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Full text of "International law studies, 1994 : excessive maritime claims"

INTERNATIONAL LAW STUDIES 

1994 
EXCESSIVE MARITIME CLAIMS 



J. Ashley Roach and Robert W. Smith 



Volume 66 



NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



Library of Congress Cataloging-in-Publication Data 

Excessive maritime claims /J. Ashley Roach and Robert W. Smith, 
p. cm. — (International law studies; v. 66) 
Includes index. 

1. Territorial waters. 2. Contiguous zones (Maritime law) 
3. Economic zones (Maritime law) 4. Boundaries. I. Smith, 
Robert W. II. Title. III. Title: Excessive maritime claims. 
IV. Series. 
JX1295.U4 vol. 66 
[JX4131] 
341 s— dc20 
[341.4*48] 

94-31684 
CIP 









Contents v 
TABLE OF CONTENTS 

Page 

FOREWORD xi 

PREFACE xiii 

PART ONE— INTRODUCTION 1 

CHAPTER I— MAINTAINING FREEDOxM OF THE 

SEAS 3 

CHAPTER II-— IDENTIFICATION OF EXCESSIVE 

MARITIME CLAIMS 11 

Historic Bays 12 

Baselines 12 

Territorial Sea Breadth 13 

Contiguous Zones 13 

Exclusive Economic Zones 14 

Continental Shelves 14 

Archipelagos 15 

Innocent Passage in the Territorial Sea 16 

International Straits 16 

Overflight Restrictions 17 

Archipelagic Sea Lanes Passage 18 

PART TWO— LEGAL DIVISIONS OF THE OCEANS 

AND AIRSPACE 21 

CHAPTER III— HISTORIC WATERS 23 

Criteria 23 

United States Waters 23 

Foreign Waters Considered Not to be Historic 23 

Argentina and Uruguay (Rio de la Plata) 25 

Australia (Anxious, Encounter, Lacepede and Rivoli Bays) ... 25 

Cambodia and Vietnam (Gulf of Thailand) 26 

India and Sri Lanka (Gulf of Mannar and Palk Bay) 27 

Italy (Gulf of Taranto) 27 

Libya (Gulf of Sidra) 27 

Panama (Gulf of Panama) 31 

USSR (Peter the Great Bay) 31 

USSR (Northeast Passage) 33 



vi Contents 

Vietnam (Gulf of Tonkin) 33 

Historic Bay Claims Rolled Back 34 

Bays Now Qualifying as Juridical Bays 34 

Egypt (Bay of El-Arab) 34 

CHAPTER IV— BASELINES 41 

Normal Baseline 41 

Harbor Works 41 

Reefs 42 

Straight Baselines 42 

Unstable Coastlines 43 

River Mouths 43 

Low-tide Elevations 43 

Straight Baselines Policy of the United States 43 

Excessive Straight Baseline Claims 43 

Coastline Not Deeply Indented and Cut Into 49 

Coastline Not Fringed With Islands 58 

Non-independent Archipelagos 63 

Baseline Departs From the General Direction of the Coast ... 67 

Waters are Not Closely Linked to the Land Domain 69 

Low-tide Elevation Improperly Used as a Basepoint 71 

Terminus Located on a Maritime Boundary at Sea 73 

Terminus Located on the Territory of Another State 74 

Basepoints Located at Sea 74 

Terminus Not Located on Own Mainland 77 

Overlarge Bays and Gulfs 77 

Baselines Not Published 80 

CHAPTER V— TERRITORIAL SEA 93 

United States Policy 93 

Excessive Claims Rolled Back 96 

Territorial Sea Claims Greater Than 12 Miles 97 

CHAPTER VI— CONTIGUOUS ZONE 103 

Juridical Regime 103 

Excessive Claims 104 

CHAPTER VII— EXCLUSIVE ECONOMIC ZONE ... 109 

Juridical Regime 109 

Status as Customary Law 110 

United States Policy 113 

Excessive Claims 115 



Contents vii 

CHAPTER VTII— CONTINENTAL SHELF 121 

Geologic Definition 121 

Juridical Definition 121 

Delimitation of the Outer Edge of the Continental Shelf .... 124 

Excessive Claims 126 

CHAPTER EX— ARCHIPELAGOS 131 

Archipelagic States 131 

Island-Mainland States 132 

Baseline 132 



PART THREE— NAVIGATION AND OVERFLIGHT 

RIGHTS 141 

CHAPTER X— IN THE TERRITORIAL SEA 143 

Right of Innocent Passage 1 43 

Permissible Restrictions on Innocent Passage 144 

Temporary Suspension of Innocent Passage 145 

Excessive Restrictions on Innocent Passage 1 46 

Time Limits for Passage; Prohibited Zones 146 

Compulsory Pilotage for Sovereign Immune Vessels 1 47 

Passage Limited to Sea Lanes 148 

Prior Notice or Permission for Passage of Warships 154 

Enforcement of Violations 159 

Limitation on Number of Warships 160 

Nuclear Powered Warships 160 

Claims Rolled Back 162 

Hazardous Waste 163 

CHAPTER XI— INTERNATIONAL STRAITS 177 

Legal Regime 177 

Transit Passage 177 

Innocent Passage 181 

International Straits Not Completely Overlapped by Territorial 

Seas 182 

"Straits Used for International Navigation" 182 

Navigational Regimes of Particular Straits 1 82 

Aland 182 

BabelMandeb 183 

Bosporous and Dardanelles 183 

Gibraltar 185 

Hormuz 189 



viii Contents 

Kuril Straits 191 

Etorofu Strait 191 

Golovnina Strait 192 

Magellan 194 

Malacca and Singapore 194 

Messina 197 

Northeast Passage 200 

Northwest Passage 207 

Transit by USCG Icebreaker Polar Sea, August 1985 . . . 207 

Agreement on Arctic Cooperation 212 

Transit of the USCG Icebreaker Polar Star, October 1988 . 214 

The Oresund and the Belts 215 

Sunda and Lombok 218 

Tiran 219 

United Kingdom Straits 221 

CHAPTER XII— OVERFLIGHT RESTRICTIONS ... 231 

CHAPTER XIII— ARCHIPELAGIC SEA LANES 

PASSAGE 235 

Criteria 235 

Excessive Claims 236 

CHAPTER XIV— NAVIGATION IN EXCLUSIVE 

ECONOMIC ZONES 241 

Criteria 241 

Excessive Claims 241 

Survey Activities in the Exclusive Economic Zone 247 

Survey Activities vs. Marine Scientific Research 247 

Definitions 248 

Military Activities 249 

PART FOUR— CONCLUSIONS 253 

CHAPTER XV— THE FUTURE OF U.S. OCEAN 

POLICY 255 

Implementation of U.S. Ocean Policy 255 

Freedom of Navigation Program: The "Lever" of U.S. Ocean 

Policy 255 

Promulgation of Policy Guidance for Maritime Forces 256 

Development of Conventional International Law 258 

Emerging Ocean Policy Issues 259 

Environmental Protection and Resource Conservation . . . 259 



Contents ix 

Environmental Protection 260 

Conservation of Living Marine Resources 262 

Sovereign Immunity of Warships and Military Aircraft . . . 263 

Maritime Counter-Drug Operations 265 

U.S. Ocean Policy for the 21st Century 265 

APPENDICES 

1. President's Ocean Policy Statement, March 10, 1983 275 

2. Proclamation 5030, Exclusive Economic Zone, 

March 10, 1983 277 

3. Proclamation 5928, Territorial Sea, December 27, 1988 . . . 279 

4. Joint Statement by the United States and Soviet Union, 
with Uniform Interpretation of the Rules of International 

Law Governing Innocent Passage, September 23, 1989 .... 281 

5. Ratifications and Accessions to the 1982 United Nations 
Convention on the Law of the Sea 283 

6. Relevant Articles of the 1982 United Nations Convention 

on the Law of the Sea 285 

LIST OF TABLES 

1 . Claims Made to Historic Bays 23 

2. Claims Made to Straight Baselines 44 

3. Territorial Sea Claims 94 

4. Territorial Sea Claims of 12 Miles or Less 94 

5. Excessive Territorial Sea Claims Rolled Back 96 

6. Territorial Sea Claims Greater than 12 Miles 97 

7. States Claiming a Contiguous Zone Beyond the Territorial 

Sea 103 

8. States Claiming Security as a Contiguous Zone Interest ... 106 

9. Exclusive Economic Zones 112 

10. Restrictions on Warship Innocent Passage 158 

LIST OF FIGURES 

1. Continental Shelf 123 



Contents 



LIST OF MAPS 



1. Rio de la Plata 25 

2. India-Sri Lanka Maritime Boundary 28 

3. Gulf of Taranto 29 

4. GulfofSidra 30 

5. Peter the Great Bay 32 

6. Oman Claimed Straight Baselines 51 

7. Egypt Claimed Straight Baselines 52 

8. Egypt: Red Sea Claimed Straight Baseline 53 

9. Albania Claimed Straight Baselines 56 

10. Vietnam Claimed Straight Baselines 59 

11. Djibouti Claimed Straight Baselines 64 

12. Canadian Arctic Straight Baselines 66 

13. United Kingdom Straight Baselines (Falkland Islands) ... 68 

14. Burma Claimed Straight Baselines 70 

15. Germany's Territorial Sea Extension in the North Sea ... 72 

16. Venezuela Straight Baseline Claim 75 

17. Maldives Claimed Territorial Sea 76 

18. Costa Rica Claimed Straight Baselines 78 

19. Mauritania Claimed Straight Baselines 81 

20. Indonesian Archipelago 133 

21. Cape Verde Archipelago 135 

22. Philippine Archipelago 136 

23. Black Sea Bumping Incident 151 

24. Bab el Mandeb 184 

25. Strait of Gibraltar 186 

26. Strait of Hormuz 190 

27. Straits of Malacca and Singapore 195 

28. Strait of Messina 198 

29. Northwest Passage 208 

30. Danish Straits 216 

31. Strait of Tiran 220 



FOREWORD 

The International Law Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises, and articles that contribute to 
the development and broader understanding of international law. This, the 
sixty-sixth volume of the series, consists of an extensive analysis of the objectives, 
legal basis, diplomatic and operational components, and historical background 
of the U.S. Freedom of Navigation Program. 

The national security and international commerce of the United States 
depend upon the freedoms of navigation and overflight on and over the seas. 
The Freedom of Navigation Program is designed to further the vital need to 
protect maritime rights by minimizing efforts of other States to reduce global 
mobility through the assertion of maritime claims that do not conform to the 
careful balance of interests reflected in the 1982 United Nations Convention on 
the Law of the Sea. The authors, Captain J. Ashley Roach and Doctor 
Robert W. Smith, both of the Department of State, have made a valuable 
contribution to preserving and enhancing navigational freedoms through this 
articulate reassertion of the U.S. determination not to acquiesce in excessive 
maritime claims. On behalf of the Secretary of the Navy, the Chief of Naval 
Operations, and the Commandant of the Marine Corps, I extend to the authors 
of this exceptionally important work our gratitude and thanks. 

The opinions expressed in this volume are those of the authors and are not 
necessarily those of the United States Navy nor of the Naval War College. 



Joseph C. Strasser 

Rear Admiral, U.S. Navy 

President, Naval War College 



XIII 



PREFACE 

The purpose of this volume is to describe the diplomatic and military efforts 
undertaken by the United States Government to preserve and enhance naviga- 
tion and overflight rights and freedoms worldwide, particularly in the twelve 
years following the adoption of the 1982 United Nations Convention on the 
Law of the Sea (LOS Convention). The text describes how States, including the 
United States, have interpreted and applied this first constitution for the oceans. 
This volume describes many of the actions taken under the U.S. Freedom of 
Navigation Program, begun in 1979, including diplomatic efforts and peaceful 
assertions of the rights and freedoms of navigation and overflight recognized in 
international law. It also considers the future of U.S. ocean policy after the 
Convention enters into force later this year. 

This study is organized in four parts: Introduction, Legal Divisions of the 
Oceans and Airspace, Navigation and Overflight Rights, and The Future of U.S. 
Ocean Policy. In PART ONE, Chapter I examines the challenge of maintaining 
freedom of the seas, while Chapter II identifies the categories of the maritime 
claims of States that are inconsistent with international law, i.e., "excessive 
maritime claims". PART TWO examines in detail the international legal criteria 
governing the legal divisions of the oceans and airspace, excessive maritime 
claims of States in each legal division, and the U.S. responses to those illegal 
claims. Chapters III through IX consider seriatim historic waters, baselines, the 
territorial sea, the contiguous zone, the exclusive economic zone, the continental 
shelf, and archipelagos. 

PART THREE considers the navigation and overflight rights enjoyed by 
States, illegal claims by States to restrict the exercise of those rights, and U.S. 
efforts to counter those excessive maritime claims. Chapters X through XIV 
review those claims successively in terms of the territorial sea, international 
straits, overflight restrictions, archipelagic sea lanes passage and navigation in 
exclusive economic zones. PART FOUR (Chapter XV) considers the future 
of U.S. ocean policy. 

Appended are the 1983 Presidential Ocean Policy Statement, the 1983 
Proclamation establishing the U.S. exclusive economic zone, the 1988 Presiden- 
tial Proclamation extending the U.S. territorial sea to 12 miles for internai tonal 
purposes, and the 1989 U.S.-U.S.S.R. statement with Uniform Interpretation 
of the Rules of International Law Governing Innocent Passage. Also appended 
is a list of the States that have ratified or acceded to the LOS Convention. To 
facilitate the utilization of this volume as a working reference, all relevant articles 
of the Convention are reprinted in Appendix 6. 

On November 16, 1994, the LOS Convention will enter into force for those 
States — not including the United States — that have consented to be bound by 
its terms. Negotiations to amend the deep seabed provisions of the Convention 



XIV 



have produced an agreement that will enable the United States to seek the advice 
and consent of the Senate to accession to a revised Convention. 

Readers should be aware that the authors do not claim to have considered in 
this text all the relevant State practice that is in the public domain. On the other 
hand, particularly with the delay in publishing current volumes of the DIGEST 
OF UNITED STATES PRACTICE IN INTERNATIONAL LAW, we have 
succeeded in having declassified much of the U.S. practice during the past decade 
and have attempted to review the practice of other States that is in the public 
domain. We regret there is not more available. 

Readers should also be aware that the authors do not purport to discuss every 
coastal State maritime claim that may be inconsistent with the law of the sea, 
and that the text does not describe all actions taken by the United States (and 
other States) in response to these excessive claims. Some remain diplomatically 
sensitive; others remain classified for national security reasons. Thus, the failure 
to mention a particular claim should not be construed as acceptance of that claim 
by the United States. 

In addition, this analysis does not attempt to identify all the practice of States 
which conforms to the provisions of the LOS Convention, although basic zonal 
jurisdictional claims are identified. Nevertheless, the United States believes that 
the general practice of States reflects acceptance as international law of the 
non-seabeds provisions of the LOS Convention. 

A summary of an earlier version of this analysis was published by the Office 
of Ocean Affairs, Bureau of Oceans and International Environmental and 
Scientific Affairs, U.S. Department of State, as Limits in the Seas No. 112, United 
States Responses to Excessive National Maritime Claims (1992). 

The authors wish to express their appreciation to the Naval War College 
family for their support and efforts in bringing this study to print. We extend 
our particular thanks to the faculty and staff of the Oceans Law and Policy 
Department of the Center for Naval Warfare Studies and its Naval Reserve Law 
Program element. The authors also extend their thanks to the Office of the 
Geographer, U.S. Department of State for preparation of the maps utilized in 
this volume. 



J. Ashley Roach, J.D., LL.M. Robert W. Smith, Ph.D. 

Captain, J AGC, USN (retired) Office of Oceans Affairs 

Office of the Legal Adviser U.S. Department of State 

U.S. Department of State Washington, D.C. 

Washington, D.C. July 1994 
July 1994 



PART ONE 



INTRODUCTION 



Maintaining Freedom of the Seas 3 



Chapter I 
Maintaining Freedom of the Seas 



The oceans encompass more than 70 per cent of the surface of the globe. 
Prior to World War II, most of the oceans were free for use by all nations. 
Coastal States had sovereignty over only a narrow three mile territorial sea. 
However, since 1945 the trend has been clearly toward enclosing the oceans 
with ever broader coastal State claims of sovereignty or other competence to 
exclude other users of the oceans. This book chronicles the United States' 
continuing effort, principally in the years following the conclusion of the 1982 
United Nations Convention on the Law of the Sea (LOS Convention), to 
maintain the freedom of the seas which is essential to its maritime commerce 
and national security. 

As a maritime nation, the United States' national security depends on a stable 
legal regime assuring freedom of navigation on, and overflight of, international 
waters. That regime is set out in the LOS Convention, reflecting a careful 
balance of coastal and maritime State interests. The LOS Convention was 
designed in part to halt the creeping jurisdictional claims of coastal nations, or 
ocean enclosure movement. While that effort appears to have met with some 
success, it is clear that many States presently purport to restrict navigational 
freedoms by a wide variety of means that are neither consistent with the LOS 
Convention nor with customary international law. The stability of that regime 
is undermined by claims to exercise jurisdiction, or to interfere with navigational 
rights and freedoms, that are inconsistent with the terms of the LOS Convention. 

The historic trend is for the commonly shared rights of all users of the seas to 
be diminished by coastal State claims to exercise rights further from shore. The 
expansion of the territorial sea breadth from 3 to 12 miles, and the acceptance 
of the 200 mile exclusive economic zone (EEZ), are prime examples. While the 
12 mile territorial sea and 200 mile EEZ have gained international legal 
acceptance, as reflected in the LOS Convention, many States have asserted claims 
that exceed the provisions of the Convention. Unless these excessive claims are 
actively opposed, the challenged rights will be effectively lost. 

This book seeks to explain the United States Government's responses to 
excessive maritime claims through a program to preserve and enhance naviga- 
tional freedoms worldwide. This program, named the U.S. Freedom of Naviga- 
tion (FON) Program, was formally instituted during the Carter Administration 
in 1979 to highlight the navigation provisions of the LOS Convention to further 
the recognition of the vital national need to protect maritime rights throughout 
the world. The FON Program was continued by the Reagan, Bush and Clinton 
Administrations. It is intended to be a peaceful exercise of the rights and freedoms 



4 Excessive Maritime Claims 

recognized by international law and is not intended to be provocative. As 
President Reagan stated on March 10, 1983, it has been U.S. policy to: 

accept and act in accordance with the balance of interests relating to traditional 
uses of the oceans — such as navigation and overflight. In this respect, the United 
States will recognize the rights of other States in the waters off their coasts, as 
reflected in the Convention, so long as the rights and freedoms of the United 
States and others under international law are recognized by such coastal States. 

In addition, United States policy has been to: 

exercise and assert its navigation and overflight rights and freedoms on a worldwide 
basis in a manner that is consistent with the balance of interests reflected in the 
[1982 Law of the Sea] convention. The United States will not, however, acquiesce 
in unilateral acts of other States designed to restrict the rights and freedoms of the 
international community in navigation and overflight and other related high seas 
uses. 

The FON program operates on a triple track, involving not only diplomatic 
representations and operational assertions, but also bilateral and multilateral 
consultations with other governments in an effort to promote maritime stability 
and consistency with international law, stressing the need for and obligation of 
all States to adhere to the customary international law rules and practices reflected 
in the LOS Convention. This study identifies those countries that have brought 
their offshore claims in line with accepted international standards. The FON 
program helps to promote this process, by lowering coastal State expectations 
that other States will accept their claims and reversing the creeping jurisdictional 
expansion which proceeded almost unchecked in the 1960's and 1970's. 

When addressing other States' specific maritime claims that are inconsistent 
with international law, the United States uses, as appropriate, the various forms 
of diplomatic correspondence. These include first and third person diplomatic 
notes, and may take the form of formal notes, notes verbale and aides tnemoire. 
Since 1948, the United States has filed more than 140 such protests, including 
more than 110 since the FON Program began. Portions of these are excerpted 
or cited in this study. 

The objective of the FON Program is not just to maintain the legal right to 
operate freely in and over international waters. The more important objectives 
are, first, to have other nations recognize and respect the legal right to operate 
freely, in conformity with the navigational provisions of the LOS Convention, 
in and over international waters, and second, to minimize efforts by other States 
to reduce those rights by making excessive maritime claims. Diplomatic com- 
munications alone do not always achieve those objectives. 

The United States requires maritime mobility. To the extent that mobility 
can be exercised consistent with international law as reflected in the LOS 



Maintaining Freedom of the Seas 5 

Convention and without political or military opposition, U.S. national security 
is enhanced. The United States believes it has a responsibility actively to promote 
compliance with the rules reflected in the navigational provisions of the LOS 
Convention. The United States has more to lose than any other nation if its 
maritime rights are undercut. Even though the United States may have the 
military power to operate where and in the manner it believes it has the right 
to, any exercise of that power is significantly less costly if it is generally accepted 
as being lawful. If the United States does not exercise its rights freely to navigate 
and overfly international waters, international straits and archipelagic sea lanes, 
it will lose those rights and others, at least as a practical matter. 

The necessity for diplomatic communications and operational assertions to 
maintain the balance of interests reflected in the LOS Convention as law is often 
not well understood. It is accepted international law and practice that, to prevent 
changes in or derogations from rules of law, States must persistently object to 
actions by other States that seek to change those rules. Protest "must, at the very 
least, be repeated" and "must be supported by conduct which opposes the 
presentations of the claimant State." Naturally, States are not required to adopt 
a course of conduct which virtually negates the rights reserved by protest. 
Consequently, States will not be permitted to acquiesce in emerging new rules 
of law and later claim exemption from them at will. 

Acquiescence is the tacit acceptance of a certain legal position as a result of a 
failure to make a reservation of rights at the appropriate juncture. For acquies- 
cence to arise, a claim must have been made and accepted. The claim must be 
made in a manner, and in such circumstances, that the other State has been placed 
on notice of that claim. The conduct that allegedly constitutes acquiescence, or 
tacit acceptance of that claim, likewise must be clear and unequivocal. The failure 
to make a timely protest in circumstances when it reasonably could have been 
expected to do so may constitute tacit acceptance of the claim. 

Although one may question whether international law requires action by deed 
in order to preserve the legal position, "actions are an indication of national 
resolve and an affirmative effort to influence the formation of international 
law. . . . Action by deed . . . promotes the formation of law consistent with the 
action and deeds may be necessary in some circumstances to slow erosion in 
customary legal practice." Where the claim protested against has the effect of 
taking away a nation's right to use portions of the oceans, mere preservation of 
one's legal right to operate there is of little practical value when one chooses not 
to operate there except in extraordinary circumstances. Avoiding areas where a 
country needs to operate, or could be expected to operate, in the absence of the 
illegal claim gives both practical and legal effect to the excessive claim. 

Operations by U.S. naval and air forces designed to emphasize internationally 
recognized navigational rights and freedoms complement U.S. diplomatic ef- 
forts. FON operations are conducted in a low-key and non-threatening 



6 Excessive Maritime Claims 

manner but without attempt at concealment. The FON Program impartially 
rejects excessive maritime claims of allied, friendly, neutral, and unfriendly States 
alike. These assertions of rights and freedoms tangibly exhibit U.S. determination 
not to acquiesce in excessive claims to maritime jurisdiction by other States. 
Although some operations receive public scrutiny (such as those that have 
occurred in the Black Sea and the Gulf of Sidra ), most do not. Since 1979, 
U.S. military ships and aircraft have exercised their rights and freedoms in all 
oceans against objectionable claims of more than 35 countries at the rate of some 
30-40 per year. 20 

This study summarizes relevant portions of the law of the sea, as understood 
by the United States, and describes, in as much detail as security and foreign 
policy considerations permit, the actions undertaken and results achieved by the 
FON Program. It should be noted that most of the illegal claims were made 
prior to the adoption of the LOS Convention in December 1982, and have not 
yet been revised to conform to the LOS Convention, even by some States which 
have ratified the instrument. 

Two caveats should be noted in regard to this study. First, it does not purport 
to discuss all coastal State maritime claims that may be inconsistent with the law 
of the sea, nor does it set out all actions taken by the United States (and other 
States) in response to these excessive claims. Thus, the failure to mention a 
particular claim should not be construed as acceptance of that claim by the 
United States. 

Second, this analysis does not attempt to identify the practices of other States 
which conform to the provisions of the LOS Convention, although basic zonal 
jurisdictional claims are identified. In fact, the United States believes that the 
general practice of States reflects acceptance as international law of the non- 
seabed parts of the LOS Convention. 

Notes 

1. All miles in this study, unless otherwise noted, refer to nautical miles. One nautical mile equals 1,852 
meters. 

2. The LOS Convention, U.N. Doc. A/CONF.62/122 (1982), reprinted in 21 I.L.M. 1261-1354 (1982), 
was concluded December 10, 1982 and will enter into force on November 16, 1994 (one year following the 
deposit with the United Nations by Guyana of the 60th instrument of ratification) for those States that have 
ratified or acceded to it. See Appendix 5 for a list of States that have ratified the Convention as of July 1, 1994. 

3. The National Security Strategy of the United States, Aug. 1991, at 19 [hereinafter National Security 
Strategy], states: 

The United States has long supported international agreements designed to promote openness and 
freedom of navigation on the high seas. ... As a maritime nation, with our dependence on the sea to 
preserve legitimate security and commercial ties, freedom of the seas is and will remain a vital 
interest. . . . Recent events in the Gulf, Liberia, Somalia and elsewhere show that American seapower, 
without arbitrary limits on its . . . operations, makes a strong contribution to global stability and mutual 
security. 

4. Under the LOS Convention, articles 58 and 87, freedoms of navigation and overflight may be exercised 
in the high seas and in the exclusive economic zone. 



Maintaining Freedom of the Seas 7 

5. See Negroponte, Who Will Protect the Oceans?, DEPT ST. BULL., Oct. 1986, at 41-43; Smith, Global 
Maritime Claims, 20 Ocean Dev. & Int'l L. 83 (1989). 

6. 1979 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 997-98 [hereinafter 
DIGEST]. 

7. Negroponte, supra n. 5, at 42; U.S. Department of State, GIST: US Freedom of Navigation Program, 
December 1988 [hereinafter GIST). See also National Security Strategy, at 15; and Rose, Naval Activity in the 
Exclusive Economic Zone — Troubled Waters Ahead?, 39 Nav. L. Rev. 67, 85-90 (1990). 

8. Statement on United States Oceans Policy, Mar. 10, 1983, 1 Pub. Papers of President Reagan (1983), 
at 378-79; 22 1.L.M. 464; 77 Am. J. Int'l L. 619 (1983); DEPT ST. BULL, at 70-71 (June 1983). See Appendix 
1 for the full text of this statement. Upon signature of the LOS Convention, France expressed a similar view: 

The provisions of the Convention relating to the status of the different maritime spaces and to the 
legal regime of the uses and protection of the marine environment confirm and consolidate the general 
rules of the law of the sea and thus entitle the French Republic not to recognize as enforceable against 
it any foreign laws or regulations that are not in conformity with those general rules. 

U.N. Multilateral Treaties Deposited with the Secretary-General: Status as of Dec. 31, 1992, U.N. Doc. 
ST/LEG/SER.E/11, at 768 (1993). On depositing its instrument of ratification, Malta stated that it: 

does not consider itself bound by any of the declarations which other States may have made, or will 
make upon signing or ratifying the Convention, reserving the right as necessary to determine its position 
with regard to each of them at the appropriate time. In particular, ratification of the Convention does 
not imply automatic recognition of maritime or territorial claims by any signatory or ratifying State. 

U.N. LOS BULL., No. 23, June 1993, at 7. 

9. On September 23, 1989, the United States and the Soviet Union issued a joint statement in which 
they recognized "the need to encourage all States to harmonize their internal laws, regulations and practices" 
with the navigational articles of the 1982 LOS Convention. See Appendix 4 fcr the full text of this statement. 

10. See Aceves, Diplomacy at Sea: U.S. Freedom of Navigation Operations in the Black Sea, Nav. War Coll. 
Rev. 59 (Spring 1993). 

11. See 1 O'CONNELL, THE INTERNATIONAL LAW OF THE SEA 38-44 (1982), for a discussion of the 
significance of protest in the law of the sea. Compare: Colson, How Persistent Must the Persistent Objector Be?, 
61 Wash. L. Rev. 957, at 969 (1986): 

First, States should not regard legal statements of position as provocative political acts. They are a 
necessary tool of the international lawyer's trade and they have a purpose beyond the political, since, 
occasionally, States do take their legal disputes to court. 

Second, there is no requirement that a statement of position be made in a particular form or tone. A 
soft tone and moderate words may still effectively make the necessary legal statement. 

Third, action by deed probably is not necessary to protect a State's legal position as a persistent objector 
when that State has otherwise clearly stated its legal position. Action by deed, however, promotes the 
formation of law consistent with the action and deeds may be necessary in some circumstances to slow 
erosion in customary legal practice. 

Fourth, not every legal action needs an equal and opposite reaction to maintain one's place in the legal 
cosmos. 

Fifth, the more isolated a State becomes in its legal perspective, the more active it must be in restating 
and making clear its position. 

12. See 7 WHITEMAN, DIGEST OF INTERNATIONAL LAW 502-04 (1970) [hereinafter WHITEMAN]. 

13. Negroponte, Current Developments in U.S. Oceans Policy, DEPT ST. BULL., Sept. 1986, at 84, 85; 
Navigation Rights and the GulfofSidra, DEPT ST. BULL., Feb. 1987, at 70; Roach, Excessive Maritime Claims, 
1990 Proc. Am. Soc. Int'l L. 288, 290. Previous United States responses to excessive maritime claims are 
summarized in U.S. Department of State, Limits in the Seas No. 112 (1992). 

14. CHURCHILL & LOWE, THE LAW OF THE SEA 6-7 (2d rev. ed. 1988); O'Connell, Mid-Ocean 
Archipelagos in International Law, 45 Brit. Y.B. Int'l L. 63-69 (1975). See also Colson, supra n. 11, at 957-70; 
Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. 



8 Excessive Maritime Claims 

Int'l L.J. 457 (1985); and Charney, The Persistent Objector Rule and the Development of Customary International 
Law, 56 Brit. YB Int'l L. 1 (1986) and the sources cited therein. 

15. Gulf of Maine I.C.J. Case [Canada v. United States], U.S. Counter Memorial, paras. 235-40 [1983]. 

16. Colson, supra n. 1 1, at 964 & 969. "Passage does not cease to be innocent merely because its purpose 
is to test or assert a right disputed or wrongfully denied by the coastal State." Fitzmaurice, The Law and Procedure 
of the International Court of Justice, 27 Brit. Y.B. Int'l L. 28 (1950), commenting on the Corfu Channel Case in 
which the Court held that the United Kingdom was not bound to abstain from exercising its right of innocent 
passage which Albania had illegally denied. 1949 I.C.J. Rep. 4, 4 WHITEMAN 356. 

The Special Working Committee on Maritime Claims of the American Society of International Law has 
advised that: 

programs for the routine exercise of rights should be just that, "routine" rather than unnecessarily 
provocative. The sudden appearance of a warship for the first time in years in a disputed area at a time 
of high tension is unlikely to be regarded as a largely inoffensive exercise related solely to the 
preservation of an underlying legal position. Those responsible for relations with particular coastal states 
should recognize that, so long as a program of exercise of rights is deemed necessary to protect 
underlying legal positions, delay for the sake of immediate political concerns may invite a deeper dispute 
at a latter [sic] time. 

Am. Soc. Int'l L. Newsletter 6 (Mar.-May 1988); Nonviolent Responses to Violence- Prone Problems: The Cases of 
Disputed Maritime Claims and State- Sponsored Terrorism, Am. Soc. Int'l L. Studies in Transnational Legal Policy 
No. 22, at 5 (1991). 

17. In exercising its navigational rights and freedoms, the United States "will continue to act stricdy in 
conformance with international law and we will expect nothing less from other countries." Schachte, The 
Black Sea Challenge, U.S. Nav. Inst. Proc. 62 (June 1988). See also 1979 DIGEST 1066-69. 

18. See infra Chapter X. 

19. See infra Chapter III. 

20. Department of State Statement, Mar. 26, 1986, DEP'T ST. BULL., May 1986, at 79; Navigation Rights 
and the GulfofSidra, DEP'T OF ST. BULL., Feb. 1987, at 70. See Secretary of Defense, Annual Report to 
the President and the Congress 77-78 (1992) for a list of FON assertions conducted by DoD assets from 
October 1, 1990 to September 30, 1991, id. at 84-85 (1993) for a list of assertions by DoD assests between 
October 1 , 1991 and September 30, 1992; and id. at G-l for a list of assertions by DOD assets from October 1 , 
1992 to September 30, 1993 (1994). 

21. Some States with illegal maritime claims have since ceased to exist. The Yemens merged on May 22, 
1990. The German Democratic Republic ceased to exist on October 3, 1990. The Soviet Union broke apart 
in December 1991. On January 27, 1992, the Permanent Representative of Russia to the United Nations 
conveyed the text of the following note addressed to the heads of diplomatic missions in Moscow: 

The Russian Federation continues to exercise its rights and honour its commitments deriving from 
international treaties concluded by the Union of Soviet Socialist Republics. 

Accordingly, the Government of the Russian Federation will perform the functions formerly 
performed by the Government of the Soviet Union as depository for the corresponding multilateral 
treaties. 

In this connection, the Ministry requests that the Russian Federation be considered a party to all 
international agreements in force, instead of the Soviet Union. 

U.N. LOS BULL., No. 20, Mar. 1992, at 6 n.9; Russian MFA circular note no. 1 1/UGP dated Jan. 13, 1992, 
American Embassy Moscow telegram 001654, Jan. 17, 1992, Department of State File No. D92 0055-0637. 
The status of the maritime claims made by the Yemens, the GDR and the former Soviet Union is not certain 
in all cases. See generally, Walker, Integration and Disintegration in Europe: Reordering the Treaty Map of the Continent, 
6 Transnat'l Law. 1 (1993). 

22. In his report to the U.N. General Assembly occasioned by the tenth anniversary of the adoption of 
the LOS Convention, after reviewing the practice of States and international organizations, the Secretary- 
General concluded that: 

. . . there has been a striking convergence of practice towards accepting the concepts, principles and 
basic provisions embodied in the Convention. Such acceptance is notable, particularly in respect of 
the territorial sea, the regime of straits used for international navigation, the archipelagic waters, the 
exclusive economic zone, and the protection and preservation of the marine environment. 



Maintaining Freedom of the Seas 9 

He acknowledged the existence, however, of: 

. . . some exceptional cases where state practice is not in conformity with, or clearly deviates from the 
relevant provisions of the Convention. These are particularly in the areas of the breadth of the territorial 
sea and the nature of the coastal State's jurisdiction in the contiguous zone and the exclusive economic 
zone with respect to security, fisheries, pollution control and marine scientific research. 

He concluded his report by stressing that "the Convention has contributed significantly towards a general 
trend of harmonization of state practice in conformity with the new legal regime it has established." U.N. G.A. 
Doc. A/47/512, Nov. 5, 1992, paras. 81, 85-86, at 19-20. The Secretary-General is expected to publish in 
1994 a worldwide survey of State practice pursuant to U.N. G.A. Res. A/Res 46/78. 









Identification of Excessive Maritime Claims 1 1 



Chapter II 
Identification of Excessive Maritime Claims 



Claims by coastal States to sovereignty, sovereign rights or jurisdiction over 
ocean areas that are inconsistent with the terms of the LOS Convention 
are, in this study, called "excessive maritime claims". They are illegal in 
international law. Since World War II, more than 80 coastal States have asserted 
various maritime claims that threaten the rights of other States to use the oceans. 
These excessive maritime claims include, but are not limited to, claims incon- 
sistent with the legal divisions of the ocean and related airspace reflected in the 
LOS Convention, such as: 

• unrecognized historic waters claims; 

• improperly drawn baselines for measuring the territorial sea and other 
maritime zones; 

• territorial sea claims greater than 12 miles; 

• other claims to jurisdiction over maritime areas in excess of 12 miles, such 
as security zones, that purport to restrict non-resource related high seas freedoms; 

• contiguous zone claims at variance with Article 33 of the LOS Convention; 

• exclusive economic zone (EEZ) claims inconsistent with Part V of the LOS 
Convention; 

• continental shelf claims inconsistent with Part VI of the LOS Convention; 
and 

• archipelagic claims inconsistent with Part IV of the LOS Convention. 
Other categories of excessive maritime claims include claims to restrict 

navigation and overflight rights reflected in the LOS Convention, such as: 

• territorial sea claims that impose impermissible restrictions on the innocent 
passage of military and commercial vessels, of ships owned or operated by a State 
and used only on government noncommercial service, and of nuclear-powered 
warships (NPW) or warships and naval auxiliaries carrying nuclear weapons or 
specific cargoes; 

• claims requiring advance notification or authorization for innocent passage 
of warships and naval auxiliaries through the territorial sea or EEZ or applying 
discriminatory requirements to such vessels; 

• territorial sea claims not exceeding 12 miles in breadth that overlap straits 
used for international navigation and do not permit transit passage in confor- 
mance with the customary international law reflected in the LOS Convention, 
including submerged transit of submarines, overflight of military aircraft, and 
surface transit of warships and naval auxiliaries (including transit in a manner of 
deployment consistent with the security of the forces involved), without prior 
notification or authorization; and 



12 Excessive Maritime Claims 

• archipelagic claims that do not permit archipelagic sea lanes passage in 
conformance with international law as reflected in the LOS Convention, 
including all normal routes used for international navigation, submerged passage 
of submarines, overflight of military aircraft, and surface transit of warships and 
naval auxiliaries (including transit in a manner of deployment consistent with 
the security of the forces involved), without prior notification or authorization. 

Historic Bays 

Bays meeting international legal standards contain internal waters, navigation 
and overflight of which is subject to exclusive coastal State control. Some 
countries claim to exclude ships and aircraft from other bodies of water, 
containing territorial seas or high seas, that do not qualify as juridical bays, based 
on their historic claim to do so. To meet the international standard for 
establishing a claim to historic waters, a State must demonstrate its open, 
effective, long term, and continuous exercise of authority over the body of water, 
coupled with acquiescence by foreign States in the exercise of that authority. 
The United States takes the position that an actual showing of acquiescence by 
foreign States in such a claim is required, as opposed to a mere absence of 
opposition. The United States believes few such claims meet that standard. 

Eighteen countries claim historic bays. The United States has diplomatically 
protested 13 such claims that do not meet the international legal standard. 
Operational assertions have been conducted against seven of them: 

— Former-Soviet Union claims to Peter the Great Bay and three Arctic straits 

— Libya's claim to the Gulf of Sidra 

— Cambodia's claim to part of the Gulf of Thailand 

— Vietnam's claim to part of the Gulf of Tonkin 

— Kenya's claim to Ungwana Bay 

— Panama's claim to the Gulf of Panama 

— Dominican Republic's claim to Escocesa and Domingo Bays. 

Baselines 

The normal baseline for measuring the breadth of the territorial sea is the 
low-water line along the coast as marked on large-scale charts officially recog- 
nized by the coastal State. The low-water line is the standard location of 
baselines, and is the method used by the United States. 

Straight baselines may only be used in exceptional circumstances, in the 
particular geographic situations provided for in the 1958 Geneva Convention 
on the Territorial Sea and the Contiguous Zone, to which the United States is 
a party, and repeated in the LOS Convention. As a narrow exception to normal 
baseline rules, the LOS Convention permits the establishment of straight 
baselines in two limited geographic circumstances, that is, (a) in localities where 
the coastline is deeply indented and cut into, or (b) if there is a fringe of islands 



Identification of Excessive Maritime Claims 13 

along the coast in the immediate vicinity of the coast. Straight baselines are 
permitted in those geographic circumstances where the application of normal 
baselines would produce a complex pattern, including enclaves of territorial seas 
and high seas. Properly drawn straight baselines do not push the limits of the 
territorial sea significantly seaward from the coast which would otherwise be 
measured from the low- water line. 

More than 60 countries have delimited straight baselines along portions of 
their coast and approximately ten other countries have enacted enabling legis- 
lation but have yet to publish the coordinates or charts of their straight baselines. 
Many of these baselines have been drawn inconsistent with international law. 
The effect of an illegal straight baseline is a claim that detracts from the 
international community's right to use the oceans and superjacent airspace. One 
result has been that these straight baseline systems have created large areas of 
internal waters which legally remain either territorial seas or areas in which the 
freedoms of navigation and overflight may be exercised. Burma, for example, 
by drawing a 222-mile straight baseline across the Gulf of Martaban has claimed 
about 14,300 sq. miles (an area the size of Denmark) as internal waters which, 
absent the closing line, would be territorial seas or high seas. The United States 
has, so far, diplomatically protested 26 of those systems. Operational assertions 
have been conducted against 14 of the claims: Burma, Cambodia, Colombia, 
Cuba, Dominican Republic, Ecuador, Ethiopia, Guinea, Guinea-Bissau, Haiti, 

Q 

Mauritania, Oman, Soviet Union, and Vietnam. 

Territorial Sea Breadth 

Despite many diplomatic protests in the decades through the 1970s, the 
United States failed to prevent international acceptance of the 12-mile territorial 
sea and in 1988 the United States extended its territorial sea to 12 miles. The 
broad consensus in a 12 mile territorial sea reflected in the LOS Convention 
has led more than half the countries claiming territorial seas broader than 12 
miles to roll them back to the international standard reflected in the LOS 
Convention (see Table 5). The United States has either diplomatically protested 
or asserted its navigation rights against all 18 territorial sea claims that now exceed 
the 12-mile limit (see Table 6). Some claims have been protested more than 
once. 

Contiguous Zones 

The contiguous zone is an area seaward of the territorial sea in which the 
coastal State may exercise the control necessary to prevent or punish infringe- 
ment of its customs, fiscal, immigration, and sanitary laws and regulations that 
occur within its territory or territorial sea (but not for security purposes). The 
contiguous zone is comprised of international waters in and over which the ships 



14 Excessive Maritime Claims 

and aircraft, including warships and military aircraft, of all nations enjoy the high 

1 *\ 
seas freedoms of navigation and overflight. 

The maximum permissible breadth of the contiguous zone under interna- 
tional law is now 24 miles measured from the baseline from which the territorial 
sea is measured. 

Some sixteen countries claim the right to expand the competence of the 
contiguous zone to include protection of national security interests, and thus 
restrict or exclude warships and military aircraft, including: Bangladesh, Burma, 
Haiti, Iran, Sri Lanka, Sudan, Syria, Venezuela, Vietnam and Yemen. Syria 
claims a 35 mile contiguous zone; between 1990 and 1991 Namibia claimed a 
200 mile contiguous zone. North Korea claims a 50 mile military boundary. 
The United States has diplomatically protested 14 of those claims, and conducted 
operational assertions against the claims by Burma, Cambodia, Haiti, North 
Korea, Nicaragua, Syria, Vietnam and Yemen. 

Exclusive Economic Zones 

The 200 mile EEZ, which gained recognition in the LOS Convention, gives 
coastal States increased rights over the resources off their coasts, while curtailing 
the trend of national claims to broader territorial seas and preserving as many 
high seas freedoms as possible. Over 85 countries claim an EEZ. By virtue of its 
islands, territories and possessions, and long coastlines, the United States claims 
the largest EEZ. 

Most EEZ claims are generally consistent with the Convention's provisions 
relating to navigational freedoms. However, 20 States permit imprisonment for 
fisheries violations, contrary to the express provision of the LOS Convention. 
Further, Brazil and Uruguay do not permit foreign military exercises in their 
EEZs; and Colombia has claimed that foreign States do not have the right to 
conduct maritime counter-narcotics law enforcement operations in its EEZ, 

1 R 

asserting exclusive jurisdiction in its EEZ to enforce its narcotics laws. 

Continental Shelves 

The LOS Convention defines the continental shelf of a coastal State as 
comprising: 

the sea-bed and subsoil of the submarine areas that extend beyond its territorial 
sea throughout the natural prolongation of its land territory to the outer edge of 
the continental margin, or to a distance of 200 nautical miles from the baselines 
from which the breadth of the territorial sea is measured where the outer edge of 
the continental margin does not extend up to that distance. 

Consequently, regardless of the seabed features, a State may claim, at a 
minimum, a 200-mile continental shelf. Under other LOS Convention provi- 
sions, a State has the right to claim a 200-mile EEZ which includes jurisdictional 



Identification of Excessive Maritime Claims 1 5 

rights over the living and nonliving resources of the seafloor and seabed. Thus, 
for those States whose physical continental margin does not extend farther than 
200 miles from the territorial sea baseline, the concept of the continental shelf 
is of less importance than before. 

Paragraphs 3-7 of Article 76, which provide a rather complex formula for 
defining the "continental shelf', apply only to States that have physical con- 
tinental margins extending more than 200 miles from the coast. It seems widely 
accepted that the broad principles of the continental shelf regime reflected in 
the 1982 LOS Convention, Articles 76-81, were established as customary 
international law by the broad consensus achieved at the Third United Nations 
Conference on the Law of the Sea (UNCLOS III) and the practice of nations. 

Since the mid-1970s, several countries have made general claims to the 
continental shelf that exceed the provisions of the LOS Convention. The 
Governments of Guyana, India, Mauritius, Pakistan and the Seychelles, for 
example, enacted statutes which purport to assert jurisdiction over any act on 
their continental shelves, contrary to international law. The United States has 
protested these claims, as well as those of Ecuador and Chile to continental 
shelves beyond 200 miles in the vicinity of the Galapagos, Easter and Sala Y 
Gomez Islands. 

Archipelagos 

The law of the sea first recognized a special regime for archipelagic States in 
the LOS Convention. By definition, an archipelagic State is a State "con- 
stituted wholly by one or more archipelagos and may include other islands". An 
archipelago is defined in the LOS Convention as: 

a group of islands, including parts of islands, inter-connecting waters and other 
natural features which are so closely interrelated that such islands, waters and other 
natural features form an intrinsic geographical, economic and political entity, or 
which historically have been regarded as such. 

Until a State claims archipelagic status, the normal baseline is the low-water 
line around each island. Consequently, there may exist large areas of international 
waters between the islands of the archipelago. However, an archipelagic State 
is entitled to draw straight archipelagic baselines around the outermost islands 
of the archipelago, and to measure its territorial sea seaward of those baselines. 
Its sovereignty then extends to the archipelagic waters thereby enclosed. 

Fourteen States have claimed archipelagic status: Antigua and Barbuda, Cape 
Verde, Comoros, Fiji, Indonesia, Kiribati, Marshall Islands, Papua New Guinea, 
Philippines, Saint Vincent and the Grenadines, Sao Tome and Principe, Solo- 
mon Islands, Trinidad and Tobago, and Vanuatu. In addition, The Bahamas has 
legislation pending to make such a claim. The United States worked closely with 
a number of island nations, including The Bahamas, Fiji and Indonesia, during 



16 Excessive Maritime Claims 

UNCLOS III to develop a set of reasonable parameters for the archipelagic 
regime. On the other hand, despite its public commitment to conform its claim 
to the provisions of the LOS Convention which it has ratified, the Philippines 
continues to claim as archipelagic waters large areas of the Pacific to which it is 
not entitled under the LOS Convention. 

While the Convention definition was drafted to exclude continental States 
with offshore groups of islands, Canada,Denmark, Ecuador, Portugal and Sudan 
have sought to enclose their islands (Arctic, Faroes, Galapagos, Azores and the 
Suakin Archipelago, respectively) with straight baselines in a manner simulating 
an archipelago. The United States has protested these efforts. No independent 
island nation has claimed archipelagic status to which it is not entitled under the 
LOS Convention. 

Innocent Passage in the Territorial Sea 

One of the fundamental tenets in the international law of the sea is the right 
enjoyed by all ships, including warships, regardless of cargo, armament or means 
of propulsion, to innocent passage through another State's territorial sea, in 
accordance with international law, for which neither prior notification nor 
authorization is required. 

This right is not fully accepted by all coastal States. For example, over 30 States 
require either prior permission or prior notice. The United States has diplomatically 
protested all but four of them, and conducted operational assertions against 27 of 
those countries (see Table 10). A number of States have rolled back these claims as 
a result of the FON program. In 1979, Turkey instituted a requirement for foreign 
warships to give it notice before exercising innocent passage in its territorial sea. 
The United States diplomatically protested in 1979, and in 1983 Turkey lifted that 
requirement. Between 1931 and 1983 the Soviet Union required warships to obtain 
prior permission before entering the Soviet territorial sea. Between 1983 and 1989 
the Soviet Union limited warships' right of innocent passage to five designated sea 
lanes. As a result of the LOS discussions following the Black Sea bumping incident 
in 1988, the Soviet Union conformed its claims to international law, and Russia has 
committed itself to continue that position. 

Five States apply special requirements not recognized by international law for 
the innocent passage of nuclear powered warships and naval auxiliaries carrying 
nuclear weapons: Djibouti, Egypt, Oman, Pakistan and Yemen. The United 
States has diplomatically protested all of these claims and conducted operational 
assertions against the claims of Oman, Pakistan and Yemen. 

International Straits 

During the time that the maximum permissible breadth of the territorial sea 
was three miles, over 100 straits connecting one part of the high seas with another 
part of the high seas contained a high seas route. Consequently, the ships and 



Identification of Excessive Maritime Claims 17 

aircraft of all nations had the uncontested right to pass through such strategically 
important straits as Gibraltar, Hormuz, Bab el Mandeb, Lombok and Malacca, 
regardless of the political unpopularity of their mission. Consequently, there was 
no difficulty with the United States' use of the Strait of Gibraltar to airlift support 
to Israel when she was attacked in October 1973. 

These critical straits are, however, less than 24 miles wide at their narrowest 
point. To maintain maritime mobility, a condition for U.S. acceptance of a 
broader 12 mile territorial sea was a guaranteed legal right for U.S. ships and 
aircraft to continue to be able to transit, without coastal State interference, those 
straits. That right is codified in the LOS Convention as the right of transit 
passage. It was because of this right that U.S. aircraft were able again to fly 
through the Strait of Gibraltar without protest, when USAF aircraft flew from 
British bases for the April 1986 attack on Libya. 29 In 1973 and in 1986 the littoral 
NATO nations refused to grant the U.S. permission to overfly their land for 
these missions. 

Few States have explicitly accepted the transit passage regime of the LOS 
Convention as customary international law. Even the United Kingdom has 
been reluctant to do so before the Convention is universally accepted. 
Other States claim the right of transit passage is available only to the signatories 
of the LOS Convention, or otherwise seek to restrict the right by imposing 
conditions on its use not authorized by the terms of the LOS Convention. The 
United States has diplomatically protested all of these claims, and conducted 
assertions of right against Iran, Oman, Spain, the USSR and Yemen. In 1988, 
when Indonesia closed Sunda and Lumbok Straits for a brief period of time, 
the United States, United Kingdom and Australia made very strong demarches, 
and, so far, it has not been repeated. 

Overflight Restrictions 

States with territorial sea claims greater than 12 miles, or with illegal 
straight baseline claims, frequently seek to prevent overflight by foreign 
aircraft of the international waters (i.e., waters beyond 12 miles from properly 
drawn baselines) that they claim as territorial sea. In 1985, two Cuban 
MiG-21s intercepted a U.S. Coast Guard HU-25A aircraft operating more 
than 12 miles offshore. In August 1986, Ecuador interfered with the flight of 
a U.S. Air Force aircraft flying more than 175 miles seaward from the 
Ecuadoran coast. In 1973, Libya established a restricted area of airspace within 
100 miles of Tripoli. In August 1986, Peru claimed that a USAF C-141, 80 
miles off shore, did not receive permission to fly into Peruvian-claimed 
airspace. Several similar incidents involving USAF aircraft occurred in 1987, 
1988 and 1992. Greece restricts the use of international airspace four miles 
seaward of its six mile territorial sea. Nicaragua requires clearance for 



18 Excessive Maritime Claims 

overflight of its 200 mile territorial sea. The United States has protested all of 
these claims, and conducted assertions of right against them all. 

Archipelagic Sea Lanes Passage 

A number of strategically important international navigation routes pass 
through Indonesian and Philippine archipelagic waters. A condition for U.S. 
acceptance of the archipelago concept was a legal guarantee that freedoms of 
navigation and overflight be maintained in and over the waters between the 
islands of the archipelago. That right was documented in the LOS Convention 
as archipelagic sea lanes passage, which incorporates most of the essential 
elements of the transit passage regime of non-archipelagic international straits. 
All ships and aircraft, including warships and military aircraft, enjoy the right of 
archipelagic sea lanes passage while transiting through, under, or over the waters 
of archipelagos and adjacent territorial seas via archipelagic sea lanes. Those sea 
lanes include all routes normally used for international navigation and overflight, 
whether or not designated by the archipelagic State. 

Indonesia was the first State to suggest it might seek to exercise its right to 
designate sea lanes suitable for the continuous and expeditious passage of foreign 
ships through its archipelagic waters. Although such sea lanes are required to 
include all normal passage routes and all normal navigational channels, the 
Indonesian Navy is seeking to limit them to a mere three routes, all north-to- 

-in 

south. The Philippines continues to refuse to recognize the Convention's 
archipelagic regime notwithstanding its ratification of the LOS Convention and 
public international commitment to reverse its view that the Philippine ar- 
chipelagic waters are akin to internal waters wherein foreign ships may not 
navigate, and aircraft may not overfly, without Philippine permission. The 
Philippines refused to repeat that commitment in the 1992 military bases 
negotiations, while continuing the long-standing permission for U.S. forces to 
operate freely in Philippine waters. The base agreement having expired, 
operational assertions of right are now necessary to maintain U.S. freedom of 
navigation and overflight there. 

United States responses to these claims are described in greater detail in the 
following chapters, which are organized along the lines of the foregoing listing. 
Responses of other States are included where they are known. 

Notes 

1. LOS Convention, article 10. 

2. See infra Chapter III. 

3. LOS Convention, article 5. 

4. Convention on the Territorial Sea and the Contiguous Zone, Geneva, Apr. 29, 1958, article 4, 15 
U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205 [hereinafter, 1958 Territorial Sea Convention]. 

5. LOS Convention, article 7. 

6. LOS Convention, article 7; 1958 Territorial Sea Convention, article 4(1). 



Identification of Excessive Maritime Claims 1 9 

7. See infra Chapter IV. 

8. See infra Chapter IV. 

9. See 4 WHITEMAN, DIGEST OF INTERNATIONAL LAW 61, 91, 115-19 (1965) [hereinafter 
WHITEMAN]. 

10. See infra Chapter V and Appendix 3. 

11. LOS Convention, article 3. 

12. LOS Convention, article 33; 1958 Territorial Sea Convention, article 24. 

13. LOS Convention, articles 33, 58 & 87. 

14. LOS Convention, article 33(2). 

15. See infra Chapter VI. 

16. See infra Chapter VII. 

17. See infra Chapter VII n. 26. 

18. See infra Chapter XIV. 

19. LOS Convention, article 76(1). 

20. See infra Chapter VIII. 

21. See LOS Convention, Part IV. 

22. LOS Convention, article 46. 

23. LOS Convention, articles 46-48. 

24. See generally infra Chapter IX. 

25. See infra Chapter X. 

26. Gelb, U.S. Jets for Israel Took Route Around Some Allies, N.Y. Times, Oct. 25, 1973, sec. 1, at 1, col. 2; 
Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 Am. J. Int'l L. 77, 
84 (1980); Robertson, Passage Through International Straits: A Right Preserved in the Third United Nations Conference 
on the Law of the Sea, 20 Va. J. Int'l L. 801, 841 n.198 (1980). 

27. 1974 Digest of United states practice in International Law 279 [hereinafter 

DIGEST]; Stevenson & Oxman, The Third United Nations Conference on the Law of the Sea: The 1974 Caracas 
Session, 69 Am. J. Int'l L. 1, 14, 15 (1975). 

28. LOS Convention, article 38. 

29. Treves, Codification de Droit International et Pratique des Etats dans le Droit de la Mer, 223 Recueil des 
Cours 131-32 (1990-IV, 1991). See further, Chapter XI infra, text accompanying nn. 45-59. 

30. DEP'T ST. BULL. June 1986 at 5, 10; Parks, Crossing the Une, U.S. Nav. Inst. Proc. 49-51 (Nov. 
1986); MARTIN & WALCOTT, BEST LAID PLANS 292-93, 303 (1988); REAGAN, AN AMERICAN LIFE 
519 (1990); WEINBERGER, FIGHTING FOR PEACE 193 (1990); CROWE, THE LINE OF FIRE 137 (1993). 

31. See, e.g., 59 Brit. Y.B. Int'l L. 525 (1989); 58 Brit. Y.B. Int'l L. 600-01 (1987). See also infra Chapter 
XI text accompanying nn. 19-21. 

32. See infra Chapter XI, text accompanying nn. 99-100. 

33. See infra Chapter XII. 

34. 1974 DIGEST at 287-88; 1978 DIGEST at 943. 

35. LOS Convention, article 53(2). 

36. LOS Convention, article 53(12). 

37. IMO Subcommittee on Safety of Navigation, Report to the Maritime Safety Committee, IMO 
document NAV/37/25, para. 3.2.9, Oct. 4, 1991. 

38. LOS Convention, article 53(12). 

39. RADM Abdul Hakim, A Proposal in the [Eighth] International Conference on SLOC [Sea Lanes of 
Communication], Bali, Indonesia, Jan. 26, 1993. 

40. This was one issue, among others, contributing to the U.S. decision to withdraw its military forces 
from the Philippines and to permit the Military Bases Agreement to expire in late 1992. See 3 U.S. Department 
of State Dispatch 824, Nov. 16, 1992. 



PART TWO 



LEGAL DIVISIONS OF THE OCEANS AND AIRSPACE 



Historic Waters 23 



Chapter 
Historic Waters 



Criteria 

To meet the international standard for establishing a claim to historic waters, 
a State must demonstrate its open, effective, long term, and continuous exercise 
of authority over the body of water, coupled with acquiescence by foreign States 
in the exercise of that authority. The United States has taken the position that 
an actual showing of acquiescence by foreign States in such a claim is required, 
as opposed to a mere absence of opposition. 

United States Waters 

The United States Supreme Court has found the waters of Mississippi 
Sound and Long Island Sound to be historic for purpose of disputes 
between the United States federal government and the coastal states regarding 
ownership of the seabed of the Sounds. The U.S. Supreme Court has held that 
certain other bodies of U.S. waters do not meet the criteria for historic waters. 
These include Cook Inlet, Alaska; Santa Monica and San Pedro Bays, 
California; Florida Bay; numerous bays along the coast of Louisiana; 
Block Island Sound; and Nantucket Sound, Massachusetts. 

Foreign Waters Considered Not to Be Historic 

Table 1 lists known claims to historic waters and actions taken by the United 
States. Following Table 1 is a description of several claims to historic waters that 
have been protested by the United States. 



State 
Argentina 

Australia 

Cambodia 

Canada 

Dominican 
Republic 



Body of Water 
Rio de la Plata 

Anxious, Rivoli, 
Encounter, Lacepede 
Bays 



Table 1 






Claims Made to Historic Bays 








U.S. 


U.S. 


Law and Date of Claim 


Protest 


Assertion 3 



Joint Declaration with 
Uruguay, Jan. 30, 1961 

Proclamation March 31, 1987 



Part of Gulf of Thailand Agreement with Vietnam 

July 7, 1982 

Hudson Bay Amendment to Fisheries Act 

July 13, 1906 

Samana, b Ocoa, b Neiba b Law No. 3342, July 13, 1952 
Bays 



1963 



1991 



1987 



1906 



24 Excessive Maritime Claims 



State 



Body of Water 



Dominican Escocesa & Santo 

Republic Domingo Bays 

Egypt BayofelArab c 

El Salvador Gulf of Fonseca 

Honduras Gulf of Fonseca 



Table 1 (Cont.) 



Law and Date of Claim 
Act No. 186, Sep. 13, 1967 



U.S. 
Protest 



U.S. 
Assertion 3 

1991 



Embassy Note June 4, 1951 1951 

Const. Amend. 1946, art. 3; 
Const, art. 84, Dec. 13, 1983 

Constitution of 1982, art. 10 



India 


Gulf of Mannar 


Law No. 41, June 1, 1979 


1983 


1993 




Palk Bay 


Agreement with Sri Lanka, 
June 28, 1974 


1983 




Italy 


Gulf of Taranto 


Presidential Decree No. 816, 
April 26, 1977 


1984 e 




Kenya 


Ungwana Bay 


Territorial Waters Act, 
May 16, 1972 




1990 


Libya 


Gulf of Sidra 


Foreign Ministry Note Ver- 
bale MQ/40/5/1/3325, Oct. 
11, 1973 


1974 e 


1981 e 


Panama 


Gulf of Panama 


Law No. 9, Jan. 30, 1956 


1956 e 




Soviet 


Peter the Great Bay 


Decree July 20, 1957 


1957 e 


1982 e 


Union 


Laptev, Demitri, 
Sannikov Straits 


Aide Memoire July 21, 1964 


1965 


1984 e 


Sri Lanka 


Palk Bay 

Palk Bay, Palk Strait, 


Agreement with India 
June 28, 1974 
Proclamation Jan. 15, 1977 







Gulf of Mannar 
Thailand Part of Gulf of Thailand 
Uruguay Rio de la Plata 

Vietnam Part of Gulf of Thailand 

Gulf of Tonkin 



Decree, Sept., 22, 1959 

Joint Declaration with 1963 e 

Argentina, Jan. 30, 1961 

Agreement with Cambodia, 1987 

July 7, 1982 

Statement, Nov. 12, 1982 1982 



Operational assertion of right by U.S. naval and/or air forces of internationally recognized 
navigational rights and freedoms against excessive maritime claim. 

Now qualifies as a juridical bay. 

Not maintained. 

Historic status confirmed by ICJ in El Salvador v. Honduras, 1992 ICJ Rep. 351, para. 432 at 
616-17. 

More than one protest or assertion against this claim. 



Source: U.S. Department of State, Office of Ocean Affairs. 



Historic Waters 25 

Argentina and Uruguay - Rio de la Plata: 

Some authorities have stated that the Rio de la Plata estuary is a historic bay 
(see Map 1). However, in drawing a straight line across the mouth of the 
estuary, the joint Declaration of the Governments of Argentina and Uruguay of 
January 30, 1961 did not assert an historic claim to the Rio de la Plata. Rather, 
the Declaration took into account the provisions of Article 13 of the 1958 
Geneva Convention on the Territorial Sea and the Contiguous Zone regarding 
river closing lines. 

Map 1 




SOUTH 

ATLANTIC 

OCEAN 



Names and boundary representation 
are not necessarily authoritative 



Argentina and Uruguay 

Historic Water Claim to 

the Rio de la Plata 

Joint Declaration, 
January 30, 1961 



-ZTS 



597/ 

-J 



58-W 



On January 23, 1963 the United States protested on the grounds that the 
Declaration ran counter to international law and that Article 13 "relates to rivers 
which flow directly into the sea which is not the situation of the River Plate 
which flows into an estuary or bay". 



Australia - Anxious, Encounter, Lacepede and Rivoli Bays 

In 1987, Australia declared that Anxious, Encounter, Lacepede and Rivoli 
Bays, in South Australia, were historic bays, and drew straight baselines across 
the mouths of those bays which did not meet the criteria for juridical bays: In 



26 Excessive Maritime Claims 

1991, the United States protested this claim, in a note, which after reciting the 
internationally accepted criteria for establishing claims to historic bays, stated: 

Prior to the issuance of the 19 March 1987 Proclamation, the United States 
was not aware of any claim by the Government of Australia that these bays were 
historic, nor was such a claim mentioned in the United Nations Secretariat study 
on historic bays, published in 1957 as UN Document A/CONF. 13/1 and in 1958 
in volume I: Preparatory Documents of the first United Nations Conference on 
the Law of the Sea, UN Doc. A/CONF. 13/37, at pages 1-38, or in any other 
compilation of historic bay claims of which the United States is aware. 

Having reviewed the evidence submitted by the Government of Australia to 
support these claims, the United States regrets that it is unable to agree that 
Anxious, Encounter, Lacepede and Rivoli Bays meet the requirements of inter- 
national law for historic bays and reserves its rights and those of its nationals in 
that regard. 

The United States notes that effective 20 November 1990 the Government of 
Australia extended its territorial sea from three to twelve nautical miles. The 
United States is of the view that, with the increased coastal State maritime 
jurisdiction now permitted under customary international law reflected in the 
1982 United Nations Convention on the Law of the Sea and other rules of 
international law reflected therein, no new claim to historic bays or historic waters 
is needed to meet resource and security interests of the coastal State. 13 

Cambodia and Vietnam - Gulf of Thailand 

On July 7, 1982, Cambodia and Vietnam signed an agreement which, in part, 
made claim to a part of the Gulf of Thailand as historic waters. The United 
States protested this claim in a note to the UN Secretary-General, as follows: 

Under the terms of this agreement the parties purportedly claim as historic 
certain waters in the Gulf of Thailand extending from the mainland to Tho Chu 
and Poulo Wai Islands. 

As is well known under longstanding standards of customary international law 
and State practice, historic waters are recognized as valid only if the following 
prerequisites are satisfied: (a) the State asserting claims thereto has done so openly 
and notoriously; (b) the State has effectively exercised its authority over a long 
and continuous period; and (c) other States have acquiesced therein. 

In the case of the historic waters claim made by the parties to the above 
agreement, the claim was first made internationally no earlier than July 7, 1982, 
less than five years ago, notwithstanding the assertion in the agreement that the 
waters "have for a very long time belonged to Vietnam and Kampuchea [Cam- 
bodia] due to their special geographical conditions and their important significance 
towards each country's national defense and economy." 



Historic Waters 27 

The brief period of time since the claim's promulgation is insufficient to meet 
the second criterion for establishing a claim to historic waters, and there is no 
evidence of effective exercise of authority over the claimed waters by either 
country before or after the date of the agreement. Moreover, without commenting 
on the substantive merits or lack thereof attaching to the "special geographical 
conditions" of the waters in question and their "important significance towards 
each country's defense and economy," such considerations do not fulfill any of 
the stated customary international legal prerequisites of a valid claim to historic 
waters. 

Finally, the United States has not acquiesced in this claim, nor can the 
community of States be said to have done so. Given the nature of the claim first 
promulgated in 1982, such a brief period of time would not permit sufficient 
acquiescence to mature. 

Therefore, the United States views the historic claim to the waters in question 
as without foundation and reserves its rights and those of its nationals in this 
regard. 5 

India and Sri Lanka - Gulf of Mannar and Palk Bay 

On June 1, 1979, India claimed as historic the waters of the Gulf of Mannar 
(see Map 2) between the coast and its maritime boundary with Sri Lanka. The 
United States protested this claim, among other Indian maritime claims, in a 
note to the Indian Ministry of External Affairs on May 13, 1983. 

Italy - Gulf of Taranto 

As part of its 1977 decree establishing straight baselines for portions of the 

Italian coast, Italy for the first time claimed the Gulf of Taranto as an historic 

1 ft 
bay (see Map 3). During bilateral discussions with the Italian government in 

1 984, the United States stated its view that the Gulf of Taranto could not be 

considered an historic bay since the requirements for such status were not met. 

The United States noted that "a coastal State claiming such status for a body of 

water must over a long period of time have openly and continually claimed to 

exercise sovereignty over the body of water, and its claims must have resulted 

in an absence of protest of foreign States, amounting to acquiescence on their 

lo^- " 19 
part. 

Libya - GulfofSidra 

In 1973 Libya's Foreign Ministry circulated a note claiming the GulfofSidra 
as Libyan internal waters. The Gulf was defined by a closing line, approximately 
300 miles long, along the 32° 30' parallel of north latitude (see Map 4). 20 The 
United States first protested this claim in 1974. 21 In a 1985 note to the 
Secretary-General of the United Nations, the United States reiterated "its 
rejection of the Libyan claim that the Gulf of Sidra constitutes internal waters 



28 Excessive Maritime Claims 



Map 2 



INDIA - SRI LANKA MARITIME BOUNDARY 




Map 3 



Historic Waters 29 



Italy's Historic Bay Claim: Gulf of Taranto 




30 Excessive Maritime Claims 

to the latitude of 32 degrees 30 minutes North," and rejected "as an unlawful 
interference with the freedoms of navigation and overflight and related high seas 
freedoms, the Libyan claim to prohibit navigation" in the Gulf. 

Map 4 




E E *C a< E 

00 <s> 



Mediterranean 
Sea 





EGYPT 



Libya's Claim to 
the Gulf of Sidra 



LIBYA 



In December 1986, the U.S. Department of State, Bureau of Public Affairs, 
published "Navigation Rights and the Gulf of Sidra," in GIST, a reference aid 
on U.S. foreign relations. The study discussed the history of U.S. responses, 
dating to the 18th century, to attempts by North African States to restrict 
navigation in these waters. The GIST stated, in part, that: 

Current law and customs: By custom, nations may lay historic claim to those bays 
and gulfs over which they have exhibited such a degree of open, notorious, 
continuous, and unchallenged control for an extended period of time as to 
preclude traditional high seas freedoms within such waters. Those waters (closed 
ofFby straight baselines) are treated as if they were part of the nation's land mass, 
and the navigation of foreign vessels is generally subject to complete control by 
the nation. Beyond lawfully closed-ofF bays and other areas along their coasts, 
nations may claim a "territorial sea" of no more than 12 nautical miles in breadth 
(measured 1 2 miles out from the coast's low water line — or legal straight baseline) 
within which foreign vessels enjoy the limited navigational "right of innocent 



Historic Waters 31 

passage." Beyond the territorial sea, vessels and aircraft of all nations enjoy freedom 
of navigation and overflight. 

Since Libya cannot make a valid historic waters claim and meets no other 
international law criteria for enclosing the Gulf of Sidra, it may validly claim a 
12-nautical mile territorial sea as measured from the normal low- water line along 
its coast. Libya also may claim up to a 200-nautical mile exclusive economic zone 
in which it may exercise resource jurisdiction, but such a claim would not affect 
freedom of navigation and overflight. (The U.S. has confined its exercises to areas 
beyond 12 miles from Libya's coast.) 23 

Panama - Gulf of Panama 

In 1956, the United States protested the unilateral declaration contained in 
Panamanian Law No. 9 of January 30, 1956, purporting to confirm and 
implement Panama's claim that it exercises sovereignty over the Gulf of Panama 
as an historic bay. The note reads in part as follows: 

Particular note has been taken by my Government of the statements that "the 
Republic of Panama and its predecessors . . . have been exercising sovereignty 
over the waters of the Gulf of Panama in the Pacific Ocean from time im- 
memorial" and that "the territorial character of the Gulf under reference and the 
exercise of Panamanian sovereignty over it always has had the tacit acquiescence 
of all states." 

The Government of the United States avails itself of this opportunity to take 
exception both to the operative provisions of Law No. 9 and the thesis on which 
they are based insofar as this measure purports to claim or confirm any general 
jurisdiction by Panama over waters of the Gulf of Panama . . . 

My Government submits that the Gulf of Panama does not qualify as a historic 
bay under international law. This body of water has never enjoyed the character 
of a historic bay, whether by immemorial claim or by treatment as such by the 
community of nations. The Gulf of Panama was not recognized as a historic bay 
at the time of the separation of Panama from Colombia, and nothing that has 
occurred subsequently has been of a character to give the Gulf of Panama the 
character of a historic bay. 

Accordingly, my Government cannot accept the unilateral declaration con- 
tained in Law No. 9 as resulting in giving the Gulf of Panama the character of a 
historic bay. 25 

USSR - Peter the Great Bay 

The former Soviet Union first claimed Peter the Great Bay as historic in a 
1957 Decree. The United States, and other countries, immediately protested. 
The 106-mile closing line is, at one point, more than 20 miles from any land 



32 Excessive Maritime Claims 

territory, and 47 miles seaward from Vladivostok, an important Soviet naval base 
(see Map 5). 

Map 5 



Names ond boundory representation I ^~p 
ore not necessorily outhoritative *. S 


n . \ /u.S.S.R. 
China .1 / 


J Jr^ . J% 


i # Mrf 


.i/^-? ( : W ^ }■"■■■ 


£# if ^ ,-# -^r* '•' Zaliv Petra % % : £%- ■ - J^ 
i 3 L f 1 Velikogo <$ H/ X:: ,}^^ 
? ^\^"^\Cr%Ni>^^ f (Peter 7he Greot — M>s p ovor otnyy 

? lO 3 ^CC'^^ T? ^Jv """"*' ("Cope Povorotnyy) 

North .^mi , — cw,m 


K T e a _/y Soviet Claimed Historic Bay: 


fj Sea of 


Peter The Great Bay 


■W Japan 


July 21, 1957 Council of Ministers' Decree 


1 


ond 


j** 20 40 60 


Februory 7, 1989 Council of Ministers' Decree 
' V 









Following an incident involving USS Lockwood (FF-1064) on May 3, 1982, 
the United States renewed its protest of the Soviet claim that Peter the Great 
Bay was an historic bay. The U.S. note read in part as follows: 

. . . refers to an incident of May 3, 1982, when a warship of the United States 
of America was approached by naval units of the Union of Soviet Socialist 
Republics while navigating on the high seas in the vicinity of Peter the Great Bay, 
and was ordered to leave what the Soviet naval units referred to as waters of the 
Soviet Union. 



In light of this incident, the Government of the United States of America wishes 
to state again its objection to the claim by the Government of the Union of Soviet 



Historic Waters 33 

Socialist Republics that the waters of Peter the Great Bay landward of a line drawn 
between the mouth of the river Tyumen-Ula and the Povorotny promontory are 
internal waters of the Soviet Union. As the Government of the United States of 
America informed the Government of the Union of Soviet Socialist Republics in 
its Diplomatic Note of August 12, 1957, and reiterated in its note of March 6, 
1958, there is no basis in international law for the unilateral claim to all the waters 
of Peter the Great Bay landward of the aforementioned line as internal waters of 
the Soviet Union. It continues to be the view of the Government of the United 
States of America that the claim that this large body of water is comprised of 
internal waters cannot be geographically or historically justified in international 
law. 28 

USSR - Northeast Passage 

The United States conducted oceanographic surveys of the Arctic north of 
the former Soviet Union in the summers of 1963 and 1964. During 1964, USS 
Burton Island (AGB-1) collected data in the East Siberian Sea. On July 21, 1964, 
the Soviet Union presented an aide memoire to the United States regarding this 
survey in which it was claimed that "the Dmitry, Laptev and Sannikov Straits, 
which unite the Laptev and Eastern-Siberian Seas ... belong historically to the 
Soviet Union." 

In response, the United States stated: 

So far as the Dmitry, Laptev and Sannikov Straits are concerned, the United States 
is not aware of any basis for a claim to these waters on historic grounds even 
assuming that the doctrine of historic waters in international law can be applied 
to international straits. 

Vietnam - Gulf of Tonkin 

In addition to claiming part of the Gulf of Thailand as historic waters (see 
Cambodia and Vietnam above), in 1982 Vietnam also claimed a part of the Gulf 
of Tonkin as its historic waters (see Map 10). In December 1982, the United 
States protested the claim as follows: 

The Government of the Socialist Republic of Vietnam also claimed that a part 
of the Gulf of Tonkin, not clearly defined, constitutes historic waters of the 
Socialist Republic of Vietnam in which the legal regime of internal waters applies. 
The Government of the United States wishes to state that international law 
requires certain standards to be met before a claim to historic waters can be 
established. These standards are not met in this case and, therefore, it is the view 
of the Government of the United States of America that there is no basis for the 
aforementioned claim by the Government of the Socialist Republic of Vietnam 
to a part of the Gulf of Tonkin. 32 

In analyzing Vietnam's claim, the Office of the Geographer of the Department 
of State wrote: 



34 Excessive Maritime Claims 

The occurrence of claims to historic bays that are shared by more than one 
state is even less common than the relatively small number of single states claiming 
historic bays. 

The general norms for the concept of an historic bay ... and the few case studies 
of bays bordered by more than one state suggest that, at a minimum, the states 
bordering the bay must all agree that the bay is an "historic bay." The Vietnamese 
claim to historic waters is questionable because China, which also borders the Gulf 
of Tonkin, does not claim the gulf as historic waters and disputes the Vietnamese 
claim to the meridional boundary within the Gulf. 33 

Historic Bay Claims Rolled Back 

Bays now qualifying as juridical bays 

Historic bay claims were frequendy advanced in previous years because their 
mouths were too wide to qualify as juridical bays. Prior to 1958, while there was 
general agreement on the three-mile territorial sea, there was no agreement as to 
the maximum length of a closing line of a juridical bay. However, the 24-mile 
closing line rule was fixed for juridical bays in the 1958 Geneva Convention on the 
Territorial Sea and the Contiguous Zone and has remained unchanged since then. 
The U.S. Supreme Court has found that Long Island Sound constitutes a 
juridical bay on that basis. Both Chesapeake Bay (with a 12 mile wide mouth) 
and Delaware Bay (with a 10 mile wide mouth) now qualify as juridical bays, 
notwithstanding earlier assertions they were internal waters of the United States. 
Similarly, the Gulf of Amatique, which Guatemala claimed as historic in 1940, 
now qualifies as a juridical bay, as do Samana, Ocoa and Neiba Bays claimed by 
the Dominican Republic as historic in 1952. 

Egypt - Bay of El-Arab 

This body of water, on Egypt's Mediterranean coast, is 75 miles wide at its 
opening to the sea and penetrates 18 miles into the mainland. It does not qualify 
as a juridical bay and may be better classified as a bight. In a letter to the League 
of Nations of 28 July 1928, Egypt noted it claimed a three mile territorial sea 
"except as regards the Bay of El Arab, the whole of which is, owing to its 
geographical configuration regarded as territorial waters." In 1951 an Egyptian 
decree stated that the inland waters of Egypt includes "all the waters of the bays 
along the coasts of the Kingdom of Egypt," without mentioning the Bay of 
El- Arab. This claim was protested by the United States and the United Kingdom 
in 1951. The British protest stated that no historic bays are "situated in Egypt". 
In 1990 Egypt promulgated the coordinates of straight baseline along its coast. 
No mention was made of this historic claim in the decree. The straight baseline 
in the Bay of El Arab is well within the "mouth" of the bay, being no more 

TO 

than 6 miles offshore at its furthest. 



Historic Waters 35 
Notes 

1 . 1973 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 244-45 (1974) [herein- 
after DIGEST]; Goldie, Historic Bays in International Law — An Impressionistic Overview, 11 Syracuse J. Int'l L. 
& Com. 205, 221-23, 248 & 259 (1984). See also 4 WHITEMAN, DIGEST OF INTERNATIONAL LAW 233-58 
(1965) [hereinafter WHITEMAN]. So-called historic bays are not determined by the semicircle and 24-nautical 
mile closure line rules applicable to juridical bays (which are discussed in Chapter IV). Territorial Sea 
Convention, article 7(6); LOS Convention, article 10(6). The I.C.J, takes the view that general international 
law: 

does not provide for a single "regime" for "historic waters" or "historic bays", but only for a particular 
regime for each of the concrete, recognized cases of "historic waters" or "historic bays". 

Continental Shelf (Tunisia/Libya), 1982 I.C.J. Rep. 74, quoted with approval in Dispute (El Salvador/Hon- 
duras) (Judgment), 1992 I.C.J. Rep., at 589. 

2. United States v. Louisiana et al. (Alabama and Mississippi Boundary Case), 470 U.S. 93 (1985). 

3. United States v. Maine et al. (Rhode bland & New York Boundary Case), 469 U.S. 504, 509 (1985). 

4. United States v. Alaska, 422 U.S. 184 (1975). 

5. United States v. California, 381 U.S. 139, at 173-75 (1965). 

6. United States v. Florida, 420 U.S. 531, 533 (1975). 

7. Louisiana Boundary Case, 420 U.S. 529 (1975). 

8. United States v. Maine et al., supra n. 3, at 509 n.5. 

9. Massachusetts Boundary Case, 475 U.S. 89 (1986). In the Florida, Massachusetts and Louisiana cases, 
the Supreme Court adopted the recommendations of its Special Masters. Their Reports, containing the primary 
analysis of these waters, can be found in KOESTOR AND BRISCOE, THE REPORTS OF THE SPECIAL 
MASTERS OF THE UNITED STATES SUPREME COURT IN THE SUBMERGED LANDS CASES, 1949-1987 
(1992). 

10. See, e.g., the 1910 dissenting opinion of Luis M. Drago in the North Atlantic Coast Fisheries Case (U.K. 
v. U.S.), reprinted in SCOTT, THE HAGUE COURT REPORTS 199-200 (1916); III GlDEL, LE DROIT 
INTERNATIONAL PUBLIC DELA MER 653-54 (1934); Historic Bays, U.N. Doc. A/CONF.13/1, para. 43, 
reprinted in 1 U.N. Conference on the Law of the Sea, Official Records 8, U.N. Doc. A/CONF.13/37. 

11. 15 U.S.T. 1606, 1610; T.I.A.S. No. 5639. Article 13 provides that "if a river flows direcdy into the 
sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of 
its banks." 

12. 57 Am. J. Int'l L. 403-04 (1963); 4 WHITEMAN 342-43. The United Kingdom (on Dec. 26, 1961) 
and the Netherlands (on June 26, 1962) also protested the Declaration for the same reasons. 4 WHITEMAN 
343. Previously, on March 16, 1908, the United Kingdom had protested Uruguay's claim to treat the River 
Plata as territorial waters. PRESCOTT, MARITIME AND POLITICAL BOUNDARIES OF THE WORLD 51 & 
313 (1985) [hereinafter PRESCOTT] also criticizes this line as an "extreme claim". 

13. American Embassy Canberra delivered the note on April 10, 1991 to the Department of Foreign 
Affairs and Trade. American Embassy Canberra telegram 02400, April 10, 1991. Australia's claim to these bays 
was made in a March 19, 1987 proclamation by the Governor-General published in the Commonwealth 
Gazette No. S 57, Mar. 31, 1987, at 2-4, 11 Aust. Y.B. Int'l L. 266 (1991). The Government of Australia, 
in response to a request from the United States for information as to the basis of these claims, provided the 
Department a copy of a February 1986 Report of the Commonwealth/South Australia Committee on the 
"South Australia Historic Bays Issue". This report was analyzed in talking points provided the Embassy, as 
follows: 

We note that while the Joint Committee was charged with considering the claim by South 
Australia that ten of its bays be considered historic bays or historic waters of Australia, only 
three were so ultimately considered. Two were judged to be mere curvatures, three were 
juridical bays, and two of the bays were not historically part of South Australia. Lacepede Bay, 
although not stated to be within the terms of reference, was also found to be a historic bay of 
Australia. 

We note that the report itself acknowledges that the international legal validity of these 
four claims is only "probable" and identifies some contrary evidence. 

The report bases the origin of the claims in 1836 Letters Patent by the Crown establishing 
the Province of South Australia, which included "all and every the Bays and Gulfs thereof." 



36 Excessive Maritime Claims 

The Report further suggests that this claim "would have been known or should have been 
known, to all the nations then represented at the Palace of St James" and that no protests were 
made then or later. 

A generalized claim to "all" bays and gulfs as forming part of the new Province of South 
Australia, coupled with persistent failure of the Government of Australia to identify the 
particular bays claimed as historic when the opportunity arose several times in the 20th Century, 
does not, we believe, rise to the level of an "open and notorious" claim. 

We note that the Report provides no evidence that, until the early 1980s, any of these bays 
were ever specifically mentioned in any listing of the historic bays of Australia. 

With regard to the attitude of foreign states to the claim, the Commission relied on the 
views expressed in the 1962 UN Secretariat study on the juridical regime of historic waters, 
that the mere absence of protest is sufficient circumstances to establish acquiescence. 

On the other hand, the United States has been of the view that acquiescence in a historic 
claim cannot be found in the mere absence of opposition to the claim. Rather the United States 
considers that there must be an actual showing of acquiescence, i.e., a failure to protest what 
is clearly known to a foreign State as a historical claim. This burden has not been met in the 
case of these four bays where the historic nature of the claim to those four bays was, I must 
note, never made public before the early 1980s. 

Concern is expressed in the Report [paragraph 24] that if the historic status of these bays 
was not accepted internationally, there would be areas of high seas within what are, for domestic 
Australian purposes, internal waters. 

We note that the United States had a similar situation in the Gulf of Mexico, where the 
waters of the States of Texas and Florida extend nine nautical miles seaward. As you know, 
until 1988 the United States [like Australia] claimed only a 3 nautical mile territorial sea. Hence 
the waters between 3 and 9 miles offshore of Texas and the West Coast of Florida were high 
seas internationally yet belonged to those States. 

The extension of our territorial sea to 12 nautical miles has removed that long standing 
anomaly for international purposes. We assume the same result has occurred since 20 November 
1989 when Australia extended its territorial sea to 12 nautical miles. 

In support of the claim to these four bays, the report adduces evidence of economic activity 
having occurred. 

We note, however, that Australia claims a 200 mile exclusive fishery zone, and that in our 
view Australia would be entitled to claim a 200 nautical mile exclusive economic zone. In our 
view, the EEZ provides an adequate avenue for protecting economic interests. 

Hence, my Government is of the view that, with the increased coastal State maritime 
jurisdiction now permitted under customary international law reflected in the 1982 United 
Nations Convention on the Law of the Sea and other rules of international law reflected therein, 
no new claim to historic bay or historic waters is needed to meet resource and security interests 
of the coastal State. 

State Department telegram 111637, Apr. 6, 1991. See also BOUCHEZ, THE REGIME OF BAYS IN 
INTERNATIONAL LAW 228-29 (1964) [hereinafter BOUCHER]; PRESCOTT, AUSTRALIA'S MARITIME 
BOUNDARIES 58, 70-73 (1985); and PRESCOTT, at 61. 

14. The text of this agreement may be found in IV FBIS Asia & Pacific, July 9, 1982, no. 132, at K3-K4. 

15. United States Mission to the United Nations in New York Note dated June 17, 1987, reprinted in 
U.N. LOS BULL. No. 10, Nov. 1987, at 23 and U.N. Office for Ocean Affairs and the Law of the Sea, The 
Law of the Sea: Current Developments in State Practice No. II, at 86 (U.N. Sales No. E.89.V.7, 1989) 
[hereinafter U.N. Current Developments No. II]. Thailand and Singapore protested this claim (and a claim 
to the airspace over these waters made by Vietnam in a statement dated June 5, 1984, U.N. Doc. A/39/309, 
annex) in notes to the Secretary-General of the United Nations reprinted in U.N. Office of the Special 
Representative of the Secretary-General for the Law of the Sea, The Law of the Sea: Current Developments 



Historic Waters 37 

in State Practice 147 (U.N. Sales No. E.87.V.3, 1987) [hereinafter U.N. Current Developments No. I] 
(Thailand, U.N. Doc. A/40/1033), and in U.N. Current Developments No. II, at 84-85 (Singapore, U.N. 
Doc. A/41/967 of Dec. 15, 1986). Singapore and Thailand also stated the agreement is devoid of any legal 
effect since "the so-called Government of the Peoples' Republic of Kampuchea does not represent" 
Kampuchea. Id. The Federal Republic of Germany protested Vietnam's claim in June 1984. See PRESCOTT, 
at 212-30. 

16. Article 8 of the Indian Maritime Zones Act No. 80, 1976, which may be found in United Nations 
Legislative Series, National Legislation and Treaties Relating to the Law of the Sea, U.N. Doc. ST/ 
LEG/SER.B/19, at 52 (1980) [hereinafter U.N. Legislative Series B/19]. The Notice of January 15, 1977 
related to Act No. 80 and Law No. 41 ofjune 1, 1979, may be found at 16 Indian J. Int' L. 557-62 (1976), 
and SMITH, EXCLUSIVE ECONOMIC ZONE CLAIMS 222-25 (1986) [hereinafter SMITH EEZ CLAIMS]. In 
June 1974, India and Sri Lanka signed an agreement on the boundary in historic waters between their two 
countries. It has been said that the question of historicity of Palk Bay was resolved in Anna kumaru Pillai v. 
Muthupayal, Appellate Criminal Division, Indian High Court, Madras (H.C.) 1903-04, when both Sri Lanka 
(Ceylon) and India were under U.K. administration. The suit involved rights to chank beds and pearl grounds 
in Palk Bay and the adjacent Gulf of Mannar (Manaar). According to the decision, Palk Bay was "landlocked 
by His Majesty's dominions for eight-ninths of its circumference ... [and] effectively occupied for centuries 
by the inhabitants of the adjacent districts of India and Ceylon respectively." See JESSUP, THE LAW OF 
TERRITORIAL WATERS AND MARITIME JURISDICTION 14-16 (1927); Limits in the Seas No. 66, Historic 
Water Boundary: India-Sri Lanka Pec. 12, 1975), at 3; and PRESCOTT, at 61. 

17. State Department telegram 128220, May 9, 1983; American Embassy New Delhi telegram 09947, 
May 16, 1983. 

18. Presidential Decree No. 816 of April 26, 1977, reprinted in 2 WESTERN EUROPE AND THE 
DEVELOPMENT OF THE LAW OF THE SEA, ITALY 1912-1977, Doc. L.26.4.1977, at 147-51 (F. Durante 
& W. Rodino eds. 1979). 

19. State Department telegram 249145, Aug. 23, 1984. The United Kingdom has stated that the Italian 
claim to the Gulf of Taranto as internal waters "is not consistent with our interpretation of the 1958 Geneva 
Convention on the Territorial Sea." 424 H.L. (5th Ser.) 367, Oct. 13, 1981 (written answer by Lord 
Carrington), reprinted in 52 Brit. Y.B. Int'l L. 465 (1982). See Ronzitti, Is the Gulf of Taranto an Historic Bay?, 
11 Syracuse J. Int'l L. & Com. 275 (1984) (Taranto not a historic bay); Ronzitti, New Criticism on the Gulf of 
Taranto Closing Line: A Restatement of a Different View, 12 id. 465 (1986); Caffio, Baia storiche a confronto, Rivista 
Marittima, Nov. 1991, at 79-92 (foreign submarine transited Gulf of Taranto submerged on Feb. 24, 1985), 
State Department translation LS No. 138696; Caffio, H Golfo di Taranto come baia storica, Rivista Marittima, 
1986, II, at 73. 

20. U.N. Legislative Series B/18, at 26-27; Libyan Embassy, Washington, D.C. Note dated Oct. 11, 
1973, State Department File POL 33 Gulf of Sirte 019435. The Libyan claim is carefully examined in Spinatto, 
Historic and Vital Bays: An Analysis of Libya's Claim to the GulfofSidra, 13 Ocean Dev. & Int'l LJ. 65 (1983); 
Francioni, The Status of The Gulf of Sirte in International Law, 11 Syracuse J. Int'l L. & Com. 311 (1984); Blum, 
The GulfofSidra Incident, 80 Am. J. Int'l L. 668 (1986); Neutze, The GulfofSidra Incident: A Legal Perspective, 
U.S. Nav. Inst. Proc. at 26-31 (Jan. 1982); and Parks, Crossing the Line, U.S. Nav. Inst. Proc. at 41-43 (Nov. 
1986). 

21. 1974 DIGEST 293. 

22. United States Mission to the United Nations in New York Note to the Secretary-General of the 
United Nations, dated July 10, 1985. The United Nations transmitted this note to the permanent missions in 
New York on July 10, 1985, as document NV/85/11, and subsequently published it in U.N. LOS BULL., 
No. 6, Oct. 1985, at 40. 

Many other nations also reject Libya's claim to the GulfofSidra, including Australia (11 Aust. Y.B. Int'l L. 
264-66, June 9, 1982; 10 Aust. Y.B. Int'l L. 405-06, Aug. 25, 1981; Hayden press conference in Brisbane, 
March 26, 1986), France (FBIS Western Europe, Mar. 26, 1986, at Kl), Federal Republic of Germany (FBIS 
Western Europe Mar. 26, 1986, at Jl), Italy (1976 Italian Y.B. Int'l L. 422, 1985; id. 246-47, 1986-87; id. 
392-93), Norway (FBIS Western Europe, Apr. 7, 1986, at P3-P4); Spain (FBIS Western Europe, Mar. 26, 
1986, at n. 1); and the United Kingdom and other EC nations (57 Brit. Y.B. Int'l L. 579, 580, 582, 1987). 
PRESCOTT, at 298 strongly rejects this claim. 

Only Syria, Sudan, Burkina Faso (formerly Upper Volta), and Romania have publicly recognized the claim. 
U.N. Doc. S/PV.2670, at 12 (1986) (Syria); Foreign Broadcast Information Service (FIBS) Daily Report, 
Middle East & Africa, March 27, 1986, at Q5 (Sudan); id., Dec. 13, 1985, at Tl (Burkina Faso); FBIS Daily 
Report, Eastern Europe, Mar. 27, 1986, at HI (Romania). 

23. DEPT STATE BULL., Feb. 1987, at 69-70. The G/STalso noted the prior history of United States 
responses to attempts by North African States to restrict navigation: 



38 Excessive Maritime Claims 

Barbary Coast history: This is not the first time that the U.S. has contended with navigational hindrances 
imposed by North African states. After the American Revolution, the U.S. adhered to the then 
common practice of paying tribute to the Barbary Coast states to ensure safe passage of U.S. merchant 
vessels. In 1796 the U.S. paid a one-time sum (equal to one-third of its defense budget) to Algiers, 
with guarantees of further annual payments. In 1801, the U.S. refused to conclude a similar agreement 
with Tripoli, and the Pasha of Tripoli declared war on the U.S. After negotiations failed, the U.S. 
blockaded Tripoli; in the autumn of 1803 Commodore Edward Preble led a squadron, including 
U.S.S. Constitution ("Old Ironsides") to the Mediterranean to continue the blockade. Shortly after the 
squadron arrived off Tripoli, a U.S. frigate, the Philadelphia, ran aground and was captured. Lt. Stephen 
Decatur led a team into Tripoli harbor and successfully burned the Philadelphia. In June 1805, the 
Pasha agreed to terms following a ground assault led by U.S. Marines that captured a port near Tripoli. 
In 1810, Algiers and Tripoli renewed raids against U.S. shipping and in 1815 Commodore Decatur's 
squadron caught the Algerian fleet at sea and forced the Dey of Algiers to agree to terms favorable to 
the U.S. Decatur then proceeded to Tunis and Tripoli and obtained their consent to similar treaties. 
A U.S. squadron remained in the Mediterranean for several years to ensure compliance with the treaties. 

24. Panama Law No. 9 of Jan. 30, 1957, published in the Gaceta Oficial of April 24, 1956, may also be 
found in ATLAS OF THE STRAIGHT BASELINES 44 (Scovazzi ed., 2d ed. 1989) [hereinafter Scovazzi, ed.]. 
Colombia and Costa Rica, in their agreements with Panama delimiting their maritime boundaries, did not 
"object" to Panama's historic bay claim. See Article III of these 1976 (Colombia) and 1980 (Costa Rica) 
agreements, translations and analyses of which appear in Limits in the Seas Nos. 79 (1978) and 97 (1982) 
respectively. 

25. American Embassy Panama dispatch 141, Oct. 3, 1956, forwarding a copy of Note 199 of Sept. 28, 
1956 to the Panama Foreign Office, State Department File No. 397.022-IA/10-356 XR719.022. The U.S. 
objection was repeated in demarches made February 3 and 4, 1988 by the Embassy to Foreign Ministry and 
other officials in Panama City. American Embassy Panama telegram 1438, Feb. 5, 1988; State Department 
telegram 397809, Dec. 24, 1987. 

26. 4 WHITEMAN 250-51. 

27. See 4 WHITEMAN 251-57 for an exchange of notes on the status of Peter the Great Bay, including 
the U.S. Notes of Aug. 12, 1957 and Mar. 6, 1958, as well as protests by Japan (1958), Great Britain (1957), 
France (Oct. 11, 1957), Canada and Sweden (Dec. 9, 1957), as well as the Federal Republic of Germany 
(Feb. 5, 1958) and the Netherlands (Oct. 31, 1957); see also 2Japanese Ann. Int'l L. 213-18 (1958), 62 RGDIP 
63, 159-62 (text of U.S., Japanese and French protests), 7 Int'l & Comp. L.Q. 112-13, 1957-1958 Y.B. Dutch 
Ministry of Foreign Affairs 298-300, and BUTLER, THE SOVIET UNION AND THE LAW OF THE SEA 110 
(1971). 

28. American Embassy Moscow Note No. 86/82 dated Aug. 2, 1982. State Department telegram 212128, 
July 30, 1982; American Embassy Moscow telegram 09344, Aug. 3, 1982. The Soviet Note read as follows: 

On May 3 of this year, at 01 hours 15 minutes Moscow time, the American naval vessel 
"Lockwood," bow number FF-1064, violated the state maritime boundary of the USSR in 
the Far East at a point with the coordinates 42 degrees 21 minutes 6 seconds and 132 degrees 
21 minutes 6 seconds E., and remained inside the territorial waters of the USSR until 10 hours 
30 minutes. The above-mentioned vessel not only failed to react to the demands of Soviet 
coast guard and naval vessels to leave the territorial waters of the USSR at once, but also took 
a number of provocative actions, such as signalling its intentions to fire missiles, and sent up a 
helicopter, which made flights in Soviet airspace. 

All this constitutes a flagrantly illegal action, and must be regarded as a dangerous, deliberate 
provocation. 

In expressing its vigorous protest over the violation of the state maritime boundary of the 
USSR by an American warship, the Ministry of Foreign Affairs demands that the U.S. 
authorities take appropriate measures to prevent such occurrences in the future. The U.S. side 
should be aware that it will bear all responsibility for the possible consequences of further 
incidents of this nature. 

Soviet Ministry of Foreign Affairs Note No. 30/dusa of May 4, 1982, to American Embassy Moscow. State 
Department Language Services translation no. 118568, File No. P86 0014-0060. 

29. Aide memoire from the Soviet Ministry of Foreign Affairs to American Embassy Moscow, dated July 
21, 1964, American Embassy Moscow telegram 222, July 21, 1964. 



Historic Waters 39 

30. American Embassy, Moscow aide memoire to the Soviet Ministry of Foreign Affairs dated June 22, 
1965, State Department File No. USSR POL 33 R. See infra, Chapter XI, for the diplomatic correspondence 
regarding transit rights in the Northeast Passage. 

31. The November 12, 1982 declaration of Vietnam may be found in UN. Doc. A/37/682-S/15505, 
Nov. 30, 1982 and U.N. Current Developments No. I, at 143-44. 

32. U.S. Mission to the United Nations Note to the Mission of the Socialist Republic of Vietnam to the 
United Nations in New York dated Dec. 6, 1982, State Department telegram 334675, Dec. 1, 1982. France 
and Thailand also protested this claim in notes to the Secretary-General of the United Nations which are 
reprinted in U.N. Current Developments No. I, at 146 (France, Dec. 5, 1983) and 147 (Thailand, Nov. 22, 
1985, originally circulated as U.N. Doc. A/40/1033 of Dec. 12, 1985). On November 28, 1985 China issued 
a statement denying any prior maritime delimitation in the Beibu Gulf (Gulf of Tonkin) and restated its claim 
to the Xisha (Paracels) and Nansha (Spratly) Islands. Id. at 145 (originally circulated as U.N. Doc. A/37/682- 
S/15505 of Nov. 30, 1982). China reasserted these claims in its 1992 Territorial Sea Law, U.N. LOS BULL., 
No. 21, Aug. 1992, at 24. 

33. Limits in the Seas No. 99, Straight Baselines: Vietnam 9-10 (1983). 

34. United States v. Maine et al {Rhode Island & New York Boundary Case) 469 U.S. 504, 526 (the portion 
of Long Island Sound west of the line between Montauk Point on Long Island and Watch Hill Point in Rhode 
Island). See n. 3 supra. 

35. See 4 WHITEMAN 235. In 1965 the Supreme Court declined to consider the claim that Monterey 
Bay, California, is historic, noting that it met the 24-nautical mile closing line test. United States v. California, 
381 U.S. 139, at 173. See further 4 WHITEMAN 238-39, 241 & 247-48. 

36. Presidential Decree No. 2393, June 17, 1940, reprinted in U.N. Laws and Regulations on the Regime 
of the High Seas, U.N. Doc. ST/LEG/SER.B/1, at 80 (U.N. Sales No. 1951.V.2 (1951)). 

37. Art. 2, Act No. 3342, July 13, 1952, Concerning the extent of the Territorial Waters of the Dominican 
Republic, as transl. in U.N. Laws and Regulations on the Regime of the Territorial Sea, U.N. Doc. 
ST/LEG/SER.B/6, at 11 (U.N. Sales No. 1957.V.2 (1956)). 

38. Diplomatic Note from the American Embassy Cairo of June 4, 1951, may be found in 7 Rev. Egypt, 
de Droit Int'l 94 (1951). The British Embassy at Cairo protest of May 23, 1951 may be found in id. at 91-94. 
The Egyptian Royal Decree concerning the territorial waters of the Kingdom of Egypt of January 15, 1951, 
may be found in 6 id. 175-77 (1950). See also U.N. Secretariat Memorandum, Historic Bays, U.N. 
Doc.A/CONF.13/1 (1957), reprinted in 1 U.N. Conference on the Law of the Sea, Official Records 6, paras. 
24-26 (1958); BOUCHEZ, at 220-221; and Scovazzi ed. at 26. Presidential Decree No. 27/90, Jan. 9, 1990, 
concerning Egypt's baselines, and the note verbale of Egypt to the United Nations, May 2, 1990, may be found 
in translation in the U.N. LOS BULL., No. 16, Dec. 1990, at 3-9. 



Baselines 41 



Chapter IV 
Baselines 



A State's territorial sea and most other maritime zones are measured from 
baselines. The current rules for delimiting maritime baselines are con- 
tained in Articles 5 through 14 of the LOS Convention. They distinguish 
between normal baselines (following the low- water mark along the coast) and 
straight baselines (which can be employed only in specified geographical 
situations). The baseline rules take into account most of the wide variety of 
geographical conditions existing along the coastlines of the world. 

Normal Baseline 

Unless other special rules apply, the baseline from which the territorial sea is to 
be measured is the normal baseline, i.e. , the low-water line along the coast as marked 
on the State's official large-scale charts. United States policy is that its baseline is 
the normal baseline. In an aide memoire dated March 19, 1984, replying to a Canadian 
Government request for a list of the coordinates of the basepoints from which the 
U.S. territorial sea and the exclusive economic zone are measured, the Department 
of State stated "that no such list exists." The aide memoire continued: 

The United States measures the breadth of its maritime zones from baselines 
drawn in accordance with the 1958 Geneva Convention on the Territorial Sea 
and [the] Contiguous Zone. As provided in Article 3 of the Convention, the 
normal baseline is the low water line along the coast. The low water line is marked 
on large-scale charts issued by the National Ocean Service of the Department of 
Commerce. Bay closing lines are also used as baselines in accordance with Article 
7 of the Convention. These too are marked on the large-scale charts wherever 
they affect the limit of the territorial sea. 

"Low- water line" has been defined as "the intersection of the plane of low 
water with the shore. The line along a coast, or beach, to which the sea recedes 
at low- water." The actual water level taken as low- water for charting purposes 
is known as the level of Chart Datum. 

Normal baselines claims must be consistent with this rule. Excessive normal 
baseline claims include a claim that low-tide elevations wherever situated 
generate a territorial sea and that artificial islands generate a territorial sea (Egypt 
and Saudi Arabia). 

Harbor Works 

The outermost permanent harbor works which form an integral part of the 
harbor system are regarded as forming part of the coast for baseline purposes. 



42 Excessive Maritime Claims 

Harbor works are structures, such as jetties, breakwaters and groins, erected along 
the coast, usually near inlets or rivers for protective purposes or for enclosing sea 
areas adjacent to the coast to provide anchorage and shelter. The U.S. Supreme 
Court has held that "dredged channels leading to ports and harbors" are not 
"harbor works." 

Offshore installations and artificial islands are not considered permanent 
harbor works for baseline purposes. 

Reefs 

The low-water line of a drying reef may be used as the baseline for islands 
situated on atolls or having fringing reefs. The reefs must be depicted with an 
appropriate symbol on charts officially recognized by the coastal State. While 
the waters inside the lagoon of an atoll are internal waters, the LOS Convention 
does not address the matter of how to draw a closing line across the atoll entrance. 
Nevertheless, any such closing line must not adversely affect the rights of passage 
and other rights provided for in the LOS Convention. 

Straight Baselines 

It has been correctly noted that, while in some situations it would be 
impracticable to use the low- water line, "the effect of drawing straight baselines, 
even strictly in accordance with the rules, is often to enclose considerable bodies 
of sea as internal waters." Consequently, international law permits States — in 
limited geographical circumstances — to measure the territorial sea and other 
national maritime zones from straight baselines drawn between defined points 
of the coast. The United States accepts that the specific geographical cir- 
cumstances under which States may employ straight baselines are as described 
in article 7, paragraph 1, of the LOS Convention and article 4, paragraph 1, of 
the 1958 Territorial Sea Convention: 

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. 

Straight baselines must not depart "to any appreciable extent from the general 
direction of the coast," and the sea areas they enclose must be "sufficiently closely 
linked to the land domain to be subject to the regime of internal waters." 

A State which uses straight baselines must either clearly indicate them on its 

charts of a scale or scales adequate for ascertaining their position or publish a list 

1 ? 
of geographical coordinates of the points, specifying the geodetic datum. 

If the criteria of article 7, paragraph 1, of the LOS Convention are met, then 

straight baselines, or straight lines, are also permitted along unstable coastlines, 

river mouths, and using certain low-tide elevations. 



Baselines 43 

Unstable Coastlines 

Where the coastline is highly unstable due to natural conditions, e.g. , deltas, 
straight baselines may be established connecting appropriate points on the 
low-water line. These straight baselines remain effective, despite subsequent 
regression or accretion of the coastline, until changed by the coastal State. 

River Mouths 

If a river flows directly into the sea, the baseline is a straight line across the 
mouth of the river between points on the low- water line of its banks. 

Low-tide Elevations 

A low-tide elevation is a naturally formed land area surrounded by water and 
which remains above water at low tide but is submerged at high tide. Straight 
baselines may not be drawn to or from a low-tide elevation unless a lighthouse 
or similar installation, which is permanently above sea level, has been erected 
thereon, or unless the straight baseline to such a feature has received general 
international recognition. 

Straight Baselines Policy of the United States 

The U.S. Supreme Court has held that straight baselines could be applied in 
the United States only with the Federal Government's approval. In United States 
v. California, the U.S. Supreme Court agreed that the 1958 Convention on the 
Territorial Sea and the Contiguous Zone would permit the United States to use 
such baselines if it chose, but that: 

California may not use such base lines to extend our international boundaries 
beyond their traditional international limits against the expressed opposition of 
the United States. . . . [A]n extension of state sovereignty to an international area 
by claiming it as inland water would necessarily also extend national sovereignty, 
and unless the Federal Government's responsibility for questions of external 
sovereignty is hollow, it must have the power to prevent States from so enlarging 
themselves. We conclude that the choice under the Convention to use the 
straight-base-line method for determining inland waters claimed against other 
nations is one that rests with the Federal Government, and not with the individual 
States. 16 

United States policy is not to use straight baselines. 

Excessive Straight Baseline Claims 

While no detailed internationally accepted standards currently exist that 
define what is meant by the terms in article 7 of the LOS Convention, it appears 
that only certain countries have coastlines that qualify for straight baselines. 
Nevertheless, the State practice of straight baseline delimitation has, in many 
instances, distorted the rules for drawing straight baselines. An illegal straight 



44 Excessive Maritime Claims 

baseline claim adversely affects the international community's rights to use the 

oceans and superjacent airspace. One result has been that many of these straight 

baseline systems have created large areas of internal waters which otherwise 

would legally be territorial seas or areas in which the freedoms of navigation and 

overflight may be exercised. Burma, for example, by drawing a 222-mile straight 

baseline across the Gulf of Martaban has claimed about 14,300 sq.nm (49,000 

sq.km — an area similar in size to Denmark) as internal waters which, absent the 

1 r 
closing line, would be territorial seas or high seas (see Map 14). 

Similarly, Colombia has claimed a 130-mile straight baseline in an area along 
its Caribbean coast that is neither deeply indented nor are there fringing islands. 
By establishing this particular straight baseline, Colombia has sought to enclose 
as internal waters about 2,100 sq.nm of waters which previously had been subject 
to the regime of innocent passage (1,500 sq.nm) or areas in which the freedom 
of navigation and overflight may be exercised (600 sq.nm). 

More than 60 States have delimited straight baselines along portions of their 
coasts, and approximately 10 other States have enacted enabling legislation but 
have yet to publish the coordinates or charts of the straight baselines. Table 2 
gives information on those States claiming straight baselines and on any action 
taken by the United States against those claims not following one or more of 
the rules for the drawing of straight baselines. Since the FON Program is 
ongoing, many of the claims listed in Table 2 are, or will be, under review with 
possible diplomatic protests and/or operational assertions of right to follow. 

Table 2 
Claims Made to Straight Baselines 21 

[Absence of protest or assertion should not be inferred as acceptance 
or rejection by the United States of the straight baseline claims.] 

U.S. U.S. Assertion 

State Law and Date of Claim Protest of Right 

Albania Decree No. 4650, April 15, 1970 1989 

Decree No. 5384, Feb. 20, 1976 

Algeria Decree No. 84-181, Aug. 4, 1984 

Angola Portuguese Decree No. 47,771, June 17, 

1967 

Argentina Law No. 17,094, Jan. 19, 1967 1967 

Law No. 23,968, Sep. 13, 1991 

Australia Proclamation, Feb. 9, 1983 

Bangladesh Declaration, April 13, 1974 1978 

Barbados Act No. 26, 1976 [enabling legislation] 



Table 2 (Cont.) 



Baselines 45 



State 
Brazil 

Bulgaria 

Burma 

Cambodia 
Cameroon 

Canada 



Chile 
China 



Law and Date of Claim 

Decree Law No. 1098, March 27, 1970 

[enabling legislation] 

Law 8,617, Jan. 4, 1993 [enabling legislation] 

Decree No. 514, Oct. 10, 1951 
[Vanna and Bourga Bays] 

Decree, Nov. 15, 1968 
Law No. 3, Apr. 9, 1977 

Council of State Decree, July 31, 1982 

Decree 62-DF-216, June 25, 1962 
Decree 71-DF-416, Aug. 26, 1971 

Order-in-Council P.C. 1967-2025, Oct. 26, 
1967 [Labrador & Newfoundland] 
Order-in-Council P.C. 1969-1109, May 29, 
1969 [Nova Scotia, Vancouver & Queen 
Charlotte Island] 

Order-in-Council P.C. 1972-966, 
May 9, 1972 

Order-in-Council P.C. 1985-2739, 
Sept. 10, 1985 [Arctic] 

Decree No. 416, July 14, 1977 

Declaration, Sept. 4, 1958 [no coordinates 

published] 

Law, Feb. 25, 1992 [enabling legislation] 



U.S. 
Protest 



U.S. Assertion 
of Right 



1982 



1963 



1967 



1985' 



1986 



1986 



Colombia 


Decree No. 1436, June 13, 1984 


1988 


Costa Rica 


Law No. 18581-RE, Nov. 21, 1988 


1989 


Cote D'lvoire 


Law No. 77-926, Nov. 17, 1977 [enabling 
legislation] 




Cuba 


Decree Law No. 1, Feb. 26, 1977 


1983 


Cyprus 


Note Ref 2001/254, May 3, 1993 




Denmark 


Royal Ordinance No. 437, Dec. 21, 1966 
Royal Ordinance No. 189, May 1, 1978 




Denmark 


Decree No. 156, April 24, 1963 




(Faroe I.) 


Decree No. 128, April 1, 1976 






Decree No. 598, Jan. 1, 1977 


1991 


Denmark 


Executive Order No. 629, Jan. 1, 1977 




(Greenland) 


Executive Order No. 176, May 14, 1980 





1988 



1985' 



1991 



46 Excessive Maritime Claims 



Table 2 (Cont.) 



State 
Djibouti 

Dominica 



Dominican 
Republic 

Ecuador 



Egypt 

Finland 

France 

French 

Departments and 
Dependencies: 
Fr. Guiana 
Mayotte 
St. Pierre & 
Miquelon 
Fr. Southern 
& Antarctic 
Lands 

Germany 

Guinea 

Guinea-Bissau 



Law and Date of Claim 

Decree No. 52/AN/78, Jan. 9, 1979 
Decree No. 85-048, May 5, 1985 

Act No. 26, Aug. 25, 1981 [enabling 
legislation] 

Law No. 186, Sept. 6, 1967 
Act No. 573, Apr. 1, 1977 

Decree Law No. 1542, Nov. 10, 1966 
Decree No. 959-A, July 13, 1971 

Decree No. 27, Jan. 9, 1990 

Decree No. 464, Aug. 18, 1956 

Decree, Oct. 19, 1967 



Haiti 
Iceland 



Iran 



Decree, June 29, 1971 

Decree No. 77-1067, Sept. 12, 1972 

Decree No. 77-1068, Sept. 12, 1972 

Decree No. 78-112, Jan. 11, 1978 



Notice to Mariners No. 2, Jan. 1969 
[former GDR] 

Decree No. 224/PRG/64, June 6, 1964 
Decree No. 336/PRG/80, July 30, 1980 

Decree Law. No. 47,771, June 27, 1967 
Decision No. 14/74, Dec. 31, 1974 
Law No. 3/78, May 19, 1978 
Act No. 2/85, May 17, 1985 

Decree, April 6, 1972 

Regulations, March 19, 1952 
Regulations, March 1961 
Regulations, Sept. 9, 1972 
Law No. l.June 1, 1979 

Act, April 12, 1959 

Decree No. 2/250-67, July 22, 1973 

Act, May 2, 1993 



U.S. 
Protest 



1989 



U.S. Assertion 
of Right 

1992 



1987' 



1986 
1991 



1964 



1981 



1973 



1989 



1986 



1994 



1994' 



Ireland 



Statutory Instrument No. 173, Jan. 1, 1960 



Table 2 (Cont.) 



Baselines 47 



State 
Italy 
Japan 

Kenya 

Korea, South 
Lithuania 

Madagascar 

Malta 

Mauritania 

Mauritius 
Mexico 



Morocco 
Mozambique 
Netherlands 
Norway 

Norwegian 
Dependencies: 

Jan Mayen 

Svalbard 

Oman 
Portugal 

Romania 
Saudi Arabia 

Senegal 



Law and Date of Claim 

Decree No. 816, Feb. 9, 1978 

Law No. 20, July 1, 1977 [enabling 
legislation] 

Territorial Waters Act, May 16, 1972 

Decree No. 9162, Sept. 20, 1978 

Law on National Boundaries, June 25, 1992 
[enabling legislation] 

Decree No. 63-131, Feb. 27, 1963 

Act No. XXXII, Dec. 7, 1971 

Law 67-023, Jan. 21, 1967 
Law 78,043, Feb. 28, 1978 
Law 88-120, Aug. 31, 1988 

Territorial Seas Act, April 16, 1970 

Decree, Aug. 18, 1968 

[Gulf of California] 
Decree, Jan. 8, 1986 

[Gulf of California] 

Decree No. 2.75.311, July 21, 1975 

Decree Law 47, 771, June 27, 1967 

Territorial Sea Act, June 1, 1985 

Royal Decree, July 12, 1935 
Royal Decree, July 18, 1952 



Royal Decree, June 30, 1955 
Royal Decree, Sept. 25, 1970 

Decree No. 38/83, June 1, 1982 

Decree Law 2130, Aug. 22, 1966 
Decree Law No. 495/85, Nov. 29, 1985 

Act, Aug. 7, 1990 

Decree No. 33, Feb. 16, 1958 
[not delimited] 

Decree 72-765, July 5, 1975 
Decree 90-670, June 18, 1990 



U.S. 
Protest 

1986 a 



U.S. Assertion 
of Right 



1981' 



1989 



1969 



1981' 



1991 



1986 



1991' 



1989 



48 Excessive Maritime Claims 



Table 2 (Cont.) 



State Law and Date of Claim 

Somalia Law No. 37, Sept. 10, 1972 

[enabling legislation] 

Soviet Union Decree, Feb. 7, 1984 

(Former) Decree, Jan. 15, 1985 

Spain Decree No. 627/1976, March 5, 1977 

Decree No. 2510/1977, Aug. 5, 1977 

Sudan Act No. 106, Dec. 31, 1970 [enabling 

legislation] 

Sweden Decree No. 375, July 1, 1966 

Syria Decree No. 304, Dec. 28, 1963 

[not delimited] 

Tanzania Notice No. 209, Aug. 1973 

Thailand Announcement, June 12, 1970, as amended 

by Announcement No. 2 (1993), February 2, 
1993 

Tunisia Decree No. 73-527, Nov. 3, 1973 

Turkey Law No. 476, May 15, 1964 

United Arab Federal Law No. 19, 1993 

Emirates [enabling legislation] 

United Kingdom Order-in-Council, Sept. 25, 1964 



UK Dependen- 
cies: 

Turks & Caicos 
Falkland Islands 
So. Georgia Isl. 

Venezuela 

Vietnam 

Yemen 



U.S. 
Protest 



1984' 
1985 £ 



U.S. Assertion 
of Right 



1982 



1989 



Yugoslavia 
(Former) 



Statutory Instrument 1989 No. 1996 
Statutory Instrument 1989 No. 1993 
Statutory Instrument 1989 No. 1995 

Decree, July 10, 1956 

Statement, Nov. 12, 1982 

Act No. 45, Jan. 15, 1978 [enabling 
legislation] 

Law No. 876, Dec. 8, 1948 
Law, May 22, 1965 



1956 



1982 



Multiple protests or assertions. 



Source: U.S. Department of State, Office of Ocean Affairs. 



Baselines 49 

There are many ways in which straight baselines have been drawn inconsistent 
with the LOS Convention. The majority of straight baseline claims protested by 
the United States are those which do not meet the criteria set forth in Article 
7(1) of the LOS Convention, that is, where straight baselines have been drawn, 
the coastline is either not "deeply indented and cut into," or it does not have a 
"fringe of islands along the coast." A State must first meet at least one of these two 
geographical conditions before applying the straight baseline provisions in the 
particular locality. Other excessive baseline claims meet this threshold test, but 
include basepoints that are not permitted under subparagraphs 3 to 6 of Article 7 of 
the LOS Convention. 

Coastline not deeply indented and cut into 

On October 14, 1988, the Government of Costa Rica issued a decree 
establishing straight baselines along its Pacific coast (see Map 18). The United 
States protested the segments in three areas which do not meet the applicable 
criteria, in a note of which the following is an extract: 

The Government of the United States wishes to recall to the Government 
of Costa Rica that, as recognized in customary international law and as 
reflected in the 1982 United Nations Convention on the Law of the Sea, unless 
exceptional circumstances exist, baselines are to conform to the low- water line 
along the coast as marked on a state's official large-scale charts. Straight 
baselines may only be employed in localities where the coastline is deeply 
indented and cut into, or where there is a fringe of islands along the immediate 
vicinity of the coast. Additionally, 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. 

While the Pacific coastline of Costa Rica contains two embayments, it is 
neither deeply indented and cut into, nor fringed with many islands, as those 
standards are employed and understood in international law. . . . 

By a 1984 Presidential decree, the Government of Colombia claimed a 
system of straight baselines on both the Pacific and Caribbean coasts of Colom- 
bia. In 1985, the Office of the Geographer of the Department of State analyzed 
each baseline segment and concluded: 

With the exception of several select areas, straight baselines do not appear to 
be appropriate for the Colombian coastline. There are very few islands off 
either coast; those in the Pacific are mostly islands associated with the river 
deltas. Except for several bays, the coastline along both coasts is relatively 
smooth. And, in most areas, the changes in coastal directions do not create 
deep indentations. 25 



50 Excessive Maritime Claims 

The United States Government, in a note dated July 14, 1988, of which the 
following is an excerpt, protested as follows: 

Under customary international law as reflected in the 1982 United Nations 
Convention on the Law of the Sea, the normal baseline for the measurement of 
the breadth of the territorial sea is the low- water line along the coast as marked 
on large-scale charts officially recognized by the coastal state. However, in 
accordance with article 7 of the Convention, coastal states may employ straight 
baselines to delineate the baseline from which the territorial sea is measured in 
two limited geographical circumstances: 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. In both instances the straight 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. 

Upon review of the claimed Colombian straight baselines system, it is the view 
of the United States that Colombia has established straight baselines where the 
requisite limited geographic circumstances do not exist. In numerous instances 
straight baselines have been employed in areas in which the coastline is not 
sufficiently indented and cut into, and in areas connecting islands which do not 
properly constitute a fringe of islands along the coast. 

In light of the foregoing, the United States protests those baselines contained 
in the decree which do not comply with international law and reserves for itself 
and its nationals all rights in accordance with international law with respect to all 
waters, both on the Pacific and Caribbean coasts of Colombia, affected by the 
decree discussed herein. 6 

In 1982, Oman established straight baselines along portions of its coast, 
including that bordering on the Strait of Hormuz. In 1991, the United States 
protested certain segments where "the coastline is too smooth landward of points 
1-5, 14-16, [Group A] and 38-43 [Group D]. 27 " (See Map 6.) 

In 1990, the Government of Egypt established straight baselines along 
almost its entire coastline in the Mediterranean, Gulf of Aqaba and the Red 
Sea, notwithstanding the fact that the Egyptian coastline in all seas is generally 
smooth and gently undulating, and is neither deeply indented and cut into 
nor fringed with islands. (See Maps 7 & 8.) In 1991, the United States 
protested this claim, in a note of which the following is an extract: 

The United States notes that the coastline in the vicinity of coordinates 1-32 located 
in the Gulf of Aqaba is neither masked by a fringe of islands nor is it deeply indented 
or cut into. The coastline in the vicinity of coordinates 32 and 33 also does not meet 
these criteria, nor does it constitute a juridical bay within the meaning of Article 10 
of the LOS Convention. The United States observes that, whereas it would be possible 
to construct shorter baselines off the coast between coordinates 32 and 33 which could 
properly enclose juridical bays, such baselines were not drawn. 



Map 6 



Baselines 51 



OMAN= 
STRAIGHT 
BASELINE 

CLAIM 



Nome and boundary representation 
ore not necessarily authoritative. 




GROUP B 




OMAN 



GROUP C 




■A 27 




OMAN 


■ W 128.29 
./ Al Masirah\iO 


.jSsT 


36^^ 


\ f JT 52 
\|iT 33 
35 34 

A rob ion 
Sea ; 



GROUP A 

Persian 




Strai 


of 7 


'9 


Gulf 










Musandam 
Peninsula ^/ 


6 


>& 


55r J^, 


10 


4 X >' 

3>y 1' 




S 


W / 


1 


7"i 






5T|2 




r OMAN 
U. A. E.J 














^13 




1 administrative .£ 

1' /f 


14 




Gulf of 
Oman 


^ 1/ 











GROUP D 








OMAN 






"|38 




%-" ~v~~ 








41 


40 


39 






Arabian 
Sea 


5/90 



52 Excessive Maritime Claims 



Map 7 




Names and boundary representation 
are not necessarily authoritative. 



Baselines 53 



Map 8 



EGYPT: Red Sea Straight Baselines 










?SAUDl£ 
ARABIA 



"u" ; "> j v ,' ' i" . ' ' ,' y ." , 'i " .' y .' y ; . r ; .' j .' i ." , ■ .' , < . 




■ ' i '.'i'j'i', 1 ' >'/ ■ .'''■' •'■ ' . 



SUDAN 



» ■ ; ii ; n ; n; i ,"!."■ 



Names and boundary representation 
are not necessarily authoritative. 



54 Excessive Maritime Claims 

Baseline segments from Ras Mumhammed to the mainland northeast of 

Port Safaga also satisfy neither criteria. 

Baseline segments 36-56 in the Red Sea tail to meet the criteria of areas in which 
the coastline in the vicinity is deeply indented and cut into, or in which there 
exists a fringe of islands along the coast. The coastline in this vicinity is in tact 
practically void of islands and is relatively free from indentations. Accordingly, the 
normal baseline — the low water line — must be used in this vicinir. 

Wich regard to straight baseline segments located in the Mediterranean Sea, the 
United States wishes to make the following observations. 

The Mediterranean coastline in the vicinity of baseline segments 1-25 is clearly 
neither deeply indented and cut into, nor is it fringed with islands along the coast. 
However. Segments 25-28 enclose Abu Kir Bay, a juridical bay. The Mediter- 
ranean coastline in the vicinity of segments 28-39 is also neither deeply indented 
and cut into nor fringed with islands in its immediate vicinity. Baseline segments 
39-41 are invalid for the same reason. 

Whereas the waters behind the barrier spit between baseline segments 41 and 49 
could properly be constituted as internal waters, such can be accomplished by the 
barrier spit itself, joining by short baseline segments the barrier segments in those 
few areas in which it is not continuous. 

Baseline segments 49-55 are invalid since the coastline in that vicinity is also 
neither deeply indented and cut into nor fringed with island? - v 

In 1985, the Government of Portugal claimed a system of straight baselines 
along the mainland coast and around the Azores group which was contrary to 
international law. The United States Government, in a note of which the 
following is an excerpt, protested as folic 

The United States is unable to accept as valid the establishment by the Government 
of Portugal of many of the closing lines and straight baselines promulgated in the 
ree. It is the view of the United States that the lines in question do not comply 
with international law which in this case is reflected in the 1982 United Nations 
Convention on the Law of the Sea. With regard to the mainland, those segments 
which connect Ponta Carreiros with Barra de Aveiro, Cabo da Roca with Cabo 
Raso, Cabo Raso with Cabo Espichel, Cabo Espichel with Cabo Sines, Cabo 
Sines with Cabo de Sao Vicente and Ponta de Sacres with Cabo de Santa Mana, 
do not enclose jundical bays or lie in localities which meet the legal requirement 
that the coastline is deeply indented and cut into. . . . 

Certain of the baselines around the Madeira and the .Azores Islands groupings are 
objectionable for the same reasons, i.e., they do not lie in localities where the 
coastlines are deeply indented and cut into nor do they connect a fringe of islands 
along a coast in its immediate vicinity - 



Baselines 55 

In 1976, Albania issued a decree which modified its straight baseline system 
along the Adriatic coast {see Map 9). The United States protested in a note which, 
in part, stated: 

The United States wishes to point out that, for the most part, the Albanian 
coastline, being neither deeply indented and cut into, nor having a fringe of islands 
in its immediate vicinity, does not meet the geographic criteria required under 
international law for the establishment of straight baselines. Further, the baseline 
segments from the Cape of Rodom [Muzhit] to the mouth of the Vjose River, 
and from the Cape of Gjuhe to the Cape of Sarande, enclose waters which are 
neither juridical bays nor historic waters. 30 

In 1972, Senegal issued a decree establishing straight baselines along much 
of its coastline in the eastern Atlantic. In a 1989 note to the Ministry of Foreign 
Affairs objecting to these baselines, the United States noted that "the coastline 
of Senegal is . . . neither deeply indented and cut into, nor fringed with many 
islands." The note also stated that "none of the minor undulations enclosed by 
the straight baseline constitute juridical bays as defined in international law."' 

In 1964, Guinea issued a Presidential Decree defining the baseline along its 
coast by a 120 mile straight line "passing southwest of the island of Sene in the 
Tristao group and southward, by the southwestern tip of the Island of Tamara, 
at the low water mark." The Geographer of the Department of State described 
this system as "unique in the world practice of states": 

One straight line has been drawn connecting the northernmost Guinean island to 
the most-seaward southern island. . . . The coastline of Guinea, in addition, can 
scarcely be defined as "deeply indented and cut into'* or "fringed with islands". 
The straight baseline, however, does mark the limit of shoal waters for its entire 
length with the exception of a bay-like indentation opposite Taboria (9°56'N.; 
13°56'W.). In the vicinity of Taboria, the straight baseline is 14 nautical miles 
from shoal water. 

The system does not otherwise meet the general standards for straight baselines 
which have been used to evaluate the previous studies of this series. 

The United States protested in a note which in part said "the proclaimed straight 
baseline seems unjustified under the criteria set forth in Article 4 of the 
Convention on the Territorial Sea and the Contiguous Zone adopted at Geneva 
in 1958 which the United States Government regards as expressive of interna- 
tional law on the subject." In 1980, Guinea issued a new decree restoring the 
low-water line as the baseline. 

In 1962, Cameroon issued a decree establishing straight baselines across seven 
indentations in the Bight of Biafra. The United States protested that claim in a 
note stating the view that these baselines did not conform to the criteria for 



56 Excessive Maritime Claims 



Map 9 




ALBANIA: Claimed 

Straight Baselines :| Montene g r ° 

and Territorial Sea 

Decree No. 7366 
March 24. 1990 

25 kilometers 

I — 1- r l — S — ■— r 1 1 1 

25 miles • 



--42"N 




Otranto 



Straight baseline 

Limit of 12 nautical 
mile territorial sea claim 

Hypothetical equidistant line 
International boundary 



Serbio ond Montenegro hove asserted the formation 
of a joint independent stote. but this entity has 
not been formally recognized os a stote by the US. 



Baselines 57 

baselines set down in Article 4 of the 1958 Territorial Sea and The Contiguous 
35 

Zone Convention. 

Between 1967 and 1969, the Government of Canada claimed straight 
baselines along the coasts of Labrador and Newfoundland (by Order-in-Council 
1967-2025), and in Nova Scotia, Vancouver Island, and Queen Charlotte Islands 
(by Order-in-Council 1969-1109). The United States, in a note verbale of 
which the following is an excerpt, protested the 1967 claim as follows: 

The Department of State refers to the Note Verbale of External Affairs of 
October 11, 1967, handed to the United States Embassy, Ottawa, October 25, 
1967, concerning establishment by the Government of Canada of straight baseline 
system for delineation of Canada's territorial sea and contiguous fishing zone. In 
this connection, the Department notes the statement made by Paul Martin, 
Secretary of State, External Affairs, before External Affairs Committee of the 
House on October 26, 1967, and the Order of the Governor-General in Council 
on this subject issued October 26. 

As the Government of Canada is aware, the United States Government 
considers the action of Canada to be without legal justification. It is the view of 
the United States that the announced lines are, in important and substantial 
respects, contrary to established principles of international Law of the Sea. The 
United States does not recognize the validity of the purported lines and reserves 
all rights of the United States and its nationals in the waters in question. 37 

The United States similarly protested the 1969 additions to the system of 
straight baselines, in a note from which the following is an extract, as folio ws: 

The Secretary of State presents his compliments to His Excellency the 
Ambassador of Canada and has the honor to refer to the announcement on April 
5, 1969 of the Canadian Minister of Fisheries that the Canadian Government will 
(a) shortly establish further headland to headland baselines for areas on the east 
and west coasts of Canada .... 

The Secretary of State also refers to the Note Verbale given to His Excellency 
the Ambassador of Canada on November 1 , 1 967 in response to a Note Verbale 
of the Canadian Department of External Affairs on October 25, 1967 which 
concerned the establishment by the Government of Canada of straight baselines 
for areas of the east coast of Canada. The Department of State Note Verbale set 
forth the position of the United States Government that the action of Canada was 
without legal justification, that the baselines announced by Canada were, in 
important and substantial respects, contrary to established principles of the 
international law of the sea, that the United States did not recognize the validity 
of the purported lines, and that the United States reserved all rights of the United 
States and of its nationals in the waters in question. This position, which the United 
States Government continues to hold, was reiterated verbally to Canadian 
Counselor of Embassy Burwash on November 4, 1968 together with a request 
that if, despite the position of the United States, Canada decided to draw additional 



58 Excessive Maritime Claims 

baselines, the United States would be consulted well in advance of any such 
decision and would be given an opportunity to comment on the baselines 
concerned before their announcement. 

The Government of the United States wishes to express its disappointment in being 
given only a few hours advance notice of the announcement by the Canadian Minister 
of Fisheries on April 5, 1969 and no opportunity to comment upon it. The United 
States hopes it will be given an opportunity to comment on any baselines Canada 
plans to draw pursuant to that announcement. It would appreciate receiving their 
geographical coordinates in sufficient time before their intended announcement to 
allow proper study and discussion with the appropriate Canadian authorities. 



The Secretary of States wishes to state the concern of the United States 
Government that measures such as those seemingly envisaged by the Government 
of Canada, could do serious harm to multilateral efforts to preserve freedom of 
the high seas as a fundamental tenet of international law. 38 

In 1984 and 1985, the Government of the former Union of Soviet Socialist 
Republics claimed a system of straight baselines which was, in part, contrary to 
international law. The United States Government protested parts of the claimed 
system of baselines along the lines of the analyses which may be found in U.S. 
Department of State, Limits in the Sea No. 107 (1987) (Pacific Ocean, Sea of Japan, 
Sea of Okhotsk, Bering Sea) and No. 109 (1988) (Black Sea). Further, the USS 
Arkansas (CGN-41) challenged the Soviet straight baseline drawn across Avacha 
Bay, the entrance to Petropavlovsk, Kamchatka Peninsula, on May 17 and 21, 
1 987, and USS Baton Rouge (SSN-689) challenged the Russian straight baseline 
closing access to the Barents Sea port of Murmansk on February 11, 1992. 

Coastline Not Fringed With Islands 

In a declaration issued November 12, 1982, the Government of Vietnam 
claimed a system of ten straight baseline segments which included several 
examples that exceed the norms of international practice (see Map 10). The 
United States Government, in an aide memoire of which the following is an 
excerpt, protested as follows: 

As to the claimed system of straight baselines, the Government of the 
United States of America wishes to remind the Government of the Socialist 
Republic of Vietnam that, under customary and conventional international 
law, a coastal state may employ the method of straight baselines only 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. In so doing the 
baselines established by the coastal state must not depart to any appreciable 
extent from the general direction of the coast. It is the view of the Government 
of the United States of America that the baselines claimed by the Government 



Baselines 59 



Map 10 



VIETNAM: CLAIMED STRAIGHT BASELINES 




60 Excessive Maritime Claims 

of the Socialist Republic of Vietnam do not meet these criteria and that there is 
no basis in international law for the system of straight baselines provided in the 
declaration of November 12, 1982. 41 

In analyzing the baseline claim, the Office of the Geographer of the Depart- 
ment of State commented: 

Several of the island basepoints used by Vietnam are at a considerable distance 
from the mainland. This is particularly true of the Tho Chu Archipelago, the Con 
Dao group, and the Phu Quy group (Catwick Islands), all of which are at least 50 
nm from the mainland and neighboring island groups [, and the main segments of 
which are 99 - 160 nm long]. 42 

In 1982, Oman established a series of straight baselines along its coast in the Strait 
of Hormuz and the Arabian Sea. In 1991, the United States protested certain 
segments where "too few islands mask Oman's coastline at points 6-7 [Group A in 
the Strait of Hormuz] and 38-43 [Group D in the Arabian Sea]" (see Map 6). 

In 1977, the Government of Italy claimed a system of straight baselines 
which included several segments that were not consistent with international 
law. The United States, in a note of which the following is an excerpt, 
protested as follows: 

Customary international law, as reflected in the 1982 United Nations Con- 
vention on the Law of the Sea, provides that straight baselines may only 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. Baselines 
established by a coastal state must not depart to any appreciable extent from the 
general direction of the coast. ... It is the view of the Government of the United 
States that various straight baseline segments drawn by the Government of Italy 
do not meet these criteria and, therefore, that they have no basis in international 
law. In view of the foregoing, the Government of the United States reserves its 
rights and those of its nationals in this regard. 

Additional analysis provided to American Embassy Rome included the following: 

As the note makes clear, USG [United States Government] believes that a 
number of elements of the straight baseline claim contravene longstanding 
principles of international law reflected both in 1958 Convention on the Ter- 
ritorial Sea and the Contiguous Zone and in the 1982 LOS Convention. For 
instance, lines connect offshore islands between the mouth of the Arno and 
Civitavecchia, where those islands cannot be said to be coastal fringing islands in 
a legal sense. Nor is the coast between the French border and the mouth of the 
Arno deeply indented as that term is understood in international law. 

In 1977, the Government of Cuba claimed a system of straight baselines 
around the entire coast of Cuba which, in part, involved basepoints on 



Baselines 61 

non-fringing islands. The Office of the Geographer of the Department of State's 
analysis of the system noted that: 

Between points 10-17 it appears (according to U.S. charts) that low-tide 
elevations on the Cuban fringing reefs have been utilized as basepoints for the 
system. From point 17 (Punta Gobunadora, west of Bahia Honda) through point 
28, the Cuban coastline is neither indented nor fringed with islands. . . . From 
77°40' West to No. 92, the southern entrance to the Gulf of Guacanayabo, the 
Cuban coastline again is not deeply indented or fringed with islands. 

.... From 101-102 the straight baseline continues nearly due west to Cayo 
Trabuco, an eastern cay of the Canary Archipelago, across an area that contains 
no islands for over 69 nautical miles. Moreover the Cuban coast north of point 
101 westward to Pta. Aristizabal is basically without indentation. 



Lines 107-110 follow the southern coast of the Isle of Pines, which is neither 
indented nor fringed with islands. 45 

The United States Government, in a 1983 note of which the following is an 
excerpt, stated: 

The Department of State refers the Cuban Interests Section of the Embassy 
of Czechoslovakia to the diplomatic note of February 2, 1983 of the Ministry 
of External Relations of the Republic of Cuba, alleging that a ship and aircraft 
of the United States of America violated Cuban territorial waters and air space 
on several occasions in December 1982 in the vicinity of the Bay of Cien- 
fuegos. 

The Government of the United States wishes to advise the Government of the 
Republic of Cuba that the ship and aircraft activities referred to in the note of 
February 2, 1983, were conducted in complete conformity with international law. 
It is the view of the Government of the United States that the sovereignty of the 
Republic of Cuba does not extend to the waters or superjacent air space in which 
the referenced activities occurred. 

According to well established principles of international law, as reflected in the 
1958 Geneva Convention on the Territorial Sea and Contiguous Zone and in the 
text of the United Nations Convention on the Law of the Sea, the method of 
straight baselines may be employed only 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 drawing of straight 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. 



62 Excessive Maritime Claims 

In Decree Law No. 1 of February 24, 1977, the Government of the Republic 
of Cuba claimed a system of straight baselines connecting 124 points around the 
entire coast of Cuba. The Government of the United States has studied the straight 
baseline system of Cuba and has concluded that, in a number of areas along the 
coast of Cuba, lines drawn pursuant to Decree Law No. 1 do not conform to 
international law. Included in these objectionable straight baselines is, with 
reference to points established in Decree Law No. 1, the line which connects 
points 101 and 102, in the vicinity of the Bay of Cienfuegos. 

The baseline between points 101 and 102 is 69 nautical miles long and crosses 
an area that contains no islands whatever. Moreover, the coastline in this area is 
not deeply indented and cut into. . . . 

The Government of the United States therefore does not recognize the baseline 
claimed in Decree No. 1 of the Government of the Republic of Cuba. The 
Government of the United States reserves its rights and those of its nationals in 
regard to this and other straight baselines claimed in Decree Law No. 1 that do 
not conform to established principles of international law. 

In 1985, the Government of Portugal claimed a system of straight baselines 
along the mainland coast which was contrary to international law. The United 
States Government, in part, protested as follows: 

The United States is unable to accept as valid the establishment by the 
Government of Portugal of many of the closing lines and straight baselines 
promulgated in the decree. It is the view of the United States that the lines in 
question do not comply with international law which in this case is reflected in 
the 1982 United Nations Convention on the Law of the Sea. . . . The segments 
connecting Cabo Mondego with Farilhoes and Berlenga Islands and thence to 
Cabo da Roca are also invalid as the above islands in no way can be said to meet 
the legal requirement that they constitute a fringe of islands along a coast in its 
immediate vicinity. 

In 1971, through the Supreme Decree No. 959-A, the Government of 
Ecuador claimed a system of straight baselines along mainland Ecuador that did 
not conform to international law. The United States Government, in a note of 
which the following is an excerpt, protested as follows: 

With regard to the baselines from which [the breadth of] the territorial sea of 
mainland Ecuador ... is measured, the United States does not recognize their 
delimitation as valid. In that the mainland baselines do not follow the low water 
line along the coast, two conditions must be fulfilled in order to enable a state to 
draw straight baselines: Either the coastline must be deeply indented and cut into; 
or a fringe of islands along the coast in its immediate vicinity must exist. As it is 
the view of the United States that neither of these conditions is fulfilled, the United 
States does not recognize the mainland straight baselines claimed by Ecuador. 



Baselines 63 

In 1985, Djibouti issued a decree which drew straight baselines to and from 
the mainland around the Seba Islands in the southern reaches of the Strait of 
Bab al Mandeb (see Map 1 1). In 1989 the United States protested these baselines 
on the grounds that the Seba Islands were not fringing islands. The islands lie 
over seven nautical miles offshore and between two and eight miles apart from 
one another. 

In 1968, Mexico decreed straight baselines along portions of the coast of 
the Gulf of California. The Office of the Geographer of the Department of 
State's analysis of those baselines noted that "the northern quarter of the Gulf 
is virtually devoid of islands ... and the coast is relatively smooth, although a 
few bay-like indentations exist." The United States protested the claim in a 
note from the American Ambassador at Mexico City on August 5, 1969. 

Non-independent Archipelagos 

In 1985, the Government of Portugal claimed a system of straight baselines 
around the Azores Islands. The United States Government, in a note of which 
the following is an excerpt, protested as follows: 

Certain of the baselines around the Madeira and the Azores Islands groupings are 
objectionable for the same reasons, i.e., they do not lie in localities where the 
coastlines are deeply indented and cut into nor do they connect a fringe of islands 
along a coast in its immediate vicinity. Moreover, insofar as concerns the Madeira 
and the Azores Island groupings, archipelagic baselines cannot be justified under 
customary international law as reflected in Part IV the 1982 Law of the Sea 
Convention as Portugal is not an "archipelagic state," but in fact comprises a 
mainland continental state with island components. 51 

In 1976, Denmark established straight baselines around the Faroe Islands. 
The United States protested this claim in a note of which the following is an 
extract: 

The United States observes that the baselines around the Faeroes are not straight 
baselines around individual islands, but are lines connecting the outermost islands 
and drying rocks of the Faeroes archipelago. Archipelagic states recognized under 
customary international law, as reflected in the LOS Convention, do not include 
mainland states, such as Denmark and the United States, which possess non-coastal 
archipelagos. Therefore, straight baselines cannot be drawn around mainland 
states' coastal archipelagos, such as the Faeroe Islands. 

The United States also observes that straight baselines could be employed, 
consistent with international law, in certain localities of some of the Faeroe Islands 
which are deeply indented and cut into, or themselves fringed with islands along 
the coast. Furthermore, some of the islands contain juridical bays that could 
lawfully be enclosed by straight baselines. However, in localities where neither 



64 Excessive Maritime Claims 



Map 11 



I 



Djibouti Claimed Straight 
Baselines 

Gulf of Tadjouro closing lines 

cited in Law No. 52/AN/78, 

Januory 9, 1979 

Straight baselines D-H cited in 
Decree No. 85-048, May 5, 1985 



b 



Red 



Sea 



YEMEN 




<9 vj> < ^L3 Perim Island 



°<s 



*% 



(Yemen) 



ETHIOPIA 







y \ Sawabi 
,„ (Seba I si.) 



D J I B U T I 



Obock 



A tar V 
(Oued 4o(orj.y>^A 



Gulf 

o f 
Aden 



Todjourq 



\ 




'A sal 
Lake 



Golfe de 
Tadjoura 



Isles Moucha -. 
(Musha Isl.) \ 

\ 



Dalleyi 
(Oued Dalley) 



J. 



V 



SOMALIA 



10 



20 



30 kilometers 



ETHIOPIA 



10 



20 



30 statute miles 



Names ood boundory representation ore not necessarily authoritative 



10 



20 



30 nautical miles 



Baselines 65 

criteria is met, the method of straight baselines may not be used; rather, in those 
areas the low water line, as depicted on official charts, must be used. 2 

In 1971, through the Supreme Decree No. 959-A, the Government of 
Ecuador claimed a system of straight baselines around the Galapagos Islands. 
The United States Government, in a note of which the following is an excerpt, 
protested as follows: 

With regard to the straight baselines drawn around the Galapagos Islands, such 
straight baselines, which purportedly represent archipelagic baselines as contained 
in article 47 of the 1982 Law of the Sea Convention, may only be employed by 
an archipelagic state, defined in article 46 of the 1982 Law of the Sea Convention 
as "a state constituted wholly by one or more archipelagoes and may include other 
islands." As Ecuador is a continental state and the Galapagos Islands constitute part 
thereof, the United States does not recognize as valid the straight baseline system 
around the Galapagos Islands, for the purpose of delineating internal waters, 
territorial sea, economic zone or continental shelf. 

The United States has protested those portions of paragraph 6(1) of Sudan's 
Territorial Waters and Continental Shelf Act of 1 970 that established straight 
baselines (a) from the mainland to the outer shores of islands which are not more 
than 12 miles from the mainland, (b) from the mainland and along the outer 
shores of all islands forming a chain of islands where the island nearest the 
mainland is not more than 12 miles from the mainland and where each island 
in the chain may be connected by baselines not more than 12 nautical miles 
long, and (c) from the mainland and along the outer shores of all islands forming 
a chain of islands where the island nearest the mainland is more than 12 miles 
from the mainland and where each island in the chain may be connected by 
baselines not more than 12 nautical miles long. 

In 1985, the Government of Canada established straight baselines around the 
perimeter of the Canadian Arctic islands (by Order-in-Council P.C. 1985-2739, 
see Map 1 2) , effective January 1 , 1 986. During bilateral discussions in Washington, 
D.C., on January 10, 1986, the United States stated that the Canadian straight 
baseline claim in the Arctic region was not based upon principles of international 
law and that Canada was not justified in stating that all the waters between Canadian 
islands in the Arctic were internal Canadian waters. The United States' rationale 
was based upon the internationally recognized law of the sea principles. The United 
States position with respect to Canada's straight baseline claim in the Arctic region 
was also addressed in a letter from James W. Dyer, Acting Assistant Secretary of 
State, Legislative and Intergovernmental Affairs, dated February 26, 1986, to Senator 
Charles McC. Mathias, Jr. (R. Maryland): 

On September 10, 1985, the Government of Canada claimed all the waters 
among its Arctic islands as internal waters, and drew straight baselines around its 



66 Excessive Maritime Claims 



Map 12 



CANADIAN ARCTIC STRAIGHT BASELINES 




Baselines 67 

Arctic islands to establish its claim. The United States position is that there is no 
basis in international law to support the Canadian claim. The United States cannot 
accept the Canadian claim because to do so would constitute acceptance of full 
Canadian control of the Northwest Passage and would terminate U.S. navigation 
rights through the Passage under international law. Acceptance would also 
complicate our maintenance of navigation rights in other areas, such as Indonesia 
and the Aegean. 

The Member States of the European Communities also commented on 
Canada's Arctic straight baseline system as follows: 

The validity of the baselines with regard to other states depends upon the relevant 
principles of international law applicable in this case, including the principle that the 
drawing of baselines must not depart to any appreciable extent from the general 
direction of the coast. The Member States acknowledge that elements other than 
purely geographical ones may be relevant for purposes of drawing baselines in 
particular circumstances but are not satisfied that the present baselines are justified in 
general. Moreover, the Member States cannot recognize the validity of a historic tide 
as justification for the baselines drawn in accordance with the order. 

The Member States of the EC cannot therefore in general acknowledge the 
legality of these baselines and accordingly reserve the exercise of their rights in 
the waters concerned according to international law. ' 

Scholars have criticized the straight baselines drawn by the United Kingdom 
around the Falkland Islands (see Map 13) as "a pregnant rectangle . . . extremely 

CO 

inconsistent with the provisions of the 1958 and 1982 Conventions"' and 
Spain's baselines enclosing the Beleanic islands of Majorca, Minorca, Ibiza and 
Formentera in the Mediterranean. 

Baseline Departs from the General Direction of the Coast 
The 1977 Cuban system of straight baselines includes several segments which 
do not follow the general direction of the coast. The analysis of the baselines by 
the Office of the Geographer of the Department of State noted that: 

From point No. 92 to No. 93, the baseline extends northwestward across the 
mouth of the bay to connect with a line of cays that are oriented in the same 
general direction. A more northward-trending line to follow the entire string of 
cays, rather than this particular line of cays, would more aptly define the natural 
closing points of the geographic bay and hence the general direction of the coast. 



From 102 to 107, the straight baselines extend seaward of the Canary Ar- 
chipelago cays to the Isle of Pines. Shorter straight baselines would follow more 
closely the general direction of the coast. 



68 Excessive Maritime Claims 



Map 13 



South 

Atlantic 

Ocean 



Bull 



United Kingdom Straight Baseline Claim 

for the Falkland Islands 

Rased on Falkland Islands 

(Territorial Sea) Order 1989 

Straight baseline 



rQCape 8ougainvtlle 




iondsend RV>^ \e* 
lslon<3 



Cope | fc s\\ <V 
Per c> vol 

'$yt Weddell 
~,lslond 



[MocBride Head 

<Cape Car\?fort 



^Sp^/Seat Rocks 
4 Wolf Rock 



Cope Meredith g 



Baselines 69 



West of the Isle of Pines, the straight baselines again depart from the actual 
general direction of the Cayos de San Felipe and extend seaward directly to Cape 
Frances. The departure advances the baseline approximately 25 nautical miles 
seaward. ° 

The United States Government protested the claim in a note delivered on July 
13, 1983. 61 

The Office of the Geographer of the Department of State has analyzed the 1968 
straight baseline claim by Mexico along portions of the coast of the Gulf of 
California. The analysis noted that in four instances the straight baselines do not 
conform to the general trend of the coast since the lines enclosing the islands of Las 
Animas, San Idelfonso, Tortuga and San Pedro Nolasco all diverged from the coast 
at angles greater than 40 degrees. These angles are maintained over both the local 
and general trends of the coast. The United States protested the claim in a note from 
the American Ambassador at Mexico City on August 5, 1969. 

Waters Are Not Closely Linked to the Land Domain 

In 1977, the Government of Burma enacted a statute establishing a system 
of straight baselines. The straight baseline coordinates from the 1968 legislation 
were not significantly modified in the 1977 Territorial Sea and Maritime Zones 
Law. The most egregious segment is the line segment enclosing the Gulf of 
Martaban, over 222 miles long, one of the longest claimed in the world. The 
eastern two-thirds of this segment deviates 60° from the trend of the delta. At 
one point on this segment the nearest land is 75 miles away and the mouth of 
the Sittang River is over 120 miles distant (see Map 14). The United States 
Government protested as follows: 

As to the system of straight baselines adopted by the Government of Burma in 
the Territorial Sea and Maritime Zones Law, 1977, it is the view of the 
Government of the United States that the baselines of such system have not been 
drawn in accordance with international law. It is a well-recognized principle of 
international law that straight baselines must not depart to any appreciable extent 
from the general direction of the coast. It is the view of the Government of the 
United States that straight baselines of the system adopted by the Government of 
Burma depart to an appreciable extent from the general direction of the coast of 
Burma and that, therefore, the system does not comport with international law. 

The 1977 Cuban system of straight baselines included one 69 mile segment 
in the vicinity of the Bay of Cienfuegos. The United States Government 
protested as follows: 

In Decree Law No. 1 of February 24, 1977, the Government of the Republic 
of Cuba claimed a system of straight baselines connecting 124 points around the 



70 Excessive Maritime Claims 



Map 14 



BURMA: Straight Baselines Claim 




Baselines 71 

entire coast of Cuba. The Government of the United States has studied the straight 
baseline system of Cuba and has concluded that, in a number of areas along the 
coast of Cuba, lines drawn pursuant to Decree Law No. 1 do not conform to 
international law. Included in these objectionable straight baselines is, with 
reference to points established in Decree Law No. 1, the line which connects 
points 101 and 102, in the vicinity of the Bay of Cienfuegos. 

The baseline between points 101 and 102 is 69 nautical miles long and crosses 
an area that contains no islands whatever. Moreover, the coastline in this area is 
not deeply indented and cut into. It is also clear that the sea areas lying within the 
line are not sufficiently closely linked to the land domain to be subject to the 
regime of internal waters. 64 

The United States protested Mexico's 1968 straight baseline claim along 
portions of the coast of the Gulf of California in a note from the American 
Ambassador at Mexico City on August 5, 1969. The protest noted the require- 
ment that the sea areas lying within the baselines be sufficiently closely linked 
to the land domain to be subject to the regime of internal waters was "quite 
clearly not met with regard to the large body of water north of the lines extending 
to San Esteban Island." 

Low-tide Elevation Improperly Used as a Basepoint 

In 1984, the Government of the Federal Republic of Germany claimed, 
contrary to international law, closure lines out to a roadstead situated outside a 
properly delimited territorial sea contrary to international law (see Map 15). The 
United States, in a note of which the following is an excerpt, protested as follows: 

The Department of State refers the Embassy of the Federal Republic of 
Germany to an announcement appearing on page 1366 of Part I of the Bundes- 
gesetzblatt of 12 November 1984 entitled "Bekanntmachung des Beschlusses der 
Bundesregierung Uber die Erweiterung des Kustenmeeres der Bundesrepublik 
Deutschland in der Nordsee zur Verhinderung von Tankerunfallen in der 
Deutschen Bucht." 

.... Equally illegal and without foundation is the use of closure lines out to a 
roadstead situated wholly outside a properly delimited territorial sea. While 
roadsteads normally used for the loading, unloading, and anchoring of ships possess 
the status of territorial sea, the waters between an outlying roadstead and the 
general territorial sea are not territorial in nature, and the high seas freedoms 
applicable to those intervening waters cannot be prejudiced by the coastal state. 

The decision of 12 November 1984 by the Federal Republic of Germany is 
not in accord with established principles of the law of the sea, and with the entry 
into force of the decision on March 16, 1985, the United States must therefore 
protest. The United States refuses to recognize any aspect of the decision which 
purports to extend the territorial sea of the Federal Republic of Germany beyond 



72 Excessive Maritime Claims 



Map 15 



Germany's 

Territorial Sea Extension 

in the North Sea 



Territorial Sea extension 
Straight baselines 



NORDFRIESLAND 

GERMANY 



Three nautical mile territonal sea 

— •- Traffic separation scheme 



J^v^^; Roadstead 



Area between 12 nautical mile arcs 
(drawn from Germany's baseline) 
and roadstead 

Baseline turning point 




Baselines 73 

twelve nautical miles from the baselines from 'which the territorial sea is measured. 
The United States expressly reserves the rights of its nationals, of ships and aircraft 
registered in its territory and of ships and aircraft flying its flag to exercise high 
seas freedoms applicable under international law, including in the areas beyond 
twelve nautical miles. 

The United States has protested that portion of paragraph 6(1) of Sudan's 
Territorial Waters and Continental Shelf Act of 1970 that established baselines 
from the low- water line along shoals situated not more than 12 miles from the 
mainland, arguing that "baselines cannot be drawn to or from shoal waters which 
are not low tide elevations that have a lighthouse or similar installation, 
permanently above sea level, erected thereon". 

Terminus Located on a Maritime Boundary at Sea 

In a declaration issued November 12, 1982, the Government of Vietnam 
claimed a system of ten straight baseline segments, the yet- to-be-defined 
terminus of which in the Gulf of Thailand, point 0, is "located on the high sea 
and on a straight line Unking the Tho Chu Archipelago to the Poulo Wai Island" 
(see Map 10). In analyzing the baseline claim, the Office of Geographer of the 
Department of State commented: 

The Vietnamese-proposed point is neither a high-tide elevation nor a 
low-tide elevation with a permanent structure; therefore, a basepoint at point 
appears to be in violation of [article 4 of the 1958 Territorial Sea and the 
Contiguous Zone Convention and article 7 of the 1982 Law of the Sea Conven- 
tion].^ 

In 1971, through the Supreme Decree No. 959-A, the Government of 
Ecuador claimed a system of straight baselines along mainland Ecuador that 
ended at sea on the Ecuador-Peru maritime boundary. The United States 
protested in a note from American Embassy Quito delivered on February 24, 
1986. 69 

On January 30, 1961, Uruguay and Argentina signed a Declaration pur- 
porting to draw a straight line uniting Punta del Este, Uruguay with Punta Rasa, 
Cape San Antonio, Argentina. The line runs across the mouth of the River Plate 
which forms a portion of the boundary between those two countries (see Map 1). 
On January 23, 1963, the United States protested arguing that the Declaration 
ran counter to international law and that Article 13 of the Territorial Sea 
Convention (now Article 9 of the LOS Convention), relating to river mouths, 
was not applicable to the PJver Plate, since it did not belong solely to one State. 
The United Kingdom (on December 26, 1961) and the Netherlands (on June 
26, 1962) also protested on this basis. The United Kingdom and the United 
States also protested stating that this line could not be justified as a bay closing 
line since the bay was a multinational bay. 



74 Excessive Maritime Claims 

Terminus Located on the Territory of Another State 

In 1971, Ecuador established straight baselines along its Pacific coast, beginning 
at Cabo Manglares, Colombia, which is neither a juridical nor a historical bay. In 
1986, the United States protested the straight baseline system of Ecuador. 

In 1956, the President of Venezuela issued a decree establishing a 99 mile 
long straight baseline closing the delta of the Orinoco River, the eastern terminus 
of which lays 26 miles east of Punta Playa, the coastal terminus of the current 
Guyana- Venezuela boundary (see Map 16). While Venezuela has laid claim to 
this territory as far as the Essequibo River, Guyana has rejected this claim. 

This decree was issued pursuant to Article 2 of the 1956 Venezuelan Law 
on Territorial Waters, the Continental Shelf, Conservation of Fisheries and 
Airspace, which permitted the drawing of straight baselines "when cir- 
cumstances impose a special case due to the configuration of the coast line, 
to the existence of islands close to it, or when the particular interests of a 
determined region justify it." This provision of the 1956 decree was protested 
by the United States in 1956. 

Basepoints Located at Sea 

On May 29, 1972, the Maldives Government transmitted to the United Nations 
Secretariat a note that "according to the Constitution of the Republic of Maldives 
the Territorial Limits of the Republic of Maldives are defined as follows": 

"The Territory of the Republic of Maldives is the islands situated between 
latitudes 07.09 V^ degrees North [7°09'30"N], and 0.45 V\ degrees South 
[0°45'15 M S], and longitudes 72.30 Vl degrees East [72°30'30 M E], and 73.48 degrees 
East [73°48'E], and the sea and air surrounding and in between the islands. "'* 

(See Map 17.) 

The Geographer of the Department of State commented that: 

The legal status of the rectangle formed by the straight lines along the above parallels 
and meridians is not specified in the Constitution. If these coordinates are meant to 
delimit the outer limits of the Maldivian territorial sea, the validity of the lines is 
questionable because they do not relate direcdy to the atolls of the state. 



It is possible that the Maldivian Government considers this rectangle to be a 
national baseline. But to consider lines situated from 2.75 to more than 55 nautical 
miles from the coastline as national baselines would be contrary to any state 
practice and to international legal norms/ 5 

The 1964 Maldives Constitution had defined the Republic as "the Islands and the sea 
and air surrounding and in between Latitudes 7°10-W [North] and 0°45-Vi' [South] 



Map 16 



Baselines 75 




60* 



ATLANTIC 
OCEAN 



59' 



9'- 



Venezuela 
Straight 

Presidential 



Baseline 



Decree, 



July 10, 1968 

A 9* 21' 30" N 

' 60* 52' 00" W 

B 8" 26' 00" N 
59* 34' 30" W 



iM 



:59" 



The map is illustrative only. The depictions of Venezuelan 
basepoints A and B on this map are approximate. 



Names and boundary representation 
are not necessarily authoritative. 



76 Excessive Maritime Claims 



Map 17 



- 101M- 



-8"N 



72 ' a 



i 74 




> .'• ■' .• ■' .'• ■■ .'• ■ .'• ■' ,'>■' ' ' ■ .' > 



INDIA 




lOTsl- 



:-8>Jv* 



-6"N 



r 



r^c 






* S 



1 



SRI 
LANKA\ 



■6H'* 



-4"N 



C 



,<3 



IVESr\ j 



P 

Q 
— d 1 



4-N - 



-2>J- 



i / 



2"N 



-0' 



-2"S 



6 



I S? I 



t 



Maldives : 

Claimed Territorial Sea and 

Exclusive Economic Zone 



-- o- - 



Territorial sea 

Exclusive economic zone 



I 



2*S- 



70- 



72- 



74' 



76- 
—L. 



78' 



80" 



Nomes and boundary ore not necessarily authoritative 



Baselines 77 

and longitudes [East] 12°29-Va and 73°49\" In protesting the Constitutional 
delimitation and subsequent delimitation of the Maldives exclusive economic zone 
with reference to geographic coordinates in the Indian Ocean, the United States said: 

The Constitution and Laws of the Republic of Maldives purport to delimit the 
territorial sea and the claimed exclusive economic zone of the Republic of 
Maldives by reference to geographic coordinates in the high seas. 

Such claims have no basis in international law. In asserting jurisdiction over 
areas extending seaward from its land territory, a coastal state must measure the 
breadth of any such areas from baselines drawn in accordance with international 
law. The normal baseline is the low-water line along the coast, and the limited 
exceptions to this rule only allow for the use of straight baselines to connect coastal 
features in certain circumstances. . . . 

Terminus Not Located on Own Mainland 

During the Third United Nations Conference on the Law of the Sea, the 
Government of Bangladesh proposed to reformulate the criteria for establishing 
straight baselines for those States that have shores marked by continuous fluvial 
erosion and sedimentation as a result of river flooding, sudden rainfall, hurricanes 
and other adverse weather factors. The United States responded to this proposal 
to reformulate Article 7(2) in a letter from the Department of State on April 25, 
1978, which said in part: 

Although the People's Republic of Bangladesh may have unique interests in the 
area due to a combination of geographic, historic, and economic considerations, the 
United States cannot support a system of straight baselines for the purpose of 
delimitation of the territorial sea which does not use fixed terrestrial (as opposed to 
maritime) points no further seaward than the appropriate low water mark. 

This proposal was not incorporated into the LOS Convention. 

Overlarge Bays and Gulfs 

On October 14, 1988, the Government of Costa Rica issued Decree no. 
18581-RE establishing straight baselines along its Pacific coast (see Map 18). The 
United States protested the segments in three areas which do not meet the 
applicable criteria: 

. . . several segments, which close off geographical bays, are longer than twenty- 
four nautical miles and therefore exceed the juridical bay closing line length that 
is permitted under international law. 

It is therefore the view of the Government of the United States that the straight 
baseline system established by the Government of Costa Rica does not meet the 
criteria for straight baselines nor do those lines properly constitute juridical bay 



78 Excessive Maritime Claims 



Map 18 



COSTA RICA: STRAIGHT BASELINE CLAIM 




Baselines 79 

closing lines in the circumstances that are recognized in customary international 
law, as reflected in the 1982 United Nations Convention on the Law of the Sea. 

The most egregious example of a Costa Rican excessive straight baseline is the 
89 mile-segment between Cabo Blance and Isla del Cano. 79 

With regard to the excessive maritime claim of Libya in the Gulf of Sidra, 
in December 1986, the U.S. Department of State, Bureau of Public Affairs, 
published "Navigation Rights and the Gulf of Sidra," in GIST, a reference aid 
on U.S. foreign relations, in part as follows: 

Background: In October 1973, Libya announced that it considered all waters in the 
Gulf of Sidra south of a straight baseline drawn at 32 degrees 30 minutes north 
latitude to be internal Libyan waters because of the gulfs geographic location and 
Libya's historic control over it. The U.S. and other countries, including the USSR, 
protested Libya's claim as lacking any historic or legal justification and as illegally 
restricting freedom of navigation on the high seas. Further, the U.S. Navy has 
conducted many operations within the gulf during the past 12 years to protest the 
Libyan claim. These exercises have resulted in two shooting incidents between 
Libyan and U.S. forces. The first was in 1981, when two Libyan aircraft fired on 
U.S. aircraft and were shot down in air-to-air combat, and the second in March 
1986, when the Libyans fired several missiles at U.S. forces and the U.S. responded 
by attacking Libyan radar installations and patrol boats. 



Current law and customs: .... Beyond lawfully closed-off bays and other areas along 
their coasts, nations may claim a "territorial sea" of no more than 12 nautical miles 
in breadth (measured 12 miles out from the coast's low water line — or legal 
straight baseline) within which foreign vessels enjoy the limited navigational "right 
of innocent passage." .... 

Since Libya . . . meets no other international law criteria for enclosing the Gulf 
of Sidra, it may validly claim a 12-nautical mile territorial sea as measured from 
the normal low- water line along its coast. 80 

(See Map 4.) 

On December 29, 1966, Argentina promulgated Law No. 17094 in which 
it drew straight baselines across the mouths of San Jorge and San Matias gulfs. 
The State Department Geographer's analysis of these baselines states: 

Golfo San Matias and Golfo San Jorge do not conform to the requirements of 
a juridical bay in that they can not be closed by 24 nautical mile closing lines. 
They both, however, would meet the semi-circle criterion and could qualify as 
oversize bays. The closing line for San Matias measures approximately 65 nautical 
miles while that for San Jorge, 123 nautical miles. 81 



80 Excessive Maritime Claims 

In 1988, Mauritania adopted an ordinance which sought to establish a 
straight baseline linking Cap Blanc and Cap Timiris in the vicinity of the Banc 
d' Arguin (see Map 19). The United States protested this claim in a note which 
stated in part: 

The coast in the vicinity of Banc d' Arguin is neither deeply indented nor bounded 
by a fringe of islands. Furthermore, the enclosed waters along the Banc d' Arguin 
do not meet the requirement of a juridical bay; the closing line is almost 90 nautical 
miles in length. 82 

The United States has protested that portion of paragraph 6(1) of Sudan's 
Territorial Waters and Continental Shelf Act of 1970 claiming closing lines from 
headland to headland across the mouth of bays regardless of their width. 

Baselines Not Published 

Attached to a 1972 Haiti decree establishing its territorial sea is a very small 
scale map (1:5,000,000) illustrating an irregular polygonal outer limit for the 
territorial sea, using specified coordinate pairs for turning points. When plotted 
on a larger scale chart, the inner limit of the claimed territorial sea (constructed 
from a similar polygon situated 12 miles landward of the outer territorial sea 
limits) does not relate directly to the low- water line of the Haitian coast as 
asserted in Article 1 of the decree. The Haitian Government subsequently 
described the system as utilizing droites paralleles from the most seaward points of 
the Haitian coast. In 1973, the United States protested this system in a note 
stating that: 

neither the scale of the map chosen for the delimitation of the Haitian baselines 
nor the use and choice of the points meet Convention requirements. * 

On August 1, 1977, the Army Command of the People's Democratic 
Republic of Korea announced the establishment of a 50-mile maritime 
boundary, measured from a claimed straight baseline from the territorial sea as 
drawn in the Sea of Japan (East Sea), and a military maritime boundary coincident 
with the claimed exclusive economic zone limit in the Yellow Sea (West Sea). 
No precise delineation of the baselines or the limits of the military boundaries 
were given. The United States communicated its protest of these military 
boundaries in a Note to the United Nations dated January 4, 1990. 

In 1971 , Malta enacted a statute stating that its territorial sea is to be measured 
from the "low water mark on the method of straight baselines joining appropriate 
points." Although no coordinates have been published, in 1983 Malta published 
a map showing straight baselines around the outer limits of the four Maltese 
islands. In a note to the Maltese Embassy in Washington, the Department of 



Baselines 81 



Map 19 



-2V- 



20"- 



Western 
Sahara 



Cap Blanc 




Mauritania: Claimed 
Straight Baseline 

Law 76-025 
January 21, 1967 



'£g.2V- 



MAURITANIA 



;20' 



ATLANTIC 
OCEAN 



19* 



L 



h9 - - 



Names and boundary representation are not necessarily authoritative 



82 Excessive Maritime Claims 

State stated that it did not recognize that claim which had been repeated in 
Maltese Act XXVIII of 1981. 86 

In 1970, Sudan enacted legislation defining how straight baselines were to 
be drawn on large-scale maps recognized by Sudan. The United States has not 
received a response to its note delivered June 6, 1989, inquiring as to whether 
those maps, or a list of coordinates, had ever been published. 

Notes 

1 . The baseline provisions of the 1982 LOS Convention are examined in U.N. Office for Oceans Affairs 
and the Law of the Sea, The Law of the Sea: Baselines (U.N. Sales No. E.88.V.5* (1989)) [hereinafter U.N. 
Baselines]. The U.S. Department of Defense publication, Maritime Claims Reference Manual, DoD 2005. 1-M 
(1990) [hereinafter MCRM]; U.N. Office for Ocean Affairs and the Law of the Sea, Baselines: National 
Legislation with Illustrative Maps (U.N. Sales No. E.89.V.10 (1989)) [hereinafter U.N. Baselines: National 
Legislation]; and ATLAS OF THE STRAIGHT BASELINES (Scovazzi ed., 2d ed. 1989) [hereinafter Scovazzi, 
ed.] detail the baseline claims of the coastal and island States. 

2. Territorial Sea Convention, article 3; LOS Convention, article 5. 

3. State Department File No. P84 0040-1938, in response to Canadian Aide Memoire ofjanuary 20, 1984, 
State Department File No. P84 0012-1925. 

4. Definition 50, in Consolidated Glossary of Technical Terms used in the United Nations Convention 
on the Law of the Sea, International Hydrographic Bureau Special Pub. No. 51, A Manual on Technical 
Aspects of the United Nations Convention on the Law of the Sea, 1982, Part I, reprinted in U.N. Baselines 
58. Since 1980, the United States has used a uniform, continuous Chart Datum of Mean Lower Low Water 
for all tidal waters of the United States, the Commonwealth of Puerto Rico, Guam, American Samoa, United 
States Virgin Islands, Commonwealth of Northern Mariana Islands, and its other territories and possessions. 
45 Fed. Reg. 70,296-97 (Oct. 23, 1980); HICKS, TIDE AND CURRENT GLOSSARY 3 & 15 (NOAA 1989). 

5. CHURCHILL & LOWE, THE LAW OF THE SEA at 46 (2d rev. ed. 1988) [hereinafter CHURCHILL 

& Lowe]. 

6. Territorial Sea Convention, article 8; LOS Convention, article 11. 

7. United States v. Louisiana, 394 U.S. 11, 36-38, 89 S.Ct. 773, 787-89, 22 L.Ed.2d 44 (1969). 

8. LOS Convention, article 11. 

9. LOS Convention, article 6. The reef must be charted as being above the level of chart datum. 

10. CHURCHILL & LOWE at 33. Reisman and Westerman warn "the chief practical effect of a straight 
baseline claim is to augment the areas of internal and territorial waters within State control. When individual 
baseline segments are very long, however, significant areas of continental shelf and exclusive economic zone 
are also gained." REISMAN AND WESTERMAN, STRAIGHT BASELINES IN INTERNATIONAL MARITIME 
BOUNDARY DELIMITATION 105 (1992) [hereinafter REISMAN & WESTERMAN]. 

11. Territorial Sea Convention, article 4(2); LOS Convention, article 7(3). 

12. Territorial Sea Convention, article 4(6); LOS Convention, article 16. 

13. LOS Convention, article 7(2). Applicable deltas include those of the Mississippi and Nile Rivers, and 
the Ganges-Brahmaputra River in Bangladesh. U.N. Baselines 24 para. 50; PRESCOTT, MARITIME AND 
POLITICAL BOUNDARIES OF THE WORLD, 15 (1985) [hereinafter PRESCOTT]; REISMAN & WESTER- 
MAN, supra n. 10, at 101-02. 

14. Territorial Sea Convention, article 13; LOS Convention, article 9. The Conventions place no limit 
on the length of this line. Further, the Conventions do not state exactly where, along the banks of estuaries, 
the closing points should be placed. No special baseline rules have been established for rivers entering the sea 
through deltas, such as the Mississippi, (i.e., either the normal or straight baseline principles above may apply) 
or for river entrances dotted with islands. 

Further, the Conventions do not address ice coast lines, where the ice coverage may be permanent or 
temporary. The U.S. Government considers that the edge of a coastal ice shelf does not support a legitimate 
baseline. 

15. Territorial Sea Convention, articles 11 Sc 4(3); LOS Convention, articles 13 & 7(4). Low-tide 
elevations can be rocks, mud flats, or sand bars. 

16. 381 U.S. 139, 167-69, 85 S.Ct. 1401, 14 L.Ed.2 296, 314-15 (1965). See also Louisiana Boundary Case, 
394 U.S. 11, 36-38, 89 S.Ct. 773, 787-89, 22 L.Ed.2d 44 (1969) and Alabama and Mississippi Boundary Case, 
470 U.S. 93, 99, 105 S.Ct. 1074, 84 L.Ed.2 73, 79 (1985). 



Baselines 83 

17. The judgment of Professors Reisman and Westerman is that only "a small number of straight baseline 
claims appear to be in substantial conformity" with international law, mentioning Norway, Sweden, Finland, 
Canada, Ireland, and The Netherlands, among others. They are of the view, however, that "there is probably 
no State to date which has entered a comprehensive claim which could be characterized as totally conforming." 
REISMAN & WESTERMAN, at 107 & n. 5. 

18. See infra text accompanying n. 63. 

19. For additional analysis of the Colombian straight baseline claim, see Limits in the Sea No. 103, Straight 
Baselines: Colombia (1985). 

20. [W]here a baseline is clearly contrary to international law, it will not be valid, certainly in respect 
of States which have objected to it, though a State which has accepted the baseline (for example 
in a boundary treaty) might be estopped from later denying its validity. In border-line cases — 
for example, where there is doubt as to whether a State's straight baseline system conforms to all 
the criteria laid down in customary and conventional law — the attitude of other States in 
acquiescing in or objecting to the baseline is likely to prove crucial in determining its validity. 

CHURCHILL & LOWE, at 46-47. 

21. Scholars have criticized aspects of the following claims, as noted: 

Australia: PRESCOTT 183; REISMAN & WESTERMAN 121-22. 

Cambodia: REISMAN & WESTERMAN 172. 

Chile: RilSMAN & WESTERMAN 175; Limits in the Seas No. 80. 

Denmark (Faroes): PRESCOTT 261. 

France: PRESCOTT 314; REISMAN & WESTERMAN 129; Limits in the Seas No. 37. 

Guinea-Bissau: PRESCOTT 316 (1978 law); Limits in the Seas No. 30. 

Iceland: PRESCOTT 260 (1972 Regulations); REISMAN & WESTERMAN 125; 

Limits in the Seas No. 34 (rev.). 

Iran: REISMAN & WESTERMAN 183. 

Italy: PRESCOTT 297-98; REISMAN & WESTERMAN 31, 133, 135. 

Korea, South: PRESCOTT 239; REISMAN & WESTERMAN 178; Limits in the Seas No. 82. 

Madagascar: REISMAN & WESTERMAN 147; Limits in the Seas No. 15. 

Norway (Jan Mayen): PRESCOTT 259. 

Portugal: PRESCOTT 315 (1985 law). 

Soviet Union: REISMAN & WESTERMAN 150-51; Limits in the Seas Nos. 107 & 109. 

Spain: PRESCOTT 156-57; REISMAN & WESTERMAN 297, 314-15. 

Tunisia: PRESCOTT 297. 

22. REISMAN & WESTERMAN, at 120-21. 

23. Reisman & Westerman assert the majority of excessive straight baseline claims fail to meet the threshold 
test. REISMAN & WESTERMAN, at 118 & 120. 

24. Diplomatic Note dated Dec. 18, 1989 from American Embassy San Jose, reprinted in Limits in the Seas 
No. Ill, and American Embassy San Jose telegram 15581, Dec. 18, 1989. Costa Rica's decree No. 18581 -RE, 
of Oct. 14, 1988, may be found in Limits in the Seas No. Ill, Straight Baselines: Costa Rica (1990). 

25. Limits in the Seas No. 103, at 8 (1985). The study also notes that several juridical bays could be 
enclosed by properly drawn closing lines. These include in the Caribbean: Honda Bay, El Portete Bay, the 
waters between Cape de la Aguja and Tajamar Bocas de Ceniza (point 7), Morrosquillo Gulf, and Uruba Gulf; 
and on the Pacific side: Cupica Gulf, Buenaventura Bay, and Rada de Tumaco. 

26. American Embassy Bogota Note No. 500 dated July 14, 1988. State Department telegram 019016, 
Jan. 22, 1988; American Embassy Bogota telegram 10640, July 15, 1988. REISMAN & WESTERMAN, at 
144-47 & 175, strongly criticize this claim, particularly the 130 mile segment enclosing the large but shallow 
curvature between Cabo de la Vela and Cabo de la Aguja. The Colombian Presidential Decree No. 1436 of 
1984 may be found in Limits in the Seas No. 103, at 1-3, and in U.N. Baselines: National Legislation 107-1 11. 

27. American Embassy Muscat Note 0606 dated Aug. 1 2, 1 991 , delivery of which was reported in American 
Embassy Muscat telegram 03528, Aug. 13, 1991, pursuant to instructions contained in State Department 
telegram 187028, June 9, 1990. Oman replied in a note to the American Embassy Muscat dated Dec. 2, 1991 
that the baselines were "drawn with a view toward maintaining the distinguishing economic interests of the 
region in question, interests which have established their significance and importance over a long period." 
American Embassy Muscat telegram 5320, Dec. 4, 1991. It should be noted that, under article 7(5) of the 
LOS Convention, such economic interests can be taken into account only when the basic geographic criteria 
of article 7(1) are met. Oman's notice of June 1, 1982 establishing these straight baselines may be found in 
U.N. Office of the Special Representative of the Secretary-General for the Law of the Sea: Current 
Developments in State Practice 80-81 (U.N. Sales No. E.87.4.3, 1987) [hereinafter U.N. Current Develop- 
ments No. I]; U.N., Baselines: National Legislation 247-48; and II MCRJ^/i 2-239 to 2-240. See Limits in the 
Seas No. 113 (Mar. 1992). Iran's protest Note dated Feb. 4, 1983, of Oman's straight baselines, originally 



84 Excessive Maritime Claims 

circulated by the UN Secretary-General as Sote Verbale LE 1 13(3.3) of June 21, 1983, may be found in U.N. 
Current Developments No. 1 at 82. 

28. American Embassy Cairo Note delivered June 13, 1991, State Department telegram 188615, June 8, 
1991, American Embassy Cairo telegram 11009, June 19, 1991. Presidential Decree No. 27/90 concerning 
the baselines of the maritime areas of the Arab Republic of Egypt, Jan. 9, 1990, is reproduced in U.N. LOS 
BULL., No. 16, Dec. 1990, at 3-1 1 and Limits in the Seas No. 1 16, at 4 and 6 (1994). 

29. American Embassy at Lisbon note based on instructions transmitted in State Department telegram 
266998, Aug. 25, 1986. The Portuguese Ministry of Sea Decree Law No. 495/85 of Nov. 29, 1985 may be 
found in II MCRM 2-363 to 2-367, and U.N. Baselines: National Legislation 260-66. 

30. French Embassy at Tirana Note delivered on July 21, 1989, on behalf of the United States, State 
Department telegram 193134 (to Paris), June 17, 1989, and Limits in the Seas No. 116, Annex 3 (1994). 
PRESCOTT, at 67-68 & 296 similarly criticizes this claim. The Albanian Decree No. 4650 of Mar. 9, 1970 
as amended by Decree No. 5384 of Feb. 23, 1976 may be found in U.N. Legislative Series B/19, at 3 and 
Limits in the Seas No. 1 16, Annex 2 (1994). U.N. Baselines: National Legislation 1, Decree No. 7366 of Mar. 
24. 1 990. making further amendment to these decrees, is annexed to U.N. Doc. A/45/261 , and is reproduced 
in U.N. LOS BULL., No. 16, Dec. 1990, at 2. (See Map 9.) 

31. Diplomatic note from American Embassy Dakar delivered Nov. 29, 1989, State Department telegram 
301866, Sept. 20, 1989. The Senegalese Decree No. 72-765 of July 6, 1972 may be found in Limits in the 
Seas No. 54, Oct. 11, 1973 and in U.N. Baselines: National Legislation 274-75. PRESCOTT, at 64 & 315, 
similarly criticizes this claim, as do R£ISM\N & WESTERMAN, at 125-26 & 147-50. 

32. Limits in the Seas No. 40, Mar. 7, 1972, which includes a translation of Decree No. 244. See also 
U.N. Legislative Series: National Legislation and Treaties Relating to the Law of the Sea, U.N. Doc. 
ST/LEG SER. B/15, at 87 [hereinafter U.N. Legislative Senes] (130 mile territorial sea claim); Decree 
426/PRG of Dec. 31, 1965, (proclaiming a 200 mile territorial sea) may be found in U.N. Legislative Series 
B/19 at 32-33. 

33. American Embassy Conakry Note No. 25, Dec. 4, 1964, reported in its Airgram No. 123 of Dec. 
17, 1964, State Department File No. POL-334-GUIN, pursuant to instructions contained in State Department 
Airgram No. A-27 of Nov. 27, 1964, State Department File No. POL 33-4 GU1N. REISMAN & 
WESTERMAN at 131, and PRESCOTT at 316-17, also criticize this claim. 

34. Article 1 of Decree No. 336/PRG/80, July 30, 1980, reprinted in U.N. LOS BULL., No. 2, Dec. 
1983, at 37. During oral proceedings before the Arbitration Tribunal for the Delimitation of the Maritime 
Boundary between Guinea and Guinea-Bissau. Guinea was represented as having set aside this decree. Award 
of February 14. 1985, para. 96, reprinted \n 25 I.L.M. 292 (1986). However, a recent UN compilation of 
relevant national legislation quotes the 1980 decree as still being in force. U.N. Law of the Sea: National 
Claims to Maritime Jurisdiction 59 (U.N. Sales No. E.91.V.15, 1992). 

35. American Embassy Yaounde Sole VerbaU No. 207, dated May 15, 1963, reported in American Embassy 
Yaounde Airgram A-135, Feb. 20, 1963, protesting Cameroon Decree No. 62/DF/216 of June 25, 1962, 
State Department File POL 33-4 CAM. This baseline claim was slighdy revised in Decree No. 71/DF/416 
of Aug. 26, 1971 which may be found in U.N. Legislative Series B/19, at 131 (French) and in U.N. Baselines: 
Nanonal Legislation 67 (English translation). REISMAN & WESTERMAN criticize three of these segments for 
enclosing shallow local indentations that do not qualify - as juridical bays (while accepting two others as such), 
and note that "the waters enclosed are no more closely linked to the land domain than if the coast were totaDy 
unindented in those localities." The Government of Cameroon has indicated its intention to conform its 
legislation to the provisions of the Law of the Sea Convention which it has ratified. American Embassy Yaounde 
telegram 00665, Jan. 23, 1991. 

36. Order-in-Council 1967-2025 may be found in U.N. Legislative Series B/15, at 52-54. Order-in- 
Council 1969-1 109 may be found in U.N. Legislative Series B/16, at 6-9. The 1972 revision of these baselines 
may be found in U.N. Baselines: National Legislation 69-85. 

37. Sole verbale from the United States Department of State to Embassy of Canada, dated Nov. 1, 1967, 
as reported in a telegram from the Department of State to American Embassy Ottawa dated Nov. 2, 1967, State 
Department File No. POL 33-8 CAN-US, reprinted in Annex 4 to volume I of the Documentary Annexes to 
the United States Reply in the Gulf of Maine Case before the I.C.J. (1983), and in 5 id. Pleadings, Oral 
Arguments, Documents 503 (I.C.J. 1984). 

The Government of Canada responded to the United State's note as follows: 

The Embassy of Canada presents its compliments to the Department of State and has the honour 
to refer to the United States Aide-Memoire of November 1. The Canadian Government has noted 
the objections raised in that Aide-Memoire concerning the decision of the Canadian Government to 
implement the straight baseline system as a means of delineating the baselines from which Canada's 
territorial sea and contiguous zones are measured. The Canadian Government is satisfied that the 



Baselines 85 

straight baseline system is being implemented by Canada in a manner wholly in accordance with the 
recognized principles of international law and regrets that it is not able to agree with the interpretation 
which has been placed on this action by the Government of the United States. 

Aide memoire from the Embassy of Canada to the Department of State, dated Nov. 11, 1967, State Department 
File No. POL 33-4 CAN-US, reprinted in Annex 4 to volume I of the Documentary Annexes to the United 
States Reply in the Gulf of Maine Case before the I.C.J. (1983), and in 4 id. Pleadings, Oral Arguments, 
Documents 474. On the other hand, PRESCOTT, at 314, considers the straight baselines along the south and 
east coasts of Newfoundland and the coasts of Nova Scotia to "have been drawn in a meticulous fashion." 
While generally treating the Canadian baselines for Vancouver and Queen Charlotte Islands as substantially 
conforming to the LOS Convention, PvEISMAN & WESTERMAN note that in the case of Vancouver "there 
is a severe departure from the coastline between segments 23 and 26 and in several cases, rocks are used as 
basepoints." REISMAN & WESTERMAN, at 111. Their criticism of certain lines along the coasts of 
Newfoundland and Baffin Island is detailed at pages 166-68. 

38. Note from the Secretary of State to Embassy of Canada, dated April 25, 1969, State Department File 
No. POL 33-8, reprinted in Annex 4 to volume I of the Documentary Annexes to the United States Reply in 
the Gulf of Maine Case before the I.C.J. (1983), and in 5 id. Pleadings, Oral Arguments, Documents 503-04 
(I.C.J. 1984). The baselines may be found in I MCRM 2-74 to 2-94. PRESCOTT, at 239, while asserting the 
coastlines of Vancouver Island and Queen Charlotte Islands are "certainly cut into and deeply indented" and 
that "it is apparent that straight baselines should be used", criticizes the baseline system for terminating on 
islands, since it is "impossible to know the exact extent of internal waters." He righdy points out "the baseline 
must terminate on the mainland, or in this case on the main island, so that the area of internal waters is 
completely defined." Canada's Arctic straight baselines are discussed below beginning at text accompanying 
n. 55. 

39. Washington Post, May 22, 1987, at A34; Pravda, May 23, 1987, 2d ed., at 5 & Sovetskaya Rossiya, 
May 23, 1987, 1st ed., at 3, in FBIS-SOV-87- 107, June 4, 1987, at A2-A4; 39 Current Dig. Soviet Press, 
June 24, 1987, at 18; U.S. Nav. Inst. Proc, at 231 (May 1988). The USSR Council of Ministers Declaration 
4450, Jan. 15, 1985, and Declaration 4604, Feb. 7, 1984, may be found in U.N. Baselines: National Legislation 
315-70, and in II MCRM 2-456 to 2-504. 

40. Washington Post, Feb. 19, 1992, at Al, A24; N.Y. Times, Feb. 19, 1992, at A6; FBIS-SOV-92-032, 
Feb. 18, 1992, at 7; FBIS-SOV-92-033, Feb. 19, 1992, at 5; FBIS-SOV-92-034, Feb. 20, 1992, at 14-15; 
FBIS-SOV-92-037, Feb. 25, 1992, at 6; FBIS-SOV-92-046, Mar. 9, 1992, at 12. 

41 . U.S. Mission to the United Nations in New York Note dated Dec. 6, 1 982, State Department telegram 
334675, Dec. 1, 1982. The Vietnamese declaration of Nov. 12, 1982 may be found in Limits in the Sea No. 
99 (1983) and in U.N. Baselines: National Legislation 384-387. Protests of this decree by China and Thailand 
may be found in U.N. Docs. A/37/682-S/ 15505 of Nov. 30, 1982 (China) and A/40/1033 of Dec. 12, 1985 
(Thailand) and in U.N. Current Developments No. I, at 145 (China) and 147-48 (Thailand) (U.N. Sales No. 
E.87.V.3 (1987)); the French protest of Dec. 5, 1983 may be found in id. at 146. The Federal Republic of 
Germany also protested this claim in June 1984. 

42. Limits in the Sea No. 99, at 10. Accord, PRESCOTT, at 212, and REISMAN & WESTERMAN, at 133, 
135-36. 

43. American Embassy Muscat Note 0606 dated Aug. 12, 1991, supra n. 27. 

44. American Embassy Rome note 1174 delivered Dec. 10, 1986. State Department telegram 309312, 
Oct. 1, 1986; American Embassy Rome telegram 29799, Dec. 16, 1986. The Italian Presidential Decree No. 
816 of Apr. 26, 1977 and its accompanying chart may be found in 2 WESTERN EUROPE AND THE 
DEVELOPMENT OF THE LAW OF THE SEA 147-53 (F. Durante & W. Rodino eds., 1979), and in U.N. 
Baselines: National Legislation 201-06. 

45. Limits in the Seas No. 76, at 7-8 (1977). 

46. Department of State Note dated July 5, 1983, to the Cuban Interests Section of the Embassy of 
Czechoslovakia. PRESCOTT, at 337, also criticizes these segments. REISMAN & WESTERMAN, at 122, 
criticize other segments. The Cuban Decree Law No. 1 of February 24, 1977, may be found in Limits in the 
Seas No. 76, which also analyzes the baseline segments, and in U.N. Baselines: National Legislation 112-1 18. 
Cuba responded to a similar protest made by U.S. Interests Section, Embassy of Switzerland, Note No. 259 
of May 14, 1984, in part as follows: 

The Ministry of Foreign Relations presents its compliments to the Embassy of Switzerland, U.S. 
Interest Section, and takes this opportunity to refer to the Section's Note No. 259, dated May 14, 
1984, concerning the protest contained in the Ministry's Note No. 484, dated Mar. 29, 1984, regarding 
the violation of the Republic of Cuba's sovereign air space over its territorial sea south of Baitiquiri, 
Guantanamo Province. 



86 Excessive Maritime Claims 

In the aforementioned Note No. 259, the U.S. authorities attempt to shirk their responsibility for 
these violations, and once again tendentious arguments are used with regard to the drawing of Cuban 
base lines from which the breadth of the territorial sea, and thus sovereignty over the corresponding 
air space, is measured. 

It does not fall within the jurisdiction of the United States Government to analyze, much less 
approve, Cuban base lines. With a view to aiding the U.S. authorities in correcting their reasoning, 
however, the Cuban authorities would like to remind them that there is no rule of international law 
that stipulates that one State must approve the base lines drawn by another State. 

In the case of the territorial sea of Cuba relative to the United States of America, there is no possible 
justification for analysis, inasmuch as no U.S. island or territory was affected. One State's sovereignty 
over its air space and territorial sea has been violated by another State, and efforts have been made to 
cloud the issue of this violation. 

It should be recalled that the 1958 Geneva Convention on the Territorial Sea and the Contiguous 
Zone cannot be invoked, inasmuch as the Republic of Cuba is not a party to it, nor can the 1982 
Convention on the Law of the Sea be invoked inasmuch as the United States of America has not even 
signed it. Since it has been cited, however, it should be noted that the latter Convention contains no 
provision whatsoever on extending straight base lines between points, except with respect to 
archipelagic States (which Cuba is not), which may draw their base lines up to 100 nautical miles, 
except that 3% of the lines may extend 125 miles (Article 47, paragraph 2). Furthermore, Decree-Law 
No. 1 of February 24, 1977, which established the points of the straight Cuban base lines, was enacted 
well before conclusions were made on the drawing of these lines at the Third United Nations 
Conference on the Law of the Sea, which from its beginning imperiled, or at least rendered obsolete 
the precepts of, the above-cited 1958 Geneva Convention. 

Nevertheless, in the absence of an international standard accepted worldwide, legal provisions on 
the drawing of Cuban baselines reflect the most advanced thinking of that time, and incorporate the 
criteria used by the Cuban people as far back as 1934 in Decree-Law No. 8, in which they claimed 
their internal waters. 

Because of the geographic formation of Cuba, which has fringes of islands along its coasts in the 
immediate vicinity of its major island that are clearly under its sovereignty inasmuch as the space 
between them is governed by internal waters regulations, the right of the Republic of Cuba to draw 
straight base lines is irrefutable. 

Furthermore, the daily exercise of the right of innocent passage through Cuban waters, which 
Cuba allows, recognizes, and practices, and with which the United States of America is perfectly 
familiar, does not limit the right of the Cuban authorities to act in accordance with their national law 
when they deem that a violation of another nature may have occurred. For example, there have been 
innumerable cases of illegal narcotics traffic, in which boats run by U.S. citizens have been used precisely 
in these zones, and there are other, past cases of U.S. ships bringing counterrevolutionaries to infiltrate 
Cuba and commit acts of piracy against the sovereign territory of the Republic of Cuba. 

Moreover, there is no justification whatsoever for U.S. Air Force planes or U.S. Navy vessels to 
be in these zones, much less acting dangerously and in violation of the sovereign air space of the 
Republic of Cuba over its territorial sea south of Baitiquiri, Province of Guantanamo, as was the case 
between 6:30 p.m. and 7:00 p.m. on March 20, 1984, when three U.S. Air Force fighter planes, 
apparently proceeding from the Guantanamo Naval Base, synchronized their flight with the passage 
of the U.S. yachts Brigadoon III and Cashash a, an act which can only be construed as a deliberate 
provocation. 

The Ministry of Foreign Relations reiterates the vigorous protest contained in its Note No. 484 
of March 29, 1984, and once again, through the Embassy of Switzerland, U.S. Interests Section, appeals 
to the good sense of the U.S. authorities and their respect for the rules of international law and the 
sovereignty of the Cuban State, to take the necessary measures to avoid actions such as those described 
in Note No. 484 and in the present note which were committed by U.S. Air Force personnel. A 
repetition of such incidents can only lead to incalculable harm, the responsibility for which will fall 
exclusively on the authorities of the Government of the United States of America. 



Baselines 87 

Ministry of Foreign Relations, Havana, Note dated June 26, 1984, State Language Services translation no. 
113320, State Department File No. P92 0100-0942. 

47. American Embassy Lisbon note delivered in the Fall of 1986, State Department telegram 266998, 
Aug. 25, 1986. The Portuguese Ministry of Sea Decree Law No. 495/85 of Nov. 29, 1985, may be found in 
II MCRM 2-363 to 2-367, and U.N. Baselines: National Legislation 260-66. 

48. American Embassy Quito note delivered Feb. 24, 1986. State Department telegram 033256, Feb. 3, 
1986; American Embassy Quito telegram 01651, Feb. 25, 1986. The Ecuadoran Supreme Decree No. 959-A, 
may be found in Limits in the Sea No. 42 (1972), which also provides a detailed point-by-point analysis of 
the straight baseline segments, in U.N. Legislative Series B/18, at 15-16, and in U.N. Baselines: National 
Legislation 154-56. PRESCOTT, at 64 & 202, and REISMAN & WESTERMAN, at 154, similarly criticize this 
claim. 

49. American Embassy Djibouti Note dated May 22, 1989. State Department telegram 100762, Mar. 31, 
1989; American Embassy Djibouti 1481, June 1, 1989. Decree No. 85-048 of May 5, 1985, may be found in 
I MCRM 2-142 to 2-143, and U.N. Baselines: National Legislation 149. See Limits in the Seas No. 113 
(March 1992). 

50. Limits in the Seas No. 4, at 2 (1970); American Embassy Mexico City telegram 4292, Aug. 5, 1969, 
State Department File POL 33-4 MEX, XR Pol Mex-US. The Decree of Aug. 29, 1968, may also be found 
in U.N. Legislative Series B/16, at 17-19 and U.N. Baselines: National Legislation 221-22. 

51. American Embassy Lisbon note delivered in the Fall of 1986, State Department telegram 266998, 
Aug. 25, 1986, n. 47 supra. In its reply, the Government of Portugal stated: 

a reading of the geographic coordinates cited in the Annex to this Decree-Law demonstrates that the 
procedure adopted in locating the relevant baselines of the Azorean and Madeiran archipelagoes was 
not predicated on Part IV of the Convention, but rather the authority comes from its article 121 (Part 
VIII), which refers to the applicable dispositions of geographic formations in general. 

Portuguese Ministry of Foreign Affairs Note DSA 3057 33/EUA/3 of Nov. 28, 1986, to American Embassy 
Lisbon. It should be noted that article 121 provides that the territorial sea of an island is determined in 
accordance with the provisions of the LOS Convention "applicable to other land territory", and that these 
straight baselines do not meet the preliminary criteria for drawing straight baselines under article 7 of the LOS 
Convention. 

52. American Embassy Copenhagen Notes Nos. 061 and 065 of July 12 and 18, 1991. State Department 
telegram 223707, July 9, 1991; American Embassy Copenhagen telegram 02435, Oct. 24, 1991. Ordinance 
No. 599 of Dec. 21, 1976, on the delimitation of the territorial sea around the Faeroe Islands, may be found 
in U.N. Baselines: National Legislation 131-32. The same coordinates were used in Ordinance No. 598 
establishing fishing limits around the Faroes, which may be found in II MCRM 2-130 to 2-131. The Danish 
Ministry of Foreign Affairs replied in a Note Verbale dated Oct. 3, 1991, which stated in part: 

these baselines are permitted in international law in view of the compact nature of the group of islands 
involved. The islands, 18 in all, are lying so close together, that a hypothetical 3 mile limit, drawn 
around each separate island without the use of any straight baseline would create a continuous outward 
boundary around the island group as a whole. In consequence, the Danish Government has since 1927, 
without meeting with any protest, declared the sounds between the islands to be internal waters. Cf. 
Ordinance No. 4 of 21 February 1927 concerning access of foreign warships to Danish waters and 
harbours in peacetime. 

The baselines laid down in Ordinances Nos. 598 and 599 were determined in accordance with 
Article 4 of the above mentioned [1958] Geneva Convention [on the Territorial Sea and the 
Contiguous Zone]. Article 4(4) states that in determining the particular baselines account maybe taken 
of the economic interests peculiar to the region concerned, the reality and importance of which are 
clearly evidenced by a long usage. This is highly relevant to the Faroe Islands in view of their 
dependence on fisheries in the areas defined by the baselines. 

It may be recalled that a special resolution was adopted on 26 April 1958 in connection with the 
Convention of 29 April 1958 on fishing and conservation of the living resources of the high seas 
designed to safeguard the interests of countries or territories heavily dependent on fisheries in waters 
bordering their territorial seas. At the introduction of this resolution it was underlined that among 
others it referred in particular to the Faroe Islands. 

American Embassy Copenhagen telegram 07435, Oct. 24, 1991. 



88 Excessive Maritime Claims 

53. American Embassy Quito Note delivered Feb. 24, 1986. State Department telegram 033256, Feb. 3, 
1986; American Embassy Quito telegram 01651, Feb. 25, 1986. The Federal Republic of Germany also 
protested this claim in Nov. 1986. PRESCOTT, at 202-03, notes it has "never been conclusively established 
that baselines may be drawn by coastal states around offshore archipelagos" such as the Galapagos. The 
Ecuadoran Supreme Decree No. 959-A, may be found in Limits in the Sea No. 42 (1972), which also provides 
a detailed segment by segment analysis of the straight baseline system; in U.N. Legislative Series B/18, at 16; 
and in U.N. Baselines: National Legislation 154-156. The exclusion of offshore archipelagos of continental 
States from the archipelagic provisions formed one reason Ecuador refused to sign the LOS Convention. 16 
U.N. Official Records 155, para. 30; 17 id. 97, para. 200. The United States had previously protested an 
Ecuadoran decree of February 21, 1951, delimiting a territorial sea around the Galapagos Islands by a note 
dated June 7, 1951 (4 WHITEMAN, DIGEST OF INTERNATIONAL LAW 800-01 (1965) [hereinafter 
WHITEMAN]) as did the United Kingdom in its note of September 14, 1951 (4 Anglo- Norwegian Fisheries Case, 
Pleadings 587-89). 

54. Diplomatic Note from American Embassy Khartoum delivered June 6, 1989. State Department 
telegram 174664, June 2, 1989; American Embassy Khartoum telegram 06535, June 7, 1989. Sudan's 
Territorial Waters and Continental Shelf Act No. 106 of 1970 may be found in U.N. Legislative Series B/16, 
at 31. 

55. The Canadian straight baseline claims may be found in U.N. Baselines: National Legislation 69-98. 
The Canadian Arctic straight baseline claim was enacted in reaction to a USCG icebreaker transit of the 
Northwest Passage earlier in 1985. See infra Chapter XI, text accompanying nn. 77-81. The September 10, 
1985 statement in the House of Commons by Canada's Secretary of State for External Affairs concerning 
Arctic sovereignty is reproduced in 24 I.L.M. 1723-27 (1985). Previously the Canadian Hydrographic Service 
had published a chart identified as "7000 Arctic Archipelago, 1:5,000,000, Mar. 5, 1982." The Department 
of State commented on this chart in a note to the Canadian Embassy, dated May 2, 1983, in part as follows: 

. . . Although the Government of the United States of America does not normally examine or 
comment upon charts published by the Government of Canada, this chart provides a useful opportunity 
to present the positions of the United States Government on several issues. 

The Government of the United States of America understands the title of the chart, "Arctic 
Archipelago", to be using the term "archipelago" in its geographic sense, as a large body of water with 
many islands, and not in its legal sense, as used, for example, in the United Nations Convention on 
the Law of the Sea. Under the terms of that Convention, only mid-oceanic states that are wholly 
constituted by one or more archipelagoes and other islands may be considered to be "archipelagic 
states" entitled to use archipelagic baselines. There is of course no basis in international law for a claim 
of archipelagic status for any Canadian islands and their offshore waters. 

State Department File No. P83 0056-1091. Replying on June 3, 1983, to the Department's Note of May 2, 
1983, the Canadian Embassy stated in its Note No. 81, among other things, that the Government of Canada 
saw no need to comment on the understanding of the United States Government regarding the use of the 
term 'archipelago' on this chart, beyond pointing out that it reserved its right to attach any meaning to the 
term 'archipelago' that may be consistent with ordinary linguistic usage, geography or international law. State 
Department File No. P83 0076-1115. 

56. State Department File No. P86 0019-8641. 

57. British High Commission Note No. 90/86 of July 9, 1986, reported in American Embassy Paris 
telegram 33625, July 24, 1986. The Canadian Department of External Affairs responded in its Note No. 
JCD-0257 of Aug. 7, 1986, in part as follows: 

As to any precedential significance of the Canadian baselines, they can have little or none in view of 
the unique characteristics of the Canadian Arctic archipelago. 

REISMAN &r WESTERMAN, at 111, suggest some of the baseline segments "appear inappropriate" since they 
make frequent use of islets or rocks as basepoints, and a few segments depart from the general direction of the 
coast. 

58. REISMAN & WESTERMAN, at 163 n.93. The British Order in Council, Falklands Islands Statutory 
Instruments 1989 No. 1993, (Territorial Sea) Order 1989 may be found in 60 Brit. Y.B. Int'l L. 1989, at 
657-58 (1990). The United States has made known its concerns with the baselines to the United Kingdom. 

59. REISMAN & WESTERMAN, at 156-59; PRESCOTT, at 315. 

60. Limits in the Seas No. 76, at 7-8 (1977). 

61 . Department Note dated July 5, 1983, to the Cuban Interests Section of the Embassy of Czechoslovakia, 
supra n. 46. 



Baselines 89 

62. Limits in the Seas No. 4, Jan. 24, 1970, at 2. PRESCOTT, at 237 also criticizes these lines. The Decree 
of August 29, 1968 may also be found in U.N. Legislative Series B/16, at 17-19, and U.N. Baselines: National 
Legislation 221-22. 

63. American Embassy Rangoon Note delivered on Aug. 6, 1982. State Department telegram 196007, 
July 15, 1982; American Embassy Rangoon telegram 3243, Aug. 9, 1982. The Burma Territorial Sea and 
Maritime Zones Law, 1977, may be found in U.N. Legislative Series B/19, at 8-13; in SMITH, EXCLUSIVE 
ECONOMIC ZONE CLAIMS 85-89 (1986) [hereinafter SMITH, EEZ CLAIMS]; and in U.N. Baselines: 
National Legislation 64-66. Burma's 1968 legislation on the territorial sea can be found in Limits in the Seas 
No. 14 (1970). PRESCOTT, at 166, and REISMAN & WESTERMAN, at 168 & 172-73 also severely criticize 
this claim. 

64. State Department Note dated July 5, 1983, to the Cuban Interests Section of the Embassy of 
Czechoslovakia, supra n. 46. PRESCOTT, at 166 & 337, and REISMAN & WESTERMAN, at 168, 172-73 also 
severely criticize this claim. 

65. American Embassy Mexico City Note No. 1042, July 23, 1969; State Department telegram 115918, 
July 14, 1969; American Embassy Mexico City telegrams 4110, July 26, 1969, and 4292, Aug. 5, 1969. See 
Limits in the Seas No. 4, Jan. 24, 1970. PRESCOTT, at 279, comments that "it is far from clear why this 
[straight baseline] was necessary." The Decree of August 29, 1968, may also be found in U.N. Legislative 
Series B/16, at 17-19 and U.N. Baselines: National Legislation 221-22. 

66. Department Note dated Mar. 15, 1985 to the FRG Embassy in Washington, reported in State 
Department telegram 080298, Mar. 16, 1985. The FRG claim appears in the U.N. Current Developments 
No. I, at 20-32, and in U.N. Baselines: National Legislation 176-79. 

67. Supra n. 54. 

68. Limits in the Seas No. 99, at 7. See PRESCOTT, at 212, and n. 42. 

69. See supra n. 48. Limits in the Sea No. 42 states that such a segment "does not qualify as a basepoint as 
it is simply the site of the intersection of two baselines and is located in the water". 

70. 4 WHITEMAN 342-43; 57 Am. J. Int'l L. 403-04 (1963). 

71. See supra n. 48. Limits in the Seas No. 42, at 5-6, notes that "bay closing lines are applicable only to 
bays which are in a single State .... there is no evidence to support Colombia's concurrence in the use of Cabo 
Manglares as a basepoint in the Ecuadoran straight baseline system". 

72. PRESCOTT, at 64 & 313-14, and REISMAN & WESTERMAN, at 187, criticize this claim, the latter 
as violating Article 7(6) of the LOS Convention rule that a straight baseline cannot be drawn so as to cut off 
the territorial sea of another State from the high seas. 

73. American Embassy Foreign Office Note No. 113 of Oct. 22, 1956, to the Venezuelan Ministry of 
Foreign Affairs (American Embassy Caracas despatch 294, Oct. 22, 1956), State Department File No. 
731.022/10-22-56, pursuant to instructions in State Department Airgram A-69, Oct. 16, 1956, and by the 
British Embassy at Caracas Note No. 118 of Nov. 14, 1956, reported in American Embassy Caracas despatch 
365, Nov. 30, 1956, State Department File 731.022/103056. The 1956 Law may be found in U.N. Legislative 
Series B/15, at 132, and in U.N. Baselines: National Legislation 381. The 1968 Presidential Decree may be 
found in Limits in the Seas No. 21 (1970), and in U.N. Baselines: National Legislation 382. The Guyanan 
rejection of Venezuela's claim to the territory as far as the Essequibo River may be found in the Department 
of State's International Boundary Study No. 21: British Guiana (Guyana) - Venezuela Boundary, Mar. 14, 
1963. 

74. Enclosure to U.N. letter LE 113(3-3) MALDI, quoted in Limits in the Seas No. 78, at 9. 

75. Id. at 9 & 10. 

76. Id. at 8. 

77. American Embassy Colombo Note dated Aug. 2, 1982. State Department telegram 150666, June 2, 
1982; American Embassy Colombo telegram 4672, Aug. 6, 1982. REISMAN & WESTERMAN, at 160-63, 
strongly criticize these claims. PRESCOTT, at 161, suggests that the Maldives could establish straight 
archipelagic baselines. 

78. See further 1978 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 942-43 
[hereinafter DIGEST]. The Bangladeshi claim to straight baselines, set out in its Declaration LT-I/3/74 of 
Aj>ril 13, 1974, may be found in V NEW DIRECTIONS IN THE LAW OF THE SEA 290-91 (R. Churchill, 
M. Nordquist & S.H. Lay eds., 1977); SMITH, EEZ CLAIMS at 69-72; and in U.N. Baselines: National 
Legislation 62. PRESCOTT, at 64 and 168, and REISMAN & WESTERMAN, at 183-87, criticize this claim. 

On April 28, 1982, the Government of Bangladesh reasserted its proposal to reformulate the criteria for 
establishing straight baselines for those deltaic countries whose shores were marked by continuous fluvial 
erosion and sedimentation as a result of river flooding, sudden rainfall, hurricanes and other adverse weather 
factors. In a letter to the President of the Third United Nations Conference on the Law of the Sea, the 
representative of the Government of Bangladesh stated: 



90 Excessive Maritime Claims 

the unique configuration of its coastline associated with peculiar geomorphologjcal and geological 
conditions obtaining off-shore — conditions that lead to a highly fluctuating low-water mark and areas 
of shallow water so unstable and variable as not to be amenable to conventional charting. Except for 
the channels leading to the two riverine ports of Chalna and Chittagong, the off-shore area has not 
historically been navigable and that situation continues to remain so. These conditions have a manifest 
impact on the drawing of the baselines in an area where the waters immediately off-shore have a closer 
affinity to the land than to the ocean. 

In this background, Bangladesh proposed a formulation based upon depth criteria and bathymetric 
factors which in the circumstances of the case mark the limits of navigation and charting. When the 
Bangladesh proposal was originally made, it received substantial and favourable support from a large 
number of delegations and it is our estimate that such support still exists. It is in this background that 
the Bangladesh Government considers that article 7 of the draft convention (A/CONF.62/L.78) 
cannot preclude the founding of its baseline on depth criteria and bathymetric factors. 

On April 30, 1 982, the representative from India responded to the Bangladesh proposal in a letter, of which 
the following is an excerpt, to the President of the Conference: 

2. . . . The proposal concerning the drawing of baselines in the deltaic area referred to in the 
aforementioned letter by the representative of Bangladesh was made as an informal suggestion with 
respect to the contents of paragraph 2 of article 7 of the informal composite negotiating text at the 
seventh session of the Conference held at Geneva from 28 March to 19 May 1978. Their proposal 
would have allowed the establishment of straight baselines joining base points at sea rather than base 
points located along the coastline. With reference to their suggestion, and the claim that it had received 
substantial support, I, as representative of India at the Conference, had made the following statement 
at the 104th plenary meeting on 18 May 1978: 

"54. . . . the informal suggestion made by Bangladesh with respect to the content of 
paragraph 2 of article 7 (C.2/Informal meeting/6) would have the effect of establishing a new 
rule of international law, under which a coastal State would be able to establish straight baselines 
from base points at sea, and would therefore require wide acceptance by the international 
community before it could come into force. As his delegation has stated at an informal meeting 
of the Committee on 28 April, such a suggestion must be considered in the light of the distance 
from the coastline of the base points for the future baselines; the effect which the new baselines 
would have on the general direction of the coastline; the possibility that the baselines would 
be used in fixing the outer limits of the territorial sea or exclusive economic zone, or maritime 
boundaries with neighbouring coastal States; and the effects on navigation in the enclosed 
internal waters. It was therefore gratified that Bangladesh was willing to discuss its suggestion 
with the other States interested in the matter and to raise it again at the Conference's next 
session. That attitude on the part of Bangladesh showed that its suggestion could not be regarded 
as having already obtained the substantial support to which reference was made in subparagraph 
2 of paragraph 9 of document A/CONF.62/L.28 [9 Official Records 183]." [9 Official Records 
73.] 

3. The suggestion of Bangladesh was not discussed with India after the aforementioned statement, 
nor has the Bangladesh suggestion been raised at the Conference since 1978, except at the present 
session and particularly in the form of the letter dated 28 April 1982, referred to at the outset. 

4. In view of the above, it will not be correct to say that article 7 of the draft convention 
(A/CONF.62/L.78) [15 Official Records 177] cannot preclude the founding of a baseline on depth 
criteria and bathymetric factors, as stated by the representative of Bangladesh. In fact, the Conference 
has not accepted the suggestion of Bangladesh. 

5. Article 7, paragraph 2, of the draft convention reads as follows: 

"2. Where because of the presence of a delta and other natural conditions the coastline is 
highly unstable, the appropriate points may be selected along the furthest seaward extent of 
the low-water line and, notwithstanding subsequent regression of the low-water line, the 
straight baseline shall remain effective until changed by the coastal state in accordance with this 
Convention." 



Baselines 91 

U.N. Doc. A/CONF.62/L.148, 16 Official Records of the Third United Nations Conference on the Law 
of the Sea 254-55 [hereinafter Official Records]. 

On the same day, the representative from Burma also responded to the proposal from the Government of 
Bangladesh in a letter, of which the following is an excerpt, to the President of the Conference: 

In his letter dated 28 April 1982 addressed to you and circulated to all delegations in document 
A/CONF.62/L.140 of the same date, the representative of Bangladesh asserts that his delegation's 
proposal concerning the establishment of a straight baselines system on the depth criteria and 
bathymetric factors had received, and continues to enjoy "substantial and favourable support from a 
large number of delegations" and further that his Government considers that "article 7 of the draft 
convention (A/CONF.62/L.78) cannot preclude the founding of its baselines" on such a basis. 

In this connection, my delegation is of the view that the above-mentioned assertions are not 
borne out by the history of the negotiations on the proposal at the Conference, particularly in the 
broadly representative informal negotiating group on baselines established during the third session. 
Nor are they supported by the text of article 7, paragraph 2 of the draft convention embodying 
the results of the said negotiations, which specifies in precise and unambiguous terms the 
fundamental rule that straight baselines may be drawn only from land-point to land-point, and not 
from sea-point to sea-point. 

U.N. Doc. A/CONF.62/L.149, 16 Official Records 255. See also PRESCOTT, at 163, 166 (by claiming this 
baseline, Bangladesh has sought to convert 6200 square nautical miles of potential exclusive economic zone 
into territorial sea and internal waters). 

79. Diplomatic Note dated Dec. 18, 1989 from American Embassy San Jose, reprinted in Limits in the Seas 
No. 111. Costa Rica's decree No. 18581-RE, of Oct. 14, 1988, may be found in Limits in the Seas No. 111. 

80. DEP'T ST. BULL., Feb. 1987, at 69-70. See further supra Chapter III text accompanying nn. 20-23. 

81. Limits in the Seas No. 44, at 2 (1972). The United States had previously protested these straight 
baselines in an aide memoire from American Embassy Buenos Aires dated Mar. 2, 1967. State Department 
telegram 146551, Mar. 1, 1967, File POL 33-4 ARG, quoted in State Department airgram CA-393, July 17, 
1967, File POL 33-4 ARG. PRESCOTT, at 313, also criticizes this claim. 

82. Diplomatic Note from American Embassy Nouakchott delivered Jan. 25, 1990, based on instructions 
contained in State Department telegram 248628, Aug. 4, 1989; American Embassy Nouakchott telegram 
00448, Jan. 30, 1990. PRESCOTT, at 315, also criticizes this claim, noting "this line could only be considered 
to conform to the general direction of the coast if the entire coast of Mauritania was viewed in its entirety" 
and that it might have been taken to strengthen measures against poaching by foreign fishing fleets in the 
valuable fishing ground. Article l[a] of Mauritania's Aug. 31, 1988 Ordinance 88-120 may be found in U.N. 
Baselines: National Legislation 219 (English translation). Earlier legislation containing the same claim, Article 
179 (l)(b) of Law No. 78,043, Feb. 28, 1978, may be found in translation in 9 NEW DIRECTIONS IN THE 
LAW OF THE SEA 78 (Nordquist & Simmonds eds.); Law No. 67-023, Jan. 21, 1967, may be found in 
translation in Limits in the Seas No. 8, Feb. 18, 1970, where the State Department Geographer noted that the 
greatest indentation of the bay is about 34 miles from the straight baseline, and that Banc d' Arguin is everywhere 
less than 10 fathoms deep; Law No. 62-038, Jan. 20, 1962, may be found in U.N. Legislative Series B/15, at 
100, and Scovazzi ed. at 42. 

83. Diplomatic Note from American Embassy Khartoum delivered June 6, 1989, supra n. 54. 

84. American Embassy Port au Prince Note delivered Jan. 11, 1973. State Department telegram 004532, 
Jan. 9, 1973, File POL 33-8; American Embassy Port au Prince telegram 0060, Jan. 11, 1973. The decree of 
April 6, 1972 may be found in Limits in the Seas No. 51, May 25, 1973 and in U.N. Baselines: National 
Legislation 182. REISMAN & WESTERMAN, at 158 & 60, criticize the inferred straight baselines surrounding 
Haiti, including the line enclosing the overlarge bay, Golfe de la Gonave. 

85. U.N. LOS BULL., No. 15, May 1990, at 8-9. PRESCOTT, at 239-41, criticizes the assumed straight 
baseline. See also infra Chapter VI n. 13. 

86. Department of State Diplomatic Note dated October 16, 1981, repeated in State Department telegram 
335752, Dec. 19, 1981. The Maltese Territorial Waters and Contiguous Zone Act of 1971 may be found in 
U.N. Legislative Series B/16, at 16. The map was reproduced in the memorial of April 26, 1983, submitted 
by Malta to the International Court of Justice in the Continental Shelf (Libya v. Malta) Case, and may be found 
in U.N. Baselines: National Legislation 218. In the declaration accompanying its instrument of ratification of 
the LOS Convention on May 20, 1993, Malta stated "[t]he baselines as established by Maltese legislation for 
the delimitation of the territorial sea and related areas, for the archipelago of the islands of Malta and which 
incorporate the island of Filfla as one of the points from which baselines are drawn, are fully in line with the 
relevant provisions of the Convention." U.N. LOS BULL., No. 23, June 1993, at 6. 

87. Supra n. 54. 



Territorial Sea 93 



Chapter V 
Territorial Sea 



I 



nternational consensus, as reflected in Article 3 of the LOS Convention, 
provides that: 

Every State has the right to establish the breadth of its territorial sea up 
to a limit not exceeding 12 nautical miles, measured from baselines 
determined in accordance with the Convention. 

United States Policy 

In 1988, President Reagan, acting under his constitutional authority "and in 
accordance with international law," extended the territorial sea of the United 
States of America, the Commonwealth of Puerto Rico, Guam, American 
Samoa, the United States Virgin Islands, the Commonwealth of the Northern 
Mariana Islands, and any other territory or possession over which the United 
States exercises sovereignty, to 12 miles from the baselines of the United States 
determined "in accordance with international law." 

The preamble to the Proclamation explains the action taken as follows: 

International law recognizes that coastal nations may exercise sovereignty 
and jurisdiction over their territorial seas. 

The territorial sea of the United States is a maritime zone extending 
beyond the land territory and internal waters of the United States over 
which the United States exercises sovereignty and jurisdiction, a sovereignty 
and jurisdiction that extend to the airspace over the territorial sea, as well 
as to its bed and subsoil. 

Extension of the territorial sea by the United States to the limits permitted 
by international law will advance the national security and other significant 
interests of the United States. 2 

As is reflected in Table 3, the State practice of territorial sea claims has become, 
by large measure, relatively stable and in line with the customary international 
law reflected in the LOS Convention. Table 4 lists the territorial sea claims of 
States of 12 miles or less. 



94 Excessive Maritime Claims 



Table 3 
Territorial Sea Claims 



National claims 


1945 


1958 


1965 


1974 


1979 


1983 


1994 


3 miles 


46 


45 


32 


28 


23 


25 


5 


4-11 miles 


12 


19 


24 


14 


7 


5 


5 


12 miles 


2 


9 


26 


54 


76 


79 


119 


Over 12 miles 





2 


3 


20 


25 


20 


17 


Number of 
coastal or island 
States 


60 


75 


85 


116 


131 


129 


146 



Note: At time of publication, information was not available on the territorial sea claims of Bosnia-Herzegovina, 
Croatia, Georgia, and Slovenia. 

Source: U.S. Department of State, Office of Ocean Affairs. 



Three miles (5) 

The Bahamas 3 
Denmark 13 ' c ' d 



Table 4 

Territorial Sea Claims of 1 2 Miles or Less 

(as of July 1,1994) 



Germany ' e 
Jordan 



Singapore 



Four miles (2) 
Finland 3 ' b « d 



Norway 



Six miles (3) 

Dominican Republic ' 



Greece 



Turkey 



Twelve miles (119) 

Albania d 

Algeria 

Antigua and Barbuda 2 

Argentina 3 

Australia ' d 

Bahrain 3 

Bangladesh 

Barbados 3 

Belgium 

Belize 3 ' 8 

Brazil 3 

Brunei 



Bulgaria ' d 

Burma 

Cambodia 0, 

Canada 

Cape Verde 3 ' h 

Chile 

China 

Colombia 

Comoros 3 ' 

Cook Islands 

Costa Rica 3 ' d 

Cote d'lvoire 3 



Cuba 3 
Cyprus 3 ' d 
Djibouti 3 
Dominica 3 

Egypt 3 

Equatorial Guinea 

Eriterea 

Estonia 

Fiji 3 '°' d ' h 

France* 

Gabon 

Gambia, The 3 



Twelve Miles ((Cont.) 



Table 4 (Cont.) 



Territorial Sea 95 



Ghana* 

Grenada* 

Guatemala d 

Guinea* 

Guinea-Bissau* 

Guyana* 

Haiti ' d 

Honduras* 

Iceland* 

India 

Indonesia*' d ' n 

Iran 

Iraq* 

Ireland 

Israel ' d 

Italy ' d 

Jamaica*' c ' d 

Japan ' d 'J 

Kenya*' °' d 

Kiribati 

Korea, North 

Korea, South 

Kuwait* 

Latvia 

Lebanon 

Libya 

Lithuania 

Madagascar ' d 



Malaysia ' d 
Maldives 
Malta*' ° 
Marshall Islands* 
Mauritania 
Mauritius ' d 
Mexico*' °* d 

Micronesia, Fed. States of* 
Monaco 
Morocco 
Mozambique 
Namibia* 
Nauru 

Netherlands ' d 
New Zealand 
Niue 
Oman* 
Pakistan 

Papua New Guinea 
Poland d 
Portugal ' d 
Qatar 

Romania ' d 
Russia ' d 

Saint Kitts and Nevis* 
Saint Lucia* 
Saint Vincent and the 
Grenadines* 



Sao Tome & Principe*' n 

Saudi Arabia 

Senegal*' d 

Seychelles* 

Solomon Islands ' a ' n 

South Africa ' d 

Spain ' d 

Sri Lanka 

Sudan* 

Suriname 

Sweden 

Tanzania* 

Thailand ' d 

Tonga ' d 

Trinidad & Tobago*' °' d ' h 

Tunisia*' ° 

Tuvalu 

Ukraine 

United Arab Emirates 

United Kingdom ' d ' m 

United States ' d ' n 

Vanuatu 

Venezuela ' d 

Vietnam 

Western Samoa 

Yemen* 

Yugoslavia, Former*' °' d 

Zaire* 



*Ratified the 1982 Convention. 

Includes Greenland and the Faroe Islands. 
°Party to the 1958 Territorial Sea Convention. 

Party to the 1958 High Seas Convention. 
e The Federal Republic of Germany and the German Democratic Republic unified on October 3, 1990. 
Its territorial sea claim is considered to be 3 miles, except in the Helgolander Bucht where the limit extends, 
at one point, to 16 miles; and, in the Baltic, off the former GDR, the limit is 12 miles. 

In the Aegean Sea. Turkey claims a 12-mile territorial sea off its coast in the Black Sea and the Mediterranean. 
^From the mouth of the Sarstoon River to Ranguana Caye, Belize's territorial sea is 3 miles; according 
to Belize's Maritime Areas Act, 1992, the purpose of this limitation is "to provide a framework for the 
negotiation of a definitive agreement on territorial differences with the Republic of Guatemala". 

Maritime limits are measured from claimed "archipelagic baselines" which generally connect the 
outermost points of outer islands or drying reefs. 

jlncludes all French overseas departments and territories. 

^Japan's territorial sea remains 3 miles in five "international straits", i.e., Soya (LaPerouse), Tsugaru, Osumi, 
and the eastern and western channels of Tsushima. 



c South Korea's territorial sea remains 3 miles in the Korea Strait. 
Includes Tokelau. 



m Includes Bermuda, Cayman Islands, Falkland Islands, St. Helena, Ascension, Triston de Cunha, Gough 
Island, Nightengale Island, Inaccessible Island, South Georgia, South Sandwich Islands, and the Turks and 
Caicos Islands. 



96 Excessive Maritime Claims 

"includes Puerto Rico, U.S. Virgin Islands, American Samoa, Guam, Johnston Atoll, Palmyra Atoll, 
Midway Island, Wake Island, Jarvis Island, Kingman Reef, Howland Island, Baker Island. Northern Marianas. 
Palau, which is still part of the Trust Territory of the Pacific Islands, claims a 3-mile territorial sea and a 200- 
mile fishery zone. 

Source: U.S. Department of State, Office of Ocean Affairs; U.N. LOS BULL., No. 23, June 1993. 



Excessive Claims Rolled Back 

There is a definite trend for States to reduce excess territorial sea claims to 
the norm of 12 miles set forth in the LOS Convention, as reflected in Table 5. 

Table 5 
Excessive Territorial Sea Claims Rolled Back 





Excessive Claim 


Date Rolled 


State 


Year 


Breadth 


Back to 12 Miles 


Albania 


1976 


15 


nm a 


1990 


Argentina 


1967 


200 


nm b 


1991 


Brazil 


1970 


200 


nm c 


1993 


Cape Verde 


1975 


200 


nm 


1977 


Gabon 


1970 


25 


nm 






1972 


30 


nm 






1972 


100 


nm 


1984 


Ghana 


1963 


12 


nm 






1973 


30 


nm 






1977 


200 


nm 


1986 


Guinea 


1964 


130 


nm 






1965 


200 


nm 


1980 


Guinea-Bissau 


1974 


150 


nm 


1978 


Haiti 


1972 


12 


nm 






1977 


100 


nm 


1977 


Madagascar 


1963 


12 


nm 






1973 


50 


nm 


1985 


Maldives 


1964 


rectangle 


1976 


Mauritania 


1962 


6 


nm 






1967 


12 


nm 






1972 


30 


nm 






1977 


70 


nm 


1988 


Senegal 


1961 


6 


nm 






1968 


12 


nm 






1976 


200 


nm 


1985 


Tanzania 


1963 


12 


nm 






1973 


50 


nm 


1989 


Tonga 


1989 


rectangle 


1972 



a Decree No. 5,384 of February 23, 1976, FBIS-EEU, No. 41, Mar. 1, 1976, at Bl, protested by the United 
States by diplomatic note delivered July 21, 1989, on behalf of the United States by the French Embassy in 
Tirane, pursuant to instructions contained in State Department telegram to American Embassy Paris 193134, 
June 17, 1989. 

Law 17, 094-M-24, December 29, 1966, in which navigation and overflight beyond 12 miles was 
unaffected, which may be found in UN Legislative Series B.15, at 45, was protested by American Embassy 
Buenos Aires note dated March 2, 1967 (pursuant to instructions contained in State Department telegram 
146551, Mar. 1, 1967), also protested by the United Kingdom on June 23, 1967, Norway on May 22, 1967, 



Territorial Sea 97 

and Sweden and Denmark in 1967 (American Embassy Buenos Aires Airgram A-961, June 24, 1967, State 
Department File POL 33-4 ARG), rolled back to 12 miles in 1991 by Law No. 23,968. 

c Decree Law No. 1098 of March 25, 1970, asserting a 200-mile territorial sea, may be found in UN 
Legislative Series B/16, at 4, protested by State Department Diplomatic Note to the Brazilian Embassy delivered 
April 21, 1970, and reported in State Department telegram 059824, Apr. 22, 1970, File POL 33-4 BRAZ 
(Brazil ratified the LOS Convention on December 22, 1988), and rolled back to 12 miles by Law 8,617, 
January 4, 1993, the text of which may be found in U.N. LOS BULL., No. 23, June 1993, at 17. 

Source: U.S. Department of State, Office of Ocean Affairs. 

Territorial Sea Claims Greater Than 12 Miles 

The United States has either protested or asserted its navigation rights against 
all territorial sea claims that exceed the 12-mile limit {see Table 6). Some claims 
have been protested more than once. Navigation assertions of right, either 
surface transits or overflights, are conducted in the course of normal operations. 

Table 6 
Territorial Sea Claims 
Greater Than 1 2 Miles 



State Breadth; Law, Date of Claim 

Angola 20; Decree No. 159/75, November 6, 1975 

Benin 200; Decree No. 76-92, April 2, 1976 

Cameroon 50; Law No. 74/16, December 5, 1974 

Congo 200; Ordinance No. 049/77, December 20, 1977 

Ecuador 200; Decree Law No. 1542, November 11, 1966 

El Salvador 200; Constitution, September 7, 1950 

Germany 16; Federal Gazette, March 16, 1985 

Liberia 200; Act, May 5, 1977 

Nicaragua 200; Act No. 205, December 19, 1979 

Nigeria 30; Decree No. 38, August 26, 1971 

Panama 200; Law No. 31, February 2, 1967 

Peru 200; Supreme Decree, August 1, 1947 

Philippines Rectangle; Act. No. 3046, June 17, 1961 

Sierra Leone 200; Interpretation Act, April 19, 1971 

Somalia 200; Law No. 37, September 10, 1972 

Syria 35; Law No. 37, August 16, 1981 

Togo 30; Ordinance No. 24, August 16, 1977 

Uruguay 200; Decree 604/969, December 3, 1969 



U.S. 


U.S. Asser- 


Protest 


tion of Right 




1985 a 


1989 


1981 a 


1968 


1988 a 


1987 


1981 a 


1967 a 


1979 a 


1950 


1979 a 


1985 




1977 


1981 a 



1982 

1984 a 

1967 a 

1948 a 

1986 

1973 

1982 

1981 a 

1984 

1970 



1982 

1992 a 

1979 a 

1980 a 

1994 a 

1981 a 

1979 a 

1981 a 



.Claim protested or assertion operations conducted more than once. 
Included in Table 3 as claiming 12 miles. 

Source: U.S. Department of State, Office of Ocean Affairs. 



Notes 



1. Proclamation No. 5928, 54 Fed. Reg. ill (1989); 24 Weekly Comp. Pres. Doc. 1661 (Jan. 2, 1989); 
DEP'T STATE BULL., Mar. 1989, at 72; U.N. Office for Ocean Affairs and the Law of the Sea, The Law 



98 Excessive Maritime Claims 

of the Sea: Current Developments in State Practice No. II, at 83 (U.N. Sales No. E.89.V.7, 1989) [hereinafter 
U.N. Current Developments No. II]; 83 Am. J. Int'l L. 349-51 (1989). The full text of the Proclamation is 
set out in Appendix 3. 

2. See Schachte, The History of the Territorial Sea From a National Security Perspective, 1 Terr. Sea J. 143 
(1990). The Proclamation also provided that nothing therein "( a ) extends or otherwise alters existing Federal 
or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom; or (b) impairs the 
determination, in accordance with international law, of any maritime boundary of the United States with a 
foreign jurisdiction." 

3. Belgium, on signing the LOS Convention, declared: 

The limitation of the breadth of the territorial sea, as established by Article 3 of the Convention, 
confirms and codifies a widely observed customary practice which it is incumbent on every State to 
respect, as it is the only one admitted by international law; the Government of the Kingdom of Belgium 
will not therefore recognize, as territorial sea, waters which are, or may be, claimed to be such beyond 
12 nautical miles measured from baselines determined by the riparian State in accordance with the 
Convention. 

UN, Multilateral Treaties Deposited with the Secretary-General, Status as at 31 December 1992, UN Doc. 
ST/LEG/SER.E/11, at 764 (1993). 

4. Benin: Decree No. 76-92 of April 2, 1976, asserting a 200-mile territorial sea, may be found in U.N. 
Legislative Series: National Legislation and Treaties Relating to the Law of the Sea, U.N. Doc. ST/LEG/SER. 
B/19 at 7 [hereinafter U.N. Legislative Series], protested by the U.S. on December 7, 1989, State Department 
telegram 275853, Aug. 28, 1989, American Embassy Cotonou telegram 03297, Dec. 8, 1989 (the United 
Kingdom had previously protested this claim on October 11, 1976). 

Cameroon: Law No. 67/LF/25 of November 3, 1967, amending the Cameroon Merchant Marine Code, 
asserting an 18-mile territorial sea, may be found in U.N. Legislative Series B/15, at 51, protested by the U.S. 
in January 1968, pursuant to instructions contained in State Department telegram 091170, Dec. 29, 1967, File 
POL 22-4 CAM; subsequently extended to 50-miles by Law No. 74/16, of December 5, 1974 (which may 
be found in U.N. Legislative Series B/19, at 130). 

Congo: Ordinance No. 49/77 of December 20, 1977, asserting a 200-mile territorial sea, may be found 
in U.N. LOS BULL., No. 2, Mar. 1985, at 15, protested by American Embassy Brazzaville Note No. 191/87 
of December 15, 1987 (State Department telegram 382072, Dec. 10, 1987; American Embassy Brazzaville 
telegram 0520, Feb. 26, 1988). 

Ecuador: Decree Law No. 1542 of November 10, 1966, asserting a 200-mile territorial sea, may be found 
in U.N. Legislative Series B/15, at 78, originally protested by American Embassy Quito Note 63 ofjanuary 
23, 1967 (State Department telegram 122548, Jan. 20, 1967; American Embassy Quito telegrams 03129, 
January 23, 1967 and 03264, Jan. 30, 1967), subsequently protested by American Embassy Quito note of 
February 24, 1986 (American Embassy Quito telegram 01651, Feb. 25, 1986, pursuant to instructions 
contained in State Department telegram 033256, Feb. 3, 1986) (also protested by the Federal Republic of 
Germany in November 1986), and in its Note 025/92, dated May 29, 1992, to the United States as depositary 
of the Whaling Convention, State Department File No. P92 0070-1325; by State Department Circular Note 
dated May 1, 1992 to the parties to the 1946 International Convention for the Regulation of Whaling, State 
Department File No. P92 0060-1226; and by Russia in its Note No. 1 1 dated Feb. 10, 1992 to the Department 
of State as depositary, State Department File No. P92 0106-0536. Ecuador refused to sign the LOS Convention 
in part in defense of its 200-mile territorial sea claim; 16 Official Records of the Third United Nations 
Conference on the Law of the Sea 155, para 2a [hereinafter Official Records], 17 Official Records 97, para. 
202. The Government of Ecuador replied to the 1967 protests by the United States, United Kingdom, Sweden, 
The Netherlands, Denmark and West Germany, of the 1966 Ecuadoran claim, in identical notes the substance 
of which was published in a news report in the Guayaquil daily newspaper El Universo on November 21, 1967. 
The American Embassy's unofficial English translation reads in part as follows: 

. . . referring to Decree Number 1542 (Official Register Number 158 of November 11, 1966) by 
which the Government of Ecuador has revised Article 633 of the Civil Code, fixing the territorial sea 
at two-hundred nautical miles, measured from the most salient points of the Ecuadoran coast and from 
the outermost extremes of the outermost islands of the Colon Archipelago. 

The Government of Ecuador considers that the issuance of the aforesaid Decree, which is now 
the law of the Republic, constitutes the exercise of its clear rights as a free and sovereign country. 



Territorial Sea 99 

The antiquated rule of three miles as territorial sea, respected when the range of a cannon shot was 
no longer than that distance, is now to be found to be completely abandoned, as is recognized by the 
most distinguished authors of treatises on international law and by the practice of states. 

New factors have been accepted as determinants of the breadth of the territorial sea. These have 
been indicated in Paragraph II [sic Paragraph I] of the Declaration of Santiago, signed on August 18, 
1952 by Ecuador, Peru and Chile (ratified by Ecuador in Official Register Number 1029 of January 
24, 1956), which states: 

Owing to the geological and biological factors affecting the existence, conservation and 
development of the marine fauna and flora of these waters adjacent to the coasts of the declarant 
countries, the former extent of the territorial sea and contiguous zone is insufficient to permit 
the conservation, development and use of those resources, to which the coastal countries are 
entitled. 

These factors led the Governments of the three countries to set forth in the Delaration of Santiago: 

The Governments of Chile, Ecuador and Peru therefore proclaim as a principle of their 
international maritime policy that each of them possess sole sovereignty and jurisdiction over 
the area of the sea adjacent to the coast of its own country and extending not less than 200 
nautical miles from the said coast. Their sole jurisdiction and sovereignty over the zone thus 
described includes sole sovereignty and jurisdiction over the sea floor and subsoil thereof. 

The position of these three countries - that for this reason was not a unilateral act of Ecuador - 
found its support in the resolution adopted in February of 1956 by the Inter- American Juridical Council 
entitled "Principles of Mexico on the Juridical System of the Sea," a position that in October of 1957 
was reaffirmed by the Third Hispano-Luso American Congress on International Law, according to 
which today "each State has the right to fix its territorial sea out to reasonable limits, taking into 
consideration geographic, geologic and biologic factors as well as economic necessities of its population 
and its security and defense." 

The United Nations Conferences on the Law of the Sea, held at Geneva in 1958 and 1960, did 
not arrive at any agreement with respect to the breadth of the territorial sea. The Conventions that 
were approved at that time did not contain any rules establishing this breadth and, even in the 
hypothetical case that they had, Ecuador is not a party to any of these instruments nor is it a signatory. 
The proposals that were presented in the Conferences, including that which advocated a territorial sea 
of six miles plus an exclusive fishing zone of six miles [in 1960], were not approved whatever the 
number of votes that they obtained. The results of these Conferences proved, therefore, that it was 
impossible to arrive at an international agreement establishing the breadth of the territorial sea. 
Therefore, in the absence of such an agreement, it has been recognized that this expanse can be 
determined by the sovereign acts of the riparian state. Given such right, the states have extended their 
territorial sea: (1) because of defense requirements; (2) in consideration of the expanse of the sea which 
bathes their coasts; and (3) for reasons of economic defense. 

Based on these antecedents, the Complimentary Convention to the Declaration of Santiago on 
the Maritime Zone of 200 Miles, also ratified by Ecuador and by that reason the Law of the Republic 
(Official Register Number 376 of November 18, 1964) states: 

Chile, Ecuador and Peru will proceed by common accord in the juridical defense of the 
principle of sovereignty over the maritime zone out to a minimum distance of 200 marine 
miles, including the respective soil and subsoil . . . 

As a consequence, the Government of Ecuador considers that, in issuing Decree Number 1542, it was 
complying with international commitments contracted and was following the modern practice 
recognized by States. 

Ministry of Foreign Relations Note No. 15 AT dated Feb. 14, 1967, enclosed with American Embassy Quito 
Airgram A-306, Feb. 18, 1967, and Ministry of Foreign Relations Notes dated Nov. 9, 1967, American 
Embassy Quito Airgram A-202, Nov. 28, 1967, Department of State File No. POL 33-4 Ecuador. The 
Santiago Declaration may be found in MacChesney, Situation, Documents and Commentary on Recent Develop- 
ments in the International Law of the Sea, 51 Naval War College, International Law Situation and Documents 



100 Excessive Maritime Claims 

1956, at 265-67 (1957). It does not appear that Chile ever claimed a 200-mile territorial sea; rather by Supreme 
Resolution No. 179 of April 1953, Chile claimed a 3-mile territorial sea, and by Law No. 18.565 of October 
1986, a 12-mile territorial sea. See I MCRM 2-97. 

El Salvador: Article 7 of the Political Constitution of September 7, 1950, asserting a claim to a 200-mile 
territorial sea with navigation and overflight permitted, may be found in U.N. Legislative Series B/6, at 14 
and 4 WHITEMAN 801-02, protested by American Embassy San Salvador Diplomatic Note No. 160 delivered 
December 12, 1950, 4 WHITEMAN 802 (and by the United Kingdom on the same date). 

Federal Republic of Germany: November 12, 1984 Notice 85-574, effective March 16, 1985, 
establishing certain straight baselines in the North Sea which had the effect of establishing a 16-mile territorial 
sea in certain areas of the Helgolander Bucht (see Map 15), may be found in U.N. Current Developments 
No. I, at 20-22, protested by State Department Diplomatic Note to the Embassy of the Federal Republic of 
Germany, March 15, 1985, reported in State Department telegram 080298, Mar. 16, 1985. 

Liberia: Act of February 16, 1977, to a 200-mile territorial sea, may be found in U.N. LOS BULL., 
No. 2, Mar. 1985, at 53, protested by American Embassy Monrovia Diplomatic Note dated Mar. 14, 1977, 
American Embassy Monrovia telegram 1886, Mar. 18, 1977. 

Nicaragua: Decree No. 205 dated Dec. 19, 1979, asserting a 200-mile territorial sea, may be found in 
U.N. LOS BULL., No. 2, Mar. 1985, at 62, protested by American Embassy Managua Notes of April 23, 
1982 (State Department telegram 107747, Apr. 24, 1982, American Embassy Managua telegram 02939, June 

28, 1982), and June 17, 1985 (State Department telegram 180536, June 13, 1985, American Embassy Managua 
telegram 03686, June 17, 1985), and State Department Note dated Sep. 30, 1993, State Department File No. 
P92 0113-1248. 

Nigeria: A party to the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. 
Territorial Waters (Amendment) Decree No. 38 of August 26, 1971 assertion to a 30-mile territorial sea may 
be found in U.N. LOS BULL., No. 2, Mar. 1985, at 63, protested by demarches in Lagos on November 29, 
1984 (American Embassy Lagos telegram 14309, Dec. 4, 1984), and September 2, 1986 (State Department 
telegram 113743, Apr. 11, 1986, American Embassy Lagos telegram 09631, Sept. 2, 1986) (also protested by 
the Federal Republic of Germany). 

Panama: Law 31 of February 2, 1967, asserting a 200-mile territorial sea, may be found in U.N. Legislative 
Series B/15, at 105, originally protested by American Embassy Panama City Note No. 471 of March 28, 1967 
(American Embassy Panama City Airgram A-643, July 24, 1968), subsequendy by demarche on February 3 & 
4, 1988 (American Embassy Panama City telegram 01438, Feb. 5, 1988) (also protested by the Federal Republic 
of Germany in June 1987). 

Peru: Presidential Decree No. 781, Aug. 1, 1947, to a 200-mile territorial sea in which free navigation 
was preserved, may be found in U.N. Legislative Series B/l, at 16-17, and 4 WHITEMAN 797-98, originally 
protested by American Embassy Lima Note of July 2, 1948 (4 WHITEMAN 798-99 (1965)). Also protested 
by the United Kingdom on Mar. 1, 1984, 55 Brit. YB Int'l L. 556 (1985), and by Germany by its Note dated 
May 27, 1983, State Department File No. P83 0091-1552. This claim was incorporated in Articles 98 and 99 
of Peru's Political Constitution of July 1979, the text of which may be found in 14 CONSTITUTIONS OF 
THE COUNTRIES OF THE WORLD, Peru 56-57 (Blaustein & Flanz eds. 1989), and protested by American 
Embassy Lima Note delivered August 15, 1986 (State Department telegram 255297, Aug. 14, 1986, American 
Embassy Lima telegram 9602, Aug. 19, 1986), and by American Embassy Lima Note delivered July 3, 1992 
(American Embassy Lima telegram 09328, June 4, 1992), pursuant to instructions contained in State 
Department telegram 204139, June 26, 1992, and by American Embassy Lima Note No. 541, dated July 14, 
1993, and by the EC Note 348/B dated July 6, 1993. The Peruvian claim was slighdy modified in its 1993 
Constitution. 

Philippines: Republic Act No. 3046, June 1961, asserting a territorial sea of up to 285 miles, may be 
found in U.N. Legislative Series B/15, at 105, protested by American Embassy Manila note delivered Jan. 29, 
1986 (State Department telegram 115912, April 17, 1985, American Embassy Manila telegram 03261, Jan. 

29, 1986). 

Sierra Leone: A party to the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone. 
Territorial Sea Act of April 19, 1971, asserting a 200-mile territorial sea, may be found in U.N. LOS BULL., 
No. 2, Mar. 1985, at 76, protested by American Embassy Freetown Diplomatic Note delivered January 30, 
1973 (State Department telegram 015074, Jan. 26, 1973; American Embassy Freetown telegram 0153, Jan. 

30, 1973). 

Somalia: Law No. 37 of September 10, 1972, asserting a 200-mile territorial sea, may be found in U.N. 
LOS BULL., No. 2, Mar. 1985, at 76, protested by American Embassy Mogadishu note dated Aug. 28, 1982 
(State Department telegram 231502, Aug. 18, 1982; American Embassy Mogadishu telegram 6215, Aug. 29, 
1982). 

Syria: Law No. 37 of August 11, 1981, asserting a 35-mile territorial sea, may be found in U.N. LOS 
BULL., No. 1, Sept. 1983, at 61, protested by State Department note to the Syrian Embassy in Washington, 
of October 10, 1981, reported in State Department telegram 288959, Oct. 29, 1981, and reaffirmed by 



Territorial Sea 1 01 

American Embassy Damascus Diplomatic Note dated Nov. 21, 1989 (State Department telegram 337081, 
Oct. 20, 1989; American Embassy Damascus telegram 03212, May 23, 1990) (also protested in 1981 by Turkey, 
by Israel on March 12, 1982, the text of which may be found in the U.N. LOS BULL., No. 1, at 62, and by 
New Zealand on June 3, 1982, the text of which may be found id., at 63). (In 1982, the Syrian Foreign 
Ministry stated Syria was committed to recognize the 12-mile limit when the LOS Convention was adopted). 

Togo: Ordinance No. 24, Aug. 16, 1977, to a 30-mile territorial sea, may be found in U.N. Legislative 
Series B/19, at 130, protested by American Embassy Lome demarche on November 8, 1984 (State Department 
telegram 325607, Nov. 1, 1984; American Embassy Lome telegram 06567, Nov. 9, 1984). (Togo ratified the 
LOS Convention on April 16, 1985.) 

Uruguay: Executive Decree D.604/1969, Dec. 3, 1969, to a 200-mile territorial sea while preserving 
freedoms of navigation and overflight beyond 12 miles, and innocent passage within 12 miles, may be found 
in U.N. Legislative Series B/19, at 90, protested by American Embassy Montevideo Diplomatic Note delivered 
March 3, 1970 (State Department telegram 030281, Mar. 2, 1970; American Embassy Montevideo Airgram 
A- 194, Oct. 7, 1970, State Department File POL 33-4 UR). On signing the Convention, and repeated on 
ratification, Uruguay declared: 

the provisions of the Convention concerning the territorial sea and the exclusive economic zone are 
compatible with the main purposes and principles underlying Uruguayan legislation in respect of 
Uruguay's sovereignty and jurisdiction over the sea area adjacent to its coast and over its bed and subsoil 
up to a limit of 200 miles. 

UN, Multilateral Treaties Deposited with the Secretary-General: Status as of 31 December 1992, UN Doc. 
ST/LEG/SER.E/11, at 774 (1993). 



Contiguous Zone 1 03 



Chapter VI 
Contiguous Zone 



Juridical Regime 

The contiguous zone is an area seaward of the territorial sea in which the 
coastal State may exercise the control necessary to prevent or punish infringe- 
ment of its customs, fiscal, immigration, and sanitary laws and regulations that 
occur within its territory or territorial sea (but not for so-called security 
purposes ). The contiguous zone is comprised of international waters through 
which ships and aircraft, including warships and military aircraft, of all nations 
enjoy the high seas freedoms of navigation and overflight. 

The maximum permissible breadth of the contiguous zone under international 
law is 24 miles measured from the baseline from which the territorial sea is 
measured. Contiguous zones may be proclaimed around both islands and rocks 
following appropriate baseline principles. Low-tide elevations which are not part 
of the baseline (i.e., those situated beyond the territorial sea as measured from the 
mainland or an island) and artificial islands, installations and structures, cannot have 
contiguous zones in their own right. Such man-made objects include oil drilling 
rigs, light towers, and off-shore docking and oil pumping facilities. 

The United States claims a contiguous zone extending 12 miles from the 
baselines used to measure its territorial sea, but respects contiguous zones 
extending up to 24 miles in breadth that are consistent with the LOS Convention. 
Table 7 lists the 53 states claiming a contiguous zone beyond their territorial sea. 

Table 7 
States Claiming a Contiguous Zone Beyond the Territorial Sea 







Territorial Sea 


Contiguous Zone 






tun 


run 


Antigua and Barbuda 


12 


24 


Argentina 




12 


24 


Bahrain 




12 


24 


Bangladesh 




12 


18 


Brazil 




12 


24 


Bulgaria 




12 


24 


Burma 




12 


24 


Cambodia 




12 


24 


Chile 




12 


24 


China 




12 


24 


Denmark 




3 


4 


Djibouti 




12 


24 


Dominica 




12 


24 


Dominican 


Republic 


6 


24 


Egypt. 




12 


24 


Finland 




4 


6 



104 Excessive Maritime Claims 



Table 7 (Cont.) 





Territorial Sea 


Contiguous Zone 




nm 


nm 


France 


12 


24 


Gabon 


12 


24 


Gambia, The 


12 


18 


Ghana 


12 


24 


Haiti 


12 


24 


Honduras 


12 


24 


India 


12 


24 


Iran 


12 


24 


Madagascar 


12 


24 


Malta 


12 


24 


Marshall Islands 


12 


24 


Mauritania 


12 


24 


Mexico 


12 


24 


Morocco 


12 


24 


Namibia 


12 


24 


Norway 


4 


10 


Oman 


12 


24 


Pakistan 


12 


24 


Qatar 


12 


24 


Romania 


12 


24 


St. Kitts and Nevis 


12 


24 


Saint Lucia 


12 


24 


St. Vincent & The Grenadines 


12 


24 


Saudi Arabia 


12 


18 


Senegal 


12 


24 


Spain 


12 


24 


Sri Lanka 


12 


24 


Sudan 


12 


18 h 
41 b 


Syria 


35 


Trinidad and Tobago 


12 


24 


Tunisia 


12 


24 


Tuvalu 


12 


24 


United Arab Emirates 


12 


24 


Vanuatu 


12 


24 


Venezuela 


12 


15 


Vietnam 


12 


24 


Yemen 


12 


24 



Total of States: 53 



Breadth is measured from territorial sea baseline. 



Claim protested by the United States. 
Sources: Department of State, Office of Ocean Affairs; U.N. LOS BULL., No. 23, June 1993, at 67-68. 



Excessive Claims 

There are few instances of claims to a contiguous zone that exceed the rights 
permitted coastal States under international law. Most involve attempts by coastal 
States to expand the competence of the contiguous zone to include protection 



Contiguous Zone 1 05 

of national security interests. The United States has protested these excessive 
claims. (See Table 8.) For example, in 1989, the United States protested article 
4 of Haiti Decree No. 38 of July 12, 1977, as follows: 

The Government of the United States wishes to recall to the Government of Haiti 
that customary international law, as reflected in the 1958 Geneva Convention on 
the Territorial Sea and the Contiguous Zone, to which Haiti and the United States 
are party, and in the 1982 United Nations Convention on the Law of the Sea, 
does not recognize the right of coastal States to assert powers or rights for security 
purposes in peacetime that would restrict the exercise of the high seas freedoms 
of navigation and overflight beyond the territorial sea. 

In a decree of March 17, 1980, the Government of the Socialist Republic of 
Vietnam claimed that military vessels must have its permission and must also give 
notice before entering Vietnam's contiguous zone. In a Diplomatic Note, the 
United States protested these claimed restrictions on high seas freedoms, as follows: 

The Government of the United States of America also wishes to refer to specific 
provisions of the Decree of March 17, 1980 which assert jurisdiction in a manner 
which is contrary to international law with respect to the activities of foreign 
vessels operating in the territorial sea or the contiguous zone of the Socialist 
Republic of Vietnam, including, inter alia: a claim that submarines in the 
contiguous zone must navigate on the surface and show their flag; a claim that 
aircraft may not be launched from or taken aboard ships operating in the 
contiguous zone; and, a claim that, before entering the contiguous zone or the 
territorial sea, ships equipped with weapons must take prescribed steps to render 
such weapons less readily available for use. The Government of the United States 
of America wishes to remind the Government of the Socialist Republic of 
Vietnam that international law limits the jurisdiction which a coastal State may 
exercise in maritime areas. It is the view of the Government of the United States 
of America that the aforementioned claims made in the decree of March 17, 1980 
exceed such limits. 

The United States has also protested attempts to establish contiguous and 
security zones in areas of the high seas more than 24 miles from the baselines 
from which the territorial sea is measured. For example, the Syrian claim to a 
6-mile contiguous zone adjacent to its 35-mile territorial sea asserted in Article 
13 of its Legislative Decree no. 304, of December 28, 1963, concerning the 
territorial sea of the Syrian Arab Republic, was protested by the United States 
in a Diplomatic Note from American Embassy Damascus to the Ministry of 
Foreign Affairs dated November 21, 1989. 10 

In a Diplomatic Note to the Ministry of Foreign Affairs, the United States 
expressed its concern over Namibia's claim to establish control within the full 
extent of its 200-mile exclusive economic zone to prevent infringement of its 
fiscal, customs, immigration, and health laws. The note read in part: 



106 Excessive Maritime Claims 

As recognized in customary international law and as reflected in articles 33 and 
56 of the 1982 United Nations Convention on the Law of the Sea, the right of a 
coastal State to prevent infringement of its fiscal, customs, immigration, and health 
laws within its territory or territorial sea does not extend beyond 24 nautical miles 
from the baselines from which the breadth of the territorial sea is measured. 

.... The Government of Namibia may wish to consider establishing a contiguous 
zone, consistent with international law, in which those powers may lawfully be 
exercised. 11 

On December 12, 1991, Namibia amended its law to conform with Article 33 

12 

of the LOS Convention. 

The United States also protested the 50-mile military maritime boundary 
proclaimed in a North Korean Army Command announcement on August 1, 
1977. 13 

Table 8 
States Claiming Security as a Contiguous Zone Interest 

U.S. Assertion 
of Navigation Rights 

1985 b 
1992 





Breadth* 


U.S. Protest 


Bangladesh 


18 


1982 


Burma 


24 


1982 


Cambodia 


24 




China (PRC) 


24 


1992 


Egypt 


24 




Haiti 


24 


1989 


Iran 


24 


1994 


Nicaragua 


25 




Pakistan 


24 




Saudi Arabia 


18 




Sri Lanka 


24 


1986 


Sudan 


18 


1989 


Syria 


41 


1989 


United Arab Emirates 


20 




Venezuela 


15 


1989 


Vietnam 


24 


1982 
1982 


Yemen 


24 



1993 
1986 b 



1979 b 
1981 



1982 b 



Breadth in nautical miles as measured from the territorial sea baseline. 
Claim protested or assertion conducted more than once. 



Notes 

1. Territorial Sea Convention, article 24; LOS Convention, article 33; RESTATEMENT (THIRD) 
FOREIGN RELATIONS LAW OF THE UNITED STATES §513 Cmt. f, §51 1 Cmt. k. The term "sanitary," a 
literal translation from the French "sanitaire," refers to "health and quarantine" matters. See Lowe, The 



Contiguous Zone 1 07 

Development of the Concept of the Contiguous Zone, 52 Brit. Y.B. Int'l L. 109 (1982), and Oda, The Concept of 
the Contiguous Zone, 11 Int'l & Comp. L.Q. 31 (1962). 

2. See infra n. 8 and accompanying text. 

3. U.S. Department of the Navy, Annotated Supplement to The Commander's Handbook on the Law of Naval 
Operations, NWP 9 (Rev. A)/FMFM 1-10), paras. 1.5.1 & 2.4.1 (1989) [hereinafter NWP 9 (Rev. A) ANN. 
SUPP.]. 

4. LOS Convention, article 33(2). 

5. LOS Convention, article 121(2). 

6. LOS Convention, articles 13 & 60(8). 

7. State Department Public Notice 358, 37 Fed. Reg. 1 1,906, June 15, 1972. Legislation was considered 
during the 102d Congress to establish a 24 mile contiguous zone, H.R. 3842, 102d Cong., 1st Sess. (1991). 
Although hearings were held on this bill by the House Merchant Marine and Fisheries Committee on February 
4, 1992 (Ser. 102-62), the bill failed to pass the House. The 12-mile limit is now also the outer limit of the 
U.S. territorial sea for international purposes; for U.S. domestic law purposes, the U.S. territorial sea remains 
at 3 nautical miles. H.R. 3842 would have extended the U.S. territorial sea to 12 miles for the purpose of 
enumerated Federal statutes. 

8. Diplomatic Note of August 1, 1989, from American Embassy Port au Prince; State Department 
telegram 229980, July 20, 1989; American Embassy Port au Prince telegram 05277, Aug. 7, 1989. Haitian 
Decree No. 38 of July 12, 1977 (which may be found in SMITH, EXCLUSIVE ECONOMIC ZONE CLAIMS 
202). The United States protested similar claims of other States, including Bangladesh, regarding section 
l(2)(a) of its Territorial Waters and Maritime Zones Act of 1974 (which may be found in U.N. Legislative 
Series: National Legislation and Treaties Relating to the Law of the Sea, U.N. Doc. ST/LEG/SER.B/19, at 

5 [hereinafter U.N. Legislative Series] by Diplomatic Note of September 7, 1982 from American Embassy 
Dacca, State Department telegram 208007, July 22, 1982, American Embassy Dacca telegram 5873, Sept. 10, 
1982 (also protested by the Federal Republic of Germany in April 1986); Burma, regarding article 11(a) of 
its Territorial Sea and Maritime Zones Law, 1977 (which may be found in U.N. Legislative Series B/19, at 
9), by Diplomatic Note of August 6, 1982 from American Embassy Rangoon, State Department telegram 
196007, July 15, 1982, American Embassy Rangoon telegram 3243, August 9, 1982 (also protested by the 
United Kingdom in 1993); Sri Lanka, regarding section 4(2) of the Maritime Zones Law No. 22 of 1976 
(which may be found in U.N. Legislative Series B/19, at 121), by Diplomatic Note on September 12, 1986, 
from American Embassy Colombo, State Department telegram 246211, Aug. 6, 1986, American Embassy 
Colombo telegram 06963, Sept. 13, 1986; Sudan, regarding paragraph 9(a) of its Territorial Waters and 
Continental Shelf Act No. 106 of 1970 (which may be found in U.N. Legislative Series B/16, at 33), by 
Diplomatic Note on June 6, 1989, from American Embassy Khartoum, State Department telegram 174664, 
June 2, 1989, American Embassy Khartoum telegram 06535, July 7, 1989; Syria, regarding article 13 of its 
Legislative Decree No. 304 of December 28, 1963, concerning the territorial sea of the Syrian Arab Republic 
(which may be found in Limits in the Seas No. 53, at 6), in a Diplomatic Note from American Embassy 
Damascus to the Ministry of Foreign Affairs dated Nov. 21, 1989, State Department telegram 337081, Oct. 
20, 1989, American Embassy Damascus telegram 03212, May 23, 1990; Venezuela, regarding article 3 of its 
Territorial Waters, Continental Shelf, Conservation of Fisheries and Airspace Law of July 2, 1956 (the 1941 
version which may be found in U.N. Legislative Series B/15, at 132), in a demarche by American Embassy 
Caracas on June 22, 1989, State Department telegram 193416, June 18, 1989, American Embassy Caracas 
05889, June 23, 1989; Vietnam, regarding its statement of May 12, 1977 (which may be found in FBIS Asia 

6 Pacific, May 24, 1977, at K-5, and 8 NEW DIRECTIONS IN THE LAW OF THE SEA 36 (Nordquist et al. 
eds., 1980), to exercise such control in its 24-mile contiguous zone as it considers necessary for security and 
other purposes, by aide memoire from the U.S. Mission to the United Nations in New York to the SRV mission 
dated Aug. 24, 1982. State Department telegram 232901, Aug. 19, 1982, U.S. Mission to the United Nations, 
New York, telegram 03590, Nov. 23, 1982; Yemen Arab Republic, regarding Republican Decrees No. 
15 and 16 of 1967 establishing a 18-mile security zone (which does not appear to have been published in 
English), by Diplomatic Note No. 449, dated Oct. 6, 1986, State Department telegram 312052, Oct. 3, 1986, 
American Embassy Sanaa telegram 06770, Oct. 6, 1986; and the Peoples Democratic Republic of Yemen, 
regarding article 12 of its Act No. 45 of 1977 (which may be found in U.N. Legislative Series B.19, at 24), 
by Diplomatic Note from the U.S. Mission to the United Nations in New York dated Aug. 2, 1982, State 
Department telegram 208006, July 27, 1982. On May 22, 1990, these two countries merged to form the 
Republic of Yemen. U.N. Doc. ST/CS/SER.A/31, reprinted in U.N. LOS BULL., No. 16, Dec. 1990, at 
67, and 30 I.L.M. 820-23 (1991). 

9. Aide memoire from the U.S. Mission to the United Nations in New York to the Socialist Republic of 
Vietnam (SRV) mission dated Aug. 24, 1982. State Department telegram 232901, Aug. 19, 1982, U.S. Mission 
to the United Nations, New York, telegram 03590, Nov. 23, 1982. The Mar. 17, 1980 decree may be found 
in FBIS Asia and Pacific, Mar. 19, 1980, at K2-K8. The aide memoire also protested the claim in SRV's statement, 



108 Excessive Maritime Claims 

on May 12, 1977, to exercise such control in its 24 mile contiguous zone as it considers necessary for security 
and other purposes. 

10. See supra n. 8. 

1 1 . Diplomatic Note No. 1 96 dated Dec. 24, 1 990, from American Embassy Windhoek. State Department 
telegram 420846, Dec. 13, 1990, American Embassy Windhoek telegram 00121, Jan. 22, 1991. Germany also 
protested this claim in Oct. 1990. Section 4(3) (b) of the Territorial Sea and Exclusive Economic Zone of 
Namibia Act, 1990, appears in the Government Gazette of the Republic of Namibia, No. 28, June 11, 1990, 
at 3, and is reprinted in U.N. LOS BULL., No. 21, Aug. 1992, at 59. 

12. Territorial Sea and Exclusive Economic Zone of Namibia Amendment Act, 1991, Government 
Gazette No. 332, Dec. 30, 1991, at 2, reprinted in U.N. LOS BULL., No. 21, Aug. 1992, at 64. 

13. The protest is contained in the United States Diplomatic Note to the U.N. Secretary General from 
the U.S. Mission to the United Nations in New York, Jan. 4, 1990, and was printed in U.N. LOS BULL., 
No. 15, May 1990, at 8-9. The Government of Japan also rejected this North Korean claim; See 28 Japanese 
Ann. Int' L. 122-23 (1985). The U.S.S.R. protested this claim on January 5, 1978. The North Korean claim 
may be found in The U.S. Department of Defense publication, Maritime Claims Reference Manual, Vol. I, 
DOD 2005. 1-M (1990) at 2-258 to 259; PARK, EAST ASIA AND THE LAW OF THE SEA 172 (1983); 72 
Am. J. Int'l L. 866 (1978). See supra Chapter IV, n. 85. 



Exclusive Economic Zone 1 09 



Chapter VII 
Exclusive Economic Zone 



Juridical Regime 

The Exclusive Economic Zone (EEZ) concept gained general acceptance 
early in the negotiations at the Third United Nations Conference on the Law 
of the Sea (UNCLOS III). A balance between coastal State interests, particularly 
developing States, and the interests of maritime, land-locked, and geographically 
disadvantaged States was required, however, before final acceptance of an EEZ 
text could be achieved. The underlying purpose for creating this new maritime 
regime was to give coastal States increased rights over the resources off their 
coasts, while curtailing the trend of national claims to broader territorial seas and 
preserving as many high seas freedoms as possible. 

At UNCLOS III, a fundamental issue was the legal status of EEZ waters. 
Intense debates arose regarding the legal nature of coastal State rights in the EEZ 
and the relationship to the rights of other States in the same EEZ. The consensus 
developed that non-resource-related high seas freedoms, including the freedoms 
of navigation and overflight, and the freedoms to lay pipelines and submarine 
cables, would be preserved in the EEZ. Yet, even the exercise of these freedoms 
had to be balanced against the exercise of EEZ rights by the coastal State. Article 
58, for example, recognizes the enjoyment of high seas freedoms by all States, 
"subject to the relevant provisions of this Convention," and with "due regard 
to the rights and duties of the coastal State." 

The LOS Convention strikes a balance between the rights and duties of coastal 
States on the one hand, and of all other States on the other. Part V, articles 53 
through 75, of the LOS Convention, pertains to the EEZ. Article 56 addresses 
the rights, jurisdiction, and duties of the coastal State in the EEZ. Paragraph 1 
of this article distinguishes sovereign rights from jurisdiction: 

1. In the exclusive economic zone, the coastal State has: 

(a) sovereign rights for the purpose of exploring and exploiting, conserv- 
ing and managing the natural resources, whether living or non-living, of 
the waters superjacent to the seabed and of the seabed and its subsoil, 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; 

(b) jurisdiction as provided for in the relevant provisions of this Conven- 
tion with regard to: 



1 1 Excessive Maritime Claims 

(i) the establishment and use of artificial islands, installations and 
structures; 

(ii) marine scientific research; 

(iii) the protection and preservation of the marine environment; 

(c) other rights and duties provided for in this Convention. 

Article 57 defines the breadth of the EEZ to be no more than 200 miles from 
the baseline from which breadth of the territorial sea is measured. 

Article 58 pertains to the rights and duties of other States in the EEZ. Whereas 
Article 56(2) proclaims that coastal States "shall have due regard to the rights 
and duties of other States" in the EEZ, Article 58(3) places similar requirements 
on other States: 

In exercising their rights and performing their duties under this Convention in 
the exclusive economic zone, States shall have due regard to the rights and duties 
of the coastal State and shall comply with the laws and regulations adopted by the 
coastal State in accordance with the provisions of this Convention and other rules 
of international law in so far as they are not incompatible with this Part. 

Although it is not specific, Article 59 provides a basis for resolving disputes 
over rights and duties not addressed in the Convention. The conflict "should 
be resolved on the basis of equity and in the light of all the relevant circumstances, 
taking into account the respective importance of the interests involved to the 
parties as well as to the international community as a whole." 

Article 60 sets out the provisions for the coastal State to construct and to 
authorize and regulate the construction, operation, and use of artificial islands, 
installations, and structures in its EEZ. 

Of the remaining 15 articles on the EEZ, 13 specifically relate to living 
resources jurisdiction in the zone. Of particular importance to foreign fishermen 
is Article 73 on the enforcement of laws and regulations by the coastal State. 
Paragraph 3 provides that coastal State penalties for violation of fisheries 
legislation in the EEZ "may not include imprisonment, in the absence of 
agreements to the contrary by the States concerned." 

Status as Customary Law 

The American Law Institute describes the evolution of the exclusive eco- 
nomic zone, as follows: 

In the decades following the Second World War, several Latin American states, 
and later a few African states, purported to extend their territorial sea to 200 
nautical miles, principally to obtain the exclusive right to fish and to regulate 



Exclusive Economic Zone 111 

fishing in that area. For some time, major maritime powers, including the United 
States, resisted that expansion. . . . However, in 1976, the United States itself 
adopted the Fishery Conservation and Management Act, 16 U.S.C. sec. 1811, 
which established a 200-mile fishery zone, and was followed prompdy by Canada, 
Mexico, and several other countries. This development was encouraged by the 
compromise on the subject developed at the Third United Nations Conference on 
the Law of the Sea, which gave to the coastal states jurisdiction over certain activities 
in a 200-mile zone, including "sovereign rights" for the purpose of exploring and 
exploiting, conserving and managing both the living and nonliving natural resources 
of that zone, but preserved for maritime states most high seas freedoms. 

In 1983, President Reagan, by Proclamation No. 5030, established an exclusive 
economic zone of the United States and asserted rights over natural resources thereof, 
both living and nonliving, as well as over economic activities in the zone. . . . 

The Soviet Union objected to this proclamation, arguing that it constituted a 
unilateral attempt to break up "the package" agreed upon at the Law of the Sea 
Conference (U.N. Doc. A/38/175 (1983), reprinted in UN Office for Ocean 
Affairs and the Law of the Sea, The Law of the Sea: Current Developments in 
State Practice (UN Sales No. E.87.V.3), p.141); the Group of 77 (representing 
the developing countries) and the Group of Eastern European (Socialist) Countries 
made similar objections (U.N. Doc LOS/PCN/5 & LOS/PCN/6 (1983)). Many 
states that signed the Convention, presumably with the intent to ratify it, also 
proclaimed exclusive economic zones before they ratified the Convention and 
without waiting for the LOS Convention to come into force. 

In 1984, a Chamber of the International Court of Justice expressed its 
opinion as to the status of the exclusive economic zone in customary interna- 
tional law, which included the following: 

Turning lasdy to the proceedings of the Third United Nations Conference on the 
Law of the Sea and the final result of that Conference, the Chamber notes in the first 
place that the Convention adopted at the end of the Conference has not yet come into 
force and that a number of States do not appear inclined to ratify it. This, however, in 
no way detracts from the consensus reached on large portions of the instrument and, 
above all, cannot invalidate the observation that certain provisions of the Convention, 
concerning the continental shelf and the exclusive economic zone, which may, in fact, 
be relevant to the present case, were adopted without any objections. The United States, 
in particular, in 1983 . . . proclaimed an economic zone on the basis of Part V of the 
1982 Convention. This proclamation was accompanied by a statement by the President 
to the effect that in that respect the Convention generally confirmed existing rules of 
international law. Canada, which has not at present made a similar proclamation, has for 
its part also recognized the legal significance of the nature and purpose of the 200-mile 
regime. This concordance of views is worthy of note, even though the present Judgment 
is not directed to the delimitation of the exclusive economic zone as such. In the 
Chamber's opinion, these provisions, even if in some respects they bear the mark of the 
compromise surrounding their adoption, may nevertheless be regarded as consonant at 
present with general international law on the question. 3 



112 Excessive Maritime Claims 

Table 9 lists those States claiming an exclusive economic zone as of July 1994. In 
addition, the eight coastal States of the North Sea have agreed to: 

either establish . . . Exclusive Economic Zones in the areas of the North Sea 
where they do not exist for the purpose of protecting the marine environment, 
or of increasing coastal State jurisdiction for that purpose, in accordance with 
international law and without going beyond the scope of the provisions of the 
United Nations Convention on the Law of the Sea (1982). 

Table 9 
Exclusive Economic Zones (94) 



Antigua 
and Barbuda 3 


Guinea-Bissau 3 
Haiti 


Portugal 
Qatar 


Argentina 3 


Honduras 3 


Romania 


Bangladesh 
Barbados 3 


Iceland 3 
India 


Russia 

Saint Kitts and Nevis 3 


Belize 3 


Indonesia 3 


Saint Lucia 3 


Brazil 3 


Iran 


Saint Vincent and the 


Brunei 


Jamaica 3 


Grenadines 3 


Bulgaria 

Burma 

Cambodia 


Kenya 3 
Kiribati 
Korea, North 


Sao Tome & Principe 3 

Senegal 3 

Seychelles 3 


Cape Verde 3 


Latvia 


Solomon Islands 


Chile 

Colombia 

Comoros 


Madagascar 

Malaysia 

Maldives 


Spain 
Sri Lanka 
Suriname 


Cook Islands 


Marshall Islands 3 


Sweden 


Costa Rica 3 


Mauritania 


Tanzania 3 


Cote d'lvoire 3 


Mauritius 


Thailand 


Cuba 3 

Djibouti 3 

Dominica 3 


Mexico 3 
Micronesia, 
Fed. States of 3 


Togo 3 
Tonga 
Trinidad & Tobago 3 


Dominican Republic 

Egypt 3 

Equatorial Guinea 


Morocco 

Mozambique 

Namibia 3 


Turkey (Black Sea) 

Tuvalu 

Ukraine 


Estonia 


New Zealand e 


United Arab Emirates 


Fiji 3 


Nigeria 3 


United States* 


France 


Niue 


Vanuatu 


Gabon 
Ghana 3 


Norway 
Oman 3 


Venezuela 
Vietnam 


Grenada 3 


Pakistan 


Western Samoa 


Guatemala 


Philippines 3 


Yemen 3 


Guinea 3 


Poland 


Zaire 3 



aRatified the 1982 LOS Convention. 

Includes all French overseas departments and territories. 
c North Korea also claims a 50 mile "military boundary line" in the Sea of Japan and to the EEZ median 
line in the Yellow Sea within which all foreign vessels and aircraft are banned without permission. 

The Maldives' economic zone is defined by geographical coordinates. The zone is, in part, a rectangle and, in part, 
a boundary with India. The breadth of the zone varies from approximately 35 miles to more than 300 miles. 
e Includes Tokelau. 



Exclusive Economic Zone 113 

Includes Puerto Rico, U.S. Virgin Islands, American Samoa, Guam, Johnston Atoll, Palmyra Atoll, 
Midway Island, Wake Island, Jarvis Island, Kingman Reef, Howland Island, Baker Island, Northern Marianas. 
Palau, which is stiD part of the Trust Territory of the Pacific Islands, claims a 3-mile territorial sea and a 200- 
mile fishery zone. 

Source: U.S. Department of State, Office of Ocean Affairs. 



The Restatement (Third) distinguishes those aspects of the regime of the 
EEZ considered to be customary law from those which are contractual in 
nature: 

Recent practice of states, supported by the broad consensus achieved at the 
Third United Nations Conference on the Law of the Sea, has effectively 
established as customary law the concept of the exclusive economic zone, the 
width of the zone (up to 200 nautical miles), and the basic rules governing it. 
These are binding, therefore, on states generally even before the LOS Convention 
comes into effect and thereafter even as to states not party to the Convention. In 
those respects the Convention is an authoritative statement of customary 
law. . . . When the Convention enters into force, parties to the Convention will 
have rights and obligations with respect to the exclusive economic zone in addition 
to those applicable to all states under this section. 

Disputes between parties to the Convention with respect to violations of 
provisions that relate to "the freedoms and rights of navigation, overflight or the 
laying of submarine cables and pipelines" in the exclusive economic zone, or to 
"other internationally lawful uses of the sea related to those freedoms," whether 
committed by the coastal state or the state exercising those freedoms, would be 
subject to the jurisdiction of the courts and arbitral tribunals provided for by Article 
287 of the Convention. . . . Disputes that relate to the fulfillment by a coastal state 
of certain obligations with respect to the conservation of and access to living 
resources of the zone, or with respect to scientific research in the zone, can be 
submitted to a conciliation commission by any party to the dispute. . . . 5 

United States Policy 

On March 8, 1983, the United States, in response to statements made during 
the December 1982 plenary meetings of UNCLOS III, exercised its right of 
reply, which in regard to the exclusive economic zone said: 

Some speakers described the concept of the exclusive economic zone in a 
manner inconsistent with the text of the relevant provisions of the Convention 
adopted by the Conference. 



In this zone beyond its territory and territorial sea, a coastal State may assert 
sovereign rights over natural resources and related jurisdiction, but may not claim 
or exercise sovereignty. The extent of coastal State authority is carefully defined 
in the Convention adopted by the Conference. For instance, the Convention, iri 



1 1 4 Excessive Maritime Claims 

codifying customary international law, recognizes the authority of the coastal State 
to control all fishing (except for the highly migratory tuna) in its exclusive 
economic zone, subject only to the duty to maintain the living resources through 
proper conservation and management measures and to promote the objective of 
optimum utilization. Article 64 of the Convention adopted by the Conference 
recognizes the traditional position of the United States that highly migratory 
species of tuna cannot be adequately conserved or managed by a single coastal 
State and that effective management can only be achieved through international 
cooperation. With respect to artificial islands, installations and structures, the 
Convention recognizes that the coastal State has the exclusive right to control the 
construction, operation and use of all artificial islands, of those installations and 
structures having economic purposes and of those installations and structures that 
may interfere with the coastal State's exercise of its resource rights in the zone. 
This right of control is limited to those categories. 6 

The Comments of the Restatement (Third) to the section on the EEZ 
describe the limited authority of the coastal State in the exclusive economic zone 
in part as follows: 

The coastal state does not have sovereignty over the exclusive economic zone 
but only "sovereign rights" for a specific purpose — the management of natural 
resources and other economic activities. . . . The coastal state's authority (called 
4 jurisdiction" in the LOS Convention) is even more limited with respect to 
artificial islands in the exclusive economic zone and such installations and 
structures as may be required for economic purposes, and with respect to marine 
scientific research and the protection of the marine environment. 

By Presidential Proclamation, the United States established an Exclusive Eco- 

Q 

nomic in 1983. (See Appendix 2.) 

In a speech at the 10th annual seminar sponsored by the Center for Ocean 
Law and Policy, Southampton, Bermuda, March 14, 1986, Ambassador John 
D. Negroponte, Assistant Secretary for Oceans and International Environmen- 
tal, and Scientific Affairs, explained the United States approach to U.S. legislation 
on the exclusive economic zone, as follows: 

From a broad domestic policy vantage, the Administration — pursuant to the 
President's EEZ proclamation and accompanying oceans policy statement of 
March 10, 1983 — decided that, in lieu of enacting comprehensive EEZ 
legislation reflecting the jurisdiction accorded coastal states in the EEZ, it was 
preferable to amend individually the numerous Federal statutory provisions 
regulating activities in the EEZ. This decision was taken for numerous reasons. 
Not least among them was the desire to avoid, wherever possible, the considera- 
tion of such omnibus legislation by the myriad of congressional committees which 
would have cognizance over such proposals. We also wished to avoid engaging 
in possible State/Federal debates. Consequently, the executive branch, at the 
request of the National Advisory Committee on the Oceans and Atmosphere, 
undertook a comprehensive analysis of present statutory authorities. The review 



Exclusive Economic Zone 115 

is well along and will ultimately be filed with the committee. It should be noted, 
however, that the review does not, in the main, recommend any particular course 
of action, concentrating primarily on identifying jurisdictional shortfalls. 9 

Excessive Claims 

Several States have enacted laws claiming rights that could exceed those 
authorized in the LOS Convention. For example, in 1978, the Government of 
Barbados claimed the right to extend the application of any of its laws to its 
EEZ. The United States protested as follows: 

Of particular concern ... is the provision of the Marine Boundaries and Jurisdic- 
tion Act, 1978 which purports to grant authority to the Governor-General of 
Barbados to extend the application of any law of Barbados to the claimed exclusive 
economic zone of Barbados. It is the view of the Government of the United States 
that claims made by the Marine Boundaries and Jurisdiction Act, 1978, including 
the claim of unlimited authority to extend the law of Barbados over maritime 
areas, are without foundation in international law. 10 

Burma also claims broad authority in its EEZ. In Article 18(b) of the 
Territorial Sea and Maritime Zones Law, 1977, Burma claimed: 

exclusive rights and jurisdiction for the construction, maintenance or operation 
of artificial islands, offshore terminals, installations and other structures and devices 
necessary for the exploration of its natural resources, both living and non-living, 
or for the convenience of shipping or for any other purpose. ," 

The relevant portion of the U.S. protest note read as follows: 

The Government of the United States also wishes to refer to those provisions of the 
Territorial Sea and Maritime Zones Law, 1977 which purport to assert jurisdiction 
over the . . . exclusive economic zone of Burma in a manner which is contrary to 
international law, including inter alia: ... a claim of authority to subject the exercise 
of freedom of navigation and overflight in the exclusive economic zone to the exercise 
by Burma of broadly-defined rights. The Government of the United States wishes to 
remind the Government of Burma that international law limits the jurisdiction which 
a coastal state may exercise in maritime areas. It is the view of the Government of the 
United States that the aforementioned claims made in the Territorial Sea and Maritime 
Zones Law, 1977 exceed such limits. 12 

Additional guidance provided to the Embassy for use when delivering the 
note included the following: 

The provision of Burmese law which claims broadly-defined rights of Burma to 
control activities in the claimed economic zone is also particularly troublesome. 
This assertion of jurisdiction seaward for 200 miles is of greatest concern to the 
USG because enjoyment of high seas freedoms in the zone is specifically made 



1 1 6 Excessive Maritime Claims 

subject to such broadly-defined rights. The end result is, in effect, a denial that 
there are freedoms to be enjoyed in the zone. The USG cannot accept that result 
as being lawful. 13 

The United States protested similar legislation by Grenada and Guyana in 
1982, India 16 in 1983, and Mauritius, 17 Pakistan 18 and the Seychelles 19 in 1982. 

The Department of State provided the following background when explain- 
ing its concern about these laws: 

The draft LOS treaty does not authorize a coastal state to exercise the type of 
jurisdiction claimed by [the government], such as the unlimited authority to 
designate areas within various maritime zones and to regulate to any extent 
considered necessary the use of such areas, and, if [the government's] laws and 
regulations can be extended over claimed maritime zones without limitation, 
every human endeavor that might take place within hundreds of miles of the coast 
is being subjected to [the government's] control. In our opinion, the draft LOS 
treaty does not authorize unilateral claims to such comprehensive authority over 
these broad ocean areas. 20 

In response to a declaration concerning the exclusive economic zone accom- 
panying Egypt's deposit of its instrument of ratification of the 1982 Law of the 
Sea Convention on August 26, 1983, the United States expressed its concerns 
in a diplomatic note, as follows: 

With respect to the declaration of the Government of Egypt, that it will exercise 
its rights in an exclusive economic zone and will take the necessary arrangements 
to regulate all matters relating to that zone, the United States notes with satisfaction 
the declaration of the Government of Egypt that it will act in a manner compatible 
with international law and having due regard for the rights and duties of other 
states. The United States assumes that the exercise of the types of jurisdiction in 
the exclusive economic zone, claimed by the Government of Egypt in the 
declaration, will, accordingly, be limited by the rules of international law reflected 
in the applicable provisions of the Convention. 21 

The Department of State sought clarification that Article 22(c) of the 
Archipelagic Waters and Exclusive Economic Zone Act No. 24 of 1986, which 
required the written permission of Trinidad and Tobago to establish or use 
any artificial island, installation or structure in its EEZ, would be applied in 
accordance with the principles of international law: 

Under customary international law, as reflected in article 60 of the 1982 Conven- 
tion, coastal states have the exclusive right to authorize and regulate the construc- 
tion, operation and use of only those installations and structures which relate to 
natural resources under article 56, or other economic purposes, or which may 
interfere with the exercise of the rights of the coastal state in the zone. 



Exclusive Economic Zone 1 1 7 
The Ministry of External Affairs replied as follows: 

With respect to the scope of application of section 22(c) of the Act, it is advised 
that article 60(1) refers to two distinct classes of installations and structures, namely 
installations and structures for the purposes provided for in article 56 and other 
economic purposes; as well as installations and structures which may interfere with 
the exercise of the rights of the coastal state in the exclusive economic zone. In 
addition, under article 258 of the Convention the deployment and use of any type 
of scientific research installation or equipment in any area of the marine environ- 
ment is subject to the same conditions as are prescribed in the Convention for the 
conduct of marine scientific research in any such area. Accordingly, the require- 
ment in section 22(c) of the Act that written consent be obtained for the 
establishment and use of artificial islands, installations and structures in the 
exclusive economic zone of Trinidad and Tobago will be applied in accordance 
with the relevant provisions of the Convention in respect of artificial islands, 
installations and structures herein before referred to and, in particular, in respect 
of those which may interfere with the exercise of the rights of Trinidad and 
Tobago in the exclusive economic zone, as determined by Trinidad and Tobago. 24 

Maldives, in Law No. 30/76, 5 December 1976, delimited its exclusive 
economic zone by reference to geographic coordinates in the high seas. A 1982 
United States' Diplomatic Note challenging this law read in part: 



Such claims have no basis in international law. In asserting jurisdiction over areas 
extending seaward from its land territory, a coastal state must measure the breadth 
of any such areas from baselines drawn in accordance with international law. The 
normal baseline is the low-water line along the coast, and the limited exceptions 
to this rule only allow for the use of straight baselines to connect coastal features 



in certain circumstances. 



25 



Article 73(1) of the LOS Convention expressly prohibits the coastal State from 
imprisoning violators of national fishery regulations, unless agreed to between the 
concerned States. Nevertheless, the following countries have included imprison- 
ment provisions, or potential for imprisonment penalties, in their EEZ laws: 



Antigua & Barbuda 

Bangladesh 

Barbados 

Burma 

Cape Verde 



Grenada 

Guinea-Bissau 

India 

Maldives 

Mauritius 



Nigeria 

Niue 

Pakistan 

Philippines 

Portugal 



Senegal 

Seychelles 

Suriname 

Vanuatu 

Yemen 



Notes 



1. CHURCHILL & LOWE, THE LAW OF THE SEA 133-34 (2d rev. ed. 1988). 



1 1 8 Excessive Maritime Claims 

2. 2 RESTATEMENT (THIRD), FOREIGN RELATIONS LAW OF THE UNITED STATES, §511 
Reporters' Note 7, at 33-34 [hereinafter RESTATEMENT (THIRD)]. For the 1984 decree as to the exclusive 
economic zone of the U.S.S.R., see U.N. LOS BULL., No. 4, Feb. 1985, at 31. See also United Nations, Law 
of the Sea: National Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive 
Fishery Zone, U.N. Pub. E.85.V.10 (1986) [hereinafter U.N. National Legislation on the EEZ], containing 
the legislation of 78 States with respect to such zones. The Office of Ocean Affairs, U.S. Department of State 
on July 1, 1994, lists 94 States claiming an exclusive economic zone. See Table 9. 

3. Case Concerning Delimitation of the Maritime Boundary of the Gulf of Maine (Canada /United States), [1984] 
I.CJ. 246, 294, at para. 94. The full court has also expressed its view that the concept of the EEZ is customary 
law: Case Concerning the Continental Shelf (Tunisia /Libya), [1982] ICJ Rep. 74, at para 100; Case Concerning the 
Continental Shelf (Libya /Malta), [1985] ICJ Rep. 33, at para. 34; Case Concerning the Maritime Delimitation in the 
Area between Greenland and Jon Mayen, judgment para. 47-48 (June 14, 1993). The United Kingdom has 
indicated it agrees with this view. See Brit. Y.B. Int'l L. 1984, at 557 (1985). Accord, KWIATKOWSKA, THE 
200 MILE EXCLUSIVE ECONOMIC ZONE IN THE NEW LAW OF THE SEA 27-37 (1989) and ATTARD, 
THE EXCLUSIVE ECONOMIC ZONE IN INTERNATIONAL LAW 277-309 (1987). 

4. Declaration on the coordinated extension ofjurisdiction in the North Sea, Sep. 22, 1922, U.N. LOS 
BULL., No. 23, June 1993, at 65. 

5. RESTATEMENT (THIRD), §514 Cmt. a, at 56, and Cmt. j, at 61. See also id., Reporters' Note 1, at 
62, and infra Chapter XIV. 

6. U.N. Doc. A/CONF.62/WS/37, 17 Official Records of the Third U.N. Conference on the Law of 
the Sea 244 [hereinafter Official Records]. Effective January 1, 1992, the United States exercised jurisdiction 
over highly migratory species of tuna within its EEZ. Section 103 of the Fisheries Conservation Amendments 
of 1990, Pub.L. No. 101-627, amending 16 U.S.C. §1812. Effective November 28, 1990, the United States 
recognized similar assertions by coastal nations regarding their EEZs. Presidential Statement on Signing the 
Fishery Conservation Amendments of 1990, Weekly Comp. Pres. Doc, 1933 (Dec. 3, 1990). 

The United States statement in reply was referring, in particular, to this portion of the December 7, 1982, 
statement by the representative of Brazil: 

.... Furthermore, it is our understanding that in accordance with the Convention the coastal State 
has the exclusive right to construct and to authorize the construction, operation and use of all types 
of installations and structures within the maritime areas under its sovereignty or jurisdiction and that 
there are no exceptions to this right. In other words, no State has the right to place or to operate any 
type of installation or structure in the exclusive economic zone or on the continental shelf without 
the consent of the coastal State. 

17 Official Records 40, paras. 26 & 28. Brazil's declarations on ratification of the Convention were substantially 
similar to the above; they may be found in U.N. Office for Ocean Affairs and the Law of the Sea, The Law 
of the Sea: Current Developments in State Practice No. II, at 88 (U.N. Sales No. E.89.V.7, 1989) [hereinafter 
U.N. Current Developments No. II]. Brazil's implementing legislation, Law 8,617 ofjanuary 4, 1993, articles 
8 and 10, continue to assert these views which are inconsistent with the relevant provisions of the LOS 
Convention. Uruguay made a similar declaration on signature and ratification of the LOS Convention. U.N. 
Multilateral Treaties Deposited with the Secretary-General: Status as of December 31, 1992, U.N. Doc. 
ST/LEG/SER.E/1 1 , at 774 (1993). Italy rejected these claims in its declaration on signature of the Convention, 
confirming its written statement dated Mar. 7 1983, as follows: 

the rights of the Coastal State to build and to authorize the construction, operation and the use of 
installations and structures in the exclusive economic zone and on the continental shelf is limited only 
to the categories of such installations and structures as listed in article 60 of the Convention. 

Id. at 770. 

7. Id., sec. 514, Cmt. c at 57. See also id., sec. 511, Cmt. b, and Sec. 514, Cmts. g-i. In a Declaration on 
the coordinated extension ofjurisdiction in the North Sea, Sept. 22, 1992, for the purpose of protecting the 
marine environment, the EC Ministers agreed to act "in accordance with international law and without going 
beyond the scope of the provisions of the LOS Convention and to implement in their national legislation 
those generally accepted international rules and standards, including the relevant provisions of the LOS 
Convention. UN. LOS BULL., No. 23, June 1993, at 65-66. 

8. Presidential Proclamation 5030, Mar. 10, 1983, 48 Fed. Reg. 10,601; 3 CFR 2 (1983 Comp.); 16 
U.S.C. A. §1453 Note; reprinted in U.N. Office of the Special Representative of the Secretary-General for the 
Law of the Sea, The Law of the Sea: Current Developments in State Practice, at 135 (U.N. Sales No. E.87.V.3, 



Exclusive Economic Zone 1 1 9 

1987) [hereinafter U.N. Current Developments No. I]; 83 DEPT ST. BULL., No. 2075, June 1983, at 71; 
and 77 Am. J. Int'l L. 619 (1983). 

9. DEP'T ST. BULL., Sept. 1986, at 85. The analysis of statutory authorities referred to in Ambassador 
Negroponte's speech never received interagency clearance and thus was not delivered to Congress. 

10. Diplomatic Note No. 152 dated June 14, 1982, from American Embassy Bridgetown. State 
Department telegram 1 16140, June 11, 1982, American Embassy Bridgetown telegram 02993, June 15, 1982. 
Barbados' Marine Boundaries and Jurisdiction Act, 1978, may be found in U.N. National Legislation on the 
EEZ, at 40-48. 

11. Territorial Sea and Maritime Zones Law, 1977, may be found in U.N. National Legislation on the 
EEZ at 49, and in SMITH, EXCLUSIVE ECONOMIC ZONE CLAIMS 85 [hereinafter SMITH, EEZ CLAIMS] 
(emphasis added). 

12. American Embassy Rangoon Diplomatic Note delivered on Aug. 6, 1982, pursuant to instructions 
contained in State Department telegram 196007, July 15, 1982; American Embassy Rangoon telegram 03243, 
Aug. 9, 1982. 

13. State Department telegram 196007, July 15, 1982. 

14. American Embassy Bridgetown, July 21, 1982, Note No. 004. State Department telegram 200855, 
July 20, 1982, American Embassy Bridgetown telegram 03658, July 23, 1982. The Grenada Marine Boundaries 
Act, 1978, may be found in U.N. National Legislation on the EEZ, at 116-24. 

15. American Embassy Georgetown Diplomatic Note dated July 20, 1982. State Department telegram 
194561, July 14, 1982, American Embassy Georgetown telegram 3242, July 23, 1982. The Guyana Maritime 
Boundaries Act, 1977, may be found in U.N. National Legislation on the EEZ, at 128-37, and in U.N. Office 
for Ocean Affairs and the Law of the Sea, The Law of the Sea, National Legislation on the Continental Shelf, 
at 117-22 (U.N. Sales No. E.89.V.5, 1989) [hereinafter U.N. Legislation on the Continental Shelf]. 

16. American Embassy New Delhi Diplomatic Note delivered May 13 & 16, 1983. State Department 
telegram 128220, May 9, 1983, American Embassy New Delhi telegram 09947, May 16, 1983. India Maritime 
Zones Act, 1976, may be found in U.N. National Legislation on the EEZ, at 144-49 and in U.N. Legislation 
on the Continental Shelf, at 129-34. 

17. American Embassy Port Louis Diplomatic Note No. 83 dated July 17, 1982. State Department 
telegram 204808, July 23, 1982, American Embassy Port Louis telegram 02502, July 28, 1982. Mauritius 
Maritime Zones Act, 1977, may be found in U.N. National Legislation on the EEZ, at 183-86 and in U.N. 
Legislation on the Continental Shelf, at 168-72. 

18. American Embassy Islamabad Diplomatic Note No. 694 dated June 8, 1982. State Department 
telegram 155385, June 7, 1982, American Embassy Islamabad telegram 09069, June 14, 1982. Pakistan's 
Territorial Waters and Maritime Zones Act, 1976 may be found in U.N. Legislation on the Continental Shelf, 
at 189-93. 

19. American Embassy Victoria Diplomatic Note No. 37, dated July 8, 1982. State Department telegram 
156775, June 8, 1982, American Embassy Victoria telegram 01 170, July 14, 1982. Seychelles Maritime Zones 
Act, 1977, may be found in U.N. National Legislation on the EEZ, at 275-79 and in U.N. Legislation on the 
Continental Shelf, at 236-39. 

20. E.g., State Department telegram 204808, July 23, 1982, to American Embassy Port Louis supra n. 17. 

21. Diplomatic Note delivered Feb. 26, 1985, by American Embassy Cairo pursuant to instructions 
contained in State Department telegram 364687, Dec. 12, 1984. American Embassy Cairo telegram 05527, 
Feb. 27, 1985. Egypt's declaration may be found in U.N. Status of the United Nations Convention on the 
Law of the Sea, at 35-36 (U.N. Sales No. E.85.V.5, 1985). 

22. Article 22(c) of the Act may be found in U.N. Current Developments No. II, at 42. This right was 
first claimed in Ministry of Foreign Affairs Notice 500, May 27, 1983, which may be found in SMITH, EEZ 
CLAIMS, at 455. See also KWIATOKWSKA, supra n. 3, at 113-15. 

23. Diplomatic Note No. 34 delivered in Mar. 1987, from American Embassy Port of Spain (emphasis 
added), pursuant to instructions contained in State Department telegram 075631, Mar. 14, 1987. American 
Embassy Port of Spain telegram 00822, Mar. 23, 1987. 

24. Diplomatic Note No. 743 dated July 9, 1987, from the Ministry of External Affairs at Port of Spain 
reported in American Embassy Port of Spain telegram 01973, June 14, 1987. 

25. Diplomatic Note dated Aug. 2, 1982, from American Embassy Colombo, pursuant to instructions 
contained in State Department telegram 150666, June 2, 1982; American Embassy Colombo telegram 04672, 
Aug. 6, 1982. 

26. The legislation is reproduced in U.N. National Legislation on the EEZ. The Secretary-General has 
also noted that such provisions are "contrary" to the Convention (U.N. Doc. A/47/512, para. 36, at 10), as 
has Professor Kwiatkowska, who suggests some 32 states have enacted legislation inconsistent with this 
provision (supra n. 3, at 87). 



Continental Shelf 121 



Chapter VIII 
Continental Shelf 



Geologic Definition 

The scientific (geomorphological) definition of a continental shelf differs from 
the juridical definition. In a model geomorphological situation, the continental 
shelf is the submerged prolongation of the coastal State and consists of the 
gently-sloping platform which extends seaward from the land to a point where 
the downward inclination increases markedly as one proceeds down the con- 
tinental slope. The depth at which the break in angle of inclination occurs varies 
widely from place to place and often is difficult to define precisely. At the foot 
of the slope, the continental rise begins; a second gently-sloping plain which 
gradually merges with the floor of the deep seabed. The shelf, slope, and rise, 
taken together, are geologically known as the continental margin. 

Juridical Definition 

The first wave of post- World War II national claims to expanded ocean areas 
began with President Truman's 1945 Proclamation on the Continental Shelf, 
by which the United States asserted exclusive sovereign rights over the resources 
of the continental shelf off its coasts. The Truman Proclamation specifically stated 
that waters above the shelf were to remain high seas and that freedom of 
navigation and overflight were not affected. 

The definition of the continental shelf established at the First United Nations 
Conference on the Law of the Sea in 1958 was vague and flexible. Article 1(a) 
of the Convention on the Continental Shelf states that the continental shelf 
refers: 

to 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 of the exploitation of the natural 
resources of the said areas. 3 

At the Third United Nations Conference on the Law of the Sea (UNCLOS 
III), the 1958 definition was discarded and an attempt was made to develop a 
logical and satisfactory definition of the continental margin that included not 
only the continental shelf but also the continental slope and rise. Article 76(1) 
of the LOS Convention defines the continental shelf: 

The continental shelf of a coastal State comprises the sea-bed and subsoil of the 
submarine areas that extend beyond its territorial sea throughout the natural , 
prolongation of its land territory to the outer edge of the continental margin, or 



1 22 Excessive Maritime Claims 

to a distance of 200 nautical miles from the baselines from which the breadth of 
the territorial sea is measured where the outer edge of the continental margin does 
not extend up to that distance. 

Regardless of the seafloor features, a State may claim, at a minimum, a 
200-mile continental shelf. Under other LOS Convention provisions, a State 
has the right to claim a 200-mile EEZ which includes jurisdictional rights over 
the living and nonliving resources of the seafloor and seabed. Thus, for those 
States whose physical continental margin does not extend farther than 200 miles 
from the territorial sea baseline, the concept of the continental shelf is of less 
importance than before. 

Paragraphs 3-7 of Article 76, which provide a rather complex formula for 
defining the "continental shelf', apply only to States that have physical con- 
tinental margins extending more than 200 miles from the coast. A few items in 
these paragraphs are of particular interest: 

— the margin does not include the deep ocean floor with its ocean ridges 
(paragraph 3); 

— if the continental margin extends beyond 200 miles, the outer limit shall 
be measured by one of two methods described in paragraph 4: 

— the subparagraph (a)(i) margin definition is based on the determina- 
tion of thickness of sediments. The margin can extend to that point where 
the thickness of sediments "is at least 1 percent of the shortest distance from 
such point to the foot of the continental slope." Thus, if at a given point 
beyond 200 miles from the baseline, the sediment thickness is 3 kilometers, 
then that point could be as much as 300 kilometers seaward of the foot of the 
continental slope, subject to the provisions of paragraph 5; 

— subparagraph (a) (ii) defines the continental margin using a limit not 
more than 60 miles from the foot of the continental slope; 

— paragraph 5 limits any continental shelf definition at either 350 miles 
from the territorial sea baseline or 100 miles from the 2,500 meter isobath, 
whichever is further seaward. It is important to recognize that for paragraph 
5 to be relevant, the requirements set forth in paragraph 4 must first be met; 

— on submarine ridges, the outer limit shall not exceed 350 miles from the 
territorial sea baselines, but this provision does not apply "to submarine 
elevations that are natural components of the continental margin, such as its 
plateaux, rises, caps, banks and spurs" (paragraph 6). (See Figure 1.) 

It seems widely accepted that the broad principles of the continental shelf 
regime reflected in Articles 76-81 of the 1982 LOS Convention were established 
as customary international law by the broad consensus achieved at UNCLOS 
III and the practice of nations. The rights of the coastal State over the continental 
shelf do not affect the legal status of the superjacent waters or of the airspace 
above those waters. Coastal or island nations do not have sovereign rights per 



Continental Shelf 123 



Figure 1 



CONTINENTAL SHELF DELIMITATION 

CONTINENTAL MARGIN 



350 NAUTICAL MILES 



TERRITORIAL 
SEA BASELINE 



200 NAUTICAL 
MILES 



X NAUTICAL MILES 
* ► 



2500 METER 

ISOBATH 

+100 NAUTICAL 

MILES 




FOOT OF CONTINENTAL SLOPE 



CONTINENTAL RISE 
(SEE SEDIMENT TEST) 1 % OF X 

' NAUTICAL MILES 



1% 



DEPTH OF SEDIMENT TEST 

60 NAUTICAL MILES OR LESS 



POINTh^ x n x n 

/WTERMOST POINTS WHERE SEDIMENT DEPTH IS 1% 

I s OF THE SHORTEST DISTANCE TO FOOT OF SLOP 




1% 

POINT 



FOOT OF 
CONTINENTAL 
SLOPE ^4. 



124 Excessive Maritime Claims 

se to that part of its continental shelf extending beyond the territorial sea, only 
to the exploration and exploitation of its natural resources. Shipwrecks lying 
on the continental shelf beyond the outer limit of the contiguous zone are not 
considered to be "natural resources." All nations have the right to lay submarine 
cables and pipelines on the continental shelf, in accordance with Article 79 of 

Q 

the LOS Convention. Submarine cables include telegraph, telephone, and 
high-voltage power cables. 

Delimitation of the Outer Edge of the Continental Shelf 

In response to statements made during the December 1982 plenary meetings of 
UNCLOS III, on March 8, 1983, the United States exercised its right of reply, 
which, in regard to the continental shelf regime stated: 

Some speakers made observations concerning the continental shelf. The 
Convention adopted by the Conference recognizes that the legal character of 
the continental shelf remains the natural prolongation of the land territory of 
the coastal State wherein the coastal State has sovereign rights for the purpose 
of exploring and exploiting its natural resources. In describing the outer limits 
of the continental shelf, the Convention applies, in a practical manner, the 
basic elements of natural prolongation and adjacency fundamental to the 
doctrine of the continental shelf under international law. This description 
prejudices neither the existing sovereign rights of all coastal States with respect 
to the natural prolongation of their land territory into and under the sea, which 
exists ipso facto and ab initio by virtue of their sovereignty over the land territory, 
nor freedom of the high seas, including the freedom to exploit the sea-bed 
and subsoil beyond the limits of coastal State jurisdiction. 

As stated above, the outer edge of any juridical (as opposed to physical) 
continental margin extending beyond 200 miles from the baseline is to be 
determined in accordance with either the depth of sediment test (set forth in 
Article 76(4) (a) (i) of the 1982 LOS Convention), or along a line connecting 
points not more than 60 miles from the foot of the continental slope (Article 
76(4) (a) (ii)). The line of the outer limit of the continental shelf, drawn in 
accordance with paragraph 4(a) (i) and (ii) either may not exceed 350 miles from 
the baseline or not exceed 100 miles from the 2500 meter isobath (article 
76(5)). And, Article 76(6) states that the limit of the continental shelf on 
submarine ridges shall not exceed 350 miles from the territorial sea baseline. 

Although the United States has not yet determined the outer limit of its 
continental margin, it has recognized Article 76 as reflecting customary 
international law. On November 17, 1987, the Interagency Group on the 
Law of the Sea and Ocean Policy established the policy of the United States 
on delimitation of the outer limit of the U.S. continental shelf. The Inter- 
agency Group decision, reflected in a memorandum of November 17, 1987, 
provided "that the delimitation provisions of Article 76 of the 1982 United 



Continental Shelf 125 

Nations Convention on the Law of the Sea reflect customary international law 

and that the United States will use these rules when delimiting its continental 

1 o 
shelf and in evaluating the continental shelf claims of other countries.** 

Attached to that memorandum was the statement of policy, which reads: 

United States Policy Governing 
The Continental Shelf of the United States of America 

After reviewing the question of how to define and delimit the continental shelf 
of the United States and its island territories and overseas possessions, the 
Interagency Group on Ocean Policy and Law of the Sea has determined that the 
proper definition and means of delimitation in international law are reflected in 
Article 76 of the 1982 United Nations Convention on the Law of the Sea. The 
United States has exercised and shall continue to exercise jurisdiction over its 
continental shelf in accordance with and to the full extent permitted by interna- 
tional law as reflected in Article 76, paragraphs (1), (2) and (3). At such time in 
the future that it is determined desirable to delimit the outer limit of the 
continental shelf of the United States beyond two hundred nautical miles from 
the baseline from which the territorial sea is measured, such delimitation shall be 
carried out in accordance with paragraphs (4), (5), (6) and (7). 

No agency shall seek to delimit [the outer limit of the continental shelf] on 
behalf of the United States without first obtaining the concurrence of the 
Interagency Group for Ocean Policy and Law of the Sea. After delimitation is 
completed, the results of any such delimitation shall be reviewed by the Senior 
Interagency Group on Oceans Policy and Law of the Sea and transmitted to the 
President for review. If approved, the Department of State shall transmit charts 
depicting the delimitation and other relevant information to the Secretary-General 
of the United Nations and any other organizations as the Interagency Group shall 
determine to be desirable. 

Because of the need to ensure that United States' practice is consistent with 
international law, before the continental shelf is delimited, an agency planning 
any leasing or licensing activity on the continental shelf beyond 200 nautical miles 
from the baseline from which the territorial sea is measured, shall provide notice 
to the Department of State for transmittal to the Interagency Group with a brief 
description of the location and type of activity. An opportunity for consultation 
and comment among all interested agencies shall be provided through the 
Interagency Group. The Interagency Group shall have 45 days to comment on 
the proposed action. 

The United States shall continue to exercise its rights and duties pertaining to 
its continental shelf in accordance with international law. 

Delimitation of the continental shelf between the United States and a neigh- 
boring State with an opposite or adjacent coast shall be determined by the United 
States and the other State concerned in accordance with equitable principles. 



1 26 Excessive Maritime Claims 

Excessive Claims 

Since the mid-1970s, several countries have made general claims to the continental 
shelf that the United States believes exceed the provisions of the LOS Convention. 
For example, in 1976, the Government of Pakistan enacted a statute which purports 
to assert jurisdiction over the continental shelf ofPakistan in a manner which is contrary 
to international law. The United States Government protested as follows: 

The Government of the United States also wishes to refer to those provisions of 
the Territorial Waters and Maritime Zones Act, 1976 which purport to assert 
jurisdiction over the continental shelf ... in a manner which is contrary to 
international law, including, inter alia: a claim of authority to designate areas of 
the continental shelf . . . and to restrict navigation and certain other activities 
therein, and, a claim of authority to extend any law over, and to prescribe and 
enforce any regulation necessary to control the conduct of any person in, . . . the 
continental shelf. . . ofPakistan. The Government of the United States wishes to 
remind the Government ofPakistan that international law limits the jurisdiction 
which a coastal state may exercise in maritime areas. It is the view of the 
Government of the United States that the aforementioned claims made in the 
Territorial Waters and Maritime Zones Act, 1976 exceed such limits. 

The Government of the United States therefore protests the assertions of jurisdic- 
tion made by the Government ofPakistan in the Territorial Waters and Maritime 
Zones Act, 1976, in so far as such claims are not valid in international law, and 
reserves its rights and those of its nationals in this regard. 13 

The Department provided the following additional information to American 
Embassy Islamabad: 

As to the claims associated with the continental shelf. . ., we believe that if the 
Government of Pakistan has used the draft LOS treaty as its guide, it has not 
followed closely enough the treaty's specific provisions. The draft LOS treaty does 
not authorize a coastal State to exercise the type of jurisdiction claimed by the 
Government ofPakistan, such as the unlimited authority to designate areas within 
various maritime zones and to regulate to any extent considered necessary the use 
of such areas. And, if Government of Pakistan laws and regulations can be 
extended over claimed maritime zones without limitation, every human endeavor 
that might take place within hundreds of miles of the coast is being subjected to 
Government ofPakistan control. The Government ofPakistan cannot, in our 
opinion, cite any provision of the draft LOS treaty which authorizes it to claim 
such comprehensive authority over very broad ocean areas. 

The United States has protested similar legislation in the case of Guyana, 
India, Mauritius, and the Seychelles. 

At least two countries, Ecuador and Chile, have made specific continental 
shelf claims involving limits beyond 200 miles. In a 1985 Presidential Proc- 
lamation, the Government of Ecuador claimed the underseas Carnegie range 



Continental Shelf 127 

(Cordillera de Carnegie) as its continental shelf. This claim created a "bridge" 
between the 200-mile limits drawn from Ecuador's mainland and from the 
Galapagos Islands. A 100-mile continental shelf was claimed on either side of 
the 2,500 meter isobath along this ridge. Ecuador applied Article 75(6) of the 
LOS Convention which sets these maximum limits, but did so without first 
satisfying the physical criteria set forth in Article 76(4). (It is unlikely that Ecuador 
could satisfy the sedimentary rock thickness test since this cordillera is an oceanic 
ridge.) The United States Government protested this claim in 1986, in a note 
which included the following: 

refers to a proclamation of 19 September [1985] by President Febres Cordero on 
the continental shelf of Ecuador that states, i.e., that ". . . in addition to the 
continental and island shelves in Ecuador's 200 mile territorial sea, the seabed and 
subsoil between its continental territorial sea and the territorial sea around the 
archipelago De Colon [Galapagos Islands] for a distance of 100 miles from the 
isobath at a depth of 2,500 meters also form part of Ecuador's continental shelf." 

Customary international law on delimitation of the continental shelf as reflected 
in Article 76 of the Law of the Sea Convention provides that the continental shelf 
of a coastal State extends throughout the natural prolongation of its land territory 
to the edge of the continental margin, or to a distance of 200 nautical miles from 
the baselines from which the breadth of the territorial sea is measured where the 
outer edge of the continental margin does not extend up to that distance. Article 
76(4) further provides that when the outer edge of the continental margin does 
extend beyond the aforementioned 200 nautical mile distance the outer limit of 
the continental shelf either: (a) coincides with fixed points at each of which the 
thickness of sedimentary rocks is at least 1 percent of the shortest distance from 
such point to the foot of the continental slope; or (b) coincides with fixed points 
not more than 60 nautical miles from the foot of the continental slope. 

In its 19 September proclamation Ecuador has apparently relied on article 76(5) 
which provides: "the fixed points comprising the line of the outer limits of the 
continental shelf on the seabed, drawn in accordance with paragraph 4(a) (i) and 
(ii), either shall not exceed 350 nautical miles from the baselines from which the 
breadth of the territorial sea is measured or shall not exceed 100 nautical miles 
from the 2,500 meter isobath, which is a line connecting the depth of 2,500 
meters." 

Article 76(5) may, however, only be invoked if either of the conditions 
precedent in article 76(4) cited above are fulfilled. We believe these conditions 
cannot be invoked in support of the Ecuadorian position. Therefore, it is the view 
of the United States that part of Ecuador's continental shelf claim falling beyond 
the 200 mile exclusive economic zone off the coasts of the Galapagos Islands and 
mainland Ecuador are without legal foundation. For the above reason, the United 
States does not recognize that part of the Ecuadorian continental shelf claim which 
extends beyond 200 miles from the baselines properly drawn in accordance with 
LOS Convention articles 5 and 7, from which the territorial sea is measured. 



1 28 Excessive Maritime Claims 



In light of the foregoing, the United States reserves for itself and its nationals 
all rights in accordance with international law which are contravened by all the 
claims of Ecuador referred to above. 20 

Chile also has made a claim to the continental shelf that exceeds the provisions 
of the LOS Convention. In 1985, Chile claimed a continental shelf of 350 miles 
around its Pacific Ocean territories of Easter Island and Sala Y Gomez Island. 
Chile, however, failed to prove, under Article 76(4), that the continental shelf 
extends to 200 miles, much less to 350 miles. The United States protested the 
claim in May 1986, in a note that states in part: 

In its September 12, 1985 statement Chile has relied on article 76(6) of the 1982 
Law of the Sea Convention, which provides: "Notwithstanding the provisions of 
paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not 
exceed 350 nautical miles from the baselines from which the breadth of the 
territorial sea is measured. This paragraph does not apply to submarine elevations 
that are natural components of the continental margin, such as its plateaux, rises, 
caps, banks and spurs." 

Article 76(6) may, however, only be invoked if the conditions precedent in 
article 76(4) cited above are fulfilled. The Government of the United States does 
not believe that these conditions can be met in these cases. Therefore, it is the 
position of the United States that part of Chile's continental shelf claim falling 
beyond a 200 nautical mile limit is without legal foundation. For the above reason, 
the United States does not recognize that part of the Chilean continental shelf 
claim off Sala y Gomez and Easter Islands, which extends beyond 200 miles from 
the baselines from which the territorial sea is measured, properly drawn in 
accordance with international law. In light of the foregoing, the United States 
reserves for itself and its nationals all rights in accordance with international law 
which are contravened by all the claims of Chile referred to above. 22 

Notes 

1. OFFSHORE CONSULTANTS, INC., NAVIGATIONAL RESTRICTIONS WITHIN THE NEW LOS 
CONTEXT: GEOGRAPHICAL IMPLICATIONS FOR THE UNITED STATES 22-23 (L.M. Alexander, ed., 
Final Report under Defense Supply Service Contract 903-84-C-0276, Dec. 1986) [hereinafter ALEXANDER, 
NAVIGATIONAL RESTRICTIONS]. 

2. Presidential Proclamation No. 2667, Sept. 28, 1945, 3 C.F.R. 67 (1943-48 Comp.), 13 DEPT ST. 
BULL., Sept. 30, 1945, at 484-85, 4 WHITEMAN, DIGEST OF INTERNATIONAL LAW 752-64 (1965). 

3. 15 U.S.T. 471, T.I.A.S. No. 5578, 499 U.N.T.S. 311, entered in force June 10, 1964. 

4. Case Concerning Delimitation of the Maritime Boundary of the Gulf of Maine (Canada v. United States), 1984 
I.C.J. 246, 294; 2 RESTATEMENT (THIRD), FOREIGN RELATIONS LAW OF THE UNITED STATES, §515 
Cmt. a & Reporter's Note 1, at 66-69; SOHN & GUSTAFSON, THE LAW OF THE SEA 158 (1984). Contra, 
WALLACE, Introduction, 1 INTERNATIONAL BOUNDARY CASES: THE CONTINENTAL SHELF 38 
(1992). 

5. LOS Convention, article 78. 

6. U.S. statement in right of reply, Mar. 8, 1983, U.N. Doc. A/CONF.62/WS/37, 17 Official Records 
of the Third U.N. Conference on the Law of the Sea 244. 



Continental Shelf 129 

7. Cf LOS Convention, articles 33 and 303. 

8. Continental Shelf Convention, articles 1-3 & 5; LOS Convention, articles 60(7), 76-78 & 80-81. 

9. Commentary of the International Law Commission on draft articles 27 and 35 on the Law of the Sea, 
U.N. GAOR Supp. 9, U.N. Doc. A/3159, II Int'l L. Com. Y.B. 278 & 281 (1956). 

10. See supra n. 6. 

11. The France (New Caledonia)-Australia Continental Shelf Boundary Agreement of January 4, 1982 
divides the continental shelf beyond 200 miles east of Fraser Island. PRESCOTT, MARITIME AND POLITICAL 
BOUNDARIES OF THE WORLD 191. The Fourth Special Antarctic Treaty Consultative Meeting on Antarctic 
Mineral Resources agreed that the "geographic extent of the continental shelf referred to in Article 5(3) of 
the Convention [on the Regulation of Antarctic Mineral Resource Activities] would be determined by 
reference to all the criteria and the rules embodied in paragraphs 1 to 7 of Article 76 of the United Nations 
Convention on the Law of the Sea." Final Act 4, Wellingon, June 2, 1988, 27 I.L.M. 866 (1988). On the 
other hand, the Court of Arbitration for the delimitation of maritime areas between Canada and France 
considered it was not competent to effect a delimitation beyond 200 miles from St. Pierre and Miquelon, 
because the international community was not represented before the Court. Decision paras. 75-82, reprinted 
in 31 I.L.M. at 1171-73 (1992). 

12. Memorandum from Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth 
Verville, Nov. 17, 1987, State Department File No. P89 0140-0428. 

13. Diplomatic Note No. 694 dated June 8, 1982, from American Embassy Islamabad pursuant to 
instructions contained in State Department telegram 155385, June 7, 1982. American Embassy Islamabad 
telegram 09069, June 14, 1982. 

14. State Department telegram 155385, June 7, 1982. 

15. American Embassy Georgetown Diplomatic Note dated July 20, 1982, pursuant to instructions 
contained in State Department telegram 194561, July 14, 1982. American Embassy Georgetown telegram 
03242, July 23, 1982. 

16. American Embassy New Delhi Diplomatic Note delivered May 13 & 16, 1983, pursuant to 
instructions contained in State Department telegram 128220, May 9, 1983. American Embassy New Delhi 
telegram 09947, May 16, 1983. 

17. American Embassy Port Louis Diplomatic Note dated July 27, 1982, pursuant to instructions contained 
in State Department telegram 204808, July 23, 1982. American Embassy Port Louis telegram 02502, July 28, 
1982. 

18. American Embassy Victoria Diplomatic Note No. 37, dated July 8, 1982, pursuant to instructions 
contained in State Department telegram 156775, June 8, 1982. American Embassy Victoria telegram 01170, 
July 14, 1982. 

19. In 1985 Iceland adopted Regulation No. 196 of May 9, 1985, defining the borders of its continental 
shelf, in part a 350-mile distance line from Iceland and in part extending beyond 350 miles from Iceland a line 
60 miles beyond the foot of the continental slope, and saying explicitly that Article 76 of the LOS Convention 
had been used to define the boundaries where applicable. U.N. Legislation on the Continental Shelf at 127. 
On June 16, 1985, the United Kingdom protested this claim on the grounds that there was "no link of any 
kind between Iceland and the Hatton/Rockall plateau" and "the Icelandic Regulations have no basis in 
international law." 56 Brit. Y.B. Int'l L. 1985, at 493 & 494 (1986). 

20. Diplomatic Note delivered Feb. 24, 1986 by American Embassy Quito. State Department telegram 
033256, Feb. 3, 1986; American Embassy Quito telegram 01651, Feb. 25, 1986. France and the Federal 
Republic of Germany also have protested this claim by Ecuador. See Treves, Codification de Droit International 
et Pratique des Etats dans \e Droit de la Mer, 223 Recueil des Cours 98 (1 990-1 V, 1991). Ecuador's continental 
shelf proclamation may be found at U.N. Legislation on the Continental Shelf, at 82. See supra Chapter V n. 4 
for the U.S. protests of Ecuador's 200-mile territorial sea claim first made in 1966. 

21. Chile's September 12, 1985, claim may be found in U.N. Office for Ocean Affairs and the Law of 
the Sea, The Law of the Sea, National Legislation on the Continental Shelf, at 62 (U.N. Sales No. E.89.V.5, 
1989) [hereinafter U.N. Legislation on the Continental Shelf] . 

22. Diplomatic Note delivered May 20, 1986, by American Embassy Santiago. State Department telegram 
153793, May 15, 1986; American Embassy Santiago telegram 03167, May 22, 1986. In December 1986, 
France and the Federal Republic of Germany also protested the claim by Chile. See Treves, 223 Recueil des 
Cours 97 (1990-IV) (Germany). These Chilean and Ecuadoran claims and the U.S. protests are analyzed in 
Ramakrishna, Bowen & Archer, Outer Limits of Continental Shelf, Marine Policy, Jan. 1987, at 58-60. 



Archipelagos 131 



Chapter IX 
Archipelagos 



Archipelagic States 

The law of the sea first recognized a special regime for archipelagic States in 
the 1982 Law of the Sea Convention. By definition, an archipelagic State is a 
State "constituted wholly by one or more archipelagos and may include other 
islands." Article 46 of the LOS Convention defines an "archipelago" as a 

group of islands, including parts of islands, inter-connecting waters and other 
natural features which are so closely interrelated that such islands, waters and other 
natural features form an intrinsic geographical, economic and political entity, or 
which historically have been regarded as such. 2 

In a letter dated April 4, 1989, David H. Small, Assistant Legal Adviser for 
Oceans and International Environmental and Scientific Affairs, noted: 

Prior to the Third United Nations Conference on the Law of the Sea, 
international law did not permit archipelagic claims. Although the 1982 Law of 
the Sea Convention is not yet in force, the archipelagic provisions reflect 
customary international law and codify the only rules by which a nation can now 
rightfully assert an archipelagic claim. Recognition of Indonesia's archipelagic 
claim by the United States in 1986 and reaffirmed in 1988 was conditioned on 
Indonesia's commitment that its claim was then and would be in the future applied 
toward other States and their nationals in full conformity with international law. 

An exchange of notes accompanying the Tax Convention with Indonesia, 
set out and confirmed the agreed interpretation of Article 3(1) (a) of the Tax 
Convention, as follows: 

In signing this Convention, it is the understanding of the Government of the 
United States of America that: 

The United States recognizes the archipelagic States principles as applied by 
Indonesia on the understanding that they are applied in accordance with the 
provisions of Part IV of the 1982 United Nations Convention on the Law of the 
Sea and that Indonesia respects international rights and obligations pertaining to 
transit of the Indonesian archipelagic waters in accordance with international law 
and reflected in that Part. 

The confirmation of this understanding by the Government of the Republic 
of Indonesia will constitute the agreed interpretation of Article 3(1) (a) of the 
Convention. 



1 32 Excessive Maritime Claims 

Under Article 3(1) (a) of this Tax Convention, for the purposes of this 
Convention only, unless otherwise required by the context, the term 
"'Indonesia* comprises the territory of the Republic of Indonesia and the 
adjacent seas which [sic] the Republic of Indonesia has sovereignty, sovereign 
rights or jurisdictions in accordance with the provisions of the 1982 United 
Nations Convention on the Law of the Sea." (See Map 20.) 

As of July 1994, the following sixteen States have claimed archipelagic status: 

Antigua & Barbuda Kiribati 3 Sao Tome & 

The Bahamas (pending) 3 Marshall Islands 3 Principe 

Cape Verde Papua New Guinea Solomon Islands 

Comoros 3 Philippines Trinidad & Tobago 

Fiji Saint Vincent and Tuvalu 

Indonesia the Grenadines 3 Vanuatu 

Have not specified archipelagic baselines. 

Island-Mainland States 

Since an archipelago must consist wholly of islands, a continental State that 
has offshore groups of islands may not claim archipelagic status for those islands. 
Nevertheless, several continental States with offshore groups of islands which 
may be geographically described as archipelagos but which do not meet the 
juridical definition set out in Article 46 of the 1982 Law of the Sea Convention, 
have sought to enclose those islands with straight baselines in a manner simulating 
an archipelago. Following adoption of the Law of the Sea Convention, the 
United States protested the claims of Denmark, Ecuador, Portugal and 
Sudan. 

Baselines 

To define the archipelago, a State must draw archipelagic baselines meeting 
certain requirements specified in Article 47. For example, the length of the 
baselines may not exceed 100 miles, except that up to 3 percent of the total 
number of baselines may be drawn to a maximum length of 125 miles. The 
baselines are to be drawn in such a manner that the area of water to area of land 

Q 

ratio enclosed by the baselines must be between 1:1 and 9:1. A State claiming 
itself an archipelagic State must give due publicity to charts or lists of coordinates 
that define the archipelago and deposit such charts or lists with the UN. 

Fiji's archipelagic claim in its Maritime Spaces Act of 1977 & 1978, and 
associated Marine Spaces Orders, reveals that Fiji's claim meets the Convention's 
criteria for archipelagic baseline length and water-to-land ratio. The State 
Department has prepared a similar analysis of the archipelagic baselines con- 
structed by Sao Tome and Principe. At least one scholar has expressed the 



Archipelagos 1 33 



Map 20 







134 Excessive Maritime Claims 

view that the straight baselines claimed by Indonesia, Vanuatu and Papua 

New Guinea satisfy the requirements of Article 47. 

Cape Verde claimed archipelagic baselines in 1977, through legislation 
which created 14 basepoints, which when connected comprise the archipelagic 
baseline system. Two baseline segments exceed the permissible maximum 125 
mile length. The water area enclosed by the archipelagic baselines is 50,546 
sq.km.; the Cape Verde land area is 4,031 sq.km. The resulting watenland ratio 
is 12.54:1, which exceeds the maximum allowable 9:1 ratio. Because of these 
technical flaws in the law, the United States protested Cape Verde's claim in 
1 980. Both elements can be corrected with some modifications to the baselines 
{see Map 21). 16 

In 1961, the Government of the Philippines claimed the waters within the 
limits set out in Article III of the Treaty of Paris between the United States and 
Spain of December 10, 1898 as part of the territory of the Philippines (except 
the Spratlys). The longest segment measures 140 miles in the Gulf of Moro, but 
that segment could be adjusted without difficulty to reduce it to 125 miles. The 
land to water ratio is 1:1.8. The Philippines also claimed straight baselines 
connecting the outer points of its outer islands. (See Map 22.) The United States 
did not accept that claim in a 1961 note of which the following is an extract: 

. . . [I]ts purpose is to reduce to Philippine sovereignty large areas of sea which 
are regarded by the United States and all other nations as part of the High Seas. 
The Embassy, therefore, considers it necessary to point out that there is no 
recognition in international law of any special regime for archipelagoes, and no 
warrant for attempting to reduce to national sovereignty large areas of high seas 
between the islands of an archipelago, through the device of drawing baselines 
connecting the outermost islands and claiming as internal waters all of the waters 
within such baselines. 

Due to its complexity, the subject of archipelagoes was left pending at The 
Hague Conference of 1930, and by the International Law Commission in its 
studies which preceded the First Law of the Sea Conference in Geneva in 1958. 
Proposals dealing with the subject were introduced at the First Law of the Sea 
Conference, but were not pursued because it was felt that the subject needed 
further study. 

The Philippine Government is also aware that the United States Government 
does not share its view concerning the proper interpretation of the provisions of 
the Treaty of Peace of December 10, 1898, between the United States and Spain, 
and the Treaty of Washington of November 7, 1900, by which Spain ceded the 
islands of the Philippine archipelago to the United States. Moreover, neither of 
the Parties to the Convention of January 2, 1930, between the United States and 
the United Kingdom, defining the boundary between the Philippines and North 
Borneo agrees with the Philippine interpretation of the provisions of that 
Convention relied on as one of the bases for the proposed legislation. 



Map 21 



Archipelagos 1 35 



25" 



10 20 30 40 50 miles 

I i—H r 1 — i — H ' ' 

10 20 30 40 50 kilometers 



Santo© o0 ** 

Antao AfonV° 



24" 




Pto - do Co/hou — ■ • -«. 



Santa 



** /v^ ^r%' w - 

\ 



*«* 



Weenie, "'o ^ 

Branch 
iZazo 



\ 






Cape Verde: 
Claimed and Potential 
Archipelagic Baselines 

. Cape Verde claimed 

archipelagic baseline 

Alternate archipelagic baseline 

^_^_ Contiguous claimed and 

alternate archipelagic baseline 



* Nicolau 



-O/A 



*<b 



Atlantic 



Ocean 





"I Grande,, ., 



0rt °<orA 



Names and boundary representation are not necessorily authoritative 



136 Excessive Maritime Claims 



Map 22 



T-& 

CHINA 



3^ 



_20 - 



-18- 



.* 




A* ^fijHong K 
£*/>*■ Macau v ' 




124- 



■i>t. 



(PORT.) 



Philippines: 

Archipelago and 
Territorial Sea Claims 

Treaty Limits of 

the Philippines 
Straight baseline 



r 







126- 



~ I 



T5**-k 



22" - 



20' - 



18" 




Archipelagos 1 37 

On May 8, 1984, the Philippines deposited, with its instrument of ratification 
of the 1982 LOS Convention, a declaration reaffirming certain understandings 
regarding the Convention made in 1982 when the Philippines signed the 
Convention. The declaration read in part: 

1 . By signing the Convention the Government of the Republic of the Philippines 
shall not in any manner impair or prejudice the sovereign rights of the Republic 
of the Philippines under and arising from the Constitution of the Philippines; 

2. Such signing shall not in any manner affect the sovereign rights of the Republic 
of the Philippines as successor of the United States of America, under and arising 
out of the Treaty of Paris between Spain and the United States of America of 
December 10, 1898, and the Treaty of Washington between the United States of 
America and Great Britain of January 2, 1930; 



5. The Convention shall not be construed as amending in any manner any 
pertinent laws and Presidential Decrees or Proclamations of the Republic of the 
Philippines; the Government of the Republic of the Philippines maintains and 
reserves the right and authority to make any amendments to such laws, decrees 
or proclamations pursuant to the provisions of the Philippines Constitution; 



7. The concept of archipelagic waters is similar to the concept of internal waters 
under the Constitution of the Philippines and removes straits connecting these 
waters with the economic zone or high seas from the rights of foreign vessels to 
transit passage for international navigation. 

In January 1986, the United States protested this declaration, stating with 
regard to the first statement and statement number 5 that: 

The Government of the United States wishes to point out, however, that, with 
respect to other states and the nationals of such other states, the rights and duties 
of states are defined by international law, both customary and conventional. The 
rights of states under international law cannot be enlarged by their domestic 
legislation, absent acceptance of such enlargement by affected states. In this regard, 
the Government of the United States notes that the Constitution of the Philippines 
declares, "The waters around, between, and connecting the islands of the 
archipelago, irrespective of their breadth and dimensions, form part of the internal 
waters of the Philippines." The Government of the United States further notes 
that customary international law, as reflected in the 1982 Law of the Sea 
Convention, does not apply to such waters the regime of internal waters. 
Therefore, the Government of the United States renews its protests, made in 1961 
and 1969, of the claim by the Government of the Republic of the Philippines that 



138 Excessive Maritime Claims 

such waters constitute internal waters, and the Government of the United States 
reserves its rights and those of its nationals in this regard. 

With regard to the second understanding: 

the Government of the United States does not share its view concerning the proper 
interpretation of the provisions of those treaties, as they relate to the rights of the 
Philippines in the waters surrounding the Philippine Islands. The Government of 
the United States continues to be of the opinion that neither those treaties, nor 
subsequent practice, has conferred upon the United States, nor upon the Republic 
of the Philippines as successor to the United States, greater rights in the waters 
surrounding the Philippine Islands than are otherwise recognized in customary 
international law. 

With regard to understanding number 7: 

The Government of the United States wishes to observe that, as generally 
understood in international law, including that reflected in the 1982 Law of the 
Sea Convention, the concept of internal waters differs significantly from the 
concept of archipelagic waters. Archipelagic waters are only those enclosed by 
properly drawn archipelagic baselines and are subject to the regimes of innocent 
passage and archipelagic sea lanes passage. The Government of the United States 
further wishes to point out that straits linking the high seas or exclusive economic 
zone with archipelagic waters, as well as straits within archipelagic waters, are, if 
part of normal passage routes used for international navigation or overflight 

through or over archipelagic waters, subject to the regime of archipelagic sea lanes 

20 
passage. 

Notes 

1. LOS Convention, article 46. 

2. The concept of archipelagos is examined in detail in CHURCHILL & LOWE, THE LAW OF THE SEA 
98-1 1 1 (2d rev. ed. 1988); Herman, The Modem Concept of the Off-Lying Archipelago in International Law, Can. 
Y.B. Int'l L. 1985 at 172; 1 O'CONNELL, THE INTERNATIONAL LAW OF THE SEA, 236-258 (1982); 
RODGERS, MIDOCEAN ARCHIPELAGOS AND INTERNATIONAL LAW (1981); SYMMONS, THE 
MARITIME ZONES OF ISLANDS IN INTERNATIONAL LAW 68-81 (1979); DUBNER, THE LAW OF 
TERRITORIAL WATERS OF MID-OCEAN ARCHIPELAGOS AND ARCHIPELAGIC STATES (1976); and 
O'Connell, Mid-ocean Archipelagos, 45 Brit. Y.B. Int'l L. 1 (1971). The travaux preparatoires of the archipelagic 
articles of the LOS Convention may be found in U.N. Office for Ocean Affairs and the Law of the Sea, 
Archipelagic States: Legislative History of Part IV of the United Nations Convention on the Law of the Sea 
(U.N. Sales No. E.90.V.2 (1990)); and in a series of articles by the principal U.S. negotiators: Stevenson &r 
Oxman, The Preparations for the Law of the Sea Conference, 68 Am. J. Int'l L. 1, 12-13 (1974); id. The Third 
United Nations Conference on the Law of the Sea: The 1974 Caracas Session, 1, 21-22 (1975); id. The Third 
United Nations Conference on the Law of the Sea: The 1975 Geneva Session, 69 Am. J. Int'l L. 763, 784-85 
(1975); and Oxman, The Third United Nations Conference on the Law of the Sea: The 1977 New York Session, 72 
Am. J. Int'l L 57, 63-66 (1978). 

3. 83 Am. J. Int'l L. 559 (1989), State Department File No. P89 0049-0148. 

4. Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect 
to Taxes on Income, and Related Protocol and Exchange of Notes, July 11, 1988, United States-Indonesia, 
T.I.A.S. No. 11593, entered into force Dec. 30, 1990, quoted in 83 Am. J. Int'l L. 559-61 (1989), State 
Department File No. P89 0049-0148, and confirmed by Indonesia in the protocol of exchange of instruments 
of ratification, Nov. 30, 1990. Malaysia recognized Indonesia's claim to archipelagic status in the Treaty 



Archipelagos 1 39 

between Malaysia and the Republic oflndonesia relating to the Legal Regime of Archipelagic State and the 
Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace above the Territorial 
Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying between East and West 
Malaysia, Feb. 25, 1982, the text of which may be found in U.N. Law of the Sea: Practice of Archipelagic 
States 144, U.N. Sales No. E.92.V.3, (1992) [hereinafter U.N. LOS: Practice of Archipelagic States]. For 
reactions to Indonesia's initial archipelagic claim in 1957, see 4 WHITEMAN, DIGEST OF INTERNATIONAL 
LAW 284-85 (1965) [hereinafter WHITEMAN], and O'Connell, Mid-Ocean Archipelagoes in International Law, 
45 Brit. Y.B. Int'l L. 38-42, 62. 

5. See Antigua and Barbuda, U.N. Office for Ocean Affairs and the Law of the Sea, Baselines: National 
Legislation with Illustrative Maps (U.N. Sales No. E.89.V.10 (1989) at 13-15 [hereinafter U.N. Baselines: 
Legislation 13-15]; U.N. LOS: Practice of Archipelagic States 1-16; The Bahamas, legislation pending; Cape 
Verde, U.N. Baselines: Legislation 99-100; U.N. LOS: Practice of Archipelagic States 17-19; Comoros, 
Law No. 82-005, U.N. National Claims to Maritime Jurisdiction, U.N. Sales No. E.91.V.15 (1992), at 31; 
U.N. LOS: Practice of Archipelagic States 20-22; Fiji, U.N. Baselines: Legislation 157-61; Limits in the Seas 
No. 101 (1984); U.N. LOS: Practice of Archipelagic States 23-44; Indonesia, U.N. Baselines: Legislation 
187-93; Limits in the Seas No. 35 (1971); U.N. LOS: Practice of Archipelagic States 45-55; Kiribati, Maritime 
Zones (Declaration) Act, 1983; SMITH, EXCLUSIVE ECONOMIC ZONE CLAIMS 245 [hereinafter SMITH, 
EEZ CLAIMS]; U.N. LOS: Practice of Archipelagic States 56-60; Marshall Islands, Marine Zones 
Declaration Act, 1984, MCRM p. 2-284 (1990); Papua New Guinea, Offshore Seas Declaration 1978, 
SMITH, EEZ CLAIMS 363; U.N. LOS: Practice of Archipelagic States 68-74; Philippines, U.N. Baselines: 
Legislation 250-59; Limits in the Seas No. 33 (1971); U.N. LOS: Practice of Archipelagic States 75-85; Saint 
Vincent and the Grenadines, Maritime Areas Act, 1983, Smith, EEZ Claims 399; U.N. LOS: Practice of 
Archipelagic States 86-92; Sao Tome and Principe, U.N. Baselines: Legislation 271-73; Limits in the Seas 
No. 98; U.N. LOS: Practice of Archipelagic States 93-99; Solomon Islands, U.N. Baselines: Legislation 
277-280; U.N. LOS: Practice of Archipelagic States 100-108; Trinidad and Tobago, LOS Bull. No. 9; 
U.N. LOS: Practice of Archipelagic States 109-23; Tuvalu, Marine Zones (Declaration) Ordinance, 1983, 
U.N. LOS: Practice of Archipelagic States 124-30; Vanuatu, U.N. Baselines: Legislation 376-80; U.N. LOS: 
Practice of Archipelagic States 131-35. 

6. For details see supra Chapter IV, text accompanying nn. 51-54. 

7. LOS Convention, article 47(2). 

8. LOS Convention, article 47(1). 

9. LOS Convention, article 47(9). 

10. PRESCOTT, MARITIME AND POLITICAL BOUNDARIES OF THE WORLD 186 (1985). The Fiji 
documents may be found in Limits in the Seas No. 101, Fiji's Maritime Claims (1984). Fiji's Marine Spaces 
(Archipelagic Baselines and Exclusive Economic Zone) Order, 1981, may also be found in U.N. Law of the 
Sea: National Legislation on the Exclusive Economic Zone, the Economic Zone and the Exclusive Fishery 
Zone, U.N. Pub. E.85.V.10 (1986) at 96-100. 

11. Limits in the Seas No. 98. Accord, PRESCOTT, supra n. 10, at 318 (longest baseline measures 99 miles; 
water to land ratio is 3:1). 

12. PRESCOTT, supra n. 10, at 163. See supra n. 5. 

13. Id. at 185. 

14. Cape Verde's Decree Law No. 126/77, may be found in U.N. Baselines: Legislation 99 and SMITH, 
EEZ CLAIMS 96. 

15. State Department Note dated June 2, 1980, File No. P80 0073-0828. 

16. See PRESCOTT, supra n. 10, at 318. 

17. Id. at 211. 

18. American Embassy Manila Diplomatic Note no. 836 of May 18, 1961, State Department File No. 
796.022/5-2461. See also Limits in the Seas No. 33 (March 26, 1971) and 4 WHITEMAN 283, 286-87. The 
Philippine Act No. 3046 of June 17, 1961 defining the baselines of the territorial sea of the Philippines may 
be found in U.N., Legislative Series B/15, at 105; U.N., Baselines: Legislation 250; and Limits in the Seas 
No. 33. Article III of the Treaty of Peace, Paris, Dec. 10, 1898, 30 Stat. 1754, T.S. 343, 11 Bevans 616, reads 
in part "Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending 
the islands lying within the following line ..." (emphasis added); Article I of the Treaty between the United 
States and the United Kingdom concerning the Boundaries of the Philippines and North Borneo, Washington, 
Jan. 2, 1930, 47 Stat. 2198, T.S. 856, 12 Bevans 474, states in part "the line separating the islands belonging 
to the Philippine Archipelago on the one hand and the islands belonging to the State of North Borneo which 
is under British protection on the other hand shall be and is hereby established as follows ..." (emphasis added). 
By American Embassy Manila Note No. 169 of Mar. 10, 1969, the United States similarly protested Republic 
Act No. 5446, signed Sept. 18, 1968 amending Republic Act No. 3046 (which may be found in U.N., 
Baselines: Legislation 251-58). State Department File POL 33-4 PHIL. For other protests of the Philippines 
archipelagic claim, first made in 1955, see 4 WHITEMAN 286-87 and O'Connell, Mid-Ocean Archipelagos in 



140 Excessive Maritime Claims 

International Law, 45 Brit. Y.B. Int'l L. 25-38, 60-61. Prescott is of the view that it is "certain" that the 
Philippines has failed to win international approval for this historic claim. PRESCOTT, supra n. 10, at 230. 

19. The Philippines statement on signature of the LOS Convention may be found in U.N., Status of the 
United Nations Convention on the Law of the Sea 22 (1985). The Philippines declaration accompanying 
deposit of its instrument of ratification on May 8, 1984, may be found in id. at 37. 

20. American Embassy Manila Note delivered Jan. 29, 1986. State Department telegram 115912, Apr. 
17, 1985; American Embassy Manila telegram 03261, Jan. 29, 1986. 

Several other nations have also protested the Philippine declaration, including Australia, Bulgaria, Byelorussia, 
Czechoslovakia, the Ukraine and USSR. Thereafter, on October 26, 1988, the Secretary-General received 
from the Government of the Philippines a declaration concerning the Australian objection which reads in 
part: 

The Philippine Government intends to harmonize its domestic legislation with the provisions of 
the Convention. 

The necessary steps are being taken to enact legislation dealing with archipelagic sea lanes passage 
and the exercise of Philippine sovereign rights over archipelagic waters, in accordance with the 
Convention. 

The Philippine Government, therefore, wishes to assure the Australian Government and the States 
Parties to the Convention that the Philippines will abide by the provisions of said Convention. 

U.N., Status of the United Nations Convention on the Law of the Sea 41-43 (objections by Byelorussia and 
Czechoslovakia), 44-45 (objection by the USSR); U.N., Current Developments in State Practice No. II, at 
95-98 (objections from Australia and Bulgaria, and Philippine response); 12 Aust. Y.B. Int'l L. 383-85 (1992) 
(same); U.N. LOS BULL. Special Issue I: Status of the United Nations Convention on the Law of the Sea 
13-14 (Ukranian objection) (Mar. 1987). As of January 1994, the Philippines has not reformed its legislation. 

Subject to the provisions of Part IV of the LOS Convention, an archipelagic State may claim sovereignty 
over the waters, airspace, seabed and subsoil enclosed by the archipelagic baselines (Article 49). Within the 
archipelago, the State may claim internal waters, in accordance with articles 9 (mouths of rivers), 10 (bays) 
and 11 (ports). 



PART THREE 
NAVIGATION AND OVERFLIGHT RIGHTS 



In the Territorial Sea 1 43 



Chapter X 
In the Territorial Sea 



Right of Innocent Passage 

One of the fundamental tenets in the international law of the sea is that all 
ships of all States enjoy the right of innocent passage through the territorial sea 
of other States. The LOS Convention provides definitions for the meaning of 
"passage" (Article 18), and of "innocent passage" (Article 19), and lists those 
activities not innocent or "prejudicial to the peace, good order or security of 
the coastal State" (Article 19(2) a-1). 

The United States reaffirmed its position on innocent passage in Proclamation 
No. 5928, December 27, 1988 (by which the President extended the territorial 
sea of the United States for international purposes to 12 miles) which states in 
part: 

In accordance with international law, as reflected in the applicable provisions of 
the 1982 United Nations Convention on the Law of the Sea, within the territorial 
sea of the United States, the ships of all countries enjoy the right of innocent 
passage ... 

Since 1986, government officials from the United States and the Soviet Union 
(now Russia) have met periodically to discuss certain international legal aspects 
of traditional uses of the ocean, particularly navigation. On September 23, 1989, 
the United States and the Soviet Union issued a joint statement adopting a 
uniform interpretation of the rules of international law governing innocent 
passage through the territorial sea, which all governments were urged to accept 
(see Appendix 4 for the full text). Highlights of this joint statement include the 
following: 

• The LOS Convention is cited as containing the relevant rules of interna- 
tional law governing innocent passage of ships in the territorial sea. 

• All ships, including warships, regardless of cargo, armament or means of 
propulsion, enjoy the right of innocent passage, for which neither prior notifica- 
tion nor authorization is required. 

• The list set out in Article 19(2) of the LOS Convention is an exhaustive list 
of activities that would render passage not innocent. A ship not engaging in any 
of those listed activities is in innocent passage. 

• A coastal State which questions whether a ship is in innocent passage 
must give that ship an opportunity to clarify its intentions or correct its 
conduct. 



144 Excessive Maritime Claims 

• Ships exercising the right of innocent passage must abide by all laws and 
regulations of the coastal State adopted in conformity with international law as 
reflected in Articles 21, 22, 23, and 25 of the LOS Convention. 

• If a warship acts in an manner contrary to innocent passage, and does not correct 
its action upon request, the coastal State may require it to leave the territorial sea in 
accordance with Article 30. In such case the warship shall do so immediately. 

• Without prejudice to the exercise of rights of coastal and flag States, all 
differences regarding a particular case of innocent passage shall be resolved 
through diplomatic channels or other agreed means. 

Permissible Restrictions on Innocent Passage 

For purposes such as resource conservation, environmental protection, and 
navigational safety, a coastal State may establish certain restrictions upon the right 
of innocent passage of foreign vessels. Such restrictions must be reasonable and 
necessary, and not have the practical effect of denying or impairing the right of 
innocent passage. The restrictions must not discriminate in form or in fact against 
the ships of any State or those carrying cargoes to, from, or on behalf of any 
State. The coastal State may, where navigational safety dictates, require foreign 
ships exercising the right of innocent passage to utilize designated sea lanes and 
traffic separation schemes. Tankers, nuclear powered vessels, and ships carrying 
dangerous or noxious substances may be required, for safety reasons, to utilize 
designated sea lanes. 

Article 21 of the LOS Convention empowers a coastal State to adopt, with 
due publicity, laws and regulations relating to innocent passage through the 
territorial sea in respect of all or any of the following eight subject areas (which 
do not include security): 

1. The safety of navigation and the regulation of marine traffic (including 
traffic separation schemes). 

2. The protection of navigational aids and facilities and other facilities or 
installations. 

3. The protection of cables and pipelines. 

4. The conservation of living resources of the sea. 

5. The prevention of infringement of the fisheries regulations of the coastal 
State. 

6. The preservation of the environment of the coastal State and the 
prevention, reduction and control of pollution thereof. 

7. Marine scientific research and hydrographic surveys. 

8. The prevention of infringement of the customs, fiscal, immigration or 
sanitary regulations of the coastal State. 

This list is exhaustive and inclusive. Such laws and regulations shall not apply to 
the design, construction, manning or equipment of foreign ships unless they are 
giving effect to generally accepted international rules or standards. 



In the Territorial Sea 1 45 

The coastal State is required to give appropriate publicity to any dangers to 
navigation within its territorial sea of which it has knowledge. 

Temporary Suspension of Innocent Passage 

A coastal or island nation may suspend innocent passage temporarily in 
specified areas of its territorial sea, when essential for the protection of its security. 
Such a suspension must be preceded by a published notice to the international 
community and may not discriminate in form or in fact among foreign ships. 

International law does not define how large an area of territorial sea may 

be temporarily closed to innocent passage. Since the maximum permissible 

breadth of the territorial sea is 12 miles, any suspension of passage seaward of 

this limit would be contrary to international law. The law of the sea 

conventions do not explain the phrase "protection of its security" beyond 

the example of "weapons exercises" added in the 1982 LOS Convention. 

Further, the length of "temporarily" is not specified, but it clearly is not to 

be factually permanent. The prohibition against "discrimination in form or 

fact among foreign ships" refers to discrimination among flag nations, and in 

the view of the United States, includes direct and indirect discrimination on 

the basis of cargo or propulsion. This position is strengthened by the 

provisions in the LOS Convention explicitly dealing with nuclear-powered 

1 "y 
and nuclear-capable ships. 

In 1986, Sri Lanka issued a Notice to Mariners, which purported to require 

that, with certain exceptions, all vessels must obtain permission before entering 

Sri Lanka's territorial sea. The United States protested this action in a note which 

read, in part: 

The Government of the United States acknowledges the efforts of the 
Government of Sri Lanka to interdict maritime activities of armed anti- 
government groups. The United States Government recognizes the right of 
the Government of Sri Lanka under customary international law as reflected 
in article 25 of the 1982 Convention on the Law of the Sea to prevent passage 
which is not innocent and to suspend temporarily, in specified areas of its 
territorial sea, innocent passage of foreign ships if such suspension is essential 
to its security. However, the Notice to Mariners is not in accordance with the 
right of innocent passage because the suspension of innocent passage is overly 
broad and because the duration of the suspension is not indicated as being 
temporary. 13 

The Government of Sri Lanka replied in a diplomatic note which read, in 
part: 

The Notice to Mariners was issued as a measure essential for the protection of 
Sri Lanka's security, in the light of the prevailing security situation. It is a temporary 
measure and is not intended to be of a permanent nature. The Notice also contains 



146 Excessive Maritime Claims 

a comprehensive list of exempted categories to which it would not apply. These 
include vessels entering or leaving Sri Lanka ports, vessels navigating through the 
traffic separation zones offDondra, vessels engaged in Sri Lanka's coastal trade and 
vessels navigating in the Palk Strait with the permission of the Commander of the 
Sri Lanka Navy. [See Map 2.] 

The Notice therefore ensures that the right of innocent passage in routes used 
for international maritime traffic are not interfered with. The Ministry wishes to 
reiterate that the Notice to Mariners is consistent with international law as reflected 
in the 1982 UN Convention on the Law of the Sea. 14 

Excessive Restrictions on Innocent Passage 

A concern of many maritime states pertains to requirements placed by some 
coastal States on certain types of ships either prior to entering the territorial sea 
or during transit through these waters. The following analysis highlights the types 
of restrictions the United States finds excessive under international law. 

Time Limits for Passage; Prohibited Zones 

In 1985, Libya announced regulations which, in part, purported to limit the 
right of innocent passage of commercial vessels in the Libyan territorial sea to 
daylight hours only with prior notification and all ships were required to remain 
out of certain prohibited zones located within the Libyan territorial sea. The 
United States protested these claims in a note verbale to the Secretary-General of 
the United Nations: 

The Government of the United States notes, however, that [Libyan] regulations 
6 and 7 do not appear to be limited in their application to vessels intending to call 
at Libyan ports, but rather that they address themselves to vessels exercising the 
internationally recognized right of innocent passage. With regard to the said 
regulations 6 and 7, the Government of the United States makes the following 
observations: first, the right of innocent passage is one that under long-standing 
principles of international law may be exercised by all vessels, whether or not 
engaged in commercial service; second, international law does not permit a coastal 
state to limit innocent passage of vessels through its territorial sea to certain periods 
of time, such as daylight hours only; third, under long-standing principles of 
international law, the coastal State may not claim to condition the right of innocent 
passage upon prior notification to it. 

The United States further notes that regulation 10 of the said Notice to 
Mariners requires that vessels strictly comply with directives pertaining to the 
so-called prohibited zones specified in that regulation. In this regard, the United 
States observes that zones A, B and D [in the vicinity of Tripoli] are all areas within 
the territorial sea of Libya and therefore subject to innocent passage by vessels of 
all States. International law does not permit a coastal State to subject an area of its 
territorial sea to a permanent prohibition of navigation. . . . 15 [See Map 4.] 



In the Territorial Sea 1 47 

In 1981 , Finland prohibited innocent passage through fortified areas or other 
areas of the Finnish territorial sea declared to be of military importance, and 
prohibited the arrival of vessels in such areas except between sunrise and sunset. 
The United States protest stated that: 

the right of innocent passage through the territorial sea extends to the whole of the 
territorial sea except as it may be suspended temporarily when such suspension is 
essential for the protection of security of the coastal state and is duly published. This 
limited right to suspend innocent passage is recognized in customary international law 
as reflected in article 25 of the 1982 United Nations Convention on the Law of the 
Sea, as well as in the second paragraph of article 9 of aforesaid Finnish decree. 17 

The State Department provided the following information to the Embassy: 

The claim in the first paragraph of article 9, to deny any right of innocent passage 
through those portions of the Finnish territorial sea which are fortified areas or other 
areas declared by the Finnish Government to be of military importance, and in article 
21 to limit arrival of government vessels in such areas only to the time between sunrise 
and sunset, are without foundation in international law. The national security interests 
which these provision are apparently designed to protect would seem capable of 
adequate protection through the generally recognized provisions for temporary 
suspension of innocent passage set out in the second paragraph of article 9, and in 
article 16 for arrivals of vessels intending to enter Finnish internal waters. 

The United States is concerned that article 21, limiting arrival of government 
vessels in such areas between sunrise and sunset, could be applied in a manner to 
restrict further the innocent passage of vessels. The United States seeks the 
assurances of the Government of Finland that article 21 is not intended to impose 
restrictions on the right of all vessels to engage in innocent passage through such 
areas inconsistent with international law. 8 

Compulsory Pilotage for Sovereign Immune Vessels 

The United States also protested the Finnish requirement to use pilot service 
when navigating in Finnish territorial waters, by stating that: 

there is no authority in international law to require compulsory pilotage of vessels 
entitled to sovereign immunity engaged in innocent passage through the Finnish 
territorial sea, as is asserted by Article 10 of the aforementioned Finnish law. 

The following comment was provided to American Embassy Helsinki: 

While the United States has no objection to the Government of Finland 
offering pilotage services to United States warships and other government ships 
operated for non-commercial purposes and engaged in innocent passage through 
the territorial sea of Finland, the Government of the United States understands 
that, consistent with the immunities of those vessels, such services may be accepted 
or declined at the discretion of the flag state. 20 



148 Excessive Maritime Claims 

In response to an attempt in April 1985 by the Government ofltaly to require 
compulsory pilotage for ships over 5,000 tons carrying oil and other pollutants 
while transiting the Strait of Messina (see Map 28), the United States protested 
in a note dated April 5, 1985, in part as follows: 

. . . the Government of the United States must express its objection to the 
requirement, in the decree, that certain other vessels require pilots in order to 
exercise the right of innocent passage through the Strait of Messina. The 
Government of the United States notes that this requirement is inconsistent with 
the regime of non-suspendable innocent passage that applies in the Strait of 
Messina. Accordingly, the Government of the United States reserves its rights and 
those of its nationals, in this regard, as well. 

Additional information was provided to the U.S. Embassy: "The USG [United 
States Government] further considers the compulsory pilotage requirement to be 
inconsistent with the non-suspendable right of innocent passage enjoyed by vessels 
of all States in the Strait of Messina." 

Passage Limited to Sea Lanes 

In the 1981 Finnish decree discussed above, Finland also required that vessels 

n 
use "public" sea lanes when navigating that country's territorial waters. The 

following analysis was provided to the Embassy for use in presenting the United 

States protest of this requirement: 

Customary international law, as reflected in article 22 of the Law of the Sea 
Convention, permits a coastal state to establish sea lanes in its territorial sea 
where needed for the safety of navigation, after taking into account the 
recommendations of the competent international organization [i.e., the Inter- 
national Maritime Organization]; any channels customarily used for interna- 
tional navigation; the special characteristics of particular ships and channels; 
and the density of traffic. 

Articles 10 and 20 of the Finnish law do not specify the criteria to be used by 
Finland in specially regulating public sea lanes. 

Thus, the United States sought the assurances of the Government of Finland 

that it will follow these generally recognized provisions of international law in 

i"\ 
regulating any sea lanes in its territorial sea. 

A 1982 law of the former Soviet Union claimed that: 

Foreign warships and underwater vehicles shall enjoy the right of innocent passage 
through the territorial waters (territorial sea) of the USSR in accordance with the 
procedure to be established by the Council of Ministers of the USSR. 



In the Territorial Sea 1 49 

Then, in 1983, the Soviet government published rules for warship navigation 
in the Soviet territorial sea. In these rules, the Soviet Union acknowledged the 
right of innocent passage of foreign warships only in limited areas of the Soviet 
territorial sea in the Baltic, the Sea of Okhotsk, and in the Sea of Japan. 

In March 1986, two U.S. warships, USS Caron and USS Yorktown, exercised 
the right of innocent passage through the territorial sea of the Soviet Union in 
the Black Sea. The Soviet Union protested in two notes. The first, presented 
the same day to the Naval Attache of the American Embassy in Moscow, read 
as follows: 

On March 13, 1986, at 11 hours 11 minutes (Moscow time) the guided missile 
cruiser Yorktoum and destroyer Caron violated the state border of the USSR, 
entering Soviet territorial waters at 44-13. 5N 34-09.3E (south of the Crimean 
peninsula) and penetrated them up to 6 miles. 

Disregarding the repeated signals of warning from a Soviet ship about the 
violation, the American ships continued their illegal operation and not until 13 
hours 32 minutes at 44-19.0N 33-21. OE did they leave Soviet territorial waters. 

The command of the Soviet Navy calls the attention of the command of the 
US Navy to the repeated violations of Soviet territorial waters by US Navy ships, 
which may lead to serious consequences, and requests it to act urgently to take 
appropriate measures to observe the existing laws and regulations of the Soviet 
Union with respect to the regime of territorial waters. 26 

A similar note from the Soviet Ministry of Foreign Affairs, presented to the 
American Embassy in Moscow on March 17, 1986, added "This is not the first 
occasion when American naval vessels deliberately failed to observe provisions 
of the laws and regulations of the USSR relating to operating conditions within 
Soviet territorial waters." 

The United States responded to the latter note verbale as follows: 

The transit of the USS Yorktoum and USS Caron through the claimed Soviet 
territorial sea on March 13, 1986 was a proper exercise of the right of innocent 
passage, which international law, both customary and conventional, has long 
accorded ships of all states. The exercise of the right of innocent passage is in no 
way a violation of a country's territorial sea nor is it "provocative"; it is, rather, 
an essential part of the international law regime of the territorial sea. The right of 
ships of all states to engage in innocent passage without prior notification to, or 
permission of, the coastal state is firmly grounded in international law, including 
customary law reflected both in the 1958 Geneva Convention on the Territorial 
Sea and the Contiguous Zone and in the 1982 United Nations Convention on 
the Law of the Sea. The right of innocent passage may be exercised by all types 
of vessels, whether they are traversing the territorial sea in connection with a call 
at a port or traversing the territorial sea without making such a call. Therefore, it 
is meaningless for the Ministry's note to have alleged that there was "no basis" for 



150 Excessive Maritime Claims 

the entry by the two ships into Soviet claimed waters. Regardless of the unknown 
restrictions of Soviet law alluded to in the Ministry's note, the right of innocent 
passage is one guaranteed by international law and is not dependent on the 
legislation of the coastal state. 

Therefore, the United States rejects the protest of the Ministry of Foreign 
Affairs and reserves its rights and those of its nationals. 

The Department of State's instructions to American Embassy Moscow noted 
that the United States "would not want to lend any validity to a Soviet position 
that their domestic law was at all relevant in determining U.S. navigational rights 
under international law." 

Two years later, the same two U.S. warships were again involved in an 
incident in the Black Sea. On February 12, 1988, two Soviet vessels "bumped" 
the two U.S. Navy ships in the Soviet territorial sea (see Map 23). A number of 
press accounts, letters, and editorial articles misconstrued the law, the facts and 
the fundamental issues involved. In an unpublished article offered to several 
major newspapers, the United States stated in part: 

Since World War II, an increasing number of coastal states have asserted claims to 
control activities off their shores in ways contrary to traditional freedoms of the sea. 
Concern grew that a failure to exercise our navigational rights could progressively 
undermine these rights. Accordingly, President Carter in 1979 established a program 
to preserve our international legal rights and freedoms of navigation by having United 
States ships and aircraft exercise them periodically in areas 'where coastal states assert 
the ability to deny them. President Reagan has continued this program. 

The USS Yorktoum and the USS Caron were in the Soviet territorial sea as part 
of this program. At issue was not the breadth of the Soviet territorial sea, much 
less that of our own. . . . 

Our disagreement with the USSR involves Soviet efforts to limit, indeed virtually 
to abrogate, the right of innocent passage for warships through the Soviet territorial 
sea. According to Soviet legislation, foreign warships may exercise innocent passage 
in only five specified locations out of the thousands of miles of Soviet coastline. The 
Soviets made no provision for innocent passage in the Black Sea. 



The Soviet legislation at issue severely restricts innocent passage, contrary to 
international law. Nowhere does the 1982 Convention declare that innocent 
passage is a right limited to particular types of ships; the right applies to warships 
just as much as to merchant vessels. Nor does the Convention declare that innocent 
passage applies only in limited areas of the territorial seas — for example areas 
that are somehow judged to be normal or traditional sea lanes. On the contrary, 
the Convention declares that the laws of coastal states shall not "impose require- 
ments on foreign ships which have the practical effect of denying or impairing the 






In the Territorial Sea 1 51 



Map 23 



Soviet Bumping of U.S. Vessels 
in the Black Sea, 1988 

~~" "~~ USSR cloimed straight baselines 




Site of \i2 nautical mile 

bumping territorial sea limit 



Names and boundory representation are not necessoriy authoritative 



1 52 Excessive Maritime Claims 

right of innocent passage." For the USSR to prohibit warship passage in all but a 
few places is to do exactly that. 30 

The 1988 incident was followed by an exchange of notes between the two 
governments. The Soviet Ministry of Foreign Affairs protested in a note to the 
American Embassy in Moscow as follows: 

On 12 February 1988 the U.S. Navy vessels destroyer Caron at 1045 hours 
(Moscow time) and cruiser Yorktoum at 1103 hours (Moscow time) violated the 
USSR state border in the region of the southern coast of the Crimea at the point 
with the coordinates 44 degrees, 15.6 minutes north latitude, 33 degrees, 30 
minutes east longitude. The American vessels neither responded to the warning 
signals that were issued in advance by Soviet border vessels, nor undertook the 
recommended change of course. Having gone deeper into the territorial waters 
of the USSR for a significant distance, the American warships conducted dan- 
gerous maneuvers which led to a collision with Soviet warships. 

Despite this collision, the cruiser Yorktoum and destroyer Caron remained in 
USSR territorial waters and only departed at 1249 hours at the point with the 
coordinates 44 degrees, 12.5 minutes north latitude, 34 degrees, 05.5 minutes east 
longitude. 

Regarding with all seriousness the dangerous incident which has occurred, the 
Soviet side declares a strong protest in connection with the provocational and 
clearly intentional action of the American naval forces. 

The Soviet side cannot consider the activities of the USA Navy as other than 
directed at undermining the notable process of recent improvement of Soviet- 
American relations, and at charging international tension. 

The responsibility for this provocation, which led to the collision of warships 
of the two countries, lies fully and completely with the American side. 

The American side has already been warned about the impermissibility of 
violating USSR laws and regulations with regard to the regime of Soviet territorial 
waters and of the serious consequences to which such actions can lead. 

The Ministry demands that the Government of the USA undertake immediate 
measures that will exclude such incidents in the future. 31 

The United States responded: 

The United States rejects the protest of the Soviet Union. Moreover, the 
United States protests the actions of the Soviet Union in this matter as inconsistent 
with its international law obligation to respect the right of innocent passage and 
to ensure that its state vessels navigate in a manner that does not endanger other 
vessels. 



In the Territorial Sea 1 53 

The United States rejects the contention of the Soviet Union that the US Navy 
ships Yorktoum and Caron at any time violated the borders of the Soviet Union. 
Rather, at all times that the two vessels were within the territorial sea of the Soviet 
Union, they were exercising the right of innocent passage in complete confor- 
mance with relevant customary international law, including that reflected in the 
1982 United Nations Convention on the Law of the Sea. Under customary 
international law, including that reflected in the 1982 United Nations Convention 
on the Law of the Sea, ships of all states, including warships, have a right of 
innocent passage through the territorial seas of other states. 

The coastal state may not subject the exercise of the right of innocent passage 
to requirements of prior notification or authorization, nor may the coastal state 
purport to limit the innocent passage of certain ships or types of ships to areas of 
its territorial sea which it has designated as traditional routes or sea lanes. The 
United States reaffirms the right, under international law, for the US Navy ships 
Yorktoum and Caron to have engaged in innocent passage through the Soviet 
territorial sea at the place and time, and in the manner, in which they did. 

The Soviet Union is well aware, not only of the fact that international law 
guarantees all ships, including warships, the right of innocent passage, but also that the 
United States is committed to exercising its navigational rights and freedoms around 
the world. Such exercises of navigational rights and freedoms are not in any -way 
intended to be provocative; they are a necessary part of the process of preserving 
international law rights through consistent practice as well as diplomatic communica- 
tions. The Soviet Union has no reason to interpret this routine exercise of international 
law rights as intended to bear upon the current state of US-Soviet relations. 

Nevertheless, the United States notes with grave concern the actions of the 
Soviet vessels during this incident. After the Soviet warships improperly directed 
the US warship to depart the Soviet territorial sea, the US warships maintained 
course and speed and clearly informed the Soviet warships that they were engaged 
in innocent passage. Thereupon, the Soviet warships deliberately struck the US 
Navy warships, endangering both the vessels and their crews. The actions of the 
Soviet warships were utterly unjustified in international law and thoroughly 
incompatible with prudent seamanship. 

As a result of the unlawful and unseamanlike actions of the Soviet warships, 
both the US Navy warships suffered damage. The United States hereby informs 
it reserves the right to seek from the Soviet Union appropriate compensation for 
such damage. 

The United States vigorously protests both the illegal Soviet restrictions on 
innocent passage of warships in the Soviet territorial sea and the deliberate 
infliction of damage on US Navy warships exercising that right. The United States 
reserves its rights and those of its nationals in this regard. 32 

The issue of innocent passage of warships was resolved between the United 
States and the Soviet Union by the issuance on September 23, 1989, of a Joint 



1 54 Excessive Maritime Claims 

Statement with attached Uniform Interpretation of the Rules of Innocent 
Passage signed by Secretary Baker and Foreign Minister Schevardnadze. This 
understanding clearly reflects the right of wanhips to conduct innocent passage 
through the Soviet territorial sea. 

Prior Notice or Permission for Passage of Warships 

The content of the right of innocent passage of warships was much debated 
during the Third United Nations Conference on the Law of the Sea (UNCLOS 
III). That debate has been summarized as follows: 

Many delegations were engaged on both sides of this issue during the general 
debates. (The basic split, of course, was between the maritime powers and the 
coastal states and their supporters. The debates took place in Committee Two on 
several occasions, as well as in small groups chaired by Ambassador Aguilar, 
chairman of the Second Committee. While the opponents of innocent passage 
for warships appeared at times to outnumber the maritimes, they were in fact split 
among themselves. A final attempt was made by Ambassador Aguilar to achieve 
a negotiated solution during the final week of the substantive negotiations, without 
avail.) All the debates proved was that there was no middle ground between the 
antagonists. (At one point, the opponents of innocent passage for warships offered 
to settle for prior notification only, but this was seen by the maritimes as no 
different from requiring authorization.) For that reason, no accommodation of 
views was possible through the medium of negotiation. In the closing days of the 
Conference, Gabon offered a formal amendment to Article 21 to allow coastal 
states to require prior authorization or notification for passage of warships through 
the territorial sea. (U.N. Doc. A/CONF.62/L.97 (1982).) The proposal, of 
course, was tenaciously opposed by the maritime states, and, in the end, the 
amendment was withdrawn (partially in response to a plea by the Conference 
President for the withdrawal of all formal amendments to better enhance consen- 
sus) in favor of a proposal to add a reference to "security" to the provision in 
Article 21(l)(h), which gives coastal states the authority to enact laws regarding 
customs, fiscal, immigration, or sanitary laws. (U.N. Doc. A/CONF.62/L.1 17 
(1982).) To permit a coastal state to enact laws preventing infringement of security 
regulations would give such states extremely broad regulatory powers in the 
territorial sea — not necessarily limited even to warships. This proposal was even 
more strongly resisted. It therefore appeared imminent that the issue would go to 
a vote in the plenary. At the last minute, however, the sponsors of the proposal 
agreed to withdraw it in favor of a statement by the President of the Conference 
on the record, that its withdrawal was "without prejudice to the rights of coastal 
states to adopt measures to safeguard their security interests, in accordance with 
articles 19 and 25 of this Convention." (This statement was made by President 
T.T.B. Koh in plenary session on April 24, 1982. U.N. Doc. A/CONF.62/ 
SR.176 (1982).) Since those articles had already been accepted as governing the 
rights of coastal states, it cannot be said that the President's statement does more 
than restate the obvious. Accordingly, the traditional view of the maritime States 
that warships, like other ships, are entitled to a right of innocent passage in the 
territorial sea is still the law of the sea. 34 



In the Territorial Sea 1 55 

At noon, April 26, 1982, the Conference President Tommy Koh announced 
that the amendment offered by Gabon had been withdrawn; that evening 
he read the following statement: 

Although the sponsors of the amendment in document A/CONF.62/L.117 had 
proposed the amendment with a view to clarifying the text of the draft convention, 
in response to the President's appeal [to consider carefully and seriously what the 
consequences of their actions might be and to not press for their amendments to 
be put to the vote] they have agreed not to press it to a vote. They would, however, 
like to reaffirm that their decision is without prejudice to the rights of coastal States 
to adopt measures to safeguard their security interests, in accordance with articles 
19 and 25 of the draft convention. 37 

Following the Conference President's statement from the chair, a number of 
speakers continued to insist on the right to restrict the innocent passage of 
warships: Albania ("the right of innocent passage did not apply to war- 
ships. . . . The warships of a State had no right to pass through the territorial sea 
of another State without prior consent of the latter"); Benin ("there was no 
such thing as innocent passage of warships"); China ("the right of the coastal 
State to require prior authorization or notification for the passage of foreign 
warships through the territorial sea in accordance with its laws and regula- 
tions"); Iran ("in the light of customary international law, provisions of Article 
21, read in conjunction with Article 19, on the meaning of innocent passage, 
and Article 25, on the rights of protection of coastal States, recognize, though 
implicitly, the rights of coastal States to take measures to safeguard their security 
interests, including the adoption of laws and regulations regarding, inter alia, the 
requirement of prior authorization for warships willing to exercise the right of 
innocent passage through the territorial sea"); Malta (the Convention "recog- 
nizes the right of coastal States to adopt measures to safeguard their security, 
including the requirement of prior authorization or notice for the innocent 
passage of warships through territorial waters"); North Korea ("reaffirms the 
right of coastal States to adopt measures to safeguard their security interests, 
including the right to require prior notification or consent in regard to passage 

A 'X 

of foreign warships through their territorial sea"); and Pakistan ("coastal States 
could demand prior notification or authorization for the innocent passage of 
warships through their territorial waters"). 

During the debate on the amendments, a number of other speakers insisted 
that all ships, including warships, enjoyed the right of innocent passage without 
prior notification or authorization: e.g., France ("any amendment to article 21 
would create a serious obstacle to participation in the convention by maritime 
Powers such as France and the United States"); and Thailand ("current 
opinion appeared to favour freedom of navigation and the right of innocent 
passage by vessels of all kinds even through territorial waters, since that was vital 



1 56 Excessive Maritime Claims 

to the national security of all countries, including Thailand"). Other States 
spoke to the same effect after the Conference President read his statement, 
including the United Kingdom ("Many of the Convention's provisions are a 
restatement or codification of existing conventional and customary international 
law and State practice. Within this category are the articles concerning the right 
of innocent passage through the territorial sea, which is not subject to prior 
notification or authorization by the coastal State") . Other States exercised their 
right of reply to the same effect, including the Federal Republic of Ger- 
many and France. On signature to the Convention, Italy stated: 

None of the provisions of the Convention, which corresponds on this matter to 
customary International Law, can be regarded as entitling the Coastal State to 
make innocent passage of particular categories of foreign ships dependent on prior 
consent or notification. 50 

Shortly before the concluding session of the Conference in Montego Bay, 
Jamaica, during an address to the Duke Symposium on the Law of the Sea on 
October 30, 1982, Ambassador Koh stated: 

I think the Convention is quite clear on this point. Warships do, like other ships, 
have a right of innocent passage through the territorial sea, and there is no need 
for warships to acquire the prior consent or even notification of the coastal State. 

In response to the statements made during December 1982 plenary meetings 
of UNCLOS III, on March 8, 1983, the United States exercised its right of 
reply, which in regard to innocent passage in the territorial sea stated: 

Some speakers spoke to the right of innocent passage in the territorial sea and 
asserted that a coastal State may require prior notification or authorization before 
warships or other governmental ships on non-commercial service may enter the 
territorial sea. Such assertions are contrary to the clear import of the Convention's 
provisions on innocent passage. Those provisions, which reflect long-standing 
international law, are clear in denying coastal State competence to impose such 
restrictions. During the eleventh session of the Conference formal amendments 
which would have afforded such competence were withdrawn. The withdrawal 
was accompanied by a statement read from the Chair, and that statement clearly 
placed coastal State security interests within the context of articles 19 and 25. 
Neither of those articles permits the imposition of notification or authorization 
requirements on foreign ships exercising the right of innocent passage. 2 

The Uniform Interpretation of the Rules of Innocent Passage attached to the 
Joint Statement signed by U.S. Secretary of State Baker and Soviet Foreign 
Minister Shevardnadze provides, in part, that "[a]ll ships, including warships, 
regardless of cargo, armament or means of propulsion, enjoy the right of innocent 



In the Territorial Sea 1 57 

passage through the territorial sea in accordance with international law, for which 
neither prior notification nor authorization is required." 

Table 10, below, provides a listing of those States which have promulgated 
claims that restrict the innocent passage of warships. The United States has 
protested the claims of various of these States to require prior notice or 
authorization for innocent passage of warships. For example in a 1984 aide 
memoire to the Government of Sweden, the United States said: 

The United States similarly considers the 1982 Law of the Sea Convention to 
be reflective of existing maritime law and practice with regard to the regime of 
innocent passage within the territorial sea. The Convention clearly recognizes the 
right of vessels of all States to engage in innocent passage through the territorial 
seas of other States. International law as reflected in the 1982 Law of the Sea 
Convention permits no distinction, for these purposes, between vessels on 
commercial service and warships or other governmental vessels on non-commer- 
cial service, except as specifically contained in the Convention. Neither does 
international law permit a coastal State to condition another State's exercise of 
that right on prior notification to the coastal State. 

The 1958 Convention on the Territorial Sea and the Contiguous Zone 
contains no provision explicitly or implicitly recognizing a right of a coastal State 
to condition innocent passage on prior notification. On this point, the meaning 
of the Convention is neither ambiguous nor obscure. 

Although international maritime law and practice has continued to develop 
since the First United Nations Conference on the Law of the Sea, on that issue, 
international law has remained the same. Recent developments in international 
maritime law and practice give juridical support to Sweden's post-1958 extensions 
of maritime jurisdiction, both in the territorial sea and in the 200 nautical mile 
fisheries zone. The practice of a vast number of States, both coastal and maritime, 
amply supports the proposition that coastal States may claim territorial seas of up 
to twelve nautical miles and economic zones of up to 200 nautical miles, provided 
that they recognize the rights and freedoms of other States in those waters. By 
contrast, the requirement of prior notification as a condition to warship innocent 
passage has no such broad base in contemporary practice. 

The 1982 Law of the Sea Convention reflects this contrast. Whereas the 
concepts of a twelve-nautical-mile territorial sea and of a 200-nautical mile 
exclusive economic zone both commanded consensus acceptance in the Conven- 
tion text, the conditioning of innocent passage on prior notification clearly did 
not. It may be noted that the 1982 Convention reflects, in its provisions relating 
to navigation and other traditional uses of the oceans, worldwide, rather than 
regional, maritime law and practice. As a matter of customary international law 
as reflected in the Convention, a coastal State's rights are neither increased nor 
diminished by virtue of practices peculiar to its region of the globe. 

In stating this position, and in exercising its right of warship innocent passage 
in accordance with international law, the United States implies no disregard for 



1 58 Excessive Maritime Claims 

the sovereignty of Sweden or for its rights in the territorial sea. Innocent passage 
of any vessel, including a warship, is the continuous and expeditious transit of such 
a vessel in a manner not prejudicial to the peace, good order or security of the 
coastal State. United States warships engaged in innocent passage adhere strictly 
to the requirements of international maritime law and practice regarding the 
modalities of innocent passage. Thus, for example, submarines must navigate on 
the surface and fly their national flags. Ships may neither launch nor recover 
aircraft, and there may be no exercise or practice with weapons. The passage of 
United States warships under such conditions poses no threat to the security of 
the coastal State and constitutes no violation of its territorial sovereignty. 54 

Protests have also been submitted to other States purporting to require prior 
notice, including Egypt, Finland, Guyana, India, Libya, Malta, 
Mauritius, Seychelles, People's Democratic Republic of Yemen, 6 
and the former Yugoslavia. 

The United States has similarly protested the claims of other States to require 
prior permission before warships may engage in innocent passage: Albania, 
Algeria, Antigua & Barbuda, Bangladesh, Barbados, Bulgaria, 

71 70 T\ 1 A. 

Burma, Cape Verde, China, Congo, German Democratic 
Republic, 75 Grenada, 76 Iran, 77 Maldives, 78 Oman, 79 Pakistan, 80 Philip- 
pines, Poland, Romania, Somalia, Sri Lanka, Sudan, Syria, 
Vietnam, and the Yemen Arab Republic. 

Table 10 
Restrictions on Warship Innocent Passage 



State 

Albania 

Algeria 

Antigua & Barbuda 

Bangladesh 

Barbados 

Brazil 

Bulgaria 

Burma 

Cambodia 

Cape Verde 

China (PRC) 

Congo 

Denmark 

Egypt 

Finland 

Grenada 

Guyana 

India 

Indonesia 

Iran 



Restriction, Year of Claim 

Special permission; 1946 
Prior permission; 1963 
Prior permission; 1982 
Prior permission; 1974 
Prior permission; 1979 
Prior permission; 1954 
Limited to sea lanes; 1987 
Prior permission; 1977 
Prior permission; 1982 
Prior permission; 1982 
Prior permission; 1958, 1992 
Prior permission; 1977 
Prior permission; 1976 
Prior notification; 1983 
Prior notification; 1981 
Prior permission; 1978 
Prior notification; 1977 
Prior notification; 1976 
Prior notice; 1962 
Prior permission; 1982, 1993 



U.S. Assertion 

U.S. of Right of 

Protest Innocent Passage 

1989 1985 a 

1964* 1979 a 

1987 1987 

1982 

1982 1982 a 



1982 1985' 





1986 


1989 


1991 


1992 


1986 


1987 




1991 




1985 


1993 


1989 




1982 a 


1988 


1982 


1988 



1976 



1987 



1985 



1989' 



In the Territorial Sea 1 59 



Table 10 (Cont.) 



U.S. Assertion 







U.S. 


of Right of 


State 


Restriction, Year of Claim 


Protest 


Innocent Passage 


Korea, South 


Prior notification; 1978 


1977 




Libya 


Prior notice; 1985 


1985 




Maldives 


Prior permission; 1976 


1982 


1981 a 


Malta 


Prior notification; 1981 


1981 a 




Mauritius 


Prior notification; 1977 


1982 




Oman 


Prior permission; 1989 


1991 


1991 a 


Pakistan 


Prior permission; 1976 


1982 


1986 a 


Philippines 


Prior permission; 1968 


1969 


1994 


Poland 


Prior permission; 1968 


1989 




Romania 


Prior permission; 1956 


1989 


1985 a 


St. Vincent & the 








Grenadines 


Prior permission; 1983 






Seychelles 


Prior notification; 1977 


1982 




Somalia 


Prior permission; 1972 


1982 


1979 a 


Sri Lanka 


Prior permission; 1977 


1986 


1985 a 


Sudan 


Prior permission; 1970 


1989 


1979 a 


Sweden 


Prior notification; 1966 


1984 a 


1991 a 


Syria 


Prior permission; 1963 


1989 


1984 a 


Vietnam 


Prior permission; 1980 


1982 


1982 a 


Yemen 


Prior permission (PDRY); 1967 


1982 


1982 a 




Prior notification (YAR); 1978 


1986 


1979 a 


Yugoslavia, Former 


Prior notification; 1965 


1986 a 


1990 



Multiple protests or assertions 
Source: U.S. Department of State, Office of Ocean Affairs. 

Enforcement of Violations 

In 1981, the United States expressed its concerns to Malta regarding a portion 
of a Maltese law which claimed the right to impose imprisonment, as well as 
fines, for violations of regulations issued to control and regulate the passage of 
ships through the "territorial waters of Malta", without also recognizing the duty 
of the coastal State not to impede the innocent passage of foreign ships through 
its territorial sea. The State Department's note read, in part, as follows: 



. . . refers to Act XXVIII of 1981, approved July 24 by the Parliament of Malta, 
which amends the Territorial Waters and Contiguous Zone Act of 1971. Section 
3 of the Act adds a new Section 5 to the Territorial Waters and Contiguous Zone 
Act. Section 5 provides that the Prime Minister of Malta may make and enforce 
regulations to control the passage of ships through the territorial sea of Malta. The 
regulations may relate to the arrest, detention and seizure of ships "and such other 
power as may be necessary" to ensure compliance with "any law, rule, regulation 
or order" and the imposition of punishments, including imprisonment, for the 
violation of any regulation issued under the Section. 



160 Excessive Maritime Claims 



The United States Government also wishes to express its concern that Section 5 
of the Territorial Waters and Contiguous Zone Act makes no reference to the 
internationally recognized right of innocent passage. Pursuant to Articles 14 and 
15 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, the 
Government of Malta is obligated to recognize that all ships of all States enjoy the 
right of innocent passage through the territorial sea and is prohibited from 
impeding innocent passage. The United States Government "wishes to express its 
expectation that the Government of Malta will apply Section 5 in a manner 
consistent with its obligation not to impede innocent passage. 

Limitation on Number of Warships 

A few states have claimed the right to limit the number of warships that may 
be present at any one time in their territorial sea. The United States has protested 
these unlawful restrictions on the right of innocent passage by Denmark, 
Vietnam and by the former Yugoslavia. 

Nuclear Powered Warships 

While nuclear powered warships and conventionally powered warships enjoy 
identical international legal status, several states require nuclear powered 
warships to give prior notice to, or obtain prior permission of the coastal State 
before exercising the right of innocent passage through the territorial sea. The 
United States has protested these claims. 

In 1977, the People's Democratic Republic of Yemen (Aden) enacted 
a domestic statute which claimed that "foreign nuclear-powered ships or ships 
carrying nuclear substances or any other radio-active substances or materials shall 
give the competent authorities in the Republic prior notification of their entry 
into and passage through the territorial sea." The United States protested, 
stating: 

that the internationally recognized legal right of innocent passage through the 
territorial sea may be exercised by all ships, regardless of type of cargo, and may 
not in any case be subjected to a requirement of obtaining prior authorization 
from or giving notice to the coastal State. . . . 

Similar legislation by Pakistan provided that: "foreign super-tankers, nu- 
clear-powered ships and ships carrying nuclear or other inherently dangerous or 
noxious substances or materials may enter or pass through the territorial waters 
after giving prior notice to the Federal Government." This requirement was 

97 

protested by the United States on June 8, 1982. 

Djibouti's 1979 claim that "foreign vessels with nuclear propulsion or 
transportation of nuclear materials or other radioactive substances must inform 



In the Territorial Sea 1 61 

Djibouti beforehand about entering and crossing of Djibouti territorial waters" 
was protested by the United States on May 22, 1989. 

When it signed the 1982 Law of the Sea Convention in December 1982, the 
Yemen Arab Republic (which merged with Yemen- Aden on May 22, 1990), 
made an accompanying declaration which stated in part that "nuclear powered 
craft, as well as warships and warplanes in general, must obtain the prior 
agreement of the Yemen Arab Republic before passing through its territorial 
waters, in accordance with the established norms of general international law 
relating to national sovereignty." The United States Government, in a note dated 
October 6, 1986, protested as follows: 

The United States considers the statement to be without legal foundation because 
it attempts to subject the passage of foreign warships as well as nuclear powered 
ships to the requirements of prior authorization in order to transit the Yemeni 
territorial sea. The 1982 Law of the Sea Convention, which represents customary 
international law in this regard, permits no such restriction. Indeed, it provides in 
article 19 a comprehensive list of activities which shall be considered to be 
inconsistent with the exercise of the right of innocent passage. This exhaustive list 
of proscribed activities does not expressly or implicitly permit the exercise of that 
right to be preconditioned upon prior authorization or even notification. Further, 
it cannot legally be maintained that the lack of authorization or notification has 
any bearing on passage within the meaning of Convention article 1 9 (2) (1) . Nor is 
the competency claimed by the Government of the Yemen Arab Republic 
justified under article 21(1). 

The United States wishes to point out that there is no justification whatever 
for distinguishing, for these purposes, between warships or nuclear-powered ships 
and other ships, as the statement of the Government of the Yemen Arab Republic 
seeks to do. Convention articles 17-32, concerning innocent passage, apply to all 
ships, and they do not in any way distinguish between warships or nuclear- 
powered ships and other ships with respect to prior notification or permission as 
a condition of innocent passage. 



For the above reasons, the United States cannot accept the claim of authority 
by the Government of the Yemen Arab Republic to condition the exercise of the 
right of innocent passage by warships or nuclear-powered ships . . . upon prior 
authorization. Accordingly the United States reserves its rights and those of its 
nationals in this regard. 

The United States protested a similar declaration made by the Government 
of Egypt upon deposit of its instrument of ratification of the 1982 LOS 
Convention on August 26, 1983, by diplomatic note delivered February 26, 
1985, by the American Embassy at Cairo. 

The Egyptian declaration reads: 



162 Excessive Maritime Claims 

Pursuant to the provisions of the Convention relating to the right of the coastal 
State to regulate the passage of ships through its territorial sea, and whereas the 
passage of foreign nuclear-powered ships and ships carrying nuclear or other 
inherently dangerous and noxious substances poses a number of hazards, 

Whereas article 23 of the Convention stipulated that the ships in question shall, 
when exercising the right of innocent passage through the territorial sea, carry 
documents and observe special precautionary measures established for such ships 
by international agreements, 

The Government of the Arab Republic of Egypt declares that it will require 
the aforementioned ships to obtain authorization before entering the territorial 
sea of Egypt, until such international agreements are concluded and Egypt 
becomes a party to them. 

One talking point provided by the Department of State to the U.S. Embassy 
for use in conjunction with delivery of the note said: 

In consonance with prior law and practice, the Law of the Sea Convention 
provides that all ships enjoy the right of innocent passage in the territorial sea. 
Neither warships nor any other type of ship, regardless of means of propulsion or 
materials carried may be required to give notice to, or obtain the permission of, 
the coastal State before exercising this right. 100 

In depositing its instrument of ratification of the LOS Convention on August 
17, 1989, Oman "guaranteed" to foreign nuclear-powered ships and ships 
carrying nuclear or other substances that are inherently dangerous or harmful 
to health or the environment, whether or not warships, the right of innocent 
passage "subject to prior permission". On August 13, 1991, the United States 
protested this requirement. 

The 1989 U.S.-U.S.S.R. Uniform Interpretation of the Rules of Interna- 
tional Law Governing Innocent Passage states in part: "[a]ll ships, including 
warships, regardless of cargo, armament or means of propulsion, enjoy the 
right of innocent passage through the territorial sea in accordance with 
international law, for which neither prior notification nor authorization is 

i ,,102 
required. 

Claims Rolled Back 

The Soviet Union modified its legislation on September 20, 1989. The 
Bulgarian requirement for prior permission was replaced in its July 8, 1987 Act, 
with a limitation of innocent passage to designated sea lanes. 

In response to the promulgation by Turkey on February 20, 1979, of Decree 
7/17114, requiring foreign warships to provide prior notice before transiting the 
Turkish territorial sea, the United States protested in part as follows: 



In the Territorial Sea 1 63 

The Government of the United States recognizes the right of a State 
consistent with international law to establish requirements for notification and 
other conditions of entry for visits to its ports as well as the specific rights of 
notification of transit of the Turkish Straits accorded to Turkey by the 
Montreux Convention. 

The Government of the United States notes with concern, however, that the 
regulations purport to extend the requirements of the Montreux Convention and 
port visit conditions to establish similar conditions and requirements for notifica- 
tion and other limitations of transit of the Turkish territorial sea outside the straits. 
This is contrary to international law, as reflected in international practice and 
codified in the 1958 Convention on the Territorial Sea and Contiguous Zone. 
Specifically, these regulations constitute a restraint on the right of innocent passage 
through the territorial sea which exists for all ships, whether military or commer- 
cial, regardless of their characteristics. 

Consequently, the Government of the United States does not recognize the 
validity or effectiveness of the regulations in question to the extent that provisions 
thereof are inconsistent with accepted principles of international law, and reserves 
its rights and those of its vessels and nationals with regard to such provisions in 
the regulations. 104 

On May 2, 1985, the Counselor at the Turkish Embassy in Washington 
informed the Department's Geographer that: 

the provision of the Decree 7/17114 which states that the foreign warships must 
provide notice prior to transiting territorial sea, has been cancelled by the Directive 
dated November 24, 1983, No. 83/7467. [From] then on foreign warships 
transiting territorial seas of Turkey are subject to the general provisions of the 
International Law. 105 

Hazardous Waste 

In 1988, Haiti prohibited the entry into its territorial waters and exclusive 
economic zone, as well as into its ports, of "any vessel transporting wastes, refuse, 
residues or any other materials likely to endanger the health of the country's 
population and to pollute the marine, air and land environment." The United 
States protested this action in a 1989 note which recalled "that customary 
international law, as reflected in the 1982 United Nations Convention on the 
Law of the Sea, does not recognize the right of a coastal State to prohibit the 
passage of ships transporting hazardous waste through a coastal State's territorial 
sea or exclusive economic zone without intending to enter the internal waters 
or ports of the coastal State." 

The 1989 Basel Convention on the Control of Transboundary Move- 

1 0R 

ments of Hazardous Wastes and Their Disposal, establishes a notice 
and consent system in which any export, including any export by ship, of 
hazardous waste requires the prior approval of, inter alia, any "transit state." That 



1 64 Excessive Maritime Claims 

term is defined in article 2(12) of the Basel Convention, as any State "through 
which" wastes are transported on their way from an exporting State for disposal 
in another State. As noted in the Secretary of State's letter of submittal, "the 
United States has consistently maintained that, under international law, notifica- 
tion to or authorization of coastal states is not required for passage through 

1 0Q _ 

territorial seas . . ." This is reflected in Article 4(12) of the Basel Convention, 
which provides that the Convention does not affect "the exercise by ships and 
aircraft of all States of navigational rights and freedoms as provided for in 
international law and as reflected in relevant international instruments." How- 
ever, Article 4(12) also provides that nothing in the Basel Convention "shall 
affect in any way the sovereignty of States over their territorial sea established in 
accordance with international law ..." 

This compromise formula prompted Portugal to declare that it required the 
notification of all transboundary movements of such wastes across its waters, and 
several Latin American countries, including Columbia, Ecuador, Mexico, 
Uruguay and Venezuela, to declare that, under the Basel Convention, their 
rights as coastal States were adequately protected. Germany, Italy, Japan and the 
United Kingdom on the other hand, declared that nothing in the Convention 
requires any notice to, or consent of, the coastal State for vessels exercising the 
right of innocent passage. 

In granting its advice and consent to ratification of the Basel Convention, the 
U.S. Senate stated the understanding of the United States of America that "a 
State is a 'transit State' within the meaning of the convention only if wastes are 
moved, or are planned to be moved, through its inland waterways, inland waters, 
or land territory." 111 

Notes 

1. It is unclear whether Judge Oda, dissenting in El Salvador v. Honduras, 1992 I.CJ. Rep. 745, para. 
23, in writing that the right of innocent passage is "granted to foreign commercial vessels in the territorial 
sea," would extend that right to warships. 

2. The I.C.J, stated that Article 18(l)(b) "does no more than codify customary international law". 
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits, Judgment, 
1986 I.C.J. Rep. 14, at 111 para 214. 

3. Presidential Proclamation No. 5928, Dec. 27, 1988, 54 Fed. Reg. 777 Qanuary 9, 1989); 24 Weekly 
Comp. Pres. Doc. 1661 (Jan. 2, 1989), Appendix 3. 

4. DEPT ST. BULL., Nov. 1989, at 26; 28 I.L.M., 1444-47 (1989); 84 Am. J. Int'l L. 239-42 (1990); 
U.N. LOS BULL., No. 14, Dec. 1989, at 12-13. 

5. The Territorial Sea Convention contained no comparable listing of activities deemed to be innocent. 
See Stevenson & Oxman, 77ie Third United Nations Conference on the Law of the Sea: the 1915 Geneva Session, 
69 Am. J. Int'l L. 763, 771-72 (1975); Froman, Uncharted Waters: Non-innocent Passage of Warships in the Territorial 
Sea, 21 San Diego L. Rev. 625, 659 (1984); Grammig, The Yoronjima Submarine Incident of August 1980: A 
Soviet Violation of the Law of the Sea, 22 Harv. Int'l L.J. 331, 340 (1981). 

However, since the activities must occur "in the territorial sea" (LOS Convention, article 19(2)), any 
determination of non-innocence of passage by a transiting ship must be made on the basis of acts committed 
while in the territorial sea. Thus cargo, destination, or purpose of the voyage can not be used as a criterion in 
determining that the passage is not innocent. Professor H.B. Robertson testimony, before the House Merchant 
Marine & Fisheries Comm., 97th Cong., Hearing on the Status of the Law of the Sea Treaty Negotiations, July 27, 



In the Territorial Sea 1 65 

1982, Ser. 97-29, at 413-14. Accord, Oxman, The Regime of Warships Under the United Nations Convention on 
the Law of the Sea, 24 Va. J. Int'l L. 813, 853 (1984) (possession of passive characteristics, such as the innate 
combat capabilities of a warship, do not constitute "activity" within the meaning of this enumerated list). 

On the other hand, since coastal States are competent to regulate fishing in their territorial sea, passage of 
foreign fishing vessels engaged in activities that are in violation of those laws or regulations is not innocent. 
Territorial Sea Convention, article 14(5); 1982 LOS Convention, article 21(l)(e). 

In February 1993, Thailand issued a Circular Note in Bangkok in which the Ministry of Foreign Affairs 
announced the position of the Royal Thai Government regarding laws and regulations of several States "the 
effect of which is to restrict the rights of passage and freedom of navigation of foreign ships in their maritime 
zones." The note stated: 

1. According to the well-established rules of customary international law and state practice as 
recognized and codified by the 1982 United Nations Convention on the Law of the Sea, ships of all 
states have the right of innocent passage in the territorial sea, the right of transit passage in straits used 
for international navigation, and the freedom of navigation in the exclusive economic zone of another 
state. 

2. All foreign ships, including warships, merchant ships and fishing vessels, can exercise such rights 
and freedoms without having to give prior notification to, or obtain prior permission, approval or 
consent from the coastal State concerned regarding their intended passage. 

3. Therefore, any laws and regulations which tend to restrict the aforesaid rights and freedom are 
contrary to the rules of customary international law and are, moreover, incompatible with the 
obligations assumed by the states concerned when they signed the 1982 Convention. 

4. For these reasons, the Royal Thai Government feels obliged to declare that Thailand does not 
consider herself bound by the laws and regulations in question. In the meantime, it is hoped that states 
which have enacted such laws and regulations will not actually carry out any measure to impede or 
interfere in any way with the legitimate exercise by foreign ships of the right of innocent passage in 
their territorial seas, the right of transit passage in their straits used for international navigation or the 
freedom of navigation in their exclusive economic zones. 

Letter dated Feb. 18, 1993, from the Permanent Representative of Thailand to the United Nations, U.N. GA 
Doc. A/48/90, Feb. 22, 1993; U.N. LOS BULL., No. 23, June 1993 at 108. 

The seizure by Cambodian forces of the SS Mayaguez on May 12, 1975, was justified by Cambodia on 
the ground that her passage was not innocent. However, the location of the seizure was outside Cambodian 
territorial seas. Thus, the seizure was unlawful. 1975 DIGEST OF UNITED STATES PRACTICE IN INTER- 
NATIONAL LAW 423-26 [hereinafter DIGEST]; Note, The Mayaguez: The Right of Innocent Passage and the 
Legality of Reprisal, 13 San Diego L. Rev. 765 (1976). More importantly, even if a ship enters territorial waters 
and engages in non-innocent activity, the appropriate remedy, consistent with customary international law, is 
first to inform the vessel of the reasons why the coastal State questions the innocence of the passage, and to 
provide the vessel a reasonable opportunity to clarify its intentions or to correct its conduct in a reasonably 
short period of time. In the case of a warship engaging in conduct which renders its passage not innocent, and 
which does not take corrective action upon request, the coastal State may require the ship to leave the territorial 
sea, as set forth in article 30 of the 1982 LOS Convention, in which case the warship shall do so immediately. 
Customary international law requires that the coastal State normally take steps short of force to prevent 
non-innocent passage. 

An informal survey of coastal State maritime legislation conducted by the State Department Office of the 
Legal Adviser revealed that the following nations had specific domestic legislation recognizing the right of 
innocent passage. 

Antigua and Barbuda Federal Republic of Germany (warships) 

Brazil Guatemala (warships) 

Cape Verde Indonesia 

Colombia Iraq 

Comoros Ireland 

Costa Rica Italy (warships) 

Dominica (warships) Kiribati 

Equatorial Guinea Mauritania 

Fiji Mexico 

France (warships) Nicaragua (merchant ships) 



1 66 Excessive Maritime Claims 

Nigeria (warships) Trinidad and Tobago 

Oman Tuvalu 

Saint Kitts and Nevis United Kingdom (warships) 

Saint Vincent and the Grenadines United States (warships) 

Senegal USSR (warships) 

Solomon Islands Uruguay 

Thailand (warships) Vanuatu 

Reference to "warships" in this listing signifies that the legislation specifically recognizes the right of innocent 
passage for warships. Nicaragua's legislation is specific only with respect to merchant shipping. The United 
Kingdom has publicly stated that "under international law all ships enjoy the right of innocent passage in the 
territorial sea of the United Kingdom". 55 Brit. Y.B. Int'l L. 1984, at 549 (1985). See also 58 Brit. Y.B. Int'l 
L. 1987, at 599 (1988). 

6. LOS Convention, article 24(1). 

7. LOS Convention, article 21. 

8. LOS Convention, article 22(2). 

9. Territorial Sea Convention, article 15; LOS Convention, article 24. The United States has adopted 
special Inland Rules applicable to navigation in U.S. waters landward of the demarcation line established by 
U.S. law for that purpose. See U.S. Coast Guard publication CG 169, 33 C.F.R. part 80, and 33 U.S.C. 
§§ 2001 to 2073. The 1972 COLREGS apply seaward of the demarcation line in U.S. national waters, in the 
U.S. Contiguous Zone and Exclusive Economic Zone, and on the high seas. 

10. Territorial Sea Convention, article 16(3); LOS Convention, article 25(3). Authorization to suspend 
innocent passage in the U.S. territorial sea during a national emergency is given to the President in 50 U.S.C. 
§ 191. See also 33 C.F.R. part 127. "Security" includes suspending innocent passage for weapons testing and 
exercises. 

11. MCDOUGAL & BURKE, THE PUBLIC ORDER OF THE OCEANS 592-93. 

12. Articles 22(2) & 23. 

13. Diplomatic Note No. 137 dated Sept. 12, 1986, from American Embassy Colombo. State Depart- 
ment telegram 24621 1, Aug. 6, 1986; American Embassy Colombo telegram 06963, Sept. 13, 1986. 

A talking point provided to the Embassy stated in part that: 

Sri Lanka's restrictions contained in Notice to Mariners No. 1 of 1986 do not appear warranted, because 
they are not limited in duration and because they are broader than they must be to protect the state's 
security in that they interfere with maritime traffic which could not be a threat. ... [T] he Notice to 
Mariners . . . amounts to an indefinite suspension of the right of innocent passage in a great part of the 
territorial sea. 

State Department telegram 246211, Aug. 6, 1986. 

14. Sri Lanka Ministry of Foreign Affairs Diplomatic Note no. L/POL/22 dated Dec. 9, 1986, to 
American Embassy Colombo, Department of State File No. P92 0098-0745. For other instances in which 
nations have sought to suspend innocent passage, see 4 WHITEMAN, DIGEST OF INTERNATIONAL LAW 
379-86 (1965) [hereinafter WHITEMAN]. 

15. U.S. U.N. note dated July 10, 1985, circulated to the permanent missions of the States members of 
the U.N. by U.N. Doc. NV/85/11, July 10, 1985, and reproduced in U.N. LOS BULL., No. 6, Oct. 1985 
at 40. Regulation 7 of the Libyan Notice to Mariners stated: 

7. All types of commercial ships may pass in innocent passage within the Libyan territorial waters 
during the day time only (from sun rise to sun set) provided informing the Libyan authorities at least 
12 hours prior to entry, and to give the following information: 

- point of entering defined by latitude and longitude. 

- duration of stay within the territorial waters and course of sailing and speed. 

- point of leaving the territorial waters defining the latitude and longitude. 

The Federal Republic of Germany also protested this claim in August 1985. 

16. Finnish decree number 656/80, ofjanuary 1, 1981, amending decree number 185, of April 18, 1963, 
which prohibited, in the first paragraph of article 9, innocent passage through fortified areas or other areas of 
the Finnish territorial sea declared to be of military importance, and prohibited in article 21, arrival in such 
areas except between sunrise and sunset. This decree does not appear to have been published in English. 

17. Note verbale No. 92 of June 6, 1989, from American Embassy Helsinki reported in American Embassy 
Helsinki telegram 4302, June 2, 1989. 



In the Territorial Sea 1 67 

18. State Department telegram 174994, June 2, 1989. Finland replied by MFA Note No. 14570, dated 
July 10, 1989, in part as follows: 

According to the Geneva Convention on the Territorial Sea and the Contiguous Zone of 29 April 
1958 to which Finland is a party, it is within the sovereign right of a state to regulate internally the 
exercise of innocent passage of warships. It is to be deduced from the travaux preparatoires of article 22 
of the Convention that no agreement was reached in the deliberations on the question regarding the 
application of the regime on warships and on non-commercial government vessels. There was, 
however, hardly any intention to establish detailed regulations on non-commercial government vessels 
in this respect. 

Therefore, it is the understanding of the Government of Finland that it is within the sovereign 
right of the coastal state to give internal regulations on the exercise of innocent passage of these two 
categories of vessels, these regulations being fully compatible with international law as well as the 1982 
Convention on the Law of the Sea. The internal regulations referred to in the Embassy's note verbale 
do not imply that restriction will be imposed on the right of innocent passage itself. 

It is the intention of the Government of Finland to continue to apply the present regime on the 
innocent passage through the Finnish territorial sea. The regime will be reconsidered if in the future 
changes will emerge in the international regime on innocent passage in the territorial sea. 

American Embassy Helsinki telegram 05235, July 14, 1989. 

19. Article 10 of Finland's decree number 656/80, ofjan. 1, 1981, supra n. 16, amending decree number 
185, of Apr. 18, 1963. 

20. State Department telegram 174994, supra n. 18. 

21. Diplomatic Note dated Apr. 5, 1985, from American Embassy Rome. American Embassy Rome 
telegram 08736, Apr. 5, 1985; State Department telegram 102199, Apr. 4, 1985. Compulsory pilotage was 
first imposed, for the period Apr. 3 to May 18, 1985, on all ships greater than 1^,00 tons and for all ships greater 
than 5,000 tons carrying oil or other pollutants. Hydrolant 653/85(53), DMAHTC Washington DC message 
021618Z Apr. 1985. The following day that requirement was limited to all merchant ships over 10,000 tons, 
and to all ships between 5,000 and 10,000 tons carrying oil or other pollutants. Hydrolant 660/85(53), 
DMAHTC Washington DC message 031919Z Apr. 1985. Two days later the requirement was again modified 
to apply only to merchant ships. Hydrolant 669/85(53), DMAHTC Washington DC message 051505Z Apr. 
1985. This requirement for merchant ships only to carry a pilot was continued for merchant ships of 1 5,000 tons 
DW and above, and for merchant ships 6,000 tons DW and above carrying pollutants, transiting the Strait of 
Messina from May 18, 1985 (Hydrolant 948/85(53), DMAHTC Washington DC message 161424Z May 
1985), pursuant to Minister of Merchant Marine decree on the Straits of Messina dated May 8, 1985 (published 
in the Gazetta Ufficiale No. 1 10 of May 1 1 , 1985), an English translation of which may be found in American 
Embassy Rome telegram 12263, May 15, 1985. On May 16, 1985, the Italian Government replied noting 
that these provisional measures were designed to decrease the risk of maritime accidents "while waiting for 
the construction and putting into operation of technical installations to aid navigation in the Straits." American 
Embassy Rome telegram 12571, May 17, 1985. Such a system went into effect June 1, 1987 (American 
Embassy Rome telegram 12611, May 26, 1987). 

22. Article 20 of Finland's decree number 656/80, ofjan. 1, 1981, supra n. 16, amending decree number 
185, of Apr. 18, 1963. 

23. Diplomatic Note supra n. 18. 

24. Article 13 of the Law of the Union of Soviet Socialist Republics on the State Frontier of the USSR, 
Nov. 24, 1982, provided: 

Innocent passage through the territorial waters (territorial sea) of the USSR shall be permitted for 
the purpose of traversing those waters without entering the internal waters of the USSR or for the 
purpose of proceeding to the internal waters and ports of the USSR or leaving them for the high seas. 

Foreign non-military vessels shall enjoy the right of innocent passage through the territorial waters 
(territorial sea) of the USSR in accordance with the legislation of the USSR and with international 
treaties concluded by the USSR. 

Foreign non-military vessels exercising the right of innocent passage shall follow the customary 
navigational route or the route recommended by the competent Soviet organs, as well as the sea lanes 
and traffic separation schemes. 



168 Excessive Maritime Claims 

The master of a foreign non-military vessel which has violated the rules of innocent passage shall 
be held liable in accordance with Soviet legislation. 

Foreign warships and underwater vehicles shall enjoy the right of innocent passage through the 
territorial waters (territorial sea) of the USSR in accordance with the procedure to be established by 
the Council of Ministers of the USSR. However, submarines and other underwater vehicles are 
required to navigate on the surface and show their flag. 

U.N., Current Developments in State Practice 99-100; 22 I.L.M. 1059-60 (1983). 

25. Article 1 2 of the Rules for Navigation and Sojourn of Foreign Warships in the Territorial and Internal 
Waters and Ports of the USSR, ratified by the Council of Ministers decree no. 384 of Apr. 25, 1983, regarding 
routes and traffic separation schemes, provided: 

1 . The innocent passage of foreign warships through the territorial waters (territorial sea) of the 
USSR for the purpose of traversing the territorial waters (territorial sea) of the USSR without entering 
internal waters and ports of the USSR shall be permitted along routes ordinarily used for international 
navigation: 

in the Baltic Sea: according to the traffic separation systems in the area of the Kypu Peninsula 
(Hiiumaa Island) and in the area of the Porkkala Lighthouse; 

in the Sea of Okhotsk: according to the traffic separation schemes in the areas of Cape Aniva 
(Sakhalin Island) and the Fourth Kurile strait (Paramushirand Makanrushi Islands); 

in the Sea of Japan: according to the traffic separation system in the area of Cape Kril'on (Sakhalin 
Island). 

24 I.L.M. 1717 (1985). 

26. USDAO Moscow telegram 04279, Mar. 13, 1986. 

27. American Embassy Moscow telegram 04479, Mar. 17, 1986. 

28. State Department telegram 144943, May 8, 1986; American Embassy Moscow telegram 07984, May 
12, 1986. Compare the account of this incident, based primarily on news accounts, by Aceves, Diplomacy at 
Sea: U.S. Freedom of Navigation Operations in the Black Sea, Nav. War Coll. Rev., at 65-67 (Spring 1993). 

29. Rubin, Innocent Passage in the Black Sea? Christian Sci. Mon., Mar. 1, 1988, at 14; Carroll, Murky 
Mission in the Black Sea, Wash. Post Nat'l Weekly Ed., March 14-20, 1988, at 25; Carroll, Black Day on the 
Black Sea, Arms Control Today, May 1988, at 14; Arkin, Spying in the Black Sea, Bull, of Atomic Scientists, 
May 1988, at 5. 

30. Memorandum to the Assistant Secretary for Public Affairs from Principal Deputy Legal Adviser, May 
V. Mochary, Apr. 26, 1988, State Department File No. P89 0140-0428. Authoritative public responses include 
Armitage, Asserting U.S. Rights On the Black Sea, Arms Control Today, June 1988, at 13; Schachte, The Black 
Sea Challenge, U.S. Nav. Inst. Proc, at 62 (June 1988); and Grunawalt, Innocent Passage Rights, Christian Sci. 
Mon., Mar. 18, 1988, at 15. See also, Note, Oceans Law and Superpower Relations: The Bumping of the Yorktown 
and the Caron in the Black Sea, 29 Va. J. Int'l L. 713 (1989); Franckx, Innocent Passage of Warships, Marine Policy, 
at 484-90 ( Nov. 1990); and Rolph, Freedom of Navigation and the Black Sea Bumping Incident: How "Innocent" 
Must Innocent Passage Be? 135 Mil. L. Rev. 137 (1992). 

31. FBIS-SOV-88-030, Feb. 16, 1988, at 5; American Embassy Moscow telegram 03078, Feb. 14, 1988. 

32. Diplomatic Note from the American Embassy Moscow to the Soviet Foreign Ministry, delivered 
Mar. 2, 1988, reported in American Embassy Moscow telegram 05222, Mar. 3, 1988, pursuant to instructions 
contained in State Department telegram 061663, Feb. 27, 1988. See also the account of this incident in Aceves, 
supra n. 28, at 59 & 67-70. 

33. See supra text accompanying n. 4 and Appendix 3; Note and Rolph, supra n. 30. See also Aceves, 
supra n. 28, at 73-75. 

34. Clingan, Freedom of Navigation in a Post-UNCLOS III Environment, 46 Law & Contemp. Probs. 107, 
at 1 12 & nn. 23-27 (1983). Professor Clingan was Vice-Chairman of the U.S. Law of the Sea Delegation. This 
article was based on a speech he gave on October 30, 1982, at a symposium on the law of the sea at the Duke 
University School of Law. 

35. U.N. Doc. A/CONF.62/L.97. 

36. 16 Official Records of the Third U.N. Conference on the Law of the Sea 131, para. 3, U.N. Doc. 
A/CONF.62/L.85 [hereinafter Official Records]. 

37. Id. at 132, para. 1. 

38. Id. at 155, para. 35. 



In the Territorial Sea 1 69 

39. Id. at 148, para. 43. 

40. Id. at 162, para. 122. 

41. Id., vol. 17, at 106, para. 70. 

42. Id. at 123, para. 92. 

43. Id. at 124, para. 106. 

44. Id., vol. 16, at 163, para. 144. 

45. Id., at 100, para. 1. 

46. Id. at 101, para. 20. 

47. Id., vol. 17, at 79, para. 200. The United Kingdom continues not to recognize any such requirement 
for prior notification or authorization. See, e.g., 59 Brit. Y.B. Int'l L. 1988, at 522 (1989); 60 id. 1989, at 666 
(1990); and 61 id. 1990, at 576 (1991). 

48. 17 Official Records, at 240, Mar. 9, 1983. 

49. Id. at 241, May 12, 1983. 

50. U.N. Multilateral Treaties Deposited with the Secretary-General, Status as of December 31, 1992, 
U.N. Doc. ST/LEG/SER.E11, at 770. 

51. Quoted in Oxman, The Regime of Warships Under the United Nations Convention on the Law of the Sea, 
24 Va. J. Int'l L. 809, at 854 n.159 (1984). Clingan, An Overview of Second Committee Negotiations in the Law 
of the Sea Conference, 63 Ore. L. Rev. 53, at 64-65 (1984) is to the same effect. During the 1988 annual meeting 
of the American Society of International Law, Ambassador Koh confirmed that point stating that "both the 
Soviets and their American counterparts insisted at the conference that warships be given equal rights of 
innocent passage." 82 Proc. Am. Soc. Int'l L. 239-40 (1988). 

52. U.N. Doc. A/CONF.62/WS/37, 17 Official Records 243-44. The amendments referred to 
included documents A/CONF.62/L.97, April 13, 1982 (to amend article 21(1) by inserting a new (b) 
"navigation of warships including the right to require prior authorization and notification for passage through 
the territorial sea"), 16 id. 217; and A/CONF.62/L.117, April 13, 1982 (to amend article 21, paragraph 1(h) 
by adding "security" after "immigration"), id. at 225. 

53. Supra n. 4. 

54. Aide memoire dated December 4, 1984, from American Embassy Stockholm, reported in American 
Embassy Stockholm telegram 08539, December 10, 1984, pursuant to instructions contained in State 
Department telegram 355149, December 1, 1984. 

55. Of its declaration made in conjunction with deposit of its instrument of ratification of the 1982 Law 
of the Sea Convention, which may be found in U.N. LOS BULL. Special Issue I, March 1987, at 3, by 
Diplomatic Note delivered February 26, 1985 by American Embassy Cairo, pursuant to instructions contained 
in State Department telegram 364687, Dec. 12, 1984. American Embassy Cairo telegram 05527, Feb. 27, 
1985. 

56. Of article 15 of Decree 185 of April 18, 1963 as amended by Decree Amendment 656/80 of Jan. 
1, 1981, by Note verbale No. 92 ofjune 6, 1989 from American Embassy Helsinki, supra n. 17. 

57. Of section 6(3) of the Maritime Boundaries Act of 1977, which may be found in U.N. Legislative 
Series, U.N. Doc. ST/LEG/SER B/19, at 33, by Diplomatic Note dated July 20, 1982 from American 
Embassy Georgetown, pursuant to instructions contained in State Department telegram 194561, July 14, 1982. 
American Embassy Georgetown telegram 3242, July 23, 1982. 

58. Of section 4(2) of the Territorial Waters Act of 1976, which may be found in U.N. Legislative Series 
B/19, at 48, by Diplomatic Notes No. 102 dated March 15, 1976 (State Department File No. P77 0009-0012; 
State Department telegram 058188, 10 March 1976), and Note delivered May 13, 1983, by American Embassy 
New Delhi, pursuant to instructions contained in State Department telegram 128220, May 9, 1983. American 
Embassy New Delhi telegram 09947, May 16, 1983. 

59. Supra n. 15. The Federal Republic of Germany also protested this claim in August 1985. 

60. Department of State note dated October 16, 1981, to the Embassy of Malta at Washington, reported 
in State Department telegrams 335752, Dec. 19, 1981, and 090860, March 28, 1984. The declaration 
accompanying Malta's deposit of its instrument of ratification of the LOS Convention on May 20, 1993 
asserted: 

The exercise of the right of innocent passage of warships through the territorial sea of other States 
should also be perceived to be a peaceful one. Effective and speedy means of communication are easily 
available, and make the prior notification of the exercise of the right of innocent passage of warships, 
reasonable and not incompatible with the Convention. Such notification is already required by some 
States. Malta reserves the right to legislate on this point. 

U.N. LOS BULL., No. 23, June 1993, at 6. 

61. Of section 4(2) of the Maritime Zones Act of 1977, which may be found in SMITH, EXCLUSIVE 
ECONOMIC ZONE CLAIMS 288 [hereinafter SMITH, EEZ CLAIMS], by Diplomatic Note No. 83, dated July 



170 Excessive Maritime Claims 

27, 1982 from American Embassy Port Louis, pursuant to instructions contained in State Department telegram 
204808, July 23, 1982. American Embassy Port Louis telegram 02502, July 28, 1982. 

62. Of section 4(2) of the Maritime Zones Act of 1977, which may be found in U.N. Legislative Series 
B/19, at 103, by Diplomatic Note No. 37, dated July 8, 1982 from American Embassy Victoria, pursuant to 
instructions contained in State Department telegram 156775, June 8, 1982. American Embassy Victoria 
telegram 01 170, July 14, 1982. 

63. Of article 7(a) of Act 45 of 1977, which may be found in U.N. Legislative Series B/19, at 23, by 
Diplomatic Note, dated Aug. 2, 1982, from the United States Mission to the United Nations at New York 
City to PDRY Mission to the United Nations, pursuant to instructions contained in State Department telegram 
208006, July 27, 1982. 

64. Of its declaration made in conjunction with deposit of its instrument of ratification of the 1982 Law 
of the Sea Convention, which may be found in U.N. LOS BULL. Special Issue I, at 8, Mar. 1987, by 
Diplomatic Note No. 062 dated Apr. 22, 1986 (State Department telegram 264932, 22 Aug. 1986, American 
Embassy Belgrade 07850, Aug. 28, 1986), Note No. 3 dated Jan. 5, 1988 (State Department telegram 007901, 
Jan. 12, 1988, American Embassy Belgrade telegram 00411, Jan. 14, 1988); and note from American Embassy 
Belgrade (State Department telegram 292953, Aug. 30, 1990). 

65. Of Decree No. 5384 of Feb. 23, 1976, by diplomatic note delivered July 21, 1989 on behalf of the 
United States by the French Embassy in Tirane, pursuant to instructions contained in State Department 
telegram 193134 (to Paris), June 17, 1989. 

66. Of Decree No. 63-403 of October 12, 1963, which may be found in U.N. LOS BULL., No. 2, 
Dec. 1983, at 1, by American Embassy Algiers Note 72 of Mar. 11, 1964 (enclosure 1 to American Embassy 
Algiers Airgram A-425), and by demarche made Nov. 27, 1982 by American Embassy Tunis (State Department 
telegram 331958, Nov. 27, 1982; American Embassy Tunis telegram 4743, Nov. 27, 1982). 

67. Of article 14(2) of the Territorial Waters Act, 1972, which may be found in SMITH, EEZ CLAIMS 
at 63, and U.N. LOS: Practice of Archipelagic States 6, by diplomatic note delivered in April 1987, by the 
United States Embassy Antigua. State Department telegram 129882, April 30, 1987. 

68. Of section 3(7) of the Territorial Waters and Maritime Zones Act of 1974, which may be found in 
U.N. Legislative Series B/19, at 5, by Diplomatic Note delivered Sept. 7, 1982, by American Embassy Dacca, 
pursuant to instructions contained in State Department telegram 208007, July 22, 1982. American Embassy 
Dacca telegram 5783, Sept. 10, 1982. Also protested by the Federal Republic of Germany in April 1986. 

69. Of section 6(2) of the Territorial Waters Act, 1977-26, which may be found in Supplement to 
Official Gazette, June 30, 1977, at 1, by Diplomatic Note No. 152, dated June 14, 1982, from American 
Embassy Bridgetown, pursuant to instructions contained in State Department telegram 1 16140, June 11, 1982. 
American Embassy Bridgetown telegram 02993, June 15, 1982. 

70. Of its reservation to article 23 on ratification of the 1958 Geneva Convention on the Territorial Sea 
and the Contiguous Zone, which may be found in U.N., Multilateral Treaties Deposited with the 
Secretary-General: Status as of Dec. 31, 1992, U.N. Doc. ST/LEG/SER.E/11, Sales No. E.93.V.11 (1993) 
at 744, by Diplomatic Notes from American Embassy Sofia, dated July 19, 1984 (State Department telegram 
211190, July 18, 1984; American Embassy Sofia telegram 2765, July 20, 1984), Dec. 21, 1984 (State 
Department telegram 369308, 12 Dec. 1984; American Embassy Sofia telegram 4817, Dec. 24, 1984), May 
13, 1985 (State Department telegram 140388, May 8, 1985; American Embassy Sofia telegram 1840, May 14, 
1985), July 19, 1985 (State Department telegram 218859, July 17, 1985; American Embassy Sofia telegram 
4665, Dec. 3, 1985), February 6, 1986 (State Department telegram 380983, Dec. 14, 1985; American Embassy 
Sofia telegram 544, Feb. 7, 1986), May 9, 1986 (State Department telegram 144703, May 8, 1986; American 
Embassy Sofia telegram 3109, July 18, 1986), and March 31, 1987 (American Embassy Sofia telegram 1005, 
May 6, 1987; State Department telegram 80048, March 18, 1987; American Embassy Sofia telegram 1437, 
April 2, 1987). 

Bulgaria asserted that because the Government of the United States did not object to this "so-called" 
reservation, the Government of the United States is bound by it, and that, in accordance with Bulgaria's 
statement concerning article 23 of the 1958 Territorial Sea Convention, it claims the authority to grant or 
deny foreign warships the right to engage in innocent passage through the Bulgarian territorial sea. In response 
the United States said: 

Insofar as that statement constitutes such a claim of authority, it cannot be considered a proper 
reservation to the 1958 Territorial Sea Convention. Article 14 of that Convention recognizes the right 
of ships of all states to innocent passage in the territorial sea, and article 1 5 forbids coastal states to 
hamper innocent passage. No provision in that convention recognizes any authority of a coastal state 
to grant or deny innocent passage to a foreign warship. Article 23 merely recognizes the coastal state's 
authority to require the departure of such a warship in the event that it refuses to comply with coastal 
state passage regulations that conform with international law. 



In the Territorial Sea 1 71 

In customary international law, a "reservation" is a statement made by a state upon, inter alia, 
ratification of a treaty, which "purports to exclude or modify the effect of certain provisions of the 
treaty in their application to that state." To the extent that the Government of Bulgaria's statement 
concerning article 23 constitutes a claim of authority to permit or deny foreign warships the right of 
innocent passage, that statement does not exclude or modify the legal effect of article 23 or other 
convention provisions. Rather, that statement asserts a wholly new claim of authority and would, if 
effective, create a new substantive provision to the convention, concerning a right not previously 
recognized under customary international law. The First United Nations Conference on the Law of 
the Sea specifically rejected proposed articles that would have allowed coastal states to condition warship 
innocent passage on prior permission or even prior notification. 

The statement of the Government of Bulgaria is not truly a reservation as understood in customary 
international law. Because it is not a true reservation, it in no way affects the respective rights and 
duties of the United States and Bulgaria as convention parties, regardless of whether the Government 
of the United States has or has not objected to it. (As to the need for an objection, the reliance of the 
Government of Bulgaria on paragraph 1 of article 21 of the 1969 Vienna Convention on the Law of 
Treaties is misplaced. That convention provides, in article 4, that it does not apply to treaties concluded 
before its entry into force — for example, the 1958 Territorial Sea Convention and the 1962 statement 
of Bulgaria regarding that convention.) 

Even if the statement concerning article 23 could be considered a reservation as understood in 
customary international law, it would not be a permissible reservation. To the extent that it claims the 
right to grant or deny foreign warships the right of innocent passage, the statement of the Government 
of Bulgaria clearly conflicts with the express terms, object and purpose of the Territorial Sea 
Convention, which allocated the rights and duties of coastal and non-coastal states in the territorial 
sea, including guarantee of the right of innocent passage for vessels of all states. 

State Department telegram 140388, May 8, 1985. See text accompanying n. 102 infra for Bulgaria's withdrawal 
of this claim. 

71. Of section 9(a) of the Territorial Sea and Maritime Zones Act of 1977, which may be found in U.N. 
Legislative Series B/19, at 9, by Diplomatic Note delivered Aug. 6, 1982, from American Embassy Rangoon, 
pursuant to instructions contained in State Department telegram 196007, July 15, 1982. American Embassy 
Rangoon telegram 32243, Aug. 9, 1982. Also protested by the United Kingdom in 1993. 

72. Of article 5 of Decree Law 126/77, which may be found in U.N. Baselines: National Legislation 
99, and SMITH, EEZ CLAIMS, at 96, by Diplomatic Notes 95 and 147 dated July 21, 1989. State Department 
telegram 193415, June 18, 1989; American Embassy Praia telegram 02186, Aug. 27, 1990. 

73. Of article 6 of the Law on the Territorial Sea and the Contiguous Zone of Feb. 25, 1992, which 
may be found in U.N. LOS BULL., No. 21, Aug. 1992, at 25, by an oral demarche delivered Aug. 26, 1992 
in Beijing. 

74. Of Ordinance 49/77 of Dec. 20, 1977, by Diplomatic Note No. 191 delivered Dec. 15, 1987, from 
American Embassy Brazzaville, pursuant to instructions contained in State Department telegram 382072, Dec. 
10, 1987. American Embassy Brazzaville telegram 0520, Feb. 26, 1988. 

75. Of article 38(3) of the Regulation ofjune 15, 1982, which may be found in U.N. Legislative Series, 
U.N. Doc. ST/LEG/SER.B/18, at 20, by note verbale delivered Nov. 3, 1986. State Department telegram 
311721, Oct. 3, 1986; State Department telegram 345715, Nov. 4, 1986. Following German unification on 
October 3, 1990, Germany has not maintained this claim. 

76. Of article 6(2) of the Territorial Waters Act No. 17 of 1978, which may be found in 7 NEW 
DIRECTIONS IN THE LAW OF THE SEA 33 (1980), by Diplomatic Note No. 004, dated July 21, 1982, from 
American Embassy Bridgetown (pursuant to instructions contained in State Department telegram 200855, July 
20, 1982; American Embassy Bridgetown telegram 03658, July 23, 1982), and by American Embassy 
Bridgetown demarche on Feb. 24, 1986 (reported in American Embassy Bridgetown telegram 00522, Feb. 25, 
1986, pursuant to instruction contained in State Department telegram 03681, Jan. 30, 1986). 

77. Of its statement on signature of the 1982 Law of the Sea Convention, which may be found in Office 
of the Special Representative of the Secretary-General for the Law of the Sea. The Law of the Sea: Status of 
the United Nations Convention on the Law of the Sea 18 (U.N. Sales No. E.84.V.5, 1985), by the United 
States Statement in Right of Reply of Mar. 8, 1983, 17 Official Records 244, U.N. Doc. 
A/CONF.62/WS/37; by State Department diplomatic note to the Algerian Embassy in Washington, dated 
Aug. 17, 1987, State Department File No. P87 0098-1262; and by the United States Mission to the United 
Nations Diplomatic Note 3503/437, Jan. 11, 1994, to the Secretary-General of the United Nations, Limit in 
the Seas No. 114(1994). 



172 Excessive Maritime Claims 

78. Of section 1 ofAct32/76, whichmay be found in U.N. Legislative Series B/19, at 135, by Diplomatic 
Note delivered Aug. 2, 1982, by American Embassy Colombo Consular Agent in Male, pursuant to instructions 
contained in State Department telegram 150666, June 2, 1982. American Embassy Colombo telegram 4672, 
Aug. 6, 1982. 

79. Of Oman's Notice of June 1, 1982, which may be found in U.N. Current Developments I, at 80-81, 
by American Embassy Muscat Note No. 0606 of Aug. 12, 1991. State Department telegram 187028, June 9, 
1990; American Embassy Muscat telegram 03528 of Aug. 13, 1991. 

80. Of section 3(2) of the Territorial Waters and Maritime Zones Act of 1976, which may be found in 
U.N. Legislative Series B/19, at 86, by Diplomatic Note No. 694 dated June 8, 1982, from American Embassy 
Islamabad, pursuant to instructions contained in State Department telegram 155385, June 7, 1982. American 
Embassy Islamabad telegram 09069, June 14, 1982. 

81. Of Press Release No. 7 of Sept. 23, 1968, by Diplomatic Note 169, dated Mar. 10, 1969, from 
American Embassy Manila, State Department File No. POL 33-4 PHIL. 

82. Of Ministry of Defense Order dated Mar. 29, 1957, Polish Journal of Law No. 19 of 1957, Item 96, 
by inquiries in May and June 1989 by American Embassy Warsaw. State Department telegram 174663, June 
2, 1989; American Embassy Warsaw telegram 8369, June 21, 1989. 

83. Of its declaration made in conjunction with its signature of the 1982 Law of the Sea Convention, which 
may be found in UN. LOS BULL., No. 1, Sept. 1983, at 18, and of Decree No. 39 ofjan. 21, 1956, which may 
be found in French in U.N. Legislative Series, U.N. Doc. ST/LEG/Ser.B/6, at 239, by Diplomatic Note No. 
262 dated Aug. 1, 1989 from American Embassy Bucharest. State Department telegram 218441, July 11, 1989; 
American Embassy Sofia telegram 06294, Aug. 3, 1989. Romania replied: 

The right to adopt such measures is in full agreement with articles 19 and 25 of the Convention, 
as is stipulated in the declaration of the President of the UN Conference on the Law of the Sea, 
presented in the plenary meeting of the Conference on April 26, 1982. 

The amendment referring to article 21 of the Convention presented at the Conference by Romania 
and other countries was aimed, as it is shown in the declaration of the President, to clarify the text of 
the Draft Convention. The countries which co-authored the amendment expressing their agreement 
not to insist on asking for its being put to a vote, reasserted, at the same time, that "their decision does 
not touch the rights of littoral states to adopt measures to safeguard their security interests, in accordance 
with articles 19 and 25 of the Draft Convention." 

This agreement was included in the above-mentioned President's declaration. 

Consequently, the declaration made by the Socialist Republic of Romania on December 10, 1982, 
on the occasion of signing the UN Convention on the Law of the Sea is in accordance with the final 
agreement and which was included in the declaration of the Conference President of April 26, 1982, 
and it is perfectly valid in international law. That is why the objections raised by the Government of 
the United States on the content of this declaration are unacceptable. 

American Embassy Bucharest telegram 07689, Sept. 18, 1989. 

84. Of article 10 of the Territorial Sea and Ports Law No. 37 of Sept. 10, 1972, which may be found in 
7 NEW DIRECTIONS IN THE LAW OF THE SEA 59 (1980), by Diplomatic Note delivered Aug. 28, 1982, 
by American Embassy Mogadishu. State Department telegram 231502, Aug. 18, 1982; American Embassy 
Mogadishu telegram 6215, Aug. 29, 1982. 

85. Protest directed at section 3(1) of the Maritime Zones Law No. 22 of 1976, which may be found 
in U.N. Legislative Series B/19, at 120, by Diplomatic Note No. 317 dated Sept. 12, 1986, from American 
Embassy Colombo, supra n. 13. The Ministry of Foreign Affairs replied: 

The provisions of the Maritime Zones Law relating to the requirement of prior consent of the 
Government for passage of warships in Sri Lanka's territorial waters, is consistent with the present state 
of international law on this question. The 1982 Convention on the Law of the Sea recognizes that 
special rules are applicable to foreign warships as distinct from other ships and warships are treated 
separately in the Convention. The provisions of the Convention also specifically require the conformity 
of warships with the laws and regulations of the coastal state. 

Sri Lanka MFA Note No. L/POL/22 dated Dec. 9, 1986, supra n. 14. This requirement was also protested 
by the EC in May 1987. 

86. Of article 8(3) of the Territorial Waters and Continental Shelf Act of 1970, which may be found in 
U.N., Legislative Series B/16, at 33, by Diplomatic Note delivered June 6, 1989, by American Embassy 



In the Territorial Sea 1 73 

Khartoum. State Department telegram 174664, June 2, 1989; American Embassy Khartoum telegram 06535, 
June 7, 1989. 

87. Of article 12 of Legal Decree No. 304, Dec. 28, 1963, which may be found in Limits in the Seas 
No. 53, Syria: Straight Baselines (1973), by Diplomatic Note delivered Nov. 21, 1989, by American Embassy 
Damascus. State Department telegram 337081, Oct. 20, 1989; American Embassy Damascus telegram 03212, 
Aug. 23, 1990. 

88. Of Decree issued Mar. 17, 1980 on the regulations for foreign ships operating in the maritime zones 
of the Socialist Republic of Vietnam, which may be found in IV FBIS Asia & Pacific, March 19, 1980, at K2, 
by aide memoire dated Aug. 24, 1982, from the United States Mission to the United Nations at New York 
City to SRV Mission to the United Nations, pursuant to instructions contained in State Department telegram 
232901, Aug. 19, 1982. U.S. Mission to the United Nations, New York telegram 03590, Nov. 23, 1982. 
Also protested by the Federal Republic of Germany in October 1985. 

89. Of its declaration made in conjunction with its signature of the 1982 Law of the Sea Convention, 
which may be found in U.N. LOS BULL., No. 1, September 1983, at 18, by Diplomatic Note No. 449 dated 
Oct. 6, 1986, from American Embassy Sanaa. State Department telegram 312052, Oct. 3, 1986; American 
Embassy Sanaa telegram 06770, Oct. 6, 1986. 

90. Department of State note dated Oct. 16, 1981, to the Embassy of Malta at Washington, reported in 
State Department telegrams 335752, Dec. 19, 1981, and 090860, Mar. 28, 1984. In a March 20, 1984, telegram 
to the Department (84 Valetta 00596), American Embassy Valetta reported that no implementing regulations 
had been promulgated. The Maltese Act No. XXVIII of 1981 may be found in U.N. Doc. LE 113 (3-3), 
November 16, 1981. The Declaration accompanying Malta's instrument of ratification of the LOS Convention 
included the statement that "Legislation and regulations concerning the passage of ships through Malta's 
territorial sea are compatible with the provisions of the Convention. At the same time, the right is reserved 
to develop further this legislation in conformity with the Convention as may be required." U.N. LOS BULL., 
No. 23, June 1993, at 7. 

Articles 14 and 15 of the 1958 Convention on the Territorial Sea and the Contiguous Zone, concerning 
enforcement and penalties for violating coastal State regulations, are developed in articles 17-20 and 24 of the 
1982 LOS Convention. The LOS Convention also provides, in article 27(5), that "except as provided in Part 
XII [marine pollution, see article 230] or with respect to violations of laws and regulations adopted in 
accordance with Part V [EEZ, see article 73], the coastal State may not take any steps on board a foreign ship 
passing through the territorial sea to arrest any person or to conduct any investigation in connection with any 
crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only 
passing though the territorial sea without entering internal waters." Article 230(2) of the LOS Convention 
provides that "monetary penalties only may be imposed with respect to violations of national laws and 
regulations or applicable international rules and standards for the prevention, reduction and control of pollution 
of the marine environment, committed by foreign vessels in the territorial sea, except in the case of a wilful 
and serious act of pollution in the territorial sea." 

91. American Embassy Copenhagen Diplomatic Note No. 061, July 12, 1991, delivered pursuant to 
instructions contained in State Department telegram 223707, July 9, 1991; American Embassy Copenhagen 
telegram 04829, July 17, 1991, protesting section 3(4) of Ordinance no. 73 of 27 Feb. 1976, which may be 
found in U.N. Legislative Series B/19, at 143, requiring advance permission for simultaneous passage of more 
than three warships through the Danish territorial sea, except prior notice is required for passage through the 
Great Belt, Sansoe Belt or the Sound. On Oct. 3, 1991 the Danish Ministry of Foreign Affairs replied by note 
verbale JT.2, File No. 119.N.2/3/f/l, which stated that: 

The rules contained in that ordinance are not contrary to customary international law or international 
convention binding upon Denmark. 

The conditions for exercising innocent passage in the territorial sea for foreign warships have never 
been laid down authoritatively in international law. The 1958 Geneva Convention on the Territorial 
Sea and the Contiguous Zone does not in its relevant provisions specifically address this question. 

The same applies to the 1982 U.N. Convention on the Law of the Sea which in its relevant provision 
on innocent passage in the territorial sea, states that "ships of all States" enjoy the right of innocent 
passage using the same wording as the 1958 Geneva Convention on the Territorial Sea and the 
Contiguous Zone. 



1 74 Excessive Maritime Claims 

Furthermore all Diplomatic Missions accredited to Denmark were officially notified about the Ordinance 
by Circular Note of 4 March 1976. Before this NATO Allies were informed about the contents of the 
Ordinance in the NATO Council at its meeting of 25 February 1976. It must be pointed out that neither 
the notification nor the NATO briefing gave rise to a reaction by the United States. 

American Embassy Copenhagen telegram 07435, Oct. 24, 1991. 

92. Aide memoire from the United States Mission to the United Nations at New York to the Socialist 
Republic of Vietnam Mission dated Aug. 24, 1982, State Department telegram 232902, Aug. 19, 1982, U.S. 
Mission to the United Nations telegram 03590, Nov. 23, 1982. The Federal Republic of Germany also 
protested this claim in October 1985. 

93. American Embassy Belgrade Diplomatic Note No. 062 dated Aug. 22, 1986 (State Department telegram 
264932, Aug. 22, 1986; American Embassy Belgrade telegram 7850, Aug. 28, 1986) protesting Yugoslavia's 
statement deposited with its instrument of ratification of the 1982 LOS Convention dated Mar. 6, 1986; and by 
American Embassy Belgrade Note no. 003 of Jan. 5, 1988 (State Department telegram 007901, Jan. 12, 1988; 
American Embassy Belgrade telegram 00411, Jan. 14, 1988), protesting article 20(1) of the Law of the Coastal Sea 
and Continental Shelf of the Socialist Federal Republic ofYugoslavia, published July 25, 1987, and reprinted in U.N. 
LOS BULL., No. 18, at 18. The same limitation was contained in article 14 of the Law of the Coastal Sea, the Contiguous 
Zone and the Continental Shelf of the Socialist Federal Republic ofYugoslavia, published May 12, 1965, and reproduced 
in U.N. Legislative Series B/15, at 189, and in 1 NEW DIRECTIONS IN THE LAW OF THE SEA 36. Yugoslavia's 
declaration made in conjunction with deposit of its instrument of ratification of the 1982 Law of the Sea Convention 
may be found in U.N. LOS BULL., Special Issue I, Mar. 1987, at 8. 

94. U.S. Department of the Navy, The Commander's Handbook on the Law of Naval Operations (NWP 9 
(Rev. A)/FMFM 1-10), para. 2.1.2.1 (1989). Compare the 1982 LOS Convention, articles. 21(1), 22(2) & 23. 
Under article 23 of the 1982 LOS Convention, foreign nuclear powered ships and ships carrying nuclear or 
other inherendy dangerous or noxious substances exercising the right of innocent passage must "carry 
documents and observe special precautionary measures established for such ships by international agreements," 
such as chapter VIII of the 1974 International Convention for the Safety of Life at Sea, 32 U.S.T. 275-77, 
287-91, T.I.A.S. No. 9700 (nuclear passenger ship and nuclear cargo ship safety certificates). These provisions 
of the 1974 SOLAS are specifically not applicable to warships. 

United States Public Law 93-513, establishes the following policy regarding claims arising out of the 
operation of U.S. nuclear powered warships: 

It is the policy of the United States that it will pay claims or judgments for bodily injury, death, or 
damage to or loss of real or personal property proven to have resulted from a nuclear incident involving 
the nuclear reactor of a United States warship: Provided, That the injury, death, damage, or loss was 
not caused by the act of an armed force engaged in combat or as a result of civil insurrection. The 
President may authorize, under such terms and conditions as he may direct, the payment of such claims 
or judgments from any contingency funds available to the Government or may certify such claims or 
judgments to the Congress for appropriation of the necessary funds. 

88 Stat. 1611, codified in 42 U.S.C. §2211. 

The safety record of United States nuclear powered warships is outstanding. There has never been a nuclear 
accident in the 40 year history of the program. This program currently includes 107 operating nuclear powered 
warships and 151 operating reactors, significandy larger than the U.S. commercial nuclear program. Since 
1955, U.S. Navy nuclear powered warships have steamed over 96 million miles and amassed over 4300 
reactor-years of operating experience. These ships have visited more than 150 ports in over 50 foreign countries 
and dependencies. Department of the Navy White Paper "The Safety of Operations of U.S. Nuclear-Powered 
Warships" (Oct. 1993). 

Australia's policy on access of foreign nuclear powered and nuclear weapons capable warships, based in 
part on the foregoing, appears in 77 Aust. Y.B. Int'l L. 243-47 (1991). 

95. Article 8 of Act No. 45 of 1977 concerning the territorial sea, exclusive economic zone, continental 
shelf and other marine areas, a translation of which may be found in U.N. Legislative Series B/19, at 21-26. 

96. Diplomatic Note, dated August 2, 1982, from the United States Mission to the United Nations at 
New York to PDRY Mission to the United Nations, supra n. 63. 

97. Article 3(3) of Pakistan's Territorial Waters and Maritime Zones Act, 1976, which may be found in 
U.N. Legislative Series B/19, at 86, protested by Diplomatic Note No. 694 dated June 8, 1982, delivered by 
American Embassy Islamabad, supra n. 80. 

A similar declaration accompanying Malta's deposit of its instrument of ratification of the LOS Convention 
on May 20, 1993 states that "Malta is also of the view that such a notification requirement is needed in respect 






In the Territorial Sea 1 75 

of nuclear-powered ships or ships carrying nuclear or other inherently dangerous or noxious substances." U.N. 
LOS BULL., No. 23, June 1993, at 7. 

98. Article VII of Law No. 52/AN/78 of January 9, 1979, which may be found in SMITH, EEZ CLAIMS, 
at 112, was protested by Diplomatic Note dated May 22, 1989, from American Embassy Djibouti. State 
Department telegram 100762, Mar. 31, 1989; American Embassy Djibouti telegram 1481, June 1, 1989. 

99. The Yemeni declaration, which may be found in Office of the Special Representative of the 
Secretary-General for the Law of the Sea, The Law of the Sea: Status of the United Nations Convention on 
the Law of the Sea, U.N. Sales No. E.85.V.5, at 29 (1985), was protested by Diplomatic Note No. 449 dated 
October 6, 1986, from American Embassy Sanaa, supra n. 89. 

100. State Department telegram 364687, Dec. 12, 1984, para. 11; American Embassy Cairo telegram 
05527, Feb. 27, 1985. The Egyptian declaration may be found in Office of the Special Representative of the 
Secretary-General for the Law of the Sea, The Law of the Sea: Status of the United Nations Convention on 
the Law of the Sea, at 35. 

101. Diplomatic Note No. 0606 dated Aug. 12, 1991 and delivered Aug. 13, 1991 by American Embassy 
Muscat, pursuant to instructions contained in State Department telegram 187028, June 9, 1990. American 
Embassy Muscat telegram 03528, Aug. 13, 1991. Oman's declarations made upon deposit of its instrument of 
ratification may be found in U.N. LOS BULL., No. 14, Dec. 1989, at 8-9. 

102. DEPT ST. BULL., Nov. 1989, at 26; 84 Am. J. Int'l L. 239-42 (1990); Appendix 4. 

103. U.N. Current Developments in State Practice No. II, at 7. 

104. Diplomatic Note delivered Dec. 4, 1979, by American Embassy Ankara. American Embassy Ankara 
telegram 08743, Dec. 4, 1979; State Department telegram 287083, Nov. 2, 1979. The United Kingdom had 
made a similar protest by its note no. 67 of October 1, 1979. American Embassy Ankara telegram 7818, Oct. 
22, 1979; American Embassy Ankara telegram 8008, Oct. 26, 1979. 

105. Turkish Embassy letter 780-144 dated May 2, 1985, State Department File No. P92 0098-0747. 

106. Note verbale dated Feb. 18, 1988, from the Haitian Ministry of the Interior, Decentralization, the 
General Police Force and the Civil Service, communicated to the United Nations by letter dated Feb. 29, 
1988, and reproduced in U.N. LOS BULL., No. 11, July 1988, at 13. 

107. American Embassy Port au Prince diplomatic note delivered Aug. 1, 1989, pursuant to instructions 
contained in State Department telegram 229980, July 20, 1989. American Embassy Port au Prince telegram 
05277, Aug. 7, 1989. 

108. 28 I.L.M. 649 (1989), entered into force May 5, 1992. The States party as of Dec. 28, 1992 are listed 
in 32 I.L.M. 276 (1993). 

109. Sen. Treaty Doc. 102-5, 102d Cong., 1st Sess. (1991), at VI. 

110. U.N. Doc. ST/LEG/SER.E/11, Multilateral Treaties Deposited with the Secretary-General as of 
Dec. 31, 1992, at 832-33 (U.N. Sales No. E.93.V.77, 1993). 

111. Cong. Rec. SI 2292, Aug. 11, 1992. The Administration had sought such an understanding (Letter 
of Submittal, supra n. 109, at VI), and the Senate Foreign Relations Committee concurred. Sen. Exec. Rep. 
102-36, 102d Cong., 2d Sess., May 22, 1992, at 17. Deposit of the United States instrument of ratification, 
which was signed on Oct. 17, 1992, awaits enactment of the necessary implementing legislation. See Sen. 
Exec. Rep. 102-36, at 15-16. 



International Straits 177 



Chapter XI 
International Straits 



Legal Regime 

Part III of the LOS Convention addresses five different kinds of straits used 
for international navigation, each with a distinct legal regime: 

1 . Straits connecting one part of the high seas/EEZ and another part of the 
high seas/EEZ (Article 37, governed by transit passage). 

2. Straits connecting a part of the high seas/EEZ and the territorial sea of a 
foreign nation (Article 45(l)(b), regulated by nonsuspendable innocent passage). 

3. Straits connecting one part of the high seas/EEZ and another part of the 
high seas/EEZ where the strait is formed by an island of a State bordering the 
strait and its mainland, if there exists seaward of the island a route through the 
high seas/EEZ of similar convenience with regard to navigation and hydro- 
graphic characteristics (Article 38(1), regulated by nonsuspendable innocent 
passage) . 

4. Straits regulated in whole or in part by international conventions (Article 
35(c)). The LOS Convention does not alter the legal regime in straits regulated 
by long-standing international conventions in force specifically relating to such 
straits. 

5. Straits through archipelagic waters governed by archipelagic sea lanes 
passage (Article 54). 

There are a number of straits connecting the high seas/EEZ with claimed 
historic waters. The validity of those claims is, at best, uncertain. 

Transit Passage 

Straits used for international navigation through the territorial sea between one 
part of the high seas or an exclusive economic zone and another part of the high 
seas or an exclusive economic zone are subject to the legal regime of transit passage. 
Under international law, the ships and aircraft of all nations, including warships and 
military aircraft, enjoy the right of unimpeded transit passage through such straits. 
The great majority of strategically important straits, e.g., Gibraltar, Bab el Mandeb, 
Hormuz, and Malacca, fall into this category. The transit passage regime also applies 
to those straits less than six miles wide previously subject to the regime of 
nonsuspendable innocent passage under the Territorial Sea Convention, e.g., 
Singapore and Sunda. Transit passage also applies in those straits where the high seas 
or exclusive economic zone corridor is not of similar convenience with respect to 
navigational and hydrographical characteristics. 

Transit passage is defined as the exercise of the freedom of navigation and 
overflight solely for the purpose of continuous and expeditious transit in the 



178 Excessive Maritime Claims 

normal modes of operation utilized by ships and aircraft for such passage. This 
means that submarines are free to transit international straits submerged, since 
that is their normal mode of operation, and that surface warships may transit in 
a manner consistent with sound navigational practices and the security of the 
force, including formation steaming and the launching and recovery of aircraft. 
All transiting ships and aircraft must proceed without delay; must refrain from 
the threat or the use of force against the sovereignty, territorial integrity, or 
political independence of States bordering the strait; and must otherwise refrain 
from any activities other than those incidental to their normal modes of 
continuous and expeditious transit. 

Transit passage through international straits cannot be suspended by the 
coastal State for any purpose. This principle of international law also applies to 
transiting ships (including warships) of nations at peace with the bordering coastal 
or island nation but involved in armed conflict with another nation. Warships 
and other targetable vessels of nations in armed conflict with the bordering 
coastal or island nation may be attacked within that portion of the international 
strait overlapped by the territorial sea of the belligerent coastal or island nation, 
as in all high seas areas of the strait. 

States bordering international straits overlapped by territorial seas may desig- 
nate sea lanes and prescribe traffic separation schemes to promote navigational 
safety. However, such sea lanes and separation schemes must be approved by 
the competent international organization in accordance with generally accepted 
international standards. Ships in transit must respect properly designated sea lanes 

Q 

and traffic separation schemes. 

The position of the United States on transit passage is well known. For 
example, in the Proclamation extending the territorial sea of the United States, 
President Reagan stated: 

In accordance with international law, as reflected in the applicable provisions of 
the 1982 United Nations Convention on the Law of the Sea, within the territorial 
sea of the United States, . . . the ships and aircraft of all countries enjoy the right 
of transit passage through international straits. 

The Department of State summarized the development of the regime of 
transit passage in a 1985 telegram to American Embassy Madrid, Spain: 

[The following is provided to aid in an understanding of the regime of transit 
passage through territorial seas forming certain straits used for international 
navigation. The crucial nature of the right of passage through straits has led to the 
development, reflected in Part III of the 1982 LOS Convention, of the concept 
of so-called transit passage through straits used for international navigation that 
link a part of the high seas or an EEZ with another part of the high seas or an 
EEZ. (Frequently, such straits — of which Gibraltar is one of the prime examples — 
are referred to as "international straits," although there are other types of 






International Straits 179 

international straits that do not link high seas or EEZ on either end. For 
convenience, the term will be used here.) In international straits, the balancing of 
coastal and non-coastal state interests has resulted in a regime of transit passage — a 
regime that is more liberal to flag states than that of innocent passage, the usual 
regime in a territorial sea. For example, vessels in transit passage are subject to 
fewer coastal state laws than they would be while in innocent passage, and aircraft 
may overfly such straits and submarines may navigate them while submerged — 
neither of which is true for innocent passage. At UNCLOS III, Spain tried, during 
the last substantive sessions, to amend portions of the Convention provisions that 
bore upon coastal state rights and duties regarding vessels and aircraft exercising 
the right of transit passage. None of those proposals was adopted, but the Spanish 
declarations upon signing revive the principles espoused in the proposals.] 10 

In a December 1984 aide memoire delivered to Sweden, the United States 
described the legal regime followed by U.S. warships navigating through 
international straits: 

. . . [WJarships of the United States navigate through territorial seas in straits used 
for international navigation in accordance with international law as reflected in 
Part III of the 1982 Convention on the Law of the Sea. As is true of innocent 
passage in non-straits waters, exercise of the appropriate navigational regime in 
straits poses no threat to the security of the coastal State and constitutes no violation 
of its territorial integrity. 

It is the position of the United States that transit passage also applies in the 
approaches to international straits. In a telegram to American Embassy Santiago, 
Chile, the State Department discussed the rights of navigation through the Strait 
of Magellan and Beagle Channel: 

The fact that a vessel navigating through [an international strait] (or an aircraft 
overflying it) would have to traverse an area of Argentine territorial sea is a matter 
of no legal consequence. It is an extremely rare occurrence for a strait to be so 
configured that a vessel can enter it without traversing some extent of territorial 
sea before reaching the headlands. It is, nevertheless, the firm position of the USG 
that the regime of transit passage applies not only to the territorial seas actually 
within the strait, but also to those in the approaches to it. The presence of 
Argentine territorial sea outside the eastern end of the strait no more "blocks" it 
than does the presence of Chilean territorial sea outside the western end. 12 

The same position was taken in 1988 with regard to the approaches to the 
Strait ofHormuz in a U.S. Navy telegram, which had been coordinated with 
the Department of State to reflect official U.S. policy: 

The geographies of straits vary. The areas of overlapping territorial seas in many 
cases do not encompass the entire area of the strait in which the transit passage 
regime applies. The regime applies not only in or over the waters overlapped by 
territorial seas but also throughout the strait and in its approaches, including areas 



180 Excessive Maritime Claims 

of the territorial sea that are not overlapped. The Strait of Hormuz provides a case 
in point: although the area of overlap of the territorial seas of Iran and Oman is 
relatively small, the regime of transit passage applies throughout the strait as well 
as in its approaches including areas of the Omani and Iranian territorial seas not 
overlapped by the other. 13 

Other states have recognized the right of transit passage. For example, the 
right of transit passage was fully recognized in Article 4 of the Treaty of 
Delimitation between Venezuela and the Netherlands, March 21, 1978; 
Article VI of the Agreement on the Delimitation of Marine and Submarine 
Areas, April 18, 1990, between Trinidad and Tobago and Venezuela; and 
Article 7(6) of the 1978 treaty between Australia and Papua New Guinea 
concerning the Torres Strait. The right of transit passage of straits is also 
recognized in Article 5(2) of the 1985 multilateral Treaty of Rarotonga con- 
cerning Nuclear Free Zones in the South Pacific, and Article 5(2)(c) of the 
1990 Protocol Concerning Specially Protected Areas and Wildlife to the 
Convention for the Protection and Development of the Marine Environment 
of the Wider Caribbean Region. Antigua and Barbuda has also recognized the 
right of transit passage in article 15A of the Maritime Areas Act, 1982. 

Although the term "transit passage" was not used in the statement in 
connection with extension of the United Kingdom's territorial sea to 12 miles, 
the "transit passage" regime was applied in a Declaration issued by France and 
the United Kingdom setting out the governing regime of navigation in the 
Dover Straits at the time an Agreement was signed on November 2, 1988, 
establishing a territorial sea boundary in the Straits of Dover. In a speech 
delivered to the thirteenth annual seminar of the Center for Oceans Law and 
Policy, Washington, D.C., April 1, 1989, David H. Anderson, Deputy Legal 
Adviser to the British Foreign Office, commented on the right of transit passage 
and the Straits of Dover. He said that: 

The Declaration represents a significant example of practice by the two coastal 
states on the Straits of Dover which are also maritime states with worldwide 
connections. The terms of the Declaration were clearly inspired by Part III of the 
Convention of 1982. It was issued in the context of a boundary agreement made 
necessary by extension of the breadth of the territorial sea by both coastal states 
to 12 miles. In this and other respects the Convention of 1982 is influencing the 
practice of States in regard to the limits of national jurisdiction. There are now 
105 States [119 by July 1994] which have a territorial sea of 12 n. miles - a 
significant increase since 1982 and including all five Permanent Members of the 
Security Council. The Convention is also influencing State practice in the matters 
of innocent passage through the territorial sea and transit passage through straits 
used for international navigation. Several experiences since 1982 have shown the 
importance of those rights, e.g. in regard to straits such as Hormuz, Gibraltar, Bab 
El Mandeb, Sunda and others. 



International Straits 1 81 

There are several examples of Declarations about the regime of transit through 
particular straits used for international navigation, for example the Anglo-French 
Declaration of 1904 about the Straits of Gibraltar and the statement circulated to 
the Third UN Conference on the Law of the Sea by Malaysia, Indonesia and 
Singapore about the Straits of Malacca and the Straits of Singapore. The Anglo- 
French Declaration of 1988 may be regarded as adding to the body of State practice 
on the subject of transit passage through straits, taking full account of the outcome 
of the Third Conference's negotiations on the related issues of the limits of the 
territorial sea and straits. The Declaration strengthens the position under interna- 
tional law on a world-wide basis. It may serve as a precedent for States bordering 
other major straits used for international navigation. 23 

In 1992, the UN Secretary-General concluded that the "regime of transit 
passage has been widely accepted in general terms by the international com- 
munity and has become part of the practice of States, both of States bordering 
straits as well as of shipping States." 

In February 1993, the Ministry of Foreign Affairs of Thailand stated the 
position of the Royal Thai Government that "according to well-established rules 
of customary international law and State practice as recognized and codified by 
the 1982 United Nations Convention on the Law of the Sea, ships of all States 

have . . . the right of transit passage in the straits used for international naviga- 

„25 

tion. 

Innocent Passage 

The regime of innocent passage, rather than transit passage, applies in straits 
used for international navigation that connect a part of the high seas or an 
exclusive economic zone with the territorial sea of a coastal State. There may 
be no suspension of innocent passage through such straits. ' These so-called 
"dead-end" straits include Head Harbour Passage leading through the Canadian 
territorial sea to the United States' Passamaquoddy Bay and the Bahrain-Saudi 
Arabia Passage. 

The regime of non-suspendable innocent passage also applies in those straits 
such as Messina, between the Italian mainland and Sicily, formed by an island 
of a State bordering the strait and its mainland, where there exists seaward of the 
island a route through the high seas or EEZ of similar convenience with regard 
to navigational and hydrographical convenience. 

The United States protested the claim by the former Yugoslavia that it had 
the right to determine by its laws and regulations which of the straits used for 
international navigation in its territorial sea will retain the regime of innocent 
passage "on the basis of article 38, paragraph 1, and article 45, paragraph 1(a), of 

9Q 

the [LOS] Convention."' The United States noted that the right of Yugoslavia 
to designate which of the straits in its territorial sea constitute straits within the 
meaning of Article 38(1): 



1 82 Excessive Maritime Claims 

is not unqualified and that there must in fact exist, seaward of the island in question, 
a route through the high seas or through an exclusive economic zone of similar 
convenience with respect to navigational and hydrographical characteristics. 

The United States accordingly reserved its rights and those of its nationals in this 

, 30 
regard. 

International Straits Not Completely Overlapped by Territorial Seas 

Ships and aircraft transiting through or above straits used for international 
navigation which are not completely overlapped by territorial seas and through 
which there is a high seas or exclusive economic zone corridor suitable for such 
navigation, enjoy the high seas freedoms of navigation and overflight while 
operating in and over such a corridor. Accordingly, so long as they remain 
beyond the territorial sea, all ships and aircraft of all States have the unencum- 
bered right to navigate through and over such waters subject only to due regard 
for the right of others to do so as well. 

"Straits Used for International Navigation" 

The International Court of Justice has held that the decisive criterion in 
identifying international straits is not the volume of traffic flowing through the 
strait or its relative importance to international navigation, but rather its 
geographic situation connecting, for example, the parts of the high seas, and the 
fact of its being "used for international navigation."" This geographical ap- 
proach is reflected in both the Territorial Sea Convention and the 1982 LOS 
Convention. The United States holds that all straits susceptible of use for 
international navigation are included within that definition. The geographical 
definition appears to contemplate a natural and not an artificially constructed 
canal, such as the Suez Canal. Efforts to define "used for international naviga- 
tion" with greater specificity have failed. 

Navigational Regimes of Particular Straits 

The U.S. position on navigation through international straits and its response to 
excessive claims can best be illustrated by looking at particular international straits. 
The following examples, however, do not include all straits the United States 
considers subject to the transit passage or nonsuspendable innocent passage regimes: 

Aland 

When it signed the 1982 Law of the Sea Convention, Finland declared in 
part that: 

It is the understanding of the Government of Finland that the exception from the 
transit passage regime in straits provided for in article 35(c) of the Convention is 
applicable to the strait between Finland (the Aland islands) and Sweden. Since in 



International Straits 183 

that strait the passage is regulated in part by a longstanding international conven- 
tion in force, the present legal regime in that strait will remain unchanged after 
the entry into force of the Convention. 37 

Sweden made a similar claim when signing the LOS Convention. 

In claiming Aland's Hav, the 16 mile wide entrance to the Gulf of Bothnia, 
as an exception to the transit passage regime, Sweden and Finland relied on the 
fact that passage in that strait is regulated in part by the Convention relating to 
the Non-fortification and Neutralization of the Aland Islands. It should be 
noted that under Article 4. II of this Convention, the territorial sea of the Aland 
Islands extends only "three marine miles" from the low water line and in no 
case extends beyond the outer limits of the straight line segments set out in 
Article 4.1 of the Convention. The Convention is therefore not applicable to 
the remaining waters that form the international strait. The United States, which 
is not a party to this Convention, has never recognized this strait as falling within 
Article 35(c) of the Law of the Sea Convention. 

Bab el Mandeb 

This strategically important strait links the Red Sea and the Suez Canal with 
the Gulf of Aden and the Arabian Sea {see Map 24). It is about 14.5 miles wide 
at its narrowest part of the passage. When it signed the Law of the Sea 
Convention, the Yemen Arab Republic declared that warships and warplanes 
must obtain the prior agreement of the Yemen Arab Republic before passing 
through or over its "territorial waters," including international straits. The 
United States Government protested as follows: 

. . . the Government of the Yemen Arab Republic may not legally condition the 
exercise of the right of transit passage through or over an international strait, such 
as Bab-el-Mandeb, upon obtaining prior permission. Transit passage is a right that 
may be exercised by ships of all nations, regardless of type or means of propulsion, 
as well as by aircraft, both state and civil. While warplanes and other state aircraft 
normally require prior authorization before overflying another State's territory, 
authorization is not required for the exercise of the right of straits transit passage 
under customary law as reflected in article 32 of the Convention. 

For the above reasons, the United States cannot accept the claim of authority by 
the Government of the Yemen Arab Republic to condition the exercise of the 
right of innocent passage by warships or nuclear-powered ships or to condition 
the exercise of the right of transit passage by any ships or warplanes upon prior 
authorization. Accordingly, the United States reserves its rights and those of its 
nationals in this regard. 42 

Bosporus and Dardanelles 

These straits, also known as the Turkish Straits, connect the Aegean Sea and 
the Black Sea via the Sea of Marmara. The Bosporus connects the Black Sea 



1 84 Excessive Maritime Claims 



Map 24 



Strait of 
Bab el Mandeb 

Hypothetical equidistant line 

International boundary 




Djibouti 



Names and boundary representation are not necessarily outhoritative 



International Straits 185 

with the Sea of Marmara, while the Dardanelles connects the Aegean Sea with 
the Sea of Marmara. The Bosporus is about 17 miles long and varies in width 
between one-third and 2 miles. The Dardanelles is about 35 miles long, its width 
decreases from 4 miles at the Aegean to about 0.7 miles at its narrowest, and its 
depth varies from 160 to 320 feet. The Sea of Marmara is about 140 miles long. 

The Turkish Straits are governed by the Montreux Convention of July 20, 
1936, and therefore fall under the Article 35(c) exception of the LOS 
Convention which states that the legal regime of straits regulated in whole or in 
part by a long-standing international convention in force is not altered by the 
LOS Convention. Under the Montreux Convention, merchant vessels, what- 
ever their cargo or flag, enjoy complete freedom of transit, day or night. Pilotage 
and towage are optional. The passage of warships of Black Sea and non-Black 
Sea States is restricted in different ways depending on the type of warship and 
whether or not Turkey is a belligerent. There is no right of international 
overflight of the Turkish Straits. 

Gibraltar 

This strait connects the Atlantic Ocean to the Mediterranean (see Map 25). 
It is 36 miles long and narrows to less than 8 miles wide at its narrowest point. 
Upon signing the LOS Convention in 1984, Spain made several claims of coastal 
State authority over aircraft exercising the right of transit passage over straits used 
for international navigation and of coastal State pollution control authority over 
vessels exercising the right of transit passage in straits used for international 
navigation. The United States protested in 1985 as follows: 

The Government of the United States notes the declaration by the Govern- 
ment of Spain claiming the right of a coastal State to apply to aircraft exercising 
the right of transit passage coastal state air regulations so long as they do not impede 
transit passage. The Government of the United States wishes to state its view that 
this declaration is inconsistent with customary international law as reflected in the 
1982 Convention. Civil aircraft exercising the right of transit passage shall observe 
the rules of the air established by the International Civil Aviation Organization. 
Those matters as to which a coastal State may properly adopt laws and regulations 
regarding transit passage do not include air regulations. 

The Government of the United States also notes the declaration of the 
Government of Spain that, with regard to article 39, paragraph 3, the word 
"normally" is understood to mean "except in cases of force majeure or distress." 
The Government of the United States wishes to point out that state aircraft are 
not subject to the provisions of the Chicago Convention nor to any rules, 
including rules of the air, issued under the Convention or by the International 
Civil Aviation Organization. The Chicago Convention requires only that state 
aircraft operate at all times with due regard for the safety of navigation of civil 
aircraft. Article 39, paragraph 3 of the 1982 Law of the Sea Convention is 
consistent with this principle and leaves to each State the discretion to determine 



1 86 Excessive Maritime Claims 



Map 25 



Strait of Gibraltar 




Nomes ond boundary representations are not necessorily outhoritotive 



International Straits 1 87 

the circumstances under which its state aircraft will comply with International 
Civil Aviation Organization rules of the air, when exercising the right of transit 
passage. Although a state aircraft would not be obliged to comply with such rules 
in cases of force majeure or distress, these are not the only circumstances in which 
a state aircraft would not be obliged to comply with such rules. In this respect, 
therefore, the declaration of the Government of Spain is not consonant with the 
well-established international law reflected in the 1982 Law of the Sea Conven- 
tion. 

The Government of the United States further notes the declaration of the 
Government of Spain that it considers article 42, paragraph 1 of the 1982 Law of 
the Sea Convention not to prevent the coastal State from applying to foreign-flag 
vessels in transit passage coastal State laws and regulations giving effect to generally 
accepted international regulations for the prevention, reduction and control of 
pollution. In this regard, the Government of the United States wishes to point 
out that the coastal State may not apply to vessels exercising the right of transit 
passage its laws and regulations, except such types of laws and regulations as are 
enumerated in the 1982 Law of the Sea Convention. The only laws and regulations 
with respect to the prevention, reduction and control of pollution that may be 
applied to vessels exercising the right of transit passage are those giving effect to 
applicable international regulations regarding the discharge of oil, oily wastes and 
other noxious substances in the strait. 

In addition, the Government of the United States notes that the Government of 
Spain considers article 221 of the 1982 Law of the Sea Convention not to deprive the 
coastal State of a strait used for international navigation of its powers, recognized in 
international law, in the case of casualties referred to in that article. The Government 
of the United States agrees that, in the event of maritime casualties, a coastal State of 
a strait used for international navigation may, within its territorial sea, take reasonable 
actions in response to pollution or a threat of pollution that may reasonably be expected 
to result in major harmful consequences. In this regard however the Government of 
the United States wishes to point out that such rights of the coastal State do not extend 
to the impeding or suspending of the right of transit passage through a strait used for 
international navigation. 



The Government of the United States wishes to inform the Government of 
Spain that it reserves its rights and those of its nationals with respect to all the 
matters discussed in this communication. In light of our common interests in 
maritime issues, the Government of the United States would welcome the 
opportunity to meet with the Government of Spain in technical discussions on 
these and related matters. 47 

The referenced Spanish declarations stated: 



1 88 Excessive Maritime Claims 

2. It is the Spanish Government's interpretation that the regime established in 
Part III of the Convention is compatible with the right of the coastal State to issue 
and apply its own air regulations in the air space of the straits used for international 
navigation so long as this does not impede the transit passage of aircraft. 

3. With regard to article 39, paragraph 3, it takes the word "normally" to mean 
"except in cases of force majeure or distress." 

4. With regard to article 42, it considers that the provisions of paragraph 1(b) do 
not prevent it from issuing, in accordance with international law, laws and 
regulations giving effect to generally accepted international regulations. 



6. It interprets the provisions of article 221 as not depriving the coastal state of a 
strait used for international navigation of its powers, recognized by international 
law, to intervene in the case of the casualties referred to in that article. 

In conveying the need for this protest, the State Department explained to 
American Embassy Madrid: 

Declarations 2 and 3 are objectionable, because they attempt to impose upon 
aircraft in general, and state aircraft (military, customs and police aircraft) in 
particular, obligations that the customary law reflected in the Convention neither 
imposes nor permits. Declaration number 2 claims the right to require aircraft of 
other countries exercising the right of transit passage to comply with Spanish 
regulations so long as such regulations do not have the effect of impeding transit 
passage. While the coastal State does have an obligation not to impede transit 
passage, it is also limited in the types of regulations it may impose on such aircraft, 
whether or not the regulations actually impede transit passage. Declaration 
number 2 phrases the coastal State's right in this regard too broadly. Declaration 
number 3 is even more clearly objectionable, because it effectively claims that 
state aircraft — which are not subject to rules of the air promulgated by the 
International Civil Aviation Organization (ICAO) — must comply with such rules 
while engaging in transit passage, unless they are prevented from doing so because 
they are in distress. This assertion is not only contrary to the language of the 1982 
LOS Convention, but also to over 40 years of ICAO practice under the Chicago 
Convention. Article 39, para. 3 of the 1982 LOS Convention states that state 
aircraft shall "normally" comply with ICAO rules of the air, preserving the 
discretion of the aircraft's state of registry. At UNCLOS III, Spain failed in an 
attempt to have the word "normally" deleted; in consequence, declaration 
number 3 attempts to do the next best thing. 

Declarations 4 and 6 involve coastal State rights regarding pollution control 
regulation and activities in international straits. Article 42 of the LOS Convention 
permits coastal States to impose upon vessels exercising the right of transit passage 
pollution control legislation that gives effect to "applicable international regula- 
tions" regarding certain substances, including oil. Spain's declaration number 4 






International Straits 189 

declares that article 42 does not preclude it from also applying to such vessels 
legislation that gives effect to "generally accepted international regulations." The 
difference, of course, is that regulations that are "generally accepted" because a 
number of States are parties to the relevant conventions may not be "applicable" 
to a particular vessel because its flag State is not a party. The distinction is a real 
one that appears elsewhere in the Convention, and the fact that article 42 speaks 
only of the coastal State giving effect to the more limited category of "applicable" 
international regulations implies rather clearly that the coastal State does not have 
the right to require transiting vessels to comply with the broader category of 
"generally accepted international regulations." Declaration number 6 is not, per 
se, inaccurate, but its implications are such that an observation, if not an objection, 
must be made. Simply stated, declaration number 6 seeks to clarify the rights of a 
coastal State to take, within territorial seas forming an international strait, the same 
sort of pollution prevention and clean-up actions respecting a foreign-flag vessel 
that it could take even on the high seas, if there were a grave and imminent danger 
of pollution damage to the coastal State. The United States accepts this position 
in principle, but must make sure that Spain does not interpret its rights in this 
regard as extending to the suspension of the right of transit passage for other vessels 
nor to any right on the part of Spain to require transiting foreign-flag vessels to 
participate in clean-up operations. 49 

Hormuz 

The Strait of Hormuz provides the sole entrance and exit of the Persian Gulf 
(see Map 26). Iran and Oman are the riparian States to the strait. When signing 
the LOS Convention in 1982, Iran made a declaration stating: 

it seems natural . . . that only States parties to the Law of the Sea Convention shall 
be entitled to benefit from the contractual rights created therein. The above 
considerations pertain specifically (but not exclusively) to the following: The right 
of transit passage through straits used for international navigation. 51 

In response, the United States commented upon the legal status of the right 
of transit passage of international straits stating: 

A small number of speakers [e.g., Iran, 17 Official Records 106, at para. 69] 
asserted that . . . transit passage is a "new" right reflected in the Convention 
adopted by the Conference. To the contrary, long-standing international practice 
bears out the right of all States to transit straits used for international naviga- 
tion . . . Moreover, these rights are well established in international law. Con- 
tinued exercise of these freedoms of navigation and overflight cannot be denied 
a State without its consent. 52 

The policy of freedom of navigation through the Strait of Hormuz was 
reiterated by President Reagan on several occasions. At a news conference on 
February 22, 1984, the following exchange occurred: 



190 Excessive Maritime Claims 



Map 26 



Strait of Hormuz 

12 nautical mile line 

Claimed strait baseline 

Iran-Oman continental 

shelf boundary 



\ I R / 

'■A -o \ 


I N 

ENLARGED 
AREA 


< 




/s&te// 




U.A.E. '"" 
SAUDI 




ARABIA 


r* 


OMAN^i 


^ ••/*- Arabian 
YEMEN .'■f>*^ Sea 



IRAN 




International Straits 1 91 

Q. The war between Iraq and Iran is heating up in a rather perilous way, and 
I'd like to ask what the depth of your concerns are about the possibility that this 
war would lead to the closing of the Strait of Hormuz and cut off the supply of 
oil to Japan, Western Europe, and ourselves, and to what lengths you're prepared 
to go to keep the strait open. 

A. What you have just suggested — Iran, itself, had voiced that threat some 
time ago, that if Iraq did certain things, they would close the Strait of Hormuz. 
And I took a stand then and made a statement that there was no way that we — and 
I'm sure this is true of our allies — could stand by and see that sealane denied to 
shipping, and particularly, the tankers that are essential to Japan, to our Western 
allies in Europe, and, to a lesser extent, ourselves. We're not importing as much 
as they require. But there's no way that we could allow that channel to be closed. 

And we've had a naval force for a long time, virtually permanently stationed 
in the Arabian Sea, and so have some of our allies. But we'll keep that open to 
shipping. 53 

On April 30, 1987, Iran (via the Algerian Embassy in Washington) delivered 
a Diplomatic Note concerning the right of transit passage through the Strait of 
Hormuz in the context of an alleged violation of claimed Iranian territorial 
waters. On August 17, 1987, the United States asked Algeria to pass the following 
reply to the Iranian Ministry of Foreign Affairs: 

the United States . . . particularly rejects the assertions that the . . . right of transit 
passage through straits used for international navigation, as articulated in the [1982 
Law of the Sea] Convention, are contractual rights and not codifications of existing 
customs or established usage. The regimes of . . . transit passage, as reflected in 
the Convention, are clearly based on customary practice of long standing and 
reflect the balance of rights and interests among all States, regardless of whether 
they have signed or ratified the Convention. 

.... The United States rejects, as well, any claim by Iran of a right to interfere 
with any vessel's lawful exercise of the right of transit passage in a strait used for 
international navigation. 

Kuril Straits 

Etorofu Strait, In response to a Soviet protest of the November 30, 
1984, transit by USS Sterett and USS John Young of the Etorofu Strait 
separating the Hamemais islands (occupied by the Soviet Union — now 
Russia — and claimed by Japan), the United States replied in a diplomatic note 
which read as follows: 

The Embassy of the United States of America refers the USSR Ministry 
of Foreign Affairs to Ministry of Foreign Affairs Note Number 81 /USA of 



1 92 Excessive Maritime Claims 

December 3, 1984 concerning the transit of the Etorofu Strait by vessels of the 
United States Navy. 

The Embassy wishes to state that on November 30, 1984, the USS Sterett and 
the USS John Young were, when navigating through the Etorofu Strait, exercising 
the right of transit passage in accordance with international law. Note 81 /USA 
of December 3, 1984 implies that the right of passage of foreign warships through 
straits such as Etorofu Strait is limited to innocent passage. The United States 
Government rejects this implication, since Etorofu Strait is one used for interna- 
tional navigation between one part of the high seas or an exclusive economic zone 
and another part of the high seas or an exclusive economic zone; the strait is 
therefore subject to the regime of transit passage. 

Moreover, the United States Government rejects the claim of the Soviet Union 
that it may lawfully restrict transit passage of foreign warships through straits of 
this type, or innocent passage of foreign warships through the Soviet territorial 
sea in other coastal areas, to a few specified locations. The regulations referred to 
in Note 81 /USA have the effect of hampering both transit passage and innocent 
passage and therefore contravene international law. 

As regards the claim of the USSR that the waters in question are territorial 
waters of the USSR, the Ministry of Foreign Affairs is referred to the diplomatic 
note of the United States Government dated May 23, 1957. In sum, the allegations 
contained in Note 81 /USA of December 3, 1984 are unacceptable, since they 
have no legal foundation. 

Golovnina Strait. In response to a Soviet protest of the June 8, 1986 transit 
by USS Francis Hammond of Golovnina Strait separating two other southern Kuril 
islands (also occupied by the Soviet Union — now Russia — and claimed by 
Japan), the United States replied in a diplomatic note which read as follows: 

During the incident in question, the USS Francis Hammond was exercising the 
right of transit passage through a strait used for international navigation in 
accordance with customary international law as reflected in Part III of the 1982 
United Nations Convention on the Law of the Sea. The strait involved in this 
incident — Golovnina Strait — constitutes a strait used for international navi- 
gation and is subject to the regime of transit passage. The transit of the USS Francis 
Hammond through the strait was fully consistent with the regime of transit passage, 
and did not threaten the sovereignty, territorial integrity, or political independence 
of the Soviet Union. The United States notes the inference in the Ministry's 
statement [of June 11, 1986] that the innocent passage of foreign warships in the 
Soviet territorial sea may only be exercised along routes commonly used for 
international navigation and that, in the vicinity of the Kuril Islands, the only route 
is that through the fourth Kuril strait. The United States rejects the Ministry's 
suggestion. The applicable right of passage through straits such as these is the right 
of transit passage, not the right of innocent passage. 



International Straits 1 93 

The United States further notes that all states may exercise the right of innocent 
passage through the territorial sea of other states if such passage is consistent with 
the definition of that passage, i.e. continuous and expeditious transit for the 
purpose of traversing the territorial sea without entering internal waters or calling 
at a roadstead or port facility outside internal waters; or proceeding to or from 
internal waters on a call at such roadstead or port facility. In any case, the incident 
in question occurred in the Golovnina Strait, an international strait in which the 
right of straits transit passage, and not innocent passage, applies. Although an 
international strait must by definition consist wholly or partly of territorial waters, 
it is the right of transit passage, and not innocent passage, which applies in those 
waters unless the exceptions contained in the Law of the Sea Convention articles 
38(1) or 45 apply, in which case non-suspendable innocent passage applies. 

The United States has at no time acquiesced in the proposition that the fourth 
Kuril strait constitutes the only route which may be used for international 
navigation in the vicinity of the Kuriles. 

As the Golovnina Strait constitutes an international strait as defined in article 
37 of the Law of the Sea Convention, the principal justification for not applying 
the right of transit passage to it would be that there exists a strait of similar 
convenience in accordance with the Law of the Sea Convention article 38(1). As 
article 38(1) provides, that justification can only be invoked if the strait to which 
transit passage is not to be applied is formed by an island of a state bordering the 
strait and its mainland. It is the view of the United States that the Golovnina Strait 
does not constitute such a strait, in that it does not fall between the mainland and 
an island adjacent thereto. The USSR therefore has no legal basis on which to 
insist that international navigation pass only through the fourth Kuril strait. Nor 
does the Golovnina Strait constitute an article 45(l)(b) strait, i.e. a strait between 
a part of the high seas or an exclusive economic zone and the territorial sea of a 
foreign state. 

The United States further wishes to underscore that a strait used for interna- 
tional navigation derives that status not from coastal state legislation which 
designates it as such, but rather as a direct result of international maritime patterns 
which establish state practice. If this were not the case, the very purpose of the 
customary international legal regime of straits transit passage, providing for 
automatic, predictable and impartial exercise of international navigation freedoms, 
would be vitiated. For these reasons the United States does not recognize the 
validity of the USSR's designation of the fourth Kuril strait as the only Kuril strait 
for international navigation. 

For the above reasons, the United States rejects the June 1 1 protest of the Soviet 
Union regarding the transit of USS Hammond through the Golovnina Strait and 
maintains that the transit was a lawful exercise of the customary law right of straits 
transit passage. Accordingly, it reserves its rights and those of its nationals to 
continue to exercise that right in the Golovnina Strait, and in all straits used for 
international navigation. 



194 Excessive Maritime Claims 

In rejecting this protest, the USG notes the fact that notwithstanding the 
signature by the USSR of the 1982 United Nations Convention on the Law of 
the Sea and the recognition by the United States that the navigation articles of 
that Convention are generally reflective of customary international law, the USSR 
and the U.S. continue to display significant unresolved differences in their 
interpretation of the law of the sea, particularly the right of innocent passage and 
straits transit passage. The U.S. Government invites the Government of the USSR 
to provide a more comprehensive analysis of the legal basis for its assertion of the 
right to deny transit passage in the international straits between the Kuril islands. 56 

Magellan 

The 310 mile long Strait of Magellan connects the Atlantic and Pacific Oceans 
at the southern tip of South America. Navigation through the Strait of 
Magellan is governed by article V of the 1881 Boundary Treaty between 

CO 

Argentina and Chile, which states that the Straits are neutralized forever, and 
free navigation is assured to the flags of all nations. Article 10 of the 1984 Treaty 
of Peace and Friendship between Argentina and Chile reaffirms that status: 
"... The delimitation agreed upon herein, in no way effects the provisions of 
the Boundary Treaty of 1881, according to which the Straits of Magellan are 
perpetually neutralized and freedom of navigation is assured to ships of all flags 
. . ."In concluding that the Strait of Magellan therefore falls under the Article 
35(c) exception of the LOS Convention, the Department of State advised 
American Embassy Santiago, Chile, that: 

This long-standing guarantee of free navigation for all vessels [in the 1881 Treaty] 
has been amply reinforced by practice, including practice recognizing the right of 
aircraft to overfly. . . . Essentially, the USG position would be that the 1881 
Treaty and over a century of practice have imbued the Strait of Magellan with a 
unique regime of free navigation, including a right of overflight. That regime has 
been specifically recognized and reaffirmed by both Argentina and Chile in the 
Beagle Channel Treaty. Hence, the United States and other States may continue 
to exercise navigational and overflight rights and freedoms in accordance with this 
long-standing practice. 

Malacca and Singapore 

The Straits of Malacca and Singapore extend for approximately 600 miles (see 
Map 27). The Strait of Malacca is located between the east coast of the Indonesian 
island of Sumatra and the west coast of peninsular, or west, Malaysia. The 
Singapore Strait is located south of the island of Singapore and the southeastern 
tip of peninsular Malaysia, and north of the Indonesian Rian Islands. The straits 
provide the shortest sea route between the Indian Ocean (via the Andaman Sea) 
and the Pacific Ocean (via the South China Sea). 

At the broad western entrance to the Strait of Malacca, the littoral coasts of 
Indonesia and Malaysia are separated by about 200 miles. The strait, however, 
begins to funnel in a southeasterly direction. At 3°N and south of One Fathom 



Map 27 



International Straits 1 95 







Andaman 
Sea 



Strait of 
Malacca Region 



196 Excessive Maritime Claims 

Bank, the territorial seas of Indonesia and Malaysia overlap. The narrowest part 
of the Strait of Malacca is at the southwestern tip of the Malay Peninsula — 8.4 
miles wide, and, given the shallow depths, is much narrower for deep draught 
vessels. 

The narrowest breadth of the Singapore Strait is only 3.2 miles and through- 
out its length is constantly less than 15 miles wide (the combined territorial seas 
claimed by Indonesia (12 miles) and Singapore (3 miles)). At its eastern outlet 
into the South China Sea, where it is bounded solely by Malaysia and Indonesia, 
the sea passage is approximately 11.1 miles wide. 

The governing depth of the Strait of Malacca is less than 75 feet, with a tidal 
range between 4.6 feet at the eastern outlet of the Singapore Strait and 12.5 feet 
at the western entrance to the Strait of Malacca. 

On April 29, 1982, Ambassador James L. Malone, United States Repre- 
sentative to the Third United Nations Conference on the Law of the Sea, 
submitted a letter to the President of the Conference "confirming] the contents*' 
of a letter dated April 28, 1982, from the Chairman of the Malaysian delegation 
on behalf of the delegations of Indonesia, Malaysia and Singapore, regarding 
their statement concerning the purpose and meaning of Article 233 of the LOS 
Convention in its application to the Straits of Malacca and Singapore. The 
Malaysian statement reads: 

Following consultations held among the delegations of States concerned, a 
common understanding regarding the purpose and meaning of article 233 of the 
draft convention on the law of the sea in its application to the Straits of Malacca 
and Singapore has been confirmed. This understanding, which takds cognizance 
of the peculiar geographic and traffic conditions in the Straits, and which 
recognizes the need to promote safety of navigation and to protect and preserve 
the marine environment in the Straits, is as follows: 

1. Laws and regulations enacted by States bordering the Straits under article 
41 , paragraph 1 (a) of the convention, refer to laws and regulations relating to traffic 
separation schemes, including the determination of under keel clearance for the 
Straits provided in article 41. 

2. Accordingly, a violation of the provisions of resolution A.375(X), by the 
Inter-Governmental Maritime Consultative Organization adopted on 14 Novem- 
ber 1977, whereby the vessels referred to therein shall allow for an under keel 
clearance of at least 3.5 metres during passage through the Straits of Malacca and 
Singapore, shall be deemed, in view of the particular geographic and traffic 
conditions of the Straits, to be a violation within the meaning of article 233. The 
States bordering the Straits may take appropriate enforcement measures, as 
provided for in article 233. Such measures may include preventing a vessel 
violating the required under keel clearance from proceeding. Such action shall 
not constitute denying, hampering, impairing or suspending the right of transit 
passage in breach of articles 42, paragraph 2, or 44 of the draft convention. 



International Straits 197 

3. States bordering the Straits may take appropriate enforcement measures in 
accordance with article 233, against vessels violating the laws and regulations 
referred to in article 42, paragraph 1(a) and (b) causing or threatening major 
damage to the marine environment of the Straits. 

4. States bordering the Straits shall, in taking the enforcement measures, 
observe the provision on safeguards in Section 7, Part XII of the draft 
convention. 

5. Articles 42 and 233 do not affect the rights and obligations of States 
bordering the Straits regarding appropriate enforcement measures with respect to 
vessels in the Straits not in transit passage. 

6. Nothing in the above understanding is intended to impair: 

(a) the sovereign immunity of ships and the provisions of article 236 as 
well as the international responsibility of the flag State in accordance with 
paragraph 5 of article 42; 

(b) the duty of the flag State to take appropriate measures to ensure that 
its ships comply with article 39, without prejudice to the rights of States 
bordering the Straits under Parts III and XII of the draft convention and the 
provisions of paragraphs 1, 2, 3 and 4 of this statement. 2 

The International Maritime Organization has established other rules for vessels 
navigating the Straits of Malacca and Singapore, including traffic separation 
schemes at One Fathom Bank and in the Singapore Strait and deep water routes 
forming part of the eastbound traffic lane of the traffic separation scheme in the 
Singapore Strait. 

Messina 

The Strait of Messina separates the Italian island of Sicily from Italy's mainland 
(see Map 28). This strait is considered an Article 38(1) strait under the terms of 
the LOS Convention which provides an exemption from the transit passage 
regime for those straits connecting one part of the high seas/EEZ and another 
part of the high seas/EEZ where the strait is formed by an island of a State 
bordering the strait and its mainland and there exists seaward of the island a route 
through the high seas or EEZ of similar convenience with respect to navigational 
and hydrographical characteristics. 

Effective April 3, 1985, the Government of Italy closed the strait to vessels 
10,000 tons and over carrying oil and other pollutants. This action was taken 
following a collision at sea resulting in an oil spill in the area. The United States 
submitted a diplomatic note to Italy on April 5, 1985, making the following 
observations: 



198 Excessive Maritime Claims 



Map 28 



Strait of Messina 




Area 
enlarged 
at right 



Tyrrhenian Sea 



Pantelleria 
O (ITALY) 




Mediterranean 
Sea 



O MALTA 



International Straits 199 

As the Government of the United States understands it, this decree is not 
intended to apply to warships or other governmental ships on non-commercial 
service exercising the right of innocent passage. 

It is the understanding of the Government of the United States that this 
prohibition on navigation through the Strait of Messina by specified vessels ... is 
intended to give the Government of Italy time in which to formulate proposals 
for the regulation of maritime traffic in the strait. 

The Government of the United States wishes to make clear that the Strait of 
Messina is a strait used for international navigation, to which, in accordance with 
customary international law as reflected of the 1982 United Nations Convention 
on the Law of the Sea, the regime of non-suspendable innocent passage applies. 
The regime of innocent passage is one that may be exercised by vessels of all States, 
regardless of type or cargo. By purporting to prohibit navigation through the Strait 
of Messina by vessels of specified size carrying specified cargo, the Government 
of Italy appears to be attempting to suspend the right of innocent passage for such 
vessels, in contravention of long-settled customary and conventional international 
law. The Government of the United States therefore reserves its rights and those 
of its nationals in this regard. . . . 

The Government of the United States recognizes that, in accordance with 
international law as reflected in the 1982 United Nations Convention on the Law of 
the Sea, the coastal state has certain authority to prescribe sea lanes and traffic separation 
schemes that must be used by vessels exercising the right of innocent passage, especially 
tankers and other ships carrying dangerous substances. The coastal state does not, of 
course, have authority respecting areas of the high seas. To the extent that a coastal 
state has such authority in its territorial sea the Government of the United States notes 
the important role to be played by the International Maritime Organization in the 
designation of such sea lanes and the prescription of traffic separation schemes. The 
Government of the United States notes that the decree announced by the Government 
of Italy refers to regulation 8 of chapter V of the annex to the International Convention 
for the Safety of Life at Sea, 1974, which reiterates the importance of the International 
Maritime Organization in this process. 

The Government of the United States trusts that, in considering what traffic 
regulations might be appropriate in the Strait of Messina, the Government of Italy 
will give due weight to all relevant factors, including the acknowledged pre- 
eminence of the International Maritime Organization. The Government of the 
United States would be pleased to discuss with the Government of Italy ap- 
propriate measures that might be adopted to lessen the risk of environmental 
damage in the Strait of Messina. The Government of the United States must, 
however, protest the recently announced decree, which has the unlawful effect 
of suspending innocent passage for certain types of vessels in a strait through which 
innocent passage may not be suspended. 

Additional information provided to American Embassy Rome for use in 
delivering the foregoing note included the following: 



200 Excessive Maritime Claims 

The USG [United States Government] understands that the GOI [Government 
of Italy] has prohibited navigation, for at least 45 days beginning 3 April 1985, 
through the Strait of Messina by oil tankers and other vessels carrying hazardous 
substances, if they are over 10,000 tons. 

The USG understands that this action may be related to a recent maritime 
collision and oil spill in the area. 

The USG recognizes that some inconvenience to navigation by certain vessels 
may be an unavoidable result of the presence of oil spilled during this unfortunate 
incident and the efforts to clean up such oil. 

The prohibition appears to be at least a temporary restriction on passage by 
certain types of vessels until the GOI can reach conclusions regarding long-term 
controls over navigation by such vessels in the Strait of Messina. 

The USG wishes to note that the Strait of Messina is subject to the regime of 
non-suspendable innocent passage under international law as reflected in both the 
1982 LOS Convention and the 1958 Geneva Convention on the Territorial Sea 
and the Contiguous Zone. 

The USG is of the opinion that this prohibition of passage through the Strait 
of Messina by the GOI is not an appropriate exercise of the GOI's right to impose 
upon vessels in innocent passage laws relating to the preservation of the environ- 
ment and the prevention, control and reduction of pollution. Accordingly, the 
USG considers that such a prohibition constitutes a suspension of the right of 
innocent passage by such vessels, in contravention of customary and conventional 
international law. . . . 

The USG recognizes that the GOI may need to protect significant environ- 
mental interests from possible pollution damage caused by vessels transiting the 
Strait of Messina. 

The USG strongly urges that, if the GOI considers it necessary to take further 
steps to regulate tanker traffic through the strait in order to avoid the danger of 
pollution damage, the GOI should do so in an appropriate multilateral forum, 
rather than by unlawfully attempting to suspend or interfere with the right of 
innocent passage. 67 

Northeast Passage 

The Northeast Passage is situated in the Arctic Ocean, north of Russia and 

/TO 

includes the Dmitry, Laptev and Sannikov Straits. The United States 
conducted oceanographic surveys of the area during the summers of 1963 and 
1 964. During the 1 963 survey, USCGC Northwind (WAGB-382) collected data 
in the Laptev Sea; during the following summer, USS Burton Island (AGB-1) 
surveyed in the East Siberian Sea. On July 21, 1964, the Soviet Ministry of 



International Straits 201 

Foreign Affairs presented to American Embassy Moscow the following aide 
memoire regarding the Burton Island voyage: 

The Chief Administration of the Hydro Meteorological Service of the Council 
of Ministers, USSR received a communication from the Embassy of the USA on 
the forthcoming Arctic sailing of the US military ice-breaker Burton Island and 
the request to transmit to the ship information on hydrometeorological conditions. 

Precise information on the Burton Island's route has not been received from 
the Embassy. In the event that this ship intends to go by the northern seaway 
route, then it is necessary it take into consideration the following: 

The Northern seaway route is situated near the Arctic coast of the USSR. This 
route, quite distant from international seaways, has been used and is used only by 
ships belonging to the Soviet Union or chartered in the name of the Northern 
Seaways, the opening up, equipping, and servicing of which the Soviet side for a 
period of decades has spent significant funds, and it is considered an important 
national line of communication of the USSR. It should be noted that the seas, 
through which the northern seaway route passes, are noted for quite difficult ice 
and navigational conditions. Mishaps of foreign ships in this line of communica- 
tions could create for the USSR as well as for a bordering state, a series of 
complicated problems. Therefore the Soviet Union is especially interested in all 
that deals with the functioning of the given route. 

It should also be kept in mind that the northern seaway route at some points 
goes through Soviet territorial and internal waters. Specifically, this concerns all 
straits running west and east in the Karsky Sea, inasmuch as they are overlapped 
two-fold by Soviet territorial waters, as well as by the Dmitry, Laptev and 
Sannikov Straits, "which unite the Laptev and Eastern Siberian Seas and belong 
historically to the Soviet Union. Not one of these stated straits, as is known, serves 
for international navigation. Thus over the waters of these straits the statute for 
the protection of the state borders of the USSR fully applies, in accordance with 
which foreign military ships will pass through territorial and enter internal sea 
waters of the USSR after advance permission of the Government of the USSR, 
in accordance with stipulated regulations for visiting by Foreign Military ships of 
territorial and internal sea waters of the USSR published in "Navigation Notifica- 
tions" (Izvesticheniyakh Moreplavatelyan). In accordance with these regulations 
the agreement for entry of foreign military vessels is requested through the 
Ministry of Foreign Affairs USSR not later than 30 days before the proposed entry. 

Although the notification of the proposed sailing of the American ice-breaker 
Burton Island was not received in the fixed period, the Soviet side in this specific 
case, is ready, as an exception, to give permission for the passing of the vessel 
Burton Island through the territorial and internal waters of the USSR in the 
aforementioned Arctic Straits. In this regard it should not be forgotten that the 
American vessel will fulfill requirements, called for by the regulations for foreign 
military ships, visiting territorial and internal maritime waters of the USSR and 
specifically article 16 of the cited regulations. At the same time the need is 



202 Excessive Maritime Claims 

emphasized for the strict observance in the future of all instructions of regulations 
for foreign military vessels visiting territorial and internal maritime waters of the 
USSR. 

Regarding the inquiries of the Embassy on passing to the vessel Burton Island 
information on the hydrometeorological conditions during its Arctic sailing, the 
competent Soviet organizations are willing to fulfill this request and transmit the 
available information. For this, the American side must provide exact data of the 
schedule and route of the Burton Island, as well as data, necessary for the 
establishment of radio contacts with it. 69 

On June 22, 1965, the United States replied in writing stating in part: 

While the United States is sympathetic with efforts which have been made by 
the Soviet Union in developing the Northern Seaway Route and appreciates the 
importance of this waterway to Soviet interests, nevertheless, it cannot admit that 
these factors have the effect of changing the status of the waters of the route under 
international law. With respect to the straits of the Karsky Sea described as 
overlapped by Soviet territorial waters it must be pointed out that there is a right 
of innocent passage of all ships through straits used for international navigation 
between two parts of the high seas and that this right cannot be suspended. This 
is clear from the provisions of the Convention on the Territorial Sea and the 
Contiguous Zone adopted at Geneva in 1958 to which both the United States 
and the Soviet Union are parties. In the case of straits comprising high seas as well 
as territorial waters there is of course an unlimited right of navigation in the high 
seas areas. . . . 

For the reasons indicated the United States must reaffirm its reservation of its 
rights and those of its nationals in the waters in question whose status it regards as 
dependent on the principles of international law and not decrees of the coastal 

state. 70 

Thereafter, Northunnd conducted its transit during July to September of 1965. 
On October 27, 1965, the Soviet Union protested in a note which read as 
follows: 

According to information of competent Soviet authorities, U.S. Coast Guard 
icebreaker, Northwind, during its voyage in the Kara Sea in July-September of 
this year, conducted there explorations of sea bottom and suboceanic area. This 
was also reported in the American press. 

As is well known, bottom and suboceanic area of the Kara Sea, being in 
geological respect the direct continuation of the continental part of the USSR, 
constitutes continental shelf which, pursuant to the 1958 Geneva Convention on 
the Continental Shelf, is subject to the sovereign rights of the USSR. Said 
Convention, to which both the USSR and the USA are parties, provides in article 
5, paragraph 8, that agreement of the littoral State is required for exploration of 
the continental shelf. 



International Straits 203 

Conduct of the above-mentioned explorations of the USSR continental shelf 
in the Kara Sea, without agreement thereto having been obtained from competent 
USSR authorities, constituted a violation of the 1958 Continental Shelf Conven- 
tion. 

The Ministry protests against the unlawful conduct by the American ice- 
breaker of exploration of the Soviet continental shelf in the Kara Sea and expects 
that the Government of the United States will take the necessary steps to prevent 
similar actions. 71 

The United States replied in a note, as follows: 

The Ministry's note referring to the voyage of the United States Coast Guard 
[ice-breaker] Northwind in the Kara Sea during July to September of this year 
charges that the vessel carried on explorations of the seabed of the continental 
shelf without obtaining the permission required by paragraph 8, Article 5 of the 
Convention on the Continental Shelf adopted at Geneva in 1958 to which both 
the United States and the Union of Soviet Socialist Republics are parties. 

The Ministry is misinformed. During its voyage of oceanographic exploration 
in the area the Northwind did take a number of core samplings of the seabed. A 
few of these samplings were taken in the deep which parallels Novaya Zemlya on 
the east and a more extensive sampling of the sea bottom "was done in the deep 
water north of Novaya Zemlya and east of Zemlya Frantsa Iosifa and also in the 
deep water west of Severnaya Zemlya. The data collected during this operation 
■will be made available to the Union of Soviet Socialist Republics through the 
World Data Center System. There was no exploration of the continental shelf in 
the Kara Sea. 



In view of the foregoing the Ministry's protest is rejected as without foundation 
in 



fact. 72 



In 1967, the United States planned an Arctic circumnavigation by the U.S. 
Coast Guard icebreakers Edisto and East Wind, from August 10 to September 
21, 1967. The United States advised the Soviet government of the planned route 
in a note dated August 14, 1967: 

The Department of State wishes to advise the Embassy of the Union of Soviet 
Socialist Republics that two United States oceanographic icebreakers will, as in 
previous years, undertake regular survey operations in the Arctic Ocean in the 
summer of 1967. 

The US Coast Guard icebreakers Edisto and East Wind will conduct ocean- 
ographic research surveys from approximately August 10 to September 21. From 
a point south of Greenland, the ships will proceed eastward on a track running 
north of Novaya Zemlya and Severnaya Zemlya into the Laptov Sea, the East 



204 Excessive Maritime Claims 

Siberian Sea and through the Canadian Archipelago before returning to the 
United States. 

As in previous oceanographic surveys of this sort the operations will be 
conducted entirely in international waters. 73 

The Soviet Union replied on August 25, 1967, with the following note: 

By its aide-memoire of August 16, 1967, US Department of State informed the 
USSR Embassy in Washington of Arctic circumnavigation by US Coast Guard 
icebreakers "Edisto" and "East Wind," stating that they would proceed eastward 
along [a] route north of Navaya Zemlya and Severnaya Zemlya. 

However, according to information of competent Soviet authorities, above 
mentioned American icebreakers have entered the Karsky Sea and are proceeding 
in direction of Vilkitsky Straits, which are territorial waters of the USSR. 

In this connection, the Ministry recalls to the Embassy that navigation by any 
foreign naval vessel through the Straits of Karsky Sea, as well as through Dmitry 
Leptev and Sannikov Straits, is subject to the Statute on the Protection of the 
USSR Borders, under which foreign naval vessels shall pass through territorial and 
internal sea waters of the USSR with prior permission by the Government of the 
USSR to be requested 30 days in advance of passage contemplated. The position 
of the Soviet Government on this question was set forth in detail in USSR MFA's 
aide-memoirs of July 2, 1964 and July 26, 1965. 74 

Earlier that day, the American Embassy in Moscow had sent Note No. 340 
notifying the Ministry of Foreign Affairs that the icebreakers had been blocked 
by ice in passing north of Severnaya Zemlya and, to continue circumnavigation, 
it would be necessary for Eastwind and Edisto to transit Vilkitsky Straits. On 
August 28, 1967, the Chief of the American Section Soviet Ministry of Foreign 
Affairs made an oral demarche on the American Deputy Chief of Mission, as 
reported in a cable to the Department of State: 

Soviet Maritime Fleet had today received communication from U.S. Coast 
Guard icebreaker "Edisto" in which the Commanding Officer informed Soviet 
authorities that "Edisto" and "Eastwind" had encountered ice preventing passage 
to north of Severnaya Zemlya and therefore proposed to effect innocent passage 
through Vilkitsky straits on or about August 31 . Communication from U.S. Coast 
Guard icebreaker also stated that Soviet Ministry of Foreign Affairs had been 
advised of proposed transit of straits. 

Kornienko said that he felt it necessary to remove any misunderstanding which 
might exist in this matter. He said that Ministry of Foreign Affairs had not been 
advised of proposed passage of U.S. icebreakers through straits since notification 
thirty days in advance of attempted passage through Soviet territorial waters, as is 
required by pertinent Soviet regulations, had not been received. 



International Straits 205 

The United States responded in a note delivered 7:30 pm local time, August 
30, 1967 to the Soviet Ministry of Foreign Affairs, Moscow: 

The Embassy of the United States of America refers to the aide-memoire of 
August 24 of the Ministry of Foreign Affairs of the Union of Soviet Socialist 
Republics and to the statement by the Ministry's authorized representative on 
August 28, and, on instructions, strongly protests the position taken by the Soviet 
Government with regard to the peaceful circumnavigation of the Arctic by the 
United States Coast Guard icebreakers "Edisto" and "Eastwind." 

As the Ministry is aware, the circumnavigation by the "Edisto" and "Eastwind" 
was undertaken as a part of regular scientific research operations in the Arctic 
Ocean. The Department of State, as a matter of courtesy, informed the Soviet 
Government of these operations. Owing to unusually severe ice conditions the 
icebreakers failed in their efforts to pass north of Severnaya Zemlya and, accord- 
ingly, on August 24 Embassy informed the Ministry by note that the vessels would 
find it necessary to pass through Vilkitsky Straits in order to continue their voyage. 
Rather than facilitating the accomplishment of this peaceful voyage, the Ministry 
in its aide-memoire of August 24 and particularly in the oral statement of its 
authorized representative on August 28 has taken the unwarranted position that 
the proposed passage of the "Edisto" and "Eastwind" would be in violation of 
Soviet regulations, raising the possibility of action by the Soviet Government to 
detain the vessels or otherwise interfere with their movement. 

These statements and actions of the Soviet Government have created a situation 
which has left the United States Government with no other feasible course but 
to cancel the planned circumnavigation. In doing so, however, the United States 
Government wishes to point out that the Soviet Government bears full respon- 
sibility for denying to United States vessels their rights under international law, 
for frustrating this scientific endeavor and for depriving the international scientific 
community of research data of considerable significance. 



Furthermore, the Statute on Protection of the USSR State Borders, cited in 
the Ministry's aide-memoire of August 24, cannot have the effect of changing the 
status of waters under international law and the rights of foreign ships with respect 
to them. These rights are set forth clearly in the Convention on the Territorial 
Sea and the Contiguous Zone of April 29, 1958, to which the Soviet Union is a 
party. The United States Government wishes to remind the Soviet Government, 
as it has on previous occasions, that there is a right of innocent passage for all ships, 
warships included, through straits used for international navigation between two 
parts of the high seas, whether or not, as in the case of the Vilkitsky Straits, they 
are described by the Soviet Government as being overlapped by territorial waters, 
and that there is an unlimited right of navigation in the high seas areas of straits 
comprising both high seas and territorial seas. 



206 Excessive Maritime Claims 

Moreover, since the Ministry in its aide-memoire of August 24 has referred to 
the Dmitry Laptev and Sannikov Straits, although they are not involved in the 
present case, the United States Government wishes to reiterate its position, stated 
most recently in its aide-memoire of June 22, 1965, that it is not aware of any basis 
for the Soviet claims to these waters. 

The United States Government wishes to emphasize that it regards the conduct 
of the Soviet Government in frustrating this scientific expedition as contrary both 
to international law and to the spirit of international scientific cooperation to 
which the Soviet Government has frequently professed its support. Actions such 
as these cannot help but hinder the cause of developing international under- 
standing and the improvement of relations between our two countries. 76 

On August 31, 1967, the State Department spokesman summarized the 
situation, as follows: 

On August 16 the U.S. Coast Guard announced that the 269-foot Coast Guard 
ice-breakers Edisto and Eastwind planned an 8,000 mile circumnavigation of the 
Arctic Ocean conducting scientific research en route. Their itinerary called for 
them to travel north of the Soviet islands of Novaya Zemlya, Severnaya Zemlya, 
and the New Siberian Islands. 

The planned course was entirely on the high seas and, therefore, the voyage 
did not require any previous clearance with Soviet authorities. Nevertheless, the 
Soviet Government was officially informed of these plans just prior to the public 
announcement. 

However, heavy ice conditions made it impossible for the vessels to proceed 
north of Severnaya Zemlya. On August 24 our Embassy in Moscow notified the 
Soviet Ministry of Foreign Affairs of this situation and stated it would be necessary 
for the two vessels to pass through Vilkitsky Straits south of Severnaya Zemlya in 
order to complete their journey. 

In response the Soviet Ministry of Foreign Affairs made a statement to our 
Embassy that the straits constituted Soviet territorial waters. 

On August 28, as a result of a routine message from the icebreakers to the 
Soviet Ministry of the Maritime Fleet, the Soviet Ministry of Foreign Affairs 
reaffirmed its declaration of August 24 and made it clear that the Soviet Govern- 
ment would claim that passage of the ships through the Vilkitsky Straits would be 
a violation of Soviet frontiers. 

Under these circumstances the United States considered it advisable to cancel 
the proposed circumnavigation. The Edisto has now been ordered to proceed 
directly to Baffin Bay, and the Eastwind was ordered to remain in the area of the 
Kara and Barents Seas for about a month to conduct further oceanographic 
research. 



International Straits 207 

On August 30 our Embassy in Moscow sent a note strongly protesting the 
Soviet position. The note pointed out that Soviet law cannot have the effect 
of changing the status of international waters and the rights of foreign ships 
with respect to them. These rights are set forth clearly in the Convention on 
the Territorial Sea and the Contiguous Zone of April 29, 1958, to which the 
Soviet Union is a party. 

There is a right of innocent passage for all ships, through straits used for 
international navigation between two parts of the high seas, whether or not, 
as in the case of the Vilkitsky Straits, they are described by the Soviet Union 
as being overlapped by territorial waters, and there is an unlimited right of 
navigation in the high seas of straits comprising both high seas and territorial 
waters. Clearly, the Soviet Government, by denying to U.S. vessels their rights 
under international law, has acted to frustrate a useful scientific endeavor and 
thus to deprive the international scientific community of research data of 
considerable significance. 77 

Northwest Passage 

The United States and Canada have a long-standing dispute over the legal 
status of the waters of the Northwest Passage between Davis Strait/Baffin Bay 
and the Beaufort Sea (see Map 29). The United States considers the passage a 
strait used for international navigation subject to the transit passage regime under 
existing international law. Canada considers these waters to be Canadian and 
that special coastal State controls can be applied to the passage, including 
requirements for prior authorization of the transit of all non-Canadian vessels 
and for compliance by such vessels with detailed Canadian regulations. 

U.S. Coast Guard Cutters transited the Northwest Passage in 1952 and 1957. In 
1969, the SS Manhattan, accompanied by the U.S. Coast Guard icebreakers North 
Wind and Staten Island, transited this Passage without having received prior Canadian 
authorization. Following the SS Manhattan transit, in 1970, Canada enacted its Arctic 
Waters Pollution Prevention Act to address the fragile Arctic environment and to 
prevent potential damage by vessel-source pollution. In the same year, the United 
States protested the validity of the law, because of its unlawful interference with 

7Q 

navigational rights and freedoms. 

Transit by USCG Icebreaker Polar Sea, August 1985. In 1985, several 
diplomatic notes were exchanged regarding an upcoming transit of the North- 
west Passage by the U.S. Coast Guard icebreaker Polar Sea. On May 21, 1985 
American Embassy Ottawa informed the Canadian Department of External 
Affairs of the planned transit of the United States Coast Guard Cutter Polar Sea 
in a demarche using guidance provided by the Department of State. Extracts of 
this guidance follow: 

The United States Coast Guard is preparing its summer schedule for icebreaker 
operations in Arctic waters. 



208 Excessive Maritime Claims 



Map 29 



The Northwest Passage 




International Straits 209 

Operational requirements are such that a west coast based icebreaker, the Polar 
Sea, will transit the Panama Canal in order to reach the US east coast and thereafter 
perform icebreaking duties in the vicinity of Thule, Greenland. 

Upon completion of its duties in the Thule area, the Polar Sea will need to 
return to the US west coast, both to be able to participate in testing pursuant to 
the Volpe-Jamieson Agreement and, subsequently, to conduct operations in 
Antarctic waters. 

The limited time available requires the movement from the Thule area to the 
US west coast to be made by navigating through the Northwest Passage. That 
voyage will occur in August of this year. 

So that the Canadian government can share in the benefits of this transit, the 
US Coast Guard will issue to the Canadian Coast Guard an invitation to provide 
on-board participants. 

The United States considers that this transit by the icebreaker Polar Sea will be 
an exercise of navigational rights and freedoms not requiring prior notification. 
The United States appreciates that Canada may not share this position. 

The United States believes that it is in the mutual interests of Canada and the 
United States that this unique opportunity for cooperation not be lost because of 
possible disagreements over the relevant juridical regime. 

The United States believes that the two countries should agree to disagree on 
the legal issues and concentrate on practical matters. 

The United States desires to raise this matter with the Government of Canada 
now, so that we can each begin to make arrangements for Canadian participation 
in the transit. 

The United States considers that this discussion with the Government of 
Canada in the forthcoming invitation to participate in the transit is not inconsistent 
with its juridical position regarding the Northwest Passage and believes that the 
Government of Canada would consider its participation in the transit not to be 
inconsistent "with its juridical position. 



The United States looks forward to the opportunity to have the Canadian Coast 
Guard participate in a voyage that will have significant benefits for both our 
countries. 80 

On June 11, 1985, Canada replied in a diplomatic note restating its position 
that the waters of the Northwest Passage were Canadian internal waters, as 
follows: 



210 Excessive Maritime Claims 

. . . refer to the notification of the proposed transit of the Northwest Passage by 
the United States Coast Guard icebreaker Polar Sea in August of this year, as 
conveyed to the Department of External Affairs by the United States Embassy in 
Ottawa on May 21, 1985. 

The Government of Canada welcomes the United States offer to proceed with 
this project on a cooperative basis and to provide the opportunity for Canadian 
participation in the voyage. 

The waters of the Arctic Archipelago, including the Northwest Passage, are 
internal waters of Canada and fall within Canadian sovereignty. Canada, of course, 
is committed to facilitating navigation through these waters and is prepared to 
work toward this objective in the spirit of cooperation that has long characterized 
the relationship between the Canadian and United States Coast Guards. This is 
the spirit that also underlies the Volpe-Jamieson Agreement, and the Government 
of Canada welcomes the United States reference to this accord as a factor to be 
taken into account in considering the United States proposal. 

The Canadian authorities are prepared to consider any form of cooperation 
with the United States authorities regarding the proposed voyage, including 
on-board participation by Canadian representatives. The United States authorities 
will understand, however, the Canadian Government's concern to ensure that the 
Arctic waters adjacent to the mainland and islands of the Canadian Arctic are 
navigated in a manner that takes cognizance of Canada's responsibility for the 
interests of the Inuit and other inhabitants of the Canadian Arctic and the 
preservation of the peculiar ecological balance that now exists in the water, ice 
and land areas of the Canadian Arctic. 

Given the unique geographical and ecological features of the area, the impact of 
any voyage, particularly any adverse environmental consequences, will affect the 
territory of Canada and of no other country. Such voyages are by their very nature 
extraordinary occurrences and must be carefully planned and coordinated to ensure 
protection of the environment and other related vital interests. Even a voyage that is 
free from incidents causing environmental damage can have other negative effects on 
the Arctic ecology and on the interest of the inhabitants of the area. 



The Government of Canada looks forward to receiving from the United States 
authorities more information with respect of the timing and routing of the 
proposed voyage, as well as the specifications of the Polar Sea. Canada would 
welcome an early opportunity to consult with the United States on all matters 
related to the voyage. * 

The United States replied as follows: 

The United States notes the Canadian statement that the waters of the Arctic 
archipelago, including the Northwest Passage, are internal waters of Canada and 



International Straits 21 1 

fall within Canadian sovereignty. As the Government of Canada is aware, the 
United States does not share this view. For this reason, although the United States 
is pleased to invite Canadian participation in the transit, it has not sought the 
permission of the Government of Canada, nor has it given Canada notification of 
the fact of the transit. 

The United States shares the desire of the Government of Canada that the 
transit be facilitated in the spirit of cooperation that has long characterized the 
relationship between our two Coast Guards. The United States is therefore pleased 
at the positive response of the Government of Canada to the Embassy's advice of 
May 21, 1985, that an invitation would be issued for Canadian participation in 
the transit. As part of that invitation, the United States Coast Guard has already 
informed the Canadian Coast Guard regarding the timing and routing of the 
transit. 

The Government of Canada can be assured that the transit will be conducted 
in a manner that will pose no danger to the environment or ecology in the vicinity 
of the Northwest Passage. The Canadian Coast Guard is fully aware of the 
capabilities, including the specifications, of the icebreaker Polar Sea. 



The United States considers that this transit, and the preparations for it, in no 
way prejudices the juridical position of either side regarding the Northwest 
Passage, and it understands that the Government of Canada shares that view. 82 

On July 31, 1985, Canada responded in a note, as follows: 

The Government of Canada has noted with deep regret that the United States 
remains unwilling, as it has been for many years, to accept that the waters of the 
Arctic archipelago, including the Northwest Passage, are internal waters of Canada 
and fall within Canadian sovereignty. The Government of Canada must accord- 
ingly reaffirm its determination to maintain the status of these waters as an integral 
part of Canadian territory, which has never been and never can be assimilated to 
the regime of high seas or the regime of international straits. Canadian sovereignty 
in respect to Canada's Arctic waters has been and remains well established in fact 
and law, and the voyage of the Polar Sea can in no way affect that situation. In 
this regard, the Government of Canada indeed shares the view of the United 
States, communicated in the State Department's Note No. 222 of June 24, 1985 
that "the transit, and the preparations for it, in no way prejudice the juridical 
position of either side regarding the Northwest Passage." 

The Government of Canada has also noted the cooperative approach proposed 
by the United States regarding the voyage of the Polar Sea and is prepared to follow 
such an approach on the basis of a clear understanding as to the non-prejudicial 
nature of the voyage. In particular, the Government of Canada has welcomed the 
consultations held both at the diplomatic level and between the United States 
Coast Guard and the Canadian Coast Guard, and the information and assurances 



21 2 Excessive Maritime Claims 

provided in relation to the Polar Sea itself and the arrangements for its voyage, 
always without prejudice to the legal position of either government. 

This information and these assurances have satisfied the Government of Canada 
that appropriate measures have been taken by or under the authority of the 
Government of the United States to ensure that the Polar Sea substantially complies 
with required standards for navigation in the waters of the Arctic archipelago and 
that in all other respects reasonable precautions have been taken to reduce the 
danger of pollution arising from this voyage. Accordingly, the Embassy is now in 
a position to notify the United States that, in the exercise of Canadian sovereignty 
over the Northwest Passage, the Government of Canada is pleased to consent of 
the proposed transit, and that, on the basis of the information and assurances 
provided, and in conformity with subsection 12(2) of the Arctic Waters Pollution 
Prevention Act, it is also pleased to issue an order exempting the Polar Sea from 
the application of Canadian regulations under subsection 12(1) of the said Act. 
The relevant Order-in-Council will be issued on Thursday, August 1, 1985. 

The Government of Canada is also pleased to accept the United States 
invitation to participate in the voyage of the Polar Sea. Arrangements for such 
participation will be made between the Canadian Coast Guard and the United 
States Coast Guard. In addition, the Government of Canada wishes to inform the 
United States that Canadian agencies will be monitoring the progress of the voyage 
and will be prepared to render appropriate assistance as required. 

The Polar Sea departed Thule, Greenland on August 1 enroute Lancaster 
Sound. Canadian guests embarked at Resolute, Northwest Territories, near the 
eastern end of the Northwest Passage and debarked at Tuktoyaktuk, near the 
western end. The ship transited through Lancaster Sound, Barrow Strait, 
Viscount Melville Sound and exited the Northwest Passage through Prince of 
Wales Strait and Amundson Gulf. The transit of the Passage was completed on 
August 11, 1985. No operational difficulties were encountered during the 
transit. 

Agreement on Arctic Cooperation, On January 1 1 , 1988, an Agreement on 
Arctic Cooperation was signed in Ottawa by Secretary of State George P. Shultz 
and Canadian Secretary of State for External Affairs Joe Clark. This agreement 
sets forth the terms for cooperation by the United States and Canadian Govern- 
ments in coordinating research in the Arctic marine environment during 
icebreaker voyages and in facilitating safe, effective icebreaker navigation off 
their Arctic coasts. The agreement, which does not affect the rights of passage 
by other warships or by commercial vessels, reads as follows: 

1. The Government of the United States of America and the Government of 
Canada recognize the particular interests and responsibilities of their two countries 
as neighbouring states in the Arctic. 



International Straits 21 3 

2. The Government of Canada and the Government of the United States also 
recognize that it is desirable to cooperate in order to advance their shared interests 
in Arctic development and security. They affirm that navigation and resource 
development in the Arctic must not adversely affect the unique environment of 
the region and the well-being of its inhabitants. 

3. In recognition of the close and friendly relations between their two countries, 
the uniqueness of ice-covered maritime areas, the opportunity to increase their 
knowledge of the marine environment of the Arctic through research conducted 
during icebreaker voyages, and their shared interest in safe, effective icebreaker 
navigation off their Arctic coasts: 

— The Government of the United States and the Government of Canada 
undertake to facilitate navigation by their icebreakers in their respective 
Arctic v^aters and to develop cooperative procedures for this purpose; 

— The Government of Canada and the Government of the United States 
agree to take advantage of their icebreaker navigation to develop and share 
research information, in accordance with generally accepted principles of 
international law, in order to advance their understanding of the marine 
environment of the area; 

— The Government of the United States pledges that all navigation by U.S. 
icebreakers within waters claimed by Canada to be internal will be under- 
taken with the consent of the Government of Canada. 

4. Nothing in this agreement of cooperative endeavour between Arctic neighbors 
and friends nor any practice thereunder affects the respective positions of the 
Governments of the United States and of Canada on the Law of the Sea in this 
or other maritime areas or their respective positions regarding third parties. 

5. This Agreement shall enter into force upon signature. It may be terminated at 
any time by three months' written notice given by one Government to the 
other. 85 

During a joint press conference following the signing of this agreement, 
Secretary Shultz said that he agreed with Secretary Clark's answer to a reporter's 
question whether the agreement puts the sovereignty question "in limbo for all 
time." Secretary Clark had said: 

This agreement is a particular, practical step that leaves the differing views of 
Canada and the United States on the question of sovereignty intact. The United 
States has its view, we have a different view. They have not accepted ours. We 
have not accepted theirs. But we have come to a pragmatic agreement by which 
the United States will undertake to seek Canadian permission before any voyage 
of an icebreaker goes through these waters. 



214 Excessive Maritime Claims 

In response to a question asking under what circumstances Canada would deny 
permission to an American icebreaker to go through Arctic waters, Secretary 
Clark said in part: 

I can't answer a hypothetical question of that kind, . . . but the point is we 
have the power, if we decide, not to agree to a request to transit. . . . We have 
the Arctic Waters Pollution Prevention Act, which covers a lot of the problems 
that might arise. There are agreements within NATO that cover a lot of other 
problems that could arise. There was a hole in the arrangements and we think we 
have found a pragmatic way to respond to that particular problem. . . . 

In response to a question asking whether the United States would be prepared 
to recognize Canada's claim to the Arctic waters, "if U.S. military vessels and 
submarines were given free access to these waters in times of crises," Secretary 
Shultz said "the answer to your question is no." 

Transit of the USCG Icebreaker Polar Star, October 1988. The first request 
by the United States under the 1988 Agreement was made in October 1988 in 
a note which read as follows: 

As provided by the terms of that Agreement, the Government of the United 
States hereby requests the consent of the Government of Canada for the United 
States Coast Guard Cutter "Polar Star", a polar class icebreaker, to navigate within 
waters covered by the Agreement, and to conduct marine scientific research 
during such navigation. Any information developed would be shared with the 
Government of Canada, as envisioned by the Agreement on Arctic Cooperation. 

On September 28, while immediately north of Point Barrow, the "Polar Star" 
responded to a call from the master of the Canadian Coast Guard icebreaker 
"Martha L. Black," to assist the Canadian icebreaker "Pierre Radisson" and 
"Martha L. Black," in accord with the spirit of cooperation embodied in the 
Agreement on Arctic Cooperation. The "Polar Star," which was then enroute 
from Point Barrow, Alaska, to Seattle, Washington, rendezvoused with the nearby 
Canadian icebreakers to assist them in their transit to Victoria, British Columbia. 
Unusually heavy ice caused the "Pierre Radisson" and the "Martha L. Black" to 
abandon their operational plan and to proceed east toward Saint John's, New- 
foundland, via the Northwest Passage. 

After having rendered assistance to the Canadian icebreakers through Oc- 
tober 1 , which required it to change its own operational plans, the "Polar Star" 
now finds itself compelled by heavy ice conditions, adverse winds and engineering 
casualties to proceed east through the waters of the Northwest Passage in order 
to exit the Arctic, as did the Canadian icebreakers. 

The Government of the United States would welcome the presence of a 
Canadian scientist and an officer of the Canadian Coast Guard on board the "Polar 
Star" and would also be pleased if a Canadian Coast Guard vessel were to choose 



International Straits 21 5 

to accompany the "Polar Star" during its navigation and conduct of marine 
scientific research in the Northwest Passage. 

"Polar Star" will operate in a manner consistent with the pollution control 
standards and other standards of the Arctic Waters Pollution Prevention Act and 
other relevant Canadian laws and regulations. Costs incurred as a result of a 
discharge from the vessel, including containment, clean-up and disposal costs 
incurred by the United States or Canada and any damage that is an actual result, 
will be the responsibility of the United States Government, in accordance with 
international law. 

In view of the necessity for prompt action by the "Polar Star" due to 
deteriorating weather conditions, the Government of the United States re- 
quests a prompt reply to its request for the consent of the Government to the 
"Polar Star's" navigation of waters covered by the Agreement on Arctic 
Cooperation. ' 

The Canadian reply, received the same day, read in part: 

The Department [of External Affairs] notes the assurance provided by the 
Embassy that the "Polar Star" will operate in a manner consistent with the 
pollution control standards and other provisions of the Arctic Waters Pollution 
Prevention Act and other relevant Canadian laws and regulations and that costs 
incurred as a result of a discharge from the vessel, including containment, clean-up 
and disposal costs incurred by the United States or Canada and any damage that 
is an actual result will be the responsibility of the United States Government in 
accordance with international law. 

The Department has the honour to inform the Embassy that the Government 
of Canada consents to the "Polar Star's" navigation within waters covered by the 
Agreement. 

The Department has the further honour to inform the Embassy that the 
Government of Canada also consents to the conduct of marine scientific research 
during such navigation. The Department notes that the information obtained in 
such research will be shared as envisioned in the Arctic Cooperation Agreement. 

The Department is pleased to inform the Embassy that the Canadian Govern- 
ment has scheduled the Canadian Coast Guard icebreaker "John A. MacDonald" 
to accompany the "Polar Star" during its navigation in the Northwest Passage. 
Canadian authorities will also be pleased to make available an officer of the 
Canadian Coast Guard to be on board the "Polar Star" during this journey. 88 

The Oresund and the Belts 

The Baltic Straits include the Little Belt, the Great Belt and the Sound 
(Oresund) (see Map 30). The Sound is the shortest passage between the Baltic 
Sea and the Kattegat and the North Sea. It is 2.2 miles wide at its narrowest 



216 Excessive Maritime Claims 



Map 30 



Danish Straits 




Nomes and boundary representations 
ore not necessorily authoritative 






International Straits 21 7 
point, but its depth is insufficient for deep draught vessels. The sole deep water 

OQ 

channel runs through the 10 mile-wide Great Belt. These straits are governed 
in part by two treaties, the Treaty for the Redemption of the Sound Dues, 
Copenhagen, of March 14, 1857, granting free passage of the Sound and Belts 
for all flags on April 1, 1857, and the U.S. -Danish Convention on Discon- 
tinuance of Sound Dues, April 11, 1857, guaranteeing forever "the free and 
unencumbered navigation of American vessels through the Sound and the 
Belts". 

When it signed the LOS Convention, Sweden declared in part that: 

It is the understanding of the Government of Sweden that the exception from the 
transit regime in straits provided for in Article 35(c) of the Convention is applicable 
to the strait between Sweden and Denmark (Oresund) . . . Since in [this strait] 
the passage is regulated in whole or in part by a long-standing international 
convention in force, the present legal regime in [this strait] will remain unchanged 
after the entry into force of the Convention. 2 

Warships were never subject to payment of the so-called "Sound Dues," and 
thus it can be argued that no part of these "long-standing international conven- 
tions" are applicable to them. The U.S. view is that warships and state aircraft 
traverse the Oresund and the Belts based either under the customary right of 
transit passage or under the conventional right of "free and unencumbered 
navigation," since transit passage is a more restrictive regime than freedom of 
navigation guaranteed in the 1857 Conventions. The result is the same: an 
international right of transit independent of coastal State interference. Both 
Denmark and Sweden (Oresund), however, maintain that warships and state 
aircraft that transit the Baltic Straits are subject to coastal State restrictions. They 
argue that the "longstanding international conventions" apply, as "modified" by 
longstanding domestic legislation. The United States does not agree that LOS 
Convention Article 35(c) navigation regimes may be unilaterally restricted. 

In 1991, Finland instituted proceedings in the International Court of Justice 
against Denmark in respect of a dispute concerning passage through the Great 
Belt. The dispute arose from Denmark's intention to construct a 65 meter high 
fixed bridge across the sole deep water route between the Baltic and the North 
Sea (Route T in the Great Belt), thereby preventing the passage of oil drilling 
rigs constructed by Finland in its shipyards from being towed in their vertical 
position under the bridge en route to the North Sea, contrary to international 
law. Interim measures were denied. Shortly before arguments on the merits 
were scheduled to be heard, the two governments reached a settlement of the 
dispute, in which Denmark was to pay approximately $16 million to Finland 
and Finland was to withdraw its case from the Court. 

In a speech presented to the 26th Law of the Sea Institute Annual Conference 
in Genoa, Italy on June 22, 1992, the Department of Defense Representative 



218 Excessive Maritime Claims 

for Ocean Policy Affairs, RADM William L. Schachte, Jr., JAGC, USN, stated 
the view of the United States that "the transit passage articles [of the LOS 
Convention] would clearly prohibit the unfettered, unilateral construction of a 
bridge across a strait used for international navigation". He stated that the United 
States "does not believe that customary international law permits a State 
unilaterally and without prior international approval to construct a fixed bridge 
over an international strait which in many instances is the sole practical deep 
water route available." To unify state practice, RADM Schachte, on behalf of 
the United States, proposed that "all future construction plans for bridges over 
international straits be submitted to the International Maritime Organization" 
after providing actual notice of the proposal well in advance to the IMO. States 
would then be given the opportunity to communicate their views to the 
proposing straits State which would be obliged to seek to accommodate such 
views. Finally, the straits State could only proceed with actual construction upon 
determination by the IMO that the proposal conforms to the established IMO 
guidelines and standards (which are yet to be developed and adopted by the 
IMO). The United States, however, would not apply this prospective procedure 

Oft 

to the proposed bridge over the Great Belt. 

Sunda and Lombok 

Sunda Strait, located between the Indonesian islands of Sumatra and Java, 
provides the major sea link between the Indian Ocean and the Java Sea (see Map 
20). It is approximately 50 miles long, and at its narrowest point is 13.8 miles 
wide. Sangian Island separates the 2.4 mile wide western channel and the 3.7 
mile wide eastern channel. Sunda's governing depth is about 100 feet but is not 
considered suitable for submerged passage given the hydrographic charac- 
teristics of its northern exit and the extent of its commercial use. 

Lombok Strait is located between the islands of Bali and Lombok. It is the 
main alternate route for ships travelling between the Indian Ocean and the East 
Asian Sea. Its navigational width is 11 miles; the length of the passage from the 
entrance to the Lombok Strait to the exit of the Strait of Malacca is 620 miles. 
Its depth provides the most suitable alternate route for deep draught vessels to 
the Malacca and Singapore Straits. 

In 1988, Indonesia reportedly closed these straits for a period of time. The 
U.S. reaction was described in a letter to a lecturer at the Faculty of Law, 
University of Sydney, Australia, in part as follows: 

The United States was not notified by Indonesia of the closure of the Straits 
of Lombok and Sunda but, on learning that Indonesia may have ordered its Navy 
to close those straits for naval exercises and might be conducting naval exercises 
in a manner that hampered international transit rights, expressed its concern to 
the appropriate Indonesian governmental officials. 



International Straits 21 9 

The United States is of the view that interference with the right of straits transit 
passage or archipelagic sea lanes passage would violate international law as reflected 
in the 1982 Law of the Sea Convention and the commitments Indonesia made 
that its practice regarding the archipelagic claim was now fully consistent there- 
with, on which basis the United States was able in 1986 to be the first maritime 
nation to recognize Indonesia's archipelagic claim. 

Indonesian archipelagic sea lanes and air routes have not been proposed by 
Indonesia, acted upon by the competent international organizations or designated 
by Indonesia in accordance with procedures described in article 53 of the LOS 
Convention. All normal international passage routes through the archipelago are 
subject to the regime of archipelagic sea lanes passage in any event. The 
fundamental rules for archipelagic sea lanes passage and transit passage are the same. 
No nation may, consistent with international law, prohibit passage of foreign 
vessels or aircraft or act in a manner that interferes with straits transit or archipelagic 
sea lanes passage. See articles 44 and 54 of the 1982 Law of the Sea Convention 
which reflect the customary international law on point. 

Applying the objective criteria set forth in Parts III and IV of the LOS 
Convention, it is clear that Lombok, Sunda and Malacca are unquestionably 
"straits used for international navigation" and, therefore, are subject to the straits 
transit regime, while Lombok and Sunda also qualify as "normal passage routes 
used for international navigation or overflight" and thus are subject to the regime 
of archipelagic sea lanes passage. 

The United States cannot accept either express closure of the straits or conduct 
that has the effect of denying navigation and overflight rights. While it is perfectly 
reasonable for an archipelagic state to conduct naval exercises in its straits, it may 
not carry out those exercises in a way that closes the straits, either expressly or 
constructively, that creates a threat to the safety of users of the straits, or that 
hampers the right of navigation and overflight through the straits or archipelagic 
sea lanes. 100 

Titan 

The three mile wide Strait of Tiran connects the 98 mile long Gulf of Aqaba 
with the Red Sea (see Map 31). Article V(2) of the Treaty of Peace between 
Egypt and Israel provides: 

The Parties consider the Strait of Tiran and the Gulf of Aqaba to be international 
waterways open to all nations for unimpeded and non-suspendable freedom of 
navigation and overflight. The Parties will respect each other's right to navigation 
and overflight for access to either country through the Strait of Tiran and the Gulf 
of Aqaba. 102 

When asked about the effect of the proposed LOS Convention on the regime 
of navigation and overflight in this strait and the Gulf of Aqaba, a U.S. official 
replied: 



220 Excessive Maritime Claims 



Map 31 



— ^» » n « iM ii^ i 

Medit. Sea ISRAEL ^"j • ^ 



Strait of Tiran 




International Straits 221 

The U.S. fully supports the continuing applicability and force of freedom of 
navigation and overflight for the Strait of Tiran and the Gulf of Aqaba as set 
out in the peace treaty between Egypt and Israel. In the U.S. view, the treaty 
of peace is fully compatible with the LOS Convention and will continue to 

prevail. The conclusion of the LOS Convention will not affect these provisions 

103 
in any way. J 

On August 23, 1983, Egypt declared upon ratification of the 1982 LOS 
Convention: 

The provisions of the 1979 Peace Treaty between Egypt and Israel concerning 
passage through the Strait of Tiran and the Gulf of Aqaba come within the 
framework of the general regime of waters forming straits referred to in Part 
III of the Convention, wherein it is stipulated that the general regime shall 
not affect the legal status of waters forming straits and shall include certain 
obligations with regard to security and the maintenance of order in the State 
bordering the strait. 104 

On December 11, 1984, Israel submitted a statement to the U.N. Secretary- 
General which stated: 

The concerns of the Government of Israel, with regard to the law of the sea, 
relate principally to ensuring maximum freedom of navigation and overflight 
everywhere and particularly through straits used for international navigation. 

In this regard, the Government of Israel states that the regime of navigation 
and overflight, confirmed by the 1979 Treaty of Peace between Israel and Egypt, 
in which the Strait of Tiran and the Gulf of Aqaba are considered by the Parties 
to be international waterways open to all nations for unimpeded and non-suspend- 
able freedom of navigation and overflight, is applicable to the said areas. Moreover, 
being fully compatible with the United Nations Convention on the Law of the 
Sea, the regime of the Peace Treaty will continue to prevail and to be applicable 
to the said areas. 

It is the understanding of the Government of Israel that the declaration of the 
Arab Republic of Egypt in this regard, upon its ratification of the [said] Conven- 
tion, is consonant with the above declaration. 105 

United Kingdom Straits 

The United Kingdom has asserted the legal regimes applicable in some of the 
international straits in its waters. The transit passage regime is considered to be 
applicable in the Strait of Dover, the North Channel between Scotland and 
Northern Ireland, and the Fair Isle Gap between the Shetlands and Orkneys. 
The "transit passage" regime was used in a Declaration issued by France and 
Great Britain setting out the governing regime of navigation in the Dover Straits 
in conjunction with the signature on November 2, 1988 of an Agreement 



222 Excessive Maritime Claims 

establishing a territorial sea boundary in the Straits of Dover. In 1987, the 
United Kingdom recognized the right of foreign aircraft to exercise the right 
of transit passage over the Straits of Dover, the North Channel and the Fair Isle 

1 0ft 

Channel between the Shetland and Orkney Islands. 

The regime of (non-suspendable) innocent passage is said to apply in other 
United Kingdom straits used for international navigation, such as the Pentland 
Firth south of Orkney and the passage between the Scilly Isles and the mainland 
of Cornwall. 

Notes 

1. LOS Convention, article 37. 

2. See LOS Convention, article 36. 

3. LOS Convention, articles 38(2) & 39(l)(c); Moore, The Regime of Straits and The Third United Nations 
Conference on the Law of the Sea, 74 Am. J. Int'l L. 77, 95-102 (1980); 1 O'CONNELL, THE INTERNATIONAL 
LAW OF THE SEA 331-37 (1982). Compare article 53(3) which defines the parallel concept of archipelagic sea 
lanes passage as "the exercise ... of the rights of navigation and overflight in the normal mode solely for the 
purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive 
economic zone and another part of the high seas or an exclusive economic zone." The emphasized words do 
not appear in article 38(2), but rather in the plural in article 39(l)(c): article 39 also applies mutatis mutandis to 
archipelagic sea lanes passage. 

4. U.S. Department of the Navy, 77»e Commander's Handbook on the Law of Naval Operations, NWP 9 
(Rev. A.)/FMFM 1-10 (1989) [hereinafter NWP 9 (Rev. A)], para. 2.3.3.1. 

5. LOS Convention, article 39(1). 

6. LOS Convention, article 44. 

7. U.S. Department of the Navy, Annotated Supplement to The Commander's Handbook on the Law of 
Naval Operations, NWP 9 (Rev. A.)/FMFM 1-10 (1989) [hereinafter NWP 9 (Rev. A) ANN. SUPP.], para. 
2.3.3.1 &n.42. 

8. LOS Convention, articles 41(1) & 41(3). The International Maritime Organization is the proper 
international organization. 

9. Presidential Proclamation No. 5928, Dec. 27, 1988, Appendix 3. 

10. State Department telegram 202135, July 2, 1985. The Spanish declarations are discussed below, this 
Chapter, beginning at text accompanying n. 46. Under the 1958 Territorial Sea Convention, international 
straits overlapped by territorial seas were subject to a regime providing only nonsuspendable innocent surface 
passage. Territorial Sea Convention, articles 14 & 16(4). 

1 1 . Aide memoire delivered Dec. 4, 1984, from American Embassy Stockholm. State Department telegram 
355149, Dec. 1, 1984; American Embassy Stockholm telegram 08539, Dec. 10, 1984. 

12. State Department telegram 375513, Dec. 21, 1984, para. 5. 

13. Navy JAG, Alexandria VA, naval message 061630ZJune 1988. 

14. An English translation of this treaty is set out in Annex 2 to Limits in the Seas No. 105, Colombia 
- Dominican Republic & Netherlands (Netherlands Antilles) - Venezuela: Maritime Boundaries. 

15. U.N. LOS BULL., No. 19, Oct. 1991, at 24; U.N. LOS: Practice of Archipelagic States 247. 

16. Treaty Between the Independent State of Papua New Guinea and Australia concerning Sovereignty 
and Maritime Boundaries in the areas between the two countries, including the area known as Torres Strait, 
and related matters, signed at Sydney, Dec. 18, 1978, 18 I.L.M. 291 (1979); U.N. LOS: Practice of Archipelagic 
States 185. 

17. South Pacific Nuclear Free Zone Treaty, 24 I.L.M. 1442 (1985). 

18. Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection 
and Development of the Marine Environment of the Wider Caribbean Region, 1990. S. Treaty Doc. 103-5, 
at 8. 

19. U.N. LOS: Practice of Archipelagic States 161. 

20. Reportedly to preclude any implication of incorporation by reference of the entire straits regime, 
37 Int'l & Comp. L.Q. 415 (1988). 

21. UK White Paper, France No. 1, Cm. 557 (1989); FCO Press Release No. 100, Nov. 2, 1988; 
reprinted in 59 Brit. Y. B. Int'l L. 524-25 (1988); U.N. LOS BULL., No. 14, Dec. 1989, at 14; U.N., Current 
Developments No. II, at 263; and Nandan & Anderson, Straits Used For International Navigation: A Commentary 



International Straits 223 

on Part III of the United Nations Convention on the Law of the Sea 1982, 60 Brit. Y. B. Int'l L. 159, 170 n. 34 
(1989). See also n. 107 infra. 

22. See CYUYVERS, THE STRAITS OF DOVER (1986). 

23. Footnotes omitted. The Malaysia-Indonesia-Singapore statements and addenda may be found in 
U.N. Doc. A/CONF.62/L.145, 16 Official Records of the Third U.N. Conference on the Law of the Sea 
250-53 [hereinafter Official Records]. On the 1904 Anglo-French Declaration, see n. 46 infra. 

24. U.N. Doc. A/47/512, Nov. 5, 1992, para. 23, at 8. 

25. U.N. GA Doc. A/48/90, Feb. 22, 1993, reprinted in U.N. LOS BULL., No. 23, June 1993, at 108. 

26. LOS Convention, article 45. 

27. 1975 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 432 [hereinafter 
DIGEST] ("the view of the United States Government is that vessels proceeding to or departing from United 
States ports through the waters of Head Harbour Passage enjoy the right of innocent passage under international 
law. This right is not subject to unreasonable or arbitrary interference or suspension."); Moore, The Regime of 
Straits and the Third United Nations Conference on the Law of the Sea, 74 Am. J. Int'l L. 77, 112 (1980). 

28. LOS Convention, article 38(1). For a list of such straits, see OFFSHORE CONSULTANTS, INC., 
NAVIGATIONAL RESTRICTIONS WITHIN THE NEW LOS CONTEXT: GEOGRAPHICAL IMPLICA- 
TIONS FOR THE UNITED STATES Table 8, following page 161 (L.M. Alexander, ed. Final Report under 
Defense Supply Service Contract 903-84-C-0276, Dec. 1986) [hereinafter ALEXANDER, NAVIGATIONAL 
RESTRICTIONS]. The United Kingdom claims the regime of nonsuspendable innocent passage applies to the 
Pentland Firth south of Orkney and the passage between the Scilly Isles and the mainland of Cornwall. 484 
H.L. Hansard, col. 382, Feb. 5, 1987. 

29. U.N. Current Developments No. II, at 94. 

30. American Embassy Belgrade Diplomatic Note No. 062 dated Aug. 22, 1986, State Department 
telegram 264932, Aug. 22, 1986; American Embassy Belgrade telegram 00674, Jan. 23, 1987. The Yugoslavian 
Foreign Ministry reply, in its Note no. 194 dated Jan. 23, 1987, read as follows: 

Transit passage through straits used for international navigation is a new navigation regime agreed 
upon for the first time at the Third United Nations Conference on the Law of the Sea and introduced 
in the United Nations Convention on the Law of the Sea. The transformation of the provisions that 
form that regime into customary international law will be a complex and gradual process which will, 
like in other fields of international law, take place in accordance with the principles most precisely 
determined by the International Court of Justice in the case of the Delimitation of the Continental 
Shelf in the North Sea in 1969. 

The purpose of the regime of transit passage is to enable foreign ships passing through straits used 
for international navigation between a part of the high seas or exclusive economic zone and another 
part of the high seas or exclusive economic zone not to navigate under the more strict and restrictive 
regime of innocent passage. 

Yugoslavia's statement concerning the rules of the United Nations Convention on the Law of the 
Sea in transit passage is not designed to prevent the exercise of the right of transit passage. It relates 
only to situations when there are more than one strait with the same navigational conditions. 

Yugoslavia is not the only country which made the statement on transit passage. 

31. LOS Convention, article 36. 

32. Corfu Channel Case, 1949 I.C.J. Rep. 4, 28. 

33. Article 16(4). 

34. Articles 34(1), 36 & 45. 

35. Grunawalt, United States Policy on International Straits, 18 Ocean Dev. & Int'l L.J. 445, 456 (1987). 

36. ALEXANDER, NAVIGATIONAL RESTRICTIONS 153-54. 

37. Office of the Special Representative of the Secretary-General for the Law of the Sea, The Law of 
the Sea: Status of the United Nations Convention on the Law of the Sea, U.N. Sales No. E.85.V.5, at 14 
(1985). 

38. Id. ^26. 

39. See ALEXANDERSSON, THE BALTIC STRAITS 69 (1982). 

40. Geneva, Oct. 20, 1921, 9 L.N.T.S. 211. Article 5 of the Convention provides "The prohibition to 
send warships into [the waters of the Aland Islands] or to station them there shall not prejudice the freedom 
of innocent passage through the territorial waters. Such passage shall continue to be governed by the 
international rules and usage in force." The parties to this Convention include Denmark, Estonia, Finland, 



224 Excessive Maritime Claims 

Germany, Italy, Latvia, Poland, Sweden, and the United Kingdom. The Oresund and the Belts are discussed 
below, this chapter. 

41. See LAPIDOTH, THE RED SEA AND THE GULF OF ADEN 130-49 (1982). 

42. Diplomatic Note No. 449 dated Oct. 6, 1986, delivered by American Embassy Sanaa, pursuant to 
instructions contained in State Department telegram 312052, Oct. 3, 1986. American Embassy Sanaa telegram 
06770, Oct. 6, 1986. The Yemeni declaration of Dec. 10, 1982, may be found in U.N., Status of the United 
Nations Convention on the Law of the Sea 29. See also 1979 DIGEST 1724. 

43. See 2 BRUEL, INTERNATIONAL STRAITS 252-55 (1947); ROZAKIS, THE TURKISH STRAITS 
(1987); and Note by Turkey; Navigational and Environmental Safety in the Turkish Straits, I.M.O. doc. 
MSC/62/INF.10, Mar. 26, 1993. 

44. 173 L.N.T.S. 213, 31 Am. J. Int'l L. Supp. 4. See BRUEL, INTERNATIONAL STRAITS 252-426. 

45. See TRUVER, THE STRAIT OF GIBRALTAR AND THE MEDITERRANEAN (1980) and 2 BRUEL, 
INTERNATIONAL STRAITS 116-99. 

46. While it may be noted that free passage of the Straits of Gibraltar was agreed to in a series of agreements 
between France, Spain and Great Britain in the early 20th Century, neither Spain nor Morocco have asserted 
the Article 35(c) exception applies. Article VII of the Declaration between the United Kingdom and France 
respecting Egypt and Morocco, London, Apr. 8, 1904, 195 Parry's T.S. 198, acceded to by Spain in the 
Declaration of Paris, Oct. 3, 1904, 196 Parry's T.S. 353; Declarations on Entente on Mediterranean Affairs, 
Paris, May 16, 1907, 204 Parry's T.S. 176 (France and Spain) and London, May 16, 1907, 204 Parry's T.S. 
179 (United Kingdom and Spain); and article 6 of the France-Spain Convention concerning Morocco, Madrid, 
Nov. 27, 1912, 217 Parry's T.S. 288. 

47. Diplomatic Note No. 806 dated Aug. 14, 1985, delivered by American Embassy Madrid, State 
Department telegram 202135, July 2, 1985; American Embassy Madrid telegram 05509, Apr. 28, 1989. 

48. The Spanish declaration of Apr. 12, 1984, may be found in U.N., Status of the United Nations 
Convention on the Law of the Sea 25, U.N. Sales No. E85.V.5 (1985) and U.N. Multilateral Treaties 
Deposited with the Secretary-General, Status as of Dec. 31, 1992, at 772-73. 

49. State Department telegram 202135, supra n. 47, paras. 6 & 7. 

50. See RAMAZANI, THE PERSIAN GULF AND THE STRAIT OF HORMUZ (1979). 

51. The statement of Iran accompanying its signature of the Law of the Sea Convention on Dec. 10, 
1982, may be found in U.N., Status of the United Nations Convention on the Law of the Sea 18. 

52. U.N. Doc. A/CONF.62/WS/37, 17 Official Records 244. The statement of Iran accompanying 
its signature of the Law of the Sea Convention on Dec. 10, 1982, was also protested in a Diplomatic Note to 
the Embassy of Algeria dated Aug. 17, 1987, State Department File No. P87-0098-1262. 

53. I Public Papers of the Presidents: Ronald Reagan 1984, at 25 1 . President Reagan expressed essentially 
the same commitment on a number of occasions thereafter, in an address before the Center for Strategic and 
International Studies, Apr. 6, 1984, (id., at 481), in a radio address to the nation, Sept. 21, 1985 (id., 1985 Bk. 
II, at 1125), and in statements on Jan. 23, Feb. 25, and May 30, 1987 (id. 1987 Bk. I, at 46, 181, 581-82). See 

further 1980 DIGEST 625-26. 

54. Diplomatic Note to the Embassy of the Democratic and Popular Republic of Algeria dated Aug. 
17, 1987, State Department File No. P87 0098-1261; Algerian Embassy at Washington Diplomatic Note No. 
D.E/4.87, dated Apr. 30, 1987, State Department File No. P87 0063-0052. 

55. Diplomatic Note No. 1, dated Jan. 2, 1985, delivered by American Embassy Moscow, State 
Department telegram 381259, Dec. 29, 1984. The Soviet Note MFA No. 81 /USA read as follows: 

On November 30, 1984, vessels of the U.S. Navy — the cruiser "Sterett" and the destroyer "J. 
Young" — violated the state boundary of the USSR in the Strait of Friza (Kuril Islands). The vessels 
in question crossed the boundaries of the territorial waters of the USSR at 07:15 (Moscow time) at a 
point with coordinates Lat. 45 degrees 26.9 minutes N, Long. 149 degrees 14.6 minutes E and departed 
them at 08:07 at a point Lat. 45 degrees 30 minutes N. Long. 149 degrees 4.2 minutes E. 

The American side knows well that peaceful passage of foreign military vessels through the 
territorial waters of the USSR for the purpose of traversing them without incursion into inner waters 
and ports is permitted in accordance with the Rules of Navigation and Passage Through the Territorial 
Waters (Territorial Sea), Inner Waters and Ports of the USSR by Foreign Military Vessels, which is 
published every year in the Notice to Mariners Edition No. 1, on the routes commonly used by 
international shipping. In the area of the Kuril Islands there is such a route passing through the fourth 
Kuril Strait. 

Therefore, it is completely obvious that the actions of the U.S. Navy vessels bore a premeditated 
and provocative character. 



International Straits 225 

This is not the first instance of such violations in the recent past to be brought to the attention of 
the American side. 

The MFA of the USSR protests the new violation by American military vessels of the state 
boundaries of the USSR and insists that the American side take effective measures to exclude repetition 
of such incidents in the future. 

Diplomatic Note No. 81 /USA from the Ministry of Foreign Affairs, Moscow, Dec. 3, 1984, American 
Embassy Moscow telegram 15281, Dec. 3, 1984. In rejecting the U.S. note of Jan. 2, 1985 in Note No. 
11/USA delivered Mar. 14, 1985, the Ministry of Foreign Affairs stood by its Note No. 81/USA of Dec. 3, 
1984, American Embassy Moscow telegram 03262, Mar. 15, 1985. 

The U.S. Note dated May 23, 1957, referred to in the U.S. Note of Jan. 2, 1985 rejects the Soviet claim 
of right to possession of the Kuril islands and may be found in 3 WHITEMAN, DIGEST OF INTERNATIONAL 
LAW 581-83. The State Department's instructions to the Embassy noted that: 

The term "Friza Strait" is an objectionable term to the USG. "Etorofu Strait" is our preferred 
formulation. For the record also, the USG refers to the islands immediately to the southwest of the 
Etorofu Strait by their given names, i.e. Etorofu, Kunashiri, Shikotan, and the Hamomais (vice Little 
Kuriles or Southern Kuriles). 

The instructions also stated that "the principles expressed [in this note] regarding innocent passage of warships 
are applicable to the November 23 [1984] exercise of innocent passage in the Black Sea by the USS Spruance 
and Coontz." State Department telegram 381250, Dec. 29, 1984, para. 5. 

The Soviet legislation may be found in translation in 24 I.L.M. 1717 (1985). See Butler, Innocent Passage 
and the 1982 Convention: The Influence of Soviet Law and Policy, 81 Am. J. Int'l L. 331 (1987), and Neubauer, 
The Right of Innocent Passage for Warships in the Territorial Sea: A Response to the Soviet Union, Nav. War Coll. 
Rev., Spring 1988, at 49. 

56. Diplomatic note delivered July 18, 1986, by the American Embassy Moscow, State Department 
telegram 220023, July 14, 1986; American Embassy Moscow telegram 12330, July 18, 1986. The Soviet 
statement of June 11, 1986 read as follows: 

On June 8 of this year at 0555 Moscow time the USN frigate "Hammond" violated the state 
border of the USSR in the region of the Kuril islands, passing from the Sea of Okhotsk to the Pacific 
Ocean through Soviet territorial waters between the islands Raykoke and Matua (the Golovnina strait). 
At this time the frigate demonstratively disregarded the warning signals from the Soviet cruiser Minsk 
concerning the violation of the borders. 

The American side has already repeatedly asserted that peaceful passage by foreign military vessels 
through the territorial waters of the USSR with the aim of their intersection is permitted along routes 
used commonly for international navigation. There is such a route in the region of the Kuril Islands, 
passing through the fourth Kuril strait. 

Therefore, it is completely obvious that the action of the frigate Hammond takes on a premeditated 
and provocational character. 

The USSR MFA protests on the occasion of the violation by a vessel of the USN of the USSR 
state border and demands that the American side adopt, at last, appropriate measures to prevent similar 
occurrences at odds with the demands of the laws and regulations of the USSR, relating to the regime 
of Soviet territorial waters. 

It should be clear that continuing violation of the Soviet state border by American military vessels 
can have the most serious consequences, responsibility for which would he entirely and completely 
with the U.S. 

Note verbale from the Ministry of Foreign Affairs, Moscow, June 11, 1986, American Embassy Moscow telegram 
09922, June 11, 1986. For the results of the negotiations which followed this incident, and another in the 
Black Sea in February 1988, see Chapter X, n. 4 and accompanying text. The 1983 Soviet Rules were amended 
effective Sept. 23, 1989, to eliminate the attempt to restrict innocent passage of warships to five named "routes 
ordinarily used for international navigation." 

57. See 2 BRUEL, INTERNATIONAL STRAITS 200-51 and MORRIS, THE STRAIT OF MAGELLAN 
(1989). 



226 Excessive Maritime Claims 

58. Signed Jul. 23, 1881, 82 Brit. Foreign & State Papers 1103, 159 Parry's T.S. 45. 

59. Signed Nov. 29, 1984, 24 I.L.M., 11, 13 (1985). 

60. State Department telegram 375513, Dec. 21, 1984, paras. 4 & 5. 

61. LEIFER, MALACCA, SINGAPORE AND INDONESIAN STRAITS 52-56 (1978). Navigational 
difficulties are described at 56-62. See also the Report of the I.M.O. Working Group on the Malacca Strait 
Area, I.M.O. doc. MSC/62/INF.3, at 6-8 (1993). 

62. U.N. Doc. A.CONF.62/L.145/Add.5, 16 Official Records 251. Add. 1 - 8, id. at 251-53, contain 
the confirmations of Indonesia, Singapore, France, the United Kingdom, the United States, Japan, Australia 
and the Federal Republic of Germany, respectively. 

63. See I.M.O., Ships' Routeing Part B Section V (traffic separation schemes), Section III (deep water 
routes), and Part F (associated rules) (6th ed. 1991). 

64. LOS Convention, article 38(1). 

65. Italian Minister of Merchant Marine decree, Temporary Prohibition in the Straits of Messina for a 
Category of Ships, dated Mar. 27, 1985 (published in Gazzetta Ufficiale No. 76, Mar. 29, 1985, p. 2408), an 
English translation of which may be found in American Embassy Rome telegram 08480, Apr. 3, 1985. 

66. Diplomatic Note delivered Apr. 5, 1985, from American Embassy Rome, State Department telegram 
102199, Apr. 4, 1985; American Embassy Rome telegram 08736, Apr. 5, 1985. 

67. Id. para. 4. See also supra Chapter X for other U.S. objections to requirements for compulsory pilotage 
of warships. This 45-day prohibition was revised by Article 6 of Minister of Merchant Marine decree dated 
May 8, 1985 (published in the Gazzetta Ufficiale no. 110, May 11, 1985, an English translation of which may 
be found in American Embassy Rome telegram 12263, May 15, 1985), effective May 15, 1985, to apply to 
vessels 50,000 tons and above carrying oil products or other substances hazardous to the environment. On 
May 15, 1985, the Italian Ministry of Foreign Affairs replied in a note verbale in relevant part, as follows: 

As may be noted from the text of the May 8, 1985 decree . . . , the measures decided with the intent 
of decreasing the risk of maritime accidents are designated as "provisional" while waiting for the 
construction and putting into operation of technical installations to aid navigation in the Straits. 

The provisional measures established with the decree in question appeared indispensable to save the 
marine environment and to guarantee the safety of the coasts of the zone of interest and of the 
inhabitants of the shore. Therefore, these measures cannot be regarded as directed toward the limitation 
of the right of innocent passage through the straits, as defined by the rules of international law in force, 
but rather as the temporary regulation of it with the aim of achieving goals of safeguarding the 
environment and the safety of the coasts as provided by other instruments of international law and 
especially by the IMO Convention quoted in the Preamble of the Decree. 

It must be also noted that for this specific case there is an alternate route of similar suitability (through 
the Sicily Channel) and that some oil companies (especially AGIP and ESSO) have limited themselves 
by excluding from passage through the Messina Straits their own oil tankers over 50,000 tons. 

From the reading of the May 8, 1985, decree it can be concluded that the decree itself concerns solely 
merchant ships and it is therefore clear that it is not to be applied to warships, and according to art. 3 
of the November 2, 1973 London Convention for the Prevention of Pollution from Ships, is not to 
be applied to auxiliary warships or other ships belonging to a state or operated by such state on 
non-commercial service. 

Informal English translation set out in American Embassy Rome telegram 12571, May 17, 1985. A new 
automated control system for navigation in the Strait of Messina went into effect June 1, 1987. American 
Embassy Rome telegram 12611, May 26, 1987. 

68. See BUTLER, NORTHEAST ARCTIC PASSAGE (1978). 

69. Aide memoire from the Soviet Ministry of Foreign Affairs to American Embassy Moscow, dated July 
21, 1964, American Embassy Moscow telegram 17002, July 21, 1964. 

70. American Embassy, Moscow aide memoire dated June 22, 1965, State Department File No. POL 
33 R. The Soviet side, in an aide memoire to American Embassy Moscow on July 26, 1965, confirmed its 
position contained in its aide memoire of July 21, 1964, American Embassy Moscow telegram 18098, July 26, 
1964. 

71. Soviet Ministry of Foreign Affairs Note 45/USA dated Oct. 27, 1965, to American Embassy 
Moscow, American Embassy Moscow telegram 23048, Oct. 28, 1965. 

72. American Embassy Moscow Note delivered in Nov. 1965 pursuant to State telegram 14083, Nov. 
26, 1965, File POL 33-6 US-USSR. 



International Straits 227 

73. Department of State Note dated Aug. 14, 1967 to the Soviet Embassy in Washington, State 
Department File No. SCI 31 US. 

74. Soviet Ministry of Foreign Affairs aide memoire to American Embassy Moscow dated Aug. 24, 1967, 
American Embassy Moscow telegram 754, Aug. 25, 1967. 

75. American Embassy Moscow telegram 811, Aug. 28, 1967, State Department File SCI 31 US. 

76. State Department telegram 029187, Aug. 30, 1967, State Department File SCI 31 US; American 
Embassy Moscow telegram 841, Aug. 30, 1967. 

77. DEP'T ST. BULL., No. 1473, Sept. 18, 1967, at 362. See further, Franckz, Non-Soviet Shipping in the 
Northeast Passage, and the Legal Status ofProliv Vil'kitskogo, Polar Record, vol. 24, no. 151, pp. 269-76 (1988); 
Butler, Soviet Concepts of Innocent Passage, 7 Harv. Int'l L.J. 113-14 (1965); BUTLER, NORTHEAST ARCTIC 
PASSAGE 86 (1978); Ackley, The Soviet Navy's Role in Foreign Policy, Nav. War Coll. Rev., at 53-55 (May 
1972); Pharand, Soviet Union Warns United States Against Use of Northeast Passage, 62 Am. J. Int'l L. 927-35 
(1968); and Pharand, Innocent Passage in the Arctic, 1968 Can. Y.B. Int'l L. 3, 15-41. 

78. See Rothwell, The Canadian-US. Northwest Passage: A Reassessment, 26 Cornell Int'l L.J. 331 (1993), 
Pharand, Canada's Sovereignty over the North West Passage, 10 Mich J. Int'l L. 653 (1989) and PHARAND, THE 
NORTHWEST PASSAGE ARCTIC STRAITS (1984). The Canadian claim is also discussed in Pullen, What 
Price Canadian Sovereignty?, U.S. Nav. Inst. Proc. 66 (Sept. 1987) wherein Captain Pullen, Canadian Navy 
(retired), establishes that the Northwest Passage is the sea route that links the Adantic and Pacific Oceans north 
of America, and lists the 36 transits of the Passage from 1906 to 1987. The United Kingdom has stated that it 
does not recognize Canadian sovereignty over all of the waters of the Canadian Arctic archipelago. 58 Brit. 
Y.B. Int'l L. 1987, at 586 (1988). 

79. In 1970, the United Kingdom reserved its rights in connection with the 1970 Canadian Act. 55 Brit. 
Y.B. Int'l L. 1984, at 553 (1985). The United States continues to object to the application of the law in so far 
as it purports to apply to sovereign immune vessels. The United States believes that internationally agreed 
standards should be developed to replace many of its unilateral provisions. However, the United States considers 
that U.S. commercial vessels are subject to the law. The United States has agreed to consult with Canada in 
the development of standards and operational procedures to facilitate commercial navigation in the Arctic. 

The Arctic Waters Pollution Prevention Control Act preceded the Third U.N. Conference on the Law 
of the Sea (UNCLOS III) and the LOS Convention's non-seabed articles which the United States considers 
to be reflective of customary international law. During UNCLOS III, collaboration among the United States, 
Canada and the USSR resulted in the so-called "ice-covered areas Article," article 234, developed primarily 
to address satisfactorily the Canadian Arctic environmental concerns. Article 234 recognizes more extensive 
coastal State rights with respect to prescriptive and enforcement competence in vessel-source pollution 
prevention and control in areas of the EEZ that are usually ice-covered than may be exerted in other areas of 
the EEZ. Article 234, however, does not specifically deal with straits; thus it leaves open the issue whether or 
not the Northwest Passage constitutes a strait used for international navigation. Furthermore, article 234 does 
not apply to sovereign immune vessels. See also Chapter XV, text accompanying nn. 38-40 infra. 

Over the years, Canada has argued that the waters of the Canadian Arctic are internal waters, territorial 
waters, or a mixture thereof. See, for example., Canadian External Affairs Legal Bureau briefing of May 21, 
1987, in 1987 Can. Y.B. Int'l L. 406, and Legal Bureau paper dated Mar. 29, 1988, in 1988 id. 314. The 
Canadian public clearly regards the area as integral with and indistinguishable from the sovereign continental 
mainland areas of Canada. On the other hand, the United States has firmly taken the position that the Northwest 
Passage waters are not internal and that they are subject to the non-suspendable navigational regime of transit 
passage. The United States believes they form a strait used for international navigation between one area of 
the high seas and another. 

80. State Department telegram 151842, May 17, 1985; American Embassy Ottawa telegram 03785, May 
21, 1985. See also Canadian Secretary of State for External Affairs Joe Clark's letter to the editor of Maclean's, 
Apr. 28, 1986, at 4. The "Volpe-Jamieson Agreement" of June 18, 1970, a memorandum of understanding 
between the U.S. Department of Transportation and the Canadian Ministry of Transport concerning research 
and development cooperation in transportation, is not printed. 

81. Canadian Embassy Washington DC Note No. 331, dated June 11, 1985, to the State Department, 
Department of State File No. P85 0118 0711/0714. See also Pharand, Canada's Sovereignty over the Newly 
Enclosed Arctic Waters, 1987 Can. Y.B. Int'l L. 325, at 326. 

82. American Embassy Ottawa Note No. 222 ofjune 24, 1985, Department of State File No. P85 0118 
0711/0714. See also Pharand, supra n. 81, at 326. 

83. Canadian Embassy, Washington, DC, Note No. 433, dated July 31, 1985, Department of State File 
No. P85 0118-0711. See also the Statement of Canadian Secretary of State For External Affairs, Joe Clark, in 
the Canadian House of Commons Debates, Sept. 10, 1985, at 6462, Statement Series 85/49, excerpted in 1986 Can. 
Y.B. Int'l L. 417 and 24 I.L.M., 1724 (1985). 



228 Excessive Maritime Claims 

84. See supra Chapter IV regarding the Canadian Order-in-Council of September 10, 1985, establishing 
straight baselines around the outer perimeter of the Canadian arctic islands, effective January 1, 1986, which 
followed the public reaction in Canada to the transit of the Polar Sea. 

85. T.I.A.S. No. 11565, 28 I.L.M. 142 (1989), summarized in 82 Am. J. Int'l L. 340-41 (1988). 

86. Joint Press Conference, Jan. 11, 1988, Department of State Press Release No. 3, Jan. 14, 1988. See 
also Canadian House of Commons Debates,]zr\. 18, 1988, pp. 1 1998-99, excerpted in 1988 Can. Y.B. Int'l L. 350, 
and Canadian External Affairs Legal Bureau paper dated Mar. 29, 1988, in 1988 Can. Y.B. Int'l L. 315. 
Negotiation of this agreement is discussed in Howson, Breaking the Ice: The Canadian-American Dispute over the 
Arctic's Northwest Passage, 26 Colum. J. Transnat'l L. 337 (1988). 

87. American Embassy Ottawa Note No. 425, dated Oct. 10, 1988, Department of State File No. P88 
0129-0576, 28 Int'l Legal Mat'ls 144, 83 Am. J. Int'l L. 64 (1989). 

88. Department of State File No. P88 0129-0576, 28 I.L.M. 145. The Polar Star completed its transit of 
the Passage on October 20, 1988, accompanied by the Canadian cutter John A. MacDonald as far as Baffin Bay. 
The Polar Star transited the Northwest Passage from east to west in August 1989; the Polar Sea transited from 
east to west in September 1990. Both transits occurred pursuant to virtually identical notes exchanged in 
accordance with this agreement. 

89. See ALEXANDERSSON, THE BALTIC STRAITS 63-69 (1982) and 2. BRUEL, INTERNATIONAL 
STRAITS: A TREATISE ON INTERNATIONAL LAW, 11-115 (1947). 

90. 116 Perry's T.S. 357, 47 Brit. Foreign & State Papers 24. 

91. 11 Stat. 719, T.S. 67, 7 Miller 519, 7 Bevans 11, Articles I and III. 

92. Office of the Special Representative of the Secretary-General for the Law of the Sea, The Law of 
the Sea: Status of the United Nations Convention on the Law of the Sea, U.N. Sales No. E.85.V.5, at 26 
(1985). 

93. 7 Miller 524-86; 2 BRUEL, supra n. 89, at 41 & 84 (the 1857 Conventions apply only to merchant 
ships). 

94. Compare the view of Bruel that the 1857 treaties only abolish extraordinary rights leaving the straits 
to be governed in the future by the general rules of international law. 2 BRUEL, supra n. 89, at 45 & 95. 

95. ALEXANDERSSON, supra n. 89, at 82-86 & 89. 

96. 1991 I.C.J. Rep. 12. 

97. 1992 I.C.J. Rep. 348 (order removing case from the general list). See also 32 I.L.M. 101 (1993). 

98. Schachte, International Straits and Navigational Freedoms, 23 Ocean Dev. & Int'l L. 179, at 193-94 
(1993). 

99. LEIFER, supra n. 61, at 76-81. 

100. David H. Small, Assistant Legal Adviser for Oceans and International Environmental and Scientific 
Affairs, letter dated Apr. 4, 1989, Department of State File No. P89 0049-2112, quoted in 83 Am. J. Int'l L. 
559-61 (1989). The closure was also protested by Japan, Spain (for the EC), and the Federal Republic of 
Germany in 1989, and by Australia on October 10, 1988. 12 Aust. Y.B. Int'l L. 382-83 (1992); Treves, 223 
Recueil des Cours 134 (1990-4). SeeRothwell, 77ie Indonesian Straits Incident: Transit or ASLP?, Marine Policy 
at 491-506 (Nov. 1990) and Lowry, Why Indonesia Closed the Strait in September 1988, 16 Studies in Conflict 
and Terrorism 171 (1993). 

101. See LAPIDOTH, THE RED SEA AND THE GULF OF ADEN 119-27 & 172-83 (1982). 

102. Mar. 26, 1979, 1979 DIGEST 1691, 18 I.L.M. 362 (1979). For an earlier analysis of access to the 
ports in the Gulf of Aqaba by the Department's Special Adviser on Geography (Boggs), see 5 Department of 
State, FOREIGN RELATIONS OF THE UNITED STATES 1951, The Near East and Africa 585-88 (1982). 

103. Assistant Secretary of State James L. Malone, Special Representative of the President to the Law of 
the Sea Conference, at a January 29, 1982 press conference at the State Department, reprinted in 128 Cong. 
Rec. S4089, Apr. 27, 1982. This statement was quoted in full by Ambassador Shabti Rosenne as part of the 
Israeli delegation's statement at the final session of UNCLOS III in December 1982, 17 Official Records 84, 
para. 20. See also 1980 DIGEST 624. 

104. U.N. Law of the Sea Bulletin, No. 3, Mar. 1984, at 14. Compare Lapidoth, The Strait of Tiran, the 
Gulf of Aqaba, and the 1919 Treaty of Peace Between Egypt and Israel, 77 Am. J. Int'l L. 84 (1983) with el Baradei, 
The Egyptian-Israeli Peace Treaty and Access to the Gulf of Aqaba: A New Legal Regime, 76 Am. J. Int'l L. 532 
(1982). See also 1980 DIGEST 623-25. 

105. U.N. Multilateral Treaties Deposited with the Secretary-General: Status as of Dec. 31, 1992, U.N. 
Doc. ST/LEG/SER.E/11, at 776 (1993). 

106. 484 H.L. Hansard (6th ser.), col. 382, Feb. 5, 1987; 58 Brit. Y.B. Int'l L. 1987, at 600 (1988); aide 
memoire from the British Embassy, Washington, DC, May 26, 1987, Department of State File No. P87 
0069-0487. 

107. UK White Paper, France No. 1, Cm. 557 (1989); FCO Press Release No. 100, Nov. 2, 1988, 59 
Brit. Y.B. Int'l L. 1988, at 525 (1989); U.N. LOS BULL., No. 14, Dec. 1989, at 14: 



International Straits 229 

The existence of a specific regime of navigation in straits is generally accepted in the current state 
of international law. The need for such a regime is particularly clear in straits, such as the Straits of 
Dover, used for international navigation and linking two parts of the high seas or economic zones in 
the absence of any other route of similar convenience with respect to navigation. 

In consequence, the two Governments recognize rights of unimpeded transit passage for merchant 
vessels, state vessels and, in particular, warships following their normal mode of navigation, as well as 
the right of overflight for aircraft, in the Straits of Dover. It is understood that, in accordance with the 
principles governing this regime under the rules of international law, such passage will be exercised in 
a continuous and expeditious manner. 

The two Governments will continue to co-operate closely, both bilaterally and through the 
International Maritime organization, in the interests of ensuring the safety of navigation in the Straits 
of Dover, as well as on the southern North Sea and the Channel. In particular, the traffic separation 
scheme in the Straits of Dover will not be affected by the entry into force of the Agreement. 

With due regard to the interests of the coastal States the two Governments will also take, in 
accordance with international agreements in force and generally accepted rules and regulations, 
measures necessary in order to prevent, reduce and control pollution of the marine environment by 
vessels. 

108. 60 Brit. Y.B. Int'l L. 1989, at 668-69 (1990). 

109. 484 H.L. Hansard (6th ser.), col. 382, Feb. 5, 1987. 



Overflight Restrictions 231 



Chapter XII 
Overflight Restrictions 



The United States has protested the claims of several countries claiming 
jurisdiction to control overflight of ocean areas not subject to such 
jurisdiction. In most cases, these claims correspond with illegal territorial sea 
claims that exceed the 12 mile limit. 

In 1986, Cuba complained to the United States that U.S. military aircraft 
were operating within the Cuban Flight Information Region (FIR) without 
Cuban permission. The United States responded on August 20, 1986, as follows: 

The Department of State refers to the note of the Ministry of Foreign Affairs 
of Cuba dated May 15, 1986, concerning the interception of an unarmed United 
States Coast Guard HU-25A Falcon by two Cuban MIG-21 aircraft on December 
23, 1985, which was the subject of its note dated December 27, 1985. 

While the Government of the United States welcomes the statement in the 
Ministry's note that Cuba seeks to avoid any incident in air navigation, the 
Government of the United States does not accept the description of the intercep- 
tion contained in that note and stands by the description of the interception and 
the protest contained in its note of December 27, 1985. 

Furthermore, the Government of the United States rejects the implicit assertion 
in the note of 16 May, 1986, that state aircraft of the United States are required 
to notify and obtain authorization from Cuban authorities before entering Flight 
Information Regions (FIR) administered by Cuba. There is no authority for the 
imposition of such a requirement. It is therefore meaningless for the note to speak 
of this incident as a "violation" of the Cuban FIR. There can be no justification 
for the Cuban attempt to interfere with the flight of the U.S. Coast Guard aircraft 
in international airspace, thereby endangering the lives of the Coast Guard crew. 

The Government of the United States accordingly reiterates its strong protest 
of the actions of the Government of the Republic of Cuba. 1 

In August 1986, Ecuador interfered with the flight of a U.S. Air Force aircraft 
flying over the high seas more than 175 miles from the Ecuadorian coast. The United 
States had protested Ecuador's claim to a 200-mile territorial sea in 1 967. The State 
Department instructed American Embassy Quito to protest, drawing on the 
following points: 

1. Airway Upper Lima 308 comes no closer than 175 nautical miles (nm) to the 
Ecuador coast, and customary law as reflected in the 1982 Law of the Sea 
Convention (which neither the U.S. nor Ecuador has signed, but for different 
reasons) permits a territorial sea claim over the sea and adjacent airspace (i.e. 



232 Excessive Maritime Claims 

sovereignty) of no more than 12 nm from the coast. Ecuador claims a 200 nm 
territorial sea, which the U.S. does not recognize and which we protested in 1967. 
Except as might be required under the Convention on International Civil Aviation 
(Chicago Convention), the U.S. would oppose any attempt by Ecuador to require 
aircraft to give prior notice or seek prior permission in order to overfly areas 
beyond 12 nm from the coast. 

2. Under Annex 2 to the Chicago Convention civil aircraft which expect to 
transit a Flight Information Region (FIR) must file a flight plan, either at least 30 
minutes prior to take off or at least 10 minutes prior to entering a particular FIR, 
so to that extent civil aircraft are subject to a prior notification requirement. Civil 
aircraft must also abide by local flight regulations and instructions while in that 
FIR. While Annex 2 envisions variations from the 30/10 minute filing rule, the 
U.S. is generally opposed to efforts by any country to impose more burdensome 
requirements in the absence of compelling circumstances. 

3. The Embassy can approach appropriate GOE officials to reiterate our concern 
that such an incident not happen again, that the U.S. does not recognize 
Ecuadorian territorial sea/airspace claims beyond 12 nautical miles from the coast, 
and our hope that any new Ecuadorian regulations will be in full conformity with 
international aviation standards. Should the Ecuadorans seek advice or consulta- 
tions on drafting their regulations, we would, of course, be happy to assist. 

The United States protested Libya's establishment in 1973 of a "restricted 
area" of airspace within a 100 mile radius of Tripoli. 

In 1986, Peru complained that a USAF C-141 aircraft did not receive permission 
to fly into Peruvian claimed airspace. The United States responded as follows: 

The USG makes reference to an incident which occurred on August 8, 
1986, in which Peruvian authorities claimed the right to require a flight 
clearance request/approval for a US Air Force C-141 aircraft, tail number 
50250, flying no closer than 80 miles off the Peruvian coast enroute from 
Santiago to Panama. Customary international law permits a state to claim a 
territorial sea and a corresponding territorial airspace up to twelve miles in 
breadth. Beyond this limit, military or other state aircraft operate in interna- 
tional airspace and are not subject to the jurisdiction and control of air traffic 
control authorities of other countries. Accordingly, no clearance or approval 
is required for flights of U.S. military aircraft in international airspace. The 
USG wishes to call the attention of the GOP to this incident and reiterates 
that there was no justification under international law for such interference 
with the freedom of overflight by US Air Force aircraft. 

Information provided to the Embassy by the Department of State for use in 
connection with delivery of this note included the following: 

International law does not support the Peruvian claim to a 200nm territorial sea. 
USG respects Peruvian claim only out to a distance of 12nm, beyond which the 
high seas freedoms of navigation and overflight exist. 






Overflight Restrictions 233 

Although under the Chicago Convention, civil aircraft operating in international 
airspace are subject to certain International Civil Aviation Organization (ICAO) 
procedures when passing through a Flight Information Region (FIR) of another 
country, the military aircraft operating in international airspace are not subject to 
these procedures. State aircraft are not bound to comply with instructions of 
another nation's Air Traffic Control authorities while operating in international 
airspace. 

As a matter of policy, US military aircraft operating in international airspace 
normally comply with ICAO procedures except when compliance would not be 
in the best interests of the US because of military contingencies, classification of 
missions, political necessity or mission accomplishment. Aircraft then fly under 
"due regard" for safety of other aircraft. 6 

Following several similar incidents with Peru in 1987 and 1988, the United 
States protested as follows: 

... to refer to an incident occurring on 10 January 1988. On that date, a C-135 
aircraft of the United States Air Force was flying over the Pacific Ocean off the 
coast of Peru, its closest point of approach to the Peruvian coast having been 
approximately 80 nautical miles. While the aircraft was thus operating in interna- 
tional airspace, it was challenged by Peruvian authorities on the grounds that it 
was operating in claimed Peruvian airspace without authorization. 

This is the fourth such incident to have occurred since August 1986. During 
one such incident, which occurred on 5 August 1987, not only did Peruvian 
authorities unjustifiably challenge the right of the U.S. Air Force aircraft to transit 
off the Peruvian coast, but an intercepting aircraft of the Peruvian air force 
operated in a manner that unnecessarily and intentionally endangered the safety 
of the transiting U.S. Air Force aircraft and its crew. The Government of the 
United States vigorously protests all of these incidents. 

Customary and conventional international law, including that reflected in the 
1982 United Nations Convention on the Law of the Sea, permits a state to claim 
a territorial sea and corresponding territorial airspace up to twelve nautical miles 
in breadth. Beyond this limit military or other state aircraft operate in international 
airspace exercising the internationally recognized freedoms of navigation and 
overflight and are not subject to the jurisdiction or control of the coastal state. No 
coastal state clearance or approval is required to exercise such freedoms of 
navigation and overflight. 

The United States, therefore, vigorously protests the actions of the Govern- 
ment of Peru and reaffirms the right to continue to exercise the internationally 
recognized freedom of overflight in the international airspace more than twelve 
nautical miles from the baselines from which Peru may measure its territorial sea. 

The United States shall continue to exercise such overflight freedoms without 
prior notification to, or permission from, Peru or any other coastal State. 7 



234 Excessive Maritime Claims 

Talking points provided the Embassy included the following: 

I understand that the Peruvian military is primarily concerned with identifying 
the nationality of aircraft off its coast. While the United States Government can 
accept no Government of Peru right to restrict our freedom in international 
airspace, there are two simple and unobjectionable ways for the Government of 
Peru to identify such aircraft. 

The first and simplest method is to instruct military controllers to consult the 
ICAO flight plans routinely filed by [these] U.S. aircraft. This would enable the 
Government of Peru to reliably identify [these] aircraft off its coast. 

The second method would involve visual identification of transiting aircraft by 
Government of Peru aircraft. So long as such identifications are made in confor- 
mance with internationally recognized safe procedures, the United States Govern- 
ment would offer no objection. 

While I recognize that our Governments will not agree on this issue, I trust 
that we understand one another, and that the Government of Peru will consider 
one of these potential solutions. 

Notes 

1. Department of State Diplomatic Note dated Aug. 20, 1986, to the Cuban Interests Section of the 
Czechoslovakian Embassy, File No. P92 0100-0954. The Department's Note of Dec. 27, 1985 may be found 
in State Department telegram 392892 of Dec. 28, 1985 and File No. P93-0002-1166; the Cuban Note of 
May 15, 1986 is reported in U.N. Interests Section Havana telegram 2068 of May 19, 1986. 

2. See supra Chapter V, n. 5. 

3. State Department telegram 262333, Aug. 20, 1986. 

4. 1 973 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 302-03 and U.N. Security 
Council Doc. S/10956, June 20, 1973, 1975 id. 451-52 and 1977 id. 636. 

5. American Embassy Lima Note delivered August 15, 1986, American Embassy Lima telegram 9602, 
August 19, 1986. 

6. State Department telegram 255297, Aug. 14, 1986. 

7. Embassy Note delivered March 16, 1988 by American Embassy Lima, American Embassy Lima telegram 
03574, Mar. 17, 1988, pursuant to instructions contained in State Department telegram 061624, Feb. 27, 
1988. 

8. State Department telegram 061624, Feb. 27, 1988, para. 4. A similar protest was delivered by American 
Embassy Lima on July 7, 1992 (American Embassy Lima telegram 09328, July 4, 1992, pursuant to instructions 
contained in State Department telegram 204139, June 22, 1992), following Peruvian diversion of a USAF 
KC-135 on a routine flight June 8, 1992 from Panama to Argentina 100 miles west off the Peruvian coast. 
Wash Post., June 23, 1992, p.A-14. 



Archipelagic Sea Lanes Passage 235 



Chapter XIII 
Archipelagic Sea Lanes Passage 



Criteria 

Most of the essential elements of the transit passage regime in non-archipelagic 
international straits apply in straits forming part of an archipelagic sea lane. This 
right exists regardless of whether the strait connects high seas/EEZ with 
archipelagic waters (e.g. , Lombok Strait) or connects two areas of archipelagic 
waters with one another (e.g., Wetar Strait). All ships and aircraft, including 
warships and military aircraft, enjoy the right of archipelagic sea lanes passage 
while transiting through, under, or over the waters of archipelagos and adjacent 
territorial seas via archipelagic sea lanes. Archipelagic sea lanes include all routes 
normally used for international navigation and overflight, whether or not 
designated by the archipelagic nation. An archipelagic State may designate sea 
lanes and air routes suitable for the continuous and expeditious passage of foreign 
ships and aircraft through or over its archipelagic waters. Archipelagic sea lanes 
"shall include all normal passage routes . . . and all normal navigational chan- 
nels ..." Each sea lane is defined by a continuous line from the point of entry 
into the archipelago to the point of exit. Archipelagic sea lanes must conform 

Q 

to generally accepted international regulations, and shall be referred to the 

International Maritime Organization (IMO) as the "competent international 

organization with a view to their adoption." None have yet been submitted to 

the IMO. When sea lanes have been designated, ships and aircraft; in archipelagic 

sea lanes passage are required to remain within 25 miles to either side of the axis 

line and must approach no closer to the coastline than 10 percent of the distance 

between the nearest islands. 

Archipelagic sea lanes passage is defined under international law as the exercise 

of the freedom of navigation and overflight for the sole purpose of continuous 

and expeditious transit through archipelagic waters, in the normal modes of 

operation, by the ships and aircraft involved. This means that submarines may 

transit while submerged, and that surface warships may carry out those activities 

normally undertaken during passage through such waters, including activities 

necessary to their security, such as formation steaming and the launching and 

recovery of aircraft. The right of archipelagic sea lanes passage cannot be 

1 "\ 
impeded, or suspended by the archipelagic nation for any reason. The right of 

archipelagic sea lanes passage is recognized in the legislation of less than half the 

States that have claimed archipelagic status: Antigua and Barbuda, Fiji, Kiribati, 

St. Vincent and the Grenadines, Solomon Islands and Tuvalu, but not by the 

other states claiming archipelagic status: Cape Verde, Comoros, Indonesia, 



236 Excessive Maritime Claims 

Marshall Islands, Papua New Guinea, Philippines, Sao Tome and Principe, 
Trinidad and Tobago, and Vanuatu. 

Innocent passage applies in other archipelagic waters seaward of the internal 
waters of the islands of the archipelago. 

If a State meets all the criteria but has not claimed archipelagic status, then 
high seas freedoms exist in all maritime areas outside the territorial seas of the 
individual islands; transit passage applies in straits used for international naviga- 
tion; and innocent passage applies in other areas of the territorial sea. 

Excessive Claims 

In response to statements made during the December 1982 plenary meetings of 
the Third UN Conference on the Law of the Sea (UNCLOS III) asserting that the 
right of archipelagic sea lanes passage is a new right and that it may be exercised 
only in designated lanes, on March 8, 1983, the United States exercised its right of 
reply stating: 

A small number of speakers [e.g., Iran, 17 Official Records 106, at para. 69] 
asserted that archipelagic sea lanes passage ... is a "new" right reflected in the 
Convention adopted by the Conference. To the contrary, long-standing interna- 
tional practice bears out the right of all States to transit . . . waters which may be 
eligible for archipelagic status. Moreover, these rights are well established in 
international law. Continued exercise of these freedoms of navigation and 
overflight cannot be denied a State without its consent. 

One speaker [Philippines, 17 Official Records 69, at para. 52] also asserted 
that archipelagic sea lanes passage may be exercised only in sea lanes designated 
and established by the archipelagic State. This assertion fails to account for 
circumstances in which all normal sea lanes and air routes have not been designated 
by the archipelagic state in accordance with Part IV, including articles 53 and 54. 
In such circumstances, archipelagic sea lanes passage may be exercised through all 
sea lanes and air routes normally used for international navigation. The United 
States regards these rights as essential components of the archipelagic regime if it 
is to find acceptance in international law. 16 

In conjunction with the deposit of its instrument of ratification of the 1982 
LOS Convention on May 8, 1984, the Government of the Philippines asserted 
certain rights over archipelagic straits inconsistent with international law. The 
Philippines stated its understanding that: 

The concept of archipelagic waters is similar to the concept of internal waters 
under the Constitution of the Philippines, and removes straits connecting these 
waters with the economic zone or high sea from the rights of foreign vessels to 
transit passage for international navigation. 

The United States protested as follows: 



Archipelagic Sea Lanes Passage 237 

The Government of the United States wishes to observe that, as generally understood 
in international law, including that reflected in the 1982 Law of the Sea Convention, 
the concept of internal waters differs significanuy from the concept of archipelagic 
waters. Archipelagic waters are only those enclosed by properly drawn archipelagic 
baselines and are subject to the regimes of innocent passage and archipelagic sea lanes 
passage. The Government of the United States further wishes to point out that straits 
linking the high seas or exclusive economic zone with archipelagic waters, as well as 
straits within archipelagic waters, are, if parts of normal passage routes used for 
international navigation or overflight through or over archipelagic waters, subject to 
the regime of archipelagic sea lanes passage. 



The Government of the United States notes also the statement of the Govern- 
ment of the Republic of the Philippines respecting the sovereignty of the 
Philippines over sea lanes subject to the regime of archipelagic sea lanes 
passage. A coastal State properly claiming archipelagic waters may lawfully 
exercise sovereignty over archipelagic sea lanes through such waters, if such 
sea lanes encompassing all normal passage routes for international navigation 
are designated in accordance with international law, and if the regime of 
archipelagic sea lanes passage is applied. The Government of the United States 
wishes to point out, however, that customary international law, as reflected in 
the 1982 Law of the Sea Convention, only permits such a coastal State to apply 
to vessels and aircraft engaged in archipelagic sea lanes passage specified types 
of legislation concerning navigational safety and maritime traffic regulation, 
pollution prevention and control, prevention of unauthorized fishing, and 
prevention of certain acts in contravention of customs, fiscal, immigration or 
sanitary legislation. Furthermore, such laws and regulations shall not dis- 
criminate in form or in fact among foreign ships or in their application have 
the practical effect of denying, hampering or impairing the right of archipelagic 
sea lanes passage. 8 

Several other nations also protested the Philippine declaration, including 
Australia, Bulgaria, Byelorussia, the former Czechoslovakia, the Ukraine and the 
former USSR. Thereafter, on October 26, 1988, the Secretary-General re- 
ceived, from the Government of the Philippines, a declaration concerning the 
Australian objection which reads in part: 

The Philippine Government intends to harmonize its domestic legislation with 
the provisions of the Convention. 

The necessary steps are being taken to enact legislation dealing with ar- 
chipelagic sea lanes passage and the exercise of Philippine sovereign rights over 
archipelagic waters, in accordance with the Convention. 

The Philippine Government, therefore, wishes to assure the Australian Gov- 
ernment and the States Parties to the Convention that the Philippines will abide 
by the provisions of said Convention. 19 



238 Excessive Maritime Claims 

In 1987, the United States sought from the Government of Trinidad and 
Tobago clarification of certain portions of its Archipelagic Waters and Exclusive 
Economic Zone Act, 1986, in relevant part as follows: 

First, although sections 10-13 of Act Number 24 are generally in accord with Part 
IV of the 1982 Law of the Sea Convention, and recognize the right of innocent passage 
in claimed archipelagic waters, the legislation does not expressly recognize the right 
of archipelagic sea lanes passage as provided in customary international law and 
reflected in article 53 of the Law of the Sea Convention. The United States notes that 
Section 32 of the legislation enables the President to make regulations, "for the 
designation of archipelagic sea-lanes [passage]." .... The United States further notes 
that the right of archipelagic sea lanes passage, as reflected in article 53 of the 1982 
Convention on the Law of the Sea, is enjoyed by all States, in normal passage routes 
for international navigation and overflight, through and over archipelagic waters and 
the adjacent territorial sea. Because the right of archipelagic sea lanes passage is an 
indispensable one which is a necessary concomitant to an archipelagic State juridical 
regime, the United States would look forward to a clarification by the Government 
of Trinidad and Tobago that the legislation in question clearly provides for the right 
of archipelagic sea lanes passage. 20 

On July 9, 1987, the Ministry of External Affairs of Trinidad and Tobago 
replied, in part: 

With respect to the clarification sought by the Embassy that the legislation in 
question clearly provides for the right of archipelagic sea lanes passage, it is advised 
that paragraphs 1, 2 and 12 of Article 53 of the Convention provide that an 
archipelagic State may designate sea lanes and air routes thereabove, suitable for 
the continuous and expeditious passage of foreign ships and aircraft through or 
over its archipelagic waters and the adjacent territorial sea; that all ships and aircraft 
enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes; 
and that if an archipelagic State does not designate sea lanes or air routes, the right 
of archipelagic sea lanes passage may be exercised through the routes normally 
used for international navigation. 

The foregoing provisions are therefore explicit in that the right of archipelagic 
sea lanes passage is conditioned by certain actions either being taken or not being 
taken by the archipelagic State. In this respect, no action has been taken so far by 
the Government of the Republic of Trinidad and Tobago to designate any such 
sea lanes and air routes. It is intended that regulations made in this regard under 
section 32(5) of the Act will take into account article 53 of the 1982 United 
Nations Convention on the Law of the Sea to which Trinidad and Tobago is a 
contracting State. 21 

Notes 

1. LOS Convention, article 54, applying mutatis mutandis articles 39 (duties of ships and aircraft during 
their passage), 40 (research and survey activities), and 42 and 44 (laws, regulations and duties of the bordering 
State relating to passage). 



Archipelagic Sea Lanes Passage 239 

2. OFFSHORE CONSULTANTS, INC., NAVIGATIONAL RESTRICTIONS WITHIN THE NEW LOS 
CONTEXT: GEOGRAPHICAL IMPLICATIONS FOR THE UNITED STATES (L.M. Alexander, ed. Final 
Report under Defense Supply Service Contract 903-84-C-0276, Dec. 1986) at 155-56. 

3. LOS Convention, article 53. 

4. Id., article 53(12). 

5. Id., article 53(1). 

6. Id., article 53(4). 

7. Id., articles 53(4), 53(5) & 53(12). 

8. Id., article 53(8). 

9. Id., article 53(9). 

10. Id., article 53(5). 

11. Id., article 53(3). 

12. U.S. Department of the Navy, Annotated Supplement to The Commander's Handbook on the Law of Naval 
Operations, NWP 9 (Rev. A)/FMFM 1-10 (1989) [hereinafter NWP 9 (Rev. A) ANN. SUPP.], para. 2.3.4.1. 

13. LOS Convention, articles 54 & 44. 

14. See U.N. LOS: Practice of Archipelagic States 8 (Antigua and Barbuda), 38 (Fiji), 59 (Kiribati), 89 
(St. Vincent and the Grenadines), 103 (Solomon Islands), and 129 (Tuvalu). Australia has stated that it accepts 
the archipelagic regime set forth in Part IV of the LOS Convention. 11 Aust. Y.B. Int'l L. 238 (1991) (letter 
from Foreign Minister Hayden to the Australian Financial Review, Dec. 24, 1985). 

15. LOS Convention, article 52(1). Consequently, "submarines must remain on the surface and fly their 
national flag. Any threat or use of force directed against the sovereignty, territorial integrity, or political 
independence of the archipelagic nation is prohibited. Launching and recovery of aircraft are not allowed, nor 
may weapons exercises be conducted. The archipelagic nation may promulgate and enforce reasonable 
restrictions on the right of innocent passage through its archipelagic waters for reasons of customs, fiscal, 
immigration, fishing, pollution, and sanitary purposes. [1982 LOS Convention, articles 52(1), 19(2), 20 & 21.] 
Innocent passage may be suspended temporarily by the archipelagic nation in specified areas of its archipelagic 
waters when essential for the protection of its security, but it must first promulgate notice of its intentions to 
do so and must apply the suspension in a nondiscriminating manner. [1982 LOS Convention, article 52(2).] 
There is no right of overflight through airspace over archipelagic waters outside of archipelagic sea lanes." 
NWP 9A (Rev. A) ANN. SUPP. at para. 2.3.4.2. 

16. U.N. Doc. A/CONF.62/WS/37, 17 Oflicial Records of the Third U.N. Conference on the Law of 
the Sea 244 (citations added). 

17. The declaration made by the Government of the Philippines upon deposit of its instrument of 
ratification on May 8, 1984, may be found in U.N., Status of the United Nations Convention on the Law of 
the Sea 37. See also Chapter IX, text following n. 17. The text of the Philippine declaration referred to but 
not quoted above is as follows: 

1. The signing of the Convention by the Government of the Republic of the Philippines shall not in 
any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and 
arising from the Constitution of the Philippines 



4. Such signing shall not in any manner impair or prejudice the sovereignty of the Republic of the 
Philippines over any territory over which it exercises sovereignty, such as the Kalayaan Islands, and 
the waters appurtenant thereto 



6. The provisions of the Convention on archipelagic passage through sea lanes do not nullify or impair 
the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of 
authority to enact legislation to protect its sovereignty, independence, and security. 

1 8. Diplomatic Note delivered January 29, 1986, from American Embassy Manila, pursuant to instructions 
in State Department telegram 115912, Apr. 17, 1985. American Embassy Manila telegram 03261, Jan. 29, 
1986. 

19. U.N. Current Developments in State Practice No. II, at 98; 12 Aust. Y.B. Int'l L. 385 (1992). 

20. Diplomatic Note No. 34 delivered in March 1987, from American Embassy Port of Spain, pursuant 
to instructions contained in State Department telegram 075631, Mar. 14, 1987. American Embassy Port of 
Spain telegram 00822, Mar. 23, 1987. 



240 Excessive Maritime Claims 

21. Diplomatic Note No. 743 dated July 9, 1987, from the Ministry of External Affairs of Trinidad and 
Tobago, reported in American Embassy Port of Spain telegram 01973, July 14, 1987. Trinidad's Archipelagic 
Waters and Exclusive Economic Zone Act, 1986, may be found in U.N. Current Developments in State 
Practice No. II, at 36-47; and U.N. LOS: Practice of Archipelagic States 112-23. 



Navigation in Exclusive Economic Zones 241 



Chapter XIV 
Navigation in Exclusive Economic Zones 



Criteria 

In the exclusive economic zone (EEZ), all States enjoy, subject to the relevant 
provisions of the LOS Convention, the freedoms of navigation (referred to in 
Article 87) of navigation and overflight on and over the high seas and of the 
laying of submarine cables and pipelines, and of the internationally lawful uses 
of the sea related to those freedoms, such as those associated with the operation 
of ships, aircraft and submarine cables and pipelines, and compatible with the 
other provisions of the LOS Convention. Articles 88-115 and other pertinent 
rules of international law apply to the EEZ insofar as they are not incompatible 
with the LOS Convention. 

In exercising their rights, and in performing their duties, under the LOS 
Convention in the EEZ, States shall have due regard to the rights and duties of 
the coastal State in accordance with the provisions of the LOS Convention and 
other rules of international law in so far as they are not incompatible with Part 
IV (EEZ) of the LOS Convention. 

Regarding the rights of other States in the exclusive economic zone, the 
Restatement (Third) Foreign Relations Law of the United States provides that: 

All states enjoy, as on the high seas, the freedoms of navigation and overflight, 
freedom to lay submarine cables and pipelines, and the right to engage in other 
internationally lawful uses of the sea related to these freedoms, such as those 
associated with the operation of ships or aircraft. 

The comments to this section describe these rights as "both qualitatively and 
quantitatively the same as the rights recognized by international law for all States 
on the high seas." Consequently, warships and military aircraft are entitled to 
exercise these rights. 

Excessive Claims 

On December 7, 1982, the representative of Brazil made the following 
statement at the closing plenary session of the Third UN Conference on the 
Law of the Sea: 

. . . the Convention on the Law of the Sea is much less explicit concerning the 
security interests of the coastal State in the area between 12 and 200 miles. It was 
impossible to overcome the intransigence of the major naval Powers. As a result 
of the basic rule of consensus adopted by this Conference, gaps and ambiguities 



242 Excessive Maritime Claims 

can be solved by resorting to the option defined in article 310 of the Convention, 
which allows formal declarations at the time of signature, ratification or adherence, 
"with a view, inter alia, to the harmonization of [national] laws and regulations 
with the provisions of this Convention." 

. . . [I]t is our understanding the provisions of article 301, which prohibit the 
threat or use of force on the sea against the territorial integrity or independence 
of any State, apply particularly to the maritime areas under the sovereignty or 
jurisdiction of the coastal State. In other words, we understand that the navigation 
facilities accorded third world countries within the exclusive economic zone 
cannot in any way be utilized for activities that imply the threat or use of force 
against the coastal State. More specifically, it is Brazil's understanding that the 
provisions of the Convention do not authorize other States to carry out military 
exercises or manoeuvres within the exclusive economic zone, particularly when 
these activities involve the use of weapons or explosives. . . . 4 

On March 8, 1983, the United States exercised its right of reply, stating: 

Some speakers described the concept of the exclusive economic zone in a 
manner inconsistent with the text of the relevant provisions of the Convention 
adopted by the Conference. 



This concept, as set forth in the Convention, recognizes the interest of the 
coastal State in the resources of the zone and authorizes it to assert jurisdiction 
over resource-related activities therein. At the same time, all States continue to 
enjoy in the zone traditional high seas freedoms of navigation and overflight and 
the laying of submarine cables and pipelines, and other internationally lawful uses 
of the sea related to these freedoms, which remain qualitatively and quantitatively 
the same as those freedoms when exercised seaward of the zone. Military 
operations, exercises and activities have always been regarded as internationally 
lawful uses of the sea. The right to conduct such activities will continue to be 
enjoyed by all States in the exclusive economic zone. This is the import of article 
58 of the Convention. Moreover, Parts XII [Protection and Preservation of the 
Marine Environment] and XIII [Marine Scientific Research] of the Convention 
have no bearing on such activities. 

Article 17, paragraph 11 of the UN Convention against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances, concluded at Vienna on Decem- 
ber 20, 1988, reads, in the context of enforcement at sea, as follows: 

Any action taken in accordance with this article shall take due account of the need 
not to interfere with or affect the rights and obligations of and the exercise of 
jurisdiction of coastal States in accordance with the international law of the sea. 

The report of the U.S. Delegation to the Diplomatic Conference stated: 



Navigation in Exclusive Economic Zones 243 

At the plenipotentiary conference, the U.S. delegation stated for the record its 
understanding that, consistent with the international law of the sea, with regard 
to illicit trafficking by sea, Article 17, paragraph 11 refers to the limited set of 
situations in which a coastal State has rights beyond the outer limit of the territorial 
sea, i.e., those involving hot pursuit in the exclusive economic zone and on the 
high seas and competent exercises of contiguous zone jurisdiction. The paragraph 
does not imply endorsement of any broader coastal State claims regarding illicit 
traffic interdiction in the exclusive economic zone. The United States delegation 
views this paragraph as a straightforward non-derogation clause intended to 
preserve, and not to affect in any way, existing rights and obligations under 
international law. As noted above, coastal State consent is not necessary under the 
international law of the sea for foreign flag law enforcement against vessels not 
flying the flag of that coastal State beyond the coastal State's territorial sea. The 
attempt to secure a broader coastal State right or claim to sovereignty in the 
exclusive economic zone failed during negotiations on the 1982 Law of the Sea 
Convention, and that result has not been altered here. 7 

On December 20, 1988, Brazil signed this Convention with the following 
declaration: 

It is the understanding of the Brazilian Government that paragraph 1 1 of article 
17 does not prevent a coastal State from requiring prior authorization for any 
action under this article by other States in its Exclusive Economic Zone. 8 

On December 27, 1989, the twelve States members of the European Com- 
munity deposited identical objections to the Brazilian statement on signature, 
as follows: 

. . . , Member State of the European Community, attached to the principle of 
freedom of navigation, notably in the exclusive economic zone, considers that the 
declaration of Brazil concerning paragraph 1 1 of Article 17, of the United Nations 
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 
adopted in Vienna on 20 December 1988, goes further than the rights accorded 
to coastal states by international law. 

On May 10, 1988, Brazil deposited its instrument of ratification of the Treaty 
on the Prohibition of the Emplacement of Nuclear Weapons and Other 
Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the 
Subsoil Thereof. A note from the Brazilian Embassy containing an under- 
standing read as follows: 

.... It is the understanding of the Brazilian Government that the word 
"observation" in Article III, Paragraph 1 of the Treaty refers only to observation 
that is incidental to the normal course of navigation, in accordance with interna- 
tional law. * 



244 Excessive Maritime Claims 

The United States Department of State responded to the Brazilian Embassy, on 
March 16, 1989, as follows: 

The Government of the United States of America draws the attention of the 
Government of Brazil to the provisions of Article III of the Seabed Treaty that 
address verification and inspection rights of State Parties. The United States 
expects all States Parties to exercise their rights and fulfill their obligations in 
accordance with the Seabed Treaty. 

Article III provides that all States Parties may "verify through observation the 
activities of other States Parties to the Treaty" beyond the 12-mile seabed zone, 
so long as such observation does not interfere with the activities of other States 
Parties and is conducted with due regard for rights recognized under international 
law. It is the view of the Government of the United States of America that, under 
customary international law and Article III of the Treaty, these observations may 
be undertaken whether or not they are incidental to a so-called "normal course 
of navigation," and that such activity is not subject to unilateral coastal State 
restriction. 

In 1978, Costa Rica enacted a law requiring fishing vessels wishing to transit 

the Costa Rican EEZ but not intending to fish to notify Costa Rican authorities 

1 ^ 
upon entering and leaving those waters and to transit within 48 hours. In 1979, 

the United States protested this claim as follows: 

It is the position of the United States that there is no basis in international law for 
a coastal state to require notification of entry and departure from fishing vessels 
transiting the waters within 200 miles of such state or to limit the time of transit. 14 

Relying in part on this law, in 1991, Costa Rica issued a decree requiring that 
every foreign flag fishing vessel navigating through Costa Rican waters "must, 
prior to entry, apply for a permit for passage or navigation" through Costa Rican 
waters. On August 14, 1992, four U.S. fishing vessels transiting the Costa 
Rican EEZ en route to Hawaii via the Panama Canal were intercepted by the 
Costa Rican Coast Guard 97 miles offshore and detained. The vessels were 
neither fishing nor outfitted for fishing. The vessels were subsequently fined for 
transiting the Costa Rican EEZ without the permit required for fishing vessels. 
On August 18, 1992 the United States protested the detention of these vessels, 
in part, as follows: 

The seizure of the four U.S vessels, and the decree upon which the seizure was 
based, directly contravene the freedom of navigation recognized under interna- 
tional law, as reflected in the 1982 United Nations Convention on the Law of 
the Sea (the Convention). 

Under Article 56 of the Convention, a coastal State such as Costa Rica may 
exercise exclusive jurisdiction over fishing activities within its exclusive economic 



Navigation in Exclusive Economic Zones 245 

zone (EEZ), which may extend up to 200 miles from shore. Under article 58 of 
the Convention, however, the vessels of all states, including fishing vessels, enjoy 
the freedom of navigation referred to in article 87 of the Convention while such 
vessels are within the EEZ of a coastal State. 

The four U.S. vessels in question were not engaged in fishing activity, but were 
instead exercising their freedom of navigation through the Costa Rican EEZ. The 
four vessels have no fishing gear on board, and were merely in transit from Florida 
to California. Moreover, as subsequent inspection of the vessels by Costa Rican 
authorities revealed they were not engaged in the transport of any contraband or 
in any other illegal activity. 

The United States Government cannot accept this clear and serious violation of 
the right of these vessels to freedom of navigation through the Costa Rican EEZ, 
a right which the Government of Costa Rica is bound to respect under interna- 
tional law. The United States Government accordingly protests the seizure of 
these vessels and insists upon their immediate release without fine or other 
penalty. 17 

The Government of Costa Rica replied, in a note delivered August 28, 1992, 
that its action and these decrees were consistent with Articles 73(1) and 58(3) of 

— 1 R 

the LOS Convention. Nevertheless, on September 4, 1992, a majority of the 
Superior Court of Liberia, Costa Rica, stayed the criminal proceedings on the 
grounds that these vessels were not "adversely affecting the ichthyological riches 
for which protection is sought." The Court noted, without ruling on the 
lawfulness of the challenged decree, that the law established a presumption that 
a fishing vessel with no transit permit is engaged in fishing activities in contraven- 
tion of Costa Rican law. The Court thereupon dismissed the charges against 
the vessels, masters and crew, and ordered their release from detention. On 
October 21, 1992, the United States delivered a demarche, which read in part: 

We are disappointed, however, that the court dismissed the charges in a manner 
that leaves standing the requirement that foreign fishing vessels must obtain a 
permit to transit the Costa Rican EEZ. 

. . . [FJoreign fishing vessels have the right under international law to freedom of 
navigation through Costa Rica's EEZ without being required to notify or to seek 
permission from Costa Rican authorities for such passage. The Government of 
the United States remains very concerned that the permit requirement in question 
remains a part of Costa Rican law. This requirement, if invoked again, could result 
in another serious incident like the one we recently experienced. 

The Government of the United States understands that since the dismissal of the 
recent case by the Superior Court, the Government of Costa Rica has been 
reviewing the executive decree (Decree 20404-MOPT) that established the 
permit requirement. In light of this, and in light of Costa Rica's long-standing 
commitment to international law, the Government of the United States urges that 



246 Excessive Maritime Claims 

steps be taken to ensure that Costa Rican law is made compatible with the right 
to freedom of navigation guaranteed under international law. 

In February 1993, the Government of Thailand issued a circular note 
emphasizing the right of all vessels, including fishing vessels, to freedom of 
navigation in other States' EEZs, as well as to transit passage in international 
straits, and to innocent passage in foreign territorial seas. 

In giving its advice and consent to ratification of the 1989 Convention for 
the Prohibition of Fishing with Long Driftnets in the South Pacific, 
the United States Senate attached its understanding that: 

Article 3 provides for measures consistent with international law to restrict driftnet 
fishing activities by vessels within areas under a party's fisheries jurisdiction. It is 
the United States understanding that the measures in Article 3 will only be applied 
when consistent with navigation and other international transit rights under 
customary international law and as reflected in the 1982 United Nations Conven- 
tion on the Law of the Sea. 23 

The 1989 Basel Convention on the Control of Transboundary Move- 

O A 

ments of Hazardous Wastes and Their Disposal establishes a notice and 
consent system in which any export, including any export by ship, of hazardous 
waste requires the prior approval of, inter alia, any transit State. That term is 
defined in Article 2(12) as any State "through which" wastes are transported on 
their way from an exporting State for disposal in another State. As noted in the 
Secretary of State's letter of submittal, "the United States has consistently 
maintained that, under international law, notification to or authorization of 

coastal States is not required for passage through . . . exclusive economic 

it 

zones."' This is reflected in Article 4(12) of the Convention, which provides 
that the Convention does not affect "the exercise by ships and aircraft of all States 
of navigational rights and freedoms as provided for in international law and as 
reflected in relevant international instruments." However, Article 4(12) also 
provides that nothing in the Convention "shall affect in any way . . . the 
sovereign rights and the jurisdiction which States have in their exclusive 
economic zones and their continental shelves in accordance with international 
law." 

This compromise formula prompted Portugal to declare that it required the 
notification of all transboundary movements of such wastes across its waters, and 
several Latin American countries, including Colombia, Ecuador, Mexico, Uru- 
guay and Venezuela, to declare that, under the Basel Convention, their rights 
as coastal States were adequately protected. Germany, Italy and the United 
Kingdom, on the other hand, declared that nothing in the Convention requires 
any notice to or consent of the coastal State for vessels exercising freedom of 
navigation through the EEZ. 



Navigation in Exclusive Economic Zones 247 

In granting its advice and consent to ratification of the Basel Convention, the 
U.S. Senate stated the understanding of the United States of America that "a 
State is a 'transit State* within the meaning of the convention only if wastes are 
moved, or are planned to be moved, through its inland waterways, inland waters, 
or land territory.*' 

Survey Activities in the Exclusive Economic Zone 

A few States have questioned the activities of military survey and hydrographic 
vessels in their EEZs. The United States has explained along the following lines 
why such survey activities are not subject to coastal State regulation. 

International law, as reflected in the LOS Convention, authorizes coastal 
States to claim limited rights and jurisdiction in an EEZ. As noted above, the 
jurisdictional rights relate primarily to the exploration, exploitation, and conser- 
vation of natural resources, marine scientific research (MSR), and the marine 
environment. Beyond the territorial sea (in which the coastal State enjoys full 
sovereignty), all States enjoy the freedoms of navigation and overflight and other 
related uses of the sea within the EEZ, provided that such freedoms are exercised 
with due regard to the rights of the coastal State and other States. 

Survey Activities vs. Marine Scientific Research 

The rights all States enjoy include the right to conduct survey activities within 
the EEZ. Survey activities are not MSR. The LOS Convention distinguishes 
clearly between the concepts of "research" and "MSR*' on the one hand, and 
"hydrographic surveys'* and "survey activities*' on the other hand. Article 
19(2)(j) of the LOS Convention includes "research or survey activities" among 
those activities identified as being inconsistent with innocent passage in the 
territorial sea. Article 21(l)(g) authorizes the coastal State to adopt laws and 
regulations, in conformity with the provisions of the Convention and other rules 
of international law, relating to innocent passage through the territorial sea in 
respect of "marine scientific research and hydrographic surveys". Article 40, 
entitled "research and survey activities," provides that in transit passage through 
straits used for international navigation, foreign ships, including "marine scien- 
tific research and hydrographic survey ships", may not carry out "any research 
or survey activities" without the prior authorization of the States bordering 
straits. The same rule applies to ships engaged in archipelagic sea lanes passage 
(article 54). 

On the other hand, Part XIII of the LOS Convention fully regulates marine 
scientific research; it does not refer to survey activities at all. Article 246 of the 
LOS Convention provides that coastal States, in the exercise of their jurisdiction 
within the EEZ, have the right to regulate, authorize and conduct MSR in 
accordance with the relevant provisions of the Convention. It specifies that MSR 
in the EEZ shall be conducted with the consent of the coastal State. 



248 Excessive Maritime Claims 

And while the Convention, by its terms, limits survey activities during passage 
in the territorial sea, international straits and archipelagic sea lanes, it does not 
limit the activities of survey ships in the EEZ. Rather, the conduct of surveys 
in the EEZ is an exercise of the freedoms of navigation and other internationally 
lawful uses of the sea related to those freedoms, such as those associated with the 
operations of ships, which article 58 of the LOS Convention guarantees to all 
States. 

This conclusion, that MSR is distinct from survey activities, is supported by 
other respected publications on this subject. 

Definitions 

The LOS Convention does not define the terms "marine scientific research**, 
"survey activities", "hydrographic survey,*' or "military survey". However, the 
concepts are distinct. 

The United States accepts that "marine scientific research'* 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. MSR 
includes oceanography, marine biology, fisheries research, scientific ocean 
drilling and coring, geological/geophysical scientific surveying as well as other 
activities with a scientific purpose. 

The generally accepted modern international interpretation of "hydrographic 
survey", which is shared by the United States, is to obtain information for the 
making of navigational charts and safety of navigation. It includes determination 
of one or more of several classes of data in coastal or relatively shallow 
areas — depth of water, configuration and nature of the natural bottom, directions 
and force of currents, heights and times of tides and water stages, and hazards 
for navigation — for the production of nautical charts and similar products to 
support safety of navigation. 

The United States considers that military surveys refer to activities undertaken 
in the ocean and coastal waters involving marine data collection (whether or not 
classified) for military purposes. Military surveys can include oceanographic, 
marine geological, geophysical, chemical, biological and acoustic data. Equip- 
ment used can include fathometers, swath bottom mappers, side scan sonars, 
bottom grab and coring systems, current meters and profilers. While the means 
of data collection used in military surveys may sometimes be the same as that 
used in MSR, information from such activities, regardless of security classifica- 
tion, is intended not for use by the general scientific community, but by the 
military. 

Military surveys are not specifically addressed in the LOS Convention and 
there is no language stating or implying that military surveys may be regulated 
in any manner by coastal States outside their territorial sea or archipelagic waters. 
The United States therefore considers it to be fully consistent with the LOS 



Navigation in Exclusive Economic Zones 249 

Convention that such surveys are a high seas freedom and the United States 
reserves the right to engage in military surveys anywhere outside foreign 
territorial seas and archipelagic waters. To provide prior notice or request 
permission would create an adverse precedent for restrictions on mobility and 
flexibility of military survey operations. 

These definitions clearly distinguish between MSR, which the coastal State 
can regulate, and hydrographic survey and military survey activities, which are 
freedoms the coastal State cannot regulate outside its territorial sea. 

Military Activities 

In the view of the United States, the LOS Convention recognizes that all 
States have the right to conduct military activities within the EEZ, provided that 
they do so with due regard to the rights of the coastal State and other States. 
Appropriate activities include launching and landing of aircraft, operating 
military devices, intelligence collection, weapons exercises, and military sur- 
veys. There is no general competence of the coastal State over military activities 
in the EEZ. It follows that military survey activities conducted outside foreign 
territorial seas are not subject to coastal State regulation. 

Notes 

1. 2 RESTATEMENT (THIRD), FOREIGN RELATIONS LAW OF THE UNITED STATES § 514(2) 
[hereinafter RESTATEMENT (THIRD)]. The Court of Arbitration for the Delimitation of Maritime Areas 
between Canada and France, in its decision in the Case Concerning Delimitation of Maritime Areas (St. Pierre 
and Miquelon), June 10, 1992, 31 I.L.M. 1145 (1992), noted that: 

In the written and oral proceedings both Parties have underscored the importance they attach to the 
principle of freedom of navigation through the 200 mile zone guaranteed by Article 58 of the 1982 
Convention, a provision that undoubtedly represents customary international law as much as the 
institution of the 200 mile zone itself. 

2. 2 RESTATEMENT (THIRD) § 514 comment d, at 58. 

3. The various incidents at sea agreements entered into by the Soviet Union with Canada, France, the 
Federal Republic of Germany, Italy, and the United Kingdom all relate to activities by their military ships and 
aircraft "outside territorial waters". See UKTS No. 5 (1987), 37 Int'l & Comp. L.Q. 420 (1988), U.N. LOS 
BULL., No. 10, Nov. 1987, at 97 (UK, Jul. 15, 1986); No. 14, Dec. 1989, at 15 (FRG, Oct. 25, 1988); No. 
16, Dec. 1990, at 23 (France, July 4, 1989); No. 16, at 35 (Italy, Nov. 30, 1989); No. 18, June 1991, at 25 
(Canada, Nov. 20, 1989). The USSR has similar INCSEA agreements with Greece, the Netherlands, Norway, 
and Spain. FBIS-SOV-92-161, Aug. 19, 1992, at 18. 

4. 17 Official Records of the Third U.N. Conference on the Law of the Sea 40, paras. 26 & 28. Brazil's 
declarations on ratification of the Convention were substantially similar to the above; they may be found in 
U.N. Current Developments in State Practice No. II, at 88. Brazil's implementing legislation, Law 8,617 of 
January 4, 1993, article 9, continues to assert these views which are inconsistent with the relevant provisions 
of the LOS Convention. U.N. LOS BULL., No. 23, June 1993, at 19. Uruguay made a similar declaration 
on signature and ratification of the Convention: 

In the exclusive economic zone, enjoyment of the freedom of international communication in 
accordance with the way it is defined and in accordance with other relevant provisions of the 
Convention excludes any non-peaceful use without the consent of the coastal State, for instance, 
military exercises or other activities which may affect the rights or interests of that State . . . 



250 Excessive Maritime Claims 

U.N., Multilateral Treaties Deposited with the Secretary-General: Status as of Dec. 31, 1992, UN. Doc. 
ST/LEG/SER.E/ll,at774 (1993). 

5. U.N. Doc. A/CONF.62/WS/37, 17 Official Records of the Third U.N. Conference on the Law of 
the Sea 244. On signature of the Convention Italy confirmed its written statement dated March 7, 1983 that: 

according to the Convention, the Coastal State does not enjoy residual rights in the exclusive economic 
zone. In particular, the rights and jurisdiction of the Coastal State in such zone do not include the right 
to obtain notification of military exercises or maneuvers or to authorize them. 

U.N., Multilateral Treaties Deposited with the Secretary-General: Status as of Dec. 31, 1992, U.N. Doc. 
ST/LEG/SER.E/11, at 770 (1993). 

6. T.I.A.S. No. _, 28 I.L.M. 519-20 (1989). 

7. Sen. Exec. Rep. 101-15, 101st Cong., 1st Sess., at 97 (1989). 

8. Multilateral Treaties Deposited with the Secretary-General, Status as of Dec. 31, 1992, at 268. Brazil 
does not appear to have maintained this understanding upon deposit of its instrument of ratification on July 
17, 1991. Id. On signature, Tanzania stated its understanding that: 

Subject to a further determination on ratification, the United Republic of Tanzania declares that the 
provisions of article 17 paragraph 11 shall not be construed as either restraining in any manner the 
rights and privileges of a coastal State as envisaged by the relevant provisions relating to the Exclusive 
Economic Zone of the Law of the Sea Convention, or, as according third parties rights other than 
those so recognized under the Convention. 

Id. at 270. As of July 1994, Tanzania had not deposited its instrument of ratification. 

9. Id. at 271; 61 Brit Y.B. Int'l L. 1990, at 588 (1991). In signing the Convention on Jan. 18, 1989, the 
Netherlands made the following statement: 

[The Government of the Netherlands] understands the reference (in para. 3) to "a vessel exercising 
freedom of navigation" to mean a vessel navigating beyond the external limits of the territorial sea. 

The safeguard-clause contained in para. 1 1 of the article aims in [its] view at safeguarding the rights 
and obligations of Coastal States within the contiguous zone. 

To the extent that vessels navigating in the contiguous zone act in infringement of the Coastal State's 
customs and other regulations, the Coastal State is entided to exercise, in conformity with the relevant 
rules of the international law of the sea, jurisdiction to prevent and/or punish such infringement. 

Id. at 270. See also 59 Brit. Y.B. Int'l L. 1988, at 528-29 (1989). 

10. Done at Washington, London and Moscow, Feb. 11, 1971, 23 U.S.T. 701, T.I.A.S. No. 7337, 955 
U.N.T.S. 115. 

11. Brazilian Embassy Note No. 138/88; State Department File No. P 93 0052-0811. 

12. State Department File No. P 93 0052-0812. On May 18, 1989, the Embassy of the Federal Republic 
of Germany stated, in a note to the Department of State, as Depositary of the Seabeds Arms Control Treaty: 

The right of each State party under article III para. 1 of the aforementioned treaty to verify through 
observation the activities of other States parties is limited only insofar as it shall not interfere with such 
activities or activities of other State parties and as it shall be conducted with due regard to the recognized 
rights under international law. The understanding of the Government of Brazil of the term "observa- 
tion" does not represent, in the view of the Government of the Federal Republic of Germany, an 
adequate interpretation of that term. 

State Department File No. P 89 0083-0238. 

13. Article 7, Law 6267, Aug. 29, 1978, which does not appear to have been published in English. See 
also KWIATKO WSKA, THE 200 MILE EXCLUSIVE ECONOMIC ZONE IN THE NEW LAW OF THE SEA 
88-89, and sources cited in nn. 181 and 182 thereto. 

14. American Embassy San Jose note verbale dated Mar. 14, 1979, American Embassy San Jose airgram 
A-21,June 15, 1979, State Department File No. P 79-0091-0720, delivered pursuant to instructions contained 
in State Department telegram 060844, Mar. 12, 1979. 

15. Executive Branch Decree No. 20404-P-MOPT, La Gaceta, Diaro Oficial, San Jose, Costa Rica, May 
24, 1991, article 2; State Department translation LS No. 139243. 



Navigation in Exclusive Economic Zones 251 

16. American Embassy telegram 06921, Aug. 17, 1992. 

17. American Embassy San Jose note verbale No. 167, dated Aug. 18, 1992, reported in the Embassy's 
telegram 06982, Aug. 19, 1982, pursuant to instructions contained in State Department telegram 266938, 
Aug. 19, 1992. 

18. American Embassy San Jose telegram 07303, Aug. 28, 1992; State Department translation LS NO. 
139294. 

19. State Department translation LS No. 139571. 

20. American Embassy San Jose telegram 08756, Oct. 21, 1992, pursuant to instructions contained in 
State Department telegram 337417, Oct. 15, 1992. In June 1993, Costa Rica issued new regulations dropping 
the requirement for fishing vessels to obtain a transit permit in the Costa Rican EEZ; a transit permit is, 
however, still required for a fishing vessel to transit the Costa Rican territorial sea, apparendy restricting such 
vessels' right to innocent passage. American Embassy San Jose telegram 04698, Jun. 22, 1993. 

21. Letter dated Feb. 18, 1993 from the Permanent Representative of Thailand to the U.N., annexed to 
U.N. Doc. A/48/90, Feb. 22, 1993, reprinted in U.N. LOS BULL., No. 23, at 108 Qune 1993). See above, 
Chapter X, n. 5. 

22. Done at Wellington, New Zealand, Nov. 24, 1989, and Protocol I, done at Noumea, New Caledonia, 
Oct. 20, 1990, entered into force for the United States, Feb. 28, 1992, T.I.A.S. No. , 29 1.L.M. 1449 (1990). 

23. S. Exec. Report 102-20, p. 6; Cong. Rec. S 18233, Nov. 26, 1991. 

24. I.L.M. 649 (1989), entered into force May 5, 1992. The States party as of Dec. 28, 1992 are listed in 
32 I.L.M. 276 (1993). 

25. Sen. Treaty Doc. 102-5, 102d Cong., 1st Sess. (1991), at VI. 

26. Multilateral Treaties Deposited with the Secretary-General as of Dec. 31, 1992, at 832-33. 

27. Cong. Rec. SI 2292, Aug. 11, 1992. The Administration had sought such an understanding (Letter 
of Submittal, supra n. 25, at VI) and the Senate Foreign Relations Committee concurred. Sen. Exec. Rep. 
102-36, 102d Cong., 2d Sess., May 22, 1992, at 17. Deposit of the U.S. instrument of ratification, which was 
signed on Oct. 17, 1992, awaits enactment of the necessary implementing legislation. See Sen. Exec. Rep. 
102-36, at 15-16. 

28. See State Department telegram 092114, Apr. 8, 1994, para. 6. 

29. LOS Convention, article 58. 

30. The United States does not regulate MSR within its EEZ because of its desire to encourage MSR 
and to avoid any unnecessary burdens. President's Ocean Policy Statement, March 10, 1983, Appendix 1. 

31. For example, U.N. Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Marine 
Scientific Research: A Guide to the Implementation of the Relevant Provisions of the United Nations 
Convention on the Law of the Sea, (U.N. Pub. Sales No. E.91.V.3 (1991)), notes that " 'survey activities' . . . 
are primarily dealt with in other parts . . . of the Convention rather than in Part XIII. This could indicate that 
these activities do not fall under the regime of Part XIII." (page 1) 

Professor Alfred H.A. Soons, Director of the Netherlands Institute for the Law of the Sea, in his book 
MARINE SCIENTIFIC RESEARCH AND THE LAW OF THE SEA (1982), has written: "From articles 19, 21 
and 40, which use the term 'hydrographic surveying' separately from 'research', it follows that the term 'marine 
scientific research', for the purposes of the Draft Convention, does not cover hydrographic surveying 
activities." (page 125) Later in the same book, Professor Soons wrote: "With respect to hydrographic surveying 
(an activity which is not to be considered marine scientific research, although it is somewhat similar to it . . .), 
it is submitted that this activity, when it is conducted for the purpose of enhancing the safety of navigation 
. . . , must be regarded as an internationally lawful use of the sea associated with the operations of ships ... in 
accordance with article 58, and can therefore be conducted freely in the exclusive economic zone . . . ." (page 
157) 

32. See supra nn. 1-3 and accompanying text. 

33. See LOS Convention, article 56 and Oxman, The Regime of Warships Under the United Nations 
Convention on the Law of the Sea, 24 VA. J. INT'L, at 847 (1984). 



PART FOUR 
CONCLUSIONS 



The Future of U.S. Ocean Policy 255 



Chapter XV 
The Future of U.S. Ocean Policy 



Implementation of U.S. Ocean Policy 

A basic tenet of U.S. ocean policy has been, and continues to be, preservation 
of the historic principle of freedom of the seas. This policy comprehends that 
the navigational articles of the Law of the Sea Convention constitute a fair 
balance of the interests of all nations in their use of the oceans and are fully 
consistent with the traditional freedoms of navigation and overflight. The central 
consideration is how this policy can best be effectively implemented, i.e., what 
should the United States do domestically and internationally to both assert and 
preserve these vital maritime rights? 

Over the past fifteen years, U.S. oceans policy has been pursued on three 
tiers- — 

1) A vigorous freedom of navigation program; 

2) Promulgation of guidance to military forces; and, 

3) Active development and support of conventional international law ad- 
dressing ocean issues. 

Freedom of Navigation Program: The "Lever" of U.S. Ocean Policy 

The purpose of the FON program is to preserve and protect the global 
mobility of U.S. forces, and the navigation and overflight rights of all ocean 
users. Peaceful rather than provocative in intent, it impartially rejects excessive 
maritime claims of allied, friendly, neutral and unfriendly States alike. 

The preceding chapters have detailed the operation and results of the program 
in specifically targeting unrecognized historic waters; improperly drawn base- 
lines for measuring the breadth of the territorial sea; territorial sea claims greater 
than 12 miles; impermissible restrictions on innocent passage, transit passage 
through international straits and archipelagic sea lanes passage; and impermissible 
restrictions on navigation and overflight in the 24 mile contiguous zone and the 
200 mile exclusive economic zone. The latter includes the claim to establish in 
peacetime so-called "security zones" beyond the territorial sea which purport 
to restrict high seas freedoms of navigation and overflight. 

The effectiveness of the FON program as a lever to gain full coastal State 
compliance with the navigation and overflight provisions of the Convention has 
been positive. It has clearly and convincingly demonstrated to the international 
community that the United States will not acquiesce in excessive maritime 
claims. It has played a positive role in curbing non-conforming territorial sea, 
contiguous zone and exclusive economic zone claims and, arguably, has helped 



256 Excessive Maritime Claims 

persuade States to bring their domestic laws into conformity with the Conven- 
tion. 

The number of coastal States that claim territorial seas greater than 12 miles in 
breadth is now less than 20, and the 24 mile contiguous zone and 200 mile EEZ 
are virtually the international norm. On the other hand, a number of coastal States, 
among them friends and allies as well as potential adversaries, continue to seek to 
convert areas of the high seas to national jurisdiction. Typically, they do this by 
drawing baselines in inconsistent and unacceptable applications of Convention rules. 
Other attempts to unlawfully restrict navigation and overflight rights in the EEZ 
and contiguous zones, and in international straits and archipelagic sea lanes, include 
discrimination among ships and aircraft on the basis of nationality, type, propulsion, 
destination or cargo, all in direct contravention of the Convention. 

Perhaps the most dramatic demonstration of the program's positive impact 
was the aftermath of the 1988 Black Sea "bumping" incident involving U.S. and 
U.S.S.R. naval units. Subsequent bilateral discussions led to the U.S.-U.S.S.R. 
Uniform Interpretation of the Rules of International Law Governing Innocent 
Passage, signed by the two nations and issued at Jackson Hole, Wyoming, in 
September 1989. This agreement signalled to the international community that 
the two global powers view the navigation and overflight articles of the LOS 
Convention as reflective of customary international law. The "bumping" 
incident also prompted ongoing bilateral discussions on excessive baseline and 
historic water claims. 

As the number of U.S. naval ships and aircraft decrease in the immediate 
post-Cold War environment, the opportunity for FON operational assertions is 
necessarily decreased. Hopefully, the success of the U.S. program to date will 
encourage other nations to join with the United States in actively promoting 
and protecting the freedoms of navigation and overflight reflected in the 
Convention by utilizing their naval and air forces to conduct similar FON 
operational assertions. 

The question may legitimately be asked whether the requirement for the 
FON program, and operational assertions in particular, will continue when the 
LOS Convention comes into force. Certainly entry into force of the Convention 
would then provide a treaty base — for States party — for the navigational pro- 
visions. One would hope that State practice would then increasingly conform 
with the Convention. Certainly the chances for that to occur rise now that the 
deficiencies of Part XI (Deep Sea Bed Mining) of the Convention have been 
redressed so that the United States and other industrialized nations are able to 
join in a reformed treaty regime that commands universal acceptance. 

Promulgation of Policy Guidance for Maritime Forces 

The principal test of a nation's commitment to the rule of law in this arena 
is the degree to which international and domestic rules are embodied in the 



The Future of U.S. Ocean Policy 257 

guidance promulgated to its military forces for compliance. As a practical matter, 
the process of signature and ratification of international conventions has little 
significance unless the rules which those agreements propound are implemented 
in the field, in the cockpit, and on the deckplates. 

As noted in Chapter I, the President's 1983 Oceans Policy Statement 
emphasized that provisions of the Convention pertaining to navigation and 
overflight, and others except for Part XI, constitute a fair balance of the interests 
of all nations. Most importantly, the Statement directed that U.S. maritime forces 
operate worldwide in a manner fully consistent with that balance. 

International stability and the full and fair development of the rule of law in 
the ocean arena require that all maritime and coastal nations promulgate guidance 
generally reflecting these principles. The United States, as the world's leading 
maritime power, seeks widespread, universal support from the international 
community for its policy toward the oceans. Unilateral action is not enough. In 
this connection, the United States has not only issued guidance to its own forces, 
but it had also actively worked for adoption of this policy by other nations with 
like interests in the oceans. 

The U.S. Naval Warfare Publication (NWP) 9A/Fleet Marine Force Manual 
(FMFM) 1-10, entitled The Commander's Handbook on the Law of Naval Opera- 
tions, was developed to provide definitive guidance to the operating forces and, 
in a broader sense, to serve as a model for use by other nations. Published in 
1987 and revised in 1989, NWP 9A provides authoritative guidance to U.S. 
maritime forces consistent with the spirit and intent of Presidential direction. It 
states that the 1982 LOS Convention codifies existing and emerging customary 
international law pertaining to navigation and overflight and, as such, is binding 
upon all U.S. forces operating in the maritime environment. 

NWP 9A does far more than ensure compliance by U.S. military forces with 
U.S. ocean policy and the navigational articles of the LOS Convention. It also 
provides other nations an authoritative demonstration of how the United States 
interprets and applies those rules in its daily maritime activity worldwide. In this 
way, the United States has taken the lead in breathing real life into most Parts 
of the LOS Convention. NWP 9A has been distributed informally to virtually 
every nation with a navy or coast guard. It has been adopted by the Canadian 
Ministry of Defence as its interim manual, and translated into Spanish and 
Japanese. It has also been the subject at international conferences and symposia 

7 ft 

sponsored by the Department of Defense and international organizations. The 
success of this effort is reflected in the fact that NWP 9 A is being widely cited 
and emulated by other maritime nations in the preparation of their own military 
guidance. It has emerged as a key reference on contemporary ocean law and 
regulation. 

Most importantly, NWP 9 A is serving to influence, in a positive and 
constructive way, the behavior of other nations in their use of the world's 



258 Excessive Maritime Claims 

oceans — ensuring their approach to ocean policy is consistent with the balance 
of interests reflected in the LOS Convention. 

Development of Conventional International Law 

On a broader plane, in a process known as "international codification", 
customary international law, in a number of important areas, has been converted 
over time into conventional international law. This process seeks to substitute a 
degree of stability for the uncertainty and risk of claim, counterclaim and 
acquiescence which often characterizes the development of customary interna- 
tional law. Since World War II, the United States has taken an active leadership 
role in this process. Its participation in the three UN Conferences on the Law 
of the Sea are examples — particularly the Third Conference (UNCLOS III), 
the nine year effort which produced the 1982 LOS Convention. 

On a multilateral level, other examples of international codification range 
from matters relating to the safety of surface and air navigation (e.g., Convention 
on the International Regulations for Preventing Collisions at Sea and the 
Convention on International Civil Aviation ), through protection of the 
marine environment (e.g., Convention on the Prevention of Marine Pollution 
by Dumping of Wastes and Other Matter and the International Convention 
on Oil Pollution Preparedness, Response and Co-operation ), to interdiction 
of seaborne drug trafficking (e.g., article 17 of the UN Convention Against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances ). 

Bilateral agreements embrace virtually every aspect of U.S. ocean use and 
include, by way of example, the U.S.-U.S.S.R. Agreement on the Prevention 
of Dangerous Military Activities; the U.S. -Canada Agreement Concerning 
Pacific Salmon; the U.S.-New Zealand Treaty on the Delimitation of the 
Maritime Boundary Between Tokelau and the United States; and the U.S.- 
U.K. Agreement to Facilitate the Interdiction by the United States of Vessels of 
the United Kingdom Suspected of Trafficking in Drugs. 

Whether through broadly based multilateral conventions or more narrowly 
focused bilateral agreements, proactive U.S. involvement in the development 
of conventional international law has played a major role in the implementation 
of U.S. ocean policy. Specifically, it has had a positive influence on international 
recognition of the need to preserve fundamental high seas freedoms, particularly 
navigation and overflight. The active involvement of the Department of Defense 
in the formulation of negotiating positions, and indeed in the negotiations 
themselves, has ensured that vital national security interests have been addressed 
and safeguarded as appropriate. No matter how carefully undertaken, however, 
this incremental process cannot stem the erosion over time of rights and freedoms 
that underpin U.S. security interests in the oceans. The 1982 LOS Convention, 
given its all-encompassing scope, has the potential to arrest or substantially slow 
that erosion. 



The Future of U.S. Ocean Policy 259 

U.S. strategic interests in the world's oceans would clearly be best served if 
the Convention were reformed to meet U.S. deep seabed requirements while 
preserving its already satisfactory provisions on navigation and overflight and 
other traditional law of the sea matters. Becoming a party to the Convention 
under such conditions would be fully consistent with the broad range of U.S. 
interests in the oceans. Moreover, as the United States is now playing a positive 
role in the reform process, it underscores and enhances the traditional leader- 
ship position the United States has taken in ocean policy matters. As importantly, 
it strengthens the hand of the United States in dealing with the broad range of 
ocean issues — from coastal State encroachment on vital high seas freedoms of 
navigation and overflight to those involving the environment, resources and 
counter-drug operations. 

Emerging Ocean Policy Issues 

Historically, the principal threat to the preservation of high seas freedoms of 
navigation and overflight has taken the form of excessive maritime claims by 
coastal States. While that area of concern remains, and in fact drives the Freedom 
of Navigation Program, equally difficult, although more subtle issues have 
emerged which also threaten the exercise of traditional freedoms of navigation 
and overflight. These include environmental protection and resource conserva- 
tion, sovereign immunity, and maritime trafficking in narcotics. 

Environmental Protection and Resource Conservation 

Part XII of the LOS Convention is the first comprehensive approach to the 
protection and preservation of the marine environment. It sets forth respon- 
sibilities for both coastal States and maritime users to control all sources of marine 
pollution. In doing so, it requires due regard to the exercise of high seas freedoms 
such as navigation and overflight, resource development, and marine scientific 
research. Part XII requires States exercising enforcement rights over pollution 
from vessels in their EEZs to apply "generally accepted international rules and 
standards established through the competent international organization or gen- 
eral diplomatic conference." Thus, the Convention in that area serves not only 
as a mechanism to protect and preserve the ocean environment, but also as a 
means to curb any excessive coastal State enforcement regime. 

Part XII addresses pollution of the marine environment from vessels, from 
land-based sources, from or through the atmosphere, by dumping, and from 
seabed activities subject to national jurisdiction. In addition to the Convention, 
there are three global treaties, to which the United States is a party, also designed 
to protect and preserve the marine environment. In brief: 

• The Protocol of 1978 relating to the International Convention for the 
Prevention of Pollution from Ships (MARPOL 73/78) 25 regulates 



260 Excessive Maritime Claims 

discharges from the normal operations of ships. Sources include bilge 
water, oily or hazardous wastes, sewage, and garbage including plastics. 

• The Convention on the Prevention of Marine Pollution by Dumping of 
Wastes and Other Matter (the London [Dumping] Convention) regu- 
lates the disposal of wastes in the ocean from all activities except normal 
ship operations. An example would be deliberate dumping of nuclear waste 
from a barge towed to a disposal site. 

• The Convention on Oil Pollution Preparedness, Response and Co-opera- 
tion regulates international response to oil spills. 

These treaties exempt warships and other vessels entitled to sovereign immunity 
from coastal State enforcement measures and inspections, while encouraging 
State parties to ensure compliance with their provisions, and otherwise fully 
respect navigation and overflight freedoms. 

Environmental Protection 

Potential threats to navigation and other high seas freedoms are often 
encountered in the negotiation of regional treaties and strategies, and in other 
fora. 

For example, the 1983 Convention for the Protection and Development of 
the Marine Environment of the Wider Caribbean Region (commonly called 
the Cartagena Convention) in draft form included a protocol (Protocol 
Concerning Specially Protected Areas and Wildlife of the Wider Caribbean 
Region, or SPAW) which would have prohibited or restricted navigation 
through certain treaty areas. Intensive negotiations were required on the part of 
the United States to eliminate those unacceptable, restrictive measures. As 
concluded, the treaty is a regional agreement to regulate pollution from vessels, 
dumping, land-based sources, sea-bed activities and airborne sources. The 
SPAW Protocol aims to protect endangered flora and fauna of the Caribbean 
marine environment by allowing the parties to establish "specially protected 
areas" offshore, including in the EEZ. A second protocol provides for 
Cooperation in Combatting Oil Spills in the Wider Caribbean Region. 

Throughout the negotiations leading to the conclusion of the 1986 Conven- 
tion for the Protection of the Natural Resources and Environment of the South 

Pacific Region (SPREP), and the Protocol for the Prevention of Pollution of 

-l-i 

the South Pacific Region by Dumping, vigilance was maintained to ensure 
that traditional navigation rights were not impaired. For example, while the 
Parties agreed to establish "specially protected areas," the Convention specifically 
provided that "the establishment of such areas shall not affect the rights of other 
Parties or third States under international law."' SPFJBP is a regional seas 
convention covering a large portion of the South Pacific. The agreement 
regulates pollution from vessels, dumping, land-based sources, sea-bed activities, 
airborne sources, and the storage of toxic and hazardous wastes. SPREP was the 



The Future of U.S. Ocean Policy 261 

first agreement the United States signed that bans the disposal at sea of radioactive 
waste. The United States considered that SPREP promotes harmony in the 
South Pacific region, an area with unique geographic circumstances, which 
preliminary scientific evidence indicated, at the time of signing, was not 
particularly well suited for dumping low level radioactive waste. The Parties also 
agree to conduct environmental studies and cooperate during environmental 
emergencies. 

On June 14, 1991, the eight circumpolar nations — Canada, Denmark, 
Finland, Iceland, Norway, Sweden, the United States, and the U.S.S.R. — signed 
a nonbinding Strategy to protect the Arctic Environment. Signatories will 
cooperate in monitoring pollution caused by radioactivity, noise, oil, heavy 
metals, acidification and persistent organic contaminants. They will also co- 
operate in formulating response plans for emergencies such as oil spills. Although 
restrictions on navigation and overflight were not addressed, they nonetheless 
are potential measures States may possibly seek to use to implement the Strategy. 
To ensure against that possibility, the Strategy includes a provision specifying 
that implementation must be consistent with the LOS Convention. 

On November 16, 1992, Canada deposited its instrument of accession to the 
Protocol of 1978 relating to the International Convention for the Prevention of 
Pollution from Ships, 1973 (MARPOL 73/78). At the time of its accession, 
Canada deposited a declaration concerning arctic waters, as follows: 

Canada made the following declarations based on Article 234 of the 1982 
United Nations Convention on the Law of the Sea, signed by Canada on 
December 10, 1982: 

(a) The Government of Canada considers that it has the right in accordance with 
international law to adopt and enforce special non-discriminatory laws and 
regulations for the prevention, reduction and control of marine pollution from 
vessels in ice-covered waters where particularly severe climatic conditions and the 
presence of ice covering such waters for most of the year create obstructions or 
exceptional hazards to navigation, and pollution of the marine environment could 
cause major harm to or irreversible disturbance of the ecological balance. 

(b) Consequently, Canada considers that its accession in the Protocol of 1978, as 
amended, Relating to the International Convention for the Prevention of Pollu- 
tion from Ships, 1973 (MARPOL 73/78) is without prejudice to such Canadian 
laws and regulations as are now or may in the future be established in respect of 
arctic waters within or adjacent to Canada. 37 

Because Canada's declarations did not follow completely the wording of Article 

38 

234, on November 18, 1993, the United States filed with the Secretary- 
General of IMO, as the Depositary of MARPOL, its understanding of the 
permissible scope of Canada's declarations: 



262 Excessive Maritime Claims 

The Government of the United States of America considers that Canada may 
enact and enforce only those laws and regulations in respect of foreign shipping 
in arctic waters that are within 200 nautical miles from the baselines used to 
measure the breadth of the territorial sea as determined in accordance with 
international law: 

— that have due regard to navigation and the protection and preservation of the 
marine environment based on the best available scientific evidence in arctic waters, 
and 

— that are otherwise consistent with international law, including articles 234 and 
236 and other relevant provisions of the 1982 United Nations Convention on the 
Law of the Sea. 

The Basel Convention on the Control of Transboundary Movement of 
Hazardous Wastes and Their Disposal regulates such activity through a consent 
and notice regime. It required additional negotiations to safeguard navigational 
freedoms, through the inclusion of a provision that the Convention does not 
affect "the exercise by ships and aircraft of all States of navigational rights and 
freedoms as provided for in international law and as reflected in relevant 
international instruments." 41 

This issue has surfaced in other regional negotiations in which the United 
States was not involved. An example is the Bamako Convention on the Ban of 
the Import into Africa and the Control of Transboundary Movement and 
Management of Hazardous Wastes within Africa, a regional treaty concluded 
by member States of the Organization of African Unity. The treaty requires 
parties to control all carriers of hazardous wastes in the Convention area in a 
manner that respects navigation and overflight rights. The Convention recog- 
nizes "the exercise by ships and aircraft of all States of navigation rights and 
freedoms as provided for in international law and as reflected in relevant 
international instruments." 

Holding the line against the erosion of vital high seas freedoms of navigation 
and overflight requires oversight over U.S. domestic as well as international 
considerations. The United States is not only the dominant global maritime 
power, it also has one of the world's longest coastlines. As such, it has maritime 
interests which may, on occasion, be at odds with the full expression of 
navigational freedoms. Environmental protection in off-shore waters, conserva- 
tion of fisheries beyond the EEZ (e.g., salmon and tuna), and enforcement of 
customs and immigration regulations seaward of the territorial sea and con- 
tiguous zone are examples. 

Conservation of Living Marine Resources 

Controls in this area are imposed to preserve and protect fish and marine 
mammal stocks not only in the high seas but also in the exclusive economic 



The Future of U.S. Ocean Policy 263 

zones, contiguous zones, and territorial seas of individual States. Agreements are 
bilateral as well as multilateral and are often negotiated under the auspices of a 
specialized international body. The International Whaling Commission is an 
example. They generally deal with a specific species and typically specify the 
area, season, catch limit, and harvesting methods. An example is the Con- 
vention for the Prohibition of Fishing with Long Driftnets in the South 
Pacific (with Protocols) (commonly called the Wellington Convention). 
U.S. ratification includes an understanding that application of treaty "meas- 
ures will only be applied when consistent with traditional high seas freedoms 
of navigation and overflight as reflected in" the LOS Convention. 

On June 14, 1992, the United Nations Conference on Environment and 
Development (UNCED) adopted Agenda 21. Chapter 17 of that document 
sets forth several hundred action items for the protection of the oceans, of all 
kinds of seas, including enclosed and semi-enclosed seas, and of coastal areas, 
and the protection, rational use and development of their living resources, 
over the next twenty years. The introduction to Chapter 17 begins by stating 
that international law as reflected in the LOS Convention "sets forth rights 
and obligations of States and provides the international basis upon which to 
pursue the protection and sustainable development of the marine and coastal 
environment, and its resources." The challenge will be to maintain that 
international basis in all the following actions called for in Agenda 21. 

Sovereign Immunity of Warships and Military Aircraft 

"Sovereign immunity of warships and military aircraft" traditionally refers to 
immunity from the exercise of enforcement jurisdiction, i.e., their immunity 
from arrest, attachment, or execution in the territory of any foreign State. It 
also refers to the immunity of public vessels on the high seas from jurisdiction 
to prescribe by any State other than the flag State. In the territorial sea, public 
vessels are only immune from the jurisdiction of the port or coastal State to 
enforce its laws against them. It may also be used in those situations where the 
terms of a particular treaty are not going to be applied to public vessels; in those 
situations public vessels are typically exempted from the treaty's application by 
the words "not apply" or "not be applicable". Or, if public vessels are to be 
covered by the treaty, it will typically expressly say that it does "apply" to them. 
A large number of environmental protection treaties exempt public vessels and 
aircraft but require the flag State to "ensure by the adoption of appropriate 
measures not impairing the operations or operational capabilities of such ships 
and aircraft owned or operated by it, that such ships and aircraft act in a manner 
consistent, so far as is reasonable and practicable, with" the treaty. 

The undefined term "sovereign immunity" is used in only a few maritime 
treaties: the 1972 Oslo Convention (article 15(6)), 1992 Dumping annex to 
OSPAR (annex II, article 10(3)), the 1972 London [Dumping] Convention 



264 Excessive Maritime Claims 

(article VII(4)), 56 and article 4(1) of the 1989 Salvage Convention. 57 The term 
also appears in the titles of article 236 of the LOS Convention, article XIV of 
the 1982 Jeddah regional convention, 58 article 12(4) of the 1986 SPREP 
Dumping Protocol, article 11 of Annex IV to the 1991 Antarctic Environ- 
mental Protection Protocol, and article IV of the 1992 Black Sea Pollution 
Convention. The term is used in the US/UK interpretative statement attached 
to the Final Act of the Cartagena Convention, and in the US understandings 
to SPREP and Basel Conventions. 

Reference is made to the "immunity" of public vessels in the title of the 1926 
Brussels Convention, and in article I of the 1934 Protocol thereto. "Im- 
munity" is also used in articles 8 and 9 of the 1958 High Seas Convention, 
articles 32, 95 and 96 of the LOS Convention, article 22(2) of the 1958 
Territorial Sea Convention, article X(3) of the 1962 Brussels Nuclear Ships 
Operators Convention, and article 2(2) of the 1988 Maritime Terrorism 
Convention. 

Because of the very different ways in which "sovereign immunity" for public 
vessels/aircraft has been used in treaties and agreements, it is preferable that those 
documents specify the actions from which such vessels/aircraft are immune, 
rather than rely on the term. The following are factors to consider in drafting 
"sovereign immunity" clauses: 

— are public vessels/aircraft to be covered by the terms of the treaty? 

— is the conduct to be regulated by the treaty to include the conduct of public 
vessels/aircraft? 

— are States other than the flag State to be empowered to prescribe as to the 
conduct of foreign flag public vessels/aircraft? 

— are flag States to be required, or merely encouraged, to prescribe/enforce 
against its public vessels and aircraft? 

— what enforcement authority will States other than flag States be granted 
against foreign flag public vessels and aircraft? 

— what enforcement authority 'will other States have directly against the flag 
State for acts of its public vessels/aircraft contrary to the terms of the treaty? 

— what private causes of action in the "enforcement" State will be permitted 
against the foreign State for the conduct of its public vessels/aircraft? 

Summary. International agreements (and U.S. domestic legislation) on the 
protection of the ocean environment and marine resources have the potential, 
in their application and enforcement, to infringe on the exercise of traditional 
high seas freedoms of navigation and overflight. The United States has been, and 
must continue to be, alert to this fact and continue to successfully assert the 
primacy of customary international law relating to these rights, thus deterring 
the unravelling of hard-won provisions in the Convention essential to national 
security. 



The Future of U.S. Ocean Policy 265 

Maritime Counter-drug Operations 

The U.S. counter-drug campaign has the highest national priority. It actively 
involves all the uniformed services — the Army, Navy, Air Force, Marine Corps 
and Coast Guard — in stemming the flow of illegal drugs and substances into the 
United States from overseas points. 

This typically involves military operations in the international waters and 
airspace adjacent to coastal States from which drug trafficking is known to 
originate. The objective is to deter the transport of illegal drugs and substances 
into the United States and, if deterrence fails, to detect and intercept carriers (air 
and seaborne) en route to their destination, if possible, well before they arrive 
in the continental United States. 

These surveillance and interdiction operations rely on the free and unimpeded 
exercise of the traditional high seas freedoms of navigation and overflight. They 
involve close and continuing coordination and cooperation between the United 
States and the coastal State. Problems have arisen where the imperatives of 
counter-drug operational security conflict with requests from individual coastal 
States to be informed in advance of operations on and over the high seas off their 
coasts. Such notification is inconsistent with U.S. ocean policy. These difficulties 
have been addressed bilaterally on a case by case basis. In each instance, the 
United States has taken into consideration the sensitivities involved without 
compromising essential freedoms of navigation and overflight. 

Problems have also arisen when counter-drug operations have been con- 
ducted in waters which are the subject of excessive baseline, territorial sea or 
EEZ claims, wherein the coastal State purports to assert a right to control or 
authorize such operations. Other problems have surfaced in which coastal States 
have protested the consensual boarding and searching by the United States of 
their flag vessels. In this latter regard, a small number of States have objected, 
claiming that their ships' masters do not have the authority to grant such 
permission, and that the decision must be referred to the government of the 
maritime State involved. The United States does not support such restrictions 
on the ship master's traditional authority to consent to non-intimidating board- 
ings/inspections, and the matter is not settled. The United States has opened 
bilateral talks with a number of affected States with the object of reaching a 
mutually satisfactory understanding on these issues. 

U.S. Oceans Policy for the 21st Century 

U.S. defense policy for the late 1990's and beyond is critically dependent upon 
traditional freedoms of navigation and overflight of the world's oceans, including 
unimpeded transit of international straits and archipelagic sea lanes. Each of 
the four major elements of the national security policy — strategic deterrence, 
forward presence, crisis response and force reconstitution — is premised in 
significant part on the preservation of those freedoms. A stable law of the sea 



266 Excessive Maritime Claims 

regime embodying traditional freedoms of navigation and overflight is thus vital 
to U.S. security interests. The right of the United States to navigate and overfly 
the world's oceans in furtherance of its national security must remain securely 
rooted in accepted principles of international law. To be effective, U.S. military 
operations and deployments must be consistent with the rule of law. 

The non-deep seabed mining provisions of the 1982 LOS Convention 
continue to constitute a fair balance of the interests of all nations in their use of 
the oceans and are fully consistent with the traditional freedoms of navigation 
and overflight. U.S. security interests in the oceans have been adequately 
protected to date by current U.S. ocean policy and implementing strategy. U.S. 
reliance on arguments that customary international law, as articulated in the 
non-deep seabed mining provisions of the 1982 LOS Convention, and as 
bolstered by diplomatic representations and the assertions of right where neces- 
sary under the Freedom of Navigation Program, have served adequately so far 
to preserve fundamental freedoms of navigation and overflight with acceptable 
risk, cost and effort. 

Promulgation of policy guidance to U.S. forces operating in the maritime 
environment, ensuring their compliance with the navigation and overflight 
provisions of the LOS Convention, has effectively implemented the non-seabed 
provisions of the Convention for the United States. Dissemination of that 
guidance to other nations has gone far to foster U.S. views concerning the proper 
interpretation of the Convention. This is reflected in the fact that U.S. guidance 
in this area is being widely adopted by other maritime nations. 

However, excessive maritime claims to sovereignty or jurisdiction by coastal 
States continue to threaten U.S. security and economic interests. Additionally, 
emerging maritime issues, including overly restrictive efforts to protect the 
marine environment and conserve ocean resources, present equally serious 
challenges. All seek to restrict traditional ocean freedoms, particularly navigation 
and overflight rights, or exact an unacceptable price for the exercise of those 
rights. This trend may expand and intensify in the period ahead. 

The risk, cost and effort to counter these challenges will increase as U.S. 
military force structure, including continental United States and overseas basing, 
is reduced over the next decade. Nonetheless, acquiescence and accommodation 
to the erosion of high seas freedoms of navigation and overflight remain 
unacceptable policy options. Unilateral U.S. demonstrations of resolve — espe- 
cially operational assertions — are sometimes viewed as antagonistic. They risk 
the possibility of military confrontation and of political costs that may be deemed 
unacceptable, with prejudice to other U.S. interests, including worldwide 
leadership in ocean affairs and support for use of cooperative, international 
solutions to mutual problems. 

The long-term stability of the oceans, which U.S. security interests require, 
can best be met by a comprehensive and widely accepted Law of the Sea 



The Future of U.S. Ocean Policy 267 

Convention. Codification of existing and emerging rules of customary interna- 
tional law into a single, comprehensive convention of universal application is 
clearly preferable to primary reliance on the uncertainties associated with 
unilateral assertions of rights premised upon the process of claim and 
counterclaim of customary international law. This process should press coastal 
State practice into increasing conformity with agreed international norms. While 
not eliminated outright, the need to assert U.S. navigation and overflight rights 
in the face of excessive claims should be reduced substantially, and with it the 
risk and cost of unwanted turmoil and confrontation on and over the high seas. 

Some of the deep seabed mining provisions of the LOS Convention, as 
originally constituted, were incompatible with the interests of the United States 
and other western industrialized powers. Beginning in 1990, there developed a 
growing recognition within the international community, among developed and 
developing nations alike, that the deep seabed mining provisions of the Con- 
vention required reform. 

On balance, weighing costs and benefits, the United States had much to gain 
in exercising a leadership role in the United Nations effort to reform the deep 
seabed mining regime, removing the principal obstacle to broad international 
acceptance of the 1982 Law of the Sea Convention. For a positive outcome, 
U.S. leadership will continue to be required in defining and promoting a regime 
that protects overall U.S. interests and is acceptable to all parties to the 
Convention. 

In the meantime, U.S. military and economic activities on, over and under 
the sea are guided by the President's 1983 Ocean Policy Statement and the U.S. 
Freedom of Navigation Program. In particular, U.S. naval and air forces continue 
to operate on, over and under the world's oceans in a manner fully consistent 
with the navigational articles of the LOS Convention. In addition, the United 
States continues vigorously to protest excessive maritime claims and exercise 
routinely and on a global scale, U.S. navigational, overflight and other defense- 
related rights and duties in accordance with the Convention. That program 
should be expanded to involve other maritime powers with like interests in the 
oceans in cooperative and individual effort. 

The Department of Defense will continue to update and disseminate its ocean 
policy guidance not only to U.S. maritime forces, but also to nations with like 
interests in the oceans. Emulation of that guidance by other nations in the 
development and promulgation of their own ocean policy furthers international 
implementation of the navigational articles of the LOS Convention. To this end, 
the Departments of Defense and State will continue to sponsor bilateral LOS 
discussions, as well as symposia and conferences of military and civilian law of 
the sea experts to foster international understanding of, and support for, U.S. 
ocean policy. 



268 Excessive Maritime Claims 

To do otherwise is to permit the ocean enclosure movement to continue 
unabated and risk loss of the freedoms of navigation and overflight essential to 
worldwide economic security and peace. 

Notes 

1 . For the full text see Appendix 4. 

2. Agreement relating to the Implementation of Part XI of the UN Convention on the Law of the Sea, 
UNGA Doc. A/48/950, June 9, 1994 at 11-31; Anderson, Efforts to Ensure Universal Participation in the United 
Nations Convention on the Law of the Sea, 42 Int'l & Comp. L.Q. 654 (1993). 

3. For the full text see Appendix 1 . 

4. U.S. Department of the Navy, Annotated Supplement to the Commander's Handbook on the Law of Naval 
Operations, NWP 9 (Rev. A)/FMFM 1-1 (1989) hereinafter NWP 9 (Rev. A) ANN. SUPP.], Introduction at 
33-34, &para. 1.1. 

5. Canadian Department of National Defence, Handbook on the Law of Naval Operations, MAOP-331 
(Ottawa, 1991). 

6. By the Argentine Naval War College and the Japanese Maritime Self Defense Force Staff College. 

7. Symposium on the Law of Naval Warfare: Targeting Enemy Merchant Shipping, Naval War College, 
January 1990. See Grunawalt (ed.), THE LAW OF NAVAL WARFARE: TARGETING ENEMY MERCHANT 
SHIPPING, 65 U.S. Naval War College International Law Studies (1993). 

8. E.g., International Institute of Humanitarian Law, San Remo, Italy, Round-Table of Experts on 
International Humanitarian Law Applicable to Armed Conflicts at Sea, 1987-1994. See 7 SCHRIFTEN, THE 
MILITARY OBJECTIVE AND THE PRINCIPLE OF DISTINCTION IN THE LAW OF NAVAL WARFARE 
(Bochum 1989, W.H. v. Heinegg ed., 1991), and 8 SCHRIFTEN, METHODS AND MEANS OF COMBAT 
IN NAVAL WARFARE (Toulon 1990, W.H. v. Heinegg, ed. 1992). 

9. E.g., Federal Ministry of Defence of the Federal Republic of Germany, Humanitarian Law in Armed 
Conflicts - Manual ZDv 15/2 (1992). 

10. See Robertson (ed.), THE LAW OF NAVAL OPERATIONS, 64 U.S. Naval War College International 
Law Studies (1991). 

11. On the 1958 Conference, see FRANKLIN, THE LAW OF THE SEA: SOME RECENT DEVELOP- 
MENTS, 53 U.S. Naval War College International Law Studies 1959-1960 (1961). For a discussion of the 
1960 Conference, see Dean, The Second Geneva Conference on the Law of the Sea: The Fight For Freedom of the 
Seas, 54 Am. J. Int'l L. 751-89 (1963). 

12. See l United Nations convention on the Law of the sea 1982: A commentary 

(Nordquist ed. 1985). 

13. Done at London Oct. 20, 1972, entered into force July 15, 1977, 28 U.S.T. 3459, T.I.A.S. No. 8587. 

14. Done at Chicago Dec. 7, 1944, entered into force Apr. 4, 1947, 61 Stat. 1180, T.I.A.S. No. 1591, 3 
Bevans 944, 15 U.N.T.S. 295. 

15. With annexes, done at Washington, London, Mexico City and Moscow Dec. 29, 1972, entered into 
force Aug. 30, 1975, 26 U.S.T. 2403, T.I.A.S. No. 8165, 1046 U.N.T.S. 120, 11 I.L.M. 1291 (1972). 

16. Done at London Nov. 30, 1990, U.S. instrument of ratification deposited Mar. 9, 1992, not in force, 
30 I.L.M. 735 (1991). 

17. Done at Vienna Dec. 20, 1988, entered into force Nov. 11, 1990, T.I.A.S. No. , 28 I.L.M. 493 

(1989). 

18. With annexes and agreed statements, Moscow, June 12, 1989, entered into force Jan. 1, 1990, T.I.A.S. 
No. , 28 I.L.M. 877 (1989). 

19. Done at Ottawa Jan. 18, 1985, entered into force Mar. 18, 1985, T.I.A.S. No. 11091. 

20. Signed at Atafu Dec. 2, 1980, entered into force Sept. 3, 1983, T.I.A.S. No. 10775. 

21. Exchange of notes at London Nov. 13, 1981, entered into force Nov. 13, 1981, 33 U.S.T. 4224, 
T.I.A.S. No. 10296, 1285 U.N.T.S. 197, 21 I.L.M. 439 (1982). 

22. 10 Ocean Policy News, at 2-3 April 1993. Id., Dec. 1993, at 1-4; UNGA Doc. A/48/PV.72, at 8 
(Statement of U.S. representative); ASIL Newsletter, Jan. -Feb. 1994, at 14-16. See also U.N. Law of the Sea: 
Report of the Secretary-General, UN Doc. A/48/527, Nov. 10, 1993, at 7-8, and UNGA Resolution 
A/R£S/48/28,Jan. 11, 1994, paras. 4-6. 

23. Cf. LOS Convention, articles 58, 87 & 194(4). 

24. LOS Convention, article 21 1(5). 

25. With annexes and protocols, done at London Feb. 17, 1978, entered into force Oct. 2, 1983, T.I.A.S. 
No. 



The Future of U.S. Ocean Policy 269 

26. Supra n. 15. 

27. Supra n. 16. 

28. London Convention, article VII(4); MARPOL 73, article 3; OPPRC, article 1(3). See further text on 
sovereign immunity accompanying n. 48 and following. 

29. With annex, done at Cartagena Mar. 24, 1983, entered into force Oct. 11, 1986, T.I.A.S. No. 11085, 
22 I.L.M. 227 (1983). 

30. S. Treaty Doc. 103-5; BNA, Int'l Env. Rep. 21:3261. 

31. Entered into force Oct. 1986, 22 I.L.M. 240; T.I.A.S. No. 11085. 

32. 26 I.L.M. 38(1987); U.N. LOS BULL., No. 10 (Nov. 1987), at 59; BNA, Int'l Env. Rep. 21:3171; 
S. Treaty Doc. 101-21. 

33. 26 I.L.M. 65; UN. LOS BULL., No. 10 (Nov. 1987), at 78, BNA, Int'l Env. Rep. 21:3191; S. Treaty 
Doc. 101-21. 

34. SPREP Convention, article 14. 

35. 30 I.L.M. 1624 (1991). 

36. Id., Introduction, at 1630. 

37. IMO Doc. PMP/Circ. 105 dated Dec. 7, 1992. 

38. Article 234 of the LOS Convention provides: 

Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the 
prevention, reduction and control of marine pollution from vessels in ice-covered areas within the 
limits of the exclusive economic zone, where particularly severe climatic conditions and the presence 
of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, 
and pollution of the marine environment could cause major harm to or irreversible disturbance of the 
ecological balance. Such laws and regulations shall have due regard to navigation and the protection 
and preservation of the marine environment based on the best available scientific evidence. 

See generally, Joyner, Ice-Covered Regions in International Law, 31 Natural Resources J. 213 (1991). See also 
Chapter XI, n. 79 supra. 

39. State Department telegram 349386, Nov. 18, 1993; American Embassy London telegram 20793, Nov. 
18, 1993. 

40. 28 I.L.M. 649 (1989); U.N. LOS BULL., No. 17, Dec. 1989, at 37; entered into force May 5, 1992. 

41. See supra Chapter X, text accompanying nn. 104-07. 

42. 30 I.L.M. 773 (1991). 

43. Bamako Convention, article 5(4)(c), 30 id. at 784. 

44. International Convention for the Regulation of Whaling with schedule of whaling regulations, signed 
at Washington Dec. 2, 1946, 62 Stat. 1716, T.I.A.S. No. 1849, 4 Bevans 248, 161 U.N.T.S. 72, and Protocol 
done at Washington Nov. 19, 1956, 10 U.S.T. 952, T.I.A.S. No. 4228, 338 U.N.T.S. 366. 

45. Done at Wellington, Nov. 24, 1989, and Noumea, New Caledonia, Oct. 20, 1990, 29 I.L.M., 1449 
(1990), U.N. LOS BULL., No. 14 (Dec. 1989), at 31. 

46. S. Exec. Rep. 102-20. 

47. UN. Doc. A/CONF.151/4 (Part II), para. 17.1, at 1 (1992). 

48. AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD), FOREIGN RELATIONS LAW OF THE 
UNITED STATES, § 457, Reporter's Note 7 (1987). 

49. 1958 High Seas Convention, articles 8-9; LOS Convention, articles 95-96. 

50. 1958 Territorial Sea Convention, articles 22—23; LOS Convention, articles 30. 

51. 1923 Statute attached to the Geneva Convention on the International Regime of Maritime Ports, 58 
L.N.T.S. 286, article 13; 1926 Brussels Convention for the Unification of Certain Rules relating to the 
Immunity of State-owned vessels, 176 L.N.T.S. 201, 3 Hudson 1837, article 3(1); 1934 Protocol to the Brussels 
Convention, 176 L.N.T.S. 215, article I; 1972 European Convention on State Immunity, U.K.T.S. 74, II 
I.L.M. 470 (1972), article 30; 1954 Oil Pollution Convention, 12 U.S.T. 2989, T.I.A.S. No. 4900, U.K.T.S. 
No. 54 (1958), 327 U.N.T.S. 3, 9 I.L.M., 1 (1970), article II(l)(d); 1973 Protocol on Intervention on the 
High Seas In Cases of Marine Pollution by Substances Other Than Oil, T.I.A.S. No. 10561, U.K.T.S. No. 
27 (1983), 13 I.L.M. 605 (1974), article 11(1) (cross ref. to Article 1(2); 1969 Civil Liability Convention for 
Oil Pollution Damage, 973 U.N.T.S. 3, U.K.T.S. No. 106 (1975), 9 I.L.M. 45 (1970), 64 Am. J. Int'l L. 481, 
article XI(1); 1910 Brussels Convention for the Purpose of Establishing Uniformity in Certain Rules regarding 
Collisions, 4 Am. J. Int'l L. Supp. 121 (1910), article 11; 1910 Brussels Convention on Assistance and Salvage 
at Sea, T.S. 576, article 14; 1926 Brussels Convention on Maritime Mortgages and Liens, 120 L.N.T.S. 187, 
3 Hudson 1845, 27 Am. J. Int'l L. 268 (1962), article 15; 1965 Convention on Facilitation of International 
Maritime Traffic, 18 U.S.T. 410, T.I.A.S. No. 6251, 591 U.N.T.S. 265, article 11(3); 1966 Convention on 
Load Lines, 18 U.S.T. 1857, T.I.A.S. No. 6331, 640 U.N.T.S. 133, article 5(l)(a); 1969 Convention onthe 
Tonnage Measurements of Ships, T.I.A.S. No. 10490, article 4(l)(a); 1989 Convention on Salvage, article 4 



270 Excessive Maritime Claims 

(Party may decide otherwise); 1988 Convention for the Suppression of Unlawful Acts against the Safety of 
Maritime Navigation, 27 I.L.M. 672 (1988), U.N. LOS BULL., No. 11 Quly 1988), at 14, article 2(1). 

State aircraft are exempted from the provisions of the following treaties: 1944 I.C.A.O. Convention, 61 Stat. 
1180, T.I.A.S. No. 1591, 3 Bevans 944, 15 U.N.T.S. 295, article 3; 1948 Geneva Convention on the 
International Recognition of Rights in Aircraft, 4 U.S.T. 1830, T.I.A.S. No. 2847, 310 U.N.T.S. 151, article 
13; 1953 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 310 
U.N.T.S. 181, 52 Am. J. Int'l L. 593, article 26; 1963 Tokyo Convention on Offenses and Certain Other 
Acts Committed on Board Aircraft, 20 U.S.T. 2941, T.I.A.S. No. 219, 12 I.L.M. 1042, article 1(4); 1970 
Hague Convention on the Suppression of Unlawful Seizure of Aircraft (Hijacking), 22 U.S.T. 1641, T.I.A.S. 
No. 7192, 860 U.N.T.S. 105, article 3(2); 1971 Montreal Convention for the Suppression of Unlawful Acts 
Against the Safety of Civil Aviation (Sabotage), 24 U.S.T. 564, T.I.A.S. No. 7570, 974 U.N.T.S. 117, article 
4(1). 

Article 13(2) of the 1993 Convention on Maritime Liens and Mortgages, U.N. Doc. A/CONF.162/L5; article 
X(3) of the 1962 Brussels Convention on the Liability of Operators of Nuclear Ships, 57 Am. J. Int'l L. 268 
(1962, article 1(2) of the 1969 Intervention Convention for Oil Pollution, 26 U.S.T. 765, T.I.A.S. No. 8068, 
U.K.T.S. No. 77 (1975), 970 U.N.T.S. 212, 9 I.L.M. 25 (1970); and article 3(l)(a) of the 1933 Rome 
Convention for the Unification of Certain Rules relating to the Precautionary Attachment of Aircraft, 192 
L.N.T.S. 289, 6 Hudson 327, all specifically exempt public vessels or State aircraft from enforcement 
jurisdiction. 

52. The 1972 International Regulations for Preventing Collisions at Sea (COLREGS 1972), 28 U.S.T. 
3459, T.I.A.S. No. 8587, Rule 1(a); 1974 Convention for the Safety of Life at Sea (SOLAS 1974), 32 U.S.T. 
47, T.I.A.S. No. 9700, 14 I.L.M. 959 (1975), article II; 1979 US-Canada Exchange of Notes: Vessel Traffic 
Management System for the Juan de Fuca Region, T.I.A.S. No. 9706, 32 U.S.T. 377, Annex para. 208 (except 
when compliance would impair defense operations or defense operational capabilities). 

A few treaties are silent on the scope of application to ships: 1981 Lima Convention for the Protection of the 
Marine Environment and Coastal Area of the South -East Pacific, and the 1985 Nairobi Convention for the 
Protection, Management and Development of the Marine and Coastal Environment of the Eastern African 
Region. The United Kingdom reserved the right not to apply the provisions of the 1952 International 
Convention relating to the Arrest of Sea-going Ships, 439 U.N.T.S. 193, 53 Am. J. Int'l L. 539 (1959) to 
"warships or to vessels owned by or in the service of a State." 

53. 1926 Washington Draft Convention on Oil Pollution of Navigable Waters, I FOREIGN RELATIONS 
OF THE UNITED STATES 1926, at 238, XIX INTERNATIONAL PROTECTION OF THE ENVIRONMENT 
9587 (Ruster, Simma & Bock, eds., 1979), articles III and IV; 1972 Convention on the Prevention of Marine 
Pollution by Dumping ofWastes and other matter (London [Dumping] Convention), 26 U.S.T. 2403, T.I.A.S. 
No. 8165, 1046 U.N.T.S. 120 U.K.T.S. No. 43 (1976), 1 1 I.L.M. 1302 (1972), article VII; 1973 Convention 
for the Prevention of Pollution by Ships (MARPOL 73), 1340 U.N.T.S. 22484, 12 I.L.M. 1319 (1973), Int'l 

Env. Rep. 21:2301 (MARPOL Protocol of 1978, T.I.A.S., No. ), article 3(4); 1978 Convention on 

Standards of Training, Certification and Watchkeeping for Seafarers, with Annex (STCW), S. Exec. EE, 96th 

Cong., 1st Sess., S. Exec. Rep. 102-4, T.I.A.S. No. , article 111(a); 1976 Protocol for the Prevention of 

Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft (Barcelona), 1102 U.N.T.S. (Reg. 
No. 16008); U.N. Doc. ST/LEG.SER.B/19, p. 459; 15 I.L.M. 300 (1976); Int'l Env. Rep. 35:0301, article 
11(2); 1978 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment 
from Pollution (ROPME), 1140 U.N.T.S. 133, 17 I.L.M. 511 (1978), Int'l Env. Rep. 21:2721, article XIV; 
1982 U.N. Convention on the Law of the Sea, 21 I.L.M. 1261 (1982), Int'l Env. Rep. 21:3301, article 236; 
1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, JEDDAH, 
NEW DIRECTIONS IN THE LAW OF THE SEA (New Series), v.2, Doc. J.19, article XIV; 1986 Protocol for 
the Prevention of Pollution of the South Pacific Region by Dumping, S. Treaty Doc. 101-21, S. Exec. Rep. 
102-8, 26 I.L.M. 65 (1987); U.N. LOS BULL., Nov. 1987, at 78; Int'l Env. Rep. 21:3191, article 12(4); 1990 
Protocol concerning Specially Protected Areas and Wildlife to the 1983 Convention for the Protection and 
Development of the Marine Environment of the Wider Caribbean Region (SPAW Protocol), S. Treaty Doc. 
103-5, Int'l Env. Rep. 21:3261, article 2(3); 1990 Convention on Oil Pollution Preparedness, Response and 
Co-operation (OPPRC), S. Treaty Doc. 102-11, S. Exec. Rep. 102-16, 30 I.L.M. 733 (1991), Int'l Env. 
Rep. 21:1801, article 1(3); 1991 Protocol on Environmental Protection to the Antarctic Treaty, S. Treaty 
Doc. 102-22, S. Exec. Rep. 102-54, 30 I.L.M. 1483 (1991), Int'l Env. Rep. 21:3801, article 11(1); 1992 
Convention on the Protection of the Black Sea against Pollution, 32 I.L.M. 1110 (1993), U.N. LOS Bull., 
No. 22, Jan. 1993, at 31, article IV; 1974 Convention on the Protection of the Marine Environment of the 
Baltic Sea Area (Helsinki Convention), 13 I.L.M. 555 (1974), article 4(4); 1992 Convention on the Protection 



The Future of U.S. Ocean Policy 271 

of the Marine Environment of the Baltic Sea Area (Helsinki Convention), U.N. LOS BULL., No. 22, at 54 
(Jan. 1993); Int'l Env. Rep. 35:0401, article 4(3). 

Similar understandings have been made by the United Kingdom and the United States to the Cartagena 
Convention, and by the United States to SPREP and Basel Conventions. The United States believes this has 
become the norm for all marine environmental protection conventions and thus has proposed the following 
understanding to the Biodiversity Convention: 

The Government of the United States of America understands that although the provisions of this 
Convention do not apply to any warship, naval auxiliary, or other vessels or aircraft owned or operated 
by a State and used, for the time being, only on government non-commercial service, each State shall 
ensure, by the adoption of appropriate measures not impairing operations or operational capabilities 
of such vessels or aircraft owned or operated by it, that such vessels or aircraft act in a manner consistent, 
so far as is reasonable and practicable, with this Convention. 

Sen. Treaty Doc. 103-20, p. XVII. See Chandler, The Biodiversity Convention: Selected Issues of Interest to the 
International Lawyer, 4 Col. Int'l Envd. L. & Pol'y 141, 153 (1993). 

In depositing its instrument of ratification of the 1982 LOS Convention, Malta declared its view that: 

the sovereign immunity contemplated in article 236 does not exonerate a State from such obligation, 
moral or otherwise, in accepting responsibility and liability for compensation and relief in respect of 
damage caused by pollution of the marine environment by any warship, naval auxiliary, other vessels 
or aircraft owned or operated by the State and used on government non-commercial service. 

U.N. LOS BULL., No. 23, at 7 (June 1993). 

54. 1972 Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, 
932 U.N.T.S. 3, 11 I.L.M. 262 (1972), Int'l Env. Rep. 35:0101, Cmnd 6228, 119 U.K.T.S. (1975). 

55. 1992 Annex II on the Prevention and Elimination of Pollution by Dumping or Incineration to the 
1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), 32 
I.L.M. 1090 (1993), Int'l Env. Rep. 35:0151. 

56. 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 
(London Pumping] Convention), 26 U.S.T. 2403, T.I.A.S. No. 8165, 1046 U.N.T.S. 120, U.K.T.S. No. 
43 (1976), 11 I.L.M. 1302 (1972). 

57. 1989 Convention on Salvage, S. Treaty Doc. 102-12, S. Exec. Rep. 102-1, U.N. LOS BULL., No. 
14, at 77 (Dec. 1989). 

58. 1982 Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, 
JEDDAH, NEW DIRECTIONS IN THE LAW OF THE SEA (New Series), Doc. J.19. 

59. 1986 Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, S. Treaty 
Doc. 101-21; S. Exec. Rep. 102-8; 26 I.L.M. 65 (1987); U.N. LOS BULL., No. 10, at 78 (Nov. 1987); Int'l 
Env. Rep. 21:3191. 

60. 1991 Protocol on Environmental Protection to the Antarctic Treaty, S. Treaty Doc. 102-22, S. Exec. 
Rep. 102-54, 30 I.L.M. 1483 (1991), Int'l Env. Rep. 21:3801. 

61. 1992 Convention on the Protection of the Black Sea against Pollution, 32 I.L.M. 1 110 (1993); U.N. 
LOS BULL., No. 22, at 31 (Jan. 1993). 

62. 22 I.L.M. 226, S. Treaty Doc. 98-13, pp. 17-18, 43. 

63. S. Treaty Doc. 101-21, p. 53. 

64. S. Treaty Doc. 102-5, S. Exec. Rep. 102-36. 

65. 176 L.N.T.S. 201, 3 Hudson 1837. 

66. 176 L.N.T.S. 215. 

67. 13 U.S.T. 2312, T.I.A.S. No. 5200, U.K.T.S. No. 5 (1963), 450 U.N.T.S. 82. 

68. 21 I.L.M. 1261 (1982). 

69. 15 U.S.T. 1601, T.I.A.S., No. 5639, U.K.T.S. No. 3 (1965), 516 U.N.T.S. 205. 

70. 57 Am. J. Int'l L. 268 (1962). 

71. 27 I.L.M. 672 (1988), U.N. LOS BULL., No. 11, at 14 (July 1988). 

72. Schachte, National Security Interests in the 1982 UN Convention on the Law of the Sea, Council on Ocean 
Law, Special Report, Feb. 1993; Galdorisi, Who Needs the Law of the Sea?, U.S. Nav. Inst. Proc, at 71 (July 
1993); Galdorisi, A Narrow Window of Opportunity, id., at 60-62 (July 1994). 

73. Panel on the Law of Ocean Uses, U.S. Interests and the United Nations Convention on the Law of the Sea, 
21 Ocean Deve. & Int'l L. 373 (1990). 



APPENDICES 



Appendices 275 
1. President's Ocean Policy Statement, March 10, 1983 

The United States has long been a leader in developing customary and 
conventional law of the sea. Our objectives have consistently been to provide a 
legal order that will, among other things, facilitate peaceful, international uses 
of the oceans and provide for equitable and effective management and conser- 
vation of marine resources. The United States also recognizes that all nations 
have an interest in these issues. 

Last July, I announced that the United States will not sign the United Nations 
Law of the Sea Convention that was opened for signature on December 10. 
We have taken this step because several major problems in the Convention's 
deep seabed mining provisions are contrary to the interests and principles of 
industrialized nations and would not help attain the aspirations of developing 
countries. 

The United States does not stand alone in these concerns. Some important 
allies and friends have not signed the convention. Even some signatory states 
have raised concerns about these problems. 

However, the convention contains provisions with respect to traditional uses 
of the oceans which generally confirm existing maritime law and practice and 
fairly balance the interests of all States. 

Today, I am announcing three decisions to promote and protect the oceans 
interests of the United States in a manner consistent with those fair and balanced 
results in the Convention and international law. 

First, the United States is prepared to accept and act in accordance with the 
balance of interests relating to traditional uses of the oceans — such as navigation 
and overflight. In this respect, the United States will recognize the rights of other 
States in the waters off their coasts, as reflected in the Convention, so long as 
the rights and freedoms of the United States and others under international law 
are recognized by such coastal States. 

Second, the United States will exercise and assert its navigation and overflight 
rights and freedoms on a worldwide basis in a manner that is consistent with the 
balance of interests reflected in the Convention. The United States will not, 
however, acquiesce in unilateral acts of other States designed to restrict the rights 
and freedoms of the international community in navigation and overflight and 
other related high seas uses. 

Third, I am proclaiming today an Exclusive Economic Zone in which the 
United States will exercise sovereign rights in living and nonliving resources 
within 200 nautical miles of its coast. This will provide United States jurisdiction 
for mineral resources out to 200 nautical miles that are not on the continental 
shelf. Recently discovered deposits there could be an important future source 
of strategic minerals. 



276 Excessive Maritime Claims 

Within this Zone, all nations will continue to enjoy the high seas rights and 
freedoms that are not resource related, including the freedoms of navigation and 
overflight. My proclamation does not change existing United States policies 
concerning the continental shelf, marine mammals, and fisheries, including 
highly migratory species of tuna which are not subject to United States 
jurisdiction. The United States will continue efforts to achieve international 
management of these species. The proclamation also reinforces this 
government's policy of promoting the United States fishing industry. 

While international law provides for a right of jurisdiction over marine scientific 
research within such a 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 in a manner consistent with international law. 

The Exclusive Economic Zone established today will also enable the United 
States to protect the marine environment. In this connection, the United States 
will continue to work through the International Maritime Organization and 
other appropriate international organizations to develop uniform international 
measures for the protection of the marine environment while imposing no 
unreasonable burdens on commercial shipping. 

The policy decisions I am announcing today will not affect the application of 
existing United States law concerning the high seas or existing authorities of any 
United States Government agency. 

In addition to the above policy steps, the United States will continue to work 
with other countries to develop a regime, free of unnecessary political and 
economic restraints, for mining deep seabed minerals beyond national jurisdic- 
tion. Deep seabed mining remains a lawful exercise of the freedom of the high 
seas open to all nations. The United States will continue to allow its firms to 
explore for and, when the market permits, exploit these resources. 

The administration looks forward to working with the Congress on legislation 
to implement these new policies. 

I Public Papers of the Presidents: Ronald Reagan 1983, at 378-79. 

Notes 

1. 2 Public Papers of the Presidents: Ronald Reagan 1982, at 911-12. 

2. Germany, United Kingdom, Israel, Turkey, Ecuador, Peru, and Venezuela, among others, declined to 
sign the LOS Convention. 

3. Effective January 1, 1992, the United States commenced exercising jurisdiction over tuna in the U.S. 
EEZ. 16 U.S.C. sec. 1812, as amended by Pub.L. 101-627. 



Appendices 277 

2. Proclamation 5030, Exclusive Economic Zone of the United 
States of America, March 10, 1983 

By the President of the United States of America 
A Proclamation 

WHEREAS the Government of the United States of America desires to 
facilitate the wise development and use of the oceans consistent with interna- 
tional law; 

WHEREAS international law recognizes that, in a zone beyond its territory 
and adjacent to its territorial sea, known as the Exclusive Economic Zone, a 
coastal State may assert certain sovereign rights over the natural resources and 
related jurisdictions; and 

WHEREAS the establishment of an Exclusive Economic Zone by the United 
States , will advance the development of ocean resources and promote the 
protection of the marine environment, while not affecting other lawful uses of 
the zone, including the freedoms of navigation and overflight, by other States; 

NOW, THEREFORE, I, RONALD REAGAN, by the authority vested in 
me as President by the Constitution and laws of the United States of America, 
do hereby proclaim the sovereign rights and jurisdiction of the United States of 
America and confirm also the rights and freedoms of all States within an Exclusive 
Economic Zone, as described herein. 

The Exclusive Economic Zone of the United States is a zone contiguous to 
the territorial sea, including zones contiguous to the territorial sea of the United 
States, the Commonwealth of Puerto Rico, the Commonwealth of the North- 
ern Mariana Islands (to the extent consistent with the Covenant and the United 
Nations Trusteeship Agreement), and United States overseas territories and 
possessions. The Exclusive Economic Zone extends to a distance 200 nautical 
miles from the baseline from which the breadth of the territorial sea is measured. 
In cases where the maritime boundary with a neighboring State remains to be 
determined, the boundary of the Exclusive Economic Zone shall be determined 
by the United States and other State concerned in accordance with equitable 
principles. 

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. 



278 Excessive Maritime Claims 

This Proclamation does not change existing United States policies concerning 
the continental shelf, marine mammals and fisheries, including highly migratory 
species of tuna which are not subject to United States jurisdiction and require 
international agreements for effective management. 

The United States will exercise these sovereign rights and jurisdictions in 
accordance with the rules of international law. 

Without prejudice to the sovereign rights and jurisdiction of the United 
States, the Exclusive Economic Zone remains an area beyond the territory and 
territorial sea of the United States in which all States enjoy the high seas freedoms 
of navigation and overflight, the laying of submarine cables and pipelines, and 
other internationally lawful uses of the seas. 

IN WITNESS WHEREOF, I have hereunto set my hand this tenth day 
of March, in the year of our Lord nineteen hundred and eighty-three, and 
of the Independence of the United States of America the two hundred and 
seventh. 

/s/ Ronald Reagan 

48 Fed. Reg. 10,605 (1983) 



Appendices 279 

3. Proclamation 5928, Territorial Sea of the United States of 
America, December 27, 1988 

By the President of the United States of America 
A Proclamation 

International law recognizes that coastal nations may exercise sovereignty and 
jurisdiction over their territorial seas. 

The territorial sea of the United States is a maritime zone extending beyond 
the land territory and internal waters of the United States over which the United 
States exercises sovereignty and jurisdiction, a sovereignty and jurisdiction that 
extends to the airspace over the territorial sea, as well as to its bed and subsoil. 

Extension of the territorial sea by the United States to the limits permitted 
by international law will advance the national security and other significant 
interests of the United States. 

NOW, THEREFORE, I, RONALD REAGAN, by the authority vested in 
me as President by the Constitution of the United States of America, and in 
accordance with international law, do hereby proclaim the extension of the 
territorial sea of the United States of America, the Commonwealth of Puerto 
Rico, Guam, American Samoa, the United States Virgin Islands, the Common- 
wealth of the Northern Mariana Islands, and any other territory or possession 
over which the United States exercises sovereignty. 

The territorial sea of the United States henceforth extends to 12 nautical 
miles from the baselines of the United States determined in accordance with 
international law. 

In accordance with international law, as reflected in the applicable provisions of the 
1982 United Nations Convention on the Law of the Sea, within the territorial sea of the 
United States, the ships of all countries enjoy the right of innocent passage and the ships 
and aircraft of all countries enjoy the right of transit passage through international straits. 

Nothing in this Proclamation: 

(a) extends or otherwise alters existing Federal or State law or any jurisdic- 
tion, rights, legal interests, or obligations derived therefrom; or 

(b) impairs the determination, in accordance with international law, of any 
maritime boundary of the United States with a foreign jurisdiction. 

IN WITNESS WHEREOF, I have hereunto set my hand this 27th day of 
December, in the year of our Lord nineteen hundred and eighty-eight, and of the 
Independence of the United States of America the two hundred and thirteenth. 

/s/ Ronald Reagan 

54 Fed. Reg. 777 (1989) 



280 Excessive Maritime Claims 



Appendices 281 

4. Joint Statement by the United States and Soviet Union, with 
Uniform Interpretation of Rules of International Law Governing 
Innocent Passage, September 23, 1989 

Since 1986, representatives of the United States of America and the Union 
of Soviet Socialist Republics have been conducting friendly and constructive 
discussions of certain international legal aspects of traditional uses of the 
oceans, in particular, navigation. 

The Governments are guided by the provisions of the 1982 United Nations 
Convention on the Law of the Sea, which, with respect to traditional uses of 
the oceans, generally constitute international law and practice and balance fairly 
the interests of all States. They recognize the need to encourage all States to 
harmonize their internal laws, regulations and practices with those provisions. 

The Governments consider it useful to issue the attached Uniform Interpreta- 
tion of the Rules of International Law Governing Innocent Passage. Both 
Governments have agreed to take the necessary steps to conform their internal 
laws, regulations and practices with this understanding of the rules. 

FOR THE UNITED STATES OF FOR THE UNION OF SOVIET 

AMERICA: SOCIALIST REPUBLICS: 

/s/ James W. Baker III /s/ E. Shevardnadze 

Jackson Hole, Wyoming September 23, 1989 

Uniform Interpretation of the Rules of International Law 
Governing Innocent Passage 

1 . The relevant rules of international law governing innocent passage of ships 
in the territorial sea are stated in the 1982 United Nations Convention on the 
Law of the Sea (Convention of 1982), particularly in Part II, Section 3 [Innocent 
Passage in the Territorial Sea] . 

2. All ships, including warships, regardless of cargo, armament or means of 
propulsion, enjoy the right of innocent passage through the territorial sea in 
accordance with international law, for which neither prior notification nor 
authorization is required. 

3. Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive 
list of activities that would render passage not innocent. A ship passing through 
the territorial sea that does not engage in any of those activities is in innocent 
passage. 

4. A coastal State which questions whether the particular passage of a ship 
through its territorial sea is innocent shall inform the ship of the reason why it 



282 Excessive Maritime Claims 

questions the innocence of the passage, and provide the ship an opportunity to 
clarify its intentions or correct its conduct in a reasonably short period of time. 

5. Ships exercising the right of innocent passage shall comply with all laws 
and regulations of the coastal State adopted in conformity with relevant rules of 
international law as reflected in Articles 21, 22, 23 and 25 of the Convention of 
1982. These include the laws and regulations requiring ships exercising the right 
of innocent passage through its territorial sea to use such sea lanes and traffic 
separation schemes as it may prescribe where needed to protect safety of 
navigation. In areas where no such sea lanes or traffic separation schemes have 
been prescribed, ships nevertheless enjoy the right of innocent passage. 

6. Such laws and regulations of the coastal State may not have the practical 
effect of denying or impairing the exercise of the right of innocent passage as set 
forth in Article 24 of the Convention of 1982. 

7. If a warship engages in conduct which violates such laws or regulations or 
renders its passage not innocent and does not take corrective action upon request, 
the coastal State may require it to leave the territorial sea, as set forth in Article 
30 of the Convention of 1982. In such case the warship shall do so immediately. 

8. Without prejudice to the exercise of rights of coastal and flag States, all 
differences which may arise regarding a particular case of passage of ships through 
the territorial sea shall be settled through diplomatic channels or other agreed 
means. 

DEP'T ST. BULL., Nov. 1989, at 26; 28 I.L.M. 1444-47 (1989); 84 Am. J. Int'l L. 239-42 (1990); U.N. 
LOS BULL., No. 14, Dec. 1989, at 12-13. 



Appendices 283 
5. Ratifications of the 1982 UN Convention on the Law of the Sea 

As of 1 July 1994, the following 62 nations had deposited their instruments 
of ratification or accession: 



Coastal or Island Nations 

Angola 

Antigua and Barbuda 

Bahamas 

Bahrain 

Barbados 

Belize 

Bosnia-Herzegovina 

Brazil 

Cameroon 

Cape Verde 

Comoros 

Costa Rica 

Cuba 

Cyprus 

Djibouti 

Dominica 

Egypt 

Fiji 

Gambia 

Ghana 

Grenada 

Guinea 

Guinea-Bissau 

Guyana 

Honduras 

Iceland 

Indonesia 

Iraq 

Ivory Coast 

Jamaica 

Kenya 

Kuwait 

Malta 

Marshall Islands 

Mexico 

Micronesia, Federated States of 



Dates of Ratification 

5 December 1990 

2 February 1989 

29 July 1983 

30 May 1985 

12 October 1993 

13 August 1983 
12 January 1994 
22 December 1988 

19 November 1985 
10 August 1987 

21 June 1994 

21 September 1992 

15 August 1984 

12 December 1988 

8 October 1991 

24 October 1991 
26 August 1983 

10 December 1982 

22 May 1984 
7 June 1983 

25 April 1991 

6 September 1985 

25 August 1986 

16 November 1993 
5 October 1993 

21 June 1985 

3 February 1986 
30 July 1985 

26 March 1984 
21 March 1983 
2 March 1989 
2 May 1986 

20 May 1993 

9 August 1991 
18 March 1983 
29 April 1991 



284 Excessive Maritime Claims 



Namibia (UN Council for) 

Nigeria 

Oman 

Philippines 

Saint Lucia 

St. Kitts and Nevis 

St. Vincent and the Grenadines 

Sao Tome and Principe 

Senegal 

Seychelles 

Somalia 

Sudan 

Tanzania, United Republic of 

Togo 

Trinidad and Tobago 

Tunisia 

Uruguay 

Yemen 

Yugoslavia 

Zaire 



18 April 1983 
14 August 1986 
17 August 1989 
8 May 1984 
27 March 1985 
7 January 1993 
1 October 1993 
3 November 1987 
25 October 1984 

16 September 1991 

24 July 1989 

23 January 1985 
30 September 1985 
6 April 1985 

25 April 1986 

24 April 1985 

10 December 1992 
21 July 1987 
5 May 1986 

17 February 1989 



Land-Locked Nations 



Dates of Ratification 



Botswana 

Mali 

Paraguay 

Uganda 

Zambia 

Zimbabwe 



2 May 1990 

16 July 1985 

26 September 1986 

9 November 1990 

7 March 1983 

24 February 1993 



Source: U.N. Office for Ocean Affairs and the Law of the Sea. 



Appendices 285 

6. Relevant Articles of the 1982 United Nations Convention on the 
Law of the Sea 

Reproduced from 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, 1983, by permission of the United Nations. 



PART I 
INTRODUCTION 



Article 1 
Use of terms and scope 

1. For the purposes of this Convention: 

(1) "Area" means the sea-bed and ocean floor and subsoil thereof, 
beyond the limits of national jurisdiction; 

(2) "Authority" means the International Sea-Bed Authority; 

(3) "activities in the Area" means all activities of exploration for, and ex- 
ploitation of, the resources of the Area; 

(4) "pollution of the marine environment" means the introduction by 
man, directly or indirectly, of substances or energy into the marine environ- 
ment, including estuaries, which results or is likely to result in such deleterious 
effects as harm to living resources and marine life, hazards to human health, 
hindrance to marine activities, including fishing and other legitimate uses of 
the sea, impairment of quality for use of sea water and reduction of amenities; 

(5) (a) "dumping" means: 

(i) any deliberate disposal of wastes or other matter from vessels, 
aircraft, platforms or other man-made structures at sea; 

(ii) any deliberate disposal of vessels, aircraft, platforms or other 
man-made structures at sea; 
(b) "dumping" does not include: 

(i) the disposal of wastes or other matter incidental to, or derived 
from the normal operations of vessels, aircraft, platforms or 
other man-made structures at sea and their equipment, other 
than wastes or other matter transported by or to vessels, air- 
craft, platforms or other man-made structures at sea, operating 
for the purpose of disposal of such matter or derived from the 
treatment of such wastes or other matter on such vessels, air- 
craft, platforms or structures; 

(ii) placement of matter for a purpose other than the mere disposal 
thereof, provided that such placement is not contrary to the 
aims of this Convention. 

2. (1) "States Parties" means States which have consented to be bound by 
this Convention and for which this Convention is in force. 

(2) This Convention applies mutatis mutandis to the entities referred to in 
article 305, paragraph Kb), (c), (d), (e) and (f), which become Parties to this 
Convention in accordance with the conditions relevant to each, and to that 
extent "States Parties" refers to those entities. 



286 Excessive Maritime Claims 

PART II 
TERRITORIAL SEA AND CONTIGUOUS ZONE 

SECTION 1. GENERAL PROVISIONS 



Article 2 

Legal status of the territorial sea, of the air space over 

the territorial sea and of its bed and subsoil 

1. The sovereignty of a coastal State extends, beyond its land territory and in- 
ternal waters and, in the case of an archipelagic State, its archipelagic waters, to 
an adjacent belt of sea, described as the territorial sea. 

2. This sovereignty extends to the air space over the territorial sea as well as 
to its bed and subsoil. 

3. The sovereignty over the territorial sea is exercised subject to this Con- 
vention and to other rules of international law. 



SECTION 2. LIMITS OF THE TERRITORIAL SEA 



Article 3 
Breadth of the territorial sea 

Every State has the right to establish the breadth of its territorial sea up to a 
limit not exceeding 12 nautical miles, measured from baselines determined in 
accordance with this Convention. 

Article 4 
Outer limit of the territorial sea 

The outer limit of the territorial sea is the line every point of which is at a dis- 
tance from the nearest point of the baseline equal to the breadth of the territo- 
rial sea. 

Article 5 
Normal baseline 

Except where otherwise provided in this Convention, the normal baseline 
for measuring the breadth of the territorial sea is the low-water line along the 
coast as marked on large-scale charts officially recognized by the coastal State. 

Article 6 
Reefs 

In the case of islands situated on atolls or of islands having fringing reefs, the 
baseline for measuring the breadth of the territorial sea is the seaward low-water 
line of the reef, as shown by the appropriate symbol on charts officially recog- 
nized by the coastal State. 



Appendices 287 

Article 7 
Straight baselines 

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. 

2. Where because of the presence of a delta and other natural conditions the 
coastline is highly unstable, the appropriate points may be selected along the 
furthest seaward extent of the low-water line and, notwithstanding subsequent 
regression of the low-water line, the straight baselines shall remain effective 
until changed by the coastal State in accordance with this Convention. 

3. The drawing of straight 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. 

4. Straight baselines shall not be drawn to and from low-tide elevations, 
unless lighthouses or similar installations which are permanently above sea 
level have been built on them or except in instances where the drawing of base- 
lines to and from such elevations has received general international recognition. 

5. Where the method of straight baselines is applicable under paragraph 1, 
account may be taken, in determining particular baselines, of economic inter- 
ests peculiar to the region concerned, the reality and the importance of which 
are clearly evidenced by long usage. 

6. The system of straight baselines may not be applied by a State in such a 
manner as to cut off the territorial sea of another State from the high seas or an 
exclusive economic zone. 

Article 8 
Internal waters 

1. Except as provided in Part IV, waters on the landward side of the baseline 
of the territorial sea form part of the internal waters of the State. 

2. Where the establishment of a straight baseline in accordance with the 
method set forth in article 7 has the effect of enclosing as internal waters areas 
which had not previously been considered as such, a right of innocent passage 
as provided in this Convention shall exist in those waters. 

Article 9 
Mouths of rivers 

If a river flows directly into the sea, the baseline shall be a straight line across 
the mouth of the river between points on the low-water line of its banks. 

Article 10 
Bays 

1. This article relates only to bays the coasts of which belong to a single State. 

2. For the purposes of this Convention, a bay is a well-marked indentation 
whose penetration is in such proportion to the width of its mouth as to contain 
land-locked waters and constitute more than a mere curvature of the coast. An 
indentation shall not, however, be regarded as a bay unless its area is as large 
as, or larger than, that of the semi-circle whose diameter is a line drawn across 
the mouth of that indentation. 



288 Excessive Maritime Claims 

3. For the purpose of measurement, the area of an indentation is that lying 
between the low-water mark around the shore of the indentation and a line 
joining the low-water mark of its natural entrance points. Where, because of 
the presence of islands, an indentation has more than one mouth, the semi- 
circle shall be drawn on a line as long as the sum total of the lengths of the 
lines across the different mouths. Islands within an indentation shall be 
included as if they were part of the water area of the indentation. 

4. If the distance between the low-water marks of the natural entrance points 
of a bay does not exceed 24 nautical miles, a closing line may be drawn between 
these two low-water marks, and the waters enclosed thereby shall be considered 
as internal waters. 

5. Where the distance between the low-water marks of the natural entrance 
points of a bay exceeds 24 nautical miles, a straight baseline of 24 nautical miles 
shall be drawn within the bay in such a manner as to enclose the maximum area 
of water that is possible with a line of that length. 

6. The foregoing provisions do not apply to so-called "historic''' bays, or in 
any case where the system of straight baselines provided for in article 7 is 
applied. 

Article 11 
Ports 

For the purpose of delimiting the territorial sea, the outermost permanent 
harbour works which form an integral part of the harbour system are regarded 
as forming part of the coast. Off-shore installations and artificial islands shall 
not be considered as permanent harbour works. 

Article 12 
Roadsteads 

Roadsteads which are normally used for the loading, unloading and anchoring 
of ships, and which would otherwise be situated wholly or partly outside the 
outer limit of the territorial sea, are included in the territorial sea. 

Article 13 
Low-tide elevations 

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 eleva- 
tion is situated wholly or partly at a distance not exceeding the breadth of the ter- 
ritorial 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. 

Article 14 
Combination of methods for determining baselines 

The coastal State may determine baselines in turn by any of the methods 
provided for in the foregoing articles to suit different conditions. 

Article 15 
Delimitation of the territorial sea between States with opposite or adjacent coasts 

Where the coasts of two States are opposite or adjacent to each other, neither 
of the two States is entitled, failing agreement between them to the contrary, to 



Appendices 289 

extend its territorial sea beyond the median line every point of which is 
equidistant from the nearest points on the baselines from which the breadth 
of the territorial seas of each of the two States is measured. The above provi- 
sion does not apply, however, where it is necessary by reason of historic title 
or other special circumstances to delimit the territorial seas of the two States 
in a way which is at variance therewith. 

Article 16 
Charts and lists of geographical co-ordinates 

1. The baselines for measuring the breadth of the territorial sea determined 
in accordance with articles 7, 9 and 10, or the limits derived therefrom, and the 
lines of delimitation drawn in accordance with articles 12 and 15 shall be shown 
on charts of a scale or scales adequate for ascertaining their position. Alterna- 
tively, a list of geographical co-ordinates of points, specifying the geodetic 
datum, may be substituted. 

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. 



SECTION 3. INNOCENT PASSAGE 
IN THE TERRITORIAL SEA 

SUBSECTION A. RULES APPLICABLE TO ALL SHIPS 

Article 17 
Right of innocent passage 

Subject to this Convention, ships of all States, whether coastal or land-locked, 
enjoy the right of innocent passage through the territorial sea. 

Article 18 
Meaning of passage 

1. Passage means navigation through the territorial sea for the purpose of: 

(a) traversing that sea without entering internal waters or calling at a road- 
stead or port facility outside internal waters; or 

(b) proceeding to or from internal waters or a call at such roadstead or port 
facility. 

2. Passage shall be continuous and expeditious. However, passage includes 
stopping and anchoring, but only in so far as the same are incidental to ordinary 
navigation or are rendered necessary by force majeure or distress or for the pur- 
pose of rendering assistance to persons, ships or aircraft in danger or distress. 

Article 19 
Meaning of innocent passage 

1. Passage is innocent so long as it is not prejudicial to the peace, good order 
or security of the coastal State. Such passage shall take place in conformity with 
this Convention and with other rules of international law. 

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, 
good order or security of the coastal State if in the territorial sea it engages in 
any of the following activities: 



290 Excessive Maritime Claims 

(a) any threat or use of force against the sovereignty, territorial integrity or 
political independence of the coastal State, or in any other manner in 
violation of the principles of international law embodied in the Charter 
of the United Nations; 

(b) any exercise or practice with weapons of any kind; 

(c) any act aimed at collecting information to the prejudice of the defence or 
security of the coastal State; 

(d) any act of propaganda aimed at affecting the defence or security of the 
coastal State; 

(e) the launching, landing or taking on board of any aircraft; 

(f) the launching, landing or taking on board of any military device; 

(g) the loading or unloading of any commodity, currency or person contrary 
to the customs, fiscal, immigration or sanitary laws and regulations of 
the coastal State; 

(h) any act of wilful and serious pollution contrary to this Convention; 

(i) any fishing activities; 

(j) the carrying out of research or survey activities; 

(k) any act aimed at interfering with any systems of communication or any 

other facilities or installations of the coastal State; 
(1) any other activity not having a direct bearing on passage. 



Article 20 
Submarines and other underwater vehicles 

In the territorial sea, submarines and other underwater vehicles are required 
to navigate on the surface and to show their flag. 



Article 21 

Laws and regulations of the coastal State relating to 

innocent passage 

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: 

(a) the safety of navigation and the regulation of maritime traffic; 

(b) the protection of navigational aids and facilities and other facilities or 
installations; 

(c) the protection of cables and pipelines; 

(d) the conservation of the living resources of the sea; 

(e) the prevention of infringement of the fisheries laws and regulations of 
the coastal State; 

(f) the preservation of the environment of the coastal State and the preven- 
tion, reduction and control of pollution thereof; 

(g) marine scientific research and hydrographic surveys; 

(h) the prevention of infringement of the customs, fiscal, immigration or 
sanitary laws and regulations of the coastal State. 

2. Such laws and regulations shall not apply to the design, construction, man- 
ning or equipment of foreign ships unless they are giving effect to generally ac- 
cepted international rules or standards. 

3. The coastal State shall give due publicity to all such laws and regulations. 



Appendices 291 

4. Foreign ships exercising the right of innocent passage through the territo- 
rial sea shall comply with all such laws and regulations and all generally accept- 
ed international regulations relating to the prevention of collisions at sea. 

Article 22 

Sea lanes and traffic separation schemes 

in the territorial sea 

1. The coastal State may, where necessary having regard to the safety of navi- 
gation, require foreign ships exercising the right of innocent passage through its 
territorial sea to use such sea lanes and traffic separation schemes as it may 
designate or prescribe for the regulation of the passage of ships. 

2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or 
other inherently dangerous or noxious substances or materials may be required 
to confine their passage to such sea lanes. 

3. In the designation of sea lanes and the prescription of traffic separation 
schemes under this article, the coastal State shall take into account: 

(a) the recommendations of the competent international organization; 

(b) any channels customarily used for international navigation; 

(c) the special characteristics of particular ships and channels; and 

(d) the density of traffic. 

4. The coastal State shall clearly indicate such sea lanes and traffic separation 
schemes on charts to which due publicity shall be given. 

Article 23 

Foreign nuclear-powered ships and ships carrying nuclear or 

other inherently dangerous or noxious substances 

Foreign nuclear-powered ships and ships carrying nuclear or other inherently 
dangerous or noxious substances shall, when exercising the right of innocent 
passage through the territorial sea, carry documents and observe special precau- 
tionary measures established for such snips by international agreements. 

Article 24 
Duties of the coastal State 

1. The coastal State shall not hamper the innocent passage of foreign ships 
through the territorial sea except in accordance with this Convention. In partic- 
ular, in the application of this Convention or of any laws or regulations adopted 
in conformity with this Convention, the coastal State shall not: 

(a) impose requirements on foreign ships which have the practical effect of 
denying or impairing the right of innocent passage; or 

(b) discriminate in form or in fact against the ships of any State or against 
ships carrying cargoes to, from or on behalf of any State. 

2. The coastal State shall give appropriate publicity to any danger to naviga- 
tion, of which it has knowledge, within its territorial sea. 

Article 25 
Rights of protection of the coastal State 

1. The coastal State may take the necessary steps in its territorial sea to pre- 
vent passage which is not innocent. 

2. In the case of ships proceeding to internal waters or a call at a port facility 
outside internal waters, the coastal State also has the right to take the necessary 



292 Excessive Maritime Claims 

steps to prevent any breach of the conditions to which admission of those 
ships to internal waters or such a call is subject. 

3. The coastal State may, without discrimination in form or in fact among 
foreign ships, suspend temporarily in specified areas of its territorial sea the 
innocent passage of foreign ships if such suspension is essential for the protec- 
tion of its security, including weapons exercises. Such suspension shall take 
effect only after having been duly published. 

Article 26 
Charges which may be levied upon foreign ships 

1. No charge may be levied upon foreign ships by reason only of their 
passage through the territorial sea. 

2. Charges may be levied upon a foreign ship passing through the territorial 
sea as payment only for specific services rendered to the ship. These charges 
shall be levied without discrimination. 



SUBSECTION B. RULES APPLICABLE TO 

MERCHANT SHIPS AND GOVERNMENT SHIPS 

OPERATED FOR COMMERCIAL PURPOSES 

Article 27 
Criminal jurisdiction on board a foreign ship 

1. The criminal jurisdiction of the coastal State should not be exercised on 
board a foreign ship passing through the territorial sea to arrest any person or to 
conduct any investigation in connection with any crime committed on board 
the ship during its passage, save only in the following cases: 

(a) if the consequences of the crime extend to the coastal State; 

(b) if the crime is of a kind to disturb the peace of the country or the good 
order of the territorial sea; 

(c) if the assistance of the local authorities has been requested by the master of 
the ship or by a diplomatic agent or consular officer of the flag State; or 

(d) if such measures are necessary for the suppression of illicit traffic in 
narcotic drugs or psychotropic substances. 

2. The above provisions do not affect the right of the coastal State to take 
any steps authorized by its laws for the purpose of an arrest or investigation on 
board a foreign ship passing through the territorial sea after leaving internal 
waters. 

3. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if 
the master so requests, notify a diplomatic agent or consular officer of the flag 
State before taking any steps, and shall facilitate contact between such agent or 
officer and the ship's crew. In cases of emergency this notification may be com- 
municated while the measures are being taken. 

4. In considering whether or in what manner an arrest should be made, the 
local authorities shall have due regard to the interests of navigation. 

5. Except as provided in Part XII or with respect to violations of laws and 
regulations adopted in accordance with Part V, the coastal State may not take 
any steps on board a foreign ship passing through the territorial sea to arrest any 
person or to conduct any investigation in connection with any crime committed 
before the ship entered the territorial sea, if the ship, proceeding from a foreign 
port, is only passing through the territorial sea without entering internal waters. 



Appendices 293 

Article 28 
Civil jurisdiction in relation to foreign ships 

1. The coastal State should not stop or divert a foreign ship passing through 
the territorial sea for the purpose of exercising civil jurisdiction in relation to a 
person on board the ship. 

2. The coastal State may not levy execution against or arrest the ship for the 
purpose of any civil proceedings, save only in respect of obligations or liabilities 
assumed or incurred by the ship itself in the course or for the purpose of its 
voyage through the waters of the coastal State. 

3. Paragraph 2 is without prejudice to the right of the coastal State, in accor- 
dance with its laws, to levy execution against or to arrest, for the purpose of any 
civil proceedings, a foreign ship lying in the territorial sea, or passing through 
the territorial sea after leaving internal waters. 



SUBSECTION C. RULES APPLICABLE TO 

WARSHIPS AND OTHER GOVERNMENT SHIPS 

OPERATED FOR NON-COMMERCIAL PURPOSES 

Article 29 
Definition of warships 

For the purposes of this Convention, "warship" means a ship belonging to 
the armed forces of a State bearing the external marks distinguishing such ships 
of its nationality, under the command of an officer duly commissioned by the 
government of the State and whose name appears in the appropriate service list 
or its equivalent, and manned by a crew which is under regular armed forces 
discipline. 

Article 30 

Non-compliance by warships with the laws and 

regulations of the coastal State 

If any warship does not comply with the laws and regulations of the coastal 
State concerning passage through the territorial sea and disregards any request 
for compliance therewith which is made to it, the coastal State may require it to 
leave the territorial sea immediately. 

Article 31 

Responsibility of the flag State for damage caused by a 

warship or other government ship operated for non-commercial purposes 

The flag State shall bear international responsibility for any loss or damage to 
the coastal State resulting from the non-compliance by a warship or other 
government ship operated for non-commercial purposes with the laws and regu- 
lations of the coastal State concerning passage through the territorial sea or with 
the provisions of this Convention or other rules of international law. 

Article 32 

Immunities of warships and other government ships operated 

for non-commercial purposes 

With such exceptions as are contained in subsection A and in articles 30 and 
31, nothing in this Convention affects the immunities of warships and other 
government ships operated for non-commercial purposes. 



294 Excessive Maritime Claims 

SECTION 4. CONTIGUOUS ZONE 



Article 33 
Contiguous zone 

1. In a zone contiguous to its territorial sea, described as the contiguous 
zone, the coastal State may exercise the control necessary to: 

(a) prevent infringement of its customs, fiscal, immigration or sanitary laws 
and regulations within its territory or territorial sea; 

(b) punish infringement of the above laws and regulations committed within 
its territory or territorial sea. 

2. The contiguous zone may not extend beyond 24 nautical miles from the 
baselines from which the breadth of the territorial sea is measured. 



PART III 
STRAITS USED FOR INTERNATIONAL NAVIGATION 

SECTION 1. GENERAL PROVISIONS 

Article 34 

Legal status of waters forming straits used for 

international navigation 

1. The regime of passage through straits used for international navigation es- 
tablished in this Part shall not in other respects affect the legal status of the waters 
forming such straits or the exercise by the States bordering the straits of their sov- 
ereignty orjurisdiction over such waters and their air space, bed and subsoil. 

2. The sovereignty or jurisdiction of the States bordering the straits is exer- 
cised subject to this Part and to other rules of international law. 

Article 35 
Scope of this Part 

Nothing in this Part affects: 

(a) any areas of internal waters within a strait, except where the establish- 
ment of a straight baseline in accordance with the method set forth in 
article 7 has the effect of enclosing as internal waters areas which had not 
previously been considered as such; 

(b) the legal status of the waters beyond the territorial seas of States border- 
ing straits as exclusive economic zones or high seas; or 

(c) the legal regime in straits in which passage is regulated in whole or in 
part by long-standing international conventions in force specifically relat- 
ing to such straits. 

Article 36 

High seas routes or routes through exclusive economic zones 

through straits used for international navigation 

This Part does not apply to a strait used for international navigation if there 
exists through the strait a route through the high seas or through an exclusive 



Appendices 295 

economic zone of similar convenience with respect to navigational and hy- 
drographical characteristics; in such routes, the other relevant Parts of this 
Convention, including the provisions regarding the freedoms of navigation 
and overflight, apply. 



SECTION 2. TRANSIT PASSAGE 



Article 37 
Scope of this section 

This section applies to straits which are used for international navigation be- 
tween one part of the high seas or an exclusive economic zone and another part 
of the high seas or an exclusive economic zone. 

Article 38 
Right of transit passage 

1. In straits referred to in article 37, all ships and aircraft enjoy the right of 
transit passage, which shall not be impeded; except that, if the strait is formed 
by an island of a State bordering the strait and its mainland, transit passage shall 
not apply if there exists seaward of the island a route through the high seas or 
through an exclusive economic zone of similar convenience with respect to 
navigational and hydrographical characteristics. 

2. Transit passage means the exercise in accordance with this Part of the free- 
dom of navigation and overflight solely for the purpose of continuous and expe- 
ditious transit of the strait between one part of the high seas or an exclusive 
economic zone and another part of the high seas or an exclusive economic 
zone. However, the requirement of continuous and expeditious transit does 
not preclude passage through the strait for the purpose of entering, leaving or 
returning from a State bordering the strait, subject to the conditions of entry to 
that State. 

3. Any activity which is not an exercise of the right of transit passage through 
a strait remains subject to the other applicable provisions of this Convention. 

Article 39 
Duties of ships and aircraft during transit passage 

1. Ships and aircraft, while exercising the right of transit 
passage, shall: 

(a) proceed without delay through or over the strait; 

(b) refrain from any threat or use of force against the sovereignty, territorial 
integrity or political independence of States bordering the strait, or in 
any other manner in violation of the principles of international law 
embodied in the Charter of the United Nations; 

(c) refrain from any activities other than those incident to their normal 
modes of continuous and expeditious transit unless rendered necessary 
by force majeure or by distress; 

(d) comply with other relevant provisions of this Part. 

2. Ships in transit passage shall: 

(a) comply with generally accepted international regulations, procedures 
and practices for safety at sea, including the International Regulations 
for Preventing Collisions at Sea; 



296 Excessive Maritime Claims 

(b) comply with generally accepted international regulations, procedures 
and practices for the prevention, reduction and control of pollution 
from ships. 

3. Aircraft in transit passage shall: 

(a) observe the Rules of the Air established by the International Civil Avia- 
tion Organization as they apply to civil aircraft; state aircraft will normal- 
ly comply with such safety measures and will at all times operate with 
due regard for the safety of navigation; 

(b) at all times monitor the radio frequency assigned by the competent inter- 
nationally designated air traffic control authority or the appropriate inter- 
national distress radio frequency. 

Article 40 
Research and survey activities 

During transit passage, foreign ships, including marine scientific research and 
hydrographic survey ships, may not carry out any research or survey activities 
without the prior authorization of the States bordering straits. 

Article 41 

Sea lanes and traffic separation schemes in straits used for 

international na vigation 

1. In conformity with this Part, States bordering straits may designate sea 
lanes and prescribe traffic separation schemes for navigation in straits where 
necessary to promote the safe passage of ships. 

2. Such States may, when circumstances require, and after giving due publici- 
ty thereto, substitute other sea lanes or traffic separation schemes for any sea 
lanes or traffic separation schemes previously designated or prescribed by them. 

3. Such sea lanes and traffic separation schemes shall conform to generally 
accepted international regulations. 

4. Before designating or substituting sea lanes or prescribing or substituting 
traffic separation schemes, States bordering straits shall refer proposals to the 
competent international organization with a view to their adoption. The organi- 
zation may adopt only such sea lanes and traffic separation schemes as may be 
agreed with the States bordering the straits, after which the States may desig- 
nate, prescribe or substitute them. 

5. In respect of a strait where sea lanes or traffic separation schemes through 
the waters of two or more States bordering the strait are being proposed, the 
States concerned shall co-operate in formulating proposals in consultation with 
the competent international organization. 

6. States bordering straits shall clearly indicate all sea lanes and traffic separa- 
tion schemes designated or prescribed by them on charts to which due publicity 
shall be given. 

7. Ships in transit passage shall respect applicable sea lanes and traffic separa- 
tion schemes established in accordance with this article. 

Article 42 

Laws and regulations of States bordering straits 

relating to transit passage 

1 . Subject to the provisions of this section, States bordering straits may adopt 
laws and regulations relating to transit passage through straits, in respect of all 
or any of the following: 



Appendices 297 

(a) the safety of navigation and the regulation of maritime traffic, as 
provided in article 41; 

(b) the prevention, reduction and control of pollution, by giving effect to ap- 
plicable international regulations regarding the discharge of oil, oily 
wastes and other noxious substances in the strait; 

(c) with respect to fishing vessels, the prevention of fishing, including the 
stowage of fishing gear; 

(d) the loading or unloading of any commodity, currency or person in con- 
travention of the customs, fiscal, immigration or sanitary laws and regu- 
lations of States bordering straits. 

2. Such laws and regulations shall not discriminate in form or in fact among 
foreign ships or in their application have the practical effect of denying, hamper- 
ing or impairing the right of transit passage as defined in this section. 

3. States bordering straits shall give due publicity to all such laws and 
regulations. 

4. Foreign ships exercising the right of transit passage shall comply with such 
laws and regulations. 

5. The flag State of a ship or the State of registry of an aircraft entitled to sov- 
ereign immunity which acts in a manner contrary to such laws and regulations 
or other provisions of this Part shall bear international responsibility for any 
loss or damage which results to States bordering straits. 

Article 43 

Navigational and safety aids and other improvements and the 

prevention, reduction and control of pollution 

User States and States bordering a strait should by agreement co-operate: 

(a) in the establishment and maintenance in a strait of necessary navigational 
and safety aids or other improvements in aid of international navigation; 
and 

(b) for the prevention, reduction and control of pollution from ships. 

Article 44 
Duties of States bordering straits 

States bordering straits shall not hamper transit passage and shall give ap- 
propriate publicity to any danger to navigation or overflight within or over the 
strait of which they have knowledge. There shall be no suspension of transit 
passage. 



SECTION 3. INNOCENT PASSAGE 



Article 45 
Innocent passage 

1. The regime of innocent passage, in accordance with Part II, section 3, 
shall apply in straits used for international navigation: 

(a) excluded from the application of the regime of transit passage under ar- 
ticle 38, paragraph 1; or 

(b) between a part of the high seas or an exclusive economic zone and the 
territorial sea of a foreign State. 

2. There shall be no suspension of innocent passage through such straits. 



298 Excessive Maritime Claims 

PART IV 
ARCHIPELAGIC STATES 

Article 46 
Use of terms 

For the purposes of this Convention: 

(a) "archipelagic State" means a State constituted wholly by one or more ar- 
chipelagos and may include other islands; 

(b) "archipelago" means a group of islands, including parts of islands, inter- 
connecting waters and other natural features which are so closely inter- 
related that such islands, waters and other natural features form an in- 
trinsic geographical, economic and political entity, or which historically 
have been regarded as such. 

Article 47 
Archipelagic baselines 

1. An archipelagic State may draw straight archipelagic baselines joining the 
outermost points of the outermost islands and drying reefs of the archipelago 
provided that within such baselines are included the main islands and an area in 
which the ratio of the area of the water to the area of the land, including atolls, 
is between 1 to 1 and 9 to 1. 

2. The length of such baselines shall not exceed 100 nautical miles, except 
that up to 3 per cent of the total number of baselines enclosing any archipelago 
may exceed that length, up to a maximum length of 125 nautical miles. 

3. The drawing of such baselines shall not depart to any appreciable extent 
from the general configuration of the archipelago. 

4. Such baselines shall not be drawn to and from low-tide elevations, unless 
lighthouses or similar installations which are permanently above sea level have 
been built on them or where a low-tide elevation is situated wholly or partly at a dis- 
tance not exceeding the breadth of the territorial sea from the nearest island. 

5. The system of such baselines shall not be applied by an archipelagic State 
in such a manner as to cut off from the high seas or the exclusive economic 
zone the territorial sea of another State. 

6. If a part of the archipelagic waters of an archipelagic State lies between two 
parts of an immediately adjacent neighbouring State, existing rights and all 
other legitimate interests which the latter State has traditionally exercised in 
such waters and all rights stipulated by agreement between those States shall 
continue and be respected. 

7. For the purpose of computing the ratio of water to land under paragraph 1, 
land areas may include waters lying within the fringing reefs of islands and 
atolls, including that part of a steep-sided oceanic plateau which is enclosed or 
nearly enclosed by a chain of limestone islands and drying reefs lying on the 
perimeter of the plateau. 

8. The baselines drawn in accordance with this article shall be shown on 
charts of a scale or scales adequate for ascertaining their position. Alternatively, 
lists of geographical co-ordinates of points, specifying the geodetic datum, may 
be substituted. 

9. The archipelagic 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. 



Appendices 299 

Article 48 

Measurement of the breadth of the territorial sea, the 

contiguous zone, the exclusive economic zone and the 

continental shelf 

The breadth of the territorial sea, the contiguous zone, the exclusive 
economic zone and the continental shelf shall be measured from archipelagic 
baselines drawn in accordance with article 47. 

Article 49 

Legal status of archipelagic waters, of the airspace over 

archipelagic waters and of their bed and subsoil 

1. The sovereignty of an archipelagic State extends to the waters enclosed by 
the archipelagic baselines drawn in accordance with article 47, described as ar- 
chipelagic waters, regardless of their depth or distance from the coast. 

2. This sovereignty extends to the air space over the archipelagic waters, as 
well as to their bed and subsoil, and the resources contained therein. 

3. This sovereignty is exercised subject to this Part. 

4. The regime of archipelagic sea lanes passage established in this Part shall 
not in other respects affect the status of the archipelagic waters, including the 
sea lanes, or the exercise by the archipelagic State of its sovereignty over such 
waters and their air space, bed and subsoil, and the resources contained 
therein. 

Article 50 
Delimitation of internal waters 

Within its archipelagic waters, the archipelagic State may draw closing lines 
for the delimitation of internal waters, in accordance with articles 9,10 and 1 1 . 

Article 51 

Existing agreements, traditional fishing rights and existing 

submarine cables 

1. Without prejudice to article 49, an archipelagic State shall respect existing 
agreements with other States and shall recognize traditional fishing rights and 
other legitimate activities of the immediately adjacent neighbouring States in 
certain areas falling within archipelagic waters. The terms and conditions for the 
exercise of such rights and activities, including the nature, the extent and the 
areas to which they apply, shall, at the request of any of the States concerned, 
be regulated by bilateral agreements between them. Such rights shall not be 
transferred to or shared with third States or their nationals. 

2. An archipelagic State shall respect existing submarine cables laid by other 
States and passing through its waters without making a landfall. An archipelagic 
State shall permit the maintenance and replacement of such cables upon receiv- 
ing due notice of their location and the intention to repair or replace them. 

Article 52 
Right of innocent passage 

1. Subject to article 53 and without prejudice to article 50, ships of all States 
enjoy the right of innocent passage through archipelagic waters, in accordance 
with Part II, section 3. 

2. The archipelagic State may, without discrimination in form or in fact 
among foreign ships, suspend temporarily in specified areas of its archipelagic 



300 Excessive Maritime Claims 

waters the innocent passage of foreign ships if such suspension is essential for 
the protection of its security. Such suspension shall take effect only after 
having been duly published. 

Article 53 
Right of archipelagic sea lanes passage 

1. An archipelagic State may designate sea lanes and air routes thereabove, 
suitable for the continuous and expeditious passage of foreign ships and aircraft 
through or over its archipelagic waters and the adjacent territorial sea. 

2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in 
such sea lanes and air routes. 

3. Archipelagic sea lanes passage means the exercise in accordance with this 
Convention of the rights of navigation and overflight in the normal mode solely 
for the purpose of continuous, expeditious and unobstructed transit between 
one part of the high seas or an exclusive economic zone and another part of the 
high seas or an exclusive economic zone. 

4. Such sea lanes and air routes shall traverse the archipelagic waters and the 
adjacent territorial sea and shall include all normal passage routes used as routes 
for international navigation or overflight through or over archipelagic waters 
and, within such routes, so far as ships are concerned, all normal navigational 
channels, provided that duplication of routes of similar convenience between 
the same entry and exit points shall not be necessary. 

5. Such sea lanes and air routes shall be defined by a series of continuous axis 
lines from the entry points of passage routes to the exit points. Ships and air- 
craft in archipelagic sea lanes passage shall not deviate more than 25 nautical 
miles to either side of such axis lines during passage, provided that such ships 
and aircraft shall not navigate closer to the coasts than 10 per cent of the dis- 
tance between the nearest points on islands bordering the sea lane. 

6. An archipelagic State which designates sea lanes under this article may 
also prescribe traffic separation schemes for the safe passage of ships through 
narrow channels in such sea lanes. 

7. An archipelagic State may, when circumstances require, after giving due 
publicity thereto, substitute other sea lanes or traffic separation schemes for 
any sea lanes or traffic separation schemes previously designated or prescribed 
by it. 

8. Such sea lanes and traffic separation schemes shall conform to generally 
accepted international regulations. 

9. In designating or substituting sea lanes or prescribing or substituting traffic 
separation schemes, an archipelagic State shall refer proposals to the competent 
international organization with a view to their adoption. The organization may 
adopt only such sea lanes and traffic separation schemes as may be agreed with 
the archipelagic State, after which the archipelagic State may designate, pre- 
scribe or substitute them. 

10. The archipelagic State shall clearly indicate the axis of the sea lanes and 
the traffic separation schemes designated or prescribed by it on charts to which 
due publicity shall be given. 

11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes 
and traffic separation schemes established in accordance with this article. 

12. If an archipelagic State does not designate sea lanes or air routes, the 
right of archipelagic sea lanes passage may be exercised through the routes nor- 
mally used for international navigation. 



Appendices 301 

Article 54 

Duties of ships and aircraft during their passage, research 

and survey activities, duties of the archipelagic State and 

laws and regulations of the archipelagic State relating to 

archipelagic sea lanes passage 

Articles 39, 40, 42 and 44 apply mutatis mutandis to archipelagic sea lanes 
passage. 



PART V 
EXCLUSIVE ECONOMIC ZONE 



Article 55 
Specific legal regime of the exclusive economic zone 

The exclusive economic zone is an area beyond and adjacent to the territorial 
sea, subject to the specific legal regime established in this Part, under which the 
rights and jurisdiction of the coastal State and the rights and freedoms of other 
States are governed by the relevant provisions of this Convention. 

Article 56 

Rights, jurisdiction and duties of the coastal State in the 

exclusive economic zone 

1. In the exclusive economic zone, the coastal State has: 

(a) 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 sea-bed and of the sea-bed and its subsoil, and 
with regard to other activities for the economic exploitation and explora- 
tion of the zone, such as the production of energy from the water, cur- 
rents and winds; 

(b) jurisdiction as provided for in the relevant provisions of this Convention 
with regard to: 

(i) the establishment and use of artificial islands, installations and struc- 
tures; 
(ii) marine scientific research; 
(iii) the protection and preservation of the marine environment; 

(c) other rights and duties provided for in this Convention. 

2. In exercising its rights and performing its duties under this Convention in 
the exclusive economic zone, the coastal State shall have due regard to the 
rights and duties of other States and shall act in a manner compatible with the 
provisions of this Convention. 

3. The rights set out in this article with respect to the sea-bed and subsoil 
shall be exercised in accordance with Part VI. 

Article 57 
Breadth of the exclusive economic zone 

The exclusive economic zone shall not extend beyond 200 nautical miles 
from the baselines from which the breadth of the territorial sea is measured. 



302 Excessive Maritime Claims 

Article 58 

Rights and duties of other States 

in the exclusive economic zone 

1. In the exclusive economic zone, all States, whether coastal or land-locked, 
enjoy, subject to the relevant provisions of this Convention, the freedoms 
referred to in article 87 of navigation and overflight and of the laying of sub- 
marine cables and pipelines, and 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 the other pro- 
visions of this Convention. 

2. Articles 88 to 115 and other pertinent rules of international law apply to 
the exclusive economic zone in so far as they are not incompatible with this 
Part. 

3. In exercising their rights and performing their duties under this Conven- 
tion in the exclusive economic zone, States shall have due regard to the rights 
and duties of the coastal State and shall comply with the laws and regulations 
adopted by the coastal State in accordance with the provisions of this Conven- 
tion and other rules of international law in so far as they are not incompatible 
with this Part. 

Article 59 

Basis for the resolution of conflicts regarding the 

attribution of rights and jurisdiction in the exclusive 

economic zone 

In cases where this Convention does not attribute rights or jurisdiction to the 
coastal State or to other States within the exclusive economic zone, and a con- 
flict arises between the interests of the coastal State and any other State or 
States, the conflict should be resolved on the basis of equity and in the light of 
all the relevant circumstances, taking into account the respective importance of 
the interests involved to the parties as well as to the international community as 
a whole. 

Article 60 

Artificial islands, installations and structures in the 

exclusive economic zone 

1. In the exclusive economic zone, the coastal State shall have the exclusive 
right to construct and to authorize and regulate the construction, operation and 
use of: 

(a) artificial islands; 

(b) installations and structures for the purposes provided for in article 56 
and other economic purposes; 

(c) installations and structures which may interfere with the exercise of the 
rights of the coastal State in the zone. 

2. The coastal State shall have exclusive jurisdiction over such artificial is- 
lands, installations and structures, including jurisdiction with regard to customs, 
fiscal, health, safety and immigration laws and regulations. 

3. Due notice must be given of the construction of such artificial islands, in- 
stallations or structures, and permanent means for giving warning of their pres- 
ence must be maintained. Any installations or structures which are abandoned 
or disused shall be removed to ensure safety of navigation, taking into account 
any generally accepted international standards established in this regard by the 
competent international organization. Such removal shall also have due regard 



Appendices 303 

to fishing, the protection of the marine environment and the rights and duties 
of other States. Appropriate publicity shall be given to the depth, position and 
dimensions of any installations or structures not entirely removed. 

4. The coastal State may, where necessary, establish reasonable safety zones 
around such artificial islands, installations and structures in which it may take 
appropriate measures to ensure the safety both of navigation and of the artificial 
islands, installations and structures. 

5. The breadth of the safety zones shall be determined by the coastal State, 
taking into account applicable international standards. Such zones shall be de- 
signed to ensure that they are reasonably related to the nature and function of 
the artificial islands, installations or structures, and shall not exceed a distance 
of 500 metres around them, measured from each point of their outer edge, 
except as authorized by generally accepted international standards or as recom- 
mended by the competent international organization. Due notice shall be 
given of the extent of safety zones. 

6. All ships must respect these safety zones and shall comply with generally 
accepted international standards regarding navigation in the vicinity of artificial 
islands, installations, structures and safety zones. 

7. Artificial islands, installations and structures and the safety zones around 
them may not be established where interference may be caused to the use of 
recognized sea lanes essential to international navigation. 

8. Artificial islands, installations and structures do not possess the status of 
islands. They have no 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. 

Article 61 
Conservation of the living resources 

1. The coastal State shall determine the allowable catch of the living 
resources in its exclusive economic zone. 

2. The coastal State, taking into account the best scientific evidence available 
to it, shall ensure through proper conservation and management measures that 
the maintenance of the living resources in the exclusive economic zone is not 
endangered by over-exploitation. As appropriate, the coastal State and compe- 
tent international organizations, whether subregional, regional or global, shall 
co-operate to this end. 

3. Such measures shall also be designed to maintain or restore populations of 
harvested species at levels which can produce the maximum sustainable yield, 
as qualified by relevant environmental and economic factors, including the 
economic needs of coastal fishing communities and the special requirements of 
developing States, and taking into account fishing patterns, the interdependence 
of stocks and any generally recommended international minimum standards, 
whether subregional, regional or global. 

4. In taking such measures the coastal State shall take into consideration the 
effects on species associated with or dependent upon harvested species with a 
view to maintaining or restoring populations of such associated or dependent 
species above levels at which their reproduction may become seriously 
threatened. 

5. Available scientific information, catch and fishing effort statistics, and 
other data relevant to the conservation of fish stocks shall be contributed and 
exchanged on a regular basis through competent international organizations, 
whether subregional, regional or global, where appropriate and with participa- 



304 Excessive Maritime Claims 

tion by all States concerned, including States whose nationals are allowed to 
fish in the exclusive economic zone. 

Article 62 
Utilization of the living resources 

1. The coastal State shall promote the objective of optimum utilization of the 
living resources in the exclusive economic zone without prejudice to article 61. 

2. The coastal State shall determine its capacity to harvest the living 
resources of the exclusive economic zone. Where the coastal State does not 
have the capacity to harvest the entire allowable catch, it shall, through agree- 
ments or other arrangements and pursuant to the terms, conditions, laws and 
regulations referred to in paragraph 4, give other States access to the surplus of 
the allowable catch, having particular regard to the provisions of articles 69 and 
70, especially in relation to the developing States mentioned therein. 

3. In giving access to other States to its exclusive economic zone under this 
article, the coastal State shall take into account all relevant factors, including, 
inter alia, the significance of the living resources of the area to the economy of 
the coastal State concerned and its other national interests, the provisions of 
articles 69 and 70, the requirements of developing States in the subregion or 
region in harvesting part of the surplus and the need to minimize economic dis- 
location in States whose nationals have habitually fished in the zone or which 
have made substantial efforts in research and identification of stocks. 

4. Nationals of other States fishing in the exclusive economic zone shall comply 
with the conservation measures and with the other terms and conditions estab- 
lished in the laws and regulations of the coastal State. These laws and regulations 
shall be consistent with this Convention and may relate, inter alia, to the following: 

(a) licensing of fishermen, fishing vessels and equipment, including payment 
of fees and other forms of remuneration, which, in the case of developing 
coastal States, may consist of adequate compensation in the field of financ- 
ing, equipment and technology relating to the fishing industry; 

(b) determining the species which may be caught, and fixing quotas of catch, 
whether in relation to particular stocks or groups of stocks or catch per 
vessel over a period of time or to the catch by nationals of any State 
during a specified period; 

(c) regulating seasons and areas of fishing, the types, sizes and amount of 
gear, and the types, sizes and number of fishing vessels that may be used; 

(d) fixing the age and size of fish and other species that may be caught; 

(e) specifying information required of fishing vessels, including catch and 
effort statistics and vessel position reports; 

(f) requiring, under the authorization and control of the coastal State, the 
conduct of specified fisheries research programmes and regulating the 
conduct of such research, including the sampling of catches, disposition 
of samples and reporting of associated scientific data; 

(g) the placing of observers or trainees on board such vessels by the coastal 
State; 

(h) the landing of all or any part of the catch by such vessels in the ports of 

the coastal State; 
(i) terms and conditions relating to joint ventures or other co-operative 

arrangements; 
(j) requirements for the training of personnel and the transfer of fisheries 

technology, including enhancement of the coastal State's capability of 

undertaking fisheries research; 



Appendices 305 

(k) enforcement procedures. 

5. Coastal States shall give due notice of conservation and management laws 
and regulations. 

Article 63 

Stocks occurring within the exclusive economic zones of two 

or more coastal States or both within the exclusive economic 

zone and in an area beyond and adjacent to it 

1. Where the same stock or stocks of associated species occur within the ex- 
clusive economic zones of two or more coastal States, these States shall seek, 
either directly or through appropriate subregional or regional organizations, to 
agree upon the measures necessary to co-ordinate and ensure the conservation 
and development of such stocks without prejudice to the other provisions of 
this Part. 

2. Where the same stock or stocks of associated species occur both within 
the exclusive economic zone and in an area beyond and adjacent to the zone, 
the coastal State and the States fishing for such stocks in the adjacent area shall 
seek, either directly or through appropriate subregional or regional organiza- 
tions, to agree upon the measures necessary for the conservation of these 
stocks in the adjacent area. 

Article 64 
Highly migratory species 

1. The coastal State and other States whose nationals fish in the region for 
the highly migratory species listed in Annex I shall co-operate directly or 
through appropriate international organizations with a view to ensuring conser- 
vation and promoting the objective of optimum utilization of such species 
throughout the region, both within and beyond the exclusive economic zone. 
In regions for which no appropriate international organization exists, the coastal 
State and other States whose nationals harvest these species in the region shall 
co-operate to establish such an organization and participate in its work. 

2. The provisions of paragraph 1 apply in addition to the other provisions of 
this Part. 

Article 65 
Marine mammals 

Nothing in this Part restricts the right of a coastal State or the competence of 
an international organization, as appropriate, to prohibit, limit or regulate the 
exploitation of marine mammals more strictly than provided for in this Part. 
States shall co-operate with a view to the conservation of marine mammals and 
in the case of cetaceans shall in particular work through the appropriate interna- 
tional organizations for their conservation, management and study. 

Article 66 
Anadromous stocks 

1. States in whose rivers anadromous stocks originate shall have the primary 
interest in and responsibility for such stocks. 

2. The State of origin of anadromous stocks shall ensure their conservation 
by the establishment of appropriate regulatory measures for fishing in all waters 
landward of the outer limits of its exclusive economic zone and for fishing 
provided for in paragraph 3(b). The State of origin may, after consultations 



306 Excessive Maritime Claims 

with the other States referred to in paragraphs 3 and 4 fishing these stocks, es- 
tablish total allowable catches for stocks originating in its rivers. 

3. (a) Fisheries for anadromous stocks shall be conducted only in waters 
landward of the outer limits of exclusive economic zones, except in 
cases where this provision would result in economic dislocation for a 
State other than the State of origin. With respect to such fishing beyond 
the outer limits of the exclusive economic zone, States concerned shall 
maintain consultations with a view to achieving agreement on terms and 
conditions of such fishing giving due regard to the conservation require- 
ments and the needs of the State of origin in respect of these stocks. 

(b) The State of origin shall co-operate in minimizing economic dislocation 
in such other States fishing these stocks, taking into account the normal 
catch and the mode of operations of such States, and all the areas in 
which such fishing has occurred. 

(c) States referred to in subparagraph (b), participating by agreement with 
the State of origin in measures to renew anadromous stocks, particularly 
by expenditures for that purpose, shall be given special consideration by 
the State of origin in the harvesting of stocks originating in its rivers. 

(d) Enforcement of regulations regarding anadromous stocks beyond the ex- 
clusive economic zone shall be by agreement between the State of origin 
and the other States concerned. 

4. In cases where anadromous stocks migrate into or through the waters 
landward of the outer limits of the exclusive economic zone of a State other 
than the State of origin, such State shall co-operate with the State of origin with 
regard to the conservation and management of such stocks. 

5. The State of origin of anadromous stocks and other States fishing these 
stocks shall make arrangements for the implementation of the provisions of 
this article, where appropriate, through regional organizations. 



Article 67 
Catadromous species 

1. A coastal State in whose waters catadromous species spend the greater 
part of their life cycle shall have responsibility for the management of these spe- 
cies and shall ensure the ingress and egress of migrating fish. 

2. Harvesting of catadromous species shall be conducted only in waters land- 
ward of the outer limits of exclusive economic zones. When conducted in exclu- 
sive economic zones, harvesting shall be subject to this article and the other 
provisions of this Convention concerning fishing in these zones. 

3. In cases where catadromous fish migrate through the exclusive economic 
zone of another State, whether as juvenile or maturing fish, the management, 
including harvesting, of such fish shall be regulated by agreement between the 
State mentioned in paragraph 1 and the other State concerned. Such agreement 
shall ensure the rational management of the species and take into account the 
responsibilities of the State mentioned in paragraph 1 for the maintenance of 
these species. 



Article 68 
Sedentary species 

This Part does not apply to sedentary species as defined in article 77, para- 
graph 4. 



Appendices 307 

Article 69 
Right of land-locked States 

1. Land-locked States shall have the right to participate, on an equitable 
basis, in the exploitation of an appropriate part of the surplus of the living 
resources of the exclusive economic zones of coastal States of the same sub- 
region or region, taking into account the relevant economic and geographical 
circumstances of all the States concerned and in conformity with the provisions 
of this article and of articles 61 and 62. 

2. The terms and modalities of such participation shall be established by the 
States concerned through bilateral, subregional or regional agreements taking 
into account, inter alia: 

(a) the need to avoid effects detrimental to fishing communities or fishing 
industries of the coastal State; 

(b) the extent to which the land-locked State, in accordance with the provi- 
sions of this article, is participating or is entitled to participate under ex- 
isting bilateral, subregional or regional agreements in the exploitation of 
living resources of the exclusive economic zones of other coastal States; 

(c) the extent to which other land-locked States and geographically disad- 
vantaged States are participating in the exploitation of the living 
resources of the exclusive economic zone of the coastal State and the 
consequent need to avoid a particular burden for any single coastal State 
or a part of it; 

(d) the nutritional needs of the populations of the respective States. 

3. When the harvesting capacity of a coastal State approaches a point which 
would enable it to harvest the entire allowable catch of the living resources in 
its exclusive economic zone, the coastal State and other States concerned shall 
co-operate in the establishment of equitable arrangements on a bilateral, sub- 
regional or regional basis to allow for participation of developing land-locked 
States of the same subregion or region in the exploitation of the living 
resources of the exclusive economic zones of coastal States of the subregion or 
region, as may be appropriate in the circumstances and on terms satisfactory to 
all parties. In the implementation of this provision the factors mentioned in 
paragraph 2 shall also be taken into account. 

4. Developed land-locked States shall, under the provisions of this article, be 
entitled to participate in the exploitation of living resources only in the exclu- 
sive economic zones of developed coastal States of the same subregion or 
region having regard to the extent to which the coastal State, in giving access to 
other States to the living resources of its exclusive economic zone, has taken 
into account the need to minimize detrimental effects on fishing communities 
and economic dislocation in States whose nationals have habitually fished in the 
zone. 

5. The above provisions are without prejudice to arrangements agreed upon 
in subregions or regions where the coastal States may grant to land-locked 
States of the same subregion or region equal or preferential rights for the exploi- 
tation of the living resources in the exclusive economic zones. 

Article 70 
Right of geographically disadvantaged States 

1. Geographically disadvantaged States shall have the right to participate, on 
an equitable basis, in the exploitation of an appropriate part of the surplus of the 
living resources of the exclusive economic zones of coastal States of the same 
subregion or region, taking into account the relevant economic and geographi- 



308 Excessive Maritime Claims 

cal circumstances of all the States concerned and in conformity with the provi- 
sions of this article and of articles 61 and 62. 

2. For the purposes of this Part, "geographically disadvantaged States" 
means coastal States, including States bordering enclosed or semi-enclosed 
seas, whose geographical situation makes them dependent upon the exploita- 
tion of the living resources of the exclusive economic zones of other States in 
the subregion or region for adequate supplies offish for the nutritional purposes 
of their populations or parts thereof, and coastal States which can claim no ex- 
clusive economic zones of their own. 

3. The terms and modalities of such participation shall be established by the 
States concerned through bilateral, subregional or regional agreements taking 
into account, inter alia: 

(a) the need to avoid effects detrimental to fishing communities or fishing 
industries of the coastal State; 

(b) the extent to which the geographically disadvantaged State, in accor- 
dance with the provisions of this article, is participating or is entitled to 
participate under existing bilateral, subregional or regional agreements 
in the exploitation of living resources of the exclusive economic zones 
of other coastal States; 

(c) the extent to which other geographically disadvantaged States and land- 
locked States are participating in the exploitation of the living resources of 
the exclusive economic zone of the coastal State and the consequent need 
to avoid a particular burden for any single coastal State or a part of it; 

(d) the nutritional needs of the populations of the respective States. 

4. When the harvesting capacity of a coastal State approaches a point which 
would enable it to harvest the entire allowable catch of the living resources in 
its exclusive economic zone, the coastal State and other States concerned shall 
co-operate in the establishment of equitable arrangements on a bilateral, sub- 
regional or regional basis to allow for participation of developing geographically 
disadvantaged States of the same subregion or region in the exploitation of the 
living resources of the exclusive economic zones of coastal States of the sub- 
region or region, as may be appropriate in the circumstances and on terms satis- 
factory to all parties. In the implementation of this provision the factors men- 
tioned in paragraph 3 shall also be taken into account. 

5. Developed geographically disadvantaged States shall, under the provisions 
of this article, be entitled to participate in the exploitation of living resources 
only in the exclusive economic zones of developed coastal States of the same 
subregion or region having regard to the extent to which the coastal State, in 
giving access to other States to the living resources of its exclusive economic 
zone, has taken into account the need to minimize detrimental effects on fish- 
ing communities and economic dislocation in States whose nationals have 
habitually fished in the zone. 

6. The above provisions are without prejudice to arrangements agreed upon in 
subregions or regions where the coastal States may grant to geographically disad- 
vantaged States of the same subregion or region equal or preferential rights for the 
exploitation of the living resources in the exclusive economic zones. 

Article 71 
Non-applicability of articles 69 and 70 

The provisions of articles 69 and 70 do not apply in the case of a coastal State 
whose economy is overwhelmingly dependent on the exploitation of the living 
resources of its exclusive economic zone. 



Appendices 309 

Article 72 
Restrictions on transfer of rights 

1. Rights provided under articles 69 and 70 to exploit living resources shall 
not be directly or indirectly transferred to third States or their nationals by lease 
or licence, by establishing joint ventures or in any other manner which has the 
effect of such transfer unless otherwise agreed by the States concerned. 

2. The foregoing provision does not preclude the States concerned from ob- 
taining technical or financial assistance from third States or international organi- 
zations in order to facilitate the exercise of the rights pursuant to articles 69 and 
70, provided that it does not have the effect referred to in paragraph 1. 

Article 73 
Enforcement of laws and regulations of the coastal State 

1. The coastal State may, in the exercise of its sovereign rights to explore, ex- 
ploit, conserve and manage the living resources in the exclusive economic 
zone, take such measures, including boarding, inspection, arrest and judicial 
proceedings, as may be necessary to ensure compliance with the laws and regu- 
lations adopted by it in conformity with this Convention. 

2. Arrested vessels and their crews shall be promptly released upon the post- 
ing of reasonable bond or other security. 

3. Coastal State penalties for violations of fisheries laws and regulations in 
the exclusive economic zone may not include imprisonment, in the absence of 
agreements to the contrary by the States concerned, or any other form of corpo- 
ral punishment. 

4. In cases of arrest or detention of foreign vessels the coastal State shall 
promptly notify the flag State, through appropriate channels, of the action taken 
and of any penalties subsequently imposed. 

Article 74 

Delimitation of the exclusive economic zone between States 

with opposite or adjacent coasts 

1. The delimitation of the exclusive economic zone between States with 
opposite or adjacent coasts shall be effected by agreement on the basis of inter- 
national law, as referred to in Article 38 of the Statute of the International 
Court of Justice, in order to achieve an equitable solution. 

2. If no agreement can be reached within a reasonable period of time, the 
States concerned shall resort to the procedures provided for in Part XV. 

3. Pending agreement as provided for in paragraph 1, the States concerned, 
in a spirit of understanding and co-operation, shall make every effort to enter 
into provisional arrangements of a practical nature and, during this transitional 
period, not to jeopardize or hamper the reaching of the final agreement. Such 
arrangements shall be without prejudice to the final delimitation. 

4. Where there is an agreement in force between the States concerned, ques- 
tions relating to the delimitation of the exclusive economic zone shall be deter- 
mined in accordance with the provisions of that agreement. 

Article 75 
Charts and lists of geographical co-ordinates 

1. Subject to this Part, the outer limit lines of the exclusive economic zone 
and the lines of delimitation drawn in accordance with article 74 shall be shown 
on charts of a scale or scales adequate for ascertaining their position. Where 



310 Excessive Maritime Claims 

appropriate, lists of geographical co-ordinates 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. 



PART VI 
CONTINENTAL SHELF 



Article 76 
Definition of the continental shelf 

1. The continental shelf of a coastal State comprises the sea-bed and subsoil 
of the submarine areas that extend beyond its territorial sea throughout the 
natural prolongation of its land territory to the outer edge of the continental 
margin, or to a distance of 200 nautical miles from the baselines from which the 
breadth of the territorial sea is measured where the outer edge of the continen- 
tal margin does not extend up to that distance. 

2. The continental shelf of a coastal State shall not extend beyond the limits 
provided for in paragraphs 4 to 6. 

3. 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. 

4. (a) For the purposes of this Convention, the coastal State shall establish 
the outer edge of the continental margin wherever the margin extends 
beyond 200 nautical miles from the baselines from which the breadth of 
the territorial sea is measured, by either: 

(i) a line delineated in accordance with paragraph 7 by reference to the 
outermost fixed points at each of which the thickness of sedimen- 
tary rocks is at least 1 per cent of the shortest distance from such 
point to the foot of the continental slope; or 
(ii) a line delineated in accordance with paragraph 7 by reference to 
fixed points not more than 60 nautical miles from the foot of the 
continental slope, 
(b) In the absence of evidence to the contrary, the foot of the continental 
slope shall be determined as the point of maximum change in the gra- 
dient at its base. 

5. The fixed points comprising the line of the outer limits of the continental 
shelf on the sea-bed, drawn in accordance with paragraph 4 (a)(i) and (ii), 
either shall not exceed 350 nautical miles from the baselines from which the 
breadth of the territorial sea is measured or shall not exceed 100 nautical miles 
from the 2,500 metre isobath, which is a line connecting the depth of 2,500 
metres. 

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the 
outer limit of the continental shelf shall not exceed 350 nautical miles from the 
baselines from which the breadth of the territorial sea is measured. This para- 
graph does not apply to submarine elevations that are natural components of 
the continental margin, such as its plateaux, rises, caps, banks and spurs. 



Appendices 31 1 

7. The coastal State shall delineate the outer limits of its continental shelf, 
where that shelf extends beyond 200 nautical miles from the baselines from 
which the breadth of the territorial sea is measured, by straight lines not ex- 
ceeding 60 nautical miles in length, connecting fixed points, defined by co- 
ordinates of latitude and longitude. 

8. Information on the limits of the continental shelf beyond 200 nautical 
miles from the baselines from which the breadth of the territorial sea is mea- 
sured shall be submitted by the coastal State to the Commission on the Limits 
of the Continental Shelf set up under Annex II on the basis of equitable 
geographical representation. The Commission shall make recommendations to 
coastal States on matters related to the establishment of the outer limits of their 
continental shelf. The limits of the shelf established by a coastal State on the 
basis of these recommendations shall be final and binding. 

9. The coastal State shall deposit with the Secretary-General of the United 
Nations charts and relevant information, including geodetic data, permanently 
describing the outer limits of its continental shelf. The Secretary-General shall 
give due publicity thereto. 

10. The provisions of this article are without prejudice to the question of 
delimitation of the continental shelf between States with opposite or adjacent 
coasts. 

Article 77 
Rights of the coastal State over the 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 rights referred to in paragraph 1 are exclusive in the sense that if the 
coastal State does not explore the continental shelf or exploit its natural 
resources, no one may undertake these activities without the express consent 
of the coastal State. 

3. The rights of the coastal State over the continental shelf do not depend on 
occupation, effective or notional, or on any express proclamation. 

4. The natural resources referred to in this Part consist of the mineral and 
other non-living resources of the sea-bed and subsoil together with living organ- 
isms belonging to sedentary species, that is to say, organisms which, at the har- 
vestable stage, either are immobile on or under the sea-bed or are unable to 
move except in constant physical contact with the sea-bed or the subsoil. 

Article 78 

Legal status of the superjacent waters and air space and the 

rights and freedoms of other States 

1. The rights of the coastal State over the continental shelf do not affect the 
legal status of the superjacent waters or of the air space above those waters. 

2. The exercise of the rights of the coastal State over the continental shelf 
must not infringe or result in any unjustifiable interference with navigation and 
other rights and freedoms of other States as provided for in this Convention. 

Article 79 
Submarine cables and pipelines on the continental shelf 

1. All States are entitled to lay submarine cables and pipelines on the conti- 
nental shelf, in accordance with the provisions of this article. 

2. Subject to its right to take reasonable measures for the exploration of the 
continental shelf, the exploitation of its natural resources and the prevention, 



312 Excessive Maritime Claims 

reduction and control of pollution from pipelines, the coastal State may not 
impede the laying or maintenance of such cables or pipelines. 

3. The delineation of the course for the laying of such pipelines on the conti- 
nental shelf is subject to the consent of the coastal State. 

4. Nothing in this Part affects the right of the coastal State to establish condi- 
tions for cables or pipelines entering its territory or territorial sea, or its jurisdic- 
tion over cables and pipelines constructed or used in connection with the explo- 
ration of its continental shelf or exploitation of its resources or the operations of 
artificial islands, installations and structures under its jurisdiction. 

5. When laying submarine cables or pipelines, States shall have due regard to 
cables or pipelines already in position. In particular, possibilities of repairing ex- 
isting cables or pipelines shall not be prejudiced. 

Article 80 

Artificial islands, installations and structures 

on the continental shelf 

Article 60 applies mutatis mutandis to artificial islands, installations and struc- 
tures on the continental shelf. 

Article 81 
Drilling on the continental shelf 

The coastal State shall have the exclusive right to authorize and regulate drill- 
ing on the continental shelf for all purposes. 

Article 82 

Payments and contributions with respect to the exploitation 

of the continental shelf beyond 200 nautical miles 

1. The coastal State shall make payments or contributions in kind in respect 
of the exploitation of the non-living resources of the continental shelf beyond 
200 nautical miles from the baselines from which the breadth of the territorial 
sea is measured. 

2. The payments and contributions shall be made annually with respect to all 
production at a site after the first five years of production at that site. For the 
sixth year, the rate of payment or contribution shall be 1 per cent of the value 
or volume of production at the site. The rate shall increase by 1 per cent for 
each subsequent year until the twelfth year and shall remain at 7 per cent there- 
after. Production does not include resources used in connection with 
exploitation. 

3. A developing State which is a net importer of a mineral resource produced 
from its continental shelf is exempt from making such payments or contribu- 
tions in respect of that mineral resource. 

4. The payments or contributions shall be made through the Authority, 
which shall distribute them to States Parties to this Convention, on the basis of 
equitable sharing criteria, taking into account the interests and needs of devel- 
oping States, particularly the least developed and the land-locked among them. 

Article 83 

Delimitation of the continental shelf between States with 

opposite or adjacent coasts 

1. The delimitation of the continental shelf between States with opposite or 
adjacent coasts shall be effected by agreement on the basis of international law, 



Appendices 313 

as referred to in Article 38 of the Statute of the International Court of Justice, 
in order to achieve an equitable solution. 

2. If no agreement can be reached within a reasonable period of time, the 
States concerned shall resort to the procedures provided for in Part XV. 

3. Pending agreement as provided for in paragraph 1, the States concerned, 
in a spirit of understanding and co-operation, shall make every effort to enter 
into provisional arrangements of a practical nature and, during this transitional 
period, not to jeopardize or hamper the reaching of the final agreement. Such 
arrangements shall be without prejudice to the final delimitation. 

4. Where there is an agreement in force between the States concerned, ques- 
tions relating to the delimitation of the continental shelf shall be determined in 
accordance with the provisions of that agreement. 

Article 84 
Charts and lists of geographical co-ordinates 

1. Subject to this Part, the outer limit lines of the continental shelf and the 
lines of delimitation drawn in accordance with article 83 shall be shown on 
charts of a scale or scales adequate for ascertaining their position. Where ap- 
propriate, lists of geographical co-ordinates 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 and, in the case of those showing the outer limit 
lines of the continental shelf, with the Secretary-General of the Authority. 

Article 85 
Tunnelling 

This Part does not prejudice the right of the coastal State to exploit the subsoil 
by means of tunnelling, irrespective of the depth of water above the subsoil. 



PART VII 

HIGH SEAS 

SECTION 1. GENERAL PROVISIONS 



Article 86 
Application of the provisions of this Part 

The provisions of this Part apply to all parts of the sea that are not included in 
the exclusive economic zone, in the territorial sea or in the internal waters of a 
State, or in the archipelagic waters of an archipelagic State. This article does not 
entail any abridgement of the freedoms enjoyed by all States in the exclusive 
economic zone in accordance with article 58. 

Article 87 
Freedom of the high seas 

1. The high seas are open to all States, whether coastal or land-locked. Free- 
dom of the high seas is exercised under the conditions laid down by this Con- 



314 Excessive Maritime Claims 

vention and by other rules of international law. It comprises, inter alia, both 
for coastal and land-locked States: 

(a) freedom of navigation; 

(b) freedom of overflight; 

(c) freedom to lay submarine cables and pipelines, subject to Part VI; 

(d) freedom to construct artificial islands and other installations permitted 
under international law, subject to Part VI; 

(e) freedom of fishing, subject to the conditions laid down in section 2; 

(f) freedom of scientific research, subject to Parts VI and XIII. 

2. These freedoms shall be exercised by all States with due regard for the 
interests of other States in their exercise of the freedom of the high seas, and 
also with due regard for the rights under this Convention with respect to activi- 
ties in the Area. 

Article 88 
Reservation of the high seas for peaceful purposes 

The high seas shall be reserved for peaceful purposes. 

Article 89 
Invalidity of claims of sovereignty over the high seas 

No State may validly purport to subject any part of the high seas to its 
sovereignty. 

Article 90 
Right of navigation 

Every State, whether coastal or land-locked, has the right to sail ships flying 
its flag on the high seas. 

Article 91 
Nationality of ships 

1. Every State shall fix the conditions for the grant of its nationality to ships, 
for the registration of ships in its territory, and for the right to fly its flag. Ships 
have the nationality of the State whose flag they are entitled to fly. There must 
exist a genuine link between the State and the ship. 

2. Every State shall issue to ships to which it has granted the right to fly its 
flag documents to that effect. 

Article 92 
Status of ships 

1. Ships shall sail under the flag of one State only and, save in exceptional 
cases expressly provided for in international treaties or in this Convention, 
shall be subject to its exclusive jurisdiction on the high seas. A ship may not 
change its flag during a voyage or while in a port of call, save in the case of a real 
transfer of ownership or change of registry. 

2. A ship which sails under the flags of two or more States, using them ac- 
cording to convenience, may not claim any of the nationalities in question with 
respect to any other State, and may be assimilated to a ship without nationality. 

Article 93 

Ships flying the flag of the United Nations, its specialized 

agencies and the International Atomic Energy Agency 

The preceding articles do not prejudice the question of ships employed on the 
official service of the United Nations, its specialized agencies or the Internation- 
al Atomic Energy Agency, flying the flag of the organization. 



Appendices 31 5 

Article 94 
Duties of the flag State 

1. Every State shall effectively exercise its jurisdiction and control in admin- 
istrative, technical and social matters over ships flying its flag. 

2. In particular every State shall: 

(a) maintain a register of ships containing the names and particulars of ships 
flying its flag, except those which are excluded from generally accepted 
international regulations on account of their small size; and 

(b) assume jurisdiction under its internal law over each ship flying its flag 
and its master, officers and crew in respect of administrative, technical 
and social matters concerning the ship. 

3. Every State shall take such measures for ships flying its flag as are neces- 
sary to ensure safety at sea with regard, inter alia, to: 

(a) the construction, equipment and seaworthiness of ships; 

(b) the manning of ships, labour conditions and the training of crews, taking 
into account the applicable international instruments; 

(c) the use of signals, the maintenance of communications and the preven- 
tion of collisions. 

4. Such measures shall include those necessary to ensure: 

(a) that each ship, before registration and thereafter at appropriate intervals, 
is surveyed by a qualified surveyor of ships, and has on board such 
charts, nautical publications and navigational equipment and instruments 
as are appropriate for the safe navigation of the ship; 

(b) that each ship is in the charge of a master and officers who possess ap- 
propriate qualifications, in particular in seamanship, navigation, com- 
munications and marine engineering, and that the crew is appropriate in 
qualification and numbers for the type, size, machinery and equipment 
of the ship; 

(c) that the master, officers and, to the extent appropriate, the crew are fully 
conversant with and required to observe the applicable international 
regulations concerning the safety of life at sea, the prevention of colli- 
sions, the prevention, reduction and control of marine pollution, and 
the maintenance of communications by radio. 

5. In taking the measures called for in paragraphs 3 and 4 each State is required 
to conform to generally accepted international regulations, procedures and prac- 
tices and to take any steps which may be necessary to secure their observance. 

6. A State which has clear grounds to believe that proper jurisdiction and con- 
trol with respect to a ship have not been exercised may report the facts to the 
flag State. Upon receiving such a report, the flag State shall investigate the 
matter and, if appropriate, take any action necessary to remedy the situation. 

7. Each State shall cause an inquiry to be held by or before a suitably qualified 
person or persons into every marine casualty or incident of navigation on the 
high seas involving a ship flying its flag and causing loss of life or serious injury 
to nationals of another State or serious damage to ships or installations of an- 
other State or to the marine environment. The flag State and the other State 
shall co-operate in the conduct of any inquiry held by that other State into any 
such marine casualty or incident of navigation. 

Article 95 
Immunity of warships on the high seas 

Warships on the high seas have complete immunity from the jurisdiction of 
any State other than the flag State. 



316 Excessive Maritime Claims 

Article 96 

Immunity of ships used only on 

government non-commercial service 

Ships owned or operated by a State and used only on government non- 
commercial service shall, on the high seas, have complete immunity from the 
jurisdiction of any State other than the flag State. 

Article 97 

Penal jurisdiction in matters of collision 

or any other incident of navigation 

1. In the event of a collision or any other incident of navigation concerning a 
ship on the high seas, involving the penal or disciplinary responsibility of the 
master or of any other person in the service of the ship, no penal or disciplinary 
proceedings may be instituted against such person except before the judicial or 
administrative authorities either of the flag State or of the State of which such 
person is a national. 

2. In disciplinary matters, the State which has issued a master's certificate or 
a certificate of competence or licence shall alone be competent, after due legal 
process, to pronounce the withdrawal of such certificates, even if the holder is 
not a national of the State which issued them. 

3. No arrest or detention of the ship, even as a measure of investigation, 
shall be ordered by any authorities other than those of the flag State. 

Article 98 
Duty to render assistance 

1. Every State shall require the master of a ship flying its flag, in so far as he 
can do so without serious danger to the ship, the crew or the passengers: 

(a) to render assistance to any person found at sea in danger of being lost; 

(b) to proceed with all possible speed to the rescue of persons in distress, if 
informed of their need of assistance, in so far as such action may reasona- 
bly be expected of him; 

(c) after a collision, to render assistance to the other ship, its crew and its 
passengers and, where possible, to inform the other ship of the name of 
his own ship, its port of registry and the nearest port at which it will call. 

2. Every coastal State shall promote the establishment, operation and main- 
tenance of an adequate and effective search and rescue service regarding safety 
on and over the sea and, where circumstances so require, by way of mutual re- 
gional arrangements co-operate with neighbouring States for this purpose. 

Article 99 
Prohibition of the transport of slaves 

Every State shall take effective measures to prevent and punish the transport 
of slaves in ships authorized to fly its flag and to prevent the unlawful use of its 
flag for that purpose. Any slave taking refuge on board any ship, whatever its 
flag, shall ipsofactobe free. 

Article 100 
Duty to co-operate in the repression of piracy 

All States shall co-operate to the fullest possible extent in the repression of 
piracy on the high seas or in any other place outside the jurisdiction of any State. 



Appendices 31 7 

Article 101 
Definition of piracy 

Piracy consists of any of the following acts: 

(a) any illegal acts of violence or detention, or any act of depredation, com- 
mitted for private ends by the crew or the passengers of a private ship or 
a private aircraft, and directed: 

(i) on the high seas, against another ship or aircraft, or against persons or 
property on board such ship or aircraft; 

(ii) against a ship, aircraft, persons or property in a place outside the juris- 
diction of any State; 

(b) any act of voluntary participation in the operation of a ship or of an air- 
craft with knowledge of facts making it a pirate ship or aircraft; 

(c) any act of inciting or of intentionally facilitating an act described in sub- 
paragraph (a) or (b). 

Article 102 

Piracy by a warship, government ship or government aircraft 

whose crew has mutinied 

The acts of piracy, as defined in article 101, committed by a warship, govern- 
ment ship or government aircraft whose crew has mutinied and taken control of 
the ship or aircraft are assimilated to acts committed by a private ship or aircraft. 

Article 103 
Definition of a pirate ship or aircraft 

A ship or aircraft is considered a pirate ship or aircraft if it is intended by the 
persons in dominant control to be used for the purpose of committing one of 
the acts referred to in article 101. The same applies if the ship or aircraft has 
been used to commit any such act, so long as it remains under the control of the 
persons guilty of that act. 

Article 104 
Retention or loss of the nationality of a pirate ship or aircraft 

A ship or aircraft may retain its nationality although it has become a pirate 
ship or aircraft. The retention or loss of nationality is determined by the law of 
the State from which such nationality was derived. 

Article 105 
Seizure of a pirate ship or aircraft 

On the high seas, or in any other place outside the jurisdiction of any State, 
every State may seize a pirate ship or aircraft, or a ship or aircraft taken by 
piracy and under the control of pirates, and arrest the persons and seize the 
property on board. The courts of the State which carried out the seizure may 
decide upon the penalties to be imposed, and may also determine the action to 
be taken with regard to the ships, aircraft or property, subject to the rights of 
third parties acting in good faith. 

Article 106 
Liability for seizure without adequate grounds 

Where the seizure of a ship or aircraft on suspicion of piracy has been effected 
without adequate grounds, the State making the seizure shall be liable to the 
State the nationality of which is possessed by the ship or aircraft for any loss or 
damage caused by the seizure. 



318 Excessive Maritime Claims 

Article 107 
Ships and aircraft which are entitled to seize on account of piracy 

A seizure on account of piracy may be carried out only by warships or military 
aircraft, or other ships or aircraft clearly marked and identifiable as being on 
government service and authorized to that effect. 

Article 108 
Illicit traffic in narcotic drugs or psychotropic substances 

1. All States shall co-operate in the suppression of illicit traffic in narcotic 
drugs and psychotropic substances engaged in by ships on the high seas contrary 
to international conventions. 

2. Any State which has reasonable grounds for believing that a ship flying its 
flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may 
request the co-operation of other States to suppress such traffic. 

Article 109 
Unauthorized broadcasting from the high seas 

1. All States shall co-operate in the suppression of unauthorized broadcasting 
from the high seas. 

2. For the purposes of this Convention, "unauthorized broadcasting" means 
the transmission of sound radio or television broadcasts from a ship or installa- 
tion on the high seas intended for reception by the general public contrary to in- 
ternational regulations, but excluding the transmission of distress calls. 

3. Any person engaged in unauthorized broadcasting may be prosecuted 
before the court of: 

(a) the flag State of the ship; 

(b) the State of registry of the installation; 

(c) the State of which the person is a national; 

(d) any State where the transmissions can be received; or 

(e) any State where authorized radio communication is suffering inter- 
ference. 

4. On the high seas, a State having jurisdiction in accordance with paragraph 
3 may, in conformity with article 110, arrest any person or ship engaged in 
unauthorized broadcasting and seize the broadcasting apparatus. 

Article 110 
Right of visit 

1. Except where acts of interference derive from powers conferred by treaty, 
a warship which encounters on the high seas a foreign ship, other than a ship en- 
titled to complete immunity in accordance with articles 95 and 96, is not justi- 
fied in boarding it unless there is reasonable ground for suspecting that: 

(a) the ship is engaged in piracy; 

(b) the ship is engaged in the slave trade; 

(c) the ship is engaged in unauthorized broadcasting and the flag State of the 
warship has jurisdiction under article 109; 

(d) the ship is without nationality; or 

(e) though flying a foreign flag or refusing to show its flag, the ship is, in 
reality, of the same nationality as the warship. 

2. In the cases provided for in paragraph 1, the warship may proceed to verify 
the ship's right to fly its flag. To this end, it may send a boat under the com- 
mand of an officer to the suspected ship. If suspicion remains after the 



Appendices 31 9 

documents have been checked, it may proceed to a further examination on 
board the ship, which must be carried out with all possible consideration. 

3. If the suspicions prove to be unfounded, and provided that the ship board- 
ed has not committed any act justifying them, it shall be compensated for any 
loss or damage that may have been sustained. 

4. These provisions apply mutatis mutandis to military aircraft. 

5. These provisions also apply to any other duly authorized ships or aircraft 
clearly marked and identifiable as being on government service. 

Article 111 
R ight of hot pursuit 

1. The hot pursuit of a foreign ship may be undertaken when the competent 
authorities of the coastal State have good reason to believe that the ship has vi- 
olated the laws and regulations of that State. Such pursuit must be commenced 
when the foreign ship or one of its boats is within the internal waters, the archi- 
pelagic waters, the territorial sea or the contiguous zone of the pursuing State, 
and may only be continued outside the territorial sea or the contiguous zone if 
the pursuit has not been interrupted. It is not necessary that, at the time when 
the foreign ship within the territorial sea or the contiguous zone receives the 
order to stop, the ship giving the order should likewise be within the territorial 
sea or the contiguous zone. If the foreign ship is within a contiguous zone, as 
defined in article 33, the pursuit may only be undertaken if there has been a vio- 
lation of the rights for the protection of which the zone was established. 

2. The right of hot pursuit shall apply mutatis mutandis to violations in the ex- 
clusive economic zone or on the continental shelf, including safety zones 
around continental shelf installations, of the laws and regulations of the coastal 
State applicable in accordance with this Convention to the exclusive economic 
zone or the continental shelf, including such safety zones. 

3. The right of hot pursuit ceases as soon as the ship pursued enters the ter- 
ritorial sea of its own State or of a third State. 

4. Hot pursuit is not deemed to have begun unless the pursuing ship has 
satisfied itself by such practicable means as may be available that the ship pur- 
sued or one of its boats or other craft working as a team and using the ship pur- 
sued as a mother ship is within the limits of the territorial sea, or, as the case 
may be, within the contiguous zone or the exclusive economic zone or above 
the continental shelf. The pursuit may only be commenced after a visual or 
auditory signal to stop has been given at a distance which enables it to be seen 
or heard by the foreign ship. 

5. The right of hot pursuit may be exercised only by warships or military air- 
craft, or other ships or aircraft clearly marked and identifiable as being on 
government service and authorized to that effect. 

6. Where hot pursuit is effected by an aircraft: 

(a) the provisions of paragraphs 1 to 4 shall apply mutatis mutandis; 

(b) the aircraft giving the order to stop must itself actively pursue the ship until 
a ship or another aircraft of the coastal State, summoned by the aircraft, ar- 
rives to take over the pursuit, unless the aircraft is itself able to arrest the 
ship. It does not suffice to justify an arrest outside the territorial sea that 
the ship was merely sighted by the aircraft as an offender or suspected 
offender, if it was not both ordered to stop and pursued by the aircraft itself 
or other aircraft or ships which continue the pursuit without interruption . 

7. The release of a ship arrested within the jurisdiction of a State and escorted 
to a port of that State for the purposes of an inquiry before the competent 



320 Excessive Maritime Claims 

authorities may not be claimed solely on the ground that the ship, in the 
course of its voyage, was escorted across a portion of the exclusive economic 
zone or the high seas, if the circumstances rendered this necessary. 

8. Where a ship has been stopped or arrested outside the territorial sea in cir- 
cumstances which do not justify the exercise of the right of hot pursuit, it shall 
be compensated for any loss or damage that may have been thereby sustained. 

Article 112 
Right to lay submarine cables and pipelines 

1. All States are entitled to lay submarine cables and pipelines on the bed of 
the high seas beyond the continental shelf. 

2. Article 79, paragraph 5, applies to such cables and pipelines. 

Article 113 
Breaking or injury of a submarine cable or pipeline 

Every State shall adopt the laws and regulations necessary to provide that the 
breaking or injury by a ship flying its flag or by a person subject to its jurisdiction of 
a submarine cable beneath the high seas done wilfully or through culpable negli- 
gence, in such a manner as to be liable to interrupt or obstruct telegraphic or 
telephonic communications, and similarly the breaking or injury of a submarine 
pipeline or high-voltage power cable, shall be a punishable offence. This provi- 
sion shall apply also to conduct calculated or likely to result in such breaking or 
injury. However, it shall not apply to any break or injury caused by persons who 
acted merely with the legitimate object of saving their lives or their ships, after 
having taken all necessary precautions to avoid such break or injury. 

Article 114 

Breaking or injury by owners of a submarine cable or 

pipeline of another submarine cable or pipeline 

Every State shall adopt the laws and regulations necessary to provide that, if per- 
sons subject to its jurisdiction who are the owners of a submarine cable or pipeline 
beneath the high seas, in laying or repairing that cable or pipeline, cause a break in 
or injury to another cable or pipeline, they shall bear the cost of the repairs. 

Article 115 

Indemnity for loss incurred in avoiding injury to a 

submarine cable or pipeline 

Every State shall adopt the laws and regulations necessary to ensure that the 
owners of ships who can prove that they have sacrificed an anchor, a net or any 
other fishing gear, in order to avoid injuring a submarine cable or pipeline, shall 
be indemnified by the owner of the cable or pipeline, provided that the owner 
of the ship has taken all reasonable precautionary measures beforehand. 



SECTION 2. CONSERVATION AND MANAGEMENT OF 
THE LIVING RESOURCES OF THE HIGH SEAS 

Article 116 
Right to fish on the high seas 

All States have the right for their nationals to engage in fishing on the high 
seas subject to: 



Appendices 321 

(a) their treaty obligations; 

(b) the rights and duties as well as the interests of coastal States provided 
for, inter alia, in article 63, paragraph 2, and articles 64 to 67; and 

(c) the provisions of this section. 

Article 117 

Duty of States to adopt with respect to their nationals measures 

for the conservation of the living resources of the high seas 

All States have the duty to take, or to co-operate with other States in taking, 
such measures for their respective nationals as may be necessary for the conser- 
vation of the living resources of the high seas. 

Article 118 
Co-operation of States in the conservation and management of 

living resources 

States shall co-operate with each other in the conservation and management 
of living resources in the areas of the high seas. States whose nationals exploit 
identical living resources, or different living resources in the same area, shall 
enter into negotiations with a view to taking the measures necessary for the con- 
servation of the living resources concerned. They shall, as appropriate, co- 
operate to establish subregional or regional fisheries organizations to this end. 

Article 119 
Conservation of the living resources of the high seas 

1. In determining the allowable catch and establishing other conservation 
measures for the living resources in the high seas, States shall: 

(a) take measures which are designed, on the best scientific evidence avail- 
able to the States concerned, to maintain or restore populations of har- 
vested species at levels which can produce the maximum sustainable 
yield, as qualified by relevant environmental and economic factors, 
including the special requirements of developing States, and taking into 
account fishing patterns, the interdependence of stocks and any generally 
recommended international minimum standards, whether subregional, 
regional or global; 

(b) take into consideration the effects on species associated with or depen- 
dent upon harvested species with a view to maintaining or restoring 
populations of such associated or dependent species above levels at 
which their reproduction may become seriously threatened. 

2. Available scientific information, catch and fishing effort statistics, and 
other data relevant to the conservation of fish stocks shall be contributed and 
exchanged on a regular basis through competent international organizations, 
whether subregional, regional or global, where appropriate and with participa- 
tion by all States concerned. 

3. States concerned shall ensure that conservation measures and their imple- 
mentation do not discriminate in form or in fact against the fishermen of any 
State. 

Article 120 
Marine mammals 

Article 65 also applies to the conservation and management of marine mam- 
mals in the high seas. 



322 Excessive Maritime Claims 

PART VIM 
REGIME OF ISLANDS 



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. 

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. 



PART IX 
ENCLOSED OR SEMI-ENCLOSED SEAS 



Article 122 
Definition 

For the purposes of this Convention, "enclosed or semi-enclosed sea" 
means a gulf, basin or sea surrounded by two or more States and connected to 
another sea or the ocean by a narrow outlet or consisting entirely or primarily of 
the territorial seas and exclusive economic zones of two or more coastal States. 

Article 123 

Co-operation of States bordering enclosed 

or semi-enclosed seas 

States bordering an enclosed or semi-enclosed sea should co-operate with 
each other in the exercise of their rights and in the performance of their duties 
under this Convention. To this end they shall endeavour, directly or through 
an appropriate regional organization: 

(a) to co-ordinate the management, conservation, exploration and exploita- 
tion of the living resources of the sea; 

(b) to co-ordinate the implementation of their rights and duties with respect 
to the protection and preservation of the marine environment; 

(c) to co-ordinate their scientific research policies and undertake where ap- 
propriate joint programmes of scientific research in the area; 

(d) to invite, as appropriate, other interested States or international organi- 
zations to co-operate with them in furtherance of the provisions of this 
article. 



Appendices 323 

PART X 

RIGHT OF ACCESS OF LAND-LOCKED STATES TO 
AND FROM THE SEA AND FREEDOM OF TRANSIT 



Article 124 
Use of terms 

1. For the purposes of this Convention: 

(a) "land-locked State" means a State which has no sea-coast; 

(b) "transit State" means a State, with or without a sea-coast, situated be- 
tween a land-locked State and the sea, through whose territory traffic in 
transit passes; 

(c) "traffic in transit" means transit of persons, baggage, goods and means 
of transport across the territory of one or more transit States, when the 
passage across such territory, with or without trans-shipment, warehous- 
ing, breaking bulk or change in the mode of transport, is only a portion 
of a complete journey which begins or terminates within the territory of 
the land-locked State; 

(d) "means of transport" means: 

(i) railway rolling stock, sea, lake and river craft and road vehicles; 
(ii) where local conditions so require, porters and pack animals. 

2. Land-locked States and transit States may, by agreement between them, 
include as means of transport pipelines and gas lines and means of transport 
other than those included in paragraph 1. 

Article 125 
Right of access to and from the sea and freedom of transit 

1. Land-locked States shall have the right of access to and from the sea for 
the purpose of exercising the rights provided for in this Convention including 
those relating to the freedom of the high seas and the common heritage of man- 
kind. To this end, land-locked States shall enjoy freedom of transit through the 
territory of transit States by all means of transport. 

2. The terms and modalities for exercising freedom of transit shall be agreed 
between the land-locked States and transit States concerned through bilateral, 
subregional or regional agreements. 

3. Transit States, in the exercise of their full sovereignty over their territory, 
shall have the right to take all measures necessary to ensure that the rights and 
facilities provided for in this Part for land-locked States shall in no way infringe 
their legitimate interests. 

Article 126 
Exclusion of application of the most-favoured-nation clause 

The provisions of this Convention, as well as special agreements relating to 
the exercise of the right of access to and from the sea, establishing rights and 
facilities on account of the special geographical position of land-locked States, 
are excluded from the application of the most-favoured-nation clause. 



324 Excessive Maritime Claims 



Article 127 
Customs duties, taxes and other charges 

1. Traffic in transit shall not be subject to any customs duties, taxes or other 
charges except charges levied for specific services rendered in connection with 
such traffic. 

2. Means of transport in transit and other facilities provided for and used by 
land-locked States shall not be subject to taxes or charges higher than those 
levied for the use of means of transport of the transit State. 

Article 128 
Free zones and other customs facilities 

For the convenience of traffic in transit, free zones or other customs facilities 
may be provided at the ports of entry and exit in the transit States, by agreement 
between those States and the land-locked States. 

Article 129 

Co-operation in the construction and 

improvement of means of transport 

Where there are no means of transport in transit States to give effect to the 
freedom of transit or where the existing means, including the port installations 
and equipment, are inadequate in any respect, the transit States and land-locked 
States concerned may co-operate in constructing or improving them. 

Article 130 

Measures to avoid or eliminate delays or other difficulties 

of a technical nature in traffic in transit 

1. Transit States shall take all appropriate measures to avoid delays or other 
difficulties of a technical nature in traffic in transit. 

2. Should such delays or difficulties occur, the competent authorities of the 
transit States and land-locked States concerned shall co-operate towards their 
expeditious elimination. 

Article 131 
Equal treatment in maritime ports 

Ships flying the flag of land-locked States shall enjoy treatment equal to that 
accorded to other foreign ships in maritime ports. 



Article 132 
Grant of greater transit facilities 

This Convention does not entail in any way the withdrawal of transit facilities 
which are greater than those provided for in this Convention and which are 
agreed between States Parties to this Convention or granted by a State Party. 
This Convention also does not preclude such grant of greater facilities in the 
future. 



Appendices 325 

PART XI 

THE AREA 

SECTION 1. GENERAL PROVISIONS 



"Omitted 



326 Excessive Maritime Claims 

PART XII 

PROTECTION AND PRESERVATION OF THE 
MARINE ENVIRONMENT 

SECTION 1. GENERAL PROVISIONS 



Article J 92 
General obligation 

States have the obligation to protect and preserve the marine environment. 

Article J 93 
Sovereign right of States to exploit their natural resources 

States have the sovereign right to exploit their natural resources pursuant to 
their environmental policies and in accordance with their duty to protect and 
preserve the marine environment. 

Article 194 

Measures to prevent, reduce and control pollution of the 

marine environment 

1. States shall take, individually or jointly as appropriate, all measures consis- 
tent with this Convention that are necessary to prevent, reduce and control pol- 
lution of the marine environment from any source, using for this purpose the 
best practicable means at their disposal and in accordance with their capabilities, 
and they shall endeavour to harmonize their policies in this connection. 

2. States shall take all measures necessary to ensure that activities under 
their jurisdiction or control are so conducted as not to cause damage by pollu- 
tion to other States and their environment, and that pollution arising from inci- 
dents or activities under their jurisdiction or control does not spread beyond 
the areas where they exercise sovereign rights in accordance with this 
Convention. 

3. The measures taken pursuant to this Part shall deal with all sources of pol- 
lution of the marine environment. These measures shall include, inter alia, 
those designed to minimize to the fullest possible extent: 

(a) the release of toxic, harmful or noxious substances, especially those 
which are persistent, from land-based sources, from or through the at- 
mosphere or by dumping; 

(b) pollution from vessels, in particular measures for preventing accidents 
and dealing with emergencies, ensuring the safety of operations at sea, 
preventing intentional and unintentional discharges, and regulating the 
design, construction, equipment, operation and manning of vessels; 

(c) pollution from installations and devices used in exploration or exploita- 
tion of the natural resources of the sea-bed and subsoil, in particular 
measures for preventing accidents and dealing with emergencies, ensur- 
ing the safety of operations at sea, and regulating the design, construc- 
tion, equipment, operation and manning of such installations or devices; 

(d) pollution from other installations and devices operating in the marine en- 
vironment, in particular measures for preventing accidents and dealing 
with emergencies, ensuring the safety of operations at sea, and regulating 



Appendices 327 

the design, construction, equipment, operation and manning of such in- 
stallations or devices. 

4. In taking measures to prevent, reduce or control pollution of the marine 
environment, States shall refrain from unjustifiable interference with activities 
carried out by other States in the exercise of their rights and in pursuance of 
their duties in conformity with this Convention. 

5. The measures taken in accordance with this Part shall include those neces- 
sary to protect and preserve rare or fragile ecosystems as well as the habitat of 
depleted, threatened or endangered species and other forms of marine life. 

Article 195 

Duty not to transfer damage or hazards or transform one type 

of pollution into another 

In taking measures to prevent, reduce and control pollution of the marine en- 
vironment, States shall act so as not to transfer, directly or indirectly, damage 
or hazards from one area to another or transform one type of pollution into 
another. 

Article 196 
Use of technologies or introduction of alien or new species 

1. States shall take all measures necessary to prevent, reduce and control pol- 
lution of the marine environment resulting from the use of technologies under 
their jurisdiction or control, or the intentional or accidental introduction of spe- 
cies, alien or new, to a particular part of the marine environment, which may 
cause significant and harmful changes thereto. 

2. This article does not affect the application of this Convention regarding 
the prevention, reduction and control of pollution of the marine environment. 



SECTION 2. GLOBAL AND REGIONAL CO-OPERATION 



Article 197 
Co-operation on a global or regional basis 

States shall co-operate on a global basis and, as appropriate, on a regional 
basis, directly or through competent international organizations, in formulating 
and elaborating international rules, standards and recommended practices and 
procedures consistent with this Convention, for the protection and preservation 
of the marine environment, taking into account characteristic regional features. 

Article 198 
Notification of imminent or actual damage 

When a State becomes aware of cases in which the marine environment is in 
imminent danger of being damaged or has been damaged by pollution, it shall 
immediately notify other States it deems likely to be affected by such damage, 
as well as the competent international organizations. 

Article 199 
Contingency plans against pollution 

In the cases referred to in article 198, States in the area affected, in accor- 
dance with their capabilities, and the competent international organizations 



328 Excessive Maritime Claims 

shall co-operate, to the extent possible, in eliminating the effects of pollution 
and preventing or minimizing the damage. To this end, States shall jointly de- 
velop and promote contingency plans for responding to pollution incidents in 
the marine environment. 

Article 200 

Studies, research programmes and exchange of 

information and data 

States shall co-operate, directly or through competent international organiza- 
tions, for the purpose of promoting studies, undertaking programmes of 
scientific research and encouraging the exchange of information and data ac- 
quired about pollution of the marine environment. They shall endeavour to 
participate actively in regional and global programmes to acquire knowledge for 
the assessment of the nature and extent of pollution, exposure to it, and its 
pathways, risks and remedies. 

Article 201 
Scientific criteria for regulations 

In the light of the information and data acquired pursuant to article 200, 
States shall co-operate, directly or through competent international organiza- 
tions, in establishing appropriate scientific criteria for the formulation and 
elaboration of rules, standards and recommended practices and procedures for 
the prevention, reduction and control of pollution of the marine environment. 



SECTION 3. TECHNICAL ASSISTANCE 



Article 202 
Scientific and technical assistance to developing States 

States shall, directly or through competent international organizations: 

(a) promote programmes of scientific, educational, technical and other assis- 
tance to developing States for the protection and preservation of the 
marine environment and the prevention, reduction and control of 
marine pollution. Such assistance shall include, inter alia: 

(i) training of their scientific and technical personnel; 

(ii) facilitating their participation in relevant international programmes; 
(iii) supplying them with necessary equipment and facilities; 
(iv) enhancing their capacity to manufacture such equipment; 

(v) advice on and developing facilities for research, monitoring, educa- 
tional and other programmes; 

(b) provide appropriate assistance, especially to developing States, for the 
minimization of the effects of major incidents which may cause serious 
pollution of the marine environment; 

(c) provide appropriate assistance, especially to developing States, concern- 
ing the preparation of environmental assessments. 

Article 203 
Preferential treatment for developing States 

Developing States shall, for the purposes of prevention, reduction and con- 
trol of pollution of the marine environment or minimization of its effects, be 
granted preference by international organizations in: 



Appendices 329 



(a) the allocation of appropriate funds and technical assistance; and 

(b) the utilization of their specialized services. 



SECTION 4. MONITORING AND ENVIRONMENTAL 

ASSESSMENT 



Article 204 
Monitoring of the risks or effects of pollution 

1. States shall, consistent with the rights of other States, endeavour, as far as 
practicable, directly or through the competent international organizations, to 
observe, measure, evaluate and analyse, by recognized scientific methods, the 
risks or effects of pollution of the marine environment. 

2. In particular, States shall keep under surveillance the effects of any activi- 
ties which they permit or in which they engage in order to determine whether 
these activities are likely to pollute the marine environment. 

Article 205 
Publication of reports 

States shall publish reports of the results obtained pursuant to article 204 or 
provide such reports at appropriate intervals to the competent international or- 
ganizations, which should make them available to all States. 

Article 206 
Assessment of potential effects of activities 

When States have reasonable grounds for believing that planned activities 
under their jurisdiction or control may cause substantial pollution of or signifi- 
cant and harmful changes to the marine environment, they shall, as far as prac- 
ticable, assess the potential effects of such activities on the marine environment 
and shall communicate reports of the results of such assessments in the manner 
provided in article 205. 



SECTION 5. INTERNATIONAL RULES AND 

NATIONAL LEGISLATION TO PREVENT, 

REDUCE AND CONTROL POLLUTION OF THE 

MARINE ENVIRONMENT 



Article 207 
Pollution from land-based sources 

1. States shall adopt laws and regulations to prevent, reduce and control pol- 
lution of the marine environment from land-based sources, including rivers, es- 
tuaries, pipelines and outfall structures, taking into account internationally 
agreed rules, standards and recommended practices and procedures. 

2. States shall take other measures as may be necessary to prevent, reduce 
and control such pollution. 

3. States shall endeavour to harmonize their policies in this connection at the 
appropriate regional level. 



330 Excessive Maritime Claims 

4. States, acting especially through competent international organizations 
or diplomatic conference, shall endeavour to establish global and regional 
rules, standards and recommended practices and procedures to prevent, 
reduce and control pollution of the marine environment from land-based 
sources, taking into account characteristic regional features, the economic 
capacity of developing States and their need for economic development. Such 
rules, standards and recommended practices and procedures shall be re- 
examined from time to time as necessary. 

5. Laws, regulations, measures, rules, standards and recommended practices 
and procedures referred to in paragraphs 1, 2 and 4 shall include those designed 
to minimize, to the fullest extent possible, the release of toxic, harmful or nox- 
ious substances, especially those which are persistent, into the marine 
environment. 

Article 208 

Pollution from sea-bed activities subject to 

national jurisdiction 

1 Coastal States shall adopt laws and regulations to prevent, reduce and con- 
trol pollution of the marine environment arising from or in connection with sea- 
bed activities subject to their jurisdiction and from artificial islands, installations 
and structures under their jurisdiction, pursuant to articles 60 and 80. 

2. States shall take other measures as may be necessary to prevent, reduce 
and control such pollution. 

3. Such laws, regulations and measures shall be no less effective than interna- 
tional rules, standards and recommended practices and procedures. 

4. States shall endeavour to harmonize their policies in this connection at the 
appropriate regional level. 

5. States, acting especially through competent international organizations or 
diplomatic conference, shall establish global and regional rules, standards and 
recommended practices and procedures to prevent, reduce and control pollu- 
tion of the marine environment referred to in paragraph 1. Such rules, standards 
and recommended practices and procedures shall be re-examined from time to 
time as necessary. 

Article 209 
Pollution from activities in the Area 

1. International rules, regulations and procedures shall be established in ac- 
cordance with Part XI to prevent, reduce and control pollution of the marine 
environment from activities in the Area. Such rules, regulations and proce- 
dures shall be re-examined from time to time as necessary. 

2. Subject to the relevant provisions of this section, States shall adopt laws 
and regulations to prevent, reduce and control pollution of the marine environ- 
ment from activities in the Area undertaken by vessels, installations, structures 
and other devices flying their flag or of their registry or operating under their 
authority, as the case may be. The requirements of such laws and regulations 
shall be no less effective than the international rules, regulations and proce- 
dures referred to in paragraph 1. 

Article 210 
Pollution by dumping 

1. States shall adopt laws and regulations to prevent, reduce and control pol- 
lution of the marine environment by dumping. 

2. States shall take other measures as may be necessary to prevent, reduce 
and control such pollution. 



Appendices 331 

3. Such laws, regulations and measures shall ensure that dumping is not car- 
ried out without the permission of the competent authorities of States. 

4. States, acting especially through competent international organizations or 
diplomatic conference, shall endeavour to establish global and regional rules, 
standards and recommended practices and procedures to prevent, reduce and 
control such pollution. Such rules, standards and recommended practices and 
procedures shall be re-examined from time to time as necessary. 

5. Dumping within the territorial sea and the exclusive economic zone or 
onto the continental shelf shall not be carried out without the express prior ap- 
proval of the coastal State, which has the right to permit, regulate and control 
such dumping after due consideration of the matter with other States which by 
reason of their geographical situation may be adversely affected thereby. 

6. National laws, regulations and measures shall be no less effective in pre- 
venting, reducing and controlling such pollution than the global rules and 
standards. 

Article 211 
Pollution from vessels 

1. States, acting through the competent international organization or general 
diplomatic conference, shall establish international rules and standards to pre- 
vent, reduce and control pollution of the marine environment from vessels and 
promote the adoption, in the same manner, wherever appropriate, of routeing 
systems designed to minimize the threat of accidents which might cause pollu- 
tion of the marine environment, including the coastline, and pollution damage 
to the related interests of coastal States. Such rules and standards shall, in the 
same manner, be re-examined from time to time as necessary. 

2. States shall adopt laws and regulations for the prevention, reduction and 
control of pollution of the marine environment from vessels flying their flag or 
of their registry. Such laws and regulations shall at least have the same effect as 
that of generally accepted international rules and standards established through 
the competent international organization or general diplomatic conference. 

3. States which establish particular requirements for the prevention, reduc- 
tion and control of pollution of the marine environment as a condition for the 
entry of foreign vessels into their ports or internal waters or for a call at their 
off-shore terminals shall give due publicity to such requirements and shall com- 
municate them to the competent international organization. Whenever such re- 
quirements are established in identical form by two or more coastal States in an 
endeavour to harmonize policy, the communication shall indicate which States 
are participating in such co-operative arrangements. Every State shall require 
the master of a vessel flying its flag or of its registry, when navigating within the 
territorial sea of a State participating in such co-operative arrangements, to fur- 
nish, upon the request of that State, information as to whether it is proceeding 
to a State of the same region participating in such co-operative arrangements 
and, if so, to indicate whether it complies with the port entry requirements of 
that State. This article is without prejudice to the continued exercise by a vessel 
of its right of innocent passage or to the application of article 25, paragraph 2. 

4. Coastal States may, in the exercise of their sovereignty within their territo- 
rial sea, adopt laws and regulations for the prevention, reduction and control of 
marine pollution from foreign vessels, including vessels exercising the right of 
innocent passage. Such laws and regulations shall, in accordance with Part II, 
section 3, not hamper innocent passage of foreign vessels. 

5. Coastal States, for the purpose of enforcement as provided for in section 
6, may in respect of their exclusive economic zones adopt laws and regulations 



332 Excessive Maritime Claims 

for the prevention, reduction and control of pollution from vessels conforming 
to and giving effect to generally accepted international rules and standards es- 
tablished through the competent international organization or general dip- 
lomatic conference. 

6. (a) Where the international rules and standards referred to in paragraph 
1 are inadequate to meet special circumstances and coastal States have 
reasonable grounds for believing that a particular, clearly defined area of 
their respective exclusive economic zones is an area where the adoption 
of special mandatory measures for the prevention of pollution from 
vessels is required for recognized technical reasons in relation to its 
oceanographical and ecological conditions, as well as its utilization or the 
protection of its resources and the particular character of its traffic, the 
coastal States, after appropriate consultations through the competent in- 
ternational organization with any other States concerned, may, for that 
area, direct a communication to that organization, submitting scientific 
and technical evidence in support and information on necessary recep- 
tion facilities. Within 12 months after receiving such a communication, 
the organization shall determine whether the conditions in that area cor- 
respond to the requirements set out above. If the organization so deter- 
mines, the coastal States may, for that area, adopt laws and regulations 
for the prevention, reduction and control of pollution from vessels im- 
plementing such international rules and standards or navigational prac- 
tices as are made applicable, through the organization, for special areas. 
These laws and regulations shall not become applicable to foreign 
vessels until 15 months after the submission of the communication to 
the organization. 

(b) The coastal States shall publish the limits of any such particular, clearly 
defined area. 

(c) If the coastal States intend to adopt additional laws and regulations for 
the same area for the prevention, reduction and control of pollution 
from vessels, they shall, when submitting the aforesaid communication, 
at the same time notify the organization thereof. Such additional laws 
and regulations may relate to discharges or navigational practices but 
shall not require foreign vessels to observe design, construction, man- 
ning or equipment standards other than generally accepted international 
rules and standards; they shall become applicable to foreign vessels 15 
months after the submission of the communication to the organization, 
provided that the organization agrees within 12 months after the submis- 
sion of the communication. 

7. The international rules and standards referred to in this article should in- 
clude inter alia those relating to prompt notification to coastal States, whose 
coastline or related interests may be affected by incidents, including maritime 
casualties, which involve discharges or probability of discharges. 



Article 212 
Pollution from or through the atmosphere 

1. States shall adopt laws and regulations to prevent, reduce and control pol- 
lution of the marine environment from or through the atmosphere, applicable 
to the air space under their sovereignty and to vessels flying their flag or vessels 
or aircraft of their registry, taking into account internationally agreed rules, 
standards and recommended practices and procedures and the safety of air 
navigation. 



Appendices 333 

2. States shall take other measures as may be necessary to prevent, reduce 
and control such pollution. 

3. States, acting especially through competent international organizations or 
diplomatic conference, shall endeavour to establish global and regional rules, 
standards and recommended practices and procedures to prevent, reduce and 
control such pollution. 



SECTION 6. ENFORCEMENT 



Article 213 
Enforcement with respect to pollution from land-based sources 

States shall enforce their laws and regulations adopted in accordance with arti- 
cle 207 and shall adopt laws and regulations and take other measures necessary 
to implement applicable international rules and standards established through 
competent international organizations or diplomatic conference to prevent, 
reduce and control pollution of the marine environment from land-based 
sources. 

Article 214 

Enforcement with respect to pollution from 

sea -bed activities 

States shall enforce their laws and regulations adopted in accordance with arti- 
cle 208 and shall adopt laws and regulations and take other measures necessary 
to implement applicable international rules and standards established through 
competent international organizations or diplomatic conference to prevent, 
reduce and control pollution of the marine environment arising from or in con- 
nection with sea-bed activities subject to their jurisdiction and from artificial is- 
lands, installations and structures under their jurisdiction, pursuant to articles 
60 and 80. 

Article 215 
Enforcement with respect to pollution from activities in the Area 

Enforcement of international rules, regulations and procedures established 
in accordance with Part XI to prevent, reduce and control pollution of the 
marine environment from activities in the Area shall be governed by that Part. 

Article 216 
Enforcement with respect to pollution by dumping 

1. Laws and regulations adopted in accordance with this Convention and ap- 
plicable international rules and standards established through competent interna- 
tional organizations or diplomatic conference for the prevention, reduction and 
control of pollution of the marine environment by dumping shall be enforced: 

(a) by the coastal State with regard to dumping within its territorial sea or its 
exclusive economic zone or onto its continental shelf; 

(b) by the flag State with regard to vessels flying its flag or vessels or aircraft 
of its registry; 

(c) by any State with regard to acts of loading of wastes or other matter oc- 
curring within its territory or at its off-shore terminals. 

2. No State shall be obliged by virtue of this article to institute proceedings 
when another State has already instituted proceedings in accordance with this 
article. 



334 Excessive Maritime Claims 

Article 217 
Enforcement by flag States 

1. States shall ensure compliance by vessels flying their flag or of their regis- 
try with applicable international rules and standards, established through the 
competent international organization or general diplomatic conference, and 
with their laws and regulations adopted in accordance with this Convention for 
the prevention, reduction and control of pollution of the marine environment 
from vessels and shall accordingly adopt laws and regulations and take other 
measures necessary for their implementation. Flag States shall provide for the 
effective enforcement of such rules, standards, laws and regulations, irrespec- 
tive of where a violation occurs. 

2. States shall, in particular, take appropriate measures in order to ensure 
that vessels flying their flag or of their registry are prohibited from sailing, until 
they can proceed to sea in compliance with the requirements of the international 
rules and standards referred to in paragraph 1, including requirements in respect 
of design, construction, equipment and manning of vessels. 

3. States shall ensure that vessels flying their flag or of their registry carry on 
board certificates required by and issued pursuant to international rules and 
standards referred to in paragraph 1. States shall ensure that vessels flying their 
flag are periodically inspected in order to verify that such certificates are in con- 
formity with the actual condition of the vessels. These certificates shall be ac- 
cepted by other States as evidence of the condition of the vessels and shall be 
regarded as having the same force as certificates issued by them, unless there 
are clear grounds for believing that the condition of the vessel does not corre- 
spond substantially with the particulars of the certificates. 

4. If a vessel commits a violation of rules and standards established through 
the competent international organization or general diplomatic conference, the 
flag State, without prejudice to articles 218, 220 and 228, shall provide for im- 
mediate investigation and where appropriate institute proceedings in respect of 
the alleged violation irrespective of where the violation occurred or where the 
pollution caused by such violation has occurred or has been spotted. 

5. Flag States conducting an investigation of the violation may request the 
assistance of any other State whose co-operation could be useful in clarifying 
the circumstances of the case. States shall endeavour to meet appropriate re- 
quests of flag States. 

6. States shall, at the written request of any State, investigate any violation al- 
leged to have been committed by vessels flying their flag. If satisfied that suffi- 
cient evidence is available to enable proceedings to be brought in respect of the 
alleged violation, flag States shall without delay institute such proceedings in ac- 
cordance with their laws. 

7. Flag States shall promptly inform the requesting State and the competent 
international organization of the action taken and its outcome. Such informa- 
tion shall be available to all States. 

8. Penalties provided for by the laws and regulations of States for vessels 
flying their flag shall be adequate in severity to discourage violations wherever 
they occur. 

Article 218 
Enforcement by port States 

1. When a vessel is voluntarily within a port or at an off-shore terminal of a 
State, that State may undertake investigations and, where the evidence so war- 
rants, institute proceedings in respect of any discharge from that vessel outside 



Appendices 335 

the internal waters, territorial sea or exclusive economic zone of that State in 
violation of applicable international rules and standards established through 
the competent international organization or general diplomatic conference. 

2. No proceedings pursuant to paragraph 1 shall be instituted in respect of a 
discharge violation in the internal waters, territorial sea or exclusive economic 
zone of another State unless requested by that State, the flag State, or a State 
damaged or threatened by the discharge violation, or unless the violation has 
caused or is likely to cause pollution in the internal waters, territorial sea or ex- 
clusive economic zone of the State instituting the proceedings. 

3. When a vessel is voluntarily within a port or at an off-shore terminal of a 
State, that State shall, as far as practicable, comply with requests from any State 
for investigation of a discharge violation referred to in paragraph 1, believed to 
have occurred in, caused, or threatened damage to the internal waters, territo- 
rial sea or exclusive economic zone of the requesting State. It shall likewise, as 
far as practicable, comply with requests from the flag State for investigation of 
such a violation, irrespective of where the violation occurred. 

4. The records of the investigation carried out by a port State pursuant to this 
article shall be transmitted upon request to the flag State or to the coastal State. 
Any proceedings instituted by the port State on the basis of such an investiga- 
tion may, subject to section 7, be suspended at the request of the coastal State 
when the violation has occurred within its internal waters, territorial sea or ex- 
clusive economic zone. The evidence and records of the case, together with 
any bond or other financial security posted with the authorities of the port 
State, shall in that event be transmitted to the coastal State. Such transmittal 
shall preclude the continuation of proceedings in the port State. 

Article 219 

Measures relating to seaworthiness of vessels to avoid 

pollution 

Subject to section 7, States which, upon request or on their own initiative, 
have ascertained that a vessel within one of their ports or at one of their off- 
shore terminals is in violation of applicable international rules and standards 
relating to seaworthiness of vessels and thereby threatens damage to the 
marine environment shall, as far as practicable, take administrative measures 
to prevent the vessel from sailing. Such States may permit the vessel to proceed 
only to the nearest appropriate repair yard and, upon removal of the causes of 
the violation, shall permit the vessel to continue immediately. 



Article 220 
Enforcement by coastal States 

1. When a vessel is voluntarily within a port or at an off-shore terminal of a 
State, that State may, subject to section 7, institute proceedings in respect of 
any violation of its laws and regulations adopted in accordance with this Con- 
vention or applicable international rules and standards for the prevention, re- 
duction and control of pollution from vessels when the violation has occurred 
within the territorial sea or the exclusive economic zone of that State. 

2. Where there are clear grounds for believing that a vessel navigating in the 
territorial sea of a State has, during its passage therein, violated laws and regula- 
tions of that State adopted in accordance with this Convention or applicable in- 
ternational rules and standards for the prevention, reduction and control of pol- 
lution from vessels, that State, without prejudice to the application of the rele- 



336 Excessive Maritime Claims 

vant provisions of Part II, section 3, may undertake physical inspection of the 
vessel relating to the violation and may, where the evidence so warrants, insti- 
tute proceedings, including detention of the vessel, in accordance with its 
laws, subject to the provisions of section 7. 

3. Where there are clear grounds for believing that a vessel navigating in the 
exclusive economic zone or the territorial sea of a State has, in the exclusive 
economic zone, committed a violation of applicable international rules and stan- 
dards for the prevention, reduction and control of pollution from vessels or 
laws and regulations of that State conforming and giving effect to such rules and 
standards, that State may require the vessel to give information regarding its 
identity and port of registry, its last and its next port of call and other relevant 
information required to establish whether a violation has occurred. 

4. States shall adopt laws and regulations and take other measures so that 
vessels flying their flag comply with requests for information pursuant to para- 
graph 3. 

5. Where there are clear grounds for believing that a vessel navigating in the 
exclusive economic zone or the territorial sea of a State has, in the exclusive 
economic zone, committed a violation referred to in paragraph 3 resulting in a 
substantial discharge causing or threatening significant pollution of the marine 
environment, that State may undertake physical inspection of the vessel for 
matters relating to the violation if the vessel has refused to give information or 
if the information supplied by the vessel is manifestly at variance with the evi- 
dent factual situation and if the circumstances of the case justify such inspection. 

6. Where there is clear objective evidence that a vessel navigating in the ex- 
clusive economic zone or the territorial sea of a State has, in the exclusive 
economic zone, committed a violation referred to in paragraph 3 resulting in a 
discharge causing major damage or threat of major damage to the coastline or 
related interests of the coastal State, or to any resources of its territorial sea or 
exclusive economic zone, that State may, subject to section 7, provided that the 
evidence so warrants, institute proceedings, including detention of the vessel, 
in accordance with its laws. 

7. Notwithstanding the provisions of paragraph 6, whenever appropriate 
procedures have been established, either through the competent international 
organization or as otherwise agreed, whereby compliance with requirements 
for bonding or other appropriate financial security has been assured, the coastal 
State if bound by such procedures shall allow the vessel to proceed. 

8. The provisions of paragraphs 3, 4, 5, 6 and 7 also apply in respect of nation- 
al laws and regulations adopted pursuant to article 211, paragraph 6. 

Article 221 
Measures to avoid pollution arising from maritime casualties 

1. Nothing in this Part shall prejudice the right of States, pursuant to interna- 
tional law, both customary and conventional, to take and enforce measures 
beyond the territorial sea proportionate to the actual or threatened damage to 
protect their coastline or related interests, including fishing, from pollution or 
threat of pollution following upon a maritime casualty or acts relating to such a 
casualty, which may reasonably be expected to result in major harmful 
consequences. 

2. For the purposes of this article, "maritime casualty'' means a collision of 
vessels, stranding or other incident of navigation, or other occurrence on board 
a vessel or external to it resulting in material damage or imminent threat of 
material damage to a vessel or cargo. 



Appendices 337 

Article 222 

Enforcement with respect to pollution from or 

through the atmosphere 

States shall enforce, within the air space under their sovereignty or with 
regard to vessels flying their flag or vessels or aircraft of their registry, their 
laws and regulations adopted in accordance with article 212, paragraph 1, and 
with other provisions of this Convention and shall adopt laws and regulations 
and take other measures necessary to implement applicable international rules 
and standards established through competent international organizations or dip- 
lomatic conference to prevent, reduce and control pollution of the marine envi- 
ronment from or through the atmosphere, in conformity with all relevant inter- 
national rules and standards concerning the safety of air navigation. 



SECTION 7. SAFEGUARDS 



Article 223 
Measures to facilitate proceedings 

In proceedings instituted pursuant to this Part, States shall take measures to 
facilitate the hearing of witnesses and the admission of evidence submitted by 
authorities of another State, or by the competent international organization, 
and shall facilitate the attendance at such proceedings of official representatives 
of the competent international organization, the flag State and any State affect- 
ed by pollution arising out of any violation. The official representatives attend- 
ing such proceedings shall have such rights and duties as may be provided 
under national laws and regulations or international law. 

Article 224 
Exercise of powers of enforcement 

The powers of enforcement against foreign vessels under this Part may only 
be exercised by officials or by warships, military aircraft, or other ships or air- 
craft clearly marked and identifiable as being on government service and au- 
thorized to that effect. 

Article 225 

Duty to avoid adverse consequences in the exercise of the 

powers of enforcement 

In the exercise under this Convention of their powers of enforcement against 
foreign vessels, States shall not endanger the safety of navigation or otherwise 
create any hazard to a vessel, or bring it to an unsafe port or anchorage, or 
expose the marine environment to an unreasonable risk. 

Article 226 
Investigation of foreign vessels 

1. (a) States shall not delay a foreign vessel longer than is essential for pur- 
poses of the investigations provided for in articles 216, 218 and 220. Any 
physical inspection of a foreign vessel shall be limited to an examination 
of such certificates, records or other documents as the vessel is required 
to carry by generally accepted international rules and standards or of any 
similar documents which it is carrying; further physical inspection of the 
vessel may be undertaken only after such an examination and only when: 



338 Excessive Maritime Claims 

(i) there are clear grounds for believing that the condition of the vessel 
or its equipment does not correspond substantially with the particulars 
of those documents; 
(ii) the contents of such documents are not sufficient to confirm or verify 

a suspected violation; or 
(iii) the vessel is not carrying valid certificates and records. 

(b) If the investigation indicates a violation of applicable laws and regulations 
or international rules and standards for the protection and preservation of 
the marine environment, release shall be made promptly subject to rea- 
sonable procedures such as bonding or other appropriate financial security. 

(c) Without prejudice to applicable international rules and standards relating 
to the seaworthiness of vessels, the release of a vessel may, whenever it 
would present an unreasonable threat of damage to the marine environ- 
ment, be refused or made conditional upon proceeding to the nearest ap- 
propriate repair yard. Where release has been refused or made condi- 
tional, the fiag State of the vessel must be promptly notified, and may 
seek release of the vessel in accordance with Part XV. 

2. States shall co-operate to develop procedures for the avoidance of unnec- 
essary physical inspection of vessels at sea. 

Article 227 
Non-discrimination with respect to foreign vessels 

In exercising their rights and performing their duties under this Part, States 
shall not discriminate in form or in fact against vessels of any other State. 

Article 228 
Suspension and restrictions on institution of proceedings 

1. Proceedings to impose penalties in respect of any violation of applicable 
laws and regulations or international rules and standards relating to the preven- 
tion, reduction and control of pollution from vessels committed by a foreign 
vessel beyond the territorial sea of the State instituting proceedings shall be sus- 
pended upon the taking of proceedings to impose penalties in respect of corre- 
sponding charges by the flag State within six months of the date on which pro- 
ceedings were first instituted, unless those proceedings relate to a case of major 
damage to the coastal State or the flag State in question has repeatedly disre- 
garded its obligation to enforce effectively the applicable international rules and 
standards in respect of violations committed by its vessels. The flag State shall 
in due course make available to the State previously instituting proceedings a 
full dossier of the case and the records of the proceedings, whenever the flag 
State has requested the suspension of proceedings in accordance with this arti- 
cle. When proceedings instituted by the flag State have been brought to a con- 
clusion, the suspended proceedings shall be terminated. Upon payment of 
costs incurred in respect of such proceedings, any bond posted or other financial 
security provided in connection with the suspended proceedings shall be re- 
leased by the coastal State. 

2. Proceedings to impose penalties on foreign vessels shall not be instituted 
after the expiry of three years from the date on which the violation was commit- 
ted, and shall not be taken by any State in the event of proceedings having been 
instituted by another State subject to the provisions set out in paragraph 1. 

3. The provisions of this article are without prejudice to the right of the flag 
State to take any measures, including proceedings to impose penalties, accord- 
ing to its laws irrespective of prior proceedings by another State. 



Appendices 339 

Article 229 
Institution of civil proceedings 

Nothing in this Convention affects the institution of civil proceedings in re- 
spect of any claim for loss or damage resulting from pollution of the marine 
environment. 

Article 230 

Monetary penalties and the observance of recognized rights 

of the accused 

1. Monetary penalties only may be imposed with respect to violations of na- 
tional laws and regulations or applicable international rules and standards for 
the prevention, reduction and control of pollution of the marine environment, 
committed by foreign vessels beyond the territorial sea. 

2. Monetary penalties only may be imposed with respect to violations of na- 
tional laws and regulations or applicable international rules and standards for 
the prevention, reduction and control of pollution of the marine environment, 
committed by foreign vessels in the territorial sea, except in the case of a wilful 
and serious act of pollution in the territorial sea. 

3. In the conduct of proceedings in respect of such violations committed by a 
foreign vessel which may result in the imposition of penalties, recognized rights 
of the accused shall be observed. 

Article 231 
Notification to the flag State and other States concerned 

States shall promptly notify the flag State and any other State concerned of 
any measures taken pursuant to section 6 against foreign vessels, and shall 
submit to the flag State all official reports concerning such measures. However, 
with respect to violations committed in the territorial sea, the foregoing obliga- 
tions of the coastal State apply only to such measures as are taken in proceed- 
ings. The diplomatic agents or consular officers and where possible the maritime 
authority of the flag State, shall be immediately informed of any such measures 
taken pursuant to section 6 against foreign vessels. 

Article 232 
Liability of States arising from enforcement measures 

States shall be liable for damage or loss attributable to them arising from mea- 
sures taken pursuant to section 6 when such measures are unlawful or exceed 
those reasonably required in the light of available information. States shall pro- 
vide for recourse in their courts for actions in respect of such damage or loss. 

Article 233 

Safeguards with respect to straits used for international 

navigation 

Nothing in sections 5, 6 and 7 affects the legal regime of straits used for inter- 
national navigation. However, if a foreign ship other than those referred to in 
section 10 has committed a violation of the laws and regulations referred to in 
article 42, paragraph 1(a) and (b), causing or threatening major damage to the 
marine environment of the straits, the States bordering the straits may take ap- 
propriate enforcement measures and if so shall respect mutatis mutandis the pro- 
visions of this section. 



340 Excessive Maritime Claims 

SECTION 8. ICE-COVERED AREAS 



Article 234 
Ice-covered areas 

Coastal States have the right to adopt and enforce non-discriminatory laws 
and regulations for the prevention, reduction and control of marine pollution 
from vessels in ice-covered areas within the limits of the exclusive economic 
zone, where particularly severe climatic conditions and the presence of ice 
covering such areas for most of the year create obstructions or exceptional 
hazards to navigation, and pollution of the marine environment could cause 
major harm to or irreversible disturbance of the ecological balance. Such laws 
and regulations shall have due regard to navigation and the protection and pre- 
servation of the marine environment based on the best available scientific 
evidence. 



SECTION 9. RESPONSIBILITY AND LIABILITY 



Article 235 
Responsibility and liability 

1. States are responsible for the fulfilment of their international obligations 
concerning the protection and preservation of the marine environment. They 
shall be liable in accordance with international law. 

2. States shall ensure that recourse is available in accordance with their legal 
systems for prompt and adequate compensation or other relief in respect of 
damage caused by pollution of the marine environment by natural or juridical 
persons under their jurisdiction. 

3. With the objective of assuring prompt and adequate compensation in re- 
spect of all damage caused by pollution of the marine environment, States shall 
co-operate in the implementation of existing international law and the further 
development of international law relating to responsibility and liability for the 
assessment of and compensation for damage and the settlement of related dis- 
putes, as well as, where appropriate, development of criteria and procedures for 
payment of adequate compensation, such as compulsory insurance or compen- 
sation funds. 

SECTION 10. SOVEREIGN IMMUNITY 



Article 236 
Sovereign immunity 

The provisions of this Convention regarding the protection and preservation 
of the marine environment do not apply to any warship, naval auxiliary, other 
vessels or aircraft owned or operated by a State and used, for the time being, 
only on government non-commercial service. However, each State shall 
ensure, by the adoption of appropriate measures not impairing operations or 
operational capabilities of such vessels or aircraft owned or operated by it, that 
such vessels or aircraft act in a manner consistent, so far as is reasonable and 
practicable, with this Convention. 



Appendices 341 



SECTION 11. OBLIGATIONS UNDER OTHER 

CONVENTIONS ON THE PROTECTION AND 

PRESERVATION OF THE MARINE ENVIRONMENT 



Article 237 

Obligations under other conventions on the protection and 

preservation of the marine environment 

1. The provisions of this Part are without prejudice to the specific obligations 
assumed by States under special conventions and agreements concluded pre- 
viously which relate to the protection and preservation of the marine environ- 
ment and to agreements which may be concluded in furtherance of the general 
principles set forth in this Convention. 

2. Specific obligations assumed by States under special conventions, with re- 
spect to the protection and preservation of the marine environment, should be 
carried out in a manner consistent with the general principles and objectives of 
this Convention. 



PART XIII 
MARINE SCIENTIFIC RESEARCH 

SECTION 1. GENERAL PROVISIONS 



Article 238 
Right to conduct marine scientific research 

All States, irrespective of their geographical location, and competent interna- 
tional organizations have the right to conduct marine scientific research subject 
to the rights and duties of other States as provided for in this Convention. 

Article 239 
Promotion of marine scientific research 

States and competent international organizations shall promote and facilitate 
the development and conduct of marine scientific research in accordance with 
this Convention. 

Article 240 

General principles for the conduct of marine scientific 

research 

In the conduct of marine scientific research the following principles shall 
apply: 

(a) marine scientific research shall be conducted exclusively for peaceful 
purposes; 

(b) marine scientific research shall be conducted with appropriate scientific 
methods and means compatible with this Convention; 

(c) marine scientific research shall not unjustifiably interfere with other le- 
gitimate uses of the sea compatible with this Convention and shall be 
duly respected in the course of such uses; 



342 Excessive Maritime Claims 

(d) marine scientific research shall be conducted in compliance with all 
relevant regulations adopted in conformity with this Convention includ- 
ing those for the protection and preservation of the marine 
environment. 

Article 241 

Non-recognition of marine scientific research activities 

as the legal basis for claims 

Marine scientific research activities shall not constitute the legal basis for any 
claim to any part of the marine environment or its resources. 



SECTION 2. INTERNATIONAL CO-OPERATION 



Article 242 
Promotion of international co-operation 

1. States and competent international organizations shall, in accordance with 
the principle of respect for sovereignty and jurisdiction and on the basis of 
mutual benefit, promote international co-operation in marine scientific research 
for peaceful purposes. 

2. In this context, without prejudice to the rights and duties of States under 
this Convention, a State, in the application of this Part, shall provide, as ap- 
propriate, other States with a reasonable opportunity to obtain from it, or with 
its co-operation, information necessary to prevent and control damage to the 
health and safety of persons and to the marine environment. 

Article 243 
Creation of favourable conditions 

States and competent international organizations shall co-operate, through 
the conclusion of bilateral and multilateral agreements, to create favourable 
conditions for the conduct of marine scientific research in the marine environ- 
ment and to integrate the efforts of scientists in studying the essence of phe- 
nomena and processes occurring in the marine environment and the interrela- 
tions between them. 



Article 244 
Publication and dissemination of information and knowledge 

1. States and competent international organizations shall, in accordance with 
this Convention, make available by publication and dissemination through ap- 
propriate channels information on proposed major programmes and their objec- 
tives as well as knowledge resulting from marine scientific research. 

2. For this purpose, States, both individually and in co-operation with other 
States and with competent international organizations, shall actively promote 
the flow of scientific data and information and the transfer of knowledge re- 
sulting from marine scientific research, especially to developing States, as well 
as the strengthening of the autonomous marine scientific research capabilities 
of developing States through, inter alia, programmes to provide adequate educa- 
tion and training of their technical and scientific personnel. 



Appendices 343 

SECTION 3. CONDUCT AND PROMOTION OF MARINE 
SCIENTIFIC RESEARCH 



Article 245 
Marine scientific research in the territorial sea 

Coastal States, in the exercise of their sovereignty, have the exclusive right 
to regulate, authorize and conduct marine scientific research in their territorial 
sea. Marine scientific research therein shall be conducted only with the express 
consent of and under the conditions set forth by the coastal State. 

Article 246 

Marine scientific research in the exclusive economic zone 

and on the continental shelf 

1. Coastal States, in the exercise of their jurisdiction, have the right to regu- 
late, authorize and conduct marine scientific research in their exclusive 
economic zone and on their continental shelf in accordance with the relevant 
provisions of this Convention. 

2. Marine scientific research in the exclusive economic zone and on the 
continental shelf shall be conducted with the consent of the coastal State. 

3. Coastal States shall, in normal circumstances, grant their consent for 
marine scientific research projects by other States or competent international 
organizations in their exclusive economic zone or on their continental shelf to 
be carried out in accordance with this Convention exclusively for peaceful pur- 
poses and in order to increase scientific knowledge of the marine environment 
for the benefit of all mankind. To this end, coastal States shall establish rules 
and procedures ensuring that such consent will not be delayed or denied 
unreasonably. 

4. For the purposes of applying paragraph 3, normal circumstances may exist 
in spite of the absence of diplomatic relations between the coastal State and the 
researching State. 

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; 

(b) involves drilling into the continental shelf, the use of explosives or the 
introduction of harmful substances into the marine environment; 

(c) involves the construction, operation or use of artificial islands, installa- 
tions and structures referred to in articles 60 and 80; 

(d) contains information communicated pursuant to article 248 regarding 
the nature and objectives of the project which is inaccurate or if the re- 
searching State or competent international organization has outstanding 
obligations to the coastal State from a prior research project. 

6. Notwithstanding the provisions of paragraph 5, coastal States may not ex- 
ercise their discretion to withhold consent under subparagraph (a) of that para- 
graph in respect of marine scientific research projects to be undertaken in accor- 
dance with the provisions of this Part on the continental shelf, beyond 200 
nautical miles from the baselines from which the breadth of the territorial sea is 
measured, outside those specific areas which coastal States may at any time pub- 



344 Excessive Maritime Claims 

licly designate as areas in which exploitation or detailed exploratory operations 
focused on those areas are occurring or will occur within a reasonable period 
of time. Coastal States shall give reasonable notice of the designation of such 
areas, as well as any modifications thereto, but shall not be obliged to give 
details of the operations therein. 

7. The provisions of paragraph 6 are without prejudice to the rights of coastal 
States over the continental shelf as established in article 77. 

8. Marine scientific research activities referred to in this article shall not un- 
justifiably interfere with activities undertaken by coastal States in the exercise 
of their sovereign rights and jurisdiction provided for in this Convention. 

Article 247 

Marine scientific research projects undertaken by or under 

the auspices of international organizations 

A coastal State which is a member of or has a bilateral agreement with an in- 
ternational organization, and in whose exclusive economic zone or on whose 
continental shelf that organization wants to carry out a marine scientific re- 
search project, directly or under its auspices, shall be deemed to have author- 
ized the project to be carried out in conformity with the agreed specifications if 
that State approved the detailed project when the decision was made by the or- 
ganization for the undertaking of the project, or is willing to participate in it, 
and has not expressed any objection within four months of notification of the 
project by the organization to the coastal State. 

Article 248 
Duty to provide information to the coastal State 

States and competent international organizations which intend to undertake 
marine scientific research in the exclusive economic zone or on the continental 
shelf of a coastal State shall, not less than six months in advance of the expected 
starting date of the marine scientific research project, provide that State with a 
full description of: 

(a) the nature and objectives of the project; 

(b) the method and means to be used, including name, tonnage, type and 
class of vessels and a description of scientific equipment; 

(c) the precise geographical areas in which the project is to be conducted; 

(d) the expected date of first appearance and final departure of the research 
vessels, or deployment of the equipment and its removal, as appropriate; 

(e) the name of the sponsoring institution, its director, and the person in 
charge of the project; and 

(f) the extent to which it is considered that the coastal State should be able 
to participate or to be represented in the project. 

Article 249 
Duty to comply with certain conditions 

1. States and competent international organizations when undertaking 
marine scientific research in the exclusive economic zone or on the continental 
shelf of a coastal State shall comply with the following conditions: 

(a) ensure the right of the coastal State, if it so desires, to participate or be 
represented in the marine scientific research project, especially on board 
research vessels and other craft or scientific research installations, when 
practicable, without payment of any remuneration to the scientists of the 



Appendices 345 

coastal State and without obligation to contribute towards the costs of 
the project; 

(b) provide the coastal State, at its request, with preliminary reports, as soon 
as practicable, and with the final results and conclusions after the com- 
pletion of the research; 

(c) undertake to provide access for the coastal State, at its request, to all 
data and samples derived from the marine scientific research project and 
likewise to furnish it with data which may be copied and samples which 
may be divided without detriment to their scientific value; 

(d) if requested, provide the coastal State with an assessment of such data, 
samples and research results or provide assistance in their assessment or 
interpretation; 

(e) ensure, subject to paragraph 2, that the research results are made inter- 
nationally available through appropriate national or international chan- 
nels, as soon as practicable; 

(f) inform the coastal State immediately of any major change in the research 
programme; 

(g) unless otherwise agreed, remove the scientific research installations or 
equipment once the research is completed. 

2. 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. 

Article 250 

Communications concerning marine scientific research 

projects 

Communications concerning the marine scientific research projects shall be 
made through appropriate official channels, unless otherwise agreed. 

Article 251 
General criteria and guidelines 

States shall seek to promote through competent international organizations 
the establishment of general criteria and guidelines to assist States in ascertain- 
ing the nature and implications of marine scientific research. 

Article 252 
Implied consent 

States or competent international organizations may proceed with a marine 
scientific research project six months after the date upon which the information 
required pursuant to article 248 was provided to the coastal State unless within 
four months of the receipt of the communication containing such information 
the coastal State has informed the State or organization conducting the research 
that: 

(a) it has withheld its consent under the provisions of article 246; or 

(b) the information given by that State or competent international organiza- 
tion regarding the nature or objectives of the project does not conform 
to the manifestly evident facts; or 

(c) it requires supplementary information relevant to conditions and the in- 
formation provided for under articles 248 and 249; or 



346 Excessive Maritime Claims 

(d) outstanding obligations exist with respect to a previous marine scientific 
research project carried out by that State or organization, with regard 
to conditions established in article 249. 

Article 253 

Suspension or cessation of marine scientific research 

activities 

1. A coastal State shall have the right to require the suspension of any marine 
scientific research activities in progress within its exclusive economic zone or 
on its continental shelf if: 

(a) the research activities are not being conducted in accordance with the in- 
formation communicated as provided under article 248 upon which the 
consent of the coastal State was based; or 

(b) the State or competent international organization conducting the re- 
search activities fails to comply with the provisions of article 249 con- 
cerning the rights of the coastal State with respect to the marine scientific 
research project. 

2. A coastal State shall have the right to require the cessation of any marine 
scientific research activities in case of any non-compliance with the provisions 
of article 248 which amounts to a major change in the research project or the re- 
search activities. 

3. A coastal State may also require cessation of marine scientific research ac- 
tivities if any of the situations contemplated in paragraph 1 are not rectified 
within a reasonable period of time. 

4. Following notification by the coastal State of its decision to order suspen- 
sion or cessation, States or competent international organizations authorized to 
conduct marine scientific research activities shall terminate the research activi- 
ties that are the subject of such a notification. 

5. An order of suspension under paragraph 1 shall be lifted by the coastal 
State and the marine scientific research activities allowed to continue once the 
researching State or competent international organization has complied with 
the conditions required under articles 248 and 249. 

Article 254 

Rights of neighbouring land-locked and geographically 

disadvantaged States 

1. States and competent international organizations which have submitted to 
a coastal State a project to undertake marine scientific research referred to in 
article 246, paragraph 3, shall give notice to the neighbouring land-locked and 
geographically disadvantaged States of the proposed research project, and shall 
notify the coastal State thereof. 

2. After the consent has been given for the proposed marine scientific re- 
search project by the coastal State concerned, in accordance with article 246 and 
other relevant provisions of this Convention, States and competent internation- 
al organizations undertaking such a project shall provide to the neighbouring 
land-locked and geographically disadvantaged States, at their request and when 
appropriate, relevant information as specified in article 248 and article 249, para- 
graph 1(f). 

3. The neighbouring land-locked and geographically disadvantaged States 
referred to above shall, at their request, be given the opportunity to participate, 
whenever feasible, in the proposed marine scientific research project through 
qualified experts appointed by them and not objected to by the coastal State, in 



Appendices 347 

accordance with the conditions agreed for the project, in conformity with the 
provisions of this Convention, between the coastal State concerned and the 
State or competent international organizations conducting the marine scientific 
research. 

4. States and competent international organizations referred to in paragraph 
1 shall provide to the above-mentioned land-locked and geographically disad- 
vantaged States, at their request, the information and assistance specified in 
article 249, paragraph 1(d), subject to the provisions of article 249, paragraph 2. 

Article 255 

Measures to facilitate marine scientific research and assist 

research vessels 

States shall endeavour to adopt reasonable rules, regulations and procedures 
to promote and facilitate marine scientific research conducted in accordance 
with this Convention beyond their territorial sea and, as appropriate, to facili- 
tate, subject to the provisions of their laws and regulations, access to their har- 
bours and promote assistance for marine scientific research vessels which 
comply with the relevant provisions of this Part. 

Article 256 
Marine scientific research in the Area 

All States, irrespective of their geographical location, and competent interna- 
tional organizations have the right, in conformity with the provisions of Part 
XI, to conduct marine scientific research in the Area. 

Article 257 

Marine scientific research in the water column beyond the 

exclusive economic zone 

All States, irrespective of their geographical location, and competent interna- 
tional organizations have the right, in conformity with this Convention, to con- 
duct marine scientific research in the water column beyond the limits of the ex- 
clusive economic zone. 



SECTION 4. SCIENTIFIC RESEARCH INSTALLATIONS 
OR EQUIPMENT IN THE MARINE ENVIRONMENT 



Article 258 
Deployment and use 

The deployment and use of any type of scientific research installations or 
equipment in any area of the marine environment shall be subject to the same 
conditions as are prescribed in this Convention for the conduct of marine 
scientific research in any such area. 

Article 259 
Legal status 

The installations or equipment referred to in this section do not possess the 
status of islands. They have no 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. 



348 Excessive Maritime Claims 

Article 260 
Safety zones 

Safety zones of a reasonable breadth not exceeding a distance of 500 metres 
may be created around scientific research installations in accordance with the 
relevant provisions of this Convention. All States shall ensure that such safety 
zones are respected by their vessels. 

Article 261 
Non-interference with shipping routes 

The deployment and use of any type of scientific research installations or 
equipment shall not constitute an obstacle to established international shipping 
routes. 

Article 262 
Identification markings and warning signals 

Installations or equipment referred to in this section shall bear identification 
markings indicating the State of registry or the international organization to 
which they belong and shall have adequate internationally agreed warning sig- 
nals to ensure safety at sea and the safety of air navigation, taking into account 
rules and standards established by competent international organizations. 



SECTION 5. RESPONSIBILITY AND LIABILITY 



Article 263 
Responsibility and liability 

1. States and competent international organizations shall be responsible for 
ensuring that marine scientific research, whether undertaken by them or on 
their behalf, is conducted in accordance with this Convention. 

2. States and competent international organizations shall be responsible and 
liable for the measures they take in contravention of this Convention in respect 
of marine scientific research conducted by other States, their natural or juridical 
persons or by competent international organizations, and shall provide compen- 
sation for damage resulting from such measures. 

3. States and competent international organizations shall be responsible and 
liable pursuant to article 235 for damage caused by pollution of the marine envi- 
ronment arising out of marine scientific research undertaken by them or on 
their behalf. 



SECTION 6. SETTLEMENT OF DISPUTES AND 
INTERIM MEASURES 



Article 264 
Settlement of disputes 

Disputes concerning the interpretation or application of the provisions of this 
Convention with regard to marine scientific research shall be settled in accor- 
dance with Part XV, sections 2 and 3. 



Appendices 349 

Article 265 
Interim measures 

Pending settlement of a dispute in accordance with Part XV, sections 2 and 3, 
the State or competent international organization authorized to conduct a 
marine scientific research project shall not allow research activities to com- 
mence or continue without the express consent of the coastal State concerned. 



PART XIV 

DEVELOPMENT AND TRANSFER OF 
MARINE TECHNOLOGY 

SECTION 1. GENERAL PROVISIONS 



Omitted" 



350 Excessive Maritime Claims 

PART XV 
SETTLEMENT OF DISPUTES 

SECTION 1. GENERAL PROVISIONS 



"Omitted 



PART XVI 
GENERAL PROVISIONS 



Article 300 
Good faith and abuse of rights 

States Parties shall fulfil in good faith the obligations assumed under this 
Convention and shall exercise the rights, jurisdiction and freedoms recognized 
in this Convention in a manner which would not constitute an abuse of right. 

Article 301 
Peaceful uses of the seas 

In exercising their rights and performing their duties under this Convention, 
States Parties shall refrain from any threat or use of force against the territorial 
integrity or political independence of any State, or in any other manner incon- 
sistent with the principles of international law embodied in the Charter of the 
United Nations. 

Article 302 
Disclosure of information 

Without prejudice to the right of a State Party to resort to the procedures for 
the settlement of disputes provided for in this Convention, nothing in this Con- 
vention shall be deemed to require a State Party, in the fulfilment of its obliga- 
tions under this Convention, to supply information the disclosure of which is 
contrary to the essential interests of its security. 



Appendices 351 

Article 303 

Archaeological and 

historical objects found at sea 

1. States have the duty to protect objects of an archaeological and historical 
nature found at sea and shall co-operate for this purpose. 

2. In order to control traffic in such objects, the coastal State may, in applying 
article 33, presume that their removal from the sea-bed in the zone referred to 
in that article without its approval would result in an infringement within its ter- 
ritory or territorial sea of the laws and regulations referred to in that article. 

3. Nothing in this article affects the rights of identifiable owners, the law of 
salvage or other rules of admiralty, or laws and practices with respect to cultural 
exchanges. 

4. This article is without prejudice to other international agreements and 
rules of international law regarding the protection of objects of an archaeological 
and historical nature. 

Article 304 
Responsibility and liability for damage 

The provisions of this Convention regarding responsibility and liability for 
damage are without prejudice to the application of existing rules and the devel- 
opment of further rules regarding responsibility and liability under international 
law. 

PART XVII 
FINAL PROVISIONS 



Article 305 
Signature 

1. This Convention shall be open for signature by: 

(a) ail States; 

(b) Namibia, represented by the United Nations Council for Namibia; 

(c) all self-governing associated States which have chosen that status in an 
act of self-determination supervised and approved by the United Nations 
in accordance with General Assembly resolution 1514 (XV) and which 
have competence over the matters governed by this Convention, includ- 
ing the competence to enter into treaties in respect of those matters; 

(d) all self-governing associated States which, in accordance with their re- 
spective instruments of association, have competence over the matters 
governed by this Convention, including the competence to enter into 
treaties in respect of those matters; 

(e) all territories which enjoy full internal self-government, recognized as 
such by the United Nations, but have not attained full independence in 
accordance with General Assembly resolution 1514 (XV) and which 
have competence over the matters governed by this Convention, includ- 
ing the competence to enter into treaties in respect of those matters; 

(f) international organizations, in accordance with Annex IX. 

2. This Convention shall remain open for signature until 9 December 1984 
at the Ministry of Foreign Affairs of Jamaica and also, from 1 July 1983 until 9 
December 1984, at United Nations Headquarters in New York. 



352 Excessive Maritime Claims 

Article 306 
Ratification and formal confirmation 

This Convention is subject to ratification by States and the other entities 
referred to in article 305, paragraph Kb), (c), (d) and (e), and to formal confir- 
mation, in accordance with Annex IX, by the entities referred to in article 305, 
paragraph 1(f). The instruments of ratification and of formal confirmation 
shall be deposited with the Secretary-General of the United Nations. 

Article 307 
Accession 

This Convention shall remain open for accession by States and the other enti- 
ties referred to in article 305. Accession by the entities referred to in article 
305, paragraph 1 (f), shall be in accordance with Annex IX. The instruments of 
accession shall be deposited with the Secretary-General of the United Nations. 

Article 308 
Entry into force 

1. This Convention shall enter into force 12 months after the date of deposit 
of the sixtieth instrument of ratification or accession. 

2. For each State ratifying or acceding to this Convention after the deposit of 
the sixtieth instrument of ratification or accession, the Convention shall enter 
into force on the thirtieth day following the deposit of its instrument of ratifica- 
tion or accession, subject to paragraph 1. 

3. The Assembly of the Authority shall meet on the date of entry into force 
of this Convention and shall elect the Council of the Authority. The first Coun- 
cil shall be constituted in a manner consistent with the purpose of article 161 if 
the provisions of that article cannot be strictly applied. 

4. The rules, regulations and procedures drafted by the Preparatory Commis- 
sion shall apply provisionally pending their formal adoption by the Authority in 
accordance with Part XI. 

5. The Authority and its organs shall act in accordance with resolution II of 
the Third United Nations Conference on the Law of the Sea relating to prepara- 
tory investment and with decisions of the Preparatory Commission taken pur- 
suant to that resolution. 

Article 309 
Reservations and exceptions 

No reservations or exceptions may be made to this Convention unless ex- 
pressly permitted by other articles of this Convention. 

Article 310 
Declarations and statements 

Article 309 does not preclude a State, when signing, ratifying or acceding to this 
Convention, from making declarations or statements, however phrased or 
named, with a view, inter alia, to the harmonization of itslawsand regulations with 
the provisions of this Convention, provided that such declarations or statements 
do not purport to exclude or to modify the legal effect of the provisions of this Con- 
vention in their application to that State. 

Article 311 
Relation to other conventions and international agreements 

1. This Convention shall prevail, as between States Parties, over the Geneva 
Conventions on the Law of the Sea of 29 April 1958. 



Appendices 353 

2. This Convention shall not alter the rights and obligations of States Parties 
which arise from other agreements compatible with this Convention and 
which do not affect the enjoyment by other States Parties of their rights or the 
performance of their obligations under this Convention. 

3. Two or more States Parties may conclude agreements modifying or sus- 
pending the operation of provisions of this Convention, applicable solely to the 
relations between them, provided that such agreements do not relate to a provi- 
sion derogation from which is incompatible with the effective execution of the 
object and purpose of this Convention, and provided further that such agree- 
ments shall not affect the application of the basic principles embodied herein, 
and that the provisions of such agreements do not affect the enjoyment by 
other States Parties of their rights or the performance of their obligations under 
this Convention. 

4. States Parties intending to conclude an agreement referred to in paragraph 
3 shall notify the other States Parties through the depositary of this Convention 
of their intention to conclude the agreement and of the modification or suspen- 
sion for which it provides. 

5. This article does not affect international agreements expressly permitted 
or preserved by other articles of this Convention. 

6. States Parties agree that there shall be no amendments to the basic princi- 
ple relating to the common heritage of mankind set forth in article 136 and that 
they shall not be party to any agreement in derogation thereof. 

Article 312 
Amendment 

1. After the expiry of a period of 10 years from the date of entry into force of 
this Convention, a State Party may, by written communication addressed to the 
Secretary-General of the United Nations, propose specific amendments to this 
Convention, other than those relating to activities in the Area, and request the 
convening of a conference to consider such proposed amendments. The 
Secretary-General shall circulate such communication to all States Parties. If, 
within 12 months from the date of the circulation of the communication, not 
less than one half of the States Parties reply favourably to the request, the 
Secretary-General shall convene the conference. 

2. The decision-making procedure applicable at the amendment conference 
shall be the same as that applicable at the Third United Nations Conference on 
the Law of the Sea unless otherwise decided by the conference. The conference 
should make every effort to reach agreement on any amendments by way of 
consensus and there should be no voting on them until all efforts at consensus 
have been exhausted. 

Article 313 
Amendment by simplified procedure 

1. A State Party may, by written communication addressed to the Secretary- 
General of the United Nations, propose an amendment to this Convention, 
other than an amendment relating to activities in the Area, to be adopted by the 
simplified procedure set forth in this article without convening a conference. 
The Secretary-General shall circulate the communication to all States Parties. 

2. If, within a period of 12 months from the date of the circulation of the 
communication, a State Party objects to the proposed amendment or to the 
proposal for its adoption by the simplified procedure, the amendment shall be 
considered rejected. The Secretary-General shall immediately notify all States 
Parties accordingly. 



354 Excessive Maritime Claims 



3. If, 12 months from the date of the circulation of the communication, no 
State Party has objected to the proposed amendment or to the proposal for its 
adoption by the simplified procedure, the proposed amendment shall be con- 
sidered adopted. The Secretary-General shall notify all States Parties that the 
proposed amendment has been adopted. 

Article 31 4 

Amendments to the provisions of this Convention relating 

exclusively to activities in the Area 

1. A State Party may, by written communication addressed to the Secretary- 
General of the Authority, propose an amendment to the provisions of this Con- 
vention relating exclusively to activities in the Area, including Annex VI, sec- 
tion 4. The Secretary-General shall circulate such communication to all States 
Parties. The proposed amendment shall be subject to approval by the Assembly 
following its approval by the Council. Representatives of States Parties in those 
organs shall have full powers to consider and approve the proposed amendment. 
The proposed amendment as approved by the Council and the Assembly shall 
be considered adopted. 

2. Before approving any amendment under paragraph 1, the Council and the 
Assembly shall ensure that it does not prejudice the system of exploration for 
and exploitation of the resources of the Area, pending the Review Conference 
in accordance with article 155. 

Article 315 

Signature, ratification of accession to 

and authentic texts of amendments 

1. Once adopted, amendments to this Convention shall be open for signature 
by States Parties for 12 months from the date of adoption, at United Nations 
Headquarters in New York, unless otherwise provided in the amendment itself. 

2. Articles 306, 307 and 320 apply to all amendments to this Convention. 

Article 316 
Entry into force of amendments 

1. Amendments to this Convention, other than those referred to in para- 
graph 5, shall enter into force for the States Parties ratifying or acceding to 
them on the thirtieth day following the deposit of instruments of ratification or 
accession by two thirds of the States Parties or by 60 States Parties, whichever is 
greater. Such amendments shall not affect the enjoyment by other States Par- 
ties of their rights or the performance of their obligations under this Conven- 
tion. 

2. An amendment may provide that a larger number of ratifications or acces- 
sions shall be required for its entry into force than are required by this article. 

3. For each State Party ratifying or acceding to an amendment referred to in 
paragraph 1 after the deposit of the required number of instruments of ratifica- 
tion or accession, the amendment shall enter into force on the thirtieth day fol- 
lowing the deposit of its instrument of ratification or accession. 

4. A State which becomes a Party to this Convention after the entry into 
force of an amendment in accordance with paragraph 1 shall, failing an expres- 
sion of a different intention by that State: 

(a) be considered as a Party to this Convention as so amended; and 

(b) be considered as a Party to the unamended Convention in relation to 
any State Party not bound by the amendment. 



Appendices 355 

5. Any amendment relating exclusively to activities in the Area and any 
amendment to Annex VI shall enter into force for all States Parties one year 
following the deposit of instruments of ratification or accession by three 
fourths of the States Parties. 

6. A State which becomes a Party to this Convention after the entry into 
force of amendments in accordance with paragraph 5 shall be considered as a 
Party to this Convention as so amended. 

Article 31 7 
Denunciation 

1. A State Party may, by written notification addressed to the Secretary- 
General of the United Nations, denounce this Convention and may indicate its 
reasons. Failure to indicate reasons shall not affect the validity of the denuncia- 
tion. The denunciation shall take effect one year after the date of receipt of the 
notification, unless the notification specifies a later date. 

2. A State shall not be discharged by reason of the denunciation from the 
financial and contractual obligations which accrued while it was a Party to this 
Convention, nor shall the denunciation affect any right, obligation or legal situ- 
ation of that State created through the execution of this Convention prior to its 
termination for that State. 

3. The denunciation shall not in any way affect the duty of any State Party to 
fulfil any obligation embodied in this Convention to which it would be subject 
under international law independently of this Convention. 

Article 318 
Status of Annexes 

The Annexes form an integral part of this Convention and, unless expressly 
provided otherwise, a reference to this Convention or to one of its Parts in- 
cludes a reference to the Annexes relating thereto. 

Article 319 
Depositary 

1. The Secretary-General of the United Nations shall be the depositary of 
this Convention and amendments thereto. 

2. In addition to his functions as depositary, the Secretary-General shall: 

(a) report to all States Parties, the Authority and competent international or- 
ganizations on issues of a general nature that have arisen with respect to 
this Convention; 

(b) notify the Authority of ratifications and formal confirmations of and ac- 
cessions to this Convention and amendments thereto, as well as of 
denunciations of this Convention; 

(c) notify States Parties of agreements in accordance with article 311, para- 
graph 4; 

(d) circulate amendments adopted in accordance with this Convention to 
States Parties for ratification or accession; 

(e) convene necessary meetings of States Parties in accordance with this 
Convention. 

3. (a) The Secretary-General shall also transmit to the observers referred 
to in article 156: 

(i) reports referred to in paragraph 2 (a) ; 
(ii) notifications referred to in paragraph 2(b) and (c); and 



356 Excessive Maritime Claims 

(iii) texts of amendments referred to in paragraph 2(d), for their informa- 
tion, 
(b) The Secretary-General shall also invite those observers to participate as 
observers at meetings of States Parties referred to in paragraph 2(e). 

Article 320 
Authentic texts 

The original of this Convention, of which the Arabic, Chinese, English, 
French, Russian and Spanish texts are equally authentic, shall, subject to article 
305, paragraph 2, be deposited with the Secretary-General of the United 
Nations. 

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, being duly au- 
thorized thereto, have signed this Convention. 

DONE AT MONTEGO BAY, this tenth day of December, one thousand 
nine hundred and eighty-two. 



Index 357 

INDEX 
A 



Acquiescence, 5, 12 

Agreement on Arctic Cooperation, 212-214 
Aircraft 
archipelagic sea lanes passage, 235-236 
Cuban Flight Information Region (FIR), 231 
military, sovereign immunity for, 263-264 
overflight restrictions: See Overflight restrictions 
transit passage of, 17-18, 177-178 
Albania 
innocent passage of warships, 155, 158 
straight baseline claims, 55 
Algeria, innocent passage of warships, 158 
Antigua & Barbuda 
archipelagic status claimed, 15 
innocent passage of warships, 158 
Archipelagic sea lanes passage, 18 
criteria for, 235-236 
excessive claims, 236-238 
Archipelagic States 
baselines, 132-138 

continental states with offshore islands, 16, 63-67 
defined, 15, 131 
excessive claims, 15-16, 134-138 

Cape Verde, 134 

Denmark, 132 

Ecuador, 132 

Philippines, 134-138 

Portugal, 132 

Sudan, 132 
island-mainland states, 132 
non-independent, 63-67 
states claiming archipelagic status 

Antigua & Barbuda, 15 

Bahamas, 132 

Cape Verde, 15 

Comoros, 15 

Fiji, 15 

Grenadines, 15 

Indonesia, 15 

Kiribati, 15 

Marshall Islands, 15 

Papua New Guinea, 15 

Philippines, 15 

Saint Vincent, 15 

Sao Tome & Principe, 15 

Solomon Islands, 15 

Trinidad & Tobago, 15 

Tuvalu, 132 

Vanuatu, 15 



358 Index 

1982 U.N. Convention on the Law of the Sea, 15-16 

United States protests, 16 
Archipelagos: See Archipelagic States 
Arctic 

Agreement on Arctic Cooperation, 212-214 

islands, Canadian, straight baseline claims, 16, 65-67 
Argentina 

historic waters disputes, 25 

navigational regime for Strait of Magellan, 194 

straight baseline claims 
overlarge bays and gulfs, 79 

terminus located on a maritime boundary at sea, 73 
Assertions, operational, 5-6, 12, 97 
Australia, historic waters disputes, 25-26 
Azores Islands (Portugal) 

archipelagic status claimed, 16 

straight baseline claims, 63 

B 

Bahamas, archipelagic status claimed, 15, 132 
Bangladesh 

contiguous zones, 14 
innocent passage of warships, 158 
straight baseline claims, 77 
Barbados 
exclusive economic zones, excessive claims, 115 
innocent passage of warships, 158 
Basel Convention on the Control of Transboundary Movements of Hazardous 

Wastes and Their Disposal (1989), 163-164, 246-247, 262 
Baselines, 41-91 
archipelagic, 132-138 
harbor works and, 41-42 
low water line, 41 
normal, 41 

not yet published, 80-82 
reefs and, 42 
straight, 12-13, 42-43 
archipelagos and, 15, 16 
excessive claims: See Straight baseline claims 
low-tide elevations and, 43 

1982 U.N. Convention on the Law of the Sea, 42 
river mouths and, 43 
United States policy, 43 
unstable coastlines and, 43 
of the United States, 41 
Bays 
Anxious, 25-26 
Domingo, 12 
El-Arab, 34 
Encounter, 25-26 
Escocesa, 12 
historic, 12 






Index 359 



claims made, 23-34 
claims rolled back, 34 
disputed 
Palk, 27 

Peter the Great, 12, 31-33 
Sidra, 6, 12, 27-31 
Ungwana, 12 
juridical 

Chesapeake, 34 
Delaware, 34 
Long Island Sound, 34 
Neiba, 34 
Ocoa, 34 
Samana, 34 
Lacepede, 25-26 
overlarge, 77-80 
RJvoli, 25-26 
Benin, innocent passage of warships, 155 
Black Sea, 6, 148-154 

Brazil, exclusive economic zones, excessive claims, 14, 241-244 
Bulgaria, innocent passage 
claims rolled back, 162-163 
warships, 158 
Burma 
contiguous zones, 14 

exclusive economic zones, excessive claims, 115-116 
innocent passage of warships, 158 
opeiational assertions against, 13, 14 
straight baseline claims 
Gulf of Martaban, 13, 44 
waters not linked to the land domain, 69 



Cambodia 
baselines, 13 

historic waters disputes, 26-27 
operational assertions against, 12, 13, 14 

Cameroon, straight baseline claims, 55-57 

Canada, 41 
Agreement on Arctic Cooperation, 212-214 
navigational regime for Northwest Passage, 207-212 
offshore islands as archipelagic states, 16 
straight baseline claims 
deeply indented coastline, 57-58 
non-independent archipelagos, 65-67 

Cape Verde 
archipelagic baseline claims, 15, 134 
innocent passage of warships, 158 

Chile 
continental shelf, excessive claims, 15, 128 
navigational regime for Strait of Magellan, 194 

China, innocent passage of warships, 155, 158 



360 Index 

Colombia 
exclusive economic zones, 14 
innocent passage of hazardous waste, 164 
operational assertions against, 13 
straight baseline claims, 13, 44, 49-50 
Tlxe Commander's Handbook on the Law of Naval Operations, 257-258 
Comoros, archipelagic status claimed, 15 
Congo, innocent passage of warships, 158 
Contiguous zones, 103-108 
defined, 13-14 
excessive claims, 13-14, 104-106 

Bangladesh, 14 

Burma, 14 

Haiti, 14, 105 

Iran, 14 

Korea, 14 

Namibia, 14, 105-106 

Sri Lanka, 14 

Sudan, 14 

Syria, 14, 105 

Venezuela, 14 

Vietnam, 14, 105 

Yemen, 14 
juridical regime, 103-104 
as security interest, 106 
states claiming, 103-104 
United States policy, 103 
Continental shelf 
delimitation of outer edge, 124-125 
excessive claims, 15, 126-128 

Chile, 15, 128 

Ecuador, 15, 126-128 

Guyana, 15, 126 

India, 15, 126 

Mauritius, 15, 126 

Pakistan, 15, 126 

Seychelles, 15, 126 
geologic definition, 121 
juridical definition, 14-15, 121-124 

Third U.N. Conference on the Law of the Sea (UNCLOS III), 121-124 
United States policy, 125 
Convention for the Prohibition of Fishing with Long Driftnets in the South 

Pacific (1989), 246, 263 
Conventions: See International agreements 
Costa Rica 
exclusive economic zones, excessive claims, 244-246 
straight baseline claims, 49, 77-79 
Cuba 
Cuban Flight Information Region (FIR), 231 
operational assertions against, 13 
overflight restrictions, 17, 231 
straight baseline claims, 13 

baseline departs from general direction of coast, 67-69 

fringing islands, 60-62 



Index 361 

waters not linked to the land domain, 69-71 

D 

Deep seabed mining, 259, 267 
Denmark 

innocent passage of warships, 160 

navigational regime for Baltic Straits, 217 

offshore islands as archipelagic states, 16, 63-65, 132 
Diplomatic correspondence, Freedom of Navigation Program and, 4-6 
Djibouti 

innocent passage of warships, 16, 160-161 

straight baseline claims, 63 
Dominican Republic 

baselines, 13 

historical bay claims, 12 

juridical bays in, 34 

operational assertions against, 13 



Easter Island, 15 
Ecuador 

continental shelf, excessive claims, 15, 126-128 

innocent passage of hazardous waste, 164 

operational assertions against, 13 

overflight restrictions, 17, 231-232 

straight baseline claims, 13 
fringing islands, 16, 62, 132 

terminus located on a maritime boundary at sea, 73 
terminus located on the territory of another state, 74 
EEZ: See Exclusive Economic Zones 
Egypt 

exclusive economic zones, excessive claims, 116 

historic bay claims rolled back, 34 

innocent passage 
nuclear powered ships, 16, 161-162 
warships, 158 

navigational regime for Strait of Tiran and Gulf of Aqaba, 219-221 

straight baseline claims, 50-54 
Ethiopia, 13 
Excessive claims 

archipelagic sea lanes passage, 18, 236-238 

archipelagos: See Archipelagic States 

baselines: See Straight baseline claims 

contiguous zones: See Contiguous zones 

continental shelves, 15, 126-128 

exclusive economic zones: See Exclusive Economic Zones 

historic bays: See Bays 

identification of, 11-19 

innocent passage: See Innocent passage 

international straits, 16-17 

overflight restrictions: See Overflight restrictions 



362 Index 

territorial sea breadth, 13, 96-97 
U.S. security and, 266 
Exclusive Economic Zones, 3, 14, 109-117 
Convention for the Prohibition of Fishing with Long Driftnets in the 

South Pacific 0989), 246, 263 
as customary law, 110-113 
excessive claims, 14, 115-117 

Barbados, 115 

Brazil, 14, 241-244 

Burma, 115-116 

Colombia, 14 

Costa RJca, 244-246 

Egypt, 116 

Grenada, 116 

Guyana, 116 

India, 116 

Maldives, 117 

Mauritius, 116 

Pakistan, 116 

Portugal, 246-247 

Seychelles, 116 

Trinidad & Tobago, 116 

Uruguay, 14 
fishery regulations, imprisonment provisions, 117 
hazardous waste transport through, 246-247 
juridical regime, 109-110 
navigation in, 241-249 

criteria for, 241 

marine scientific research (MSR), 247-249 

military activities, 248-249 

survey activities, 247-249 
1982 U.N. Convention on the Law of the Sea, 109-110, 241-242 
states claiming, 112 
United States policy, 113-115 



Falkland Islands, straight baseline claims, 67 

Faroes Islands (Denmark), archipelagic status claimed, 16 

Fiji, archipelagic status claimed, 15, 132 

Finland 

innocent passage, 147-148, 158 

navigational regimes 
for Aland Strait, 182-183 
for Baltic Straits, 217 
FON Program: See Freedom of Navigation Program 
France, innocent passage, 155, 156 
Freedom of Navigation Program, 3-9 

identification of excessive claims, 11-19 

innocent passage, 16 

magnitude of operations, 6 

naval and air force operations, 5-6 

objectives of, 4 



Index 363 



operational assertions, 4-6 
success of, 255-256 



Galapagos Islands (Ecuador) 

archipelagic status claimed, 16 

straight baseline claims, 65 
Geneva Convention On The Territorial Sea And The Contiguous Zone, 34, 41, 56 

baselines, 12-13 
Germany 

innocent passage, 156 
hazardous waste, 164 
warships, 158 

straight baseline claims, 71-73 
Grenada 

exclusive economic zones, excessive claims, 116 

innocent passage of warships, 158 
Grenadines, archipelagic status claimed, 15 
Guatemala, Gulf of Amatique, 34 
Guinea 

operational assertions against, 13 

straight baseline claims, 13, 55 
Guinea-Bissau 

operational assertions against, 13 

straight baseline claims, 13 
Gulfc 

Amatique, 34 

Aqaba, 50 
navigational regime for, 219-221 

California, 63 

Mannar, 27 

Martaban, 13, 44 

Panama, 12, 31 

Sidra, 6, 12, 27-31 

Taranto, 27 

Thailand, 12, 27, 73 

Tonkin, 12, 33-34 
Guyana 

continental shelf, excessive claims, 15, 126 

exclusive economic zones, excessive claims, 116 

innocent passage of warships, 158 

H 

Haiti 
contiguous zones, 14 

excessive claims, 105 
innocent passage of hazardous waste, 163 
operational assertions against, 13, 14 
straight baseline claims, 13 
baselines not published, 80 
Harbor works, baselines and, 41-42 



364 Index 

Hazardous waste 
Basel Convention on the Control of Transboundary Movements of Hazardous 

Wastes and Their Disposal (1989), 163-164, 246-247, 262 
innocent passage of, 163-164 
international agreements, 260-262 
transport through exclusive economic zones, 246-247 
Historic waters, 23-39 
bays: See Bays 
criteria for, 23 
excessive claims, 23-34 

Argentina, 25 

Australia, 25-26 

Cambodia, 26-27 

India, 27 

Italy, 27 

Libya, 27-31 

listed, 23-24 

Panama, 31 

Sri Lanka, 27 

Uruguay, 25 

USSR (former), 31-33 

Vietnam, 26-27, 33-34 
historic bay claims rolled back 

Egypt, 34 

juridical bays, 34 
United States, 23 
Hydrographic surveys, in exclusive economic zones, 247-249 

I 

India 
continental shelf, excessive claims, 15, 126 
exclusive economic zones, excessive claims, 116 
historic waters disputes, 27 
innocent passage of warships, 158 
Indonesia 
archipelagic baseline claims, 15, 134 
archipelagic sea lanes passage, 18 
navigational regimes 

for Malacca and Singapore Straits, 194-197 

for Sunda and Lombok Straits, 218-219 
operational assertions against, 17 
Innocent passage, 16, 143-164 
Denmark, 160 
Djibouti, 160-161 
Egypt, 161-162 
excessive restrictions 

claims rolled back, 16, 162-163 

compulsory pilotage, 147-148 

enforcement of violations, 159-160 

hazardous waste, 163-164 

limitation on number of warships, 160 

nuclear powered warships, 16, 160-162 



Index 365 



passage limited to sea lanes, 148-154 
prior notice or permission for warships, 154-159 
prohibited zones, 146-147 
time limits for passage, 146-147 
Finland, 147 

in international straits, 181-182 
Italy, 148 
Libya, 146 
Oman, 162 
Pakistan, 160 

permissible restrictions on, 144-145 
Russia, 16 
Sri Lanka, 145-146 
temporary suspension of, 145-146 
USSR (former), 148-157 
excessive claims rolled back, 16 

joint statement with U.S., 143-144, 153-154, 162, 256, Appendix 4 
Vietnam, 160 
Yemen, 160, 161 
Yugoslavia (former), 160 
International agreements, 258 
Agreement on Arctic Cooperation, 212-214 
Basel Convention on the Control of Transboundary Movements of Hazardous 

Wastes and Their Disposal (1989), 163-164, 246-247, 262 
Convention for the Prohibition of Fishing with Long Driftnets in the 

South Pacific (1989), 246, 263 
on environmental protection, 259-262 
Geneva Convention On The Territorial Sea And The Contiguous Zone, 34, 41, 57 

baselines, 12-13 
1982 U.N. Convention On The Law of The Sea: See U.N. Convention on the 

Law of the Sea (1982) 
on sovereign immunity, 263-264 
Territorial Sea Convention, 182 

U.S.- USSR Uniform Interpretation of the Rules of International Law 
Governing Innocent Passage, Appendix 4, 143-144, 153-154, 162, 256 
International Court of Justice 
exclusive economic zones, opinion on, 111 
international straits, identification of, 182 
International law 
action by deed, 5 
development of, 258-259 
freedom of navigation program following, 4-5 
Iran 
contiguous zones, 14 
innocent passage of warships, 155, 158 
navigational regime for Strait of Hormuz, 189-191 
operational assertions against, 17 
Islands: See also Archipelagic States 
arctic, 16, 65-67 
Azores, 16, 63 
Easter, 15 
Falkland, 67 
Faroes, 16 
fringing: See Straight baseline claims 



366 Index 

Galapagos, 15, 16, 65 
Marshall, 15 
Poulo Wai, 73 
Sala Y Gomez, 15 
Solomon, 15 
Israel, 17 

navigational regime for Strait of Tiran and Gulf of Aqaba, 219-221 
Italy 
historic waters disputes, 27 
innocent passage 

compulsory pilotage, 148 

hazardous waste, 164 

warships, 156 
navigational regime for Strait of Messina, 197-200 
straight baseline claims, 60 



Japan, innocent passage of hazardous waste, 164 

K 

Kenya, operational assertions against, 12 
Kiribati, archipelagic status claimed, 15 
Korea 

baselines not published, 80 

contiguous zones, 14 

innocent passage of warships, 155 

operational assertions against, 14 



Law of The Sea Convention: See U.N. Convention on the Law of the Sea 

(1982) 
Libya, 17 

historic waters disputes, 27-31 

innocent passage 
limitation of, 146 
prior notice for warships, 158 

operational assertions against, 12 

overflight restrictions, 17, 232 

straight baseline claims, 79 
Long Island Sound 

as historic water area, 23 

as juridical bay, 34 
LOS Convention: See U.N. Convention on the Law of the Sea (1982) 
Low-tide elevations, and straight baselines, 43 

M 

Malaysia, navigational regime for Straits of Malacca and Singapore, 194-197 
Maldives 
innocent passage of warships, 158 



Index 367 



straight baseline claims, 74-77 
Malta 
baselines not published, 80-82 
innocent passage 
enforcement violations, 159-160 
prior notice for warships, 155, 158 
Marine scientific research (MSR), in exclusive economic zones, 247-249 
Marshall Islands, archipelagic status claimed, 15 
Mauritania 
operational assertions against, 13 
straight baseline claims, 13, 80 
Mauritius 
continental shelf, excessive claims, 15, 126 
exclusive economic zones, excessive claims, 116 
innocent passage of warships, 158 
Mexico 

innocent passage of hazardous waste, 164 
straight baseline claims 
baseline departs from general direction of coast, 69 
fringing islands, 63 

waters are not linked to the land domain, 71 
Military surveys, 248-249 
Mississippi Sound, as historic water area, 23 

N 

Namibia, contiguous zones, excessive claims, 14, 105-106 
National security interests 

contiguous zones and, 13-14 

freedom of the seas and, 265-268 

maritime mobility, 4-5 
NATO, 17 
Netherlands, 73 
Nicaragua 

operational assertions against, 14 

overflight restrictions, 17-18 
1982 U.N. Convention on the Law of the Sea: See U.N. Convention on the Law 

of the Sea (1982) 
Northeast Passage, historic waters dispute, 33 
NWP 9A (The Commander's Handbook on the Law of Naval Operations), 257-258 



Oman 
innocent passage 

nuclear powered ships, 16, 162 

warships, 158 
operational assertions against, 13, 17 
straight baseline claims, 13 

deeply indented coastline, 50 

fringing islands, 60 
Overflight restrictions, 13, 231-234 
archipelagic sea lanes passage, 235-236 



368 Index 

excessive claims, identification of, 17-18 
Turkish straits and, 185 
United States protests 

Cuba, 17, 231 

Ecuador, 17, 231-232 

Greece, 17 

Libya, 17, 232 

Nicaragua, 17 

Peru, 17, 232-234 



Pakistan 
continental shelf, excessive claims, 15, 126 
exclusive economic zones, excessive claims, 116 
innocent passage 
nuclear powered ships, 16, 160 
warships, 155, 158 
Panama 

historic waters disputes, 12, 31 
operational assertions against, 12 
Papua New Guinea 
archipelagic baseline claims, 134 
archipelagic status claimed, 15 
Peru, overflight restrictions, 17, 232-234 
Philippines 
archipelagic baseline claims, 134-138 
archipelagic sea lanes passage, 18 

excessive claims, 236-237 
archipelagic status claimed, 15 
innocent passage of warships, 158 
Poland, innocent passage of warships, 158 
Portugal 

innocent passage of hazardous waste, 164 
offshore islands as archipelagic states, 16, 132 
straight baseline claims 
deeply indented coastline, 54 
fringing islands, 62 
non-independent archipelagos, 63 
Poulo Wai Island, 73 



Reefs, baselines and, 42 

Resource conservation, 262-263 

Rio de la Plata, historic waters dispute, 25 

River mouths, straight baselines and, 43 

Romania, innocent passage of warships, 158 



Saint Vincent, archipelagic status claimed, 15 
Sala Y Gomez Island, 15 



Index 369 



Sao Tome & Principe 
archipelagic baselines, 132 
archipelagic status claimed, 15 
Seas, territorial: See Territorial sea 
Security 
as contiguous zone interest, states claiming, 106 
United States: See National security interests 
Senegal, straight baseline claims, 55 
Seychelles 
continental shelf, excessive claims, 15, 126 
exclusive economic zones, excessive claims, 116 
innocent passage of warships, 158 
Singapore, navigational regime for Straits of Malacca and Singapore, 

194-197 
Solomon Islands, archipelagic status claimed, 15 
Somalia, innocent passage of warships, 158 
Sovereign immunity, of warships and military aircraft, 263-264 
Sovereign rights, exclusive economic zones, 109 
Spain 
navigational regime for Strait of Gibraltar, 185-189 
operational assertions against, 17 
straight baseline claims, 67 
Sri Lanka 
contiguous zones, 14 
historic waters disputes, 27 
innocent passage 
suspension of, 145-146 
warships, 158 
Straight baseline claims, 12-13, 43-82 
Albania, 55 
Argentina, 73, 79 
Bangladesh, 77 
baseline departs from general direction of coast, 67-69 

Cuba, 67-69 
baselines not published, 80-82 
Haiti, 80 
Korea, 80 
Malta, 80-82 
basepoints located at sea, 74-77 

Maldives, 74-77 
Burma, 13, 69 
Cambodia, 13 
Cameroon, 55 
Canada, 57-58, 65-67 
Colombia, 13, 44, 49-50 
Costa Rica, 49, 77-79 
Cuba, 13, 60-62, 67-71 
deeply indented coastline, 49-58 
Albania, 55 
Cameroon, 55 
Canada, 57-58 
Colombia, 49-50 
Costa Rica, 49 
Egypt, 50-54 



370 Index 

Guinea, 55 

Oman, 50 

Portugal, 54 

Senegal, 55 

USSR (former), 58 
Denmark, 63-65 
Djibouti, 63 

Dominican Republic, 13 
Ecuador, 13, 62, 73, 74 
Egypt, 50-54 
Ethiopia, 13 
fringing islands, 58-63 

Cuba, 60-62 

Djibouti, 63 

Ecuador, 62 

Italy, 60 

Mexico, 63 

Oman, 60 

Portugal, 62 

Vietnam, 58-60 
Germany, 71-73 
Guinea, 13, 55 
Guinea-Bissau, 13 
Haiti, 13, 80 
Italy, 60 
Korea, 80 
Libya, 79 
listed, 44-48 
low-tide elevation improperly used as a basepoint, 71-73 

Germany, 71-73 

Sudan, 73 
Maldives, 74-77 
Malta, 80-82 
Mauritania, 13, 80 
Mexico, 63, 71 
non-independent archipelagos, 63-67 

Canada, 65-67 

Denmark, 63-65 

Portugal, 63 

Spain, 67 

Sudan, 65 

United Kingdom, 67 
Oman, 13, 50, 60 
overlarge bays and gulfs, 77-80 

Argentina, 79 

Costa Rica, 77-79 

Libya, 79 

Mauritania, 80 

Sudan, 80 
Portugal, 54, 62, 63 
Senegal, 55 
Spain, 67 
Sudan, 65, 73, 80 
terminus located on a maritime boundary at sea, 73 



Index 371 



Argentina, 73 

Ecuador, 73 

Uruguay, 73 

Vietnam, 73 
terminus located on the territory of another state, 74 

Ecuador, 74 

Venezuela, 74 
terminus not located on own mainland, 77 

Bangladesh, 77 
United Kingdom, 67 
Uruguay, 73 
USSR (former), 13, 58 
Venezuela, 74 
Vietnam, 13, 58-60, 73 
waters are not linked to the land domain, 69-71 

Burma, 69 

Cuba, 69-71 

Mexico, 71 
Straits, international, 12, 177-222 
Aland, 182-183 
Bab el Mandeb, 17, 183 
Beagle Channel, 179 
Bosporus and Dardanelles, 183-185 
Dover, 180-181 

excessive claims, identification of, 16-17 
geographic definition, 182 
Gibraltar, 17, 185-189 
Hormuz, 17 

straight baseline claims, 50 

transit passage, 179-180, 189-191 
Kuril 

Etorofu, 191-192 

Golovnina, 192-194 
legal regime, 177 
Lombok, 17 
Magellan, 179, 194 
Malacca, 17, 194-197 
Messina, 197-200 
navigational regimes of particular straits 

Aland, 182-183 

Bab el Mandeb, 183 

Bosporus and Dardanelles, 183-185 

Gibraltar, 185-189 

Hormuz, 189-191 

Kuril 
Etorofu, 191-192 
Golovnina, 192-194 

Magellan, 194 

Malacca and Singapore, 194-197 

Messina, 197-200 

Northeast Passage, 200-207 

Northwest Passage, 207-215 

Oresund and the Belts, 215-218 

Sunda and Lombok, 218-219 



372 Index 

Tiran, 219-221 

United Kingdom straits, 221-222 
non-suspendable innocent passage, 181-182 
Northeast Passage, 200-207 
Northwest Passage, 207-215 

agreement on Arctic cooperation, 212-214 

transit by USCG Icebreaker Polar Sea, 207-212 

transit by USCG Icebreaker Polar Star, 214-215 
not completely overlapped by territorial seas, 182 
Oresund and the Belts, 215-218 
overflight 

transit passage, 17-18, 177-178 

Turkish Straits, 185 
Singapore, 194-197 
Sunda and Lombok, 218-219 
Tiran, 219-221 
transit passage, 16-17, 177-181 

Beagle Channel, 179 

Dover, 180-181 

Hormuz, 179-180 

Magellan, 179 

overflight, 17-18, 177-178 
United Kingdom straits, 221-222 
Suakin Archipelago (Sudan), archipelagic status claimed, 16 
Submarines 
archipelagic sea lanes passage, 235 
transit passage through international straits, 178 
Sudan 
contiguous zones, 14 
innocent passage of warships, 158 
offshore islands as archipelagic states, 16, 132 
straight baseline claims 

low-tide elevation improperly used as a basepoint, 73 

non-independent archipelagos, 65 

overlarge bays and gulfs, 80 
Sweden 
innocent passage of warships, 157-158 
navigational regimes 

for Aland Strait, 183 

for Baltic Straits, 217 
Syria 
contiguous zones, 14 

excessive claims, 105 
innocent passage of warships, 158 
operational assertions against, 14 



Territorial sea, 93-101 
claims, 94-96 

greater than 12 miles, 13, 97 
12 miles or less, 94-95 
rolled back, 13,96-97 



Index 373 



innocent passage in: See Innocent passage 

international straits and, 182 

pre-World War II, 3 

United States policy, 93 
Territorial Sea Convention, international straits, identification of, 182 
Thailand 

exclusive economic zones, navigation in, 246 

innocent passage, 155-156 

transit passage through international straits, 181 
Third U.N. Conference on the Law of the Sea (UNCLOS III): See United Nations 
Tho Chu Archipelago, 73 
Transit passage, 17 

international straits and, 177-181 
United States policy, 178-180 

submarines, 178 
Trinidad & Tobago 

archipelagic sea lanes passage, excessive claims, 238 

archipelagic status claimed, 15 

exclusive economic zones, excessive claims, 116 
Turkey 

innocent passage, 16 
claims rolled back, 162-163 

navigational regime for Turkish Straits, 183-185 
Tuvalu, archipelagic status claimed, 132 

u 

U.N. Convention on the Law of the Sea (1982), 6 

archipelagic states, 131-132 

continental shelf, juridical definition, 121-124 

deep seabed mining provisions, reform of, 259, 267 

development of customary international law, 258 

environmental protection, 259 

excessive claims identification and: See Excessive claims 

exclusive economic zones, 241 

innocent passage, 143-145 

legal regime of, 3 
international straits, 177 

marine scientific research (MSR), 247-249 

policy guidance for maritime forces, 257-258 

ratifications and accessions, Appendix 5 

transit passage, 17 
UNCLOS III (Third U.N. Conference on the Law of the Sea): See United 

Nations 
United Kingdom, 34, 73 

innocent passage, 156 
hazardous waste, 164 

navigational regime for straits, 221-222 

straight baseline claims, 67 
United Nations 

Conference on Environment and Development (UNCED), 263 

excessive maritime claims: See Excessive claims 

Third U.N. Conference on the Law of the Sea (UNCLOS III), 15, 16, 109 



374 Index 

archipelagic sea lanes passage, 236 
continental shelf, juridical definition, 121-124 
excessive claims: See Excessive claims 
exclusive economic zones, 113-114 
innocent passage of warships, 154-156 
United States 
assertions of right, 17 

Freedom of Navigation Program: See Freedom of Navigation Program 
historic waters, 23 
ocean policy 
Agreement on Arctic Cooperation, 212-214 
continental shelf, 124-125 
conventional international law, 258-259 
emerging issues 
conservation of marine resources, 262-263 
environmental protection, 259-262 
maritime counter-drug operations, 265 

sovereign immunity of warships and military aircraft, 263-264 
exclusive economic zones, 113-115 
freedom of navigation and overflight, 4 
implementation of, 255-259 

1983 Oceans Policy Statement, 4, 257, 267, Appendix 1 
promulgation of, for maritime forces, 256-258 
straight baselines, 43 
survey activities, 248-249 
territorial sea, 93 
for the 21st century, 265-268 
Presidential proclamations 
exclusive economic zones, 111, 114, Appendix 2 
innocent passage, 143, Appendix 3 
territorial sea, 93, Appendix 3 

transit passage through international straits, 178, Appendix 3 
Unstable coastlines, straight baselines and, 43 
Uruguay 
exclusive economic zones, 14 
historic waters disputes, 25 
innocent passage of hazardous waste, 164 
straight baseline claims, 73 
U.S.- USSR Uniform Interpretation of the Rules of International Law 
Governing Innocent Passage, 143-144, 153-154, 162, 256 
text of, Appendix 4 
USCG East Wind, 203-207 
USCG Edisto, 203-207 
USCG Icebreaker Polar Sea, 207-212 
USCG Icebreaker Polar Star, 214-215 
USCG Northwind, 200, 202-203 
USS Burton Island, 33, 200-202 
USS Caron, 149-153 
USS Lockwood, 32 
USSR (former), 1 1 1 
historic waters disputes, 31-33 
innocent passage, 16 
claims rolled back, 162 
limited to sea lanes, 148-154 



Index 375 



navigational regimes 
for Kuril Straits, 191-194 
for Northeast Passage, 200-207 
operational assertions against, 12, 13, 17 
straight baseline claims, 13, 58 
USS Yorktoum, 149-153 



Vanuatu 

archipelagic baseline claims, 134 

archipelagic status claimed, 15 
Venezuela 

contiguous zones, 14 

innocent passage of hazardous waste, 164 

straight baseline claims, 74 
Vietnam 

contiguous zones, excessive claims, 14, 105 

historic waters disputes, 26-27, 33-34 

innocent passage of warships, 158, 160 

operational assertions against, 12, 13, 14 

straight baseline claims, 13 
fringing islands, 58-60 
terminus located on a maritime boundary at sea, 73 



w 



Warships 

innocent passage of 

claims rolled back, 162-163 

limitation on number, 160 

limited to sea lanes, 148-154 

nuclear powered, 16, 160-162 

prior notice or permission, 154-159 

Third U.N. Conference on the Law of the Sea (UNCLOS III), 154-156 
sovereign immunity of, 263-264 
USS Caron, 149-153 
USS Lockwood, 32 
USS Yorktown, 149-153 



Yemen 

contiguous zones, 14 

innocent passage, 16 
nuclear powered ships, 160-161 
prior notice or permission for warships, 1 58 

navigational regime for Bab el Mandeb Strait, 183 

operational assertions against, 14, 17 
Yugoslavia (former), innocent passage 

limitation on number of warships, 160 

prior notice for warships, 1 58 



376 Index