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United Nations Conference on the Law of the Sea, 1958, Volume I

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United Nations Conference on the Law of the Sea, 1958, Volume I United Nations Conference on the Law of the Sea Geneva, Switzerland 24 February to 27 April 1958 Document: A/CONF.13/18 Certain Legal Aspects Concerning the Delimitation of the Territorial Waters of Archipelagos Extract from the Official Records of the United Nations Conference on the Law of the Sea, Volume I (Preparatory Documents) Copyright © United Nations 2009 Document A/CONF.13/18 CERTAIN LEGAL ASPECTS CONCERNING THE DELIMITATION OF THE TERRITORIAL WATERS OF ARCHIPELAGOS BY JENS EVENSEN, ADVOCATE AT THE SUPREME COURT OF NORWAY (Preparatory document No. 15) * [Original text: English] [29 November 1957] CONTENTS page page INTRODUCTION 289 Cuba 296 I. STUDIES OF INTERNATIONAL BODIES AND VIEWS OF United Kingdom 297 INTERNATIONAL LAW PUBLICISTS Australia 297 1. Institut de droit international 290 United States of America 297 2. International Law Association 291 2. State practice concerning outlying (mid-ocean) 3. American Institute of International law .... 291 archipelagos 4. Harvard Research in International Law ... 291 The Faeroes 297 5. The Hague Codification Conference of 1930 . 292 The Svalbard Archipelago 298 6. International Law Commission 292 Iceland 298 7. Views expressed by international law publicists 294 The Bermudas 298 The Galapagos 298 II. STATE PRACTICE The Philippines 298 1. State practice concerning coastal archipelagos The Fiji Islands 299 Norway 295 Cook Islands 299 Iceland 295 Hawaiian Islands 299 Denmark 295 III. JUDGEMENT OF 18 DECEMBER 1951, BY THE INTER- Sweden 296 NATIONAL COURT OF JUSTICE AND THE LEGAL IMPLI- Finland 296 CATIONS THEREOF 300 Yugoslavia 296 IV. CONCLUSIONS Saudi Arabia 296 A. Coastal archipelagos 301 Egypt 296 B. Outlying archipelagos 301 Introduction teur on the various aspects of the extent and delimitation of territorial waters has clearly demonstrated the com- A. For the purpose of this paper the term " internal plexity of the problems involved. The practices of and waters" means sea areas which are sufficiently closely views advocated by coastal States vary infinitely, as do linked to the land domain to be subject to the regime the views held by various international authorities and 1 pf internal waters. The waters between and inside the international law publicists. islands and islets of an archipelago may be subject to The legal aspects of the problem are mingled with this regime. and dependent upon various factors of a geographical, The term "marginal seas" means the belt of water economical, historical and political nature. Such factors * miles in width outside and parallel to the coastline have lately been increasingly invoked by coastal States °r outside and parallel to the outer limits of the internal for the concrete delimitation of their territorial waters haters where such internal waters exist. and for the solution of the various other problems concerning the seas adjacent to their coasts. And, The term " territorial waters" is applied as term inclusive of both the internal waters and the though the broad principles expressed by the Interna- marginal seas of a State. tional Court of Justice in the Anglo-Norwegian Fisheries Case2 to the effect that: T ' The very excellent research carried on by the "The delimitation of sea areas has always an international ^national Law Commission and its Special Rappor- law aspect: it cannot be dependent merely upon the law of the * TV of t}j jl PaPer was prepared at the request of the Secretariat 1 Judgement rendered on 18 December 1951, by the Inter- e n ted ment V * Nations but should not be considered as a state- national Court of Justice. I.C.J. Reports, 1951, p. 133. or tne views of the Secretariat. 2 Ibid., p. 132. 289 290 Preparatory documents coastal State as expressed in its municipal law. Although it is Hawaiian Islands, Indonesia, Japan, Philippines, Solomon true that the act of delimitation is necessarily a unilateral act, Islands, the Svalbard archipelago. because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States D. In addition to the difficulties arising out of the depends upon international law." wide variety of the geographical characteristics and the specific economic, historical and political factors in- unquestionably give a valid and accurate description volved in each case, the legal approach to the questions of governing legal principles, one must bear in mind involved is further complicated by the fact that such a that the various factors just mentioned may play an host of different legal principles — sometimes con- important role in determining the legality under flicting— may be invoked for the concrete delimitation international law of concrete acts of delimitation of of territorial waters. The rules of international law territorial waters. governing bays and fjords, the straight baseline system governing heavily indented coastlines, the rules govern- The difficulties in trying to establish a single ing international straits, the rules governing the terri- formula of fixed rules are especially evident where the torial waters of isolated islands, the principle of the complex problems concerning the delimitation of the freedom of the seas; these and other principles territorial waters of archipelagos are concerned. must constantly be borne in mind in answering the C. As a starting point the following definition of the question as to what rules of international law govern the term archipelago may be laid down: an archipelago is concrete delimitation of the territorial waters of an a formation of two or more islands (islets or rocks) archipelago. which geographically may be considered as a whole. One glance at the map is sufficient to show that the geographical characteristics of archipelagos vary widely. They vary as to the number and size of the islands and STUDIES OF INTERNATIONAL BODIES islets as well as with regard to the size, shape and AND VIEWS OF INTERNATIONAL LAW PUBLICISTS position of the archipelagos. In some archipelagos the 1. Institut de droit international islands and islets are clustered together in a compact group while others are spread out over great areas At its Lausanne session in 1888, the Institut de droit of water. Sometimes they consist of a string of islands, international placed on its agenda the question of the islets and rocks forming a fence or rampart for the extent and delimitation of territorial waters. The prob- mainland against the ocean. In other cases they protrude lems concerning the delimitation of the territorial from the mainland out into the sea like a peninsula or waters of coastal archipelagos were brought to the atten- a cape, like the Cuban Cays or the Keys of Florida. tion of the Institut, at its Hamburg session in 1889, by the Norwegian jurist Mr. Aubert (Annuaire de L'In- Geographically these many variations may be stitut, vol. 11, pp. 136, 139, et seq.). However, neither termed archipelagos. Quite another question is whether in the reports of 1892 or 1894 presented by Sir Thomas the same rules of international law will apply to these Barclay as Rapporteur, nor in the resolutions adopted highly different geographical formations where the by the Institut at the Paris conference of 1894, question of the delimitations of their territorial waters was any consideration given to these special questions is concerned. For the problems here involved it (See ibid., vol. 12, p. 104, et seq. and vol. 13, p. 328, may prove helpful to distinguish between two basic et seq.). types of archipelagos, namely: Article 2 of the resolutions of the Institut of 1894 1. Coastal archipelagos merely proposed that the extent of marginal seas should be fixed at six nautical miles from "low-water marks 2. Outlying (or mid-ocean) archipelagos all along the coast" (ibid., vol. 13, p. 329). For bays it Coastal archipelagos are those situated so close to a was provided in article 3 that the marginal sea should mainland that they may reasonably be considered part follow the sinuosities of the coast, with the exception and parcel thereof, forming more or less an outer that straight baselines could be drawn across the mouth coastline from which it is natural to measure the mar- of a bay where the width thereof did not exceed twelve ginal seas. The most typical example of such coastal nautical miles. The article provided, however, that archipelagos is the Norwegian "Skjaergard" stretching historic title might justify wider baselines. Articles 10 out almost all along the coast of Norway forming a and 11 of the resolutions laid down the rules governing fence — a marked outer coastline — toward the sea. straits. Other typical examples of such coastal archipelagos are It was not until 1927 that the question of the regime offered by the coasts of Finland, Greenland, Iceland, of the territorial waters of archipelagos was seriously Sweden, Yugoslavia, and certain stretches on the coasts discussed in the Institute.3 Thus the 5th Committee of of Alaska and Canada, just to mention a few of many the Institut with Sir Thomas Barclay and Professor examples. Alvarez as Rapporteurs, proposed an article 5 to the Outlying (mid-ocean) archipelagos are groups of following effect: islands situated out in the ocean at such a distance from the coasts of firm land as to be considered as an 3 The reports by Sir Thomas Barclay in the Annuaire of independent whole rather than forming part of or outer 1912, vol. 25, p. 375, et seq. ; 1919, vol. 27, p. 62, et seq. ; 1925, vol. 32, p. 146, et seq., did not take these questions up i°* coastline of the mainland. A few examples suffice in discussion. Nor did Professor Oppenheim do so in his report this connexion: the Faeroes, Fiji Islands, Galapagos, of 1913, ibid., vol. 26, p. 403 et seq. Document A/CONF.13/18 291 " Where a group of islands belongs to one coastal State and The draft of the Committee contained no specific where the islands of the periphery of the group are not further provisions concerning the territorial waters of archipela- apart from each other than the double breadth of the marginal gos (ibid., pp.
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