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
Assertion3
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 Neibab 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 BayofelArabc
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.
Assertion3
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
1984e
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
1974e
1981e
Panama
Gulf of Panama
Law No. 9, Jan. 30, 1956
1956e
Soviet
Peter the Great Bay
Decree July 20, 1957
1957e
1982e
Union
Laptev, Demitri,
Sannikov Straits
Aide Memoire July 21, 1964
1965
1984e
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 1963e
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 *Ca<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 3L f 1 Velikogo <$ H/ X:: ,}^^
? ^\^"^\Cr%Ni>^^ f (Peter 7he Greot — M>s povorotnyy
? lO 3 ^CC'^^ T? ^Jv """"*' ("Cope Povorotnyy)
North .^mi , — cw,m
K 0 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** 0 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 Baselines21
[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
1986a
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
■A27
OMAN
■ W 128.29
./ Al Masirah\iO
.jSsT
36^^
\ f JT52
\|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 :|Montenegr°
and Territorial Sea
Decree No. 7366
March 24. 1990
0 25 kilometers
I — 1-rl — S — ■— r1 1 1
0 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 0 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 0 is neither a high-tide elevation nor a
low-tide elevation with a permanent structure; therefore, a basepoint at point 0
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°45'15MS], and longitudes 72.30 Vl degrees East [72°30'30ME], 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
0 P
Q
— d1
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
0
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 Bahamas3
Denmark13' 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)
Finland3' b« d
Norway
Six miles (3)
Dominican Republic0'
Greece
Turkey
Twelve miles (119)
Albaniad
Algeria
Antigua and Barbuda2
Argentina3
Australia0' d
Bahrain3
Bangladesh
Barbados3
Belgium0
Belize3' 8
Brazil3
Brunei
Bulgaria0' d
Burma
Cambodia0,
Canada
Cape Verde3' h
Chile
China
Colombia
Comoros3'
Cook Islands
Costa Rica3' d
Cote d'lvoire3
Cuba3
Cyprus3' d
Djibouti3
Dominica3
Egypt3
Equatorial Guinea
Eriterea
Estonia
Fiji3'°'d'h
France*
Gabon
Gambia, The3
Twelve Miles ((Cont.)
Table 4 (Cont.)
Territorial Sea 95
Ghana*
Grenada*
Guatemalad
Guinea*
Guinea-Bissau*
Guyana*
Haiti0' d
Honduras*
Iceland*
India
Indonesia*' d' n
Iran
Iraq*
Ireland
Israel0' d
Italy0' d
Jamaica*' c' d
Japan0' d'J
Kenya*' °' d
Kiribati
Korea, North
Korea, South
Kuwait*
Latvia
Lebanon
Libya
Lithuania
Madagascar0' d
Malaysia0' d
Maldives
Malta*' °
Marshall Islands*
Mauritania
Mauritius0' d
Mexico*' °* d
Micronesia, Fed. States of*
Monaco
Morocco
Mozambique
Namibia*
Nauru
Netherlands0' d
New Zealand
Niue
Oman*
Pakistan
Papua New Guinea
Polandd
Portugal0 'd
Qatar
Romania0' d
Russia0' d
Saint Kitts and Nevis*
Saint Lucia*
Saint Vincent and the
Grenadines*
Sao Tome & Principe*' n
Saudi Arabia
Senegal*' d
Seychelles*
Solomon Islands0' a' n
South Africa0' d
Spain0' d
Sri Lanka
Sudan*
Suriname
Sweden
Tanzania*
Thailand0' d
Tonga0' d
Trinidad & Tobago*' °' d' h
Tunisia*' °
Tuvalu
Ukraine
United Arab Emirates
United Kingdom0' d' m
United States0' d' n
Vanuatu
Venezuela0' 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.
eThe 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.
cSouth Korea's territorial sea remains 3 miles in the Korea Strait.
Includes Tokelau.
mIncludes 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
nma
1990
Argentina
1967
200
nmb
1991
Brazil
1970
200
nmc
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
aDecree 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.
cDecree 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
1985a
1989
1981a
1968
1988a
1987
1981a
1967a
1979a
1950
1979a
1985
1977
1981a
1982
1984a
1967a
1948a
1986
1973
1982
1981a
1984
1970
1982
1992a
1979a
1980a
1994a
1981a
1979a
1981a
.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
18h
41b
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
1985b
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
1986b
1979b
1981
1982b
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 0 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 Barbuda3
Guinea-Bissau3
Haiti
Portugal
Qatar
Argentina3
Honduras3
Romania
Bangladesh
Barbados3
Iceland3
India
Russia
Saint Kitts and Nevis3
Belize3
Indonesia3
Saint Lucia3
Brazil3
Iran
Saint Vincent and the
Brunei
Jamaica3
Grenadines3
Bulgaria
Burma
Cambodia
Kenya3
Kiribati
Korea, North0
Sao Tome & Principe3
Senegal3
Seychelles3
Cape Verde3
Latvia
Solomon Islands
Chile
Colombia
Comoros
Madagascar
Malaysia
Maldives
Spain
Sri Lanka
Suriname
Cook Islands
Marshall Islands3
Sweden
Costa Rica3
Mauritania
Tanzania3
Cote d'lvoire3
Mauritius
Thailand
Cuba3
Djibouti3
Dominica3
Mexico3
Micronesia,
Fed. States of3
Togo3
Tonga
Trinidad & Tobago3
Dominican Republic
Egypt3
Equatorial Guinea
Morocco
Mozambique
Namibia3
Turkey (Black Sea)
Tuvalu
Ukraine
Estonia
New Zealande
United Arab Emirates
Fiji3
Nigeria3
United States*
France
Niue
Vanuatu
Gabon
Ghana3
Norway
Oman3
Venezuela
Vietnam
Grenada3
Pakistan
Western Samoa
Guatemala
Philippines3
Yemen3
Guinea3
Poland
Zaire3
aRatified the 1982 LOS Convention.
Includes all French overseas departments and territories.
cNorth 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.
eIncludes 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, India16in 1983, and Mauritius,17 Pakistan18 and the Seychelles19 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%
Is 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 Kiribati3 Sao Tome &
The Bahamas (pending)3 Marshall Islands3 Principe
Cape Verde Papua New Guinea Solomon Islands
Comoros3 Philippines Trinidad & Tobago
Fiji Saint Vincent and Tuvalu
Indonesia the Grenadines3 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"
0 10 20 30 40 50 miles
I i—H r1 — i — H ' '
0 10 20 30 40 50 kilometers
Santo© o0 **
Antao AfonV°
24"
Pto- do Co/hou — ■ • -«.
Santa
** /v^ ^r%'w-
\
*«*
Weenie, "'o ^
Branch 0
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 1985a
1964* 1979a
1987 1987
1982
1982 1982a
1982 1985'
1986
1989
1991
1992
1986
1987
1991
1985
1993
1989
1982a
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
1981a
Malta
Prior notification; 1981
1981a
Mauritius
Prior notification; 1977
1982
Oman
Prior permission; 1989
1991
1991a
Pakistan
Prior permission; 1976
1982
1986a
Philippines
Prior permission; 1968
1969
1994
Poland
Prior permission; 1968
1989
Romania
Prior permission; 1956
1989
1985a
St. Vincent & the
Grenadines
Prior permission; 1983
Seychelles
Prior notification; 1977
1982
Somalia
Prior permission; 1972
1982
1979a
Sri Lanka
Prior permission; 1977
1986
1985a
Sudan
Prior permission; 1970
1989
1979a
Sweden
Prior notification; 1966
1984a
1991a
Syria
Prior permission; 1963
1989
1984a
Vietnam
Prior permission; 1980
1982
1982a
Yemen
Prior permission (PDRY); 1967
1982
1982a
Prior notification (YAR); 1978
1986
1979a
Yugoslavia, Former
Prior notification; 1965
1986a
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
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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«iMii^ 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 0 (1989) hereinafter NWP 9 (Rev. A) ANN. SUPP.], Introduction at
33-34, ¶. 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
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