Mexico and the Law of the Sea (Publications on Ocean Development)

Mexico and the Law of the Sea

Publications on Ocean Development Volume 69 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development

General Editors: Vaughan Lowe and Robin Churchill

The titles published in this series are listed at brill.nl/pood.

Mexico and the Law of the Sea Contributions and Compromises

By

Jorge A. Vargas

LEIDEN • BOSTON 2011

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Vargas, Jorge A. Mexico and the law of the sea : contributions and compromises / by Jorge A. Vargas. p. cm. — (Publications on ocean development ; v. 69) Includes bibliographical references and index. ISBN 978-90-04-20620-5 (hardback : alk. paper) 1. Law of the sea—Mexico. 2. Territorial waters—Mexico. 3. Economic zones (Law of the sea)—Mexico. I. Title. II. Series. KZA1146.M6V37 2011 341.4’50972—dc23 2011021164

ISSN: 0924-1922 ISBN: 978 90 04 20620 5 Copyright 2011 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. 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 Koninklijke Brill NV 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.

With all my love to Lynda Grace, and to our children Catherine, Elisabeth and Jorge Alejandro In memory of Dr. Arvid Pardo and Dr. Elisabeth Mann Borghese

Contents Foreword ................................................................................................ Preface ................................................................................................... Acknowledgements ................................................................................. Chapter One Mexico and Its Territory: Constitutional Principles and Foundations .................................................................................... 1. Introduction .................................................................................. 2. Mexico’s Constitutional Provisions ............................................... A. Article 27 of the Political Constitution of 1917 ..................... B. Article 42 of the Political Constitution ................................... C. Article 48 of the Political Constitution ................................... 3. Mexico’s National Territory ......................................................... A. Opinions of Mexican Doctrinarians ........................................ B. The Notion of Territory in Mexico’s Domestic Legislation .... 1. The General Act of National Assets ................................... 2. Mexico’s Territory and the Supreme Court of Mexico ...... C. Article 27, Paragraph One ...................................................... 1. Historical Background ........................................................ 2. Legal Interpretation ............................................................ D. Article 27, Paragraphs Four through Seven ............................ E. Article 42 and the Component Parts of the Territory ............ F. Article 48 and Mexico’s Islands ............................................... G. Marine Affairs under Mexico’s Federal Public Administration ........................................................................ 4. Conclusions .................................................................................. 5. Appendix One .............................................................................. Document 1.1 ......................................................................... Articles 27, 42 and 48 of Mexico’s Political Constitution of 1917 Chapter Two Mexican Marine Zones: Their Legal Regime under the Federal Oceans Act of 1986 ............................................................ 1. Legal Historical Background ......................................................... 2. Mexico’s Federal Oceans Act of 1986 .......................................... A. Rationale of the Federal Executive Power ............................... 1. The Conversion of International Law into Domestic Law .....................................................................................

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2. Ratification by Mexico of the 1982 United Nations Convention on the Law of the Sea .................................... 3. The FOA and the Opinion of the Foreign Affairs Secretary ............................................................................. B. General Overview of the Federal Oceans Act ......................... 1. To Codify, Update and Systematize ................................... 2. To Comply with the 1982 LOS Convention .................... C. The FOA’s Innovative Features ............................................... D. FOA’s Ambit of Application .................................................. 1. General Provisions .............................................................. 2. Maritime Installations ........................................................ 3. Resources and Economic Utilization of the Sea ................. 4. Protection and Preservation of the Marine Environment and Marine Scientific Research Principles .......................... 3. Mexico’s Marine Zones ................................................................ A. Internal Waters ........................................................................ 1. Application of the Straight Baseline System to the Gulf of California ............................................................................ a. Diplomatic Protest by the United States in 1969 ......... B. The Territorial Sea ................................................................... C. The Contiguous Zone ............................................................. D. The Exclusive Economic Zone ................................................ E. The Continental Shelf ............................................................. 4. Conclusions .................................................................................. 5. Appendix Two .............................................................................. Document 2.1 ......................................................................... Federal Oceans Act (Diario Oficial de la Federación of January 8, 1986) Document 2.2 ......................................................................... Delineation of the Provisional Maritime Boundary between the Exclusive Fishery Zones of the United States and Mexico in the Pacific Ocean, International Boundary and Water Commission (IBWC), December 30, 1967 Document 2.3 ......................................................................... International Maritime Boundary in the Gulf of Mexico, International Boundary and Water Commission (IBWC), December 12, 1970 Document 2.4 ......................................................................... International Maritime Boundary in the Pacific Ocean, International Boundary and Water Commission (IBWC), December 12, 1970

55 59 61 61 63 64 68 68 70 71 71 72 72 74 79 86 92 93 95 101 103 103

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Document 2.5 ......................................................................... Mexico: Straight Baselines, 1968 Document 2.6 ......................................................................... Straight Baselines Delimiting Mexico’s Territorial Sea in the Interior of the Gulf of California, Pursuant to Diario Oficial of August 29, 1986, and Fé de Erratas (Corrigendum) of Diario Oficial of October 5, 1968

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Chapter Three Genesis and Development of the Exclusive Economic Zone in Latin America .......................................................................... 1. Introduction .................................................................................. 2. Genesis and Development in Latin America ................................ A. Latin American Diplomatic Conferences ................................ 1. The Santiago Declaration of 1952 ...................................... A. Preamble and Maritime Policies .................................... B. Plurality of Legal Regimes Leads to Regional Conferences ................................................................... 2. The Montevideo Declaration on the Law of the Sea of 1970 ................................................................................... A. Basic Principles of the Law of the Sea .......................... 3. The Lima Declaration of Latin American States on the Law of the Sea of 1970 ...................................................... A. Rationales ...................................................................... B. Common Principles of the Law of the Sea ................... C. Resolutions .................................................................... 4. The Declaration of Santo Domingo of 1972 ..................... A. Legal Content and Analysis ........................................... a. Territorial Sea ........................................................... b. Continental Shelf ..................................................... c. International Seabed ................................................. d. High Seas ................................................................. e. Marine Pollution ...................................................... f. Regional Cooperation ............................................... g. Patrimonial Sea ......................................................... h. Origin of the Name “Patrimonial Sea” .................... B. The Inter-American Juridical Committee ................................ 1. The Report of Vargas Carreño in 1971 .............................. 2. The Committee’s Resolution of 1973 ................................ 3. The Transformation of the Patrimonial Sea into the Exclusive Economic Zone ............................................................................ A. The Colombo Meeting of January 18–27, 1971 .....................

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B. The Yaoundé Seminar of June 20–30, 1972 ........................... C. Kenya Draft on the Exclusive Economic Zone of August 7, 1972 ........................................................................................ D. Declaration of the Organization of African Unity (OAU) on the Issues of the Law of the Sea, Addis Ababa, Ethiopia, May 17–24, 1973 ................................................................... 4. Conclusions .................................................................................. 5. Appendix Three ............................................................................ Document 3.1 ......................................................................... Declaration of the Maritime Zone, Adopted August 18, 1952 Document 3.2 ......................................................................... Montevideo Declaration on the Law of the Sea, Adopted May 8, 1970 Document 3.3 ......................................................................... Declaration of the Latin American States on the Law of the Sea, Adopted August 8, 1970 Document 3.4 ......................................................................... Declaration of Santo Domingo, Adopted June 9, 1972 Document 3.5 ......................................................................... Colombia, Mexico and Venezuela: Draft Articles of Treaty Territorial Sea, April 2, 1973 Document 3.6 ......................................................................... Principles of Mexico on the Juridical Regime of the Sea, Mexico City, February 3, 1956 Document 3.7 ......................................................................... Evolution of Law of the Sea Concepts Leading Up to the 1982 UN Convention Chapter Four Mexico’s Exclusive Economic Zone. Its Establishment, Negotiation and Delimitation with Neighboring States ........................ 1. Introduction .................................................................................. 2. The Exclusive Economic Zone in Mexico’s Domestic Legal Arena ............................................................................................ A. The EEZ and Mexico’s Federal Constitution .......................... 1. Addition of an Eighth Paragraph to Article 27 of the Constitution ....................................................................... 2. The Reglamentary Act on the Exclusive Economic Zone of February 13, 1976 .............................................................. 3. Decree Establishing the Outer Boundaries of the EZZ of June 7, 1976 ......................................................................

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4. Mexico’s Exclusive Economic Zone and International Law ..................................................................................... B. Delimitation of the Exclusive Economic Zone ....................... 1. Maritime Delimitation and International Law ................... 2. Mexico Closely Adhered to the Informal Single Negotiating Text (ISNT) in Establishing Its 200-Nautical Mile Exclusive Economic Zone .......................................... 3. The Use of Islands to Delimit Mexico’s Exclusive Economic Zone .................................................................. a. Mexican Islands in the Gulf of Mexico ......................... b. Mexican Islands in the Pacific Ocean and the Caribbean Sea ................................................................ c. Maritime Delimitation Negotiations with the United States ................................................................. 4. The Exclusive Economic Zone and Its Impact on the Gulf of California ....................................................................... a. The “Mexicanization” of the Gulf of California ............ 3. Maritime Delimitation with Other Countries .............................. A. Maritime Boundary Delimitation Treaties and Agreements with Neighboring States .......................................................... 1. Cuba and the Exchange of Notes of 1976 ......................... 2. Maritime Delimitation Treaty with Honduras of 2005 ..... 3. Pending Maritime Delimitation with Guatemala ............... a. Agreement for the Surveillance of the Border Maritime Zones in the Pacific Ocean of August 17, 1989 ........... 4. No Maritime Delimitation Agreement with Belize ............ a. Modus Vivendi on Right of Innocent Passage by Warships of Mexico and Belize of 1990 ....................... b. Binational Commission of Boundaries and Border Cooperation of 1991 ..................................................... 4. Conclusions .................................................................................. 5. Appendix Four .............................................................................. Document 4.1 ......................................................................... Reglamentary Act of the Eighth Paragraph of Article 27 of the Political Constitution Regarding the Exclusive Economic Zone Document 4.2 ......................................................................... Decree Establishing the Outer Boundary of Mexico’s Exclusive Economic Zone, Published in the Diario Oficial of June 7, 1976

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217 223 224 226 227 233 233 236 236 236 237 238 238 240 240 241 241 244 244

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Document 4.3 ......................................................................... Mexico’s Outer Boundary of its Exclusive Economic Zone Document 4.4 ......................................................................... Limits in the Seas No.104, Maritime Boundary: Mexico – Cuba, September 10, 1985 Document 4.5 ......................................................................... Limits in the Seas No.45, Maritime Boundary: Mexico – United States, April 11, 1972 Document 4.6 ......................................................................... Treaty on Maritime Boundaries between the United States of America and the United Mexican States Done at Mexico City, May 4, 1976 Document 4.7 ......................................................................... Maritime Delimitation Treaty between the Government of the United Mexican States and the Republic of Honduras done at Tegucigalpa, Honduras, on April 18, 2005 Document 4.8 ......................................................................... Agreement between Mexico and Guatemala for the Surveillance of the Border Maritime Zones in the Pacific Ocean, both in the Territorial Sea and in the Exclusive Economic Zone, effected by an Exchange of Notes signed at Tapachula, Chiapas (Mexico), August 17, 1989 Document 4.9 ......................................................................... Limits in the Seas No.4, Straight Baselines: Mexico, August 30, 1968 Document 4.10 ....................................................................... Corrigendum to the “Decree That Delimits the Mexican Territorial Sea in the Interior of the Gulf of California” (that was published in the Diario Oficial of August 30, 1968), published in the Diario Oficial of October 5, 1968 Document 4.11 ....................................................................... Memorandum of Understanding (Modus Vivendi) between Mexico and Belize on the Matter of Innocent Passage of Ships of the Mexican Navy through the Territorial Sea, Effected through an Exchange of Notes in Mexico City, April 26, 1990 Document 4.12 ....................................................................... Evolution Table of Exclusive Economic Zone (EEZ)

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Chapter Five Marine Scientific Research in Mexico: Its Legal Regime under Mexican Law and International Law ............... 1. Introduction .................................................................................. A. Historical Significance of Marine Scientific Research .............. B. Marine Scientific Research and the 1958 Legal Regime ......... C. The Emergence of the 1958 Legal Regime to Control MSR ... 1. Convention on the High Seas ............................................ 2. Convention on the Territorial Sea and the Contiguous Zone ................................................................................... 3. Convention on the Continental Shelf ................................ 4. Convention on Fishing and Conservation of the Living Resources of the High Seas ................................................ 2. Marine Scientific Research and Freedom of the Seas Doctrine ........................................................................................ 3. An Historical Overview: Explorations for Wealth, for Souls and for Knowledge .............................................................................. A. Explorations for Wealth .......................................................... 1. The Era of “Imaginary Geography” .................................... B. Explorations for Souls ............................................................. 1. Religious Indoctrination: The Franciscans, the Dominics and the Agustineans ........................................................... C. Explorations for Knowledge .................................................... 1. Nautical Charts and Maps ................................................. 2. Spanish Expeditions in the Pacific Ocean and the New Spain .......................................................................... D. Early British and U.S. Scientific Explorations Offshore Mexico .................................................................................... 1. Early British Explorations ................................................... 2. United States Explorations in the 1870’s and 1880’s and in the Early 1920’s ............................................................. 4. Mexico’s Administrative Regulatory System Regarding Marine Scientific Research Clearances for Foreign Vessels ........................................................................................... A. Historical Narrative of the Conduct of Marine Scientific Research by Foreign Vessels Offshore Mexico ........................ B. Multiple Federal Agencies and Statutes Involved in the Conduct of Marine Scientific Research by Foreign Countries Agencies 1. Interior Department ........................................................... 2. Foreign Affairs ....................................................................

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3. Mexico’s Navy .................................................................... a. Semar and CONACIO .................................................. 4. Environment ....................................................................... 5. Public Education ................................................................ 6. Communications and Transport ........................................ Legislative Enactments ............................................................. 5. Legal Regime Pursuant to the 1986 Federal Oceans Act ............. A. Marine Scientific Research in the Federal Oceans Act of 1986 ........................................................................................ B. Foreign Marine Scientific Research in Each of Mexico’s Marine Zones .......................................................................... 1. MSR in the Internal Waters ............................................... 2. MSR in the Territorial Sea ................................................. 3. MSR in the Exclusive Economic Zone and the Continental Shelf ............................................................... a. A Dual Regime for Foreign MSR .................................. i. Sovereign Consent Regime ........................................ ii. Conventional Consent Regime ................................. 4. MSR Principles and Mexican Participation ........................ C. Conduct of MSR under the 1982 U.N. Convention on the Law of the Sea and International Law .................................... D. MSR Relations between Mexico and the United States ......... E. The United States of America and MSR ................................. F. The United States Identifies Some Data Collection Activities That Are Not Marine Scientific Research ................................ 1. Prospecting and Exploration of Natural Resources ............ 2. Hydrographic Surveys (for Enhancing the Safety of Navigation) ......................................................................... 3. Military Activities Including Military Surveys .................... 4. Environmental Monitoring and Assessment of Marine Pollution Pursuant to Section 4 of Part XII of the Convention ......................................................................... 5. The Collection of Marine Meteorological Data and Other Routine Ocean Observations .............................................. 6. Activities Related to Submerged Wrecks or Objects of an Archeological or Historical Nature ..................................... G. Clearances Granted to United States Vessels for MSR Projects in Mexico .................................................................. 6. Conclusions .................................................................................. 7. Appendix Five ............................................................................... Document 5.1 ......................................................................... Conduction Scientific Research in Mexico

320 321 323 324 324 325 326 332 335 335 337 338 341 341 341 342 342 344 346 351 355 356 357

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Document 5.2 ......................................................................... Department of State Notice to Research Vessel Operators No. 98 Document 5.3 ......................................................................... Chart (a): Approval Process of Foreign MSR Projects, 1980–1990 ...................................................................... Chart (b): Geographical Area of Foreign MSR Projects, 1980–1998 ...................................................................... Chart (c): Focus Area of U.S. MSR Investigations, January 1984 to September 1998 .................................... Chart (d): Total Foreign MSR Projects, 1980–1998 .......... Document 5.4 ......................................................................... Scientific Areas in MSR Projects, 1976–1993 Document 5.5 ......................................................................... Consolidation of U.S. MSR Areas Offshore Mexico, 1994–2009 Document 5.6 ......................................................................... U.S. Vessels That Conducted Research Offshore Mexico, 2000–2009

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Chapter Six Mexico’s Islands: Mirage or Reality? ................................. 1. Introduction: Discovery of Mexico and Its Islands by Spain in the 16th Century ........................................................... 2. The Bull Inter Caetera and the Principle of Uti Possidetis and Mexico .............................................................. A. The Bull Inter Caetera of 1493 ................................................ B. The Principle of Uti Possidetis ................................................. 1. Article 1 of the Constitutional Act of the Mexican Federation of 1824 ............................................................. 2. Article 2 of the Federal Constitution of 1824 .................... 3. Treaty of Peace and Friendship between Mexico and Spain of 1836 ..................................................................... C. Articles 42 and 48 of Mexico’s Federal Constitution of 1917 with Regard to Mexico’s Territory and Its Islands ................. 1. Article 42 ............................................................................ 3. Legal Problems Derived from Article 48 of the Constitution .................................................................................. A. During the Constitutional Assembly of 1916–1917 ............... 1. Ambiguity in the Language of Article 48 ........................... 2. First Amendment to Article 48 of the Political Constitution in 1960 .........................................................

378 378 379 380 381 382 383

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B. As Reflected in the Language of the State Constitutions ........ 1. Baja California .................................................................... 2. Baja California Sur ............................................................. 3. Campeche ........................................................................... 4. Sonora ................................................................................ 5. Quintana Roo .................................................................... 6. Nayarit ............................................................................... C. A Novel Approach to Mexico’s Adjacent Islands of Certain States ....................................................................................... D. A Failed Attempt to “Federalize” Mexico’s Insular Territory ... 4. Definition and Categorization of Mexican Islands according to Their Legal Situation ................................................ A. Islands and the 1982 U.N. Convention on the Law of the Sea 1. Article 121: Regime of Islands ........................................... 2. Cays, Reefs and Rocks in the Gulf of Mexico ................... B. Islands under Mexican Law ..................................................... 1. Islands and the Federal Oceans Act of 1986 ...................... 2. Isla Clarión and Mexico’s Exclusive Economic Zone ......... 3. Islands under Other Federal Legislation ............................. a. The Federal Public Administration Act ......................... b. The General Act of National Assets ............................... c. The Federal Civil Code ................................................. 4. Islands under State Legislation ........................................... C. Categorization of Mexican Islands .......................................... 1. Islands under the Direct Control of the Federal Government ........................................................................ 2. Islands Destined to a Specific Federal End ......................... a. Isla Santa Margarita and Isla Roqueta ........................... b. Islas Marías .................................................................... 3. Islands under the Jurisdiction of the States ........................ 4. Islands under an Environmental Program .......................... 5. Private Islands .................................................................... 5. Catalogues and Inventories of the Mexican Islands ...................... A. Islas Mexicanas by Manuel Muñoz Lumbier in 1946 .............. B. Legal Regime of the Mexican Islands and Their Catalogue (1977, 1979 and 1981) by the Mexican Navy ........................ C. Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory (1981) by Gobernación ............................ D. Other Catalogues by Pesca (1979) and Programación (1981) ..................................................................................... E. The Newest Catalogue of the Insular Territory (2009–2011) ...

433 434 434 435 435 435 435 436 440 442 442 442 444 447 447 448 451 451 452 452 455 456 456 456 456 457 459 459 460 464 465 465 466 467 467

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6. Review of Three Controversies Involving Mexican Islands ........................................................................................... A. Clipperton Island and the Dispute between Mexico and France ...................................................................................... 1. Formal Reservation by France ............................................ 2. The Mexican Reply ............................................................ 3. Arbitral Award by Vittorio Emmanuel III at Rome, Italy, on January 28, 1931 ............................................. 4. Mexico’s Position Today ................................................ B. The California Channel Islands ........................................... 1. An Incorrect Interpretation of Article V of the Guadalupe Hidalgo Treaty of 1848 ............................... 2. Arguments by Esteban Cházari in 1894 ......................... 3. Mexico’s Position Today ................................................ C. The Coronados Islands Offshore Tijuana ............................. D. Closing Remarks on the Islands of Mexico .......................... 7. Conclusions ................................................................................ 8. Appendix Six ............................................................................... Document 6.1 ....................................................................... Arbitral Award Regarding Clipperton Island Document 6.2 ....................................................................... Informal Catalogue of Mexican Islands Document 6.3 ....................................................................... Information Regarding Mexico’s Marine Protected Areas Document 6.4 ....................................................................... Recommendations for the Future

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469 470 471 472 472 474 475 475 476 479 480 482 484 485 485 490 508 513

Bibliographies ........................................................................................ Mexican Law of the Sea .................................................................... Latin American Law of the Sea .........................................................

523 523 529

General Index ........................................................................................ Onomastic Index ...................................................................................

537 543

Foreword This is an exceptionally important book about the law of the sea. The great bulk of scholarship about the law of the sea focuses on the interests and laws of permanent members of the Security Council or major developed states. This book, however, focuses on the interests and laws of Mexico, one of the most influential emerging economy participants in the negotiations leading to the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Further, the book is written by one of the top international scholars on law of the sea who served as one of Mexico’s principal negotiators throughout UNCLOS and subsequently for three years as the Legal Adviser to the chairmanof the Intergovernmental Oceanographic Commission (IOC).* Jorge A. Vargas was Mexico’s Representative to the Third Committee of UNCLOS which dealt with marine scientific research, the marine environment and technology transfer. In that capacity he made a great contribution to the success of UNCLOS and, of course, he also became one of the most knowledgeable experts in the world on these subjects. Indeed, the delegation of Mexico to UNCLOS, headed by Ambassador JorgeCastañeda, was one of the most highly respected and influential delegations in the negotiation. This book then, both in its understanding of UNCLOS and of Mexican perspectives on law of the sea, is highly authoritative. The 1982 Convention on the Law of the Sea is one of the most remarkable international accomplishments in history. It successfully obtained broad international agreement on a basic constitution for the oceans – quite literally governing an area over two-thirds of planet earth – dealing with the full range of crucial ocean issues, and overcoming four centuries of uncertainty and inability to reach agreement. Today the Convention is in force for 160 nations, as well as – for fisheries matters – the European Union. Crucial to the success of the Convention in providing a stable oceans law for development and conflict avoidance is compliance by nation states. In this respect, it is particularly important that all countries structure their oceans law to be in compliance with the Convention. The experience and leadership of Mexico in this connection is of great significance for other nations, particularly developing nations which * Among his many accomplishments, Professor Vargas is a summa cum laude graduate of the National Autonomous University of Mexico (UNAM) where he later taught; an Adlai E. Stevenson Fellow of the U.N. Institute for Training and Research (UNITAR); he headed the Law of the Sea Department at CESTEEM, Mexico City; and he was the Deputy-Director of the Mexican Office of International Fisheries Affairs.

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played such a major role in the success of UNCLOS. As such, this volume deserves careful study by every foreign office in the world when addressing oceans law matters. The United States is blessed with its major neighbors, Canada to the North and Mexico to the South. Americans have welcomed the strong democratic transition in Mexico and our shared North American Free Trade Agreement. The two countries have in recent years worked more and more closely together, whether in economic and trade matters, in seeking to control terrorism, or in seeking to control drug related lawlessness. And the Government of Mexico is leading the world in effective training within its educational system as to the importance of the rule of law. It is fitting then that two fellow law of the sea negotiators in UNCLOS were brought together in this superb SJD project of Jorge Vargas at Virginia. It is hoped that this will be one of many future collaborations between law of the sea experts of our two countries. Although serving as the principal adviser on the faculty of the University of Virginia for the SJD of Professor Jorge Vargas which resulted in this important book, I certainly learned as much from Jorge as anything he may have learned from me in this process. That seems likely to be the case for the future in relations between the two great nations of Mexico and the United States. John Norton Moore Charlottesville, Virginia March 2011

Preface My academic and personal interest in the law of the sea was seeded in me in the late 1960’s by two truly leading figures in the field of international law: Dr. Arvid Pardo, then Ambassador of Malta to the United Nations, and Prof. Myres S. McDougal of Yale Law School. On November 1, 1967, Dr. Pardo pronounced his long and now historical speech before the First Commission of the XXII General Assembly of the United Nations. At that time, I had just arrived in New York from Mexico’s Secretaría de Relaciones Exteriores (Secretariat of Foreign Affairs) to begin an Adlai E. Stevenson Fellowship at the United Nations Institute on Training and Research (UNITAR). Dr. Oscar Schachter, UNITAR’s Research Director, had assigned me to cover the activities of the First and the Sixth Commissions of the United Nations General Assembly. Listening to the eloquent and detailed speech pronounced by the Maltese ambassador made a most profound and indelible impression on me. Dr. Pardo described how the major powers were threatening to extend the arms race into the deepest parts of the oceans, and even contemplating to emplace both conventional arms and nuclear weapons on the seabed and ocean floor. Pardo reiterated how imperative it was for the United Nations to put an immediate stop to this potential arms race by negotiating an international treaty. At the same time, he described in vivid detail the existence of important until then unknown deposits of polymetallic nodules lying on the deepest parts of the sea bed and ocean floor well beyond the limits of national jurisdiction. He concluded his speech by proposing that this brand new law of the sea space that he unveiled before the United Nations – the seabed and ocean floor beyond the limits of national jurisdiction – should be utilized exclusively for peaceful purposes, its mineral riches to be used principally for the benefit of poor and developing countries and that the entire seabed area be declared by the United Nations as the “Common heritage of humankind.” The content of this original and powerful speech was to remain embedded in my mind for the rest of my life. After UNITAR, I decided to pursue graduate studies at Yale Law School under the kind supervision of Prof. McDougal, my academic advisor. He introduced me to the legal intricacies of the Law of the Sea Conventions of 1958 and prepared my mind for the diplomatic and legal odyssey that eventually led to the convocation by the United Nations of the Third Conference on the Law of the Sea (UNCLOS III).

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The fact that for many years I was a member of the Mexican delegation to the Law of the Sea Conference, then under the direction of Amb. Jorge Castañeda, Secretary of Foreign Affairs, clearly served to strengthen my professional and academic interest on the law of the sea. Years later, I was also fortunate to serve as Legal Advisor to Dr. Agustin Ayala Castañares, President of the Intergovernmental Oceanographic Commission (IOC) of UNESCO in Paris, France, thus becoming directly involved in the marine programs sponsored by the IOC, in particular the legal regime applicable to marine scientific research. Finally, as part of my teaching activities, I decided to bring to the law school classrooms in Mexico the legal and diplomatic experiences accumulated as a result of my participation in the negotiations at UNCLOS III and to impress upon my students the importance that the law of the sea is to play in Mexico’s development. The law of the sea courses that I taught for many years at the Institute of Marine Sciences and Limnology of Mexico’s National Autonomous University (UNAM) and at the Center for Naval Studies for Officers of the Mexican Navy (CESNAV) prepared me to serve as Director of the Law of the Sea Program at the Center for Economic and Social Studies of the Third World (CEESTEM) under the direction of President Luis Echeverría at San Jerónimo-Lídice in Mexico City. At the same time, the domestic and international experience accumulated at CEESTEM allowed me to continue with my teaching and academic activities starting anew at the University of San Diego School of Law (USD) in 1983 where I have enjoyed teaching a law of the sea course for almost thirty years. The principal aim of this book is to provide the reader with an overview of Mexico’s direct involvement in the formulation of that public order for the oceans both at the international and domestic levels. Internationally, Mexico became an active participant during the prolonged and complex multilateral negotiations at UNCLOS III in New York, Geneva, and Caracas, that was convoked in 1973 and culminated at Montego Bay, Jamaica, in 1982. As part of this international context, this book discusses also Mexico’s involvement and contributions to the law of the sea at the regional meetings held in Latin America at Montevideo, Lima and Santo Domingo during the early 1970’s. It was at these regional diplomatic gatherings where the legal antecedent of the current exclusive economic zone was created and given legal shape under the original name of the Patrimonial Sea. This book also examines the bilateral maritime agreements entered into by Mexico with the United States of America, Cuba, Honduras, Guatemala and Belize. At the domestic level, this work introduces the reader to the intricacies of Mexican constitutional law while discussing the legal nature of Mexico’s marine zones pursuant to its Federal Constitution of 1917. The Federal Oceans Act of 1986 (FOA) is the first and most comprehensive legislative enactment ever formulated in Mexico’s legislative history on law of the sea matters. This federal

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statute establishes the legal regime that governs each of the surrounding marine zones subject to Mexico’s sovereign control or to its jurisdiction, namely: the internal waters, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf. From a substantive viewpoint, the FOA closely parallels the corresponding articles of the 1982 Law of the Sea Convention although FOA’s regulations (Reglamento), essential to interpreting several of its technical provisions, have not yet been published for unknown reasons. Finally, this book discusses the intriguing issues raised by two diverse but delicate law of the sea topics: first, the conduct of marine scientific research by foreign vessels offshore Mexico and the legal regime applicable to these activities; and second, the fact that Mexico continues to be remiss in publishing a legal enactment (Ley Reglamentaria) required to govern its islands, including its multiple uses and resources. It is hoped that this book may contribute to elucidate some technical and legal questions relative to the law of the sea within a Mexican context and, at the same time, turn the attention of government officials, diplomats, academicians and students to the importance of the oceans’ uses and resources, given the advancements of science and technology at the dawn of the 21st century, in the development of countries like Mexico and in the progress of humankind.

Acknowledgements Many law of the sea specialists, law professors, scientists and government officials from the United States and Mexico contributed with their opinions, comments and critiques to the preparation of this book. To each and all of them I am truly grateful. First, I would like to express my personal thanks to Dr. John Norton Moore, Walter L. Brown Professor of Law and Director of the Center for Oceans Law and Policy of the University of Virginia School of Law, for encouraging me to undertake this ambitious academic work while continuing with my teaching activities at the University of San Diego School of Law. Dr. Moore deserves my sincere gratitude for his extraordinary and sustained support throughout the years it took me to write what I consider my magnum opus. Special thanks are also extended to my friend Dr. Myron S. Nordquist, Associate Director of said Center and Professor of Law at the University of Virginia; and to Dr. Ashley Roach, Captain of the U.S. Navy (Retired) and leading expert on maritime claims and maritime delimitation questions. Their sound critiques and recommendations served to enhance the overall academic quality of this book, giving it a more balanced and objective approach. I owe a special debt of gratitude to Prof. John E. Noyes, Roger J. Traynor Professor of Law at California Western School of Law, and Prof. Michael Reed, of USD School of Law. Their technical expertise on the law of the sea helped me to clarify and improve the substance of the final work. My personal thanks are also extended to Prof. Joseph Darby, USD friend and colleague and to Dr. Robert Smith, a leading law of the sea expert in maritime delimitation, who kindly reviewed the corresponding chapters of this book. I was fortunate to receive valuable comments from leading specialists in different aspects of the law of the sea, including Lic. Joel Hernandez, Legal Advisor of Mexico’s Secretariat of Foreign Affairs (SRE); Lic. Francisco José Valdés Roa, Director General for North America, SRE; Lic. Laura Ortiz, formerly at SRE’s Legal Advisor’s Office and currently at Mexico’s Supreme Court; and Lic. Jorge Toro, Head of the Department of Insular Territory, Secretariat of the Interior (Segob); Ms. Angelica Narvaez, Science Section of the American Embassy in Mexico City; and Ms. Elizabeth Tirpak and Brian Van Pay from the U.S. Department of State. A selected group of marine scientists reviewed the chapters on marine scientific research and islands and provided me with their ideas and suggestions. My sincere thanks go to Dr. Exequiel Ezcurra, Director of the US/MEXUS

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Program at the University of California, Irvine and former Director of the Natural History Museum at San Diego and Director of the Institute of Ecology of Mexico’s Semarnat; Dr. Stephen Swartz from NOAA; Dr. Karina Santos, Institute of Ecology, Semarnat; Dr. Luis Miguel Flores Campaña, University of Sinaloa; Dr. Saúl Alvarez Borrego and Dr. Lorenzo Rojas, both at Centro de Investigación Científica y de Educación Superior de Ensenada (CICESE), Baja California, Mexico; and Dr. Robert Knox, Ms. Rose Dufour and Ms. Elizabeth Brenner, from Scripps Institution of Oceanography at La Jolla. I would like to especially thank Kevin Cole, Dean and Professor of Law at the University of San Diego School of Law (USD) who provided me with generous support during the summers I devoted to the research and the writing of the manuscript. My personal thanks also go the librarians at the USD’s Pardee Legal Research Center for the efficient assistance they provided me in obtaining legal materials needed during the preparation of this book, in particular Ms. Melissa Fung, Reference Librarian for International law materials. Lic. Celia Toro, Director of Instituto Diplomático Matías Romero, SRE, and Lic. Cristina Tovar, who kindly helped me to consult important documents at SRE’s Historical and Diplomatic Archives in Mexico City. Many USD law students helped me with legal research. In particular, I would like to express my thanks to Marion Schuster (LL.M., USD 2010), Arlyn Escalante (USD 2010), Blaz Gutierrez (USD 2011), Suska Guice (LL.M., USD 2011), Lucrecia I. Lasarte (LL.M., USD 2011), Kristine Mercado (USD 2012), Betsabet De la Garza (USD 2011) and Joy Utomi (USD 2011). Given the length and technical nature of some of the chapters, my sincere thanks go to the assistants at the University of San Diego School of Law, in particular to Ms. Perla Bleisch, Lead Executive Assistant; Ms. Arlene Penticoff and Ms. Marina González, for their efficient support in preparing the final manuscript for publication. There are no words to express my most profound gratitude to the personal companion of my life, Lynda Grace, who has always been my source of inspiration, my enlightened teacher and my strict editor, who revised and edited the final version of the manuscript and who kindly provided me with her moral support and her steady encouragement during the preparation and writing of this book. University of San Diego School of Law Spring 2011

Chapter One Mexico and Its Territory: Constitutional Principles and Foundations 1. Introduction The notion of territory – jointly with three other “qualifications” enunciated for the first time by the Montevideo Declaration1 in 1933 – is one of the essential components required by modern international law to legally construct the concept of state.2 Given the prevailing statist concept3 attributed to international law on a global scale, the notion of “territory” assumes fundamental importance today as the physical space (or land base) where the state is located. In other words, the territory is that part of the land mass where a given state is physically situated on our planet. For thousands of years (even before the emergence of today’s concept of nation-state), the physical land base of a given country or nation – whether a kingdom, empire, republic or nation – has served to identify the simplest yet most ancient idea of a distinct nation-state placed in a geographical setting and interacting with similar territorial entities.4

1

2

3

4

The Convention on the Rights and Duties of States, Montevideo, December 26, 1933. 165 LNTS 19. Article 1 of this Convention reads: “The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.” This language is reproduced verbatim in the Restatement (Revised), Section 206. (Emphasis added ). This convention was ratified by the United States (with a Reservation) and a small number of States in Latin America, including Mexico (See Diario Oficial de la Federación [Mexico’s Official Daily of the Federation, similar to the Federal Register, hereinafter Diario Oficial or D.O.] of August 18, 1936. For a current and authoritative discussion of the classical criteria for statehood, see James Crawford. The Creation of States in International Law, 2nd ed. (2006) at 45–95. The primary normative unit in international law today continues to be the State instead of the individual. See Fernando Teson. The Kantian Theory of International Law. 92 Colum. L. Rev. 53 (1992). For a historical analysis of the genesis of the notion of State, see Strayer. On the Medieval Origins of the Modern State; Jean Gottman. The Significance of Territory (1973); H. Krabbe. The Modern Idea of the State (1922); H. Kelsen. General Theory of Law and State (1950); J. Mattern.

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In today’s industrial and commercial world, the State’s “territorial base” constitutes a major factor in assessing that State’s wealth and power at the international level. Accordingly, the State’s territory, and especially its extension, geographical location and physical and geological characteristics, translate into natural resources that fuel the economy, alleviate the needs of its population and promote commercial interactions with other States that may lead to important scientific and technological developments.5 Since States are territorial entities, the need to define the notion of territory and to explicitly articulate the kind of power or control the state exercises over said territory has been a constant in the minds of statesmen, jurists and politicians. However, throughout time the notion of state and the concept of statehood have gradually evolved in response to historical and philosophical developments.6 The vital importance that a State’s territory has acquired at the domestic and international levels has gained undisputed recognition and renewed attention on a global scale. This universal and contemporary awareness has been legislatively translated into authoritative prescriptions at the highest domestic level, generally codified in constitutional law provisions. This explains the fact that today a large number of States – especially among developing countries – include precise enumerations in their respective Constitutions7 of the physical components that form a part of their own territorial bases, such as is the case of Mexico.8 The significant scientific and technological accomplishments accumulated by humankind throughout its long history have gradually facilitated the expansion and diversification of the State’s territorial base. In its origins, the State’s territorial component simply consisted of the land mass delimited by natural boundaries such as rivers, mountains, lakes or deserts, or by artificial boundaries agreed by and demarcated between nations such as the geographical coordinates established by points of latitude and longitude.9 Later on, the territorial base of

5

6 7

8

9

Concepts of State, Sovereignty and International Law (1928); A. Larson and C.W. Jenks. Sovereignty within the Law (1965). An interesting comparison of States based on population, land area, gross domestic product, exports and imports appears in Barry E. Carter and P.R. Trimble. International Law (3rd ed., 1999) at 464–465. Similar charts have been produced by the UN, the EU, the World Bank, the CIA (The World Fact Book) and the World Almanac and Book of Facts. See Crawford, supra note 2 at 46–52. This is the case in Latin America, for example, of the constitutions of Bolivia (Art.108); Brazil (Art. 18, para. I); Cuba (Art. 6); Chile (Art. 99); Ecuador (Art. 117); Guatemala (Art. 142); Honduras (Arts. 9–11); and Venezuela (Art. 7). See Articles 27, 42 and 48, Federal Constitution of Mexico. For a discussion of these articles, see infra, in this chapter: Mexico’s Constitutional Provisions. For a detailed discussion of the initial segment of the terrestrial boundary of Mexico with the United States, see Jorge A. Vargas. Is the International Boundary between the United States and

Mexico and Its Territory

3

the State was enlarged to include islands and surrounding coastal areas formed by adjacent seas, gulfs and bays (that translated into the concepts of internal waters and the territorial sea), proceeding next to incorporate submarine areas such as the continental shelf.10 More recently, the continental margin and even the seabed and ocean floor within the limits of national jurisdiction – including any natural resources located therein, whether living or mineral – were legally added by means of proclamations11 or other important domestic law prescriptions and subsequently recognized by the law as exclusive to the appurtenant State. Science and technology played a decisive role in these marine and submarine “territorial” extensions, as well as the claims that incorporated the superjacent air space situated above the State’s land territory. Diplomatic history contains interesting passages of controversies that resulted from the unrestrained enthusiasm displayed by certain States during the 1970s and 80s in their endeavor to make exaggerated claims to magnify their territorial base.12 The successful conclusion of the Third United Nations Conference of the Law of the Sea, and the final formulation of the 1982 U.N. Convention, contributed to provide order, justice and peace in pursuing the goal of structuring a modern and universal public order for the oceans. Under this Convention, realms considered part of the state’s “territory” are well-defined.

2. Mexico’s Constitutional Provisions The Federal Constitution of Mexico was enacted in 1917 and is at the apex of that country’s legal system.13 Adhering to a European format and composed

10

11

12

13

Mexico Wrongly Demarcated? An Academic Inquiry into Certain Diplomatic, Legal, and Technical Considerations regarding the Boundary in the San Diego-Tijuana Region. 30 (2) Cal. West. Intl L. J. (2000) at 215–275. It is well known, for example, the superlative influence that the first Truman Proclamation No. 2667 of September 28, 1945 (10 Federal Register 12303) had in the creation of the legal notion of the continental shelf. See Ann L. Hollick. U.S. Foreign Policy and the Law of the Sea (1981), especially chapter 2: “The Truman Proclamations, 1935–1945” at 18–56. Regarding “proclamations,” the classical example is the Proclamation No. 2667 of President Harry S. Truman declaring the Policy of the United States with respect to the Natural Resources of the Subsoil and Seabed of the Continental Shelf of September 28, 1945, 10 Fed Reg. 12303. For additional information, see infra notes 83–90. See, for example, the Santiago Declaration regarding a Maritime Zone of August 18, 1952, which precipitated the so-called “Tuna War” between Chile, Ecuador and Peru, on one side, and the United States, on the other; or the fishing incidents known as the “Cod War” between Iceland and the United Kingdom, etc. Published in the Diario Oficial de la Federación (Federal Official Daily) on February 5, 1917; it entered into force on May 1, 1917. On this subject, see Jorge Carpizo. Las Reformas Constitucionales en México (The Constitutional Amendments in Mexico). UNAM, México (1983) and

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of 136 Articles, this Constitution was the first fundamental document adopted by Mexico in the 20th century. Notwithstanding that it has been amended some 500 times, the 1917 Constitution continues to be in force today.14 This fundamental public document was clearly inspired by the Constitution of the United States, and it enshrines the social, economic and political philosophy that precipitated the tumultuous social movement known as the “Revolution of 1910” that led to the emergence of modern Mexico.15 Articles 27, 42 and 48 of the Political Constitution of the United Mexican States detail the specific components forming the “national territory” of that country. The pertinent portions of these Articles read: A. Article 27 of the Political Constitution of 1917 (as amended) Article 27. Ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation, which has had, and has, the right to transfer said ownership to individuals, thereby constituting private property. . . . . . .. . . . The Nation is vested with the direct ownership of all natural resources of the continental shelf and the submarine shelf of the islands; of all minerals or substances, which in veins, ledges, masses or ore pockets, form deposits of a nature distinct of the components of the earth itself . . . petroleum and all solid, liquid and gaseous hydrocarbons; and the air space situated over the national territory, to the extent and within the terms established by international law.16 .......... The Nation is likewise vested with the ownership ( propiedad ) of the waters of the territorial seas, within the limits and terms fixed by international law; internal marine waters; . . . . . . . . In the cases to which the two preceding paragraphs refer, the ownership of the Nation is inalienable and imprescriptible (inalienable e imprescriptible) and the exploitation, use and utilization of the resources in question, by private individuals

14

15

16

Derecho Constitucional Comparado México-Estados Unidos (Comparative Constitutional Law Mexico-United States). Instituto de Investigaciones Jurídicas, UNAM, México (1990). Over the last few years, academicians, business persons and politicians have been making statements throughout the country suggesting that Mexico truly needs a brand new Constitution for the 21st century. The structure and content of the 1917 Constitution, its numerous amendments that have given it the appearance of a “patched up” document and the inclusion of certain substantive areas which would be better addressed in secondary legislation outside of the Constitution – among others – have been articulated as the major reasons for the formulation of a new fundamental document to be in closer symmetry with Mexico’s recent social, economic and political developments. See Jorge A. Vargas. The Constitution of Mexico. Mexican Law: A Treatise for Legal Practitioners and International Investors. West Group (1998), Chap. 2, Vol. 1 at 38, 37–67. Article 27, Federal Constitution, as amended by decree published in the D.O. of January 20, 1960. (Emphasis added ). The complete text of this article is reproduced in Appendix One at the end of this chapter.

Mexico and Its Territory

5

or by companies incorporated under Mexican law, may not be undertaken except through permits (concesiones) granted by the Federal Executive, pursuant to the rules and conditions established by the law. . . . . . . . . . . In the case of petroleum, and solid, liquid, or gaseous hydrocarbons, or radioactive minerals, no permits (concesiones) or contracts shall be granted nor may those that have been granted be continued (ni subsistirán), and the Nation shall carry out the exploitation of these products, in accordance with the provisions prescribed by the respective regulatory Act (ley reglamentaria respectiva).17 In an exclusive economic zone situated outside the territorial sea and adjacent to it, the Nation is vested with the sovereignty rights and the jurisdictions determined by the laws of Congress. The exclusive economic zone shall extend out to two hundred nautical miles, measured from the baseline from which the territorial sea is measured. In those cases in which this extension produces overlapping with the exclusive economic zones of other States, the delimitation of the respective zones shall be made as it may result necessary, through agreement with those States.18

B. Article 42 of the Political Constitution Article 42. The national territory comprises:19 I.

The integral parts of the Federation;

II. The islands, including reefs and keys in adjacent seas; III. The islands of Guadalupe and Revillagigedo situated in the Pacific Ocean; IV. The continental shelf and the submarine shelf (zócalos submarinos) of the islands, keys and reefs; V. The waters of the territorial seas to the extent and terms established by international law, and those of the internal waters ( y las marítimas interiores); [and] VI. The space located above the national territory to the extent and modalities (modalidades) established by international law.

17 18

19

Ibid. (Emphasis added ). This new paragraph eight of Article 27 of the Federal Constitution was added by a Presidential decree published in the Diario Oficial of February 6, 1976. This decree entered into force 120 days after its publication in the Diario Oficial. Subsequently, Mexico enacted a Regulatory Act of Paragraph Eight (Ley Reglamentaria del Párrafo Octavo del Artículo 27 Constitucional, D.O. of February 13, 1976) and a Decree establishing the Outer Boundary of the Exclusive Economic Zone (Decreto que Fija el Límite Exterior de la Zona Económica Exclusiva), D.O. of June 7, 1976 (This decree entered into force on July 31, 1976). (Emphasis added ). Article 42, Federal Constitution, as amended by decree published in the D.O. of January 20, 1960.

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C. Article 48 of the Political Constitution Article 48. The islands, keys and reefs of the adjacent seas that belong to the national territory, the continental shelf, the submarine shelf of the islands (zócalos submarinos de las islas), keys and reefs, the internal marine waters (las aguas marítimas interiores), and the space above the national territory shall be under the direct control of the federal government, with the exception of those islands over which the States have up to the present exercised jurisdiction.20

3. Mexico’s National Territory A. Opinions of Mexican Doctrinarians In essence, this triad of constitutional prescriptions – Articles 27, 42 and 48 – not only enumerate but legally define Mexico’s “national territory.” They represent what is commonly referred to by constitutional and administrative law specialists as the “geographical chapter” of the Political Constitution, formed by “that cluster of provisions pertaining to Mexico’s geography” that are principally found in the Second chapter, Second Title” of that important document.21 Mexican law experts agree that the “territory” is one of the “constitutive elements of the modern concept of State,” or nation, that is commonly defined as a, “public power exercised over a given population found within a specific territorial space.”22 Regarding the powers to be exercised by the State within its own territory – whether dominium or imperium – there has been a long and controversial debate in that country where the ideas of Hans Kelsen, Leon Duguit, Jellinek, Laband and Ranelleti have strongly influenced the Mexican doctrine, dating back to the National Constitutional Assembly of 1916–1917.23 César Sepúlveda, a leading international law expert, points out that studying a State’s territory is of the utmost importance because 20 21

22

23

Article 48, Federal Constitution, Ibid. See Felipe Tena Ramírez. Derecho Constitucional Mexicano (Mexican Constitutional Law) (1998), México at 185, 185–207. Dr. Tena attributes the term “Geographical chapter” to Emilio Rabasa, a leading constitutional law doctrinarian who coined it in the early 19th century. See, for example, Tena Ramírez, Ibid. at 185–186; Miguel Acosta Romero. Segundo Curso de Derecho Administrativo (Second Course of Administrative Law) (1993), México at 190– 193; Andrés Serra Rojas. Derecho Administrativo (Administrative Law) (1985), México at 256; and Gabino Fraga. Derecho Administrativo (Administrative Law) (1988), México at 375. See the Commentary to Article 27 by Rubén Valdés Abascal at 246–249. Derechos del Pueblo Mexicano. México a Través de sus Constituciones (Rights of the Mexican People. Mexico Through Its Constitutions). Vol. IV, XLVI Legislatura de la Cámara de Diputados. México, D.F. (1967) (hereinafter Derechos).

Mexico and Its Territory

7

[T]he territory is the nucleus of the so-called “territorial sovereignty [which is] the ambit that international law recognizes to a state to exercise its full sovereignty”. In contrast, in the other portions [of the state] this sovereignty admits limitations (Atenuaciones) imposed by the international legal order. Mistaken notions regarding the [power of the] state over its territory are rather frequent . . . especially among our Latin American countries where the idea of the territorial rights of the state is firmly linked to the notion of property. In many constitutional provisions the feudal concept that the sovereign is the owner of the territory continues to be repeated (i.e., Mexican Constitution, Article 27). In reality, the right exercised by the state over its territory is an “imperium,” not a realty right. And this is an “imperium” that takes place over each and every point of its own territory and over the individuals and objects located therein. This is the only notion that may be able to explain in a satisfactory manner all of the problems derived from the territory. The subsoil is not, by itself, a special part of the territory, as it has been asserted by many authors. Actually, it is only a small part of the subsoil that is subject to a special [legal] regime because of the important nature resources located therein.24

In symmetry with these ideas, Bernardo Sepúlveda Amor, former Secretary of Foreign Affairs, and currently a member of the International Court of Justice, in an academic work published in 1972 on the Mexican legal system and the law of the sea (with special reference to and the legal nature of Mexico’s territorial sea) wrote: The idea of property, a private law concept transplanted to public law, does not provide sufficient legal basis with respect to the title and authority the state claims over its marine spaces. In contrast, the notion of sovereignty, which means power to mandate, ius imperium, defines the essential nature of the interests that the State seeks to protect, among them: 1. Jurisdiction (Competencia) to control access to the territorial sea. . . .; 2. Legislation to apply civil and criminal legislation . . .; 3. Jurisdiction to control in an exclusive manner the fishing and mineral resources in the territorial sea, its seabed and subsoil.25

According to Felipe Tena Ramírez, an eminent constitutional law expert, the compromise solution to this controversy created by the conflicting ideas advanced by Mexican authors regarding the nature of the powers exercised by the state over its own territory should be placed within the doctrinarian debate 24

25

César Sepúlveda. Derecho Internacional (International Law). (1991) at 175. Sepúlveda suggests that his opinion should be compared with the ideas by W. Schonbron. La Nature Juridique du Territoire. Recueil des Cours, No. 30 (1929) at 85 et seq. See Bernardo Sepúlveda Amor. Derecho del Mar. Apuntes sobre el Sistema Legal Mexicano (Law of the Sea. Notes on the Mexican Legal System). XIII Foro Internacional, (No. 2), El Colegio de México (1972) at 239, 232–271. It is important to underline that Dr. Sepúlveda recognizes that Mexico exercises not property rights but “jurisdiction and control” over the territorial sea and over fishing activities and mineral resources, including those located in the seabed and subsoil.

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that took place within the Constitutional Assembly of 1916–1917 that formulated Mexico’s current Constitution.26 Contrary to the position adopted by the Constitution of 1917, Tena is of the opinion that, today, [T]he classical concept of the eminent domain of the State has been abandoned, thus subjecting the individuals’ property to this dominium not through expropriation but by means of recognizing that the original proprietor is, and has always been, the Nation.27

From a constitutional law viewpoint, Tena Ramírez advances this opinion: Public power (represented par excellence by the State), in using its imperium over the population within its territory, excludes at the international level any alien power and includes within the area of domestic law all those individuals who live within the territory. Accordingly, we can assert with Kelsen that the territory of a given state it is not but the special ambit of validity of the legal order known as the state.28

Miguel Acosta Romero, a leading administrative law expert, is of the opinion that: The concept of original ownership ( propiedad originaria) [found in Article 27 of the Political Constitution] is the determination of sovereignty by the Mexican State over all the lands and waters comprised within the national territory. Therefore, considering this original ownership in favor of the Nation, all of the natural resources enumerated in paragraphs 4 through 8 of said Article are specific kinds of assets belonging to the State, under the Nation’s sovereignty for purposes of their exploitation, and subject to a public law regime (régimen de Derecho Público), that recognizes the inalienable nature of these resources (inalienabilidad de estos recursos).29

More explicitly, Acosta Romero considers that the “physical-geographical elements” of the Mexican territory over which the State exercises exclusive sovereignty are:

26

27 28

29

Tena Ramírez, supra note 21 at 186. Regarding the debate on this question at the National Constitutional Assembly, see Pastor Rouaix. Génesis de los Artículos 27 y 133 de la Constitución Política de 1917 (Genesis of Articles 27 and 133 of the Political Constitution of 1917). Puebla (1945) at 146 et seq. Tena Ramírez, supra note 21 at 188. Following Kelsen’s ideas, Tena Ramírez explains that “[W]hen we talk about ‘territory’ we do not only refer to the earth’s surface but to the notion of territory as a tri-dimensional space that comprises the superjacent space situated above the territory. Going below, supposedly the state territory adopts the for of a cone whose vortex coincides with the center of the earth.” Tena Ramírez, supra note 21 at 185–86, footnote 1. Acosta Romero, supra note 22 at 194.

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1. The land mass and what is found upon it; 2. The subsoil, both in the land mass and in the territorial sea and the exclusive economic zone; 3. The continental shelf; 4. The territorial sea; 5. The exclusive economic zone; and 6. The superjacent air space.30 According to this author, the legal notion of “original ownership vested upon the Mexican Nation” is a singular solution of Mexico’s Constitutional Assembly. This notion “does not put in doubt the sovereign right of the State over lands and waters, thus eliminating the concept of Uti possidetis of the Spanish crown or the claim that international law has conferred upon the Mexican State its territorial sovereignty.”31 Acosta Romero asserts that the territorial sea and the superjacent air space are to be established by Mexico as a sovereign nation, regardless of the constitutional language that conditions the legal nature and width of these spaces “to the extent and within the terms established by international law.” Under Mexican law, all of the “elements” that compose the national territory of Mexico (including their corresponding natural resources) belong to the Mexican Nation (and not to the Federation or to each of the federal entities),32 with the legal and political understanding that the Nation is represented by the federal government.33 From an economic perspective, this means that until today the right to exploit certain important natural resources located within that country’s territory – in 30 31

32

33

Ibid. at 192. Ibid. at 195. Dr. Acosta Romero is emphatic in asserting that the power to establish and define the constitutive elements of the Nation, and their respective boundaries, belongs exclusively to that Nation irrespective of international law. Ergo, it is the domestic law of that Nation that controls and regulates said national territory. Id. at 169. Contra César Sepúlveda. Derecho Internacional, supra note 24 at 175–188. Pursuant to Article 40 of the Political Constitution, Mexico is politically structured as a “federal, democratic and representative Republic composed of free and sovereign States in all that concerns their internal government but united in a Federation established according to the principles established” by said Constitution. The integral parts of the Federation are thirty-one States and one Federal District (Distrito Federal ). The States are: Aguascalientes, Baja California, Baja California Sur, Campeche, Coahuila, Colima, Chiapas, Chihuahua, Durango, Guanajuato, Guerrero, Hidalgo, Jalisco, México, Michoacán, Morelos, Nayarit, Nuevo León, Oaxaca, Puebla, Querétaro, Quintana Roo, San Luis Potosí, Sinaloa, Sonora, Tabasco, Tamaulipas, Tlaxcala, Veracruz, Yucatán and Zacatecas. (Article 43) The Federal District – similar to the District of Columbia in the United States – is the venue of the Federal Powers and the capital of that country, and administratively functions as a State. See Tena Ramírez, supra note 21 at 189; and Acosta Romero, supra note 22 at 198.

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particular oil and natural gas, for example – lies exclusively in the hands of the federal government. However, as suggested by the Zapatista rebellion in early 1994,34 States endowed with generous natural resources such as water, oil and hydrocarbons, timber, minerals, etc. (including islands), today question the validity and appropriateness of this centralist and outdated constitutional interpretation. States’ demands of this kind are likely to continue considering, on the one hand, the abysmal difference between the economic affluence of Mexico City and the poverty of most States (in particular those in the southeastern part of Mexico where, paradoxically, oil and water resources abound) and, on the other, the emergence of a more democratic political treatment given to the States by the federal government.35 B. The Notion of Territory in Mexico’s Domestic Legislation Internally, the provisions of Articles 27, 42 and 48 of the Political Constitution are detailed and expanded by the corresponding secondary legislation, such as the General Act of National Assets, the Federal Oceans Act, the Federal Water Act, the Forestry Act, the General Act of Means of Communication, the Federal Fishing Act, etc. Thus, the General Act of National Assets (Ley General de Bienes Nacionales),36 specifically regulates Mexico’s national territory and enumerates those assets (bienes) that “constitute the patrimony of the Nation.” 1. The General Act of National Assets Pursuant to this federal statute, national assets are divided into six categories, including:

34

35

36

With the entering into force of NAFTA on January 1, 1994, a violent armed rebellion of the Ejército Zapatista de Liberación Nacional (National Liberation Zapatista Army or EZLN) erupted in Mexico’s southern State of Chiapas opposing NAFTA and the federal government. Among other demands, the EZLN demanded truly free and democratic elections, the end of “centralism” and the control by the federal government, and as a producer of electricity and oil given to the federation “without receiving anything in exchange,” “the communities of Chiapas demanded [to] receive the benefit of electric power and that a percentage of the economic income from the commercialization of the oil . . . be applied to the industrial, agricultural, commercial and social infrastructure for the benefit of all the people of Chiapas.” See Jorge A. Vargas. NAFTA, The Chiapas Rebellion and the Emergence of Mexican Ethnic Law. 25 Cal. West. Intl L. J. (Fall 1994) at 74, 1–79. See Eduardo Andrade Sánchez. Comentario al Artículo 42 (Commentary to Article 42). Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United Mexican States). Porrúa/UNAM (2003) at 129–38. Ley General de Bienes Nacionales (General Act of National Assets), published in the Diario Oficial of May 20, 2004.

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1. those mentioned in Article 27, paras. 4, 5 and 8; Article 42, para. 4, and 132 of the Political Constitution; 2. common use assets (Bienes de uso común); 3. movable and immovable assets of the federation; 4. movable and immovable assets owned by the federal entities; 5. movable and immovable assets owned by institutions of a federal character with a legal personality and patrimony; and 6. other assets considered as national by other statutes.37 In general, national assets are subject to a public dominium regime or to a specific regulation established by the applicable laws. Under Mexican Administrative Law, public dominium assets (Bienes de dominio público) are those destined to satisfy a service of the State, of the entities of the federation or of the municipalities, pursuant to the Civil Code for the Federal District (Article 765).38 Article 768 of the same Code prescribes: Common use assets (Bienes de uso común) are inalienable and imprescriptible. They may be utilized by anyone with restrictions established by the law but for special uses (aprovechamientos especiales) a permit (concesión) must be issued with the requirements prescribed by the respective laws.39

According to Acosta Romero, these assets are regulated by an exceptional legal regime established by Article 27 of the Constitution and other specific statutes. They include, inter alia, those mentioned in Articles 27, 42 and 132; common use assets (Bienes de uso común); the submarine continental and insular shelves; and the bed and subsoil of the territorial sea and of the internal marine waters.40

37

38

39

40

Art. 3, Ibid. Taken from Agenda de la Administración Pública Federal 2009 (Agenda of the Federal Public Administration 2009). ISEF, México (2009) at 3. See the Federal Civil Code (Código Civil Federal ), published in the Diario Oficial of May 29, 2000. Pursuant to Article 767 of this Code, [T]he public domain assets are divided into (i) property for public use; (ii) property for public services; and (iii) property held as private property. Taken from Jorge A. Vargas. Mexican Civil Code Annotated (Bilingual Edition). Thomson/West (2005) at 315. For additional information, see also “Bienes de Uso Común,” Rafael de Pina and Rafael Pina Vara. Diccionario de Derecho (Law Dictionary). México (2006) at 127. Article 29 of Mexico’s General Act of National Assets originally provided a complete enumeration of these assets (consisting of 15 categories) in Article 29 (now amended). The Spanish language of the Articles of the Civil Code for the Federal District was taken from Agenda Civil Federal 2009 (Federal Civil Agenda 2009). ISEF, México (2009) at 96. For the complete list of these assets, enumerated in twenty-one paragraphs, see Article 6 of the General Act of National Assets which include, for example, coastal areas gained from the sea, mural paintings and other artistic works attached to a federal building, historic and artistic monuments, archeological monuments, etc.

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Under Mexican law, these public dominium assets are owned by “public persons” (personas públicas or public legal entities) such as the Nation, federal entities and municipalities, and are governed by public law provisions (Régimen de derecho público). First, they are “inalienable” (Inalienables) in the sense that they cannot be alienated because these assets are outside the flow of commerce. Second, they cannot be permanently possessed or owned by an individual. Third, these assets cannot be acquired by means of the running out of a statute of limitations (i.e., prescripción adquisitiva or prescripción positiva under Mexican civil law); fourth and finally, these assets cannot be judicially attached under any circumstance (No son embargables bajo ningún criterio, ni bajo ningún régimen).41 Common use assets (Bienes de uso común) are enumerated by Article 7 of the General Act of National Assets. They include (only in those areas of interest to the law of the sea): I. II. III. IV.

V. VI. VII.

The air space situated over the national territory to the extent and within the terms established by international law; The internal marine waters pursuant to the Federal Oceans Act (Ley Federal del Mar); The territorial sea in the width established by the Federal Oceans Act; The maritime beaches, to be understood as those parts of the land covered and uncovered by the tides from the limits of the highest ebb tide up to the limits of the annual ebb tides (desde los límites de mayor reflujo hasta los límites de mayor flujo anuales); The federal maritime land zone (Zona federal marítimo terrestre); The ports and bays (radas and ensenadas); Dikes, barriers, docks, reefs, coastal roads (malecones) and other port works when destined to a public use.42

Mexico’s national assets (in all the legal categories established by the General Act of National Assets and other statutes) are subject to the ownership and exclusive jurisdiction of the government of Mexico; however, the use of these assets may be temporarily granted both to individuals (whether Mexican nationals or foreigners) or to companies for a specific purpose during the period of time established by the Secretariat of the Environment and Natural Resources (Semarnat). Article 8 of the General Act of National Assets prescribes:

41 42

Acosta Romero, Derecho Administrativo, supra note 22 at 217 et seq. Article 7 of the General Act of National Assets (herein after GANA) adds seven additional categories such as river beds, dams, roads and highways, buildings, public squares and parks, etc.

Mexico and Its Territory

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Article 8. All the inhabitants of the Republic may utilize the common use assets with no other restrictions than those established by the administrative laws and regulations. For the special utilization of these common use assets, a licence (Concesión), authorization or permit is required, granted under the conditions and requirements established by the laws.43

For example, when a hotel is built in a coastal area in Mexico it is common for the hotel to petition Semarnat for a licence (Concesión) allowing the hotel to take advantage of its close proximity to the ocean and be able to use the beach located between the hotel and the ocean for the benefit of its clients. Under Mexican administrative law, this beach area is legally known as the “Federal Maritime Land Zone” (Zona federal marítimo terrestre)44 and its use is regulated in detail by the General Act of National Assets.45 A licence (Concesión) is defined by this federal statute as “the right to use or utilize federal immovable assets, through a licence, for the realization of economic, social or cultural activities. . . .” These licences are granted for a maximum period of fifty years (although they may be renewed one or more times without exceeding the maximum term) depending upon certain conditions (i.e., amount of the investment made by the licencee, social and economic benefit, need of the activity or service to be provided, compliance by the licencee of the conditions imposed, etc.)46 These licences may be extinguished, cancelled or revoked.47 2. Mexico’s Territory and the Supreme Court of Mexico The Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) has produced several resolutions regarding the legal regime applicable to the natural resources mentioned in Article 27 of the Political Constitution, as well as to the use of national assets (Bienes nacionales). For example, with respect to oil, the highest court in Mexico wrote:

43 44

45 46 47

Article 8, GANA, supra note 36 at 6. Pursuant to Article 119, para. 1, of the GANA, the Federal maritime land zone “in beach areas is formed by the belt of twenty meters in width of the coastal area, where people can walk (Transitable) and immediately adjacent to the beach . . .” See Article 19, para. I, GANA. Title Four of this Act (Arts. 119–127) regulate the physical aspects as well as the economic and social aspects of this Zone. See, for example, Articles 72–77, General Act of National Assets. Art. 73, GANA. Arts. 74, 75 and 76, GANA. Semarnat is authorized to charge for the granting of any licences in the Federal maritime land zone depending upon its extension and locale, special characteristics, type of use, duration, etc. See Art. 127, GANA.

14

Chapter One Oil in the subsoil, Direct ownership of the Nation over it. Oil in the subsoil belongs to the Nation. Pursuant to an explicit mandate by the National Constitutional Assembly, it is the Nation who exercises over said oil a direct ownership; that is to say, unique, incompatible with any other [ownership], inalienable and imprescriptible, against which it is not possible to oppose any other [ownership] favoring an individual (Dominio particular). To raise the question of the ownership of oil [present in the subsoil], notwithstanding the content of Article 27 of the Constitution, paragraph VI, is to pretend that the constituted Judicial Power is to question the powers of the Constitutional Assembly. This is inadmissible under the most rigorous legal doctrine. If notwithstanding the categoric assertion of the constitutional precept alluded to, a claim may be made invoking ownership titles over said oil deposits, obtained prior to the promulgation of the Constitution, thus invoking the theory of acquired rights, it should be made clear that the laws attempting to connect the [land surface owner] with the [subsoil] oil deposits, did not produce any rights whatsoever in favor of said surface owner. In this regard, it should be added that the Supreme Court of Justice of the Nation, in several resolutions, has recognized only in favor of surface owners the right to explore and exploit the subsoil, but it has never considered that the ownership over the soil in the subsoil is to be owned by said surface owner. Besides, several courts of the United States of America have upheld the same criterion.48

Under Mexican law, Article 27 of the Political Constitution is recognized as one of its most important precepts because it establishes the fundamental principles that govern both public and private property in that country. The legal regime applicable to property is based upon the principle predicating public order that the national territory originally belongs to Mexico, as a nation, and is under the control of the federal government. Accordingly, private property is subject to the modalities and limitations dictated by the public interest and the right to regulate said property for the social benefit, the utilization of natural resources and the equitable distribution of public wealth, as explained in the next section. C. Article 27, Paragraph One 1. Historical Background From a Mexican constitutional law viewpoint, Article 27 enshrines a central aspiration of the Mexican people advanced during the 1910 revolutionary movement: the right of each Mexican campesino (peasant) to own a piece of

48

Taken from Derechos, supra note 23, Vol. IV, Article 27 of the Political Constitution, Tesis sobresalientes de la Suprema Corte (Leading theses of the Supreme Court). Semanario Judicial de la Federación (Federal Judicial Weekly of the Federation), Fifth epoch, Vol. VI at 2238–2239, reproduced at 1506–1507. (Emphasis added ).

Mexico and Its Territory

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land.49 This constitutional provision has not only a strong patrimonial content and a clear socialist objective but, more importantly; it serves as the foundation for delineating Mexico’s public policy regarding private property. In contrast to the U.S. policy on this matter, private property in Mexico is not considered to be an absolute right but, instead, a limited right subject to the discretion of the State.50 During the 19th century until early in the 20th century, Mexico’s most serious agrarian problem stemmed from the fact that the most fertile and arable lands throughout the country were owned by a relatively insignificant number of wealthy land entrepreneurs (Latifundistas and hacendados) who had very close business and political ties with dictator Porfirio Díaz, then president of Mexico. These entrepreneurs owned immense land properties that they utilized for commercial purposes such as agriculture, mining, timber, fishing, cattle raising, etc., employing thousands of Mexican peones (peons) to work and live on these lands in a system of indentured servitude.51 Exploited for decades and mistreated by the hacendados, who did not recognize any rights to rural peons (most of whom were indigenous peoples), these agricultural rural workers eventually rebelled against this system. They violently demanded the right to own the land they had been toiling and working on for a very long time – as their parents did before them for generations, – thus initiating the catastrophic and massive social revolution of 1910 that tragically resulted in one million casualties. This brief historical background may serve to explain that, pursuant to Article 27 of the Federal Constitution, property of lands and waters in that country is divided into three categories: public, private and social, each with a clearly defined legal regime. Since the Nation (i.e., the Mexican state) is vested originally with the ownership of lands and waters, it is the Nation that transfers the ownership of specific lands and waters to individuals, thus creating private

49

50

51

Article 27 provided the legal basis for the distribution of the land throughout the nation, the elimination of the old “Latifundio” system and the creation of the Ejido land, as a piece of rural land held under a collective ownership granted by the government to rural communities, and regulated by the Secretariat of Agriculture and Livestock (Secretaría de Agricultura y Ganadería). Diego Valadés. Article 27. Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United Mexican States). Porrúa-UNAM, México (2003), Vol. I at 417, 407–422. See Guillermo Floris Margadant. Official Mexican Attitudes Toward the Indians. An Historical Essay. 54 Tul. L. Rev.(1980) at 964; Thomas T. Ankersen and T. Ruppert. Tierra y Libertad: The Social Function Doctrine and Land Reform in Latin America. 19 Tul. L. Rev. (Spring 2006) at 69; Ewell E. Murphy. Back to the Future? The Prospects for State Monopoly in Hydrocarbons and Electric Power under Article 27 of the Mexican Constitution. 3 U.S.-Mex. Law J. (1995) at 49; and Lola Clayton Rainey. Monopolistic Land Tenure and Free Trade in Mexico. 23 Am. Indian L. Rev. (1998–99) at 217–237.

16

Chapter One

real estate; endows villages and communities with social property; and retains certain property, real estate and assets, as public property.52 Article 27 of Mexico’s Federal Constitution does more than simply recognize the aspiration of the Mexican population to private ownership. By emphasizing the original ownership of lands in the Nation this constitutional provision is loaded with a powerful ideological content and a high dosage of nationalism. This precept strongly proclaims Mexico’s “direct ownership” over any natural resources present in its territory, such as “solid mineral fuels, petroleum and all solid, liquid and gaseous hydrocarbons,” as well as radioactive minerals, whether found in its land mass, submarine continental shelf or in the exclusive economic zone. Legally, this precept provided the basis for the government of Mexico to expropriate the oil companies from the United States, Great Britain, France and The Netherlands that had been operating in that country for a number of decades until the late 1930’s when they defiantly refused to comply with a judgment rendered by Mexico’s Supreme Court.53 After negotiations conducted by the government of Mexico failed to persuade these companies to recognize the validity of the Supreme Court judgment and to legally abide by it, President Lázaro Cárdenas had no other alternative but to issue a decree on March 18, 1938, expropriating all the assets belonging to said companies and cancelling the permits originally issued by the government of that country for the

52

53

Ibid. In essence, public property is subject to an exceptional legal regime; social property is protected by the State which allows for the utilization of natural resources; and private property is protected by the constitutional rights enunciated by Articles 1–28 of the Federal Constitution (also known as “Individual guarantees” or Garantías individuales). The General Act of National Assets (Ley General de Bienes Nacionales, D.O. of May 20, 2004) regulates Mexico’s national assets and those belonging to the Federation or owned by federal entities (Articles 3–7). In what was originally a labor dispute, Mexican unions demanded a higher pay for their workers, as well as for Mexican professionals who were paid considerably less than their foreign counterparts working in Mexico. The case was taken on appeal to the Supreme Court which, in a 1937 decision, sided with the Mexican demands. Notwithstanding the foreign companies direct involvement in this labor litigation, when Mexico’s highest court rendered its unanimous decision, the companies outrightly refused to comply with its final judgment thus creating a highly volatile climate against them given their prepotent and arbitrary behavior. The government of Mexico, through its Secretaries of Labor and Foreign Affairs, mediated for months in the conflict attempting to persuade the companies to comply with the judgment to no avail. When all the legal and political avenues were considered to be exhausted due to the recalcitrant position taken by the foreign companies, Mexican President Cárdenas had no other choice but to sign the expropriation decree of March 18, 1938 which had been publicly demanded by the Mexican people. See Wendell C. Gordon. The Expropriation of ForeignOwned Property in Mexico (1976) at 102–123; George W. Grayson. The Politics of Mexican Oil (1980) at 81–102; and Edward J. Williams. The Rebirth of the Mexican Petroleum Industry (1979) at 97–126.

Mexico and Its Territory

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commercial exploitation of oil.54 Since then, Article 27 shines in Mexico – and throughout Latin America and other developing countries – as an example of the exclusive and unquestionable sovereign right that a nation exercises over its natural resources, including the right to expropriate or nationalize said resources when these measures may be demanded by public interest and the expropriation or nationalization is conducted in full compliance with recognized principles of international law.55 In Mexico, an expropriation based on “public interest” (por causa de utilidad pública) requires the enactment of a specific piece of legislation and is not subject to the discretion of an administrative authority. This authority is to validly prove the existence of public interest and the necessity of the State to utilize a given piece of property belonging to an individual for the benefit of the public (beneficio de la comunidad ), since a mere assertion or declaration by a given authority is definitely not enough.56 The language used in the opening paragraph of Article 27 did not appear in the draft Constitution formulated by President Venustiano Carranza in 1916.57 As pointed out by other authors, the Constitutional National Assembly (Congreso Constituyente de 1916–1917)58 held in the City of Querétaro explicitly

54

55

56

57

58

See L.H. Woolsey. The Expropriation of Oil Properties by Mexico, 32 AJIL 522 (1938); Charles C. Cumberland. Mexico: The Struggle for Modernity (1969) at 272–297; Nathan Simon Adler. The Mexican Petroleum Industry: Expropriation under President Lázaro Cárdenas. USD thesis (1976) at 52–122; Wendell C. Gordon. The Expropriation of Foreign Owned Property in Mexico (1941) at 53; and Antonio J. Bermúdez. The Mexican National Petroleum Industry. Stanford University (1963). The government of Mexico paid in full each of the foreign oil companies their respective economic indemnification pursuant to Mexican law and international law. Today, Article 27 of Mexico’s Federal Constitution includes a paragraph which reads: “Expropriations may only be done for reasons of public use (Por causa de utilidad pública) and subject to payment of an indemnification (y mediante indemnización).” Regarding expropriations for public interest, Mexico’s Supreme Court has issued a legally binding resolution (known in that country as Jurisprudencia) stating that “this kind of expropriation occurs only when there is a common benefit (beneficio común) in favor of a municipality, state or nation regarding the enjoyment of the expropriated asset. It does not exist [an expropriation for public interest] when an individual is deprived of what he or she legitimately owns, for the benefit of a private party, whether an individual, society or company, but always a private party.” Cited by Gabino Fraga. Derecho Administrativo (Administrative Law) supra note 22 at 375. The “message” rendered by President Carranza to the Constitutional Assembly in the City of Querétaro in 1916 to introduce his draft, as well as the complete text of the Draft Constitution (Proyecto de Constitución), may be consulted at Felipe Tena Ramírez. Leyes Fundamentales de México 1808–1991 (Fundamental Laws of Mexico). Porrúa, México (1991) at 745 and 764, respectively. For a discussion on Mexico’s Constitution of 1917, see Vargas, The Constitution of Mexico, supra note 15 at 38–45.

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Chapter One

recognized that the “ownership” of Mexico’s “national territory” is “vested originally in the Nation,” thus fusing the notion of sovereignty (imperium) with the concept of property (ownership). According to César Sepúlveda – an eminent international law scholar – this is a common doctrinarian practice among Latin American nations where “the idea of the territorial rights of the State is firmly joined with the notion of property.” “In reality” – Sepúlveda asserts – “the right the State exercises over its territory is an imperium, not a realty right. And this imperium is present in each and every point of the territory and is exercised upon persons and assets found therein.”59 The rationale behind the concept of ownership that Mexico exercises over its territory dates back to the system established by the original Colonial Spanish legislation whereby the King of Spain owned everything in the New Spain. This notion of absolute property owned by a single entity was later transplanted to Mexico, when this country gained its political independence. This notion transpired during the discussion of a proposal, submitted to the Constitutional National Assembly on January 25, 1917: Precisely because the King exercised the most absolute right of property in the colonial legislation, it may well be said that the right in question has been conveyed to the [Mexican] Nation with the same [legal] character. Under that concept, the Nation is to have full ownership over lands and waters in its territory, and only recognizes or transfers to individuals the direct ownership (dominio directo), under the same conditions this right was enjoyed by same individuals during colonial times and under the same conditions the [Mexican] Republic later on has recognized or transferred said ownership.60

From the angle of positive law (Droit positif ), the territory of a given State is but the spatial ambit of application or validity of the laws enacted by the State. In the case of Mexico, this is clearly reflected in the Mexican Civil Law notion of “Territoriality” or “Territorialism” found in Article 12 of the Federal Civil Code.61

59 60

61

See Sepúlveda. Derecho Internacional (International Law), supra note 24 at 175. Derechos, supra note 23 Vol. IV at 641. See also Tena Ramírez, supra note 19 at 186–188 regarding the legal meaning of “direct ownership.” Article 12 of the Federal Civil Code reads: Mexican laws apply to all persons within the Republic, as well as to acts and events which take place within its territory or under its jurisdiction, including those persons who submit themselves thereto, unless the law provides for the application of foreign law, or it is otherwise prescribed by treaties or conventions to which Mexico is a signatory party. Taken from Mexican Civil Code Annotated. Bilingual Edition (Transl. by Prof. Jorge A. Vargas). Thomson/West (2009) at 3. (Emphasis added ).

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2. Legal Interpretation Historically, the two fundamental principles found in the opening paragraph of Article 27 of the Mexican Constitution of 1917, namely, that (a) the ownership of the lands and waters within the boundaries of Mexico is vested originally in the Nation; and (b) that private property is subject to the collective rights of society and the dictates of public interest as interpreted by the Nation, conform to the legal philosophy advanced by the King of Spain at the time of the discovery and conquest of the New Spain in the 16th century.62 The Spanish navigators, explorers and conquistadors that landed in the New Spain in 1519 and those who follow them during the subsequent three centuries – public officials, notaries and attorneys, merchants, farmers, architects and masons, soldiers and priests – brought to the New World a rich and old mining tradition. The customs and rules associated with mining activities can be traced back in Spain to the times of Alfonso el Sabio63 and were later reflected in the wide and detailed mining legislation and ordinances contained in the Novísima Recopilación, and in the Recopilación de las Leyes de Indias,64 and later on in the Mexican mining legislation and codes of 1884 and 1892.65 Since the early times of the New Spain, the Spaniards became aware that the newly discovered lands were geologically endowed with vast a varied mineral riches and precious gems, including oil.66 Gold, silver, iron, copper, tin, mercury and lead were commercially exploited since the 16th century and 62

63

64

65

66

See Andrés Molina Enríquez. Sobre el Carácter del Artículo 27 Constitucional y el Derecho de Propiedad del Suelo y Subsuelo en la Historia de México (On the Nature of Article 27 of the Constitution and the Right of Property over the soil and subsoil in the History of Mexico) in Antología Minera de México (Mining Anthology of Mexico). Secretaría de Energía, Minas e Industria Paraestatal (SEMIP), México (1994) at 143–145. Alfonso el Sabio was king of Castille and Leon (1221–1284) who ascended to the throne in 1252. He is recognized as an eminent legislator for the enactment of the Siete Partidas (a collection of laws and customs of the epoch) and for his literary and scientific works. He was known as Alfonso the Wise for his patronage of literature and learning. See John A. Rockwell (1803–1861). A Compilation of Spanish and Mexican Law in Relation to Mines, and Titles to Real Estate. Volume I, containing a translation of the Mining Ordinances of the New Spain – Gamboa’s Mining Ordinances – the laws in relation to mines of gold, silver and quicksilver, contained in the “Novísima Recopilacion” and the “Recopilación de las Indias,” and the decrees of the Cortes of Spain and of Ferdinand VII. New York: J.S. Voorhies (1851). See María del Refugio González. Ordenanzas de la Minería de la Nueva España Formadas y Propuestas por su Real Tribunal (Mining Rules of the New Spain Formulated and Proposed by its Royal [Mining ] Tribunal ). UNAM, México (1996). For historical review, see Miguel Leon Portilla et al. La Mineria en Mexico (Mining in Mexico). UNAM (1978). Indigenous peoples were familiar with natural surface deposits of natural oil. The Aztecs refer to oil as “Chapopote.” In their Náhuatl language, the word chapopote was formed by tzacutli, glue, and popotchtli, perfume, and the Aztecs used it as glue to cover their bodies for religious and martial ceremonies, and also as chewing gum. Today, the word chapopote refers in

20

Chapter One

the considerable income generated by these minerals influenced the economic development of the New Spain, the growth and distribution of its population, the construction of roads and bridges, the establishment of cities and commercial centers and more generally the flourishing of the arts, architecture and culture.67 In the New Spain, mining activities were regulated in detail by the Novísima Recopilación68 and the Recopilación de las Leyes de Indias.69 At the time of the discovery and conquest of the newly discovered lands in the Western hemisphere by Spain and Portugal, the Royal Law (Derecho Real ) throughout continental Europe recognized the then emerging notion of “State” as the supreme structure from which the political power was exercised, derived from the notion of sovereignty predicated by Jean Bodin in the late 16th century. Bodin advanced the idea that the King’s sovereign power was the basis for royal absolutism, unlimited except by divine and natural law.70 It was believed then that the King was the “personification” of the State. Accordingly, from the 15th through the 17th centuries, all political power was exercised in the name of the King who had become the political symbol of the State.71 The power of the State, concentrated and symbolized by the monarch, was exercised through written royal ordinances. As described by Francisco Tomás Valiente, an eminent specialist on “Derecho real ” and on the history of Spanish law, Away from the image of a medieval roaming king, transient, without an established court, half soldier and half judge, the king of the 16th and 17th centuries

67

68

69

70

71

Mexico to asphalt or oil in a natural deposit. See Brigitta Leander. Herencia Cultural del Mundo Náhuatl (Cultural Heritage of the Nahuatl World ). SEP, México (1972) at 191. See Minería (Mining), Enciclopedia de México (Encyclopedia of Mexico). José Rogelio Alvarez, México (1997), Vol. IX at 147–174. See also Trinidad García. Los Mineros Mexicanos (Mexican Miners). Porrúa (1970). La Novísima Recopilación de las Leyes en España was an enormous legislative collection promulgated on July 15, 1805 by royal decree of the Borbon King Charles IV, prepared by the jurist Juan de la Reguera y Valdemar. Novísima Recopiliación was applied in the New Spain during the first half of the XIX century. This collection reproduces the royal legislation between 1484 and 1567 (including the Leyes de Toro dating back to the Ley de Alcalá of 1348 known as the Nueva Recopilación) that was revised by the Royal Council and was promulgated by Felipe II on March 14, 1567. See Francisco Tomás y Valiente. Manual de Historia del Derecho Español (Manual of the History of Spanish Law). Madrid (1995) at 268–269. La Recopilación de las Leyes de los Reynos de las Indias is a compilation of legislation intended to be applied in the Western Indies, including the New Spain, promulgated in Spain in 1680 by royal decree of Carlos II. See Nuevo Diccionario Jurídico Mexicano (New Mexican Legal Dictionary). UNAM, México (2001), Vol. 3 at 3192–3196. See, for example, Jean Bodin (also known as Johannus Bodinus). Six Livres de la Republique (1576) where he articulated his concept of absolute sovereignty. The epitome of this political philosophy was encapsulated in the phrase attributed to the King of France, Louis XVI, “L’Etat c’est moi” (I am the State).

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had an established court where he resided dedicated to “the handling and dispatch of papers,” thus becoming more and more of a bureaucrat (think in terms of Felipe II). The state started to become a bureaucratic machine. And bureaucracy is fond of written requests (Tramitación por escrito). . . . Such administrative or governmental ordinances did not have a general character but were of interest only to those who had to comply with them (the king’s officials or bureaucrats) or to the interested subjects. These were not general norms. As the royal power grew, the Royal Law increased immeasurably. Thus, the Royal Law was formed by laws.72

The Third Law compiled in the Novísima Recopilación was dictated by King Felipe II at Valladolid on January 10, 1559, and its title was: “Concerning the incorporation of mines of gold, silver and quicksilver in the Crown, as Royal Patrimony, and the mode of working them.” This law applied in the New Spain and it read: . . . First, we reclaim, resume, and incorporate in ourselves and in our Crown and patrimony all mines of gold, silver and quicksilver in these our kingdoms in whatever parts or places they may be or be found, whether the estates of the Crown or of the nobility or clergy, or belonging to the public or the townships or vacant lands, or in the estates and portions and lands of individuals . . . Second, . . . the said minerals as above stated is not with the view that we alone, or others in our name alone may seek for, discover, and work the said minerals, but rather that it is our purpose and pleasure that our subjects and native citizens shall participate in and have a portion of said minerals, and may employ themselves in the discovery and working of them; Therefore, by these presents we give permission and full authority to our said subjects and citizens, that they may freely without any other licence from ourselves or any other quarter, examine, seek for and excavate the said minerals of gold and silver, in all parts whatever of the estates of the Crown, or of the nobility or clergy, and all other persons whatsoever, as well in public territory, common and unappropriated lands, as in the estates and lands of individuals, or paying the damage to the owners.73

Francisco Javier de Gamboa, in his famous “Commentaries” to the Novísima Recopilación, made clear that “viceroys, presidents, and judges of audiences are commanded to maintain and enforce the precise and punctual observance of the ordinances of the new Code,” as reproduced in the Collection of the Indies.74 Turning to Civil Law, Gamboa commented that:

72 73

74

See Tomás y Valiente, supra note 68 at 263–264. Rockwell, A Compilation of Spanish and Mexican Law, supra note 64 at 113–115. This law virtually reproduced the language of Law II dictated by Juan I at Bribisca in 1387 which, in turn, derives from Law I from the Ordenamiento de Alcalá. According to Gamboa, these ordinances were adopted in the New Spain by the Viceroy Luis de Velasco and subsequently promulgated by the Marquess de Montesclaros on March 13, 1606 (Law I, Title 19, Book 4, Collection of the Indies). See Rockwell, Id. at 119.

22

Chapter One All veins and mineral deposits of gold or silver ore, or of precious stones, belonged, if in public ground, to the sovereign, and were part of his patrimony; but if on private property, they belonged to the owner of the land, subject to the condition, that if worked by the owner, he was bound to render a tenth part of the produce to the Prince, as a right attaching to his Crown; and that, if worked by any other person, by consent of the owner, the former was liable to the payment of two tenths, one to the Prince and one to the owner of the property.75

Based upon these ancient texts, Mexican legal specialists today strongly support the thesis, enshrined in Article 27 of Mexico’s Political Constitution, that the legal title over lands and waters within the boundaries of that country “is vested originally in the Nation,” including all types of minerals and hydrocarbons. This original title is inalienable and imprescriptible and extends not only to the natural resources present in Mexico’s land mass but also to its internal waters and territorial seas. Accordingly, the powers of the State, historically concentrated in the monarch has now being transferred to the sovereignty exercised as an imperium by the State, i.e., the Mexican nation, as the successor of said power. Mexico’s sovereignty is exercised over its inhabitants and transient people, and over its territory, as constitutionally defined, including any natural resources found therein. As originally mandated by the monarch, the Crown reserved its power to allow its subjects to exploit certain natural resources owned by the monarch, such as minerals containing gold and silver, by granting permits to said subjects. Today, it corresponds to the sovereignty of the Mexican State to grant permits to individuals or companies for the exploitation of certain natural resources such as minerals but not hydrocarbons. Thus, the Mexican Nation continues to have the exclusive and sovereign right to transfer the ownership (not the title) of any lands and waters, including natural resources, to individuals or companies, thereby constituting private property. In the intelligence that, as originally proclaimed by the monarch, said private property is to be established in conformance with and be subject to the realization of common good, i.e., the public interest. These ideas have been summarized by Andrés Molina Enríquez in the following conclusions:

75

Gamboa’s “Commentaries” is reproduced in Rockwell, Id. at 124. Gamboa added that the right of the Crown over gold and silver, and the condition to pay a tenth to the King was a prevailing custom at that time not only in Spain (and in the New Spain) but also in Germany, France, Portugal, Aragon, Catalonia, Naples and Valencia. Gamboa pointed out that the reason for this was “that the metals are applicable to the use of the public, who ought not to be reproduced by any impediments being thrown in the way of the discovering and working of their ores.” Id. at 124–125.

Mexico and Its Territory

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1. Pursuant to Article 27 of the Federal Constitution, the Mexican Nation, as successor of the Kings of Spain, exercises the same rights of private property said kings exercised over the geographical region that are today within Mexico’s national territory; 2. Pursuant to said property rights, the Kings of Spain owned as part of the Royal patrimony all the lands and waters within the Mexican national territory; 3. From the original rights of the Kings of Spain, currently exercised by Mexico, have derived all and any territorial rights acquired now by the Mexican inhabitants; 4. The original property rights of the Kings of Spain may be divided into three groups: i) direct ownership by individuals, thus creating individual property; ii) collective ownership in favor of communities, thus forming community property; and, iii) simple possession respected in favor of certain population groups (not yet politically organized); 5. The direct ownership established by Article 27 is identical to the private property notion that prevailed during colonial times (1519–1821); 6. Science has divided the territory into two parts: i) surface soil; and ii) subsoil; 7. In general, all the natural resources whose utilization or extraction may be done from the surface or in open pits, may be considered to belong to the surface soil; and to the subsoil, all the materials whose utilization or extraction require subterranean works; 8. Accessions must be taken into consideration with respect to the surface soil and the subsoil. For example, water and oil although they come from the subsoil, when they come to the surface or may be exploited from surface works, are considered to be forming a part of the surface soil by accession; 9. All realty rights should apply to the surface or superficial soil; and 10. The subsoil has not been excluded from the patrimonial rights of the Kings of Spain, and is included today among the Nation’s patrimonial rights, forming a part of its public patrimonial assets.76

76

Taken from Andrés Molina Enríquez. Sobre el Caracter del Artículo 27 Constitucional y el Derecho de Propiedad del Suelo y Subsuelo en la Historia de México, supra note 1 at 144–145. These conclusions appeared in a letter sent by this jurist to Mexico’s Supreme Court justices. Originally published in El Foro, journal of the Barra y Colegio de Abogados, June 1, 1919, Mexico City.

24

Chapter One

D. Article 27, Paragraphs Four through Seven In early 1960, Mexico significantly amended Articles 27, 42 and 48 of its Political Constitution.77 These amendments directly affected that country’s “national territory” by adding important marine spaces to its land base. In essence, the addition of these new and unprecedented “marine elements” provided a sound legal basis for the 1917 Constitution to create what is known today as the “marine chapter.” These constitutional amendments – proposed to the Federal Executive by the Secretariat of Foreign Affairs (Secretaría de Relaciones Exteriores) – responded to two novel considerations: first, to recognize the dramatic progress made in the codification process of international law of the sea as reflected in the four Geneva Conventions of 1958;78 and, second, the practical convenience of the government of Mexico of incorporating in the then newly codified law of the sea as part of in its internal legislation.79 The language of these amendments prescribed that “[T]he Nation is vested with the direct ownership of all natural resources of the “continental shelf and the submarine shelf of islands” and the “air space situated over the national territory, to the extent and within the terms established by international law.”80 In the Rationale prepared by the Federal Executive to introduce these amendments to the Mexican Congress, it was asserted that the reason to include the submarine continental shelf in Article 27 was to include all the natural resources of the continental shelf within the legal regime established by said Article. Given the nature of these resources, and the 77

78

79

80

See Decree that amends paragraphs fourth, fifth, sixth and seventh, of Paragraph I of Article 27, and Articles 42 and 48 of the Political Constitution of the United Mexican States (Decreto que reforma los párrafos cuarto, quinto, sexto y séptimo fracción I del artículo 27 y los artículos 42 y 48 de la Constitución Política de los Estados Unidos Mexicanos), published in the D.O. of January 20, 1960 at 1–3. Convoked under the aegis of the United Nations, the First U.N. Conference on the Law of the Sea (UNCLOS I) took place at the Palais des Nations in Geneva from February 24 to April 27, 1958 with the participation of 86 States. This conference produced four major conventions on: (a) the territorial sea and the contiguous zone (in force 10 September 1964) 516 UNTS 205; (b) on the high seas (in force 30 September 1962) 450 UNTS 11; (c) on fishing and conservation of the living resources of the high seas (in force 20 March 1966) 559 UNTS 285; and (d) the continental shelf (in force 10 June 1964) 499 UNTS 311, all of them signed on April 29, 1958. See Jorge A. Vargas. Terminología sobre el Derecho del Mar (Law of the Sea Terminology). CEESTEM, México (1979) at 75, 74–77. Jorge Castañeda. Obras Completas. II. Derecho del Mar (Complete Works: II. Law of the Sea). Las Reformas a los Artículos 27, 42 y 48 Constitucionales relativas al Dominio Marítimo de la Nación, y el Derecho Internacional (The Amendments to Articles 27, 42 and 48 of the Constitution relative to the Maritime Ownership of the Nation, and International Law). COLEF/ SRE, México (1995) at 18, 17–35. For the language of the Decree of 20 January 1960, see supra notes 16 to 18 and the accompanying texts.

Mexico and Its Territory

25

characteristics for their exploitation, it is evident that the direct ownership of these natural resources corresponds to the Nation.81

Aware of the geological fact that Mexico had a considerable continental shelf in the Gulf of Mexico, and that this submarine geomorphological prolongation of its territory was loaded with substantial oil deposits, Mexico had been following very closely the diplomatic negotiations between Venezuela and the United Kingdom that led to the conclusion of the Gulf of Paria Treaty in 1942,82 as well as the progress made by UNCLOS I regarding this submarine space. As it is known, among the most important legal developments that influenced Mexico’s position on this matter was the Proclamation made by President Truman in 1945 regarding the continental shelf.83 As recognized by César Sepúlveda, as well as other ocean law specialists, the Truman Proclamation on the continental shelf led to the serious doctrinal and systematic discussion of this submarine space as part of the progressive development of international law.84 The language of the Truman Proclamation was present in the 1958 Geneva Convention on the Continental Shelf.85 81

Derechos, supra note 23 at 664. The Rationale was explicit to point out that the continental shelf “is to depend directly from the government of the Federation . . . and not to be considered as a continuation of the territory of the federal entities having coasts in the seas of the Republic.” Ibid. at 666. (Emphasis added ). 82 This treaty – signed between both countries on February 26, 1942 – acquires special significance because it is the very first international agreement on a global scale that allocated the submarine area of this relatively shallow gulf in South America but rich in oil deposits. For additional information see the Order of the Council of August 6, 1942 and the Venezuelan Act of July 12, 1942. 83 On September 28, 1948, President Harry S. Truman issued Presidential Proclamation No. 2667 (10 Fed. Reg. 12303) that, in part, read: [T]he government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the highs seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected. See also Ann L. Hollick. U.S. Foreign Policy and the Law of the Sea. The Truman Proclamations: 1935–1945 (1981) at 18–61 (emphasis added ). 84 See Sepúlveda, The Submarine Shelf (La Plataforma Submarina), supra note 24 at 189, 188– 195. Gilbert Gidel, in his famous and influential work in Spanish throughout Latin America: La Plataforma Continental ante el Derecho Internacional (Valladolid, Spain, 1951), wrote that “the notion of the continental shelf entered into the legal arena with the Truman Proclamation.” With the exception of the extreme positions advanced by Chile, Ecuador and Peru in 1952, Gidel’s work exercised a most positive influence at the international level, including Mexico. See also Azcárraga, La Plataforma Submarina y el Derecho Internacional, Madrid (1952) at 98–100. 85 See Articles 1–3, Geneva Convention on the Continental Shelf of 1958. For a legal background of the Truman Proclamation and the evolution of the respective 1958 Geneva Convention

26

Chapter One

The 1960 amendments to Article 27 made no reference to the legal regime of the superjacent waters located over the submarine continental shelf. However, Ambassador Jorge Castañeda – who drafted said amendments and was a member of the Mexican delegation to UNCLOS I – in explaining the importance of the amendments rightly clarified that Mexico adhered to the language of the 1958 Geneva Convention on the Continental Shelf in the understanding that “the coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources” and that said rights “do not affect the legal status of the superjacent waters in the high seas nor of the air space above those waters.”86 Interestingly, this relatively recent and orthodox interpretation by Castañeda regarding the Geneva Convention on the Continental Shelf 87 was contrary to the position that Mexico had taken some years back. In effect, in 1946 the government of that country attempted to amend the same Articles 27, 42 and 48 of the Political Constitution and, for that purpose, formulated a legislative bill proposing that, in addition to the submarine continental shelf, its seabed and subsoil thereof, “[I]n the Nation is likewise vested the ownership of the waters of the seas that cover the continental shelf and the [islands’] submarine shelves. . . .”88 This legislative bill was passed by Mexico’s Congress (Congreso de la Unión) and then by a sufficient number of State legislatures to validly become a formal amendment to the Political Constitution of Mexico, as mandated by its Article 136.89 However, the President never promulgated the amendment in question.90

86

87

88

89

90

through the work of the International Law Commission, see Louis Sohn and John Noyes. Cases and Materials of the Law of the Sea, West Group (2006) at 495–502. Castañeda’s explanation quoted in Spanish directly from the language of Articles 2 and 4 of the 1958 Geneva Convention on the Continental Shelf. See Castañeda, supra 79 at 19–20. The Mexican Senate, pursuant to Article 133 of the Political Constitution, approved this convention on December 17, 1965 by decree published in the Diario Oficial of January 5, 1966, and promulgated on June 17, 1966 by decree published in the D.O. of December 16, 1966. The Geneva Convention on the Continental Shelf entered into force on June 10, 1964. Ibid. at 21. In Spanish the language reads: “además del lecho y el subsuelo, eran propiedad de la Nación las aguas de los mares que cubren la plataforma continental y los zócalos submarinos . . .” (Emphasis in the original ). Article 133 of the Political Constitution of the United Mexican States is a virtual copy of Article VI, Clause 2 of the Constitution of the United States. Article 133 reads: This Constitution, the laws of the Congress of the Union that emanate there from, and all treaties that have been made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the Supreme Law of the whole Union. The judges of each State shall conform to said Constitution, laws and treaties, notwithstanding any contradictory provisions that may be found in the Constitutions or laws of the States. Taken from Agenda de Amparo 2009 (Amparo Agenda 2009). México (2009) at 101. On the interesting matter on the legal condition of the “Aguas epicontinentales,” see the excellent article by Bernardo Sepúlveda Amor supra note 25 Vol. XIII, No. 2 (1972) at 244,

Mexico and Its Territory

27

The explanation for this unusual behavior is given in the rationale to the Constitutional Amendments (Exposición de Motivos a la Iniciativa de Reformas de los Artículos 27, 42 y 48 de la Constitución Política) of 1960 in these terms: The reasons for this change in the position of the Mexican Executive may be summed up in a single concept: the claim to exercise sovereignty over the waters that cover the continental shelf is, today, contrary to international law. This thesis was repudiated in a clear and conclusive manner by the United Nations Conference on the Law of the Sea, where 86 States practically represented the entire international community. As a clear indication of the of the will of the community of nations in this regard, it would suffice to remember that Article 3 of the Convention, that established the high seas regime, namely, the freedom of the seas in the waters and superjacent air space, was approved by the Geneva Conference with no vote against it and with only three abstentions. This fact acquires major importance when it is considered that the Convention on the Continental Shelf is, unquestionably, the expression of the current international law on this matter. The situation is so clear and definite that this Convention prohibits any reservation against that Article.91 .......... For all the previous reasons and after a mature pondering, the Federal Executive reached the conclusion that the best manner to serve the interests of the Nation is to adapt its legislation and its conduct to the prescriptions of the new International Law of the Sea, thus abandoning what may be characterized today as but a sterile dogmatic position.92

This amendment added a new fifth paragraph to Article 27 of the Political Constitution prescribing: “In the Nation is likewise vested the ownership of the waters of the territorial sea within the limits and terms established by international law.”93 This addition was in symmetry with Article 1.1 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone.94

91

92 93

94

232–271. The legal basis for this drastic change by the Mexican government – according to this author – was that “international law did not provide a valid title to exercise sovereign rights over the superjacent waters, thus “turning inoperative from a legal point of view [Mexico’s] unilateral declaration to exercise sovereignty over these waters” at 245. See also Azcárraga, supra note 84 at 103–105. Derechos, supra note 23 at 664–665, 662–668. See also Castañeda, who formulated the same arguments in a lecture that he gave before the National College of Attorneys of Mexico City (Ilustre y Nacional Colegio de Abogados de la Ciudad de México) on March 7, 1960, published in El Pensamiento Jurídico de México (Mexican Legal Thought), México (1960) at 45–67 (Emphasis added ). Derechos, supra note 23 at 665 (Emphasis added ). See Amending Decree of 1960, supra note 57 at 2. In Spanish, the newly added fifth paragraph reads: “Son propiedad de la Nación las aguas de los mares territoriales en la extensión y términos que fije el Derecho Internacional; las aguas marinas interiores;” This Convention entered into force on September 10, 1964, thirty days after the deposit of the twenty second instrument of ratification or adhesion. The Mexican Senate approved the Convention on December 17, 1965 (Diario Oficial of January 5, 1966). The corresponding instrument of adhesion (Mexico did not sign the Convention in 1958) was deposited

28

Chapter One

In 1960 – when these constitutional amendments were made – Mexico was perfectly aware that the width of the territorial sea was among the most controversial and still unresolved questions of international law. The impossibility of UNCLOS I to reach universal consensus on this matter in 1958 led to the convocation of UNCLOS II two years later, just a few months before these constitutional changes were proposed. The position adopted by Mexico, stating that the width of the territorial sea (and that of the superjacent air space) was to be established “within the limits and terms established by international law,” was clearly indicative of the invariable policy of respect for the norms and principles of international law characteristic of that country.95 The rationale prepared by the Executive provided a detailed explanation concerning the kind of “ownership” to be exercised by the Nation over its territorial sea, in these terms: However, the mere reference to the legal concept of ownership (propiedad ) is not sufficient. In the opinion of the Federal Executive it is convenient that the exercise by the Mexican State of all of the attributes of sovereignty over the territorial sea must be directly derived from the Constitution. If there were some doubts regarding the legal nature of the rights of the coastal State over the territorial sea when the Constitution was promulgated, today the situation is quite clear. According to current international law, the territorial sea forms part of the territory of the State; [therefore], the sovereignty that the State exercises over its territorial sea is of the same nature as the one it exercises over its land (dominio terrestre). The required constitutional amendment consists in including the territorial seas (mares territoriales) among the elements that comprise the national territory.96

This same rationale explained that the legal nature of the internal marine waters (“aguas marinas interiores”) was “similar” (semejante) to that of the territorial waters. Internal waters were defined as those situated in the interior of the territorial sea baselines and these should be distinguished from ‘other national internal waters’ (otras aguas interiores nacionales) such as lagoons, rivers, lakes, etc. which are enumerated in the fifth paragraph of Article 27 of Mexico’s

95

96

with the Secretary General of the United Nations on August 2, 1966, containing a specific reservation. In his lucid explanation of the 1960 constitutional amendments, Jorge Castañeda referred to the “wise position” adopted by Mexico on this matter in these terms: “The Constitution of Mexico, wisely, does not determine the width of the territorial sea of the nation, simply specifying that the property and the limits and terms over these waters” are to be established by international law. At that time (1960), Mexico had established a 9 n.m. territorial sea of the Nation, simply specifying that the property and the limits and terms over these waters are to be established by international law. At that time (1960), Mexico had established a 9 n.m. territorial sea well within the parameters of 3 and 12 miles, in the absence of an international rule agreed on this matter. See Castañeda, supra note 79 at 27. Derechos, supra note 23 at 666 (Emphasis added ).

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Political Constitution.97 In symmetry with the 1958 Geneva Convention on the Territorial Sea98 and with international law, the rationale clarified that the internal waters “cannot be assimilated to the territorial waters because each is subject to a different legal regime.”99 According to Bernardo Sepúlveda, [T]he concept of jus dominium does not constitute an appropriate legal notion [to be applied to the national territory] because it does not fully correspond to the normative nature of the jurisdictions (competencias) the State exercises over its territorial sea because said jurisdictions are not included within the concept of realty rights. The idea of property, a private law concept transplanted to the public law arena, does not provide sufficient foundation for the title and authority the State claims over its marine spaces. In contrast, the notion of sovereignty, which signifies the power to mandate (poder de mando), ius imperium, defines the essential nature of the interests that the State intends to protect such as, inter alia, 1) jurisdiction to control access to the territorial sea; 2) jurisdiction to apply the civil and criminal legislation; 3) jurisdiction to regulate the use of the territorial sea; and, 4) jurisdiction to control in an exclusive manner the fishing and mineral resources in the territorial sea, its seabed and subsoil.”100

Another addition to Article 27 of the Constitution was the prescription that the Mexican Nation was vested with the direct ownership of the “air space situated over the national territory (el espacio situado sobre el territorio nacional ), within the limits and terms established by international law,” in symmetry with Article 2 of the 1958 U.N. Geneva Convention on the Territorial Sea and the Contiguous Zone.101 The Rationale added that the incorporation of the air space as an integral part of the national territory of Mexico constituted an “undisputed principle.” 97

98 99 100

101

Some clarification may be needed in Spanish: the amending decree of 1960 referred to the internal waters as “aguas marinas interiores” whereas the Rationale provides its explanation with respect to “internal maritime waters.” Mexico’s Federal Oceans Act (Ley Federal del Mar, or FOA, published in the Diario Oficial of January 8, 1986) also uses the term “Aguas marinas interiores” (Internal marine waters) in Article 3 b) and in its Chapter II, Articles 34–41, among Mexico’s ocean spaces (Zonas marinas mexicanas). Prior to the relatively recent terminology utilized by FOA, the term “Aguas interiores” (Internal waters) was commonly used in Mexico and throughout Latin America. See Article 1.1 of the Convention. Derechos, supra note 23 at 666. See Bernardo Sepúlveda, supra note 25 at 239. This author concluded that to have uniform legal meanings, it would be “desirable” to adapt the Mexican domestic legislation to the international law principles, respecting the “limitations imposed” by it with respect to each marine space at 239–240. (Emphasis added ). Article 2, para. 2, of this Convention prescribes: “The sovereignty of the coastal state extends to the air space over the territorial sea as well as to its bed and subsoil.” (Emphasis added ). This language is identical in Article 2 of the 1982 U.N. Convention on the Law of the Sea of 1982. See also Castañeda, asserting that, at that time (1960), “the principle that the state exercises sovereignty over the air space covering its territory is unquestionable,” supra note 59 at 29.

30

Chapter One

In a closing argument underlining the importance of the constitutional amendments proposed, and with the purpose of facilitating the interpretation of the legal distinction between the different components of Mexico’s national territory, the Federal Executive wrote: To have proposed that the territory should also comprise the territorial sea, the internal waters, the continental shelf and the air space, does not mean that, in the opinion of this Federal Power, the sovereignty that the State exercises over said elements of its territory may have an identical scope as the sovereignty it exercises over its own land territory, which is not subject to the specific restrictions imposed by international law. Thus, the sovereignty over the territorial sea is restricted by the right of innocent passage of the other States and by other less important rights that equally have their basis on rules and institutions of international law. Regarding the continental shelf, its incorporation as part of the national territory signifies that the Mexican State exercises rights of sovereignty over it for the purpose of exploring it and exploiting its natural resources. And in relation to the sovereignty over the internal waters and the air space, the Federal Executive has also to take into account the restrictions that may derive from the treaties signed by Mexico or from international law.102

Pursuant to Mexico’s legal system, when these constitutional amendments were approved by the Federal Congress, the regulations defining the ownership of the Nation over the natural resources, including oil and hydrocarbons, and the incorporation of some marine spaces (such as internal waters, continental shelf, and the superjacent air space), were governed by the corresponding secondary legislation consisting of federal statutes derived from the respective constitutional provisions. E. Article 42 and the Component Parts of the Territory Mainly because of the territorial losses Mexico had suffered in the past, whether as a consequence of wars or as a result of international arbitral awards,103 that country seems to have developed an enhanced interest for the protection of its own territory vis-à-vis the United States of America. As described by political scientists, the bilateral relations between these two countries have not only been characterized as “asymmetrical” but, more importantly, appear to have

102 103

Rationale (Exposición de Motivos), Derechos, supra note 23 at 666–667. Mexico suffered the loss of territory as a result of two unfavorable international awards in these cases: the Isla de la Pasión, decided in favor of France by the King Vittorio Emmanuele III of Italy on January 28, 1931(see infra Gómez Robledo, La Isla de la Pasión, infra note 114); and the Chamizal case, awarded by Eugene Lafleur in 1911 against the United States. Gral. Anson Mills, U.S. Commissioner, opposed the award on an ultra vires claim which led the United States to refuse to enforce the award for longer than a century and a half. Finally, the impasse was resolved by means of a special treaty signed by both countries to resolve this boundary dispute on August 29, 1963. See César Sepúlveda, supra note 26 at 232–237; and Jorge A. Vargas. El Caso del Chamizal (The Chamizal Case). México (1964).

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been taking place in a bilateral atmosphere influenced by what may be aptly described as a political bipolarism.104 The Republic of Mexico’s territorial base encompasses 761,600 square miles (approximately 1,972,550 square kilometers), which is about three times the size of Texas. In addition, Mexico exercises sovereignty over numerous islands, reefs, cays and rocks in the Pacific Ocean, the Gulf of California, the Gulf of Mexico and the Caribbean Sea.105 With the United States, Mexico shares 1951 miles (3,346 km.) of international boundary formed by a combination of (a) an artificial boundary established by straight lines which unite specific points defined by their coordinates of latitude and longitude (179 miles); and (b) a natural boundary formed by the rivers Grande (1254 miles), Colorado and Tijuana (376.98 miles, including 24 miles of the Colorado in Arizona, and 140.73 miles in California). This boundary was established in accordance with the Treaty of Guadalupe Hidalgo106 which put an end to the war between both countries, as amended in 1853 by the Gadsden Purchase (Art. I).107 Article 42 of Mexico’s Political Constitution of 1917 (as amended in 1960)108 enumerates the component parts of its “national territory.” These are: 1. Thirty-two federal entities (31 States and one Federal District that serves as the venue of the Federal government and that of the Federal District), located on that country’s land mass; 2. Numerous islands in the adjacent seas; 104

105

106

107

108

“Bipolarism” is used to signify a close, constant and confrontational relationship between two neighboring states. See, for example, Alan Riding. Distant Neighbors (1989); Gastón García Cantú. Las Invasiones Norteamericanas de México (The Invasions of Americans in Mexico) (1980); Jorge Montaño. Misión en Washington, 1993–1995. México (2004), passim. See Jorge A. Vargas. Introduction to Mexico’s Legal System (posted at www.llrx.com). Mexican Law for the American Lawyer (2009), Chapter 1. See Article V, Treaty of Peace, Friendship, Limits and Settlement (Tratado de Guadalupe Hidalgo), signed on February 2, 1848, Treaty Series No. 207, 9 Stat. 922–43. The treaty was ratified by the United States on March 16, 1848, and by Mexico on May 30, 1848. Ratifications were exchanged at Querétaro, Mexico, May 30, 1848, and it was proclaimed July 4, 1848. See also Tratado de Paz, Amistad y Límites de 1848 in Tratados y Convenciones sobre Límites y Aguas entre México y los Estados Unidos. SRE, CILA (1957) at 9. In the United States, this bilateral agreement is known as the Gadsden Purchase and, in Mexico, as Tratado de La Mesilla, signed on December 30, 1853 (Art. I). See Decree amending Articles 27, 42 and 48 of the Political Constitution, published in the D.O. of January 20, 1960. For the current language of this article (as amended in 1960), see supra note 15 and the accompanying language. For the complete documentation regarding this amendment, see Manuel Bartlett Díaz. Las Reformas a la Constitución de 1917. Fuentes para su Estudio (The Amendments to the 1917 Constitution. Sources for Their Study). México (2004) at 251–282.

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Chapter One

3. 4. 5. 6. 7. 8.

Other physical oceanic features (such as reefs and keys); The submarine continental shelf of its land mass; The submarine continental shelf of islands; The internal marine waters; The waters of the territorial sea; and The air space above said national territory.109

This may be the most detailed enumeration in a contemporary constitutional document of the component parts of the national territory of any given nation.110 When one considers, however, the territorial losses Mexico suffered at the hands of major powers since it became independent nation in 1821 – the United States, for example, acquired more than half of that country’s territories111 as a result of the 1846–1848 war, ended by the Treaty of Guadalupe Hidalgo;112 the United Kingdom intervened in the formation of British Honduras, established in the original Mexican southeastern territory of Yucatán in 1893;113 and France ended up with Isla de la Pasión114 located in the Pacific Ocean (today known as Clipperton Island) in 1931 – it may be easier to understand Mexico’s official policy to make a public declaration in its Political Constitution (and

109 110

111

112

113

114

For the language of Article 42 see Appendix One at the end of this chapter. See, for example, the Constitutions of Bolivia (Art. 108); Brazil (Art. 18, para. I); Cuba (Art. 6); Chile (Art. 99); Ecuador (Art. 117); Guatemala (Art. 142); Honduras (Arts. 9–11); and Venezuela (Art. 7). In his message to Congress to report on the end of the war against Mexico, President Polk estimated that the newly acquired territory totaled over 851,598 square miles. See Compilation of Messages and Papers 1798–1908 at 2483–2484 ( James D. Richardson, ed.) According to Luis G. Zorrilla, a diplomat and historian who specialized in the relations between Mexico and the United States, as a result of the 1846–48 war, Mexico lost some two million hectares. Historia de las Relaciones entre México y los Estados Unidos de América, 1800–1958 (1977) (History of the Relations between Mexico and the United States of America), Vol. 1 at 222. See Ward McAfee and J. Cordell Robinson. Origins of the Mexican War: A Documentary Source book (1982); José María Roa Bárcena. Recuerdos de la Invasión Norteamericana, 1846–47 (1947). José L. Soberanes and J.M. Vega. El Tratado de Guadalupe Hidalgo. UNAM, México (1998). See also Richard del Castillo. The Treaty of Guadalupe Hidalgo. A Legacy of Conflict (1990) and Understanding the Treaty of Guadalupe Hidalgo on its 150th Anniversary. Southwestern J. Law and Trade in the Americas,Vol. V (Spring 1998) (The entire volume is devoted to discussing the 1848 Treaty). See Treaty between Mexico and the United Kingdom signed in Mexico City on July 8, 1893; the treaty entered into force on July 21, 1897. See Antonio Gómez Robledo. La Isla de la Pasión. México y el Arbitraje Internacional (Mexico and International Arbitration). (1965) at 103–157. La Isla de la Pasión, llamada de Clipperton (Isla de la Pasión also known as Clipperton). Secretaría de Relaciones Exteriores, México (1909). See Jorge A. Vargas. Isla de la Pasión. Terminología sobre Derecho del Mar (Law of the Sea Terminology) (1979) at 156–161.

Mexico and Its Territory

33

in the resulting secondary legislation) of each and every one of the physicalgeographical components that form a part of its national territory. The current language of Article 42 is the result of the amendment made by then President of Mexico, Lic. Adolfo López Mateos in early 1960, jointly with Articles 27 and 48,115 to put the domestic legislation of that country in symmetry with the progressive development of international law as reflected in the four 1958 Geneva Conventions on the Law of the Sea.116 Evidently, the language found in Article 42 closely adheres to that of the corresponding Convention save for minor departures with no serious legal consequences. The Geneva Convention on the Territorial Sea prescribes that “the sovereignty of the State extends, beyond its land territory and its internal waters . . . to the territorial sea”117 and “to the air space over the territorial sea as well as to its bed and subsoil”,118 asserting that “the waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.”119 These legal principles are incorporated almost verbatim in paragraphs V and VI of Article 42 of Mexico’s Political Constitution.120 Regarding reefs and keys, the 1958 Convention on the Territorial Sea made no explicit reference to them. However, the Convention provides a definition of “low-tide elevations” which under certain circumstances “may be used as the baseline for measuring the breadth of the territorial sea.”121 Evidently, Mexico interpreted this language in a logical manner when it considered that reefs and

115

116 117 118 119 120

121

See Decree amending Articles 27, 42 and 48 of the Political Constitution, published in the D.O. of January 20, 1960; the current language of Article 42 (as amended in 1960) is reproduced in supra note 19 and the accompanying text. See Art. 1, Convention on the Territorial Sea and the Contiguous Zone of 1958. Ibid. Art. 2, Ibid. Art. 5, Ibid. For the current language of Article 42, see supra note 19 and the accompanying text or find it reproduced in Appendix I at the end of this chapter. It should be noted that paragraph V of Article 42 (contrary to what is prescribed by Article 2 of the 1958 U.N. Convention) makes no reference to the sovereignty of the State exercised over the seabed and subsoil of the territorial sea. However, this omission has been corrected in Article 23 of Mexico’s Federal Oceans Act of 1986. Art. 11, Ibid. This article reads: 1. A low tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea. 2. Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own. The language of this article is reproduced verbatim in Article 13 of the 1982 U.N. Convention on the Law of the Sea.

34

Chapter One

keys (as geographical accidents “lying at or near the surface of the water”)122 were included within the Convention’s definition of “low-tide elevations.” In addition, based on geographical or historical reasons, certain reefs and keys were already subject to Mexico’s sovereignty and, therefore, a part of its “national territory.”123 Paragraph VI of Article 48 of the Political Constitution incorporates “the [air] space situated above the national territory to the extent and modalities established by international law,” as part of Mexico’s Anational territory.”124 Basically, this provision reproduces the language of the Convention on International Civil Aviation, signed at Chicago on December 7, 1944, asserting that “[T]he contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory.”125 Mexico is a party to this Convention since 1945.126 As of today, the vertical outer limit (or limits) of the territory of a State in the space above its land and maritime areas have not yet been determined.127

122

123

124

125

126

127

See “reefs” in Webster’s New Twentieth Century Dictionary of the English Language Unabridged (Second ed.) (1983) at 1515. “Key” is defined as a reef or small island (from the Spanish cayo) at 999. See, for example, the section under: “Islotes, Bajos, Cayos, Arrecifes y Bancos alejados del Continente en el Océano Pacífico (Islets, Low-tide elevations, Cays, Reefs and Banks distant from the Continent in the Pacific Ocean) in the official publication of Gobernación and Marina, titled: Islas Mexicanas (Mexican Islands) (1987) at 125–154; and Régimen Jurídico e Inventario de las Islas, Cayos y Arrecifes del Territorio Nacional (Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory) published by Gobernación in 1981. As amended by decree published in the D.O. of January 20, 1960, see supra note 19 and the accompanying text. Article, 1, Convention on International Civil Aviation, 61 Stat. 1180, T.I.A.S. 1591, 15 U.N.T.S. 295. Regarding the air space, 49 U.S.C.A.’ 1508(a) provides: The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States, including the air space above all inland waters and airspace above those portions of the adjacent marginal high seas, bays, and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction. Mexico signed to this Convention on June 25, 1946; the Senate ratified this Convention and the corresponding decree was published in the Diario Oficial of September 12, 1946; the Convention entered into force at the international level on April 4, 1947, including Mexico. See Mexico: Relación de Tratados en Vigor (Mexico: Treaties in Force), SRE (1996) at 155. See Restatement (Second) of the Foreign Relations Law of the United States § 16 (1965).

Mexico and Its Territory

35

F. Article 48 and Mexico’s Islands Article 48. The islands, keys and reefs of the adjacent seas that belong to the national territory; the continental shelf; the submarine shelf of the islands (zócalos submarinos de las islas), keys and reefs; the internal maritime waters (las aguas marítimas interiores), and the space above the national territory are subject to the direct ownership and exclusive jurisdiction of the federal government, with the exception of those islands over which the States have up to the present exercised jurisdiction.128

International law and State practice uniformly recognize today that a given State may validly exercise its absolute control and exclusive jurisdiction over adjacent islands based on geographical, historical or legal considerations. As a former colony of Spain, when Mexico acquired its political independence from this European power in 1821,129 all possessions that originally formed a part of the New Spain – constituted by land and islands – that Spain had acquired based on the Uti possidetis principle,130 were fully transferred to what is today Mexico. This transfer included the so-called “insular territory” that was considered to be a component part of the New Spain at that time. Accordingly, all of the lands and islands first discovered by Spain during the 16th century, and then physically acquired by the Spanish crown through effective occupation and possession,131 became original components of the New Spain. Later on, when Mexico became independent, all of these territorial possessions were legally transferred to and acquired by Mexico, as Spain’s successor as a politically independent nation pursuant to the Uti possidetis. Today, all of the land and oceanic components that originally composed the Vice-Royalty of the New Spain formed today an inherent part of Mexico’s national territory. Surprisingly, as of today Mexico does not have a definite and official number of the islands, cays and reefs that are comprised under its “national territory,” nor does it have a precise idea of the land area of these marine elements (i.e., islands, cays, reefs) or even of the length of its vast coastlines, considered to 128

129

130

131

See Decree that amends paragraphs fourth, fifth, sixth and seventh, of Paragraph I of Article 27, and Articles 42 and 48 of the Political Constitution of the United Mexican States, published in the Diario Oficial of January 20, 1960, supra note 77. Mexico acquired its independence from Spain by means of the Tratados de Córdoba signed by Agustin de Iturbide and Juan O’Donojú on August 24, 1821. The Act of the Mexican Independence was signed on September 28, 1821. The texts of these documents are reproduced in the excellent compilation of Felipe Tena Ramírez. Leyes Fundamentales de México, supra note 57 at 116 and 122, respectively. See Suzanne Lalonde. Determining Boundaries in a Conflict World. The Role of Uti Possidetis. McGill-Queen’s U. Press (2003) at 24–59. See Myres S. McDougal and W.M. Reisman. Claims to Establish Exclusive Appropriation on the Basis of Effective Occupation, Island of Palmas Case. International Law in Contemporary Perspective. (1981) at 615–628.

36

Chapter One

be the longest in Latin America.132 Although the Mexican government published several “catalogues” or “inventories” of its islands (including reefs, banks and cays) during the late 1970s and 1980s, none of these official publications stated exactly how many islands Mexico possessed as part of its national territory.133 Estimates range from 198 by Marina (1977) and 239 by Gobernación (1981), to the latest estimate of circa 438 (including cays, reefs and banks) by Gobernación/Marina (1987) Mexican Islands Pacific Ocean

Gulf of California

Caribbean Sea

Gulf of Mexico

and its

1. Baja California 2. Baja California Sur 3. Sonora 4. Sinaloa 5. Nayarit

34

11

9. Yucatán

13 11. Veracruz

7

25

19

10. Quintana Roo

8 12. Tabasco

2

30 21 05

30

6. Jalisco 7. Guerrero 8. Oaxaca Distant from land Total: TOTAL:

11 08 04 07 85 85

60

13. Campeche 14. Tamaulipas

21

12 15

Coastal Lagoons Tamiahua

Laguna Madre Laguna San Andrés

36 142

7

23 15

45 227

Source: Islas Mexicanas. Regimen Juridico y Catalogo. (Mexican Islands. Legal Regime and Catalogue) México, D. F., September 1987. This catalogue excluded islets, cays, lows, banks and reefs that given their small size cannot have a graphic representation in a nautical chart, as well as those islands connected with the land, and others not entirely surrounded by water sometimes during the year.

132

133

Jorge A. Vargas. Islas Mexicanas. Terminología sobre Derecho del Mar (Law of the Sea Terminology). México (1979) at 153–156. See, for example, 1) Bancos e Islas en el Océano Pacífico (Banks and Islands in the Pacific Ocean). Pesca, Serie Tecnológica No. 18. México (Nov. 1979); 2) Secretaría de Marina. Nuestros Mares. Condición Jurídica y Recursos Económicos. (Our Seas: Legal Condition and Economic Resources). México ( June 1981); 3) Catálogo Provisional de Islas y Arrecifes (Provisional Catalogue of Islands and Reefs ). Secretaría de Programación y Presupuesto, México (Sept./Oct. 1981); 4) Régimen Jurídico e Inventario de Islas, Cayos y Arrecifes del Territorio Nacional 1981 (Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory). Secretaría de Gobernación, México (Nov. 1981); and 5) Islas Mexicanas. Régimen Jurídico y Catálogo (Mexican Islands. Legal Regime and Catalogue). Secretaría de Gobernación and Secretaría de Marina. México (1987).

Mexico and Its Territory

37

Legally and administratively, the major problem with respect to Mexican islands is to determine which islands are under the exclusive jurisdiction of the federal government and which are under the control of the coastal states. The National Constitutional Assembly of 1916–1917 left the question unresolved when it prescribed in the original language of Article 48 of the 1917 Political Constitution, regarding the parts composing the Federation, that the islands (and other marine and submarine spaces) be under the direct control of the federal government . . . with the exception of those islands over which, the states, have up to the present exercised jurisdiction.134

There is no doubt that the intention of the Constitutional Assembly was that the islands should be under the jurisdiction of the Federation, as the entity representing the Nation vested with the direct and original ownership over Mexico’s national territory pursuant to Article 27 of the Political Constitution. However, in recent years, some coastal States with islands135 are beginning to disagree with or even challenge this principle. They argue that States possess the right to exercise jurisdiction over the islands that form a part of the territory of certain coastal States, including the right to own, utilize and control the islands’ natural resources and any present or future commercial uses.136 G. Marine Affairs under Mexico’s Federal Public Administration The Organic Act of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal ) prescribes that “the administration of the islands under federal jurisdiction” corresponds, in principle, to Secretaría de Gobernación (save when “per mandate of the law” this power belongs to another entity or agency of the Federal Public Administration).137 The same Article adds

134

135

136

137

Taken from Derechos, supra note 23, Vol. VI at 703 (Emphasis added ). This Article was approved by the unanimous vote of 157 in the session of January 26, 1917. For a detailed discussion on matters pertaining to Mexican islands, see the chapter devoted to islands in this book. The States with islands are Baja California, Baja California Sur, Sonora, Sinaloa, Nayarit, Jalisco Guerrero and Oaxaca in the Gulf of California and Pacific Ocean; Veracruz, Tabasco and Campeche in the Gulf of Mexico; and Yucatan and Quintana Roo in the Caribbean. See Laura Ortíz Valdéz. El Régimen Jurídico de las Islas Mexicanas (The Legal Regime of the Mexican Islands). UNAM (1994); María Julia Sobarzo Morales. Propuesta de una Nuevo Régimen Jurídico Interno para el Territorio Insular (Proposal for a New Domestic Legal Regime for the Insular Territory). Iberoamericana (1996); and Alicia Guadalupe Kerber Palma. Las Islas de México (Mexico’s Islands). Iberoamericana (1984). Article 27, para. XI, Organic Act of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal, published in the Diario Oficial of December 29, 1976, as amended). Taken from Agenda de la Administración Pública Federal 2009. (Federal Public Administration Agenda). ISEF, México (2009) at 7.

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Chapter One

that “federal laws and treaties” shall apply to these islands, and that jurisdiction over controversies involving said islands is to be exercised by those federal courts that are geographically closest to them.138 The Secretariats of the Navy (Secretaría de Marina);139 Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales);140 Communications and Transport (Secretaría de Comunicaciones y Transporte);141 Foreign Affairs (Secretaría de Relaciones Exteriores);142 Tourism (Secretaría de Turismo);143 etc. participate also in activities involving the Mexican islands.

4. Conclusions Under Mexican law, the concept of absolute ownership over lands and people derived from the absolute legal notion of property associated with the king that originated during the Middle Ages. This concept was adopted by the King of Spain prior to the era of discoveries in the late 16th century. This absolutist legal notion of property was then transferred, through the Principle of Uti Possidetis, to the New Spain among other Spanish territorial possessions in the Western hemisphere. Then, that concept was incorporated into Mexican public law when that country became independent from Spain in 1821. Principally because of historical considerations, and a profound sense of nationalism, the 1917 Political Constitution of Mexico strongly adhered to that “royal absolutist concept of ownership.” Article 27 of this Constitution prescribes that the sovereignty over the Mexican territory, and all its natural resources, is vested in the Mexican Nation; accordingly, the Nation is the sole and exclusive owner of the country’s territory in matters relating to the exploration and exploitation of natural resources, both land-based and marine. Recently, this medieval concept of property is beginning to be interpreted not as an absolute ownership concept but as an imperium associated with the concept of modern State. Under Mexican law, this “absolutist approach” to property questions explicitly includes the internal waters, the waters of the territorial sea and continental shelf as composing parts of Mexico’s national territory, as reflected in Articles 27, 42 and 48 of the Political Constitution. This interpretation is contrary to international law, both customary and conventional, including the

138 139 140 141 142 143

Ibid. Article Article Article Article Article

30, paras. IV–VII, XI–XII, XVIII–XX and XXIV and XXV, Ibid. 32–Bis, paras. V–IX, XVI–XIX, XX–XXIV, and XXXIX, ib. 36, paras. XVI–XX., ib. 28, para IV, ib. 42, para. I, ib.

Mexico and Its Territory

39

1958 Geneva Convention on the Continental Shelf and the current 1982 LOS Convention. Mexico, as a party to the 1982 Convention, is to modify the current language of Articles 27, 42 and 48, and adhere to what said Convention in particular, and international law at large, prescribe, namely that the coastal State exercises sovereign rights over said marine zones only for the purpose of exploring and exploiting its natural resources, whether living or non-living. However, contrary to its legal and antiquated assertions, Mexico does not own said marine zones. The rights of the coastal State are not proprietary or ownership rights but limited sovereign rights to simply explore and exploit the resources located therein.

40

Chapter One: Appendix One

Appendix One Document 1.1 ARTICLES 27, 42 AND 48 OF MEXICO’S POLITICAL CONSTITUTION OF 1917 AS AMENDED Decree that amends paragraphs 4, 5, 6, and 7, section 1, of Article 27, and Articles 42, and 48 of Mexico’s Political Constitution, published in the Diario Oficial de la Federación of January 20, 1960. Articulo 27. La propiedad de las tierras y aguas comprendidas dentro de los límites del territorio nacional, corresponde originariamente a la Nación, la cual ha tenido y tiene el derecho de transmitir el dominio de ellas a los particulares, constituyendo la propiedad privada.

Article 27. Ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation, which has had, and has, the right to transfer said ownership to individuals, thereby constituting private property.

........... Corresponde a la Nación el dominio directo de todos los recursos naturales de la plataforma continental y los zócalos submarinos de las islas; de todos los minerales o sustancias que en vetas, mantos, masas o yacimientos, constituyan depósitos cuya naturaleza sea distinta de los componentes de los terrenos, tales como los minerales de los que se extraigan metales y metaloides utilizados en la industria; los yacimientos de piedras preciosas, de sal de gema y las salinas formadas directamente por las aguas marinas; los productos derivados de la descomposición de las rocas, cuando su explotación necesite trabajos subterráneos; los yacimientos minerales u orgánicos de materias susceptibles de ser utilizadas como fertilizantes; los combustibles minerales sólidos; el petróleo y todos los carburos de hidrógeno sólidos, líquidos o gaseosos; y el espacio situado sobre el territorio nacional, en la extensión y términos que fije el derecho internacional.

........... The Nation is vested with the direct ownership of all natural resources of the continental shelf and the submarine shelf of the islands; of all minerals or substances, which in veins, ledges, masses or are pockets, form deposits of a nature distinct of the components of the earth itself, such as the minerals from which industrial metals and metalloids are extracted; deposits of the precious stones, rock-salt and the deposits of salt formed by sea water; products derived from the decomposition of rocks, when subterranean works are required for their extraction; mineral or organic deposits susceptible of utilization as fertilizers; solid mineral fuels; petroleum and all solid, liquid and gaseous hydrocarbons; and the air space situated over the national territory, to the extent and within the terms established by international law.

........... Son propiedad de la Nación las aguas de los mares territoriales en la extensión y términos que fije el derecho internacional; las aguas marinas interiores; las de las lagunas y esteros que se comuniquen permanente

........... The Nation is likewise vested with the ownership of the waters of the territorial seas, within the limits and terms fixed by international law; internal marine waters; those of lagoons and estuaries permanently

Mexico and Its Territory

41

o intermitentemente con el mar; la de los lagos interiores de formación natural que estén ligados directamente a corrientes constantes; las de los ríos y sus afluentes directos o indirectos, desde el punto del cauce en que se inicien las primeras aguas permanentes, intermitentes o torrenciales, hasta su desembocuadura en el mar, lagos, lagunas o esteros de propiedad nacional; intermitentemente con el mar; la de los lagos interiores de formación natural que estén ligados directamente a corrientes constantes; las de los ríos y sus afluentes directos o indirectos, desde el punto del cauce en que se inicien las primeras aguas permanentes, intermitentes o torrenciales, hasta su desembocadura en el mar, lagos, lagunas o esteros de propiedad nacional;

or streams; those of rivers and their direct or indirect tributaries from the point in their source where the first permanent, intermittent or torrential, to their discharge into the sea, or a lake, lagoon or estuary subject to national domain; intermittently connected with the sea; those of the natural inland lakes which are directly connected with streams; those of rivers and their direct or indirect tributaries from the point in their source where the first permanent, intermittent or torrential, to their discharge into the sea, or a lake, lagoon or estuary subject to national domain;

........... En los casos a que se refieren los dos párrafos anteriores, el dominio de la Nación es inalienable e imprescriptible y la explotación, el uso o el aprovechamiento de los recursos de que se trata, por los particulares o por sociedades constituidas conforme a las leyes mexicanas, no podrá realizarse sino mediante concesiones otorgadas por el Ejecutivo Federal, de acuerdo con las reglas y condiciones que establezcan las leyes

........... In the cases to which the two preceding paragraphs refer, the ownership of the Nation is inalienable and imprescriptible and the exploitation, use and utilization of the resources in question, by private individuals or by companies incorporated under Mexican law, may not be undertaken except through permits granted by the Federal Executive, pursuant to the rules and conditions established by the law.

........... Tratándose del petróleo y de los carburos de hidrógeno, sólidos, líquidos o gaseosos o de minerales radiactivos, no se otorgarán concesiones ni contratos, ni subsistirán los que, en su caso, se hayan otorgado y la Nación llevara a cabo la explotación de esos productos, en los términos que señale la ley reglamentaria respectiva.

........... In the case of petroleum, and solid, liquid, or gaseous hydrocarbons, or radioactive minerals, no permits or contracts shall be granted nor may those that have been granted be continued, and the Nation shall carry out the exploitation of these products, in accordance with the provisions prescribed by the respective regulatory Act.

........... [This paragraph Eight of Article 27 was added by decrees published in the Diário Oficial of Feburary 6, 1976 ] La Nación ejerce en una zona económica exclusiva situada fuera del mar terri-

........... In an exclusive economic zone situated outside the territorial sea and adjacent to it, the Nation is vested with the sovereignty rights and the jurisdictions determined by the laws of Congress. The exclusive

42

Chapter One: Appendix One

torial y adyacente a este, los derechos de soberanía y las jurisdicciones que determinen las leyes del Congreso. La zona económica exclusiva se extenderá a doscientas millas náuticas, medidas a partir de la línea de base desde la cual se mide el mar territorial. En aquellos casos en que esa extensión produzca superposición con las zonas económicas exclusivas de otros Estados, la delimitación de las respectivas zonas se hará en la medida en que resulte necesario, mediante acuerdo con estos Estados.

economic zone shall extend out to two hundred nautical miles, measured from the baseline from which the territorial sea is measured. In those cases in which this extension produces overlapping with the exclusive economic zones of other States, the delimitation of the respective zones shall be made as it may result necessary, through agreement with those States.

Articulo 42. El territorio nacional comprende:

Article 42. The national territory comprises:

I.

Las partes integrantes de la Federación; El de las islas, incluyendo los arrecifes y cayos en los mares adyacentes; El de las islas de Guadalupe y las de Revillagigedo situadas en el Océano Pacifico; La plataforma continental y los zócalos submarinos de las islas, cayos y arrecifes; Las aguas de los mares territoriales en la extensión y términos que fije el derecho internacional y las marítimas interiores, y El espacio situado sobre el territorio nacional, con la extensión y modalidades que establezca el propio derecho internacional.

I. The integral parts of the Federation; II. The islands, including reefs and keys in adjacent seas; III. The islands of Guadalupe and Revillagigedo situated in the Pacific Ocean; IV. The continental shelf and the submarine shelf of the islands, keys and reefs; V. The waters of the territorial seas to the extent and terms established by international law, and those of the internal waters; [and] VI. The space located above the national territory to the extent and modalities established by international law.

Articulo 48. Las islas, los cayos y arrecifes de los mares adyacentes que pertenezcan al territorio nacional, la plataforma continental, los zócalos submarinos de las islas, de los cayos y arrecifes, los mares territoriales, las aguas marítimas interiores y el espacio situado sobre el territorio nacional, dependerán directamente del gobierno de la Federación, con excepción de aquellas islas sobre las que hasta la fecha hayan ejercido jurisdicción los Estados.

Article 48. The islands, keys, and reefs of the adjacent seas that belong to the national territory; the continental shelf; the submarine shelf of the islands, keys and reefs; the internal marine waters, and the space above the national territory shall be under the direct control of the federal government, with the exception of those islands over which the States have up to the present exercised jurisdiction.

II. III. IV. V.

VI.

Chapter Two Mexican Marine Zones: Their Legal Regime under the Federal Oceans Act of 1986 1. Legal Historical Background At the initiative of Lic. Miguel de la Madrid Hurtado,1 then President of Mexico, the Congress of the Union enacted the Federal Oceans Act (Ley Federal del Mar or FOA) in January of 1986.2 This legislation constitutes the first statute enacted in the history of that country that defines and regulates in a systematic and comprehensive manner the ocean spaces under Mexico’s jurisdiction.3 The FOA is a public order statute derived from Article 27, para. 8, of Mexico’s

1

2

3

President De la Madrid’s Rationale (Exposición de Motivos) and legislative bill (Iniciativa de ley) is reproduced in Ley Federal del Mar (Presented by Bernardo Sepúlveda Amor, Secretary of Foreign Affairs). SRE, México (1986). Article 71 (Para. I) of Mexico’s Political Constitution empowers the President of the Republic to submit legislative bills to Congress; this right is shared with deputies and senators (Diputados and Senadores) of the Federal Congress (Congreso de la Unión) and with the State legislatures (Legislaturas de los Estados) (hereinafter Ley del Mar). Mexico’s Ley Federal del Mar (translated as “Federal Oceans Act”, hereinafter FOA) was published in the Diario Oficial de la Federación (Mexico’s federal official daily, similar to The Federal Register, hereinafter Diario Oficial or D.O.) on January 8, 1986. Some minor corrections (Errata or list of corrigenda) were made by a subsequent presidential decree: Fé de Erratas a la Ley Federal del Mar, D.O. of January 9, 1986. This decree entered into force the day of its publication. For an English translation of this federal Act, as well as President De la Madrid’s statement introducing the corresponding legislative bill to Mexico’s Federal Congress, see 25 International Legal Materials 889 and 900 ( July 1986), respectively. Prior to FOA’s publication, Mexico had enacted a multiplicity of federal statutes that addressed specific characteristics of marine spaces or regulated activities conducted therein. Some of these legislative enactments included, for example, the Navigation and Commerce Act of 1854, the Nation’s Immovable Assets Act of 1902, the Fishing Act of 1932, the National Waters Act of 1934, the General Means of Communications Act of 1940, the Act of National Assets of 1942, etc., including the Decree amending Articles 27, 42 and 48 of the Political Constitution of 1960. Unfortunately, sometimes little or no coordination existed among these federal enactments and there was no unified federal policy regarding the Nation’s marine spaces.

44

Chapter Two

Political Constitution (Ley Reglamentaria). Its provisions repeal “any and all legal provisions in force that oppose the FOA.”4 The statute specifies six oceanic spaces, legally characterized as “Mexican marine zones” (Zonas marinas mexicanas). These oceanic spaces consist of the following: a) the territorial sea; b) internal marine waters; c) the contiguous zone; d) the exclusive economic zone; e) the continental shelf and insular shelves; and f ) “any other [marine zone] permitted by international law.”5 The legal regime applied by Mexico to its surrounding marine spaces, whether (i) subject to Mexico’s full sovereignty (as is the case with respect to the internal marine waters and the territorial sea); (ii) for the exercise of sovereignty rights for the purpose of exploring or exploiting natural resources (such as is the case with the continental shelf ); (iii) to project certain jurisdictions for specific purposes (as those exercised in the contiguous zone for customs, fiscal, immigration or sanitary reasons); or (iv) where there is a collage of sovereignty rights, jurisdiction and other rights and duties (as occurs in the exclusive economic zone, for example), is contained in the 65 articles of the Federal Oceans Act of 1986.6 When Mexico enacted this piece of domestic legislation – four years after the final conclusion of UNCLOS III – the international legal community was still under the global sense of accomplishment generated by the successful termination of the United Nations Convention on the Law of the Sea, adopted on April 30, 1982, and opened for signature at Montego Bay, Jamaica, on December 10, 1982.7 Mexico’s fundamental purpose for enacting the FOA, as one of the first States to ratify the 1982 Law of the Sea Convention, was to put in symmetry that country’s domestic legislation with the general rules, principles and institutions contained in the Convention. Mexico realized that certain law of the sea rules in the Convention notably the exclusive economic zone provided that country with modern and effective legal tools to protect its marine resources. In essence, this purpose was identical to the reasons articulated in 19608 when

4

5 6

7

8

FOA, Article 2 (Transitorio). Matters not addressed by the FOA “relating to activities in the marine zones under national jurisdiction shall be governed by the national legislation in force to the extent that they do not oppose the FOA.” (Artículo Tercero Transitorio). Article 3, FOA. FOA’s decree prescribed that this federal statute was to enter into force on the date of its publication in the D.O., namely, January 8, 1986. See Final Act of the Third United Nations Conference on the Law of the Sea in The Law of the Sea. United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea. United Nations, New York (1983) at 168, 158–189. See the Executive’s rationale to amend Articles 27, 42 and 48 of the Constitution (Exposición de Motivos a la Iniciativa de Reformas de los Artículos 27, 42 y 48 de la Constitución Polítca), Chapter 1, note 72 and the accompanying text.

Mexican Marine Zones

45

Articles 27, 42 and 48 of its Political Constitution were amended to modernize them and make them conform to the language of the then “new” four U.N. Conventions formulated by the first Geneva Conference on the Law of the Sea of 1958.9 From a historical perspective, it is puzzling that Mexico – endowed with abundant marine resources, with the longest ocean littorals in Latin America and recognized by its diplomatic work at the two United Nations conferences on the law of the sea – waited until 1986 to enact its very first legislative pronouncement defining and regulating its marine spaces. Legal records dating back to 1960 indicate that Jorge Castañeda, in light of the amendments made at that time to Articles 27, 42 and 48 of the Political Constitution10 as a result of the codification work made by the first Geneva Conference on the law of the sea, suggested that: [B]ased upon the amended constitutional provisions, it would be possible to prepare, for the first time in the legislative history of Mexico, a General Act of the Nation’s Maritime Dominium (Ley General sobre el Dominio Marítimo de la Nación) to regulate in an organic manner all of its different aspects.11

Unfortunately, there was no reaction either by the Federal Executive or by the Congress of the Union to Castañeda’s proposal. However, the ideas he advanced in 1960 materialized a quarter of a century later in the Federal Oceans Act of 1986. A review of Mexico’s constitutional and legislative history suggests that the language used in constitutional documents and domestic legislation pertaining to the territorial sea and to other marine and fishing matters was prior to 1986, 9

10

11

Mexico’s leading LOS experts at that time, Jorge Castañeda and Bernardo Sepúlveda, strongly supported the rationale advanced by the Executive for making these constitutional amendments. For their opinions, see in Chapter 1 of this book Obras Completas, Vol. II, note 59 at 18; and Foro Internacional, note 70 at 103, respectively. As a result of these amendments, Article 27 prescribed the Nation is vested with the ownership (Propiedad ) over the internal marine waters and the waters of the territorial sea whose width and legal nature is to be determined by international law; Article 42 enumerated the parts that compose the Mexico’s national territory, including islands, reefs and cays, and the submarine continental shelf, including the air space over said territory in the extension and modalities established by international law. For a detailed discussion of these amendments, see Chapter 1, Part 3: Mexico’s National Territory, Sections C-F. This excellent and timely suggestion was presented in a lecture delivered before Mexico’s Colegio de Abogados on March 7, 1960, two months after the constitutional amendments appeared in print in the Diario Oficial. As an “Appendix” to his lecture, Amb. Castañeda accompanied a draft of said “Organic Act,” composed by 13 Articles divided into sections devoted to the territorial sea, the contiguous zone, and the continental shelf. This draft may be consulted at J. Castañeda. Las Reformas a los Artículos 27, 42 y 48 Constitucionales, relativas al Dominio Marítimo de la Nación, y el Derecho Internacional. Obras Completas, Vol. II, SRE/COLEF, México (1995) at 29, 17–33.

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rather laconic and general. Sometimes these brief legal provisions only provided the most basic information, devoid of specific details. In addition, these provisions did not use the technical and specialized terminology of the law of the sea, resulting in inaccurate and confusing statements.12 A brief review of the pertinent constitutional documents illuminates this point. In 1824, soon after its political independence from Spain three years earlier, Mexico enacted its first constitutional document establishing a federal and representative republic patterned after the Constitution of the United States. Article 1 of this constitution proclaimed that “[T]he Mexican nation was forever free and independent from the Spanish government and from any other power,” and Article 2 referred to the territory of what used to be the Viceroyalty of New Spain, “including the attached lands and adjacent islands in both seas.”13 The final paragraph of this Article added: “By means of a constitutional statute the demarcation of the boundaries of the federation shall be made.”14 Mexico’s subsequent constitutions – such as the conservative Leyes Constitucionales de 1836 (Constitutional Laws of 1836) promulgated by Antonio López de Santa Ana;15 the Bases Orgánicas de la República Mexicana de 1843 (Organic Bases of the Mexican Republic) also published by Santa Ana;16 and the Constitución Federal de 1857 (Federal Constitution of 1857), clearly influenced by the Constitution of the United States and published by a General Constitutional Congress on February 5, 185717 did not include any language relevant to the definition or demarcation of any of Mexico’s marine spaces.18

12

13

14 15

16

17

18

For a technical and detailed critique addressing the substance and language of numerous Mexican statutes on marine affairs questions, see Alberto Székely. México y el Derecho Internacional del Mar (Mexico and the International Law of the Sea). UNAM, México (1979) at 44–62. The texts of these Articles are taken from Felipe Tena Ramírez. Leyes Fundamentales de México 1808–1991 (Fundamental Laws of Mexico, 1808–1991). Porrúa, México (1991) at 168. Ibid. This “centralist” Constitution was composed of “Seven Constitutional Laws” and was signed on December 29, 1836 and published on December 30, 1836. Ibid. at 204–248. These “Organic Bases” were published by a national decree (Bando Nacional ) of June 14, 1843. Ibid. at 403–436. This constitution re-established in Mexico a strong and liberal federal, “democratic, representative and popular” form of government constituted in late 1857. Based on this constitution, the President was Ignacio Comonfort and Benito Juárez served as the Chief Justice of the Supreme Court (Presidente de la Suprema Corte de Justicia). This constitutional document served as a precedent to Mexico’s Federal Constitution of 1917. Articles 43–49 of the 1857 Constitution (influenced by Maximilan’s Estatuto Provisional ) included a section on the “National Territory,” closely resembling Articles 42–48 of the current 1917 Constitution. Ibid. at 606–629. See, in this regard, a similar analysis and conclusion regarding the outer boundary of the territorial sea in Székely, supra note 12, at 44–45.

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Evidently, during its initial years as an independent nation, Mexico was more concerned with establishing and maintaining peace and order in the country, consolidating its form of government and developing a sound economy than enacting domestic legislation to establish and regulate its surrounding marine spaces. During its first fifty years as a new nation, Mexico was afflicted with constant civil strife and internationally became the target of the territorial ambitions of England. In fact, the constitutional statute proposed by the first Federal Constitution of 1824 for the demarcation of Mexico’s boundaries was not properly implemented until the current Political Constitution of 1917 was in place.19 However, several legislative statutes, published prior to this Constitution, included a few provisions relative to the establishment and delimitation of that country’s marine spaces. As pointed out by Székely, these statutes sometimes resulted in contradictions and manifested an inadequate or improper use of the specialized and technical legal terminology characteristic of the law of the sea. In addition, the hierarchical level of these domestic enactments did not have a constitutional character.20 The oldest and most complete of such enactments includes the Estatuto Provisional del Imperio Mexicano (Provisional Statute of the Mexican Empire). This rather liberal and European-inspired document was prepared by Maximilian of Habsburg while he was still in Miramar, Italy, where a small group of Mexican conservative aristocrats and members of the clergy offered him the “Crown of the Mexican empire.” This Provisional Statute was enacted in 1865 during the ephemeral period when Mexico became a constitutional monarchy.21 Article 51 19 20

21

Ibid. Id. Under Mexican law, certain legislative enactments – of a higher legal nature – derive directly from a specific constitutional provision and are legally known as “Leyes reglamentarias del Articulado de la Constitución Política” which may be informally translated as “Reglamentary Acts.” This is the case, for example, of the “Ley Reglamentaria del Petróleo,” (Reglamentary Oil Act) derived from Article 27 of the Political Constitution. In general, most pieces of domestic legislation are enacted in Mexico by its Federal Congress; this legislation – which has no direct connection with a specific provision in the Constitution – are known as “Leyes ordinarias” or “Leyes comunes” (Ordinary or common statutes). Leyes ordinarias occupy a lower legal hierarchy than Leyes reglamentarias. The Estatuto was published on April 10, 1865. This document had neither a practical application nor any legal validity. Eventually, the conservative army was defeated by the Mexican liberal forces led by Gen. Ignacio Zaragoza in Querétaro, and Maximilian was shot, jointly with his generals Miramón and Mejía, at the “Cerro de las Campanas.” The republican government, who had been fleeing to avoid being captured by the Maximilian forces (supported by the French emperor Napoleon III), returned to Mexico City – the venue of the Mexican government – headed by President Benito Juárez on July 15, 1867 who re-establish the Federal Constitution of 1857. See Tena Ramírez, supra note 13, for the text of this interesting document at 668–680.

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of this Estatuto, considered to be the most detailed provision found in any constitutional document prior to the 1917 Constitution (under Title XII, Territory of the Nation) relative to the boundaries of the “Mexican territory,” explicitly included some “marine components” of Mexico’s territory. This Article reads: Article 51. Mexican territory is that part of the northern American continent, limited by: To the North, the boundary lines demarcated by the treaties of Guadalupe and La Mesilla, entered into with the United States; To the East, the Gulf of Mexico, the Antilles Sea, and the English establishment of Walize, enclosed by the boundaries established by the treaties of Versailles; To the South, the Republic of Guatemala, with the [boundary] lines that a definite treaty is to establish; To the West, the Pacific Sea, including within its demarcation the Sea of Cortés or Gulf of California; All the islands that belong to Mexico in the three seas; The territorial sea, in conformity with the principles recognized by international law, except for the provisions agreed to by treaty.22

The current Constitution of 1917 represents the most complete and systematic effort in Mexico’s legislative history to formulate an enumeration of the component parts of Mexico’s territory, as reflected in Article 27, and especially in Articles 42 and 48.23 Only after the promulgation of the Constitution did Mexico gradually begin to enact domestic pieces of legislation pertaining to marine spaces and similar matters. Most of these pronouncements addressed a specific legal area of the most important and controversial questions at that time, i.e., the width of the territorial sea, ports, fishing, construction of maritime works, etc.24

22 23

24

See Tena Ramírez, Leyes, supra note 13 at 676–678 (emphasis added ). For a discussion of Articles 27, 42 and 48 of the Political Constitution, see Chapter One, Sections 2 and 3. Early in the 1900s, the Federal Congress enacted some disperse and uncoordinated pieces of domestic legislation: for example, the Act of Immovable Assets of the Nation (Ley de Bienes Inmuebles de la Nación) of December 18, 1902, established a three-nautical mile territorial sea (Art. 4, para. I). This is the first legislative enactment that formally established Mexico’s territorial sea. See, for example, Regulations for the Construction of Works in Federal Zones and Navigable Ways (Reglamento para la Construcción de Obras en Zonas Federales y en Vías Navegables) of 1930; Amendment to the Act of Immovable Assets of 1935 (Enmienda a la Ley de Bienes Inmuebles de 1935), further amended in 1940 and in 1942, etc.

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2. Mexico’s Federal Oceans Act of 1986 Endowed with a long coastline bordering the Gulf of California, the Pacific Ocean, the Gulf of Mexico and the Caribbean Sea,25 with abundant living resources and a vast continental shelf rich in deposits of hydrocarbons and natural gas, as well as numerous islands,26 it was only logical for Mexico to take a salient part in the formulation of the 1982 United Nations Convention on the Law of the Sea. Mexico’s FOA of 1986 is intertwined with the 1982 Convention. Indeed, this statute is a consequence of the LOS Convention, as shown by the statute’s legal content and time of enactment. From legal, diplomatic and political perspectives, Mexico gave tremendous importance to the work conducted at UNCLOS III during its decade-long duration (1973–1982) and structured a team of leading specialists under the direction of Amb. Jorge Castañeda, that addressed the most novel and challenging law of the sea questions. Mexico anticipated that the resulting Convention of UNCLOS III was to become the most important instrument of international law governing the major uses and resources of the world’s oceans. The Convention would not be a repeat of UNCLOS I and II of 1958 and 1960 where the legal content of the four major resulting instruments were almost exclusively crafted by jurists from developed countries. In contrast, UNCLOS III was anticipated to be a multinational parliamentary forum to produce a “new law of the sea.” The interests of the vast number of developing countries attending the conference would not only be heard but be legally incorporated into the language of the new convention. As a member of the developing world, Mexico shared the idea with the Latin American group that the regional legal notion of a 200 nauticalmile zone was to become recognized as the cornerstone of that new legal regime for the world’s oceans. At that time, developing countries strongly embraced the idea of participating under the aegis of the United Nations in the process of 25

26

Because of the length of its marine littorals, estimated at some 8,000 miles, Mexico occupies the first place in Latin America, and the second in the region, because of its vast continental shelf rich in mineral deposits. It is estimated to have over 200 species of commercial fish (including tuna, shrimp, lobster, groupers and snappers, tropical fish, etc.), peculiar geomorphological formations in the seabed of the Gulf of California (i.e., metallogenetic holes), abundant deposits of polymetallic nodules in the Clipperton Trench in the Pacific Ocean and some 227 islands around its coastlines, among them Holbox, Isla Mujeres, Guadalupe, Cedros and the Revillagigedos. See Guadalupe de la Lanza Espino et al. Lagunas Costeras y el Litoral Mexicano (Coastal Lagoons and the Mexican Littoral ). Univ. of Baja California Sur, México (1994) and Oceanografía de Mares Mexicanos (Oceanography of the Mexican Seas). AGT Editor, México (1991). With respect to Mexican islands, see Article 48 of Mexico’s Political Constitution, Chapter One, supra notes 133–143 in this book, and the accompanying text.

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formulating a new legal regime that would eventually acquire the legal stature of a “Constitution for the Oceans.” Mexico believed that UNCLOS III would produce a new legal regime more favorable towards the developing countries. Mexico expected that this regime to provide these countries with better legal tools to define, utilize and protect their marine resources. At that time, the legal buzzing that engulfed the offices and meeting rooms at Tlatelolco27 – Mexico’s chancellery for external affairs – anticipated that the delicate task of formulating this new law of the sea was to require not only arduous and sustained work but the legal and diplomatic expertise Mexico was ready and willing to provide at that multilateral marine legislative conference. From a diplomatic viewpoint, Mexico stepped into this parliamentary negotiating forum with the determination to translate into legal rules and principles the priorities of a large number of developing countries, known then as the “Third World” countries. Mexico calculated that it would play a constructive role in the formulation of a new law of the sea. On July 26, 1974, at the first session of UNCLOS III at Caracas, Venezuela, President Luis Echeverría said: Mexico has always shown a keen interest in these [law of the sea] questions and has participated, very actively, since these questions were addressed by the United Nations, in the formulation of those antecedents that finally culminated in the institution of the patrimonial sea or exclusive economic zone. We are satisfied to have officially submitted the first proposal on this matter before the preparatory commission of this conference, associated with the country that is our guest today, Venezuela, and the Republic of Colombia. .......... As can be seen, the rights of the coastal state co-exist in the patrimonial sea with the rights of the international community. Said state cannot impose restrictions in an arbitrary or unjustified manner to the activity of other states. We have established the limits that, from our viewpoint, the actions of the coastal state should have. We accept, of course, that this state has duties in that zone, consistent above all with the protection and safeguard of those activities that may be considered as international public interests, such as navigation and the conservation of the living resources of the sea. .......... The patrimonial sea is a legal notion, new and special, reflecting the complexities of the new realities in the sea. It cannot be assimilated into the traditional categories of the law of the sea: it is neither territorial sea nor high seas. In the application 27

During the last days of the ancient Aztec empire, Tlatelolco was the last bastion of the Aztec resistance against the Spanish conquistadors. Cuauhtémoc, the last Aztec emperor, was captured there, to be then tortured and later killed by the Spaniards. During colonial times, the Tlatelolco convent became the very first college in the American hemisphere devoted to educating young Mexican indigenous peoples by Spanish priests. The education was trilingual, provided in Náhuatl, Latin and Spanish. Today, Tlatelolco refers to Mexico’s Secretariat of Foreign Affairs (SRE).

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of novel norms of the new law of the sea, it is evident that certain basic principles of the new international law in general – such as the principles of the abuse of the law, of an international public order and of good faith in the compliance of international obligations – shall have decisive importance as complementary means for the interpretation of these norms.28

Mexico’s Federal Oceans Act is among the first domestic legislative enactments derived from the 1982 U.N. Convention on the Law of the Sea. A. Rationale of the Federal Executive Power The 320 Articles of the 1982 Convention, jointly with its nine Annexes,29 constitute the most complete and authoritative legal regime ever formulated to govern human activities in the world’s oceans. This multilateral agreement codifies rules pertaining to the uses and resources of the oceans which are considered to embody major principles of customary international law.30 Therefore, the language of the 1982 Convention is formed by general rules of the law of the sea adopted and understood by the international legal community as forming a part of international law.31 28

29

30

31

See Third U.N. Conference of the Law of the Sea, Official Records, Vol. 2: Second Session, Caracas, Venezuela (1974) at 137–39. See also Rafael de la Colina. Evolución del Derecho del Mar en América. Contribución Latinoamericana (Evolution of the Law of the Sea in America. The Latin American Contribution). México y el Régimen del Mar (Mexico and the Oceans’ Legal Regime). SRE (19740) at 37–74; and J.A. Vargas. La Zona Económica Exclusiva de México (Mexico’s Exclusive Economic Zone). CEESTEM (1980) at 31–34. The eight Annexes refer to I. Highly migratory species; II. Commission on the Limits of the Continental Shelf; III. Basic Conditions of Prospecting, Exploration and Exploitation; IV. Statute of the Enterprise; V. Conciliation; VI. Statute of the International Tribunal for the Law of the Sea; VII. Arbitration; VIII. Special Arbitration; and, IX. Participation by International Organizations. Id. at 111–157. In his Proclamation No. 5030 (March 10, 1983), President Ronald Reagan declared that “international law recognizes that, in a zone beyond its territory and adjacent to its territorial sea, known as the . . . EEZ, a coastal State may assert certain sovereign rights over natural resources and related jurisdiction,” reproduced at 22 International Legal Materials (1983) at 465. In 1982, the International Court of Justice, in the Continental Shelf Judgment (Tunisia/ Libya) asserted that the EEZ “may be regarded as part of modern international law,” I.C.J. Reports 1982 at 74; in its subsequent decision regarding the Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment, the I.C.J. declared that it was “incontestable that . . . the EEZ . . . is shown by the practice of States to have become a part of customary law.” I.C.J. Reports 1985 at 33. See also the Letter of Transmittal of the Law of the Sea Convention by President William J. Clinton to the U.S. Senate dated October 6, 1994 (Sen. Treaty Doc. 103–39, pp. III–IV; 104 Cong. Rec. S14468, Oct. 6, 1994). René-Jean Dupuy and Daniel Vignes, in their well-known treatise, refer to these “general rules” as “simple and well-established principles.” Regarding the 1982 Convention, these same authors are of the opinion that “the major part of the law of the sea [that resulted from UNCLOS III], properly so called . . . had been established before the vote of the Convention. It

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In this regard, in the Rationale prepared by President Miguel de la Madrid when he sent to the Senate his legislative bill on the proposed “Federal Oceans Act,” he wrote: The oceanic regime [established by the 1982 U.N. Convention on the Law of the Sea] offers but a general framework, the basic norm (pauta) that the international community imposed upon itself, from which the States are to orient their policies to fulfill the double task of making the oceans serve humankind and, at the same time, preserving their ecological balance. In effect, the norms of the Convention are general. It is the practice of the States that shall give them their real content. Said practice shall take place pursuant to the national legislation that each State is to adopt, and shall constitute the true applied law of the sea. Besides, many of the Convention’s provisions, precisely because of their general nature, are not to enter into force automatically but require to be legislatively enacted at the national level for their full implementation. Moreover, a number of articles of the Convention obligate the States to legislate domestically in order to implement them, to comply with them and above all, to use the rights derived therefrom effectively against third parties”. As may be appreciated, the national legislation becomes the fundamental instrument for the country’s marine policy. It is from these ideas that the objective of this Legislative Bill (Iniciativa de Ley) arises.32

President de la Madrid added that the enactment of Mexico’s Federal Oceans Act was most opportune “to proceed with the task of ordaining the national legislative system within Mexico’s conception of what its marine policy should be.”33 He noted that his country never had such an opportunity in the past because “international law of the sea was plagued with grave defects and gaps and, above all, from a philosophical deficiency with regard to man’s position vis-à-vis the utilization of the oceans.”34 Regarding the process of incorporating the language of the LOS Convention into the provisions of domestic law, De la Madrid pointed out that said domestic measures “shall determine the path to be followed by international practice.”35 Finally, he advanced the idea that “Mexico, once again, become a

32 33 34

35

was the Conference itself which helped in the formation of, or collected together, new rules of custom which had been worked out during its discussions. This is particularly the case with regard to the concept of the exclusive economic zone and the principle of the common heritage of humankind as applied to the international seabed and ocean floor. Legislation arose which enshrined these concepts without waiting for the end of the conference.” See Dupuy-Vignes (Eds.) A Handbook on the New Law of the Sea. Academie de Droit International de La Haye. Nijhoff Publishers (1991), Foreword to the French Edition at 52. See Ley del Mar, supra note 1 at 8 (emphasis added). Ibid. Id. For an English translation of President De la Madrid’s rationale, see “Mexico: Law concerning Maritime Zones” (December 20, 1985). 25 international legal materials 889 (1986). Id. at 9.

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pioneer country whose behavior shall contribute to create said path, especially because of its strict adherence to the letter and spirit of the new international norms.”36 De la Madrid emphasized that when Mexico became the second country to ratify the LOS Convention; this was “naturally easy, because his country had been an important architect of many of its major provisions. Thus, [his] country knew the Convention in all of its details, given its direct involvement throughout its formulation process. Furthermore, because this instrument affected the exercise of sovereignty rights over our natural resources, its preparation during the Conference was always at the center of a national political debate.”37 1. The Conversion of International Law into Domestic Law The progressive development and codification of international law is not limited to the mere formulation of those general rules found in the language of international treaties and conventions. The developmental and codifying process – as asserted by Dupuy and Vignes38 – is renewed and continues to take place at the domestic level through the legislation enacted by States when they become parties of an international treaty or convention. This process only becomes complete when each of these States incorporate said rules into their own internal legislation.39 Since no international conference has ever been endowed with legislative power having universal and binding effect – including UNCLOS III – it is only evident that this kind of legislative international conferences are empowered “to only draw up a treaty whose effective area of application would be defined by the subsequent ratification of the various Parties,” in the words of Dupuy and Vignes.40 However, the mere act of ratification by a given party of such a treaty may not suffice, by itself, to produce the desired effect regarding a general rule of international law. It is indispensable to see how the language of those general rules is to find its way into the more concrete and specific language of the domestic legislation to be enacted by the party in question, subsequent to the requisite ratification process. For general rules of international law to operate at the domestic level, they must be incorporated into the legislation enacted by the competent legislative organ of the State in question. 36 37 38

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40

Id. Id. at 11. See Dupuy and Vignes, Law of the Sea. International Custom and Its Relations to the U.N. Convention on the Law of the Sea (1982) at 77–81. Ibid. at 77–81. These authors support the thesis that “the substance of customary law of the sea, subsequent to the 1982 Convention, is truly not easy to define . . . Discussion of the relationship between the 1982 Convention and customary law are subject to continual debate and re-interpretation” at 81. Ibid.

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In the long term, the aggregate of all the individual pieces of legislation at the global scale – as adopted by the international legal community – finally determines both the substance and the legal contours of the concrete rules crystallized in the domestic legislation that is derived from the general rules found in a given treaty. As explained by Antonio Gómez Robledo, an international law specialist, [T]he law of the sea, perhaps better than any other area, clearly evidences throughout its historical evolution a continued interaction between domestic legislation, on the one hand, and international treaties, on the other. One cannot have a complete understanding of said legislation without examining, even in a cursory manner, the international treaties.41

In sum, in the absence of an international legislature, the process of formation and codification of the international law of the sea takes place at two levels: first, within the context of multilateral legislative conferences organized under the aegis of the United Nations that result in an international treaty, such as the First United Nations Conference on the Law of the Sea in 1958 (UNCLOS I);42 the Second United Nations Conference on the Law of the Sea in 1960 (UNCLOS II);43 and the Third United Nations Conference on the Law of the Sea finalized in 1982 (UNCLOS III);44 and, second, at the national level through the enactment of domestic legislation by each State who becomes a party to the international treaty or convention formulated by said conferences. As mandated by the pertinent constitutional provisions, the general rules of the law of the sea are required to be adopted and then incorporated into the corpus of the domestic legislation of those States to legally bind each individual State. This occurs through the process of ratification of the international treaty in question and the subsequent enactment of the domestic legislation. The presence at the universal level of common legal features found in the rules of domestic legislation represent a universal consensus that convert them into effective international rules of the law of the sea. According to Dupuy and 41

42

43

44

See Antonio Gómez Robledo. El Derecho del Mar en la Legislación Mexicana (Sinopsis HistóricoEvolutiva) (The Law of the Sea in the Mexican Legislation. A Historical Synopsis). México y el Régimen del Mar. (Mexico and Its Oceans’ Regime). Secretaría de Relaciones Exteriores (SRE), México (1974) at 81. UNCLOS I took place at the Palais des Nations in Geneva, Switzerland, on February 24 through March 27, 1958 with the participation of 86 States. UNCLOS II was held at the same place from March 17 through April 26, 1960 with the participation of 88 States. UNCLOS III held its sessions at the U.N. headquarters, the Palais des Nations in Geneva, Parque Central in Caracas, Venezuela with the participation of about 150 States, and the signature of it in Montego Bay, Jamaica, See also, in this regard, Dupuy and Vignes, supra note 40, Vol. I at 77–81.

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Vignes, “this type of treaty becomes a powerful testament to the ‘state of the art’ in the area of international law.”45 The final text of the 1982 Convention (together with resolutions I to IV, forming an integral whole) was adopted on April 30, 1982, by a recorded vote taken at the request of the United States delegation.46 2. Ratification by Mexico of the 1982 United Nations Convention on the Law of the Sea When the Convention was open for signature, Mexico signed it on December 10, 1982, at Montego Bay, Jamaica, as part of the Final Act of the Third U.N. Conference on the Law of the Sea and President De la Madrid sent it to the Mexican Senate seeking its approval, pursuant to Article 89, para. X, of the Political Constitution.47 This provision empowers the President to conduct the country’s foreign affairs and to make international treaties, submitting them to the approval of the Senate. Article 76, para. I, of the same Constitution gives the Senate the exclusive right to “analyze” said foreign policy, “based on the annual reports the President of the Republic and the Secretary of Foreign Affairs submit to Congress.”48

45

46

47

48

Dupuy and Vignes, supra note 38 at 79. These authors consider that “[U]nder such conditions, a treaty’s influence transcends its State Parties, binding as well those not privy to its signing. It does so by virtue of the fact that it is seen as a clear contemporary balance sheet of official practice on the part of a substantial number of nations, offering a collective reference point far preferable to fragmentary, incoherent temporary variants of official practice which might otherwise be admissibly invoked.” The result of the recorded vote (with two delegations not participating in it) was 130 in favor (including Mexico), 4 against (United States, Israel, Turkey and Venezuela) with 14 abstentions (including, inter alia, the United Kingdom, Germany, Spain, Italy, Belgium The Netherlands, the Soviet Union and the Socialist block, etc.). As stated in the Final Act, the Convention is subject to ratification (Arts. 305 (2) and 306) and was opened for signature from December 10, 1982 until December 9, 1984 at the Ministry of Foreign Affairs of Jamaica and also from July 1, 1983 until December 9, 1984 at the United Nations Headquarters. After this closing date at the U.N. Headquarters, the Convention was deposited with the Secretary-General of the United Nations. See Final Act, supra note 7 at 168. One of the very first acts by President de la Madrid’s administration (who took office on December 1, 1982) was to send the LOS Convention to the Senate on December 14, 1982. The Senate gave its “approval” on December 29, 1982. The corresponding decrees of approval and promulgation appeared in the Diario Oficial on February 18 and June 1, 1983, respectively. The instrument of ratification was deposited with the Secretary of the United Nations on March 18, 1983. Significantly, this date coincided with the 45th anniversary of Mexico’s nationalization of the oil industry. On this subject, see footnotes 43–45, Chapter One, and the accompanying texts. Article 76 of Mexico’s Political Constitution enumerates the exclusive powers of the Senate. According to Article 89, para. X (Initial part), of the same Constitution, the President of the Republic is empowered: “[T]o direct foreign policy and to make international treaties, as well

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Mexican constitutional scholars have pointed out that in the Draft of the Constitution submitted by President Venustiano Carranza to the Constitutional Assembly in Querétaro in 1916, the power given to the Senate “to analyze” the President’s foreign policy was not included. This “analytical” function was added as a result of a constitutional amendment in 1977.49 The additional power attributed to the Senate formalized the already existing practice of this legislative body to make general comments on the President’s developments in foreign affairs devoid of any sense of approval.50 Historically and politically Mexico has had a very strong Executive Power. Tena Ramírez, a constitutional law expert, aptly criticizes the language of Article 76, para. I, which is the result of a 1977 amendment.51 He points out that the Constitution vests the President of the Republic with the exclusive right to formulate and conduct Mexico’s foreign affairs. Although the President informs Congress every year on this policy, this is done with the purpose of using Congress as a conduit to inform the nation of these affairs. Accordingly, the information the President gives to Congress is for information purposes only and it does not seek to obtain any approval from Congress. On this matter César Sepúlveda, an eminent international law specialist, writes that the notion of federalism was originally predicated upon a strong separation of powers. This led to the structuring of the Executive power “with almost all faculties to negotiate and deal with foreign powers and dignitaries, leaving very few of these faculties to the other [federal] powers.”52 Turning his analysis to his own country, Sepúlveda writes:

49

50

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as to terminate, denounce, suspend, modify, amend, withdraw reservations and formulate interpretive declarations regarding treaties, submitting them to the approval of the Senate.” Conversely, Art. 76 of same Constitution, which establishes the exclusive powers of the Senate, reads in Paragraph I: “[T]o analyze the foreign policy conducted by the Federal Executive based on the annual reports that the President of the Republic and the Secretary of Foreign Affairs submit to Congress” and “[T]o approve the international treaties and diplomatic conventions signed by the Federal Executive” Taken from Agenda de Amparo 2009 (Amparo Agenda 2009), ISEF, Mexico (2008) at 58 and 52, respectively (Emphasis added). The approved amendment to Paragraph I of Article 76 was published in the Diario Oficial on December 6, 1977. See Derechos del Pueblo Mexicano. México a Través de sus Constituciones (Rights of the Mexican People. Mexico Through its Constitutions). XLVI Legislatura de la Cámara de Diputados. México, D.F. (1967), Vol. VIII at 789 (hereinafter, Derechos). See the Commentary on Article 76 by Dra. Hernández Martínez, Derechos, Vol. VIII at 789–790. See Felipe Tena Ramírez. Derecho Constitucional Mexicano (Mexican Constitutional Law). México (1998) at 118. César Sepúlveda (Ed.). Manual de Derecho Internacional para Oficiales de la Armada de México (International Law Manual for Mexican Navy Officers). SRE/Marina. México (1981) at 26–27. See also C. Sepúlveda. El Poder Legislativo y los Tratados en México (The Legislative Power and Treaties in Mexico). Porrúa, México (1991) at 133–135.

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In Mexico, where the federal system was followed faithfully, Congress is endowed with some vague attributions only when it legislates to complete a treaty or to vote it down, as may be the case. The Chamber of Deputies (Cámara de Diputados) does not really possess any true faculties on foreign affairs. Only the Senate (el Senado), has some reserved attributes in our constitutional system. Article 76 [of the Political Constitution], amended on December 6, 1977, does not appear to be too clear. ..... The reform does not add much, nor does it clarify the authentic role of this body in international relations. The [use of the] verb “analyze” does not translate into an effective action on the part of the Senate. ..... . . . Notwithstanding that our provision [Art. 76] is similar to the precept in the Constitution of the United States, history does not show that the Senate had ever opposed the attribution of the Executive; rather, it has cooperated more with it, opening public hearings to discuss some treaties that seriously affected the country, such as the 1944 Water Treaty with the United States, and others. The Senate could certainly perform a more dignified, creative and constructive function in relation with international agreements, and its role could be more decisive with respect to international relations.53

Inspired by the Constitution of the United States,54 Article 133 of Mexico’s Constitution prescribes that “the Constitution, the laws of Congress of the Union that emanate therefrom and all treaties that have been made and shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the Supreme Law of the entire Union.”55 Regarding the hierarchy of norms56 (or legislative enactments) at the domestic level, in Mexico – contrary to the position adopted by the United States – treaties approved by the Senate are placed above federal statutes, i.e., on a second plane with respect to the Constitution. The third tier is shared by both

53

54 55

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Ibid. at 27. See also Commentary on Art. 76 of the Constitution by María del Pilar Hernández. Facultades en materia de Política Internacional (Powers in International Affairs). Derechos, supra note 50, Vol. VIII (2000) at 789–791; see also her Commentary on Art. 76 in Constitución Política Comentada y Concordada (Political Constitution Commented and Annotated ). Porrúa/UNAM, Vol. III, México (2003) at 231, 239–240. Article VI, §2, U.S. Constitution. Article 133 of the Political Constitution reads: “This Constitution, the laws of the Congress of the Union that emanate therefrom, and all treaties that have been made and shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the Supreme Law of the entire Union.” Taken from Amparo Agenda 2008, supra note 50 at 107. In Mexico, constitutional law scholars refer to this hierarchy as the “Federal supremacy clause” (Cláusula de supremacía federal ), thus adhering to the U.S. legal terminology (Art. VI, §2, U.S. Constitution). See Commentary on Art. 133 of the Constitution by Alonso Gómez-Robledo Verduzco, Constitución Política, (UNAM, 2003), Vol. IV at 133–138.

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federal and local statutes as established by Mexico’s Supreme Court in 1999,57 when it adopted its more traditional position formulated in 1992, i.e., that federal statutes and international treaties (approved by the Senate) were placed on the same normative level.58 In part, the relatively recent decision by Mexico’s Supreme Court reads: . . . . . [T]his Supreme Court considers that international treaties are placed on a second plane immediately below the Fundamental Law and above the federal and local law. This interpretation of Article 133 of the Constitution derives from [the thesis] that these international engagements are assumed by the Mexican State as a whole and oblige all of the authorities before the international community. This explains why the Constitutional Assembly has empowered the President of the Republic to sign international treaties as Head of State and, in the same manner, the Senate intervenes as representative of the will of the federal entities and, through its ratification, obligates said authorities. Another important aspect to consider regarding this hierarchy of international treaties is that on this matter there is no limitation of jurisdiction between the Federation and the federal entities, namely, it does not matter whether the content of the treaty affects federal or local jurisdiction. By explicit mandate of said Article 133 the President of the Republic and the Senate can obligate the Mexican State on any given matter, independently that for other effects this may fall under the jurisdiction of the federal entities [pursuant to Article 124 of the Federal Constitution]. . . . [T]his Tribunal en banc considers that it is time to abandon [its preceding thesis] and adopt the criterion that considers the superior hierarchy of treaties even in front of federal law.59

Turning now to the 1982 U.N. Convention on the Law of the Sea, concluded at Montego Bay, Jamaica, on December 10, 1982, Mexico became the third country to ratify it, after Fiji and Zaire.60 57

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Tratados Internacionales. Se ubican jerárquicamente por encima de las leyes federales y en segundo plano respecto de la Constitución Federal (International Treaties. They are placed hierarchically above the federal laws and on a second plane with respect to the Federal Constitution). Novena Epoca, Pleno. Semanario Judicial de la Federación y su Gaceta ( Judicial Weekly of the Federation and its Gazette). Vol. X, November 1999. Tesis P. LXXVII/99, at 46. In a previous decision, Mexico’s Supreme Court established that “Leyes Federales y Tratados Internacionales tienen la misma jerarquía” (Federal laws and international treaties have the same legal hierarchy). Tesis P. C/92 published in the Gaceta del Semanario Judicial de la Federación, No. 60, Octava Epoca, Diciembre de 1992 at 27. Ibid. (Emphasis added). The Mexican Senate approved the Convention on December 29, 1982; this approval was published in the Diario Oficial de la Federación on February 18, 1983; the ratification became effective on March 18, 1983. At the international level, the Convention entered into force on November 16, 1994; and for Mexico on November 16, 1994. The corresponding promulgation was published in the Diario Oficial on January 1, 1983. On December 6, 2002 the Government of Mexico formulated the Declaration for the Election of Procedure to Article 287 of Part XV of the Convention, as well as the declaration to the exceptions contained in Article 298 of same Part XV. Mexico is a party to the Agreement relative to the Implementation of

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3. The FOA and the Opinion of the Foreign Affairs Secretary For Mexico, the successful conclusion of UNCLOS III and the signing and ratification by Mexico of the 1982 Convention on the Law of the Sea represented the culmination of a multilateral agreement that codified and contributed to the progressive development of the public order of the oceans. From a Mexican perspective, the enactment of the Federal Oceans Act (Ley Federal del Mar or FOA) was an opportunity to codify and harmonize the partial and dispersed domestic legislation that Mexico originally proposed in its first Federal Constitution of 1824 and, at the same time, adjust its domestic marine legal regime to the provisions of the recently completed 1982 U.N. Convention on the Law of the Sea.61 An Advisory Commission formed by ten federal agencies directly involved with marine questions and coordinated by the Secretariat of Foreign Affairs (SRE)62 prepared the FOA. Secretary Bernardo Sepúlveda Amor, Secretary of Foreign Affairs, emphasized that the FOA was important because of these reasons: first, Mexico saw UNCLOS III as a unique opportunity to contribute to the codification and progressive development of law “be oriented towards a more just distribution of the marine riches among all countries. This quest represented a step forward in reaching a new global, legal and economic order.”63 Second, Mexico recognized and supported the claims advanced by developing countries directed at exercising their sovereign rights over their natural resources, “so these can be used for the welfare of their people.” And third, Mexico considered itself to have been a determining actor (Protagonista importante) in the formulation of the new law of the sea and in the establishment of the 200 n.m. exclusive economic zone.64 The legal accomplishments that resulted from the Federal Oceans Act are: 1. The regulation of innocent passage (Art. 29); 2. The exercise of national jurisdiction over artificial islands, installations and marine structures (Arts. 14–16);

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Part XI of the Convention, adopted in New York City on July 28, 1994, currently in force. Information provided by Dirección de Tratados III, Consultoría Jurídica, SRE. Ley Federal del Mar (Federal Oceans Act). Presentation by B. Sepúlveda. SRE (1986). This Act was published in the Diario Oficial on January 8, 1986 and entered into force the following day (hereinafter Ley del Mar), supra note 1. The ten participating agencies were: 1) Secretariat of the Interior (Gobernación); 2) Programming and Budget (Programación y Presupuesto); 3) Public Education (Educación Pública); 4) Navy (Secretaría de Marina); 5) Communications and Transport (Comunicaciones y Transporte); 6) Energy, Mines and Parastate Industries (Minas, Energía e Industria Paraestatal ); 7) Tourism (Turismo); 8) Fishing (Pesca); and 10) National Science and Technology Council (Consejo Nacional de Ciencia y Tecnología). Ibid., Presentación at 4. Sepúlveda’s Presentation, Ley del Mar, supra note 1 at 3. Ibid. at 3–4.

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3. The utilization of minerals dissolved in marine waters, hydraulic or thermic energy that may derived from marine currents and winds, as well as solar energy (Arts. 6, para. IV; 46, para. I); 4. The traditional utilization of living resources of the sea and of submarine hydrocarbons (Arts. 6, paras. II and III; 46, 56 and 57); 5. The development of coastal zones and aquaculture projects (Maricultura); 6. The establishment of marine national parks and recreational activities in these zones; and 7. The establishment of fishing communities.65 When Mexico established a 200 nautical mile zone situated outside the territorial sea in early 1976,66 that country embraced what has been described as a “central piece” of the new law of the sea.67 With the enactment of FOA ten years later – in the words of the Secretary of Foreign Affairs – “Mexico became the first country to fully adjust (Adecuar) its domestic law with the new international [legal] framework on this matter,” present in the 1982 Law of the Sea Convention.68 In his statement in support of this legislative initiative, President De la Madrid contrasted the relationship between the 1982 Convention and the FOA. He indicated, for example, that since the norms in the Convention tend to be of a general nature, [I]t is the practice of States that will give those norms their real content. In practice, the guidelines will have to be followed on the basis of national legislation adopted by each country and this practice will constitute the true application of the law of the sea.69 65 66

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Id. at 4. The establishment of this zone was effectuated through an amendment to Article 27 of the Political Constitution which added a new paragraph eight to said provision. The corresponding presidential decree was published in the Diario Oficial of February 6, 1976; the Mexican EEZ entered into force on June 6, 1976. The United States was the only country that formally opposed the establishment of this zone by Mexico. This seems to be a common characterization of this ocean space among Mexican law of the sea specialists. See, for example, Jorge Castañeda. El Nuevo Derecho del Mar (The New Law of the Sea), Seis Años de Relaciones Internacionales de México (Six Years of Mexico’s International Relations); Alberto Székely Sánchez, Mexico y el Derecho Internacional del Mar (Mexico and the International Law of the Sea). UNAM (1979) at 150; and J.A. Vargas. La Zona Económica Exclusiva (The Exclusive economic zone), Introduction, supra note 27 at 11. This characterization emanates from the concept of “philosophy of development” originated in light of the severe economic problems affecting poor countries and the need to formulate a new international economic order (NIEO). Ley del Mar, supra note 1 at 4. See Exposición de Motivos, Ibid. at 8. See also Jorge A. Vargas. Mexico’s Legal Regime over Its Marine Spaces: A Proposal for the Delimitation of the Continental Shelf in the Deepest Part of

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He also asserted that because of the general nature of the 1982 Convention, its provisions “cannot be carried out automatically, but rather require legislation at the national level for their full application.”70 Finally, he recognized that a number of articles in the Convention “forced the States to legislate internally to make them effective, to fulfill them, and above all, to use the rights derived therefrom effectively against third parties.”71 Regarding the substantive aspects of the Convention, the President reiterated Mexico’s policy that most of the provisions, with a few exceptions, such as seabed area, had already achieved an international consensus that “they constituted evidence of the legal will of the international community.”72 As a result, no alteration was acceptable regarding the rights and obligations attributed to States during the process of negotiation.73 B. General Overview of the Federal Oceans Act The FOA was designed to accomplish two fundamental objectives: first, to codify, update and systematize Mexico’s numerous separate statutes regulating different uses and activities in the marine environment;74 and second, to be in compliance with the 1982 U.N. Convention on the Law of the Sea. 1. To Codify, Update and Systematize At the domestic level the first objective posed a challenge. Historically, Mexico had enacted individual pieces of legislation addressing diverse questions pertaining to uses and resources of the marine environment and its environmental protection. There was neither a common national policy uniformly providing the legal substance for these enactments, nor a general coordination regarding the format and substance of these federal statutes, most of them derived from pertinent articles of Mexico’s 1917 Constitution. In particular, Articles 27, 42 and 48 detail the physical and legal components that enunciate Mexico’s Anational territory.”75 Article 27 of the Constitution grants to the Mexican nation the direct ownership of any natural resources, such as minerals, deposits, or other substances

70 71 72 73 74 75

the Gulf of Mexico, 26 Inter-American Law Review (1994–95) at 194. The “Exposición de Motivos,” or Rationale, was reproduced in English at 25 International Legal Materials 900 (1986). Ibid. Id. Id. Id. at 58. Ibid. at 54. For a discussion of Articles 27, 42 and 48 of Mexico’s Political Constitution, see Chapter 1, Section B: Mexico’s National Territory.

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located in the continental land mass, the continental shelf, and islands.76 Specific attention is given to oil, natural gas and any other hydrocarbons. The same article provides that “the waters of the territorial seas” and the “internal marine waters . . .”77 are the property of the [Mexican] Nation.78 Without adhering to the notion of Ius imperium but supporting in contrast the antiquated concept of Ius dominium used by Article 27 of Mexico’s Constitution, the new FOA provides that in its marine spaces, “the Nation shall exercise the powers, rights, jurisdictions and the authority (competencias)” established by the FOA “in accordance with the [Federal] Constitution and international law.”79 Article 42 of the Constitution enumerates the physical parts that comprise Mexico’s “national territory,”80 and Article 48 provides that “islands, cays, reefs, the continental shelf, the territorial seas (sic), the internal maritime waters and the air space over the national territory, “will be under the ownership and exclusive control of the Federal government. . . .”81

76

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79 80

81

The pertinent parts of this article read: Article 27. Ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation which has had, and has, the right to transfer said ownership to individuals, thereby constituting private property. .......... The Nation is vested with the direct ownership of all natural resources of the continental shelf and the submarine shelves of the islands; of all minerals or substances, which in veins, ledges, masses or ore pockets, form deposits . . . such as the minerals from which industrial metals and metalloids are extracted; . . . solid mineral fuels; petroleum and all solid, liquid and gaseous hydrocarbons; and the air space situated over the national territory, to the extent and within the terms established by international law. (As amended by decree published in the Diario Oficial of January 20, 1960). The virtual universal name of this marine space is, simply, “internal waters” (Aguas interiores). See Art. 5 of the 1958 Geneva Convention on the Law of the Sea, and Art. 8 of the 1982 Convention. However, Arts. 42 and 48 of the Mexican Constitution use the expression “Internal maritime waters” (i.e. Aguas marítimas interiores) to refer to this space, thus denoting a lack of consistency in the handling of legal marine terminology. See Arts. 42 and 45 of Mexico’s Political Constitution, Chapter One, Section A: Mexico’s Constitutional Provisions. For a critical appraisal of the traditional use of the notion of “property” to claim ownership over these resources by the government of Mexico, see Bernardo Sepúlveda, Derecho del Mar. Apuntes sobre el Sistema Legal Mexicano. Foro Internacional, Vol. XII, No. 2 (1972) at 237–240. FOA, Art. 4, supra note 2 at 890. According to Art. 42, Mexico’s “national territory” is comprised of (1) 31 States and the Federal District (Mexico City); (2) islands, “including reefs and cays in the adjacent seas;” (3) the islands Guadalupe and Revillagigedo in the Pacific Ocean; (4) the continental shelf appurtenant both to the continental land mass and to islands, cays and reefs; (5) the waters of its 12-nautical mile territorial sea and (6) the superjacent air space, see Mexico’s Political Constitution, Chap. One, Section A: Mexico’s Constitutional Provisions. Political Constitution, Chap. One, Section A: Mexico’s Constitutional Provisions, Ibid.

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These articles provided the constitutional foundation for numerous federal statutes regulating fishing and aquaculture,82 oil and natural gas,83 maritime transportation,84 ports,85 tourism,86 marine environmental protection,87 etc. Enacted and amended at different times, these statutes lacked uniformity and coordination. Thus, the FOA served as the legal instrument used to introduce order and systematization in this area by means of the enactment of a single and comprehensive legal corpus, in what was considered a much needed codification effort. In his initiative, de la Madrid referred to the FOA as a “Ley marco,” 88 i.e., a piece of legislation giving structure and order to the different and varied substantive legal enactments in marine affairs. 2. To Comply with the 1982 LOS Convention By adhering to the 1982 U.N. Convention on the Law of the Sea,89 through the enactment of the FOA, Mexico proceeded to modernize and adjust its domestic legislation putting it in symmetry with the content of that multilateral instrument.90 Pursuant to Art. 133 of the Mexican Constitution, treaties in conformity with said Constitution, entered into by the President of the Republic and with the approval of the Senate, become the “Supreme law throughout the Union.”91 Therefore, the FOA was the logical consequence derived from Mexico’s becoming a party to the 1982 Convention. In his “Exposición de Motivos” De la Madrid reasoned that “the only means” for achieving the objective of providing his country “with the essential legal authority to exercise its rights in the marine environment mainly against foreign interests” was the adoption of domestic legislation incorporating “the pertinent

82

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85 86

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88 89 90 91

Ley Federal de Pesca (Fishing Act published in the D.O. of June 25, 1992] and its Regulations in D.O. of July 21, 1992. See also Jorge A. Vargas. Mexico’s Fishing Law: Translating the Transition, 14 Transnational Lawyer (2001) at 1–71. See Ley Reglamentaria del Artículo 27 Constitucional sobre Petróleo (Reglamentary Oil Act derived from Art. 27 of the Constitution), published in the D.O. of November 29, 1958, as amended. See Ley de Vías Generales de Comunicación (Federal Act on General Means of Communication). D.O. of February 19, 1940, as amended. See Ley Federal de Puertos (Federal Ports Act), D.O. of July 19, 1993, as amended. See Ley Federal de Turismo (Federal Tourism Act), D.O. of December 31, 1992, as amended. See Ley General del Equilibrio Ecológico y Protección al Ambiente (General Act on Ecological Balance and Environmental Protection), D.O. of January 28, 1988 (as amended). See Exposición de Motivos, supra note 1 at 6. See supra note 66 and the accompanying text. See supra note 2. Political Constitución, Art. 133. This article was inspired by Article VI, Section 2, of the U.S. Constitution.

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principles of the new legal order into national positive law.”92 The “Exposición de Motivos” (Rationale) made clear that the FOA was formulated giving attention to the norms and provisions of the 1982 Convention, which served as legal directives or guiding principles,93 adding that a number of the Convention’s provisions were reproduced, verbatim, in the text of the FOA.94 C. The FOA’s Innovative Features From an administrative viewpoint, the FOA is categorized as a regulatory statute (i.e. Ley reglamentaria) serving to detail aspects contained in Art. 27 of the Constitution.95 This new statute is ranked as “public order provisions.”96 The FOA consists of 65 articles and is divided into two parts.97 The FOA introduced the following nine innovations in Mexico’s legal regime applicable to the oceans: 1. The Right of innocent passage is regulated for the first time in the history of Mexico.98 This regulation is considered important because Article 189 of the Federal Act of the General Means of Communication (i.e. Ley de Vías Generales de Comunicación, originally enacted in 1931), incorrectly recognized a full freedom of navigation in favor of foreign vessels in Mexico’s territorial sea.99 The FOA corrected this mistake. 2. The new statute establishes norms for Mexico to exercise its jurisdiction over artificial islands, installations and marine structures.100 3. In addition to regulating the traditional utilization of renewable and nonrenewable marine resources, the new legislation established norms to control certain non-traditional uses, such as the utilization of minerals contained in the waters, generation of hydroelectric power and thermal energy, production of wind power and solar energy, coastal development, aquaculture, marine parks, etc.101 92 93 94 95

96 97

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Legal rationale, 25 I.L.M. (1986) at 903–904. The expression in Spanish is “Normas rectoras de la Convención”, Id. Id. As provided in Art. 1 of the FOA, this new federal statute details the legal content of paragraphs 4, 5, 6 and 8 of Art. 27 of the Mexican Constitution. See 25 I.L.M. (1986) at 889–890. FOA, Art. 2, Id. at 890. Part One (Título Primero) contains general provisions (Disposiciones Generales) and Part Two (Título Segundo) applies to the Mexican Marine Zones (Zonas Marítimas Mexicanas). In part, Mexico’s detailed regime of the Right of innocent passage derives from the progress accomplished on this subject by UNCLOS III. See Arts. 17–26 of the 1982 Convention. This mistake is attributable to the unfamiliarity of the Mexican Congress with the law of the sea terminology. See Székely, supra note 12 at 26. FOA, Arts. 14–17. See Arts. 56 (1)(b)(i) and 60 of the 1982 Convention. FOA, Art. 6, para. IV. See Art. 56 (1)(a) of the 1982 Convention.

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4. Internal waters are treated now under a separate and distinct legal regime. Prior to 1986, and as a consequence of a rather poor legislative technique, internal waters had been legally assimilated to the territorial sea. Evidently, this lack of distinction confused the question of the right of innocent passage (or lack of it) in the internal waters.102 5. The Contiguous Zone, an oceanic area under Mexico’s national control with a 12 nautical mile width, was created for the first time by the FOA. In 1969, pursuant to the General Act of National Assets (i.e., Ley General de Bienes Nacionales), that country established a 3 nautical mile contiguous zone adjacent to its then 9 nautical mile territorial sea; however, when Mexico extended its territorial sea to 12 nautical miles later that year by amending Art. 18, para. II of that Act, the contiguous zone simply disappeared from a legal viewpoint.103 In accordance with Article 33, para. 2 of the 1982 LOS Convention, Mexico’s contiguous zone today has a width of 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. The interior boundary of the Contiguous Zone coincides with the external boundary of Mexico’s 12-nautical-mile territorial sea and extends out for another 12-nautical miles (FOA, Article 44).104 6. A special legal regime is created for Mexico’s 200 nautical mile Exclusive Economic Zone.105 The legislative bill notes that Mexico has rich deposits of polymetallic nodules within its EEZ, especially in the Gulf of California and around the Revillagigedo and Clarión islands.106 7. A special but only provision addresses the protection and preservation of the marine environment.107 At the domestic level, the environmental protection of Mexico’s marine spaces is regulated by the General Act of Ecological Balance and Environmental Protection,108 the General Health Act109 and the Federal Water Act.110 Internationally, Mexico is a party to seven multilateral conventions against marine

102 103

104 105

106 107 108

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FOA, Arts. 34–41. General Act of National Assets, Art. 18, para. II; amended by presidential decree of December 12, 1969 (D.O. of December 26, 1969). FOA, Arts. 42–45; and, Art. 33, para. 2, 1982 Convention. FOA, Arts. 46–56. This is the lengthiest section of the FOA, closely parallelling Arts. 55–62 of the 1982 Convention. Exposición de Motivos, supra note 1 at 15. FOA, Art. 21. General Act on Ecological Balance, supra note 87. Arts. 79–87 of this federal statute regulate the protection of wild flora and fauna, and aquatic species, and Arts. 117–133 the prevention and control of aquatic ecosystems. General Health Act (Ley General de Salud), D.O. of February 7, 1984. Federal Water Act (Ley Federal de Aguas), D.O. of December 1, 1992.

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pollution.111 Bilaterally, an agreement on cooperation with the United States to prevent pollution by hydrocarbons or other hazardous substances remains in force since 1981.112 8. The definition of the outer boundary of the continental shelf constitutes one of the most difficult technical problems associated with the law of the sea. It is not unexpected, therefore, that this question had not been addressed in the domestic legislation of that country prior to 1986. In this respect, the FOA now prescribes: ARTICLE 62. The Mexican continental shelf and the insular shelves comprise the seabed and subsoil of the submarine areas that extend beyond the territorial sea and throughout the natural prolongation of its national territory to the outer edge of the continental margin (Margen Continental ), or to a distance of 200 nautical miles measured from the baselines from which the breadth of the territorial sea is measured in the cases where the outer edge (Borde exterior del margen continental ) of the continental margin does not extend up to that distance, in accordance with international law. This definition includes the shelf of islands, cays and reefs that form a part of the national territory.113 Article 63 adds that “[I]slands have an insular continental shelf but rocks which cannot sustain human habitation or economic life of their own, do not.114

9. Finally, the 1986 statute addresses the question of the conduct of marine scientific research in the areas subject to Mexico’s sovereign rights or under its jurisdiction. In the legislative bill, it was pointed out that marine scientific research represented a lacuna in Mexico’s legislation, recognizing that “the rights conferred upon by UNCLOS III to the coastal State on this subject [marine scientific research] had only been applied in a mere administrative manner by 111

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These conventions are: 1) The London Convention for the Prevention of Marine Pollution by Hydrocarbons, D.O. of 20 July and 15 October 1956; 2) Amendments to the London Convention, D.O. of March 9, 1977; 3) Brussels Convention on High Seas Intervention in Case of Accidents caused by Pollution by Hydrocarbons, D.O. 26 May 1976; 4) Prevention of Marine Pollution by Dumping of Waste and Other Matters, D.O. of July 16, 1975; 5) 1973 Protocol to Intervention in the High Seas, D.O. of March 30, 1980 and August 1, 1980; 6) 1978 MARPOL Protocol, D.O. of July 8, 1992; and, 7) Cartagena Convention for the Protection of the Marine Environment in the Caribbean Region, D.O. of April 25, 1988. See México: Relación de Tratados en Vigor. SRE, Tlatelolco, México (2008) at XXIV–XXV. Agreement of Cooperation between the United States and Mexico regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and Other Hazardous Substances, with Annexes. Signed at Mexico City on July 24, 1980; entered into force March 30, 1981 (D.O. of May 18, 1981 and August 5, 1981. Id. at 46). 32 UST 5899, TIAS 10021; 1241 UNTS 225. FOA, Art. 62. Mexico already filed a claim with the commission on the limits of the Continental Shelf for the recognition of a continental shelf in the central portion of the Gulf of Mexico that goes beyond 100 nautical miles. FOA, Art. 63; copied from Art. 121, para. 3 of the 1982 Convention.

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the government of his country.”115 Consequently, the bill proposed the idea of a new legal regime in Mexico’s legal system to govern these questions.116 Article 22 of the FOA enumerates seven “principles” that govern the conduct of marine scientific research activities in the Mexican marine spaces, namely: 1. Said activities should be conducted exclusively for peaceful purposes;117 2. They should be undertaken with adequate scientific methods and means, compatible with the FOA and with any other applicable statutes and with international law; 3. The activities in question should not interfere, unjustifiably, with any other legitimate uses of the sea compatible with this Act and other applicable laws and with international law; 4. All the Mexican laws and regulations relating to the protection and preservation of the marine environment should be respected; 5. Said activities shall not constitute a legal foundation for any property claim over any part of the marine environment or its resources; 6. When the activities in question, pursuant to the FOA, are permitted to be undertaken by foreigners, the highest degree of [Mexican] national participation shall be assured; and, 7. In the case of the preceding paragraph, the [Mexican] Nation shall take measures to assure that the results of the marine scientific research shall be provided [to Mexico] and, when requested, that the necessary assistance for the interpretation and evaluation of the results be provided.118 In 1993, the Government of Mexico (SRE and the Navy) put out an official publication containing a set of guidelines foreign scientists and institutions are to observe when applying for a permit to conduct marine scientific research activities in any of Mexico’s marine spaces.119

115

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117

118

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Exposición de Motivos, supra note 1 at 14. In fact, as of today (2011) marine scientific research activities by foreigners in areas under Mexico’s control continue today to be regulated by an administrative procedure controlled by the SRE. Id. (MSR) Mexico is yet to enact legislation to regulate MSR activities by foreign nationals and vessels in the marine spaces controlled by Mexico. These principles maintain some symmetry, mutatis mutandis, with some of those contained in the Declaration of Principles that Regulate the Seabed and Ocean Floor Beyond the Limits of National Jurisdiction; see UNGA 2749 (XXV) of December 17, 1970. FOA, Art. 22 (Translated by the author). See Chapter Five for the conduct of foreign marine scientific research activities offshore Mexico. Normatividad para la Investigación Científica por Extranjeros en Zonas Marinas de Jurisdicción Nacional (Legal Regime for the Conduct of Scientific Research by Foreigners in Marine Zones under [Mexico’s] National Jurisdiction). A joint publication by Secretaría de

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D. FOA’s Ambit of Application 1. General Provisions Under Mexican law, the FOA is formally characterized as a “regulatory enactment” (Ley Reglamentaria) that expands and supplements Article 27 of the Political Constitution (paragraphs 4, 5, 6 and 8), regarding the “Mexican marine zones” (Zonas marinas mexicanas)120 as established in FOA’s Article 1. Accordingly, this federal statute governs in each of the marine zones that form part of Mexico’s national territory and, when applicable, beyond this territory in the marine zones where that country exercises “sovereign rights, jurisdiction and other rights.” Its provisions are of a public order (Art. 2).121 In the “Mexican marine spaces,” the Nation exercises the powers, rights, and jurisdiction established by FOA, “in conformance with the Political Constitution and international law” (Art. 3). Therefore, in said spaces foreign states and their nationals, when engaged in activities therein, shall observe the provisions of the FOA, with the corresponding rights and obligations (Art. 4). The Federal Executive is in charge of applying and enforcing the FOA’s provisions through the competent agencies of Mexico’s federal public administration,122 pursuant to the applicable enactments.

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Relaciones Exteriores and Secretaría de Marina. México (1993). On the subject of Marine Scientific Research, see Chapter Five in this book. In general, Article 27 of the Political Constitution addresses the property regime applicable to lands and waters in Mexico. Paragraph 4 refers to Mexico’s “direct dominium (ownership) over all the natural resources in the continental shelf and the submarine shelf of islands;” paragraph 5 declares the Nation’s “ownership over the territorial seas in the width and terms established by international law;” paragraph 6 establishes that the “Nation’s dominium regarding the exploitation, use and utilization” of all natural resources “is inalienable and not subject to prescription (Inalienable e imprescriptible) to be done only through permits or authorizations granted by the Federal Executive;” and paragraph 8 asserts “the Nation’s sovereign rights and jurisdiction determined by the laws of Congress in the exclusive economic zone.” For a discussion of these paragraphs see Mexico’s Constitutional Provisions in Chapter One. Under Mexican law, the notion of “public order” (Orden público) may be interpreted as “a mechanism through which the State (the legislature in this case or a judge) impedes that certain acts of individuals affect the fundamental interests of the Mexican society.” See Rolando Tamayo Salmoran. Nuevo Diccionario Jurídico Mexicano (New Mexican Legal Dictionary). Porrúa/UNAM, Vol. 3, México (2001) at 2702. In Mexico, the Federal Public Administration Act (Ley Orgánica de la Administración Pública Federal, as amended and published in the D.O. of November 28, 2008) assigns and distributes the functions and powers of each and every agency of the Federal government, formed by i) the Secretariats of State (Secretarías de Estado, that compose the President’s cabinet); ii) the Administrative Departments; and, iii) the Legal Counsel’s Office.

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According to the FOA, “the sovereignty rights, jurisdictions and other rights in conformance with the Political Constitution, international law and the applicable legislation,” apply to: I. Works, artificial islands, installations and marine structures; II. The applicable regime to living marine resources, including their conservation and utilization; III. The legal regime applicable to non-living marine resources, including their conservation and utilization; IV. The economic utilization of the sea, including the utilization of minerals dissolved in its waters; the production of electrical or thermic energy derived from the waters, currents and winds; the capturing of solar energy in the sea; the development of the coastal zone; aquaculture (Maricultura); the establishment of national marine parks; the promotion of [marine] recreational activities and tourism and the establishment of fishing communities; V. The protection and preservation of the marine environment, including the prevention of marine pollution (Contaminación); and VI. The conduct of marine scientific research activities.123 The FOA explicitly empowers the Federal Executive Power to negotiate agreements with foreign neighboring states for the delimitation of the dividing lines (Delimitación de las líneas divisorias) between the Mexican marine zones and the corresponding adjacent zones under the national marine jurisdiction of each State, in those cases where there is an overlapping between said zones, in accordance with international law (Art. 8). The Mexican marine zones shall not be extended beyond a median line, whose points are equidistant to the closest points of the baselines from which the breadth of the territorial sea of a contiguous state is measured, save when there is an agreement to the contrary with said State. The Federal Executive shall not recognize the unilateral extension of the marine zones of a neighboring state beyond the median line, whose points are equidistant to the closest points of the baselines from which breadth of the Mexican territorial sea is measured. In these cases, the Federal Executive shall endeavor to negotiate with the neighboring State in question in order to agree on a mutually acceptable solution (Art. 9). The FOA establishes that any enjoyment of rights that this Act prescribes in favor of foreign vessels, depends upon the existence of reciprocity with the corresponding flag State, in favor of the national vessels and provided that it is 123

FOA, Art. 6. This is the only reference to marine scientific research in the entire FOA.

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in accordance with the Political Constitution of Mexico and with international law (Article 10). The Federal Executive Power shall be assured that the maritime relations with other States shall take place under the principle of international reciprocity that shall be applied both to the Mexican marine zones and to those established by those States, regarding any activity said States or their nationals undertake in strict compliance with international law (Art. 11). Article 12 of the FOA reiterates that Mexico’s recognition to the delimitation acts of marine zones by other States shall be done in strict compliance (Con estricto apego) to the norms of international law and based on reciprocity (Art. 12). Finally, the FOA prescribes that the Federal Executive is to be assured that the competent national authorities comply with the applicable international norms that recognize the right of landlocked States to flag a vessel (Para enarbolar un pabellón). 2. Maritime Installations In accordance with the 1982 Convention,124 the FOA establishes that “artificial islands, installations and structures” do not have a territorial sea of their own and their presence does not affect the delimitation of the territorial sea, the exclusive economic zone or the continental shelf (Art. 14). Regarding these “maritime installations,” the FOA declares Mexico’s “exclusive jurisdiction” over them, including the exercise of jurisdiction on customs, tax, sanitary, safety, and immigration matters (Art. 15). The FOA recognizes Mexico’s “exclusive right, in the Mexican marine zones, to construct, and to authorize and regulate the construction, operation and utilization of artificial islands, installations and structures in accordance with the provisions of the FOA, the General Act of National Assets, the Public Works Act and other applicable provisions in force.” (Art. 16). Finally, the FOA adds that “the construction, installation, conservation, maintenance, reparation and demolition of the immovable assets for purposes of exploration, localization, drilling, extraction and development of marine resources, or destined to a public service125 or to the common use126 in the Mexican marine zones shall be done observing the legal provisions in force on these matters.” (Art. 17). 124 125

126

See Articles 60, para. 8, and 80, of the 1982 Convention. Under Mexican law, for “public service” is understood “a variety of personal and material elements coordinated by the public administration and destined to take care of a social need of a general character that cannot be provided by individuals.” See Rafael de Pina. Diccionario de Derecho (Law Dictionary). Porrúa, México (2006) at 453–454. According to Article 7 of the General Act of National Assets (Ley General de Bienes Nacionales, D.O. of May 20, 2004), “Common use assets” (Bienes de uso común), or assets devoted to a public use, consist of the following: 1) the air space; 2) the internal marine waters; 3) the

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3. Resources and Economic Utilization of the Sea The FOA provisions must be interpreted and applied in strict compliance with the fishing legislation127 regarding the conservation and utilization of the living resources in the Mexican marine zone by nationals and foreigners (Art. 18). The exploration, exploitation, benefit, utilization, refinement, transport, storage, distribution, and sale of hydrocarbons and submarine minerals in the Mexican marine zones is governed by the Reglamentary Acts (Leyes reglamentarias) of Article 27 of the Constitution on Oil Matters128 and on Mining Matters, and their respective regulations, and the applicable provisions of the FOA (Art. 19). Any activity that implies the economic exploitation, use, and utilization of the Mexican marine zones (different than those in Articles 18 and 19 of the FOA), shall be governed by the legislative enactments pertaining to paragraphs 4, 5, and 6 of Article 27 of the Constitution, by the FOA and by any other applicable laws and regulations (Art. 20). 4. Protection and Preservation of the Marine Environment and Marine Scientific Research Principles The FOA prescribes that the protection and preservation of the marine environment within the Mexican marine zones is to be governed by the General Act of Ecological Balance and Protection of the Environment,129 the General Health Act, the Federal Water Act, and their respective regulations, and other pertinent enactments (Article 21).130

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territorial sea; 4) the ocean beaches; 5) the federal maritime land zone; 6) ports and bays; 7) jetties, piers and “malecones;” 8) running waters, lakes, lagoons and estuaries; 9) banks along rivers; 10) dams and canals; 11) roads, highways, bridges, and railroads; 12) archaeological monuments; 13) public squares and parks; and 14) any other defined as such by laws regulating national assets. Fishing and Sustainable Aquaculture Act (Ley de Pesca y Acuacultura Sustentables, D.O. of July 24, 2007). Reglamentary Act of Art. 27 of the Constitution on Oil Matters (Ley Reglamentaria del Artículo 27 Constitucional en el Ramo del Petróleo, as recently amended and published in the D.O. of November 28, 2008). General Act of Ecological Balance and Protection of the Environment (Ley General de Equilibrio Ecológico y la Protección del Ambiente) published in the D.O. of May 16, 2008. Article 22 of the FOA enumerates seven principles (similar to those contained in UNGA 2749 (XXV) regarding the Declaration of Principles that Regulate the Seabed and Ocean Floor beyond the Limits of National Jurisdiction of December 17, 1970) that govern the conduct of marine scientific research activities in the Mexican marine spaces. For a discussion of the Mexican principles, see Chapter Five on Marine Scientific Research.

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3. Mexico’s Marine Zones The FOA’s Article 3 establishes the following five specific “Mexican marine zones,” (Zonas marinas mexicanas)131 namely: a) Territorial Sea; b) Internal Marine Waters; c) Contiguous Zone; d) Exclusive Economic Zone; and e) Continental Shelf and Insular Shelves. The legal nature, scope, mode of delimitation, and dimensions of each of these oceanic spaces were taken virtually verbatim from the corresponding articles of the 1982 Convention. The commentary that follows underlines only some of the distinct features added by Mexico in relation with these spaces. A. Internal Waters Both the 1958 Geneva Convention on the Territorial Sea and the 1982 Convention recognize that the sovereignty of the coastal State extends over its land territory and its internal waters (Art. 2.1, 1982 Convention). From a Mexican law perspective, as prescribed by Articles 27 and 42 of its Constitution, the internal waters form a part of that country’s territory and are subject to its sole and exclusive sovereignty. Technically, under the international law of the sea, internal waters are those on the landward side of the baseline of the territorial sea, and there is no right of innocent passage in those waters (except in certain cases involving the application of straight baselines).132 Székely defines the “Mexican internal waters” as “those situated within the territorial borders and those baselines from which the width of the territorial sea is measured.” These waters comprise both marine waters (ports, internal bays and those behind the straight baselines) as well as non-marine waters (lakes and validated rivers, as well as the portion that corresponds to the slate of international rivers and lakes). In said waters the State exercises the same sovereignty it enjoys in its territory. This means that in these internal waters there is no innocent passage as in the territorial sea. According to this author, the Mexican internal waters have been delimited, first, through international bilateral treaties and, second, by means of Mexico’s domestic legislation, that has prescribed

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FOA, Art. 3. Instead of adhering to the traditional enumeration of the State’s marine spaces following a geographical progression from the coastal area into deeper waters (namely, from the internal waters, territorial sea, contiguous zone, etc.) Mexico’s FOA enumerates its marine spaces starting with the Territorial Sea. The final paragraph of this article adds: (f ) Any other [Mexican marine zone] permitted by international law. For discussion purposes in this chapter, FOA’s marine spaces order was altered, adhering to the traditional order and starting with internal waters. See Art. 8 of the 1982 Convention. For a legal definition of these waters, see Székely, supra note 12, Chapter IV: Aguas Interiores Mexicanas at 111, 111–120. See also Jorge A. Vargas. “Aguas Interiores,” Terminología sobre Derecho del Mar, Ceestem, Mexico 1979 at 36–37.

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the baselines from which the territorial sea should be measured along Mexico’s coastlines.133 The FOA recognizes that “[t]he Nation exercises sovereignty in the areas of the sea named Internal Marine Waters (Aguas Marinas Interiores), comprised between the national coastlines, both continental and insular, and the Mexican Territorial Sea”134 and that Mexico’s sovereignty “extends to the air space situated over said internal waters, the seabed and subsoil of said waters.”135 Article 36 of the FOA reads: Article 36. Internal marine waters are those between the coast and the baselines, whether normal or straight, from which the territorial sea is measured, in accordance with the pertinent provisions of the Regulations of this Act, which include: I. II. III. IV. V.

The northern part of the Gulf of California; The inland bays; The ports; The inland reefs; and Waters in the mouths of rivers or deltas, lagoons and estuaries connected permanently or intermittently with the sea.136

For the purpose of delimiting this marine space, the low-water tide along the coast (línea de bajamar) is defined as “the line where the ebb and flow of marine waters along the continental and insular coasts of the [N]ation is the greatest at a given moment.”137 When enacted, the FOA Regulations are expected to contain detailed guidelines pertaining to the delimitation of internal waters or of any other “Mexican marine zone.”138 133

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Székely asserts that the practice of Mexico regarding the definition of its internal waters (a) has been “respectful of positive international law; (b) It has incorporated the international customary rule that the normal baseline to measure the width of the territorial sea is the low water mark in both continental and insular coastlines; (c) that Mexico adopted the exceptional system of the straight baseline system, applied only to the Gulf of California (However, in this regard, Mexico, for unexplained reasons, continues to be at fault for not submitting the corresponding nautical chart of these straight baselines to the United Nations, nor has it published them in Mexico’s Diario Oficial ). Id. At 111–112. FOA, Arts. 34 and 35. In this regard, Article 8 of the 1982 Convention refers to “Internal waters” and provides that “waters on the landward side of the baseline of the territorial sea form part of the internal waters of the state.” (Para. I). FOA, Art. 35. FOA, Art. 36. See Articles 9, 10 and 11 of the 1982 Convention. FOA, Arts. 37–38. In Spanish, Art. 38 reads: Para los efectos del límite interior de las Aguas Marítimas Interiores, la línea de bajamar es la línea de mayor flujo y reflujo donde llegan las aguas marinas en un momento dado a lo largo de las costas continentales o insulares de la Nación. As indicated earlier (see supra note 104), notwithstanding that the FOA was enacted over two decades ago (D.O. of January 8, 1986), its implementing regulations (Reglamento) have not been promulgated by the Federal Executive as of this date (2011).

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1. Application of the Straight Baseline System to the Gulf of California In the 1960’s and early 70’s, international law specialists in Mexico generated national and international attention by claiming that the Gulf of California should be considered as a “national sea,”139 a marine space subject to that country’s exclusive sovereignty.140 Several suggestions were formulated to accomplish such an objective: first, a claim based on historical reasons to consider the Gulf as a “historical bay;”141 and, second, the use and application of the straight baseline system to demarcate the territorial sea in the interior of that Gulf in conformance with the U.N. Geneva Convention on the Territorial Sea of 1958.142 However, none of these rationales provided a valid legal basis for Mexico to lay claim the entirety of the Gulf of California as a “national sea.”143 Confronted with this dilemma, Mexico decided to follow a two-step approach to reach its nationalistic objective based on conventional and customary international law. First, to use the straight baseline method to “delimit” its territorial sea in the interior of the Gulf of California by means of a special decree enacted in 1968.144 Second, Mexico changed the legal status of the high seas portion 139

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See César Sepúlveda. For a Sovereignty without Limits (Por una Soberanía sin Límites). Técnica Pesquera, March 1974 at 18–24; Ricardo Méndez Silva. El Mar de Cortés: Bahía Vital. Boletin del Centro de Relaciones Internacionales. UNAM, Mayo (1972) at 74–83; and José Eusebio Salgado and Antonio Murguía Rosete. La Bahía Histórica de Baja California (The Historical Bay of Baja California). México (1976). See Maria Luisa Garza. El Golfo de California, Mar Nacional (The Gulf of California, National Sea). UNAM (1976). The government of Mexico rejected this thesis for lack of legal basis. This official position did not discourage the political opposition party PAN (Partido Acción Nacional ) who unsuccessfully introduced to Congress a legislative bill that pretended to “Mexicanize” the Gulf of California by drawing a straight baseline at the mouth of this marine space. See Székely, supra note 12 at 113. Article 4 of the 1958 LOS Convention established the straight baseline system for the delimitation of the territorial sea; paragraph I of this provision reads: 1. In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. Mexico was a party to this 1958 Convention. Approved by the Senate on December 17, 1965 per decree published in the D.O. of January 5, 1966. Promulgated by the Executive on August 17, 1966; the instrument of adhesion was deposited with the U.N. Secretary General on August 2, 1966 as per decree published in the D.O. of October 5, 1966. Historically, the Gulf of California has been navigated and visited by foreign vessels in the past, especially by fishing boats from the United States and Japan. However, the limited access to these secluded waters by foreigners and the fact the Mexican territory totally surround that gulf (thus intensifying Mexico’s unimpeded control and authority over this rich and unique marine space) led that country to assert its exclusivity claim over this gulf. See Decree that delimits the Mexican territorial sea in the interior of the Gulf of California (Decreto por el que se delimita el Mar Territorial Mexicano en el interior del Golfo de California),

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in the southern part of that gulf (located outside the territorial sea established by the straight baseline method), converting them into waters under the 200 nautical mile exclusive economic zone145 Mexico established by adding a new paragraph eight to Article 27 of its Political Constitution in 1976.146 The legality of the straight baseline method was first recognized by the International Court of Justice (ICJ) in the judgment of the Anglo-Norwegian Fisheries case in 1951.147 For Mexico, the straight baseline method was ideally suited to be applied to the interior of the Gulf of California as the first step to incorporate the northern portion of that gulf, north of Isla San Esteban, as internal waters based on the 1968 decree.148 The 1968 decree was technically backed by a careful in situ maritime survey of the physical and geological conditions in the interior of the Gulf of California conducted by an Inter-Secretarial Commission formed by the representatives of these Secretariats (federal agencies): 1) Agriculture and Livestock (Secretaría de Agricultura y Ganadería or SAG); 2) Foreign Affairs (Relaciones Exteriores or SRE); 3) the Mexican Navy (Marina or SM); and 4) National Defense (Defensa Nacional ). The Commission produced a report that recommended how the territorial sea should be delimited within said gulf by applying the straight baseline method.149

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published in the D.O. of August 30, 1968; and Fé de Erratas (Corrigendum) in D.O. of October 5, 1968. For a chart depicting Mexico’s straight baselines, see “Mexico: Straight Baselines.” Office of the Geographer, U.S. Department of State. Bureau of Intelligence and Research, Washington, D.C., No. 4, January 24, 1970. See also Documents 2.5 and 2.6 at the end of this chapter. The reader should keep in mind that the widest line across the Gulf of California between the Peninsula of Baja California (in the west) and continental Mexico (in the east), at the entrance of the gulf, only measures 115 nautical miles (212.98 km.), much shorter than the 200 nautical miles of the exclusive economic zone outer boundary. Decree making an addition to Article 27 of the Political Constitution of the United Mexican States, to establish an exclusive economic zone situated outside the territorial sea (Decreto por el que se adiciona el Artículo 27 de la Constitución Política de los Estados Unidos Mexicanos, para establecer una Zona Económica Exclusiva situada fuera del mar territorial ), published in the D.O. of February 6, 1976. Coinciding with the publication of this decree, the Mexican Navy published a chart establishing the outer boundary of the EEZ: Decreto que Fija el Límite Exterior de la ZEE de México, D.O. of June 7, 1976 (entering into force on July 31, 1976). Year of the International Law Commission 1956, Vol. II at 265–301, with specific reference to 265–266. See Decree of 1968, supra note 144. For the corresponding map, see Document 2.6 at the end of this chapter. See Bernardo Sepúlveda, Derecho del Mar: Apuntes sobre el Sistema Legal Mexicano, XIII Foro Internacional, COLEF, México (1972) at 247–250; see also Székely, supra note 12 at 112–120.

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Because of its geographical features, the Gulf of California is a unique marine space. It is located in the northwestern part of the Republic of Mexico,150 between the long peninsula of Baja California in the west and the Mexican continental States of Sonora and Sinaloa in the east. It follows a northeasterly direction, with a length of 1,203 kilometers, with widths varying between 119 and 137 miles (or 192 and 212 km., respectively), until it reaches the delta at the mouth of the Colorado River.151 The mouth of this gulf, whether between San José del Cabo and Mazatlán or between Boca de Tule and Altata, measures some 115 nautical miles (or 212.98 km.)152 As a consequence of the drawing of these straight baselines153 (the first and only time Mexico has applied such a method), the marine waters of the northern portion of the gulf were legally defined as “waters on the landward side of the baseline of the territorial sea,” as prescribed by the 1958 Convention, thus resulting in the “closing” of this northern portion of the gulf to third countries. The application of this method resulted in the establishment of a twelve nautical mile territorial sea along the southern part of the eastern coastline of the Baja California peninsula that was continued along the western coastline of the States of Sonora and Sinaloa in continental Mexico, leaving in the central portion of the gulf a high seas area. Approximately on the median part of the gulf is a fringe of islands, among them San Lorenzo, San Esteban, and Turners, all of them south of Isla Angel de la Guarda and Isla Tiburón. These islands seem to connect the Baja California peninsula with the state of Sonora, in the continental part of Mexico, near

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Since the early times when the Spaniards plowed its waters in 1531, the Gulf of California has been known for its varied living marine resources ranging from oysters and pearls, fish, cetaceans, dolphins and tuna, including some endemic species (now endangered) such as “Totoaba” and “Vaquitas.” Recently, scientists from Scripps Institution of Oecanography (SIO) in La Jolla, California, have been fascinated with the discovery of metallogenetic holes, sea vents, very high tides, and ferromanganese nodules in the Mexican gulf. For a comprehensive bibliography, see R. Schwartzlose and J. Hendrickson. Bibliography of the Gulf of California. SIO (1981). Jorge A. Vargas. Golfo de California. Terminología sobre Derecho del Mar (Law of the Sea Terminology). Ceestem, México (1979) at 138. Ibid. This book provides a detailed discussion of the different claims advanced by Mexican specialists as to how to incorporate the Gulf of California under Mexico’s absolute sovereignty When the straight baseline method was applied to the interior of the Gulf of California in 1968, Mexico claimed a 9 n.m. territorial sea based on Article V of the Treaty of Guadalupe Hidalgo with the United States, dated February 2, 1848. Domestically, this width was formalized in 1935 by its inclusion in Article 18 of the General Act of National Assets (Ley General de Bienes Nacionales), D.O. of August 31, 1935. This same Act was later amended in 1969 when Mexico established a 12 n.m. territorial sea (Decreto que Reforma el Primero y Segundo Párrafos de la Fracción II del Art. 18 de la Ley General de Bienes Nacionales, D.O. of December 26, 1969). See Székely, supra note 12 at 62–63.

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Punta de Kino. Basically, Mexico applied the straight baseline method to this part of the gulf utilizing Isla San Esteban and Isla San Pedro Mártir – strategically placed in the middle of the gulf – to connect the segments of the straight baselines running across from the peninsula to the state of Sonora. In essence, the drawing of these straight baselines allowed Mexico to “close” the northern portion of the gulf (between the Colorado river delta and Isla San Esteban), as this marine portion fell under the legal category of internal waters, considering that these waters were situated “on the landward side” of the baselines used by Mexico to delimit its 12-nautical-mile territorial sea in 1968.154 However, Mexico had to wait for another seven years to claim the entire Gulf of California to be under its exclusive control and authority. The legal consequence of the delimitation of its territorial sea based on the straight baseline method was that the waters beyond twelve nautical miles in the interior of the gulf (in the southerly part of that basin), were under the high seas regime. This situation was soon to change in 1976, when Mexico embraced the then novel notion of the exclusive economic zone. Based on the practice of States in the late 1970’s, Mexico realized that at that time a total of forty-eight countries had already adopted a 200-nautical-mile EEZ.155 Furthermore, the trend towards the adoption of the EEZ would continue to increase. In the conduct of its foreign policy, Mexico has traditionally shown respect for international law. However, its early adoption of the exclusive economic zone in 1976 may have been interpreted by certain countries as a departure from this strict and long practice. Mexico knew that the early establishment

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For a discussion of the reasons supporting Mexico’s application of the straight baseline method to demarcate its territorial sea, see Bernardo Sepúlveda, Derecho del Mar. Apuntes sobre el Sistema Legal Mexicano, supra note 78, Chapter One: Mexico and Its Territory, at 247–250. For a U.S. viewpoint, see “Mexico: Straight Baselines,” supra note 144 in fine. (reproduced in Appendix Four). In the late 1970s, the forty-eight countries that established a 200 n.m. EEZ were: 1) Bangladesh (1974); 2) Barbados (1978); 3) Cambodia (1978); 4) Cape Verde (1977); 5) Colombia (1978); 6) Comoros (1976); 7) Cook Islands (1977); 8) Costa Rica (1975); 9) Cote d”Ivoire (1977); 10) Cuba (1977); 11) Djibouti (1979); 12) Dominican Rep. (1977); 13) Fiji (1977); 14) France (1976); 15) Grenada (1978); 16) Guatemala (1976); 17) Guinea Bissau (1978); 18) Haiti (1977); 19) Iceland (1979); 20) India (1976); 21) Kenya (1979); 22) Korea, North (1977); 22) Maldives (1976); 23) Mauritania (1978); 24) Mauritius (1977); 25) Mexico (1976); 26) Mozambique (1976); 27) Myanmar (1977); 28) New Zealand (1977); 29) Nigeria (1978); 30) Niue (1978); 31) Norway (1976); 32) Pakistan (1976); 33) Philippines (1978); 34) Portugal (1977); 35) Qatar (1974); 36) Samoa (1977); 37) Sao Tome/Principe (1978); 38) Seychelles (1977); 39) Salomon Islands (1978); 40) Spain (1978); 41) Sri Lanka (1976) 42) Suriname (1978); 43) Togo (1978); 44) Tonga (1978); 45) Vanuatu (1978); 46) Venezuela (1976); 47) Vietnam (1977); and 48) Yemen (1977). Data taken from E.D. Brown. The International Law of the Sea. Dartmouth (1994). Table 12. 1: Table of 200-mile EEZ Claims at 246–247.

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of the EEZ – prior to its formal and final incorporation in the final document to be produced by UNCLOS III – did not constitute a “legal title to convert into international law what was but a mere possibility of a future [international law] norm,” in the words of Amb. Castañeda. After carefully considering the situation and its international repercussions, “Mexico thought that it was worth it to take a calculated risk” which eventually led to the desired results. The strategy adopted by Mexico was that if Mexico, and many other countries, were to “unilaterally establish their respective exclusive economic zones closely adhering to the model produced by the work of the law of the sea conference, and based upon said work, each of these individual claims may, with the passing of time, configure a norm of customary international law.”156 The unilateral adoption of the EEZ by Mexico, in symmetry with the works and the philosophy of the conference, encouraged many other States to follow its example, thus contributing to the strengthening of the consolidation of a new rule of international law. For Mexico, and the other countries that decided to adopt the EEZ, this display of State practice constituted evidence that the 200 nautical mile exclusive economic zone had become piece of customary international law. In addition, the incorporation of the EEZ in the latest draft of the Third United Nations Conference on the Law of the Sea suggested that this zone was already in the process of becoming a part of international conventional law.157 The legal adoption of the exclusive economic zone converted what used to be high seas waters in the southern part of the Gulf of California into waters forming a part of Mexico’s exclusive economic zone. The application of this method resulted in an oceanic area situated north of the Parallel 29, defined by Mexican legislation as internal waters. In other words, this is the marine area comprised of waters between the islands San Lorenzo, San Esteban and Turners, in the south, and the delta of the Colorado River, in the north. With the adoption of this novel law of the sea space in 1976 Mexico not only was able to legally consider the entirety of the Gulf of California as a virtual “national sea” but to establish a 200 nautical mile exclusive economic zone larger in area than its continental territory. This zone is the seventeenth largest

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See Jorge Castañeda. México y el Nuevo Derecho del Mar (Mexico and the New Law of the Sea) in Obras Completas, Vol. II, SRE/Colef, México (1995), Vol. II at 218, 195–229. In the 1980’s, a total of 28 countries established a 200 nautical mile EEZ. These countries are: 1) Antigua/Barbuda (1982); 2) Dominica (1981); 3) Egypt (1983); 4) Equatorial Guinea (1984); 5) Gabon.

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in the world.158 Thus, the “Mexicanization” of the Gulf of California – a long time aspiration of the Mexican people – became a legal and economic reality. In the legislative bill sent by President Echeverría to the Mexican Senate,159 he wrote: In effect, by virtue of the establishment of the Exclusive economic zone the Mexican state shall acquire all the powers and faculties it is interested in exercising in the portion of the Gulf [of California] not submitted to the internal waters regime over which the Mexican state has exercised its sovereignty. The living resources, i.e., all the rich and varied fishing resources in said Gulf shall be exclusively reserved to the Mexican state and to its nationals, as well as the exclusive exploitation of its non-renewable resources, whether minerals laying on the marine seabed of the gulf or hydrocarbons in its subsoil, Mexico shall have exclusive jurisdiction to deny or authorize the establishment of any installation, artificial islands or any other type of structures within the gulf. Other economic resources of the gulf are also reserved to the Nation, including those that are not foreseeable nor economically viable, such as the exploitation of currents, winds or waters for the generation of energy. In addition, the Nation shall exercise sufficient jurisdiction to preserve in that zone the marine environment, including the control and elimination of pollution. Lastly, it shall exercise jurisdiction at its own discretion to grant or deny its authorization and to regulate any scientific research related to the exploitation of the resources within the Gulf of California.160

Amb. Castañeda, in charge on law of the sea questions at the Secretariat of Foreign Affairs (SRE) at that time, commented that the establishment of the EEZ over the southern portion of the gulf, accomplished by means of adding an eighth paragraph to Article 27 of the Political Constitution, “[O]pened up the path to consider in the future the inclusion to the national territory the waters of the Gulf of California as internal waters belonging to the Mexican Nation.”161 a. Diplomatic Protest by the United States in 1969 The use of the method of straight baselines for measuring the breadth of the territorial sea is codified in Article 4 of the U.N. Convention on the Territorial

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According to the Mexican Navy, Mexico’s land territory comprises some 2.0 million square kilometers and the exclusive economic zone 2.5 million square kilometers. Iniciativas de Decreto y Ley enviadas por el Presidente de la República, Lic. Luis Echeverría a la Cámara de Senadores relativa al Establecimiento de la Zona Económica Exclusiva de 200 millas náuticas (Legislative bills regarding the establishment of an EEZ of 200 n.m.), dated November 4, 1975. Ibid. The full text of these bills is reproduced as “Appendix 3” at Jorge A. Vargas. La Zona Económica Exclusiva de México, supra 28 at 43–58. See Castañeda. México y el Nuevo Derecho del Mar (Mexico and the New Law of the Sea), supra note 161, Vol. II at 219.

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Sea and the Contiguous Zone of 1958.162 The validity of this method under international law was favorably sanctioned by the International Court of Justice in its now famous decision of 1951 in the Anglo Norwegian Fisheries Case.163 The use of the straight-baseline method departs from the application of the traditional use of the “normal baseline” for measuring the territorial sea prescribed by Article 3 of said Convention. Therefore, this method is considered to be an exception to the use of the normal baseline and is to be applied only where the coastline of the State in question complies with the specific technical requirements enunciated by Article 4 the Convention, namely: 1. The method of straight baselines may be employed . . . in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity; 2. The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. 3. Baselines shall not be drawn to and from low-tide elevations, unless light houses or similar installations which are permanently above sea level have been built on them; 4. Where the method . . . is applicable . . ., account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage; 5. The system of straight baselines may not be applied by a State in such a manner as to cut off from the high seas the territorial sea of another State; 6. The coastal State must clearly indicate the straight baselines on charts, to which due publicity must be given.164 In a diplomatic note lodged at Mexico’s Secretariat of Foreign Affairs (SRE) in 1969, the United States questioned the validity of the use of the straight baseline method by Mexico alleging, inter alia, that: In the main, the Mexican baselines connect islands which may be judged to fringe the coast. However, in four instances, the straight baselines do not conform to the general trend of the coast. The lines enclosing the islands of Las Animas, San Ildefonso, Tortuga and San Pedro Nolasco all diverge from the coast at angles greater 162

163 164

Both Mexico and the United States became parties to this Convention. 1958 U.N. Geneva Convention on the Territorial Sea and the Contiguous Zone. Anglo-Norwegian Fisheries Case, United Kingdom v. Norway, 1951, I.C.J., 116. Article 4, paras. 1–6, U.N. Geneva Convention on the Territorial Sea and the Contiguous Zone of 1958 (emphasis added ).

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than 40 degrees. These angles are maintained over both the local and the general trends of the coast. Moreover, straight baselines serve to cut off nearly 30% of the area of the Gulf from the previously defined high seas. Such move, it would appear, could be justified only on the basis of historic waters as claimed over a considerable period of time. Sole and intensive use of by local inhabitants would need to be established. However, no such claim has been discovered in the public record. It should be noted that the northern quarter of the Gulf [of California] is virtually devoid of islands. Moreover, the coast is relatively smooth, although a few bay-like indentations exist. As a result, straight baselines for the section would add very little to the internal waters of Mexico.165

It has been reported that since 1951, some 75 States have used the straight baseline method along all or part of their coasts.166 The United States may be the country that has lodged the largest number of diplomatic protests because of the colorable legal or technical nature of these claims perceived to be not in conformance with the applicable international convention but also as an interference with the freedom of navigation.167 For a number of years, Mexico contemplated the possibility of incorporating the Gulf of California as a “national sea” or as a kind of national marine area,168 to no avail. Accordingly, the use of the method of the straight baselines as predicated by Article 4 of the 1958 Geneva Convention constituted the best sub-optimal alternative to getting closer to that goal. Mexico proceeded to take cautious steps at the domestic and international level in order to accomplish its objective: first, it formed a special InterSecretarial Commission who conducted in situ visits to the key islands, gulfs and bays, as well as other coastal areas in the Gulf of California to determine the valid application of the straight baseline system;169 second, it amended the two paragraphs of Article 18 of its General Act on National Assets (Ley General de Bienes Nacionales): Paragraph I enlarged Mexico’s territorial sea from 9 to 12 165

166

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168 169

Taken from “Limits in the Seas,” No. 4, Straight Baselines: Mexico,” of 24 January 1970. International Boundary Study, Series A. U.S. Department of State, Bureau of Intelligence and Research, No. 45, January 24, 1970. Issued by The Geographer at 3–4. (Emphasis added ). See also the attached corresponding Map: Mexico. Straight Baselines, 1968. The text of the U.S. diplomatic note has not been disclosed neither by the United States nor by Mexico’s SRE. For a reproduction of both the U.S. and the Mexican maps, see at the end of this chapter Documents 2.5 and 2.6. See Louis B. Sohn and John E. Noyes. International Baseline Practice, Cases and Materials on the Law of the Sea (2004) at 253. See U.S. Department of Defense. Maritime Claims Reference Manual (DoD 2005. 1–M, 1997); U.S. Digest 997–998; Nash, Digest 1832–1833; Statement on United States Oceans Policy, March 10, 1983, 22 I.L.M. 464 (1983). See also W. Michael Reisman & Gayl S. Westerman. Straight Baselines in International Maritime Boundary Delimitation (1952); and Bernard H. Oxman. Drawing Lines in the Sea, 18 Yale Journal Int’l Law 663 (1993). See supra notes 139–141, and the accompanying texts. See supra note 149.

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nautical miles,170 and a new Paragraph II reproduced the language of Article 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone, thus incorporating the straight baseline method as part of Mexico’s domestic legislation.171 And third, at the international level, Mexico prepared itself to negotiate with the United States and Japan, whose fleets had been fishing in the Gulf of California for a number of years, in order to phase out their fishing rights in said Gulf.172 Regarding the idea of closing the Gulf of California to convert it into a national sea based on historic rights, Gómez Robledo wrote that Mexico decided to turn its attention to “more realistic arguments,” consisting of the “new delimitation system of the territorial sea” utilizing the straight baseline system established by the 1958 U.N. Geneva Convention on the Territorial Sea and the Contiguous Zone, to which Mexico was a party.173 In the opinion of this specialist, the system established by this Convention [I]s quite liberal, in the sense that there are no mathematical formulae, nor the prescription of a maximum determination in any sense or direction for the tracing of said straight baselines, and each State – as declared by the International Court of Justice – is to have all the necessary latitude of appreciation, ‘in order to have the possibility of adapting its delimitation [of the territorial sea] to the practical needs and the local requirements.’ From another angle, however, this liberty of appreciation cannot be infinite, nor arbitrary, but each State must prove in each case that, while tracing the straight baselines, it has complied with all the requirements, quite numerous by the way, prescribed by the Geneva Convention to legitimate that use.174

Gómez Robledo also mentions that, due to the special topography of the Gulf of California, Mexico had to abandon the idea of closing the gulf approximately at its half, drawing straight baselines from Punta Gabriel, in the Baja California 170

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Mexico’s 12 nautical mile territorial sea was later confirmed by Article 25 of the Federal Oceans Act (Ley Federal del Mar), published in the Diario Oficial on January 8, 1986 (Corrigendum in the D.O. of January 9, 1986) which remains in force today. See General Act on National Assets (Ley General de Bienes Nacionales), published in the Diario Oficial of December 26, 1969 (the corresponding decree entered into force the following day). See Fernando Castro y Castro. Convenios Bilaterales de Pesca: Práctica y Legislación Mexicana. México y el Régimen del Mar (Mexico’s Ocean Regime). SRE, México (1974) at 106–135. The decree that enacted the amended the General Act of National Assets (D.O. of December 26, 1969), in the Third Transitory Article prescribed that said “Decree does not affect the agreements already signed or to be signed pursuant to Transitory Article Three of the Act on the Exclusive Fishing Zone (Zona Exclusiva de Pesca of December 13, 1966, published in the Diario Oficial of January 20, 1967).” See Antonio Gómez Robledo. El Derecho del Mar en la Legislación Mexicana (Sinopsis HistóricoAnalítica), Mexico’s Oceans Regime, Ibid. at 103–104, 81–105. Id. at 102–103.

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Peninsula, to the southern points of the Islands San Lorenzo, San Esteban and Turner, to close the system at Punta Kino in the Sonoran coast. According to him, this system was rejected because “although each of the baselines from one point to another was correct . . . the tracing of the entire system would not follow the general direction of the coastline, as required by the Convention. Moreover, on the contrary, it may give the impression that it was making a horizontal cut across the gulf, not parallel but perpendicular to the two coasts.” He concluded that the procedure that “finally revealed itself as the only plausible one, and that for this reason deserved the approval of the Inter-Secretarial Commission empowered to study this question, was to draw two separate baseline systems – each one following the general direction of its respective littoral – along each of the two internal coastlines of the gulf, in an approximate north-south direction, in order to join the promontories in each littoral with the most salient points of the fringe of islands situated approximately at the middle of the gulf, in the general area of the 29th parallel.”175

In his closing remarks, Gómez Robledo explained that the convergence of the two straight baseline systems at the base of San Esteban Island confers, by itself, the character of “interior sea” to the northern part of the Gulf of California, with the understanding that the right of innocent passage is to be preserved in those waters, as prescribed by the Geneva Convention.176 After an objective and careful examination of the technical method of straight baselines used by Mexico in the interior of the Gulf of California in 1968, there is no doubt that in several instances the straight baselines “do not conform to the general trend of the coast,” as pointed out in the diplomatic note of the United States to Mexico’s Secretariat of Foreign Affairs (SRE) in 1969. Special attention should be given to the lines enclosing the islands of Las Animas, San Ildenfonso, Tortuga, and San Pedro Nolasco because “all diverge from the coast at an angle greater than 40 degrees. These angles are maintained over both the local and general trends of the coast.”177 In other words, from a strictly technical and geometrical angle, Mexico cannot say, nor prove, that the totality of the straight baselines used in the interior of the Gulf of California are in full conformance with the requirements prescribed by the Territorial Sea and the Contiguous Zone Convention of 1958.

175 176

177

Id. at 103. For a similar rationale by Mexico to legitimate the use of the straight baseline system to delimit its 12 n.m. territorial sea in the Gulf of California, see Bernardo Sepúlveda Amor. Derecho del Mar. supra note 154 at 247–260. For a historical and legislative review of the Gulf, see Armando López Campa. La Mexicanidad del Mar Bermejo, México (No publication date). Limits in the Seas No. 4. Straight Baselines Mexico, August 30, 1968. Text of decree taken from the Decreto, supra note 149 (translation by the author). (emphasis added)

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It may be of interest to point out that in the preambular part of the presidential “Decree that Delimited the Mexican Territorial Sea in the Interior of the Gulf of California” of 1968, President Gustavo Díaz Ordaz wrote: [T]he use of the system of straight baselines for the delimitation of our territorial sea in the interior of the Gulf of California, where the islands situated along the respective coasts permit the drawing of such straight lines, without departing in an appreciable manner from the general direction of said coasts. – a concept which does not have mathematical precision, as recognized by the International Court of Justice.178

Although it is true that the method of applying straight baselines to a fringe of islands along the coast may not have “mathematical precision” since this method is subject to a certain degree to the discretion of the coastal State, it should also be evident that science can objectively determine whether the drawing of straight baselines applied to such islands has departed or not “to any appreciable extent from the general direction of the coast,”179 in the language used by Art. 4, para. 2, of the Convention on the Territorial Sea and the Contiguous Zone of 1958. After careful technical studies by The Geographer of the U.S. Department of State it was scientifically determined that the straight baselines applied by Mexico in the interior of the Gulf of California in 1968, in “four specific instances, do not conform to the general trend of the coastline.” The four instances refer to the lines enclosing the islands of Las Animas, San Ildefonso, Tortuga and San Pedro Nolasco, “where all diverge from the coast at angles greater than 40 degrees.”180 Mexico’s foreign policy is traditionally known for its compliance with international law and for its respect to the principle of Pacta sunt servanda. Therefore, there may have been other considerations that this nation took into account when applying the method of straight baselines in the Gulf of California. One consideration may be the fact that Mexico was one of the very first countries that applied such a method when the then novel straight baseline system was more of a tabula rasa in the international practice of States. In contrast, as 178 179

180

English translation taken form Limits in the Seas, Id. at 6. Since the creation of the International Boundary and Water Commission (IBWC) between Mexico and the United States in 1889, this binational body has been assigned highly technical and complicated questions pertaining to water allocation and boundary delimitation questions, including the drawing of international maritime boundaries between both countries. For the IBWC, the determination of whether the application of the straight baselines in the Gulf of California departed or not “from the general direction of the coast,” would have been a relatively simple task. However, the IBWC was not asked to render its technical and authoritative opinion on this intriguing and delicate matter. See Limits in the Seas No. 4. Straight Baselines: Mexico. Bureau of Intelligence and Research. Issued by The Geographer, U.S. Department of State, January 24, 1970 at 6 (emphasis added).

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pointed out by Roach,181 since the Geneva Convention was formulated in 1958, 75 countries have applied such method with varying degrees of accuracy. When one compares some specific examples of this international practice one may conclude that Mexico’s application of the straight baseline method was, if not perfect, in fairly close adherence to the letter and the spirit of the convention. Mexico was intent in establishing the straight baseline method and also in doing it in such a way as not to injure or adversely affect the traditional rights of third States, in particular the United States and Japan, whose vessels had been fishing for a number of years in the Gulf of California. In order not to affect these countries’ traditional fishing rights, Mexico proceeded to enter into separate bilateral agreements with each of them in which those traditional fishing rights were eventually terminated after five years. At the same time, Mexico took advantage of these negotiations to successfully establish a new fishing zone between nine and twelve nautical miles.182 A possible right that may have been adduced by the United States was that of the “free and uninterrupted passage in the Gulf of California, and in the Colorado River below its confluence with the Gila, to and from their possessions situated north of the boundary line,” as stipulated by Art. VI of the Treaty of Guadalupe Hidalgo of 1848.183 However, since the United States interrupted the navigability of the Colorado River by building major dams along its course (i.e., Hoover Dam and Elephant Butte), the original right of navigability was cancelled by the United States based on the principle of Rebus sic stantibus. Finally, in 1976 Mexico established a 200 nautical mile EEZ along its coastlines, including the Gulf of California. As a result of the establishment of this zone, no countries, including the United States, had access to this zone to engage in any economic activities without first having to seek and obtain Mexico’s authorization. The practical effect of the establishment of this zone was that the entirety of the Gulf of California virtually became a Mexican national sea. Although the Second Transitory Article of the decree that delimited the Mexican territorial sea in the Gulf of California explicitly mentioned that the straight baseline system utilized by Mexico was going to be depicted in the corresponding nautical charts, as mandated by Art. 4, para. 6, of the Convention

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See J. Ashley Roach and Robert W. Smith. United States Responses to Excessive Maritime Claims. Martinus Nijhoff Publishers (1996). For an interesting and authoritative narrative of the strategies followed by Mexico to accomplished these results with the United States and Japan, see Fernando Castro y Castro. Convenios Bilaterales de Pesca: Práctica y Legislación Mexicana (Fishing Bilateral Agreements: Practice and Mexican Legislation) in México y el Régimen del Mar (Mexico and the Oceans Regime). SRE, México (1974) at 106–129. Treaty of Guadalupe Hidalgo. No. 129: Mexico: February 2, 1848. Taken from “Treaties and Other International Acts of the United States of America.” Edited by Hunter Miller.

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on the Territorial Sea and the Contiguous Zone of 1958, Mexico, for unknown reasons, has not complied with this important requisite.184 B. The Territorial Sea From historical and diplomatic perspectives, the transitional phases of the widening of the territorial sea from three to twelve nautical miles, as it stands today, demonstrate the balanced position taken by Mexico regarding this highly sensitive and controversial question. Since the adoption of the three-marine league width of the territorial sea established between Mexico and the United States by the Guadalupe Hidalgo Treaty of 1848 to the establishment of the twelve nautical mile width declared by the FOA, Mexico maintained not only a balanced position on this matter but, more importantly, a reasonable approach based on its respect to international law. Regarding the territorial sea, Articles 23 and 24 of the FOA prescribe: Article 23. The Nation exercises sovereignty over a marine belt, named territorial sea, adjacent to the national coastlines, whether continental or insular, and to the Internal marine waters. Article 24. The sovereignty of the Nation extends to the air space over the territorial sea, the seabed and the subsoil of said sea.185

FOA establishes the width of Mexico’s territorial sea as 12 nautical miles186 (i.e. 22,224 meters). In accordance with Mexico’s Constitution, Art. 28 of the FOA declares that “any slave entering this marine space aboard a foreign vessel is free”187 and subject to the protection of Mexican laws and Article 29 declares that “the vessels of all States, whether coastal or landlocked, enjoy the right

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186 187

Article 4, para. 6 of the Geneva Convention reads: “The coastal State must clearly indicate the straight baselines on charts, to which due publicity must be given.” Under international law, if a country does not give proper publicity to the existence of said straight baselines, foreign vessels may not respect Mexico’s outer boundary of certain marine zones (such as the territorial sea and the contiguous zone), because said vessels did not know where the outer boundary of said zones was established, given the fact that Mexico did not duly publicize the charts where the baselines for those marine zones are officially established. FOA, Arts. 23 and 24 (Title II: Mexican Marine Zones; Chapter I: The Territorial Sea). These two articles reproduce almost verbatim the tenor of paragraphs 1 and 2 of Article 2 of the 1982 Convention. FOA, Art. 25. See Art. 3 of the 1982 Convention. This article is based on Article 2 of Mexico’s Political Constitution, which reads: Slavery is prohibited in the United Mexican States. Slaves who enter the national territory from abroad shall, by this fact alone, obtain their freedom and enjoy the protection of the [Mexican] laws.

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of innocent passage through the Mexican territorial sea.”188 Whereas Articles 18 and 19 of the 1982 Convention provide explicit definitions of the legal meaning of “passage” and “innocent passage,” respectively, the FOA is silent regarding the meaning that Mexico gives to these two highly sensitive law of the sea terms.189 Articles 30 and 31 merit special attention.190 Taken directly from the 1982 Convention, Article 31 establishes that Mexico’s federal executive shall demand accountability from the flag State for any loss or damage caused by a warship, or by any other public vessel operated for non-commercial purposes, which results from non-compliance with the pertinent Mexican laws or regulations on innocent passage, or with the provisions of the FOA, its regulations191 and other applicable norms of international law. Art. 31 adds that, with the exceptions created by the FOA, no provision in said Act is to affect the immunities of foreign warships and other government ships operated for non-commercial purposes.192 Evidently, any vessel in the Mexican territorial sea is to comply with the pertinent national statutory provisions and their regulations (if any), as they apply to fishing, protection of the marine environment, maritime traffic, etc.193 Aircraft are “subject to the application of national laws, in accordance with the international obligations of the United Mexican States on this matter and their inspection, surveillance and control are subject exclusively to the jurisdiction

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The language of FOA’s Article 29 reproduces the language of Article 17 of the 1982 Convention. Under Mexico’s legal system, the definition of legal terms, or other details that may supplement or expand the tenor of a given statute, such as FOA, are left to be included in the corresponding Regulations to be prepared and published by the Federal Executive. However, FOA’s Regulations (Reglamento de la Ley Federal del Mar) have not been enacted yet notwithstanding that FOA was published in early 1986. These two articles are taken from Articles 31 and 32 of the 1982 Convention. Although the Federal Oceans Act (FOA) was enacted twenty-three years ago (D.O. of January 9, 1986), as of today (2009) the Mexican Federal Executive, for unknown reasons, has not enacted the corresponding Regulations. Occasionally, this happens in Mexico. For example, the Foreign Investment Act enacted by President Echeverría in 1973 (D.O. of March 9, 1973) was applied, enforced and interpreted by Mexico’s authorities and courts during 16 years with no regulations whatsoever. Finally, in 1989, President Salinas de Gortari enacted the corresponding Regulations (D.O. of May 16, 1989). Not enacting the corresponding Regulations – an exclusive function of the Federal Executive – provides the Mexican federal authorities with a larger degree of discretionary authority. This article is taken almost verbatim from Art. 32 of the 1982 Convention. See, in this regard, Art. 5 of the FOA which prescribes that in the Mexican marine zones “Foreign states and their nationals, while engaged in any activities in [the Mexican marine zones] shall comply with the provisions established by the FOA for each of those zones, with the corresponding rights and obligations.”

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of the Federal Executive Power,194 in the terms of the General Means of Communication Act, and other applicable legal provisions.” Mexico was among the first countries in the Western hemisphere to adopt a 12-nautical-mile territorial sea in 1969, in consonance with the growing practice of States at that time.195 From an original marginal belt of three nautical miles established in 1902,196 Mexico enlarged its territorial sea to nine nautical miles in 1935.197 By a Presidential decree amending its General Act of Immovable Assets (Ley General de Bienes Inmuebles) Mexico further widened its territorial sea to twelve nautical miles in 1969.198 The new twelve nautical mile breadth of the territorial sea did not apply to the United States or Japan until 1973.199

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FOA, Art. 33. In this regard, Mexico’s Ley de Vías Generales de Comunicación (Federal Act on General Means of Communication, D.O. of June 15, 1992, as amended). In the 1960’s and early 70’s the width of the territorial sea was not only fluid but subject to a strong expansionist trend. According to the legal experts at Mexico’s Secretariat of Foreign Affairs (SRE), by 1969 thirty-nine states had already adopted a 12-nautical mile territorial sea. This inspired Mexico to join this trend, indicative of a reasonable and clearly emerging uniform State practice at that time. For an historical discussion on how Mexico decided to adopt this outer boundary, see A. Gómez Robledo. Derecho del Mar en la Legislación Mexicana; and Alfonso García Robles, Desarrollo y Codificación de las Normas Básicas del Derecho del Mar hasta 1960 in México y el Régimen del Mar, supra note 28 at 81–90 and 15–36, respectively. See also A. Székely, supra note 12 at 51–63. Art 4, para. I, of Ley de Bienes Inmuebles de la Nación (Act of Immovable Assets of the Nation, D.O. of December 18, 1902) prescribes that: Assets of the public dominium or common usage (Bienes del dominio público o del uso común), controlled by the Federation, are the following: I. The territorial sea up to a distance of three maritime (sic) miles, measured from the line of the lowest tide in the continent’s coastline or in the islands that form a part of the national territory. Cite taken from Székely, supra note 12 at 45–46, 51. See Decreto que Reforma la Ley de Bienes Inmuebles de la Nación (Decree that Amends the Act on Immovable Assets of the Nation, D.O. of August 31, 1935). The only article of this decree amended Art. 18, para. I, to provide: I. The territorial sea, up to a distance of nine nautical miles (16,668 km.), measured from the line of the lowest tide in the continent’s coastline or in the islands that form a part of the national territory. Cite taken from Székely, Id. at 51. Decreto que Reforma el Primero y Segundo Párrafos de la Fracción II del Artículo 18 de la Ley General de Bienes Nacionales (Decree that Amends the first and second paragraphs of the second Section of Article 18 of the General Act of National Assets, D.O. of December 26, 1969). The text is identical except for the 12 nautical miles of the new breadth of the territorial sea. Id. at 62–63. The 1969 decree that enlarged the width of the Mexican territorial sea from 9 to 12 nautical miles contained a provision stipulating that the new width would not apply to fishing vessels of the United States and Japan as a result of bilateral fishing agreements signed by Mexico with each of these two countries on October 27, 1967 and March 7, 1968, respectively. Based on these agreements, fishing activities by nationals of these two nations were phased

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The Geneva Conferences on the Law of the Sea in 1958 and 1960 failed to reach agreement on the maximum width of the territorial sea, but Mexico hoped that the new standard of international law, favoring a twelve nautical mile territorial sea, would emerge as more coastal States adopted this limit. Out of respect for international law, Mexico proceeded cautiously in its attempts to obtain a twelve nautical mile limit for its marginal belt. This ingenious diplomatic approach, developed by Alfonso García Robles, proved highly successful.200 Rather than unilaterally extending its territorial sea, Mexico first engaged in negotiations with the United States,201 and Japan,202 two of the four countries whose nationals traditionally fished off its shores, leading to agreements with those States. To do otherwise might have caused a direct confrontation with the United States or other major maritime powers. No agreements were reached, however, with the remaining two countries, Cuba203 and Guatemala.204 These negotiations led to bilateral fishing agreements with the U.S. and Japan, recognizing their “traditional fishing rights” in the three nautical mile belt contiguous to the Mexican territorial sea for a five year period beginning January 1, 1968.205 These traditional fishing rights were then gradually phased out over the same five-year period. After progress in the negotiations suggested that the desired objective was within reach, Mexico created a three nautical mile “Exclusive Fishing Zone” (Zona Exclusiva de Pesca) by presidential decree

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out over five year periods ending on January 1, 1973 for the U.S. and December 31, 1972 for Japan. For an analysis on the content and legal consequences that led to the signing of fishing agreements with the U.S. and Japan, see Fernando Castro y Castro. Convenios Bilaterales de Pesca: Práctica y Legislación Mexicana. México y el Régimen del Mar, supra note 28 at 106–135. Agreement between the United States of America and Mexico on Traditional Fishing in the Exclusive Fishing Zones contiguous to the Territorial Seas of both Nations, October 27, 1967. See 18 UST 2724; TIAS 6359. Convenio entre los Estados Unidos Mexicanos y el Japón sobre Pesca por Embarcaciones Japonesas en las Aguas Contiguas al Mar Territorial Mexicano. (Agreement between Mexico and Japan on Fishing by Japanese vessels in the Waters Contiguous to the Mexican Territorial Sea). Signed at Tlatelolco, Mexico on March 7, 1968. The text of this agreement appears in México y el Régimen del Mar, supra note 28 at 355–357. Mexico and Cuba held two negotiating sessions on this matter on May 16 and 25, 1967. Although considerable progress was made initially, at the end no bilateral agreement was concluded. See Castro y Castro, Id. at 130–134. Ibid. During the administration of President Adolfo López Mateos (1958–1964) a number of incidents involving Guatemalan fishing vessels in Mexican waters led to a distancing in the relations of the two nations. These incidents, as well as the lack of a fishing boundary pact between these nations, apparently impeded the formalization of a bilateral agreement with Guatemala. Id. at 134. For information on the background, formulation and implementation of the Mexican diplomatic strategy with the U.S., see Castro y Castro, supra note 28 at 106–135.

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of January 20, 1967.206 This zone, measuring between nine and twelve nautical miles from the baseline, was used to determine the width of Mexico’s territorial sea. A provision in this decree stipulates: The Federal Executive shall establish the conditions and terms under which nationals of countries that have traditionally exploited living resources of the sea, within the zone of three nautical miles outside the territorial sea, may continue their activities during a period of time that will not exceed five years, counted from January 1, 1968. During 1967, the nationals of said countries may continue their activities without having to comply with any special condition.207

In his rationale (Exposición de Motivos), President De la Madrid characterized the FOA as a “Ley marco,” namely, a piece of legislation defining Mexico’s marine spaces in legal symmetry with Articles 27, 42 and 48 of the Political Constitution and prescribing the major legal principles and rules governing said spaces.208 In other words, the FOA is a principal legislative enactment that established, in broad terms, the legal framework of Mexico’s marine spaces. Given its central role in establishing and delineating that country’s marine spaces, it was only logical to expect that the Federal Executive was to follow the enactment of this federal statute with the prompt publication of FOA’s regulations to detail and expand its important legal content. However, as of today (2011), Mexico has not enacted FOA’s regulations. The absence of these regulations leaves open the legal interpretation given by Mexico regarding a number of key terms and legal questions associated with the territorial sea, such as, for example, the drawing of baselines; the legal meaning of innocent passage and the laws and regulations of the coastal State relating to this activity; the obligations imposed on submarines and other undersea vehicles; the establishment of sea lanes and traffic separation schemes; the situation of foreign nuclear ships; the duties of the coastal State not to hamper the innocent passage of foreign ships; the rights of protection by the state and the charges that may be levied upon foreign vessels; the criminal and civil jurisdiction exercised over foreign ships, and the rules applicable to warships and other government ships operated for non-commercial purposes.209 This statute also includes other important legal questions pertinent to the other marine spaces,

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Ley sobre la Zona Exclusiva de Pesca de la Nación (Act on the Exclusive Fishing Zone of the Nation) D.O. of December 20, 1967. The Act entered into force on January 4, 1968. The text of this federal statute appears in México y el Régimen del Mar, supra note 28 at 343. Ibid. Legally, at that time, Mexico only had a nine nautical mile territorial sea; however, the bilateral agreements in question added a three nautical mile belt to the outer boundary of said territorial sea thus establishing what this author has referred to as a “virtual” 12-n.m. territorial sea. In other words, the legal width of the territorial sea was not affected and the narrow exclusive fishing zone was voluntarily agreed to by the interested contracting parties. See supra note 67 and President De la Madrid’s Exposición de Motivos at 1. These legal questions are addressed by Articles 16, 18, 19–28 of the 1982 Convention.

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in particular the continental shelf, the contiguous zone, and the exclusive economic zone, as well as the activities carried out in said zones such as fishing and aquaculture, marine scientific research, oil drilling, emplacement of platforms, generation of energy from winds, waves and currents, etc. Since Mexico is a party to the 1982 Convention it may be presumed that, in principle, that country may adhere to the tenor of the provisions relative to these questions found in that Convention. However, since the 1982 Convention may be categorized also as a “basic legal framework” (or Ley marco, in Mexico’s legal terminology), many of these questions are only addressed in broad terms and some of them remained unresolved by said Convention. According to Article 89, paragraph I, of Mexico’s Constitution, the President (i.e., Federal Executive) is the only federal organ empowered “[T]o promulgate and enforce the laws enacted by the Congress of the Union, providing for their exact compliance in the administrative sphere.”210 The enforcement of the laws and their exact compliance takes place in Mexico based on the specific and usually detailed provisions found in the corresponding “Regulations” or Reglamento. This regulatory power is of a legislative nature although, from a formal viewpoint, is considered to be an administrative power. The language of the Reglamento must conform to the federal statute in question, and is hierarchically inferior to it, always supplementing the statute and providing details that may allow the authorities to properly enforce its provisions.211 Given the enormous political power the Executive has historically enjoyed in Mexico, the use of this “regulatory power” has allowed the President to exercise ample discretion in numerous areas. So, the use of “Regulations” is recognized as an expedient administrative mechanism that “allows the Executive Power larger flexibility and control over the regulated subject matter and the preference to use regulations instead of laws.”212 Therefore, notwithstanding that the Executive may be in a position to promulgate regulations to the FOA that the Executive may favorably interpret as protecting Mexico’s interests, from a domestic perspective the absence of FOA’s Reglamento – as has been the case for the last twenty-three years – may be the best administrative strategy for Mexico to adopt under the current circumstances.213 Since there are no “Regulations,” the interpretation of any of 210

211

212 213

In Spanish, Art. 89, para. I, reads: “Las facultades y obligaciones del Presidente son las siguientes: I. Promulgar y ejecutar las leyes que expida el Congreso de la Unión, proveyendo en la esfera administrativa a su exacta observancia.” This is known as the President’s “regulatory power” (Facultad reglamentaria del Presidente). See Manuel González Oropeza. Reglamento. Nuevo Diccionario Jurídico Mexicano (New Mexican Legal Dictionary), Vol. 4, Porrúa/UNAM (2001) at 3263–3264. Ibid. at 3264. In answering the question as to why Mexico has not yet enacted the respective FOA regulations may be that, until today ( June 2011), the United States has not yet become a party to the 1982 LOS Convention.

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the FOA provisions is subject only to the exclusive and absolute discretion of the Executive. The lateral maritime boundaries between Mexico and the United States up to a distance of twelve nautical miles in the Pacific Ocean and in the Gulf of Mexico were established by the Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and the Colorado River as the International Boundary, signed in Mexico City by Cyrus Vance, Secretary of State, and Santiago Roel, Secretary of Foreign Affairs on May 4, 1978.214 In the U.S. Senate, the ratification of this treaty was delayed several years based on technical objections raised by Hollis D. Hedberg, former executive of the Gulf Oil Corporation.215 C. The Contiguous Zone President De la Madrid, in his Rationale to introduce the FOA’s legislative bill to the Mexican Senate, pointed out that the new legislation proposed the establishment of “a new marine zone under the national jurisdiction and in accordance with international law, namely, a twelve nautical mile Contiguous Zone along the outer boundary of its 12 n.m. territorial sea, where Mexico has the right to exercise a series of special jurisdictions (Competencias especiales).”216 As permitted by the 1982 Convention,217 Mexico now has a twelve nautical mile contiguous zone, located immediately adjacent to its territorial sea, as allowed by the 1982 Convention.218 The purpose of this space is “to prevent infringement of the applicable norms of this Act, its Regulations and the customs, fiscal, immigration or sanitary laws and regulations within its territory, in the Mexican Marine Internal Waters or in its Territorial Sea;”219 and “to punish these infringements . . .”220 In this regard, Articles 43 and 45 of the FOA read:

214

215

216 217 218 219 220

TIAS 7313; 23 UST 371. The Mexican Senate gave its approval to this treaty by decree published in the Diario Oficial of July 12, 1972. Actually, the lateral maritime boundary between the 12 n.m. territorial seas between both countries was originally established, in a provisional manner, by an Exchange of Notes of November 24, 1976. Thus, the 1972 Treaty simply ratified the maritime boundaries provisionally established in 1976, recognizing that the boundary lines established in 1976 were “practical and equitable.” For the text of the Exchange of Notes, see 29 UST 196, 1976 WL 166909 (U.S. Treaty), TIAS No. 8805. For a reproduction of the applicable maps, see Documents 2.2, 2.3 and 2.4 at the end of this chapter. See Jorge A. Vargas. Mexico’s Legal Regime over Its Marine Spaces, 26 Inter-American Law Review (1994–1995) at 220–226. See President De la Madrid’s Rationale in Ley Federal del Mar, supra note 1 at 14. See 1982 Convention, supra notes 6 and 66, Art. 33 at 11. See Art. 33, para. 2, of the 1982 Convention. FOA, Art. 42. See also 1982 Convention, supra note 7, Art. 33 at 11. FOA, Art. 42. See also Art. 33, para. I, subparas. (a) and (b) of the 1982 Convention.

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Article 43. Contiguous Zone of Mexico extends out to 24 nautical miles (44,448 meters) measured from the corresponding baselines from which, in accordance with Article 26 of this Act and the relevant provisions of its Regulations (Reglamento), the width of the territorial sea is measured. Article 45. The outer boundary of the Mexican Contiguous Zone is the line every point of which is at a distance of 24 nautical miles (44,448 meters) from the nearest point of the Territorial Sea baselines, as determined by Article 26 of this Act.

Historically, the General Act of National Assets of 1969 established an additional three nautical mile contiguous zone located in the outer boundary of the territorial sea. However, when the width of the territorial sea was enlarged to 12 nautical miles by the amendment of said General Act in 1969, the contiguous zone legally disappeared.221 The FOA re-established the contiguous zone in 1986 and, according to the 1982 Convention, the outer boundary of this zone extends today out to 24 nautical miles, as established by FOA’s Article 43. D. The Exclusive Economic Zone The FOA devoted to the exclusive economic zone – formed by Articles 46–56 – is the longest and most detailed section.222 In his Rationale, President de la Madrid wrote: Traditionally, the idea of the Exclusive Economic Zone has been associated with our rights over living resources in that area. It is not until now that we are becoming aware of the existence of other resources, different than fishing, such as the mineral resources. The existence of incomparable deposits of polymetallic nodules on the seabed of our Zone have been identified, especially in the Gulf of California and the Revillagigedo and Clarión Islands. The legislative bill provides a legal regime for the exploitation and conservation of these resources.223

Article 46 defines the exclusive economic zone in these terms: Article 46. The Nation exercises in an Exclusive Economic Zone situated outside the Territorial Sea and adjacent to it: I. Sovereignty rights for the purpose of exploration and exploitation, conservation and management of the natural resources, whether living or non-living, renewable or non-renewable, of the bed and subsoil of the sea and of the superjacent waters, and with regard to other activities for the economic exploration and exploitation of the Zone, such as the production of energy derived from the water, currents and winds;

221

222 223

For a discussion of the establishment of a contiguous zone in different pieces of Mexican legislation, see Székely, supra note 12 at 121–124. FOA, Arts. 46–56. See President De la Madrid’s Rationale in supra note 1 at 15.

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Chapter Two II. Jurisdiction as provided for in the pertinent provisions of this Act, its regulations and international law, with respect to: 1. The establishment and utilization of artificial islands, installations and structures; 2. Marine scientific research; and 3. The protection and preservation of the marine environment; and III. Other rights and duties provided for this Act, its Regulations (Reglamento) and international law.

The FOA prescribes that the inside boundary of the exclusive economic zone coincides with the baseline used to delimit the breadth of the territorial sea (pursuant to Article 26 of the FOA), and other pertinent provisions, as shown in the official nautical charts published by the government of Mexico.224 The outer boundary of this zone is located at a distance of 200 nautical miles (370,400 meters).225 Therefore, the zone’s outer boundary is composed of a series of arches uniting the points of the geographical coordinates published by decree in the Diario Oficial de la Federación of June 7, 1976, also depicted in the corresponding official nautical charts.226 With respect to islands, the FOA establishes that “islands shall enjoy an EEZ but not rocks that cannot sustain human habitation or economic life of their own.” (Art. 51).227 Three articles of the FOA refer to the rights and obligations of the Executive Power vis-à-vis foreign States in the exclusive economic zone (EEZ), stating that the Executive is to assure that, in the exercise of the rights and jurisdiction and in conformance with the obligations the Nation is to have in the EEZ, “the rights and duties of the other States be duly taken into account, acting in a manner compatible with international law” (Art. 47); that the same Executive “shall respect the enjoyment of the rights by foreign States of the freedoms of navigation, overflight and the laying of submarine cables and pipelines, as well as other uses of the sea internationally recognized as legitimate regarding said 224 225 226

227

FOA, Article 52. FOA, Articles 50, 53 and 54. FOA, Art. 54. Regarding charts and geographical coordinates, see Art. 75 of the 1982 Convention. When Mexico first established its EEZ in 1976, it enacted a decree that established the outer boundary of the EEZ based on geographical coordinates, published in the D.O. of June 7, 1976, and also depicted in an official chart. For the text of the decree, see Jorge A. Vargas. La Zona Económica Exclusiva de México, supra note 28 at 65–74. In general, see Articles 55–58 of the 1982 Convention. The FOA does not include any articles regarding the delimitation of the EEZ between states with opposite or adjacent coasts. However, Mexico has entered into bilateral agreements to delimit its EEZ with the United States and Cuba adhering to the principle of equidistance. For a graphic depiction of the EEZ, see Nautical chart No. S.M. 001: Zona Económica Exclusiva. Published by Secretaría de Marina, Dirección General de Investigacioń y Desarrollo (Sandeos en Metros, Escala 1:3,700,000). Segunda edición, Noviembre 2005 (Todos los derechos reservados).

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freedoms, such as those related to the operation of vessels, aircraft, submarine cables and pipelines, provided they are compatible with international law.” (Art. 48). Finally, that the Mexican “Executive Power shall monitor that, when foreign States exercise their rights and obligations in the EEZ, said foreigners shall duly take into account the rights, jurisdictions and duties of the [Mexican] Nation, and comply with the FOA, its regulations and other regulations adopted in accordance with the Constitution and other applicable norms of international law.” (Art. 49). Other articles of this statute prescribe that “the freedoms of navigation and overflight are to be respected by all States, both coastal and landlocked, subject to the pertinent provisions of the FOA, its regulations and international law.”228 The FOA prescribes that the Federal Executive shall impose “adequate measures for the management and conservation of the living resources,” determine “the allowable catch in the zone,” and “promote the optimum utilization of said resources.”229 When the total of the allowable catch of a given species “is larger than the capacity of fishing and hunting of the Mexican vessels, the Federal Executive Power shall give access to foreign vessels to the surplus exceeding the allowable catch in accordance with the national interest and under the conditions established by the Mexican fishing legislation.” These provisions closely adhere to the language of the 1982 LOS Convention. E. The Continental Shelf Geologists and oil specialists agree that for over a century, the giant oil deposits in the Gulf of Mexico have been “a strategic center for oil production on a global scale.” Mexico’s share of this oil province constitutes “the third largest in the world after the province in the Persian Gulf and the basin in Western Siberia.”230 Recently, it has been established that: The basin of the Gulf of Mexico approximately contains 9% of the liquid oil and 11% of the recoverable gas known to exist on a global scale. As of today, this basin is known to contain proven reserves of over 240 billion barrels of oil (MMMBPC or bbo), out of which approximately 160 billion have been extracted, leaving 80 bbo as proven reserves, three quarters of which belong to Mexico. Further, it has

228 229 230

FOA, Art. 55. FOA, Art. 56. See José Antonio Ceballos Soberanis. Las Exploraciones Petroleras en el Golfo de México (Oil Explorations in the Gulf of Mexico) in Secretaría de Energía (Secretariat of Energy). Los Espacios Marítimos y su Delimitación. Referencia Especial al Golfo de México (The Maritime Spaces and Their Delimitation. With Special Reference to the Gulf of Mexico). México (1999) at 245.

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Chapter Two been estimated that this mega basin contains an additional volume of potential resources higher than 100 bbo.231

From a geological viewpoint, the Gulf of Mexico basin has been divided into two large regions: the continental shelf, limited by the 200-meter isobath, and the continental margin. The first region is mainly a gas basin in the United States side, and an oil basin in the Mexican side. The continental margin is in an advanced stage of development in the United States and in Mexico in a phase of initial evaluation. The first submarine well was drilled in the Gulf of Mexico in 1947, offshore the Louisiana coast. Since that year, the exploration and production activities in this continental shelf have been of major importance on a global scale.232 In Mexico, Petróleos Mexicanos (or PEMEX, Mexico’s governmental public entity exclusively empowered to explore and exploit oil in that country) initiated its submarine oil explorations in the Gulf of Mexico in 1947. In the 1950s, PEMEX discovered three important oil fields offshore Coatzacoalcos, Veracruz, with total proven reserves of 56 bbo in Tertiary oil fields. Between 1963 and 1974, thirteen additional oil fields were discovered in the eastern side of the Faja de Oro atoll, for an added proven oil reserve of 293 bbo. In 1967 one of the most important discoveries during that decade was the “Arenque” field, offshore Tampico, in the State of Tamaulipas, with a proven reserves of 218 bbo. Later on, the Sonda de Campeche was discovered and proven to be “one of the most important oil provinces in the world.”233 On January 1, 1999, the total remaining hydrocarbon reserves in this Sonda amounted to 24,169 bbo, divided between 21,291 bbo of oil, and the remaining of gas. PEMEX considers the Sonda de Campeche as among its most strategic fields because of its potential, the amount of investments in oil production and transportation infrastructure and its location in shallow waters under 200 meters.234 Regarding this Mexican marine zone, President de la Madrid indicated in his Rationale that “Mexico lacks domestic legislation that defines the continental shelf ’s outer boundary, given the vagueness that prevailed on this matter in international law.” Accordingly, his legislative bill provides certain “criteria to establish such an outer boundary in that submarine area rich in mineral wealth, especially hydrocarbons.”235 231

232 233

234 235

Ibid. This oil province in the Gulf of Mexico is shared by the United States and Mexico. See Chapter Seven in this book. Id. All this information is taken from this important report by Mexico’s Secretariat of Energy (SE) at 246. Ibid. at 247. See Rationale, supra note 1 at 15. Regarding the outer boundary of the continental shelf, please refer to FOA’s Articles 62, 64 and 65, infra. See in this regard Art. 76 of the 1982

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In general, on this matter the FOA adheres to the 1982 Convention when it prescribes that Mexico “exercises sovereignty rights on the continental shelf for purposes of exploring and exploiting its natural resources.”236 The FOA characterizes these rights as “exclusive in the sense that if Mexico does not explore its continental or insular continental shelves, or does not exploit its natural resources, no one can initiate these activities without the explicit consent of the Mexican authorities.”237 The Act also adds that these rights “are independent from the real or fictitious occupation” of this submarine space238 and that these rights “do not affect the legal condition of the superjacent waters, or that of the airspace over said waters.”239 One of the most important provisions in this section is Article 62 which refers to the outer boundary of the Mexican continental shelf. This article reads: Article 62. The continental shelf and the Mexican insular shelves comprise the bed and the subsoil of the submarine areas that extend beyond the territorial sea, and throughout the natural prolongation of the national territory out to the outer boundary of the continental margin (Margen continental ), or up to a distance of 200 nautical miles measured from the baselines from which the territorial sea is measured, in those cases when the outer boundary of the continental shelf does not reach that distance, in accordance with what is prescribed by international law. The preceding definition also applies to the shelves of islands, cays and reefs that are a part of the national territory.

The internal boundary of the continental shelf and of the Mexican insular shelves coincide with the outer boundary of the seabed of the territorial sea as determined by Article 26 of the FOA, and the pertinent provisions of the Regulations (Reglamento),240 and as it appears depicted in the charts officially recognized by the United Mexican States.241 Where the outer boundary of the continental margin of the continental shelf and that of the insular shelves do not reach out to 200 nautical miles measured from the baselines from which the territorial sea is measured, the outer boundary of said shelves shall coincide with the outer boundary of the seabed of the Exclusive economic zone, as determined in accordance with Articles 53 and 54

236 237 238 239 240 241

Convention. On December 2007, Mexico made a partial submission to the Commission on the Limits of the Continental Shelf through the Secretary-General of the United Nations. On May 20, 2009, Mexico completed its submission regarding the outer boundary of the continental shelf beyond 200-nautical miles involving the western polygon in the Gulf of Mexico. FOA, Art. 57. FOA, Art. 58. This interpretation is in symmetry with Article 77 (2), 1982 LOS Convention. FOA, Art. 59. See Art. 77 (3), 1982 LOS Convention. FOA, Art. 60. See Art. 78 (2), 1982 LOS Convention. As of this date ( January 2010), FOA’s regulations have not been published. FOA, Art. 64. See reference to Mexico’s Navy EEZ Nautical Chart in supra note 225.

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of this Act, and as depicted in the charts officially recognized by the United Mexican States.242 Finally, in legal symmetry with Article 121 of the 1982 Convention, the FOA prescribes that Mexican islands are legally recognized to have a submarine continental shelf (but not rocks which cannot sustain human habitation or economic life of their own).243 Both Mexico and the United States are clearly aware, based on scientific studies, that the continental shelf in the central and deepest portion of the Gulf of Mexico is rich in untapped mineral resources, especially hydrocarbons and natural gas. In a comprehensive geological study published in 1991, Richard Nehring – a geological expert in the Gulf of Mexico basin – asserted that the gulf is “one of the foremost petroleum provinces of the world”244 and that: By the end of 1987 this basin had a demonstrated ultimate known recovery of 112.7 billion barrels of crude oil, 22.5 billion barrels of natural gas liquids (for a total of 136.6 billion barrels of petroleum liquids), and 534.8 trillion cubic feet of natural gas, for a total of 222.54 billion barrels of oil equivalent.245

Historically, the establishment of international boundaries between Mexico and the United States – whether land or maritime – has been a source of conflict and disagreement. The fact that these two countries have successfully negotiated formal bilateral agreements on virtually all of the international boundaries that today exist between them is a sign of the closer understanding, friendship and pragmatism in their relations. On June 9, 2000, Mexico and the United States signed a Treaty for the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 nautical miles.246 Since 1976, both countries had established a respective exclusive economic zone extending out to 200 nautical miles in front of their respective coasts. However, because of the dimensions and the geographical configuration of the Gulf of Mexico, two small marine areas in the middle of this gulf where the respective EEZs do not touch each other, leave two “gaps” or “holes” along the submarine boundary: one in the western part and the other in the eastern part of the gulf. These marine areas, or “gaps,” are located beyond the 200 nautical mile boundary and they are known respectively as “the Western gap” and the “Eastern gap.”247

242 243 244

245 246 247

FOA, Art. 65. FOA, Art. 63, in relation with Art. 121, para. 3, of the 1982 Convention. See R. Nehring. Oil and Gas Resources in Amos Salvador (Ed.). The Gulf of Mexico Basin. Department of Geological Sciences, U. of Texas at Austin (1991) at 446. Ibid. U.S. Treaty Doc. No. 106–39 (2000). Eventually, Mexico and the United States may have to enter into another treaty to delimit the submarine boundaries along the “Eastern gap,” probably involving Cuba as well.

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The specific purpose of the 2000 Treaty was to establish a submarine continental shelf boundary in the “Western gap” (relatively near Texas and Louisiana, and Tamaulipas, Mexico), as the title of the Treaty suggests. Using a system of geodetic lines connecting geographical coordinates,248 the treaty demarcates the jurisdictions of Mexico and the United States over the seafloor and subsoil in the “Western gap,” in an international boundary line extending for about 140 miles.249 Similar to the earlier maritime delimitation treaties of the territorial sea between both countries in 1970 and 1978, the central principle that controls this submarine boundary is the principle of equidistance. In the background information prepared by the Mexican Secretary of Foreign Affairs Rosario Green and the U.S. Secretary of State Madeleine Albright when the 2000 maritime delimitation treaty in the Gulf of Mexico was signed, it was established that: Along its entire course, the boundary is equally distant from the respective baselines from which each country measures its territorial seas. This baseline includes offshore islands of each State. The end points of this agreement coincide with the terminal points of the 1978 boundary. The boundary comprises fifteen segments and extends in a general east-west direction for 135 nautical miles.250

When the Treaty was signed in 2000, both Mexico and the United States realized that the legal content and, especially, the eventual interpretation and implementation of said treaty, were going to depend critically on a number of key factors. These factors include: a) scientific and technical data providing them with more complete and accurate information regarding the existence of mineral deposits in the deepest parts of the Gulf of Mexico; b) possessing the technology required to commercially exploit hydrocarbons and gas deposits located in the so-called “ultra-deep” submarine areas of that marine basin; and, c) determining with scientific and legal certainty whether the respective submarine continental shelves of Mexico and the United States in the Gulf of Mexico extend beyond 200 nautical miles. The crux of this legal question centers on the existence of an important submarine deposit of oil and natural gas in the deepest part of the Gulf of Mexico whose volume, quality and precise boundaries have not yet been determined with absolute certainty. Under international law, as stated in the “Background document” put out by the U.S. Department of State, “States have resource rights on the continental shelf where it extends beyond 200 nautical miles from the coast.”251 248 249

250 251

Article 1 of the 2000 Treaty establishes sixteen geodetic lines based on coordinates. Press Briefing by Arturo Valenzuela and Background Sheet, U.S. Department of State, June 9, 2000. “Background Information,” U.S. Department of State, June 9, 2000 at 1. Ibid.

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The total area of the “Western gap” is approximately 5,092 square nautical miles (17,467 square kilometers), an area slightly smaller than the state of New Jersey. The treaty boundary splits the “western gap” continental shelf in the following manner: the United States received 1,913 square nautical miles (6,562 square kilometers) or 38% of the total area; Mexico received 3,179 square nautical miles (10,905 square kilometers) or 62% of the total area.252 Although the submarine area of the “western gap” allocated to Mexico by the 2000 Treaty is considerably larger than the U.S. area, the mineral resources known to exist in that area may form what may be described as a “transfrontier submarine deposit of oil and natural gas.” Under international law, this deposit is characterized as a “transboundary reservoir” over which Mexico and the United States exercise “resource rights.” These rights, by the way, have not been precisely defined by this Treaty. Mexico is concerned that the United States, through the authorizations to be granted to U.S. oil companies to exploit this mineral resources, may start tapping not only the oil on the “American side” of the submarine deposit but also the oil in the “Mexican side,” since this deposit is a single deposit shared by two countries.253 Article IV (1) of the Treaty establishes a ten-year moratorium in a buffer zone whereby “no petroleum or natural gas drilling or exploitation of the continental shelf;” however, the moratorium expires on January 1, 2011. Possibly, the three most important questions Mexico and the United States must resolve regarding this Treaty are to determine, first, the precise location and amount of the mineral resources in that part of the gulf; second, the oil and natural gas distribution, if any, of this transboundary reservoir; and, third, the availability of the “ultra-deep technology” to commercially exploit this transboundary mineral deposit.254 The expectations in Mexico regarding the possibility of exploiting this transboundary mineral deposit are high. As a party to the 1982 U.N. Convention on the Law of the Sea, on December 2007, Mexico already made a claim before the Commission on the Limits of the Continental Shelf, which is following its 252 253

254

Id. at 2. In his bilingual press conference on June 9, 2000, Arturo Valenzuela, Special Assistant to President Clinton and Senior Director for Latin American Affairs of the National Security Council, stated that “Mexico is concerned that the U.S. might be drilling on its side, but taking oil, essentially, from the Mexican side. So, what the treaty does, really, it sets up a buffer zone within this demarcated area, so that it’s clear that each side is protecting its own underwater resources, subterranean resources.” Press Briefing, Presidential Hall, Old Executive Office Bldg., The White House, Office of the Press Secretary ( June 9, 2000) at 3. See Cruzando Límites. México ante los Desafíos de sus Yacimientos Transfronterizos (Crossing Boundaries. Mexico before the Challenges to its Transboundary Oil Deposits) by Juan E. Pardinas, Lourdes Melgar, Miriam Grunstein and David Enríquez. Prólogo por Lázaro Cárdenas Batel. Revista Mexicana de Energía, Foreign Affairs en Español. México, Diciembre (2007).

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course.255 At the domestic level, the Congress of the Union just enacted legislation that changed the legal and administrative structure of PEMEX (Petroleos Mexicanos), Mexico’s oil company, including its drilling and exploitation activities.

4. Conclusions The Federal Ocean Act of 1986 constitutes the very first statute to address the major law of the sea matters contained in the 1982 LOS Convention. The provisions of this federal statute closely follow the tenor of said convention, legally defining five different ocean spaces under the sovereignty, jurisdiction or control of Mexico. From a domestic perspective, the FOA incorporated nine novel legal accomplishments: 1) Regulation of the right of innocent passage; 2) Exercise of jurisdiction over artificial islands; 3) Utilization of minerals and other nontraditional resources of the marine environment, such as the waves and winds to generate energy, including solar energy; 4) Definition of the legal regime applicable to internal waters; 5) Creation of the contiguous zone; 6) Establishment of the EEZ, under a sui generis legal regime; 7) Enactment of legislation for the protection and preservation of the marine environment; 8) Definition the outer boundary of the continental shelf; and 9) Enunciation of the principles that govern the conduct of MSR pursuant to the 1982 LOS Convention (although in an incomplete and limited manner without establishing the legal regime applicable to marine scientific research in the marine zones under the jurisdiction and control of Mexico). FOA’s three fundamental objectives are: first, to codify, update and systematize Mexico’s numerous separate statutes relating to the uses and activities in the oceans; second, to attempt to introduce some technical legal uniformity in the terminology applicable to law of the sea matters; and third, to be in full compliance with the 1982 LOS Convention. Under Mexican law, certain details and technical matters inherent to the content of specific pieces of legislation are to be expanded and detailed through the enactment of the respective “Regulations.” With respect to FOA, there are numerous areas that require additional information to properly apply, distinguish and enforce this federal statute. However, the FOA’s “Regulations” are still awaiting to be enacted. This omission is regrettable and goes contrary to 255

See “Partial Submission of Data and Information on the Outer Limits of the Continental Shelf of the Mexican United States pursuant to Part VI of and Annex II to the United Nations Convention on the Law of the Sea,” (Part I), Executive Summary (December 2007), including three maps of the Gulf of Mexico (The other parts of the submission are confidential).

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Mexico’s traditional adherence to the principles of pacta sunt servanda and good faith in international law matters. However, the lack of enactment of these Regulations provides the Mexican federal authorities with a larger degree of exclusive and discretionary authority over law of the sea questions. Academically, the FOA constitutes part of the process of supplementing or even shaping the content of the language of the 1982 LOS Convention through the legislative practice adopted by States who have become a party to said international convention. In other words, the process of codification and progressive development of international law does not end with the mere formulation and signing of the 1982 LOS Convention but continues to be influenced by the practice of States as reflected in their domestic legislative enactments.

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Appendix Two Document 2.1 FEDERAL OCEANS ACT (Diario Oficial de la Federación of January 8, 1986) LEY FEDERAL DEL MAR

FEDERAL OCEANS ACT

TEXTO VIGENTE Nueva Ley publicada en el Diario Oficial de la Federación (DOF) el 8 de Enero de 1986 (Fe de erratas DOF January 9, 1986)

TEXT CURRENTLY IN FORCE New Act published in the Federal Official Gazette (DOF) on 8 January 1986 (Corrigendum DOF of January 9, 1986)

Al margen un sello con el Escudo Nacional. Que dice: Estados Unidos Mexicanos Presidencia de la Repdblica.

In the margin a stamp with the National Seal, that says: United Mexican States. Presidency of the Republic.

MIGUEL DE LA MADRID H., Presidente Constitucional de los Estados Unidos Mexicanos, a sus habitantes, sabed:

MIGUEL DE LA MADRID H., Constitutional President of the United Mexican States, to its inhabitants, makes known:

Que el H. Congreso de la Uni\n se ha servido Dirigirme el siguiente

That the Hon. Congress of the Union has seen fit to direct to me the following

DECRETO

DECREE

“El Congreso de los Estados Unidos Mexicanos, decreta:

“The Congress of the United Mexican States, decrees:

LEY FEDERAL DEL MAR

FEDERAL OCEANS ACT

TITULO PRIMERO Disposiciones Generales

FIRST TITLE General Provisions

CAPITULO I De los Ambitos de Aplicación de la Ley

CHAPTER I Scope of Application of the Law

ARTICULO 1. La presente Ley es reglamentaria de los párrafos Cuarto, Quinto, Sexto y Octavo del Artículo 27 de la Constitución Política de los Estados Unidos Mexicanos, en lo relativo a las zonas marinas mexicanas.

ARTICLE 1. This Act is a regulatory Act with regard to the Fourth, Fifth, Sixth and Eighth paragraphs of Article 27 of the Political Constitution of the United Mexican States, as they pertain to the Mexican marine zones.

ARTICULO 2. La presente Ley es de jurisdicción federal, rige en las zonas mari-

ARTICLE 2. This Act is of federal jurisdiction; it governs the marine zones that

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nas que forman parte del territorio nacional y, en lo aplicable, más allá de éste en las zonas marinas donde la Nación ejerce derechos de soberanía, jurisdicciones y otros derechos. Sus disposiciones son de orden público, en el marco del sistema nacional de planeación democrática.

are part of the national territory and, as applicable, the marine zones beyond this territory over which the Nation exercises sovereign rights, jurisdictions and other rights. Its provisions are of a public order, and fall under the framework of the national system of democratic planning.

ARTICULO 3. Las zonas marinas mexicanas son:

ARTICLE 3. The Mexican marine zones are:

a) b) c) d) e)

El Mar Territorial Las Aguas Marinas Interiores La Zona Contigua La Zona Económica Exclusiva La Plataforma Continental y las Plataformas Insulares y f ) Cualquier otra permitida por el derecho internacional.

a) b) c) d) e)

ARTICULO 4. En las zonas enumeradas en el Artículo anterior, la Nación ejercerá los poderes, derechos, jurisdicciones y competencias que esta misma Ley establece, de conformidad con la Constitución Política de los Estados Unidos Mexicanos y con el derecho internacional.

ARTICLE 4. In the zones enumerated in the preceding Article, the Nation shall exercise the powers, rights, jurisdictions and authority that this Act establishes, in accordance with the Political Constitution of the United Mexican States and with international law.

ARTICULO 5. Los Estados extranjeros y sus nacionales, al realizar actividades en las zonas marinas enumeradas en el Artículo 3o., observarán las disposiciones que para cada una de ellas establece la presente Ley, con los derechos y obligaciones consecuentes.

ARTICLE 5. Foreign States and their nationals, upon carrying out activities in the marine zones enumerated in Article 3, shall comply with the provisions that are established for each of them by this Act, with the corresponding rights and obligations.

ARTICULO 6. La soberanía de la Nación y sus derechos de soberanía, jurisdicciones y competencias dentro de Los límites de las respectivas zonas marinas, conforme a la presente Ley, se ejercerán según lo dispuesto por la Constitución Política de los Estados Unidos Mexicanos, el derecho internacional y la legislación nacional aplicable, respecto a:

ARTICLE 6. The sovereignty of the Nation and its sovereign rights, jurisdictions and authority within the limits of the respective marine zones, according to this Act, shall be exercised in accordance with the Political Constitution of the United Mexican States, international law and the applicable national legislation, regarding:

I. Las obras, islas artificiales, instalaciones y estructuras marinas; II. El régimen aplicable a los recursos marinos vivos, inclusive su conservación y utilización;

I. Works, artificial islands, installations and marine structures; II. The regime applicable to living marine resources, including their conservation and utilization;

The Territorial Sea The Internal Marine Waters The Contiguous Zone The Exclusive Economic Zone The Continental Shelf and Insular Shelves and Insular Shelves f ) Any other [zone] permitted by international law.

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III. El régimen aplicable a los recursos marinos no vivos, inclusive su conservación y utilización; IV. El aprovechamiento económico del mar, inclusive la utilización de minerales disueltos en sus aguas, la producción de energía eléctrica o térmica derivada de las mismas, de las corrientes y de los vientos, la captación de energía solar en el mar, el desarrollo de la zona costera, la maricultura, el establecimiento de parques marinos nacionales, la promoción de la recreación y el turismo y el establecimiento de comunidades pesqueras; V. La protección y preservación del medio marino, inclusive la prevención de su contaminación; y VI. La realización de actividades de investigación científica marina.

III. The regime applicable to non-living marine resources, including their conservation and utilization; IV. The economic utilization of the sea, including the utilization of minerals dissolved in its waters; the production of electrical or thermal energy derived from the waters, currents and winds; the harnessing of solar energy in the sea; the development of the coastal zone; aquaculture; the establishment of national marine parks; the promotion of recreation and tourism and the establishment of fishing communities; V. The protection and preservation of the marine environment, including the prevention of marine pollution; and VI. The conduct of marine scientific research activities.

ARTICULO 7. Corresponde al Poder Ejecutivo Federal la aplicación de esta Ley, a través de las distintas dependencias de la Administración Pública Federal que, de conformidad con la Ley Orgánica de ésta y demás disposiciones legales vigentes, son autoridades nacionales competentes según las atribuciones que confieren a cada una de ellas.

ARTICLE 7. The enforcement this Act, corresponds to the Federal Executive Power through the various agencies of the Federal Public Administration which, in accordance with its Organic Act and other pertinent legal provisions in force, are the competent national authorities by the powers vested in each of them.

ARTICULO 8. El Poder Ejecutivo Federal podrá negociar acuerdos con Estados vecinos, para la delimitación de las líneas divisorias entre las zonas marinas mexicanas y las correspondientes zonas colindantes de jurisdicción nacional marina de cada uno de ellos, en aquellos casos en que se produzca una superposición entre las mismas, de conformidad con el derecho internacional.

ARTICLE 8. The Federal Executive Power may negotiate agreements with neighboring States for the delimitation of the dividing lines between Mexican marine zones and the corresponding adjacent zones under the national marine jurisdiction of other states, in those cases where there is an overlap between said zones, in accordance with international law.

ARTICULO 9. No se extenderán las zonas marinas mexicanas más allá de una línea media, cuyos puntos sean equidistantes de los puntos más próximos de las líneas de base a partir de las cuales se mida la anchura del Mar Territorial de un Estado vecino, salvo acuerdo en contrario con ese Estado.

ARTICLE 9. The Mexican marine zones shall not extend beyond a median line, whose points are equidistant from the nearest points of the baselines from which the width of the territorial sea of a neighboring State is measured, except when otherwise agreed upon with that State.

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El Poder Ejecutivo Federal no reconocerá la extensión unilateral de las zonas marinas de un Estado vecino, más allá de una línea media, cuyos puntos sean equidistantes de los puntos más próximos de las líneas de base a partir de las cuales se mide la anchura del Mar Territorial mexicano. En estos casos, el Poder Ejecutivo Federal buscará la negociación con el Estado vecino en cuestión, a fin de acordar una solución recíprocamente aceptable.

The Federal Executive Power shall not recognize the unilateral extension of the marine zones of a neighboring State, beyond the median line, every point of which is equidistant to the closest points of the baselines from which the width of the Mexican Territorial Sea is measured. In these cases, the Federal Executive Power shall seek to negotiate with the neighboring State in question in order to reach a mutually acceptable solution.

ARTICULO 10. El goce de los derechos que esta Ley dispone a favor de embarcaciones extranjeras, depende de que exista reciprocidad, con el Estado cuya bandera enarbolan, a favor de las embarcaciones nacionales, y siempre que se esté dentro de lo dispuesto por la Constitución Política de los Estados Unidos Mexicanos y por el derecho internacional.

ARTICLE 10. The enjoyment of the rights that this Act prescribes for foreign vessels depends on the granting of reciprocity, by the corresponding flag State, in favor of national vessels, and provided this is in accordance with the provisions of the Political Constitution of the United Mexican States and with international law.

ARTICULO 11. El Poder Ejecutivo Federal se asegurará de que las relaciones marítimas con otros Estados se lleven a cabo bajo el principio de la reciprocidad internacional, mismo que aplicará tanto en cuanto a las zonas marinas mexicanas como a las establecidas por esos Estados, respecto a cualquier actividad realizada por ellos o por sus nacionales con estricto apego al derecho internacional.

ARTICLE 11. The Federal Executive Power shall ensure that the maritime relations with other States shall take place under the principle of international reciprocity, applied both to the Mexican marine zones as well as to those established by those States, with regard to any activity undertaken by such States or their nationals, in strict compliance with international law.

ARTICULO 12. El reconocimiento de la Nación a los actos de delimitación de las zonas marinas de otros Estados, se hará con estricto apego a las normas del derecho internacional y con base en la reciprocidad.

ARTICLE 12. The recognition by the Nation of delimitation acts of marine zones of other States shall be made in strict compliance with international law and on the basis of reciprocity.

ARTICULO 13. El Poder Ejecutivo Federal se asegurará de que las autoridades nacionales competentes observen las normas internacionales aplicables que reconocen el derecho de los países sin litoral para enarbolar un pabellón.

ARTICLE 13. The Federal Executive Power shall ensure that the competent national authorities observe the applicable international rules recognizing the right of landlocked States to flag a vessel.

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CAPITULO II

CHAPTER II

De las Instalaciones Marítimas

Maritime Installations

ARTICULO 14. Las islas artificiales, instalaciones y estructuras no tienen Mar Territorial propio y su presencia no afecta la delimitación del Mar Territorial, de la Zona Económica Exclusiva o de la Plataforma Continental.

ARTICLE 14. Artificial islands, installations and structures do not have a territorial sea of their own and their presence does not affect the delimitation of the Territorial Sea, the Exclusive Economic Zone or the Continental Shelf.

ARTICULO 15. La Nación tiene jurisdicción exclusiva sobre las islas artificiales, instalaciones y estructuras en la Zona Económica Exclusiva y en la Plataforma Continental y en las Plataformas Insulares, incluida la jurisdicción en materia de reglamentos aduaneros, fiscales, sanitarios, de seguridad y de inmigración.

ARTICLE 15. The Nation has exclusive jurisdiction over artificial islands, installations and structures in the Exclusive Economic Zone, and in the Continental Shelf and Insular Continental Shelves, including jurisdiction with regard to customs, tax, sanitary, safety and immigration matters.

ARTICULO 16. La Nación tiene derecho exclusivo en las zonas marinas mexicanas, de construir, así como el de autorizar y reglamentar la construcción, operación y utilización de islas artificiales, de instalaciones y estructuras, de conformidad con la presente Ley, la Ley General de Bienes Nacionales, la Ley de Obras Públicas y demás disposiciones aplicables en vigor.

ARTICLE 16. The Nation has exclusive rights in the Mexican marine zones, to construct as well as to authorize and regulate the construction, operation and utilization of artificial islands, installations and structures, in accordance with this Act, the General Act on National Assets, the Public Works Act and other applicable provisions in force.

ARTICULO 17. La construcción, instalación, conservación, mantenimiento, reparación y demolición de los bienes inmuebles dedicados a la exploración, localización, perforación, extracción y desarrollo de recursos marinos, o destinados a un servicio público o al uso común en las zonas marinas mexicanas, deberá hacerse observando las disposiciones legales vigentes en la materia.

ARTICLE 17. The construction, installation, conservation, maintenance, reparation and demolition of immovable property for purposes of exploration, localization, drilling, extraction and development of marine resources, or for public service or common use in the Mexican marine zones, shall be done while observing the legal provisions in force on these matters.

CAPITULO III

CHAPTER III

De los Recursos y del Aprovechamiento Económico del Mar

Resources and Economic Utilization of the Sea

ARTICULO 18. La aplicación de la presente Ley se llevará a cabo en estricta observancia de la legislación sobre pesca,

ARTICLE 18. The enforcement of this Act shall be done in strict observance of the fishing legislation, the regulations

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de las disposiciones emanadas de ella y otras aplicables, en cuanto a medidas de conservación y utilización por nacionales o extranjeros de los recursos vivos en las zonas marinas mexicanas.

adopted therewith and others applicable, regarding the conservation and utilization of the living resources by nationals and foreigners in the Mexican marine zones.

ARTICULO 19. La exploración, explotación, beneficio, aprovechamiento, refinación, transportación, almacenamiento, distribución y venta de los hidrocarburos y minerales submarinos, en las zonas marinas mexicanas, se rige por las Leyes Reglamentarias del Artículo 27 Constitucional en el Ramo del Petróleo y en Materia Minera y sus respectivos Reglamentos, así como por las disposiciones aplicables de la presente Ley.

ARTICLE 19. The exploration, exploitation, benefit, utilization, refining, transport, storage, distribution, and sale of hydrocarbons and submarine minerals in the Mexican marine zones, shall be governed by the Reglamentary Acts of Article 27 of the Constitution regarding Oil Matters and Mineral Matters and by their respective Regulations, as well as the applicable provisions of this Act.

ARTICULO 20. Cualquier acticvidad que implique la explotación, uso y aprovechamiento económico de las zonas marinas mexicanas, distintas de las previstas en los dos Artículos anteriores del presente Título, se rigen por las disposiciones reglamentarias de los párrafos cuarto, quinto y sexto del Artículo 27 de la Constitución Política de los Estados Unidos Mexicanos, así como por la presente Ley y las demás leyes y reglamentos aplicables.

ARTICLE 20. Any activities involving the exploitation, use and economic utilization of Mexican marine zones, other than those provided in the two preceding Articles of this Title, shall be governed by the legislative enactments pertaining to the fourth, fifth and sixth paragraphs of Article 27 of the Political Constitution of the United Mexican States, as well as by this Act and any other applicable laws and Regulations.

CAPITULO IV

CHAPTER IV

De la Protección y Preservación del Medio Marino y de la Investigación Científica Marina

Protection and Preservation of the Marine Environment and Marine Scientific Research

ARTICULO 21. En el ejercicio de los poderes, derechos, jurisdicciones y competencias de la Nación dentro de las zonas marinas mexicanas, se aplicarán la Ley Federal de Protección al Ambiente, la Ley General de Salud, y sus respectivos Reglamentos, la Ley Federal de Aguas y demás leyes y reglamentos aplicables vigentes o que se adopten, incluidos la presente Ley, su reglamento y las normas pertinentes del derecho internacional para prevenir, reducir y controlar la contaminación del medio marino.

ARTICLE 21. In exercise of the powers, rights, jurisdictions and authority of the Nation within its Mexican marine zones, the General Act of Ecological Balance and Protection of the Environment, the General Health Act, and their respective regulations, the Federal Water Act, and other applicable laws and regulations in force or that may be enacted, including this Act, its regulations and the pertinent rules of international law shall be applied with a view to preventing, reducing and controlling pollution of the marine environment.

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ARTICULO 22. En la realización de actividades de investigación científica en las zonas marinas mexicanas, se aplicarán los siguientes principios:

ARTICLE 22. In conducting scientific research activities in Mexican marine zones, the following principles will apply:

I.

I.

II.

III.

IV. V.

VI.

VII.

Se realizarán exclusivamente con fines pacíficos. Se realizarán con métodos y medios científicos adecuados, compatibles con la presente Ley y demás leyes aplicables y con el derecho internacional. No interferirán injustificadamente con otros usos legítimos del mar compatibles con esta Ley y con el derecho internacional. Se respetarán todas las leyes y reglamentos pertinentes a la protección y preservación del medio marino. No constituirán fundamento jurídico para ninguna reivindicación sobre parte alguna del medio marino o sus recursos. Cuando conforme a la presente Ley sean permitidos para su realización por extranjeros se asegurará el mayor grado posible de participación nacional, y En el caso de la fracción anterior, la Nación se asegurará que se le proporcionen los resultados de la investigación y, si así lo solicita, la asistencia necesaria para su interpretación y evaluación.

II.

III.

IV. V.

VI.

VII.

Such activities shall be conducted for peaceful purposes only. They shall be conducted with adequate scientific methods and means, compatible with this Act and with international law. They shall not interfere unjustifiably with other lawful uses of the sea compatible with this Act and international law. All laws applicable to the protection and preservation of the marine environment shall be observed. They shall not constitute a legal basis for any claim on any part of the marine environment or its resources. When, in accordance with this Act, foreigners are permitted to conduct such activities, national participation shall be provided to the greatest extent possible. In the case of the preceding section, the Nation shall ensure to be provided the results of said research and, when requested, with the assistance necessary for its interpretation and evaluation of said results.

TITULO SEGUNDO De las Zonas Marinas Mexicanas

SECOND TITLE Mexican Marine Zones

CAPITULO I Del Mar Territorial

CHAPTER I Territorial Sea

ARTICULO 23. La Nación ejerce soberanía en una franja del mar, denominada Mar Territorial, adyacente tanto a las costas nacionales, sean continentales o insulares, como a las Aguas Marinas Interiores.

ARTICLE 23. The Nation exercises sovereignty over a marine belt known as the Territorial Sea, adjacent to the national coastlines, whether continental or insular, as well as over the Internal Marine Waters.

ARTICULO 24. La soberanía de la Nación se extiende al espacio aéreo sobre el Mar Territorial, al lecho y al subsuelo de ese Mar.

ARTICLE 24. The sovereignty of the Nation extends to the airspace over the territorial sea, and to the seabed and subsoil of said sea.

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ARTICULO 25. La anchura del Mar Territorial mexicano, es de 12 millas marinas (22,224 metros), medidas de conformidad con las disposiciones de esta Ley y su Reglamento.

ARTICLE 25. The width of the Mexican territorial sea is 12 nautical miles (22,224 meters), measured in accordance with the provisions of this Act and its regulations.

ARTICULO 26. Los límites del Mar Territorial se miden a partir de líneas de base, sean normales o rectas, o una combinación de las mismas, determinadas de conformidad con las disposiciones del Reglamento de la presente Ley.

ARTICLE 26. The [outer] boundaries of the territorial sea are measured from the baselines, whether normal or straight, or a combination thereof, determined in accordance with the provisions of the Regulations of this Act.

ARTICULO 27. El límite exterior del Mar Territorial es la línea cada uno de cuyos puntos está a una distancia de 12 millas marinas (22,224 metros), del punto más próximo de las líneas que constituyan su límite interior, determinadas de conformidad con el Artículo 26 de esta Ley y con las disposiciones pertinentes de su Reglamento.

ARTICLE 27. The outer boundary of the territorial sea is the line every point of which is at a distance of 12 nautical miles (22,224 meters), from the nearest point of the lines forming its landward limit, determined in accordance with Article 26 of this Act and the relevant provisions of its Regulations.

ARTICULO 28. Cualquier esclavo que ingrese al Mar Territorial en una embarcación extranjera alcanzará, por ese solo hecho, su libertad y la protección de las leyes, en los términos del Artículo 2 de la Constitución Política de los Estados Unidos Mexicanos.

ARTICLE 28. Any slave who enters the territorial sea in a foreign vessel shall, by that act alone, gain his/her freedom and the protection of the laws, as prescribed by Article 2 of the Political Constitution of the United Mexican States.

ARTICULO 29. Las embarcaciones de todos los Estados, sean ribereños o sin litoral, gozan del derecho de paso inocente a través del Mar Territorial mexicano.

ARTICLE 29. The vessels of all States, whether coastal or landlocked, enjoy the right of innocent passage through the Mexican territorial sea.

ARTICULO 30. Cuando una embarcación de guerra extranjera no cumpla las normas de esta Ley, de su Reglamento y de otras disposiciones legales nacionales relativas al paso por el Mar Territorial, y no acate la invitación que se le haga para que las cumpla, podrá exigírsele que salga inmediatamente del Mar Territorial mexicano.

ARTICLE 30. When a foreign warship does not comply with the provisions of this Act, its regulations, or other legal provisions relating to the passage through the territorial sea, and disregards a request for compliance therewith, it may be required to leave the Mexican Territorial Sea immediately.

ARTICULO 31. El Poder Ejecutivo Federal exigirá la responsabilidad del Estado del pabellón por cualquier pérdida o daño

ARTICLE 31. The Federal Executive Power shall require that the flag State bear responsibility for any loss or damage to

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que sufra la Nación como resultado del incumplimiento por una embarcación de guerra u otra embarcación de Estado destinada a fines no comerciales, de las leyes y reglamentos nacionales relativos al paso por el Mar Territorial o de las disposiciones de esta Ley, su Reglamento y otras normas aplicables de derecho internacional. (Fe de erratas al artículo DOF January 9, 1986).

the Nation resulting from the noncompliance by a warship or other State vessel operated for non-commercial purposes; with the national laws and regulations concerning passage through the territorial sea or with the provisions of this Act, its Regulations or other applicable rules of international law. (Corrigendum DOF January 9, 1986).

ARTICULO 32. Con las excepciones previstas en las disposiciones de este Título, ninguna disposición de esta Ley afectará a las inmunidades a que tienen derecho las embarcaciones extranjeras de guerra y otras embarcaciones de Estado destinadas a fines no comerciales, por estar sujetas sólo a la jurisdicción del Estado de su pabellón y, con base en la reciprocidad a las embarcaciones de Estado destinadas a fines comerciales.

ARTICLE 32. With the exceptions prescribed by the provisions of this Title, nothing in this Act shall affect the immunities to which foreign warships and other State vessels operated for non-commercial purposes, are entitled as falling exclusively under the jurisdiction of the flag State, provided there is reciprocity with regard to State vessels operated for commercial purposes.

ARTICULO 33. El sobrevuelo de aeronaves extranjeras en el Mar Territorial está sujeto a las leyes nacionales, de conformidad con las obligaciones internacionales de los Estados Unidos Mexicanos en la materia y su inspección, vigilancia y control quedan sujetas exclusivamente a la jurisdicción y competencia del Poder Ejecutivo Federal, en los términos de la Ley de Vías Generales de Comunicación y otras disposiciones legales vigentes.

ARTICLE 33. Flights of foreign aircraft over the Territorial Sea shall be subject to national laws, in accordance with the international obligations of the United Mexican States on this matter and the inspection, surveillance and control shall be subject to the exclusive jurisdiction of the Federal Executive Power, as prescribed by the General Means of Communications Act and other legal provisions in force.

CAPITULO II

CHAPTER II

De las Aguas Marinas Interiores

Internal Marine Waters

ARTICULO 34. La Nación ejerce soberanía en las áreas del mar denominadas Aguas Marinas Interiores, comprendidas entre las costas nacionales, tanto continentales como insulares, y el Mar Territorial mexicano.

ARTICLE 34. The Nation exercises sovereignty in the areas of the sea known as Internal Marine Waters, located between the national coasts, both continental and insular, and the Mexican Territorial Sea.

ARTICULO 35. La soberanía de la Nación se extiende al espacio aéreo sobre las Aguas Marinas Interiores, al lecho y al subsuelo de esas aguas.

ARTICLE 35. The sovereignty of the Nation extends to the airspace over the Internal Marine Waters as well as to their seabed and subsoil.

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ARTICULO 36. Son aguas Marinas Interiores aquellas comprendidas entre la costa y las líneas de base, normales o rectas, a partir de las cuales se mide el Mar Territorial, de conformidad con las disposiciones pertinentes del Reglamento de la presente Ley y que incluyen:

ARTICLE 36. Internal Marine Waters are those between the coast and the normal or straight baselines from which the territorial sea is measured, in accordance with the pertinent provisions of the [implementing] Regulations of this Act. They include:

I. II. III. IV. V.

I.

La parte norte del Golfo de California; Las de las bahías internas; Las de los puertos; Las internas de los arrecifes; y Las de las desembocaduras o deltas de los ríos, lagunas y estuarios comunicados permanente o intermitentemente con el mar.

II. III. IV. V.

The northern part of the Gulf of California; Those in the inland bays; Those in the ports; Those on the landward side of reefs; and Waters in the mouths or deltas of rivers, lagoons and estuaries connected permanently or intermittently with the sea.

ARTICULO 37. El límite interior de las Aguas Marinas Interiores coincide con la línea de bajamar a lo largo de la costa, cuando esta línea no se toma como base para medir el Mar Territorial de conformidad con las disposiciones en el Reglamento de la presente Ley, tal como aparezca en las cartas a gran escala reconocidas oficialmente por los Estados Unidos Mexicanos.

ARTICLE 37. The internal boundary of the Internal Marine Waters coincides with the low water mark along the coast, when this line is not used as a baseline for measuring the Territorial Sea in accordance with the Regulations of this Act, as shown on large-scale charts officially recognized by the United Mexican States.

ARTICULO 38. Para los efectos del límite interior de las Aguas Marinas Interiores, la línea de bajamar es la línea de mayor flujo y reflujo donde llegan las aguas marinas en un momento dado a lo largo de las costas continentales o insulares de la Nación.

ARTICLE 38. For the purposes of [determining] the landward boundary of the Internal Marine Waters, the low water mark is the line with the greatest ebb and flow of marine waters at a given moment along the continental or insular coasts of the Nation.

ARTICULO 39. El límite exterior de las Aguas Marinas Interiores coincide idénticamente con las líneas de base a partir de las cuales se mide el mar Territorial, tal como aparezca en las cartas a gran escala reconocidas oficialmente por los Estados Unidos Mexicanos.

ARTICLE 39. The outer boundary of the Internal Marine Waters coincides exactly with the baselines from which the Territorial Sea is measured, as shown on largescale charts officially recognized by the United Mexican States.

ARTICULO 40. La delimitación de Aguas Marinas Interiores en Zonas de colindancia con zonas marinas de jurisdicción

ARTICLE 40. The delimitation of Internal Marine Waters in zones adjacent to marine zones under national jurisdiction

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nacional de Estados vecinos, se considerará comprendida en la delimitación que sea fijada o acordada para la línea divisoria entre el Mar Territorial mexicano y el Mar Territorial u otras zonas marinas de jurisdicción nacional de esos Estados vecinos, de conformidad con los Artículos 8o. y 9o. de esta Ley y con las disposiciones pertinentes de su reglamento.

of neighboring States, shall be considered as being comprised in the delimitation established or agreed upon for the boundary between the Mexican Territorial Sea and the Territorial Sea or other marine zones under the national jurisdiction of those neighboring States, in accordance with Articles 8 and 9 of this Act and with the pertinent provisions of its Regulations.

ARTICULO 41. Las embarcaciones extranjeras que naveguen en las Aguas Marinas Interiores quedan sujetas, por ese solo hecho, al cumplimiento de esta Ley, de su Reglamento y de las demás disposiciones legales aplicables de la República.

ARTICLE 41. Foreign vessels navigating in Internal Marine Waters are subject, by that act alone, to the provisions of this Act, its Regulations, and other applicable legal provisions of the Republic.

CAPITULO III

CHAPTER III

De la Zona Contigua

The Contiguous Zone

ARTICULO 42. La Nación tiene en una zona contigua a su Mar Territorial, designada con el nombre de Zona Contigua, competencia para tomar las medidas de fiscalización necesarias con el objeto de:

ARTICLE 42. The Nation has in a zone contiguous to its territorial sea, designated as the Contiguous Zone, the authority to exercise the necessary control to:

I. Prevenir las infracciones de las normas aplicables de esta Ley, de su Reglamento y de las leyes y reglamentos aduaneros, fiscales, de inmigración o sanitarios que pudieren cometerse en el territorio, en las Aguas Marinas Interiores o en el Mar Territorial mexicanos; y II. Sancionar las infracciones a dichas normas aplicables de esta Ley, de su Reglamento y de esas leyes y reglamentos cometidas en el territorio, en las Aguas Marinas Interiores o en el Mar Territorial.

I. Prevent any infringement to the applicable provisions of this Act, its Regulations, as well as customs, fiscal, immigration or health laws and regulations that may take place in the territory, Internal Marine Waters or in the Mexican Territorial Sea; and II. Punish any infringement of the applicable rules of this Act, and of its Regulations, and of said laws and regulations that may be committed within its territory, the Internal Marine Waters or the Mexican Territorial Sea.

ARTICULO 43. La Zona Contigua de México se extiende a 24 millas marinas (44,448 metros), contadas desde las líneas de base a partir de las cuales, de conformidad con el Artículo 26 de esta Ley, y con las disposiciones pertinentes de su Reglamento, se mide la anchura del Mar Territorial mexicano.

ARTICLE 43. The Contiguous Zone of Mexico extends out to 24 nautical miles (44,448 meters), measured from the baselines from which, in accordance with Article 26 of this Act and the pertinent provisions of its Regulations, the width of the Mexican Territorial Sea is measured.

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ARTICULO 44. El límite interior de la Zona Contigua coincide idénticamente con el límite exterior del Mar Territorial, determinado este último de conformidad con el Artículo 27 de la presente Ley y con las disposiciones pertinentes de su Reglamento y que aparezcan en las cartas reconocidas oficialmente por los Estados Unidos Mexicanos.

ARTICLE 44. The internal boundary of the Contiguous Zone coincides exactly with the outer limit of the Territorial Sea, as established in accordance with Article 27 of this Act and the pertinent provisions of its Regulations, and as shown on charts officially recognized by the United Mexican States.

ARTICULO 45. El límite exterior de la Zona Contigua mexicana, es la línea cada uno de cuyos puntos está, del punto más próximo de las líneas de base del Mar Territorial determinadas en el Artículo 26 de esta Ley, a una distancia de 24 millas marinas (44,448 metros).

ARTICLE 45. The outer boundary of the Mexican Contiguous Zone is the line every point of which is at a distance of 24 nautical miles (44,448 meters) from the nearest point of the Territorial Sea baselines, as determined by Article 26 of this Act.

CAPITULO IV

CHAPTER IV

De la Zona Económica Exclusiva

Exclusive Economic Zone

ARTICULO 46. La Nación ejerce en una Zona Económica Exclusiva situada fuera del Mar Territorial y adyacente a éste:

ARTICLE 46. The Nation shall exercise in an Exclusive Economic Zone situated beyond and adjacent to the Territorial Sea:

I. Derechos de soberanía para los fines de exploración y explotación, conservación y administración de los recursos naturales, tanto vivos como no vivos, ya sean renovables o no renovables, del lecho y el subsuelo del mar y de las aguas suprayacentes, y con respecto a otras actividades con miras a la exploración y explotación económica de la Zona, tal como la producción de energía derivada del agua, de las corrientes y de los vientos; II. Jurisdicción, con relación a las disposiciones pertinentes de esta Ley, de su Reglamento y del derecho internacional, con respecto:

I. Sovereignty rights for the purpose of exploration and exploitation, conservation and management of the natural resources, whether living or non-living, renewable or non-renewable, of the seabed and subsoil and the superjacent waters, and with regard to other activities for the economic exploration and utilization of the Zone, such as the production of energy from water, currents, and winds; II. Jurisdiction, with regard to the pertinent provisions of this Act, its Regulations and of international law, with respect to:

1. Al establecimiento y utilización de islas artificiales, instalaciones y estructuras; 2. A la investigación científica marina; y 3. A la protección y preservación del medio marino; y

1. The establishment and utilization of artificial islands, installations, and structures; 2. Marine scientific research; and 3. The protection and preservation of the marine environment; and

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III. Otros derechos y deberes que fije esta Ley, su Reglamento y el derecho internacional.

III. Other rights and duties established by this Act, its Regulations, and international law.

ARTICULO 47. El Poder Ejecutivo Federal se asegurará de que, en el ejercicio de los derechos y jurisdicciones y en el cumplimiento de los deberes de la Nación en la Zona Económica Exclusiva, se tomen debidamente en cuenta los derechos y deberes de los demás Estados y se actúe de manera compatible con el derecho internacional.

ARTICLE 47. The Federal Executive Power shall ensure that in exercising the rights and jurisdictions and in performing the duties of the Nation in the Exclusive Economic Zone, the rights and duties of other States are duly considered and that it acts in a manner compatible with international law.

ARTICULO 48. El Poder Ejecutivo Federal respetará el goce de los Estados extranjeros, en la Zona Económica Exclusiva, de las libertades de navegación, de sobrevuelo y de tender cables y tuberías submarinos, así como de los otros usos del mar internacionalmente legítimos relacionados con dichas libertades, tales como los vinculados a la operación de embarcaciones, aeronaves, y cables y tuberías submarinos, y que sean compatibles con el derecho internacional.

ARTICLE 48. The Federal Executive Power shall respect the freedoms enjoyed by foreign States in the Exclusive Economic Zone, to freely navigate, fly over, and lay submarine cables and pipelines, as well as other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with international law.

ARTICULO 49. El Poder Ejecutivo Federal vigilará que, al ejercitar los Estados extranjeros sus derechos y al cumplir sus deberes en la Zona Económica Exclusiva mexicana, tengan debidamente en cuenta los derechos, jurisdicciones y deberes de la Nación y cumplan esta Ley, su Reglamento y otros reglamentos nacionales adoptados de conformidad con la Constitución y normas aplicables de derecho internacional.

ARTICLE 49. The Federal Executive Power shall ensure that, in exercising their rights and performing their duties in the Mexican Exclusive Economic Zone, foreign States shall have due regard to the rights, jurisdictions and duties of the Nation and comply with this Act, its Regulations, and other regulations adopted in accordance with the Constitution and applicable rules of international law.

ARTICULO 50. La Zona Económica Exclusiva Mexicana se extiende a 200 millas marinas (370,400 metros) contadas desde las líneas de base a partir de las cuales, de conformidad con el Artículo 26 de esta Ley, se mide la anchura del Mar Territorial.

ARTICLE 50. The Mexican Exclusive Economic Zone extends out to 200 nautical miles (370,400 meters) measured from the baselines from which the width of the Territorial Sea is measured, as established by Article 26 of this Act.

ARTICULO 51. Las islas gozan de zona económica exclusiva pero no así las

ARTICLE 51. Islands have an Exclusive Economic Zone but not the rocks which

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rocas no aptas para mantener habitación humana o vida económica propia.

cannot sustain human habitation or economic life of their own.

ARTICULO 52. El límite interior de la Zona Económica Exclusiva coincide idénticamente con el límite exterior del Mar Territorial, determinado de conformidad con el Artículo 26 de esta Ley, y con las disposiciones pertinentes de su Reglamento, y que aparezca en las cartas reconocidas oficialmente por los Estados Unidos Mexicanos.

ARTICLE 52. The internal limit of the Exclusive Economic Zone coincides exactly with the outer limit of the Territorial Sea, as established in accordance with Article 26 of this Act, and with the pertinent provisions of its Regulations, and as shown on charts officially recognized by the United Mexican States.

ARTICULO 53. El límite exterior de la Zona Económica Exclusiva mexicana es la línea cada uno de cuyos puntos está del punto más próximo de las líneas de base del Mar Territorial determinadas en el Artículo 26 de esta Ley, a una distancia de 200 millas marinas (370,400 metros).

ARTICLE 53. The outer limit of the Mexican Exclusive Economic Zone is the line every point of which is at a distance of 200 nautical miles (370,400 meters) from the nearest point on the baselines of the Territorial Sea, as established in Article 26 of this Act.

ARTICULO 54. El límite exterior de la Zona Económica Exclusiva, en consecuencia, está constituido por una serie de arcos que unen los puntos cuyas coordenadas geográficas fueron publicadas por Decreto en el Diario Oficial de la Federación, el 7 de junio de 1976, y que aparezcan en las cartas oficialmente reconocidas por los Estados Unidos Mexicanos.

ARTICLE 54. Consequently, the outer limit of the Exclusive Economic Zone, therefore, is comprised by a series of arcs that join the points whose geographic coordinates were published by decree in the Official Daily of the Federation on 7 June 1976, and are shown in the charts officially recognized by the United Mexican States.

ARTICULO 55. El Poder Ejecutivo Federal velará porque se respete, con sujeción a las disposiciones pertinentes de esta Ley, de su Reglamento y del derecho internacional, las libertades de navegación y sobrevuelo, en la Zona Económica Exclusiva mexicana por las embarcaciones y aeronaves de todos los Estados, sean ribereños o sin litoral.

ARTICLE 55. The Federal Executive Power shall ensure respect, subject to the pertinent provisions of this Act, of its Regulations and international law, for the freedoms of navigation and overflight in the Mexican Exclusive Economic Zone by the ships and aircraft of all States, whether coastal or landlocked.

ARTICULO 56. El Poder Ejecutivo Federal dictará medidas adecuadas de administración y conservación para que los recursos vivos no se vean amenazados por una explotación excesiva, determinará la captura permisible de recursos vivos en la Zona Económica Exclusiva y, sin perjuicio de lo anterior, promoverá la utiliza-

ARTICLE 56. The Federal Executive Power shall establish adequate measures for the management and conservation to ensure that living resources are not threatened by overexploitation; shall determine the allowable catch of living resources in the Exclusive Economic Zone and, without prejudice to the foregoing, shall

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ción óptima de dichos recursos. Cuando el total de la captura permisible de una especie sea mayor que la capacidad para pescar y cazar de las embarcaciones nacionales, el Poder Ejecutivo Federal dará acceso a embarcaciones extranjeras al excedente de la captura permisible de acuerdo con el interés nacional y bajo las condiciones que señale la legislación mexicana de pesca.

promote the optimum utilization of said resources. When the total allowable catch of a species is greater than the fishing and hunting capacity of Mexican vessels, the Federal Executive Power shall give foreign ships access to the surplus of the allowable catch in accordance with the national interest and under the conditions established by Mexican fishing legislation.

CAPITULO V

CHAPTER V

De la Plataforma Continental o Insular

Continental or Insular Shelves

ARTICULO 57. La Nación ejerce derechos de soberanía sobre la Plataforma Continental y las Plataformas Insulares a los efectos de su exploración y de la explotación de sus recursos naturales.

ARTICLE 57. The Nation exercises sovereign rights over the Continental Shelf and Insular Shelves for the purpose of the exploration and exploitation of their natural resources.

ARTICULO 58. Los derechos de soberanía de la Nación a que se refiere el Artículo anterior son exclusivos, en el sentido de que si México no explora la Plataforma Continental y las Plataformas Insulares o no explota sus recursos naturales, nadie puede emprender estas actividades sin expreso consentimiento de las autoridades nacionales competentes.

ARTICLE 58. The sovereign rights of the Nation referred to the preceding Article are exclusive, in the sense in that if Mexico does not explore the Continental Shelf and the Insular Shelves or exploit their natural resources, no one may undertake these activities without express consent of the competent national authorities.

ARTICULO 59. Los derechos de soberanía de la Nación a que se refiere el Artículo 57 son independientes de la ocupación real o ficticia de la Plataforma Continental y de las Plataformas Insulares.

ARTICLE 59. The sovereign rights of the Nation referred to in Article 57 are independent of the real or fictitious occupation of the Continental Shelf and Insular Shelves.

ARTICULO 60. Los derechos de la Nación sobre la Plataforma Continental y las Plataformas Insulares no afectan la condición jurídica de las aguas suprayacentes, ni la del espacio aéreo situado sobre tales aguas.

ARTICLE 60. The rights of the Nation over the Continental Shelf and Insular Shelves do not affect the legal status of the superjacent waters or the air space above those waters.

ARTICULO 61. El ejercicio de los derechos de la Nación sobre la Plataforma Continental y las Plataformas Insulares no deberá afectar la navegación y otros derechos y libertades de los demás Estados, previstos en esta Ley, en su Reglamento

ARTICLE 61. The exercise of the rights of the Nation over the Continental Shelf and Insular Shelves shall not affect the navigation and other rights and freedoms of other States, as provided for in this Act, its Regulations and in international law,

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y según el derecho internacional ni tener como resultado una injerencia injustificada en ellos.

nor shall it result in unjustified interference [with such rights and freedoms].

ARTICULO 62. La Plataforma Continental y las Plataformas Insulares mexicanas, comprenden el lecho y el subsuelo de las áreas submarinas que se extienden más allá del mar territorial, y a todo lo largo de la prolongación natural del territorio nacional hasta el borde exterior del margen continental, o bien hasta una distancia de 200 millas marinas contadas desde las líneas de base a partir de las cuales se mide la anchura del mar territorial, en los casos de que el borde exterior del margen continental no llegue a esa distancia, de acuerdo con lo dispuesto por el derecho internacional. La definición anterior comprende la plataforma de islas, cayos y arrecifes que forman parte del territorio nacional. (Fe de erratas, DOF de Febrero 9 de 1986)

ARTICLE 62. The Mexican Continental Shelf and Insular Shelves, comprise the seabed and subsoil of the submarine areas that extend beyond its Territorial Sea, and throughout the natural prolongation of its national territory to the outer edge of the continental margin or to a distance of 200 nautical miles from the baselines from which the width of the Territorial Sea is measured, where the outer edge of the continental margin does not extend up to that distance, in accordance to what is prescribed by international law. The previous definition includes the shelves of islands, cays and reefs that from part of the national territory. (Corrigendum DOF of January 9, 1986)

ARTICULO 63. Las islas gozan de Plataforma Insular, pero no así las rocas no aptas para mantener habitación humana o vida económica propia.

ARTICLE 63. Islands have Insular Shelves, but not the rocks which cannot sustain human habitation or economic life of their own.

ARTICULO 64. El límite interior de la Plataforma Continental y de las Plataformas Insulares mexicanas coinciden idénticamente con el límite exterior del suelo del Mar Territorial determinado de conformidad con el Artículo 26 de esta Ley y con las disposiciones pertinentes de su Reglamento, y según aparezca en las cartas oficialmente reconocidas por los Estados Unidos Mexicanos.

ARTICLE 64. The landward boundary of the Mexican Continental Shelf and Insular Shelves coincides exactly with the outer limit of the subsoil of the Territorial Sea, as established in accordance with Article 26 of this Act and the pertinent provisions of its Regulations, and as shown in the charts officially recognized by the United Mexican States.

ARTICULO 65. En los lugares donde el borde exterior del margen continental de la Plataforma Continental y de las Plataformas Insulares no llegue a 200 millas marinas contadas desde las líneas de base a partir de las cuales se mide el Mar Territorial, el límite exterior de las citadas Plataformas coincidirá idénticamente

ARTICLE 65. In places where the outer edge of the continental margin of the Continental Shelf and Insular Shelves does not extend up to 200 nautical miles from the baselines from which the Territorial Sea is measured, the outer limit of the aforementioned shelves shall coincide exactly with the outer limit of the subsoil

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con el límite exterior del suelo de la Zona Económica Exclusiva, determinado conforme a lo previsto en los Artículo 53 y 54 de esta Ley, y que aparezca en las cartas oficialmente reconocidas por los Estados Unidos Mexicanos.

of the Exclusive Economic Zone, as established in accordance with the provisions of Articles 53 and 54 of this Act, and as shown in the charts officially recognized by the United Mexican States.

TRANSITORIOS

TRANSITORY PROVISIONS

ARTICULO PRIMERO. La presente Ley entrará en vigor en la fecha de su publicación en el Diario Oficial de la Federación.

ARTICLE ONE. This Act shall enter into force on the date of its publication in the Official Daily of the Federation (Diario Oficial de la Federación).

ARTICULO SEGUNDO. La presente Ley deroga la Ley Reglamentaria del Párrafo Octavo del Artículo 27 Constitucional, relativo a la Zona Económica Exclusiva, publicada en el Diario Oficial de la Federación el 13 de febrero de 1976. ARTICULO TERCERO. La presente Ley deroga todas las disposiciones legales en vigor que se le opongan. Las materias no previstas en esta Ley relacionadas con actividades en las zonas marinas de jurisdicción nacional, se regirán por la legislación nacional en vigor en lo que no se le opongan.

ARTICLE TWO. The present Act repeals the Regulatory Act of the Eighth Paragraph of Article 27 in the Constitution, relating to the Exclusive Economic Zone, published in the Official Daily of the Federation on 13 February 1976. ARTICLE THREE. The present Act repeals all legal provisions in force contrary to it. Matters for which no provision is made in this Act relating to activities in the marine zones under national jurisdiction shall be governed by national legislation in force that is not contrary to this Act.

ARTICULO CUARTO. Las infracciones a lo dispuesto en la presente Ley serán sancionadas por las autoridades nacionales competentes de conformidad con los ordenamientos nacionales aplicables a sus distintas materias.

ARTICLE FOUR. Infringement of the provisions of this Act shall be punished by the competent national authorities in accordance with the national provisions applicable to these matters.

México, D.F., a 18 de diciembre de 1985. Sen. Socorro Díaz Palacios, Presidenta. Dip. Fernando Ortiz Arana, Presidente. Sen. Guillermo Mercado Romero, Secretario. Dip. Reyes Rodolfo Flores Z., Secretario. Rúbricas.

Fernando Ortiz Arana, President. Sen. Guillermo Mercado Romero, Secretary. Rep. Rodolfo Reyes Z. Flores, Secretary. Signatures. Mexico, D.F., December 18, 1985. Sen. Socorro Díaz Palacios, President. Rep.

En cumplimiento de lo dispuesto por la fracción I del artículo 89 de la Constitución Política de los Estados Unidos Mexicanos y para su debida publicación y observancia, expido el presente Decreto en la residencia del Poder Ejecutivo Federal,

In compliance with the provisions of Section I of Article 89 of the Political Constitution of the United Mexican States and that in order that it may be published and observed, I hereby issue this Decree at the residence of the Federal Executive

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en la ciudad de México, Distrito Federal, a los veinte días del mes de diciembre de mil novecientos ochenta y cinco. Miguel de la Madrid H. Rúbrica. El Secretario de Gobernación, Manuel Bartlett D. Rúbrica. El Secretario de Relaciones Exteriores. Bernardo Sepúlveda Amor. Rúbrica. El Secretario de Marina, Miguel Angel Gómez Ortega. Rúbrica. El Secretario de Comunicaciones y Transportes, Daniel Díaz Díaz. Rúbrica. El Secretario de Turismo, Antonio Enríquez Savignac. Rúbrica. El Secretario de Pesca, Pedro Ojeda Paullada. Rúbrica. Fe de erratas al párrafo DOF de Enero 9 de 1986.

Power in Mexico City, Federal District, on the twentieth day of December nineteen hundred and eighty-five. Miguel de la Madrid H. (Signature). The Secretary of Interior, Manuel Bartlett D. (Signature). The Secretary of Foreign Affairs Bernardo Sepúlveda Amor. (Signature). The Secretary of the Navy, Miguel Angel Gómez Ortega (Signature). The Secretary of Transportation Daniel Díaz Díaz (Signature). The Secretary of Tourism, Antonio Enriquez Savignac (Signature). The Secretary of Fisheries, Pedro Ojeda Paullada (Signature). Corrigendum DOF of January 9, 1986.

Delineation of the Provisional Maritime Boundary between the Exclusive Fishery Zones of the United States and Mexico in the Pacific Ocean, International Boundary and Water Commission (IBWC), December 30, 1967

Document 2.2

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International Maritime Boundary in the Gulf of Mexico, International Boundary and Water Commission (IBWC), December 12, 1970

Document 2.3

122 Chapter Two: Appendix Two

International Maritime Boundary in the Pacific Ocean, International Boundary and Water Commission (IBWC), December 12, 1970

Document 2.4

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Reproduced from “Limits in the Seas,” U.S. Department of State.

Mexico: Straight Baselines, 1968

Document 2.5

124 Chapter Two: Appendix Two

Taken from Foro Internacional, Vol. XII, No. 2, El Colegio de Mexico.

Straight Baselines Delimiting Mexico’s Territorial Sea in the Interior of the Gulf of California, Pursuant to Diario Oficial of August 30, 1968; and Fé de Erratas (Corrigendum) in Diario Oficial of October 5, 1968

Document 2.6

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Chapter Three Genesis and Development of the Exclusive Economic Zone in Latin America 1. Introduction The exclusive economic zone of 200 nautical miles and the submarine continental shelf 1 probably are the two most modern law of the sea spaces.2 Having appeared during the 20th century, both of these concepts may be characterized as revolutionary legal notions that were almost “instantly”3 recognized as rules of customary international law. The Geneva Conventions on the Law of the Sea of 1958 represent the codification of the “old” law of the sea basically prepared by major maritime powers and then formalized under the aegis of the United Nations. This traditional law of the sea encapsulated in four international conventions hundreds of years of customs and rules relative to the uses and resources of the seas in an era when maritime powers plowed the surface of the oceans to discover remote and unknown lands, obtain prestige and power through military conquests, conduct unregulated fishing and engage in global trade. The modern law of the sea has been characterized, inter alia, as the result of impressive scientific and 1

2

3

The Proclamation No. 2667 (10 Fed. Reg. 12303) of President Harry S. Truman of September 28, 1945 is recognized as the origin of the legal notion of the continental shelf. For its impact upon Mexico and other countries in Latin America, see the discussion in Chapter One of this book, titled: Mexico and Its Territory. Constitutional Principles and Foundations. The notion of the seabed and ocean floor beyond the limits of national jurisdiction, recognized as a “Common heritage of Humankind” in UNGA Resolution 2749 of December 17, 1970, and referenced in Part XI of the 1982 Law of the Sea Convention, may be characterized as a third “revolutionary” legal concept of the law of the sea. However, it may be questionable whether this concept has already been recognized today as a rule of customary international law. Many major powers may disagree with such a recognition. Generally speaking, rules of customary international law, by definition, take a long time to be recognized as such. The first exception to this principle was the continental shelf proclaimed by President Truman in 1945. The number of countries that rapidly adhered to this notion in a decade or so was so large and so geographically widespread that a claim was advanced that the continental shelf “instantly” became a rule of customary international law. See, for example, Henkin, Pugh, Schachter and Smit. International Law (West, 1987) at 82, 1301–1302 note 2.

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technological developments and the drive led by developing countries to utilize the oceans for economic reasons, i.e., the inherent right of coastal populations to use the natural resources in the adjacent sea to elevate the well-being of their populations and to promote their economic and social development.4 For the majority of countries in the world, poor and undeveloped but with coastlines rich in natural marine resources, the State’s economic interests tend to receive more attention than military, strategic or political interests.5 Considering the vital importance that poor and developing coastal States give to this economic goal, it is easy to understand the overwhelming support the majority of States attending the Third U.N. Conference on the Law of the Sea gave to the then emerging notion of the exclusive economic zone. Accordingly, this marine space recognized both as conventional law in the language of the 1982 Convention and as a part of customary international law, is considered a diplomatic triumph on the law of the sea accomplished by the developing world during the 20th century. From a diplomatic perspective, the exclusive economic zone as a new marine space that was codified in the 1982 Convention truly was a compromise that resulted from the imperative necessity keenly felt by developing countries to change some of the premises of law of the sea.6 Thus, this new marine zone was the product of a legal compromise of two opposing positions: one, vigorously 4

5

6

In the progressive development of the law of the sea phase one may be represented by navigation for discoveries, military purposes, trade and fishing; and phase two for a strong economic orientation towards the oceans and its resources. Given the existence of serious pollution problems and the rapid extinction of certain living resources, added to the problems associated with global warming, the third phase of the law of the sea (that has started already), may be directed at protecting the marine environment and its living resources, and using the hydrosphere (i.e., wind, waves and solar energy) as a source of alternative sources of energy. The practical philosophy of considering the adjacent seas as a driving force for the economic development of coastal populations led to a strong and global trend of poor and developing countries in Latin America, Africa and Asia to demand the creation of a “New International Economic Order.” This economic drive – that arrived at the United Nations and other regional organizations in the 1970’s – was translated into a practical philosophy to promote economic development that was strongly embraced by the “Group of 77.” See J. Van Dyke (Ed.). Consensus and Confrontation. The United States and the Law of the Sea Convention (1985); F.O. Vicuña (Ed.) The Exclusive Economic Zone: A Latin American Perspective (1984); Jorge Aja Espiel. El Derecho del Mar. La Zona Marítima de 200 Millas, Razones que la Sustentan y Naturaleza Jurídica (The 200-mile Maritime Zone: Reasons Supporting it and Legal Nature). Bogotá (1977) at 29–54; Francisco García Amador. The Exploitation and Conservation of the Resources of the Sea. Leyden (1959); Edmundo Vargas Carreño. América Latina y el Derecho del Mar. México (1973); Alvaro de Soto. The Latin American View of the Law of the Sea. 29 India Quarterly (1973) at 126–137; Ralph Zacklin (Ed.) Derecho del Mar. Contribución de los Países Latinoamericanos. FCE, México (1975); and T. Clingan (Ed.). State Practice in Zones of Special Jurisdiction. Law of the Sea Institute, Mexico City (1979).

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advanced by major maritime powers to recognize only a relatively narrow territorial sea no wider than 12 nautical miles where the coastal State exercises full and exclusive sovereignty; and second, the thesis proclaimed by a large number of States (many from Latin America, known either as the “Territorialists” or “Patrimonialists”) to establish a 200 nautical mile resource zone.7 The fusion of these two diverging positions led to the formulation of a marine zone with a sui generis legal content: it was neither a high seas zone nor a territorial sea. It was not part of the high seas because the coastal State exercised “sovereignty rights” over the resources in said zone, a notion traditionally associated with the territorial sea.8 Now, if the coastal State had only “sovereignty rights” over the resources, that meant that the zone was more like the high seas and, as a consequence, this implied the impossibility of excluding States from utilizing these resources, i.e., the coastal State had to permit other States to fish in that zone. This economic zone was not a territorial sea because in its waters the freedom of navigation remained unobstructed, a legal concept closely associated with the high seas. Furthermore, the sovereign rights of the coastal State were directed simply at protecting the resources found in the zone but not over the totality of that marine zone. As it is known, exercising full sovereignty over the entirety of the marine space is a distinct legal characteristic of the territorial sea.9 In conclusion, the exclusive economic zone was neither the high seas with exceptions in favor of the international community nor a territorial sea with exceptions in favor of the coastal State. The exclusive economic zone was a new marine zone with a sui generis legal substance combining components of the high seas with components of the territorial sea and then legally fusing them together to create a brand new marine zone of the law of the sea. It has been recognized that the exclusive economic zone finds its origin associated with the maritime claims advanced by South American countries in the 1950’s and later connected with the Latin American concept of the patrimonial

7

8

9

For a discussion of the negotiating process that eventually resulted in the Exclusive economic zone, see Jorge Castañeda. Negociaciones sobre le Zona Económica Exclusiva en la Tercera Conferencia de las Naciones Unidas sobre el Derecho del Mar (Negotiations on the Exclusive economic zone at UNCLOS III) in Obras Completas, SRE/Colef, México (1995), Vol. II at 159–183. See E.D. Brown. The International Law of the Sea, Chap. 12: The International Legal Regime of the Exclusive Economic Zone (1994), Vol. I at 216–219. For the United States, the exclusive economic zone is part of the high seas. See President Reagan’s Proclamation on the EEZ of 1983 in note 254 of Chapter Five of this book. J. Castañeda. México y el Nuevo Derecho del Mar (Mexico and the New Law of the Sea). Supra note 7 at 195–221.

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sea in the 1970’s.10 However, the merit of having defined the legal contours of the exclusive economic zone is the result of the negotiations conducted at UNCLOS III. In this regard, the Evensen Group11 played a pivotal role in accomplishing this final and delicate diplomatic compromise. The establishment by Mexico of a 200 nautical mile exclusive economic zone in 1976 by amending its Constitution,12 clearly signifies the importance given by this country to this modern space of the law of the sea. In many respects, Mexico devoted considerable efforts and contributed to defining the legal nature of this marine zone at regional and international conferences, in formal and informal negotiating fora but especially at UNCLOS III. Accordingly, Mexico considers itself an actor in the genesis and final definition of this zone. From Mexico’s perspective, the exclusive economic zone could not have arrived in that country at a more auspicious time, both politically and diplomatically. Politically, President Echeverría (1970–1976), was a supporter of the New International Economic Order (NIEO)13 proposed at that time at the United Nations by a group of developing countries, including Mexico. The NIEO’s

10

11

12

13

See the works cited in supra note 6, in particular Vargas Carreño, Zacklin, García Amador, De Soto and Aja Espiel. See also Rafael de la Colina. Evolución del Derecho del Mar en América Latina. Contribución Latinoamericana (Evolution of the Law of the Sea in Latin America. A Latin American Contribution) in México y el Régimen del Mar (Mexico and the Oceans’ Regime). SRE, México (1974) at 37–74; and Jorge A. Vargas Contribuciones De La America Latina Al Derecho Del Mar (Latin America Contributions to the Law of the Sea). UNAM/IIJ (1981). For a description of the “Evensen Group” and its diplomatic work, see Castañeda, supra note 7 at 205–212. See also Jens Evensen, “Working Methods and Procedures in the Third U.N. Conference on the Law of the Sea”, Recueil Des Cours 415–491 (1986, Vol. IV); and Myron H. Nordquist et al. U.N. Convention on the Sea 1982. A Commentary. The Exclusive Economic Zone, Vol. II (1982) at 481–510. Mexico established its “Exclusive economic zone situated outside its territorial sea” by adding an “Eighth paragraph” to Article 27 of Mexico’s Political Constitution of 1917 by a presidential decree published in the Diario Oficial de la Federación of February 6, 1976 (This decree entered into force 120 days after its publication). A few days later, Mexico enacted a “Reglamentary Act” of the Exclusive Economic Zone (Ley Reglamentaria del Párrafo Octavo del Artículo 27 Constitucional ), published in the D.O. of February 13, 1976 (This Act entered into force simultaneously with the preceding decree); and by D.O. of June 7, 1976, Mexico published a third decree establishing the outer boundary of the Exclusive Economic Zone (Decreto que fija el Límite Exterior de la Zona Económica Exclusiva de México) that entered into force on July 31, 1976 (and the corresponding nautical chart by the Secretariat of the Navy). These enactments are reproduced in Appendix Four of this book. The NIEO derived from the United Nations Conference on Trade and Development (UNCTAD, Resolution 45 (III) of 18 May, 1972) stressing the urgency to establish “generally accepted norms to govern international economic relations systematically” and recognizing that “it is not feasible to establish a just order and a stable world as long as a charter to protect the rights of all countries, and in particular the developing countries,” is not formulated.

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political philosophy was an attempt to structure a new economic order to make it responsive to the needs and interests of developing countries, characterized in those years as members of the so-called “Third World.”14 This new approach towards the oceans, and its resources, was based on a new philosophy favoring development.15 For Mexico – having the longest marine coastline in Latin America with marine resources, including hydrocarbons and natural gas in the Gulf of Mexico – this philosophy was an appealing notion.16 Diplomatically, Mexico assembled a young and well-prepared group of Mexican jurists and diplomats to actively participate, as members of the Mexican delegation, at UNCLOS III. This group was led by Amb. Jorge Castañeda, Secretary of Foreign Affairs, career diplomat and veteran jurist who was involved in the negotiations at the First and Second U.N. Conferences of the Law of the Sea in 1958 and 1960. At these conferences, Castañeda was under the guidance of Amb. Alfonso García Robles, an erudite diplomat who later became Secretary of Foreign Affairs and was awarded the Nobel Peace Prize for his personal involvement in the formulation of the Tlatelolco Treaty.17

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President Echeverría established the Center for Economic and Social Studies of the Third World to discuss and advance the political philosophy espoused by the NIEO and the Charter of Economic Rights and Duties of States. In December of 1977, the Center organized an international conference on “The Third World and the New Law of the Sea” with the participation of leading experts at that time such as Dr. Arvid Pardo, Dr. Elizabeth Mann Borgese, Dr. Bibiano Osorio Tafall, Dr. Sidney Holt, Lee Kimball, Reynaldo Galindo Pohl, Dr. V.K.S. Varadan, Dr. Juan Carlos Bossio, Christopher Pinto, Frank Njenga and Dr. Alberto Székely, who coordinated the conference. For the proceedings of this conference, see Estudios del Tercer Mundo (Third World Studies). Derecho del Mar (Law of the Sea). Vol. 1, No. 3, CEESTEM, México, September 1978. For the content of this philosophy and its relationship to the law of the sea, see Jorge Castañeda. El Nuevo Derecho del Mar (The New Law of the Sea), supra note 7 at 101, 103–114. This new philosophy was formulated as a response to the problems affecting the least developed countries, such as demographic explosion, lack of food, unjust trade conditions and severe economic dependency on developed States. As a result of the establishment of its Exclusive economic zone, Mexico incorporated under its control a marine area of 2.5 million square kilometers, superior to that country’s land territory. Today, Mexico’s EEZ is one of the largest in the world. García Robles is considered as the architect of the Tlatelolco Treaty (Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean): the treaty that established the very first “denuclearized zone” in the world, that was created in Latin America at the initiative of Mexico. The treaty was signed at Tlatelolco, the venue of Mexico’s Secretariat of Foreign Affairs (SRE) on February 14, 1967. This unprecedented diplomatic accomplishment led him to receive the Nobel Peace Prize in 1982. See his works, The Denuclearisation of Latin America (Carnegie Endowment for International Peace, NY, 1967) and Mésures de Désarmament dans des Zone Particulières in Recueil des Cours, 1971, Vol. 133 at 43–134 (1972). The treaty may be consulted at UNTS, Vol. 634 at 282–325.

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Mexico’s delegation, joining forces with those from developing countries, was determined to negotiate the creation of a new 200 nautical mile zone as a part of the final convention to be formulated by UNCLOS III.

2. Genesis and Development in Latin America A. Latin American Diplomatic Conferences The genesis and development of the Exclusive economic zone may be traced back to Latin America. The exclusive economic zone is the result of a gradual evolution over a period of three decades. A number of principles became a unifying force along this process, culminating with the incorporation of the exclusive economic zone in the 1982 Convention. These principles are: 1. A strong economic orientation to consider the coastal State’s marine resources as a force linked to the economic and social development of the coastal State and its population; 2. The necessity of enlarging the marine area where the coastal State exercises exclusive authority to control the utilization of marine resources, whether living or mineral; 3. The need to revise the fundamental premises of the traditional law of the sea, to create a modern law of the sea, responsive to the needs and economic interests of developing countries; 4. To formulate a promotional policy (first regional and then global) to advance the ideas expressed in the preceding paragraphs and participate in the formulation of a “new law of the sea,” centered around the novel concept of a 200 nautical mile resource zone. This promotional policy was to encourage the diplomatic participation and the contributions of developing countries, including new nations who became independent after the conclusion of the 1958 and 1960 U.N. conferences of the law of the sea. The first principle was based on the conviction that the coastal State’s offshore resources needed to be protected from distant foreign fleets and be used as a detonator to promote the economic and social development of its inhabitants. This economic orientation led to the conviction that the relative abundance of these marine resources resulted from a direct, natural and causal relationship with the adjacent territorial base of the coastal State. It was a “physical extension” into the oceans of the physical and geological composition of the State’s territorial base. Therefore, the coastal State believed that it had inherent rights over all kinds of natural resources offshore, both living and mineral. The philosophy enshrined

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in the Santiago Declaration of 195218 may be used as an early example to illustrate the merits of this premise. The first paragraph of the Santiago Declaration reads: I. The geological and biological factors that condition the existence, conservation and development of the maritime fauna and flora in the waters that bathe the coasts of the declaring countries, make the old width of the territorial sea and the contiguous zone to be insufficient for the conservation, development and utilization of the riches upon which the coastal states have a right.19

The second principle predicated the necessity of enlarging the narrow sea belt traditionally known as the territorial sea. In essence, it was a claim arguing for a substantial enlargement of the width of the territorial sea,20 a common plea among developing countries dating back to the 1930 Conference at The Hague for the Codification of International Law.21 Whereas some States – such as Chile, Ecuador and Peru, signatories of the 1952 Santiago Declaration – preferred a unilateral act to enlarge its adjacent sea, others – like Mexico, in consonance with its tradition of respect for international law – decided to adopt a more traditional approach based on customary international law, as reflected by the State practice of the international community. The “Declaration II” of the Santiago Declaration and the theory that the beneficial effects of the oceanographic phenomena in front of these three South American countries (Chile, Ecuador and Peru) extended its beneficial effects out to 200 nautical miles from the coastline (Bioma Theory), serve as an example to illustrate this concept.22 The second paragraph of the same Declaration reads:

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For the text of the Santiago Declaration, see infra note 39 and the corresponding text. The language of the Santiago Declaration (in English and Spanish) is reproduced in Appendix Three at the end of this chapter. Declaración de Santiago sobre Zona Marítima (Santiago Declaration on the Maritime Zone), Declaración I, taken from México y el Régimen del Mar (Mexico and the Oceans’ Regime), supra note 10, Appendix 8 at 307. The same “Declaration I” of the Santiago trilateral agreement explicitly stated: “[T]he geological and biological factors . . . make the old width of the territorial sea and the contiguous zone to be insufficient for the conservation, development and utilization. . . .” This important international conference clearly revealed that there was no universal uniform rule of international law establishing the maximum width for the territorial sea. Out of the 48 states attending this conference, only 9 agreed on a three-nautical mile territorial sea. In contrast, the overwhelming majority of States favored a much larger marginal belt (with or without a contiguous zone) of 4, 6, 12 or even wider widths. According to Gilbert Gidel, this conference became the “death-certificate” of the three-nautical mile territorial sea. See A. Gómez Robledo. Derecho del Mar en la Legislación Mexicana (Law of the Sea in the Mexican Legislation) in México y el Régimen del Mar, supra note 10 at 86, 81–105. This theory was known by South American and other scientists as “the Bioma theory.” For a detailed discussion of the physical and biological arguments advanced by these and other

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Chile, Ecuador and Peru were the first countries in the world who used the 200 nautical mile figure to claim the creation of a “200 nautical mile maritime zone.” With the passage of time, other countries started to adhere to the “magical numerical effect” of the 200 nautical miles, without having to base this numerical figure on any legal or scientific consideration.24 The task at hand was to launch a vigorous promotional policy, first at a regional level in Latin America, Africa and Asia, and then at a global scale within UNCLOS III, to advance these novel ideas and to reach a level of understanding and a general consensus on the fundamental premises of this new philosophy for a new law of the sea. The strategy was simple: to induce the formation of regional diplomatic blocs, who then would hopefully unite and act in concert at UNCLOS III with the objective of incorporating these ideas in the language of the 1982 Convention. To reach this goal, the novel concept of the 200 nautical mile exclusive economic zone was to be utilized as the diplomatic glue to unify all of these developing countries in the construction of a modern law of the sea. Latin America was the epicenter for this diplomatic marine offensive. During the 1960s and the 1970s, several countries in that region served as hosts to conferences convoked to discuss how to legally structure a marine legal space that would respond to this economic orientation towards the coastal State’s marine resources. At the same time, this new legal space would have to allow for the exercise of certain “freedoms” associated with the high seas, for the benefit of the major maritime powers. A historical review of the marine legal activity that took place in Latin America during the 20th century (from 1933 until 1972), reveals an impressive number of diplomatic conferences and legislative enactments on law of the sea matters. The earliest events date back to the period of 1933 through 1941 under the aegis of the Pan American Union, approving a Resolution on the territorial

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countries and their relationships with the 200 nautical mile limit, see A. Székely. Latin America and the Development of the Law of the Sea. Oceana (1986), Vol. I at 128–140 (hereinafter Latin America). Ibid. The reader should notice the use of the ambiguous expression “the sovereignty and exclusive jurisdiction . . . over the sea that bathes their respective coasts. . . .” This expression was used to suggest a 200 n.m. territorial sea or a 200 n.m. conservation zone, or something in between, thus suggesting legal differences among the three signatory States on the meaning of this expression based on substance or time. See Ann L. Holick The Origins of 200-Mile Offshore Zones, 71 AJIL 494–500 (1977).

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sea in 1933 in Montevideo;25 a cartographic determination of a neutrality zone offshore the American continent in 1939 in Panama;26 a Consultative Meeting of Foreign Affairs Ministers of the American Republics in 1940 on the extension of the territorial sea in La Habana, Cuba;27 and the establishment of a “Neutrality Zone” of 12 nautical miles in 1941 in Rio de Janeiro.28 Interestingly, the activities of Latin American countries became more frequent and legally diversified as a consequence of the Proclamation 2667 of President Truman on September 28, 1945, regarding the submarine continental shelf.29 This proclamation precipitated a cascade of domestic legislative enactments that were initially close to the legal substance of the proclamation but gradually drifted away from its contents, claiming authority and control beyond the geological shelf per se and exercising such control over the superjacent waters. More specifically, the Truman proclamation in Latin America not only led to similar claims over adjacent geological submarine areas but also inspired the creation of a new and unorthodox marine spaces such as, for example, the Epicontinental Sea by certain South American and Central American countries in the late 1940s;30 the legally ambiguous “Maritime zone” offshore Chile, Ecuador and Peru in 1952 and similar “zones;”31 the undefined authority for the “protection 25

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Séptima Conferencia Internacional Americana, Diciembre 16, 1933 at Montevideo, Uruguay. Resolución VI: Mar Territorial. It was declared that it was not possible at that time to consider the preparation of a draft treaty on the territorial sea. This relation of events is taken from the chart titled: “El Desarrollo Progresivo del Derecho del Mar en América Latina” (The Progressive Development of the Law of the Sea in Latin America) attached as an Annex to the article by Rafael de la Colina. Evolución del Derecho del Mar en América Latina. Contribución Latinoamericana (Evolution of the Law of the Sea in Latin America. A Latin American Contribution), méxico y el régimen del mar, supra note 10 at pp. 75–80. Declaración de Panamá. Octubre 3, 1939. Resolución XV de la Primera Reunión de Consulta de Ministros de Relaciones Exteriores. Determinación cartográfica de aguas adyacentes al continente americano que se consideraron de primordial interés para el mantenimiento de la neutralidad. Ibid. at 75. Segunda Reunión de Consulta entre Ministros de Relaciones Exteriores de las Repúblicas Americanas, La Habana, Agosto 8, 1941. Resolución VIII sobre la extensión del mar territorial. Id. Comité Interamericano de Neutralidad de Rio de Janeiro, Agosto 8, 1941. Recomienda que se extienda la soberanía de cada Estado, en sus respectivas costas, hasta una distancia de doce millas. Id. Policy of the United States with respect to the Natural Resources of the Subsoil and Sea bed of the Continental Shelf, 10 Fed. Reg. 12303. See, for example, the Argentinean Decree No. 14708 exercising exclusive jurisdiction on fisheries over the continental shelf and the Epicontinental Sea of October 11, 1946; and the Panama’s Decree No. 449 establishing Epicontinental Waters of December 17, 1946. See, for example, the Santiago Declaration of 1952; the Peruvian Decree No. 781 on the protection, conservation and utilization of marine resources in a 200 nautical mile zone of August 1, 1947; and the Costa Rican Act No. 116 on the protection and control of the sea within 200 nautical miles (later revised in 1949 by Decree No. 803).

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of the natural resources of the sea in the late 1940s and early 1950s;32 the establishment of a 200 nautical mile territorial sea;33 and later on the emergence of the Patrimonial Sea in the 1970s34 – all novel concepts contrary to international law and to the traditional law of the sea – that led the way to today’s 200 nautical mile exclusive economic zone. For Latin America, Truman’s proclamation served as a triggering force that moved Presidents and legislatures of countries in this region to promulgate legislation on a wide range of law of the sea matters. From 1945, when the U.S. Proclamation was made until 1972 when the Santo Domingo Declaration outlined the legal contours of the Patrimonial Sea, no fewer than forty-six different pronouncements were made.35 Mexico approached the 200-mile trend rather late and timidly. Two major reasons compelled this country to adopt this aloof attitude: first, Mexico was convinced that the 200-mile trend was contrary to international law. Its orthodox position on this matter dictated to it that although the three-nautical rule had proven to be simply a non-existent rule and, ergo, not legally binding, Mexico believed that the only valid rule at that time was a territorial sea with a maximum width of 12 nautical miles, based on the State practice of the majority of members of the international community. This policy, considered to be legally sound and diplomatically correct at that time, was proven by its formal proposal co-sponsored by India at the 1958 first Geneva Conference on the Law of the Sea,36 later reiterated at the 1960 Second Geneva Conference.37 32

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See, for example, Act No. 3342 of the Dominican Republic over “natural resources of the sea” of July 13, 1952; the Cuban Decree-Act over “natural resources of the sea” of January 25, 1955; and the Venezuelan Act over “natural resources of the sea” of July 26, 1956. See Article 7 of the Constitution of El Salvador of September 14, 1950; Decree No. 1542 of Ecuador amending Article 633 of the Civil Code of November 10, 1966; Argentinean Act No. 17,094 of December 29, 1966; and Act No. 31 of Panama of February 2, 1967. See, in particular, the “Santo Domingo Declaration” signed on June 9, 1972 at the Specialized Conference of the Caribbean Countries on Law of the Sea Problems, with the participation of Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Trinidad and Tobago, and Venezuela. This declaration is reproduced in Appendix Three at the end of this chapter. For a detailed list of 39 of these legislative pronouncements, conferences, resolutions, etc. see De la Colina’s article and chart on the Progressive Development of the Law of the Sea in Latin America, supra note 25 at 75–80. See proposal A/CONF. 13/L. 79 submitted by Mexico and India to the First Committee of the 1958 LOS Conference. Put to a vote, this proposal received 35 votes in favor, 35 against and 12 abstentions. See first Geneva Conference on the Law of the Sea, Official Records, Vol. III at 177. This proposal did not pass because it did not reach the two-third requirement imposed by the Rules of Procedure. For a discussion of these proposals, see Alfonso García Robles. La Conferencia de Ginebra y la Anchura del Mar Territorial (The Geneva Conference and the Width of the Territorial Sea). Mexico (1959) at 114–121. At the Second Geneva Conference on the Law of the Sea in 1960, jointly with other seventeen countries, Mexico proposed a territorial sea with a maximum width of 12 nautical miles. The

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A second reason was a practical geopolitical consideration: its physical contiguity to the United States. History and experience had taught tragic lessons to Mexico in its past confrontations with the United States. These lessons made Mexico realize that not only the wisest but the only policy to propose to that country was the neighborly persuasion provided by incontrovertible principles of international law. Sarcastically, Székely considers that this proximity may qualify Mexico as a “geographically disadvantaged State,” concluding that Mexico’s “strict adherence to positive international law could not afford it the luxury of engaging in international adventures based on de lege ferenda conceptions.”38 Realistically, it seems that only countries like Chile, Ecuador and Peru – geographically distant from the United States – had the freedom to engage in marine adventures of a legal nature. 1. The Santiago Declaration of 1952 The idea that the traditional law of the sea required a revision of its fundamental premises may be traced back to the Santiago Declaration of 1952.39 The relatively unified maritime policies adopted by Chile, Ecuador and Peru40 was the first official act by three States acting in concert designed to challenge the traditional conceptions of the law of the sea advanced by major maritime

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proposal was voted down by 39 votes in favor, 36 against it and 13 abstentions. See U.N. Doc. A/CONF. 19/Cttee.1/Rev.1. See Alfonso García Robles. La Anchura del Mar Territorial (The Width of the Territorial Sea). Colef, México (1966) at 101–109. A. Székely. México y el Derecho Internacional del Mar (Mexico and International Law of the Sea). UNAM, México (1979) at 130–131. Declaración sobre Zona Marítima de 1952 de la Conferencia sobre Explotación y Conservación de las Riquezas Marítimas del Pacífico Sur (Declaration on Maritime Zone of 1952). Trilateral Agreement signed at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific, Santiago, August 18, 1952 signed by Julio Ruiz Bourgeois, Delegate of Chile; Jorge Fernández Salazar, Delegate of Ecuador; Dr. Alberto Ulloa, Delegate of Peru; and Fernández Guarello, Secretary General of the First Conference. Derecho del Mar. CJI, OEA/Ser.Q.II.4, CJI-7 (Vol. I) at 215–216. Reproduced also at U.N. Doc. A/AC.135/10/Rev. 1 at 11–12. Although Chile, Ecuador and Peru were the signatory parties to the Santiago Declaration, each individual maintained an autonomous and different legislative domestic policy regarding the type of authority and control exercised over the offshore 200 n.m. “Maritime zone” established by the Declaration. See Alfredo Luna Tobar. La Declaración de Santiago. Antecedentes y Proyecciones (The Santiago Declaration. Background and Projections). Secretary General of the Permanent Commission of the South Pacific (Lecture at Valparaíso, Chile, on April 7, 1970); Enrique García Sayán. Notas sobre la Soberanía Marítima del Perú. Defensa de las 200 Millas del Mar Peruano antre las Recientes Transgresiones. Lima (1955); Andrés Aramburú Menchaca. El Sistema Marítimo del Pacífico Sur y los Principios de México (The Maritime System of the South Pacific and the Principles of Mexico). 14 Revista de la Facultad de Derecho. Caracas (1958); and Alfonso Arias Schreiber. Política Internacional del Perú en Defensa de su Soberanía Marítima (Peru’s International Policy in Defense of its Maritime Sovereignty). Fundamentos de la Doctrina de las 200 Millas Peruanas. Lima (1973) at 19–42.

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powers in the early 1950s by unilaterally establishing an exorbitant 200 nautical mile “maritime zone.” This unprecedented South American claim contains the germ of a 200-mile “resource zone” that eventually evolved into today’s Exclusive economic zone. This trilateral declaration was made at the First Conference on the Exploitation and Conservation of the Maritime Resources of the South Pacific held in Santiago with the participation of Chile, Ecuador and Peru on August 18, 1952. In addition, the three signatory parties: (i) produced a Joint Declaration relative to the Problems of the Fisheries in the South Pacific;41 and (ii) established a Permanent Commission for the Exploitation and Conservation of the Maritime Resources of the South Pacific.42 A. Preamble and Maritime Policies In its preamble, the Santiago Declaration recognized the obligation of the signatory parties “to assure their peoples the necessary conditions for their survival and to provide them with the means for their economic development,” and their “duty to impede that an exploitation of the offshore resources, outside their jurisdiction, may endanger their existence, integrity and conservation of said resources to the detriment of their peoples considering that, because of their geographical position, they possess in their seas irreplaceable sources of food and of economic resources vital for them.” Based on these considerations, II) The governments of Chile, Ecuador and Peru proclaim as norm of their international maritime policy, the exclusive sovereignty and jurisdiction that corresponds to each of them over the sea that bathes the coasts of their respective countries, out to a minimum distance of 200 nautical miles from said coasts; III) The exclusive sovereignty and jurisdiction over the maritime zone also includes the exclusive sovereignty and jurisdiction over the seabed and subsoil that corresponds to said zone;

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Declaración Conjunta relativa a los Problemas de la Pesquería en el Pacífico Sur, Santiago de Chile, August 18, 1952. Concerned with the possible exploitation of the living resources within the Maritime Zone, in this declaration the parties recommended to the three governments “[T]o establish marine biology stations to study the migrations and the reproduction of the species with the highest nutritional value;” “[T]o coordinate the conduct of national and international scientific research;” [T]o issue regulations for the conservation of the fishing resources within their respective jurisdictional maritime zones;” and “[T]o recommend . . . the issuance of fishing permits only when such activities do not adversely affect the conservation of the species.” Taken from Declaration, supra note 39 at 217–218. Organización de la Comisión Permanente de la Conferencia sobre Explotación y Conservación de las riquezas Marítimas del Pacífico Sur, Santiago, August 18, 1952. The structure and functions of this trilateral commission indicate that this was an international fishing commission established to regulate the exploitation and the conservation of the living resources within the 200 n.m. Maritime Zone.

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V) This declaration does not mean to fail to recognize the necessary limitations to the exercise of the sovereignty and jurisdiction established by international law, in favor of the innocent and innocuous (sic) passage through said zone in favor of the vessels of all nations.43

The Santiago Declaration of 1952 may be examined from three different angles: legal, environmental and political. Legally, its substance was contrary to international law and to the then existing notions of the law of the sea. Its legal terminology was intentionally ambiguous when it described the legal substance of the “maritime zone” governed by two distinct and opposite concepts: sovereignty and jurisdiction.44 Both States and law of the sea scholars at that time wondered whether the “maritime zone” was a territorial sea, an exorbitant contiguous zone or possibly a new and unorthodox marine space serving the function of a vast “resources zone” or “conservation zone.”45 The unusual combination of the legal notions of “sovereignty” and “jurisdiction” as controlling the legal nature of the “maritime zone” – terms of art with specific legal meaning in the law of the sea – led a number of States to turn their backs to this unorthodox concept, considering it contrary to international law or as something peculiar, sui generis or simply a “legal oddity” not worthy of serious consideration from an international law viewpoint. From an environmental viewpoint, this agreement advanced arguments for the protection and conservation of the living resources offshore these States, in particular whales, anchovette and tuna.46 Paradoxically, these conservationist ideas are similar to the environmental policies that eventually led to the establishment of regional fishing commissions.47 Finally, from a political angle, the Santiago Declaration can be characterized as an international challenge made by three States in South America directed against the major maritime powers.

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Santiago Declaration, supra note 39 at 216–217. Read in particular paragraph II of the Declaration, supra note 19. See, for example, the opinions and critiques of García Amador, Gutiérrez Olivos, García Sayán, Alvaro Alvarez, Zacklin, etc. See R. Zacklin (Ed.), El Derecho del Mar en Evolución (Law of the Sea in Evolution). FCE, México (1975), passim; A. Alvarez. Los Nuevos Principios del Derecho del Mar (The New Principles of the Law of the Sea), Montevideo (1969) at 52–55; R. de la Colina, supra note 10 at 45–49; and the authors cited in supra note 47. Read paragraphs 2 and 3 of the Preamble and especially the Joint Declaration on Fisheries Problems of the South Pacific (also dated August 18, 1952) and the statutes of the Permanent Commission derived from the Conference on the Exploitation and Conservation of the Maritime Riches of the South Pacific. See, for example, Articles 61–68; 118 and 119, LOS Convention of 1982. See also the language of regional commissions such as, for example, the Inter-American Tropical Tuna Commission.

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It has been pointed out that the rationale and the arguments advanced by the CEP countries in the Santiago Declaration appear to have more of a philosophical or moral character devoid of a legal content.48 The concerns advanced by the three signatories were couched in aspirational terms formulated to convince the international community that the oceans’ legal regime prevailing at that time was unfair to the coastal communities, so a change was necessary. Accordingly, the CEP countries felt compelled to unilaterally extend their sovereign or jurisdictional powers (never defined in precise legal terms according to international law) over a vast oceanic area and claim these marine resources as the basis to promote the economic development of their coastal populations. Lacking a sound legal foundation on international law based on State practice at that time (no lex lata) to advance these policies as valid legal arguments, the CEP countries launched what truly was an exorbitant claim (de lege ferenda) with little or no prospects of success.49 However, that the adoption of this unilateral 200 nautical mile “maritime zone” could not have been more daring. During those years, the major powers supported the three-nautical mile limit as the maximum width for the territorial sea, considered by these powers as the prevailing rule of customary international law. Although the winds of change favored a larger width for the territorial sea as proved in 1930 at The Hague Convention for the Codification of International Law (when the so-called three-mile rule did not have sufficient votes among the forty-eight participating States to include it in an international convention),50 the establishment of a 200 nautical mile “maritime zone” was neither a valid legal approach nor the most intelligent strategy to benefit the cause favoring a larger territorial sea or the creation of a “resource zone”51 beyond said marginal belt. In sum, from an international law viewpoint, the Santiago Declaration was a unilateral maritime claim by Chile, Ecuador and Peru that was in clear violation of the law of the sea and the State practice in place at that time. Legally, the substance of that surprising declaration did not have any legal basis to support it in the early 1950s as a claim to extend the jurisdiction or control of the coastal State either over the living resources in its adjacent waters or, even less, over 48 49 50

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See Székely. Latin America, supra note 22 at 357–358. Ibid. In the words of Gilbert Gidel, a renowned specialist on the law of the sea, the 1930 Conference became the “death certificate of the three-mile rule.” See supra note 21. It is unquestionable that the Santiago Declaration intended to establish a “maritime zone” for the purpose of utilizing and conserving the natural resources located in that zone, especially living but also non-living. At the same time, said Declaration was explicit in recognizing that the 200 n.m. “maritime zone” did not attempt to disregard “certain limitations established by international law, in favor of the innocent or innocuous passage, through said zone, to the vessels of all nations.” See Santiago Declaration, para V, supra note 39.

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the mineral resources in the seabed and subsoil out to a distance of 200 nautical miles. As expected, the international legal community, and in particular the major powers, reacted vigorously against such an exhorbitant declaration.52 B. Plurality of Legal Regimes Leads to Regional Conferences In a region where no uniformity existed regarding law of the sea matters, the Santiago Declaration produced the effect of inducing coastal States to make marine claims not based on a regional interest but tailored to national considerations, i.e., geographical, geological, biological, etc.,53 that resulted in a plurality of legal regimes on law of the sea claims in that part of the world. In the long run, the number and legal plurality of these exaggerated claims turned out to be a formidable obstacle for Latin America to reach a regional accord on law of the sea matters.54 It seems that the legal heterogeneity of maritime claims produced such a “legal mosaic” that it proved impossible to be consolidated into a unified regional accord. As time passed by, States in that region felt the need of organizing diplomatic conferences to explore avenues to reach that evasive regional accord on the law of the sea or at least “to coordinate” their positions from diplomatic and political viewpoints.55 This led to a series of reunions that instead of producing a common legal ground among the participating States only served to highlight the contrasting legal differences among them. The diplomatic conferences that took place in Montevideo, Lima and Santo Domingo in the early 52

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See, in this regard, Ann L. Hollick. U.S. Foreign Policy and the Law of the Sea. Chile, Ecuador and Peru Coordinate Claims: 1952–1955. Princeton (1981) at 85–102. Some of these “special factors” were originally referred to in the Declaration of Santiago of 1952 and were later reiterated in subsequent legal or political pronouncements, such as the “Principles of Mexico” of 1956; the Montevideo Declaration, paras. I and II (May 8, 1970); and the Lima Declaration, Introduction and para. 2 (August 8, 1970). As to whether there was a “Latin American position on the law of the sea,” there are two schools of thought: those who support it and those against it. In favor of it include, for example, Vargas Carreño. América Latina y el Derecho del Mar. (Latin America and the Law of the Sea), FCE, México,1973; Ricardo Méndez Silva, El Mar Patrimonial en América Latina (The Patrimonial Sea in Latin America), IIJ/UNAM, México, 1974; Felipe Paolillo, Revolución en los Océanos (Revolution in the Oceans), Revista Uruguaya de Derecho Internacional (1972); and Karin Hjertonsson. The New Law of the Sea: Influence of Latin American States on Recent Development of the Law of the Sea, Sijthoff, 1974, etc. Those against it include Francisco García Amador, Ralph Zacklin and especially A. Székely. See this author’s “The Alleged Latin American Position” for a detailed discussion of this topic, supra note 22 at 214–221. Vargas Carreño refers to the efforts made by States in Latin America in their “search for a common position.” América Latina y el Derecho del Mar, Ibid. supra note 6. Some of these conferences were convoked as “coordination meetings.” For example Resolution 3 of the Montevideo Declaration expressly recommended the adoption of certain “Coordination Measures” to the participating States on “legal and scientific matters.” See the Montevideo Declaration in Derecho del Mar, supra note 39 at 246.

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1970s serve to exemplify the lack of regional accord on law of the sea matters at that time. 2. The Montevideo Declaration on the Law of the Sea of 1970 This declaration was formulated at the end of the “Montevideo Meeting on the Law of the Sea” held at the capital of Uruguay on May 4–8, 1970.56 The meeting was attended by the nine States in Latin America with zones extending out to 200 nautical miles.57 This meeting had the only merit of having been a timid attempt to coordinate the diplomatic positions among the States attending this regional conference.58 However, at the end of it, out of a total of nine participating States, eight formulated “declarations” clarifying their respective legal positions as supported by their domestic legislation and distancing themselves from the final Montevideo document.59 From a legal viewpoint, this meeting has been criticized because it did not engage the participating States in negotiating their legal differences and reaching a unified position.60 The Montevideo Declaration reiterated the “natural

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For the official text of the Montevideo Declaration, see Derecho del Mar, supra note 39 at 241–243; declarations by the delegations at 243–244; and Resolutions at 245–248. An English translation of this Declaration (without any other documents) appears in 9 International Legal Materials at 1081–1083 (1970). The language of the Montevideo Declaration is reproduced in Appendix Three at the end of this chapter. The nine states attending this meeting were: 1) Argentina; 2) Brazil; 3) Chile; 4) Ecuador; 5) El Salvador; 6) Nicaragua; 7) Panama; 8) Peru; and 9) Uruguay. All of these states had already established a 200 n.m. territorial sea or a maritime zone subject to some ambiguities; see infra note 65. See W.C. Extravour. The Exclusive Economic Zone. Institut Universitaire of Hautes Etudes Internationales, Geneva (1979) at 145–147; Vargas Carreño, supra note 6 at 46–47; and De la Colina, supra note 10 at 50–51. The following participating states made “declarations:” 1) Argentina, Chile and El Salvador regarding the freedom of navigation and overflight; 2) Brazil on the same questions; 3) Panama on innocent passage and overflight; 4) Peru on freedom of navigation and overflight; 5) Nicaragua on the same questions; and 6) Ecuador on freedom of navigation on the territorial sea. See Derecho del Mar, supra note 39 at 243–244. For an English text see 9 ILM 1081–1083 (1970). Under the Vienna Convention on the Law of Treaties, these “unilateral declarations” are legally equivalent to reservations purporting “to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state.” (Art. 1 (d), Vienna Convention). See also Articles 21, 19–23, Vienna Convention on the Law of Treaties 1155 UNTS 331. Székely legally characterizes this declaration as “a poor instrument,” neither reflecting a unified position nor having a regional support in Latin America. The “alleged intention of the group,” according to this author, was to have the opportunity “to hold a strategy meeting among those who share a common position in order to adopt measures that would attract those who held a different position and to see if it was possible to conciliate all interests for the sake of regional unity.” See Latin America, supra note 22 at 255.

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law” language61 articulated by the CEP countries in the Santiago Declaration of 1952. Accordingly, it did not reflect the progressive changes already made in that region to create a larger marine zone where the coastal State may exercise authority and control over its natural resources for economic purposes without affecting certain freedoms of the high seas. For this reason, this declaration is considered not to reflect the majority position of the Latin American States at that time. A. Basic Principles of the Law of the Sea The Montevideo Declaration of 1970 enunciated these six basic principles: 1. The right of the coastal State to exercise control over the natural resources of the adjacent sea (including the seabed and subsoil) for economic purposes; 2. The right to establish their maritime boundaries according to their geographic and geological characteristics and other factors affecting their adjacent marine resources; 3. The right to explore, conserve and exploit the adjacent marine resources and to regulate fishing and hunting activities; 4. The right to explore, conserve and exploit the natural resources in their respective submarine continental shelves, out to a distance “where the depth of the superjacent waters allows for the exploitation of said resources.” 5. The right to explore, conserve and exploit the natural resources of the seabed and its subsoil up to the outer boundary where the coastal state exercises its marine jurisdiction. 6. The right to enact regulatory measures to achieve the abovementioned goals within the zones of their maritime sovereignty and jurisdiction, without prejudice to the freedom of navigation and overflight of vessels and aircraft of any flag.62 Diplomatically and politically, the Montevideo Declaration was a failure. From a diplomatic viewpoint, the meeting did not succeed in moving the participating 61

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E.D. Brown, after studying the “Basic Principles of the Law of the Sea” formulated by this Declaration reaches the conclusion that “it might have been better if the Declaration . . . had never seen the light of day,” and that said principles “merely serve to reveal the variety of policies still existing even among the nine 200-mile claimants who alone had been invited to the conference.” Lacking in legal arguments, Brown adds that, “in the end, there was room for little but the invocation of the vague natural law arguments customarily resorted to in order to defend claims for which evidence is lacking in the current law,” cited by Székely, Ibid. at 256. These “Basic Principles” have been condensed from the original declaration. The principles were taken from Derecho del Mar, supra note 39 at 242–243.

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States to unify or harmonize the contrasting plurality of their legal regimes on major law of the sea questions at the Latin American level. From a legal perspective, two conclusions may be evident: first, the Montevideo Declaration was prepared and drafted under the powerful influence exercised at this meeting by the CEP countries and by the Santiago Declaration, as reflected in the so-called “Basic Principles” of the law of the sea. It seems that the CEP countries, forming the original hard-core group favoring a legally ambiguous 200 nautical mile “maritime zone” (that eventually led to the formation of the group known as the “Territorialists”), were able to incorporate the philosophy and the legal content of their unilateral pronouncement in 1952 into the language of the Montevideo Declaration.63 The “Territorialist” group became known because of its extreme legal posture strongly supporting a territorial sea of 200 nautical miles and represented the most difficult obstacle in the negotiations to be later conducted at UNCLOS III between the Group of the 77 and the major powers in their search for a compromise formula that was finally found in the novel concept of the Exclusive economic zone. The second conclusion is that the relative legal authoritativeness that could have endowed the “Basic legal principles of the Law of the Sea” never materialized. Although the nine participating States did sign the Montevideo Declaration on May 8, 1970, all of them (with the exception of the host country), formulated “declarations” legally equivalent to reservations.64 The legal effect of these numerous “declarations” not only “neutralized” the basic principles but turned them into legally inoperative statements. The Montevideo Declaration lost a unique opportunity of adopting a more reasonable and conciliatory position regarding the legal content of the 200 nautical mile “maritime zone,” ambiguously defined until then as an area under the “sovereignty and jurisdiction” of the coastal State. That conciliatory position

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During the 1970s, CEP countries were engaged in a vigorous diplomatic campaign to advance the “thesis of the 200 nautical miles,” whether as a “maritime zone” or as a territorial sea. These activities, particularly those embraced by Peru, encompassed not only Latin America but also included Africa and Asia. See, for example, the opening speech to the Lima meeting by Gen. Edgardo Mercado Jarrin, Secretary of Foreign Affairs of Peru. Exposiciones Oficiales Peruanas (Official Pronouncements by Peru). Ministerio de Relaciones Exteriores, Lima (1972) at 11–18 and 51, 130 (Asian-African Legal Consultative Committee, Lagos and Colombo, 1971 and 1972). Most of the “declarations” by the participating States (Argentina, Chile, El Salvador, Brazil, Peru, Nicaragua and Ecuador) were formulated in relation with Paragraph Six of the Montevideo Declaration, infra note 84 and the accompanying text, relative to the “freedom of navigation” and “overflight” as these notions apply to the 200 n.m maritime zone, as interpreted by those States. The specific language of the “declarations” appears in Derecho del Mar, supra note 39 at 243–244.

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could have made an effort to move in the legal direction of the “Patrimonial Sea” or the exclusive economic zone. 3. The Lima Declaration of Latin American States on the Law of the Sea of 1970 This meeting took place in Lima, Peru, August 4–8, 1970, just a few months after the Montevideo reunion.65 In his welcoming remarks, Gen. Edgardo Mercado Jarrin, Peru’s Secretary of Foreign Affairs, reiterated that “the expansion of maritime jurisdictions for economic purposes and the principle of freedom of the seas could be mutually reconciled,” and that “each State is to establish its own maritime boundaries based on their own geographic and geological characteristics and their need for a rational utilization.”66 He concluded that [T]he only solution, viable and satisfactory, is the acceptance of the plurality of [legal] regimes, taking into account the particular circumstances of the states so these can establish regional systems in accordance with the mandates of Nature.67

Given the varied and larger number of participating States at the Lima reunion,68 this was a truly regional meeting with the direct involvement of all the eighteen countries in Latin America in addition to States from other regions, a number of international organizations and special guests.69

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The Lima meeting was organized pursuant to Resolution 3 of the Montevideo Declaration. (Originally, Ecuador proposed to be the venue of “a forthcoming meeting on the law of the sea”). See Gen. Mercado Jarrin’s welcoming speech, Latin American Reunion on the Law of the Sea, August 4, 1970, supra note 63 at 17, 11–18. Ibid. at 17. The essence of this statement is reproduced in Rationale number nine in the Lima Declaration. The meeting was attended by the following eighteen states who voted in favor of the Lima Declaration: 1) Argentina; 2) Brazil; 3) Colombia; 4) Chile; 5) Ecuador; 6) El Salvador; 7) Guatemala; 8) Honduras; 9) Mexico; 10) Nicaragua; 11) Panama; 12) Peru; 13) Dominican Republic; and 14) Uruguay. In addition, 15) Bolivia; 16) Paraguay; and 17) Venezuela, who voted against the declaration. 18) Haiti and 19) Costa Rica were represented at the meeting jointly with these Observers: 20) Canada; 21) South Korea; 22) India; 23) Iceland; 24) United Arab Republic; 25) Senegal; and 26) Yugoslavia; and international organizations: the United Nations (UN) and the Organization of American States (OAS) and these Special guests: the Secretary of the Permanent Commission of the South Pacific (CPPS) and the Legal Secretary of same Commission. Acta Final de la Reunión Latinoamericana sobre Aspectos del Derecho del Mar, celebrada en Lima, República del Perú, del 4 al 8 de Agosto de 1970 (Final Minute of the Latin American Meeting on the Law of the Sea). Taken from Derecho del Mar, supra note 39 at 249–251. Reproduced in English in UNGA Doc. A/AC.138/28 of August 14, 1970 and 10 International Legal Materials 207–214. The language of the Lima Declaration is reproduced in Appendix Three at the end of this chapter.

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The Lima Declaration deserves special recognition because in its Resolutions it formulated a well-designed plan, practical and clear, to coordinate the diplomatic actions of all the countries in the region with respect to key law of the sea questions to be discussed at the United Nations in the forthcoming session of its General Assembly (September 1970) and at the U.N. Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction. The recommended coordination measures were fully embraced by all the Latin American participating States and contributed to produce a diplomatic sense of commonality among them. The Lima Declaration may be divided into four parts: a) Rationales; b) Common Principles on the Law of the Sea; c) Declarations; and d) Resolutions. A. Rationales In general, the rationales are virtually the same as those in the Montevideo Declaration, underlining natural law principles premised upon the notion that there is “a geographical, economic and social nexus connecting the oceans, land and man,” and that from this relationship results a “legitimate priority” in favor of the coastal populations for the utilization of the natural resources in the adjacent sea. This philosophical premise, already found in the Santiago Declaration of 1952, was originally formulated by Dr José Luis Bustamante Rivero, President of Peru, in his Decree No. 781 of August 1, 1947 establishing Peru’s “sovereignty and jurisdiction in the ocean out to 200 nautical miles.”70 Interestingly, Rationales numbers four and five, respectively, point out that: . . . certain forms of utilization of the marine environment have been producing grave dangers of contamination of the waters and adversely affecting the ecological balance that require the adoption by the coastal States of measures destined to protect the health and the interests of their population. . . . marine scientific research requires the widest cooperation of states so those who provide it share in their benefits, without prejudice of the authorization, surveillance and participation of the coastal State when said investigation is conducted within the boundaries of its [marine] sovereignty or jurisdiction.71

These two rationales address two new topics of the law of the sea that had not been traditionally discussed in previous meetings in Latin America. Therefore,

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See the speech by Gen. Miguel Angel de la Flor Valle, Secretary of Foreign Affairs of Peru, to commemorate the 25th anniversary of the Supreme Decree No. 781, of July 31, 1972 in Official Pronouncements by Peru, supra note 63 at 5–10. Declaración de Estados Latinoamericanos sobre el Derecho del Mar (Declaration of Latin American States on the Law of the Sea). Approved by the Latin American Reunion on Aspects of the Law of the Sea, Lima, August 4–8, 1970. Taken from Derecho del Mar, supra note 39 at 249–250 and reproduced in English at 10 International Legal Materials at 207–214 (1971).

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these two novel topics, i.e., the protection and preservation of the marine environment and the legal regime applicable to the conduct of marine scientific research activities, represent unique contributions to the new law of the sea that, jointly with the Exclusive economic zone, can be validly characterized as contributions made by Latin America to the new law of the sea.72 B. Common Principles of the Law of the Sea Like its predecessor a few months earlier, the so-called “Common principles” of the Lima Declaration maintain a very close legal symmetry with the Montevideo Declaration73 save for Principles 4 and 5 which read: 4. The right of the coastal State to prevent the contamination of the waters and other dangerous and harmful effects that may result from the use, exploration and exploitation of the marine environment adjacent to its coasts; 5. The right of the coastal State to authorize, monitor (Vigilar) and participate in all the marine scientific research activities that may be conducted in the maritime zones subject to its sovereignty or jurisdiction,74 and to receive the data and the results obtained from said activities.75

These fourteen States voted in favor of the Lima Declaration: 1) Argentina; 2) Brazil; 3) Colombia; 4) Chile; 5) Dominican Republic; 6) Ecuador; 7) El Salvador; 8) Guatemala; 9) Honduras; 10) Mexico; 11) Nicaragua; 12) Panama; 13) Peru; and 14) Uruguay. These three States voted against it: 15) Bolivia; 16) Paraguay; and 17) Venezuela. The only abstention came from 18) Trinidad and Tobago.76

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These two topics were included as Principles 4 and 5, and also in Resolutions 3 and 5, respectively, of the Lima Declaration and eventually incorporated in Parts XII (Arts. 192–237) and XIII (Arts. 238–278) of the 1982 U.N. Convention on the Law of the Sea. See De la Colina, supra note 10 at 51–53. It must be noted that the Lima Declaration utilized the phrase “sovereignty or jurisdiction” thus departing from the traditional phrase of “sovereignty and jurisdiction” characteristic of the Santiago and Montevideo Declarations. This may denote an attempt to be more precise in the use of law of the sea terminology, separating the legal meaning of “sovereignty” (a term usually associated with the territorial sea) from the use of the term “jurisdiction” (normally applied to “functional” marine zones beyond the territorial sea, such as the contiguous zone), where the coastal State only projects certain jurisdictions for specific purposes such as immigration, customs, sanitary considerations, etc. On the other hand, it may also denote an acknowledgment of the plurality of legal regimes associated with certain marine spaces. Taken from Derecho del Mar, supra note 39 at 251 (Emphasis added ). Ibid. at 251.

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C. Resolutions The Lima Declaration is unique for the large number of Resolutions approved by the participating States and for the specific recommendations or guidelines contained in a total of six Resolutions. Resolution 1 referred to the seabed and ocean floor beyond the limits of national jurisdiction and recommended that the participating governments give priority to preparing a “Declaration of principles” on this matter. This recommendation eventually translated in the “solemn declaration” overwhelmingly approved by the United Nations General Assembly in December of that year that the seabed and ocean floor beyond the limits of national jurisdiction, and its resources, constitute “the Common heritage of humankind.”77 Resolution 2 recommended the Lima participants to vote in favor of the United Nations to organize a general conference on the law of the sea (not a limited one) since “all the marine topics are closely interconnected.” This recommendation was incorporated in UNGA Resolution 2749-I on December 17, 1970.78 Resolution 3, taking into consideration UNGA Resolution 2467-B, recommended to the participating States to the Lima Reunion: [T]o adopt provisions and measures they consider adequate to prevent, control and mitigate or eliminate the contamination and other dangerous and harmful effects resulting from the exploration, exploitation and utilization of the adjacent sea and its seabed and subsoil, that may affect the interests of their peoples, in the exercise of the rights by the coastal state to protect its maritime patrimony.79

Resolution 4 contained a strong recommendation to vote in favor of a treaty to prohibit the emplacement of nuclear and other weapons of mass destruction in the seabed and ocean floor. This recommendation was made in symmetry with the traditional Latin American policy to create non-nuclear zones in strategic parts of the world, as exemplified by the Tlatelolco Treaty.80 77

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Originally proposed by Amb. Arvid Pardo, of Malta, in his eloquent and historical speech before the United Nations of November 1, 1976, the U.N. General Assembly approved this declaration in Resolution 2749-XXV (December 17, 1970). See A. Pardo. “Who will control the seabed?,” 47 Foreign Affairs (1968) at 123–127; and A. Pardo and V. Gucci. The Seabed: Common Heritage of Mankind, 8 War-Peace Report (1968) at 3. See U.N. Document, UNGA Resolution 2467-b. (December 17, 1970). Resolution 3, see Derecho del Mar, supra note 39 at 260. Part XII of the 1982 U.N. Convention on the Law of the Sea addressed the Protection and Preservation of the Marine Environment. The Tlatelolco Treaty was the informal name given to the “Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean,” signed on February 14, 1967 at Tlatelolco, the historical bastion of the last resistance against the Spaniards in 1521, and today’s the official venue of Mexico’s Secretariat of Foreign Affairs (SRE) in Mexico City. This Treaty entered into force on April 25, 1969, and created the very first Nuclear-Weapon Free

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Resolution 5 recommended to the participating governments to the Lima Reunion: 1. To maintain a permanent exchange of ideas to coordinate and harmonize their positions in any fora that may discuss legal problems regarding scientific research in the oceans; 2. To adopt a common criterion regarding the convenience that said problems should be jointly addressed within the United Nations in order for the developing countries, and in particular those in Latin America, may actively participate in the formulation of the norms expected to be adopted; 3. To reaffirm: a. That all scientific research carried out within the maritime jurisdiction of the State shall be subject to this State’s previous authorization and must conform to the conditions established in said authorization; b. That the coastal State has the right to participate in any research to be carried out within its jurisdiction and to obtain benefits out of the data obtained therefrom; c. That all the samples obtained as a result of research of this kind shall become the property of the State under whose jurisdiction is being carried out and that said samples may only be appropriated by the [researching institution] if the coastal State expressly consents to it; and d. That any scientific research authorized as such must maintain its strict and exclusive scientific nature.81

Indeed, the above enunciated rules or principles represent the most detailed formulation of the content of the legal regime ever to be produced by any State, or geographical group, regarding the conduct of scientific research offshore a coastal State. These proposed rules clearly articulate some of the key legal principles later incorporated as part of the so-called “Consent Regime” that was included in Part XIII of the 1982 U.N. Convention on the Law of the Sea.82 In conclusion, marine scientific research and the protection and preservation of the marine environment may be described as the most novel, original and important legal questions addressed at the Lima Reunion. These two legal topics were included in anticipation of the informal and preliminary discussions being conducted at the United Nations at that time as a preamble to the formal convocation of UNCLOS III.

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Zone in the world. Today all the countries in Latin America and the Caribbean (including Cuba) have become a party to it. Alfonso Garcia Robles, the Mexican diplomat and Secretary of Foreign Affairs who authored this multilateral instrument received the Nobel Peace Prize in 1982 for his valuable contribution to the cause of peace in the world. See Derecho del Mar, supra note 39 at 262–263. This language was added to distinguish marine scientific research from resource-oriented research (also known as applied research). See Part XIII: Arts. 238–278 of the 1982 U.N. Convention on the Law of the Sea, in particular Art. 240 and 245, 246 and 249, having some similarity with the rules proposed by the Lima Declaration in 1970.

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Resolution 6 recommended the establishment of an Ad-Hoc Permanent Coordination Committee in New York, where the works of the forthcoming Law of the Sea Conference were to take place, in order to exchange ideas, analyze and disseminate policies and legal positions, propose “lines of action” to promote and protect “the common interests of developing countries” and create “Special Commissions” to address specific topics.83 The Lima Declaration of 1970 underlined the importance that the law of the sea questions should be elevated at the global level and be discussed within the diplomatic context of the United Nations for the benefit of all developing States. While taking into account the “plurality of existing legal regimes” pertaining to the ocean space within Latin America, the Lima meeting emphasized the practical convenience of all States in Latin America “to agree on a common position” on the major law of the sea questions in diplomatic symmetry with other delegations that shared similar interests especially at the United Nations. Through the adopted Resolutions, the Lima Declaration recommended “specific strategies” to be adopted, supported and widely disseminated among developing States in other parts of the world, either directly or through the regional groups and the “Group of the 77” for more effective results. 4. The Declaration of Santo Domingo of 1972 A. Legal Content and Analysis This declaration articulated for the first time as part of the law of the sea the novel Latin American concept of the “Patrimonial Sea” that was later incorporated in the 1982 U.N. Convention on the Law of the Sea under a different name: the exclusive economic zone. This regional pronouncement has been recognized as a practical, legally precise and politically important contribution produced in the 1970’s by the ten Caribbean States that signed this declaration at the end of the “Specialized Conference of Caribbean Countries concerning the Problems of the Law of the Sea,” held at Santo Domingo de Guzmán, capital of the Dominican Republic, on June 9, 1972.84 These States were the following: Colombia, Costa Rica, Dominican Republic, Guatemala, Haiti, Honduras, 83 84

See Derecho del Mar, supra note 39 at 263–264. The final declaration was signed on June 9, 1972 by the Ministers of Foreign Affairs of nearly all of the participating countries: 1) Colombia; 2) Costa Rica; 3) Dominican Republic; 4) Guatemala; 5) Haiti; 6) Honduras; 7) Mexico; 8) Nicaragua; 9) Trinidad and Tobago; and 10) Venezuela. The following countries attended the conference but did not sign the resulting declaration: 11) Barbados; 12) El Salvador; 13) Guyana; 14) Jamaica; and 15) Panama. The Santo Domingo Declaration (unlike the previous regional declarations) was issued in Spanish, English, French, each text being equally authentic, which indicates the intention of the parties to disseminate this document beyond the Caribbean regional context and in preparation of the forthcoming discussions on the law of the sea at the United Nations. For an English transla-

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Mexico, Nicaragua, Trinidad and Tobago and Venezuela. The resulting declaration received no votes against it with five abstentions (Barbados, El Salvador, Guyana, Jamaica and Panama). As soon as this Declaration became known at the international level, it was well-received as a positive effort to reach a compromise between the two opposite trends present in any law of the sea discussions at that time: States who strongly advocated a 200 nautical mile claim over all marine resources in the adjacent sea for economic reasons, on the one hand, and those nations who firmly supported a rather narrow traditional territorial sea coupled with a generous notion of the high seas where all the traditional freedoms of the seas run unimpeded and were clearly recognized, on the other. Law of the sea experts made favorable comments and expressed their support for the “Patrimonial Sea” as a legal route that may eventually lead into a much awaited compromise between the two opposite law of the sea trends.85 In fact, the Latin American notion of the “Patrimonial Sea,” under its new semantic characterization of an “Exclusive Economic Zone” became a major cornerstone in the final and successful construction of the new law of the sea. Adhering to the practice already established by the Montevideo and Lima declarations, the Declaration of Santo Domingo enunciated certain “legal principles” associated with five marine spaces under the sovereignty or jurisdiction of the coastal State.86 These legal principles were considered reasonable and objective because they were derived from a widely recognized pattern of State practice prevailing at that time. In symmetry with the Montevideo and Lima pronouncements but in contrast with the Santiago Declaration of 1952 – which became domestic legislation in force for each of the three signatory countries:

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tion of this declaration, see 66 AJIL 918 (1972) and 11 ILM 892 (1972). The language of the Declaration of Santo Domingo is reproduced in Appendix Three at the end of this chapter. See, for example, Jorge Castañeda. The Concept of the Patrimonial Sea in International Law, 12 Indian J. of Int’l Law (1972) at 535–542; Andres Aguilar. The Patrimonial Sea or Economic Zone Concept, 11 San Diego L. Rev. 579 (1973–74); Alfredo Vázquez Carrizosa. El Mar Patrimonial: Definición y Aplicaciones con Miras a un Acuerdo Regional (The Patrimonial Sea: Definition and Applications in Light of a Subregional Accord); La Doctrina Colombiana del Mar Patrimonial (The Colombian Doctrine of the Patrimonial Sea); and El Mar Patrimonial en la Conferencia de Caracas (The Patrimonial Sea at the Caracas Conference), all of these works in El Nuevo Derecho del Mar (The New Law of the Sea), Temis, Bogotá (1976), passim; F.V. García Amador. The Latin American Contribution to the Development of the Law of the Sea, 68 AJIL (1974) at 33–50; and L.D.M. Nelson. The Patrimonial Sea, 22 Int’l & Comp. L.Q. 668 (1973); and J.A. Vargas, The Legal Nature of the Patrimonial Sea: A First Step towards the Definition of the Exclusive Economic Zone. 22 German Yearbook of International Law (1979) at 142–177. These areas included: a) Territorial Sea; b) Patrimonial Sea; c) Continental shelf; d) International Seabed; e) High seas; f ) Marine pollution; and g) Regional cooperation.

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Chile, Ecuador and Peru87 – the legal principles of this Caribbean declaration did not become domestic legislation in any of the participating Caribbean States. The purpose of this regional conference was not legislative in nature. Instead, it constituted a diplomatic effort of a conciliatory tone seeking to reach uniformity at the regional level and, at the same time, present the novel space of the so-called “patrimonial sea” as a compromising formula to assist the international legal community in reaching a constructive legal and diplomatic outcome on major law of the sea matters within the context of the United Nations. The participating States at this Caribbean meeting were well aware of the opposition by the major maritime powers to the exaggerated claim of having a 200 n.m. territorial sea, or to similar extensions in legally ambiguous “maritime zones” under the “sovereignty and jurisdiction” (sic) of the coastal State. So, familiar with the problems that this legal ambiguity had produced among developed States, the participating countries at Santo Domingo decided to separate themselves from this ambiguous but extreme position. In light of the discussions already taking place at the United Nations towards the formulation of a new legal regime for the oceans on a universal scale, the Caribbean States reached the conclusion that the “200-mile approach” (whether as an ambiguous maritime zone or as an exaggerated territorial sea) was an extreme position unlikely to succeed at the United Nations level. In other words, it had exhausted its diplomatic value as a negotiating strategy. Accordingly, the Santo Domingo conference was ready for a substantial legal change. Thus, the Caribbean States assumed their responsibility to make their best effort to formulate a new marine space whose raison d’être was to conciliate the two major opposing blocs, i.e., the “Territorialist group” and the major maritime powers. Without reaching a much needed practical compromise between the legal positions between these two antagonistic groups, the expectation of exercising economic rights over adjacent marine areas envisioned by a large number of developing countries was likely not to ever become a reality. That new marine space was the “Patrimonial Sea.” This Latin American legal novelty in ocean law was expressly crafted at Santo Domingo to unlock the legal and diplomatic impasse that had prevailed on a global scale for quite some time in the area of the law of the sea. Mexico, Colombia and Venezuela played a constructive role in the drafting of the final declaration and in the formulation of the legal content of the “Patrimonial Sea.”88 However, for diplomatic and political reasons, the name of this new marine space was later changed to 87

88

For the text and discussion relative to the Santiago Declaration, see supra notes 39–52, and the accompanying texts. See De la Colina, supra note 10 at 52–54. Székely points out that Mexico, Colombia and Venezuela became active participants at this conference, forming some kind of an alliance that gave them “the leadership in favor of the 200 n.m. movement, in its moderated version

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“exclusive economic zone” to gain the support not only of other States in Latin America but of countries with similar economic interests in Africa and Asia and eventually obtain the acceptance of the international legal community. The patrimonial sea has been characterized as a “significant landmark” in the evolution towards the notion of the exclusive economic zone.89 These Caribbean States, tired of the sterility and antagonism that had prevailed between those two opposing groups for a couple of decades, put forward a legally cogent conciliatory position – reasonable and legally precise – that was formulated to serve as a sound legal basis for discussion to pave the way to a necessary and long-delayed compromise between the “Territorialists” and the major maritime powers. This Declaration is composed of the following seven sections: 1) Territorial Sea; 2) Continental Shelf; 3) International Seabed; 4) High Seas; 5) Marine Pollution; 6) Regional Cooperation; and 7) Patrimonial Sea.90 a. Territorial Sea The participating Caribbean States at the Santo Domingo conference took advantage of this important diplomatic event to openly separate from the exorbitant claim advanced by the “Territorialists” in favor of a 200 n.m. territorial sea, sending a clear message to the international legal community already contemplating the convocation of a law of the sea conference by the United Nations. First, the declaration reiterated in its opening paragraph, in consonance with the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, the tenor of its Article 1.1 in the sense that: 1. The sovereignty of the coastal State extends, beyond its land territory and its internal waters, to an area of the sea adjacent to its coasts, described as the territorial sea, including the superjacent air space as well as the subjacent seabed and subsoil.91

The second paragraph underlines the importance that the width of this marine space and the manner of its delimitation “be the subject of an international agreement, preferably of a worldwide scope,” thus departing from giving recognition to the exaggerated unilateral claims advanced by the so-called “Territorialist” States. Also, the participating countries expressed their hope that

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of the patrimonial sea” that later gained wider support within the UNCLOS III negotiations. See Székely, supra note 22 at 107. See Extravour, supra note 58 at149 and the numerous authors in supra note 85. In the original text, the “Patrimonial Sea” appeared as number two. For practical reasons, given the salient importance of this novel and key legal concept, “Patrimonial Sea” was placed at the very end as number 7. Santo Domingo Declaration, para. 1. (The Italics underline insignificant departures by the Santo Domingo Declaration in comparison with the 1958 Geneva Convention).

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this international agreement “be the subject of an international agreement . . .of a worldwide scope,” such as was the conference being contemplated by the United Nations. The second paragraph reads: [T]he breadth of the territorial sea and the manner of its delimitation should be the subject of an international agreement, preferable of a worldwide scope. In the meantime, each State has the right to establish the breadth of its territorial sea up to a limit of 12 nautical miles, to be measured from the applicable baseline.92

Regarding the breadth of the territorial sea, the participating States at the Santo Domingo conference decided to be explicit and clearly adhere to what they considered was a widespread rule of customary international law, namely: a traditional territorial sea belt not wider than 12 nautical miles.93 This paragraph sent two important messages: one to the “Territorialist” States and a second one to the major maritime powers. To the first group, the message suggested that the signatory States were not in support of a legally ambiguous “maritime zone,” let alone a territorial sea of 200 nautical miles, but in favor of a traditional or strictu sensu interpretation of the territorial sea. To the major maritime powers, the message was that although in favor of a traditional interpretation of the territorial sea notion, global State practice at that time was decidedly in favor of a breadth of the territorial sea “up to a [maximum] limit of 12 nautical miles,” depending upon the specific circumstances of each individual State.94

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Santo Domingo Declaration, Territorial Sea, para. 2, 11 ILM 892 (1972), supra note 84 at 892. Inter alia, these countries were of the opinion, as asserted by Gilbert Gidel in 1934, that the so-called “rule” favoring a three-nautical mile territorial sea only signified “the minimum width of the territorial sea.” Based on the fact that, at that time, two-thirds of the coastal states on a global scale had already established a territorial sea of no less than three nautical miles and no more than 12 nautical miles, the participating states at the Santo Domingo conference supported a maximum width of 12 nautical miles for a territorial sea, considering this width to be in symmetry with international law. In addition, the International Law Commission of the U.N. declared in 1986 that “international law did not authorize to extend the territorial sea beyond 12 nautical miles” and that this width “should be established by an international conference;” opinions that was reflected in the language of the Santo Domingo Declaration. Since the very beginning of the discussions at the United Nations on law of the sea questions, Mexico advocated in favor of what was considered by Amb. Jorge Castañeda “the only universal solution: a territorial sea, namely, a zone under full sovereignty, of 12 nautical miles, inseparably joined by a zone of economic jurisdiction out to a maximum width of 200 nautical miles (including the territorial sea), whose width may vary according to local circumstances but, in any case, not larger than 200 nautical miles from the corresponding baselines.” See his article, The Concept of the Patrimonial Sea in International Law, supra note 122 at 538. See also J. Castañeda. El Concepto de Mar Patrimonial en el Derecho Internacional, Obras Completas: Derecho del Mar, supra note 7 at 40.

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Thus, influenced by the traditional position held by Mexico and Colombia that a coastal State has the right to establish a territorial sea not to exceed 12 nautical miles,95 the Caribbean States agreed that, absent an “international agreement of a world wide scope,” coastal States had “the right to establish the breadth of the territorial sea up to a limit of twelve nautical miles to be measured from the applicable baseline.” Widespread international State practice at that time strongly supported this territorial sea limit. The Mexican proposal for the right to establish a territorial sea up to a limit of 12 nautical miles – which that country advanced since 1956 and became a part of its diplomatic and legislative policies on the law of the sea96 – was eventually reflected in the language of the Santo Domingo Declaration and in the 1982 U.N. Convention on the Law of the Sea.97 It is worth noting that – contrary to the position of the “Territorialists” – the legal notion of the territorial sea incorporated in the Declaration of Santo Domingo adheres to the classical concept of this marginal belt as defined by the 1958 Convention on the Territorial Sea and the Contiguous Zone.98 Paragraph 3 of the section on the “Territorial Sea” of the Santo Domingo Declaration explicitly recognizes that “Ships of all States, whether coastal or not, should

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At the Specialized Inter-American Conference on the Preservation of the Natural Resources held in Ciudad Trujillo, Dominican Republic, on March 15–28, 1956, Mexico made two important declarations stating that: “1) There is no general norm of international law establishing the width of the territorial sea,” and “2) Each State has the right to establish the width of the territorial sea out to reasonable limits.” Later on, Alfonso García Robles proposed at the Inter-American Juridical Committee ( July 21, 1965) a resolution that was unanimously adopted, reading: “1) Any American State has the right to establish the width of its territorial sea out to a limit of 12 nautical miles measured from the applicable baseline” (See Doc. CJI-80, December 1965). This language is identical to the final part of paragraph 2, section on the “Territorial Sea,” of the Santo Domingo Declaration. See De la Colina, México y el Régimen del Mar, supra note 10 at 62–64. See also the “declaration” made by Mexico to the Lima Declaration of 1970: “The right of the coastal State to establish the limits of its maritime sovereignty in accordance with reasonable criteria, is to be interpreted in the sense that said limits may extend out to 12 nautical miles.” See supra note 39 and the accompanying text. Ibid. Article 3 of the 1982 LOS Convention reads: “Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from the baselines determined in accordance with this Convention.” Article 14.1 of this 1958 Convention explicitly recognizes that “[S]hips of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea,” including the proviso that “submarines are required to navigate on the surface and to show their flag” (Art. 1, para. 6) and that “The coastal State must not hamper innocent passage through the territorial sea.” (Art. 15, para. 1). This Convention was adopted by the (first) U.N. Conference on the Law of the Sea, April 29, 1958 (U.N. Doc. A/CONF.13/L.52).

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enjoy the right of innocent passage through the territorial sea, in accordance with international law,” thus reproducing the language of the 1958 Convention.99 The fact that ten of the participating Caribbean States did sign the Declaration of Santo Domingo without making any declarations or reservations to this interpretation of the territorial sea constitutes another constructive diplomatic step, namely: these States recognized a territorial sea in the terms established in the 1958 Territorial Sea Convention. Legally and diplomatically, a maximum width of 12 nautical miles for a traditional notion of the territorial sea,100 jointly with the formulation of the novel concept of the “Patrimonial Sea” – introduced for the first time to the international legal community via a regional Latin American instrument – were two of the major accomplishments produced by the Santo Domingo Declaration. b. Continental Shelf Adhering to the 1958 Geneva Convention on the Continental Shelf,101 the first two paragraphs of the Santo Domingo declaration (Continental shelf section) are a verbatim reproduction of Article 1, para. 1(a) and para. 2, of said Convention.102 Those two paragraphs of said declaration read: 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The continental shelf includes the seabed and subsoil of the submarine areas adjacent to the coast, but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits the exploitation of the natural resources of the said areas.103

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Ibid. A few months after the Santo Domingo conference, in his Dissenting Opinion in the Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland ), Judge Luis Padilla Nervo wrote: “At the present time (and since the two Conferences on the Law of the Sea took place) it has been a universal understanding that any coastal State has the right to extend to a distance of 12 miles its territorial waters.” 1973 ICJ 49, General List No. 56, February 2, 1973. See Articles 2.1, 1(a), Convention on the Continental Shelf, adopted by the (first) U.N. Conference on the Law of the Sea, April 29, 1958 (U.N. Doc. A/CONF.13/L.55). Article 2.1 of the 1958 Convention on the Continental Shelf reads: “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.” This language is identical to para. 1, Continental Shelf, of the Santo Domingo Declaration. Art. 1.1 of same Convention is reproduced in para. 2, Continental Shelf section, of the 1972 Declaration (except for the reference that the continental shelf applies also to islands). Specialized Conference of Caribbean Countries concerning the Problems of the Sea: Declaration of Santo Domingo [done at Santo Domingo de Guzmán, June 9, 1972], 11 ILM 892 (1972). The language of this Declaration is reproduced in Appendix Three at the end of this chapter.

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However, in another section, the regional declaration departed from the Geneva Convention in two significant ways: first, it stated that “[I]n that part of the continental shelf covered by the patrimonial sea, the legal regime provided for this area shall apply.”104 Thus, the seabed and subsoil of the submarine areas adjacent to the coast but outside the territorial sea (regardless of the geological or physical characteristics of that submarine area and its subsoil), out to 200 nautical miles, is to be legally characterized as the continental shelf.105 In contrast, the 1958 Continental Shelf Convention defined two types of continental shelf: (i) A “physical” or geomorphological continental shelf consisting of “the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters;” and (ii) A “legal” continental shelf situated beyond a depth of 200 meters “to where the depth of the superjacent waters admits of the exploitation of the natural resources of said submarine areas,”106 commonly known as the continental shelf resulting from the application of the “Exploitability criterion.” Therefore, these two types of continental shelf were irrelevant to the Declaration of Santo Domingo. Whether the coastal State had any geomorphological formations outside the territorial sea to a depth of 200 meters or not, or said coastal State had the technical capability of exploiting the natural resources in submarine areas beyond the 200 meter-depth or not, these factors did not make any difference whatsoever to said Declaration. Regarding that part of the submarine areas beyond the patrimonial sea, the Santo Domingo declaration stated that said submarine areas shall be subject to “the regime established for the continental shelf by international law.” Interestingly, at that time, the submarine “limits of national jurisdiction beyond 200 nautical miles” were still legally undefined by international law. There was no international law applicable to the submarine area beyond 200 nautical miles that consisted, under the then existing traditional interpretation, of the seabed and ocean floor of the area known as the high seas. Furthermore, no one at that time could ascertain whether the legal notion of “continental shelf ” was going to be recognized to exist, under international law, beyond 200 nautical miles. Therefore, when the Caribbean conference was taking place, the international law applicable to the “continental shelf ” beyond 200 nautical miles was in fieri; 104 105

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See the Declaration of Santo Domingo, “Continental Shelf,” para. 4. This interpretation would allow coastal states with a short geomorphological continental shelf (or no physical shelf at all) to legally claim a maximum 200 n.m. “Continental shelf,” depending upon the geographical characteristics of the coastal State. The Santo Domingo interpretation was incorporated in the final part of paragraph 1 of Article 76 of the 1982 U.N. LOS Convention. Otherwise, for States with an extended submarine continental shelf, the outer limit of this submarine space would reach out to the “outer edge of the continental margin,” as defined by said Article. Art. 1, paras. (a) and (b), 1958 Convention on the Continental Shelf.

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there was no agreed international law regime for that submarine area. In light of these considerations, it is understandable that paragraph 3 of the Continental shelf section of the Santo Domingo Declaration prescribed: 3. In addition, the States participating in this Conference consider that the Latin American Delegations in the Committee of the Seabed and Ocean Floor of the United Nations should promote a study concerning the advisability and timing for the establishment of precise outer limits of the continental shelf taking into account the outer limits of the continental rise.107

In the final analysis, the 1982 U.N. Convention on the Law of the Sea included two of the proposals from the Declaration of Santo Domingo regarding the continental shelf: first, that the outer limit of the submarine continental shelf is to coincide with the outer boundary of the Exclusive economic zone,108 known in 1972 as the “Patrimonial Sea.” And second, that the geomorphological outer limit of the continental shelf may extend out “throughout the natural prolongation of its land territory to the outer edge of the continental margin.” Although from a technical viewpoint the “continental rise” is different from the “continental margin,” the continental rise physically constitutes the outer part of the continental margin abutting to the abyssal plain which forms the seabed and ocean floor in general.109 The idea expressed in the 1972 Santo Domingo Declaration that the outer limit of the geomorphological extension of the submarine area, whether technically defined as the continental margin (as the 1982 U.N. Convention predicates today) or as the continental rise (as proposed in the 1972 Declaration), is to be considered as the outer boundary of the geomorphological continental shelf. In essence, the “continental margin” was included in the 1982 Convention to define the outer boundary of the continental shelf beyond 200 nautical miles.110 The determination of this geomorphological point is so difficult to establish that Art. 76 of the 1982 Convention provided several technical guidelines for that purpose and established a Commission on the Limits on the Continental 107

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Declaration of Santo Domingo, supra note 84, “Continental shelf,” para. 3 (emphasis added ). See Art. 76, para. I, of the 1982 UN LOS Convention. See E.D. Brown, supra note 8, in particular Figure 10.1, The Continental Margin, Vol. 1 at p. 141. The continental margin is composed of the “continental terrace” as an extension of the land mass and the “continental rise” that may range up to 620 miles from shore. Both the continental margin and the continental rise reach into the abyssal plain, i.e., the seabed and ocean floor. Art. 76, para. 3, of the UN LOS Convention prescribes: “The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.”

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Shelf 111 “to make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf.”112 c. International Seabed This section of the Declaration of Santo Domingo embraced the United Nations Resolution 2749 (XXV)113 declaring that the seabed and ocean floor beyond the limits of national jurisdiction are the common heritage of humankind. The declaration read: 1. The seabed and its resources, beyond the patrimonial sea and beyond the continental shelf not covered by the former, are the common heritage of humankind, in accordance with the Declaration adopted by the General Assembly of the United Nations in Resolution 2749 (XXV) of December 17, 1970. 2. This area shall be subject to the regime to be established by international agreement, which should create an international authority empowered to undertake all activities in the Area, particularly the exploration, exploitation, protection of the marine environment and scientific research, either on its own, or through third parties, in the manner and under the conditions that may be established by common agreement.114

The U.N. Resolution 2749 (XXV) received the support of the developing world, in particular the Group of the 77, when it was voted at the United Nations in December of 1970. Accordingly, the inclusion of this topic in this Caribbean declaration was a mere reflection of the wide support this resolution received at that time and later on throughout the work of the First Committee of UNCLOS III. Eventually, this matter was included in the 1982 Convention.115

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Regarding the outer limit of the continental shelf beyond 200 nautical miles, Mexico, as a party to the 1982 LOS Convention, made a Submission to the Commission on the Limits of the Continental Shelf through the Secretary General of the United Nations pursuant to Part VI of and Annex II to the U.N. Convention on the Law of the Sea in December 2007; and on April 1, 2008, Mexico made an oral presentation on this matter to said Commission regarding the Western Polygon in the Gulf of Mexico. Mexico’s Submission is the ninth submission to the Commission and is dated December 13, 2007; see CLCS/58 (Recommendation adopted on 31 March 2009). The Submission is available at Oceans and the Law of the Sea, Division for Ocean Affairs and the Law of the Sea at: www.un.org/Depts/los/clcs_new/ commission_ subsommissions.htm. On June 9, 2000, the United States and Mexico entered into a Treaty on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 nautical miles. See Art. 76, paras. 3 through 8, UN LOS Convention of 1982. See UN Resolution 2749 ( XXV ) of December 17, 1979. See the Santo Domingo Declaration, section on the “International Seabed,” paras. 1 and 2, supra note 84 at 893. See Part XI, The Area, of the 1982 UN LOS Convention.

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d. High Seas This section defined the high seas as “[T]he waters situated beyond the outer limits of the patrimonial sea” where the “freedoms of navigation, of overflight and of laying of submarine cables and pipelines” exist. Regarding fishing, the fourth traditional freedom associated with the high seas, this declaration stated that “it should neither be unrestricted nor indiscriminate and be the subject of adequate international regulation, preferably of worldwide scope and general acceptance.”116 Latin America is a large region composed of developing coastal States with living marine resources offshore but lacking in industrial and technological capabilities. For decades, these States witnessed the practices of modern fleets who fished and hunted living resources such as tuna, anchovette and whales, sometimes threatening the survival of these resources.117 The nature of these practices motivated many countries in Latin America to establish “marine zones” beyond the traditionally narrow territorial sea belt where the coastal state projected “certain specialized jurisdictions”118 for the purpose of protecting these resources mainly for economic reasons. Therefore, the inclusion in the Declaration of Santo Domingo of the reference that “Fishing in this zone should be neither unrestricted nor indiscriminate and . . . be the subject of adequate international regulation, preferably of world wide scope and general acceptance,” reiterates similar preferences already found in Latin American pronouncements by the Inter-American Council of Jurists such as the Principles of Mexico of 1956, and four resolutions on the Law of the Sea,119 including the Montevideo120 and the Lima121 Declarations. 116 117

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Santo Domingo Declaration, High seas section, supra note 84 at 893. In the mid and late 19th century, for example, the persistent and abusive practices of whaling ships from the United States, Norway, Japan, Russia, France and the Netherlands led to the brink of extinction of different whale populations, including gray whales, right whales, sperm whales, fin whales, humpback whales, blue whales, etc. offshore the coastal waters of Mexico, Chile, Ecuador and Peru in the Pacific Ocean, and Brazil in the Atlantic. Eventually, the predatory nature of these activities led to the creation of the International Whaling Commission (IWC) in 1946 and the establishment of protected areas or “refuges” in a number of countries. See J.A. Vargas. The California Gray Whale: Its Legal Regime under Mexican Law, 12 Ocean and Coastal Law Journal (2007) at 213–244. Since 1934, Gilbert Gidel referred to the practice of states of establishing marine zones beyond the territorial sea where the coastal state exercised specific jurisdictions (not to be confused with sovereign rights) for security, health or fishing purposes. Resolution XIII: “Principles of Mexico on the Juridical Regime of the Sea,” Inter-American Council of Jurists, Final Act of the Third Meeting (Mexico, 1956); LOS Resolutions: 1971, Doc. CJI-6, at 121; 1972, Doc. CJI-8, at 15; 1972, Doc. CJI-9, at 27; and 1973, Doc. CJI-13, at 85. See Montevideo Declaration, No. 6, Basic Principles of the Law of the Sea, supra note 39 and the corresponding text. See Lima Declaration, Principle No. 3: “The right of the coastal State to take regulatory measures for the aforementioned purposes, applicable in the areas of its maritime sovereignty or

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e. Marine Pollution This declaration emphasized “the duty of every State to refrain from performing acts which may pollute the sea and the seabed, either inside or outside its respective jurisdictions” and the “international responsibility of physical or juridical persons when harming the marine environment.”122 The Lima Declaration123 was the first regional pronouncement at the Latin American level that included a reference to the protection of the marine environment against marine pollution and other harmful activities, raising the issue of civil liability against corporations and individuals at the international level. Eventually, this question generated interest and controversial debates within the Third Committee of UNCLOS III, and provided important material to include in Part XII of the 1982 LOS Convention.124 f. Regional Cooperation The Declaration of Santo Domingo ended with the recognition that the active involvement of the countries in the Caribbean area is needed to reach a united front and adopt a “common policy to resolve the problems peculiar to that region, especially those relating to marine scientific research, marine pollution, conservation, exploration and exploitation of the resources of the sea.”125 g. Patrimonial Sea The Declaration of Santo Domingo of 1972 presented the international community with a concise definition of the Patrimonial Sea recognized as the “precursor” to the exclusive economic zone.126 This novel marine space may be

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jurisdiction, without prejudice to freedom of navigation and flight in transit of ships and aircraft, without distinction as to flag,” supra notes 105–107 and the corresponding text (emphasis added ). The text of the Lima Declaration appears in Appendix Three at the end of this chapter. Id., Marine pollution section. Among the “Common principles of the Law of the Sea,” the Lima Declaration included: “4. The right of the coastal state to prevent contamination of the waters and other dangerous and harmful effects that may result from the use, exploration and exploitation of the area adjacent to its coasts.” See the Lima Declaration, supra note 39 and the accompanying texts (emphasis added ). See Articles 192–237 of the 1982 U.N. LOS Convention covering General Provisions, Global and Regional Cooperation, Technical Assistance, Monitoring and Environmental Assessment, International Rules and National Legislation, Enforcement, Safeguards, Ice-Covered Areas, Responsibility and Liability and Obligations under other conventions. Id., Declaration of Santo Domingo, supra note 84 at 892. See S.N. Nandan. The Exclusive Economic Zone: A Historical Perspective. FAO Essays In Memory of Jean Carroz (1982) at 8. See also, for a more detailed discussion of the important role played by the patrimonial sea in the formulation of the Exclusive economic zone, Francisco Orrego Vicuña (Ed.) The Exclusive Economic Zone: A Latin American Perspective. Westview Press (1984); and Robert B. Krueger and Myron H. Nordquist. The Evolution of the 200-Mile Exclusive Economic Zone: State Practice in the Pacific Basin [including some coastal States in Latin America], 19 Virginia Journal of International Law (1978–79) at 321–400.

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considered among the most important Latin American contributions to the progressive development of the new law of the sea.127 The formulation of this ocean space was a good-faith regional effort to produce a legal compromise that offered the first legal formula intent in conciliating the two extreme legal positions present at that time on the law of the sea between the group of “Territorialist” States and the major maritime powers. The five paragraphs devoted to the “Patrimonial Sea” section of this Declaration read: 1. The coastal State has sovereign rights over the renewable and non-renewable natural resources, which are found in the waters, in the seabed and in the subsoil of an area adjacent to the territorial sea called the patrimonial sea. 2. The coastal state has the duty to promote and the right to regulate the conduct of scientific research within the patrimonial sea, as well as the right to adopt the necessary measures to prevent marine pollution and to ensure its sovereignty over the resources of the area. 3. The breadth of this zone should be the subject of an international agreement, preferably of a world wide scope. The whole of the area of both the territorial sea and the patrimonial sea, taking into account geographic circumstances, should not exceed a maximum of 200 nautical miles. 4. The delimitation of this zone between two or more States should be carried out in accordance with the peaceful procedures stipulated in the Charter of the United Nations. 5. In this zone the ships and aircraft of all States, whether coastal or not, should enjoy the right of freedom of navigation and overflight with no restrictions other than those resulting from the exercise by the coastal State of its rights within the area. Subject only to these limitations, there will also be freedom for the laying of submarine cables and pipelines.128

Paragraph one advances the notion that this new marine space responds to an economic purpose. The legal terminology found in the language of the 1958 Geneva Convention on the Continental Shelf (derived in turn from the Truman Proclamation of 1945), provided the precise legal terminology to define the coastal State’s “sovereign rights” over all kinds of natural resources found in the marine environment, whether renewable or non-renewable.

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For academic works on the “Patrimonial Sea,” see Francisco J. Alejo et al., Aspectos Económicos de la Posición de México sobre el Mar Patrimonial, Mexico y el Régimen del Mar, supra note 10 at 136–165; and Jorge A. Vargas. Significado y Trascendencia para México de un Mar Patrimonial de 200 Millas (Significance and Consequences for Mexico of a 200-mile Patrimonial Sea), Comercio Exterior (Foreign Trade), Vol. 25, No, 10, October 1975 at 1146– 1155; ¿Qué es el Mar Patrimonial?, Técnica Pesquera (Fishing Techniques), June 25, 1975 (México) at 24–27; Mar Patrimonial (Patrimonial Sea). Ciencia y Desarrollo (Science and Development). Conacyt, Nov.–Dec. 1975 (México) at 29–32; in addition to those works cited in supra notes 85 and infra note 128. Reproduced from Declaration of Santo Domingo, ILM (1972) at 892 (emphasis added ).

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The second paragraph declared the coastal State’s “duty to promote and the right to regulate the conduct of scientific research within the patrimonial sea” and “the right to adopt measures to prevent marine pollution;” two issues that were included for the first time in the Lima Declaration in 1970.129 A few years later, once the substantive work of UNCLOS III commenced in 1974, the legal regime applicable to the conduct of marine scientific research activities and to the protection and conservation of the marine environment – both placed under the agenda of the Third Committee – became the center of controversial discussions.130 The language of paragraph two suggests the relative obligation of the coastal State not only to allow but “to promote” the conduct of marine scientific research within the patrimonial sea provided said research is to be subject to the right of the coastal State to regulate it. The message conveyed to the major maritime powers from the participating Caribbean States was that the conduct of research would take place in the new marine space not as a high seas freedom (as had been the case until then) but subject to a “consent regime” imposing certain conditions to be established by the coastal State. Eventually, a special regime on marine scientific research based on the consent of the coastal state was included in the 1982 U.N. Convention on the Law of the Sea.131 Regarding the freedom of navigation and overflight within the “Patrimonial Sea,” Paragraph 5 of the Santo Domingo Declaration recognized the traditional freedoms of navigation, overflight and laying of submarine cables and pipelines should be enjoyed by all States, whether coastal or not, “with no restrictions other than those resulting from the exercise by the coastal State of its rights within the area,” as prescribed by the 1958 Convention on the High Seas,132 save for the freedom to fish. h. Origin of the Name “Patrimonial Sea” The name “Patrimonial Sea” merits a brief explanation. Countries within the civil legal tradition – such as most of those located within the Latin American

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See Resolution 5, para. 3, of the Lima Declaration, supra notes 39 and 56 and the accompanying texts. For a detailed discussion on the legal regime applicable to marine scientific research, see Chapter 5 in this book. See Art. 56, para. (b) (ii); and Arts. 238, 239 and 240, UN LOS Convention of 1982. See Art. 2, Convention on the High Seas. Of the four traditional “freedoms of the high seas,” the only “freedom” excluded from the patrimonial sea is the “Freedom of fishing” since this freedom affects the economic interests of the coastal State. This Convention was adopted by the first United Nations Conference of the Law of the Sea, April 29, 1958, U.N. Doc. A/ CONF. 13/L.53.

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region133 – give special significance to the legal notion of “patrimony,” whose historical origin may be traced back to Roman law times. This notion predicates that the patrimony should be understood as the universality of assets owned by an individual who is under the obligation to utilize and exploit them in a rational manner.134 Accordingly, the patrimony is formed by the most essential assets – such as the home, the land and the domestic animals, for example – that exist for the purpose of providing sustenance and protection to the family.135 Without a patrimony, a family could not exist. It would seem that, in the law of the sea, this notion was applied to the “patrimonial sea” to signify the abundance and diversity of marine resources found in the adjacent sea as a prolongation of the land resources that coastal populations deemed as belonging to them to be used for economic reasons. Thus, both the land and the marine resources constitute a “natural patrimony” given by Nature to the coastal populations. This patrimony had been utilized by their ancestors since time immemorial. A second, more feasible, explanation may be that the name “Patrimonial Sea” – coined in 1970 – was derived from the original concept of the “common heritage of humankind,” first introduced to the United Nations parlance 1967 by Amb. Arvid Pardo in his eloquent and inspiring speech136 before the U.N. General Assembly on November 1, 1967. When this concept was first discussed at the United Nations, the idea of a “common heritage” or “common 133

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See John H. Merryman. The Civil Law Tradition (1985), passim. From Mexico down to Argentina and Chile, all of those countries belong to the civil legal tradition. The exceptions are Belize and other island countries under the control of the United Kingdom, such as Bermuda, Trinidad and Tobago, etc. See “Patrimonio” (from the Latin patrimonium). Universality of assets or resources owned by an individual and inherited from his ancestors. Nuevo Diccionario Jurídico Mexicano (New Mexican Legal Dictionary). Porrúa/UNAM, México, Vol. 4 at 2749–2796. This notion derives from Justinean’s “Institutes” predicating that the Republic requires that no individual is to misuse any of his assets. A similar idea is found in the Summa Theologica (Vol. II) by Thomas Aquinas who asserted that the individual is the administrator of the assets that must be used for the benefit of the community. In the Institutes, Justinian asserts that “some things are by natural law common to all – the air, running water, the sea, and consequently the seashore. All the creatures that the land, the sea, and the sky produce, as soon as they are caught by any one become at once the property of their captor by the law of nations; for natural reason admits the title of the first occupant to that which previously had no owner.” The Institutes of Justinian, Transl. By J.B. Moyle. Oxford (1955) at 37. In Mexico, “patrimony” is simply defined as “the summum of assets and wealth belonging to a person. What belongs to a person by reason of his/her country, parents or ancestors.” See Rafael de Pina et al. Diccionario de Derecho. México (2006) at 400. As a representative of Malta, Pardo’s speech was made before the First Committee of the U.N. General Assembly on November 1, 1967. See UNGA (XXII), Official Records. Doc. A/C.1/ PV. 1515, November 1, 1967. See also his article: Who will Control the Seabed?, 47 Foreign Affairs (1968) at 123–127.

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patrimony,” as it was referred to in Spanish and French, generated heated and controversial discussions at that international forum. This creative concept led to two schools of thought: one advocating the idea of the “common heritage” as the natural resources found on the seabed and ocean floor beyond the limits of national jurisdiction, i.e., on the seabed of the high seas, actually constituted untapped resources belonging to the universality of nations that should be used for the benefit of humankind, in particular developing countries. The second school of thought predicated that the “common heritage” notion was closely associated with a socialist philosophy. This interpretation produced an immediate and vigorous reaction from the United States and other capitalist powers arguing that, under international law, any resources found on the seabed and ocean floor under the high seas did not belong to the universality of nations; instead, they added, those resources – like the fish caught in the high seas – could be legitimately appropriated by the first taker. This international law principle applied to fish (and other living resources) and to mineral resources such as the polymetallic nodules.137 After prolonged debates and some opposition from the maritime powers, the concept of the “common heritage of humankind”138 was approved in UNGA Resolution No. 2749 (XXV) of December 17, 1970.139 However, the maritime powers and certain States within the common law tradition – including some former colonies in Africa and Asia, such as Kenya and others – did not fully adhere to the “common patrimony” notion for terminological, philosophical and legal reasons. As a result of this division, the “patrimonial” concept became associated mainly with the Latin American States, as reflected in the Declaration of Santo Domingo of 1972. Eventually, the name of the “Patrimonial Sea” – only the name but not its legal substance were given a more precise formulation in 1973 by Colombia, 137

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Among the first descriptions of these seabed mineral resources, see P.H. Cardwell. Extractive Metallurgy of Ocean Nodules. Mining Congress Journal, November (1973). See also U.S. Senate. Mineral resources and the Deep Seabed. Hearings before the Subcommittee on Minerals, Materials and Fuels of the Committee on Interior and Insular Affairs, 93rd Congress, first session on S. 1134, May 17, June 14, 15, 18, and 19, 1973. Washington, D.C. (1973); and William Bascom. Mining the Sea in L.M. Alexander. (Ed.). The Law of the Sea: Offshore Boundaries and Zones (Ohio State. Univ. Press, 1967). In Spanish and in French, the “Common heritage of humankind” was translated as “Patrimonio común de la humanidad” and “Patrimoine commun de l’humanité.” In both languages, the use of the word “Patrimony,” an estate inherited from one’s father or ancestor,” may have been the source to coin the term “Patrimonial Sea,” attributed to Dr. Edmundo Vargas Carreño in 1971, merely one year after the UNGA Resolution 2749 was passed. For the Declaration of Principles Governing the Sea-Bed and Ocean Floor and the Subsoil Thereof beyond the Limits of National Jurisdiction, UNGA Res. 2749, 25 U.N. GAOR Supp. (No. 28) at 24; reproduced at John Norton Moore. International and United States Documents on Oceans Law and Policy, Vol. I (1986).

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Mexico and Venezuela140 at Subcommittee II of the Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction. Eventually, the name of this marine space was changed for the name “Exclusive economic zone.”141 The Latin American Group agreed to this new name after negotiating with the African and the Asian Groups, and at the end with the powerful Group of the 77, all of this within UNCLOS III,142 in order to unify the vote of the numerous member States of this group in favor of a 200 nautical mile “Exclusive economic zone.” The change of the name was a quid pro quo the Latin American Group gave to the Group of the 77 – formed by some 130 States – to guarantee the diplomatic and political support (and the eventual favorable vote) of its members in favor of a 200 nautical mile area under the new and official name of the “Exclusive economic zone.” The emergence of this new zone constituted a diplomatic victory by the Latin American Group who supported this novel space of the law of the sea. B. The Inter-American Juridical Committee 1. The Report by Vargas Carreño in 1971 The term “Patrimonial Sea” was utilized for the first time in 1970 by Guillermo Valdés, Secretary of Foreign Affairs of Chile, at the suggestion of Eduardo Palma, political advisor, and Edmundo Vargas Carreño, the Ministry’s Legal Advisor. In a public ceremony commemorating the establishment of the Antarctic Institute of Chile, Valdés – in a response of President Nixon’s proposal to establish an international seabed area – simply declared that “a patrimonial sea out to 200 nautical miles is to be established, where there is freedom of navigation and overflight.”143 140

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Colombia, Mexico and Venezuela: Draft Articles of Treaty. Committee of the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction. UNGA, Doc. A.AC. 138/SC. II/L.21, April 2, 1973; reproduced in 12 ILM 570 (May, 1973). The language of this proposal is reproduced in Appendix Three at the end of this chapter. See also Andrés Aguilar. The Patrimonial Sea or Economic Zone Concept, 11 San Diego Law Review 579 (1973–1974). For an interesting review of the historical evolution of the Exclusive economic zone as emanating from the State practice of certain Latin American states, see Nandan, supra note 126 at 1–21. For the interplay of the informal group negotiations within the 1982 LOS Conference, see Reynaldo Galindo Pohl. The Exclusive Economic Zone in light of the Negotiations at UNCLOS III, in Orrego Vicuña, The EEZ: A Latin American Perspective at 31–58; Manuel Tello. Algunos Problemas que Tendrá que Resolver la Próxima Conferencia sobre Derecho del Mar (Some Problems to be Solved by the LOS Conference) in México y el Régimen del Mar, supra note 10 at 166–186; and J. Castañeda. Negociaciones sobre la ZEE en la Tercera Confemar in Obras Completas, supra note 7 at 159–183. This is narrated by Edmundo Vargas Carreño in his book; supra note 6 at 74.

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In a subsequent Report submitted to the Inter-American Juridical Committee in March of 1971, Vargas Carreño referred to the “Patrimonial Sea” in these terms: Based on the Lima Declaration of 1970, we may attempt to define the patrimonial sea pointing out that it is the maritime space where the coastal State has the exclusive right to explore, conserve and exploit the natural resources in the adjacent seas, and the seabed and subsoil of same sea, as well as the continental shelf and its subsoil out to the limit that said State determines in accordance with reasonable criteria, taking into consideration its geographic, geological, and biological characteristics, and the need to make a rational utilization of its resources. The objective of this maritime space is, pursuant to said Declaration, to promote the maximum development of the economies of the coastal States and, consequently, to elevate the living standards of its peoples. Hereby the proposed name: patrimonial sea. The patrimonial sea comprises both the territorial sea and a zone situated beyond this space and the width of which is to be determined unilaterally – but not arbitrarily – by the coastal State.144

This definition of the patrimonial sea was still legally imprecise and its characteristics fitted more comfortably within the wider concept of a “marine resource zone.” It should be noted that the patrimonial sea was defined as comprising both the relatively narrow territorial sea and the larger oceanic area beyond this traditional maritime belt,145 extending to an outer limit to be “unilaterally” (but “not arbitrarily”) determined by the coastal State, to a maximum of 200 nautical miles in certain cases. The major legal themes commonly found in the early pronouncements of South American countries and in the more recent “common principles of the law of the sea” found in the Lima Declaration of 1970, clearly resonate in this description.

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Inter-American Juridical Committee. Preliminary Report presented by the Rapporteur, Edmundo Vargas, regarding the Territorial Sea and the Patrimonial Sea, dated in April 1971. OAS: Division of Legal Codification and Integration. Department of Legal Affairs, General Secretariat, Organization of American States. Washington, D.C. (Reproduced from Chile y el Derecho del Mar (Chile and the Law of the Sea) by Francisco Orrego Vicuña. Chile (1972) at 149, 137–150. Jorge A. Aja Espiel, another member of the Inter-American Juridical Committee, was critical of the fact that Dr. Carreño’s definition included the territorial sea as part of the “patrimonial sea.” Aja emphasized that these were two different legal spaces. See J. Aja Espil. El Derecho del Mar (The Law of the Sea). Bogotá (1977) at 52–53. See also Resolution of the Inter-American Juridical Committee of February 9, 1973 which, in order to reach a general consensus, eliminated the names of “territorial sea” and “economic zone or patrimonial sea.” This resolution is reproduced in Aja’s book cited supra 6 at 99–106, including the “Necessary explanations” by different members of said Committee at 107–113.

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The legal regime of the continental shelf, and its outer limit, may be the same as that of the patrimonial sea, whether the coastal State had a geomorphological shelf or not. No explanation was given to detail the legal substance of this oceanic space – a key component that later on generated heated controversies to discern whether the patrimonial sea was a part of the territorial sea; the high seas, or a sui generis or even a hybrid space containing legal components of both. A brief and passing reference was made, however, to point out that in the patrimonial sea the traditional freedoms of the high seas were respected save, of course, for the freedom to fish. 2. The Committee’s Resolution of 1973 In its “Resolution on the Law of the Sea” favorably voted by the Inter-American Juridical Committee in early 1973, the use of the term “Patrimonial Sea” was abandoned. Instead, this Committee attempted to give a legal enunciation of the components of a “200 nautical mile zone” contained in fifteen-paragraph Resolution that formulated “the principles and standards representing the common elements of the positions of the American States,” including these: 1. The sovereignty or jurisdiction of the coastal State extends beyond its territory and internal waters to an adjacent area with a maximum distance of 200 nautical miles; 2. This area is divided into two zones: one extending out to 12 nautical miles, and another reaching out to 200 nautical miles, measured from the sea baseline of the first “zone;” 3. Within the first “zone,” up to 12 miles, ships of any State enjoy the right of innocent passage in accordance with international law, as well as the right of free navigation and overflight, subject to coastal State regulations; 4. In the second zone, coastal States have as their objectives the development of their economies and the raising of the standard of living of their peoples; 5. In the second zone, out to 200 miles, coastal States exercise these powers: a. to regulate the exploration and exploitation of living and non-living resources; b. to regulate and adopt measures to eliminate marine pollution; c. to promote scientific research activities, participate in said research, receive the results obtained, and consider facilitating said activities without discrimination or restriction; d. to exchange information of the plans and activities undertaken by the coastal State in the second zone; and e) to enact specific regulations for the exploration and exploitation of marine resources.146 146

OAS/CJI: Work Accomplished by the Inter-American Juridical Committee during its Regular Meeting held from January 14 to February 20, 1974. Rio de Janeiro, OEA/Ser.Q/IV.8, CJI-19.

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This resolution included three of the contributions by Latin America to the discussion on the law of the sea, namely: i) the importance of having a legal regime for the conduct of marine scientific research activities; ii) the necessity of protecting the marine environment; and iii) to authorize the “non-coastal States” to exploit the living resources in the adjacent 188 nautical-mile zone.147 This resolution was based on the regional practice by most States in Latin America at that time, without giving preference to any legal terminology or to defining the essential legal components of the different “zones” or “powers” exercised by the coastal States over their offshore marine spaces, in an attempt to reconcile the divergent positions among these regional States. For the first time, the Committee made a list of the so-called “powers” exercised by the coastal States over marine resources.148 The resolution recommended that “American States take them into consideration” and “present them to regional and worldwide conferences,” clearly having in mind the work of UNCLOS III.149

3. The Transformation of the Patrimonial Sea into the Exclusive Economic Zone When the coastal States in Latin America became engaged in their quest for the formulation of a more modern new law of the sea, they were distinctly aware that their maritime claims had a special appeal to developing coastal States situated in other regions of this planet, in particular the States in Africa and Asia. As a region, Latin America realized that their paramount philosophy, advocating that the marine resources offshore their coasts should be used for economic reasons to elevate the standard of living of their peoples and thus promote their social and economic conditions, was a philosophy bound to have followers in those economically depressed regions. This may explain why the Montevideo, the Lima and the Santo Domingo declarations in the early 1970’s – and possibly the Declaration of Santiago of 1952 – were drafted in a language designed to appeal legally to those regions, geographically distant but politically and economically closer to Latin America, demanding a more just international economic order.

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Washington, D.C., June 1974. See numerals 4 and 7 c) and d); 7 B); and 9, respectively, of the 1973 Resolution, Ibid. at 78–79. See numeral 7, Id. at 78. Ibid. at 77. The Resolution was signed by Adolfo Molina Orantes, José Joaquín Caicedo Castilla, William S. Barnes, Reynaldo Galindo Pohl, Antonio Gómez Robledo, Vicente Rao, Américo Pablo Ricaldoni, Alberto Ruiz Eldredge and Edmundo Vargas Carreño.

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Starting with the Montevideo meeting in 1970, a special effort was made to establish closer relations with States in Africa and Asia,150 and later on to send special Latin American observers to law of the sea meetings in those regions.151 A general review of the State practice regarding maritime claims in Africa and Asia in the 1970’s indicated that the expansionist 200 nautical mile “maritime claims” advanced by the coastal States in Latin America had not fallen on deaf ears. By 1980, twenty-eight coastal States from Africa and Asia had established different kinds of 200 nautical mile “maritime zones” under different names.152 A. The Colombo Meeting of January 18–27, 1971 The Asian-African Legal Consultative Committee held its 12th session at Colombo, Ceylon, January 18–27, 1971 to discuss a series of issues relating to the law of the sea.153 With respect to the territorial sea, the fishing rights of coastal States and “zones of economic jurisdiction beyond the territorial sea,” the Sub-Committee on the Law of the Sea reported that a “functional approach” would be taken regarding the question of establishing jurisdictional limits. It recognized the 150

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See Nandan, supra note 126 at 21, asserting that the Latin American States “were not working in isolation in the early ’70s on the development of new principles governing the law of the sea,” and pointing out the closer contacts with the African-Asian Legal Consultative Committee prior and during its 1971 meeting in Colombo. Peru attended as Observer the discussions of this Committee in Colombo, Ceylon, in 1971 and in Lagos, Nigeria, in 1972. For the corresponding speeches pronounced at these meetings, see Exposiciones Oficiales Peruanas, supra note 63 at 130. The Colombo meeting of the XI African-Asian Legal Consultative Committee in Colombo, Ceylon, on January 18–27, 1971, was attended by observers from Argentina, Brazil, Ecuador and Peru. These heterogenous “200 n.m. maritime claims” were made before 1980: a) An “Exclusive economic zone:” 1) Bangladesh (1974); 2) Cambodia (1978); 3) Cape Verde (1977); 4) Cote d’Ivoire (1977); 5) Guinea Bissau (1978); 6) India (1976); 7) Indonesia (1980); 8) Indonesia (1980); 9) Kenya (1979); 10) Korea, North (1977); 11) Mauritania (1978); 12) Mauritius (1977); 13) Mozambique (1977); 14) Myanmar (1977); 15) Nigeria 1978); 16) Pakistan (1976); 17) Philippines (1978); 18) Sri Lanka (1976); 19) Togo (1978); and 20) Vietnam (1977). b) “Fishing Zone:” 1) Angola (1975); 2) Gambia (1977); 3) Iran (1973); and 4) Japan (1977). c) “Territorial Sea:” 1) Benin (1976); 2) Congo (1977); 3) Liberia (1976); 4) Sierra Leone (1971); and 5) Somalia (1972). Including all categories of “Maritime Zones” until 1982 for all countries, the number increases to a total of 121 countries. Data taken from E.D. Brown. The International Law of the Sea, Table 12.1, Vol. I (1994) at 246–247. Report of the Committee on the Law of the Sea. Asian-African Legal Consultative Committee, XII Session, Colombo, Ceylon, January 18–27, 1971. See UNGA Doc. A/AC.138/34, January 27, 1971. The law of the sea issues discussed included: 1) The extent of the Territorial Sea; 2) Fishing Rights and Zones of Economic Jurisdiction; 3) Exploration and Exploitation of the Seabed; 4) International Straits; 5) The Archipelago Concept; and 6) Other Questions (such as pollution).

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“right of coastal States to claim a 12 nautical mile territorial sea” and the “exclusive rights to economic exploitation of the resources in the waters adjacent to the territorial sea in a zone whose maximum breadth should be subject to negotiation.”154 B. The Yaoundé Seminar of June 20–30, 1972 In consonance with the regional meetings held in Latin America in the early 1970’s, several regional meetings in Africa and Asia played an important role in transforming the Patrimonial Sea concept into an Exclusive economic zone. In June of 1972 the General Report of the African States Regional Seminar on the Law of the Sea held in Yaoundé,155 Cameroon, attended by sixteen States, produced important conclusions that maintain a close legal symmetry with similar pronouncements in Latin America, in particular the Santo Domingo Declaration, which was held just a few days before in the Dominican Republic. With regard to an “Economic Zone,” the Yaoundé report recommended to the participating countries that: (3) The African states have equally the right to establish beyond the Territorial Sea an Economic Zone over which they will have an exclusive jurisdiction for the purpose of control, regulation and national exploitation of the living resources of the sea and their reservation for the primary benefit of their peoples and their respective economies, and for the purpose of prevention and control of pollution. The establishment of such a zone shall be without prejudice to the following freedoms: Freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines.156

The outer limit of this zone is to be fixed in nautical miles, “in accordance with regional considerations taking duly into account the resources of the region and the rights and interests the land-locked and near land-locked States, without prejudice to limits already adopted by some States within the region.” In addition, this zone is to include “at least the continental shelf ” and comprises “both living and non-living resources such as oil, natural gas and other mineral

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Ibid. at 7. Most of the discussions on the law of the sea centered around the international seabed area, its legal nature, limits, type and powers of the seabed authority, including the definition and outer boundaries of the continental shelf. See Conclusions, General Report of the African States Regional Seminar on the Law of the Sea, held at Yaoundé, Cameroon, June 20–30, 1972. United Nations Legislative Series, ST/ LEG/SER.B/16. Ibid. The Yaoundé General Report was more precise in enumerating the traditional freedoms of the high seas than the LOS declarations by Latin American countries such as the Montevideo, Lima and Santo Domingo declarations.

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resources.” Any natural resources outside this zone “should be managed by the International Authority.”157 The Yaoundé seminar – contrary to the numerous regional conferences and meetings convoked to reconcile law of the sea positions of the states in Latin America – has been referred to as the “first comprehensive effort by the African States to put together a regional position.”158 C. Kenya Draft on the Exclusive Economic Zone of August 7, 1972 In 1972, Kenya presented a proposal to the Committee on the Peaceful Uses of the Seabed and Ocean Floor beyond the Limits of National Jurisdiction, titled: Draft Articles on Exclusive Economic Zone Concept.159 Since the Colombo meeting in 1971, Kenya had become an active participant promoting the concept of an “Exclusive economic zone” extending out to 200 nautical miles favoring developing countries to use all natural resources in that marine zone to promote their economic development. At the same time, given the economic purpose of this zone – made explicit in its name – the Kenyan draft made clear that no interference with the traditional freedoms of navigation and overflight was to take place within this zone, as a concession to the interests of the major maritime powers. The description of this “economic zone” in the Kenyan proposal, reproduced the legal content and each of the specific characteristics attributed by the Latin American States to the Patrimonial Sea, except for the name of this marine space. The first three Articles of this proposal read: Article I. All States have the right to determine the limits of their jurisdiction over the seas adjacent to their coasts beyond a territorial sea of 12 miles in accordance with the criteria which take into account their own geographical, geological, biological, ecological, economic and national security factors. Article II. All States have the right to establish an Economic Zone beyond the territorial sea for the primary benefit of their peoples and their respective economies in which they shall exercise sovereign rights over natural resources for the purpose of exploration and exploitation. Within the zone they shall have exclusive jurisdiction for the purpose of control, regulation and exploitation of both living and non-living resources of the Zone and their preservation, and for the purpose of prevention and control of pollution.

157 158 159

Id. See Nandan, supra note 126 at 21. Draft Articles on Exclusive Economic Zone, UNGA Doc. A/AC.138/SC.II/L.10 dated August 7, 1972. Also at GAOR, Seabed Committee, Twenty-Seventh Session, Supp. No. 21 (A/8721) at 180–182.

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The coastal State shall exercise jurisdiction over its Economic Zone and third States or their nationals shall bear responsibility for damage resulting from their activities within the Zone. Article III. The establishment of such a Zone shall be without prejudice to the exercise of freedom of navigation, freedom of overflight and the freedom to lay submarine cables and pipelines as recognized in international law.160

Basically, the Kenyan proposal – as expressed by numerous law of the specialists – was strongly patterned after the Patrimonial Sea concept.161 D. Declaration of the Organization of African Unity (OAU) on the Issues of the Law of the Sea, Addis Ababa, Ethiopia, May 17–24, 1973 The Council of Ministers of the OAU held their 21st session in the capital of Ethiopia addressing a number of law of the sea issues,162 including a specific section on the “exclusive economic zone.” Regarding this zone, the final resolutions declared that its outer limit “should not exceed 200 nautical miles;” that coastal States exercised “permanent sovereignty over all the living and mineral resources” in that space, “without undue interference with the other legitimate uses of the sea: namely, freedom of navigation, overflight and laying of cables and pipelines;” that “scientific research and the control of marine pollution [in that zone] shall be subject to the jurisdiction of the coastal States;” allowing “landlocked and other disadvantaged countries . . . a share in the exploitation of living resources of neighboring economic zones on equal basis . . . of African solidarity . . . under regional and bilateral agreements to be worked out.”163 The official opening of the first substantive session of the Third United Nations Conference of the Law of the Sea at Parque Central in Caracas, Venezuela, in the summer of 1974, became the forum of the numerous law of the sea proposals submitted by the States participating at that conference and, 160

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Kenya’s Draft Articles, Ibid. at 1. The use of Italics denote the close terminology and legal parallelism between the Kenyan “Exclusive economic zone” and the “Patrimonial Sea.” Portions in the language of the Kenyan draft were taken almost verbatim from the language used by the Santo Domingo Declaration held two months earlier ( June 9, 1972) in the Dominican Republic. See Nandan, supra note 126 at 21. See also Orrego Vicuña, supra note 144, passim. The OAU Resolutions included: a) Territorial Sea and Straits; b) Regime of Islands; c) Exclusive economic zone concept including Fishery zone; d) Regional “rrangements; e) Fishing Activities in the High Seas; f ) Training and Transfer of Technology; g) Scientific research; h) Preservation of the Marine Environment; i) International Regime and International Machinery for the Seabed and Ocean Floor beyond the Limits of National Jurisdiction. See OAU: Council of Ministers, XXI Ordinary Sess., May 17–24, 1973. Doc. CM/Res. 2098 (XXI). Ibid.

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perhaps more importantly, the diplomatic arena where said proposals were to be negotiated both at informal groups and at the official conference sessions. In the process of gradual transformation of the Patrimonial Sea into the Exclusive economic zone the Latin American,164 African and Asian Groups, jointly with the Group of 77, and the Informal Negotiating Groups led by Evensen and by Castañeda-Vindenes165 played an important role. At the end of the negotiations, when all of the regional groups formed by countries from Latin America, Africa and Asia became united under the legal concept of the Exclusive economic zone, as strongly supported by the Group of the 77, the long quest of Latin America to have an extended adjacent maritime zone for economic reasons had finally come to an end.

4. Conclusions The continental shelf, the exclusive economic zone of 200 nautical miles and the notion of the seabed and ocean floor as the “Common heritage of humankind” constitute, inter alia, three of the most modern legal notions of the modern international law of the sea. Diplomatically, the EEZ resulted from a compromise between the traditional positions of the major maritime powers in favor of the freedom of navigation and a narrow territorial sea, on one side, and the claims advanced by developing coastal States in support of a vast marine area where said States control the exploration, exploitation and preservation of all natural resources allowing, at the same time, for the freedom of navigation. The EEZ is a new area whose legal characteristics conform a sui generis marine space that blends the traditional legal notions of the territorial sea with those of the high seas within the 200 n.m. area. This interpretation is not shared by the United States (and other technologically advanced maritime States) who consider the EEZ under the regime of the high seas. The Santiago Declaration of 1952 was a claim to establish a 200 n.m. zone where the three signatories exercised authority and control over all natural resources, both living and mineral, located within said zone. Although clearly 164

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Regarding the negotiations on the legal characteristics of the Exclusive Economic Zone, see Orrego Vicuña, supra note 144 especially the chapters authored by Galindo Pohl, Marotta Rangel and Arias Schreiber, at 31, 61 and 123, respectively. See also Nandan, supra note 126, for a historical perspective of the EEZ. J. Castañeda. Negociaciones sobre la Zone económica exclusiva en la Tercera CONFEMAR (EEZ Negotiations at UNCLOS III), Obras Completas: Derecho del Mar, supra note 7 at 159–183. With reference to the Castañeda-Vindenes Group, see also his article: Mexico y el Nuevo Derecho del Mar (Mexico and the New Law of the Sea). Política Exterior de México (Mexico’s Foreign Policy). SRE, México (1985) at 63–89.

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contrary to international law at that time, this zone may be characterized today as a “resource and conservation zone” that may be a legal antecedent of today’s EEZ. Said Santiago Declaration induced coastal states, first within Latin America and later elsewhere in the world, to advance de lege ferenda maritime claims over a vast and adjacent marine space tailored to respond to certain factors, i.e., geographical, geological, biological, etc. These exaggerated claims – contrary to international law (lex lata) at that time – were vigorously repudiated by major maritime States. The Montevideo Conference on the Law of the Sea of 1970 was a legal and a diplomatic failure. Highly influenced by the “natural law” philosophy originally advanced by Chile, Ecuador and Peru in 1952, it failed in unifying and harmonizing the divergent legal positions of the eight Latin American signatories attending that regional meeting. In contrast, the Lima Conference on the Law of the Sea of 1970 produced a well-designed plan, practical and clear, to coordinate the diplomatic positions on law of the sea matters advanced by the 26 participating States. This diplomatic coordination became evident at the forthcoming session of the U.N. General Assembly and, in particular, at the preparatory work of the Seabed and Ocean Floor Committee, as an early forum for UNCLOS III. The protection and preservation of the marine environment and the right of the coastal state to authorize and regulate the conduct of marine scientific research were the two most original proposals on the law of the sea formulated at the Lima Conference both within and outside the Latin American level. The Santo Domingo declaration of 1972 was the forum that for the first time articulated the concept of the “Patrimonial Sea.” This novel legal concept represents a clear “precursor” of today’s EEZ. The patrimonial sea merged the two polarized trends that grouped the majority of States that participated in the legal construction of the new law of the sea. Eventually, the patrimonial sea became the cornerstone that led to the formulation of the EEZ at UNCLOS III. The legal structure of the patrimonial sea became incorporated in the 1982 U.N. LOS Convention under the current name of exclusive economic zone.

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Appendix Three Document 3.1 DECLARATION ON THE MARITIME ZONE Adopted August 18, 1952 1. Governments have the obligation to ensure for their peoples the necessary conditions of subsistence, and to provide them with the resources for their economic development. 2. Consequently, they are responsible for the conservation and protection of their natural resources and for the regulation of the development of these resources in order to secure the best possible advantages for their respective countries. 3. Thus, it is also their duty to prevent any exploitation of these resources, beyond the scope of their jurisdiction, which endangers the existence, integrity and conservation of these resources to the detriment of the peoples who, because of their geographical situation, possess irreplaceable means of subsistence and vital economic resources in their seas. In view of the foregoing considerations, the Governments of Chile, Ecuador and Peru, determined to conserve and safeguard for their respective peoples the natural resources of the maritime zones adjacent to their coasts, formulate the following Declaration: I) The geological and biological factors which determine the existence, conservation and development of marine fauna and flora in the waters along the coasts of the countries making the Declaration are such that the former extension of the territorial sea and the contiguous zone are inadequate for the purposes of the conservation, development and exploitation of these resources, to which the coastal countries are entitled. II) In light of these circumstances, the Government of Chile, Ecuador and Peru proclaim as a norm of their international maritime policy that they each possess exclusive sovereignty and jurisdiction over the sea along the coasts of their respective countries to a minimum distance of 200 nautical miles from these coasts. III) The exclusive jurisdiction and sovereignty over this maritime zone shall also encompass exclusive sovereignty and jurisdiction over the seabed and the subsoil thereof. IV) In the case of island, territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the Declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the States concerned reaches the sea. V) This Declaration shall be without prejudice to the necessary limitations to the exercise of sovereignty and jurisdiction established under international law to allow innocent and inoffensive passage through the area indicated for ships of all nations.

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VI) For the application of the principles contained in this Declaration, the Governments of Chile, Ecuador and Peru hereby announce their intention to sign agreements or conventions which shall establish general norms to regulate and protect hunting and fishing within the maritime zone belonging to them, and to regulate and coordinate the exploitation and development of all other kinds of products or natural resources existing in these waters which are of common interest. Santiago, 18 August 1952. Signed Julio Ruiz Bourgeois Delegate of Chile Signed Jorge Fernandez Salazar Delegate of Ecuador Signed Dr. Alberto Ulloa Delegate of Peru Signed Fernando Guarello Secretary-General Reproduced from: Declaration on the Maritime Zone, 1006 UNTS I-14758 at 326, U.N. Doc. ST/LEG./ SER.B/6 (Aug. 18, 1952). Translation (Original in Spanish).

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Chapter Three: Appendix Three Document 3.2 MONTEVIDEO DECLARATION ON THE LAW OF SEA Adopted May 8, 1970

The States represented at the Montevideo Meeting on the Law of the Sea, RECOGNIZING that there exists a geographic, economic and social link between the sea, the land, and its inhabitants, Man, which confers on the coastal peoples legitimate priority in the utilization of the natural resources provided by their marine environment, RECOGNIZING likewise that any norms governing the limits of national sovereignty and jurisdiction over the sea, its soil and its subsoil, and the conditions for the exploitation of their resources, must take account of the geographical realities of the coastal States and the special needs and economic and social responsibilities of developing States, CONSIDERING that scientific and technological advances in the exploitation of the natural wealth of the sea have brought in their train the danger of plundering its living resources through injudicious or abusive harvesting practices or through the disturbance of ecological conditions, a fact which supports the right of coastal States to take the necessary measures to protect those resources within the areas of jurisdiction more extensive than has traditionally been the case and to regulate within such areas any fishing or aquatic hunting, carried out by vessels operating under a national or a foreign flag, subject to national legislation and to agreements concluded with other States, That a number of declarations, resolutions and treaties, many of them inter-American, and multilateral declarations and agreements concluded between Latin American States, embody legal principles which justify the right of States to extend their sovereignty and jurisdiction to the extent necessary to conserve, develop and exploit the natural resources of the maritime area adjacent to their coasts, its soil and its subsoil, That, in accordance with those legal principles the signatory States have, by reason of conditions peculiar to them, extended their sovereignty or exclusive rights of jurisdiction over the maritime area adjacent to their coasts, its soil and its subsoil to a distance of 200 nautical miles from the baseline of the territorial sea, That the implementation of measures to conserve the resources of the sea, its soil and its subsoil by coastal States in the areas of maritime jurisdiction adjacent to their coasts ultimately benefits mankind, which possesses in the oceans a major source of means for its subsistence and development, That the sovereign right of States to their natural resources has been recognized and reaffirmed by many resolutions of the General Assembly and other United Nations bodies, That it is advisable to embody in a joint declaration the principles emanating from the recent movement towards the progressive development of international law, which is receiving ever-increasing support from the international community,

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DECLARE the following to be Basic Principles of the Law of the Sea: 1. The right of coastal States to avail themselves of the natural resources of the sea adjacent to their coasts and of the soil and subsoil thereof in order to promote the maximum development of their economies and to raise the levels of living of their peoples; 2. The right to establish the limits of their maritime sovereignty and jurisdiction in accordance with their geographical and geological characteristics and with the factors governing the existence of marine resources and the need for their rational utilization; 3. The right to explore, to conserve the living resources of the sea adjacent to their territories, and to establish regulations for fishing and aquatic hunting; 4. The right to explore, conserve and exploit the natural resources of their continental shelves to where the depth of the superjacent waters admits of the exploitation of such resources; 5. The right to explore, conserve and exploit the natural resources of the soil and subsoil of the seabed and ocean floor up to the limit within which the State exercises its jurisdiction over the sea; 6. The right to adopt, for the aforementioned purposes, regulatory measures applicable in areas under their maritime sovereignty and jurisdiction, without prejudice to freedom of navigation by ships and overflying by aircraft of any flag. Furthermore, the signatory States, encouraged by the results of this Meeting, express their intention to coordinate their future action with a view to defending effectively the principles embodied in this Declaration. This Declaration shall be known as the Montevideo Declaration on the Law of the Sea. Reproduced from: Montevideo Declaration on the Law of the Sea, U.N. Doc. A/AC.138/34 (May 8, 1970). In S. Houston Lay, New Directions in the Law of the Sea: Documents, Vol. 1, 235–236 (Oceana 1973).

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Chapter Three: Appendix Three Document 3.3 DECLARATION OF THE LATIN AMERICAN STATES ON THE LAW OF THE SEA Adopted August 8, 1970

The Latin American Meeting on Aspects of the Law of the Sea, CONSIDERING That there is a geographical, economic and social link between the sea, the land, and man who inhabits it, which confers on coastal populations a legitimate priority right to utilize the natural resources of their maritime environment, That in consequence of that priority relationship, the right has been recognized of coastal States to establish the extent of their maritime sovereignty or jurisdiction in accordance with reasonable criteria, having regard to their geographical, geological and biological situation and their socio-economic needs and responsibilities; That the dangers and damage resulting from indiscriminate and abusive practices in the extraction of marine resources, among other reasons, have led an important group of coastal States to extend the limits of their sovereignty or jurisdiction over the sea, with due respect for freedom of navigation and flight in transit for ships and aircraft, without distinction as to flag; That certain forms of utilization of the marine environment have likewise been giving rise to grave dangers of contamination of the waters and disturbance of the ecological balance, to combat which it is necessary that the coastal States should take steps to protect the health and interests of their populations; That the development of scientific research in the marine environment requires the widest possible cooperation among States, so that all may contribute and share in its benefits, without prejudice to the authorization, supervision and participation of the coastal State when such research is carried out within the limits of its sovereignty or jurisdiction; That in declarations, resolutions and treaties, especially inter-American instruments, and also in unilateral declarations and in agreements signed between Latin American States legal principles are embodied which justify the aforementioned rights; That the sovereign right of States over their natural resources has been recognized and reaffirmed in numerous resolutions of the General Assembly and other United Nations bodies; That in the exercise of these rights that respective rights of other neighboring coastal States on the same sea must be mutually respected; and That it is desirable to assemble and reaffirm the foregoing concepts in a joint declaration which will take into account the plurality of existing legal regimes on maritime sovereignty or jurisdiction in Latin American countries. Declares as common principles of the Law of the Sea: 1. The inherent right of the coastal State to explore, conserve and exploit the natural resources of the sea adjacent to its coasts and the soil and subsoil thereof, likewise of the Continental Shelf and its subsoil, in order to promote the maximum development of its economy and to raise the level of living of its people;

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2. The right of the coastal State to establish the limits of its maritime sovereignty or jurisdiction in accordance with reasonable criteria, having regard to its geographical, geological and biological characteristics, and the need to make rational use of its resources; 3. The right of the coastal State to take regulatory measures for the aforementioned purposes, applicable in the areas of its maritime sovereignty or jurisdiction. Without prejudice to freedom of navigation and flight in transit of ships and aircraft, without distinction as to flag; 4. The right of the coastal State to prevent contamination of the waters and other dangerous and harmful effects that may result from the use, exploration or exploitation of the area adjacent to its coasts; 5. The right of the coastal State to authorize, supervise and participate in all scientific research activities which may be carried out in the maritime zones subject to its sovereignty or jurisdiction, and to be informed of the findings and the results of such research. This Declaration shall be known as the Declaration of the Latin American States on the Law of the Sea. Reproduced from: Declaration of the Latin American States on the Law of the Sea, U.N. Doc. A/AC.138/24 (Aug. 8, 1970). In S. Houston Lay, New Directions in the Law of the Sea: Documents, Vol. 1, 237–239 (Oceana 1973).

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Chapter Three: Appendix Three Document 3.4

DECLARATION OF SANTO DOMINGO Approved by the Meeting of Ministers of the Specialized Conference of the Caribbean Countries on Problems of the Sea, Held on June 7, 1972 THE SPECIALIZED CONFERENCE OF THE CARIBBEAN COUNTRIES ON PROBLEMS OF THE SEA RECALLING That the international American Conference held in Bogota in 1948, and in Caracas in 1954, recognized that the peoples of the Americas depend on the natural resources as a means of subsistence, and proclaimed the right to protect, conserve and develop those resources, as well as the right to ensure their use and utilization. That the “Principles of Mexico on the Legal Regime of the Sea” which were adopted in 1956 and which were recognized “as the expression of the juridical conscience of the Continent and as applicable, by the American States,” established the basis for the evolution of the Law of the Sea which culminated that year, with the enunciation by the Specialized Conference in the Capital of the Dominican Republic of concepts which deserved endorsement by the United Nations Conference on the Law of the Sea, Geneva, 1958. CONSIDERING That the General Assembly of the United Nations, in its resolution 2750 (XXV) decided to convoke in 1973 a Conference on the Law of the Sea, and recognized “the need for early and progressive development of the law of the sea”; That it is desirable to define, through universal norms, the nature and scope of the rights of States, as well as their obligations and responsibilities relating to the various oceanic zones, without prejudice to regional or subregional agreements, based on the said norms; That the Caribbean countries, on account of their peculiar conditions, require special criteria for the application of the Law of the Sea, which at the same time the coordination of Latin America is necessary for the purpose of joint action in the future; That the economic and social development of all the peoples and the assurance of equal opportunities for all human beings are essential conditions for peace; That the renewable and non-renewable resources of the sea contribute to improve the standard of living of the developing countries and to stimulate and accelerate their progress; That such resources are not inexhaustible since even the living species may be depleted or extinguished as a consequence of irrational exploitation or pollution; That the law of the sea should harmonize the needs and interests of States and those of the International Community; That as Santo Domingo is the point of departure of the American civilization, as well as the site of the First Conference on the Law of the Sea in Latin America in 1956, it is historically significant that the new principles to advance the progressive development of the Law of the Sea be proclaimed in this city.

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Formulate the following Declaration of Principles: TERRITORIAL SEA 1. The sovereignty of a State extends, beyond its land territory and its internal waters, to an area of the sea adjacent to its coast, designated as the territorial sea, including the superjacent air space as well as the subjacent seabed and subsoil. 2. The breadth of the territorial sea and the manner of its delimitation should be the subject of an international agreement, preferably of a worldwide scope. In the meantime, each State has the right to establish the breadth of its territorial sea up to a limit of 12 nautical miles to be measured from the applicable baseline. 3. Ships of all States, whether coastal or not, should enjoy the right of innocent passage through the territorial sea, in accordance with International Law. PATRIMONIAL SEA 1. The coastal State has sovereign rights over the renewable and non-renewable natural resources, which are found in the waters, in the seabed and in the subsoil of an area adjacent to the territorial sea called the patrimonial sea. 2. The coastal State has the duty to promote and the right to regulate the conduct of scientific research within the patrimonial sea, as well as the right to adopt the necessary measures to prevent marine pollution and to ensure its sovereignty over the resources of the new area. 3. The breadth of this zone should be the subject of an international agreement, preferably of a worldwide scope. The whole of the area of both the territorial sea and the patrimonial sea, taking into account geographic circumstances, should not exceed a maximum of 200 nautical miles. 4. The delimitation of this zone between two or more States, should be carried out in accordance with the peaceful procedures stipulated in the Charter of the United Nations. 5. In this zone ships and aircraft of all States, whether coastal or not should enjoy the right of freedom of navigation and overflight with no restrictions other than those resulting from the exercise by the coastal State of its right within the area. Subject only to these limitations, there will also be freedom for the laying of submarine cables and pipelines. CONTINENTAL SHELF 1. The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. 2. The continental shelf includes the seabed and subsoil of the submarine areas adjacent to the coast, but outside the area of the territorial sea, to a depth of 200 meters or, beyond that limit, to where the depth of the superjacent waters admits the exploitation of the natural resources of the said areas. 3. In addition, the States participating in this Conference consider that the Latin American Delegations in the Committee on the Seabed and Ocean Floor of the United Nations should promote a study concerning the advisability and timing for the establishment of precise outer limits of the continental shelf taking into account the outer limits of the continental rise. 4. In that part of the continental shelf covered by the patrimonial sea the legal regime provided for this area shall apply. With respect to the part beyond the patrimonial sea, the regime established for the continental shelf by International Law shall apply.

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INTERNATIONAL SEABED 1. The seabed and its resources, beyond the patrimonial sea and beyond the continental shelf not covered by the former, are the common heritage of mankind, in accordance with the Declaration adopted by the General Assembly of the United Nations in resolution 2749 (XXV) of December 1970. 2. This area shall be subject to the regime to be established by international agreement, which should create an international authority empowered to undertake all activities in the area, particularly the exploration, exploitation, protection of the marine environment and scientific research, either on its own, or through third parties, in the manner and under the conditions that may be established by common agreement. HIGH SEAS That waters situated beyond the outer limits of the patrimonial sea constitute an international area designated as high seas, in which there exists freedom of navigation, of overflight and of laying submarine cables and pipelines. Fishing in this zone should be neither unrestricted nor indiscriminate and should be the subject of adequate international regulation, preferably of worldwide scope and general acceptance. MARINE POLLUTION 1. Is the duty of every State to refrain from performing acts which may pollute the sea and its seabed, either inside or outside its respective jurisdiction? 2. The international responsibility of physical or juridical persons damaging the marine environment is recognized. With regard to this matter the drawing up of an international agreement, preferably of a worldwide scope, is desirable. REGIONAL COOPERATION 1. Recognizing the need for the countries in the area to unit their efforts and adopt a common policy vis-à-vis the problems peculiar to the Caribbean Sea relating mainly to scientific research, pollution of the marine environment, conservation, exploration, safeguarding and exploitation of the resources or the sea; 2. Decides to hold periodic meetings, if possible once a year, of senior governmental officials, for the purpose of coordinating and harmonizing national efforts and policies in all aspects of oceanic space with a view to ensuring maximum utilization of resources by all the peoples of the region. The first meeting may be convoked by any of the States participating in this Conference. Finally, the feelings of peace and respect for international law which have always inspired the Latin American countries are hereby reaffirmed. It is within this spirit of harmony and solidarity, and for the strengthening of the norms of the inter-American system, that the principles of this document shall be realized. The present Declaration shall be called: “Declaration of Santo Domingo.” Done in Santo Domingo de Guzman, Dominican Republic, this ninth day of June one thousand nine hundred and seventy-two (1972), in a single copy in the English, French and Spanish languages, each text being equally authentic. Reproduced from: Declaration of Santo Domingo. U.N. GAOR, 27th Sess., Supp. No. 21 at 70, U.N. Doc. A/AC.138/80 ( June 9, 1972). (Circulated as a Committee document pursuant to the decision of the Committee at its 78th meeting, on July 10, 1972)

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Document 3.5 COLOMBIA, MEXICO AND VENEZUELA: DRAFT ARTICLES OF TREATY TERRITORIAL SEA April 2, 1973 Section I – General Provisions ARTICLE 1 1. The coastal State has sovereignty over an area of the sea immediately contiguous to its territory and inland waters designated as the territorial sea. 2. The sovereignty of a coastal State extends to the seabed and subsoil and the superjacent air space of the territorial sea. 3. The sovereignty of the coastal State is exercised in accordance with the provisions of these articles and other rules of international law. ARTICLE 2 The breadth of the territorial sea shall not exceed 12 nautical miles to be measured from the applicable baselines. ARTICLE 3 Without prejudice to the provisions of these articles, ships of all States, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea. Patrimonial Sea ARTICLE 4 The coastal State has sovereign rights over the renewable and non-renewable natural resources which are found in the waters, in the seabed and in the subsoil of an area adjacent to the territorial sea called the patrimonial sea. ARTICLE 5 The coastal State has the right to adopt the necessary measures to ensure its sovereignty over the resources and prevent marine pollution of its patrimonial sea. ARTICLE 6 The coastal State has the duty to promote and the right to regulate the conduct of scientific research within the patrimonial sea. ARTICLE 7 The coastal State shall authorize and regulate the emplacement and use of artificial islands and any kind of facilities on the surface of the sea, in the water column and on the seabed and subsoil of the patrimonial sea. ARTICLE 8 The outer limit of the patrimonial sea shall not exceed nautical miles from the applicable baselines for measuring the territorial sea. ARTICLE 9 In the patrimonial sea, ships and aircraft of all States shall enjoy the right of freedom of navigation and overflight.

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ARTICLE 10 Subject only to the limitations established in the preceding articles, the coastal State shall respect the freedom to lay submarine cables and pipelines. ARTICLE 11 The coastal State shall exercise jurisdiction and supervision of the exploration and exploitation of the renewable and non-renewable resources in the patrimonial sea and over allied activities. In exercising such powers, the coastal State shall take appropriate measures to ensure that such activities are carried out with due consideration for legitimate uses of the sea by other States. ARTICLE 12 In exercising the freedom and rights this Convention confers on the State, the latter shall not interfere in the activities referred to in the preceding articles. Continental Shelf ARTICLE 13 The term “continental shelf ” means: (a) The seabed and subsoil of the submarine areas adjacent to the coast, but the area of the territorial sea, to the outer limits of the continental shelf bordering on the ocean basin or abyssal floor; (b) The sea-bed and subsoil of analogous submarine regions adjacent to the coasts of islands. ARTICLE 14 The coastal State exercises sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. ARTICLE 15 In that part of the continental shelf covered by the patrimonial sea, the legal regime provided for the latter shall apply. With respect to the part beyond the patrimonial sea, the regime established by international law for the continental shelf shall apply. High Seas ARTICLE 16 Freedom of navigation, overflight and the laying of submarine cables and pipelines shall exist in the high seas. Fishing in this zone shall be neither unrestricted nor indiscriminate. ARTICLE 17 The coastal State has a special interest in maintaining the productivity of the living resources of the sea in an area adjacent to the patrimonial sea.

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Regional Agreements ARTICLE 18 No provision of this Treaty shall be interpreted as preventing or restricting the right of any State to conclude regional or subregional agreements preservation of the marine environment or scientific research, or as affecting the legal validity of existing agreements. Reproduced from: Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisdiction, Colombia, Mexico and Venezuela: Draft Articles of Treaty Territorial Sea, U.N. Doc. A/AC.138/SC.II/L.21 (April 2, 1973).

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Chapter Three: Appendix Three Document 3.6

PRINCIPLES OF MEXICO ON THE JURIDICAL REGIME OF THE SEA Mexico City, February 3, 1956 WHEREAS: The topic “System of Territorial Waters and Related Questions: Preparatory Study for the Specialized Inter-American Conference Provided for in Resolution LXXXIV of the Caracas Conference” was included by the Council of the Organization of American States on the agenda of this Third Meeting of the Inter-American Council of Jurists; and Its conclusions on the subject are to be transmitted to the Specialized Conference soon to be held, The Inter-American Council of Jurists RECOGNIZES as the expression of the juridical conscience of the Continent, and as applicable between the American States, the following rules, among others and DECLARES that the acceptance of these principles does not imply and shall not have the effect of renouncing or prejudicing the position maintained by the various countries of America on the question of how far territorial waters should extend. A TERRITORIAL WATERS 1. The distance of three miles as the limit of territorial waters is insufficient, and does not constitute a general rule of international law. Therefore, the enlargement of the zone of the sea traditionally called “territorial waters” is justifiable. 2. Each State is competent to establish its territorial waters within reasonable limits, taking into account geographical, geological, and biological factors, as well as the economic needs of its population, and its security and defense. B CONTINENTAL SHELF The rights of the coastal State with respect to the seabed and subsoil of its continental shelf extend also to the natural resources found there, such as petroleum, hydrocarbons, mineral substances, and all marine, animal, and vegetable species that live in a constant physical and biological relationship with the shelf, not excluding the benthonic species. C CONSERVATION OF LIVING RESOURCES OF THE HIGH SEAS 1. Coastal States, have the right to adopt, in accordance with scientific and technical principles, measures of conservation and supervision necessary for the protection of the living resources of the sea contiguous to their coasts, beyond territorial waters. Measures taken by a coastal State in such case shall not prejudice rights derived from international agreements to which it is a party, nor shall they discriminate against foreign fishermen. 2. Coastal States have, in addition, the right of exclusive exploitation of species closely related to the coast, the life of the country, or the needs of the coastal population, as in the case of species that develop in territorial waters and subsequently migrate to the high seas, or when the existence of certain species has an important relation to

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an industry or activity essential to the coastal country, or when the latter is carrying out important works that will result in the conservation or increase of the species.

1. 2.

3. 4.

1. 2. 3. 4. 5.

D BASELINES The breadth of territorial waters shall be measured, in principle, from the low-water line along the coast, as marked on large-scale marine charts officially recognized by the coastal State. Coastal States may draw straight base lines that do not follow the low-water line when circumstances require this method because the coast is deeply indented or cut into, or because there are islands in its immediate vicinity, or when such a method is justified by the existence of economic interests peculiar to a region of the coastal State. In any of these cases the method may be employed of drawing a straight line connecting the outermost points of the coast, islands, islets, keys, or reefs. The drawing of such base lines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within these lines must be sufficiently linked to the land domain. Waters located within the base line shall be subject to the régime of internal waters. The coastal States shall give due publicity to the straight base lines. E BAYS A bay is a well-marked indentation whose penetration inland in proportion to the width of its mouth is such that its waters are interfauces terrae, constituting something more than a mere curvature of the coast. The line that encloses a bay shall be drawn between its natural geographical entrance points where the indentation begins to have the configuration of a bay. Waters comprised within a bay shall be subject to the juridical régime of internal waters if the surface thereof is equal to or greater than that of a semicircle drawn by using the mouth of the bay as a diameter. If a bay has more than one entrance, this semicircle shall be drawn on a line as long as the sum total of the length of the different entrances. The area of the islands located within a bay shall be included in the total area of the bay. So-called “historical” bays shall be subject to the régime of internal waters of the coastal State or States.

(Approved at the Fourth Plenary Session, February 3, 1956) (The statements and reservations made by Panama, the Dominican Republic, Cuba, Colombia, Brazil, Bolivia, Honduras, Venezuela, Guatemala, the United States, and Nicaragua are not reproduced here). Reproduced from: The Final Act of the Third Meeting of the Inter-American Council of Jurists, Mexico City, Mexico, January 17–February 4, 1956. Department of International Law PAN AMERICAN UNION, Washington, D.C., 1956.

Rights, Jurisdiction & Duties of the Coastal State

X

– X

X X – –

Rights and Duties of other StatesFreedom of Navigation, Overflight, Laying of Submarine Pipelines, etc.

Basis for the Resolution of Conflicts

Exploring, Exploiting, Conserving & Managing Non-Living Resources (Oil, Natural Gas, and other Minerals)

Artificial Islands, Installations & Structures

Conservation of Living Resources

Utilization of Living Resources

Overlapping Stocks of Species

200 Nautical Miles

X X

Legal Regime

Breadth

X

Santo Domingo Declaration

Exclusive Economic Zone (EEZ)

Topics

X

X

X

X

X

X No Specific Nautical Mile

X

X

General Report of African States Held at Yaoundé 06/1972

X

X

X

X

X

X 200 Nautical Miles

X

X

UN General Assembly Draft Articles on EEZ Presented by Kenya 08/1972

X

X

X

X

X

X No Specific Nautical Mile

X

X

UN General Assembly Draft Articles on Territorial Sea Presented by Colombia, Mexico and Venezuela 04/1973

Evolution of Law of the Sea Concepts Leading Up to the 1982 UN Convention

Document 3.7

X

X

X

X

X

X

X

X 200 Nautical Miles

X

X

UN Law of the Sea Convention

190 Chapter Three: Appendix Three

– – – – – – – – X – –

Marine Mammals

Anadromous Stocks

Catadromous Species

Sedentary Species

Rights of Land-Locked States

Rights of Geographically Disadvantaged States

Restriction on Transfer of Rights

Enforcement of Laws and Regulations

Delimitation

Charts

Santo Domingo Declaration

Migratory Species

Topics

(cont.)

X

X

X

X

X

General Report of African States Held at Yaoundé 06/1972

X

X

X

UN General Assembly Draft Articles on EEZ Presented by Kenya 08/1972

UN General Assembly Draft Articles on Territorial Sea Presented by Colombia, Mexico and Venezuela 04/1973

X

X

X

X

X

X

X

X

X

X

X

UN Law of the Sea Convention

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Chapter Four Mexico’s Exclusive Economic Zone: Its Establishment, Negotiation and Delimitation with Neighboring States 1. Introduction Pursuant to a solemn and formal amendment to its Political Constitution of 1917, Mexico established an exclusive economic zone of 200 nautical miles around its vast marine littorals in the Pacific Ocean, the Gulf of Mexico and the Caribbean Sea on February 6, 1976.1 Although Mexico on previous occasions had already hinted the establishment of this zone,2 its official adoption in 1976 – when UNCLOS III was in its early stages and the notion of the exclusive economic zone was in the process of being created and negotiated – took many States by surprise, including the United States.3

1

2

3

Decree adding an Eighth Paragraph to Article 27 of Mexico’s Political Constitution to establish an Exclusive economic zone situated outside the Territorial Sea, published in the Diario Oficial of February 6, 1976. For legal and diplomatic reasons, this decree was designed to have a vacatio legis to make it enter into force one hundred and twenty days after its publication in the Diario Oficial,” i.e., on June 6, 1976; exactly one month after the ending of the fourth New York session of UNCLOS III, when the Informal Revised Negotiating Text (IRNT) came out. The decree enacting Mexico’s EEZ Act (published in the D.O. of 13 February 1976) also adhered to this vacatio legis legislative policy. On March 31, 1972, Lic. Luis Echeverría Alvarez, then President of Mexico, in a visit to the Mexican island of Holbox, Quintana Roo, strongly expressed his support in favor of a 200 n.m. zone (then characterized as a “Patrimonial Sea”), and in April 27 of 1974 and in August 6 of 1975, Mexico’s Secretary of Foreign Affairs announced that Mexico was “to legislate” a 200 n.m. zone. See Alejandro Sobarzo. México y su Mar Patrimonial (Mexico and Its Patrimonial Sea) (1976) at 58; A. Székely. México y el Derecho Internacional del Mar. UNAM (1979) at 156–157; and as reported in Excélsior, Mexico City, April 27, 1974 and August 6, 1975. The United States was the only State that made a public statement “lamenting” Mexico’s unilateral establishment of its exclusive economic zone and stating that there should be a multilateral agreement. See “Lamenta Estados Unidos la Creación por LEA de la ZEE” (The U.S. Laments the Creation by Echeverría of an EEZ ), Excelsior, Mexico City, November 7, 1975 at 1.

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For Mexico, the establishment of the 200 nautical mile zone resulted from the combination of a fortunate and unusual set of circumstances. First of all, Lic. Luis Echeverría Alvarez was then the President of Mexico (1970–1976). He distinguished himself as a leader of the so-called “Third World,” a political concept embracing developing nations who had gained political independence but were struggling to find a path towards social and economic development, democracy and political stability.”4 Echeverría was convinced that this new marine zone was a key example of the “New Law of the Sea,” interpreted as a more just and democratic legal order for the oceans that was being articulated at that time by Latin America and other developing countries. In his speech before the Caracas session of UNCLOS III in 1974, Echeverría said: In the Patrimonial Sea the coastal State enjoys sovereign rights over living and mineral resources, renewable or non-renewable, located in the water column, in the seabed and its subsoil but without exercising sovereign rights over the spaces themselves. In addition, it is a zone where the coastal State exercises other important powers to prevent [marine] pollution and to regulate scientific research. The Patrimonial Sea is not a mere preferential fishing zone but an exclusive one. The totality of the living resources located therein are reserved to the nationals of the coastal State, even in the case where this State does not have its own means to exploit them in their totality. But in this hypothesis, the coastal State should grant licenses or permits charging for them, although under reasonable conditions, to the nationals of other States for the exploitation of the surplus, thus allowing the coastal State to obtain an economic benefit and thus avoiding such resources to be lost for everyone. ..... An essential element of the Patrimonial Sea is that the vessels and aircraft of all States have the freedom of navigation and overflight, with no other restrictions, as stated in the joint proposal by Colombia, Mexico and Venezuela, “than those that may result from the exercise, by the coastal State, of its own rights in the same sea.” The same freedoms exist regarding the laying of submarine pipelines and cables.5

Another circumstance for Mexico to adopt an exclusive economic zone was the recognition of the role that Mexican diplomacy played in the codification of the law of the sea at the Geneva conferences of 1958 and 1960. The work of

4

5

Speech of President Echeverría to the United Nations General Assembly on October 5, 1971. UNGA Doc. A/PV.1952, 26th Session, Official Records, 1952nd Plenary Meeting, New York at 1–4. Ibid.

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Alfonso García Robles at these two conferences,6 assisted by Jorge Castañeda, solidified Mexico’s special interest in this international law area. Under the expert direction of Amb. Jorge Castañeda, then Under Secretary for Foreign Affairs, Mexico composed a small delegation to participate at UNCLOS III.7 A third circumstance that favored the adoption of an exclusive economic zone was that Mexico was required to change its philosophy about its surrounding oceans. Since the triumph of the massive revolutionary movement of 1910, Mexico had been characterized as an “agrarian” nation, economically and politically. A nation only looking inward to its land mass as the basis for its development: a large but dry and arid territory, crisscrossed by rugged chains of mountains, with deserts and extended arid regions with little or no water. Thus, the establishment of Mexico’s exclusive economic zone was an initial step directed at transforming an agrarian country into a marine nation.8 From a legal perspective, Mexico’s establishment of its 200 nautical mile exclusive economic zone led to the definition and legal resolution of a number of domestic and international delicate law of the sea questions, such as the publication of the required legislative enactments at the domestic level; the use of islands for the delimitation of the international boundaries of Mexico’s new ocean space in symmetry with international law and with the Informal Single Negotiating Text (ISNT) produced in Geneva in 1975 at the closing of the third session of UNCLOS III; the impact that this space was to produce on the definition and legal status of the waters in the Gulf of California; and the negotiation and signing of the maritime bilateral agreements with Cuba, the United States, and other neighboring countries bordering Mexico’s exclusive economic zone. 6

7

8

García Robles served as Secretary of Foreign Affairs (SRE) from December of 1975 to November 1976. The establishment by Mexico of a 200-nautical mile is included among his diplomatic accomplishments and the emphasis on the New International Economic Order (NIEO). As the legal architect of the Treaty for Prohibition of Nuclear Weapons in Latin America and the Caribbean (known as the Tlatelolco Treaty), after his tenure as Secretary he was designated Permanent representative to the conference of the Disarmament Committee in Geneva. In October of 1982 he was awarded the Nobel Peace Prize. Dr. García Robles died in 1991. Some of the members of the Mexican delegation, headed by Amb. Castañeda, included: Manuel Tello, Andres Rozental, Alejandro Sobarzo, Alicia Cabrera, Admiral Gilberto López Lira, Victor Manuel Solano and Capt. Guillermo Maldonado, covering the Second Committee; Bernardo Sepúlveda and Alberto Székely, in the First Committee; and José Luis Vallarta Marrón and the author of this chapter in the Third Committee. Tello became Secretary of Foreign Affairs in 1994 and Sepúlveda occupied the same position in 1982–1988 and currently serves as Judge of the International Court of Justice (ICJ). During the administration of President Ruiz Cortinez, a highly publicized national campaign titled: “Marcha hacia el Mar” (March towards the Oceans) was launched. It did not produce any successful results.

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2. The Exclusive Economic Zone in Mexico’s Domestic Legal Arena A. The EEZ and Mexico’s Federal Constitution The Political Constitution of Mexico has been utilized by the President of that country as a document to enunciate important public policies or accomplishments of national importance in the legal, economic, social or political arenas.9 Some of these presidential amendments have included, for example, the mandate ordered by President Lázaro Cárdenas that “the education imparted by the State shall be socialist, exclude all religious doctrines and fight fanaticism and prejudices” incorporated in Article 3 of the Constitution in 1934.10 President Ernesto Zedillo, only one month after taking office, changed the composition of Mexico’s Supreme Court and transformed the structure of Mexico’s federal judicial system by amending Article 94, para. I, of the Constitution in 1995.11 And President Miguel de la Madrid, interested in recognizing the right of each Mexican to have his own house and the convenience for Mexico to have a clear policy in the conduct of foreign affairs, amended Article 4 of the Constitution to declare the aspirational goal that “Every [Mexican] family has the right to enjoy having an appropriate dwelling,” and Article 89 to enunciate the “normative principles” that guide Mexico’s foreign policy.12 Inspired by the Constitution of the United States, the Constitution of Mexico prescribes that it can only be amended by the affirmative vote of two-thirds of the members of Congress and the corresponding approval by the majority vote of the State legislatures.13 However, since Partido Revolucionario Institu9

10

11

12

13

See Jorge Carpizo. Las Reformas Constitucionales en México (The Constitutional Amendments in Mexico). UNAM, México (1983) and Derecho Constitucional Comparado México-Estados Unidos (Comparative Constitutional Law Mexico-United States). IIJ/UNAM, México (1990). This unusual language was added to Art. 3 of the 1917 Constitution through an amendment made by President Cardenas published in the Diario Oficial on December 13, 1934. For details see Felipe Tena Ramírez. Leyes Fundamentales de México (Fundamental Laws of Mexico). México (1991) at 881–882. Jorge A. Vargas. The Rebirth of the Supreme Court of Mexico: An Appraisal of President Zedillo’s Judicial Reform in 1995. 11:2 Amer. Univ. J. of Int’l Law and Policy at 295–341 (1996). Article 89 of the Political Constitution enunciates the rights and obligations of the President. Paragraph X reads: “To direct the foreign policy and enter into international treaties, submitting them to the approval of the Senate. In the conduct of said policy, the head of the Executive Power shall observe the following normative principles: self-determination of peoples; non-intervention; peaceful settlement of disputes; proscription of the threat of or use of force in international relations; legal equality of States; international cooperation for development; and the endeavor for peace and international security.” See Article 135 of the Federal Constitution, Constitución Política de México. Comentada y Concordada (Political Constitution of Mexico. Commented and Annotated). Vol. V, Porrúa/UNAM, México (2010) at 149–165. See also J. Carpizo. Las Reformas Constitucionales

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cional (PRI) politically won each and every election at the federal, State and municipal levels during 71 consecutive years (1929–2000), any constitutional amendment proposed by the President during those years easily obtained the necessary votes to become an expeditious and successful amendment to the Constitution.14 Endowed de facto by this unchallenged political power (known in Mexico as an “unwritten power”), virtually each Mexican President took advantage of it to amend the Constitution and thus include in its pages his personal imprint, thus giving this fundamental document a “programmatic” or “aspirational” content.15 Convinced that the exclusive economic zone was to become a key legal notion of the new law of the sea at UNCLOS III, President Echeverría proceeded to introduce two legislative bills to the Mexican Senate:16 one to establish a 200 nautical mile exclusive economic zone by adding an Eighth Paragraph to Article 27 of the Constitution; and the second, to propose the enactment of a federal Act (Ley Reglamentaria) that would detail the content and legal nature of Mexico’s exclusive economic zone.17 President Echeverría had three objectives at that time: first, to leave his personal imprint in the Political Constitution as the author of a constitutional amendment that would establish a 200 nautical mile exclusive economic zone for Mexico. Second, to enact the required legislation detailing the new marine zone through the enactment of a Reglamentary Act (Ley Reglamentaria)18 and

14

15

16

17

18

de México (Mexico’s Constitutional Amendments) in Estudios Constitucionales (Constitutional Studies). Porrúa/UNAM (1999). Jorge A. Vargas. Introduction to Mexico’s Legal System in Mexican Law for the American Lawyer. Carolina Academic Press (2009), Chap. 1 at 15–16, 3–54. Jorge A. Vargas. ‘2.5: A Programmatic, Aspirational and Readily Amendable Public Document in The Constitution of Mexico. Mexican Law: A Treatise for Legal Practitioners and International Investors, West Group, Vol. I (1998) at 42–45. For a more detailed treatment of this subject, see also Vargas. Mexico’s Legal Revolution: An Appraisal of Its Recent Constitutional Changes, 1988–1995. 25 Georgia J of Int’l and Comp. Law (1996) at 497–559. Pursuant to Article 71 of the Political Constitution, the President of the Republic, deputies and senators to the Congress of the Union; and the State legislatures are invested with the right to initiate laws or decrees. In the legislative process, the Chamber of origin may be either the Senate or the Chamber of Deputies (Cámara de Diputados), according to para. H of Article 72 of the Constitution (except for certain subjects such as loans, taxes, or recruiting of troops that must be initiated at the Chamber of Deputies). The language of these legislative bills: Iniciativas de Decreto y Ley enviadas por el Presidente de la República, Lic. Luis Echeverría, a la Cámara de Senadores el 4 de Noviembre de 1975, relativas al establecimiento de la Zona económica exclusiva is reproduced in Appendix 3 of J.A. Vargas. La Zona Económica Exclusiva de México (Mexico’s Exclusive Economic Zone). México (1980) at 43–58 (hereinafter Mexico’s EEZ). These legislative enactments appear in Appendix Four at the end of this chapter. Under Mexican law, Ley Reglamentaria is a legislative federal enactment of he highest legal hierarchy that expands and details a most important legal subject that directly derives from a

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proceed to establish its outer boundaries through a special decree that would lead to the negotiation with bordering nations of the corresponding international bilateral agreements establishing their respective maritime boundaries; and third, to assert before the international community that these maritime policies and legislative enactments were in consonance with international law. 1. Addition of an Eighth Paragraph to Article 27 of the Constitution In his Fifth State of the Union Report submitted to Congress on September 1, 1975, Echeverría formally announced that he was sending a legislative bill to Congress to amend the Constitution to establish a maritime exclusive economic zone. The rationale of the two legislative bills provides a historical and legal discussion of the progression of Mexico’s legislative policies towards the reaffirmation of the exercise of exclusive sovereignty over its natural resources, both landbased and marine, found in Article 27 of the Constitution.19 This historical review referred to the incorporation to the national territory of the submarine continental shelf in 1960; the creation of an exclusive fishing zone between 9 and 12 nautical miles in 1966; the enlargement of the territorial sea from 9 to 12 nautical miles in 1969; and the delimitation of the territorial sea in the interior of the Gulf of California through the application of the straight baseline method in 1968. For Mexico, the establishment of the exclusive economic zone carried special implications associated with the Gulf of California. For a long time, international law specialists in that country explored creative approaches in symmetry with international law that would result in the “closing” of this gulf and thus accomplish its so-called “Mexicanization.”20

19

20

specific Article of the Political Constitution such as, for example, the Oil Act (derived from Art. 27), the Professions Act (Art. 5), the Amparo Act (Arts. 103 and 107), etc. Both Congress and the Federal Executive have this legislative power. For a discussion of Article 27 of the Constitution, and other provisions pertaining to Mexico’s national territory, see Chapter One of this book: Mexico and Its Territory. Constitutional Principles and Foundations. In 1965, a group of deputies of Partido Acción Nacional (PAN) formulated a legislative bill to amend Articles 27, 42 and 48 of the Political Constitution “to include the Gulf of California within the national territory under the control of the Federal government.” The bill was voted down. For a review of similar attempts, see also María Luisa Garza Ramírez. El Golfo de California. Mar Nacional (The Gulf of California. National Sea). UNAM (1976) and J.E. Salgado and A. Murguía Rosete. La Bahía Histórica de California (The Historic Bay of California). Ed. Diana (1976). For the application of the straight baseline system for the demarcation of the territorial sea within the Gulf of California, see B. Sepúlveda Amor. Derecho del Mar. Apuntes sobre el Sistema Legal Mexicano (Law of the Sea: Notes on Mexico’s Legal System), 12 Foro Internacional (1972) at 232–271.

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Since in 1974, when the topic of the exclusive economic zone was first discussed at UNCLOS III in Caracas, the legal substance of this marine space became one of the most delicate and difficult questions upon which to generate consensus among the participating delegations. Aware of this circumstance, in the rationale of the legislative bills sent to Congress regarding this delicate question, Mexico’s position on this matter was explained this way: The legal regime of the exclusive economic zone (EEZ), according to the debates and proposals submitted to the conference, is basically the following: the coastal State enjoys sovereign rights in its EEZ regarding the exploitation of all natural resources, renewable and non-renewable, in the waters, soil and subsoil out to 200 miles from the coastline, and jurisdiction regarding the establishment and utilization of artificial islands and other installations, marine scientific research, the preservation of the marine environment, and other economic uses of the water, currents and winds, such as the production of energy. All the other States, coastal or landlocked, enjoy in this zone the freedoms of navigation and overflight, of the laying of submarine cables and pipelines, and other internationally lawful uses relating to navigation and communication. Regarding the EEZ’s legal regime it has been recognized, at Mexico’s initiative, that it is neither a high seas zone with exceptions in favor of the coastal State nor a territorial sea with exceptions in favor of the other States, but an area with a sui generis legal regime.21

The legal features of the economic exclusive zone described in this rationale were in legal symmetry with the terminology and the substance of Articles 45–47 of the Informal Single Negotiating Text (ISNT)22 prepared by Reynaldo Galindo Pohl, Chair of the Second Committee of UNCLOS III.23

21 22

23

Vargas, Mexico’s EEZ, supra note 17 at 49–50. In his Rationale, President Echeverría pointed out that his proposed Reglamentary Act for the EEZ “adheres very closely to the guidelines of the negotiating texts produced by UNCLOS III at its last sessions (1975–1976) as the basis for negotiation.” It deserves to be noted that the Rationale, the proposed Paragraph Eighth to be added to Article 27 of the Constitution, as well as the language of the “Reglamentary Act on the EEZ,” were prepared by a team of international law experts from the Secretariat of Foreign Affairs (SRE) under the personal direction of Amb. Castañeda. The Third U.N. Conference on the Law of the Sea at its 55th meeting on 18 April 1975 adopted a proposal by the President of the Conference, H.S. Amerasinghe, that the chairmen of the three main committees “should each prepare a single negotiating text covering the subjects entrusted to his committee.” See U.N. Doc. A/CONF.62/WP.8/PART II, May 7, 1975 at 27. Amb. Castañeda, Head of the Mexican delegation, was the author of the proposal suggesting that each of the chairman of the three main committees, in their capacity as officer of the conference and not as representative of his own country, should prepare this “informal negotiating text.” See U.N. Doc. A/CONF. 62/SR.54.

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Save for a couple of minor changes,24 the final language of the new paragraph eight added to Article 27 of the Political Constitution, as approved by Congress and the State legislatures, reads today: The Nation exercises in an exclusive economic zone situated outside of the territorial sea and adjacent to it, the sovereign rights and the jurisdictions determined by the laws of Congress. The exclusive economic zone shall extend to two hundred nautical miles, measured from the baseline from which the territorial sea is measured. In those cases in which said extension produces overlapping with the exclusive economic zones of other States, the delimitation of the respective zones shall be made, as it may be necessary, through agreement with those States.25

As a result of the establishment of a 200 nautical-mile exclusive economic zone that entered into force on June 7, 1976, today Mexico reports the following data regarding this zone:

Area of Mexico’s Exclusive Economic Zone Alone Pacific Ocean Gulf of Mexico and Caribbean Total:

2,003,251.00 km. 640,796.40 km. 2,644,047.50 km.

584,208.47 sq. mi. 186,875.47 sq. mi. 771,083.94 sq. mi.

Joint Area of Mexico’s EEZ and Its Territorial Sea Pacific Ocean Gulf of Mexico and Caribbean Total:

24

25

26

2,179,260.00 km. 703,494.00 km. 2,882,754.00 km.

635,638.00 sq. mi. 205,160.00 840,698.00 sq. mi.26

In his legislative bill, President Echeverría proposed this language for the new paragraph eight: “The exclusive economic zone shall extend out to 200 nautical miles . . .except in front of the coasts of the peninsula of Yucatán where the delimitation of the zone shall be effected in the measure to be necessary, by agreement with the interested States.” According to Sobarzo Loaiza, the reference to the Yucatán peninsula (See language in Italics supra) was deleted because “it was judged inconvenient” since it may have given the impression that “the islands in front of [said peninsula] did not have the right to have an EEZ” such as was the cases of the Mexican islands Cozumel, Cayo Arenas and Arrecife Alacrán, and certain interpretations derived from Art. 132, paras. 2 and 3 of the ISNT. See Sobarzo. México y su Mar Patrimonial, supra note 2 at 84–86. Vargas, Mexico’s EEZ, supra note 17, Appendix 4 at 59–60. Decreto que Adiciona el Artículo 27 de la Constitución, añadiendo un Nuevo párrafo después del Párrafo Séptimo, para Establecer una ZEE (Decree Amending Article 27 of the Constitution by adding a new paragraph after the seventh paragraph, establishing an EEZ) published in the Diario Oficial of February 6, 1976. This decree entered into force one-hundred and twenty days after its publication in the federal official daily (D.O.), namely on June 7, 1976 (Vacatio legis). Data taken from Eduardo Solis Guillén. Derecho Oceánico (Ocean Law). Porrúa, México (1987) at 256.

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2. The Reglamentary Act on the Exclusive Economic Zone of February 13, 1976 This federal statute (Ley Reglamentaria) is derived from the Eighth Paragraph of Article 27 of the Political Constitution and its purpose is to expand and detail the legal features of Mexico’s EEZ. Its objectives include: This [second] legislative bill responds to the objectives established by the constitutional addition. The rules to be observed regarding the width of the EEZ are duly pointed out. In the coastlines facing the Yucatan peninsula, said zone cannot reach out to 200 nautical miles due to the proximity of other States who also have the right to an EEZ; consequently, it is anticipated to enter into bilateral agreements with those States, as it may be necessary, to delimit the respective EEZs. With respect to the islands that form a part of Mexico’s national territory, [this bill] embraces the rule established by the Informal Single Negotiating Text (ISNT) that was produced this year at Geneva by UNCLOS III as the basis for negotiation, namely: that islands shall also have an EEZ, except those that cannot sustain human habitation or economic life of their own27 (Aquellas que no puedan mantenerse habitadas o que no tengan vida económica propia). Taking into consideration that the EEZ has been principally created for the benefit of the coastal populations, it should be understood that inhabited rocks or islets (Rocas o islotes despoblados) are to be excluded. . . . [I]t corresponds to the coastal State to determine the allowable catch of living resources, taking into account on the one hand the objective of their optimum utilization and, on the other, the need of maintaining or restoring the populations of different species to levels that may render the maximum constant yield. Regarding the access to be given to the surplus of the permissible catch, it is specified that the corresponding permits shall be granted according to the national interest and under the conditions established by the Federal Act for the Promotion of Fishing (Ley Federal para el Fomento de la Pesca). Said conditions may include the payment of rights or other forms of remuneration; the determination of the species that may be caught and the establishment of fishing limits; the regulation of fishing seasons and zones; and the transfer of fishing technology, among others.28

This bill’s rationale expressly recognized that the establishment of the EEZ “left untouched the freedoms of navigation, overflight and of laying of submarine cables and pipelines and other international legitimate uses relating to navigation and communication.”29 It concluded by clarifying that Mexico’s submarine

27

28

29

It should be noted that the English language used for this phrase was taken verbatim from para. 3 of Article 132 of the Informal Single Negotiating Text (ISNT), prepared by the Chairman of the Second Committee and distributed as UN Doc. A/CONF.62/WP.8/PART II. The phrase in Spanish (in parenthesis) corresponds to the original language used by President Echeverría in his Legislative Bill. Rationale of the Reglamentary Act (Iniciativa de Ley Reglamentaria), taken from Vargas, Mexico’s EEZ, supra note 17, Appendix 3 at 53–55. Ibid. at 55.

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continental shelf “was subject to a different legal regime . . . not to be modified by the present legislative bill.”30 The Congress approved the bill, and the final language of the “Reglamentary Act of the Eighth Paragraph of Article 27 of the Constitution relative to the Exclusive Economic Zone”31 was published in the Diario Oficial of February 13, 1976. Basically, the language of this statute consisted of a selection of texts containing the major characteristics that until that time (May 7, 1975) identified and provided the most salient legal components of the exclusive economic zone, as reflected in the language of the Informal Single Negotiating Text (ISNT, Part III: EEZ, Articles 45–51),32 that was informally prepared as an officer of the conference by Reynaldo Galindo Pohl, Chairman of the Second Committee. It may be recalled that UNCLOS III, at its 55th meeting of April 18, 1975, adopted a proposal by Hamilton Shirley Amerasinghe, President of the conference, that the chairmen of the three main committees “should each prepare a single negotiating text covering the subjects entrusted to his committee, taking account of all formal and informal discussions and proposals.” The text in question would only be “a basis for negotiation” rather than “a negotiated text or accepted compromise, and would not prejudice the position of any delegation.”33 Just at the second session of the conference at Caracas, some 115 delegations made official statements regarding the characteristics and legal nature of the then emerging marine space known as the exclusive economic zone.34 A slightly larger number of proposals on the EEZ (or similar marine spaces) were introduced to the Seabed Commission and to the Second Committee of the conference. In addition, as indicated by Galindo Pohl, “account was taken of the documents before the Conference and the official and unofficial consultations held during the current [third] session,”35 held at the Palais des Nations at

30 31

32 33 34

35

Id. Ley Reglamentaria del Párrafo Octavo del Artículo 27 Constitucional relativo a la Zona Económica Exclusiva (Reglamentary Act of the Eighth Paragraph of Article 27 of the Constitution relative to the EEZ) published in the Diario Oficial of February 13, 1976. This Act entered into force 120 days after its date of publication, simultaneously with the Decree adding paragraph eight to Article 27 of the Constitution, i.e., on June 7, 1976 (see infra note 92 on the Vacatio legis). The text of this Act is reproduced as Doc. 4.1 in the Appendix at the end of this chapter. U.N. Doc. A/CONF.62/WP.8/PART II (7 May 1975) Ibid. at 3. See, for example, Székely, supra note 2 at 153; E.D. Brown, The EEZ: Criteria and Machinery for the Resolution of International Conflicts between Different Users of the EEZ, 4 Marit. Pol. Mgmt. (1977) at 338, 325–350; and S.N. Nandan. The EEZ: A Historical Perspective, FAO Essays in Memory of Jean Carroz. Rome (1989) at 16–21. U.N. Doc. A/CONF.62/WP.8/PART II at 2.

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Geneva from March 17 to May 9, 1975. Therefore, the ISNT represented the most comprehensive and objective document that contained the official opinions of the largest number of States ever to attend an international conference regarding the exclusive economic zone. In other words, the ISNT constituted the best document that reflected the process of consensus that was taking place at the international level. Therefore, it was an accurate and objective articulation of what may considered as an emerging rule of customary international law that was later to become, at the entering into force of the 1982 U.N. Convention on the Law of the Sea, a conventional rule of international law. In sum, Mexico’s Reglamentary Act on the Exclusive economic zone reproduced the tenor of Articles 45, 46, 61 (1), 132, 45 (a) and (b); 45 (c) (I), 45 (d), 45 (c) (iii); 47 (1), 50 (1), 51 (1); 51 (2) and 51 (3) of the ISNT.36 3. Decree Establishing the Outer Boundaries of the EEZ of June 7, 1976 Mexico relied heavily on Part III of the ISNT relative to the Exclusive economic zone37 to formulate the language of both the addition of a new paragraph eight to Article 27 of the Political Constitution and the respective Reglamentary Act. A month before Mexico enacted its “Decree that Establishes the Outer Boundary of the Exclusive economic zone,”38 published on June 7, 1976, at the closing of the fourth session of the conference in New York, all the delegations received a copy of the Revised Single Negotiating Text (RSNT), dated May 7, 1976.39 Article 63 of the RSNT prescribed: 1. . . . [T]he outer limit lines of the exclusive economic zone and the lines of delimitation . . . shall be shown on charts of a scale, or scales adequate for determining 36

37

38

39

It can be said that, mutatis mutandis, the legal substance was virtually identical to the language later to be found in the corresponding articles in the Revised Single Negotiating Text (RSNT), the Informal Composite Negotiating Text (ICNT), the Draft Convention and, of course, the 1982 U.N. Convention on the Law of the Sea. Part III: The exclusive economic zone of the ISNT was composed by Articles 45 through 61. Mutatis mutandis, these articles correspond today to Articles 55–75 of the 1982 U.N. Convention on the Law of the Sea. Decreto que Fija el Límite Exterior de la Zona Económica Exclusiva de México (Decree that establishes the Outer Boundary of Mexico’s exclusive economic zone), published in the Diario Oficial of June 7, 1976. The entering into force of this decree was postponed to take place until July 31, 1976. This decree is reproduced as Appendix 6 in Vargas, Mexico’s EEZ, supra note 17 at 65–74. Revised Single Negotiating Text (RSNT) presented by the Chairman of the Second Committee, Dr. Andrés Aguilar, dated May 6, 1976. U.N. Doc. A/CONF.62./WP.8/Rev. 1/Part II. This informal text may be described as the revised and improved text that incorporated the latest developments on the topics assigned to the Second Committee (including the EEZ) in the course of 52 informal meetings, during which more than 3,700 interventions were made by over 120 delegations. For further details, see the Introductory Note prepared by Amb. Aguilar at 1–4.

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Chapter Four them. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit lines or lines of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.40

Evidently, this article provided the basis for Mexico to enact its EEZ delimitation decree a month later.41 In the decree’s rationale, it was noted that “the outer boundary of the exclusive economic zone shall be a line whose points all are at a distance of 200 nautical miles of the baseline from which the breadth of the territorial sea is measured.” Pursuant to Article 18, para. II of the General Act of National Assets42 it was pointed out that “the breadth of the territorial sea is measured from the line of low tide (Línea de bajamar) along the coasts and islands that form part of the national territory” or “in accordance with other criteria equally accepted by international law,” as also provided by said paragraph. Finally, it prescribed that for the Reglamentary Act relative to the exclusive economic zone duly to enter into force and produce its full effects, it was necessary that “navigators and public in general be aware of the exact location of the outer boundary of the exclusive economic zone.” This decree mandated that the Secretariats of the Navy and of Industry and Commerce should publish the corresponding marine charts depicting the outer boundary of the EEZ.43 The language of the outer boundary delimitation decree is quite technical. Article 1 declares that “the outer boundary of the exclusive economic zone is constituted by a series of arcs that unite the points whose geographical coordinates (Geodesic lines)” are specified. This system applied to twenty seven points demarcating said outer boundary, namely: I to XVI in the Pacific Ocean, including the islands Cedros, Clarion and Socorro; XVII to XIX in the Caribbean 40

41

42

43

Art. 63, RSNT. In the 1982 U.N. Convention on the Law of the Sea, Article 74 refers to the “Delimitation of the EEZ between States with opposite or adjacent coasts” and Article 75 addresses the question of “Charts and lists of geographical co-ordinates.” For a discussion of the Mexican practice regarding maritime delimitation, see Alejandro Sobarzo et al. Los Espacios Marítimos y su Delimitación (The Maritime Spaces and Their Delimitation). Secretaría de Energía, México (1999). Ley General de Bienes Nacionales (General Act of National Assets), as amended by decree published in the Diario Oficial of December 26, 1969 (This decree also extended Mexico’s territorial sea from 9 to 12 nautical miles by amending Article 18, para. II, of this federal Act). As of today (2010), Articles 37 and 38 of the Federal Oceans Act (FOA) establish the procedure for the demarcation of the inside boundary of the Internal Marine Waters based on the low-water mark. See the discussion on the FOA and Internal Waters in Chapter 2 of this book: Mexican Marine Zones: Their Legal Regime under the Federal Oceans Act of 1986. Art. 2, Decree establishing the EEZ’s Outer Boundaries.

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Sea, including the islands of Cozumel, Can Cun, Isla Mujeres, Isla Blanca and Isla Contoy; XX to XXVII in the Gulf of Mexico, including Cayo Arcas and Arrecife Alacrán (A reproduction of the corresponding nautical chart appears in Appendix Four of this chapter as “Map” ). Eventually, the establishment of the outer boundaries of Mexico’s exclusive economic zone based on the 1976 decree, led to negotiations for the establishment of the respective maritime boundaries between Mexico and the United States and Mexico and Cuba.44 4. Mexico’s Exclusive Economic Zone and International Law By its own definition, customary international law rules are the result of a very slow, delicate and gradual process of formation.45 However, once in a while a very unique type of a unilateral act by a given State emerges in the course of history – such as the Truman Proclamation, as the typical example – that generates an “instant” rule of customary international law. Possibly, the exclusive economic zone, as a newly recognized space of international law of the sea, may be considered by some scholars to be closer to the first model of formation of these rules.46 Or – for the reasons explained below – may actually qualify as one of those atypical norms that are “instantly” created by the passing of only a few years. Historically, the international legal community favors the orthodoxy of that very slow and gradual process of creation of customary international law rules. As a consequence, most unilateral acts by States in the world community tend to be reputed as acts that are contrary to international law instead of acts that “create” customary universal rules on a short period of time. Thus, such unilateral acts are likely to be repudiated by the international legal community. This may be the case, for example, of the Declaration of Santiago of 1952.47

44

45

46

47

For the discussion of these bilateral maritime delimitation agreements see section 3 in this chapter: “Maritime Delimitation with Other Countries.” In a civil law context, the slowness of this process may be similar to the legal notion of alluvium, that gradual deposition of sediment along the banks of a river that increases a given piece of land in an imperceptible but constant manner. History narrates that the Glossators, in explaining this notion to their students, indicated that the increase was to be equal to the growth of a watermelon from one day to the next. See, for example, Alfredo Vázquez Carrizosa. El Nuevo Derecho del Mar (The New Law of the Sea) (1976); Jorge Aja Espiel. El Derecho del Mar (Law of the Sea) (1977); E. Vargas Carreño. América Latina y el Derecho del Mar (Latin America and the Law of the Sea) (1973); Ralph Zacklin (Ed). Derecho del Mar. Constribución de los Países Latinoamericanos (Law of the Sea. Contribution of Latin American Countries); and Alvaro de Soto. The Latin American View of the Law of the Sea, 29 India Quarterly (1973) at 126–137. For a discussion of this trilateral act, see “The Santiago Declaration of 1952” in Chapter Three of this book, supra notes 84–106, and accompanying texts.

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Amerasinghe, President of the Third U.N. Conference on the Law of the Sea, at the Geneva session in 1975, exhorted the participating delegations not to engage in unilateral acts on any law of the sea questions to avoid obstacles to the slow and delicate process of negotiation that was taking place at that conference at that time.48 Therefore, when President Echeverría sent to the Mexican Senate his two legislative bills to amend the Constitution and establish a 200 nautical mile exclusive economic zone on November 4, 1975,49 just a few months after Amerasinghe’s statement, this official act may have been repudiated by some States (notably the United States)50 as a unilateral act not in symmetry with international law. For those familiar with Mexico’s diplomatic history, in the conduct of its international affairs that country has not only avoided adopting unilateral acts but it has consistently shown its respect for the rules and principles of international law and its compliance with those treaties and conventions to which it is a party. Accordingly, considering Mexico’s exemplary adherence to international law, it may seem appropriate to examine whether or not the establishment of its exclusive economic zone in February of 1976 was an act in consonance with international law. The short and simple answer is that when Mexico finally decided to establish a 200 nautical mile exclusive economic zone, this new marine space had become a rule of customary international law. Evidence of this was present in a number of global indicators including State practice;51 official declarations and statements as well as formal and informal proposals at UNCLOS III,52 and in the authoritative opinion of leading jurists on the law of the sea, notably Galindo Pohl and Aguilar, as reflected in the legal characterization of the exclusive economic zone in the language of the Informal Single Negotiating Text (1975),53 48 49 50

51

52

53

See Dr. Amerasinghe’s declaration at U.N. Doc. A/CONF.62/SR.56 at 7. For the content of these two legislative bills, see supra note 12 et seq. The United States was the only country that lodged a diplomatic note of protest. “Lamenta Estados Unidos la Creación por LEA de una ZEE del mar. Debe haber Acuerdo Multilateral” (The U.S. Laments the Creation of an EEZ by President Echeverría: There Must be a Multilateral Agreement). Excelsior, November 7, 1975. In 1976, the United States unilaterally established a 200-nautical mile “Fishing and Conservation Zone,” see infra note 82 and the accompanying text. As reported in Chapter 2 of this book, in the late 1970’s, forty-eight States had already established a 200 nautical mile exclusive economic zone in the Americas, Africa, Asia and Europe. For the list of these States, see note 160 in said chapter. In the 1980’s, an additional twenty-eight States had enacted legislation establishing a 200 n.m. EEZ, for a total of seventy six States. For the list of these States, see note 162 in Chapter 2 of this book, titled: Mexican Marine Zones. Their Legal Regime under the Federal Oceans Act. Just during the second (Caracas) session of UNCLOS III, a total of 115 delegations made official statements relative to the EEZ. Regarding the ISNT, see supra note 27.

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reiterated and refined in the Revised Single Negotiating Text (1976),54 and its eventual inclusion in the 1982 U.N. Convention on the Law of the Sea. The cumulative and unprecedented legal effect of all of these individual State acts, and the negotiated acts and proposals relative to the exclusive economic zone within the codification conference that was UNCLOS III, lead to the inescapable conclusion that at the time when Mexico established its exclusive economic zone of 200 nautical miles, the international community had already reached an implicit consensus supporting the exclusive economic zone (EEZ) as a new space of the law of the sea. In 1976 – when Mexico established its EEZ – over a hundred and fifty States had already given their consent to consider the exclusive economic zone as a key marine space indispensable to forging the formulation of the final 1982 law of the sea convention. These States had already crafted a solid but implicit agreement among the members of 121 States members of the Group of the 77, that without the EEZ it would have been impossible to produce the final convention. Virtually, the exclusive economic zone had been transformed into an “instant” rule of customary international law that served as the glue to keep together all the other pieces of the convention, as part of the “package deal.” Mexico could have easily established its exclusive economic zone anytime between 1972, when the Declaration of Santo Domingo was signed, and 1974, after the Caracas session of the conference, when an overwhelming majority of 115 delegations made formal statements supporting the exclusive economic zone in general terms. At that time, there was already sufficient political and diplomatic support clearly favoring the creation of the exclusive economic zone as a new law of the sea space. However, Mexico decided to take “a calculated risk”55 and wait until the end of the third period of the conference in Geneva to confirm that the majority of participating delegations had already reached the implicit consensus to consider the exclusive economic zone as the key ingredient for the success of the conference. This nearly universal implicit agreement was explicitly reflected in Part III: The Exclusive economic zone, Articles 45–61 of the Informal Single Negotiating Text dated on May 7, 1976. Moreover, in order to be absolutely certain that 54

55

According to Andrés Aguilar, Chairman of the Second Committee, who prepared the RSNT, he reviewed the materials of A52 informal meetings, during which more than 3,700 interventions were made,” with the participation ranging between A120 and 149 delegations.” See Introductory Note, Revised Single Negotiated Text, U.N. Doc. A/CONF.62/WP.8/Rev./Part II (May 6, 1976). As indicated earlier (see supra note 22), Amb. Jorge Castañeda not only had the idea for Mexico to establish an exclusive economic zone that he proposed to President Echeverría but also was in charge of drafting all the necessary legal work: the Rationale, the text of the new paragraph eight to Art. 27 of the Constitution and the language of the decrees relative to the Reglamentary Act of the EEZ and to the EEZ’s outer boundaries.

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the largest number of participating States had implicitly agreed to recognize the exclusive economic zone as a new marine space, Mexico confirmed this universal agreement when the essential legal components of the exclusive economic zone appeared unchanged (although with added refinements) in the subsequent Revised Single Negotiating Text (RSNT), Chapter III: Articles 44–63, that was made public in New York a year later, on May 6, 1976.56 This explains the fact that Mexico’s language of its new paragraph eight to Article 27 of the Constitution, and that of the Reglamentary Act detailing the exclusive economic zone, was taken directly from and reproduced in large part the language of the Informal Single Negotiating Text. A brief and synoptic historical review of the origin and evolution of the exclusive economic zone may serve to give a clearer idea of the rapid transformation of this marine space into an “instant” rule of customary international law.57 The exclusive economic zone traces back its historical origin and development to the unilateral practice of certain developing coastal States that favored an expanded jurisdiction to provide them with exclusive sovereign rights over the adjacent marine resources mainly for economic reasons.58 These States were against the traditional notion of a very narrow territorial sea, originally claimed to have a maximum width of 3 nautical miles by the major powers. Thus, this new zone since its inception was closely intertwined with the claim to enlarge the traditional width of the territorial sea. Those developing coastal States realized that for military, strategic and political considerations, the naval powers strongly favored a narrow territorial sea to maximize the vastness of the high seas, where they fully enjoyed the traditional freedoms of the sea. So, the developing coastal States advanced their claim favoring a larger “maritime zone” beyond the territorial sea but adjacent to it, conceding that in this new zone the naval powers would continue to enjoy the traditional freedoms of the highs seas. In essence, most developing coastal States were willing to recognize and respect the traditional freedoms of the high seas in the new zone as a quid pro quo for them to be able to exercise sovereign 56

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Revised Single Negotiating Text (RSNT), presented by the Chairman of the Second Committee, Andrés Aguilar (Venezuela). U.N. Doc. A/CONF.62/WP.8/Rev. 1/Part II (May 6, 1976). The Latin American Group and the Group of 77 made a special effort to see that the Second Committee of the conference, in charge of the most important substantive issues of the law of the sea (including the Exclusive economic zone) ended up under the Chair of leading Latin American jurists: Reynaldo Galindo Pohl (El Salvador) later replaced by Andrés Aguilar. For a comprehensive review and interesting discussion on the importance and process of formation of customary international law, see Damrosch, Henkin, Murphy and Smit. International Law. Cases and Materials (2009), Chap. 2 at 55–121. For a discussion of the origin and evolution of the Exclusive economic zone, see Chapter Three in this book, titled: Genesis and Development of the Exclusive economic zone in Latin America.

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rights over the adjacent marine resources so they could elevate the standard of living of their peoples. This international pattern of expanded maritime claims became quite evident offshore certain coastal States in Latin America, dating back to 1952, with the trilateral Declaration of Santiago launched that year by Chile, Ecuador and Peru. Since the exaggerated claim for a legally ambiguous “maritime zone of 200 nautical miles” (which was neither a territorial sea nor a fishing zone) did not produced the desired results originally contemplated by the three States, the idea was later adopted in a modified form by other developing coastal States within Latin America and the Caribbean first, and then gradually expanded to include numerous States in Africa and Asia. It was somewhat fortunate that instead of adopting a “200 nautical mile fishing zone” that in principle would have satisfied some of the economic objectives of these developing coastal States (and possibly diminish the opposition to this new zone by the major powers),59 certain States in Latin America came up in 1971–1972 with the creative, broader and legally more ambitious concept of the “Patrimonial Sea.”60 This new marine zone out to 200 nautical miles allowed the legal claim of a vast marine space beyond a relatively narrow territorial sea (of 12 nautical miles, which was at that time was the prevailing practice)61 where the coastal State exercised sovereign rights not only over the 59

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Interestingly, when Mexico was preparing to establish its Exclusive economic zone in 1976, the United States was already taking the necessary measures to enact its own 200 nautical mile “Fishery conservation zone.” See the content of the Fishery Conservation and Management Act, Pub. L. No. 94–265, 16 U.S.C. ‘1801 (1976) (reprinted in 15 I.L.M.634). For a discussion of this Act from a Mexican perspective, see Jorge A. Vargas. La Ley de Conservación de Pesca de Estados Unidos, UNAM, México (1967). See Jorge A. Vargas. The Legal Nature of the Patrimonial Sea, 22 German Yearbook of Int’l L. (1979) at142–177. According to E.D. Brown, until the decade of the 1970’s, a total of 98 States had officially established a 12 nautical mile (or longer) territorial sea, namely: Algeria (1963), Angola (1975), Bangladesh (1974), Barbados (1977), Benin (1976), Cambodia (1978), Cameroon (1974), Canada (1970), Cape Verde (1977), P.Rep. China (1958), Colombia (1978), Congo (1977), Cook Is. (1977), Costa Rica (1975), Cote d’Ivoire (1977), Cuba (1977), Cyprus (1964), Yemen (1977), Djibouti (1979), Ecuador (1966), Egypt (1958), El Salvador (1950), Equatorial Guinea 91984), Eritrea (1952), Fiji (1977), France (1971), Gambia (1968), Grenada (1978), Guatemala (1976), Guinea-Bissau (1978), Guyana (1977), Haiti (1977), Honduras (1965), Iceland (1979), India (1976), Indonesia (1960), Iran (1959), Iraq (1958), Italy (1974), Jamaica (1971), Japan (1977), Kenya (1972), Kuwait (1967), Liberia (1977), Libya (1977), Malaysia (1969), Maldives (1975), Malta (1978), Mauritius (1977), Monaco (1973), Morocco (1973), Mozambique (1976), Myanmar (1977), Nauru (1971), New Zealand (1977), Nicaragua (1979), Nigeria (1971), Niue (1978), Oman (1981), Pakistan (1976), Panama (1967), Papua New Guinea (1977), Peru (1947), Philippines (1961), Poland (1977), Portugal (1977), Rep. Korea (1978), Russian Fed. (1921), Samoa (1971), Sao Tome (1978), Saudi Arabia (1958), Seychelles (1977), Sierra Leone (1971), Solomon Is. (1978), Somalia (1972),

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living marine resources but over all kinds of resources, coupled with the exercise by the major powers of the traditional freedoms of the sea. This creative notion of the “Patrimonial Sea” promptly gained diplomatic and political support not only within Latin America and the Caribbean (as reflected in the Santo Domingo Declaration of 1972)62 but in Africa and Asia as well, especially when that novel space changed its name to the “Exclusive economic zone.” This strategic and timely change of name allowed the new maritime zone to gain the political support (and the necessary votes at UNCLOS III) of an overwhelming number of developing States, thus elevating it into a virtually new rule of customary international law. Therefore, the mysterious process that in a couple of decades clearly transformed an early unilateral 200 nautical mile “maritime zone” of the Santiago Declaration of 1952 into today’s exclusive economic zone that “instantly” gained wide and effective universal support, may be characterized as a most atypical and unorthodox process of creation of a customary rule of international law. A process that may be akin to what has been recognized as the “instant” formation of that kind of international law rule characteristic of the wide global support gained by the continental shelf as a result of the unilateral proclamation by President Truman in 1945.63 In sum, whereas in the past the process of formation of customary international law rules took a very long time, in modern times thanks to an array of scientific and technological developments as well as other considerations, the process of formation of those rules has been shortened quite dramatically. In addition, the proliferation of international organizations, led by the United Nations, and the ability of States to instantly communicate with other subjects of international law, constitutes another decisive factor that greatly contributes to accelerate the “instant” formation of these rules.64

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South Africa (1977), Spain (1977), Sri Lanka (1976), Sudan (1970), Suriname (1978), Sweden (1979), Thailand (1966), Togo (1977), Tonga (1978), Trinidad (1979), Tunisia (1973), Ukraine (1921), U.A. Emirates (1970), Uruguay (1969), Vanuatu (1981), Venezuela (1956), Vietnam (1977), Yemen (1967) and Zaire (1974). Taken from Table 6.1: Territorial Sea Claims, E.D. Brown. The Int’l Law of the Sea, Vol. I (1994) at 46–49. For a discussion of the Declaration of Santo Domingo, see Chapter 3 of this book: Genesis and Development of the Exclusive economic zone in Latin America, supra notes 84–132 and the accompanying texts. Regarding the Truman Proclamation, see Chapter 1 in this book: Mexico and Its Territory. Constitutional Principles and Foundations, notes 83–85 and the accompanying texts. In the past, due to the infrequency and slowness of contacts, trade and communications between nations; the lack of roads, bridges and other infrastructures, and the absence of modern vessels, vehicles and aircraft, not to mention the lack of international organizations and regional and global conferences, the process of formation of customary international law rules was diffused, difficult and deficient. In modern times (dating back to the second half of the 20th century), principally because of the accomplishments in science and technology, the

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It has become quite evident that these amazing technological and scientific developments, coupled with the effectiveness of the results produced by large and periodic international and regional conferences, have contributed to accelerate the process of progressive development and codification of international law.65 This is precisely what happened with the drastic transformation of a repudiated maritime zone of 200 nautical miles in the 1950’s to the new and globally welcomed exclusive economic zone of 200 nautical miles in the 1970s, and its formal incorporation as a conventional rule of international law as part of the 1982 U.N. Convention on the Law of the Sea, as a triumph of the multilateral diplomacy and global negotiations conducted at UNCLOS III. Mexican international law specialists agree that Mexico’s establishment of a 200 nautical mile exclusive economic zone in 1976 was a unilateral act in consonance with international law. In the words of the respected scholar César Sepúlveda: The Mexican legislative enactments relative to the exclusive economic zone reveal great orthodoxy. They adhere in great detail to what is prescribed by the Informal Single Negotiating Text (ISNT) on that subject, meaning that they are based on the general consensus of the international community, that may be reputed as firm. That is to say,. . . . . in case a general agreement is not going to be reached, what may be considered customary international law, incorporated in the ISNT, would prevail.66

In conclusion, the unilateral establishment by Mexico of an exclusive economic zone of 200 nautical miles by the presidential decrees of February 6 and 14 of 1976 (similar to the continental shelf proclamation of President Truman in 1945),67 may be considered an official act in legal symmetry with international law.68

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contacts and communication between States, the exchange of ideas, and the diplomatic and political work conducted at regional and international organizations and other fora, the process of formation of customary international law rules has been considerably shortened in time, enhanced in diplomatic and legal substance and greatly accelerated in results. Indeed, this is a new era that is witnessing the “instant” formation of all kinds of international law rules in intellectual property, trade, diplomacy and definitively law of the sea. Regarding treaties and codification of international law, see Oscar Schachter. International Law in Theory and Practice (1991) at 66–72. César Sepúlveda. Derecho Internacional (International Law). Porrúa, México (1991) at 470–472 (Emphasis added ). Proclamation 2667: Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, September 28, 1945, 10 Fed. Reg. 12303 (1945), 3 C.F.R. 67 (1943–1948), 13 Dept. State Bull. 485 (1945). For other opinions on Mexico’s adherence to international law, see Székely, supra note 2 at 151–158; Mexico’s Unilateral Claim to a 200-Mile EEZ: Its International Significance, 4 Ocean Dev. & Int’l L. J. at 195–211; The EEZ: A Carefully Legislated Development of Great Significance for Mexico’s Future at 223–241; and Sobarzo et al., supra note 50 at 100–105.

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B. Delimitation of the Exclusive Economic Zone 1. Maritime Delimitation and International Law Since time immemorial, islands have played a key strategic and economic role as an integral part of the coastal State’s territory. Both the United States69 and Mexico70 possess a relatively large number of islands. Recently, because of technological advancements of the offshore oil industry and the presence of the 200-nautical-mile exclusive economic zone on a global scale due to the successful formulation of the 1982 U.N. Convention of the Law of the Sea, it has been estimated that because of this new marine zone some 331 maritime boundaries71 may be required to be established in the world. Traditionally, the demarcation of international boundaries between States – whether terrestrial or maritime – requires a delicate, complex and technical process of negotiation that tends to be controlled not only by technical considerations but also by questions of a historical, political, legal, economical and geographical nature.72 This may be the case of Mexico and the United States, as suggested by Feldman and Colson, when they negotiated with that country the very first 200 nautical-mile fishery limit in the spring of 1976, having as

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The establishment of a 200 nautical-mile exclusive zone by United States resulted in the largest EEZ in the world, “with an area of approximately 2,222,000 square nautical miles off the coasts of the fifty states and 885,000 square nautical miles off the coasts of the possessions and commonwealth,” and extending into these “six different water bodies: the Atlantic Ocean, the Gulf of Mexico, the Caribbean Sea, the Pacific Ocean, the Bering Sea, and the Chukchi Sea (Arctic Ocean);” see Robert W. Smith. The Maritime Boundaries of the United States, Geographical Review, Vol. 71, No. 4 (Oct. 1981) at 395, 395–410. For the establishment of these boundaries, the U.S. utilized numerous islands, i.e., American Samoa, Guam, Howland and Baker Islands, Jarvis Island, Midway Island, Northern Marianas, Palmyra Island, Puerto Rico, Virgin Islands and Wake Island with maritime boundaries reaching a total of 9,798 nautical miles. Ibid. at 398. Mexico has numerous islands in front of its 11,592.77 km. of coastlines (some 4,848 nautical miles) in the Gulf of California, and a selected few with international implications in the Pacific Ocean, the Gulf of Mexico and the Caribbean Sea because of its 200 nauticalmile exclusive economic zone and the presence of neighboring countries. Although the total number of the Mexican islands remains officially undetermined by the government of that country, based on different “island catalogues” that number fluctuates between some 200 and 450. Thanks to Isla Guadalupe and Isla Clarion in the Pacific Ocean, and Cayo Arcas and Arrecife Alacrán in the Gulf of Mexico, Mexico added considerable marine area to its EEZ, larger in area than Mexico’s land mass territory, estimated to be 1,972,550 km. (some 761,600 square miles). Robert W. Smith, supra note 69 at 397. Ibid. at 396–397. See also Mark B. Feldman and David Colson. The Maritime Boundaries of the United States, 75 AJIL (1981) at 730. From Mexico’s perspective, see César Sepúlveda. La Frontera Norte de México 1762–1975 (Mexico’s Northern Frontier). Porrúa, México (1976); and Sobarzo el al., Maritime Spaces, supra note 41 at 57–65 and 165–184.

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a historical background the presence of the Treaty of Guadalupe Hidalgo of 1848.73 Evidently, the universal recognition of the exclusive economic zone as codified in the 1982 Convention has strongly induced many coastal States to enact domestic legislation establishing this new and vast marine space. The adoption of this space has also obliged those coastal States to establish, precisely and accurately, vis-à-vis neighboring States, the outer boundaries of the exclusive economic zone in question. Without the precise delimitation of these vast oceanic zones in compliance with the applicable rules of international law, and without the required domestic mechanisms for the lawful enforcement of said boundaries against third States, the economic benefits expected to be derived from that vast oceanic space simply would not materialize. As history has repeatedly proven, nothing can be more costly – diplomatically, politically, economically and emotionally – than having incomplete or imprecise boundaries. As suggested by Hodgson and Smith, two leading experts on these matters, “disputed areas are generally avoided . . . by petroleum companies because the costs of drilling, particularly in hostile environments such as deep waters, preclude development where rights are not assured.”74 Accordingly, these legal and technical questions have led to the development of what until recently was reputed to be an obscure and arcane technical area, i.e., maritime delimitation. With the recent proliferation of vast oceanic spaces on a global scale, the high demand for oil by all nations, and the increasing and uncontrolled prices of this hydrocarbon, it is only logical to see the emergence of a new area of international law: what may be called the law of maritime delimitation. In recent years, maritime boundary disputes have become so frequent, having grown in legal substance and technical complexity, that about half the number of cases decided by the International Court of Justice (ICJ) involve these delicate delimitation issues.75

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See Sepúlveda, supra note 81 at 67, 57–69. See also Treaty Series No. 207, 9 Stat. 922–43 and supra note 106 in Chapter One. See Robert D. Hodgson and Robert W. Smith. Boundary Issues Created by Extended National Marine Jurisdiction, Geographical Review, Vol. 69, No. 4 (October 1979) at 423, 423–433. Given the novelty, technical nature and proliferation of these law of the sea disputes, and the lack of these specialists in developing countries, it would seem practical for interested international organizations to consider organizing training programs to professionally prepare lawyers, engineers and geographers in the intricacies of maritime delimitation questions relaying on the study, analysis and discussion of the cases resolved on these questions by the ICJ and by arbitration tribunals. Another legal area apt for these training programs may also be law of the sea questions associated with the legal regime of marine scientific research. In this regard, the Rhodes “cademy of Oceans Law and Policy organized annually since 1996 by the Center for Oceans Law and Policy of the University of Virginia constitutes a most loudable

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As may be recalled, the international law practice on the delimitation of maritime boundaries dates back to the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone76 and that on the Continental Shelf,77 as reflected in the language of Articles 12 and 24, and Article 6, respectively. This technical language was partially taken from a technical report produced by an informal group of experts who assisted the U.N. International Law Commission in the preparation of the final draft containing the articles of the four resulting final conventions.78 The arrival and establishment of the exclusive economic zone allowed the United States to become a leading country in legal and technical matters regarding maritime delimitation, given the unusually large number of bilateral treaties this State had to negotiate with 25 countries, including Mexico.79 It may be of interest to point out that, as a matter of policy, the United States prior to and throughout the sessions of UNCLOS III expressed its interest in “stemming the tide” of unilateral maritime claims by States that may go “contrary to the spirit of the conference and adversely affect the delicate diplomatic negotiations conducted at that forum regarding law of the sea matters,”80 including the 200 nautical mile exclusive economic zone.81 However, contrary

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effort. This Academy, supported by the Aegean Institute of the Law of the Sea and Maritime Law (Rhodes, Greece), and other prestigious academic and scientific institutions from Iceland, Germany and the Netherlands, educates and trains students from Africa, Asia, Latin America and the European Union on law of the sea topics by outstanding international specialists and law faculty from around the world. For further information go to www.virginia.edu/colp. Adopted by the 1958 LOS Conference on April 29, 1958 (UN Doc. A/CONF.13/L.52), 15 UST 1606, TIAS No. 5639, 516 UNTS 205. Both the United States and Mexico became parties to this Convention. Adopted also on April 29, 1958 (UN Doc. A/CONF.13/L.55). 15 UST 471, TIAS No. 5578, 499 UNTS 311. Both the United States and Mexico became parties to this Convention. See Hodgson and Smith, supra note 74 at 424. The delimitation rules apply in general terms to “States who are opposite or adjacent to each other” and rely on an “equidistant median line . . .failing agreement between them to the contrary.” See the Report of the International Law Commission, 8 U.N. GAOR, Supp. (No, 5), UN Doc. A.3159 (1956). Quoted in M. Whiteman, Digest of International Law, Vol. 4 (1965) at 907. Articles 12 and 14 of the ILC Draft became Articles 12 and 24 of the 1958 U.N. Territorial Sea Convention. Feldman and Colson, supra note 72 at 734. This language was used in the official statement made by the U.S. Department of State when Mexico announced in late 1975 that it was going to establish a 200 n.m. EEZ; see supra note 50 for the source of this language from an article published in the Mexico City newspaper Excelsior on November 7, 1975. See, inter alia, the speech of Secretary of State Kissinger before the American Bar Association at Montreal, Aug. 11, 1975; President Nixon’s report to Congress of Feb. 18, 1970, U.S. Foreign Policy for the 1970’s; and the statement by Under-Secretary of State Richardson before the Special Committee on the Outer Continental Shelf of the U.S. Senate Committee on Interior and Insular Affairs on May 27, 1970.

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to this publicly announced policy, it was the United States which proceeded unilaterally in establishing a Fishery Conservation and Management Act of 200 nautical miles in breadth in March of 1977.82 The establishment of this zone took place just a few months after Mexico adopted its 200 nautical mile exclusive economic zone on July 31, 1976. Ironically, the United States was the only country that protested diplomatically Mexico’s “unilateral maritime act” lamenting that its neighbor “did not wait for a multilateral accord.”83 The demarcation of international boundaries constitutes a most delicate question in international law principally because these acts involve the emotionally charged and somewhat antiquated notion of sovereignty. Whereas land boundaries pose sensitive questions with a long technical and legal history dating back centuries, maritime limits are not only relatively recent but they also present intriguing challenges due to the unique problems associated with that fluid and opaque medium which is the marine environment (whether the delimitation takes place in the water column, the submarine seabed and ocean floor or the subsoil thereof ). The elaborate way in which the United States proceeded to formulate and coordinate a unified domestic policy among the numerous agencies involved in the establishment, delimitation and enforcement of its 200 nautical mile U.S. fisheries jurisdiction in 1976, “in a manner consistent with its political, security and economic interests and justifiable under international law,”84 was truly remarkable. These fundamental policy guidelines merit highlighting. They include: a) the direct involvement of the Department of State as chair of the interagency group formed with representatives of the Departments of Defense, Justice, Interior, the Federal Energy Agency, the Coast Guard, and the National Oceanographic and Atmospheric Administration of the Department of Commerce, technically

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Fishery Conservation and Management Act, 16 U.S.C. ‘1801 et seq. The limits of this zone were set forth and publicly announced in the Federal Register on March 7, 1977. 42 Fed. Reg. 12,937–40 (1977). The “enforcement of the 200-nautical mile fisheries jurisdiction” began on March 1, 1977, 16 U.S.C. ‘1811. Feldman and Colson report that “[T]he unilateral extension of the U.S. fisheries jurisdiction beyond 12 n.m.” took place because “pressures were irresistible to protect United States coastal fisheries from overexploitation by foreign vessels;” see Feldman and Colson, supra note 72 at 737. For a discussion of this Act, See Jorge A. Vargas. Mexico y la Zona de Pesca de Estados Unidos. UNAM, México (1979). See supra note 50 for the cite of Excelsior in which the United States censured Mexico for its unilateralism. For a lucid discussion regarding these important questions, see Feldman and Colson, supra note 72 at 736–741.

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supported by the Office of The Geographer, the Bureau of Oceans, International Environmental and Scientific Affairs;85 b) Diplomatically, the fact that the U.S. engaged in consultations with neighboring countries “where the possibility of law enforcement problems due to overlapping claims seemed most acute,” was a resounding success. This strategy no doubt contributed to easing the way to reaching the corresponding agreements or “informal understandings” with some countries, including Mexico.86 c) The policy to give “prior notification of the limits” to which the United States would enforce its 200-nautical mile fisheries jurisdiction, beginning March 1, 1977, was not only a valid legal measure from a domestic angle but was also a reasonable strategy from the international law viewpoint.87 In the U.S. notification, it was asserted that the limits of the U.S. fishery conservation zone were intended to be “without prejudice to any negotiations with these countries or to any positions which may have been or may be adopted respecting the limits of maritime jurisdiction in such areas.”88 In addition, said fishery limits were adopted “pending the establishment of permanent maritime boundaries by mutual agreement.”89 d) It has been pointed out by Feldman and Colson that the U.S. “Notice” was predicated on two legal propositions: first, that pursuant to the two above mentioned 1958 Geneva Conventions, maritime boundaries between adjacent and opposite States “are to be determined by agreement in accordance with equitable principles,” and that each State “has an obligation to negotiate in good faith with its neighbors with a view to reaching agreement on the boundary between their respective jurisdictions.”90 And second, in consonance with U.S. constitutional law and practice, it corresponds to the President of the United States “the authority to determine, in consultation with Congress, the boundary position to be espoused by the United States in international negotiations 85

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Ibid. at 736–737. Mexico adopted a similar inter-institutional approach of different agencies of its Federal Public Administration (including a couple of academic institutions) for the delimitation of its EEZ. Mexico was one of those countries. Mexico and the United States first entered into an exchange of notes dated November 26, 1976 establishing, with a provisional character, the EEZ maritime boundaries between both countries between the12 n.m. and the 200 n.m. in the Gulf of Mexico and in the Pacific Ocean. See Feldman and Colson, Ibid. at 740. Mexico’s decree establishing the outer boundary of the 200-nautical mile exclusive economic zone was published in the Diario Oficial on June 7, 1976; however, no prior notification was given to any of the neighboring countries whose maritime zones overlapped with Mexico’s EEZ. Feldman and Colson, supra note 72 at 737. Ibid. Id. at 737–738. The duty to negotiate in good faith, according to these authors, flows from the principle of sovereign equality of States and their obligation to settle international disputes by peaceful means, as required by the U.N. Charter, id. at 738.

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and to be applied by it pending entry into force of a permanent boundary treaty.”91 2. Mexico Closely Adhered to the Informal Single Negotiating Text (ISNT) in Establishing Its 200-Nautical Mile Exclusive Economic Zone Mexico was fully aware that its official unilateral act of establishing an exclusive economic zone of 200 nautical miles in 1976 Bone of the very first maritime zones of this kind in the world – was going to be subject to very close scrutiny by the international community at large but in particular by its neighboring countries: Cuba, the United States of America, Honduras, Guatemala and Belize, considering that Mexico’s exclusive economic zone would overlap with the marine spaces these countries had in the Pacific Ocean, the Gulf of Mexico and the Caribbean Sea, that under international law required the respective maritime delimitation. Accordingly, Mexico was meticulous in complying with each and every legal and technical question to be covered both domestically and internationally. At the domestic level, in compliance with the applicable constitutional, administrative and other Mexican law provisions, Mexico followed these steps: I. It established a 200-nautical mile exclusive economic zone by means of a constitutional amendment, adding a new paragraph eight to Article 27 of its Political Constitution;92 II. It proceeded to enact a Reglamentary Act (Ley Reglamentaria), composed by nine articles, whose purpose was to detail the legal substance and other international and resource management of said zone;93 91

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Id. at 738. In Mexico, the authority of the President in the area of international boundaries derives from his explicit and broad powers regarding the conduct of foreign affairs and the ability to enter into international treaties and conventions, pursuant to paragraph X of Article 89 of Mexico’s Political Constitution. With respect to treaties and conventions, the President has the power “to terminate, denounce, suspend, modify, amend, withdraw reservations and formulate interpretive declarations,” subject to the “approval” of the Mexican Senate, as prescribed by Article 76, para. I, of same Constitution. Decree whereby an addition is made to Article 27 of the Political Constitution of the United Mexican States to establish an Exclusive economic zone situated outside the Territorial Sea, published in the Diario Oficial of February 6, 1976. Pursuant to the sole “Transitory” article, this decree was “to enter into force 120 days after its publication,” i.e., on July 31, 1976, due to a Vacatio legis to officially postpone all matters related to the exclusive economic zone after UNCLOS III made public its Revised Single Negotiating Text (RSNT) at the end of its fourth session in Geneva. The Informal Single Negotiating Text (ISNT) is dated May 7, 1975 and the RSNT is dated a year later, i.e., May 6, 1976. For a discussion of this constitutional addition, see in this chapter supra notes 17–25 and the accompanying texts. Reglamentary Act of the Eighth Paragraph of Article 27 of the Political Constitution relative to the Exclusive Economic Zone, published in the Diario Oficial of February 13, 1976. Pursuant

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III. It published a decree that established the outer boundary of its 200-nautical exclusive economic zone by means of providing precise geographical coordinates of latitude and longitude delimiting said zone in the Pacific Ocean, the Gulf of Mexico and the Caribbean Sea. This delimitation decree was published in the Diario Oficial de la Federación;94 and IV. A nautical chart depicting Mexico’s exclusive economic zone and its outer limit was subsequently published by the Secretariat of the Navy.95 The Informal Single Negotiating Text (ISNT) became Mexico’s major international law source that provided the essential components that defined up to that moment both the legal structure and the substance of the exclusive economic zone.96 At that time, Mexico considered that this marine space had already acquired the opinio juris as well as the required support by a large number of States to be able to legally coalesce and become a new rule of customary international law. In the rationale of the legislative bill proposing a Reglamentary Act relative to the exclusive economic zone, it is pointed out that “the guidelines of the Negotiating Texts that were produced during the last session of UNCLOS III

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to its Second “Transitory” article, this federal statute entered into force simultaneously with the Decree adding a paragraph eight to Article 27 of the Political Constitution, namely, on July 31, 1976. For a discussion of this Act, see in this chapter supra notes 26–36 and the accompanying texts. Decree establishing the Outer Boundary of the Exclusive economic zone of Mexico, published in the Diario Oficial of June 7, 1976. (hereinafter “Delimitation decree.”) Its sole “Transitory” article prescribed that “this Decree shall enter into force on July 31, 1976.” Therefore, this is the official date when Mexico commenced the enforcement of its exclusive economic zone both internally and internationally. For comparison purposes, it should be recalled that the 200-nautical mile U.S. Fishery Conservation and Management Act became effective March 1, 1977, 16 U.S.C.’’ 1811–12. Pursuant to Article 2 of this delimitation decree, the Secretariat of the Navy (Secretaría de Marina) was commissioned to publish “the nautical charts in which the outer boundary of the Exclusive economic zone is depicted, to be traced based on the coordinates prescribed by the preceding Article.” The second “Transitory” article, “The Secretariats of the Navy and Industry and Commerce shall take the necessary measures, within their respective powers, to duly enforce the provisions of the Reglamentary Act of paragraph eight of Article 27 of the Constitution, starting on the date when this decree enters into force,” i.e., on July 31, 1976. For a discussion of this decree, see in this chapter supra notes 37–44 and the accompanying texts. For some of the legal parallelisms between the ISNT and Mexico’s domestic legislation on the exclusive economic zone, see in this chapter supra notes 39–40 and accompanying texts. It should be noted that, in addition to the ISNT, Mexico was fortunate enough to also consult the Revised Single Negotiating Text (U.N. Doc. A/CONF.62/WP.8/Rev.1/Part II, RSNT) given the fact that this more legally advanced document was published on May 6, 1976, just a month before Mexico published its EEZ Delimitation decree on D.O. of June 7, 1976.

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as the basis for negotiation, were closely followed,” underlining that “the substantive questions chosen by the Chairmen [of the three main Committees] are considered to be the most likely to generate a general agreement.”97 Mexico’s delimitation decree clearly intended to be in perfect symmetry with specific provisions of the ISNT (and similar provisions subsequently reflected in the Revised Single Negotiating Text). These provisions were Article 61, Article 63 and Article 132. Article 61.5 of the ISNT prescribed: Article 61 .......... 5. In delimiting the boundaries of the exclusive economic zone, any lines which are drawn in accordance with the provisions of this article should be defined with reference to charts and geographical features as they exist at a particular date, and reference should be made to fixed permanent identifiable points on the land.98

A year later, at the end of the fourth session of UNCLOS III, the Revised Single Negotiating Text (RSNT, published on May 6, 1976), the above transcribed paragraph 5 had been transformed into a more elaborate and technical Article 63, which read: Article 63: Charts and Geographical Co-ordinates 1. Subject to this Chapter, the outer limit lines of the exclusive economic zone and the lines of delimitation drawn in accordance with article 62 shall be shown on charts of a scale, or scales adequate for determining them. Where appropriate, lists of geographical coordinates of points, specifying the geodetic datum, may be substituted for such outer limit line or lines of delimitation. 2. The coastal State shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.99

Mexico’s Reglamentary Act of the Eighth Paragraph of Article 27 of the Political Constitution relative to the Exclusive economic zone, prescribed that the outer boundary of that zone consisted of “a line whose points all are at a

97

98

99

Taken from Székely, supra note 2 at 151; reproduced also in Vargas, Mexico’s EEZ, supra note 17 at 51. Informal Single Negotiating Text, U.N. Doc. A/CONF.62/WP.8, Part II (7 May 1975). This document is reproduced at Third U.N. Conference on the Law of the Sea: Documents, Compiled and Edited by R. Platzöder. Vol. I (1982) at 30. Article 61 of the ISNT evolved into Article 63 of the RSNT and eventually into Article 75 of the 1982 LOS Convention. Revised Single Negotiating Text, U.N. Doc: A/CONF.62/WP.8/Rev.1/Part II (6 May 1976). Reproduced also in Platzöder, Vol. I, Ibid. at 216. Article 63 of the RSNT eventually turned into Article 75 of the 1982 LOS Convention. Save for minor non-substantive differences, the language of both articles is identical. Mexico’s Secretariat of the Navy (Secretaría de Marina). published Nautical Chart S.M. 001: Zona Económica Exclusiva. Dirección General de Investigación y Desarrollo. Sondeos en metros, Escala 1:3,700,000. Hidrografía y Meteorología, Mexico (2005).

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distance of 200 nautical miles from the baseline from which the width of the territorial sea is measured.”100 Pursuant to the second paragraph of Article 18 of the General Act of National Assets, as amended in 1969, “the width of the territorial sea is measured from the low-water line (Línea de bajamar) along the coasts and islands that form a part of the national territory, pursuant to the Constitution, the laws that emanate therefrom and international law.”101 In those cases where Mexico’s 200 nautical mile width may overlap with the economic zones of other States, the decree prescribed that “the delimitation shall be done in the measure that may be necessary through agreements with those States.” (Art. 2, Reglamentary Act). In order for the Reglamentary Act to produce its effects, the Delimitation decree established that it was “necessary for navigators and the general public to take cognizance of the exact outer boundary of the exclusive economic zone,” adding that this requirement “can only be satisfied with the publication of the provisions of general observance necessary to determine, through geographic coordinates, the outer boundary of the exclusive economic zone of Mexico.”102 Accordingly, the substantive part of the Delimitation decree consists of two articles: Article 1 establishes the outer limit of Mexico’s exclusive economic zone as formed by a series of arcs uniting 213 points whose geographical coordinates of latitude and longitude in the Pacific Ocean (150 points), the Gulf of Mexico and the Caribbean Sea (63 points for both). Article 2 provides that the Secretariat of the Navy is to publish the corresponding nautical charts (Cartas marinas) depicting the outer limit of the zone according to said coordinates. Under Mexican law, the enforcement of this decree corresponds to the Secretariat of the Navy (Secretaría de Marina). 100

101

102

Rationales (Considerandos) of the Reglamentary Act, D.O. of June 7, 1976 (effective July 31, 1976 per its First Transitory Article). General Act of National Assets (Ley General de Bienes Nacionales), published in the Diario Oficial of January 30, 1969, originally established a nine nautical mile for Mexico’s territorial sea. However, this width was enlarged to twelve nautical miles by a decree amending paras. 1 and 2 of the second part of Article 18, published in the D.O. of December 26, 1969 (effective the following day). This amending decree also prescribed the low water tide mark (Línea de bajamar) as the baseline from which the width of the territorial sea is to be measured (save for the special application of the straight baseline method “in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity.”). The language of this paragraph is reproduced verbatim from Article 4, para. 1, of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone to which Mexico is a party. International law recognizes the right of the coastal State to draw a straight baseline across the mouth of a river or a bay that may serve as the baseline for measuring the breadth of the territorial sea. See, for example, Article 7 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, and Articles 9 and 10 of the 1982 U.N. Convention on the Law of the Sea. Introductory paragraphs, Delimitation decree, supra note 103 at 1.

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Pursuant to Article 30 of Mexico’s Organic Act of the Federal Public Administration,103 the Secretariat of the Navy is empowered to enforce matters pertaining to the surveillance and monitoring of all marine spaces, including: 1. Exercise Mexico’s sovereignty over its territorial sea, air space and coastlines; 2. Conduct surveillance over the Mexican marine spaces, without prejudice to the attributions of other federal agencies; 3. Exercise jurisdictions conferred on it by the applicable laws and international agreements to which Mexico is a party, in the Contiguous Zone and in the Exclusive economic zone; 4. Guarantee the legal regime in the Mexican marine zones, protect maritime traffic and safeguard human life in the sea, without prejudice of the attributions of other federal agencies; 5. Perform maritime police functions to maintain law and order in the Mexican marine zones; 6. Conduct hydrographic works in coastlines, islands, ports and navigable ways, and to organize the archives of nautical charts and relative statistical data; 7. Intervene in the granting of marine scientific research permits for foreign scientific or international expeditions or explorations in Mexican waters; 8. Organize and provide naval sanitary services; 9. Prepare the archives on national oceanographic information; 10. Enter into agreements within the scope of its attributions with other national or foreign agencies or institutions pursuant to the terms of international treaties and the applicable Mexican legislation; 11. Act to protect the national defense and security within the scope of its jurisdiction and to coordinate with the competent national authorities the control of maritime traffic when the circumstances so demand, in accordance with the international legal instruments (sic) and the national legislation; 12. Intervene, within the scope of its jurisdiction, in the protection and conservation of the marine environment, without prejudice of the attributions of other agencies; and 13. Inspect, patrol and conduct surveillance and monitoring activities to preserve Mexico’s Natural Protected Areas in coordination with the competent authorities and in accordance with the applicable laws.

Mexico’s delimitation decree (and its publication in the Diario Oficial de la Federación) fully corresponds in format and substance with international practice on these matters. In this respect, Mexico’s official publication of the outer limits of its Exclusive economic zone corresponds to the establishment and publication of the U. S. Fisheries Conservation and Management Act of 1976, published in the Federal Register on March 7, 1977.104

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Organic Act of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal ), published in the Diario Oficial of December 29, 1976 as amended by D.O. of November 28, 2008. 42 Fed. Reg. 12,937–40 (1977). Successive notices corrected errors or made modifications to the original notice. Id. at 24, 134; 43 id. at 8606 (1978); 44 id. at 74,956 (1979).

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Article 61.1 of the ISNT (which corresponds to Article 62.1 of the RSNT) was another Article closely followed by Mexico, especially for the negotiation of the respective bilateral agreements with neighboring countries. This article reads: Article 61.1 The delimitation of the exclusive economic zone between adjacent or opposite States shall be effected by agreement in accordance with equitable principles, employing, where appropriate, the median or equidistant line, and taking account of all the relevant circumstances.105

The language of this article, as discussed earlier, is taken from Article 12 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone106 (similar to Article 6 of the 1958 Geneva Convention on the Continental Shelf ).107 It seems evident that the tenor of Article 61.1 of the ISNT (identical to Article 62.1 of the RSNT) induced Mexico to initiate contacts or consultations with neighboring countries whose eventual establishment of a 200-nautical mile zone may overlap with Mexico’s exclusive economic zone,108 in particular Cuba, the United States, Guatemala, Belize and Honduras. Another article from the ISNT to which Mexico gave special attention was Article 132 (equivalent to Article 128 of the RSNT). This ISNT article prescribes: Article 132 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of the present Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.109

For maritime delimitation purposes, the importance of an island cannot be overestimated when one considers that the smallest of islands in the middle of a vast ocean can establish around it an exclusive economic zone embracing some 125,000 square nautical miles!

105 106

107

108 109

ISNT, supra note 27 at 30. Convention on the Territorial Sea and the Contiguous Zone, done April 29, 1958, 15 UST 1601, TIAS No. 5639, 516 UNTS 205. See supra note 76 and the accompanying text. Convention on the Continental Shelf, done April 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311. See supra note 77 and the accompanying text. See Feldman and Colson, supra note 72 at 740; and Székely, supra note 2 at 157–158. ISNT, supra note 27 at 39. The language of Article 128 of the RSNT is identical to that of the ISNT.

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Thus, the importance that an island possesses from the law of the sea viewpoint for gaining exclusive access to vast expanses of the ocean where natural resources, both renewable and non-renewable, may be abundant. For example, an island situated at the outer edge of the exclusive economic zone can be validly used by that coastal states as a base point to draw another 200 n.m. exclusive economic zone around it, thus virtually duplicating the maritime area of the EEZ. This is precisely what Mexico did in the Pacific Ocean, using Isla Clarion (the most westerly situated island of the Archipielago Revillagigedo), pursuant to what is prescribed by Article 121, para. 2, of the 1982 LOS Convention.110 3. The Use of Islands to Delimit Mexico’s Exclusive Economic Zone In the rationale explaining the substance and importance of the Reglamentary Act relative to the exclusive economic zone, it was underlined that this federal Act established the rules followed to delimit the new zone; it recognized that this zone cannot reach a 200 n.m. in front of the Yucatan peninsula because of the proximity of other States that also have similar zones; and it reiterated that it adhered to the ISNT in explicitly recognizing that some islands have the right to possess an exclusive economic zone of their own as well as the respective continental shelf.111 Prior to establishing the outer limits of its exclusive economic zone, and realizing that it was going to be necessary for Mexico to negotiate bilateral maritime boundaries with all its neighboring countries, the government of that country created a special interagency commission to conduct an in situ visit and inspection to each of Mexico’s islands likely to be involved in the delimitation process. The commission was chaired by the Secretariat of Foreign Affairs (SRE), with representatives from the Navy, Defense, Industry and Commerce (today Secretariat of the Economy), Programming and Budget, including some scientific and technical personnel from Mexico’s National Autonomous University (UNAM). The commission’s specific objective was to ascertain the physical and geographical characteristics of the pertinent Mexican islands to differentiate them from other marine promontories, such as rocks, cays, low-tide elevations,

110

111

Article 121, para. 2, of the 1982 LOS Convention reads: “Except as provided for in the paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory (emphasis added ). See also Louis B. Sohn et al. Law of the Sea in a Nutshell (2nd edition, 2010) at 113–116. Taken from Vargas, Mexico’s EEZ, supra note 17, the Rationale was dated November 4, 1975; for the corresponding language see supra note 19 at 53–54, 43–58. See Article 132.2 of the ISNT (identical to Art. 128.2 of the RSNT).

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etc.112 that may not be validly used as base points for international maritime delimitation purposes pursuant to the ISNT and international law. a. Mexican Islands in the Gulf of Mexico In this gulf, Mexico took advantage of two groups of islands: Arrecife Alacrán and Cayo Arenas, offshore the Yucatán peninsula, as base points to draw its 200-nautical mile exclusive economic zone vis-à-vis the United States, considering the considerable territorial benefits to be obtained by Mexico in a water body abundant in fish but especially vast oil deposits. Arrecife Alacrán or Alacranes is located some seventy nautical miles from the Port of Progreso, in the State of Campeche, located at 22°23'06" latitude and 89°41'45" longitude.113 This Arrecife is formed by a group of smaller reefs that pose serious navigation hazards in that area and is shaped as a gigantic crescent moon covering some 40 sq. miles when above the sea level, with 10 miles in length and some convexity towards the NE, according to Manuel Muñoz Lumbier.114 Alacranes is formed by five islands: i) Pérez, ii) Desterrada, iii) Pájaros, iv) Desertora and v) Isla Chica. Pérez is a large islet at the southern tip of the reef, located at 22°23'36" latitude and 89°41'45" longitude. A small lighthouse was built on this island and the area is described as “extraordinarily rich in fish and lobster.”115 Isla Desterrada, also used as a base point for the maritime delimitation in the Gulf, is described as having 12 feet above sea level and is located at 22°32' latitude and 89°47' longitude, some 75 miles from the Port of Progreso (Nautical chart of the Secretariat of Marine No. 900).116

112

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114

115 116

The United States and Mexico engaged in diplomatic negotiations to reach an agreement regarding the outer boundary of their respective 200 n.m. zones in 1976. These negotiations resulted in the signing of an international agreement between Mexico and the United States effective through an exchange of notes (for a provisional agreement dated November 24, 1976). This provisional agreement was elevated to the category of a full fledged bilateral treaty on maritime boundaries signed on May 4, 1978. For additional information see the official document Three Treaties Establishing Maritime Boundaries, infra note 138 passim. See Cartografía Histórica de las Islas Mexicanas (Historical Cartography of the Mexican Islands). Francisco González Gómez. Islas del Norponiente de Yucatán (Norwestern Islands of Yucatán). Secretaría de Gobernación, México (1992) at 46; Islas Mexicanas. Régimen Jurídico y Catálogo (Mexican Islands. Legal Regime and Catalogue). Gobernación/Marina (1987) at 153; and Régimen Jurídico e Inventario de Islas, Cayos y Arrecifes del Territorio Nacional 1981. (Legal Regime and Inventory of the Islands, Cays and Reefs of the National Territory). Gobernación, México at 81. See Manuel Muñoz Lumbier. Islas Mexicanas (Mexican Islands). SEP, México (1946) at 108–109. Ibid. See Mexican Islands. Legal Regime and Catalogue, supra note 113 at 71. Isla Desterrada is not included in the work by Muñoz Lumbier but is cited in Régimen Jurídico de las Islas Mexicanas y su Catálogo, Marina (1979) at 48.

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Cayo Arenas is described by Muñoz Lumbier as an “islet, rocks and a cay” located at 22°08'30" latitude and 91°24' longitude West of Greenwich in a 30 fathom bank offshore Yucatán. In its Southeastern tip, this Cayo has the Arenas Islet (Isleta de Arenas) in a coral bank separated from the principal cay but with a coral connection.117 Cayo Arcas is located offshore the Campeche coast at 20°13' latitude and 91°58' longitude in one of richest PEMEX’s oil fields in the Sonda de Campeche, some eighty miles NW of Punta Morro.118 Although Cayo Arcas was not used by Mexico for delimitation purposes regarding its exclusive economic zone, from a historical viewpoint this promontory is of some interest because it was involved in a diplomatic incident with the United States regarding its ownership. In the late 19th century, the “islet, rocks and a cay,” of Cayo Arenas were occupied by a group of American citizens representing several U.S. companies who took possession of them and started to commercially exploit and transport back to the United States the rich guano deposits extracted from these islands. Mexico intervened to stop these illegal activities and a diplomatic incident ensued between the two countries.119 In the State of the Union Report of Porfirio Díaz, President of Mexico, on September 1, 1902, he informed the nation that the United States and Mexico had reached an amicable agreement regarding the negotiations over those islands and rocks, initiated in 1886, with the recognition by the United States that . . . the islands of Arenas, Pérez, Chica, Pájaros, Cayo Arenas y Triángulos del Oeste, situated in the Gulf of Mexico in front of the Yucatán peninsula . . . after conclusive evidence submitted by Mexico that said islands are part of the [Mexican] territory, the Washington government, proceeding with full justification, declared that the above mentioned islands shall not be considered in the future as the property of the United States. This resolution was circulated by the Department of the Treasury on November 21, 1901.120

117

118

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Id. at 166–167. This author provides a description of the five major islands that form the Arrecife Alacranes. For the geographical location of these islands, see Mexican Islands. Legal Regime and Catalogue, supra note 113 at 71. See Régimen Jurídico de las Islas Mexicanas y su Catálogo (Legal Regime of the Mexican Islands and Their Catalogue). Marina (1979) at 47. Today, in this area PEMEX has three offshore oil platforms and numerous oil tanks with a capacity of 5.2 million barrels. See Jorge A. Vargas. Mexico’s Legal Regime over Its Marine Spaces: A Proposal for the Delimitation of the Continental Shelf in the Deepest Part of the Gulf of Mexico, 26 Inter-American Law Review (Winter 1994–95) at 207–208. See also Cartografía, supra note 113 at 60 and 66. Cartografía, supra note 113 at 66 (emphasis added ).

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b. Mexican Islands in the Pacific Ocean and the Caribbean Sea Mexico relied on the use of four islands in the Pacific Ocean to draw the outer limits of its 200-nautical mile exclusive economic zone. In order of importance, those islands were Clarión and Socorro, Guadalupe and Coronados. Clarión is an island of singular importance for several reasons. Jointly with the islands of Socorro, Roca Partida and San Benedicto, they form the Revillagigedo Archipelago, located at 18°22' N., 114°44' W. In the United States, especially in southern California, this Archipelago is very well known by the San Diego sportfishing industry for its rich fishing grounds of yellowfin tuna, swordfish, dorado, albacore, pampano, etc. Clarion is found at the west of the archipelago, is volcanic in origin with some vegetation and wildlife. Its length reaches some 5.25 miles in the eastern-western direction with a width of 2 miles.121 Isla Clarión is situated some 400 nautical miles from continental Mexico and was used as a basepoint to draw around it a 200-nautical mile exclusive economic zone. Therefore, the outer limit of this zone in its eastern side reaches out some 600 nautical miles from the Mexican continental coastline. In addition, Clarión is located in one of the richest mineral areas of the seabed and ocean floor in the Pacific Ocean, forming a part of the Clarion Trench, with abundant submarine ferromanganese deposits.122 In combination with Clarión, Isla Socorro was also used as a basepoint for the delimitation of the Mexican exclusive economic zone. Socorro is located at 18°42' N latitude and 110°57' W longitude.123 It is also of volcanic origin, arid with scarce vegetation and two miles in length. The combined marine area that resulted from drawing the exclusive economic zone from these two islands added some 33% to the total area of the Mexican exclusive economic zone in the Pacific Ocean. Isla Guadalupe is located some 140 nautical miles from the coastline of the State of Baja California, Mexico, and has a length of some 20 miles in the NS direction with a maximum width of seven miles. It is also of a volcanic origin, crisscrossed by a chain of mountains with its highest altitude estimated at 1,297 meters and it is surrounded by dangerous rocky cliffs. A small detachment of the Mexican Navy is permanently located there.124 The use of Guadalupe Island

121 122

123 124

Data taken from Mexican Islands. Legal Regime and Catalogue (1987), supra note 113 at 23. See Surface Distribution of Ferromanganese Deposits on the Ocean Floor, Map No. 2696; Ferromanganese Nodules in the Pacific Ocean, Horn and Delach, 1972, IDOE/NSF, Technical Report No. 3; and D.R. Horn et al., Geography of Ferromanganese Nodule Deposits, Columbia University, Jan. 20–22, 1972. Ibid. at 23. Data taken from Legal Regime of the Mexican Islands and Their Catalogue (1979), supra note 121 at 56. See also Mexican Islands. Legal Regime and Catalogue (1987) at 23.

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to delimit the outer boundary of Mexico’s 200-nautical mile exclusive economic zone considerably expands the area of this marine space in the Pacific Ocean. The use of Islas Coronados, some seven nautical miles offshore the City of Tijuana in the Pacific Ocean, and situated very close to the existing international boundary of the 12 nautical mile territorial sea between both countries based on the 1970 Treaty, was counterbalanced by the use by the United States of San Clemente Island, the most southern one of the California Channel Islands. According to Muñoz Lumbier, Islas Coronados are a group of sterile islets located seven nautical miles from the coastline of the State of Baja California, found at 32°23' N latitude and 34°30' N latitude some seventeen nautical miles from the San Diego Point Loma lighthouse.125 In the Caribbean Sea, in the delimitation of Mexico’s exclusive economic zone with the United States, Cuba, Guatemala, Honduras and Belize, certain islands – in particular Cozumel and Cancún – played an important role. Cozumel is located at 20°01'20" N, 86°57'12" W. Stretching some 24 miles in the NE direction, with an average width of eight miles at a distance of some nine nautical miles from the coastline of the State of Quintana Roo. It is populated and its largest town is San Miguel.126 In the Caribbean Sea, Mexico used the following islands as basepoints to delimit the outer limit of its exclusive economic zone with Cuba: Isla Cozumel, Isla Mujeres, Isla Contoy, Cabo Catoche y Arrecife Alacranes; and Banco Chinchorro and Isla Cozumel with Honduras. c. Maritime Delimitation Negotiations with the United States The negotiations between Mexico and the United States to agree on the outer boundary of Mexico’s exclusive economic zone of 200-nautical miles in the Gulf of Mexico vis-à-vis the outer boundary of the U.S. Fishery Conservation and Management Act jurisdiction, also of 200 nautical miles, comprised two sessions (one in New York and the other in Mexico City) that took place in April of 1976.127

125

126

127

See Muñoz Lumbier, supra note 122 at 9. The most recent catalogue (Mexican Islands. Legal Regime and Catalogue, 1987) classifies them as Isla Coronado Norte, Isla Coronado Centro and Isla Coronado Sur (and an Islet known as Pilón de Azúcar); Isla Coronado Norte is located at 32°26' N latitude and 117°18' W longitude, Id. at 29. Data taken from Legal Regime of the Mexican Islands and Their Catalogue (1979) at 48. See also Mexican Islands. Legal Regime and Catalogue (1987), supra note 118 at 72. This information on the negotiations is taken from Székely. A Commentary with the Mexican View on the Problem of Maritime Boundaries in U.S.-Mexican Relations, 22 Natural Resources Journal (1982) at 156, 155–159. At that time, the United States was in the process of preparing the implementation of its Fishery Conservation and Management Act zone of 200 nautical miles, to become effective March 1, 1977. Mexico’s exclusive economic

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It was immediately agreed that both countries would use the Informal Single Negotiating Text (ISNT) as the legal basis for the negotiations. Articles 61 and 132 of this Text received special attention: the first article prescribed the use of “equitable principles” for the delimitation of adjacent or opposite 200 mile zones, to employ “the median or equidistance line, and to take account of all relevant circumstances.” Article 132 established the regime of islands, i.e., islands had the right to a territorial sea, contiguous zone, exclusive economic zone and continental shelf (Para. 1), excepting “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” (Para. 3).128 During the second session, the U.S. delegation presented the first proposal of a chart depicting in a drawing a dividing line between the two 200 nautical mile zones that was “merely confirmed by Mexico.” Székely adds that the U.S. side accepted the delimitation of the Mexican exclusive economic zone from certain islands in the Gulf of Mexico (not rocks which cannot sustain human habitation or economic life of their own), just as much as the United States itself had delimited its 200-mile zone from certain islands both in the Gulf and in the Pacific. In both cases, there are islands which are not inhabited or which do not have an economic life of their own, but which are not only capable of attaining both requirements but, also, are not subject to the regime described above anyway, simply because they are not mere rocks.129

Shortly before the beginning of the negotiations, Mexico became aware of an unfortunate mistake made by the translators of the U.N. Secretariat in charge of preparing the Spanish text of Article 132 of the ISNT, originally drafted in English. The Spanish version varied substantially from the original meaning in the English language, thus severely limiting Mexico’s options in the delimitation of its marine spaces and adversely affecting its imminent negotiations with the United States. In the English version, Article 132 prescribed that “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone . . .” In the Spanish text, the word “Rocks” was translated as “Islands,” which resulted in seriously adverse consequences for Mexico. As pointed out by Székely, the meaning of the two versions was completely different: under the erroneous Spanish translation, not only “rocks”

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zone of 200 nautical miles was to enter into force on July 31, 1976. See supra notes 80 and 82 and the accompanying texts. For additional information regarding islands, cays and rocks in the delimitation of the respective 200 nautical mile zones between Mexico and the United States, see Jorge A. Vargas, Mexico’s Legal Regime over Its Marine Spaces, supra note 119 at 207–215. Székely, supra note 127 at 157. Under international law there has been no precise formulation establishing a legal distinction between an island and a rock, and no international law cases by the ICJ or other international tribunals have addressed this technical question.

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but “islands” were subject to the same limiting rules, with no legal distinction between rocks and islands. In addition, the incorrect Spanish translation precluded those islands which did not have an economic life of their own – but which were capable of eventually attaining it – from having an exclusive economic zone or a continental shelf.130 Evidently, the purpose of the ISNT regarding this legal distinction between “islands” and “rocks” is to avoid that mere “rocks” have a 200-nautical mile exclusive economic zone, which would lead to disastrous consequences for navigation, fishing or other activities. As its name indicates, the purpose of the 200-nautical mile zone is eminently an economic one for the benefit of the coastal State. Mexico has a number of islands – such as Rocas Alijos, Cayo Arenas and Clarion, for example – that today may not be inhabited or may not have an economic life of their own but, because they are located in marine areas endowed with abundant mineral resources, it is anticipated that in the future, when they become economically viable for commercial exploitation activities, they may be inhabited and they may also eventually have an economic life of their own.131 Mexico would not have been able to include vast expanses of the oceans in the Gulf of Mexico, and especially in the Pacific Ocean, as part of its exclusive economic zone, if Mexico had not been able to use certain islands as base points for the maritime delimitation of this zone, a valid legal act in perfect symmetry with the ISNT, the 1982 U.N. Convention on the Law of the Sea and international law. Fortunately for Mexico, the translation mistake was corrected and both parties promptly reached a satisfactory agreement.132 It should be clarified that since the negotiations were conducted in English, and the English version of the ISNT was used for the negotiation, there were no detrimental effects produced against the interests of the United States. The resulting delimitation agreement between Mexico and the United States was effected by Exchange of Notes on November 24, 1976.133 In his diplomatic note Alfonso García Robles, Secretary of Foreign Relations, taking into account 130 131 132

133

Ibid., at 156. Ibid., at 205–210. Unfortunately, the translation mistake slipped into the first two lines of the language of Article 3 of the Reglamentary Act. The incorrect language is reproduced in Article 3 of said Act at supra 24 (see text in italics). Maritime Boundaries: Agreement effected by exchange of notes signed at Tlatelolco, Mexico, November 24, 1976 by Alfonso García Robles, Secretary of Foreign relations, and Joseph John Jova, U.S. Ambassador to Mexico. This agreement entered into force November 24, 1976. 29 U.S.T. 196, 1976 WL 166909 (U.S. Treaty), T.I.A.S. No. 8805; U.N.T.S., Vol. 1117, No. 1–1782 at 76–80. This Provisional Agreement is reproduced in Appendix Four at the end of this chapter.

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the fact that the outer limits of the Exclusive economic zone of Mexico include three segments contiguous to the U.S. Fishery Conservation Zone, proposed that “pending final determination by treaty of the maritime boundaries between the two countries off both coasts (in the Pacific Ocean and the Gulf of Mexico), the following [geodesic] lines be provisionally recognized as such boundaries.”134 In addition, the Mexican note stated that It would be understood between the two Governments that on the north side of such lines Mexico will not, and on the south side of such lines the United States will not, for any purpose, claim or exercise sovereign rights or jurisdiction over the waters or seabed and subsoil. It would be further understood that such lines will not affect or prejudge in any manner the positions of either Government with respect to the extent of internal waters, of the territorial sea, of the high seas, or of sovereign rights or jurisdiction for any other purpose.135

The history of delimitation agreements between Mexico and the United States has consistently been detrimental to Mexico, as proven by previous boundary treaties and international law cases.136 Therefore, the preceding paragraph should be read in this context. Mexico was intent in conveying to the United States that any technical or legal issues derived from the delimitation agreement just signed were not going to provide any legal basis to any of the parties to question or challenge the validity or integrity of the delimitation agreement in the future. The international law principle of Pacta sunt servanda is at the core of Mexico’s foreign policy. According to Feldman and Colson, the delimitation agreement at that time was not cast in the format of a more solemn and formal treaty, “because the parties wanted to consider whether further technical work was necessary to establish a scientifically more precise boundary.”137 Legally, an agreement 134

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The geodesic lines were determined using baselines referred to the North American Datum of 1927. This Provisional Agreement established three lines in the Pacific Ocean; three lines in the Western Gulf of Mexico; and three lines in the Eastern Gulf of Mexico. In the introductory part, the Mexican diplomatic note pointed out that “our two countries have not yet delimited their respective continental shelves beyond 12 nautical miles seaward from the respective coasts, and that the present arrangement with respect to maritime boundaries based on the Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary between, concluded in 1970, only extends the maritime boundary to 12 nautical miles.” As a result of the 1846–48 war with the United States, Mexico suffered a considerable territorial loss as documented by the Guadalupe Hidalgo Treaty of 1848. The Gadsden Purchase of 1853 took away from Mexico an additional territory that was annexed to the United States. In the international arbitration of the Chamizal Case in 1910, the United States refused to abide by the arbitral award rendered by the Arbitral Court and a special agreement was required to be negotiated between both countries until 1969 to finally resolve this case. See Sepúlveda, Mexico’s Northern Frontier, supra note 72. See Feldman and Colson, supra note 72 at 740.

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contained in an exchange of notes is less difficult to amend than a formal treaty, requiring the involvement of the Senate to obtain its advice and consent. In any event, both countries agreed later that the coordinates and the resulting lines of the three segments of the outer boundary of Mexico’s exclusive economic zone contiguous to the U.S. Fishery Conservation Zone were appropriate for a permanent and definite boundary. Accordingly, Mexico and the United States reproduced verbatim the same international boundary in a formal treaty signed on May 4, 1978.138 During the hearings at the Committee on Foreign Relations of the U.S. Senate on June 12, 1980, regarding the Senate’s advice and consent to the Mexican treaty, Mark B. Feldman, Deputy Legal Adviser at the Department of State, said in his prepared statement: a. That the 200 mile zones of the two countries overlap in three areas: (i) Off the Pacific coast and in the western gulf, where the U.S. and Mexican coasts are adjacent; (ii) In the eastern Gulf of Mexico, where Mexico’s 200 exclusive economic zone “developed from certain islands off the Yucatan peninsula, opposite the Louisiana coast overlaps the 200 mile U.S. fisheries zone; and (iii) In the central Gulf of Mexico where there is a reach of waters approximately 129 nautical miles in length where there is no fisheries boundary between the two countries. In this area, the coasts of the two countries are more than 400 nautical miles apart, so the Mexican and U.S. fisheries zones do not overlap. b. That the continental shelf boundary in that area at that time had not been drawn because the limit of the outer edge of the continental margin was a matter being discussed at UNCLOS III; and, c. That the approach followed by the United States in the treaty with Mexico was consistent with the general U.S. interest “in giving full effect to islands off the United States coast.” Mr. Feldman provided examples of the use of islands by the United States in the boundary agreements with Cuba139 and Canada.140 He concluded by pointing out that the delimitation treaty “is a further example of the efforts of the United States and Mexico to work together as equals to solve problems on the basis of mutual interest,” recommending the ratification of the agreement. 138

139 140

See Three Treaties establishing Maritime Boundaries between the United States and Mexico, Venezuela, and Cuba. Senate, Exec. Report No. 96–49, 96th Congress, 2nd Session, June 12, 1980 (Hereinafter Senate Report). Three Treaties Establishing Maritime Boundaries between the United States and Mexico, Venezuela, and Cuba. Executive Report No. 96–49, 26th Congress, 2d Session, August 5, 1980, passim. The Cuban agreement gives full effect to the Florida Keys and the Dry Tortugas, Ibid. at 7. In the agreement with Canada, the United States used the Alexander Archipelago in southern Alaska, Id. at 7.

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During the hearings, Hollis D. Hedberg, Professor of Geology at Princeton University, questioned the use of islands as basepoints for the establishment of the boundary line in the Gulf of Mexico claiming that this had given Mexico an important marine area in the central portion of the Gulf of Mexico potentially rich in hydrocarbons, to the detriment of the United States. In his opinion, the boundary lines should have been measured from the Mexican continental coast.141 Although the allegations made by Hedberg had no merit either from the language of the ISNT (which at that time represented the most authoritative position reflecting a general consensus on the major substantive questions on the law of the sea, including the specific issue of maritime delimitation), or from the viewpoint of international law, in responding to some of the arguments advanced by Hedberg and the questions posed by Senator Zorinsky, Feldman made these assertions: 1. The provisions of the law of the sea text (i.e., the ISNT) on delimitation of maritime boundaries . . . are reflective of the existing law on maritime boundaries as it applies to the United States in its relations to Canada and other countries (i.e., Mexico). We do not foresee any change in legal concepts or applications arising out of the adoption of these texts by the Law of the Sea Conference; 2. It is in the best interest of the United States . . . to give full effect to islands; 3. . . . We see the situation in the Gulf of Mexico under the formulas that are being evolved in the Law of the Sea Conference (in matters regarding the continental shelf and the continental margin), the entire Gulf of Mexico will become part of the continental margin of one country or the other (i.e., Mexico). Ultimately, there will be a basis for the division of the Gulf between the United States and Mexico, so that there will be no small areas left for international jurisdiction; 4. It is the U.S. position (like the Mexican position) that maritime boundaries are to be established by agreement in accordance with equitable principles. . . .In the three pending cases (i.e., Mexico, Cuba and Venezuela) . . . Equidistant lines were drawn giving full effect to islands and the lines were simplified, where useful for convenience or to avoid issues as to basepoints;

141

See Hollis D. Hedberg. Evaluation of U.S.-Mexico Draft Treaty on Boundaries in the Gulf of Mexico, 14 Marine Soc. Technology Journal (1980) at 32–37; and Ocean Floor Boundaries, 204 Science, 13 April 1979 at 135–144. See also Senate Report, supra note 138 at 35–51.

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5. In applying the equidistance method, islands should be utilized as basepoints in all cases. While this approach does not favor the U.S. in the deep waters of the eastern Gulf of Mexico, it is advantageous to the U.S. in the Pacific area with Mexico. 6. No objections have been made to the United States by other countries concerning these agreements, and we are not aware of any claim by a third State to any area embraced by these agreements.142 One final issue: an answer given by Feldman to a question by Sen. Zorinsky asking for an explanation regarding “trade-offs” that were involved in reaching the maritime delimitation agreements, including some with Mexico, provoked a stern response by Székely, who was a member of the Mexican negotiating team. Feldman’s answer was that, “[T]he specific tradeoffs in the context of the agreements with Mexico are a substantial area in the Pacific which went to the United States and a somewhat smaller area in the deep waters of the east central Gulf of Mexico which went to Mexico.” Székely characterized Mr. Feldman’s explanation as “baseless,” adding: There was absolutely no such bargaining at all. The lines drawn were exclusively the result of strict application of the criterion of the median or equidistance line. Mexico would have absolutely opposed such trade-off. In order to respond properly to Hedberg’s daring proposal, it was not necessary to resort to a misrepresentation of facts.143

4. The Exclusive Economic Zone and Its Impact on the Gulf of California a. The “Mexicanization” of the Gulf of California Chronologically, the “Mexicanization” of the Gulf of California occurred in two phases. In the first phase Mexico, as explained above, applied in 1968 the straight baseline method resulting in the establishment of a vast expanse defined by Mexican legislation as internal waters north of Island San Esteban, Isla Turners, and Isla San Pedro Mártir. The legal basis for the adoption of this method was based on Article 4 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, to which Mexico is a party. The second phase took place in 1976 when Mexico established its 200-nautical mile exclusive economic zone.

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These assertions are taken verbatim from the Senate’s Executive Report, supra note 138. The first three assertions were made by Mr. Feldman (Senate Report, pp. 20–23) and the three final assertions were made to the Senate by the Administration (Senate Report, Administration’s Responses to Additional Questions submitted for the Record by Senator Zorinsky, pp. 24–25). See Székely, supra note 127 at 158. (Emphasis added )

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Regarding the first phase, Article 5 of the 1958 Geneva Convention additionally prescribes that where the establishment of a straight baseline method has the effect of enclosing as internal waters areas which previously had been considered as part of the territorial sea or of the high seas, “a right of innocent passage shall exist in those waters.” Based on this provision, Mexico was legally obliged to recognize and respect the right of innocent passage in the area formerly under the high seas and territorial seas regimes in the upper part of the Gulf of California. Although the 1968 Decree “nationalized” the northern part of the gulf, the high seas regime regulated the lower part of the gulf, which remained in place and made that area a portion of the high seas. This marine portion consisted of the area beyond the 12 n.m. territorial sea in the interior of the Gulf of California,144 as demarcated in accordance with a combination of both normal and straight baselines pursuant to the 1968 Decree. Accordingly, prior to 1976, three different legal regimes applied to the Gulf of California under Mexico’s domestic legislation: 1) an Internal waters area in the northern portion located behind the straight baselines established by the 1968 Decree. From a scientific perspective, it should be pointed out that the U.S. marine scientific community has had a long fascination with the intriguing oceanographic phenomena associated with the Gulf of California, such as the existence the existence of metallogentetic holes, deep-sea vents, extremely high tides, the active delta activity of the Colorado River, ferromanganese nodules, and the like.145 Today, Mexico’s Federal Oceans Act establishes “[T]he northern part of the Gulf of California” as “Internal marine waters.”146 2) A territorial sea, initially with a nine-nautical mile width, and enlarged to twelve nautical

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In 1968, when the straight baseline decree was enacted, Mexico claimed a nine nautical mile territorial sea based on its interpretation of Article V of the Treaty of Guadalupe Hidalgo of 1848. The nine nautical mile width of its territorial sea was formally established in 1935 by amending the first paragraph of Article 18 of the General Act of National Assets (Ley General de Bienes Nacionales) by decree published in the Diario Oficial of August 31, 1935. This same Act was amended in 1969 to establish a twelve nautical mile territorial sea. See Decreto que Reforma el Primero y Segundo Párrafos de la Fracción II del Artículo 18 de la Ley General de Bienes Nacionales (Decree that Amends the First and Second Paragraphs of Section II of Article 18 of the General Act of National Assets), published in the Diario Oficial of December 26, 1969. In 1959, Scripps Institution of Oceanography and UNAM’s Institute of Marine Sciences and Limnology (Instituto de Ciencias del Mar y Limnología) published a joint bibliography containing a listing of 4170 marine scientific research works divided among 27 major scientific categories. See Richard A. Schwartzlose and J.H. Hendrickson. Bibliography of the Gulf of California. Marine Sciences (1981). See Article 36 of the FOA reads: “Internal marine waters (Aguas marinas interiores) are those between the coast and the normal or straight baselines from which the territorial sea is measured, in accordance with the pertinent provisions of the regulations of this Act. They

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miles in 1969 (which is the current width), measured from the corresponding baselines in the interior of the gulf, whether “normal” or “straight baselines; and 3) a high seas area, encompassing most of the lower portion of the Gulf. (The establishment of the exclusive economic zone did not affect the legal regimes describes in numerals 1 and 2 above). Today, Mexico continues to recognize the northern part of the Gulf of California as “internal marine waters,” and enforces the twelve nautical mile territorial sea in its interior lower part.147 Regarding category three, Mexico substituted the high seas area for the legal regime that governs the exclusive economic zone in the largest and lower portion of the Gulf, pursuant to Mexico’s Federal Oceans Act148 and the 1982 U.N. Convention on the Law of the Sea.149 For decades, Mexico embraced the idea of having appropriate and valid legal bases allowing it to convert the Gulf of California into an interior marine space, a sort of national lake under the exclusive use and control of Mexico.150 Many legal avenues were explored in order to accomplish such result, to no avail since none of these avenues provided a validation from the point of view of international law.

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include: I. The Northern part of the Gulf of California.” The text of the FOA appears as Document 1.1, in Appendix One of Chapter Two of this book. Although the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone, Art. 4, para. 6, obliges the coastal State to give “adequate publicity” and “clearly indicate” on marine charts the Art. 4 baselines used along its coastlines, Mexico has not published an official nautical chart depicting the straight baselines drawn in the interior of the Gulf of California pursuant to the 1968 Decree. According to a Mexican law of the sea expert, this omission may produce “very grave consequences,” and “may signify that Mexico does not have a territorial sea in those points where the straight baselines would have applied, since this delimitation is not publicized, the members of the international community would not be able to know said [the territorial sea] limits and, therefore, would not be expected to respect them.” See Székely, supra note 2 at 69, 68–73. See Articles 46–56, Federal Oceans Act. For a discussion of the FOA and Mexico’s Exclusive economic zone, see Chapter Two in this book: Mexican Marine Zones: Their Legal Regime under the Federal Oceans Act. See Articles 55–75, Part V: Exclusive economic zone, 1982 UN Convention on the Law of the Sea. See, for example, César Sepúlveda. Por una Soberanía sin Límites (For a [Gulf ] Sovereignty with no limits) arguing that the Gulf of California is an “inalienable part” of Mexico’s national territory. 18 Técnica Pesquera (1974) at 18–24; María Luisa Garza. El Golfo de California: Mar Nacional (The Gulf of California. National Sea). UNAM (1976). This author claims that because of the “vital importance that the Gulf of California has as part of the Mexican economy,” said gulf should be converted into an “interior oceanic space” or national sea; and J.E. Salgado and A. Murguia Rosete. La Bahía Histórica de California (The Historic Bay of California) (1976) claiming sovereignty over the Gulf of California based on historical considerations. In his article, supra note 20 at 250–260, Bernardo Sepúlveda explores several legal strategies to convert the Gulf of California into an “exclusive fishing zone and a national bay.”

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The current system of using the straight baseline method that results in a vast marine space in the northern part of the Gulf of California as Mexican internal waters, combined with the establishment of the exclusive economic zone regime that applies to the remaining southern portion of same gulf, practically converts the entirety of this unique marine space into an exclusive zone for the benefit of Mexico and its growing population.

3. Maritime Delimitation with Other Countries A. Maritime Boundary Delimitation Treaties and Agreements with Neighboring States At the international level, Mexico’s establishment of its exclusive economic zone in 1976 diplomatically moved that country to engage in negotiations with the other neighboring countries whose respective 200-nautical mile zones required the corresponding maritime delimitation agreements. In addition to the United States, these countries were: Cuba, Belize, Guatemala, and Honduras. 1. Cuba and the Exchange of Notes of 1976 Cuba is an island which lies less than 400 nautical miles off the east coast of Mexico. Just a few weeks after Mexico enacted its decree establishing the outer limit of its 200-nautical mile exclusive economic zone on June 7, 1976, that country proceeded immediately to conduct negotiations with Cuba to reach an agreement to divide the 200 nautical mile exclusive economic zones of both countries. The resulting agreement was effected by an Exchange of Notes dated in Mexico City on July 26, 1976.151 The agreement was based on the principle of equidistance (Art. 1), consisted of 13 straight-line segments, and enunciated 13 terminal points with the respective coordinates of latitude and longitude (Art. 2). Unlike the maritime delimitation agreement with the United States, the agreement with Cuba also established the submarine maritime boundary on the shared continental shelf of Mexico and Cuba, where such shelf exists (Art. 4).152

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The Exchange of Notes was signed by Alfonso García Robles, Secretary of Foreign Relations, and Fernando López Muiño, the Cuban Ambassador to Mexico. For the text of the agreement visit the web site of Secretaría de Relaciones Exteriores (SRE): www.sre.gob.mx/ tratado/Default.htm See also Limits in the Seas No. 104. Maritime Boundary: Cuba-Mexico. U.S. Department of State, Bureau of Intelligence and Research. The language of the Notes is reproduced as Appendix 7 in Vargas, Mexico’s EEZ, supra note 20 at 75–76. For an English translation of this Exchange of Notes, see Appendix Four at the end of this chapter. On the same date of this maritime delimitation agreement, Mexico also entered into a Fishing Agreement with Cuba effected by an Exchange of Notes.

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The boundary established has 352 nautical miles in total length, runs in a general southeast-northwest direction in the Caribbean Sea through the Yucatan Channel into the Gulf of Mexico. The water depths in the immediate vicinity of the boundary range from about 550 fathoms (3,300 feet) near turning point 4 to more than 2,400 fathoms (14,000 feet) from turning point 9 to point 13. Small offshore islands and cays were used as basepoints in determining the equidistant line.153 For the establishment of the maritime boundary with Cuba, Mexico used as basepoints the Islands of Cozumel, Isla Mujeres, Isla Contoy and Cabo Catoche. At the time when the agreement was effected, Cuba did not yet have, but contemplated having, a 200-nautical mile exclusive economic zone which was formally established on February 26, 1977. 2. Maritime Delimitation Treaty with Honduras of 2005 Honduras borders the Caribbean Sea, between Guatemala and Nicaragua and bordering the Gulf of Fonseca (North Pacific Ocean), between El Salvador and Nicaragua. For Mexico, the Caribbean Sea is considered as its “Third frontier.” This is a frontier of the future, highly strategic because of its abundance in natural resources such as fishing and oil, and its growing potential in tourism, trade and communications. Since Mexico’s marine spaces border with those of Belize, Guatemala and Honduras, the Caribbean Sea no longer is an open sea but a “Sea of frontiers.”154 Mexico’s negotiations to delimit the maritime boundaries with Honduras date back to July 3, 2003 when representatives from Mexico, Honduras, Guatemala and Belize met at the Caribbean Conference on Maritime Delimitation (CCDM), convoked by Mexico. During the Third Mexico-Honduras Binational Commission held in Tegucigalpa in October of 2004, Mexico reported on the advancements on the technical works to agree on a “International Maritime Line.” On February 10, 2005, Honduras received a Mexican proposal for the delimitation of the maritime boundary between both countries, and on March of 2005 Honduras informed Mexico that its proposal had been accepted. A Final Minute on the Technical Work conducted for the Delimitation of the International Maritime Boundary Line between Mexico and Honduras was signed in Tegucigalpa, Honduras on March 15, 2005.155 153

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Data taken from Maritime Boundary: Cuba-Mexico, Ibid. at 4. See Appendix Four for an English translation of this Exchange of Notes at the end of this chapter. These are some of the statements advanced in the Mexican Senate (Commissions of Foreign Affairs; Latin America and the Caribbean, and Navy) during its consideration to give its “approval” to the Maritime Delimitation Treaty with Honduras. Gaceta del Senado (Senate’s Gazette), No. 125 (2005), pursuant to Article 76, para. I of Mexico’s Political Constitution as one of the Senate’s exclusive powers. Ibid. An English translation of this Maritime Delimitation Treaty with Honduras appears in Appendix Four at the end of this chapter.

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The Treaty on Maritime Delimitation between Mexico and Honduras was signed in Tegucigalpa, Honduras, on April 18, 2005. Article I prescribes that the maritime boundary between both countries in the Caribbean Sea consists of a six geodesic lines connecting the appropriate points using coordinates of longitude and latitude. Point HM1 at the southern tip of the maritime boundary line is “Tripoint” (Trifinio) between Mexico, Honduras and Belize; and Point XIX at the opposite end, i.e., the northern tip of the maritime boundary line is “trifinium” between Mexico, Honduras and Cuba. Article II establishes that both parties shall cooperate, in the delimited zone, for the protection and preservation of the marine environment pursuant to the 1982 LOS Convention, considering the possibility that they may eventually establish a Binational Commission on Maritime Matters (Comisión de Asuntos Marítimos) to coordinate activities involving navigation safety, search and rescue, hydrographic studies, scientific research, preservation and protection of the marine environment, and other common interests. Article III provides that if the existence of transfrontier or shared oil deposits between both countries, the Parties shall exchange information about these deposits and may eventually enter into a formal agreement allowing for the efficient and equitable exploitation of said deposits. Article IV prescribes that neither of the Parties may claim or exercise, for any purposes whatsoever, sovereignty, sovereign rights or jurisdiction regarding the waters, soil and subsoil of the maritime areas of the other Party delimited by the Treaty. Article V establishes that any difference regarding the interpretation or application of the treaty shall be resolved through the proceedings for the peaceful settlement of disputes in Article 33 of the U.N. Charter. And Article VI establishes the formalities for the entering into force of the Treaty. 3. Pending Maritime Delimitation with Guatemala Guatemala borders the North Pacific Ocean, between El Salvador and Mexico, and bordering the Gulf of Honduras (Caribbean Sea) between Honduras and Belize. As of today (2009), Mexico has no bilateral maritime agreement regarding the delimitation of the outer limit of its exclusive economic zone with Guatemala. a. Agreement for the Surveillance of Border Maritime Zones in the Pacific Ocean of August 17, 1989 However, Mexico and Guatemala established a bilateral Agreement for the Surveillance of the Border Maritime Zones in the Pacific Ocean, both in the Territorial Sea and the Exclusive economic zone effected by an Exchange of Notes dated in Tapachula, Chiapas, on August 17, 1989. This agreement prescribes: After both Parties have confirmed that the maritime boundary in the Exclusive economic zone in the Pacific Ocean, unilaterally determined by the Government of Mexico operates under the reservation of rights of the Government of Guate-

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mala accepted by the Government of Mexico, the Ministry of Foreign Affairs of Guatemala informs the Secretariat of Foreign Affairs of Mexico that the Government of Guatemala considers pertinent – without prejudice that in the future through an agreement between both Parties, a definite maritime boundary be established – the oral agreements be formalized in the following manner: 1. That in the Territorial Sea of Guatemala and in the Territorial Sea of Mexico, that extends out to a distance of 12 nautical miles, in front of the mouth of Rio Suchiate, a fishing prohibition zone (Zona de veda a la pesca), comprised between the aligning of the Guatemalan lighthouses (Faros), established to indicate the proximity of the maritime boundaries, of these geographical coordinates 14°31'46" North Latitude and 92°13'17", 436" West Longitude, the preceding lighthouse; and 14°31'55", 17" North Latitude and 92°13'09", 335" West Longitude, the posterior lighthouse, and the alignment of the Mexican lighthouses, established for the same purpose, of the following geographical coordinates: 14°33'33", 858" North Latitude and 92°15'17", 782" West Longitude, the preceding lighthouse, and 14°33'41", 126 North Latitude and 92°15' 11,055" West Longitude, the posterior lighthouse. The geographical coordinates of the alignment of the Guatemalan lighthouses, 12 nautical miles into the ocean (Mar adentro), are: 14°22'41", 38" and 92°21'32", 96"West Longitude, and the two Mexican lighthouses at the same distance are 14°24' 32", 39 North Latitude and 92°23'38", 47" West Longitude; and 2. That in the Exclusive economic zone of Guatemala and in the Exclusive economic zone of Mexico, immediately adjacent to the maritime boundary determined by Mexico in the Pacific Ocean, each of these countries establish its respective jurisdiction in a two-mile wide toleration belt (Faja de tolerancia) where it will be excused as a non-sanctionable navigation error (Error de navegación no sancionable), provided the violator is not a recidivist and obeys, immediately (Desde luego), the instructions received to get away (Retirarse) from said belt.156

The international upland boundary between Mexico and Guatemala was established by the Boundary Treaty of September 27, 1882.157 The boundary consists of the median line of the Rio Suchiate and the deepest channel (Thalweg) in Rio

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The Guatemalan diplomatic note was signed by Lic. Mario Palencia Lainfiesta, Minister of Foreign Affairs, and the Mexican note by Lic. Fernando Solana, Secretary of Foreign Affairs. Mexico agreed to the terms of this agreement which was not published in the Diario Oficial. The agreement was not subject to the “Ratification” (Advice and consent) of the Mexican Senate notwithstanding that this is mandated by Art. 76, para. 1 of Mexico’s Political Constitution. The agreement entered into force on August 17, 1989. See Article III, Tratado de Límites Internacionales entre México y Guatemala (International Boundary Treaty between Mexico and Guatemala), SRE: Tratados y Convenciones Internacionales, México (1930), Vol. I at 365–367. Signed in Mexico City on September 27, 1882. Approved by the Mexican Senate on October 17, 1882; the Exchange of ratification instruments took place on May 1, 1883; published in the Diario Oficial of May 3, 1883 (including some maps). The Treaty was singed by Ignacio Mariscal, Mexican Minister of Foreign Affairs, and Manuel Herrera, Guatemalan Secretary of Foreign Affairs.

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Usumacinta, and a series of geographical coordinates, similar to the boundaries that exist between Mexico and the United States. To take care of international boundary matters, Mexico and Guatemala established an International Boundary and Water Commission between both countries effected by an Exchange of Notes of November 9 and December 21, 1961,158 patterned after the IBWC between Mexico and the United States. On August 18, 1989, Mexico and Guatemala entered into a Modus Vivendi (Entendimiento) formalizing the establishment of a Mexico-Guatemala Binational Group on Ports and Border Services, coordinated by the respective Foreign Affairs departments and composed of members of the authorities of both countries involved in the “maintenance and improvement of the international bridges and ports and the harmonization of port and border services between both countries.”159 4. No Maritime Delimitation Agreement with Belize Belize borders the Caribbean sea and is between Guatemala and Mexico. As of this date (2010), Mexico and Belize have no maritime delimitation agreement regarding Mexico’s 200-nautical mile exclusive economic zone in the Caribbean Sea. a. Modus Vivendi on Right of Innocent Passage by Warships of Mexico and Belize of 1990 On April 26, 1990, both countries reached a Modus Vivendi (Entendimiento) regarding the Innocent Passage of Mexico’s Navy vessels thought the Territorial Sea of Belize and military vessels of Belize in the Mexican Territorial Sea.160 158

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See also Tratado para Fortalecer la Comisión Internacional de Límites y Aguas entre los Gobiernos de los Estados Unidos Mexicanos y la República de Guatemala (Treaty to Strengthen the International Boundary and Water Commission between Mexico and Guatemala), signed in Mexico City on February 3, 1990. See Entendimiento mediante el cual se Formaliza la Creación del Grupo Binacional sobre Puertos y Servicios Fronterizos México-Guatemala, effected by an Exchange of Notes in Tapachula, Chiapas, on August 18, 1989. This agreement was not published in the Diario Oficial and was not subject to the customary “ratification” by the Mexican Senate. The agreement entered into force on August 18, 1989. For an English translation of this agreement, see Appendix Four at the end of this chapter. See Entendimiento en Materia de Paso Inocente de Unidades de la Armada de México por el Mar Territorial de Belice y en el Mar Territorial Mexicano of April 26, 1990. The agreement was signed by Lic. Fernando Solana, Mexican Secretary of Foreign Affairs (SRE) and Said Musa, Minister of Foreign Affairs, Economic Development and Education of the Government of Belize. The agreement was not published in the Diario Oficial and was not subject to the customary “ratification” by the Mexican Senate. The Agreement entered into force on April 15, 1991. For an English translation of this agreement, see Appendix Four at the end of this chapter.

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This agreement simply states that innocent passage is regulated by the 1982 U.N. Convention on the Law of the Sea, to which both countries have been parties to since 1983, as reflected in the corresponding 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. Then it adds: Section 3, Part II of the 1982 Convention, establishes that all ships, whether surface units or not, enjoy the right of innocent passage through the territorial sea, subject to the norms prescribed by Articles 17 though 32 of said Convention and specifically in the case of warships (Embarcaciones militares) in Articles 29 through 32.161

b. Binational Commission on Boundaries and Border Cooperation of 1991 On April 15, 1991, both countries reached an agreement through an Exchange of Notes agreement for the establishment of a “Mexico-Belize Binational Commission on Boundaries and Border Cooperation” composed by a single diplomat from each Chancellery with the title of “Boundary Commissioner.” The objectives of this Commission are the “due application of boundary bilateral agreements between both countries, the bilateral consultation and arrangement (Concertación) on border cooperation and the exchange of information on subjects on common interest in the border area.”162 However, said Commission “is not to have any executive powers (Facultades resolutivas) that may imply engagements for the Governments when lacking an explicit authorization from the Chancellery to the Commissioner.”163

4. Conclusions Mexico’s EEZ was established through a constitutional amendment adding an Eighth Paragraph to Art. 27 of its Political Constitution, by decree of February 6, 1976 (effective June 6, 1976). Subsequently, that country published (a) a “Reglamentary Act” detailing the content and legal nature of the EEZ (D.O. of February 13, 1976) and (b) the corresponding “Regulations establishing the EEZ’s outer boundary” (D.O. of June 7, 1976). These federal enactments were designed to enter into force on June 6, 1976, exactly one month after the ending of the fourth session of UNCLOS III when the “Informal Revised Negotiating Text” (ISNT) came out in New York in order to make these domestic enactments be in consonance with said ISNT. From a legislative perspective, the adoption of Mexico’s EEZ is the result of the following progression: (a) The reaffirmation of the exclusive sovereignty 161 162 163

Ibid. Id. Id. The signatories of this Agreement are the same who signed the 1990 Agreement.

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over its natural resources, both land-based and marine, included in Art. 27 of its Political Constitution; (b) the incorporation of the continental shelf to the national territory in 1960 (contrary to international law notions); (c) the establishment of an exclusive fishing zone between 9 and 12 n.m. in 1966; (d) the enlargement of the territorial sea from 9 to 12 n.m. in 1969; and (e) the delimitation of the territorial sea in the interior of the Gulf of California through the application of the of the straight baseline method in 1968 (challenged by the United States). Regarding the EEZ’s legal nature, Mexico reputes this marine space neither as a high seas zone with exceptions in favor of the continental State nor a territorial sea with exceptions in favor of other States but a marine zone whose legal regime is sui generis, contrary to the position by the United States (and other maritime powers). The EEZ, as a sui generis novel marine space, comprises both sovereignty rights for purposes of exploration and exploitation of natural resources (both living and non-living) and jurisdictions with regard to artificial islands, marine scientific research and the protection and preservation of the marine environment, including control over customs, fiscal, immigration or sanitary questions. Mexico’s EEZ adheres closely to the provisions of the ISNT (Geneva 1975), in particular Articles 45 and 46, in the understanding that Mexico is of the opinion that this document reflects the “implicit consensus” reached by the international community at UNCLOS III. Accordingly, Mexico’s unilateral establishment of its 200 n.m. EEZ is reputed to be in symmetry with customary international law. The use of islands by Mexico as base points to delimit the EEZ’s outer boundaries is also in symmetry with customary international law, as validly recognized by the LOS Convention and as reflected in the uniform and general practice of numerous coastal States throughout the world, including the United States of America. The application by Mexico of the straight baseline method for the delimitation of the territorial sea in the interior of the Gulf of California is based on Article 4, paras. 1 and 2, of the 1958 U.N. Geneva Convention on the Law of the Sea. Mexico interpreted and applied said article in good faith and in a reasonable manner within the limits of appreciation recognized by international law by the Vienna Convention on the Law of Treaties of 1968, Articles 2, 31 and 32). However, as asserted in the diplomatic note lodged by the United States on this matter, four of said straight baselines are not in conformance with the 1958 Geneva Convention. However, it should be recalled that no international treaties or conventions nor decisions rendered by the International Court of Justice enunciate in a precise and detailed manner the technical way in which the application of said method should be done. As of today, some 75 coastal States since 1951 have applied the straight baseline method in a

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unilateral manner and in accordance to their own interpretation, like Mexico did in 1968. Save for the United States, no other country ever objected to Mexico’s application of said straight-base line method in the Gulf of California. In the maritime delimitation agreements Mexico entered into with Cuba, the United States and Honduras, regarding Mexico’s outer boundary of the EEZ, Mexico acted in compliance with the principles of good faith and the principle of equidistance, thus complying with international law and the corresponding articles of the 1982 Law of the Sea Convention of 1982.

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Appendix Four Document 4.1 REGLAMENTARY ACT OF THE EIGHTH PARAGRAPH OF ARTICLE 27 OF THE POLITICAL CONSTITUTION, REGARDING THE EXCLUSIVE ECONOMIC ZONE LUIS ECHEVERRIA ALVAREZ, Constitutional President of the United Mexican States, makes known to its citizens: That the Congress of the Union has submitted to me the following. DECREE: “The Congress of the United States of Mexico, decrees: REGLAMENTARY ACT OF THE EIGHTH PARAGRAPH OF ARTICLE 27 OF THE CONSTITUTION, REGARDING THE EXCLUSIVE ECONOMIC ZONE ARTICLE 1. In an exclusive economic zone situated outside the territorial sea and adjacent to it, the Nation exercises the sovereign rights and the jurisdiction determined by this Act. ARTICLE 2. The outer boundary of the exclusive economic zone shall be a line whose points are all located at a distance of 200 nautical miles from the baseline from which the width of the territorial sea is measured. In cases where that extension produces overlapping with the economic zones of other States, the delimitation of the respective zones shall be made, as it may be necessary, by means of agreements with those States. ARTICLE 3. The islands that form a part of the national territory, except those which cannot sustain habitation or economic life of their own, shall also have an exclusive economic zone whose boundaries will be determined following the guidelines in the preceding article. ARTICLE 4. In the exclusive economic zone, the Nation has: I.

Sovereign rights for the purpose of exploration and exploitation, conservation and management of natural resources, both renewable and non-renewable, of the seabed including the subsoil and the superjacent waters; II. Exclusive rights and jurisdiction with respect to the establishment and use of artificial islands, installations and structures; III. Exclusive jurisdiction with respect to other activities related to the economic and exploration of the zone. IV. Jurisdiction as to: a. The preservation of the marine environment, including the control and elimination of pollution; b. Scientific research.

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ARTICLE 5. In the Exclusive economic zone, foreign states shall enjoy rights of navigation and flight, and of laying of cables and submarine pipelines, as well as other internationally legitimate uses of the sea related to navigation and communications. ARTICLE 6. The Federal Executive Power shall dictate the necessary measures of administration and conservation so that the living resources are not threatened by an excessive exploitation. The Federal Executive shall determine the allowable catch of the living resources in the exclusive economic zone. ARTICLE 7. Without prejudice to what is prescribed in the preceding Article, the Federal Executive shall promote the optimal utilization of the living resources in its exclusive economic zone. ARTICLE 8. When the total allowable catch of a species is greater than the capacity of the national vessels to fish and hunt, the Federal Executive Power shall give foreign ships access to the surplus [of the allowable catch], in accordance with the national interest and under the conditions established by the Federal Act to Promote Fishing (Ley Federal para el Fomento de la Pesca). ARTICLE 9. The provisions of the present Act shall not modify the regime of the continental shelf. TRANSITORIES: First. In the enforcement of the present Act, the Executive shall observe, as applicable, the current laws and regulations in force that relate to matters in Article 4 of this Act, as long as no specific legal provisions related to each of these matters are enacted. Second. This Act shall enter into force simultaneously with the addition of the Eighth paragraph to Article 27 of the Constitution. Mexico, D.F., December 4, 1975 – Emilio M. Gonzalez Parra, S.P. – Luis del Toro Calero, D.P. – Salvador Gámiz Fernandez, S.S. – Rogelio García González, D.S. –.” In fulfilling the provisions of the First Paragraph of Article 89 of the Political Constitution of the United Mexican States and for its required publication and observance, I extend the present decree in the residence of the Federal Executive Power, in the city of Mexico, Federal District, on the tenth day of February of nineteen seventy-six. – Luis Echeverría Alvarez. – Rubric. – The Secretary of Foreign Affairs, Alfonso García Robles.

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Chapter Four: Appendix Four Document 4.2 DECREE ESTABLISHING THE OUTER BOUNDARY OF MEXICO’S EXCLUSIVE ECONOMIC ZONE Published in the Diario Oficial of June 7, 1976 CONSIDERING:

WHEREAS the Regulatory Act of the Eighth Paragraph of Article 27 of the Constitution, relating to the Exclusive Economic Zone, published in the “Diario Oficial ” of 13 February 1976, establishes the outer boundary of said zone will be a line whose points are all located at a distance of 200 nautical miles from the baseline from which the width of the territorial sea is measured and that, in cases where that extension produces overlapping with the economic zones of other States, the delimitation of the respective zones will be made, as it may be necessary, by means of agreements with those States. WHEREAS according to section II of Article 18 of the General Act of National Assets the width of the territorial sea is measured from the low tide line, along the coasts and islands that are part of the national territory, but which can also be measured as prescribed by the second paragraph of the above section, in conformance with other criteria equally accepted by international law. WHEREAS from the above, so that the Eighth Paragraph of Article 27 of the Constitution may enter into force, it is necessary that the seafarers and the general public have exact knowledge of the outer boundaries of the Exclusive Economic Zone. WHEREAS the requirement alluded to in the preceding paragraph can only be satisfied with the publication of the provisions of general observance necessary to determine, by means of geographic coordinates, the outer boundary of Mexico’s Exclusive Economic Zone, I have decided to enact the following: DECREE ESTABLISHING THE OUTER BOUNDARY OF THE EXCLUSIVE ECONOMIC ZONE OF MEXICO. ARTICLE 1. The outer boundary of the Exclusive Economic Zone of Mexico is composed by a series of arcs that unite the points whose geographic coordinates are specified below:

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I. In the Pacific Ocean Latitude Degrees 32 32 32 32 32 32 31 31 31 31 30 30 30 30 30 30 30 29 29 29 28 28 28 27 27 26 26 26 29 25 25 25 25 25 25 25 25 24 24 24 24 24 23 23

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

35 35 35 37 17 01 32 21 20 07 59 58 57 53 52 32 12 49 24 3 36 17 2 39 17 56 37 20 5 51 43 36 31 30 31 19 8 53 36 19 10 4 58 44

22.11 21. 32. 37. 22. 52. 58. 25 55.0 58.0 00. 06. 21. 28 05. 31.20 57.57 11.25 53.10 54.52 8.81 7.07 43.59 28.72 19.12 33.82 30.49 25.26 32.46 30.14 11.83 2.56 42.61 15.56 51.89 42.07 55.27 10.08 58.24 33.39 18.39 51.12 49.43 22.69

117 117 117 117 117 118 118 118 118 118 118 119 120 120 120 121 122 122 122 122 122 122 121 121 121 121 121 120 120 119 119 119 118 118 117 117 117 117 116 116 115 115 115 115

27 28 29 49 59 07 19 25 25 36 45 34 04 22 28 51 0 6 10 10 6 1 57 48 37 22 5 16 24 57 36 10 44 17 49 36 22 7 47 18 58 50 41 37

49.42 4. 06. 31. 41. 16.0 46. 10. 35. 18. 02. 12. 19. 12. 24. 58.37 16.69 55.46 9.90 13.50 26.95 14.41 35.94 59.70 20.82 51.00 44.01 15.46 42.58 56.69 39.41 49.56 15.82 20.00 3.27 12.91 50.48 10.79 4.48 26.35 1.73 30.55 20.19 54.18

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Table (cont.) I. In the Pacific Ocean Latitude Degrees 23 22 22 22 22 21 21 21 21 21 21 21 21 21 21 20 20 20 19 19 19 18 18 17 17 17 17 16 16 16 15 15 15 15 15 15 15 15 15 15 15 15 15

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

21 58 38 18 1 46 36 38 41 43 41 37 29 19 6 51 33 13 52 29 6 41 17 58 40 20 0 38 18 0 43 29 18 9 3 0 0 2 4 10 18 30 40

4.64 51.22 1.64 53.81 44.05 46.95 27.37 15.57 58.95 30.58 58.95 25.51 54.63 33.45 31.80 1.98 18.54 38.02 18.65 40.04 2.86 48.51 18.78 12.50 26.03 8.74 31.92 46.91 33.10 8.02 47.58 45.88 14.95 24.68 22.62 13.94 13.94 53.84 43.83 4.68 54.95 25.87 44.82

115 115 115 114 114 114 113 113 114 114 115 115 116 116 116 117 117 117 117 118 118 118 118 118 118 118 117 117 117 117 116 116 116 115 115 115 114 114 113 113 113 112 112

29 18 4 48 29 8 50 58 20 46 12 38 3 26 49 9 27 42 55 5 12 15 16 14 11 6 58 46 32 15 56 35 13 50 25 0 31 9 59 38 13 52 36

43.99 36.46 42.56 15.37 29.84 42.59 36.86 9.07 15.47 25.00 34.53 19.12 14.32 56.60 3.85 15.71 13.91 42.58 28.44 20.93 12.33 57.78 35.25 53.39 47.35 6.48 16.66 33.19 13.03 29.30 37.02 52.81 34.74 2.08 35.00 34.37 45.63 27.60 7.74 12.72 39.98 21.84 37.60

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Table (cont.) I. In the Pacific Ocean Latitude Degrees 15 15 15 15 15 15 15 15 15 16 16 16 16 17 17 16 16 16 16 16 15 15 15 15 15 15 14 14 14 14 14 14 14 14 14 14 14 13 13 13 13 13 13

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

39 31 25 21 21 23 28 36 47 0 16 34 54 17 4 47 37 28 15 6 57 41 27 16 7 3 58 54 48 46 44 40 31 20 11 4 0 54 51 45 36 29 25

13.50 55.44 29.14 55.56 17.74 36.22 49.03 51.71 37.40 56.87 38.70 29.38 13.54 34.21 30.82 52.62 5.11 2.78 26.58 25.72 5.00 3.56 22.70 14.16 56.35 36.69 32.24 4.21 1.58 15.75 23.22 28.52 55.07 56.23 51.61 33.34 32.34 46.85 42.93 56.56 51.60 46.65 7.27

112 112 111 111 110 110 109 109 109 108 108 108 108 107 107 107 107 106 106 106 105 105 105 104 104 104 104 103 103 103 103 103 103 102 102 102 101 101 101 101 100 100 100

23 4 40 15 49 24 59 36 13 52 32 15 0 46 34 15 0 48 26 6 56 37 16 54 30 20 4 52 31 23 20 13 1 43 23 2 53 36 24 14 54 34 15

32.69 24.57 1.48 1.82 46.84 37.99 56.64 3.84 19.99 4.67 36.32 12.06 7.40 36.57 39.55 57.94 58.31 19.82 33.64 1.88 44.62 35.35 36.67 6.81 54.45 2.15 18.99 36.35 55.01 47.41 35.25 26.04 33.44 10.42 44.50 40.09 1.57 5.41 23.99 15.26 52.43 39.07 35.64

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Table (cont.) I. In the Pacific Ocean Latitude Degrees 13 13 13 12 12 12 12 12 12 12 12 12 12 12 12 12 12 12 11 14

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

16 9 0 50 43 38 31 27 22 19 17 17 20 22 25 32 28 25 58 22

14.26 23.52 17.98 16.25 0.16 43.84 48.56 26.27 6.70 36.48 36.09 23.43 2.53 7.61 51.89 0.83 33.78 13.49 07.07 55.60

99 99 99 99 98 98 97 97 97 97 96 96 95 95 95 95 94 94 94 92

57 39 23 0 36 12 54 38 17 2 44 19 55 39 22 2 58 55 26 22

22.47 5.65 8.03 19.82 28.63 57.57 9.29 0.79 27.84 35.85 34.56 38.86 23.40 32.06 7.52 27.54 35.88 26.72 02.83 09.60

II. In the Gulf of Mexico and the Caribbean Sea Latitude Degrees 25 26 26 25 25 25 25 25 24 24 24 24 24 25

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

58 01 00 59 48 34 20 7 54 44 40 47 55 2

30.57 17.00 33.00 48.28 42.45 46.77 58.76 22.39 1.56 13.42 12.09 8.55 20.24 42.20

96 95 93 93 93 93 93 93 93 93 93 93 93 93

55 00 28 26 27 28 31 34 39 43 45 36 23 10

27.37 02.00 07.00 42.19 8.00 38.49 12.47 48.83 26.21 33.32 26.32 12.94 46.83 43.43

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Table (cont.) II. In the Gulf of Mexico and the Caribbean Sea Latitude Degrees 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 24 24 24 24 24 23 23 22 22 21 21 21 20 20 20 19 19 19 19

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

9 14 19 23 25 27 28 33 39 42 42 46 46 46 46 43 41 37 31 23 15 7 0 56 56 56 56 56 30 26 45 18 41 36 35 49 17 04 39 32 14 8

12.13 48.00 28.05 10.81 55.10 40.07 4.18 15.47 18.77 13.05 45.00 39.00 52.00 49.0 41.0 40. 56.52 25.05 8.29 58.96 59.30 11.79 6.39 35.25 36.86 34.98 29.35 28.83 31.50 54.30 32.80 55.80 31.50 00.10 20.90 36.40 46.70 37.10 16.60 25.80 50.04 16.39

92 92 92 92 91 91 91 91 91 91 91 90 90 90 90 89 88 88 87 87 87 87 87 87 87 87 86 86 86 86 86 86 85 85 85 85 85 84 84 84 84 85

57 43 28 13 58 43 37 27 13 5 01 32 29 28 24 12 23 11 57 44 31 19 11 7 4 0 56 56 24 22 06 00 52 51 51 32 7 57 62 38 59 7

6.70 0.81 30.10 39.10 32.46 14.91 18.11 5.36 10.50 24.89 27. 21. 41.00 30.00 36.0 45. 5.54 15.42 28.07 13.20 34.83 36.76 6.80 13.67 10.00 19.71 29.50 16.69 14.70 33.80 55.00 35.20 43.40 18.20 9.30 23.10 24.25 56.30 46.50 30.66 51.64 30.07

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Table (cont.) II. In the Gulf of Mexico and the Caribbean Sea Latitude Degrees 18 18 18 17 17 17 18

Longitude

Minutes

Seconds

Degrees

Minutes

Seconds

23 9 0 47 49 55 3

32.25 43.80 12.92 5.41 59.80 24.41 31.32

85 85 85 86 86 87 87

26 31 48 8 28 26 39

24.32 56.68 43.53 48.53 45.30 5.26 22.00

ARTICLE 2. The Secretariat of the Navy shall publish the nautical charts in which the outer boundary of the Exclusive Economic Zone of Mexico is traced according to the coordinates established in the preceding Article. TRANSITORIES: First. This Decree will enter into force on July 31, 1976. Second. The Secretariats of the Navy, and of Industry and Commerce will take all the necessary actions, within their respective spheres, to comply with the provisions of the Regulatory Act of the Eighth Paragraph of Article 27 of the Constitution as of the date when this decree enters into force.

This map is reproduced from the article by Jorge A. Vargas. Mexico’s Legal Regime over its Marine Spaces: A Proposal for the Delimitation of the Continental Shelf in the Deepest Part of the Gulf of Mexico, 26 Inter-American Law Review (Winter 1994–95) at 240, 189–242.

Mexico’s Outer Boundary of its Exclusive Economic Zone

Document 4.3

Mexico’s Exclusive Economic Zone

253

254

Chapter Four: Appendix Four Document 4.4 LIMITS IN THE SEAS No. 104 MARITIME BOUNDARY: MEXICO – CUBA September 10, 1985

On July 26, 1976, the Governments of the Republic of Cuba and the United States of Mexico exchanged notes which constituted an agreement establishing a maritime boundary in the Yucatan Channel which connects the Gulf of Mexico to the Caribbean Sea. The agreement entered into force on this date. A translation of these notes is as follows: Mexico City, D.F. July 26, 1976 His Excellency Mr. Fernando Lopez Muino Ambassador Extraordinary and Plenipotentiary of Cuba Mexico City, D.F. Mr. Ambassador, As the result of the talks held between representatives of Mexico and Cuba concerning the delimitation of each country’s sea space in those areas where the two countries’ respective sea spaces adjoin by virtue of the establishment by Mexico of an Exclusive Economic Zone and the possible future creation by Cuba of a similar Exclusive Economic Zone (or its equivalent), by instructions of my government I have the honor to propose to your Excellency the following: 1. The Government of Mexico and the Government of Cuba agree to establish, on the basis of the principle of equidistance, a dividing line between the Exclusive Economic Zone of Mexico and sea space that will become the Economic Zone of Cuba (or the equivalent thereof ). 2. The dividing line to which the foregoing paragraph 1 refers shall be defined as the great circle arcs joining the points whose geographical coordinates, so far as can be determined from the best information available, are the following:

Point No. 1 2 3 4 5 6 7 8 9 10 11 12 13

Latitude North 24° 23° 23° 22° 22° 21° 21° 21° 20° 20° 20° 19° 19°

56' 30' 26' 45' 18' 41' 36' 35' 49' 17' 04' 39' 32'

Longitude West 28.83" 31.50" 54.30" 32.80" 55.80" 31.50" 00.10" 20.90" 36.40" 46.70" 37.10" 16.60" 25.80"

86° 86° 86° 86° 86° 85° 85° 85° 85° 85° 84° 84° 84°

56' 24' 22' 06' 00' 52' 51' 51' 32' 07' 57' 42' 38'

16.69" 14.70" 33.80" 55.00" 35.20" 43.40" 18.20" 09.30" 23.10" 24.25" 56.30" 46.50" 30.66"

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255

3. The dividing line is shown, for purposes of illustration, on the chart appended to this note. 4. The dividing line shall also serve as the dividing line between the Mexican and Cuban portions of the continental shelf, where such shelf exists. 5. Agreement on the items referred to in the foregoing paragraphs 1 to 4 does not affect the positions or conceptions of either of the two Governments in matters relating to the law of the sea other than the delimitation of sea spaces to which this Agreement refers. I ask your Excellency that, if the above points merit the approval of your government, please inform me so that this note, and your Excellency’s note, in reply, constitute a formal agreement, again between the United States of Mexico and the Republic of Cuba. I take this opportunity to renew the assurance of my highest and most distinguished consideration. (Signed) Alfonso Garcia Robles Secretary of External Affairs The following is a translation of the reply of the Government of the Republic of Cuba: Embassy of the Republic of Cuba Mexico City, D.F. Note No. 190/76 Mexico City, D.F. July 26, 1976 Lic. Alfonso Garcia Robles Minister of External Affairs Mexico City, D.F. Your Excellency, As the result of the talks held between representatives of Mexico and Cuba concerning the delimitation of each country’s sea space in those areas where the two countries’ respective sea space adjoin by virtue of the establishment by Mexico of an Exclusive Economic Zone and the possible future creation by Cuba of a similar Economic Zone (or its equivalent), and in reply to Your Excellency’s kind note, I am honored to inform you that my Government has approved the following items which were proposed in that note: (Paragraphs 1 to 5 are identical to the Mexican note printed above.) I would ask that this note be accepted as the reply to the note from Your Excellency, in order that the two might together constitute a formal Agreement between the Republic of Cuba and the United States of Mexico.

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I take this opportunity b renew the assurances of my highest and most distinguished consideration. (Signed) Fernando Lopez Muiño Ambassador of Cuba ANALYSIS The negotiated maritime boundary is depicted on the attached illustrative map produced for this study. The straight-line segments connecting the boundary turning points are rhumb lines on this map; article 2 of the agreement, however, specifies that the actual boundary segments are to be great circle arcs. 1/ Geographical measurements used in this analysis may differ from official calculations owing to the use of different references, such as charts, basepoints, or datums. The maritime boundary consists of 13 turning or terminal points with the distance between respective points ranging from 0.7 miles (between points 7 and 8) to 90.8 miles (between points 1 and 2). 2/ The boundary, 352 miles in total length, runs in a general southeastnorthwest direction from the Caribbean Sea through the Yucatan Channel into the Gulf of Mexico. The water depths in the immediate vicinity of the boundary range from about 550 fathoms (3,300 feet) near turning point 4 to more than 2,400 fathoms (14,000 feet) from turning point 9 south to point 13. The two governments have delimited their maritime boundary on the basis of an equidistant line whereby the line separating their respective marine jurisdictions is equally distant from the two coastlines. Although Cuba has claimed straight baselines, from which it measures the territorial sea and other national maritime zones, it appears that the straight baselines themselves have not been used in calculating the equidistant line (see Table 1). Small offshore islands and cays have been used as basepoints in determining the equidistant line. In the northwest the boundary begins at point 1, some 200 miles from Cabo Catoche on the Mexican Yucatan peninsula and from an unnamed cay north of Cabo San Antonio in the southwest part of Cuba. Turning points 6, 7, and 8, situated in the center of the Yucatan Channel, represent that portion of the boundary at which the two states are closest; here, Cabo San Antonio is about 105 miles east of the Mexican island of Contoy. This southeast terminus, point 13, is almost 133 miles from the two coasts. A point approximately 2 miles further south would be equidistant from Cuba, Mexico, and Honduras (Swan Island). The agreement states that the boundary shall divide Mexico’s exclusive economic zone (which it claimed on July 31, 1976) and Cuba’s “sea space that will become the Economic Zone of Cuba (or the equivalent thereof ).” Subsequent to this agreement, Cuba on February 26, 1977, claimed an exclusive economic zone. Both states’ zones extend to a maximum-allowed 200 miles. NOTES 1. A rhumb line is a line on the surface of the earth making the same angle with all meridians, a loxodromic curve spiraling toward the poles in a constant angle direction. On a Mercator projection (used primarily for nautical charts), a rhumb line

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257

appears as a straight line thereby making it useful for mariners. A great circle is a circle on the surface of the earth, the plane of which passes through the center of the earth. All meridians of longitude and the Equator are great circles. Only on a Gnomonic projection do all straight lines represent arcs of great circles. 2. All references to miles in this study are to nautical miles. One nautical mile equals 1,852 meters. Table 1 Cuba – Mexico Maritime Boundary Turning/ Distance Nearest Cuban territory* terminal between point boundary pts. (nm) 1

Nearest distance land Mexican to boundary pt. (nm) territory**

Unnamed cay (Pt.9)

200.3

200.2

Cabo Catoche

Unnamed cay on Banco Sancho Pardo (Pt.6)

119.9

120.6 120.5

Cabo Catoche Isla Contoy-1

Unnamed cay on Banco Sancho Pardo (Pt.6)

116.5

117.3 117.3

Isla Contoy-1 Mainland

83.7

83.0

Isla Contoy-1

64.6 64.6 52.3 52.3

Isla Isla Isla Isla

90.8 2 4.4 3 43.8 4

Unnamed cay on Banco Sancho Pardo (Pt.6) Cabo San Antonio-1 (Pt.3)

83.7

Cabo San Antonio-2 (Pt.1)

64.6

Cabo San Antonio-2 (Pt.1)

52.6

Cabo San Antonio-3 (Pt.124) Cabo San Antonio-4 (Pt.123)

52.6 52.6

Cabo San Antonio-3 (Pt.124) Cabo San Antonio-4 (Pt.123)

52.7 52.7

52.6

Isla Contoy-4

Cabo San Antonio-3 (Pt.124) Cabo San Antonio-4 (Pt.123)

52.7 52.7

52.6

Isla Contoy-4

Pta.Perpetua (Pt.119)

69.2

67.2

Cozumel-1

Pta.Perpetua (Pt.119) Pta.del Holandes (Pt.117)

92.5 92.5

91.4

Cozumel-2

Cabo Corrientes (Pt.115)

103.7

103.4 103.4

Cozumel-2 Cozumel-3

27.3 5 38.1 6

Contoy-1 Contoy-2 Contoy-3 Contoy-4

5.7 7 0.7 8 49.0 9 39.4 10 15.9 11 29.1

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Table (cont.) Turning/ Distance Nearest Cuban territory* terminal between point boundary pts. (nm)

Nearest distance land Mexican to boundary pt. (nm) territory**

12

Cabo Corrientes (Pt.115)

126.3

126.0

Cozumel-3

Cabo Corrientes (Pt.115)

132.7

132.6

Cozumel-3

7.8 13 Total

352.0

* Basepoints taken from Cuban Decree-Law 1 of February 24, 1977. Numbers in parentheses refer to specific basepoints listed in this law. ** Basepoints taken from U.S. charts.

Mexico’s Exclusive Economic Zone

259

260

Chapter Four: Appendix Four Document 4.5 LIMITS IN THE SEAS No. 45 MARITIME BOUNDARY: MEXICO – UNITED STATES August 11, 1972

On November 23, 1970, the Governments of Mexico and the United States signed a treaty for the clarification of the Rio Grande boundary and the creation of maritime boundaries between the claimed 12-nautical-mile Mexican territorial sea and the territorial sea and contiguous zone of the United States. The treaty delimits, in principle, the lines of separation in the Gulf of Mexico and in the Pacific Ocean. The two governments then established the final lines which were represented, at reduced scales, on two maps affixed to the treaty. Copies of the treaty maps are annexed to this study. Article V of the treaty, which delimited the maritime boundaries, states: Article V The Contracting States agree to establish and recognize their maritime boundaries in the Gulf of Mexico and in the Pacific Ocean in accordance with the following provisions: A. The international maritime boundary in the Gulf of Mexico shall begin at the center of the mouth of the Rio Grande, wherever it may be located; from there it shall run in a straight line to a fixed point, at 25°57'22.18" North latitude, and 97°8' 19.76" West longitude, situated approximately 2,000 feet seaward from the coast; from this fixed point the maritime boundary shall continue seaward in a straight line the delineation of which represents a practical simplification of the line drawn in accordance with the principle of equidistance established in Articles 12 and 24 of the Geneva Convention on the Territorial Sea and Contiguous Zone. This line shall extend into the Gulf of Mexico to a distance of 12 nautical miles from the baseline used for its delineation. The international maritime boundary in the Gulf of Mexico shall be recognized in accordance with the map entitled International Maritime Boundary in the Gulf of Mexico, which the Commission shall prepare in conformity with the foregoing description and which, once approved by the Governments, shall be annexed to and form a part of this Treaty. B. The international maritime boundary in the Pacific Ocean shall begin at the westernmost point of the mainland boundary; from there it shall run seaward on a line the delineation of which represents a practical simplification, through a series of straight lines, of the line drawn in accordance with the principle of equidistance established in Articles 12 and 24 of the Geneva Convention on the Territorial Sea and the Contiguous Zone. This line shall extend seaward to a distance of 12 nautical miles from the baselines used for its delineation along the coast of the mainland and the islands of the Contracting States. The international maritime boundary in the Pacific Ocean shall be recognized in accordance with the map entitled International Maritime Boundary in the Pacific Ocean, which the Commission shall prepare in conformity with the foregoing description and which, once approved by the Governments, shall be annexed to and form a part of this Treaty. C. These maritime boundaries, as they are shown in maps of the Commission entitled International Maritime Boundary in the Gulf of Mexico and International Mari-

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time Boundary in the Pacific Ocean, shall be recognized as of the date on which this Treaty enters into force. They shall permanently represent the maritime boundaries between the two Contracting States; on the south side of these boundaries the United States shall not, and on the north side of them Mexico shall not, for any purpose claim or exercise sovereignty, sovereign rights or jurisdiction over the waters, air space, or seabed and subsoil. Once recognized, these new boundaries shall supersede the provisional maritime boundaries referred to in the Commission’s Minute No. 229. D. The establishment of these new maritime boundaries shall not affect or prejudice in any manner the positions of either of the Contracting States with respect to the extent of internal waters, of the territorial sea, or of sovereign rights or jurisdiction for any other purpose. E. The Commission shall recommend the means of physically marking the maritime boundaries and of the division of work for construction and maintenance of the markers. When such recommendations have been approved by the two Governments the Commission shall construct and maintain the markers, the cost of which shall be equally divided between the Contracting States. The treaty has been ratified by both states and ratifications were exchanged in Washington, D.C. April 18, 1972. ANALYSIS. The Gulf of Mexico sector of the maritime boundary offers a unique solution to the problem of maritime boundaries tied to ambulatory features. The Mexico-United States terrestrial boundary reaches the sea in the Rio Grande. The river, which is subject to wide fluctuations in level and in course, is particularly susceptible to changes at its mouth. Seeking a relative degree of permanence in the maritime boundary, the two countries agreed that the point of origin would be the center of the mouth of the river, wherever it may be. The second point would be situated 2,000 feet due east of the midpoint of the river mouth at the time of the treaty (in effect at the time of the mapping of the river immediately after the signature of the document). Point one may meander with the mouth but point two will remain constant as a hinge. As a consequence, the stability of most of the boundary is assured. Finally, an equidistance boundary was constructed from the mouth of the river to the twelve-nautical mile limit measured from the respective low-water baselines and this point of intersection was chosen as the terminal point of the maritime boundary. In fact, the equidistance line did not vary to a great degree from the straight line segment between two points two and three. The two governments, however, sought a simple limit which would be practical to administer and which would not cause difficulties for fishing craft operating with unsophisticated navigational gear. Provisions exist to establish two markers on the ground, one in each state, to assist in the visual determination. of position relative to the maritime boundary. The final segment of the boundary is formed by the great circle connecting the two points. The values of the points, on the North American datum, are given on the attached maps of the boundary. The very nature of the coastline, which is smooth and gently arcuate, favored the simplification of the boundary. The maritime boundary in the Pacific also followed the principle of equidistance but with a measure of simplification particularly near the continental shore. Full value, as basepoint, was given to the Mexican Islas los Coronados which were situated to the

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south of the terrestrial boundary. The maritime limit from the shore to the point where the islands began to affect the equidistant line was simplified by an equal exchange of territory. The recalculation of a “terminal” point on the line affected by the Coronados, i.e., the first point after leaving the land terminus, involved a transfer of 608,141 square meters from Mexico to the United States and 608,139 square meters from the United States to Mexico. The difference is transfers were a mere 2 square meters. (Note: The transfers, of course, apply only to the differences between the practical lateral line and the “simplified” line agreed upon in the treaty.) The final segments of the boundary were constructed by equidistance on specially constructed large-scale charts and verified by “computer” calculations to eliminate problems due to projections and to mechanical deficiencies, e.g., width of line of chart, distortion due to instability of base map, if any, etc. As in the Gulf of Mexico, the segments between turning points relate to the great circles which connect the points. The final point of the maritime boundary is precisely 12 nautical miles from a cape on the western side of Point Loma (California) and one on the northwest shore of the northern island of los Coronados.

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Document 4.6 TREATY ON MARITIME BOUNDARIES BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED MEXICAN STATES DONE AT MEXICO CITY May 4, 1978 (with map) The Government of the United States of America and the Government of the United Mexican States: Considering that the maritime boundaries between the two countries were determined for a distance of twelve nautical miles seaward by the Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary Between the United States of America and the United Mexican States, signed on November 23, 1970; Taking note of the Decree adding to Article 27 of the Political Constitution of the United Mexican States to establish an Exclusive Economic Zone of Mexico outside the Territorial Sea, and of the Fishery Conservation and Management Act of 1976 establishing a fishery conservation zone off the coast of the United States; Bearing in mind that, by an exchange of notes dated November 24, 1976, they provisionally recognized maritime boundaries between the two countries between twelve and two hundred nautical miles seaward in the Gulf of Mexico and the Pacific Ocean; Recognizing that the lines accepted by the exchange of notes dated November 24, 1976, are practical and equitable, and Desirous of avoiding the uncertainties and problems that might arise from the provisional character of the present maritime boundaries between twelve and two hundred nautical miles seaward. Have agreed as follows: ARTICLE I The United States of America and the United Mexican States agree to establish and recognize as their maritime boundaries in the Gulf of Mexico and in the Pacific Ocean, in addition to those established by the Treaty of November 23, 1970, the geodetic lines connecting the points whose coordinates are: In the Western Gulf of Mexico GM. W-1 25°58'30.57" Lat. N. GM. W-2 26°00'31.00" Lat. N.

96°55'27.37" 96°48'29.00"

Long. W. Long. W.

NOTE: (Reproduced from 17 International Legal Materials (ILM), pp. 1073–1075 (1978). The U.S. Fishery Conservation and Management Act appears at 15 I.L.M. 634 (1976).

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Chapter Four: Appendix Four GM. W-3 GM. W-4

26°00'.00" Lat. N. 25°59'48.28" Lat. N.

95°39'26.00" 93°26'42.19"

Long. W. Long. W.

In the Eastern Gulf of Mexico GM. E-1 25°42'13.05" Lat. N. GM. E-2 25°46'52.00" Lat. N. GM. E-3 25°41'56.52" Lat. N.

91°05'24.89" 90°29'41.00" 88°23'05.54"

Long. W. Long. W. Long. W.

In the Pacific Ocean OP-1 32°35'22.11" Lat. N. OP-2 32°37'7.00" Lat. N. OP-3 31°07'58.00" Lat. N. OP-4 30°32'31.20" Lat. N.

117°27'49.42" 117°49'31.00" 118°36'18°00" 121°51'58°37"

Long. Long. Long. Long.

W. W. W. W.

The coordinates of the geodetic points referred to above were determined with reference to the 1927 North American Datum. ARTICLE II North of the maritime boundaries established by Article I, the United Mexican States shall not, and south of said boundaries, the United States of America shall not, claim or exercise for any purpose sovereign rights or jurisdiction over the waters or seabed and subsoil. ARTICLE III The sole purpose of this Treaty is to establish the location of the maritime boundaries between the United States of America and the United Mexican States. The maritime boundaries established by this Treaty shall not affect or prejudice in any matter the positions of either Party with respect to the extent of internal waters, of the territorial sea, of the high seas or of sovereign rights or jurisdiction for any other purpose. ARTICLE IV This Treaty shall be subject to ratification and shall enter into force on the date of exchange of the instruments of ratification which shall take place in Washington, D.C. at the earliest possible date. DONE at Mexico, May 4, 1978, in the English and Spanish languages, both texts being equally authentic. FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA (Signature)

FOR THE GOVERNMENT OF THE UNITED MEXICAN STATES (Signature)

Treaty establishing the Maritime Boundaries between Mexico and the United States in the Gulf of Mexico and the Pacific Ocean of May 4, 1978.

Note: This map is reproduced from Three Treaties establishing Maritime Boundaries between the United States and Mexico, Venezuela, and Cuba. Senate, Exec. Report No. 96–49, 96th Congress, 2nd Session, June 12, 1980.

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MARITIME DELIMITATION TREATY BETWEEN THE GOVERNMENT OF THE UNITED MEXICAN STATES AND THE REPUBLIC OF HONDURAS DONE AT TEGUCIGALPA, HONDURAS April 18, 2005 The Government of the United Mexican States and the Republic of Honduras, hereafter “the Parties,” WISHING to delimit their Exclusive Economic Zones pursuant to what was stipulated in the United Nations Convention on the Law of the Sea of 10 December 1982; RECALLING that Article 74 of the United Nations Convention on the Law of the Sea prescribes that the delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referenced by Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution; ENGAGED in the negotiation of a delimitation treaty on the boundaries of their respective exclusive economic zones, initiated since July 2003, within the framework of the Caribbean Conference on Maritime Delimitation, which was convened by the government of the United Mexican States; RECOGNIZING the traditional relations of friendship and fraternity between the peoples and governments of both States; Have agreed to: Article I The maritime boundary between the United Mexican States and the Republic of Honduras in the Caribbean Sea is composed of geodesic lines that connect points located on the following coordinates: Point HM HM HM HM HM XIX

1 2 3 4 5

Latitude N N N N N N

17 17 18 19 19 19

47 57 11 08 26 32

06.175 23.163 34.596 29 .893 55.507 25.800

Longitude W W W W W W

86 85 85 85 84 84

09 54 31 07 45 38

18.380 31.411 07.461 12.812 02.434 30.660

Reference System ITRF ITRF ITRF ITRF ITRF

92/WGS 84 92/WGS 84 92/WGS 84 92/WGS 84 92/WGS 84 NAD 27

(1150) (1150) (1150) (1150) (1150)

NOTE: The point HM1, is trifinium shared by Mexico, Honduras and Belize. The point XIX, is trifinium shared by Mexico, Honduras and Cuba. The agreed maritime boundary is depicted, only for illustration purposes, in the map signed by the Plenipotentiaries and attached to this treaty. It is understood that, in case of differences between the map and the coordinates, the latter shall prevail.

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Article II The Parties agree to cooperate between them, in the delimited zone, for the effects of the protection and preservation of the marine environment, in accordance with the United Nations Convention on the Law of the Sea. The Parties may establish, at the opportune time, a Commission of Maritime Affairs, to coordinate such cooperation, and which may include programs in the following areas: a. b. c. d. e. f.

navigational safety; search and rescue; hydrographic studies; scientific investigations; preservation and environmental protection; and other areas of common interest.

These programs may be agreed upon by both Governments in future agreements. Article III Should the existence of transnational or shared hydrocarbon deposits between the States is to be ascertained, the Parties agree to share information to facilitate the knowledge about said deposits, and to formalize an agreement which will allow for the efficient and equitable exploitation of these findings. Article IV Neither Party may claim or effectuate, for any reason, sovereignty, sovereign rights or jurisdiction with respect to the waters, seabed and subsoil of the maritime areas of the other Party, as delimited by this Treaty. Article V Any difference that may arise regarding the interpretation or application of the present Treaty shall be resolved between both Governments though the procedures for the peaceful settlement of disputes established by Article 33 of the United Nations Charter. Article VI The present Treaty shall enter into force thirty (30) days from the date of the last communication by which the Parties notify each other in writing, through diplomatic means, the completion of the legal formalities required for that purpose. Signed in the city of Tegucigalpa, M.D.C., Honduras, the eighteenth of April twothousand five, in two original documents in the Spanish language, both texts being equally authentic. – For the Government of the United States of Mexico: The Secretary of Foreign Affairs, Luis Ernesto Derbez Bautista. – For the Government of the Republic of Honduras: the Secretary of Foreign Affairs, Leónidas Rosa Bautista.

Maritime Boundary between Mexico and Honduras.

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269

Document 4.8 AGREEMENT BETWEEN MEXICO AND GUATEMALA FOR THE SURVEILLANCE OF THE BORDER MARITIME ZONES IN THE PACIFIC OCEAN, BOTH IN THE TERRITORIAL SEA AND IN THE EXCLUSIVE ECONOMIC ZONE, EFFECTED BY AN EXCHANGE OF NOTES SIGNED AT TAPACHULA, CHIAPAS (MEXICO) August 17, 1989 Tapachula, Chiapas (Mexico), August 17, 1989 To His Excellency, Lic. Mario Palencia Lainfiesta, Minister of Foreign Relations of Guatemala, Present. Mr. Minister [of Foreign Affairs]: I have the honor to refer to your Note, dated today, whose tenor is the following: “Your Excellency: I have the honor to refer to the surveillance in the Territorial Sea and in the Economic Exclusive Zone of each country in the Pacific Ocean, to avoid fishing infractions, established until now through oral agreements. After the Parties confirmed that the maritime boundary of the Exclusive Economic Zone in the Pacific Ocean that was unilaterally established by the Government of Mexico, takes effect under the reservation of rights by the Government of Guatemala that was accepted by the Government of Mexico, the Ministry of Foreign Affairs of Guatemala informs the Secretariat of Foreign Relations of Mexico that the Government of Guatemala considers appropriate – without prejudice that in the future, through an agreement between the two countries, the definite maritime boundary may be established – that the oral agreements be formalized in the following manner: 1. – That in the territorial sea of Guatemala and in the territorial sea of Mexico, reaching out up to a distance of 12 nautical miles seaward, in front of the mouth of Rio Suchiate, a non-fishing area (Zona de veda a la pesca) is established, comprised between the alignment of the Guatemalan lighthouses, established to indicate the proximity of the maritime boundary, in the geographical coordinates 14°31'46, 280" North Latitude and 92°13'17, 436" West Longitude, the anterior lighthouse; and 14°31'55", North Latitude and 92°13'09, 335" West Longitude, the posterior lighthouse, and the alignment of the Mexican lighthouses, established with the same purpose, in the geographical coordinates 14°33'33, 858" North Latitude and 92°15'17, 782" West Longitude, the anterior lighthouse, and 14°33'41, 126" North Latitude and 92°15'11, 055" West Longitude, of the posterior lighthouse. The geographical coordinates of the alignment of the Guatemalan lighthouses, 12 nautical miles seaward, are: 14°22'41, 18" North Latitude and 92°21'32, 96" West Longitude; and those of the Mexican lighthouses at the same distance are 14°24'32, 39" North Latitude and 92°23'38, 47" West Longitude, and 2. That in the Exclusive Economic Zone of Guatemala and in the Exclusive Economic Zone of Mexico, placed immediately to the maritime boundary established by Mexico in the Pacific Ocean, each country is to establish within its respective jurisdiction a non-fault strip (Franja de tolerancia) of a two-mile width in which it

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is to be excused as a non-sanctionable error of navigation, the presence of foreign vessels engaged in fishing activities, provided that the infractor is not a recidivist and obeys, of course, to the instructions received to get out of said strip. In case of agreement by the Government of Mexico, the affirmative answer of Your Excellency to the present note, shall constitute an agreement between both Governments for the surveillance of the border maritime zones in the Pacific Ocean, both in the territorial sea and in the Exclusive Economic Zone.” As an answer I have the pleasure of informing Your Excellency that my Government agrees to the terms of the Note transcribed above, constituting on Agreement between both Governments for the surveillance of the border maritime zones in the Pacific Ocean, both in the territorial sea and in the Exclusive Economic Zone. I avail myself of this opportunity to reiterate to his Excellency the assurances of my highest and most distinguished consideration. Fernando Solana Secretary of Foreign Affairs NOTE: Mexico’s Secretariat of Foreign Affairs (SRE) reports that this bilateral agreement was not published in the Diario Oficial. The agreement was effected through an Exchange of Notes at Tapachula, Chiapas, Mexico, on August 17, 1989. This agreement is not subject to ratification and it entered into force on August 17, 1989.

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Document 4.9 LIMITS IN THE SEAS No. 4 STRAIGHT BASELINES: MEXICO August 30, 1968 The Government of Mexico on August 29, 1968 decreed straight baselines for the measurement of the territorial sea in the Gulf of California. The Decree, published in the Diario Oficial of August 30, 1968, amended the definition of the territory of the Republic as follows: Gustavo Diaz Ordaz, Constitutional President of the United Mexican States, to their inhabitants be it known: CONSIDERING That in conformity with Article 42, Section V of the Political Constitution of the United Mexican States, amended by the decree of the 6th of January 1960, “The National Territory Includes: .......................................................... V. The waters of the territorial seas in the extent and terms which international law establishes and the internal seas;” That the Convention on the Territorial Sea and the Contiguous Zone opened for signature in Geneva on the 29th of April 1958 and ratified by Mexico on the 17th of June 1966 established the international rules in force for determining the width of the territorial sea; That in conformity with paragraph 1, Article 4 of the cited Convention, “In localities where the coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight base lines joining appropriate points may be employed in drawing the base line from which the breadth of the territorial sea is measured,” if in accordance with paragraph 2 of the same article such lines do not depart to any appreciable extent from the general direction of the coast and the sea area lying to the land side of these lines are sufficiently closely linked to the land domain to be subject to the regime of internal waters; That the previous provisions, incorporated into our internal law through the modifications of Article 17 of General Law of National Property accomplished by the decree of the honorable Congress of the Union of the 29th of December 1967, justify in the judgment of the Executive the employment of the system of straight base lines for the location of our territorial sea inside the Gulf of California in that part where the islands situated along the respective coasts permit the drawing of such lines without departing an appreciable manner from the general direction of the same [the coasts] – a concept which does not have mathematical precision, as the International Court of Justice has recognized; That the two systems of base lines running from the entrance of the Gulf of California in a general northwesterly direction along the west and east coasts of the Gulf arrive respectively at the southwesterly and southeasterly extremities of San Esteban Island; and that as a result of this the waters located between such base lines and the coasts of

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Baja California and of Sonora become internal waters in conformity with Article 5 of the Convention on the Territorial Sea and the Contiguous Zone; That in virtue of this and without prejudice to the determination of other straight base lines which may be justified for the measurement of our territorial sea in the Pacific Ocean and in the Gulf of Mexico I have been pleased to dictate, based on Section I of Constitutional Article 89 the following: DECREE Article I. The Mexican Territorial Sea in the interior of the Gulf of California will be measured from the base line running: 1. Along the length of the west coast of the Gulf from the point called Punta Arena in the territory of Baja California following the low water line in a northwesterly direction to the point called Punta Arena de la Ventana from there in a straight base line to the point called Roca Montana in the southern extremity of Cerralvo Island; from there along the low water line of the eastern coast of that island to the northern extremity of it; from there in a straight base line to the Arrecife de las Focas; from there in a straight base line to the most easterly point of Espiritu Santo Island; from there following the eastern coast of that island to the northernmost point of it; from there in a straight base line to the southeasterly extremity of La Partida Island; from there following the east coast of that island to the group of small islands called “Los Islotes” located at the northernmost extremity of the same La Partida Island; from the northern extremity of the mentioned small islands in a straight base line to the southeastern extremity of San Jose Island; from there in a generally northern direction along the low water line of the eastern coast to the point where the coast of that island changes its direction toward the northwest; from that point in a straight base line to the island called Las Animas; from the northern extremity of that island in a straight base line to the northwest extremity of the Island Santa Cruz; from there in a straight base line to the southeastern extremity of Santa Catalina Island; from there following the low water line of the eastern shore of that island to the northern extremity of it; from there in a straight baseline to the place called Punta Lobos in the northwest extremity of Carmen Island; from there in a straight base line to the northwestern extremity of Coronados Island; from there in a straight base line to a point on the coast of the Peninsula of Baja California called Punta Mangles; from there along the low water line of the coast to another point on the coast called Punta Pulpipo; from there in a straight base line to the eastern extremity of the San Ildefonso Island; from there in a straight base line to a point on the coast of the Peninsula of California called Punta Santa Teresa; from there along the low water line of the coast of the Peninsula to the point called Punta Concepcion; from there in a straight base line to the eastern extremity of Santa Ines Island; from there following the eastern coast of that island along the low water line of it to the northern extremity of it; from there in a straight base line to the eastern extremity of Tortuga Island; from there following the low water line of the northern coast of that island to the westernmost point of it; from there in a straight base line to a point on the Peninsula of Baja California called Punta Baja; from there following the low water line along the coast of the Peninsula to the point called Cabo San Miguel; from there in a straight base line to the southwestern extremity of the San Esteban Island.

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2. Along the east coast of the Gulf of California from a point called Punta San Miguel in the State of Sinaloa following the low water line in a generally northwestern direction to another point on the same coast called Cabo Arco in the State of Sonora; from there in a straight base line to another point on the same coast called Puerto San Carlos; from there following the low water line of the coast to a point on the same coast called Punta Doble; from there in a straight base line to the southeastern extremity of the San Pedro Nolasco Island; from there following the low water line of the western coast of that island to the northern extremity of it; from there in a straight base line to a point on the coast called Punta Lesna; from there following the low water line of the eastern coast of the Gulf to a point on the coast of the State of Sonora called Punta Baja; from there in a straight base line to the southern extremity of the Turners Island; from there in a straight base line to the southeastern extremity of the San Esteban Island. TEMPORARY ARTICLES ARTICLE 1. This decree will enter into force on the day of its publication in the Diario Oficial of the Federation. ARTICLE 2. The straight base lines referred to in this Decree will be clearly indicated on the marine charts which will be given adequate publicity in accordance with the provisions of paragraph 6 of Article 4 of the Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958.

1

Northeasterly, See Errata October 5, 1968, Diario Oficial.

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In compliance with the provisions of Fraction 1, Article 89 of the Political Constitution of the United Mexican States and for its publication and observance I promulgate this regulation in the seat of the Federal Executive Power in the City of Mexico on the 29th day of the month of August of 1968. The decree creates, in effect, two systems of segmented straight baselines, one on the east coast of the Gulf and one on the west, which join at San Esteban Island approximately 175 nautical miles from the head of the Gulf. The effect of the law is to add approximately 30% of the Gulf of California to the internal waters of the State. The straight baselines, which alternate with stretches of mean low water shore line of the mainland and of islands, extend as follows: Points West Coast

Length

Punta Arena-Roca Montana

39.4

N. cape Cerralvo I. – las Focas las Focas – Punta Lobos (Espiritu Santo) North cape (Espiritu Santo) – SE cape (Partida) Los Isolotes (Partida) – San Jose I. San Jose – Las Animas

3.9 18.0 1.0

Las Animas – I. Santa Cruz

15.7

Santa Cruz – I. Santa Catalina Santa Catalina – I. Carmen I. Carmen – I Coronados I. Coronados – Punta Mangles Punta Pulpito – I. San Ildelfonso

17.6 26.5 11.5 10.9 6.6

I. San Ildelfonso – Punta Santa Teresa Punta Concepcion – Santa Ines I. Santa Ines – I. Tortuga

6.8 10.9 23.5

I. Tortuga – Punta Baja Cabo San Miguel – I. San Esteban

27.5 30.3

Cabo Arco – Puerto San Carlos Punta Doble – I. San Pedro Nolasco

7.3 14.0

I. San Pedro Nolasco – Punta Lesna Punta Baja – I. Turners

13.4 34.9

I. Turners – I. San Esteban

12.2

19.5 6.0

Comments Parallel to coast at a distance of approximately 8–10 miles. Convergent to the coast. Follows general trend of coast. Diverges from the coast at an angle of c. 60° Follows general trend of coast at a distance of c. 15 nautical miles. Same Same Convergent to coast. Rejoins mainland. Diverges from coast at an angle of c. 40°. Rejoins mainland. Parallel to coast; closes off bay. Divergent to coast line at an angle of c. 40°. Rejoins mainland. Divergent from coast at an angle of c. 50°. Serves to close Gulf. Closes small bay. Divergent from coast at an angle of c. 40°. Rejoins mainland. Encloses bay-like waters contained between I. Tiburon and mainland. Closes off northern portion of Gulf in conjunction with west coast line.

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The twenty-two segments of straight baselines total 357.4 nautical miles in length. The average length of a segment is 16.24 nautical miles while the longest, from Punta Arena to Isla Cerralvo, measures 39.4 nautical miles. The lines, which follow the coast at a distance between 10 and 15 nautical miles on the average, extend to approximately 25 miles from the mainland at Isla Tortuga and Isla San Esteban. In the main, the Mexican baselines connect islands which may be judged to infringe the coast. However, in four instances the straight baselines do not conform to the general trend of the coast. The lines enclosing the islands of Las Animas, San Ildelfonso, Tortuga and San Pedro Nolasco all diverge from the coast at angles greater than 40 degrees. These angles are maintained over both the local and general trends of the coast. Moreover, straight baselines serve to cut off nearly 30% of the area of the Gulf from the previously defined high seas. Such a move, it would appear, could be justified only on the basis of historic waters as claimed over a considerable period of time. Sole and intensive use by local inhabitants would need to be established. However, no such claim has been discovered in the public record. It should be noted that the northern quarter of the Gulf is virtually devoid of islands. Moreover, the coast is relatively smooth, although a few bay-like indentations exist. As a result, straight baselines for the section would add very little to the internal waters of Mexico. (Emphasis added by this author).

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Chapter Four: Appendix Four Document 4.10 CORRIGENDUM TO THE “DECREE THAT DELIMITS THE MEXICAN TERRITORIAL SEA IN THE INTERIOR OF THE GULF OF CALIFORNIA” (that was published in the Diario Oficial of August 30, 1968), Published in the Diario Oficial of October 5, 1968

In the “Diario Oficial de la Federación,” No. 53, Volume CCLXXXIX of Friday August 30, 1968, the “Decree that Delimits the Mexican Territorial Sea in the Interior of the Gulf of California” was published. This publication contains these errors: 1. Page eight, right column, line five, Fifth Whereas (Quinto Considerando), reads: “. . . the southwestern and southeastern tips of Isla San Esteban . . .”; it should read: “. . . the southwestern and northeastern tips of Isla San Esteban.” 2. Page eight, right column, seven line before said column ends, the first paragraph of the Sole Article (Artículo Unico) reads: “until the northeastern tip of Isla Santa Cruz . . .”; it should read: “. . . until the northeastern tip of Isla Santa Cruz . . .” 3. Page nine, left column, first line reads: “In the northwestern tip of Isla Carmen . . .”; it should read: “in the northwestern tip of Isla Carmen.” 4. Page nine, left column, second line, reads: “. . . until the northeastern tip of Isla Coronados . . .”; it should read: “. . . until the northwestern tip of Isla Coronados.” 5. Page nine, right column, ninth line, second paragraph of the Decree’s Sole Article (Artículo Unico), reads: “. . . until the southeastern tip of Isla San Esteban,” it should read: “Until the northeastern tip of Isla San Esteban.” 6. Page nine, right column, line fourteen, Second Transitory Article (Segundo Artículo Transitorio), reads: “The straight baselines to which this Decree refers shall be indicated . . .” it should read: “The drawing (Trazado) to which this Decree refers shall indicate . . .” 7. In all the cases (pages eight and nine) where the expression “straight line base” (Línea recta de base) is used; it should read: “straight baseline.” (Línea de base recta). NOTE: Reproduced from the Decree (Fe de Erratas) published in the Diario Oficial of October 5, 1968.

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Document 4.11 MEMORANDUM OF UNDERSTANDING (MODUS VIVENDI ) BETWEEN MEXICO AND BELIZE ON THE MATTER OF INNOCENT PASSAGE OF SHIPS OF THE MEXICAN NAVY THROUGH THE TERRITORIAL SEA, EFFECTED THROUGH AN EXCHANGE OF NOTES IN MEXICO CITY April 26, 1990 To Your Excellency, Mr. Said Musa, Minister of Foreign Affairs, Economic Development and Education of the Government of Belize. Mexico City, April 26, 1990 Your Excellency: I have the honor to refer to the provisions in force of international law applicable to the innocent passage of ships of the Mexican Navy through the Territorial Sea of Belize, and reciprocally with respect to the warships of Belize through the Mexican Territorial Sea, and to request, on behalf of the Government of the United Mexican States, to confirm whether the criterion expressed below, is shared by Your Excellency’s Government. The notion of innocent passage is regulated by the international law of the sea, as reflected in the United Nations Convention on the Law of the Sea of 1982, that both the Government of Mexico and the Government of Belize have ratified since 1983, which also reflects what has been previously codified on this matter by the Convention on the Territorial Sea of 1958. Section 3 of Part II of the 1982 Convention, establishes that all the vessels, whether surface or not, enjoy the right of innocent passage through the territorial sea, subject to the provisions established by Articles 17 through 32 of said Convention, and specifically in the case of warships in Articles 29 through 32. I avail myself of this opportunity to renew to His Excellency the assurances of my highest consideration. Fernando Solana Secretary of Foreign Affairs

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Chapter Four: Appendix Four Document 4.12 Evolution Table of on Exclusive Economic Zone (EEZ)

Concept 1 Name 2 Physical Location 3 Sovereign Rights 3.1 Exploring & Exploiting All Natural Resources 3.1(i) Living & Non-Living 3.2 Conserving & Managing 3.3 Over Superjacent Waters Over Seabed 3.4 Other Economic Activities 3.4(i) Energy Production from Water 3.4(i)(ii) Currents & Winds 4 Jurisdiction 4.1 Islands 4.1(i) Installations 4.1(ii) Structures 4.2 Conduct Scientific Research 4.3 Protect/Preserve Marine Environment 5 Other Rights & Duties 5.1 Coastal State’s Regard to Rights & Duties of Other States 5.2 To Act in a Manner Compatible to the LOS Convention 6 Rights Over Seabed & Subsoil as Part of Continental Shelf Regime 7 Breadth 8 Rights & Duties of Other States in the EEZ 8.1 Freedom of Navigation 8.2 Freedom of Overflight 8.3 Freedom of Laying Cables/ Pipelines 8.4 Other Lawful Uses Associated with Freedoms 9 Conflict Resolution 9.1 Resolution Based on Equity 9.2 Other Relevant Circumstances 10 Landlocked States 10.1 Right to Participate 10.2 On Equitable Basis 10.3 Appropriate Surplus 11 Delimitation of the EEZ 11.1 Between States with Opposite Coasts

S52 M70 L70 SD72 Y72 K72 C/MX/V73 LOSC82 X X X

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Table (cont.) Concept

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11.2 With Adjacent Coasts 11.3 Based on International Law 11.3(i) Referred to International Criminal Court 11.3(ii) With Agreement 11.3 (ii)(i) Without Agreement 11.3(iii) Pending Agreement 11.3(iv) Provisional Arrangements 11.4 When There is an Agreement Between States

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Note: Table Key Abbreviations

Full title of declaration

S52 M70 L70 SD72 Y72 K72 C/MX/V72 LOSC82

Santiago Declaration, August 18, 1952 Montevideo Declaration, May 8, 1970 Lima Declaration (Declaration of Latin American States), August 8, 1970 Santo Domingo Declaration, June 8, 1972 Yaounde Declaration, June 30, 1972 Kenya Declaration, August 7, 1972 Colombia, Mexico & Venezuela Draft Treaty, April 2, 1973 Law of the Sea Convention, 1982

Chapter Five Marine Scientific Research in Mexico: Its Legal Regime under Mexican Law and International Law 1. Introduction The legal regime which currently governs the conduct of marine scientific research in areas under the sovereignty or jurisdiction of the coastal State is among the most novel and delicate questions added to the modern corpus of international law of the sea.1 It was not until this important question was fully discussed by UNCLOS III,2 and then incorporated into the 1982 United Nations Convention on the Law of the Sea, that the international legal community was able to culminate its effort in codifying this, until then, customary but unwritten component of the law of the sea. The progress made by UNCLOS III in preparing a set of 28 articles (Arts. 238–265 placed under Part XIII of the Convention), which specifically addressed the question of marine scientific research, is in clear contrast to the rather scanty

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Until circa 1960, international law did not have any specific regulatory regime applicable to the conduct of marine scientific research. Therefore, marine scientific activities principally conducted at that time by vessels beyond the territorial sea (regarded to have a breadth of 3-nautical miles by major maritime powers) took place as one of the freedoms traditionally associated with the high seas. In other words, marine scientific research was conducted under principles recognized by customary international law. The topic of marine scientific research was included in the “List of Topics and Questions relating to the Law of the Sea” and approved on August 18, 1972 by the Commission for the Peaceful Uses of the Seabed and Ocean Floor beyond the Limits of National Jurisdiction. This topic appeared in relation with: (a) the Continental shelf (Item 5.6); the Exclusive economic zone (Item 6.9); and under the special category of Marine Scientific Research (MSR) in Item 13: §13.1 Nature, characteristics and objectives of MSR; §13.2. Access to scientific information; and §13.3. International cooperation. For a discussion of marine scientific research in the four Geneva Conventions, see infra notes 27 et seq. in this chapter.

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and superficial attention this topic received by the 1958 Geneva Conference on the Law of the Sea.3 The tremendous importance marine scientific research has in the furtherance of knowledge regarding the life and health of the oceans, its natural resources both living and mineral, the complex interactions between the hydrosphere and other parts of our planet, as well as their direct implications upon humankind, only adds to the delicacy of determining which legal regime must govern this important activity. Accordingly, for the benefit of the community interest, no undue restrictions are to be imposed to the conduct of marine scientific research that adheres to the language of Part XIII of the 1982 Convention. In consonance with that public policy, all States should promote the greatest production and widest sharing and dissemination of the results of marine scientific research.4 Since 1970, many countries in Latin America deemed it a necessity to incorporate, in an international convention, the rights and obligations of both the coastal and the researching State. The convention would regulate the conduct of marine scientific research in the marine spaces under the control of the coastal State.5 Since the early stages of UNCLOS III, the legal regime of marine scientific research has been intertwined with a triad of claims firmly advanced by certain developing countries that included: (i) the explicit consent of the coastal State; (ii) the right of its marine scientists to participate in said research; and (iii) the right to receive data and the final results. These claims became the legal core of marine scientific research as a novel concept first articulated by the Group of 3

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The 1958 Geneva Conference on the Law of the Sea, convoked by the United Nations in Geneva, Switzerland, from February 24 to April 27, 1958 and attended by 86 States, formulated four conventions. Only the Convention on the Continental Shelf (in only one provision, Art. 5, paras. 1 and 8), explicitly addressed the question of marine scientific research. The Convention on the High Seas did not explicitly include marine scientific research as one of the four freedoms of the high seas enunciated in its Article 2. However, since this enumeration was not exhaustive but merely indicative, it was interpreted that under the Geneva regime there was a freedom of scientific research among the freedoms of the high seas [jointly with] “others which are recognized by the general principles of international law,” as prescribed by the final paragraph of Article 2. See R.R. Churchill and A.V. Lowe, The Law of the Sea (3d. ed., 1999) at 400–401; and Alfred H.A. Soons. Marine Scientific Research and the Law of the Sea, (Kluwer, 1982) at 49–55. See also Yearbook of the International Law Commission 1955, Vol. II at 21. See Myres S. McDougal and W.T. Burke. The Public Order of the Oceans (Yale Univ. Press, 1965) at 98. One of the first references on this subject is found in numeral 5 of the “Common Principles of the Law of the Sea” enunciated by the Lima Declaration of Latin American States on the Law of the Sea of 1970 and in the Santo Domingo Declaration of 1972. The complete text of these declarations is reproduced in the Appendix to Chapter Three of this book.

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Latin American States and later supported by the Group of 77 at said conference. Accordingly, the principle of obtaining the consent of the coastal State6 was advanced as the fundamental legal premise upon which Part XIII of the 1982 Convention was to be formulated. The principle of consent traces its origin to the language used in Article 5, para. 8, of the Convention on the Continental Shelf of 1958,7 that resulted from the work of the International Law Commission (ILC). Given the widespread support received by this principle at UNCLOS III by many developing countries, its inclusion in the final language of the 1982 LOS Convention may be characterized as a diplomatic victory of the Group of 77 in general, and of Latin America in particular. However, from the perspective of developed States, this very same principle has been identified as posing problems or erecting obstacles to the conduct of marine scientific research.8 For example, in the declaration made by Germany upon its accession to the 1982 LOS Convention, the corresponding diplomatic note read in part: Although the traditional freedom of research suffered a considerable erosion by the Convention, this freedom will remain in force for States, international organizations and private entities in some maritime areas, e.g., the seabed beyond the continental shelf and the high seas. However, the exclusive economic zone and the continental shelf, which are of particular interest to marine scientific research, will be subject to a consent regime . . . In this regard, the promotion and creation of favorable conditions for scientific research, as postulated by the Convention, are general principles governing the application and interpretation of all relevant provisions of the Convention.9

At the bilateral level, marine scientific research involving Mexico and the United States has been an area where open communication and friendly cooperation have gradually resulted in steady improvement and mutual benefits for both countries.

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The “Consent regime” traces back its historical origin to Article 5, para. 1, of the Continental Shelf Convention of 1958. See Barbara Kwiatkowska. The 200 Mile Exclusive Economic Zone and the New Law of the Sea. Martinus Nijhoff Publishers (1989) at 134. For a discussion of this article, see infra notes 39 and 46 and the accompanying texts. From a sample of problems or obstacles associated with the consent regime, see Warren S. Wooster (ed.), Freedom of Oceanic Research (Crane & Russak, 1973), passim; J.M. Van Dyke (ed.), Consensus and Confrontation: The U.S. and the LOS Convention (LSI/ Univ. of Hawaii, 1985) at 437–441; and D.A. Ross and T. Landry. MSR Boundaries and the LOS (Woods Hole, 1987) at 1–27. Germany’s declaration was made on October 14, 1994. For the complete text of it, see “Declarations and Statements upon UNCLOS Ratification,” at the U.N. website, Oceans and the Law of the Sea, Division of Ocean Affairs and the Law of the Sea at 23–24 (emphasis added).

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According to the latest data provided by Mexico’s Secretariat of Foreign Affairs (SRE, 2010), out of a total of 330 MSR projects by U.S. vessels conducted within Mexican marine spaces, Mexico granted each and every one. In the history of marine scientific research (MSR) between the two countries, this is the largest number of MSR clearances ever granted by Mexico to the United States over a fifteen year period (Jan. 1994–Dec. 2009).10 Given their geographical contiguity, both countries have a long established relationship that can be traced back to the 1870’s. Later, it was continued in the early 1900’s with the U.S. Fishing Commission and then expanded with the expeditions on the Gulf of California and Mexico’s offshore islands by the California Academy of Sciences from 1929 to 1959. These seminal expeditions greatly contributed to building significant marine scientific research projects that would benefit the scientific and academic communities of both countries,11 and the international scientific community at large. A. Historical Significance of Marine Scientific Research For thousands of years, humans conducted their marine work and those activities that placed them in contact with the marine environment without any need of marine scientific research. In the evolution of humankind, the study of marine sciences and the resulting marine scientific research may be validly characterized as a relatively new activity. Marine scientific research entered the realm of law of the sea and customary international law in the mid-19th century. For the most part, the conduct of marine scientific research beyond the limits of the coastal State was considered to be an extension of the freedom of the high seas, granted and protected by the then existing customary international law.12

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Information provided to the author by SRE in official communication No. DAN-00404, Dirección General para la América del Norte, Secretaría de Relaciones Exteriores (SRE), dated February 17, 2010. For additional information on the number of vessels, type of MSR and geographical areas involved, see Section 3 in this chapter: Clearances granted to the United States vessels for MSR Projects in Mexico, infra notes 77–86, and the accompanying texts. See also Documents 5.4 and 5.5 in Appendix Five at the end of this book. A bibliography compiled in 1982 by Richard A. Schwartzlose and J.R. Hendrickson, published jointly by Scripps Institution of Oceanography (SIO) and Mexico’s National Autonomous University (UNAM) under the title: Bibliography of the Gulf of California, lists 4,000 scientific works divided into 27 categories. This bibliography gives an idea of the wealth of valuable scientific articles, many of them co-authored by U.S. and Mexican scientists, and the closer relations on MSR that exist between the scientific and academic communities of both countries. See Churchill and Lowe, supra note 3 at 400. See also Gerard J. Mangone. The Effect of Extended Coastal State Jurisdiction over the Seas and Seabed upon Marine Scientific Research in ChoonHo Park (Ed.). Law of the Sea in the 1980’s. Honolulu, Hawaii (1983) at 294 et seq.;

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A leading commentator of the law of the sea has summarized this epoch in the following terms: Before UNCLOS I (1958), marine scientific research was not considered as being among the major fields of maritime activity. With a few exceptions, oceanographic investigations were confined to exploratory surveys and studies carried out in relatively limited areas of the oceans . . . Seaward of the territorial sea, maritime scientific research was regarded mostly as an expression of the freedom of the high seas (subject to possible coastal State rights and obligations regarding the continental shelf). Consequently, customary and conventional law of the sea with respect to marine scientific research was limited in scope.13

It was precisely under the enjoyment of this unbridled freedom of the high seas that Charles Darwin sailed on the ship Beagle from Devonport, England, on December 27, 1831.14 The object of the expedition was to complete the survey of Patagonia and Tierra del Fuego (commenced under Capt. King in 1826–1830) and to survey the coastal waters of Chile, Peru, and some islands in the Pacific, studying marine specimens. The final report of this famous expedition – as reflected in Darwin’s book – is reputed to be one of the most formidable scientific contributions to biology, zoology and geology in the history of humankind, and contributed to the development of his now famous theory on the origin of species. Another leading scientist that benefitted greatly from this freedom of oceanic research was Alexander von Humboldt, a German explorer and diplomat who conducted explorations in Asia and the Americas from 1799 to 1804 in Cuba, Colombia, Ecuador, Venezuela and Mexico.15 Among other extraordinary scientific accomplishments, Humboldt made scientific observations of the rich and powerful current in the Pacific Ocean offshore Peru, originally named after him but later on known as the “Peruvian Current.”16

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and Florian H. Th. Wegelein. Marine Scientific Research. Martinus Nijhoff Publishers (2005) at 24–25. Myron H. Nordquist, S. Rosenne and A. Yankov (Eds.) United Nations Convention on the Law of the Sea 1982. A Commentary. Center for Oceans Law and Policy, University of Virginia. Martinus Nijhoff Publishers, Vol. IV, Introduction at 429. Darwin volunteered his services as a “Naturalist” and after circumnavigating the world, the Beagle arrived back home on October 2, 1836, five years after her departure. See Charles Darwin. The Origin of the Species and the Voyage of the Beagle. With an Introduction by Richard Dawkings (Reprint of the first U.K. edition of 1839). Knopf, New York (2003) at 17. See Irving A. Leonard. Colonial Travelers in Latin America. Knopf, New York (1972); and Ensayos sobre Humboldt (Essays on Humboldt). UNAM, México (1962). Because of the beneficial effects of this current on fishing activities offshore Peru, this current was used by this country to formulate the so-called “Bioma Theory” as among the scientific factors justifying Peru’s unilateral establishment of a 200-nautical mile “Maritime Zone”

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Both Darwin and Humboldt represent singular examples of the exercise of the freedom of oceanic research that coastal States practiced during the 18th and 19th centuries based on customary international law, in an era when no specific regulations had been established to control or regulate the conduct of marine scientific research beyond the limits of national jurisdiction. The major marine spaces of the law of the sea – such as the internal waters, the territorial sea, the contiguous zone and the high seas, for example – have been the result of an ancient and prolonged uniform practice by coastal States that eventually evolved into customary international law. As pointed out by Starke, “until recent times, international law consisted for the most part of customary rules.”17 It was not until the beginning of the 20th century, with the international conferences at The Hague in 1930 and at Geneva in 1958 and 1960, when the first efforts were made to codify in international conventions the regimes applicable to the traditional marine spaces and to the multiple uses of the seas that gradually had been developed throughout the passage of time and became generally accepted as a part of customary international law. Thus, the four traditional freedoms of the seas were made legally explicit in the Convention on the High Seas of 1958. These codification efforts involving the law of the sea have been continued by the technical work of UNCLOS III. The exclusive economic zone of 200 nautical miles, the notion of archipelagic waters, the right of passage through and over international straits, the right to construct artificial islands and the legal regime of marine scientific research based on the consent of the coastal State are, inter alia, some of the most recent additions to both conventional and customary international law.18 Recently, law of the sea specialists are of the opinion that the promotion and relative proliferation of marine scientific research can be attributed to the

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(jointly with Chile and Ecuador), formulated in the trilateral Santiago Declaration of 1952. For a discussion of this Declaration, see Chapter Four in this book. See J. Starke. Introduction to International Law (9th ed. 1984) at 34–38, in reference to customary international law. See also Shabtai Rosenne. Practice and Methods of International Law, Chap. 3: Customary International Law (Oceana, 1984) at 35 et seq.; Anthea Elizabeth Roberts. Traditional and Modern Approaches to Customary International Law, 95 A.J.I.L. (October 2001) at 757; Mark E. Villiger. Customary International Law and Treaties (Kluwer, 2nd ed.), 1997 and Anthony A. Amato. The Concept of Custom in International Law (Cornell U. Press, 1971). See, for example, Hugo Caminos and Michael Molitor. Perspectives on the New Law of the Sea: Progressive Development of International Law and the Package Deal, 79 A.J.I.L. 871; and Martin Lishexian Lee. The Interrelation between the Law of the Sea Convention and Customary International Law, 7 San Diego Int’l L. J. 405 (2006). See also the decisions by the International Court of Justice regarding the North Sea Continental Shelf Cases (February 20, 1969, for the concept of Opinio juris) and the case concerning the Delimitation of the Maritime Boundary in the Gulf of Maine Area (October 12, 1984).

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following factors: first, the fact that these activities became an indispensable precondition for the exploitation of the sea’s resources.19 For example, the acquisition of data proved to be indispensable for the exploration and exploitation of fisheries20 and for the localization and determination of the amount and type of oil and natural gas deposits in the continental shelf.21 And second, the Second World War literally catapulted scientific research into the oceans. This event immediately demonstrated the imperative necessity of linking marine research to military and strategic uses of the sea.22 The necessity of depending on marine scientific research to learn more about and combat the growing problems associated with the protection and preservation of the marine environment is of great importance. Given the considerable growth of human populations on a global scale, particularly in underdeveloped countries, and the intense process of industrialization taking place in developed and developing countries, the oceans are increasingly becoming a receptacle for all kinds of human and industrial waste, including toxic substances and hazardous materials.23 The importance of marine scientific research is present, for example, in the recent meteorological phenomena associated with the periodic occurrences of “El Niño” with its catastrophic consequences for fishing activities; in the destruction and chaos caused by the recent tsunami in Indonesia; and in the concerns triggered by Global Warming and its possible climatic threats. Other recent examples include the environmental disaster in the Gulf of Mexico resulting in the loss of lives and the massive oil spill of the BP’s offshore platform; and the considerable and alarming reduction of tuna, sharks and other commercial 19

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R.R. Churchill and A.V. Lowe. Marine scientific research and the transfer of technology (Chap. 16), The Law of the Sea (Third ed.) at 400; and Soons, Id. at 395–397. See Gotthilf Hempel and D. Pauly. Fisheries and Fishery Science in Their Search for Sustainability in John G. Field. Oceans 2020: Science, Trends and the Challenge of Sustainability (2002) at 109–135. Colin P. Summerhayes and K. Lochte. Ocean Studies for Offshore Industry including: The Energy Industry and its Marine Research Needs (Offshore Oil and Gas); Contribution of Oceanography to Offshore Oil and Gas Activities; Effects of Oil Pollution from Drilling in the North Sea, etc. in Ibid. at 137–162. See Churchill and Lowe and Soons in supra note 19. See also David P. Rogers et al., Marine Information for Shipping and Defense and Richard W. Spinrad. The Role of Marine Science: A U.S. Navy Perspective in Oceans 2020, supra note 19 at 163–183. See also Nordquist, supra note 13 at 429. See Soons, supra note 3 at 14–1; and also more recent studies on “State of the World Environment, 1972–1982. Report of the Executive Director of UNEP to the Governing Council, January 29, 1982. UN Doc. UNEP/GC.10/3 (1982); Cleaner Oceans: The Role of the IMO in the 1990’s. IMO News, No. 3 at 2 (1990); Summary Report of the Second International Meeting of Legal Experts on Particularly Sensitive Sea Areas. IMO Doc. MEPC 35/INF.17 (1994).

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species. These examples clearly underline the growing importance of marine scientific research to study these phenomena and contribute to avoiding these problems, eliminating their adverse environmental effects and finding possible solutions. In the long run, the oceans – like all countries and their peoples – represent a unitary concept and all of them are closely interconnected. Learning about the oceans through the open and efficient conduct of marine scientific research contributes not only to knowing more about our planet and ourselves but also to fostering the advancement and progress of humankind. B. Marine Scientific Research and the 1958 Legal Regime Prior to the middle of the 20th century, the conduct of marine scientific research beyond the limits of national jurisdiction recognized no controls, restrictions or limitations imposed by either conventional or customary international law.24 At that time, marine scientific research was universally reputed as an inherent component of the legal concept of the freedom of the high seas. Interestingly, it has been reported that until that time, “the law of the sea literature contains virtually no mention” of marine scientific research.25 However, this situation was radically changed: first, as a result of the Second World War, during which numerous inventions and technologies were generated and utilized for military purposes; and second, by linking marine scientific research to the exploration and exploitation of natural resources in the marine environment.26 These important considerations promptly induced coastal States – and the international community at large – to establish governmental controls governing the conduct of marine scientific research in marine spaces under the authority and control of the coastal State.27

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See authors and academic works cited in supra note 8. This assertion is made by Churchill and Lowe in their well known treatise on the law of the sea. See “Marine scientific research and the transfer of technology” (Chapter 16), supra note 18 at 400. These authors partly attribute this omission to the “generally prevailing attitude that scientific research should be free of governmental controls” and to the “modest scale and limited practical application of marine scientific research.” Id. See supra notes 15–18 and the accompanying texts. Id. Similar ideas have been expressed by other law of the sea specialists, such as Soons, supra note 3, §5.2. Economic Interests and §5.3 Military Interests at 30 and 32, respectively. For a more academic discussion, see McDougal and Burke, supra note 4, §Coastal Authority over the Continental Shelf and Scientific Research and §Trends in Decision at 713 and 758, respectively.

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C. The Emergence of the 1958 Legal Regime to Control MSR 1. Convention on the High Seas The 1958 Geneva Conference on the Law of the Sea formulated four conventions.28 The Convention on the High Seas29 did not explicitly include marine scientific research as one of the four freedoms included in the legal concept of the “freedom of the high seas.” The four freedoms expressly mentioned in this Convention were: (1) freedom of navigation; (2) freedom of fishing; (3) freedom to lay submarine cables and pipelines; and (4) freedom to fly over the high seas.30 However, when this convention was finalized on April 29, 1958, there were no doubts that marine scientific research was regarded as one of the “other freedoms” associated with the freedom of the high seas.31 The language of the final paragraph in Article 2 of this Convention leads to the conclusion that the list of the four freedoms enunciated by said article was not considered to be exhaustive but merely indicative, based on the added clarification that there are “other freedoms which are recognized by the general principles of international law . . .”32 This final paragraph was added based on the following comment made by the International Law Commission: The list of freedoms of the high seas contained in this article is not restrictive; the Commission has merely specified four of the main freedoms. It is aware that there are other freedoms, such as the freedom to explore and exploit the subsoil of the high seas and the freedom to engage in scientific research therein. It is evident that in the high seas covering a continental shelf the latter freedoms can only be exercised subject to any rights over that shelf which the coastal State can invoke. The Commission did not study this problem in detail at the seventh session.33 28

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The four 1958 Geneva Conventions are: (1) Convention on the Territorial Sea and the Contiguous Zone (U.N.Doc. A/CONF. 13/L.52); (2) Convention on the High Seas (A/ CONF. 13/L.53); (3) Convention on Fishing and Conservation of the Living Resources of the High Seas (A/CONF. 13/L. 54); and (4) Convention on the Continental Shelf (A/CONF. L.13/L.55), all of them dated at the Palais des Nations, Geneva, April 29, 1958. Adopted by the United Nations Conference on the Law of the Sea, April 29, 1958 (UN Doc.: A/CONF.13/L. 53). Article 2, Convention on the High Seas. The provisions of this Convention were considered to be, according to its Preamble, “as generally declaratory of established principles of international law.” On the content of this Preamble, see M.R. Simonnet. La Convention sur la Haute Mer. Paris (1966) at 211–214. See Nordquist, supra note 13 at 430. The final paragraph of Article 2 of the Convention on the High Seas of 1958 reads: “These freedoms, and others which are recognized by the general principles of international law, shall be exercised by all States with reasonable regard to the interests of other States in the exercise of the freedom of the high seas.” (emphasis added). See Yearbook of the International Law Commission (YILC) 1956, Vol. II at 80 (emphasis added).

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In his Final Report on the Regime of the High Seas and the Territorial Sea, Mr. A. François, the Commission’s Special Rapporteur on the Law of the Sea, pointed out that the Commission “had not studied the problem of scientific research in detail at its seventh session” adding that said Commission: [E]xpressed no opinion on the question whether the freedom of the seas includes the freedom of each State to engage in any form of scientific research it desires, even if, as a consequence thereof, large sea areas used by others for purposes of navigation and fishing become closed to shipping. Attention has been drawn to this problem principally by research into the effects of atomic and hydrogen bombs.34

As asserted in a Commentary by the International Law Commission in its 1956 Report (reproduced above), the Geneva Convention on the High Seas of 1958 clearly regarded marine scientific research as an example of the freedom of the high seas, even though this freedom was not explicitly included in Article 2 of said Convention.35 From an international law of the sea historical perspective, this opinion was shared by most coastal States and other members of the international community during the 19th and the first half of the 20th centuries during the era of the freedom of oceanic research – a freedom that was recognized by the community of nations as based on principles of customary international law. 2. Convention on the Territorial Sea and Contiguous Zone Article 1 of this Convention was explicit in recognizing that the sovereignty of the State extends to its internal waters and the territorial sea.36 Therefore, since the exercise of sovereignty over these two marine spaces is similar to that exercised by the State over its own territory, the conduct of marine scientific research by foreign nationals in any of these spaces is permissible only with the explicit consent of said State and subject to the conditions imposed, if any, by that State.37

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Id. at 9–10. Soons mentions that the “linking of MSR with nuclear tests would obscure the further discussions within the ILC on marine scientific research.” See A. Soons. The International Legal Regime of Marine Scientific Research, 3 Netherlands Int’l L. Rev. Vol. XXIV, No. 3) at 406–407 (1977). See also Olivier Freymond. §1: Le statut de la recherche à la Conférence de Genève et dans la Convention de 1958 (Chap. VII), Le Statut de la Recherche Scientifique Marine en Droit International. Genève (1978) at 89–96. This opinion is unanimously shared by Professors McDougal and Burke, Van Dyke, Churchill and Lowe, Soons and Freymond, to mention but a few. See supra notes 4, 8 and 19, respectively. Art. 1 of this Convention reads: “The sovereignty of the State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.” See Churchill and Lowe, supra note 19 at 401. According to these authors, one possible exception to this regime “would have been if, during the course of exercising its right of innocent

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Then, as well as today, the taking of hydrographic soundings38 during the exercise of innocent passage – which is the only right foreign States enjoy in the territorial sea pursuant to Article 14.1 of the Convention – sometimes becomes a controversial question when the coastal State considers said soundings are, in reality, marine scientific research that places it “outside the concept of ‘passage,’ ” as pointed out by Churchill and Lowe.39 In these cases, according to these authors, the coastal State would have the right to prescribe conditions regulating such research pursuant to Article 17 of the 1958 Convention.40 It would seem that the exercise of sovereignty by the coastal State over its territorial sea prevails over the right of innocent passage recognized to foreign ships only when said passage is neither innocuous nor compatible with international law.41 Yet, nothing is said by this Convention regarding the conduct of marine scientific research by foreign nationals in the internal waters. However, since under international law the exercise of sovereignty by the coastal State in its internal waters is even more pronounced than that in the territorial sea,42 it

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passage through the territorial sea, a vessel had engaged in activities incidental to its passage through the territorial sea which might also have been regarded as ‘research.’ ” Id. Under Art. 19, para. 2, (j) of the 1982 LOS Convention, “Passage” of a foreign ship is considered to be “prejudicial to the peace, good order or security of the coastal State,” if in the territorial sea the foreign ship engages in, inter alia, “(j) the carrying out of research or survey activities.” And Art. 21, 1 (g) of said Convention prescribes that the coastal State may adopt regulations, relating to innocent passage, in respect to “(g) marine scientific research and hydrographic surveys,” in the understanding that foreign ships are to comply with such laws and regulations. Churchill and Lowe write: “The taking of hydrographic soundings, for example, might have been regarded both as a prudent safety measure incidental to passage and as research into the hydrography of the sea. However, this question was controversial, and it may be that ‘research’ would always take the vessel outside the concept of ‘passage.’ Even if a vessel could have engaged in research while exercising the right of innocent passage, the coastal State would have been able to prescribe conditions regulating such research (see TSC, Art. 17). Although the Geneva Conventions said nothing about internal waters, it is clear from the legal status of such waters in customary international law that research could be undertaken there only with the consent of the coastal State,” Churchill and Lowe, supra note 19 at 401 (emphasis added). Id. at 401. This article corresponds, mutatis mutandis, with Art. 19 of the 1982 LOS Convention. See Art. 14, para. 4, of the Convention on the Territorial Sea and the Contiguous Zone of 1958. See also McDougal and Burke who, based on the Corfu Channel Case, suggest that “in determining the innocence of passage” one should look not to the “purpose” of passage but rather the “manner” of passage, see infra note 40 at 244–245. According to Professors McDougal and Burke, the claim made by States to exercise “authority over internal waters is very nearly as comprehensive as that made in terms of sovereignty over the land masses.” See Myres S. McDougal and William T. Burke. The Public Order of the Oceans. Yale University Press (1965), Claims to Authority over Internal Waters, Chap. 2 at 92–93.

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should be clear that for a foreign national to conduct marine scientific research in said waters, the explicit consent and compliance with any and all conditions imposed by said State, is a sine qua non condition. 3. Convention on the Continental Shelf This convention is the first international law of the sea instrument that imposed explicit regulations for the conduct of marine scientific research in the continental shelf. It was also the first to establish consent as a requisite for the conduct of foreign scientific research in a marine area under the control of the coastal State. The Fourth Committee’s discussion at the 1958 Geneva Conference on this topic by the Fourth Committee was based on Article 71 of the draft adopted by the International Law Commission (ILC) at its Eighth Session.43 The legal notion of the continental shelf first came into existence when it was unilaterally established by President Truman in Proclamation 2667 in 1945,44 whereby the United States regarded: [T]he natural resources of the subsoil and the sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control.45

In other words, the creation of this space responded to economic interests associated with the presence of oil and natural gas, and any other natural resources located in, or on, the continental shelf. In the language of the 1958 Convention, these interests were explicitly recognized in the following language of this convention: “The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources.”46 This Convention established a basic and broad principle47 prescribing that the exploration and the exploitation of the natural resources in the continental shelf “must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea.”48 Clearly, its purpose 43

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See United Nations Conference on the Law of the Sea. Official Records, Volume VI: Fourth Committee (Continental Shelf ). Summary Records of Meetings and Annexes. Geneva, 24 February–27 April 1958 at 81–93. Proclamation 2667. Policy of the United States with respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf,” September 18, 1945, 10 Fed. Reg. 12303. Id. Art. 1, para. 1, 1958 Convention on the Continental Shelf. Art. 5, para. 1, Continental Shelf Convention. This language, that was incorporated in the final text of Article 5, para. 1 of the Convention, came from a proposal submitted by Panama. See U.N. Doc. A/CONF. 13/C.4/L.4 of March 10, 1958. This proposal (in Spanish) to amend Article 71 read: “1. The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing, the conservation of the living resources of the sea, or the free

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was to balance the interests of the coastal State with those of the international community regarding the respect due to the freedoms of the high seas, enunciated by the corresponding Geneva Convention of 1958. The Continental Shelf Convention added a paragraph stating that the exploration and exploitation activities by the coastal State must not result “in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication.”49 This paragraph suggests that, in principle, “basic or fundamental research,” i.e., oceanographic or other scientific research not associated with the possible exploration or exploitation of natural resources in the continental shelf or when “carried out with the intention of open publication,” may be conducted by foreign nationals in that submarine space when the consent of the coastal State has been duly obtained when “concerning the continental shelf and undertaken there.”50 The rationale behind this language was that these two types of research, i.e., fundamental research or that whose results are intended to be published, do not affect the natural resources of the shelf, thus safeguarding the interests of the coastal State and, as a consequence, the coastal State should not unduly interfere and not “normally withhold its consent.”51 Article 5, para. 8, of the Continental Shelf Convention prescribed: 8. The consent of the coastal State shall be obtained in respect to any research concerning the continental shelf and undertaken there. Nevertheless, the coastal State shall not normally withhold its consent if the request is submitted by a qualified institution with a view to purely scientific research into the physical and biological characteristics of the continental shelf, subject to the proviso that the coastal State shall have the right, if it so desires, to participate or to be represented in the research, and that in any event the results shall be published.52

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pursuit of disinterested scientific investigation by any country or qualified scientific institution, provided that in the latter case the said country or institution undertakes to make public the results of its investigation.” See supra note 36, Annexes at 127. Art. 5, para. 1, Continental Shelf Convention(emphasis added). According to Dr. Nordquist, the Fourth Commission of UNCLOS I (1958) was of the opinion that “marine scientific research as a whole was not considered among the activities which would warrant inclusion in a codification convention.” See supra note 13 at 430 (emphasis added). Art. 5, para. 8, 1958 Continental Shelf Convention. See, in this regard, the comments made by Churchill and Lowe regarding some interpretation problems with this language at infra note 51. Ibid. This paragraph adds: “. . . subject to the proviso that the coastal State shall have the right, if it so desires, to participate or be represented in the research, and that in any event the result shall be published.” Art. 5, para. 8, 1958 Convention on the Continental Shelf (emphasis added).

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This paragraph is fundamentally important because it established a radical change in the manner in which marine scientific research had been conducted in the world’s oceans for almost two hundred years. Prior to this Convention, marine scientific research took place under the freedom of oceanic research in any areas located outside the control of the coastal State – whether in the water column or on the seabed and ocean floor, including the continental shelf. In contrast, the 1958 Convention required the explicit consent of the coastal State as a condition for the conduct of any research on the continental shelf. Although the freedom of oceanic research applied only to the high seas, the legal difference between the two regimes was quite drastic. It seems that at the time when the Continental Shelf and the other three conventions were being formulated at the Geneva Conference in early 1958, the international community – especially coastal States – had already become keenly aware of two important facts: first, the extraordinary scientific and technological developments that had already taken place in the marine area;53 and second, the relationship between these developments and the exploration and exploitation of natural resources in the marine environment, in particular oil and certain fisheries. It was the combination of these two facts which led to the establishment of a legal regime based on the consent of the coastal State. Notice that this consent regime applied to two kinds of spaces, namely: (a) those geographically situated the closest to the coastal State, such as the territorial sea, where the coastal State exercises closer supervision and control, given national security considerations; and (b) those marine spaces known to have commercially important mineral and living resources such as oil and fisheries, known to be present in the continental shelf. Here, the interest of the coastal State is evident, given the commercial importance of said resources. Law of the sea specialists have pointed out the numerous difficulties encountered by the members of the Fourth Committee during the drafting of the language of Article 5, para. 8, of the Convention; an example of this discussion involves the meaning of the phrase “research concerning the continental shelf and undertaken there.” As explained by Churchill and Lowe: One [meaning] was that it meant that consent was required only where the research both concerned the continental shelf and was physically undertaken on the shelf, i.e., on the seabed; the other was that consent was required both for research 53

Many of these developments were conceived and applied to conduct marine scientific research for uses and applications intended for military and strategic purposes. Accordingly, this situation prompted technologically advanced States to discern what was the role, if any, that international law – and more specifically law of the sea – were going to play in relation with these military and strategic purposes.

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concerning the continental shelf – whether conducted on the seabed or in the superjacent waters – and for research conducted on the seabed whether it concerned the continental shelf or not.54

Unfortunately, the travaux preparatoires regarding the continental shelf did not shed any light on this matter and the State practice, according to Soons,55 was also inconclusive. However, the language of the Convention clearly pointed out that the consent of the coastal State was not required for the conduct of research in the superjacent waters which did not relate to that submarine space. The general opinion was that such marine scientific research was legally protected by the notion of the freedom of the high seas under its customary law characterization as freedom of oceanic research and, as such, not to be subject to any interference on the part of the coastal State, pursuant to Article 5, para. 1, of the Convention. In sum, the provisions of the Continental Shelf Convention reflect a deliberate effort to reconcile two opposing trends regarding the conduct of marine scientific research in the continental shelf: one, the interests represented by developing countries intent on subjecting this conduct to the explicit consent of the coastal State in those marine spaces under its sovereignty and control, such as the internal waters, the territorial sea and the continental shelf. In fact, the establishment of this new regime offered a legally drastic contrast with the traditional regime of the freedom of oceanic research that lasted almost two centuries in the high seas. The consent regime may also reflect certain concern or distrust on the part of the developing coastal States, motivated by the ability of technologically advanced nations to utilize modern and costly marine technologies to detect

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Churchill and Lowe, supra note 19 at 402 (emphasis added). Soons poses many more questions, for example: what is understood by “fundamental oceanographic and other scientific research;” what is a “qualified institution;”? What is “purely scientific research”? Or the use of the word “normally”? What do “participation” and “representation” mean? And what is the significance of the requirement that “the results shall be published”? See Soons, supra note 34 at 413. On these matters, see also the criticisms leveled against paragraphs 1 and 8 of Article 5 by Professors McDougal and Burke regarding the phrase “research ‘concerning the continental shelf and undertaken there,’ ” which in their opinion is “a coverage which might be construed to omit very little;” the injunction that the coastal State should not withhold consent, which they consider “does not improve matters since this is qualified by the word ‘normally’ and is followed by terms of the greatest ambiguity.” In sum, they wrote that “States might easily give arbitrary answers to such questions unless steps are taken to secure reasonable attitudes,” supra note 4 at 715. Soons, Id.

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the presence of natural resources in the marine environment or for strategic56 and military purposes.57 The other trend was to advance the policy of promoting the conduct of marine scientific research for the benefit and advancement of humankind, without imposing unnecessary limitations or restrictions, as predicated by the United States58 and other technologically advanced countries. This resulted in the insertion of specific language found in Article 5, paras. 1 and 8 of the Convention. Paragraph 1 recognized the right of the coastal State to undertake activities relating to the exploration and exploitation of its continental shelf, as predicated by international law. However, the Convention qualifies these activities in the sense that they “must not result in any unjustifiable interference” with: (a) navigation, fishing and conservation of the living resources of the sea, as part of the traditional notion of the high seas; and (b) fundamental oceanographic or other scientific research “carried out with the intention of open publication.” Paragraph 8 prescribed that, although the consent of the coastal State is to be obtained for scientific research concerning the continental shelf, said State “shall not normally withhold its consent.” This was followed by a long enumeration of specific conditions and qualifications that, instead of elucidating the meaning of the language, made it more confusing because of interpretation problems.59 In general, both developing and technologically advanced countries approved the Continental Shelf Convention thinking that it was a workable compromise

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Churchill and Lowe are of the opinion that the “suspicion among at least some developing countries that research vessels, particularly those of the major military powers, were often used for espionage,” was one principal factor to induce UNCLOS III to adopt “much stronger demands for controls over marine scientific research than the Geneva Conference . . .” The second factor was the inability of developing countries to benefit from the EEZ “unless they had control over the research in those waters that might have application to resource exploitation,” see supra note 19 at 403. A similar idea is expressed by Prof. John E. Noyes when he writes: during UNCLOS III “coastal States, especially developing States, raised the concern that developed States might use marine scientific research as a pretext to gain sensitive intelligence,” Law of the Sea in a Nutshell (West, 2nd ed.) At 288–289. In the late 1950’s and 1960’s, the western countries were concerned with the expansion and strengthening of its military power by the Soviet Union and its allies and the possible use of nuclear weapons. In his speech in 1967 before the United Nations General Assembly, Amb. Arvid Pardo exhorted the international community to stop the arms race which was threatening to escalate into the oceans and formally declare that the seabed and ocean floor beyond the limits of national jurisdiction should be utilized for peaceful purposes only. See UNGA Resolution No. 2749–XXV of December 17, 1970. In the United States this trend was strongly embraced, promoted and widely disseminated by the scientific community. See Soons, supra note 34 at 413–414. See also Wooster and the other authors cited in supra note 7. See supra note 48 and accompanying texts.

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and that ultimately the State practice – reflected in the eventual enactment of regulations by the coastal State on marine scientific research – would allow for a practical application of this Convention. 4. Convention on Fishing and Conservation of the Living Resources of the High Seas This is the fourth convention that resulted from the 1958 Geneva Conference on the Law of the Sea.60 It should be pointed out that of a total of 22 articles, none of these included any specific language to regulate the conduct of marine scientific research. With the development of modern fishing techniques, during the 1950’s and thereafter, many countries – including Mexico and the United States – established “exclusive fishing zones” where the coastal State exercised controls with the purpose of protecting and conserving the living resources of the sea. These controls included some marine scientific research restrictions imposed on foreign fishing vessels when said fisheries research involved the actual taking of fish. According to Churchill and Lowe, with the passage of time, these restrictions acquired the character of customary international law rules because of the lack of protests against these restrictions by foreign fishing countries.61 Under Article 2 of the 1958 Geneva Convention on the High Seas, all States, both coastal and landlocked, enjoy the right of conducting marine scientific research in the high seas as the internationally recognized freedom of oceanic research, one of the freedoms of the high seas guaranteed by customary international law. Why, then, did fishing nations not protest when the coastal State extended its jurisdiction over the exclusive fishing zone to regulate fisheries research involving the taking of fish? Law of the sea literature has not provided an authoritative answer to this intriguing and important question. The answer may possibly lie in the ambiguity of the legal nature of the “exclusive fishing zone” as defined as a “special zone” forming a part of the high seas where the coastal State, pursuant to the 1958 Convention on Fishing and Conservation of the Resources of the High Seas, has the power to adopt measures “when necessary for the purpose of the conservation of the living resources affected.” (Art. 3). In addition, the Geneva Convention on the Continental Shelf recognized the right of the coastal State to impose controls on marine scientific research when said research was not of a “fundamental nature” but affected the natural resources in that marine space (“applied research”). Possibly, foreign fishing 60

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Adopted by the United Nations Conference on the Law of the Sea, April 28, 1958. U.N. Doc. A/CONF. 13/L.54). Mexico became a party to the four 1958 Conventions on August 2, 1966; and the United States on April 12, 1961. See Churchill and Lowe, supra note 19 at 403.

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countries deduced that if the coastal State had the right to control marine research when this involved some “exploration or exploitation” components (“applied research”), then this rule may also be applied not only in the continental shelf but also in the high seas, as a possible interpretation resulting from the language of the 1958 Fishing and Conservation Convention. Regardless of these possible explanations, the fact is that the “lack of protests against such claims suggests that the limitation on marine scientific [fisheries] research became part of customary international law,” as asserted by Churchill and Lowe.62 In conclusion, the controls on marine scientific research introduced by Art. 5, para. 8, of the Convention on the Continental Shelf, followed by the restrictions established by coastal States in their respective exclusive fishing zones, derived from the Convention on Fishing and Conservation of the Living Resources of the High Seas, as later reflected in the practice of States,63 resulted in a definite restriction of marine scientific research. The next chapter in the construction of a legal regime relative to the conduct of marine scientific research was given to the Third Commission of the Third United Nations Conference of the Law of the Sea. Since the beginning of its work, the expectations were that this multilateral conference was subject to stronger and more specific demands than any previous law of the sea conference to produce a regime based on the consent of the coastal State.64 Whereas this goal was widely shared and supported by developing countries, the technologically advanced nations anticipated that a special and vigorous effort was going to be needed to produce a legal regime to promote marine scientific research, facilitate the operations of research vessels in foreign marine spaces and foster international cooperation between scientific communities on a global scale. In other words, developed nations believed that a legal regime for marine scientific research based on the consent of the coastal State would result in restrictions and obstacles to such research.65

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Churchill and Lowe, Id. Just prior to the initiation of the formal works of UNCLOS III, and during the initial years of this conference, the LOS literature published numerous articles by marine scientists and academicians providing data showing a clear trend in denials to the conduct of marine scientific research by U.S. vessels. As an example of these works, see those cited in supra note 7. See Churchill and Lowe, supra note 19 at 403; and Kwiatkowska, supra note 7 at 135. See the authors cited in supra note 8.

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2. Marine Scientific Research and the Freedom of the Seas Doctrine The freedom of the seas doctrine, formulated as a Mare Liberum thesis by Grotius66 in 1609, predicated that the oceans should be free to all nations allowing them to navigate with no restrictions in the high seas, that immense oceanic area beyond the legal control of any coastal State. The freedom of navigation and the freedom to fish were two fundamental principles that were later recognized as “freedoms.” These new freedoms directly derived from the doctrine of the freedom of the seas and promptly became an integral part of customary international law. Although originally supported and imposed by the naval power of England and The Netherlands in the early 17th century, the doctrine of the freedom of the seas prevailed on a global scale for three and a half centuries.67 It was not until the second half of the 20th century when the freedom to conduct marine scientific research (jointly with the freedom to lay submarine pipelines and cables)68 made their formal legal entry into conventional international law.69 Since its inception, the freedom of oceanic research entered the realm of customary international law under the idea that it was an activity to be free from government controls.70 It was the natural human curiosity to learn more about certain remote lands and their inhabitants, including their plants and species, both terrestrial and marine, as well as the exercise of the freedom of oceanic research, that inspired an era of extraordinary oceanographic and scientific expeditions, such as those conducted by the British H.M.S. Challenger in 66

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The short treatise Mare Liberum (Freedom of the Seas) was written in 1604 and printed in 1609 as chapter 12 of a larger treatise titled: De Jure Praede Commentarius (Commentary on the Law of Spoils). See Hugo Grotius. Mare Liberum (Ralph van Daman translation, 1916) at 27. See Jon M. Van Dyke. International Governance and Stewardship of the High Seas and Its Resources, Freedom for the Seas in the 21st Century, supra note 2 at 13. The first submarine cable was laid from the tug Goliath on August 28, 1850 between Dover and Calais. The first successful transatlantic cable (in use for six years) was laid by the Great Eastern starting from Valentia, Ireland, on July 18, 1886, and ending at Heart’s Content, Newfoundland, on July 27, 1866. On this day a telegram was sent on completion of the cable. Within the next few days, a message from Queen Victoria to President Andrew Johnson and a reply from him to the Queen were sent over the cable at a rate of about eight words per minute. Taken from “Submarine Cable,” Encyclopedia Americana (1990), Vol. 5 at 117. These four freedoms: 1) navigation, 2) fishing, 3) the laying of submarine cables and pipelines; and 4) to fly over the high seas, were explicitly recognized in Article 2 of the Convention on the High Seas, adopted by the United Nations Conference on the Law of the Sea on April 29, 1958 (U.N. Doc. A/CONF. 13/L.53). See R.R. Churchill and A.V. Lowe. The Law of the Sea (Juris Publishing, 3rd ed. 1999). Marine Scientific Research and the Transfer of Technology (Chap. 16) at 400–401.

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1872–1876;71 The Beagle, that ten-gun brig where Charles Darwin was enlisted as a “Naturalist,” and sailed from Devenport, England, in 1831, arriving back home in 1836;72 and that of Alexander von Humboldt,73 among others. During its early days and until the mid-20th century, the pace of activities in the different areas of marine scientific research was relatively slow, of a modest scale and principally oriented towards “fundamental” research. To a certain extent, this may explain why the freedom of oceanic research was freely conducted on a global scale for such a long time by technologically advanced nations with no legal or governmental restrictions of any kind. However, this lack of legal regulation was changed dramatically as a result of World War II. Suddenly, during the war marine scientific research was elevated to an area of the highest importance, well funded and promptly shifted from “basic research” to “applied research projects” to keep up with the fast, imperative and unending demands of the military. In addition, industrial demands realized the importance of using applied marine scientific research for commercial purposes when applied to the exploration and commercial exploitation of natural resources, in particular fishing and oil extraction. All of these activities were to be discussed and put into legal language within the multilateral forum convoked by the United Nations to regulate and codify the uses and resources of the oceans at the first Conference on the Law of the Sea, held in Geneva, Switzerland, in March and April of 1958. The four conventions that resulted from this conference legally altered – and clearly restricted – the conduct of marine scientific research both in the sea spaces under the control of the coastal State (including submarine areas) and also in the vastness of the high seas. The four conventions on the law of the sea produced by the 1958 international conference put an end to the long era when the conduct of marine scientific research was governed not by international treaties and conventions – as

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The scientific expedition of the steam corvette “Challenger” contributed to the founding of four major branches of ocean science: marine biology, submarine geology, chemistry of seawater, and physical oceanography. This cruise was the first to circumnavigate the world’s oceans, lasted over three years and navigated 69,000 miles. Its results were published in numerous scientific collections. See Charles Darwin. The Origin of Species and the Voyage of The Beagle. With an Introduction by Richard Dawkins (Reprint of the first U.K. edition on 1839), Knopf, N.Y., 2003 at 17. See Irving A. Leonard. Colonial Travelers in Latin America. Knopf, N.Y. (1972); and Ensayos sobre Humboldt (Essays on Humboldt). UNAM, México (1962). Humboldt is recognized as the first to study the strong marine current offshore Peru that was used by this country in 1952 as one of the scientific bases to claim a 200-nautical mile maritime zone under the so-called “Bioma Theory,” jointly with Chile and Ecuador.

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it is today with the 1982 U.N. Convention on the Law of the Sea – but by the unwritten principles of customary international law. The final chapter addressing marine scientific research as part of the modern international law of the sea was to take place at the Third United Nations Conference on the Law of the Sea (UNCLOS III). In contrast to previous diplomatic efforts held under the aegis of the United Nations that produced a few articles distributed in the four resulting Geneva Conventions of 1958, UNCLOS III was able to structure the most specific, comprehensive and systematic legal regime ever produced by any multilateral conference on the modern international law of the sea. This important subject gave legal content to Part XIII of the 1982 LOS Convention. This part is composed by Articles 238–265 (a total of 28 articles) that govern the conduct of marine scientific research by foreign nationals in the marine spaces under the sovereignty and control of the coastal State. Clearly influenced by the consent regime incorporated in the language of the 1958 Convention on the Continental Shelf, the 1982 LOS Convention takes from the 1958 Convention the notion of consent to be obtained from the coastal State and then uses it to structure a legal regime designed to promote and facilitate the development and conduct of scientific research in the marine environment.

3. An Historical Overview: Explorations for Wealth, for Souls and for Knowledge During the first three centuries after the discovery of the Western hemisphere, the explorations of the first Europeans in the New World may be categorized into three types: explorations for wealth, for souls and for knowledge.74 A. Explorations for Wealth The arrival of the first Europeans to the Western hemisphere in 1492 dramatically expanded the scientific and cultural horizons of the then “civilized world.” The amazing discovery of new lands, populated by indigenous peoples and endowed with an incredible variety of flora and fauna, as well as precious minerals and vast natural resources, quickly moved the Spaniards and the Portuguese first, followed by other countries such as England, France, The Netherlands, Russia, etc., to promote and finance explorations with the exclusive objective of expanding the territorial base of those countries. Scientific inquiry 74

See Richard A. Schwartzlose. Exploration and Scientific Research in the Gulf of California (Unpublished article, UCSD, 1983).

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had to yield to military, strategic and political considerations and enlightenment succumbed to the power of wealth.75 Time was of the essence and there were no barriers to the drive of discovering more new lands and acquiring more gold and silver, pearls and other precious resources. Discovery, possession and physical occupation were the most important objectives at hand. 1. The Era of “Imaginary Geography” Thus, during the 16th and 17th centuries, any measures to mislead or confuse the enemy or the rival parties with respect to the location of the new lands and islands, and the dangers associated with the navigation routes to get to them, became common practice. To keep secret any geographical information relative to geographical discoveries or explorations, with the purpose of depriving the enemy of any information or technical data that would be useful to finding new maritime routes or to launching new maritime or land explorations, was a widespread practice and a royal obligation imposed upon cosmographers, navigators and cartographers.76 Many of the nautical maps and charts of that era were deliberately inaccurate or clearly erroneous to disorient and confuse explorers or navigators of rival countries. The depiction of California as an island in a map drew in 1625 by Henry Briggs,77 Professor of Astronomy at Oxford; and the navigational chart depicting the mythical and mysterious Strait of Anián in 1566, are notable examples of these practices.78 The eminent historian Henry R.

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See Paul Hamyin and Nicholas Horden. A History of Discovery and Exploration. Gilcrease Institute, Tulsa (1978); Nicholas Horden. God, Gold and Glory, The New World and Explorers, Conquerors and Colonizers, Chapter 7 (1976) at 101–160, Vol. 2; Iris H.W. Engstrand. Spanish Scientists in the New World (1981) at 3–32. In the 16th and 17th centuries, these three technical and learned occupations received tremendous recognition and support in the maritime schools in Spain, Portugal, France and England. The “Cosmographers” were trained to find the best nautical routes based on stars and constellations, and to convey these information to the navigators and cartographers. The navigators, in concert with the cosmographers and cartographers, took command of directing the “good and safe sailing” of the ship. And the cartographers, trained in geography, mathematics and astronomy, drew maps and designed geometrically accurate and beautifully colored maps. See Ronald V. Tooley. California as an Island. A Geographical Misconception Illustrated by 100 Examples 1625 to 1770 (1964). According to this author, the very first depiction of California as an island appeared in the chart published in Historia de las Indias (History of the Indies) by Antonio de Herrera in 1625. The Strait of Anián was a mythical passage connecting the Atlantic with the Pacific Ocean (or the Pacific Ocean with the PolarOcean), also known as the “Northwest Passage.” For the maps of California as an island and the alleged existence of the Strait of Anián (Estrecho de Anián), see Miguel de León Portilla. Cartografía y Crónicas de la Antigua California (Cartography and Narratives of Ancient California). UNAM, México, (1989).

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Wagner, in his impressive and technical book, refers to this era as the time of the “imaginary geography” of the Northwest coast.79 The explorations for wealth brought Spain immense dominions in the New World. From the 16th to the late 18th century Spain became “the largest colonial empire in the world”80 with vast territories in Mexico, Central America and the Caribbean, South America (except Brazil that became a Portuguese colony) and even Asia. In America, England acquired the territories of today’s United States and Canada; France possessed Louisiana, and Russia acquired Alaska. In sum, the explorations for wealth resulted in the construction of a larger and more complete geographical world – a world that brought profound political and diplomatic changes; economic and commercial relations and confrontations; social and religious transformations; and scientific, technical and industrial developments. B. Explorations for Souls 1. Religious Indoctrination: The Franciscans, the Dominics and the Agustineans With the discovery of the New World, the presence of Spain in these lands was characterized by two symbols: the sword of the Conquistador, and the cross of the religious missionaries. As a moral and religious obligation, the Spanish Crown recognized that religious indoctrination and the conversion of all the Indigenous peoples into the Catholic faith was an indispensable component in its quest for exploration and discoveries during the 15th and 16th centuries. So, it was the Spanish King Charles V who in 1492 prescribed that any expedition authorized by him to explore the New World had to include religious missionaries with the purpose of “introducing and propagating the Catholic faith among the naturals in those lands.”81 The first three religious orders to follow this royal command were the Franciscans, who started their evangelization activities in Tlaxcala in 1492;82

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Henry R. Wagner. The Cartography of the NorthwestCoast of America to the Year 1800 (1937) at 26. See also Dora Beale Polk. The Island of California. A History of the Myth, Univ. of Nebraska Press(1991). See Iris H.W. Engstrand. Spanish Scientists in the New World. Univ. of Washington Press (1981). For a detailed narratives of the numerous discoveries and expeditions by Spaniards in California, see Alvaro del Portillo y Díez de Sollano. Descubrimientos y Exploraciones en las Costas de California (Discoveries and Explorations in the Coasts of California). Madrid (1980). See William L. Schurz. The Manila Galleon (1985) at 196–200. See Julius II’s Universalis Ecclesiae Enciclica in Luis Wackman. The Medieval Heritage of Mexico (1992) at 184. The Franciscans arrived in America with Columbus during his second voyage and during the next 300 years they accompanied every major Spanish and French

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the Dominics and the Agustineans.83 The arrival of these religious orders to the New Spain signaled the initiation of explorations by land and sea in search of souls. In addition to the propagation of the Catholic religion, the philosophy, avocation and diligence of these religious orders moved them to excel in important activities outside the religious arena. All of them established schools, colleges and training centers for indigenous peoples throughout Mexico; built and managed hospitals, clinics and orphanages; developed certain basic industries and, in particular, defended and protected native communities against the cruelty, mistreatment and exploitation inflicted to them by the Spaniards, basing the Indians’ defense not only on religious grounds but also on legal and philosophical ideas resembling human rights notions.84 The labor and devotion of these religious orders – and others that joined them later on, such as the Discalced Carmelites and the Jesuits, for example – resulted in the conversion of Latin America to the Catholic faith. C. Explorations for Knowledge The arrival of the first Europeans to the New World early in the 16th century generated a tremendous interest to study, learn and investigate everything the newly discovered lands provided: the oceans, islands and coastlines; the land with its flora and fauna; the environment; the natural resources, both living and mineral; and their physically attractive and intriguing indigenous peoples. A new spirit of inquiry and fascination moved those early Europeans to try to learn everything they could about the New World and then compare it with what existed in their own countries. The Europeans’ curiosity for the new lands and their appetite for knowledge was insatiable. This newly acquired sense for learning moved them to explore and investigate plants, animals, rocks and people in new areas of old scientific disciplines now brimming with surprises, beauty and fascination. 1. Nautical Charts and Maps Armed with scientific and technical information directly connected with the construction of maritime vessels, and still under the powerful influence caused

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expedition to the New World, including the territories that are the United States today. See John Moorman. A History of the Franciscan Order, London (1968). The first seven Agustineans disembarked in San Juande Ulúa, Veracruz in 1533, led by Fray Francisco de la Cruz. Jointly with churches and convents, the Agustineans became interested in the Indigenous languages, published grammars and practical dictionaries, and trained Indians in different trades. Enciclopedia de México, Vol. I (1978) at 334–338. See, for example, Samuel H. Mayo. A History of Mexico (1978) at 134; George Sanderlin. Writings of Bartolomé de las Casas (1992) at 62.

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by the lure of launching explorations for wealth, those Europeans first turned their attention to the production of nautical charts and maps. They realized they needed marine maps to navigate their ships safely to the newly discovered places. In the instructions Conde de Monterrey gave Sebastián Vizcaíno in Mexico City on March 18, 1602, to expand Spain’s control in the Pacific Ocean and, “to discover ports, bays and ensenadas in the Mar del Sur,”85 the Spanish Crown’s instructions for Vizcaíno to follow scientific methods and to use the most advanced equipment and techniques for the conduct of his navigation and exploration activities are clarified. In part, these instructions read: 1) Demarcate the coastline but do not go inland, looking for Indians; 2) Take note of the direction of the winds; 3) Take detailed notes where pearls existed . . .; 4) Use his two boats to conduct some exploratory fishing, utilizing Chinchorros; 5) Demarcate the entrance to large bays; 6) Take notice of the entrances to ports, and name them with Saints’ names,86 without changing any of those already named; 7) Demarcate all islands, reefs and low areas (Bajos) in relation with the general direction of the coastline . . .; and 8) Write down the time at the beginning and at the end of any type of solar or moon eclipse.87

2. Spanish Expeditions in the Pacific Ocean and the New Spain In contrast to the scientific explorations and discoveries of England and France throughout the world during the 16th and 17th centuries, Spain remained committed to the policies of the sword and the cross. It was not until some two-hundred and fifty years after the discovery of the New World when Spain finally reached its era of “Scientific Enlightenment” with the accession of Carlos III in 1759, who sponsored several important scientific expeditions. The Spanish king believed that it was time for Spain, and it scientists, to emulate the

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See the formal “Instruction and Order” given to Vizcaíno in Alvaro del Portillo, Descubrimientos, supra note 29 at 301–307. The original is found at the Archivo de Indias, in Seville, Audiencia de Guadalajara, Legajo No. 133. It deserves to be noted that the names given by Vizcaíno to ports, islands and bays during this second expedition along the Pacific coast of Mexico and of the United States have remained in place until today. These include Bahía Santa Marina, Puerto del Marqués, Sierra del Enfado, Bahía Magdalena. Bahía de Ballenas, Ensenada de Todos Santos (all in Mexico); and San Diego, San Clemente, Santa Catalina, San Nicolás, Santa Barbara, etc. (in the United States). See Vizcaíno’s Relación Oficial del Viaje (Vizcaino’s Official Report of his Voyage) in Luis Cebrero Blanco (Ed.). Colección de Diarios y Relaciones para la Historia de los Viajes y Descubrimientos, Madrid (1944). For an English translation, see Herbert E. Bolton. Spanish Explorations in the Southwest 1542–1706 (1916). Del Portillo, supra note 80 at 306. See also Michael Mathes. Vizcaino and the Spanish Expansion in the Pacific Ocean, 1580–1630 (1968) at 2.

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explorations of Captain James Cook88 during his trips in the Pacific from 1769 through 1778; of George Vancouver89 in the Northwest coast of North America in 1792; of Louis Antoine of Bouganville90 from 1766 to 1769; and of Count La Pérouse91 in California, Hawaii, and the South Pacific in 1785–1786. The most salient Spanish expeditions under King Carlos IV include the trip from Acapulco by Juan Francisco de la Bodega y Cuadra in his schooner Sonora who reached Alaska and the Aleutian Islands in 1775; the outstanding expedition by Alejandro Malaspina from 1789 to 1791 who also explored the Pacific northwest and Alaska in his two corvettes: the Atrevida and Descubierta,92 designed especially for scientific research and fully equipped with the most advanced scientific and technical equipment.93 The expedition sailed from Cádiz and included scientists and artists. Their objectives included “to map the coastlines, study the natives, investigate the flora and fauna and describe mineral resources.”94 One of Spain’s major scientific endeavors was the Royal Scientific Expedition to the New Spain in 1785–1789. This expedition was planned and vigorously promoted by the Aragonés physician Martin de Sessé, supported by Casimiro Gómez Ortega, director of the Royal Botanical Garden in Madrid. On March 20, 1787, a royal order outlined the purposes of this expedition: “to examine, draw and describe methodically the natural products of the most fertile dominions of New Spain,” and to “banish the doubts and uncertainties then existing in medicine, dyeing and other useful arts.”95 José Longinos Martínez, a naturalist from the Royal Scientific Expedition, traveled overland from Mexico City to San Blas, crossed the Gulf of California 88

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The famous “Naturalist” Sir Joseph Banks accompanied Cook’s first voyage, created an impressive botanical garden and assembled notable botanical collection of plants from different parts of the world. Botanist Archibal Menzies studied the trees and plants on the North American West coast. “Naturalist” Philibert Commerson, who accompanied Bouganville, popularized throughout the world the beauty and resilience of the “Bouganville” plant. Count La Pérouse in 1795, commanding the frigates Boussole and Astrolabe, on a voyage of discovery, reached Alaska in 1786. He discovered the NeckerIsland in Hawaii, and after visiting Macao, the Philippines, and Japan, discovered and named the La Pérouse Strait between Hokkaido and Sakhalin. He also visited Samoa and Tonga in the South Pacific. His journal of the voyage, with maps, plans and notes of the wok of his expedition, was published in France in 1808–1809. See Pedro de Novo y Colso. Viaje Político Científico Alrededor del Mundo por las Corvetas Descubierta y Atrevida (Political and Scientific Voyage around the World of Descubierta and Atrevida). Madrid (1885). See Donald C. Cutter. Malaspina in California. San Francisco (1960); and California Training Ground for Spanish Naval Heroes, 40 California Historical Society Quarterly (1961) at 109–122. See Engstrand, supra note 80 at 9–12; 44–57; and 58–75. Ibid. at 19.

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to Loreto, and traversed the entire peninsula from Cabo San Lucas to as far north as Monterey in Alta California.96 He studied birds; the mines in Baja California, Sonora and Sinaloa; thermal waters in the region of Mission Santiago; insects; the customs, arms, clothing and games of the Baja California Indians; native languages in that peninsula; and, especially, medicinal plants.97 His descriptions of the Chumash Indians, including their houses, temascales, women’s dresses, canoes, weapons and flora and fauna in that region, have been recognized as the most complete, systematic and accurate descriptions of that time. Viceroy Revillagigedo ordered Longinos to return to duty on October 26, 1793, and he returned to Mexico City in early 1794.98 During his visit to New Spain in 1803, Alexander von Humboldt was favorably impressed with the support given by the Viceroy Revillagigedo to scientific activities in Mexico and throughout the New World.99 Unquestionably, all of these expeditions, charts and maps; descriptions of insects, animals and plants; the location of minerals in Sonora, Sinaloa and the Baja California peninsula; the magnificent drawings and vivid descriptions of the native populations; as well as the collection of specimens and samples, contributed greatly to the advancement of science and the progress of humankind. D. Early British and U.S. Scientific Explorations Offshore Mexico After three hundred years of domination and exploitation by Spain, Mexico finally consolidated its political independence in September 28, 1821. During its first century as a sovereign nation, Mexico had to fight hard to try to maintain its territorial integrity;100 protect its islands and other natural resources;101

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Id. at 10. Some of these “medicinal plants” included Apothecary sage, chuchupaste root (held to be miraculous for headaches), gobernadora (used to ameliorate arthritis),“scorpion root,” tabardillo, mesquitillo, jarramatraca, raíz barbuda, etc. Id. at 141. Eventually, the interests in plants led Revillagigedo to establish a RoyalBotanical Garden adjacent to his Royal Palace in the Zócalo in Mexico City in 1791. Id. at 142. Humboldt wrote: “Since the final years of the reign of Carlos III and during that of Carlos IV, the study of the natural sciences has made great progress not only in Mexico but in all the Spanish colonies. No European government has sacrificed greater sums than that of the Spanish in order to advance the knowledge of plants.” See his Ensayo Político sobre el Reino de la Nueva España. Porrúa, México (1966) at 80. In a war of conquest declared by the United States, Mexico suffered considerable territorial losses as reflected in Article V of the Guadalupe-Hidalgo Treaty of 1848. In an international arbitration, Mexico lost ClippertonIsland in the Pacific Ocean by an award favoring France, rendered by Vittorio Emmanuele, King of Italy dated in Rome, on January 28, 1934. Today, ClippertonIsland is strategically located in one of the richest submarine areas with polymetallic nodules in the Pacific Ocean. Other Mexican islands were

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defend the republican form of government from European intrusions;102 and survive a constant series of political changes of forms of government that created a pervasive internal civil strife.103 In those early days, the conduct of marine scientific research by foreign vessels offshore the newly independent nation was far removed from the list of its domestic priorities. According to scientific reports,104 England in the 1830’s and 1840’s, and the United States in the late 1870’s, 1880’s, and early 1900’s, were the very first two foreign countries that conducted marine scientific research activities offshore Mexico under the freedom of oceanic research. 1. Early British Explorations According to Schwartzlose, from Scripps Institution of Oceanography, Mr. Cuming, aboard the British survey ship HMS Blossom collected shells from Mazatlán, Sinaloa, and from the Gulf of California in 1831, as reported in a book published by Cuming in London in 1833. Six years later, Richard B. Hinds – a surgeon and naturalist of the British ship HMS Sulpher – took additional shell collections in Cabo San Lucas, San Blas and Mazatlán.105 In the late 1840’s, Phillip Carpenter, another British scientist, published the now famous “Mazatlan Catalogue” and delivered a lecture on the topic: Shells of the Gulf of California at the Smithsonian Institution in Washington, D.C. in 1859.106 2. United States Explorations in the 1870’s and 1880’s and in the Early 1920’s It is known that between 1872 and 1882, the United States engaged in hydrographic surveys off the west coast of Mexico, along the Baja California peninsula, conducted by the warships USS Narraganset, the Tuscarora and the

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illegally occupied by U.S. citizens and Mexico had to negotiate with the United States to recover them. With the political and military support of Napoleon III, Emperor of France, Maximilian of Hapsburg militarily defeated the Republican Army and established an Empire in Mexico in 1861. Eventually, with the support of President Abraham Lincoln, Mexico defeated the conservative forces; Maximilian, and his generals Miramón and Mejía were shot in Cerro de las Campanas, in Querétaro in 1867, and President Benito Juárez re-established the republican form of government. During those first hundred years, Mexico suffered a string of military takeovers (Cuartelazos, azonadas, golpes de Estado, etc.) that resulted in chronic political instability that destroyed the country’s economy. This information is reported by Dr. Schwartzlose, supra note 74 at 8–10. Ibid. Id. Dr. Schwartzlose reports that from 1859 to 1861, Janos Xantus, enployed by the U.S. Coast Survey, measured the tides in Cabo San Lucas and also collected birds, plants, shells and marine animals without reporting these activities to the government of Mexico.

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Ranger.107 However, according to Schwartzlose, the first U.S. oceanographic work off the west coast of Mexico was from the Hassler, with Alexander Agassiz on board, having taken place off Cabo Corrientes in early August of 1872 en route to San Francisco, California.108 Reports indicate that the first non-government collecting U.S. cruise was carried out in the Gulf of California for the collection of “natural science materials, including mollusks,” from a vessel chartered in San Francisco by W.J. Fisher in 1873 and 1876. However, the most important scientific work took place in the Gulf of California by the Albatross, a U.S. Fishing Commission vessel in 1888, 1889, 1891, 1904 and 1911. Its activities included bathymetry, fish, plankton, general invertebrates, shells, shore and sea birds, island animals, insects, sediments, water temperatures, dip netting and meteorological data.109 These cruises produced immense wealth of scientific data and the processing of this information contributed greatly to establishing the first documented base of scientific information about the Gulf of California, an oceanic space that since those early days has proven to be an inexhaustible source of interest to world scientists, especially to the U.S. scientific community. In closing, it deserves to be mentioned that the California Academy of Sciences conducted numerous scientific explorations along Mexico’s Baja California peninsula and the Pacific coastline, including observations on geology, flora and fauna of the Mexican islands of Santa Margarita, Magdalena, Guadalupe, and especially Islas Revillagigedo.110 The early expeditions by the California Academy of Sciences in the Gulf of California,111 laid a solid scientific foundation for the study of this intriguing ocean basin. In addition, these expeditions provided the first examples of U.S.-Mexico binational cooperation given the participation of Mexican counterparts in a number of scientific projects.112

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Id. at 9–10. Id. at 10. Id. See Adrian F. Richardson. Cartography, Discovery and Exploration of the Islas Revillagigedo. Proceedings of the California Academy of Sciences, Series No. 9, 1959. See Expedition of the California Academy of Sciences to the Gulf of California in 1921: A General Account. Ibid. at 55–72. See, for some individual and joint U.S.-Mexico projects, R.A. Schwartzlose and J.R. Hendrickson. Bibliography of the Gulf of California (1982). Scripps Institution of Oceanography (SIO) and Universidad Nacional Autónoma de México (UNAM), listing 4,000 scientific works divided into 27 categories. Parts of these sections are based in Vargas, supra note 1 at 15–20.

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4. Mexico’s Administrative Regulatory System Regarding Marine Scientific Research Clearances for Foreign Vessels A. Historical Narrative on the Conduct of Marine Scientific Research by Foreign Vessels Offshore Mexico Historically, the conduct of marine scientific research activities by foreign vessels offshore that country was a legal and administrative area that received virtually no attention from either Mexico’s Federal Congress (Congreso de la Unión), or from its federal public administration, during the first 150 years of its independence.113 During that period of time (1821–1971), no federal statutes, laws or administrative regulations were ever enacted to govern or control the conduct of said foreign activities. In those days, the number of research vessels from major powers was relatively insignificant. Because of this lack of specialized scientific vessels, some of those technical and scientific activities were usually conducted by warships or naval vessels as part of their normal intelligence gathering data activities performed for military and security purposes. See, for example, the practice by British and U.S. warships offshore Mexico in the 1800s and early 1900s.114 The widespread practice by maritime powers to promote and finance the conduct of marine scientific research activities offshore foreign nations was initiated, and became a relatively common practice after the end of WWII when many warships and naval vessels were released from their military duties. The end of the war also increased the need felt by the major powers to develop technologies to find oil deposits in the submarine continental shelves, which was a difficult, highly technical and very costly proposition. Thus, in the late 1940’s and 1950’s the U.S. Navy realized that one of the best uses for the many decommissioned, but still technically apt, warships and naval vessels was to transfer them to American universities and scientific institutions where they were to be used as “marine platforms” to complement and strengthen those nascent marine sciences programs. It was at that time also when many brilliant naval and military scientists who were released from active military duty soon found themselves working as researchers or professors

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As seen in Chapter One of this book, under Mexican law, the oceans, its uses and resources, and the conduct of marine scientific activities by foreigners in the marine spaces under the sovereignty or jurisdiction of Mexico is of the exclusive competence of the Federal government. Only the Federal Congress has the power to legislate on these matters, and the States are excluded altogether except with respect to islands under the jurisdiction and control of a given State. See in this chapter: Early British and U.S. Scientific Explorations Offshore Mexico, supra notes 64–70 and the accompanying texts.

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for marine laboratories, scientific institutions and universities throughout the nation.115 Interestingly, from the late 1930s to the 1960s, foreign nations interested in conducting any kind of marine scientific research (including research on the continental shelf) offshore Mexico, proceeded to do it freely, without having to request any official authorization or permit unless said activities were going to take place within Mexico’s territorial sea. Until 1930, Mexico’s territorial sea consisted of “three marine leagues” (e.g., tres leguas marinas, equivalent to nine nautical miles pursuant to Article V of the Treaty of Guadalupe Hidalgo of 1848),116 and later confirmed by the National Assets Act of 1902 (Ley de Bienes Inmuebles de la Nación).117 In 1969, only after concluding that an international customary rule establishing a 12 nautical mile had been consolidated,118 Mexico’s territorial sea was enlarged to 12 nautical miles by a special decree amending the first and second paragraphs of Section II of Article 18 of the General Act of National Assets in 1969 (Ley General de Bienes Nacionales).119

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A salient and exemplary institution in this category is Scripps Institution of Oceanography (SIO) at La Jolla, California. Many of its most brilliant scientists were originally with the U.S. Navy, such as Harald Sverdup, Martin Johnson, Richard Fleming, Eugene LaFond, Walter Munk, Francis Shepard, and Roger Revell (the founder of the University of California at San Diego, also in La Jolla, California). See Elizabeth Noble Shor. Scripps Institution of Oceanography. Probing the Oceans 1936–1976 (1978) at 25. See Jorge A. Vargas. “Mar Territorial,” Terminología sobre Derecho del Mar (Law of the Sea Terminology). Ceestem, México (1979) at 190–194. For an authoritative legal and historical discussion, see Alfonso García Robles. La Anchura del Mar Territorial. México, Colef (1966). Article 4, para. I, Ley de Inmuebles de la Nación of December 18, 1902. This is the very first legislative enactment passed by Mexico as an independent nation, establishing a “[T]erritorial sea out to a distance of three nautical miles (tres millas marítimas), measured from the low tide mark from the mainland or from the coastline of those islands that form a part of the national territory.” See A. Székely, México y el Derecho Internacional del Mar (1979) at 62. Decree amending the first and second paragraphs of Section II of Article 18 of the General Act of National Assets, published in the Diario Oficial of January 30, 1969, repealing the previous Act enacted in 1942. This special decree safeguards the validity of the fishing agreements entered into with the United States and Japan until 1973, as a result of having established in 1967 a three nautical mile fishing zone. Accordingly, Mexico’s new 12 n.m. territorial sea did no apply to these two countries until the expiration of those bilateral agreements. See Fernando Castro y Castro. Convenios Bilaterales de Pesca: Práctica y Legislación Mexicana (Bilateral Fishing Agreements: Practice and Mexican Legislation) in México y el Régimen del Mar (Mexico and the Oceans’ Regime). SRE, México (1974) at106–135; and A. Gómez Robledo. El Derecho del Mar en la Legislación Mexicana (Sinopsis Histórico-Evolutiva (Law of the Sea in the Mexican Legislation), Ibid. at 81–105.

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During those days, the United States only recognized a 3 nautical mile territorial sea, and any maritime claims beyond said narrow limit were considered to be in violation of international law. Evidently, this U.S. policy directly affected the conduct of marine scientific research by U.S. vessels anywhere in the world, including Mexico. The United States would not allow any U.S. scientific institution to request any foreign official authorization – including Mexico’s – if the research in question was to take place in the marine belt outside the 3 nautical mile limit but within the 12 nautical mile outer boundary. Since the United States only recognized at that time a 3 nautical mile limit for the territorial sea, beyond this outer limit the waters were considered as high seas, with the corresponding freedoms recognized by international law, including the freedom of oceanic research. Accordingly, when a U.S. vessel intended to conduct marine scientific research activities within Mexico’s 3 nautical mile limit, only then the vessel in question would contact the competent Mexican federal agency to obtain the corresponding official permit. Although Mexico at that time did not have any explicit laws or regulations whatsoever governing the granting of “clearances” to foreign vessels for the conduct of marine scientific research, it was customary for foreign scientific and academic institutions to ask “permission” to conduct said activities as part of an “international courtesy” (International politesse) to inform the coastal State, in good faith, of their intentions to conduct scientific research in a marine area under the control of the coastal State. However, marine incursions to surreptitiously explore, quantify or simply detect the possible presence of marine resources – especially submarine oil deposits – was considered to be a “bad faith” activity, breaching the international custom to “normally” grant permission to a good faith request. Experience had taught U.S. marine scientists that the most practical way of obtaining the required permit was to simply write a letter directly to the Mexican federal agency deemed to be competent to authorize the research, depending upon the nature of said research. For example, if the research involved fish or other living resource, the permit in question would be directly obtained from the Mexican federal agency with jurisdiction over “fishing activities;” if the research involved marine geology, the permit would be sought from either the Secretariat of National Patrimony (Secretaría del Patrimonio Nacional ) or the National Mining Council (Consejo Nacional Minero), the two federal agencies who exercised jurisdiction and control over geological sites in Mexico’s territory. Exceptionally, in cases involving important scientific cruises (or other “special” cases), the U.S. scientific institution would prefer to ask the assistance of the Scientific Attaché at the American Embassy in Mexico City to act as

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the intermediary to handle the authorization process with the corresponding Mexican federal agency. At that time, it was not mandatory – as it is today pursuant to the Federal Public Administration Act (Ley de la Administración Pública Federal ) and the 1982 U.N. Convention on the Law of the Sea, to which Mexico is a party – to file a diplomatic note with Secretaría de Relaciones Exteriores (SRE) for each and every application or request for the conduct of foreign marine scientific research activities offshore Mexico.120 Actually, the interest of Mexico to give special attention to the process of administrative coordination of its different federal agencies involved in requests from foreign governments to conduct marine scientific research activities in marine spaces under that country’s sovereignty or jurisdiction started in the 1970’s and was the result of a combination of factors. Principal among those factors was the election of Luis Echeverría Alvarez as President of Mexico (1970–1976). As indicated elsewhere, President Echeverría developed a political philosophy to structure a new international economic order to accelerate the social and economic development of poor and developing countries, generally characterized as the “Third World.”121 In addition, he gave tremendous impetus to the role the oceans and their marine resources were to play in fostering Mexico’s economic and scientific development, having amended the Constitution to establish an exclusive economic zone of 200 nautical miles in 1976.122 Another decisive factor was the establishment by Echeverría of the National Science and Technology Council (Consejo Nacional de Ciencia y Tecnología) in 1970, as a counterpart of the National Science Foundation (NSF). Staffed with young graduates with Ph.D’s from prestigious universities in the United States and Europe, and endowed with sufficient funds to finance scientific research activities at the domestic and international levels; acquire scientific and

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See Article 28, para. I, of the Federal Public Administration Act (Diario Oficial of Dec. 29, 1976, as amended) which prescribes that: “It corresponds to the Secretariat of Foreign Affairs (SRE): I. To handle, propitiate and assure the coordination of actions abroad of agencies and entities of the Federal Public Administration;” and Article 250 of the U.N. Convention on the Law of the Sea prescribing: “Communications concerning the marine scientific research projects shall be made through appropriate official channels, unless otherwise agreed.” In the 1993 official publication by the Government of Mexico on the legal and administrative regime applicable to these activities, it is asserted: “All the applications to conduct scientific research by foreigners must be submitted through the diplomatic channels [to the Secretariat of Foreign Affairs] at least six months in advance to the date when the activities are to be initiated.” See Normatividad, supra note 67 at 53. See also infra note 315. See Chapter Three of this book: Genesis and Development of the Exclusive Economic Zone in Latin America, supra notes 13–17 and accompanying texts. See Chapter Four in this book, Mexico’s Exclusive Economic Zone, supra notes 21–44 and accompanying texts.

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technical equipment for Mexican universities and research centers; provide full scholarships and fellowships for Mexican nationals to study abroad, and empowered to formulate a National Plan of Science and Technology, Conacyt became not only a professionally strong and well-financed federal agency but a politically powerful Council, working closely with President Echeverría on scientific and technological matters, including marine sciences and marine research centers.123 At that time, the early discussions of UNCLOS III were taking place, addressing the importance of the so-called “Consent regime” for the conduct of marine scientific research, and Mexico was playing a leading role in these discussions at the United Nations and at numerous regional law of the sea conferences.124 In the Reglamentary Act enacted by Echeverría in 1976 setting up the legal substance of Mexico’s Exclusive economic zone,125 the topic of “Scientific research” was expressly included as an activity over which Mexico exercised jurisdiction, in accordance with the progressive legal developments taking place at that time at the Third Commission of UNCLOS III. Jointly with the Secretariats of Foreign Affairs (SRE); the Navy (SM); Public Education (Sep); Interior (Segob); Fishing (Depes); Ecology and Natural Resources (Semarnat); Communications and Transport (SCT), given their close contacts with Mexico’s scientific community and its ability to finance research projects at the domestic and international level (especially with the U.S., including the acquisition of scientific and technological equipment), Conacyt started to play a decisive role in the formulation of scientific policies in marine sciences, ecology, biology, geology and the protection of the marine environment, and its 123

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Among its multiple functions, CONACYT established numerous scientific and research centers throughout Mexico on biology, mathematics, advanced materials, optics, physics, astronomy, ecology, applied chemistry, competitive technologies, etc. In the marine sciences, this agency established what today constitute centers of excellence in this field: CICESE (Center of Scientific Research and Superior Education) in Ensenada; CIB: Center on Biological Investigations in La Paz, B.C.Sur; CICIMAR (Center of Scientific Research and Marine Sciences), and the strengthening of UNAM’s Center on Marine Sciences and Limnology in Mexico City and Guaymas. See José Luis Meseguer Sánchez. Nuevas Fronteras del Derecho del Mar (New Frontiers of the Law of the Sea). 4 Anuario Hispano-Luso Americano (1973) at 557–575; Eduardo Ferrero. The Latin American Position on Legal Aspects of Maritime Jurisdiction over Oceanic Research in W.S. Wooster (Ed.). Freedom of Oceanic Research (1973) at 97–136; and J.A. Vargas. Normative Aspects of Scientific Research in the Oceans. The Case of Mexico. LSI, Occasional Paper No. 23 (1974) and “La Investigación Científica Marina en la Conferencia de Caracas.” (Marine Scientific Research at the Caracas Conference), 9 Revista de Estudios del Pacífico (1975) at 57–67. See Chapter Four in this book, Ibid., Article 4, para. IV. (b), Reglamentary Act of the Eighth Paragraph of the Constitution relative to the Exclusive economic zone, published in the Diario Oficial of February 13, 1976.

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resources. At the same time, Conacyt financed graduate studies (at the Master’s and Doctoral programs) for Mexican scientists at the best universities abroad. At the international level and in coordination with SRE, Conacyt negotiated and signed bilateral agreements on science and technology with over one hundred countries, including a special program for the training and exchange of young technicians in scientific, industrial and technical areas of the highest priority for Mexico. Conacyt continued to maintain its relationships with Mexico’s marine scientific community by formulating and publishing a “Marine Program on Science and Technology for the Utilization of Marine Resources” in October of 1982.126 This ambitious program was based on these two fundamental premises: 1. For Mexico to exercise true sovereignty over its exclusive economic zone, its territorial sea and its coastal zone, it is necessary to develop the scientific capabilities to explore, exploit, administer and also negotiate with other countries in matters regarding [Mexico’s] marine natural resources for the benefit of the Mexican people, so these will effectively trigger a social and economic development in the country generating employment, increasing the production and fostering a better distribution of income; and 2. To reach said goals, it is indispensable to establish an entity or coordinating mechanism that assures, with an interdisciplinary and inter-sectorial approach, both from a scientific and political viewpoints, the required participation of the institutions of higher education, Secretariats of State, decentralized agencies, the productive sector and its users, the participation in the formulation, implementation and following up of a National Program on Oceanographic Research. By acting this way, unnecessary duplications shall be avoided and the available resources would be maximized. It would be assured that the results of this Program shall be available to the interested sectors. In addition, pertinent services are to be established.127

Among the policies advanced by this National Marine Program, Conacyt included the convenience of utilizing international cooperation, both bilateral and multilateral, as the basis to strengthen the national marine capabilities through the exchange of researchers, professors and specialists of the highest level in international research projects within Mexico’s scientific priorities, and 13. To regulate the marine research activities by foreigners in national waters establishing adequate mechanisms for the decision, degree of participation of Mexican scientists and that the raw results of any [foreign] marine cruises be given to Mexico to enrich the documentary banks regarding our own seas. In

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Ciencia y Tecnología para el Aprovechamiento de los Recursos Marinos (Situación Actual, Problemática y Políticas Indicativas) (Science and Technology for the Utilization of the Marine Resources). CONACYT, México (1982). Ibid. at 112.

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Gradually, as the years went by and Conacyt continued to maintain its relationships with Mexico’s scientific community, this federal Council contributed to the strengthening and coordination of the administrative process involved in the evaluation of applications by foreign vessels to conduct marine scientific research activities in Mexico’s marine spaces under its sovereignty and jurisdiction. In sum, the National Science and Technology Council (Conacyt) played a pivotal role in the 1970s and early 1980s in: (i) Proposing the formal creation of an inter-agency federal entity to coordinate, evaluate and decide on requests from foreign nations to conduct marine scientific research activities offshore Mexico; and (ii) Suggesting the regulation of said marine activities, enumerating some explicit conditions or requirements with which foreign scientists and institutions were to comply while conducting marine research activities in Mexico.

B. Multiple Federal Agencies and Statutes Involved in the Conduct of Marine Scientific Research by Foreign Countries Geographically located in a physical setting ranging from tropical jungles to deserts, long and elevated chains of mountains, intriguing peninsulas like Baja California and Yucatán, long coastlines in the Pacific and the Gulf of Mexico, in the Caribbean Sea and its own Gulf of California; and endowed with a rich and fascinating flora and fauna; with archeological sites, colonial cities with picturesque architecture and magnificent churches; with the largest number of unique Indigenous peoples in the western hemisphere; a rich and interesting culture and a long and rich history, for centuries Mexico has been an open and a most intriguing nation for foreign scientists from European countries, Canada and, in particular, the United States. Therefore, it is only natural that today a considerable number of Mexican federal agencies are directly involved in evaluating and processing the large number of applications from foreign scientists and academic institutions who are interested in studying, observing, exploring, investigating, collecting, drawing, photographing, classifying, examining and researching intriguing specimens, places, objects and individual subjects throughout the Republic of Mexico every year.

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Id., Políticas Indicativas del Programa Nacional Indicativo para el Aprovechamiento de los Recursos Marinos (Promar) (Indicative Policies, National Indicative Program for the Utilization of the Marine Resources (Promar)) at 114. (Emphasis added).

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These applications include, of course, those involving the conduct of marine scientific research activities. The Federal Oceans Act (FOA) in 1986 is the first legislative enactment published by Mexico that expressly refers to the conduct of marine scientific research in marine spaces under the sovereignty or jurisdiction of that country. Since Mexico is a party to the 1982 U.N. Convention on the Law of the Sea, FOA’slegal content has been profoundly influenced by this international convention. This legal influence is present not only regarding the legal regime applicable to marine scientific research, to which Mexico adheres,129 but also with respect to the exercise of control (i.e., whether the exercise of sovereignty rights, jurisdiction or the projection of specialized “competences”) in the marine spaces controlled by Mexico. As seen earlier,130 the legal regime that applies to these activities and marine spaces derives from Mexico’s Political Constitution of 1917 and the pertinent federal statutes.131 In this regard, Article 6 of the FOA prescribes that it corresponds to the Federal Executive Power (Poder Ejecutivo Federal) the enforcement of said Act “through the various [federal] agencies of the Federal Public Administration, and in accordance with its Organic Act and other pertinent legal provisions in force” regarding: I. Works (Construcciones), artificial islands, installations and marine structures; II. Living resources, including their conservation and utilization; III. Non-living marine resources, such as oil and natural gas deposits, metallogenetic holes, polymetallic nodules, etc., including their utilization and conservation; IV. The economic utilization of the sea, including a) minerals dissolved in waters; b) production of electrical or thermal energy from the waters, currents and winds; c) harnessing of the solar energy in the sea; d) development of the coastal zone; e) aquaculture; f) establishment of national marine parks; g) promotion and recreation of tourism; and h) establishment of fishing communities; V. The protection and preservation of the marine environment, including the prevention of marine pollution; and VI. The conduct of marine scientific research activities.132

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See, in particular, Articles 238–264 of the 1982 Convention. See Chapter One of this book, titled: Mexico and Its Territory. Constitutional Principles and Foundations. Article 6 of the FOA is explicit in prescribing that: “The sovereignty of the Nation and its sovereign rights, jurisdictions, and authority (Competencias) within the boundaries of the maritime zones . . . shall be exercised in accordance with the Political Constitution . . ., international law and the applicable national legislation.” Art. 6, FOA. Originally published in the Diario Oficial of January 8, 1986, and Corrigendum published in the D.O. the following day: January 9, 1986 (emphasis added).

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Under Mexican law, the Federal Executive Power is to enforce the FOA and all other legislative enactments passed by Congress through its different departments or agencies, known in that country as Secretariats of State (Secretarías de Estado). Each of these departments or ministries exercises its corresponding duties and functions and its legislatively assigned administrative jurisdiction in accordance with the “Organic Act of the Federal Public Administration” (Ley Orgánica de la Administración Pública Federal).133 Generally speaking, the structure of Mexico’s federal administration is similar to that of the United States. These federal agencies form a part of that country’s Federal Executive Power, and jointly with the Legislative and the Judicial Power, constitute Mexico’s central government.134 Agencies According to FEPA, out of a total of nineteen departments,135 six of them participate in the administrative process applicable to the conduct of marine scientific research by foreigners in the marine spaces under Mexico’s sovereignty or jurisdiction. These six departments are: 1) Gobernación (Segob); 2) Relaciones Exteriores (SRE); 3) Marina Semar); 4) Environment (Semarnat); 5) Educación Pública (Sep); and 6) Comunicaciones (SCT). 1. Interior Department (Segob) Although from a legal standpoint all the Secretariats are placed at the same level, Segob occupies a salient and unique place politically. To give an idea of Segob’s political power, suffice to say that many Secretaries of the Interior have become the President of Mexico. Segob is empowered to investigate and direct Mexico’s political activities and political parties at the federal, state and local

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Ley Orgánica de la Administración Pública Federal, published in the Diario Oficial of December 19, 1995, and amended multiple times (hereinafter FEPA). See Mexico’s Political Constitution, Art. 49 regarding the Division of Powers; Arts. 80–93 for the Executive Power; Arts. 51–79; and Arts. 94–107. See also Jorge A. Vargas. Introduction to Mexico’s Legal System, Mexican Law for the American Lawyer (2009) at 3–53. The 19 Secretariats and one Office are: 1) Gobernación (Interior); 2) Relaciones Exteriores (Foreign Affairs, SRE); 3) Defensa Nacional (National Defense); 4) Marina (Navy); 5) Seguridad Pública (Public Security); 6) Hacienda y Crédito Público (Treasury and Public Credit); 7) Desarrollo Social (Social Development); 8) Medio Ambiente y Recursos Naturales (Environment and Natural Resources); 9) Energía (Energy); 10) Economía (Economy); 11) Agricultura, Ganadería, Desarrollo Rural, Pesca y Alimentación (Agriculture, Livestock, Rural Development, Fishing and Foodstuffs); 12) Comunicaciones y Transportes (Communications and Transport); 13) Función Pública (Public Function); 14) Educación Pública (Public Education); 15) Salud (Health); 16) Trabajo y Previsión Social (Labor and Well-Being); 17) Reforma Agraria (Agrarian Reform); 18) Turismo (Tourism); and 19) Consejería Jurídica del Ejecutivo Federal (Office of the Legal Counsel), pursuant to Article 26, FEPA.

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levels.136 It formulates and conducts the country’s population and immigration policies, and exercises absolute discretion regarding the admission and expulsion of foreigners to the country.137In this regard, Segob may be similar to the U.S. Department of Homeland Security; the Central Intelligence Agency (CIA); the U.S. Immigration and Customs’ Enforcement Office (ICE) or the former U.S. Immigration and Naturalization Service (INS). Segob is also the agency that has to issue the special immigration Visa foreign scientists must hold to conduct their investigations in that country.138 Regarding marine scientific research by foreigners, most of the islands in that country are under Segob’s direct and exclusive control. So, any foreign research to take place on islands will trigger Segob’s immediate involvement. 2. Foreign Affairs (SRE) This Secretariat is equivalent to the U.S. Department of State. Pursuant to the 1982 U.N. Convention on the Law of the Sea, SRE is the only federal department authorized to receive the official communications from foreign countries (including the United States) requesting authorization to conduct marine scientific research to take place in Mexico’s marine spaces.139 SRE’s Legal Office (Consultoría Jurídica) receives the foreign request and then transfers it internally to the General Directorate for North America (Dirección General de América del Norte) who is then to contact each of the federal agencies authorized by Mexican law (i.e., FEPA) to participate in the process of evaluating and deciding upon whether to grant or deny said foreign scientific request. FEPA prescribes that SRE is to “coordinate abroad the actions of the agencies and entities of the Federal Public Administration” and, without affecting the exercise of their respective functions, “conduct Mexico’s foreign policy, thus intervening in any kind of treaties, agreements or conventions to which Mexico

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Article 27, FEPA. Article 33 of the Constitution exclusively empowers Segob “to expel, immediately and without a trial, any foreigner whose presence is deemed inconvenient.” Mexico does not have immigration courts. See Jorge A. Vargas. Rights and Obligations of Americans in Mexico (Chap. 13). Mexican Law for the American Lawyer. Carolina Academic Press ( 2009) at 451–492. See Jorge A. Vargas. The Immigration Law of Mexico (Chapter 20). Mexican Law: A Treatise for Legal Practitioners and International Investors (West Group, 1998), §20.36, Vol. 2 at 161–208. See supra note 133 and the accompanying text.

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is a party.”140 At the end of this lengthy, technical and complicated administrative process,141 the final decision rests exclusively upon the SRE.142 Administratively, the fact that Mexico became a party to the 1982 U.N. Convention on the Law of the Sea, and that this convention explicitly prescribed that “communications concerning the marine scientific research projects shall be made through appropriate official channels, unless otherwise agreed,”143 contributed greatly, from Mexico’s domestic law, to clarify any questions on this matter and at the same time to structure an administrative process associated with the conduct of foreign marine scientific research in the marine spaces under Mexico’s sovereignty or jurisdiction. 3. Mexico’s Navy (Semar) Pursuant to FEPA,144 Semar is empowered to exercise: a) Mexico’s sovereignty in the territorial sea, the air space and the country’s coastlines; b) surveillance over the Mexican maritime zones; c) the measures and jurisdictions granted by the pertinent legal provisions and the international instruments of which Mexico is a party in the contiguous zone and the exclusive economic zone; d) perform marine police functions to maintain law and order in Mexico’s marine zones. In addition, Semar provides emergency and medical services to victims of hurricanes, tornadoes, floods, and other catastrophes; conducts drug interdiction operations in Mexico’s territorial sea and the contiguous zone; protects marine turtle nests, habitat and baby turtles in Mexican coasts; and

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Art. 28, para. I, FEPA. In addition, SRE is authorized “to intervene in questions regarding the country’s territorial limits and international waters” (Para. IV). This process starts with the SRE document: Formato de Solicitud para la Expedición de Permiso para Realizar Investigación Científica por Extranjeros en Territorio Mexicano (Application Form for Issuing a Permit to Conduct Scientific research by Foreigners in the MexicanTerritory. This application applies to both marine and non-marine scientific research. The application contains 54 specific and technical questions and its final part (Questions 49–54) must be filled out by the U.S. Embassy. SRE has produced a detailed set of instructions for filling out the Application (that must be typed or printed in Spanish). The American Embassy in Mexico City has included in its web site a section devoted entirely to providing up to date information as to the requirements, Mexican official applications and time frames established by the Government of Mexico for the conduct of scientific research. In addition, a highly trained, experienced and competent U.S. official handles each of these requests in concert with the U.S. Department of State and the U.S. scientific institution involved. The web site is located at: http://mexico.usembassy.gov/eng/env_scientific_research. html Visiting this site is indispensable for any U.S. (or any foreign) scientist interested in doing marine scientific research in that country. Art. 250, U.N. Convention on the Law of the Sea of 1982. Art. 30, paras. IV, V and VII, FEPA.

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conducts surveillance and other operations in all of Mexico’s marine zones.145 In 1988, Semar was explicit in recognizing that: SRE is the federal agency that finally determines whether to grant or decline the permit for foreign cruises (Cruceros) to take place within Mexico’s jurisdictional waters. In order to take one or the other decision, SRE does it based upon the technical opinions requested from the different governmental agencies legally involved in this process, among them: Sedue (Secretariat of Urban Development and Ecology, later substituted by today’s Semarnat). Certainly, one of the conditions for the conduct of said cruises consists in the participation of Mexican scientists with a solid professional preparation, in addition to the presence of government observers (Observadores gubernamentales). It is not usual to deny the permit for this kind of investigations; unless there is a special circumstance.146

a. Semar and CONACIO More specifically, Semar is to conduct hydrographic works in the coasts, islands, ports and navigable waters, and to organize the archives of nautical charts and corresponding statistics; and “intervene in the granting of permits for foreign or international scientific expeditions or explorations in national waters.”147 This motivated Semar to establish through a special “Presidential Accord” (Acuerdo Presidencial ), a “National Coordinating Commission of Oceanographic Research” (Comisión Nacional Coordinadora de Investigación Oceanográfica or CONACIO), signed by President Vicente Fox Quesada in 2006.148 In its rationales, this Accord expressly referred to the functions granted upon Semar by FEPA and, after taking into consideration the fact that numerous federal entities, public agencies, universities and institutions of higher education conduct oceanographic research activities in that country, it concluded that “it [was] necessary to join efforts with the purpose of achieving a sustainable utilization of the natural resources, avoiding duplicity of efforts and of financial

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Unlike the United States (and other countries), Mexico does not have a “Coast Guard” so Semar and its vessels, planes and warships are empowered to protect Mexico’s islands, coastlines, ports, and other marine infrastructure, including PEMEX’s offshore platforms and installations. Personal communication to the author from Rear Admiral Gilberto López Lira, General Director of Oceanography, Secretariat of the Navy (Semar), Official communication No. 355 dated January 27, 1988. Art. 30, paras. XI and XII, FEPA. Acuerdo Mediante el cual se Crea la Comisión Nacional Coordinadora de Investigación Oceanográfica (Accord creating the National Coordinating Commission of Oceanographic Research as a Permanent Inter-Secretarial Commission whose object is to Analyze, Propose and coordinate the Actions and Activities of the Agencies and Entities of the Federal Public Administration on Matters of Oceanographic Investigation undertaken in Mexico’s Marine Zones), published in the Diario Oficial of February 3, 2006.

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expenses.”149 Accordingly, the above mentioned Commission (known as Conacio) was established; its purpose was “to analyze, propose and coordinate the actions and activities of the agencies and entities of the federal public administration on matters of oceanographic investigation undertaken in Mexico’s marine zones.” Conacio is formed by these seven Secretaries: 1) Navy (who presides over it); 2) Segob; 3) Foreign Affairs; 4) Environment; 5) Agriculture; 6) Public Education; and 7) the Conacyt’s Director General.150 Its specific functions include: i) the coordination of regional and national studies on marine sciences; ii) produce a National Program of Oceanographic Research (NPOR); iii) Collect data on oceanographic studies in Mexico’s marine zones; iv) promote Mexico’s scientific and technical participation in international oceanographic organizations; v) optimize the utilization of ships, equipment and technical instruments; vi) propose programs in the education, training, development, etc. of marine sciences; vii) provide technical assistance to States and municipalities on oceanographic projects; viii) establish permanent mechanisms for communication and coordination among federal agencies and private and public institutions regarding the NPOR.151 Evidently, Conacio152 plays an important promotional and coordinating role in the area of marine sciences at the domestic level. No one in Mexico questions, inter alia, the imperative necessity of forming capable marine scientists; establishing and strengthening educational and technical institutions in this field; funding the acquisition of scientific and technical marine instruments and equipment for these institutions; training of young scientists, etc. However, from an international perspective, Conacio’s existence and official functions may be perceived as unnecessary or duplicative of the coordinating efforts already displayed by SRE regarding the conduct of foreign marine scientific research projects. Furthermore, foreign institutions and scientists may be confused by the mere official presence of Conacio and the possible rivalry that may exist between SRE and Conacio. Thus, Mexico is to reach a clear understanding of the meaning of coordination and promotion of “oceanographic research,” on the one hand, and the more delicate, legal and diplomatic aspects associated with the coordination required among key agencies of Mexico’s Federal Public Administration

149 150 151 152

Ibid. at 5. Id. Article V, Id. at 6. Conacio participates, inter alia, in these specific programs: a) Early Warning System against tropical hurricanes; b) Coordinate the administrative procedure to grant clearances to foreign vessels for marine scientific projects; c) Exchange information with the U.S. System of Comprehensive Oceanic Information; a catalogue of Mexico’s islands. Conacio has a web site at: www.semar.gob.mx.

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regarding the conduct of marine scientific research by foreign vessels in the marine zones subject to Mexico’s sovereignty or jurisdiction. Whereas Conacio should address purely domestic oceanic matters of importance for that country, SRE carries sensitive legal and diplomatic questions affecting Mexico’s foreign affairs, the interpretation and application of the 1982 U.N. Convention on the Law of the Sea to which Mexico is a party, and other legal questions under general international law. 4. Environment (Semarnat) This Secretariat (known by its acronym Semarnat) formulates, implements and coordinates Mexico’s environmental policies to foster, protect and conserve eco-systems and natural resources, including the living resources of the oceans; the protection of threatened or endangered living marine resources; the establishment of open and closed fishing seasons, etc.153 The National Institute of Ecology (INE) is part of Semarnat. This Institute plays an important role in formulating the scientific policies for the protection and conservation of all species in Mexico, including marine species.154 When a foreign research vessel plans to conduct scientific research relating to fish (or any other marine organism) it must first obtain the necessary authorization from the National Commission on Aquaculture and Fishing (Comisión Nacional de Acuacultura y Pesca, Conapesca), and if the foreign scientist plans to “collect samples of wild flora and fauna for scientific purposes” (Permit for Wildlife Collection) it must obtain this permit from Semarnat.155 If the methods, activities, technologies or other tools to be used for the implementation of the proposed marine scientific research are considered as likely to cause “a negative or adverse impact upon the environment,” the foreign scientist must submit, through diplomatic channels, an “Environmental Impact Assessment” (EIA), or request it from the Directorate General of Semarnat,156 as prescribed by Article 30 of the General Act for Ecological Balance and

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Art. 32-Bis, FEPA. Currently, INE coordinates scientific research relating to the preservation of the environment and the conservation of biodiversity pursuant to a decree published in the Diario Oficial of January 21, 2003, as amended by D.O. of November 26, 2006. In this case, the foreign scientist must fill out Semarnat’s General Office of Wildlife “Application Form for Issuance of the Special Research Permit and/or Collect of Wildlife Flora and Fauna for Scientific Purposes, and Other Biological Resources for National and Foreign Scientists” (SEMARNAT: Dirección General de Vida Silvestre. Formato de Solicitud para la Expedición del Permiso Espacial de Investigación y/o Colecta con Fines Científicos de Flora y Fauna Silvestre, y Otros Recursos Biológicos, para Investigadores Nacionales y Extranjeros). This technical “assessment” (EIA) is very similar to the Environmental Impact Statement, regulated by Art. 30 of Mexico’s General Act for Ecological Balance and Environmental Protection, and Arts. 10–13 of the corresponding Regulations. See Federico Ruanova. Environmental Law in Mexico, Mexican Law Treatise, §12.25, Vol. 1, supra note 94 at 433–478.

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Environmental Protection, and the corresponding Articles 10, 11, 12 and 13 of its Regulations.157 In this case, all related legal and technical requirements must be complied with pursuant to the General Act for Ecological Balance and its Regulations. The Mexican competent authority has a sixty-day period, as of the date received, to evaluate the Environmental Impact Assessment. If the complexity of the project so requires, this period of time may be extended to another sixty-day period.158 5. Public Education (Sep) The Secretariat of Public Education addresses policy questions relating to Mexico’s public education at all levels, pursuant to Article 3 of Mexico’s Political Constitution. In accordance with that country’s need to promote the development of marine sciences, Sep is in charge of establishing and administering technical schools and centers on marine sciences, fishing and boating, including graduate and post-graduate programs, at the domestic and international levels. It also provides assistance and technical guidance on an array of educational matters to States and municipalities.159 6. Communications and Transport (SCT) Basically, SCT is the federal authority that regulates Mexico’s air waves with respect to any use of wireless communications in that country, such as radio or television transmissions. More specifically, SCT officially assigns the radio frequencies used in marine communications from Mexican and foreign vessels (including oceanographic, hydrographic or marine scientific platforms), or from Mexican and foreign airplanes, hydroplanes or helicopters. Ships involved in marine scientific research activities must accompany the “Application for Temporary Approval for Use of Radio Frequencies (during State Cabinet Member Visits) or Operations of Foreign Research Vessels.” In Mexico, the Federal Commission of Telecommunications (Comisión Federal de Telecomunicaciones, Cofetel) is the federal agency empowered to issue this temporary approval.160 If aircraft or any vehicle(s) are going to be involved in 157

158 159 160

Information taken from SRE: Instructivo para el llenado del Formato de Solicitud para la Expedición de Permiso para realizar Investigación Científica por Extranjeros en Territorio Mexicano (Instructions for Filling out the Application Form for Issuance of Permit for Scientific Research Conducted by Foreigners in Mexican Territory). Ibid. Art. 38, FEPA. Information taken from SRE: Instructivo para el llenado del Formato de Solicitud para la Expedición de Permiso para realizar Investigación Científica por Extranjeros en Territorio Mexicano (Instructions for Filling out the Application Form for Issuance of Permit for Scientific Research Conducted by Foreigners in Mexican Territory).

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the scientific project, said aircraft161 and the vehicle(s)162 must obtain the corresponding official authorization. Legislative Enactments Visiting Mexico for the first time tends to be a unique experience. The U.S. scientist not only enters into a different nation with different people, culture, religion and history but quickly finds herself immersed in a place with a contrastingly different legal system. Like the rest of Latin America, Mexico belongs to the civil legal tradition, considered to be one of the oldest and most geographically widespread.163 Legally, the involvement of numerous federal agencies results in the application of an even larger number of legislative enactments: from codes and statutes (both federal and state) to regulations and even international treaties and conventions to which Mexico has become a party. Merely for descriptive purposes, the following review provides an idea about the major statutes that may be associated with the conduct of marine scientific research activities in Mexico’s marine zones: 1. General Population Act (Ley General de Población).164 This federal Act controls and regulates all kinds of legal and administrative questions pertaining to the legal entry into Mexico and the eventual exit from that country, required type of visa, duration of stay, special requirements to comply before leaving the country, including payment of taxes (if any), etc.

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The “Aircraft” is to attach copies of: 1) The Aeronavigation Certificate (Certificado de Aeronavegabilidad ); 2) Valid licence of pilots; 3) Mexican and international insurance policies covering civil responsibility/liability for damage to a third party; 4) The characteristics and description of equipment to be used; and 5) Registration number. In addition, it is necessary to provide: a) The owner’s name; b) The pilot’s name and grade; c) Names of participating crew members and scientists; d) Dates of entry and exit into and from the Mexican airspace; e) Purpose of overflights and/or landings; f) Origin, route, destination, name and location of airports that will be used; and g) identification signal. Vehicles must attach: 1) a copy of the registration of property; 2) Indicate if the vehicle will be rented. See John H. Merryman. The Civil Legal Tradition (1984). For a general overview of Mexico’s legal system, see J.A. Vargas. Mexican Law for The American Lawyer (CAP, 2009). Ley General de Población, D.O. of December 31, 1975 (as amended); and its Regulations (Reglamento, D.O. of August 31, 1992, as amended).

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2. Act of Ecological Balance and Environmental Protection (Ley General de Equilibrio Ecológico y Protección al Ambiente).165 This federal statute addresses all questions relative to the environment and its protection, from environmental policies, biodiversity, sustainable utilization of natural elements to protection of the environment (including the marine environment and its living resources, Arts. 117–133), highly hazardous activities (Arts. 145–149), hazardous materials and residues (Arts. 150–153), including their importation and export from Mexico; right to environmental information (Arts. 159-Bis 1-Bis 6); safety and control measures and sanctions (Art. 160); inspections and monitoring (Arts. 161–169); administrative sanctions (Arts. 171–175-Bis), etc. 3. Fishing and Aquaculture Act;166 4. Civil Aviation Act;167 5. National Waters Act;168 6. Navigation Act;169 7. General Act of Wildlife;170 8. Customs Act;171 9. General Telecommunications Act; 10. Ports Act;172 and 11. Regulations to Prevent and Control Marine Pollution.173

5. Legal Regime Pursuant to the 1986 Federal Oceans Act Contrary to the centuries old practice by major powers of conducting marine scientific research offshore developing coastal States, the 1982 U.N. Convention on the Law of the Sea changed the rules of this practice. This change may 165

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Ley General de Equilibrio Ecológico y Protección del Ambiente, D,O, of January 28, 1988, as amended). Published in the Diario Oficial (D.O.) of July 24, 2007. D.O. of July 5, 2006, as amended. D.O. of December 1, 1992; latst amendment in D.O. of April 18, 2008. D.O. of June 1, 2006. D.O. of July 3, 2000, last amendment on October 14, 2008. D.O. of December 15, 1995; last amendment on February 2, 2006. D.O. of July 19, 1993. The complete text (in Spanish) of any federal statute or federal codes, may be downloaded from the web site of Congreso de la Union (Mexico’s General Congress) at: www.cddhcu.gob .mx. Each of Mexico’s 32 States (including the Federal District) has its own web site where they post their own local codes (civil, criminal, etc.) and some of their major State statutes. For an updated (2009) list of: Electronic Guide to the Best Mexican Law Sites and the list and contact points of all the Mexican Consulates in the United States, see Jorge A. Vargas. Mexican Law Dictionary. Thomson/West (2009).

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be identified as a distinct example of the so-called “new law of the sea” versus the “old law of the sea” that was formulated by the major naval powers. Gradually, throughout the negotiations that took place within UNCLOS III, the so-called “Consent regime” became the essential piece, the sine qua non component that was inextricably embedded in the emerging legal regime being formulated at that conference for the conduct of marine scientific research in the marine environment. Basically, the “Consent regime” is based upon three legal premises: First, the coastal State has the exclusive right to regulate and authorize the conduct of marine scientific research in the marine spaces under its sovereignty or control;174 Second, said research can only take place “with the express consent of and under the conditions set forth by the coastal State;”175 and Third, the conduct of said marine research is to be governed by the “General principles” expressly enunciated by the 1982 Convention.176 Accordingly, the “Consent regime” incorporated in the language of the 1982 U.N. Convention on the Law of the Sea – as reflected in Part XIII, Articles 238–262 – was to say the least, a surprising addition to said convention for the United States, and for other technologically advanced countries such as the United Kingdom, Germany, Japan, France, Canada, etc. Based on the legal regime derived from the 1958 Geneva Convention on the Continental Shelf (Art. 5, para. 8) the U.S. scientific, oceanographic and naval vessels conducted marine scientific research activities offshore foreign countries – especially developing ones, including Mexico – without having to request any permission or authorization; however, this regime changed as a result of the consent regime established by the 1982 LOS Convention. Furthermore, during those years of oceanic freedom, the U.S. scientific community enjoyed the previous regime in accordance with the premises of the traditional law of the seato conduct investigations or explorations in the marine environment since those activities contributed to the advancement of humankind.177 174

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See Art. 245 (Territorial sea); Art. 248 (Duty to provide information to the coastal state) 249 (Duty to comply with conditions); Art. 253 (Suspension or cessation of marine scientific research); and Art. 256 (research in the International Area), LOS Convention of 1982. Articles 245 and 246 regarding the Exclusive economic zone and the continental shelf. According to Article 240, the “General Principles for the conduct of marine scientific research (MSR)” mandate that MSR shall be conducted: 1) For peaceful purposes only; 2) With appropriate scientific methods compatible with the Convention; 3) Not unjustifiably interfere with other legitimate uses of the sea compatible with the Convention and shall be duly respected in the course of such uses; and 4) In compliance with all relevant regulations adopted in conformity with the Convention. In 1972, at the beginning of the global discussion on the legal regime on marine scientific research as part of the law of the sea, the National Academy of Sciences published a booklet

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Since the early 1970’s, when the “Consent regime” was beginning to be timidly articulated before UNCLOS III by the delegations of developing countries (including Mexico), the U.S. scientific community (with the vocal support of other developed powers) launched a well-orchestrated and long sustained effort to characterize the newly emerging idea of the consent regime (or any other regime securing the consent of the coastal State), as an attempt to stop or to place insurmountable obstacles to the progress of science and technology in the marine environment.178 In a widely distributed booklet published in 1972 by the National Science Foundation (NSF), an “International Marine Science Affairs Panel” formed by leading U.S. scientists from academia, scientific institutions, major corporations and naval departments, it was recommended: Revisions to the [1958] Continental Shelf Convention “to increase restrictions on research should be resisted; preferably, revisions should eliminate the present “consent” requirement. Any regime for resources of the seabed beyond the limits of national jurisdiction should involve minimal interference with scientific research. The United States should oppose allocation of exclusive rights of exploration of this seabed. Freedom of scientific exploration and research should be considered an integral part of the doctrine of the freedom of the seas.179

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promoting the “Freedom of scientific research” where the following statements included, inter alia: a) “The United States should act to secure the maximum freedom of access for scientific exploration and research in all parts of the world ocean,” at 72; b) “Freedom of scientific exploration and research should be considered as an integral part of the doctrine of the freedom of the seas. Scientists should oppose restraints on marine scientific science that derive from agreements on other uses of the sea,” at 72; c) “The United States should make a unilateral declaration allowing scientific research in areas outside internal waters but subject to its jurisdiction, provided certain conditions are observed,” at 76. See International Marine Science Affairs, National Academy of Sciences (NAS). Washington, D.C. (1972) (Emphasis added) (hereinafter Int’l MSR). See, for example, the works by Wooster, Van Dyke and Ross, supra note at 179. See also “Freedom of Access to Ocean Regions for Investigative Purposes,” where it is asserted that “The goal of marine scientists is maximum freedom of access for scientific investigation and exploration of all ocean regions, irrespective of political boundaries,” in Int’l MSR at 63 (Emphasis added). Int’l MSR, Ibid. at 8. (Emphasis added). Similar ideas are found in Alfred H.A. Soons. Marine Scientific Research and the Law of the Sea (1982), passim; Olivier Freymond. Le Statut de la Recherche Scientifique Marine en Droit International (1978); Wooster. Research in Troubled Waters: U.S. Research Vessel Clearance Experience 1972–1978. Ocean Development and International Law (ODILA) (1981) at 219–239; Tullio Treves. Principe du Consentement et Recherche Scientifique dans le Nouveau Droit de la Mer, Revue General de Droit International (1980) at 253–268; J. Knauss. Development of the Freedom of Scientific Research. Issue at UNCLOS III, ODILA (1973) at 93–120; W.T. Burke. A Report on International Legal Problems of Scientific Research in the Oceans. Clearinghouse for Federal Scientific and Technical Information, Doc. PB-177–724. Springfield, Va. (1967); and E.D. Brown. Freedom of Scientific Research and the Legal Regime of the Hydrospace. International Journal of Intrl. Law (1969) at 327–380, etc.

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Turning now to Mexico, it should be recalled that since the early discussions on the law of the sea, Mexico embraced the “Consent regime” as a key component of the legal regime applicable to marine scientific research under the new law of the sea convention.180 Mexico’s position on this topic derived from the novel and democratic ideas advanced by the Latin American and Caribbean countries at regional meetings, such as the Declarations of Lima of 1970181 and Santo Domingo of 1972.182 At the international level, these Declarations were clear pronouncements to recognize the right of the coastal State to regulate the conduct of marine scientific research by foreign vessels in adjacent maritime areas established for economic purposes (“resource-oriented zones,” such as the patrimonial sea) beyond the territorial sea. In addition, the Lima Declaration was very specific in articulating two unprecedented but important rights in favor of the coastal State: first, the right of this State not only to simply “authorize or monitor” the conduct of said research but, more importantly, “the right to participate in all the activities of scientific research” when conducted in marine spaces under its sovereignty or jurisdiction. And, second, the right “to receive the data and results obtained from said investigations.”183 As to the “Participation right,” developing coastal States have interpreted this right as a means to maximize its benefits. Accordingly, these States are now of the opinion that the right to participate applies to all three phases of any research project, namely: (a) the planning stages when the project is scientifically

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See Vargas, Normative Aspects of Scientific Research in the Oceans, supra note 124, passim. The 1970 Lima Declaration expressly recognized in numeral 5 of the “Common Principles of the Law of the Sea” that: “The right of the coastal State to authorize, monitor and participate in all the activities of scientific research to take place in the maritime zone under its sovereignty or jurisdiction, and to receive the data and results obtained from said investigations.” (Emphasis added). For a discussion of this Declaration, see Chapter Three in this book: Genesis and Development of the Exclusive Economic Zone in Latin America. In the “Patrimonial Sea” section of the 1972 Santo Domingo Declaration, paragraph 2 reads: “The coastal State has the duty to promote and the right to regulate the scientific investigations taking place in the Patrimonial Sea, as well as to adopt the necessary measured to avoid the pollution of the marine environment and assure the sovereignty over the [natural] resources.” For a discussion of the Santo Domingo Declaration, see Chapter Three in this book. (Emphasis added). For some additional discussion on these matters from the viewpoint of developing countries, see Vargas, Normative Aspects, supra 128 at 5–8. See Eduardo Ferrero. The Latin American Meeting on Aspects of the Law of the Sea and Oceanographic Research, asserting that “The Latin American countries established, in the Lima Declaration, a clear position on oceanographic research” and that all the countries at this meeting supported “the right of the coastal State to authorize, supervise and participate in all scientific research activities . . . and to be informed of the findings and the results of such research.”

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defined and structured;184 (b) the intermediate implementing phase, when the project is being conducted while the vessel is in the marine space of the chosen developing coastal State;185 and (c) the final phase, when the scientists from the technologically advanced State are in possession of all the data, samples, specimens, etc. taken from the marine spaces under the control of the developing coastal State, and said scientists are then ready to dissect, evaluate, analyze and produce the project results.186 The inclusion of these two new “rights” for the benefit of developing coastal States, as detailed in Article 249 of the 1982 Convention, was an unprecedented request from the viewpoint of technologically advanced countries. The eventual inclusion of this right in the language of the LOS Convention may contribute to induce scientists from these countries to have a less unilateral approach in the formulation of the marine scientific research project. As a result, these scientists might include in their project some of the interests, needs or priorities of the developing coastal State in whose marine waters the project was to take place. This right in favor of the developing coastal State to participate in all the phases of the marine scientific research project added a new legal and scientific dimension to the conduct of marine scientific research. Mexico was an influential voice, first at a regional Latin American level and later in similar law of the sea meetings in Africa and Asia, to propagate the benefits of the “Consent regime.”187 184

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Developing coastal States claim that this initial phase is of fundamental importance. They are convinced that the participation in this phase is the only way to have some expectation that the MSR project may incorporate some of the interests, priorities or needs of the developing State. To attempt to “insert” these developing State demands at a later phase would be virtually impossible, thus eliminating any scientific relationship between the MSR project and the local interests of the coastal State. The MSR project would only be of benefit to the advanced State. Traditionally, advanced States tended to extend some invitation to local developing State scientists to “participate” in the MSR project. However, these “invitations” resulted in the local scientists acting as mere observers in a project usually too advanced or sophisticated to offer any benefits or interests to the local scientists from the poor coastal State. In other words, the scientific benefits were unilaterally flowing to the technologically advanced State. From the perspective of the developing coastal State, the final phase includes not only the ability to co-author scientific papers with the scientists from the advanced State involved in the MSR project but also the right to demand a copy of the preliminary reports and final results and conclusions of the project, including the right to request scientific and technological assistance to process, analyze and understand the final results. In other words, the right of the poor coastal State to be provided with an assessment of such data, samples and research results. Several reasons may have contributed to give Mexico a clear interest in favor of developing a more fair, reasonable and equitable legal regime controlling the conduct of MSR activities: a) Given its geographical contiguity to the United States, Mexico’s coastal waters, islands and submarine areas have long proven to be of great interest to U.S. scientists; b) Gradually, Mexico has slowly developed some marine scientific capabilities. c) Many of its scientists

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The transformation of the legal regime applicable to marine scientific research that started under the freedom of oceanic research and ended under the “Consent regime” established by the 1982 U.N. Convention on the Law of the Sea, may lead to a few reflections that may contribute to explain some possible reasons behind this legal transformation. It should be evident by now that developing costal States shared the opinion that the traditional practice by technologically advanced States of conducting marine scientific research in coastal areas off their coasts without having to ask for any permit or authorization was perceived as unfair, and possibly against politesse international. This practice, allowed at that time by international law, brought benefits to the technologically advanced States, and recognized no involvement, no participation and no benefits to the developing coastal State. The relationship between these two types of States at that time was asymmetrical: one State was far scientifically and technologically superior whereas the other was not in a position to obtain any benefits from the research.188 Another difficult question was the persistent doubt or concern shown by developing coastal States that the activities of “marine scientific research” conducted by technologically advanced States offshore their coastlines were legitimate and truly scientific. Developing coastal States occasionally doubted or distrusted some of those marine activities thinking that they may have been, in reality, research designed to finding, evaluating or assessing the developing coastal State’s natural resources, both living and mineral,189 or even for the conduct of military intelligence gathering activities.190

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are trained in U.S. academic institutions; d) In the 1970’s, the establishment of Mexico’s National Council of Science and Technology (Conacyt) was able to politically and financially give impetus to the marine scientific sector, with the support of a group of leading scientists; and, e) Mexico’s coasts and oceanic basins, and the resources and phenomena found in the Pacific, the Gulf of Mexico, the Gulf of California and the Caribbean have traditionally been a magnet for marine (and other kind of) scientists from all over the world. No doubt the fact that most of these developed States subjugated and made “Colonies” of numerous peoples in Africa, Asia and Latin America, may explain why many of these States continued to treat these young developing countries as if they were still under the control of those major powers. Today, Article 246, para. 5, of the 1982 U.N. Convention on the Law of the Sea prescribes for the Exclusive economic zone or the continental shelf that the coastal State may withhold their consent to the conduct of a marine scientific research project, if that project (inter alia): (a) is of direct significance for the exploration and exploitation of natural resources, whether living or non-living; or (d) contains information . . . regarding the nature and objectives of the project which is inaccurate or if the researching State . . . has outstanding obligations to the coastal State from a prior research project.” Article 240 includes, among the “General Principles for the conduct of Marine Scientific Research:” paragraph (a) which reads: “Marine scientific research shall be conducted exclusively for peaceful purposes.”

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In sum, the legal regime formulated in Part XIII of the 1982 Convention may be the result of perceptions of unfairness, and possibly distrust felt by developing coastal States in the traditional practice displayed by major developed States towards developing coastal States. The legal regime of marine scientific research should be considered as closely intertwined with Part XIV of the 1982 U.N. Convention on the Law of the Sea, relative to the Development and Transfer of Marine Technology. In general, developing States, both coastal and landlocked, are in dire need of acquiring all kinds of technologies, including those relative to the marine environment. Marine scientific research activities may be an adequate avenue for technologically advanced States to transfer some marine technologies to developing coastal States. The differential between the number of marine scientists, marine scientific institutions and laboratories, and scientific research and oceanographic vessels between technologically advanced States and developing coastal States, continues to be contrasting. From the perspective of developing countries, it is imperative to close the gap between these two kinds of States. It may be interesting to point out that most of the coastlines in this planet (and the potential vast natural resources therein) are under the sovereignty of developing States. A. Marine Scientific Research in the Federal Oceans Act of 1986 Mexico’s Federal Ocean Act (Ley Federal del Mar) is the very first statute specifically devoted to law of the sea questions. Enacted in 1986,191 the language of this federal Act was clearly inspired by the 1982 U.N. Convention on the Law of the Sea, particular Part XIII. It is well known that considerable natural resources (both mineral and living) are found in Mexico’s marine zones, in particular rich deposits of hydrocarbons and natural gas in the submarine continental shelf in the Gulf of Mexico.192 191

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Ley Federal del Mar (hereinafter FOA) was published by President Miguel de la Madrid in the Diario Oficial de la Federación of January 6, 1986 (with Corrigenda in the D.O. on January 9, 1986). This federal statute entered into force the day of its publication and repealed the “Reglamentary Act of the Exclusive economic zone” published in the D.O. of February 13, 1976. FOA repeals “all other legal provisions in force opposing it.” Any legal matters not addressed by the FOA “regarding activities taking place in the marine zones of national jurisdiction, shall be governed by the national legislation in force” when not contrary to FOA’s provisions. Infractions against the FOA shall be sanctioned by the competent [Mexican] authorities pursuant to the pertinent legislation.” For a general discussion of the FOA, see Chapter Two in this book: Mexican Marine Zones. Their Legal Regime under the Federal Oceans Act of 1986. According to Hedberg, P.R. Gardiner and K.W. Robinson, and the Deep Sea Drilling Project (JOIDES), from a geological viewpoint, “the whole Gulf of Mexico may be considered prospective petroleum territory.” See H.D. Hedberg. Ocean Floor Boundaries, 4389 Science, April 13,

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Therefore, the conduct of marine scientific research activities by foreign vessels tends to be an important and delicate question given the possible relationship that may arise or be established between said foreign activities and Mexico’s natural resources. The FOA is comprised of sixty-five substantive Articles (and four Transitory Provisions) divided into the following two major Titles: Title I. General Provisions (with four chapters);193 and Title II. Mexican Marine Zones (with five chapters).194 However, FOA is a general statute and only Article 22 refers to marine scientific research by simply enumerating the seven principles that govern the conduct of these activities in the Mexican marine zones. Therefore, it should be noted that this statute – unlike the practice of other coastal States195 – does not include any provisions regarding the information, requirements, conditions, etc. established by Mexico to grant its consent to foreign vessels to conduct marine scientific research activities in any of the marine zones under that country’s sovereignty or jurisdiction. Ordinarily, under Mexican law, this kind of information may also be found in the corresponding “Regulations” (Reglamento) of the federal statute in question. However, notwithstanding that the FOA was published since early 1986, up to this date it seems that Mexico has considered unnecessary to publish said Regulations. As a party to the 1982 U.N. Convention on the Law of the Sea, it is in the best interest of Mexico – both diplomatically and legally – to publish as soon as possible the required Reglamento to FOA that should explicitly detail the legal and administrative regime governing the conduct of marine scientific research in the marine zones under its sovereignty or jurisdiction. However, since FOA did not include a specific section to regulate the conduct of marine scientific research, Article 238 through 265 of the 1982 Convention acquires special legal significance. As of today, with respect to marine scientific research activities, Mexico prefers to receive the corresponding requests from foreign countries via a diplomatic note (Note Verbale) addressed to the Secretariat of Foreign Affairs (SRE).

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1979 at 42–51. See also J.A. Ceballos Soberanis. Las Exploraciones Petroleras en el Golfo de México (Oil Explorations in the Gulf of Mexico), Espacios Marítimos y su Delimitación (Maritime Spaces and Their Delimitation). Secretariat of Energy, México (1999) at 245–271. Title I is formed by these four chapters: 1) FOA’s Scope of Application; 2) Marine Installations; 3) Marine Resources and Economic Utilization of the Sea; and 4) Protection and Preservation of the Environment and Marine Scientific Research. Title II comprises these five chapters: 1) Territorial Sea; 2) Internal Marine Waters; 3) Contiguous Zone; 4) Exclusive economic zone; and 5) Continental Shelf or Insular Shelves. See, for example, the legislation regulating the conduct of foreign scientific research vessels enacted by Argentina, Chile, Colombia, Ecuador, Venezuela, Spain, Italy, Maldives, Trinidad and Tobago, the United Kingdom, etc.

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This Secretariat provides each petitioner with a questionnaire in Spanish196 to be duly filled out by the interested foreign country and requiring additional information and documentation. In its initial Articles, the FOA prescribes that it directly derives and regulates the Fourth, Fifth, Sixth and Eighth paragraphs of Article 27 of the Political Constitution, as they pertain to the Mexican marine zones. Therefore, from a domestic legal viewpoint, FOA is the “Reglamentary Act” regarding “the direct ownership (Dominio directo) of the Nation over the submarine continental shelf (as well as those of islands), including the utilization and exploitation of minerals and their deposits; oil, and all solid, liquid or gaseous hydrocarbons” (Fourth para.); the waters of the territorial seas out to a distance of 12 nautical miles (Fifth para.). With the understanding that the Nation’s ownership rights are inalienable and cannot be lost by the statute of limitations (Inalienables e imprescriptibles), and that “the exploitation, use and utilization of said resources, whether by individuals or by companies established under Mexican law, may be granted through permits (Concesiones) by the Federal Executive pursuant to the rules and conditions established by the pertinent laws.” (Sixth para.) Finally, the Eighth Paragraph of Article 27 of the Constitution established an exclusive economic zone of 200 nautical miles.197 The FOA prescribes that for the conduct of any activities “by foreign States and their nationals” in any of the Mexican marine zones, said States and nationals “shall comply with each of Mexico’s domestic laws and regulations in force, with the corresponding rights and obligations.”198 In other words, when a foreign vessel or foreign nationals enter into any of Mexico’s legislatively established “marine zones,” both the vessel and the nationals are presumed to be familiar with the applicable Mexican legislation governing those zones, so they can fully enjoy the rights granted by said legislation and, at the same time, be 196

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Formato de Solicitud para la Expedición de Permiso para Realizar Investigación Científica Marina por Extranjeros en Territorio Mexicano (Application Format for the Issuance of Permit to Conduct Marine Scientific Research by Foreigners in Mexican Territory). This Application contains 48 specific questions to be filled out by the individual applicant and six additional questions (Nos. 49–54) to be answered “exclusively” by the foreign Embassy. A special “Instructive” informing how to fill out the Application Format is provided, as well as a list of “Additional Information and Documentation” that should be accompanied (in the Spanish language) with the Application Format, such as two Passport photographs of the principal researcher, curricula, etc. Additional information shall be necessary should the research project include ships, aircraft and/or vehicles. All documents must be submitted in Spanish (or in English with the respective translation). Some of the requisites may vary depending upon the nature of the scientific project. A complete copy of this Application appears in the Appendix at the end of this chapter. For a discussion of Article 27 of the Political Constitution, see Chapter One in this book: Mexico and Its Territory. Constitutional Principles and Foundations. Art. 5, FOA.

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ready to comply with the corresponding obligations. A well-recognized legal principle found in Mexico’s Federal Civil Code prescribes that “The ignorance of the law is no excuse for noncompliance.”199 Any kind of sovereignty rights, jurisdictions or the projection of specific “competences” (Competencias) for specific purposes” for immigration, tax, sanitary or security reasons, within each of the specific Mexican zones is exercised in conformity with the FOA, the Political Constitution, international law and the applicable national legislation, as appropriate.200 These preliminary provisions close this section by asserting that “the application of the FOA corresponds to the Federal Executive Power through its different Secretariats, departments and agencies pursuant to their respective functions”201 as prescribed in the Organic Act of the Federal Public Administration,202 and any other applicable provisions, as enforced by the “competent national authorities by the powers vested in each of them.”203 B. Foreign Marine Scientific Research in Each of Mexico’s Marine Zones Pursuant to Article 3 of the FOA, Mexico has established the following six “Mexican marine zones:” a) Internal Marine Waters; b) Territorial Sea; c) Contiguous Zone; d) Exclusive Economic Zone; and e) Continental Shelf and Insular Continental Shelves.204 The marine scientific research legally permitted under the FOA, the Political Constitution, other applicable domestic legislation, and international law, in each of these marine zones, is as follows: 1. MSR in the Internal Waters 205 The FOA explicitly prescribes that Mexico exercises its sovereignty over the internal marine waters, which are those “located between the national coasts, both continental and insular, and the Mexican territorial sea.”206 Said sovereignty extends to “the air space over said internal marine waters” and also over “their seabed and subsoil.”207 Under Mexican law, internal waters include: 199 200 201 202 203 204

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See Article 21, Mexico’s Federal Civil Code. Art. 6, FOA. Art. 7, FOA. Ley Orgánica de la Administración Pública Federal (FEPA), supra note 89, passim. Art. 10, FOA. Article 3, para. e) of the FOA reads: “Any other [marine zone] permitted by international law.” After FOA’s was enacted in 1986, the Secretariat of Foreign Affairs (SRE) formulated some “Guidelines” (Lineamientos) regarding marine scientific research by foreigners. The commentary of the legal regime applicable in each of Mexico’s marine zones is based, in part, on these Guidelines. Art. 34, FOA. Art. 35, FOA.

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i) the northern portion of the Gulf of California; ii) the inland bays; iii) ports; iv) inland reefs; and, v) waters of the mouths or deltas or rivers, lagoons and estuaries connected permanently or intermittently with the sea.208 This legal definition of internal waters conforms with the language of the 1982 U.N. Convention on the Law of the Sea,209 and the practice of states on this matter. In other words, the sovereign rights of Mexico over its internal marine waters are exclusive and most comprehensive, as if these waters were part of its land territory.210 Accordingly, Mexico’s sovereign rights in its internal waters do not even include the right of innocent passage,211 present only in the territorial sea. In the exercise of its sovereignty, Mexico has the exclusive right to regulate, authorize and conduct marine scientific research activities within its own internal marine waters. As a consequence, marine scientific research activities by foreign States in said internal waters are to be conducted only with the express consent and under the conditions established by Mexico. Furthermore, since the 1982 U.N. Convention on the Law of the Sea does not explicitly include in Part XIII the conduct of marine scientific research by foreign vessels in the coastal State’s internal waters, Mexico reserves its discretional power to impose additional requisites or conditions to marine scientific research projects by foreigners in its internal marine waters,212 when Mexico deems them to be necessary, depending upon the nature and objectives of the foreign scientific research project. Since the 1982 Convention does not specifically regulate the conduct of marine scientific research in the internal waters, and considering that in this marine zone Mexico exercises what may be called “plenary sovereignty,” it may be a valid assumption to think that in the internal marine waters and the territorial sea Mexico may request information, requisites or conditions solely applicable to these zones, in symmetry with general international law. Alternatively, it may consider a special list of reasonable requirements applicable to foreign marine scientific research (MSR) to take place in its Internal Marine Waters or in its Territorial Sea.

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Regarding Art. 36, para. v) of the FOA, see Art. 27, para. 6 of the Political Constitution of Mexico. For a discussion of these Internal Marine Waters, see Chapter 2 of this book, notes 138–143 and the corresponding texts. See Art. 8, 1982 U.N. Convention on the Law of the Sea. Louis B. Sohn and John E. Noyes. Cases and Materials on the Law of the Sea (2004) at 357. McDougal and Burke assert that “With respect to all these [internal] waters, the basic claims by coastal authorities is to a discretionary authority to permit or deny access as they may unilaterally decide.” See Myres S. McDougal and W.T. Burke. The Public Order of the Oceans (1965) at 93, 89–173. Save when the application of the straight baseline method encloses as internal waters areas that had not previously been considered as such, as prescribed by Art. 5 of the 1958 Territorial and Contiguous Zone Convention and Art. 8 of the 1982 LOS Convention. See “Guidelines” (Lineamientos) prepared by SRE on marine scientific research activities.

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2. MSR in the Territorial Sea Pursuant to the FOA,213 Mexico exercises full sovereignty over that 12 nautical mile214 marine belt known as the territorial sea. This sovereignty extends also to air space, the seabed and the subsoil of that marginal belt, as recognized by the 1982 Convention on the Law of the Sea. From an international law perspective, the coastal State’s sovereignty over its territorial sea is plenary, similar to that it exercises over its own territorial land base, with the only exception of the so-called right of innocent passage in favor of third States.215 Pursuant to the 1982 LOS Convention, Mexico in its territorial sea, in the exercise of its sovereignty,216 “has the exclusive right to regulate, authorize and conduct marine scientific research in its territorial sea.” Accordingly, said marine research shall be conducted “only with the express consent of and under the conditions set forth” by Mexico. Whereas the 1982 LOS Convention prescribes that in the exclusive economic zone and on the continental shelf the coastal State, “in normal circumstances, [shall] grant its consent for marine scientific research projects by other States or competent international organizations [in the exclusive economic zone and in the continental shelf],” this prescriptive language is absent from Article 245 of said Convention, that specifically regulates marine scientific research in the territorial sea. This may be interpreted in the sense that in the territorial sea the coastal State, in this case Mexico, in normal circumstances, is not expected to grant its consent to any foreign marine scientific research. The “expectation” referred to in Article 248 applies only to the exclusive economic zone and the continental shelf. Because of this, Mexico reserves its discretional power to impose additional requisites or conditions to the conduct of marine scientific research in its territorial sea (and its internal waters) by foreigners, provided they are in symmetry with Article 239 and with international law.

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Arts. 23 and 24, FOA. Art. 25, FOA. The twelve nautical mile width for Mexico’s territorial sea may be traced back to 1969 when para. II of the General Act of National Assets (Ley General de Bienes Nacionales) was amended to enlarge the territorial sea from 9 n.m. to 12 n.m. (22, 224 meters). See Amending Decree of Paras. I and II of Section II of said Act, published in the Diario Oficial of December 26, 1969.This width did not affect the international fishing agreements entered into by Mexico with the United States and other countries, as per D.O. of January 20, 1967. See Sohn and Noyes, supra note 166 at 413–423; McDougal and Burke assert: “The principal claims made by States to authority over the territorial sea are often characterized, in terms as sweeping as those with respect to internal waters, as assertions of “sovereignty” over a part of State territory. The more specific claims include: 1) Claims to control access; 2) to apply authority to vessels; 3) to prescribe policy to events aboard vessels; and 4) to exclusive appropriation of resources,” supra note 166 at 179, 174–304. (Emphasis added). Art. 245, LOS Convention.

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Mexico’s policy underlines the importance that competent Mexican marine scientists, or a Mexican representative (usually from a federal agency) be reserved a place in the vessel in order to directly participate in the foreign project in question, pursuant to Article 249, para. a) of the 1982 Convention. Although this provision applies to the exclusive economic zone and the continental shelf, it is highly likely that Mexico would no doubt apply it also to the two marine zones under its plenary sovereignty, namely: the internal marine waters and the territorial sea. 3. MSR in the Exclusive Economic Zone and the Continental shelf Contrary to the two preceding marine zones, in the exclusive economic zone and in the continental shelf the coastal State does not exercise plenary sovereignty but, instead, only specific sovereign rights, jurisdiction or other rights and duties, as provided for in the 1982 Convention.217 Pursuant to Article 248 of the 1982 Convention, in its “Application Format for the Issuance of Permit for Scientific Research Conducted by Foreigners in Mexican Territory,” this official application is divided into three parts, namely: First, information regarding the Chief Scientist (Questions 1–8); Second: Information regarding the Scientific research Project, divided into three parts: i) General information (Questions 9–22); ii) Collection (Questions 23–27); and, Third: Vehicles (Questions 28–48); and, Third: Regarding the Scientific Research Project (Questions 49–54).218 A number of specific “Annexes” are to be enclosed to this Application Format.219 The United States Embassy has a special office (Scientific Affairs Specialist) to assist U.S. scientists with the handling of this Mexican Format Application.220 217

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See Article 56, para. I, for the Exclusive economic zone; and Arts. 76–85, for the continental shelf, LOS Convention. A copy of this Application Format (with the explanations and commentary by the U.S. Embassy in Mexico City) appears in the Appendix at the end of this chapter. These Annexes consist of: A. Curriculum vitae and 2–Passport-sized photographs of the Chief Scientist and Co-Chief Scientist; B. List of all participants, including name, citizenship, Passport number, institution, and a brief description of activities in the project; C: Letter of support from the head of the [scientific] institution, approving the research; D: Letter of endorsement from the Mexican [scientific] counterpart describing their proposed participation in the research; E: If there is to be any collection of specimens, U.S. scientists must pay a “Collection Fee” (for the “Exploitation of Natural Resources”) required by Mexican [Tax] law. This fee (currently $9,674.00 Mexican pesos, approximately $930.00 U.S. dollars should be paid with an international draft or cashier’s check in Mexican pesos payable to: Tesorería de la Federación). In its explanations and commentaries to the Mexican Application Format, the U.S. Embassy has noted that: a) The Government of Mexico expects the [U.S.] applicant to pay all travel expenses for at least one Mexican government participant; b) Due to [Mexico’s] currency fluctuations, the “Collection Fee” may change every six months; and, c) Scientists working

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When one compares the list of the six information items specifically listed by Article 247 of the 1982 Convention, plus the seven specific duties listed in Article 249 of same Convention, established for the conduct of marine scientific research projects by foreigners in the exclusive economic zone and the continental shelf, with the request for information and documentation demanded by Mexico, the Mexican requests appear to be quite detailed and lengthy, making them clearly burdensome. Probably it may be difficult to find any other country that demands as much information as Mexico. However, it should be recalled that the 1982 Convention prescribes: This Article is without prejudice to the conditions established by the laws and regulations of the coastal State for the exercise of its discretion to grant or withhold consent pursuant to Article 246, paragraph 5, including requiring prior agreement for making internationally available the research results of a project of direct significance for the exploration and exploitation of natural resources.221

The Convention prescribes that in this exclusive economic zone the coastal State has the right to regulate, authorize and conduct marine scientific research, in accordance with the relevant provisions of said Convention, and with the consent of the coastal State.222 In the continental shelf, it exercises “sovereign rights for the purpose of exploring it and exploiting its natural resources.”223 These rights are “exclusive” in the sense that if the coastal State does not explore this submarine space or exploit its natural resources, “no one may undertake said activities without the express consent of the coastal State.”224 In addition, the rights of the coastal State over the continental shelf “do not depend on occupation, effective or notional, or on any express proclamation.”225 In its “Guidelines,” Mexico recognized that, in normal circumstances, it may give its authorization for the conduct of marine scientific research by foreigners, provided said research is for peaceful purposes and to increase the knowledge about the marine environment for the benefit of humankind. However, Mexico may validly withhold its consent if the project in question falls within any of the situations described in paragraph 5 of Article 246 of the Convention.226 These

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under institutional agreements or under an agreement with a Mexican scientist certifies by Mexico’s National Researchers System (Sistema Nacional de Investigadores or SNI), will be exempted from paying the “Collection Fee.” Art. 249, para. 2, LOS Convention. Art. 246, paras. 1 and 2, LOS Convention. Art. 77, LOS Convention. Art. 77, para. 2, LOS Convention. Art. 77, para. 3, LOS Convention. Art. 246, para. 5 of the Convention, excludes these situations: a) if the MSR is of direct significance for the exploration and exploitation of resources; b) involves drilling into the continental shelf; c) involves construction, operation or use of artificial islands; and d) contains

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“Guidelines” clearly emphasize Mexico’s policy to reach an explicit understanding (Compromiso) with the foreign researching State “to reserve a sufficient number of places in the research vessel in order for Mexican institutions and companies designated by the Mexican government to directly participate in all the phases of the research project.”227 With respect to the continental shelf, it should be pointed out that, in addition to the provisions of Articles 246–249 of the 1982 Convention relative to the conduct of marine scientific research in the exclusive economic zone and on the continental shelf, and the duty to provide information to the coastal State and to comply with conditions established by the coastal State, in its “Guidelines,” Mexico adds a very specific exception to para. 5, sub-para. a) of Article 246 of said Convention. Pursuant to what is prescribed by para. 6 of same article this paragraph reads: Article 246. 1. Coastal States, in the exercise of their jurisdiction, have the right to regulate, authorize and conduct marine scientific research in their exclusive economic zone and on the continental shelf in accordance with the relevant provisions of this Convention. .......... 5. Coastal States may however in their discretion withhold their consent to the conduct of a marine scientific research project of another State or competent international organization in the exclusive economic zone or on the continental shelf of the coastal State if that project: (a) is of direct significance for the exploration and exploitation of natural resources, whether living or non-living; ..........

In said “Guidelines,” Mexico points out that “paragraph (a) does not apply to the continental shelf [of the land base] or the continental shelf of islands beyond 200 nautical miles, measured from the baseline used to measure the territorial sea, save for those specific areas that the government of Mexico designates in a public manner at any time as areas where exploitation or detailed exploratory activities are [currently] taking place.” As a party to the 1982 LOS Convention, Mexico is to comply with the provisions of Article 252, regarding “Implied Consent,” and Article 253, relative to the suspension or cessation of marine scientific research activities.

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“inaccurate” information regarding the nature and objectives of the MSR project and if there are outstanding obligations by the researching State. SRE “Guidelines,” supra note 120.

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a. A Dual Legal Regime for Foreign MSR Based on the preceding discussion regarding internal marine waters and the territorial sea, and strictly from an academic viewpoint, it may seem that Mexico has adopted two different legal regimes for the conduct of marine scientific research by foreigners applicable to two different marine zones under Mexican law. The first legal regime – characterized as a “sovereign consent regime”– derives from the legal circumstance that in the internal waters and in the territorial sea Mexico exercises plenary sovereignty over those two zones. The second legal regime applies to those marine zones where Mexico does not have plenary sovereignty but only so-called “sovereign rights, jurisdiction or other rights,” as defined by the 1982 LOS Convention. This may be called a “conventional consent regime.” i. Sovereign Consent Regime The “sovereign consent regime” is firmly established upon the notion of sovereignty. A plenary sovereignty that controls all activities in said zones, whether affecting activities by Mexican nationals or foreigners, or relating to any natural resources (both living and non-living) in the water column, the superjacent air space, the seabed and subsoil in both Mexico’s internal waters and in its territorial sea. Any authorization to foreigners to conduct marine scientific research activities in these two marine zones should be interpreted as a sovereign act of Mexico, both as a party to the 1982 LOS Convention and as a member of the international community of nations. Mexico’s decision to grant or withhold the authorization or permit for the conduct of marine scientific research activities is at the sole and unilateral discretion of Mexico. ii. Conventional Consent Regime In contrast, the “conventional consent regime” derives directly from the 1982 LOS Convention and it applies only to the exclusive economic zone and to the two kinds of submarine continental shelf (i.e., extending out as a geomorphological prolongation from the continent or around islands). Legally, this is the regime enunciated in Articles 246–255 of said Convention. In these two marine spaces, the coastal State does not have plenary sovereignty but only exercises sovereign rights for the purpose of exploring and exploiting, conserving and managing, the natural resources, whether living or non-living; jurisdiction as provided for in the 1982 Convention with regard to, for example, marine scientific research, the establishment and use of artificial islands and the protection and preservation of the marine environment; and, finally, other rights and duties as provided for in the Convention. Basically, this is the conventional international law regime established by the 1982 Convention to which Mexico is legally bound, as a party to it.

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4. MSR Principles and Mexican Participation The FOA enunciated seven general “Principles” governing the conduct of marine scientific research applicable to both national and foreign projects.228 In general, most of Mexico’s principles closely follow those enunciated by Article 240 and 241 of the 1982 Convention.229 FOA’s Principle VI reiterates Mexico’s policy that marine scientific foreign projects are to ensure “national participation to the largest extent possible,”230 in relation with para. (a) of Article 249 of the Convention. And FOA’s Principle VII confirms Mexico’s right to request “the assistance necessary for the interpretation and assessment” of the final results, in relation with para. (b) of Article 249 of same Convention.231 C. Conduct of MSR under the 1982 U.N. Convention on the Law of the Sea and International Law As a party to the 1982 Convention, and in full adherence to the international law principle of Pacta sunt servanda as a central part of Mexico’s foreign policy, the general impression is that this country has been in full compliance with said Convention, including its Articles pertaining to the granting consent in normal circumstances for MSR activities in the exclusive economic zone and the continental shelf; implied consent; suspension or cessation of MSR activities; and settlement of MSR disputes.232 However, when one considers the discretion given by international law to the contracting parties to interpret the language of the 1982 Convention, as well as the relative time-sensitive nature of certain if not all marine scientific research projects, it may not be unexpected to encounter some differences between the coastal State and the researching State regarding some of these Articles. Given the numerous and varied opinions advanced by delegates at the Third Committee of UNCLOS III on a variety of questions regarding marine scientific research activities, it may not be surprising that, for example, the phrase “Coastal States, in normal circumstances, grant their consent for marine scientific research projects by other States . . . in their exclusive economic zone or on their continental shelf . . .”233 may lead to discrepancies in interpreting the expression

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Art. 22, FOA. FOA’s Article 22, Principles I-IV, reproduce verbatim the language of the first four paragraphs of Article 240 of the 1982 Convention; Principle V reproduces the language of Article 241 of same Convention. Regarding Mexico’s policy in favoring the participation of Mexican nationals in the foreign project, see supra note 179 and the corresponding text, as established in the “Guidelines.” FOA’s Art. 22, Principles VI and VII. Articles 252, 246, 253, and 264, U.N. Convention on the Law of the Sea. Art. 246, para. 3, LOS Convention. See also Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea: The 1972 New York Session,” 72 AJIL (1978) at 57–83.

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“in normal circumstances.” Another example may be the definition of what may be validly considered to be a marine scientific research project conducted “exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind.”234 An additional discrepancy between States may arise with respect to the determination as to whether a marine scientific research project may or may not “unjustifiably interfere with activities undertaken by coastal States in the exercise of their sovereign rights and jurisdiction,” as provided by the 1982 Convention.235 Finally, the third paragraph of Article 246 of the Convention prescribes that “[C]oastal States shall establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably.”236 The application of Article 252 of the Convention, relative to “Implied consent,” may also be a delicate matter for both the researching and the coastal State. This Article was formulated at the instance of technologically advanced countries to avoid the cancellation of a given marine scientific research project already submitted to the coastal State due to a long a delay by this State in granting its consent. If after six months of the date when the researching State provided the information requested by the coastal State pursuant to Article 248 of the Convention, said researching State “may proceed” to conduct the proposed marine scientific research project “unless within four months of the receipt of the communication containing such information, the coastal State has informed the State” of some specific reasons stipulated by the Convention for not allowing the initiation of the project.237 In principle, as a gesture of good faith, it would seem reasonable that as soon as the coastal State has proof that the foreign researching State that is requesting authorization to conduct a new marine scientific research project has outstanding obligations, the coastal State should immediately notify the interested researching State without having to wait until the end of the four-month period prescribed by the Convention.

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Art. 246, para. 3, in fine, LOS Convention. See also Alonso Gomez Robledo Verduzco, “Investigación Científica Marina” (Marine Scientific Research), Derecho del Mar (Law of the Sea) (1997) at 64–67. Art. 246, para. 8, LOS Convention. Art. 246, para. 3, in fine, LOS Convention. According to Article 252 of the LOS Convention, such reasons include: (a) the withholding of the consent under the provisions of Article 246; (b) the information given by that State . . . regarding the nature and objectives of the project does not conform to the manifestly evident facts (sic); (c) it requires supplementary information relevant to the conditions and the information provided for under Articles 248 and 249; or (d) the existence of outstanding obligations with respect to a previous marine scientific research project carried out by that States . . ., with regard to conditions established in Article 249.

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Probably the suspension or cessation of marine scientific research activities in progress in the exclusive economic zone or on its continental shelf are among the most serious cases contemplated by the 1982 Convention. No information has been disclosed either by Mexico or by the United States regarding these situations. Presumably, no suspension or cessation of this type has ever taken place in Mexico’s marine zones. Regarding maritime installations, the FOA prescribes that Mexico has the exclusive right to construct and authorize the construction, operation or utilization of artificial islands, installations and structures in any of its marine zones, in accordance with the FOA and other applicable Mexican legislation.238 The FOA specifies that the “installation, conservation, maintenance, reparation and demolition of immovable assets (Bienes inmuebles) for purposes of exploration, localization, drilling, extraction and development of marine resources, or for public service or common use in Mexico’s marine zones shall be done while observing the legal provisions in force on these matters.239 D. MSR Relations between Mexico and the United States During the last four decades, the relations between Mexico and the United States regarding the conduct of marine scientific research by U.S. vessels in waters under Mexico’s national jurisdiction have been sailing smoothly and improving in a gradual but steady manner. The most recent data (2010) collected by the U.S. Department of State (Bureau of Oceans and International Environmental and Scientific Affairs) shows that over these four decades Mexico has a perfect record, having authorized 100% of the requests for marine scientific research submitted by the U.S. Embassy in Mexico City to the Secretariat of Foreign Affairs (SRE). From Mexico’s perspective, these harmonious relations on marine scientific research with the United States stem from the respect and uniform interpretation given by these neighboring countries to the 1982 U.N. Convention on the Law of the Sea, despite their different legal standing with respect to said convention: whereas Mexico is a formal party to the Convention,240 the United 238

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Art. 16, FOA. Other applicable Mexican legislation includes the General Act of National Assets (Ley General de Bienes Nacionales); the Public Works Act (Ley de Obras Públicas), and other applicable provisions in force. Art. 17, FOA. Some additional domestic legislation may involve the Petróleos Mexicanos (PEMEX) Act, the Environmental Act and its regulations, the Natural Gas and Oil Act, the Telecommunications Act, the Fishing and Aquaculture Act, and the applicable provisions of the Federal Civil Code and the Federal Criminal Code on matters of criminal, civil, objective or extra-contractual liability, etc. Mexico signed the 1982 U.N. Convention on the Law of the Sea on December 10, 1982 at Kingston, Jamaica. The Mexican Senate gave its approval on December 29, 1982, as published in the Diario Oficial de la Federación on February 18, 1983; the ratification was given

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States is not (January 2010). However, the State practice of both countries suggest that on marine scientific research both countries are on the same page. As a party to the 1982 Convention, Mexico is legally bound by the provisions of this multilateral treaty, in particular those in Part XIII relative to marine scientific research. It should also be recalled that during the negotiations of said Convention Mexico played an active role in the drafting of articles on this important question.241 Additionally, numerous provisions of the LOS Convention have been reproduced throughout the language of Mexico’s Federal Oceans Act of 1986.242 This federal statute establishes the legal regime that country applies to its “Marine zones,” including seven “principles” that govern the conduct of marine scientific research in said zones.243 Given the importance Mexico attributes to international law and to marine scientific research, it is disappointing that this country has not yet enacted the necessary “Regulations” that would detail and complement the Federal Oceans Act (published in the Diario Oficial since 1986), especially when this statute merely devotes a single provision (Article 22) to enunciate the “principles” that regulate the conduct marine scientific research by foreign vessels in that country. In this regard, Article 255 of the 1982 Convention contains an exhortation to the parties of the Convention in the area of marine scientific research “to adopt reasonable rules, regulations and procedures to promote and facilitate marine scientific research” conducted in accordance with the 1982 Convention.244

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by Mexico on March 18, 1983. The 1982 Convention entered into force at the international level on November 16, 1994, and on the same date at Mexico’s national level. The promulgation was published in the Diario Oficial on June 1, 1983. Amb. Jorge Castañeda, as Head of the Mexican Delegation, Head of the so-called “Castañeda Group,” and a member of the Informal Group of Juridical Experts, played a constructive role to give legal substance to a number of Articles, inter alia, on the exclusive economic zone and marine scientific research; see, for example, the discussions on the Third Committee on MSR in M.H. Nordquist, UNCLOS 1982: A Commentary, Vol. iv, supra note 28 at 509 et seq. See also Renata Platzöder, Vol. IX, 377 et seq. See chapter 2 in this book for a detailed discussion of the Federal Oceans Act (FOA). On the topic of marine scientific research (MSR), Article 22 of the Federal Oceans Act of 1986 simply enumerates seven principles that govern the conduct of MSR in the “Mexican marine zones.” In general, the first four principles reproduce those enunciated by Article 240 of the 1982 Convention. The principles added by Mexico are: 5) MSR shall not give basis for any legal claim over any portion of the marine environment; 6) In the conduct of MSR authorized to foreigners, “the highest degree of [Mexican] participation shall be assured;” and 7) The results of foreign MSR are to be provided to Mexico including the interpretation and evaluation of said results, when requested by Mexico. Article 255 prescribes: “States shall endeavor to adopt reasonable rules, regulations and procedures to promote and facilitate marine scientific research conducted in accordance with this Convention beyond the territorial sea and, as appropriate, to facilitate, subject to the provisions of their laws and regulations, access to their harbors and promote assistance for marine scientific research vessels which comply with the relevant provisions of this Part.” (Emphasis

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Under Mexican law, the Federal Executive is empowered to promulgate and enforce the laws enacted by the Congress of the Union, “providing for their exact observance at the administrative level.”245 This is done through the enactment of the corresponding “Reglamento” (Regulations) that explain, expand and detail the letter of the federal statute in question, i.e., the FOA. In this case, the Federal Executive was expected to promulgate the corresponding “Regulations” to the Federal Oceans Act within a reasonable period of time (usually within two to three years depending on the importance of the enactment). Regarding the FOA, twenty-four years have passed and the Executive has published no regulations on any law of the sea matters, including marine scientific research. E. The United States of America and MSR As a global maritime power with the largest oceanographic and hydrographic fleets246 and the most powerful and modern Navy, the United States played a decisive role in the formulation and drafting of the 1982 U.N. Convention on the Law of the Sea, including Part XIII relative to the conduct of marine scientific research. After enjoying for centuries the benefits of the freedom of oceanic research recognized by customary international law, the United States – jointly with other advanced nations–worked at UNCLOS III for the formulation of a more liberal and expeditious regime governing marine scientific research. However, this expectation did not materialize. The legal regime that was finally included

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added). Since Mexico, like the United States, has adopted some “reasonable rules” and “procedures” for foreign vessels to conduct MSR, Mexico may consider that the enactment of specific “Marine Scientific Regulations” to supplement the FOA may be unnecessary. In a recent survey (2010) conducted by UNESCO’s Intergovernmental Oceanographic Commission (IOC) to find out how many coastal States “have legislation in force to implement the UNCLOS provisions related to MSR,” out of a total of 31 States only 19 answered affirmatively (61%); 12 States answered in the negative (39%) and 13 States (50%) provided some information on national legislation. See Report on the Data Compilation and Analysis of IOC Questionnaire Number 3, supra note 4 at 24. However, in conformance with Mexican law and international law, the enactment of said regulations (whether to detail the provisions of the Federal Oceans Act (FOA) or as a separate set of rules and procedures) would be beneficial both to foreign marine scientists and to Mexico’s reputations as a country who acts in accordance with international law (including the 1982 Convention). Article 89, para. I, Mexico’s Political Constitution. Given its advanced degree of scientific and technological developments, the United States also possesses sophisticated computers, remotely controlled devices and an array of civil and military satellites utilized in the conduct of marine scientific research, hydrographic work and strategic and military uses. In the last decades, all of these devices have revolutionized many of the uses of the oceans, including the conduct of marine scientific research.

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in Part XIII of the LOS Convention is centered on the consent of the coastal State. From the viewpoint of most developing coastal States, the consent regime became the central piece for the undertaking of marine scientific research in the three most important spaces under the control of the State, namely: the territorial sea (Art. 245); the exclusive economic zone (Art. 246); and the continental shelf (Art. 246). For these countries, this consent regime was the indispensable component that not only guaranteed the protection of the coastal State’s sovereign rights for the purpose of exploring, exploiting, conserving and managing marine natural resources (both living and non-living) but also the protection of the national security interests of coastal State.247 It should be recalled that the 150 participating delegations at UNCLOS III reached the consensus that the LOS Convention was to be accepted in its entirety as a “Package deal,” thus eliminating any possible discussion to do away with the consent regime on marine scientific research as a key component of the Convention.248 In this regard, Koh, President of the conference, put it succinctly: “The Convention contains new rules . . . that strike an equitable balance between the interests of the researching States and the interests of the coastal States.”249 The newly created economic zone of 200 nautical miles established by the LOS Convention was to result in a dramatic change: “[N]early one third of the world’s ocean space . . . where the greater part of marine scientific research

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In a “Commentary” to the 1982 LOS Convention and the Agreement of 1994 relative to Part XI, J. Ashley Roach and Robert W. Smith wrote with respect to marine scientific research, inter alia: “Part XIII confirms the rights of coastal States to require consent for marine scientific research undertaken in marine areas under their jurisdiction. These rights are balanced by specific criteria to ensure that the consent authority is exercised in predictable and reasonable fashion so as to promote maximum access for research activities . . . The United States is a leader in the conduct of marine scientific research and has consistently promoted maximum freedom for such research.” See Roach and Smith. United States Responses to Excessive Maritime Claims. Martinus Nijhoff Publishers (1996), 2nd ed. at 537. In the remarks by Tommy T.B. Koh, President of UNCLOS III, at the final session of the conference, regarding the “Package deal” agreement, he said: “. . . the Convention does not fully satisfy the interests and objectives of any State . . . It has successfully accommodated the competing interests of all nations . . . It is not possible for any State to pick what it likes and to disregard what is does not like . . . Rights and obligations go hand in hand and it is not permissible to claim rights under the Convention without being willing to shoulder the corresponding obligations.” See also the “Introduction” to the Convention by Bernardo Zuleta, Under-Secretary General and Special Representative of the UN Secretary General for the Law of the Sea. Both statements appear at The Law of the Sea, U.N. Convention on the Law of the Sea, Index and Final Act. New York (1983) at xxxiv and xix, respectively. Ibid., “A Constitution for the Oceans”at xxxiii.

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is conducted, as many ocean phenomena occur along the edge of continents”250 was now to be under the exclusive jurisdiction of the coastal State, thus subtracting it from the high seas. The placement of such an immense ocean space now under the control of an equally large number of individual coastal States – the majority of which were developing countries – produced concern within the marine scientific communities of advanced researching States, including those of the United States. As a major military, maritime and marine scientific research power actively engaged in the world’s oceans, and in the promotion of unimpeded marine scientific research, the United States acted promptly and adopted a series of timely, important and well-coordinated policies to accomplish two major objectives: first, to take advantage of the new marine spaces and ocean rights included in the 1982 Convention, i.e., inter alia, the 200-nautical mile exclusive economic zone and the right of passage through and over international straits; and second, to benefit from those customary international law principles of the law of the sea codified in the new Convention, including the freedoms of navigation, fishing and overflight. To accomplish these objectives, the United States proceeded immediately to advance these ocean policies: First, on March 10, 1983, President Ronald Reagan made a “proclamation” establishing an exclusive economic zone of 200 nautical miles.251 This proclamation detailed the sovereign rights and jurisdiction of the United States in its exclusive economic zone. The proclamation read in part: Within the Exclusive Economic Zone, the United States has, to the extent permitted by international law, (a) sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, both living and non-living, of the seabed and subsoil and the superjacent waters and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; and (b) jurisdiction with regard to the establishment and use of artificial islands, and installations and structures having economic purposes, and the protection and preservation of the marine environment. .....

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See Sam Bateman. Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research, Marine Policy 29 (2005) at 163–174. See also M. Nordquist and R. Krueger. The Evolution of the 200 Mile Exclusive Economic Zone: State Practice in the Pacific Basin, 19 Va. J. Int’l L. 321. According to these authors, “90%of the world’s catch and 87% of its known submarine petroleum deposits are within the limits of the ‘universal’ 200-mile Exclusive economic zone, which would enclose 36% of the world’s ocean space,” at 321. President Reagan’s Proclamation on the “Exclusive Economic Zone of the United States of America,” No. 5030 of March 10, 1983 at 48 FR 10605, 3 CFR, 1983 Comp., p. 22. See also George A. B. Pierce. “Selective Adoption of the New Law of the Sea: The United States Proclaims its Exclusive Economic Zone,” 23 Va. J. Int’l L. at 581–601.

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Without prejudice to the sovereign rights and jurisdiction of the United States, the Exclusive Economic Zone remains an area beyond the territory and the territorial sea of the United States, in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines and other international lawful uses of the sea.252

In a White House Fact Sheet that preceded the proclamation, it was asserted that “the EEZ is clearly recognized in international law and the President’s Proclamation is consistent with existing international law. Over fifty countries have proclaimed some form of EEZ; some of these are consistent with international law and others are not.”253 According to Robert W. Smith, the EEZ of the United States resulted in the largest zone of this kind in the world, [W]ith an area of approximately 2,222,000 square nautical miles off the coasts of the fifty states and 885,000 square nautical miles off the coasts of the possessions and commonwealth” and extending into these “six different water bodies: the Atlantic, the Gulf of Mexico, the Caribbean Sea, the Pacific Ocean, the Bering Sea, and the Chukchi Sea (Arctic Ocean).254

Second, on the same day President Reagan made a statement on the “United States Oceans Policy.”255 Regarding marine scientific research, the President said: 252

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Presidential Documents. Proclamation 5030 of March 10, 1983. Exclusive Economic Zone of the United States of America, Id. at 10605–10606. The Proclamation added that: “The United States will exercise these sovereign rights and jurisdiction in accordance with the rules of international law.” The description of the U.S. EEZ follows closely the tenor of Arts. 55–58 of the 1982 LOS Convention. United States: Proclamation on an Exclusive Economic Zone. Fact Sheet. “United States Ocean Policy,” The White House, Office of the Press Secretary. March 10, 1983. 22 I.L.M. 461 (1983) at 461–465. The Fact Sheet added that: “The President’s Proclamation confirms that . . . all nations will continue to enjoy non-resource related freedoms of the high seas beyond the U.S. territorial sea and within the U.S. EEZ. This means that the freedom of navigation and overflight and other international lawful uses of the sea will remain the same within the zone as they are beyond it” and that: “Unimpeded commercial and military navigation and overflight are critical to the national interest of the United States. The United States will continue to act to ensure the retention of the necessary rights and freedoms.” Id. at 462. See also Pierce, supra note 8at 591–595. Robert W. Smith. The Maritime Boundaries of the United States, Geographical Review, Vol. 71, No. 4 (Oct. 1981) at 395, 395–410. For the establishment of these boundaries, the United States utilized numerous islands, i.e., American Samoa, Guam, Howland and Baker Islands, Jarvis Island, Midway Island, Northern Marianas, Palmyra Island, Puerto Rico, Virgin islands and Wake Island, with maritime boundaries reaching a total of 9,798 nautical miles. Id. at 398. United States Oceans Policy. Statement by the President, March 10, 1983. “Weekly Compilation of Presidential Documents,” Vol. 19, No. 10 (March 14, 1983) at 383–385. Reproduced at 22 I.L.M. 464 (1983).

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Chapter Five While international law provides for a right of jurisdiction over marine scientific research within such zone, the proclamation does not assert this right. I have elected not to do so because of the United States interest in encouraging marine scientific research and avoiding any unnecessary burdens. The United States will nevertheless recognize the right of other coastal States to exercise jurisdiction over marine scientific research within 200 nautical miles of their coasts, if that jurisdiction is exercised reasonably in a manner consistent with international law.256

From the viewpoint of marine scientific research, this statement acquires special significance because, on the one hand, the United States explicitly elected not to exercise the right to regulate or control marine scientific research within its own exclusive economic zone. As a leading marine scientific research country, the United States reiterated its traditional policy of promoting the conduct of marine scientific research in a most open and flexible manner, without the imposition of any unnecessary burdens or conditions. On the other hand, the United States made clear that it also recognized the right of other coastal States “to exercise jurisdiction” over marine scientific research within their respective exclusive economic zones to be subject to the consent of the coastal State, as prescribed by the 1982 Convention (Art. 56, para. 1, sub-para. (b) (ii)), provided said “jurisdiction is exercised reasonably in a manner consistent with international law.” And finally, it is interesting to point out that President Reagan made no explicit reference to the 1982 LOS Convention. With respect to marine scientific research, instead of referring to this Convention, the Proclamation asserted that “international law [and not the Convention] provides a right of jurisdiction within such [exclusive economic] zone.” It may be validly deduced that the United States was recognizing that the consent regime established by the 1982 Convention had already been incorporated into both conventional international law and customary international law. This final language of the transcribed paragraph of President Reagan’s proclamation allows the United States to have the ability to disagree when a given coastal State exercises said jurisdiction unreasonably and in a manner inconsistent with international law. In other words, the exercise of jurisdiction over marine scientific research by any other coastal State had to be in legal symmetry with the applicable language of the 1982 Convention, in the opinion of the 256

Id. (emphasis added). This U.S. policy was reaffirmed in the “Fact Sheet” distributed by The White House Office of the Press Secretary on March 10, 1983 and in a “Bulletin” issued by the U.S. Department of State (Bureau of Oceans and International Environmental and Scientific Affairs) on the same day. This bulletin added: “The United States has not asserted jurisdiction over marine scientific research off our coasts. Therefore, foreign vessels may operate off the United States coast as before. Permission will be required within three miles [at that time the U.S. had a three nautical mile territorial sea that was later enlarged to 12 n.m.], for continental shelf research, and for certain types of fisheries and marine mammal research.” (emphasis added).

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United States. Ostensibly, the rationale behind this U.S. policy is to avoid the imposition of arbitrary or unreasonable requirements or conditions not included in the 1982 Convention or when contrary to international law.257 And third, on March 11, 1983, the U.S. Department of State (Bureau of Oceans and International Environmental and Scientific Affairs) issued a bulletin to the U.S. marine scientific community informing them about the establishment of a U.S. EEZ by a presidential proclamation, and adding that: The United States has not asserted jurisdiction over marine scientific research off our coasts. Therefore, foreign vessels may operate in the United States coast as before. Permission will be required within three miles,258 for continental shelf research, and for certain types of fisheries and marine mammal research.259

Possibly, the United States is the only country in the world that has elected not to assert jurisdiction over marine scientific research. As a major maritime power and as a leading researching State, this policy is in the best interest of the United States. It should be reiterated, however, that the United States explicitly recognized the exercise of jurisdiction over marine scientific research by any other coastal States when in consonance with the 1982 LOS Convention and international law. F. The United States Identifies Some Data Collection Activities That Are Not Marine Scientific Research The 1982 LOS Convention does not provide a definition of marine scientific research (MSR). For some, this may be a glaring omission; for others, this represents a deliberate practical convenience.260 The fact of the matter is that marine scientific research is but one of several categories of “marine data 257

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Arguably, this U.S. policy would also apply, mutatis mutandis, to the exercise of jurisdiction by the coastal State over the conduct of marine scientific research in the territorial sea and in the continental shelf. At that time (March 1983), the United States had a three nautical mile territorial sea. This width was enlarged in 1986 by President Reagan’s Proclamation No. 5928 on the Territorial Sea of the United States of America at 54 FR, 3 CFR, 1988 Comp. at 547. With respect to the continental shelf, established by President Truman’s Proclamation 2667 of September 28, 1945, its legal regime was not changed. U.S. Department of State, Washington, D.C. Bureau of Oceans and International Environmental and Scientific Affairs. The bulletin was signed by William Erb, Director, Office of Marine Science and Technology Affairs, and was dated on March 11, 1983 (emphasis added). During the preparatory work of Sub-Committee III, in charge of marine scientific research (MSR), a number of delegations became involved in an effort to formulate a definition of MSR. Later on, after realizing the legal and scientific intricacies involved in the drafting of such a definition, the participating delegations decided not to include an MSR definition in the convention.

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collection” (MDC) that may include, for example, (i) marine scientific research (MSR); (ii) surveys; (iii) operational oceanography; and (iv) exploration and exploitation of natural resources or underwater cultural heritage (shipwrecks).261 Although MDCs are directed at obtaining data or other information from the marine environment,262 from the law of the sea viewpoint MDCs may take place at specific marine spaces recognized by the 1982 LOS Convention, such as (a) the territorial sea; (b) the contiguous zone; (c) the exclusive economic zone; (d) the continental shelf; (e) the deep seabed beyond the limits of national jurisdiction (International Seabed Area); (f) straits used for international navigation; and (g) archipelagic sea lanes.263 It is important to note that the only activities regulated by the Convention are MSR activities, but not the other MDC activities. So, it is technologically possible that some MDCs not explicitly permitted under the Convention may take place under the legal umbrella of MSR. Among the most controversial and technically difficult problems is the ability of the coastal State to ascertain, in an objective and definite manner, whether the claim of a given researching State that it is conducting MSR is an accurate one, or whether under the label of MSR the researching State is actually undertaking a given MDC activity in violation of the consent regime established by the 1982 Convention. The extraordinary scientific and technological advancements that have recently taken place, and the fast pace with which they have occurred over the last years (and will continue to take place in the future), tend to blur or obscure the traditional MCD categories vis à vis marine scientific research as regulated by the 1982 Convention. This situation poses an increasingly difficult and delicate problem, especially for the coastal State. It has been suggested, for example, that there are “overlaps between hydrographic surveying and marine scientific research in the exclusive economic zone, including the concept of military surveying.”264 Bateman reports that 261

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This classification of MDC (Marine data collection) was taken from J. Ashley Roach. Defining Scientific Research: Marine Data Collection. Panel VI: Marine Science and Law. “Law, Science and Ocean Management,” 30th Virginia Law of the Sea Conference. Dublin Castle, Ireland, July 14, 2005. Each of the four categories has two or more sub-categories at 1–5. Given today’s scientific and technological advancements, MDC activities may take place, for example, from (a) surface and submarine platforms (such as buoys, vessels and/or ships, including submarines): (b) from instruments and collectors floating, submerged, mobile or stationary in the marine environment; and (c) from platforms in the space and outer space (such as balloons, aircraft and satellites). Id. at 3. Evidently, in each of these spaces the degree of control of the coastal State varies and this is legally reflected in the relative control over MSR activities. Sam Bateman. Hydrographic Surveying in the EEZ: Differences and Overlaps with Marine Scientific Research, Marine Policy 29 (2005) supra note 250 at 163–174. This author concludes that “recent trends in technology, the utility of hydrographic data and State practice suggests that hydrographic surveying in the EEZ should be under the jurisdiction of the coastal State,” at 163 (emphasis added).

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The maritime powers believe that “survey activities” are not MSR and point out that the UNCLOS distinguishes between ‘research” . . . and “hydrographic surveys” and “survey activities” . . . because these are sometimes referred to separately in the Convention,” adding that “the United States believes that hydrographic survey and military survey activities are freedoms that the coastal State cannot regulate outside its territorial sea.265

The legal literature on these and other similar challenging questions relative to the explicit mention of MSR in the EEZ and “hydrographic surveys” in certain marine spaces under the control of the coastal State but not in others, that derives from the language of certain articles of the 1982 Convention,266 for example, is beginning to indicate the lack of uniform interpretation with respect to the legal meaning and scope of certain MDCs vis à vis MSR, as reflected in the practice of different military powers and other coastal States.267 These additional considerations may also suggest the growing complications associated with the undertaking of MDCs and, in particular, of MSR activities, almost three decades since the 1982 Convention was completed. During the discussions of Part XIII, relative to MSR that may be traced back to 1974, many of the scientific and technological advancements in use today, as reflected in the current practice268 of maritime, naval and researching States, simply did not exist at that time.269

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Id. at 165. This authors adds, inter alia, that “Activities such as hydrographic surveys and the collection of information that, whether or not classified, is to be used for military purposes, are not considered by the United States to be marine scientific research, and therefore, not subject to the coastal State jurisdiction,” Id. Bernard B. Oxman. The Regime of Warships under the United Nations Convention on the Law of the Sea, 24 Va. J. Int’l L. 809 (1983–1984), in reference to MSR in the EEZ (Arts. 58, para. 1 and Arts. 243, 246, para. 3, 19, para.2, 149 and 303; and hydrographic surveys, Arts. 264, 243, 246, 19, para. 2 (j), 21, para. 1 (g) and 40. Zhang Haiwen. Agora: Military Activities in the EEZ. Is it Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? – Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ; and George V. Galardosi and Alan G. Kaufman. Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict. 32 Cal. W. Int’l L.J. 253 (2001–2002). See, for example, this statement: “The naval powers emerged from the UNCLOS III negotiations with their national security interests, for the most part, ensured. Although the territorial sea limit . . . has been specifically addressed and expanded to twelve nautical miles, and the concept of archipelagic waters has received recognition, navies will still be able to conduct activities in a regime that remains largely permissive. However, because the principal naval and maritime States have so far chosen to remain outside of the UNCLOS III framework established in the 1982 Convention, many years of tension and discord are likely, during which navies will be major components in the States’ initiatives to safeguard their interests in ocean law and policy,” Scott C. Truver. The Law of the Sea and the Military Use of the Oceans in 2010, 45 La. L. Rev. 1221 (July 1985) at 1243, 1221–1246. See Florian H. Th. Wegelein. Marine Scientific Research. Martinus Nijhoff Publishers (2005) at 37–56, and Chapters 5 and 6. See, for example, Alan V. Lowe. The Commander’s

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And second – and more importantly – no formal agreement has been reached at the international level with respect to the legal definition, categorization and scope of MDC activities vis à vis MSR. Evidently, the absence of an international treaty or convention that would detail, clarify and hopefully resolve the ambiguities derived from the language of the 1982 Convention on MSR and possibly other questions associated with MDCs,270 tends to further complicate this problem. It is not unexpected that the existing legal and technical ambiguities in the 1982 Convention may result in differences that have already caused a few reported incidents.271 Considering that the United States is not a party to the 1982 LOS Convention and that by means of a Presidential proclamation the U.S. established in 1983 an EEZ of 200 nautical miles, followed by a statement of the “United States Oceans Policy” in which this country elected “not to assert jurisdiction over marine scientific research off its coasts,”272 the United States decided to establish an administrative mechanism to guide and assist third States interested in conducting marine scientific research offshore the coasts of the United States, in the different marine spaces under its jurisdiction and control.273 The U.S. Department of State through the Bureau of Oceans and International Environmental and Scientific Affairs (OES) formulates and implements the U.S. policy related to the conduct of marine scientific research (MSR) within the territorial sea (up to 12 nautical miles), the exclusive economic zone (up to 200 nautical miles) and the continental shelf (in some cases extended beyond the 200 nautical miles).274

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Handbook on the Law of Naval Operations and the Contemporary Law of the Sea in 64 International Law Studies: The Law of Naval Operations (Horace B. Robertson ed., 1991). At the current state of affairs, it is even questionable whether such a treaty or international convention may be acceptable with the major maritime powers and other coastal States. See, for example, supra note 23. Both articles refer to an incident that took place in April 2001 between a Chinese fighter jet that was intercepted and then collided with an American patrol aircraft over the Chinese EEZ near Hainan island. The People’s Republic of China and the United States’ views on the law with respect to military activities in the Chinese EEZ differed. See also Alfred Soons. Implementation of the Marine Scientific Research Regime in the South Pacific – Final Report, FFA Report 95/14 and SOPAC Joint Contribution Report 101. Honaira, Forum Fisheries Agency, October 24, 1994. See supra notes 251 and 259, and the accompanying texts. This information is posted on the following web site of the U.S. Department of State: “Marine Scientific Research Authorizations” at http://www.state.gov/g/oes/ocns/opa/rvc/index.htm. This information (and all the indented paragraphs that follow) is taken verbatim from the U.S. Department of State web site, Id., Office of Ocean and Polar Affairs (OPA) (Last visited October 12, 2010). This office is within the Department’s Bureau of Oceans and International Environmental and Scientific Affairs (OES), Under Secretary for Democracy and Global Affairs. (all emphasis that follow have been added by the author).

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The information on the U.S. Department of State web site recognizes that, in accordance with the Law of the Sea Convention, coastal States have the right to regulate and authorize marine scientific research and, in all instances, consent of the coastal State is required. It further recognizes that said Convention prescribes that “appropriate official channels” be used to obtain consent for marine scientific research. The Office of Polar Affairs (OPA) serves as the appropriate official channel for U.S. (Publicly or privately funded) researchers seeking foreign consent as well as for foreign researchers seeking U.S. consent. On an annual basis, OPA manages approximately 400 applications for foreign research and 70 applications for U.S. consent. OPA also contains an archive dating back to 1990. The United States has identified some data collection activities that are not marine scientific research.275 These include: 1. Prospecting and Exploration of Natural Resources For the United States, “MSR is the general term most often used to describe those activities undertaken in the ocean and coastal waters to expand scientific knowledge of the marine environment and its processes.”276 This general concept is in symmetry with the notion that MSR comprises those activities undertaken with the purpose of furthering the acquisition of knowledge about the marine environment, and its phenomena, for advancement and progress of humankind for peaceful purposes. Articles 243 and 246, para. 3, of the 1982 Convention, adhere to this philosophy.277 From a different scientific angle, this characterization of MSR coincides with the notion of “basic” or “fundamental research.” Therefore, when MSR centers its objective on the acquisition of data for the localization, exploration, prospecting and exploitation of any natural resources in the marine environment, this activity legally ceases to be MSR and becomes a “Non-MSR” activity, under the categorization established by the United States. As a “Non-MSR” activity, the “prospecting and exploration of natural resources” 275

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The categories of data collection activities that are not MSR activities adopted by the U.S. Department of State are based on the classification of MDC (Marine data collection) formulated by J. Ashley Roach in his paper titled: Defining Scientific Research: Marine Data Collection (2005), cited in supra note 261. Id. at 2. Art. 243 of the LOS Convention, regarding the promotion of international cooperation for MSR, mentions “the efforts of scientists in studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them;” and Art. 246, para. 3, referring to MSR in the EEZ and in the continental shelf, regarding “marine scientific research projects . . . carried out exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind.” (emphasis added).

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is squarely placed outside the 1982 LOS Convention and, for that reason, the United States has the exclusive and discretionary power to deny its consent with no legal implications relative to said Convention. One of the most distinct legal characteristics of the EEZ is the exercise by the coastal State of “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and its subsoil, and with regard to other activities for the economic exploration and exploitation” of said zone.278 Thus, these rights are exclusive to the coastal State and they carry important economic and commercial information that translate into proprietary information belonging to the coastal State. Accordingly, the coastal State has the power to control the conduct of these Non-MSR activities by third States and to subject the prospecting for and exploration of natural resources to a special domestic legal regime different than that prescribed by the LOS Convention. It should be made clear that the United States does not require permission to conduct MSR in the U.S. EEZ unless it involves (i) the study of marine mammals; (ii) the taking of commercial quantities of marine resources; or (iii) if any part of the research involves contact with the U.S. continental shelf.279 2. Hydrographic Surveys (for Enhancing the Safety of Navigation) These activities have turned into an indispensable component for any sound and safe navigation for all types of vessels, especially in those marine areas close to ports and other coastal constructions or installations.280 The LOS Convention has specifically referred to these activities, for example, in Articles 21, para. 1, sub. para. (g) and 40,281 relative to innocent passage and the transit passage through straits, respectively, recent practical experience has clearly 278 279

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Art. 56, para. 1, sub-para. (a), of the LOS Convention. See Roach, supra note 261 at 5. See also the U.S. Department of State web site, supra note 273. Roach refers to “Hydrographic surveys” as “activities undertaken to obtain information for the making of navigational charts and for the safety of navigation.” They include “the determination of the depth of water, the configuration and nature of the natural bottom, the direction and force of currents, heights and times of tides and water stages, and hazards to navigation. This information is used for the production of nautical charts and similar products to support the safety of navigation, such as Sailing Directions, Light Lists and Tide Manuals for both civil and military use.” Taken from the Consolidated Glossary of Technical Terms Used in the U.N. Convention on the Law of the Sea, International Hydrographic Bureau (IHB), Special Pub. No. 51; see supra note 18 at 4. Art. 21 of the LOS Convention reads: “1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following: (g) marine scientific research and hydrographic surveys;” and Art. 40: “During transit passage, foreign ships, including marine scientific research and hydrographic ships may not carry out

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demonstrated that there are certain “overlaps” and ambiguities between hydrographic surveys and MSR in the EEZ, including military surveying.282 Given the sensitive nature of certain data collection activities – such as hydrographic surveys and military surveying – the United States determined that hydrographic surveys (for enhancing the safety of navigation) should be legally treated as a distinct Non-MSR activity. The inclusion of this category as a Non-MSR activity is fully justified when one considers the terrorist attacks launched against the United States by air and by the sea. 3. Military Activities Including Military Surveys These activities “collect data for military – not scientific – purposes which is not normally available to the public scientific community unless it is unclassified and was collected on the high seas.”283 Traditionally, warships and other naval vessels have regularly conducted marine data collection activities generally referred to as “military surveys.” It has been asserted that the “United States regards military surveying as similar to hydrographic surveying and thus part of the high seas freedoms of navigation and overflight, and other international lawful uses of the sea related to those freedoms, and conducted with due regard to the rights and duties of the coastal State.”284 Military activities and military surveys are also essential for the gathering of data and information for intelligence purposes. With the advancement of scientific instruments and technologies, sometimes the collection of MDGs for safety navigation purposes including, for example, the configuration and nature of the seabed, may provide essential information used by submarines to determine how close can they get to the coast of a given country.

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any research or survey activities without the prior authorization of the States bordering straits.” (emphasis added). See Bateman, supra note 250 at 163–174. Id. Roach adds that military surveys may include “oceanographic, hydrographic, marine geological/geophysical, chemical, acoustic, biological and related data. The data collected may be in classified or unclassified form..” Ibid. at 264. Bateman, supra note 250 at 163–164. This author asserts that the United Kingdom shares the same position as the United States regarding the so-called “Military data gathering” (MDG). According to the U.K., “MDG activities are not specifically addressed in UNCLOS and there is no language stating or implying that MDG may be regulated in any manner by coastal States outside the territorial sea or archipelagic waters. It is fully consistent with UNCLOS that such MDG is a high seas freedom. States have the right to engage in MDG anywhere outside foreign territorial seas and archipelagic waters.” Taken from Appendix: Military Data Gathering: The U.K. Definition of Military Data Gathering (MDG), reproduced by Bateman, Id. at 173 (emphasis added).

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The gathering of this type of data in the high seas or when it takes place in relation with the seabed and ocean floor beyond the limits of national jurisdiction (i.e., the International Seabed Area) has been explicitly recognized by the 1982 LOS Convention as a recent addition to the freedom of the seas incorporated in the 1982 LOS Convention;285 however, when it takes place in the exclusive economic zone (and especially in areas close to the outer boundary of the territorial sea of the coastal State), this practice is controversial because of differences of opinion and interpretation as to whether military activities, including military surveys, are allowed by the 1982 Convention and by international law at large.286 The policy adopted by the United States, explicitly asserting that “military activities including marine surveys” are not considered to be MSR, within the meaning of the 1982 Convention and international law, intends to avoid any controversy in this regard. 4. Environmental Monitoring and Assessment of Marine Pollution Pursuant to Section 4 of Part XII of the Convention The protection and preservation of the marine environment was one of the most serious preoccupations of the delegations that participated in the negotiation and formulation of the 1982 LOS Convention. The result of their work is reflected in the lengthy Part XII of the convention that begins with the admonition that “States have the obligation to protect and preserve the marine environment.”287 Section 4 of this part refers to “Monitoring and Environmental Assessment.”288 Intense maritime traffic takes place in certain major ports of the United States, and in general around its long coastlines, including the exploration and commercial exploitation of marine resources, such as fishing and oil. Major pollution sources of the marine environment are associated with vessels and land sources. To effectively tackle marine pollution problems, the U.S. Commission on Ocean Policy prepared a comprehensive national program addressing coastal

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Art. 87, para. 1, sub-para. (f), freedom of scientific research, subject to parts VI and XIII of the 1982 LOS Convention. See, for example, Bateman, supra note 250 at 173; Galardosi and Kaufman, supra note 267, Part V: Recent Conflicts within Foreign EEZs at 292–296; Zhang Haiwen, supra note 270, Part V: Military Activities in the EEZ at 36–39; and B. Oxman, supra note 266, Part II: Areas Seaward of the Territorial Sea at 824–829, and 5. The Disclosure of Sensitive Information at 822–824. Art. 192, LOS Convention. Section 4 is composed by Articles 204 to 206 relative to: Monitoring of the risks or effects of pollution, Publication of reports and Assessment of potential effects of activities, respectively.

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water pollution, limiting vessel pollution and improving vessel safety and managing offshore energy and other mineral resources.289 The United States, as an “Ocean Nation,”290 determined that “environmental monitoring and assessment of marine pollution pursuant to section 4 of Part XII of the Convention” do not qualify as MSR activities. Accordingly, the United States might not allow foreign MDCs regarding marine pollution; however, when it does, the U.S. has the right to subject the conduct of those MDCs by foreign nationals and vessels to certain special conditions and requirements, at the discretion of the United States. 5. The Collection of Marine Meteorological Data and Other Routine Ocean Observations This MDC activity fits within the category of Operational oceanography formulated by Roach. According to him, these activities include “routine collection of standards data sets, such as temperature, pressure, current, salinity and wind. It may be conducted in the oceans, at the air-sea interface, and in the atmosphere. This data is used for monitoring and forecasting of weather (meteorology), climate and ocean conditions (e.g., surface currents and waves.”291 Under the umbrella of conducting this MDC, foreign nationals and vessels may undertake very wide range and possibly unreported data collection activities. To avoid this possibility, the United States opted to categorize these MDCs involving marine meteorological research and other routine oceanographic observations as a Non-MSR activity, subject to the exclusive and strict control of the United States.292

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U.S. Commission on Ocean Policy. An Ocean Blueprint for the 21st Century. Final Report. Washington, D.C. (2004). The Final Report of the U.S. Commission on Ocean Policy mentions that “Over half of the US. population lives in coastal watershed counties and roughly one-half of the nation’s gross domestic product ($4.5 trillion in 2000) is generated in those counties and in adjacent ocean waters,” Id. at 3. It is also recognized that “[T]here is widespread agreement that our oceans and marine resources are in serious trouble, increasingly affected by rapid growth along our coasts, land and air pollution, unsustainable exploitation of too many of our fishery resources, and frequently ineffective management. The consistent message . . . is that we must act now to halt continuing degradation” Ibid. See Roach, supra note 261 at 4. This author explains that “The data is transmitted from sensor to shore in near real time and is made available to the public in near real time.” Id. Regarding “routine ocean observations,” the United States clarifies that these “include the voluntary ocean observations programs of the Joint IOC-WMO Technical Commission on Oceanography and Marine Meteorology (JCOMM), and the Argo program.”

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6. Activities Related to Submerged Wrecks or Objects of an Archeological or Historical Nature According to the 1982 LOS Convention, “States have the duty to protect objects of an archeological and historical nature” found anywhere in the marine environment.293 This MDC activity is closely related to the law of salvage and the law of finds – a technical legal area governed by international maritime law – and to the 2001 UNESCO Underwater Cultural Heritage Convention.294 Given the special archeological and historical nature of these submerged objects, and taking into consideration that a number of them have already been found offshore the United States, and in certain Caribbean islands, this country determined that any MDC activities relating to these objects are a Non-MSR and, as a consequence, under a special regulatory framework subject to the special conditions established by the United States, the 1982 LOS Convention and international law. In the letter that Warren Christopher, Secretary of State, sent to President William J. Clinton, recommending that the 1982 Convention be transmitted to the Senate for its advice and consent in 1994,295 the following paragraph referred to marine scientific research in the following terms: The essential role of marine scientific research in understanding and managing the oceans is also secured. The Convention affirms the right of all States to conduct marine scientific research and sets forth obligations to promote and cooperate in such research. It confirms the rights of coastal States to require consent for such research undertaken in marine areas under their jurisdiction. These rights are balanced by specific criteria to ensure that coastal States exercise the consent authority in a predictable and reasonable fashion to promote maximum access for research activities.296

From the perspective of the United States – although not a party to the 1982 Convention – this country adopted administrative ocean policies similar to 293 294

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Art. 303, para. 1, LOS Convention. See Louis B. Sohn et al., Law of the Sea in a Nutshell (2nd ed.), West (2010) at 241–246; and Donna R. Christie and R.G. Hildreth. Coastal and Ocean Management Law in a Nutshell (3rd ed.), West (2007) at 162–179. See also David J. Bederman. Congress enacts Increased Protections for Sunken Military Craft, 100 A.J.I.L. 649 (2006) and Guido Carducci. New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage, 96 A.J.I.L. 419 (2002). See Secretary of State’s Letter of Submittal to the President, Department of State, Washington, September 23, 1994. Sen. Treaty Doc. 103–39, pp. V-XI; 104 Cong. Rec. S14468; 34 Int’l Legal Materials 1397–1400 (1995) (emphasis added). Ibid. A similar statement appears in the Presidential Letter of Transmittal of the Law of the Sea Convention signed by President William J. Clinton at The White House on October 6, 1994. In this letter, President Clinton added: “Following the adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to the traditional uses of the oceans and to encourage other countries to do likewise.” (emphasis added).

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those followed by Mexico (and by many other countries). On March 10, 1983, President Ronald Reagan made a “proclamation” establishing an exclusive economic zone of 200 nautical miles.297 This proclamation detailed the sovereign rights and the jurisdiction of the United States in its exclusive economic zone but omitted any reference to marine scientific research. However, in the “Fact Sheet” distributed the same day by the White House Office of the Press Secretary, it was stated: The President has decided not to assert jurisdiction over marine scientific research in the U.S. EEZ. This is consistent with the U.S. interest in promoting maximum freedom for such research. The Department of State will take steps to facilitate access by U.S. scientists to foreign EEZ’s under reasonable conditions.298

On March 11, 1983, the U.S. Department of State (Bureau of Oceans and International Environmental and Scientific Affairs) issued a bulletin to the U.S. marine scientific community informing them that the EEZ proclamation “means that the United States now recognizes coastal State jurisdiction over marine scientific research within claimed exclusive economic zones, if that jurisdiction is exercised reasonably in a manner consistent with international law.” The bulletin added: The United States has not asserted jurisdiction over marine scientific research off our coasts. Therefore, foreign vessels may operate off the United States coast as before. Permission will be required within three miles,299 for continental shelf research, and for certain types of fisheries and marine mammal research.300

Like Mexico, the United States has not enacted specific “regulations” on marine scientific research and also like Mexico, the United States has adopted an administrative mechanism consisting of “reasonable rules . . . and procedures” on marine scientific research in close symmetry with Article 255 of the 1982 Convention.301

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President Reagan’s Proclamation on the Exclusive Economic Zone, No. 5030, March 10, 1983 at 48 FR 10605, 3 CFR, 1983 Comp., p. 22. Fact Sheet: United States Oceans Policy. The White House, Office of the Press Secretary. Embargoed for Release at 4:00 PM EST, March 10, 1983 at 1. At that time (March 1986), the United States had a three nautical mile territorial sea. This width was enlarged in 1986 by President Reagan’s Proclamation No. 5928 on the Territorial Sea of the United States of America at 54 FR 777, 3 CFR, 1988 Comp. p. 547. With respect to the continental shelf, originally established by President Truman’s Proclamation 2667 of September 28, 1945, its legal regime has never been changed. U.S. Department of State, Washington, D.C. Bureau of Oceans and International Environmental and Scientific Affairs. The bulletin was signed by William Erb, Director, Office of Marine Science and Technology Affairs, and dated March 11, 1983. (Emphasis added). See Article 255, 1982 LOS Convention.

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Today, the U.S. Department of State through the Bureau of Oceans and International Environmental and Scientific Affairs (OES) formulates and implements the U.S. policy related to the conduct of marine scientific research (MSR) within the territorial sea (up to 12 nautical miles), the exclusive economic zone (EEZ up to 200 nautical miles), and the continental shelf (in some cases extended beyond 200 nautical miles).302 The information contained in the U.S. Department of State website recognizes that, in accordance with the Law of the Sea Convention, coastal States have the right to regulate and authorize marine scientific research in these maritime areas and, in all instances, consent of the coastal State is required. It further recognizes that said Convention prescribes that “appropriate official channels” be used to obtain consent for marine scientific research. The Office of Polar Affairs303 (OPA) serves as the appropriate official channel for U.S. (public- or privately funded) researchers seeking foreign consent as well as for foreign researchers seeking U.S. consent. On an annual basis, OPA manages approximately 400 applications for foreign consent and 70 applications for U.S. consent. OPA also maintains an archive of application and consent records that dates back to 1990. Although the 1982 Convention does not define marine scientific research, the United States has identified some data collection that are not marine scientific research. These include: • • • •

Prospecting for and exploration of natural resources; Hydrographic surveys (for enhancing the safety of navigation); Military activities including military surveys; Environmental monitoring and assessment of marine pollution pursuant to section 4 of Part XII of the Convention; • The collection of marine meteorological data and other routine ocean observations, including through the voluntary ocean observation programs of the Joint IOC-WMO Technical Commission on Oceanography and Marine Meteorology (JCOMM); and the Argo Program and activities; and • Activities related to submerged wrecks or objects of an archeological and historical nature.304 302

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This information (and all the indented paragraphs that follows) is taken verbatim from the U.S. Department of State website, Office of Ocean and Polar Affairs (OPA), page titled: Marine Scientific Research Authorizations at: http://www.state.gov/g/oes/ocns/opa/rvc/ (Last visited October 31, 2010). The text that follows is reproduced verbatim from this website. (The emphasis in Italics have been added by the author). The Office of Polar Affairs (OPA) within the U.S. Department of State’s Bureau of Oceans and International Environmental and Scientific Affairs (Marine Scientific Research Authorizations) under the direction of the Under Secretary for Democracy and Global Affairs, located at: http://www.state.gov/g/oes/ocns/opa//rvc/. Information reproduced from the U.S. Department of State website at: http://www.state .gov/g/oes/ocns/opa/rvc (Last visited October 31, 2010).

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As set forth in the Law of the Sea Convention, applications must be received by the coastal State no later than six months prior to the expected starting date of the marine scientific research (Article 248, LOS Convention). For information on the procedures for obtaining marine scientific research authorization interested foreign scientists/institutions are to comply with specific requirements found at MSR in the U.S. territorial sea and/or EEZ and/or on the U.S. continental shelf.305 The U.S. policy regarding the Exclusive economic zone (EEZ) and the territorial sea was established with Presidential Proclamations 5030 and 5928, respectively.306 Consistent with those proclamations, the advanced consent of the United States is required for marine scientific research (MSR) if and only if: • Any portion of the MSR is conducted within the U.S. territorial sea; • Any portion of the MSR within the U.S. EEZ involves the study of marine mammals or endangered species; • Any portion of the MSR within the U.S. EEZ requires taking commercial quantities of marine resources; or • Any portion of the MSR within the U.S. EEZ involves contact with the U.S. continental shelf.307

It is also the U.S. policy not to unreasonable deny or delay consent for marine scientific research. The United States reserves the right to participate in the research activity. In addition, the foreign scientist/institution is required to answer an “Application for Consent to Conduct Marine Scientific Research in Areas Under National Jurisdiction” of one or more U.S. Coastal States. This five-page Application is formed by these sections: 1) General Information (Seven categories); 2) Description of Project (Three categories); 3) Methods 305

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The U.S. Department of State website suggests to interested scientists/institutions to contact OPA via telephone for more information regarding U.S. policy and procedures. In addition, same website enlists six related links to: 1) U.S. Department of Transportation; 2) Minerals Management Service in the U.S. Department of the Interior; 3) National Oceanic and Atmospheric Administration, U.S. Department of Commerce; 4) National Science Foundation; 5) Office of Naval Research; and 6) University-National Oceanographic Laboratory System, for the foreign scientists/institutions to obtain information regarding specific additional requisites and obligations to be complied by them in conformance with the applicable U.S. legislation. For the conduct of MSR in the U.S. territorial sea, and/or the U.S. EEZ and/or the U.S. continental shelf the U.S. Department of State has this special website: http://wwww.state. gov/g/oes/opa/rvc/3503.htm. This website details the U.S. policy on these marine spaces, the Procedure that has to be followed; information regarding any Research Plan Changes/ Cancellations; Post-Research Requirements and five Related Links relative to: 1) the Endangered Species Act; 2) Guidelines for Improved Cooperation between Arctic Researchers and Northern Communities; 3) the Law of the Sea Convention; 4) the Magnuson-Stevens Fishery Conservation and Management Act; and 5) the Marine Mammal Protection Act. Information reproduced from the U.S. Department of State website, see supra note 304.

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and Means to be Used (Six categories); 4) Installations and Equipment (One category); 5) Geographical Areas (Three categories); 6) Dates (Two categories); 7) Port Calls (Three categories); 8) Participation (Two categories); and 9) Access to data, samples and research results (Four categories).308 In sum, the U.S. oceans policy with regard to the conduct of marine scientific research (MSR) by foreign vessels requires the advanced consent of the United States: 1. within the territorial sea; 2. within the U.S. EEZ that involves (a) the study of marine mammals or endangered species; or (b) requires taking commercial quantities of marine resources; and 3. within the U.S. continental shelf when it involves contact with it. 4. Since the 1982 U.N. Convention on the Law of the Sea does not define marine scientific research, the United States has identified among the activities that are not considered as marine scientific research the following: (a) prospecting for and exploration of natural resources; (b) hydrographic surveys; (c) military activities and surveys; (d) environmental monitoring and assessment of marine pollution pursuant to Section 4 of Part XII of the 1982 Convention; (e) the collection of marine meteorological data and other routine ocean observations, including some voluntary observation programs; and (f) activities related to submerged wrecks or objects of an archeological and historical nature. 5. Foreign researchers/institutions seeking to conduct MSR in any of the areas described above are: (a) To duly complete the “Application for Consent to Conduct MSR in Areas Under National Jurisdiction” of any coastal State of the United States of America; (b) to seek coastal State consent through OPA; (c) to develop their MSR plans in consultation with scientists from the relevant coastal State(s); and (d) to include letters of endorsement from coastal State partners with their Application. 6. As set forth by the 1982 Convention, application must be received by the coastal State no later than six months prior to the expected starting date of the MSR; 7. Participation of U.S. scientists is expected in the conduct of MSR activities; and 8. Foreign researchers/institutions are to coordinate the conduct of MSR with the appropriate U.S. departments, agencies or academic institutions and to comply with the applicable U.S. legislation.

From the preceding information, it seems that today the United States adheres quite closely with the provisions of the 1982 Convention on marine scientific research, despite the fact that this country – as pointed out earlier – is not a formal party (unlike Mexico) to said convention.

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This Application is available at this web site: http://www.state.gov/g/oes/ocns/opa/rvc/index. htm. In general, this Application is similar to the MSR Application used by Mexico. Both of these Applications are reproduced in the Appendix that appears at the end of this chapter.

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This may be attributed to the fact that, as pointed out by President Reagan in 1983, most of the provisions of said Convention “with respect to traditional uses of the ocean . . . generally confirm existing maritime law and practice and fairly balance the interests of all States.”309 In other words, the 1982 Convention is largely a codification work of customary international law of the sea. Secondly, the United States played a most active role in the formulation and drafting of the 1982 Convention, including in particular its Part XIII on marine scientific research.310 In closing, when one analyzes the respective legal and administrative policies of Mexico and the United States regarding the conduct of marine scientific research by foreign vessels, in particular those relative to the requirements for the granting of consent in the different marine zones, the importance given to resource-oriented research as a distinguishing factor for MSR; the administrative mechanism to apply rules and procedures in this area; the format and content of the MSR application; the involvement of governmental agencies and academic institutions; the application of pertinent provisions of domestic law; the participation of coastal State scientists in the MSR project, etc., one is moved to conclude that there is a parallelism between both countries. G. Clearances Granted to United States Vessels for MSR Projects in Mexico Mexico, with its 11,694 km. of coastlines, attracts the attention of foreign scientists because of its two semi-enclosed seas: the Gulf of Mexico and the Gulf of California with areas of 1,768,000 sq. km. and 181,000 sq. km., respectively. Another area of interest is the western coast of the Baja California peninsula, with 1,740 km. of coastlines and Mexico’s tropical Pacific Ocean from Cabo Corrientes to the Rio Suchiate, serving as the international boundary with Guatemala, with 2,234 km. of coastline. The Mexican Caribbean is also represented with 735 km. of a beautiful coastline.311 Out of thirty-two political entities (i.e., 31 States and one Federal District), 17 have marine coastlines, 11 in the Pacific Ocean and Gulf of California;312 309

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Statement by President Reagan regarding the establishment by the United States of a 200nautical mile Exclusive economic zone. The White House, Office of the Press Secretary, March 10, 1983 at 1. For a review and commentary of the role of the United States at UNCLOS III, see Nordquist, A Commentary, Vol. III, supra note 13 at 429–437 and 438–661. Data taken from Guadalupe de la Lanza Espino. Características Físico-Químicas de los Mares de México (Physical-Chemical Characteristics of the Mexican Seas).UNAM (2001) at 15–16. These States are: 1) Baja California (880 km.) in the Pacific and (675 km.) in the Gulf of California; 2) Baja California Sur (1,400 km. in the Pacific) and 830 km. in the Gulf of California; 3) Sonora (1,207 in the Gulf of California); 4) Sinaloa (640 in the same Gulf); and in

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and the remaining five in the Gulf of Mexico313 and one in the Caribbean.314 Mexican islands have attracted attention since the arrival of the Spaniards in 1519, as well as the interior of the Gulf of California because of the Colorado River delta; the tectonic activity in that area, and the presence of metallogenetic holes. In the Pacific Ocean, the presence of polymetallic nodules in the proximity of Clarión is well known. In the Gulf of Mexico the coastal lagoons and the mangroves have been a source of numerous scientific research activities, but the presence of vast deposits of hydrocarbons and natural gas in the extended submarine continental shelf are a constant source of exploration by Mexico and the United States. Given the United States’ geographical contiguity to these intriguing marine areas, it is only natural to see a larger presence of U.S. vessels conducting scientific projects in virtually all marine spaces under Mexico’s sovereignty and jurisdiction. A review of the list of foreign scientific research cruises conducted by foreign scientists and authorized by the government of Mexico jointly published in 1993 by the Secretariat of Foreign Affairs (SRE) and the Secretariat of the Navy (SM) between 1976 and 1993, out of a total of 278 authorized research vessel projects, 252 were conducted by the United States.315 During this period, the areas where the U.S. vessels conducted their MSR projects included the Gulf of California and Baja California, the Pacific Ocean, the Gulf of Mexico, Mexican Islands and offshore areas in the States of Yucatán, Tamaulipas, Campeche, Sonora, Sinaloa and Veracruz, in descending order of importance.316 Recently, the Secretariat of Foreign Affairs (SRE) updated the data compiled on foreign marine scientific research (MSR) clearances that was originally

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315

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the Pacific: 5) Nayarit (300 km.); 6) Jalisco (341 km.); 7) Colima (139 km.; 8) Michoacán (246 km.); 9) Guerrero (484 km.); 10) Oaxaca (597 km.) and, 11) Chiapas (255 km.) The States in the Gulf of Mexico are: 1) Tamaulipas (475 km.); 2) Veracruz (745 km.); 3) Tabasco (183 km.); 4) Campeche (523 km.); and Yucatán (342 km.). The State of Quintana Roo (865 km.). Data taken from De la Lanza Espino and C. Cáceres Martínez. Lagunas Costeras y el Litoral Mexicano (Coastal Lagoons and the Mexican Littoral). UBCSur (1994) at 13–14. Data taken from the list titled: Investigaciones Científicas realizadas por Extranjeros y Autorizadas por Mexico, en Zonas Marinas de Jurisdicción Nacional (Scientific Research conducted by Foreigners and Authorized by Mexico, in Marine Zones under National Jurisdiction) published in the official book titled: Normatividad para la Investigación Científica por Extranjeros en Zonas Marinas de Jurisdicción Nacional (Normativity for Scientific Research by Foreigners in [Mexico’s] Marine Zones under National Jurisdiction). Secretaría de Relaciones Exteriores SRE/Secretaría de Marina (SM), México (December 1993) at 351–431. See U.S. MSR Charts in Appendix Five at the end of this chapter. Ibid. For the list of scientific areas in foreign MSR projects, see Appendix Five at the end of this chapter.

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published in the book “Normatividad” comprising MSR projects from 1976 until 1993. The new update, prepared by the Dirección General de América del Norte (General Directorate for North America, that handles the SRE’s relations with the United States and Canada) contains information regarding MSR activities from January 1994 to December 2009 in different Mexican marine zones. (SRE, Official letter No. 404 dated February 17, 2010). According to the latest update (February 2010), a total of 330 MSR projects were authorized by Mexico for U.S. vessels from January 1994 to December 2009.317 This is the largest number of MSR clearances ever granted to the United States over a period of fifteen years in the history of the marine relations between both countries. These MSR projects involved fifty-five vessels318 (including submarines, remote-controlled devices and prototypes) and they embraced a wide range of scientific disciplines319 that virtually covered the major marine zones that surround the Republic of Mexico. The very high number of MSR projects submitted by the United States (and an insignificant few by Canada) that were expressly approved by Mexico, speak eloquently of the excellent marine relations Mexico maintains with both countries. Moreover, the communications between the Secretariat of Foreign Affairs (SRE) with the American Embassy in Mexico City and with the U.S. Department of State (but especially between the Mexican and American scientists directly involved in the project) are open, friendly and expeditious. Denials given to United States MSR projects by SRE have been nil or insignificant and they usually take place when a U.S. academic or scientific institution has outstanding obligations with Mexico,320 which may happen in very rare occasions.

317

318

319

320

Oficio No. DAN-00404, Dirección General para América del Norte, Secretaría de Relaciones Exteriores (SRE), dated February 17, 2010. (Special communication to the Author). The vessels are: 1) Alvin, 2) Altair, 3) Amigo, 4) Antares, 5) Atlantis, 6) Atlantis II, 7) Cape Hatteras, 8) Cavalier, 9) David Starr Jordan, 10) Del Fish, 11) Deep Worker, 12) Deep Rover, 13) Discoverer, 14) Don Jose, 15) D.S.J., 16) Endeavor, 17) Explorer of the Seas, 18) F.G. Walton Smith, 19) Gyre, 20) Gus-D, 21) Gordon Gunter, 22) Jason, 23) Longhorn, 24) Mc Arthur, 25) Mc Arthur II, 26) Mako, 27) Mar VII, 28) Maurice Ewing, 29) Melville, 30) Nathaniel B. Palmer, 31) New Horizon, 32) Orca, 33) Odyssey, 34) Oregon II, 35) Outer Limits, 36) Pacific Storm, 37) Plan B, Pelican, 38) Point Sur, 39) Rio Rita, 40) Robert C. Seamans, 41) Robert G. Sproul, 42) Ronald H. Brown, 43) Roger Revelle, 44) Royal Polaris, 45) Sedco BP/471, 46) Seaward Johnson II, 47) Shogun, 48) Sioux, 49) Spondylus, 50) Swing, 51) Tiburon, 52) Thomas Jefferson, 53) Western Flyer, 54) Wocoma, 55) Yellowfin, 56) Zephyr. Save for an insignificant number of vessels from Canada, the remaining are U.S. vessels. The number and variety of scientific disciplines was quite large. However, for practical purposes, these disciplines were grouped into 20 categories. See Article 246, para. 4(d) of the 1982 LOS Convention. Since the “Regulations” to the Federal Oceans Act (FOA) of 1986 have not yet been enacted, the provisions of Part XIII

368

Chapter Five Year Year 1994, 15 2009, 13 Year 1995, 18

Year 2008, 21 Year 2007, 12

Year 1996, 25

Year 2006, 13 Year 2005, 19

Year 1997, 30

Year 2004, 19

Year 2003, 16

Year 1998, 35

Year 2002, 22 Year 1999, 32

Year 2001, 21 Year 2000, 19

Source: SRE, Official letter No. 404 of February 17, 2010.

U.S. MSR Cruises by Year (1994–2009)

Until now, Mexico has not suspended any U.S. MSR projects and the unusual cancellation of MSR projects have been kept to a minimum, usually triggered by administrative delays attributed to bureaucratic reasons and not based on substantive objections. The reason behind these expeditious and friendly relations between Mexico and the United States is closely associated with the fact that Mexico’s federal public administration has established an “institutional mechanism” that handles all MSR foreign requests – including those from the United States – with the importance, attention and expeditiousness they deserve. The fact that the U.S. Embassy is directly involved in the process to submit the MSR U.S. projects to SRE via diplomatic note constitutes an important backing both on the merits of the scientific or academic institution. Clearly, there are important reasons for Mexico and the United States that suggest that the marine relations between both countries will continue to grow and improve in the years to come.

(Arts. 238–265) of the 1982 LOS Convention (to which Mexico is a party) acquire special importance.

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Arthopods, Biology and Archeology, Education Ecology Benthos, Bacteria and and Filming 2% Parasites 4% Miscellaneous 3% 6% Climate Change, Whales Corals and Parasites 6% 3% Whale-sharks 2% Dolphins 2% Turtles 12% Fish 15%

Tuna 4% Flora and Fauna 2%

Sharks 3%

Frogs, Parasites and Reptiles 1%

Geology and Geophysics 9% Genetics Oceanography(biological, 1% chemical, phisical) Manta rays and 16% Hydro-thermal Molluscs 3% Vents 3% Invertebrates and Isopods 4% Source: SRE, Official letter No. 404 of February 17, 2010.

U.S. MSR by Scientific Areas(1994–2009)

6. Conclusions The legal regime applied by Mexico to marine scientific research has been an important area of sustained interest in its relations with the United States. Numerous U.S. scientific and academic institutions in the late 19th and early 20th centuries, as a result of their explorations and MSR offshore Mexico, provided this country with valuable scientific contributions about its surrounding marine spaces, including flora and fauna. In this respect, the early expeditions to Mexican islands conducted by the California Academy of Sciences in the late 19th century and early 20th century deserve special recognition. From Mexico’s legislative viewpoint prior to 1986, when the FOA was enacted, no special effort was made to regulate the conduct of MSR by foreign scientific and academic institutions offshore Mexican marine spaces. Then, as

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Chapter Five Mexican National Territory 9%

Oceanography 8%

Caribbean 3% Geology & Geophysics12%

Pacific Ocean 20% Turtles 21%

Fish 20%

Gulf of Mexico 22% Gulf of California 41%

Island 5%

Oceanography 19%

Fish 21%

Source: SRE, Official letter No. 404 of February 17, 2010.

U.S. MSR by Geographical Region(1994–2009)

well as today, foreign MSR has been traditionally regulated – as it continues until today – through administrative mechanisms rather than legislative provisions. It was not until the enactment of the FOA in 1986 when some legal and administrative order with regard to Mexico’s marine spaces was adopted for the first time in the long legislative history of that country. However, in the area of MSR this federal statute merely reproduced the six basic and brief principles enunciated by the 1982 LOS Convention on this matter without addressing the most important issue: the formulation of the specific legal regime to govern the conduct of MSR by foreign scientists and vessels in the marine spaces under the control and authority of that nation. As a party to the 1982 LOS Convention, the FOA adheres closely to the provisions of the 1982 Convention in establishing the legal characteristics, rights and obligations that apply to each of the five marine spaces under the sovereignty or jurisdiction of Mexico. However, certain details inherent to each of those spaces and other important technical questions associated with them, such as those relative to implied consent, the cessation and suspension of MSR activities, for example, are still to be formulated when the corresponding Regulations are eventually enacted. Although in the “Fact Sheet” the White House issued in light of President Reagan’s Proclamation of 1983 establishing a 200 n.m. EEZ it was clarified

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that: “The President . . . decided not to assert jurisdiction over marine scientific research in the EEZ,” the fact of the matter is that, as of today, the U.S. Department of State “implements a U.S. policy related to the conduct of MSR by foreign nationals within the territorial sea, the EEZ and the continental shelf.” Pursuant to this policy, in the Department of State’s web site it is recognized that, in accordance with the 1982 LOS Convention, “coastal States have the right to regulate and authorize MSR [in the cited marine areas] and, in all instances, consent of the coastal state is required and that appropriate official channels must be used to obtain consent for MSR.” The Office of Polar Affairs of said Department serves as the “appropriate official channel . . . for foreign researchers seeking U.S. consent.” In addition, the U.S. has identified seven areas of data collection that are not marine scientific research and, as a consequence, the U.S. is free not to grant its consent for any of these areas or to do it subject to its discretion and in conformance with certain conditions and requirements. Based on the administrative mechanism adopted by Mexico for authorizing foreign MSR activities offshore that country, and the U.S. marine policy on MSR implemented by the U.S. Department of State, both countries appear to have a close parallelism for receiving applications, evaluating them and granting them, in close symmetry with the provisions of the 1982 LOS Convention. In other words, both Mexico and the United States adhere to the rules established by the 1982 Convention on this matter.

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Chapter Five: Appendix Five

Appendix Five Document 5.1 CONDUCTING SCIENTIFIC RESEARCH IN MEXICO For the complete text of the “Research Permit Application Requirements,” including the Required Application Forms and additional information, please download it from the website of the Embassy of the United States of America in Mexico City at: http:// mexico.usembassy.gov/eng/env_scientific_research.html

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Document 5.2 DEPARTMENT OF STATE NOTICE TO RESEARCH VESSEL OPERATORS NO. 98 The State Department web site below is a permanent electronic archive of information released prior to January 20, 2001. Please see http://www.state.gov/ for material released since President George W. Bush took office on that date. This site is not updated so external links may no longer function. Contact us with any questions about finding information. NOTE: External links to other Internet sites should not be construed as an endorsement of the views contained therein.

NOTICE TO RESEARCH VESSEL OPERATORS NO. 98 THIS NOTICE CANCELS NTRVO NO. 63) Subject: Requirements for Conducting Marine Scientific Research in Mexican Waters. Released by the Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, August 5, 1991.

Enclosed is an official translation of Mexican Department of Foreign Relations Diplomatic Note No. 001187 dated June 19, 1990. This document provides written Mexican requirements relating to the processing of applications for permission to conduct scientific research in Mexican jurisdiction. The Department of State is only able to submit requests to Mexico that are in total compliance with the enclosed document, because the Mexican government will not initiate processing until it has the complete information. Also, because the processing is extremely time-consuming, late requests will only be forwarded if the scientist can demonstrate an extreme circumstance that precluded compliance. The requirements stipulate the payment of a fee for any marine scientific research involving the collection of samples of living resources in areas under Mexican jurisdiction. The Department of State has objected to this requirement and we have discussed its removal with various Mexican officials without success. It is our position that the fee is not allowed by the UN Law of the Sea Convention and also, it is not in compliance with customary international practice. So as not to jeopardize U.S. research initiatives, we recommend that the fees be paid under protest as we continue to seek resolution. Non-payment of the fee will result in the refusal of the Mexican Government to process the request. If research involving sampling of Mexican living resources is involved, the following procedure for payment of the collection fee must be followed: 1) Researchers must submit the fee payment for the current amount of the collection fee established by the corresponding Mexican Government Agency before consideration of the request by the Mexican Foreign Ministry will begin (due to Mexican

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currency fluctuation and variations in the peso/dollar, this amount is adjusted every three months). Researchers should contact this office to obtain the current fee rate (approx U.S. $ 700). 2) The payment must be made in the form of an international transfer of funds payable to “La Tesoreria de la Federacion” via any of the banking institutions in the Federal District of Mexico City. The check must also contain the following remarks: “Unidad de Asuntos Internacionales” and “Secretariate de Desarrollo Urbano y Ecologia”. 3) A copy of the transfer receipt should be sent to the Embassy Science Office by mail or telefax for its corresponding processing. Address as follows: Science Counselor Science Office Amembassy Mexico C/o P.O. Drawer 3087 Laredo, TX 78044 Fax. No.: (52) (5)511-9980 If the transfer receipt is not included with the request, the process will be held up until the receipt is received. If a researcher chooses to submit the request and pay the fee later, the Mexican Government will require 180 days to process the request from the time the fee is received. The same situation exists for provision of all other documentation, including passport photos, curriculum vita, and letters of support. Although not stated in the enclosed requirements, we have been informed by the Mexican Department of Foreign Relations that four copies are required of all post cruise obligations. The stated lead-time requirement for Mexico is 180 days. Therefore, it is required that all requests be submitted to the Department of State at least seven months prior to proposed research, and in compliance with Mexican requirements and the “UNOLS Handbook for International Operations of U.S. Scientific Research Vessels.” ---------------------------------------DEPARTMENT OF STATE DIVISION OF LANGUAGE SERVICES (TRANSLATION) LS NO. 132593 DHS/LM Spanish No. 001187 The Department of Foreign Relations presents its compliments to the Embassy of the United States of America and has the honor to refer to the meeting held at this department on March 27, 1990, to prepare for the Seventh Meeting of the Mixed Commission on Mexico-United States Scientific and Technical Cooperation. In this regard, and as agreed at that meeting, we are transmitting herewith the guidelines that apply to the handling of applications for permits to conduct scientific research

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in Mexican jurisdictional waters and territory, based on the national and international legislation now in force on this subject. The Department of Foreign Relations avails itself of this opportunity to renew to the Embassy of the United States of America the assurances of its high consideration. Mexico, D.F., June 19, 1990 The Embassy of the United States of America, Mexico City. I. REQUIREMENTS FOR THE APPLICATION 1. Any application by a foreigner must be sent through established diplomatic channels. ‘The Department of State shall forward the application to its Embassy in Mexico and the Embassy will, in turn, submit it for consideration by the Department of Foreign Relations. 2. The application shall be submitted sufficiently in advance of the date proposed for the beginning of the activities contemplated in the research project, in light of the procedures to be discharged. 3. It must contain detailed information regarding the nature and objectives of the research project. 4. The specific dates and geographic zones in which the research project is intended to be conducted must be provided. 5. The name, domicile, and basic information regarding the institution and scientists in charge of the project, and, as necessary, detailed information on the vessel. 6. The source of funding. 7. A detailed description of the schedule planned for the field operation, with an explanation of the objectives and the equipment to be used. 8. Specimen collection must indicate the common and scientific names of the species, as well as the volume planned to be collected. Payment of the respective fees must be made by international transfer to the Mexican Treasury, in the amount to be determined by the appropriate Mexican authorities. 9. The researcher in charge must send the following documents: a letter from the institution where he is employed, in support of the proposed research; a letter of consent agreeing to bear the costs for Mexican participants during the field work; a letter from a Mexican institution or researcher in support of the application; and the curriculum vitae of the researcher and two passport-size photographs. This list of requirements may vary depending on the type of research involved. Consultations are transmitted to the agencies and other relevant Mexican Government entities. The Department of Foreign Relations shall see that applicable international standards are observed and that Mexican technicians and scientists participate in the research projects. Once all responses are received from the agencies involved and should no other formalities be necessary, the Department of Foreign Relations will send a note verbale to the Embassy indicating the conditions to which the various agencies and institutions consulted have subjected the authorization.

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Chapter Five: Appendix Five

II. CONDITIONS TO BE MET BY THE RESEARCHERS If the requested research permit is authorized by the appropriate authorities of the Government of Mexico, the note will indicate the conditions to be met by the researchers. These are listed as follows: 1. The permit is issued in the name of the investigator in charge and is nontransferable; 2. The period of validity of the permit is indicated; 3. The permit indicates the purpose and objectives of the research; 4. The permit indicates the geographic area authorized for the research; 5. The permit gives the names of the Mexican participants. 6. The permit indicates the equipment that is authorized to be used. III. OBLIGATIONS OF THE RESEARCHERS The researchers named on the permit have the following obligations: 1. The permit holder must guarantee Mexican participation in the research. 2. The permit holder is prohibited from using explosives, toxic substances, and any method of research that may damage the species or alter the ecology of the environment. 3. The permit holder shall be responsible for any significant impact on the populations of wild and aquatic flora and fauna, and must therefore consider the risk of disturbing the ecosystem prior to conducting the research. The project shall not be carried out if the risk is high. 4. If a permit for collection is granted, the researcher must deposit 40 percent of all specimens collected, duly preserved and with requested collection data indicated, with some Mexican scientific institution. The researcher shall request acknowledgement of receipt thereof. 5. The permit holder is strictly prohibited from collecting, transporting, and utilizing any of the species of rare wild and aquatic flora and species threatened with or in danger of extinction, and from conducting activities in protected natural areas of Mexico. 6. The permit holder may undertake no activity other than that detailed in the permit. 7. Should any unforeseen change occur, the Department of Foreign Relations should be so informed in due time. 8. When the research requires permission from the Department of Fisheries, this will be attached to the note verbale. The permit holder has an obligation to acknowledge receipt thereof through the diplomatic channel, and to notify the Department of Foreign Relations within no more than 15 days of the date of validity thereof in the event it was not used, returning the original for cancellation. 9. When the researcher has requested authorization from the Department of Urban Development and Ecology (SEDUE), this will be attached to the note verbal. When possible, the researcher in charge should visit the appropriate state delegations of SEDUE to deliver his activity program in writing. 10. The Embassy shall send to the Department of Foreign Relations copies of the preliminary report and the detailed final report, as well as any publications,

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photographs, and any other resulting document. The means of access to the collections and data centers where the information and materials obtained will be concentrated shall be specified. If the agencies involved request any additional explanation on the results of the research, the permit holder shall furnish the necessary assistance in interpreting and evaluating them. IV. CLASSIFICATION OF THE RESEARCH WORK In order to assist in simplifying the obtaining of this kind of permit, scientific research activities will be classified in one of two groups: 1. Research in marine zones. Regardless of the type of vessel, aircraft, or equipment to be used, applications must be submitted at least 180 days in advance to allow time for the necessary consultations. 2. Research in Mexican air space and territory. The period required for processing of the application shall be at least 90 days prior to the start of the project. The various regimes applicable in each of our maritime zones, on the basis of which the Government of Mexico is empowered to grant or deny the applications for permits in Mexican jurisdictional waters, are contained in the United Nations Convention on the Law of the Sea, approved at Montego Bay, Jamaica, on December 10, 1982. [end of document]

Return to the DOSFAN Home Page. This is an official U.S. Government source for information on the World Wide Web. Inclusion of non-U.S. Government links does not imply endorsement of contents.

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Chapter Five: Appendix Five Document 5.3 Chart (a) Approval Process of Foreign MSR Projects, 1980–1990 40 35

Number of Requests

30 25 20 15 10 5 0

80

81

82

83

84

85

86

87

88

89

90

No Jurisdiction

0

0

0

0

0

0

0

1

1

0

0

No Response

0

0

0

0

0

2

2

7

4

0

0

Denied

0

2

3

0

0

0

2

2

2

2

3

Nonconforming

1

0

1

0

0

5

2

0

4

0

0

Cancelled

4

2

6

1

2

3

5

3

3

2

7

App. & Cancelled

0

2

0

0

0

0

2

2

7

0

0

Approved

21

17

7

7

10

10

8

17

14

15

18

Source: Data compiled by CONACYT, MSR Projects.

379

Marine Scientific Research in Mexico Document 5.3 Chart (b) Geographical Area of Foreign MSR Projects, 1980–1998 35 30 Number of Requests

25 20 15 10 5 0 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 1 2 1

1 2 2 5 4 3

0 2 0

0 0

0

1 0 1

2 6 0

0 0 0 0

1 3

0 0 2

1 0 2

1 2 1

2 1 2 3 4 7 2

Other

0 1

Yucatan Pacific Ocean

2 0

5 1 5

5 4

4 4 6 5 3 0 0 0

Baja California

8 10 4

1 4

3 4

5 6

6 4

7 8

8 8 10

Gulf of Mexico

3 5

0

0 0

0 2 3 5

0 0 0

0 0

0 0

1 2 2

Mexican Marine Zones

19 6

1

2 6

6 8 21 5

3 4 0

0 0

0 0

0 0 0

Source: Secretaría de Relaciones Exteriores/Marina. Normatividad para la Investigación Científica por Extranjeros en Zonas Marinas de Jurisdicción Nacional, 1976–June 1993. México (Archivos de la SRE) at 351–431.

380

Chapter Five: Appendix Five Document 5.3 Chart (c) Focus Area of U.S. MSR Investigations, January 1994 to September 1998

Number of MSR Projects

25 20 15 10 5 0

94

95

96

97

98

Fish

6

2

4

6

4

Turtles

2

2

3

4

3

Marine Mammals

0

2

0

5

2

Invertebrates

0

1

3

2

1

Geology

0

3

3

1

1

Oceanography

0

0

2

3

3

Other

4

3

5

1

3

Source: Secretaría de Relaciones Exteriores/Marina. Normatividad para la Investigación Científica por Extranjeros en Zonas Marinas de Jurisdicción Nacional, 1976–June 1993. México (Archivos de la SRE) at 351–431.

Marine Scientific Research in Mexico

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Document 5.3 Chart (d) Total Foreign MSR Projects, 1980–1998 35

Number of Projects

30 25 20 15 10 5 0 Total Requests

80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 31 27 7 4 12 12 17 31 16 16 21 10 13 9 13 15 19 22 17

Source: Secretaría de Relaciones Exteriores/Marina. Normatividad para la Investigación Científica por Extranjeros en Zonas Marinas de Jurisdicción Nacional, 1976–June 1993. México (Archivos de la SRE) at 351–415.

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Chapter Five: Appendix Five Document 5.4 SCIENTIFIC AREAS IN MARINE SCIENTIFIC RESEARCH PROJECTS, 1976–1993

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

Acoustics Algae Anchovy Archaeology Bathymetry Biology Biological films Black abalone Chlorophyl Clams Chemical residues Conch mollusks Continental shelf Corals Crustaceans Dolphins Humpback whale Eggs and larvae Fish Fisheries Geological faults Geology Gray whale Hake Heat flows Herring Hydrography Hydrothermal Hydrothermal vents Land cover

31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60.

Marine currents 61. Water samples Marine fauna 62. Whales Marine mammals 63. Zoogeography Marine measurements Marine organisms Marine sediments Marine species Marine surface Microseism Oceanic sediments Oceanic surface Oceanography Oil Organic matter Physiology Pinnipeds Plankton Porpoises Reefs Rocks Seabed Sea lions Seismic reflection Shrimp Sword fish Tectonic and volcanic activities Tropical cyclones Turtles “Vaquita” Walruses

Source: SRE – Marina. Normatividad 1976–1993, (México, 1994) at 347–350.

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Document 5.5 CONSOLIDATION OF U.S. MSR AREAS OFFSHORE MEXICO, 1994–2009 For practical purposes, based on information provided by Mexico’s Secretariat of Foreign Affairs (SRE, Official letter No. 404 of February 17, 2010), the numerous scientific areas of the 330 MSR cruises conducted by U.S. vessels offshore Mexico from January 1994 to December 2009 were grouped into the following twenty categories: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Archeology, education and filming Arthropods, biology and ecology Benthos, bacteria and parasites Climate change, corals and parasites Dolphins Fish Flora and fauna Frogs, parasites and reptiles Geology and geophysics Genetics Hydro-thermal vents Invertebrates and isopods Manta rays and molluscs Oceanography (Biological, chemical and physical) Sharks Tuna Turtles Whale-sharks Whales (Gray, humpback, blue) Miscellaneous (Sea lions, “Vaquita,” pharmaceutical, collections, ESSA, MODIS SIMRAD, DEPTHX)

384

Chapter Five: Appendix Five Document 5.6 U.S. Vessels That Conducted Research Offshore Mexico, 2000–2009321 Dates

Research description

Research sites

Approval322

WHOI323 University of Delaware

Jan 9–19 2000

Hydrothermal Vents in Guaymas Basin

DAN 04664 12/17/99

Melville

SIO

WHOI

n/a

DAN 01270 03/10/00

Atlantis

WHOI

OSU

12 Mar– 15 May 2000 24 Mar– 4 Apr 2000

n/a

DAN 00845 02/17/00

Melville

SIO

OSU

10 May– 8 Jun 2000

UH

22 May– 2 July 2000

Marine research to study pyrite as a crucial mineral and surface for microbial life. Routine bathymetric data collection Marine research on sources and consequences of fluid discharges along the San Clemente fault zone. Marine research to provide site survey information prior to the Ocean Drilling Project in the ETPO. Marine research to study the controls on the production and isotopic composition of Nitrous Oxide (n2o).

Vessel’s name

Vessel’s owner

Atlantis

R/V Roger SIO Revelle

321

Institute

Gulf of DAN 02086 Tehuantepec 05/10/00

Eastern DAN 01295 tropical 03/13/00 North Pacific

Source: U.S. Department of State (2010). Requests are approved or declined by the Dirección General para América del Norte – Secretaría de Relaciones Exteriores (DAN). 323 See abbreviations listed at the end of this document. 322

385

Marine Scientific Research in Mexico Document 5.6 (cont.) Vessel’s name

Vessel’s owner

Institute

Dates

Melville

SIO

SIO

Walton Smith

UoM

UoM

8–28 June Marine 2000 geophysical and seabeam research. 6–25 July Research on 2000 ribosomal DNA sequences in marine yeasts. 7 July– Annual marine 9 Dec mammal 2000 research on Stenella Population Abundance Monitoring (SPAM). 16–26 Aug Marine research 2000 on distribution and abundance of coastal sharks along the Mexican Gulf Coast. 19 Aug– Marine research 5 Oct on the effect 2000 of bioactive trace metals on phytoplankton and bacterioplankton dynamics. 6–18 Feb To test the new 2001 multibeam bathymetry system, SIMRAD EM 120 1–20 Mar To test the new 2001 multibeam bathymetry system, SIMRAD EM 120

David Starr NOAA Jordan And Mcarthur

NOAA/ NMFS

Oregon Ii

NOAA/ NMFS

NMFS

Melville

SIO

SIO

Roger Revelle

SIO

SIO

Roger Revelle

SIO

SIO

Research description

Research sites

Approval

Oaxacan Coast

DAN 02502 06/07/00

Mexican Caribbean coast

DAN 02933 07/05/00

Eastern tropical Pacific

DAN 02917 07/04/00

Gulf of Mexico

DAN 01508 03/23/00

Southwest Coast of Baja California

DAN 01507 03/23/00

Cedros n/a and middle America trench Cedros n/a and middle America trench

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Chapter Five: Appendix Five

Document 5.6 (cont.) Vessel’s name

Vessel’s owner

Institute

Dates

Robert G. Sproul

SIO

WHIO

10 May– 30 June 2001

McArthur

NOAA/ OMAO

NOAA/ OMAO

David Starr NOAA Jordan

NOAA/ NMFS

McArthur

NOAA

NOAA/ NMFS

F.G. Walton Smith

UoM

UoM

Robert Seamans

SEA

SEA

Research description

To map the physical oceanography and sample invertebrate larvae and zooplankton in coastal waters of Mexico 10 May– Explore 5 June protected and 2001 non-protected coral and hard bottom communities 15 July– Annual marine 1 Oct mammal 2001 research on Stenella Population Abundance Monitoring 8 Aug– Annual Marine 8 Oct Mammal 2001 Research on Stenella Population Abundance Monitoring 12–29 Marine research Aug 2001 to study ribosomal DNA sequences in marine yeasts 10 Oct– Educational 18 Nov Research on 2001 Oceanography and Oceanographic Sampling Techniques

Research sites

Approval

Coastal area from San Diego, California, to Punta Eugenia, Baja California Sur Gulf of Mexico

DAN 01624 05/09/01

Eastern tropical Pacific

Rescheduled for 8/01

Eastern tropical Pacific

DAN 02540 08/08/01

Caribbean Mexican coast

n/a

Pacific Ocean (see attached file)

DAN 02928 09/20/01

DAN 01656 05/17/01

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Document 5.6 (cont.) Vessel’s name

Vessel’s owner

Institute

Dates

Research description

Research sites

New Horizon

SIO

SIO

15 Nov– 10 Dec 2001

La Paz and DAN 02863 Manzanillo, 09/13/01 Mexico

Atlantis

WHOI

UNH

2 Jan– 12 Feb 2002

Atlantis

WHOI

UH

29 Apr– 20 May 2002

Robert G. Sproul

SIO

WHOI

26 May– 9 June 2002

Gyre

Texas A&M

Texas A&M 5 June– 15 Aug 2002

Explorer Of The Seas

Royal RSMAS / Caribbean UoM Cruise Lines Mexican Texas A&M Navy

Study to determinate what has Controlled the Spread on Anoxia and Laminated Sediments in the Northeast Pacific Ocean. Evaluation of the EPR Hydrothermal Systems: Causes of Continued Instability at 9–10 N vs. Stability at 21 N Study on Hydrothermal Sediments on the Guaymas Basin Observe the abundance of larvae of Chthmalus sp. Y Pollicipes polymerus Marine scientific research to study the Sigsbee Deep Supply long running and detailed data sets Study and Exploration on Deep Reefs and Coral Reefs on the Golf of Mexico

Antares

31 July 2002 – 31 July 2003 24 Aug– 7 Sept 2002

Approval

Eastern Tropical Pacific

DAN 03947 12/31/01

Gulf of California and Guaymas Basin Coastal area from San Diego, CA, to Punta Baja, BCS

DAN 01010 04/26/02

Gulf of Mexico

DAN 01321 06/04/02

Atlantic Ocean and Caribbean Sea Gulf of Mexico, Veracruz

DAN 01670 7/11/02

DAN 01186 05/21/02

DAN 02065 08/23/02

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Research sites

Approval

M. Ewing & New Horizon

LamontDoherty and SIO

GIT / SIO

10 Sept– 10 Nov 2002

Seismic and Geologic Study of the Gulf of California’s Rifting and Magnetism

DAN 02130 09/03/02

Robert C. Seamans

SEA

SEA

14 Oct– 30 Dec 2002

Veritas Vantage

Eidesvik A/S

Veritas DGC, Sener & Mexican Navy

1 Oct 2002 – 30 June 2003

Educational cruise on oceanography (S-183) 3D Seismic Survey in Alaminos Canyon

Gulf of California, Baja California, San Diego and Manzanillo Isla Socorro & Mar de Cortez

Nathaniel B. Palmer

Edison CalTech Chouest Offshore, Inc.

11 Oct– 11 Nov 2002

Seward HBOI Johnson II

UW

22 Oct– 22 Nov 2002

Roger Revelle

SIO

SIO

6–10 Jan 2003

New Horizon

SIO

SIO

3 Feb– 7 Mar 2003

DAN 02569 10/11/02

Gulf of DAN 02496 Mexico 10/04/02 (Alaminos Canyon) Area of U.S. Gulf of Mexico, extending into Mexican waters Collection of n/a DAN 02764 geophysical and 10/31/02 oceanographic data within territorial waters of Mexico Lagrangian Gulf of DAN 02679 Float Recovery Mexico and 10/21/02 Atlantic Ocean Scientific Pacific DAN 03157 experiment Ocean 12/27/02 off the coast of Baja California Contributions Pacific DAN 00277 taxa-specify Coast 02/03/03 to the productivity – development of biomarcadores

Marine Scientific Research in Mexico

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Research sites

Approval

Western Flyer

MBARI

MBARI

22 Feb– 28 May 2003

La Paz, BCS

DAN 00254 01/30/03

Robert G. Sproul

SIO

SIO

23 May– 6 June 2003

Baja California (Costa occidental de la Peninsula) & BCS

Cancelled

Seward Johnson

WHOI

WHOI

25 May– 7 June 2003

Oceanographic Research expedition in the Gulf of California Establish the proportions and frequencies of blue whales (Balaenoptera musculus) and their submarine behavior Sample the distribution of sulfur hexafluoride on a track starting in Barbados through Cuba

DAN 01100 05/12/03

Robert G. Sproul

SIO

WHOI

29 May– 21 June 2003

Barbados, Aruba, Cayman Islands, Colombia, Cuba, Honduras and Mexico Baja California, Pacific Ocean to Punta Baja

NOAA/ NMFS

1 July– 9 Dec 2003

D.S. Jordan NOAA & Mcarthur II

Observe the abundance of larvae of Chthmalus sp. and Pollicipes polymerus and the hydrography and circulation between San Diego, Ca. and La Salina, BC Annual marine Pacific mammal Ocean research on Stenella (Dolphin) Population Abundance Monitoring (SPAM) survey I territorial waters

DAN 01410 06/06/03

DAN 01964 07/29/03

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Document 5.6 (cont.) Vessel’s name

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Explorer Of The Seas

Royal RSMAS / Caribbean UoM Cruise Lines SIO SIO

Roger Revelle

Institute

Robert C. Seamans

SEA

SEA

New Horizon

SIO

SIO

New Horizon

SIO

SIO

Veritas Vantage

Eidesvik A/S

Veritas DGC, Sener & Mexican Navy

Dates 5 Aug 2003– 5 Aug 2004 25 Sept– 15 Oct 2003

Research description

Supply long running and detailed data sets Test Survey equipment in Mexican waters and collect profile of scientific data to add existing archives 16 Oct To teach 2003– oceanography 12 Jan and analysis 2004 techniques to university students 9 Nov– Contributions 3 Dec taxa-specify 2003 to the productivity – development of biomarcadores 8–22 Dec Quantify the 2003 effect of the cold seep source on the chemical signature preserved by barite in the marine sediments. 15 Dec 3D Seismic 2003– Survey in 15 Dec Alaminos 2004 Canyon

Research sites

Approval

Atlantic Ocean and Caribbean Sea Mexican EEZ Boundary

DAN 02018 08/4/03 DAN 02105 08/12/03

La Paz BCS, DAN 02462 Isla Socorro, 09/26/03 Puerto Vallarta Pacific Coast

DAN 02861 11/07/03

San Clemente Basin

DAN 03048 11/24/03

Gulf of DAN 03230 Mexico 12/18/03 (Alaminos Canyon Area of U.S. Gulf of Mexico and Extending into The Waters of Mexico)

Marine Scientific Research in Mexico

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Research description

Research sites

Approval

Endeavor

NSF

UW

11 Jan– 4 Feb 2004

All of Mexican EEZ

Cancelled

Robert G. Sproul

SIO

SIO

1 Mar– 17 Nov 2004

Maurice Ewing

LDEO

UTIG

Roger Revelle

SIO

SIO

2 Mar– 5 Apr 2004 8 Mar– 18 May 2004

Gus-D

Frank HMS Donahue

To study the role of the ocean in the intensification of hurricanes. The vessel would only retrieve the floating instruments. Establish the proportions and frequencies of blue whales (Balaenoptera musculus) and to determine their submarine behavior Seismic study of Chicxulub Crater Margins: rupture of continental Lithosphere and Birth of an Ocean in the Gulf of California” Retrace the expedition of made en 1940 and survey invertebrate fauna in Sea of Cortes and other sites.

28 Mar– 20 May 2004

West Coast DAN 00570 of Baja 03/01/04 California & Gulf of California

Progreso (Merida)

Denied by Mexico

Gulf of California

DAN 00383 2/13/04

Sea of Cortez, Islas; Cedros, Magdalena, Santa margarita, Espiritu Santo, San Jose, Coronado, San Pedro Martir, etc.

Mexican counter-part processed the permit

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Dates

Research description

Research sites

Approval

Jefferson

NOAA

NOAA

18 Apr– 18 May 2004

Tampico and Altamira, Mexico

DAN 00961 04/06/04

New Horizon

SIO

WHOI

19 May– 5 Jun 2004

Baja California Norte, Pacific Ocean to Punta Baja

DAN 01496 05/25/04

New Horizon

SIO

OSU

6–22 July 2004

Joint hydrographic survey to provide current hydrographic data to nautical charts of the area To Observe the abundance of larvae of Chthmalus sp. and Pollicipes polymerus and the hydrography and circulation between the area of San Diego, Ca. and La Salina, BC Comparative Study of Alkenone Production and Productivity in Contrasting Surface Water Environments in the North Pacific Ocean Supply long running and detailed data sets Annual marine mammal research on Stenella (Dolphin) Population Abundance Monitoring (SPAM) survey I territorial waters. (COSTA)

Guaymas Basin and Gulf of California

DAN 01499 07/06/04

Atlantic Ocean and Caribbean Sea Pacific Ocean

DAN 02505 08/25/04

Explorer Of The Seas

Royal RSMAS/ Caribbean UoM Cruise Lines David Starr NOAA USDOC/ Jordan NOAA/ USNMFS

5 Aug 2004– 5 Aug 2005 20 Aug– 10 Dec 2004

Cancelled with Note 12887/15/04

Marine Scientific Research in Mexico

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Dates

Robert C. Seamans

SEA

SEA

Endeavor

NSF

UW

19 Aug– 30 Dec 2004 4–26 Nov 2004

Point Sur

NSF

Naval Post Graduate School

New Horizon

SIO

OSU

Maurice Ewing

LDEO

UTIG

New Horizon

SIO

OSU

Robert G. Sproul

SIO

Old Dominion University

Robert G. Sproul

SIO

SIO

Research description

Oceanographic training cruise S-195–6 To study the role of the ocean in the intensification of hurricanes. The vessel would only retrieve the floating instruments. 11–22 Nov Measures of 2004 streams at entry of Gulf of California 1–15 Dec Quantify the 2004 effect of the cold seep source on the chemical signature preserved by barite in the marine sediments. 5 Jan– Seismic study 15 Feb of Chicxulub 2005 Crater 25 Jan– Comparative 12 Feb Study of 2005 Alkenone Production and Productivity 10 Mar– Oceanographic 17 Apr research on 2005 asymmetric circulation in wind-driven bays 3–25 “Vocalizations May 2005 and marine habitat of baleen and beaked whales”

Research sites

Approval

La Paz, BCS, Puerto Vallarta All of Mexican EEZ

DAN 03088 10/18/04

Gulf of California

DAN 03260 11/10/04

San Clemente Basin

DAN 03474 11/30/04

Progreso (Merida)

DAN 03719 12/23/05

Guaymas Basin and Gulf of California

DAN 00239 01/25/05

Cancelled w/ Note 2344 10/26/04

Bahia DAN 00808 Concepcion, 03/08/05 Baja California Sur West Coast DAN 01342 of The Baja 05/06/05 Peninsula and the Sea of Cortez

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Pelican

State of University of 6-Jun-05 Louisiana Louisiana

New Horizon

SIO

Roger Revelle

U.S. Navy SIO

5 Oct– 10 Oct 2005

New Horizon

SIO

LDEO

6 Oct– 31 Oct 2005

Robert C. Seamans

SEA

SEA

19 Oct– 30 Dec 2005

OSU

Dates

21-Jul-05

Research description

Research sites

Survey of Gulf Campeche of Mexico deep Banks phase bank macroalgae and macrocrustaceans Comparative Guaymas Study of Basin and Alkenone Gulf of Production and California Productivity in Contrasting Surface Water Environments in the North Pacific Ocean “Geophysical Baja and GeoCalifornia’s chemical coast and research of Guadalupe the submarine Island San Quentin Volcanic field and the Guadalupe landslide, Baja California borderland.” Upper-Mantle Gulf of Structure California Beneath the Gulf of California. To record earthquakes on oceanbottom seismic instruments within the Golf of California. Oceanographic La Paz, training cruise BCS, Puerto S-201–2 Vallarta

Approval DAN 01696 06/03/05

DAN 02190 07/21/05

DAN 03019 10/04/05

DAN 03021 10/04/05

DAN 03208 10/17/05

Marine Scientific Research in Mexico

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Vessel’s owner

Institute

Dates

Research description

Research sites

Approval

Usns SIO Sioux/R/P Flip

SIO

31 Oct 2005– 30 Dec 2005

“Vocalizations and marine habitat of baleen and beaked whales”

DAN 03234 10/18/05

Robert G. Sproul

SIO

SIO

1–20 Feb 2006

West Coast of the Baja California Peninsula & the Sea of Cortez Gulf of California

Gordon Gunter

NOAA

NOAA Fisheries, SFSC

Cozumel and Quintana Roo

DAN 00978 03/14/06

New Horizon

SIO

University of Rhode Island

Gulf of California

DAN 01906 06/03/06

Pacific Ocean

DAN 02639 07/28/06

D.S. Jordan NOAA & Mc Arthur Ii

NOAA/ NMFS

Enter the Gulf of California to recover instruments deployed on the seafloor for the marine mammal research 9 Mar– Larval Fish 10 Apr and Physical 2006 Oceanography Survey along of the Mesoamerican Reef System 3–30 June Study of 2006 Physiologic limits to the vertical migration of pelagic jumbo squid, Dosidicusgigas within Gulf of California 28 July– Annual marine 31 Dec mammal 2006 research on Stenella (Dolphin) Population Abundance Monitoring (SPAM) survey I territorial waters

DAN 00415 01/27/06

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Document 5.6 (cont.) Vessel’s name

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Institute

Dates

New Horizon

SIO

LDEO

1–31 Oct 2006

Outer Limits Robert C. Seamans Gordon Gunter

Plan B

New Horizon

Research description

Upper-Mantle Structure Beneath the Gulf of California. This project is designed to record earthquakes on oceanbottom seismic instruments within the Gulf of California. NMFS NOAA/ 16–31 Oct A collaborative NMFS 2006 abalone survey between INP and NMFS SEA SEA 19 Oct– Oceanographic 30 Dec training cruise 2006 S-207–8 NOAA NOAA 9 Jan– Larval Fisheries, 5 Feb recruitment SFSC 2007 and Physical Oceanographic survey along the Mesoamerican Reef System Theodore Texas A&M 29 May– MultiW. Waitt 14 July disciplinary 2007 oceanographic research in deep zones of the Campeche Bank Coral reefs and nesting sea birds. SIO UABCS 26 Apr– Study of the 30 June faults onshore 2007 and offshore and reoccupy a GPS network in Baja California Sur

Research sites

Approval

Gulf of California

DAN 03388 09/30/06

Baja California

DAN 03405 10/2/06

La Paz, DAN 03719 BCS, Puerto 10/24/06 Vallarta Yucatan DAN 00050 01/11/07

Campeche and Yucatan

Bahia de San Jose del Cabo, Bahia las Palmas, Bahia Los Muertos y Bahia la Paz

Withdrawn by U.S. scientist due to an extreme process time frame.

Marine Scientific Research in Mexico

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Institute

Dates

New Horizon

SIO

University of Rhode Island

15 May– 30 Aug 2007

Wecoma

OSU

UW

Atlantis

WHOI

WHOI

Shogun

Ted A. Stanford Tun, University Frank Lo Preste & Norman Kagawa SEA SEA

Robert C. Seamans

Research description

Research sites

Approval

Study of Physiologic limits to the vertical migration of pelagic jumbo squid, Dosidicus gigas 1–14 Carbon cycle June study in the 2007 coastal region. This cruise will be the first and they plan to do biennial cruises along the west coast of North America 28–30 Notification June 2007 of equipment testing – no research activities involved. 1 Aug Research and 2007– collection of 31 Jan yellowfin and 2008 bluefin tuna.

Gulf of California

DAN 01349 05/25/07

Mexican EEZ

DAN 01375 05/28/07

Mexican EEZ

DAN 01774 06/28/07

Baja California

Rescheduled for 06/08

11 Oct– 20 Dec 2007

Isla Guadalupe & Isla Socorro

DAN 03009 10/11/07

Training cruise on oceanography and oceanographic sampling techniques to college undergraduate students.

398

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Document 5.6 (cont.) Vessel’s name

Vessel’s owner

Institute

Dates

Atlantis

WHOI

Rutgers University

18 Oct– 8 Nov 2007

Ronald H. NOAA Brown

UW

Western Flyer

MBARI

MBARI

Zephyr

MBARI

MBARI

Pacific Storm

OSU

OSU

Research description

Study of the microbiology of the hydrothermal vents 3–24 Dec Global repeat 2007 hydrograph program: Woce Section P18 31 Jan– Multi28 May disciplinary 2008 research expedition to the Gulf of California, divided in seven legs. 8 Feb– Simultaneous 30 Mar research to 2008 conduct near-bottom multi-beam mapping using an autonomous underwater vehicle to survey dive sites for the R/V Western Flyer 18 Apr– Tracking 30 June fine-scale 2008 movements and diving behavior of sperm whales in the Gulf of California and relocation and assessment of satellite tagged blue whales.

Research sites

Approval

Guaymas & Gulf of California

DAN 03070 10/22/07

Mexican EEZ

DAN 03579 12/06/07

Gulf of California

DAN 00381 01/30/08

Gulf of California

DAN 00415 01/29/08

Gulf of California, Baja California, Sonora & Sinaloa

DAN 00995 03/12/08

Marine Scientific Research in Mexico

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Institute

Dates

Research description

Research sites

Approval

Atlantis

WHOI

SIO

24 Apr– 8 June 2008

Gulf of California

DAN 01529 04/23/08

New Horizon

SIO

SIO

13 June– 13 July 2008

New Horizon

SIO

OSU

10 July– 8 Aug 2008

Determine the geological history of the area currently covered by the Gulf of California, the time and distribution of different types of intrusions and magmatic eruptions. Study the effects of iron and light colimitation on phytoplankton communities in the deep chlorophyll maximum of stratified oceanic regions. Study of the Nitrogen fixation, to identify the specific organisms responsible for the N2 fixation and determine the carbon production rate for each identified N2–fixing organism

La Paz, DAN 02217 Gulf of 06/12/08 California, Manzanillo

La Paz

DAN 02552 07/10/08

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Dates

Research description

Ronald H. USGS Brown

USDOI/ USGS/ WHFS

David Starr NOAA Jordan & Cf0191ky

NMFS

Atlantis

WHOI

SIO

Robert C. Seamans

SEA

SEA

15–28 Sept Bathymetric 2008 survey to identify and map underwater features such as geological faults and landslides to assist in earthquake and tsunami assessments for islands. 15 Sept– Develop the 4 Dec ability to 2008 monitor trends in abundance of Vaquita using autonomous acoustic monitoring equipment. 13 Oct– Increase the 4 Nov understanding 2008 of microbial communities at the deep sea vents in Guyams Basin. 14 Oct– Training 26 Nov cruise to teach 2008 microorganism and oceanographic sampling techniques to college undergrad. Students.

Research sites

Approval

EEZ

Denied

Upper DAN 03273 Gulf of 09/08/08 California, San Felipe Bay, Colorado River Delta Biosphere Guaymas Basin and Gulf of California

DAN 03731 10/16/08

Isla Guadalupe & Isla Socorro

DAN 03732 10/17/08

Marine Scientific Research in Mexico

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Institute

Dates

Research description

Research sites

Atlantis

WHOI

Cape Hatteras

NSF

Melville

Office of Naval Research

Atlantis

WHOI

University of 9–29 Nov Investigate the Guaymas Delaware 2008 protozoan and Basin viral diversity at deep-sea microorganism of the Guaymas Basin & determine what environmental factors effect their distribution and abundance. UW 10–24 Nov Oceanographic EEZ 2008 cruise to recover driftins scientific instruments, to understand how the ocean and hurricane interact and thus produce better predictions of hurricanes. WHOI 1–24 Dec Magmatic sill Guaymas 2008 intrusions in basin Guayman Basin. Implications for the carbon’s thermogenic flow in a sedimentary basin in the oceanic entertainment UNC2–18 Dec Investigate the Guaymas Chapel Hill 2008 microbiology Basin, Gulf of the of California hydrothermal sediments at Guaymas Basin, with respect to the microorganism that catalyze the geochemical cycles of sulfur and methane.

Approval DAN 04053 & 04135 12/14/08

Cancelled by Scientist

DAN 03890 11/03/08

DAN 04192 11/28/08

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Vessel’s owner

Institute

Dates

Research description

Gordon Gunter

NOAA

NOAA Fisheries, SFSC

23 Mar– 1 June 2009

Cape Hatteras

Duke WSU University

Study on Gulf of ichthyoplankton Mexico and Thunnus thynnuss on the Golf of Mexico (Mexican and USA) Oceanographic research

New Horizon

SIO

SIO

Mcarthur

NOAA

NMFS

1 Oct– 9 Dec 2009

New Horizon

SIO

USC

10 Oct– 10 Nov 2009

11 Oct– 30 Nov 2009 1–13 Oct 2009

Determine the composition and volcanic history of the extended and submerged continental crust Ecosystem survey of Delphinus species, to provide population information on Delphinus delphis and D. copensis stocks. Off the coast of California and Baja California The focus of this project is on pathways of nitrogen removal from the subosic regions of the Ocean

Research sites

Approval DAN 00902 03/27/09

DAN 02933 10/05/09

Central and DAN 02894 Southern 09/30/09 Gulf of California

Gulf of Mexico

DAN 02899 10/01/09 & DAN 0303210/15/2009

Baja California & BCS

DAN 02952 10/06/09

Marine Scientific Research in Mexico

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Institute

Dates

Atlantis

WHOI

WHOI

18 Oct– 2 Nov 2009

Atlantis

WHOI

PSU

Atlantis

WHOI

UNCChapel Hill

Research description

Research sites

Image the Guaymas seafloor of basin Guaymas Basin for evidence of seeping or venting of carbon-rich fluids associated with magmatic sill intrusion into organic-rich sediments 7–17 Nov Study of the Guaymas 2009 microbial basin & ecology of Gulf of deep-sea California hydrothermal vents 22 Nov– Study of how Guaymas 6 Dec microorganism basin & 2009 use hydrocarbon Gulf of and petroleum California compounds that originate in the deep subsurface

Approval

DAN 03255 11/05/09

DAN 03342 11/19/09

404 BCS CalTech GIT HBOI HMS LDEO MBARI NMFS NOAA NSF OMAO OSU PSU RSMAS SEA SFSC SIO UABCS UH UNH UoM USC USDOI USGS USNMF UTIG UW WHFS WHOI WSU

Chapter Five: Appendix Five Baja California Sur California Institute of Technology Georgia Institute of Technology Harbor Branch Oceanographic Institute Hopkins Marine Station – Stanford University Lamont-Doherty Earth Observatory Monterey Bay Aquarium Research Institute National Marine Fisheries Service National Ocean and Atmospheric Administration National Science Foundation Office of Marine and Aviation Operations Oregon State University Portland State University Rosenthiel School of Marine and Atmospheric Science Sea Education Association Southeast Fisheries Science Center Scripps Institute of Oceanography Universidad Autonoma de Baja California Sur University of Hawaii University of New Hampshire University of Miami University of Southern California United States Department of the Interior United States Geological Survey United States Navy Memorial Foundation University of Texas Institute for Geophysics University of Washington WFO Hydrologic Forecast System Woods Hole Oceanographic Institution Washington State University

Chapter Six Mexico’s Islands: Mirage or Reality? 1. Introduction: Discovery of Mexico and Its Islands by Spain in the 16th Century Mexico is a country of islands. Endowed by nature with four ocean basins that surround its vast and varied coastlines,1 Mexico possesses over two hundred islands in the Gulf of Mexico, the Caribbean Sea, the Gulf of California and the Pacific Ocean.2 The importance of Mexico’s islands has attracted attention from historical, diplomatic and scientific angles. Unfortunately, the significance that these islands are called upon to play in the economic and commercial development of that country, and in the future of that nation, has been seriously neglected. From a historical viewpoint, the modern history of this country may be traced back to two islands in the Caribbean – Cozumel and Isla Mujeres – and a few more in the Gulf of Mexico – Isla del Carmen, Sacrificios, Isla Verde and San Juan de Ulúa. It was in the latter group of islands that Spanish explorers

1

2

The length of Mexico’s littorals has been estimated to total 10,741 km. (5,799 n.m.); corresponding 7,919 km. to the Pacific; 2,821.23 km. (including 180.40 km. of islands to the Gulf of Mexico and the Caribbean) for a total in the Atlantic coast of 2,821.23 km., taken from Eduardo Solís Guillén. Derecho Oceánico (Ocean Law). Porrúa, Mexico (1987) at 255. As of today (2011), Mexico has not produced a definite number of its islands, their land area, the length of their coastlines or even their precise geographical location. In the past, federal agencies of the Mexican government involved with islands conducted surveys and reported a wide range of contradictory and incomplete results. For example, Gobernación in its Inventory (1981) reports 239 islands, 23 cays and 20 reefs; Marina in its Catalogue (1979) omits giving the total number of islands simply mentioning that its catalogue is based on the “Catalogue of Islands” published by Relaciones Exteriores in 1900; Programación y Presupuesto in its Provisional Catalogue (1981) only mentions that there are “3,067 components (sic) of Mexico’s insular territory;” and in the joint and latest catalogue published by Gobernación and Marina (1987), prepared “to respond to the needs on information, consultation and dissemination of the vast and inexplored Mexican insular territory,” the possible number of islands may range between 415 and 586 depending on how the language is interpreted. For the complete cites of these catalogues see supra note 133 in Chapter One of this book.

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Francisco Hernández de Córdova,3 Juan de Grijalva4 and Hernán Cortés launched three major expeditions,5 initiating the explorations and the evangelization of the indigenous peoples and the resulting Mestizaje, who forged a new race in the Mesoamerica of 1517–1519.6 As an Spanish colony for three hundred years, Mexico became an independent nation in 1821. The modern history of Mexico, as asserted by Moreno Collado and Reyes Vassade, started in the islands.7 From a geographical perspective, Mexico’s establishment of its exclusive economic zone (EEZ) created a new “marine space” covering 2,644,147.50 km.² (771,083.94 n.m.²), an area much larger than its own territorial land base.8 Because of the use of islands as basepoints for the EEZ, Cayo Arenas and Arrecife Alacrán in the Gulf of Mexico, and Clarión and Guadalupein the Pacific Ocean,9 as sanctioned by international law,10 Mexico was able to increase the size of its EEZ by one third. 3

4

5

6

7

8

9

10

Hernández de Córdova is credited with the “discovery” of Mexico, both islands and Cabo Catoche in the Yucatán peninsula, and the Bay of Campeche in 1517, as a part of continental Mexico. See Jorge A. Vargas. U.S. Marine Scientific Research Activities Offshore Mexico. 24 Denver J. of Int’l Law & Policy (Fall 1995) at 8–9. In 1518, Grijalva landed in Cozumel and Isla Mujeres in the Mexican Caribbean and went on to Laguna de Términos in Campeche and San Juan de Ulúa in the tropical jungles of Veracruz, in the Gulf of Mexico. Ibid. Following the instructions of King Charles V of Spain, Diego Velásquez, governor of Cuba, authorized and financed these three major expeditions with the purpose of advancing Spain’s political, territorial and religious interests in the world. See Patricia de Fuentes. The Conquistadors (1985), The Spanish Conquerors at 69. Jorge Moreno Collado and Martín Reyes Vayssade, Introduction. Cartografía Histórica de las Islas Mexicanas (Historical Cartography of the Mexican Islands). Gobernación (1992) at 13. Ibid. These authors add: “[Mexico] has forgotten them . . . The Mexican people have not yet developed what may be called their insular conscience.” The EEZ area does not include the marine belt of Mexico’s 12 n.m. territorial sea. Combining both marine spaces, Mexico established a marine area covering 2,882,754 km.² (840,698 n.m.²), according to the figures provided by Solis Guillén, Ocean Law, supra note 1 at 256. Mexico’s land base area covers 1,964,375 km.² (758,449 miles²), Atlas of the World. National Geographic (8th ed., 2010) at 129. For a discussion of Mexico’s delimitation process of its EEZ, see supra notes 118–134 in Chapter Four of this book, and the accompanying text. At that time, the most advanced and latest work of the Third U.N. Conference on the Law of the Sea regarding maritime delimitations, including the use of islands as base points for delimitation purposes, was reflected in the Informal Single Negotiating Text (ISNT), U.N. Doc. A/CONF.62/WP.8/Part II (1975). Both the U.S. and Mexico agreed to use the pertinent articles in the ISNT as guidelines for establishing the 200 n.m. maritime boundary between both countries. The ICNT was recognized by these countries as the “implicit agreement” reached until then by the international community on the use of islands for delimitation purposes, as updated by the Revised Single Negotiating Text (RSNT), produced on May 7, 1976. See

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Pursuant to the Guano Act of 1856,11 citizens of the United States were authorized “to discover and peacefully occupy, at the discretion of the President, any island, rock or key, not within the lawful jurisdiction of any other government and not occupied by the citizens of any other government,” when these islands contained guano deposits likely to be exploited commercially. This statute prescribed that Americans in this situation had to register guano islands with the U.S. Department of State for purposes of controlling and protecting the exploitation of those deposits. The Guano Act moved Americans to explore the oceans in search for islands in the Gulf of Mexico, the Caribbean and the Pacific Ocean, where Mexico possessed remote islands with guano deposits.12 Pursuant to this Act, Cayo Arenas and Arrecife Alacrán, Mexican islands in the Gulf of Mexico, offshore the Yucatan peninsula, were temporarily occupied by U.S. nationals engaged in the commercial exploitation of the guano deposits.13 The presence of Americans on these islands enabled the U.S. government to stake a claim over the guano deposits found in said islands “as appertaining to the United States.”14 Diplomatic negotiations became necessary to

11

12

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Section 3. Decree establishing the Outer Boundaries of the EEZ, Chapter Four in this book, supra notes 48–77, and the accompanying text. An Act to Authorize Protection to be Given to Citizens of the U.S. who may Discover Deposits of Guano, August 18, 1856, § 6, 11 Stat. 120. The eight sections (§§ 1411–1419) of this Act address: Guano districts claim by the U.S.; notice of discovery and proofs; completion of proof; exclusive privileges of discoverer; restrictions on exportation; regulation of trade; criminal jurisdiction; employment of land and naval forces in protection of rights; and right to abandon islands. See the case Jones v. United States, 137 U.S. 202, Nov. 24, 1890, 11 S. Ct. 80. See Jimmy M. Skaggs. The Great Guano Rush. Entrepreneurs and American Overseas Expansion. New York (1994), Chap. 6: Caribbean Appurtenances, 1856–1865, at 91–114 and 121–125. In the delimitation of Mexico’s 200 n.m. in the Gulf of Mexico, these islands played a most important role in allowing Mexico to “push” the outer boundary of that zone closer to abut with the prolongation of the U.S. submarine continental shelf, in the so-called “Western Gap,” thus giving Mexico direct access to the transfrontier oil and gas deposit located in the deepest area of the gulf. This maritime delimitation was formally agreed by the United States and Mexico in the Treaty on the Delimitation of the Continental Shelf in the Western Gulf of Mexico beyond 200 nautical miles done in Washington, D.C. on June 9, 2000. See Chapter Four in this book, supra notes 121–126 regarding the use of Arrecife Alacrán and Cayo Arenas in delimiting Mexico’s EEZ in the Gulf of Mexico. The Guano Act, Sec. 1411, read: “Whenever any citizen of the United States discovers a deposit of guano on any island, rock, or key, not within the lawful jurisdiction of any other government, and not occupied by the citizens of any other government, and takes peaceable possession thereof, and occupies the same, such island, rock, or key may, at the discretion of the President, be considered as appertaining to the United States.” (Emphasis added ).

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settle the disputed ownership of these islands.15 In his 1895 presidential address, President Díaz reported to the nation: The negotiations between Mexico and the United States have been completed in a satisfactory manner. Initiated in 1886, due to the determination of that government to subject to its dominion the islands of Arenas, Pérez, Chica, Pájaros, Cayo Arenas and Triángulos del Oeste, situated in the Gulf of Mexico in front of the peninsula of Yucatán, where some citizens of the United States had made guano discoveries. After Mexico submitted conclusive evidence that the expressed islands are an integral part of its territory, the Government of Washington, proceeding with all justification, declared that said islands shall not be considered in the future under the ownership (propiedad ) of the United States. The respective opinion was circulated by the [U.S.] Department of the Treasury on November 21 last.16

Had those islands not been recognized by the United States as belonging to Mexico, or had the U.S. negotiators not been convinced that “the Mexican island in question in Arrecife Alacrán was capable of meeting the island test”17 when the respective maritime delimitations between these two countries took place in 1976, the resulting maritime boundaries may have been vastly different.18 The Achipiélago del Norte – or Northern Archipelago known in the United States as the California Channel Islands19 – was lost by Mexico as prescribed 15

16

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See the Presidential State of the Union Address by Mexican President Porfirio Díaz (Informe Presidencial of September 10, 1902), Boletín de la Sociedad de Geografía y Estadística (No. X, June 1903), México at 175–199. See also Miguel González Avelar. El Territorio Insular como Frontera. (The Insular Territory as a Frontier). 9 Frontera Norte, No. 17, Jan.–June 1997 at 161–169. Presidential Address of April 1, 1895, Rodríguez, Ricardo. Historia Auténtica de la Administración del General Porfirio Díaz (Authentic History of the Porfirio Díaz Administration). See also SRE, Cayos Arenas y Otras Islas Guaneras en los Mares de Campeche y Yucatán (1895) México; and “Islas,” Enciclopedia de México, Vol. VII (México, 1977) at 356. Jorge A. Vargas. Mexico’s Legal Regime over Its Marine Spaces. 26 Inter-American Law Review (Winter 1994–85), “Section D. The Use of Islands by Mexico to Delimit Its 200 mile EEZ” at 207–215, 189–242. In the alternative, Mexico’s EEZ outer boundary would have been drawn south of its present location, since the width of the EEZ in that case would have been measured from the coastline of Yucatán rather than from Arrecife Alacrán, located some seventy-five miles north of the port of Progreso on Mexico’s continental land mass. Evidently, when the U.S. and Mexico negotiated this marine boundary in the Gulf of Mexico, these Mexican islands must have been placed under the strictest legal and technical scrutiny by the United States to be certain that they truly met the criteria of Article 132 of the Informal Single Negotiating Text. The use of these islands was one of the objections raised by Dr. Hollis D. Hedberg at the U.S. Senate Hearings (Senate Exec. Report No. 96–49, June 12, 1980) to oppose the Maritime Boundary Treaty of May 4, 1978. For a discussion of this matter, see Section C. Maritime Delimitation Negotiations with the United States in Chapter Four of this book, supra notes 135–151 and the accompanying text. See also infra notes 151–153 and the accompanying texts. For a brief discussion of these islands, see in this chapter: A Wrong Interpretation of the 1848 Treaty and the California Channel Islands, infra notes 265–282 and the accompanying texts.

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in Article V of the Treaty of Guadalupe Hidalgo of 1848.20 Jointly with the territories Mexico lost within its continental base, the islands of Anacapa, San Clemente, San Miguel, Santa Barbara, Santa Cruz, Santa Rosa, San Nicolás and Santa Catalina – situated in the Pacific Ocean and commonly known today as the California Channel Islands – were included as part of the territories ceded by Mexico to the United States pursuant to Article V of said Treaty. Since this treaty made no reference to those islands, the question as to whether Mexico had any rights over the eight California Channel Islands was raised in Mexico during the administrations of Porfirio Díaz in 1894 and Manuel Avila Camacho in 1944.21 To put an end to these concerns, in 1970 Antonio Carrillo Flores, then Secretary of Foreign Affairs, made the following official statement: As of today, the situation continues to be the same: the Government of Mexico neither considers to have new elements to rectify the policy followed without an exception by all the previous administrations, during more than one hundred years, nor does it believe that it would serve the public interest to unofficially (oficiosamente) make a renouncement, that no one has asked us for, regarding the rights that some Mexicans consider that our country has over said islands.22

Mexico’s diplomatic incident with France involved Isla de la Pasión, known as Clipperton Island, which has been under France’s sovereignty since 1934.23 This island, called Médano or Médanos by the Spanish navigator Alvaro de Saavedra y Cerón in November of 1527, was discovered by Fernando de Magallanes in 1521 and named after the English pirate John Clipperton.24 It is located at 109° West Longitude and 10° North Latitude in the Pacific Ocean, some 20

21

22

23

24

Regarding this Treaty, and the resulting international boundary between both countries, see supra notes 106–112 in Chapter One of this book and the accompanying texts. For a discussion of the historical and legal questions involved in this case, see Jorge A. Vargas. El Archipiélago del Norte ¿Territorio de México o de Estados Unidos? (The Northern Archipelago. Territory of Mexico or of the United States). Fondo de Cultura Económica, México (1993). See also Fernando Meraz. Otro Despojo de Estados Unidos. Boletín de la Soc. Mexicana de Geografía y Estadística, Tomo CXXXIII, Vol. II, México (1983) at 97–110. Declaration by Antonio Carrillo Flores, Secretary of Foreign Affairs, regarding certain islands of the Pacific Ocean off the coasts of California [U.S.A.], made on April 1, 1970. Memoria de la Secretaría de Relaciones Exteriores, From Sept. 1, 1969 to August 31, 1970. Tlatelolco, México (1970) at 188–189. Jorge A. Vargas. Isla de la Pasión, Terminología sobre Derecho del Mar (Law of the Sea Terminology), Ceestem, México (1979) at 156–161. John Clipperton was an English pirate who led a mutiny against William Dampier in 1704; he, and other 21 mutineers, used this small atoll as their hideout, according to Encyclopedia Americana (1979), Vol. 7 at 86. See also Antonio Gómez Robledo. México y el Arbitraje Internacional (Mexico and International Arbitration). Part II: La Isla de la Pasión, Porrúa, México (1965) at 108–110. Clipperton was a pirate who used the island to attack and destroy Spanish ships in that part of the Pacific Ocean. See also Isla de la Pasión llamada Clipperton (Isla de la Pasion known as Clipperton). SRE, México (1909) at 3, 36–37.

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600 n.m. from Mexico’s coastline and it has an extension of 3.5 miles in length and 2.5 in width. Towards the end of the 19th century, a dispute arose between Mexico and France over this island’s sovereignty. Both countries signed an agreement in Mexico City on March 2, 1909 to settle the dispute through arbitration by Victor Emmanuel III, King of Italy.25 The final arbitral award was rendered in Rome, Italy, twenty two years later (i.e., January 28, 1931), sentencing that “that the sovereignty over Clipperton Island belongs to France, dating from November 17, 1858.”26 The award came as a surprise to Mexico.27 Given that public opinion in that country considered the award unfair and biased in favor of France, the Secretariat of Foreign Affairs (SRE) appointed a commission formed by a panel of distinguished Mexicans to determine whether Mexico should comply or not with said award. The commission advised that since the arbiter did not incur in any serious legal defects or vices invalidating the award,28 Mexico should comply with it.29 According to its tradition of respecting the international law principle of Pacta sunt servanda, Mexico fully complied with the arbitral award.30

25

26

27

28

29

30

Luis G. Zorrilla. Los Casos de Mexico en el Arbitraje Internacional (Mexico’s Cases before International Arbitration). México (1981) at 145–162. See also Gómez Robledo. Isla de la Pasión, México y el Arbitraje Internacional. México (1965). Arbitral Award on the Subject of the Difference relative to the Sovereignty over Clipperton Island, AJIL (April 1932) at 390–394. SRE. Isla de la Pasión llamada Clipperton. Secretaría de Relaciones Exteriores (Publicación Oficial). Imp. García Cubas, México (1909). For a brief discussion of this arbitral case, see in this chapter: “Clipperton Island and the Dispute between Mexico and France,” infra notes 249–264 and the accompanying texts. The majority of the members of the Commission were of the opinion that “arbitral awards should be respected and fully complied with, provided they are not affected by any invalidating vices, namely: Excèss de pouvoir by the arbiter; fully proven prevaricato (collusion); and discovery of evidence that may have not been known prior to the award by any of the parties, including the Arbiter.” See Gómez Robledo, supra note 28 at 155; see also Zorrilla, supra note 29 at 162. See Zorrilla, supra note 29 at 162. Since the Constitutional Assembly of 1917 included the Isla de la Pasión in Article 42 as a component part of Mexico’s territory, the Political Constitution had to be amended before Mexico was to deliver the possession of this island to France. See Chapter One in this book, Section E. Article 42 of the Components Parts of the Territory, supra note 103 et seq. It should be recalled that, at the time when the arbitral award of Isla de la Pasión was rendered, the United States was maintaining its refusal to comply with the award rendered in favor of Mexico on June 15, 1911 by an Arbitral Mixed Commission regarding the Chamizal Case. It was not until June 30, 1962, when the U.S. finally recognized the award in a Joint Declaration by the Presidents of Mexico and the United States. After signing a special convention on July 18, 1963, President A. López Mateos symbolically received 176.92 hectares from President L.B. Johnson in the border area of Ciudad Juárez and El Paso, Texas. See Jorge A. Vargas. El Caso del Chamizal (The Chamizal Case). México (1963) at 111–112.

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Today, France’s Clipperton Island is surrounded by a 200 n.m. EEZ in the North Pacific Ocean31 and the submarine area around it is known to have deposits of polymetallic nodules in the Clipperton Trench.32 From a scientific viewpoint, the Mexican islands, particularly those in the Gulf of California, have attracted the interest of the California Academy of Sciences33 since the 19th century and continue to receive the attention of scientists from all over the world, including the United States. At the National Conference on the Conservation and Sustainable Development of the Islands of Mexico, held in Ensenada, B.C. in 2009, marine scientists and environmental experts formulated the “Ensenada Declaration,” asserting that: The Mexican islands are natural laboratories where it is possible to understand the trends and patterns of the biological evolution, as well as bio-geography laboratories where the processes of immigration, local extinction and invasion are clearly manifested since the islands constitute microcosms with clearly defined boundaries; ...... At the eighth session of the Conference of the Parties of the Convention on Biological Diversity, held at Curitiba, Brazil, in March of 2006, Mexico signed the “Working Program for the Conservation of Biodiversity on Islands.” 34 31

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34

Neither Mexico, nor the United States, filed a diplomatic protest when France established its 200 n.m. EEZ around Clipperton Island. However, some authors have criticized France for having established such a zone around Clipperton, questioning whether an isolated and uninhabited atoll in the Pacific Ocean, quite distant from that country, can be used to establish such a zone pursuant to the 1982 U.N. Convention on the Law of the Sea and customary international law. See Jon Van Dyke and Robert A. Brooks. Uninhabited Islands and their Impact upon the Ownership of Oceanic Resources (Boletín Mexicano de Derecho Comparado, Año XVI, No. 48 (Sept.-Dic. 1983) at 875–886. Although the arbitral award was rendered eighty years ago, from time to time Mexican journalists and even some international law academicians have proposed that Mexico should explore some avenues to see how that country may be able to regain its sovereignty over that island. See, for example, David Vega Vera. La Isla Clipperton: Un Caso Olvidado por los Juristas Mexicanos (Clipperton Island: A Forgotten Case by Mexican Jurists). Anuario Mexicano de Relaciones Internacionales (AMRI), Tomo I, 1a. Parte. ENEP-Acatlán, UNAM, México (1980) at 419–432. See Sections 1 and 2 in Chapter 5 of this book, titled “Marine Scientific Research in Mexico,” supra notes 64–76, describing the British and U.S. explorations in Mazatlán, Sinaloa, and in the Gulf of Mexico, dating back to the 1830’s and 1840’s. Declaración de Ensenada. National Conference on the Conservation and Sustainable Development of the Islands of Mexico, June 23–26, 2009, Ensenada, B.C., Mexico. The major goals of the Biodiversity Program on Islands are: 1. Conservation of insular biodiversity; 2. Sustainable use of it; 3. Address the threats to it; 4. Access and equity in the benefits resulting from insular genetic resources; and, 5. Increase in the financial capabilities for the implementation of the program. Ibid.

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Despite the relative importance Mexican islands have played in the country’s history, science and diplomacy, including the delimitation of its marine spaces with neighboring countries in 1976, it is difficult to understand why Mexico has not yet formulated a program to incorporate its islands as a component of its development plans. When one takes into account the potential of marine resources and economic activities present in Mexico’s islands, Mexican nationals are of the opinion that their country, contrary to all expectations, has not given islands the importance and recognition they truly deserve. As of today (2011), Mexican islands remain undeveloped, unexplored and ignored in the economic, industrial development, and foreign investment arenas. For decades, historians, environmentalists, scientists, entrepreneurs, foreign investors, and politicians have claimed that the federal government, which has held the majority of islands under its direct control since 1917 pursuant to Art. 48 of the Constitution, has forgotten the islands, maintaining them in a state of relative oblivion and abandonment.35 The lack of a modern legal framework that would regulate Mexico’s islands has been repeatedly identified as the most important question that must be addressed by Mexico to “re-initiate” the re-discovery and utilization of its own islands, known in that country as its “insular territory.”

2. The Bull Inter Caetera, the Principle of Uti Possidetis and Mexico At the end of the 15th century, Spain and Portugal became engaged in an open rivalry to discover a new maritime route to take them to the Indies and expand

35

Jorge Moreno Collado and Martin Reyes Vassade wrote: “The modern history of Mexico started in the islands . . . However, we have forgotten them . . . The Mexican people have not yet developed what may be called their ‘Insular conscience,’ ” Introducción, Cartografía Histórica de las Islas Mexicanas (Historical Cartography of the Mexican Islands), Secretaría de Gobernación (Segob), México (1992) at 13. See also Jorge A. Vargas. “Islas Mexicanas: Territorio Olvidado de México” (Mexican Islands: Mexico’s Forgotten Territory). Uno Más Uno, Aug. 26, 1980; “México, País Oceánico” (Mexico, Oceanic Country). Ibid., Feb. 23, 1981; “Nuestras Islas: Un Patrimonio Olvidado,” (Our Islands: A Forgotten Patrimony), Ib., Apr. 11, 1981. At the end of her book on “The Islands of Mexico,” Lic, Laura Ortiz Valdéz asserts: “The [Mexican] islands are found today in total abandonment . . . ; the figures regarding the number of islands . . . do not coincide, and this situation leads to confusion; . . . it is necessary for Mexico to define its insular policy; . . . Mexico should enact a Reglamentary Act (Ley Reglamentaria) of Arts. 42 and 48 of the Political Constitution.” El Régimen Jurídico de las Islas Mexicanas: Importancia y Problemática (The Legal Regime of Mexican Islands: Their Importance and Problems). UNAM, México (1994), passim.

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their trade. When Christopher Columbus36 discovered new lands situated in the western hemisphere in 1492,37 he fractured the precarious balance of power that existed at that time between these maritime powers. To restore law and order in a much larger but unknown ocean area, two measures were taken that became a part of the Ius gentium: first, the issuance of the papal bull Inter Caetera by Pope Alexander VI on May 4, 1493; and, second, the formulation of the principle of Uti possidetis. A. The Bull Inter Caetera of 1493 During his trip back to Spain, a storm forced Columbus to stop over in Lisbon where he personally narrated to John II, King of Portugal, the newly made discoveries. The information provided by Columbus allowed John II to lay claim to Columbus’ discoveries on the grounds that they came within the provisions of the Treaty of Alcáçovas of 1497. With that warning, Columbus was finally allowed to proceed to Spain. To avoid territorial disputes with Portugal, King Ferdinand and Queen Isabella of Spain sought the intervention of Pope Alexander VI, a Spaniard himself, to put an end to a possible dispute between Spain and Portugal. Eventually, Alexander VI issued the Inter Caetera edict that divided the Atlantic Ocean into eastern and western areas of maritime exploration, allocating to Spain the western area, which turned out to be the largest and most important one. The authoritative38 bull Inter Caetera conveyed upon the Spanish crown “all rights over all discovered and still to be discovered islands and continental territories beyond a line drawn from pole to pole 100 miles westwards of the Azores and Cape Verde islands.”39 The terms of this agreement were later formalized

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See Samuel E. Morrison. Admiral of the Ocean Sea. Boston (1942); Salvador de Madariaga. Christopher Columbus. New York (1949). Gonzalo Fernández de Oviedo. Historia General y Natural de las Indias. Madrid (1959). On October 12, 1492, Christopher Columbus discovered and took possession on behalf of King Ferdinand and Queen Isabella of Spain of the small island of Guanahani in the Bahamas, believing that he had discovered the coast of Asia. See Wilhelm G. Grewe. The Epochs of International Law. The Law of Nations in the Spanish Age (2000) at 233–237. The authority and legal meaning of this bull remains controversial up to the present day. The opponents of Spanish imperialism were led by King Francis I of France, Queen Elizabeth I of England, Hugo Grotius and John Milton who regarded it “as an expression of the medieval papal claim to dispose the non-Christian lands of the world. They therefore countered with arguments denying this claim.” See Grewe, Ibid., at 236. Ibid. at 233–234. In return, the Spanish crown had imposed on it “the feudal obligation to convert the inhabitants of the occupied lands to the Christian faith . . . and to educate them in good morals.” Id. The language of this bull is reproduced in John Norton Moore (Ed.) International and United States Documents on Oceans Law and Policy, Vol. 1 (1986) at 75–78.

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in the Treaty of Tordesillas on June 7, 1494, by which a demarcation line was fixed 370 miles westwards of the Cape of Verde Islands.40 This treaty constituted a modus vivendi between Spain and Portugal. Hence, the establishment of a delimitation boundary in the Atlantic Ocean between these two powers allowed for the peaceful continuation of maritime explorations both in the newly discovered lands, Africa, India and Portugal.41 According to the practice of States in the early 16th century, Spain and Portugal conducted maritime expeditions in search of “new lands” considered by them to be Terra nullius, i.e., territories that had no owner and were not under the control of a Christian nation.42 These were lands occupied by primitive peoples, not by “civilized nations,” that were legally apt for discovery and occupation, recognized then as two appropriate methods of acquisition of territory under international law.43 Spain and Portugal acquired vast territories in America, Africa and Asia by using these acquisition methods and by promising the Pope that they would convert the indigenous peoples found in those territories into the Christian Faith. For example, Christopher Columbus, in his letter to Luis de Santangel, the Treasurer to the King and Queen of Spain, who financed Columbus’ trip in 1492, wrote: Sir, On the thirty-third day after I departed from [Palos], I came to the Indian Sea, where I found many islands inhabited by men without number, all of which I took possession for our most fortunate king, with proclaiming heralds and flying standards, no one objecting. To the first of these I gave the name of the Blessed

40

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Grewe, supra note 41 at 234. The language of this Treaty is reproduced in John Norton Moore (Ed.), Ibid. at 79–100. For a historical and legal discussion of this treaty see Antonio Rumeu de Armas. El Tratado de Tordesillas, Madrid (1992). As time went by, the validity of this modus vivendi gradually eroded, challenged by Portugal and then by other nascent maritime powers such as France, England and The Netherlands that felt they were excluded by the papal distribution. Eventually, this led to the demise of the Hispano-Portuguese overseas dominance in the mid-17th century. For a discussion of this maritime progression, see Grewes, supra note 41 at 154 et seq. See also Pearce Higgins. International Law and the Outer World 1450–1648, Cambridge History of the British Empire, Vol. 1 (1929), Chap. 6. Other authors refer to terra nullius as a concept employed to designate “territory that was empty and therefore free for colonization,” see Joshua Castellino. Territorial Integrity and the “Right” to Self-Determination, 33 Brooklyn J. Int’l L. 503. See Jennings, R. The Acquisition of Territory in International Law (1963); Keller, Lissitzyn and Mann. Creation of Rights of Sovereignty through Symbolic Acts (1400–1800) (1938); Heydte, F. Discovery, Symbolic Acquisition and Virtual Effectiveness, 29 AJIL (1935); A. Decencière-Ferrandière. Essai Historique et Critique sur l’Occupation comme mode d’aquérir des Territoires en Droit International, 18 Revue de Droit Int’l 367 (1937); Henkin et al. Acquisition of Territorial Sovereignty, International Law (1987); Sepúlveda, César. Los Derechos Territoriales del Estado. Derecho Internacional (1991).

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Saviour [San Salvador] . . . But the Indians called it Guanahany. I also called each of the other by a new name. For I ordered one islands to be called Santa Maria de la Concepcion, another Fernandina, another Isabella, another Juana, and so on with the rest.44

The Spanish explorations in the Caribbean adhered to this pattern of discovery and formal occupation. In 1517, Francisco Hernández de Córdova45 took possession of the first Mexican island in the Caribbean Sea, calling it Isla Mujeres. Three weeks later, he landed in Cabo Catoche, in the Yucatán peninsula. This was the first landing in the New World’s terra firma.46 Juan de Grijalva headed the second expedition that reached the island of Cozumel on May 3, 1518, taking possession of it on behalf of Queen Doña Juana and her son, King Charles V.47 The island was later named Santa Cruz and was located in the eastern side of the Yucatán peninsula. The third expedition was commanded by Hernán Cortés who, under instructions48 from Diego Velásquez, Governor of Cuba, sailed for Yucatán on February 10, 1519 in a flotilla of eleven ships. On April 17, 1519,49 after his most important military

44

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46

47

48

49

Text taken from The Letter of Columbus on the Discovery of America (A Facsimile of the Pictorial Edition). Lenox Library, New York (1892) at 1–2. See also Curtis, William E. The Relics of Columbus (1893). An Illustrated Description of the Historical Collection in the Monastery of La Rábida (1893) at 140. There is no agreement as to Colon’s landing site. San Salvador, one of the Bahamas islands, has been identified with Grand Turk, Cat, Watling, Mariguana (sic), Samana, and Ackin islands. Watling’s Island seems to be the best choice. The occupation of the island of Cuba (name Fernandina in honor of the Spanish king) was used by Diego Velásquez since 1511 as a strategic launching point of major expeditions to the newly discovered lands between 1517 and 1519. It was from Cuba that Hernández de Córdova led the first expedition following the royal instructions of the Spanish King Charles V. See Patricia de Fuentes. The Conquistadors (1985) at 69. The island of Cuba is separated from Mexico’s Yucatán peninsula by a channel of only 135 miles (217 km.) wide. Ross Hassing. Mexico and the Spanish Conquest, The Discovery of Yucatán (2006) at 45–51. Bernal Díaz del Castillo, who accompanied the expedition, narrates that in Yucatán they found traces of human sacrifices. See Carlos Pereyra. Hernán Cortés. México (1976) at 23. Vicente Riva Palacio. México a Través de los Siglos (Mexico Through the Centuries). Vol. 1: Historia Antigua de la Conquista. México (1962) at 825–827; Pereyra, Ibid. at 26–32; and Hassing, Ibid. at 52–26. Velásquez instructions consisted of “exploring the coast and rescue gold and other goods, without having to establish any permanent establishment or to initiate the conquest of the lands.” Cortés drastically changed these instructions after establishing an Ayuntamiento and its Cabildo in Puerto de la Vera Cruz that appointed him Adelantado del Mar del Sur, Captain of the Army and Justicia Mayor on July 10, 1519. Endowed with these vast powers, Cortés initiated his military march to the conquest Mexico-Tenochtitlan, the capital of the Aztec empire, consummated on August 13, 1521 with the destruction of Tlatelolco and the capturing and death of Cuauhtémoc, the last Aztec emperor. See Riva Palacio, Vol. 1, supra note 51 at 827–837. Ibid. at 834.

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victory in Centla against the Mayas and the Zoques (who had reunited an opposing force of five thousand natives), Cortés took possession of the territory in the name of the King of Spain, planting the flag of Spain and the banner of the royal crown. Cortés’ expedition would eventually culminate with the conquest and destruction of Tenochtitlan, the capital of the Aztec empire, on August 13, 1519. By the end of the 16th century, Spain had accumulated immense territories in the Caribbean, Central and South America, Africa, the Philippines and Asia. At the peak of its possessions, King Charles V of Spain coined the phrase “In the Spanish empire, the sun never sets.”50 The Spanish Constitution of Cádiz of 1812 was the last fundamental law that applied in Spain and its overseas possessions, before the wave of independence movements in Latin America, and elsewhere, put an end to Spain’s territorial possessions. At the pinnacle of its territorial expansion, Article 10 of the Cádiz Constitution read: Article 10. The Spanish territory comprises the Peninsula with its possessions and adjacent islands, Aragón Asturias, Castilla la Vieja, Castilla la Nueva, Cataluña, Córdoba, Extremadura, Galicia, Granada, Jaén, León, Molina, Murcia, Navarra, Provincias Vascongadas, Sevilla y Valencia, the islands Baleares and the Canarias with the other possessions in Africa. In northern America, Nueva España with Nueva Galicia and the Península of Yucatán, Guatemala, the internal provinces of the East, the internal provinces of the West, the island of Cuba with the two Floridas, the Spanish part of the island of Santo Domingo and the island of Puerto Rico with the other [islands] adjacent to it and to the continent in both seas. In southern America, the Nueva Granada, Venezuela, Perú, Chile, the provinces of Río de la Plata and all the adjacent islands in the Pacific sea and in the Atlantic. In Asia, the islands Filipinas and those depending from its government.51

From the perspective of other major maritime powers, in particular England, France, Germany and The Netherlands, the Bull Inter Caetera – and the resulting principle of Uti Possidetis – were viewed as a bilateral pact legally binding between Spain and Portugal only. In other words, this papal edict was of no legal significance to affect the conduct of those maritime powers in their 50

51

See Roger Bigelow Merriman. Carlos V y el Imperio Español en el Viejo y Nuevo Mundo. Madrid (1960) at 399–431; and José Antonio Marval. Carlos V y el Pensamiento Político del Renacimiento. Madrid (1960) at 319–320. Some Spanish historians attribute this phrase to Felipe II; see, for example, Diccionario Enciclopédico Abreviado. Espasa Calpe. Madrid (1957), Vol. IV at 48 et seq. Constitución Política de la Monarquía Española (Political Constitution of the Spanish Monarchy). Promulgated in Cádiz on March 19, 1812. Reprinted in Mexico by the order of the Viceroy on September 8, 1812. Taken from Felipe Tena Ramírez. Leyes Fundamentales de México, 1808–1999 (Fundamental Laws of Mexico, 1808–1999). México (1999) at 61.

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activities and explorations anywhere in the high seas. Furthermore, the power and authority of the Pope to proclaim such an edict was openly challenged and publicly questioned. B. The Principle of Uti Possidetis Historically, the principle of Uti Possidetis traces its origin to Roman law.52 However, in its modern application in Latin America, Uti possidetis is a principle of customary international law that predicates that the original or administrative territorial boundaries of a given colony will become its international boundaries when the colony in question acquires its political independence and turns into a nation-state. In the 19th century, this principle acquired political and legal importance in Latin America because of the large number of Spanish and Portuguese colonies that utilized their international boundaries to emerge as independent States.53 After three hundred years (1519–1821) of colonial domination, Mexico obtained its independence from Spain pursuant to the Tratados dé Córdoba signed by Agustin de Iturbide and Juan O’Donojú in Mexico City on August 24, 1821; the Act of Independence was signed on September 28, 1821.54 Under international law, all the lands and territories (including islands) that originally belonged to the Vice-Royalty of the New Spain, as a former Spanish colony, were transferred to Mexico based on the principle of Uti possidetis. The application of this principle is reflected in the language of Mexico’s first two constitutional documents, namely: Article 1 of the Constitutional Act of the Mexican Federation (Acta Constitutiva de la Federación) and Article 2

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Under Roman Law, the interdict of uti possidetis awarded interim possession as a preliminary to the determination of ownership. Interdicts were decrees or orders of the Praetor issued as a speedy and safe remedy in order to prevent impending injury; they were generally granted at the request of a claimant and addressed to another person upon whom a certain attitude was imposed. See Suzanne Lalonde. Determining Boundaries in a Conflicted World. The Role of Uti Possidetis (2002) at 12. See also W.W. Buckland and A. McNair. Roman Law and Common Law (1952) at 70. See Uti Possidetis in Latin America, Ibid. at 24–60. Both Spain and Portugal, through acts that were bilateral (e.g., Treaty of Tordesillas) as well as unilateral (attribution of entire territory, including unexplored regions, to various colonial units) established their claim to sovereignty over the Americas. Moreover, this assertion of sovereignty was gradually rejected by the other European powers, Id. at 53. See also Moore, “Memorandum on Uti Possidetis;” Alejandro Alvarez. Latin America and International Law, 3 AJIL 269 (1909); and Mariano Pico-Salas. A Cultural History of Spanish America from Conquest to Independence (1962). Regarding Mexico’s independence and the transfer to it of all territories and possessions, including islands, that were originally under Spain’s sovereignty, pursuant to the Principle of Uti Possidetis, see Chapter One in this book, “Mexico and Its Territory,” supra notes 129–133 and the accompanying texts.

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of Mexico’s Federal Constitution of 1824 (Constitución de los Estados Unidos Mexicanos), recognizing these articles as the constitutional antecedent of Article 42 of the current Federal Constitution of 1917 that enunciates the parts of Mexico’s national territory, including islands. 1. Article 1 of the Constitutional Act of the Mexican Federation of 1824 After acquiring its political independence, Mexico went through an ephemeral empire. The Constitutional Act55 was prepared to guarantee the establishment of a federal and republican system and was used as a “draft” during the discussions for the subsequent Federal Constitution of 1824. Article 1 of said Act reads: Article 1. The Mexican nation is composed of the provinces comprised in the territory of the Viceroyalty known before as Nueva España (Territorio del Virreinato llamado antes de la Nueva España), that of the Capitanía General of Yucatán and that in the Comandancias Generales of the internal provinces in the East and in the West.56

2. Article 2 of the Federal Constitution of 1824 Mexico’s Federal Constitution of 1824 represents the first federal constitution enacted by that country. The political structure of the federal government, divided into three major branches, follows the language of the U.S. Constitution. Article 2 of the Mexican Constitution reads: Article 2. The territory [of the Mexican nation] comprises that of which was named before the Viceroyalty of Nueva España; that of the so-called Capitanía General de Yucatán; that of the Comandancias known as the internal provinces of the East and of the West; and that of Alta and Baja California, with their attached lands and adjacent islands in both seas (Con los territorios anexos e islas adyacentes en ambos mares). The demarcation of the boundaries of the federation is to be done by means of a constitutional act, as soon as the circumstances allow it.57 55

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This Act was formally discussed from December 3, 1823 to January 31, 1824. See Tena Ramírez, supra note 55 at 153. Derechos del Pueblo Mexicano. México a Través de sus Constituciones (Rights of the Mexican People. Mexico through its Constitutions). Constitutional and Historical Antecedents of Article 42 of the Federal Constitution of 1917, Vol. IV. México (1998) at 648. See also Tena Ramírez, Ibid. at 154. Constitución Federal de los Estados Unidos Mexicanos (Federal Constitution of the United Mexican States). Taken from Tena Ramírez, supra note 53 at 168. Referring to the powerful influence the U.S. Constitution exercised upon this very first Mexican federal Constitution, Tena Ramírez writes: “The deputies of the new States – Zavala writes – came full of enthusiasm for the federal system and their manual was the Constitution of the United States . . . that provided the text and the model to the new legislators.” Id. at 153. (The constitutional act referred to in this Article was never enacted). This is the first Mexican Constitution that in an explicit manner refers to the islands. (Emphasis added).

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3. Treaty of Peace and Friendship between Mexico and Spain of 1836 Finally, in the Treaty of Peace and Friendship between Mexico and Spain, signed on December 28, 1836, by which the Spanish monarchy expressly recognized Mexico’s political independence, Article 1 reads: Article 1. Her majesty, the governing Queen of Spain, on behalf of her august daughter Doña Isabel II, recognizes as a free, sovereign and independent nation the Mexican Republic, composed by the states and countries (Países, sic) specified in its constitutional law, namely: that known as Capitanía General de Yucatán, the Comandancias known as the internal provinces of the East and of the West; that of Baja and Alta California, and the attached lands and adjacent islands that in both seas are currently under the possession of said Republic. And her majesty renounces both to herself and to her heirs and successors any claim to the government, property and territorial rights of said states and countries.58

Evidently, in all of the preceding constitutional documents, Mexico, as an independent nation, strictly adhered to the principle of Uti possidetis. Thus the documents included each of the composing parts of the administrative territories originally under the control of New Spain as part of the territorial base of Mexico, a newly created independent nation. However, the application of the Uti possidetis principle – as suggested by a number of authors59 and the International Court of Justice60 – left unresolved a number of problems both domestic and international. Most of these problems consisted of, inter alia, the lack of clearly defined administrative boundaries, the existence of remote and unexplored areas, national territorial claims by two or more states, and the use of inaccurate maps for the establishment of international territorial boundaries.61

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Derechos, supra note 60 at 649. (Emphasis added ). See Lalond, supra note 54, Africa at 103–137; Enver Hasani. International Law under Fire: Uti Possideits Juris: From Rome to Kosovo. 27 Fletcher F. World Aff. (2003) at 85–91; Nathan Richardson. Breaking Up Doesn’t Have to be so Hard: Default Rules for Partition and Secession. 9 Chicago J. Int’l L. (2009) at 685; and Steven R. Ratner. Drawing a Better Line: Uti Possidetis and the Border of New States. 90 AJIL 590 (1996). See E. Rainbow Willard. How to Get Less than you Bargain For: Adjudicating the GuatemalaBelize Territorial Dispute at the ICJ. 23 Emory Int’l L. Rev. 739 (2009); Andre A. Rosen. Economic and Cooperative Post-Colonia Borders: How The Interpretation by the ICJ May Undermine the Relationship between Uti Possidetis Juris and Democracy. 25 Penn.St. Int’l L. Rev. 207 (2006); and Brian Taylor Sumner.Territorial Disputes at the ICJ. 53 Duke L.J. 1779 (2004). Just in Latin America, the Court resolved the maritime disputes between El Salvador and Honduras (2002) and Nicaragua and Honduras (1999) by referencing the Uti possidetis principle. Even the “Disturnell Map,” used in 1848 by the United States and Mexico to establish the territorial boundaries between both countries in Article V of the Guadalupe Hidalgo Treaty, was recognized to contain errors and be inaccurate. See Jorge A. Vargas. Is the International

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Internally, many of the states that compose the Republic of Mexico were created without first establishing clear and well-defined territorial boundaries.62 This territorial ambiguity soon translated into boundary conflicts that affected the peace in that country.63 At the international level, the imprecision of the boundaries of certain Mexican territories, such as Belize, allowed English Pirates and Jamaican settlers to gradually intrude during the 17th century. It eventually ended with the loss of this territory by Mexico.64 C. Articles 42 and 48 of Mexico’s Federal Constitution of 1917 with Regard to Mexico’s Territory and Its Islands 1. Article 42 Article 42 of Mexico’s Political Constitution of 1917 (as amended) reads: Article 42. The national territory is comprised of: I. The integral parts of the Federation; II. The islands, including reefs and cays in the adjacent seas; III. The islands of Guadalupe and Revillagigedo situated in the Pacific Ocean; IV. The continental shelf and the submarine shelf of the islands, keys and reefs; V. The waters of the territorial seas to the extent and terms established by international law and the internal maritime waters; and VI. The [air] space located above the national territory to the extent and modalities established by international law.65

Today, Articles 42 and 48 of Mexico’s Federal Constitution of 1917 refer to islands.66 Article 42 enumerates in its six paragraphs each of the parts that comprise its “national territory,” namely (i) the States; (ii) the internal waters; (iii) the waters of the territorial sea in the width and terms prescribed by international law; (iv) the continental shelf (including that of islands); (v) the

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Boundary between the United States and Mexico Wrongly Demarcated? 30 Cal. Western Int’l L. J. (Spring 2000) at 229–233. For a discussion of these territorial disputes, see Edmundo O’Gorman. Historia de las Divisiones Territoriales de México (History of the Territorial Divisions of Mexico). México (1996) at 139–143; 147–166 and 169–174. In his discussion of Article 42 of the Federal Constitution of 1917, Eduardo Andrade Sánchez recognizes that since the 19th century, the legal provisions relative “to the extension and boundaries [of the States] were never defined by a sole instrument which would have established them,” adding that even today “there are zones where there is an indefinition with respect to the boundaries between States.” See Derechos, Vol. IV, supra note 60 at 642. See Willard, supra note 64 at 763–782. Regarding the boundary treaty between Mexico and the United Kingdom, see Chapter One in this book, titled: Mexico and Its Territory, supra note 113 and the accompanying text. Taken from Agenda de Amparo 2010. ISEF, México (2010) at 41. For a discussion of Articles 27, para. I; 42 and 48 of Mexico’s Political Constitution, see Chapter One: “Mexico and Its Territory,” supra notes 77–136.

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air space situated above the national territory (in accordance with international law); and (vi) “the islands, including reefs and cays in the adjacent seas,”67 adding specifically “the islands of Guadalupe and those in the Revillagigedo (archipelago) in the Pacific Ocean.”68 During the discussion of Article 42 by the 1916–1917 Constitutional Assembly at Querétaro,69 the draft in question (as originally proposed in the Constitutional Draft submitted by Venustiano Carranza) was approved without discussion.70 Based on a later proposal by Julián Adame, an addition was made to explicitly mention “the Island of Guadalupe, those of the (Archipelago) Revillagigedo and that of La Pasión, situated in the Pacific Ocean.” Adame argued that, as approved, the article referred only to “adjacent islands” (which are those within the territorial sea or located relatively close to the Mexican coastlines), noting that Mexico possessed a number of islands that were quite distant from the continent.71 Therefore, to avoid possible discovery and occupation claims by foreign countries over said distant islands, the Constitutional Assembly considered it necessary to enumerate them in a explicit manner. As a result of this discussion, the Querétaro Constitutional Assembly concluded that there are two kinds of islands along Mexico’s littorals, namely: (a) those located within Mexico’s “territorial waters;” and (b) those situated far away (muy lejos o alejadas) from Mexico’s continental territory. The former may be a part of the corresponding coastal state whereas the latter cannot be considered as “state possessions but as national territory,” subject to the control of the Federal government.72 The latest catalogue of Mexico’s islands produced

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Several international law specialists have been most critical of the expression “adjacent seas” used in para. vi) and applied to islands, reefs and cays, because of its generality and ambiguity. They suggest that this broad language should be substituted for a more geographically precise language. See Laura Ortiz Valdéz. Régimen Jurídico de las Islas Mexicanas. Importancia y Problemática (Tesis), UNAM (1994) at 346–347. For the text of Article 42 as it appears today in Mexico’s Constitution of 1917 (as amended), see Chapter One in this book: “Mexico and Its Territory,” supra notes 19 and 20, respectively. For the discussion of Article 48 see infra note xx and the corresponding text. See Ortiz Valdéz, supra note 71 at 346. The draft of Article 42 read: “The national territory comprises that of the composing parts of the Federation and that of the islands in both seas,” ( . . . e islas adyacentes en ambos mares). Derechos, supra note 60 at 652. This draft article closely follows the concise language of Article 2 of the Federal Constitution of 1824. See also Tena Ramírez, Constitutional Draft (Proyecto de Constitución de Carranza) supra note 53 at 775. The addition of this language to the final part of Article 42 was unanimously approved by 157 votes in the Session of January 3, 1917. Derechos, Ibid. at 653. Discussion of Article 42, Derechos, Id. This article was amended by Diario Oficial of January 18, 1934, to delete from its language “Isla de La Pasión,” that was lost by Mexico as a result of an Arbitration against France in 1931. For information, see supra note 33 and the accompanying text.

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by the Secretaría de Gobernación (Segob), Secretaría de Marina and INEGI (June 2009) follows this constitutional division, classifying the Mexican islands as “Oceanic” and “Coastal.”73 Before discussing Article 48, there are two legal questions that have generated discussion in recent years regarding Article 42 of the Federal Constitution. The first involves the legal nature of the rights that Mexico, as a nation, exercises over its territory. And the second addresses some administrative questions that pertain to the definition of “territory” and the role that the Mexican states – as composing parts of the Federation – are to play in this regard. During the discussions of Article 27 by the Constitutional Assembly in Querétaro in 1916–1917, it was asserted that Mexico had reverted back to the notion of property that prevailed during the colonial period.74 It was pointed out that in the viceroyalty of Nueva España “the principle of the absolute authority of the king, as the owner of persons and of their assets,” and uniformly recognized by all, gave the notion of property a rather precarious status. Pastor Rouaix, a leading and influential member of said Assembly, stated: The king was the owner, holding a private title over lands and waters, in the same fashion that any other individual may be able to dispose of assets belonging to his patrimony; but within this right to dispose of said assets, the king granted to the already existing settlers and to those newly arrived, ownership rights (Derechos de dominio) . . . By virtue of the existence of the right of absolute property enjoyed by the king in said colonial legislation, it may be said that the right in question was passed with the same character to the nation (bien podemos decir que ese derecho ha pasado con el mismo caracter a la nación). Accordingly, the nation has a plenary right (Derechos de dominio) over lands and waters within its territory, and only recognizes or grants to private individuals said direct dominion (el dominio directo) under the same conditions this right was held, by the same individuals, during colonial times, and under the same conditions when at a later time the Republic did recognize it and grant it.75

In his commentary to this Article, Eduardo Andrade Sánchez summarizes the discussion on this matter by asserting: “The practical result of this preeminent right is the subordination of property to the public needs.”76 It may be argued that the application of the principle of Uti possidetis provides a legal basis for

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Catálogo del Territorio Insular (Catalogue of [Mexico’s] Insular Territory). Encuentro Nacional para la Conservación y el Desarrollo Sustentable de las Islas de México. June 23–26, 2009, Ensenada, B.C. (México). For the discussion of Art. 27, para. I of Mexico’s Political Constitution, see Chapter One, supra note 50–61, and the accompanying texts. Derechos, supra note 60, Vol. IV at 641. Ibid. For a discussion of Mexico’s legal notion of ownership pertaining to immovable assets (realty), influenced by royal property right in imperial Spain during medieval times, see Chapter One in this book, supra notes 68–76, especially the opinion of Andrés Molina Enríquez.

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the following interpretation: in the same fashion that this principle was utilized to legitimize the transfer of the original territorial base of the New Spain from Spain to Mexico, the transfer of said territories is to be granted with the same rights and powers legally exercised by the King of Spain over the territories in the New Spain. In the Rationale prepared by the Executive to amend Articles 27, 42 and 48 of the Political Constitution in 1960 and declare that the Mexican nation is vested with the ownership of the waters of the territorial sea, the President asserted: According to current international law, the territorial sea forms part of the territory of the State; [therefore], the sovereignty that the State exercises over its territorial sea is of the same nature as the one it exercises over its land (Dominio terrestre)77

This statement is in consonance with the idea that Mexico, as a nation, adhered to the legal notion that in matters pertaining to that country’s territory and to the ownership of its natural resources, the nation exercises plenary rights that reign supreme over individual rights. In other words, today Mexico claims absolute ownership over its own territory – including its natural resources, whether terrestrial or marine, mineral or non-mineral – in the same fashion that was originally exercised by the King of Spain over all its possessions, including those in the Nueva España. Mexico adheres to a traditional notion of property, where the State – as a full sovereign entity – owns and fully controls each and every part of its national territory, including islands, as prescribed by Art. 42 of Mexico’s Political Constitution. However, in an international world influenced by treaties, conventions, and scientific and technological developments, this old interpretation is beginning to be perceived as inadequate (and even passé ) when applied to novel spaces such as: (a) the continental shelf (along the continent and islands, as enunciated in para. IV of Art. 42); (b) the waters of the territorial sea (para. V); and (c) the air space situated over the national territory (para. VI). Regarding the doctrine of the submarine continental shelf, since its formulation by President Truman in 1945 and its subsequent incorporation into the Law of the Sea Conventions of 1958 and 1982, it has been recognized that the coastal State does not own that submarine area. Instead, it merely exercises “sovereign rights for the purpose of exploring and exploiting its natural resources” (Art. 77 (1), 1982 LOS Convention). These rights “do not affect the legal status of the superjacent waters or of the air space above those waters” (Art. 78 (1), 1982 LOS Convention). Also, the rights of the coastal state “must not infringe or result in any unjustifiable interference with navigation and other rights and 77

For a discussion of this constitutional amendment, see Chapter One in this book, titled: “Mexico and Its Territory,” supra notes 91–102 and the accompanying texts.

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freedoms of other states,” as provided for by said convention. Furthermore, as a party to the 1982 LOS Convention, Mexico is to interpret and apply this language in symmetry with the purpose and objectives reflected during the negotiation and final formulation of this multilateral convention. With Mexico’s enactment of its 1986 Federal Oceans Act,78 influenced by the 1982 LOS Convention, the time has arrived to consider providing the country with more modern, uniform and legally apt language for Articles 27, para. I; 42 and 48 of its Political Constitution. This would include the still to be enacted Regulations to the 1986 FOA, jointly with Reglamentary Act (Ley Reglamentaria) of said constitutional articles, as proposed by constitutional and law of the sea specialists. As a nation surrounded by four major vast and rich oceanic basins, Mexico deserves to have a federal legal regime that, in coordination with its littoral states, provides a modern legal regime that would foster the vigorous role of islands, marine resources and oceanic activities. Turning to the constitutional and administrative questions relative to the concept of territory and the involvement of the states, as reflected in the language of Article 42 of the Federal Constitution, it has been established that this article considers the national territory as comprised by the totality of its federal parts, i.e., the states that form the Republic of Mexico, as asserted in the first paragraph. The same Constitution, in Article 43, enumerates each of these composing parts.79 However, this article does not define the limits or extension of these composing parts, and assumes that a clear and legal definition of these parts has already been made by the local constitutions of each of these 32 federal parts. Surprisingly, the local constitutions do not provide this information. With regard to the limits and extension of the states, the majority of the local constitutions simply omit addressing this delicate question or, in a circular manner, they use language indicating that the state limits and extension are those “recognized by the Federal Constitution.”80 The use of this poor legislative technique by the Constitutional Assembly in 1916–17 has left this problem unresolved, notwithstanding that 83 years have elapsed without addressing this question.

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For a discussion of FOA, see Chapter Two in this book: “Mexican Marine Zones: Their Legal Regime under the Federal Oceans Act of 1986.” These parts are composed by 31 states and one Federal District (similar to the District of Columbia or DC) that operates as a state administratively. For the complete list of these entities, see supra note 32 in Chapter one of this book, titled: “Mexico and Its Territory,” and the accompanying text. See also Jorge A. Vargas. Introduction to Mexico’s Legal System (Chapter 1), Mexican Law for the American Lawyer (CAP, 2009) at 3–53. See commentary to Article 42, Derechos, supra note 60 at 641–642. In particular, check the language of the Constitutions of Michoacán, Jalisco, Morelos, Coahuila, Chiapas, Estado de México, Baja California Sur, Quintana Roo, Oaxaca and Yucatán.

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Since the nineteenth century, doctrinarians are of the opinion that the territorial area and limits of each state have not been defined by a federal statute.81 Clearly, this has been a lacuna legis. The lack of specific legislation on this matter evolved into a so-called “customary constitutional law” that resulted in a de facto situation that led to the acceptance of de facto boundaries between states.82 If the states were adversely affected by this legislative ambiguity, the effects upon the islands were even worse, as discussed in the following section.

3. Legal Problems Derived from Article 48 of the Constitution A. During the Constitutional Assembly of Querétaro of 1916–1917 1. Ambiguity in the Language of Article 48 From a constitutional viewpoint, Articles 27, 42 and 48 of Mexico’s Constitution should be grouped together and considered as a “triad.” All of them refer to the country’s national territory, enumerate its composing parts, and describe their legal characteristics. Article 48 reads: Article 48. The islands, cays and reefs of the adjacent seas that belong to the national territory; the continental shelf; the submarine shelf of the islands (zócalos submarinos de las islas), keys and reefs; the internal marine waters (aguas marítimas interiores), and the space above the national territory shall be under the direct control of the federal government, with the exception of those islands over which the States have up to the present exercised jurisdiction.83

The purpose of this article is dual. First, it places each marine component of Mexico’s national territory (as well as the superjacent air space) under the control of the federal government. Accordingly, any legal questions affecting these components are subject to federal jurisdiction and should be decided by federal law. Under public law, the fundamental rule in Mexico is that “the islands, cays and reefs of the adjacent seas” that form part of that country’s national territory are, per constitutional mandate, “under the direct control of the federal government.”

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The reader should be reminded that the “demarcation of boundaries of the federation” that was to be accomplished “by means of a constitutional act” pursuant to Article 2 of the 1824 Federal Constitution never took effect. See supra note 59 and the accompanying text. See Derechos, supra note 60 and accompanying text, and by the same author (González Oropeza), his commentary to Article 42 in Constitución Política. Comentada y Concordada (Political Constitution. Commented and Referenced ). UNAM (2003), Vol. II at 129–144. Taken from Derechos, supra note 60 at 899.

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Second, it excludes from the exercise of this federal jurisdiction, a certain but unspecified number of “islands over which the states have exercised jurisdiction” up to May 1, 1917 (when the 1917 Political Constitution entered into force). This final part of the article – since the time this precept was being discussed at the Constitutional Assembly in Querétaro 1916–1917, until today – has presented formidable constitutional and administrative problems both to the federal government and to a few littoral states with islands because the article’s language uses such general terms. Although it prescribes that the federal government concede that the littoral states may have already asserted their jurisdiction over a number of islands, Article 48, using a poor legislative technique, does not specify the names of those islands “over which the States have . . . exercised jurisdiction.” This constitutional ambiguity constitutes the main source of the jurisdictional overlapping and the resulting confusion that continues to exist in Mexico with respect to islands between the federal government, on one side, and a number of littoral states with islands, on the other. Mexican specialists on islands agree that this is the major legal problem that affect islands in that country today.84 Briefly mentioned, some of the contributing factors of this ambiguity include the following:85 • Mexico’s Constitutional Assembly of 1916–1917 did not have the time, or the material and administrative means, to duly ascertain which islands were under the jurisdiction of certain states at that time; • At that time, the Republic of Mexico was composed by only 28 states and 2 Territories (and the D.F.), in contrast to today’s 31 states (one D.F. and no territories). Then, the Territories were legally and administratively defined as territorial portions under the direct control of the federal government. When the Territories were converted into states (after complying with the requirements prescribed by Art. 73, para II, of the Constitution), each state became a part of the Republic subject to the understanding that it was “with the extension, boundaries and islands they possessed” at the time of their conversion. However, it was not until 1981 when Gobernación unilaterally asserted that “The islands are independent territorial units of the composing parts of the Federation; consequently, the extension

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Some of these specialists include, inter alia, Lic. Laura Ortiz Valdéz, Eduardo Andrade Sánchez, Lic. Maria Julia Sobarzo Morales, Lic. Alicia Kerber Palma, etc. See also Lic. Miguel Angel Méndez Buenos Aires. “Las Islas Mexicanas. Importancia Económica, Régimen Jurídico y Proyecciones Internacionales” Revista Mexicana de Política Exterior (SRE). No. 28, México (1990) at 33–39. Some of these ideas are discussed in more detailed below, see infra notes 100–105.

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and limits of the federal territories that have been converted into states did not comprise the adjacent islands to their littorals.”86 The newly converted states of Baja California Sur and Quintana Roo included a number of islands as part of their territories in their respective State Constitutions, in spite of the fact that any state legislative enactments (including their Constitutions) cannot go contrary to the Federal Constitution. The federal government never established a specific deadline in 1917, nor thereafter, for states to claim islands pursuant to Art. 48 of the then recently enacted Federal Constitution of 1917. The federal government never publicized in 1917, nor thereafter until 1981 (when Gobernación published its pamphlet: Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory (1981),87 what states, if any, made claims over islands. In said publication, Gobernación sentenced that three states: “Colima, Michoacán and Chiapas have no islands offshore their littorals,”88 and that “The states that have not incorporated islands to their territories (Que no integraron islas a su territorio), presumptively lacked the right to do so.”89 Since 1917 until recently, littoral states did not possess sufficient financial or technical means (including ships, equipment and prepared human resources) to visit or explore islands. The States’ priorities have traditionally centered in developing the continental part of the state instead of the distant, uninhabited and abandoned islands. In contrast, the federal government legally, administratively, technically and financially centralized powers and actions regarding Mexico’s so-called “Insular Territory.”

The delicate question of the exercise of jurisdiction by coastal states over adjacent islands, deriving from the language used in Art. 48 of the Political Constitution, is a public law matter of the utmost importance that continues to be undefined. In 1985, Mexico’s Supreme Court rendered an isolated decision regarding Isla Huivulai, offshore the state of Sonora. The government of this state expropriated the island and the Supreme Court held that Sonora lacked the power to expropriate the island since “the Federation is the only one that can undertake acts to affect the immovable private property in an island subject to its jurisdiction.” In its opinion, the Supreme Court wrote: 86 87

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See “Régimen Jurídico e Inventario de las Islas, (Nov. 1981)” infra note 91 at 13. “Régimen Jurídico e Inventario de las Islas, Cayos y Arrecifes del Territorio Nacional,” Gobernación (Nov. 1981) at 15. Ibid. Id.

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Chapter Six Accordingly, since there are no elements of conviction in the file that credit that Isla Huivulai, prior to February 5, 1917, had been under the jurisdiction of the state of Sonora, it is resolved that the legal situation of said island is comprised within the general rule established by Article 48 of the Constitution, that expressly prescribes that in cases such as this one the islands shall be under the direct jurisdiction of the government of the federation. For that reason, it is unquestionable that the decree through which Isla Huivulai was expropriated invades the powers of the federal authority, because, it was the executive of the state of Sonora who incorporated to its dominion said immovable asset disregarding that the Federation is the only one that can undertake acts to affect the immovable private property in an island subject to its jurisdiction.90

In another case by the Supreme Court which directly involved jurisdiction of the Islas Marias using an interpretation of Art. 48 of the Political Constitution, the highest Court of Mexico wrote: The precedents established as of now are in the sense that the jurisdiction over Islas Marías, and over the remaining islands in the same situation, belong to the Federal Legislative, Executive and Judicial Powers . . . and the term “Government of the Federation” (Gobierno de la Federación) does not have in our Constitution the limited meaning of Executive Power (Poder Ejecutivo) but that of an organ of the national sovereignty in its entirety, as derived from the context of Article 41 of said Constitution. The division of the Federal government into three powers does not affect the fundamental unity of said Government, given the necessary coordination that must exist [among them] regarding the matters that correspond to each of them. Out of this fundamental unity, each of the three powers that compose the federal government has, within its natural attributions, the power of jurisdiction. Thus, the Congress of the Union has the legislative power over common matters for the Federal District and Territories; the Executive regulates the administration of said Territories, including the federal islands; and the Judicial has the power to apply the laws on ordinary matters (del fuero común) in the same places. In other words, the Federal Judiciary does not contradict the power of Congress to legislate matters within the Territories when Congress is endowed with such power. Given the preceding considerations, it is sentenced that: 1) The Supreme Judicial Power of the Federation, as well as the Legislative and the Executive, have jurisdiction over Islas Marías; 2) This jurisdiction is not exclusive with respect to the nature of what has been called federal, but it may extend to the application of the ordinary laws, such as the Criminal Code; 3) The jurisdiction [over said islands] pertains to the Judge of the District of Nayarit; 4) The Criminal Code of the Nayarit District is in force in the Islas Marías . . . ”91 90

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“Isla Huivulai, Decision declaring that it is of evident public utility the occupation [of said island]. It invades the powers of the Federation.” (Isla Huivulai, Acuerdo que Declara que es de Utilidad Pública evidente la Ocupación de la. Invade la Esfera de Atribuciones de la Federación). Amparo en Revisión 950/85. Raúl Cervantes Ahumada (Apoderado legal de Banamex). January 28, 1986. Majority of votes 18. Semanario Judicial de la Federación, 7th epoca, Vols. 205–216 at pp. 61–62. (Emphasis added). Semanario Judicial de la Federación, Segunda Sala, 5a. Epoca, Tomo XLII at 45 (Emphasis added ).

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Both the Secretarías de Estado within their attributions explicitly assigned by the Federal Public Administration Act, and even the Supreme Court in a couple of decisions regarding Isla Huivulai and Islas Marías,92 have not found the right legal and political public policy – explicit, clear and finally authoritative – to put an end to this intolerable situation. Given the importance of this definition of control or jurisdiction over islands between the Federal government and the states with islands, it is imperative to consider the enactment of a Reglamentary Act of Articles 42 and 48 of the Constitution, or some other type of federal legislative enactment, that puts an end to this confusing and ancestral legal and political ambiguity. 2. First Amendment to Article 48 of the Political Constitution in 1960 Historically, Article 48 – as originally approved by the Constitutional Assembly of Querétaro in 1917 – did not include: (a) cays and reefs; (b) the continental shelf and the submarine shelves of islands, cays and reefs; (c) the internal marine waters; and (d) the air space situated over the national territory. These parts were added to the language of this article as a result of a reform in 1960.93 According to the Federal Executive, this amendment was justified for two reasons. First, the federal government wanted to make clear that the continental shelf “should not be understood as a prolongation of the territory of the coastal state.” This means that the continental shelf is under direct federal control. Second, it was argued that to have uniform legislation on this matter it was indispensable – in the opinion of the federal government – that the legislation in question be of a federal nature.”94 The adoption of this legal policy appears to have been influenced by the legislation enacted in the United States on these matters.95 Mexican constitutional law specialists have characterized Article 48 of the Political Constitution as “controversial” (sic) because it created a problem that contributed to today’s lack of definition regarding the exercise of jurisdiction over most of Mexico’s islands.96 In other words, since the Constitutional

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In the Isla Huivulai case it was evident that the Governor of the State of Sonora lack the legal power to expropriate said island. In the more important, and more general case of the Islas Marías, the Supreme Court expressed the opinion that in matters pertaining to Mexican islands, the control over them lies jointly with the three Powers of the Union (within their respective attributions) and not solely with the Executive. This addition was published in the Diario Oficial de la Federación of January 20, 1960. Ibid. The legal notion of the submarine continental shelf was introduced by President Truman in his historical Proclamation No. 2667 on September 28, 1945, as well as the resulting legislation to regulate the exploration and commercial exploitation of oil deposits in the continental shelf. See Commentary to Article 48 of the Federal Constitution by Lic. Laura Ortiz Valdez and Lic. Eduardo Alejandro López Sánchez, Derechos, supra note 60 at 905.

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Assembly in 1917 did not explicitly name each of the coastal states whose islands had been excluded from the direct control of the federal government since its inception, this constitutional vagueness has generated legal problems that continue to remain unresolved. An example of these problems include the absence of any official determination as to which and how many coastal states effectively “exercised jurisdiction” over certain offshore islands. Another question refers to the fact that when Article 48 was formulated in 1917, Baja California Sur and Quintana Roo were administratively defined as “Territories” (not states) and the Constitutional Assembly (or ulterior federal administrations) did not officially clarify the situation of the islands associated with those Territories. Since then, both Baja California Sur and Quintana Roo have been elevated to the category of States. Today, ninety three years after the 1917 Political Constitution was promulgated, it is now evident that the language of Article 48 was flawed, riddled with vagueness and ambiguity. Ample time has passed since 1917 for the federal government, in concert with the few interested states, to proceed to legally determine which states currently exercise jurisdiction over what specific islands. This indispensable clarification may be accomplished by means of a “Ley Reglamentaria” of Articles 42 and 48 of the Political Constitution. To continue to maintain this ambiguous situation is not only untenable but unnecessary and impractical not just to the detriment of those few states, but to the entire nation.97 Theoretically, there were several alternatives the Assembly could have employed to eliminate the ambiguity of the jurisdiction over the islands. For example, the Constitutional Assembly of Querétaro could have made an explicit enumeration of the states that, in its opinion, at that time exercised jurisdiction over adjacent islands, especially since the Assembly was comprised of representatives from each and every state of the Mexican Republic. In the alternative,

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To resolve this delicate constitutional question, for example, it has been repeatedly suggested for the federal government is to formulate a “Ley Reglamentaria de los Artículos 42 y 48 de la Constitución Política relativa a las Islas Nacionales” (Reglamentary Act of Articles 42 and 48 of the Constitution regarding National Islands). In 1981, for example, Enrique Olivares Santana, then Secretary of Gobernación, announced that he was sending to the Federal Congress a “Ley Reglamentaria of Art. 48 of the Constitution.” See also Laura Ortiz Valdez. Régimen Jurídico de las Islas Mexicanas, supra note 68 at 543 (Conclusion No. 28) and María Julia Sobarzo Morales. Propuesta de un Nuevo Régimen Jurídico Interno para el Territorio Insular” (Proposal for a New Domestic Legal Regime for the Insular Territory). Thesis, UNAM (1996); and Alicia Guadalupe Kerber Palma. “Las Islas de México” (Mexico’s Islands). Thesis, Universidad Iberoamericana (1984), passim. The formulation of a proposed “Reglamentary Act” is generally linked to the creation of a National Commission on Islands and the formulation of a National Program for Mexico’s Islands.

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the Assembly could also have added a “Transitory Article”98 when the Political Constitution was finally published, prescribing the manner in which interested states could prove the exercise of jurisdiction (whether de facto or de jure) over one or more islands offshore their coastline and setting up a deadline for those states to file the corresponding claim with the supporting evidence. During the debates of the Constitutional Assembly in 1916–1917, specific reference was made by some deputies to ten different islands: 1) Isla del Carmen offshore the state of Campeche (by Palavicini); 2) The four islands of the Revillagigedo Archipelago in association with the state of Colima (by Ramírez Villarreal); 3) The three Islas Marías and their relationship with the Territory of Tepic (by Ramírez Villarreal); 4) Isla Tiburón as belonging to the state of Sonora (by Monzón); and 5) Isla de San Juan de Ulúa as pertaining to the state of Veracruz (by Martí).99 However, the Constitutional Assembly took no specific action regarding the jurisdiction of these islands aside from approving the final text of Article 48. Once the then new 1917 Political Constitution was published, and subsequently entered into force, Mexico’s then thirteen coastal states gradually started to react to the language of Article 48 of the Constitution. During the 1920’s and 30’s, Mexico continued to suffer the devastating effects of the 1910 revolutionary movement whose widespread violence reportedly cost one million lives. The economy was in shambles and the majority of Mexican people, generally unemployed and millions living in poor rural conditions, had little expectations for a sound and sustained economic recovery. At the political level, a centralist presidential system was established and the political power was concentrated in the federal government. Outside Mexico City – the nation’s capital and the venue of the federal government – the social and economic panorama was dim. In the late 1930’s, the PRI (Partido Revolucionario Institucional, the official party) would emerge to quickly become an unstoppable political force at the national level. In the 40’s and 50’s the PRI was enthroned at the political level throughout the nation. Every governor and mayor in every municipal entity at the time (Presidente municipal ), was a member of the PRI. At the state level, each state depended economically on regular 98

99

Under Mexican law, “Transitory Articles” are provisions that appear at the end of a given legislative enactment (whether federal or state) when this enactment is published in the Diario Oficial (or in similar state gazettes). These provisions contain information regarding certain administrative or practical aspects associated with the enforcement of implementation of said enactment, such as the date of its entering into force, abrogation of previous statutes, etc. Thus, when the 1917 Political Constitution was published in the Diario Oficial on February 5, 1917, it included nineteen “Transitory Articles.” See Diario de los Debates del Congreso Constituyente de Querétaro, 1916–1917 (Diary of the Debates of the Constitutional Assembly of Querétaro, 1916–1917 ). México (1917), Vol. 2 at 14–17.

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subsidies provided to them by the federal government, administered by a state governor imposed by the federal government. In essence, this government and the PRI were one and the same at that time and for decades to come. Given these conditions, it was only natural that the islands offshore coastal states – and the development of the so-called “Insular territory” – were not a high political or economic priority. In addition, since each governor received from the federal government the necessary political backing to be elected (and had grown accustomed to expecting the badly needed federal subsidies), each state governor was complacent with the suggestions and plans proposed (and funded) by the federal government. This may explain the relative lack of interest by coastal states to submit to the federal government’s Secretariat of Gobernación the required documentation and evidentiary support to prove that the state in question did “exercise jurisdiction” over its adjacent islands prior to May 1, 1917, as prescribed by Article 48 of the Constitution.100 During the 19th and early 20th centuries, coastal states lacked the technical and financial capabilities to engage in maritime explorations on their own, including the exploration of adjacent islands or the conduct of promotional programs to populate some islands. The reason was simple: these activities had been traditionally and legally assigned to different federal agencies.101 From a historical perspective, given the military invasions suffered by Mexico throughout its past and recent history,102 the federal government has been empowered to be vigilant and protect Mexico’s international borders through the activities of the Secretariat of National Defense and the Mexican Navy.103 This strong federal presence along Mexico’s marine coastlines and islands left

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In fact, the economic situation of most states within continental Mexico was so dire that coastal states at that time appeared to have little or no interest whatsoever to prompt them to take the initiative of “exercising jurisdiction” over the adjacent islands considering that most islands were relatively distant, with no population, severe living and climatic conditions, unknown resources (if any), etc. The Federal Public Administration Act has traditionally assigned specific activities related to islands, ports, fishing, navigation, national security, population and colonization policies, etc. to federal agencies such as Gobernación, Marina, Communications and Transport, Defense, Environment and Natural Resources, etc. Mexico’s most recent military invasion took place in 1919 when the U.S. Navy warships and marines attacked and bombarded the city and port of Veracruz in the Gulf of Mexico. Given its technical equipment (i.e., military vessels and airplanes), in addition to its national security duties, the Secretariat of Defense and the Mexican Navy have been traditionally engaged in maritime expeditions to visit and explore islands. See, for example, Mares e Islas Mexicanas del Pacífico by Escuela Superior de Guerra (1949); to Islas Revillagigedo, Memoria de la Expedición Científica a las Islas Revillagigedo (April 1994, Universidad de Guadalajara (1957); and to Isla Socorro (Isla Socorro: Archipiélago Revillagigedo, UNAM, 1960).

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little or no power to coastal states to exercise jurisdiction and control over their adjacent and offshore islands. In closing, it must be mentioned that for decades the PRI promoted and disseminated a strong agrarian political philosophy throughout the country based on the existence of the Ejido, the utilization and development of the land and the importance of an agrarian reform. These land oriented and agrarian policies seldom included Mexico’s marine spaces (in addition to its numerous islands) to turn the country’s attention to utilizing its islands, coastal areas and varied marine resources to promote the economic and social development of the nation. The insistence on this official political philosophy which was strongly directed towards the land and agricultural activities – in a country crisscrossed with several chains of mountains, poor and semi-arid lands covering two thirds of the national territory and with little or no water – did not contribute to create a marine philosophy to push Mexicans to embrace the marine areas surrounding its country. The end result was that Mexico, surrounded by marine areas, continues to think today as an agrarian nation and not as a marine country. B. As Reflected in the Language of the State Constitutions Under Mexican law, the Secretariat of Gobernación (Segob) has been empowered by the Organic Act of the Federal Public Administration to be in charge of questions pertaining to Mexico’s federal islands. Article 27. Para. XI of said Act, reads: Article 27. Secretaría de Gobernación is in charge of addressing the following matters: .......... XI. Administer the islands under federal jurisdiction, save those whose administration corresponds, pursuant to the law, to other federal agencies or entities of the Federal Public Administration. In those islands to which the preceding paragraph refers, the federal laws and treaties shall control; those federal courts who are geographically the closest shall exercise jurisdiction to take cognizance over controversies arising from said islands.104

In response to Article 48 of the Constitution, Mexican coastal states, instead of filing any claims over islands with Secretaría de Gobernación, the federal agency in charge of matters pertaining to federal islands, opted to use the legal and political power of their own state constitutions to lay their respective claims.

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Art. 27, para. XI, Ley Orgánica de la Administración Pública Federal (Organic Act of the Federal Public Administration), taken from Agenda de la Administración Pública Federal, México (2010) at 8.

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According to the information provided by the Gobernación, no coastal state has ever submitted any claims over adjacent islands since 1917.105 Mexico has seventeen states with marine littorals: 1) Baja California; 2) Baja California Sur; 3) Campeche; 4) Chiapas; 5) Colima; 6) Guerrero; 7) Jalisco; 8) Michoacán; 9) Nayarit; 10) Oaxaca; 11) Sinaloa; 12) Sonora; 13) Tabasco; 14) Tamaulipas; 15) Veracruz; 16) Quintana Roo; and 17) Yucatán. However, three should be excluded because, according to Secretaría de Gobernación (Segob), they have no islands, namely: Chiapas, Colima and Michoacán.106 Out of this total, only a few states have made reference to their adjacent islands as part of the respective state’s territory. In 1981, the Secretaría de Gobernación released an official publication regarding legal regime and inventory of islands.107 It provided this summary regarding the manner in which coastal states have declared their jurisdiction, in their respective state constitutions, over their respective offshore islands: • The State of Baja California does not mention any islands as part of its territory in its Constitution. However, it does so in the local statute establishing its municipalities (Ley Orgánica Municipal, Art. 7, para. a) which prescribes that the Municipality of Mexicali includes these ten islands in the Gulf of California: 1) Isla Montague; 2) Isla Gore; 3) Isla Encantada; 4) Isla San Luis; 5) Isla Angel de la Guarda; 6) Isla Pond; 7) Isla Partida; 8) Isla Rosa; 9) Isla Salsipuedes; and 10) Isla San Lorenzo. The Municipality of Tijuana includes the Isla Coronado and others within the extreme latitudes of this municipality in the Pacific Ocean. The Municipality of Ensenada includes these islands: 1) Cedros; 2) San Benito; 3) El Toro; 4) El Zapato; 5) Guadalupe; 6) Sacramento; 7) San Jerónimo; 8) San Martin; and 9) Todos Santos. • The Constitution of Baja California Sur (Art. 34, para. II) prescribes: The following islands are comprised within the jurisdiction of this state:

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Information provided by the Office for the Administration of the Insular Territory, Secretaría de Gobernación (Segob). For the functions of this Secretariat, see Chapter Five in this book, supra note 110–117, and the accompanying texts, as well as Art. 27 of the Federal Public Administration Act (Ley Orgánica de la Administración Pública Federal ). Secretaría de Gobernación, in its publication: “Régimen Jurídico e Inventario de las Islas, Cayos y Arrecifes del Territorio Nacional-1981 (Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory 1981,” Segob, México (1981) declared that Chiapas, Colima and Michoacán have no islands off their coasts, at 15. In 1917, when the Federal Constitution was promulgated, the Republic of Mexico was composed of only 13 states and three “Territories,” Ibid. Today, Mexico is composed of 31 States and one Federal District (and no Territories), for a total of 32 federal entities. See Article 43 of the Political Constitution (as amended). Ibid. at 15–17 and 23. This official information is also reproduced in the Commentary to Article 48 that appears in Derechos, supra note 60 at 904–908.

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•

•

•

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1) Natividad; 2) San Roque; 3) Asunción; 4) Magdalena; 5) Margarita; and 6) Creciente, in the Pacific Ocean; 7) Cerralvo; 8) Santa Catalina or Catalana; 9) San Juan Nepomuceno; 10) Espíritu Santo; 11) San José de Santa Cruz; 12) del Carmen; 13) Coronados; 14) San Marcos; and 15) Tortugas in the Gulf of California; and all the adjacent islands, islets and cays between the parallels 28 and 22 30’ North. The Constitution of Campeche (Art. 4) reads: “The territory of this state comprises . . . the adjacent islands over which it exercises jurisdiction and any other [territories] that de jure or de facto may belong to this entity . . . ” The Municipalities Act (Art. 13, para V) prescribes that, as a part of Calkiní, these islands are included: Isla Arenas and Piedras as well as Cayo Arenas, including Isla Aguada. The Constitution of Sonora (Art. 3) establishes that its territory comprises “The islands of Tiburón, San Esteban, Lobos and other islands and islets that have been subject to its dominion” (sic). The Constitution of Quintana Roo (Art. 46, para. II) prescribes: “. . . the islands Cozumel, Cancún, Mujeres, Blanca and Contoy, in the Caribbean Sea, and Holbox in the Gulf of Mexico, as well as islands, islets, cays and reefs adjacent to its littoral, are part of its territory.” The Municipality of Othon Blanco, in Chetumal, comprises Banco Chinchorro formed by the cays Lobos, Norte and Centro, and the adjacent cays and islets. The Municipality of Cozumel includes the Isla de Cozumel, and the adjacent islets and cays. The Municipality of Benito Juárez exercises jurisdiction over Isla Cancún and adjacent cays. The Municipality of Isla Mujeres comprises the islands Mujeres, Contoy and Blanca, in addition to islets and cays adjacent to its littoral. The Constitution of Nayarit (Art. 3) provides that “the territory of the state comprises the islands that are recognized (sic) by the Federal Constitution . . . and those that correspond to this state pursuant to Article 48 of the Federal Constitution (sic).108

A characteristic shared by various state constitutions is that they do not name the islands under the jurisdiction of the state, and simply assert that the state has under its jurisdiction “the islands recognized by the federal government” (sic); none of them provide a specific date as to when the state in question started exercising this jurisdiction, nor do they enunciate the factual or legal basis of their jurisdictional control over the islands. In this regard, the Secretaría de Gobernación has made some legally important statements. First, “The states that did not include islands as part of their 108

All of these transcriptions from state constitutions are taken from Derechos, Ibid. The same transcriptions appear at Segob’s publication: Legal Regime and Inventory of Islands, supra note 91 at 23.

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territory (in response to the language in Art. 48 of the Federal Constitution), presumptively lacked the right to do it.” Second, regarding the territorial assertions made by Baja California Sur and Quintana Roo in their constitutions (Arts. 7 and 46, respectively), “no posterior statute (enacted after the 1917 Federal Constitution), including the local constitutions, may derogate the federal imperium exercised over islands prescribed by Article 48 of the Federal Constitution.” Accordingly, Gobernación concludes, regarding the islands offshore those two states, “it is evident that [said states] never exercised any jurisdiction over them except for the federal imperium,” asserting that “the territorial assertions over islands made by those two states are unconstitutional.”109 With respect to the two territories of Baja California Sur and Quintana Roo that became elevated from “Territories” to the category of states, Gobernación officially asserted: Pursuant to the Constitution, islands are independent territorial units [different] than those parts that compose the Federation and, as a consequence, the extension and limits of the federal territories that have been transformed into States did not include any islands.110

In principle, under Mexican constitutional law, the legal assertions made by the Gobernación clearly suggest that the provisions in today’s Constitutions of the States of Baja California Sur and Quintana Roo are unconstitutional. However, these two cases have not been submitted to the judicial test and final authoritative opinion of Mexico’s Supreme Court of Justice. C. A Novel Approach to Mexico’s Adjacent Islands of Certain States Art. 48 of the Political Constitution conferred upon the federal government the direct and exclusive control over coastal and oceanic Mexican islands for strategic and national security reasons. This significant reason was reflected in the

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This official statement appears in Segob’s publication Legal Regime and Inventory of Islands (1981) at supra note 91 at 23. Ibid. This statement, attributed to Secretaría de Gobernación, appears in the Commentary to Art. 48 of the Constitution authored by Lic. Laura Ortiz Valdez and Lic. Eduardo López Sánchez and no source is provided. See Derechos, supra note 60 at 907. These authors also cite the statement made by Lic. Miguel Angel Camposeco, a federal deputy (Diputado federal ) who attributed the inclusion of islands in the territory of Baja California and Quintana Roo possibly to “procedural vices and defects of a constitutional order that took place at the time when the General Congress elevated those territories into States.” Ibid. (citing no source). As a conclusion of this review, these two authors are of the opinion that all the state legislative enactments utilized by both of those two states to claim the islands as part of their respective territory “are but unconstitutional despite the practice to the contrary by both of those states.”

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discussions relative to said article by the Constitutional Assembly of 1916–1917,111 especially in light of the still pending arbitration at that time involving the dispute between Mexico and France over Isla de la Pasión – also known as Clipperton – that was finally resolved against Mexico in early 1934.112 However, the Assembly agreed that with respect to those islands close and adjacent to the state coastline, and those located within the territorial sea (referred to then, as “jurisdictional waters,” whose width at the time was 3 nautical miles),113 “to be considered as belonging to the states,” as explicitly asserted by Diputado Julián Adame.114 In the Commission’s final opinion (Dictámen) regarding Art. 42 of the Constitution that enumerates the parts of Mexico’s national territory, it was made explicit “that ‘adjacent islands’ are those placed precisely within the territorial waters or very close to the Mexican coasts.”115 Therefore, the Constitutional Assembly in 1917 clearly intended for those adjacent islands close to the states’ coastlines, as well as those within 3 nautical miles from the coast, to legally belong to the states and be subject to the states’ respective jurisdiction. Accordingly, it seems that the language that was added at the end of Article 48 was an unfortunate mistake. It imposed a condition that the Constitutional Assembly never intended to impose over each coastal state. With this interpretation in mind, the time has come for each coastal state in Mexico to revindicate the islands, placing them under their exclusive and direct control, in symmetry with the original intention of the Constitutional Assembly of 1916–1917. Additional arguments to buttress this idea may include the following:

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See the debates regarding Articles 42 and 48 of the Constitutional Assembly, especially the opinion advanced by Diputado Adame classifying islands into two categories: (a) those within the territorial sea (called “jurisdictional waters”) that may be controlled by the states; and (b) those in distant and oceanic waters, beyond said territorial sea, under the direct control of the federal government, Diario de los Debates, Vol. II, supra note 110 at 25. Regarding this arbitration, see also supra notes 26–34 and the accompanying texts. This adverse arbitral award to Mexico required this country to amend Article 42 of its Political Constitution to exclude Isla de la Pasión as part of its national territory. The amendment entered into force on January 18, 1934. See Art. 4, para. I, Ley de Bienes Inmuebles de la Nación (Immovable Assets of the Nation’s Act) of December 18, 1902. This statute is the very first enactment by Mexico, as an independent nation, establishing its own territorial sea. The first paragraph of this Act reads: “The assets of public domain or of common use, which are dependent from the Federation are: I. The territorial sea up to a distance of three nautical miles (Tres millas marítimas) counted from the lowest tide in continental coastlines or around the islands forming a part of the national territory.” Diario de los Debates, supra note 110 at 25. See the final opinion regarding an addition to Art. 42, Id. at 24. (In Spanish, the language reads: . . . colocadas precisamente en aguas territoriales o muy cerca de las costas mexicanas).

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• Since 1917, when Mexico’s islands were subject to the direct control of the federal government, this government has shown persistent lack of interest and clear apathy with regard to Mexico’s insular territory.116 For example, the country currently does not have a definite and precise inventory or catalogue of each and every island that belongs to that country; • From legal and administrative viewpoints, the legal regime applicable to the insular territory is incomplete, fragmentary, contradictory and with serious gaps (lacunae legis). Until today, the federal government has not formulated a comprehensive “Reglamentary Act of Articles 42 and 48 of the Political Constitution” to give coordination and uniformity to the numerous federal agencies and diverse legislative enactments, both federal and state, pertaining to said insular territory;117 • Currently, Mexico does not have a “National Program for the Utilization and Development of the Insular Territory.”118 As a consequence of this, islands in that country are not incorporated into programs that promote the economic and social development of that nation. This program would include activities to study and explore islands, determine their precise geographical location, inventory their species, locate natural resources that may lead to commercial exploration and exploitation, etc. This program would require the involvement of interdisciplinary groups composed by scientists, developers, government representatives at the state and federal levels, industrialists, investors, etc.119 • The establishment of a “National Commission for the Study and Development of Mexican Islands”120 is an idea that has been proposed several times over the last two decades. This commission may be a preparatory structure to lay down the fundamental bases for the formulation of the “National Program” described in the preceding paragraph.

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See Jorge A. Vargas. “Un Patrimonio Olvidado” (A Forgotten Patrimony). Uno Más Uno, México, April 11, 1981 at 5. See also “Islas, Riqueza Desaprovechada,” (Islands, Untapped Wealth). Supplement Enfoque, Reforma, Mexico, October 10, 2010 at 16. See Jorge A. Vargas. “Legislación Mexicana sobre Islas,” (Legislation relative to Mexican Islands). Uno Más Uno, México, April 26, 1981 at 2. In September of 1979, the Secretariat of the Navy (Secretaría de Marina, Department of Programs) formulated a study titled: “Basic Elements for the Integration of a National Plan for the Development of Islands” (Elementos Básicos para la Integración de un Plan Nacional de Desarrollo Insular) that among its proposals included the idea to establish a “Comisión Nacional de Desarrollo Insular” (National Commission for the Insular Development). See Jorge A. Vargas. “Política Marina Integral” (Towards a Comprehensive Marine Policy), Uno Más Uno, México, D.F., April 4, 1981 at 2. The purpose of this National Commission was to “Maximize the utilization of Mexico’s insular territory . . . transforming them into centers for economic development.” (Polos de desarrollo económico), Ibid.

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• Jointly with all of these ideas, structures, programs and activities, it is imperative for Mexico to formulate a national strategy to educate the Mexican people about the oceans, instruct them on the importance of marine uses and resources in the overall development of the country and launch a program that would transform Mexico into a marine nation.121 In sum, the federal government has not responded to the challenge of incorporating its numerous islands to elevate the standard of living of its citizens.122 After 93 years of exercising this federal control, Mexico’s insular territory continues to be unknown and undeveloped,123 virtually as it was a century ago. Since the federal government has not fulfilled this national aspiration, coastal states have the inherent right to take away the islands from the hands of the federal government and proceed to incorporate them as a means to contribute to their social and economic development.124 As predicted by Article 39 of the Political Constitution, since “the national sovereignty resides essentially and originally in the people, and is instituted for their benefit,” the people of each state with adjacent islands have the inalienable right to take back those islands and use them for their own benefit. This is a legal and historical right, justified in light of the official apathy and poor economic judgment the federal government has displayed over the last decades in relation to Mexico’s islands, both adjacent and distant.

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See Jorge A. Vargas. “México de Espaldas al Mar” (Mexico Has Turned Its Back to the Oceans). Uno Más Uno, México, November 1, 1981. See Jorge A. Vargas. “Día de la Armada: Ir al Mar,” (Mexico’s Day of the Navy: To Go to the Oceans), Uno Más Uno, México, June 1, 1981 at 9. Among the rationales (“Exposición de Motivos”) of a Legislative Bill for a Reglamentary Act of Article 48 of the Political Constitution (Iniciativa de Ley Reglamentaria del Art. 48 de la Constitución Política . . . para el Gobierno del Territorio Insular Federal,” formulated by Lic. Miguel Angel Camposeco Cadena, Federal Deputy to the LI Legislature of the Congress of the Union (dated November 10, 1981), this politician recognized that: “After a 150 years of independent life, for historical, political, economic and social reasons the Governments of the Republic forgot to incorporate the islands to the productive process that has taken place within its own continental territory.” See Jorge A. Vargas. “Centralismo y Federalismo: Fortalecer la Unión, No la Cabeza,” (Centralism and Federalism: To Strengthen the Union Not the Head ), Uno Más Uno, Mexico, November 14, 1981 at 3 and “La Nación, el Federalismo y las Islas,” (The Nation, the Federalism and the Islands), Uno Más Uno, December 19, 1981 at 2. See also, by the same author, “Islas, Riqueza Desaprovechada” (Islands, Untapped Wealth). Enfoque, Reforma. Sunday, October 10, 2010 (Mexico City) at 16–17.

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D. A Failed Attempt to “Federalize” Mexico’s Insular Territory In the late 70’s and early 80’s, as a result of Mexico’s establishment of a 200 nautical mile exclusive economic zone,125 the country was engulfed in a national but ephemeral political campaign to underline the importance of the oceans as a means to promote the country’s social and economic development.126 This marine impetus induced the federal government to take two actions: first, to explore the possible enactment of legislation that would strengthen its powers over Mexico’s islands, by considering the enactment of a “Reglamentary Act of Article 48 of the Political Constitution to Regulate the Federal Insular Territory;”127 and, second, to publish the first in a series of inventories and catalogues of the islands, cays and reefs of Mexico’s national territory.128 The proposed legislative bill was initiated with Rationales to justify the federalization of islands and composed of 34 articles separated into five chapters.129 The Rationales underlined the importance of Mexico’s islands as “independent territorial units” essential for the exercise of sovereignty, the exploitation of marine living resources, and as baselines for the maritime delimitation of the exclusive economic zone. The bill enumerated a total of 236 islands, whether coastal, marine, oceanic, and those found in rivers (Islas fluviales). It also provided “basic definitions” of the islands, reefs and cays.130 125

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Mexico established a 200 n.m. exclusive economic zone around its marine littorals through a presidential decree that amended Article 27 of the Political Constitution by adding an Eight Paragraph, published in the Diario Oficial of February 6, 1976. The EEZ entered into force on June 6, 1976. For a discussion of this marine zone, see Chapter Two in this book, titled: Mexican Marine Zones, supra notes 72–100; and Chapter Four, titled: Mexico’s Exclusive Economic Zone. See Jorge A. Vargas. “Otro Periplo Náutico” (Another Maritime Trip). Uno Más Uno, México, September 27, 1981. See supra note 110. See “Régimen Jurídico e Inventario de Islas, Cayos y Arrecifes del Territorio Nacional” (Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory) published by Secretaría de Gobernación in November of 1981. This inventory lists 239 islands, 23 cays and 20 reefs, Ibid. at 84. Chapter I was titled: I. Government of the Federal Insular Territory (FIT); II. Composing Parts of the FIT, classifying the islands into a) High seas islands; b) Coastal; c) In front of the State of Baja California; d) Sinaloa; e) Nayarit; f ) Guerrero; g) Oaxaca; h) Quintana Roo; I) Campeche; J) Tabasco; K) Veracruz; L) Tamaulipas; III. Organization of FIT’s Government; IV. Organization and Rendering of Services; and V. Segob’s Patrimony for the Administration of the FIT. An “island” was defined as a natural extension of the national territory, surrounded by water that emerges [from the oceans] in high tide; “reef ” is a mass formed by marine organisms and generally located between 30 degrees of latitude North and 30 of latitude South; and “cay” as the name given in the Caribbean Sea area and in part of the Gulf of Mexico to marine islands and other promontories.

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As an explanation of the language of the State Constitutions of Baja California Sur and Quintana Roo (originally constituted as Territories), the bill established that the attribution of state sovereignty may be the result of “procedural vices and defects [committed] at the time when said territories became states.” Since this attribution of sovereignty is unconstitutional in principle, the language of these constitutions and the exercise of state jurisdiction over them is to be placed subjudice until this question is decided by the competent federal court. Secretaría de Gobernación was chosen as the organ to control the entire Federal Insular Territory (FIT), to be divided into ten administrative regions. The bill closes with this exhortation: “The organization of the islands is an imperative requiring the involvement of large sectors of the Mexican island population who . . . need to have clearly defined legal and political regimes that govern this natural portion of Mexico’s national territory.”131 Since the excitement created by the establishment of Mexico’s exclusive economic zone in 1976, government officials and academicians have insisted that the time has arrived for the country to finally organize the legal and administrative aspects associated with state and federal islands by enacting a National legal regime to govern, serve and administer them. Specifically, the regime will consist of a modern and comprehensive program that would not only inventory and catalogue the islands, but do what is most important: design a plan to incorporate the islands into the planning of Mexico’s future economic, social, scientific and technological development. Although the legislative bill contemplating the enactment of the “Reglamentary Act of Art. 48 of the Political Constitution” was practically completed and privately circulated among key agencies of the Federal Public Administration,132 the bill was never officially introduced to Congress. Neither the federal government, nor the PRI, provided any explanation as to why this lengthy and elaborate proposal instantly faded away from the political arena.

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Information taken directly from the “Iniciativa de Ley Reglamentaria del Art. 48 de la Constitución Política for the Regulation of [Mexico’s] Federal Insular Territory,” dated at the Cámara de Diputados on November 10, 1981, supra 110, passim. See also Hernán Cázares. “Federalización de Todas las Islas” (Federalization of All the Islands). Boletin Sociedad Mexicana de Geografía y Estadística, No. CXXXIII, Vol. II (Agosto–Nov. 1983) at 129–132. The complete text of this legislative bill (Iniciativa de Ley) was formed of three parts, namely: 1) Exposición de Motivos e Iniciativa de Ley (Rationales and Legislative Bill ); 2) [Draft of ] “Ley Orgánica del Territorio Insular Mexicano” (Draft of the Organic Act of the Mexican Insular Territory); 3) “Memorandum sobre el Territorio Insular, Régimen Peninsular” (Memorandum on the Insular Territory, Peninsular [Legal] Regime); and 4) “Anteproyecto de Ley General del Territorio Insular de la Nación” (Draft of the General Act of the Insular Territory of the Nation). The entire bill formed a thick pamphlet of some 70 pages.

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4. Definition and Categorization of Mexican Islands according to Their Legal Situation In the recent past, the definition of “island” was more of a semantic exercise in finding the word in a common dictionary or in a glossary of geographical terms rather than in a legal dictionary. Today, mainly because of the emergence, rapid development and progressive codification of international law – particularly the law of the sea–, the term “island” (jointly with other minor marine promontories such as cays, reefs, islets and rocks, for example) has been transplanted from the field of grammarians to the realm of attorneys and jurists. A. Islands and the 1982 U.N. Convention on the Law of the Sea The interest of international law specialists on marine islands is well documented133 and dates back to 1930, during the work of the Conference for the Codification of International Law, and later on in 1956, as part of the work of the International Law Commission (ILC) to produce a draft for the countries participating at UNCLOS I in 1958. In essence, the language of Article 121 of the 1982 UNCLOS can be easily traced back to the works of 1930 and 1956, with minor changes.134 The inclusion of the exclusive economic zone of 200 n.m. as part of the 1982 Convention gave islands very special consideration and importance to matters pertaining to maritime delimitation. Also part of the consideration was the vast area of exclusive economic zone that a diminutive island can generate around it,135 and its use to draw the baseline from which other maritime zones are measured.136 Article 121 of the LOS Convention reads: 1. Article 121: Regime of Islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.

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See, for example, S. Nandan and S. Rosenne. U.N. Convention on the Law of the Sea 1982: A Commentary. Center for Oceans Law and Policy, University of Virginia School of Law (1995), Vol. III at 321–345. Ibid. at 326–328. Geographers have estimated that a smallest island in the middle of an ocean can generate an EEZ embracing some 125,000 square nautical miles! In addition, a single island within the EEZ of a coastal state may be validly used to establish an additional EEZ, thus further enlarging the EEZ area of the coastal state in question. Traditionally, on law of the sea matters islands were used already to draw around them their own territorial sea or to be used in drawing the baseline from which other maritime zones are measured. See Bernard H. Oxman. International Maritime Boundaries: Political, Strategic, and Historical Considerations. 26 U. of Miami Inter-American Law Review 243 (1994–1995).

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2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.137 a. Importance of Islands in Maritime Delimitation

Thanks to this provision and to the exclusive economic zone, both the United States and Mexico have obtained benefits by the establishment of their respective 200 n.m. exclusive economic zones.138 Today, the United States has the largest exclusive economic zone area in the world139 and Mexico’s is included within the first twenty largest.140 As discussed elsewhere in this book,141 eight islands were particularly important for Mexico in establishing its EEZ and outlining its outer boundary for 137

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Ibid. supra 136 at 324. For a detailed discussion of this article, see Satya N. Nandan et al. U.N. Convention on the Law of the Sea 1982: A Commentary. Vol. III. Center for Oceans Law and Policy, Univ. of Virginia School of Law (1995), Part VIII: Regime of Islands at 321–339. See J. Ashley Roach and Robert W. Smith. United States Responses to Excessive Maritime Claims. Kluwer (1996); Nuno Marques Antunes. Towards the Conceptualization of Maritime Delimitation. Martinus Nijhoff (2003); Victor Prescott and C. Schofield. The Maritime Political Boundaries of the World. Martinus (2005); and Robert Kolb. Case Law on Equitable Delimitation. Martinus (2003). According to Dr. Robert W. Smith, the U.S. EEZ “resulted in an area of approximately 2,222,000 square miles off the coasts of the fifty states and 885,000 square nautical miles off the coasts of the possessions and commonwealth,” and extending into these “six different water bodies: the Atlantic Ocean, the Gulf of Mexico, the Caribbean Sea, the Pacific Ocean, the Bering Sea and the Chukchi Sea (Arctic Ocean). R.W. Smith, The Maritime Boundaries of the United States. Geographic Review, Vol. 71, No. 4 (Oct. 1981) at 395. The U.S. used no less than eleven islands for the drawing of baselines with maritime boundaries reaching a total of 9,798 nautical miles. Ibid. at 398. See also R.D. Hodgson and R.W. Smith. Boundary Issues Created by Extended National Marine Jurisdiction, Chapter Four: “Mexico’s Exclusive Economic Zone,” supra note 83 at 423–433. Mexico has some 250 islands offshore its 11,592.77 km. of coastlines (some 4,848 nautical miles) along its littorals. Thanks to (1) Isla Guadalupe and (2) Isla Clarión in the Pacific Ocean, and (3) Cayo Arcas and (4) Arrecife Alacrán in the Gulf of Mexico, Mexico added a considerable marine area to its EEZ, which is larger in area than Mexico’s land mass territory, estimated to be some 1,972,550 km. (761,6000 square miles). The total area of the EEZ plus the Territorial Sea equal 2,179,260 square km. (635,538 square nautical miles) and in the Gulf of Mexico and the Caribbean Sea 703,494 square km. (205,160 sq. nautical miles) for a grand total of 2,882,754 sq. km. (771,698 sq. nautical miles). E. Solís Guillén. Derecho Oceánico (Ocean Law). Porrúa, México (1987) at 256. See Chapter Four: “Mexico’s Exclusive Economic Zone,” 3. The Use of Islands to Delimit Mexico’s EEZ, supra notes 118–120; A. Mexican Islands in the Gulf of Mexico, supra notes 121–128; b) Mexican Islands in the Pacific Ocean and the Caribbean Sea, supra 129–134; and

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maritime delimitation purposes with neighboring countries. Those islands are: 1) Isla Guadalupe and 2) Isla Clarión in the Pacific Ocean; 3) Cayo Arenas and 4) Arrecife Alacrán (Isla Chica) in the Gulf of Mexico; and 5) Isla Contoy; 6) Isla Mujeres; 7) Isla Cozumel; and 8) Banco Chinchorro (Cayo Lobos) in the Caribbean Sea. 2. Cays, Reefs and Rocks in the Gulf of Mexico The 1982 LOS Convention does not have a legal definition for these three geographical marine promontories, nor does it provide means to distinguish an island from “cays, reefs and rocks.” However, para. 3 of Art. 121 of the LOS Convention prescribes that “[R]ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Pursuant to Art. 121 of said Convention (and its antecedent, the Informal Single Negotiating Text (ISNT, Arts. 62 and 132) which reflected the general consensus by most participating countries and was publicly circulated by UNCLOS III at the time when the U.S. and Mexico negotiated their 200 n.m. maritime zone delimitation agreements in 1976, both countries expressly agreed to use islands (and not “rocks which cannot sustain human habitation or economic life of their own”) during these negotiations. However, as presumptively inferred from the implicit interpretation of Art. 132 of the ISNT, Mexico was able to use “rocks which can sustain human habitation or economic life of their own,” as explained by Székely who participated in said negotiations: The U.S. accepted the delimitation of the Mexican exclusive economic zone from certain islands in the Gulf of Mexico (not rocks which cannot sustain human habitation or economic life of their own), just as much as the United States itself had delimited its 200–mile zone from certain islands both in the Gulf and in the Pacific. In both cases there are islands which are not inhabited or which do not have an economic life of their own, but which are not only capable of attaining both requirements but, also, are not subject to the regime described above anyway, simply because they are not merely rocks.142

As pointed out earlier,143 Mexico and the United States agreed to use Cayo Arenas and Arrecife Alacrán as basepoints for maritime delimitation purposes

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c) Maritime Delimitation Negotiations with the United States, supra notes 135–151, and the accompanying texts. For the boundary delimitation with Honduras, Guatemala and Belize, see supra notes 168–177 and the accompanying texts. Taken from Székely. A Commentary with the Mexican View on the Problem of Maritime Boundaries in U.S.-Mexican Relations, 22 Natural Resources Journal (1982) at 156 – 155–159. See also “Maritime Delimitation Negotiations with the United States,” Chapter Four in this book: “Mexico’s Exclusive economic zone,” supra note 135 et seq. See supra notes 21 and 22 and the accompanying texts. See also Victor Carlos García Moreno. “Las Islas, la Convención sobre Derecho del Mar y su Relevancia en la Delimitación de los Espacios Marinos Mexicanos,” Revista JUS (Esc. de Derecho de Cd. Juárez) at 15–22.

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in the Gulf of Mexico. It is interesting to point out that in the “Inventory of Islands, Cays and Reefs”144 published by Gobernación in 1981, Cayo Arenas and Arrecife Alacrán are not listed under the category of “Islands” but in the section devoted to “Reefs and Cays.” In principle, this distinction seemed to denote a distinction between islands, on the one hand, and reefs and cays, on the other. However, this official publication does not include any definitions or explanations as to what Mexico considered to qualify as an island, cay, reef or rock. Under the separate category of “Cays and Reefs,”145 the following are included: Cayo Arenas, Cayo Chica, Cayo Desertora, Cayo Pájaros, Cayo Pérez and Arrecife Alacrán. In contrast, in the nautical chart titled Islas de México146 (Islands of Mexico), published by Marina in 1977, Cayo Arenas appears with that name as located offshore the Yucatán Peninsula. Accordingly, Arrecife Alacrán is listed as composed of these five islands: Isla Chica, Isla Desertora, Isla Desterrada, Isla Pájaro and Isla Pérez. In general, Cayo Arenas and Arrecife Alacrán are marked as the “Banco de Campeche.”147 Both in the original Catalogue by Marina in 1977 and Gobernación’s Inventory of 1981, the same marine promontories are uniformly classified not under the category of “Islands” but as “Cays and Reefs.” However, in the joint catalogue by the Gobernación and Marina published six years later (1987),148 the category of the “Cays” was changed to make them appear as “Islands.”149 Thus, in the section of “Islands in the Caribbean Sea offshore the coasts of Yucatán and Quintana Roo,” the following islands are listed: 1) Isla Desterrada; 2) Isla Desertora; 3) Isla Pérez; 4) Isla Chica; and 5) Isla Pájaros, with these characteristics:

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“Régimen Jurídico e Inventario de Islas, Cayos y Arrecifes del Territorio Nacional (1981), (Legal Regime and Inventory of Islands, Cays and Reefs of the National Territory (1981). This Inventory includes 239 islands, 23 cays and 20 reefs (p. 84). Ibid., “Cayos y Arrecifes del Territorio Nacional” (Cays and Reefs of the National Territory) at 80–83. Islas de México, S.M. 1400, published by Dirección General de Oceanografía, Secretaría de Marina. Compilación del Catálogo de Islas pertenecientes a la República Mexicana del Boletín Oficial de la Secretaría de Relaciones Exteriores, de los Derroteros O.S.M. 101y F.H. 102 de las Cartas que se editan en la D.G.O. Proyección Mercator, Escala 1:37,000,000 en Lat 23 Lat. N. Primera edición Julio 1977. Ibid. Islas Mexicanas. Régimen Jurídico y Catálogo, Secretaría de Gobernación y Secretaría de Marina. México, Septiembre 1987 (Mexican Islands. Legal Regime and Catalogue), published under the administration of President Miguel de la Madrid Hurtado after the enactment of the Federal Oceans Act (Ley Federal del Mar) of 1986. This Catalogue does not provide any technical definitions or explanation of any marine promontories. No explanation was given in the joint Catalogue (1987) for this change.

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1. Isla Desterrada. Lat. 22°32' N., longitude 89°47' W., chart S.M. 900. Its height reaches 3 meters and is located 75 miles north of Puerto de Progreso. 2. Isla Desertora. Lat. 22°27' N., longitude 89°44' W., chart S.M. 900. Its height is 4 meters and is located 69 miles north of Puerto de Progreso. 3. Isla Pérez. Lat. 22°23' N., longitude 89°42' W., chart S.M. 900. Is located in the southern tip of Arrecife Alacrán and 65 north of Puerto de Progreso. 4. Isla Chica. Lat. 22°23' N., longitude 89°39' W., chart S.M. 900. Its height reaches 1.50 meters and is located 64 miles north of Puerto de Progresp. 5. Isla Pájaros. Lat. 22°22' N., longitude 89°40' W., chart S.M. 900. Its height reaches 1.50 meters and is located 64 miles north of Puerto de Progreso.150 From this change regarding the category of these marine promontories it may be deduced that, from the Mexican perspective, Cayo Arenas and Arrecife Alacrán clearly possessed the technical characteristics to consider said promontories as “islands,” as prescribed by Art. 132 of the ISNT, and later adopted as Art. 121 of the 1982 LOS Convention. Accordingly, Mexicos Cayo Arenas and Arrecife Alacrán were, in reality, “islands” in spite of their technical characterization as a “cay” and a “reef,” respectively. This interpretation may be confirmed by the 1987 joint Catalogue Gobernación/Marina that officially enlisted them as “Islands” and not as cays or reefs. Furthermore, it may be evident that during the maritime delimitation negotiations between the United States and Mexico in 1976, the United States agreed with Mexico’s interpretation that those marine promontories offshore the Yucatán Peninsula in the Gulf of Mexico (originally referred to as Cayo Arenas and Arrecife Alacrán) were actually islands in symmetry with the ISNT and the 1982 LOS Convention.151 In addition to the fishing benefits for U.S. fishermen and the hydrocarbon potential, Mark B. Feldman, the main U.S. negotiator of the treaty, said: . . . before making this agreement, the Department of State solicited the best available expert advice, including scientists at the U.S. Geological Survey and at Woods

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Ibid. at 71. Regarding this technical and delicate question, during the hearings before the U.S. Senate regarding the Maritime Boundaries Treaty with Mexico, Mr. Mark B. Feldman (who negotiated the treaty) said: “In considering this issue, the Committee should note that the use of islands as basepoints gives the U.S. substantial areas in the Pacific off the coasts of California. In the Pacific, two islands, San Clemente and San Nicolas are used as basepoints and they bring under U.S. jurisdiction about 18,000 square miles of area, which includes four banks of fisheries importance: Tanner Bank, Cortez Bank, the 40-Mile Bank, and the 60-Mile Bank. These Pacific areas have hydrocarbon potential and are also of considerable interest to U.S. fishermen.” See Three Treaties, infra note 154 at 7 and 11 (Emphasis added).

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Hole Oceanographic Institute (sic) and the U.S. fishing industry. We contacted interested members of Congress at an early stage and the agreement was and is supported by all interested agencies of the United States Government.152

Therefore, said Mexican islands were validly used as basepoints to draw Mexico’s outer boundary of its 200 n.m. exclusive economic zone, as reflected in the Exchange of Notes of November 24, 1976,153 later formalized and confirmed in the Treaty of May 4, 1978.154 B. Islands under Mexican Law 1. Islands under the Federal Oceans Act of 1986 In the relatively long legislative history of Mexico, the FOA is the first and only enactment that refers to an island in a law of the sea context in these terms: Article 51. Islands have an exclusive economic zone but not the rocks which cannot sustain human habitation or economic life of their own.155

Evidently, this article is based in the language of Art. 121 of the 1982 LOS Convention, and responds to the fact that Mexico is a party to said Convention.156 152 153

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Ibid. at 7. Exchange of Notes signed at Tlatelolco, Mexico, by Alfonso García Robles, Secretary of Foreign Affairs, and Joseph John Jova, U.S. Ambassador to Mexico. This agreement entered into force on Nov. 24, 1976. 29 U.S.T. 1976 WL 166909 (U.S. Treaty)., T.I.A.S., Vol. 1117, No. 1–1782 at 76–80. This provisional agreement did not require consent by the Senate (either in the U.S. or Mexico) and is reproduced in Appendix Four at the end of Chapter Four in this book. See Three Treaties establishing Maritime Boundaries between the United States and Mexico, Venezuela and Cuba, Senate, Exec. Report No. 96–49, June 12, 1980, passim. This Treaty is reproduced as Doc. 4.6 in Appendix Four at the end of Chapter Four in this book. During the discussions of the maritime delimitation treaty of 1978 by the U.S. Senate, Dr. Hollis Hedberg opposed the use of islands by Mexico as basepoints to draw the outer boundary of the 200 n.m. limit in the Gulf of Mexico. See Chapter Four in this book. “Mexico’s Exclusive Economic Zone,” supra notes 149–150 and the accompanying texts. In a recent publication, Mexico asserts that the 1976 and the 1978 agreements established “the boundaries between these two countries both in the EEZ and in the continental shelf,” see “La Frontera Submarina entre México y los Estados Unidos de América,” (The Submarine Boundary between Mexico and the United States of America). SRE. Consultoría Jurídica. México (1998). The complete text of the FOA is reproduced as Doc. 2.1 in Appendix Two at the end of Chapter Two of this book. Mexico signed the 1982 U.N. Convention on the Law of the Sea on December 10, 1982; the Mexican Senate gave its “approval” on December 29, 1982; the Diario Oficial published the approval on February 18, 1983; Mexico was legally bound on March 18, 1983. The Convention entered into force at the international level (and for Mexico also) on November 16, 1994; the promulgation in the Diario Oficial took place on June 1, 1983 (Information provided by SRE, Direción de Tratados).

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Some technical questions pertain, for example, to the use of islands as basepoints, the distinction between islands and cays, reefs, rocks and islets, and the use of a chain of islands for the establishment of straight-baselines – as well as other questions on delimitation, marine scientific research, pollution, technology transfer, etc. All of these questions are expected to be addressed in the FOA’s Regulations (i.e., Reglamento de la Ley Federal del Mar) when said Regulations are enacted. However, as of today (2011), and not withstanding that the FOA was published in 1986, no such Regulations have been enacted.157 Articles 14–17 of the FOA refer in general terms to Mexico’s jurisdiction over “artificial islands, installations and structures” in the EEZ including the regulation of their “construction, installation, conservation, maintenance, reparation and demolition,” pursuant to the applicable Mexican law provisions.158 2. Isla Clarión and Mexico’s Exclusive Economic Zone In 1983, Professor Jon M. Van Dyke and Robert A. Brooks called attention to the fact that Art. 121 of the LOS Convention did not distinguish between “islands” and “rocks” nor did it explain the meaning of the phrase to be able to “sustain human habitation or economic life of [its] own.”159 This ambiguity allowed coastal States to use marine protrusions such as cays, reefs, islets, atolls and rocks to pass as “islands,” and unilaterally claim vast areas of ocean spaces under their jurisdiction and control by establishing 200-n.m. EEZs around them. Specifically, these authors cite the coral atoll known as “Clipperton Island” of France, while also making reference to Mexico’s tiny Isla Clarión, located 500 miles west of Puerto Vallarta that belongs to Archipiélago Revillagigedo in the Pacific Ocean.160 157

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In Mexico, all the agencies of the Federal Public Administration have been quite reticent to address this delicate question, in particular Gobernación, Relaciones Exteriores and Marina. In part, this may be attributable to the fact that the United States has not yet become a party to the 1982 U.N. Convention on the Law of the Sea. Furthermore, the forthcoming negotiations early in 2011 between Mexico and the U.S. regarding the transfrontier oil deposit in the Gulf of Mexico may have induced Mexico to adopt a more cautious attitude. On June 23, 2010, SRE issued a “Joint Communique Mexico-U.S.” announcing “the mutual intention to negotiate a treaty to regulate the utilization and legal regime of the hydrocarbon deposits crossing our international maritime border.” See Comunicado Conjunto de los gobiernos de México y Estados Unidos de América dated June 23, 2010. SRE “Comunicados” website at www.sre.gob.mx. For the language of these provisions, please refer to the text of the FOA reproduced in Doc. 2.1 in the Appendix to Chapter Two in this book. See Jon M. Van Dyke and Robert A. Brooks. “Uninhabited Islands: Their Impact on the Ownership of the Oceans Resources.” 12 Ocean Development And International Law Journal, (1983) at 265–300. See Islas Revillagigedo. Presencia Mexicana en el Pacífico. Secretaría de Marina, México (1978). President López Portillo visited the islands accompanied by Alm. Ricardo Cházaro

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Historically, no other country has ever contested Mexico’s possession of Isla Clarión. It has been long recognized as part of Archipiélago Revillagigedo that was discovered by Hernando de Grijalva on December 21, 1533.161 More specifically, the discovery of Isla Clarión is attributed to Ruy López de Villalobos (who originally named it Roca Partida and was later known as Santa Rosa), as part of an expedition commissioned and financed by Viceroy Antonio de Mendoza in 1542. In 1861, President Benito Juárez granted jurisdiction over the entire Archipelago to the State of Colima, at the request of its governor, Ramón de la Vega, to be used as a “Penal Colony.”162 Out of the four islands forming said archipelago, Clarión is the most distant from continental Mexico (375 nautical miles) and the second largest, with an area of 28.6 square km., measuring 8 by 3 km., approximately, and located at Lat. 18°20'30" N. and Lat. 114°45' W. longitude. All of the islands in this distant group have been explored and studied by American and Mexican scientists since May 1869. They include: Coronel A.S. Grayson; Commander George Dewey of the U.S. Navy in 1874, the California Academy of Sciences in 1903 and 1905,163 the University of Guadalajara in 1954,164 the Escuela Superior de Guerra in 1948, and Universidad Autónoma de México165 in 1960 who conducted scientific expeditions to Archipiélago Revillagigedo. Since 1956, during the administration of President Adolfo Ruiz Cortinez, Mexico established a permanent military detachment of marines who live in Socorro Island (with an area of some 150 square kilometers), jointly with their families. This island has a military base, a modern air strip, a control tower, several miles of internal roads, two radar stations, a desalting plant, a family

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Lara, Secretary of the Navy; Gen. Félix Galván López, Secretary of Defense; Lic. Rodolfo González Guevara, President of the Great Commission, Chamber of Deputies; and Gen. Miguel Angel Godínez, Military Presidential Chief, transported by destroyers Cuauhtémoc and Cuitláhuac and the transports Tehuantepec and Usumacinta in what was labeled: Operación Renacimiento. See Matilde González Dávalos and Francisco González Gómez. Islas Revillegigedo, Cartografía Histórica de las Islas Mexicanas, supra note 6 at 174, 171–196. President Juárez signed the corresponding decree on July 25, 1861. The project failed and the Archipelago reverted back to the Federal government pursuant to Art. II of said decree. Many of the names given to mounts, bays, craters, etc. were given by the California Academy of Sciences such as Monte Gallegos, Monte Evermann, Ensenada Grayson, Punta Rocal del Viejo, Montaña de Ceniza and Cráter Herrera, in González y Gómez. supra note 165 at 187–188. John Smith obtained a permit from the State of Colima and established a cattle development project in Isla Socorro in 1869 and a British company attempted to use the islands as a carbon refueling station in 1896 (both projects failed). Ibid. at 185–187. See Memoria de la Expedición Científica a las Islas Revillagigedo. Guadalajara (1957) and Mares e Islas del Pacífico. Escuela Superior de Guerra (1949). See Isla Socorro. Instituto de Geofísica, UNAM, México (1960).

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recreational center, an elementary school, an electrical plant, and a small deck for transport ships.166 Unlike the atoll known as Clipperton Island, Mexico’s archipelago is formed by four geological islands in Mexico’s possession since it became an independent nation in 1821. Given the remoteness of these islands from continental Mexico, in the past several countries have attempted to occupy and take possession of them with the intention of taking them away from Mexico, such as the United States during the invasion of islands by U.S. nationals instigated by the “Guano Act of 1856.”167 The four islands forming this archipelago extend for approximately 605 nautical miles, thus providing Mexico with excellent legally appropriate basepoints for the delimitation of the outer boundary of its 200 n.m. exclusive economic zone, as depicted in the corresponding nautical charts published by the Mexican Navy.168 In contrast, “Clipperton Island” is not an island but an atoll. It has always been deserted with no installations whatsoever, and it is geographically located thousands of miles from France. As suggested by Van Dyke and Brooks, it is questionable whether this island can in fact support stable population, and certainly it does not appear to have “an economic life of [its] own.” Further, because it is “uninhabitable,” France is not required to “effectively occupy” the island, leading these authors to conclude: It thus seems inappropriate that France should be able to claim an exclusive economic zone and continental shelf on behalf of this remote and seemingly uninhabitable atoll. ..... In order to remain true to the central goal of retaining a substantial portion of the oceans as the “common heritage of humankind,” Article121 should be 166 167

168

See Islas Revillagigedo, supra note 164 at 26–27. See discussion on the Guano Act of 1856 in supra notes 15–20 and the corresponding texts. This moved Mexico to explicitly include this Archipelago in Art. 42, para. III, which enunciates Mexico’s components of its national territory. During World War II, the U.S. Navy temporarily occupied Isla Socorro for strategic and military purposes. As a result of the establishment of its 200 n.m. EEZ by the addition of an Eighth paragraph to Art. 27 of Mexico’s Political Constitution (D.O. of February 6, 1976), Mexico enacted a Decree establishing the Outer Boundaries of the EEZ (D.O. June 7, 1976, pursuant to the Reglamentary Act (D.O. of February 13, 1976). This decree technically details the arches whose specific coordinates serve to delimit said EEZ. These documents are reproduced as Docs. 1 and 2 in the Appendix to Chapter Four: “Mexico’s Exclusive economic zone” in this book. See also Nautical Chart of Secretaría de Marina, S.M. 1300 for the graphic depiction of Mexico’s EEZ. See also Zona económica exclusiva; compilación de cartas de la Dirección General Adjunta de Oceanografía, Hidrografía y Meteorología. Secretaría de Marina (SM)2005, Junio 14, 2005 (Escala 1: 3,700,00).

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interpreted to grant an exclusive economic zone and a continental shelf only to those islands that can truly sustain “stable” communities “of organized groups of human beings.”169

3. Islands under Other Federal Legislation a. The Federal Public Administration Act Secretaría de Gobernación is the federal agency in control of all the federal islands in Mexico, as prescribed by Article 27 of the Federal Public Administration Act, which reads: Article 27. The official handling of the following matters corresponds to Secretaría de Gobernación: ..... XI. Administer the islands of federal jurisdiction, save those whose administration corresponds, by mandate of the law, to another agency or entity of the Federal Public administration. The islands to which the preceding paragraph refers shall be governed by the federal laws and treaties; the federal tribunals that are the closest shall be competent to take cognizance of the controversies that may arise in them.170

Politically, Gobernación is the most powerful federal agency in Mexico after the Presidency.171 Depending upon the type of functions, activities or works to be performed, several other federal agencies (both Secretarías and other entities) are also engaged in matters pertaining to islands, such as Foreign Affairs (SRE), Marina, Semarnat, Communications and Transport (SCT), Agrarian Reform, etc.172 Multiple legislative enactments at the federal level apply to the varied activities that take place on islands (both federal and the jurisdiction of states), such

169

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See Van Dyke and Brooks, supra note 159 at 289. This author shares these views and agrees that Art. 121 should be examined and eventually revised to avoid that coastal nations with uninhabitable islands – such as France regarding Clipperton Island – use them to establish around them a 200 n.m. EEZ. Ley Orgánica de la Administración Pública Federal, published in the Diario Oficial de la Federación of December 19, 1995 (and amended multiple times); taken from Agenda de la Administración Pública Federal 2010. Isef, México (2010) at 7 and 11. For a description of the functions of Gobernación, see Chapter Five: “Marine Scientific Research in Mexico” in this book, supra notes 110–112 and the accompanying texts. The list of the 19 Secretariats composing the Federal Public Administration, see supra note 109 in Chapter Five of this book. For a review of the functions performed by some of these federal agencies, see Chapter Five in this book, supra notes 110–136 and the accompanying texts.

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as the General Population Act, the Act of Ecological Balance and Environmental Protection, and the Fishing and Aquaculture Act, etc.173 b. The General Act of National Assets According to the General Act of National Assets (Ley General de Bienes Nacionales or GANA) whose purpose is, inter alia, to determine what assets constitute the Nation’s patrimony, and to establish the public dominion regime applicable to “the assets that belong to the Federation,” Article 3 reads: Article 3. National assets are: I.

Those mentioned in Articles 27, paras. four, five and eight; 42, para. four and 132 of Mexico’s Political Constitution.

II. The common use assets to which Article 7 of this Act refers; III. The movable and immovable assets of the Federation;174 ..........

Pursuant to para. I above, national assets are “all natural resources of the continental shelf and the submarine shelf of the islands; of all minerals and substances . . . solid mineral fuels, petroleum and all solid, liquid and gaseous hydrocarbons, and the air space situated over the national territory . . . ” as prescribed in para. four of Article 27. Paragraph five of this article vests the Nation with “the ownership of the waters of the territorial seas . . . ; internal marine waters . . . lagoons and rivers;” and para. eight prescribes that in the 200-nautical mile exclusive economic zone . . . “the Nation is vested with the sovereignty rights and the jurisdictions determined by the laws of Congress.”175 c. The Federal Civil Code The Federal Civil Code prescribes that property under “public domain” shall be governed by the provisions of said Code so long as “it is not subject to special laws.”176 173

174

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176

See Chapter Five in this book, supra notes 139–147 for a discussion of some of these federal legislative enactments. Ley General de Bienes Nacionales (General Act of National Assets), published in the Diario Oficial of May 20, 2004 (as amended). The complete text of all of these articles, and a discussion of them, is found in Chapter One of this book: “Mexico and Its Territory,” Appendix One, Doc. 1.1, see supra notes 36–46 and the accompanying texts. See Article 766, Federal Civil Code. Taken from Mexican Civil Code Annotated. Bilingual Edition (2009 Ed.) by Jorge A. Vargas. West (2009) at 321. Article 9 of the General Act of National Assets prescribes: “The public domain property of the Federation shall be exclusively under the jurisdiction of the federal powers under the terms prescribed by this Act, except those immovables that the Federation had acquired after May 1, 1917 and are located within

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Under Mexican law, property under public domain is divided into: i) property for public use; ii) property used for public services; and iii) property held as private property. Property for “public use” is inalienable and not subject to adverse possession limitations. All inhabitants in that country have the right to enjoy and use this property, subject to the restrictions established by law. For special and specific uses, a “concession” (Concesión or Autorización) or permit can be sought in accordance with the provisions of the specific applicable law.177 Anyone who interferes with the enjoyment of the use of public property designated for that purpose is subject to the applicable penalties and is liable for any damages and losses thereby caused, and will forfeit any improvements they may have placed thereon. Pursuant to the General Act of National Assets, “common use properties” (Bienes de uso común) include: the air space over Mexico’s territory, the internal marine waters, the territorial sea, the maritime beaches, the Federal maritime land zone (Zona federal marítimo terrestre), ports, bays and docks; levies, docks, reefs, coastal highways (Malecones) and other port works of public use, and other works such as dams, highways and roads, achaeological monuments, public squares and parks, etc.178 An important legal distinction must be made: when the property for “public use” is allowed to be used by an individual or a corporation (whether Mexican or foreign), the use in question is authorized or permitted only for a specified period of time and purpose, provided it complies with the requirements or conditions established by said permit, concession or authorization. Accordingly, the use of the real estate involved does not transfer the ownership or title but only allows the temporary use of the realty for a limited time and under the specific conditions established by the competent federal agency that extended the permit. In other words, the ownership and title of the realty in question “is vested originally in the Nation,” and the Federal government, who represents the Nation, is in full control over it. In addition, when a foreign individual or a Mexican corporation with foreign investors is authorized to use a piece of property under public domain or a property for public use, as expressly prescribed by Article 773 of the Federal Civil Code, and the first paragraph of Article 27 of Mexico’s Political

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the territory of some State, in which case the consent of the respective local legislature is required.” See Articles 767–770, Federal Civil Code. Article 8 of the General Act of National Assets reads: All the inhabitants of the Republic may use the assets of common use, with no more restrictions than those established by the laws and administrative regulations. For special uses over said assets, a concession, authorization or permit is required under the conditions and requirements established by the laws. Transcribed directly from paras. I–VII and then X–XIII, from Art. 7 of the General Act (GANA).

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Constitution, the foreign individual or corporation with foreign investors must enter into a special agreement directly with the Secretariat of Foreign Affairs (SRE), commonly known as “Convenio Artículo 27 Constitucional ” (Article 27 Agreement, originally known as “Cláusula Calvo”). Thus, Article 773 of the Federal Civil Code reads: Article 773. All foreign individuals and corporations are required to observe the provisions of Article 27 of the Constitution of the United Mexican States and its organic laws and rules upon acquiring real property within the Mexican Republic.179

Basically, foreign individuals and companies with foreign investors interested in acquiring real estate in Mexico (especially along maritime coastal areas) must enter into an agreement with SRE whereby they consent (a) to consider themselves as Mexican nationals with respect to any real estate assets located in that country; and (b) not to invoke the protection of their [foreign] government in these matters, under penalty, in case of violation of the agreement (Convenio Art. 27 Constitucional ), of forfeiting to the benefit of Mexico the properties they had acquired by virtue of said agreement.180 Although the preceding language is taken directly from Art. 27, para. I, of the Political Constitution, where it explicitly states: “Under no circumstances may foreigners acquire ownership of lands or waters within a strip of one hundred kilometers [64 miles] along the [international] borders and fifty kilometers [32 miles] along the coastlines,” in the 1989 federal Regulations to the Foreign Investment Act, Mexico has given a more flexible interpretation to this language. Today, foreign investors in foreign companies operating in Mexico are allowed to have the direct ownership over real estate anywhere in Mexico (including the international border with the United States and along maritime coastlines) provided said investment is for commercial or industrial purposes, such as building a hotel, a commercial center, a factory, a marina, etc.181 However, Mexico has not made explicit whether islands are included. Properties dedicated to the public use held as “private property” are vested in and fully owned by the Federal Government, the states or the municipalities, respectively; the former are inalienable and not subject to adverse possession, 179

180 181

Article 773, Federal Civil Code. For a discussion on the acquisition of real estate in Mexico by foreign individuals and companies, see Jorge A. Vargas. Fideicomisos: Real Estate Trusts in Mexico’s Restricted Zone. Mexican Law: A Treatise for Legal Practitioners and International Investors. West (1998), Vol. I, Chapter 10 at 351–391; and Acquisition of Real Estate, Chap. 10, Mexican Law for the American Lawyer. Carolina Academic Press (2009) at 155–187. Vargas, Mexican Law for the American Lawyer, Chap. 10, Ibid. at 156. See Vargas, Improved Fideicomisos under the Regulations of 1989, Mexican Law Treatise, Vol. I, supra note 179 at 369–371.

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as long as they are not withdrawn for the public use for which they have been destined.182 Marina performs numerous activities: it protects Mexico’s sovereignty in the territorial sea, the air space and along the coastlines, and keeps law and order in the Mexican marine zones, functioning as a “marine police,” or “coast guard.” It also conducts hydrographic works, naval sanitary activities and compiles all oceanographic information as well as protection activities of the marine environment and inspections and enforcement of “Natural Protected Areas.”183 Semarnat is in charge of protecting Mexico’s environment, including ecosystems, natural resources and assets, and formulating national environmental programs and policies. It “exercises the possession and property of the Nation” in beaches, the federal maritime land zone and lands gained from the sea. It proposes the establishment or lifting of open and closed seasons in fishing, timber and hunting activities. This federal agency is also empowered to grant contracts, concessions, permits and authorizations and recognizes rights over water, forests, exploitation of wild flora and fauna, particularly over beaches and the federal maritime land zone (FMLZ) and lands gained from the sea (Terrenos ganados al mar).184 4. Islands under State Legislation Coastal states in Mexico have abstained from enacting legislation to regulate islands offshore their coasts. Two reasons may explain this phenomenon: first, coastal states, based on Article 48 of the Political Constitution, are of the opinion that it is the Federal government – through the Secretariat of the Interior (Gobernación) – who legally and politically exercise control over Mexico’s “Insular territory.” Second, the islands offshore certain states play an insignificant role in the economic, social and political life of those states. Thus, there is no imperative reason that would move the local Congress to legislate on a matter of little or no significant importance for the state in question. Needless to say, the situation of states in Mexico is contrastingly different from the situation states have in the United States. In this country, states work arduously to forge a more vigorous state forming a part of a stronger, larger and unified nation. States have social, economic and political autonomy. In Mexico, two-hundred years after initiating its long struggle to become an independent nation in 1810, the states (with very few exceptions) suffer from economic and social problems. Today, many states in the Republic of Mexico could not survive without the economic support of the federal government. 182 183

184

Art. 770, Ibid. For Marina see Art. 30, paras. IV, VII, XI, XVI, XVII, XX, XXIV and XXV, Federal Public Administration Act. For Semarnat see Art. 32–Bis, paras. I, VIII, XIX and XXIX, Ibid.

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Crushed by internal problems, such as chronic poverty and the lack of a fair distribution of wealth, and devastated by the violence and the current blood bath caused by the war on drugs and the fight against organized crime and corruption, states in Mexico have little or no time to direct their attention to the offshore islands especially knowing they lack the economic capacity to develop both the state and its offshore islands. In sum, the problems in continental Mexico are so overwhelming that they do not materially or politically leave any attention for the islands. C. Categorization of Mexican Islands For academic purposes, and depending upon the specific legal regime applied to a given island, Mexico’s islands may be divided into these five categories: 1) Under the direct control of the federal government; 2) Destined to a specific federal end; 3) Under the jurisdiction of the states; 4) Under an environmental program; and, 5) Private islands. 1. Islands under the Direct Control of the Federal Government In principle, given the ambiguity derived from Art. 48 of Mexico’s Political Constitution regarding the legal regime applicable to Mexican islands185 – which continues to be the official position of the federal government today – any and all islands in that country are considered to be under the direct control of the federal government.186 2. Islands Destined to a Specific Federal End Principally for strategic and military reasons, few islands in Mexico have been subjected to a specific end by the federal government, usually through the enactment of “Acuerdos Presidenciales” (i.e., Presidential Orders) or Executive decrees. a. Isla Santa Margarita and Isla Roqueta This is the case of two portions of Mexico’s insular territory: Isla Santa Margarita and Isla Roqueta. Isla Santa Margarita (or Margarita) is situated in the western littoral of the state of Baja California Sur, offshore Magdalena Bay. Lat. 24°31' N. and longitude 112°01' W., SM Chart 602. It is a high and arid island of some 21 miles in length and with a width of 4.5 miles. Both ends are rocky and it has no vegetation. Mount Margarita is 566 meters high. It is

185 186

See “Legal Problems derived from Article 48 of the Constitution,” supra notes 87–95. See the “Consolidated Catalogue of Mexican Islands, 2010” that appears as Doc. 6.1 in the Appendix to this Chapter.

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inhabited by fishermen (Puerto Alcaraz) and by a Navy detachment of Armada de México.187

In 1950, President Miguel Alemán Valdez ordered that Isla Santa Margarita be placed under the administration and direct control of Secretaría de Marina.188 Early in the 20th century, it was reported that this island, and Magdalena Bay, were used unilaterally by the U.S. Navy to conduct some artillery practice.189 Isla La Roqueta, offshore Acapulco, Guerrero, was placed under the direct control of Secretaría de Marina through Presidential Orders in 1981.190 Isla Socorro, in the Revillagigedo Archipelago in the Pacific Ocean, where there is a permanent detachment of Armada de México, may also be placed under this category. b. Islas Marías The Archipelago of Islas Marias is the clear exception to the rule: there is a specific Estatuto de las Islas Marías (as recently amended in 2010),191 formed by 15 articles that detail the legal regime applicable to these three islands in the Pacific Ocean. This archipelago is formed by these three islands: 1) Isla María Madre, 2) Isla María Magdalena, 3) Isla María Cleofas (known as the three “Islas Marías”) and the minor Isla San Juanico (or San Juanito). Isla María Madre. It is located at Lat. 21°36' N., longitude 106°35' W., Nautical chart S.M. 400. It is separated from Isla Magdalena by a 4-mile channel. Its highest point is a peak in the center of the island of some 161 meters. Isla María Magdalena. It is located at 21°26' N., longitude 106°26' W., Nautical chart S.M. 400. It is at the NW of Isla Maria Cleofas, separated by a safe 8.5 nautical mile channel. It is a sandy island with volcanic origin and the scarce thorny vegetation characteristic of arid lands. Its highest point is a peak of 457 meters.

187

188 189

190

191

Information taken from Islas Mexicanas, infra note 225 at 30. It has been reported that manganese, vanadium, titanium, cadmium, sulphur, asbestus and magnesite are found this island. See Ortiz Valdez, supra note 85 at 433. See Sobarzo Morales, supra note 85 at 94–95. See Chapter Five in this book: “U.S. Explorations in the 1870’s and 1880’s and in the early 1920’s,” supra notes 72–76. See Acuerdo Presidencial published in the D.O. of October 10, 1981. Isla La Roqueta in located at Lat. 1648'51" N., and longitude 9954'40", S.M Nautical Chart 529. It is some one nautical mile long (1.5 km.), in an East-West orientation, and reaches 107 m. in hight. Islas Mexicanas. Régimen Jurídico y su Catálogo. Gobernación/Marina. Mexico (Sept. 1987) at 55. The “Estatuto de las Islas Marías” was originally enacted by President Lázaro Cárdenas on December 30, 1939. In its latest version, it was published in the Diario Oficial of January 4, 2010.

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In September 1, 1925, in President Plutarco Elías Calles’ State of the Union he informed the nation that Gobernación had been sending inmates to the “Penal colony of Islas Marías,” to segregate them from Mexico’s population with a dual purpose: cure them from their pernicious behavior and proceed to their rehabilitation. In those early days, inmates were forcibly sent to that “Penal Colony” as a place of reclusion, regardless of any constitutional or human rights. After the 1970’s this situation changed to require the inmate’s consent. Moreover, inmates could take their families to live with them. This development, according to Sergio García Ramírez, a Mexican specialist on Penitentiary Law, minimized the negative aspects of their captivity, strengthened the social solidarity aspects, offered conditions of captivity similar to those in continental Mexico, and prevented or diluted problems in penitentiary institutions.193 In 1991, a sociological study of this “Penal Colony” disclosed that the total population was 3,970 (inmates 2,629 and their families). Out of all inmates, 99% were males; sentenced for federal crimes (drugs 30% and homicides (38%); most of them from a rural origin (59.2%); between 18 and 29 years (80%); mostly uneducated (54% and 9% illiterate) and from large states (Jalisco 26%, Veracruz 17%, Michoacán 15% and Tabasco 10%).194 Today, the number of “Colonos” included a minimum of 3,526, with a budget of almost 5,000 million pesos and a Program to Dignify the Penitentiary. Marina, Communications and Transport (SCT), Federal Electricity Commission (CFE) and the Social Security (IMSS), all federal agencies, are permanently present at Islas Marías.195 The Estatuto de las Islas Marías prescribes that the Archipelago is “destined to the establishment of a Penitentiary Complex belonging to the Federal Penitentiary System, so federal or common law inmates may serve their sentences therein, as determined by the Secretariat of Public Security.” This “complex” favors “treatments of social re-insertion based on labor, training programs, education, health and sports.” The complex is governed by a federal statute of 15 articles.196

192 193 194

195 196

Information taken from Islas Mexicanas, supra note 225 at 53. Cited by Lic. Ortiz Valdez, supra note 71 at 464–465. Id. at 466. Data based on a study by Juan José González Bustamante. Colonias Penales e Instituciones Abiertas. Asoc. Nal. de Funcionarios Judiciales, Méxicio (1956) at 124. Lic. Ortiz Valdez, Id. at 468–469. Art. 1, Estatuto de las Islas Marías.

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3. Islands under the Jurisdiction of the States Only three coastal states: Campeche, Baja California Sur and Quintana Roo have been explicit in their respective local constitutions to claim to have jurisdiction over the islands offshore their marine littorals.197 4. Islands under an Environmental Program Few countries in the world are endowed with the vast flora and fauna found in Mexico, and the richness in its biodiversity.198 In 1998, under the auspices of the National Commission for the Knowledge and Use of Biodiversity (Comisión Nacional para el Conocimiento y Uso de la Biodiversidad, Conabio), and funded by U.S. AID, WWF, the Mexican Fund for the Conservation of Nature and especially the David and Lucille Packard Foundation, a group of 74 experts identified, geographically delimited and characterized 70 coastal and oceanic areas throughout Mexico’s littorals. These areas were considered of the highest priority given their high biological diversity, the use of their resources and the lack of knowledge and information regarding their biodiversity.199 A special map produced based on this information, out of the 70 areas selected, four clusters of the highest scientific priority in Mexico’s marine regions were depicted: 1) In the Gulf of Mexico; 2) In the Jalisco, Colima and Michoacán area; 3) In the Oaxaca-Chiapas area; and 4) In the Yucatán and Quintana Roo area. In 2005, a total of 244 islands and coastal areas in the Gulf of California were recognized by UNESCO as part of the “List of the World’s Patrimony.” The description of the site reads: The site is comprised by 244 islands, islets and coastal areas located in the Gulf of California in northeastern Mexico. The Sea of Cortez and its islands have been called a natural history laboratory for the investigation of speciation. Moreover, almost all major oceanographic processes occurring in the planet’s oceans are present in the property, giving it extraordinary importance to the study. The site is one of striking natural beauty in a dramatic setting, formed by rugged islands with high cliffs and sandy beaches, in contrast with the brilliant reflection from the desert and the surrounding turquoise waters. The site is home to 695 vascular plant species, more than in any marine and insular property on the World Heritage List. Equally exceptional is the number of fish species: 981, ninety of them endemic. The site, moreover, contains 39% of the world’s total number of species of marine mammals and a third of the world’s marine cetacean species.200

197 198

199 200

Ibid. See Océanos, Costas e Islas (Oceans, Coasts and Islands). Análisis de Vacíos y Omisiones en Conservación de la Biodiversidad Marina en México. CONABIO-CONANP et al., México (2007). See Conabio, Regiones Marinas Prioritarias de México at www.conabio.gob.mx. UNESCO. The World Heritage Newsletter. No. 50, Aug.–Oct., 2005.

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Mexico has enacted ten decrees establishing environmentally p