., at p. 352. Id., at p. 267. Cited by Blum, op. cit., at p. 63. See also W.E. Butler, The Soviet Union and the Law of the Sea (1971) at p. 107 (“Soviet jurists dene ‘historic waters’ as those having a special economic or strategic signicance”). Other States alleged to have made such claims are Argentina, Uruguay, Panama, Australia, Gabon and Guinea (listed by Francioni, supra p. 244, n. 176, at p. 323). See Whiteman, op. cit., vol. 4, at pp. 250–258, and Ronzitti, supra n. 2, at p. 285. See above Chapter 12, n. 57. See, e.g., Goldie, supra n. 9, at pp. 227, 287. At p. 13, para. 81.

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senting words of Dr Drago in the North Atlantic Fisheries case;37 and concluded that it “hardly seems appropriate to deal with [such] vital needs in the context of ‘historic bays’ ”.38 Blum also stressed the fact that Dr Drago only accorded such ‘vital’ interests some value in conjunction with the assertion of sovereignty by the claimant State.39 Such factors would certainly not be viewed as valid in themselves as the doctrine of historic waters later developed. 5.1

Reasons why ‘vital interests’ are not a requirement for historic waters

Bouchez gave as reasons for rejecting a vital interests claim alone to historic waters the fact that such a claim ignores the general interest of the community of states, for example, by (in his view), bypassing the acquiescence requirement; and that such interests are often difcult to determine by “objective standards”.40 Similarly Gidel41 described such claims as “arbitrary” and subjective to the needs of the riparian State. Most recently, the Alaskan pleadings in Alaska v. US (2005) have, as seen above, evidenced this subjectivity in full measure.42 Most damning of all, however, is that the fact that concept bypasses the time requirement. The UN Juridical Regime, for example, viewed the ‘vital interests’ doctrine as tending to justify a claim without the need of evidence of “immemorial usage”.43 As Goldie comments,44 “to label [such bays] so does unnecessary violence to the requirement that this characterisation must have a meaningful basis in history”. Blum makes a similar complaint over the concept ignoring the historicity element.45 This ‘shortcircuiting’ of the ‘historicity’ principle is the explanation of more recent (e.g., postwar) claims to so-called “vital bays”. As the Juridical Regime rightly says,46 this view 37 38

39

40 41 42 43

44 45

46

Id., at pp. 19/20, para. 134. Id., at p. 20, para. 139. See also François at the 1958 Law of the Sea Conference in his statement to the UN Secretariat (set out as an Annex in Strohl, op. cit., at p. 322), where one of the problematic questions he posed was “[c]an the vital interests of the State be the sole root of title?”. Op. cit., at p. 180. He also pointed out (id.) that in old US historic bay cases, such as those concerning Chesapeake and Delaware, such particular circumstances were also put forward then. Op. cit., at p. 305. Op. cit., vol. III, at p. 635. Supra section 3. At p. 20, para. 135, citing Borquin, it agreed that historic title cannot be claimed where the historic element is “wholly absent”. See also Scovazzi op. cit., supra, p. 118, n. 6, at p. 331, n. 17, where he comments that that ‘vital interests’ may be put forward as an alternative to immemorial usage; and Zimmerman who has criticised the concept as “a contradiction to the doctrine of historic bays,” and so a misappliance of the doctrine there undermining, in particular, the “time requirement” (supra p. 166, n. 28, at pp. 782/83). Supra n. 9, at p. 227. Op. cit., at p. 182. However, as Mr Garcia-Amador contended before the ILC in 1955, the historicity concept only benets States having a long history: ILC Yearbook (1955), vol. 1, at p. 210. At p. 20, para. 138. See also McDougal & Burke, op. cit., at pp. 358/9 (by denition the historic bay concept “has no reference at all to emerging needs and aspirations”). Dr Drago’s

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appeals “to States which have achieved independence rather late and therefore are not able to base [their] claims on long usage”. However, even in this ‘post-colonial’ situation, new states can possibly “invoke the history and practice of their predecessors” by way of succession to historic rights.47 5.2 The subsidiary role which the concept plays in proof of historic title: no separate category of “vital bays” or “vital waters” 5.2.1 Mixed views in the US tidelands cases A subsidiary role for ‘vital interests’ was adopted early in the US tidelands cases. For example, the Report of the Special Master in US v. California, whilst referring to the voluminous Californian State evidence dealing with “the geography, the history and the economic importance of the water area in dispute”, concluded that in the absence of any evidence of exclusive jurisdiction in these waters “the testimony [was] irrelevant to any issue [there] presented”: it would only be relevant “to the question whether these areas present special characteristics such as would justify in international law an assertion of exclusive sovereignty”.48 In comparison, as seen above, the Supreme Court’s treatment of historic title in the Alabama Mississippi Boundary case was somewhat anomalous, as it might be seen to have given, in practical effect, too much weight to ‘vital interest’ factors, including defence. The Court, however, did there cite approvingly the views of the UN Juridical Regime (opining that such factors were not seen as “relevant to the question” (of historic bays) and could “fortify a claim to ‘historic bay’ status that is based on usage”).49 On a literal reading the US Court seems to have stuck to the proper rules, implying, for example, that there must be historicity present (i.e., “usage”, including exercise of “sovereignty over the Sound . . . throughout much of the 19th century”).50 The ‘vital interests’ there specied were thus still seen as less important than the three main conventional requirements.51

47 48 49 50 51

motivation in the North Atlantic Fisheries Arbitration, as Goldie points out, was to protect claims to Latin American historic bay claims in fairness to “newly decolonised States” (Goldie, supra n. 9, at p. 227). Francioni, supra n. 32, at p. 322. See below Chapter 16. Report of October 1952, at p. 39. 470 US 93, at pp. 105/6. Id., at p. 106. Even defence issues were taken into account, namely that Missisippi Sound had been defended by US-constructed fortications (id., at pp. 104–105), as well as “geographical conguration” and “economic interests”. The Court noted (id., at p. 103) that “the historic importance of Mississippi Sound to vital interests of the [US], and the corresponding insignicance of the Sound to the interests of foreign nations, [lent] support to the view that Mississippi Sound constitutes inland waters” (emphasis added). Some commentators have attacked the case as going too far: see, e.g., Zimmerman, supra n. 43, at p. 782.

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5.2.1.1 Alaska v. US and the subsidiary role of vital interests In the federal litigation context of Alaska v. US (2005), even Alaska had to admit that the ‘vital interests’ doctrine was not vital to an historic claim; but it argued52 that factors such as geographical conguration, economic interests and self defence “reinforce[d]” a nding that the Alexander Archipelago comprised historic waters. The Special Master, seems to have accepted in this most recent US ‘historic waters’ case that “vital interests” may, in principle, have some part to play as evidence of historic waters; as he added that, in effect, the US federal authorities might have formerly slept on their rights in this regard as to denial of the relevance of same; and that “perhaps” the US should have made arguments against the doctrine in the earlier case of Alabama and Mississippi Boundary.53 5.2.2 Conclusion as to the subsidiary role of vital interests It follows that the better view is that the role of vital interests is “only one of the contributory evidentiary elements in the establishment of historic title”.54 As Bouchez concludes, “economic, strategic, and political interests alone can never justify [historic claims]”.55 Signicantly also, in the limited discussion on historic title at UNCLOS III,

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E.g., in its Exceptions, at p. 35. Report at p. 135, fn. 35. Relating to that earlier case, the Special Master opined that “the Court’s opinion” suggested that the US had conceded that Mississippi Sound was “an internal waterway of commercial and strategic importance” instead of arguing (unsuccessfully) that the Court should not consider this of importance “in deciding whether [the Sound] was a historic bay”. The Supreme Court in Alaska v. US (2005) referred to the Court having previously considered the ‘vital interests’ of the US “in designating waters as historic inland waters” (545 US 75, at p. 82). Blum, op. cit., at p. 186. Although he described the 1917 Court’s considerations in this respect in the Gulf of Fonseca case as “certainly correct” (and referred back to the old cases in support such as the Delaware Bay situation), he nonetheless conventionally reiterated the traditional rule that “so-called ‘vital interests’ of the coastal State, taken in isolation, do not appear to have been recognised in the past as a sufcient ground for the acquisition of an historic title, and were relied upon only in conjunction [his emphasis] with all the other considerations . . .”. Blum also states (id., at p. 178), regarding Chesapeake Bay, that where, as in this case, the territory “encloses a bay almost completely” and is “entirely surrounded by [US] territory”, it “will in all likelihood have the approval of foreign States in the assertion that its interests may be severely prejudiced by treating such a bay as part of the high seas” (emphasis added); but he still goes on to state (id., at pp. 178/9) the conventional rule that such claimed “legitimate interests” (here geographical etc.) are not the legal basis of an exceptional claim, but may merely be taken account of in assessing its validity. Op. cit., at p. 297 (emphasis added). He cites Gidel (id., at p. 301 (op. cit., vol. II p. 635)) to the effect that “such an exceptional right can never be justied by merely referring to the vital interests of the coastal State”. Likewise, see Edeson (supra n. 17, at p. 295) (“[t]he better, and more widely accepted view, is that the existence of vital interests may strengthen an historic claim, but will not alone permit an enclosure of the high seas”). Even one of the counsel for Norway in the Fisheries case seems, in his writings, to have accepted this basic principle (see

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no mention was made of vital interests in isolation, but only as the basis of a claim to exercise exclusive rights.56 Such a down-graded role for vital interests is supported by the examination of such issues in the international legal context of the El Salvador/Honduras case. Here the ICJ interpreted the 1917 Gulf of Fonseca judgment as referring not only to “vital bay” aspects (such as strategic and defence requirements of the coastal State, so “importing a further reason”), but also “[o]ther reasons” which are the “usually recognised ones”, such as acquiescence.57 The Court thus made it clear that such former ‘vital interest’ considerations are still essentially extraneous to the contemporary legal requirements for historic title. Thus the true role of vital interests in the case of historic waters would appear to be no more inuential than in other aspects of the law of the sea. For example, Bouchez analogised the role of vital interests in the context of Art. 4 of the TSC of 1958 relating to the drawing of particular straight baselines: namely that “national economic interests as such may not be considered as a justication [for a sovereign maritime claim], but that they nevertheless are of great interest as a co-factor for the creation of particular territorial rights”.58 5.2.3 The concept of vital interests is outdated It may be said that the whole concept of ‘vital’ waters is now an anachronism anyway. As, for example, some writers have pointed out, such ‘vital’ interests may now be catered for “under alternative legal concepts to that of historic bays”.59 The US has taken this attitude in relation to alleged foreign historic waters claims in more recent years, such as those of Australia. As the US stated in a protest note to Australia of 10 April, 1991 (hinting at underlying vital interests): “[t]he United States is of the view that, with the increased maritime jurisdiction now permitted under customary international law reected in [the LOSC] . . ., no new claim to historic bay or historic waters is needed to meet resource and security interests of the coastal State”.60 There is no doubt,

56 57 58

59 60

M. Bourquin, Les Baies Historiques: Melanges Georges Sauser-Hall, Paris-Neuchatel, 1952, at p. 51) (“[t]he ‘historic’ title is one thing; the ‘vital interest’ is another”). See Ronzitti, supra n. 2, at p. 288. Supra p. 2, at p. 591, para. 391. Op. cit., at p. 291. Similarly, McDougal and Burke say that in respect of establishing an historic claim, a claimant may possibly, through such interests, bolster other relevant elements of the claim in a similar way to that in which economic interests peculiar to a region may be taken into account in drawing particular straight baselines under Art. 4 of the TSC (op. cit., at pp. 374/5). See also Blum (id., at p. 301) (in the context of Art. 4 (4) of the TSC saying, “the economic factor has been rejected as a constitutive element of an historic title”; and that it is “only through the interplay with various other elements that it may be considered”). See also the ‘Stevenson Memorandum’ of 1972 ( Alaska Ex. 8, at p. 39e in Alaska v. US (2005)) (the US could justify use of straight baselines in the Alexander Archipelago on the basis that the lines would reect “economic interests which are evidence by long usage”) (emphasis added). Goldie, supra n. 9, at p. 228. Set out in Roach & Smith, op. cit., at p. 37 (emphasis added).

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then, that some of the interests cited as ‘vital interests’ would now be protectible under a contemporary maritime zone jurisdiction – including now the 200nm EEZ – in any event.61 In sum, there is less need for a separate ‘third category’ of bays (or waters) in addition to juridical and historic bays (or waters) respectively which may be independently labelled either as “vital bays” or as “vital waters”.

61

For example, in the case of the sea area litigated about in Alaska v. US (2005), after 1966 foreign shing was not allowed within 12 miles of the US coasts, so all areas of the Alexander Archipelago’s waters – which featured in the 2005 litigation – were from then and in this respect protected under such an expanded jurisdictional limit.

Chapter 16

RELIANCE FOR HISTORIC TITLE ON SUCCESSION TO ACTIONS AND CLAIMS OF A PREDECESSOR 1. General As evidence for a claim to historic waters, the initial claims of a ‘predecessor entity’ may be important for a successor State in later establishing such a claim, particularly in adding to the time element required.1 Such an historical record could, for example have been of vital importance to Alaska in Alaska v. US (2005) had the 19th century Russian actions been relevant.2 There may be a limit, though, on how far back in time a claimant of historic waters may go for this purpose. For example, any successional reliance on an excessive and alleged very old maritime ‘claim’ may bring in problems of intertemporality (see below) and the separable doctrine of so-called “ancient rights”.3 Thus, for example, Special

1 2

3

See above Chapter 12. See below section 2.2.4. On appeal to the Supreme Court (see Alaska v. US (2005) 545 US 75, at p. 83), Alaska claimed generally that the Special Master “gave too little weight to historical events that tend [ed] to support Alaska’s position”. See above Chapter 5, and below section 2.2.2.

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Master Davis in US v. California called ancient assertions of “exclusive control” of Californian waters by Spain (in the 18th century) and Mexico (in the early 19th), as not having “any signicance” in the 20th century, as they were “reections from the old rule of the closed sea – or mare clausum – which in the nineteenth century was replaced by the doctrine of the freedom of the seas – the traditional doctrine of the [US]”.4

2. Two Types of Successional Rights General rights of succession to maritime historic claims may be incipient rights only at the predecessor-in-title stage which only later become consummated by the successor State; or such rights that are allegedly already fully consummated under the regime of a previous entity. In the pleadings in the Tunisia/Libya case, for example, there are to be found numerous references by both sides to the effect of pre-colonial,5 colonial and post-colonial actions in relation to historic claims, including general legislative acts in Libya by Italy since occupation of same in 1911, such Italian conduct at such times allegedly committing the dependent State;6 and references to the actions of France, while acting as Protecting Power in Tunisia.7 4 5

6

7

Report of October, 1952, at p. 38 (emphasis added). See, e.g., the Reply of Tunisia, Pleadings, vol. 4, at p. 18, para. 1.20, regarding xed sheries in respect of which Tunisia alleged that the Tunisian State had intervened before the French Protectorate to regulate such regimes. See, e.g., Libya’s Counter Memorial, Pleadings, vol. 2, at p. 199, para. 130 and at p. 202, para. 138; and the Reply of Libya, Pleadings, vol. 4, at p. 116, para. 34 (to the effect, e.g., that while being anxious to preserve and develop sheries in the Gulf of Gabes area, France had allegedly, “at no time regarded these rights as synonomous with a claim to sovereignty”). See also the Memorial of Honduras in El Salvador/Honduras, Pleadings, vol. II, at para. 110, regarding alleged non-contested exercise of powers by the colonial power during its period of domination. Likewise, pre-independence actions could include protests by the colonial power against another historical claim on its dependant entity’s behalf. For example, Libya alleged that even before 1904, Italy had protested “repeatedly” over the extent and nature of the area later claimed by Tunisia to be subject to historic rights Thus colonial-era protests or silence may be vicariously relied on by successor independent State as evidence of alleged non-acquiescence or acquiescence/estoppel by that colonial power as the case may be (see Reply of Libya, Pleadings, vol. 4, at p. 122, para. 50 (no evidence that Libya ever acquiesced in alleged claim to the 45° line or “even that Italy did when controlling the territory”). See also Tunisia’s reference (Pleadings, vol. 4, at p. 470) to the fact that, while Italy had sovereignty in Tripolitania and Libya, and since Libya had become territorial sovereign in 1951, there had been no objections to the 45°, the Tunisian Memorial alleging that general toleration of Tunisian rights had been observed by Libya “before and after it became independent” (Pleadings, vol. 1, at p. 109, para. 4.99). As regards knowledge of protest by a claimant State in this case, on the matter of Italian protests to France even before 1904 on claimed shing rights in the Gulf of Gabes – it was alleged that “it would be extraordinary if this evidence from the French archives was not known by Tunisia” (see Reply of Libya, Pleadings, vol. 4, at p. 116, para. 34).

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Incipient historical rights

The rst ‘type’ of succession may be a case where the ‘successor State’ only relies on the acts of its predecessor as the beginning of evidence of such title which it (the successor State) actually completes and renes. As Judge Bernardez stated in the El Salvador/Honduras case:8 The individual elements composing at present the said ‘particular regime’ of Fonseca as an ‘historic bay’ certainly vary in nature. Some result from the succession exclusively, others from subsequent agreement or . . . conduct.

US caselaw seems to illustrate the converse aspect of this. The matter was well put by the District Court of Hawaii in CAB v. Island Airways:9 That nation’s [i.e., Hawaii’s] claim of jurisdiction never ripened into a prescriptive historical right to the waters.

The Court also indicated in the latter case that the succeeding State’s attitude to (and also presumably jurisdictional actions in regard to) a possible prior historic title may be critical. As it stated:10 Thereafter [i.e., after the date of cession of Hawaii] the United States never made any claim either locally, nationally, or internationally, that the [inter-island] channel waters were being claimed by the United States as ‘historical waters’, i.e., internal waters of Hawaii.

Thus the inter-island waters in the Hawaiian archipelago were found not to be inland waters at the time of annexation of the islands by the US, at which time “the United States was ceded all rights of the nation of Hawaii”, because the predecessor nation’s claim of jurisdiction over the inter-island channels had never developed into an historic right to the waters.11 In the Cook Inlet litigation, the US Supreme Court divided up the successional issues into three historic time periods:12 rstly, the time of Russian sovereignty; secondly, while Alaska was a US territory (the so-called ‘territorial period’, during which time it was somewhat like a colonial territory); and, thirdly, the post-statehood period. Interestingly, the Court made no great distinction between the latter two periods, although Alaska had argued that it had continued to enforce shery regulations in the Cook Inlet, just as (allegedly) the federal government had, during the territorial period, so stressing repeated successional jurisdiction.13 It seems, therefore, that (as further discussed below), in this intertemporal context, past actions of a predecessor must measure up to the same general requirements as are allegedly necessary in contemporary international law to prove historic waters 8 9 10

11 12 13

Supra p. 2, at p. 714 (emphasis added). 235 F Supp. at p. 1006 (emphasis added). Id., (emphasis added). Note here the reference to the making of an ofcial “claim” to historic waters, a matter already stressed as being important above in Chapter 10, section 1. See Whiteman, op. cit., at p. 250. See also above Chapter 13, n. 168. See M.W. Reed, op. cit., at p. 125.

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title, such as formal claim and effective exercise of jurisdiction therein in contrast to the laxer intertemporal law which may have been applied in early international law to acquisition of territory generally.14 Furthermore, to retain any historical title, the successor State must, of course, in an effective manner, continue any previous jurisdictional control.15 Thus, as the Supreme Court said in the abovementioned Cook Inlet case, “since we have concluded that the general enforcement of regulations by the [US] in the territorial period was insufcient to demonstrate sovereignty over Cook Inlet as inland waters, we also must conclude that Alaska’s following the same basic pattern of enforcement is insufcient to give rise to the historic title claimed”.16 Thus, because of such a preceding historical deciency, the post-successional attitude by the successor State to a possible predecessor’s historic claim may be of critical importance for the purported claim of a predecessor for evidence of an accumulation and coalescence of an alleged historic waters claim, the total years of which may be added together;17 and where the successor State has not been in existence for a very long period, the assimilation of the years of claim of the predecessor may be vital, or at least useful, in evidencing a sufcient period of claim. As the Special Master stated in Alaska v. US,18 to demonstrate its historic claim in that case, Alaska had rst to show that “Russia and [then] the United States historically exercised authority over the waters of the Alexander Archipelago”. Accordingly, such a claim based on a predecessor in title has, in a US context, undoubtedly tended to bolster a component state-based claim, if only as a ‘make-weight’ argument.19 2.2

Succession to an alleged consummated historic title

Analogies here can of course be made to successional rights to territory as such. For example, during the fur seal dispute between the US and Britain, it was alleged in the 1890s20 that in regard to the waters of the Behring Sea, whatever duty Britain owed to

14 15 16 17

18 19

20

See, for example, the Island of Palmas case (2 RIAA, 1928), and supra, Chapter 13, p. 170. See above Chapters 12 and 13. 422 US, 184 at 201 (1975). See above Chapter 12, section 3.1.1, where the combined Russian and US period of years of alleged control of the waters of the Alexander Archipelago was, of course, much longer than the US period taken alone. Report, at p. 109. See also, for example, the Alabama and Mississippi Boundary case (1984) where the Special Master found that in that case of an (acknowledged) historic ‘bay’ (Mississippi Sound) the US had manifested an “exercise [of authority which was] continuous from 1803 [the Louisiana Purchase] to 1977”. In other words, the title was effectively inherited from French times: see the Special Master’s Report in the case of 9 April, 1984, at p. 28. See Moore, op. cit., vol. I, at pp. 901/2 and Q. 4 in the 1892 treaty of Arbitration (Moore, id., at p. 905) (concerning what Russian rights to jurisdiction “passed unimpaired” to the US under the 1867 treaty). The Tribunal nding on this was that all Russian rights did pass “unimpaired” (see Moore id., at pp. 905 and 913).

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Russia passed to the US “on transfer of sovereignty to the United States” – thus including a possible corresponding succession to maritime rights for the US.21 This is somewhat similar (see below) to the stance taken by the ICJ in the El Salvador/Honduras case where the Court concluded22 that the “rights in the Gulf of Fonseca of the present coastal States were thus acquired, like their land territories, by succession from Spain”. Similarly in the Cook Inlet case23 the US Supreme Court stated: By the treaty of cession in 1867, Russia ceded to the [US] ‘all the territory and dominion now possessed [by Russia] on the continent of America and in adjacent islands’ . . . The cession was effectively a quitclaim. It is undisputed that the [US] thereby acquired whatever dominion Russia had possessed immediately prior to cession.

It is noteworthy that in the abovementioned Fur Seal Arbitration of 1893, the arbitral tribunal found that all the rights of Russia to jurisdiction (as to the seal sheries in the Behring Sea east of the water boundary in the 1825 treaty) passed “unimpaired” to the United States on the cession of Alaska in 1867.24 However, the ultimate strong US denial of any claim in the post-cession period to jurisdiction outside the three mile limit following such arbitration, not just in the Behring Sea, but also in its “bordering waters” evidenced that even at the end of the 19th century, no more extensive coastal claims were being claimed by the US outside normal 3-mile limits, such as to all the waters enclosed in the Alexander Archipelago.25 It evident that the US did not, after its 21

22

23 24

25

See note of Mr Blaine to Sir Julian Pauncefote as to Russian rights in the Behring Sea (1890) cited in Moore, op. cit., vol. I at pp. 901/2 (“[w]hy is it that we do not inherit the claim that Russia succeeded in asserting against [Britain] in 1825?”). At the ‘Juneau Hearings’, the alleged “prior claim” of the Russians to Alaskan waters was raised, including the alleged fact that Russia used straight baselines and “10 marine leagues”: see above p. 213, n. 2, at p. 16. Supra p. 2, at p. 589, para. 589 (emphasis added), and at p. 601, para. 405: (see (1917) A.J.I.L., vol. 2, 700 (originating in 1522)); and Judge Bernardez id., at p. 712, fn. 1. Cf. the similar ‘double’ claim in US v. California, and the CAB case (352 F. 2nd 735, at p. 740) (“claims once made by Hawaii, both as a monarchy and a republic prior to annexation by the United States in 1898”). Cf. Bouchez, op. cit., at p. 212, who points out that the Central American Court of Justice in the original proceedings concerning the Gulf of Fonseca had considered that the historic claim concerning the Gulf of Fonseca had existed during “three periods” and “over almost four centuries”. 422 US 184, at p. 193, n. 13 (1975) (emphasis added). See Moore, op. cit., vol. l, at p. 913. During the dispute, US counsel (Mr Blaine) did initially allege in 1890 that in regard to the waters of the Behring Sea, whatever duty Britain owed to Russia passed to the US “on transfer of sovereignty to the United States” – a claim to succession to maritime rights by dint of the 1867 Treaty of Cession (see Moore, id., at pp. 901/2). This assertion was based on a very restricted and transitory successional claim to Russian jurisdiction outside the 3-mile limit and in a much wider geographical context, effectively relying on the broader and vaguer international legal concepts of self-protection in a context of necessity. It was abandoned by the US after the Tribunal’s decision; so that any lingering possibility of US succession to the Russian ukase was “nally set at rest” by the later Arbitration (Strohl, op. cit., at p. 266). See also Jessup, op. cit., at pp. 55/6 (no claim by the US in the Behring Sea of more than one

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succession to Russian rights in 1867 (on the sale of Alaska) purport to exercise, let alone effectively, any vestigial pre-existing Russian maritime claims in this regard. As, for example, already seen, in the Cook Inlet case the Supreme Court held that on a review of past assertions (including the ukase), none of the “facts” demonstrated the exercise of authority to an historic bay.26 2.2.1 Other instances of claimed consummated historical rights Such rights of succession to historic title have been claimed in diverse parts of the world as a basis for such title. Among the many examples is the Argentinian historic claim (from Spain) to Rio de la Plata,27 and the USSR (from Russia) in the case of the Kara Sea.28 Sometimes the successional element has been expressly referred to in the

26

27

28

league in extent, citing 1902 For. Rel. US App. I, p. 440, 461). Although during the fur seal controversy the US claimed that the “fur seal sheries had been exclusively controlled by Russia and the United States successively down to 1886” (emphasis added) (allegedly not solely with 3-mile limits), Lord Salisbury in 1890 “quoted from correspondence in relation to the ukase of 1821 and from certain subsequent correspondence to show that Russia had enjoyed no monopolies of sheries”, semble outside 3 mile limits (see Moore, op. cit., vol. I, at p. 900). It seems in fact that in the later 19th century the US was worried about the possible bad precedent value of Article IV of the 1825 treaty in that it might “be contended that by agreeing to this article [the US] impliedly at least recognised the right of Russia to exclude [US] whalemen from these interior seas and gulfs at the expiration of 10 years”; and that this could not be “acknowledged if such exclusion should operate in any interior seas large enough to make much of that surface beyond the limit of maritime jurisdiction from the shores” (emphasis added) (Secretary Fish to Mr Baker in a letter of 1/12/1875: see Moore, op. cit., vol. I at p. 717). See also the reference to the Treaty of Cession in the Report of the Special Master in Alaska v. US (2005) (at pp. 42–43), where he agreed with the US side that the phrase “command of all bays and straits” referred to command of whaling rights only and did not claim a “right to exclude foreign vessels from making innocent passage” (id., p. 43). The express nding of the Tribunal in the Fur Seal Arbitration on such issues in the Behring Sea (see above) constituted further evidence of a general lack of Russian enforcement of jurisdiction in the Alaskan area outside the 3-mile limits in the nineteenth century. 422 US 184, at p. 190 (1975). US statements tended, after 1893, to show a clear disclaimer as to any successional rights along the whole Alaskan coast in the case of allegedly internal waters (not constituting conventional bays): see, e.g., Proceedings (of the ABT), vol. II, at p. 34. As has been reasserted in more recent times by the US, “[t]he Government of the United States claims, neither in the Bering Sea, nor in its other bordering waters, an extent of jurisdiction greater than one marine league from its shores” unless a different rule is xed by treaty (DOS memorandum of 17/2/37, US Archive Ref. 00176) (made with specic authority from the US Secretary of State on 3 July, 1902). In the Gulf of Fonseca case, Dr Drago had stated that the claim was not only made by Argentina but also “our predecessor, the Spanish Crown . . .” ((1912) R.G.D.I.P., vol. 19, 5, at p. 38); cited by the UK in Fisheries case (Reply of 28/11/50 at p. 619, para. 443). Cited by Blum, op. cit., at p. 64 (“the right of Russia, and by virtue of succession, that of the USSR, to establish autonomously any legal regime of navigation in the Kara Sea”).

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relevant decree of claim; as, for example, in the claim by Panama (Law No. 9 of 30 January, 1956) to the waters of the Gulf of Panama.29 2.2.2 Instances in US caselaw prior to Alaska v. US (2005) In several past US maritime-based cases prior to those concerning Alaska, a claim has been made to a US succession to the alleged prior sovereign acts of a previous regime. For example, in the case of Long Island Sound in 1866 (Mahler v. Transportation Co (1866)),30 title was alleged to date back to an English Monarch, Charles the Second (“included within the territorial dominions of the British Empire”); and in the rst ‘tidelands’ case properly-speaking, US v. California,31 California claimed title going back to the Spanish era of occupation. In US v. Maine (the Massachussetts Boundary case),32 Massachusett’s main claim to Vineyard and Nantucket Sounds was on the basis that it was “successor in interest to the perfected title of the British Crown” as early as 1664 – in fact described as an “ancient title”.33 After lengthy consideration of this – including the case of Delaware Bay (normally looked on as an “historic” claim) – the Special Master concluded in that case that a claim on this basis to Vineyard Sound was historically warranted.34 2.2.3 References in El Salvador/Honduras to territorial succession en bloc The general principles relating to succession of title in the case of historic bays were considered by the ICJ in the El Salvador/Honduras case over the issue of the status of the Gulf of Fonseca.35 Here, effectively, a ‘double succession’ was claimed; namely rstly from Spain when the central American coastal States became independent nations in 1821; and secondly from the succeeding entity of which they all became part between 1821 to 1839, namely the Federal Republic of Central America. In this situation, the fact of the historic waters status being in existence when the ‘successional’ event “took place” was emphasised. This was seen as a consummated historic claim at the time of succession as, in particular, there was “no record of any challenge before 1821” to the Spanish claim; as well as there being evidence of Spanish exclusive jurisdiction in “general legislation” of the 17th century and in maps of the

29

30 31

32 33 34

35

See T. Scovazzi, Atlas of Straight Baselines, supra p. 147, n. 35, at p. 44) (a “bahia historica”, based in part on the exercise of sovereignty there by Panama’s “ancestors” since “time immemorial”). 35 NY 352 (cited by Jessup, op. cit., at p. 424). See Report of the Special Master, October 1952, at p. 37. See also The People v. Stralla, where the US court referred to the early historical assertions by the predecessor sovereigns of Spain and Mexico over Santa Monica Bay (cited by Strohl, op. cit., at p. 282). No. 35 Original: Report of October 1984, at p. 27. Id. Id., at p. 49. Goldie (supra p. 196, n. 154, at p. 240) points out that the situation in US v. Maine (420 US 515 (1975)) had “unique historical features” which required analysis of 18th century English policy. See supra p. 2, at p. 589, para. 385 and p. 601, para. 405; and (Judge Bernardez, id., at p. 712, fn. 1).

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time.36 So that, as the ICJ concluded from the judgment of the Central American Court (in the prior litigation in 1917), the (three) relevant States had “inherited by succession [historic] waters which for nearly three centuries had been under the sway of the State from which they were heirs”.37 Thus, in the ICJ’s opinion, these waters had “long been historic waters under a single State’s sovereignty”.38 2.2.4 Alaska v. US (2005) and the potential application of both types of successional rights to the Alexander Archipelago claim Both types of the above-discussed ‘succession’ principles appear to have been involved in the historical aspect of the Alaskan ‘claim’ in this case, when Alaska alleged, in generalised fashion, that it “merely continued Russia’s exercise of authority” over those waters,39 despite the fact that the US Federal Government itself seemingly never made an explicit claim to succeed to any former Russian ‘claim’ to sovereign rights (whether matured or not at the time of cession in 1867) to the waters of the Alexander Archipelago as such. The here-alleged successional rights in the case were seemingly based not only on general principles of international law, but also possibly on specically inherited treaty rights.40

36 37

38 39

40

Judge Bernardez, id., at pp. 712/3, fn. 1. Id., at p. 598, para. 400. Cf. Bouchez, op. cit., at p. 212, who points out that the Central American Court of Justice had considered the historic claim had existed during “three periods” and over “almost four centuries”. Id., at p. 600, para. 401; see also id., at p. 598, para. 400. Brief, at p. 13, fn. 7 (emphasis added). The beginning of the abovementioned footnote reference, refers, as seen, to alleged US continuance of “Russia’s exercise of authority over [the waters of the Archipelago] to protect that country’s trade interests . . . and to prevent illicit trafc in liquor and weapons with the coastal Natives”. For discussion of this aspect of the 1867 treaty of cession, see the ‘Stanley Memorandum’ (an Alaskan paper of 1966 entitled “Proposed Sea Boundaries for Alaska”, prepared by the Division of Lands, Dept. of Natural Resources, State of Alaska by K.W. Stanley, May 20 1966 (edited May 1970) (see bibliography) at p. 103)), giving a detailed lay-out of a possible successional claim to Russia. But this tends to look on this matter more in terms simply of formal treaty rights succession, particularly as to more general territorial aspects therein, laying excessive stress of the ‘successional’ rights/lands clause in that treaty. Stanley concluded there that, under the 1867 treaty, Russia ceded to the US “whatever rights and ownership Russia held in ‘interior seas’, ‘gulfs’, harbors’ and ‘creeks’ ” which then (allegedly) “passed to the US” – thus seemingly harking back in turn to the preceding US/British-Russia treaties of the 1820s. Cf. the Alaskan Responses to Defendant’s First Set of Interrogatories and Requests for Production of Documents (of September 2001, at p. 2) (the US succeeded “to Russia’s inland waters claim” under the 1867 Treaty). Annexed papers to the Juneau Hearings thus indicate that any alleged past Alaskan ‘claim’ to the waters of the Archipelago was based not so much on past Russian historic title as such to its waters, but more simply as a matter of implied treaty interpretation and succession to areas and lawful jurisdictional rights exercised by Russia in ‘Russian America’ prior to 1867. A paper by Boggs, however, of 1940 (of 3/8/1940, US Archive Ref. 00338) took a very narrow successional view to such treaty rights in the area of

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It is signicant that the Alaskan Brief in this litigation did not initially put this successional aspect in express terms in the main text as part of its claim to historic title, but merely in footnotes.41 A reason for the subdued Alaskan reliance on Russian title in Alaska v. US (2005) was no doubt because there was already US judicial precedent to the contrary – in fact, an unsuccessful previous Alaskan attempt to invoke such historical succession to alleged Russian claims before the US Supreme Court. For in previous US/Alaska litigation in the Cook Inlet case, both the Supreme Court and the District Court took the supposed Russian claim into consideration as the rst historical era,42 when dividing the case, as seen, into “three historic periods”, with only the District Court below surprisingly nding that Russia had exercised sovereignty over the disputed area of Cook Inlet (even there taking into consideration the 1821 ukase whereby Russia had “purported to exclude all foreign vessels from the waters within 100 miles of the Alaska coast”).43 An objective reading of the historical record showed likewise in Alaska v. US (2005) that even if an initial claim to internal waters was ever made under Russian rule in the Alexander Archipelago, it never matured, as seen, into an historic claim, which Alaska could vicariously claim succession to. It was in fact only in its later pleadings44 that Alaska directly alleged that the US had “succeeded” to Russia’s inland waters claim under the 1867 Treaty of Cession; largely on the basis, it appears, that Britain had, inter alia, “recognised” the waters

41

42

43 44

the Alexander Archipelago, and quoted from a letter of Judge Dickinson (DOS 5/22/1924) to the effect that the only water rights settled in the 1903 ABT case were those in the Portland Canal, the only object being then to nd out what rights Russia had when she sold to [the US] and those rights were xed by the treaty between Russia [and GB]”, the US getting in this narrow geographical instance “all the land rights and necessarily the water rights appurtenant thereto”. Compare the abovementioned Stanley Memorandum, supra n. 40, at p. 98, which asserted in generalised terms that Russian claims were “recognised and conceded by the [US] and Great Britain”, so that “whatever territorial waters Russia was recognised to have jurisdiction over would have passed to the [US] by the Treaty of Cession”. However even this memorandum admitted that both the US and Britain refused “to recognise her sea claim”; and that “Russia did in fact drop her intentions of enforcing the ukase [decree] soon after the protests were received” (id., at p. 99); and that in the 1824 treaty the “sea claim was disavowed” (id., at p. 103). 422 US, 184, at p. 190 (1975). The Supreme Court characterised the “whole” of the supposed evidence of Russian exercise of authority over Cook Inlet as “understandably sparse” (id.). Interestingly also, as seen, there appears not to have been any reference in this case to the other possible strand of ‘claim’ from Russian times – the effect of the 1824 treaty provision. The fact that sole reference there was made to the ukase itself indicated that in the past Alaska had found no supporting evidence for historic claims based on the 1820s treaty provisions as such. See M.W. Reed, op. cit., at pp. 122/3. Responses to Defendant’s First Set of Interrogatories, at p. 2. Past Alaskan assertions in fact had tended to by-pass the Russian period and concentrate on the early US period. See, for example, (Alaska) Governor Egan’s complaint to President Johnson in the 1970s about the

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of the Alexander Archipelago as Russian inland waters during the negotiations of the 1825 Treaty. In his Report in the case, the Special Master noted, for example, that in its later pleadings Alaska itself had acknowledged that it could not rely on the Russian ukase of 1821.45 In general, the Supreme Court’s precedent on the Russian successional issue in the previous the Cook Inlet case (above) seemed to apply analogously to the situation in Alaska v. US (although Cook Inlet is geographically further north than the Alexander Archipelago). Thus, the Special Master referred to this previous litigation and commented that the Supreme Court had “addressed Russia’s transfer of Alaska to the United States” in this previous case, holding it to be effectively a “quitclaim”; so that the US “acquired whatever dominion Russia had ever possessed” This made “Russia’s assertion of sovereignty over the waters of the Alexander Archipelago” as having “relevance to Alaska’s claim that these waters [were] historic inland waters”.46 However, the Special Master eventually concluded that no successional rights to historic waters in the Archipelago passed to the US.47 2.3

Intertemporal problems

For prima facie evidence of historic title, the factors which are now in the law of the sea considered relevant to acquiring historic title may be retrospectively applied in this inter-temporal scenario to determine whether in fact any such claim has initially arisen.48 As the UK argued in the Fisheries case, any historical title possessed by Norway to justify its claim in 1935 had to be “established exclusively by evidence of Norway’s assertions of maritime jurisdiction after the abandonment of the ancient pretensions of Denmark/Norway” (i.e., of its alleged predecessor in title).49

45 46

47 48 49

failure to use straight baselines in Alaska; namely that this had been done without consulting the “historic record” and taking account of the doctrine of historic waters, including the allegedly “continuous” pattern of assertion of sovereignty in the Alexander Archipelago “since the treaty of ‘acquisition’ in 1867” (see US Archive Refs. 08938/08949 (emphasis added)). Count 1 Opposition, at p. 8. Report, at p. 24. The Supreme Court had previously noted (supra n. 42 at pp. 191/2) that this ukase was vigorously protested against by the UK and US and was quickly withdrawn. As was to be stated in the Cook Inlet case in the context of claimed historic inland waters (albeit in a slightly more expansive maritime setting) (id., at pp. 192/3)): . . . the imperial ukase of 1821 is clearly inadequate as a demonstration of Russian authority [over the waters of the bay] because shortly after it was issued the ukase was unequivocally withdrawn in the face of vigorous protests from the United States and England [sic]. Hence the Supreme Court was here already on record as nding (albeit in a different Alaskan coastal location) that the Russian period provided no evidence to support an historic claim. See supra section 1. See supra, p. 181. Pleadings, Reply of 28/11/50, at p. 667, para. 498.

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Similarly, as seen in Alaska v. US (2005), contemporary international legal criteria were judicially applied to determine whether any Russian (historical) claim to the waters of the Archipelago ever came into being during this historic period.50

50

See above Chapter 13, section 3.2. There is no record of any clear US afrmations of successional historic title to the Archipelago’s waters after 1867; and any isolated assertions of Russian jurisdiction to prevent illicit trade were not consistent with such a claim (see above Chapter 6). Indeed, even where there were allusions to possible succession to Russian claims in the late 19th century arbitration (in the Behring Sea), the US even then considerably downplayed any successional claims going back to Russian times in respect of any excessive maritime claim in the nature of a ‘mare clausum’ (see the 1903 ABT Proceedings, vol. VII, at p. 364; cited by Jessup, op. cit., at p. 364, fn. 32)). Similarly, in the US case of CAB v. Island Airlines, the Hawaii District Court interpreted conservatively any “full thrust” construction of the predecessor’s (Hawaiian king’s) possible claim to historic jurisdiction in all the interinsular channels as if they were “closed channels”, bearing in mind that the “problems of freedom of the seas and claims to exclusive jurisdiction over territorial waters were as much an international problem then as they are today” (235 F. Supp. 990, at p. 1000).

Chapter 17

PROBLEMS RELATING TO DISCLAIMER OF HISTORIC TITLE 1. General In theory, it appears permissible for a State, within its sovereign powers, to expressly disclaim an area of historic waters, just as it may, in principle, disclaim its rights to juridical claims at sea;1 or at least for a State to allow, by omission, any erstwhile such claim to wither away through dissuetude. However, problems may arise here in the context of colonial or federal State situations or in a multi-national context, i.e., the case of a ‘pluristate’ bay; or also, more generally, where contemporary international law would now legitimate a past historic claim as a juridical claim.2 International legal precedents do not seem, in general, to inhibit a right on the part of a sovereign State to withdraw a matured historic claim, whether or not in conjunction with substitution of a juridical maritime claim in lieu, as any such action involving contraction of coastal waters should not be detrimental to the international community.3 In

1

2 3

This may not, of course, apply to all juridical maritime zones, as for example, a State’s territorial sea because of duties to foreign shipping therein: see Churchill & Lowe, op. cit., (2nd ed.) at p. 68. On dissuetude, see Judge Oda infra, section 1.2.1. See below section 1.2. See e.g., Ronzitti, infra, n. 19.

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principle, also, from an international legal viewpoint, the federal authorities of a State entity should have the same right of contraction; but, as will be seen, domestic considerations may prevent this.4 There were, indeed, hints even in the Alaskan pleadings in Alaska v. US (2005) that a State which has made a past historic waters claim may, with appropriate notice or publicity, abandon the claim at any time.5 1.1 Problems as to disclaimer in the case of a pluristate bay: the El Salvador/Honduras case In the unusual context of a pluristate ‘historic’ bay at least – like the Gulf of Fonseca in the El Salvador/Honduras case6 – there may be no possibility of any voluntary disclaimer or alteration of historic status at a later date by any of the riparian States individually. In this instance, the ICJ stated that changes in the contemporary law of the seas could “not now call in question or replace [the Gulf’s] historic status”. This tends to imply, on a broad reading, that none of the bordering States in this multipartite-owned historic bay situation could later unilaterally alter the historic aspect of the bay’s status – even to that of a juridical regime, inasmuch as the bay possessed historic status objectively, and not just subjectively. This situation would, however, seemingly not apply to a claim to a bay or other internal waters contained in a conventional nation State. 1.2

‘Implied’ automatic disclaimer?

A question arising from the view that a State may (within its sovereign rights) disclaim a past historic claim to waters, is whether, when general international law retrospectively endorses and so validates an historic maritime claim (without which label it would have been illegal (or dubious) at that past stage of maritime history), the previous ‘historic’ claim is then to be withdrawn, either ipso jure or by voluntary action. That is to say, should, or may, a State that in previous times was forced to rely on historic title, continue to rely for its title on this historic basis alone when this same zone is legitimated under the present law of the sea? The matter is not doctrinally simple, as in an intertemporal sense, a claim that was possibly ‘exceptional’ at its inception may, with more liberal rules later developing (e.g., 24-mile closing lines for bays or enclosure by straight baselines of coastal archipelagoes), later be seen to achieve retrospective legality ipso jure. Theoretically it would seem that voluntary conversion, at least, of such waters to a juridical regime would usually not be to the detriment of a claimant State’s interest anyway, bearing in mind the historical trend towards more expansive coastal zones in the modern law of the sea; and it would also rid the claimant

4

5

6

The federal/component-state relationship is not the true equivalent of a colonial situation prior to independence (see below section 3). See, for example, the allegation in the Alaskan pleadings on Count 1 (Exceptions, at pp. 31, 32) that the so-called ‘Bayard letter’ (above Chapter 10, section 2.1.1.1) “did not announce to any foreign nation that the US had abandoned a claim to the Archipelago”, thus implying an ofcial statement may so do in principle. Supra p. 2, at p. 593, para. 393.

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State of the attached extra worry of possibly losing historic title per se by failing to continuously exercise relevant jurisdiction there, which is, as seen, seemingly an ongoing legal requirement peculiarly attached to a claim to historic waters. However, as seen above, any compulsory rule to convert historic waters to a purely juridical regime might, in rare cases, be to the possible detriment of the claimant by reason of any extra juridictional powers which may attach solely to the historic status as such of the waters. Thus, in principle, any sort of ‘automatic’ disclaimer in this situation by mere operation of law would appear to be dubious, even in a unitary State context; though in fact some commentators (including Judge Oda in the El Salvador/Honduras case)7 seem to imply that such a revision applies ipso jure today (as, e.g., in the case of past claims to bays between 6–24 miles wide) without any need for an accordant declaration of withdrawal by the claimant State.8 Such an automatic disclaimer situation would, of course, reduce the contemporary importance of the doctrine of historic waters, turning it into one concerned only with truly ‘exceptional’ claims. As has been aptly commented in the context of bays, the contemporary ‘24-mile’ line for such may seem “modest” today, but “in the early days [of the 20th century] it would have been regarded as the greatest extravagance”.9 This aspect was arguably involved in the facts and pleadings in Alaska v. US (2005), because, as seen, Alaska based its claim to the waters of the Alexander Archipelago seemingly interchangeably on these waters being both “historic” and “inland waters” simpliciter,10 at a time after 1958 UNCLOS I when the rules on enclosing both coastal archipelagoes and bays were nalised; and at which time the new rules would, in theory, at any rate, validate straight baselines around the waters there in dispute, i.e., in the Alexander Archipelago.11 1.2.1 Automatic disclaimer or termination of status of historic waters as discussed in the El Salvador/Honduras case In the relevant judicial pronouncements on such ‘contemporary status’ issues by the ICJ in the El Salvador/Honduras case, it was expressly noted that the entrance to the Gulf of Fonseca, “being only 19.75 miles wide”, the “geographical dimensions and proportions of the Gulf ” were such that it would nowadays – though not in former days when the ‘6-mile’ or even ‘10-mile rule applied – be a “juridical bay” under the TSC and the LOSC.12 Similarly, Judge Oda in his Dissenting Opinion in case stated incidentally that:13 7 8

9

10

11 12 13

See below section 1.2.1. As, for example, in the US context, the cases of Chesapeake and Delaware bays. See above, Chapter 3, n. 17; and below—. Goldie, supra p. 196, n. 154, at p. 228. See also Swarztrauber, op. cit., at p. 277 (who alleged that the 24-mile rule for bay mouths makes historic bays largely irrelevant); and, e.g., Alaska’s Exceptions (on Count 1) in Alaska v. US (2005), at p. 32. See, in its Brief, most particularly the alleged ‘reiteration’ of the claim simply as “inland waters” as in the 1964 US Brief in US v. California, noted above in Chapter 5, section 1.3.1. See infra, Chapter 18, section 1.1.2.1. Supra p. 2, at p. 588, para. 383. Id., at p. 746, fn. 1.

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Chapter 17 . . . [S]ome bays named ‘historic bays’ in classical treatises since early this century are now regarded as normal ‘bays’ owing to the enlargement of the distance criterion required for the closing-line of a bay from the rather narrow distance (say 10 miles) to 24 miles under the 1958 [TSC] and [the LOSC, 1982].

He concluded also as regards the 1951 Fisheries case that “the waters [as then disputed in that coastal archipelagic situation] are now enclosed as ‘internal waters’ by the new concept of straight baselines [under the TSC and the LOSC]”; so that “their ‘historic’ background has become a superuous reference”.14 He afrmed the same result concerning cited past claims to historic bays (including US ones) in the light of the 24-mile rule; and he likewise intimated that historic claims to ‘archipelagic waters’ by mid-ocean archipelagic States are now also “irrelevant . . . because of the agreed new concept” in respect of same.15 Thus, for example, in the latter context, Judge Oda maintained16 the Philippines past historic waters claim would now come under the juridical concept of “archipelagic waters”; so that the concept of historic waters, in such an instance, was now (allegedly) “irrelevant”. Because of such considerations, he concluded that this may be a reason why the concept of ‘historic waters’ does not appear (as such) in either of the law of the sea treaties – the TSC or LOSC;17 though he perhaps exaggerated when he then claimed that ‘historic waters’ as such did not, and do “not exist as an independent institution in the law of the sea”. As seen above, for example, there may be good reasons jurisdictionally, albeit limited ones, for at State still to rely on historic title where nowadays non-historic (i.e., juridical) title could also be claimed to the very same areal extent of waters.18 1.2.2 Examples of (possibly) ‘disclaimed’ historic waters where later juridical claims interpose In fact there are some precedents in international practice where a State which in the rst instance justied an internal waters claim under the guise of historic title, has later – as seemingly the TSC claried and liberalised the international rules relating to coastal archipelagos and juridical bays – justied such enclosure under a juridical doctrine based on straight closing lines. For example, Tunisia supposedly made this 14 15 16 17 18

Id., at p. 755, para. 43 (emphasis added). Id. Id., at p. 756, para. 43. Id., at p. 756, para. 44. This is because (as already seen above in Chapter 5), for example, in coastal water archipelagoes (Art. 7 of the LOSC) a right of innocent passage still must be accorded to foreign ships in areas formerly high seas or territorial sea; and likewise in the case of ‘archipelagic waters’, a right of archipelagic sealanes passage (or, at least, innocent passage) must still be accorded by the coastal State; but cf. the contrary statement in the El/Salvador/Honduras case, supra, p. 2, at pp. 592/3, para. 393. Goldie has commented (supra p. 196, n. 154, at p. 251), that “the characterisation of the [US] title to [its historic bays] may still be of importance independently of their [also] contemporary status as juridical bays” (emphasis added); but he seems to give only a ‘dual claim’ reason in the converse situation: namely, the fact that (seemingly unlike in the case of a juridical bay) an historic bay title may lapse if “permitted to fall into dissuetude”.

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change in the case of its past historic claim to the Gulf of Gabes.19 Other State practice seems to bear out such intertemporal ‘voluntary’ interchangeability, as, for example, Australia which in 1967 purported not only (in adopting a 24-mile rule instead of the 10-mile rule) to convert some possibly historically-claimed bays into juridical ones, but also even to enclose the more extensive Shark Bay (with a mouth width of 36 miles) – a supposedly historically-claimed bay – within ‘TSC, Article 4-type’ straight baselines.20 Similarly, Ronzitti21 has suggested that Italy, although having already claimed the Gulf of Taranto as an historic bay, has not “implicitly excluded that its enclosure could be justied under [Art. 4 of the TSC]”, (i.e., as a juridical claim to internal waters). As, he argues, international law “avoids the legal technicalities of domestic systems”;22 and it “does not make any difference from the standpoint of the international community” how the waters of this Gulf are made internal (i.e., whether under historic title or juridical straight baselines). There was in fact also ofcial US conrmation of this type of voluntary ‘conversion’ process in the US context in 1972,23 when it was stated that (with the exception of Long Island Sound, the historic status of which arguably does not “qualify as a bay”): . . . the other historic bays which the [US] has claimed in the past are Delaware Bay and Chesapeake Bay. Now, those as a result of the 24-mile closing line established by the 1958 Convention, became juridical bays, so the historic claim is no longer relevant. There are no other cases in which an historic bay was found to exist.

It seems to be theoretically in order, therefore, for a unitary State at least to substitute its former historic claim for a juridical claim; insofar as such an ‘historic waters’ claimant is (normally) constitutionally entitled to take advantage of the more liberal contemporary rules of the law of the sea; and because, in a typical historic waters case, the claim to sovereignty (over internal waters) under such title may be, as seen, no more advantageous to the claimant and no more disadvantageous to other States than a claim based squarely on contemporary law.24 Of course, where contemporary international law would still not, for example, sanction juridical bay status (e.g., because of the size of the mouth of the claimed bay), resort may still have to be had to the traditional doctrine of historic waters to maintain such status. Thus, for example, even since the convention-based 24-mile width rule has come in since UNCLOS I in 1958, exceptionally large historic bay claims will still be 19

20

21 22 23

24

Cited by Ronzitti in ‘New Criticism on the Gulf of Taranto Closing Line: A Restatement of a Different View’ (1985) 12 Syracuse Jnl. of Intl. Law and Comm., 465, at p. 469. See Edeson supra, p. 164, n. 12, at p. 297, who notes Shark Bay was probably already then under Australian sovereignty as an ‘historic’ bay. This policy was chosen even though it meant not basing the claim on historic grounds “which would in any event have warranted a claim to the entire [and so greater] location” (emphasis added). Ronzitti, supra n. 19, at p. 468. Id., at p. 469. Supra, p. 82, n. 17, and infra, n. 43, at p. 10 (per Mr Nelson, of the US State Department) (emphasis added). See above Chapter 5 in respect of such claims affecting any right of innocent passage.

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wholly dependent on historic status for their continuing existence, such as four larger bays in Australia.25

2. Intentional Disclaimer in a Colonial/Quasi-colonial Situation A question arises as to whether an erstwhile sovereign power over a certain dependent territory may, during the continuance of its rule there, validly disclaim (or, indeed, even let lapse through dissuetude) a previously valid historic claim. For in such a situation, justice and equity principles may arguably interpose to inhibit this; as, for example, where a colonial power has, over the colonial era, supported an historic bay claim in the colonial territory, but purports, when decolonisation looms, to negotiate away, possibly for its own selsh interests, a pre-existing historic right. Here Goldie suggests26 that “a decolonisation argument . . . could, indeed, be formulated so as to assert that a colonial power should not be able to terminate, for the indenite future, and for purpose of its own interests, the rights of the colonised community or state which has fallen under its sovereignty”. Similar problems may, and have arisen, in a federal State context, as is discussed below.

3. Problems over Disclaimer in a Federal State Context 3.1 The general problem In any federal state context, where control of foreign affairs lies essentially in the hands of the federal, rather than component-state, authorities, there may be potential of clashes of interest over maritime policies between the respective state and federal entities. For example, in the case of Australia, it has been aptly commented that although component-state activities may indicate an intent as to historic claim (and possibly effective control), the more recent activities of federal authorities which “contradict this assumption of local control” may “either destroy or inhibit a successful claim” in international law.27 Similar constraints may interpose for similar reasons in the USA, because of the predominant position of the federal Government in terms of dictating foreign policy.28

25

26

27 28

See Edeson, supra n. 20 at p. 295, who there mentions in this category St Vincent and Spencer, Shark Bay (but see above n. 20), the Gulf of Carpentaria and possibly Van Diemen Gulf. ‘Historic Bays in International Law – An Impressionistic Overview’ (1984) 11 Syracuse Jnl. of Intl. Law & Comm., 211, at p. 226 (emphasis added). Edeson, supra n. 20 at p. 295 (emphasis added). Cf. the US Brief in US v. California (No. 5 Original, 1964, at p. 12) (“. . . what domestic waters will be claimed, involve international relationships which must be answered by the political branches of the national government to which matters of foreign relations are exclusively entrusted”); and (id., at p. 51) (“statements of the State Department should be considered conclusive of the policy of the [US]”).

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The possibility of voluntary conversion of an allegedly original ‘historic claim’ into a later juridical one was academic in the Alaskan situation because of past US federal policy over straight baselines around coastal archipelagoes: i.e., one of non-adoption of the TSC, Art. 4 rules. Where a ‘critical date’ interposes before the new rules develop (such as the date of Alaskan statehood), and, where, as in such a federal system, a component state of the Union is unable (under past precedent etc.) to take advantage of more liberal developments in the law of the sea, its ‘claim timeframe’ may be effectively ‘frozen’, so that it will be forced to rely still on any alleged old historic title, unlike true unitary ‘nation’ States.29 3.1.1 The US domestic rules over disclaimer In the US situation, it has been indicated in the California and Louisiana cases that “longstanding, extrajudicial disclaimers of historic title” may bar any claim to historic waters off particular maritime states of the USA.30 There is no doubt, then, that in principle the US federal authorities may, in the international legal sense (and even in a domestic sense) ‘disclaim’ that any US sea areas are historic waters, in line with the general disclaimer principles as mentioned above which enure to any sovereign State. Since 1971 there are said to have been at least two generic examples of federal disclaimers to US ‘state’ historic waters claims, the rst being the “federal position in the litigation itself ”; and the second being “the publication and distribution of ofcial charts that [restrictively] depict the [US] maritime claims”.31 As the Special Master 29

30

31

There is, in fact, an interplay generally in this federal situation between domestic factors and international law: see below n. 34. This may, in such a case, be a further reason for retention of the doctrine of historic waters. See US v. Louisiana, 394 US 11, at p. 29 (1969). An extrajudicial example from the US is CAB v. Island Airlines (235 F Supp. 990, at p. 1002), where later unequivocal ofcial statements (before a US Senate Committee) – here by non-federal (i.e., Hawaiian) ofcials – to the effect that Hawaii had no claim for control of the oceans beyond the traditional three-mile limit (and citing a general Department of State memorandum on insular territorial waters of 1951 on waters within groups of islands), implied US disclaimer of any inland waters there. This case shows that in the US a disclaimer may take in not only ofcial statements but also (more broadly) a generally-discordant US law of the sea policy, as being conclusive. See further below n. 33. In the Cook Inlet case, the Supreme Court noted (422 US 184, at p. 203, n. 17) that the US had argued that historic title to the Inlet had been defeated by “several [US] disclaimers of sovereignty” over these waters; and that the District Court (352 F. Supp., at pp. 818–19) had “rejected the disclaimers on the grounds that they were ill-advised and, perhaps, self-serving”. The Supreme Court remarked that as none of the facts relied on by the District Court sufced to establish historic title, “we have no occasion to consider whether the disclaimers [of the US] could have defeated otherwise sufcient facts”. In other words, the federal entity obviously does not need to ‘disclaim’ an alleged ‘claim’ which simply has never existed. M.W. Reed, op. cit., at p. 325, citing the Special Master in US v. Louisiana. See US v. Florida (Special Master’s Report, No. 52 Original, October 1973, at p. 42) (“[h]ere there is not only disclaimer in the litigation but additional evidence of activities and statements by ofcials of [the US] of continued disclaimers of historic title to the waters in question”); and the Special Master in the US v. Louisiana case (Report, July 1974, at pp. 16/17) where he found the federal legal position “itself ” as a disclaimer, along with a letter from State Department and Baseline Committee charts.

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stated in Alaska v. US (2005) in respect of clear federal actions in the 1970s relating to US baselines,32 most signicantly “publication of the Coastline Committee’s 1971 charts indicated to the world that the [US] was not claiming a right to exclude foreign vessels from the Alexander Archipelago”, and thus presumptively ruled out a claim to the waters of the Alexander Archipelago as being ‘historic’. A third situation may be where relevant US law of the sea policy itself later changes.33

32 33

Report, at p. 112. In principle, past US maritime claims may be overridden not only by later adoption of contrary law of the sea principles by the US, but a fortiori by a geographically-specic disclaimer. For example, Special Master Maris in the US v. Florida case emphasised (see above n. 31) that apart from the litigation position of the US in that case, there was “additional evidence” of a disclaimer. As regards the baseline charts, the US argument in the US v. Maine case (cited approvingly in the Special Master’s Report, October 1984, at p. 15) was to the effect that “these charts mirror the ofcial position of the [US] on the location of its boundaries”. Accordingly, the 1971 ‘Baseline charts’ were examined by Special Master Mann in US v. Alaska (1996), including in relation to the Alexander Archipelago (Report, March 1996, at pp. 166–168). As he commented (id., at p. 167 (emphasis added), “[b] ecause the delimitation [on the charts] did not use straight baselines, the maps showed enclaves of high seas, for instance in the Alexander Archipelago”. The Special Master there agreed with Alaska that ofcial US correspondence in 1963 (from the US Attorney-General) indicated federal concern over repercussions for state-federal litigation over submerged lands; and he concluded that, as regards the Arctic at any rate, this was “not a situation in which the US has created a contraction of Alaska’s recognised territory” (id., at p. 169). The fact that two years later (to publication), after Alaskan protests, a US Memorandum (from the Acting Legal Adviser, to the Interagency Task Force on the Law of the Sea, cited by the Special Master, id., at p. 167) indicated that the State Department would not oppose application of straight baselines to this Archipelago (provided at least Alaska agreed not to use them as the basis of a claim for additional submerged lands) is in itself further evidence in ofcial federal thinking that no existing (historic) lines existed in this area. There is thus ample past US Supreme Court authority to suggest that the publication of Baseline Committee charts (which are prepared by the “Committee on Delimitation of the [US] Coastline”, a body composed of members from all federal agencies having an interest in maritime boundary affairs) may in themselves amount to ‘disclaimers’ or at least show authoritative US maritime boundaries, thus showing that State-alleged inland waters are not in fact ofcially viewed as such: cf. Massachusetts’ argument in the US v. Maine (Massachusetts Boundary case (Report, October 1984, at p. 14) that “the Coastline Committee [was] neither authorised to pass [sc. judgment] on historic claims, nor competent to do so”, citing a letter of Secretary of State Rogers of 13 May, 1970; and the testimony of Dr Hodgson that it was intended to exclude from the Committee’s purview whether a particular body of water would be “deemed . . . to comprise historic waters” (Deposition 27 March, 1979, Tr. at 94). In the latter case the Special Master stated that the “charts act as disclaimers of historic title even if the [US] turns out to have been mistaken about the validity of an unrecognised historic claim” (id., at p. 15). Special Master Hoffman in the Massachusetts Boundary case had emphasised the international (‘dual role’) importance of the Baseline Committee charts, which, he said, “put all interested parties, including foreign countries, on notice of the most current [US] boundary claims” (Report, October 1984, at p. 15); indeed in his Report he found such charts to “create a presumption that the [US] has disclaimed historic inland [sic] title” to relevant waters, with the burden of proof (i.e., disproof ) then shifting to the state; and see also

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It may indeed be said that in a US federal dispute situation, a federal ‘disclaimer’ of alleged US historic waters in a particular area of the USA is analogous, in the absence of federal “acquiescence” in any such state-oriented claim, to a nation State ‘protest’ to a foreign historic claim, as hinted at by Special Master Armstrong in US v. Louisiana where he stated: “[t]he State of Louisiana . . . insists that . . . it has exercised . . . sovereignty of a type consistent only with inland waters, and that there has never been any protest by either any foreign power or by the [US]”.34 The emphasised wording here indicates an analogy of the federal Government being seen as the equivalent of a foreign nation State, despite the domestic context. It would appear that any more constrictive rules evident in US past caselaw on ofcial federal disclaimers of historic title are not the result of international legal requirements, but simply domestic US judicial policy. For example, in the Alabama and Mississippi Boundary case,35 the Special Master there referred to the 1971 Baseline

34

35

the Special Master’s Report in US v. Louisiana (of July 1974, at p. 17) (the Baseline Committee “boundaries are entirely consistent with the position taken by the [US] in this litigation”). In US v. Maine (Rhode Island & NY ) (1983) (No. 35 Original, Report of October 1983, at p. 11) the US again relied on the 1971 baseline charts, in this case regarding Long Island Sound; and the Special Master there laconically concluded that the burden was thus on the two states to prove evidence “clear beyond doubt” that the federal disclaimer had been thus overridden. Even publicly announced general delimitation principles by the US Government which undermine the 1903-alleged ‘inland waters’ claim in the Alexander archipelago may impliedly act as a disclaimer even if the basis of title is ‘exceptional’: see, more generally, the Supreme Court in US v. Alaska (1997) 521 US 1, at p. 21. Cf. CAB v. Island Airlines (cited above n. 30) where the District Court (335 F. Supp. 990, at p. 1004) repeated the statement from US v. California (of the Supreme Court) regarding “freedom of the seas” and national Government’s power to “exercise control consistently with whatever international . . . commitments it may see t in the national interest should be unincumbered”. See also the Report of the Special Master in US v. California (1952, at p. 21) (“. . . I have not overlooked the fact that counsel for the [US] takes the position that this Court cannot go behind or disregard the State Department’s declaration of what its policy now is or what it has been in the past”); and see id., p. 26 (“California accepts . . . the concession or disclaimer of the [US] so far as it goes . . .”). Report, 1974, at p. 15 (emphasis added). There have thus been signs of a judicial attempt to view US federal/state maritime disputes as if they were effectively a dispute between two foreign States; so that the federal Government on this strained analogy has been viewed as the equivalent of a foreign nation vis-a vis its own state entities, even in terms of acquiescence in respect of a particular alleged ‘component state’ historic claim. See the further statement of Special Master Armstrong in US v. Louisiana, airing his idea that the federal Government might, like a foreign State, ‘protest’ at (its) state-based historic claim (Report, 1974, at p. 16) (the “[US] did not acquiesce in such activities but vigorously opposed the claim of the State of Louisiana” (emphasis added). If his view is valid – which it may be argued it is not in this particular context, because of the articiality of the ‘ction’ involved – it could of course be argued that federal acquiescence to an internal claim, followed by a disclaimer, is equivalent to a nation State rst acquiescing in another nation State’s historic claim and then later protesting at it – a process which would be unacceptable in international law, if only for reasons of estoppel. Report, April 1984, at p. 47.

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maps as having been widely published and “distributed to foreign Governments” in response to a request by the Department of State. In other words, there seemingly were adequate ofcial ‘claim’ aspects and publicity for international purposes; but, in the circumstances he found it “difcult to accept the disclaimer [there in issue] as entirely extrajudicial in its motivation”. In other words, he seems to have taken account of the inuence of US federal seabed interests policy (the fear of component-states in the Union making excessive maritime claims which impinge on the ‘seabed’ revenues of the federal authorities under the US legislation, the Submerged Lands Act), which he attempted to counter by giving disproportionate weight to other (domestic) factors.36 Thus it seems that in respect of any hypothetical past historic claim, the US federal authorities have a more limited power to reject a maritime right arising internally under international law as a result of domestic US judicial policy.37 3.1.1.1 The ‘proviso’ to freedom of disclaimer in the US situation: where the historic claim has already “ripened” The ‘proviso’ here referred to was conrmed by the US Supreme Court in US v. California,38 where it was said: [The Court is] reluctant to hold that such a disclaimer would be decisive in all circumstances, for a case might arise in which the historic evidence was clear beyond doubt. But in the case before us, with its questionable evidence of continuous and exclusive assertions of dominion over the disputed waters, we think the disclaimer decisive.

In this case the Supreme Court added that the US disclaimer “would appear to be in an attempt by the United States to prevent recognition of any pre-existing historic title which might already have ripened because of past events”.39 As was added by the same Court in US v. Louisiana, it would be “quite another” step to “allow the United States to prevent recognition of a historic title which may already have ripened because of past events but is called into question for the rst time in a domestic lawsuit”.40

36 37

38 39

40

Id., at p. 50, referring to a previous 1951 US citation. See US v. Maine (Massachusetts Boundary case), where the Special Master interpreted the Supreme Court’s dictum as indicating “its unwillingness to give [the US] the same discretion to block a claim to historic waters as it possesses to draw straight baselines” (Report, October 1984, at p. 13, citing the Louisiana case (394 US 11, at p. 77). 381 US 139, at p. 175 (1965). Id. (emphasis added). See also US v. Louisiana (“[t]he State of Louisiana takes the position . . . that if its claim had already ripened because of past events prior to the time when it was rst called into question in a domestic lawsuit, it would be an impermissible contraction of territory to permit the [US] to defeat that claim by the ling of that suit” (Report, July 1974, at p. 16). The US courts have thus claimed quite considerable judicial discretion. See, more generally, Special Master Hoffman in US v. Maine (Report, 1984, at p. 17, n. 6a) who acknowledged that the “determination of boundaries is ordinarily a political and not a judicial function”; but that this did not “preclude the courts from inquiring into the actual position taken by the sovereign in regard to specic waters, as opposed to its declared position” (emphasis added). 394 US 11, at n. 104, p. 77 (emphasis added).

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The two-way pull between international legal and domestic concerns respectively has thus been acknowleged in past US tideland cases. Interestingly, the Supreme Court in the Louisiana case, whilst noting that the relevant international law (the TSC) was “designed with an eye to affairs between nations rather than domestic disputes”, resorted to Solomon-like justice by holding that the only “fair way” to apply such law was to treat the US ‘federal’ situation as if it were an inter-state dispute; as it would be “inequitable in adapting the principles of international law to the resolution of domestic controversy, to permit the National Government to distort these principles, in the name of its power over foreign relations and foreign affairs, by denying any effect to past events”.41 Such court-imposed federal policy constriction seems to have been based largely on the grounds of fairness in the domestic legal context (as the word “inequitable” in US v. Louisiana above implies). In this sense a component state of a federation is somewhat akin to the position of a colonial territory as discussed above; and it importantly entails that a federal ‘disclaimer’ which comes too late will be discounted in US law, although in international legal terms it would have been normally sufcient to disclaim as against other nation States. 3.1.1.2 Particular disclaimer problems in the Alaskan situation in the light of US ofcial policy In Alaska v. US (2005), Alaska in its pleadings relied on the abovementioned ‘proviso’ in its Brief, arguing that the US did not “afrmatively” disclaim the alleged historic claim (allegedly for the “rst time”) until the late date of 1971, by which time the title had (allegedly) “ripened”.42 It was on this date that the US “published a series of charts [i.e., the ‘Baseline Charts’] depicting the waters [of the Alexander Archipelago] as territorial seas with several enclaves of high seas more than three miles from the surrounding shores”.43

41 42 43

394 US 11, at pp. 77, 78 (emphasis added). At p. 18 (emphasis added). Id. The adverb “afrmatively” here is interesting, as it leaves room for speculation that there may have been implied disclaimer by the federal authorities before 1971, as indeed seems to have been the case. For in the Alaskan context more generally, historical disclaimer could certainly be added; namely that, quite apart from any Russian disclaimer of there being internal waters in the Alexander Archipelago (as as seen, particularly through the treaties of the mid-1820s), at least one generalised ofcial US ‘disclaimer’ was made following the US/GB (Behring Sea) Fur Seal Arbitration of 1893. Referring to a statement made by US Secretary Gresham on July 14, 1893 (cited by Moore, op. cit., vol. I, at p. 925), the US stated that it “accepted the decision of the Paris tribunal as an authoritative declaration of international law”). There it had been stated that “[p]rior to and up to the time of cession . . . Russia did not assert or exercise any exclusive jurisdiction [in the Behring Sea], outside of ordinary territorial waters”, thus indicating that the US accepted that Russia (albeit here essentially in the Behring Sea context) had never asserted jurisdiction off Alaska beyond a 3-mile limit. And, as seen above (p. 76), in the later 1902 US/Russia Arbitration, the US agent made a declaration before the Tribunal “by specic authority of his Government”, that the US made no claim to an extent of jurisdiction “greater than one marine league from its shores”, not only in the Behring Sea but also in its “other bordering waters” ((Moore, op. cit., vol. I at pp. 928/9 (emphasis

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Thus Alaska in its pleadings in the case admitted such specic federal disclaimer, but citing the Alabama and Mississippi Boundary and Louisiana cases,44 alleged that this disclaimer was insufcient to divest it of maritime rights because in this instance historic title had allegedly ripened (see above the phrase previously used by the Supreme Court in the caselaw). However, the Special Master rejected Alaska’s contention that the federal charts of 1971 were irrelevant, saying that the facts here more ressembled the California case of “questionable [historic title] evidence”;45 and that, unlike in the abovementioned case, the US had not issued the disclaimer “during the course of ongoing litigation with Alaska”, as the 1971 charts predated “this litigation by nearly 30 years”.46 Thus, citing the California case,47 the Special Master, held the disclaimer was “decisive” because of the “questionable evidence” of continuous and exclusive assertions of dominion over the disputed waters. So that in the light of his general nding against there being any historic waters in the Alexander Archipelago, the matter of alleged disclaimer proved to be academic in the case.

44 45 46 47

added)). This latter wording, could, of course, implicitly have included the waters of the Alexander Archipelago. At the Juneau Hearings, the US federal representative, Mr Nelson – representing the Ofce of the Legal Department of the State Department – had expressly stated that the US had not made – nor did the Baseline Charts reect “any claim to the historic bays off Alaska” (see, supra p. 124, n. 35, at p. 5). 470 US 93, at pp. 111–114 and 394 US 11, 77 n. 104 (1969). Report, at pp. 113/4. Id., at p. 114. Report, at pp. 112/13, citing also the Louisiana and Alabama and Mississippi Boundary cases. See also id., at p. 129 (“Such questionable evidence . . . cannot overcome the [US] 1971 disclaimer”).

Chapter 18

CONCLUSIONS: DOES THE CONCEPT OF HISTORIC WATERS HAVE CONTINUING RELEVANCE IN CONTEMPORARY INTERNATIONAL LAW? 1. Was there Ever, and is there Still, Such a Doctrine in International law? As seen, the historical origins of the doctrine of historic bays are vague and seemingly of comparative recency, i.e., appearing at the end of 19th century, when a distinct category of such bays was clearly contrasted with ordinary bays, the term ‘historic bay’ appearing to probably date back to Dr Drago’s dissent in the 1910 North Atlantic Fisheries Arbitration.1 The origins of historic waters claims to ‘non-bay’ areas are even obscurer, not only because instances have been rarer, but also because most academic2

1

2

See above Chapter 1, section 2.1.2. In the El Salvador/Honduras case, Judge Oda, as seen, stated that prior to 1910, the “term ‘historic bay’ was found in hardly any document” (supra p. 2, at p. 738, para. 11). See, for example, the leading treatises of Bouchez and Strohl, supra Chapter 1 at nn. 1 and 32, and as set out in the bibliography.

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and caselaw attention has been directed to the concept of the historic bay, and not to historic waters more generally, such as historic archipelagic coastal waters (as was the case in Alaska v. US (2005)), or indeed to historic straits or territorial seas;3 perhaps, in more recent times at least, because no specic ‘historic’ ‘exception’ provision was made explicitly for such waters under the law of the sea, for example under the straight baseline provisions of the LOSC.4 The case of Alaska v. US (2005) now shows how the traditional principles applying to historic bays may be relevant to other geographical instances of historic claim;5 as is accounted for in the wider title to the present work (“Historic Waters”). Indeed, in the case of a claim to non-bay waters on historic grounds, e.g., in the case of a coastal archipelago, there may still be some practical value in persisting in (or even retrospectively attempting articulation of) an historic claim even where contemporary law of the sea (Arts 4 of the TSC and 7 of the LOSC) would legitimise them as enclosed internal waters anyway.6 It may also be said, as seen,7 that the whole concept of so-called ‘vital’ bays and waters which may have lain behind many past historic claims is now an anachronism anyway; and that the list of ‘historic’ waters is now long closed, as, for example, such ‘vital’ interests may now be catered for “under alternative legal concepts to that of historic bays”, being protectible under one or other of the contemporary maritime zones.8 1.1

Evidence against such a doctrine

Judge Oda may have exaggerated when he claimed in El Salvador/Honduras that ‘historic waters’ as such did not, and do not, exist as an “independent institution in the law of the sea”;9 but not all State practice has wholly approved of the doctrine. For example, even some past US policy statements seem to give only lukewarm support to the theory; to the effect, for example, that “the number of instances is very small in which states have established an historical system (comparable to that of Norway on its ‘skjaergaard’) which they can maintain should take precedence over the rules that should now be evolved [sic] and established”.10 Strohl has commented11 that the US, together with Sweden, at the Hague Preparatory Conference “rejected the thesis of the 3 4 5 6

7 8 9 10 11

See above Chapter 2. See above Chapter 2, section 3.1.2. See above Chapter 2, section 3.1.4 and Chapter 9, section 2. See above Chapter 5, section 3.7. This is, as seen, because such latter internal waters have now a modied regime if they were formerly areas of the high seas or territorial seas. For a right of innocent passage here still pertains (Art. 5 of the TSC and Art. 8 of the LOSC); whereas under an historic regime – according to which the regime may be dependent on the type of claim and its particularised regime – there would be no automatic right of such innocent passage, even in contemporary law, in such areas if the historic internal waters claim was validly made and is retained. See Chapter 15. See above Chapter 15, section 5.2.3. Supra p. 15, n. 75. See Boggs’ memorandum to Yingling (US archive Ref. 3/2/53 – 00660). Op. cit., at p. 314, citing LN publication; Doc c. 74 M. 39, 1929, V, at p. 45.

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historic bay” altogether and that the US delegation “stalled any real discussion on [the topic] Number 8”; but in fact the US representative there seems merely to have criticised the terminology of ‘historic bays’, not the substance underlying the doctrine.12 It is also not without signicance that in almost all the US tidelands cases involving issues as to historic bays or waters, – as in the latest, Alaska v. US (2005) – the existence of such historic waters in various parts of the US has usually been rejected by the US courts.13 1.1.1 The alleged international rules are interconnecting and vague As seen in Chapter 9, just as sub-rules can be teased out of the three broad above-mentioned requirements, these, in turn, tend to inter-relate with each other and with other facets of the general principles underlying the doctrine. Such matters add greatly to problems for clarity of analysis of historic waters. For example: – to what extent the alleged ‘exceptional claim’ requirement is vital to an historic waters claim (this intrinsically inter-relating with the acquiescence requirement inasmuch as this feature makes the likelihood of an expected protest more clearly called for);14 and the relationship of same with the so-called doctrine of ‘ancient rights’;15 – the time factor (when was the claim actually made (whether eo nomine or not) and how long must the claim have existed?), interrelating with the continuity requirement and with other supposedly relevant issues, such as matters relating to effective exercise of jurisdiction and acquiescence;16 – the publicity factor, interrelating in several ways with other rules, including acquiescence and effectiveness of exercise of jurisdiction;17 – the ‘effective exercise’ requirement18 in turn inter-relating with the formal declaration/publicity requirement and with the acquiescence requirement;19

12

13 14 15 16

17 18 19

LN Proceedings, V. 14, p. 107 (cited in the UN Memorandum of 1957 (UN Doc. A/CONF. 13/1, at p. 37, para. 202)). See e.g., above p. 61, n. 69. See above p. 62, section 3.6; and p. 216, section 1.2.1. See above, Chapter 5, section 4. See supra, Chapters 9 and 12. In, for example, Alaska v. US (2005), the implication of Alaska in its Brief that an historic inland waters claim had to be “consistently” held, inter-relates with connotations both of continuity of actual enforcement of relevant jurisdictional attributes (as well as, as seen, a sufciency of period of time) (see supra Chapter 12, section 1.1). As the Special Master stated in the earlier US case of US v. California (see above p. 180, n. 78), if alleged instances of Californian jurisdiction “did not constitute an assertion of exclusive jurisdiction over [the] waters such as might be the occasion for objection by foreign governments”, then, in these circumstances, “absence of objection from foreign countries cannot be regarded as acquiescence”. Likewise, the Supreme Court in the Cook Inlet case found that the “routine enforcement of domestic game and sh regulations in Cook Inlet in the territorial period failed to inform foreign governments of any claim of dominion” (see above p. 180, n. 78). See Chapters 11, 13 and 14. See Chapter 13. See Chapters 10, 11 and 14.

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– the matter of geographical uncertainty or inconsistency of claim also interrelating with the question of other States’ awareness of the alleged historic claim and so acquiescence;20 – the inter-relationship of effectiveness principle with the acquiescence and the ‘commensurate jurisdiction’ principle.21 The supposed international legal rules are in any event vague and difcult to apply in practice because the basic requirements for proving historic title to waters are derived from international customary law.22 As, for example, Judge Oda, in the El Salvador/ Honduras case, pointed out, in the TSC of 1958 the concept of an historic bay was “not dened in clear terms”; and that there was little discussion on historic bays at the UNCLOS III proceedings.23 The supposed three rules – formal claim, continuous and effective exercise of relevant jurisdiction, and international acquiescence – as laid out in the UN Juridical Regime – have, it is true, received the imprimatur of approval in the international legal context of the El Salvador/Honduras case; but unfortunately, the ICJ’s reference to a particularised regime for historic waters in that case merely muddies the already unclear rules at customary law relating to historic bays, to the extent in fact of even watering down basic traditional rules on necessity of proof as to uni-national control of foreign navigation therein.24 Also, as seen, in that case the ICJ seems to have assumed continuing (universal) acquiescence from somewhat scanty evidence where the attitude of States to the status of the Gulf of Fonseca was largely unknown; and it seems in fact to have simplistically short-circuited the acquiescence factor by citing as evidence of acquiescence just two text book writers, having said that this status had been “generally accepted by the commentators”;25 and it is confusing that an additional reason the Court gave to explain any historical ‘anomaly’, involved, as seen, controverting intertemporal legal logic by retrospectively giving historic waters regimes a contemporary interpretation in the post-UNCLOS I era, in what is strictly-speaking a ‘bay’ situation anyway26 by making analogies with the position in coastal archipelagic internal waters contained in former territorial/high seas enclosed as ‘internal’ by straight baselines. It is true that most commentators who have been responsible for enunciating the rules on historic waters, in tending to cite each other and thus to take a synoptic approach as to the international rules, have agreed with the three above-mentioned and commonlyrepeated ‘rule shibboleths’ thereon;27 but with the unfortunate effect that the opinions of same on the issue have, at times, been consequently cited elsewhere on the status of any waters almost as a substitute for state practice.28 The UN Juridical Regime rightly 20 21 22 23 24 25 26 27 28

See above, Chapter 14, section 1.2.1. See above, Chapter 13, section 3, and Chapter 14, section 2.4. See above, Chapter 1, section 2.1. Dissenting Opinion, supra p. 2, at pp. 742/3. See above Chapter 13, sections 3.1 and 4.2.2. Supra p. 2, at p. 593. See above Chapter 13, section 4.2.2. See above, Chapter 1, section 2.2.4.1, and n. 25 above. See id.

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concluded29 that the matter of ‘historic waters’ was “a subject where supercial agreement among authors and practitioners conceals several controversial problems as well as some obscurity or at least lack of precision”. Part of the reason for this is, as seen, that the rules have never been laid down in treaty law.30 For example, just as at the UN conferences, so also at the Hague Codication Conference in 1930 there was “no agreement concerning the admissibility of historic bays in international law as an exception to the general rule for bays”.31 Accordingly, as seen throughout this work, many aspects of the so-called rules have problems of interpretation attached to them. For example: – at just what time an historic claim has arisen, and whether it has to arise eo nomine (i.e., difculties over estimating the ‘critical date’ and whether the claim has been designated as ‘historic’);32 – vagueness on the length of time requirement;33 – problems as to quantum of proof (not satisfactorily resolved in Alaska v. US (2005));34 – the requisite type of knowledge of an alleged historic claim;35 – problems over the requisite type of acquiescence (and non-acquiescence/protest), and how widespread this must be;36 – whether the concept of ‘vital interests’ is another international requirement for proving an historic waters claim.37 1.1.1.1 Clarications of some only of such issues in Alaska v. US (2005) Undoubtedly in this recent case the whole doctrine of historic waters was analysed – most particularly by the Special Master at rst instance – in greater depth, probably

29 30 31 32

33 34 35 36

37

See supra, p. 2, at p. 6, para. 33. See supra, Chapter 1, sections 2 and 3. Bouchez, op. cit., at p. 214. See supra, Chapter 12, section 3.2. As seen (supra p. 101, n. 2), for example, in the Fisheries case, this initial time factor was a matter of serious dispute between the Parties. Norway, in claiming an earlier point of time (19th century) to that accepted by the UK, pointed out that in the 19th century, there were no objections to the Norwegian claims, apart from France (which had not persisted in this, and had not followed this up by protest to a later Norwegian decree in 1889); and that accordingly the British protest in the 20th century was too late; and was anyway (allegedly) “isolated opposition”. Norway also argued in the case that a late objection to an historic claim should be rejected; and that in the Norwegian situation the Court should take into consideration the situation existing in 1906, so ignoring what happened subsequently (e.g., at the time of the alleged rst UK “intervention” in 1911). See supra, Chapter 12. See supra, Chapter 5, section 5. See supra, Chapter 14, section 1.2. See Chapter 14, sections 2 and 3. As seen, in El Salvador/Honduras, the ICJ, whilst saying that the historic status of the Gulf of Fonseca had been “generally accepted by the commentators”, seems to have assumed the existence of continuing universal acquiescence of the historic nature of the Gulf from somewhat scanty evidence. See supra, Chapter 1, section 2.2.4.2. See above, Chapter 15.

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because of the voluminous archival evidence, than in any other previous caselaw, whether international or domestic, albeit, as seen, in the context of great equivocation in the Alaskan pleadings over whether the claim was based solely on ‘historic title’ or also on a juridical one.38 Thus the case brought up all the traditional rules on historic maritime title, and conrmed that such rules must be strictly applied according to contemporary international standards, even retrospectively into at least the 19th century (in relation to the Alaskan ‘succession’ claim allegedly dating back to Russian times).39 This most recent US ‘historic waters’ case also claried certain aspects of such rules. For example, as to whether aspects of a so-called historic ‘claim’ made in pleadings before an international tribunal (and not contained in any of the judgments therein) may give adequate publicity of such a ‘claim’ to other nations not involved in the litigation.40 It also claried issues relating to relevant jurisdictional control: namely, ‘commensurate’ jurisdiction41 and intertemporal problems in this regard;42 and as to what truly amounts to exercise of effective jurisdiction, the thrust of the Special Master’s Report being that the control necessary to prove title to historic internal waters must relate to control of navigation rather than of shing. It is implicit, therefore, in the Special Master’s decision that control by the claimant State of shing by foreigners is merely further evidence of exercise of sovereignty over claimed internal waters, but may not in itself be sufcient to found historic title if, at the same time, innocent passage has been allowed to foreign vessels generally in such waters.43 Thus the case seems to have downgraded the importance of exercise of shery control per se, insofar as the Special Master there seems to have accepted that as assertion of national jurisdiction over coastal waters for purposes of sheries management frequently differs in geographic extent from the boundaries claimed as inland or territorial sea,44 such jurisdiction may at most nowadays only be viewed as subsidiary conrmatory evidence of internal waters status, as the crucial issue still relates to control of navigation as such. The case also claried the relevance to historic title of ‘vital interests’; as even Alaska had to admit that this doctrine was not vital to an historic claim.45 The Special Master seems to have accepted that “vital interests” may, in principle, have a subsidiary role to play as evidence of historic waters.46 This conclusion as to a down-graded role was also 38 39 40 41 42 43 44

45

46

See supra, Chapter 5, section 1.3. See supra, Chapter 16, sections 2.2.4, and 2.3. See Chapter 11, section 1.1.1. See above, Chapter 13, section 3. See Chapter 13, section 3.4. Chapter 13, section 4.1.1. See Chapter 13, section 4.3.1.1. This point had, as seen, already been made strongly by the Supreme Court in the Cook Inlet case (1975). However, it still argued that factors such as geographical conguration, economic interests and self defence reinforced a nding that the Alexander Archipelago comprised historic waters. He added, as seen supra, Chapter 15, section 5.2.1.1 that, in effect, the US federal authorities might have formerly slept on their rights; and that perhaps the US should have made arguments against the doctrine in the earlier case of Alabama and Mississippi Boundary Case.

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supported, on the examination of such issues, by the ICJ in the previous international legal context of the El Salvador/Honduras case, where the ICJ interpreted the 1917 Gulf of Fonseca judgment as referring not only to “vital bay” aspects (such as strategic and defence requirements of the coastal State (so “importing a further reason”), but also “[o]ther reasons” which are the “usually recognised ones”, such as acquiescence, thus making it clear that such former ‘vital interest’ considerations are still essentially extraneous to the contemporary legal requirements for historic title.47 Thus the true role of vital interests would appear to be no more inuential than in some other aspects of the law of the sea, as, for example, in the context of Art. 4 of the TSC (1958) relating to drawing of particular straight baselines.48 This may also mean that the whole concept of ‘vital’ waters is now an anachronism anyway: as, for example, such ‘vital’ interests may now be catered for under alternative legal concepts to that of historic bays and waters.49 The Alaska v. US (2005) case is also useful in indicating, for the rst time, what is the true legal signicance of exclusion of mention of particular waters as historic in any international publications, particularly those of the UN. As seen, the Special Master’s Report in the case accepted that the US (federal) citation of “two [UN] studies” which did not mention the Alexander Archipelago as having historic inland waters, was supportive of its position that other nations did not consider the waters of the Archipelago to be inland waters.50 For all this apparent clarication of the supposed rules and principles, the case also shows somewhat controversial analysis of some issues, most particularly what amounts to a ‘formal claim’ of historic waters and exactly what is the burden of proof.51 On the rst issue, the fact that the so-called ‘claim’ to inland waters in the Archipelago was

47 48

49 50 51

See supra, Chapter 15, section 2 and 5.2.2. The possible redundancy of historic waters more generally in contemporary international law, as a now-unnecessary appendage to the law of the sea, can be seen, for example, in the economic and historical interests of a coastal State having been catered for by the expanded straight baseline system. As seen, for example, in the Australian case of Raptis v. South Australia (see supra, p. 250, n. 17), it was stated that in a case where Article 4 of the TSC was in issue as well as possible historic waters status, “[s]ome of the factors” relating to historic bays (such as, for example, “economic importance and vital interest”) are also “relevant” to the application of Article 4 (of the TSC); and that, on “one view” (viz, that the regime of historic bays is an exception to the general rules), “if the waters come within Article 4 and are enclosed by straight baselines, they are not historic . . .”. However, in the instant case, he found (relative to the applicability of Art 4 of the TSC) “it unnecessary to decide whether the waters [were] historic bays”. The implication, as seen, of such a statement is that it is essentially an academic matter – looking at the situation in contemporary times at least (i.e., post 1958) – whether a claim to coastal archipelagic waters as internal waters is based on juridical principles or exceptional (i.e., historic title) principles. In other words, there may be an ‘interchangeable’ scenario relating to the two regimes which are (because of past uncertainty in the law) is nonexclusive. See supra, Chapter 15, section 5.2.3. See supra, Chapter 1, section 2.2.4.3. See supra, Chapter 7, section 2.3, and Chapter 10, section 1.1.

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made in the ABT case in 1903 in a hypothetical context and possibly without ofcial Government sanction, only seems to have complicated the doctrine.52 As has been discussed, this so-called ofcial US ‘claim’ only came about in the most backhanded manner – namely, for essentially extraneous purposes during argument in the course of international arbitration, being, in the opinion of this writer, only raised opportunistically as a legal argument within the Tribunal to counter a supposed British argument in connection with the relevant ‘treaty shoreline’ running across the mouths of the inner headlands (bays) of the Archipelago and thus arguably amounted to no governmental ‘claim’ at all.53 1.1.2

Difculties arising from intertemporal problems

1.1.2.1 The status of the enclosed historic waters is essentially the same today as that in the case of juridical claims Even the supposed need for exceptional title behind historic claims today seems doubtful, as the inconsistent Alaskan pleadings in Alaska v. US (2005) evidenced.54 The ‘exceptional/juridical claim’ aspect had much relevance in the case, inasmuch as Alaska, in relying on alleged US historic waters title in this instance, impliedly acknowledged that the alleged US maritime claim may not have been legal at its inception; and that it may thus actually have abrogated the then-contemporary general rules of international law.55 However, with some ambivalence in its pleadings, Alaska also alleged there, inter alia, that “[t]he United States characterised its position [on inland water status] as being entirely in accord with international law and dictated by the geographical conguration”.56 Judge Oda appears in his Dissenting Opinion in the (preceding) El Salvador/Honduras case,57 to have supported the view that, on true historical analysis of the doctrine of historic waters, there is not (nor need be) any ‘exceptional’ title behind an ‘historic’ claim. It is noteworthy also that Judge Oda stated that the words “historic bay” were “certainly not meant to suggest that the legal status of the waters is anything other than that of the ‘internal waters’ of the coastal State”, as in the case of normal (juridical) bays; by which words he seems to be implying that both juridical and historic bay

52 53 54 55 56

57

See above Chapter 7, section 2.3.2. See supra, Chapter 7, section 2.3.2.2. See above Chapter 5, section 1.3. See supra, p. 51. Supra, Chapter 5, section 1.3. It has been noted in this context that the victorious litigants in the Alabama and Mississippi Boundary case (supra p. 19) both led exceptions to the Special Master’s Report in that case advocating alternative methods of delimitation, a factor which has been described as suggesting the questionable soundness of the historic waters doctrine (seemingly in the US context). It may be noted also in the US context that in its original draft, the US Submerged Lands Act, reference to “inland waters” was in fact made in very broad terms, to include “all estuaries, ports, harbors, bays, channels, straits, historic waters and sounds” (emphasis added). The ‘historic’ wording was later deleted. See supra, Chapter 5, section 1.2.

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regimes are identical in terms of jurisdictional competences,58 so that the difference in mere title between the two concepts is essentially academic. However, as seen,59 this may not necessarily be the case in all instances of historic waters. 1.1.2.2 Possible retrospective incorporation of past historic claims into juridical ones Some academic commentators have viewed the doctrine of historic waters as having been overtaken by the present-day law of the sea; and have noted the possibility of contemporary redundancy of historic title where such past title is now compatible with a juridical claim. Blum, for example,60 has stated that the “provisions [of Art. 7 TSC (now Art., 10 of the LOSC) ] [were] likely to eliminate many problems relating to the juridical status of a great number of hitherto ‘historic bays’”. Several examples of such potential ‘incorporation’ exist, not only where indentations with modest mouths now qualify as juridical bays (under Art. 10 of the LOSC),61 but also, more interestingly, where the more expansive straight baseline system now endorsed by international treaty has been later adopted by an ‘historic-claiming’ State. For, in an intertemporal sense, a claim that was possibly invalid at its inception may, with more liberal rules later developing (e.g., 24-mile closing lines for bays or straight baselines for enclosure of coastal archipelagoes) be seen to achieve retrospective legality ipso jure. For example, Bouchez62 has opined that with the advent of the 24 mile ‘bay’ rule, “the 58 59

60

61

62

Supra p. 2, at p. 734, para. 4. See supra, Chapter 5, section 3.7. As there seen, just as the ‘exceptional title’ argument may have little in the way of repercussions for acquisition of historic title, so also it is doubtful whether the ‘historic’ factor (even if truly based on ‘exceptional’ title) affects in any practical way the status of internal waters today in terms of the jurisdictional powers therein of the coastal State which would in any event arise under a juridical claim, such as, most particularly, a right of denial of innocent passage to foreign ships. This would certainly be the situation in the case of claims to ( juridical) bays, where even under contemporary law their enclosed waters are internal and not subject to any right of innocent passage (cf. Art. 8 (2) of the LOSC). However, in the case of a claim to non-bay waters on historic grounds, e.g., in the case of a coastal archipelago, there might, as seen, be some practical value in persisting in (or even retrospectively attempting articulation of ) an historic claim even where contemporary law of the sea (Arts. 4 of the TSC and 7 of the LOSC) would legitimise them as enclosed internal waters anyway. Op. cit., at p. 268. Note the word “hitherto”. This may imply that bays automatically now lose such historic status if under 24 miles wide etc. As another commentator (D. Pharand, supra p. 39, n. 3, at p. 3)) has perceptively noted, the view stated on behalf of Norway in the Fisheries case to the effect that since there was no denite rule of international law limiting the mouths of bays to 10 miles, the concept of historic bays could not longer be “considered as an exception” was “defensible” at least before the treaty regime of 1958, but that this “is no longer the case today”; and (id., at pp. 4, 5) in the light of the now 24-mile rule, and Article 4 of the TSC, it is “no longer necessary for states to rely on an historic title to claim a number of otherwise historic bays as internal waters”. In, for example, the US context this situation arises in the cases of Chesapeake and Delaware bays (see infra n. 70). Op. cit., at p. 216.

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number of historic bays will be substantially reduced”, perhaps implying here retospective withdrawal of their former status by automatic operation of law. For such reasons, McDougal & Burke have come to a similar opinion;63 and in a broader scenario, Blum has indicated64 that, for example, the ICJ’s judgment in the Fisheries case, by stressing the concordance of the Norwegian straight baselines with the general law, may have reduced the scope of historic waters by making “the exception to the rule one aspect of the general norm” in the historical trend towards more expansive coastal zones. At least one reference in US caselaw shows a similar understanding in a US geographical context. For a citation of ofcial correspondence in US v. Louisiana65 stated that “[t]he Department [of State was then] unaware of any evidence regarding a claim . . . [to] historic bays in any other area [of the US] which would not now qualify as a legal bay [under Art. 7 of the TSC]”. The implication here is of a denial in contemporary international law of the existence of such an historic claim in any US area, as all now t into an international legal framework. Such a situation statistically reduces the importance of historic waters, turning it into a doctrine concerned, at most, only with past truly ‘exceptional’ claims. To this extent, in a practical sense, the role of historic waters has not only become outdated, but also redundant; and it seems to be theoretically correct for States to at least voluntarily substitute their former ‘historic’ claims for ‘juridical ones’ (subject to any federal State complications);66 insofar as an ‘historic waters’ claimant is (normally) constitutionally entitled to take advantage of the more liberal contemporary rules of the law of the sea; and because, as seen, in a typical historic waters case, the claim to sovereignty (over internal waters) under historic title may be no more advantageous to the claimant, and no more disadvantageous to other States, than a claim based squarely on the contemporary law of the sea. However, as against this, there is the so-called doctrine of acquired rights and thus the possible continuing legality of such claims, in the case of bays at least, under the LOSC (see below).67 There is also the consideration that, in some unusual situations at

63

64

65

66 67

Op. cit., at pp. 357, 358 (emphasis added). See also D.W. Nixon’s Report in Tunisia/Libya supra p. 6, at, p. 327, where he says that a signicant aspect of (now Art. 10 of the LOSC) is that the exception clause for historic bays entails that the class of historic bays “grew much smaller when many claimed historic bays became juridical bays under the new 24-mile rule” (emphasis added); and that since the 1958 Convention (the TSC), “the major function of historic bays has largely disappeared”; but that it is “possible that waters other than those in bays may be claimed on historic grounds, and examination of decisions on historic bays may [still] be fruitful for appraising such claims”. Op. cit., at p. 286. Cf., for example, the Philippines’ invocation of historic waters at UNCLOS I (cited by Blum, op. cit., at p. 292) which, it was said, applied to archipelagoes in the same way as to historic bays (O.R., vol. IV (Committee II), at p. 7); so (id., at p. 293) showing the doctrine of historic waters was invoked as underlying a (seemingly juridical) claim to waters in an archipelago as internal waters. Of a letter of April 4, 1970, from J.N. Mitchell (US Attorney-General) to W.P. Rogers (US Secretary of State) (emphasis added). See Special Master’s Report of 1974 at p. 17 (US Ex. 114)). See above Chapter 17, section 3. See below n. 74.

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least, the status of an historic bay may have become objectively ‘fossilised’ in international law. For example, in a statement analogously relevant to this issue in the main judgment of the ICJ relating to the Gulf of Fonseca in the El Salvador/Honduras, it was stated that “the fact that the Gulf of Fonseca would today qualify geographically as a ‘bay’ cannot now call in question or replace its historic status”,68 seeming to imply that later legitimation of its status could not defeat its erstwhile historic status or regime. There is also the possibility that in a colonial or federal situation, the sovereign authority may, if only for reasons of equity, be barred from replacing or disclaiming a past historic claim which has ripened as such.69 Despite such problems, there are examples where historic claims have, whether expressly or impliedly, been converted into contemporarily-formulated juridical zones. Thus past so-called ‘historic bays’ may today either become juridical bays (as in the case of the traditional US historic bays of Delaware and Chesapeake),70 or become included in an expanded straight baseline system under (now) Art. 7 of the LOSC,. Examples of the latter include, as seen, the Kenyan claim on 6 June, 1969 to Ungwana Bay which was then declared an “historic bay constituting internal waters”;71 and is now included within the later (conventional) Kenyan straight baseline system of 1979; and certain Canadian so-called ‘historic bays’ (following the 1910 Arbitration), seven of which are now included in the Canadian straight baseline system for Nova Scotia and Newfoundland.72

68 69 70

71

72

See supra, Chapter 3, n. 14. See supra, Chapter 17. See, regarding these US bays, S.A. Swartztrauber, The Three-Mile Limit of Territorial Seas, (1972) at p. 227. Goldie (supra p. 276, at p. 241) maintains that the Supreme Court in US v. Maine (420 US 515 (1975)) was not disposed to disturb the Special Master’s nding on Chesapeake and Delaware bays – which “since the beginning of the Union” had been regarded as historic bays; and that these bays “were, in effect, less than twenty-four miles [wide] and were therefore internal waters of the respective States without need for adducing historical evidence[which is] clear beyond doubt”. This implies that in effect these bays had retrospectively slipped into the category of juridical bay, their waters becoming ipso jure internal waters with the new rule. Under the Kenyan Territorial Waters Act (No. 2 of 1972): see Scovazzi et al., Atlas of the Staight Baselines, 2nd ed, 1989, at pp. 34 and 160. But not Chaleur, Miramichi or Egmont bays: see Map 8 and Scovazzi, id., at pp. 20, 94, 95. Scovazzi (op. cit., supra p. 118, at p. 329) also remarks about the El Arab Gulf claim by Egypt as historic – enclosed in a 1990 decree by a series of straight baselines – that its past-claimed ‘historic’ character seems to be forgotten today. See also D.W. Nixon’s Report – Technical Annexe to Reply in Tunisia/Libya, Pleadings, vol. IV, 320, at 324, who, in discussing the Canadian bays recognised as historic in the 1910 Arbitration, comments that “[t]oday, all but two of the bays (Fortune and Barrington) would probably be considered juridical bays [under Art. 10 of the LOSC]”, as it is “noteworthy that the closing lines are very conservatively drawn and are based upon the geographic natural headlands”. In the case of a possibly analogous situation in Europe – the Italian claim to the Gulf of Taranto in the twentieth century – Ronzitti has commented that he does not attach much importance to the argument that Italy, having initially claimed the Gulf as historic, could be excluded “implicitly” from later relying on a juridical claim – here under Article 4 of the TSC (see supra, Chapter 5, n. 68).

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66°

65°

64°

63°

62° 49°

49°

MAQUEREAU P.

GULF OF

MISCOU I.

48°

ST LAWRENCE

BAY OF CHALEUR

48°

MAGDALEN I.

CA

P. ESCUMINAC

47°

DA

NA

47°

BAY OF MIRAMICHI

P

R

WEST P.

EGMONT BAY

IN

CE

ED

WA

RD

IS L A

ND

CAPE EGMONT

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DY UN FF YO BA

45°

TIA

CO

S VA NO

45°

SCALE 1 : 2 000 000

0

20 66°

40

60 NM 65°

64°

63°

Map 8. Chaleur, Miramichi and Egmont Bays, Canada

62°

Conclusions

295

However, in principle, any sort of ‘automatic’ disclaimer obligation on ‘historic claimant’ States in this situation by mere operation of law would appear to be dubious, even in a unitary State context, even if, as seen, some commentators (including Judge Oda in the El Salvador/Honduras case)73 seem to imply that such a revision applies ipso jure today (e.g., in the case of past claims to bays between 6–24 miles wide at their mouths), without any need for an accordant declaration of withdrawal of the historic element of claim by the claimant State. However, the fact that the of the law of the sea, by treaty, still expressly preserves historic claims for bays at least (now under Article 10 (5) of the LOSC) seems to conclusively rule against any such effect by automatic operation of law.74 1.1.2.3 The doctrine may, in any case, be seen to have been overtaken by now-expanded maritime zones in the law of the sea Quite apart from the fact of the expanded nature of baselines enclosing internal waters in the contemporary law of the sea affecting past historic claims, the general expansion of existing maritime zones such as the now-12 nm territorial sea regime, and shery zone jurisdiction (culminating in the 200nm EEZ), may in any event be seen as providing an adequate, or even better substitute for, an historic waters claim: as these developments allow a State to take advantage of traditional economic ‘vital interests’ at least which have been supposedly catered for by past historic claims.75 Such a viewpoint, for example, in the post UNCLOS III scenario, has (as seen) appeared in a US protest note (articulating such interests) to Australia of 10 April, 1991: namely, that “[t]he United States is of the view that, with the increased maritime jurisdiction now permitted under customary international law reected in [the LOSC] . . ., no new claim to historic bay or historic waters is needed to meet resource and security interests of the coastal State”.76 Furthermore, such a viewpoint indicates there is also no need for a separate ‘third category’ of bays (or waters) in addition to juridical and historic bays

73

74 75 76

See supra, Chapter 17, p. 273. As has been seen in Chapter 17, in principle, any sort of ‘automatic’ disclaimer by mere operation of law would appear to be dubious even in a unitary (independent) state context. Judge Oda in the El Salvador/Honduras case seemed, as seen, to imply that such a revision applies ipso jure today in the case of historic bays, some bays named ‘historic bays’ in classical treatises since early in the 20th century being now regarded as normal ‘bays’ owing to the enlargement of the distance criterion required for the closing-line of a bay from the rather narrow distances. He viewed other types of historic waters (citing the 1951 Fisheries case in the case of so-called coastal archipelagic waters) as being “now enclosed as ‘internal waters’ by the new concept of straight baselines [under the TSC and the LOSC]”), as also are ‘archipelagic waters’ of mid-ocean archipelagic States. As seen, however, any such doctrinal ‘redundancy’ aspect has problems for a federal/component state context as in the recent case of Alaska v. US (2005); for in such a situation, the federal authorities may wish – for good policy reasons – to delay actual implementation of such extensions of international law in terms of making a juridical claim. See above p. 9. See supra, Chapter 15, section 5.2.3. See above Chapter 15, at n. 60 (emphasis added).

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(or waters) respectively which may be independently labelled either as “vital bays” or as “vital waters”.77

2. Reasons for Still Accepting the Doctrine 2.1 Widespread and longstanding evidence of acceptance of the doctrine There is no doubt that despite academic and (some) judicial reservations about the existence of the doctrine of historic waters, it is still generally viewed as an established part of the international law of the sea, if only, as seen above, as part of a State’s acquired rights. This is despite the obvious fact, as seen above, that new provisions in maritime treaty law – and new zones such as the EEZ – may now be seen to provide for “activities which have traditionally lacked adequate bases in international law”.78 In fact few law of the sea experts – such as, pre-eminently, in more recent times, Judge Oda in El Salvador/Honduras79 – have doubted whether a doctrine of historic waters ever did exist.80 Most past academic writers81 have been of the opposite opinion; and have even welcomed the doctrine as an sort of ‘safety valve’ to excessive claims.82 Bouchez, for example, states that the existence of such claims is “beyond all doubt”; and other recent commentators have treated the mere existence of past existence of

77

78 79

80

81 82

See supra, Chapter 15, section 5.2.3. As seen, some writers have pointed out that ‘vital’ interests (see Chapter 15) may now be catered for “under alternative legal concepts to that of historic bays”. For example, Judge Arechaga, in his Separate Opinion in Tunisia/Libya (supra, p. 4, at pp. 123/4, para. 82) stated that it would be “contrary to elementary legal notions and to basic principles of intertemporal law” if the continental shelf doctrine (a “new legal concept” in 1958) had the effect of “abolishing or denying acquired and existing rights”. In that case, for example (see the Tunisian Reply, Pleadings, vol. 4, at p. 20, para. 1.22), Tunisia had argued that its historic rights went back to an “époque immemoriale” before the appearance of a distinction between zones of jurisdiction such as internal waters and territorial sea (which had been since adopted by positive international law); and (id.) anyway this zone would today be considered part of the EEZ; but, although absorbed into it (para. 1.23) having been in classic law an exception to the regime of the high seas, this allegedly could not have the effect of cutting off rights acquired from time immemorial. See above Chapter 15, section 5.2.3. See also, e.g., Zimmerman, ‘The Doctrine of Historic Bays: Applying an Anachronism in the Alabama and Mississippi Boundary Case”’ (1986) 23 San Diego L. R. 763, at p. 788 (“the doctrine of historic bays is obselete in modern international law”, for example, (id., at pp. 788/9) in light of the UNCLOS III EEZ concept). Cf., e.g., Goldie, supra n. 70, at p. 218; and Blum, op. cit., at p. 339 (who concludes that the “true interest of the international community” lies in reducing to a bare minimum the number of rules which “are derogatory of the uniform rules of general international law and are relics of an ancient and more particularist legal order”). See supra, p. 10. See Goldie supra n. 70, at p. 218.

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claims to historic maritime zones as evidence of a customary rule.83 Furthermore, as seen, international treaty law endorses such an existence through brief mention in the case of bays in the (now) LOSC.84 There is no doubt, then, that the existence of the doctrine of historic waters is still more generally viewed as an established part of the international law of the sea.85 Additionally, the doctrine of historic bays has been so far referred to with apparent approval in past important international decisions – the 1910 North Atlantic Fisheries Arbitration, the Gulf of Fonseca decision (1917), the Fisheries case (1951), the Tunisia/ Libya case (1982) and, most particularly, in the El Salvador/Honduras case relating to the Gulf of Fonseca, where, in the unusual setting of a pluristate bay at least, the doctrine was positively applied and re-afrmed.86 Further evidence of the doctrine’s existence is that even States which have contested historic maritime claims of another State in international litigation have generally accepted the existence of such a regime in the law of the sea.87 The US caselaw also in the ‘tidelands cases’ has shown judicial support for the doctrine, although such federal caselaw must, as seen, be treated with some circumspection in terms of its international precedential value.88 The latest in the line of US cases, Alaska v. US (2005), shows, however, the difculty of proving historic waters in contemporary times, particularly where there has been apparent federal ofcial conduct inconsistent with such a claim.89 2.2 Rights under the historic regime may still be more advantageous for the claimant State As seen above, there may be good reasons, jurisdictionally for still relying on historic title even where nowadays non-historic (juridical) title could also be claimed to the very same areal extent of waters.90 83

84 85

86 87

88 89

90

For example, Scovazzi (op. cit., supra p. 118, n. 6, at p. 322) alleges that the doctrine of historic waters exists because the are today a number of States which “annonce des prétentions fondées sur un titre historique”. See above, Chapter 2, section 2. But in some cases with severe reservations: see, e.g., Zimmerman, supra, n. 79, at p. 788 (“the doctrine of historic bays is obselete in modern international law” in the light, e.g., of the EEZ concept). See supra, p. 2, at pp. 322/3, 130, 73. For example, Libya admitted in the Tunisia/Libya case (Pleadings, vol. 1, at p. 505) that there was “no doubt” as to the existence of the category of historic bays in a “sui generis” sense, based on prescriptive right, long usage and acquiescence of other maritime powers. See supra, Chapter 17, section 3. As in the case of the so-called ‘Bayard’ letter which assumed such signicance in the case both before the Special Master and the plenary Supreme Court (see supra, Chapter 10, section 2.1.1.1). As in the case of retention of rights of innocent passage in certain internal waters areas behind a straight baseline system under Art. 7 of the LOSC; but cf. the comments of the ICJ in El Salvador/Honduras: supra, p. 2, at pp. 592/3. See also, regarding the Italian claim to the Gulf of Taranto, T. Treves, ‘Italy and the Law of the Sea’ in T. Treves and L. Pineschi, The Law of the Sea: The European Union and its Members States. Nijhoff (1997), at p. 329.

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3. Conclusion: How may the Doctrine be Best Interpreted Today in Historical Retrospect? The doctrine of historic title to waters today may justiably be seen, at least in retrospect, as a temporary legitimising mechanism91 in an inter-temporal process taking in a broad range of situations. Thus it includes, at one extreme, blatently illegal original claims which would still be otherwise illegal today; e.g., historic bay claims to areas with mouths well in excess of the present 24-mile rule distance or absurdly distant areas of the high seas (as in the short-lived Russian ukase featuring in Alaska v. US (2005)).92 It also includes, at the other extreme, those claims which would now be valid in contemporary law. As such, it may perhaps be argued that in historical retrospect historic claims in the now-legitimated categories are contemporarily redundant, at least since the 1958 and (now) 1982 law of the sea treaty regimes came into being; with the result, as seen, even that many of such traditional claims may have lapsed ipso jure and automatically, or, at least, have been voluntarily replaced by a juridical claim.93 As Blum stated after the Gulf of Sirte incidents following Libya’s attempted historic claim there,94 a “[c]laim to historic waters in general (and to historic bays in particular) are relics of an older and by now largely obselete regime”. As he concluded: “[i]t will thus be readily understood that, while the international community may still be willing to consider, in exceptional circumstances, the validity of existing claims of this kind, it has rmly rejected any attempts to establish any new maritime claims of an extravagant nature”; and that “the current law of the sea has frozen the existing situation in regard to ‘historic bays’ to prevent the emergence of new ‘historic’ claims.95 All such above considerations clearly and intrinically militate against any new historic claims. As O’Connell implies, now the 24-mile rule is xed by treaty for bays, any “future historic claims” will have to depend on an “avowed breach of international law”; and so are unlikely to come about because of the unlikelihood of international

91

92

93 94 95

See, e.g., Y. Blum, ‘The Gulf of Sidra Incident’ ((1986) 80 A.J.I.L. 668) where he views (at p. 676) the concept of historic bays (and historic waters in general) to be “originally intended to provide as smooth as possible a transfer from some vague and obselete notions of the late Middle Ages to the more stringent requirements of the modern law of the sea”; and says that (id., at p. 677), “new maritime zones” were intended to bring about a gradual phasing out and eventual elimination of the phenomenon of ‘historic’ claims per se, through their “de facto incorporation into the general international law of the sea”. Here, obviously, continued reliance on historic title will be necessary to maintain an internal waters claim: see e.g., W. Edeson, ‘The Validity of Australia’s Possible Maritime Historic Claims in International Law’, (1974) 48 Australian L. J., 295, at p. 297. See above Chapter 17, section 1.2. Supra, n. 91 at p. 671. Id., at p. 676. In any event, its seems clear that, even with sufcient passage of time etc. an internal waters claim once clearly and wholly based on juridical principles, may not later evolve (or be manipulated into) into an historic claim – a matter of some relevance to the case of Alaska v. US (2005). M.W. Reed, op. cit., at p. 92 n. 137, notes, though, that the issue of whether a long-standing “juridical bay status” may not support an historic bay claim has “yet to be litigated” in the US courts.

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acquiesence to them; unless a move towards claims based on “vital bays” may restore the status ante quo.96 What, then, is the best way to view past claims? On the latter question, it seems that, in retrospect at least, existing historic claims are, in reality, usually now to be viewed as an alternative means of establishing sovereignty over waters which also qualify as internal waters under ‘juridical principles’; though they may once have constituted sea areas which needed the historic doctrine to establish their legality. Indeed, some ‘claims’ categorised as being ‘historic’ today – such as the Sea of Azoz – were probably misnamed or at least loosely entitled as ‘historic’, because they were – even at the time of the inception of the ‘claim’ – in any case internal waters in the light of then-existent international law or at least constituted ‘ancient rights’.97 Likewise, some early claimed maritime historic rights – such as sedentary seabed sheries and sponge exploitation (as, e.g., off Tunisia in the Gulf of Gabes) can be seen in retrospect as an example of exploitation of seabed biological resources before the formation of broader customary law of the sea in the classical period and the later development of the continental shelf doctrine98 or the EEZ regime. It is signicant that the most excessive maritime claim of the nineteenth century – to the seas off Alaska by the Russian ukase of 1821– failed, as seen in Chapter 6, because of immediate protest by the major maritime powers of the time. Even in a past ‘pluristate’ historic bay claim such as to the Gulf of Fonseca, the now 12-mile territorial sea may be seen as giving a satisfactory regime to each of the littoral States on the basis that this normal juridical rule now would totally absorb the waters of the Gulf.99 It may also be the case that even well-established claims to historic waters have quietly fallen into dissuetude. It is interesting to note, for example, in Alaska v. US (2005) that Alaska, faced with a dearth of evidence to show any effective US prohibition of navigation in the Alexander Archipelago, actually countered this with the claim that the US “routinely allow[ed] foreign vessels into its historic and other inland waters – for example, Chesapeake Bay – without relinguishing its claim to the waters”.100 From this statement it appears that even States which have made accepted historic claims to bays may not in fact, at least in present times, insist on their theoretical full rights of control therein. In conclusion, an alternative way of looking at the whole issue of historic waters today might be to deny the need for, or existence of, a doctrine of such historic claims 96 97

98

99 100

Op. cit., at pp. 425/6. See the UN Memorandum on Historic Bays (supra p. 11) at p. 3, para. 12. This sea is, however, claimed by Russia by virtue of “immemorial practice”: see Strohl, op. cit. at p. 267. See the Memorial of Tunisia in the Tunisia/Libya case, vol. I, at paras. 4.102, 4.103; and oral pleadings by Dupuy, (Pleadings, vol. IV, at pp. 475–479) on the relationship between (earlier) sedentary sheries and the (later) continental shelf doctrine where (id., at p. 478) the relationship between the regime of sedentary sheries and the regime of exploitation of the resources of the continental shelf in respect of living resources was stressed. See Judge Oda’s Dissenting Opinion in El Salvador/Honduras, supra p. 2, at p. 758, para. 48. See Alaska’s Exceptions to the Report of the Special Master (on Motions for Summary Judgment), at pp. 12/13.

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as applying erga omnes,101 and to view any traditional rules as operating, in the past and today, essentially in a subjective quoad hunc/hos fashion like some other historic maritime rights.102 On such a view, the matters of primary importance would be those relating to legitimation of legal title through express or implied recognition of title under a doctrine of ‘opposibility’ on a State-to-State basis rather than necessarily under an erga omnes regime. If, as seen, this were the case, the intractible problems of applying the test of acquiescence103 to any claim to historic waters would be avoided except in those cases, perhaps, where, as in the case of the Gulf of Fonseca, there is an exceptional situation – a pluristate bay – which may, because of the intrinsically multilateral interest involved, call for an objectivised regime erga omnes.104

101

102

103

104

Blum, as seen (supra, Chapter 14, section 4, n. 163) encapulates the matter in terms of whether such an exceptional title is valid erga omnes, or only against States which have either expressly assented to, or at least tacitly acquiesced in it. See supra, Chapter 14, section 4.1. Analogies with the ‘persistent objector’ problem in the formation of customary international law also seem to arise here (see supra, Chapter 5, section 2.1) as well as issues of more specic individual inter-State opposibility. Chapter 14, section 3.1. Because of the abovementioned uncertainties (in Chapter 14) on the supposed requirement of acquiescence for proof of historic title, questions accordingly arise as to whether, in fact, the status of historic waters only applies subjectively on a bilateral (or multilateral) ‘quoad hunc/ hos’ basis according to which State or States have expressly or tacitly agreed to/acquiesced in an alleged ‘historic’ claim on an analogy with historic rights at sea – such as historic shery rights on the high seas (see supra, Chapter 1, section 1.2) – or as some form of estoppel. The latter principle, for example, was raised by Libya in the Tunisia/Libya case on the question of international acquiescence alleged historic claim by Tunisia to the Gulf of Gabes, where it was alleged that Tunisia put the matter specically as one of acquiescence as if to create some sort of “estoppel” (see above Chapter 14, section 4). This viewpoint may give greater clarity to such issues as compared with the conventional doctrine that once there is some (or sufcient) element of international acquiescence, the ‘historic’ status applies objectively erga omnes, i.e., against all States in a blanket fashion. As seen, in El Salvador/Honduras, El Salvador in fact implied that an historic claim might initially be subjectively applicable but would eventually become objectivised erga omnes by incremental effect (supra, pp. 242/3). For it claimed that even if the 1917 judgment initially only bound the “direct parties to the litigation”, the legal status of the Gulf of Fonseca recognised there had since been “consolidated in the course of time” to “extend to third States”, including the major maritime States, as an “objective legal regime”. Despite this, as seen, El Salvador also argued that the “decisive matter” arising from the 1917 case was that of “acceptance by Honduras of the legal status of the Gulf; so that in the more than 70 years since the judgment, Honduras had not only not questioned or made a reservation respecting the “common ownership” of the waters, but had “continuously taken advantage of the common character” of them, through navigation and shing activities. It was evident, therefore, that El Salvador used a fall-back argument in the case to apply the historic regime against Honduras which fell short of an ‘erga omnes’ position.

Appendix Lists of Alleged Historic Bays It will be noted that such ‘listings’ by post-war commentators vary quite considerably, several including bays which others omit, which in itself points up the selectivity of such supposed ‘historic’ examples of maritime claims.Scovazzi et al., for example, point out in their Foreword1 that decisions of the US Supreme Court were omitted in that work “since these decisions are probably not relevant for the external relations of the [US]”. Also the UN Juridical Regime omits giving a list,2 stating that even a centralised international registration system of historic claims (as has been mooted in the past) might prove to be impracticable. It may be noted again that the Alexander Archipelago off SE Alaska does not feature as an example of historic waters in any of these listings. A sample of post-war listings of historic maritime claims include: Argentina River Plate Estuary (UN Memorandum);3

1

2 3

Atlas of Straight Baselines, Guiffrè Editore, 2nd ed., 1989, at p. vi. Scovazzi repeats this view (id. at p. 62), saying that the Atlas does not include bodies of waters “whose historic or internal character has been declared by decisions of the Supreme Court [of the US] . . . since the international relevance of these decisions is open to discussion” (emphasis added). Supra, p. 2, at pp. 23/24. UN Memorandum on Historic Bays, UN Doc. A/CONF. 13/1.

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Australia (see generally Strohl)4 Anxious, Encounter, Lacepede and Riovoli (Scovazzi,5 Nixon);6 Van Dieman Gulf (also Nixon), Buckingham Bay, Blue Mud Bay, Cofn Bay, Streaky Bay, Spencer Gulf, Investigator Strait/St Vincent’s Gulf, Exmouth Gulf (also Nixon), Roebuck Bay, Shark Bay (also Nixon); Broad Sound, Upstart Bay, Moreton Bay, Hervey Bay, Oyster Bay, Storm Bay (UN Memorandum). Bulgaria Stalin Bay and Burgas Bay (Nixon); Cambodia Certain Cambodian waters (Scovazzi); Canada Chaleur (UN Memorandum), Miramichi (Bouchez,7 Nixon, UN Memorandum), Egmont, St Ann’s, Fortune, Barrington, Chedabucto, St Peter’s, Mira, Placentia, St Mary’s (Nixon), Hudson Bay (Nixon, UN Memorandum); Conception Bay (Scovazzi,7 Nixon, UN Memorandum); the archipelagic Canadian waters (Scovazzi); Dominican Republic Santo Domingo and Escocesa (Scovazzi); (Bouchez and UN Memorandum add bays of Samana, Ocoa and Neiba); Egypt El Arab (Scovazzi, Nixon, UN Memorandum); Solum Bay, Abu Hashaifa Bay, Pelusium Bay, El Arish Bay (Nixon); France Granville Bay (or Cancale Bay) (Nixon, UN Memorandum); Netherlands Zuyder Zee (UN Memorandum);

4 5

6

7

Op. cit., at pp. 253–268. T. Scovazzi, in D. Pharand, and U. Leanza, The Continental Shelf and Economic Zone: Delimitation and Legal Regime, Kluwer (1993), 321, at pp. 326–328. D.W. Nixon, ‘A Comparative Analysis of Historic Bay Claims’: Technical Annexe to the Libyan Reply, in Pleadings (Tunisia/Libya), vol. IV at p. 321. Op. cit., at pp. 216–237.

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Norway Varangerfjord (Bouchez, Nixon, UN Memorandum); Vestfjord, Lopphavet (Nixon, Scovazzi, UN Memorandum). Portugal Sado Estuary, Tagus Estuary (Nixon, UN Memorandum); Guatemala/Central America Gulf of Fonseca (Scovazzi, Bouchez, UN Memorandum); Gulf of Amatique (Bouchez, Scovazzi); (Former) French Equatorial Africa Bays on Mondah, Cape Lopez, Loango, Pointe Noire and Corisco (Rio Muni), Estuary of River Gabon (UN Memorandum); Italy Gulf of Taranto (Scovazzi); Kenya and East Africa Ungwana (Scovazzi); Tadjura Gulf (UN Memorandum); Libya Gulf of Sirte (Scovazzi); Panama Gulf of Panama (Scovazzi); Philippines The ‘treaty limits’ of Philippines (Scovazzi); Sri Lanka Palk Bay (Nixon); Sweden Skelderviken and Laholm Bays (Nixon, UN Memorandum); Thailand Gulf of Thailand (Scovazzi); Bight of Bankok (Nixon);

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Appendix

Tunisia Gulf of Gabes (Nixon, Scovazzi, UN Memorandum); Gulf of Tunis (Nixon, UN Memorandum); UK Bristol Channel (Nixon, UN Memorandum); Firth of Clyde, Moray Firth (Nixon); (see also Strohl for further possibilities); USA Delaware and Chesapeake (Bouchez, Scovazzi, UN Memorandum); Penobscot (Bouchez, Nixon); Buzzards Bay (Nixon); Long Island Sound (Nixon, UN Memorandum); Monterey Bay, Santa Monica Bay (Bouchez); USSR/Russia White Sea (Strohl, Nixon), Cheshsk, Bajdaratsk, Penzhinsk, Vladivostok, Peter the Great Bay (Scovazzi, Strohl, Nixon), Sea of Azov, Kara Sea (also Nixon); Laptev Sea, East Siberian Sea, Chukchi Sea (UN Memorandum); Okhotsk (Strohl); Vietnam Gulf of Tonkin (Scovazzi).

Bibliography Books/Articles Balch, T.W., ‘The Alasko-Canadian Frontier’ (a published speech), Press of Allen, Lane and Scott, Philadelphia, 1902 (reprinted from the Jnl. of the Franklin Insititute for March 1902); —— ‘Is Hudson Bay a Closed or Open Sea’ (1912) A.J.I.L., 40; Barrie, G.N., ‘Historical Bays’, (1973) 6 Comparative and International Law Jnl. of Southern Africa, 39; Blum, Y.Z., Historic Titles in International Law, Nijhoff, The Hague (1965); ——, ‘The Gulf of Sidra Incident’ (1986) 80 A.J.I.L., 668; —— ‘Historic Rights’ in Encyclopaedia of Public International Law, vol. 2 (Amsterdam, Elsevier), 710–15. Boggs, S.W., ‘Delimitation of the Territorial Sea’ (1930) 24 A.J.I.L. 541; ——, ‘Delimitation of Seaward Areas under National Jurisdiction’ (1951) 45 A.J.I.L., 240; Bouchez, L.J., The Regime of Bays in International Law, Sythoff, Leyden (1964); Bourquin, M., Les baies historiques: Melanges Georges Sauser-Hall, Paris-Neuchatel (1952); Bustamente, A.S., The Territorial Sea, New York (1930); Butler, W.E., The Soviet Union and the Law of the Sea, Baltimore, John Hopkins Press (1971); Chevigny, H., Russian America, The Cresset Press (1965); Churchill, R.R. & Lowe, A.V., The Law of the Sea, 3rd. ed. (1999), Manchester University Press; Davidson, G., ‘The Alaska Boundary’ (Alaska Packers Association, San Francisco), 1903; Edeson, W.R., ‘The Validity of Australia’s Possible Maritime Historic Claims in International Law’ (1974) 48 Australian Law Jnl., 295; Gidel, G.C., Le droit international public de al mer, Sirey (Paris) (1934); Gioia, A., Titoli Storici e Linee di Base del Mare Territoriale, Edizioni Cedam, Padova (1990); Goldie, L.F.E., ‘Historic Bays in International Law – An Impressionistic Overview’, (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 211;

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Fitzmaurice, G.G., ‘The Law and Procedure of the International Court of Justice, 1951–54: Points of Substantive Law’, (1954) 31 B.Y.I.L., 371; Foster, J.W., ‘The Alaskan Boundary’ (1899) 10 National Geographic Magazine, 419; Francioni, F., ‘The Status of the Gulf of Sirte in International Law’ (1984) 11 Syracuse Jnl of Intl. Law and Comm., 311; Fulton, T.W., The Sovereignty of the Sea. Edinburgh, Blackwood (1911); Goldie, L.F.E., ‘Historic Bays in International Law – An Impressionistic Overview’ (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 211; Jessup, P.C., The Law of Territorial Waters and Maritime Jurisdiction, Jennings, New York (1927); Johnston, K.W., ‘Canada’s Title to Hudson Bay and Hudson Strait’ (1934), 15 B.Y.I.L., 1; Moore, J.B., ‘The Alaska Boundary’ (1899), vol. CLXIX, The North American Review, 501; Ngantcha, F., The Right of Innocent Passage and the Evolution of the Law of the Sea, London (1990); O’Connell, D.P., ‘Problems of Australian Coastal Jurisdiction’, (1958) B.Y.I.L., 242; Okun, S.B., The Russian-American Company, Harvard University Press, 1951; Pearcy, G.E., ‘Geographical Aspects of the Law of the Sea’, (1959) 49 Annals of the Association of American Geographers, 1; Pharand, D., ‘Historic Waters in International Law with special reference to the Arctic’ (1971) 21 University of Toronto Law Jnl., 1; ——, The Law of the Sea of the Arctic (1973); Prescott, J.R.V., The Maritime Political Boundaries of the World, London, Methuen (1985); Reed, M.W., Shore and Sea Boundaries, vol. III, US Dept. of Commerce, Washington (2000); Roach, J.A. and Smith, R.W., United States Responses to Excessive Maritime Claims, 2nd ed. Nijhoff, The Hague (1994); Ronzitti, N., ‘Is the Gulf of Taranto an Historic Bay?’ (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 275; ——, ‘New Criticism on the Gulf of Taranto Closing Line: A Restatement of a Different View’ (1985) 12 Syracuse Jnl. of Intl. Law and Comm., 465; Scobbie, I., ‘The ICJ and the Gulf of Fonseca’, (1994) 18 Marine Policy, 249; Scovazzi, T., Francalanci, G., Romano, D., & Mongardini, S., Atlas of Straight Baselines, Guiffrè Editore, 2nd ed. (1989); Spinnato, J.M., ‘Historic and Vital Bays: An Analysis of Libya’s Claim to the Gulf of Sidra’, 1983–84 13 O.D.I.L., 65; Scovazzi, T. in Pharand, D., and Leanza, U., The Continental Shelf and Economic Zone: Delimitation and Legal Regime, Kluwer (1993), 321; Stanley, K.W., ‘A Proposed Sea Boundary for Alaska’, 16 May, 1966, reprinted and edited May 1970 (Division of Lands, Dept. of Natural Resources, Alaska (Copyright National Bank of Alaska)); Swarztrauber, S.A., The Three-Mile Limit of Territorial Seas, Naval Institute Press, Maryland (1972); Strohl, M.P., The International Law of Bays, Nijhoff, The Hague (1963); Taylor, H., A Treatise on International Law, Callaghan & Co., Chicago (1901); Treves, T., Italy and the Law of the Sea?, in Treves, T., and Pineschi, L., The Law of the Sea: The European Union and its Member States, Nijhoff (1997). Volkov, A.A., Maritime Law (published Moscow, 1969, and translated from Russian, Jerusalem, 1971); Westerman, G.S., ‘The Juridical Status of the Gulf of Taranto: A Brief Reply’, (1984) 11 Syracuse Jnl. of Intl. Law and Comm., 297;

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——, The Juridical Bay, Clarendon Press, Oxford (1987). Zimmerman, J.M. ‘The Doctrine of Historic Bays: Applying an Anachronism in the Alabama and Mississippi Boundary Case’ (1986) 23 San Diego Law Review, 763.

General Treatises Digest of US Practice (1973), 243; (1974), 289; (1975), 388. Fauchille, G.C., Traité de droit international public, vol. 1, Paris (1925); Gidel, G.C., Le droit international public de la mer, Paris (1932–4); Hall, W.E., International Law, Oxford (1880); Hyde, C.C., International Law Chiey as Interpreted and Applied by the United States, 2nd ed. (1946); McDougal, M.S. & Burke, W.L., The Public Order of the Oceans, Yale U.P. (1962); Moore, J.B., A Digest of International Law, Vol. I, Washington (1906); Max Planck Institute, Encyclopedia of Public International Law, vol. II (1995); O’Connell, D.P., (ed. Shearer, I.A.), The International Law of the Sea, vol. I, Clarendon Press, Oxford (1982); Oppenheim/Lauterpacht, International Law, Vol. 1, 9th ed. by Jennings, R., & Watts, A., 630; Pallieri, G.B., Diritto Internazionale Publico, 7th ed. (revised) (1956). Rovine, A., Digest of US Practice in International Law (1974); Shalowitz, A.L., Shore and Sea Boundaries, vol. 1 US Dept. of Commerce (1962); Taylor, H., A Treatise on International Law, Callaghan & Co, Chicago (1901); Treves, T., and Pineschi, L., The Law of the Sea: The EU and its Members States, Nijhoff, The Hague (1997); Westlake, J. International Law, 2nd. ed, Cambridge (1910); Whiteman, M.M., Digest of International Law, vol. 4, Washington (1965).

Other Documents Attorney General Randolph’s Opinion (1 Opinions of the Attorney General, 32 (1793); Boggs, W., ‘The Alaskan Boundary Controversy’, 21 July 21, 1952, 1. Brief for the United States in Answer to California’s Exceptions to the Report of the Special Master, 130–131, US v. California: No. 5 Original (October Term, 1964); Certain Legal Aspects concerning the Delimitation of the Territorial Waters of Archipelagoes, by J. Evensen: UN Doc. A/CONF. 13/18 (November 29, 1957); Charney, J.I., Preliminary Report of Expected Testimony on the Subject of the Historic Waters of the Alexander Archipelago (expert witness for the state of Alaska in Alaska v. US (2005) of 15 February, 2002. Gough, B.M., Report on International Navigation Through the Waters of the Alexander Archipelago of Southeast Alaska (Alaska v. US (2005) of 7 January, 2002; House Committee on Interior and Insular Affairs, Hawaii/Alaska Statehood: 84th Cong. 1st Sess.: January 25, 28 & 31 & February 2, 4, 7, 8, 14: 15th ed., 16 (1955); ‘Juneau Hearings’: Hearing before the Committee on Commerce, US Senate, 92nd Cong. 2nd Session on Provisional US Charts Delimiting Alaskan Territorial Boundaries, May 15 1972. Serial No. 92–69. Juridical Regime of Historic Waters, Including Historic Bays (a study prepared by UN Secretariat): UN Doc. A/CN. 4/143 (March 9, 1962);

308

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Law Ofcers Opinions [UK], vol. 62, at p. 157; Memorandum by the Secretariat of the UN, Historic Bays (Preparatory Document No. 1) A/ CONF. 3.1, September 30th, 1957; Nixon, D.W., “A Comparative Analysis of Historic Bay Claims”: Technical Annexe to Libyan Reply, at p. 321 in Pleadings (Tunisia/Libya), vol. IV; Pleadings in the Fisheries Case (1951): vols. I, II, III, & IV; Symmons, C.R., Preliminary Expert Witness Report on behalf of the US Federal Government in Alaska v. US (2005), US-I-I, of 26 January, 2002.

Reports of Special Masters (in Chronological Order) US v. California, No. 6 Original (December 3, 1951: October Term, 1952); US v. Florida, No. 52 Original, (January 18, 1974: October Term, 1973; supplemental Report of December 30th, 1975); US v. Louisiana et al., No. 9 Original (July 31, 1974); US v. Louisiana (Alabama & Mississippi Boundary Cases) No. 9 Original (April 9, 1984); US v. Maine (Massachusetts), No. 35 Original, October Term, 1979; US v. Maine (New York, Rhode Island), No 35 Original: October Term 1983; US v. Alaska: Report of March, 1996; Alaska v. US, No. 128 Original (2004): Report of the Special Master on Six Motions for Partial Summary Judgment and One Motion for Conrmation of a Disclaimer of Title, March 2004.

Caselaw Alaska Boundary Arbitration (‘ABT’) (1903): S. Doc. No. 370, 61st Cong., 3d Sess., vol. 1, Award of the Tribunal; Alaska v. US 545 US 75 (2005); Anglo-Norwegian Fisheries Case (‘Fisheries case’) [1951] ICJ Reports, 116; Direct US Cable Co v. Anglo-American Telegraph Co. Ltd. (1877) 2 AC 394; Tunisia/Libya Continental Shelf case [1982] ICJ Reports, 18; Church v. Hubbart 2 Cranch 187; Civil Aeronautics Board v. Island Airlines (US Dist. Ct., Hawaii), 235 F. Supp. 990 (1964); —— (US Court of Appeals, 9th Circuit) 352 F. 2nd, 735 (1965); Land, Island and Frontier case (the El Salvador/Honduras case) [1990] ICJ Rep. 94; Mahler v. Transportation Co. (1866) 35 N.Y. 352; Manchester v. Massachusetts 139 US 240 (1891); Mississippi v. Louisiana 202 US 1; North Atlantic Fisheries Arbitration (1910) S. Doc. No. 370, 61st Cong., 3d Sess., vol. 1, Award of the Tribunal; Ocean Industries v. Greene (1926) 15 F. (2d) 862; Organised Village of Kake v. Egan 369 US 60 (1962); Raptis v. State of South Australia (High Court, June 27, 1977): I.L.R., p. 32; Stetson v. US (The Alleganean) No. 3993, Class 1, Second Ct of Cmrs of Alabama Claims, IV Moore’s Arbitrations, 4332; The People v. Stralla (1939) 96 Pac. (2nd) 941; 14 Cal. 2d 617; Tunisia/Libya Continental Shelf case [1982] ICJ Reports, 18;

Bibliography

309

US v. Alaska, 422 US 184 (1975); US v. Florida, 420 US 531 (1975); US v. Louisiana, 394 US 11 (1969); ——, 420 US 529 (1975); US v. Louisiana et al., (Alabama and Mississippi Boundary case) 470 US 93 (1985); US v. Maine (Rhode Island, New York), 469 US 504 (1985); —— (Massachusetts Boundary case), 475 US 89 (1986); Whitelaw v. US 75 F. 513.

Treaties Convention between the United States of America and His Majesty the Emperor of All the Russias, Relative to Navigating, Fishing Etc in the Pacic Ocean (concluded April 17, 1824; ratications exchanged January 11, 1825); Similar treaty between Great Britain and Russia (1825); US/Russia Treaty of Navigation and Commerce, December 18, 1832 (ratications exchanged May 11, 1833): Treaty Series No. 299; Treaty of Commerce and Navigation between Great Britain and Russia (signed January 11, 1843) (Consolidated Treaty Series, No. 106); Treaty of Cession between the US and Russia of March 30, 1867.

Index A ABT case (Alaska Boundary Arbitration (1904)) 32, 37, 52, 67, 72–73, 74, 83–92, 93, 95, 97, 105, 108, 118–119, 120, 123, 125, 127, 129–130, 135, 138, 143, 145–146, 148, 153–154, 159–161, 170, 173–175, 178–179, 213–214, 217–219, 222–225, 227, 237, 241–242, 245, 267, 269, 290 Abu Hashaifa Bay (Egypt) 302 Acquiescence (or non-acquiescence) 16, 35, 50–51, 54–55, 62–64, 73, 76–77, 80, 86, 105, 109, 112–115, 124–126, 128, 130–134, 136, 140, 142, 145, 148–149, 156, 158, 160–162, 167, 178–180, 185–186, 190, 213–217, 219–231, 233–245, 249, 253, 256, 260, 279, 285–287, 297, 299, 300 Acquired rights 292–293, 296 Alaska 13, 19, 23, 27–28, 30–32, 35, 37, 41–43, 51–53, 62, 71–72, 75–76, 80, 82–86, 88–89, 91, 93, 95–96, 98–100, 106–109, 112, 115–121, 123–125, 127–132, 135–138, 140, 142, 144, 152–155, 159–161, 167–182, 185–188, 193, 195, 197–198, 200–206, 209, 213, 218, 221–222, 224–226, 229–236, 239–242, 245, 250–251, 253, 255–256,

261–268, 272–273, 277–278, 281–282, 285, 288, 290, 299, 301 Alaska Boundary Arbitration (1904), see ABT case Alaska v. US (2005) 9–10, 12–14, 19–21, 26–28, 30, 32, 35–37, 42–43, 51–53, 58–59, 63, 65, 67–69, 74–75, 79–80, 82–83, 85–86, 88–94, 96, 98–99, 106–109, 112, 114–116, 118–121, 123–128, 130–133, 135–138, 140, 142–146, 148, 152–156, 159–161, 170–174, 176–177, 179–180, 182190, 192–195, 197–206, 208, 213, 215–219, 221–227, 234–237, 242, 245, 250–251, 253, 255–257, 259, 262, 264, 268, 272–273, 278, 281–282, 284–285, 287–290, 295, 298 Alabama and Mississippi Boundary case (US v. Louisiana (1985)) 19–20, 22, 34, 37, 61, 63, 106, 112, 119–120, 122–123, 125–126, 128, 142–143, 147, 149, 152–153, 157–158, 166–167, 171–172, 182–183, 193, 214, 216, 219–220, 222, 229, 250, 254–255, 262, 279, 282, 288, 296 Albania (UK v. Albania (1949)), see Corfu Channel case Alexander Archipelago (Alaska) 12–14,

312

Index

19, 26–29, 31–32, 35, 37, 41–43, 52–53, 59, 62–63, 69, 71–73, 80, 82–86, 88–90, 92–99, 106–108, 118–121, 123, 127–133, 135–138, 140–143, 146, 152–156, 161, 170–174, 177–180, 182, 185–190, 192, 194–195, 198, 200–203, 205, 206, 208–209, 213–214, 216219, 222–227, 229–231, 233, 235–237, 241, 244, 250–251, 255, 257, 262–263, 266–268, 272–273, 278, 281–282, 288–290, 299, 301 Alleganean case (Stetson v. US) 16, 34, 124, 221, 227, 248 Amatique, Gulf of, (Guatemala) 104, 303 Ancient rights 61, 65–67, 164, 259–260, 265, 268, 285, 299 Anglo-Norwegian Fisheries case, see Fisheries case Anxious Bay (Australia) 302 Archipelago (coastal) 17, 24–29, 31, 40–41, 52–53, 58–59, 83, 118, 128, 136, 138, 223–224, 226, 241, 251, 272–274, 277, 283–284, 286, 289, 291, 295, 297, 302 Archipelago (oceanic) 23–24, 35, 40, 42–43, 53, 83, 90, 94–95, 133, 191, 232, 261, 269, 274, 277, 292 Archipelagic waters 24, 40, 42, 94, 191, 269, 274, 295 Argentina 252, 264, 301 Australia 6, 11, 13–14, 33, 47, 59, 62, 94, 104–105, 111, 117, 140, 158, 164, 168, 170, 173, 177, 198, 210, 250, 256, 275–276, 289, 295, 298, 302 Azov Sea (Russia) 299, 304 B Bajdaratsk Sea (Russia) 304 Balch, T.W. 75, 187, 196, 241 Baldoni 65 Bankok, Bight of, (Thailand) 303 Barrie, G.N. 164, 242 Barrington Bay (Canada) 293, 302 Baselines (and closing lines) 24–26, 28–29, 36–37, 41–42, 53–54, 56, 59, 64, 72, 82–85, 87–91, 95, 102, 104–105, 107–108, 118–119, 121–122, 128, 131–138, 140, 142, 147–148, 161, 173–4, 191, 201–202, 217–218, 223, 224–226, 229–230, 232–233, 241, 244, 256, 263, 267–268,

272–275, 277–278, 280, 284, 286, 289, 291, 293, 295, 297–298 ‘Bayard letter’ 92, 130–2, 146, 154, 216, 272, 297 Bays (historic) 1–2, 6, 8, 10, 12–13, 15–23, 25–26, 28, 32, 34, 40, 42–43, 50, 54–56, 58–59, 61–62, 65–67, 102, 104–107, 109, 111–112, 117–119, 123, 129, 133, 135, 140, 143–145, 147, 159–160, 164, 166–167, 170, 177, 182, 184, 190–192, 194, 204, 227, 230–233, 236–238, 241–242, 244–245, 247, 248–250, 252–257, 261–262, 264–265, 272–275, 282–284, 286–287, 289–293, 295–298, 301–304 Bays (juridical) 19–21, 39–43, 49–50, 52, 55–58, 61, 64, 87–89, 91, 94–95, 98, 105, 109, 111, 119, 123, 127–128, 131, 133, 135, 140, 142–143, 147, 155–156, 174, 179, 202, 218, 223–225, 230, 248–249, 257, 264, 272–275, 287, 290–293, 295, 298 Bays (pluristate) 23, 35, 40–43, 81, 181, 190–192, 209, 271–272, 297, 299, 300 Bays (vital) see vital interests/bays Behm Canal (Alaska) 88 Behring Sea Arbitration (1893), see Fur Seal Arbitration Block Island Sound (USA) 187 Blue Mud Bay (Australia) 302 Blum, Y. 4, 18, 35, 40, 55, 73–74, 114–115, 133, 151–152, 158, 161, 164, 170, 176–177, 181, 191–192, 195, 197, 219–221, 227–228, 238, 242, 244, 248–249, 252–253, 255–256, 264, 291–292, 296, 298, 300 Boggs, M.S. 28, 58, 83, 105, 121, 130, 136, 203, 205, 208, 225–226, 232, 266–267, 284 Bouchez, L.J. 1, 4, 6, 17–18, 34–35, 61–62, 111, 113–114, 120, 128, 133, 145–148, 151–152, 156–158, 164–165, 175, 192, 195, 213, 216, 238–239, 244, 247–248, 250, 253, 255, 263, 266, 283, 287, 291, 296–297, 302–304 Boundaries (maritime) 6, 45–47, 177, 245, 267 Bourquin, M. 58, 147, 237, 253, 256 Bradeld Canal (Alaska) 91

Index Bristol Bay (Alaska) 13 Broad Sound (Australia) 302 Buckingham Bay (Australia) 302 Bulgaria 302 Burden of proof, see proof Burgas Bay (Bulgaria) 302 Burke, W.L. 10, 16, 57, 112, 114, 123, 126, 128, 143, 182, 248, 253, 256 Bustamente, A.S. 116, 120, 238, 243 Butler, W.E. 29, 242 Buzzards Bay (USA) 304 C CAB v. Island Airlines (1964) 24, 51, 67–68, 112, 133, 139, 155, 165, 167, 207–208, 261, 263, 269, 277, 279 Cancale Bay (France), see Granville Bay Cambodia 162, 302 Canada 23, 28–30, 35, 43, 56, 61, 82, 85, 118, 121, 124, 131, 135, 172–173, 179, 181, 186–187, 189, 194, 196, 202–206, 214, 233, 236, 241–242, 293, 302 Canso Strait (Canada) 29, 31 Carpentaria, Gulf of 276 Ceylon, see Sri Lanka Chaleur Bay (Canada) 8, 293, 294, 302 Charney, J.I. 141 Charts (maps) 118, 121, 124, 133–138, 142, 146–147, 159, 173–174, 180, 215–217, 232, 265–266, 277–280, 281–282 Chedabucto Bay (Canada) 302 Chesapeake Bay (USA) 13, 16, 34, 42, 50–51, 61, 65, 127, 129, 131, 160, 221, 227, 253, 255, 275, 291, 293, 299, 304 Chichag off brig incident (Alaska) 98, 173, 185 China 241 Cheshsk Sea (Russia) 304 Chevigny, H. 72, 74, 96, 177 Chukchi Sea (Russia) 304 Church v. Hubbart (USA) 209 Churchill, R. 55, 194, 244, 271 Civil Aeronautics Board v. Island Airlines (1964), see CAB v. Island Airlines Claim, formal historic 86–87, 90, 92, 104, 109, 111, 113, 117–133, 142–145, 147, 153, 159, 163–165, 173, 234–235, 262, 265, 268, 280, 285–290

313

Clarence Strait (Alaska) 174, 203, 205 Clyde, Firth of, (UK) 304 Cofn Bay (Australia) 302 Colombia 146, 240, 245 Colon Archipelago (Ecuador) 232 Commensurate jurisdiction 36, 41, 114–115, 165, 170, 174–182, 195, 197–198, 207, 236, 273, 279 Conception Bay (Canada) 56, 124, 126, 196, 249, 302 Contiguous zone 174, 176–178, 180–181, 185, 207–208 Continental shelf 45–47, 209–210, 299 Continuity (of historic claim/jurisdiction/ time factor) 111–112, 114, 132, 151–156, 164–166, 171–172, 262, 268, 273, 280, 282, 285–286 Consistency (or inconsistency) of claim 115, 128–133, 136–138, 174, 217 Cook Inlet (Alaska) (see also Cook Inlet case) 13, 82, 96, 112, 145, 152, 165, 167–168, 172, 184, 198–200, 204, 211, 216, 261, 267–268, 277 Cook Inlet case (US v. Alaska (1975)) 73–74, 96, 115–116, 124–125, 129, 145, 148–149, 152, 165, 167–168, 172, 175, 180, 184–187, 195–200, 202, 204, 206–207, 211, 214, 221, 228–229, 231, 261–262, 264, 267–268, 277, 288 Corfu Channel case (UK v. Albania (1949)) 32–33, 87, 193 Corisco Bay (Rio Muni) 303 Costa Rica 245 Critical date 85, 101, 160–161, 165, 234, 277, 287 Cuba 53, 114, 138, 216, 225 D D’Arguin Bank (Mauritania) 106 Delaware Bay (USA) 13, 16, 34, 42, 50–51, 65, 126–127, 129, 131, 208, 221, 227, 238, 248, 253, 255, 265, 275, 291, 293, 304 Defence interests, see self-defence Delimitation of maritime zones, see boundaries (maritime) Denmark 29 De Vissher, C. 234, 239

314

Index

Direct US Cable Co. v. Anglo-American Telegraph Co. (1877) 56–57, 124, 196, 220, 249 Disclaimer (of historic title) 69–70, 167, 219, 233, 271–282, 295, 299 Dissuetude of claim, see disclaimer Dixon Sound/Entrance 23, 28, 30, 118, 187, 202, 233, 236, 241 Dmitry Strait (Russia) 34 Dominican Republic 102, 302 Drago (Dr) 8, 57–58, 247, 253–254, 264, 283 Dryad incident (Alaska) 173, 188–189 E Eastern Greenland case 170 Ecuador 28, 232 Edeson, W.R. 14, 104, 117, 158, 164, 168, 170, 198, 210, 250, 255, 275–276, 298 EEZ (exclusive economic zone) 5, 40, 45, 257, 295–297 Effective exercise/enforcement of jurisdiction 33, 111–115, 122, 133, 139, 145–149, 151–153, 155, 158, 160–161, 163–176, 183, 196, 198, 207, 216, 219, 234–236, 262–263, 282, 285–286, 288, 299 Egmont Bay (Canada) 293–294, 302 Egypt 106, 232, 302 El Arab Gulf (Egypt) 106, 302 El Arish Bay (Egypt) 302 El Salvador 12, 40, 80, 134, 164–165, 176, 230, 242–243, 300 El Salvador/Honduras case (Gulf of Fonseca) (1990) 2, 9, 12–13, 15, 22–23, 35–36, 41–42, 50, 80, 88, 108, 111, 129, 134, 144, 156–157, 164–165, 176, 180–181, 190–192, 208–209, 220, 228, 230, 236, 242–243, 256, 260–261, 263, 265, 272–274, 283–284, 286–287, 289–290, 293, 295–297, 299, 300 Encounter Bay (Australia) 302 Erga omnes rights/effects 5, 55, 84, 92, 95, 105, 242–243, 272, 300 Eritrea/Yemen Arbitration (2001) 4, 46 Escocesa Bay (Dominican Republic) 102, 302 Estoppel 14, 242–243, 260, 279, 300 EU policy on historic claims 28, 35, 230

Evensen, J., see UN ‘Evensen’ Report on the Waters of Archipelagoes Exceptional (historic) claim/title 16, 49–64, 68, 105, 109, 113, 118, 140, 161, 178, 185, 191, 213, 216, 236–237, 239, 242–245, 255, 269, 272–273, 285, 289, 290–291, 298–300 Exmouth Bay/Gulf (Australia) 11, 302 F Fauchille, G.C. 157, 242–243, 247 Federal Republic of Central America, see El Salvador/Honduras Fisheries Arbitration (1910), see North Atlantic Fisheries Arbitration Fisheries case (1951) (UK v. Norway) 2, 8–9, 15–16, 18, 21, 24–25, 28–30, 32–34, 42, 49, 52–58, 61–62, 64–68, 85–86, 101, 105, 114, 119, 123–124, 130, 133–134, 142, 146–148, 157–158, 164, 193, 197, 214, 216–221, 223–227, 229, 232, 234, 237–245, 250, 255, 264, 268, 274, 287, 291–292, 295 Fisheries Jurisdiction cases (Icelandic Fisheries case) 4–5, 242 Fishing rights (historic) 29, 45–47, 195, 205, 242, 300 Fishing practices/incidents relating to historic claims 93–94, 96–98, 108, 113, 115, 117, 121, 124, 133–134, 140, 147, 153–156, 163, 168, 170–174, 176–178, 180–184, 186, 194–207, 217, 221, 231, 235–236, 240, 243, 257, 260, 264, 288, 295, 299–300 Fitzmaurice, G.G. 26, 113, 133, 240 Florida Bay 134, 159, 196 Florida Keys 225 Fonseca, Gulf of, (see also Gulf of Fonseca case (1917)) 3, 12–13, 15, 23, 32, 35, 37, 42, 50–51, 80–81, 88, 129, 134, 144, 158, 164, 180, 190–192, 209, 220, 228, 236, 243, 248, 261, 263, 265, 272–273, 286–287, 293, 297, 299–300, 303 Formosa Bay (Kenya), see Ungwana Bay Foster, J.W. 93, 99, 121, 134, 190, 209 Fortune Bay (Canada) 293, 302 France 126, 147, 210, 215, 231, 234, 238, 260, 262, 287, 302

Index Francioni, F. 113, 166, 184, 232, 244, 252, 254 Freedom of navigation, see innocent passage French Equatorial Africa 303 Fur Seal Arbitration (Behring Sea) (1893) 73–74, 76, 81–82, 100, 199, 218, 262–263, 281 G Gabes, Gulf of 7, 12, 20, 59, 84, 104–105, 109, 115, 134, 156, 182, 195, 207, 210, 215, 217, 220, 227, 234, 236, 242, 260, 275, 299–300, 304 Gabon 252, 303 Gabon (River) 303 Galapagos Islands 28 Germany 130, 134 Geographical factors (relating to historic claims) 132–134, 136, 156, 173–4, 202, 216–217, 248–251, 254–255, 263, 286 Geographical proximity/remoteness (and historic title) 170–171, 240–241, 288 Gidel, G.C. 1, 5, 24, 35, 37, 50, 53, 56, 68, 111, 175, 181, 191, 196, 228, 237, 240, 253, 255 Gioia, A. 28 Goldie, L.F.E. 2, 9, 39, 54, 65, 101, 167, 169, 182, 196, 248, 252, 254, 265, 273–274, 276, 293, 296 Granville Bay (France) 210, 302 Greece 245 Grisbadarna case 177 Gross, A.M. 35 Guatemala 102, 104, 303 Guinea 252 Gulf of Fonseca case (1917) 15, 26, 40–41, 80–81, 88, 129, 144, 158, 176, 181, 190–191, 220, 228, 230, 235, 242–243, 247–249, 255–256, 264, 266, 289, 297 Gulf of Sirte (Sidra), see Sirte (Sidra) Gulf of Taranto, see Taranto Gulf of Thailand 102 Gulf of Tonkin, see Tonkin Gulf of Tunis 105, 304 H Hague Codication Conference (1930) 6, 15, 30–31, 40, 52–53, 61, 67, 73, 129–130,

315

146, 165, 192, 225–226, 230, 248, 285, 287 Hall, W.E. 53, 61, 89 Hawaiian waters 24, 51, 68, 133, 155, 167, 208, 261, 263, 269, 277 Hervey Bay (Australia) 302 Hyde, C.C. 12–13, 34, 54, 81, 249 High seas 64–65, 68, 72, 74, 76, 92, 128, 130, 133, 173, 179, 191, 195, 198–200, 203–204, 206, 232, 239–240, 242, 255, 274, 278, 281, 284, 286, 298, 300 Historic rights 4–6, 23, 129, 242, 299 Historic title/claim 25, 29–30, 33–34, 37, 42, 45, 49, 51, 54–57, 59, 61–62, 64–68, 73, 84, 86, 99, 108–109, 116–118, 121–126, 128–129, 132–134, 136, 138, 140, 142–143, 146–147, 152–153, 156, 158–161, 164–167, 169–171, 173, 175, 180–184, 191–193, 195–198, 204–207, 210–211, 213–217, 230–243, 245, 249–251, 253–256, 259–269, 271–282, 284–301 Historic territorial sea, see territorial sea Holland (Netherlands) 74, 302 Honduras 32, 80–81, 230, 243, 260, 300, 303 Hudson Bay 61, 196, 241, 302 I Icelandic Fisheries case, see Fisheries Jurisdiction cases India 29, 47, 66, 177, 210 Indreleia Passage/Strait (Norway) 29, 31, 33, 193 Innocent passage (and freedom of the seas/ navigation) 13, 28–29, 31–37, 39, 41, 50, 55, 64–68, 71–77, 81, 92–99, 120–121, 132, 144, 153–155, 163, 169–171, 173, 175–179, 181–195, 197, 206–209, 214, 222–223, 229, 232, 239–243, 251, 260, 264, 267, 269, 274–275, 278–279, 284, 286, 288, 291, 299–300 Inside Passage (Alexander Archipelago, Alaska) 186, 194 Internal waters 26, 28, 30–31, 33–37, 39–43, 51–53, 57, 59, 62–66, 74, 83, 85–89, 93–99, 102, 104, 106–108, 117, 119–121, 123, 125–133, 136, 140, 142, 144, 146, 152–155, 158–161, 166–167,

316

Index

170–173, 175–177, 179, 181–184, 189–193, 195–198, 201–202, 204–207, 209–211, 217–218, 222–224, 226, 229–232, 236–237, 240–241, 245, 251–252, 254–255, 261–262, 264, 266–268, 272, 275, 277–279, 281, 284–286, 288–291, 293, 295–299 International Pacic Halibut Convention/ Commission 204–205 Intertemporal problems 64, 109, 115, 140, 164, 180–181, 191, 210, 233–235, 248, 256, 259, 261–262, 268–269, 272, 275, 286, 288, 290–296, 298 Italy 25, 59, 74, 102, 118, 135, 147, 166, 230–232, 234, 245, 260, 275, 293, 297, 303 J Japan 34, 104, 117, 140, 146, 168, 194, 197, 203–204, 235, 237 Jessup, P.C. 12, 18, 26, 49–50, 57–59, 61, 81–82, 93, 119, 124, 156, 158, 164, 177, 181, 196, 208–209, 263, 265 Juridical Regime, see UN Juridical Regime (of Historic Waters) Juan de Fuca, Strait of 30 ‘Juneau Hearings’ 28, 41, 82, 93, 107, 117–118, 124, 148, 152, 172, 174, 186, 195, 208–209, 213, 215, 221, 232, 235, 263, 282 K Kara Sea (Russia) 264, 304 Kenya 102, 160, 252, 303 Killas, M. 28 Knowledge (concerning historic claim) 109, 114, 133, 142, 144–145, 147–149, 158, 213–219, 222, 231, 238–239, 241, 286 Krusov Island (Alaska) 174 L Lacepede Bay (Australia) 302 Laholm Bay (Sweden) 157, 303 Laptev Sea/Strait (Russia) 29, 34, 304 Law of the Sea Convention, see LOSC Leanza, U. 8, 15, 102, 118 Libya 10, 20, 46, 55, 103–104, 109, 115, 120–121, 129, 134, 147, 156, 158, 166, 180, 182, 184, 195–196, 207, 210, 215,

217, 230, 234, 239, 242, 244–245, 252, 260, 297–298, 303 Listing (of historic claims) 10–15, 237; and see Appendix Loango Bay 303 Long Island Sound (USA) 13, 28, 51, 123, 265, 275, 279, 304 Lopphavet Fjord (Norway) 303 Lord Roberts incident (Norway) 124–125, 194 Loriot incident (Alaska) (1836) 98–100, 154–156, 173, 179 LOSC (and UNCLOS III) 5, 9, 17, 19, 21–25, 36, 41–42, 45–46, 55, 64, 119, 140, 146, 181–182, 191, 194, 209, 240, 256–257, 273–274, 284, 286, 291–293, 295–298 Louisiana Boundary case, see US v. Louisiana (1969) Louisiana v. Mississippi (1906) 147 Lopez, Cape, 303 Lowe, A.V. 55, 194, 244, 271 Lynn Canal (Alexander Archipelago) 85, 88, 91, 95 M McDougal, M.S. 10, 16, 57, 112, 114, 123, 126, 128–129, 143, 182, 248, 253 McKernan Memorandum (1972) 172, 174, 180, 205, 231 Magellan Straits 29 Mahler v. Transportation Co. (1866) 265 Malta 230 Manaar, Gulf of 36, 47, 66 Manchester v. Massachusetts (1811) 177, 208, 215, 238 Maps, see charts Marguerite incident (Alexander Archipelago) 154, 202–203, 229, 231, 236 Massachusetts Boundary case, see US v. Maine Mauritania 105 Mexico 72, 166, 221, 260, 265 Minquiers and Ecrehos case (1953) 177 Mira Bay (Canada) 302 Miramichi Bay (Canada) 8, 293–294, 302 Mississippi Sound 19, 22, 37, 61, 63, 66, 106, 119, 123, 125, 128, 143, 158, 171, 182, 193, 221, 229, 251, 254–255, 262

Index Moore, J.B. 95, 239 Mondah Bay 303 Monterey Bay (USA) 13, 123, 304 Moray Firth 304 Moreton Bay (Australia) 11, 302 Muzon, Cape (Alaska) 174 N Nantuket Sound (USA) 67, 159, 166, 173, 265 Navigation, see innocent passage Neiba Bay (Dominican Republic) 302 Ngantcha, F. 194, 208–209 Neighbouring States (and historic title) 118, 124 Netherlands, see Holland Nicaragua 176 Nicaragua v. US (1986) 194 Nixon, D.W. 6, 8, 11, 21, 292, 302–304 North Atlantic Fisheries Arbitration (1910) 8, 15, 21, 51, 56–58, 61, 63, 85–87, 112, 119, 124, 131, 164, 218–219, 226, 249, 253–254, 283, 293, 297 Norway 8, 13, 18, 25, 29, 31, 33–34, 49, 52, 54, 57–58, 64–66, 85–86, 101, 105–106, 119, 123, 133–134, 142, 146–147, 158, 193–194, 197, 214, 217–219, 222, 224–227, 229, 231, 234–235, 237–240, 243–245, 250, 255, 268, 284, 287, 291–292, 302 Notication (declaration/proclamation of historic claim) 105–106, 113, 115, 118, 121, 145–149, 215–217, 221, 231, 234, 278 O Objective historic status, see erga omnes Ocoa Bay (Dominican Republic) 302 O’Connell, D.P., 24, 53–54, 68, 113–114, 121, 152, 163, 177, 243, 298 Oda(Judge) 13, 15, 22, 40, 42, 50, 88, 108, 129, 144, 165, 176, 180, 190, 192, 208, 236, 271, 273–274, 283–284, 286, 290, 295–296, 299 Okhotsk Sea (Russia) 304 Okun, S.B. 71, 74–75, 96, 178, 187 Oppenheim/Lauterpacht 42, 72, 75, 228 Opposability, doctrine of 55, 62, 243–245, 300

317

Organised Village of Kake v. Egan (1962) 123, 201 Ottoman rule (and historic title) 166 Oyster Bay (Australia) 302 P Pallieri, G.B. 65 Palk Bay (Sri Lanka) 14, 29, 47, 66, 303 Palmas Island case 170, 262 Panama 245, 265, 303 Panama, Gulf of 245, 265, 303 Papua New Guinea 47 Pearcy, G.E. (‘Pearcy Charts’) 121, 136–138, 146, 152–153, 159, 173–174, 202 Pelusium Bay (Egypt) 302 Penobscot Bay (USA) 304 Penzhinsk Bay (Russia) 304 Persistent objector, see protest Peter the Great Bay 34, 102, 104, 140–141, 146, 184, 194, 203–204, 221, 231, 237, 240–241, 252, 304 Pharand, D. 8, 15, 39, 102, 118, 120, 145, 239 Phillipines 274, 292, 303 Pillai v. Muthupayal (1903) 29, 177, 210 Pineschi, L. 297 Placentia Bay (Canada) 302 Plate, River 264, 301 Pointe Noire 303 Porcupine River (Canada) 189 Portland Canal (Alaska) 83, 267 Portugal 248, 303 Prescott, J.R.V. 34, 233 Prescription/prescriptive rights 5, 29, 51, 54–55, 65–66, 119, 133, 152, 156, 197, 261, 297 Proof of historic title (burden of) 50, 67–70, 134, 145, 165, 233, 245, 278–279, 287, 289–290, 297 Protest (objection) to historic title 28, 34–35, 53, 62, 72–74, 81–82, 104–105, 109, 113, -115, 117–118, 124, 140, 143, 145–149, 162–163, 167, 178, 180, 189, 194–197, 203–204, 214–215, 219–221, 228–244, 252, 260, 267–268, 279, 285, 287, 295, 299 Publicists/authors (and proof of historic title) 10–12, 286, 289

318

Index

Publicity/publication of historic claim 105, 113, 115, 119–120, 124, 133, 135, 139–149, 213, 219, 222, 234, 280, 285, 288 Q Qatar/Bahrain case (2001) 5, 6, 46 Queen Charlotte Sound (Canada) 233 Quoad hunc title (see also opposability) 242–243, 245, 300

5,

R Raestad (Norwegian jurist) 240 Randolf (US Attorney General) 16, 34, 51, 127, 208, 221 Raptis v. State of South Australia (1977) 33, 59, 94, 170, 250, 289 Recognition/non-recognition of historic claim 24–25, 46, 80, 115, 126, 128–129, 140, 144, 161–162, 171, 199, 203, 217–218, 221–222, 224, 227, 231–233, 236–240, 242–245, 255, 267, 300 Reed, M.W. 2, 19, 63, 65, 106, 112–113, 115, 122, 140, 142, 148, 152, 157–159, 175, 180, 198, 229, 261, 267, 277, 298 Retrospectivity (of historic title) 109, 160, 181, 191, 268, 272, 284, 288, 293 Rhode Island/New York case (US v. Maine) (1983)) 128, 165 Rio de la Plata, see Plate Rivers (of Alaska) 92, 95–96, 98 Rivoli Bay (Australia) 302 Roach, J.A. 13, 28, 35, 105, 140, 162, 231, 245, 256 Roebuck Bay (Australia) 302 Ronzitti, N. 21–22, 25, 59, 101–102, 135, 231, 245, 247, 249, 252, 256, 271, 275, 293 Russia (USSR) 12, 29, 34–35, 52–53, 63, 71–77, 80–86, 93–100, 102, 104, 107, 116, 131, 134–135, 140–141, 146, 153–156, 160, 171, 173, 176–179, 184–190, 193–195, 199–200, 203–204, 208–209, 218, 221–223, 231–233, 235, 237, 239–241, 244, 252, 259, 261–264, 266–269, 304 S Sado Estuary (Portugal) 303 St Ann’s Bay (Canada) 302 St Peter’s Bay (Canada) 302

St Vincent Gulf (Australia) 59, 276, 302 Samana Bay (Dominican Republic) 302 Sannikov Strait (Russia) 29, 34 Santa Monica Bay (USA) 215, 265, 304 Santo Domingo Bay 102, 302 Santa Barbara Channel (California) 32 Scobbie, I. 228, 245 Scovazzi, T. 8, 36, 50, 59, 84, 102, 105–106, 112, 118, 128, 139, 147, 160, 227, 230, 242, 245, 253, 265, 293, 297, 301–304 Sedentary sheries 6, 121, 177, 182, 195, 209–210, 260, 299 Self-defence (and national security) 248–249, 251–252, 254–256, 289, 295 Shalowitz, A.L. 63, 157 Shelikov Strait (Alaska) 117, 146, 197 Shark Bay (Australia) 11, 14, 59, 158, 177, 198, 210, 275, 302 Sirte (Sidra), Gulf of 103–104, 147, 166, 184, 230, 244–245, 252, 298, 303 Skelderviken Bay (Sweden) 303 ‘SLA’, see Submerged Lands Act Smith, R.W. 13, 28, 35, 105, 140, 162, 231, 245, 256 Solum Bay (Egypt) 302 Spain 67, 72, 114, 129, 216, 260, 263–265 Spencer Gulf (Australia) 59, 276, 302 Spinnato, J.M. 4, 147 Sri Lanka (Ceylon) 29, 36, 47, 66, 82, 177, 303 Stalin Bay (Bulgaria) 302 Stanley, K.W. 71, 77, 82, 85, 94, 107, 154, 173, 221, 266 ‘Stanley Memorandum’ (1966), see Stanley, K.W. Stefansson Sound (Alaska) 32 Stetson v. US, see the Alleganean case ‘Stevenson Memorandum’ (1972) 28, 35, 171–172, 180, 186, 193, 195, 200, 233, 256 Stikine River (Alaska) 186, 188–190 Storm Bay (Australia) 302 Straits 25, 28–35, 95, 117, 127, 146, 174, 197, 223–224, 230, 250, 264, 284, 290 Stralla case (People v. Stralla) 88, 123, 125–126, 198, 215, 265 Streaky Bay (Australia) 302 Strohl, M.P. 8, 10, 17, 34, 53, 55–56, 58, 75, 104, 114, 116, 120, 124, 133, 140, 147, 153, 184, 193–194, 237, 241, 243,

Index 248–249, 252–253, 263, 265, 283–5, 299, 302–304 Submerged Lands Act (USA) (‘SLA’) 51–52, 169, 209, 278, 280, 290 Successional historic claim 86, 99, 153, 155–156, 166, 176–177, 199, 208, 222, 254, 259–269, 288 Sweden 158, 177, 218, 285, 303 Symmons, C.R. (Report in Alaska v. US) 91, 130 Syria 245 Swartztrauber, S.A. 51, 75, 126, 209, 273, 293 T Tadjura Gulf 303 Tagus Estuary (Portugal) 303 Taku Inlet (Alaska) 88, 91 Tanaka, Y. 46–47 Taranto, Gulf of 21, 25, 59–60, 101–102, 118, 135, 147, 230–232, 234, 245, 275, 293, 297, 303 Tarr Inlet (Alaska) 42–43 Territorial Sea and Contiguous Zone Convention (1958) (‘TSC’) and UNCLOS I 9, 17–22, 25–26, 29, 37, 39, 41–43, 45, 51, 54, 59, 64, 107, 112, 118–119, 122, 127, 133, 136, 138, 160, 167, 169, 191–193, 231, 253, 256, 273–275, 277, 281, 284, 286, 289, 291–293, 295, 298 Territorial sea/waters (juridical or historic) 25, 32–33, 36–37, 40, 64, 66, 76, 82–84, 95–96, 129–132, 134–135, 138, 155–156, 173–181, 184, 188–199, 201–211, 217, 223, 225–226, 228, 230, 232, 236, 240, 243, 251, 263–264, 267, 271, 274, 281, 284, 286, 295–296, 299 Thailand 102, 303 Thailand, Gulf of 162, 303 Time factor (historicity) 114–115, 118, 129, 151–152, 156–162, 220, 234, 245, 247–250, 252–254, 262, 265–266, 285, 287, 297, 299 Tongas Strait (Alaska) 98 Tonkin, Gulf of 102, 304 Treves,T. 297 Tunis, Gulf of, see Gulf of Tunis Tunisia 12, 45, 47, 55, 66, 84, 104–105, 109, 115–116, 120–121, 129, 134, 158,

319

161, 180, 182, 184, 195–196, 207, 210, 215, 217, 220, 228, 230–231, 234–235, 239, 242, 244, 260, 274–275, 296, 299, 300, 304 Tunisia/Libya case (1982) 4, 6, 9, 11–12, 17, 20–23, 45, 55, 64, 66, 104, 109, 115, 120–121, 129, 134, 156–158, 161, 180, 182, 184, 195–196, 207, 210, 215, 217, 220, 227, 230–231, 234–236, 238–239, 242, 244, 260, 292–293, 296–297, 300, 302 U UK (British) policy on historic claims 15–16, 21, 25, 28–31, 33, 49, 54, 57–58, 61, 63, 66, 68, 73, 81–82, 85–92, 94–95, 97, 105, 119, 123–124, 126, 133–135, 142, 146–148, 155–158, 164, 177–179, 185, 187–190, 196, 199, 203, 208–209, 213, 215, 217–226, 229, 231, 234–236, 238–239, 241–245, 249–250, 262–268, 281, 287, 290 Ukase (Russian decree of 1821) 53, 61, 71–77, 83, 96, 99, 176, 178–9, 185, 187, 241, 263–264, 267–268, 298–299 UNCLOS I, see Territorial Sea and Contiguous Zone Convention UNCLOS III, see LOSC UN Convention on Fishing and Conservation of the Living Resources of the High Seas (1968) 204 UN ‘Evensen’ Report on the Waters of Archipelagoes (1957) 23–24, 32 UN Juridical Regime (of Historic Waters) (1962)) 2, 8, 10, 21, 25, 28, 36, 43, 50, 55, 64–65, 68, 111–115, 120, 123, 139, 151, 157–158, 160–161, 163, 165, 171, 175, 182, 184, 205, 214, 217, 227, 229, 233–235, 237, 240, 245, 250, 252–254, 286–287, 301 UN Memorandum on Historic Bays (1957) 11, 13–14, 18, 157, 236, 285, 301–303 Ungwana Bay (Kenya) 102, 160, 252, 293, 303 Upstart Bay (Australia) 302 US v. Alaska (1975), see Cook Inlet case US v. Alaska (1996) 30–32, 52–52, 69, 84, 112, 123, 125, 129–131, 133, 136, 138, 143, 148, 153, 165, 185–186, 202, 204, 208, 216, 223–225, 233, 278

320

Index

US v. Florida 112, 134, 139, 159, 181, 196, 198, 210, 225, 277–278 US v. California (1964/65) 2, 4, 22, 24, 30, 53, 58, 62–63, 67, 69, 72, 87–88, 115, 119–120, 122–123, 125–128, 135, 142, 144, 156, 159, 164–166, 168–169, 179–180, 196, 198, 207, 211, 215, 220–221, 232, 249, 254, 260, 263, 265, 276, 279, 282, 285 US v. Louisiana (1969) 4, 18, 59, 69, 112, 122, 138, 167–169, 187, 192, 221, 228, 277, 280–282 US v. Louisiana (1974) 166–167, 175, 196, 198, 202, 210–211, 219–221, 279 US v. Louisiana (1985), see Alabama and Mississippi Boundary case US v. Maine (see also Rhode Island/New York case) 22, 34, 51, 63, 66–67, 69, 113, 128, 152, 159, 165–166, 173, 187, 193, 208, 214–215, 217, 238, 265, 278–280, 293 US practice/ policy on historic claims 12–13, 16, 23, 28–31, 35, 37, 51–52, 56, 62, 65, 67, 69, 73, 76, 80, 82–83, 85–94, 96–99, 105–109, 111, 114, 116–126, 129–132, 135–136, 138–140, 142, 144–146, 148, 152–156, 159–162, 165–172, 174, 177–181, 185–189, 192, 194, 196, 198–204, 206, 208–209, 213–222, 224–227, 229–234, 236, 238–241, 244–245, 248, 251, 253–257, 260–269, 274–282, 284–285, 288, 290–292, 295, 298–299, 301, 304 USSR, see Russia V Van Diemen Gulf (Australia) 302

11, 276,

Verangerfjord (Norway) 33, 194, 303 Vestfjord (Norway) 33, 64, 231, 303 Vietnam 102, 162, 304 Vineyard Sound (USA) 67, 159, 208, 215, 265 Vital interests/bays 34, 62, 112, 160, 181, 193, 247–257, 284, 287–89, 295–296, 299 Vladivostok Sea (Russia) 304 Volkov, A.A. 194 W Waters (historic) 2, 6, 8, 15–20, 22–23, 25, 29–30, 34, 3640, 43, 47, 50, 55, 58, 61, 63–64, 67–69, 81, 85, 92–94, 102, 105–109, 111–112, 116–119, 121–123, 126–130, 132–134, 143–144, 152, 159–160, 164, 167–172, 174–175, 181–184, 192–193, 195–196, 198, 203, 205, 216, 219–220, 224–225, 228, 231–233, 236–238, 240, 243–244, 247, 249–257, 259, 261, 265, 268, 271–275, 279–280, 282–286, 288–292, 295, 296, 299 Westerman, G. 21, 56, 68, 102 Whaling Arbitration (1902) 76, 281 White Sea (Russia) 102, 244, 252, 304 Y Yukon River (Canada)

189

Z Zimmerman, J.M. 2, 51, 112, 166–167, 193, 253–254, 296, 297 Zyder Zee 18, 302

Publications on Ocean Development 62. Maria Gavouneli: Functional Jurisdiction in the Law of the Sea. 2007 ISBN 978-90-04-16345-4 61. Clive R. Symmons: Historic Waters in the Law of the Sea. A Modern Re-Appraisal. 2008 ISBN 978-90-04-16350-8 60. Howard S. Schiffmann: Marine Conservation Agreements. The Law and Policy of Reservations and Vetoes. 2008 ISBN 978-90-04-16385-0 59. David Anderson: Modern Law of the Sea. Selected Essays. 2008 ISBN 978-90-04-15891-7 58. Veronica Frank: The European Community and Marine Environmental Protection in the International Law of the Sea. Implementing Global Obligations at the Regional Level. 2007 ISBN 978-90-04-15695-1 57. David D. Caron and Harry N. Scheiber (eds.): The Oceans and the Nuclear Age, Legacies and Risks. 2007 ISBN 978-90-04-15675-3 56. David Kenneth Leary: International Law and the Genetic Resources of the Deep Sea. 2006 ISBN 978-90-04-15500-8 55. Sarah Dromgoole (ed.): The Protection of the Underwater Cultural Heritage. National Perspectives in Light of the UNESCO Convention 2001. 2006 ISBN 978-90-04-15273-1 54. Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (eds.): Unresolved Issues and New Challenges to the Law of the Sea. Time Before and Time After. 2006 ISBN 90-04-15191-5 53. Rainer Lagoni and Daniel Vignes (eds.): Maritime Delimitation. 2006 ISBN 90-04-15033-1 52. Tore Henriksen, Geir Hønneland and Are Sydnes: Law and Politics in Ocean Governance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes. 2006 ISBN 90-04-14968-6 51. Aldo Chircop and Olof Linden (eds.): Places of Refuge for Ships. Emerging Environmental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X 50. Guifang Xue: China and International Fisheries Law and Policy. 2005 ISBN 90-04-14814-0 49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status of Research Vessels an Other Platforms in International Law. 2005 ISBN 90-04-14521-4 48. Zou Keyuan: China’s Marine Legal System and the Law of the Sea. 2005 ISBN 90-04-14423-4 47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters. 2004 ISBN 90-04-14088-3

Publications on Ocean Development 46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004 ISBN 90-04-13889-7 45. Budislav Vukas: The Law of the Sea. 2004

ISBN 90-04-13863-3

44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st Century. 2004 ISBN 90-04-13852-8 43. Geir Hønneland: Russian Fisheries Management. The Precautionary Approach in Theory and Practice. 2004 ISBN 90-04-13618-5 42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7 41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. 2003 ISBN 90-411-2203-6 40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia. 2003 ISBN 90-04-13669-X 39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. 2002 ISBN 90-411-2015-7 38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les délimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et commentaires. 2002 ISBN 90-411-1976-0 37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6 36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance for Northeast Asia. 2001 ISBN 90-411-1580-3 35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New Law of the Sea. 2000 ISBN 90-411-1499-8 34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges. 2000 ISBN 90-411-1401-7 33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. 1997 ISBN 90-411-0504-2 32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis of Vietnamese Behavior within the Emerging International Oceans Regime. 1997 ISBN 90-411-0473-9 31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the South China Sea. 1997 ISBN 90-411-0411-9 30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to the Presential Sea. 1997 ISBN 90-411-0365-1