диссертация (1169188), страница 18
Текст из файла (страница 18)
However, first, even that “average distance”allows one to use enormous straight baselines; second, many states have in theirpractice drawn straight baselines much more boldly, ignoring that figure offered bythe theorists, which resulted in the said “average distance” being bigger.Thus, in delimiting the waters of the Gulf of Martaban, Burma drew astraight baseline through its mouth that was around 220 nm. long (connecting thefurthest seaward points); from the islands that are the closest to the mainland,straight baselines drawn were 75 nm long, while the line closing the mouth of theriver Sittaung measures up to 120 nm.
(Declaration of the President of Burma of15 November 1968).102See a review of doctrines on that issue in the Moscow Journal of International Law. No. 2. 2018.78Guinea, by a Law dated 3 June 1964, drew a baseline from the south-westernextremity of Seno Island of the Tristan archipelago to the south-western extremityof Tamara Island, 120 nm. long (see Annex 1).
Mauritania, by a decree of 21January 1967, set a straight baseline joining the capes of Cap-Blanc and Timiris 89nm. long (see Annex 2). The Philippines have used straight baselines of up to 140nm. long; Ecuador – up to 147 nm.; and Indonesia – up to 120 nm.Such practice of drawing straight baselines encountered no protests from themajority of states.In the Anglo-Norwegian Fisheries case, as it may be recalled, Norway reliedon the 1935 Decree that provided for a system of 47 straight baselines; the lengthof 8 of them exceeded 20 nm., while the longest line amounted to 44 nm. in length.As to the UK, it challenged the lawfulness of Norway’s drawing of such lines.
Inits judgment, the ICJ found that the straight baselines system applied to measurethe breadth of Norway’s territorial waters per se was not inconsistent withinternational law. The ICJ made no prescriptions on the maximum length ofstraight baselines.Pursuant to Resolution 899 (IX) of the UN General Assembly of 14December 1954, the UN International Law Commission (ILC) systematized therules of the law of the sea it adopted earlier (in 1949-1953) into groups. At itssession in 1956, the ILC officially adopted the text of the articles on the law of thesea, as well as its commentary thereto.103 Since those articles subsequently becamethe basis for the respective articles of the 1958 Geneva Conventions on the Law ofthe Sea and those, in turn, underlay the analogous articles of the 1982 UNUNCLOS, the ILC Commentary is still highly relevant for practice and invoked bystates, including to substantiate their maritime legislation.
Moreover, the ILC’sstudies should, without doubt, be regarded as the “teachings of the most highlyqualified publicists” in the meaning of Art. 38 of the ICJ Statute.The ILC formulated the rule on the normal baseline as follows:“Article 4103The Work of the International Law Commission. Third Edition. United Nations.
New York. 1980. P. 36-44.79Subject to the provisions of article 5 and to the provisions regarding baysand islands, the breadth of the territorial sea is measured from the low-water linealong the coast, as marked on large-scale charts officially recognized by the coastalState.” (Note that the terms of this Article were preserved in the 1982 UNCLOS).In its Commentary to that Article, the ILC noted that under the effectiveinternational law, the breadth of the territorial sea was measured either from thelow-water line along the coast, or, in the circumstances set out in Art.
5 (that is, theArticle on straight baselines), from straight baselines, while the latter do notdepend on where the low-water line runs. That was how the ILC understood theICJ judgment delivered on 10 December 1951 in the Anglo-Norwegian Fisheriescase.104The term “low-water line” may, according to the ILC, have differentmeanings. In fact, states determine that line while not using any uniform specialrule.
The Commission stated that that line can be understood as the lowest tide linemarked on large-scale maps officially recognized by the coastal state. TheCommission opined, however, that the absence of specific conventional provisions,similar to those elaborated at the 1930 Codification Conference, would hardlycompel states to move such lines on their maps without sufficient grounds.That is, the ILC noted the right of the territorial sovereigns to mark on themaps the normal baselines even where no detailed prescriptions in the generalinternational law were in place.As to the legal regime of straight baselines, the ILC formulated thefollowing Article:“Article 51. Where circumstances necessitate a special regime because the coast isdeeply indented or cut into or because there are islands in its immediate vicinity,the baseline may be independent of the low-water mark. In these cases, the methodof straight baselines joining appropriate points may be employed.
The drawing of104I.C.J. Reports. 1951. P.116. For more details on this ICJ judgment see: Vylegzhanin A.V. ResheniyaMezhdunarodnogo Suda OON po sporu o razgranichenii morskikh prostranstv [Judgments of the International Courtof Justice in Disputes on the Delimitation of Maritime Space]. Moscow: Yuridicheskaya literatura. 2004.
P. 45-49.80such baselines must not depart to any appreciable extent from the general directionof the coast, and the sea areas lying within the lines must be sufficiently closelylinked to the land domain to be subject to the regime of internal waters. Accountmay nevertheless be taken, where necessary, of economic interests peculiar to aregion, the reality and importance of which are clearly evidenced by a long usage.Baselines shall not be drawn to and from drying rocks and drying shoals.2. The coastal State shall give due publicity to the straight baselines drawnby it.”It is important to note here, that the ILC’s original position was that for thecoastal state to draw straight baselines, its own intent sufficed, although it shouldsatisfy the criteria already existing in the effective (customary) international law.To draw straight baselines, a state did not require an agreement with theneighbouring state or addressing some international body.
That position of the ILCis relevant for practice to this day.Further, the ILC noted:“Where the establishment of a straight baseline has the effect of enclosing asinternal waters areas which previously had been considered as part of the territorialsea or of the high seas, a right of innocent passage… through those waters shall berecognized by the coastal State in all those cases where the waters have normallybeen used for international traffic.”In its Commentary to that Article, the ILC proceeded to discuss the positionof the ICJ which found, in its judgment in the Anglo-Norwegian Fisheries (1951),that “where the coast is deeply indented or cut into, or where it is bordered by aninsular formation such as the Skjaergaard in Norway, the baseline becomesindependent of the low-water mark and can only be determined by means of ageometric construction.”For this case, the ILC supplied scholarly interpretation of the ICJ’s positionwith the following bottom line:“In such circumstances the line of the low-water mark can no longer be putforward as a rule requiring the coastline to be followed in all its sinuosities.
Nor81can one characterize as exceptions to the rule the very many derogations whichwould be necessitated by such a rugged coast; the rule would disappear under theexceptions. Such a coast, viewed as a whole, calls for the application of a differentmethod; that is, the method of base-lines which, within reasonable limits, maydepart from the physical line of the coast...” And further: “The principle that thebelt of territorial waters must follow the general direction of the coast makes itpossible to fix certain criteria valid for any delimitation of the territorial sea; thesecriteria will be elucidated later. The Court will confine itself at this stage to notingthat, in order to apply this principle, several States have deemed it necessary tofollow the straight baselines method and that they have not encountered objectionsof principle by other States.
This method consists of selecting appropriate pointson the low-water mark and drawing straight lines between them. This has beendone, not only in the case of well-defined bays, but also in cases of minorcurvatures of the coast line where it was solely a question of giving a simpler formto the belt of territorial waters.”105The Commission, believing this Court judgment (rendered on that matter bya majority of 10 to 2 judges) to be a statement of an existing rule, took it for a basisin drafting the text of the Article on baselines.
The Commission found, however,that some rules favoured by the group of experts that worked in The Hague in1953, could supplement the criteria laid down by the Court.At its Sixth Session, the ILC included the following new sentence into thesecond paragraph of that Article:“In general, the maximum permissible length of a “straight baseline” shouldbe 10 miles. Such baselines may be drawn, where relevant, between the capes ofthe coastline or between any of such capes and an island situated less than fivemiles off the coast, or between two islands, provided that such capes and/or suchislands are not separated by a distance exceeding 10 miles.
Baselines may not bedrawn from drying rocks to shoals and towards such rocks and shoals.” [En général105It is noted in the ILC materials, that that excerpt was somewhat distorted by typographical errors in the Court’sprintshop.82la longueur maximum admissible pour une “ligne de base droite” sera de 10 milles.Ces lignes de base pourront être tracées, le cas échéant, entre promontoires de lacôte ou entre un promontoire et une île, pourvu que cette ligne soit située à moinsde 5 milles de la côte, ou enfin entre deux îles, pourvu que ces promontoires et ouces îles ne soient pas séparés entre eux par une distance de plus de 10 milles.
Leslignes de base ne seront pas tirées vers des fonds affleurants à basse mer ni à partirde ceux-ci.]106The states whose position was that the 10-mile maximum length for astraight baseline and the 5-mile maximum for its distance from the coast seemedarbitrary and, moreover, was “inconsistent with the Court’s judgment”, voicedtheir objections against that provision proposed by the ILC.In response, some members of the Commission noted that the Commissionhad elaborated those prescriptions to apply “as a general rule” which could bedeparted from, if justified by special circumstances. According to them,conversely, the criteria set by the Court, were insufficiently precise for generalapplication.
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