Brooklyn Journal of International Law Volume 2 | Issue 2 Article 6 1976 CASE COMMENT: United States v. Alaska Martha Salper Follow this and additional works at: https://brooklynworks.brooklaw.edu/bjil Recommended Citation Martha Salper, CASE COMMENT: United States v. Alaska, 2 Brook. J. Int'l L. (2016). Available at: https://brooklynworks.brooklaw.edu/bjil/vol2/iss2/6 This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Journal of International Law by an authorized editor of BrooklynWorks. United States v. Alaska-Proof of sovereignty exercised by Alaska over Cook Inlet was insufficient to establish the inlet as an historic bay and thus the United States, as against Alaska, has rights to the oil and gas lands beneath the lower portion of the inlet. INTRODUCTION One of the most controversial areas of international law since the end of World War II has been the freedom of the seas. Histori- cally, the use of the high seas has been reserved for the com- munity of nations, with States maintaining jurisdiction over areas adjacent to their coasts.' However, the emergence of tech- nology for exploitation of the continental shelf has led to the 2 expansion of claims to the sea and to the seabed. The continental shelf of the United States presents unique problems. Not only must the federal government assert sover- eignty over the continental shelf as against other nations, but its claims are also limited by claims of individual states, which have paramount rights to the seabed and resources beneath inland 3 waters . In United States v. Alaska,4 the Supreme Court considered whether Cook Inlet could be properly characterized as an historic bay and, therefore, as inland waters of Alaska. The decision of the Court that the inlet was not an historic bay clarified the proof necessary to establish historic title. The decision must also be viewed in light of its ultimate effect-the granting of immense reserves of oil and gas to the United States Government. I. BACKGROUND Cook Inlet is a body of water which creates a large indenta- tion in the Alaska coastline. It is more than one hundred fifty miles long and its headlands at Cape Douglas, its natural entrance, are more than twenty-four miles apart.' In April, 1967, Alaska offered a tract of submerged lands in lower Cook Inlet for 1. M. McDOUGAL & W. BURKE, THE PUBLIC ORDER OF THE OCEANS 1-2 (1962). 2. Id. at 636-37. 3. See Submerged Lands Act, 43 U.S.C. §§ 1301-1315 (1970). 4. 422 U.S. 184 (1975). 5. Id. at 185-86. Cook Inlet is approximately equal in size to Lake Erie. Id. at 185 1976] CASE COMMENTS a competitive oil and gas lease sale.' The lands to be leased were situated more than three miles both from the shore of Cook Inlet and from a line drawn across the inlet at Kalgin Island, where the headlands are about twenty-four miles apart.' Therefore, the lands would not come within the lands granted to a state by the provisions of the Submerged Lands Act unless the inlet were to be characterized as an historic bay.8 One month after the land was offered for lease, the United States brought suit in the Dis- trict Court for the District of Alaska to quiet title and for injunc- tive relief. The federal government contended that the waters seaward of a point three miles below Kalgin Island constituted high seas, and that therefore the submerged lands for which leases were to be negotiated were subject to the sovereignty of the United States. Alaska argued that Cook Inlet in its entirety was an historic bay and therefore the waters were inland waters sub- ject to the exclusive sovereignty of the state of Alaska. The dis- trict court held for Alaska,9 and the Court of Appeals for the Ninth Circuit affirmed."0 "[B]ecause of the importance of the litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay,"" the Supreme Court granted certiorari." 6. Id. at 186. 7.Id. 8. The upper portion of Cook Inlet, landward of the Kalgin Island line where the in- let is twenty-four miles wide is inland waters as defined by the Convention on the Terri- torial Sea and the Contiguous Zone, Mar. 24, 1961, art. 7, para. 4, 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205 (effective Sept. 10, 1964) [hereinafter cited as Territorial Sea Convention]. For the text of paragraph 4, see note 37 infra. Pursuant to the Submerged Lands Act, Alaska has title to the inlet only as far as three miles seaward of this line if the inlet is not established as an historic bay. 43 U.S.C. § 1301(c) (1970). 9. 352 F. Supp. 815 (D. Alaska 1972). The Supreme Court commented that this case appeared to qualify for its original jurisdiction under Art. III, § 2, cl. 2 of the Constitution, and that it was "not enlightened as to why the United States chose not to bring an original action in this Court." 422 U.S. at 186 n.2. In fact, this is the first of the major submerged lands cases where an original action was not brought in the Supreme Court. 10. 497 F.2d 1155 (9th Cir. 1974) (per curiam). The court reaffirmed the Supreme Court's reasoning in United States v. Louisiana, 394 U.S. 11 (1969), that since the concept of the historic bay was relatively imprecise, the issues were priiharily factual. Therefore, the findings of the district court would have to be affirmed unless the inferences dragon from the testimony received and the voluminous documents examined were clearly erro- neous. 497 F.2d at 1157. 11. 422 U.S. at 187. 12. 419 U.S. 1045 (1974). BROOKLYN J. INT'L L. [Vol. 11:2 II. THE DELIMITATION OF THE SEA In order to understand the basis for the determination of this issue, the term historic bay must be examined in the context of the United States Submerged Lands Act'" and in light of defini- tions of the territorial sea, the high seas, and the continental shelf. The territorial sea denotes waters adjacent to the coast of a State. 4 Historically, territorial waters extended three miles from the low water mark of the coast.'5 In recent years, many coastal States have claimed larger areas, in some instances up to two hundred miles. 6 However, as yet there is no internationally recognized standard for the delimitation of the territorial sea. 7 As defined by the 1958 Convention on the Territorial Sea and the Contiguous Zone [hereinafter referred to as the Territorial Sea Convention], sovereignty over the territorial sea includes sover- eignty over the water itself as well as over the air space above and the bed and subsoil below.'" The only limitation on this sover- eignty is that the coastal State must allow the innocent passage of foreign vessels through the territorial waters.'" Beyond the territorial sea lie the high seas, which are not subject to the sovereignty of any State. "No part of the open sea 13. 43 U.S.C. §§ 1301-1315 (1970). 14. Territorial Sea Convention at art. 1. 15. The notion of the three-mile territorial sea developed in the seventeenth century, as a result of either economic considerations or military needs. The "cannon-shot rule," the original basis for the three-mile limit in Europe, delimited the territorial sea by the range of a cannon shot from the shore. It was most likely started by the Dutch during a fishing dispute with Great Britain in 1610. The Scandinavian countries, on the other hand, asserted sovereignty by a measured distance, as when Denmark reserved to its citizens a belt two leagues off the coast of Iceland to use for fishing purposes. Eventually the cannon- shot rule and the measured widths merged, and the three-mile territorial sea became a standard limit of sovereignty asserted by a nation. Kent, The Historical Origins of the Three-Mile Limit, 48 Am. J. INT'L L. 537, 538-39 (1954). 16. R. & B. SMETHERMAN, TERRITORIAL SEAS AND INTER-AMERICAN RELATIONS 4-10 (1974); Nweihed, Venezuela's Contribution to the Contemporary Law of the Sea, 11 SAN DIECO L. REV. 603, 621-23 (1974). 17. The International Law Commission, in its final report before the 1958 Vienna Conference on the Law of the Sea, failed to agree to a standard width. The Commission, however, went on record as stating that "international law did not permit" an extension of the territorial sea beyond twelve miles. Report of the InternationalLaw Commission, 11 U.N. GAOR Supp. 9, at 13, U.N. Doc. A/3159 (1956). The Vienna Conference also refused to set a standard. In addition to a lack of conventional agreement, the great diversity of claims, ranging from three miles to two hundred miles, makes it impossible to derive customary law on the subject. 18. Territorial Sea Convention at art. 2. 19. Territorial Sea Convention at art. 14; P. JESsUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION xxxiv (1927). 19761 CASE COMMENTS is allowed by international law to be subjected to the exclusive domination by one State, to become the exclusive sphere of valid- ity of one national legal order, to become the territory of a State in the narrower sense."' " Thus, while a nation may exercise al- most total sovereignty over its territorial sea, it may assert no claim to the waters beyond the territorial limit.