диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 17

Nonetheless, the Court reminded that the baselines formeasuring the breadth of the territorial sea could be drawn by several methods,73including in parallel to the indentations of the coast (the “trace parallèle” method);straightening to some extent the curvatures and indents of the coast (straightbaselines method); drawing arcs joining certain points of the coast (the “envelopesof arcs of circles method”). Here, the Court noted that none of the rocks drying atlow tide and serving, according to the Norwegian Decree of 1935, for drawingbaselines, stood more than 4 miles off the coast.

The Court deemed it lawful tomeasure the breadth of the territorial sea off the outer fringe of the skerries forming“a whole” with the mainland coast.Having made this conclusion, significant for the future practice of states, tothe effect that baselines can not only follow the general direction of the coast, butbe also designated by straight lines joining the points furthest from the mainland,the Court did not declare that Norway’s choice of the method of straight baselinescontradicted international law, and dismissed the UK’s arguments.It is noteworthy, that in a number of English publications, where thisjudgment is reproduced, the authors omit to mention that that judgment, to theextent it related to the lawfulness of straight baselines, was adopted by the UN ILCand subsequently taken into account by state participants of the 1st UN Conferenceon the Law of the Sea in 1958. Thus, the Convention on the Territorial Sea andContiguous Zone provides, among other things, that “the normal baseline formeasuring the breadth of the territorial sea is the low-water line along the coast asmarked on large-scale charts officially recognized by the coastal State” (Art.

3).However, where “the coastline is deeply indented and cut into, or if there is afringe of islands along the coast in its immediate vicinity, the method of straightbaselines joining appropriate points may be employed” (Art. 4).Another telling decision of the Court is the one on the width of the mouth ofbays that may be deemed internal waters of the coastal state. The Court took intoaccount that where the width of the bay’s mouth exceeds twice the breadth of theterritorial waters, that issue usually does not arise.

As to the UK, when the casewas being tried by the Court, it assumed that bay waters can be internal only wherethe bay mouth width does not exceed 10 nm. The ICJ did not agree with that74position, having stated that such a 10 nm limit for the bay mouth width is not arule of international law. The Court deemed it “necessary to point out thatalthough the ten-mile rule has been adopted by certain States both in their nationallaw and in their treaties and conventions,” and “although certain arbitral decisionshave applied it as between these States, other States have adopted a differentlimit.” Consequently, the Court found that “the ten-mile rule has not acquired theauthority of a general rule of international law.”I would like to emphasize that some current aspects of interpretation of thisjudgment have been noted both in the Russian and Anglo-American internationallaw doctrines as important in terms of practice.

Concerning the economic rationaleof Norway’s drawing of straight baselines under the 1935 Decree, the Court tooknotice of the economic significance of such delimitation for the local population.Norwegians have, “from time immemorial”, been fishing in the disputed sea areasthat were vital to their local economy.

They limited the sea areas, as described bythe Court, by way of drawing straight lines between the selected points in“preferred” grounds full of marine fauna. All that, being extremely crucial to thelocal communities of Norwegians, lasted for a very long time, having formed acertain “long usage”, which was “not to be overlooked” on the international legalplane.When assessing the legality of Norway’s straight baselines, it was pertinentto look into the reaction of interested states to such a delimitation.

Thus, the Courtnoted that Norway, as a result of enacting the Decree of 1869 and the Decree of1889, elicited no diplomatic protests on the part of the majority of states. At that,the said normative acts, as shown before, were viewed by the Court as precedentsunderlying a “well-defined and uniform system” established by Norway as regardsbaselines. The “passive” reaction of interested states to these acts (no protests ontheir part, save for the UK’s objections) allowed the Court to conclude that therewas no opposition on their part in principle, which meant that Norway’s conductwas legally recognised.75For these reasons, the Court concluded that Norway’s application of thestraight baselines method was caused by special geographic, economic andhistorical considerations, was justified by long, consistent and uniform application,was recognised by other states as not inconsistent with international law, and thushad to be deemed lawful.The Court also favoured Norway as regards the length of straight baselines,having stated that the existing international law had no universal understandingthat those lines were to be limited by length, and no uniform practice in thatrespect whatsoever.

There were proposals by some states (in particular, the UK) tolimit the length of such lines. The Court, however, to explain its rejection of theUK’s position, once again invoked the “vital” interests of the local populationfishing in the said areas from time immemorial.

That, according to the Court, alsosatisfied the reasonableness test.It appears that that judgment of the Court was relied upon by the NorwegianGovernment when it set only straight baselines along its Arctic coast (see below).The 1982 UNCLOS provides for a number of requirements for a coastalstate to draw straight baselines: the need to keep a “sufficiently close” linkbetween the inner bounds of the lines and the land domain of the coastal state, sothat they could fall under the regime of internal waters; the impermissibility of“departure to any appreciable extent from the general direction of the coast.”Moreover, where the method of straight baselines is applicable, account may betaken, in determining particular baselines, “of economic interests peculiar to theregion concerned, the reality and the importance of which are clearly evidenced bylong usage.” Nevertheless, the 1982 UNCLOS (just like the ICJ judgment of 1951)does not fix the maximum length of straight baselines.Nor does the 1982 UNCLOS contain a precise definition of the term “lowwater line”.

Foreign specialists on the law of the sea observe that the wording“low-water line” is not understood uniformly. Thus, English scholars note, that“there appears to be no uniformity in State practice as to whether the low-water76line is represented by the mean low-water spring tide, the lowest astronomical tideor some other low-water line.”Such authors, in particular, complain that neither the 1958 GenevaConventions, nor the 1982 UNCLOS contain a special rule on taking into accountthe permanent glaciers of the shelf.

This issue was “intentionally” omitted at the 3rdUN Conference:“One special geographical condition for which the Law of the Sea (andTerritorial Sea) Conventions make no provision is permanent ice shelves, found inparts of the Arctic and Antarctic. Such shelves may be many miles in width. It isuncertain whether the baseline should be the outer edge of the ice shelf or the edgeof the land. This issue was deliberately not discussed at UNCLOS III for fear of reopening the question of the legal status” of the Polar regions.100In the legislation of some states, these words mean the highest average levelof low tides for a certain period of time; in the law of other states, the “low-waterline” means the absolute lowest level of sea waters; still other states have the lowwater line fixed in an established custom.101The motive (including for a coastal Arctic state) to specify what thebaselines along its coastline are, is the international legal qualification: the waterslandward from the baseline of the territorial sea constitute the internal waters of astate (Art.

8(1) of the 1982 UNCLOS), that is, the coastal state has sovereignty inthose waters. But if the straight baselines method results in inclusion into thecoastal state’s internal waters of areas previously viewed as part of the territorialsea or high seas, that state must grant the right of innocent passage in such watersto other states’ vessels (Art. 8(2), 1982 UNCLOS). But the status of the watersdoes not change because of that: they remain the internal waters of the coastalstate.100Churchill and Lowe, op. cit., P.

33.101Minh N.N. International Law of the Sea. Translated from Vietnamese by G.G. Shinkaretskaya. Ed. by Yu.G.Barsegov. Moscow: Progress.1981. P. 75.77Let us emphasize: none of the five states coastal to the Arctic Ocean is anarchipelago state. This is why the rules of Art. 47 of the UNCLOS on themaximum length of straight archipelago baselines (the total of up to 100 nm; in thesaid exceptional case – up to 125 nm) do not apply to the Arctic Ocean.For the Arctic Ocean seas (or the arctic seas), one should underscore that inpractice, during the UN Conferences on the Law of the Sea, it has provenimpossible to elaborate – either in 1958, or in 1982 – a single treaty rule on themaximum length of straight baselines drawn between islands or groups of islands.Consequently, to determine such length, one has to consider the specificgeographic location, and the individual characteristics of each coastal state andeach maritime region.

In that case, one also has to take into account the presence ofspecial economic interests of coastal communities, and many other special factors,such as, for instance, the coastal state’s need to ensure its defence and security.Equally relevant would be the fact that artificial islands or other artificialstructures, even if used to specify the straight baselines, have no territorial sea oftheir own.102In practice, states set straight baselines of varying length. In the citedinternational law studies, scholars have stated that some states follow the rule thatthe average distance between two points of a straight baseline should equal somefixed length, from 60 to 120 nm.